Dublin v. Starr , 2022 Ohio 2298 ( 2022 )

[Cite as Dublin v. Starr, 2022-Ohio-2298.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Dublin, :
Plaintiff-Appellee, : No. 21AP-173
(M.C. No. 2020 CRB 011701)
v. :
(ACCELERATED CALENDAR)
Rick Starr, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 30, 2022
On brief: Frost Brown Todd LLC, Stephen J. Smith,
Martin C. Nobile, and MacKenzie B. Newberry, for appellee.
Argued: Stephen J. Smith, Jr.
On brief: Campbell Law, LLC, and April F. Campbell, for
appellant. Argued: April F. Campbell.
APPEAL from the Franklin County Municipal Court
JAMISON, J.
{¶ 1} Defendant-appellant, Rick Starr, appeals from a judgment of the Franklin
County Municipal Court, convicting appellant of assault in violation of R.C. 2903.13. For
the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 12, 2020, appellant was living in Dublin, Ohio with his 16-year-
old daughter M.S. and a man named Mike Wood, who rented a room from appellant. On
the night in question, M.S. and her boyfriend, 18-year-old G.A., were watching a movie in
the downstairs theater room at appellant's residence. Appellant, a real estate agent, was
working upstairs.
No. 21AP-173 2
{¶ 3} Appellant admitted that he sometimes let G.A. spend the night with his
daughter in the theater room, but he testified that he believed G.A. would be leaving around
midnight on August 12, 2020. M.S. and G.A. testified that at approximately 11:00 p.m.,
they could hear appellant yelling at someone over the telephone. According to M.S. and
G.A., appellant subsequently came downstairs at 11:20 p.m. or 11:30 p.m., and yelled for
M.S. to exit the theater room. When M.S. answered the door, an argument ensued between
appellant and M.S. concerning the amount of fish food she had put in the fish tank. When
the argument became heated, appellant told G.A. to leave.
{¶ 4} M.S. recalled the events that followed during her trial testimony. M.S.
testified that as she was arguing with her father, and gathering her things to go to her
upstairs bedroom, appellant grabbed her by the hair and threw her to the ground. M.S.
denied punching or striking appellant at any time. M.S. testified that appellant had a "death
grip on [her] hair" and that he was pushing her head against the floor. M.S. yelled for help
from G.A. when she was unable to free herself. (Tr. Vol. I at 34.) According to M.S., G.A.
began struggling with appellant to get him to release her. M.S. testified appellant struck
G.A. in the face multiple times during the struggle.
{¶ 5} M.S. testified that when appellant released her, he rushed toward G.A. G.A.
was eventually able to get behind appellant, grab him around the neck, and subdue him.
When G.A. fell backward while holding appellant by the neck, appellant struck his head
against the wall. Both M.S. and G.A. called police.
{¶ 6} Appellant's version of the events differs from M.S.'s and G.A.'s. He testified
that when he saw the amount of fish food in the fish tank, he became concerned that M.S.
was under the influence of drugs or alcohol. According to appellant, he called for M.S.
several times before she answered the door. Appellant testified that M.S. then took a couple
of steps toward him as he stood in the doorway to the theater room, and punched him in
the face. Appellant then grabbed M.S. by her hair in an effort to hold her at arms-length as
she continued to throw punches at him. Appellant testified that G.A. then grabbed him
around the neck from behind and began choking him. Appellant admitted he tried to strike
G.A. with his elbow, but only to get G.A. to release his choke hold. Appellant testified that
G.A. choked him into unconsciousness and that he hit his head on the wall as he fell.
No. 21AP-173 3
{¶ 7} Plaintiff-appellee, City of Dublin, subsequently charged appellant with
domestic violence, a misdemeanor of the first degree, and assault, also a misdemeanor in
the first degree. Both charges in case No. 2020 CRB 011701, arose out of the incident with
M.S. A separate case was later filed against appellant by the City of Hilliard for violating a
civil protection order ("CPO") as to G.A.
{¶ 8} The trial court subsequently granted a motion filed by the City of Hilliard to
join the two cases for trial. The motion was unopposed.1 The case was tried to the court on
February 17 and 18, 2021. At the close of appellee's case-in-chief, appellant orally moved
the court for acquittal pursuant to Crim.R. 29. The trial court took the motion under
advisement, without argument, but never expressly ruled on the motion. Appellant
renewed his motion for acquittal at the close of the evidence, but the trial court denied the
motion.
{¶ 9} The trial court heard testimony from M.S., G.A., four City of Dublin police
officers, two City of Hilliard police officers, G.A.'s father, Adam Anthony, Wood, and
appellant. At the close of all evidence the trial court made the following ruling:
This is the story of a family that's screwed up. Okay. No excuse
for a 16-year-old and an 18-year-old to be spending the nights
together. I don't care what you say. I don't care what the
excuse is. I mean, I heard [M.S.] say that she never used
profanity against her father, but when she talked and testified
and all the other things, I haven't heard sailors speak like that.
Okay? It's just not right.
However, I have to go on the basis of beyond a reasonable
doubt. I don't believe that [M.S.] struck Rick Starr. I don't
believe that the testimony was sufficient to prove that. The
Court is going to make the following findings. You may not
like it. You may. I don't care. But this is the way I feel about it.
I'm going to find him not guilty of the assault on [G.A.].
Because even though [G.A.] said he came to the aid of his
girlfriend, he had no right to do that. He grabbed him and
that's how [G.A.] got hurt. Okay. So I'm going to find him not
guilty on that.
1 Appellant claims that the trial court never formally ruled on the motion, but does not deny the two cases were
tried jointly.
No. 21AP-173 4
I'm going to find him guilty of the offense of assault on [M.S.],
and I'm going to find him not guilty of the domestic violence.
I want him on for the assault. I think that was totally your
fault. You should - - you know, you're an adult, and I hope
you've learned from this experience what's right and wrong.
And what I'm going to do is find you guilty of the assault, and
I'm going to order a presentence investigation by probation,
because I don't know anything about this gentleman.
And if he's a candidate for probation, then he gets probation.
If they say he doesn't need it, then he doesn't need it. But you
will have this. And I feel sorry for that young girl at 16. Okay.
That's all.
(Tr. Vol. II at 399-400.)
{¶ 10} On February 19, 2021, the trial court issued a judgment entry convicting
appellant of assault, in violation of R.C. 2903.13, a misdemeanor of the first degree. The
trial court ordered a pre-sentence investigation and scheduled a sentencing hearing for
March 31, 2021.
{¶ 11} On March 31, 2021, the trial court issued a sentencing entry imposing a $500
fine and a jail term of 180 days, less one day of jail-time credit. The trial court suspended
149 days of the jail sentence, but ordered appellant to serve 30 days, "3 days each month
for 10 months * * * probation to set dates." (Mar. 31, 2021 Sentencing Entry.) The trial
court also placed appellant on community control for a period of two years.2
{¶ 12} Appellant timely appealed to this court from the judgment of the Franklin
County Municipal Court. By journal entry filed June 2, 2021, this court granted appellant's
motion to stay the jail sentence imposed by the trial court pending appeal.
II. ASSIGNMENTS OF ERROR
{¶ 13} Appellant assigns the following as trial court error:
[1.] Starr's constitutional and Crim.R. 43 right to be present at
the critical stage of his arraignment and temporary protection
order hearing was denied, and because it prejudiced him, this
Court should reverse his conviction.
2 We note that the March 31, 2021 sentencing entry mistakenly indicates appellant pleaded guilty to assault,
in violation of R.C. 2903.13, even though the trial court found appellant guilty of assault following a bench
trial. Because we recognize this mistake as plain error, we shall remand this case to the trial court to issue a
corrected sentencing entry, nunc pro tunc.
No. 21AP-173 5
[2.] Starr's conviction should be reversed because unrelated
charges, that would not have been able to be introduced in
separate trials, were joined for the trial in Starr's case.
[3.] Because Defense Counsel did not move to have Starr's
cases severed, Counsel was prejudicially ineffective at Starr's
trial.
[4.] The trial court failed to rule on Starr's Crim.R. 29 motion
at the close of the State's case, prejudicing Starr.
[5.] This Court should overturn its decision to find that self-
defense does not fall under the sufficiency of the evidence
standard.
[6.] The State's evidence was insufficient to disprove self-
defense, thus Starr's conviction for assault was legally
insufficient.
[7.] The evidence weighed manifestly against convicting Starr
of assault.
[8.] The trial court used the wrong legal standards in reviewing
and weighing the evidence: it used the wrong standard for both
Starr's reasonable parental discipline defense, and for the
State's burden to disprove self-defense. Thus, Starr's assault
conviction should be reversed.
[9.] Starr was denied his right to a fair trial in this case because
of cumulative error.
III. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 14} In appellant's first assignment of error, appellant argues that the trial court
violated Crim.R. 43 when it arraigned him on the charges related to M.S. and heard
testimony regarding the temporary CPO without his presence in the courtroom. We
disagree.
{¶ 15} Crim.R. 43(A) instructs the trial court when defendant's physical presence at
a criminal proceeding is required:
(1) Except as provided in Rule 10 of these rules and division
(A)(2) of this rule, the defendant must be physically present
at every stage of the criminal proceeding and trial, including
the impaneling of the jury, the return of the verdict, and the
No. 21AP-173 6
imposition of sentence, except as otherwise provided by these
rules.
{¶ 16} Crim.R. 43(A) requires that a criminal defendant be present at the
arraignment and at every stage of the trial. However, a defendant's right to be present at
trial is not absolute. State v. White, 82 Ohio St.3d 16, 26 (1998). For example, Crim.R.
43(A) provides that if a trial is commenced in the presence of the defendant, who thereafter
voluntarily absents himself, the trial may continue in defendant's absence. State v. Dennis,
10th Dist. No. 04AP-595, 2005-Ohio-1530, ¶ 10, citing State v. Harrison, 88 Ohio App.3d
287, 290 (1st Dist.1993). Therefore, the right to be present at trial may be waived by the
defendant's own acts. State v. Meade, 80 Ohio St.3d 419, 421 (1997).
{¶ 17} Crim.R. 43(A)(2) provides:
Notwithstanding the provisions of division (A)(1) of this rule,
in misdemeanor cases or in felony cases where a waiver has
been obtained in accordance with division (A)(3) of this rule,
the court may permit the presence and participation of a
defendant by remote contemporaneous video for any
proceeding if all of the following apply:
(a) The court gives appropriate notice to all the parties;
(b) The video arrangements allow the defendant to hear and
see the proceeding;
(c) The video arrangements allow the defendant to speak, and
to be seen and heard by the court and all parties;
(d) The court makes provision to allow for private
communication between the defendant and counsel. The
court shall inform the defendant on the record how to, at any
time, communicate privately with counsel. Counsel shall be
afforded the opportunity to speak to defendant privately and
in person. Counsel shall be permitted to appear with
defendant at the remote location if requested.
(e) The proceeding may involve sworn testimony that is
subject to cross examination, if counsel is present,
participates and consents.3
3Crim.R. 43(A)(2) was amended effective July 1, 2022. The new version of Crim.R. 43(A)(2) eliminates the
distinction between misdemeanor and felony prosecutions.
No. 21AP-173 7
{¶ 18} Appellant admits that he was present at his August 15, 2020 arraignment via
video teleconference and that he was represented by counsel. Appellant nevertheless
contends that his constitutional right to be present was violated because the trial court
heard witness testimony without asking for counsel's consent, and without asking appellant
to waive his presence either orally or in writing.
{¶ 19} To any extent that counsel's consent was required in order for the trial court
to hear witness testimony, we note that appellant was given prior notice that the
proceedings would be conducted by video teleconference, but no oral or written objection
was interposed by appellant or his counsel. Thus, counsel's consent is demonstrated on the
record. See Crim.R. 43(A)(3). Furthermore, our review of the transcript reveals no impact
on the fairness of the proceeding arising out of appellant's absence from the courtroom.
See State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 16 (a reviewing court
presumes that any constitutional errors are subject to a harmless error analysis if the
defendant was represented by counsel and tried by an impartial adjudicator).
{¶ 20} For the foregoing reasons, appellant's first assignment of error is overruled.
B. Second Assignment of Error
{¶ 21} In appellant's second assignment of error, appellant argues that the trial
court committed prejudicial error when it joined the three charges against him for a single
trial. We disagree.
{¶ 22} Joinder is governed generally by Crim.R. 8(A), which provides in relevant
part as follows:
Two or more offenses may be charged in the same * * *
complaint in a separate count for each offense if the offenses
charged, whether felonies or misdemeanors or both, are of the
same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme
or plan, or are part of a course of criminal conduct.
{¶ 23} Crim.R. 13 further provides that "[t]he court may order two or more
indictments * * * to be tried together, if the offenses or the defendants could have been
joined in a single indictment or information. The procedure shall be the same as if the
prosecution were under such single indictment." Accordingly, Crim.R. 8 and Crim.R. 13
permit joinder of misdemeanor offenses of the same or similar character. This court has
No. 21AP-173 8
explained that "[j]oinder is liberally permitted to conserve judicial resources, reduce the
chance of * * * incongruous results and excessive trials, and diminish inconvenience to
witnesses." State v. Armengau, 10th Dist. No. 14AP-679, 2017-Ohio-4452, ¶ 99,
discretionary appeal denied, 151 Ohio St.3d 1511, 2018-Ohio-365, citing State v. Schaim,
65 Ohio St.3d 51 (1992), citing State v. Torres, 66 Ohio St.2d 340, 343 (1981).
{¶ 24} Appellant argues that because the charges involving M.S. and the charges
involving G.A. were prosecuted by two different municipalities and by two different
prosecutors, the joinder of the offenses likely resulted in confusion for the trier of fact.
Appellee argues that any trial court error with regard to joinder was harmless to appellant
given his acquittal of the charges related to G.A. Although that logic will not always apply,
under the particular circumstances of this case, we agree with appellee.
{¶ 25} Under Crim.R. 14, "[i]f it appears that a defendant * * * is prejudiced by a
joinder of offenses * * * in [a] * * * complaint * * * the court shall order an election or
separate trial of counts * * * or provide such other relief as justice requires." In our view,
the presentation of evidence by two separate prosecuting attorneys only served to aid the
trier of fact in segregating the evidence relevant to the separate charges involving M.S. and
G.A., rather than creating confusion. Moreover, this case was tried to the court without a
jury. Consequently, the task of separating the evidence relevant to each charge would not
have proved difficult for the trier of fact in this case.
{¶ 26} Appellant's claim of prejudice is further undermined by the fact that he was
convicted of only one of the three charges. Appellant was acquitted of the domestic violence
charge involving M.S. and the single charge related to G.A., which demonstrates the trier of
fact was able to separate the evidence relevant to each of the offenses. See State v. Tucker,
10th Dist. No. 15AP-1123, 2017-Ohio-7735, ¶ 54 ("[W]e agree with the state's contention
that appellant has also failed to demonstrate prejudice, as he was acquitted of the charge in
the burglary case (case No. 15CR-424), indicating the jury was able to 'separate the
evidence' as to the offenses."). See also State v. Wampler, 5th Dist. No. 13-CA-3, 2014-
Ohio-37, ¶ 74 (appellant failed to demonstrate prejudice from joinder of counts where jury
acquitted him of all counts related to alleged incident of arson on date separate from the
date of the incident for which he was convicted); State v. Bonneau, 8th Dist. No. 97565,
2012-Ohio-3258, ¶ 22 (not guilty verdict as to the counts relating to one victim and guilty
No. 21AP-173 9
verdicts as to the counts relating to another demonstrated that the jury was able to separate
the evidence and considered each victim separately).
{¶ 27} Accordingly, even if there was a danger of prejudice arising from joinder of
the offenses in this case, the record also shows that the trier of fact had little difficultly
segregating the evidence relevant to each charge, as evidenced by appellant's acquittal on
two of the three charges.
{¶ 28} For the foregoing reasons, appellant's second assignment of error is
overruled.
C. Third Assignment of Error
{¶ 29} In appellant's third assignment of error, appellant contends that his trial
counsel provided ineffective assistance by failing to move for severance of the two cases for
trial. We disagree.
{¶ 30} "[W]e apply a two-part standard to claims of ineffective assistance,
examining (1) whether counsel's performance was deficient, and (2) whether that deficient
performance resulted in prejudice to the defendant." State v. Neil, 10th Dist. No. 14AP-
981, 2016-Ohio-4762, ¶ 89, citing Strickland v. Washington, 466 U.S. 668, 687 (1984) and
State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989). "A party seeking to show prejudice as
a result of counsel's alleged deficient performance at trial must establish that there is a
reasonable probability that, but for the unprofessional errors of counsel, the outcome of the
trial would have been different." Neil at ¶ 89. "A reasonable probability is one sufficient to
undermine confidence in the outcome." State v. Phillips, 10th Dist. No. 14AP-79, 2014-
Ohio-5162, ¶ 81, citing Strickland at 694.
{¶ 31} Crim.R. 14, which governs severance in a criminal matter, states: "If it
appears that a defendant or the state is prejudiced by a joinder of offenses * * * in an
indictment, * * * or by such joinder for trial together of indictments, * * * the court shall
order an election or separate trial of counts, grant a severance of defendants, or provide
such other relief as justice requires." Appellant did not file a motion for relief from the
joinder of the two complaints in this case.
{¶ 32} Having determined that the trial court did not err when it joined the three
offenses for trial, and having concluded that appellant failed to demonstrate unfair
prejudice arising from joinder, appellant could not have been prejudiced by any alleged
No. 21AP-173 10
deficiency in trial counsel's performance with regard to joinder. Accordingly, appellant's
third assignment of error is overruled.
D. Appellant's Seventh Assignment of Error
{¶ 33} For ease of discussion, we shall address appellant's remaining assignments
of error out of order. In appellant's seventh assignment of error, appellant argues that his
conviction of assault is against the manifest weight of the evidence. More particularly,
appellant argues that the trial court erred in convicting him of assault in light of the
evidence produced at trial in support of appellant's claim of self-defense and the affirmative
defense of reasonable parental discipline. We disagree.
{¶ 34} "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." State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).
Consequently, "a prerequisite for any reversal on manifest-weight grounds is conflicting
evidence." State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 20. An appellate court
"may not merely substitute its view for that of the trier of fact, but must review 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. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a conviction as
being against the manifest weight of the evidence only in the most " 'exceptional case in
which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
1. Self-defense
{¶ 35} "Ohio defines assault as 'knowingly caus[ing] or attempt[ing] to cause
physical harm to another.' " State v. Faggs, 159 Ohio St.3d 420, 2020-Ohio-523, ¶ 17,
quoting R.C. 2903.13(A). There is no dispute that appellant knowingly caused physical
harm to his daughter, M.S., on August 12, 2020. Appellant claims, however, that he did so
in self-defense.
No. 21AP-173 11
{¶ 36} The elements of self-defense with regard to the use of non-deadly force are
(1) defendant was not at fault in creating the situation that gave rise to the affray,
(2) defendant had both reasonable grounds to believe and an honest belief, even if
mistaken, that he was in imminent danger of bodily harm, and (3) the only means of
protection from that danger was the use of force not likely to cause death or great bodily
harm. See In re T.S., 5th Dist. No. 21 CAF 08 0039, 2022-Ohio-975, ¶ 37 and State v.
McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, ¶ 26.
{¶ 37} R.C. 2901.05(B) sets forth the burden of proof with respect to self-defense as
follows:
(1) A person is allowed to act in self-defense * * *. If, at the
trial of a person who is accused of an offense that involved the
person's use of force against another, there is evidence
presented that tends to support that the accused person used
the force in self-defense, * * * the prosecution must prove
beyond a reasonable doubt that the accused person did not
use the force in self-defense, defense of another, or defense of
that person's residence, as the case may be.
{¶ 38} Under the statutory scheme, the burden of proof of self-defense has shifted
to the prosecution, but the elements of a claim of self-defense are the same. See State v.
Italiano, 7th Dist. No. 19 MA 0095, 2021-Ohio-1283, ¶ 18, appeal not accepted, 163 Ohio
St.3d 1496, 2021-Ohio-2270, citing State v. Jackson, 8th Dist. No. 108493, 2020-Ohio-
1606, ¶ 17 ("Although the burden has shifted to the state, the elements remain
cumulative."). Under R.C. 2901.05(B), if evidence is presented at trial that tends to support
that a defendant used non-deadly force in self-defense, the state must prove beyond a
reasonable doubt that the defendant did not use that force in self-defense. State v. Carney,
10th Dist. No. 19AP-402, 2020-Ohio-2691, ¶ 31; State v. Jacinto, 8th Dist. No. 108944,
2020-Ohio-3722, ¶ 46. However, because of the cumulative nature of the elements of self-
defense, the state need only disprove one of the elements of self-defense beyond a
reasonable doubt at trial. Id.{¶ 39} As set forth above, the testimony of appellee's primary witnesses, M.S. and
G.A., established the following facts. Appellant was overheard as he was engaging in a
heated argument with someone over the telephone before he came downstairs and became
angry at M.S. when he saw the amount of fish food in the fish tank. Appellant became
No. 21AP-173 12
angrier when M.S. did not come to the door immediately and when he saw the mess in the
theater room and bathroom. When M.S. proceeded to argue with appellant about G.A., and
may have called him names, appellant grabbed her by the hair, threw her to the ground,
and held her face to the floor. Conversely, appellant testified M.S. punched him in the face,
and he was simply holding her by the hair at arms-length to protect himself from further
blows to his face.
{¶ 40} Appellant argues that his conviction of assault is against the manifest weight
of the evidence because his testimony regarding the events of August 12, 2020 was more
believable than the testimony of M.S. and G.A. However, "[d]eterminations of credibility
and weight of the testimony are primarily for the trier of fact." State v. Ward, 10th Dist.
No. 19AP-266, 2020-Ohio-465, ¶ 26, citing State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. "The jury, or the court in a bench trial, may take note of
inconsistencies at trial and resolve them accordingly, 'believ[ing] all, part, or none of a
witness's testimony.' " Ward at ¶ 26, quoting State v. Raver, 10th Dist. No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964). Consequently, "a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant's version." State v. Messenger,
10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶ 49, citing State v. Lindsey, 10th Dist. No.
14AP-751, 2015-Ohio-2169, ¶ 43 (finding no merit in defendant's claim that his conviction
was against the manifest weight of the evidence because the jury did not believe his claim
of self-defense). Here, the trial court made clear that M.S.'s and G.A.'s testimony was more
credible than appellant's with respect to the critical facts in the case. Specifically, the trial
court disbelieved appellant's claim that M.S. punched him in the face before he grabbed her
by the hair and threw her to the ground. The trial court also disbelieved appellant's claim
that he grabbed her by the hair only to prevent her from continuing to punch him.
{¶ 41} The factual foundation of appellant's self-defense claim is appellant's
testimony he was not at fault for creating the situation that led to the affray and M.S.
initiated the physical confrontation. Based upon the trial court's credibility determination
and factual findings, it is clear that the trial court did not believe appellant's testimony that
M.S. initiated the physical confrontation. If believed, M.S.'s testimony, as corroborated by
G.A., supports the trial court's findings in this regard, beyond a reasonable doubt. Because
No. 21AP-173 13
the weight of the evidence supports a finding that appellant was at fault in creating the
situation giving rise to the physical confrontation in this case, appellant's conviction of
assault was not against the manifest weight of the evidence. Moreover, given the trial
court's finding that M.S. did not strike appellant, even if appellant was not at fault in
creating the situation that gave rise to the altercation, the weight of the evidence disproved
appellant's claim that he honestly believed he was in imminent danger of bodily harm prior
to the time he grabbed M.S. by the hair and threw her to the ground. On this record, we
cannot say that the trial court, as the trier of fact, lost its way in resolving the conflicts in
the testimony and convicting appellant of assault.
2. Reasonable Parental Discipline
{¶ 42} "The domestic violence statute does not prohibit a parent from properly
disciplining his or her child." State v. Phillips, 10th Dist. No. 12AP-57, 2012-Ohio-6023,
¶ 18, citing State v. Suchomski, 58 Ohio St.3d 74, 75 (1991). Accordingly, "[a] parent may
use physical punishment as a method of discipline without violating the domestic violence
statute as long as the discipline is proper and reasonable under the circumstances."
Phillips, 2012-Ohio-6023, at ¶ 18, citing State v. Thompson, 2d Dist. No. 04CA30, 2006-
Ohio-582, ¶ 29, citing State v. Adaranijo, 153 Ohio App.3d 266, 2003-Ohio-3822, ¶ 12 (1st
Dist.). Thus, "reasonable parental discipline is an affirmative defense to a charge of
domestic violence under R.C. 2919.25(A) or assault under R.C. 2903.13(A), with the burden
of proof resting with the accused pursuant to R.C. 2901.05(A)." Faggs at ¶ 29.
{¶ 43} "Whether any particular conduct constitutes proper and reasonable parental
discipline is a question that must be determined from the totality of all of the relevant facts
and circumstances." Phillips, 2012-Ohio-6023, at ¶ 18, citing Thompson at ¶ 31. In
analyzing the totality of the circumstances, a court should consider (1) the child's age;
(2) the child's behavior leading up to the discipline; (3) the child's response to prior non-
corporal punishment; (4) the location and severity of the punishment; and (5) the parent's
state of mind while administering the punishment. State v. Hart, 110 Ohio App.3d 250,
256 (3d Dist.1996). The accused has the burden of establishing parental discipline as an
affirmative defense. State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535, ¶ 27.
{¶ 44} There was competent credible evidence in the record to support a finding that
M.S. was a 16-year-old girl at the time of the incident, and that her behavior leading up to
No. 21AP-173 14
the incident consisted of overfeeding fish, keeping a messy room, arguing with appellant
for G.A. to stay overnight, and calling appellant names. The evidence also shows that
appellant became angry when he came down the stairs to confront M.S. and saw the food
in the fish tank and the messy room.
{¶ 45} The trial court's findings relative to the assault charge were as follows:
I heard [M.S.] say that she never used profanity against her
father, but when she talked and testified and all the other
things, I haven't heard sailors speak like that. Okay? It's just
not right.
However, I have to go on the basis of beyond a reasonable
doubt. I don't believe that [M.S.] struck Rick Starr. I don't
believe that the testimony was sufficient to prove that. * * *
***
I'm going to find him guilty of the offense of assault on [M.S.],
and I'm to find him not guilty of domestic violence. I want him
on for the assault. I think that was totally your fault. You
should - - you know, you're an adult, and I hope you've learned
from this experience what's right and wrong. And what I'm
going to do is find you guilty of the assault. * * *
* * * And I feel sorry for that young girl at 16.
(Emphasis added.) (Tr. Vol. II at 399-400.)
{¶ 46} The trial court decision sets forth the events immediately preceding
appellant's use of force against M.S. The trial court disbelieved appellant's claim that M.S.
struck him, and specifically found that the incident was "totally [appellant's] fault." (Tr.
Vol. II at 400.) The trial court also noted: "I feel sorry for that young girl at 16." (Tr. Vol.
II at 400.) Thus, the trial court's findings reveal that the trial court considered M.S.'s age,
her behavior leading up to the discipline, her response to appellant's attempts at non-
corporal punishment, the location and severity of the punishment, and appellant's state of
mind while administering the punishment. The transcript contains evidence to support the
trial court's findings as to each of the relevant factors. See M.H., 10th Dist. No. 19AP-205,
2020-Ohio-4477 (convictions were not against the manifest weight of the evidence where
evidence was produced to support a finding as to each of the relevant Hart factors); Phillips,
2012-Ohio-6023, at ¶ 19 (Convictions for domestic violence were not against manifest
No. 21AP-173 15
weight of the evidence in light of appellant's claim of reasonable parental discipline where
appellant admitted he slapped his two children as discipline because they would not open
the door to let him in.). Accordingly, our review of the trial court's decision and the evidence
in the record shows the trial court considered the relevant Hart factors in concluding
appellant's use of force against M.S. on August 12, 2020 was not reasonable under the
circumstances.
{¶ 47} Appellant had the burden of proof on this affirmative defense. As previously
stated, "[d]eterminations of credibility and weight of the testimony are primarily for the
trier of fact." Ward at ¶ 26, citing DeHass at paragraph one of the syllabus. Consequently,
"a conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant's version." Messenger at ¶ 49,
citing Lindsey at ¶ 43. On this record, we cannot say that the trial court lost its way in
resolving the conflicting testimony and concluding that appellant failed to establish the
affirmative defense of reasonable parental discipline and he was guilty of assault.
{¶ 48} Appellant's seventh assignment of error is overruled.
E. Appellant's Eighth Assignment of Error
{¶ 49} In appellant's eighth assignment of error, appellant argues that the trial court
applied the incorrect legal standard in weighing the evidence in support of appellant's
claims of self-defense and reasonable parental discipline.
{¶ 50} A claim that the trial court failed to apply the correct legal standard in
reviewing and weighing evidence is both legally and analytically distinct from a challenge
to the manifest weight of the evidence. M.H. at ¶ 24. "When considering a challenge to the
manifest 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 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." Id., citing Thompkins at 387. "In contrast, a determination as to
whether the trial court applied the correct legal standard in reviewing and weighing the
evidence presents a question of law requiring de novo review." M.H. at ¶ 24, citing State v.
Luke, 3d Dist. No. 14-10-26, 2011-Ohio-4330, ¶ 19, citing State v. Moore, 161 Ohio App.3d
778, 2005-Ohio-3311, ¶ 36 (7th Dist.).
No. 21AP-173 16
{¶ 51} Appellant argues that the trial court applied an incorrect legal standard in
review of his self-defense claim because the trial court failed to place the burden on appellee
to disprove at least one of the elements of his self-defense claim beyond a reasonable doubt,
but placed the burden on appellee to prove self-defense. In our view, appellant misreads
the trial court's decision with regard to the burden of proof.
{¶ 52} The trial court, in announcing its ruling on the record, made the statement
that "I have to go on the basis of beyond a reasonable doubt. I don't believe that M.S. struck
Rick Starr." (Tr. Vol. II at 399.) Thus, the trial court found that appellee proved, beyond a
reasonable doubt, that M.S. did not strike appellant. The trial court's finding that M.S. did
not strike appellant supports the conclusion that appellant was either the aggressor or he
was not in fear of bodily harm when he grabbed M.S. by the hair, threw her to the ground,
and held her face to the floor. We disagree with appellant's claim that the trial court's use
of the phrase "I don't believe that the testimony was sufficient the prove [M.S. struck
appellant]," suggests the trial court placed the burden on appellant to prove that he was not
the aggressor. (Tr. Vol. II at 399.) When read in context of the trial court's entire decision,
we find that the trial court was simply stating there was no credible evidence M.S. was the
aggressor. The record supports that finding.
{¶ 53} Moreover, the trial court specifically found that the incident was "totally
[appellant's] fault." (Tr. Vol. II at 400.) Thus, there is no question that the trial court found
appellee proved, beyond a reasonable doubt, appellant was at fault in creating the situation
giving rise to the affray. As previously noted, a claim of self-defense is defeated if the state
disproves just one of the essential elements of the defense. Carney at ¶ 31; Jacinto at ¶ 46.
{¶ 54} Accordingly, we hold that the trial court complied with the correct legal
standard in the review of appellant's self-defense claim.
1. Reasonable Parental Discipline
{¶ 55} Appellant argues that the trial court applied the incorrect legal standard to
his affirmative defense of reasonable parental discipline, and essentially failed to consider
the defense, because the trial court's decision did not contain specific factual findings as to
each of the Hart factors and did not specifically mention reasonable parental discipline.
However, as previously set forth in our discussion of appellant's seventh assignment of
error, the findings made by the trial court and the evidence in the record shows the trial
No. 21AP-173 17
court considered the relevant Hart factors in concluding appellant's use of force against
M.S. on August 12, 2020 was not reasonable under the circumstances. Thus, the record
does not support appellant's contention that the trial court applied an incorrect legal
standard in reviewing his affirmative defense of reasonable parental discipline.
{¶ 56} Appellant relies on State v. Mills, 1st Dist. No. C-960482, 1997 Ohio App.
LEXIS 1161 (Mar. 26, 1997) in support of his assignment of error. In Mills, the First District
Court of Appeals held that the trial court, following a bench trial, committed reversible error
when it failed to expressly consider the defense of reasonable parental discipline before
convicting defendant of domestic violence. Mills is distinguishable in that the trial court
decision in Mills stated that "the only issue to be determined was whether the element of
physical harm had been proven," which indicated to the court of appeals that the trial court
had completely failed to consider the affirmative defense. (Emphasis sic.) Id. There is no
such limiting statement in the trial court's decision in this case. Under the circumstances
of this case, appellant's argument elevates form over substance.
{¶ 57} For the foregoing reasons, appellant's eighth assignment of error is
overruled.
F. Fifth and Sixth Assignments of Error
{¶ 58} Because appellant's fifth and sixth assignments of error pertain to the
sufficiency of the evidence on appellant's self-defense claim, we shall consider them
together. In appellant's fifth assignment of error, appellant urges us to overrule our prior
decision in State v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, wherein this
court held that the burden-shifting language of R.C. 2901.05(B)(1), as amended March 28,
2019, did not convert the absence of self-defense into an essential element of the charged
offense, such that it is appropriate for a sufficiency of the evidence review. Id. at ¶ 43.4 In
appellant's sixth assignment of error, appellant argues that appellee did not produce
evidence which, if believed, disproved at least one of the elements of his self-defense claim
beyond a reasonable doubt.
{¶ 59} "Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
4The Supreme Court of Ohio has accepted Messenger's appeal in State v. Messenger, 164 Ohio St.3d 1460,
2021-Ohio-3594.
No. 21AP-173 18
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency." State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11,
citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. Thus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Id.{¶ 60} In overruling appellant's seventh assignment of error, we determined that
appellant's conviction was not against the manifest weight of the evidence. In making this
ruling, we examined the evidence relevant to self-defense and appellant's claim of
reasonable parental discipline. Thus, even if self-defense is subject to a sufficiency analysis
in this court, the sufficiency argument raised in appellant's sixth assignment of error must
be overruled. For similar reasons, our ruling on appellant's seventh assignment of error
renders appellant's fifth assignment of error moot. See App.R. 12(A)(1)(c). Even if we were
inclined to reexamine the rule of law in Messenger, which we are not, our determination
that appellant's conviction is supported by the weight of the evidence disposes of the need
to do so. See McCrary and Braxton.
{¶ 61} For the foregoing reasons, we overrule appellant's sixth assignment of error,
and we find appellant's fifth assignment of error moot.
G. Fourth Assignment of Error
{¶ 62} In appellant's fourth assignment of error, appellant contends that the trial
court committed plain error when it failed to expressly rule on the Crim.R. 29 motion for
acquittal asserted by appellant at the close of appellee's case-in-chief. We disagree.
{¶ 63} Pursuant to Crim.R. 29(A), "[t]he court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment, information, or complaint,
if the evidence is insufficient to sustain a conviction of such offense or offenses." This
means the trial court may grant a Crim.R. 29 motion only where, construing the evidence
most strongly in the state's favor, the evidence is insufficient to sustain a conviction. State
v. Wallace, 10th Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 63, citing State v. Jenks, 61 Ohio
St.3d 259 (1991). Thus, a Crim.R. 29(A) motion for judgment of acquittal tests the
sufficiency of the evidence. State v. Black, 10th Dist. No. 19AP-637, 2021-Ohio-676, ¶ 16.
No. 21AP-173 19
{¶ 64} In ruling on appellant's seventh assignment of error, we determined that
appellant's conviction was not against the manifest weight of the evidence based on witness
testimony appellee produced in its case-in-chief. Because that ruling necessarily included
a finding that appellee's evidence was sufficient to sustain appellant's conviction, beyond a
reasonable doubt, we perceive no trial court error with regard to appellant's Crim.R. 29
motion, let alone plain error. Accordingly, appellant's fourth assignment of error is
overruled.
H. Appellant's Ninth Assignment of Error
{¶ 65} In appellant's ninth assignment of error, appellant contends that he was
unfairly prejudiced due to the cumulative effect of the trial court's errors.
{¶ 66} "Under the doctrine of cumulative error, 'a judgment may be reversed where
the cumulative effect of errors deprives a defendant of his constitutional rights, even though
the errors individually do not rise to the level of prejudicial error.' " State v. Zhu, 10th Dist.
No. 21AP-10, 2021-Ohio-4577, ¶ 70, quoting State v. Johnson, 10th Dist. No. 10AP-137,
2010-Ohio-5440, ¶ 34, citing State v. Garner, 74 Ohio St.3d 49, 64 (1995). Because we
have found no merit in any of the claimed errors, the doctrine of cumulative error is
inapplicable. Accordingly, we overrule appellant's ninth assignment of error.
IV. CONCLUSION
{¶ 67} Having overruled appellant's first, second, third, fourth, sixth, seventh,
eighth, and ninth assignments of error and finding appellant's fifth assignment of error
moot, we affirm the judgment of the Franklin County Municipal Court, but we remand the
case for that court to issue a nunc pro tunc entry correcting the error we have identified in
the March 31, 2021 sentencing entry.
Judgment affirmed;
cause remanded.
NELSON, J., concurs.
SADLER, J., concurs in judgment only.
NELSON, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).
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