State v. Harmon

[Cite as State v. Harmon, 2020-Ohio-590.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 18AP-965
v. : (C.P.C. No. 17CR-4910)

Tony L. Harmon, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on February 20, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.

On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, for
appellant.

APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Tony L. Harmon, appeals from the judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of attempted murder, felonious assault, and kidnapping
and a trial court judgment finding him guilty of the specifications associated with those
charges. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Harmon was indicted in September 2017 on charges of attempted murder,
felonious assault, and kidnapping, with a repeat violent offender specification on each
charge. The charges arose from an incident that occurred at Harmon's apartment on
June 23, 2017, between Harmon and Lavandon A. Smith. A jury trial was conducted on the
charges in September 2018.
No. 18AP-965 2

{¶ 3} At trial, Smith testified he knew Harmon through Harmon's brother, whom
Smith had been friends with since childhood. Smith would occasionally socialize with
Harmon, hanging out, playing video games, and going to bars together. A month or two
prior to the incident, Smith loaned $400 to Harmon so he could pay rent. On cross-
examination, Smith denied selling drugs and denied giving Harmon drugs to sell as part of
the loan. Smith testified he loaned the money to Harmon on a Tuesday and expected to be
repaid on Friday of the same week. Smith stated that when the date for repayment arrived,
Harmon told him he had gambled the money away at a casino in an attempt to double it.
Smith indicated he was sad that Harmon could not repay him on time but denied being
upset with Harmon or arguing with him.
{¶ 4} Smith testified Harmon texted him on June 23, 2017, indicating he should
come over to Harmon's apartment so Harmon could repay the loan. Harmon let Smith into
the apartment and shut the door, then indicated he was getting his wallet and went to a
coffee table in the living room. Smith testified he was looking at his phone and not paying
attention when Harmon suddenly struck him in the abdomen. After Harmon struck him
again, Smith realized Harmon was stabbing him. Harmon stabbed Smith multiple times in
the shoulder, hands and arms, abdomen, and chest. Smith was standing near the door to
the apartment when this occurred; he opened the door and tried to flee. Smith testified that
when he was halfway out the door, Harmon put his body against the door and grabbed
Smith's arm, trapping Smith's left side in the apartment and preventing him from leaving.
Smith was ultimately able to force his way out of the apartment. Smith testified he dropped
his phone in the apartment and lost his left shoe in the struggle. He fled the apartment and
met a maintenance worker for the apartment complex, who helped him to the complex
rental office. The maintenance worker and the office manager locked the doors to the rental
office and called police. Smith claimed that while waiting for police to arrive, he saw
Harmon drive away from the apartment complex.
{¶ 5} Smith testified he held a concealed-carry weapon permit and carried a gun in
his waistband most of the time for protection. However, Smith stated he was not carrying
his gun when he entered Harmon's apartment on June 23, 2017, asserting he did not feel
the need to carry it and left it in his vehicle because he considered Harmon family. Smith
No. 18AP-965 3

claimed he did not threaten Harmon prior to the stabbing. Smith testified his injuries
required major surgery, including removal of a portion of his colon.
{¶ 6} The maintenance worker who helped Smith to the apartment complex office
and the apartment complex office manager both testified about the assistance they
provided to Smith. Both testified they did not see any weapons on Smith while they were
aiding him. Columbus Police Officer Adam Callender, who responded to the emergency call
along with his partner, testified that Smith and the manager of the apartment complex met
them near the leasing office. Smith had wounds to his hands and abdomen. Officer
Callender testified he did not see any weapons on Smith. After Smith was transported for
medical treatment, Officer Callender and his partner went to Harmon's apartment; no one
was present and they secured the scene. Columbus Police Detective Lisa Swisher from the
crime scene search unit testified that a box cutter was recovered from Harmon's apartment.
Smith's left sandal was also located in Harmon's apartment. At the close of the
prosecution's presentation, Harmon's trial counsel moved for acquittal under Crim.R. 29.
The trial court denied the motion.
{¶ 7} Harmon then testified on his own behalf. He stated he was friends with
Smith, whom he knew through his brother. Harmon testified he and Smith lived in the
same apartment complex and he had spent time at Smith's apartment. Harmon claimed
he had seen Smith with a handgun and was aware Smith usually carried a handgun.
Harmon also testified he had purchased marijuana from Smith on multiple occasions.
{¶ 8} Harmon stated that, approximately one month before the incident, Smith
loaned him $200 in cash and gave him an ounce of marijuana to sell. Harmon stated Smith
instructed him to sell the marijuana for $320 and give $200 of that profit back to Smith.
Thus, Smith indicated Harmon owed him a total of $400. Harmon stated the loan was
made on a Monday or Tuesday, and he was expected to repay Smith at the end of that week;
however, Harmon admitted he was unable to repay Smith when expected because he had
gambled away the money at a casino. Harmon testified that when he told Smith he would
be unable to repay him on time, Smith became upset and told him a story about having
previously been in a shootout with someone else who owed him money. Harmon stated he
did not perceive this story to be a threat at the time, but later came to believe it was a threat.
Harmon told Smith he would repay him within a few weeks.
No. 18AP-965 4

{¶ 9} Harmon testified he texted Smith on June 23, 2017 to indicate he needed to
speak with him. Smith did not reply to the text but arrived at Harmon's apartment
approximately three hours later. Harmon testified he was surprised when Smith arrived
because he had not responded to the text message. Harmon testified he was smoking
marijuana and playing a video game when Smith arrived at his apartment. Harmon was
wearing a hooded sweatshirt with a large front pocket, where his marijuana supplies,
including a small knife, were located.
{¶ 10} After Smith entered the apartment, Harmon went to the coffee table to pause
the video game. Harmon testified he told Smith he could not repay him because he had lost
the money again. Harmon testified Smith became angry and began yelling, telling Harmon
to get the money from relatives if necessary. Harmon testified that Smith reached toward
a bulge at his waist, which Harmon believed was Smith's gun. Harmon stated he feared that
Smith would shoot him. However, Harmon admitted he did not actually see a gun.
Harmon testified that when Smith reached toward his waist, he rushed at him and grabbed
him. Harmon pulled the knife out of his sweatshirt pocket and began swinging it at Smith.
Harmon said he saw Smith opening the door, so he pushed Smith out of the apartment and
locked the door. Harmon claimed he believed he was acting in self-defense. After Smith
left the apartment, Harmon initially hid in the bathroom of the apartment in fear that Smith
would shoot through the door. When several minutes passed without Smith returning,
Harmon left the apartment and drove away from the complex in his car.
{¶ 11} The jury found Harmon guilty of all charges and the trial court found him
guilty of the repeat violent offender specifications associated with each charge. The trial
court found the attempted murder and felonious assault convictions merged for purposes
of sentencing, but the kidnapping conviction did not merge. The court sentenced Harmon
to a total of 16 years imprisonment on all charges and specifications.
II. Assignments of Error
{¶ 12} Harmon appeals and assigns the following four assignments of error for our
review:
[I.] The trial court committed plain error when it did not sua
sponte declare a mistrial after a witness repeatedly mentioned
Appellant's criminal record.
No. 18AP-965 5

[II.] Trial counsel was ineffective for not moving for a mistrial
or requesting a curative instruction after a witness repeatedly
mentioned Appellant's criminal record.

[III.] The verdicts were not supported by sufficient evidence
and Appellant's Crim.R. 29 Motion should have been granted.

[IV.] The jury's verdicts were against the manifest weight of
the evidence.

III. Analysis

A. Alleged Errors Resulting from References to Harmon's Prior Criminal
Record

{¶ 13} Harmon's first two assignments of error relate to statements Smith made
about Harmon's prior criminal record. On direct examination at trial, Smith provided the
following description of his relationship with Harmon:
Q: Can you describe your relationship with Mr. Harmon a little
bit more in depth?

A: Yeah. Well, basically, he has a brother, his name is Eric. Me
and him grew up together since we were five. He plays
basketball, as well. Basically my mom getting in a relationship
with his uncle made us family. Me and Eric was best friends 20
years, until this incident, basically at this point.

He was in prison my whole time throughout our friendship,
and I would be over at Eric's house, playing video games, things
of that nature. He'll get a call from jail to talk to his brother, or
I might not come over on a certain weekend - - I'm there every
weekend - - because he had to go for a visit to see his brother in
prison. So I always knew his brother was in prison. So we never
had a relationship to that extent.

Recently, when he got out of prison, of course, when you come
home you want to be able to enjoy your life. Of course, we're
guys, we want to go to the bar, hang out, things of that nature.

(Sept. 26, 2018 Tr. at 87-88.) Harmon's trial counsel objected to Smith's testimony. The
trial court then held a conference with counsel outside the hearing of the jury. Harmon's
trial counsel moved to strike any references to prison. The prosecutor did not object to the
motion. The judge noted that instructing the jury that any reference to prison would be
No. 18AP-965 6

stricken might serve to emphasize the reference to Harmon's time in prison and suggested
the entire answer be stricken; Harmon's trial counsel agreed with the suggestion. When
the conference ended, the trial court instructed the jury to disregard Smith's entire
response.
{¶ 14} Smith made a second reference to Harmon's criminal record in response to a
question on cross-examination:
Q: Now, at the time you - - when did you first meet Mr.
Harmon?

A: It would be when he first got out of prison. I would say - -

(Sept. 26, 2018 Tr. at 142.) At that point, the prosecutor objected and the trial court struck
Smith's response to the question.
{¶ 15} Harmon subsequently testified on his own behalf; during direct examination
Harmon stated he pled guilty to charges of attempted involuntary manslaughter and
attempted aggravated robbery when he was younger. No further references to Harmon's
criminal record were made during trial.
1. Failure of trial court to declare a mistrial
{¶ 16} Harmon argues in his first assignment of error the trial court erred by failing
to declare a mistrial based on Smith's references to his criminal history. Under Evid.R.
404(B), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith." Harmon asserts that Smith's
references to his criminal record warranted a mistrial because they suggested he was a
career criminal who had been to prison multiple times and was capable of unprovoked
violence. Harmon further argues Smith's statements forced him to testify in an attempt to
explain his prior criminal record and effectively denied him the right not to testify.
Harmon's trial counsel objected to Smith's statement during direct examination but did not
move for a mistrial. Harmon argues the trial court erred by failing to sua sponte declare a
mistrial in response to Smith's testimony.
{¶ 17} We review a trial court's failure to grant a mistrial sua sponte under the plain
error standard. State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 13. Plain error
exists when an error is plain or obvious and affects a substantial right. Id. "In order to
demonstrate plain error, the defendant must show: (1) an error that is plain on the record,
No. 18AP-965 7

i.e., a deviation from a legal rule that constitutes an obvious defect in the trial proceedings;
and (2) that such error affected substantial rights, i.e., there was a reasonable probability
that the error affected the outcome of the trial." State v. Barrie, 10th Dist. No. 15AP-848,
2016-Ohio-5640, ¶ 32. Appellate courts find plain error with the utmost caution, under
exceptional circumstances to prevent a manifest miscarriage of justice. Id.
{¶ 18} "A mistrial should not be ordered in a cause simply because some error has
intervened. The error must prejudicially affect the merits of the case and the substantial
rights of one or both of the parties." Tingue v. State, 90 Ohio St. 368 (1914), paragraph
three of the syllabus. "Mistrials need be declared only when the ends of justice so require
and a fair trial is no longer possible." State v. Franklin, 62 Ohio St.3d 118, 127 (1991). "A
trial court may grant a mistrial sua sponte when there is manifest necessity for the mistrial
or when the ends of public justice would otherwise be defeated." State v. Johnson, 10th
Dist. No. 08AP-652, 2009-Ohio-3383, ¶ 30.
{¶ 19} The Supreme Court of Ohio has held that a trial court does not abuse its
discretion by denying a motion for mistrial based on an isolated reference to a defendant's
other criminal acts, when there is an objection to the statement and a curative instruction
is given. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 175 ("In this case
* * * the reference to Trimble's prior conviction was a brief and isolated remark that was
followed by a curative instruction. The mere mention of Trimble's conviction, without
more, did not unfairly prejudice Trimble so as to require a mistrial."); State v. Garner, 74
Ohio St.3d 49, 59 (1995) ("In this case, the reference to the defendant's prior arrests was
fleeting and was promptly followed by a curative instruction. The trial court did not abuse
its discretion in failing to order a mistrial."). This court has similarly found no abuse of
discretion in denial of a motion for mistrial when an isolated reference to a defendant's
other criminal acts draws an objection that is sustained and followed by a curative
instruction. See State v. Brown, 10th Dist. No. 15AP-935, 2016-Ohio-7944, ¶ 21 ("[T]he
trial court sustained defense counsel's objection to the improper question [about the
circumstances of a prior conviction] before appellant responded and then struck the
question from the record. The trial court followed up with a short authoritative instruction
to the jury that they could not consider the prosecutor's question 'for any purpose in
deciding this case.' "); State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 53
No. 18AP-965 8

("Because the victim's reference to defendant's criminal occupations was an isolated
reference, the trial court immediately sustained defendant's objection, and the court
instructed the jury to disregard the question and response, the trial court did not abuse its
discretion in denying defendant's motion for a mistrial."). In Walburg and Brown, this
court noted that a jury is presumed to follow a trial court's curative instructions. Walburg
at ¶ 53; Brown at ¶ 21. Thus, where a brief reference to a defendant's other criminal acts is
immediately addressed through an objection and curative instruction, a trial court does not
abuse its discretion by concluding a mistrial is not warranted.
{¶ 20} Although Harmon's trial counsel did not move for a mistrial, we find this case
to be similar to Trimble, Garner, Walburg, and Brown. As in those cases, the references
to Harmon's criminal history were brief and were immediately addressed through
objections from counsel and curative instructions from the trial court. The jury was
presumed to follow those curative instructions. Under these circumstances, the brief
references to Harmon's criminal record did not prevent him from having a fair trial, and
the trial court did not plainly err by failing to sua sponte grant a mistrial in response to
Smith's statements.
{¶ 21} Accordingly, we overrule Harmon's first assignment of error.
2. Failure of trial counsel to move for mistrial or request curative instruction
{¶ 22} In his second assignment of error Harmon asserts his trial counsel provided
ineffective assistance by failing to move for a mistrial or request a curative instruction in
response to Smith's references to Harmon's criminal record.
{¶ 23} Harmon must satisfy a two-prong test to prevail on a claim of ineffective
assistance of counsel. First, he must demonstrate that his trial counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989). Second, he must establish that the deficient performance
prejudiced his defense. Strickland at 687; Bradley at 141-42. "To show that a defendant
has been prejudiced by counsel's deficient performance, the defendant must prove that
there exists a reasonable probability that, were it not for counsel's errors, the result of the
trial would have been different." Bradley at paragraph three of the syllabus. In considering
claims of ineffective assistance of counsel, we indulge in a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.
No. 18AP-965 9

Strickland at 689; Bradley at 142. "Decisions on trial strategy and tactics are generally
afforded a wide latitude of professional judgment, and it is not the duty of a reviewing court
to analyze trial counsel's legal tactics and maneuvers." State v. Phillips, 10th Dist. No.
14AP-79, 2014-Ohio-5162, ¶ 86.
{¶ 24} Harmon argues his trial counsel's failure to request a curative instruction in
response to Smith's testimony cannot be considered trial strategy. The record reflects that
both times Smith referred to Harmon's criminal record there was an objection to the
testimony and the trial court specifically instructed the jury to disregard the statements.
Additionally, when counsel and the trial court discussed the final jury instructions to be
given at the close of trial, the prosecutor noted that Harmon's criminal record had been
mentioned during Smith's direct testimony and suggested Harmon's trial counsel might
want a curative instruction. Harmon's trial counsel declined this suggestion and the trial
court noted the jury had been instructed to disregard the testimony at the time of the
original objections. Harmon appears to argue his trial counsel provided ineffective
assistance by failing to request curative instructions that went beyond telling the jury to
disregard the statements.
{¶ 25} Although Smith's references to Harmon's criminal record were inadmissible,
the jury ultimately became aware of Harmon's record through his own testimony. Under
Evid.R. 609(A)(2), evidence that an accused has been convicted of a crime is admissible for
purposes of attacking his credibility if the crime was punishable by death or more than one
year of imprisonment if the court finds that the probative value of the evidence outweighs
the danger of unfair prejudice, confusion of the issues, or misleading the jury. While
Harmon argues he was effectively forced to testify because of Smith's references to his prior
criminal record, it is clear from the opening statement of Harmon's trial counsel that self-
defense would form the crux of Harmon's defense against the charges. Because Harmon
and Smith were the only two witnesses to the altercation, Harmon's testimony was
necessary to establish his claim of self-defense. In the final jury instructions, the trial court
reiterated its prior instruction that the jury was not permitted to consider statements
stricken by the court. The court also instructed the jury that testimony related to Harmon's
prior convictions could only be considered to judge his credibility and the weight to be given
to his testimony.
No. 18AP-965 10

{¶ 26} Because the fact that Harmon had a criminal record would ultimately become
known to the jury, Harmon's trial counsel could have reasonably concluded that a more
specific curative instruction that went beyond telling the jury to disregard Smith's
statements would only serve to draw further attention to Harmon's criminal record. See,
e.g., State v. Crowley, 2d Dist. No. 2009 CA 65, 2009-Ohio-6689, at ¶ 15 ("Crowley's
counsel properly objected to Hopping's testimony regarding Crowley's history of domestic
violence against her. Although he did not request a limiting instruction when that testimony
was introduced, as discussed above, counsel could have reasonably concluded that a
limiting instruction would merely emphasize the prejudicial testimony. Counsel's conduct
with respect to Crowley's 'other acts' was not ineffective."). Applying the appropriate
standard of broad latitude for determining what constitutes professional judgment, we
cannot conclude Harmon's trial counsel performed deficiently by failing to request a more
specific curative instruction.
{¶ 27} Harmon also argues his trial counsel was ineffective for failing to move for a
mistrial following Smith's comments. As explained above, we presume the jurors were able
to follow the trial court's instructions to disregard Smith's statements. Those instructions
effectively cured any error arising from Smith's statements in the context of ineffective
assistance. State v. Sullivan, 10th Dist. No. 10AP-997, 2011-Ohio-6384, ¶ 82. As such, a
motion for mistrial by Harmon's counsel would have been futile because the trial court had
cured the error and would not have been required to grant the motion. Id. Failure to take
a futile act cannot form the basis for a claim of ineffective assistance of counsel, nor can
such a failure be prejudicial. Id. Therefore, we cannot conclude Harmon's trial counsel
performed deficiently by failing to move for a mistrial in response to Smith's testimony.
{¶ 28} Accordingly, we overrule Harmon's second assignment of error.
B. Sufficiency of the Evidence
{¶ 29} Harmon argues in his third assignment of error that the verdicts were not
supported by sufficient evidence and that the trial court erred by denying his Crim.R. 29
motion for acquittal. Because Harmon only challenges the sufficiency of the evidence to
support his conviction on the charge of kidnapping, we limit our review to the evidence
supporting that charge.
No. 18AP-965 11

{¶ 30} "Sufficiency of the evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.
08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must
determine "whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. Where the evidence, "if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction. Id.
"The testimony of a single witness, if believed by the finder of fact, is sufficient to support a
criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 18.
Because a Crim.R. 29 motion questions the sufficiency of the evidence, we apply the same
standard of review on appeal of a denial of a Crim.R. 29 motion as in a challenge to the
sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941,
¶ 44.
{¶ 31} Harmon was charged with kidnapping, in violation of R.C. 2905.01(A)(3),
which provides that an individual may not restrain the liberty of another person by force,
threat, or deception for the purpose of terrorizing or inflicting serious physical harm upon
them. Harmon argues Smith testified he locked the door upon entering Harmon's
apartment and, therefore, Smith's inability to leave the apartment was the result of his own
action. Smith's testimony on whether he locked the apartment door was unclear. During
his direct testimony, Smith stated he locked the door after entering Harmon's apartment.
Later, on cross-examination, Smith testified he was not certain who locked the door but
admitted it was his instinct to lock a door behind him upon entering a home.
{¶ 32} Regardless of whether Smith locked the door upon entering the apartment,
there was other evidence that Harmon prevented Smith from leaving the apartment. Smith
testified he tried to flee after Harmon began stabbing him, but when he was partially out of
the apartment Harmon put his body against the apartment door and pulled Smith's arm,
preventing him from getting his left side out of the door. There was also evidence that
Smith's left sandal was found inside the apartment, which was consistent with his account
of the struggle. Taking this evidence in the light most favorable to the prosecution, it would
No. 18AP-965 12

be sufficient to sustain a kidnapping conviction because it established that Harmon
prevented Smith from leaving the apartment so that he could continue his assault. See, e.g.,
Griffin at ¶ 87 (holding testimony that appellant positioned himself between victim and
vehicle door, thereby preventing victim from leaving vehicle, was sufficient to sustain a
kidnapping conviction); State v. Powell, 8th Dist. No. 99386, 2014-Ohio-2048, ¶ 16 ("The
kidnapping count relating to Tate was proved by more than sufficient evidence. As all of the
others were leaving the house in the wake of Brown's killing, Powell was seen putting his
arm out to prevent Tate from leaving the house. That act alone constituted a restraint for
purposes of the kidnapping statute.").
{¶ 33} Accordingly, we overrule Harmon's third assignment of error.
C. Manifest Weight of the Evidence
{¶ 34} Finally, in his fourth assignment of error, Harmon asserts the jury's verdicts
were against the manifest weight of the evidence.
{¶ 35} "While sufficiency of the evidence is a test of adequacy regarding whether the
evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest
weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell
at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 282, 2007-Ohio-2202, ¶ 25. When evaluating
a challenge to a verdict as being against the manifest weight of the evidence, "an appellate
court may not merely substitute its view for that of the trier of fact, but must review the
entire record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No. 10AP-881,
2011-Ohio-3161, ¶ 12, citing Thompkins at 387. In conducting our review of the evidence,
"we are guided by the presumption that the jury, or the trial court in a bench trial, 'is best
able to view the witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.' " State v.
Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984). An appellate court should reserve reversal of a
conviction as being against the manifest weight of the evidence for only the " 'exceptional
No. 18AP-965 13

case in which the evidence weighs heavily against the conviction.' " Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 36} Harmon argues the jury's verdicts were against the manifest weight of the
evidence because he established he acted in self-defense. Under the law at the relevant
time, self-defense is an affirmative defense that requires an accused to prove by a
preponderance of the evidence that: (1) he was not at fault in creating the situation that
gave rise to the altercation, (2) he had a bona fide belief that he was in imminent danger of
death or great bodily harm and his only means of escape was the use of force, and (3) he
did not violate any duty to retreat or avoid the danger. State v. Reynolds, 10th Dist. No.
18AP-560, 2019-Ohio-2343, ¶ 34. These elements are cumulative and if an accused fails to
prove any one of the elements by a preponderance of the evidence, he fails to demonstrate
that he acted in self-defense. Id. Harmon argues his testimony established all of these
elements by a preponderance of the evidence and the jury lost its way in finding him guilty
of the charges against him.
{¶ 37} With respect to the third element of self-defense, the evidence was
undisputed that the altercation occurred in Harmon's apartment. There is no duty to
retreat from one's own home before using force in self-defense. State v. Shine-Johnson,
10th Dist. No. 17AP-194, 2018-Ohio-3347, ¶ 11. However, with respect to the other two
elements of self-defense, we conclude the jury could reasonably have concluded Harmon
failed to establish he was not at fault in creating the situation or had a bona fide belief that
he was in imminent danger of death or great bodily harm and could only escape through
use of force. Harmon argues he was not at fault for creating the situation giving rise to the
altercation, asserting that Smith's history of carrying a handgun and making threatening
statements led to the altercation. However, Smith denied threatening Harmon and testified
Harmon attacked him shortly after he entered the apartment, while Smith was looking
down at his phone. Likewise, although Harmon argues he legitimately believed Smith was
carrying a gun and charged Smith as he was reaching for it, he admitted at trial that he did
not actually see a gun on Smith at the time of the incident. Smith testified he was not
carrying his gun when he entered Harmon's apartment on June 23, 2017. The two
apartment complex employees who aided Smith after the incident and Officer Callender
who responded to the emergency call all testified they did not see any weapons on Smith.
No. 18AP-965 14

The jury was in the best position to determine the credibility of Harmon, Smith, and the
other witnesses, and was free to believe or disbelieve any or all of the testimony relating to
these issues. Reynolds at ¶ 36. Based on the record before us, we cannot conclude the jury
clearly lost its way in rejecting Harmon's self-defense claim and concluding he was guilty
of the charges against him.
{¶ 38} Accordingly, we overrule Harmon's fourth assignment of error.
IV. Conclusion
{¶ 39} For the foregoing reasons, we overrule Harmon's four assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.