State v. Davis

[Cite as State v. Davis, 2021-Ohio-2311.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109890
v. :

MICHAEL DAVIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 8, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-619133-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christine M. Vacha, for appellee.

Jerome Emoff, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Michael Davis, appeals his convictions

following a jury trial. Finding no merit to the appeal, we affirm.

In 2017, Davis was named in an eight-count indictment charging him

with attempted murder, aggravated robbery, discharge of a firearm, having weapons
while under disability, and two counts each of felonious assault and aggravated

menacing. The charges stemmed from an altercation that occurred on East 137th

Street and Kinsman Road in Cleveland, between Davis and Dion Watson

(“Watson”), Ketara Jewell (“Jewell”), and Sharon Maddox (“Maddox”), where

according to the state, Davis exited a vehicle with a gun drawn, and ultimately

engaged in a physical confrontation with Watson, causing him serious injury. It was

alleged that Davis discharged the firearm during the incident.

A jury trial commenced in July 2018. However, after the jury was

empaneled and the first witness testified, the trial court sua sponte declared a

mistrial out of manifest necessity based on Davis’s repeated protestations that he

wanted to proceed pro se at trial.

In January 2020, a second jury trial commenced where Davis

represented himself. The jury found Davis not guilty of attempted murder and one

count of felonious assault (use of a deadly weapon), but guilty of felonious assault

(causing serious physical harm), aggravated robbery, discharge of a firearm, having

weapons while under disability, and both counts of aggravated menacing. The trial

court sentenced Davis to 24 years in prison.

Davis now appeals, raising three assignments of error. Because Davis

does not challenge on appeal the sufficiency or manifest weight of the evidence, this

court will only set forth the facts as they pertain to each assignment of error.
I. Mistrial

In his first assignment of error, Davis contends that the trial court

abused its discretion in sua sponte declaring a mistrial.

Prior to the start of the July 16, 2018 jury trial, Davis expressed

reservations about whether his trial attorneys had spent sufficient time with him to

prepare for trial. During one of the exchanges with the trial court, Davis indicated

that he wished to represent himself. (Tr. 22-24.) After a lengthy discussion between

the court, Davis, and his attorneys, the court assured Davis that he was represented

by competent and experienced attorneys who were prepared to go forward with trial.

After the jury was empaneled and Watson testified, Davis addressed

the court requesting to represent himself. (Tr. 415.) According to Davis, his attorney

did not ask Watson the questions that he wanted her to ask and they had a conflict

of interest. (Tr. 415-420.) The court engaged in a long colloquy with Davis, at first

denying his request to proceed pro se because they were “thick into this right now.”

(Tr. 420.) Additional discussion occurred regarding the amount of time Davis’s

attorneys spent with him preparing for trial. (Tr. 422-428.) After further discussion

regarding the interplay between what Davis wished his attorney had asked during

examination and what was asked, and the rules of evidence, the court took a recess

and spoke with counsel off the record. (Tr. 428-430.)

The trial court then again discussed with Davis his concerns regarding

his attorneys’ representation. Davis assured the court that his mental health
diagnosis was not impacting his decision-making, and that he was fully compliant

with his medications. (Tr. 431-436.) Thereafter, the court stated:

Okay. So, with that being said, I think that at this point, the Court has
no choice but to declare a mistrial in this case for the manifest necessity.

The basis, of course, is that the defendant has exerted very clearly the
idea that he wishes to represent himself in this matter. And that,
frankly, there is a significant amount of discovery which has been
reviewed by counsel only and would require the defendant certainly to,
at the very least, review that information before proceeding.

Additionally, while the Court has not gone through the entire colloquy
with the defendant on self[-]representation, it’s very clear that he is
competent and of clear mind today and very affirmatively expressing
his position. However, I do still have to go over that colloquy with you
before we begin —

(Tr. 437.)

The trial court then noted that that the state “strenuously object[ed]

to the court granting a mistrial.” (Tr. 438.) The court expressed its justification:

And certainly I have taken into consideration the State’s perspective,
but in the interests of justice, the Court has to make decisions which
are in the interests of justice.

Therefore, strenuous objection is noted and I should also note that this
is the second time in ten years that I’ve declared a mistrial, so it’s not
something that the Court either takes lightly or takes an aspersion to.

I certainly have reviewed a number of cases along with the case law that
is applicable to the decision that I have just made.

(Tr. 438.) The court again noted, in relevant part,

So, this is a mistrial necessitated by the defendant just so that the
record is clear.

And once again, I am obviously significantly concerned about the
timing of all of this and recognize that it is suspect from that
perspective.
(Tr. 441.) Davis did not object at any time regarding the trial court’s decision to

declare a mistrial. On July 18, 2018, the trial court formally issued a journal entry

ordering a mistrial, while noting the state’s objection.

On October 17, 2018, Davis appeared in court with newly appointed

counsel, who advised the court that Davis still wished to represent himself. After a

thorough colloquy, Davis unequivocally stated “[i]f I’m competent enough to stand

trial, I should be competent enough to represent myself.” (Tr. 456.) Out of concern,

the trial court ordered Davis to undergo a competency evaluation at Northcoast

Behavioral Health before allowing him to proceed without counsel. In November

2018, the court received a report from Northcoast indicating that Davis was

uncooperative with the evaluation. As a result, the court ordered Davis to undergo

further evaluation at Northcoast regarding competency.

In December 2018, the court received a report from Northcoast

opining that Davis was competent to stand trial and competent to waive his right to

counsel. After the parties stipulated to the report, Davis once again unequivocally

stated that he wished to represent himself. (Tr. 465.)

In February 2019, the trial court engaged in an extensive discussion

with Davis about his desire to represent himself. Following this discussion, the trial

court engaged in the requisite Crim.R 44 advisements on waiving his right to counsel

and proceeding pro se, and Davis executed the appropriate waiver. (Tr. 508, 541-

542, 554, 571.)
 In July 2019, the trial court considered Davis’s multiple motions to

dismiss — none of which asked the court to dismiss the indictment based on double

jeopardy grounds. During the motion hearing, the trial court further explained her

justification for declaring a mistrial:

I’m going to note for the record that we were, in fact, engaged in trial.
We had selected a jury. In fact, we had gone through several days of
jury selection and begun opening statements and the presentation of
witnesses wherein Mr. Davis at the time seemed to feel uncomfortable
and unhappy with the way that the proceedings were going.

He appeared to the Court to be angry with [his attorneys], and at a time
told the Court that he absolutely, unequivocally fired both of his
counsel while we were in the middle of trial and was not going to accept
them as his counsel anymore. And he made those motions partially in
front of the jurors, so it was a rather tenuous situation.

I did grant the defendant’s — I did grant a motion for a mistrial at that
point against the objection ─ over the objection of the State of Ohio. I
should note that in 11 years as a Common Pleas Court Judge, I have
only had two mistrials. This would be the second.

(Tr. 579-580.)

The second jury trial began on January 27, 2020, without objection

or any declaration that Davis’s constitutional rights against double jeopardy were

violated because of the retrial. Although Davis proceeded pro se, he had standby

counsel assisting him with courtroom procedure.

On appeal, Davis contends that the trial court abused its discretion

when it assumed manifest necessity and declared a mistrial, thus violating his

constitutional right against double jeopardy. He contends that neither he nor the

state requested a mistrial and that his request to proceed pro se was untimely and,
thus, should not have been a basis for granting a mistrial. Davis’s arguments are

without merit.

The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution, made applicable to the states through the Fourteenth

Amendment, protects a criminal defendant from multiple prosecutions for the same

offense. State v. Truhlar, 8th Dist. Cuyahoga No. 103312, 2016-Ohio-5338, ¶ 33,

citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

The Double Jeopardy Clause does not, however, bar re-prosecution in every case.

Truhlar at ¶ 34. Generally, retrial is permitted whenever a mistrial is declared at the

request of or with the consent of the defendant, or the trial court sua sponte declares

a mistrial, unless the request is precipitated by prosecutorial misconduct intended

to provoke a defendant into seeking a mistrial. Id., citing N. Olmsted v. Himes, 8th

Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37; State v. Bogan,

8th Dist. Cuyahoga No. 106183, 2018-Ohio-4211, ¶ 22; see also State v. Truhlar, 8th

Dist. Cuyahoga No. 105835, 2017-Ohio-9018, ¶ 7.

In this case, there is no allegation of prosecutorial misconduct. And

according to Davis, he did not request or consent to a mistrial and thus the court

should not have declared a mistrial. Specifically, he directs this court to a single

sentence wherein he told the court that his desire to represent himself was not “to

postpone this or none of this because I believe the facts of this case will set me free.”

(Tr. 427.) Despite this isolated and out-of-context statement, we find that the record

demonstrates that Davis’s request to proceed pro se and his actions during the first
trial caused the mistrial. Moreover, Davis neither filed a motion to dismiss the

charges on double jeopardy grounds nor asserted a violation of his Fifth Amendment

protection against double jeopardy in the trial court. Accordingly, he has waived all

but plain error and, arguably, he invited any error.

Pursuant to Crim.R. 52(B), plain errors or defects that affect

substantial rights may be grounds for reversal even though they were not brought to

the attention of the trial court. To constitute plain error, there must be (1) an error,

i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that affected

substantial rights, i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio

St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Notice of plain error under Crim.R.

52(B) is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,

372 N.E.2d 804 (1978), paragraph three of the syllabus.

Assuming that Davis did not consent to the mistrial, double jeopardy

will not bar a retrial if (1) there was a manifest necessity or high degree of necessity

for ordering a mistrial; or (2) the ends of public justice would otherwise be defeated.

State v. Widner, 68 Ohio St.2d 188, 189, 429 N.E.2d 1065 (1981), citing Arizona v.

Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). “‘Manifest

necessity’ means a ‘high degree’ of necessity must exist before a mistrial may

properly be declared. However, it does not require a showing that a mistrial was

‘absolutely necessary’ or that there was no other alternative but to declare a
mistrial.” State v. Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 21 (8th Dist.), citing

Washington at 511.

There is no “mechanical formula” for determining what constitutes a
“manifest necessity” for a mistrial: “[T]he manifest-necessity standard
‘abjures the application of any mechanical formula by which to judge
the propriety of declaring a mistrial in the varying and often unique
situations arising during the course of a criminal trial.’”

Marshall at ¶ 22, quoting State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236,

973 N.E.2d 243, ¶ 27, quoting Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066,

35 L.Ed.2d 425 (1973).

What constitutes a manifest necessity for a mistrial is, therefore, left

to the discretion of the trial court to be decided on a case-by-case basis, considering

all the relevant circumstances. Marshall at id. This approach is “in recognition of

the fact that the trial judge is in the best position to determine whether the situation

in his [or her] courtroom warrants the declaration of a mistrial,” State v. Glover, 35

Ohio St.3d 18, 19, 517 N.E.2d 900 (1988), but should be used with the “‘greatest

caution, under urgent circumstances, and for very plain and obvious causes.’”

Gunnell at ¶ 26, quoting U.S. v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165 (1824).

In determining whether a mistrial is necessary, the trial court should

(1) allow both parties to state their positions on the issue, (2) consider their

competing interests, and (3) explore reasonable alternatives, if any, before declaring

a mistrial. Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, at

¶ 44. “A trial court must act ‘rationally, responsibly, and deliberately’ in determining

whether to declare a mistrial.” Marshall at ¶ 25, quoting Gunnell at ¶ 33.
 In this case, we find no abuse of discretion, and thus no plain error.

The record reflects that prior to trial, Davis was concerned about proceeding with

his attorneys and thus requested to represent himself. After trial commenced, Davis

again expressed dissatisfaction with his attorneys, contending that they did not

spend enough time with him preparing for trial, and did not ask the questions he

wanted them to ask, and he felt that he could represent himself more effectively.

The court later noted that some of these protestations and disruptions occurred in

the presence of the jury. See tr. 579-580; 1508 (following Davis’s testimony during

the second trial, the court noted that Davis “fired [his attorney] in the middle of trial,

claiming that [he] found her to be incompetent, and [he] did not like her

representation of [him] at all. And [he] made it clear in front of the last jury that

that is how [he] felt”).

Following a lengthy colloquy with Davis and counsel — both on and

off the record — the trial court declared a mistrial, finding it to be a manifest

necessity on the basis that Davis unequivocally wished to represent himself.

Although the state objected and the trial court did not consider any alternatives to a

mistrial on the record, this is not a case in which the parties were afforded no

opportunity to state their respective positions or where an adequate alternative

remedy was readily apparent, other than to deny Davis’s request for self-

representation and require him to proceed with current counsel, which of course the

court could have done. However, based on the circumstances of the case and Davis’s

outward attitude toward his attorneys, we find no abuse of discretion by the trial
court. The record reflects sufficient justification to conclude that the court acted

rationally, responsibly, and deliberately in its decision to grant Davis’s motion to

proceed pro se and ultimately declare a mistrial. We further find that the trial court’s

actions did not amount to such a manifest miscarriage of justice for this court to

recognize plain error.

Moreover, Davis arguably invited the error upon which he now relies

on appeal. Under the invited error doctrine, a party is not entitled to take advantage

of an alleged error that the party induced or invited the court to make. State ex rel.

Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950 (1994). “[A] litigant

cannot be permitted, either intentionally or unintentionally, to induce or mislead a

court into the commission of an error and then procure a reversal of the judgment

for an error for which he was actively responsible.” Lester v. Leuck, 142 Ohio St. 91,

93, 50 N.E.2d 145 (1943). The doctrine precludes a litigant from making “an

affirmative and apparent strategic decision at trial” and then complaining on appeal

that the result of that decision constitutes reversible error. State v. Doss, 8th Dist.

Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7, quoting United States v. Jernigan, 341

F.3d 1273 (11th Cir.2003). The invited error doctrine has been applied in the context

of motions for mistrials. See State v. Osley, 6th Dist. Lucas No. L-17-1025, 2018-

Ohio-437, ¶ 21-26 (discussing cases related to defendants’ outbursts during trial).

In this case, even if we were to find that the trial court erred in

declaring a mistrial, it is apparent that Davis’s actions and assertions were the

precipitating events that caused the mistrial; thus, it could be viewed as invited
error. The record demonstrates that Davis was unequivocal in his request to dismiss

his attorneys during trial and represent himself. The court noted that some of his

protestations occurred in the presence of the jury, which could have tainted their

perspective and led to an unfair trial. Davis cannot take advantage of the error that

he in fact induced. Accordingly, Davis’s first assignment of error is overruled.

II. Jury Instructions

In his second and third assignments of error, Davis contends that the

trial court erred in its instructions to the jury. Specially, he contends that a flight

instruction was not appropriate and that the court should have instructed the jury

on self-defense.

A. Flight Instruction

At the request of the state, the trial court gave the jury the following

instruction on flight:

Now, ladies and gentlemen of the jury, testimony has been admitted
indicating the defendant fled the scene. You are instructed that the fact
that the defendant fled the scene does not raise a presumption of guilt,
but it may tend to indicate the defendant’s consciousness of guilt. If
you find that the facts do not support that the defendant fled the scene,
or if you find that some other motive prompted the defendant's
conduct, or if you are unable to decide what the defendant's motivation
was, then you should not consider this evidence for any purpose.
However, if you find that the facts support the defendant engaged in
such conduct, and if you decide the defendant was motivated by a
consciousness of guilt, you may, but are not required to consider that
evidence in deciding whether the defendant is guilty of any of the
crimes charged. You alone will determine what weight, if any to give to
this evidence.

(Tr. 1613.)
 The giving of jury instructions is typically within the sound discretion

of the trial court, and we review it for an abuse of discretion. State v. Howard, 8th

Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, citing State v. Martens, 90 Ohio

App.3d 338, 629 N.E.2d 462 (3d Dist.1993). However, Davis failed to object to the

trial court’s decision to instruct the jury on flight and, therefore, has waived all but

plain error on appeal. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); State

v. Burns, 8th Dist. Cuyahoga No. 95465, 2011-Ohio-4230; Crim.R. 52(B); Crim.R.

30(A) (failure to object to the trial court’s jury instructions waives issue on appeal).

An improper or erroneous jury instruction does not constitute plain

error under Crim.R. 52(B) unless, but for the error, the outcome of the trial would

clearly have been different. State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452

(1983). This court has repeatedly held that “‘[a] mere departure from the scene of

the crime is not to be confused with deliberate flight from the area in which the

suspect is normally to be found.’” State v. Santiago, 8th Dist. Cuyahoga No. 95516,

2011-Ohio-3058, ¶ 30, quoting State v. Norwood, 11th Dist. Lake Nos. 96-L-089

and 96-L-090, 1997 Ohio App. LEXIS 4420 (Sept. 30, 1997).

In State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583,

¶ 48, and State v. Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638, ¶ 110,

the court held that the defendant’s conduct of leaving the scene of the crime did not

warrant a flight instruction because there was no evidence of deliberate flight in the

sense of evading police. See also State v. Wesley, 8th Dist. Cuyahoga No. 80684,

2002-Ohio-4429 (flight instruction not warranted based on insufficient evidence).
 In this case, there was no evidence of Davis’s deliberate flight in the

sense of evading police. Nevertheless, the state requested a flight instruction, and

the trial court granted the request. Despite this court’s repeated decisions on when

a flight instruction is proper and when it is not, the state continues to request the

instruction and trial courts continue to grant this request when clearly the

instruction is not appropriate and contrary to the controlling case law in the Eighth

District. The misapplication of the flight instruction is extremely troubling to this

court, and we strongly encourage that the flight instruction should only be requested

and given when the facts of the case permit.

Despite the trial court’s error, we cannot say, nor has Davis

demonstrated, that the error was prejudicial such that a manifest miscarriage of

justice has occurred. Reviewing the instruction as a whole, it allowed the jury to

reach its own conclusions on the issue of flight, including whether Davis actually fled

the scene, and Davis’s motivation for leaving the scene. Under similar

circumstances, this court has declined to find plain error. See, e.g., Jackson and

Johnson. We likewise decline to find plain error here. Davis’s second assignment

of error is overruled.

B. Self-Defense

Davis requested that the trial court instruct the jury on self-defense.

The state objected, contending that Davis’s innocence defense or alternative theory

that the firearm accidentally discharged were contrary to his claim of self-defense.
Following an extensive and thorough discussion, and a review of the relevant case

law, the trial court denied Davis’s request for a self-defense jury instruction.

When reviewing a refusal to give a requested jury instruction, an

appellate court considers whether the trial court’s refusal was an abuse of discretion

under the facts and circumstances of the case. State v. Wolons, 44 Ohio St.3d 64,

541 N.E.2d 443 (1989). Trial courts have a responsibility to give all jury instructions

that are relevant and necessary for the jury to properly weigh the evidence and

perform its duty as the factfinder. State v. Stephens, 2016-Ohio-384, 59 N.E.3d 612,

¶ 17 (8th Dist.), citing State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990),

paragraph two of the syllabus. Trial courts should ordinarily give a requested jury

instruction if it is a correct statement of law, if it is applicable to the facts of the case,

and if reasonable minds might reach the conclusion sought by the requested

instruction. State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 42 (8th Dist.),

citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240;

see also Goldfuss v. Davidson, 79 Ohio St.3d 116, 124, 679 N.E.2d 1099 (1997). In

deciding whether to give a self-defense instruction, the trial court must view the

evidence in favor of the defendant, and the question of credibility is not to be

considered. Jacinto at id.; State v. Robinson, 47 Ohio St.2d 103, 110-113, 351 N.E.2d

88 (1976).

Davis contends that his testimony was sufficient to support a

conclusion that he acted in self-defense in relation to Counts 3, 7, and 8 of the

indictment. Count 3 charged Davis with felonious assault in violation of R.C.
2903.11(A)(1), which alleged that Davis caused or attempted to cause serious

physical harm to Watson. The state claimed that Davis caused Watson actual injury,

i.e., a bite to his arm and injury to his head requiring staples. Counts 7 and 8 each

charged Davis with aggravated menacing in violation of R.C. 2903.21(A), alleging

that Davis knowingly caused Watson and Jewell to believe that he would cause them

serious physical harm. The state claimed that Watson and Jewell each feared for

their safety when Davis exited the vehicle with a gun drawn and when the fight over

the firearm ensued.

At trial, Davis testified that he exited his friend’s vehicle and walked

in the direction where his other friend was waiting, which happened to be the same

direction that Maddox was walking. Davis stated that Maddox reached into her

purse, turned around, and pointed a gun at him. He stated that out of fear, he

dropped his cell phone and cigar and placed his hands in the air. Davis testified that

he threw his keys and money on the ground, which distracted Maddox, allowing him

to grab her arm and take the gun from her. He said he placed it behind his back, but

turned around when Watson yelled out. Davis stated that Watson charged at him

and grabbed the gun. He stated that the two were tussling on the ground when the

gun discharged. According to Davis, he stopped wrestling with Watson and

attempted to diffuse the situation by stating they should just “move on.” Davis

testified that Watson then head-butted him, which caused him to become dizzy. He

said he saw Watson and one of the other females assaulting his friend, but left out

of fear because he was on parole. He denied that he threatened anyone with a gun,
fired the gun at anyone, or assaulted anyone. He claimed the gun discharged during

the tussle with Watson.

We find that the trial court did not abuse its discretion in denying

Davis’s request for a jury instruction on self-defense. A defendant claiming self-

defense “concedes he had the purpose to commit the act, but asserts that he was

justified in his actions.” State v. Talley, 8th Dist. Cuyahoga No. 87143, 2006-Ohio-

5322, ¶ 45. Self-defense “presumes intentional, willful use of force to repel force or

escape force.” State v. Champion, 109 Ohio St. 281, 286-87, 142 N.E. 141 (1924).

“Thus, when an individual testifies that they did not intend to cause harm, such

testimony prevents the individual from claiming self-defense.” State v. Hubbard,

10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 54.

In this case, Davis denied that he created the situation or committed

any offense. Accordingly, a claim of self-defense is contradictory to his defense of

actual innocence. See State v. Kramer, 7th Dist. Mahoning No. 01-C.A.-107, 2002-

Ohio-4176, ¶ 53. Self-defense presumes that the facts of the crime, as alleged in the

indictment or complaint, are true, but asserts that there are further facts that justify

the defendant’s actions and exempt him or her from liability. State v. Poole, 33 Ohio

St.2d 18-20, 294 N.E.2d 888 (1973). Davis did not admit that he committed the

offense of felonious assault or aggravated menacing; accordingly, the defense of self-

defense was not available to him.

Moreover, any claim that the gun accidentally discharged is also

contrary to a theory of self-defense. See State v. Johnson, 10th Dist. Franklin No.
06AP-878, 2007-Ohio-2792, ¶42-43 (defendant’s testimony that the firearm

discharged as a result of a struggle for the firearm and not as a result of his

intentional and willful act contradicted the application of self-defense). We note

that the jury found Davis not guilty of attempted murder and felonious assault with

a deadly weapon. Accordingly, insofar as the self-defense instruction was requested

involving the discharge of the firearm, the denial of the instruction was not

prejudicial. Davis’s third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR