[Cite as State v. Lynch, 2011-Ohio-3062.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 95770


                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                                     vs.


                                    ANGELA M. LYNCH

                                                     DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED



                                  Criminal Appeal from the
                              Cleveland Heights Municipal Court
                                    Case No. CRB 0901993

        BEFORE:            E. Gallagher, J., Sweeney, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED:                              June 23, 2011
ATTORNEY FOR APPELLANT
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Edward S. Wade, Jr.
75 Public Square
Suite 1111
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Kim T. Segebarth
City Prosecutor
City of Cleveland Heights
40 Severance Circle
Cleveland Hts., Ohio 44118




EILEEN A. GALLAGHER, J.:

      {¶ 1} Angela M. Lynch appeals her conviction entered in the Cleveland

Heights Municipal Court.      Lynch argues the trial court erred when it

provided a lesser included offense instruction to the jury, and when it failed

to charge the jury on self-defense and mutual combat. For the following

reasons, we affirm the judgment of the trial court.

      {¶ 2} On September 15, 2009, Lynch attended an emergency sports

meeting at Lutheran East High School for her son, J.L. At that time, J.L.

lived with his father, James Hudson-Bey and his live-in girlfriend, Rosalyn

Stewart. J.L. attended Lutheran East High School and was a member of
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the football team. On September 15, 2009, the football team held a meeting

to discuss an out-of-town trip, which required parental permission.        J.L.

attempted to contact his mother and father to attend the meeting but both

stated that they had prior commitments. As a last resort, J.L. contacted

Stewart, who agreed to attend the meeting on behalf of James Hudson-Bey.

     {¶ 3} Unbeknownst to J.L., Lynch arrived at the high school to attend

the meeting.    She sat near Stewart and the two women immediately

engaged in a verbal confrontation.   Lynch and Stewart       sat through the

remainder of the meeting without further incident, but then continued their

confrontation as they, along with J.L., left the school. Stewart was walking

ahead of Lynch and J.L. when Lynch began yelling at her.               Stewart

responded and as the women exited the double set of doors that led to a

parking area, Lynch grabbed Stewart by the hair and struck her. Stewart

fought back and during the fight, Lynch bit Stewart’s left hand. The fight

was broken up by Andrew Pearson, a concessioner, who was in the area.

     {¶ 4} Stewart walked to the Cleveland Heights Police Department and

filed a complaint for assault against Lynch.     The officers photographed

Stewart’s hand and then Stewart sought medical attention for her injury.

     {¶ 5} On    September   15,   2009,   the   Cleveland   Heights    Police

Department issued a warrant charging Lynch with one count of assault, a
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first-degree misdemeanor in violation of R.C. 2903.13(A). Lynch pleaded not

guilty.   The case proceeded to a jury trial on February 5, 2010, which

resulted in a hung jury. A second trial commenced on September 17, 2010.

At the latter trial, the City presented the testimony of Stewart, J.L., and

Officer Thomas Decaro. In response, the defense presented the testimony of

Andrew Pearson and Lynch.

      {¶ 6} At the close of the evidence, the defense requested three jury

instructions.   First, defense counsel requested a jury instruction on the

lesser included offense of disorderly conduct, a request with which the city

prosecutor agreed.    Defense counsel then requested jury instructions on

self-defense and mutual combat. The trial court granted defense counsel’s

request as to the lesser included offense charge and to the self-defense

charge but denied counsel’s request for a charge on mutual combat. Defense

counsel objected.

      {¶ 7} The jury returned a verdict of guilty on the charge of disorderly

conduct, in violation of Cleveland Heights City Ordinances 509.03(A)(1).

The trial court sentenced Lynch to a suspended jail term of sixty days, active

probation for two months, inactive probation for four months, and imposed a

fine of five-hundred dollars, of which all but one hundred and twenty-five

dollars was suspended. On September 22, 2010, Lynch appealed, raising
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the two assignments of error contained in the appendix to this opinion.

      {¶ 8} In her first assignment of error, Lynch argues the trial court

erred when it charged the jury on the lesser included offense of disorderly

conduct, as disorderly conduct is not a lesser included offense of assault.

This assignment of error lacks merit.

      {¶ 9} Initially, we note that Lynch’s trial counsel requested the charge

of disorderly conduct.    Prior to the commencement of trial, Lynch’s trial

counsel provided the City Prosecutor with his proposed jury instructions, and

the court had an opportunity to review those proposed instructions, which

included the lesser included offense of disorderly conduct. (Tr. 3.) At the

conclusion of the evidence, Lynch’s counsel again requested of the court that

instruction on the lesser included offense of disorderly conduct be provided to

the jury. Tr. 124-125.

      {¶ 10} Accordingly, the record reflects that not only did Lynch’s trial

counsel fail to object to the lesser included offense instruction, but that he, in

fact, requested it in writing and in open court. We, therefore, review the

given instructions for plain error. State v. Darkenwald, Cuyahoga App. No.

83440, 2004-Ohio-2693. The standard for plain error is “but for the error,

the outcome of the trial clearly would have been otherwise.” State v. McKee

(2001), 91 Ohio St.3d 292, 294, 744 N.E.2d 737, citing Crim.R. 52(B); State v.
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Johnson (2000), 88 Ohio St.3d 95, 723 N.E.2d 1054. “Notice of plain error

under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.

      {¶ 11} We decline to find plain error in this case.   In State v. Young,

Cuyahoga App. No. 79779, 2002-Ohio-1274, this court held that disorderly

conduct, as defined in R.C. 2917.11 is a lesser included offense of assault, as

provided in R.C. 2903.13.      See, also, State v. Koreny (Apr. 12, 2001),

Cuyahoga App. No. 78074; State v. Reider (Aug. 3, 2000), Cuyahoga App. No.

76649, State v. Sanchez (June 3, 1999), Cuyahoga App. No. 73926. Although

the jury found Lynch guilty of disorderly conduct as defined in Cleveland

Heights Ordinances 509.03(a)(1), the language in 509.03(a)(1) is identical to

that of R.C. 2917.11. Specifically, 509.03(a)(1) provides as follows:

      “(a) No person shall recklessly cause inconvenience, annoyance or
      alarm to another, by doing any of the following:

      “(1) Engaging in fighting, in threatening harm to persons or property,
      or in violent or turbulent behavior.”

      {¶ 12} R.C. 2917.11 provides as follows:

      “(A) No person shall recklessly cause inconvenience, annoyance, or
      alarm to another by doing any of the following:

      “(1) Engaging in fighting, in threatening harm to persons or property,
      or in violent or turbulent behavior.”
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         {¶ 13} Accordingly, consistent with this Court’s prior holdings, we find

that disorderly conduct, as defined in Cleveland Heights Ordinances 509.03

is a lesser included offense of assault, as defined by R.C. 2903.13. Young,

Koreny, Reider, Sanchez. We therefore overrule Lynch’s first assignment of

error.

         {¶ 14} In her second assignment of error, Lynch argues the trial court

erred in failing to instruct the jury on self-defense and mutual combat. We

disagree with Lynch’s argument.

         {¶ 15} The trial court did instruct the jury on self-defense.   (Tr. 169.)

Accordingly, we will limit our discussion in this assigned error to Lynch’s

argument that the court failed to give an instruction on mutual combat.

         {¶ 16} In putting forth this argument, Lynch fails to cite to any legal

authority in support of her claim that the jury should have been instructed

on mutual combat. Moreover, this court is unable to locate any evidence

that the defense of mutual combat exists. In State v. Milling, Summit App.

No. 24402, 2009-Ohio-3002, the ninth appellate district noted that the

situations of assault and battery, mutual combat, illegal arrest, and

discovering a spouse in the act of adultery are cases in which the jury

instruction of voluntary manslaughter is appropriate. The court then cited
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Black’s Law Dictionary for the definition of mutual combat: “[a] consensual

fight on equal terms — arising from a moment of passion but not in

self-defense — between two persons armed with deadly weapons.” Black’s

Law Dictionary 1045 (8th Ed.2004).

      {¶ 17} This line of case law is the only place we find mention of the

term mutual combat. Clearly, the facts as outlined above do not apply to

the instant case. We find no other authority in support of Lynch’s claim.

      {¶ 18} An appellate court may disregard an assignment of error

pursuant to App.R. 12(A)(2) if an appellant fails to cite to any legal authority

in support of an argument as required by App.R. 16(A)(7). State v. Martin

(July 12, 1999), Warren App. No. CA99-01-003, citing Meerhoff v. Huntington

Mtge. Co. (1995), 103 Ohio App.3d 164, 658 N.E.2d 1109; Siemientkowshi v.

State Farm Ins., (Aug. 18) Cuyahoga App. No. 85323, 2005-Ohio-4295. “If

an argument exists that can support this assigned error, it is not this court’s

duty to root it out.” Cardone v. Cardone (May 6, 1998), Summit App. Nos.

18349 and 18673.

      {¶ 19} Based on the foregoing, we overrule Lynch’s second assignment

of error.

      Judgment affirmed.
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       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the lower court to

carry this judgment into execution.    The defendant’s conviction having been affirmed, any

bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KENNETH A. ROCCO, J., CONCUR


                                         Appendix

Assignments of Error:

       “I. The trial court erred and abused its discretion in its
       charge to the jury resulting in the jury finding appellant guilty
       of disorderly conduct, a third degree misdemeanor, as a lesser
       included offense of assault under R.C. 2903.13(A).”

       “II. The trial court erred and abused its discretion by not
       granting defendant’s requested charge on self-defense and
       mutual combat.”
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