State v. Belanger ( 2010 )


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  • [Cite as State v. Belanger, 
    190 Ohio App.3d 377
    , 
    2010-Ohio-5407
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    THE STATE OF OHIO,                                                  CASE NO. 1-09-65
    APPELLEE,
    v.
    BELANGER,                                                             OPINION
    APPELLANT.
    Appeal from Lima Municipal Court
    Trial Court No. 09 CRB02485
    Judgment Reversed and Cause Remanded
    Date of Decision: November 8, 2010
    APPEARANCES:
    David M. Geiger, for appellee.
    Clayton P. Osting, for appellant.
    WILLAMOWSKI, Presiding Judge.
    Case No. 1-09-65
    {¶ 1} Defendant-appellant, Philip T. Belanger, brings this appeal from the
    judgment of the Lima Municipal Court finding him guilty of domestic violence, in
    violation of R.C. 2919.25(A). For the reasons set forth below, the judgment is
    reversed.
    {¶ 2} On August 5, 2009, a complaint was filed in the trial court alleging
    that Belanger had committed domestic violence against his live-in girlfriend on
    August 4, 2009. Belanger entered a plea of not guilty to the complaint. A jury
    trial was held on October 29, 2009. The jury returned a verdict of guilty. On
    November 23, 2009, Belanger was sentenced to 180 days in jail with 150 days
    suspended, a $250 fine, and two years of community control. Belanger now
    appeals from his conviction and raises the following assignments of error.
    First Assignment of Error
    The trial court erred to the prejudice of [Belanger] by denying
    his motion for a jury instruction on self defense which is an
    affirmative defense to the crime charged. In addition, the failure of
    the trial court to give this proper charge denies [Belanger] federal
    and state due process.
    Second Assignment of Error
    The trial court erred to the prejudice of [Belanger] by denying
    his motion for a continuance.
    Third Assignment of Error
    The trial court erred to the prejudice of [Belanger] by denying
    him the right to present the evidence of witnesses as to his character,
    demeanor, disposition, etc.
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    Case No. 1-09-65
    {¶ 3} Belanger’s first assignment of error alleges that the trial court erred
    by not instructing the jury on the affirmative defense of self-defense.            “In
    charging the jury, the court must state to it all matters of law necessary for the
    information of the jury in giving its verdict.” R.C. 2945.11. Parties may request
    that the trial court instruct the jury on a particular matter.       Crim.R. 30(A).
    However, a trial court may omit any requested instructions that are not correct
    statements of the law and applicable to the case before it. State v. Scott (1986), 
    26 Ohio St.3d 92
    , 
    497 N.E.2d 55
    .
    A trial court is not required to instruct the jury on self-defense
    in every case where it is attempted to be presented. The defendant
    must first present sufficient evidence at trial to warrant such an
    instruction. In State v. Robinson (1976), 
    47 Ohio St.2d 103
    , 
    351 N.E.2d 88
    , the court stated * * *:
    “* * * In order to raise an affirmative defense, which is now
    statutorily defined as either ‘a defense expressly designated as
    affirmative’ or ‘a defense involving an excuse or justification
    peculiarly within the knowledge of the accused, on which he can
    fairly be required to adduce supporting evidence’ (R.C. Section
    2901.04[C]), evidence of a nature and quality sufficient to raise the
    issue must be introduced, from whatever source the evidence may
    come. The procedural steps to be taken by the trial court are well
    stated in State v. Millett [(1971 Me.), 
    273 A.2d 508
    ]:
    “‘* * * 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. * * * If the evidence adduced, so viewed, is
    legally insufficient to raise the issue, the trial court will have no
    occasion or obligation to instruct the jury on the elements essential
    -3-
    Case No. 1-09-65
    to a valid claim of self-defense, but rather will remove the issue of
    self-defense from jury consideration.’” (Emphasis added.)
    Bucyrus v. Fawley (1988), 
    50 Ohio App.3d 25
    , 26-27, 
    552 N.E.2d 676
    . The
    requested instruction for self-defense is as follows:
    SELF-DEFENSE. The defendant claims to have acted in self-
    defense. To establish that he/she was justified in using force not
    likely to cause death or great bodily harm, the defendant must prove
    by the greater weight of the evidence that
    (A) he/she was not at fault in creating the situation giving rise to
    (describe the event in which the use of non-deadly force occurred);
    and
    (B) he/she had reasonable grounds to believe and an honest belief,
    even if mistaken that he/she was in (imminent) (immediate) danger
    of bodily harm.
    4 Ohio Jury Instructions (2010), Section 421.21.
    {¶ 4} To establish a claim of self-defense, a defendant must show that (1)
    he was not at fault in creating the situation giving rise to the event, (2) he had a
    bona fide belief that he was in imminent danger of bodily harm, and (3) he did not
    violate any duty to retreat or avoid the danger. State v. Melchior (1978), 
    56 Ohio St.2d 15
    , 
    381 N.E.2d 195
    . See also State v. Thomas (1997), 
    77 Ohio St.3d 323
    ,
    
    673 N.E.2d 1339
    ; State v. Williford (1990), 
    49 Ohio St.3d 247
    , 
    551 N.E.2d 1279
    ;
    State v. Jackson (1986), 
    22 Ohio St.3d 281
    , 
    490 N.E.2d 893
    ; and State v. Robbins
    (1979), 
    58 Ohio St.2d 74
    , 
    388 N.E.2d 755
    . The degree of force one may use to
    defend oneself depends upon what is reasonably necessary to protect that
    individual from the imminent use of unlawful force. Akron v. Dokes (1986), 31
    -4-
    Case No. 1-09-
    65 Ohio App.3d 24
    , 
    507 N.E.2d 1158
    . In instances where less than deadly force is
    used, the defendant need only show a fear of bodily harm, not of death or great
    bodily harm. State v. Perez (1991), 
    72 Ohio App.3d 468
    , 
    594 N.E.2d 1041
    .
    “Since there is no duty to retreat in a case involving nondeadly force, the accused
    must simply satisfy the two remaining elements of a valid self-defense claim, to
    wit: he was not at fault in creating the situation, and he had a genuine belief that
    he was in imminent danger of bodily harm.” State v. Johnson, 11th Dist. No.
    2005-L-103, 
    2006-Ohio-2380
    , ¶21. Since self-defense is an affirmative defense,
    the defendant bears the burden of proving it by a preponderance of the evidence.
    Williford. A defendant has met his burden of production on the defense when he
    introduces sufficient evidence, which, if believed, would raise a question in the
    mind of a reasonable juror concerning the issue. Robbins. “The inquiry into
    whether a defendant has introduced sufficient evidence to raise an affirmative
    defense under R.C. 2901.05 is a question of law.” Johnson at ¶24. Thus, an
    appellate court uses a de novo standard of review on appeal. 
    Id.
    {¶ 5} In this case, the victim testified that the two were involved in a
    verbal dispute and that Belanger had grabbed her by the neck. She testified that
    Belanger then struck her on the left side of the face, causing her to fall and strike
    her right eye. Belanger denied these accusations. He admits that they were
    having an argument. He testified that the victim turned and struck him in his
    injured shoulder, causing him pain. He further testified that he pushed the victim
    -5-
    Case No. 1-09-65
    away, causing her to fall, because he did not want to be struck again. Belanger
    also provided an explanation about how the marks on the victim’s neck could
    have occurred. Since Belanger used less than deadly force, he had no duty to
    retreat and only needed to show that he was not the aggressor and that he feared
    further bodily harm.
    {¶ 6} In determining whether a jury instruction on an affirmative defense
    should be given, the court must view the evidence in a light most favorable to the
    defendant. The question of credibility is not to be considered. Belanger testified
    that the victim was the aggressor, i.e., that she struck him first, and that he was in
    fear of being struck again. Although the state argues that his testimony was not
    credible, that would be an issue for the jury to determine. Belanger met his
    burden of production when his testimony, if believed, would raise the question of
    self-defense in the mind of a reasonable juror. Thus, the first assignment of error
    is sustained.
    {¶ 7} Having found prejudicial error in the denial of a self-defense
    instruction to the jury, the second and third assignments of error are moot. Thus,
    they will not be addressed.
    {¶ 8} The judgment of the Lima Municipal Court is reversed, and the
    matter is remanded for further proceedings.
    Judgment reversed
    and cause remanded.
    -6-
    Case No. 1-09-65
    ROGERS, J., concurs.
    SHAW, J., dissents.
    __________________
    SHAW, Judge, dissenting.
    {¶ 9} I respectfully dissent from the majority decision to reverse this case
    based on the trial court’s failure to instruct the jury on self-defense. The majority
    correctly states that a trial court may omit any requested instructions that are not
    correct statements of the law and applicable to the case before it. State v. Scott
    (1986), 
    26 Ohio St.3d 92
    . Further, as noted by the majority, “‘[i]n order * * * to
    successfully raise an affirmative defense * * * evidence of a nature and quality
    sufficient to raise the issue must be introduced, from whatever source the
    evidence may come.’” State v. Melchior (1978), 
    56 Ohio St.2d 15
    , 20, quoting
    State v. Robinson (1976), 
    47 Ohio St.2d 103
    , 111-112, 
    351 N.E.2d 88
    . The court
    in Melchior also stated that “[e]vidence is sufficient where a reasonable doubt of
    guilt has arisen based upon a claim of self-defense. * * * If the evidence generates
    only a mere speculation or possible doubt, such evidence is insufficient to raise
    the affirmative defense, and submission of the issue to the jury will be
    unwarranted.” (Emphasis added.) Id. at 20.
    {¶ 10} At trial, Belanger requested an instruction on the affirmative
    defense of self-defense, which required him to show, inter alia, that he had a bona
    fide belief that he was in imminent danger of bodily harm. See Melchior, 56 Ohio
    -7-
    Case No. 1-09-65
    St.2d at 20-21. The majority found that Belanger testified that the victim hit him
    in his injured shoulder, causing him pain, during an argument the two were
    having. The majority then states that Belanger “testified that he pushed the victim
    away, causing her to fall, because he did not want to be struck again” and that he
    provided an explanation about how the marks on the victim’s neck could have
    occurred.    Thus, the majority concludes that Belanger met his burden of
    production to raise the question of self-defense, which would warrant such an
    instruction to the jury. I disagree.
    {¶ 11} Contrary to the majority’s view of the evidence, a review of the
    record reveals that the only testimony Belanger gave regarding a bona fide belief
    that he was in imminent danger of bodily harm was during his direct examination
    by defense counsel:
    Q: And did you, uh, were you concerned if she hit you a second time
    that you’d be injured?
    A: More than likely, but, you know.
    No question was asked and no testimony was given by Belanger that relayed that
    he did not want to be struck again, that he feared that he would be struck again, or
    in any other way that he had a bona fide belief that he was in imminent danger of
    bodily harm. The record is devoid of any evidence that the victim made any
    further movements towards Belanger or that he even had a belief that she was
    going to harm him again.         The question posed by defense counsel was a
    -8-
    Case No. 1-09-65
    hypothetical: “Were you concerned that if she hit you a second time you would be
    injured?” The question was not “were you concerned that she would hit you a
    second time?”
    {¶ 12} More importantly, Belanger never testified that he knowingly acted
    to defend himself and in fact, seemed to carefully avoid any implication of
    deliberate conduct on his part. On the contrary, Belanger’s testimony about what
    happened was more akin to a defense of accident, i.e., he seemed to emphasize
    that he did not “knowingly” cause or attempt to cause physical harm to anyone.
    {¶ 13} Specifically, Belanger testified that he was trying to explain to the
    victim, his live-in girlfriend, that he was concerned for her safety due to an
    incident that happened earlier that day and that someone might harm her because
    of her relationship to him. The argument became more heated, according to
    Belanger, because the victim repeatedly told him that she did not care. Belanger
    explained that he “was wanting to talk to her and then [he] got hit” by the victim
    in his right shoulder, which hurt because of a previous injury he had. Belanger
    further stated:
    It happened so quick, the only thing I can think of is that I pushed
    her like that and when she was in her stocking feet on a linoleum
    floor that’s when she fell, her feet had kicked mine out from me and
    we landed up on top of each other. All I could remember her saying
    is, “ow, my eye,” so I don’t know if she hit it on the counter, the
    drawer that was open or on the floor.
    ***
    -9-
    Case No. 1-09-65
    The fridge stopped me from falling and, then, I came back up, it just
    happened so quick. I pushed her, my hand may have gone up,
    caught her neck but she went down, her feet kicked my feet out and
    we both landed on the floor on top of each other.
    {¶ 14} Nothing in this testimony indicated that Belanger believed that he
    was knowingly defending himself from imminent bodily harm rather than merely
    reacting to the harm previously inflicted upon him and accidentally falling on the
    victim in some kind of mutual pushing incident. Thus, I do not find that Belanger
    presented sufficient evidence to create a reasonable doubt of guilt based upon any
    of the essential elements necessary for a claim of self-defense. At most, his
    testimony generated only a mere speculation or possible doubt. As previously
    noted, such evidence is insufficient to raise or establish this affirmative defense.
    {¶ 15} For all of these reasons, I would conclude that the trial court did not
    err in overruling Belanger’s request to submit this issue to the jury. Accordingly,
    I would affirm the judgment of the trial court.
    -10-