In re T.S.

2022 Ohio 975

• Court: Ohio Court of Appeals
• Decided: March 24, 2022
• Docket: 21 CAF 08 0039
• Status: Published

Opinion

[Cite as In re T.S., 2022-Ohio-975.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. Earle E. Wise, Jr., P. J. Hon. William B. Hoffman, J. T.S. Hon. John W. Wise, J.

Case No. 21 CAF 08 0039

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 20-10-119-DL

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 24, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL BRADLEY P. KOFFEL PROSECUTING ATTORNEY KOFFEL BRININGER NESBITT MEGAN A. HAMMOND 1801 Watermark Drive, Suite 350 ASSISTANT PROSECUTOR Columbus, Ohio 43215 145 North Union Street 3rd Floor PAUL GIORGIANNI Delaware, Ohio 43015 GIORGIANNI LAW LLC 1538 Arlington Avenue Columbus, Ohio 43212 Delaware County, Case No. 21 CAF 08 0039 2

Wise, John, J.

{¶1} Defendant-Appellant T.S. appeals the judgment entered by the Delaware

County Court of Common Pleas, Juvenile Division, on July 2, 2021. Plaintiff-Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

FACTS AND PROCEDURAL HISTORY

{¶2} On October 21, 2020, a complaint was filed in the Court of Common Pleas

of Delaware County, Juvenile Division, charging Appellant with one count of delinquency

based upon felonious assault.

{¶3} On March 15, 2021, the magistrate held an adjudicatory hearing. At the

hearing, Appellee submitted video surveillance of the incident in question.

{¶4} On July 31, 2020, Appellant and the victim were playing basketball at an

open gym supervised by Andy Gast and Josh Gast. The video showed Appellant, after

making a basket, taking the basketball, searching for the victim and throwing the ball to

him in a taunting manner. Testimony showed Appellant said, “and one bitch” to the victim.

The victim, while standing several feet away from Appellant, threw the ball hard at

Appellant’s head.

{¶5} Appellant then aggressively charged the victim in a manner to strike him.

The victim, apparently in an effort to defend himself from the charging Appellant, jabbed

at Appellant’s face. Appellant then landed several punches on the victim, including one

to the victim’s face which broke his jaw. The victim’s medical records and photos of his

injuries were submitted into evidence.

{¶6} Appellant was not injured in the incident. Delaware County, Case No. 21 CAF 08 0039 3

{¶7} On March 31, 2021, the magistrate filed its decision regarding the

disposition.

{¶8} On April 2, 2021, Appellant filed an objection to the Magistrate’s Decision

regarding adjudication.

{¶9} On May 17, 2021, Appellant filed another objection to the Magistrate’s

Decision.

{¶10} On July 2, 2021, the juvenile court judge filed an entry adopting the March

18th Magistrate’s Decision regarding adjudication.

{¶11} On August, 11, 2021, the juvenile court judge filed an entry regarding

ASSIGNMENTS OF ERROR

{¶12} On August 23, 2021, Appellant filed a notice of appeal raising the following

eight Assignments of Error:

{¶13} “I. THE JUDGE ERRED IN FINDING THAT APPELLANT “WAITED FOR

THE BALL TO FALL THROUGH THE NET.

{¶14} “II. THE COURT ERRED IN FINDING THAT APPELLANT THREW THE

BALL AT J.

{¶15} “III. THE COURT ERRED IN FINDING THAT APPELLANT “‘SHOVED’ THE

BALL INTO [J.’S] CHEST.’ ”

{¶16} “IV. THE COURT ERRED IN FINDING THAT J. DID “THE SAME THING”

WITH THE BALL THAT APPELLANT DID TO HIM.

{¶17} “V. THE COURT ERRED IN FINDING THAT J. RAISED HIS ARMS ONLY

AFTER BEING HIT AND ONLY FOR THE PURPOSE OF DEFENSE. Delaware County, Case No. 21 CAF 08 0039 4

{¶18} “VI. THE COURT’S FINDING THAT APPELLANT DID NOT ACT IN SELF

DEFENSE IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶19} “VII. THE COURT ERRED IN FAILING TO ACKNOWLEDGE THE

DEFENSE OF MUTUAL COMBAT.

{¶20} “VIII. ADJUDICATING APPELLANT DELINQUENT FOR FELONIOUS

ASSAULT WITHOUT ADJUDICATING J. DELINQUENT FOR FELONIOUS ASSAULT

VIOLATES APPELLANT’S FEDERAL AND OHIO CONSTITUTIONAL GUARANTEES

OF DUE PROCESS AND EQUAL PROTECTION.”

I., II., III., IV., V.

{¶21} In Appellant’s First, Second, Third, Fourth, and Fifth Assignments of Error,

Appellant argues his conviction is against the manifest weight of the evidence. We

disagree.

{¶22} In his first five assignments of error, Appellant fails to cite any statute, case

law, rules of evidence, or learned treatise from this or any jurisdiction to support his

argument. Accordingly, Appellant’s brief does not comply with App.R.16(A)(7), which

provides,

The appellant shall include in its brief, under the headings and in the

order indicated, all of the following * * * An argument containing the

contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record on which

appellant relies. The argument may be preceded by a summary. Delaware County, Case No. 21 CAF 08 0039 5

{¶23} “If an argument exists that can support [an] assignment of error, it is not this

court’s duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-

Ohio-3299, ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-

4368, ¶31. “It is not the function of this court to construct a foundation for [an appellant’s]

claims; failure to comply with the rules governing practice in the appellate courts is a

tactic which is ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009-

Ohio-1211, ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9 th

Dist. 1996). Therefore, “[w]e may disregard any assignment of error that fails to present

any citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic,

Inc., 4th Gallia No. 07CA4, 2008-Ohio-2194, ¶12. See, also, App.R. 16(A)(7); App.R.

12(A)(2); Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, ¶16; Tally

v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-1831, ¶21-22; Jarvis v.

Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, ¶23; State v. Paulsen, 4th Hocking

Nos. 09CA15, 2010-Ohio-806, ¶6; State v. Norman, 5th Guernsey No. 2010-CA-22,

2011-Ohio-596, ¶29; State v. Untied, 5th Dist. Muskingum No. CT2006005, 2007-Ohio-

1804, ¶141.

{¶24} An appellate court may rely on App.R. 12(A) in overruling or disregarding

an assignment of error because of “the lack of briefing” on the assignment of error.

Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393 (1988); Abon, Ltd.

v. Transcontinental Ins. Co., 5th Dist. Richland No. 2004-CA-0029, 2005-Ohio-3052,

¶100; State v. Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-4636, ¶41. “Errors

not treated in the brief will be regarded as having been abandoned by the party who gave Delaware County, Case No. 21 CAF 08 0039 6

them birth.” Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351, 356, 188 N.E. 553,

555 (1933).

{¶25} In the interest of justice, we will proceed to consider this assignment of error.

{¶26} An appellate court applies the same manifest weight standard of review in

a juvenile delinquency case that it applies in an adult criminal appeal. See In re E.A., 9th

Dist. Summit No. 28106, 2016-Ohio-7281, ¶11. When reviewing a weight of the evidence

argument, the appellate court reviews the entire record weighing the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts of 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. Thompkins, 78 Ohio St.3d 380. The granting of a new trial “should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

{¶27} Appellant argues the magistrate and judge clearly lost their way in finding

Appellant delinquent because the evidence does not show that Appellant waited for the

ball to drop through the net, that Appellant threw the ball at the victim, that Appellant

shoved the ball into victim’s chest, that victim did the same thing with the ball that

Appellant did, and that the victim raised his arms only after being hit.

{¶28} Appellant was judged delinquent for violating R.C. 2903.11(A), Felonious

Assault.

{¶29} R.C. 2903.11(A), in pertinent part, states:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn[.] Delaware County, Case No. 21 CAF 08 0039 7

{¶30} In the case sub judice, testimony and the surveillance video show Appellant

taking the ball from the basket, transferring it in an aggressive and taunting manner

toward the victim, charging the victim, striking the victim in the face, and braking the

victim’s jaw.

{¶31} Even if, assuming arguendo, Appellant’s argument has merit, that the listed

facts were not supported by evidence, the record otherwise demonstrates the existence

of substantial, probative evidence in the surveillance video to support the magistrate’s

decision and trial court’s adjudication.

{¶32} Appellant’s First, Second, Third, Fourth, and Fifth Assignments of Error are

overruled.

VI.

{¶33} In Appellant’s Sixth Assignment of Error, Appellant alleges the trial court’s

finding that Appellant did not act in self-defense is against the manifest weight of the

evidence. We disagree.

{¶34} Again, an appellate court applies the same manifest weight standard of

review in a juvenile delinquency case that it applies in an adult criminal appeal. See In

re E.A., 9th Dist. Summit No. 28106, 2016-Ohio-7281, ¶11. When reviewing a weight of

the evidence argument, the appellate court reviews the entire record weighing the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of 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. Thompkins, 78 Ohio St.3d 380. The granting of a new trial

“should be exercised only in the exceptional case in which the evidence weighs heavily Delaware County, Case No. 21 CAF 08 0039 8

against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717.

{¶35} Under former R.C. 2901.05(A) the defendant had the burden of proving self-

defense by a preponderance of the evidence. Effective March 28, 2019, Ohio’s self-

defense law was changed to require the prosecution to establish the defendant did not

act in self-defense where the defense could reasonably be found to apply. R.C.

2901.05(A), as amended states, in relevant part:

Every person accused of an offense is presumed innocent until

proven guilty beyond a reasonable doubt, and the burden of proof for all

elements of the offense is upon the prosecution. The burden of going

forward with the evidence of an affirmative defense, and the burden of proof,

by a preponderance of the evidence, for an affirmative defense other than

self-defense * * * as described in (B)(1) of this section, is upon the accused.

{¶36} R.C. 2901.05(B)(1) further states:

A person is allowed to act in self-defense, defense of another, or

defense of that person’s residence. If, at the trial of a person who is accused

of an offense that involved the person’s use of force against another, there

is evidence presented that tends to support that the accused person used

the force in self-defense, defense of another, or defense of that person’s

residence, as the case may be.

{¶37} Since evidence was presented at trial in support that Appellant used non-

deadly force in self-defense, the State must now prove beyond a reasonable doubt that

the defendant did not use that force in self-defense. State v. Jacinto, 8th Dist. No. 108944, Delaware County, Case No. 21 CAF 08 0039 9

2020-Ohio-3722, 155 N.E.3d 1056, ¶46; State v. Staats, 5th Dist. Stark No.

2019CA00181, 2021-Ohio-1325, ¶28. Therefore, the State must disprove at least one of

the elements of the use of non-deadly force in self-defense beyond a reasonable doubt:

either (1) the defendant was at fault in creating the situation giving rise to the affray in

which the force was used, (2) the defendant did not have reasonable grounds to believe

or an honest belief that he or she was in imminent danger of bodily harm, or (3) the

defendant used more force than was reasonably necessary to defend against the

imminent danger of bodily harm. Jacinto at ¶46, citing State v. Carney, 10th Dist. Franklin

No. 19AP-402, 2020-Ohio-2691, ¶31; State v. Nestigen, 5th Dist. Richland No. 2019 CA

110, 2020-Ohio-2965, ¶17.

{¶38} Appellant alleges that the trial court’s finding that Appellant was at fault for

creating the situation giving rise to the affray, that Appellant did not have reasonable

grounds to believe or an honest belief that he or she was in imminent danger of bodily

harm, and that Appellant used more force than was reasonably necessary to defend

against the imminent danger of bodily harm was against the manifest weight of the

evidenc.

{¶39} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus; Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-

Ohio-7184, ¶15. The trier of facts is “free to believe all, part, or none of the testimony of

each witness.” Id. “This Court will not overturn the trial court’s verdict on a manifest

weight of the evidence challenge only because the trier of fact chose to believe certain

witness testimony over the testimony of others.” State v. Pittman, 9th Dist. Summit No. Delaware County, Case No. 21 CAF 08 0039 10

29705, 2021-Ohio-1051, ¶16 citing State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-

4022, ¶15. This includes instances when the trier of facts rejects defendant’s self-serving

testimony that he or she acted in self-defense. See State v. Johnson, 9th Dist. Lorain No.

13CA010496, 2015-Ohio-1689, ¶15; State v. Miller, 3rd Dist. Marion No. 9-18-02, 2018-

Ohio-3433, ¶41.

{¶40} In the case sub judice, Appellee entered into evidence a surveillance video

showing Appellant taunting the victim and throwing the ball at him. Then, the victim

throws the ball back at Appellant aggressively from several feet away. The victim makes

no further move toward Appellant. The Appellant then charges the victim attacking him.

The victim jabbed his hand out in an effort to stop the charging Appellant. Appellant then

struck the victim several times, breaking the victim’s jaw.

{¶41} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the trier of facts lost its way and created a manifest

miscarriage of justice. Although Appellee only had to prove beyond a reasonable doubt

one of the following, we do not find the trial court erred when it found Appellant was at

fault for creating the situation giving rise to the affray, that Appellant did not have a

reasonable belief he was in imminent danger of bodily harm, and that Appellant used

more force than was reasonably necessary to defend against imminent danger of bodily

harm against the manifest weight of the evidence.

{¶42} Appellant’s Sixth Assignment of Error is overruled. Delaware County, Case No. 21 CAF 08 0039 11

VII.

{¶43} In Appellant’s Seventh Assignment of Error, Appellant argues the trial court

erred in applying the defense of mutual combat. We disagree.

{¶44} In putting forth his argument, Appellant cites Champer v. State, 14 Ohio St.

437 (1863). In its entirety, the Supreme Court of Ohio’s per curiam opinion states:

Held, an indictment against A. for assault and battery upon B., is not

sustained by evidence that A. assaulted and beat B. in a fight at fisticuffs,

by agreement between them.

An assault and battery and an affray are distinct offenses under the

statute, punishable by different penalties.

{¶45} Appellant contends this holding establishes mutual combat as a defense to

assault and battery. It does not. The Supreme Court merely makes a finding that in

Champer, the State indicted A. under the wrong statute. Id. Since 1863, the State of Ohio

has codified the criminal code into statute. Appellant failed to cite to any current statute

in the State of Ohio listing “affray” as a crime. In Davis v. State, 32 Ohio St. 24, 28, The

Supreme Court of Ohio held that the elements necessary to constitute a crime must be

wholly included in the statute. Again, the crime of Felonious Assault is detailed in R.C.

2903.11. In pertinent part, it states:

(1) Cause serious physical harm to another or to another’s unborn[.]

{¶46} In the case sub judice, the State provided testimony and a surveillance

video showing Appellant taking the ball from the basket, transferring it in an aggressive Delaware County, Case No. 21 CAF 08 0039 12

and taunting manner toward the victim, charging the victim, striking the victim in the face,

and breaking the victim’s jaw, meeting the elements of Felonious Assault.

{¶47} Moreover, this Court is unable to locate any evidence that mutual combat

as a defense exists in the State of Ohio. The Eighth District Court of Appeals also has

not recognized mutual combat as a defense in the State of Ohio. State v. Lynch, 8th Dist.

Cuyahoga No. 95770, 2011-Ohio-3062, ¶16; State v. Jacinto, 8th Dist. No. 108944, 2020-

Ohio-3722, 155 N.E.3d 1056.

{¶48} Appellant cites a series of cases where the defense of mutual combat was

never successfully established, only that defendants have tried and failed to argue it in

the past. State v. Garner, 5th Dist. Stark No. 96CA0027, 1996 WL 488809 (the defendant

was convicted of assault and the attorney failed to succeed on a claim of mutual combat);

State v. Wilson, 5th Dist. Delaware No. 2006CA100082, 2007-Ohio-4564 (the defendant

raised an ineffective assistance of counsel claim when the attorney tried and failed a

mutual combat strategy in defense to assault); City of Newark v. Bendick, 5th Dist. Licking

No. 93 CA 117, 1994 WL 202298 (counsel for defendant tried and failed to establish a

defense of mutual combat as a defense to assault).

{¶49} To the contrary of Appellant’s argument that such a defense exists, both the

First District Court of Appeals and the Tenth District Court of Appeals recognize that

“where two persons agree to fight each other in a non-competitive boxing situation, each

may be held guilty of * * * felonious assault * * * where the harm visited upon one of the

fighters constitutes serious physical harm.” State v. McCurdy, 10th Dist. Franklin No.

13AP-321, 2013-Ohio-5710, ¶21; State v. Dunham, 118 Ohio App.3d 724, 730, 693

N.E.2d 1175, 1179 (1st Dist.1997). Delaware County, Case No. 21 CAF 08 0039 13

{¶50} Therefore, Appellant’s Seventh Assignment of Error is overruled.

VIII.

{¶51} In Appellant’s Eighth Assignment of Error, Appellant argues adjudicating

Appellant delinquent for felonious assault without adjudicating the victim delinquent as

well violates Appellant’s federal and Ohio constitutional guarantees of due process and

equal protection. We disagree.

{¶52} In support, Appellant cites In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671,

950 N.E.2d 528. In In re D.B., minor D.B. was charged with statutory rape arising from

sexual conduct occurring between D.B. and M.G., another minor. Id. On appeal, the

Supreme Court of Ohio found “the prosecutor’s choice to charge D.B. but not M.G. is the

very definition of discriminatory enforcement * * * D.B. and M.G. engaged in sexual

conduct with each other, yet only D.B. was charged.” Id.

{¶53} However, this case does not support Appellant’s position. In re D.B., D.B.

was charged with R.C. 2907.02(A)(1)(b). In pertinent part, it states, “[n]o person shall

engage in sexual conduct with another * * * when the other person is less than thirteen

years of age.” R.C. 2907.02(A)(1)(b). This is a strict liability standard, where, as in the

case of D.B. and M.G., it is impossible to discern which is the offender and which is the

victim. The felonious assault statute, R.C. 2903.11(A)(1), requires a knowing standard

which differentiates between victim and offender.

{¶54} In addition, a plain reading of the statute allows Appellant to be charged,

but not victim. R.C. 2903.11(A)(1) provides that an offender is guilty of felonious assault

if he or she knowingly causes serious physical harm, or attempts to knowingly cause

serious physical harm with a deadly weapon. As applied Appellant committed felonious Delaware County, Case No. 21 CAF 08 0039 14

assault by knowingly causing serious bodily harm to the victim by breaking the victim’s

jaw with a punch. The victim did not knowingly cause serious bodily harm to Appellant,

nor did he attempt to with a deadly weapon. Therefore, the victim did not commit

felonious assault.

{¶55} Therefore, the trial court did not err in adjudicating Appellant delinquent for

Felonious Assault without also adjudicating the victim delinquent as well.

{¶56} Appellant’s Eighth Assignment of Error is overruled.

{¶57} For the foregoing reasons, the judgment of the Juvenile Division of the Court

of Common Pleas of Delaware County, Ohio, is hereby affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Hoffman, J., concur.

JWW/br 0322