State v. Browning , 2022 Ohio 2530 ( 2022 )

[Cite as State v. Browning, 2022-Ohio-2530.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2021-10-132
Appellee, : OPINION
7/25/2022
:
- vs -
:
VIRGUS BROWNING, :
Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. 21 CRB 02108
Laura R. Gibson, City of Hamilton Prosecuting Attorney, for appellee.
Christopher P. Frederick, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Virgus Browning, appeals his conviction in the Hamilton Municipal
Court for assault.
{¶ 2} Appellant was charged by complaint with assault following an August 23, 2021
altercation between appellant and Michael Kirby during which appellant held down Kirby on
the hood of a car and Kirby suffered a lump on his head and a black eye. Appellant did not
suffer any injuries. The matter proceeded to a bench trial on October 25, 2021. Kirby,
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Hamilton Police Officer Frank Parrado, and Alexis Gordon, a friend of Kirby, testified on
behalf of the state. Appellant, his uncle Jason Browning ("Uncle"), and appellant's mother,
Heather Quante, testified on appellant's behalf.
{¶ 3} At the time of the incident, appellant and Kirby were both residing in the same
apartment complex in Hamilton, Ohio. On August 23, 2021, as appellant was driving out of
the parking lot of the apartment complex, Kirby, Gordon, and Robert Sturgill, Kirby's then
boyfriend, yelled at appellant to "slow the F down!" Appellant stopped his vehicle, and
accompanied by Uncle, angrily approached Kirby and his friends. Appellant and Kirby were
yelling and cussing at one another.
{¶ 4} The state and the defense presented two different versions of the ensuing
assault. Kirby and Gordon both testified that appellant pushed Kirby who fell backward onto
the hood of his car. Gordon subsequently withdrew from the situation and saw nothing else.
Kirby testified that after he fell backward onto the hood of his car, appellant hit him in the
face on the left side toward his eye. Kirby then ran toward the apartment complex, chased
by appellant, barricaded himself in the building, and called the police.
{¶ 5} Appellant and Uncle testified that appellant approached Kirby and his friends
to determine what the problem was. Uncle testified that during the altercation, appellant
was over Kirby, telling him to "chill out"; Kirby was swinging at appellant. Uncle testified
that appellant never touched Kirby. As Kirby drew back on appellant, the latter "just kind of
stopped him." No one was hit; no punches were thrown. Uncle testified that as soon as
the altercation became heated, he grabbed appellant by the waist and walked him
backwards. Kirby yelled at Sturgill to stab appellant. While pulling appellant away from
Kirby, Uncle was stabbed in the arm. Uncle then left the scene to go to the hospital.
{¶ 6} Appellant testified that during the heated verbal exchange, Kirby was getting
ready to punch him when the latter caught it. Appellant turned around, stating "oh, you're
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going to hit me," and came toward Kirby. Kirby fell back onto the hood of his car. Appellant
then "placed one hand on [Kirby's] knee, one hand on his shoulder," and told him to calm
down. As appellant removed his hands and backed up, Sturgill pulled out a knife. Uncle
was stabbed as he was grabbing appellant to physically remove him from the scene.
Appellant admitted he was angry at Kirby but denied punching or hitting him in the face,
giving him a black eye, or threatening him. Appellant admitted he put his hands on Kirby
and held him down but denied he used force in doing so and denied he pushed him. When
asked if he caused harm to Kirby in putting his hands on him, appellant replied, "I don't
know. He is kind of sensitive or something. I don't know, whatever. I guess so."
{¶ 7} On cross-examination, appellant testified he was ready to defend himself
when Kirby tried to hit him a second time. However, "all I had to do was kind of just turn
around and [Kirby] fell back on his car." Appellant then put his hands on Kirby. On redirect-
examination, appellant testified Uncle grabbed him and pulled him away because Uncle
"thought I was going to hit somebody, because it was starting to get heated. But I would've
head butted his fist so hard it would have broke if it hit me."
{¶ 8} Officer Parrado responded to the scene, talked to appellant, and obtained
written statements from Kirby and Gordon. The officer described appellant as "pretty
upset," "pretty fired up." Appellant told the officer he became "really upset" when Kirby told
him to slow down; the two engaged into a verbal altercation and Kirby attacked him; Sturgill
then stabbed Uncle. Officer Parrado testified that appellant did not acknowledge physically
grabbing or touching Kirby. Appellant did not have and did not report injuries. By contrast,
Kirby had a recent lump on his head and later developed a black eye.
{¶ 9} Quante, appellant's mother, testified she had driven appellant to court for a
previous pretrial hearing when she heard Kirby tell an individual in the hallway, "He hit us
and that's what we're saying." Quante testified she recognized Kirby from the apartment
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complex, having spoken to him when she helped appellant move into the apartment
complex. Quante acknowledged she did not know the person Kirby was talking to and
assumed it was Sturgill. Quante also acknowledged she did not know what Kirby and the
other individual were talking about. Kirby denied making the statement to anybody in the
hallway and testified Sturgill never came to the trial court.
{¶ 10} At the conclusion of the case, the trial court found appellant guilty of assault
based upon his testimony:
If I accept your testimony completely, then you have committed
assault. So based on your testimony, you held him down when
he fell down on the hood of the car. Okay. So I'm going to find
you guilty of assault on that basis.
Contingently, * * * I'm going to comment on two – two things.
First of all, it's not clear to me who hit Mr. Kirby. He says it was
you. Ms. Gordon doesn't – didn't testify to that. So I have a
reasonable doubt who hit him in the eye. I don't think there has
been enough evidence about that.
Your uncle's testimony was * * * troubling to the Court in the
sense that your uncle actually testified that he grabbed you and
tried to pull you away. So he must have thought or he had a
belief that you were going to assault him or you had assaulted
him.
So, if I take his testimony, find his testimony credible, I could
find you guilty of attempted assault. But I'm just basing it strictly
on what you told the Court.
[I]f Mr. Kirby * * * fell down, there was no reason in this Court's
mind that you were threatened, that you had to defend yourself.
You should have just went away then. But you actually
physically had contact with him. So for those reasons, again, I
find you guilty of assault.
{¶ 11} Appellant now appeals, raising one assignment of error:
{¶ 12} MR. BROWNING'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 13} Appellant argues his assault conviction is against the manifest weight of the
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evidence. Appellant asserts the trial court lost its way in finding him guilty of assault based
upon his testimony he placed his hands on Kirby in an effort to calm him down.
{¶ 14} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Clemmons, 12th Dist. Butler No. CA2020-01-004, 2020-Ohio-5394,
¶ 15. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
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.{¶ 15} Questions regarding witness credibility and weight of the evidence are
primarily matters for the trier of fact to decide because the trier of fact is in the best position
to judge the credibility of the witnesses and the weight to be given the evidence. Id. at ¶
16. An appellate court, therefore, will overturn a conviction due to the manifest weight of
the evidence "only in the exceptional case in which the evidence weighs heavily against the
conviction." Id.; State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.
{¶ 16} Appellant was convicted of assault in violation of R.C. 2903.13(A), which
provides, "No person shall knowingly cause or attempt to cause physical harm to another
or to another's unborn." Pursuant to R.C. 2901.22(B), "[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."
{¶ 17} After thoroughly reviewing the record, we find that the trial court did not lose
its way and create a miscarriage of justice in finding appellant guilty of assault. By his own
admission, appellant deliberately and angrily approached Kirby after the latter told him to
slow down. Appellant was angry at Kirby for being told what to do. As his testimony
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indicated, appellant was also generally angry at Kirby regarding the latter's behavior at the
apartment complex on previous occasions. The record shows that during their heated
verbal altercation, appellant pushed Kirby or forced him to fall onto the hood of his car.
Subsequently, appellant put his hands on Kirby and held him down. The record shows and
appellant testified that Uncle physically removed appellant because Uncle "thought
[appellant] was going to hit somebody, because it was starting to get heated." Although the
trial court found that the evidence did not prove beyond a reasonable doubt that appellant
punched Kirby, the evidence is uncontroverted that Kirby suffered a lump to the head and
a black eye from the altercation. There is no evidence Kirby was engaged in the altercation
with anyone other than appellant. An appellate court will overturn a conviction due to the
manifest weight of the evidence "only in the exceptional case in which the evidence weighs
heavily against the conviction." Clemmons, 2020-Ohio-5394 at ¶ 15. Such is not the case
here. Appellant's assault conviction is therefore not against the manifest weight of the
evidence.
{¶ 18} Appellant's assignment of error is overruled.
{¶ 19} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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