[Cite as State v. Wagner, 2015-Ohio-5183.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-15-18

        v.

ERIC T. WAGNER,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 14-CR-0199

                                     Judgment Affirmed

                          Date of Decision: December 14, 2015




APPEARANCES:

        Jessica L. Monday for Appellant

        Brian O. Boos for Appellee
Case No. 13-15-18


PRESTON, J.

       {¶1} Defendant-appellant, Eric T. Wagner (“Wagner”), appeals the

judgment entry of sentence of the Seneca County Court of Common Pleas.

Wagner argues that his conviction for domestic violence should be reversed

because he proved the affirmative defense of self-defense at trial. For the reasons

that follow, we affirm.

       {¶2} This case stems from a July 31, 2014 altercation that took place

between Wagner and his brother, Timothy Wagner (“Timothy”), at the Blue Eagle

Bar in Bettsville, Ohio. On August 20, 2014, the Seneca County Grand Jury

indicted Wagner on one count—domestic violence in violation of R.C.

2919.25(A), (D)(4), a third-degree felony. (Doc. No. 3).

       {¶3} The case proceeded to a jury trial on March 2 and 3, 2015. (Mar. 2,

2015 Tr. at 1); (Mar. 3, 2015, Vol. I, at 1). The jury found Wagner guilty of the

count of the indictment. (Mar. 3, 2015 Tr., Vol. II, at 42-43). The jury also found

that Wagner “did not prove by a preponderance of the evidence the affirmative

defense of self-defense.” (Id. at 43).

       {¶4} On April 16, 2015, the trial court sentenced Wagner. (Apr. 16, 2015

Tr. at 2). The trial court filed its judgment entry of sentence the next day. (Doc.

No. 33).




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         {¶5} On May 14, 2015, Wagner filed a notice of appeal. (Doc. No. 39). He

raises one assignment of error for our review.

                               Assignment of Error

         The conviction of the trial court should be reversed because the
         conviction was against the manifest weight of the evidence and
         the evidence supporting it was insufficient as a matter of law to
         prove the conviction of Eric T. Wagner beyond a reasonable
         doubt because Appellant proved the affirmative defense of Self-
         Defense by a preponderance of the evidence.

         {¶6} In his assignment of error, Wagner argues that his conviction for

domestic violence is against the manifest weight of the evidence and based on

insufficient evidence because he proved the affirmative defense of self-defense at

trial.

         {¶7} As an initial matter, we note that Wagner’s challenge to the

sufficiency of the evidence as to self-defense is inappropriate. State v. Vasquez,

10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 52.         Self-defense is an

affirmative defense, and the accused bears the burden of proving it by a

preponderance of the evidence. State v. Belanger, 190 Ohio App.3d 377, 2010-

Ohio-5407, ¶ 4 (3d Dist.).      See also R.C. 2901.05(A).     “The ‘due process

‘sufficient evidence’ guarantee does not implicate affirmative defenses, because

proof supportive of an affirmative defense cannot detract from proof beyond a

reasonable doubt that the accused had committed the requisite elements of the

crime.’” Vasquez at ¶ 52, quoting State v. Hancock, 108 Ohio St.3d 57, 2006-

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Ohio-160, ¶ 37. Therefore, we address Wagner’s self-defense arguments only as

to the manifest weight of the evidence. See State v. Bagley, 3d Dist. Allen No. 1-

13-31, 2014-Ohio-1787, ¶ 11, citing Vasquez at ¶ 52.

      {¶8} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact]

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).    A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

When applying the manifest-weight standard, “[o]nly in exceptional cases, where

the evidence ‘weighs heavily against the conviction,’ should an appellate court

overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34,

2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, ¶ 119.

       {¶9} Wagner was convicted of domestic violence in violation of R.C.

2919.25(A), (D)(4); however, he does not dispute that the State proved the


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elements of that offense. Rather, Wagner argues that the jury lost its way in

concluding that he did not act in self-defense. Wagner argues that the evidence at

trial demonstrated that he used non-deadly force on Timothy in self-defense.

      {¶10} In State v. Kimmell, this court explained the elements of self-defense

where the defendant is alleged to have used non-deadly force:

      “(1) the defendant was not at fault in creating the situation giving

      rise to the affray, and (2) the defendant (even if mistaken) had a

      bona fide belief (which means a belief that was both objectively

      reasonable and subjectively honest) that he was in imminent danger

      of any bodily harm (whether it be deadly or non-deadly).”

3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶ 19, quoting Struthers v.

Williams, 7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-6637, ¶ 15. See also

State v. Vielma, 3d Dist. Paulding No. 11-11-03, 2012-Ohio-875, ¶ 37. “‘A

defendant who only used non-deadly force to defend himself need not fear death

or great bodily harm in order to use non-deadly force in self-defense.’” Kimmell

at ¶ 20, quoting Williams at ¶ 16. “Rather, the defense still applies if the force

used was reasonable under the circumstances to protect oneself.”        Id., citing

Williams at ¶ 16. “Furthermore, there is no duty to retreat before using non-deadly

force in self-defense like in deadly force cases.” Id., citing Williams at ¶ 16.

“Self-defense, however, is inappropriate if the force used is ‘so grossly


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disproportionate as to show revenge or as criminal purpose.’” Id., quoting State v.

Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-4416, ¶ 33.                  “If a

defendant fails to prove any one of the elements of self-defense by a

preponderance of the evidence, he has failed to demonstrate that he acted in self-

defense.” Id. at ¶ 21, citing State v. Jackson, 22 Ohio St.3d 281, 284 (1986).

       {¶11} At trial, the State called Timothy, who testified that, on July 31,

2014, he learned that Wagner defaced a sign advertising Timothy’s business.

(Mar. 2, 2015 Tr. at 100-101). According to Timothy, he called the sheriff, and

Seneca County Sheriff’s Office Lieutenant Brian Hescht (“Hescht”) responded,

took the report about the damaged sign, and told Timothy not to go to the Blue

Eagle Bar where Wagner was that evening. (Id. at 100, 103). Timothy testified

that he told Hescht that he was nevertheless going to go to the Blue Eagle Bar “to

confront [Wagner], to look him in the eye, and * * * ask him why he damaged the

sign.” (Id. at 103-104). According to Timothy, it was hot out that night, so in

only a pair of shorts and flip-flops, and no shirt, he went to the Blue Eagle Bar.

(Id. at 102). When he arrived, he went “out back” where Wagner was and “said

something to [Wagner] about why he would damage the sign.” (Id. at 104).

Wagner did not respond to Timothy, but another patron who was at the bar with

Wagner, Brian Cook (“Cook”), told Timothy “it had been done two days before.”

(Id. at 104-105).


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       {¶12} Timothy testified that Wagner “immediately walked in the bar,” then

Timothy “turned around and walked back in the bar.” (Id. at 104). Wagner “was

about 6 or 8 feet in front of [Timothy].” (Id.). Timothy testified, “[Wagner]

turned to look at me to make sure where I was at, and he reached over, grabbed the

pool stick off the pool table, and swung it at me with everything he had.” (Id. at

105). According to Timothy, Wagner swung the pool stick toward Timothy’s

head but hit him in the elbow when Timothy raised his arm to deflect the blow.

(Id. at 107-108). After that, Timothy “steadily hit [Wagner] with a right” fist, and

“it became a struggle for the stick.” (Id. at 108). According to Timothy, he and

Wagner went to the ground and continued fighting each other. (Id. at 110).

Timothy testified that he “really felt [his] life was in jeopardy” because Cook

entered the bar and “started punching [Timothy] in the face,” and Wagner “was

still trying to hit [Timothy] with the pool stick from the bottom.” (Id.). According

to Timothy, before Wagner swung the pool stick at him, Timothy never made “any

threats of any kind against [Wagner],” and Timothy did not run after or chase

Wagner or act physically aggressive toward Wagner. (Id. at 105-107). As a result

of the incident, Timothy was charged with domestic violence but pled guilty to

disorderly conduct. (Id. at 118-119).




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       {¶13} On cross-examination, Timothy admitted that he pursued Wagner

when Wagner went from the back patio into the bar but added that he did so

“[c]almly.” (Id. at 122).

       {¶14} Hescht testified for the State.      (Id. at 145).    Hescht testified,

“[Timothy] wanted to try to locate [Wagner] and confront him and ask him why he

did the damage to the sign. I advised him that I did not suggest that, to let me

make contact with him and let me speak with him about it to see if, in fact, he is

the one that did that.” (Id. at 150).    According to Hescht, Timothy “got in his

vehicle and he left the area” after speaking with Hescht about the sign. (Id.).

Hescht finished his paperwork and then drove toward Bettsville because Timothy

said he believed Wagner was there. (Id. at 151). Hescht intended to locate

Wagner to inquire about the vandalized sign. (Id. at 151-152). Once in Bettsville,

when he was two blocks from the Blue Eagle Bar, Hescht received a dispatch

about an incident at the Blue Eagle Bar in which “a male * * * was assaulted by

another male using a cue stick.”        (Id. at 147, 152).   As he pulled up, he

encountered Timothy who was walking out of the bar and was “hopping around

waving his arms in the air” and “very excited, yelling.” (Id. at 148, 152). When

Timothy did not heed Hescht’s directive to calm down, Hescht placed Timothy in

protective custody, handcuffed in the back of Hescht’s patrol vehicle. (Id. at 152).




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       {¶15} Hescht entered the bar and spoke with Wagner, who “had an odor of

alcohol on his breath,” exhibited slurred speech, and “was lethargic.” (Id. at 154).

Hescht radioed for an ambulance for Wagner, per Wagner’s request. (Id.). Hescht

interviewed witnesses at the bar, but none saw who started the physical altercation

between Wagner and Timothy. (Id. at 154-156). One witness, the bartender,

informed Hescht that she directed Timothy to the back patio of the bar when he

came in and asked if the two men were there. (Id. at 155). Another witness, who

was on the back patio, told Hescht that Timothy questioned Wagner about the

vandalized sign, at which time Wagner walked into the bar. (Id. at 155-156).

According to Hescht, the witness who was on the back patio “said that neither

party made any threats to one another.” (Id. at 156).

       {¶16} During his investigation, Hescht observed video footage, State’s

Exhibit 4, from two of the bar’s security cameras. (Id. at 158-162). Hescht

explained his observations from the video:

            It was [Wagner] walked in through the back door and then

       [Timothy] was about 10 feet behind him and walked in behind him,

       and then it showed [Wagner] walking up to one of the pool tables

       that were at the back of the bar, reached down, and picked up a cue

       stick, a pool stick, brought it up like this (indicating), turned, kind of




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       cocked it up just a little bit a split second, and then showed him like

       you would swing a baseball bat.

            He swung it, you know, at [Timothy]. And the video showed

       that [Timothy] put his arm up. It looked like he was struck with his

       left arm. Then he grabbed the pool stick, and the two brothers

       started to struggle. Timothy took [Wagner] to the ground.

            And once they were on the ground, you can see on the video

       where the bartender hears the commotion. She comes around. Two

       parties come from the back patio and see the commotion, and at that

       point, these parties try to separate the two of them.

(Id. at 159-160). Hescht elaborated on Wagner’s and Timothy’s movements when

they entered the bar from the back patio:

            Both of the individuals, when they walked back in, it seemed to

       be a normal pace, a normal walk.

            There was no hurry, there was no flaring of arms. Everything

       seemed to be normal until they got to the pool table and grabbed the

       pool stick and turned around at that point.

(Id. at 161). According to Hescht, in the video, he did not observe Timothy

“become physical” at any time with Wagner until Wagner took a “full swing” of

the pool stick toward Timothy. (Id. at 162). Hescht testified that, in the video, he


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did not observe Timothy presenting any immediate threat of physical harm to

Wagner. (Id.).

      {¶17} Wagner was released from the hospital approximately one and one-

half to two hours after Hescht cleared the scene at the Blue Eagle Bar that evening.

(Id. at 168). At that point, Hescht talked to Wagner and told him he observed the

video of him striking Timothy with a pool stick:

            When I made contact with him, I advised him that I had viewed

      the footage of the incident that had happened at the Blue Eagle Bar

      and advised him that I’d observed him strike his brother, Timothy,

      with a pool stick.

            And I’d asked him if that was an accurate depiction of what I’d

      seen, and he stated to me yes, that he did. I asked him why he did

      so. And he was cooperative with me in speaking and he basically

      stated that he’s not sure why he did.

(Id. at 168-169). Hescht testified that, at that time, Wagner made no assertions

that Timothy threatened him verbally or physically. (Id. at 169). According to

Hescht, “The only thing that [Wagner] stated was that his brother kept confronting

him about the damage, the sign, and asking him why he did it or if he did it. He

made no indication to me that there was any type of threatening.” (Id.). At that

point, Hescht arrested Wagner for domestic violence. (Id. at 170).


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        {¶18} On    cross-examination,   Hescht    acknowledged     that   the   case

concerning the vandalized sign is still pending and has not been solved. (Id. at

179).   According to Hescht, Wagner wanted domestic violence charges filed

against Timothy “because his brother assaulted him.” (Id. at 180-181). Wagner

never told Hescht that he was in fear of Timothy. (Id. at 181).

        {¶19} After the State rested, Wagner testified in his defense. (Id. at 184).

He described what happened after he and Cook went to the back patio of the Blue

Eagle Bar:

             Well, I just happened to turn around and look, and [Timothy]

        was talking to somebody. And I could tell by his demeanor, just by

        the way he was like this (indicating) with his fists balled up and his

        eyes were just as big as saucers, and he was looking at me, and I ran.

        The video doesn’t show full time what happened.

             ***

             I seen him and I knew I was in trouble immediately. That’s

        why I took off. And I don’t know. He was behind me because I

        could feel him. He was behind me. The video doesn’t show him

        grabbing me. But I came through the door.

             I seen the pool stick and I grabbed it and he was right there. I

        was scared for my life.


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(Id. at 185-186).   Wagner testified that he “was out of there” when he saw

Timothy “with his fists balled and no shirt on” because he could tell Timothy “was

going to fight.” (Id. at 188). Wagner elaborated, “I didn’t want nothing to do with

him. But when I knew that he was behind me, I knew that he was coming after

me. I had no choice, because I was going to go down. He was going to severely

hurt me.” (Id. at 189). Wagner testified that he was “severely hurt” in the fight as

a result of Timothy “beating on [him] while [he] was out cold.” (Id.). According

to Wagner, he does not remember anything “after the first hit.” (Id. at 190).

       {¶20} On cross-examination, Wagner testified that he was not intoxicated

and ingested only one or two beers before Timothy arrived at the bar. (Id. at 193-

195). According to Wagner, Timothy came lumbering onto the back patio with

his arms braced, but Wagner could not recall Timothy making any verbal threats

toward him at that time. (Id. at 194). Wagner testified that he was “running”

when he entered the bar from the back patio and that the security video is “kind of

slow motion, compared to what happened” and “not in real-time.” (Id. at 195-

196). Wagner conceded that the security video bears a time-stamp displaying

seconds in real-time; however, Wagner stated that the video has “got kind of

lapsed time.” (Id. at 197). Wagner agreed that he chose to swing the pool stick at

Timothy and that the security video did not reveal an immediate threat to Wagner,




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but Wagner testified that he swung the pool stick at Timothy because Wagner felt

that Timothy was going to hurt him:

      [State’s Counsel]: So as to the incident having occurred, you came

                         out of the back, he followed you, as we saw in the

                         video. I think the video’s pretty clear that you

                         deliberately stopped at the pool table, chose to

                         pick up that pool stick, and turn around and take a

                         swing at your brother, don’t you think?

      [Wagner]:          Yes. But I think it was also clear that he was

                         following me for a reason. And that was to hurt

                         me.

      ***

      [State’s Counsel]: Okay. You had your back to him, correct?

      [Wagner]:          Yes. And I should know never to put my back to

                         him. I should have known that.

      [State’s Counsel]: So you weren’t so scared that you were watching

                         him. You deliberately stopped at the pool table.

                         Even before you pick up the cue, you look back

                         and you hesitate, don’t you?

      [Wagner]:          I guess, yes. He’s right behind me.


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      [State’s Counsel]: Obviously there’s no immediate fear there if you

                        stand there and wait to see what’s going to

                        happen.

      [Wagner]:         That’s the way it looks in the video.

      [State’s Counsel]: Okay. And so you pick up the pool cue and you

                        turn around and you hesitate again. You hold it

                        above your head like this (indicating) before you

                        take the swing, don’t you?

      [Wagner]:         Yeah. Yes.

      [State’s Counsel]: So you’re making a choice in that moment to take

                        that swing, don’t you?

      [Wagner]:         I would say. Yes.

      [State’s Counsel]: And what’s Timothy doing at that point in time?

                        He’s just standing there, isn’t he? I mean, he’s

                        not rushing at you, is he?

      [Wagner]:         He was.

      [State’s Counsel]: He’s rushing at you?

      [Wagner]:         He was.

      [State’s Counsel]: He’s getting down, getting ready to make a move

                        to plow right into you?


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                          He’s standing there just watching you, isn’t he?

       [Wagner]:          Yeah.

       ***

       [State’s Counsel]: He wasn’t doing anything to you. He was just

                          standing there.

       [Wagner]:          Yeah.

(Id. at 200-202, 207). Wagner acknowledged that he did not tell Hescht, when

interviewed at the hospital on the night of the incident, that he was in fear of

Timothy. (Id. at 205-206). Wagner acknowledged that he has two prior domestic-

violence convictions, but he at first denied having been convicted of any crime of

dishonesty. (Id. at 208-210). Once the State’s counsel presented him with an

entry from the Tiffin Municipal Court reflecting a conviction for theft one and

one-half years before, Wagner agreed that he had been convicted of a crime of

dishonesty. (Id. at 211-212).

       {¶21} We first address the first element of self-defense—“the defendant

was not at fault in creating the situation giving rise to the affray.” Kimmell, 2011-

Ohio-660, at ¶ 19. Wagner argues that he “had no part in causing the situation,

and in fact he immediately tried to leave.” (Appellant’s Brief at 9). He also

argues that Timothy “went searching for [Wagner], looking for a fight,” despite

Hescht admonishing Timothy not to confront Wagner. (Id.). Wagner is correct


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that Timothy, not he, initially created the situation giving rise to the affray. But

Wagner overlooks that the evidence demonstrated that he escalated the situation

from a verbal confrontation to a physical altercation.

       {¶22} Under this first element of self-defense, a defendant must “show that

he was not ‘at fault’ in creating the situation; that is, that he had not engaged in

such wrongful conduct toward his assailant that the assailant was provoked to

attack the defendant.” State v. Gillespie, 172 Ohio App.3d 304, 2007-Ohio-3439,

¶ 17 (2d Dist.). In this case, evidence demonstrates that Wagner engaged in

wrongful conduct—namely, striking Timothy with a pool stick—that provoked

Timothy to fight back. Timothy testified that, before Wagner struck him with the

pool stick, Timothy made no threats to Wagner and “walked” into the bar “about 6

to 8 feet” behind Wagner. Hescht testified that the security video showed that

Wagner and Timothy walked into the bar from the patio at a “normal pace, a

normal walk.” Contrary to Wagner’s dubious contention, the security video is in

real-time. (See State’s Ex. 4). One of the eyewitnesses, who was at the back

patio, said that neither Timothy nor Wagner threatened the other. In other words,

evidence demonstrates that the skirmish was at most a verbal argument before

Wagner swung the pool stick at Timothy.

       {¶23} On the other side, Wagner testified: that Timothy was shirtless, and

his fists were balled up; that the security video did not show Timothy grabbing


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him before Wagner resorted to the pool stick; and that Timothy was “rushing” at

him in the bar. However, Wagner’s testimony is undermined not only by that of

Timothy and Hescht, but also by his own testimony. Wagner admitted on cross-

examination that Timothy was “just standing there.” The security video also

undermines Wagner’s testimony. In it, Timothy’s fists are not “balled up,” and he

is walking into the bar several feet behind Wagner and at a pace no faster than

Wagner’s.    (State’s Ex. 4).    In short, the jury had a “‘superior, first-hand

perspective in judging the demeanor and credibility of witnesses,’” and it

understandably chose to place greater weight with Timothy’s and Hescht’s

testimony and the security video. State v. Suffel, 3d Dist. Paulding No. 11-14-05,

2015-Ohio-222, ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79,

2014-Ohio-5162, ¶ 125, citing State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. Therefore, we conclude that the manifest weight of

the evidence as to the first element of self-defense does not indicate that the jury

clearly lost its way. See State v. Horne, 2d Dist. Montgomery No. 18559, 2001

WL 1345952, *3 (Nov. 2, 2001) (concluding that the jury was justified in rejecting

the defendant’s affirmative defense of self-defense because, as to the first element,

the defendant “caused the escalation” of an existing confrontation).

       {¶24} The second element of self-defense that Wagner was required to

prove was: “the defendant (even if mistaken) had a bona fide belief (which means


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a belief that was both objectively reasonable and subjectively honest) that he was

in imminent danger of any bodily harm (whether it be deadly or non-deadly).”

Kimmell, 2011-Ohio-660, at ¶ 19. Wagner testified that he was “scared for [his]

life.”   However, Hescht testified, and Wagner admitted, that Wagner did not

inform Hescht of this during their interview at the hospital a couple hours after the

incident. In fact, Wagner told Hescht that he did not know why he struck Timothy

with the pool stick. Finally, the jury observed Wagner initially deny having a

conviction for a crime of dishonesty, then recant his denial when confronted with

the entry proving his conviction for theft. In sum, the jury was free to conclude

from this evidence that Wagner did not possess a subjectively honest belief that he

was in imminent danger of bodily harm.

         {¶25} The jury was also free to conclude that any subjective belief by

Wagner that he was in imminent danger of bodily harm was not objectively

reasonable. Wagner admitted on cross-examination that the security video did not

reveal an immediate threat to Wagner and that Timothy was “just standing there.”

The security video reveals, as Hescht testified, that Timothy walked into the bar

from the patio at a “normal pace.” Timothy is not “rushing” Wagner in the

security video, as Wagner testified. (State’s Ex. 4). Nor are Timothy’s fists

clenched. (Id.). And while there is no audio to the security video, Timothy

testified that he did not threaten Wagner, Wagner testified that he could not recall


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Timothy making any verbal threats toward him when he entered the back patio,

and an eyewitness on the back patio heard no threats. Therefore, we conclude that

the manifest weight of the evidence as to the second element of self-defense does

not indicate that the jury clearly lost its way.

       {¶26} For the reasons above, Wagner failed to prove the elements of self-

defense, and we cannot conclude that the jury clearly lost its way and created such

a manifest miscarriage of justice that Wagner’s domestic-violence conviction must

be reversed and a new trial ordered.

       {¶27} Wagner’s assignment of error is overruled.

       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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