{¶ 2} On the afternoon of June 12, 2007, a 911 caller informed the Columbus Police Department of a physical altercation between two black men and a woman at an apartment located at 482 South James Road in Columbus, Ohio. Columbus Police *2 Officers Todd Rhodeback and Matthew Dunbar arrived at the apartment within a few minutes. As they approached the front door of the apartment, Officer Rhodeback saw two black men sitting in the living room. He also saw several bags of a green leafy substance that he thought was marijuana on the coffee table. Officer Rhodeback asked one of the men, later identified as appellant, if there was a woman in the apartment. Appellant said there was, and motioned upstairs. The officers then entered the apartment without a warrant.
{¶ 3} Once the officers were inside the apartment, a woman, later identified as Sara Dave, came down the stairs and asked the officers why they were in her apartment. The officers told her about the 911 call. Although the evidence was conflicting concerning what Dave told the officers about the alleged assault, she said she was now fine. The two men then produced proof of identification pursuant to the officers' request. Officer Dunbar went to his police car to run a computer check on both men. Officer Dunbar learned that appellant recently had been arrested for carrying a concealed weapon. Because of that recent arrest, Officer Dunbar returned to the apartment and indicated to Officer Rhodeback that appellant may be armed.
{¶ 4} At that point, the officers asked appellant to stand up so they could pat him down for weapons. Officer Rhodeback began to frisk appellant. Officer Rhodeback felt something in appellant's pocket that he believed was contraband. Officer Rhodeback sensed that appellant was beginning to tense up, so he asked Officer Dunbar to place appellant in handcuffs so that he could finish patting him down. Before he could be handcuffed, appellant broke free from the officers and headed for the front door. The officers stopped him at the front door and a struggle ensued. Appellant lifted Officer *3 Rhodeback off the ground and threw him down on a couch. Officer Dunbar then called for backup. Appellant continued to struggle with Officer Dunbar and ultimately threw him down onto the floor. Officer Rhodeback regained his footing and punched appellant in the face, knocking appellant to the ground. The officers were then able to handcuff appellant and regain control over him.
{¶ 5} Shortly thereafter, other officers appeared at the apartment. Officer Jeffrey Lipp arrived on the scene as Officers Rhodeback and Dunbar were placing appellant in handcuffs. Officer Lipp entered the apartment. Dave pointed out to him a baggie on the ground that appeared to contain crack cocaine. Dave told Officer Lipp that the baggie belonged to appellant. Dave also gave Officer Lipp consent to search the apartment. Officer Lipp searched the apartment and, under a couch, found a firearm as well as an electronic scale. Officer Lipp also found another baggie containing what appeared to be crack cocaine on the floor near the front door.
{¶ 6} As a result of these events, appellant was indicted in these two cases with one count of aggravated robbery in violation of R.C.
{¶ 7} Before trial, appellant filed a motion to suppress any evidence obtained by the police after they entered the apartment. Appellant alleged the officers violated his
{¶ 8} The jury found appellant guilty of two counts of assault and one count of possession of cocaine. The jury found him not guilty of two counts of possession of cocaine and one count of aggravated robbery.1 The trial court sentenced appellant accordingly.
{¶ 9} Appellant appeals and assigns the following errors:
*5I. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT DID NOT HAVE STANDING TO ASSERT
FOURTH AMENDMENT PROTECTIONS AGAINST WARRANTLESS ENTRY AND ILLEGAL SEARCH AND SEIZURE.II. THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENSE A JURY INSTRUCTION ON SELF DEFENSE.
III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENSE A JURY INSTRUCTION ON DISORDERLY CONDUCT AS A LESSER INCLUDED OFFENSE OF ASSAULT.
{¶ 10} Appellant contends in his first assignment of error that the trial court erred when it determined that he lacked standing to challenge the lawfulness of the officers' entry into the apartment. We agree.
{¶ 11} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Groce, Franklin App. No. 06AP-1094,
{¶ 12} The
{¶ 13} It is well established that an overnight guest has a legitimate expectation of privacy in the host's home and, therefore, has capacity to challenge the legality of a search of that home. Olson, at 98;Minnesota v. Carter (1998),
{¶ 14} The State argues that the trial court did not believe that appellant was an overnight guest because it found that appellant's testimony was not credible. We disagree. Nothing in the transcript of the suppression hearing indicates that the trial court found that appellant was not an overnight guest or that his testimony was not credible. Nor did the State present any evidence that disputed appellant and Dave's testimony that appellant was, at least, an overnight guest. See Peterson, at ¶ 12-15; Pinson. Contrary to the trial court's conclusion, appellant, as an overnight guest, had a legitimate expectation of privacy in Dave's apartment and, therefore, had the capacity to challenge the lawfulness of the officers' entry.
{¶ 15} The State also argues that appellant did not have a reasonable expectation of privacy because he displayed marijuana in plain view of the officers standing outside the front door of the apartment. This argument confuses appellant's capacity to challenge a search with the merits of the challenge.
{¶ 16} Under
{¶ 17} We also note that in the case at bar, there was no evidence presented at the suppression hearing that appellant or any of the occupants of the apartment engaged in illegal activity in plain view of the officers standing at the front door. Evidence of marijuana in plain view of the officers was introduced through the officers' testimony at trial, not during the suppression hearing. The trial court never reached the merits of appellant's constitutional challenge during the suppression hearing because it found that appellant lacked standing to assert the challenge.
{¶ 18} As we determined above, appellant, as an overnight guest, had capacity to challenge the legality of the officers' entry into the apartment. The trial court erred in finding otherwise. On remand, the trial court can address the merits of appellant's
{¶ 19} Our resolution of appellant's first assignment of error only impacts his conviction for possession of cocaine. Appellant's conviction for assault is not impacted by the lawfulness of the officers' entry. Even if the officers' entry into the apartment was unlawful, that does not justify or privilege appellant's subsequent acts of assault.State v. *9 Christian, Mahoning App. No. 02 CA 170,
{¶ 20} Appellant contends in his second assignment of error that the trial court erred by refusing to instruct the jury on self-defense. We disagree.
{¶ 21} Self-defense is an affirmative defense. State v. Kroesen (Nov. 16, 2000), Franklin App. No. 00AP-48. In order for a defendant to have the jury instructed on an affirmative defense, the defendant must introduce sufficient evidence which, if believed, would raise a question in the minds of reasonable jurors concerning the defense. State v.Smith (Apr. 2, 2002), Franklin App. No. 01AP-848; State v. Melchior
(1978),
{¶ 22} To establish self-defense involving the use of non-deadly force, a defendant must prove (1) he was not at fault in creating the situation giving rise to the altercation, and (2) that he had a bona fide belief, even if mistaken, that he was in imminent danger of bodily harm and his only means to protect himself from such danger was by the use of force not likely to cause death or great bodily harm. State v.D.H.,
{¶ 23} The defendant's bona fide belief must be objectively reasonable under the circumstances, and the defendant must have subjectively and honestly believed that *10
danger was imminent. State v. Morris, Monroe App. No. 03 MO 12,
{¶ 24} Here, appellant did not testify at trial. His police interview was played to the jury. In that interview, however, appellant never stated that he felt in fear of imminent danger during the altercation with the officers. It appears he was more concerned about the officers reaching into his pockets. Because appellant failed to introduce sufficient evidence which, if believed, would raise a question in the minds of reasonable jurors concerning whether he had an honest belief that he was in imminent danger, appellant was not entitled to a jury instruction on self-defense. See State v. Johnson (June 30, 2000), Montgomery App. No. 18085 (no error refusing to instruct on self-defense where defendant did not present evidence of bona fide belief that he was in imminent danger); Kroesen (same). Appellant's second assignment of error is overruled.
{¶ 25} Lastly, appellant contends in his third assignment of error that the trial court erroneously declined to instruct the jury on the minor misdemeanor form of disorderly conduct as a lesser included offense of assault. We disagree. *11
{¶ 26} R.C.
{¶ 27} "`An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.'" Id. at ¶ 10, quoting State v.Deem (1988),
{¶ 28} In determining whether an offense is a lesser included offense of the charged offense, "`the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily defined, is necessarily included in a greater offense.'" State v.Barnes (2002),
{¶ 29} Assault, in violation of R.C.
{¶ 30} Appellant sought an instruction on the minor misdemeanor form of disorderly conduct contained in R.C.
{¶ 31} The first prong of the Deem test considers whether the alleged lesser included offense carries a lesser penalty than the charged offense. Here, appellant was found guilty of assault, a misdemeanor of the first degree. Because the victims were peace officers, the crime is enhanced to a felony of the fourth degree. Disorderly conduct in this case is a minor misdemeanor. Thus, the minor misdemeanor form of disorderly conduct under R.C.
{¶ 32} The second prong considers whether the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed. Because a person will necessarily cause inconvenience, annoyance or alarm to another by causing or attempting to cause them physical harm, and because recklessly is a lesser mental state than knowingly, assault cannot be committed without also committing disorderly conduct. See State v.Heffner (June 6, 1997), Montgomery App. No. 16230, citing State v.Roberts (1982),
{¶ 33} The third prong requires that some element of the greater offense is not required to prove the commission of the lesser offense. Assault requires that the offender cause or attempt to cause the victim physical harm. The minor misdemeanor form of disorderly conduct does not require this element. Instead, the offender must only cause inconvenience, annoyance, or alarm. Thus, the minor misdemeanor form of disorderly conduct under R.C.
{¶ 34} The minor misdemeanor form of disorderly conduct under R.C.
{¶ 35} This conclusion, however, does not end our analysis. The mere fact that an offense is a lesser included offense of a charged offense does not mean that the court must instruct on both offenses. State v.Wilkins (1980),
{¶ 36} In determining whether the evidence reasonably supports the lesser included offense instruction, "[t]he persuasiveness of the evidence regarding the lesser included offense is irrelevant."Wilkins, at 388. Instead, the trial court must give the lesser included offense instruction, "[i]f under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense." Id. The evidence must be considered in the light most favorable to the defendant. Id. An instruction is not warranted, however, every time "some evidence" is presented on a lesser included offense. See Shane, at 632-633.
{¶ 37} In this case, an instruction on disorderly conduct should have been given if the jury could have reasonably concluded that appellant did not knowingly cause or attempt to cause physical harm to the officers, but instead, recklessly caused inconvenience, annoyance, or alarm by engaging in violent or turbulent behavior. See State v.Beard (Dec. 14, 1998), Butler App. No. CA-98-02-019; State v. Yontz
(1999),
{¶ 38} The evidence presented at trial indicated that appellant engaged in a significant fight with the two officers after he broke away and headed for the front door. Appellant threw each officer onto the floor. Officer Rhodeback testified that he injured his finger as a result of the altercation and Officer Dunbar testified that he was out of work for three days due to a shoulder injury he sustained from the fight. Given these unrefuted facts, the jury could not reasonably have found appellant not guilty of assault (the greater offense) but guilty of the minor misdemeanor form of disorderly conduct (the lesser offense). See id., at 539-540; Ault. Thus, even though the minor misdemeanor form of disorderly conduct is a lesser included offense of assault, *15 appellant was not entitled to a jury instruction for disorderly conduct because he did not present evidence that would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. Robb.
{¶ 39} The trial court did not err in declining to instruct the jury on the minor misdemeanor form of disorderly conduct. Appellant's third assignment of error is overruled.
{¶ 40} In conclusion, we sustain appellant's first assignment of error and overrule his second and third assignments of error. We affirm appellant's convictions for assault but reverse his conviction for possession of cocaine. We remand the matter for the trial court to address the merits of appellant's motion to suppress and to proceed accordingly. In the event the trial court denies the motion to suppress on remand, it can reinstate the verdict. If the trial court grants the motion, a re-trial would be required on the possession of cocaine charge.
Judgment affirmed in part and reversed in part; and cause remandedwith instructions.
McGRATH, P.J., and BRYANT, J., concur.