[Cite as State v. Garrett, 2018-Ohio-1368.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.       28638

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RICHARD P. GARRETT                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR-2016-10-3710

                                  DECISION AND JOURNAL ENTRY

Dated: April 11, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Richard Garrett appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     Following an altercation with his former girlfriend’s boyfriend, Garrett was

indicted on two counts of felonious assault. The first count alleged that Garrett knowingly

caused serious physical harm to the victim and the second alleged that he knowingly caused or

attempted to cause physical harm to the victim by means of a deadly weapon. The matter

proceeded to a jury trial, at which Garrett raised the affirmative defense of self-defense. The jury

found Garrett not guilty of felonious assault as charged in count two of the indictment but guilty

with respect to felonious assault as charged in count one of the indictment. The trial court

sentenced Garret to three years in prison.

        {¶3}     Garrett has appealed, raising a single assignment of error for our review.
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                                                 II.

                                  ASSIGNMENT OF ERROR

       GARRETT’S FELONIOUS ASSAULT CONVICTION WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE, AND MUST BE REVERSED.

       {¶4}    Garrett argues in his sole assignment of error that his conviction for felonious

assault was against the manifest weight of the evidence. In so doing, he focuses on the fact that

the jury found him guilty of knowingly causing serious physical harm but not guilty of

knowingly causing or attempting to cause physical harm with a deadly weapon. However,

“[Garrett] has not separately argued that the trial court erred by accepting inconsistent jury

verdicts, so our consideration of this argument is limited to whether it bears on the weight of the

evidence. It does not.” State v. Phillips, 9th Dist. Summit No. 27552, 2017-Ohio-1186, ¶ 20.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 quoting Tibbs v. Florida,

457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as

against the manifest weight of the evidence only in exceptional cases. Otten at 340.

       {¶5}    Garrett was found guilty of violating R.C. 2903.11(A)(1). R.C. 2903.11(A)(1)

states that “[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.”

       A person acts knowingly, regardless of purpose, when the person is aware that the
       person’s conduct will probably cause a certain result or will probably be of a
                                                3


       certain nature. A person has knowledge of circumstances when the person is
       aware that such circumstances probably exist. When knowledge of the existence
       of a particular fact is an element of an offense, such knowledge is established if a
       person subjectively believes that there is a high probability of its existence and
       fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B).

       “Serious physical harm to persons” means any of the following:

       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

       {¶6}    At trial, Garrett asserted that he acted in self-defense. Garrett had the burden to

demonstrate by a preponderance of the evidence that he acted in self-defense. State v. Walker,

9th Dist. Summit No. 28244, 2017-Ohio-7236, ¶ 6. “In order to prove self-defense, a defendant

must demonstrate: (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.” (Internal quotations and citations omitted.) Id.

“The elements of self-defense are cumulative. * * * If the defendant fails to prove any one of

these elements by a preponderance of the evidence he has failed to demonstrate that he acted in

self-defense.” Id. “[I]n general, one may use such force as the circumstances require to protect
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oneself against such danger as one has good reason to apprehend.” (Internal quotations and

citations omitted.) State v. Hamrick, 9th Dist. Lorain No. 09CA009628, 2010-Ohio-3796, ¶ 13.

       {¶7}    Garrett and the victim’s girlfriend are the biological parents of a daughter, R.C.

On October 26, 2016, the victim and his girlfriend drove to Garrett’s mother’s house, where

Garrett was living, to pick up R.C. The victim was driving and his girlfriend was a passenger.

The victim was aware that Garrett did not want the victim at Garrett’s mother’s house. The

victim parked the vehicle on the street near Garrett’s mother’s house and the victim’s girlfriend

went to get R.C. At the time, Garrett was not home. However, Garrett arrived home while the

victim’s girlfriend was still at the house. At trial, the State and Garrett presented evidence

supporting conflicting narratives with respect to the events that followed.

       {¶8}    According to the victim’s girlfriend, as she was walking back to the car, Garrett

asked to say goodbye to R.C. The victim testified that his girlfriend was at the car at that time

and had the car door open. Garrett picked up R.C. and began to ask the victim’s girlfriend about

her previously being late picking up R.C. and questioning the victim’s involvement in parenting

related issues. The victim’s girlfriend indicated that she did not want to talk to Garrett about

that, particularly in front of R.C. Garrett refused to give R.C. to the victim’s girlfriend and was

insistent about wanting to address “that situation.” The victim’s girlfriend described Garrett as

aggressive and angry.

       {¶9}    At that point, the victim got out of the car and began to explain to Garrett that the

victim had previously apologized about being late and reiterated why they had been late. The

victim’s girlfriend indicated that the victim was not “upset or anything.” According to the

victim, Garrett then set R.C. down and began attacking the victim. The victim’s girlfriend was

surprised by the assault. The victim thought that Garrett was punching him but came to realize
                                                  5


that Garrett had a knife. The victim turned and ran but fell twice and then Garrett was on top of

him and continued to stab the victim. The victim was able to get up and began to run away but

Garrett pursued him. Ultimately, the victim outran Garrett and the victim’s girlfriend picked up

the victim, called 911, and drove the victim to the hospital. The victim’s girlfriend’s 911 call

was played for the jury.

       {¶10} At the hospital, the victim was treated for six stab wounds and testified to being in

significant pain. The wounds were sutured and the victim was released the same day. The

victim explained he had difficulty using his left arm for at least a month after the assault and

detailed several scars that resulted from the injuries.

       {¶11} Garrett presented a different version of events in his defense. Both he and his

mother testified. According to Garrett, on that day, he arrived home and pulled in the driveway.

He observed his mother and niece in the doorway and saw the victim’s girlfriend coming out of

the house with R.C. Garret also noticed the victim was in the car which was parked in front of

his mother’s house. Garrett’s mother and Garrett had relayed to the victim in the past that he

was not welcome at or around the house.

       {¶12} Garret went over to tell R.C. goodbye and to try to talk to the victim’s girlfriend

about the “situation” but she refused and grabbed R.C. back. Garrett was insistent that they

needed to talk but the victim’s girlfriend did not want to do so. At that point, the victim got out

of the car and proceeded to walk towards Garrett and the victim’s girlfriend. Garrett maintained

that the argument occurred in his mother’s yard, not near the car as the victim claimed. Garrett’s

mother testified that she could not hear what was being said, but did hear the victim “more or

less” yelling and making arm gestures. According to Garrett, the victim became “amped” and

then Garrett was yelling. The victim threw the first punch and then the two began fighting.
                                                6


Garrett’s mother saw Garrett hit the ground and then the victim was on top of Garrett punching

him. According to Garrett, they were on the ground before Garrett pulled out his knife and

began using it. Before he did so, Garrett testified that the victim “had the best of [him], to be

honest, and [his] daughter was crying, [his] mom yelling * * * and the only thing [he could]

think about, [was he could not] let this man beat [him] like this in front of [his] daughter[.]”

Garrett indicated that the victim was “getting the best of [him]” but was not “beating the dog out

of [him.]” Garrett acknowledged that, given their proximity to each other, Garrett was likely to

cut the victim as Garrett was swinging the knife at the victim. Once the victim realized that he

was being stabbed, the victim got up. Garrett also got up and his mother observed Garrett

swinging his arms at the victim and then saw the victim run away. Garrett stood and watched the

victim go. Garrett and his mother denied that Garrett pursued the victim. Garrett’s mother noted

that the victim fell twice as he was running away. As the victim was running away, Garrett’s

mother noticed that Garrett had a knife in his hand. Garrett’s mother never saw the victim with a

weapon. Garrett’s only injuries were scratches, and he averred that the main thing that was hurt

was his pride.

       {¶13} Garrett also called 911 to report the stabbing and waited for police to arrive.

When the police arrived, he showed the officers where the knife was, which was on the porch of

his sister’s house, and provided a statement. He told one of the officers that there had been an

altercation and he had stabbed someone. Garrett was not immediately arrested, but was placed in

a police car. The police did not observe any injuries on Garrett. Garrett’s mother did not come

outside and speak to the police when they came, in part because she was concerned about a

warrant that she thought may have been issued against her; Garrett’s mother acknowledged that

she had four prior convictions for theft.
                                                 7


       {¶14} Two officers proceeded to the hospital and took statements from the victim and

his girlfriend. The victim’s girlfriend told police that she and the victim went to the house to

pick up R.C. and that Garrett wanted to have a conversation with the victim’s girlfriend. The

victim’s girlfriend indicated that she did not want to do so in front of the child. Garrett put the

child down and they started arguing. Then the victim got out of the car, Garrett got in the

victim’s face and started to punch and stab the victim. The victim got away and his girlfriend

picked him up and took him to the hospital.            After gathering and considering all of the

statements, the decision was made to arrest Garrett.

       {¶15} After a thorough and independent review of the record, we cannot say that the

jury lost its way in finding Garrett guilty of felonious assault in violation of R.C. 2903.11(A)(1).

While the jury was presented with conflicting evidence, “[w]e remain mindful that the jury had

an opportunity to view the witnesses and was in the best position to assess the credibility of the

evidence presented by the parties at trial.” (Internal quotations and citations omitted.) State v.

Renaud, 9th Dist. Summit No. 28439, 2017-Ohio-8218, ¶ 32. Moreover, “[t]his Court will not

overturn the [] verdict[s] on a manifest weight of the evidence challenge simply because the jury

chose to believe certain witnesses’ testimony.” (Internal quotations and citations omitted.) Id.

       {¶16} There was evidence presented that Garrett struck the victim first and proceeded to

stab him six times. The altercation continued even after the victim tried to flee. The victim’s

wounds required stitches and left scars. If the jury believed the victim’s and the victim’s

girlfriend’s version of events, the jury was not unreasonable in finding Garrett guilty of violating

R.C. 2903.11(A)(1) and in rejecting his affirmative defense of self-defense. Even if the jury

believed some of Garrett’s testimony, the jury could have reasonably found that Garrett failed to

establish he acted in self-defense. For example, in light of Garrett’s testimony that “the only
                                                 8


thing [he could] think about[ was he could not] let this man beat [him] like this in front of [his]

daughter,” the jury could have found that Garrett failed to demonstrate that he “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[.]” Walker, 2017-Ohio-7236, at ¶ 6. As the elements of proving

self-defense are cumulative, the failure to establish any one is fatal to proving the affirmative

defense. Id. Accordingly, after a careful review of the record, we can only conclude that the

jury did not lose its way and create a manifest miscarriage of justice in finding Garrett guilty of

violating R.C. 2903.11(A)(1). See Otten, 33 Ohio App.3d at 340.

       {¶17} Garrett’s sole assignment of error is overruled.

                                                III.

       {¶18} Garrett’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JACLYN PALUMBO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
