[Cite as State v. Tabasso, 2012-Ohio-5747.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 98248



                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                JUSTIN A. TABASSO
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-554082

        BEFORE: Boyle, P.J., Jones, J., and Keough, J.
       RELEASED AND JOURNALIZED:                           December 6, 2012

ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Heights, Ohio 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Sheila Turner-McCall
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Justin Tabasso, appeals his felonious assault conviction.

He raises two assignments of error for our review:

       [1.] The conviction was against the manifest weight of the evidence.

       [2.] Trial counsel was ineffective in that he did not request an instruction on

       self-defense, as it was appropriate in this case.
        {¶2} Finding no merit to his appeal, we affirm.

                          Procedural History and Factual Background

        {¶3} In September 2011, Tabasso was indicted on one count of felonious assault, a

second degree felony, in violation of R.C. 2903.11(A)(1).     The indictment arose out of

allegations that Tabasso physically assaulted Nicholas Martaus on July 18, 2011.     The

following facts were presented to the jury.

        {¶4} Martaus testified that he and Amanda Shea dated off and on

from March 2009 to June 2011. At some point in 2011, Shea began dating

Tabasso as well.          Martaus said that he and Shea finally ended their

relationship in June 2011, but said that he and Shea remained friends.

        {¶5} Shea called Martaus at 4:30 a.m. on July 18, 2011, and told him

that she was outside of his apartment.               Martaus went outside to talk to

Shea.     The two sat on Martaus’s front steps and talked.              Martaus heard

Shea say something to someone who was behind him, but before he could

even turn around to see who it was, the person began hitting Martaus.

Martaus realized that it was Tabasso who was hitting him. Martaus said

Tabasso held him by his hair and hit him repeatedly in his face. At some

point, Tabasso stopped punching Martaus and began to kick him and “stomp

on him.” Martaus heard Shea scream, “[g]et off of him, Justin.” Martaus

stated that Tabasso kept asking him, “why don’t you respect me.”
       {¶6} Martaus rolled away from Tabasso and grabbed his cell phone to

call 911. At that point, Shea fled and Tabasso followed her. In Martaus’s call

to 911, Martaus told the operator that he had just been jumped outside of his house by “Justin

Tabasso.”    Martaus was transported to the hospital by paramedics.

       {¶7} Martaus testified that as a result of the beating, his ribs, skull, and jaw were

fractured, and his “sinus ruptured.”    He identified several photos of himself that had been

taken after the fight.   The photos show bruises, cuts, and red marks all over Martaus’s face,

torso, and back.    The photos further show where Martaus’s hair had been pulled out and

where one of his front teeth had been knocked out.

       {¶8} Shea testified that at the time of trial Tabasso was her boyfriend.    Shea did not

consider herself and Martaus to be friends in July 2011 when the fight occurred.     She stated

that she went over to Martaus’s house at 4:30 a.m. after she got off work because he had been

bugging her to talk to him and that was the only time that she could find to do it.       Shea

explained that she planned to tell him to stop texting and calling her.

       {¶9} Shea testified that when she saw Tabasso walking up to Martaus’s front steps,

she got nervous and asked Tabasso what he was doing there.       Shea “got up and grabbed [her]

stuff and * * * ran to [her] car.”   She could hear Martaus and Tabasso yelling.      After she

got in her car, she could see Martaus and Tabasso fighting.       She said that she saw Martaus

punch Tabasso, but she did not see Tabasso hit Martaus.       As she was leaving, she saw them
wrestling on the ground.     Shea said that she went to Tabasso’s house to get her belongings.

After she left Tabasso’s, she went to the hospital to see Martaus.

         {¶10} Shea testified that she did not want to give a statement to police because she did

not want to be in the middle of Tabasso and Martaus.      Shea said that Tabasso did not have a

problem with her and Martaus being friends.

         {¶11} Officer Thomas Smith testified that he responded to the scene.       He could tell

from Martaus’s appearance that he had just been in a fight.     He learned from Martaus that he

had just been beaten up by his ex-girlfriend’s new boyfriend.        Martaus gave him Shea’s and

Tabasso’s names.

         {¶12} Detective Jeanie Joyce testified that she interviewed Martaus the day after the

fight.   Martaus told Detective Joyce the same story that he gave in court.      Detective Joyce

took the photos of Martaus’s injuries when she interviewed him, which was one day after the

fight.

         {¶13} Detective Joyce testified that she interviewed Shea as well.      Detective Joyce

explained that it was very clear to her that Shea did not want to cooperate with her.      In the

statement that Shea gave to Detective Joyce, Shea stated that Tabasso hated the fact that “Nick

and I still talk and hang out,” but said that she told Tabasso, “we are friends and there is

nothing he can do about it.”       Shea told Detective Joyce that when Tabasso appeared at

Martaus’s house, she saw that Tabasso and Martaus “were in each other’s faces,” and she took
off running down the street.     In her statement, Shea denied that she ever saw Tabasso hit

Martaus.    She told Detective Joyce that after she left, she went to “[Tabasso’s] house to get

her things,” and that “she never wanted to see him again.”        Shea stated that after she left

Tabasso’s house, she went to the hospital “because [she] wanted to make sure that [Martaus]

was o.k.”   Detective Joyce believed that Shea was holding back information from her.

       {¶14} The jury found Tabasso guilty of felonious assault as charged.       The trial court

sentenced him to two years in prison, and then stated, “I’m going to suspend the sentence and

place him on five years probation, but he’s going to do 90 days in the Cuyahoga County jail

starting right now.”   The trial court further ordered that Tabasso pay $13,427 for medical

bills and $4,800 for lost wages in restitution to Martaus.

                                Manifest Weight of the Evidence

       {¶15} In his first assignment of error, Tabasso argues that his conviction was against

the manifest weight of the evidence.

       { ¶ 16} In reviewing a claim challenging the manifest weight of the

evidence,

       [t]he question to be answered is whether there is substantial
       evidence upon which a jury could reasonably conclude that all the
       elements have been proved beyond a reasonable doubt. In
       conducting this review, we must examine the entire record, weigh
       the evidence and all reasonable inferences, consider the
       credibility of the witnesses, and determine whether the jury
       clearly lost its way and created such a manifest miscarriage of
        justice that the conviction must be reversed and a new trial
        ordered.

(Internal quotes and citations omitted.) State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

        {¶17} Tabasso maintains that his conviction was against the manifest weight of the

evidence because Shea’s testimony contradicted Martaus’s testimony.         Due to “circumstances

of conflicting stories and a lack of credibility,” Tabasso contends that his convictions should

be overturned.

        {¶18} Under well-settled precedent, we are constrained to adhere to the principle that

the credibility of witnesses and the weight to be given to their testimony are matters for the

trier of fact to resolve.   See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

 Here, the jury heard all of the testimony and was free to believe Martaus over Shea.

Further, other evidence supported Martaus’s version of the events, including Martaus’s 911

call, Officer Smith’s testimony, and Detective Joyce’s testimony.       Based on the record before

us, we cannot say that the trier of fact clearly lost its way.       Accordingly, we find that the

conviction is not against the manifest weight of the evidence and, therefore, overrule

Tabasso’s first assignment of error.

                                 Ineffective Assistance of Counsel
       {¶19} In his second assignment of error, Tabasso maintains that his trial counsel was

ineffective for failing to request a jury instruction on self-defense because after the “only

eye-witness testified, it became crystal clear that Justin Tabasso had no choice but to use

self-defense.”

       {¶20} To establish ineffective assistance of counsel, a defendant must

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

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

reasonable probability that but for counsel’s errors, the proceeding’s result

would have been different. Strickland v. Washington, 466 U.S. 668, 687-688,

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. There

is a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and that strategy and tactical decisions

exercised by defense counsel are well within the range of professionally

reasonable judgment. Strickland at 699.

       {¶21} Self-defense is an affirmative defense, and thus, the accused has the burden to

prove it by a preponderance of the evidence. State v. Smith, 10th Dist. No. 04AP-189,

2004-Ohio-6608, ¶ 16.       To establish self-defense through the use of deadly force,

defendants must prove (1) they were not at fault in creating the situation giving rise to the
affray, (2) they had a bonafide belief that they were in imminent danger of death or great

bodily harm and their only means of escape from such danger was the use of such force, and

(3) they must not have violated any duty to retreat or avoid the danger. State v. Robbins, 58

Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.        The trial court, as a

matter of law, cannot give a jury instruction on an affirmative defense if a defendant fails to

meet this burden. State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319 (1979), fn. 5.

       {¶22} Here, Tabasso called no witnesses, nor did he take the stand in his own defense.

 After reviewing the record, we conclude that Tabasso cannot even satisfy the first prong, i.e.,

he did not establish that he was not at fault in creating the situation.       Tabasso went to

Martaus’s house at 4:30 a.m.     Martaus testified that Tabasso began hitting him before he

could even turn around to see who Shea was talking to.

       {¶23} Assuming for the sake of argument that Shea was telling the truth about seeing

Martaus hit Tabasso, that was not until after she was already in her car.   Thus, she still would

have been running to her car at that point when the fight began and would not have seen who

threw the first punch.   This is not sufficient to overcome Martaus’s testimony that Tabasso

hit him before he could even turn around to see who it was.

       {¶24} Further, no evidence was produced at trial to show that Tabasso believed he was

in imminent danger of death or great bodily harm that mandated the use of force to escape

danger.   Again, Shea’s testimony that she saw Martaus hit Tabasso is not enough to
affirmatively establish that Tabasso truly believed he was in imminent danger.    Finally, there

was absolutely no evidence presented to show that Tabasso had no means of escape.

       {¶25} After reviewing the record, we conclude that Tabasso failed to meet his burden

to show evidence of possible self-defense.    Having failed to meet this burden, the trial court

had no basis to give an instruction on self-defense even if Tabasso’s counsel had requested it.

Accordingly, Tabasso’s counsel’s performance was not deficient.

       {¶26} Tabasso’s second assignment of error is overruled.

       {¶27} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
