[Cite as State v. Suarez, 2011-Ohio-1438.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 10CA0008

vs.                                               :    T.C. CASE NO. 09CRB2004

DAVID M. SUAREZ                                    :   (Criminal Appeal from
                                                        Municipal Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                    Rendered on the 25th day of March, 2011.

                                       . . . . . . . . .

Betsy A. Deeds, Atty. Reg. No.0076747, Asst. Pros. Attorney, 510
West Main Street, Fairborn, OH 45324
     Attorney for Plaintiff-Appellee

Jessica R. Moss, Atty. Reg. No.0085437, P.O. Box 341148, Dayton,
OH 45434
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, David M. Suarez, appeals from his conviction

for assault, R.C. 2903.13(A), and the one hundred and eighty-day

jail term and one hundred dollar fine imposed for that first degree

misdemeanor offense.
                                                                          2

       {¶ 2} The events from which Defendant’s conviction arose

occurred on May 27, 2009, at Defendant’s home in Fairborn.       A number

of people had gathered there for a party and consumed alcohol.

One    of   them,   Andrew   Rowe,   became   upset   when   another    man

inappropriately touched a female, who was Rowe’s girlfriend.           Rowe

yelled at those present, and when he was then made to leave was

assaulted by several of the other men.

       {¶ 3} Most of those present, including Defendant, fled after

the assault, which left Rowe bleeding and unconscious on the

basement floor.       Police and medics were called, and Rowe was

transported     to a hospital.       Rowe suffered a concussion, a cut

lip, and significant bruising and swelling to his face.                 The

injuries required stitches to close wounds to his lip and left

eye.

       {¶ 4} Defendant Suarez was charged by a complaint filed in

Fairborn Municipal Court with assault.           R.C. 2903.13(A).       The

charge was tried to a jury.     Defendant and his witnesses testified

that Rowe was very intoxicated and became upset when he witnessed

the event involving his girlfriend.           Defendant then asked Rowe

to leave.      Rowe went upstairs, briefly, but returned to the

basement and threatened to fight everyone there.        Rowe and another

man began to fight, at which time Defendant left his home.

Defendant denied ever hitting or using force against Rowe.
                                                                    3

     {¶ 5} The State’s witnesses testified that Rowe was attacked

and severely beaten by three men, including Defendant Suarez.

Christy Combs testified that Defendant struck Rowe in the face

several times.   Sidney Bunnow testified that Defendant hit Rowe

several times.   Lauren Smith, a friend of Defendant’s, testified

that Defendant hit Rowe twice.

     {¶ 6} The jury found Rowe guilty of assault and he was convicted

and sentenced pursuant to law.        Defendant appeals from his

conviction, presenting two assignments of error for our review.

     FIRST ASSIGNMENT OF ERROR

     {¶ 7} “THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY

ON THE CASTLE DOCTRINE.”

     {¶ 8} The trial court must give all instructions that are

relevant and necessary for the jury to weigh the evidence and

discharge its duty as the fact finder.      State v. Comen (1990),

50 Ohio St.3d 206.     The court must correctly instruct on the

elements of the offense charged and all defenses raised by the

evidence.   State v. Williford (1990) 49 Ohio St.3d 247.

     {¶ 9} Crim.R. 30 provides that “any party may file written

requests that the court instruct the jury on the law as set forth

in the requests.”     If a defendant has properly requested a

particular instruction, in accordance with Crim.R. 30, the court

errs if it fails to include the substance of the written instruction
                                                                     4

in its charge to the jury.      State v. Comen.

     {¶ 10} Self-defense is an affirmative defense which, if proved,

relieves a defendant of criminal liability for force the defendant

used.     “The burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance

of the evidence, for an affirmative defense, is upon the accused.”

 R.C. 2901.05(A).

     {¶ 11} R.C. 2901.09(B) codifies a form of self-defense known

as the “Castle Doctrine,” and provides:

     {¶ 12} “For purposes of any section of the Revised Code that

sets forth a criminal offense, a person who lawfully is in that

person’s residence has no duty to retreat before using force in

self-defense, defense of another, or defense of that person’s

residence, and a person who lawfully is an occupant of that person’s

vehicle or who lawfully is an occupant in a vehicle owned by an

immediate family member of the person has no duty to retreat before

using force in self-defense or defense of another.”

        {¶ 13} Following the court’s general instructions to the jury,

and before the jury retired, Defendant requested the court to give

the following additional instruction: “But if you find the

Defendant used only such force as was reasonably necessary to remove

Mr. Rowe from the premises . . ., you must find the Defendant not

guilty . . . , (and in) [m]aking this determination, you may not
                                                                             5

attribute the force used by others”         to the Defendant. (Tr. 253).

 When the court asked Defendant’s counsel for the reason for the

request, counsel stated:

     {¶ 14} “There was some testimony that he had the authority,

since he was residing there, although he was not on the lease,

and I think it was Lindsey that testified to that, that he had

authority to remove people.      He had attempted – he had orally told

the man several times, and I think it was Lauren testified that

maybe he punched him, and maybe he pushed him, and this was towards

the area which had the corner and the staircase.”

     {¶ 15} The trial court has discretion to give or refuse to give

additional instructions a party requests.              Rice v. City of

Cleveland (1944), 144 Ohio St. 299.       We may not reverse a conviction

for the court’s refusal to give a requested additional instruction

absent an abuse of discretion.            An abuse of discretion is an

attitude that is unreasonable, arbitrary, or unconscionable.

Huffman v. Hair Surgeon, Inc.         (1985), 19 Ohio St.3d 83.

     {¶ 16} The trial court denied Defendant’s request for an

additional      instruction     on   self-defense    authorized    by     R.C.

2901.09(B).    We find no abuse of discretion.

     {¶ 17} R.C.   2901.09(B)    exempts    an   accused   from    criminal

liability     arising   from    conduct    involved    “using     force     in

self-defense” in certain circumstances.             Being an affirmative
                                                                             6

defense, the burden of proving a particular claim of self-defense

is on the accused.        R.C. 2901.05(A).       If the conduct in which the

accused engaged involved no use of force, then R.C. 2901.09(B)

has no application.

     {¶ 18} Defendant’s own testimony, supported by the other

evidence he offered, was that he did not participate in the assault

on Rowe.   Implicit in that claim is the contention that Defendant

used no force at all.

     {¶ 19} The State’s evidence demonstrated that Defendant used

force against Rowe.             However, on this record, it would be

inconsistent with the burden of proof that R.C. 2901.05(A) places

on an accused to permit Defendant to rely on the State’s evidence

to claim self-defense when he denied that he used any force at

all, and when the State’s evidence presents no basis to find that

Defendant lawfully used force to protect himself, his home, or

another.        R.C.   2901.09(B).       The   trial   court   did   not   act

unreasonably when it overruled Defendant’s request to give the

additional instruction.

     {¶ 20} Defendant’s first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 21} “THE APPELLANT’S CONVICTION FOR ASSAULT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

     {¶ 22} A    weight    of   the   evidence    argument   challenges    the
                                                                            7

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.    State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563.    The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

      {¶ 23} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”       Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.

      {¶ 24} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.     State v. DeHass (1967), 10 Ohio St.2d 230.             In State

v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 25} “Because the factfinder . . . has the opportunity to

see   and   hear   the   witnesses,   the   cautious     exercise    of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial     deference    be   extended    to   the     fact     finder’s

determinations of credibility.        The decision whether, and to what

extent, to credit the testimony of particular witnesses is within
                                                                 8

the peculiar competence of the fact finder, who has seen and heard

the witness.”

     {¶ 26} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict.     State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

     {¶ 27} Defendant argues that his conviction for assault in

violation of R.C. 2903.13, knowingly causing physical harm to

another, is against the manifest weight of evidence because the

weight of the testimony presented by Defendant and his witnesses

is such that the jury clearly lost its way in rendering a guilty

verdict.   Defendant points out that he testified at trial that

he tried to calm Rowe down and prevent him from getting into a

fight with other people, Defendant asked Rowe to leave, and

Defendant emphatically denied hitting Rowe or having any physical

contact with him.   Jordan Price testified that he was the only

person who hit Rowe.   Linda Nichols testified that Defendant did

not punch Rowe.

     {¶ 28} On the other hand, the evidence presented by the State

demonstrates that Andrew Rowe was attacked and severely beaten

by three men in the basement of Defendant’s residence, and that

 Defendant was one of the men who attacked Rowe.    Rowe suffered
                                                                         9

multiple injuries that required emergency medical treatment.

Eyewitnesses testified that Defendant hit Rowe multiple times.

The credibility of the witnesses and the weight to be given to

their testimony were matter for the trier of facts, the jury here,

to decide.       DeHass.   The jury did not lose its way simply because

it chose to believe the State’s witnesses, rather than Defendant

and his witnesses, which it had a right to do.            Id.

     {¶ 29} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or   that    a    manifest   miscarriage   of   justice    has   occurred.

Defendant’s conviction for assault is not against the manifest

weight of the evidence.

     {¶ 30} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.

FAIN, J. And DONOVAN, J., concur.

Copies mailed to:

Betsy A. Deeds, Esq.
Jessica R. Moss, Esq.
Hon. Beth W. Root
