State v. Dearmond ( 2024 )

[Cite as State v. Dearmond, 2024-Ohio-393.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO, CASE NO. 8-22-41
PLAINTIFF-APPELLEE,
v.
DEVON L. DEARMOND, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 01 0002
Judgment Affirmed
Date of Decision: February 5, 2024
APPEARANCES:
Christopher R. Bucio for Appellant
Sarah J. Warren for Appellee
Case No. 8-22-41
MILLER, J.
{¶1} This appeal, having been placed on the accelerated calendar, is sua
sponte being assigned and considered on the regular calendar pursuant to Loc.R.
12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion
in lieu of a judgment entry.
{¶2} Defendant-appellant, Devon L. Dearmond (“Dearmond”), appeals the
judgment of sentence of the Logan County Court of Common Pleas. For the reasons
that follow, we affirm the judgment of the trial court.
Facts and Procedural History
{¶3} The case arises from an attempted drug transaction that resulted in
Dearmond stabbing two people, Joseph Fuerst (“Fuerst”) and Joshua Gamble
(“Gamble”). On December 10, 2019, Fuerst and Josue Aldrete (“Aldrete”) arranged
to meet at a park in West Liberty, Ohio for Aldrete to purchase a quarter pound of
marijuana from Fuerst for a sum of approximately $880. (Sept. 27-28, 2021 Tr. at
127, 190, 234-235, 394). At the appointed time, Gamble drove Fuerst to the meeting
location where they waited for Aldrete to arrive. (Id. at 277). Shortly thereafter,
Aldrete arrived at the meeting location with three friends also in Aldrete’s vehicle—
Dearmond, Damiyr Dyson (“Dyson”) and Brandon Fowler (“Fowler”). (Id. at 398).
Aldrete and Dearmond exited Aldrete’s vehicle and, at Fuerst’s direction, got into
the backseat of Gamble’s vehicle to complete the transaction. (Id. at 395-396).
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{¶4} Shortly thereafter, Fuerst, Gamble, Aldrete, and Dearmond got into a
disagreement about the logistics of how the transaction would proceed with both
sides claiming that the other side was trying to shortchange the other. Fuerst and
Gamble claimed that Dearmond refused to tender the money for the transaction, and
Aldrete and Dearmond contended that Gamble, who was holding the baggie of
marijuana, refused to let go of the bag. (Id. at 148-149). The argument escalated
and, at some point, Aldrete summoned Dyson and Fowler, who were waiting in
Aldrete’s car, to Gamble’s vehicle, where the argument was taking place. (Id. at
129, 148, 223, 225, 247-248). Dyson and Fowler approached the vehicle and
attempted to deescalate the situation by encouraging Aldrete and Dearmond to
abandon the transaction, but Aldrete and Dearmond chose not to heed their advice.
(Id. at 148, 247-248).
{¶5} The disagreement eventually turned physical. At trial, the participants
offered different, and sometimes conflicting, accounts of the events that transpired.
According to Fuerst and Gamble, after it became clear the transaction was not going
as planned, they ordered Dearmond and Aldrete to exit the vehicle so they could go
their separate ways. (Id. at 128). Then, Dearmond brandished a pocket knife and
held it beside Fuerst’s headrest. (Id. at 128-129). Fuerst alleged Dearmond
threatened that if they did not give him the marijuana, he would stab Fuerst. (Id.).
Then, Aldrete “[made] a jump” toward Gamble in the driver’s seat and attempted to
grab the baggie of marijuana out of Gamble’s hoodie pocket. (Id. at 128-129). At
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that point, the baggie ripped and marijuana dispersed throughout the vehicle. (Id.).
Fuerst testified that he attempted to push Aldrete off of Gamble, and, was then
stabbed repeatedly by Dearmond. (Id. at 129). Fuerst stated that, Dearmond was
“swing[ing] the knife” and stabbing them while he and Gamble implored Dearmond
and Aldrete to leave the vehicle. (Id.). Fuerst testified that while Dearmond was
stabbing him, Gamble put the vehicle in drive and began driving away. (Id.).
Gamble testified that he began driving and swerving in an effort to force Dearmond
and Aldrete out of the vehicle. (Id. at 172). Eventually, Aldrete and Dearmond
exited the moving vehicle, and Gamble and Fuerst drove to the hospital where they
received medical attention for their injuries. (Id. at 172, 200-201).
{¶6} At trial, Dearmond took the stand and testified that an argument broke
out and that, at some point, Fowler and Dyson were summoned to the vehicle to try
to intervene. (Sept. 27-28, 2021 Tr. at 403). Dearmond admitted Fowler and Dyson
encouraged Dearmond and Aldrete to “calm down” and “just forget the whole deal.”
(Id.). Dearmond acknowledged that, at that point, he recognized the transaction was
not working out. (Id. at 403-404). Nevertheless, Dearmond stated that he continued
to try to get the transaction to go through because “we didn’t have that much weed
and we wanted to go home and smoke [weed].” (Id. at 404).
{¶7} Dearmond admitted he brought the knife to the drug transaction that he
used to stab Fuerst and Gamble. (Id. at 402-403). However, he denied he retrieved
the knife from his back pocket until the car began to speed off. (Id. at 405-406).
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Dearmond testified that, when the vehicle was in motion, he used the knife to defend
himself and force Fuerst and Gamble to let him out of the vehicle. (Id. at 407).
{¶8} On January 14, 2020, Dearmond was indicted on four counts: Count
One of attempted murder in violation of R.C. 2923.02(A), (D) and R.C. 2929.02(B),
a first-degree felony; Count Two of aggravated robbery in violation of R.C.
2911.01(A), (C), a first-degree felony; and Counts Three and Four of felonious
assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), against Fuerst and Gamble
respectively, second-degree felonies. Dearmond appeared for arraignment on
January 17, 2020, where he entered pleas of not guilty. That same day, Dearmond’s
retained trial counsel filed a notice of appearance.
{¶9} On July 9, 2020, the State filed a motion requesting the trial court
dismiss the case. That same day, the trial court granted the State’s motion and
dismissed the case without prejudice.
{¶10} On January 12, 2021, the Logan County Grand Jury indicted
Dearmond on five counts. Counts One through Four were consistent with the initial
January 14, 2020 indictment. Count Five charged Dearmond with tampering with
evidence in violation of R.C. 2921.12(A)(1), (B), a third-degree felony. At the
arraignment held on January 19, 2021, Dearmond entered not-guilty pleas to the
charges in the indictment. Additionally, the trial court appointed Dearmond’s
previously retained trial counsel to represent Dearmond. On March 10, 2021,
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Dearmond’s appointed trial counsel filed an amended notice of appearance of
counsel which indicated that he had been retained as attorney of record.
{¶11} On September 17, 2021, the State filed a motion to dismiss Count Five
of the indictment, which the trial court granted. A jury trial was held on September
27-28, 2021. At the conclusion of the trial, the jury returned verdicts of not guilty
on Counts One and Two (attempted murder and aggravated robbery, respectively)
and guilty on Counts Three and Four (felonious assault). The trial court accepted
the verdicts and found Dearmond guilty of Counts Three and Four and ordered a
presentence investigation.
{¶12} At the sentencing hearing held on November 2, 2021, the trial court
sentenced Dearmond to an indefinite term of six to nine years in prison on Count
Three and a definite term of six years in prison on Count Four to be served
concurrently. That same day, the trial court filed its judgment entry of sentence.
On November 4, 2021, the trial court filed a nunc pro tunc entry indicating that
because the victims’ request for restitution had not yet been addressed, the judgment
entry filed on November 2, 2021 was not a final appealable order.
{¶13} Nonetheless, on November 30, 2021, Dearmond filed a notice of
appeal. On August 8, 2022, we dismissed Dearmond’s appeal due to the lack of a
final appealable order. State v. Dearmond, 3d Dist. Logan No. 8-21-43, 2022-Ohio-
2324, ¶ 9-10. On December 5, 2022, the State filed a motion to withdraw its request
for restitution. That same day, the trial court granted the State’s motion. On
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December 8, 2022, the trial court filed a final appealable order disposing of the issue
of restitution.
{¶14} Dearmond filed his notice of appeal on December 19, 2022. He raises
two assignments of error for our review.
First Assignment of Error
Ineffective Assistance of Counsel.
{¶15} In his first assignment of error, Dearmond argues he was denied the
effective assistance of trial counsel. Specifically, Dearmond argues that his trial
counsel, who was initially appointed by the trial court, was ineffective and behaved
in an unethical manner by demanding private payment from Dearmond and his
family in order to ensure trial counsel would work diligently on the case.
Relevant Law
{¶16} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d
303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052
(1984). In order to show counsel’s conduct was deficient or unreasonable, the
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defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic decisions, even if unsuccessful, do not generally constitute
ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989).
{¶17} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
Analysis
{¶18} In support of his position that his trial counsel was ineffective,
Dearmond argues that his trial counsel demanded money from Dearmond and his
family to ensure diligent representation. Specifically, Dearmond argues that his trial
counsel, who was initially appointed by the trial court, informed Dearmond and his
father that “if they wanted him to work hard on the case, and wanted better work
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out of him, then he would need to be retained as private counsel for the case, with a
retainer of $10,000.00.” (Appellant’s Brief at 9). Dearmond claims that, following
the dismissal of the case and subsequent refiling, Dearmond’s trial counsel, who
was once again appointed by the trial court, demanded an additional $10,000.00 to
“work harder on the case” and “have [Dearmond] acquitted of all charges.” (Id. at
9-10). In support of his assertions, Dearmond references two “affidavits” 1 signed
by Dearmond and his father, Eric Dearmond, attached to Dearmond’s appellate brief
as Exhibit B and Exhibit C, respectively.
{¶19} “If an ineffective assistance of counsel claim concerns facts that are
outside the record, we cannot consider the claim on direct appeal because we can
only consider matters contained in the record.” State v. Hall, 10th Dist. Franklin
No. 04AP-1242, 2005-Ohio-5162, ¶ 60. When considering an argument raised on
appeal, a reviewing court is limited to considering only the matters found in the
record. Volodkevich v. Volodkevich, 48 Ohio App.3d 313, 314 (1989). Dearmond’s
arguments relating to the ineffective assistance of counsel rely on: (1) evidentiary
materials outside the record on appeal, i.e., several documents attached to his
appellate brief, and (2) statements made in Dearmond’s appellate brief. In State v.
Hooks, the Supreme Court of Ohio stated that “a reviewing court cannot add matter
1
Although Dearmond’s appellate counsel references Exhibit B and Exhibit C as “affidavits,” we note the
documents do not appear to have been made under oath and do not conform with the requirements of an
affidavit. See R.C. 2319.02 (“An affidavit is a written declaration under oath * * *.”); State v. Quinn, 2d
Dist. Clark No. 2016-CA-64, 2017-Ohio-8107, ¶ 37.
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to the record before it that was not a part of the trial court’s proceedings.” State v.
Hooks, 92 Ohio St.3d 83 (2001). App.R. 9 governs the record on appeal and
provides in pertinent part: “The original papers and exhibits thereto filed in the trial
court, the transcript of proceedings, if any, including exhibits, and a certified copy
of the docket and journal entries prepared by the clerk of the trial court shall
constitute the record on appeal in all cases.” App.R. 9(A)(1). “Evidence not made
part of the record that is attached to an appellate brief cannot be considered by a
reviewing court.” State v. Zhovner, 3d Dist. Auglaize No. 2-12-13, 2013-Ohio-749,
¶ 11, citing Deitz v. Deitz, 3d Dist. Union No. 14-11-06, 2012-Ohio-130, ¶ 8.
Additionally, the record cannot be enlarged by factual assertions in an appellate
brief. State v. Morrow, 5th Dist. Muskingum No. CT2021-0053, 2022-Ohio-1089,
¶ 19. Accordingly, we disregard the documents and allegations in Dearmond’s brief
that were not part of the trial court record. Thus, the affidavits of Dearmond and his
father, which form the basis of Dearmond’s argument on appeal, cannot be
considered in our review of Dearmond’s assignment of error. See State v. Hirschy,
3d Dist. Allen No. CR2021 0439, 2023-Ohio-3204, ¶ 21. We likewise will
disregard the factual assertions made in Dearmond’s brief that are not supported by
the record or that contain documents which were not first presented for the trial
court’s consideration and are not properly part of the record. Accordingly, we are
unable to consider the merits of Dearmond’s argument because it relies entirely on
material outside the scope of our review. See State v. Barnett, 7th Dist. Jefferson
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No. 06-JE-23, 2008-Ohio-1546, ¶ 130 (“When an allegation of ineffective
assistance of counsel is based upon material that is not part of the record, the merits
of the argument cannot be addressed.”).
{¶20} Dearmond’s first assignment of error is overruled.
Second Assignment of Error
Abuse of discretion.
{¶21} In his second assignment of error, Dearmond argues the trial court
erred by not giving the jury a self-defense instruction. For the reasons that follow,
we disagree.
Standard of Review and Relevant Law
{¶22} “Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its
duty as the factfinder.” State v. Shine-Johnson, 10th Dist. Franklin No. 17AP-194,
2018-Ohio-3347, ¶ 25. “Requested jury instructions should ordinarily be given if
they are correct statements of law, if they are applicable to the facts in the case, and
if reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. Yet, a trial court may
refuse to issue a requested jury instruction if “‘the evidence adduced at trial is legally
insufficient’ to support it.” State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108
and 09AP-1109, 2010-Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d
254, 259 (3d Dist.1993). “[T]he trial judge is in the best position to gauge the
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evidence before the jury and is provided the discretion to determine whether the
evidence adduced at trial was sufficient to require an instruction.” State v. Fulmer,
117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72. “To be justified, a jury instruction must
be based on an actual issue in the case as demonstrated by the evidence.” State v.
Cunningham, 2d Dist. Montgomery No. 29122, 2023-Ohio-157, ¶ 13. Accordingly,
“[a] court reviewing a trial court’s refusal to submit to the jury a requested
instruction must determine whether the trial court’s decision constituted ‘an abuse
of discretion under the facts and circumstances of the case.’” Juntunen at ¶ 13,
quoting State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion is
more than a mere error in judgment; it suggests that a decision is unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Under R.C. 2901.05(A) and (B)(1),
(A) Every person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof for
all elements of the offense is upon the prosecution. The burden of
going forward with the evidence of an affirmative defense, and the
burden of proof, by a preponderance of the evidence, for an
affirmative defense other than self-defense, defense of another, or
defense of the accused’s residence presented as described in division
(B)(1) of this section, is upon the accused.
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person’s residence. If, 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, defense of another, or
defense of that person’s residence, the prosecution must prove beyond
a reasonable doubt that the accused person did not use the force in
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self-defense, defense of another, or defense of that person’s residence,
as the case may be.
R.C. 2901.05(A), (B)(1). Under R.C. 2901.05(A) and (B)(1), a defendant claiming
self-defense has the burden of production—that is, the burden of producing
evidence that “tends to support” his use of force in defending himself. State v.
Davidson-Dixon, 8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶ 18; State v.
Sturgill, 12th Dist. Clermont No. CA2020-03-018, 2020-Ohio-6665, ¶ 17; State v.
Williams, 1st Dist. Hamilton No. C-190380, 2020-Ohio-5245, ¶ 7-8; State v.
Petway, 11th Dist. Lake No. 2019-L-124, 2020-Ohio-3848, ¶ 55. If the defendant
produces evidence that “tends to support” that he used force in self-defense, “[t]he
burden then shifts to the state under its burden of persuasion to prove beyond a
reasonable doubt that the defendant did not use the force in self-defense.”
Davidson-Dixon at ¶ 18. Thus, “the burden of proof for the affirmative defense of
self-defense has shifted to the state,” but the “burden of production for * * * self-
defense[] remains with the defendant.” (Emphasis sic.) State v. Messenger, 10th
Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶ 44. See State v. Messenger, 171
Ohio St.3d 227, 2022-Ohio-4562, ¶ 25 (“a defendant charged with an offense
involving the use of force has the burden of producing legally sufficient evidence
that the defendant’s use of force was in self defense”).
{¶23} “The 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
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not a heavy one and that it might even be satisfied through the state’s own evidence.”
Messenger, 2022-Ohio-4562, at ¶ 22, quoting R.C. 2901.05(B)(1).
{¶24} To determine whether a defendant satisfied his burden of production,
the court must consider whether the evidence, from whatever source it may come,
“tends to support” the defendant’s use of force in self-defense if it “serve[s],
contribute[s], or conduce[s] in some degree or way’ to support that he used the force
in self-defense * * *.” Petway at ¶ 66, quoting TEND, Black’s Law Dictionary
(11th Ed.2019); State v. Tolle, 4th Dist. Adams No. 19CA1095, 2020-Ohio-935, ¶
24. Stated differently, “evidence ‘tends to support’ that a defendant used force in
self-defense, and a defendant is entitled to a jury instruction on the defense of self-
defense under R.C. 2901.05 * * *, where the evidence in the record is sufficient to
raise a question of reasonable doubt of guilt, based on a claim of self-defense, in the
mind of a reasonable juror.” State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-
Ohio-3722, ¶ 49. “In deciding whether to give a self-defense instruction, the trial
court must view the evidence in favor of the defendant, and the question of
credibility is not to be considered.” Davidson-Dixon at ¶ 20. Even so, “‘[i]f the
evidence generates only a mere speculation or possible doubt, such evidence is
insufficient to raise the * * * defense, and submission of the issue to the jury will be
unwarranted.” Tolle at ¶ 23, quoting State v. Melchior, 56 Ohio St.2d 15, 20 (1978).
“A defendant’s bare assertion that he acted in self-defense will be insufficient.”
State v. Palmer, 12th Dist. Clermont No. CA2021-07-035, 2022-Ohio-2181, ¶ 18.
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“Rather, the assertions must be coupled with supporting evidence from whatever
source and of a nature and quality sufficient to raise reasonable doubt as to guilt.”
Id. “If the evidence adduced at trial is legally insufficient to raise the issue of self-
defense, the court is not obligated to instruct the jury regarding this claim and has
discretion to completely remove it from the jury’s consideration.” State v. Barnd,
85 Ohio App.3d 254, 259 (3d Dist.1993).
{¶25} “The elements of a self-defense claim differ based on whether the
defendant employed deadly or non-deadly force to defend against their perceived
assailant.” State v. Crowe, 3d Dist. Allen No. 1-19-12, 2019-Ohio-3986, ¶ 15.
There is no doubt that Dearmond employed deadly force by using a knife to stab
Fuerst and Gamble. State v. Horne, 9th Dist. Summit No. 24348, 2009-Ohio-841,
¶ 10, quoting R.C. 2923.11(A) (“A knife constitutes a ‘deadly weapon’ if possessed,
carried, or used as a weapon.”); R.C. 2901.01(A)(2) (defining “deadly force” as
“any force that carries a substantial risk that it will proximately result in the death
of any person”).
{¶26} “The elements for self-defense by use of deadly force are as follow:
‘(1) the defendant was not at fault in creating the violent situation, (2) the defendant
had a bona fide belief that he or she was in danger of death or great bodily harm and
that the only way to escape was the use of force, and (3) the defendant did not violate
any duty to retreat.’” State v. Smith, 3d Dist. Union No. 14-22-16, 2023-Ohio-3015,
¶ 32, quoting State v. Barker, 2d Dist. Montgomery No. 29227, 2022-Ohio-3756, ¶
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22. “‘All three of these elements must be present to establish self-defense.’” State
v. Zink, 9th Dist. Lorain No. 21CA011813, 2023-Ohio-1250, ¶ 9, quoting State v.
Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 12, citing State v. Barnes,
94 Ohio St.3d 21, 24 (2002). “Furthermore, a person is privileged only to ‘use as
much force as is reasonably necessary to repel [an] attack.’” Crowe at ¶ 16, quoting
Shine-Johnson, 2018-Ohio-3347, at ¶ 61. “The defense of self-defense is not
available if the defendant used more force than was reasonably necessary and if the
force used was greatly disproportionate to the apparent danger.” State v. Wright,
6th Dist. Lucas No. L-16-1053, 2017-Ohio-1225, ¶ 28.
Legal Analysis
{¶27} After reviewing the record, we find that the evidence adduced at trial
was legally insufficient to raise the issue of self-defense, and, accordingly, the trial
court was not obligated to instruct the jury on self-defense. Specifically, Dearmond
failed to establish that the evidence adduced at trial tends to support his use of force.
{¶28} With respect to the first element, Dearmond created the violent
situation by bringing the knife to the marijuana transaction and continuing the
escalating argument despite Fowler and Dyson’s requests for their friends to
abandon the transaction. Nonetheless, by his own admission, Dearmond continued
to attempt to push the transaction to go through because his supply of marijuana was
running low and he wanted to smoke marijuana with his friends. See State v.
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Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-Ohio-43, ¶ 38 (“a person cannot
provoke a fight or voluntarily enter combat and then claim self-defense”).
{¶29} Furthermore, with respect to the second element, Dearmond did not
establish that the use of the knife was his only means of escape. Most notably,
Dearmond recognized that, at the time Fowler and Dyson were summoned to the
vehicle, he could have abandoned the transaction and left. Yet, he consciously
chose to continue the argument that was “not going anywhere” because he “didn’t
have that much weed and [he] wanted to go home and smoke.” (Sept. 27-28, 2021
Tr. at 404).
{¶30} Additionally, Dearmond did not establish that the knife was necessary
for his escape from the vehicle. Notably, Aldrete, who was not armed, exited the
vehicle without the use of a knife. Furthermore, Gamble and Fuerst did not brandish
any weapons. Moreover, Dearmond failed to establish that his use of the knife aided
in his escape from the vehicle. Conversely, Dearmond testified that, while he
stabbed Fuerst and Gamble, the car continued to speed up, and the vehicle was
traveling at approximately 50 to 60 miles per hour when he exited the vehicle. See
State v. James, 2d Dist. Montgomery No. 28892, 2021-Ohio-1112, ¶ 24.
{¶31} Moreover, Dearmond did not demonstrate his use of deadly force was
reasonably necessary and proportionate to the apparent danger. Rather, Dearmond
brought a knife to a drug transaction where the other parties were unarmed.
Furthermore, Dearmond has failed to demonstrate that repeatedly stabbing Fuerst
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and Gamble was proportionate to the apparent danger he was in, even as the vehicle
drove away. See James at ¶ 25 (“At each step along the way, James could have (but
chose not to) avoided the danger * * * instead, she brought a knife to a fist fight and
seriously injured Houston.”); State v. Barker, 2d Dist. Montgomery No. 29227,
2022-Ohio-3756, ¶ 71 (“If the force used was so disproportionate that it shows a
purpose to injure, self-defense is unavailable.”).
{¶32} Accordingly, because there was insufficient evidence to support
Dearmond’s requested jury instruction on self-defense, the trial court did not abuse
its discretion in failing to give it. Dearmond’s second assignment of error is
overruled.
Conclusion
{¶33} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Logan County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI, P.J. and WALDICK, J., concur.
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