[Cite as State v. Williams, 2013-Ohio-1297.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2012-T-0002
        - vs -                                  :

JOSHUA ALLEN WILLIAMS,                          :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 10 CR
793.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     After trial by jury, appellant Joshua A. Williams, was convicted of felony

domestic violence. He now appeals, inter alia, the judgment of conviction entered by

the Trumbull County Court of Common Pleas. We affirm.

        {¶2}     In October 2010, appellant, his girlfriend, Ashley Buskirk (“Ashley”), and

the couple’s three-year-old daughter lived together in a small trailer in Vienna Township.

Appellant and his friend, Ryan Castle, left a construction job in Columbus, Ohio early,

on October 22, 2010, to surprise Ashley. On the way, appellant purchased four cans of
Sparks, a malt liquor beverage, which he and his counterpart consumed while driving to

Vienna. At approximately 11:30 a.m., appellant and Ryan arrived at the trailer. Ashley

was getting ready to go to the mall and meet a friend. Appellant became immediately

upset because, according to him, Ashley lied when she had previously told him she had

no plans for the day.

       {¶3}   With the couple’s three-year-old looking on, appellant hurled various

imprecations and insults at Ashley and ultimately demanded she leave the trailer.

When Ryan urged appellant to calm down, appellant questioned why Ryan was

“defending this whore.” In an effort to diffuse the situation, Ryan placed his hand on

appellant’s shoulder; appellant, however, wrestled his friend to the ground and placed a

choke hold around his neck. During this skirmish, Ashley struck appellant multiple times

in an effort to stop the attack. Appellant ultimately released Ryan from the choke.

Following the scrum, Ashley threw her ring at appellant and went to her bedroom to

pack her toiletries and clothes.

       {¶4}   Appellant followed Ashley into the trailer’s hallway and a shoving match

ensued. Ashley intended on leaving with the couple’s daughter, but appellant blocked

Ashley’s exit.   Ashley pushed appellant who responded in kind. As the physicality

increased, Ashley entreated Ryan to call 911. As he was under-age and intoxicated,

however, Ryan ignored the plea and left the trailer. Appellant eventually shoved Ashley

into the bedroom where she stumbled backward onto the bed. Appellant then crawled

on top of Ashley and applied two separate chokes to her throat. While struggling to

break appellant’s restraint, Ashley kicked appellant in the head. Appellant released his

grip and Ashley left the bedroom. Ashley retrieved the couple’s daughter and went to

her car with appellant in tow. As Ashley placed the young girl in her car seat, appellant


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confronted Ashley and applied a third choke to her throat. Appellant then seized the

couple’s daughter as Ashley kicked appellant in the lower leg several times. Appellant

returned to the trailer with the couple’s daughter while Ashley left with the intention of

speaking to police.

      {¶5}   When Ashley arrived at the Vienna Township Fire Station, which is located

near the police station, she was visibly shaken and upset. Paramedic Eric Crowe noted

she was rubbing her neck and holding her upper torso. He further observed redness

around Ashley’s throat and neck area. He assessed Ashley and, although Ashley was

not seriously injured, she told the paramedic appellant had assaulted her by being

“choked and tossed about by [the] neck.”

      {¶6}   Vienna Township Police Chief, Brian Darby, arrived and also noticed red

marks on the left side and front of Ashley’s neck. Chief Darby took Ashley’s statement

in which she reported she and appellant had been drinking and, after a brief but volatile

argument, he choked her several times. Ashley stated her daughter was with appellant

and she feared for the young girl’s safety. Chief Darby left to question appellant. The

officer arrived at the trailer and announced his presence. Appellant did not immediately

answer. After several minutes, however, appellant came to the door. The officer noted

appellant’s apparent intoxication and observed no fresh injuries to appellant’s person.

Appellant was ultimately arrested and later indicted on one count of felony-four

domestic violence.

      {¶7}   During appellant’s jury trial, Ashley testified to a significantly white-washed

version of the altercation. She stated that, although she and appellant did shove one

another, appellant did not choke her, but merely restrained her arms. Upon the state’s

motion, the court declared Ashley a “court witness” pursuant to Evid.R. 614(A) after


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which the prosecutor impeached Ashley’s testimony with prior statements and

testimony.

       {¶8}   During the prosecutor’s examination, the jury heard that Ashley had

previously testified before the grand jury that appellant “pushed me into the bedroom,

shut the door, got on top of me, choked me, and yelled in my face telling me he wants to

know how it feels to die.” The jury also heard Ashley’s previous testimony that, as she

went to leave the bedroom, appellant “grabbed me again on the bed and choked me

again. It lasted probably almost 30 seconds, to the point of almost blacking out, and I

had my daughter in the background screaming.” The jury finally heard prior testimony

that, as Ashley was fastening her daughter into her car seat, appellant choked her a

third time in which she nearly blacked out. Ashley specifically confirmed each of these

episodes and conceded that, during each of the three altercations, appellant had

choked her.

       {¶9}   Testifying on his own behalf, appellant asserted that, although he initiated

the argument, Ashley started the physical altercation by shoving him. He also testified

that he did not choke Ashley; rather, he claimed he merely restrained her in self-

defense.

       {¶10} After deliberations, appellant was found guilty of the domestic violence

charge and sentenced to a fifteen-month term of imprisonment. He now appeals and

assigns three errors for this court’s review. His first assignment of error provides:

       {¶11} “The trial court erred and abused its discretion by permitting the

submission of taped recordings, which were not in any fashion redacted, to the jury.”

       {¶12} Appellant asserts the trial court committed reversible error when it

permitted the jury to hear the entirety of four recorded jailhouse phone conversations


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between appellant and his mother when only portions of those conversations were

played in open court.

        {¶13} Initially, for purposes of background, it is unclear what portions of the

phone conversations were played for the jury.                      It is clear, however, that the

conversations were not played in their entirety. After the recordings were heard by the

jury, defense counsel made the following objection: “Your honor, I understand the

state’s desire for brevity, but the state cut off two of the calls slightly short, and, well, I

just need to note my objection to that.” The trial court advised defense counsel that he

could play the complete tapes if he wished. The prosecutor, however, objected to the

court’s decision, arguing: “He can’t offer them, they’re admission of a party opponent,

that’s the only way that they’re admissible.                He can’t play them and the rule of

completeness does not apply.” Defense counsel responded that, in his view, the rule of

completeness did apply and therefore the entirety of the recording should be played to

the jury.1 The court noted the objections for the record, but did not require the state to

play the complete recording.

        {¶14} After the state rested, it sought admission of the recordings. Defense

counsel again objected to their admission claiming the recordings included inadmissible

hearsay. The prosecutor reiterated his position that the recordings were admissions of



1. Although appellant does not contest this specific issue, it is worth noting that Evid.R. 106 provides:
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or recorded statement which is
otherwise admissible and which ought in fairness to be considered contemporaneously with it.” This rule
is a codification of the common law “rule of completeness.” State v. Matthews, 2d Dist. No. 24233, 2011-
Ohio-5066, ¶23. Under this rule, a party may introduce any other document, recording, or part thereof
“when one party has made use of a portion of a document [or recording], such that misunderstanding or
distortion can be averted only through presentation of another portion.” Beech Aircraft Corp.v. Rainey,
488 U.S. 153, 172 (1988). Here, we have no way of knowing which portions of the recordings were
omitted from the jury’s consideration during the presentation of evidence. There is no allegation,
however, that the recording, as played, distorted the content of the conversation of the failure to play the
entire recording contemporaneously with the selected portions rendered the evidence unfair. In this
respect, the defense did not, at trial, establish a violation of Evid.R. 106.

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a party opponent. The prosecutor also revisited defense counsel’s previous objection

relating to the incomplete recordings. The prosecutor emphasized that the state played

the shortened versions merely for brevity.      And, in any event, the entirety of the

recordings were disclosed to the defense, who failed to identify any exculpatory material

in the un-played portions of the conversations. The court admitted the recordings, in

their entirety, noting they were admissible as admissions of a party opponent and, in

addition, they were excepted from the hearsay prohibition as a “business record kept in

the ordinary course of business.”

       {¶15} Appellant does not specifically contest the court’s ruling on the general

admissibility of the recordings. Rather, he contends the trial court erred by admitting the

“unredacted” recording for the jury to hear in its entirety. In essence, appellant appears

to assert the trial court erred in allowing the jury to hear evidence that was apparently

irrelevant and potentially prejudicial. We do not agree.

       {¶16} First of all, trial counsel actively sought admission of the entire recording

at trial. And, although it was not played at trial, the court gave the jury the whole

recording to hear if it chose to listen. Thus, defense counsel eventually received what

he originally requested. On appeal, however, appellant incongruously challenges the

court’s decision to permit the jury to hear the whole recording. To the extent appellate

counsel is not arguing trial counsel’s ineffectiveness on appeal, we find it somewhat

disingenuous to argue error when the trial court acted in accordance with trial counsel’s

original request.

       {¶17} That said, however, we will not reverse the decision to admit unredacted

recordings if the error was harmless. State v. Hartman, 9th Dist. Nos. 10CA1126-M and

10CA0031-M, 2012-Ohio-745, ¶20. “[W]hen an error or defect made by the trial court


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does not affect a defendant’s substantial rights, the error is harmless and we will not

reverse the court’s judgment.” State v. Standifer, 12th Dist. No. CA2011-07-71, 2012-

Ohio-3132 ¶36, citing Crim. R. 52(A).

       {¶18} Appellant fails to identify, and the record does not disclose, what portions

of the recordings were omitted from evidence and what portions were played. Without

some evidence defining the substance of the omitted portions of the recordings, this

court has no way of evaluating whether appellant was prejudiced by the court’s

submission of these portions to the jury.         On this basis alone, we cannot conclude

appellant suffered a violation of his substantial rights.

       {¶19} Furthermore, appellant’s argument is premised upon the purported dearth

of evidence introduced by the state to support a conviction. To wit, appellant notes that

the only witness to the altercation was the victim.          Because her testimony was

inconsistent, he argues the evidence was not credible.               Appellant maintains,

consequently, the recordings were necessary for the state to prove its case. And, as a

result, appellant appears to argue that the introduction of the entirety of the recordings

was presumptively prejudicial; appellant fails, however, to offer any supporting authority

for his proposition.

       {¶20} While the necessity of the recordings is debatable, we fail to discern how,

without some supporting authority, the introduction of the entirety of the recordings

should be presumed prejudicial. Although appellant, perhaps correctly, criticizes the

trial court’s decision to permit the full recordings, he has failed to affirmatively

demonstrate the court’s action was, in these circumstances, unreasonable, unfair, or

otherwise unlawful. And we are aware of no authority that would permit a reviewing




                                              7
court to infer prejudice from an absence of evidence. Appellant’s argument,

consequently, lacks merit.

       {¶21} Finally, the testimony of the victim, the attending paramedic, responding

officers, and Mr. Castle is essentially consistent with the substantive information

disclosed on the recordings. To the extent the admissions on the recordings were

cumulative of other evidence properly admitted, we fail to see how appellant could have

been prejudiced by the court’s admission of the full recordings. Hence, even assuming

the court committed some procedural error in not requiring the recordings to be

redacted so as to limit their content to that played during the reception of evidence, any

such error would be, in this case, harmless as a matter of law.

       {¶22} Appellant’s first assignment of error is without merit.

       {¶23} For his second assignment of error, appellant asserts:

       {¶24} “The trial court erred by refusing to give a jury instruction on the issue of

self defense.”

       {¶25} Appellant claims the trial court erred when it declined to instruct the jury on

the affirmative defense of self-defense. We do not agree.

       {¶26} This court has observed that a defendant is entitled to an instruction on

self-defense to the extent there is some evidence on each of the following three

elements: “‘(1) that the defendant was not at fault in creating the situation giving rise to

the affray; (2) that 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 from such danger was

in the use of such force; and (3) that the defendant did not violate any duty to retreat or

avoid the danger.’” State v. Kovacic, 11th Dist. No. 2010-L-065, 2012-Ohio-219, ¶22,

quoting State v. Barnes, 94 Ohio St.3d 21, 24, 2002-Ohio-68. “An appellate court can


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only reverse a trial court’s refusal to give a defendant’s requested instruction upon a

showing of abuse of discretion by the trial court.” State v. Strickland, 11th Dist. No.

2005-T-0002, 2006-Ohio-2498, ¶24.

       {¶27} In this case, the trial court ruled appellant was not entitled to an instruction

on self-defense because the evidence demonstrated he was at fault in creating the

situation giving rise to the physical confrontation. For the following reasons, we find the

trial court did not err in declining to give the jury instructions for self defense.

       {¶28} During her testimony, Ashley described three discrete times during which

she was choked. Regarding the first incident, the evidence demonstrated that when

Ashley attempted to leave the trailer, appellant blocked her path; in response, Ashley

shoved appellant who, in turn, shoved Ashley into the bedroom. During the subsequent

struggle, which occurred on the bed, appellant choked Ashley.                Appellant asserts

Ashley’s act of pushing was the catalyst for the physical altercation and thus he was

entitled to an instruction on self-defense. We do not agree.

       {¶29} Although Ashley pushed first, she testified she did so because appellant

would not let her pass. She stated appellant was blocking her access to her child and,

as a result, she attempted to push through to retrieve the young girl. This evidence

demonstrates appellant’s action of obstructing Ashley’s ability to pass created the

situation that gave rise to the affray. Further, appellant did not testify and there was no

surrounding evidence that would suggest appellant believed he was in imminent danger

of death or great bodily harm when the choking occurred.                Indeed, the evidence

indicated appellant could have allowed Ashley to leave or leave himself without the use

of any additional force. Given these facts, appellant was not entitled to a self-defense

instruction.


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       {¶30} During the second incident, which occurred shortly after the first, appellant

choked Ashley for approximately 30 seconds when she attempted to leave the

bedroom. This situation can be reasonably viewed as an extension of the initial affray

for which, as we have just concluded, appellant was at fault. And, again, there was no

evidence that appellant believed he would suffer harm or that his only means of escape

was to use the force he employed.         To the contrary, he choked Ashley when she

attempted to flee.

       {¶31} Finally, the evidence demonstrated that appellant again choked Ashley as

she was placing the couple’s daughter in her car seat. This incident happened after

Ashley left the trailer and, given the evidence, was a result of Ashley’s apparent refusal

to leave the child with appellant. Appellant pursued and initiated this affray as Ashley

attempted to leave the scene. We therefore conclude there was no evidence to support

a self-defense instruction vis-à-vis the third choking incident.

       {¶32} Appellant’s second assignment of error lacks merit.

       {¶33} For his final assignment of error, appellant asserts:

       {¶34} “The appellant’s conviction for domestic violence is against the manifest

weight of the evidence.”

       {¶35} A manifest-weight challenge requires an appellate court to consider the

entire record, including the credibility of witnesses and potential conflicts in the

evidence, and determine whether the jury clearly lost its way such that the verdict of

guilty resulted in a manifest miscarriage of justice requiring a new trial. See e.g. State v.

Schlee, 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994).

A judgment of a trial court should be reversed as being against the manifest weight of




                                             10
the evidence “only in the exceptional case where the evidence weighs heavily against

the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

       {¶36} Appellant claims the jury’s verdict is against the weight of the evidence

because Ashley initially shoved appellant and, in his estimation, the record fails to show

he went too far in “defending himself.” We do not agree.

       {¶37} Even though Ashley pushed appellant first, the evidence demonstrated

that appellant responded by shoving her hard enough for her to fall on the bed.      And

Ashley’s initially testimony, that once on the bed, appellant only restrained her arms on

her chest to prevent her from kicking him, was impeached; that is, her previous

statements and grand jury testimony showed she had previously told police, a

paramedic, and the grand jury that appellant choked her three separate times during the

course of the altercation. The responding officers and paramedic also testified that

Ashley had red marks around her neck, corroborating her initial statements. The jury

chose to believe this testimony in lieu of appellant’s and Ashley’s mutual reconstructions

of the altercation. We conclude the jury did not lose its way in doing so.

       {¶38} Appellant’s final assignment of error lacks merit.

       {¶39} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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