[Cite as State v. Nye, 2013-Ohio-3783.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-13-05

        v.

SCOTT E. NYE,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 12-CR-0207

                                      Judgment Affirmed

                           Date of Decision: September 3, 2013




APPEARANCES:

        Lisa A. Miller for Appellant

        Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-13-05


SHAW, J.

       {¶1} Defendant-appellant, Scott E. Nye (“Nye”), appeals the February 22,

2013 judgment of the Seneca County Court of Common Pleas journalizing his

conviction by a jury for one count of trespass in a habitation when a person is

present or likely to be present, in violation of R.C. 2911.12(B), (E), a felony of the

fourth degree, and one count of felonious assault, in violation of R.C.

2903.11(A)(2), (D)(1)(a), a felony of the second degree, and sentencing him to

serve three years in prison.

       {¶2} On March 2, 2012, at approximately 10:13 p.m., Lisa Robinson

(“Lisa”) placed a 9-1-1 call requesting an ambulance come to her home at 205 Elm

Avenue in Tiffin, Ohio. Lisa stated that “some random” man came to her door,

attacked her fiancé, and “busted his head with a pipe.” (State’s Exhibit 1). She

further elaborated that her fiancé was bleeding badly, with blood streaming down

his face. Lisa explained that she did not know the man, but was able to give the

dispatcher a physical description of him, including what he was wearing. She also

informed the dispatcher that she obtained a description of the suspect’s vehicle and

the license plate number along with the weapon used to assault her fiancé.

       {¶3} Officers Brent Riley and Jacob DeMonte responded to the call and

identified the victim as Francis Shawn Brickner (“Shawn”).             Officer Riley

observed Shawn to be suffering from a head wound, which was producing a large


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amount of blood. Officer Riley took photographs of Shawn’s injuries prior to

Shawn being transported to the hospital. He also located the weapon used to

assault Shawn and identified it as a torque wrench. The torque wrench was

covered with blood and hair. Shawn gave a description of the assailant and his

vehicle consistent with the one given by Lisa to the dispatcher. Based on this

information, Officer Riley was able to identify the defendant, Nye, as a possible

suspect. Shawn and his friend John Robertson (“John”), who was also at the

house that night, both identified Nye in a photo line-up.

       {¶4} Officers Riley and DeMonte learned from their investigation at the

scene that a woman named Randi Roush (“Randi”) was with Nye that night.

Specifically, the officers were told that when Nye confronted Shawn at his back

door, he demanded to speak to a woman named Randi or Mandy. Officer Riley,

along with Officer Jacob DeMonte, located Randi and interviewed her. Randi

took Officer Riley back to the scene and explained that Nye drove her to the

location and gave her $450.00 to purchase some Marijuana. The officers learned

that there are two residences on the property, the one where Lisa and Shawn lived,

and a “rear” residence behind their house. Randi informed the officers that she

was in the rear residence that night.         Randi also explained that, due to

complications with the drug transaction, she still had Nye’s $450.00 in her

possession, which the officers confiscated.


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       {¶5} Law enforcement was unable to immediately locate Nye. However,

Officer Joseph O’Connor was able to locate Nye’s vehicle and had it towed to the

police department garage. Officer O’Connor observed blood stains on the driver

seat and passenger seat. He also located a small tool box in the center passenger

seat section of the vehicle. Photographs taken from inside the vehicle also showed

blood on the roof and visors above the driver seat and passenger seat, blood on the

steering wheel and steering column, blood on the floor throughout the front

compartment, and blood on the radio and temperature controls.

       {¶6} Several days after the incident, Nye turned himself into law

enforcement.    After further investigation, Nye was indicted on one count of

trespass in a habitation when a person is present or likely to be present, and one

count of felonious assault with a deadly weapon. Nye pleaded not guilty to the

charges. The case proceeded to a jury trial, where several witnesses testified. The

following is a summary of the testimony presented at trial, which further

elaborates on the events that transpired that night.

       {¶7} The victim, Shawn Brickner, testified for the prosecution.

Specifically, he testified that on the night of March 2, 2012, he was playing pool in

his basement with Lisa and John, when he heard a very loud pounding on the door.

Shawn ran upstairs to see who was at the door and encountered Nye, a man whom

he had never seen before. Shawn immediately noticed that Nye was in a panic.


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Shawn cracked open the storm door to talk to Nye and then Nye attempted to step

into Shawn’s home, yelling a woman’s name and demanding his money.

      {¶8} Shawn reacted by shoving Nye back out the door, but Nye was

persistent in trying to enter the home. Shawn told Nye that he had no idea who

this woman was and told him to leave, but Nye was adamant about getting into the

house. Shawn stated that he then grabbed Nye by the arm and shirt collar, and

escorted him to his vehicle, which was parked in the alley behind the property

approximately fifteen yards from the home. Shawn claimed he did not punch or

hit Nye as they walked to the back of the property. Shawn described Nye as

continuously “rubbernecking” over his shoulder and trying to turn around to go

back to the residence, convinced that the woman he was looking for and his

money were in Shawn’s home. Shawn explained that he felt it was necessary to

escort Nye to his vehicle, because he believed that if he let Nye go, Nye would

simply attempt to run back to his door.

      {¶9} When they reached Nye’s vehicle, Shawn opened the door and

pushed Nye into the driver seat. At this point, Shawn released his grip on Nye

believing that Nye would start his vehicle and leave the property. However, as

Shawn began to close the door, Nye pushed the door open and lunged at him, still

convinced that he needed to get inside Shawn’s home. Shawn was able to push

Nye back into the seat and tried to control his movements. Shawn stated that he


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then heard John’s voice yelling “Shawn! Shawn! I’m here! Let him go.” Shawn

now believed that if he let go of Nye, Nye would leave the property. However,

Shawn noticed Nye abruptly sit back into his seat and move his hand down to grab

something shiny. Shawn then observed a long metal object emerge from the car,

which Nye used to hit him on the bridge of the nose.

       {¶10} Shawn explained that when he was first hit with the torque wrench

he was standing outside Nye’s vehicle, thinking that Nye was going to close the

door and leave. Being afraid of getting hit again, Shawn attempted to grab the

torque wrench from Nye while Nye repeatedly struck him in the head with the

wrench. Much of the subsequent struggle involving the torque wrench occurred

inside Nye’s vehicle. Eventually, Shawn was able to get the wrench away from

Nye and threw it into the yard. Nye then started his vehicle and screeched the tires

as he fled the scene. Shawn stated that multiple staples were put into his head as a

result of the injuries he sustained from the altercation.

       {¶11} On cross-examination, Shawn explained that there is a second

residence on the property that looks like a garage, where two younger adults lived

at the time. However, other than the occasional “hello,” Shawn was unacquainted

with the residents.

       {¶12} John also testified for the prosecution and recalled what he observed

that night. John stated that he was in the basement playing pool with Lisa and


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Shawn when they heard the screen door make a loud noise as if the wind had

blown it open. Shawn went upstairs to investigate. John heard some commotion

and then Lisa came down to the basement and stated that someone was trying to

get into the back door. John heard Shawn say “Get out of the house. Get off the

property.” (Tr. at 166).

       {¶13} John went upstairs to see what was happening. When he got to the

back door, John observed Shawn walking down the sidewalk with Nye, telling

Nye to get off the property. John stated that Shawn was not pushing or hitting

Nye as he escorted Nye to his vehicle. Shortly after Nye reached his vehicle, John

recalled Nye stating to Shawn, “I got something for you, mother fucker” and then

Nye pulled out a metal bar and started swinging. (Id.). John explained that after

Nye struck Shawn with the weapon a few times, John tried to grab the wrench

from Nye but was unsuccessful. John recalled that Nye had Shawn in a headlock

inside the van while he was hitting Shawn with the wrench. John then ran around

to the passenger side of the vehicle and took Nye’s keys. He explained he told

Nye that he would not give him the keys back until Nye dropped the wrench. Nye

then dropped the wrench and John dropped the keys on the floor board. John

stated that Nye then let Shawn go, Shawn exited the van, and Nye picked up the

keys and fled the scene. John stated that during the incident he also heard Nye

calling out a woman’s name, Randi or Brandie.


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       {¶14} Lisa also provided testimony for the prosecution. On the night in

question, Lisa stated she was in the basement of her home with Shawn and John

when they heard a loud pounding at the door. Lisa was standing at the bottom of

the stairs when she saw Shawn open the door. Lisa climbed up a few steps to get a

closer view and saw Nye take a step into the house. Lisa described Nye as

“furious” and remembered him saying “she’s in your house. I know she’s in your

house. She has my money.” (Tr. at 186). Lisa stated that Nye was in Shawn’s

face repeating himself about the woman and his money and was persistent about

trying to get into the house to look for the woman. She recalled Shawn being

shocked and scared by the situation. Lisa then witnessed Shawn push Nye back

across the breezeway.

       {¶15} Lisa observed Shawn escort Nye to his vehicle. Once they reached

the vehicle, Lisa witnessed an altercation occur between Shawn and Nye in which

they appeared to be wrestling each other and Shawn’s arms were up as if he was

blocking something. When the struggle ended, Shawn emerged with his face

covered in blood. Lisa called the police and Nye left the scene in his vehicle. Lisa

recalled that after Nye left, a woman named Randi or Brandi appeared. Lisa had

never seen this woman before. Lisa stated that she and Shawn then returned to

their home to wait for the ambulance to arrive.




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       {¶16} Randi Roush also testified for the prosecution. She testified that

Nye drove her to 205 Elm Avenue in Tiffin to purchase some Marijuana from

some people she knew who lived in the rear residence on the property. Nye

remained in the car while she completed the transaction. Randi returned to the

vehicle with the drugs.        However, Nye did not approve of the quality of the

Marijuana and told her to get his money back. Randi went back into the rear

residence to get Nye’s money back and engaged in a conversation with the

residents. During this time, she received two phone calls from Nye. The first call

she missed, but the second call she answered and Nye indicated that he wanted to

leave. Randi stated she then left the rear residence and walked toward Nye’s

vehicle. There, she saw two people, a man and a woman, standing by the vehicle.

She approached the vehicle and opened the passenger side door. There, she

observed blood inside the vehicle and saw Shawn holding Nye’s head between the

driver seat and passenger seat, trying to calm Nye down. Randi testified that she

heard Lisa call the police and then John told her to leave because she was not

involved in the altercation.

       {¶17} Nye testified in his defense. He stated that he felt Randi was gone “a

good ten or fifteen minutes” when she went back into the house for a second time

to get his money. (Tr. at 306). He testified that he was worried about Randi so he

decided to go to the house to get her. He knocked on the door and Shawn


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answered. Nye stated that Shawn was immediately confrontational with him. Nye

denied stepping into the house. He claimed that he turned around to leave after

Shawn told him he did not know Randi. Nye stated that Shawn then proceeded to

shove him from behind all the way to his vehicle.

      {¶18} Nye testified that once they reached his vehicle, Shawn told him that

he needed to leave. Nye responded that he did not intend to leave the property

because he was going to wait for Randi. Nye claimed Shawn shoved him again.

Nye stated that he grabbed the wrench and warned Shawn that if he touched him

again, he was going to hit Shawn with the wrench. Nye admitted on the stand that

he kept the wrench in his vehicle as a weapon in case someone attacked him. Nye

claimed Shawn then tackled him into the vehicle and he swung the wrench at

Shawn, but missed. Notably, the prosecution presented the testimony of a law

enforcement officer who indicated that Nye stated in an interview that he first

swung at Shawn when Shawn was standing outside the vehicle. Nye further

testified he was on his back in the vehicle as Shawn was punching him. Nye then

started hitting Shawn with the wrench. Nye recalled Shawn telling him that he

was not going to let go of him until Nye released the wrench. Nye remembered

seeing Randi while Shawn was on top of him. He also recalled that at one point

John had grabbed ahold of his keys and told him to drop the wrench if he wanted




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his keys back. Once Nye dropped the wrench, John gave him his keys and Nye

left the scene.

       {¶19} The jury deliberated after hearing the evidence.          The jury was

instructed on the affirmative defense of self-defense—specifically pertaining to

Nye’s version of the events. The jury was also instructed that Nye had no duty to

retreat once inside his vehicle. However, the trial court did not instruct the jury on

the presumption of self-defense contained in R.C. 2901.05(B)(1), Ohio’s codified

version of the “Castle Doctrine,” which would have required the prosecution to

demonstrate by a preponderance of the evidence that Nye did not act in self-

defense.

       {¶20} The jury subsequently returned verdicts of guilty on both charges,

finding that Nye did not prove by a preponderance of the evidence that he acted in

self-defense that night.

       {¶21} The trial court sentenced Nye to serve twelve months in prison for

his conviction on count one, trespass in a habitation, and three years in prison for

his conviction on count two, felonious assault.        The trial court ordered the

sentences to run concurrently for a total stated prison term of three years.

       {¶22} Nye now appeals asserting, the following assignments of error.

                           ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED WHEN IT FAILED TO
       PROVIDE THE JURY WITH A PROPER INSTRUCTION IN

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       ACCORDANCE WITH R.C. 2901.05(B)(1) DENYING THE
       DEFENDANT-APPELLANT DUE PROCESS OF LAW
       PURSUANT TO THE FIFTH AND FOURTEENTH
       AMENDMENTS OF THE UNITED STATES CONSTITUTION
       AND SECTION 16, ARTICLE 1 OF THE OHIO
       CONSTITUTION.

                       ASSIGNMENT OF ERROR NO. II

       THE CONVICTION OF DEFENDANT-APPELLANT BY THE
       JURY SHOULD BE REVERSED BECAUSE IT WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       IN FINDING THE DEFENDANT-APPELLANT GUILTY OF
       THE CRIME OF FELONIOUS ASSAULT (COUNT TWO OF
       THE INDICTMENT), IN VIOLATION OF R.C. §
       2903.11(A)(2), (D)(1)(A).

                             First Assignment of Error

       {¶23} In his first assignment of error, Nye contends that the trial court

failed to properly instruct the jury on self-defense. Specifically, Nye argues that

the trial court erred when it failed to give an instruction on the rebuttable

presumption of self-defense contained in R.C. 2901.05(B)(1).

       {¶24} At the outset, we note that there is some discrepancy on appeal

regarding the appropriate standard of review for this issue.         The prosecution

argues that we should review this assignment of error under the plain error

standard because Nye did not object at trial to the trial court’s failure to give a

specific instruction on the presumption of self-defense. See Crim.R. 30(A)(stating

that “[o]n appeal, a party may not assign as error the giving or failure to give any

instructions unless the party objects before the jury retires to consider its verdict *

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* *”). However, Nye maintains that he preserved this issue for appeal because

prior to trial he submitted proposed jury instructions which included the statutory

language regarding the presumption of self-defense stated in R.C. 2901.05(B)(1).

Therefore, Nye argues that this Court should review this issue for an abuse of

discretion. See State v. Wolons, 44 Ohio St.3d 64, 68 (1989).

       {¶25} Notably, in construing Crim.R. 30(A), the Supreme Court of Ohio

has held that “[a] party does not waive his objections to the court’s charge by

failing to formally object thereto (1) where the record affirmatively shows that a

trial court has been fully apprised of the correct law governing a material issue in

dispute, and (2) the requesting party has been unsuccessful in obtaining the

inclusion of that law in the trial court’s charge to the jury.” State v. Wolons, 44

Ohio St.3d at paragraph one of the syllabus (1989); see, also, State v. Fine, 2d

Dist. Miami No. 09CA00032, 2010-Ohio-2637, ¶ 21 (finding that submitting

proposed jury instructions preserved the issue for appeal and stating that the

purpose of the Crim.R. 30(A) requirement that the party object to a jury

instruction before the jury retires to consider its verdict is to give the trial court an

opportunity to correct an erroneous instruction before the jury begins its

deliberations on the instructions the court gave).

       {¶26} We concur with the foregoing authority and conclude that in this

instance Nye preserved the issue for appeal when he submitted proposed jury


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instructions to the trial court which included the presumption of self-defense

contained in R.C. 2901.05(B)(1). However, even if we were to conclude that Nye

failed to preserve this issue for appeal, our analysis of this case would be the same.

       {¶27} The trial court provided the following instruction to the jury

regarding the affirmative defense of self-defense.

                                  SELF DEFENSE

       The defendant claims to have acted in self-defense. To establish
       a claim of self-defense, the defendant must prove by the greater
       weight of the evidence that
       (A)—he was not at fault in creating the situation giving rise to
       felonious assault; and
       (B)—he had reasonable grounds to believe and an honest belief,
       even if mistaken, that he was in imminent danger of death or
       great bodily harm, and that his only reasonable means of retreat
       or escape from such danger was by the use of deadly force; and
       (C)—he had not violated any duty to retreat or escape to avoid
       the danger.

       ***
                               DEFENSE OF VEHICLE

       A person who lawfully is an occupant of his vehicle has no duty
       to retreat before using force in self-defense.

(Jury Instructions pp. 8-9).

       {¶28} In rendering its verdict, the jury specifically found that Nye failed to

prove by a preponderance of the evidence that his conduct that night met the

elements of self-defense. Nevertheless, Nye maintains that the outcome of the




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trial would have been different if the jury was instructed on the presumption of

self-defense contained in R.C. 2901.05(B)(1), which states in pertinent part:

       [A] person is presumed to have acted in self-defense or defense
       of another when using defensive force that is intended or likely
       to cause death or great bodily harm to another if the person
       against whom the defensive force is used is in the process of
       unlawfully and without privilege to do so entering, or has
       unlawfully and without privilege to do so entered, the residence
       or vehicle occupied by the person using the defensive force.

Nye argues that the presumption of self-defense stated above is applicable to his

case because the felonious assault took place inside his vehicle. Nye further

argues that Shawn was without privilege to enter his vehicle. In making this

argument, it is apparent that Nye misconstrues the circumstances entitling a

defendant to the presumption of self-defense.

       {¶29} Specifically, R.C. 2901.05(B)(1) clearly contemplates a scenario of a

home/car invasion—i.e., the person against whom the defensive force is used is in

the process of unlawfully and without privilege entering (or has entered) the

defendant’s residence or vehicle. The evidence in this case does not establish that

Shawn was in the process of invading Nye’s vehicle when Nye assaulted him with

the torque wrench. Nye never testified that he struck Shawn with the wrench

because Shawn was attempting to enter his vehicle. Rather, Nye claimed his

reason for hitting Shawn with the wrench was because he wanted Shawn to leave

him alone. Nye testified that immediately prior to hitting Shawn with the wrench


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he told Shawn that he was not leaving the property without Randi. The testimony

from multiple witnesses, including Nye’s admission to law enforcement,

demonstrated that Nye first struck Shawn with the wrench while Shawn was

standing outside the vehicle. This is also consistent with Shawn’s testimony that

Nye did not use defensive force to deter him from entering the vehicle. On the

contrary, the evidence demonstrates that Nye’s use of force was inflicted with the

purpose to remove Shawn as an obstacle in preventing him from gaining access to

Shawn’s home. Thus, the facts of this case fail to establish that the home/vehicle

invasion scenario described in R.C. 2901.05(B)(1) occurred for the presumption of

self-defense to apply.

       {¶30} Even assuming arguendo that the facts of this case implicated the

presumption of self-defense contained in R.C. 2901.05(B)(1) and that the burden

had been shifted to the prosecution to prove Nye did not act in self-defense, the

record shows that the prosecution presented evidence to adequately rebut the

presumption by a preponderance of the evidence. See R.C. 2901.05(B)(3). Ohio

appellate courts, including this one, have stated that the presumption of self-

defense may be rebutted by evidence showing the defendant’s conduct in the

affray did not meet the elements of self-defense. See e.g., State v. Hadley, 3d Dist.

Marion No. 9–11–30, 2013-Ohio-1942, ¶ 61; State v. Petrone, 5th Dist. Stark No.

2011CA00067, 2012–Ohio–911, ¶ 73.


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       {¶31} Referring back to the elements of self-defense as properly given in

the trial court’s jury instructions, the prosecution’s evidence demonstrated that

Nye’s conduct did not meet the elements of self-defense. First, the prosecution

presented evidence that Nye was at fault in creating the situation giving rise to the

felonious assault. Multiple witnesses testified to Nye’s persistence in getting into

Shawn and Lisa’s home, which sparked the incident leading to the altercation at

Nye’s vehicle. Shawn testified he believed that if he had not escorted Nye off the

property and then physically restrained Nye from leaving his vehicle, Nye would

have again attempted to enter his home.

       {¶32} Second, the prosecution also demonstrated that Nye did not have

reasonable grounds to believe he was in imminent danger of death or great bodily

harm and that his only reasonable response was the use of deadly force. Nye

admitted that Shawn did not have a weapon. He also testified that Shawn told him

that he would let him go if Nye dropped the wrench. However, it was not until

John appeared on the scene and took Nye’s keys that Nye finally dropped the

wrench and the struggle ended. This is consistent with Shawn’s testimony that he

did not engage in the physical struggle with Nye until after Nye struck him with

the wrench while he was standing outside the vehicle. It was at that point the

struggle extended into Nye’s vehicle as Shawn, who feared for his life, attempted

to wrestle the wrench away from Nye.


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       {¶33} Given the evidence presented at trial, we believe that the outcome

would not have been different if the burden was shifted to the prosecution to prove

by a preponderance of the evidence that Nye’s conduct did not meet the elements

of self-defense. Therefore, based on the facts and circumstances of this case, we

conclude that the trial court did not err in declining to give an instruction on the

presumption of self-defense to the jury. Accordingly, Nye’s first assignment of

error is overruled.

                             Second Assignment of Error

       {¶34} In his second assignment of error, Nye argues that the jury verdict

convicting him of felonious assault was against the manifest weight of the

evidence.

       {¶35} In determining whether a conviction is against the manifest weight

of the evidence, a reviewing court must examine 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. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).      A reviewing court must, however, allow the trier of fact




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appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶36} Nye was convicted of felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree. Specifically, R.C. 2903.11(A)(2)

states in pertinent part:

       (A) No person shall knowingly do either of the following:

       ***

       (2) Cause or attempt to cause physical harm to another * * * by
       means of a deadly weapon or dangerous ordnance.

       {¶37} On appeal, Nye contends that the jury verdict was against the

manifest weight of the evidence because he acted in self-defense when he

repeatedly struck Shawn in the head with the torque wrench.

       {¶38} At trial, Nye testified in his defense and presented his version of the

events to support his claim of self-defense. As the trier of fact, the jury was

charged with determining the credibility of the witnesses and resolving any

conflicting testimony. In the end, the jury chose to believe the prosecution’s

witnesses over Nye and specifically found that Nye failed to demonstrate by a

preponderance of the evidence that he acted in self-defense when he assaulted

Shawn with the torque wrench. Moreover, as previously discussed, Nye has also

failed to demonstrate that the outcome of the trial would have been different had

the jury been instructed to presume he acted in self-defense because the

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prosecution presented ample evidence to rebut the presumption by a

preponderance of the evidence.     Finally, we also note that the prosecution

presented evidence more than adequate to prove the elements of felonious assault

beyond a reasonable doubt. Accordingly, we cannot find that the jury clearly lost

its way such that a new trial is warranted. Nye’s second assignment of error is

overruled.

       {¶39} Based on the foregoing, the judgment and sentence of the Seneca

County Court of Common Pleas is affirmed.

                                                            Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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