State v. Lovett , 2022 Ohio 1693 ( 2022 )

[Cite as State v. Lovett, 2022-Ohio-1693.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29240
:
v. : Trial Court Case No. 2020-CR-3360
:
DEVION LOVETT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 20th day of May, 2022.
...........
MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
EPLEY, J.
-2-
{¶ 1} Devion Lovett was found guilty after a jury trial in the Montgomery County
Court of Common Pleas of two counts of felonious assault (deadly weapon and serious
physical harm), each with a firearm specification, and one count of improper handling of
a firearm in a motor vehicle. After a mistrial on an additional count of felonious assault
(deadly weapon), Lovett pled no contest to that offense. After merging some offenses,
the trial court imposed an agreed aggregate sentence of 6 to 7½ years in prison.
{¶ 2} Lovett appeals from his convictions, claiming that his speedy trial rights were
violated and that the trial court abused its discretion in denying his request for a jury
instruction on self-defense. For the following reasons, the trial court’s judgment will be
affirmed.
I. Facts and Procedural History
{¶ 3} On November 19, 2020, Lovett was indicted on two counts of felonious
assault (deadly weapon), one count of felonious assault (serious physical harm), and one
count of improper handling of a firearm in a motor vehicle. Each felonious assault charge
contained a three-year firearm specification. The charges arose from an altercation at a
gas station between Lovett and two other individuals during which Lovett retrieved a gun
from his car and fired several shots, hitting one of the men. Lovett filed a notice that he
was claiming self-defense and defense of another.
{¶ 4} After delays occasioned by motions and a continuance due to the COVID-19
pandemic, Lovett moved to dismiss the case on speedy trial grounds. Soon after,
-3-
Lovett’s defense counsel moved to withdraw, and Lovett retained new counsel. The trial
court denied the motion to dismiss, and the matter proceeded to a jury trial on June 15,
2021.
{¶ 5} At trial, the State presented evidence that on October 22, 2020, Jacob Webb
and Alex Bieker drove to the Valero gas station on Valley Street in Riverside. Webb
parked at a pump, and the two men went inside the store to purchase some items.
Webb’s car was parked facing Lovett’s, but he testified that he did not notice Lovett there.
After completing their purchases, Webb and Bieker got back into Webb’s car. Webb
drove a short distance from the pump, but stopped before pulling into the street so that
he could select music on his phone. At this juncture, Webb’s car was nearly parallel to
Lovett’s, but facing in opposite directions. The front of Webb’s car angled toward Valley
Street.
{¶ 6} While Webb was picking out music, Lovett exited his car and took
approximately four steps over to Webb’s driver’s door. Lovett opened the door, grabbed
Webb’s steering wheel, and starting punching him. Bieker heard Lovett say something
to the effect of “I told you I was going to find you” or “I told you I would get you.” As
Webb’s car drifted forward and Webb tried to put the vehicle in park, Bieker got out of the
passenger side, came around the back of the vehicle, and hit Lovett in the face in an
attempt to “get him off” of Webb. Lovett was knocked to the ground. Webb’s car curved
around toward the left rear of Lovett’s car and stopped.
{¶ 7} Lovett got up and turned his attention to Bieker, who was backing away and
asking Lovett to let them leave. While Lovett advanced on Bieker, Webb got out of his
-4-
car, and Bieker called to Webb for help. Webb then started to run toward Lovett on the
driver’s side of Lovett’s car. Lovett turned from Bieker and ran along the passenger side
of his car, with Webb and Bieker following. When Lovett circled around and reached his
driver’s side door, he grabbed a gun and turned to shoot at Webb and Bieker, who then
were by the trunk of Lovett’s car. Upon seeing a gun, Webb and Bieker both turned to
run away. Lovett fired multiple shots; two shots struck the ground near Webb’s hands
after he tripped, and one shot hit Bieker’s right thigh. Webb and Bieker both testified that
they did not have a gun when the altercation occurred. Lovett left the scene in his car,
and Webb and a witness, Mindy Payne, each called 911. Webb identified Lovett as the
shooter, and Payne provided a description of Lovett and his vehicle.
{¶ 8} Lovett’s girlfriend, Valerie Depoyster, who was seated in Lovett’s car
throughout the incident, corroborated much of Webb’s and Bieker’s testimony about what
had occurred. She further testified that she had not been threatened during the incident
and had not been fearful for her safety. After Depoyster and Lovett left the gas station,
Lovett dropped her off at a hotel in Beavercreek where they were staying. Neither called
911 to report an assault. Later in the day, Lovett asked Depoyster to meet him near
Cincinnati and bring him some clothes and other items. Lovett told her that he would let
her know when he was somewhere safe.
{¶ 9} Officer Michael Brewer, an evidence technician, recovered four shell casings
from the scene, and Detective Michael Sullivan was assigned to investigate the shooting.
Webb and Depoyster both told Sullivan that Lovett was the shooter. A few days later,
Lovett was apprehended in Indianapolis, Indiana. Lovett admitted to Detective Sullivan
-5-
that he had shot at Webb and Bieker, and he said that he had gotten rid of the gun. In
recorded jail phone calls after his arrest, Lovett described how scared Webb looked when
he opened the car door. He also admitted that he had taken three shots and had been
aiming for Webb when he fired his gun.
{¶ 10} Lovett testified in his own defense. He said that on October 22, 2020,
he was at Valero with his girlfriend to purchase gas when he saw Webb. According
to Lovett, Webb had previously confronted him due to a fatal automobile collision
involving Lovett and Webb’s brother several years earlier. Lovett commented to
Depoyster, “It’s the guy that’s been threatening me.” As Webb was leaving the gas
station, Lovett decided “to approach the situation and tell him to stop threatening me
and my family and squash it right there.” Lovett got out of his car and approached
Webb’s car, but he testified that he left his gun in his car because he “had no intention
to hurt him.”
{¶ 11} Lovett admitted that he “did walk aggressively” to Webb’s vehicle, and when
he opened Webb’s car door, he told Webb that his (Webb’s) brother hit the side of his car
and to stop threatening him. Lovett denied striking Webb. He testified that Webb threw
his phone at Lovett and jumped into the back seat. Lovett said that he grabbed the
steering wheel to keep Webb’s car from sliding into traffic. When Lovett turned around,
he was hit in the left eye by Bieker, knocking him to the ground. The impact also knocked
out Lovett’s contact lens and caused his eye to swell shut.
{¶ 12} Lovett testified that when he got back up, he asked Bieker why he had
punched him. Lovett heard Bieker tell Webb, “Come on, Jake, let’s go” and saw Webb
-6-
running at him, clutching his pants. Lovett testified that he was in fear for his life. He
stated that he did not get in his car and drive away, because Webb and Bieker were close
to him and he “felt like if [he] just sat down in the car, they both would have opened up
the doors, and [he] was scared for [his] girlfriend’s safety, too.” He stated that he
grabbed his gun to protect his and his girlfriend’s lives and fired “I thought, three, but I
guess four” shots at the ground. Lovett then sped away. He stated that he left the gas
station because he did not want his girlfriend involved, and he left the area because he
did not know what to do.
{¶ 13} Lovett requested a jury instruction on self-defense, which was denied. The
trial court reasoned that the evidence showed that Lovett was at fault in creating the
situation that gave rise to the altercation and shooting, that he used deadly force, and that
Lovett violated his duty to retreat.
{¶ 14} After deliberating, the jury found Lovett guilty of the felonious assault
charges related to Bieker, which were charged in Counts 1 (deadly weapon) and 3
(serious physical harm), as well as the firearm specifications attendant to Counts 1 and
3. It also found him guilty of improper handling of a firearm (Count 4). The trial court
declared a mistrial as to Count 2, the felonious assault (deadly weapon) charge related
to Webb, but Lovett subsequently pled no contest to that offense. As part of his plea,
the State dismissed the firearm specification accompanying Count 2 and the parties
agreed to a sentence of 6 to 7½ years in prison on all of the charges.
{¶ 15} At sentencing, the trial court merged Count 3 into Count 1 and imposed
concurrent sentences totaling a minimum of 3 to a maximum of 4½ years in prison, plus
-7-
three years for the firearm specification to be served prior and consecutively to the
sentences for the offenses.
{¶ 16} Lovett appeals from his convictions, raising two assignments of error.
II. Speedy Trial
{¶ 17} In his first assignment of error, Lovett claims that the trial court erred in
denying his motion to dismiss based on a violation of his speedy trial rights.
{¶ 18} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and Article I, Section 10 of the Ohio Constitution. Ohio’s
speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional
protection of the right to a speedy trial.” Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661
N.E.2d 706 (1996). Accordingly, the speedy trial statutes must be strictly construed
against the government. Id.{¶ 19} R.C. 2945.71 designates specific time requirements for the government to
bring an accused to trial. Under that statute, a felony defendant must be brought to trial
within 270 days of arrest. R.C. 2945.71(C). Each day during which the accused is held
in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E).
The day of arrest is not counted when calculating an accused’s speedy trial time. State
v. Cimpaye, 2020-Ohio-2740, 154 N.E.3d 415, ¶ 17 (2d Dist.).
{¶ 20} A defendant can establish a prima facie case for a speedy trial violation by
demonstrating that the trial was held past the time limit set by statute for the crime with
which the defendant is charged. State v. Gray, 2d Dist. Montgomery No. 20980, 2007-
Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the State
-8-
to establish that some exception[s] applied to toll the time and to make the trial timely. If
the State does not meet its burden, the defendant must be discharged. R.C. 2945.73.”
Id.{¶ 21} The time within which a defendant must be brought to trial may be extended
only for the reasons specifically enumerated in R.C. 2945.72. State v. Brewer, 2d Dist.
Montgomery Nos. 22159, 22160, 2008-Ohio-2715, ¶ 37, citing State v. Palmer, 84 Ohio
St.3d 103, 702 N.E.2d 72 (1998). Those reasons include any period of delay
necessitated by a motion instituted by the accused, the period of any continuance granted
on the accused’s own motion, and “the period of any reasonable continuance granted
other than upon the accused’s own motion.” R.C. 2945.72 (E), (H). A discovery request
is a tolling event under R.C. 2945.72(E). State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-
7040, 781 N.E.2d 159, syllabus.
{¶ 22} Sua sponte continuances fall within continuances “granted other than on
the accused’s own motion.” R.C. 2945.72(H). When continuing a case sua sponte, the
trial court must enter the order of continuance and the reasons for the order by journal
entry prior to the expiration of the time limits prescribed in R.C. 2945.71 for bringing a
defendant to trial. State v. Ramey, 2012-Ohio-6187, 986 N.E.2d 462, ¶ 12 (2d Dist.);
State v. Mincy, 2 Ohio St.3d 6, 9, 441 N.E.2d 571 (1982). “The journalization of reasons
is necessary to permit the appellate court to determine whether, on the accused’s claim
that his statutory speedy trial rights were violated, the period of delay resulting from the
sua sponte continuance was nevertheless ‘reasonable.’ ” Ramey at ¶ 13, citing R.C.
2945.72(H).
-9-
{¶ 23} In this case, Lovett was arrested on the charges on November 17, 2020.
Day one of his speedy trial time began on the next day, November 18, 2020. Lovett
remained incarcerated from that day until his jury trial on June 15, 2021. Due to his
incarceration, the State had 90 calendar days – until February 15, 2021 – to bring him to
trial. The following events occurred which tolled Lovett’s case and extended the speedy
trial deadline.
{¶ 24} On December 2, 2020, Lovett filed a demand for discovery, which was
received by his attorney the next day (1 day tolled). On December 7, 2020, Lovett filed
a motion for bond review (which was denied on December 21) and his attorney requested
continuances of a status conference until December 28, 2022 (21 days tolled). The
speedy trial deadline was, therefore, extended from February 15 until March 9, 2021.
{¶ 25} At the December 28, 2020 scheduling conference, the trial court apparently
set the final pretrial conference for March 22, 2021 and the jury trial for March 29, 2021,
which was beyond the speedy trial deadline. A scheduling order was filed the next day.
{¶ 26} In a decision filed on December 31, 2020, the trial court provided its
explanations for scheduling Lovett’s jury trial beyond the early March 2021 speedy trial
deadline. The court stated that the common pleas court had issued a series of
emergency and administrative orders in response to the “ongoing public health crisis
caused by the COVID-19 pandemic,” which included the suspension of jury trials. The
trial court noted that the Attorney General of the State of Ohio had opined that the current
pandemic emergency provided a reasonable basis for a continuance of a trial beyond the
time limitations imposed under R.C. 2945.71, as well as under state and federal
-10-
constitutional guarantees. The Ohio Supreme Court also had issued guidance, which
included limiting in-person proceedings.
{¶ 27} The trial court further recognized that, as of the date of its ruling, “the public
health crisis continues” and Montgomery County was under a Level 3 (red) public
emergency pursuant to the Ohio Public Health Advisory System, “which means that there
is ‘very high exposure and spread’ and activities are to be limited as much as possible.”
At that time, Ohio was under a mandatory mask order and nighttime curfew imposed by
the Governor, and there were limits, with exceptions, on the size of public gatherings.
The Ohio Department of Health continued to recommend that people remain
approximately six feet away from each other in public settings, as large gatherings of
people exacerbated community spread and put those attending at greater risk of
exposure to COVID-19.
{¶ 28} The trial court found that “[l]imiting the number of people in a courtroom and
maintaining the appropriate social distancing make jury service difficult to accomplish
within the parameters set by the recommendations of the Ohio Department of Health.
Even with precautions being taken in the courtroom, jurors would likely be in situations
where they would be in close proximity to each other, thereby increasing the risk of
spreading COVID-19.” In addition, the court noted that some individuals might be
uncomfortable participating in a jury trial due to the potentially high rate of exposure to
and risk of contracting COVID-19 and that a jury trial “poses a risk to the defendant in this
case, who is currently housed at the Montgomery County Jail,” and potentially to those
housed at the jail.
-11-
{¶ 29} The trial court also commented on the effect of COVID-19 on its docket. It
stated: “Due to the inability to conduct jury trials during the months of March through July
of 2020 trials were rescheduled. Those trials are now set for January, February and
March of 2021. The court has two (2) to three (3) jury trials scheduled each week in
January, February and early March of 2021. Accordingly, a trial cannot be scheduled in
this matter at or prior to these speedy trial deadline dates. * * * At this time, it is not
practicable for this court to conduct a jury trial as a remote proceeding.”
{¶ 30} We find the trial court’s sua sponte continuance of Lovett’s trial date until
March 29, 2021 was reasonable. Shortly before the trial court’s sua sponte continuance,
the Ohio Supreme Court recognized the seriousness of the public health emergency,
noting that “[i]t is now December 2020, and we are approaching what could be the height
of the COVID-19 pandemic. The daily numbers of confirmed COVID-19 cases,
hospitalizations, and deaths have significantly increased.” In re Disqualification of
Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 5. The supreme court
emphasized that, “[d]uring this public-health emergency, a judge’s priority must be the
health and safety of court employees, trial participants, jurors, and members of the public
entering the courthouse.” Id. at ¶ 8. It reiterated that “all Ohio judges have been
advised [that] trial judges have the authority to continue trials for defendants on a case-
by-case basis without violating speedy-trial requirements.” Id. at ¶ 7. The supreme
court cited R.C. 2945.72(H) and the Ohio Attorney General’s opinion, which approved of
the suspension of jury trials to prevent the spread of COVID-19 and opined that “they may
do so consistent with state and federal speedy-trial obligations. * * * Although tolling
-12-
speedy trial time by suspending jury trial activity is an extraordinary step, it is lawful – and
responsible – to do so during a pandemic emergency.” The supreme court held that it
was reasonable to continue a trial because of a pandemic state of emergency. Id.; see
also State v. Voris, 2d Dist. Miami No. 2021-CA-2, 2022-Ohio-152, ¶ 30 (the trial court
lawfully scheduled defendant’s jury trial outside of the statutorily-required speedy trial
time, pursuant to R.C. 2945.72(H), based on the COVID-19 pandemic and the fact that
the county remained in a state of emergency due to the virus).
{¶ 31} Moreover, R.C. 2945.72(H) “contemplates continuances resulting from the
court’s docket pressures.” State v. Tillman, 2d Dist. Clark No. 2006-CA-118, 2008-Ohio-
2060, ¶ 17, citing State v. Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976); State v.
Dillon, 2d Dist. Greene No. 2020-CA-4, 2020-Ohio-5031, ¶ 39. The trial court’s need for
a continuance in Lovett’s case stemmed in part from delays caused by the COVID-19
pandemic in older criminal cases, and the record reflects that March 29, 2021 was the
earliest possible trial date that fit within both the court’s and counsel’s schedules. Both
the on-going pandemic and the docket pressures resulting from prior restrictions on jury
trials justified a reasonable continuance of Lovett’s trial date. Here, the continuance until
March 29, 2021, a delay of approximately three weeks, was reasonable.
{¶ 32} After the jury trial was scheduled for March 29, 2021, an available trial date
opened in February 2021. The trial court contacted counsel about the possibility of
holding the jury trial then, but defense counsel was unavailable.
{¶ 33} On March 9, 2021, Lovett filed a motion to dismiss on speedy trial grounds.
“A motion to dismiss under speedy trial grounds operates to toll the statute.” State v.
-13-
Lewis, 2d Dist. Montgomery No. 28962, 2021-Ohio-1895, ¶ 62, citing State v. Sanchez,
110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 28. A week later, defense
counsel filed a motion to withdraw, which also tolled the speedy trial time pursuant to R.C.
2945.72(E).
{¶ 34} Lovett retained counsel, who was substituted on March 22, 2021; the trial
court vacated the March 29 trial date due to the substitution of counsel and indicated that
a pretrial conference would be held on March 29 instead. New defense counsel agreed
that he was in the process of obtaining the State’s discovery from prior defense counsel
and would be in a better position to set a new trial date at that time. The court filed an
entry continuing the case from March 22, 2021 until March 29, 2021, at the request of
defense counsel. At a later pretrial conference, the trial court scheduled the final pretrial
conference for June 7, 2021, and the jury trial for June 14, 2021. On June 9, 2021, the
court overruled Lovett’s March 9 motion to dismiss in a written decision. The
continuance of the trial date from March 29 to June 14 was occasioned by Lovett’s
pending motion and substitution of counsel. Consequently, this period of delay was not
chargeable to the State.
{¶ 35} The court indicated at the June 7, 2021 final pretrial conference that trial
would begin on June 15, 2021. We cannot say that this one-day delay (from June 14 to
June 15) was unreasonable.
{¶ 36} We therefore conclude that the trial court did not err when it overruled
Lovett’s motion to dismiss on speedy trial grounds and that Lovett’s statutory speedy trial
rights were not violated when he was brought to trial on June 15, 2021.
-14-
{¶ 37} In his appellate brief, Lovett states in conclusory fashion that his
constitutional right to a speedy trial also was violated. App.R. 16(A)(7) requires an
appellant’s brief to contain “[a]n argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies.” App.R. 12(A)(2) further provides that an appellate court “may disregard
an assignment of error presented for review if the party raising it fails to identify in the
record the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A).” Lovett has not supported his
constitutional argument with any legal authority or analysis, and we decline to address it.
{¶ 38} Lovett’s first assignment of error is overruled.
III. Self-Defense
{¶ 39} In his second assignment of error, Lovett claims that the trial court abused
its discretion in failing to instruct the jury on self-defense.
{¶ 40} A person may act in self-defense, defense of another, or defense of that
person’s home. R.C. 2901.05(B)(1). The self-defense statute provides that “[i]f, at the
trial of a person who is accused of an offense that involved the person’s use of force
against another, there is evidence presented that tends to support that the accused
person used the force in self-defense, * * * the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self-defense * * *.”
R.C. 2901.05(B)(1).
{¶ 41} To warrant an instruction on self-defense, there must be evidence
-15-
presented that supports the conclusion that the defendant used force to defend himself
or herself. R.C. 2901.05(B)(1). Specifically, to establish self-defense, a defendant
must introduce evidence showing that: (1) he or she was not at fault in creating the violent
situation; (2) he or she had a bona fide belief that he or she was in imminent danger of
bodily harm; and (3) he or she did not violate any duty to retreat or avoid the danger.
State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.), citing State v. Thomas,
77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).
{¶ 42} “It is well established that a person cannot provoke a fight or voluntarily
enter combat and then claim self-defense.” State v. James, 2d Dist. Montgomery No.
28892, 2021-Ohio-1112, ¶ 21, citing State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-
19, 2020-Ohio-3681, ¶ 39. Moreover, a defendant must have a bona fide belief that the
use of force was the only means of escape. James at ¶ 21. “Part of this entails a
showing that the defendant used ‘only that force that [was] reasonably necessary to repel
the attack.’ ” Wallace-Lee at ¶ 42, citing State v. Bundy, 2012-Ohio-3924, 974 N.E.2d
139, ¶ 55 (4th Dist.). If the force used was so disproportionate that it shows a purpose
to injure, self-defense is unavailable. Id. at ¶ 43, quoting State v. Macklin, 8th Dist.
Cuyahoga No. 94482, 2011-Ohio-87, ¶ 27.
{¶ 43} Generally, a person has a duty to retreat, if possible, before using lethal
force. State v. Willford, 49 Ohio St.3d 247, 250, 551 N.E.2d 1279 (1990); State v. Dale,
2d Dist. Champaign No. 2012-CA-20, 2013-Ohio-2229, ¶ 15. The exception, known as
the Castle Doctrine, applies if a confrontation happens in a person’s home, in which case
there is no duty to retreat. R.C. 2901.09(B); James at ¶ 22.
-16-
{¶ 44} We review a trial court’s denial of a requested jury instruction for “an abuse
of discretion under the facts and circumstances of the case.” State v. Taylor, 2d Dist.
Montgomery No. 28668, 2020-Ohio-6854, ¶ 10, quoting State v. Wolons, 44 Ohio St.3d
64, 68, 541 N.E.2d 443 (1989); State v. Blair, 2d Dist. Montgomery No. 28904, 2021-
Ohio-3370, ¶ 10.
{¶ 45} The trial court found that Lovett was at fault in creating the situation, that he
used deadly force, and that he violated his duty to retreat, and we find no abuse of
discretion in these determinations. First, we agree that Lovett did not establish the first
element of self-defense, i.e., that he was not at fault in creating the violent situation. Prior
to the altercation, Webb and Bieker were in Webb’s vehicle; they had pulled away from
the gas pump and were facing Valley Street, preparing to leave the gas station. There
is no indication that Webb and Bieker were aware of Lovett’s presence, and Webb
testified that he did not notice Lovett. Lovett initiated the encounter by exiting his vehicle,
walking “aggressively” to Webb’s car, throwing open the driver’s door, and engaging with
Webb, both physically and verbally. Depoyster heard Lovett yelling at Webb, and Lovett
did not deny it. The surveillance video from the Valero shows Lovett initiating the
altercation.
{¶ 46} In addition, Lovett did not establish that his use of a gun was his only means
of escape and that he did not violate his duty to retreat. At several points before he
retrieved his gun from his car, Lovett could have de-escalated the situation, reentered his
car, and left the gas station. Most notably, after Bieker punched Lovett, knocking him
down, nothing prevented Lovett from getting into his car and leaving while Bieker was
-17-
backing away from him and Webb was still in his own vehicle. Lovett testified that he
feared for himself and his girlfriend once Webb and Bieker started chasing him around
his car, but he had prolonged the encounter himself by that point.
{¶ 47} Upon review of the evidence presented at trial, the trial court’s denial of
Lovett’s request for a jury instruction on self-defense was not an abuse of discretion.
Lovett’s second assignment of error is overruled.
IV. Conclusion
{¶ 48} The trial court’s judgment will be affirmed.
.............
WELBAUM, J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Kristin L. Arnold
Hon. Timothy N. O’Connell