[Cite as State v. Wright, 2019-Ohio-4803.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 28254
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-1456
                                                   :
 DEVIN WRIGHT                                      :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 22nd day of November, 2019.

                                              ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
       Attorney for Defendant-Appellant

                                             .............



DONOVAN, J.
                                                                                           -2-




          {¶ 1} Devin Wright was convicted following a jury trial on one count of felonious

assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of the second

degree. The trial court imposed a two-year prison sentence. Wright appeals from his

conviction. We hereby affirm the judgment of the trial court.

          {¶ 2} Wright was indicted on one count of felonious assault on May 8, 2018. On

June 13, 2018, he filed a motion to suppress. On July 18, 2018, Wright filed a request

for a competency evaluation, and the court ordered such an evaluation. On October 4,

2018, the court overruled Wright’s motion to suppress after a hearing and found Wright

competent to stand trial based on a psychiatric report.

          {¶ 3} On October 31, 2018, the State filed a motion in limine, requesting a pretrial

ruling on the issue of character evidence. The State filed a second motion in limine on

November 15, 2018, seeking to exclude evidence of Wright’s diminished mental capacity.

          {¶ 4} Also on November 15, 2018, Wright filed a notice of his intent to offer an

affirmative defense of self-defense and defense of others. In response, the State filed a

motion in limine seeking to prevent Wright from making statements or seeking an

instruction about self-defense. Specifically, the State asserted that the witnesses at trial

would testify that Wright and his associates were the “first aggressors,” that Wright

admitted that the victim was not armed and never hit, struck, or attempted to hurt anyone,

and that Wright “never attempted to retreat when in an open parking lot but instead

escalated an argument by attacking the victim.” Wright opposed the State’s motions in

limine.

          {¶ 5} On November 21, 2018, Wright filed a motion in limine to exclude cumulative
                                                                                        -3-


evidence regarding the victim’s injuries and to exclude recorded jail telephone calls as

hearsay and prejudicial. Two days later, Wright requested a jury instruction on “the

lesser offense of misdemeanor assault.” On November 26, Wright filed a supplemental

memorandum requesting jury instructions on both misdemeanor assault and aggravated

assault. The trial was held on November 26-28, 2018.

      {¶ 6} At trial, Ronnie Evans, age 44, testified that on April 7, 2018, he and his

fiancée, Andrea Anderson, went to Connell’s bar in Dayton at around 9:00 or 10:00 p.m.

Evans went there to speak to his friend, Lloyd McGee, who was “running the karaoke” at

the bar. Evans testified that he remained in the bar for 15 to 20 minutes and then left

because he “was getting some very uncomfortable looks from across the room.” Evans

recognized “Amanda” across the room as someone “from another establishment” where

Evans himself worked as a karaoke D.J. He stated that he asked McGee to follow him

and Anderson outside, where he “was met by a group of people.” Evans stated that

McGee walked them to the front door and stopped, and that he (Evans) was approached

by three men “closer to the back of [his] car” in the parking lot. Evans testified that one

of the men, named “Tommy,” whom he did not know, accused him of previously hitting

his sister, Amanda Mason,1 the woman Evans recognized inside the bar. Evans testified

that he responded, “I’ve never touched your sister.”

      {¶ 7} The following exchange occurred with the prosecutor:

             Q. At that point, did he threaten you?

             A. Not - - not verbally threaten, but just being approached by three



1For clarity, we will refer to Tommy Mason and his sister Amanda Mason by their first
names.
                                                                                             -4-


       gentlemen in a dark parking lot that you don’t know is threatening to me,

       personally.

              ***

              Q. Did you verbally threaten him?

              A. No, I did not.

              ***

              Q. Did you imply in any way that you had a weapon on you?

              A. No, I did not.

              ***

              Q. * * * And then what happens at that point? So you have Tommy

       in front of you. You have two males on each side of you. What happens?

              A. Well, as I am pleading my * * * innocence in, you know, I guess

       whatever happened with his sister, I basically got punched.

              Q. Do you know who punched you?

              A. Yes, I do.

              Q. And did you know that person before the incident?

              A. Absolutely not.

       {¶ 8} Evans identified Wright as his assailant. He testified that he fell to the

ground, covered his face with his hands in a fetal position, and “received a couple kicks.”

Evans testified that the men then proceeded to their vehicle, and he “rushed” to get into

his own vehicle. Evans testified that he attempted to follow the other vehicle, and as he

did so “there was a police officer that pulled up.” Evans stated that he jumped out of his

car and told the officer, “that car right there that’s got the brake lights on still, * * * they
                                                                                          -5-


just beat the hell out of me.”

       {¶ 9} Evans subsequently drove a few blocks in the direction of the hospital and

then pulled over due to pain in his head. He testified that Anderson then drove him to

Miami Valley Hospital (“MVH”). He stated that an officer responded to the hospital, and

that he (Evans) provided the officer with a partial plate number from the other vehicle.

Evans testified that he was x-rayed at the hospital and given “multiple types of medication”

to try to relieve his pain, which was “pretty excruciating.” Evans testified that the x-rays

revealed that both of his cheek bones and his left eye socket were “shattered,” his nose

was broken, and he had to have an emergency reconstructive surgery the next morning.

Evans testified that, while in the hospital, he was able to identify Wright via Facebook by

searching for Amanda’s brother, Tommy. Specifically, after Evans found pictures of

Amanda’s brother Tommy on Facebook, he found pictures of Wright and her brother

together.

       {¶ 10} Evans testified that he had surgery on April 8, 2018, and that thereafter his

“mouth was wired shut for six weeks.” He was required to eat through a straw and lost

28 pounds in six weeks. Evans testified that he had “never been through this much pain”

prior to his surgery and that it was “one of the worst experiences” of his life. He stated

that he still had a lot of pain after the surgery. Evans testified that he “had a couple

different pain meds,” and that he “had to take a liquid antacid, because of all the reactions

that I was getting from it was giving me a lot of heartburn, a lot of * * * discomfort in my

chest.” Evans testified that he tried to discontinue the pain medication early so that he

could return to work, where he operated a concrete truck, and he missed six weeks of

work. Evans also testified that he still experienced numbness “all over [his] face” and
                                                                                        -6-


that he was unable to eat certain foods because of problems with chewing and biting.

       {¶ 11} On cross-examination, Evans testified that he came to recognize Amanda

Mason in the course of his work as a karaoke disc jockey. He stated that on March 3,

2018, Amanda Mason got into a fight with his sister while he was working at a bar, and

that he did not intervene in the fight. Evans testified that the bar owner and “his people”

dealt with the incident.

       {¶ 12} Andrea Anderson resided with Evans and his four children. She testified

that she was the primary caregiver for Evans’s children and had to be “the breadwinner”

when Evans was assaulted and could no longer work. She testified that on the night of

Evans’s injury, she observed Tommy and Amanda, Wright, and another female in

Connell’s bar; a couple of the individuals in that group left the bar before she and Evans

did. Anderson stated that, as she and Evans left the bar and approached their vehicle,

“there was about five or six of them that came out from behind the Jeep Liberty that was

parked” in the parking lot. She testified that she heard Tommy “hollering” at Evans and

asking if Evans “liked to hit women.” Anderson stated that Evans “verbally” defended

himself without raising his hands, and that at the same time she was “being confronted”

by Amanda, who was standing in between Anderson and Evans.

       {¶ 13} The following exchange occurred on direct examination:

              Q. Amanda was in your face, talking to you. And Ronnie [Evans]

       was dealing with two, maybe three other people, men, correct?

              A. Yes.

              Q. Were the men he was talking to larger than he was?

              A. Yes.
                                                                               -7-


       Q. Substantially?

       A. Yes.

       Q. Were you able to watch what has happening with Ronnie the

whole time that Amanda was talking to you?

       A. No, I was not. She was being more of a distraction to me.

       ***

       Q.    Was there a time that you were able to look over and see

Ronnie?

       A. Yes.

       Q. And what did you see?

       A. I seen him trying to resolve the conflict as best he could without

any physical altercation.   He was taking steps back to try to separate

himself from them. And that’s really all I did get to see.

       Q. And then * * * you turned your attention back to Amanda?

       A. Yes.

       Q. And then did you see something else when you turned around

and saw Ronnie again?

       A. He was on the ground.

       ***

       Q. Did you see anyone hit Ronnie?

       A. No, I did not.

       Q. Did you see anyone kick Ronnie when he was on the ground?

       A. No, but I did see * * * Tommy Mason try to kick him. But he was
                                                                                        -8-


       not close enough, so it did not make contact.

               ***

               Q. * * * And did you see anybody else around him try to kick him?

               A. No, I did not. They were all, at that point, trying to leave.

               ***

               Q. So the group that was around you and around Ronnie were moving

       pretty quickly to that Jeep?

               A. Yes.

       {¶ 14} Anderson testified that as Evans attempted to follow the Jeep, he was

“speaking out the letters and numbers on the license plate so that I could write it down.”

       {¶ 15} With respect to a prior incident, Anderson testified that on March 3, 2018,

Evans was working as a karaoke DJ at Carmichael’s Pub, and she observed “Amanda

Mason and [Evans’s] sister, Dawn * * * in a physical altercation * * * down by the bar.”

She stated that the DJ booth was in the front of the establishment and the bar was in the

back. Anderson testified that Evans did not leave the DJ booth in the course of the

altercation.

       {¶ 16} Officer Jacob Hemmelgarn of the Dayton Police Department testified that

he was on road patrol on April 8, 2018, when he was dispatched to MVH on the report of

an assault. When he arrived, Evans had been admitted, and Hemmelgarn proceeded to

his room. Hemmelgarn testified that Evans’s face was swollen and discolored, and that

he was having trouble speaking.          Hemmelgarn identified as State’s Exhibit 2 a

photograph taken by him of Evans’s face. Hemmelgarn testified that he remembered

hearing over the radio earlier in the evening that Officer Steven Quigney had been flagged
                                                                                             -9-


down while on duty, and Hemmelgarn called him and “was able to gather a license plate

* * * from the suspect vehicle,” which was a black 2004 Jeep.

       {¶ 17} Detective Nathan Via of the Dayton Police Department testified that he was

assigned to the homicide unit and was the lead detective on Evans’s assault case. Via

testified that he met Evans at the police department on April 11, 2018, and that Evans

was still in a lot of pain and his mouth was wired shut. Via testified that he identified Wright

as a suspect after speaking to Evans. Via interviewed Wright after advising him of his

rights. Via stated that Wright told him that he, Tommy and Amanda Mason, and Ashley

Vanderpool began their evening at Tommy’s home and then proceeded to Setter’s, where

the group was “thrown out” for underage drinking Via engaged in the following exchange

with the prosecutor:

              Q. * * * [W]hat did he tell you after that?

              A. They went to Connell’s Bar then. And upon arriving at Connell’s,

       they were inside and at that time, Amanda pointed out that Ronnie * * *

       Evans was in there at that time. The bartender did notice eventually that

       [Wright] looked like he was underage, so again, he was carded and tossed

       out of the bar.

              And when he left the bar, he went out to the parking lot and he sat in

       the Jeep that they’d come in. He began drinking some more. I believe

       they had a bottle, if I’m correct, of Crown Royal is what he’d said. * * *

       Amanda Mason came outside. And at some point, [Wright] got out of the

       vehicle. He walked up to [Evans] and struck him one time in the face with

       a closed fist. He said that [Evans] had made no advances toward him. He
                                                                                     -10-


      didn’t indicate that he had any kind of weapons.

            Q. And * * * he’s talking about Mr. Evans?

            A. He’s talking about [Evans].

            Q. Okay.

            A. Ronnie Evans. But that he had punched him one time in the

      face. He also stated that after that * * * the group left but he did not see

      anybody else kick, strike or do anything to [Evans], other than his one,

      single punch.

            Q. Did he indicate if Ronnie Evans ever threatened him before the

      punch?

            A. He stated that [Evans] had made a statement about getting some

      friends of his from a biker gang to defend him. But obviously those people

      were nowhere around and were not there that evening.

            Q. But he never threatened him with a weapon or anything?

            A. Correct.

            ***

            A. * * * [Wright] was very clear to me he did not see a weapon.

            ***

            Q. What about Tommy? Did he say if - - if Mr. Evans approached

      Tommy or if Tommy approached Mr. Evans?

            A. He said Tommy approached Mr. Evans.

      {¶ 18} Via identified photos taken by him of the Jeep parked in front of Tommy

Mason’s house, bearing the same license plate number as provided by Evans on the
                                                                                           -11-


night of his injury. Via testified that Wright was placed under arrest for assaulting Evans.

He also testified that Wright is over six feet tall and Evans is five feet seven inches tall.

       {¶ 19} Dr. Michael Monto of the Center for Facial and Oral Surgery testified that

he was “on staff through the plastic surgery department at [MVH] to do maxillofacial

trauma calls.” On April 8, 2018, he treated Evans, who had “mid-facial fractures in the

bones of his face.”     Monto stated that, with Evans’s type of injury, there can be

“permanent injuries resulting from the trauma,” so it was important to “stabilize his sort of

injuries sooner, rather than later,” to prevent long-term problems. Monto testified that,

prior to surgery, Evans was tested for drugs and alcohol, and that “it was a clean tox

screen.”

       {¶ 20} Monto testified that he performed surgery on Evans after performing a

comprehensive medical exam under anesthesia and reviewing his x-rays.                   Monto

testified that “[i]t’s usually a pretty significant blunt trauma that will cause this type of

injury.” He testified that he performed “an open reduction with internal fixation of his mid-

facial features.” Monto described that he made an incision inside Evans’s his mouth on

the left side, “from the back of the top jaw and carried it around, underneath the lip.”

Monto testified that “then we lift the tissue up to the level of his - right below his eyes,

inferior orbital rim, and down to the crest of the bone or the aveolar bone.” Monto stated

that Evans’s jaws were wired together “to give him a good bite, because his bite was not

reproduceable [sic] * * * the way his top jaw was broken.” According to Monto, the top

jaw was wired to the bottom jaw, then the bones were put “in good anatomic position,”

then “they’re held that way while plates and screws are secured to the bones to hold them

in place.” He stated the surgery lasted two to three hours, and that Evans was prescribed
                                                                                        -12-


medication for pain, inflammation, and infection when he was discharged.

      {¶ 21} Monto identified post-operative x-rays of Evans’s injuries. He testified that

“we saw him pretty much every week after the surgery, just to make sure that the incisions

were healing, that the wires were still tight, that the bones were in a good place, that he

was maintaining his nutrition, no signs of infection” for a period of six weeks. Monto

testified that, at six weeks, some of the braces, bolts, and wires were removed, while

others remained in place.      Monto stated that Evans experienced “post-operative

paresthesia or numbness” on the left side of his face, which was improving.

      {¶ 22} Finally, the following exchange occurred:

             Q. * * * Based on your training and experience and the patients that

      you’ve treated, could these injuries have been cause by a closed fist punch

      to the face?

             A. Yes. That’s what I would consider blunt force.

             ***

             Q. * * * There’s injuries to both the left and right side. Could these

      injuries have been caused by just being hit on one side?

             A. Yes.

             Q. And can you explain how that’s possible?

             A. With - - especially with the maxilla and mandible, the top and

      bottom jaw, the way that they’re formed, or they’re kind of U-shaped bones.

      And the mandible is more hollow. The maxilla is U-shaped with an arch,

      or a hard palette in the center. And the bone in the center is more dense.

      So you can be hit on one side and the denseness of the bone will prevent
                                                                                    -13-


the jaw from splitting in the middle. But the force will cause it to break on

the other side.

          So it’s very unusual, I would say, to have a single break in either the

top or bottom jaw. It’s almost always on both sides, just because of the

nature of the - - the density and design of those bones.

          Q. During the treatment of Mr. Evans, did you observe any pre-

existing condition that would have made him more acceptable [sic] to an

injury?

          ***

          A. So people who are smaller in stature tend to have thinner * * *

bone. People who are bigger in stature tend to have more dense, thicker

bone. So somebody who’s of smaller stature would be less likely to sustain

a blow without receiving significant injury than someone who’s of bigger

stature.

          Q. Would you consider Mr. Evans a person of smaller stature?

          A. I would, yes.

          ***

          Q. * * * Would you consider this type of break a common break for a

person who’s been punched in the face?

          A. I don’t know if I’d say common * * *. People get punched in the

face and they don’t necessarily break (indiscernible). So I think you have

to have a pretty significant punch to cause this sort of injury. So it wasn’t

like * * * a fleeting or glancing blow. It was a solid shot that – that did this.
                                                                                       -14-


             Q. So this injury was not a person who did a - - just a one punch to

      the face? This is - -

             A. Well, * * * it could’ve been one punch, but it would have to be a

      solid one punch.

             Q. So not someone who - - a quick jab?

             A. Right.

             Q. This would have required a substantial amount of force?

             A. Right.

      {¶ 23} At the conclusion of the State’s evidence, Wright moved for an acquittal and

the court overruled the motion.

      {¶ 24} Amanda then testified on behalf of Wright. Amanda testified that she and

Evans’s sister got into a fight before Evans’s injury, and that after their fight, Evans

“punched [her] in my right side of my eye.” She testified that Wright was her friend, that

she was with him on April 7, 2018, at Connell’s bar, along with Tommy, and Ashley

Vanderpool, and that Vanderpool owned the black jeep.          Amanda stated that she

observed Evans and Anderson arrive at Connell’s. She testified that she and Tommy

decided to leave, and as they were doing so, followed by Evans, Tommy commented to

Evans that he “heard you like to punch girls.” Amanda testified that Evans “charged”

them and threatened “that he was going to have his biker friends come and help him beat

up Tommy.”

      {¶ 25} Amanda testified that Wright then approached them “to see what was going

on,” and at the same time Evans charged toward Wright. Amanda stated that someone

yelled, “he has a knife”; when she turned around, she heard something behind her but
                                                                                       -15-


was unsure what it was, then saw Evans “sitting on the ground.” Amanda testified that

she extended her hand to Evans “and helped him up, and that was it. And everybody

went on their way.” She stated that no one else was around Evans when he was on the

ground. Amanda testified that Evans also told Wright that he was going to have his biker

friends come and beat Wright up; she stated that Wright appeared frightened, but she did

not see Wright put his hands on Evans and did not see anyone touch Evans at all,

because she had turned away.

      {¶ 26} On cross-examination, Amanda testified that Wright and Vanderpool left

Connell’s ahead of her and her brother.      She stated that Wright did not hit Evans,

because Wright “was in front of me the whole entire time.” Amanda testified that police

officers took statements after her alleged fight with Evans at Carmichael’s; she “told the

cops multiple times” that Evans had hit her, “but maybe because they thought [she] was

drunk,” they did not seem to believe her or thought she had the wrong person. She

stated that the officers who responded to Carmichael’s allowed Evans to “get in his truck

and drive off.” Amanda acknowledged that she chose not to file charges against Evans.

      {¶ 27} Tommy testified that he was with Wright on April 7, 2018, at Connell’s bar.

He stated that, when Evans entered the bar, he recognized Evans as the “guy that

punched my sister.” Tommy testified that, at the time, he (Tommy) had just had casts

removed from both of his elbows. According to Tommy, when he confronted Evans

about hitting his sister, Evans said “he was going to get both of his sons to beat [Tommy]

up.” Evans was getting loud and put his hand in his hoodie pocket, “like he’s grabbing a

knife or something,” whereupon Wright, who knew that both of Tommy’s elbows had been

broken, “must have got scared or something” and punched Evans. Tommy testified that
                                                                                          -16-


the punch “wasn’t hard at all” and that his group left because they saw the “cops.”

       {¶ 28} Wright, age 20, testified that he was at Connell’s bar with Tommy and

Amanda Mason and Tommy’s girlfriend, Ashley, on April 7, 2018. He testified that, while

playing pool there, he became very dizzy and asked Amanda to take his place in the

game. He then observed Evans and Andrea Anderson enter the bar and go back into

the corner. Wright testified that, as he sat down, the person who ran the bar came and

asked for identification from his group. Wright testified, “that’s when I looked at Tommy

and said, I left my ID at your house. I’m already too drunk.” According to Wright, Ashley

then suggested that they “take more shots of Crown into [sic] the Jeep.” Wright stated

that he, Ashley, and another girl named Destiny proceeded to the Jeep and got inside; he

was in the backseat. Ashley and Destiny did shots, and “then as they passed it back to

me, I just heard a bunch of yelling.” He testified that Ashley stated, “I think Tommy’s

about to get into a fight.”

       {¶ 29} Wright testified that Ashley opened the back door and said “come with me,

we got to see what’s going on.” Wright testified that he approached Evans, Anderson,

Tommy, and Amanda in the parking lot; he stood behind Tommy “to see what was going

on, because [he] didn’t want to get into the mix.” According to Wright, “that’s when

[Evans] stopped talking to Tommy * * * and * * * tried to start coming after me and * * *

intimidating me in a way”; Evans said, “you’re all trying to jump me, or something like that.

* * * And he said, hold on here a second, and that’s when he had went like this, put his

hand in his pocket, and walked up to me. And he was about * * * nose to nose with me

and was like, * * * I’ve got the renegades to come up here and put you down.”

       {¶ 30} Wright testified that he was scared and that, “when spit’s coming in your
                                                                                         -17-


face from somebody else, they’re too close.” Evans’s hand was “fidgeting in his pocket”

and someone yelled, “he has a knife.” Then Wright punched Evans and ran back to the

car. Wright testified that he is left-handed and punched Evans with his left hand, and

that Evans “fell straight back” and “was perfectly fine.” According to Wright, he observed

Evans sitting up on the ground, and he “didn’t even look like he was messed up.” When

asked what he intended to do in hitting Evans, Wright responded, “I felt like if I pushed

him, * * * if he did have a knife * * * he could have gutted me in my stomach; I didn’t want

that to happen.” Wright recounted that “the same stuff” (a bar fight) had happened in

2000 with his uncle, who ended up paralyzed and later died. Wright testified that he was

“in fear for my life, and others,” and “didn’t want to end up like how [his] uncle did, or

anybody else end up hurt.” Wight testified, “I did what I had to do to get out of there.”

       {¶ 31} Wright testified that, as the Jeep left the scene, he heard Tommy say, “we

just beat his ass.” From the rearview mirror, Tommy then observed Evans stopping a

police officer, and Tommy told Wright, “get out and you’re on your own; figure it out.”

Wright responded, “what am I supposed to do? I don’t know what to do, I’m drunk.”

Tommy and Ashley “took off,” and Wright walked to his dad’s house.

       {¶ 32} Wright testified that he did not observe Tommy do anything to Evans, and

that he told a detective “the whole story that happened,” including that Evans had

threatened him and that he was “scared for his life.” Wright testified that he did not have

any fighting experience or training. He testified that, in striking Evans, he used “basically

enough force to knock him back” so he (Wright) could get away. Wright testified that he

did not kick or punch Evans while he was on the ground. Wright testified that he was six

feet tall “with shoes,” and weighed 160-65 pounds. Wright testified that he did not
                                                                                       -18-


anticipate that his punch could have caused Evans’s injuries, and that he did not believe

he had caused them. Wright stated that he had been honest in admitting his involvement

to Via and that he had not wanted to get Tommy in trouble.

      {¶ 33} On cross-examination, Wright testified that while he was sitting after asking

Amanda to take his place in the pool game, he overheard Amanda whisper to Tommy,

“that’s the person that hit me in the face.” He testified that he had not previously known

what Evans did to Amanda. He stated that, when he ran back to the Jeep after hitting

Evans, and “looked back, they was all in a circle around [Evans]. So * * * they could

have been stomping his head in and I couldn’t of seen it.”

      {¶ 34} At the conclusion of the testimony, the following exchange occurred:

             [DEFENSE COUNSEL]: * * * The defendant is requesting that this

      Court provide a jury with instructions on the lesser offense of aggravated

      assault as well misdemeanor assault. And with regard to misdemeanor

      assault we believe that the jury could conclude that Mr. Wright either

      knowingly caused or attempted to cause just physical harm or that he may

      have recklessly caused serious physical harm which would make it a

      misdemeanor of the first degree. * * *

             ***

             Your Honor, we’re asking for the instruction on aggravated assault

      based on my client’s testimony that the victim had gotten in his face;

      threatened him. He was in fear for his life at the time. He was upset and

      the victim was spitting in his face and my client, acting in the heat of the

      passion, punched the victim. * * *
                                                                                        -19-


              ***

              THE COURT: There was no sudden rage or passion that anybody

       testified to which is required for aggravated assault and so that’s overruled.

       Simple assault, the request is also overruled based upon the Court’s finding

       in State v. Underwood[, 2d Dist. Montgomery No. 26711, 2016-Ohio-1101].

       ***

              ***

              * * * In this case there is evidence that the - - no evidence that the

       defendant acted recklessly and there is evidence that the act caused

       serious physical harm. * * *

       {¶ 35} The court instructed the jury on complicity, over Wright’s objection, and on

affirmative defense of self-defense, over the State’s objection.

       {¶ 36} The jury found Wright guilty of felonious assault (serious physical harm) as

charged in the indictment, and he was sentenced to two years in prison.

       {¶ 37} Wright asserts two assignments of error on appeal. His first assignment of

error is as follows:

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       REFUSED TO GIVE A JURY INSTRUCTION ON THE LESSER

       INCLUDED OFFENSE[S] OF ASSAULT AND AGGRAVATED ASSAULT.

       {¶ 38} Wright asserts that, if the jury been instructed on assault, it might have

found that he did not cause serious physical harm knowingly but caused it recklessly,

under R.C. 2903.13(B), which defines assault. Therefore, he claims that the trial court

erred when it relied on Underwood, which involved R.C. 2903.13(A) rather than (B), in
                                                                                         -20-


determining that an instruction on assault was not proper. Similarly, Wright asserts that

the trial court’s refusal to give a lesser-included offense instruction on aggravated assault

was erroneous, because the elements of felonious assault are identical to the elements

of aggravated assault, except that aggravated assault has an additional mitigating

element. Wright argues that he presented evidence that Evans had threatened him with

bodily harm “while he was so close that he was spitting on him,” and a jury could have

concluded that Evans’s provocation “was enough to arouse [Wright’s] passions * * *

beyond his power of his control.” Wright asserts that the facts in this case are analogous

to those in State v. McCleod, 7th Dist. Jefferson No. 00 JE 8, 2001 WL 1647305.

       {¶ 39} The State responds as follows:

              * * * Wright admitted to intentionally punching Evans in the face.

       The testimony established that Wright was nearly five inches taller than

       Evans and several pounds heavier. Additionally, Wright testified to having

       consumed a significant amount of alcohol that night, * * * as well as being

       angry at Evans for his alleged encounter with Amanda. Based upon all the

       evidence, the jury could find that the serious physical harm suffered was a

       reasonable consequence of Wright’s assault.           Because the issue of

       Wright’s intent to punch Evans was not contested, the jury could not

       reasonably find that Wright acted recklessly. Thus, he was not entitled to

       the instruction on simple assault.

              While Wright also requested an instruction on assault under R.C.

       2903.13(A), the trial court correctly denied this request as well.        The

       difference between felonious assault and misdemeanor assault under
                                                                                         -21-


       subsection (A) is whether the harm is serious or not. While Wright’s defense

       throughout the trial was self-defense and he wasn’t the one who caused all

       the harm to Evans, he did not deny that Evans suffered serious injuries.

       {¶ 40} Regarding an instruction on aggravated assault, the State notes that “Wright

never testified to any fit of rage or passion, only that he was scared of Evans and the

threats he was making. Simply being scared is not enough to establish the required

provocation.” The State asserts that Evans testified that he never yelled at anyone and

was backing away while being confronted by the group; his testimony was corroborated

by Anderson’s testimony that “Evans did not yell or threaten anyone.”

       {¶ 41} R.C. 2903.11 proscribes felonious assault and provides: “(A) No person

shall knowingly * * * (1) Cause serious physical harm to another * * *.”

       {¶ 42} R.C. 2903.12 proscribes aggravated assault and provides: “(A) No person,

while under the influence of sudden passion or in a sudden fit of rage, either of which is

brought on by serious provocation occasioned by the victim that is reasonably sufficient

to incite the person into using deadly force, shall knowingly: (1) Cause serious physical

harm to another * * *.”

       {¶ 43} R.C. 2903.13 proscribes assault and provides: “(A) No person shall

knowingly cause or attempt to cause physical harm to another * * *. (B) No person shall

recklessly cause serious physical harm to another * * *.”

       {¶ 44} R.C. 2901.22 provides in relevant part:

              (B) A person acts knowingly, regardless of purpose, when the person

       is aware that the person's conduct will probably cause a certain result or will

       probably be of a certain nature. A person has knowledge of circumstances
                                                                                          -22-


       when the person is aware that such circumstances probably exist. When

       knowledge of the existence of a particular fact is an element of an offense,

       such knowledge is established if a person subjectively believes that there is

       a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

               (C) A person acts recklessly when, with heedless indifference to the

       consequences, the person disregards a substantial and unjustifiable risk

       that the person's conduct is likely to cause a certain result or is likely to be

       of a certain nature. A person is reckless with respect to circumstances

       when, with heedless indifference to the consequences, the person

       disregards a substantial and unjustifiable risk that such circumstances are

       likely to exist.

       {¶ 45} R.C. 2901.01(A)(3) defines physical harm to persons as “any injury, illness,

or other physiological impairment, regardless of its gravity or duration.”

       {¶ 46} R.C.2901.01(A)(5) defines serious physical harm in part as follows:

               ***

               (c) Any physical harm that involves some permanent incapacity,

       whether partial or total, or that involves some temporary, substantial

       incapacity;

               (d) Any physical harm that involves some permanent disfigurement

       or that involves some temporary, serious disfigurement;

               (e) Any physical harm that involves acute pain of such duration as to

       result in substantial suffering or that involves any degree of prolonged or
                                                                                         -23-


       intractable pain.

       {¶ 47} In Underwood, 2d Dist. Montgomery No. 26711, 2016-Ohio-1101, upon

which the trial court relied, this court observed:

               The only difference between Felonious Assault under R.C.

       2903.11(A)(1), and misdemeanor Assault under R.C. 2903.13(A), is

       whether the harm caused was serious physical harm, as opposed to non-

       serious physical harm. The difference between Felonious Assault under

       R.C. 2903.11(A)(1), and misdemeanor Assault under R.C. 2903.13(B) is the

       culpable mental state – for Felonious Assault the evidence must establish

       that the defendant acted knowingly, but for a simple Assault the evidence

       need only prove that the defendant acted recklessly. Both offenses require

       that the act caused serious physical harm.

Id. at ¶ 17.

       {¶ 48} In McCleod, 7th Dist. Jefferson No. 00 JE 8, 2001 WL 1647305, to which

Wright directs our attention, a dispute arose after McCleod attempted to return a keyless

remote control transmitter he had purchased, and the store manager told him that he had

to send it to the manufacturer for repair. Id. at *1. McCleod left the store, but later

returned, which is when the assault occurred. Id. McCleod admitted to punching the

victim once in the face, and the victim testified that McCleod also kicked him after he fell

down and “provoked him by using a racial epithet.” Id. The victim’s treating physician

testified that he suffered “facial bruising, bleeding, swelling, and a nondisplaced fracture

of the orbital floor.” Id. On appeal, McCleod argued that the court had erred in failing

to instruct the jury on aggravated assault and the lesser included offense of assault. Id.
                                                                                      -24-


McCleod was convicted of felonious assault. Id.

      {¶ 49} The Seventh District noted that aggravated assault is an inferior degree

offense of felonious assault, “except for the additional mitigating element of passion or

rage.” McCleod at *2, citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph

four of syllabus. The Seventh District determined that, in a trial regarding felonious

assault, “where the defendant presents sufficient evidence of serious provocation, an

instruction on aggravated assault must be given to the jury.” Id., citing Deem. The

Court noted that Deem defined serious provocation as follows:

             Provocation, to be serious, must be reasonably sufficient to bring on

      extreme stress and the provocation must be reasonably sufficient to incite

      or to arouse the defendant into using deadly force. In determining whether

      the provocation was reasonably sufficient to incite the defendant into using

      deadly force, the court must consider the emotional and mental state of the

      defendant and the conditions and circumstances that surrounded him at the

      time. * * *

Id., quoting Deem at paragraph five of syllabus.

      {¶ 50} The Seventh District further noted:

             Simple assault is a lesser included offense of felonious assault.

      State v. Hartman (1998), 130 Ohio App.3d 645, 647. “[A jury] charge on

      such lesser included offense is required only where the evidence presented

      at trial would reasonably support both an acquittal on the crime charged and

      a conviction upon the lesser included offense.” State v. Thomas (1988), 40

      Ohio St.3d 213, paragraph two of syllabus.
                                                                                           -25-


Id. at *3.

        {¶ 51} The Court noted that the only evidence to support a conclusion that

McCleod was provoked by a sudden rage or passion was McCleod’s testimony that the

victim used the racial epithet “n*****.” Id. It was significant to the Court that “[g]enerally,

words alone, even racially charged words, will not constitute sufficient provocation to

incite the use of deadly force. * * *.” Id. The Court noted that the record did not contain

any other evidence sufficient to create a jury question on the issue of provocation, and

“[b]ecause there [was] insufficient evidence to raise the issue of provocation, the trial court

properly refused to instruct the jury on aggravated assault.”

        {¶ 52} Regarding simple assault, the court noted as follows:

              The circumstances are quite different, though, as far as the need to

        instruct the jury on simple assault. The instruction would be warranted if

        the jury could reasonably find that Appellant recklessly, rather than

        knowingly, caused serious physical harm; or that he knowingly caused or

        attempted to cause mere physical harm, rather than serious physical harm.

Id.

        {¶ 53} The Seventh District concluded as follows:

              A reasonable jury could have acquitted Appellant of felonious assault

        because it is not clear that he was aware that one punch, and possibly a

        kick, would certainly or likely result in the type of serious injury which

        occurred. Appellant’s “sucker punch,” as it was described in testimony

        * * *, appears to be more likely an act of recklessness, which is an element

        of simple assault rather than felonious assault. See State v. McFadden
                                                                                            -26-


      (Nov. 21, 1995), Franklin App. No. 95APA03-384, unreported (single, blind-

      side punch to head which caused victim’s death was treated as reckless act

      in trial for felonious assault).   Because the evidence could reasonably

      support a conviction for either felonious assault or simple assault, the trial

      court was required to instruct the jury on the lesser included offense of

      simple assault.

The Court reversed McCleod’s conviction.

      {¶ 54} As this Court has noted:

             A trial court's decision to give or to withhold particular jury instructions

      is reviewed for an abuse of discretion. State v. Pendleton, 2d Dist. Clark No.

      2017-CA-17, 2018-Ohio-3199, ¶ 44, citing State v. Underwood, 2d Dist.

      Montgomery No. 26711, 2016-Ohio-1101, ¶ 9.                      The facts and

      circumstances of the case are relevant in determining whether a trial court

      abused its discretion in giving a particular instruction. State v. Grissom, 2d

      Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 30, citing State v. Fair, 2d

      Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 65. “A trial court abuses

      its discretion when it makes a decision that is unreasonable,

      unconscionable, or arbitrary.” Id., citing State v. Darmond, 135 Ohio St.3d

      343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “An abuse of discretion includes

      a situation in which the trial court did not engage in a ‘sound reasoning

      process.’ ” Id., quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

      2407, 972 N.E.2d 528, ¶ 14; see also Underwood at ¶ 9 (abuse of discretion

      includes decisions that are “grossly unsound, unreasonable, illegal, or
                                                                                           -27-


       unsupported by the evidence”).

State v. Gibson, 2d Dist. Clark No. 2018-CA-36, 2019-Ohio-1022, ¶ 22.

       {¶ 55} We conclude that the trial court did not abuse its discretion in instructing the

jury herein. We initially find that the testimony of Evans and Dr. Monto regarding the

extent of Evans’s injuries and enduring pain established that Evans suffered serious

physical harm as a result of being punched by Wright, and not non-serious physical harm.

       {¶ 56} We agree with the trial court that no one testified about the existence of the

type of sudden rage or passion which is required for aggravated assault.               Wright

approached a confrontation between Tommy and Evans, to which he was not a party.

Wright was not acquainted with Evans. While Wright testified that Evans threatened to

have a biker gang come to Evans’s defense, as Detective Via testified, “obviously those

people were nowhere around and were not there that evening.” Tommy and Wright

outnumbered Evans. While Wright testified that he was in fear for his life and for others,

“[f]ear alone is insufficient to demonstrate the kind of emotional state necessary to

constitute sudden passion or fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201, 694

N.E.2d 1328 (1998). Based upon the foregoing, and in the absence of evidence of

sudden passion or a sudden fit of rage, the trial court did not abuse its discretion in failing

to instruct the jury on aggravated assault.

       {¶ 57} Regarding an instruction on assault in violation of R.C. 2903.13(B), we

cannot find that the evidence could have supported a conclusion that Wright acted

recklessly in assaulting Evans. McCleod is distinguishable, in that McCleod was directly

angry at his victim and punched him in an immediate manner in the course of their dispute.

There was no discussion of the size of the men in McCleod, but Evans was substantially
                                                                                          -28-


smaller than Wright in height and weight. Wright was also 20 years Evans’s junior.

Wright and Evans were strangers and, as noted above, the evidence was clear that

Tommy’s confrontation of Evans did not involve Wright. Rather than remaining in the

Jeep, Wright, who testified that he was drunk, exited the vehicle and approached the

confrontation. Wright testified that he punched Evans intentionally with his dominant

hand. Evans testified that he was pleading his innocence to Tommy at the time. The

evidence clearly shows a causal connection between Wright’s conduct and Evans’s

injury, and Monto testified that the extent of Evans’s injury was consistent with blunt force

from a closed-fist punch. Under these circumstances, we conclude that Wright acted

knowingly in deliberately exiting the Jeep, and in approaching and assaulting Evans,

whom he did not know. The trial court did not abuse its discretion in instructing the jury

only on felonious assault.    This conclusion is supported by our analysis of Wright’s

assertion of the defense of self-defense, as discussed below, in that Wright cannot have

it both ways: arguing that he acted recklessly by leaving the Jeep, approaching Evans,

and assaulting him, but that he was not at fault in creating the violent situation and had a

bona fide belief that he was in imminent danger of bodily harm.

       {¶ 58} Based upon the foregoing, Wright’s first assignment of error is overruled.

       {¶ 59} Wright’s second assignment of error is as follows:

              THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

       CONVICT THE DEFENDANT AND HIS CONVICTION WAS AGAINST

       THE WEIGHT OF THE EVIDENCE.

       {¶ 60} According to Wright, the testimony of Evans established that not only was

Evans punched by Wright, but he also sustained multiple kicks from others while on the
                                                                                         -29-


ground. Wright argues that it “was clear from Tommy’s testimony that he wanted to

assault Evans for revenge,” but he was limited in what he could do because he had just

had both arms removed from casts. According to Wright, Evans testified that Tommy

kicked him many times, and that Amanda testified that she observed Tommy attempt to

kick Evans while he was on the ground. Wright also asserts that, when Tommy returned

to the car, he stated they had just “beat his ass,” referring to Evans. Wright argues that

this evidence showed that the others, particularly Tommy, caused Evans’s serious injury.

      {¶ 61} Moreover, Wright asserts that the evidence did not show that the he had

aided and abetted Tommy in injuring Evans. According to Wright, the “evidence did not

prove that [he] encouraged or supported Tommy”; rather, Wright defended himself and

then removed himself from Evans. Wright asserts that the injuries caused by Tommy

and the others happened after he left Evans, and there was no evidence that he involved

himself in any way with what they did.

      {¶ 62} Finally, Wright argues that the jury lost its way in finding him guilty, because

the evidence proved he acted in self-defense. Wright asserts that he and Amanda both

testified that when Wright approached Evans, Evans left Tommy and “got in [Wright’s

face,” Evans made threats to bring a biker gang to “put him down,” and Evans made

similar threats to Tommy and Amanda.         According to Wright, Tommy and Amanda

testified that Wright “looked scared during his encounter with Evans.” Wright argues that

he, Amanda, Tommy all testified that someone had yelled that Evans had a knife, and

only then did Wright punch Evans one time. Wright asserts that “fear of Evans cutting

him, something that had happened to his uncle, was the sole reason he used force,” and

he retreated to the Jeep immediately thereafter. Wright asserts that he was not at fault
                                                                                        -30-


in creating the situation that led to his punch, because Evans and Tommy were already

arguing when he approached, and that he had “a bona fide belief that he was in imminent

danger of bodily harm” and that he “had no time to remove himself” without using force.

       {¶ 63} The State responds that, while Evans “was unable to state who kicked him,

he stated he was positive that Wright was the individual who punched him.” The State

notes that Anderson testified that Wright was the only person to strike Evans and that,

although Tommy had tried to kick Evans, he had missed. The State points out that the

only person who testified about an additional assault was Evans himself, who testified

that he could not tell who was kicking him. Further, Dr. Monto testified that, based upon

his training and experience, the injuries suffered by Evans could have been caused by a

single closed fist hit to the face. According to the State, “it was reasonable for the jury

to believe that the injuries were cause[d] solely by Wright’s punch.”

       {¶ 64} The State asserts:

              * * * Wright’s own testimony shows that he was acting to assist or

       support another, namely Tommy, when he punched Evans.               Tommy,

       Amanda, and Wright all testified that Tommy was angry at Evans, and

       wanted to engage him for what Evans allegedly did to Amanda a month

       prior. However, all three agreed, Tommy couldn’t do anything because he

       had just had surgery on both elbows, and had limited movement of his arms.

       Wright admitted to knowing this, and even testified that he went up to the

       group after he noticed Tommy and Evans arguing.            Based upon the

       evidence, it is reasonable that the jury could find that Wright acted as an

       aider and abettor when he struck Evans.
                                                                                        -31-


              Were the jury to find that Wright acted as an aider and abettor,

       instead of a principal offender, that decision was supported by Wright’s

       testimony about joining the argument, thinking Tommy was about to get into

       a fight. Regardless of what occurred after the assault, the jury could have

       reasonably found that Wright joined the group and punched Evans with the

       goal of helping Tommy fight Evans.

       {¶ 65} Finally, the State asserts that Wright’s assertion of self-defense failed by

way of his own testimony: Wright testified that he was already in the Jeep when Tommy

and Evans began arguing, and Wright observed this argument and got out of the Jeep

and ran up to the group. The State asserts that, regardless of whether the jury believed

that Evans began to yell and threaten Wright, no one testified that Wright was backed into

a corner or prevented from leaving. According to the State, Wright’s “own testimony

showed that he ran up to the group voluntarily, and after punching Evans, left and returned

to the Jeep under his own power. This shows * * * that had Wright truly been fearful of

imminent harm, he violated his duty to retreat and was not prevented from doing so by

Evans.”

       {¶ 66} The State argues that the self-defense argument “came down to issues of

credibility for the jury”: based on the testimony presented, the jury could have reasonably

found that Wright initiated the confrontation, that he could have retreated prior to the

assault, and that he had not been not in fear of imminent danger. Therefore, the jury

could have reasonably found that Wright’s self-defense claim was not credible.

       {¶ 67} This Court has previously noted:

              When a conviction is challenged as being against the weight of the
                                                                                       -32-


      evidence, an appellate court must review the entire record, weigh the

      evidence and all reasonable inferences, consider witness credibility, 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.

      Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In a manifest-

      weight analysis, the credibility of the witnesses and the weight to be given

      to their testimony are primarily for the trier of fac[t] to resolve. State v.

      DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder

      * * * has the opportunity to see and hear the witnesses, the cautious

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

      is against the manifest weight of the evidence requires that a substantial

      deference be extended to the factfinder's determinations of credibility. The

      decision whether, and to what extent, to credit the testimony of particular

      witnesses is within the peculiar competence of the factfinder, who has seen

      and heard the witnesses.”     State v. Lawson, 2d Dist. Montgomery No.

      16288, 1997 WL 477684, *5 (Aug. 22, 1997). This court will not substitute

      its judgment for that of the trier of fact on the issue of witness credibility

      unless it is patently apparent that the trier of fact lost its way. State v.

      Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24,

      1997). * * *

State v. Nelson, 2d Dist. Greene No. 2014-CA-7, 2015-Ohio-113, ¶ 29.

      {¶ 68} Regarding the sufficiency of the evidence, this Court has previously stated:
                                                                                         -33-


              “A sufficiency of the evidence argument disputes whether the State

       has presented adequate evidence on each element of the offense to allow

       the case to go to the jury or sustain the verdict as a matter of law.” State v.

       Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State

       v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). When reviewing

       whether the State has presented sufficient evidence to support a conviction,

       “the relevant inquiry is whether any rational finder of fact, after viewing the

       evidence in the light most favorable to the State, could have found the

       essential elements of the crime proven beyond a reasonable doubt.” State

       v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jackson

       v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A

       guilty verdict will not be disturbed on appeal unless, “reasonable minds

       could not reach the conclusion reached by the trier-of-fact.” Id.

State v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6.

       {¶ 69} As the State asserts, Wright “argues three specific instances where he

claims the evidence did not support the verdict.” Wright argues that the evidence does

not support the identification of Wright as Evans’s assailant, that the evidence does not

support a “finding that he aided and abetted Tommy in assaulting Evans,” and “that the

jury lost its way by not accepting his assertion of self-defense.”

                                   I. Identity

       {¶ 70} Evans clearly identified Wright as his assailant.      He testified that after

falling to the ground upon the impact of Wright’s punch, he covered his face with his hands

and “received a couple kicks.” We conclude that Wright mischaracterizes the record
                                                                                         -34-


when he asserts that “Evans testified that Tommy * * * kicked him many times.” This

conclusion is supported by Anderson’s testimony that she observed Tommy try to kick

Evans and miss before the group departed the scene. Detective Via testified that he

developed Wright as a suspect after speaking to Evans, and the version of events that

Wright related to Via in the course of his interview, as testified to by Via, was consistent

with Evans’s testimony that Tommy initially confronted him, and Wright approached

Evans and hit him one time in the face. We conclude that the identification of Wright as

Evans’s assailant was supported by sufficient evidence and was not against the manifest

weight of the evidence.

                                        II. Complicity

       {¶ 71} R.C. 2923.03, the complicity statute, provides: “(A) No person, acting with

the kind of culpability required for the commission of an offense, shall do any of the

following: * * * (2) Aid or abet another in committing the offense.”

       {¶ 72} As this Court has noted

              R.C. 2923.03 provides that a defendant who joins with another to

       commit an offense may be charged as a principal offender.            State v.

       Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 21; see also

       State v. Hancher, 2d Dist. Montgomery No. 23515, 2010-Ohio-2507, ¶ 5,

       citing R.C. 2923.03(F). (“A person who is complicit in an offense may be

       charged and punished as if he were the principal offender, and a charge of

       complicity may be stated * * * in terms of the principal offense.”). “ ‘To

       support a conviction for complicity by aiding and abetting pursuant to R.C.

       2923.03(A)(2), the evidence must show that the defendant supported,
                                                                                         -35-


      assisted, encouraged, cooperated with, advised, or incited the principal in

      the commission of the crime, and that the defendant shared the criminal

      intent of the principal.’ ” Hancher at ¶ 5, quoting State v. Johnson, 93 Ohio

      St.3d 240, 245, 754 N.E.2d 796 (2001); State v. Wilson, 2d Dist.

      Montgomery No. 22581, 2009-Ohio-525, ¶ 27. The requisite criminal intent

      may be inferred from the circumstances of the crime, id., including from

      “presence, companionship and conduct before and after the offense is

      committed.” Grissom at ¶ 21, quoting Johnson at 245.          “An aider and

      abettor is ‘punished as if he were a principal offender.’ ” Id., quoting R.C.

      2923.03(F).

State v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, ¶ 43.

      {¶ 73} We further find that a reasonable juror could have concluded that Wright

acted to support, assist, or encourage Tommy, his friend and companion.               Wright

testified that while in the Jeep, he heard yelling, and Ashley advised him that “Tommy’s

about to get into a fight.” As discussed above, Wright, who did not know Evans, testified

that he left the Jeep and approached the confrontation that Tommy began with Evans,

ultimately punching Evans before fleeing with Tommy in the Jeep. As the State asserts,

were “the jury to find that Wright acted as an aider and abettor, instead of a principle

offender, that decision was supported by Wright’s testimony about joining the argument,

thinking Tommy was about to get into a fight.” We conclude that Wright’s conviction,

whether as the principal offender or an aider and abettor, was supported by sufficient

evidence and was not against the manifest weight of the evidence.

                                    III. Self-defense
                                                                                   -36-


{¶ 74} As this Court has previously noted:

       * * * “ ‘Self-defense is an affirmative defense, which means that the

burden of going forward is on the defendant who must prove each element

by a preponderance of the evidence.’ ” State v. Oates, 2013-Ohio-2609,

993 N.E.2d 846, ¶ 10 (3d Dist.), quoting State v.Kimmell, 3d Dist. Wyandot

No. 16-10-06, 2011-Ohio-660, ¶ 19. (Other citations omitted.) “Affirmative

defenses such as self-defense ‘ “do not seek to negate any elements of the

offense which the State is required to prove” but rather they “admit[ ] the

facts claimed by the prosecution and then rel[y] on independent facts or

circumstances which the defendant claims exempt him from liability.” ’ ” Id.

at ¶ 10, quoting State v. Smith, 3d Dist. Logan No. 8-12-05, 2013-Ohio-746,

¶ 32, , quoting State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986).

       To establish self-defense, a defendant must introduce evidence

showing that: (1) he was not at fault in creating the violent situation; (2) he

had a bona fide belief that he was in imminent danger of bodily harm; and

(3) he did not violate any duty to retreat or avoid the danger. State v.

Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997), citing State v.

Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). (Other citation

omitted.) Therefore, “[t]o support a claim for self-defense, a defendant must

demonstrate that he acted out of fear, or he felt that his life was threatened.”

State v. Crawford, 2d Dist. Montgomery No. 22314, 2008-Ohio-4008, ¶ 26.

In instances where less than deadly force is used, the defendant need only

show a fear of bodily harm, not of death or great bodily harm. State v. Gee,
                                                                                        -37-


      2d Dist. Miami No. 87-CA-22, 1987 WL 20260, *2 (Nov. 17, 1987); State v.

      Perez, 72 Ohio App.3d 468, 594 N.E.2d 1041 (10th Dist. 1991).

State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 23-24 (2d Dist.).2

      {¶ 75} Finally, we agree with the State that “Wright’s assertion of self-defense

failed by way of his own testimony.” In other words, construing the evidence in a light

most favorable to the State, we conclude that Wright failed to establish independent facts

or circumstances which exempt him from liability. As noted above, Wright was in the

Jeep when Tommy confronted Evans, whom Wright did not know. Evans’s testimony

was consistent with the version of events related by Wright to Detective Via, that Wright

punched him in the face. Wright was younger and substantially heavier and taller than

Evans. Given their difference in size, and the fact that Evans was outnumbered two to

one by Tommy and Wright, we conclude that the jury could have reasonably discredited

Wright’s testimony that Evans stood “nose to nose with me” in an intimidating manner

causing Wright to fear for his life. The jury clearly credited Evans’s testimony, and we

defer to the jury’s assessment of credibility. Evans testified that he was not armed, that

he did not imply that he had a weapon, and that he pled his innocence to Tommy. Via

testified that Wright told him that Evans “had made no advances toward him,” and that

Wright “was very clear to me that he did not see a weapon.” We find that the jury could

have reasonably concluded that Wright was at fault in creating the violent situation by

leaving the Jeep, approaching Evans, and punching him, and that he did not have a bona



2
  We note that Am.Sub.H.B. 228, which was effective on March 28, 2019, amended R.C.
2901.05(B)(1), switching the burden of proof with respect to a claim of self-defense from
the defendant to the State. At the time of Wright’s trial, the burden of proof with respect
to a claim of self-defense was on the defendant.
                                                                                        -38-


fide belief that he was in imminent danger of bodily harm under these circumstances.

We further agree with the State that “the jury could reasonably find, that had Wright truly

been fearful of imminent harm, he violated his duty to retreat and was not prevented from

doing so by Evans.”

      {¶ 76} Having reviewed the entire record, construing the evidence in a light most

favorable to the State, and deferring to the jury’s clear assessment of credibility, we

conclude that Wright’s conviction for felonious assault was supported by sufficient

evidence and was not against the manifest weigh of the evidence. Wright’s second

assignment of error is overruled.

      {¶ 77} The judgment of the trial court is affirmed.

                                     .............



FROELICH, J. and HALL, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
William O. Cass, Jr.
Hon. Gregory F. Singer
