In the Supreme Court of Ohio

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IN THE SUPREME COURT OF OHIO

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State of Ohio, On Appeal from the Franklin County Court of Appeals, Plaintiff-Appellee, Tenth Appellate District Court of Appeals V. Case No. 13AP-816 Anthony Moses,

Defendant-Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTION

Ambrose Moses, IfI (0055231) (COUNSEL OF RECORD) 1900 Polaris Parkway, Suite 450 Columbus, Ohio 43240

Tel (614) 418-7898 Fax (614) 418-7298 Email: info MosesLaw.pro

COUNSEL FOR APPELLANT ANTHONY MOSES

Orly Ahroni, Esq. Columbus City Prosecutor 375 South High Street, 7th Floor Columbus, Ohio 43215 Counsel for Appellee State of Ohio, City of Columbus

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1 Table of Contents

Proposition of Law 1:

"Structural, fundamental, and reversible error occurs when the accused African American, after making a non-frivolous showing of questionable conduct and motives by the prosecutor, is denied an evidentiary hearing on his motion to dismiss due to selective prosecution. This is particularly true where the prosecutor's questionable conduct includes, but is not limited to,

1) the perceived race-based preference given by the prosecutor to the cross-filed complaint of the white complainant over that of the black complainant, and

2) the prosecutor's refusal to follow his policy and refer the black person's cross- complaint against the white prosecuting witness to an independent special-prosecutor for a probable cause determination."

Proposition of Law 2:

"Structural, fundamental, and reversible error occurred when the prosecutor, in interviewing ("interrogating") an unrepresented individual, concealed and otherwise failed to disclose to said individual that the decision had been made to prosecute that individual. It is impermissible for the prosecutor, as a lawyer, to interview ("interrogate") an unrepresented individual without informing the individual that charges have been approved against him and that he has the right to remain silent and to not incriminate himself."

Substantial Constitutional Question and Question of Public and Great General Interest - Page 3 Statement of the Case and Facts - Page 4 Argument - Page 8 Signature -- Page 18

Certificate of Service - Page 19

Exhibit 1 - Court of Appeals Judgment Entry - April 25, 2014 Exhibit 2 - Court of Appeals Decision - April 24, 2014

2 Constitutional Question and Question of Public and Great General Interest

This case presents both a question of public and great general interest and a substantial constitutional question. A. The Ohio Commission on Racial Fairness issued a report finding that there is a factual and statistical basis for the perception of racial discrimination in Ohio's criminal justice system. The failure of the city prosecutor, municipal court judge, and the court of appeals to address the is structural and fundamental error that goes to the integrity of Ohio's criminal justice system when it comes to the handling of cross- filed criminal charges between black and white citizens. Ohio's criminal justice system is biased against people of color, denies them fundamental fairness, and results in the wrongful conviction of innocent individuals as it did in this case.

B. The prosecutor concealed the fact that the decision to prosecute Moses had been made. Moses was unrepresented by counsel at the time. The prosecutor, as a lawyer, interviewed (`5nterrogated") an unrepresented individual without informing the individual that charges had been approved against them and that the individual was now talking to the agency that was pursuing criminal charges against said individual.

Both A and B above are substantial constitutional questions because they concern, but are not limited to, due process and equal protection. This implicates and denies the accused his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution."

Both A and B above are matters of public and great general interest because, as found by the Ohio Commission on Racial Fairness, these issues impact a great many Ohio citizens and residents.

The Ohio Supreme Court and the Ohio Bar Association commissioned The Ohio Commission on Racial Fairness. In 1999, after several years reviewing the fairness of Ohio's legal system, the Commission issued The Report of the Ohio Commission on Racial Fairness.' The Ohio Supreme Court, through the Commission's report, gave judges, prosecuting attorneys, defense attorneys, and Ohio citizens important insight and formal acknowledgment of the perceptions of racial bias and discrimination against minorities in Ohio's criminal justice system. It also acknowledged that there is a factual basis and statistical disparity which validate these perceptions.

1 The Report of the Ohio Commission on Racial Fairness, 1999, at p. 36; ht^:,•^^r^vsu^^rs mec^^^^ t,c^hic^.^ov!t'^iiic ati^^ ^fa ir ness_ftlinu su&. Statement of the Case and Facts

Appellant, Anthony Moses, appeals from a judgment entry of the Franklin County Court of Appeals affirming a judgment entry of the Franklin County Municipal Court entering judgment finding him guilty of assault and disorderly conduct. Moses asks that this Court reverse the court of appeals' judgment entry and

issue a just and appropriate order which will reverse the Franklin County Municipal

Court's Judgment finding him guilty and remand this case to the trial court with an order

to conduct an evidentiary hearing on the motion do dismiss due to selective prosecution

and, if necessary, to conduct a new trial.

STATEMENT OF THE FACTS

On or about August 18-19, 2012, Anthony Moses was working as an

entertainment DJ at The Ugly Tuna Saloona, which was a bar near The Ohio State

University's main campus in Columbus, Ohio.

On or about August 18-19, 2012, Nicholas D. Klacik ("Klacik") was a 21-year-old,

Caucasian bar patron at The Ugly Tuna Saloona who, according to police records, was

intoxicated after having consumed a few beers at his apartment with his roommates and then consuming more beer at The Ugly Tuna Saloona shortly after arriving.

At approximately 2:01 am, Moses was playing the last song of the night. Moses was onstage, behind his DJ table, which is a 5 foot table with all of his equipment on it.

At approximately 2:03 am, during Moses' performance, Nicholas D. Klacik, while holding a bottle of beer in his left hand, stepped around the end of Moses' DJ table,

4 stage left, and approached him both verbally and physically in an aggressive and threatening manner.

Klacik, beer in hand, came up behind the table and leaned over Moses' dance

partner's shoulder and said to Moses, "This is some pussy music... turn that shit off!"

During the incident, Klacik said this phrase a few times as he leaned into, pressed and

pushed Moses with his body.

While it is common and expected that patrons will make personal song requests,

Klacik was intoxicated, aggressive, disrupting the show, out of control, and did not even

request a song. Rather, Klacik was a heckler who had gotten onto the stage and was

disrupting the show. As an entertainer, Moses knows and expects that heckling can

occur. The problem here was that Klacik had made it onto the stage and behind the DJ

table. And, security had already left the stage to help patrons exit the bar. This left

Moses onstage and unprotected from the scenario of an intoxicated, heckler getting

onstage and behind the DJ table.

Klacik's verbal hostility and his physical aggression towards Moses were threatening and made Moses fearful that Klacik was going to do harm to Moses and

Moses' equipment. Moses used his left arm to shield his equipment and to create a buffer to keep Klacik off of him. Moses stated to Klacik'"chill out bro, we all having a good time". Klacik then stated something to the effect of "that is bullshit..." as he continued to lean into and push Moses with his body.

As an entertainment professional, Moses sometimes uses humor and peer pressure from the crowd to respond to hecklers, calm patrons and diffuse conflict

5 situations. Moses attempted to continue closing out his show. With Klacik continuing to

push and press against him, Moses spoke into his microphone and said to the crowd,

"This gentleman thinks this is some pussy music and I should turn it off, (the crowd

booed) maybe that's because he ain't gettin' no pussy" (the crowd laughed and

applauded).

Kiacik`s physical aggression escalated as he pressed and pushed his body

against Moses and kept reaching and attempting to take the microphone out of Moses'

right hand. Moses was cornered behind his DJ table, because Klacik was blocking the

only way in and out from behind the DJ table. (This is akin to a customer coming

around and cornering a McDonald's employee behind the counter.)

Moses, speaking over the microphone, stated to Klacik, "You got the count of

three to back up off me". Klacik then leaned in further on Moses. Moses counted to 3.

At the count of 3, Klacik lunged and was within inches of Moses' face.

Klacik was leaning on, pushing up against Moses, and attempting to forcefully

take the microphone from Moses' hand. Klacik's continued leaning, pushing, touching, and attempts to forcefully take the microphone from Moses' hand was unwelcomed, offensive, and threatening.

Moses was forced to defend himself and his equipment from harm due to Klacik's continued aggressive conduct and refusal to leave the restricted area by using his left arm to push Klacik off of and away from his (Moses') body.

6 Moses was able to push Klacik back around to the front of the DJ table while Moses remained behind the DJ table. This created space between them and the DJ table again provided a buffer between Moses and Klacik.

Klacik then threw down his beer bottle, clenched his fists, and charged back around the DJ table towards Moses and raised his clenched fist to strike Moses.

Moses, fearing that Klacik was about to strike him, hit Klacik one time in the face.

Moses' hand was injured defending himself against Klacik's physical aggression. Klacik fell back against the wall.

Klacik, again charged at Moses, who still had nowhere else to escape. This time,

Klacik grabbed a hold of Moses and the two fell to the ground. Moses, not knowing whether Klacik had a knife or other weapon in his possession, and in an attempt to protect himself, was able to get Klacik in a hold until security arrived and removed

Klacik from the stage area. Security personnel made their way behind the DJ table and pulled Klacik up off of Moses.

Months later, on October 25, 2012, Klacik went to the Columbus City

Prosecutor's Office and initiated false criminal charges against Moses accusing him of assault and disorderly conduct.

On November 6, 2012, at 9:00 am, the Columbus City Prosecutor's Office approved the filing of criminal charges against Moses. Hours after 9:00 am, Moses went to the Columbus City Prosecutor's Office and attempted to initiate criminal charges

7 against Kiacik. Moses did not know that the City Prosecutor had approved the filing of

charges against him.

On November 6, 2012, the Columbus City Prosecutor interrogated Moses without

the presence or assistance of his attorney or a signed waiver of legal representation.

Appellant Anthony Moses hereby appeals to the Supreme Court of Ohio to review this case.

Argument Proposition of Law 1

1) the perceived race-based preference given by the prosecutor to the cross-filed complaint of the white complainant over that of the black complainant, and

2) the prosecutor's refusal to follow his policy and refer the black person's cross-complaint against the white prosecuting witness to an independent special-prosecutor for a probable cause determination."

The Ohio Commission on Racial Fairness concluded that many minorities perceive that Ohio's criminal justice system discriminates against them because of their race or minority status. While the Commission recognized that racial discrimination

^ does not account for all differences in treatment of white people and minorities, it concluded that a factual basis for this perception clearly exists.2

The Commission recognized that many factors affect the sentence ultimately imposed by a sentencing judge, including but not limited the prosecution decision to charge and what charges are brought.3 (emphasis added)

The Commission concluded that if our system is to survive, if it is to be respected and obeyed, all of the barriers to universal perceptions by significant majorities of all groups within our citizenry that the system is just must be destroyed. If that means spending more money, adding additional procedures, or eliminating objectionable practices, it is a small price to pay to reach that goal.¢"

The court is the institution. The trial judge, the prosecutor, and the defense attorney are all officers of the court with different roles but with a common duty to insure that the accused, in this case, Anthony Moses, received, at a minimum equal protection of the law and due process.

In this case, the trial judge and the prosecutor got it wrong concerning the perception and the impact of racial bias and discrimination on the matter before them. Their failure to adequately and fairly address the perception and the impact of racial bias and discrimination tainted the proceedings from the initiation of criminal charges all the way through the trial of this case.

The trial judge and the prosecutor became hung up and emotional about the perception and the impact of racial bias and discrimination in this case and denied there was a showing of racial bias and discrimination when the maiority of Moses' motion to dismiss actually dealt with non-racial factors.

Anthony Moses asked the trial court to dismiss the misdemeanor complaint against him based upon three (3) factors --

2 Id. 3 Id. ' Id. at 74.

9 1) the Columbus City Prosecutor's Office selective prosecution of African Americans in situations involving cross-filed charges where one individual is an African American and the other is a Caucasian;

2) the Columbus City Prosecutor's impropriety and denial of substantive and procedural due process in interviewing/interrogating Anthony Moses without the assistance and presence of counsel when, unbeknownst to Anthony Moses, the Columbus City Prosecutor's Office had already decided to prosecute him. The City Prosecutor interviewed Moses under the guise of reviewing Moses' complaint seeking criminal charges against Nicholas Klacik when the City Prosecutor already knew Moses' complaint against Klacik was going to be denied because the City Prosecutor had already decided to prosecute Moses on the cross-filed complaint; and

3) the Columbus City Prosecutor's Office failed to assign Moses' complaint to a special prosecutor for probable cause purposes as required by the Columbus City Prosecutor's own understood policy.

On or about October 25, 2012, Nicholas Klacik gave the Columbus City Prosecutor a written summary of the incident.

On or about November 6, 2012, Anthony Moses gave a written summary of the incident.

The Columbus City Prosecutor's Office appears to have no written policy concerning cross filed complaints. Rather, according to Senior Assistant City Attorney Robert Tobias, "It is kind of an understood policy."

The City Prosecutor's "understood" policy appears to mean, at least in part, that African Americans are viewed as less credible than Caucasians when it comes to the City Prosecutor's exercise of discretion in prosecuting criminal charges arising from cross-filed complaints. The "understood" policy also appears to mean that staff within the City Prosecutor's Office may manipulate and mischaracterize police reports to support their decision to prosecute African Americans. This is evidenced by the City

10 Prosecutor's documented actions of mischaracterizing and misapplying statements from Columbus Division of Police Preliminary Investigation Report No. 120706493.1.

The City Prosecutor attempts to make it appear that the sober, 45-year-old, African American man, with no criminal record, and who was at work at the time of this incident, is less credible than the intoxicated, 21-year-old, Caucasian college student, who had just finished "pre-gaming" (i.e. pre-drinking) with his roommates, climbed onto the stage, got behind the DJ table, and became verbally and physically hostile and aggressive towards the entertainment DJ, to wit, Anthony Moses. The City Prosecutor does this by deliberately mischaracterizing and misapplying the evidence. He also misapplied and otherwise failed to apply the law, to wit, Columbus City Code 2317.11(B)(1) to the conduct of Nicholas Klacik. (Of course the prosecutor has some discretion. But that discretion is not unlimited and it should not be used systematically to the detriment of African American citizens who have committed no criminal offense.)

In this case, a Senior Assistant City Attorney, to wit, Robert S. Tobias, Director of the Prosecution Resources Unit, engaged in questionable conduct by mischaracterizing and misapplying statements set forth in Columbus Division of Police Preliminary Investigation Report No. 120706493.1. Assistant Prosecutor Tobias' written evaluation is inconsistent with an obiective search for the truth and connotes an effort by the Columbus City Prosecutor's Office to a) shade the truth, b) impugn the integrity and credibility of Anthony Moses - the sober victim acting in self-defense while at work, and c) bolster the credibility and excuse the unlawful behavior of Nicholas Klacik - the intoxicated young instigator and aggressor.

In Columbus Division of Police Preliminary Investigation Report No. 120706493.1, Officer Marcia Ulrich states "The victim was intoxicated." The "victim" refers to Nicholas Klacik, who is the prosecuting witness in this case. Officer Ulrich further states, "The witnesses did not appear to be intoxicated." The "witnesses" refers to Mr. Klacik's roommates Graham McCready and Steven Stanislaw, who are also named as witnesses in this case by the Columbus City Prosecutor.

11 Senior Assistant City Attorney Robert S. Tobias, after reviewing Columbus Division of Police Preliminary Investigation Report No. 120706493.1, wrote in his evaluation that "In the related cross file complaint, the 2 wits are friends with Nicholas Klacik and the police report states that they were not intoxicated while Klacik appeared intoxicated." Tobias goes on to state that, "R supposedly was intoxicated". "R" refers to Klacik.

Prosecutor Tobias' statements concerning the police report are incorrect and misleading. Officer Ulrich did not qualify or equivocate concerning Klacik's intoxication. The report stated that Klacik "was" intoxicated. The report did not state that Klacik "appeared" intoxicated. Further, the report did not state that Klacik was "supposedly" intoxicated.

"Supposedly" is defined as an adverb which means "according to what is generally assumed or believed". (The word is often used to indicate that the speaker doubts the truth of the statement.)

Tobias' mischaracterization of the Columbus Division of Police Preliminary Investigation Report shades the truth and unfairly impugns the integrity and credibility of Anthony Moses. Such conduct by the City Prosecutor is unwarranted and unjust. Tobias had no evidence which supported him changing the words and meaning of the Columbus Division of Police Preliminary Investigation Report as it relates to the intoxication of Nicholas Klacik or the other witnesses.

The prosecutor enjoys a well-recognized presumption that he exercises his charging discretion properly. How fair, just, or reliable is that presumption when senior prosecutors shade the truth in their evaluations and decisions to charge? Is that due process? Does that protect innocent citizens from being subjected to criminal prosecution for crimes they did not commit?

Instead of setting forth objective facts and reports in his evaluation, Tobias, a Senior Assistant City Attorney (and his staff), chose to painfully twist the statements therein to fit his and the Columbus City Prosecutor's custom, pattern, and practice of

12 prosecuting African Americans in cross file situations where one party is African American and the other is Caucasian.

On November 6, 2012 at 9:00 a.m., Assistant Prosecutor Melissa Hicks (aka Staff Member MAH) made the decision to file one count of DC and one count of assault on a warrant against Anthony Moses. She made this decision to file charges and prosecute before she met with Anthony Moses later that morning on November 6, 2012.

Prosecutor Hicks and the Columbus City Prosecutor's Office did not follow their own understood policy:

• On November 6, 2012, when Prosecutor Hicks met with, interviewed, and interrogated Anthony Moses, she did not advise him that she had already approved the filing of criminal charges against him on the cross-filed complaint. • Prosecutor Hicks did not require Moses to complete a Waiver of Privilege. • Hicks did not suggest that Moses contact an attorney and discuss the Waiver of Privilege form with an attorney before signing the form. • Hicks did nothing to protect Moses' rights. The Columbus City Prosecutor's Office did not assign Moses' complaint to a special prosecutor.

All in all, Hicks and the Columbus City Prosecutor's Office did not follow their own understood policy.

Ohio courts have held that, given the well-recognized presumption that prosecutors exercise their charging discretion properly, a defendant must "demonstrate a 'colorable entitlement' to a selective prosecution claim before a trial court is required to grant an evidentiary hearing." State v. Wasmus (April 27, 1995), Franklin App. Nos. 94APA07-1013 and 94APA07-1014, unreported, citing State v. Perotti (May 15, 1991), Scioto App. No. 89CA1$45, unreported;. As the Tenth District Court of Appeals has agreed, in Perotti, the Fourth District Court of Appeals defined "colorable entitlement" as

13 the presentation of °'sufficient facts to take the question past the frivolous state and raise a reasonable doubt as to the prosecutor's motive and purpose."

Moses made a showing of sufficient facts to demonstrate that the question was not frivolous. The factual statements and documents provided to the trial court with the motion were not contested or denied by the City Prosecutor.

As stated by the Ohio Commission on Racial Fairness, "If our system is to survive, if it is to be respected and obeyed, all of the barriers to universal perceptions by significant majorities of all groups within our citizenry that the system is just must be destroyed. If that means spending more money, adding additional procedures, or eliminating objectionable practices, it is a small price to pay to reach that goal."5 [emphasis added] Moses provided objective facts and evidence that raised reasonable doubt as to the prosecutor's motive and purpose.

It is often stated that deference is given to the trial judge or the trier of fact on certain issues because they were there and observed the demeanor, body language, and behavior of witnesses in a way that a reviewing court cannot. There are other parties present in the trial court. Notably, the accused and defense counsel. Defense counsel is also an officer of the court. Moses' attorney was Ambrose Moses, III. Attorney Moses had the impression that the trial judge and the chief prosecutor did not want to discuss any actual facts that were presented as evidence of the prosecutor's questionable motives and purpose. Defense counsel had attached correspondence and documentary evidence he received from the prosecuting attorney to the motion. The trial judge and chief prosecutor seemed intent upon not discussing those facts on the record. Truth matters. Was there a policy or not? Did they follow the policy or not?

If there is a policy requiring the assignment of a special prosecutor, shouldn't the policy be applied equally to complaints filed by African Americans as it does to complaints filed by Caucasians? Filing of a complaint is governed by state statutory law. The ultimate decision of whether to file and prosecute charges

5 The Report of the Ohio Commission on Racial Fairness, 1999, at 74.

14 before the court is a decision for the prosecutor. If African Americans effectively are denied the right or opportunity to cross-file a complaint against a Caucasian, there is a deprivation of substantial rights.

Assistant Prosecutor Hicks and the Columbus City Prosecutor's Office did not follow their own understood policy which required them to assign Moses' criminal complaint against Klacik to a special prosecutor for probable purposes. The prosecutor's conduct denied Moses equal protection of the laws and denied him due process.

Moses, the same as any other victim of crime, was entitled to file criminal charges against Klacik and to have those charges reviewed, objectively and in good faith, for a determination of probable cause to prosecute Klacik for Klacik's criminal conduct. The Columbus City Prosecutor, having already decided to prosecute Moses, and without informing Moses of that decision, denied Moses' complaint against Klacik. The Columbus City Prosecutor also did not assign Moses' complaint to a special prosecutor for probable cause purposes.

This is important because Moses, as he testified at trial, maintains that he is innocent of any criminal conduct towards Klacik. On August 19, 2012, Moses was working and it was Klacik who, while intoxicated, became disruptive of the entertainment performance, and initiated the affray that resulted in Klacik being punched. Moses had no motive or intention to start or cause an affray with Klacik. At trial, video clips were admitted into evidence which show that Moses' pattern and practice is to invite and welcome song requests and entertaining interactions with bar patrons. As evidenced by the video clips, that is part of his usual show.

The most likely occurrence of events on August 19, 2012 was that Klacik was intoxicated, lost control of his actions, and engaged in disruptive conduct that escalated into a threat of physical harm towards Moses. Klacik and his roommates had pre- gamed and were consuming more alcohol at the bar. The roommates testified that they did not watch or see Klacik as he went from their table to the stage. They noticed the music go down (they say turned off) and saw a punch. They had no accurate

15 recollection of timing, sequence, and other important details The prosecutor, in closing argument, stated that their failure to recall such details was irrelevant because it occurred nearly a year prior. In reality, they most likely didn't recall due to their alcohol consumption and the fact that Klacik was untruthful about what occurred.

Thus, it appears that the prosecutor, having decided to prosecute Moses, did not want to have a determination that Klacik had engaged in criminal conduct towards Moses a) established by a finding of probable cause, and b) used by Moses in maintaining his innocence and defending against the false charges being pursued by the prosecutor.

If Klacik's conduct on August 19, 2012 supported probable cause that Klacik had engaged in criminal conduct towards Moses, the trier of fact and the court could find reasonable doubt as to the state's charge of assault and disorderly conduct against Moses. Further, Klacik's criminal conduct, to wit, disorderly conduct and attempted assault, would support a finding that Moses acted in self-defense when he hit Klacik in order to stop Klacik from hitting him (Moses).

Proposition of Law 2

Where the prosecutor had decided to charge Moses, it was structural, fundamental, and reversible error for the prosecutor to interrogate Moses without the presence or assistance of his attorney or without obtaining a waiver of legal representation because Moses was unrepresented and had constitutional rights to remain silent and to not incriminate himself. The prosecutor's conduct was dishonest.

On November 6, 2012 at 9:00 a.m., Assistant Prosecutor Melissa Hicks made the decision to file one count of DC and one count of assault on a warrant against Anthony Moses. She made this decision to file charges and prosecute before she met with Anthony Moses later that morning on November 6, 2012.

Assistant Prosecutor Hicks and the Columbus City Prosecutor's Office did not follow their own understood policy. More importantly, they denied Moses the

16 constitutional protections of substantive and procedural due process, the right to counsel, and the right to not give testimony or evidence against himself. After having decided to prosecute him, they interrogated him under false pretenses. The false pretense being that they were interviewing him, in good faith, for purposes of evaluating his complaint against Klacik.

• Moses had no experience being the accused in a criminal case. • On November 6, 2012, when Prosecutor Hicks met with, interviewed, and interrogated Anthony Moses, she did not advise him that she had already approved the filing of criminal charges against him on the cross-filed complaint. • Prosecutor Hicks did not require Moses to complete a Waiver of Privilege. • Hicks did not suggest that Moses contact an attorney and discuss the Waiver of Privilege form with an attorney before signing the form. • Hicks did nothing to protect Moses' rights. • The Columbus City Prosecutor's Office did not assign Moses' complaint to a special prosecutor.

Hicks and the Columbus City Prosecutor's Office denied Moses his right to counsel and his right against self-incrimination. The court of appeals acknowledged that Moses' meeting with the prosecutor was used to confirm the identity of the person against whom the prosecutor had decided to file charges.

The constitutional deprivation by the prosecutor affected and denied substantial rights and protections to Moses. The prosecutor's conduct, as well as the trial judge's failure to remedy the situation, also affected the fairness, integrity or public reputation of judicial proceedings, generally, and in this case, specifically. Wherefore, Anthony Moses asks that the Court accept his case for review. There are important and significant issues that the Court can address in this case for the benefit of Moses as well as many other Ohio citizens.

17 Respectfully^ submitted,

%;n` ^-- Ambrose Mc , I I I (0055231) 1900 Polaris Parkway, Suite 450 Columbus, Ohio 43240 Tei (614) 418-7898 Fax (614) 418-7298 Email: iinfoEosesLa^

COUNSEL FOR APPELLANT ANTHONY MOSES

18 CERTIFICATE OF SERVICE

I certify that copy of the foregone document was served upon the following this 9th day of June, 2014 via regular U.S. Mail, first class, postage prepaid:

Orly Ahroni, Esq. Columbus City Prosecutor 375 South High Street, 7th Floor Columbus, Ohio 43215 Attorney for Appellee State of Ohio, City of Columbus

Ambrose Moses, tlI (0055231) Attorney for Appellant Anthony Moses

19 0A104 - P72 I l IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff Appellee, No. 13AP-816 (M.C. No. 2012 CRB 29789) V. ®00 (REGULAR CALENDAR) 0 Anthony Moses, a a `l) Defendant-Appellant.

r ^ JUDGMENT ENTRY NLO a For the reasons stated in the decision of this court rendered on April 24,

C) 2014, appellant's eleven assignments of error are overruled. It is the judgment and order C ^ of this court that the judgment of the. Franklin County Municipal Court is aff'irmed. Costs

0 assessed to appellant. t^ 0 LUPER SCHUSTER, J., SADLER, P.J., and CONNOR, J. U ^ ^ s 1S/ JLTDGE ^

0 L) .® 0 ^

0 c^

cu ^ OA104 - P73

®00 Tenth District Court of Appeals ®0 a. Cl) Date: 04-25-2014

Case Title: STATE OF OHIO -VS- ANTHONY MOSES a: 0 N Case Number: 1 3AP®®0816

Type: JEJ - JUDGMENT ENTRY 0 N ^

0 (3 So Ot•dered 0

as U ^ ^' ^^^ ^^•^ t^{^ a^x CL S

0 ls/ Judge Betsy L. Schuster 0 U a ^ 0 Elecironically signed on 2014-Apr-25 page 2 of 2 a ^ 0 e.) S ^ Ri LL [EXHIBI T 2 IN I'HE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appellee, No. 13AP-816 (M.C. No. 2012 CRB 29789) to V. ^ 0 ® ® (REGULAR CALENDAR) a Anthony Moses,

Defendant-Appellant. a m In <1i ^ D E C I S I O N C14 ^ ^. Rendered on April 24, 2014 r ® C^ Richard C. I'f eiffer, Jr., City Attorney, and Orly Ahroni, for appellee. 0 ^ ^ ® Anabrose Moses, III, Y for appellant.

V ^ APPEAL from the Franklin County Municipal Court

a. a LUPER SCHUSTER, J.

0 {11} Defendant-appellant, Anthony Moses, appeals from a judgment of the ^ 0 0 Franklin County Municipal Court finding hini guilty of assault, in violation of R.C. 2903.13(A), and disorderly conduct, in violation of Columbus City Code 2317.11(A)(1). 0 ^ For the following reasons, we affirm the judgment of the trial court. c 0 1. Facts and Procedural History c^ {q[ 2} The evidence presented at trial showed that on August 19-20, 2012, the ^ victim, Nicholas D. Klacik, went to the Ugly Tuna Saloona in Columbus with two of his w roommates, Graham McCready and Steven Stanislaw. Appellant was working as a DJ at the bar, performing on an elevated stage that had a DJ table located in the center. 1131 Testimony at trial indicated Klacik, McCready, and Stanislaw sat at a table approximately 25-30 feet from the stage drinking beer. Shortly after arriving at the bar, Klacik walked to the DJ stage to request appellant play a specific song. Klacik and No, 13AP-816 2

appellant got into a verbal confrontation. Appellant then turned off the music and said into the microphone that he would give Klacik until the count of three to '"get out of my face." (July 22, 2013 Tr. 69.) Appellant then punched Klacik in the face. Klacik suffered a chipped tooth and damage to his lip. {q[ 4} Moments after the altercation, the bar's security staff removed Klacik from the bar. After leaving the bar, Izlacik, McCready, and Stanislaw walked back to ttaeir apartment. Soon thereafter, McCready went to a nearby house where he saw a police officer and asked her to come to the apartment. The officer took statements from Klacik, McCready, arid Stanislaw. Because appellant's identity was unknown, the officer referred Izlaick to the prosecutor's office. {q[ 5} According to the record, on October 25, 2012, Klacik went to the Columbus City Prosecutor's Office to file a criminal complaint against appellant. The prosecutor's office could not file charges until it confirmed appellant's identity. Approximately two weeks later, on the morning of November 6, 2012, the prosecutor evaluated Macik"s complaint and found probable cause existed to file charges as soon as the prosecutor's office confirmed appellant's identity. Later that morning, appellant went to the prosecutor's office to file a criminal complaint against Klacik.l {l 6} On November 27, 2012, the prosecutor filed charges against appellant for one count of assault, in violation of R.C. 2903.13(A), and one count of disorderly conduct, in violation of Columbus City Code 2317.ii(A)(1). Appellant filed a motion to dismiss for selective prosecution and a motion to compel discovery prior to trial. At the hearing on the motions, appellant withdrew his motion to compel and the court denied his motion to dismiss. 1171 Appellant waived trial by jury and the trial court held a hearing on July 22, 2013. Appellant moved for judgment of acquittal under Crim.R. 29 at the close of the state's case. The trial court denied appellant's motion. The trial court found appellant guilty of both assault and disorderly conduct in a written decision dated July 29, 2013. Appellant moved for a new trial on August 8, 2013. The trial, court denied that motion in a written decision filed August 22, 2013.

1 Though not in the record, during oral argument, counsel for appellant said that someone called the bar on November 6 and asked about the incident. It was after that phone call that appellant went to the prosecutor's office to file a cross-complaint. No. i3AP-816 3 {y[ $} Appellant timely appealed his convictions for assault and disorderly conduct. Appellant also appeals from the trial court's denial of his motion to dismiss for selective prosecution, denial of his motion for a judgment of acquittal, and denial of his motion for a new trial. II. Assignments of Error

{j 9} On appeal, appellant assigns the following 11 errors for our reiiew; 1. The trial court and the prosecutor knew that the perception of racial discrimination in Ohio's criminal justice system has a basis in statistical fact, and committed structural error and fundamental error when they opposed and denied Moses' motion to dismiss due to selective prosecution.

2. It was structural error and fundamental error for the prosecutor, after deciding to prosecute Anthony Moses, to interrogate Moses without the presence or assistance of his attorney, thus denying him Fifth, Sixth, and Fourteentli Amendment rights.

3. It was structural error and fundamental error for the prosecutor, after deciding to prosecute Moses, and in violation of the prosecutor's own policy, to refuse to assign Moses' cross-filed coniplaint against the state's prosecuting witness to a special prosecutor for probable cause purposes concerning wliether the state's prosecuting witness engaged in unlawful conduct, including but not limited to, disorderly conduct in violation of Columbus City Code §2317.1.y(B).

4. It was sti-uctural error and fundamental error for the prosecutor, acting under color of law, and having no evidence to the contrary, to abuse his discretion by purposefully undermining, mischaracterizing, and misapplying statements set forth in the Colurnbus Division of Police's Preliminary Investigation which stated, categorically, that the State's witness, Nicholas Klacik, was intoxicated.

5. The trial court erred in denying Moses' motion for a judgment of acquittal.

6. The trial court erred in denying Moses' motion for a new trial.

7. The state's use of false testimony at trial that the prosecutor knew, or should have known, was false was plain error, No. 13AP-816 4 structural error, and fundamental error which was prejudicial to Moses and denied him a fair trial.

8. The trial court erred as a matter of law in failing to apply the law of defense of property to the facts of this case.

9. The trial court erred as a matter of law and failed to properly apply the law of self-defense to the facts of this case.

10. The trial court, as trier of fact, lost its way and made a finding of guilty that was against the manifest weight of the evidence and is not supported by sufficient, reliable, or credible evidence.

11. The trial court's finding that Moses did not act in self- defense was against the manifest weight of the evidence.

III. Discussion

{y[ 101 For ease of discussion, we will consider appellant's assignments of error out of order.

A. First and Fourth Assignments of Error: Selective Prosecution {1 11} In his first and fourth assignments of error, appellant claims the trial court erred when it failed to dismiss the charges against him due to selective prosecution based on appellant's race. Appellant argues the prosecutor discriminated against him based on his race because the prosecutor charged appellant but did not approve charges on his cross-complaint against the victim, a white male. 11121 "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." State v. Getsy, 84 Ohio St.3d i8o, 203 (1998), citing United States v. Armstrong, 5t7 U.S. 456, 463 (1996).

{][13} The Supreme Court of Ohio examined a selective prosecution claim in State v. Flynt, 63 Ohio St.2d 132, 134 (198o), and articulated a two-part test for establishing a prima facie claim of selective prosecution: To support a [claim] of selective or discriminatory prosectition, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others sifnilarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) No. 13AP-816 5 that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

Id., quoting tlnited States v. Berrios 5o1 F.2d 1207, 1211 (2d Cir.1974). {y[ 14} " 'A mere showing that another person similarly situated was not ^ prosecuted is not enough; a defendant must demonstrate actual discrimination due to co 0O invidious motives or bad faith.' " Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 532 a.0 (1999), quoting State v. Freeman, 20 Ohio St.3d 55, 58 (1985)• "Absent some demonstration of an invidious motive, [a] court will not presume intentional or a M purposeful discrimination from a mere showing of different treatment." ^1? State v. Lamar, N 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 46, citing Freertian at 58. ^v^ a {115} A trial court is required to grant an evidentiary hearing if the defendant demonstrates a "colorable entitlement" to a selective prosecution claim. State v. Wasmus, ® N ioth Dist. No. 94APAo7-1o13 (Apr. 27, i995). However, a°'defendant is not entitled to an C, ^ 0 evidentiary hearing on a selective prosecution defense unless he sets forth a prima facie L) 0 claim." State v. Powell, 4th Dist. No. o5CA3o24, 2oo6-Ohio-5037, ¶ 23. Both the Supreme Court of Ohio and the United States Supreme Court have noted that the burden U ^ in maintaining a selective prosecution claim is on the defendant as the prosecutor enjoys a e^ ^o. a presumption that his actions were non-discriminatory in iiature. State v. Keene, 81 Ohio a 0 St.3d 646 (1998); United States v. Armstrong, 517 U.S. 456, 464 (1996). "The decision whether to prosecute a criminal offense is generally left to the discretion of the 0 v ® prosecutor." Lamar at ¶ 43, citing Armstrong at 464. ^ 0 a {9[16} A complete review of the trial court record indicates appellant is unable to ^ provide clear evidence on either prong of the Flynt 0 test to establish a prima facie claim. of U selective prosecution. First, appellant has not provided any evidence that the prosecutor ^ failed to prosecute other similarly situated individuals for identical coiiduct. Second, Li appellant offers no evidence dernonstrating that the prosecution singled him out for criminal charges because of his race or in any other way acted in bad faith or pursuant to an "invidious motive." No. 13AP-816 6

{y[ 17} Accordingly, the trial court did not commit error in denying appellant's motion to dismiss due to selective prosecution. We overrule appellant's first and fourth assignments of error.

B. Second and Third Assignments of Error: Fifth and Sixth Amendment Violations

11181 Appellant's second and third assignments of error claim his Fifth and Sixth 0co Amendment rights were violated when he was interviewed at the prosecutor's office after 0 0 a the prosecutor had found probable cause to file criminal charges against him. {119} On the morning of November 6, 2012, Assistant Prosecutor Melissa Hicks a c^ found probable cause existed to file charges against appellant if his identity could be u^ N T verified. Later that day, appellant went to the Columbus City Prosecutor's Office to file a RT N criminal cross-complaint against Klacik. Hicks interviewed appellant, and, as a result, the a ^ prosecutor's office identified appellant as the assailant in Klacik's criminal complaint filed N® on October 25, 2012. ^ {y[ 20} Appellant argues that the prosecutor's office violated his Fifth and Sixth 0 U Amendment rights by "interrogating" him without the presence of an attorney, 0 interviewing him without first obtaining a waiver of legal representation, and by failing to ts assign appellant's complaint to a special prosecutor. N ^ {y[ 21} The Fifth Amendment to the United States Constitution, applied to the ^ states pursuant to the Fourteenth Amendment, provides that no person "shall be 0 compelled in any criminal case to be a witness against himself." In order to protect this 0 c) ® right, a criminal suspect in a custodial interrogation must be informed of his s 0 constitutional rights to remain silent and to have defense counsel. Miranda v. Arizona, a 384 U.S. 436, 471(i966). c v 11221 "A custodial interrogation is questioning initiated by law enforcement after ^ a suspect has been formally arrested or had his freedom restrained in such a way that it is ii the equivalent of a formal arrest." State v. Watkins, ioth Dist. No. 12AP-345, 2013-Ohio- 804, ¶ 27, citing California v. Beheler, 463 U.S. 1121, 1125 (1983). Further, a court must examine the totality of the circumstances when determining how a reasonable person

would have understood the interrogation. StansburF v. California, 511 U.S. 318, 323 (1994). The relevant inquiry is whether "a reasonable person in the individual's position No. 13AP-816 7

would have believed that he or she was not free to leave given the totality of the circumstances." State v. Simpson, loth Dist. No. o1AP-757, 2002-Ohio-3717, ¶ 33, citing

Berkenier v.1tlcC'arty, 468 U.S. 420,442 (1984). {y[ 23} The Sixth Amendment to the United States Constitution, applied to the states pursuant to the Fourteenth Amendment, guarantees that in all criminal prosecutions, the accused shall have the right to assistance of counsel for his defense.

P co State v. Wyche, ioth Dist. No. o1AP-361 (Jan. 22, 2002) , citing ®0 McNeil v. Wisconsin, 501 0 a U.S. 171 (1991) . However, the riRht to counsel dne'`i not qttAt}t iintil nr1-,rnrcnrin1 M proceedings commence by formal criminal charges, a preliminary hearing, an indictment, a M information, or an arraignment. Wyche, citingKirby v. Illinois, 4o6 U.S. 682, 689 (1972). `°'^q T {y[ 24} Here, appellant was not subjected to custodial interrogation. Rather, C14 appellant voluntarily went to the prosecutor's office to file a complaint against Kiacik. a Nothing prevented appellant from leaving the interview at any time, nor did appellant 0 N produce any evidence demonstrating he believed he was not free to leave. Furthermore, cn ^ the state had not filed formal charges against appellant when he went to the prosecutor's 0 ^ office; charges were filed on November 27, 2012. Because appellant was not subject to 0 custodial interrogation nor had formal charges been filed against him, his Fifth and Sixth a^ ^ Amendment rights were not implicated. ^ ^ 11251 Based on the foregoing, we overrule appellant's second and third a assignments of error. ® ^ C. Fifth, Seventh, and Tenth Assignments of Error: Insufficient 0 0 Evidence and Manifest Weight of the Evidence. 0 s 0 {9[ 26} In his fifth assignment of error, appellant claims insufficient evidence c supported his convictions. Similarly, appellant's tenth assignment of error argues the trial 0 U court's convictions were against the manifest weight of the evidence. Appellant's seventh c assignment of error argues that false testimony at trial was prejudicial and denied him a Li fair trial. We find appellant's arguments unpersuasive. {127} When reviewing the lower court's record for sufficiency of the evidence, the appellate court's relevant inquiry is whether the evidence presented, viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt. State v.1Vlahone, loth Dist. No. 13AP-816 8

No. 12AP-545, 2o14-Oh1o-1251, ¶ 38, citing State v. Tenace, 1og Ohio St.3d 255, 2oo6- Ohio-2417, ¶ 37.

{128} A manifest weight challenge requires this court to weigh the evidence to determine whether 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 u. Cruz 14ltunar, loth Dist. No. r1AP-1114, 2012-Ohio-4833, ¶ 13, citing State v. Lang, 129 co Ohio St.3d 512, 2oil-Ohio-4215, ¶ 22o. A court of appeals should only reverse a trial ® ® a. court's conviction on manifest weight grounds in exceptional circumstances. State v. ci Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.lVlartin, 20 Ohio App.3d 172, a 175 (1st Dist.1983). ^r^ r {q[ 29} Similar to an insufficient evidence challenge, when addressing a manifest N weight challenge the trier of fact is given great deference in our review. State v. Wilson, 113 Ohio 5t.3d 382, 2007-Ohio-22o2, ¶ 26. An appellate court may consider the ®r N credibility of witnesses when conducting a manifest weight review. State v. Cattledge, ioth Dist. No. loAP-1o5, 2o1o-Ohio-4953, ¶ 6. However, "we are guided by the 0 U presumption that the jury, or the trial court in a bench trial, 'is best able to view the 0 ^ witnesses and observe their demeanor, gestures and voice inflections, and use these ^ ^ observations in -vnTeighing the credibility of the proffered testimony.' '° Id., quoting Seasons Coal Co., Inc. v. Cleueland, a lo Ohio St.3d 77, 80 (1984). a {9[30} R.C. 2903.13(A) states, in part, "[n]o person shall knowingly cause or ® attempt to cause physical harm to another." "A person acts knowingly, regardless of his v0 0 purpose, when he is aware that his conduct will probably cause a certain result or will ^ 0 probably be of a certain nature. A person has knowledge of circumstances when he is a c aware that sucla circumstances probably exist." R.C. 2901.22(B). 0 c) {l 31} Further, Columbus City Code 2317.11(A)(1) states, in part, "No person shall c ^ c recklessly cause inconvenience, annoyance, or alarm to another, by * * * engaging in ^ LL fighting, in threatening harm to persons or property, or in violent or turbulent behavior." 11321 At trial, appellant admitted he knowingly punched Klacik in the mouth with his fist. Klacik testified appellant struck him in the face, causing damage to his tooth and lip which required medical treatment. The state presented photographic e`idence of the No. 13AP-8t6 9

injuries. Furthermore, both of Klacik's roommates testified at trial and corroborated Klacik's account of the incident. {9[ 33} In support of his manifest weight argument, appellant claims Klacik testified untruthfully during the trial and that -the other witnesses lied and "infringed upon the integrity of the court." (Appellant's brief, at 45.) Specifically, appellant claims

^ that because Klacik could not recall the number of steps onto the DJ's stage, no part of his co testimony is credible. Appellant further argues that because Klacik was untruthful n. regarding whether he consumed any drinks prior to going to the bar, the court may not Cl) consider any of his testimony. u. Cl) {y[ 34} This court has stated that where the basis for a manifest weight argument T N lies in witnesses' conflicting testimony or the credibility of the witnesses, the court will 04 decline to substitute its own judgment for that of the trier of fact. CL INhitehall v. Ruckman, a ioth Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 16. "While appellant asserts the 0 N prosecution's witnesses were either lying or mistaken in their testimony, the * * * trier of 60l ^ fact was in the best position to determine the credibility of the testimony presented." 0 Id. U A trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson, 0 le ioth Dist. No. oiAP-973 (Mar. 19, 2002). See also State v. Raver, aoth Dist. No. 02AP- U ^ 604, 2003-Ohio-958, ¶ 21 (stating an appellant presenting a manifest-weight argument is ^ not entitled to a reversal merely because inconsistent evidence was presented at trial). a 11351 The trial court's written decisions specifically addressed the credibility of 0 i the testifying witnesses. In its Entry and Order following appellant's trial, the court 0 U stated: _o t 0 As the trier of fact and the sole judge of the credibility of the ^ witnesses the Court applied an analysis of not only the ^ truthfulness of the witnesses but also the impact of the U instances when the witnesses were found to not be truthful. c There were issues on both sides of this case where a witness c was found not to be ti-uthful. In this instance the lack of w truthfulness was found to be more substantive on the part of the Defendant.

(R. 46, at 2.)

11361 The trial court addressed the same concern in its denial of appellant's motion for a new trial. The court's Entry and Order stated that in response to issues No. 13Al'-816 10

raised by appellant with respect to witness credibility and appellant's claim for defense of property:

[T]o ease [defense] counsel's misgivings the court will briefly give further explanation as to why the testimny of the defendant and witnesses support the finding of guilt.

[D]efendant was not convincing in any testimony that he provided to attempt to convince the court that even he believed he or his equipment were in danger.

As the trier-of-fact the court is not required to believe any one account. Rather the court can determine if all or parts of the testimony presented are worthy of reliability. The court acknowledged that the prosecuting witness was not truthful about his alcohol consumption however, that was ultimately a trivial issue in the consideration of the court particularly in light of the testimony of the other witnesses and the defendant.

(R. 56, at 1-2.)

{137} This court, deferring to the trial court's evaluation of witness credibility, finds the evidence presented at appellant's trial was sufficient to support the convictions, the convictions were not against the manifest weight of the evidence, and the minor inconsistencies did not prejudice appellant. Accordingly, we overrule appellant's fifth, seventh, and tenth assignments of error.

D. Assignments of Error Six, Eight, Nine, and Eleven: Self-Defense and Defense of Property

{138} In assignments of error eight and nine, appellant argues the trial court erred when it failed to apply the law of either self-defense or defense of property to the facts presented at trial. Appellant also claims in his eleventh assignment of error, the trial court's finding he did not act in self-defense was against the manifest weight of the evidence. Finally, appellant argues in his sixth assignment of error that because the trial court did not apply either self-defense or defense of property, he is entitled to a new trial. This court disagrees with each argument. No. 13AP-816 11

{9t 39} As we discussed in our resolution of appellant's tenth assignment of error, a manifest weight challenge requires this court to weigh the evidence to deteranine whether the trier of fact below clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered. Cruz Altzenar at ¶ 13, citing Lang at T 220. Further, a court of appeals should only reverse a trial court's

u^ conviction on manifest-weight grounds in exceptional circumstances. Thompkins at 387, P co quoting Martin at 175. ® 0 a i. Self-Defense and Defense of Property ^a 11401 The Supreme Court of Ohio has established that self-defense is an ^ a M affirmative defense and the burden of establishing the defense is on the defendant. State q? N v. Palmer, 8o Ohio St.3d 543, 563 (1997). To establish self-defense, appellant must N^ demonstrate that "(1) the accused was not at fault in creating the situation giving rise to a a the affray; (2) the accused has a bona fide belief that he was in imminent danger of death P N 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 0 ca danger." State v. Gripper, ioth Dist. No. 12AP-396, 2013-Ohio-2740, ¶ 18, citing ® State v. Melchior, 56 Ohio St.2d 15, 20-21 (1978). If appellant "fails to prove any one of these v y elements by a preponderance of the evidence he has failed to demonstrate that he acted. in aa^ self-defense." (Emphasis sic.) State v. Jackson, 22 Ohio St.3d 281, 284 (1986). ^. 11411 Similarly, defense of property is also an affirmative defense that the 0 i defendant must establish. State v. Perez, 7th Dist. No. 09 MA 30, 2o1o-Ohio-3168, ¶ 11. ® v One may act in self-defense, or in defense of property, at either the same time or in ^0 0 succession. Columbus v. Eley, loth Dist. No. 91AP-8o3 (Jan. 28, 1992). Under a defense a ^ of property claim, a defendant must "present evidence that he reasonably believed that his 0 U conduct was necessary to defend his property against the imminent use of unlawful force,

.k c and the force used was not likely to cause death or great bodily harm." State v. Bruckner, U_ 8th Dist. No. 63296 (Sept. 30, 1993), citing Columbus v. Dawson, 33 Ohio App.3d 141 (ioth Dist.1986).

11421 Appellant argues he punched Klacik because appellant believed Klacik was about to strike him, thereby creating an imminent fear of great bodily harm. Furthermore, appellant argues he was concerned that Klacik would harm his expensive No. 13AP-s16 12

DJ equipment. The trial court considered each of these arguments, as discussed below, and determiried appellant's testimony did not establish the requisite belief to support either claim.

{q[ 431 Appellant's argument that the trial court's guilty verdict was against the manifest weight of the eviderice is unavailing. The state provided three witnesses who

^ each stated that prior to appellant striking Klacik, appellant turned the music down or off, cor 0 informed the crowd that Klacik had to the count of three leave the DJ's stage, and then ® ® a proceeded to punch Klacik in the face after appellant performed the countdown. r^ {9[ 441 Additionally, security personnel were present at the bar but appellant did ^ CI) not call security to the stage during the incident with Klacik, a fact that would refute any In CM argument that appellant believed he was in imminent danger of death or great bodily ^ N harm. To the contrarv, appellant took the time to turn down the rnusic, get on the a microphone, and address the crowd. Appellant clearly demonstrated he did not consider ® 04 himself to be in imminent danger. {4[ 451 Based on this testimony, the trial court, as the trier of fact, did not find 0 v appellant demonstrated, by a preponderance of the evidence, that he actually believed he ® ^ was in imminent danger of bodily harm. v U) {146} Additionally, in its written decision, the trial court determined that "[e]ven ^ if the Court were to solely take the [appellant's] testimony into account, the Court does a not find that the [appellant] has proven that he was not at fault in creating the situation 0 ^ giving rise to the assault." (R. 46, at 2.) Relying on the testimony presented, the trial ® a court found appellant joked with Klacik in an "insulting manner," "publically 0 humiliate[d]" Klacik instead of alerting security, and made "derogatory statements" at ^ c Klacik's expense. (R. 56, at 1.) By his own admission, appellant got on the microphone 0 v and addressed the audience in an attempt to make a joke at Klacik's expense. c {9[47} Further, the trial court found appellant's testimony regarding his defense of LL property claim and his alleged concern for his equipment "failed to conclusively prove that there was anything reasoariable about a belief of that nature." (R. 56, at 1.) After a review of the entire record, we do not find the trial court, as the trier of fact, clearly lost its way, creating a manifest miscarriage of justice. No. 13AP-816 13

2. Motion for New Trial {148} The appellant further argues that as a result of the trial court failing to recognize his affirmative defenses, the trial court erred when it denied his motion for a new trial. Specifically, appellant argues minor inconsistencies in the trial testimony dictate the court should not accord any probative weight to the testimony of the state's witnesses. We do not agree with appellant's argument.

T ® 0 {149} The decision to grant or deny a motion for a new trial rests in the sound 0 a discretion of a trial court. State v. Lei, loth Dist. No. 05AP-288, 2oo6-Ohio-26o8, ¶ 19, C13 7 citing State v. Schiebel, 55 Ohio St.3d 71 (19go), paragraph one of the syllabus. The trial 2 a M court has the discretion to judge witness credibility when it considers testimony in a n c14 motion for a new trial. Lei at ¶ x9, citing State v. Kirkland, Zoth Dist. No. 97AP-873 (Apr. a C14 9, 1998). Accordingly, an appellate court will not "disturb the decision of a trial court on a a motion for a new trial absent an abuse of discretion." Id. v-TT Abuse of discretion is more ® C^ than an error of either law or judgment, and, instead, "implies that the court's attitude is U) unreasonable, arbitrary or unconscionable." ^ Blakemore U. Blakeinore, 5 Ohio St.3d 217, ® L) 219 (1983). This court has described the decision to grant a motion for a new trial as an 0 "extraordinary measure" that is appropriate only when "the evidence presented weighs v v heavily against conviction." ^ State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ^ aa TI 35 (loth Dist.), citing CL State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.i986). CL f4[ 50} As discussed thoroughly above, the trial court's verdict was supported by 0 i sufficient evidence and is not contrary to law. The court, as the trier of fact, expressly ® u 0 found the state's witnesses' testimony credible. Specifically, each of the state's witnesses r 0 testified appellant counted down over the microphone prior to striking Klacik. Based on >1 cm the testimony, the court concluded appellant was not in fear of imminent danger to 0 U himself or his equipment, and, therefore, neither self-defense nor defense of property applied. c ^ LL {l 51} The trial court's conviction was not against the manifest weight of the evidence, the trial court correctly found that neither self-defense nor defense of property applied, and the trial court did not abuse its discretion in denying appellant's motion for a new trial. Accordingly, appellant's assignments of error six, eight, nine, and eleven are overruled. No. 13AP-816 14 IV. Conclusion

{152} We overrule appellant's eleven assignments of error and affirm the judgment of the Franklin County Municipal Court.

Judgment affi"rmed.

SADLER, P.J.; and CONNOR, J., concur.