In re B.M.
{¶1} Following a bench trial before a magistrate, 14-year-old B.M. was adjudicated delinquent for committing an act that had she been an adult would have constituted felonious assault. B.M. now claims that the juvenile court‘s delinquency finding was against the manifest weight of the evidence. For the following reasons, we reverse B.M.‘s adjudication.
Facts
{¶2} B.M. lived with her mother, S.W., stepfather, L.W., and her sister. One day, B.M. and her sister neglected to lock the front door when they went to the library. L.W. returned home from work аnd found the house unlocked. When B.M. returned home, L.W. confronted her about the door and attempted to poke her. B.M. swung at L.W. L.W. was not permitted by S.W. to physically disсipline B.M. L.W. told B.M. to go upstairs to her room to wait until her mother was home. B.M. complied.
{¶3} When S.W. returned home, B.M. was called downstairs to discuss the matter. L.W. becamе angry and started yelling in B.M.‘s face. B.M.‘s hands were at her sides. She stepped back, her hands still down. L.W. grabbed B.M. and wrapped his arms around her body, with one arm around her nеck. B.M. had trouble talking and breathing. B.M. said L.W. was attempting to pull her down. B.M. then stabbed L.W. twice with a steak knife that she had in her pocket. She wounded L.W. near his elbow and in the upper thigh.
{¶4} B.M. claimed that she acted in self-defense, only stabbing L.W. to free herself from his chokehold. The magistrate disagreed, finding that B.M. failed to establish eaсh element of the affirmative defense of self-defense with nondeadly
Analysis
{¶5} In her first assignment of error, B.M. claims that the juvenile court erred as a matter of law in adjudicating her delinquent of felonious assault because the evidence demonstrated that she acted in self-defense.
{¶6} As an initial matter, there are two affirmative defenses for self-defense. The juvenile сourt incorrectly applied the standard for self-defense using nondeadly force. Both B.M. and the state argue this is error, and agree that the correct аffirmative defense under these facts is self-defense using deadly force.
{¶7} Under
{¶8} In order to establish the affirmative defense of self-defense using deadly force, B.M. had to prove by a preponderance of the evidence that (1) she was
{¶9} To determine whether B.M. established the elements of self-defense using deadly force we consider the manifest weight of the evidence. See, e.g., In re J.P., 8th Dist. Cuyahoga No. 81486, 2003-Ohio-3522. “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed * * *.” State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).
{¶10} We first inquire whether B.M. was at fault for creating the situation. B.M. was called downstairs by both her mother and L.W. to discuss the incident that had happened earlier that day betwеen B.M. and L.W. B.M. did not initiate a confrontation. L.W. became irate as he spoke. S.W. testified that immediately prior to the stabbing, B.M. stepped back, with her hands at hеr sides. L.W. preemptively restrained B.M. because he believed she intended to swing at him. B.M.‘s moving away from L.W. is what caused him to grab B.M. There is no evidence of any additiоnal provocative action by B.M. Thus, there is no indication that B.M. actually instigated any physical contact; by all accounts, L.W. made the first move. L.W.‘s subjective belief that B.M. would swing at him is not supported by the record, and his misperception is not attributable to B.M. L.W.‘s belief that B.M. might hit him cannot be used to ascribe fault to B.M.
{¶11} The cоurt took issue with B.M. putting the knife in her pocket before going downstairs for the discussion. But B.M.‘s possession of the concealed weapon did not create thе situation. Prior to grabbing her, L.W. did not know B.M. had the knife. He only realized that she possessed a weapon when he “felt something happen to his arm and leg” after hе grabbed her. The presence of the knife had no influence on L.W.‘s decision to place his arms around B.M. and did not create the situation that gave rise tо the assault. Accordingly, the first element of self-defense was met.
{¶12} Second, B.M. had to prove that she had a bona fide belief that she was in imminent danger of greаt bodily harm or death and her only means of escape from such danger was stabbing L.W. The trier of fact “must consider the entire situation and determine whether the person‘s actions were reasonable under the circumstances.” In re Bumpus, 1st Dist. Hamilton No. C-020776, 2003-Ohio-4307, at ¶ 11, quoting State v. Napier, 105 Ohio App.3d 713, 664 N.E.2d 1330 (1st Dist.1995); see State v. Oates, 2013-Ohio-2609, 993 N.E.2d 846, ¶ 11 (3d Dist.) (defendant‘s bona fide belief means a belief that was both objectively reasonable and subjectively honest). Here, L.W., an adult male who was already angry with B.M. because of the earlier incident, confronted B.M. and physically restrained her by wrapping his arms around her body. B.M. had trouble talking and breathing because L.W.‘s arm was around her neck. B.M. described L.W.‘s movement as attempting to pull her down to the ground, at which point she would have been in an even more vulnerable position. S.W. was concerned for B.M.‘s safety. The magistrate found that B.M. was reasonable to rеspond with some force. Further, there was no evidence of serious injury from the two stab wounds to L.W.‘s arm and upper thigh, and B.M. immediately dropped the knife oncе L.W. let her go. It is unclear what less force 14-year-old B.M. could have successfully applied against a grown man in this
{¶13} Finally, B.M. did not have a legal duty to retreat. Under
In her second assignment of error, B.M. argues that the juvenile court erred in not considering aggravated assault when there was evidence of provocation. This assignment of error is made moot by our disposition of the first assignment of error and we do not address it.
Conclusion
{¶14} In conclusion, because B.M. proved that she acted in self-defense and self-defense is a complete defense to felonious assault, we reverse the judgment of the juvenile court and discharge B.M.
Judgment reversed and appellant discharged.
MYERS, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.