[Cite as Berea v. McElroy, 2013-Ohio-1188.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98642




                                     CITY OF BEREA
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 GILBERT McELROY
                                                      DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                                      Criminal Appeal from the
                                       Berea Municipal Court
                                      Case No. 11 CRB 00964

        BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEYS FOR APPELLANT

Megan M. Patituce
Joseph C. Patituce
Jennifer Scott
Patituce & Scott, L.L.C.
26777 Lorain Road
Suite 708
North Olmsted, Ohio 44070


ATTORNEY FOR APPELLEE

James N. Walters, III
Director of Law
City of Berea
31 East Bridge Street
Suite 302
P.O. Box 297
Berea, Ohio 44017
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Gilbert McElroy, appeals his conviction for assault in

the Berea Municipal Court.       Finding no merit to the appeal, we affirm appellant’s

conviction.

       {¶2} On August 4, 2011, appellant was charged with one count of assault, in

violation of R.C. 2903.13, a misdemeanor of the first degree. A bench trial was held on

March 6, 2012.

       {¶3} At trial, Edward Schaefer testified that after parking his vehicle at Chase

Bank, he and appellant began to argue when appellant made a disparaging comment about

Schaefer parking in a handicap space, albeit legally. Schaefer testified that he walked

away from the argument and headed towards the Chase Bank ATM. Appellant went into

a Radio Shack located next to the bank. However, shortly after, appellant came back

outside and continued his “tirade against [Schaefer].” Ultimately, the distance between

the men “closed,” and appellant head-butted Schaefer. At that time, Schaefer called 911

and waited for the police to arrive.

       {¶4} Clyde Taylor testified that he and his wife, Ruth Taylor, were approaching

the Chase Bank building when they observed two men arguing back and forth. Mr.

Taylor testified that he was approximately 35 feet away and did not observe the entire

incident. However, he testified that he witnessed appellant head-butt Schaefer, stating,

“[Schaefer] seemed like he was backing off a little bit, and then the next thing I know,
[appellant] moved in and head-butted him.” Mrs. Taylor corroborated Mr. Taylor’s

testimony, stating, “I saw that they were arguing when we were driving up, and I told my

husband, ‘Oh my god. I think they’re going to start fighting.’ And then I saw when

[appellant] head-butted [Schaefer].”

       {¶5} Chad Smith testified that he was working at Radio Shack on August 1, 2011.

Smith testified that he observed appellant and Schaefer exchanging words during a heated

discussion in the parking lot outside the store. Thereafter, appellant entered the Radio

Shack and purchased a battery. Smith described appellant as being “frazzled.” Smith did

not observe any altercation after appellant purchased the battery, but testified that

appellant later returned to the store and asked to use the phone, stating that he was forced

to defend himself against Schaefer.

       {¶6}    Appellant testified that he was walking toward a Radio Shack with his

ten-year-old daughter when Schaefer suddenly came up to him and started yelling.

Appellant stated that he attempted to walk away from the situation but that Schaefer

continued to follow him and threatened to “shoot his ass.” Appellant testified that he took

Schaefer’s threats seriously and was afraid for the safety of his young daughter. He

testified that Schaefer threatened him, raised his hand, and lunged at him, and it was at

that time they “slammed heads.” Appellant maintained that he did not intend to have any

physical contact with Schaefer.
       {¶7} At the close of testimony, the court found appellant guilty as charged. On

June 6, 2012, appellant was sentenced to a fine of $100 plus court costs and one year of

active probation.

       {¶8} Appellant now brings this timely appeal, raising three assignments of error

for review.

                                     Law and Analysis

                            I. Ineffective Assistance of Counsel

       {¶9} In his first assignment of error, appellant argues that he received ineffective

assistance of counsel. To establish ineffective assistance of counsel, a defendant must

show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that

but for counsel’s errors, the proceeding’s result would have been different. Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. There is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance, and that strategy and tactical decisions

exercised by defense counsel are well within the range of professionally reasonable

judgment. Strickland at 699.

       {¶10} Initially, appellant argues that counsel was ineffective for failing to move

for the separation of witnesses. Although it is good practice to move for separation of

witnesses, we are unwilling to conclude that counsel is deficient, per se, by failing to do
so. Cleveland v. Hopkins, 8th Dist. Nos. 97600 and 97601, 2012-Ohio-5170; State v.

Farris, 2d Dist. No. 2003 CA 77, 2004-Ohio-5980. Here, appellant has failed to present

any evidence that the outcome of the trial would have been different if the witnesses were

separated. There was no indication that the witnesses gave untrustworthy testimony.

Further, we are unable to discern from the record whether the prosecution’s witnesses

altered their testimony due to their ability to hear prior witnesses. Thus, appellant has

failed to establish that he was prejudiced by counsel’s decision not to separate witnesses.

       {¶11} Appellant further contends that his trial counsel was ineffective for failing to

argue that he acted in self-defense. However, contrary to appellant’s claim, the record

reflects that trial counsel argued during the bench trial below that appellant was not the

aggressor in this matter and that any force used against Schaefer was made in

self-defense. Specifically, trial counsel elicited testimony from appellant during direct

examination that appellant felt threatened by Schaefer’s conduct and believed that

Schaefer was going to use physical force against him and/or his child.

       {¶12} Nevertheless, even if appellant’s trial counsel had not raised these

arguments, his counsel would not have been ineffective because the record did not

support the affirmative defense of self-defense. See State v. Shepherd, 8th Dist. No.

97962, 2012-Ohio-5415; State v. Cozart, 8th Dist. No. 91226, 2009-Ohio-489.

       To establish self-defense for the use of less than deadly force in defense of
       one’s person, the defendant must prove: (1) he was not at fault in creating
       the situation which gave rise to the event in which the use of non-deadly
       force occurred; (2) he had honest and reasonable grounds to believe that
       such conduct was necessary to defend himself against the imminent use of
       unlawful force; and (3) the force used was not likely to cause death or great
       bodily harm.

State v. Tanner, 9th Dist. No. 3258-M, 2002-Ohio-2662, ¶ 23. In the instant case,

insufficient evidence exists to support each of the required three elements of self-defense

because the testimony presented at trial supports the prosecution’s position that appellant

was at fault in creating the situation giving rise to the affray.

       {¶13} Accordingly, appellant’s ineffective assistance of counsel claims are without

merit. Appellant’s first assignment of error is overruled.

                    II. Manifest Weight and Sufficiency of the Evidence

       {¶14} In his second and third assignments of error, appellant challenges his

conviction as being both against the manifest weight of the evidence and not supported by

sufficient evidence.

       {¶15}     The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
       {¶16} “A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.”        State v. Ponce, 8th Dist. No. 91329,

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). The manifest weight of the evidence standard of review requires us to 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, 515

N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary power to

grant a new trial should be exercised only in exceptional cases where the evidence weighs

heavily against the conviction. Thompkins, supra.

       {¶17} We are mindful that the weight to be given the evidence and the credibility

of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has

the authority to “believe or disbelieve any witness or accept part of what a witness says

and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

       {¶18} In the case at hand, appellant was charged with assault, in violation of R.C.

2903.13(A), which states: “[n]o person shall knowingly cause or attempt to cause physical
harm to another or another’s unborn.” Thus, the prosecution was required to prove,

beyond a reasonable doubt, that appellant knowingly caused or attempted to cause

physical harm to Schaefer.

       {¶19} Here, the evidence adduced at trial demonstrated that Schaefer and appellant

began to argue in the parking lot of a shopping plaza after appellant made an

inappropriate comment about Schaefer parking in a handicap space. Schaefer testified

that when the argument escalated, appellant “came up to me, closed the distance, and

before I knew what was happening, he head-butted me in the face.”                 Schaefer’s

testimony was corroborated by Clyde and Ruth Taylor, who testified that they witnessed

appellant and Schaefer engaged in a heated argument when appellant suddenly

head-butted Schaefer.     From this evidence, a reasonable factfinder could find that

appellant knowingly caused Schaefer physical harm. Accordingly, we find that the state

presented sufficient evidence to sustain appellant’s assault conviction.

       {¶20} Moreover, we are unable to conclude that this is the exceptional case in

which the evidence weighs heavily against appellant’s conviction. The trial court, as the

trier of fact, was in the best position to weigh the credibility of the witnesses and was free

to find the testimony of Schaefer and the corroborating witnesses to be more credible than

appellant’s testimony. Deferring to the trial court’s assessment of the credibility of the

witnesses, as we must, we cannot say that the trier of fact lost its way and performed a

miscarriage of justice in convicting appellant of assault.
       {¶21} Accordingly, appellant’s second and third assignments of error are

overruled.

       {¶22} Judgment affirmed.

       It is ordered that appellee recover from 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 Berea

Municipal 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
