[Cite as State v. Colon, 2018-Ohio-1507.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106031
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SIXTO COLON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-612410-A
BEFORE: E.A. Gallagher, A.J., S. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 19, 2018 ATTORNEY FOR APPELLANT
John F. Corrigan 19885 Detroit Road, #335 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: John Farley Hirschauer Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, A.J.:
{¶1} Defendant-appellant Sixto Colon appeals his aggravated assault conviction from
the Cuyahoga County Court of Common Pleas. We affirm.
Factual and Procedural Background
{¶2} In 2017 Colon was charged with one count of felonious assault. The case
proceeded to a jury trial.
{¶3} Evidence was presented that, on December 8, 2016, Colon assaulted Samuel Gali
near Gali’s home on Hancock Avenue in Cleveland, Ohio. Gali was over 80 years old at the
time of the incident, lived across the street from Colon and had previously clashed with Colon
over Colon’s perception that Gali was “nosey.” Gali’s nephew, Carlos Torres, testified that
Colon had complained about Gali and warned Torres that if he didn’t take care of Gali, Colon
would “slap him.”
{¶4} Gali testified that on December 8, 2016, he was cutting and cleaning shrubbery in a
neighbor’s yard with a machete and broom. During this time Colon’s dog appeared and barked
at Gali. Gali responded by telling the dog to “shut up.” Gali testified that Colon then caught
him off guard and jumped on top of him, hitting him in the face several times until he was
rendered unconscious. Gali was transported to MetroHealth and treated for contusions and
lacerations to his head and face as well as a nasal bone fracture. Gali’s injuries were
documented in medical records and photographs introduced at trial.
{¶5} Hector Cruz testified that he was at work remodeling a home on Hancock Avenue
the morning of December 8, 2016 when he saw Colon on top of Gali, punching him. Cruz
yelled for Colon to stop and Colon got off Gali and kicked him once in the ribs before walking
away. Cruz did not see Gali returning any punches. Cruz observed a machete leaning against the house nearest to the fight but did not see anyone wield the machete. Cruz recognized Colon
as a resident who lived on Hancock but did not know Gali. After the fight, Cruz instructed his
sister to call 911.
{¶6} Manuel Ramos testified that he was acquainted with Colon as a neighbor with whom
he occasionally “hung out” and that he was walking his dog the morning of December 8, 2016
when, from roughly 70 or 80 yards away, he saw Gali hit Colon with what looked like a bat and
then Colon appeared to turn around and push Gali to the ground before continuing to his home.
When he walked closer to the scene of the incident, Ramos observed a machete “on the floor
when I was walking by.”
{¶7} Colon testified that he left his house the morning of December 8, 2016 to purchase
coffee at McDonald’s and that he encountered Gali as he was returning home. He further testified
that Gali charged at him with a machete in his hand and said “whats [sic] up now?” in Spanish.
Colon denied having any prior, significant confrontation with Gali but later admitted that he had
confronted Gali the day prior to the incident about allegedly poking his dog with a rake. Colon
also admitted that he told police that he had warned Torres that if his uncle didn’t stop bothering
him he was going “to get himself into a situation.”
{¶8} Colon testified that in response to the threatening move by Gali, he stated, “you’re
not going to do nothing with that knife in your hand.” According to Colon, Colon turned to
walk away and Gali struck him in the back of the neck with the machete and that he, then, turned
and “gave him a jab” in the face. Gali twice raised his arm to swing the machete and each time
Colon struck Gali in the face. After the third strike Gali dropped the machete and crumpled to
the ground. Colon then entered his home and left for work shortly thereafter. Colon denied
striking Gali while he was on the ground and claimed that Hector Cruz was lying and not present at the time of the confrontation. Colon’s girlfriend, Duranna Cuevas testified that she witnessed
the incident from a window in the home she shared with Colon. Her testimony was consistent
with Colon’s account.
{¶9} Colon had a coworker take pictures of his neck later that day. The pictures
reflected a red mark on the back of Colon’s neck.
{¶10} The jury returned a guilty verdict of aggravated assault, a lesser included offense of
felonious assault. The trial court imposed a prison term of 12 months and ordered restitution in
the amount of $203.41 in favor of Gali.
Law and Analysis
I. The Burden of Proof for Self-Defense
{¶11} In his first assignment of error, Colon argues that R.C. 2901.05(A), which requires
the defendant to bear the burden of proof when raising a self-defense claim, is unconstitutional.
{¶12} Colon concedes that the United States Supreme Court upheld the constitutionality
of R.C. 2901.05(A) in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).
Colon argues that the holding in Martin has been invalidated by the Court’s subsequent decision
in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
{¶13} We rejected an identical challenge in State v. Porter, 2016-Ohio-1115, 61 N.E.3d.
589 (8th Dist.), explaining that, while Heller recognizes the right to self-defense, “nothing in
Heller purports to alter the way the states have defined self-defense.” Id. at ¶ 45, quoting State v.
Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 47 (8th Dist.). See also
State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-1821; State v. Hudson, 8th Dist.
Cuyahoga No. 96986, 2012-Ohio-1345. We also noted that, as an inferior court to the United States Supreme Court, we are bound to follow the Martin decision and have no authority to
overturn it. Porter at ¶ 47.
{¶14} Colon’s first assignment of error is overruled.
II. Manifest Weight
{¶15} In his second assignment of error, Colon argues that the jury’s verdict that he failed
to prove self-defense was against the manifest weight of the evidence.
{¶16} When reviewing a claim by a defendant that evidence supports his claim of
self-defense, the manifest-weight standard is the proper standard of review because a defendant
claiming self-defense does not seek to negate an element of the offense charged but rather seeks
to relieve himself from culpability. Cleveland v. Williams, 8th Dist. Cuyahoga No. 81369,
2003-Ohio-31, ¶10, citing State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986).
{¶17} A manifest weight challenge attacks the credibility of the evidence presented and
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[Cite as State v. Colon, 2018-Ohio-1507.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106031
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SIXTO COLON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-612410-A
BEFORE: E.A. Gallagher, A.J., S. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 19, 2018 ATTORNEY FOR APPELLANT
John F. Corrigan 19885 Detroit Road, #335 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: John Farley Hirschauer Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, A.J.:
{¶1} Defendant-appellant Sixto Colon appeals his aggravated assault conviction from
the Cuyahoga County Court of Common Pleas. We affirm.
Factual and Procedural Background
{¶2} In 2017 Colon was charged with one count of felonious assault. The case
proceeded to a jury trial.
{¶3} Evidence was presented that, on December 8, 2016, Colon assaulted Samuel Gali
near Gali’s home on Hancock Avenue in Cleveland, Ohio. Gali was over 80 years old at the
time of the incident, lived across the street from Colon and had previously clashed with Colon
over Colon’s perception that Gali was “nosey.” Gali’s nephew, Carlos Torres, testified that
Colon had complained about Gali and warned Torres that if he didn’t take care of Gali, Colon
would “slap him.”
{¶4} Gali testified that on December 8, 2016, he was cutting and cleaning shrubbery in a
neighbor’s yard with a machete and broom. During this time Colon’s dog appeared and barked
at Gali. Gali responded by telling the dog to “shut up.” Gali testified that Colon then caught
him off guard and jumped on top of him, hitting him in the face several times until he was
rendered unconscious. Gali was transported to MetroHealth and treated for contusions and
lacerations to his head and face as well as a nasal bone fracture. Gali’s injuries were
documented in medical records and photographs introduced at trial.
{¶5} Hector Cruz testified that he was at work remodeling a home on Hancock Avenue
the morning of December 8, 2016 when he saw Colon on top of Gali, punching him. Cruz
yelled for Colon to stop and Colon got off Gali and kicked him once in the ribs before walking
away. Cruz did not see Gali returning any punches. Cruz observed a machete leaning against the house nearest to the fight but did not see anyone wield the machete. Cruz recognized Colon
as a resident who lived on Hancock but did not know Gali. After the fight, Cruz instructed his
sister to call 911.
{¶6} Manuel Ramos testified that he was acquainted with Colon as a neighbor with whom
he occasionally “hung out” and that he was walking his dog the morning of December 8, 2016
when, from roughly 70 or 80 yards away, he saw Gali hit Colon with what looked like a bat and
then Colon appeared to turn around and push Gali to the ground before continuing to his home.
When he walked closer to the scene of the incident, Ramos observed a machete “on the floor
when I was walking by.”
{¶7} Colon testified that he left his house the morning of December 8, 2016 to purchase
coffee at McDonald’s and that he encountered Gali as he was returning home. He further testified
that Gali charged at him with a machete in his hand and said “whats [sic] up now?” in Spanish.
Colon denied having any prior, significant confrontation with Gali but later admitted that he had
confronted Gali the day prior to the incident about allegedly poking his dog with a rake. Colon
also admitted that he told police that he had warned Torres that if his uncle didn’t stop bothering
him he was going “to get himself into a situation.”
{¶8} Colon testified that in response to the threatening move by Gali, he stated, “you’re
not going to do nothing with that knife in your hand.” According to Colon, Colon turned to
walk away and Gali struck him in the back of the neck with the machete and that he, then, turned
and “gave him a jab” in the face. Gali twice raised his arm to swing the machete and each time
Colon struck Gali in the face. After the third strike Gali dropped the machete and crumpled to
the ground. Colon then entered his home and left for work shortly thereafter. Colon denied
striking Gali while he was on the ground and claimed that Hector Cruz was lying and not present at the time of the confrontation. Colon’s girlfriend, Duranna Cuevas testified that she witnessed
the incident from a window in the home she shared with Colon. Her testimony was consistent
with Colon’s account.
{¶9} Colon had a coworker take pictures of his neck later that day. The pictures
reflected a red mark on the back of Colon’s neck.
{¶10} The jury returned a guilty verdict of aggravated assault, a lesser included offense of
felonious assault. The trial court imposed a prison term of 12 months and ordered restitution in
the amount of $203.41 in favor of Gali.
Law and Analysis
I. The Burden of Proof for Self-Defense
{¶11} In his first assignment of error, Colon argues that R.C. 2901.05(A), which requires
the defendant to bear the burden of proof when raising a self-defense claim, is unconstitutional.
{¶12} Colon concedes that the United States Supreme Court upheld the constitutionality
of R.C. 2901.05(A) in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).
Colon argues that the holding in Martin has been invalidated by the Court’s subsequent decision
in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
{¶13} We rejected an identical challenge in State v. Porter, 2016-Ohio-1115, 61 N.E.3d.
589 (8th Dist.), explaining that, while Heller recognizes the right to self-defense, “nothing in
Heller purports to alter the way the states have defined self-defense.” Id. at ¶ 45, quoting State v.
Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 47 (8th Dist.). See also
State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-1821; State v. Hudson, 8th Dist.
Cuyahoga No. 96986, 2012-Ohio-1345. We also noted that, as an inferior court to the United States Supreme Court, we are bound to follow the Martin decision and have no authority to
overturn it. Porter at ¶ 47.
{¶14} Colon’s first assignment of error is overruled.
II. Manifest Weight
{¶15} In his second assignment of error, Colon argues that the jury’s verdict that he failed
to prove self-defense was against the manifest weight of the evidence.
{¶16} When reviewing a claim by a defendant that evidence supports his claim of
self-defense, the manifest-weight standard is the proper standard of review because a defendant
claiming self-defense does not seek to negate an element of the offense charged but rather seeks
to relieve himself from culpability. Cleveland v. Williams, 8th Dist. Cuyahoga No. 81369,
2003-Ohio-31, ¶10, citing State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986).
{¶17} A manifest weight challenge attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist.
Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may determine that a
judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the
judgment is against the weight of the evidence.
{¶18} “When considering an appellant’s claim that a conviction is against the manifest
weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may disagree with the
factfinder’s resolution of conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457
U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must examine the
entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, 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. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172,
485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that the
credibility of witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of
the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional case in which
the evidence weighs heavily against the conviction.” Thompkins at 387, quoting Martin, supra.
{¶19} In Ohio, self-defense is an affirmative defense that a defendant must prove by a
preponderance of the evidence. R.C. 2901.05(A); State v. Goff, 128 Ohio St.3d 169,
2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36. To prevail on a claim of self-defense, a defendant must
prove three elements: (1) the defendant was not at fault in “creating the situation giving rise to
the affray”; (2) the defendant had a bona fide belief that he or she was in imminent danger of
death or great bodily harm and that the only means of escape from such danger was through the
use of force and (3) the defendant did not violate any duty to retreat or avoid the danger. State
v. Callahan, 2016-Ohio-2934, 65 N.E.3d 155, ¶ 25 (8th Dist.), citing State v. Barnes, 94 Ohio
St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240; Goff at ¶ 36.
{¶20} In this instance we cannot say that the jury lost its way in believing the accounts of
the assault provided by Gali and Cruz over those of Colon, Cuevas and Ramos. Ramos’s
testimony lacked credibility because his description of events was incompatible with the injuries
suffered by Gali and he had a social relationship with Colon. The jury was in the best position
to weigh the credibility of the other witnesses and resolve the conflicts in the evidence. This is
not the exceptional case where the evidence weighs heavily against the conviction. {¶21} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
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.
_____________________________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR