[Cite as In re N.S.,
2016-Ohio-492.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102801
IN RE: N.S.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-14-115192
BEFORE: Kilbane, J., E.A. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEY FOR APPELLANT
Stephanie L. Lingle
1360 East 9th Street
Suite 910
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Hannah M. Smith
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Also listed:
Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Ave
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:
{¶1} Appellant, N.S. (“N.S.”), appeals from the judgment of the Cuyahoga
County Common Pleas Court, Juvenile Division, that adjudicated him delinquent in
connection with a charge of felonious assault. Having reviewed the record and the
controlling case law, we affirm.
{¶2} N.S. was charged with one count of felonious assault, in violation of R.C.
2903.11. The charge is in connection with an alleged attack on T.T. (“T.T.”), a fellow
student, who was an adult at the time of the incident. N.S. denied the charge, and the
matter proceeded to trial over several days from February 17, 2015 to March 5, 2015.
{¶3} T.T. testified that in late November 2014, he heard that N.S. had been
talking about him. T.T. and another friend decided to confront N.S. and one of N.S.’s
friends over the rumors. As a result of this confrontation, N.S. said that he wanted to
“work,” i.e., fight. The two teens then had a brief fight at a nearby gas station. T.T.
admitted that he had been suspended following this fight, and he then threatened to shoot
N.S. and “shoot up his house.” T.T. also admitted that he had previously been the victim
of a gunshot.
{¶4} T.T. further testified that, after the fight with N.S. at the gas station, he was
suspended a second time for an incident where he confronted N.S. outside of a classroom.
A week or two later, T.T. again heard through friends that N.S. wanted to fight him. At
that point, T.T. decided that he had been disrespected and that they had to fight for the
third time.
{¶5} The two continued their dispute through social media and text messages.
In a text message dated December 6, 2014, T.T. indicated that if N.S. stabs him, he would
shoot N.S., but T.T. insisted that he did not actually have a gun. In another exchange,
T.T. continued to threaten N.S. that he would “f … him up, and beat his ass.” T.T.
also taunted N.S. for not having a gun, and N.S. replied, “why waste bullets on [me].”
In response, T.T. texted, “you really about to get killed,” and “can’t nobody save you this
time.” To that, N.S. replied, “u wanna kill me that’s cool. I had a good life.” As the
exchanges continued, N.S. said, “lemme go about my life. N … ain’t trying to beef
with you sir.” T.T. continued that he would “drop” N.S. in 30 seconds, and called N.S.
weak. In response to this, N.S. said, “yeah I’m weak that’s why I don’t fight. I ain’t
trying to work [fight] and you are about to paralyze me but if you got to prove something
to yourself tough guy you do that.” T.T. concluded by threatening to beat N.S. “to
death.” Ultimately, N.S. indicated that he would fight T.T. at the same gas station where
they had previously fought.
{¶6} During the school day on December 8, 2014, one of the teachers became
aware of the ongoing dispute and had the two speak with the school security officer.
T.T. and N.S. were both searched for weapons and then dismissed from school. T.T.
called family members to pick him up but could not get a ride home. He testified that he
waited approximately 15 minutes after N.S. left the building, before deciding to walk to
the gas station where they had previously fought. The school surveillance video showed
that he left the building four minutes after N.S., however. T.T. testified that he asked
N.S. if he still wanted to fight, and N.S. said that he does not fight, but instead stabs
people, then ran at T.T., attacking him with a large knife. T.T. testified that N.S. slashed
him on his shoulder and arm and cut his leg. T.T. bit N.S. on the shoulder in order to get
away. T.T. denied instigating the fight, but he admitted that he grabbed N.S.’s cell
phone.
{¶7} Bedford police detective Buck Kidd (“Detective Kidd”) responded to the
scene. T.T. was still at the scene, but N.S. fled before the police arrived. T.T. was
transported to the hospital by ambulance. Detective Kidd and Bedford police officer
John Lobenthal (“Officer Lobenthal”) testified that they responded to N.S.’s house, and
N.S. immediately surrendered. According to Detective Kidd, N.S. admitted that he had
the knife in the morning before the assault, and hid it near the gas station along his route
home, in the event that he needed it during a fight with T.T. After the attack, N.S. hid it
in his backyard. N.S. produced the knife for the officers.
{¶8} At the close of the state’s case, N.S. moved for a judgment of acquittal.
The trial court denied the motion and N.S. presented testimony from Bedford police
officer Paul Kellerman (“Officer Kellerman”). Officer Kellerman testified that during
his investigation of the incident, he learned that T.T. pushed N.S. a number of times and
took N.S.’s phone before N.S. finally retaliated.
{¶9} D.P., another classmate of N.S., testified that after T.T. and N.S. were
suspended, T.T. followed N.S. and tried to catch up with him in order to fight with him.
T.T. eventually caught up with N.S., but N.S. said that he did not want to fight.
According to D.P., T.T. kept “messing with” N.S., pushed him, and took his cell phone.
They began to tussle as N.S. tried to get the phone back. N.S. then reached for the knife
that was on the ground. T.T. continued to come at N.S. and “mess with him.” In
response, N.S. told T.T. to chill out. T.T. bit N.S., and N.S. cut T.T. then fled. D.P.
admitted that T.T. did not have a weapon and did not threaten to shoot N.S. at the time of
this fight.
{¶10} N.S. testified that his problems with T.T. began at the start of the school
year when he developed a crush on B.J., who he later learned was T.T.’s girlfriend. N.S.
subsequently ended the friendship, but B.J. became angry that N.S. was not speaking with
her, so during class in November, she pushed him off a desk. At that point, N.S. called
her a “stupid bitch,” and T.T. confronted N.S. over this insult and repeatedly threatened
N.S. A few days later, T.T. was waiting for him outside of one of his classes. T.T.
threatened him and had to be restrained by a teacher. The two met with the principal to
mediate their dispute, then were both sent home for the day.
{¶11} Following that meeting with the principal, T.T. sent N.S. a series of
threatening messages. N.S. brought the matter to the attention of his mother, who said
that she would discuss the matter with the principal. His mother also had N.S. stay in
the house over the weekend in order to prevent him from being victimized. N.S.
testified that because he had seen T.T. with a gun during a football game, and had also
seen Instagram photos of him with a gun, he became very frightened.
{¶12} On the following Monday morning, N.S. went to the principal’s office to
report the social media threats he had received from T.T., but T.T. spotted N.S. coming
out of the office and became infuriated. During that day, T.T. attempted to come at him.
Later in the day, the two spoke with the security officer and were sent home. N.S. was
permitted to stop at the cafeteria first so that the two would not leave at the same time.
When N.S. signed out to leave, he notice that T.T., who had signed out earlier, was still in
the building. N.S. stopped briefly at the gas station then continued home on his usual
route, but he noticed that T.T., who does not live near him, was following him. As N.S.
continued home, he next observed T.T. coming at him. N.S. testified that he had hidden
his father’s knife along the route home, in case there was trouble, and hid it in his
sweatshirt. As he continued on, he observed T.T. and D.P. approaching. T.T. was
yelling and wanted to fight, and grabbed N.S. by the shoulder, flinging him around.
N.S.’s cell phone fell out of his pocket and T.T. grabbed it. N.S. got the phone back and
T.T. grabbed him in a bear hug and bit his shoulder. At that point, N.S. testified that he
grabbed his knife and stuck T.T. in the leg.
{¶13} On March 19, 2015, the trial court found N.S. delinquent as charged. The
court ordered him to serve 12 months of detention, which the court suspended, and to
complete 30 hours of community service and 3 months of low risk community control
sanctions. The court noted that N.S. is “not a bad kid,” and had tremendous family
support. The court explained that it understood that N.S. had been bullied, but it noted
that chaos would ensue if everyone responded to threats in the manner that N.S. had
responded.
{¶14} N.S. now appeals and assigns the following sole assignment of error for our
review:
Assignment of Error
The trial court’s failure to find that N.S. acted in self-defense was against
the manifest weight of the evidence.
{¶15} Within this assignment of error, N.S. argues that the manifest weight of the
evidence presented at trial demonstrates that he met his burden of showing that he acted
in self-defense, because he established by a preponderance of the evidence that he was
not at fault in creating the violent situation, he had a bona fide belief that he was in
imminent danger of death or bodily harm, and he did all that he could to retreat and avoid
the danger.
{¶16} In State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202,
865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St.3d 380, 1997- Ohio-52,
678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386,
678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387,
678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s?
… “When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate
court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
resolution of the conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing
Tibbs v. Florida (1982), 457 U.S. 31, 42,
102 S.Ct. 2211,
72 L.Ed.2d 652.
{¶17} In addition, an appellate court may not merely substitute its view for that of
the factfinder, but must find that “‘in resolving conflicts in the evidence, the factfinder
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin,
20
Ohio App.3d 172,
485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest
weight grounds is reserved for “‘the exceptional case in which the evidence weighs
heavily against the conviction.’”
Id., quoting Martin. In addition, this court must
remain mindful that the weight to be given the evidence and the credibility of the
witnesses are matters left primarily to the factfinder. State v. DeHass,
10 Ohio St.2d
230,
227 N.E.2d 212 (1967). Reversing an adjudication on the manifest weight of the
evidence requires the unanimous concurrence of all three appellate judges. Thompkins at
paragraph four of the syllabus.
{¶18} In this matter, N.S. was adjudicated delinquent in connection with a charge
of felonious assault. R.C. 2903.11 defines this offense as follows:
No person shall knowingly do either of the following:
(1) Cause serious physical harm to another …;
(2) Cause or attempt to cause physical harm to another … by means of
a deadly weapon or dangerous ordnance.
{¶19} R.C. 2901.05 governs affirmative defenses and places the burden of going
forward with the evidence and the burden of proof, by a preponderance of the evidence,
upon the accused. In order to establish a self-defense claim, the defendant must
demonstrate by a preponderance of the evidence that: (1) he was not at fault in creating
the situation giving rise to the affray; (2) he had a bona fide belief that he was in
imminent danger of great bodily harm and that his only means of escape from such
danger was in the use of such force; and (3) he must not have violated any duty to retreat
or avoid danger. State v. Williford, 49 Ohio St.3d 247, 249,
551 N.E.2d 1279 (1990); see
also State v. Robbins,
58 Ohio St.2d 74,
388 N.E.2d 755 (1979), paragraph two of the
syllabus. The elements of self-defense are cumulative and “‘[i]f 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.’” Williford, quoting State v. Jackson,
22 Ohio
St.3d 281, 284,
490 N.E.2d 893 (1986).
{¶20} The amount of force used in self-defense, however, must be reasonable.
State v. Fox, 36 Ohio App.3d 78, 79,
520 N.E.2d 1390 (9th Dist.1987). That is, “‘one
may use such force as the circumstances require in order to defend against danger that one
has good reason to apprehend.’”
Id., quoting State v. McLeod,
82 Ohio App. 155, 157,
80
N.E.2d 699 (9th Dist.1948); see also Akron v. Dokes,
31 Ohio App.3d 24, 25,
507 N.E.2d
1158 (9th Dist.1986). Where one uses a greater degree of force than is necessary under
all the circumstances, it is not justifiable on the grounds of self-defense. See State v.
Jackson, 10th Dist. Franklin No. 00AP-444,
2000 Ohio App. LEXIS 5808 (Dec. 14,
2000), citing McLeod. The issue of whether a defendant used unreasonable force in
repelling a perceived danger is a question of fact for the finder of fact. Jackson, citing
State v. Deans, 10th Dist. Franklin No. 98AP-1463,
1999 Ohio App. LEXIS 4602 (Sept.
30,1999).
{¶21} After a careful consideration of the record in its entirety, we find that the
manifest weight of the evidence clearly demonstrates that N.S. was not primarily at fault
in creating the situation giving rise to the affray. With regard to whether N.S.
demonstrated by a preponderance of the evidence that he had a bona fide belief that he
was in imminent danger of great bodily harm and that his only means of escape from such
danger was the use of force, the trial court was free to believe or disbelieve all or any of
the testimony presented on these remaining issues. State v. Montanez, 8th Dist.
Cuyahoga No. 100013, 2014-Ohio-1723, ¶ 46, citing State v. Matthews, 10th Dist.
Franklin No. 11AP-532,
2012-Ohio-1154, and State v. Jackson, 10th Dist. Franklin
No. 01AP-973,
2002-Ohio-1257. Under the totality of the circumstances presented
herein, we are unable to conclude that the trial court lost its way in concluding that N.S.
failed to establish the remaining elements of self-defense by the requisite degree of
evidence.
{¶22} With regard to whether N.S. had a bona fide belief that he was in imminent
danger of great bodily harm from T.T., the record demonstrates that T.T. repeatedly
threatened N.S., while N.S. repeatedly attempted to defuse the situation. As noted by the
trial court, T.T. was not simply an innocent bystander. Nonetheless, the record does
contain evidence that N.S. ultimately agreed to fight T.T. at the gas station near school.
When the actual confrontation resulted, T.T. was not armed. He grabbed and bit N.S.,
but the confrontation did not present the threat of great bodily harm. Moreover, by
attacking T.T. with a knife, N.S. used a far greater degree of force than was necessary
under the circumstances. In addition, N.S. had other means of escape besides the use of
a deadly weapon, and had the ability to flee the scene at that point. Based on the
foregoing, the manifest weight of the evidence demonstrates that N.S. exceeded the scope
of any self-defense privilege he may have had in this matter, and also failed to retreat
from the situation.
{¶23} Because the trial court was in the best position to determine the credibility
of each witness by taking into account inconsistencies, as well as the manner and
demeanor of the witnesses, we cannot conclude that this record presents a scenario where
the trier of fact clearly lost its way in rejecting N.S.’s claim of self-defense.
{¶24} The assignment of error is overruled.
{¶25} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, juvenile division, to carry this judgment into execution. The adjudication of
delinquency having been affirmed, any bail or stay of execution pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
