dissenting. I must respectfully dissent from the majority’s holding that it was reversible error for the trial court to fail to instruct the jury on duty to retreat and plain error for the court not to instruct on defense of family. The majority in this case takes a quantum leap in determining that the failure of the trial court to instruct the jury as to defense of family rises to plain error. We have stated on many occasions that in order for an unrequested or unobjected-to jury instruction to rise to the level of plain error, it must appear on the face of the record not only that the error was committed, but that, except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. Accord State v. Underwood (1983), 3 Ohio St. 3d 12, 3 OBR 360, 444 N.E. 2d 1332; State v. Cooperrider (1983), 4 Ohio St. 3d 226, 4 OBR 580, 448 N.E. 2d 452. In addition, we stated at the third syllabus in State v. Long (1978), 53 Ohio St. 2d 91, 7 O.O.3d 178, 372 N.E. 2d 804, “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.”
In holding that an instruction on duty to retreat should have been given, the majority relies on State v. Peacock (1883), 40 Ohio St. 333, wherein this court stated that “[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life. But a homicide in such a case would not be justifiable unless the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe that the killing is necessary to repel the assailant or prevent his forcible entry.” (Emphasis sic.) Id. at 334. These are not the facts of the case before us.
In this case, the evidence conflicts as to exactly what took place. It is not clear whether the appellee invited the victim to come to his home to determine whether it was appellee’s wife who had been calling the police regarding him. The victim had been drinking but at no time did he threaten to use, exhibit or imply that he had a deadly weapon or any type of instrument on or about his person or ready at hand so that he was capable of inflicting death or great bodily harm to the appellee. Before it is reversible error for a court to fail to instruct as to duty to retreat the accused must have presented evidence sufficient, if believed, to establish by a preponderance of the evidence that he had in fact acted in self-defense. In order for the accused *254to maintain his burden he must establish “* * * (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has [sic] 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 slayer must not have violated any duty to retreat or avoid the danger.” See State v. Robbins (1979), 58 Ohio St. 2d 74, 12 O.O. 3d 84, 388 N.E. 2d 755, at paragraph two of the syllabus. State v. Jackson (1986), 22 Ohio St. 3d 84, 22 OBR 452, 490 N.E. 2d 893. Once again we made it clear in Jackson, supra, citing Robbins, supra, that “the elements of self-defense are cumulative. * * * If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.” (Emphasis sic.) Jackson, supra, at 284, 22 OBR at 455, 490 N.E. 2d at 897.
Prior to reaching the issue of whether it was reversible error for the trial court to fail to instruct on duty to retreat and plain error for the trial court to fail to instruct on defense of family, we must consider the evidence presented in the instant case, since we stated in State v. Guster (1981), 66 Ohio St. 2d 266, 271, 20 O.O. 3d 249, 252, 421 N.E. 2d 157, 160, that “* * * a court’s instructions to the jury should be addressed to the actual issues in the case as posited by the evidence and the pleadings.” The evidence in this case is extremely weak as to self-defense. In fact it would be possible for a reasonable trier of fact not to have found that appellee had established self-defense in the first instance. As stated earlier, at no time did the victim exhibit any ability to inflict death or great bodily harm upon appellee or any member of his family. He was unarmed. It appears that the appellee left the initial encounter on the porch, entered his house and retrieved a gun, came back out on the porch and fired a shot at the victim and continued to fire additional shots.
The evidence in this case was so conflicting that an appellate court should not substitute its judgment for that of the trier of fact. When evidence is as confusing as to self-defense as it was in this case, it is the function of the jury to determine credibility of witnesses, since they were in a position to see and hear the witnesses and determine who is believable and who is not.
The trial counsel failed to request an instruction on defense of family. In addition, he did not object to the failure of the trial court to give such an instruction. One reason for this failure on the part of trial counsel could have been that there was no credible evidence to support such an instruction. According to the person that was with the victim, the victim was not the aggressor to any of these acts as evidenced by the record. There is no evidence that he was armed with any type of weapon. Furthermore, it is undisputed that appellee left the victim on the porch and entered his home, and that he did not lock the door or call the police. Instead, he retrieved a gun, went back out on the porch and reinitiated the affray. In view of the state of the evidence, the failure of the trial court to give such instruction as to defense of family reaffirms our statement in State v. Cooperrider, supra, at 227, 4 OBR at 581, 448 N.E. 2d at 453, “* * * that an 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. *2552d 91, 97 [7 O.O. 3d 178, 181, 372 N.E. 2d 804, 808].”
Additionally, since there was no credible evidence establishing the need for the trial court to give an instruction on duty to retreat, its failure to give such an instruction does not amount to reversible error.
In the case before us there has been no showing that if these instructions had been given the result would have been different, especially in view of the fact that it is uncontroverted that the victim was unarmed. This case does not rise to reversible error nor should the plain error doctrine have been invoked since there was no miscarriage of justice due to the state of the evidence. For all the foregoing reasons I would reverse the court of appeals and reinstate the judgment of the trial court.
Moyer, C.J., and Douglas, J., concur in the foregoing dissenting opinion.