[Cite as State v. Osborne, 2016-Ohio-282.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.        27563

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
EDWARD J. OSBORNE                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 13 10 2911

                                 DECISION AND JOURNAL ENTRY

Dated: January 27, 2016



        CARR, Presiding Judge.

        {¶1}     Appellant, Edward J. Osborne, appeals the judgment of the Summit County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On April 17, 2013, Osborne was involved in a violent altercation outside a Family

Dollar Store in Akron. Subsequently, the Summit County Grand Jury indicted Osborne on two

counts of felonious assault. The State later supplemented the indictment with a repeat violent

offender specification for each count. Osborne pleaded not guilty to the charges at arraignment

and the matter proceeded to a jury trial. Osborne asserted the affirmative defense of self-

defense, and the jury was instructed accordingly. Osborne was convicted of both counts of

felonious assault as well as the attendant specifications. The trial court sentenced Osborne to 18

years in prison.

        {¶3}     On appeal, Osborne raises one assignment of error.
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                                                 II.

                                  ASSIGNMENT OF ERROR

       OSBORNE’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶4}    In his sole assignment of error, Osborne contends that his felonious assault

convictions were against the manifest weight of the evidence because the greater weight of the

evidence presented at trial demonstrated that he acted in self-defense. This Court disagrees.

       {¶5}    When a defendant argues that his convictions were contrary to the weight of the

evidence, this court must review all of the evidence before the trial court:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a

judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

       {¶6}    Osborne has the burden of proving by a preponderance of the evidence that he

was acting in self-defense when he hit Gary Hite with his car and stabbed Michael Jones. State

v. Williford, 49 Ohio St.3d 247, 249 (1990). In order to demonstrate that he acted in self-

defense, Osborne must show:

       (1) the defendant was not at fault in creating the violent situation, (2) the
       defendant had a bona fide belief that [he] was in imminent danger of death or
                                                3


       great bodily harm and that [his] only means of escape was the use of force, and
       (3) that the defendant did not violate any duty to retreat or avoid the danger.

State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, ¶ 36, quoting State v. Thomas, 77 Ohio St.3d

323, 326 (1997). The “elements of self-defense are cumulative. * * * If 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.” (Emphasis sic.) State v. Jackson, 22 Ohio St.3d 281, 284 (1986);

State v. Cornwell, 9th Dist. Wayne No. 14AP0017, 2015-Ohio-4617, ¶ 19.

       {¶7}    Osborne argues that the testimony of the two victims in this case demonstrates

that they were the aggressors during the altercation and that Osborne acted in self-defense.

       {¶8}    A thorough review of the record reveals that Osborne was not acting in self-

defense when he assaulted Michael Jones and Gary Hite on the evening of April 17, 2013. Jones

and his girlfriend lived in a house with T.T., Osborne’s ex-girlfriend. Osborne formerly resided

at the house but he moved out after he and T.T. were involved in a domestic violence incident.

On the night in question, a group including T.T., Jones, and Hite were socializing at the house.

T.T. received a phone call and indicated that she needed to walk alone to the Family Dollar

Store. Jones found T.T.’s desire to walk alone puzzling because T.T. was usually afraid to walk

by herself at night. Jones testified that he looked out for T.T. after Osborne moved out, and he

was concerned in this particular instance because he did not want Osborne confronting her and

starting an altercation. Hite was also aware that T.T. was afraid of Osborne. Because he was

concerned for T.T.’s safety, Hite offered to escort her to the store. Shortly thereafter, Jones saw

Osborne driving by the house very slowly with his headlights turned off. At that point, Jones left

the house and followed in hopes of preventing a confrontation.

       {¶9}    T.T. walked ahead of Hite on the way to the store. T.T. arrived at the Family

Dollar before Hite and proceeded to walk around the corner of the store. Hite immediately heard
                                                 4


her exclaim, “Get off me. Get off me.” Hite then walked around the corner and found Osborne

trying to put T.T. in his car. Hite testified that as T.T. was “struggling to get away,” he

intervened and walked T.T. inside the store. When Hite walked back outside, a man who had

been a passenger in Osborne’s vehicle approached Hite and struck him in the head with a

weapon. The two men “fell onto the ground and tussled.” The passenger eventually got up and

walked away. Hite testified that the last thing he remembered was someone yelling, “[w]atch

out” immediately before Osborne struck Hite with his car.

       {¶10} Jones testified that he encountered a precarious scene when he arrived at the

Family Dollar. Hite was engaged in a confrontation with the unidentified passenger from

Osborne’s car. Osborne was on the other side of the car arguing with T.T. Jones testified that

Osborne was trying to put T.T. in his car but she was frightened and attempting to resist. Jones

acknowledged during his testimony that while he was concerned for T.T.’s safety, he was also

angry with Osborne for a separate incident involving Jones’ girlfriend. As Osborne struggled

with T.T., Jones approached Osborne and the two men proceeded to get into a fistfight. While

Jones did not have a weapon, Osborne pulled out a knife and stabbed Jones in the side. Jones

attempted to pull Osborne away from the vehicle but he was unable to do so. T.T. was able to

get out of the car and run into the store. Osborne got in his car and drove away. Though the

State presented a surveillance video at trial showing Osborne crashing his car into Hite, Jones

testified that he did not witness the encounter after being stabbed.

       {¶11} Osborne testified in his own defense at trial and offered a completely different

version of events. According to Osborne, T.T called him on the night of the incident and

arranged to meet him at the Family Dollar. When Osborne arrived in the parking lot, T.T. was

waiting for him and Hite stood just behind her. Osborne got out of his car and greeted both T.T.
                                                 5


and Hite. Osborne told T.T. to get in his car. Hite started messing with his sleeve and he

eventually pulled a knife. Osborne reached in his car and pulled out a pipe wrench. When Hite

lunged at Osborne, Osborne struck him with the pipe wrench. Hite staggered and dropped the

knife. Osborne testified that he picked up the knife but then noticed an unidentified man with a

revolver. Osborne attempted to flee but Jones emerged and struck Osborne in the back of the

head. Osborne then turned and stabbed Jones. Osborne testified that he got into his vehicle in an

attempt to get away. As Osborne struggled to get the car in gear, Jones threw a rock at the

vehicle while two other men attempted to open the passenger door. Osborne was able to get the

car in gear and he turned the car around in the parking lot in order to avoid the traffic on Howard

Street. Osborne testified that when he attempted to leave the parking lot, he inadvertently struck

Hite with his car.

       {¶12} After a thorough review of the record, we cannot say that this is the exceptional

case where the evidence weighs heavily against conviction. See State v. Gulley, 9th Dist.

Summit No. 19600, 2000 WL 277908, *3 (Mar. 15, 2000). The greater weight of the evidence

presented at trial showed that Osborne instigated the violent sequence of events in this case by

accosting T.T. and attempting to force her into his vehicle. When Jones, who was unarmed,

confronted Osborne, Osborne escalated the situation by pulling a knife and stabbing Jones in the

side. Hite testified that after he escorted T.T. into the Dollar Store, he was attacked by a man

with a weapon. As Hite staggered in the parking lot, Osborne struck Hite with his vehicle. As

there was ample evidence indicating that Osborne was responsible for creating a volatile

situation and then accelerating the level of violence, he cannot prevail on his manifest weight

challenge. Moreover, though Osborne offered testimony in support of his self-defense theory, it

is well settled that “this Court will not overturn the trial court’s verdict on a manifest weight of
                                                 6


the evidence challenge only because the trier of fact chose to believe certain witnesses’

testimony over the testimony of others.” State v. Adams, 9th Dist. Summit No. 26009, 2012-

Ohio-4382, ¶ 20, citing State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶

22. Under these circumstances, this Court cannot say that the jury clearly lost its way and

created a manifest miscarriage of justice.

       {¶13} The assignment of error is overruled.

                                                III.

       {¶14} Osborne’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                               DONNA J. CARR
                                               FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
