[Cite as State v. Grant, 2020-Ohio-3055.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2019-CA-13
                                                 :
 v.                                              :   Trial Court Case No. 2019-CRB-001-
                                                 :   225
 SHAWN H. GRANT                                  :
                                                 :   (Criminal Appeal from Municipal Court)
         Defendant-Appellant                     :
                                                 :


                                            ...........

                                            OPINION

                              Rendered on the 22nd day of May, 2020.

                                            ...........

JESSE J. GREEN, Atty. Reg. No. 0040265, Assistant Prosecuting Attorney, Darke
County Prosecutor’s Office, 504 South Broadway, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

JENNIFER E. MARIETTA, Atty. Reg. No. 0089642, P.O. Box 37, Xenia, Ohio 45385
     Attorney for Defendant-Appellant

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

TUCKER, P.J.
                                                                                       -2-


        {¶ 1} Defendant-appellant Shawn H. Grant appeals from his conviction for

domestic violence. Grant contends the conviction must be reversed because the trial

court erred in instructing the jury. He further contends he was not provided effective

assistance of counsel. Finally, he claims the State did not present evidence sufficient to

sustain the conviction and that the conviction was against the manifest weight of the

evidence. For the reasons set forth below, we affirm.



                            I.     Facts and Procedural History

        {¶ 2} Grant resides in Arcanum with his son, Shane Grant. Grant’s other son,

Levon, resided next door with his girlfriend.1 Levon was in Grant’s home on April 16,

2019 when he, Grant, and Shane engaged in a physical altercation that left Levon with

numerous injuries. Following an investigation, Grant was charged with one count of

domestic violence in violation of R.C. 2919.25(A). The case proceeded to trial in August

2019.

        {¶ 3} The State presented the testimony of Levon, who indicated he received a

message from Grant that he (Grant) wanted to talk about his washing machine, which

was not working. Levon went to his father’s residence to try to fix Grant’s washing

machine. Levon testified he entered the house, “exchanged a couple pleasantries” with

his father, then went downstairs to work on the washer. Tr. p. 66. He worked for

approximately half an hour but was unable to figure out what was wrong with the machine.

Levon testified he returned upstairs and informed Grant that he could not repair the



1
 Because the three men involved in the altercation share the same last name, we will
refer to the defendant as “Grant,” and we will refer to his sons by their first names.
                                                                                          -3-


washer. He then told his father he would research the issue and return later to work on

the washer.

       {¶ 4} According to Levon, his father began to speak to him in a derogatory manner

and ordered him to get out of the house. Levon testified that he remained where he was

and told his father to stop treating him badly. He testified that his father stood up and

said, “get the f**k out now.” Tr. p. 69. Grant then told Shane, who was standing behind

Levon, to make Levon leave.

       {¶ 5} Levon testified that Shane tapped him on the shoulder and told him he

“probably should go.” Tr. p. 69. Shane then tugged at Levon’s arm. At that point,

Levon began to yell at Grant. According to Levon, Grant raised his walking cane above

his head and said, “get the f**k out or I’m going to kill you.” Tr. p. 69-71. Levon testified

that Grant told Shane to get Levon, at which point Shane grabbed Levon in a headlock

and began punching him in the side of the head. Grant then hit Levon four times with

the cane. Levon grabbed the cane, and he and Shane fell to the floor. Shane continued

to hit Levon while Grant proceeded to throw a ceramic lamp and a shoe rack. Grant then

dumped a bucket of tools onto the floor and retrieved a roofing hammer. Levon testified

that he began to yell for help as Grant approached him with the hammer. Grant swung

the hammer twice at Levon but failed to hit him. Another brother, who had been in the

kitchen, yelled for everyone to stop. Levon was then able to crawl out the door and yell

for help. He was taken to a local hospital by ambulance where he was treated for his

injuries, which included multiple contusions and abrasions to his head as well as cuts to

his legs and arms.

       {¶ 6} The State also presented the testimony of Levon’s girlfriend Rikki Roach who
                                                                                     -4-


lived with Levon and their infant. Roach was inside her house when she heard Levon

yelling. Roach went outside to investigate and found Levon on the ground between the

houses. She testified “the top of his head was bright red and he had light foam coming

out of his mouth and he was complaining he couldn’t breathe.” Tr. p. 113-114. She

testified that Grant began to scream at her and told her to keep Levon away from him or

he would kill him. Roach called 911.

       {¶ 7} Arcanum Police Officer Erika Cook responded to the scene, where she

observed Levon on the ground in the yard. She testified that said he complained of

difficulty breathing, and she noted white foam coming from his mouth. She testified that

she followed the ambulance to the hospital where she took pictures of Levon’s injuries,

which included bruising to the entire right side of his head.

       {¶ 8} After the State rested its case, Grant presented the testimony of Shane.

Shane testified he was in the basement when he heard Levon and Grant arguing. He

testified Levon refused to leave the house despite being told to do so. Shane testified

he tried to slowly push Levon toward the door, but Levon kept trying to move toward

Grant. Shane described himself as “sumo wrestling” with Levon in order to keep him

from approaching Grant. Tr. p. 145. According to Shane, he and Levon fell to the floor

and Levon landed on the shoe rack, which broke. He further testified that Levon broke

the lamp when he tried to get up off the floor. Shane claimed he was eventually able to

get Levon to the door and Levon then walked out of the house. He testified that neither

he nor Grant followed. Shane testified that neither he nor Grant hit Levon.

       {¶ 9} On cross-examination, Shane testified that Levon had come to the home at

Grant’s request to fix the washing machine. When asked, Shane was unable to account
                                                                                           -5-


for the cause of Levon’s injuries. However, he continued to deny having hit Levon and

also denied placing him in a headlock. He speculated that Levon had rolled in the gravel

between the houses. When the prosecutor asked him about discrepancies between his

testimony and his statement to the police, Shane denied giving a false statement to the

police. The prosecutor then asked Shane if his statement had been accurate. Shane

stated, “I refuse to answer.” The trial court then asked why he would not answer and

Shane stated, “It may incriminate me.” Tr. p. 163. The trial court ordered him to answer

the prosecutor’s question, in response to which Shane indicated that his statement to the

police had been accurate except he had omitted “the detail of me pushing [Levon] to the

door.” Id.

        {¶ 10} The jury convicted Grant of domestic violence. The trial court sentenced

him to a term of 30 days in jail with 26 days suspended. The parties agreed to restitution

in the amount of $15,185, which represented the amount of Levon’s medical bills.

        {¶ 11} Grant appeals.



                                II.   Self-Defense/Castle Doctrine

        {¶ 12} Grant asserts the following as his first assignment of error:

        THE JURY INSTRUCTIONS DID NOT INCLUDE AN INSTRUCTION

        REGARDING THE CASTLE DOCTRINE DEFENSE AND PRESUMPTION

        UNDER R.C. 2901.05(B).

        {¶ 13} Grant contends the trial court abused its discretion by failing to instruct the

jury on the castle doctrine and the presumption of self-defense when within one’s own

home.
                                                                                              -6-


          {¶ 14} “A court's jury instructions must be based on the actual issues in the case

as presented by the evidence. * * * Thus, a court should not give an instruction unless it

is specifically applicable to the facts in the case.” State v. Fritz, 163 Ohio App.3d 276,

2005-Ohio-4736, 837 N.E.2d 823, ¶ 19 (2d Dist.), citing State v. Guster, 66 Ohio St.2d

266, 421 N.E.2d 157 (1981) (additional citations and internal quotation marks omitted).

“Ordinarily, the trial court has discretion to decide to give or refuse a particular instruction,

and an appellate court will not disturb that decision absent an abuse of discretion.” State

v. Lipkins, 2017-Ohio-4085, 92 N.E.3d 82, ¶ 28 (10th Dist.), citing State v. Teitelbaum,

2016-Ohio-3524, 67 N.E.3d 85, ¶ 127 (10th Dist.). In this case, the plain-error standard

applies in our review of this claimed error, because Grant did not request or object to the

failure to give instructions on self-defense or the castle doctrine.

          {¶ 15} A defendant is entitled to an instruction on self-defense when the evidence

establishes “(1) that he was not at fault in creating the violent situation, (2) that he had a

bona fide belief that he was in danger of imminent death or great bodily harm and that

the only means of escape was by use of force, and (3) that he did not violate any duty to

retreat or avoid the danger.” State v. Reid, 2019-Ohio-1542, 135 N.E.3d 517, ¶ 20 (1st

Dist.).

          {¶ 16} The castle doctrine relates to the duty to retreat element of self-defense

because it recognizes an exception to the duty to retreat when a defendant is in his own

home. State v. Edwards, 1st Dist. Hamilton No. C-110773, 2013-Ohio-239, ¶ 6. The

“doctrine takes its name from the maxim that a person's home is his or her ‘castle.’ ” The

doctrine is codified at R.C. 2901.09(B), which provides that “a person who lawfully is in

that person's residence has no duty to retreat before using force in self-defense, defense
                                                                                           -7-


of another, or defense of that person's residence.” (Citations omitted.) State v. Martin,

2d Dist. Montgomery No. 27220, 2017-Ohio-7431, ¶ 40.

       {¶ 17} “In 2008, the Ohio General Assembly, with the enactment of S.B. No. 184,

expanded the reach of the Castle Doctrine under the common law by creating a

presumption under former R.C. 2901.05(B)(1) that a person acts in self-defense ‘when

using defensive force that is intended or likely to cause death or great bodily harm to

another if the person against whom the defensive force is used * * * has unlawfully and

without privilege to do so entered the residence * * * occupied by the person using the

defensive force.’ ” State v. Guice, 2019-Ohio-1324, 133 N.E.3d 874, ¶ 36 (10th Dist.).

       {¶ 18} Self-defense is a defense that acts to relieve a defendant of criminal liability

for any force the defendant used. State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-

4814, 959 N.E.2d 1097, ¶ 22 (8th Dist.). Significantly, the defense does “not seek to

negate any of the elements of the offense which the State is required to prove.”

(Citations omitted.) State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 23 (2d Dist.).

Instead, a claim of self-defense rests upon the admission of the conduct claimed by the

State as to the underlying offense and then relies on other facts and circumstances to

exempt the defendant from liability for the use of that force. Id.

       {¶ 19} To prove that Grant committed domestic violence, the State was required

to establish that he knowingly caused or attempted to cause physical harm to Levon.

The State presented Levon’s testimony, which indicated both that Grant hit him in the

head with the cane and attempted to hit him with a hammer. The State also presented

evidence of physical harm. At no time did the defense admit the facts claimed by the

prosecution. While Grant did not testify at trial, he attempted to negate the elements of
                                                                                        -8-


the offense through Shane’s testimony that Grant never hit, or attempted to hit, Levon

with either the cane or the hammer.

       {¶ 20} This record demonstrates that self-defense was not a theory of the case

pursued by Grant at trial. Instead, Grant’s trial strategy was based upon the claim that

he was not physically involved in the altercation and never hit Levon. This theory of the

case suggests that he did not act knowingly and did not cause physical harm to Levon.

Such a strategy is inconsistent with self-defense, which concedes that the defendant had

the purpose to commit the act, but asserts that he was justified in his actions. In other

words, Grant could not have been acting in self-defense if, as he claims, he did not act at

all.

       {¶ 21} Based upon this record, we conclude Grant’s trial strategy sought to

convince the jury that he did not cause or attempt to cause physical harm to Levon.

Therefore, we conclude that instructions on self-defense, the castle doctrine and the

presumption set forth in R.C. 2901.05(B) were not justified, and the trial court did not

commit error, let alone plain error, in failing to give such instructions.

       {¶ 22} Accordingly, the first assignment of error is overruled.



                            III.   Ineffective Assistance of Counsel

       {¶ 23} Grant’s second assignment of error states as follows:

       COUNSEL FOR DEFENDANT WAS INEFFECTIVE, SUCH THAT THE

       OUTCOME OF THE TRIAL WAS NEGATIVELY IMPACTED BY

       COUNSEL’S PERFORMANCE.

       {¶ 24} Grant claims he was denied the effective assistance of counsel at trial.
                                                                                           -9-


Specifically, he asserts counsel was deficient with regard to jury selection and jury

instructions.   He also asserts counsel was ineffective because he failed to raise

objections to questions asked by the prosecutor.

       {¶ 25} To succeed on an ineffective assistance claim, a defendant must establish

his trial counsel's performance was deficient and the deficient performance prejudiced

him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraph two of the syllabus. The failure to make a showing of either deficient

performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland

at 697. In evaluating counsel's performance, “a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶ 26} We begin with the jury instructions. Grant claims counsel should have

asked for jury instructions on self-defense and the castle doctrine. In support, he cites

this court’s holdings in State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128 (2d Dist.), State

v. Patterson, 2d Dist. Greene No. 2015-CA-57, 2016-Ohio-2750, and State v. Fritz,163

Ohio App.3d 276, 2005-Ohio-4736, 837 N.E.2d 823 (2d Dist.) for the proposition that

counsel is ineffective for failing to request such instructions.

       {¶ 27} “Generally, the failure to request jury instructions is purely a matter of trial

tactics and will not be disturbed upon review.” State v. Herrington, 9th Dist. Summit No.

25150, 2010-Ohio-6455, ¶ 11, citing State v. Clayton, 62 Ohio St.2d 45, 47-49, 402
                                                                                         -10-


N.E.2d 1189 (1980). However, in the cases cited by Grant, we found counsel ineffective

for failing to request self-defense instructions because there was some evidence

presented in each case upon which jurors could have found the defendant acted in self-

defense. Specifically, in Brown, the defendant admitted to hitting the victim. Brown at

¶ 14. Likewise, the defendant in Patterson testified that he shoved the victim and also

pushed the victim into a wall. Patterson at ¶ 7. The defendant also testified he hit, bit

and slapped the victim. Id. Finally, in Fritz, the defendant testified that he used force to

remove his perceived attacker’s hand from his face. Fritz at ¶ 23.

       {¶ 28} As stated above, there was no evidence presented in this case upon which

a jury could find Grant acted in self-defense. This failure was designed to demonstrate

Grant did not use any force whatsoever against Levon. Trial counsel was not required

to seek instructions that were incompatible with that chosen trial strategy. Accordingly,

we cannot conclude trial counsel’s conduct was deficient in this regard.

       {¶ 29} Grant next asserts trial counsel was deficient regarding the selection of the

jury. Of relevance to this claim, the record reveals the parties concluded jury questioning

and the State declined to utilize any of its peremptory challenges. Thereafter, Grant

used his allotted peremptory challenge to excuse a juror, and another juror was called

into the box. This juror, to whom we will refer as Juror X, had previously indicated that

he was neighbors with Officer Cook.       In response to additional questions about his

relationship with Cook, Juror X stated, “We - - you know, we see each other out, we say

‘hi.’ We communicate. We don’t snub each other but we don’t - - we’re just in passing.

We don’t go hang out at each other’s house or anything.” Tr. p. 45. Juror X also

indicated he would be fair and impartial in deciding the case. Grant sought to remove
                                                                                          -11-


Juror X for cause but the trial court denied the request.

       {¶ 30} Grant argues “the Prosecutor outmaneuvered Defense Counsel in Jury

Selection so as to place a neighbor of the investigating officer on the jury.” He also notes,

“although it may not suffice for a challenge to ineffective assistance, as all the right words

were said, the inclusion of the neighbor is questionable. It does raise questions about

Counsel’s ability to participate in the selection of a fair and impartial jury pool for Mr.

Grant.”

       {¶ 31} There is no evidence trial counsel improperly or imprudently exercised his

allotted peremptory challenge on a different juror. Further, the record demonstrates

counsel properly attempted to establish a basis for removal of Juror X through additional

voir dire questioning. Finally, counsel requested removal for cause. Nothing asserted

by Grant or set forth in the record compels us to conclude that counsel was deficient in

this regard.

       {¶ 32} Grant also claims counsel improperly permitted the prosecutor to provide

testimony regarding the State’s exhibits. During trial, the State introduced 11 pictures of

Levon’s various injuries. As previously stated, the pictures were taken by Cook. The

pictures were initially introduced during Levon’s testimony during which the prosecutor

properly asked Levon to describe what was depicted in each picture. Thereafter, during

Cook’s testimony, the prosecutor showed Cook three of the photographs and repeated

Levon’s testimony regarding what was shown in the pictures. The prosecutor then asked

Cook if she agreed with the descriptions.

       {¶ 33} We note that the prosecutor identified what was depicted in each picture as

previously described by Levon.       For example, Levon described State’s Exhibit 2 as
                                                                                        -12-


showing a cut to his chin. The prosecutor later asked Cook whether the picture showed

a cut to Levon’s chin. It is entirely possible that defense counsel did not object to these

questions simply because the prosecutor merely repeated Levon’s descriptions of the

injuries depicted. Or counsel may have felt objecting would bring more attention to the

injuries. In any event, we cannot say that counsel’s conduct was deficient or that any

deficiency resulted in prejudice.

       {¶ 34} Grant’s last claim of ineffective assistance of counsel is based upon the

assertion that counsel failed to lodge proper objections to numerous questions posed by

the prosecutor.      First, Grant contends the prosecutor asked Levon two questions

regarding his medical care which called for answers containing hearsay evidence.

Specifically, the prosecutor asked Levon if he was advised he had “concussion like

symptoms,” and        what he was advised to do for “self-care.” Tr. p. 107. Defense

counsel did not object to either of these questions.

       {¶ 35} Levon indicated that he believed he lost consciousness while he was on the

ground. He further indicated he was unable to open his eyes while he was being treated

at the hospital because he was suffering a migraine headache.             He testified his

symptoms also included nausea. The prosecutor then asked him the above questions.

Levon responded that he was informed he had concussion-like symptoms and was told

to take ibuprofen.

       {¶ 36} We agree that the questions, as asked, sought answers based upon

hearsay evidence. Had the prosecutor asked Levon what he did for self-care once

discharged, Levon would have been permitted to answer.               Counsel may have

determined that objecting to these questions was not necessary or that doing so would
                                                                                         -13-


have brought more attention to the matter.2 Even assuming counsel was deficient for

failing to lodge objections, we cannot discern any prejudice. Levon’s answer did not

actually establish a diagnosis and his self-care orders were minimal.

      {¶ 37} Next, Grant contends the prosecutor asked leading questions to which

defense counsel failed to object. Specifically, Grant objects to the following exchanges

during re-direct examination between the prosecutor and Roach:

      Q: Now it wasn’t just, “I’ll kill you. It’s “next time, I’ll kill you,” correct?

      A: Yes. “Next time.”

      Q: - - there was an attempt this time.

      A: Next time.

      Q: Is that the way you read that?

      A: Um-hmm.

      ***

      Q: I understand you were upset and nervous and you’re probably upset

      and nervous today; is that fair to say?

      A: Yeah.

      Q: Okay. But that is what came out of the Defendant’s mouth. Is that

      what you’re testifying today?

Tr. p. 121-122.

      {¶ 38} A review of the entire record shows that during direct examination, Roach

testified she heard Grant threaten to kill Levon.        During cross-examination, defense



2
 We note counsel raised an objection to the very next question, wherein the prosecutor
sought to have Levon recount whether his doctors related his injuries to Grant’s actions.
                                                                                     -14-


counsel noted Roach had not included that information in her statement to the police and

that she had not filed an amended statement adding that information.        Immediately

thereafter on re-direct examination, the prosecutor asked Roach whether she had made

such a statement to the police. After Roach stated she believed she had made the

statement when speaking to the police, the prosecutor engaged in the above-cited

colloquy.

      {¶ 39} Even if the questions regarding the statement were leading, we fail to

discern how they resulted in prejudice. The prosecutor was merely following up on

statements already put into evidence by the witness. Likewise, while the prosecutor did

ask a leading question regarding whether Roach was nervous and upset, we cannot

discern any prejudice arising therefrom.

      {¶ 40} Finally, we note Grant’s that claim that counsel “struggled with objections

throughout the trial” is not borne out by the record. Grant admits, and the transcript

demonstrates, defense counsel made valid objections throughout the trial.

      {¶ 41} We conclude Grant has failed to demonstrate ineffective assistance of

counsel. Accordingly, the second assignment of error is overruled.



                  IV.    Sufficiency and Manifest Weight of the Evidence

      {¶ 42} The third and fourth assignments of error are as follows:

             THERE      WAS     INSUFFICIENT      EVIDENCE      TO       SUPPORT

      DEFENDANT’S CONVICTION FOR DOMESTIC VIOLENCE.

             THE CONVICTION FOR DOMESTIC VIOLENCE WAS AGAINST

      THE MANIFEST WEIGHT OF THE EVIDENCE.
                                                                                         -15-


       {¶ 43} Grant contends the State failed to present evidence sufficient to support the

conviction and that the conviction is against the manifest weight of the evidence. He

asserts the State failed to establish the elements of domestic violence. He further claims

there was a dispute in the testimony regarding whether he was physically involved in the

altercation. Finally, he contends the State failed to rebut the presumption he was acting

in self-defense or that he was “acting in accordance with the Castle Doctrine in ejecting

Levon Grant” from his home.

       {¶ 44} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), which states that:

       An appellate court's function when reviewing the sufficiency of the evidence

       to support a criminal conviction is to examine the evidence admitted at trial

       to determine whether such evidence, if believed, would convince the

       average mind of the defendant's guilt beyond a reasonable doubt. The

       relevant inquiry is whether, after viewing the evidence in a light most

       favorable to the prosecution, any rational trier of fact could have found the

       essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted). Id. at paragraph two of the syllabus.

       {¶ 45} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence
                                                                                         -16-


is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a

“ ‘court reviewing 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 jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20

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

       {¶ 46} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-

881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501,

¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight

of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)

State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

       {¶ 47} Finally, and importantly, “[b]ecause 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, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
                                                                                        -17-


       {¶ 48} Grant was convicted of domestic violence in violation of R.C. 2919.25(A),

which provides “[n]o person shall knowingly cause or attempt to cause physical harm to

a family or household member.” “Family or household member” is defined to include “a

child of the offender” “who is residing or has resided with the offender.”            R.C.

2919.25(F)(1)(a)(ii). “A person acts knowingly, regardless of purpose, when the person

is aware that the person's conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when the person is aware

that such circumstances probably exist.” R.C. 2901.22(B). “Physical harm” is defined

as “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3).

       {¶ 49} There is no dispute that Levon is Grant’s family member, and Levon’s

testimony, if believed, was sufficient to demonstrate the elements of domestic violence.

Specifically, Levon testified Grant hit him at least four times with a wooden cane. Levon

also testified Grant attempted to hit him with a hammer. The jury could have reasonably

inferred that Grant acted with knowledge that either of these actions could result in

physical harm. Further, the State presented competent evidence that Levon did suffer

physical harm. Thus, we conclude the State presented sufficient evidence to sustain the

conviction.

       {¶ 50} Grant next contends that the jury should not have credited the testimony of

Levon over the testimony of Shane, and that the existence of conflicting testimony

precluded the jury from finding him guilty beyond a reasonable doubt. Upon review,

however, we do not agree that the jury clearly lost its way in choosing to believe the

testimony of Levon and to disbelieve the testimony presented by Shane. A trier of fact
                                                                                         -18-


is free to believe all, some, or none of the testimony of each witness appearing before it.

State v. Wright, 8th Dist. Cuyahoga No. 80555, 2002-Ohio-4279, ¶ 25. Moreover, the

existence of conflicting testimony does not preclude the State from obtaining a conviction.

As noted in Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, one function of a jury is to

resolve such conflicts when they arise.      Thus, we conclude the conviction was not

against the manifest weight of the evidence.

       {¶ 51} Finally, for the reasons set forth above, the record does not contain

evidence upon which the jury could have found Grant acted in self-defense. Therefore,

the State had no presumption to rebut.

       {¶ 52} We cannot conclude the jury lost its way in resolving the testimonial conflicts

in favor of the State. We further conclude the testimony provided by Levon was sufficient

to support the conviction. Accordingly, we conclude the conviction was supported by

sufficient evidence and was not against the weight of the evidence.

       {¶ 53} The third and fourth assignments of error are overruled.



                                       V.      Conclusion

       {¶ 54} All of Grant’s assignments of error being overruled, the judgment of the trial

court is affirmed.

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



FROELICH, J. and HALL, J., concur.
                       -19-




Copies sent to:

Jesse J. Green
Jennifer E. Marietta
Hon. Julie L. Monnin
