[Cite as State v. Turner, 2011-Ohio-5417.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24322
vs. : T.C. CASE NO. 10CR1787
DANIEL MICHAEL TURNER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 21st day of October, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst.
Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH
45422
Attorneys for Plaintiff-Appellee
Peter R. Certo, Jr., Atty. Reg. No. 0018880, 1700 One Dayton Centre,
One South Main Street, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Daniel Turner, appeals from his conviction
and sentence for felonious assault, R.C. 2903.11(A), for knowingly
causing serious physical harm to another.
{¶ 2} On June 3, 2010, Jack Bozarth confronted several children
who were gathered in a yard near the intersection of Kings Highway
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and Arlene Avenue in Dayton about a fight Bozarth’s eight-year
old grandson had just gotten into with those other children.
Several of the children were Yolanda Brown’s children. Defendant,
who is Brown’s adult son, was also present. While Bozarth was
yelling at the children, and they were yelling back at him, Brown
came out of her house to investigate the commotion. Bozarth and
Brown almost immediately began yelling at each other. At some
point during the argument, Bozarth struck Brown, causing her to
stumble backwards. Defendant then immediately hit Bozarth in the
left side of his face, causing multiple fractures, including
orbital fractures that caused blood to pool behind Bozarth’s left
eye. A surgical procedure at Miami Valley Hospital was required
to allow the blood to drain from behind Bozarth’s eye. Without
that procedure, Bozarth may have lost his sight.
{¶ 3} Defendant was indicted on one count of felonious assault
in violation of R.C. 2903.11(A)(1). Following a jury trial,
Defendant was found guilty as charged. The trial court sentenced
Defendant to four years in prison.
{¶ 4} Defendant timely appealed to this court.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
ISSUE A DEFENSE OF ANOTHER JURY INSTRUCTION.”
{¶ 6} Defendant argues that the trial court abused its
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discretion by refusing to give his requested jury instruction on
the affirmative defense of defense of another.
{¶ 7} In State v. Kleekamp, Montgomery App. No. 23533,
2010-Ohio-1906, this court stated:
{¶ 8} “{¶ 35} ‘A criminal defendant has the right to expect
that the trial court will give complete jury instructions on all
issues raised by the evidence.’ State v. Williford (1990), 49 Ohio
St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App.
No. 22301, 2008-Ohio-2892, ¶ 9. As a corollary, a court should
not give an instruction unless it is specifically applicable to
the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 837
N.E.2d 823, 2005-Ohio-4736, ¶ 19. The decision to give a requested
jury instruction is a matter left to the sound discretion of the
trial court, and the court's decision will not be disturbed on
appeal absent an abuse of discretion. State v. Davis, Montgomery
App. No. 21904, 2007-Ohio-6680, ¶ 14.”
{¶ 9} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
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arbitrary.
{¶ 10} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 11} Ohio has long recognized an affirmative defense of
defense of another where one (1) reasonably and in good faith
believes that his family member is in imminent danger of death
or serious bodily harm and (2) only uses reasonably necessary force
to defend his family member such as he would be entitled to use
in self-defense. State v. Williford (1990), 49 Ohio St.3d 247,
250, 551 N.E.2d 1279.
{¶ 12} In Kleekamp, supra, we further stated:
{¶ 13} “{¶ 51} ‘The affirmative defense of defense of another
is a variation of self-defense. State v. Moss, Franklin App. No.
05AP-610, 2006-Ohio-1647. Under certain circumstances, a person
may be justified in using force to defend another person against
an assault. However, the actor then stands in the shoes of the
person he aids, and if the person aided is the one at fault in
creating the affray, the actor is not justified in his use of force.
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Id. One who acts in defense of another must meet the criteria for
self-defense. Id.’ State v. Wilson, Montgomery App. No. 22581,
2009-Ohio-525, ¶ 38.
{¶ 14} “{¶ 52} Self-defense is an affirmative defense which
the accused has the burden to prove by a preponderance of the
evidence. R.C. 2901.05(A); State v. Jackson (1986), 22 Ohio St.3d
281, 490 N.E.2d 893. ‘In order to establish self-defense, a
defendant must prove: (1) that the defendant was not at fault in
creating the situation giving rise to the affray; (2) that the
defendant had 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) that the
defendant did not violate any duty to retreat or avoid the danger.’
State v. Davis, Montgomery App. No. 21904, 2007-Ohio-6680, ¶ 14,
citing State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755.”
{¶ 15} An affirmative defense, such as self-defense or defense
of another, is in the nature of a confession and avoidance, where
the accused admits that he engaged in the conduct alleged but claims
that he was legally justified in doing so. State v. Rhodes (1992),
63 Ohio St.3d 613, 625. Such an instruction is not appropriate
where the defendant denies engaging in the conduct alleged upon
which the criminal charge is based. State v. McGhee, Montgomery
App. No. 23226, 2010-Ohio-977, at ¶54.
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{¶ 16} In order to determine whether a defendant has
successfully raised an affirmative defense under R.C. 2901.05,
the court is to inquire whether the defendant has presented
sufficient “evidence, which if believed would raise a question
in the minds of reasonable men concerning the existence of such
issue.” State v. Robbins (1979), 58 Ohio St.2d 74, 80, 388 N.E.2d
755, quoting State v. Melchoir (1978), 56 Ohio St.2d 15, 381 N.E,2d
195, paragraph one of the syllabus.
{¶ 17} Defendant claims that he was entitled to a jury
instruction on the defense of another based upon his testimony
at trial that he hit Bozarth immediately after Bozarth hit his
mother, and that he punched Bozarth in order to get Bozarth away
from his mother. In other words, Defendant was
protecting/defending his mother who had the right to use force
to defend herself after Bozarth struck her. Instead, Defendant
“stood in the shoes of his mother” and used force in her defense.
During his testimony, Defendant claimed that he hit Bozarth
“between his beard and chin,” and he denied hitting Bozarth with
enough force to cause his injuries.
{¶ 18} The trial court refused to instruct the jury on defense
of another because the court concluded that Defendant denied
engaging in the specific conduct, hitting Bozarth in the left eye,
that resulted in serious physical harm to Bozarth. Instead,
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Defendant admitted only to hitting Bozarth on the chin.
Accordingly, the trial court found that Defendant was not admitting
that he engaged in the specific conduct charged, which is the
necessary foundation for an affirmative defense. State v. McGhee.
{¶ 19} Because Defendant denied hitting Bozarth in or near his
left eye, and further denied using sufficient force to cause the
serious physical harm to Bozarth’s left eye, the evidence Defendant
presented constituted a denial of the particular criminal conduct
alleged, not a confession and avoidance. We agree with the trial
court that the evidence on which Defendant’s claim was predicated
is insufficient to raise an issue concerning defense of another
and justify a jury instruction on that affirmative defense.
Accordingly, the trial court did not abuse its discretion in
refusing to give that instruction.
{¶ 20} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 21} “THE TRIAL COURT FAILED TO CONSIDER ALL MITIGATING
FACTORS IN SENTENCING AND IMPOSED AN EXCESSIVE SENTENCE.”
{¶ 22} Defendant argues that the trial court erred by failing
to give proper consideration to the mitigating factors that apply,
resulting in a sentence that is excessive.
{¶ 23} In State v. Jeffrey Barker, Montgomery App. No. 22779,
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2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 24} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is
not required to make any findings or give its reasons for imposing
maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at
paragraph 7 of the syllabus. Nevertheless, in exercising its
discretion the trial court must consider the statutory policies
that apply to every felony offense, including those set out in
R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846
11 N.E.2d 1, 2006-Ohio-855, at ¶37.
{¶ 25} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly
and convincingly contrary to law, the trial court's decision in
imposing the term of imprisonment must be reviewed under an abuse
of discretion standard. Id.”
{¶ 26} At sentencing, the trial court indicated that it had
reviewed the presentence investigation report and the parties’
sentencing memorandums. The court heard oral statements by
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Defendant’s counsel. The court also informed Defendant about post
release control requirements. The court did not, however,
specifically state that it had considered the seriousness and
recidivism factors in R.C. 2929.12. Even if there is no specific
mention in the record that the trial court considered the purposes
and principles of felony sentencing, R.C. 2929.11, or the
seriousness and recidivism factors, R.C. 2929.12, it is presumed
that the trial court gave proper consideration to those statutes.
State v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43;
Kalish, at fn. 4. We additionally note that Defendant’s four year
sentence is within the authorized range of available punishments
for a felony of the second degree. R.C. 2929.14(A)(2).
Defendant’s sentence is not contrary to law.
{¶ 27} Defendant claims that the trial court failed to properly
consider several mitigating factors that apply, and as a result,
the court imposed an excessive sentence. Defendant points out
that the victim induced or facilitated the offense by yelling at
the children and striking Defendant’s mother, R.C. 2929.12(C)(1),
and that in committing the offense Defendant acted under strong
provocation, R.C. 2929.12(C)(2). Furthermore, Defendant is a
first time offender who has not previously been convicted of a
criminal offense or adjudicated a delinquent child. R.C.
2929.12(E)(1)-(3). The offense was committed under factual
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circumstances not likely to recur, R.C. 2929.12(E)(4), and
Defendant several times expressed genuine remorse, R.C.
2929.12(E)(5).
{¶ 28} While all of that may be true, this record nevertheless
supports the trial court’s sentence. First, we note that there
is a presumption in favor of a prison term for a second degree
felony. R.C. 2929.13(D)(1). Furthermore, the four year prison
term the trial court imposed is a low to mid-range sentence for
a second degree felony. R.C. 2929.14(A)(2). Additionally, the
trial court indicated that it would be favorably disposed to
granting judicial release after just one year if Defendant behaves
while in prison, because due to the bad environment Defendant was
raised in the court wasn’t sure Defendant really had a chance.
{¶ 29} Finally, the trial judge explained her reasons for
imposing a prison term, which includes the fact this was an offense
of violence that resulted in serious physical harm to the victim.
Throughout Defendant’s presentence investigation interview, he
minimized his involvement in the offense, denying that he hit the
victim in the eye and caused his serious eye injuries. The trial
court did not believe that. The trial court noted that the
community cannot tolerate causing serious physical harm to another
person. The victim in this case, an elderly man, had his left
eye socket shattered. The court found that community control would
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demean the seriousness of this offense, effectively concluding
that the presumption in favor of prison had not been rebutted.
{¶ 30} The overriding purposes of felony sentencing are to
protect the public from future crime by the offender and to punish
the offender. R.C. 2929.11(A). The trial court has discretion
to determine the most effective way to comply with the purposes
and principles of sentencing. R.C. 2929.12(A). We see no abuse
of discretion on the part of the trial court in imposing a four
year sentence in this case.
{¶ 31} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine, Esq.
Peter R. Certo, Jr., Esq.
Hon. Barbara P. Gorman