[Cite as State v. Moses, 2014-Ohio-1748.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :                     No. 13AP-816
                                                                   (M.C. No. 2012 CRB 29789)
v.                                                :
                                                                   (REGULAR CALENDAR)
Anthony Moses,                                    :

                 Defendant-Appellant.             :


                                            D E C I S I O N

                                      Rendered on April 24, 2014


                 Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, for
                 appellee.

                 Ambrose Moses, III, for appellant.

                       APPEAL from the Franklin County Municipal Court

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Anthony Moses, appeals from a judgment of the
Franklin County Municipal Court finding him guilty of assault, in violation of R.C.
2903.13(A), and disorderly conduct, in violation of Columbus City Code 2317.11(A)(1).
For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} The evidence presented at trial showed that on August 19-20, 2012, the
victim, Nicholas D. Klacik, went to the Ugly Tuna Saloona in Columbus with two of his
roommates, Graham McCready and Steven Stanislaw. Appellant was working as a DJ at
the bar, performing on an elevated stage that had a DJ table located in the center.
        {¶ 3} Testimony at trial indicated Klacik, McCready, and Stanislaw sat at a table
approximately 25-30 feet from the stage drinking beer. Shortly after arriving at the bar,
Klacik walked to the DJ stage to request appellant play a specific song. Klacik and
No. 13AP-816                                                                                           2

appellant got into a verbal confrontation. Appellant then turned off the music and said
into the microphone that he would give Klacik until the count of three to "get out of my
face." (July 22, 2013 Tr. 69.) Appellant then punched Klacik in the face. Klacik suffered a
chipped tooth and damage to his lip.
        {¶ 4} Moments after the altercation, the bar's security staff removed Klacik from
the bar. After leaving the bar, Klacik, McCready, and Stanislaw walked back to their
apartment. Soon thereafter, McCready went to a nearby house where he saw a police
officer and asked her to come to the apartment. The officer took statements from Klacik,
McCready, and Stanislaw. Because appellant's identity was unknown, the officer referred
Klaick to the prosecutor's office.
        {¶ 5} According to the record, on October 25, 2012, Klacik went to the Columbus
City Prosecutor's Office to file a criminal complaint against appellant. The prosecutor's
office could not file charges until it confirmed appellant's identity. Approximately two
weeks later, on the morning of November 6, 2012, the prosecutor evaluated Klacik's
complaint and found probable cause existed to file charges as soon as the prosecutor's
office confirmed appellant's identity. Later that morning, appellant went to the
prosecutor's office to file a criminal complaint against Klacik.1
        {¶ 6} On November 27, 2012, the prosecutor filed charges against appellant for
one count of assault, in violation of R.C. 2903.13(A), and one count of disorderly conduct,
in violation of Columbus City Code 2317.11(A)(1). Appellant filed a motion to dismiss for
selective prosecution and a motion to compel discovery prior to trial. At the hearing on
the motions, appellant withdrew his motion to compel and the court denied his motion to
dismiss.
        {¶ 7} Appellant waived trial by jury and the trial court held a hearing on July 22,
2013. Appellant moved for judgment of acquittal under Crim.R. 29 at the close of the
state's case. The trial court denied appellant's motion. The trial court found appellant
guilty of both assault and disorderly conduct in a written decision dated July 29, 2013.
Appellant moved for a new trial on August 8, 2013. The trial court denied that motion in
a written decision filed August 22, 2013.

1 Though not in the record, during oral argument, counsel for appellant said that someone called the bar on

November 6 and asked about the incident. It was after that phone call that appellant went to the
prosecutor's office to file a cross-complaint.
No. 13AP-816                                                                           3

       {¶ 8} Appellant timely appealed his convictions for assault and disorderly
conduct. Appellant also appeals from the trial court's denial of his motion to dismiss for
selective prosecution, denial of his motion for a judgment of acquittal, and denial of his
motion for a new trial.
II. Assignments of Error
       {¶ 9} On appeal, appellant assigns the following 11 errors for our review:
              1. The trial court and the prosecutor knew that the perception
              of racial discrimination in Ohio's criminal justice system has a
              basis in statistical fact, and committed structural error and
              fundamental error when they opposed and denied Moses'
              motion to dismiss due to selective prosecution.

               2. It was structural error and fundamental error for the
              prosecutor, after deciding to prosecute Anthony Moses, to
              interrogate Moses without the presence or assistance of his
              attorney, thus denying him Fifth, Sixth, and Fourteenth
              Amendment rights.

               3. It was structural error and fundamental error for the
              prosecutor, after deciding to prosecute Moses, and in violation
              of the prosecutor's own policy, to refuse to assign Moses'
              cross-filed complaint against the state's prosecuting witness to
              a special prosecutor for probable cause purposes concerning
              whether the state's prosecuting witness engaged in unlawful
              conduct, including but not limited to, disorderly conduct in
              violation of Columbus City Code §2317.11(B).

              4. It was structural error and fundamental error for the
              prosecutor, acting under color of law, and having no evidence
              to the contrary, to abuse his discretion by purposefully
              undermining, mischaracterizing, and misapplying statements
              set forth in the Columbus Division of Police's Preliminary
              Investigation which stated, categorically, that the State's
              witness, Nicholas Klacik, was intoxicated.

              5. The trial court erred in denying Moses' motion for a
              judgment of acquittal.

              6. The trial court erred in denying Moses' motion for a new
              trial.

              7. The state's use of false testimony at trial that the prosecutor
              knew, or should have known, was false was plain error,
No. 13AP-816                                                                            4

              structural error, and fundamental error which was prejudicial
              to Moses and denied him a fair trial.

              8. The trial court erred as a matter of law in failing to apply
              the law of defense of property to the facts of this case.

              9. The trial court erred as a matter of law and failed to
              properly apply the law of self-defense to the facts of this case.

              10. The trial court, as trier of fact, lost its way and made a
              finding of guilty that was against the manifest weight of the
              evidence and is not supported by sufficient, reliable, or
              credible evidence.

              11. The trial court's finding that Moses did not act in self-
              defense was against the manifest weight of the evidence.

III. Discussion
       {¶ 10} For ease of discussion, we will consider appellant's assignments of error out
of order.
       A. First and Fourth Assignments of Error: Selective Prosecution
       {¶ 11} In his first and fourth assignments of error, appellant claims the trial court
erred when it failed to dismiss the charges against him due to selective prosecution based
on appellant's race. Appellant argues the prosecutor discriminated against him based on
his race because the prosecutor charged appellant but did not approve charges on his
cross-complaint against the victim, a white male.
       {¶ 12} "A selective-prosecution claim is not a defense on the merits to the criminal
charge itself, but an independent assertion that the prosecutor has brought the charge for
reasons forbidden by the Constitution." State v. Getsy, 84 Ohio St.3d 180, 203 (1998),
citing United States v. Armstrong, 517 U.S. 456, 463 (1996).
       {¶ 13} The Supreme Court of Ohio examined a selective prosecution claim in State
v. Flynt, 63 Ohio St.2d 132, 134 (1980), and articulated a two-part test for establishing a
prima facie claim of selective prosecution:
              To support a [claim] of selective or discriminatory
              prosecution, a defendant bears the heavy burden of
              establishing, at least prima facie, (1) that, while others
              similarly situated have not generally been proceeded against
              because of conduct of the type forming the basis of the charge
              against him, he has been singled out for prosecution, and (2)
No. 13AP-816                                                                             5

              that the government's discriminatory selection of him for
              prosecution has been invidious or in bad faith, i.e., based
              upon such impermissible considerations as race, religion, or
              the desire to prevent his exercise of constitutional rights.

Id., quoting United States v. Berrios 501 F.2d 1207, 1211 (2d Cir.1974).
       {¶ 14} " 'A mere showing that another person similarly situated was not
prosecuted is not enough; a defendant must demonstrate actual discrimination due to
invidious motives or bad faith.' " Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 532
(1999), quoting State v. Freeman, 20 Ohio St.3d 55, 58 (1985).              "Absent some
demonstration of an invidious motive, [a] court will not presume intentional or
purposeful discrimination from a mere showing of different treatment." State v. Lamar,
95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 46, citing Freeman at 58.
       {¶ 15} A trial court is required to grant an evidentiary hearing if the defendant
demonstrates a "colorable entitlement" to a selective prosecution claim. State v. Wasmus,
10th Dist. No. 94APA07-1013 (Apr. 27, 1995). However, a "defendant is not entitled to an
evidentiary hearing on a selective prosecution defense unless he sets forth a prima facie
claim." State v. Powell, 4th Dist. No. 05CA3024, 2006-Ohio-5031, ¶ 23.            Both the
Supreme Court of Ohio and the United States Supreme Court have noted that the burden
in maintaining a selective prosecution claim is on the defendant as the prosecutor enjoys a
presumption that his actions were non-discriminatory in nature. State v. Keene, 81 Ohio
St.3d 646 (1998); United States v. Armstrong, 517 U.S. 456, 464 (1996). "The decision
whether to prosecute a criminal offense is generally left to the discretion of the
prosecutor." Lamar at ¶ 43, citing Armstrong at 464.
       {¶ 16} A complete review of the trial court record indicates appellant is unable to
provide clear evidence on either prong of the Flynt test to establish a prima facie claim of
selective prosecution. First, appellant has not provided any evidence that the prosecutor
failed to prosecute other similarly situated individuals for identical conduct. Second,
appellant offers no evidence demonstrating that the prosecution singled him out for
criminal charges because of his race or in any other way acted in bad faith or pursuant to
an "invidious motive."
No. 13AP-816                                                                              6

       {¶ 17} Accordingly, the trial court did not commit error in denying appellant's
motion to dismiss due to selective prosecution. We overrule appellant's first and fourth
assignments of error.
       B. Second and Third Assignments of Error: Fifth and Sixth
          Amendment Violations

       {¶ 18} Appellant's second and third assignments of error claim his Fifth and Sixth
Amendment rights were violated when he was interviewed at the prosecutor's office after
the prosecutor had found probable cause to file criminal charges against him.
       {¶ 19} On the morning of November 6, 2012, Assistant Prosecutor Melissa Hicks
found probable cause existed to file charges against appellant if his identity could be
verified. Later that day, appellant went to the Columbus City Prosecutor's Office to file a
criminal cross-complaint against Klacik. Hicks interviewed appellant, and, as a result, the
prosecutor's office identified appellant as the assailant in Klacik's criminal complaint filed
on October 25, 2012.
       {¶ 20} Appellant argues that the prosecutor's office violated his Fifth and Sixth
Amendment rights by "interrogating" him without the presence of an attorney,
interviewing him without first obtaining a waiver of legal representation, and by failing to
assign appellant's complaint to a special prosecutor.
       {¶ 21} The Fifth Amendment to the United States Constitution, applied to the
states pursuant to the Fourteenth Amendment, provides that no person "shall be
compelled in any criminal case to be a witness against himself." In order to protect this
right, a criminal suspect in a custodial interrogation must be informed of his
constitutional rights to remain silent and to have defense counsel. Miranda v. Arizona,
384 U.S. 436, 471 (1966).
       {¶ 22} "A custodial interrogation is questioning initiated by law enforcement after
a suspect has been formally arrested or had his freedom restrained in such a way that it is
the equivalent of a formal arrest." State v. Watkins, 10th Dist. No. 12AP-345, 2013-Ohio-
804, ¶ 27, citing California v. Beheler, 463 U.S. 1121, 1125 (1983). Further, a court must
examine the totality of the circumstances when determining how a reasonable person
would have understood the interrogation. Stansbury v. California, 511 U.S. 318, 323
(1994). The relevant inquiry is whether "a reasonable person in the individual's position
No. 13AP-816                                                                             7

would have believed that he or she was not free to leave given the totality of the
circumstances." State v. Simpson, 10th Dist. No. 01AP-757, 2002-Ohio-3717, ¶ 33, citing
Berkemer v. McCarty, 468 U.S. 420, 442 (1984).
       {¶ 23} The Sixth Amendment to the United States Constitution, applied to the
states pursuant to the Fourteenth Amendment, guarantees that in all criminal
prosecutions, the accused shall have the right to assistance of counsel for his defense.
State v. Wyche, 10th Dist. No. 01AP-361 (Jan. 22, 2002), citing McNeil v. Wisconsin, 501
U.S. 171 (1991).    However, the right to counsel does not attach until adversarial
proceedings commence by formal criminal charges, a preliminary hearing, an indictment,
information, or an arraignment. Wyche, citing Kirby v. Illinois, 406 U.S. 682, 689 (1972).
       {¶ 24} Here, appellant was not subjected to custodial interrogation.         Rather,
appellant voluntarily went to the prosecutor's office to file a complaint against Klacik.
Nothing prevented appellant from leaving the interview at any time, nor did appellant
produce any evidence demonstrating he believed he was not free to leave. Furthermore,
the state had not filed formal charges against appellant when he went to the prosecutor's
office; charges were filed on November 27, 2012. Because appellant was not subject to
custodial interrogation nor had formal charges been filed against him, his Fifth and Sixth
Amendment rights were not implicated.
       {¶ 25} Based on the foregoing, we overrule appellant's second and third
assignments of error.
       C. Fifth, Seventh, and Tenth Assignments of Error: Insufficient
          Evidence and Manifest Weight of the Evidence.

       {¶ 26} In his fifth assignment of error, appellant claims insufficient evidence
supported his convictions. Similarly, appellant's tenth assignment of error argues the trial
court's convictions were against the manifest weight of the evidence. Appellant's seventh
assignment of error argues that false testimony at trial was prejudicial and denied him a
fair trial. We find appellant's arguments unpersuasive.
       {¶ 27} When reviewing the lower court's record for sufficiency of the evidence, the
appellate court's relevant inquiry is whether the evidence presented, viewed in a light
most favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State v. Mahone, 10th Dist.
No. 13AP-816                                                                             8

No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, ¶ 37.
       {¶ 28} A manifest weight challenge requires this court to weigh the evidence to
determine whether 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. Cruz-Altunar, 10th Dist. No. 11AP-1114, 2012-Ohio-4833, ¶ 13, citing State v. Lang, 129
Ohio St.3d 512, 2011-Ohio-4215, ¶ 220. A court of appeals should only reverse a trial
court's conviction on manifest weight grounds in exceptional circumstances. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983).
       {¶ 29} Similar to an insufficient evidence challenge, when addressing a manifest
weight challenge the trier of fact is given great deference in our review. State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 26.          An appellate court may consider the
credibility of witnesses when conducting a manifest weight review. State v. Cattledge,
10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6.          However, "we are guided by the
presumption that the jury, or the trial court in a bench trial, 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
       {¶ 30} R.C. 2903.13(A) states, in part, "[n]o person shall knowingly cause or
attempt to cause physical harm to another." "A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist." R.C. 2901.22(B).
       {¶ 31} Further, Columbus City Code 2317.11(A)(1) states, in part, "No person shall
recklessly cause inconvenience, annoyance, or alarm to another, by * * * engaging in
fighting, in threatening harm to persons or property, or in violent or turbulent behavior."
       {¶ 32} At trial, appellant admitted he knowingly punched Klacik in the mouth with
his fist. Klacik testified appellant struck him in the face, causing damage to his tooth and
lip which required medical treatment. The state presented photographic evidence of the
No. 13AP-816                                                                               9

injuries. Furthermore, both of Klacik's roommates testified at trial and corroborated
Klacik's account of the incident.
          {¶ 33} In support of his manifest weight argument, appellant claims Klacik
testified untruthfully during the trial and that the other witnesses lied and "infringed
upon the integrity of the court." (Appellant's brief, at 45.) Specifically, appellant claims
that because Klacik could not recall the number of steps onto the DJ's stage, no part of his
testimony is credible.      Appellant further argues that because Klacik was untruthful
regarding whether he consumed any drinks prior to going to the bar, the court may not
consider any of his testimony.
          {¶ 34} This court has stated that where the basis for a manifest weight argument
lies in witnesses' conflicting testimony or the credibility of the witnesses, the court will
decline to substitute its own judgment for that of the trier of fact. Whitehall v. Ruckman,
10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 16.                 "While appellant asserts the
prosecution's witnesses were either lying or mistaken in their testimony, the * * * trier of
fact was in the best position to determine the credibility of the testimony presented." Id.
A trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson,
10th Dist. No. 01AP-973 (Mar. 19, 2002). See also State v. Raver, 10th Dist. No. 02AP-
604, 2003-Ohio-958, ¶ 21 (stating an appellant presenting a manifest-weight argument is
not entitled to a reversal merely because inconsistent evidence was presented at trial).
          {¶ 35} The trial court's written decisions specifically addressed the credibility of
the testifying witnesses. In its Entry and Order following appellant's trial, the court
stated:
                 As the trier of fact and the sole judge of the credibility of the
                 witnesses the Court applied an analysis of not only the
                 truthfulness of the witnesses but also the impact of the
                 instances when the witnesses were found to not be truthful.
                 There were issues on both sides of this case where a witness
                 was found not to be truthful. In this instance the lack of
                 truthfulness was found to be more substantive on the part of
                 the Defendant.

(R. 46, at 2.)
          {¶ 36} The trial court addressed the same concern in its denial of appellant's
motion for a new trial. The court's Entry and Order stated that in response to issues
No. 13AP-816                                                                             10

raised by appellant with respect to witness credibility and appellant's claim for defense of
property:
               [T]o ease [defense] counsel's misgivings the court will briefly
               give further explanation as to why the testimony of the
               defendant and witnesses support the finding of guilt.

               ***
               [D]efendant was not convincing in any testimony that he
               provided to attempt to convince the court that even he
               believed he or his equipment were in danger.

               ***
               As the trier-of-fact the court is not required to believe any one
               account. Rather the court can determine if all or parts of the
               testimony presented are worthy of reliability. The court
               acknowledged that the prosecuting witness was not truthful
               about his alcohol consumption however, that was ultimately a
               trivial issue in the consideration of the court particularly in
               light of the testimony of the other witnesses and the
               defendant.

(R. 56, at 1-2.)
       {¶ 37} This court, deferring to the trial court's evaluation of witness credibility,
finds the evidence presented at appellant's trial was sufficient to support the convictions,
the convictions were not against the manifest weight of the evidence, and the minor
inconsistencies did not prejudice appellant. Accordingly, we overrule appellant's fifth,
seventh, and tenth assignments of error.
       D. Assignments of Error Six, Eight, Nine, and Eleven: Self-Defense and
          Defense of Property

       {¶ 38} In assignments of error eight and nine, appellant argues the trial court
erred when it failed to apply the law of either self-defense or defense of property to the
facts presented at trial. Appellant also claims in his eleventh assignment of error, the trial
court's finding he did not act in self-defense was against the manifest weight of the
evidence. Finally, appellant argues in his sixth assignment of error that because the trial
court did not apply either self-defense or defense of property, he is entitled to a new trial.
This court disagrees with each argument.
No. 13AP-816                                                                           11

       {¶ 39} As we discussed in our resolution of appellant's tenth assignment of error, a
manifest weight challenge requires this court to weigh the evidence to determine whether
the trier of fact below clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. Cruz-Altunar at
¶ 13, citing Lang at ¶ 220. Further, a court of appeals should only reverse a trial court's
conviction on manifest-weight grounds in exceptional circumstances. Thompkins at 387,
quoting Martin at 175.
       1. Self-Defense and Defense of Property
       {¶ 40} The Supreme Court of Ohio has established that self-defense is an
affirmative defense and the burden of establishing the defense is on the defendant. State
v. Palmer, 80 Ohio St.3d 543, 563 (1997). To establish self-defense, appellant must
demonstrate that "(1) the accused was not at fault in creating the situation giving rise to
the affray; (2) the accused has 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
such force; and (3) the accused must not have violated any duty to retreat or avoid the
danger." State v. Gripper, 10th Dist. No. 12AP-396, 2013-Ohio-2740, ¶ 18, citing State v.
Melchior, 56 Ohio St.2d 15, 20-21 (1978). If appellant "fails to prove any one of these
elements by a preponderance of the evidence he has failed to demonstrate that he acted in
self-defense." (Emphasis sic.) State v. Jackson, 22 Ohio St.3d 281, 284 (1986).
       {¶ 41} Similarly, defense of property is also an affirmative defense that the
defendant must establish. State v. Perez, 7th Dist. No. 09 MA 30, 2010-Ohio-3168, ¶ 11.
One may act in self-defense, or in defense of property, at either the same time or in
succession. Columbus v. Eley, 10th Dist. No. 91AP-803 (Jan. 28, 1992). Under a defense
of property claim, a defendant must "present evidence that he reasonably believed that his
conduct was necessary to defend his property against the imminent use of unlawful force,
and the force used was not likely to cause death or great bodily harm." State v. Bruckner,
8th Dist. No. 63296 (Sept. 30, 1993), citing Columbus v. Dawson, 33 Ohio App.3d 141
(10th Dist.1986).
       {¶ 42} Appellant argues he punched Klacik because appellant believed Klacik was
about to strike him, thereby creating an imminent fear of great bodily harm.
Furthermore, appellant argues he was concerned that Klacik would harm his expensive
No. 13AP-816                                                                                  12

DJ equipment. The trial court considered each of these arguments, as discussed below,
and determined appellant's testimony did not establish the requisite belief to support
either claim.
       {¶ 43} Appellant's argument that the trial court's guilty verdict was against the
manifest weight of the evidence is unavailing. The state provided three witnesses who
each stated that prior to appellant striking Klacik, appellant turned the music down or off,
informed the crowd that Klacik had to the count of three leave the DJ's stage, and then
proceeded to punch Klacik in the face after appellant performed the countdown.
       {¶ 44} Additionally, security personnel were present at the bar but appellant did
not call security to the stage during the incident with Klacik, a fact that would refute any
argument that appellant believed he was in imminent danger of death or great bodily
harm. To the contrary, appellant took the time to turn down the music, get on the
microphone, and address the crowd. Appellant clearly demonstrated he did not consider
himself to be in imminent danger.
       {¶ 45} Based on this testimony, the trial court, as the trier of fact, did not find
appellant demonstrated, by a preponderance of the evidence, that he actually believed he
was in imminent danger of bodily harm.
       {¶ 46} Additionally, in its written decision, the trial court determined that "[e]ven
if the Court were to solely take the [appellant's] testimony into account, the Court does
not find that the [appellant] has proven that he was not at fault in creating the situation
giving rise to the assault." (R. 46, at 2.) Relying on the testimony presented, the trial
court found appellant joked with Klacik in an "insulting manner," "publically
humiliate[d]" Klacik instead of alerting security, and made "derogatory statements" at
Klacik's expense. (R. 56, at 1.) By his own admission, appellant got on the microphone
and addressed the audience in an attempt to make a joke at Klacik's expense.
       {¶ 47} Further, the trial court found appellant's testimony regarding his defense of
property claim and his alleged concern for his equipment "failed to conclusively prove
that there was anything reasonable about a belief of that nature." (R. 56, at 1.) After a
review of the entire record, we do not find the trial court, as the trier of fact, clearly lost its
way, creating a manifest miscarriage of justice.
No. 13AP-816                                                                             13

       2. Motion for New Trial
       {¶ 48} The appellant further argues that as a result of the trial court failing to
recognize his affirmative defenses, the trial court erred when it denied his motion for a
new trial. Specifically, appellant argues minor inconsistencies in the trial testimony
dictate the court should not accord any probative weight to the testimony of the state's
witnesses. We do not agree with appellant's argument.
       {¶ 49} The decision to grant or deny a motion for a new trial rests in the sound
discretion of a trial court. State v. Lei, 10th Dist. No. 05AP-288, 2006-Ohio-2608, ¶ 19,
citing State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the syllabus. The trial
court has the discretion to judge witness credibility when it considers testimony in a
motion for a new trial. Lei at ¶ 19, citing State v. Kirkland, 10th Dist. No. 97AP-873 (Apr.
9, 1998). Accordingly, an appellate court will not "disturb the decision of a trial court on a
motion for a new trial absent an abuse of discretion." Id. Abuse of discretion is more
than an error of either law or judgment, and, instead, "implies that the court's attitude is
unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983). This court has described the decision to grant a motion for a new trial as an
"extraordinary measure" that is appropriate only when "the evidence presented weighs
heavily against conviction." State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639,
¶ 35 (10th Dist.), citing State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
       {¶ 50} As discussed thoroughly above, the trial court's verdict was supported by
sufficient evidence and is not contrary to law. The court, as the trier of fact, expressly
found the state's witnesses' testimony credible. Specifically, each of the state's witnesses
testified appellant counted down over the microphone prior to striking Klacik. Based on
the testimony, the court concluded appellant was not in fear of imminent danger to
himself or his equipment, and, therefore, neither self-defense nor defense of property
applied.
       {¶ 51} The trial court's conviction was not against the manifest weight of the
evidence, the trial court correctly found that neither self-defense nor defense of property
applied, and the trial court did not abuse its discretion in denying appellant's motion for a
new trial. Accordingly, appellant's assignments of error six, eight, nine, and eleven are
overruled.
No. 13AP-816                                                                 14

IV. Conclusion
      {¶ 52} We overrule appellant's eleven assignments of error and affirm the
judgment of the Franklin County Municipal Court.
                                                               Judgment affirmed.

                       SADLER, P.J., and CONNOR, J., concur.
