STATE OF OHIO v. KELLY PATTON

Akron, Ohio - Criminal defense attorney represented Defendant charged with one count of attempted murder, two counts of felonious assault, and one count of domestic violence.

On the morning of May 1, 2018, in the home they shared in Orrville, Patton stabbed

her long-time boyfriend, the victim, multiple times. Patton's hand was also injured during the

course of events. However, Patton and the victim described very different versions of events.

There was no previous history of violence between the couple.

{¶3} The victim maintained that he awoke to a pain in his neck. When he felt his neck,

it was wet. After he asked Patton to turn the light on, which she did not do, his forearm was cut.

The victim came to discover that Patton had a serrated knife. The victim was stabbed multiple

times as he was attempting to flee the residence. The victim denied stabbing Patton. Ultimately,

the victim was able to escape and a neighbor called 911. 2



{¶4} Patton presented a different version of events. She asserted that she awoke to a

metal object being rubbed across her chest. The victim was straddling her, and she believed that

he wanted her to have sex with him. She resisted and began struggling with him. At some point,

she grabbed a knife from the victim and swung it at him; however, the victim was able to get the

knife back. Patton felt a pain in her hand, and it went numb. She realized it was stuck to the

mattress. She pulled her hand free, went to the bathroom, put her hand under running water, and

took the knife out. She dropped the knife and wrapped her hand in a towel. A struggle ensued by

the door, with the victim blocking Patton from leaving. Ultimately, Patton knocked the victim off

balance, and they tumbled outside. Patton retreated back inside and locked the door.

{¶5} Patton was indicted on one count of attempted murder, two counts of felonious

assault, and one count of domestic violence. The matter proceeded to a jury trial in February 2019,

prior to the March 28, 2019 effective date of the current version of R.C. 2901.05(B), which

describes how self-defense is established. At the close of the State's case, defense counsel moved

for a judgment of acquittal as to the attempted murder count, which the trial court ultimately

granted.

{¶6} Following the presentation of the defense case, the jury found Patton guilty of the

remaining counts. In April 2019, defense counsel filed a motion for leave to file a motion for new

trial. Defense counsel argued that had Patton's trial been scheduled for March 28, 2019 or after,

she would have had the benefit of the amended version of the statute which provides that, when

"there is evidence presented that tends to support that the accused person used the force in selfdefense, * * * the prosecution must prove beyond a reasonable doubt that the accused person did

not use the force in self-defense[.]” R.C. 2901.05(B)(1). The prior version required that the

defendant establish the elements of self-defense by a preponderance of the evidence. See State v. 3



Williams, 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 10. The trial court denied the motion

and sentenced Patton to an aggregate term of two years in prison.

{¶7} Patton has appealed, raising three assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY HIS

FAILURE TO RAISE THE ISSUE OF THE CHANGE IN LAW REGARDING

SELF-DEFENSE AND ENSURING THAT [] MS. PATTON WAS ABLE TO

BENEFIT FROM THE CHANGE.

{¶8} Patton argues in her first assignment of error that her trial counsel provided

ineffective assistance of counsel by failing to raise the issue of the change in R.C. 2901.05(B) and

by failing to ensure that Patton was able to benefit from the change. From Patton's brief, it is

unclear what action she believes trial counsel should have taken on her behalf; however, we will

presume that she is asserting that trial counsel should have requested a continuance of the trial to

a date on or after the effective date of the amended statute.

{¶9} In order to prevail on a claim of ineffective assistance of counsel, Patton must show

that "counsel's performance fell below an objective standard of reasonableness and that prejudice

arose from counsel's performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998), citing

Strickland v. Washington, 466 U.S. 668, 687 (1984). "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.” Strickland

at 686. Thus, a two-prong test is necessary to examine such claims. First, Patton must show that

counsel's performance was objectively deficient by producing evidence that counsel acted

unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,

Patton must demonstrate that but for counsel's errors, there is a reasonable probability that the 4



results of the trial would have been different. Keith at 534. This Court need not address both

prongs of the Strickland test if the appellant fails to satisfy either prong. State v. Ray, 9th Dist.

Summit No. 22459, 2005-Ohio-4941, ¶ 10.

{¶10} Debatable trial tactics do not give rise to a claim of ineffective assistance of counsel.

State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 25. "As with other trial

matters, the decision whether to request a trial continuance is debatable, and involves a strategic

choice of counsel that falls within the realm of trial strategy and tactics that will not ordinarily be

disturbed on appeal.” (Internal quotations and citations omitted.) State v. Wynn, 2d Dist.

Montgomery No. 25097, 2014-Ohio-420, ¶ 90; see also In re A.M., 9th Dist. Lorain No.

19CA011492, 2020-Ohio-3138, ¶ 28, citing Wynn at ¶ 90. Thus, Patton cannot demonstrate that

her trial counsel's failure to request a continuance of the trial amounted to ineffective assistance

of counsel. Notably, whether the continuance would have been granted, and, even if it had been,

whether the trial court would have provided an instruction based upon the new statute is pure

speculation. Compare State v. Brown, 9th Dist. Wayne No. 19AP0004, 2020-Ohio-529, ¶ 23

(concluding that, when the offense at issue occurred prior to March 28, 2019, former R.C.

2901.05(A) applied, and it was the defendant's burden to prove, by a preponderance of the

evidence, that he acted either in self-defense or in defense of others) with Williams at ¶ 4, 10-32

(applying the new statute to conduct that occurred prior to the effective date when the parties

acquiesced to doing so).

{¶11} Accordingly, given the foregoing, as well as Patton's limited argument on appeal,

we conclude that she has failed to demonstrate that trial counsel's performance was deficient.

Thus, Patton has not demonstrated that she received ineffective assistance of trial counsel. See

Ray at ¶ 10. 5



{¶12} Patton's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CASE DUE TO

THE SUFFICIENCY OF THE EVIDENCE.

ASSIGNMENT OF ERROR III

THE JURY'S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶13} Patton argues in her second assignment of error that the trial court erred in failing

to dismiss all of the counts pursuant to Crim.R. 29(A) as there was insufficient evidence presented

to support them because the victim's testimony lacked credibility. Patton argues in her third

assignment of error that the jury's verdicts were against the manifest weight of the evidence.

Essentially, Patton asserts that the victim's version of events was not believable. Patton does not

appear to challenge any specific element of any of the offenses or argue that the weight of the

evidence favors that Patton acted in self-defense. Our analysis will be limited accordingly.

Because both assignments of error actually challenge the weight of the evidence, they will be

addressed together. See State v. McCormick, 9th Dist. Summit No. 29121, 2019-Ohio-2204, ¶ 20

("[T]he question of sufficiency does not concern itself with the resolution of evidentiary conflicts

or credibility determinations.”).

In determining whether a criminal conviction is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of witnesses and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

{¶14} "When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and 6



disagrees with the fact[-]finder's resolution of the conflicting testimony.” State v. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court

should exercise the power to reverse a judgment as against the manifest weight of the evidence

only in exceptional cases. Otten at 340.

{¶15} As mentioned above, the victim and Patton provided vastly differing accounts of

the events. Given those differences, credibility determinations would have been particularly

important in this matter.

{¶16} The victim met Patton at their mutual place of employment and the two began a

relationship. They lived together for approximately eight years before the assault at issue. The

couple had no history of violence. At the time of the assault, they were living together on McGill

Street in Orrville and Patton's unemployment benefits were about to run out. Patton also had a

life insurance policy for both herself and the victim that she paid the bill for. The policy was for

$100,000.00 and Patton was the beneficiary on the policy.

{¶17} In April 2018, the victim made arrangements with a friend to buy a house in

Wooster for the victim and Patton. That house needed work done, so the victim would frequently

go over and work on the house. The victim expected Patton to move into the house with him, but

Patton testified that she planned to find her own place. Around the time of the assault, Patton had

asked the victim for help with paying some debts she owed; however, the victim indicated he was

unable to help because he had already taken out a loan against his 401K to pay off some of her

other debts. Patton had also made a statement that she owed the IRS $10,000.00; however, Patton

denied that she owed the IRS any money.

{¶18} According to the victim, on April 30, 2018, the victim got home from work around

6:00 a.m., took a nap, and then went over to do some work on the house in Wooster. He stayed 7



there until around 9:00 p.m. before heading home to Orrville. The victim noticed that the TV was

not on in the living room, where Patton usually slept. However, Patton was on the daybed in the

living room. He went and took a shower, got something to eat, and then went to his room upstairs

to watch TV. After midnight, the victim fell asleep.

{¶19} He awoke in the night to his back hurting. He shifted around and noticed that Patton

was in bed with him, which was unusual. The victim dozed off and awoke when he felt pain in

his neck. He coughed and gagged. He thought maybe Patton had turned over and hit him in the

throat. He felt his neck and it felt wet. He asked Patton to turn the light on, telling her that he

thought she might have cut him with her ring, and he wanted to see how bad it was. Patton said

something about a nightmare and indicated she would turn a light on. She then told the victim that

she would look and see how bad the cut was. The victim was then cut on his forearm. The victim

could not see Patton and kept asking her to turn the light on. Patton did not turn the light on.

{¶20} As the victim was sliding out of bed towards the doorway, he heard Patton make

an "oomph” sound and he was cut through his fingertip. The victim fled the bedroom and headed

for the stairs. When he was on the first or second one, he heard Patton say that someone was in

the house. She sounded panicked. It was light enough that the victim could see, and he told her

there was not anyone in the house but them. Patton approached the banister and the victim reached

up and grabbed Patton's hands, they struggled a bit, and the victim felt the serration of a blade.

The victim shoved Patton against a wall and proceeded down the stairs.

{¶21} As he was trying to unlock the door, he felt a sharp pain below his shoulder blade

and then another sharp pain near his butt. Patton ended up against the front door. The victim

grabbed her, threw her across the room, and was able to make his way out the door. Patton

followed him outside and kept telling him to come back inside so she could help him. Patton 8



followed the victim into the grass but then went back into the house. The victim did not notice

Patton bleeding.

{¶22} The victim was going to head towards the gas station but was getting really cold

and could feel blood pouring down his back. The victim noticed cars going by and so went into

the middle of the road. He was clothed but did not have shoes on. The victim wore regular clothes

to bed because he liked to be ready to go when he woke up.

{¶23} Around 5:40 a.m., a man was on his way to work when he noticed the victim

wandering barefoot in the road. Concerned, the man called 911. The victim proceeded to the

porch of a nearby house and rang the doorbell. A woman came to the door and saw the victim,

who was holding his neck, bleeding, and asking for help. The woman described the victim as

appearing panicked. The woman also called 911.

{¶24} Police and paramedics arrived. The victim informed police that Patton was still

inside the residence. The victim was transported to a hospital for treatment of his injuries. He

required stitches to his neck, the area below the shoulder blade, and near his butt.

{¶25} The victim acknowledged that his statement to police was somewhat different than

his testimony; the victim did not inform the police of all the injuries that he testified to. In addition,

the victim's testimony about where in the house his injuries occurred was sometimes different than

what he told police. The victim explained that he only recalled the details later and that these

statements were taken while he was still in the hospital.

{¶26} Officer Ryan Mace with the Orrville Police Department was dispatched to the

scene. He found the victim on the porch on Park Street. The victim appeared shocked and

confused. He was holding his neck and had several lacerations on his body. The victim then

shared his version of events with the officer. 9



{¶27} Officer Mace proceeded to the victim's and Patton's home. At trial, a portion of

Officer Mace's body camera video detailing his meeting with Patton was played; however, it was

not admitted as an exhibit. Thus, it is not available for our consideration. Patton answered the

door holding a towel covered in blood. She was very emotional. When she was asked to drop the

towel, police discovered that she was bleeding from her hand. Patton asked police if they got

"him” and told police that the victim left the house with a knife. Officer Mace then went back to

see if the victim had a knife, but no knife was found on his person. Additionally, no knife was

found outside. Patton informed police that no one else was in the house. Because suspected blood

stains were found throughout the house, the Ohio Bureau of Criminal Investigation was brought

in to process the crime scene. A serrated knife was found in the upstairs bathroom and a kitchen

knife was found on the floor in a bedroom.

{¶28} When Officer Mace questioned the victim at the hospital, he denied stabbing

Patton. After speaking with the victim at the hospital, Officer Mace went to where Patton was

being treated to speak with her. Officer Mace described Patton as being very forgetful and unable

to really put the events in chronological order. A portion of Officer Mace's body camera video

from his interview with Patton at the hospital was also played at trial. This video was also not

admitted at an exhibit and so is also not available for this Court's review.

{¶29} Sergeant Cory Seiler reported that he interviewed Patton at the police station and

that she also provided a written statement. Patton gave confusing accounts of the events, despite

appearing very calm. Even when asked to describe her relationship with the victim she said both

that the victim was upset that they were probably going to break up and that they had never

discussed separating. She had difficulty putting the events in chronological order and indicated

that she did not remember a lot of things. She stated multiple times that she had memory issues. 10



She told police that the altercation began in the victim's bedroom while they were both in bed.

Patton awoke to a metal object being rubbed across her chest. Patton told police that the victim

wanted to have sex and Patton was resistant. She pushed the victim against the wall and the two

struggled. She was not sure about when she obtained the knife or if or where she stabbed the

victim. Patton initially did not remember where she was when she was stabbed in the hand and

later indicated that it occurred while she was in bed. She then ran into the bathroom and pulled

the knife out and wrapped her hand in a towel. Ultimately, the struggle proceeded downstairs.

Patton told police that the victim was like a hockey player blocking the door. At one point, the

victim became unbalanced and she was able to get him out of the house. Patton then locked the

door.

{¶30} After talking with both the victim and Patton, Sergeant Seiler found the victim to

be very consistent and Patton to be inconsistent; thus, he concluded that Patton was a suspect in

the assault.

{¶31} Samuel Troyer, a forensic scientist with the forensic biology and DNA sections of

the Ohio Bureau of Criminal Investigation, testified about the evidence that was analyzed from the

crime scene. Four blood stains were identified on the serrated knife: one on the handle, one near

the hinge, one along the back ridge, and one on the blade. In addition, a swab was taken from the

unstained portion of the handle of the serrated knife. The DNA from three of the stains was

consistent with the DNA standard from Patton. The victim was excluded as a contributor to those

samples. The fourth stain, from the blade of the serrated knife was a mixture that included DNA

consistent with both Patton's and the victim's. Patton's DNA was consistent with the major profile

found on the unstained portion of the handle; while male DNA was present in that sample, it was

present at too low of a level for comparison purposes. 11



{¶32} Blood stains were also found on the kitchen knife. The first was near the tip of the

blade and the second was near the middle of the blade. The unstained handle was also swabbed.

Patton's DNA was consistent with the DNA recovered from both stains found on the kitchen knife

and the victim was excluded as a contributor to those stains. The handle of the kitchen knife

contained a mixture that was consistent with both Patton's and the victim's DNA profile. Finally,

a piece of the mattress with blood staining on it was also tested. Patton's DNA was consistent

with that of the major contributor of the sample and the victim's DNA was consistent with that of

the minor contributor of the sample.

{¶33} Blood stains from various areas of the house contained DNA with a profile

consistent with that of Patton; the victim was excluded from being a contributor to those samples.

{¶34} Patton also testified in her defense. She testified that she had told the victim that

she was not moving with him to the new house and maintained she had been packing totes in

preparation for her move. She asserted she was going to look for employment, stay with a relative,

and relocate to somewhere near the new job.

{¶35} On April 30, 2018, Patton planned to go to her mom's house overnight because her

mom had a doctor's appointment the next day. However, she did not go that night because the

victim asked her to stay. Patton testified that she went to bed after the victim. She fell asleep in

the victim's bed and woke up when she felt something metal going across her chest. The victim

was straddling her, and she thought he wanted to have sex. Patton yelled at the victim to get off

her, but the victim became more aggressive. The victim was yelling and the two began to struggle.

Patton was afraid of the victim because he had never acted like that before. At one point, Patton

managed to get the knife and started swinging it. The victim was able to get the knife back and

Patton felt a pain in her hand, and it went numb. She realized it was stuck to the mattress. She 12



pulled her hand free and saw the victim in the doorway. When she looked again, he was gone.

Patton went to the bathroom and put her hand under running water and took the knife out. She

dropped the knife and wrapped her hand in a towel.

{¶36} Patton went towards the steps and saw the victim on the stairs. The victim then

pushed Patton. The victim went down the stairs and Patton did not follow. She hoped the victim

was going to leave. Patton then went downstairs, and the victim came up behind her and threw

her across the room. The victim was standing in front of the door blocking it. Eventually, Patton

was able to knock the victim off balance and they tumbled outside. Patton hurried back inside and

locked the door. She began looking for her phone but could not find it because it was dark. Patton

rinsed her hand again in the kitchen sink and rewrapped it. Patton then went into the basement to

flip the breakers. When she did so, the lights came on. Patton saw the victim outside and then

saw flashing lights from police cars. Patton did not go meet the police because she was afraid the

victim was still out there. Patton asserted that she was able to remember events better at the time

of trial. Patton required two surgeries on her hand and it still was not completely normal at the

time of trial.

{¶37} On appeal, Patton merely argues that the victim's version of events was incredible,

thereby challenging the jury's credibility determinations. See App.R. 16(A)(7). However, "it is

well-settled law that the trier of fact is in the best position to make credibility determinations when

evaluating the evidence presented at trial.” State v. Norris, 9th Dist. Summit No. 27630, 2016-

Ohio-1526, ¶18. The jury was able to observe the victim and Patton testify, and presumably was

able to view body camera video of Patton's encounters with police. Moreover, the jury heard

officer testimony that Patton's statements to police were often confusing and inconsistent leading

Patton to become a suspect. After a thorough and independent review of the record, we cannot 13



say that the jury lost its way in finding the victim's testimony more credible than Patton's. Patton

has not demonstrated that the jury's verdicts were against the manifest weight of the evidence.

{¶38} Patton's second and third assignments of error are overruled.

Patton’s assignments of error are overruled. The judgment of the Wayne County

Court of Common Pleas is affirmed.



Judgment affirmed