[Cite as State v. Kramer, 2009-Ohio-5769.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASENO. 4-09-12
v.
ROBERT R. KRAMER, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court Trial Court No. 08-CR-10266
Judgment Affirmed
Date of Decision: November 2, 2009
APPEARANCES:
Clayton J. Crates for Appellant
Russell R. Herman for Appellee Case No. 4-09-12
ROGERS, J.
{¶1} Defendant-Appellant, Robert Ray Kramer, Jr., appeals the judgment
of the Court of Common Pleas of Defiance County finding him guilty of
aggravated assault and sentencing him to a seventeen-month prison term. On
appeal, Kramer argues that the trial court committed plain error by not instructing
the jury on the defense of others; that he was rendered ineffective assistance of
counsel due to trial counsel’s failure to request a jury instruction on the defense of
others; and, that the jury verdict was against the manifest weight of the evidence.
Based on the following, we affirm the judgment of the trial court.
{¶2} In July 2008, the Defiance County Grand Jury indicted Kramer on
one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the
second degree, and one count of aggravated assault in violation of R.C.
2903.12(A)(2), a felony of the fourth degree. The indictment arose from an
incident during which Kramer struck Miguel Hernandez with a broken beer bottle
during an altercation outside of a bar, severing his jugular vein and causing him to
sustain serious injuries. Subsequently, Kramer entered a not guilty plea to both
counts in the indictment.
{¶3} In February 2009, the case proceeded to a jury trial, at which the
following testimony was heard. Patrolman Drew Waltmire of the Defiance Police
Department testified that he responded to a residence on February 24, 2008, in
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response to a call that a man was bleeding profusely from his neck; that Patrolman
Hendon and Lieutenant Martinez also responded to the residence; that, upon his
arrival, he observed Miguel Hernandez holding a blood-soaked towel on his neck,
with his shirt covered in blood; that Miguel stated he had been stabbed by a man
named Bobby during a fight at Sinner’s Bar; that, after Miguel was transported to
the hospital, he spoke with him again regarding the incident, and Miguel told him
that he was at Sinner’s Bar and saw his ex-girlfriend, April Crawford, with Bobby;
that Miguel continued that he and Bobby got into an altercation in the bar and he
left, that Bobby and two other men followed him out of the bar, that he felt
threatened so he put his keys in between his fingers for protection, and that he was
hit in the head; that Miguel was then “life-flighted” to another hospital (trial tr.,
vol. 1, p. 172); and, that he searched Miguel’s clothes after he changed at the
hospital and found keys, but not a knife.
{¶4} Officer Rueben Hendon of the Gahanna Police Department testified
that he was employed by the Defiance Police Department on February 24, 2008;
that, on that evening, he responded to an emergency call at a residence with
Patrolman Waltmire and Lieutenant Martinez; that, when he arrived at the
residence, he observed Miguel on the porch bleeding profusely, with a towel
pressed to his neck; that, after gathering information about the incident, he went to
the area around Sinner’s Bar; that, upon his arrival, he found a broken beer bottle
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and blood on the ground; that, after collecting the evidence and taking it back to
the station, he went to Kramer’s residence; that, when he arrived at the residence,
Kramer came to the door and stated that he knew they were going to come and
speak with him; that he also stated that Miguel lunged at him with a knife, so he
swung a beer bottle and hit Miguel to protect himself; and, that Kramer admitted
he had been drinking, but was cooperative with him in going to the police station.
{¶5} Sergeant Steve Waldron of the Defiance Police Department testified
that, while working on February 24, 2008, Lieutenant Martinez instructed him to
go to Sinner’s Bar in regards to a stabbing that had occurred there; that, upon
responding to Sinner’s, he spoke to Bill Reeves, an employee of the bar, who
stated that there had been a fight outside the bar that evening; that Lieutenant
Martinez then arrived, and they both viewed the video tape recording from the
bar’s security camera; that Lieutenant Martinez recognized Kramer on the video
tape due to an earlier incident that evening at Spanky’s Bar; that, later that
evening, Lieutenant Martinez told him to go pick up Kramer; that, upon arriving at
the residence, Kramer answered the door and stated that he knew the police were
coming; that Kramer agreed to go with him to the police station; and, that, as he
was escorting Kramer to the car, Kramer said, “he was coming at me with a knife,
I was just protecting myself, you know, what did you expect me to do[.]” (Id. at
219).
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{¶6} Patrolman Steven Delaney of the Defiance Police Department
testified that he, Sergeant Waldron, and Patrolman Hendon collected evidence in
the vicinity of Sinner’s Bar; that he followed a blood trail from the residence at
which Miguel was discovered down to other streets; that he also went to the
vicinity of Sinner’s Bar the following morning to look for a knife; that, on the
evening of the stabbing and the following morning, he did not find a knife; and,
that he did not look for a knife on the rooftops of several buildings in the area, in
the residence where Miguel was located, or in several storm drains along the path
that Miguel walked from the scene of the stabbing to the residence.
{¶7} Lieutenant Lee Martinez of the Defiance Police Department testified
on direct examination that, on the evening of February 24, 2008, he was
dispatched to a residence in regards to a man bleeding from his neck; that, when
he arrived at the residence, he observed Juan Urbina and Miguel, who was
bleeding profusely from his neck; that, after Miguel was taken to the hospital, he
went to Sinner’s Bar, as that is where Miguel indicated he was involved in the
altercation; that, while at Sinner’s, he viewed video from the bar’s security
cameras; that he recognized Kramer on the video as the man he encountered
earlier that evening at Spanky’s Bar, where it was alleged that Kramer spit beer on
his ex-girlfriend; that, on the video, it showed a verbal altercation between Miguel
and Kramer, with Miguel being escorted out the door and Kramer and several
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other individuals leaving shortly thereafter; that he then went to Kramer’s aunt and
uncle’s residence to speak with potential witnesses; that, at the residence, he
located Patricia and David Bernard, Kramer’s aunt and uncle, and Tracey
McCowan, Kramer’s sister; that these three individuals came to the police station
for further questioning regarding the incident; that during the interviews, these
individuals indicated that there were others involved with Kramer in his
altercation with Miguel, but they did not know their names; and, that based upon
these interviews, they learned of Kramer’s location.
{¶8} On cross-examination, Lieutenant Martinez testified that, according
to the time on the video, Miguel walked into Sinner’s Bar at 2:09 a.m.; that Miguel
came into the bar and immediately sat next to his ex-girlfriend, April Crawford;
and, that Miguel did not order a drink when he first walked in.
{¶9} Detective John Williamson of the Defiance Police Department
testified that he was called to investigate a stabbing incident in the early morning
hours of February 24, 2008; that, as part of his investigation, he interviewed
Kramer; that Kramer admitted being in an altercation with Miguel outside of
Sinner’s Bar; that Kramer also told him that he approached Miguel outside due to
an altercation they had inside the bar, exchanged words with him, broke a bottle
on Miguel’s neck, and immediately left when Miguel started bleeding; that he
initially told him only he and Crawford were present during the altercation; that
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Kramer stated he first had an exchange with Miguel at a UAW hall that night,
where he and Crawford went to watch a boxing match; that he continued that he
and Crawford left out of a back door of the building after a verbal altercation with
Miguel at the event, Miguel went out a different door, there was a confrontation
outside, and Miguel threw a bottle at him; that Kramer further stated that he did
not encounter Miguel again until he and Crawford were at Sinner’s Bar, where
Miguel came into the bar and sat next to Crawford, words were exchanged
between himself and Miguel, to the effect that she did not want anything to do
with him, and employees then escorted Miguel out of the bar; that Kramer then
admitted that other individuals were present with him on that evening, but he did
not want to give their names “because of potential problems that they could have
or would have” (Id. at 288); that he was able to later discover the identities of
these individuals through his investigation; that Kramer initially stated that Miguel
swung at him with something in his hand during the altercation outside of Sinner’s
Bar, but that he did not know exactly what it was; that, however, Kramer later
stated Miguel had a knife in his hand; and, that Kramer also denied breaking the
bottle before striking Miguel with it.
{¶10} Reaud Hernandez, Miguel’s brother, testified that he attended a
boxing match with Miguel at the UAW Hall; that, while they were at the match, he
saw Crawford and Kramer; that Kramer looked at Miguel on more than one
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occasion and smiled at him; that Kramer also called out Miguel’s name and
laughed at him; that Miguel never said anything to Kramer; that he left the boxing
match, but Miguel stayed; that, the next time he had contact with Miguel, he was
in the hospital; and, that he had previously seen Miguel under the influence of
marijuana.
{¶11} Miguel testified on direct examination that Crawford was his ex-
girlfriend; that she broke up with him in February 2008 and began dating Kramer;
that he attended boxing matches at the UAW hall on February 23, 2008; that,
while at the matches, he saw Kramer, who initially approached him and tried to
shake his hand; that he did not want to shake Kramer’s hand because he was
taunting him; that Kramer then walked “by a couple more times smiling * * * and
grinning” (trial tr., vol. 2, p. 336); that he then saw Crawford walk in and sit next
to Kramer; that, when he left the matches, he did not have an altercation with
Kramer or Crawford; that he then went to Papa Primo’s Bar, where he became
upset about seeing Crawford and Kramer; that he consumed around ten or twelve
beers throughout the course of the evening; that, while at Papa Primo’s, he sent
several text messages to Crawford that were “a lot of BS, * * * it was probably
threatening to them * * *, but * * * [he] was just blowing a lot of wind” (Id. at
347); that he subsequently left Papa Primo’s to go have another drink at Sinner’s
Bar; that, when he walked into the bar, Crawford and Kramer were sitting right at
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the bar in front of him; that he approached Crawford “to hear some closure * * *,
to hear the truth” (Id. at 350); that, when he attempted to talk to Crawford, she
ignored him and walked away; that Kramer then approached him and told him to
leave Crawford alone, and they subsequently had a heated argument; that the
bartender broke up the argument, and he then left; and, that, as he was walking
away from the bar, Kramer, a couple of his friends, and Crawford walked out of
the back door of the bar and started heckling him, calling him a “sissy”, a “fag”,
and a “spic.” (Id. at 355).
{¶12} Miguel continued that he then turned around, exchanged words with
Kramer and his two friends, and challenged Kramer to fight him; that Kramer
stated he would also have to fight his two friends; that Kramer and the other two
men began to encircle him; that he was afraid, so he took his keys out of his
pocket and put them between his knuckles in order to defend himself; that he
might have swung his fist containing the keys prior to anyone else attempting to
strike him, as he was trying to “get them off of [him] [and]was trying to leave” (Id.
at 418); that Kramer then grabbed a bottle of beer out of the six-pack that was in
his hands, broke it on the ground, and started coming towards him; that he tried to
run, but the other two men continued to push him towards Kramer, attempting to
punch and kick him; that he began to swing his arms to block the punches and
kicks; that he then tried to grab the bottle from Kramer, and Kramer stabbed him
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in the neck with it; that Kramer and the two other men then left, and he went to his
friend’s house to get help; that, while at the hospital, marijuana and cocaine were
found in his system; and, that he has two convictions for domestic violence from
1994 and 1996.
{¶13} On cross examination, Miguel testified that some of the text message
he sent to Crawford stated, “If fag boy is listening, fuck you. At Primo’s waiting
for you, fag”; “Fuck you, Bobby. You’ll get * * * yours, bitch”; “I really hope
you had fun fucking with my head ‘cause it’s my turn. Tell fag boy I’m waiting”;
“Or will I have to look for him? I will * * *”; “* * * I will pay you and fag boy
back. I promise you that before I die it will happen”; “A day of reckoning is
before you”; “Don’t let me catch you and fag boy together. I will fuck your lives
up”; “Fuck you boy, I will get you”; and, “Call me or I will go to your house * *
*” (Id. at 383-387); that, even though he encountered Kramer at Sinner’s Bar, he
did not know he was going to be there; that he did not order a drink when he
walked into the bar; that, as he was being taunted while walking away from
Sinner’s Bar, he turned around and headed back towards Kramer and his friends,
as he thought there was going to be a fist fight between him and Kramer; that he
did not have a knife with him during the altercation, and that he never carries a
knife with him; that, when he pulled out his keys and put them between his
fingers, he heard people say that he had a knife, to which he responded, “shit,
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right” (Id. at 409); that, when he started to throw punches with the keys in his fist,
one of the other men had already thrown punches at his head; that he tried to throw
a punch at Kramer with the keys in his fist after Kramer broke the beer bottle, but
before he stabbed him with it; and, that he lied to the medical personnel at the
hospital and told them that he had not ingested any illegal drugs.
{¶14} Jared Sorg testified that he was working as a bartender at Primo’s
Bar on February 23, 2008; that Miguel came into the bar that evening and was
very upset; that Miguel was intoxicated when he entered the bar; that Miguel
continued to order drinks and was rude to another bartender; that he was going to
stop serving Miguel and ask him to leave, but he left before he had the
opportunity; and, that he is Kramer’s friend.
{¶15} Crawford testified that she dated Miguel intermittently for two years;
that they lived together for about one year; that Miguel previously told her that he
was addicted to cocaine; that, one evening after she and Miguel broke up, Kramer
contacted her about going to some boxing matches; that she met Kramer at the
boxing event, and, while there, she noticed Miguel was also present; that, during
the event, she and Kramer went outside to smoke a cigarette; that, while outside,
Miguel also came out to smoke; that she and Miguel spoke to each other and were
friendly; that, after going back inside and watching the event, she and Kramer
proceeded to leave, when Miguel began yelling at them; that Miguel went outside
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and called for them to come out; that they decided to go out the back door of the
building, through the kitchen; that, as they went out the back door, she heard a
loud noise like something hit the dumpster or the top of the car, and Miguel was
standing there and began arguing with them; that Miguel was yelling, “how long
has this been going on” (Id. at 479); that they then left and went to Spanky’s Bar;
that, while at Spanky’s, something happened but she did not see it because she was
in the bathroom; that she and Kramer then went to Sinner’s Bar; that, while at
Sinner’s, she noticed Miguel called her, but she did not notice any text messages;
that she did not respond to Miguel’s phone calls; that, shortly thereafter, while she
was sitting at the bar, she turned around and saw Miguel next to her; that he stated
he wanted to speak with her, but she and Kramer asked him to leave, he refused to
do so, and an argument ensued; that a bar employee then instructed that they or
Miguel leave; that Miguel left out of the front door, she purchased a six pack of
beer, and she and Kramer began to exit out of the back door; that, shortly after she
walked out the back door, she heard someone say that Miguel was outside, and
Kramer told her to go back inside; and, that she went back inside the bar and did
not see anything that occurred thereafter.
{¶16} On cross-examination, Crawford testified that she still talks
occasionally with Kramer, but they are not dating; that there was an altercation
between Kramer and his ex-girlfriend at Spanky’s Bar, but she did not see what
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happened because she was in the bathroom; that, apparently, Kramer spit on his
ex-girlfriend, or she spit on him; that, at some point during the evening, some of
Kramer’s friends joined her and Kramer, including Craig, Mike, and J.R. Begley;
that she could not remember how much Kramer drank that evening; that she was
not sure if Craig and Mike also walked out of Sinner’s Bar at the same time she
and Kramer were leaving; that, after the altercation between Kramer and Miguel,
Kramer’s aunt, Patricia, came into Sinner’s to get her; that Patricia had not been
with them that evening; that she then went to Kramer’s stepsister’s mother’s
house; that Kramer also arrived at the residence around the same time she did, but
he did not ride with her in the car, and she did not know how he got to the
residence; that, after the police came to the residence to pick up Kramer, she went
to the police station for questioning; that, until she arrived at the police station, she
was not aware of the incident between Miguel and Kramer; and, that she did not
see any of the text messages that Miguel sent her until several hours after she left
Sinner’s Bar.
{¶17} Craig Pratt testified on direct examination that he and Kramer are
close friends; that he joined Kramer at Spanky’s Bar on February 23, 2008; that he
did not see Kramer get into an altercation with an ex-girlfriend while at Spanky’s;
that they then went to Sinner’s Bar about an hour and a half later; that another
friend, Mike Strong, was also at Sinner’s; that, at some point, he and Mike walked
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outside, and he saw “[Kramer] in front of [Miguel] and [Miguel] had a knife and
was yelling and cussing at [Kramer] and waving the knife at him” (Id. at 507); that
Kramer told Miguel to put the knife down and go home; that he and Mike got on
each side of Miguel, and Miguel started swinging the knife at them; that he did not
want to turn his back to Miguel because he was scared, as Miguel “was acting
crazy” (Id. at 516); that, at some point, he heard a bottle break and Miguel started
bleeding; that Kramer had a full beer bottle in his hand when they went outside of
the bar, and Kramer did not break the bottle while outside; and, that he did not see
how the bottle broke, but Kramer stated, as they were leaving, that he hit Miguel
with the bottle.
{¶18} On cross-examination, Pratt testified that he has several felony
convictions, including a conviction for unlawful sexual conduct with a minor; that
he had several drinks that evening even though he was not permitted to consume
alcohol as a condition of his parole; and, that he told Detective Williamson that
there were certain things he could not remember about the incident because he was
drunk.
{¶19} Mike Strong testified on direct examination that he was with
Kramer, Crawford, and Kramer’s sister at the boxing event; that he did not see any
problems during the event; that, as he was leaving, Kramer called him and told
him that “there was some guy messing with him, and he threw a beer bottle at him,
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and he just wanted me to make sure that I was outside just in case anything went
down, so I was there to see it” (Id. at 530); that Kramer never told him “who was
messing with him” (Id. at 531); that, when he left the event, he went with Kramer
to Spanky’s Bar; that he believes one of Kramer’s ex-girlfriends arrived at
Spanky’s, but he did not see her; that they then left Spanky’s and went to Sinner’s
Bar; that he was not permitted to be in a bar at that time as a condition of his
probation for negligent vehicular homicide; that, at some point, they left Sinner’s;
that he does not know exactly why they decided to leave the bar, but it was close
to closing time; that he did not see Kramer get into an altercation with Miguel
inside of Sinner’s; that, as he and Pratt walked outside the bar, he saw Kramer
down the street standing face to face with Miguel with his hands up; that, as he
walked down the street to make sure Kramer was okay, he saw Miguel holding a
knife in his hands; that Kramer told him to watch out because Miguel had a knife,
and Miguel swung at Kramer with the knife; that Miguel also swung the knife at
him and Pratt; that he could not remember what Miguel said as he was swinging
the knife, but Kramer told him to put the knife down and go home; that, at some
point, he fell down, and when he stood up, Miguel was holding his neck and
saying that he was going home; that he did not see Miguel bleeding or hear glass
break; that he did not hear Kramer break a bottle near the entrance of Sinner’s Bar;
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and, that he was “one hundred percent positive” that Miguel had a knife and not
keys. (Id. at 542).
{¶20} On cross-examination, Strong testified that he is friends with Kramer
and that he has been dating Kramer’s sister for a year and a half; that he did not
see anything in Kramer’s hands during the altercation with Miguel except a beer
bottle; that he, Kramer, and Pratt did not surround Miguel outside of Sinner’s Bar,
but were standing in front of him; that he did not feel comfortable turning his back
on Miguel and walking away because Miguel had a knife; and, that he told Kramer
that he had an opportunity to get away from Miguel, and that, as he understood the
law, this would not be a case of self-defense.
{¶21} Kramer testified on direct examination that he attended the boxing
event in February 2008 with ten or twelve of his family members; that he invited
Crawford to attend the event, but they were not dating at the time; that, before
Crawford arrived, he saw Miguel and said hello to him, as he knew him from
previously working together; that, during the event, he and Crawford went outside
to smoke, and Miguel came outside and stared at them; that, during the boxing
matches, he had three beers; that, at the end of the event, as he and Crawford were
leaving, they walked by Miguel in order to get to the exit, and Crawford stopped
and said hello to Miguel’s brother, at which time Miguel stated to him, “you’re
going to fucking get yours,” and went to the exit (trial tr., vol. 3, p. 571); that he
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then decided to go out the back door of the building to avoid Miguel; that, as he
and Crawford walked out of the back door, Miguel came running around the
corner and threw something at him, which missed and hit a van behind him; that
he told Miguel he needed to go home, and Miguel walked away; that he then
proceeded to Spanky’s Bar to meet his family and friends; that, while at Spanky’s,
he drank a beer and also had an altercation with his ex-girlfriend; that she shoved
him, he spit beer on her, the police were called, and he was asked to leave; that, he
then went to Sinner’s Bar with Crawford and his friends and family; and, that,
while at Sinner’s, he drank more beer and also drank tequila.
{¶22} Kramer continued that, around 2:00 a.m., he saw Miguel come into
the bar; that he told Crawford, “[Miguel] just walked in, grab your stuff, lets go”
(Id. at 587); that Miguel then started asking Crawford why she was with him, and
when she did not reply, Miguel stated, “I’m fucking talking to you” (Id. at 587);
that he then told Miguel that she did not want to talk to him and that he needed to
calm down; that Miguel then stated, “Fuck you, you ain’t got nothing to do with
this; * * * shut the fuck up” (Id. at 587-588); that he then told Miguel to “get the
fuck away, she’s going home with me tonight” (Id. at 588); that Miguel then came
towards him; that the bartender then intervened and told both him and Miguel to
leave; that Miguel left first out the front door; that he then ordered a six-pack of
beer to go and left; that he and Crawford walked out of the bar by themselves, and
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he had a beer in his hand; that, as he walked out the door, he heard someone
shouting, and he then saw Miguel slightly down the road; that Miguel then began
walking towards him, and stated, “I fucking told you your ass was mine * * *, I’m
going to fucking kill you,” at which time Miguel “started coming at [him] very,
very fast” (Id. at 592); that he then told Crawford to go back inside the bar; that he
stated to Miguel, “If you want to fight, we can fight. * * * [B]ut I’m telling you I
don’t want to fight you, go home” (Id. at 594); that, as Miguel advanced closer to
him, he could see he had a knife in his hand, and Miguel swung the knife at him;
that, at that point, Strong and Pratt came outside, and he told them that Miguel had
a knife; that Miguel also swung at them several times with the knife; that he did
not see Strong or Pratt hit or kick Miguel; that he did not want to turn his back on
Miguel because he thought he might get stabbed; that Miguel again came toward
him with the knife, and he then told Miguel that if he cut him with the knife, he
was going to hit him with the beer bottle; that Miguel then lunged towards him
and swiped at him with the knife, and he hit him with the beer bottle, striking him
across the shoulder; that Miguel then stood there for a minute, began to bleed, and
stated, “I’m done” (Id at 606); that he did not break the bottle on the ground before
he cut Miguel with it, but the bottle broke when he hit Miguel; that he then left,
went to his Aunt Patricia’s house, and then went to his house with Crawford; that
he would have voluntarily gone to the police station if he knew that Miguel was
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badly injured; that, shortly after he arrived home, the police came to his house and
asked him to come with them; that he told one of the officers that Miguel attacked
him with a knife; that, while speaking with Detective Williamson, he stated
multiple times that Miguel had a knife; and, that he had a conviction for operating
a vehicle while intoxicated, and a juvenile conviction for receiving stolen
property.
{¶23} On cross-examination, Kramer testified that he never walked by and
smiled at Miguel at the boxing event; that, although Miguel threatened him at the
boxing event, he did not contact the police; that he had a confrontation with his
cousin’s boyfriend while at Sinner’s Bar because he told him that he needed to
leave; that, when he left Sinner’s and Miguel began to yell at him and walk in his
direction, he also walked towards Miguel; that he did not try to go back into
Sinner’s Bar because he had been told to leave, but he did tell Crawford to go back
into the bar; that, in his statement to Detective Williamson, he never said that
Miguel advanced towards him outside Sinner’s Bar; that he also said in his
statement that he told Miguel, “[W]e can do this right here” (Id. at 658); that,
when Strong and Pratt came outside, Miguel swung at them with the knife, but that
each of them would advance on Miguel, which caused the entire altercation to
move continually down the street; that he or Crawford never attempted to contact
the police; and, that, at his initial interview with police, he did not tell them that
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Pratt and Strong were with him that evening because he was asked who went
outside Sinner’s Bar with him in his confrontation with Miguel, and they did not
initially go outside with him, and because they were both on parole and not
supposed to be at the bar.
{¶24} Subsequently, the jury found Kramer not guilty on the charge of
felonious assault and guilty on the charge of aggravated assault.
{¶25} In March 2009, the trial court sentenced Kramer to a seventeen-
month prison term on the aggravated assault conviction.
{¶26} It is from his conviction and sentence that Kramer appeals,
presenting the following assignments of error for our review.
Assignment of Error No. I
THE COURT COMMITTED PLAIN ERROR BY NOT INSTRUCTING THE JURY ON DEFENSE OF OTHERS.
Assignment of Error No. II
TRIAL COUNSEL PROVED INEFFECTIVE BY NOT REQUESTING A JURY INSTRUCTION ON THE DEFENSE OF OTHERS.
Assignment of Error No. III
THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
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{¶27} In his first assignment of error, Kramer argues that the trial court
committed plain error by not giving a defense of others jury instruction.
Specifically, Kramer contends that sufficient evidence was presented to establish
that he was defending both Pratt and Strong when he struck Miguel, such that an
instruction on the defense of others should have been given to the jury. We
disagree.
{¶28} We initially note that Kramer did not object to the trial court’s
failure to give an instruction on the defense of others, nor did Kramer request such
an instruction. Accordingly, he has waived all but plain error. State v. Lee, 180
Ohio App.3d 739, 2009-Ohio-299, ¶7; Crim.R. 30(A); Crim.R. 52(B).
{¶29} In order to have plain error under Crim.R. 52(B), there must be an
error, the error must be an “obvious” defect in the trial proceedings, and the error
must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68. Plain error is to be used “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. Plain error exists only in the event that it can be said that “but for the error, the
outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio
St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-
Ohio-825.
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{¶30} In order for a defendant to assert the affirmative defense of defense
of others, it must be shown that he was “protecting another person from immediate
danger of bodily harm from an assailant as long as the other person could assert
the defense himself.” State v. Streight, 3d Dist. No. 2-01-23, 2002-Ohio-672,
citing State v. Wenger (1979), 58 Ohio St.2d 336. In order make a valid claim of
self-defense, the following showing must be made:
(1) * * * [he] was not at fault in creating the situation giving rise to the affray; (2) * * * [he] has [sic] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of * * * force; and (3) * * * [he] must not have violated any duty to retreat or avoid the danger.
State v. Bowman, 3d Dist. No. 9-01-47, 2002-Ohio-3391, ¶11, quoting State v.
Williford (1990), 49 Ohio St.3d 247, 249. The critical inquiry of a self-defense
claim is into the defendant’s state of mind. State v. Moore, 3d Dist. Nos. 1-06-89,
1-06-96, 2007-Ohio-3600, ¶59. A defendant is only entitled to a jury instruction
on the defense of others where he introduces sufficient evidence that, if believed,
raises a reasonable question as to the existence of the issue. State v. Davis, 5th
Dist. No. 2003 CA 429, 2004-Ohio-7056, ¶14, citing State v. Melchior (1978), 56
Ohio St.2d 15.
{¶31} In the case sub judice, in order for a defense of others instruction to
be warranted, Kramer must have shown that either Pratt or Strong was not at fault
in creating the confrontation with Miguel; that they believed they were in
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imminent danger of death or serious bodily harm; that their only means of escape
was through the use of force against Miguel; and, that they did not violate the duty
to retreat or avoid the danger.
{¶32} At trial, testimony was presented that either Kramer, Pratt, or Strong
was at fault in creating the confrontation with Miguel. Pratt testified that he and
Strong both walked outside the bar, and upon seeing Miguel and Kramer in an
altercation, they both surrounded Miguel. Strong testified that, when he and Pratt
walked outside of the bar, Miguel and Kramer were down slightly away from the
bar, and he and Pratt went down by them. Detective Williamson testified that
Kramer told him that he approached Miguel outside the bar, and Miguel testified
that Kramer, Pratt, and Strong all insisted upon fighting him outside of Sinner’s
Bar. Additionally, Kramer testified that, when Pratt and Strong joined in the
confrontation, Miguel did swing the knife at them, but both of them advanced on
Miguel.
{¶33} Furthermore, the details of the altercation as testified to by Kramer,
Pratt, and Strong all contained marked differences, thereby diminishing the
credibility of their testimony that they could not retreat from the altercation and
that the injury Kramer inflicted upon Miguel was necessary for their self-defense.
{¶34} In viewing the totality of the evidence presented, we find that
Kramer did not present sufficient evidence to raise the issue of defense of others,
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such that the trial court did not commit plain error in failing to give the instruction.
Furthermore, even if the defense of others instruction would have been given, it is
an untenable position that the outcome of the trial would have been different, as
the jury did not give credibility to Kramer’s argument that he struck Miguel in his
own self-defense, thereby making it extremely unlikely that the jury would have
found Kramer struck Miguel in defense of Pratt or Strong.
{¶35} Accordingly, we overrule Kramer’s first assignment of error.
{¶36} In his second assignment of error, Kramer argues that he was denied
the effective assistance of counsel. Specifically, he contends that trial counsel’s
failure to request an instruction on the defense of others, where there were
sufficient facts presented to raise the defense, prejudiced the outcome of the trial.
We disagree.
{¶37} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio
St.3d 136, paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
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probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶38} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone
(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not
exist merely because counsel failed ‘to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.
Murray (1986), 477 U.S. 527.
{¶39} “In order to show that an attorney’s conduct was deficient or
unreasonable, the appellant must overcome the presumption that the attorney
provided competent representation by showing that the attorney’s actions were not
trial strategies prompted by ‘reasonable professional judgment.’” State v. Price,
3d Dist. No. 13-05-03, 2006-Ohio-4192, ¶7, citing Strickland v. Washington
(1984), 466 U.S. 668, 689. There is a strong presumption that trial counsel’s
decisions fall within the wide range of reasonable professional assistance, Id.,
citing State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, and decisions
related to trial strategy are insufficient to establish an ineffective assistance claim.
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State v. Tosco, 3d Dist. No. 9-08-21, 2009-Ohio-408, ¶ 36 citing State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, ¶101.
{¶40} Here, we found in Kramer’s first assignment of error that he did not
present sufficient evidence to entitle him to a defense of others jury instruction.
Thus, even if trial counsel would have requested such an instruction, there was no
requirement that it be given. Consequently, any failure of trial counsel to request
the instruction would not have affected the outcome of the trial.
{¶41} Accordingly, we overrule Kramer’s second assignment of error.
{¶42} In his third assignment of error, Kramer argues that his conviction
was against the manifest weight of the evidence. Specifically, Kramer asserts that
two other witnesses corroborated his testimony that he acted in self-defense, and
Miguel’s testimony was shown to be unreliable because it was not corroborated by
any other witnesses and because many portions of his testimony were shown to be
false. We disagree.
{¶43} When an appellate court analyzes a conviction under the manifest
weight standard, it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
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must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as
stated by Smith, 80 Ohio St.3d 89, quoting State v. Martin (1983), 20 Ohio App.3d
172, 175. Only in exceptional cases, where the evidence “weighs heavily against
the conviction,” should an appellate court overturn the trial court’s judgment. Id.
{¶44} In the case at bar, Miguel testified that Kramer instigated the
altercation outside of Sinner’s Bar as he was walking away; that he did walk back
towards Kramer after he left the bar, and even stated he wanted to fight Kramer;
that, however, Kramer, Pratt, and Strong all surrounded him, and he felt he was in
danger; that he did not threaten them with a knife, but removed his keys from his
pocket in order to defend himself; and, that Kramer broke a beer bottle on the
ground and stabbed him.
{¶45} On the other hand, Kramer testified that Miguel instigated the
altercation outside of the bar; that Miguel attempted to attack him with a knife;
that he hit Miguel with a beer bottle only to defend himself; and, that he told
Miguel that he needed to leave multiple times during the confrontation, but, once
Miguel brandished a knife, he believed that he was unable to safely retreat.
{¶46} Additionally, Pratt and Strong also testified on behalf of Kramer that
Miguel brandished a knife and was threatening them with it during the altercation.
However, both their testimonies indicated that they made a specific effort to join
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in the altercation, and Kramer also admitted that he also approached Miguel.
Furthermore, although Kramer, Strong, and Pratt all insisted that Miguel had a
knife, testimony was presented that a knife was not found with Miguel’s clothes,
at the scene of the altercation, or along the route in which Miguel walked after the
altercation, and, during Kramer’s initial interview with Detective Williamson, he
only indicated that Miguel had something in his hand; only later did Kramer
indicate that it was a knife.
{¶47} Therefore, although three eyewitnesses testified that Miguel’s
stabbing was in self-defense, each of these witnesses also presented some
testimony indicating that Kramer was the instigator of the altercation outside the
bar, and that Miguel was forced to defend himself once he was surrounded by
Kramer, Pratt, and Strong. Additionally, Pratt and Strong were Kramer’s friends,
thereby likely diminishing the credibility of their testimony. Furthermore, the
injuries sustained by Miguel are not consistent with Kramer’s account of the
altercation, as he testified that he merely broke the bottle over Miguel’s neck and
shoulder, but Miguel’s injuries, including a severe laceration to his jugular vein,
were more consistent with Miguel’s account of the altercation that Kramer stabbed
him with a broken bottle.
{¶48} Nevertheless, testimony was presented indicating that Miguel came
to Sinner’s Bar in a rage to confront Kramer. Miguel testified that he sent
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harassing and threatening text messages to Crawford and Kramer after he saw
them at the boxing event, and that he told Kramer he wanted to fight him when
they met outside Sinner’s Bar. Also, Miguel admitted to drinking several
alcoholic beverages that evening and ingesting illegal drugs, and Jared Sorg from
Primo’s Bar testified to Miguel’s intoxication and confrontational demeanor that
evening.
{¶49} However, testimony was also presented indicating that Kramer could
have instigated the altercation with Miguel, as he testified that he approached
Miguel outside Sinner’s Bar; that he was intoxicated that evening; and, that he was
also in an altercation that same evening with his ex-girlfriend and his cousin’s
boyfriend.
{¶50} Throughout the testimony presented, it was clear that there were two
versions of what occurred outside of Sinner’s Bar, and there was certainly
evidence presented to support both versions. Each of the eyewitnesses to the
stabbing, Kramer, Miguel, Pratt, and Strong, were impeached with their prior
criminal convictions, which diminished their credibility, and each gave testimony
that conflicted with each other’s version of the events. Accordingly, the resolution
of the case came down to a question of credibility, and, being that the jury is in the
best position to weigh witness credibility, State v. Dickinson, 3d Dist. No. 11-08-
08, 2009-Ohio-2099, ¶45, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio
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St.3d 77, and that there was a great deal of evidence indicating that Kramer was
not acting in self-defense, we cannot find that the jury clearly lost its way and
created a manifest miscarriage of justice. Consequently, we find that Kramer’s
conviction for aggravated assault was not against the manifest weight of the
evidence.
{¶51} Accordingly, we overrule Kramer’s third assignment of error.
{¶52} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
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