[Cite as State v. Allen, 2017-Ohio-6878.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

STATE OF OHIO,                                 :      Case No. 16CA3538

        Plaintiff-Appellee,                    :

        v.                                     :      DECISION AND
                                                      JUDGMENT ENTRY
MATTHEW S. ALLEN,                              :
                                                      RELEASED: 7/12/2017
        Defendant-Appellant.                    :
                                            APPEARANCES:

Timothy Young, Ohio Public Defender, and Terrence K. Scott, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
        {¶1}     A jury convicted Matthew S. Allen of felonious assault, aggravated

robbery, theft and tampering with evidence in connection with his assault on an off-duty

officer at a private quarry.

        {¶2}     Initially Allen asserts that the trial court erred in admitting recent posts

from his Facebook page that stated he and his friends were trespassing in an area that

was not accessible to the public, and separate posts a few hours before the crimes

stating they were at a quarry, and that he would assault any police officer trying to stop

them from swimming there.

        {¶3}     Allen primarily claims that the trial court erred in admitting these Facebook

posts into evidence because they constitute impermissible other-acts evidence. We

reject his claim because: (1) he forfeited all but plain error by failing to raise this specific

objection below; (2) he does not argue plain error on appeal; and (3) he has not
Ross App. No. 16CA3538                                                                2


established error, much less plain error. The latter posts were admissible to establish

that he knew that the victim was a police officer and to rebut his claim that he would

have acted differently had he known that fact. Moreover, the outcome of the trial would

not have clearly been otherwise without the evidence.

       {¶4}   Allen also claims that the trial court erred in admitting these Facebook

posts because their probative value is substantially outweighed by their prejudicial

effect. The trial court did not abuse its broad discretion in concluding otherwise,

particularly where Allen did not claim a prejudicial effect below. Instead, he argued that

the danger of unfair prejudice arose because the posts were “nothing more than

unauthenticated, irrelevant hearsay statements which serve no probative value.” But he

does not claim that the posts are unauthenticated, irrelevant, or hearsay now. We

overrule Allen’s first assignment of error.

       {¶5}   Next Allen contends that his conviction for felonious assault was against

the manifest weight of the evidence because the state offered no substantive evidence

to rebut his showing of self-defense. We reject his contention because it is based on an

erroneous premise; when a defendant claims an affirmative defense like self-defense,

the state need not produce rebuttal evidence to defeat it. Because the burden of proof

lies with the defendant, the state need not introduce anything when the defendant fails

to carry that burden.

       {¶6}   After considering the evidence we conclude that the jury did not clearly

lose its way or create a manifest miscarriage of justice by rejecting Allen’s claim of self-

defense. Based upon the evidence, the jury could reasonably conclude that Allen was

at fault for creating the violent situation by not complying with the law enforcement
Ross App. No. 16CA3538                                                                  3


officer’s commands and instead punching him in the face; and likewise the jury was free

to believe that Allen did not have a bona fide belief that he was in imminent danger of

death or bodily harm so that his only means of escape was the use of force. The jury

did not credit his claim of self-defense, as was their prerogative. We overrule his

second assignment of error and affirm his convictions.

                                          I. FACTS

       {¶7}   The Ross County Grand Jury returned an indictment charging Matthew S.

Allen with two counts of felonious assault, one count of aggravated robbery, and one

count of tampering with evidence. Allen entered a plea of not guilty to the charges, and

the trial court appointed counsel for him.

                                      A. Motion in Limine

       {¶8}   Prior to trial Allen filed a motion in limine to prevent the state from

introducing or referencing Facebook postings he allegedly made concerning his intent to

swim at a private quarry and his intent to assault any officer who tried to stop people

from swimming there. Allen claimed that these postings were inadmissible because

they were: (1) not relevant to the case as none of the charges required premeditation

as an element of the offense; (2) not authentic because several individuals had access

to his Facebook account; (3) hearsay evidence that failed to fit within an exception; and

(4) “nothing more than unauthenticated, irrelevant hearsay statements which serve no

probative value” so that their danger of unfair prejudice substantially outweighed any

probative value.

       {¶9}   At the hearing on Allen’s motion the state presented the unrebutted

testimony of Ross County Sheriff’s Detective Tony Wheaton. The trial court issued a
Ross App. No. 16CA3538                                                               4


decision overruling the majority of his motion, but reserving a decision on the Evid.R.

403 unfair prejudice issue. The court determined that Allen’s Facebook postings were

relevant to his identity and presence at the scene at the time of the offenses, as well as

to his intent to assault a law enforcement officer and to take his badge.

                                         B. Jury Trial

       {¶10} The case proceeded to a jury trial where the following evidence was

admitted. On the date of the crimes Ronnie Johnson was a duly commissioned Ross

County Deputy Sheriff and auxiliary Greenfield Police Officer. Rucker’s Stone Quarry is

a private quarry in Ross County owned by the Village of Greenfield, which uses the

property as a training center. It is not open to the public, but members of the police

department and their spouses and significant others are allowed to use it for

recreational purposes like camping and fishing.

       {¶11} Deputy Sheriff Johnson testified that at approximately 8:00 p.m. on May 7,

2015, he went to the quarry with his girlfriend, Cynthia Speakman, to fish. He wore

casual clothes: a gray Army t-shirt, a pair of camouflage cargo shorts, a hat, and tennis

shoes. He also had a Colt Agent .38 handgun, his personal firearm, as his off-duty

weapon. He had the gun in a holster on his right hip underneath his t-shirt, and he had

handcuffs in his left rear pocket. He had his sheriff’s deputy badge on his belt next to

his firearm and left his police badge in his truck when they parked in the quarry. At the

time he and Speakman arrived at the quarry, it was still light outside. Johnson had

authority as an off-duty officer to make arrests in Ross County and Greenfield.

       {¶12} When Johnson and Speakman walked down to the water, they noticed

Allen, his girlfriend, Kayla Lord, and his brother, Todd, on the other side of the water
Ross App. No. 16CA3538                                                               5


along the east rock wall. Speakman telephoned her son, a Greenfield Police Officer, to

let him know that there were people trespassing at the quarry. Johnson testified that

when he got about 50 feet away from them, he got their attention, held his badge up,

identified himself as a Ross County Deputy Sheriff, and told them that they were

trespassing on Greenfield Police Department property and that they would have to

leave. Johnson also noticed a fire and asked them if they started it; after they said they

had not, he asked them for help to put it out. Johnson went back to his truck to get a

bucket to help put out the fire and retrieved his police badge, which he put on his belt

next to his sheriff’s deputy badge. Allen, his brother, and his girlfriend came over to

help put out the fire.

         {¶13} Johnson testified that he asked the three trespassers to identify

themselves so that he could put them on a list of people who had been warned about

trespassing at the quarry so that they would be charged if they returned. Johnson again

displayed his badge and identified himself as a Ross County Deputy Sheriff. Lord

complied, but Allen became agitated and told Johnson that he didn’t “give a fuck.”

Johnson then told Allen he was under arrest, and he reached for his handcuffs to put on

Allen.

         {¶14} According to Johnson, Allen then retreated, became more belligerent,

stated that he was not going to jail, and put his hands up in a fighting stance. Johnson

told Allen that he did not want to have to fight him and reiterated that he was a law

enforcement officer and that if Allen fought him, it would be a felony. Allen repeated

that he didn’t give a fuck, and he punched Allen on the left side of his mouth. Johnson

yelled at Allen to get on the ground, but Allen charged him and as they were struggling,
Ross App. No. 16CA3538                                                              6


Todd hit Johnson in his head and grabbed his arms. One of the two brothers yelled for

the other to get Johnson’s gun. Allen took Johnson’s gun out of his holster and struck

him in his right eye and head, rendering him unconscious. When Johnson came to

shortly thereafter, he noticed his gun and handcuffs were gone and he saw the three

trespassers running away. Speakman called 911.

       {¶15} Johnson testified that when the police arrived, he was taken to a nearby

park where officers had detained several people, and he identified Todd as one of the

trespassers who attacked him. An emergency squad took Johnson to a local hospital

for treatment. As a result of his injuries sustained in the attack, Deputy Sheriff Johnson

was off work for about a month.

       {¶16} Other witnesses corroborated much of Johnson’s testimony. Speakman

testified that when she and Johnson arrived at the quarry, Johnson indicated to Allen

and the two other individuals that he was a law enforcement officer, held up his badges,

and told them that they were trespassing on private property. She further confirmed

that when the three got closer to them, Johnson again identified himself to the three as

a law enforcement officer, that he asked for their names to be put on a list, and that

Allen refused to comply and told Johnson that he wasn’t going to arrest him. After

Speakman saw Allen get into a fighting stance and begin struggling with Johnson, she

ran back to the truck to retrieve her cell phone and heard someone yell to get Johnson’s

gun. When she returned, Johnson was unconscious and the three trespassers were

running away.

       {¶17} Lord, who was dating Allen at the time after meeting through Facebook,

testified that for three days in early May 2015, she stayed at Allen’s house in Hillsboro
Ross App. No. 16CA3538                                                              7


with Allen and his brother. Lord further testified that on May 6, 2015, she, Allen, and

Todd went on a trip to an abandoned park named Seven Caves, and Allen posted

several pictures of the park on his Facebook account, including his comment stating

that it was not accessible. The next day, Allen took a picture of Lord washing his truck

and posted it on Facebook. Allen renewed his objection to this social media evidence

“on the same basis as was set forth in the memorandum” he filed in support of his

motion in limine, but the trial court overruled his objection.

       {¶18} Lord confirmed that on May 7, 2015, she, Allen, and Todd were diving and

swimming at the private quarry when Deputy Sheriff Johnson and Speakman arrived.

She indicated Johnson identified himself as a law enforcement officer, but Allen became

aggressive towards Johnson, and during a struggle that ensued, she saw the officer

knocked out on the ground with Allen standing over him. She ran with Allen to a nearby

town, Allen told her he had stolen Johnson’s gun, and he hid it. They then hid under a

trailer until police spotted and arrested them. According to Highland County Deputy

Sheriff Mike Gaines, he located Johnson’s handcuffs a few feet away from Allen and

Lord and Allen ultimately told him where he had hidden Johnson’s gun.

       {¶19} Ross County Deputy Sheriff Tony Wheaton testified that he was familiar

with Facebook, he maintained a Facebook account, and that he often used Facebook

as a law enforcement investigative tool because criminals have a tendency to post

about their criminal activities. During direct examination Wheaton testified over Allen’s

continuing objection about public postings on Allen’s Facebook account, which Wheaton

obtained during his criminal investigation. One of the exhibits had been previously

referenced in Lord’s testimony and provided:
Ross App. No. 16CA3538                                                               8


         May 6 at 4:56 pm

         Seven caves, yep its “not accessible” to public and closed off… but let’s
         be honest, that just makes it more fun Todd Allen Kayla Lord and yep
         Todd went swimming in the random cave pool

(Sic.)

         {¶20} Deputy Sheriff Wheaton also testified about other photographs he took of

Allen’s Facebook postings from earlier on May 7, 2015, the date of the crimes. They

included pictures Allen posted of the quarry, including the following post about Allen and

his brother, Todd, jumping off the rock cliff at the quarry, and comments in which Allen

threatened to assault and take away the badge of any police officer telling them they

couldn’t swim there:

         May 7 at 3:34 pm

         Hitting up greenfield rock cliff jumps! !! – with Todd Allen

         Matt Akers FR [posted May 7 at 4:37 p.m.]

         Matthew Allen Yep [posted May 7 at 4:59 p.m.]

         Matthew Allen I’ll smack him [posted May 7 at 5:03 p.m.]

         Matthew Allen I smack him and take his badge then you owe dinner sis. [posted
         May 7 at 5:08 p.m.]

         Matthew Allen Breaking news, greenfield state police officer gets assaulted and
         de-badge for trying to stop people from swimming [posted May 7 at 5:15 p.m.]

         Matt Akers I wanna go [posted May 7 at 5:20 p.m.]

(Sic.)

         {¶21} At the conclusion of the state’s case the court overruled Allen’s objections,

which he made on “same basis * * * as in my Motion in Limine, stated to this Court and
Ross App. No. 16CA3538                                                               9


asserted throughout the trial”. The trial court relied on the same rationale used in its

decision overruling the motion in limine.

       {¶22} In his defense Allen testified and admitted that he trespassed with Lord

and his brother at the quarry on the date of the crimes and that he had been trespassing

at the quarry for seven years without ever seeing a no-trespassing sign or being warned

by a police officer. Allen also conceded that he had posted the comment on Facebook

about assaulting a Greenfield police officer and taking his badge, but said he was being

funny and that he never intended to be violent. He further admitted that when Johnson

arrived and confronted them at the quarry, Johnson identified himself as a police officer,

but he did not show a badge.

       {¶23} According to Allen when Johnson told him he was under arrest, he backed

up and tried to leave because he did not know that Johnson was an actual officer. Allen

testified that when Johnson pulled his gun on him, Allen blocked it and punched

Johnson in his right eye. Allen claimed that he was scared for his life and had been

backed up by an aggressive stranger who he did not believe was a police officer. Allen

denied hitting Johnson with his gun and testified that if he had known that Johnson was

a police officer, he would have obeyed his authority and reacted differently. None of the

other witnesses testified that Johnson pulled a gun on Allen.

       {¶24} The jury returned verdicts finding Allen guilty of one count of felonious

assault, one count of robbery, and one count of tampering with evidence and not guilty

of the remaining count of felonious assault. The jury further found that Johnson was a

peace officer at the time of the felonious assault, but that Allen did not have a firearm on
Ross App. No. 16CA3538                                                                   10


or about his person or under his control while committing the offense. The trial court

sentenced Allen to an aggregate five-year prison term.

                              II. ASSIGNMENTS OF ERROR

       {¶25} Allen assigns the following errors for our review:

       I. THE TRIAL COURT ERRED WHEN IT ADMITTED PREJUDICIAL
       EVIDENCE AND DENIED MATTHEW ALLEN’S RIGHT TO DUE
       PROCESS AND A FAIR TRIAL. OHIO EVIDENCE RULES 403(A),
       404(A) AND (B); R.C. 2945.59; FIFTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION; AND
       ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       II. MATTHEW ALLEN WAS DENIED HIS RIGHT TO DUE PROCESS
       AND A FAIR TRIAL WHEN THE JURY FOUND HIM GUILTY OF
       FELONIOUS ASSAULT AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED
       STATES CONSTITUTION; ARTICLE I, SECTION 16, OHIO
       CONSTITUTION.

                                 III. LAW AND ANALYSIS

                                    A. Other-Acts Evidence

       {¶26} In his first assignment of error Allen asserts that the trial court erred when

it admitted prejudicial evidence. Allen primarily claims that the trial court erred in

admitting his Facebook posts into evidence because they constitute impermissible

other-acts evidence.

       {¶27} We reject Allen’s claim for several reasons. First, although he objected to

the admission of these Facebook posts at trial and proffered several reasons for doing

so, he never raised the specific objection below that he raises now, i.e. that they

constituted impermissible other-acts evidence. Allen thus forfeited all but plain error for

this newly raised contention on appeal. See State v. Lawson, 4th Dist. Highland No.

14CA5, 2015-Ohio-189, ¶ 14, quoting State v. Knott, 4th Dist. Athens No. 03CA30,
Ross App. No. 16CA3538                                                                 11


2004-Ohio-5745, ¶ 9, and citing Evid.R. 103(A)(1) (“ ‘Because counsel’s objection did

not apprise the [trial] court of this specific argument, we believe a plain error analysis of

the issue is appropriate’ ”); see also Painter and Pollis, Ohio Appellate Practice, § 1:36

(2016) (“An objection to the admission of evidence on one ground * * * does not, for

purposes of appeal, preserve objections to the evidence on other grounds”).

        {¶28} Second, because Allen does not assert plain error on appeal, we need not

consider it. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d

900, ¶ 17-20 (appellate court need not consider plain error where appellant fails to

timely raise plain-error claim); State v. Gannon, 4th Dist. Lawrence No. 15CA16, 2016-

Ohio-1007, ¶ 31 (we need not consider plain error when the appellant does not raise it).

        {¶29} Third, even if we were to consider plain error, Allen has not established it.

To prevail on a claim of plain error Allen must show that an error occurred, that the error

was plain, and that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051,

¶ 69.

        {¶30} In general, “[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person to show action in conformity therewith.” Evid.R. 404(B).

“It may, however, be admissible * * * [to prove] motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” Id.

        {¶31} One of the charges that Allen faced was aggravated robbery in violation of

R.C. 2911.01(B), which prohibits persons, without privilege to do so, from knowingly

removing or attempting to remove a deadly weapon from the person of a law

enforcement officer when both of the following apply: “(1) The law enforcement officer,
Ross App. No. 16CA3538                                                                12


at the time of the removal * * * is acting within the course and scope of the officer’s

duties; (2) The offender knows or has reasonable cause to know that the law

enforcement officer is a law enforcement officer.”

       {¶32} Allen argued there was insufficient evidence that he knew or had

reasonable cause to know that Johnson was a law enforcement officer. He also

testified that if he had known that Johnson was an officer, he would have complied with

his orders instead of assaulting and robbing him. The Facebook posts on Allen’s

personal account from May 7, 2015 were consequently admissible to prove that he

knew that Johnson was a law enforcement officer and to rebut his claim that if he had

known he was an officer, he would have complied with Johnson’s orders, i.e., that he

was mistaken about Johnson’s status as an officer. Only a few hours before he

assaulted and robbed Johnson he threatened on his Facebook page to do just that—to

assault any officer that tried to stop him from swimming in the private quarry and to rob

the officer (by taking away the officer’s badge).

       {¶33} In addition both the May 7, 2015 and the previous day’s Facebook posts

were admissible to prove the identity of the perpetrator—that Allen committed the

crimes. Notwithstanding Allen’s claim on appeal that identity was not at issue because

he conceded he hit Johnson and took his gun, “need is irrelevant in determining the

validity of an Evid.R. 404(B) objection.” See State v. Brown, 100 Ohio St.3d 51, 2003-

Ohio-5059, 796 N.E.2d 506, ¶ 24 (rejecting appellant’s claim that other-acts evidence

was inadmissible because it was unnecessary to prove identity).

       {¶34} Finally, even assuming the trial court erred in admitting Allen’s Facebook

posts, Allen has not proven that the outcome of his trial clearly would have been
Ross App. No. 16CA3538                                                                 13


otherwise without them. The evidence introduced at trial included Johnson’s testimony,

which was corroborated for most material facts by Speakman’s, Lord’s, and Deputy

Sheriff Wheaton’s testimony, that: (1) Johnson identified himself as a law enforcement

officer to Allen; (2) Allen assaulted him by punching him in his face; (3) Allen stole his

gun and handcuffs; and (4) Allen hid the gun so that the officers could not find it.

       {¶35} Next Allen claims that the trial court erred in allowing the Facebook

evidence because its probative value was substantially outweighed by its prejudicial

effect. See Evid.R. 403(A) (“Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury”); 1 Giannelli, Baldwin’s Oh. Prac. Ev.,

§ 404.14 (3d Ed.2016) (“Even if the other-acts evidence is offered to prove a material

element, the decision to admit this evidence is subject to Rule 403).

       {¶36} The trial court did not abuse its broad discretion in concluding otherwise.

This evidence’s probative value—detailing what Allen intended to do to a police officer

who confronted him about swimming in the private quarry—was high given its posting a

few hours before the incident, and the accuracy with which it described his future

conduct. Its prejudicial effect did not substantially outweigh this probative value. See

State v. Norman, 4th Dist. Ross Nos. 08CA3059 and 08CA3066, 2009-Ohio-5458, ¶ 54,

quoting State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23

(“the rules of evidence do not attempt to bar all prejudicial evidence-to do so would

make reaching any result extremely difficult. Rather, only evidence that is unfairly

prejudicial is excludable” [emphasis sic.]).
Ross App. No. 16CA3538                                                                 14


       {¶37} In fact, when Allen raised this claim below, he did not assert—as he does

now—any unfair prejudice based on his claim of improper other-act evidence. Instead,

his argument of unfair prejudice below was based on his claim that the Facebook posts

were “unauthenticated, irrelevant hearsay statements which serve no probative value.”

He has abandoned these claims on appeal. In fact, at trial Allen eventually testified that

he did make the contested posts.

       {¶38} Allen has therefore failed to establish any error on the part of the trial court

in admitting his Facebook posts. We overrule his first assignment of error.

                   B. Manifest Weight of the Evidence: Felonious Assault

       {¶39} In his second assignment of error Allen contends that his conviction for

felonious assault was against the manifest weight of the evidence. 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. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6254, 960 N.E.2d 955, ¶ 119.

       {¶40} However, we are reminded that generally the weight and credibility of

evidence are to be determined by the trier of fact. See State v. Kirkland, 140 Ohio St.3d

73, 15 N.E.3d 818, 2014-Ohio-1966, at ¶ 132. “ ‘A jury, sitting as the trier of fact, is free

to believe all, part or none of the testimony of any witness who appears before it.’ ”

State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17,
Ross App. No. 16CA3538                                                                 15

quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer

to the trier of fact on these evidentiary weight and credibility issues because it is in the

best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to

use these observations to weigh their credibility.

       {¶41} Allen argues that his conviction for felonious assault was against the

manifest weight of the evidence because the state offered no substantive evidence to

rebut his showing of self-defense. We reject this argument because it is based on an

erroneous premise; when a defendant claims an affirmative defense like self-defense,

the state need not produce rebuttal evidence to defeat it. See State v. Hall, 4th Dist.

Ross No. 13CA3391, 2014-Ohio-2959, ¶ 29 (“When a defendant presents an affirmative

defense there is no mandatory duty that requires the state to produce rebuttal

evidence”).

       {¶42} Rather, “[t]o establish self-defense, a defendant must establish, by a

preponderance of the evidence, the following three circumstances: ‘ “(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 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 of

retreat or avoid the danger.” ’ ” State v. Waller, 4th Dist. Scioto Nos. 15CA3683 and

15CA3684, 2016-Ohio-3077, ¶ 23, quoting State v. Goff, 128 Ohio St.3d 169, 2010-

Ohio-6317, 942 N.E.2d 1085, ¶ 36, quoting State v. Thomas, 77 Ohio St.3d 323, 326,

673 N.E.2d 1339 (1997).

       {¶43} After considering the evidence we conclude that the jury did not clearly

lose its way or create a manifest miscarriage of justice by rejecting Allen’s claim of self-
Ross App. No. 16CA3538                                                                 16


defense to the felonious-assault charge. The evidence in this case could reasonably

lead a jury to conclude that: (1) Allen was at fault for creating the violent situation by

failing to comply with Deputy Sheriff Johnson’s lawful commands and instead punching

him in his face and stealing his gun and handcuffs; and (2) Allen did not have a bona

fide belief that he was in imminent danger of death or bodily harm—he could have

diffused the situation by either giving his name and address to Johnson or allowing

himself to be arrested for trespassing. Because Allen failed to carry his burden of proof,

the state had no duty to present rebuttal evidence.

         {¶44} Allen cites his own testimony that Johnson escalated the situation by

drawing his gun, but no other witness corroborated this testimony. The jury was free to

discredit this testimony, particularly when a reasonable person who claimed to have

been assaulted by a person impersonating a police officer would have attempted to

contact the police rather than run from them and attempt to hide a gun stolen from the

person he claimed impersonated a police officer. The jury’s verdict was not against the

manifest weight of the evidence. We overrule Allen’s second assignment of error.

                                     IV. CONCLUSION

         {¶45} Allen has failed to establish that the trial court committed any reversible

error. Having overruled Allen’s assignments of error, we affirm the judgment of the trial

court.

                                                                   JUDGMENT AFFIRMED.
Ross App. No. 16CA3538                                                                  17


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
