[Cite as State v. Taylor, 2020-Ohio-6854.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28668
:
v. : Trial Court Case No. 2019-CR-2725
:
ANTWANETTE J. TAYLOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of December, 2020.
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MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
KATHRYN L. BOWLING, Atty. Reg. No. 0084442, 120 West Second Street, Suite 1715,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Antwanette J. Taylor appeals from her conviction for improperly handling
firearms in a motor vehicle under R.C. 2923.16(A). She contends that the trial court erred
by failing to instruct the jury that it could consider self-defense as a defense to this charge.
We agree, so we reverse.
I. Factual and Procedural Background
{¶ 2} This case arises from an incident involving Taylor, Timothy Beasley, and
Andrea Hogan (Beasley’s girlfriend and Taylor’s friend). While Taylor was sitting in her
car with Hogan, Taylor shot Beasley, who was standing near the driver’s side door,
seriously injuring him. From the trial testimony of these three, the following basic narrative
emerged.
{¶ 3} Early in the evening of August 16, 2019, Taylor received a phone call from
Hogan telling her that Beasley had beaten her, again, and she had jumped out of her car
that he was driving. Hogan asked Taylor to pick her up and take her home. Taylor picked
Hogan up and drove to Hogan’s house, where Beasley also lived. Beasley was there. He
approached Taylor’s car, and he and Hogan started arguing. When Beasley walked off
down the street, possibly to where he had secretly parked Hogan’s car, Hogan told Taylor
to follow him because she had left her phone and purse in her car. Taylor slowly followed
the walking Beasley with her car while Hogan hung out the window arguing with him.
{¶ 4} Beasley started throwing cement blocks or rocks at the car. Taylor stopped,
opened her door (because the window didn’t work), and told him to stop it. Beasley then
stepped toward the car, and Taylor said she thought she saw him pull out a gun. Taylor,
a concealed-carry (CCW) licensee, was wearing a handgun in a holster on her hip. She
drew the gun and shot Beasley twice. Hogan jumped out of the car and went to aid
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Beasley. Taylor called 911 and told the dispatcher what had happened. Hogan and
Beasley denied he had a gun, and a gun was never found.
{¶ 5} Taylor admitted that she shot Beasley. But she said that she did so in self-
defense, insisting that Beasley had a gun. Taylor also testified at the trial that, two years
before, Beasley had pulled a gun on her when she picked up Hogan: “Me and Andrea
was going to go look for a job and I came to get her. And he said, if you let her in this car,
I’m gonna shoot this car up.” (Tr. 579.)
{¶ 6} As a result of the August 16, 2019 incident, Taylor was charged with
discharge of a firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3);
felonious assault causing serious physical harm, in violation of R.C. 2903.11(A)(1);
felonious assault with a deadly weapon causing physical harm, in violation of R.C.
2903.11(A)(2); and improperly handling firearms in a motor vehicle, in violation of R.C.
2923.16(A). All but the improper-handling charge included a firearm specification.
{¶ 7} A week-long trial was held in November 2019. The day before the trial began,
Taylor filed a request that the court instruct the jury on the law of self-defense and
submitted proposed instructions. After the close of all the evidence, the trial court ruled,
without explanation, that it would instruct the jury on self-defense for all the offenses
except improper handling. That is what the court did, telling the jury that “[s]elf-defense is
not a defense to [the] count for improperly handling a firearm in a motor vehicle.” (Tr.
767.) The jury found Taylor not guilty of all but the improper-handling offense. For that
offense, she was sentenced to up to five years of community control.
{¶ 8} Taylor appeals.
II. Analysis
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{¶ 9} The sole assignment of error alleges:
The trial court erred in failing to instruct the jury that self defense applies to
improper handling under R.C. 2923.16(A).
{¶ 10} “[A] trial court must 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. We review a trial court’s refusal to submit a requested jury instruction
for “an abuse of discretion under the facts and circumstances of the case.” State v.
Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).
Self-defense as a defense to the improper-handling charge
{¶ 11} We first consider whether Taylor could raise self-defense against the charge
of improperly handling firearms in a motor vehicle under R.C. 2923.16(A), which prohibits
a person from “discharg[ing] a firearm while in or on a motor vehicle.”
{¶ 12} R.C. 2901.05(B)(1) states categorically that “[a] person is allowed to act in
self-defense[.]” It goes on to say that self-defense can be an affirmative defense “at the
trial of a person who is accused of an offense that involved the person’s use of force
against another.” Here, Taylor was charged with the improper-handling offense because
while in her car she fired her handgun at Beasley. Plainly, Taylor was accused of an
offense that “involved” her use of force against another. Consequently, she could raise
self-defense against the charge. In our view, this makes sense, because if an attacker is
threatening bodily harm or death to a person in a vehicle, and the person is otherwise
authorized to have the weapon in the vehicle, that person should be entitled to use deadly
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force in self-defense, and that person should not have to jump out of the vehicle before
protecting herself.
{¶ 13} The State argues that the improper-handling charge did not involve the use
of force, because the offense has no force element. But the terminology “accused of an
offense that involved the person’s use of force” does not mean accused of an offense an
element of which is the use of force. The use of the past tense “involved” and the use of
the definite article “the” suggest that the statute refers to the particular wrongful act
supporting the charge in the case. If the statute used the present tense and used the
indefinite article, the State might have a point.
{¶ 14} Furthermore, we contrast an improper-handling charge under division (A)
of R.C. 2923.16 with a charge under division (B) of the statute. Division (B) prohibits
having a loaded gun in a vehicle that is accessible to the driver or a passenger. But
division (B) does not apply to a person, like Taylor, who is carrying a valid concealed
handgun license. R.C. 2923.16(F)(5). Unlike the act of discharging a firearm while in a
vehicle, the wrongful act in division (A), it is hard to conceive of a set of facts in which
simply possessing a loaded gun in a vehicle would involve the use of force, as prohibited
in division (B). In this case, if Taylor instead had been charged under division (B), simply
having the loaded weapon in the vehicle (without a handgun license), we would likely
agree that self-defense could not be raised.
{¶ 15} We also find it inconsistent for the trial court to give the self-defense
instruction for the charge of discharge of a firearm on or near prohibited premises under
R.C. 2923.162(A)(3), which prohibits “[d]ischarg[ing] a firearm upon or over a public road
or highway,” but not to give the instruction for the charge under R.C. 2923.16(A) of
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improper handling. Both prohibit discharging a firearm—the only difference is that one
prohibits doing so “upon or over a public road or highway” and the other prohibits doing
so “while in or on a motor vehicle.” We do not see why self-defense can be raised against
one charge but not the other.
Evidence of self-defense against the improper-handling charge
{¶ 16} Next, we consider whether Taylor raised self-defense successfully, that is,
whether she introduced sufficient evidence that she acted in self-defense.
{¶ 17} “A trial court need not instruct the jury where there is insufficient evidence
to support an issue. In reviewing a record to ascertain whether sufficient evidence exists
to support the giving of an instruction, an appellate court should determine whether the
record contains evidence from which reasonable minds might reach the conclusion
sought by the instruction.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 124, 679 N.E.2d
1099 (1997). See also State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978),
paragraph one of the syllabus (applying this standard to whether a defendant has
successfully raised an affirmative defense under R.C. 2901.05).
{¶ 18} R.C. 2901.05(B)(1) requires that there be “evidence presented that tends to
support that the accused person used the force in self-defense.” “To establish self-
defense, a defendant must introduce evidence showing that: (1) [s]he was not at fault in
creating the violent situation; (2) [s]he had a bona fide belief that [s]he was in imminent
danger of bodily harm; and (3) [s]he did not violate any duty to retreat or avoid the danger.”
State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.), citing State v. Thomas,
77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997), citing State v. Williford, 49 Ohio St.3d
247, 249, 551 N.E.2d 1279 (1990). (Other citation omitted.)
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{¶ 19} Given that the trial court instructed the jury on self-defense for the
discharge-of-a-firearm and felonious-assault offenses, the court must have concluded
that Taylor presented sufficient evidence of self-defense as to those offenses. That is, the
court necessarily determined that there was sufficient evidence that Taylor was not at
fault in creating the violent situation, had a bona fide belief that she was in imminent
danger of bodily harm, and did not violate any duty to retreat or avoid the danger. All the
charged offenses were based on the same act: Taylor shooting Beasley from inside her
car. If the evidence were sufficient to show that Taylor acted in self-defense when she
committed the other offenses—especially the discharge-of-a-firearm offense—the
evidence also must have been sufficient to show that Taylor acted in self-defense when
she committed the improper-handling offense.
{¶ 20} The State argues that any error was harmless because the evidence shows
overwhelmingly that Taylor did not act in self-defense. As an initial matter, we point out
that the State did not cross-appeal the trial court’s giving of the self-defense instruction
on the other three offenses. The jury found Taylor not guilty on the charges for which it
was given the self-defense instruction. We cannot say that if the jury also had been given
the self-defense instruction as to the improper-handling offense, it would still have found
her guilty on that charge.
Preservation of this issue for appeal
{¶ 21} Lastly, we consider whether, as the State argues, Taylor waived her
objection to the trial court’s decision not to give the self-defense instruction for the
improper-handling offense.
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{¶ 22} The Ohio Supreme Court has said that “[a] party does not waive his
objections to the court’s charge by failing to formally object thereto (1) where the record
affirmatively shows that a trial court has been fully apprised of the correct law governing
a material issue in dispute, and (2) the requesting party has been unsuccessful in
obtaining the inclusion of that law in the trial court’s charge to the jury.” Wolons, 44 Ohio
St.3d 64, 67, 541 N.E.2d 443, paragraph one of the syllabus (construing Crim.R. 30[A]).
{¶ 23} We relied on the above-quoted paragraph in State v. Fine, 2d Dist. Miami
No. 09-CA-32, 2010-Ohio-2637. In that case, the trial court had misstated the elements
of a section of a local property maintenance code in its instructions to the jury and the
defendant had not objected. On appeal, we found that the defendant had submitted a
proposed jury instruction before trial that correctly stated the law. We concluded that
“Defendant notified the trial court of the correct law, but was unsuccessful in obtaining the
inclusion of the correct law in the trial court’s instruction to the jury. Defendant therefore
preserved the right to assign as error on appeal the trial court’s incorrect jury instruction.”
Id. at ¶ 21.
{¶ 24} The Third District, citing Fine, reached the same conclusion in State v. Nye,
2013-Ohio-3783, 997 N.E.2d 552 (3d Dist.). The trial court had failed to properly instruct
the jury on self-defense, failing to give an instruction on the rebuttable presumption of
self-defense. The defendant had not objected. On appeal, the appellate court found that
the defendant had submitted proposed jury instructions that correctly stated the law,
including the rebuttable presumption. The court concluded that, by doing so, the
defendant had “preserved the issue for appeal.” Id. at ¶ 26.
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{¶ 25} Here, Taylor requested that the trial court give a self-defense instruction for
all the charged offenses and submitted proposed instructions. The trial court ruled that it
would give a self-defense instruction for all the offenses except improper handling. Taylor
did not object. But Taylor’s proposed instruction stated the law correctly in that it did not
exclude self-defense as a defense to the improper-handling charge. Accordingly, she
correctly notified the trial court that self-defense is a defense to the charge of improper
handling, but the trial court failed to so instruct the jury. We conclude that Taylor preserved
the issue for appeal.
III. Conclusion
{¶ 26} The trial court prejudicially erred by failing to instruct the jury that self-
defense is a defense to the charge of improperly handling firearms in a motor vehicle
under R.C. 2923.16(A). The sole assignment of error is sustained. The trial court’s
judgment is reversed, and the case is remanded for further proceedings consistent with
this opinion.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Kathryn L. Bowling
Hon. Timothy N. O’Connell