[Cite as State v. Bell, 2023-Ohio-1010.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210494
TRIAL NO. B-1803675
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
MARKUS A. BELL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 29, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Derek W. Gustafson, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A repudiated handshake launched an argument that ultimately ended
with the death of one victim and serious injury of a second. Defendant-appellant
Markus Bell was thereafter convicted of murder, felonious assault, tampering with
evidence, and having weapons under disability following a jury trial. On appeal, Mr.
Bell claims that he was denied his right to effective assistance of counsel through
cumulative error and that the trial court committed plain error in instructing the jury
in connection with his self-defense claim. However, as explained in further detail
below, Mr. Bell does not carry the burden of establishing ineffective assistance of
counsel based on the extant record. Nor can we say that the jury instructions
constituted plain error. Accordingly, we overrule both of Mr. Bell’s assignments of
error and affirm the judgment below.
I.
{¶2} In June 2018, victims Shawn Kelley, Jr., (“Son”) and his father, Shawn
Kelley, Sr., (“Father”), walked toward the building where Mr. Bell lived with his
mother. Son and Mr. Bell had a contentious history including a recent spat when Son
declined to shake Mr. Bell’s hand, and Father hoped to speak with Mr. Bell and his
mother—an old friend of his—to prevent the dispute from escalating. As the Kelleys
approached the building, Mr. Bell emerged from the front door. Mr. Bell complained
to Father that Son would not shake his hand, and this slight really bothered him.
Father tried to calm him down, telling Mr. Bell that his son did not need to shake
anyone’s hand. Throughout this interaction, Father continued to call out for Mr. Bell’s
mother, believing that she could help defuse the situation.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} After a while, according to Father’s testimony, the situation began to
simmer down. However, a friend of Mr. Bell’s began to agitate the matter, prodding
Son and Mr. Bell to fight. Son agreed, and then Mr. Bell (unexpectedly, at least to the
Kelleys) pulled out a gun. He pulled the trigger once, but the gun did not discharge.
At this point, Father stepped toward Mr. Bell to try to stop him from shooting again.
But as Father moved toward him, Mr. Bell managed to shoot multiple rounds, hitting
Father in his leg and also shooting Son.
{¶4} Father testified that his son urged him to get up and began to run away.
He did not realize at this point that his son had been shot. Father and Son ran to the
nearby fire station to seek medical assistance.
{¶5} Father was rushed to the hospital, where he was treated for a gunshot
wound to the leg. After multiple surgeries, doctors informed him that his leg would
never fully recover. While in the hospital, Father learned that his son had succumbed
to his wounds.
{¶6} Father also testified that neither he nor his son had a weapon that day
and that he had not been aggressive toward Mr. Bell (indeed, he sought to deescalate
matters). But Mr. Bell testified—consistent with his self-defense theory—that he fired
as the Kelleys approached him while he was backing away. He believed that they would
attack him, bolstered by Son’s agreement to engage in a fight.
{¶7} The state eventually indicted Mr. Bell for one count of murder, one
count of felony murder, two counts of felonious assault, one count of tampering with
evidence, and one count of having a weapon while under disability (due to prior felony
convictions for burglary and drug-related offenses). During a lengthy pretrial stretch,
the court twice found Mr. Bell incompetent to stand trial and sent him to two
3
OHIO FIRST DISTRICT COURT OF APPEALS
psychiatric facilities for treatment. In February 2021, however, the court concluded
that he was competent to stand trial, and the case proceeded to trial. A jury convicted
Mr. Bell of all charges, and the court imposed an aggregate prison term of 32 years to
life. He now appeals this judgment, presenting two assignments of error.
II.
{¶8} In his first assignment of error, Mr. Bell maintains that he was denied
his right to counsel based upon the ineffective representation of his trial counsel.
According to Mr. Bell, the failures of counsel permeated all stages of the proceedings,
and considered cumulatively, they operated to deny him his constitutional right to
counsel.
{¶9} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State v.
Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45, citing the Sixth
Amendment to the United States Constitution, and Article I, Section 10, Ohio
Constitution. In reviewing an ineffective assistance of counsel claim, we consider
“whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland
v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An
appellant must demonstrate that (1) “counsel’s performance was deficient” and (2)
“the deficient performance prejudiced the defense.” Id. at 687. To show prejudice, an
appellant “must prove that there exists a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different.” State v. Bradley,
42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). And “[t]o justify a finding of ineffective
assistance of counsel, the appellant must overcome a strong presumption that, under
4
OHIO FIRST DISTRICT COURT OF APPEALS
the circumstances, the challenged action might be considered sound trial strategy.”
State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995), citing Strickland at
689. It is often difficult for a defendant to prevail on an ineffective assistance claim
on direct review (as in this case) because courts cannot stray outside of the trial record
to evaluate the ineffective assistance claim (which can happen during postconviction
review).
{¶10} Mr. Bell concedes that the cited failings of counsel may seem
inconsequential when considered individually, but asserts that these perceived errors,
taken together, rise to the level of cumulative error necessitating reversal. However,
as we explain in greater detail below, we disagree.
{¶11} To set some context, everyone acknowledged at trial that Mr. Bell shot
the Kelleys. In other words, Mr. Bell’s defense necessarily centered on self-defense.
As part of his self-defense claim, defense counsel cross-examined Father on whether
he or his son provoked Mr. Bell into shooting, cross-examined other witnesses on
whether they observed the Kelleys acting aggressively toward Mr. Bell, and explained
the theory and facts giving rise to the self-defense claim during closing argument. Trial
counsel called an expert witness to testify that Son’s toxicology screen revealed
methamphetamines in his system, which can cause a user to act aggressively. And trial
counsel called Mr. Bell himself to testify on his own behalf to share the narrative of
how and why he acted defensively.
{¶12} Based on the evidence at hand, the trial court provided jury instructions
that conveyed the elements of self-defense to the jury. While there are certainly things
that counsel could have done to better advance Mr. Bell’s defense, the record does not
support the conclusion that, had counsel performed optimally, a reasonable
5
OHIO FIRST DISTRICT COURT OF APPEALS
probability exists that the outcome of the proceedings would have differed. See
Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373. We proceed to address each of Mr.
Bell’s arguments in turn.
A.
{¶13} First, Mr. Bell argues that trial counsel failed to sufficiently investigate
his mental health status. In this respect, he emphasizes the court’s prior
determinations of incompetency, and posits that trial counsel should have done more
to challenge his competency in the wake of the trial court’s subsequent finding of
competency.
{¶14} But in February 2021, Dr. Charles Lee, an expert at Summit Behavioral
Healthcare who assessed Mr. Bell’s competency, concluded in his expert report that
Mr. Bell understood the charges against him and the potential penalties he faced, as
well as the roles of the various participants in the courtroom. Against this backdrop,
we cannot say that the record establishes that trial counsel rendered ineffective
assistance in failing to further investigate his mental condition. It appears that counsel
fully explored the competency issues below, and nothing in the record hints at any
deficiencies in counsel’s performance after receipt of Dr. Lee’s report. Given Dr. Lee’s
report, Mr. Bell merely speculates that another expert would have reached a different
conclusion, and “[i]t is well established that mere speculation cannot support either
the deficient performance or prejudice requirement of an ineffective-assistance
claim.” State v. Morgan, 2d Dist. Montgomery No. 27774, 2018-Ohio-3198, ¶ 16,
citing State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119. We
accordingly cannot say that trial counsel was ineffective in this regard.
6
OHIO FIRST DISTRICT COURT OF APPEALS
B.
{¶15} Second, Mr. Bell alleges that counsel fell below the Strickland standard
during voir dire by failing to adequately question a number of jurors and failing to
exercise all of his peremptory challenges. In this regard, he identifies certain jurors
who held positive views of law enforcement, jurors who questioned whether they
would be good jurors, a juror who had been threatened with a gun in the past, and two
jurors who expressed misconceptions about the legal concept of self-defense, arguing
that these jurors’ potential biases were not sufficiently explored during voir dire.
{¶16} At the same time, the prosecution questioned the jurors about some of
these issues, and the jurors generally assured the court that they could put aside their
personal feelings and assess the case on the merits. The jurors agreed to be fair and
impartial to both parties, and agreed that the verdict they reached would be based
solely upon facts of the case. To be sure, we can certainly imagine that some defense
counsel would have exercised peremptory challenges in this scenario. But generally,
“[d]ecisions on the exercise of peremptory challenges are a part of trial strategy * * *.”
State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 73, quoting
State v. Goodwin, 84 Ohio St.3d 331, 341, 703 N.E.2d 1251 (1999).
{¶17} Mr. Bell counters that his lawyer stated, on the record, that Mr. Bell did
not want him to exercise the peremptory challenges. In other words, he frames
counsel’s acquiescence to his client’s wishes under these circumstances to be
tantamount to abdication and relinquishment of the lawyer’s role. The trial record,
however, discloses nothing of the strategic calculus (or lack thereof) evaluated by trial
counsel with respect to the venire, and thus we see nothing that would take this
decision out of the realm of trial strategy. On the record at hand, we cannot say that
7
OHIO FIRST DISTRICT COURT OF APPEALS
trial counsel’s performance fell below an objective standard of reasonable
representation with respect to voir dire.
C.
{¶18} Next, Mr. Bell asserts that counsel proved ineffective in failing to
substantively advance his self-defense claim during opening statement. During
opening statement, counsel failed to articulate any theory justifying Mr. Bell’s use of
force, but rather generally asserted that the jury should consider why he may have
resorted to shooting the Kelleys. That “why,” revealed during trial, was a claim of self-
defense.
{¶19} While it may have been advantageous for counsel to delineate the self-
defense claim in opening statement, we fail to see from the record that this prejudiced
Mr. Bell or that there is a reasonable probability that this affected the outcome of his
trial. As explained above, counsel thoroughly pursued the self-defense claim through
cross-examination of witnesses and the surviving victim, the testimony of an expert
witness, the testimony of Mr. Bell himself, and the trial court’s instructions on the
matter. And counsel ultimately tied all of these threads together during closing
argument. We can certainly imagine a better opening statement, but it is possible that
counsel may have wanted to see how the evidence unfolded at trial before jumping in
with both feet on self-defense. And “[s]imply because there might have been ‘another
and better strategy available’ does not mean that counsel provided ineffective
assistance.” State v. Blanton, 2d Dist. Montgomery No. 29451, 2023-Ohio-89, ¶ 71,
quoting State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 19,
and State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
8
OHIO FIRST DISTRICT COURT OF APPEALS
D.
{¶20} Mr. Bell also takes issue with trial counsel’s failure to object at various
points throughout his trial. He first highlights counsel’s failure to object to certain
leading questions. But besides Mr. Bell’s failure to attempt to explain how he was
prejudiced by the questions, “it is within the trial court’s discretion to allow leading
questions on direct examination. * * * Therefore, [the Ohio Supreme Court does] not
find that the failure to object to any leading questions constitutes ineffective assistance
of counsel.” State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001). On this
record, we see nothing that could rise to the level of ineffective assistance based on the
leading questions identified in Mr. Bell’s brief.
{¶21} Mr. Bell also argues that counsel should have objected to coroner Dr.
Stephens’s comment regarding her opinion that Son was shot a second time while
turning away from Mr. Bell, as well as her statement, “I think [Son] was probably
thinking I had better get out of here.” But the comment that Son was shot while he
was turning away was based on the autopsy conducted by Dr. Stephens, so an objection
to this statement may well have been overruled. And while the latter statement
regarding Son’s thoughts certainly trespassed (improperly) on the speculative realm,
we cannot say that a failure to object here translates into ineffective assistance.
{¶22} Finally, Mr. Bell maintains that counsel should have objected to certain
comments made by the prosecutor. Mr. Bell testified on direct examination that
Father said “we are not here for [bystander]” before the shooting, presumably
implying that Father suggested that he and Son were instead there to confront Mr.
Bell. During cross examination, the prosecutor incorrectly stated that Mr. Bell did not
previously testify to that. But Mr. Bell does not attempt to explain how counsel’s
9
OHIO FIRST DISTRICT COURT OF APPEALS
failure to object to this statement prejudiced him or, to a degree of reasonable
probability, affected the outcome of his trial. And Mr. Bell contends that the state
mischaracterized his testimony regarding his disposal of the gun after the shooting.
But in fact, during direct examination, he stated that he threw his gun into the sewer,
and then later changed his story. Accordingly, it was not ineffective assistance for trial
counsel to fail to object to these statements.
{¶23} Mr. Bell is also concerned that trial counsel did not object when the state
suggested during voir dire and again during its opening statement that the burden of
proof rested on the defense. But the prosecutor’s statement during voir dire clarified
that the trial court would give the definition of a self-defense claim, and the trial court
gave a clear and comprehensive instruction on self-defense, placing the burden of
proof on the state, so this misstatement failed to prejudice Mr. Bell. And while the
prosecution’s statement during opening that self-defense is an affirmative defense is
an incorrect statement of the law to which trial counsel should have objected, again,
the jury was properly instructed on the elements of self-defense and the burden of
proof. Accordingly, Mr. Bell fails to persuade us that there exists a reasonable
probability that, were it not for counsel’s errors with respect to failing to raise
objections at various points throughout trial, the result of his trial would have been
different.
E.
{¶24} Mr. Bell proceeds to assert that counsel failed to cross-examine certain
witnesses about whether they knew his motive in shooting at the Kelleys. This,
according to Mr. Bell, represents a lack of preparation and effort by trial counsel.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} It would appear that Mr. Bell had hoped that trial counsel’s cross-
examination of state witnesses would further advance his self-defense claim. He takes
issue with the fact that counsel never cross-examined these witnesses on whether they
knew why Mr. Bell shot at the Kelleys. But once again, trial counsel adequately
advanced Mr. Bell’s self-defense claim through various other methods. And asking
witnesses to speculate on his state of mind would not have been proper (a point we
just alluded to above). See State v. Blanton, 4th Dist. Adams No. 16CA1031, 2018-
Ohio-1275, ¶ 21 (“Ohio law specifically precludes questions that require a witness to
speculate or guess about the thoughts of another.”). Moreover, some of the identified
witnesses, including police officers, testified that they arrived at the scene after the
shooting, and therefore were not qualified to speak on whether it appeared that Mr.
Bell acted consistent with self-defense. Overall, cross-examination of witnesses
generally falls well within the zone of trial strategy, and Mr. Bell has not established
that counsel’s approach to cross-examination of the witnesses in this case constituted
ineffective assistance.
F.
{¶26} In addition, Mr. Bell complains that trial counsel did not present
medical records to corroborate his testimony that he had been shot in the past and
suffered serious wounds, rendering him more concerned about threats than the
average person. These records would have undoubtedly provided additional
substantiation for Mr. Bell’s self-defense claim, but because counsel pursued other
methods of advancing this claim, and the jury was aware that Mr. Bell had been shot
in the past and thus was more sensitive, the decision not to present these records was
not substantially prejudicial.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Along these same lines, Mr. Bell questioned why counsel did not call his
appointed expert, Dr. Weisman, to testify regarding his determination that Mr. Bell
suffered from a trauma/stress related disorder. In his report, Dr. Weisman opined
that Mr. Bell suffered from a psychotic spectrum disorder as well as a trauma or stress
related disorder. He also noted that, due to being shot in 2017, Mr. Bell experienced
hypervigilance and an exaggerated startle response, among other effects.
{¶28} And again, while Dr. Weisman certainly would have added some
credibility to Mr. Bell’s self-defense claim, trial counsel’s failure to call him as a witness
does not rise to the level of prejudicing the defense so as to deprive Mr. Bell of a fair
trial, see Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.E.2d 674, and we cannot
say there exists a reasonable probability that his testimony would have affected the
verdict.
G.
{¶29} Paralleling his argument regarding trial counsel’s opening statement,
Mr. Bell also takes aim at counsel’s closing argument. Specifically, he notes that trial
counsel failed to mention in closing the state’s burden to disprove self-defense, that a
good-faith mistaken belief of great bodily harm is sufficient to warrant the use of self-
defense, and that the jury must put themselves in Mr. Bell’s position with his
characteristics, knowledge, and circumstances.
{¶30} However, as discussed above when considering potential deficiencies in
trial counsel’s opening statement, counsel presented expert testimony, utilized cross-
examination of witnesses, and elicited Mr. Bell’s own narrative of how he endeavored
to defend himself to promote the self-defense claim throughout trial. And the trial
court gave jury instructions explaining the elements of a self-defense claim as well as
12
OHIO FIRST DISTRICT COURT OF APPEALS
the state’s burden of proof. The jurors knew that the burden of proof rested on the
state and were otherwise apprised of the elements of a self-defense claim. Accordingly,
we cannot say that there exists a reasonable probability that the outcome of the trial
would have been different had trial counsel mentioned the details of the elements of a
self-defense claim during closing argument, so we do not find that counsel was
ineffective in this regard.
H.
{¶31} Finally, Mr. Bell takes aim at trial counsel’s failure to object to the trial
court’s jury instructions on fault and retreat. This issue is also featured in his second
assignment of error. However, as we discuss in further detail below, because these
instructions correctly encapsulated the law, Mr. Bell’s argument that counsel’s failure
to object to the instructions amounted to deficient performance that prejudiced him is
merely speculative.
{¶32} While the Ohio Supreme Court does recognize that individual errors,
when considered together, can result in ineffective assistance of counsel, State v.
Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 169, in this case, we
cannot say that counsel’s claimed deficiencies, taken together, rose to the level of
reversible error. Having reviewed each of his arguments in turn and weighed their
cumulative effect, we must conclude that Mr. Bell has not carried the burden of
establishing that counsel’s performance was deficient and prejudiced his substantial
rights on the state of this record. See Strickland, 446 U.S. at 694, 104 S.Ct. 2052, 80
L.Ed.2d 674. Therefore, Mr. Bell has not demonstrated that he was denied his right to
the effective assistance of counsel, and we overrule his first assignment of error.
13
OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶33} In his second assignment of error, Mr. Bell claims that the trial court
committed plain error in issuing certain jury instructions. Specifically, he maintains
that the trial court’s instructions on self-defense were not supported by the evidence
in two instances.
{¶34} “A trial court should confine its instructions to the jury to the issues
raised by the pleadings and the evidence.” Southside River-Rail Terminal Inc. v.
Crum & Forster Underwriters, 157 Ohio App.3d 325, 2004-Ohio-2723, 811 N.E.2d
150, ¶ 53 (1st Dist.). Generally, “[i]n reviewing a jury charge, an appellate court must
first consider whether the instruction was a misstatement of the law, and if so, whether
the erroneous instruction probably misled the jury.” Id. But here, because Mr. Bell
did not object to the jury instructions at trial, we review his claim only for plain error.
See State v. Love, 2017-Ohio-8960, 101 N.E.3d 623, ¶ 20 (1st Dist.) (where defendant
“failed to object to the jury instructions and consequently * * * forfeited all but plain
error”). “To establish plain error pursuant to Crim.R. 52(B), [the defendant] must
show ‘(1) that an error occurred, (2) that the error was obvious, and (3) that the error
affected the outcome of the trial.’ ” Id., quoting State v. Bandy, 1st Dist. Hamilton No.
C-160402, 2017-Ohio-5593, ¶ 70. “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.” Love at ¶ 20, quoting State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶35} With respect to fault, the trial court gave the following instructions:
The defendant was at fault if the defendant was the initial aggressor and:
Shawn Kelley, Jr. did not escalate the incident to great bodily force or
14
OHIO FIRST DISTRICT COURT OF APPEALS
deadly force; or the defendant provoked Shawn Kelley, Jr. into using
force; or the defendant did not withdraw from the incident; or the
defendant withdrew from the incident but did not reasonably indicate
by words or acts to Shawn Kelley, Jr. of his withdrawal.
***
To prove that the defendant, when using deadly force, did not act in self
defense, the State must prove beyond a reasonable doubt at least one of
the following: The defendant was at fault in creating the situation giving
rise to the gunshot wound of Shawn Kelley, Sr., * * *.
{¶36} And with respect to retreat, the trial court instructed, in two instances:
“The defendant had a duty to retreat if he was in a place which he had no lawful right
to be. The defendant had no duty to retreat if he was in a place which he had a lawful
right to be.”
{¶37} The trial court drew these jury instructions nearly verbatim from the
provisional Ohio Jury Instructions section on self-defense. See Ohio Jury Instructions
CR Section 421.21 (Rev. Nov. 5, 2022). The instructions represent correct statements
of the law pursuant to applicable case law and R.C. Chapter 2901. R.C. 2901.05 shifts
the burden to the state “to disprove self-defense involving deadly force by proving
beyond a reasonable doubt that the defendant (1) was at fault in creating the situation
giving rise to the affray; or (2) did not have a bone fide belief that [he] was in imminent
danger of death or great bodily harm for which the use of deadly force was [his] only
means of escape, or (3) violated a duty to retreat or avoid the danger[,]” State v. Smith,
1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 50, so the jury instructions in
15
OHIO FIRST DISTRICT COURT OF APPEALS
this case properly explained how the state could meet its burden of proving beyond a
reasonable doubt that Mr. Bell did not shoot the Kelleys in self-defense. As to the fault
instruction specifically, recent precedent from this court notes that one element of
self-defense in the use of deadly force is that “the defendant was not at fault in creating
the situation giving rise to the affray * * *.” State v. Neal, 1st Dist. Hamilton No. C-
210166, 2022-Ohio-1290, ¶ 18. And with respect to the duty to retreat instruction,
pursuant to R.C. 2901.09, “a person has no duty to retreat before using force in self-
defense * * * if that person is in a place in which the person lawfully has a right to be.”
R.C. 2901.09(B). The trial court so instructed.
{¶38} Mr. Bell responds that even if the instructions correctly captured the
law, no evidence in the record (1) suggests that he was at fault, or (2) indicates that he
did not have a right to be where the shooting occurred. But this fact-specific objection
to the instructions is difficult for us to evaluate on appeal—such matters should have
been presented to the trial court for it to consider. And we can compare the situation
at hand to that in State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19, 2020-Ohio-
3681, ¶ 26. In Wallace-Lee, the defendant argued that it was not appropriate for the
trial court to give a fault instruction “because the evidence, in [defendant’s] view,
showed she was not at fault.” Id. But applying a plain error review, the Second District
rejected the defendant’s argument because “the instruction tracked the language used
in persuasive case law, and * * * there was a legitimate question regarding
[defendant’s] fault in initiating the fight[.]” Id. The court also noted that defendant
“cannot show that the ‘at fault’ definition provided by the trial court caused the jury to
reject [defendant’s] claim of self-defense[.]” Id. Similarly, here, the instructions
16
OHIO FIRST DISTRICT COURT OF APPEALS
tracked the language found in relevant case law and we cannot say there was no
question regarding Mr. Bell’s fault. On this record, we do not see plain error.
* * *
{¶39} In light of the foregoing analysis, we overrule both of Mr. Bell’s
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
CROUSE, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
17