[Cite as State v. Fields, 2016-Ohio-8212.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )
        PLAINTIFF-APPELLEE,                       )
                                                  )            CASE NO. 15 MA 0193
V.                                                )
                                                  )                    OPINION
EDWARD FIELDS,                                    )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Youngstown
                                                  Municipal Court of Mahoning County,
                                                  Ohio
                                                  Case No. 14 CRB 1162

JUDGMENT:                                         Affirmed

APPEARANCES:
For Plaintiff-Appellee                            Kathleen Thompson
                                                  Assistant Prosecutor
                                                  City of Youngstown Prosecutor’s Office
                                                  26 S. Phelps Street, 4th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant                           Attorney John D. Falgiani, Jr.
                                                  P.O. Box 8533
                                                  Warren, Ohio 44484


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                  Dated: December 15, 2016
[Cite as State v. Fields, 2016-Ohio-8212.]
DONOFRIO, P.J.

        {¶1}     Defendant-appellant, Edward Fields, appeals from a Youngstown
Municipal Court judgment convicting him of domestic violence after a jury trial.
        {¶2}     On June 1, 2014, Youngstown Police responded to a 911 call from
appellant who stated that his girlfriend and the mother of his child, C.K., was
“trashing” his house. The two had gone out drinking together that night. They began
arguing at a bar and the argument continued on the way back to appellant’s house.
According to appellant, when they arrived back at his house, he wanted C.K. to leave
but she followed him into his house. Their argument escalated and C.K. began to
throw things. The argument continued as C.K. refused to leave. Appellant eventually
called 911 asking the police to get C.K. out of his house.         During the 911 call,
appellant repeatedly told C.K. to leave. He also stated that C.K. hit him in the head
with a liquor bottle. Also during the 911 call, C.K. can be heard screaming and crying
and appellant can be heard threatening her.
        {¶3}     Upon arriving at the scene, a police officer witnessed appellant jump up
and kick C.K. in the face, causing her to fall over. C.K. was bleeding from the face
and her lip was cut.
        {¶4}     Officers arrested appellant and charged him with domestic violence, a
first-degree misdemeanor in violation of R.C. 2919.25(B).
        {¶5}     The matter proceeded to a jury trial. The jury found appellant guilty as
charged. Subsequently, the trial court sentenced appellant to 180 days in jail, 150
days suspended, and a $250 fine.
        {¶6}     Appellant filed a timely notice of appeal on October 28, 2015. The trial
court granted appellant’s motion to stay his sentence pending this appeal. Appellant
now raises three assignments of error.
        {¶7}     Appellant’s first assignment of error states:

                 THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT
        OF THE EVIDENCE.

        {¶8}     Appellant argues here that his conviction was against the manifest
                                                                                  -2-


weight of the evidence. He notes that C.K. had no independent recollection of the
altercation due to her intoxication at the time.      Additionally, he points us to his
testimony that C.K. hit him and was destroying his property. Appellant asserts there
is no evidence that he was responsible for starting the altercation. Instead, he claims
the evidence was clear that he was defending himself and just wanted C.K. to leave
and stop damaging his property.
       {¶9}   In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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.             State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1987). “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.’” Id. (Emphasis sic.) In making
its determination, a reviewing court is not required to view the evidence in a light
most favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
       {¶10} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of fact
who sits in the best position to judge the weight of the evidence and the witnesses'
credibility by observing their gestures, voice inflections, and demeanor.         State v.
Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
                                                                                -3-


       {¶11} The jury convicted appellant of domestic violence in violation of R.C.
2919.25(B), which provides that “[n]o person shall recklessly cause serious physical
harm to a family or household member.”          C.K. is considered appellant’s family
member because she and appellant have a child together. R.C. 2919.25(F)(1)(b).
       {¶12} In determining whether the jury's verdict was against the manifest
weight of the evidence, we must consider the evidence put forth at trial.
       {¶13} The state called two witnesses, Youngstown Police Officer Jerry Fulmer
and C.K.
       {¶14} Officer Fulmer was the first witness. Officer Fulmer was dispatched to
a call of a man wanting an intoxicated woman, who was “tearing up” his house, out of
his house on Winona Drive. (Tr. 75). As he pulled up to the house, Officer Fulmer
saw appellant jump up and kick C.K. in the face.          (Tr. 76).   This caused both
appellant and C.K. to fall to the ground. (Tr. 76). Officer Fulmer immediately ran
over and placed appellant in handcuffs and called an ambulance. (Tr. 77). Officer
Fulmer testified that C.K. was bleeding from the face and had a split lip. (Tr. 78). He
also stated that she was hysterical and intoxicated. (Tr. 78). Officer Fulmer stated
that C.K. told him she was drunk and did not recall exactly what happened but she
knew that her face hurt. (Tr. 78). Officer Fulmer also stated appellant told him that
he too had been drinking and he appeared to the officer to be intoxicated; however,
he was more coherent than C.K. (Tr. 79).
       {¶15} Officer Fulmer went on to testify that appellant told him C.K. had struck
him with a liquor bottle. (Tr. 80). But when the officer checked appellant for injuries,
he did not find any. (Tr. 80-81). Additionally, the officer did not find a liquor bottle.
(Tr. 81).
       {¶16} C.K. testified next. She testified that at the time of the incident she and
appellant had been in a relationship for two years and had a six-month-old son
together. (Tr. 90-91). On the night in question, C.K. stated she and appellant went
out to a bar. (Tr. 92). She stated she got very intoxicated. (Tr. 92). The next thing
she remembered was waking up in her bed. (Tr. 92-93). C.K. stated her body was a
                                                                                -4-


little achy and she had a small amount of blood on her lip. (Tr. 93). She did not
remember any involvement with the police. (Tr. 93).
        {¶17} The defense called three witnesses.
        {¶18} Iysha Fant-Newell was the first defense witness. Fant-Newell’s house
is “catty-corner” from appellant’s house. (Tr. 100). On the night in question, Fant-
Newell heard screaming so she went out onto her porch to see what it was. (Tr.
100). She stated she could hear C.K. yelling from inside appellant’s house that she
was not getting out. (Tr. 100-101). And she saw appellant outside on the phone. (Tr.
101).   Next, Fant-Newell watched as C.K. came outside and threw a bottle at
appellant. (Tr. 101). Fant-Newell then went back into her house. (Tr. 101-102).
When she came back outside, Fant-Newell stated that the police had arrived. (Tr.
102). She did not see appellant kick C.K., but she stated she was not outside when
the police first arrived. (Tr. 102, 108). Fant-Newell stated that the lighting conditions
on the street were poor; however, she also stated that there was a streetlight “that’s
right there that you can see.” (Tr. 103).
        {¶19} Detective Charles Swanson was the next defense witness. Detective
Swanson is the officer in charge of the Youngstown 911 Center. (Tr. 110). He made
a copy of appellant’s call to 911 on the night in question. (Tr. 111). Defense counsel
played the 911 call for the jury. (Def. Ex. A).
        {¶20} On the 911 recording, appellant tells the 911 operator that C.K. will not
leave his house. Appellant then makes numerous statements to C.K. such as, “get
up out my house,” “get your hands off me,” and “bitch I bust your fuckin’ head.” C.K.
can also be heard screaming. The operator then asks if anyone is hurt and appellant
responds “no.” A loud slap is heard followed by C.K. crying and screaming. C.K. can
also be heard saying, “Please help me, he is kicking me.”            The operator tells
appellant to walk away from C.K. Appellant tells the operator C.K. is throwing pots
and pans in his house. Next, appellant yells at C.K., “I’m gonna let my dogs loose on
your ass.”    Then appellant says to C.K., “throw something else at me again.”
Appellant then tells the operator that C.K. hit him in the head with a liquor bottle.
                                                                                 -5-


Throughout the entire call C.K. can be heard yelling and/or crying in the background.
Additionally, appellant tells C.K. repeatedly to get out of his house.
       {¶21} Appellant was the final witness.        He testified that on the night in
question he and C.K. went out to a bar called Yank’s. (Tr. 115). At the bar, C.K. had
numerous shots and appellant had a few drinks. (Tr. 116). Appellant stated they
were at the bar for three hours. (Tr. 116). On the way home, the two argued about
an incident that occurred in the bar where appellant accidentally burned another
woman with his cigarette and C.K. became jealous when he apologized to her. (Tr.
116-117). Appellant stated that when they arrived back at his house, he got out of
the van and assumed C.K. was going home but instead she followed him into his
house. (Tr. 117). Appellant testified that he told C.K. to go home but she insisted
she was not leaving. (Tr. 117). Appellant stated that the two continued to argue.
(Tr. 118).   He stated that C.K. slapped his phone out of his hand.            (Tr. 119).
Appellant testified that C.K. ran around his house throwing things. (Tr. 119, 121). He
then called 911 to get her out of his house. (Tr. 121). Appellant stated C.K. was
following him around his house pushing him. (Tr. 121). He then walked out of his
house and back in but she followed him. (Tr. 122). Appellant stated that C.K. was
throwing pictures off of the wall and throwing things at his television. (Tr. 123).
       {¶22} Appellant testified that by this time he was going to get his corso cane
mastiff dogs from the backyard to “let loose” at C.K.. (Tr. 123). While outside, he
stated that C.K. threw a bottle of liquor at him that hit him in the chest. (Tr. 124).
Then he stated the police arrived and grabbed him. (Tr. 124).
       {¶23} Appellant admitted on cross examination that he was going to let his
dogs loose, each of which weighed over 100 pounds, to bite C.K. (Tr. 132-133).
Appellant also stated the only time he put his hands on C.K. was to push her off of
him.   (Tr. 134).   And appellant stated that the sound on the 911 recording that
sounded like a slap was him putting his forearm up to get C.K. off of him. (Tr. 137).
He specifically denied kicking C.K. in the head. (Tr. 141). Appellant stated that
Officer Fulmer’s “vision and what he may have seen is not what happened.” (Tr.
                                                                               -6-


141).
        {¶24} Based on the above evidence, we cannot conclude that the jury’s
verdict was against the manifest weight of the evidence.        Officer Fulmer clearly
testified that he witnessed appellant jump up and kick C.K. in the face. This caused
her to fall over and suffer injuries to her lip and face. Specifically, Officer Fulmer
stated that C.K. was bleeding from her face and she had a split lip. And C.K. testified
that the next morning she awoke feeling achy with blood on her lip. Even though
C.K. was unable to recall the incident due to her intoxication at the time, Officer
Fulmer’s testimony demonstrated that appellant recklessly caused serious physical
harm to C.K.     Moreover, C.K.’s testimony about her condition the next morning
corroborated Officer Fulmer’s testimony that appellant kicked her in the face and she
fell to the ground.
        {¶25} Furthermore, even if appellant was defending his property to some
extent during the altercation and trying to get C.K. to leave his house, this is not a
defense to kicking her in the face. When appellant kicked C.K., the two were outside
of appellant’s house. Thus, appellant cannot claim he was defending his property.
Appellant also claims he was defending himself. But Officer Fulmer testified that
appellant jumped up in the air and kicked C.K. in the face and appellant outright
denied that he kicked C.K. in the face. It was up to the jury to weigh the conflicting
testimony and to determine which witness was more credible. Rouse, 2005-Ohio-
6328, ¶ 49. The jury found Officer Fulmer to be the more credible witness. We will
not second-guess the jury’s credibility determination.
        {¶26} Based on the above, the jury did not lose its way and create a manifest
miscarriage of justice. In other words, the jury’s verdict was not against the manifest
weight of the evidence.
        {¶27} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
        {¶28} Appellant’s second assignment of error states:

              THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE
                                                                                -7-


       JURY ON THE AFFIRMATIVE DEFENSE OF “SELF-DEFENSE” AND
       “DEFENSE OF PROPERTY.”

       {¶29} In this assignment of error appellant asserts the trial court should have
given jury instructions on both self-defense and defense of property. He points out
that C.K. was so intoxicated she could not recall what happened that night. On the
other hand, he points to his own testimony that C.K. was damaging his property and
attacking him. Therefore, he claims, he had no duty to retreat.
       {¶30} In this case, the trial court did not give an instruction on self-defense or
on defense of property. But appellant did not object to the jury instructions or request
a self-defense or defense of property instruction. Therefore, our review is limited to
plain error.
       {¶31} Plain error is one in which but for the error, the outcome of the trial
would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804
(1978). To prevail on a claim governed by the plain error standard, an appellant must
demonstrate that the trial outcome would have been clearly different but for the
alleged error. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
       {¶32} Appellant asserts the court should have given an instruction on self-
defense where he was alleged to have used non-deadly force to defend himself.
       {¶33} The elements of the affirmative defense of self-defense where the
defendant is alleged to have used non-deadly force are: “(1) the defendant was not at
fault in creating the situation giving rise to the affray, and (2) the defendant (even if
mistaken) had a bona fide belief (which means a belief that was both objectively
reasonable and subjectively honest) that he was in imminent danger of any bodily
harm (whether it be deadly or non-deadly).” State v. Morris, 7th Dist. No. 03 MO 12,
2004-Ohio-6810, ¶ 22. Moreover, the defendant must prove the force he used in
defense was commensurate with the threatened danger before he can claim self-
defense in a non-deadly force case. Struthers v. Williams, 7th Dist. No. 07 MA 55,
2008-Ohio-6637, ¶ 17.
       {¶34} In this case, a self-defense instruction was not warranted. Appellant’s
                                                                                   -8-


conviction for domestic violence was based on Officer Fulmer’s testimony that he
witnessed appellant jump into the air and kick C.K. in the face causing injury to her
face and lip. At no time did appellant testify or even suggest that he jumped and
kicked C.K. in the face as a self-defense measure. In fact, appellant testified that he
did not kick C.K. in the head or face and that Officer Fulmer’s testimony was
mistaken.      Thus, even though appellant testified regarding the continuing affray
between him and C.K., at the point in time when the domestic violence for which he
was convicted occurred, there was no evidence that appellant was defending himself.
The jury had to make a choice between two options: either appellant jumped up and
kicked C.K. in the face causing injury to her or he did not. There was no evidence
that appellant may have kicked C.K. in the face in an effort to defend himself.
Therefore, the court did not commit plain error in failing to give a self-defense
instruction.
       {¶35} Appellant also asserts the court should have given an instruction on
defense of property. Defense of property is related to self-defense. State v. Perez,
7th Dist. No. 09 MA 30, 2010-Ohio-3168, ¶ 14. To prove the affirmative defense of
defense of property, the defendant must present evidence that he reasonably
believed his conduct was necessary to defend his property against the imminent use
of unlawful force, and the force he used in defense was not likely to cause death or
great bodily harm. State v. Moses, 10th Dist. No. 13AP-816, 2014-Ohio-1748, ¶ 41.
       {¶36} In this case, there was testimony that C.K. was throwing things in
appellant’s house and potentially damaging his personal property. But this occurred
when appellant and C.K. were inside appellant’s house. Appellant did not jump up
and kick C.K. until the two were outside. At that time, appellant could not have
believed his property was under an imminent threat of use of unlawful force. In other
words, when appellant kicked C.K. in the face, it was not because she was about to
damage his property. She was not even in his house. Thus, the trial court did not
commit plain error in failing to give a jury instruction on defense of property.
       {¶37} Accordingly, appellant’s second assignment of error is without merit and
                                                                                -9-


is overruled.
       {¶38} Appellant’s third assignment of error states:

                APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
       UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
       CONSTITUTION; SECTION 10, ARTICLE I, OHIO CONSTITUTION.

       {¶39} Here appellant argues his counsel was ineffective because counsel
agreed to the jury instructions that did not contain self-defense and defense-of-
property instructions. Appellant asserts this was not a matter of trial strategy but
instead was an oversight by counsel. He claims prejudice as a result of the lacking
jury instructions.
       {¶40} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id.     To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
       {¶41} Appellant bears the burden of proof on the issue of counsel's
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.
       {¶42} As discussed above, jury instructions on self-defense or defense of
property were not warranted in this case. Consequently, defense counsel could not
be ineffective for failing to request them.
       {¶43} Accordingly, appellant’s third assignment of error is without merit.
                                                                      - 10 -


      {¶44} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

Robb, J., concurs.
