[Cite as In re N.S., 2016-Ohio-492.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102801




                                        IN RE: N.S.
                                       A Minor Child




                                       JUDGMENT:
                                        AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. DL-14-115192

        BEFORE: Kilbane, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                 February 11, 2016
ATTORNEY FOR APPELLANT

Stephanie L. Lingle
1360 East 9th Street
Suite 910
Cleveland, Ohio 44114



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Hannah M. Smith
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

Also listed:

Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Ave
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:

       {¶1} Appellant, N.S. (“N.S.”), appeals from the judgment of the Cuyahoga

County Common Pleas Court, Juvenile Division, that adjudicated him delinquent in

connection with a charge of felonious assault.       Having reviewed the record and the

controlling case law, we affirm.

       {¶2} N.S. was charged with one count of felonious assault, in violation of R.C.

2903.11.   The charge is in connection with an alleged attack on T.T. (“T.T.”), a fellow

student, who was an adult at the time of the incident. N.S. denied the charge, and the

matter proceeded to trial over several days from February 17, 2015 to March 5, 2015.

       {¶3} T.T. testified that in late November 2014, he heard that N.S. had been

talking about him. T.T. and another friend decided to confront N.S. and one of N.S.’s

friends over the rumors. As a result of this confrontation, N.S. said that he wanted to

“work,” i.e., fight.   The two teens then had a brief fight at a nearby gas station.    T.T.

admitted that he had been suspended following this fight, and he then threatened to shoot

N.S. and “shoot up his house.” T.T. also admitted that he had previously been the victim

of a gunshot.

       {¶4} T.T. further testified that, after the fight with N.S. at the gas station, he was

suspended a second time for an incident where he confronted N.S. outside of a classroom.

 A week or two later, T.T. again heard through friends that N.S. wanted to fight him. At
that point, T.T. decided that he had been disrespected and that they had to fight for the

third time.

         {¶5} The two continued their dispute through social media and text messages.

In a text message dated December 6, 2014, T.T. indicated that if N.S. stabs him, he would

shoot N.S., but T.T. insisted that he did not actually have a gun. In another exchange,

T.T. continued to threaten N.S. that he would “f * * * him up, and beat his ass.” T.T.

also taunted N.S. for not having a gun, and N.S. replied, “why waste bullets on [me].”

In response, T.T. texted, “you really about to get killed,” and “can’t nobody save you this

time.”    To that, N.S. replied, “u wanna kill me that’s cool.   I had a good life.”   As the

exchanges continued, N.S. said, “lemme go about my life. N * * * * ain’t trying to beef

with you sir.” T.T. continued that he would “drop” N.S. in 30 seconds, and called N.S.

weak.     In response to this, N.S. said, “yeah I’m weak that’s why I don’t fight.     I ain’t

trying to work [fight] and you are about to paralyze me but if you got to prove something

to yourself tough guy you do that.” T.T. concluded by threatening to beat N.S. “to

death.”    Ultimately, N.S. indicated that he would fight T.T. at the same gas station where

they had previously fought.

         {¶6} During the school day on December 8, 2014, one of the teachers became

aware of the ongoing dispute and had the two speak with the school security officer.

T.T. and N.S. were both searched for weapons and then dismissed from school. T.T.

called family members to pick him up but could not get a ride home. He testified that he

waited approximately 15 minutes after N.S. left the building, before deciding to walk to
the gas station where they had previously fought. The school surveillance video showed

that he left the building four minutes after N.S., however. T.T. testified that he asked

N.S. if he still wanted to fight, and N.S. said that he does not fight, but instead stabs

people, then ran at T.T., attacking him with a large knife.    T.T. testified that N.S. slashed

him on his shoulder and arm and cut his leg. T.T. bit N.S. on the shoulder in order to get

away. T.T. denied instigating the fight, but he admitted that he grabbed N.S.’s cell

phone.

         {¶7} Bedford police detective Buck Kidd (“Detective Kidd”) responded to the

scene.    T.T. was still at the scene, but N.S. fled before the police arrived.      T.T. was

transported to the hospital by ambulance.      Detective Kidd and Bedford police officer

John Lobenthal (“Officer Lobenthal”) testified that they responded to N.S.’s house, and

N.S. immediately surrendered. According to Detective Kidd, N.S. admitted that he had

the knife in the morning before the assault, and hid it near the gas station along his route

home, in the event that he needed it during a fight with T.T. After the attack, N.S. hid it

in his backyard.   N.S. produced the knife for the officers.

         {¶8} At the close of the state’s case, N.S. moved for a judgment of acquittal.

The trial court denied the motion and N.S. presented testimony from Bedford police

officer Paul Kellerman (“Officer Kellerman”).       Officer Kellerman testified that during

his investigation of the incident, he learned that T.T. pushed N.S. a number of times and

took N.S.’s phone before N.S. finally retaliated.
       {¶9} D.P., another classmate of N.S., testified that after T.T. and N.S. were

suspended, T.T. followed N.S. and tried to catch up with him in order to fight with him.

T.T. eventually caught up with N.S., but N.S. said that he did not want to fight.

According to D.P., T.T. kept “messing with” N.S., pushed him, and took his cell phone.

They began to tussle as N.S. tried to get the phone back.   N.S. then reached for the knife

that was on the ground. T.T. continued to come at N.S. and “mess with him.” In

response, N.S. told T.T. to chill out. T.T. bit N.S., and N.S. cut T.T. then fled. D.P.

admitted that T.T. did not have a weapon and did not threaten to shoot N.S. at the time of

this fight.

       {¶10} N.S. testified that his problems with T.T. began at the start of the school

year when he developed a crush on B.J., who he later learned was T.T.’s girlfriend.   N.S.

subsequently ended the friendship, but B.J. became angry that N.S. was not speaking with

her, so during class in November, she pushed him off a desk. At that point, N.S. called

her a “stupid bitch,” and T.T. confronted N.S. over this insult and repeatedly threatened

N.S. A few days later, T.T. was waiting for him outside of one of his classes. T.T.

threatened him and had to be restrained by a teacher.   The two met with the principal to

mediate their dispute, then were both sent home for the day.

       {¶11} Following that meeting with the principal, T.T. sent N.S. a series of

threatening messages. N.S. brought the matter to the attention of his mother, who said

that she would discuss the matter with the principal. His mother also had N.S. stay in

the house over the weekend in order to prevent him from being victimized.             N.S.
testified that because he had seen T.T. with a gun during a football game, and had also

seen Instagram photos of him with a gun, he became very frightened.

       {¶12} On the following Monday morning, N.S. went to the principal’s office to

report the social media threats he had received from T.T., but T.T. spotted N.S. coming

out of the office and became infuriated.   During that day, T.T. attempted to come at him.

 Later in the day, the two spoke with the security officer and were sent home.    N.S. was

permitted to stop at the cafeteria first so that the two would not leave at the same time.

When N.S. signed out to leave, he notice that T.T., who had signed out earlier, was still in

the building. N.S. stopped briefly at the gas station then continued home on his usual

route, but he noticed that T.T., who does not live near him, was following him. As N.S.

continued home, he next observed T.T. coming at him. N.S. testified that he had hidden

his father’s knife along the route home, in case there was trouble, and hid it in his

sweatshirt. As he continued on, he observed T.T. and D.P. approaching. T.T. was

yelling and wanted to fight, and grabbed N.S. by the shoulder, flinging him around.

N.S.’s cell phone fell out of his pocket and T.T. grabbed it. N.S. got the phone back and

T.T. grabbed him in a bear hug and bit his shoulder. At that point, N.S. testified that he

grabbed his knife and stuck T.T. in the leg.

       {¶13} On March 19, 2015, the trial court found N.S. delinquent as charged. The

court ordered him to serve 12 months of detention, which the court suspended, and to

complete 30 hours of community service and 3 months of low risk community control

sanctions. The court noted that N.S. is “not a bad kid,” and had tremendous family
support. The court explained that it understood that N.S. had been bullied, but it noted

that chaos would ensue if everyone responded to threats in the manner that N.S. had

responded.

       {¶14} N.S. now appeals and assigns the following sole assignment of error for our

review:

                                   Assignment of Error

       The trial court’s failure to find that N.S. acted in self-defense was against
       the manifest weight of the evidence.

       {¶15} Within this assignment of error, N.S. argues that the manifest weight of the

evidence presented at trial demonstrates that he met his burden of showing that he acted

in self-defense, because he established by a preponderance of the evidence that he was

not at fault in creating the violent situation, he had a bona fide belief that he was in

imminent danger of death or bodily harm, and he did all that he could to retreat and avoid

the danger.

       {¶16} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

       The criminal manifest-weight-of-the-evidence standard was explained in
       State v. Thompkins (1997), 78 Ohio St.3d 380, 1997- Ohio-52, 678 N.E.2d
       541. In Thompkins, the court distinguished between sufficiency of the
       evidence and manifest weight of the evidence, finding that these concepts
       differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
       The court held that sufficiency of the evidence is a test of adequacy as to
       whether the evidence is legally sufficient to support a verdict as a matter of
       law, but weight of the evidence addresses the evidence’s effect of inducing
       belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
       asks whose evidence is more persuasive — the state’s or the defendant’s?
       * * * “When a court of appeals reverses a judgment of a trial court on the
       basis that the verdict is against the weight of the evidence, the appellate
       court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
       resolution of the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing
       Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

       {¶17} In addition, an appellate court may not merely substitute its view for that of

the factfinder, but must find that “‘in resolving conflicts in the evidence, the factfinder

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

must be reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172,485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest

weight grounds is reserved for “‘the exceptional case in which the evidence weighs

heavily against the conviction.’”    Id., quoting Martin.    In addition, this court must

remain mindful that the weight to be given the evidence and the credibility of the

witnesses are matters left primarily to the factfinder. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). Reversing an adjudication on the manifest weight of the

evidence requires the unanimous concurrence of all three appellate judges. Thompkins at

paragraph four of the syllabus.

       {¶18} In this matter, N.S. was adjudicated delinquent in connection with a charge

of felonious assault. R.C. 2903.11 defines this offense as follows:

       No person shall knowingly do either of the following:

       (1)    Cause serious physical harm to another   * * *;

       (2)    Cause or attempt to cause physical harm to another * * * by means of
              a deadly weapon or dangerous ordnance.
       {¶19} R.C. 2901.05 governs affirmative defenses and places the burden of going

forward with the evidence and the burden of proof, by a preponderance of the evidence,

upon the accused.       In order to establish a self-defense claim, the defendant must

demonstrate by a preponderance of the evidence that: (1) he was not at fault in creating

the situation giving rise to the affray; (2) he had a bona fide belief that he was in

imminent danger of great bodily harm and that his only means of escape from such

danger was in the use of such force; and (3) he must not have violated any duty to retreat

or avoid danger. State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990); see

also State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the

syllabus.   The elements of self-defense are cumulative and “‘[i]f the defendant 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.’” Williford, quoting State v. Jackson, 22 Ohio

St.3d 281, 284, 490 N.E.2d 893 (1986).

       {¶20} The amount of force used in self-defense, however, must be reasonable.

State v. Fox, 36 Ohio App.3d 78, 79, 520 N.E.2d 1390 (9th Dist.1987). That is, “‘one

may use such force as the circumstances require in order to defend against danger that one

has good reason to apprehend.’” Id., quoting State v. McLeod, 82 Ohio App. 155, 157, 80

N.E.2d 699 (9th Dist.1948); see also Akron v. Dokes, 31 Ohio App.3d 24, 25, 507 N.E.2d

1158 (9th Dist.1986).    Where one uses a greater degree of force than is necessary under

all the circumstances, it is not justifiable on the grounds of self-defense.   See State v.

Jackson, 10th Dist. Franklin No. 00AP-444, 2000 Ohio App. LEXIS 5808 (Dec. 14,
2000), citing McLeod.     The issue of whether a defendant used unreasonable force in

repelling a perceived danger is a question of fact for the finder of fact. Jackson, citing

State v. Deans, 10th Dist. Franklin No. 98AP-1463, 1999 Ohio App. LEXIS 4602 (Sept.

30,1999).

       {¶21}   After a careful consideration of the record in its entirety, we find that the

manifest weight of the evidence clearly demonstrates that N.S. was not primarily at fault

in creating the situation giving rise to the affray.       With regard to whether N.S.

demonstrated by a preponderance of the evidence that he had a bona fide belief that he

was in imminent danger of great bodily harm and that his only means of escape from such

danger was the use of force, the trial court was free to believe or disbelieve all or any of

the testimony presented on these remaining issues.          State v. Montanez, 8th Dist.

Cuyahoga No. 100013, 2014-Ohio-1723, ¶ 46, citing State v. Matthews, 10th Dist.

Franklin No. 11AP-532, 2012-Ohio-1154, and State v. Jackson, 10th Dist. Franklin

No. 01AP-973, 2002-Ohio-1257.        Under the totality of the circumstances presented

herein, we are unable to conclude that the trial court lost its way in concluding that N.S.

failed to establish the remaining elements of self-defense by the requisite degree of

evidence.

       {¶22} With regard to whether N.S. had a bona fide belief that he was in imminent

danger of great bodily harm from T.T., the record demonstrates that T.T. repeatedly

threatened N.S., while N.S. repeatedly attempted to defuse the situation. As noted by the

trial court, T.T. was not simply an innocent bystander. Nonetheless, the record does
contain evidence that N.S. ultimately agreed to fight T.T. at the gas station near school.

When the actual confrontation resulted, T.T. was not armed. He grabbed and bit N.S.,

but the confrontation did not present the threat of great bodily harm.              Moreover, by

attacking T.T. with a knife, N.S. used a far greater degree of force than was necessary

under the circumstances.     In addition, N.S. had other means of escape besides the use of

a deadly weapon, and had the ability to flee the scene at that point.               Based on the

foregoing, the manifest weight of the evidence demonstrates that N.S. exceeded the scope

of any self-defense privilege he may have had in this matter, and also failed to retreat

from the situation.

       {¶23}    Because the trial court was in the best position to determine the credibility

of each witness by taking into account inconsistencies, as well as the manner and

demeanor of the witnesses, we cannot conclude that this record presents a scenario where

the trier of fact clearly lost its way in rejecting N.S.’s claim of self-defense.

       {¶24} The assignment of error is overruled.

       {¶25} Judgment is 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, juvenile division, to carry this judgment into execution. The adjudication of

delinquency having been affirmed, any bail or stay of execution pending appeal is

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
