[Cite as State v. Lawyer, 2019-Ohio-597.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Earle E. Wise, Jr., P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2018 CA 00030
ROBBIE N. LAWYER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2017 CR 00603


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 15, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CLIFFORD J. MURPHY                             MICAHEL R. DALSANTO
ASSISTANT PROSECUTOR                           33 West Main Street
20 South Second Street, 4th Floor              Suite 109
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 2018 CA 00030                                                    2

Wise, John, J.

         {¶1}   Defendant-Appellant Robbie N. Lawyer appeals his conviction on one count

of felonious assault, entered in the Licking County Common Pleas Court following a jury

trial.

         {¶2}   Plaintiff-Appellee is the State of Ohio.

                         STATEMENT OF THE CASE AND FACTS

         {¶3}   On July 20, 2017, Appellant Robbie Lawyer was indicted on one count of

felonious assault, in violation of R.C. §2903.11(A)(1)(d)(1)(a), a felony of the second

degree.

         {¶4}   The record reflects that the events in question occurred on Thursday, July

6, 2017, at a bar called the "Tap Room" located at 620 East Main Street, Hebron, Licking

County, Ohio. The evidence established that this facility does not offer food services and

thus, individuals under the age of 21 are not permitted inside the premises. The Tap Room

is designated as a non-smoking facility. Individuals desiring to smoke must exit the bar

and smoke outside.

         {¶5}   At the time of the events, Appellant Robbie Lawyer was 29 years of age and

approximately 5' 10" in height.

         {¶6}   Appellant arrived at the bar in his van with his eleven (11) year-old child.

Appellant gave the child some money to purchase some items at the Kroger grocery store

nearby while Appellant went inside the bar. Once inside, Appellant drank alcoholic

beverages, played music on the juke box, and spoke with other patrons at the bar. (T. at

85).
Licking County, Case No. 2018 CA 00030                                                       3


       {¶7}   Testifying to witnessing the events of the evening were the bartender

Savannah Lathes, fellow bar patron Carl Dovenbarger, fellow bar patron Tiffany Ruggles,

and investigating Hebron Police Officer Ryan Collins. (T. at 105).

       {¶8}   The victim, Scott Fairchild, arrived at the bar at approximately 6:00-6:30 pm.

Mr. Fairchild, 51 years old, was a smoker and during the course of the evening he went

outside on several occasions to smoke (T. at 84). It was then that he observed the eleven

year old child outside.

       {¶9}   After seeing the child, Mr. Fairchild told Appellant that it was not right for

him to be in the bar drinking while his son was outside in the heat. Subsequent to this

conversation inside the bar, Mr. Fairchild went outside and was smoking when Appellant

came outside the bar and assaulted him.

       {¶10} Tiffany Ruggles, an Emergency Room nurse, testified that she observed

Appellant swing four times at the victim, including after the victim was down on the ground.

(T at 112). Ms. Ruggles testified that the victim never threw a punch at Appellant. Id. She

further testified that when the victim's head hit the concrete it sounded like a loud crack,

and that the victim was unconscious. (T. at 113). She recalled that Appellant then hit the

victim again. (T. at 113). Ms. Ruggles testified that her boyfriend, Pete Calloway, had to

physically pull Appellant off the victim, and after being pulled off the victim, Appellant went

right back after the victim, who was still unconscious. (T. at 113). She testified that she

took a photograph of Appellant. This photograph was identified and marked and admitted

into evidence as State's Exhibit 2. (T. at 114). She testified that the picture captured the

young child that waited outside the bar while Appellant was drinking inside. (T. at 115).

Ms. Ruggles recalled that the victim was unconscious for 10-15 minutes. (T. at 116).
Licking County, Case No. 2018 CA 00030                                                     4


       {¶11} The bartender, Savannah Lothes, testified that she wrote down the

Appellant's license plate number and called 911. (T. at 137, 140).

       {¶12} Carl Dovenbarger testified that it was hot that evening, and that Appellant

was inside the bar drinking when his young son opened the bar door asking to go home.

(T. at 151). Mr. Dovenbarger testified that he overheard Appellant having a heated

discussion with the victim about his boy being outside in the heat while Appellant was

drinking in an air-conditioned bar. (T. at 151-152). Mr. Dovenbarger testified that the

victim left the bar shortly thereafter to smoke, and that Appellant followed him outside. (T.

at 152). When Mr. Dovenbarger went outside, he observed the victim on the ground,

unconscious, and stated "It looked to me like he (the appellant) kicked him ... in the head".

(T. at 154). He further testified that Appellant turned to him and asked him if he wanted a

part of it. (T. at 155-156).

       {¶13} The victim, Scott Fairchild, testified that he was hospitalized from July 6,

2017, through July 24, 2017, from his injuries; that he did not regain conscious awareness

for two days; that he has permanently lost his short term memory; that he suffered a brain

bleed; that his left side of his jaw was rebuilt with steel bolts as it was crushed/shattered

from the assault; and that his jaw was wired shut for a month and a half. (T. at 89-95).

       {¶14} Officer Ryan Collins of the Hebron Police testified that he was dispatched

to the Tap Room and arrived on scene at approximately 8:16 p.m. and remained on the

scene until 9:00 p.m. (T. at 176, 180). The record established that the Police located

Appellant through law enforcement database arriving at Appellant's home at 11:29 p.m.

(T. at 181). Upon contact with Appellant, Officer Collins testified that the Appellant

appeared surprised that they were at his door. (T. at 177, 182, 189).
Licking County, Case No. 2018 CA 00030                                                        5


       {¶15} Appellant also testified at trial. He testified that he went to Kroger on July 6,

2017, with his son to pick up a prescription and to purchase groceries. (T. at 197).

According to Appellant, the prescription was not ready, so he wrote out a grocery list for

his son, handed him a fifty dollar bill, and told him to shop for the items on the list while

he went to Tap Room next door to have a "quick beer and a shot." (T. at 199). While at

the Tap Room, his son returned but had gotten sausage instead of hamburger. (T. at

200). As a result, Appellant said he gave his son ten more dollars, sent him back to the

store, and returned to the bar to pay his tab. (T. at 201). It was at that time, Appellant

testified, that he saw his son walking back from the grocery store and witnessed Mr.

Fairchild put his hands on his son's neck and shoulders outside the bar. (T. at 201). He

stated the he spoke to his son about the interaction and then decided to have a

conversation with Mr. Fairchild about it. (T. at 202). Appellant testified that Mr. Fairchild

responded by "[throwing] his cigarettes down and lighter on the ground" and then walked

up ''toe to toe, nose to nose," and said "so what if l did – what do you want to do about

it?" (T. at 204). Appellant stated that Mr. Fairchild then “jerked back.” (T. at 205). Appellant

testified that he believed that Mr. Fairchild was going to "sucker punch" him, and as a

result, he hit him one time. (T. at 205). Appellant admitted that he hit him pretty “hard” on

the left side of his face and that “[h]e went down pretty hard.” (T. at 205). Appellant

reiterated that he struck Mr. Fairchild because he believed he was going to hit him. (T. at

206, 209).

       {¶16} Appellant testified that Mr. Dovenbarger then came out of the bar and

threatened him. (T. at 208). Appellant testified that he left the bar. (T. at 208). He
Licking County, Case No. 2018 CA 00030                                                    6


specifically denied punching Mr. Fairchild multiple times, kicking him or punching him

while he was on the ground. (T. at 207, 209).

       {¶17} On cross-examination, Appellant admitted that he knowingly punched Mr.

Fairchild in the face. (T. at 210). He further admitted that he caused Mr. Fairchild serious

physical harm. (T. at 211). Appellant also admitted that his written statement provided to

the police did not mention the victim raising a fist at any time. (T. at 220)

       {¶18} At the conclusion of the trial and following deliberations, the jury returned a

verdict of guilty as charged on the count of felonious assault.

       {¶19} On March 19, 2018, the trial court sentenced Appellant to a prison term of

four (4) years.

       {¶20} Appellant now appeals, assigning the following error for review:

                               ASSIGNMENTS OF ERROR

       {¶21} “I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

THE ADMISSIBILITY OF MEDICAL RECORDS AND FOR FAILING TO REFERENCE

CERTAIN EVIDENCE DURING CLOSING ARGUMENT.

       {¶22} II. THE JURY CLEARLY LOST ITS WAY IN CONVICTING MR. LAWYER

OF FELONIOUS ASSAULT AND REJECTING HIS CLAIM OF SELF DEFENSE.”

                                              II.

       {¶23} For ease of discussion, we shall address Appellant’s assignments of error

out of order.

       {¶24} In Appellant’s second assignment of error, Appellant argues that the jury’s

verdict is against the manifest weight of the evidence. We disagree.
Licking County, Case No. 2018 CA 00030                                                    7


       {¶25} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 clearly

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

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶26} In the case sub judice, Appellant was convicted of felonious assault, in

violation of R.C. § 2903.1.13, which provides:

              (A) No person shall knowingly do either of the following:

              (1) Cause serious physical harm to another.

       {¶27} The evidence at trial established Appellant punched the victim in the head

and caused him serious physical harm. Appellant admitted same.

       {¶28} Appellant, however, argues that he acted in self-defense. Self-defense is a

“confession and avoidance” affirmative defense in which Appellant admits the elements

of the crime but seeks to prove some additional element that absolves him of guilt. State

v. White, 4th Dist. Ross No. 97 CA 2282, 1998 WL 2282 (Jan. 14, 1998). The affirmative

defense of self-defense places the burden of proof on a defendant by a preponderance

of the evidence. In re Collier, 5th Dist. Richland No. 01 CA 5, 2001 WL 1011457 (Aug.

30, 2001), citing State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096 (4th

Dist.1992). The proper standard for determining whether a criminal defendant has
Licking County, Case No. 2018 CA 00030                                                     8


successfully raised an affirmative defense is to inquire whether the defendant has

introduced sufficient evidence, which, if believed, would raise a question in the minds of

reasonable persons concerning the existence of the issue. State v. Melchior, 56 Ohio

St.2d 15, 381 N.E.2d 195 (1978), paragraph one of the syllabus.

       {¶29} To establish self-defense in the use of non-deadly force, the accused must

show: 1) he was not at fault in creating the situation giving rise to the altercation; 2) the

accused had reasonable grounds to believe and an honest belief, even though mistaken,

that some force was necessary to defend himself against the imminent use of unlawful

force; and 3) the force used was not likely to cause death or great bodily harm. State v.

Hoopingarner, 5th Dist. Tuscarawas No. 2010AP 07 00022, 2010–Ohio–6490, ¶ 31, citing

State v. Vance, 5th Dist. Ashland No. 2007–COA–035, 2008–Ohio–4763, ¶ 77 (citations

omitted). If any one of these elements is not proven by a preponderance of the evidence,

the theory of self-defense does not apply. State v. Williford, 49 Ohio St.3d 247, 249, 551

N.E.2d 1279 (1990).

       {¶30} Here, the witness testimony together with the victim's testimony and the

physical evidence established the necessary elements of the charge of assault.

       {¶31} As to Appellant's affirmative defense of self-defense, we find Appellant

failed to prove that the amount of force he used was necessary to defend himself and/or

that the force used was not likely to cause great bodily harm to the victim.

       {¶32} Here, the jury heard two versions of the events that took place on that day.

The jury chose to believe the version of events as presented by the State.

       {¶33} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
Licking County, Case No. 2018 CA 00030                                                     9


competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911 (Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going to

all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d

517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967).

       {¶34} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’ ” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008–Ohio–6635,

¶ 31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964

(2nd Dist.2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.
Licking County, Case No. 2018 CA 00030                                                   10

99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201,

722 N.E.2d 125(7th Dist.1999).

       {¶35} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6524, 960

N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

       {¶36} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP–

604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist.1992).

       {¶37} We find that this is not an “ ‘exceptional case in which the evidence weighs

heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost its way nor

created a miscarriage of justice in convicting Appellant of the charge of felonious assault.
Licking County, Case No. 2018 CA 00030                                                     11


       {¶38} Based upon the foregoing and the entire record in this matter, we find

Appellant's conviction is not against the manifest weight of the evidence. To the contrary,

the jury appears to have fairly and impartially decided the matters before them. The jury

as a trier of fact can reach different conclusions concerning the credibility of the testimony

of the witnesses. This Court will not disturb the trier of fact's finding so long as competent

evidence was present to support it. State v. Walker, 55 Ohio St .2d 208, 378 N.E.2d 1049

(1978). The jury heard the witnesses, evaluated the evidence, and was convinced of

Appellant's guilt.

       {¶39} Appellant’s second assignment of error is overruled.

                                                 I.

       {¶40} In Appellant’s first assignment of error, Appellant argues that he was denied

the effective assistance of counsel. We disagree.

       {¶41} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have
Licking County, Case No. 2018 CA 00030                                                   12

been different. Id. However, trial counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v. Sallie

(1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.

       {¶42} Here, Appellant argues that his counsel was ineffective by failing to object

to the admissibility of the victim’s medical records documenting his injuries and by failing

to refer to the victim’s blood alcohol content during his closing arguments.

       {¶43} Upon review, we find, as set forth above, Appellant’s raised a self-defense

strategy at trial. Based on such defense, Appellant admitted to the elements of the charge

of felonious assault, arguing instead that his actions were justified based on his beliefs.

Because Appellant admitted to the elements, including the serious physical harm

element, we find that the admission of the victim’s medical records did not prejudice

Appellant’s defense. Rather, the admission of the medical records allowed for suggestion

by Appellant that the victim was intoxicated at the time of the incident.

       {¶44} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690. In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).
Licking County, Case No. 2018 CA 00030                                                  13


       {¶45} Appellant has failed to demonstrate how his trial counsel's performance was

deficient or that the result of the trial would have been different. Accordingly, he cannot

prevail on his claim of ineffective assistance.

       {¶46} Appellant’s first assignment of error is overruled.

       {¶47} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.


By: Wise, John, J.

Wise, Earle, P. J., and

Delaney, J., concur.



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