[Cite as State v. Coleman, 2018-Ohio-1951.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27666
                                                    :
 v.                                                 :   Trial Court Case No. 17-CRB-3679
                                                    :
 DWAYNE D. COLEMAN                                  :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                                Rendered on 18th day of May, 2018

                                               ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, City of Dayton Prosecutor’s Office, 335 W.
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

MICHAEL H. HOLZ, Atty. Reg. No. 0031902, 507 Wilmington Avenue, Suite 2, Dayton,
Ohio 45420
      Attorney for Defendant-Appellant

                                              .............
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FROELICH, J.

       {¶ 1} Dwayne D. Coleman appeals from a judgment of the Dayton Municipal Court,

which found him guilty of assault, a misdemeanor. The trial court sentenced him to 180

days in jail; he received jail time credit of 12 days, and the balance of the sentence was

suspended. The court placed him on non-reporting community control and ordered him

not to return to the store where the incident occurred.

       {¶ 2} Coleman appeals, raising one assignment of error, arguing that his

conviction was against the manifest weight of the evidence.

       {¶ 3} The incident in question occurred on June 8, 2017; Coleman was charged

with assault by complaint on June 9, 2017. The matter was tried to the court on June

20, 2017. The evidence at trial was as follows.

       {¶ 4} Darnell Pate testified that he worked as an armed security officer at an Aldi

store on June 8, 2017. He encountered Coleman just as the store was closing for the

night. Coleman placed several items on the conveyor belt at a checkout lane, reached

into his pockets, and then left the store without taking the items on the belt with him. Pate

thought this behavior was suspicious and was concerned about shoplifting.

       {¶ 5} Pate followed Coleman outside the store and asked Coleman to step back

inside the store to talk. When Pate “gesture[d] [Coleman] back in the store” and touched

“his shoulder area” with an open hand, Coleman “seemed to get agitated” and hit Pate in

the right arm with a closed fist. Pate “grabbed” Coleman and walked him into the store.

Pate informed Coleman that he (Pate) was going to put Coleman in handcuffs, “just so it

[sic] wouldn’t be anymore physical altercation,” but when Pate attempted to put Coleman

in handcuffs, Coleman hit Pate in the side of the head with a closed fist. Pate testified
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that he believed he was hit in the head “just twice,” but that he was not sure because the

event unfolded very quickly. Pate then succeeded in getting Coleman in handcuffs, and

the Dayton Police were called. Coleman was not found to be in possession of any stolen

property.

       {¶ 6} A cashier who was working at Aldi on the night of June 8, 2017, testified

that, at closing time, she observed the “scuffle” or “power struggle” involving the security

guard (who was known to her only as “Darnell”) and Coleman through the glass doors at

the front of the store. She testified that she saw Coleman hit Pate, but she could not tell

where Pate was hit.     The cashier believed both men had been “struck” during the

altercation, because she “saw lots of hands.”

       {¶ 7} Dayton Police Officer Paul Rice responded to the Aldi on the night in

question concerning a report that a “shoplifter was in custody.” He later learned that

nothing was actually taken from the store, but that Coleman had allegedly assaulted a

security guard.

       {¶ 8} At the close of the State’s case, Coleman moved for a Crim.R. 29 judgment

of acquittal, which the court denied. The defense did not present any witnesses.

       {¶ 9} Defense counsel argued in closing argument that Coleman had acted in

self-defense, because in the absence of any theft, Pate had no right to touch Coleman,

to ask him to return to the store, or to engage in “false imprisonment”; Coleman argued

that, like any other private citizen, Pate should have “call[ed] the police and give[n] a

report.” The State argued that Coleman’s response to Pate’s initial contact with him was

“completely unreasonable” and constituted assault, and that Coleman did not act in self-

defense because his use of force was unreasonable.
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       {¶ 10} The trial court found that Pate had acted as a private citizen, not as a law

enforcement officer, during his interaction with Coleman; therefore, questions of

“reasonable suspicion” and “probable cause” did not apply, as there was “no government

action.” The court further concluded that, although Pate was well-intentioned, he “was

wrong to follow [Coleman]. He was wrong to touch him.” Nonetheless, the court found

that Pate did not do anything to cause Coleman harm and that Coleman was not justified

in his use of force against Pate. As such, the court found Coleman guilty of assault.

       {¶ 11} When reviewing an argument challenging the weight of the evidence, an

appellate court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses, and determines whether, in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 12} For purposes of this case, assault is defined as knowingly causing or

attempting to cause physical harm to another. R.C. 2903.13(A). Pate and the Aldi

cashier testified that Pate and Coleman were involved in a physical altercation in front of

the store. Pate testified, more specifically, to the progression of events and to Coleman’s

resort to violence when Pate tried to escort Coleman back into the store. On this record,

we cannot conclude that the trial court erred in weighing the evidence as it did and in

finding that Coleman assaulted Pate.

       {¶ 13} The trial court reasonably rejected Coleman’s assertion that he acted in

self-defense. We have set forth the law on self-defense involving the use of a non-
                                                                                         -5-


deadly force, as follows:

       [A] defense of self-defense involving the use of non-deadly force requires

       proof that: (1) the defendant was not at fault in creating the situation giving

       rise to the altercation; and (2) that the defendant had reasonable grounds

       to believe and an honest belief, even though mistaken, that the defendant

       was in imminent danger of bodily harm and the only means of protecting

       himself or herself from that danger was by the use of force not likely to cause

       death or great bodily harm. [Citations omitted.]

State v. Pigg, 2d Dist. Montgomery No. 25549, 2013-Ohio-4722, ¶ 36. Self-defense is

an affirmative defense on which the defendant has the burden of proof. State v.

Thomason, 2d Dist. Montgomery No. 27500, 2018-Ohio-1228, ¶ 23, citing State v. Oates,

2013-Ohio-2609, 993 N.E.2d 846, ¶ 10 (3d Dist.),

       {¶ 14} Based on the evidence presented in this case, the trial court did not lose its

way or create a manifest miscarriage of justice in concluding that Coleman did not meet

his burden to show that he had reasonable grounds to believe and an honest belief that

he was in imminent danger of bodily harm and that the only means of protecting himself

from that danger was by the use of force.

       {¶ 15} The assignment of error is overruled.

       {¶ 16} The judgment of the trial court will be affirmed.

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

WELBAUM, P. J. and DONOVAN, J., concur.


Copies mailed to:

Amy B. Musto
                        -6-


Michael H. Holz
Hon. Deirdre E. Logan
