State v. Allen

[Cite as State v. Allen, 2022-Ohio-4360.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRIAN S. ALLEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 CO 0002Criminal Appeal from the
East Liverpool Municipal Court
Columbiana County, Ohio
Case No. 21 CRB 323
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Vito Abruzzino, Prosecutor, Atty. Christopher R. W. Weeda, Assistant Prosecutor,
Atty. Steven V. Yacovone, Assistant Prosecutor, 135 South Market Street, Lisbon, Ohio
44432 for Plaintiff-Appellee and
–2–
Atty. Charles A.J. Strader, Atty. Charles Strader, LLC, 175 Franklin Street, SE, Warren,
Ohio 44481 for Defendant-Appellant.
Dated: December 1, 2022
Robb, J.
{¶1} Appellant, Brian S. Allen, appeals the trial court’s judgment finding him guilty
of assault in violation of R.C. 2903.13(A), a first-degree misdemeanor, after a jury trial.
Appellant was sentenced to 90 days in jail with 80 days suspended and one year of
probation; ordered to pay a $250 fine and court costs; ordered to have no contact with
the victim, the victim’s family, or the state’s witnesses; and ordered to attend an anger
management course. We stayed his jail term pending appeal.
{¶2} Appellant Brian raises four assignments of error and contends his rights to
a speedy trial and conflict-free counsel were violated. He also asserts his conviction is
against the manifest weight of the evidence and based on insufficient evidence. For the
following reasons, we affirm.
Statement of the Case
{¶3} An argument arose about personal property the day after Dale Allen’s
funeral. According to the trial testimony, the decedent’s mother, Linda Allen, told people
attending the calling hours that she did not want her grandson, Dillon Allen, to have his
father’s possessions, which were displayed at the funeral home, because Dillon would
pawn them. This argument eventually resulted in a physical altercation between Dillon,
and the decedent’s three brothers, Daniel, Appellant Brian, and David Allen. Daniel,
Brian, and David Allen shared the same trial counsel, and their cases were consolidated
for trial purposes only.
{¶4} The day of the altercation, Dillon called his grandmother yelling and upset
about her derogatory statements. Dillon decided to return one of the items, a deer head,
to her but wanted to keep the other disputed item, a crossbow. At one point during the
call, Dillon was told to come and collect his father’s possessions from his grandmother’s
home. Dillon’s uncle Brian was there at the time. According to Dillon, Appellant Brian
told him over the phone that he was going to “beat his ass.” (Tr. 233.) But according
Case No. 22 CO 0002–3–
to Brian, Linda, and Dillon’s grandfather Daniel Allen Jr., Dillon told Brian he was going
there to “smack [Brian] in [his] fat fucking head.” (Tr. 571.)
{¶5} Linda put Dillon’s father’s possessions in garbage bags and placed them in
the driveway. Dillon asked his mother, Rhonda Allen, to go with him to collect his
father’s things, and she asked her boyfriend to go too because he had a truck. They
drove separately to Linda and Daniel Jr.’s house. Dillon drove his mother’s car and had
his cousin Ryan with him, and Rhonda arrived with her boyfriend, William Buckins,
referred to as Bud. Rhonda and Bud began loading the bags into his truck while Dillon
delivered the deer head. (Tr. 203.)
{¶6} Dillon’s other uncle, Daniel, was sitting in his parked truck and was on the
telephone. Meanwhile Linda called Dillon’s third uncle, David Allen, to come to the
home to help maintain the peace. (Tr. 541.)
{¶7} The testimony thereafter is conflicting. Appellant Brian testified that Dillon
“sucker-punched” him; whereas Dillon testified that Brian attacked him and pushed him
onto the hood of a car. Dillon is five feet, nine inches tall and 140 pounds, and his uncle
Brian is six feet, five inches tall and weighs 375 pounds. (Tr. 634.) Dillon recalls being
thrown around “like a rag doll.” He said the fight was about him disrespecting his
grandmother. (Tr. 204.)
{¶8} There is limited video evidence of the physical altercation that was captured
via a doorbell camera. It does not depict the entire altercation. It is difficult to see details
of the fight because the majority of the footage depicts the front porch, and the
altercation occurred on the far side of the street farthest away from the camera.
{¶9} The video shows Dillon surrounded by his three uncles, as well as his
cousin Ryan, his mother Rhonda, and Bud. Dillon is seen leaning backward on the
hood of a car and being grabbed and pulled. At one point, Dillon falls toward the ground
and nearly lands on the street before Appellant Brian can be seen picking him up and
placing him back toward the center of the hood of the car. Daniel is the farthest away
from the camera, and he can be seen leaning toward Dillon and grabbing at him. Dillon
then slips away with Ryan’s help. Daniel and Appellant Brian then pursue him down
the street while Rhonda can be seen trying to hold them back. (State’s Exhibit 6;
Defendant’s Exhibit D.)
Case No. 22 CO 0002–4–
{¶10} The footage ends, and thereafter, Dillon picked up a paver from a
neighbor’s landscaping before dropping it. (Tr. 674.) As a result of the altercation,
Dillon had scrapes on his knees, elbows, and nose. Photographs of his injuries were
admitted at trial. (Tr. 212; State’s Exhibits 1-4.)
{¶11} Appellant Brian was initially charged with domestic violence in violation of
R.C. 2919.25(A), a first-degree misdemeanor. (March 18, 2021 Arraignment Entry.)
Appellant Brian appeared with counsel, plead not guilty, and signed a waiver of speedy
trial time. (March 18, 2021 Time Waiver.)
{¶12} Following the exchange of discovery, the jury trial was set for August 4,
2021. The parties appeared with counsel, but the trial did not go forward in light of a
potential plea deal. The plea agreement was not finalized, and the trial was reset for
October 27, 2021. There is no transcript of this hearing in the record. (August 4, 2021
Judgment Entry.)
{¶13} On that same date, August 4, 2021, the trial court granted the state’s
motion to amend the charge from domestic violence to assault, in violation of R.C.
2903.13(A), a first-degree misdemeanor. (August 4, 2021 Judgment Entry.) Appellant
Brian did not challenge the amended charge.
{¶14} On October 25, 2021, Appellant Brian filed a motion to continue the
October 27, 2021 jury trial, which the court granted. It reset the trial to January 5, 2022.
The jury trial commenced January 5, 2022, and the jury found Appellant Brian guilty of
assault. (Jan. 7, 2022 Verdict.) Appellant’s brother Daniel was also convicted of assault
via the same jury trial. Their other brother, David W. Allen, was found not guilty. (Tr.
819.) Their cases were consolidated for trial purposes only. Appellant’s brother, Daniel
Allen, separately appealed to this court.
{¶15} As stated, Appellant Brian was sentenced to 90 days in jail with 80 days
suspended and one year probation. He was ordered to pay a $250 fine and court costs;
ordered to have no contact with the victim, the victim’s family, or the state’s witnesses;
and ordered to attend an anger management course. (Jan. 7, 2022 Sentence and
Conviction.) Appellant Brian raises four assignments of error.
First Assignment of Error: Right to a Speedy Trial
{¶16} Appellant Brian’s first assigned error asserts:
Case No. 22 CO 0002–5–
“The trial court committed reversible error by failing to bring the case of Assault
against the Defendant/Appellant, Brian S. Allen, to trial pursuant to the speedy trial
statute of the Ohio Revised Code.”
{¶17} An appellate court's review of a speedy trial claim is a mixed question of
law and fact. State v. High, 143 Ohio App.3d 232, 242, 757 N.E.2d 1176 (2001). We
defer to the trial court's findings of fact if they are supported by competent, credible
evidence and independently review whether the trial court correctly applied the law. Id.{¶18} Ohio recognizes both a constitutional and a statutory right to a speedy trial.
State v. King, 70 Ohio St.3d 158, 161, 637 N.E.2d 903 (1994). The prosecution and the
trial court are required to try an accused within the time frame provided by statute. State
v. Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977).
{¶19} R.C. 2945.73(B) states: “Upon motion made at or prior to the
commencement of trial, a person charged with an offense shall be discharged if he is
not brought to trial within the time required by sections 2945.71 and 2945.72 of the
Revised Code.” Thus, a defendant is statutorily required to raise the issue by motion
made at or prior to the commencement of trial. Id.{¶20} R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy
trial based on the level of offense and states in part:
(B) Subject to division (D) of this section, a person against whom a charge
of misdemeanor * * * is pending in a court of record, shall be brought to trial
as follows:
***
(2) Within ninety days after the person's arrest or the service of summons,
if the offense charged is a misdemeanor of the first or second degree, or
other misdemeanor for which the maximum penalty is imprisonment for
more than sixty days.
R.C. 2945.71(B). And R.C. 2945.72 lists a number of tolling events that extend the
period of time in which the state must bring a defendant to trial. R.C. 2945.71(A)-(I).
{¶21} This court has repeatedly held that a defendant’s failure to file a motion to
dismiss on speedy trial grounds waives the issue on appeal. State v. Trummer, 114
Ohio App.3d 456, 470-471 (7th Dist. 1996), citing Partsch v. Haskins, 175 Ohio St. 139,
Case No. 22 CO 0002–6–
140, 191 N.E.2d 922 (1963) (the right to a speedy trial is “a right which must be claimed
or it will be held to have been waived.”); State v. Mock, 187 Ohio App.3d 599, 2010-
Ohio-2747, 933 N.E.2d 270, ¶ 15 (7th Dist.); State v. Hergenroder, 7th Dist. Columbiana
No. 07 CO 17, 2008-Ohio-2410, ¶ 13.
{¶22} “[T]he failure to raise the question of such a violation denies the [state] the
opportunity to establish that tolling of the statute occurred.” State v. Turner, 168 Ohio
App.3d 176, 2006-Ohio-3786, 858 N.E.2d 1249, ¶ 22 (5th Dist.). Due to the failure to
raise speedy trial issues in the trial court, the state had no obligation to make a record
of the reasons for any delays in the proceedings below to demonstrate that Appellant
Brian was afforded his right to a speedy trial. Id. Accordingly, this assignment of error
is overruled.
Second Assignment of Error: Waiver of Attorney’s Potential Conflict of Interest
{¶23} Appellant Brian’s second assigned error asserts:
“The trial court committed reversible error as a Waiver of Conflict was not filed in
the above captioned matter, where co-defendants utilized a single attorney in a
consolidated case.”
{¶24} Appellant Brian claims the trial court did not secure a knowing and
voluntary waiver of conflict from the co-defendants regarding their decision to use the
same defense counsel. He claims there is no oral or written waiver of conflict filed with
the court, and as a result, there “may” have been resulting prejudice. The factual
premise for Appellant Brian’s argument is partially correct. Although there is no written
waiver of potential conflict of interest signed by him and filed with the trial court regarding
their decision to use the same defense counsel, the trial court conducted an oral conflict-
of-interest inquiry during which the court addressed each defendant individually.
{¶25} A criminal defendant has the right to counsel that is free from conflicts of
interest. State v. Williams, 166 Ohio St.3d 159, 2021-Ohio-3152, 184 N.E.3d 29, ¶ 6.
However, a trial court does not have an independent obligation or duty to inquire as to
conflicts when faced with co-defendants employing the same counsel unless there is
some indication alerting the trial court to incompatible interests. Id. (“A trial court's
affirmative duty to inquire into multiple representation of codefendants arises when the
trial court knows or has reason to know that a possible conflict of interest exists or when
Case No. 22 CO 0002–7–
a defendant objects to the multiple representation.”). And absent an objection or some
other circumstance indicating the court should have known about a possible conflict,
the court may assume there is no conflict or that the defendant is aware of the risk and
accepted it. Williams, supra, at ¶ 16, citing State v. Ingol, 89 Ohio App.3d 45, 49, 623
N.E.2d 598 (9th Dist.1993).
{¶26} Moreover, “the right to be represented by an attorney free of conflicts must
be balanced against ‘the right of a defendant who does not require appointed counsel
to choose who will represent him.’” State v. Smith, 3rd Dist. Hancock No. 5-11-10,
2012-Ohio-5020, ¶ 26, citing U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct.
2557 (2006). Thus, the conflict must be raised or the court must have some actual
reason or notice before it is required to inquire. For example, if co-defendants are
assigning blame on one another; making inconsistent statements; or putting forth
competing defense strategies, then an inquiry is likely necessary. Id. According to the
Ohio Supreme Court in Williams, the mere possibility of a conflict of interest is not
enough to require a trial court to inquire. Id. at ¶ 19.
{¶27} Further, Appellant Brian does not identify nor has this court found a rule,
statute, or case requiring a trial court to secure a written waiver of a potential conflict of
interest to be filed with the clerk of courts in a case.
{¶28} The trial court initiated the following dialogue regarding a possible conflict
of interest at the beginning of an April 2021 status conference:
THE COURT: We are dealing with three cases here * * *.
Now, I note that all three defendants are here with Mr. King as counsel.
And I know, Mr. King, I asked you about this before, but you are satisfied –
and I leave it up to you, you know the facts better than I, but this is not a
conflict of interest situation for you[?].
MR. KING: Judge, that has already been explored with all my clients,
and, no, there is no conflict of interest and [there] doesn’t appear to be any
on the horizon at all.
***
THE COURT: * * * Now, Mr. King, we have set this for one jury trial
based on your representation to me that you have discussed the matter of,
Case No. 22 CO 0002–8–
I guess, would be trifurcation of – which your clients could insist upon, and
the Court would make a decision as to whether to try all three of them
together or to try them separately.
MR. KING: Judge, that has been discussed with all three of my
clients, and it’s * * * -- our agreement and – for the record – that would be –
have – combining all three cases to one jury trial. * * *
THE COURT: All right. And you’ve had a full discussion with your
clients as to the possible issues one way or the other on the question of
–
MR. KING: In regards to having separate trials and then of course
each of them testifying as witnesses on what particular defendant would go
forward with a jury trial, and I also indicated that I would need to reduce that
to a written document, and going to have it circulated so that they can all
sign it[,] and I’ll file originals in each of their cases then.
(April 13, 2021 Tr. 2-6.)
{¶29} At that point, the court indicated it is available for individual motion
hearings if counsel requested them, and Mr. King responded that he did not anticipate
the need for separate motion hearings. The judge then indicated he was going to
consolidate the three cases anticipating a written consent agreement, as indicated by
the defendants’ counsel. The court then addressed each of the three defendants
individually and asked the same questions.
{¶30} The trial court judge spoke directly to Appellant Brian and asked:
THE COURT: * * * first, which one of you is Brian? Okay. Do you
understand what we are talking about here?
MR. BRIAN ALLEN: Yes, sir.
THE COURT: All right. And I know you have had extensive
discussion with Mr. King about the benefit or detriments of consolidating the
cases. What is your wish? You want to try all three together?
MR. BRIAN ALLEN: Yes, Your Honor, I would like to have them all
three together.
THE COURT: Okay. * * *
Case No. 22 CO 0002–9–
***
All right, Mr. King, you’ll follow that up with a written waiver?
MR. KING: Yes, Your Honor.
(April 13, 2021 Tr. 7-8.)
{¶31} At that juncture, the trial court judge instructed counsel to let him know if
the wishes of the defendants changed regarding the consolidation of the trial. The court
then asked the state if it consented to the consolidation of the cases for trial, and the
prosecutor indicated it had no objection at this point but that it would advise if any issues
arose about consolidation.
{¶32} Thereafter, at the June 9, 2021 status conference, the issue was again
referenced. The court asked:
Now gentlemen, * * * we are scheduled to have a jury trial. We are
having all three Defendants tried at the same time, and your clients have
specifically waived any conflict that might - - they are aware of the potential
conflicts; am I correct?
Mr. King: That has been addressed, Your Honor.
(June 9, 2021 Tr. 10-11.)
{¶33} Here, the three co-defendant’s theory of the case and their defenses were
largely consistent—they were not blaming one another or putting forth competing
defense strategies such that the trial court likely had actual notice sufficient to require it
to inquire about a conflict. Nevertheless, it appears the court fully vetted the issue, and
as such, Appellant Brian’s second assignment of error lacks merit.
Third Assignment of Error: Sufficiency of the Evidence
{¶34} Appellant Brian’s third assigned error asserts:
“The trial court committed reversible error as there was insufficient evidence
offered by the Plaintiff/Appellee, State of Ohio, to establish elements of the crime of
assault.”
{¶35} Whether the evidence is legally sufficient to sustain a verdict is a question
of law, which appellate courts review de novo. State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997); In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d
1203, ¶ 3.
Case No. 22 CO 0002– 10 –
{¶36} On appeal we determine whether the evidence presented, allows a
rational trier of fact to find the essential elements of the crime established beyond a
reasonable doubt. State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d
816, recon. denied sub nom. State v. Walker, 160 Ohio St.3d 1517, 2020-Ohio-6946,
159 N.E.3d 1179.
{¶37} Appellant Brian argues his convictions are not based on sufficient
evidence because there was conflicting testimony about who was the aggressor and
there was no conclusive evidence or video recording actually showing him push Dillon,
consistent with Dillon and Rhonda’s testimony. We disagree.
{¶38} Appellant Brian was convicted of assault in violation of R.C. 2903.13(A),
which states: “No person shall knowingly cause or attempt to cause physical harm to
another * * *.” Appellant Brian claimed self-defense. Thus, the state had the burden of
showing beyond a reasonable doubt that he did not use the force in self-defense, or in
other words, his act of pushing Dillon was conduct not in self-defense. R.C.
29001.05(B)(1).
{¶39} Dillon testified Appellant Brian was the initial aggressor but his other two
uncles likewise attacked him. He said Appellant Brian “rushed him” or “ran up on him”
and pushed Dillon onto the hood of a car. Then Daniel and David pulled him off of the
car before Appellant Brian got on top of him. He said when he was on the ground, all
three were standing above him, and he had cuts on his legs. When he was able to
stand, he recalls “Danny” chasing him down the street screaming at him until Dillon
picked up the cement paver or brick. (Tr. 207-208.)
{¶40} Dillon’s mother Rhonda testified she did not see who threw the first punch
but remembers Appellant Brian was the aggressor. She said she had seen “Brian come
at Dillon.” Then “Dave and Dan” showed up, and they all started fighting with Dillon.
She said, “[t]hey beat him up. * * * He got away, at one point, and they went after him
again.” (Tr. 280.) Bud, Rhonda’s boyfriend, also testified that Appellant Brian was the
initial aggressor. He recalls Appellant Brian grabbing Dillon and then the other two
brothers got out of their trucks, and the fight escalated. Bud also recalls Appellant Brian
and Dillon yelling at one another about disrespect.
Case No. 22 CO 0002– 11 –
{¶41} Bud said the other two brothers joined the fight and were grabbing,
pushing, and pulling on Dillon all while yelling at each other. The three brothers had
Dillon against the hood of a car. Bud also said at some point, all three were kicking and
punching, and when Dillon broke free, all three chased him down the street. Bud also
recounted Appellant Brian stating he “owns this fucking street, owned this fucking town,
and owned the fucking cops.” (Tr. 315-318.)
{¶42} In Defendants’ Exhibit D, a jump drive containing doorbell video footage,
Daniel can be seen in a black t-shirt on the far side of the hood of the car leaning over
and grabbing and reaching toward Dillon while Dillon is sliding off the other side of the
hood of the car. Dillon then loses his footing, and Appellant Brian then picks Dillon up
and puts him back toward the center of the hood within Daniel’s reach. Multiple people
can be seen reaching and grabbing toward Dillon, including Appellant Brian, before
Dillon is able to slip free and run away backward with Appellant Brian and Daniel
following after him in an aggressive manner. Appellant Brian and Daniel can be seen
leaning toward Dillon, grabbing and pulling at him while he had his back up against the
car. (Def. Exh. D.)
{¶43} Rhonda’s call to 911 was played at trial, and during the audio recording,
she can be heard yelling to the 911 operator, stating: “they are ganging up on one
person.” She can then be heard yelling at someone in the background, saying “that is
exactly what you guys did.” (State’s Exhibit 5.)
{¶44} In State’s Exhibit 7, according to the body camera footage of Chris Green,
Dillon is seen and heard telling then-officer Green what occurred. Dillon states after
returning the deer head to his grandmother, his uncle Brian “bum-rushed” him. Dillon
said then all three of his uncles were beating him. He said they were “kicking the shit
out of me. They keep coming after me.” He said Dave hit him while he was on the
ground.
{¶45} Dillon told Green his uncles were upset because he was “disrespecting his
grandmother.” Dillon admitted he tried to defend himself. He also said they were upset
because he had his father’s crossbow, which they did not want him to have. During his
conversation with Green, Dillon stated he was not using drugs at the time and was on
suboxone from his doctor. Also, during this recording, Dillon can be heard telling Green
Case No. 22 CO 0002– 12 –
the police should secure the footage from the neighbor’s video doorbell camera. Dillon
then said he just wants to get his stuff and leave. (State’s Ex. 7.)
{¶46} Thereafter, the recording depicts Green speaking with Rhonda, who is
seen crying and is very upset. She said, “they were like three raging bulls. Who does
that?” She then asked Green if she can leave. (State’s Ex. 7.)
{¶47} Green testified for the defense and said he was forced to file the charges
against the Allen brothers, even though he did not think there was probable cause to do
so. (Tr. 448-450.) Green was terminated from the local police department, in part, for
dishonesty and making false statements in connection with this investigation. (Tr. 405.)
There was also testimony Green was a close friend of the Allen brothers; he had been
fishing with Brian; and they went to an Ohio State football game together. (Tr. 375.)
Green claims he was wrongfully terminated. (Tr. 450.) The local police captain Fred
Flati testified:
Chris [Green] failed to actually address our whole reason for being
there—the assault. He failed to [obtain] any–any information pertinent to
that incident, which would, you know, make our investigation a little easier.
He lied to me. He lied to Officer Watkins. And, I mean, being a police
officer lying you know, to * * * adversely affect an investigation—
unacceptable.
(Tr. 405.)
{¶48} After arriving at the scene of the altercation, Green accused Dillon of
having a white substance on the outside of one of his nostrils. The substance is not
seen by others at the scene and not visible in the body camera footage. Dillon denied
using illegal drugs at the time, and Flati testified Dillon did not show any signs of
impairment. (Tr. 400.)
{¶49} During Officer Justin Watkins’ body camera footage, Watkins can be seen
approaching the Allen brothers before he fist-bumps Daniel. Watkins then turned off
his camera before speaking with them. (State’s Ex. 7.) Flati said Watkins was a close
friend of the Allen brothers as well, which Watkins acknowledged during his testimony.
(Tr. 375.)
Case No. 22 CO 0002– 13 –
{¶50} Based on the foregoing, there was more than enough evidence showing
Appellant Brian knowingly caused or attempted to cause physical harm to Dillon.
Further, Rhonda, Dillon, and Bud testified Appellant Brian was the aggressor, and Dillon
testified Appellant Brian pushed him first. Appellant Brian can also be seen lunging and
pulling at Dillon while Dillon is backward on the hood of a car, and the state introduced
images of scrapes and bruising Dillon suffered as a result of the altercation.
{¶51} Thus, a rational trier of fact could find the essential elements of assault
beyond a reasonable doubt and Appellant Brian was not acting in self-defense. This
assigned error lacks merit.
Fourth Assignment of Error: Weight of the Evidence
{¶52} Appellant Brian’s fourth assigned error asserts:
“The trial court committed reversible error as the conviction for assault was against
the manifest weight of the evidence.”
{¶53} A manifest weight review requires us to review the evidence and to
determine whether this is an exceptional case in which it is patently apparent the jury
lost its way. State v. Thompkins, 78 Ohio St.3d 380, 389, 678 N.E.2d 541 (1997). The
reversal of a jury's verdict on manifest weight grounds requires a unanimous
concurrence of all three judges. Id.The * * * weight of the evidence addresses the evidence's effect of inducing
belief. * * * In other words, a reviewing court asks whose evidence is more
persuasive—the state's or the defendant's? * * * [A]lthough there may be
sufficient evidence to support a judgment, it could nevertheless be against
the manifest weight of the evidence. * * * ‘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. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
{¶54} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. “A jury is free to believe all, some, or none
of the testimony of each witness appearing before it.” State v. Ellis, 8th Dist. Cuyahoga
Case No. 22 CO 0002– 14 –
No. 98538, 2013-Ohio-1184, ¶ 18, citing Iler v. Wright, 8th Dist. Cuyahoga No. 80555,
2002-Ohio-4279, ¶ 25.
{¶55} As stated, Appellant Brian was convicted of assault in violation of R.C.
2903.13(A), which states: “No person shall knowingly cause or attempt to cause
physical harm to another * * *.” Appellant Brian asserted self-defense. Thus, the state
had the burden of showing beyond a reasonable doubt that he did not use the force in
self-defense. R.C. 29001.05(B)(1).
{¶56} Appellant Brian contends the state failed to establish he did not act in self-
defense and Appellant Brian did not cause or attempt to cause any of Dillon’s “physical
harm.”
{¶57} Dillon testified after arriving at his grandparents’ home, he handed his
grandmother the deer head and that is when Appellant Brian “bum-rushed” him,
explaining:
It all happened so fast, honestly. It was kind of a blur. I mean, it was
about me disrespecting his mother because I told her no. * * *
***
[Brian was] immediately attacking me. I was getting hit, choked,
punched, everything you could * * *, I was immediately defending myself.
Like, he had pushed me onto the hood of the Saturn.
***
He ran up on me. I mean, I am 140 pounds. He threw me around
like a rag doll, honestly. I was * * * scared.
***
* * * I was doing everything I could do to defend myself. But, like I
said, * * * all I could do was wiggle around.
(Tr. 203-205.)
{¶58} Rhonda testified she and Bud were picking up bags of Dale’s belongings
while Brian and Dillon were yelling back and forth. She turned around and saw “Brian
go toward Dillon and the fight was on.” (Tr. 279.) She did not see who initiated the
physical force but said they collectively “beat him up.” (Tr. 281-282.)
Case No. 22 CO 0002– 15 –
{¶59} Bud recalled Dillon handing his grandma the deer head before Dillon and
Appellant Brian began arguing about respect. Bud said Appellant Brian was “definitely
the aggressor” and explained it was “more like grabbing” before the other two brothers
got involved and “[j]oined the fight.” Bud agreed at some point during the altercation,
all three brothers were throwing punches, kicking, and doing things like that while Dillon
was “[r]ight in the middle of it all.” (Tr. 316.)
{¶60} Appellant Brian testified he is six feet, five inches tall and weighs 375
pounds. (Tr. 634.) Appellant Brian acknowledges shoving Dillon about six to eight feet
away from him, but claims it was only after Dillon “sucker-punched” him. Appellant Brian
testified Bud and Rhonda made up his alleged statements that he owned the police, the
street, and the town. (Tr. 654.)
{¶61} Contrary to Appellant Brian’s arguments, this is not an exceptional case in
which the jury clearly lost its way. His conviction is not against the manifest weight of
the evidence. As for Appellant Brian’s claim of self-defense, the evidence was before
the jury for it to consider, and it did not believe Appellant Brian’s version of the facts.
Thus, we defer to the jury’s decision. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Johnson, 7th Dist. Mahoning No. 19 MA
0030, 2020-Ohio-3640, ¶ 7 (the jury is in the best position to view the witnesses, and to
observe their demeanor, gestures, and voice inflections). This assignment lacks merit.
Conclusion
{¶62} Appellant Brian waived his speedy trial argument on appeal by failing to
pursue a motion to dismiss on speedy trial grounds to the trial court. Appellant Brian’s
claimed denial of conflict-free counsel argument also lacks merit since the matter was
addressed by the court. Last, Appellant Brian’s assault conviction is supported by
sufficient evidence and not against the manifest weight of the evidence. Because each
of his arguments on appeal lack merit, we affirm the trial court’s decision.
Waite, J., concurs.
D’Apolito, J. concurs.
Case No. 22 CO 0002[Cite as State v. Allen, 2022-Ohio-4360.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
East Liverpool Municipal Court of Columbiana County, Ohio, is affirmed. Costs to be
taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.