STATE OF OHIO v. ERIC LAPAUL BUNDY
Case No. 11CA818
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
8-20-12
2012-Ohio-3934
ABELE, P.J.
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Sarah G. LoPresti, Ohio Assistant Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Robert Junk, Pike County Prosecuting Attorney, 100 East 2nd Street, Waverly, Ohio 45690
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 8-20-12
ABELE, P.J.
{¶ 1} This is an appeal from a Pike County Common Pleas Court judgment of conviction and sentence. The jury found Eric L. Bundy, defendant below and appellee herein, guilty of (1) reckless homicide, in violation of
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED MR. BUNDY‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ENTERING JUDGMENT OF CONVICTION FOR RECKLESS HOMICIDE, WHEN THE JURY‘S DETERMINATION THAT MR. BUNDY HAD NOT ACTED IN SELF-DEFENSE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED ERIC BUNDY OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION WHEN IT INSTRUCTED THE JURY THAT THE STATE MAY REBUT THE PRESUMPTION OF SELF-DEFENSE BY DEMONSTRATING THAT THE DEFENDANT DID NOT MEET THE THREE ELEMENTS OF THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE.”
{¶ 3} Appellant‘s conviction stems from an unfortunate sequence of events that culminated in the fatal shooting of Richard “Pig” Harris. In April 2010, appellant had been living with Pig‘s {¶ 4} brother, Brandon Harris, a reputed drug dealer. Appellant claimed to be Brandon‘s “bodyguard.” On April 19, 2010, appellant became angry with Brandon for leaving him home without money. Appellant then decided to steal Brandon‘s gun, along with some cocaine and
{¶ 5} When Brandon returned home, he and Pig discovered the missing gun and drugs. They suspected appellant had stolen them and decided to find appellant to retrieve the items.
{¶ 6} In the meantime, appellant contacted Shawn Fyffe, another reputed drug dealer, to ask for assistance to sell the items. The Harris brothers also had contacted Fyffe to ask about appellant‘s whereabouts. After Fyffe advised the Harris brothers that he had just spoken with appellant, the Harris brothers requested Fyffe to arrange a meeting with appellant without letting appellant know about the Harris brothers involvement. Fyffe agreed. Fyffe and appellant decided to rendevous at an abandoned parking lot.
{¶ 7} Appellant and his brother, Charles “Chucky” Bundy, arrived at the designated location and remained in their vehicle. When Fyffe and the Harris brothers (along with Brandon‘s girlfriend, Lauren Smith) arrived, the Harris brothers immediately exited the vehicle and ran to the Bundy vehicle. At that point, the sequence of the events is disputed. It is undisputed, however, that appellant shot a gun that resulted in Pig‘s death.
{¶ 8} Each of the five witnesses to the shooting had a different account. Appellant claimed that Brandon punched out the passenger side window with the butt of a gun and that Brandon and Pig were dragging him out of the vehicle. He stated that he told Chucky to “go go go,” as he fired the gun in the air. He claimed that the shooting was an accident.
{¶ 9} Chucky stated that two or three guys jumped out of the Harris vehicle. He claimed that one of them jumped on the top of the car, pointed a gun at appellant, and stated, “your [sic] fucken [sic] dead.” Chucky stated that “they” busted the window and then starting hitting appellant and trying to pull him out of the vehicle. Chucky claimed that he put the car in reverse
{¶ 10} Brandon admitted that he punched out the window, but disputed appellant‘s claim that he did so with a gun. Brandon stated that he used his hand to punch through the window. Brandon claimed that appellant fired the gun and shot Pig at the same time that he started to punch out the window. Brandon further disputed appellant‘s claim that he and Pig were trying to pull him out of the vehicle. Brandon stated that he and Pig were standing next to each other on the passenger side, where appellant was seated.
{¶ 11} Lauren Smith, Brandon‘s girlfriend, stated that Brandon and Pig exited the car and went to the passenger side of the Bundy vehicle. She explained that “as Brandon hit the window, I seen [sic] a gunshot go off in the passenger side.”
{¶ 12} Shawn Fyffe stated that Pig and Brandon jumped out of the vehicle. He saw Brandon proceed to the driver‘s side and Pig to passenger side. He stated that both Brandon and Pig were punching the window. He saw a window shatter and then heard the gunshot.
{¶ 13} A Pike County Grand Jury returned an indictment that charged appellant with: (1) murder, in violation of
{¶ 15} The state, however, disputed appellant‘s argument that he was entitled to the
{¶ 16} On cross-examination, appellant‘s counsel asked Dr. Stephens whether the bullet trajectory was “consistent with [the victim] leaning towards the muzzle of the gun at the time that it fired.” Dr. Stephens stated that it was consistent with that scenario. Counsel additionally questioned whether she found any glass fragments on the bullet. She stated that she did not. Appellant suggested that this testimony indicated that Pig was leaning toward the vehicle at the
{¶ 17} The state further relied upon the eyewitness accounts that appellant discharged the gun at approximately the same time that Brandon was striking the window. The state argued that this evidence showed that appellant fired the weapon before anyone attempted to enter the vehicle that he occupied, and thus, this evidence defeated his claim of presumptive self-defense under
{¶ 18} At the close of all the evidence, appellant moved for a judgment of acquittal regarding the murder count. He argued that the evidence demonstrated that he presumptively acted in self-defense under
{¶ 19} During closing argument, the state did not dispute that Brandon punched the window. The state did, however, observe that the evidence conflicted as to whether appellant discharged the gun before, during, or after the time that Brandon punched out the window. Moreover, the state asserted that appellant was not entitled to the self-defense presumption because the evidence failed to show that the victim, Pig, was in the process of unlawfully entering the vehicle when appellant shot him. The state observed that Brandon punched the window, “[b]ut
{¶ 20} Appellant‘s counsel asserted that the evidence demonstrated that Brandon and Pig jointly attacked the vehicle in which appellant was a lawful passenger, broke the window and then tried to drag appellant out of the vehicle.4 He contended that these facts show that appellant presumptively acted in self-defense under
{¶ 21} Before the trial court instructed the jury, appellant requested the following jury instruction:
“The defendant is presumed to have acted in self defense when using
defensive force that was intended or likely to cause death or great bodily harm to another if the person against whom the defensive force was used was in the process of entering or had entered unlawfully and without privilege to do so, the vehicle occupied by the defendant.
The state claims the presumption that the defendant acted in self defense when using defensive force that was intended or likely to cause death or great bodily harm to another does not apply. This presumption does not apply if the state proves by the greater weight of the evidence that: A) either the person against whom the defensive force was used had a right to be in the vehicle; or, B) the defendant used the defensive force while in a vehicle and he was unlawfully, and without privilege to be in that vehicle.”
The trial court did not use appellant‘s requested instruction, but instead instructed the jury:
“The Defendant is presumed to have acted in self-defense when using defensive force that was intended or likely to cause death or great bodily harm to another if the person against whom the defensive force was used was in the process of entering or had entered unlawfully and without privilege to do so, the vehicle occupied by the Defendant. * * * * The State claims the presumption that the Defendant acted in self-defense when using defensive force that was intended or likely to cause death or great bodily harm to another does not apply. * * * * The presumption does not apply if the State proves by the greater weight of the evidence that either the person against whom the defensive force was used had a right to be in the vehicle or the Defendant used the defensive force while in a vehicle and he was unlawfully and without privilege to be in that vehicle. This presumption is a rebuttable presumption. * * * * If the rebuttable presumption applies, then the State bears the burden of proof by a preponderance of the evidence to prove the Defendant did not act in self-defense by proving by the greater weight of the evidence that the Defendant was at fault in creating the situation giving rise to the death of [the victim]. * * * * Only a Defendant who was not at fault in creating the situation giving rise to the affray may resort to the use of force. The not-at-fault requirement means that the Defendant must not have been the first aggressor in the incident. The not-at-fault requirement does not require a showing that the Defendant played no part in criminal activity. Involvement in criminal activity does not preclude raising self-defense. The not-at-fault requirement requires the Defendant to show that he was not at fault in creating the situation that gave rise to the death, that is that the Defendant had not engaged in such wrongful conduct toward the assailant that the assailant was provoked to attack the Defendant. If the rebuttable presumption does not apply, then in order to establish the defense of self-defense, the Defendant bears the burden of proof by a preponderance of the evidence to establish that the Defendant was not at fault in creating the situation giving rise to the death of [the victim] * * *; and if the rebuttable presumption does not apply, then in order to establish the defense of self-defense, the Defendant bears
the burden of proof by a preponderance of the evidence to establish that the Defendant had reasonable grounds to believe, and an honest belief, even if mistaken, that he was in immediate danger of death or great bodily harm, and that his only reasonable means of escape from such danger was by the use of deadly force; and if the rebuttable presumption does not apply, then in order to establish the defense of self-defense, the Defendant bears the burden by a preponderance of the evidence to establish that the Defendant had not violated any duty to retreat to avoid the danger. If the rebuttable presumption does not apply, the Defendant had a duty to retreat if he was at fault in creating the situation giving rise to the death of [the victim], or did not have reasonable grounds to believe, and an honest belief, that he was in immediate or imminent danger of death or great bodily harm or that he had a reasonable means of escape from that danger other than by the use of deadly force. The Defendant no longer had a duty to retreat if he retreated, escaped, or withdrew from the situation, or reasonably indicated his intention to retreat, escape or withdraw from the situation and no longer participate in it; and he then had reasonable grounds to believe, and an honest belief, that he was in immediate or imminent danger of death or great bodily harm; and the only reasonable means of escape from that danger was by the use of deadly force, even though he was mistaken as to the existence of that danger. A person who lawfully * * * is an occupant in his vehicle or who lawfully is an occupant in a vehicle owned by his immediate family member has no duty to retreat before using self-defense. * * * * If the rebuttable presumption applies, and if the weight of the evidence of self-defense is equally balanced, or if you are unable to determine which side has adduced the preponderance of the evidence on the issue of self-defense, then the State has not rebutted the presumption that [the] Defendant * * * acted in self-defense, and you must find [the defendant] not guilty of Murder and not guilty of Reckless Homicide.”
{¶ 22} After instructing the jury, the trial court asked whether either party had any objections. Defense counsel stated: “We would just ask to preserve our initial filing that we‘ve made requesting * * * McClellan Instruction in 427.”
{¶ 23} On October 28, 2010, the jury (1) found appellant not guilty of murder, but guilty of the lesser included offense of reckless homicide, in violation of
I
{¶ 24} In his first assignment of error, appellant asserts that sufficient evidence does not support his reckless homicide conviction and that his conviction is against the manifest weight of the evidence. In particular, appellant contends that the evidence shows that he presumptively acted in self-defense and “[a]s such, no rational trier of fact could have found all the essential elements of reckless homicide beyond a reasonable doubt.” Appellant thus asserts that the trial court should have determined that the state failed to present sufficient evidence to sustain his conviction.
{¶ 25} Appellant additionally argues that the jury‘s reckless homicide conviction is against the manifest weight of the evidence when the greater weight of the evidence shows that he presumptively acted in self-defense. Appellant contends that the manifest weight of the evidence shows that Pig (1) was in the process of unlawfully and without privilege to do so entering, or had unlawfully and without privilege entered, the vehicle that appellant occupied, (2) Pig did not have a right to be in the vehicle and (3) appellant was not in the vehicle unlawfully. Appellant more specifically argues that Pig
“engaged in a course of conduct in which Pig drove his car up to [appellant]‘s, got out of the car and ran up to [appellant]‘s window. Moreover, the autopsy suggested that [Pig] was leaning forward toward the gun when it was fired. And although Brandon Harris was the one who punched through the car window, he testified that [Pig] was standing directly next to him, so close that their arms were touching. Pig had made explicit threats against [appellant], and he participated in the attack equally with his brother. The record displays abundant evidence that [Pig] was in the process of entering [appellant]‘s car.”
{¶ 27} Appellant next argues that even if the
{¶ 28} The state asserts that the jury‘s determination that the
A
STANDARD OF REVIEW
{¶ 29} Initially, we observe that within his first assignment of error, appellant uses both the sufficiency-of-the-evidence and manifest-weight-of-the evidence standards of review. The two standards, however, represent legally distinct concepts. State v. Elmore, 111 Ohio St. 3d 515,
1
Sufficiency of the Evidence
{¶ 30} A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266, 900 N.E.2d 565, 113, citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). In reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
{¶ 31} The sufficiency-of-the-evidence standard is inapplicable when a defendant raises an affirmative defense as justification for the crime. See State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 38, quoting Jackson, 443 U.S. at 324 (stating that the sufficiency of the evidence standard “‘must be applied with explicit reference to the substantive elements of the criminal offense‘“); State v. Wilson, 8th Dist. No. 97350, 2012-Ohio-1952, ¶¶ 35 and 39. Whether a defendant established an affirmative defense does not relate to whether the state presented sufficient evidence to support the essential elements of the crime charged, but instead, it seeks to relieve the defendant of criminal responsibility. Wilson at ¶ 39, quoting State v. Dykas, 185 Ohio App. 3d 763, 2010-Ohio-359, 925 N.E.2d 685, ¶ 18 (stating that “‘a defendant
{¶ 32} In the case at bar, appellant does not dispute whether the state presented sufficient evidence regarding the essential elements of reckless homicide. Rather, he disputes whether the jury should have rejected a reckless homicide conviction when he presented evidence of presumptive self-defense, an affirmative defense. Because this argument does not challenge the sufficiency of the state‘s evidence to establish the elements of reckless homicide, we find it inappropriate in the sufficiency-of-the-evidence context. We do, however, find it cognizable under a manifest-weight-of-the evidence standard.
2
Manifest Weight of the Evidence
{¶ 33} When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence, and consider the credibility of witnesses. Thompkins, 78 Ohio St. 3d at 387. Accord State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. A reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. See State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. “‘Because the trier of fact sees and hears the witnesses and is particularly competent to decide “whether, and to what extent, to credit the testimony of particular witnesses,” we must afford substantial deference to its determinations of credibility.‘” Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist. No. 16288 (Aug. 22, 1997). Thus, we leave the issues of weight and credibility of the evidence to the fact finder, as long as there is a rational basis in the record for its decision. State v. Picklesimer, 4th Dist. No. 11CA9, 2012-Ohio-1282, ¶ 24. Accord State v. Howard, 4th Dist. No. 07CA2948, 2007-Ohio-6331, ¶ 16 (“We will not intercede as long as the trier of fact has some factual and rational basis for its determination of credibility and weight.“).
{¶ 34} Once the reviewing court finishes its examination, the court may reverse the judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Thompkins, 78 Ohio St. 3d at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). If the prosecution presented substantial evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established, the judgment of conviction is not against the manifest weight of the evidence. E.g., State v. Eley, 56 Ohio St. 2d 169, 383 N.E.2d 132 (1978), syllabus. Thus, “‘” [w]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.“‘” State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186, 867 N.E.2d
B
RECKLESS HOMICIDE
{¶ 35}
{¶ 36} Appellant does not dispute the quantity or quality of the state‘s evidence regarding the elements necessary to establish the reckless homicide charge. Instead, he asserts that his reckless homicide conviction is against the manifest weight of the evidence because the greater weight of the evidence shows that he presumptively acted in self-defense under
C
SELF-DEFENSE
{¶ 37} “Self-defense is an affirmative defense that, if proved, relieves a defendant of criminal liability for the force that the defendant used.” State v. Kozlosky, 195 Ohio App. 3d 343,
{¶ 38} To establish self-defense, the defendant bears the burden to prove, by a preponderance of the evidence, that “‘(1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger.‘” State v. Goff, 128 Ohio St. 3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36, quoting State v. Thomas, 77 Ohio St. 3d 323, 326, 673 N.E.2d 1339 (1997). The “elements of self-defense are cumulative. * * * [Thus, i]f the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.” State v. Jackson, 22 Ohio St. 3d 281, 284, 490 N.E.2d 893 (1986) (emphasis sic). Accord State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 73; State v. Hargrave, 4th Dist. No. 11CA907, 2012-Ohio-798, ¶ 16.
{¶ 39}
“when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.”
This rebuttable presumption means that the defendant no longer carries the initial burden to
{¶ 40} For the presumption to apply, a defendant must establish that (1) the person against whom the defendant used defensive force was in the process of unlawfully entering, or had unlawfully entered, the residence or vehicle that the defendant occupied, (2) the defendant was in the vehicle lawfully, and (3) the victim did not have a right to be in the vehicle. If the presumption applies, the state may rebut it.
1
The Jury Rationally Rejected the Self-defense Presumption
{¶ 41} In the case sub judice, appellant argues that the greater weight of the evidence shows that (1) he was in the vehicle lawfully, (2) Pig did not have a right to be in the vehicle, and (3) Pig was in the process of entering the vehicle. The state contends that conflicting evidence exists as to whether Pig was in the process of entering the vehicle and that the jury rationally
{¶ 42} At trial, two witnesses testified about the altercation that Pig was not in the process of entering the vehicle when appellant shot him. Brandon stated that appellant discharged the gun at the same time that Brandon‘s fist hit the window. Lauren testified similarly. Brandon stated that Pig was standing next to him outside the vehicle and that neither one attempted to drag appellant out of the vehicle. Lauren also stated that she did not see Brandon or Pig attempt to drag appellant out of the vehicle. Brandon‘s and Lauren‘s version of the altercation conflicts with appellant‘s.
{¶ 43} Appellant claims that Brandon and Pig attempted to drag him out of the vehicle. He points to the coroner‘s testimony that the bullet trajectory was consistent with Pig leaning towards the vehicle and to her testimony that the bullet found in Pig‘s body did not contain glass fragments. Appellant argues that the coroner‘s testimony thus leads to the inferences that (1) Pig, by leaning towards the vehicle, must have been reaching in and attempting to drag him out, and (2) appellant did not shoot the weapon until after Brandon had broken the window. The jury, however, rationally could have discredited appellant‘s story and concluded that Brandon‘s and Lauren‘s version of the altercation was more credible than appellant‘s. Even if the jury believed that Pig was leaning forward, it did not necessarily have to believe that Pig was in the process of unlawfully entering the vehicle. Likewise, if the jury believed that Brandon broke the glass before appellant fired the weapon, it did not necessarily have to believe that Pig was in the process of unlawfully entering the vehicle. As the state observed, Brandon, not Pig, broke the window. Appellant did not shoot Brandon. Instead, he shot Pig.
{¶ 45} In sum, we cannot state that the jury, in resolving the conflicting evidence, clearly lost its way when it determined that appellant was not entitled to the self-defense presumption. State v. Clellan, 10th Dist. No. 09AP-1043, 2010-Ohio-3841 (holding that defendant not entitled to self-defense presumption when evidence conflicted as to whether the victim was in the process of entering the vehicle); Petrone at ¶ 73 (concluding jury could have rejected self-defense presumption when conflicting evidence presented as to whether victim tried to enter defendant‘s vehicle). See State v. Miller, 12th Dist. No. CA2009-10-138, 2010-Ohio-3821 (stating that altercation occurring outside of one‘s vehicle, with no attempt by the victim to enter the defendant‘s vehicle, does not implicate the Castle Doctrine).
2
Even if the Presumption Applied, the Jury Could Have Rationally Determined that the State Rebutted It
{¶ 46} In the case sub judice, the jury could have also determined that the presumption applied, but that the state rebutted the presumption by a preponderance of the evidence. Appellant argues that the jury could not have determined that the state rebutted the presumption because the state failed to offer any evidence that (1) Pig had a right to be in the vehicle, or (2) appellant was unlawfully in the vehicle. Appellant claims that the only way the state may rebut the presumption is by showing one of the two foregoing circumstances. Resolving this issue requires us to
a
Statutory interpretation
{¶ 47} The interpretation of a statute is a question of law that we review de novo. In re Adoption of B.M.W., 4th Dist. No. 10CA899, 2010-Ohio-5214, ¶ 13.
“The primary goal of statutory construction is to ascertain and give effect to the legislature‘s intent in enacting the statute. The court must first look to the plain language of the statute itself to determine the legislative intent. We apply a statute as it is written when its meaning is unambiguous and definite. An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language.”
State v. Lowe, 112 Ohio St. 3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9 (citations omitted).
{¶ 48} While courts must liberally construe criminal statutes in the accused‘s favor,
{¶ 49} In the case at bar, we believe that the meaning of
b
(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
(2)(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.
(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.
(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.
{50} We believe that the statute plainly and unambiguously permits the state to rebut the self-defense presumption by means other than
{51} Furthermore, the effect of the self-defense presumption is to negate the defendant‘s burden to produce evidence that he was not at fault, that he had a reasonable belief of imminent danger and that his only means of escape was the use of force, and that he did not violate a duty to retreat. If a defendant establishes the self-defense presumption, then he need not present evidence regarding these three elements. Instead, the presumption, by definition, presumes that the defendant was not at fault, that he had a reasonable belief of imminent danger and that the only
{52} Further support for our decision may be found in an Attorney General Publication, Ohio‘s Concealed Carry Laws and Application (Rev. Apr. 27, 2012), 21-22.6 The publication states:
“The law presumes you to have acted in self-defense or defense of another when using deadly force if the victim had unlawfully and without privilege entered or was in the process of entering the residence or vehicle you occupy. The presumption does not apply if the defendant was unlawfully in that residence or vehicle. The presumption does not apply if the victim had a right to be in, or was a lawful resident of, the residence or vehicle.
The presumption of self-defense is a rebuttable presumption. The term ‘rebuttable presumption’ means the prosecutor, and not the defendant, carries the burden of producing evidence contrary to the facts that the law presumes. However, a rebuttable presumption does not relieve the defendant of the burden of proof. If the prosecutor provides sufficient evidence to prove that the defendant created the confrontation or that the use of deadly force was not reasonably necessary to prevent death or great bodily harm, then the presumption of self-defense no longer exists.”
Thus, the Attorney General interprets the statute in the same way.7 That is,
{53} Although appellant cites the pattern jury instructions to support his argument, those instructions are not binding upon this court. State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 57 (stating that the Ohio jury instruction handbook is “a respected and authoritative source of the law, but it is merely a product of the Ohio Judicial Conference and not binding on the courts”). Moreover, we do not believe that the pattern jury instructions regarding the self-defense presumption impose limits on the state‘s ability to rebut that presumption. The pattern instructions read:
“2. Presumption—Described. The defendant is presumed to have acted in (self defense) (defense of another) when using defensive force that was (intended) (likely) to cause death or great bodily harm to another if the person against whom the defendant force was used (was in the process of entering) (had entered), unlawfully and without privilege to do so, the (residence) (vehicle) occupied by the defendant.
3. Presumption—Rebuttable. The state claims the presumption that the defendant acted in (self defense) (defense of another) when using defensive force that was (intended) (likely) to cause death or great bodily harm to another does not apply. This presumption does not apply if the state proves by the greater weight of the evidence that
(A) the person against whom the defensive force was used (had a right to be in) (was a lawful resident of) the (residence) (vehicle).
(B) the defendant used the defensive force while in a (residence) (vehicle) and he/she was unlawfully, and without privilege to be, in that (residence) (vehicle).”
This instruction, like the statute, delineates two circumstances when the statute does not apply. To the extent the instructions can be construed to imply that these are the only two means by which the state may rebut the presumption under
{54} Having clarified the means by which the state may rebut the presumption, we can now consider whether the jury could have found the presumption applicable, but that the state rebutted it. The jury may have believed that Pig was in the process of unlawfully entering the vehicle, yet determined that appellant was not in imminent danger of death or great bodily harm and his only means of escape was to shoot the gun.
{55} The second element of self-defense requires a defendant to show that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was the use of deadly force. Goff at ¶ 36. This second element “is a combined subjective and objective test.” Thomas, 77 Ohio St.3d at 330. The person‘s belief must be objectively reasonable under the circumstances and he must subjectively believe he needed to resort to force to defend himself. Id. at 330–331.
“The objective part of the test requires consideration of ‘whether, considering all of the defendant‘s particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable person would believe that danger was imminent.”
State v. Hendrickson, 4th Dist. No. 08CA12, 2009-Ohio-4416, ¶ 30, quoting State v. Keith, Franklin App. Nos. 08AP-28, 08AP-29, 2008-Ohio-6122, ¶ 23, citing Thomas, 77 Ohio St.3d at 330. The subjective part requires consideration of whether the defendant himself actually believed that he was in imminent danger. Id.
{56} Another component contained within the second element is the defendant‘s bona fide belief that the use of force was the only means of escape. Part of this entails a showing that the defendant used “only that force that is reasonably necessary to repel the attack.” Hendrickson
{57} This rule applies even if a defendant is attacked in his residence or vehicle. A defendant who is attacked in his or her residence or vehicle does not possess a license to kill. Attorney General Publication, supra, at 21-22 (stating that “being a lawful occupant of a residence or vehicle is not a license to use deadly force against an attacker,” but instead, “[t]he person who is attacked, without fault of his own, may use deadly force only if he reasonably and honestly believed that deadly force was necessary to prevent serious bodily harm or death.”).8 Instead, the defendant may only use deadly force if necessary to prevent death or great bodily injury. Thomas, 77 Ohio St.3d at 327 (stating that defendant attacked in own home may use deadly force “if necessary”); State v. Seymour, 4th Dist. No. 90CA38 (Nov. 9, 1993) (rejecting argument that defendant may use “any force necessary to repel her attacker”); State v. Miskimins, 435 N.W.2d 217, 222 (S.D. 1989), quoted in State v. Pelligrino, 577 N.W.2d 590, 595 (S.D. 1998) (stating that
{58} This rule does no violence to the castle doctrine. Contrary to popular opinion, the castle doctrine is not intended to be a license to kill. See Attorney General Publication, supra. Instead, under the castle doctrine, the amount of force a defendant used to repel the attacker is presumptively reasonable. The castle doctrine presumes that the amount of force used was necessary and unavoidable. Thus, when a defendant is attacked in his home or vehicle, the defendant “may use all necessary force to eject the intruder, whom [the defendant] may kill in doing it, if this extreme measure seems unavoidable.” Pelligrino, 577 N.W.2d at 596, quoting Russell v. State, 54 So. 361 (Fla. 1911), quoting 1 Bishop‘s Crim. Law, Section 859. “On the other hand, people ‘do not hold their lives at the mercy of unreasonable fears or excessive caution of others, and if from such motives human life is taken, there is no justification.‘” Pelligrino at 597, quoting Harris v. State, 104 So.2d 739, 744 (Fla. Ct. App. 1958). The state, therefore, may rebut the presumption that the defendant‘s use of force was necessary and unavoidable.
{59} In the case at bar, we believe that the jury may have found that appellant‘s use of deadly force was unnecessary and avoidable. The jury may have believed that instead of using deadly force, (i.e., shooting the gun), appellant could have escaped the confrontation simply by
{60} This is not to suggest that appellant had a duty to retreat. Under
{61} Additionally, the jury could have determined that it was not objectively reasonable for appellant to believe that Pig posed an imminent danger of death or great bodily harm. Appellant was seated in a vehicle with a gun. Pig was standing outside the vehicle, and, according to the state‘s witnesses, was unarmed. Moreover, some of the state‘s witnesses disputed appellant‘s claim that Pig was attempting to drag him from the vehicle. They stated that they did not see Pig attempt to drag appellant from the vehicle. Thus, the jury may have concluded that the evidence failed to demonstrate that appellant reasonably felt an imminent danger of death or great bodily harm. Consequently, we disagree with appellant that the state could not have rebutted the self-defense presumption when it failed to present evidence that one of the two
{62} For these same reasons, we reject appellant‘s argument that the manifest weight of the evidence establishes that he acted in accordance with the traditional notion of self-defense. Even using the traditional elements of self-defense without regard to the castle doctrine, the jury may have found that appellant used more force than reasonably necessary or that it was not objectively reasonable for appellant to believe that Pig posed an imminent danger of death or great bodily harm. Consequently, based upon our review of the record, we cannot state that the jury clearly lost its way when it rejected appellant‘s self-defense theory.
{63} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II
{64} In his second assignment of error, appellant asserts that the trial court abused its discretion by instructing the jury that the state could rebut the self-defense presumption by establishing that appellant did not meet the three common law self-defense elements. Appellant argues that once the
{65} Initially, we question whether appellant properly preserved this alleged error. He
{66} Under Crim.R. 30(A) “a party may not assign as error the giving or failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.” (Emphasis added). When a party fails to properly object, then the party waives all but plain error. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 51; State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus. In the case at bar, appellant generally objected to the court‘s failure to give his requested instruction. Appellant did not, however, specifically object to the court‘s rebuttal instructions. Thus, except for plain error, appellant has waived this issue.
{67} Plain error exists when the error is plain or obvious and when the error “affect[s] substantial rights.” Crim.R. 52(B). The error affects substantial rights when “‘but for the error, the outcome of the trial [proceeding] clearly would have been otherwise.‘” State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, 868 N.E.2d 1018, ¶ 11, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Courts ordinarily should take notice of plain error “with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 78;
{68} Generally, a trial court has broad discretion to decide how to fashion jury instructions. The trial court must not, however, fail to “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is “‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.‘” State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993), quoting State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d 865 (1973), paragraph one of the syllabus.
{69} “In examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and ‘must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party‘s substantial rights.‘” Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652 N.E.2d 671 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208, 560 N.E.2d 165 (1990). Whether the jury instructions correctly state the law is a question of law which we review de novo. State v. Neptune, 4th Dist. No. 99CA25 (Apr. 21, 2000).
{70} In the case sub judice, we do not believe that the trial court misstated the law when
{71} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment & Opinion
McFarland, J.: Concurs in Judgment Only
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.