State v. Mendoza

[Cite as State v. Mendoza, 2017-Ohio-8977.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 16AP-893
(C.P.C. No. 16CR-1482)
v. :
(REGULAR CALENDAR)
Michael D. Mendoza, :

Defendant-Appellant. :

D E C I S I O N

Rendered on December 12, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee. Argued: Valerie Swanson.

On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam,
Erik P. Henry, and David F. Hanson, for appellant. Argued:
David F. Hanson.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Michael D. Mendoza, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which he was found guilty of felonious assault.
{¶ 2} On March 16, 2016, appellant was indicted on one count of felonious
assault, in violation of R.C. 2903.11, and two counts of robbery, in violation of R.C.
2911.02. The matter came for trial before a jury beginning November 8, 2016.
{¶ 3} Mark Walder, age 48, owns a carpet cleaning company, Hospitality Carpet
Care, and the bulk of his business involves providing services to hotels, restaurants, and
"hospitality-type" industries. (Tr. Vol. I at 57.) Walder's largest client, Indus Hotel
No. 16AP-893 2

Group, owns several hotels in the Columbus area, including the Hampton Inn, located in
downtown Columbus at 501 North High Street.
{¶ 4} Walder currently has two employees, and employs other workers on an as-
needed basis. Walder first met appellant during summer 2015, after appellant's father, a
friend of Walder, inquired as to whether Walder might have an employment opportunity
for his son. Walder subsequently contacted appellant "from time to time" about
performing work for his carpet cleaning business. (Tr. Vol. I at 64.)
{¶ 5} On the morning of February 22, 2016, Walder woke up early and realized he
might not have enough workers for a job site at the downtown Hampton Inn. Walder
decided to reach out to appellant via Facebook Messenger. Walder and appellant "had a
back and forth whether he would come to work that day" because of an issue involving
money Walder owed appellant for 10 to 15 hours of work appellant had performed the
previous week at a different hotel. (Tr. Vol. I at 67.) Walder had been in Florida that
week, but had made arrangements for another employee, Anthony Miller, to pay appellant
the money he was owed. Miller, however, had not yet provided the money to appellant.
{¶ 6} Walder informed appellant, during the Facebook Messenger interaction,
that if he came to work that morning "he could make some money as well as get paid for
15 or so hours that was still owed to him." (Tr. Vol. I at 70.) According to Walder,
appellant "didn't seem too interested in coming to work, but he * * * started to be
somewhat argumentative about why he didn't get paid." (Tr. Vol. I at 71.) Walder and
appellant "couldn't really come to a conclusion as to whether he was coming to work or
not." At one point during the Facebook Messenger interaction, appellant "threatened
violence to * * * Miller for not paying him and threatened to * * * put his ass to sleep if he
came to work." (Tr. Vol. I at 72.)
{¶ 7} Walder, who was concerned about a confrontation at the job site, instructed
appellant "not to come there with a bad attitude." Walder told appellant he would
"provide him his check or pay him later that day." Walder viewed it as a "tossup" whether
appellant would show up for work. (Tr. Vol. I at 73.)
{¶ 8} Walder and Miller arrived at the hotel job site that morning and began
cleaning carpets. Around noon, after they had been working approximately three hours,
appellant "showed up on the fifth floor demanding his money." Walder explained to
No. 16AP-893 3

appellant he did not have his money, and he was unable to go to the bank at that time and
leave Miller alone at the job site, "so he'd have to wait until after the job was over." (Tr.
Vol. I at 76.)
{¶ 9} Appellant "then began to be very argumentative" toward Miller "because he
thought * * * Miller was holding back the money that I had given him for whatever
reason." (Tr. Vol. I at 76.) Appellant "started to become belligerent," and "[h]is voice
became escalated." (Tr. Vol. I at 76-77.)
{¶ 10} At that time, Walder asked appellant to leave the site out of concern that he
was becoming "loud" and "would disturb the guests at the hotel." Appellant responded
"he wanted his money." Walder told appellant he would "pay him that evening," and
asked him to "please leave" because he did not "want to have to call security." (Tr. Vol. I
at 77.)
{¶ 11} Walder and Miller "started to go back to work." (Tr. Vol. I at 77.) Miller left
the immediate area to work in one of the guest rooms. Walder testified he was near a wall
on one side of a room and appellant was standing beside a wall on the other side of the
room. According to Walder, appellant was never closer than ten feet away, and they were
never "in each other's face or anything like that." (Tr. Vol. I at 79.) Once appellant's voice
"began to be raised and [he] started to be a little bit more irritated," Walder "moved
further away and * * * threatened to [call] security and turned [his] back." (Tr. Vol. I at
79-80.)
{¶ 12} Walder then heard appellant state: "I have nothing to lose." Walder "turned
back around," at which time appellant struck him in the face, breaking his jaw. Walder
estimated that appellant ran ten feet across the room before striking him. Walder "started
gushing with blood." Miller "heard the impact" and looked into the room. (Tr. Vol. I at
77.) Walder testified that appellant then reached down and took his and Miller's jackets.
{¶ 13} After the incident, Miller accompanied Walder to the work truck and drove
Walder to Riverside Methodist Hospital. Walder's jaw was broken in two places, and an
artery was severed in the back of his neck. Walder underwent four hours of surgery, and
his jaw was wired shut for six weeks. While Walder was in the hospital, appellant phoned
him "demanding payment for his hours." (Tr. Vol. I at 95.) At trial, Walder identified
appellant as his assailant.
No. 16AP-893 4

{¶ 14} Walder denied ever threatening appellant or lunging toward him during the
incident. Walder stated that he "retreated and tried to continue to go back to work." (Tr.
Vol. I at 82-83.)
{¶ 15} Miller, age 26, is a manager of a bar, and during winter months he has
worked for Walder. In his employment with Walder, Miller worked on carpet cleaning
jobs with appellant "two or three times." (Tr. Vol. I at 108.)
{¶ 16} A week or two prior to the incident, Miller and appellant worked together
cleaning carpets at a hotel while Walder was out of town. After work, Miller gave
appellant a ride home, and Miller then drove to Walder's residence to return a work truck.
Walder had also instructed Miller to pay appellant, and Miller was going to pick up the
money at Walder's residence "to give to [appellant] for his work." (Tr. Vol. I at 122.)
Miller testified that he was unsuccessful in reaching appellant by phone and, therefore,
was "unable to get in contact with him" about the money. (Tr. Vol. I at 123.)
{¶ 17} Miller gave the following testimony regarding the events on February 22,
2016. On that date, he and Walder were on the job site approximately four or five hours
"cleaning all the hotel rooms on the fifth floor." (Tr. Vol. I at 125.) Miller was in a room
cleaning carpets when he "heard loud voices in the hallway." He walked out to the
hallway "to see what the confrontation was." The voices were getting louder, and Miller
observed Walder "trying to calm the situation" and to "quiet [appellant] down." (Tr. Vol. I
at 126.)
{¶ 18} Miller testified that appellant was "frustrated, I'm not sure if this was the
money situation or what, but just when he saw me he kind of turned toward me and
started hollering towards me." At the time, Walder was "trying to get us both away and
keep the area * * * quiet." (Tr. Vol. I at 128.) Walder asked Miller to return to the room
where he had been working.
{¶ 19} Miller "turned to head back into the room," and he "took maybe a couple
steps and heard probably the loudest pop [he had] ever heard." Miller looked over toward
Walder, who was "bleeding all over his hands and his jaw was sitting on his tongue inside
of his mouth." (Tr. Vol. I at 126.) Walder was "holding his jaw and turns towards me and
said, he just broke my jaw." (Tr. Vol. I at 131.)
No. 16AP-893 5

{¶ 20} Miller observed appellant backing away. As Miller assisted Walder to the
elevator, appellant was looking around; appellant then "bends down and grabs our
jackets." Miller testified he asked appellant for his jacket: "I was like, come on, can we
have our jackets back? And he looked at me and said come fight [me] for them." Miller
told appellant he was "here to work, not to fight." (Tr. Vol. I at 132.) Miller and Walder
entered the elevator and went downstairs to the work truck; Miller then drove Walder to
the hospital.
{¶ 21} On February 23, 2016, Columbus Police Officer Joseph Abdalla was
dispatched to the hospital to respond to a report of an assault. Officer Abdalla spoke with
Walder, who had been hospitalized for approximately 24 hours. Walder had "medical
hardware in his mouth," and he provided the officer with appellant's name. (Tr. Vol. I at
43.) Walder also informed the officer that a co-worker, Miller, had been present during
the incident.
{¶ 22} Appellant, age 26, testified on his own behalf. Appellant acknowledged
previously serving a four-year sentence for a felony burglary offense committed in 2009;
he also acknowledged a 2014 felony conviction for receiving stolen property.
{¶ 23} Appellant began working for Walder after appellant's father introduced
them. At the time of the incident, appellant had been cleaning carpets for Walder on a
part-time basis. The week prior to the incident, while Walder was out of town, appellant
had performed some work for which he had not yet received payment.
{¶ 24} On February 22, 2016, Walder contacted appellant via Facebook Messenger
about a carpet cleaning job. Appellant testified that when Walder "first contacted me * * *
I was kind of trying to find a few things out and he became real * * * belligerent and
disrespectful towards me. And at that point I just * * * pretty much told him * * * I would
just like to be paid and go our separate ways." (Tr. Vol. I at 170.)
{¶ 25} Appellant stated that his intention in going to the Hampton Inn that
morning was "[s]imply to go get paid * * * and leave." (Tr. Vol. I at 171.) Appellant
arrived at the hotel and observed Walder's work truck and hoses. He followed the hoses
up to the fifth floor. When he arrived, appellant observed Walder in a room performing
work; Miller was also cleaning rooms on the floor.
No. 16AP-893 6

{¶ 26} Appellant told Walder he did not come there to work, and that he was only
there to receive his paycheck. Appellant acknowledged raising his voice and getting into
an argument with Walder. Appellant "was under the impression that [Walder] had no
intentions of paying me." (Tr. Vol. I at 173-74.) At one point, appellant went over "to talk
to Miller because there was an issue about me using the phone all day the previous Friday
that me and him worked, and * * * we didn't come to any type of conclusion on that." (Tr.
Vol. I at 174.)
{¶ 27} Appellant was "kind of upset" and "disappointed" with Walder. (Tr. Vol. I at
175.) Appellant also testified he was "kind of nervous, anxious I would say a little * * *
confused" as to why Walder would call him to the site and not pay him. Appellant stated
that Walder's "shoulder was facing me maybe roughly five feet away." According to
appellant, Walder "turned and started walking, like, charging, not like - - kind of
aggressively turned and charged towards me. I don't want [to] say like he lunged or tried
to tackle me, but like in an aggressive manner and I swung and backed up and I just
continued backing away from him." (Tr. Vol. I at 176.)
{¶ 28} When asked what was going through his mind as Walder first approached,
appellant responded: "I did not know what he was going to do. I was nervous about the
situation. I mean, I was kind of scared, I wouldn't say I don't know how to defend myself,
but I was kind of scared, like, just walking towards me." (Tr. Vol. I at 179.) Appellant
testified that he threw the punch because "I just * * * felt unsafe, to defend myself." (Tr.
Vol. I at 180.)
{¶ 29} Around that time, Miller "came out of the room" he had been cleaning and
appellant "continued backing away from them." Walder and Miller "proceeded onto the
elevator," and appellant then "turned around and left as well." (Tr. Vol. I at 176.)
{¶ 30} On cross-examination, appellant acknowledged that, during his Facebook
Messenger interaction with Walder, he made a reference to Miller in which he stated: "I
made money last week on top of the money your bitch-ass employee has owed me since
Kentucky. You're lucky I didn't knock him out on the job because I'm really that type of
dude, Mark. I don't know why you want to see my true colors." (Tr. Vol. I at 194.)
Appellant also acknowledged stating about Miller: "I can get my money from him or put
No. 16AP-893 7

his ass to sleep." (Tr. Vol. I at 195.) Appellant denied being angry with Walder at the time
of the incident.
{¶ 31} Over the objection of defense counsel, plaintiff-appellee, the State of Ohio,
recalled Walder as a rebuttal witness. Following deliberations, the jury returned verdicts
finding appellant guilty of felonious assault, but not guilty of the robbery counts. By
judgment entry filed December 8, 2016, the trial court imposed a sentence of five years
incarceration, to be served concurrently with appellant's sentence in Franklin C.P. No.
15CR-2777.
{¶ 32} On appeal, appellant sets forth the following six assignments of error for
this court's review:
FIRST ASSIGNMENT OF ERROR: THE STATE'S USE OF
PEREMPTORY CHALLENGES TO EXCUSE JURORS
BECAUSE OF THEIR RACE VIOLATED BATSON V.
KENTUCKY AND DEPRIVED APPELLANT EQUAL
PROTECTION OF THE LAW.

SECOND ASSIGNMENT OF ERROR: APPELLANT WAS
DEPRIVED OF HIS RIGHT TO DUE PROCESS AND A FAIR
AND IMPARTIAL JURY WHEN THE TRIAL COURT
REFUSED TO EXCUSE FOR CAUSE A JUROR WHO
COULD NOT BE FAIR AND IMPARTIAL.

THIRD ASSIGNMENT OF ERROR: APPELLANT WAS
DENIED HIS RIGHTS TO A FAIR TRIAL, TO COUNSEL, TO
PRESENT A DEFENSE, AND TO DUE PROCESS
CONTRARY TO THE OHIO AND UNITED STATES
CONSTITUTIONS WHEN THE TRIAL COURT ORDERED
APPELLANT TO WEAR RESTRAINTS WITHOUT
ADEQUATE JUSTIFICATION.

FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT
ERRED AND DENIED APPELLANT DUE PROCESS AND
HIS RIGHT TO A FAIR TRIAL BY PERMITTING THE
STATE TO CALL THE ALLEGED VICTIM AS A REBUTTAL
WITNESS DESPITE ALREADY TESTIFYING DURING THE
STATE'S CASE-IN-CHIEF.

FIFTH ASSIGNMENT OF ERROR: APPELLANT WAS
DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
No. 16AP-893 8

TO THE UNITED STATES CONSTITUTION, AND SECTION
10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

SIXTH ASSIGNMENT OF ERROR: THE TRIAL COURT
VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND
A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF
CONVICTION AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS
UNDER THE UNITED STATES AND OHIO
CONSTITUTIONS.

{¶ 33} Under the first assignment of error, appellant contends the trial court erred
in rejecting defense counsel's objection to the state's use of peremptory challenges to
excuse two African-American jurors, asserting that the state's use of the challenges was in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, appellant points to the
fact that, at the conclusion of voir dire, the state used its first peremptory challenge on
Juror No. 2, S.M., and its fourth peremptory challenge on Juror No. 1, T.C. Appellant
maintains the evidence did not support the prosecutor's purported race-neutral
explanations.
{¶ 34} In State v. Murphy, 91 Ohio St.3d 516, 528 (2001), the Supreme Court of
Ohio discussed the test under Batson for determining whether a prosecutor's use of
peremptory challenges is racially motivated, holding in part:
The Equal Protection Clause of the Fourteenth Amendment
strictly prohibits a state actor from engaging in racial
discrimination in exercising peremptory challenges. Such
discrimination is grounds to reverse a conviction returned by
a jury tainted with such discrimination.

A court adjudicates a Batson claim in three steps. In step one,
the opponent of the peremptory challenge at issue must make
a prima facie case that the proponent was engaging in racial
discrimination. In step two, the proponent must come
forward with a race-neutral explanation for the strike. In step
three, the trial court must decide, on the basis of all the
circumstances, whether the opponent has proved racial
discrimination.

(Citations omitted.)

{¶ 35} As noted, appellant challenges the state's peremptory challenges as to two
prospective jurors, S.M. and T.C. With respect to S.M., the record indicates that, after the
No. 16AP-893 9

prosecutor questioned prospective jurors during voir dire, the prosecutor asked all of the
prospective jurors whether there was "anything that we talked about or caused you
concern that you think I might need to know before we impanel you as jurors." S.M.
raised her hand and indicated she had such a concern, but further stated she did not
"want to necessarily discuss it in front of everybody." (Voir Dire Tr. at 122.)
{¶ 36} Following a recess by the trial court, S.M. was questioned outside the
presence of the other prospective jurors. S.M. stated she had previously been "involved in
a domestic violence issue," and she was "pretty sure" that the prosecutor "was actually on
the case." (Voir Dire Tr. at 133.) S.M. stated to the prosecutor: "[Y]ou look familiar, but I
can't remember." S.M. explained that she was the defendant in the domestic relations
case, and that the case "started as a domestic violence and it was reduced to a
misdemeanor." (Voir Dire Tr. at 134.)
{¶ 37} The prosecutor, after obtaining information on the case outside the
presence of S.M., indicated to the trial court that the case "was a misdemeanor case filed
in Franklin County Municipal Court." (Voir Dire Tr. at 138.) The prosecutor represented
that the case "was not filed as a felony or even considered for a felony enhancement so I
would have never been the prosecutor on it." (Voir Dire Tr. at 138-39.) The prosecutor
further stated: "She's obviously confusing me with a city prosecutor." S.M. was then
called back, and the prosecutor informed S.M.: "I've looked up the case, it appears I was
not the prosecutor on that" case. S.M. responded: "Okay." (Voir Dire Tr. at 139.) The
prosecutor then asked S.M. whether there was anything about the way the prosecutor
handled the domestic relations case that would "leave a distaste in your mouth?" S.M.
responded: "Absolutely not, no." (Voir Dire Tr. at 141.)
{¶ 38} The prosecutor subsequently exercised peremptory challenges as to four
prospective jurors, including S.M and T.C. At that time, defense counsel raised a "Batson
argument" before the trial court, noting that "[T.C.] and also [S.M.] were African
American." (Voir Dire Tr. at 152-53.) The trial court then requested a response from the
prosecutor, who stated the following grounds for requesting the peremptory challenges:
[THE PROSECUTOR]: Well, Your Honor, the defense has to
put on prima [facie] evidence before I have to put on reasons
in response they're not [pretextual]. I don't think he's shown a
prima [facie] case. I did excuse two female white jurors as
well.
No. 16AP-893 10

But the reason why I thanked and excused [S.M.] was because
she was the defendant in a domestic violence case. Whether
she says she could be fair and impartial to the prosecution,
she thought I was the prosecutor and I don't know if she's
going to have any underlying bias against prosecutors,
certainly she thought I was the one who prosecuted that case.
So that's the sole reason for striking her.

The sole reason for striking [T.C.] is because he's young
certainly and impressionable at this time regardless of his
race. I'm afraid that with his youth he will not have much to
add to the deliberations. In fact, I was watching him
throughout my voir dire and he seems to just follow along
with the crowd in dealing with the one-witness rule in
particular and the knowingly and purposely. I didn't get a
good satisfaction that he was, in fact, grasping these concepts
which I deem to be very important to my case. Thank you,
Your Honor.

(Voir Dire Tr. at 153-54.)

{¶ 39} Following the prosecutor's explanation, the trial court inquired whether
defense counsel had any further argument. Defense counsel stated: "No response, Your
Honor." (Voir Dire Tr. at 154.) The trial court overruled the Batson challenge, stating on
the record: "With respect to the Batson challenge regarding [T.C.] the defense did not set
forth any evidence or any facts that would establish prima facie case of discrimination
with respect to peremptory challenges and the state offered a [neutral] explanation for its
exercise of its peremptory challenge to both [S.M.] as well as to [T.C.]." (Voir Dire Tr. at
154-55.)
{¶ 40} Thus, with respect to the state's peremptory challenge involving S.M., the
record indicates the prosecutor expressed concern that the juror mistakenly believed the
prosecutor had prosecuted a previous domestic relations case in which S.M. was the
defendant; the prosecutor was also concerned that the prospective juror may have an
"underlying bias against prosecutors" in light of that prior proceeding. As noted, defense
counsel did not challenge the explanation. (Voir Dire Tr. at 153.)
{¶ 41} On review, the record supports the prosecutor's explanation that S.M. was
apparently mistaken about the prosecutor's purported involvement in a domestic
relations case in which S.M. was the defendant. Although the prosecutor informed S.M.
No. 16AP-893 11

that she was mistaken, the prosecutor could have reasonably been concerned about the
potential for bias against the prosecution in light of this prospective juror's past personal
experience as a defendant, and we find no error with the trial court's determination that
the prosecutor offered a race-neutral justification for the peremptory challenge. See State
v. McElrath, 114 Ohio App.3d 516, 522 (9th Dist.1996) (prosecutor's concern that
prospective juror "may have had a negative experience with the prosecutor's office, and
might therefore have a bias against the prosecution," constituted a "race neutral"
explanation). Accordingly, the trial court did not err in denying appellant's Batson
challenge as to this prospective juror.
{¶ 42} Appellant also challenges the prosecutor's explanation for striking
prospective juror T.C. on the basis of the juror's age (or youth). Ohio courts have held,
however, that age is a race-neutral factor in the context of a Batson challenge. See State v.
Robinson, 5th Dist. No. 09 CAA 03 0029, 2009-Ohio-5917, ¶ 33 ("the State offered a race-
neutral explanation for its use of a peremptory challenge for this juror, stating that it had
concerns about the juror's age, the juror being only twenty (20) years old, and how his age
may affect his thinking in this particular case"); State v. Curtis, 3d Dist. No. 9-02-11,
2002-Ohio-5409, ¶ 49 (prosecutor's proffered explanation that he struck juror "because
of his young age, he was single, and his minimal ties to the community" was race neutral
and satisfied the prosecution's burden of articulating a non-discriminatory reason for
peremptory strike).
{¶ 43} We note that federal courts have similarly recognized age as a "legitimate"
reason for peremptorily striking potential jurors. United States v. Clemons, 941 F.2d 321,
325 (5th Cir.1991). See also Howard v. Moore, 131 F.3d 399, 408 (4th Cir.1997) ("age is
an acceptable race-neutral factor" for peremptory challenge); United States v. Williams,
214 Fed.Appx. 935, 936 (11th Cir.2007) (trial court did not err in finding that prosecutor's
reason for striking prospective juror because of "her youth and lack of worldly experience"
constituted a legitimate race-neutral explanation); United States v. Alston, 188 Fed.Appx.
186, 188 (4th Cir.2006) ("age is an acceptable race-neutral explanation").
{¶ 44} Here, the prosecutor offered a race-neutral explanation for the peremptory
challenge, citing the youth of the prospective juror, and there is nothing to suggest that
the prosecutor's explanation was pretextual. The trial court determined there was no
No. 16AP-893 12

indication of purposeful discrimination, and we find no basis in the record to disturb that
determination. We therefore find no error with the trial court's decision to overrule the
Batson challenge as to this prospective juror.
{¶ 45} Appellant's first assignment of error is not well-taken and is overruled.
{¶ 46} Under the second assignment of error, appellant contends the trial court
erred in refusing to excuse a prospective juror for cause who could not be fair and
impartial. Specifically, appellant argues the trial court should have excused prospective
Juror No. 12, C.M., who indicated she had previously been employed in law enforcement.
Appellant argues that answers provided by C.M. during voir dire indicated she could not
render a verdict based on the evidence presented, thereby requiring defense counsel to
exercise a peremptory challenge to excuse her.
{¶ 47} By way of background, C.M. stated during voir dire that she was "a retired
executive secretary for the State Highway Patrol and I've worked investigations so I have
the law enforcement side." When asked by the prosecutor whether she "[w]ould * * * be
able to set that prior experience aside in this particular case," C.M. initially responded: "I
don't think so." (Voir Dire Tr. at 23.) When asked again by the prosecutor whether she
would have difficulty setting aside her experience and background, C.M. stated: "I think
what I would be looking at, taking that experience and looking at both sides, you know,
your side, his side." (Voir Dire Tr. at 24.) Later during voir dire, the prosecutor revisited
the issue of this prospective juror's background with the State Highway Patrol, and
inquired of C.M. whether she could "decide this case fairly and impartially?" C.M.
responded: "Yes." (Voir Dire Tr. at 79.)
{¶ 48} At the close of voir dire, defense counsel requested the trial court excuse
C.M. for cause.1 In response, the prosecutor stated: "I followed up with her at the end of
the questioning and said, would your relationship with the Ohio State Patrol officers
impact your ability to decide this case fairly and impartially and she said no she didn't
think that it would." (Voir Dire Tr. at 148-49.) Defense counsel indicated he did not
"recall hearing that she could set those aside." (Voir Dire Tr. at 149.) The prosecutor then
reiterated that the prospective juror "did say, yes, she would be able to decide the facts of

1 The trial court initially indicated it would grant the request to excuse Juror No. 12, but after the prosecutor

noted that Juror No. 12 was "the highway patrol one," the trial court acknowledged "confusing" this juror
with another prospective juror. (Voir Dire Tr. at 148-49.)
No. 16AP-893 13

the case and apply the fact[s] and apply the law." (Voir Dire Tr. at 150.) The trial court
ruled that it would not dismiss C.M. for cause, and defense counsel subsequently utilized
a peremptory challenge to excuse her.
{¶ 49} R.C. 2945.25 states in part as follows:
A person called as a juror in a criminal case may be challenged
for the following causes:

***

(B) That he is possessed of a state of mind evincing enmity or
bias toward the defendant or the state; but no person
summoned as a juror shall be disqualified by reason of a
previously formed or expressed opinion with reference to the
guilt or innocence of the accused, if the court is satisfied, from
examination of the juror or from other evidence, that he will
render an impartial verdict according to the law and the
evidence submitted to the jury at the trial.

{¶ 50} Under Ohio law, "[a] prospective juror may be challenged for cause if there
is a demonstration of bias toward the defendant." State v. Mulvey, 7th Dist. No. 08 BE
31, 2009-Ohio-6756, ¶ 21, citing R.C. 2945.25(B); Crim.R. 24(C)(9). Further, "[a] trial
court has the broad discretion to determine whether a juror has the ability to be
impartial," and the court "may rely on the juror's testimony in order to determine that
juror's impartiality." Id. In instances in which a prospective juror is challenged for bias,
"a reviewing court must pay deference to the trial court, who was able to see and hear the
prospective juror and the exchanges during voir dire." Id. Finally, "[a] trial court's ruling
on a challenge for cause will not be disturbed by a reviewing court 'unless it is manifestly
arbitrary and unsupported by substantial testimony, so as to constitute an abuse of
discretion.' " Id. at ¶ 22, quoting State v. Williams, 79 Ohio St.3d 1, 8 (1997).
{¶ 51} On review, we find no abuse of discretion by the trial court in failing to
excuse C.M. for cause. As observed by appellant, C.M.'s initial responses to inquiries by
the prosecutor raised questions about her ability to set aside her background and
experience in law enforcement. However, when later questioned about whether she could
be fair and impartial, C.M. responded affirmatively. Here, the trial court had the
opportunity to observe and determine whether the prospective juror was sufficiently
rehabilitated by the follow-up questioning by the prosecutor. See State v. Dye, 8th Dist.
No. 16AP-893 14

No. 103907, 2016-Ohio-8044, ¶ 28 ("although the juror's initial statements appeared to
cast some doubt on her impartiality, the juror's qualification to serve as [a] fair and
impartial juror was sufficiently rehabilitated upon the trial court's further examination").
Further, the trial court was entitled to accept the assurances of the prospective juror that
she would be fair and impartial. State v. Jones, 91 Ohio St.3d 335, 338 (2001).
{¶ 52} Appellant's second assignment of error is overruled.
{¶ 53} Under the third assignment of error, appellant contends he was denied the
right to a fair trial where the trial court ordered him to wear leg restraints during trial.
Appellant argues there was no evidence he needed to be restrained, and cites the fact
there was no hearing on the record justifying the need for restraints. According to
appellant, the leg irons inhibited his ability to concentrate on the evidence.
{¶ 54} In State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 16, this court
noted that "[t]he usual practice * * * is for a defendant to appear in court free of shackles."
However, "it is widely accepted that a prisoner may be shackled in some circumstances."
Id. Further, "[t]he decision to impose such restraints is left to the sound discretion of the
trial court, [which] must exercise its own discretion and not leave the issue up to security
personnel." Id.
{¶ 55} A review of the record indicates that, at the start of trial, defense counsel
made the following inquiry to the court: "Your Honor, before we bring the jury in, I
understand about the shackles on his ankles, but if we could remove the handcuffs from
him, if that would be permissible?" The trial court responded: "Yes. I will ask that those
be removed." (Tr. Vol. I at 11.)
{¶ 56} Later, prior to appellant taking the witness stand (and outside the presence
of jurors), defense counsel inquired as to how the trial court "wanted to proceed with his
taking the witness stand, if [the prosecutor is] going to rest, he has leg irons on. I know
we have to have a deputy go over there with him." The trial court responded: "What I
would do is move him over there before you rest, like probably now, and then bring [the
jury] in and let you rest and do the stipulation and will just let you rest and then we'll go
from there." (Tr. Vol. I at 161.) A short time later, the trial court stated: "All right. So if
you want to move Mr. Mendoza, come on over and just be seated, sir." (Tr. Vol. I at 164.)
After appellant concluded his testimony, the trial court dismissed the jury for a recess and
No. 16AP-893 15

told appellant: "Mr. Mendoza, you can go ahead and go back to the table." (Tr. Vol. I at
222.)
{¶ 57} As noted, appellant contends the trial court rendered its decision to impose
shackles without first conducting a hearing. This court, however, has previously observed
that while "the Supreme Court of Ohio encourages trial courts to hold a hearing on the
matter * * * the court has never required a hearing." Boone at ¶ 17. Rather, " '[w]here the
facts and circumstances surrounding a defendant illustrate a compelling need to impose
exceptional security procedures, the trial court's exercise of discretion in this regard
should not be disturbed unless its actions are not supported by the evidence before it.' "
Id., quoting State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 82. Accordingly,
"there is no per se error because the trial court did not hold a hearing to address its
security concerns." Id.
{¶ 58} In the present case, even assuming the trial court abused its discretion in
ordering shackles, any such error is harmless as appellant cannot demonstrate prejudice
where the record fails to suggest the jury observed the shackles or that the wearing of
shackles affected the outcome of the trial. State v. Neyland, 139 Ohio St.3d 353, 2014-
Ohio-1914. See also State v. Chester, 10th Dist. No. 08AP-1, 2008-Ohio-6679, ¶ 12 (any
error by trial court in ordering shackles harmless where "no evidence that the jury ever
saw appellant wearing the shackles"). As reflected in the transcript portions cited above,
the record indicates the trial court took precautions to ensure appellant was taken to the
witness stand outside the presence of the jury, and there is simply no evidence that any
juror observed the leg shackles during the trial. Nor does the record on appeal suggest the
leg shackles inhibited appellant's ability to communicate with counsel or to testify.
Chester at ¶ 14 (noting the record was "devoid of any suggestion that the shackles
prevented appellant from conferring with his counsel with respect to his own defense").
{¶ 59} Accordingly, appellant's third assignment of error is not well-taken and is
overruled.
{¶ 60} Under the fourth assignment of error, appellant contends the trial court
erred in allowing the state to call the alleged victim as a rebuttal witness despite already
having testified during the state's case-in-chief. According to appellant, Walder's rebuttal
testimony merely repeated his previous testimony from the state's case-in-chief and did
No. 16AP-893 16

not offer anything new of substance, making it improper. In response, the state argues
appellant acknowledges new information was elicited on rebuttal, and that clarifying
details were elicited.
{¶ 61} The record indicates that, following appellant's testimony, the prosecutor
sought to call Walder as a rebuttal witness. Defense counsel objected on the basis that the
state was "recalling a witness who has previously testified." The prosecutor responded:
"Your Honor. This is rebuttal and there is some issue that came out in [appellant's]
testimony that are directly rebutted by * * * Walder and he was not in the courtroom
when [appellant] testified." The trial court permitted the witness to take the stand, with
the admonition that "[t]he testimony will be limited, obviously, to rebuttal only." (Tr. Vol.
I at 238.)
{¶ 62} During rebuttal, questions propounded by the prosecutor to Walder
included whether he had received any advance notice that appellant would be at the hotel,
apart from "the kind of conversation that we've already been through." (Tr. Vol. I at 240.)
The prosecutor also asked Walder if he ever "charge[d] towards [appellant] in a
threatening manner." (Tr. Vol. I at 242.) In addition, the prosecutor questioned Walder
about the phone call he received from appellant while in the hospital. When asked about
the phone conversation, Walder testified: "I could not really speak, my mother took the
phone and explained to him the damage that he inflicted and he still demanded money
and she hung up." (Tr. Vol. I at 247.)
{¶ 63} The Supreme Court has held that "[r]ebutting evidence is that given to
explain, refute, or disprove new facts introduced into evidence by the adverse party; it
becomes relevant only to challenge the evidence offered by the opponent, and its scope is
limited by such evidence." State v. McNeill, 83 Ohio St.3d 438, 446 (1998). Further, "[i]t
is within the trial court's discretion to determine what evidence is admissible as proper
rebuttal." Id.
{¶ 64} As noted, appellant contends Walder's rebuttal testimony simply repeated
his previous testimony, including prior testimony by Walder that he was uncertain
whether appellant would show up at the hotel, and the fact that Walder informed
appellant he did not have cash to pay him at the time. Appellant contends the only new
No. 16AP-893 17

information involved Walder's testimony that his mother spoke to appellant on the phone
while Walder was in the hospital.
{¶ 65} In State v. Sandlin, 6th Dist. No. WD-83-96 (June 22, 1984), the appellant
made a similar contention that the trial court erred in allowing the state to "repeat its case
in chief during rebuttal" over the objection of defense counsel. In addressing this
contention, the court in Sandlin held in part:
Appellant correctly cites the case of Morris v. Faurot (1871), 21
Ohio St. 155, for the proposition that the practice of recalling a
witness to repeat previously given testimony is not proper
rebuttal. That opinion further determines, however, that
when, from the nature of the case, it is next to impossible to
get to the new facts without some repetition of a witness's
former testimony:

"* * * [S]ome latitude must be allowed for the exercise of
discretion. Indeed, the exigencies of each particular case must
go far in controlling the discretion of the court * * *." Id. at
161.

{¶ 66} Under the facts in Sandlin, the reviewing court found it "evident" that the
victim was recalled in order to rebut appellant's claim that appellant had acted in self-
defense in stabbing the victim. Id. The court in Sandlin determined that "[r]epetition of
some of the victim's testimony given in the state's case in chief was, therefore, necessary
to lay the foundation upon which rebuttal would be based." Id.
{¶ 67} We note that other jurisdictions have similarly recognized the reality, as
observed by the court in Sandlin, that it is "next to impossible" in certain circumstances to
get to new facts "without some repetition of a witness's former testimony." Id., citing
Morris v. Faurot, 21 Ohio St. 155 (1871). See, e.g., State v. Simmons, Wash.App. No.
18020-4-III (Oct. 28, 1999) ("true rebuttal evidence will, in some degree, overlap or
coalesce with the evidence in chief"); People v. Figgures, 451 Mich. 390, 399 (1996) ("As
long as evidence is responsive to material presented by the defense, it is properly
classified as rebuttal, even if it overlaps evidence admitted in the prosecutor's case in
chief."); State v. Simonson, 100 N.M. 297, 302 (1983) (noting difficulty in "[a]scertaining
whether the rebuttal evidence is in response to new matters established by the defense,"
and that "[f]requently true rebuttal evidence, in some degree, will overlap and coincide
with the evidence in the State's case-in-chief").
No. 16AP-893 18

{¶ 68} In the present case, while Walder's testimony included some matters
covered during the state's case-in-chief, there was also new information presented, as well
as clarifying information that was arguably proper rebuttal evidence following appellant's
testimony claiming self-defense. More specifically, in response to the prosecutor's inquiry
about the phone call at the hospital, Walder revealed for the first time that his mother
took the call. Further, the prosecutor questioned Walder about appellant's testimony that
Walder turned toward appellant in a threatening manner. Walder also was questioned
about appellant's claim that Walder charged at him, and Walder responded: "I never
moved from the position I was in from beginning to end." (Tr. Vol. I at 242.) An
additional inquiry by the prosecutor went to the issue of whether Walder did anything to
make appellant "feel uncomfortable or unsafe." (Tr. Vol. I at 244.) Appellant had
previously testified that he was "nervous" and "kind of scared" by Walder's conduct. (Tr.
Vol. I at 179.) On review, despite the fact there was some repetition in Walder's
testimony, we do not find the trial court's admission of Walder's rebuttal testimony
constituted an abuse of discretion.
{¶ 69} Accordingly, appellant's fourth assignment of error is overruled.
{¶ 70} Under the fifth assignment of error, appellant asserts he was deprived of
effective assistance of counsel. Specifically, appellant contends his trial counsel was
ineffective in failing to: (1) offer any argument in support of the Batson challenge,
(2) object to, or request a hearing on, the use of leg irons, (3) object to or move to strike
the state's rebuttal evidence, (4) object to or move to strike testimony regarding appellant
not filing a police report, and (5) request an instruction for aggravated assault as an
inferior degree offense of felonious assault. Finally, appellant argues that the cumulative
effect of counsel's errors resulted in the denial of a fair trial.
{¶ 71} The Supreme Court has adopted the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), for resolving claims of ineffective assistance of counsel.
State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this test, "[c]ounsel's performance
will not be deemed ineffective unless and until counsel's performance is proved to have
fallen below an objective standard of reasonable representation and, in addition,
prejudice arises from counsel's performance." Id. at paragraph two of the syllabus. In
order to demonstrate prejudice, "the defendant must prove that there exists a reasonable
No. 16AP-893 19

probability that, were it not for counsel's errors, the result of the trial would have been
different." Id. at paragraph three of the syllabus.
{¶ 72} Three of appellant's claims of ineffective assistance of counsel involve issues
raised in earlier assignments of error, i.e., defense counsel's Batson challenge, the failure
of the trial court to hold a hearing on the use of leg irons, and the trial court's decision to
permit rebuttal testimony. As to the Batson challenge, appellant argues that trial counsel
was ineffective in failing to respond to the explanations provided by the prosecutor for the
peremptory challenges. We have previously determined, however, that the trial court did
not err in overruling defense counsel's Batson challenge and, based on the record
presented, appellant cannot show prejudice as a result of counsel's purported failure to
more vigorously argue the Batson challenge.
{¶ 73} We have also determined, in addressing the third assignment of error, that
appellant was unable to show prejudice as a result of the trial court's ruling with respect to
the use of leg irons where the record failed to show the jury observed the shackles or that
the court's ruling otherwise affected the outcome of the proceedings. Accordingly,
appellant cannot demonstrate prejudice based on a claim of ineffective assistance of
counsel with respect to counsel's failure to request a hearing on that issue. See State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 340 (claim that counsel was ineffective by
failing to request hearing on necessity of wearing shackles lacked merit where nothing in
the record indicated that any restraint used was visible to jury); State v. Ayers, 12th Dist.
No. CA2010-12-119, 2011-Ohio-4719, ¶ 61 (rejecting claim of ineffective assistance of
counsel resulting from trial counsel's failure to object to shackles as appellant was unable
to establish prejudice where jury was unable to see him in shackles).
{¶ 74} We have also determined, in addressing the fourth assignment of error, that
the trial court did not err in permitting the rebuttal testimony of Walder. Further, as
noted under the facts, defense counsel did raise an objection to Walder being called as a
rebuttal witness. Accordingly, appellant cannot demonstrate either deficient performance
or prejudice.
{¶ 75} Appellant also contends his trial counsel was ineffective in failing to object
to the prosecutor's inquiry of Walder as to whether appellant ever filed a police report
regarding the incident. Appellant argues that the issue of whether or not he complained
No. 16AP-893 20

about Walder's conduct was irrelevant as to whether he knowingly assaulted Walder.
According to appellant, the probative value of this evidence was outweighed by the danger
of unfair prejudice.
{¶ 76} In response, the state argues appellant cites no authority for the proposition
that the testimony at issue was inadmissible. The state further argues that such testimony
was relevant, i.e., the fact appellant never filed a police report tended to discredit his claim
he was acting in self-defense. In support, the state cites Baron v. Andolsek, 11th Dist. No.
2003-L-005, 2004-Ohio-1159, ¶ 30 (deeming as relevant fact that parties "never
memorialized their statement in writing nor filed a police report regarding the purported
assault of which they were victims").
{¶ 77} On review, we agree with the state that appellant has failed to demonstrate
the testimony was inadmissible as not relevant. See, e.g., State v. Lakes, 2d Dist. No.
21490, 2007-Ohio-325, ¶ 19 (finding relevant the fact that the defendant contended he
killed victim in self-defense, yet ran from the scene of the shooting and "never reported
the alleged robbery to the police"); State v. Sullivan, 8th Dist. No. 66831 (Feb. 2, 1995)
(noting that, while appellant claimed self-defense, he "never contacted the police to report
this incident"). Here, appellant cannot show that an objection to the testimony would
have been sustained. Moreover, the record in this case does not establish a reasonable
probability that, had an objection been made and sustained, the result of the proceeding
would have been different.
{¶ 78} Appellant also claims his trial counsel was ineffective in failing to request an
instruction for aggravated assault as an inferior degree offense of felonious assault.
Appellant contends there was evidence of serious provocation on the part of Walder
sufficient to allow the jury to reject felonious assault and to find him guilty of aggravated
assault.
{¶ 79} In response, the state argues that such an instruction was not warranted as
appellant never admitted to being under a sudden passion or fit of rage (as required for
aggravated assault); further, the state maintains, the request for an instruction on
aggravated assault would have contradicted appellant's claim that he was just trying to
defend himself, i.e., acting out of self-defense.
No. 16AP-893 21

{¶ 80} Under Ohio law, "a criminal defendant is entitled to an inferior-degree-
offense instruction 'when the evidence presented at trial would reasonably support both
an acquittal on the charged [offense] and a conviction for [the inferior-degree offense].' "
State v. Moore, 4th Dist. No. 15CA3717, 2016-Ohio-8274, ¶ 13, quoting State v. Shane, 63
Ohio St.3d 630, 632 (1992).
{¶ 81} As noted, appellant was convicted of felonious assault, and Ohio courts have
recognized that the crime of aggravated assault "is an inferior degree of felonious assault."
Id. at ¶ 16, citing State v. Deem, 40 Ohio St.3d 205, 210-11 (1988). Specifically, "[t]he two
offenses are identical, except aggravated assault contains serious provocation as a
mitigating factor." Id. Accordingly, "in a trial for felonious assault, a trial court must give
the jury an aggravated assault instruction if the defendant presents sufficient evidence of
serious provocation such that a jury could both reasonably acquit the defendant of
felonious assault and convict the defendant of aggravated assault." Id., citing State v.
Mack, 82 Ohio St.3d 198, 200 (1998).
{¶ 82} Serious provocation under Ohio's aggravated assault statute (R.C. 2903.12)
"means provocation 'reasonably sufficient to bring on extreme stress and * * * reasonably
sufficient to incite or to arouse the defendant into using deadly force.' " State v. Saur,
10th Dist. No. 10AP-1195, 2013-Ohio-1674, ¶ 31, quoting Deem at paragraph five of the
syllabus. Further, "[t]he provocation must be 'sufficient to arouse the passions of an
ordinary person beyond the power of his or her control.' " Id., quoting Shane at 635. In
order to determine whether a defendant has presented "sufficient evidence to warrant an
instruction on the inferior offense of aggravated assault, 'an objective standard must be
applied to determine whether the alleged provocation is reasonably sufficient to bring on
a sudden passion or fit of rage.' " Id., quoting Mack at 201. If the objective standard is
met, "the inquiry shifts to a subjective standard, to determine whether the defendant in
the particular case ' "actually was under the influence of sudden passion or in a sudden fit
of rage." ' " Id., quoting Mack at 201, quoting Shane at 634-35.
{¶ 83} In the present case, we agree with the state's contention that the facts of this
case did not warrant an instruction on the inferior offense, as the evidence fails to indicate
appellant was under a sudden passion or fit of rage. As noted under the facts, appellant
testified as to his state of mind during the events at issue. Specifically, appellant stated he
No. 16AP-893 22

was "nervous about the situation," and "kind of scared." (Tr. Vol. I at 179.) Appellant,
who denied being angry with Walder at the time of the incident, further stated he threw
the punch because he just "felt unsafe, to defend myself." (Tr. Vol. I at 180.) Here, based
on the record presented, appellant cannot show that a request for an instruction on the
inferior degree offense would have been successful. See State v. Ratcliff, 10th Dist. No.
01AP-1349, 2002-Ohio-3727, ¶ 56 (evidence insufficient for the trier of fact to find that
appellant acted under the influence of sudden passion or fit of rage where appellant
testified that he was "scared" and that he struck at the victim with a knife out of fear for
his safety); State v. Poe, 4th Dist. No. 00 CA 09 (Oct. 6, 2000) ("Neither appellant's
evidence that he was afraid because he observed the victim with a hammer in his hand
nor his evidence that the victim stated 'come on' sufficiently demonstrates serious
provocation.").
{¶ 84} Furthermore, courts have held that "the failure to request an instruction on
an offense of an inferior degree can be a matter of trial strategy." State v. Levonyak, 7th
Dist. No. 05 MA 227, 2007-Ohio-5044, ¶ 19, citing State v. Walker, 4th Dist. No.
99CA2494 (June 26, 2000). Specifically, "[w]hen a defendant puts on a defense of self-
defense, an instruction on the inferior degree offense could have been perceived by the
jury as contradictory to the self-defense theory." Id. In this respect, courts have observed
that "[i]t could confuse the jury to argue that defendant acted in fear for his life but also
was provoked and acted in a fit of rage." Id. Accordingly, "it is a trial strategy for counsel
to choose to go solely with the self-defense theory and not request an inferior degree
offense," and "[t]rial strategies, even debatable ones, do not constitute ineffective
assistance of counsel." Id.
{¶ 85} Based on the record before this court, appellant has failed to demonstrate
deficient performance as a result of trial counsel's decision not to request an instruction
on the inferior degree offense. See State v. Sanders, 9th Dist. No. 19783 (May 17, 2000)
("Since Defendant repeatedly stated that she was not mad, angry, or upset with the victim,
but rather that she feared for her own safety, it was reasonable under the facts presented
at trial for Defendant's counsel to pursue a self-defense trial strategy to seek an acquittal
and not request an instruction on an inferior degree offense.").
No. 16AP-893 23

{¶ 86} Finally, appellant contends the cumulative effect of defense counsel's errors
resulted in the denial of a fair trial. In order to show cumulative error, however, there
must be a showing of multiple errors to cumulate, and "[w]here no individual, prejudicial
error has been shown, there can be no cumulative error." State v. Jones, 2d Dist. No.
20349, 2005-Ohio-1208, ¶ 66.
{¶ 87} Appellant's fifth assignment of error is not well-taken and is overruled.
{¶ 88} Under the sixth assignment of error, appellant asserts his conviction for
felonious assault was against the manifest weight of the evidence. Appellant maintains
the trier of fact should have found credible his testimony that Walder was the aggressor.
{¶ 89} In considering a claim that a conviction is against the manifest weight of the
evidence, a reviewing court "weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175 (1983). Further, "[t]he discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction." Id.
{¶ 90} R.C. 2903.11 sets forth the offense of felonious assault, and R.C.
2903.11(A)(1) provides in part that "[n]o person shall knowingly * * * [c]ause serious
physical harm to another." Under Ohio law, self-defense is an affirmative defense, which
a defendant is required to prove by a preponderance of the evidence. State v. Smith, 10th
Dist. No. 04AP-189, 2004-Ohio-6608, ¶ 16. In order to establish self-defense involving
non-deadly force, a defendant must prove: "(1) he was not at fault in creating the situation
that gave rise to the affray, (2) he 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." State v. DiFrancesca, 10th Dist. No. 10AP-340, 2011-Ohio-3087,
¶ 33, citing State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, ¶ 26.
{¶ 91} On review of the record, we are unable to conclude the jury clearly lost its
way and created a manifest miscarriage of justice in rejecting appellant's self-defense
theory and finding him guilty of felonious assault. As noted, appellant relies on his own
No. 16AP-893 24

testimony that Walder was the aggressor, and that Walder was approaching him at the
time he threw the punch that broke Walder's jaw in two places. The jury, however, was
not required to believe appellant's version of the events, especially in light of the
conflicting testimony. See, e.g., State v. Andrews, 9th Dist. No. 25114, 2010-Ohio-6126,
¶ 23 (faced with conflicting evidence, jury was not required to believe appellant's version
of events that he acted in self-defense when he inflicted injuries to victim); State v. Socha,
8th Dist. No. 76913 (May 10, 2001) ("Although defendant's testimony supported a claim
of self-defense, the jury was not required to accept as true his version.").
{¶ 92} Here, the jury heard Walder's testimony that appellant came to the job site
demanding payment for previous work he had performed. Walder testified he explained
to appellant he did not have the money, and that appellant would have to wait until the
end of the work day to be paid. Appellant became belligerent, and Walder asked him to
leave to avoid disturbing guests at the hotel. According to Walder, his back was turned to
appellant when he heard appellant state that he had "nothing to lose." When Walder
turned back around, appellant struck Walder in the jaw, causing serious physical harm.
{¶ 93} At trial, Miller provided corroborating testimony as to Walder's account.
Miller testified that appellant showed up at the job site and appeared "frustrated." At one
point, appellant "started hollering" at Miller. Miller testified that Walder was attempting
to keep the area quiet and calm down the situation. As Miller began to return to work, he
heard a loud "pop," and then observed Walder bleeding. The jury also heard testimony
that appellant had threatened violence against Miller via Facebook Messenger earlier that
day because he had not yet been paid for prior work.
{¶ 94} On review, the jury verdict finding appellant guilty of felonious assault was
not against the manifest weight of the evidence. Accordingly, appellant's sixth assignment
of error is overruled.
{¶ 95} Based on the foregoing, appellant's six assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.

SADLER and LUPER SCHUSTER, JJ., concur.

_____________________