Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
MUSTO, Attorney for Plaintiff-Appellee.
MICHAEL H. HOLZ, Attorney for Defendant-Appellant.
1} Dwayne D. Coleman appeals from a judgment of the
Dayton Municipal Court, which found him guilty of assault, a
misdemeanor. The trial court sentenced him to 180 days in
jail; he received jail time credit of 12 days, and the
balance of the sentence was suspended. The court placed him
on non-reporting community control and ordered him not to
return to the store where the incident occurred.
2} Coleman appeals, raising one assignment of error,
arguing that his conviction was against the manifest weight
of the evidence.
3} The incident in question occurred on June 8,
2017; Coleman was charged with assault by complaint on June
9, 2017. The matter was tried to the court on June 20, 2017.
The evidence at trial was as follows.
4} Darnell Pate testified that he worked as an armed
security officer at an Aldi store on June 8, 2017. He
encountered Coleman just as the store was closing for the
night. Coleman placed several items on the conveyor belt at a
checkout lane, reached into his pockets, and then left the
store without taking the items on the belt with him. Pate
thought this behavior was suspicious and was concerned about
5} Pate followed Coleman outside the store and asked
Coleman to step back inside the store to talk. When Pate
"gesture[d] [Coleman] back in the store" and
touched "his shoulder area" with an open hand,
Coleman "seemed to get agitated" and hit Pate in
the right arm with a closed fist. Pate "grabbed"
Coleman and walked him into the store. Pate informed Coleman
that he (Pate) was going to put Coleman in handcuffs,
"just so it [sic] wouldn't be anymore physical
altercation, " but when Pate attempted to put Coleman in
handcuffs, Coleman hit Pate in the side of the head with a
closed fist. Pate testified that he believed he was hit in
the head "just twice, " but that he was not sure
because the event unfolded very quickly. Pate then succeeded
in getting Coleman in handcuffs, and the Dayton Police were
called. Coleman was not found to be in possession of any
6} A cashier who was working at Aldi on the night of
June 8, 2017, testified that, at closing time, she observed
the "scuffle" or "power struggle"
involving the security guard (who was known to her only as
"Darnell") and Coleman through the glass doors at
the front of the store. She testified that she saw Coleman
hit Pate, but she could not tell where Pate was hit. The
cashier believed both men had been "struck" during
the altercation, because she "saw lots of hands."
7} Dayton Police Officer Paul Rice responded to the
Aldi on the night in question concerning a report that a
"shoplifter was in custody." He later learned that
nothing was actually taken from the store, but that Coleman
had allegedly assaulted a security guard.
8} At the close of the State's case, Coleman
moved for a Crim.R. 29 judgment of acquittal, which the court
denied. The defense did not present any witnesses.
9} Defense counsel argued in closing argument that
Coleman had acted in self-defense, because in the absence of
any theft, Pate had no right to touch Coleman, to ask him to
return to the store, or to engage in "false
imprisonment"; Coleman argued that, like any other
private citizen, Pate should have "call[ed] the police
and give[n] a report." The State argued that
Coleman's response to Pate's initial contact with him
was "completely unreasonable" and constituted
assault, and that Coleman did not act in self-defense because
his use of force was unreasonable.
10} The trial court found that Pate had acted as a
private citizen, not as a law enforcement officer, during his
interaction with Coleman; therefore, questions of
"reasonable suspicion" and "probable
cause" did not apply, as there was "no government
action." The court further concluded that, although Pate
was well-intentioned, he "was wrong to follow [Coleman].
He was wrong to touch him." Nonetheless, the court found
that Pate did not do anything to cause Coleman harm and that