[Cite as Toledo v. Owens, 2019-Ohio-311.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio/City of Toledo                     Court of Appeals Nos. L-18-1056
                                                                       L-18-1057
        Appellee
                                                 Trial Court Nos. CRB-17-13177
v.

Tationa M. Owens                                 DECISION AND JUDGMENT

        Appellant                                Decided: February 1, 2019

                                            *****

        David Toska, Chief Prosecutor, for appellee.

        Lawrence A. Gold, for appellant.

                                            *****


        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal, appellant, Tationa Owens, appeals the judgments

of the Toledo Municipal Court finding her guilty of one count of domestic violence in

violation of R.C. 2919.25(A), a misdemeanor of the first degree in case No. CRB-17-

13177-0102, and one count of assault in violation of R.C. 2903.13(A), a misdemeanor of
the first degree in case No. CRB-17-13177-0202, and sentencing her to a suspended

sentence of 180 days in jail. For the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} The following facts are taken from the bench trial held on February 15,

2018. At the trial, the state called as its only witness, the alleged victim, K.J. K.J.

testified that on the evening of October 19, 2017, he arrived at a bar on Nebraska

Avenue, in Toledo, Ohio. There, he ran into appellant, who is his ex-girlfriend and the

mother of one of his children. K.J. testified that appellant approached him and started

pushing and grabbing him, and asking him to go outside so that they could talk. K.J.

refused, and then went to the other side of the bar. He testified that appellant followed

him and continued to harass him, at which point he called 911. According to K.J., while

he was talking on the phone, appellant threw a cup of liquor in his face and eyes.

Appellant was then kicked out of the bar. K.J. testified that he composed himself, and

about ten minutes later, left the bar to go home. The manager escorted K.J. to his car. As

they were walking, K.J. testified that appellant came speeding over to him in her car,

jumped out of the car, and started spraying him in the face with mace. Appellant then

fled the scene.

       {¶ 3} After K.J.’s testimony, the state rested. Appellant moved for an acquittal

pursuant to Crim.R. 29, which the trial court denied. Appellant then took the stand in her

own defense.

       {¶ 4} Appellant testified that K.J. had been physically abusive toward her in their

relationship together. She explained that on the night of the incident, she was outside of


2.
the bar when she saw K.J. walking down the sidewalk. Appellant denied that she saw

K.J. at any point inside of the bar. As K.J. was walking, appellant said to him, “Hey, did

you forget we had a child together?” Appellant then criticized K.J. for not taking care of

his child and for going around partying. She testified that at that point, K.J. slapped her,

causing her to drop her keys and phone. Appellant stated that another person picked up

her phone and keys, and as he was handing them to her, K.J. was approaching again.

Appellant testified that is when she maced him, because she thought that he was going to

strike her again.

       {¶ 5} After hearing the testimony, the trial court found that appellant had not met

the burden of proving self-defense by a preponderance of the evidence. Therefore, the

trial court found appellant guilty, found that the two offenses merged, and sentenced her

to a suspended sentence of 180 days in jail and one year of inactive probation.

                                II. Assignments of Error

       {¶ 6} Appellant has timely appealed the trial court’s judgments of conviction, and

now asserts two assignments of error for our review:

              1. The trial court erred to the prejudice of Appellant in finding that

       Appellant failed to establish the affirmative defense of self-defense.

              2. Appellant received ineffective assistance of counsel in violation

       of her rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, § 10 of the Ohio Constitution.




3.
                                         III. Analysis

       {¶ 7} In her first assignment of error, appellant presents what is essentially a

manifest weight argument in that she contests the trial court’s finding that she did not

prove self-defense by a preponderance of the evidence.

       {¶ 8} When reviewing for manifest weight,

              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 jury 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. Lang, 129 Ohio

       St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v.

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

       {¶ 9} To be entitled to the affirmative defense of self-defense against non-deadly

force, appellant must prove by a preponderance of the evidence “(1) that the defendant

was not at fault in creating the situation giving rise to the altercation; and (2) that [she]

had reasonable grounds to believe and an honest belief, even though mistaken, that [she]

was in imminent danger of bodily harm and [her] only means to protect [herself] from

such danger was by the use of force not likely to cause death or great bodily harm.” State

v. D.H., 169 Ohio App.3d 798, 2006-Ohio-6953, 865 N.E.2d 90, ¶ 30 (10th Dist.).




4.
       {¶ 10} In support of her argument, appellant relies on her testimony that K.J.

slapped her, and that she had a reasonable belief that he was going to strike her again.

However, in finding appellant guilty, the trial court noted that it did not find either

appellant or K.J. to be credible.1 “Although under a manifest weight standard we

consider the credibility of witnesses, we extend special deference to the trier-of-fact’s

credibility determinations given that it is the trier-of-fact that has the benefit of seeing the

witnesses testify, observing their facial expressions and body language, hearing their

voice inflections, and discerning qualities such as hesitancy, equivocation, and candor.”

Toledo v. Whiting, 6th Dist. Lucas Nos. L-17-1133, L-17-1247, 2019-Ohio-56, ¶ 36,

citing State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. Here, while we

extend deference to the trial court’s determination of credibility, our review leads us to

determine that to the extent appellant or K.J. are credible, they are equally credible.

Thus, given the conflicting accounts of the event by appellant and K.J., we find that this

is not the special case where the trial court clearly lost its way and created a manifest

miscarriage of justice. Therefore, we hold that appellant’s conviction is not against the

manifest weight of the evidence.

       {¶ 11} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 12} In her second assignment of error, appellant argues that her trial counsel

was ineffective for failing to present witnesses that would have corroborated her version

of the event.


1
 Despite finding neither party to be particularly credible, the trial court still found
appellant guilty because she admitted to spraying K.J. with mace.

5.
       {¶ 13} To prevail on a claim of ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. “The object of an ineffectiveness claim is not to

grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” Id. at 697.

       {¶ 14} Here, we find that appellant has failed to satisfy both prongs of the

Strickland test. While appellant argues that trial counsel should have called additional

witnesses, appellant does not point to who those witnesses might be or to what they might

state in their testimony. Thus, the existence of any corroborating witnesses is purely

speculative, and as such appellant has not demonstrated that counsel’s performance was

deficient, or that a reasonable probability exists that the result of the proceedings would

have been different. Therefore, we hold that appellant’s claim of ineffective assistance of

counsel must fail.

       {¶ 15} Accordingly, appellant’s second assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 16} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgments of the Toledo Municipal Court are affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


6.
       {¶ 17} Finally, we sua sponte note that the trial court’s judgment of conviction

entered on April 19, 2018, does not state that it merged the two offenses. Thus, we

remand the matter to the trial court to enter a nunc pro tunc judgment entry reflecting that

the offenses are merged for purposes of sentencing.



                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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