[Cite as State v. Harding, 2011-Ohio-2823.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :        C.A. CASE NO.        24062

v.                                                    :        T.C. NO.   10CR227

RICK A. HARDING                                       :        (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellant                    :

                                                      :

                                              ..........

                                              OPINION

                         Rendered on the       10th   day of      June    , 2011.

                                              ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BARRY S. GALEN, Atty. Reg. No. 0045540, 111 W. First Street, Suite 1000, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                              ..........

KLINE, J. (by assignment)

        {¶ 1} Rick A. Harding (hereinafter “Harding”) appeals his convictions for

three counts of felonious assault by the Montgomery County Court of Common

Pleas following a bench trial. Harding contends that the trial court’s determination

that Harding did not act in self-defense was against the manifest weight of the
                                                                                     2

evidence.      Because Harding violated his duty to retreat, we disagree. Harding

also contends that the trial court erred by convicting him of felonious assault, rather

than the lesser offense of aggravated assault.       Because there was insufficient

evidence that Harding acted under the influence of rage or passion, we disagree.

Accordingly, we affirm the trial court’s judgment.

                                              I

         {¶ 2} Harding stabbed Chad Waddell (hereinafter “Waddell”) and David
                                1
Flinchum (hereinafter “David”) outside the Tidy Rabbit Laundromat (hereinafter

“Tidy Rabbit”) on Monday, January 18, 2010. However, events in the days just

prior to the incident gave rise to the confrontation between Harding, Waddell, and

David.

         {¶ 3} At the time of the incident, Harding was dating Jessica Flinchum

(hereinafter “Jessica”).   And Waddell was dating Jennifer Flinchum (hereinafter

“Jennifer”). Jennifer and Jessica are twin sisters. David is their brother. On the

Saturday night or early Sunday morning prior to the incident, Waddell suffered a

drug overdose, and he went to the hospital. After Waddell went to the hospital,

Jennifer made her way to Jessica and Harding’s apartment. Jennifer and Jessica

got into an argument at the apartment.        Jennifer testified that, at some point,

Harding began to beat her (i.e., Jennifer). Jennifer claimed that Harding gave her

a black eye and kicked her in the stomach repeatedly until she urinated on herself.



           1
         Several members of the Flinchum family testified in this case.
  Consequently, we will refer to members of the Flinchum family by their first
  names to avoid confusion.
                                                                                    3

Eventually, Jennifer left the apartment. Jennifer claimed that she chose not to file

a police report of the incident because she wanted to check on Waddell at the

hospital.

       {¶ 4} The next day, i.e., Monday, January 18th, Jennifer, David, and

Shannon Flinchum (hereinafter “Shannon”) were at their parents’ house.

(Shannon is Jennifer, Jessica, and David’s sister.)      David’s girlfriend, Christina

Siciliano (hereinafter “Siciliano”), was also at the house. And Waddell went to the

house after he was released from the hospital.           At some point during the

afternoon, Waddell, Jennifer, Shannon, David, and Siciliano decided to leave the

house. The witnesses gave multiple reasons for leaving, including getting food for

David; checking on Jessica because of alleged abuse by Harding; getting some

property back from Harding; and talking to Harding “man to man” about the incident

with Jennifer. Waddell and David admitted that they were angry with Harding over

the incident with Jennifer, but Waddell and David each denied that they intended to

harm Harding.

       {¶ 5} Waddell, Jennifer, Shannon, David, and Siciliano left in Siciliano’s car,

and they drove towards Jessica and Harding’s apartment. While they were driving,

the group spotted Harding at the Tidy Rabbit. They pulled into the Tidy Rabbit’s

parking lot and remained in the car.      Harding left the Tidy Rabbit and walked

across the parking lot. Waddell and David exited Siciliano’s car, and they called

out to Harding as they approached him.            When Waddell and David were

approaching, they had their backs to the Tidy Rabbit.         Harding was near the

sidewalk at the end of the parking lot, and he was facing the Tidy Rabbit. As
                                                                                  4

Waddell and David approached, Harding took his jacket off and threw it on a fence

at the edge of the parking lot. Harding admitted that, at that point, he could have

run away, but he did not. At least one witness heard Harding say “two on one, this

ain’t a fair fight, you know. Why you got to jump me?” Tr. at 444.

       {¶ 6} Harding then brandished a knife, but that did not deter Waddell and

David. Waddell punched Harding, and Harding claimed that he fell to one knee.

Harding then began swinging the knife.         David attempted to grab Harding.

Harding, however, swung the knife haphazardly, and several witnesses testified

that “fists were flying.”

       {¶ 7} Waddell’s version of the beginning of the fight differed. On direct

examination he testified, “So I took a couple steps closer towards [Harding], and he

– that’s when he swung. He had the knife in his hand, and that’s when he swung

and he caught – he barely grazed my nose.”

       {¶ 8} The confrontation did not last long.      An off-duty firefighter EMT

happened to be stopped at a red light at a nearby intersection, and he noticed the

confrontation develop.      The firefighter witnessed the fight begin, and, as he

approached the Tidy Rabbit’s parking lot, he briefly activated the siren on his

vehicle.   The fighting stopped as soon as the firefighter activated the siren.

Harding quickly left the scene. Shortly thereafter, Waddell and David realized that

they had been stabbed. Waddell and David were treated at the scene and later

taken to the hospital. Medical personnel determined that David’s injuries carried

the possibility of serious internal injury. Consequently, David underwent a lengthy

surgery.    Harding made his way to his parents’ house.       Eventually, Harding’s
                                                                                      5

father contacted the police, and the police arrested Harding at his parents’ house.

       {¶ 9} Harding was charged with three counts of felonious assault and one

count of tampering with evidence. The trial court conducted a bench trial on the

matter. At the close of the State’s case, the trial court dismissed the tampering

with evidence count. Harding testified on his own behalf, and he testified that he

acted in self-defense.    The trial court found Harding guilty on three counts of

felonious assault. Following the verdict, Harding filed a motion requesting the trial

court to reconsider its verdict. Specifically, Harding requested that the trial court

find Harding guilty of the lesser offense of aggravated assault, instead of felonious

assault.   The trial court denied Harding’s motion.        The trial court sentenced

Harding to a total of three years in prison for his felonious assault convictions.

       {¶ 10} Harding appeals and asserts the following assignments of error: I.

“THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE

DEFENDANT FOR FELONIOUS ASSAULT WHEN THE MANIFEST WEIGHT OF

THE EVIDENCE PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT

DEFENDANT-APPELLANT ACTED IN SELF-DEFENSE.”                      And, II. “THE TRIAL

COURT ERRED IN NOT FINDING THE DEFENDANT GUILTY OF THE LESSER

OFFENSE OF AGGRAVATED ASSAULT WHEN THERE WAS SUBSTANTIAL

EVIDENCE DEMONSTRATING SERIOUS PROVOCATION.”

                                               II

       {¶ 11} In his first assignment of error, Harding contends that the trial court’s

determination that Harding did not act in self-defense was against the manifest

weight of the evidence.
                                                                                       6

       {¶ 12} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences is the more believable or

persuasive. * * * This court, in reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of the witnesses and determines

whether in resolving conflicts in the evidence, the trier-of-fact lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.”       State v. Rowland, Montgomery App. No. 20625,

2005-Ohio-3756, at ¶5.

       {¶ 13} “The credibility of the witnesses and the weight to be given to their

testimony are matters for the trier of facts to resolve. State v. DeHass (1997), 10

Ohio St.2d 230, 231[.] ‘Because the factfinder * * * has the opportunity to see and

hear the witnesses, the cautious exercise of the discretionary power of a court of

appeals to find that a judgment is against the manifest weight of the evidence

requires that 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 witness.’ State v. Lawson (Aug. 22, 1997), Montgomery App.

No. 16288.” State v. Key, Montgomery App. No. 22609, 2009-Ohio-422, at ¶25.

       {¶ 14} “This court will not substitute its judgment for that of the trier of facts

on the issue of witness credibility unless it is patently apparent that the trier of fact

lost its way in arriving at its verdict.” Id. at ¶26, citing State v. Bradley (Oct. 24,

1997), Champaign App. No. 97-CA-03.

       {¶ 15} Harding argues that the trial court should have ruled that Harding
                                                                                    7

acted in self-defense when he stabbed Waddell and David. Self-defense is an

affirmative defense, and the accused has the burden of proving that he acted in

self-defense by a preponderance of the evidence.         R.C. 2901.05(A); State v.

Jackson (1986), 22 Ohio St.3d 281, 283. Stabbing a victim (or victims) with a knife

constitutes the use of deadly force. See State v. Sims, 2005-Ohio-5846, at ¶17;

State v. Densmore, Henry App. No. 7-08-4, 2009-Ohio-6870, at ¶28; State v.

Hansen, Athens App. No. 01CA15, 2002-Ohio-6135, at ¶29.             Consequently, to

satisfy his burden, Harding had to meet the standard for self-defense through the

use of deadly force.

      {¶ 16} To establish self-defense through the use of deadly force, “a

defendant must prove the following 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.

Barnes, 94 Ohio St.3d 21, 24, 2002-Ohio-68, citing State v. Robbins (1979), 58

Ohio St.2d 74.     “[T]he elements of self-defense are cumulative. * * * If the

defendant fails to prove any one of these elements by a preponderance of the

evidence he has failed to demonstrate that he acted in self-defense.” Jackson at

284 (emphasis sic).

      {¶ 17} Even assuming Harding satisfied the first two elements of the

self-defense test, he violated his duty to retreat.    The evidence was clear that

Waddell and David approached Harding from the direction of the Tidy Rabbit, and
                                                                                      8

Harding was standing near the sidewalk. Although Waddell and David approached

at a brisk pace, Harding had time to remove his coat and prepare for the

confrontation. Harding was aware that Waddell and David intended to fight him.

Harding testified that David and Waddell were speaking aggressively as they

approached. And at least one witness stated that Harding said, “two on one, this

ain’t a fair fight, you know. Why you got to jump me?” Tr. at 444. Harding was

not surrounded, and he could have avoided the confrontation by going in either

direction on the sidewalk.

       {¶ 18} Additionally, on cross-examination, Harding admitted that he could

have run away in the five seconds it took Waddell and David to get close to him.

Specifically, Harding testified as follows:

       {¶ 19} “Q. From the time that David and [Waddell] finally got close to you –

       {¶ 20} “* * *

       {¶ 21} “Q. – was about five seconds?

       {¶ 22} “A. Yes.

       {¶ 23} “* * *

       {¶ 24} “Q.      And in that five seconds, you decided not to take off, is that

correct?

       {¶ 25} “A. Correct.

       {¶ 26} “Q. Not to run?

       {¶ 27} “A. Correct.

       {¶ 28} “Q. Not to yell out for help?

       {¶ 29} “A. Correct.
                                                                                      9

       {¶ 30} “Q. Not to do anything but pull out your knife? Correct?

       {¶ 31} “A. Yes.

       {¶ 32} “Q. And you had every opportunity to run away, didn’t you? Didn’t

you?

       {¶ 33} “A. It could have happened.

       {¶ 34} “Q. You could have run away?

       {¶ 35} “A. I could have.” Tr. at 504 (emphasis added).

       {¶ 36} Thus, the evidence demonstrated that Harding could have retreated

from the danger caused by Waddell and David, but Harding did not. Therefore,

Harding violated his duty to retreat, and his self-defense argument fails. See State

v. Wilson, Montgomery App. No. 22581, 2009-Ohio-525, at ¶43.

       {¶ 37} Therefore, we find that substantial evidence showed that Harding

violated his duty to retreat. We cannot find that the trier-of-fact lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered. Consequently, the trial court’s determination that Harding

failed to prove that he acted in self-defense was not against the manifest weight of

the evidence.

       {¶ 38} Accordingly, we overrule Harding’s first assignment of error.

                                              III

       {¶ 39} In his second assignment of error, Harding contends that the trial

court erred by finding him guilty of felonious assault as opposed to the lesser

offense of aggravated assault.

       {¶ 40} “The trial court’s decision to allow the finder of fact, whether a jury or
                                                                                 10

the court itself in a bench trial, to consider a lesser-included offense will be

reviewed on appeal under an abuse-of-discretion standard.”          State v. Cain,

Franklin App. No. 06AP-1252, 2007-Ohio-6181, at ¶7 (citation omitted). “The court

may submit consideration of the lesser-included offense to the finder of fact where

the evidence presented at trial would reasonably support both an acquittal on the

crime charged and a conviction upon the lesser-included offense.” Id. citing State

v. Thomas (1988), 40 Ohio St.3d 213, at paragraph two of the syllabus.

       {¶ 41} R.C. 2903.12 defines aggravated assault. This statute provides, in

relevant part, as follows: “(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[.]”

       {¶ 42} In a felonious assault case, the trier of fact must consider an

aggravated assault charge when sufficient evidence of serious provocation by the

victim (or victims) exists. State v. Mack, 82 Ohio St.3d 198, 200, 1998-Ohio-375;

see, also, State v. Deem (1988), 40 Ohio St.3d 205, paragraph four of the syllabus.

 “To be serious, the provocation ‘must be reasonably sufficient to incite or arouse

the defendant into using deadly force.’ Deem[,] at paragraph five of the syllabus,

citation omitted. In the context of aggravated assault, the evaluation of whether

provocation is reasonably sufficient to constitute serious provocation is a two-part

analysis.     [Mack at 201].   First, an objective standard must be applied to

determine whether the provocation is sufficient to ‘arouse the passions of an
                                                                                  11

ordinary person beyond the power of his or her control,’ and to bring on a sudden

passion or fit of rage.   Id., citing State v. Shane (1992), 63 Ohio St.3d 630,

634-35[.] If the objective standard is satisfied, then a subjective standard must be

applied to determine whether the defendant in a particular case was actually ‘under

the influence of sudden passion or in a sense of sudden rage.’ Mack [] at 201[,]

citing Shane [] at 634-35[.]”    State v. Moore, Montgomery App. No. 20005,

2004-Ohio-3398, at ¶14.

      {¶ 43} When analyzing the subjective prong of the test, “[e]vidence

supporting the privilege of self-defense, i.e., that the defendant feared for his own

personal safety, does not constitute sudden passion or fit of rage.”        State v.

Stewart, Franklin App. No. 10AP-526, 2010-Ohio-466, at ¶13, citing State v.

Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618. See, also, Mack at 201;

State v. McClendon, Montgomery App. No. 23558, 2010-Ohio-4757, at ¶23

(“[T]here was insufficient subjective evidence that Defendant was actually acting

under the influence of sudden passion or in a sudden fit of rage.            Rather,

Defendant shot Driscoll out of fear because he was afraid Driscoll might be

retrieving a weapon out of his coat. Fear alone is insufficient to demonstrate the

kind of emotional state necessary to constitute sudden passion or a sudden fit of

rage.”) (citations omitted), vacated, in part, on other grounds by State v.

McClendon, 128 Ohio St.3d 354, 2011-Ohio-954.

      {¶ 44} Here, even assuming Harding satisfied the objective prong, he failed

to satisfy the subjective prong of the serious provocation test. There is simply no

evidence that Harding acted out of rage or passion when he stabbed Waddell and
                                                                                   12

David. In fact, Harding testified at length that he was motivated by fear and that he

acted in self-defense.

       {¶ 45} Harding repeatedly described his emotions during the incident with

words such as “scared” and “fear.” On direct examination, Harding was asked

what was going through his mind as Waddell and David approached him. Harding

responded, “Scared. Fear for life basically because I’ve been beaten up basically

– well yeah beaten up by David before and another dude.” Tr. at 478. Later,

Harding testified that, as Waddell and David approached, “I’m scared because both

of them or, you know, I know I’m about to get my ass beat by two dudes.” Id. at

480.

       {¶ 46} Harding also indicated that, during the confrontation with Waddell and

David, Harding suffered from a “blackout.” Harding testified that he suffers from

blackouts “when I’m scared for my life – when I’m scared. Fear.” Id. at 490.

Additionally, Detective William Ring interviewed Harding shortly after Harding’s

arrest. Ring testified that Harding said that he blacked out during the incident due

to “scaredness.” Id. at 369.

       {¶ 47} Thus, there is no subjective evidence that Harding was actually “under

the influence of sudden passion or in a sense of sudden rage.” Mack at 201.

Instead, the evidence was clear that fear motivated Harding’s actions during the

incident. Therefore, we find that the trial court did not abuse its discretion when it

determined that there was insufficient evidence to consider the offense of

aggravated assault.

       {¶ 48} Accordingly, we overrule Harding’s second assignment of error.
                                                                                 13

                                                IV

       {¶ 49} In conclusion, having overruled both of Harding’s assignments of

error, we affirm the decision of the trial court.

                                       ..........

FAIN, J. and DONOVAN, J., concur.

(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew T. French
Barry S. Galen
Hon. Timothy N. O’Connell
