[Cite as Berea v. McElroy, 2013-Ohio-1188.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98642
CITY OF BEREA PLAINTIFF-APPELLEE
vs.
GILBERT McELROY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Berea Municipal Court Case No. 11 CRB 00964
BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 28, 2013 ATTORNEYS FOR APPELLANT
Megan M. Patituce Joseph C. Patituce Jennifer Scott Patituce & Scott, L.L.C. 26777 Lorain Road Suite 708 North Olmsted, Ohio 44070
ATTORNEY FOR APPELLEE
James N. Walters, III Director of Law City of Berea 31 East Bridge Street Suite 302 P.O. Box 297 Berea, Ohio 44017 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Gilbert McElroy, appeals his conviction for assault in
the Berea Municipal Court. Finding no merit to the appeal, we affirm appellant’s
conviction.
{¶2} On August 4, 2011, appellant was charged with one count of assault, in
violation of R.C. 2903.13, a misdemeanor of the first degree. A bench trial was held on
March 6, 2012.
{¶3} At trial, Edward Schaefer testified that after parking his vehicle at Chase
Bank, he and appellant began to argue when appellant made a disparaging comment about
Schaefer parking in a handicap space, albeit legally. Schaefer testified that he walked
away from the argument and headed towards the Chase Bank ATM. Appellant went into
a Radio Shack located next to the bank. However, shortly after, appellant came back
outside and continued his “tirade against [Schaefer].” Ultimately, the distance between
the men “closed,” and appellant head-butted Schaefer. At that time, Schaefer called 911
and waited for the police to arrive.
{¶4} Clyde Taylor testified that he and his wife, Ruth Taylor, were approaching
the Chase Bank building when they observed two men arguing back and forth. Mr.
Taylor testified that he was approximately 35 feet away and did not observe the entire
incident. However, he testified that he witnessed appellant head-butt Schaefer, stating,
“[Schaefer] seemed like he was backing off a little bit, and then the next thing I know, [appellant] moved in and head-butted him.” Mrs. Taylor corroborated Mr. Taylor’s
testimony, stating, “I saw that they were arguing when we were driving up, and I told my
husband, ‘Oh my god. I think they’re going to start fighting.’ And then I saw when
[appellant] head-butted [Schaefer].”
{¶5} Chad Smith testified that he was working at Radio Shack on August 1, 2011.
Smith testified that he observed appellant and Schaefer exchanging words during a heated
discussion in the parking lot outside the store. Thereafter, appellant entered the Radio
Shack and purchased a battery. Smith described appellant as being “frazzled.” Smith did
not observe any altercation after appellant purchased the battery, but testified that
appellant later returned to the store and asked to use the phone, stating that he was forced
to defend himself against Schaefer.
{¶6} Appellant testified that he was walking toward a Radio Shack with his
ten-year-old daughter when Schaefer suddenly came up to him and started yelling.
Appellant stated that he attempted to walk away from the situation but that Schaefer
continued to follow him and threatened to “shoot his ass.” Appellant testified that he took
Schaefer’s threats seriously and was afraid for the safety of his young daughter. He
testified that Schaefer threatened him, raised his hand, and lunged at him, and it was at
that time they “slammed heads.” Appellant maintained that he did not intend to have any
physical contact with Schaefer. {¶7} At the close of testimony, the court found appellant guilty as charged. On
June 6, 2012, appellant was sentenced to a fine of $100 plus court costs and one year of
active probation.
{¶8} Appellant now brings this timely appeal, raising three assignments of error
for review.
Law and Analysis
I. Ineffective Assistance of Counsel
{¶9} In his first assignment of error, appellant argues that he received ineffective
assistance of counsel. To establish ineffective assistance of counsel, a defendant must
show (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that
but for counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. There is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance, and that strategy and tactical decisions
exercised by defense counsel are well within the range of professionally reasonable
judgment. Strickland at 699.
{¶10} Initially, appellant argues that counsel was ineffective for failing to move
for the separation of witnesses. Although it is good practice to move for separation of
witnesses, we are unwilling to conclude that counsel is deficient, per se, by failing to do so. Cleveland v. Hopkins, 8th Dist. Nos. 97600 and 97601, 2012-Ohio-5170; State v.
Farris, 2d Dist. No. 2003 CA 77, 2004-Ohio-5980. Here, appellant has failed to present
any evidence that the outcome of the trial would have been different if the witnesses were
separated. There was no indication that the witnesses gave untrustworthy testimony.
Further, we are unable to discern from the record whether the prosecution’s witnesses
altered their testimony due to their ability to hear prior witnesses. Thus, appellant has
failed to establish that he was prejudiced by counsel’s decision not to separate witnesses.
{¶11} Appellant further contends that his trial counsel was ineffective for failing to
argue that he acted in self-defense. However, contrary to appellant’s claim, the record
reflects that trial counsel argued during the bench trial below that appellant was not the
aggressor in this matter and that any force used against Schaefer was made in
self-defense. Specifically, trial counsel elicited testimony from appellant during direct
examination that appellant felt threatened by Schaefer’s conduct and believed that
Schaefer was going to use physical force against him and/or his child.
{¶12} Nevertheless, even if appellant’s trial counsel had not raised these
arguments, his counsel would not have been ineffective because the record did not
support the affirmative defense of self-defense. See State v. Shepherd, 8th Dist. No.
97962, 2012-Ohio-5415; State v. Cozart, 8th Dist. No. 91226, 2009-Ohio-489.
To establish self-defense for the use of less than deadly force in defense of one’s person, the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and (3) the force used was not likely to cause death or great bodily harm.
State v. Tanner, 9th Dist. No. 3258-M, 2002-Ohio-2662, ¶ 23. In the instant case,
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[Cite as Berea v. McElroy, 2013-Ohio-1188.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98642
CITY OF BEREA PLAINTIFF-APPELLEE
vs.
GILBERT McELROY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Berea Municipal Court Case No. 11 CRB 00964
BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 28, 2013 ATTORNEYS FOR APPELLANT
Megan M. Patituce Joseph C. Patituce Jennifer Scott Patituce & Scott, L.L.C. 26777 Lorain Road Suite 708 North Olmsted, Ohio 44070
ATTORNEY FOR APPELLEE
James N. Walters, III Director of Law City of Berea 31 East Bridge Street Suite 302 P.O. Box 297 Berea, Ohio 44017 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Gilbert McElroy, appeals his conviction for assault in
the Berea Municipal Court. Finding no merit to the appeal, we affirm appellant’s
conviction.
{¶2} On August 4, 2011, appellant was charged with one count of assault, in
violation of R.C. 2903.13, a misdemeanor of the first degree. A bench trial was held on
March 6, 2012.
{¶3} At trial, Edward Schaefer testified that after parking his vehicle at Chase
Bank, he and appellant began to argue when appellant made a disparaging comment about
Schaefer parking in a handicap space, albeit legally. Schaefer testified that he walked
away from the argument and headed towards the Chase Bank ATM. Appellant went into
a Radio Shack located next to the bank. However, shortly after, appellant came back
outside and continued his “tirade against [Schaefer].” Ultimately, the distance between
the men “closed,” and appellant head-butted Schaefer. At that time, Schaefer called 911
and waited for the police to arrive.
{¶4} Clyde Taylor testified that he and his wife, Ruth Taylor, were approaching
the Chase Bank building when they observed two men arguing back and forth. Mr.
Taylor testified that he was approximately 35 feet away and did not observe the entire
incident. However, he testified that he witnessed appellant head-butt Schaefer, stating,
“[Schaefer] seemed like he was backing off a little bit, and then the next thing I know, [appellant] moved in and head-butted him.” Mrs. Taylor corroborated Mr. Taylor’s
testimony, stating, “I saw that they were arguing when we were driving up, and I told my
husband, ‘Oh my god. I think they’re going to start fighting.’ And then I saw when
[appellant] head-butted [Schaefer].”
{¶5} Chad Smith testified that he was working at Radio Shack on August 1, 2011.
Smith testified that he observed appellant and Schaefer exchanging words during a heated
discussion in the parking lot outside the store. Thereafter, appellant entered the Radio
Shack and purchased a battery. Smith described appellant as being “frazzled.” Smith did
not observe any altercation after appellant purchased the battery, but testified that
appellant later returned to the store and asked to use the phone, stating that he was forced
to defend himself against Schaefer.
{¶6} Appellant testified that he was walking toward a Radio Shack with his
ten-year-old daughter when Schaefer suddenly came up to him and started yelling.
Appellant stated that he attempted to walk away from the situation but that Schaefer
continued to follow him and threatened to “shoot his ass.” Appellant testified that he took
Schaefer’s threats seriously and was afraid for the safety of his young daughter. He
testified that Schaefer threatened him, raised his hand, and lunged at him, and it was at
that time they “slammed heads.” Appellant maintained that he did not intend to have any
physical contact with Schaefer. {¶7} At the close of testimony, the court found appellant guilty as charged. On
June 6, 2012, appellant was sentenced to a fine of $100 plus court costs and one year of
active probation.
{¶8} Appellant now brings this timely appeal, raising three assignments of error
for review.
Law and Analysis
I. Ineffective Assistance of Counsel
{¶9} In his first assignment of error, appellant argues that he received ineffective
assistance of counsel. To establish ineffective assistance of counsel, a defendant must
show (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that
but for counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. There is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance, and that strategy and tactical decisions
exercised by defense counsel are well within the range of professionally reasonable
judgment. Strickland at 699.
{¶10} Initially, appellant argues that counsel was ineffective for failing to move
for the separation of witnesses. Although it is good practice to move for separation of
witnesses, we are unwilling to conclude that counsel is deficient, per se, by failing to do so. Cleveland v. Hopkins, 8th Dist. Nos. 97600 and 97601, 2012-Ohio-5170; State v.
Farris, 2d Dist. No. 2003 CA 77, 2004-Ohio-5980. Here, appellant has failed to present
any evidence that the outcome of the trial would have been different if the witnesses were
separated. There was no indication that the witnesses gave untrustworthy testimony.
Further, we are unable to discern from the record whether the prosecution’s witnesses
altered their testimony due to their ability to hear prior witnesses. Thus, appellant has
failed to establish that he was prejudiced by counsel’s decision not to separate witnesses.
{¶11} Appellant further contends that his trial counsel was ineffective for failing to
argue that he acted in self-defense. However, contrary to appellant’s claim, the record
reflects that trial counsel argued during the bench trial below that appellant was not the
aggressor in this matter and that any force used against Schaefer was made in
self-defense. Specifically, trial counsel elicited testimony from appellant during direct
examination that appellant felt threatened by Schaefer’s conduct and believed that
Schaefer was going to use physical force against him and/or his child.
{¶12} Nevertheless, even if appellant’s trial counsel had not raised these
arguments, his counsel would not have been ineffective because the record did not
support the affirmative defense of self-defense. See State v. Shepherd, 8th Dist. No.
97962, 2012-Ohio-5415; State v. Cozart, 8th Dist. No. 91226, 2009-Ohio-489.
To establish self-defense for the use of less than deadly force in defense of one’s person, the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and (3) the force used was not likely to cause death or great bodily harm.
State v. Tanner, 9th Dist. No. 3258-M, 2002-Ohio-2662, ¶ 23. In the instant case,
insufficient evidence exists to support each of the required three elements of self-defense
because the testimony presented at trial supports the prosecution’s position that appellant
was at fault in creating the situation giving rise to the affray.
{¶13} Accordingly, appellant’s ineffective assistance of counsel claims are without
merit. Appellant’s first assignment of error is overruled.
II. Manifest Weight and Sufficiency of the Evidence
{¶14} In his second and third assignments of error, appellant challenges his
conviction as being both against the manifest weight of the evidence and not supported by
sufficient evidence.
{¶15} The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. {¶16} “A manifest weight challenge, on the other hand, questions whether the
prosecution met its burden of persuasion.” State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982). The manifest weight of the evidence standard of review requires us to 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. Otten, 33 Ohio App.3d 339, 515
N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary power to
grant a new trial should be exercised only in exceptional cases where the evidence weighs
heavily against the conviction. Thompkins, supra.
{¶17} We are mindful that the weight to be given the evidence and the credibility
of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has
the authority to “believe or disbelieve any witness or accept part of what a witness says
and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).
{¶18} In the case at hand, appellant was charged with assault, in violation of R.C.
2903.13(A), which states: “[n]o person shall knowingly cause or attempt to cause physical harm to another or another’s unborn.” Thus, the prosecution was required to prove,
beyond a reasonable doubt, that appellant knowingly caused or attempted to cause
physical harm to Schaefer.
{¶19} Here, the evidence adduced at trial demonstrated that Schaefer and appellant
began to argue in the parking lot of a shopping plaza after appellant made an
inappropriate comment about Schaefer parking in a handicap space. Schaefer testified
that when the argument escalated, appellant “came up to me, closed the distance, and
before I knew what was happening, he head-butted me in the face.” Schaefer’s
testimony was corroborated by Clyde and Ruth Taylor, who testified that they witnessed
appellant and Schaefer engaged in a heated argument when appellant suddenly
head-butted Schaefer. From this evidence, a reasonable factfinder could find that
appellant knowingly caused Schaefer physical harm. Accordingly, we find that the state
presented sufficient evidence to sustain appellant’s assault conviction.
{¶20} Moreover, we are unable to conclude that this is the exceptional case in
which the evidence weighs heavily against appellant’s conviction. The trial court, as the
trier of fact, was in the best position to weigh the credibility of the witnesses and was free
to find the testimony of Schaefer and the corroborating witnesses to be more credible than
appellant’s testimony. Deferring to the trial court’s assessment of the credibility of the
witnesses, as we must, we cannot say that the trier of fact lost its way and performed a
miscarriage of justice in convicting appellant of assault. {¶21} Accordingly, appellant’s second and third assignments of error are
overruled.
{¶22} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Berea
Municipal Court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR