[Cite as State v. Kramer, 2009-Ohio-5769.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASENO. 4-09-12

        v.

ROBERT R. KRAMER, JR.,                                    OPINION

        DEFENDANT-APPELLANT.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 08-CR-10266

                                      Judgment Affirmed

                          Date of Decision:    November 2, 2009




APPEARANCES:

        Clayton J. Crates for Appellant

        Russell R. Herman for Appellee
Case No. 4-09-12


ROGERS, J.

       {¶1} Defendant-Appellant, Robert Ray Kramer, Jr., appeals the judgment

of the Court of Common Pleas of Defiance County finding him guilty of

aggravated assault and sentencing him to a seventeen-month prison term. On

appeal, Kramer argues that the trial court committed plain error by not instructing

the jury on the defense of others; that he was rendered ineffective assistance of

counsel due to trial counsel’s failure to request a jury instruction on the defense of

others; and, that the jury verdict was against the manifest weight of the evidence.

Based on the following, we affirm the judgment of the trial court.

       {¶2} In July 2008, the Defiance County Grand Jury indicted Kramer on

one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the

second degree, and one count of aggravated assault in violation of R.C.

2903.12(A)(2), a felony of the fourth degree.       The indictment arose from an

incident during which Kramer struck Miguel Hernandez with a broken beer bottle

during an altercation outside of a bar, severing his jugular vein and causing him to

sustain serious injuries. Subsequently, Kramer entered a not guilty plea to both

counts in the indictment.

       {¶3} In February 2009, the case proceeded to a jury trial, at which the

following testimony was heard. Patrolman Drew Waltmire of the Defiance Police

Department testified that he responded to a residence on February 24, 2008, in



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response to a call that a man was bleeding profusely from his neck; that Patrolman

Hendon and Lieutenant Martinez also responded to the residence; that, upon his

arrival, he observed Miguel Hernandez holding a blood-soaked towel on his neck,

with his shirt covered in blood; that Miguel stated he had been stabbed by a man

named Bobby during a fight at Sinner’s Bar; that, after Miguel was transported to

the hospital, he spoke with him again regarding the incident, and Miguel told him

that he was at Sinner’s Bar and saw his ex-girlfriend, April Crawford, with Bobby;

that Miguel continued that he and Bobby got into an altercation in the bar and he

left, that Bobby and two other men followed him out of the bar, that he felt

threatened so he put his keys in between his fingers for protection, and that he was

hit in the head; that Miguel was then “life-flighted” to another hospital (trial tr.,

vol. 1, p. 172); and, that he searched Miguel’s clothes after he changed at the

hospital and found keys, but not a knife.

       {¶4} Officer Rueben Hendon of the Gahanna Police Department testified

that he was employed by the Defiance Police Department on February 24, 2008;

that, on that evening, he responded to an emergency call at a residence with

Patrolman Waltmire and Lieutenant Martinez; that, when he arrived at the

residence, he observed Miguel on the porch bleeding profusely, with a towel

pressed to his neck; that, after gathering information about the incident, he went to

the area around Sinner’s Bar; that, upon his arrival, he found a broken beer bottle



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and blood on the ground; that, after collecting the evidence and taking it back to

the station, he went to Kramer’s residence; that, when he arrived at the residence,

Kramer came to the door and stated that he knew they were going to come and

speak with him; that he also stated that Miguel lunged at him with a knife, so he

swung a beer bottle and hit Miguel to protect himself; and, that Kramer admitted

he had been drinking, but was cooperative with him in going to the police station.

        {¶5} Sergeant Steve Waldron of the Defiance Police Department testified

that, while working on February 24, 2008, Lieutenant Martinez instructed him to

go to Sinner’s Bar in regards to a stabbing that had occurred there; that, upon

responding to Sinner’s, he spoke to Bill Reeves, an employee of the bar, who

stated that there had been a fight outside the bar that evening; that Lieutenant

Martinez then arrived, and they both viewed the video tape recording from the

bar’s security camera; that Lieutenant Martinez recognized Kramer on the video

tape due to an earlier incident that evening at Spanky’s Bar; that, later that

evening, Lieutenant Martinez told him to go pick up Kramer; that, upon arriving at

the residence, Kramer answered the door and stated that he knew the police were

coming; that Kramer agreed to go with him to the police station; and, that, as he

was escorting Kramer to the car, Kramer said, “he was coming at me with a knife,

I was just protecting myself, you know, what did you expect me to do[.]” (Id. at

219).



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       {¶6} Patrolman Steven Delaney of the Defiance Police Department

testified that he, Sergeant Waldron, and Patrolman Hendon collected evidence in

the vicinity of Sinner’s Bar; that he followed a blood trail from the residence at

which Miguel was discovered down to other streets; that he also went to the

vicinity of Sinner’s Bar the following morning to look for a knife; that, on the

evening of the stabbing and the following morning, he did not find a knife; and,

that he did not look for a knife on the rooftops of several buildings in the area, in

the residence where Miguel was located, or in several storm drains along the path

that Miguel walked from the scene of the stabbing to the residence.

       {¶7} Lieutenant Lee Martinez of the Defiance Police Department testified

on direct examination that, on the evening of February 24, 2008, he was

dispatched to a residence in regards to a man bleeding from his neck; that, when

he arrived at the residence, he observed Juan Urbina and Miguel, who was

bleeding profusely from his neck; that, after Miguel was taken to the hospital, he

went to Sinner’s Bar, as that is where Miguel indicated he was involved in the

altercation; that, while at Sinner’s, he viewed video from the bar’s security

cameras; that he recognized Kramer on the video as the man he encountered

earlier that evening at Spanky’s Bar, where it was alleged that Kramer spit beer on

his ex-girlfriend; that, on the video, it showed a verbal altercation between Miguel

and Kramer, with Miguel being escorted out the door and Kramer and several



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other individuals leaving shortly thereafter; that he then went to Kramer’s aunt and

uncle’s residence to speak with potential witnesses; that, at the residence, he

located Patricia and David Bernard, Kramer’s aunt and uncle, and Tracey

McCowan, Kramer’s sister; that these three individuals came to the police station

for further questioning regarding the incident; that during the interviews, these

individuals indicated that there were others involved with Kramer in his

altercation with Miguel, but they did not know their names; and, that based upon

these interviews, they learned of Kramer’s location.

       {¶8} On cross-examination, Lieutenant Martinez testified that, according

to the time on the video, Miguel walked into Sinner’s Bar at 2:09 a.m.; that Miguel

came into the bar and immediately sat next to his ex-girlfriend, April Crawford;

and, that Miguel did not order a drink when he first walked in.

       {¶9} Detective John Williamson of the Defiance Police Department

testified that he was called to investigate a stabbing incident in the early morning

hours of February 24, 2008; that, as part of his investigation, he interviewed

Kramer; that Kramer admitted being in an altercation with Miguel outside of

Sinner’s Bar; that Kramer also told him that he approached Miguel outside due to

an altercation they had inside the bar, exchanged words with him, broke a bottle

on Miguel’s neck, and immediately left when Miguel started bleeding; that he

initially told him only he and Crawford were present during the altercation; that



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Kramer stated he first had an exchange with Miguel at a UAW hall that night,

where he and Crawford went to watch a boxing match; that he continued that he

and Crawford left out of a back door of the building after a verbal altercation with

Miguel at the event, Miguel went out a different door, there was a confrontation

outside, and Miguel threw a bottle at him; that Kramer further stated that he did

not encounter Miguel again until he and Crawford were at Sinner’s Bar, where

Miguel came into the bar and sat next to Crawford, words were exchanged

between himself and Miguel, to the effect that she did not want anything to do

with him, and employees then escorted Miguel out of the bar; that Kramer then

admitted that other individuals were present with him on that evening, but he did

not want to give their names “because of potential problems that they could have

or would have” (Id. at 288); that he was able to later discover the identities of

these individuals through his investigation; that Kramer initially stated that Miguel

swung at him with something in his hand during the altercation outside of Sinner’s

Bar, but that he did not know exactly what it was; that, however, Kramer later

stated Miguel had a knife in his hand; and, that Kramer also denied breaking the

bottle before striking Miguel with it.

       {¶10} Reaud Hernandez, Miguel’s brother, testified that he attended a

boxing match with Miguel at the UAW Hall; that, while they were at the match, he

saw Crawford and Kramer; that Kramer looked at Miguel on more than one



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occasion and smiled at him; that Kramer also called out Miguel’s name and

laughed at him; that Miguel never said anything to Kramer; that he left the boxing

match, but Miguel stayed; that, the next time he had contact with Miguel, he was

in the hospital; and, that he had previously seen Miguel under the influence of

marijuana.

       {¶11} Miguel testified on direct examination that Crawford was his ex-

girlfriend; that she broke up with him in February 2008 and began dating Kramer;

that he attended boxing matches at the UAW hall on February 23, 2008; that,

while at the matches, he saw Kramer, who initially approached him and tried to

shake his hand; that he did not want to shake Kramer’s hand because he was

taunting him; that Kramer then walked “by a couple more times smiling * * * and

grinning” (trial tr., vol. 2, p. 336); that he then saw Crawford walk in and sit next

to Kramer; that, when he left the matches, he did not have an altercation with

Kramer or Crawford; that he then went to Papa Primo’s Bar, where he became

upset about seeing Crawford and Kramer; that he consumed around ten or twelve

beers throughout the course of the evening; that, while at Papa Primo’s, he sent

several text messages to Crawford that were “a lot of BS, * * * it was probably

threatening to them * * *, but * * * [he] was just blowing a lot of wind” (Id. at

347); that he subsequently left Papa Primo’s to go have another drink at Sinner’s

Bar; that, when he walked into the bar, Crawford and Kramer were sitting right at



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the bar in front of him; that he approached Crawford “to hear some closure * * *,

to hear the truth” (Id. at 350); that, when he attempted to talk to Crawford, she

ignored him and walked away; that Kramer then approached him and told him to

leave Crawford alone, and they subsequently had a heated argument; that the

bartender broke up the argument, and he then left; and, that, as he was walking

away from the bar, Kramer, a couple of his friends, and Crawford walked out of

the back door of the bar and started heckling him, calling him a “sissy”, a “fag”,

and a “spic.” (Id. at 355).

       {¶12} Miguel continued that he then turned around, exchanged words with

Kramer and his two friends, and challenged Kramer to fight him; that Kramer

stated he would also have to fight his two friends; that Kramer and the other two

men began to encircle him; that he was afraid, so he took his keys out of his

pocket and put them between his knuckles in order to defend himself; that he

might have swung his fist containing the keys prior to anyone else attempting to

strike him, as he was trying to “get them off of [him] [and]was trying to leave” (Id.

at 418); that Kramer then grabbed a bottle of beer out of the six-pack that was in

his hands, broke it on the ground, and started coming towards him; that he tried to

run, but the other two men continued to push him towards Kramer, attempting to

punch and kick him; that he began to swing his arms to block the punches and

kicks; that he then tried to grab the bottle from Kramer, and Kramer stabbed him



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in the neck with it; that Kramer and the two other men then left, and he went to his

friend’s house to get help; that, while at the hospital, marijuana and cocaine were

found in his system; and, that he has two convictions for domestic violence from

1994 and 1996.

      {¶13} On cross examination, Miguel testified that some of the text message

he sent to Crawford stated, “If fag boy is listening, fuck you. At Primo’s waiting

for you, fag”; “Fuck you, Bobby. You’ll get * * * yours, bitch”; “I really hope

you had fun fucking with my head ‘cause it’s my turn. Tell fag boy I’m waiting”;

“Or will I have to look for him? I will * * *”; “* * * I will pay you and fag boy

back. I promise you that before I die it will happen”; “A day of reckoning is

before you”; “Don’t let me catch you and fag boy together. I will fuck your lives

up”; “Fuck you boy, I will get you”; and, “Call me or I will go to your house * *

*” (Id. at 383-387); that, even though he encountered Kramer at Sinner’s Bar, he

did not know he was going to be there; that he did not order a drink when he

walked into the bar; that, as he was being taunted while walking away from

Sinner’s Bar, he turned around and headed back towards Kramer and his friends,

as he thought there was going to be a fist fight between him and Kramer; that he

did not have a knife with him during the altercation, and that he never carries a

knife with him; that, when he pulled out his keys and put them between his

fingers, he heard people say that he had a knife, to which he responded, “shit,



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right” (Id. at 409); that, when he started to throw punches with the keys in his fist,

one of the other men had already thrown punches at his head; that he tried to throw

a punch at Kramer with the keys in his fist after Kramer broke the beer bottle, but

before he stabbed him with it; and, that he lied to the medical personnel at the

hospital and told them that he had not ingested any illegal drugs.

       {¶14} Jared Sorg testified that he was working as a bartender at Primo’s

Bar on February 23, 2008; that Miguel came into the bar that evening and was

very upset; that Miguel was intoxicated when he entered the bar; that Miguel

continued to order drinks and was rude to another bartender; that he was going to

stop serving Miguel and ask him to leave, but he left before he had the

opportunity; and, that he is Kramer’s friend.

       {¶15} Crawford testified that she dated Miguel intermittently for two years;

that they lived together for about one year; that Miguel previously told her that he

was addicted to cocaine; that, one evening after she and Miguel broke up, Kramer

contacted her about going to some boxing matches; that she met Kramer at the

boxing event, and, while there, she noticed Miguel was also present; that, during

the event, she and Kramer went outside to smoke a cigarette; that, while outside,

Miguel also came out to smoke; that she and Miguel spoke to each other and were

friendly; that, after going back inside and watching the event, she and Kramer

proceeded to leave, when Miguel began yelling at them; that Miguel went outside



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and called for them to come out; that they decided to go out the back door of the

building, through the kitchen; that, as they went out the back door, she heard a

loud noise like something hit the dumpster or the top of the car, and Miguel was

standing there and began arguing with them; that Miguel was yelling, “how long

has this been going on” (Id. at 479); that they then left and went to Spanky’s Bar;

that, while at Spanky’s, something happened but she did not see it because she was

in the bathroom; that she and Kramer then went to Sinner’s Bar; that, while at

Sinner’s, she noticed Miguel called her, but she did not notice any text messages;

that she did not respond to Miguel’s phone calls; that, shortly thereafter, while she

was sitting at the bar, she turned around and saw Miguel next to her; that he stated

he wanted to speak with her, but she and Kramer asked him to leave, he refused to

do so, and an argument ensued; that a bar employee then instructed that they or

Miguel leave; that Miguel left out of the front door, she purchased a six pack of

beer, and she and Kramer began to exit out of the back door; that, shortly after she

walked out the back door, she heard someone say that Miguel was outside, and

Kramer told her to go back inside; and, that she went back inside the bar and did

not see anything that occurred thereafter.

       {¶16} On cross-examination, Crawford testified that she still talks

occasionally with Kramer, but they are not dating; that there was an altercation

between Kramer and his ex-girlfriend at Spanky’s Bar, but she did not see what



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happened because she was in the bathroom; that, apparently, Kramer spit on his

ex-girlfriend, or she spit on him; that, at some point during the evening, some of

Kramer’s friends joined her and Kramer, including Craig, Mike, and J.R. Begley;

that she could not remember how much Kramer drank that evening; that she was

not sure if Craig and Mike also walked out of Sinner’s Bar at the same time she

and Kramer were leaving; that, after the altercation between Kramer and Miguel,

Kramer’s aunt, Patricia, came into Sinner’s to get her; that Patricia had not been

with them that evening; that she then went to Kramer’s stepsister’s mother’s

house; that Kramer also arrived at the residence around the same time she did, but

he did not ride with her in the car, and she did not know how he got to the

residence; that, after the police came to the residence to pick up Kramer, she went

to the police station for questioning; that, until she arrived at the police station, she

was not aware of the incident between Miguel and Kramer; and, that she did not

see any of the text messages that Miguel sent her until several hours after she left

Sinner’s Bar.

       {¶17} Craig Pratt testified on direct examination that he and Kramer are

close friends; that he joined Kramer at Spanky’s Bar on February 23, 2008; that he

did not see Kramer get into an altercation with an ex-girlfriend while at Spanky’s;

that they then went to Sinner’s Bar about an hour and a half later; that another

friend, Mike Strong, was also at Sinner’s; that, at some point, he and Mike walked



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outside, and he saw “[Kramer] in front of [Miguel] and [Miguel] had a knife and

was yelling and cussing at [Kramer] and waving the knife at him” (Id. at 507); that

Kramer told Miguel to put the knife down and go home; that he and Mike got on

each side of Miguel, and Miguel started swinging the knife at them; that he did not

want to turn his back to Miguel because he was scared, as Miguel “was acting

crazy” (Id. at 516); that, at some point, he heard a bottle break and Miguel started

bleeding; that Kramer had a full beer bottle in his hand when they went outside of

the bar, and Kramer did not break the bottle while outside; and, that he did not see

how the bottle broke, but Kramer stated, as they were leaving, that he hit Miguel

with the bottle.

         {¶18} On cross-examination, Pratt testified that he has several felony

convictions, including a conviction for unlawful sexual conduct with a minor; that

he had several drinks that evening even though he was not permitted to consume

alcohol as a condition of his parole; and, that he told Detective Williamson that

there were certain things he could not remember about the incident because he was

drunk.

         {¶19} Mike Strong testified on direct examination that he was with

Kramer, Crawford, and Kramer’s sister at the boxing event; that he did not see any

problems during the event; that, as he was leaving, Kramer called him and told

him that “there was some guy messing with him, and he threw a beer bottle at him,



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and he just wanted me to make sure that I was outside just in case anything went

down, so I was there to see it” (Id. at 530); that Kramer never told him “who was

messing with him” (Id. at 531); that, when he left the event, he went with Kramer

to Spanky’s Bar; that he believes one of Kramer’s ex-girlfriends arrived at

Spanky’s, but he did not see her; that they then left Spanky’s and went to Sinner’s

Bar; that he was not permitted to be in a bar at that time as a condition of his

probation for negligent vehicular homicide; that, at some point, they left Sinner’s;

that he does not know exactly why they decided to leave the bar, but it was close

to closing time; that he did not see Kramer get into an altercation with Miguel

inside of Sinner’s; that, as he and Pratt walked outside the bar, he saw Kramer

down the street standing face to face with Miguel with his hands up; that, as he

walked down the street to make sure Kramer was okay, he saw Miguel holding a

knife in his hands; that Kramer told him to watch out because Miguel had a knife,

and Miguel swung at Kramer with the knife; that Miguel also swung the knife at

him and Pratt; that he could not remember what Miguel said as he was swinging

the knife, but Kramer told him to put the knife down and go home; that, at some

point, he fell down, and when he stood up, Miguel was holding his neck and

saying that he was going home; that he did not see Miguel bleeding or hear glass

break; that he did not hear Kramer break a bottle near the entrance of Sinner’s Bar;




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and, that he was “one hundred percent positive” that Miguel had a knife and not

keys. (Id. at 542).

       {¶20} On cross-examination, Strong testified that he is friends with Kramer

and that he has been dating Kramer’s sister for a year and a half; that he did not

see anything in Kramer’s hands during the altercation with Miguel except a beer

bottle; that he, Kramer, and Pratt did not surround Miguel outside of Sinner’s Bar,

but were standing in front of him; that he did not feel comfortable turning his back

on Miguel and walking away because Miguel had a knife; and, that he told Kramer

that he had an opportunity to get away from Miguel, and that, as he understood the

law, this would not be a case of self-defense.

       {¶21} Kramer testified on direct examination that he attended the boxing

event in February 2008 with ten or twelve of his family members; that he invited

Crawford to attend the event, but they were not dating at the time; that, before

Crawford arrived, he saw Miguel and said hello to him, as he knew him from

previously working together; that, during the event, he and Crawford went outside

to smoke, and Miguel came outside and stared at them; that, during the boxing

matches, he had three beers; that, at the end of the event, as he and Crawford were

leaving, they walked by Miguel in order to get to the exit, and Crawford stopped

and said hello to Miguel’s brother, at which time Miguel stated to him, “you’re

going to fucking get yours,” and went to the exit (trial tr., vol. 3, p. 571); that he



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then decided to go out the back door of the building to avoid Miguel; that, as he

and Crawford walked out of the back door, Miguel came running around the

corner and threw something at him, which missed and hit a van behind him; that

he told Miguel he needed to go home, and Miguel walked away; that he then

proceeded to Spanky’s Bar to meet his family and friends; that, while at Spanky’s,

he drank a beer and also had an altercation with his ex-girlfriend; that she shoved

him, he spit beer on her, the police were called, and he was asked to leave; that, he

then went to Sinner’s Bar with Crawford and his friends and family; and, that,

while at Sinner’s, he drank more beer and also drank tequila.

       {¶22} Kramer continued that, around 2:00 a.m., he saw Miguel come into

the bar; that he told Crawford, “[Miguel] just walked in, grab your stuff, lets go”

(Id. at 587); that Miguel then started asking Crawford why she was with him, and

when she did not reply, Miguel stated, “I’m fucking talking to you” (Id. at 587);

that he then told Miguel that she did not want to talk to him and that he needed to

calm down; that Miguel then stated, “Fuck you, you ain’t got nothing to do with

this; * * * shut the fuck up” (Id. at 587-588); that he then told Miguel to “get the

fuck away, she’s going home with me tonight” (Id. at 588); that Miguel then came

towards him; that the bartender then intervened and told both him and Miguel to

leave; that Miguel left first out the front door; that he then ordered a six-pack of

beer to go and left; that he and Crawford walked out of the bar by themselves, and



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he had a beer in his hand; that, as he walked out the door, he heard someone

shouting, and he then saw Miguel slightly down the road; that Miguel then began

walking towards him, and stated, “I fucking told you your ass was mine * * *, I’m

going to fucking kill you,” at which time Miguel “started coming at [him] very,

very fast” (Id. at 592); that he then told Crawford to go back inside the bar; that he

stated to Miguel, “If you want to fight, we can fight. * * * [B]ut I’m telling you I

don’t want to fight you, go home” (Id. at 594); that, as Miguel advanced closer to

him, he could see he had a knife in his hand, and Miguel swung the knife at him;

that, at that point, Strong and Pratt came outside, and he told them that Miguel had

a knife; that Miguel also swung at them several times with the knife; that he did

not see Strong or Pratt hit or kick Miguel; that he did not want to turn his back on

Miguel because he thought he might get stabbed; that Miguel again came toward

him with the knife, and he then told Miguel that if he cut him with the knife, he

was going to hit him with the beer bottle; that Miguel then lunged towards him

and swiped at him with the knife, and he hit him with the beer bottle, striking him

across the shoulder; that Miguel then stood there for a minute, began to bleed, and

stated, “I’m done” (Id at 606); that he did not break the bottle on the ground before

he cut Miguel with it, but the bottle broke when he hit Miguel; that he then left,

went to his Aunt Patricia’s house, and then went to his house with Crawford; that

he would have voluntarily gone to the police station if he knew that Miguel was



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badly injured; that, shortly after he arrived home, the police came to his house and

asked him to come with them; that he told one of the officers that Miguel attacked

him with a knife; that, while speaking with Detective Williamson, he stated

multiple times that Miguel had a knife; and, that he had a conviction for operating

a vehicle while intoxicated, and a juvenile conviction for receiving stolen

property.

       {¶23} On cross-examination, Kramer testified that he never walked by and

smiled at Miguel at the boxing event; that, although Miguel threatened him at the

boxing event, he did not contact the police; that he had a confrontation with his

cousin’s boyfriend while at Sinner’s Bar because he told him that he needed to

leave; that, when he left Sinner’s and Miguel began to yell at him and walk in his

direction, he also walked towards Miguel; that he did not try to go back into

Sinner’s Bar because he had been told to leave, but he did tell Crawford to go back

into the bar; that, in his statement to Detective Williamson, he never said that

Miguel advanced towards him outside Sinner’s Bar; that he also said in his

statement that he told Miguel, “[W]e can do this right here” (Id. at 658); that,

when Strong and Pratt came outside, Miguel swung at them with the knife, but that

each of them would advance on Miguel, which caused the entire altercation to

move continually down the street; that he or Crawford never attempted to contact

the police; and, that, at his initial interview with police, he did not tell them that



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Pratt and Strong were with him that evening because he was asked who went

outside Sinner’s Bar with him in his confrontation with Miguel, and they did not

initially go outside with him, and because they were both on parole and not

supposed to be at the bar.

       {¶24} Subsequently, the jury found Kramer not guilty on the charge of

felonious assault and guilty on the charge of aggravated assault.

       {¶25} In March 2009, the trial court sentenced Kramer to a seventeen-

month prison term on the aggravated assault conviction.

       {¶26} It is from his conviction and sentence that Kramer appeals,

presenting the following assignments of error for our review.

                             Assignment of Error No. I

       THE COURT COMMITTED PLAIN ERROR BY NOT
       INSTRUCTING THE JURY ON DEFENSE OF OTHERS.

                             Assignment of Error No. II

       TRIAL COUNSEL PROVED INEFFECTIVE BY NOT
       REQUESTING A JURY INSTRUCTION ON THE DEFENSE
       OF OTHERS.

                             Assignment of Error No. III

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




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                              Assignment of Error No. I

       {¶27} In his first assignment of error, Kramer argues that the trial court

committed plain error by not giving a defense of others jury instruction.

Specifically, Kramer contends that sufficient evidence was presented to establish

that he was defending both Pratt and Strong when he struck Miguel, such that an

instruction on the defense of others should have been given to the jury. We

disagree.

       {¶28} We initially note that Kramer did not object to the trial court’s

failure to give an instruction on the defense of others, nor did Kramer request such

an instruction. Accordingly, he has waived all but plain error. State v. Lee, 180

Ohio App.3d 739, 2009-Ohio-299, ¶7; Crim.R. 30(A); Crim.R. 52(B).

       {¶29} In order to have plain error under Crim.R. 52(B), there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,

2002-Ohio-68.      Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Plain error exists only in the event that it can be said that “but for the error, the

outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio

St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-

Ohio-825.



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      {¶30} In order for a defendant to assert the affirmative defense of defense

of others, it must be shown that he was “protecting another person from immediate

danger of bodily harm from an assailant as long as the other person could assert

the defense himself.” State v. Streight, 3d Dist. No. 2-01-23, 2002-Ohio-672,

citing State v. Wenger (1979), 58 Ohio St.2d 336. In order make a valid claim of

self-defense, the following showing must be made:

      (1) * * * [he] was not at fault in creating the situation giving rise to
      the affray; (2) * * * [he] has [sic] a bona fide belief that he was in
      imminent danger of death or great bodily harm and that his only
      means of escape from such danger was in the use of * * * force; and
      (3) * * * [he] must not have violated any duty to retreat or avoid the
      danger.

State v. Bowman, 3d Dist. No. 9-01-47, 2002-Ohio-3391, ¶11, quoting State v.

Williford (1990), 49 Ohio St.3d 247, 249. The critical inquiry of a self-defense

claim is into the defendant’s state of mind. State v. Moore, 3d Dist. Nos. 1-06-89,

1-06-96, 2007-Ohio-3600, ¶59. A defendant is only entitled to a jury instruction

on the defense of others where he introduces sufficient evidence that, if believed,

raises a reasonable question as to the existence of the issue. State v. Davis, 5th

Dist. No. 2003 CA 429, 2004-Ohio-7056, ¶14, citing State v. Melchior (1978), 56

Ohio St.2d 15.

      {¶31} In the case sub judice, in order for a defense of others instruction to

be warranted, Kramer must have shown that either Pratt or Strong was not at fault

in creating the confrontation with Miguel; that they believed they were in


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imminent danger of death or serious bodily harm; that their only means of escape

was through the use of force against Miguel; and, that they did not violate the duty

to retreat or avoid the danger.

       {¶32} At trial, testimony was presented that either Kramer, Pratt, or Strong

was at fault in creating the confrontation with Miguel. Pratt testified that he and

Strong both walked outside the bar, and upon seeing Miguel and Kramer in an

altercation, they both surrounded Miguel. Strong testified that, when he and Pratt

walked outside of the bar, Miguel and Kramer were down slightly away from the

bar, and he and Pratt went down by them. Detective Williamson testified that

Kramer told him that he approached Miguel outside the bar, and Miguel testified

that Kramer, Pratt, and Strong all insisted upon fighting him outside of Sinner’s

Bar. Additionally, Kramer testified that, when Pratt and Strong joined in the

confrontation, Miguel did swing the knife at them, but both of them advanced on

Miguel.

       {¶33} Furthermore, the details of the altercation as testified to by Kramer,

Pratt, and Strong all contained marked differences, thereby diminishing the

credibility of their testimony that they could not retreat from the altercation and

that the injury Kramer inflicted upon Miguel was necessary for their self-defense.

       {¶34} In viewing the totality of the evidence presented, we find that

Kramer did not present sufficient evidence to raise the issue of defense of others,



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such that the trial court did not commit plain error in failing to give the instruction.

Furthermore, even if the defense of others instruction would have been given, it is

an untenable position that the outcome of the trial would have been different, as

the jury did not give credibility to Kramer’s argument that he struck Miguel in his

own self-defense, thereby making it extremely unlikely that the jury would have

found Kramer struck Miguel in defense of Pratt or Strong.

       {¶35} Accordingly, we overrule Kramer’s first assignment of error.

                             Assignment of Error No. II

       {¶36} In his second assignment of error, Kramer argues that he was denied

the effective assistance of counsel. Specifically, he contends that trial counsel’s

failure to request an instruction on the defense of others, where there were

sufficient facts presented to raise the defense, prejudiced the outcome of the trial.

We disagree.

       {¶37} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, paragraph two of syllabus.           To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.       Id. at paragraph three of syllabus.      “Reasonable



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probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶38} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.

Murray (1986), 477 U.S. 527.

       {¶39} “In order to show that an attorney’s conduct was deficient or

unreasonable, the appellant must overcome the presumption that the attorney

provided competent representation by showing that the attorney’s actions were not

trial strategies prompted by ‘reasonable professional judgment.’” State v. Price,

3d Dist. No. 13-05-03, 2006-Ohio-4192, ¶7, citing Strickland v. Washington

(1984), 466 U.S. 668, 689. There is a strong presumption that trial counsel’s

decisions fall within the wide range of reasonable professional assistance, Id.,

citing State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, and decisions

related to trial strategy are insufficient to establish an ineffective assistance claim.




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State v. Tosco, 3d Dist. No. 9-08-21, 2009-Ohio-408, ¶ 36 citing State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, ¶101.

       {¶40} Here, we found in Kramer’s first assignment of error that he did not

present sufficient evidence to entitle him to a defense of others jury instruction.

Thus, even if trial counsel would have requested such an instruction, there was no

requirement that it be given. Consequently, any failure of trial counsel to request

the instruction would not have affected the outcome of the trial.

       {¶41} Accordingly, we overrule Kramer’s second assignment of error.

                            Assignment of Error No. III

       {¶42} In his third assignment of error, Kramer argues that his conviction

was against the manifest weight of the evidence. Specifically, Kramer asserts that

two other witnesses corroborated his testimony that he acted in self-defense, and

Miguel’s testimony was shown to be unreliable because it was not corroborated by

any other witnesses and because many portions of his testimony were shown to be

false. We disagree.

       {¶43} When an appellate court analyzes a conviction under the manifest

weight standard, it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction



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must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as

stated by Smith, 80 Ohio St.3d 89, quoting State v. Martin (1983), 20 Ohio App.3d

172, 175. Only in exceptional cases, where the evidence “weighs heavily against

the conviction,” should an appellate court overturn the trial court’s judgment. Id.

       {¶44} In the case at bar, Miguel testified that Kramer instigated the

altercation outside of Sinner’s Bar as he was walking away; that he did walk back

towards Kramer after he left the bar, and even stated he wanted to fight Kramer;

that, however, Kramer, Pratt, and Strong all surrounded him, and he felt he was in

danger; that he did not threaten them with a knife, but removed his keys from his

pocket in order to defend himself; and, that Kramer broke a beer bottle on the

ground and stabbed him.

       {¶45} On the other hand, Kramer testified that Miguel instigated the

altercation outside of the bar; that Miguel attempted to attack him with a knife;

that he hit Miguel with a beer bottle only to defend himself; and, that he told

Miguel that he needed to leave multiple times during the confrontation, but, once

Miguel brandished a knife, he believed that he was unable to safely retreat.

       {¶46} Additionally, Pratt and Strong also testified on behalf of Kramer that

Miguel brandished a knife and was threatening them with it during the altercation.

However, both their testimonies indicated that they made a specific effort to join



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in the altercation, and Kramer also admitted that he also approached Miguel.

Furthermore, although Kramer, Strong, and Pratt all insisted that Miguel had a

knife, testimony was presented that a knife was not found with Miguel’s clothes,

at the scene of the altercation, or along the route in which Miguel walked after the

altercation, and, during Kramer’s initial interview with Detective Williamson, he

only indicated that Miguel had something in his hand; only later did Kramer

indicate that it was a knife.

       {¶47} Therefore, although three eyewitnesses testified that Miguel’s

stabbing was in self-defense, each of these witnesses also presented some

testimony indicating that Kramer was the instigator of the altercation outside the

bar, and that Miguel was forced to defend himself once he was surrounded by

Kramer, Pratt, and Strong. Additionally, Pratt and Strong were Kramer’s friends,

thereby likely diminishing the credibility of their testimony. Furthermore, the

injuries sustained by Miguel are not consistent with Kramer’s account of the

altercation, as he testified that he merely broke the bottle over Miguel’s neck and

shoulder, but Miguel’s injuries, including a severe laceration to his jugular vein,

were more consistent with Miguel’s account of the altercation that Kramer stabbed

him with a broken bottle.

       {¶48} Nevertheless, testimony was presented indicating that Miguel came

to Sinner’s Bar in a rage to confront Kramer.        Miguel testified that he sent



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harassing and threatening text messages to Crawford and Kramer after he saw

them at the boxing event, and that he told Kramer he wanted to fight him when

they met outside Sinner’s Bar.        Also, Miguel admitted to drinking several

alcoholic beverages that evening and ingesting illegal drugs, and Jared Sorg from

Primo’s Bar testified to Miguel’s intoxication and confrontational demeanor that

evening.

       {¶49} However, testimony was also presented indicating that Kramer could

have instigated the altercation with Miguel, as he testified that he approached

Miguel outside Sinner’s Bar; that he was intoxicated that evening; and, that he was

also in an altercation that same evening with his ex-girlfriend and his cousin’s

boyfriend.

       {¶50} Throughout the testimony presented, it was clear that there were two

versions of what occurred outside of Sinner’s Bar, and there was certainly

evidence presented to support both versions. Each of the eyewitnesses to the

stabbing, Kramer, Miguel, Pratt, and Strong, were impeached with their prior

criminal convictions, which diminished their credibility, and each gave testimony

that conflicted with each other’s version of the events. Accordingly, the resolution

of the case came down to a question of credibility, and, being that the jury is in the

best position to weigh witness credibility, State v. Dickinson, 3d Dist. No. 11-08-

08, 2009-Ohio-2099, ¶45, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio



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St.3d 77, and that there was a great deal of evidence indicating that Kramer was

not acting in self-defense, we cannot find that the jury clearly lost its way and

created a manifest miscarriage of justice. Consequently, we find that Kramer’s

conviction for aggravated assault was not against the manifest weight of the

evidence.

       {¶51} Accordingly, we overrule Kramer’s third assignment of error.

       {¶52} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed




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