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Date: 08-19-2020
Case Style:
State of Ohio v. Mustafa Zafar,
Case Number: 19AP-255
Judge: Susan Brown
Court: IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Plaintiff's Attorney: Ron O'Brien, Prosecuting Attorney, Sheryl L.
Prichard, and Valerie B. Swanson
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
{¶ 1} This is an appeal by defendant-appellant, Mustafa Zafar, from a judgment
of conviction and sentence entered by the Franklin County Court of Common Pleas
following a jury trial in which appellant was found guilty of kidnapping and felonious
assault.
{¶ 2} On February 20, 2018, appellant and a co-defendant, Dahir Ali, were each
indicted on one count of kidnapping, in violation of R.C. 2905.01, and one count of
felonious assault, in violation of R.C. 2903.11. The indictment arose out of an incident
occurring at the Quick & Easy Mart, located at 4197 Cleveland Avenue, Columbus, on
February 11, 2018.
No. 19AP-255 2
{¶ 3} The matter came for trial before a jury beginning January 22, 2019. The
first witness for the state was Darrian Abrams, age 45. In February 2018, Abrams was a
maintenance worker at the Abby Lane Apartments, located across the street from the
Quick & Easy Mart.
{¶ 4} On Sunday, February 11, 2018, Abrams and a friend, Gary Benson, stopped
at the Quick & Easy Mart for Abrams to purchase a beverage. Abrams drove to the store
in his pickup truck. Abrams exited his vehicle, while Benson remained seated inside the
truck. Abrams entered the store and picked out a "Hard Mike's Lemonade." (Tr. Vol. II at
12.) The item cost approximately $1.65. Appellant was working behind the counter as a
clerk, and Abrams took the beverage to the counter.
{¶ 5} Abrams placed the drink on the counter and, as he began to "swipe" his
debit card, appellant informed him "there was an extra 50 cents." Abrams then "said,
[o]h, here you go. Robbing me of my 50 cents again." Abrams stated: "It's common. All
the corner stores do that. I don't know why, but they do. If you spend less than $5, they
take 50 cents from you." (Tr. Vol. II at 13.) Abrams testified that he and appellant "jawed
back and forth" and that appellant "threatened to hit me with a bat." (Tr. Vol. II at 14.)
{¶ 6} Abrams stated that another store clerk, later identified as co-defendant Ali,
then "grab[bed] me from behind." (Tr. Vol. II at 15.) Ali grabbed Abrams by the upper
arm, and Abrams "swatted his hand off me." Abrams used "an open palm push-off." (Tr.
Vol. II at 16.) Ali then punched Abrams in the face, and Abrams swung back at him.
Abrams then testified: "I was getting hit from behind the counter with a bat. I ended up
on the ground. They were kicking me, punching me, stomping me. I was begging them to
not hit me [anymore]." Abrams "tried to escape," but "[t]hey wouldn't let me." Abrams
stated he "almost got out," but "[t]hey drug me back in the store. And I'm begging them
to stop hitting me." During the incident, appellant locked the front entrance door of the
store. Abrams "thought they were going to kill me." (Tr. Vol. II at 17.) At trial, Abrams
identified appellant as the individual who was hitting him with an aluminum baseball bat.
{¶ 7} Abrams testified he did not swing at appellant and did not threaten the
store clerks. Abrams further stated he "wasn't aggressive. I didn't want to fight." Abrams
did not feel free to leave; he "tried to get up one time, and they started beating me again."
No. 19AP-255 3
Abrams asked for "their permission; can I get up and leave?" (Tr. Vol. II at 18.) The store
clerks eventually unlocked the front door, and Abrams was permitted to leave.
{¶ 8} During Abrams' testimony, the state played surveillance video from the
store depicting the incident. Abrams identified appellant on the video and stated
appellant hit him multiple times with the bat, including strikes to the arm, wrist, and leg.
Appellant "was asking me do I know who he is? Do you know who I am? Do you know
who I am?" (Tr. Vol. II at 30.) The other store clerk, Ali, is depicted kicking Abrams as he
lay on the ground. Abrams described attempting, at one point, to leave the store but he
was "yanked back in." (Tr. Vol. II at 33.) Abrams denied having any type of weapon, and
he denied ever threatening to shoot the clerks.
{¶ 9} After eventually exiting the store, Abrams sat on the hood of his vehicle in
the parking lot and dialed 911. Benson "couldn't believe what was happening." (Tr. Vol. II
at 39.) Police officers arrived within five minutes. Abrams was later transported to
Riverside Methodist Hospital for evaluation. As a result of the incident, Abrams suffered
"swelling on my legs, my back. Huge eye -- blood clots in it." (Tr. Vol. II at 40.) At trial,
the state introduced photographs of Abrams taken shortly after the altercation.
{¶ 10} The state also presented the testimony of Gary Benson, age 65. In the early
afternoon of February 11, 2018, Benson, a friend and neighbor of Abrams, rode with
Abrams to the Quick & Easy Mart on Cleveland Avenue. Benson remained inside Abrams'
pickup truck while Abrams went into the store.
{¶ 11} While sitting in the vehicle, Benson observed some individuals approach the
store, but they were "stopped" from entering. He then saw "a gentleman in a plaid shirt"
come up and lock the front door. (Tr. Vol. II at 68.) At trial, Benson identified appellant
as the individual he observed in the plaid shirt that day.
{¶ 12} Benson, who was beginning to worry about Abrams, then observed Abrams
near the front door "as if he was coming out, and he got snatched back," prompting
Benson "to get out of the truck." (Tr. Vol. II at 71.) Benson exited the pickup truck and
went to the door but "couldn't get in." He observed "the young man and the older guy
beating" Abrams. One individual was "swinging" a bat, while "the other one was hitting"
Abrams. (Tr. Vol. II at 72.) Benson identified appellant as the individual swinging an
aluminum bat at Abrams. Benson testified that Abrams "was on the ground. They hit
No. 19AP-255 4
him that hard to where he fell to the ground, literally." Benson testified that appellant
struck Abrams "[m]ultiple times" with the bat. (Tr. Vol. II at 73.) Benson did not observe
Abrams throw any punches or attempt to fight back during the incident.
{¶ 13} From outside the door, Benson heard Abrams state: "Man, please don't kill
me. I got eight kids." Abrams "was scared," and Benson began to knock on the door,
asking "[w]hat you all doing to my friend?" (Tr. Vol. II at 74.) When Abrams eventually
came out of the store "[h]e was hurt. He was limping. He couldn't hardly see." (Tr. Vol.
II at 75.) Following the incident, Abrams phoned police; an ambulance subsequently
arrived and transported him to the hospital.
{¶ 14} At the close of the state's evidence, counsel for appellant moved for a
judgment of acquittal under Crim.R. 29. The trial court denied the motion.
{¶ 15} Sohail Iqbal, the owner of the Quick & Easy Mart, testified on behalf of
appellant. Iqbal testified the store sells items such as "[b]eer, wine, cigarettes, and some
groceries and pop." (Tr. Vol. II at 105.) Around the time of the incident, Ali had just
started working at the store. Ali spoke Spanish, and Iqbal did not believe he could speak
English. Iqbal was not present at the store during the events of February 11, 2018, and
Iqbal has not seen Ali since that date.
{¶ 16} Iqbal has several security cameras in the store because "we feel unsafe
there." (Tr. Vol. II at 110.) Iqbal testified that individuals have stolen items from the
store. He stated there is a baseball bat behind the counter "for a safety measure, if we are
attacked with something, so that we can save ourselves." (Tr. Vol. II at 116.) A revolver is
also kept behind the counter. A sign inside the store indicates the store charges 50 cents
for any credit or debit card transaction under $5.00. Appellant's father works at the store,
but appellant sometimes fills in for his father at the store if he is not feeling well.
{¶ 17} Zafar Mehdi, the father of appellant, is employed at the Quick & Easy Mart.
Mehdi testified he suffers from diabetes and high cholesterol. On February 11, 2018,
Mehdi was not feeling well, so appellant went to the store to work in his place that day.
Mehdi testified that the store has experienced issues with theft. Two days prior to the
incident, Mehdi worked with a new employee named Ali. Mehdi communicated with Ali
in "Hindi." According to Mehdi, Ali understands English, but "he cannot speak" it. (Tr.
V0l. II at 137.)
No. 19AP-255 5
{¶ 18} Appellant, age 20, testified on his own behalf. Appellant occasionally works
as a cashier at the Quick & Easy Mart when his father is unable to work due to health
issues. Appellant testified that "[a]lmost every day somebody would be there to argue
with you, try to fight you, try to like steal some candy, stuff like that. Not try to rob you,
but like try to steal the stuff." (Tr. Vol. II at 146.)
{¶ 19} On February 11, 2018, appellant was working at the store with Ali, who
appellant met for the first time that day; appellant spoke with Ali in Hindi. Later that day,
Abrams came to the counter to purchase a "Mike's Hard Lemonade, 24-ounce drink."
Appellant testified he told Abrams the "total is $2.35. I see him pulling out his wallet. I
let him know, because he's going to use his card, I let him know that using your card for
less than $5 is going to charge you 50-cent-charge fee." (Tr. Vol. II at 154.) Abrams asked
appellant: "Why are you like charging me 50 cents? Why are you robbing us people? (Tr.
Vol. II at 155.) Appellant testified that he told Abrams: "Don't you understand? I tell him.
And he's like, I'll beat you up." (Tr. Vol. II at 156.)
{¶ 20} Appellant testified that Abrams "talks about my appearance, like why I'm
wearing a tight shirt." (Tr. Vol. II at 159.) Appellant responded: "Bitch, none of your
business." Abrams then "grabs the can. Did you call me a bitch? I said, Yes, I did call you
bitch." (Tr. Vol. II at 158.) According to appellant, Abrams then "said, I will kill you."
Appellant then reached back "to get the bat." (Tr. Vol. II at 159.) Appellant testified that
Abrams stated: "Hit me with a bat and I'll shoot you if you hit me with it." (Tr. Vol. II at
160.)
{¶ 21} At that point, Ali approached Abrams and "grabs him by the shoulder."
Appellant then observed Abrams "punching" Ali on his arm. (Tr. Vol. II at 160.)
Appellant then testified: "At that time, * * * all of a sudden in my mind, I'm like he's about
to hit him, about to punch him. Then my bat was already in my hand, so I'm like I got to
do self-defense now, because he's going to hurt us or something, so we got to take care,
you know." Appellant testified he was "pretty scared" because of Abrams' threats to "kill"
and "shoot" him. (Tr. Vol. II at 161.)
{¶ 22} Appellant then began striking Abrams with the bat. Appellant observed
Abrams "trying to get out" of the store. Appellant testified that Ali grabbed Abrams and
"brought him back in again, so * * * in my mind, I was like I got to settle this thing down,
No. 19AP-255 6
you know." (Tr. Vol. II at 163.) Appellant continued to swing the bat at Abrams.
Appellant testified he was "trying to aim for his legs." (Tr. Vol. II at 164.) Appellant hit
Abrams "three times on his leg." (Tr. Vol. II at 165.) Appellant then locked the door to
prevent other customers from entering. Appellant testified the situation was "controlled.
And I go back, try to confirm, Hey, you wanting to kill me, you want to shoot me. What
happen now? So I'm kind of like pumped." (Tr. Vol. II at 166-67.)
{¶ 23} Appellant testified he picked up the phone but did not call the police
because the phone "said 'no line.' " (Tr. Vol. II at 170.) Appellant subsequently told police
officers "we had a fight/argument over the 50-cent charge and it led to this." (Tr. Vol. II
at 178.)
{¶ 24} On cross-examination, appellant acknowledged telling a detective that
Abrams began cussing at him, but he did not remember what words Abrams used.
Appellant acknowledged that he began cussing back at Abrams. Appellant told the
detective that Abrams threatened to kill him but that he did not take it seriously.
Appellant explained that he was telling the detective: "I knew he wasn't going to like kill
me kill me in real life." (Tr. Vol. II at 188.) Appellant told the detective that store patrons
often make such threats to kill. Appellant acknowledged telling the detective he was mad,
"just out of my mind," and "[i]t wasn't respectful." (Tr. Vol. II at 191.)
{¶ 25} Appellant agreed he picked up the baseball bat before Ali came over and
grabbed Abrams by the shoulder. Appellant first struck Abrams in the upper body with
the bat, and he hit Abrams with the bat before he heard Ali say "gun." (Tr. Vol. II at 207.)
Appellant did not tell the detective he struck Abrams anywhere but on the legs.
{¶ 26} Following deliberations, the jury returned verdicts finding appellant guilty
of kidnapping and felonious assault. By entry filed April 29, 2019, the trial court
sentenced appellant to community control sanctions, including a three-year period of
community control, 33 days incarceration at the Franklin County Correction Center, and a
fine.
{¶ 27} On appeal, appellant sets forth the following three assignments of error for
this court's review:
[I.] AMENDED R.C. 2901.05 SHOULD APPLY
RETROACTIVELY TO THIS APPEAL.
No. 19AP-255 7
[II.] THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S R. 29 MOTION FOR
ACQUITTAL.
[III.] THE VERDICTS OF KIDNAPPING AND FELONIOUS
ASSAULT WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 28} Under the first assignment of error, appellant asserts amended R.C. 2901.05
should apply retroactively to this appeal. Appellant notes the Ohio General Assembly
enacted Am.Sub.H.B. No. 228 ("H.B. 228") on December 27, 2018, in which it amended
R.C. 2901.05 to now place the burden on the state (rather than the accused) to prove the
accused did not use force in self-defense.
{¶ 29} Appellant argues it is unclear from the plain text of the bill whether it was
the General Assembly's intent that the changes to R.C. 2901.05 be applied retroactively to
offenses committed prior to the effective date of the amendment. Appellant acknowledges
that, under R.C. 1.48, a statute is presumed to be prospective in its operation unless it is
expressly made retroactive. Appellant further argues, however, citing Griffith v. Kentucky,
479 U.S. 314, 328 (1987), the United States Supreme Court has held that a new rule for
the conduct of criminal prosecution is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in which the
new rule constitutes a clear break with the past. According to appellant, the changes by
H.B. 228 to R.C. 2901.05 reflect a new rule for the conduct of criminal prosecutions, i.e.,
the allocation of the burden of proof in certain types of cases, and that such rule
represents a clear break with the past.
{¶ 30} In response, the state notes the changes to R.C. 2901.05 took effect on
March 28, 2019, and the trial in this case began January 22, 2019 (i.e., the use of force at
issue occurred prior to the effective date of the amended statute, and the case was tried
months before that effective date). The state maintains the amendment at issue was not
expressly made retrospective and, therefore, is presumed prospective. We agree.
{¶ 31} Ohio courts addressing this issue, including this court, have held that the
change made by H.B. 228 "was not retroactive." State v. Ward, 10th Dist. No. 19AP-266,
2020-Ohio-465, ¶ 15 (because the defendant committed the offense prior to amendment,
No. 19AP-255 8
the former version of R.C. 2901.05(A) applied). See also State v. Whitman, 5th Dist. No.
2019CA00094, 2019-Ohio-4140, ¶ 11 ("Changes to R.C. 2901.05, effective March 28,
2019, do not apply retroactively to appellant's case" and, therefore, "[t]he statute as
amended does not provide for retroactive application."); State v. Koch, 2d Dist. No.
28000, 2019-Ohio-4099, ¶ 103 (rejecting appellant's reliance on Griffith in holding he
was "not entitled to retroactive application of the burden-shifting changes made by the
legislature to Ohio's self-defense statute, R.C. 2901.05, as a result of H.B. 228"); State v.
Fisher, 8th Dist. No. 108494, 2020-Ohio-670, ¶ 24, fn. 2 (because the defendant's trial
occurred before the effective date of the amendment, the amendments under H.B. 228
"do not apply").
{¶ 32} Based on the above cited authority, appellant was not entitled to retroactive
application of the burden shifting changes made by the legislature to Ohio's self-defense
statute pursuant to H.B. 228. Koch at ¶ 103. Accordingly, appellant's first assignment of
error is not well-taken and is overruled.
{¶ 33} Appellant's second and third assignments of error are interrelated and will
be considered together. Under these assignments of error, appellant challenges both the
sufficiency and manifest weight of the evidence in support of his convictions for
kidnapping and felonious assault.
{¶ 34} Appellant first raises an argument dependent on the one he raised under the
previous assignment of error. Specifically, appellant argues the evidence was insufficient
to support the convictions based on his contention that, in accordance with the provisions
of amended R.C. 2901.05, the prosecution failed to prove beyond a reasonable doubt he
did not use force in self-defense. In light of our disposition of the first assignment of
error, we reject appellant's initial premise that the state bore the burden of proving
beyond a reasonable doubt the force was not used in self-defense.
{¶ 35} A motion for judgment of acquittal, made pursuant to Crim.R. 29, "tests the
sufficiency of the evidence." State v. Darrington, 10th Dist. No. 06AP-160, 2006-Ohio5042, ¶ 15. As such, "an appellate court reviews a trial court's denial of a motion for
acquittal using the same standard for reviewing a sufficiency of the evidence claim." Id.
In considering a sufficiency of the evidence challenge, "the test is whether after viewing
the probative evidence and inferences reasonably drawn therefrom in the light most
No. 19AP-255 9
favorable to the prosecution, any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt." State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983).
{¶ 36} By contrast, in determining whether a conviction is against the manifest
weight of the evidence, an appellate court reviews "the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the 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." Id.
{¶ 37} The offense of kidnapping is set forth under R.C. 2905.01(A) and states in
part:
No person, by force, threat, or deception, * * * shall remove
another from the place where the other person is found or
restrain the liberty of the other person, for any of the
following purposes:
* * *
(2) To facilitate the commission of any felony or flight
thereafter;
(3) To terrorize, or to inflict serious physical harm on the
victim or another.
{¶ 38} R.C. 2903.11 defines the offense of felonious assault. R.C. 2903.11(A)(2)
states in part: "No person shall knowingly * * * [c]ause or attempt to cause physical harm
to another * * * by means of a deadly weapon." Pursuant to R.C. 2901.22(B) "[a] person
acts knowingly, regardless of purpose, when the person is aware that the person's conduct
will probably cause a certain result or will probably be of a certain nature."
{¶ 39} In order to establish self-defense, the following elements are required to be
shown: "(1) the accused was not at fault in creating the situation giving rise to the affray;
(2) the accused has 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 such
force; and (3) the accused must not have violated any duty to retreat or avoid the danger."
No. 19AP-255 10
State v. Gripper, 10th Dist. No. 12AP-396, 2013-Ohio-2740, ¶ 18, citing State v. Melchior,
56 Ohio St.2d 15, 20-21 (1978).
{¶ 40} We first address appellant's sufficiency challenge, which he raises in the
context of the claim he acted in self-defense. Again, to the extent appellant argues the
burden was on the state, under amended R.C. 2901.05, to show the accused was not
justified in using self-defense, we find such argument not well-taken based on our
disposition of the first assignment of error.
{¶ 41} We further note appellant does "not deny" that he and the other store clerk
(Dahir Ali) "beat the victim." (Appellant's Brief at 14.) Rather, appellant maintains his
actions were justified on grounds he acted in self-defense. Appellant points to evidence
that the store was subjected to consistent harassment by its patrons. He further argues
that Abrams' actions gave rise to the altercation. Specifically, appellant notes Abrams
accused appellant of robbery for charging the 50-cent store fee, and appellant contends
Abrams responded in a generally hostile manner.
{¶ 42} Under Ohio law, "[s]elf-defense is an affirmative defense." Gripper at ¶ 24,
citing State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831, ¶ 21, citing State v.
Calderon, 10th Dist. No. 05AP-1151, 2007-Ohio-377, ¶ 30. Further, "[a] review for
sufficiency of the evidence does not apply to affirmative defenses, because this review
does not consider the strength of defense evidence." Id., citing State v. Hancock, 108
Ohio St.3d 57, 2006-Ohio-160, ¶ 37. Accordingly, "appellant cannot challenge the jury's
rejection of his claim of self-defense on the ground of sufficiency of the evidence." Id. See
also State v. Colon, 8th Dist. No. 106031, 2018-Ohio-1507, ¶ 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."). We therefore will consider appellant's claim of self-defense when
reviewing his manifest weight challenge.
{¶ 43} Turning first to a consideration of the sufficiency of the evidence, the state
presented testimony that the victim, Abrams, went to the store counter to purchase a
beverage; Abrams complained to appellant about an extra 50-cent charge, and the two
individuals "jawed back and forth." Abrams testified that appellant "threatened to hit me
No. 19AP-255 11
with a bat." (Tr. Vol. II at 14.) As appellant reached behind him for an aluminum baseball
bat, the other store clerk, co-defendant Ali, approached Abrams from behind, grabbed his
arm and "yanked [him] around." (Tr. Vol. II at 28.) Abrams "swatted his hand off" with
"an open palm push-off." (Tr. Vol. II at 16.)
{¶ 44} Ali then punched Abrams in the face, and Abrams swung back at him; at
that time, appellant, while standing behind the counter, began striking Abrams with the
aluminum baseball bat, hitting Abrams initially in the neck area. Abrams attempted to
exit the store but "[t]hey wouldn't let me." He "almost got out," but they "drug [him] back
in the store" as he was "begging them to stop hitting me." Abrams eventually ended up on
the ground and recounted that appellant and Ali "were kicking me, punching me,
stomping me." Abrams was "begging them to not hit me," and he thought he "was going
to die." (Tr. Vol. II at 17.) After Abrams was pulled back inside, appellant locked the door
to the store. Abrams "tried to get up one time, and they started beating me again." (Tr.
Vol. II at 18.)
{¶ 45} Abrams testified he did not swing at appellant during the incident, nor did
he threaten the clerks. According to Abrams, he was not aggressive, and he "didn't want
to fight." (Tr. Vol. II at 18.) Abrams, who was treated at a hospital following the incident,
testified that he suffered swelling on his legs and back and that his eye was "[h]uge * * *
blood clots in it." (Tr. Vol. II at 40.) At trial, Abrams identified photographs of his
injuries. The state also introduced, during the testimony of Abrams, store surveillance
video depicting the events that day.
{¶ 46} Abrams' friend, Benson, similarly testified that Abrams attempted to get out
of the store but "he got snatched back," prompting Benson to exit the truck and go to the
door. (Tr. Vol. II at 71.) Benson observed "the young man and the older guy beating"
Abrams. (Tr. Vol. II at 72.) He saw appellant swinging an aluminum bat at Abrams,
striking him "[m]ultiple times." (Tr. Vol. II at 73.) Benson did not observe Abrams throw
any punches, and he heard Abrams plead with them, stating "please don't kill me. I got
eight kids." (Tr. Vol. II at 74.) Benson stated that Abrams was scared, and when he
eventually emerged from the store he was "hurt" and "limping." (Tr. Vol. II at 75.)
{¶ 47} This court and other Ohio appellate courts "have repeatedly held that a
baseball bat, wielded with the requisite intent, meets the definition of R.C. 2923.11(A) as a
No. 19AP-255 12
deadly weapon." State v. Clouse, 10th Dist. No. 11AP-857, 2012-Ohio-3471, ¶ 35. See also
State v. Hoffmeyer, 9th Dist. No. 23712, 2008-Ohio-2311, ¶ 14 (evidence that defendant
hit victim with an aluminum baseball bat, resulting in injuries to elbow and eye, sufficient
to convince average juror that defendant caused physical harm by means of a deadly
weapon under R.C. 2903.11(A)). Here, construing the evidence most strongly in favor of
the state, the trial court did not err in denying appellant's motion for judgment of
acquittal as the prosecution presented sufficient evidence to prove the elements of
felonious assault and kidnapping beyond a reasonable doubt.
{¶ 48} We therefore turn to appellant's primary argument, i.e., that his convictions
are against the manifest weight of the evidence based on his claim that he only utilized
force in lawful self-defense. In support, appellant points to Abrams' admission that he
and appellant engaged in an "animated" verbal altercation. (Tr. Vol. II at 26.) Appellant
contends this altercation caused him to fear for his life, necessitating the use of force.
Appellant cites his own testimony in which he stated he heard the other store clerk (Dahir
Ali) say the word "gun" during the incident. Appellant also maintains he only locked the
store door during the incident as a means of protecting himself.
{¶ 49} In response, the state argues the store video demonstrates appellant's
testimony was not credible. Specifically, the state contends it is clear from the video
Abrams was not resisting, that he ran for the door but was pulled back inside the store;
further, after Abrams was forced back inside, the video depicts appellant and Ali
continuing to strike, punch, and kick the victim as he fell to the ground and as he
remained in a passive position on the floor. The state also maintains it makes no sense
that appellant would lock the door to protect himself from the victim.
{¶ 50} A review of the video footage supports the state's argument that Abrams,
after the initial encounter with Ali, was not attempting to hit appellant or Ali; rather,
Abrams attempted to exit the store after Ali punched him in the face and appellant began
striking him from behind with the aluminum baseball bat. The video further shows
Abrams was able to open the door but was grabbed by Ali and brought back inside the
store. At that time, appellant continued to strike at Abrams with the baseball bat as Ali
grabbed and held Abrams by his jacket. The video shows Abrams falling to the ground
after appellant strikes him on the arm with the bat; while Abrams is on the ground,
No. 19AP-255 13
appellant, while holding the bat in both hands, strikes Abrams repeatedly on his legs.
Appellant then locks the front door as Ali is depicted punching Abrams multiple times on
the back with his fists. As Abrams remains on the ground, appellant stands over him with
the bat and, a few seconds later, Ali repeatedly kicks Abrams. Thus, the video exhibit
supports the state's argument that Abrams was not moving or resisting at the time but,
rather, was in a passive position on the floor.
{¶ 51} As noted under the facts, Abrams testified he argued with appellant over the
50-cent store fee, but he denied threatening appellant. While appellant testified he was
fearful based on threats made by Abrams during the incident, the trier of fact was free to
"believe or disbelieve any or all of the testimony presented." State v. Favor, 10th Dist. No.
08AP-215, 2008-Ohio-5371, ¶ 10, citing State v. Jackson, 10th Dist. No. 01AP-973, 2002-
Ohio-1257. In this respect, "[t]he trier of fact is in the best position to take into account
the inconsistencies in the evidence, as well as the demeanor and manner of the witnesses,
and to determine which witnesses are more credible." Id. Further, the Supreme Court of
Ohio has held that "words alone will not constitute reasonably sufficient provocation to
incite the use of deadly force in most situations." State v. Shane, 63 Ohio St.3d 630, 637
(1992). Rather, " '[t]he circumstances surrounding such language or words goes to the
issue of whether a defendant had an honest belief that he [or she] was in imminent danger
of death or great bodily harm.' " State v. Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702,
¶ 30, quoting State v. DiPaolo, 7th Dist. No. 92-B-55 (July 1, 1994). Thus, "[f]or example,
devoid of its context even a statement like 'I am going to kill you' might not create a bona
fide belief of imminent danger of death or great bodily harm." Id. In the present case,
appellant acknowledged telling the detective during an interview: "I knew he wasn't going
to like kill me kill me in real life." (Tr. Vol. II at 188.)
{¶ 52} Appellant also acknowledged that he struck Abrams in the upper body
multiple times with the bat but only indicated to the detective that he struck him on the
legs. Under Ohio law, there are "limitations to the application of self-defense," and the
defense "is not available unless the defendant shows that the force used to repel the
danger was not more than the situation reasonably demanded." State v. Johnson, 6th
Dist. No. L-08-1325, 2009-Ohio-3500, ¶ 12. Thus, " '[t]he force used to defend must be
objectively necessary and reasonable under the facts and circumstances of the case and in
No. 19AP-255 14
view of the danger apprehended.' " Id., quoting Martin v. Cent. Ohio Transit Auth., 70
Ohio App.3d 83, 93 (10th Dist.1990). Accordingly, "[w]hen one uses a greater degree of
force than is necessary under all the circumstances, it is not justifiable on the ground of
self-defense." Id., citing State v. McLeod, 82 Ohio App. 155, 157 (9th Dist.1948).
{¶ 53} Here, the jury could have reasonably rejected appellant's claim of selfdefense and, instead, found the testimony of Abrams credible as corroborated by the
testimony of Benson and the video exhibit which depicted appellant and the codefendant, Ali, repeatedly striking Abrams while he offered little or no resistance
(including footage showing his attempt to cover up on the ground as he was being struck).
See, e.g., State v. Cronin, 6th Dist. No. S-09-032, 2010-Ohio-4717, ¶ 39 (no miscarriage of
justice by jury in rejecting self-defense claim or finding defendant acted with excessive
force where evidence indicated defendant pummeled victim with bat as victim was
motionless or rolling around on floor); State v. Huff, 4th Dist. No. 06CA7, 2006-Ohio5081, ¶ 14 (jury reasonably rejected self-defense argument where evidence showed victim
dropped weapon but the defendant "nevertheless continued to strike [victim] with his
bat"). Based on the evidence presented, the jury could have also rationally rejected the
notion that appellant locked the door (i.e., locked the victim inside the store) to protect
himself from Abrams.
{¶ 54} On review of the record, we find the jury did not lose its way, nor create a
manifest miscarriage of justice, in finding appellant guilty of felonious assault and
kidnapping. Thus, we conclude appellant's convictions were based on sufficient evidence
and were not against the manifest weight of the evidence. Accordingly, appellant's second
and third assignments of error are overruled.
Outcome: Based on the foregoing, appellant's three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: