Opinion
2022-L-086
07-10-2023
STATE OF OHIO Plaintiff-Appellee, v. ANDREW T. ROBINSON, Defendant-Appellant.
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee). Adam Parker, The Goldberg Law Firm, LLC, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2021 CR 001510
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, LLC, (For Defendant-Appellant).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, Andrew T. Robinson, appeals the judgment of the Lake County Court of Common Pleas convicting him, after a trial by jury, on one count of felonious assault, one count of possession of cocaine, and one count of obstructing official business. For the reasons discussed in this opinion, we affirm.
{¶2} In the early morning of October 26, 2021, Denzel Harris called for a "Lyft" (private taxi service) ride to the residence of his close friend, Destiny Arnold. Ms. Arnold was staying with appellant in his first-floor apartment in Mentor, Ohio at the time. Mr. Harris and Ms. Arnold were in a relationship "on-again-off-again," but even when they were "off," they remained close friends. According to Mr. Harris, they communicated daily via phone or in person. On the morning in question, Ms. Arnold had not responded to any of Mr. Harris' phone calls and he became worried.
{¶3} Upon arriving at the apartment, at approximately 2:00 a.m., Mr. Harris knocked on the door, paused, and knocked again. Appellant was awakened by the knocking and peered out his front window. Appellant claimed he knew Mr. Harris by his face, but had never met him. According to appellant, Mr. Harris had both hands on one of the front windows and, in his estimation, appeared to be attempting to open it. Appellant went to the front door and confronted Mr. Harris. Appellant claimed Mr. Harris "got in his face" and, as a result, appellant struck Mr. Harris. Appellant then claimed he retreated into his apartment.
{¶4} According to Mr. Harris, after knocking on the door, he was merely standing near the window, not attempting to enter through the window. When appellant exited the apartment, he immediately struck Mr. Harris with what Mr. Harris believed to be a metal object, such as a weight plate or brass knuckles. After being struck, appellant descended upon Mr. Harris and punched him at least three more additional times in the lower body. Once appellant ceased his attack, he re-entered his apartment. Mr. Harris called 9-1-1. He was taken to the hospital where his left ear required stitches and eventually, plastic surgery.
{¶5} Upon arrival at the scene, police were unable to locate appellant. He was, however, eventually arrested near his place of employment several weeks after the incident. Prior to the arrest, he fled from the police on foot. Upon detaining appellant, police found he was in possession of a scale which later tested positive for the presence of cocaine.
{¶6} Appellant was indicted on two counts of felonious assault, in violation of R.C. 2903.11(A)(1) and R.C. 2903.11(A)(2), respectively, each felonies of the second degree; one count of possession of cocaine, in violation of R.C. 2925.11, a felony of the fifth degree, with an accompanying forfeiture specification; and one count of obstructing official business, in violation of R.C. 2921.31, a misdemeanor of the second degree.
{¶7} The matter proceeded to jury trial, after which appellant requested an instruction on the affirmative defense of self-defense and defense of residence. The court declined to give either instruction and the jury returned a guilty verdict on all counts. At sentencing, the trial court merged the two felonious assault counts for purposes of sentencing. The court sentenced appellant to an indefinite term of four to six years on the felonious assault count; one year on the cocaine possession count; and 90 days on the obstructing count. The court ordered the sentences to be served concurrently. This appeal follows.
{¶8} Appellant's first assignment of error provides:
{¶9} "The trial court abused its discretion by failing to give a jury instruction on self-defense or defense of residence."
{¶10} "The [trial] court must give all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder." State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995), citing State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Alternatively, "'[i]t is well established that the trial court will not instruct the jury where there is no evidence to support an issue.'" State v. Mankin, 10th Dist. Franklin No. 19AP-650, 2020-Ohio-5317, ¶ 34, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991). Therefore, in reviewing a record to determine whether there is sufficient evidence to support the issuance 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.'" Murphy at 591, quoting Feterle v. Huettner, 28 Ohio St.2d 54, 275 N.E.2d 340 (1971), syllabus. Generally, a reviewing court considers a trial court's refusal to give a requested jury instruction for abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). Cf. State v. Lessin, 67 Ohio St.3d 487, 494, 620 N.E.2d 72 (1993).
{¶11} The term "abuse of discretion" is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208, 209, ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). Put differently, a trial court abuses its discretion when it fails "'to exercise sound, reasonable, and legal decision-making.'" State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black's Law Dictionary 11 (8th Ed.Rev.2004).
{¶12} Appellant contends the trial court abused its discretion by not instructing the jury on the affirmative defenses of self-defense and defense of residence because the evidence at trial, viewed in his favor, indicated Mr. Harris was attempting to break into appellant's apartment at the time he confronted Mr. Harris.
{¶13} A defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that his or her use of force was in self- defense. State v. Messenger, __ Ohio St.3d __, 2022-Ohio-4562, __ N.E.3d __, ¶ 25. "[Similar] to the standard for judging the sufficiency of the state's evidence, if the defendant's evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when viewed in the light most favorable to the defendant, then the defendant has satisfied the burden." Id., citing State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999).
{¶14} Under R.C. 2901.05(B)(2),
[A] person is presumed to have acted in self-defense * * * when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering or has unlawfully and without privilege to do so entered, the residence * * * occupied by the person using the defensive force.
{¶15} "Residence," as used in R.C. 2901.05(B)(2), means "a dwelling in which a person resides either temporarily or permanently or is visiting as a guest." R.C. 2901.05(D)(3). "Dwelling" is defined as "a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile * * * [A] building or conveyance includes, but is not limited to, an attached porch * * *." R.C. 2901.05(D)(2).
{¶16} The Supreme Court of Ohio has highlighted the procedural steps a trial court must follow regarding a self-defense instruction:
"When such evidence is forthcoming the trial court must first, viewing that evidence in the light most favorable to the defendant, determine whether or not it is adequate to raise the self-defense issue, and, if believed, would under the legal tests applied to a claim of self-defense permit a reasonable
doubt as to guilt, stemming from that claim, to arise. Having concluded as a matter of law that the self-defense issue is thus properly tendered, the trial court need only instruct the jury as to the elements of self-defense."State v. Robinson, 47 Ohio St.2d 103, 112, 351 N.E.2d 88 (1976), quoting State v. Millett, 273 A.2d 504, 508 (Me.1971).
{¶17} To be entitled to an instruction on self-defense and/or defense of a residence, there must have been evidence presented that tends to support that appellant acted in self-defense and/or defense of his residence. State v. McCallum, 10th Dist. Franklin No. 19AP-796, 2021-Ohio-2938, ¶ 38.
{¶18} Appellant makes several arguments regarding the trial court's purported error in omitting the self-defense/defense of residence instructions. First, appellant contends the trial court erred in failing to view the evidence in a light most favorable to the defense. Next, appellant asserts the trial court misinterpreted R.C. 2901.05(B)(3)(b) because it purportedly concluded appellant was required to be physically present in the residence before he could be afforded the presumption of acting in self-defense. Finally, appellant contends the trial court erred in focusing on whether the area where the confrontation took place was part of appellant's residence. We shall address these arguments in turn.
{¶19} At trial, the evidence established that appellant's apartment has a walkway in front of the entrance. There are apartments above appellant's apartment which also have walkways; accordingly, there is an "overhang" above appellant's front door due to the upstairs walkway.
{¶20} Mr. Harris testified, upon arriving at the residence, he approached the door and knocked two to three times. He stated his knocks were not excessively loud. In between knocks, Mr. Harris testified he was pacing between the door and the front window. After his final knock, Mr. Harris indicated he was approximately a foot beyond the edge of the front window when he heard the apartment's door open. He then observed a Caucasian, "balding" male with a beard at the entry to the residence. Mr. Harris claimed he froze and the male, without saying anything, approached him and struck him on the left side of his head. Mr. Harris collapsed and his attacker proceeded to strike him in the lower part of his body at least three additional times. Mr. Harris testified he did not believe the attacker hit him with a fist, but rather with a "solid, metal object."
{¶21} Appellant testified that he was "scared awake" by "an extremely loud banging on [his] door." Appellant looked outside his window and observed Mr. Harris at the other side of his front window. Appellant testified it "appeared" Mr. Harris was trying to open the window. Appellant asserted he did not watch Mr. Harris long, approximately two seconds, before he went to his front door. Upon opening the door, appellant testified Mr. Harris turned around and approached him. Appellant asserted he asked Mr. Harris "what the F are you doing here[?]" Appellant testified Mr. Harris took a step towards him, "got right in [his] face" and, without hesitation, appellant struck Mr. Harris. After Mr. Harris fell, appellant admitted he struck Mr. Harris two additional times. Appellant claimed Mr. Harris lunged at him and he struck Mr. Harris again. At this point, appellant claimed he retreated into his apartment. Appellant testified he did not strike Mr. Harris with a metal object, but only with his fist.
{¶22} Initially, appellant claims the trial court failed to view the evidence in a light most favorable to the defense. We do not agree.
{¶23} While appellant testified that Mr. Harris "appeared" to be attempting to open his front window, he additionally stated he only observed him for two seconds. Moreover, appellant maintained that, upon opening the door, Mr. Harris turned toward him. Appellant did not state Mr. Harris still "appeared" to be attempting to enter his apartment through the window. Moreover, appellant did not testify or suggest he believed Mr. Harris was actively trying to pry up on or otherwise open the window, only that his hands were previously on the window.
{¶24} Further, appellant's testimony does not exist in a vacuum. Mr. Harris' testimony indicated he was interested in Ms. Arnold's well-being and was simply interested in checking on her. He admitted he knocked at the door and, after doing so, merely paced near the front window to the apartment. This evidence, even when viewed in appellant's favor, suggests that, at most, Mr. Harris was looking into the residence with his hands placed on the window at the time appellant observed him.
{¶25} Appellant's testimony actually supports the foregoing construction. Appellant testified that, upon opening the door, he observed Mr. Harris simply turn toward him. He did not testify, upon confronting Mr. Harris, that Mr. Harris still "appeared" to be attempting to gain entry through the window or even have his hands placed upon the window. To be entitled to the presumption of self-defense under R.C. 2901.05(B)(2), "the defendant must have used * * * force against the intruder while the intruder was inside of or attempting to enter the defendant's residence." (Emphasis sic and added.) State v. Estelle, 2021 -Ohio-2636, 176 N.E.3d 380, ¶ 15 (3d Dist.). By his own testimony, appellant struck Mr. Harris not while he was attempting to enter the residence, but as Mr. Harris approached him on the walkway or stoop outside of the residence.
{¶26} Finally, we recognize that R.C. 2901.05(B)(2) "clearly contemplates a scenario of a [home] invasion-i.e., the person against whom the defensive force is used is in the process of unlawfully and without privilege entering (or has entered) the defendant's residence * * *." State v. Nye, 2013-Ohio-3783, 997 N.E.2d 552, ¶ 29 (3d Dist.). Here, however, appellant's testimony, without more, does not provide sufficient evidence that Mr. Harris was attempting to break into the apartment. And, even if, for the two-second period appellant observed Mr. Harris, he believed Mr. Harris may have been attempting to enter the residence, the reasonableness of that belief was dispelled when appellant opened the door and Mr. Harris was merely standing on the front walkway. Viewing appellant's opinion and the entirety of the relevant evidence in a light most favorable to the defense, we conclude appellant failed to adduce sufficient evidence to be entitled to the instruction on the presumption of self-defense. The trial court, therefore, did not err in failing to instruct the jury on self-defense, defense of another, or defense of the residence.
{¶27} Appellant additionally argues that the trial court erred in concluding that R.C. 2901.05(B)(3)(b) undermined the statutory presumption in favor of self-defense/defense of residence under these facts. R.C. 2901.05(B)(3)(b) provides that the presumption of R.C. 2901.05(B)(2) does not apply if "[t]he person who uses the defensive force uses it while in a residence * * * and the person is unlawfully, and without privilege to be, in that residence * * *."
{¶28} Under the foregoing subsection, the person using force is not presumed to act in self-defense or defense of a residence if that person is unlawfully or without privilege in the residence. Even if the trial court relied upon a misapplication of R.C. 2901.05(B)(3)(b) exclusion, our analysis regarding appellant's failure to adduce sufficient evidence to receive the instruction demonstrates appellant was not prejudiced by the possible misapplication.
{¶29} Appellant also asserts the trial court erred in focusing on the specific area where the confrontation took place; namely, the front walkway of the apartment. The area of the confrontation is significantly relevant to a trial court's analysis of whether an instruction on the presumption of self-defense is warranted. While the walkway itself (as part of the residence or dwelling) is germane to the ultimate analysis in this case, it would appear the primary focus would be on Mr. Harris' conduct in relationship to the apartment's window and appellant's reasonable belief regarding that conduct. Consequently, similar to the previous point, even if the trial court placed any undue emphasis upon the area at which the assault took place, appellant's failure to produce sufficient evidence to require the instruction renders any potential error harmless.
{¶30} For a defendant to receive the benefit of a jury instruction on the presumption set forth in R.C. 2901.05(B)(2), the trial court must focus on both the conduct and location of the victim at the time the defendant asserts the affirmative defense. viewing the evidence in a light most favorable to the defense, appellant failed to produce evidence sufficient to demonstrate an instruction pursuant to R.C. 2901.05(B)(2) was legally appropriate and necessary.
{¶31} Finally, it bears noting that the jury instruction on self-defense appellant was seeking pursuant to R.C. 2905.01 (per the Ohio Jury Instructions, Section CR 421.19) provides, in relevant part:
2. STATE'S PROOF. To prove that the defendant's use of non-deadly force was not in (self-defense) (defense of his/her
residence), the state must prove beyond a reasonable doubt at least one of the following:
(A) the defendant was at fault in creating the situation giving rise to [the event in which the non-deadly force occurred]
(B) the defendant did not have reasonable grounds to believe that he/she was in (imminent) (immediate) danger of bodily harm; or
(C) the defendant did not have an honest belief, even if mistaken, that he/she was in (imminent) (immediate) danger of bodily harm
6. AT FAULT. The defendant did not act in self-defense if the state proved beyond a reasonable doubt that the defendant was at fault in creating the situation, incident, or argument that resulted in the injury. The defendant was at fault if the defendant was the initial aggressor and
(A) (insert name of victim[s]) did not escalate the situation, incident, or argument by being the first to use or attempt to use non-deadly force;
(B) provoked (insert name of victim[s]) into using force;
(C) did not withdraw from the situation, incident, or argument;
7. TEST FOR REASONABLE GROUNDS AND HONEST BELIEF. In deciding whether the defendant had reasonable grounds to believe and an honest belief that he was in imminent or immediate danger of bodily harm, you must put yourself in the position of the defendant, with his characteristics, his knowledge or lack of knowledge, and under the circumstances and conditions that surrounded him at the time. You must consider the conduct of (insert name of victim[s]) and decide whether his acts and words caused the defendant to reasonably and honestly believe that the defendant was about to receive bodily harm.
11. UNREASONABLE FORCE (ADDITIONAL). A person is allowed to use force that is reasonably necessary under the circumstances to protect himself or his residence from an
apparent danger. For you to find the defendant guilty, the state must prove beyond a reasonable doubt that the defendant used more force than reasonably necessary and that the force used was greatly disproportionate to the apparent danger.(Emphasis in bold added.)
{¶32} Even had the trial court given the instructions, the evidence demonstrates appellant, without obvious provocation, struck Mr. Harris. Further, even in light of appellant's testimony, there was no evidence that appellant subjectively or objectively believed he was in imminent danger of bodily harm. In this respect, there was evidence, beyond a reasonable doubt, that appellant's actions were not in self defense or defense of his residence. See OJI 421.19(2)(A)-(C).
{¶33} Furthermore, the evidence demonstrated appellant was "at fault." He was the initial, physical aggressor and, as such, initiated the use of the physical force. Appellant could have remained in his residence or immediately withdrew into his residence without initiating the physical encounter, but he clearly elected to assault Mr. Harris without direct or obvious provocation. See OJI 421.19(6)(A) and (C). There was nothing to suggest Mr. Harris' acts caused appellant to reasonably believe he was about to be physically harmed once the confrontation occurred. And, finally, viewing the evidence in its totality, the force appellant employed was more than reasonably necessary and was significantly disproportionate to the apparent danger. In this respect, appellant did not have a reasonable ground or an honest belief to justify his actions. See OJI 421.19(7) and (11). We therefore additionally conclude that, notwithstanding appellant's failure to produce sufficient evidence to require the presumption-of-self-defense instruction, any conceivable error in not giving the instruction was harmless as a matter of law.
{¶34} Appellant's first assignment of error lacks merit.
{¶35} Appellant's second assignment of error provides:
{¶36} "The jury returned a verdict against the manifest weight of the evidence."
{¶37} Appellant challenges the weight of the evidence as it relates to his felonious assault conviction as well as his cocaine possession conviction.
{¶38} A court reviewing the manifest weight of the evidence observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *4-5 (Dec. 23, 1994). A challenge to the weight of the evidence requires a court to consider whether the state met its burden of persuasion. State v. McFeely, 11th Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶ 78.
{¶39} First, appellant was convicted of felonious assault, in violation of R.C. 2903.11(A)(1), which required the state to prove, beyond a reasonable doubt, that appellant knowingly caused serious physical harm to Mr. Harris.
{¶40} Appellant simply relies upon his arguments advanced under his first assignment of error in support of his challenge to the weight of his felonious assault conviction. Because, however, appellant failed to provide sufficient evidence in support of the affirmative defense, these arguments lack merit.
{¶41} Here, the evidence demonstrated that appellant, upon confronting Mr. Harris on his front walkway, peremptorily and knowingly struck Mr. Harris on the side of his head. The blow was sufficient to knock Mr. Harris to the ground and cause significant damage to his left ear. Testimony indicated that Mr. Harris was taken to the hospital after the incident, where he received stitches. He eventually visited a plastic surgeon who removed the original stitches and re-sutured the ear for it to heal more effectively. The foregoing provides overwhelming support for the conclusion that appellant committed felonious assault on Mr. Harris. The jury did not lose its way in drawing this conclusion.
{¶42} Next, appellant challenges to the weight of the evidence provided in support of the possession of cocaine conviction.
{¶43} Appellant was convicted of possession of cocaine, in violation of R.C. 2925.11. That subsection required the state to prove, beyond a reasonable doubt, that appellant knowingly obtained, possessed or used cocaine or a compound, mixture, preparation or substance containing cocaine.
{¶44} At trial, the state called Patrolman Nicholas Zevnik, of the Mentor Police Department. The officer testified that, after the assault, police had difficulty locating appellant. They had visited his residence, but he was never there. Eventually, on November 19, 2021, Officer Zevnik received information that appellant may be at his place of employment, a Sunoco station. He proceeded to the station and observed an individual walking away from the station who matched appellant's description. Officer Zevnik notified Kirtland Police Department for assistance. Meanwhile, the individual had left the area. With the assistance of the Kirtland police, appellant was apprehended and Officer Zevnik testified he retrieved a digital scale with white residue on it from a backpack or "bookbag" appellant was carrying.
{¶45} The officer placed the scale in an envelope, sealed it, and marked it with the word "powder." The officer explained that because he did not know what the powder was, and it could be Fentanyl, the envelope was so designated for the officer's as well as the lab technician's safety. The envelope was then sent to the Lake County Crime Lab.
{¶46} The state also called Kimberly Gilson, a forensic analyst with the Lake County Crime Lab. Ms. Gilson testified she received the envelope from the Mentor Police Department containing the scale and powder. She tested the scale by swabbing its surface with a sterile one-sided swab. After performing her analysis, Ms. Gilson testified that the material on the swab contained cocaine residue.
{¶47} Finally, during his testimony, appellant admitted he was in possession of the scale on the date of his arrest. When asked if it was his, he stated he shared it with Ms. Arnold.
{¶48} In light of the foregoing, there was sufficient, credible evidence for the jury to return a verdict of guilty, beyond a reasonable doubt, on the possession of cocaine charge.
{¶49} Appellant's second assignment of error is overruled.
{¶50} Appellant's final assignment of error provides:
{¶51} "The trial court plainly erred in imposing an unconstitutional indefinite sentence under the Reagan Tokes Act."
{¶52} The issue of the facial constitutionality of the Reagan Tokes Law is currently pending before the Supreme Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496; and State v. Simmons, Sup. Ct. Case No. 2021-0532. This court has addressed the constitutional challenges that appellant advances in State v. Moran, 2022-Ohio-3610, 198 N.E.3d 922 (11th Dist.), State v. Taylor, 2022-Ohio-3611, 198 N.E.3d 956 (11th Dist.), and State v. Scott, 11th Dist. Trumbull No. 2022-T-0084, 2023-Ohio-1091.
Therein, we, inter alia, "determined that the Reagan Tokes Law does not violate the doctrine of separation of powers, an appellant's constitutional rights to due process, * * *, or trial by jury * * *." State v. Stearns, 11th Dist. Lake No. 2021 -L-091, 2022-Ohio-4245, ¶ 29, appeal allowed, 169 Ohio St.3d 1443, 2023-Ohio-554, 203 N.E. 3d 734.
{¶53} Because this court has previously passed upon appellant's challenges and found them without merit, appellant's constitutional arguments are without merit.
{¶54} Appellant's third assignment of error lacks merit.
{¶55} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶56} Appellant, Andrew T. Robinson, was entitled to jury instructions on self-defense and/or defense of a residence. The trial court gave neither and so committed reversible error. I respectfully dissent.
{¶57} As an initial matter, the majority incorrectly describes the standard of review when considering whether a defendant is entitled to a self-defense instruction as abuse of discretion. Supra at ¶ 10-11. While the abuse of discretion standard has traditionally been applied when reviewing the propriety of giving a particular instruction, this standard is not applicable in light of the language of the self-defense statute, R.C. 2901.05, and its recent interpretation by the Ohio Supreme Court. Instead, the appropriate standard is sufficiency of the evidence as described elsewhere in the majority opinion. Supra at ¶ 13, 16. The Ohio Supreme Court has expressly declared the sufficiency standard in State v. Messenger, __ Ohio St.3d __, 2022-Ohio-4562, __ N.E.3d __: "the sufficiency-of-the-evidence standard of review applies to [the defendant's] burden of production [that he was acting in self-defense] and a manifest-weight-of-the-evidence standard of review applies to the state's burden of persuasion [that he was not acting in self-defense]." Id. at ¶ 26; State v. Asp, 2023-Ohio-290, 207 N.E.3d 893, ¶ 56 (5th Dist.).
{¶58} The standard has also been described as de novo. State v. Robinette, 2023-Ohio-5, 205 N.E.3d 633, ¶ 39 (5th Dist.); State v. Sullivan, 11th Dist. Lake Nos. 2019-L-143 and 2019-L-144, 2020-Ohio-1439, ¶ 33 ("[b]ecause sufficiency is a question of law, '[o]ur standard of review for determining whether the trial court properly refused to give a jury instruction is de novo'") (citation omitted). Regardless of whether it is described as a sufficiency or a de novo standard, what is essential for appellate review is that, "if the defendant's evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when viewed in the light most favorable to the defendant, then the defendant has satisfied the burden." Messenger at ¶ 25. The Supreme Court has also recognized that the defendant's burden is not a demanding one: "[t]he reference in R.C. 2901.05(B)(1) to 'evidence presented that tends to support' self-defense indicates that the defendant's burden of production is not a heavy one and that it might even be satisfied through the state's own evidence." Id. at ¶ 22.
{¶59} For the purpose of determining whether Robinson was entitled to a self-defense instruction, the relevant evidence is as follows: Robinson knew who Harris was but did not know him personally. During the evening of October 25, 2021, Harris was "constantly * * * nonstop" calling Arnold, even after she had gone to sleep. Robinson eventually answered the phone and told Harris that Arnold was busy, "leave her alone." At about two o'clock on the morning of October 26, Robinson was sleeping in his bed when he was "scared" awake by "an extremely loud banging on [his] door." Looking between the blinds and the front window of his apartment, Robinson saw Harris with his hands on the window and it "appeared he was trying to open it." After a couple of seconds, Robinson opened his door and said "what the F are you doing here." Harris "took a step to [Robinson] and got right in [his] face." Harris had something in his hand. Robinson hit Harris "to keep him from getting inside" and because he "didn't know what [Harris] was capable of or what he was planning." Harris fell to the ground and Robinson "went in for two more." Harris "lunged" at Robinson and Robinson hit him again before retreating inside.
{¶60} This evidence, construed in Robinson's favor, tends to support his claim that he used force in self-defense and/or defense of his residence. Accordingly, it was necessary, not discretionary, for the trial court to instruct the jury as to the elements of self-defense. Supra at ¶ 16, quoting State v. Robinson, 47 Ohio St.2d 103, 113, 351 N.E.2d 88 (1976) ("[h]aving concluded as a matter of law that the self-defense issue is thus properly tendered, the trial court need only instruct the jury as to the elements of self-defense").
{¶61} The trial court declined to give an instruction on the grounds that Harris was not inside Robinson's apartment, but in a common area: "The argument [is] that [Harris] was on the porch as part of the private property, I don't think that's actually correct, it's a service way and walkway that's common to everybody in the complex so that's my decision on that issue."
{¶62} The trial court's reliance on Harris' presence in a "common" area is misplaced. The location of the person against whom defensive force is used is not typically material to a claim of self-defense. Location may be significant under the self-defense statute, which provides: "a person is presumed to have acted in self-defense * * * when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering * * * the residence * * * occupied by the person using defensive force." R.C. 2901.05(B)(2). However, this presumption does not apply if "[t]he person against whom defensive force is used has a right to be in * * * the residence." R.C. 2901.05(B)(3)(a). A plain reading of the statute demonstrates that the presumption is not rebutted in the present circumstances. The presumption under division (B)(2) applies when force is used against a person "in the process of unlawfully and without privilege * * * entering" a residence. Robinson testified that Harris did not have permission to be in his apartment, appeared to be trying to open the window, and rushed the door when it was opened. The presumption may be rebutted under division (B)(3) where the person has "a right to be in * * * the residence." The two situations are mutually exclusive. Harris, who was not actually in the residence, cannot have a right to be in a residence that he is unlawfully trying to enter.
{¶63} The majority avoids the issue by finding that Robinson "failed to adduce sufficient evidence to be entitled to the instruction on the presumption of self-defense." Supra at ¶ 26. Such a conclusion is only tenable, however, by weighing the evidence in the State's favor and denying Robinson the benefit of reasonable inferences. The majority wholly discounts the evidence tending to support Robinson's claim of self-defense.
{¶64} As detailed above, Robinson was awoken at two in the morning by a loud banging on the door. He observed Harris, who had been repeatedly calling his roommate/girlfriend ("blowing up Destiny's phone"), trying to open his window. Robinson opened the door to ask what he was doing. While he was asking the question, Harris stepped toward him and "got right in [his] face." Robinson believed it was necessary to strike Harris "to keep him from getting inside." Contrary to the majority's position, it is not unreasonable to infer that someone trying to open one's window at two in the morning is trying to unlawfully enter the residence. The majority states that, even if Robinson believed Harris was trying to enter the apartment, "the reasonableness of that belief was dispelled when appellant opened the door and Mr. Harris was merely standing on the front walkway." Supra at ¶ 26. This is not an accurate characterization of the testimony. According to Robinson, Harris was trying to open the window and came at him almost immediately upon opening the door. Even Harris testified that he was pacing back and forth past the window and turned around to face Robinson when he heard the door open. Neither witness testified that Harris was "merely standing" there.
{¶65} The majority further concludes that, even if an instruction on self-defense were appropriate, such error was harmless as a matter of law because the evidence demonstrated that Robinson was "at fault": "he was the initial, physical aggressor and, as such, initiated the use of the physical force" since he "could have remained in his residence or immediately withdrew into his residence without initiating the physical encounter." Supra at ¶ 46. A harmless error analysis in the present circumstances is not appropriate. As an initial matter, "a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence if that person is in a place in which the person lawfully has a right to be." R.C. 2901.09(B). Since Robinson was lawfully in his apartment, the majority cannot properly consider the facts that Robinson could have remained in or withdrawn into his residence.
{¶66} Moreover, assuming that Robinson was entitled to a self-defense instruction, the State bore the burden of proving the defense did not apply beyond a reasonable doubt. An assumption that the instruction was appropriate means that there was legally sufficient evidence to support the defense. Messenger, __ Ohio St.3d__, 2022-Ohio-4562, __ N.E.3d __, at ¶ 13. Such can be harmless, then, if it is against the manifest weight of the evidence. Typically, this court will "defer to the factual findings of the trier of fact regarding the weight to be given the evidence and credibility of the witnesses." State v. Stroud, 11th Dist. Ashtabula Nos. 2022-A-0032, 2022-A-0033, and 2022-A-0034, 2023-Ohio-569, ¶ 37. In the present case, however, the uninstructed jury never made factual findings relevant to self-defense. Thus freed from the constraint of deferring to the trier of fact, the majority concludes not only that Robinson was at fault but also that he did not reasonably believe that he was about to be harmed and that he employed more force than was reasonably necessary and/or force significantly disproportionate to the apparent danger. Supra at ¶ 46. On the contrary, the evidence regarding self-defense in the present case was not so patently one-sided that the jury's consideration of the evidence was simply pro forma. I am unwilling to speculate that the jury could only conclude that Robinson, awoken from sleep at two in the morning by someone banging on his door and trying to open his window, was at fault in creating the situation. Robinette, 2023-Ohio-5, at ¶ 63 (where the defendant "defended himself at trial by attempting to create in the minds of the jurors a reasonable doubt that his actions were in defending himself, his girlfriend and his home * * *, the error to [not] charge the jury with respect to the defense of self-defense was highly prejudicial").
{¶67} For the foregoing reasons, I respectfully dissent and would reverse the conviction for Felonious Assault for retrial.