{¶ 1} Dеfendant-appellant Chantal Pepin-McCaffrey appeals after Mahoning County Court No. 4 found her guilty of domestic violence. Besides raising issues concerning sufficiency and weight of the evidence, appellant also contends that the trial court improperly believed that the affirmative defense of self-defense was not available to a defendant who had not filed pretrial notice with the state regarding that defense. Because the trial court sustained the state’s objection on this improper basis and prematurely opined that appellant could not establish self-defense, appellant’s conviction is reversed, and this case is remanded for a new trial.
{¶ 2} On October 28, 2008, Stephen McCaffrey called 9-1-1 and reported to Austintown police officers that his wife, appellant, punched him in the groin while he was trying to descend the stairway. Appellant, who appeared very upset and intoxicated, admitted to police that this was true, but she claimed that McCaffrey had kicked the dog, to which he responded that he had merely moved the dog with his foot. She also stated that she grabbed her husband to defend herself. Appellant was arrested for domestic violence.
{¶ 3} At a trial to the bench, the defense questioned the officer as to whether he was concerned about a possible language barrier as appellant is French Canadian. He noted that he had responded to calls at this residence before, that apрellant is intelligent and articulate, and that he was not concerned with any language barrier.
{¶ 4} McCaffrey testified that his wife came home intoxicated and that she accepted more to drink from him. When he went upstairs to say goodnight to their children, appellant blocked his path from the children’s bedroom and accused him of stealing her keys. Their daughter searchеd his pockets and did not find appellant’s keys. He testified that as they began to descend the stairs, appellant stopped in front of him, blocking his descent, and made more accusations about her keys. McCaffrey stated that appellant’s small dog was moving around behind him, and he pushed it with his foot so he could move back.
{¶ 5} Appellant then yelled that McCaffrey had kiсked the dog, at which point McCaffrey turned around. He testified that appellant then punched him in the groin from where she was standing two steps below him. He stated that he doubled over, and appellant stepped aside, at which point he called 9-1-1.
{¶ 6} Many of the words exchanged could be heard on a digital recorder that appellant wore that night and that was played on the record. For instance, appellant can be heard demanding her keys even after their daughter searched her father’s pockets and found no keys. After McCaffrey told his children that he loved them, appellant told their children that their father does not love them. At that point, an argument ensued over whether appellant had kicked the dog. It seems that McCaffrey stated, “I didn’t kick the dog. This is kicking the dog.” McCaffrey testified after listening to the recorder, that he did not hear anything that sounded like physical contact. However, a striking sound is discernible after his statement about kicking the dog but before he told his children, “She just hit me.”
{¶ 7} Appellant testified that she had not been drinking until her husband served her two or three shots of vodka. She suggested that hе may have put something in her drink. She claimed that she was not in front of him or blocking
{¶ 8} Appellant testified that she did not know what “groin” meant when she admitted to police that she did what she was accused of doing. She alsо testified that she did not punch him and that she believed that “strike” could include “push.” She denied that she was trying to hurt him when she pushed him and urged that if a man had been punched in the groin, he would have made a sound of pain that could be heard on the tape recorder. She contested the elements of knowingly causing or attempting to cause physical harm, and she attemptеd to raise the affirmative defenses of self-defense and defense of her dog.
{¶ 9} The court found appellant guilty of domestic violence. The court sentenced her to 180 days in jail, but the sentence was suspended on the condition of successful completion of one year of community control, an anger-management class, and an alcohol assеssment. This timely appeal followed.
ASSIGNMENT OF ERROR NO. ONE
{¶ 10} Appellant sets forth three assignments of error, the first of which provides:
{¶ 11} “The state and the court denied defendant a fair trial and due process of law by requiring that a notice of self-defense be filed.”
{¶ 12} McCaffrey testified first. During his cross-examination, the defense asked him about prior acts or accusations of domestic violence. This assignment of error is based upon the following discussion:
{¶ 13} “[Defense Counsel]: And that you had a domestic violence—
{¶ 14} “[Prosecutor]: Your Honor, I’m going to object. There has been no filing of any affirmative defense in this case of self-defense.
{¶ 15} “[Judge]: Is that what you’re alleging? I don’t know where you’re going, but—
{¶ 16} “[Defense Counsel]: It is self defense, Your Honor.
{¶ 17} “[Prosecutor]: No.
{¶ 18} “[Judge]: I mean I’m going to sustain the objection just based on the recording I heard. I don’t know how you’re raising that as a defense. But you can ask another question.
{¶ 19} “[Defense Counsel]: As far as not asking about the prior domestic violence to ask—
{¶ 20} “[Judge]: Yeah, I’m saying, I don’t know anything about it, just for the record. Is there something—
{¶ 21} “[Prosecutor]: The State is not aware of a prior domestic violence conviction.
{¶ 22} “[Defense Counsel]: But you did in fact have a conviction out of the State of Michigan against your wife; is that correct? Is that correct?
{¶ 23} “A: Yes.
{¶ 24} “Q: And in July of this past year your wife had filed a domestic violence against you in this very same court; is that correct?
{¶ 25} “A: Filed, yes.
{¶ 26} “Q: And then she dismissed it?
{¶ 27} “A: I don’t know if it was dismissed. It was reduced to disorderly conduct. The complaint was never signed, as far as I know; I’m understanding.
{¶ 28} “Q: And was there also another case against you for harming her in 2002 in Mahoning Cоunty?
{¶ 29} “[Prosecutor]: Your Honor, I’m going to object. There has been no affirmative—
{¶ 30} “[Judge]: I mean, I just don’t see how you’re going to substantiate the recording that we heard — there’s—I don’t know how you’re going to present that defense.
{¶ 31} “[Prosecutor]: They have to give us notice as an affirmative defense. And then they, by doing that they admit that they committed the act.
{¶ 32} “[Judge]: I’m going to present your position here. Because that’s what the affirmative defense does, you do admit that the act occurred and that your client committed the act. [Defense counsel then asked for a recess after which she questioned Mr. McCaffrey on other subjects].”
{¶ 33} As the state concedes on appeal, the prosecutor’s grounds for objecting were incorreсt. There is no law or rule requiring a criminal defendant to provide notice of the affirmative defense of self-defense or defense of property. State v. Orban (Dec. 31, 1985), 11th Dist. No. 1515,
{¶ 35} Initially, we address the state’s counterargument as to one of appellant’s defenses. The state claims that defense of an animal is not recognized as a defense in Ohio because an animal would not fall within the “defense of another” category. However, as the state suggested at trial, a dog is personal property. Defense of property is a recognized defense in Ohio. See, e.g., State v. Bruckner (Sept. 30, 1993), 8th Dist. No. 63296,
{¶ 36} The state also argues that notwithstanding the court’s sustaining of the state’s objection regarding her defense, appellant was in fact able to present her defense as she elicited some testimony on prior domestic-violence allegations and was not prohibited from testifying that she feared McCaffrey, who was kicking the dog and coming toward her. Although the court subsequently allowed some further questions on appellant’s domestic-violence background, appellant was not permitted to question McCaffrey on a 2002 domestic-violence charge. Moreover, the court did sustain the state’s objection. Thus, counsel may have felt constrained from presenting certain other evidence in her case-in-chief.
{¶ 37} Furthermore, this objection specifically and erroneously relied upon an assertion that one cannot present an affirmative defense of self-defense unless the state has been given notice of the defense. In sustaining the objection, the transcript states that the court stated: “I mean I’m going to sustain the objection just based on the recording I heard. I don’t know how you’re raising that as a defense.”
{¶ 38} The state notes that before an affirmative defense can be submitted to a trier of fact, the defendant has the burden to present sufficient evidence concerning the defense at trial. See State v. Melchior (1978),
{¶ 40} In any event, the state is misapplying the law that the defendant has the burden to present sufficient evidence concerning an affirmative defense at trial before such defense can be presented to the trier of fact. That is, one cannot determine if the defendant met her burden on the affirmative defense until the evidence is closed. This cannot be done during the state’s case.
{¶ 41} Thus, a court cannot exclude evidence (during the state’s case for that matter) on the basis that the defendant cannot meet his or her burden when such evidence is being presented in order to do just that. In other words, the defendant was prohibited from attempting to meеt her R.C. 2901.05(A) burden of production and her burden of proof on the grounds that she would not likely be able to meet such burdens.
{¶ 42} Finally, the state sets forth the general rules that there is a presumption in a bench trial that the court considered the relevant evidence and that the exclusion of irrelevant evidence is harmless. As to the latter argument, evidence tending to establish the еlements of self-defense or defense of property was not irrelevant. As to the former argument, the trial court could not evaluate evidence that it never had a chance to hear. Additionally, the presumptions mentioned are not irrebutable, and the transcript here rebuts any presumption that the court actually considered her affirmative defensеs.
{¶ 43} We must also point out that the trial court misconstrued the recording as a bar to her defense. Besides the fact that the lack of a defense should not be prematurely judged, the court’s reliance on the recording as some piece of ultimate evidence that would bar the presentation of a defense is misplaced. Notably, after listening to the tape, McCaffrey testified that he said, “I didn’t kick the dog,” then he got punched in the groin, and then he said, “That’s enough of that.” However, one could more easily construe McCaffrey’s statement as “I didn’t kick the dog. This is kicking the dog.” (Emphasis added.) It is at this point that one can hear a noise sounding like some kind of strike.
{¶ 44} This construction of the evidence further supports appellant’s defense-of-prоperty claim, which the court seemed to have preemptively dismissed outright based upon its construction of the recording before even giving appellant a chance to present her case. Although this discussion seems more pertinent to a
{¶ 45} Considering the court’s misconstruction of the recording, the court’s premature adjudication of her defense as incredible and even unpresentable, and the court’s sustaining of an objection made on a wholly erroneous ground, we are compelled to sustain this assignment of error. Based upon the totality of the aforementioned сircumstances, we hereby reverse and remand for a new trial.
ASSIGNMENT OF ERROR NO. TWO
{¶ 46} Appellant’s second assignment of error alleges:
{¶ 47} “The verdict is against the sufficiency of the evidence.”
{¶ 48} Although we are remanding for a new trial under the first assignment of error, we must still discuss sufficiency because a conviction based upon insufficient evidence bars retrial. State v. Thompkins (1997),
{¶ 49} Sufficiency of the evidence is a legal question dealing with adequacy. Thompkins,
{¶ 50} The state acknowledges that a conviction that is not supported by sufficient evidence on each essential element is a due process violation. See Thompkins,
{¶ 52} In fact, even before Carter and Jones extended the concept to a jury trial, the rule was well established that a not-guilty plea preserves sufficiency for purposes of appeal after a bench trial (which was the case here). Dayton v. Rogers (1979),
{¶ 53} Appellant was charged with domestic violence in violation of R.C. 2919.25(A), which entails knowingly causing or attempting to cause physical harm to a family or household member. “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain rеsult or will probably be of a certain nature.” R.C. 2901.22(B). Physical harm means “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).
{¶ 54} Appellant followed McCaffrey upstairs and blocked him from leaving their daughters’ room as she accused him of taking her keys. She then told her children that their father did not love them. According to McCaffrey, appellant blockеd his way again on the stairs and then punched him in the groin with a
{¶ 55} In fact, appellant concedes that if she punched her husband in the groin with a closed fist, then sufficient evidence would exist here. Her arguments are essentially based upon her claim that McCaffrey’s testimony is not credible. However, because some rational fact-finder could find the essential elements here, this argument is more appropriately addressed under the weight-of-the-evidence assignment presented below.
ASSIGNMENT OF ERROR NO. THREE
{¶ 56} Appellant’s third assignment of error contends:
(¶ 57} “The verdict is against the manifest weight of the evidence.”
{¶ 58} Because we are reversing and remanding for a new trial, the trial court’s weighing of the evidence and credibility determinations are moot. Thus this assignment of error will not be addressed.
{¶ 59} For the foregoing reasons, the judgment of the trial court is hereby reversed, and this cause is remanded for a new trial.
Judgment accordingly.
Notes
. We recognize that Haslam cited State v. Robinson,