[Cite as State v. Anthony, 2020-Ohio-861.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                     :         OPINION

                   Plaintiff-Appellee,              :
                                                              CASE NO. 2019-A-0064
         - vs -                                     :

 EUGENE C. ANTHONY,                                 :

                   Defendant-Appellant.             :


 Criminal Appeal from the Ashtabula County Court, Eastern District, Case No. 2018 CRB
 00251 E.

 Judgment: Affirmed.


 Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
 Ohio 44047 (For Plaintiff-Appellee).

 Katherine S. Riedel, Law Offices of Katherine S. Riedel, Jefferson Commercial Park,
 1484 State Route 46 North, No. 5, Jefferson, Ohio 44047 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      Appellant, Eugene Anthony, was convicted of assault after a bench trial. He

appeals arguing his conviction is against the manifest weight of the evidence. We affirm.

        {¶2}      Anthony’s sole assigned error alleges:

        {¶3}      “The trial court erred in finding appellant guilty of assault when the evidence

established the affirmative defense of self-defense.”
       {¶4}   Anthony submits that he should not have been found guilty because the

evidence showed he was acting in self-defense. We disagree.

       {¶5}   “Self-defense is an affirmative defense that requires a defendant to prove

three elements by a preponderance of the evidence: ‘(1) the defendant was not at fault in

creating the violent situation, (2) the defendant had a bona fide belief that [he] was in

imminent danger of death or great bodily harm and that [his] only means of escape was

the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the

danger.’ State v. Thomas (1997), 77 Ohio St.3d 323, 326, 673 N.E.2d 1339; R.C.

2901.05.” State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36.

       {¶6}   If proven, self-defense relieves a defendant of criminal liability for the force

that he used. State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d

1097, ¶22.     The manifest-weight standard is the proper standard of review when

reviewing a claim that evidence supports self-defense because a self-defense

argument does not seek to negate an element of the offense charged but seeks to relieve

the defendant from culpability. Cleveland v. Williams, 8th Dist. Cuyahoga No. 81369,

2003-Ohio-31, ¶ 10, citing State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986).

       {¶7}   While a court of appeals may determine a conviction is sustained by

sufficient evidence, it may nevertheless conclude that the judgment is against

the weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678

N.E.2d 541 (1997).

       {¶8}   “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater amount


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of credible evidence sustains the issue which is to be established before them. Weight is

not a question of mathematics but depends on its effect in inducing belief.’ (Emphasis

added.) Black's, supra, at 1594.

      {¶9}   “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘“thirteenth juror”’ and disagrees with the factfinder's resolution of the conflicting

testimony. [Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211]. See, also, State v.

Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720–721

(‘The court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the [factfinder] clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’).” State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997).

      {¶10} R.C. 2903.13(A), assault, provides: “No person shall knowingly cause or

attempt to cause physical harm to another * * *.”

      {¶11} In May of 2018, Anthony’s neighbor, Martin Patton, heard someone mowing

their lawn after 10 p.m. So, Patton, while on his front porch, shined a high-powered

flashlight and confirmed it was Anthony mowing his lawn across the street. Patton then

walked across the street toward Anthony’s yard to talk with him. The two knew one

another as longtime neighbors and did not have a troubled past. They have played frisbee

golf together, and Patton’s daughter had mowed Anthony’s grass on one occasion.




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      {¶12} It was raining out, so after Patton crossed the street, he was looking at the

ground to prevent himself from slipping when Anthony got off his mower, came toward

Patton, and shoved him to the ground. Patton landed on his back. He recalls being

knocked out for a moment, and when he came to, Anthony was yelling and swearing at

him and complaining that Patton was trespassing. Patton said he had pain in his head

and neck and was wet and covered in mud.

      {¶13} Patton returned to his home and called the police.          Ashtabula County

Sherriff’s Deputy Patrick Evans and Sergeant Bryan Rose responded and spoke with

Patton. Evans testified that Patton had mud on his backside. Evans also recalls Patton

complaining of head and neck pain but said he refused emergency medical treatment.

Evans does not recall Patton telling him that he lost consciousness from the fall and could

not determine where in the yard Patton had fallen. Evans observed that the lawn was

recently mowed.

      {¶14} In order to speak with Anthony, the officers repeatedly beat on Anthony’s

door, but no one answered. The officers also knocked on Anthony’s windows with no

response.

      {¶15} Anthony testified on his own behalf and explained that he worked a 15-hour

day and was heading out of town very early the next morning. So, he had to get his lawn

mowed even though it was late. Anthony recalls someone approaching him in the dark

with something shiny in their hand. He said he thought the person had a knife. Thus,

Anthony jumped off his mower because he felt threatened and pushed the person. He

told them to leave because they were trespassing.

      {¶16} Anthony repeatedly states during his testimony that he was defending

himself since the other person was on his property. Anthony testified that he then went


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into his house and passed out asleep until the next day. He denies hearing police banging

on his door or windows.

       {¶17} On cross-examination, Anthony concedes that just before this altercation

he saw someone “spotlighting” him from Patton’s porch. Anthony said he thought they

were probably upset with him for the late-night mowing. Notwithstanding, Anthony denied

knowing the trespasser in his yard was Patton. Anthony claims this person was charging

at him and that Anthony panicked. He denies that Patton had a flashlight when he

approached him and instead recalls Patton only holding a cigarette and a zippo lighter.

       {¶18} In rejecting Anthony’s self-defense argument, the trial court finds his

testimony incredible, stating in part that Anthony had worked more than 15 hours that

day, was tired, and did not believe that cutting the lawn after 10 p.m. would raise any ire

from his neighbors. The court continued:

       {¶19} “[Anthony] also testified that he saw a flashlight from across the street and

assumed at that point that it was his neighbor, and * * * when the individual approached

him, * * * he had a reason to feel that he was in harm’s way.

       {¶20} “Well, the Court finds that that is not believable and that he knew it was his

neighbor. He wanted to get his lawn cut, and, unfortunately for him, being in the tired

mood that he was in and under pressure, * * * - - he lost his temper and put his hands on

his neighbor, pushed him down.

       {¶21} “[Anthony’s] assertion that he went right back in the house and was so

exhausted and fell asleep after an event like this, with two deputies approaching the

house, one of them testifying that he banged on the door and that [Anthony] was just dead

asleep * * *, is not believable. I believe he was avoiding contact with law enforcement.”




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       {¶22} Thus, the trial court rejected his self-defense claim based on the first two

self-defense prongs and did not address the third. As for the first, in finding that Anthony

lost his temper because he was tired, the court rejected the predicate for the first prong,

i.e., that Anthony was not at fault in creating the violent situation. And in finding that

Anthony knew it was his neighbor that was approaching him that night in the rain, the

court also rejected the second prong for self-defense, i.e., that Anthony had a bona fide

belief that he was in imminent danger of death or great bodily harm and that his only

means of escape was the use of force.

       {¶23} Consistent with the court’s analysis, Anthony’s claim that he was in fear of

imminent danger is dubious considering his admission that only moments earlier, he saw

someone shining a flashlight toward him from Patton’s porch. Further, there was nothing

evidencing that the two men had a troubled past with one another warranting Anthony’s

claim of being in fear for his safety.

       {¶24} Thus, we do not find that the court clearly lost its way or that this is an

exceptional case in which the evidence weighs heavily against the conviction.

Accordingly, Anthony’s sole assigned error lacks merit.

       {¶25} The trial court’s decision is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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