[Cite as State v. Barksdale, 2013-Ohio-1066.]




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

STATE OF OHIO                                       :
                                                    :     Appellate Case No. 23422
        Plaintiff-Appellee                          :
                                                    :     Trial Court Case No. 08-CR-3283
v.                                                  :
                                                    :
CHRISTOPHER BARKSDALE                               :     (Criminal Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellant                         :
                                                    :
                                                 ...........

                                                OPINION

                             Rendered on the 22nd day of March, 2013.

                                                 ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHRISTOPHER WESNER, Atty. Reg. #0082699, Post Office Box 920, 22 North Market
Street, Suite C, Troy, Ohio 45373
        Attorney for Defendant-Appellant

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

FAIN, P.J.

        {¶ 1}     Defendant-appellant Christopher Barksdale appeals from his conviction and
                                                                                            2


sentence for two counts of Felonious Assault. He contends that his conviction is against the

manifest weight of the evidence because the evidence supports his contention that he acted in

self-defense when he stabbed Curtis Johnson. He further contends that the two counts of

Felonious Assault should have been merged for sentencing purposes.

       {¶ 2}    We conclude that the failure to find that Barksdale acted in self-defense is not

against the manifest weight of the evidence. The State concedes that the trial court should

have merged the two Felonious Assault counts for sentencing purposes. We agree.

       {¶ 3}    Accordingly, the sentence is Reversed, and this cause is Remanded for the

State to elect upon which of the two merged sentences Barksdale shall be sentenced, and for

the trial court to re-sentence Barksdale accordingly.



                              I. A Fight Results in a Stabbing

                                 A. The Victim’s Testimony

       {¶ 4}    Curtis Johnson and his fiancée, Anita Trammell, live together on South

Broadway Street in Dayton. One day in August 2008, Johnson was cooking in the kitchen of

his residence when he observed a car pull up to his house. He testified that he recognized the

car as Barksdale’s. Barksdale was dating Anita’s sister, Patricia Trammell.

       {¶ 5}    Johnson testified that Patricia and Anita were in the living room when they got

into a physical altercation. Johnson testified that he came out of the kitchen and attempted to

separate the women; Barksdale burst into the home, said “get off her,” and swung his fist at

Johnson. According to Johnson, he pushed Barksdale back out the front door, then Barksdale

grabbed him and caused him to flip over the porch railing. Johnson testified that Barksdale
                                                                                             3


then came off the porch, knocking over a small child, and that he and Barksdale then

engaged in a fistfight. Johnson testified that Barksdale turned and ran away. Johnson then

turned to walk away. He heard Barksdale say that he was going “to get” Johnson. Johnson

testified that he saw Barksdale reach for something and then Barksdale came swinging at him.

 He testified that Barksdale stabbed him several times with a knife, before retreating to his

car.



                               B. The Defendant’s Testimony

       {¶ 6}    Barksdale testified that he was sitting in his car when he heard an argument

start inside the house. He testified that he “never stepped up in the house all the way.” He

saw that Patricia had Anita in a headlock and that Johnson was on top of Patricia. Barksdale

further testified that three kids were also pulling at Patricia. Barksdale testified that he said

“you all get off of her,” and Johnson yelled back at him. According to Barksdale, he replied

to Johnson that he was just trying to break up the altercation between the women, and Johnson

“immediately came toward” him.

       {¶ 7}    Barksdale testified that as Johnson came toward him, he “backed out of the

door,” and Johnson swung at him. Barksdale testified that he was able to duck the swing, and

that as he stood back up, he threw Johnson over the porch railing.

       {¶ 8}     Barksdale testified that he then ran down the steps, bumping into a small boy.

 He testified that he was at “the end of the street,” telling Patricia and her daughter to “come

on,” when Johnson ran into the house and came back out with something under his shirt.

Barksdale testified that Johnson was “coming up on [him] at a fast, fast pace,” and that
                                                                                            4


Barksdale caught Johnson’s hand and then “sucker-punched him.”

       {¶ 9}    Barksdale testified that he was “hysterical” and “in fear,” so he grabbed his

pocketknife and “just got to swinging.” Barksdale testified that both men then stepped back,

and Johnson went toward the house, at which point Barksdale ran to his car. He testified that

he again yelled for Patricia and her daughter, both of whom got in the car. They proceeded to

leave the premises.



                             C. Anita Trammell’s Testimony

       {¶ 10} Anita Trammell testified for the State. She testified that she and Patricia got

into a physical fight, and Johnson came into the room and tried to break them apart. At that

point, Barksdale came into the house and told Johnson to “get off of her.” Anita testified that

Johnson replied, “man, I’m just trying to break them up.” She testified that she observed

Barksdale try to grab or hit Johnson, and the two ended up outside the house.

       {¶ 11} Anita Trammell testified that she did not see the scuffle that took place

outside, because she and her sister continued to fight until they were pulled apart by Anita’s

daughter, Imani Trammell,, and Imani’s friend, Phylnieshia Streaty.



                             D. Imani Trammell’s Testimony

       {¶ 12} Imani Trammell testified for the State.        She testified that Johnson was

attempting to break up the fight between her mom and aunt. Barksdale then “busted through

the door and tried to swing at [Johnson].” She testified that as Barksdale came through the

door, he said “get off my woman,” and Johnson replied that he was not trying to hit Patricia.
[Cite as State v. Barksdale, 2013-Ohio-1066.]
        {¶ 13} Imani testified that Barksdale then swung at Johnson. Imani testified that

Johnson then pushed Barksdale out of the house, and Barksdale grabbed Johnson by the shirt

and pushed Johnson over the railing off of the porch. She testified that Johnson got up and

started toward Barksdale and the porch stairs. At the same time, Barksdale ran off the porch

toward the street, running into a little boy who fell down by the street.

        {¶ 14} Imani testified that Johnson and Barksdale “met up by the tree, like in front of

the fire hydrant. And they were like sort of tussling and fist fighting.” She testified that

Barksdale then pulled out a knife and started stabbing Johnson. She testified that Johnson

never returned to the house once the altercation with Barksdale moved outside.



                                E. Phylnieshia Streaty’s Testimony

        {¶ 15} Phylnieshia Streaty testified for the State. She testified that she was on a drill

team with Anita Trammell’s daughters, and was present when this incident occurred. Streaty

testified that Anita and Patricia began to fight, and Johnson attempted to stop the fight.

        {¶ 16} According to Streaty, Barksdale then ran in the door and pushed Johnson, who

said that he was just attempting to stop the fight. Streaty testified that Barksdale then swung

at Johnson, and Johnson pushed Barksdale out of the house. Streaty testified that the two

men went out the door wrestling, and Barksdale threw Johnson over the porch railing. She

testified that as Johnson got up, Barksdale went down the porch stairs and shoved a boy to the

ground, before running behind a tree. According to Streaty, Johnson picked up the boy, then

walked toward Barksdale.

        {¶ 17} She testified that the men were facing each other going around the tree when

she went back inside to break up the fight between the two women. Streaty testified that
                                                                                          6


when she came back out, she saw the two men “holding” each other, and then heard Johnson

say that he had been stabbed. At that point, Barksdale ran to his car, and eventually left the

scene. Streaty testified that Johnson never went back into the house after the fight went

outside.



                           F. Laretha Strickland’s Testimony

       {¶ 18} Laretha Strickland testified for the State. Consistently with the other State’s

witnesses, she testified that as Johnson attempted to stop the fight in the house, Barksdale

came in and pushed Johnson. Johnson then pushed Barksdale out of the house.

       {¶ 19} Strickland testified that Barksdale threw Johnson over the porch railing and

ran down the steps. She testified that the two men were trying to punch each other when

Barksdale stabbed Johnson. She further testified that Johnson did not re-enter the house after

he pushed Barksdale out the front door.



                           G. Dr. Harry Anderson’s Testimony

       {¶ 20}    Harry Anderson, M.D., testified for the State. He is a trauma surgeon who

treated Johnson at Miami Valley Hospital. He testified that Johnson was stabbed on his chin,

his right arm, and in his lower chest/upper abdominal area. According to Anderson, the third

wound caused Johnson’s lung to collapse, and was a potentially life-threatening wound.

Anderson testified that the wound required admission to the hospital for two days until

Johnson was able to return home.
                                                                                             7


                             H. Patricia Trammell’s Testimony

       {¶ 21} Patricia Trammell testified for Barksdale. She testified that she was on top of

her sister, grabbing her sister’s hair, when Streaty came in and tried to “pry [her] hand loose.”

She testified that a “little” girl “grabbed [her] from the back of [her] neck, * * * and somebody

was trying to grab [her] feet.” Patricia testified that Johnson came in and “was over the top of

[her],” when Barksdale came up to the door.

       {¶ 22} Patricia Trammell testified that Barksdale opened the door and said, “y’all get

off of her.” Patricia testified that Johnson looked up and said, “what you got to do with it,

you fat M-F.” Patricia further testified that Johnson “jumped” off of her and ran toward

Barksdale, who was backed up out of her sight. She testified that she saw Johnson “run in the

house real quick, then he ran back outside. Before he ran outside, he was at the door like this.

 He had something under his shirt * * * and he hollered out, ‘well, you’re not going to get

away with this.’ ”

       {¶ 23} Patricia Trammell testified that Johnson ran back into the house saying that he

had been stabbed. Patricia admitted on cross-examination that she lied to the police when

they came to her residence, by telling them that Barksdale was not in the home. The police

found him hiding in the bedroom.



                            I. Stephanie Trammell’s Testimony

       {¶ 24} Stephanie Trammell, Patricia Trammell’s daughter, testified for Barksdale.

She testified that as her mother and aunt were fighting, Johnson came in the house from the

front porch and began “pulling” her mother. She testified that Barksdale then walked in and
                                                                                               8


told Johnson to get off of her mother.

       {¶ 25} Stephanie Trammell testified that Johnson swung at Barksdale, missing, and

Barksdale “flipped him over the balcony.” She testified that Johnson “fell hard,” and then got

up and ran back into the house. Meanwhile, Barksdale ran off the porch, almost knocking a

boy down.

       {¶ 26} Stephanie Trammell testified that Johnson ran back out of the house “with his

hand under his shirt in the back of his shirt like you’re not going to get away with this. And

he ran off the porch after [Barksdale].” She testified that she then went back into the house to

help her mother, and when she stepped back outside, she saw Johnson come up the porch

stairs and heard him say that he had been stabbed.



                               J. William Redd’s Testimony

       {¶ 27} William Redd testified for Barksdale. He testified that he is related to the

Trammells. He testified that he was “next door on the porch” at a friend’s home drinking

beer when the incident occurred. He said the “scuffle” between Johnson and Barksdale

started on Johnson’s porch.

       {¶ 28} Redd testified that the men went down to the sidewalk, and then Johnson went

back into the house “real quick” and returned. According to Redd, Barksdale was standing in

the street when Johnson approached him with his hand behind his back. Redd testified that

Johnson “just started swinging *** and then all of a sudden they just like split up.” Redd

testified that Barksdale then got into his car and told Patricia and Stephanie to “come on.”

       {¶ 29} On cross-examination, Redd testified that while the men were still on the
                                                                                           9


porch, he went into the friend’s house to get a phone, and came back out to call Anita and

Patricia’s brother. He testified that when he came back out, the men were still on the porch,

and then they came down off the porch.

       {¶ 30} Redd denied seeing Barksdale throw Johnson off the porch, testifying that

Barksdale came off the porch before Johnson. He denied seeing anything in Johnson’s hands

when Johnson came back out of the house.          Redd testified that he did not make any

statements to the police when they arrived.



                              II. The Course of Proceedings

       {¶ 31} Barksdale was arrested and ultimately indicted on one count of Felonious

Assault (serious physical harm) in violation of R.C. 2903.11(A)(1), and one count of

Felonious Assault (deadly weapon) in violation of R.C. 2903.11(A)(2). Following a jury

trial, Barksdale was convicted of both charges and sentenced to a prison term of four years on

each count, to be served concurrently.

       {¶ 32} Barksdale appealed. We affirmed, based upon Barksdale’s failure to provide

a transcript evidencing his assigned errors. State v. Barksdale, 2d Dist. Montgomery No.

23422, 2011-Ohio-630. Barksdale applied under App.R. 26(B) to reopen his appeal, based

upon a claim of ineffective assistance of appellate counsel. We granted the application.



                      III. Barksdale’s Convictions Are Not Against

                            the Manifest Weight of the Evidence

       {¶ 33} Barksdale’s First Assignment of Error states as follows:
                                                                                               10


                THE DEFENDANT’S CONVICTIONS FOR FELONIOUS ASSAULT

       WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 34}      Barksdale contends that the jury’s rejection of his defense that he stabbed

Johnson in self-defense is against the manifest weight of the evidence.

       {¶ 35}    Self-defense is an affirmative defense, which the defendant must prove by a

preponderance of the evidence. R.C. 2901.05(A); State v. Jackson, 22 Ohio St.3d 281, 490

N.E.2d 893 (1986). In order to establish the defense, the accused must prove that he was not

at fault in creating the situation giving rise to the affray; that he had a bona fide belief that he

was in imminent danger of death or great bodily harm and his only means of escape from the

danger was in the use of force; and that he did not violate any duty to retreat or avoid the

danger. State v. Davis, 2d Dist. Montgomery No. 21904, 2007–Ohio–6680, ¶ 14.

       {¶ 36} Barksdale argues that he was not at fault in creating the situation, because he

stayed in his car until he heard the argument inside the house. He contends that he opened

the screen door to the house only to tell Johnson to “get off of her,” whereupon Johnson took a

swing at him. He further argues that even if he “was at first the aggressor every witness

testified that after Johnson went over the rail it was Johnson that pursued [him].”

       {¶ 37} Barksdale also argues that he had reasonable grounds to believe that he was in

imminent danger of great bodily harm, because Johnson went back into the house and came

back out, appearing to conceal something that Barksdale believed to be a knife. Finally,

Barksdale claims that all accounts of the event demonstrate that at the time of the stabbing, he

was attempting to get away from Johnson, and that it was Johnson’s “relentless pursuit of

[him] that gave rise to the situation that led up to the stabbing.” In short, he argues that he
                                                                                             11


did not initiate the fight, did not violate any duty to retreat, and had a reasonable basis for

believing that he was in danger. Therefore, he contends that his conviction is against the

manifest weight of the evidence.

        {¶ 38}        When a conviction is challenged on appeal as being against the weight of the

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, 1997–Ohio–52, 678 N.E.2d 541. A judgment should be

reversed as being against the manifest weight of the evidence “only in the exceptional case in

which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

        {¶ 39} There is credible evidence that Barksdale initiated the fight between himself

and Johnson, by entering the house and attempting to hit Johnson. There is also credible

evidence that the fight continued when Johnson responded by pushing Barksdale out of the

house, onto the porch, where Barksdale proceeded to throw Johnson over the railing.

        {¶ 40}        Barksdale contends that all of the witnesses, including those for the State,

testified that after he pushed Johnson off the porch, he retreated, by running away. He further

contends that the witness accounts demonstrate that Johnson pursued him, despite his best

efforts to retreat.

        {¶ 41} We do not agree with Barksdale’s assertion that Johnson was the only one

who continued the fight.           The testimony of Laretha Strickland, Imani Trammell and
                                                                                            12


Phylnieshia Streaty does not demonstrate that Barksdale was running away from Johnson. To

the contrary, although their testimony can be construed as indicating that Johnson got up, after

falling from the porch, and went toward Barksdale to continue the fight, their testimony also

indicates that Barksdale was facing Johnson, walking backward, all the while continuing to

engage in a fistfight. In other words, their testimony does not indicate that Barksdale turned

and ran, but rather that as the fistfight continued, Barksdale was walking backwards while

continuing to fight..

        {¶ 42}    Furthermore, while Barksdale, Patricia Trammell, Stephanie Trammell, and

Redd all testified that Johnson went into the house, and came back out holding his hand

behind his back, there was conflicting testimony that Johnson never returned to the house.

Thus, there was evidence upon which the jury could rely to reject Barksdale’s claim that

Johnson went into the house and came back out with a knife, and upon which the jury could

rely in finding that Johnson was not armed during the encounter. The jury had evidence

before it upon which it could rely in finding that the men were engaged in one continuous

fight, which was not interrupted either by Johnson’s return to the house to get a knife, or by

Barksdale turning and breaking off the fight by running away.

        {¶ 43} This case turned upon witness credibility.           The jury chose to credit the

testimony of the State’s witnesses. That testimony was not unworthy of belief. We cannot

say that the jury lost its way, resulting in a manifest miscarriage of justice.

        {¶ 44} Barksdale’s First Assignment of Error is overruled.



                   IV. As the State Concedes, the Two Felonious Assault
                                                                                         13


                          Convictions Should Have Been Merged

       {¶ 45} Barksdale’s Second Assignment of Error is as follows:

               THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT OF

       TWO COUNTS OF FELONIOUS ASSAULT AS THE OFFENSES WERE ALLIED

       AND SHOULD HAVE BEEN MERGED FOR SENTENCING.

       {¶ 46} Barksdale contends that the Felonious Assault counts stem from the same

course of action, and that the holding of the Supreme Court of Ohio in State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, mandates that the counts be merged for

purposes of sentencing. The State concedes error, and notes that it failed to elect upon which

count Barksdale should be sentenced. We agree.

       {¶ 47} Barksdale’s Second Assignment of Error is sustained.



                                       V. Conclusion

       {¶ 48} Barksdale’s First Assignment of Error having been overruled, and his Second

Assignment of Error having been sustained, the sentence is Reversed, and this cause is

Remanded for the State to elect upon which count Barksdale should be sentenced, and for the

trial court to sentence Barksdale accordingly.

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

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Christopher Wesner
Hon. Timothy N. O’Connell
14
