STATE OF OHIO, Plaintiff-Appellee, - vs - MICHAEL T. OLSEN, Defendant-Appellant.
CASE NO. 2022-A-0071
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
June 30, 2023
[Cite as State v. Olsen, 2023-Ohio-2254.]
MARY JANE TRAPP, J.
Criminal Appeal from the Court of Common Pleas Trial Court No. 2021 CR 00497 Judgment: Affirmed
Decided: June 30, 2023
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor; Christopher R. Fortunato and Michael J. Bodyke, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, LLC, 323 West Lakeside Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Defendant-appellant, Michael T. Olsen (“Mr. Olsen”), appeals his conviction for one count of cruelty to companion animals, a fifth-degree felony, in violation of
{¶2} This matter involves an incident in which Mr. Olsen knowingly caused serious physical harm to another person’s pet dog by striking her in the head with a hatchet. The issue for the jury was whether Mr. Olsen acted in self-defense.
{¶3} Mr. Olsen presents three assignments of error, contending (1) the trial court committed plain error by giving an incorrect jury instruction on the burden of proof for self-
{¶4} After a careful review of the record and pertinent law, we find as follows:
{¶5} (1) The trial court correctly instructed the jury that Mr. Olsen had the burden of proving self-defense by a preponderance of the evidence.
{¶6} (2) Defense counsel’s failure to object was not deficient performance because the trial court correctly instructed the jury regarding self-defense against a dog.
{¶7} (3) The jury’s guilty verdict was not against the manifest weight of the evidence. The record indicates Mr. Olsen’s credibility was reasonably questionable; therefore, the jury did not clearly lose its way in rejecting his version of events.
{¶8} Thus, we affirm the judgment of the Ashtabula County Court of Common Pleas.
Substantive and Procedural History
{¶9} On October 21, 2021, Officer Metzger of the Conneaut Police Department was dispatched to a house on Buffalo Street to respond to a roommate dispute. When she arrived, she encountered Mr. Olsen’s brother, Ray Wadsworth (“Mr. Wadsworth”). Mr. Wadsworth was sitting on the front porch with a medium-sized, female dog named Ella, whose head Mr. Olsen had split open with a hatchet. Officer Metzger observed blood on and around Ella’s face, a displaced eye, and a large laceration that exposed a fractured skull and brain matter.
{¶11} Initially, Mr. Olsen said he had been in the kitchen, and Ella came after him. He swung a hatchet in self-defense and ran upstairs to his bedroom. Mr. Olsen’s story became increasingly inconsistent as the officer continued speaking with him. Mr. Olsen said Ella was old and senile when in fact she was just a puppy. He said he had not seen Ella in approximately eight months but then stated Ella bit him two months prior. He attempted to show Officer Metzger a scar on his arm, but the officer did not observe a scar or any other visible injuries. Mr. Olsen also said Ella had bitten a friend the day before. He told Officer Metzger the friend was there but then said the friend was not there.
{¶12} Mr. Olsen next told Officer Metzger he had opened Mr. Wadsworth’s bedroom door to speak to him, at which time Ella jumped off the bed and came after him. He closed the bedroom door, retrieved a hatchet from the basement, and reopened Mr. Wadsworth’s bedroom door. When Ella again jumped off the bed and came after him, he struck her in the head with the hatchet and ran upstairs to his bedroom.
{¶13} Officer Metzger took photos of Ella’s injuries, and she was taken to an emergency vet. Ella underwent surgery and subsequently made a full recovery.
{¶14} In December 2021, the Ashtabula County Grand Jury indicted Mr. Olsen on one count of cruelty to companion animals, a fifth-degree felony, in violation of
{¶16} Mr. Olsen testified in his own defense. He stated that on the night of the incident, he knocked on Mr. Wadsworth’s bedroom door, and Mr. Wadsworth told him to enter. Molly Schultz (“Ms. Schultz”), the dog’s owner, was also in Mr. Wadsworth’s bedroom. When Mr. Olsen opened the door, Ella came after him. He slammed the door, and Ms. Schultz began laughing. Mr. Olsen went into the basement to get a “wire nut” for his stereo. When he came out of the basement, Ms. Schultz intentionally opened the bedroom door so Ella would come after him, at which time he struck Ella in the head with a hatchet.
{¶17} Following the admission of exhibits, the defense renewed its motion for acquittal, which the trial court overruled.
{¶18} The record indicates that the trial court discussed the proposed jury instructions with counsel on two occasions. Prior to Mr. Olsen’s testimony, the trial court stated, “You were just handed a copy of the Charge. I have the wording for the Defendant’s testimony that also has the explanation of self defense under
{¶19} After the parties’ submission of evidence, the following exchange occurred:
{¶21} “[THE STATE]: Your Honor, the State does not have any additions or changes or corrections.
{¶22} “THE COURT: Okay. [Defense Counsel]?
{¶23} “[DEFENSE COUNSEL]: No. We’ve already requested all the additions, changes, corrections that we see as necessary.
{¶24} “THE COURT: And I’ve made the changes you’ve requested, correct?
{¶25} “[DEFENSE COUNSEL]: You have.
{¶26} Following closing arguments, the trial court instructed the jury, in relevant part, as follows:
{¶27} “The Defendant claims that a dog attacked him and he acted in self defense.
{¶28} “The burden of going forward with the evidence of the dog’s attack and the burden of proving this defense are upon the Defendant. He must establish such a defense by a preponderance of the evidence.”
{¶29} “* * *
{¶30} “A dog that is chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger or that kills or injures a person can be killed at the time of that chasing, threatening, harassment, approaching, attempt, killing, or injury. If in attempting to kill such a dog, a person wounds it, the person cannot be convicted of Cruelty to Animals.”
{¶32} Following deliberations, the jury returned a guilty verdict. The court held a sentencing hearing and sentenced Mr. Olsen to five years of community control, including 60 days in jail. Mr. Olsen filed a notice of appeal, and the trial court granted his request to stay his jail term pending appeal.
{¶33} Mr. Olsen asserts the following three assignments of error:
{¶34} “[1.] The Trial Court Plainly Erred by Giving an Incorrect Jury Instruction on the Burden of Proof for Self-Defense.
{¶35} “[2.] Appellant Received Ineffective Assistance of Counsel.
{¶36} “[3.] The Jury Returned a Verdict Against the Manifest Weight of the Evidence.”
Self-Defense Jury Instruction
{¶37} In his first assignment of error, Mr. Olsen contends the trial court committed plain error by incorrectly instructing the jury he had the burden of proving self-defense by a preponderance of the evidence. Mr. Olsen argues that under the current version of the self-defense statute, i.e.,
{¶38} Mr. Olsen did not object to the instruction in the trial court.
{¶39} The record suggests Mr. Olsen invited any error regarding the jury instructions. The invited error doctrine provides that “a party is not permitted to take advantage of an error that he himself invited or induced the court to make.” Davis v. Wolfe, 92 Ohio St.3d 549, 552, 751 N.E.2d 1051 (2001). Mr. Olsen requested changes to the trial court’s proposed jury instructions and expressly approved them in their final form. See State v. Sage, 6th Dist. Erie No. E-89-42, 1990 WL 187278, *3 (Nov. 30, 1990) (invited error found where “appellant expressly approved the jury instructions in the court below and thereby helped induce the error”). Invited error is not subject to plain error analysis. See State v. Thompson, 11th Dist. Portage No. 2018-P-0099, 2020-Ohio-67, ¶ 39.
{¶40} In any event, Mr. Olsen cannot establish plain error. To demonstrate plain error, an appellant must show (1) there was an error, (2) the error was “plain,” i.e., obvious, and (3) the error affected the appellant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). To show an error affected an appellant’s substantial rights, he or she must show “a reasonable probability that the error resulted in prejudice * * *.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶41} The trial court’s self-defense jury instruction was based on
{¶42} “Subject to divisions (A)(2) and (3) of section 955.261 of the Revised Code, a dog that is chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog, can be killed at the time of that chasing, threatening, harassment, approaching, attempt, killing, or injury. If, in attempting to kill such a dog, a person wounds it, the person is not liable to prosecution under the penal laws that punish cruelty to animals. Nothing in this section precludes a law enforcement officer from killing a dog that attacks a police dog as defined in section 2921.321 of the Revised Code.” (Emphasis added.)
{¶43} Thus, “
{¶44} As Mr. Olsen accurately notes, the current version of
{¶45}
{¶46} Thus, under
{¶47} Contrary to Mr. Olsen’s assertion, however,
{¶48} Since
{¶49} Mr. Olsen’s first assignment of error is without merit.
Ineffective Assistance of Counsel
{¶50} In his second assignment of error, Mr. Olsen contends that he received ineffective assistance of counsel when defense counsel failed to object to the trial court’s “erroneous” jury instruction.
{¶51} “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984). “Second, the defendant must show that the deficient performance prejudiced the defense.” Id.
{¶52} Defense counsel’s failure to object was not deficient performance because, as explained above, the trial court correctly instructed the jury regarding the burden of
{¶53} Mr. Olsen’s second assignment of error is without merit.
Manifest Weight of the Evidence
{¶54} In his third assignment of error, Mr. Olsen contends that even if the trial court properly instructed the jury regarding self-defense under
{¶55} “[W]eight of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “In other words, a review court asks whose evidence is more persuasive—the state’s or the defendant’s?” Id. “‘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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶56} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). “‘The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at 175.
{¶58} Mr. Olsen cites his “uncontroverted” trial testimony that Ella approached him in a threatening manner and attempted to bite him. However, Mr. Olsen was the only eyewitness who testified at trial, and the record suggests he changed his story on more than one occasion. In addition, Officer Metzger testified Mr. Olsen appeared to be quite intoxicated on the night of the incident. Since Mr. Olsen’s credibility was reasonably questionable, we cannot say the jury clearly lost its way in rejecting his version of events.
{¶59} Mr. Olsen’s third assignment of error is without merit.
{¶60} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.