[Cite as State v. Black, 2012-Ohio-2874.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2011 CA 00175
KIM BLACK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2010 CR 01902
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KRISTINE W. BEARD
PROSECUTING ATTORNEY 4450 Belden Village Street, NW
RENEE M. WATSON Suite 703
ASSISTANT PROSECUTOR Canton, Ohio 44718
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011 CA 00175 2
Wise, J.
{¶1} Appellant Kim Black appeals his conviction, in the Stark County Court of
Common Pleas, for aggravated assault. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.
{¶2} On November 22, 2010, appellant invited Donald Jones, Jay Miller, and
Christopher Hollis to his residence on East High Street in Alliance, Ohio, to hang out
and drink in the basement. After a couple of hours had passed, Mike Linder arrived,
having been invited by Donald Jones, a distant cousin. Tr. at 113. Soon, “everyone
was intoxicated,” and Linder joined in the drinking. Tr. at 124, 144. Later, when
appellant received a telephone call and went upstairs, Linder took it upon himself to go
into appellant’s liquor cabinet without permission. When appellant came back to the
basement, he decided to end the party and asked everyone to leave. According to
Christopher Hollis, appellant “wasn’t really mad” when he ended the party. Tr. at 146.
{¶3} As the men exited the house, Jones, Miller, and Linder started toward
Miller’s SUV parked across the street. Hollis stayed behind to talk to appellant, who
stood on his property in front of the house.1 Linder suddenly turned around and began
verbally insulting appellant, using several homosexual slurs. Linder then came back
across the street onto the property and suddenly punched appellant in the face. As
Miller sought to restrain Linder, appellant walked over to his truck, which was parked in
an alley next to the house. Appellant grabbed a tire iron from the truck and went back
to the sidewalk in front of the house.
1
Appellant’s house is very close to the road. According to Hollis, one “could step right
into the street off his porch.” Tr. at 148.
Stark County, Case No. 2011 CA 00175 3
{¶4} Linder looked over at appellant and told him he would make him “eat that
pipe.” Tr. at 151. Linder broke free of Miller and charged at appellant. Linder’s
subsequent tackle knocked appellant on his back, while Linder fell forward, off to the
side. Appellant then jumped back up and, as Linder was trying to get up, he struck
Linder in the face with the tire iron.
{¶5} Linder was taken to Alliance Community Hospital. As a result of the fight,
Linder suffered a detached retina and damage to his optic nerve, as well as other facial
injuries.
{¶6} On January 24, 2011, the Stark County Grand Jury indicted appellant on
one count of felonious assault, R.C. 2903.11(A)(1).
{¶7} The case proceeded to a jury trial on July 12 and 13, 2011. The State
called three witnesses: Linder, Hollis, and Alliance Police Officer Anthony Palozzi. No
defense witnesses were called. After hearing the evidence, the jury found appellant
not guilty of felonious assault, but guilty to the inferior offense of aggravated assault
(R.C. 2903.12). Via a judgment entry filed on July 20, 2011, appellant was sentenced
to a prison term of eighteen months.
{¶8} Appellant filed a notice of appeal on August 5, 2011. He herein raises the
following three Assignments of Error:
{¶9} “I. APPELLANT'S CONVICTION FOR AGGRAVATED ASSAULT IS
AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE
WHERE APPELLANT PROVED BY A PREPONDERANCE OF THE EVIDENCE THE
ELEMENTS OF THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE.
Stark County, Case No. 2011 CA 00175 4
{¶10} “II. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
GIVE AN INSTRUCTIONS (SIC) ON THE DEFINITION OF PERPONDERANCE (SIC)
OF THE EVIDENCE AND DUTY TO RETREAT AND IN FAILING TO INCLUDE A
SEPARATE FINDING OF SELF-DEFENSE ON THE VERDICT FORM; AND,
COUNSEL WAS INEFFECTIVE FOR IN (SIC) FAILING TO REQUEST A SPECIFIC
INSTRUCTION ON THE DEFINITION OF PERPONDERANCE (SIC) OF THE
EVIDENCE AND THE DUTY TO RETREAT AND FAILING TO REQUEST A
SEPARATE SELF-DEFENSE FINDING ON THE VERDICT FORM.
{¶11} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
GIVE THE JURY AN INSTRUCTION ON THE OFFENSE OF ASSAULT.”
I.
{¶12} In his First Assignment of Error, appellant contends his conviction for
aggravated assault was against the sufficiency and manifest weight of the evidence.
We disagree.
{¶13} As an initial matter, in regard to appellant’s “sufficiency of the evidence”
argument as to self-defense, we note the Ohio Supreme Court has recognized: “[T]he
due process ‘sufficient evidence’ guarantee does not implicate affirmative defenses,
because proof supportive of an affirmative defense cannot detract from proof beyond a
reasonable doubt that the accused had committed the requisite elements of the crime.”
State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 37, citing Caldwell v. Russell
(C.A.6, 1999), 181 F.3d 731, 740, abrogated on other grounds(internal quotations
omitted). In light of Hancock, we are restrained from addressing appellant’s
“sufficiency” argument and will instead focus on his “manifest weight” claim.
Stark County, Case No. 2011 CA 00175 5
{¶14} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶15} Ohio's aggravated assault statute, R.C. 2903.12, states in pertinent part
as follows:
{¶16} “(A) No person, while under the influence of sudden passion or in a
sudden fit of rage, either of which is brought on by serious provocation occasioned by
the victim that is reasonably sufficient to incite the person into using deadly force, shall
knowingly:
{¶17} “(1) Cause serious physical harm to another or to another's unborn;
{¶18} “(2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance, as defined in section
2923.11 of the Revised Code.”
Self-Defense
{¶19} Appellant first maintains that the manifest evidence at trial established that
he lawfully engaged in self-defense during the events of November 22, 2010. To
establish the legal defense of self-defense, the following elements must be shown: (1)
Stark County, Case No. 2011 CA 00175 6
The defendant was not at fault in creating the situation giving rise to the affray; (2) the
defendant has a bona fide belief that he was in imminent danger of death or great
bodily harm and that his only means of escape from such danger was in the use of
such force; and (3) the defendant must not have violated any duty to retreat or avoid
the danger. State v. Jones, Stark App.Nos.2007–CA–00041, 2007–CA–00077, 2008–
Ohio–1068, ¶ 32, citing State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755,
paragraph two of the syllabus. If the defendant fails to prove any one of these elements
by a preponderance of the evidence, then the defendant has failed to demonstrate that
he acted in self-defense. State v. Cassano (1996), 96 Ohio St.3d 94, 107.
{¶20} Upon review, we find the jurors could properly conclude that the evidence
did not support, by a preponderance of the evidence, that appellant had no alternative
means of escape. Appellant could have returned to his house and contacted police;
instead, he escalated the situation by walking to his truck and grabbing a tire iron to
use as a weapon. Although appellant places a great deal of emphasis on the facts that
Linder is 6’3” – 245 lbs., while appellant is 5’8” – 190 lbs. (see Tr. at 123, 192), the
testimony reveals that appellant got up after being tackled and struck Linder with the
metal weapon while Linder was trying to get on his feet. The jurors, as the firsthand
triers of fact, were patently in the best position to gauge the truth. Upon review, we find
the jury did not clearly lose its way and create a manifest miscarriage of justice
requiring that appellant's conviction be reversed and a new trial ordered.
Castle Doctrine
{¶21} Appellant secondly proposes that the evidence at trial established that he
lawfully engaged in self-defense under the Castle Doctrine pursuant to S.B. 184. The
Stark County, Case No. 2011 CA 00175 7
Castle Doctrine is presently codified in part under R.C. 2901.05(B), which states in
pertinent part as follows:
{¶22} “(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.
{¶23} “ * * *.
{¶24} “(B)(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.”
{¶25} In State v. Johnson, Cuyahoga App.No. 92310, 2010–Ohio–145, the court
summarized as follows: “Under the Castle Doctrine, a person is presumed to have
acted in self-defense when attempting to expel or expelling another from their home
who is unlawfully present. Further, under the Castle Doctrine, a person attempting to
expel or expelling another is allowed to use deadly force or force great enough to
cause serious bodily harm.” Id. at ¶ 18. There is also no duty to retreat when inside
one's home. Id.
{¶26} In the case sub judice, the altercation in question did not take place inside
appellant’s home, nor did it involve appellant attempting to expel Linder from his home.
Furthermore, although appellant’s truck was near the scene and supplied the tire iron
used in the assault, appellant was not seeking to defend himself against someone
entering into said vehicle. Upon review, we hold the Castle Doctrine would not have
Stark County, Case No. 2011 CA 00175 8
applied under the facts and circumstances presented to the jury in the case sub judice,
as appellant was not inside of or trying to expel an unlawful intruder from his residence
or occupied vehicle when the assault actions took place.
{¶27} Appellant's First Assignment of Error is therefore overruled.
II.
{¶28} In his Second Assignment of Error, appellant argues that the trial court
erred in declining to give the jury an instruction concerning the issues of
preponderance of the evidence and duty to retreat and in failing to include a self-
defense finding on the verdict form, and that trial counsel was ineffective for failing to
request same. We disagree on all counts.
Standards of Review
{¶29} Appellant herein concedes his defense counsel did not object to the
pertinent jury instructions regarding self-defense or to the verdict forms. However,
under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” In State v.
Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452, the Ohio Supreme Court
discussed the application of the plain error doctrine in the context of an allegedly
erroneous jury instruction. The Court stated: “ * * * [A]n erroneous jury instruction ‘does
not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the
outcome of the trial clearly would have been otherwise.’ State v. Long (1978), 53 Ohio
St.2d 91, 97, 372 N.E.2d 804. Additionally, the plain error rule is to be applied with
utmost caution and invoked only under exceptional circumstances, in order to prevent
a manifest miscarriage of justice.” Id. at 227, 372 N.E.2d 804. Finally, “a single jury
Stark County, Case No. 2011 CA 00175 9
instruction should not be judged in isolation but, instead, must be considered in the
context of the overall charge.” State v. Schlee, Lake App.No. 2004-L-070, 2005-Ohio-
5117, ¶ 32 (additional citations omitted).
{¶30} In regard to ineffective assistance issues, our standard of review is set
forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim
for ineffective assistance of counsel. First, we must determine whether counsel's
assistance was ineffective; whether counsel's performance fell below an objective
standard of reasonable representation and was violative of any of his essential duties
to the client. If we find ineffective assistance of counsel, we must then determine
whether or not the defense was actually prejudiced by counsel's ineffectiveness such
that the reliability of the outcome of the trial is suspect. This requires a showing that
there is a reasonable probability that but for counsel's unprofessional error, the
outcome of the trial would have been different. Id. Trial counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. Generally,
“[s]peculation is insufficient to demonstrate the required prejudice needed to succeed
on a claim for ineffective assistance of counsel.” State v. Moon, Cuyahoga App.No.
93673, 2010–Ohio–4483, ¶ 9, citing State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–
3426, 892 N.E.2d 864 (additional citations omitted). Furthermore, a reviewing court
“need not determine whether counsel's performance was deficient before examining
Stark County, Case No. 2011 CA 00175 10
the prejudice suffered by the defendant as a result of the alleged deficiencies.” Bradley
at 143, 538 N.E.2d 373, quoting Strickland at 697.
Jury Instructions – Preponderance of the Evidence
{¶31} Appellant first challenges the trial court instructions as to “preponderance
of the evidence” for purposes of appellant’s defense of self-defense. Appellant directs
us to the Ohio Jury Instructions, which state in pertinent part:
{¶32} “ *** Preponderance of the evidence is the greater weight of the evidence;
that is, evidence that you believe because it outweighs or overbalances in your minds
the evidence opposed to it. *** A preponderance means evidence that is more
probable, more persuasive, or of greater probative value. It is the quality of the
evidence that must be weighed. Quality may or may not be identical with (quantity) (the
greater number of witnesses). *** In determining whether or not an (issue) (affirmative
defense) has been proved by a preponderance of the evidence, you should consider all
the evidence bearing upon that (issue) (affirmative defense) regardless of who
produced it. *** If the weight of the evidence is equally balanced or if you are unable to
determine which side of an (issue) (affirmative defense) has the preponderance, then
the defendant has not established such (issue) (affirmative defense). ***.”
{¶33} 2 OJI-CR 417.29
{¶34} In the case sub judice, the trial court instructed the jury as follows in
pertinent part:
{¶35} “The Defendant claims to have acted in self-defense. To establish that he
was justified in using force not likely to cause death or great bodily harm, the
Defendant must prove by the greater weight of the evidence that he was not at fault in
Stark County, Case No. 2011 CA 00175 11
creating the situation giving rise to the altercation and he 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 retreat or escape
from such danger was by the use of deadly force and he had not violated any duty of
retreat or withdrawal to avoid the danger.”
{¶36} Tr. at 264.
{¶37} In State v. Riggs, Licking App.No. 2010 CA 20, 2010-Ohio-5697, we
recognized that strict compliance with the Ohio Jury Instructions is not mandatory;
instead the instructions are “recommended instructions” to assist judges in charging
the jury. Thus, deviation from the model instructions does not necessarily constitute
error by the trial court. Id. at ¶ 53 (additional citations omitted).
{¶38} Upon review, we find the trial court sufficiently equipped the jury with a
“preponderance of the evidence” legal standard for purposes of appellant’s assertion of
self-defense, and we find no plain error or ineffective assistance of trial counsel
regarding this issue.
Jury Instructions – Duty to Retreat
{¶39} Appellant next focuses on the trial court’s failure to instruct the jury on the
definitional parameters of “duty to retreat,” particularly the failure to emphasize that one
does not have a duty to retreat from one’s home, sometimes referred to as the
Peacock Rule.2
{¶40} Appellant’s argument herein presumes that the Peacock Rule extends to
the front yard or sidewalk area of a defendant’s home. However, the case of State v.
2
See State v. Peacock (1883), 40 Ohio St. 333, 334.
Stark County, Case No. 2011 CA 00175 12
Morgan, Shelby App.No. 17-97-22, 1998 WL 323480, is instructive on this issue. The
Third District Court, addressing the issue of self-defense in a fatal shooting case,
stated in pertinent part: “The facts in this case do not implicate [the Peacock] rule since
Appellant was not ‘in his home’ at the time he used deadly force to slay [the victim] nor
was Appellant's ‘home itself attacked.’ *** In this case, Appellant proceeded outside his
house, down the porch steps, and across his front yard before shooting his victim. By
all witness accounts, [the victim] was shot while standing on or immediately about the
area of the public sidewalk outside Appellant's home. These facts demonstrate that
Appellant was not ‘in his home’ nor was his home under attack when he shot [the
victim]. Consequently, an instruction regarding the “no duty to retreat” rule was not
warranted. We find no error in trial counsel's failure to object to the jury instructions
provided in this case.” Id. See, also, State v. McDowell, Franklin App.No. 10-AP-509,
2011-Ohio-6815, ¶ 39, (finding no applicability of the “no duty to retreat” rule where the
evidence demonstrated a shooting had occurred, at best, in the defendant’s front yard).
{¶41} Accordingly, we find no plain error or ineffective assistance of trial counsel
under the facts and circumstances of the case sub judice for want of further
instructions to the jury on the issue of appellant’s duty or non-duty to retreat.
Verdict Forms
{¶42} Appellant lastly contends that the jury should have been provided with a
separate verdict form for the defense of self-defense, and that defense counsel was
ineffective in not requesting such a form. Appellant provides no authority in support of
his argument. However, in State v. Reeds, Lake App.No. 2007-L-120, 2008-Ohio-1781,
¶ 62, the Eleventh District Court of Appeals, while conceding “it may be argued that
Stark County, Case No. 2011 CA 00175 13
inclusion of a separate finding relating to self-defense would ensure clarity”,
nevertheless declined to find plain error where such a verdict form was not given to the
jury. We herein apply the rationale of Reeds and find no plain error or ineffective
assistance of trial counsel in this regard.
{¶43} Appellant's Second Assignment of Error is overruled.
III.
{¶44} In his Third Assignment of Error, appellant contends the trial court erred in
declining to give the jury an instruction on the lesser offense of misdemeanor assault,
and that trial counsel was ineffective for failing to adequately request or renew a
request for same. We disagree.
{¶45} A party is not entitled to an instruction on a lesser included offense unless
the evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense. See State v. Anderson,
Butler App. No. CA 2005-06-156, 2006-Ohio-2714, ¶ 10. In making this determination,
the court must view the evidence in the light most favorable to a defendant. Id. But an
instruction on a lesser included offense is not warranted every time “some evidence” is
presented to support the inferior offense. See State v. Shane (1992), 63 Ohio St.3d
630, 590 N.E.2d 272. There must be “sufficient evidence” to “allow a jury to reasonably
reject the greater offense and find the defendant guilty on a lesser included (or inferior
degree) offense.” (Emphasis sic.) Id. at 632-633, 590 N.E.2d 272.
{¶46} The key factor of misdemeanor assault under R.C. 2903.13(A) is the
element of causing “physical harm” as opposed to “serious physical harm.” R.C.
2901.01(A)(5) defines “serious physical harm to persons” to mean any of the following:
Stark County, Case No. 2011 CA 00175 14
{¶47} “(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
{¶48} “(b) Any physical harm that carries a substantial risk of death;
{¶49} “(c) Any physical harm that involves some permanent incapacity, whether
partial or total, or that involves some temporary, substantial incapacity;
{¶50} “(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
{¶51} “(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or intractable
pain.”
{¶52} In the case sub judice, the State presented Linder's testimony at trial in
addition to his hospital records and photographs of his injuries. Linder was hospitalized
for more than a week and will likely suffer permanent incapacity and disfigurement. We
find the jurors would have properly found that Linder suffered “serious physical harm”
rather than simply “physical harm” and that appellant striking Linder's face with a tire
iron was the cause of that serious physical harm.
{¶53} We therefore find no error in the trial court’s refusal to give a misdemeanor
assault instruction and we further find no ineffective assistance of trial counsel for
failing to renew the requested instruction after the final presentation of evidence.
Stark County, Case No. 2011 CA 00175 15
{¶54} Appellant's Third Assignment of Error is overruled.
{¶55} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., concurs.
Farmer, J., dissents.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 604
Stark County, Case No. 2011 CA 00175 16
Farmer, J., dissents
{¶56} I respectfully dissent from the majority's opinion in Assignment of Error II
relative to the trial court's failure to charge the jury on the definition of preponderance
of the evidence as it relates to the defense of self-defense.
{¶57} When reading the jury instructions as a whole, the emphasis was on the
heightened standard of "beyond a reasonable doubt." T. at 260-265. The instruction
on self-defense only mentioned the "greater weight of the evidence" once and was
devoid of any explanation as to the lessened burden vis-á-vis reasonable doubt. T. at
264.
{¶58} Even in the closing arguments to the jury, there was no mention of the
differences between "beyond a reasonable doubt" and "preponderance of the
evidence."
{¶59} Given the fact that the evidence was disputed as to appellant's reasoning
for hitting the victim, I would find the failure to charge the jury on "preponderance of the
evidence" rises to the level of plain error.
________________________________
HON. SHEILA G. FARMER
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KIM BLACK :
:
Defendant-Appellant : Case No. 2011 CA 00175
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
___________________________________
___________________________________
JUDGES