The Akron Legal News

Man who assaulted victims in store parking lot loses appeal

ANNIE YAMSON
Special to the Legal News
Published: February 11, 2016

The appeal of a man who instigated a confrontation in the parking lot of an Akron Family Dollar Store was recently overruled by a panel of three judges in the 9th District Court of Appeals.

The defendant, Edward Osborne, appealed from the judgment of the Summit County Court of Common Pleas with a single assignment of error that challenged the manifest weight of the evidence supporting his conviction.

The violent altercation at the discount retailer took place on April 17, 2013 and led the Summit County Grand Jury to indict Osborne on two counts of felonious assault.

The state later supplemented the indictment with a repeat violent offender specification for each count.

Osborne asserted self defense, arguing that the two victims in the case, Michael Jones and Gary Hite, were actually the aggressors.

The jury, though it was instructed on the affirmative defense, did not buy it.

It returned guilty verdicts on both counts and the attendant specifications, leading the trial court to sentence Osborne to 18 years in prison.

In his appellate brief, Osborne again asserted self defense with a contention that his felonious assault convictions were against the manifest weight of the evidence because the greater weight of the evidence presented at trial demonstrated that he was the victim trying to defend himself.

“This court disagrees,” Presiding Judge Donna Carr wrote for the court of appeals. “A thorough review of the record reveals that Osborne was not acting in self defense when he assaulted Michael Jones and Gary Hite on the evening of April 17, 2013.”

According to the reviewing court’s summary of the case, Jones, Hite and Osborne’s exgirlfriend, referred to as T.T. in court documents, were socializing in T.T.’s home on the night of the incident.

Records state that T.T. and Osborne formerly shared the residence, but he moved out after a domestic violence incident.

On the night in question, T.T. received a phone call and then indicated to the others that she needed to walk to the nearby Family Dollar store.

Jones later testified that he found this puzzling and that he was worried for T.T.’s safety.

Out of concern for his friend, Hite escorted T.T. to the store while Jones stayed behind. However, when Jones observed Osborne drive by the house slowly with his car’s headlights turned off, he left the house too and walked to the Family Dollar in the hopes of preventing a confrontation.

According to the state’s evidence, Osborne met T.T. and Hite at the store and immediately tried to force T.T. into his car.

A struggle ensued, during which Osborne’s unknown passenger struck Hite in the head with a weapon and instigated a tussle.

Surveillance video from the store’s cameras showed Osborne strike Hite with his vehicle as Hite stumbled through the parking lot.

Jones testified that he arrived to a chaotic scene: Hite was fighting with an unidentified man and Osborne was attempting to get T.T. into his car.

When Jones stepped in to help T.T., Osborne pulled out a knife and stabbed Jones in the side.

Eventually, T.T. was able to get away from the car and run into the store.

In his defense, Osborne testified that Hite attacked him with a knife and that Jones showed up with a revolver. But video evidence proved that Jones, at least, was unarmed.

“After a thorough review of the record, we cannot say that this is the exceptional case where the evidence weighs heavily against conviction,” Carr wrote. “The greater weight of the evidence presented at trial showed that Osborne instigated the violent sequence of events in this case by accosting T.T. and attempting to force her into his vehicle.”

The appellate panel made note of the fact that Jones was unarmed and that Osborne further escalated the situation by stabbing him. And Osborne’s passenger attacked Hite with a weapon before Osborne struck Hite with his vehicle.

“As there was ample evidence indicating that Osborne was responsible for creating a volatile situation and then accelerating the level of violence, he cannot prevail on his manifest weight challenge,” Carr wrote. “Moreover, though Osborne offered testimony in support of his self defense theory, it is well settled that this court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the trier of fact chose to believe certain witnesses’ testimony over the testimony of others.”

The court of appeals concluded that it could not reverse the guilty verdicts and it affirmed the judgment of the Summit County court.

Judges Beth Whitmore and Carla Moore joined Carr to form the majority.

The case is cited State v. Osborne, 2016-Ohio-282.

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