In re J.S. , 2024 Ohio 1764 ( 2024 )

[Cite as In re J.S., 

2024-Ohio-1764

.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.S.                                      :      APPEAL NOS.     C-230482
C-230483
:                      C-230484
C-230485
:                      C-230486
TRIAL NOS.      22-3473-01Z
22-3473-03Z
:                      22-3473-04Z
22-3473-05Z
:                      22-3473-06Z
:
O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are:            Affirmed in C-230482; Appeals Dismissed in C-
230483, C-230484, C-230485, and C-230486
Date of Judgment Entry on Appeal: May 8, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Law Office of Arica L. Underwood and Arica L. Underwood for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1}    In these consolidated appeals, defendant-appellant J.S. challenges his
delinquency adjudication for acts that would constitute felonious assault if committed
by an adult. In three assignments of error, he argues that the law and the record show
that he shot the victim in self-defense. But because using a firearm in response to an
unarmed attack constitutes disproportionate force, and because J.S. continued
shooting while his assailant fled from the scene, the trial court’s finding that the state
rebutted his self-defense claim is not against the manifest weight of the evidence. We
overrule his three assignments of error and affirm his delinquency adjudication in the
appeal numbered C-230482.
{¶2}    J.S. does not challenge his other delinquency adjudications, so we
dismiss the appeals numbered C-230483, C-230484, C-230485, and C-230486.
I. Facts and Procedure
{¶3}    One night in November 2022, J.S., T.B., and S.H. were driven by T.B.’s
grandmother to buy marijuana. With T.B. in the front passenger seat and J.S. in the
back, the three teenage boys were improvising rap lyrics. Based on a possible
misunderstanding, T.B. became offended and took several swings at J.S. When his
grandmother stopped at a red light, T.B. got out of the car, ran to J.S.’s door, opened
it, and attempted to pull J.S. out. In response, J.S. fired multiple gunshots at T.B.,
striking him three times.
{¶4}    In five juvenile complaints, the state alleged that J.S. was delinquent for
acts that, if committed by an adult, would constitute felonious assault with firearm
specifications, using a weapon while intoxicated, carrying a concealed weapon,
possessing a defaced firearm, and receiving stolen property with an accompanying
firearm specification.
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OHIO FIRST DISTRICT COURT OF APPEALS
Adjudication hearing
{¶5}    T.B. testified that he is 6’1” tall and weighs 265 pounds. He testified that
his grandmother drove J.S., S.H., and him “to go get weed.” They “were on the way
back” when T.B. thought that he heard an errant comment from J.S. about T.B.’s sister.
According to T.B., he punched J.S. “one time” while in the car. T.B. ran around the
outside of the car and opened J.S.’s door. T.B. recalled that J.S. said, “[C]ome on let’s
go we can do it right here.” Unbeknownst to T.B., J.S. had a gun with him in the car.
But T.B. did know that J.S. had recently acquired bullets for a gun because T.B.’s
grandmother purchased them a few days before the shooting.
{¶6}    T.B. estimated that J.S. fired his weapon somewhere between five and
ten times. All told, T.B. sustained gunshot wounds in his right arm, left arm, and
abdomen. T.B. testified that J.S. “was shooting me while I was running.” T.B. believed
that he “got hit in my backside while I was running.” T.B. fled “down the opposite side
of the road” until his grandmother caught up to him and took him to a hospital.
{¶7}    S.H. described sitting next to J.S. in the back seat when the altercation
occurred. According to S.H., T.B. punched J.S. more than once, though later he
testified that T.B. “tried to hit [J.S.] in the face, but I don’t know if it like connected,
but he kept trying to hit him.” S.H. recalled that T.B. opened J.S.’s door and was “still
like hitting [J.S.], trying to get him out, and that’s when he pulled out the gun” and
shot T.B. S.H. could not recall how many shots were fired or if J.S. pursued T.B.
{¶8}    Several officers testified at the adjudication hearing. Relevant here,
officers described interviews with T.B. and J.S. at the police station. The state played
footage of their interview with J.S., who told the officers that he was recovering from
T.B.’s punch and “couldn’t do nothing else,” so he leaned back and “BOOM, BOOM.”
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OHIO FIRST DISTRICT COURT OF APPEALS
J.S. explained to the officers that T.B. started running “and I just kept shooting him, I
don’t know why, I just didn’t stop until the gun stopped.”
{¶9}   One officer explained, with the help of photographs in the evidence, that
T.B.’s shirt had three bullet holes, with one bullet hole on the lower back of the shirt.
Another officer testified that investigating officers found seven shell casings that were
confined to “generally the same areas.”
{¶10} In his defense, J.S. testified that T.B. landed several punches while in
the car. According to J.S., T.B. “hopped out the car and was running. I’m scared, I don’t
know what’s going on. He’s angry. He’s just furious. He’s running to the car, opened
up the door and tries to grab me, and I leaned back, and I shot.” J.S. explained that he
had seen T.B. this angry in the past and knew from his facial expression that T.B. “was
heated,” and in this state he “just don’t care, he just do whatever.” He felt a need to
protect himself “because I seen [sic] him do things.” So, J.S. closed his eyes and fired
the gun. J.S. denied chasing after T.B. and could not recall whether he emptied the
magazine of the gun. During cross-examination, J.S. acknowledged that he had taken
ecstasy earlier in the day and “was coming down” when he shot T.B.
The magistrate and juvenile court rejected J.S.’s self-defense claim
{¶11} The magistrate found that J.S. caused physical harm to T.B. with the use
of a deadly weapon and adjudicated J.S. delinquent. Relevant here, the magistrate
found that J.S.’s “undisputed shooting of the victim multiple times (striking the victim
in 3 different places upon his body) while youth was under the influence of drugs, did
not establish a valid self-defense and was not a justifiable response to the situation.”
{¶12} J.S. filed objections to the magistrate’s decision and the juvenile court
held a hearing on his objections. J.S. argued that “the law says that if you’re in a car,
of course, there’s a presumption that it’s self-defense,” and the state failed to rebut
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OHIO FIRST DISTRICT COURT OF APPEALS
that presumption. For its part, the state argued that J.S. was at fault and lacked a bona
fide belief that he was in imminent danger.
{¶13} The juvenile court denied J.S.’s objection to the felonious-assault
adjudication. It recited the burden-shifting framework for self-defense claims under
R.C. 2901.05(B), its standard of review, and the elements of a self-defense claim. The
juvenile court found that the state “disproved the second element” and therefore
successfully rebutted J.S.’s claim of self-defense. Specifically, the juvenile court found
that “the testimony showed J.S. continued shooting at T.B. as T.B. was running” and
“J.S. repeatedly stated that he did not think that T.B. had a firearm” during the fight.
Based on those findings, “a greater degree of force was used than objectively or
subjectively necessary under all the circumstances.” Rather, “the level of force used by
J.S. in shooting T.B. was disproportionate to the perceived threat.” Because “the state
overcame the presumption of self-defense,” the juvenile court found that “J.S. is liable
for the offense of felonious assault.”
{¶14} J.S. appealed his felonious-assault adjudication, raising three
assignments of error. He filed separate notices of appeal for his delinquency
adjudications for using a weapon while intoxicated, carrying a concealed weapon,
possessing a defaced firearm, and receiving stolen property. But he makes no
arguments related to those delinquency adjudications, so we dismiss the appeals
numbered C-230483, C-230484, C-230485, and C-230486.
II. Law and Analysis
{¶15} In three assignments of error, J.S. challenges the juvenile court’s finding
that the state rebutted his self-defense claim under R.C. 2901.05(B). First, he argues
that the juvenile court misapplied the self-defense statute and applied what he
describes as “an improper standard for self-defense.” Second, he argues that the
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OHIO FIRST DISTRICT COURT OF APPEALS
juvenile court erred when it determined that he used more force than necessary and
was not at risk of great bodily harm. Finally, he argues that his adjudication is against
the manifest weight of the evidence because the juvenile court’s “decision is a serious
miscarriage of justice.”
{¶16} “We review de novo whether the trial court applied the proper legal
standard” when it considered J.S.’s self-defense claim. State v. Williams, 1st Dist.
Hamilton No. C-190380, 

2020-Ohio-5245

, ¶ 5. Because J.S. made an initial showing
of self-defense, the burden of persuasion shifted to the state to “prove beyond a
reasonable doubt that the defendant did not use the force in self-defense or defense of
another.” State v. Smith, 1st Dist. Hamilton No. C-190507, 

2020-Ohio-4976

, ¶ 49,
citing R.C. 2901.05(B)(1). When the burden shifts to the state, it must “disprove at
least one of the elements of self-defense.” State v. Wilson, 1st Dist. Hamilton No. C-
210535, 

2022-Ohio-3801

, ¶ 10.
{¶17} The juvenile court found that the state satisfied its burden of persuasion
and successfully rebutted J.S.’s self-defense claim. We review whether the state met
its burden of persuasion under a manifest-weight-of-the-evidence standard. In re J.P.,
1st Dist. Hamilton Nos. C-220647 and C-220648, 

2023-Ohio-4816

, ¶ 16. To determine
whether the juvenile court’s finding is contrary to the manifest weight of the evidence,
we review “ ‘ “ ‘the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses and determine whether, in resolving conflicts
in the evidence, the [juvenile court] clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.’ ” ’ ” Id. at ¶ 17, quoting State v. Bailey, 1st Dist. Hamilton No. C-140129,

2015-Ohio-2997

, ¶ 59, quoting State v. Thompkins, 

78 Ohio St.3d 380

, 387, 

678 N.E.2d 541

 (1997), quoting State v. Martin, 

20 Ohio App.3d 172

, 175, 

485 N.E.2d 717

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OHIO FIRST DISTRICT COURT OF APPEALS
(1st Dist.1983).
{¶18} The law allows a person to use deadly force in self-defense when: (1) the
defendant was not at fault in creating the circumstances that caused the altercation;
(2) the defendant had a reasonable basis to believe, and honestly believed—even if
mistaken, that he was in imminent danger of death or great bodily harm and could not
escape without using such force; and (3) the defendant did not violate a duty to retreat.
Smith, 1st Dist. Hamilton No. C-190507, 

2020-Ohio-4976

, at ¶ 48, citing State v.
Barnes, 

94 Ohio St.3d 21

, 24, 

759 N.E.2d 1240

 (2002). At issue is the second element
of J.S.’s self-defense claim.
{¶19} J.S. first argues that the juvenile court ignored the fact that the
magistrate employed the wrong standard in its review of the magistrate’s decision. The
magistrate failed to identify the elements of a self-defense claim and Ohio’s burden-
shifting framework for analyzing a self-defense claim. Instead, the magistrate simply
found that J.S. “did not establish a valid self-defense and [his conduct] was not a
justifiable response to the situation.”
{¶20} But the juvenile court conducted an independent analysis of the facts
and law. Its decision departs from the magistrate’s finding that J.S. failed to establish
a valid self-defense claim. The juvenile court explained that the second element has an
“implicit requirement that the use of force was in good faith, which requires that the
degree of force was warranted under the circumstances and proportionate to the
perceived threat.” See State v. Hare, 11th Dist. Ashtabula No. 2022-A-0048, 2023-
Ohio-1623, ¶ 22; see also State v. Johnson, 8th Dist. Cuyahoga No. 110673, 2022-
Ohio-2577, ¶ 15. The juvenile court found that J.S.’s force was unnecessary and
disproportionate, as the evidence “showed J.S. continued shooting at T.B. as T.B. was
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OHIO FIRST DISTRICT COURT OF APPEALS
running” and that “J.S. fired multiple shots, hitting T.B. multiple times, even though
he did not believe T.B. was armed.”
{¶21} Nevertheless, J.S. challenges the juvenile court’s analysis of his self-
defense claim. While he claims that the juvenile court “used an improper standard for
self-defense,” he fails to identify where the juvenile court erred in its legal discussion
and analysis. The juvenile court’s explanation of the second element of a self-defense
claim is consistent with the law in the First District and across Ohio.
{¶22} “[T]he second element of self-defense is a combined subjective and
objective test.” State v. Thomas, 

77 Ohio St.3d 323

, 330, 

673 N.E.2d 1339

 (1997). A
defendant must have a reasonable belief that “he was in immediate danger of death or
great bodily harm.” State v. Mitchell, 

2023-Ohio-2604

, 

222 N.E.3d 156

, ¶ 24 (1st
Dist.), citing Smith, 1st Dist. Hamilton No. C-190507, 

2020-Ohio-4976

, at ¶ 56. To use
lethal force, “ ‘ “the perceived threat to the accused must be of death or great bodily
harm.” ’ ” Id. at ¶ 25, quoting State v. Sims, 8th Dist. Cuyahoga No. 85608, 2005-Ohio-
5846, ¶ 16, quoting State v. Dietz, 8th Dist. Cuyahoga No. 81823, 

2003-Ohio-3249

,
¶ 10. Further, “the defendant must have an honest belief that [he] sat in such danger.”
Wilson, 1st Dist. Hamilton No. C-210535, 

2022-Ohio-3801

, at ¶ 13. To assess that
belief, the juvenile court was required to consider the totality of the circumstances to
determine whether J.S.’s actions were warranted under the circumstances. In re J.P.,
1st Dist. Hamilton Nos. C-220647 and C-220648, 

2023-Ohio-4816

, at ¶ 22, quoting In
re B.M., 1st Dist. Hamilton No. C-170103, 

2018-Ohio-1733

, ¶ 12.
{¶23} It is well established that when a person uses deadly force in self-
defense, that force must be reasonably proportionate to the threat. State v. Terry, 1st
Dist. Hamilton No. C-220379, 

2023-Ohio-2074

, ¶ 15; see State v. Williford, 

49 Ohio St.3d 247

, 249, 

551 N.E.2d 1279

 (1990) (“The defendant is privileged to use that force
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OHIO FIRST DISTRICT COURT OF APPEALS
which is reasonably necessary to repel the attack.”). Indeed, “within the second
element of self-defense is a requirement that the defendant use no more force than is
reasonably necessary to repel the attack.” In re J.P. at ¶ 25.
{¶24} J.S. also argues that his belief in imminent danger was objectively
reasonable and that his use of force was proportionate to that perceived danger,
because T.B. is larger than J.S. and punched J.S. several times. J.S. appears to argue
that, because “the act of delivering multiple punches, in succession, to another’s head
may rise to the level of deadly force,” it was objectively reasonable to believe that
multiple punches from T.B. would result in death or great bodily harm.
{¶25} We have held that self-defense law distinguishes only between deadly
force and nondeadly force, not between weapons used for defense. State v. Miller, 

149 Ohio App.3d 782

, 

2002-Ohio-5812

, 

778 N.E.2d 1103

, ¶ 6 (1st Dist.). Moreover, if a
person justifiably uses deadly force in self-defense, the choice of weapon is largely
irrelevant. 

Id.

 And we have reversed convictions where the defendant used deadly
force against an unarmed assailant. See Bumpus, 1st Dist. Hamilton No. C-020776,

2003-Ohio-4307

, at ¶ 11 (the undisputed facts showed that the victim, a member of
the Air Force who was two years older than the defendant and outweighed the
defendant by 45 pounds, was “grabbing [Bumpus]’s throat, choking him, and all the
while pummeling his head.”).
{¶26} But in this case, there was conflicting testimony about how many times
T.B. punched J.S. T.B. testified that he hit J.S. once, S.H. equivocated about whether
T.B. hit J.S., and J.S. testified that T.B. “was punching me.” The juvenile court found
that J.S. knew that T.B. was unarmed and shot at T.B. while he was running away.
These findings are consistent with J.S.’s statements to the police. And “ ‘[w]hen
evidence is susceptible to more than one construction, a reviewing court must give it
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OHIO FIRST DISTRICT COURT OF APPEALS
the interpretation that is consistent with the judgment.’ ” State v. Jordan, 1st Dist.
Hamilton No. C-210603, 

2022-Ohio-2566

, ¶ 60, quoting In re J.C., 1st Dist. Hamilton
No. C-180493, 

2019-Ohio-4027

, ¶ 20.
{¶27} Moreover, in recent years we have “rejected a manifest-weight challenge
where the defendant stabbed an unarmed assailant who was strangling the
defendant.” In re J.P., 1st Dist. Hamilton Nos. C-220647 and C-220648, 2023-Ohio-
4816, at ¶ 25, citing Jordan at ¶ 60. And in Jordan we reasoned that the defendant’s
use of deadly force was disproportionate and “more force than was necessary when
[the defendant and victim] were engaged in a fist fight or tussle.” Jordan at ¶ 60. Other
courts have held that a conviction is not against the manifest weight of the evidence,
and “a defendant’s use of force was unjustified[,] where individuals were engaged in
what was ‘essentially a fist fight,’ but the defendant then shot one of those individuals.”
State v. Knowlton, 11th Dist. Ashtabula No. 2023-A-0013, 

2023-Ohio-3759

, ¶ 26
(collecting cases). The altercation in this case is closer to the “fist fight or tussle” in
Jordan than the “pummeling” in Bumpus.
{¶28} Still more, J.S. cannot overcome the juvenile court’s finding that he
continued shooting as T.B. ran away. In these circumstances, the caselaw is clear that
“any threat of imminent danger abated once [the assailant] began to flee.” State v.
Mitchell, 6th Dist. Lucas No. L-22-1166, 

2023-Ohio-3543

, ¶ 47; see State v. Collins,
10th Dist. Franklin No. 19AP-373, 

2020-Ohio-3126

, ¶ 42 (collecting cases).
{¶29} Following our reviewing the record, weighing the evidence, and
considering the witnesses’ credibility, we hold that this is not one of those rare cases
in which the lower court clearly lost its way and created such a manifest miscarriage
of justice that J.S.’s adjudication must be reversed. We overrule J.S.’s three
assignments of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶30} We overrule the three assignments of error and affirm the juvenile
court’s judgment in the appeal numbered C-230482. We dismiss the appeals
numbered C-230483, C-230484, C-230485, and C-230486.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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