[Cite as State v. Watts, 2019-Ohio-4856.]


                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :   APPEAL NO. C-180545
                                                TRIAL NO. C-18CRB-20171
        Plaintiff-Appellee,                 :
                                                   O P I N I O N.
  vs.                                       :

ANTONIO WATTS,                              :

      Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 27, 2019


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jon Vogt,
Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public
Defender, for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.

         {¶1}   A reunion between two long-time (but now erstwhile) friends, with some

early-morning alcohol added to the mix, resulted in an assault charge and conviction for one

of them against the other. Defendant-appellant Antonio Watts now appeals, challenging his

conviction as against the manifest weight of the evidence. But he lost the credibility battle

before the trial judge, and we see no basis as to how the court went astray on the record

before us. The defendant also presents a Confrontation Clause argument, but this fails at a

threshold level because the state offered no testimonial statement by an unavailable witness

at trial. We therefore affirm the trial court’s judgment and overrule the assignments of

error.

                                              I.

         {¶2}   After a night spent between two old friends, Mr. Watts and Tonia Humphry

engaged in a physical altercation upon Mr. Watts’s return from an early morning errand (for

a neighbor) to procure some additional beer. After growing tired of awaiting his return, Ms.

Humphry decided to leave Mr. Watts’s apartment, stopping in the courtyard of the complex

to converse with a neighbor, Ruby Mascus, on her way out to enjoy her day. Both sides

present divergent stories as to what happened next.         According to Mr. Watts, upon

returning to his apartment complex, an irritated Ms. Humphry greeted him with a punch to

his face, seemingly for no apparent reason. In reaction to Ms. Humphry’s aggression, he hit

her back, knocking her to the ground. After this altercation, Mr. Watts claims he quickly ran

up to his apartment to make sure Ms. Humphry did not steal anything of his, and then

returned to the courtyard to find the police already on the scene, apparently waiting for him.

         {¶3}   But there is another side to this story, as Ms. Humphry recalls the incident

very differently. According to her, Mr. Watts angrily stormed into the courtyard, gripping



                                                   2
                       OHIO FIRST DISTRICT COURT OF APPEALS



an open beer can, and, despite her attempts to calm him down, he hit her face with the can,

slicing her lip. After she regained her footing, Mr. Watts then punched her again, causing

her to lose consciousness. The next thing Ms. Humphry recalls is waking up in the hospital.

       {¶4}   In the midst of these events, Officer Brown arrived on the scene, observing an

unconscious and injured female (later identified as Ms. Humphry) being loaded into an

ambulance. About an hour later, Officer Brown tracked down Mr. Watts, informing him

that he was a suspect of an alleged assault, to which he protested, “She swung on me, so I

had to defend myself.” Subsequently, Mr. Watts was charged and tried for assault.

       {¶5}   At trial, testifying in his own defense, Mr. Watts reiterated that he acted only

in self-defense when hitting Ms. Humphry. In addition to considering both Mr. Watts’s and

Ms. Humphry’s conflicting accounts of their altercation, the trial court also heard from

Officer Brown concerning her observations upon arriving at the scene. But the only other

witness to the event (Ms. Mascus, the neighbor) did not testify. The trial court ultimately

believed Ms. Humphry’s side of the story, finding that Mr. Watts failed to prove his self-

defense claim by a preponderance of the evidence, and accordingly it found him guilty of

assault.   From this conviction, Mr. Watts now presents two assignments of error,

challenging first the weight of the evidence in light of his self-defense claim and, second,

contending that the court violated his Sixth Amendment right to confront witnesses by

admitting at trial statements made by a nontestifying witness.

                                             II.

       {¶6}   We begin with Mr. Watts’s weight of the evidence challenge. When reviewing

the weight of the evidence, we must inspect the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and conclude whether, in

resolving conflicts in the evidence, the court clearly lost its way and created a manifest



                                                   3
                          OHIO FIRST DISTRICT COURT OF APPEALS



miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

We see no such error on the record before us.

        {¶7}    Mr. Watts maintains that he proved by a preponderance of the evidence that

he acted in self-defense when hitting Ms. Humphry, and thus his assault conviction

contravenes the manifest weight of the evidence. To establish self-defense in a nondeadly

force case, Mr. Watts must prove by a preponderance of the evidence that (1) he was not at

fault in creating the situation, (2) he reasonably believed some force was necessary to

defend himself against the imminent use of unlawful force, and (3) the force used was

unlikely to cause death or great bodily harm. State v. Salaam, 2015-Ohio-4552, 47 N.E.3d

495, ¶ 15 (1st Dist.).1 Importantly, if Mr. Watts “fails to prove any one of the elements of

self-defense by a preponderance of the evidence, he has failed to demonstrate that he acted

in self-defense.” State v. Kimmell, 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 21.

        {¶8}    After a review of the record, we cannot agree with Mr. Watts that the trial

court clearly lost its way. The evidence adduced at trial presents numerous reasons to

question his credibility. For instance, although he insisted that he struck Ms. Humphry

(only once) in self-defense, upon cross-examination he admitted that he hit her out of anger.

He also denied that Ms. Humphry ever lost consciousness, testifying that she seemed more

than fine after the incident, which conflicts both with her account and that of Officer Brown,

who witnessed her with blood and injuries to her face being whisked away by ambulance.

Casting further doubt on his credibility, Mr. Watts confessed he did not remember talking to

Officer Brown after the incident because he “was really drunk.”

        {¶9}    In light of the evidence presented at trial, the court had at its disposal

testimony from Mr. Watts, Ms. Humphry, and Officer Brown—not to mention the

1 The General Assembly amended R.C. 2901.05 effective March 28, 2019, to shift the burden of proof of

self-defense from the defendant to the state. Mr. Watts’s trial occurred before this change in the law, and
accordingly we address his arguments under the law at the time of trial.

                                                        4
                       OHIO FIRST DISTRICT COURT OF APPEALS



opportunity to view Ms. Humphry’s injuries firsthand.          While the trial court heard

testimony from Mr. Watts disputing the state’s evidence and supporting his self-defense

claim, the judge, as the trier of fact, could apportion weight to each party’s testimony, and

did so here, finding Ms. Humphry’s story more persuasive. Mr. Watts lost the credibility

contest, and on the record before us, we see no basis to disturb his conviction. Accordingly,

we overrule his first assignment of error.

                                                III.

       {¶10} Turning to the second assignment of error, Mr. Watts raises a constitutional

issue, insisting that the trial court violated his Sixth Amendment right to confront witnesses

by permitting Officer Brown to testify regarding out-of-court statements made by

nontestifying witness Ms. Mascus. The Sixth Amendment’s Confrontation Clause prohibits

“testimonial statements of a witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Although the rule

against hearsay and the Confrontation Clause generally protect similar principles, “the

Confrontation Clause may bar the admission of evidence that would otherwise be admissible

under an exception to the hearsay rule.” State v. Issa, 93 Ohio St.3d 49, 60, 752 N.E.2d 904

(2001). Regardless, Mr. Watts only presents a Confrontation Clause argument to us in this

appeal.

       {¶11} Recently, we elaborated upon the Confrontation Clause analysis regarding

statements uttered during the course of a police investigation, and the circumstances that

tip them into the “testimonial statements” category—including, but not limited to, the

absence of an ongoing emergency and instances where the officer’s questions and the

declarant’s answers suggest the primary purpose of the interrogation is to establish facts



                                                  5
                       OHIO FIRST DISTRICT COURT OF APPEALS



possibly relevant later for prosecution. See State v. Smith, 1st Dist. Hamilton No. C-180499,

2019-Ohio-3257, ¶ 11. But we need not wrestle with those issues here, because Officer

Brown never testified as to any statements made by Ms. Mascus. Instead, Officer Brown

merely relayed that she relied on Ms. Mascus’s witness statement about the altercation in

her decision to charge Mr. Watts with assault:

       Q: Okay. So you didn’t - - don’t tell me anything she said, but you talked to

       [Ms. Mascus]?

       A: Correct.

       Q: And that was part of your investigation?

       A: Yes.

       Q: Okay. So I asked you if you based your decision to file charges on the

       defendant on anything other than what we talked about? Now we’ve talked

       about your conversation with Ruby, is there anything else?

       A: The condition of the victim and the witness statements those are what I

       based my investigation on, and that’s why I signed warrants.

       {¶12} Officer Brown’s references to Ms. Mascus’s statements do not trigger

Confrontation Clause concerns here because she never revealed the substance of any

potentially testimonial statements (following the state’s directive not to). We therefore also

overrule Mr. Watts’s second assignment of error.

       {¶13} For the foregoing reasons, we find Mr. Watts’s first and second assignments

of error lack merit, and are accordingly overruled. The judgment of the trial court is

affirmed.

                                                                         Judgment affirmed.




                                                   6
                       OHIO FIRST DISTRICT COURT OF APPEALS


MYERS, P. J., and CROUSE, J., concur.

Please note:
       The court has recorded its own entry this date.




                                                   7
