State v. Stevenson

[Cite as State v. Stevenson, 2018-Ohio-5140.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-512
v. : (C.P.C. No. 16CR-1095)
Shante L. Stevenson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 20, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee. Argued: Valerie Swanson.
On brief: Yeura Venters, Public Defender, and Ian J. Jones,
for appellant. Argued: John W. Keeling.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Shante L. Stevenson, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas pursuant to a jury
verdict finding him guilty of having weapons while under disability, in violation of R.C.
2923.13, and murder, in violation of R.C. 2903.02, with the accompanying firearm
specification. The trial court also found Stevenson guilty of the repeat violent offender
("RVO") specification. For the following reasons, we affirm.
No. 17AP-512 2
I. Factual and Procedural Background
{¶ 2} On February 26, 2016, a Franklin County Grand Jury indicted Stevenson with
two counts of murder in violation of R.C. 2903.02, unspecified felonies, and one count of
having weapons while under disability in violation of R.C. 2923.13, a felony of the third
degree. The murder counts had two specifications attached to them: a three-year firearm
specification, pursuant to R.C. 2941.145(A) and a RVO specification, pursuant to R.C.
2941.149(A). The charges arose out of the shooting death of Marty Blair on January 30,
2016. Stevenson entered a not guilty plea and proceeded to a jury trial.
{¶ 3} At the trial, the state elicited testimony from Garret White and Christopher
Lofton as to the events leading up to the shooting. On January 30, 2016, White and Lofton
were watching sports on television. They decided they wanted to smoke some marijuana
and unsuccessfully tried to reach their regular "weedman," Lavonn Stillwell. White then
called Stevenson. Stevenson indicated he knew where to get some marijuana, and White
and Lofton went to pick up Stevenson. The three ultimately ended up at a corner store on
the east side of Columbus. Lofton and Stevenson exited the vehicle while White stayed in
the driver's seat of the car. Neither White nor Lofton could describe the man with whom
Stevenson talked. When Lofton and Stevenson got back into the car, Stevenson indicated
that White should follow the car pulling out of the parking lot.
{¶ 4} The car eventually turned into a driveway off East Mound Street. White did
a U-turn and parked on the street next to the house. Stevenson exited the vehicle and
followed a man into the residence. According to White and Lofton, they remained in the
vehicle and listened to music. Stevenson returned a couple of minutes later and told White
to drive away. When asked about the marijuana, Stevenson told them to "F*** the weed."
Lofton stated that Stevenson was acting urgent, and White described it as "loud." White
testified he was going to complain but then noticed that Stevenson was holding a gun. White
dropped Stevenson off, and then he and Lofton returned to White's residence.
{¶ 5} White and Lofton watched more television and then the news came on. They
saw a story about an incident on the eastside of Columbus. White realized that was where
they had been. White testified he told his boss the next day what happened. His boss urged
him to talk with the police and eventually drove White to the police station. White arranged
for the police to talk with Lofton and Stillwell.
No. 17AP-512 3
{¶ 6} Stillwell stated he had met Stevenson through White. He testified Stevenson
called him late at night and asked him if he wanted to buy a 9mm gun. There was some
discussion of the gun being "hot." Stillwell stated that he later talked with White and
learned what happened. He said that he also urged White to go to the police.
{¶ 7} The state also called Blair's live-in girlfriend, Regina Reid. Reid testified that
she and Blair had dinner at home on January 30, 2016. After their meal, Blair left to go to
the store to check the lottery numbers. She stated she was in the upstairs bathroom when
she heard a car pull up. Reid indicated she heard Blair's keys and the door open and close.
Then she heard a bang. She called for Blair and immediately went downstairs. Reid
testified that as she entered the kitchen she saw Blair's feet coming from behind the island.
Reid then noticed a man standing by the backdoor. He looked at her and ran out of the
backdoor. Reid identified Stevenson as the person in her kitchen.
{¶ 8} Officer Raines responded to the 911 call. He stated he and his partner entered
through the front door and went into the living room where they encountered Reid. They
proceeded into the kitchen and saw Blair lying in a large pool of blood with a revolver on
the ground near his head. There was no sign of a struggle.
{¶ 9} Officer Bair from the crime scene search unit testified that he took the crime
scene photos that were admitted into evidence. He stated that the revolver on the kitchen
floor had all five of its rounds so it was determined that the gun had not been fired. A 9mm
casing was located on the stove top along the west wall of the kitchen, and a bullet was
recovered from the north wall of the kitchen.
{¶ 10} A deputy coroner testified about the autopsy report. He stated that the cause
of death was a perforating gunshot wound to the head. The bullet entered the left side of
the face between the cheek and ear. It traveled through the nasal pharynx area and exited
the right ear. The coroner explained that when a gun is fired, flame, dirt, and gunpowder
are emitted along with the bullet. If the muzzle of the gun is in close contact with the skin,
it can cause an abrasion and the flame will sear the skin. If the gun is a couple of inches
away, soot or dirt will settle on the skin. Gunpowder will cause little pinpoint abrasions
called stippling if the gun is fired within 18 inches (on average) of the skin. In this case, the
deputy coroner testified that there were no abrasions, searing, soot, or stippling on the skin
near the entry wound. He stated that the gun was therefore fired at an indeterminate range.
No. 17AP-512 4
He described it as a classic, noncontact entrance wound. The coroner further testified that
there were no wounds to Blair's hands but there was a small red discoloration on the right
forearm. There were abrasions three to four inches from the top of Blair's head on the left
side. The coroner indicated that these are consistent with someone striking his head while
falling forward without an attempt to break the fall.
{¶ 11} Stevenson testified on his own behalf. His testimony is consistent with that
of White and Lofton with a few exceptions. He stated that when he agreed to get some
marijuana for White, White told him to bring his gun. According to Stevenson, he showed
the gun to White and Lofton when he got into the car and both of them handled it.
Stevenson identified Blair as the man at the corner store who told Stevenson to follow him.
When they got to Blair's house, White cocked the gun and gave it to Stevenson. Stevenson
put the gun in his front pants pocket and exited the vehicle. Stevenson said that Lofton also
exited the car but Blair indicated that only Stevenson should come. Therefore, Lofton got
back in the vehicle.
{¶ 12} Stevenson said that when he entered the kitchen through the backdoor he
had the money in his hand. Blair ordered White to give him the money but White refused
stating that he wanted to see what he was buying. According to Stevenson, Blair then
attempted to grab the money from his hand. At the same time, Blair reached for his hip
area and pulled out a gun. Stevenson grabbed Blair's right arm with his left hand. They
struggled and went from the doorway into the corner of the kitchen by the sink. Stevenson
was able to free the money from Blair's grasp and put it into his back pocket. He then
reached into his front pocket for his gun. He testified that he told Blair to get back but that
Blair grabbed the front of his shirt and tried to pull him forward. Stevenson then fired the
gun. He testified that he did not know if Blair had been shot but that Blair's head came
forward onto Stevenson's chest. Stevenson did a side step and Blair fell to the ground on
his face. He denied that he saw anyone on his way out of the house.
{¶ 13} When he got back to the vehicle he asked White and Lofton if they heard
anything. When they indicated that they had not, Stevenson testified that he told them
what happened. He stated that he feared for his life and did not believe that he had any
other choice than to shoot Blair. After Stevenson testified, the jury heard closing arguments
and was given instructions by the trial court.
No. 17AP-512 5
{¶ 14} The jury found Stevenson guilty of all three counts and the firearm
specifications. The trial court issued a decision finding him guilty of the RVO specifications.
The trial court merged the murder counts and sentenced Stevenson 15 years to life on
Count 1 – murder with an additional consecutive 3 years for the firearm specification and
an additional consecutive 6 years for the RVO specification. It also imposed a sentence of
30 months on the having weapons under disability count to be served concurrently.
II. The Appeal
{¶ 15} Stevenson appeals his convictions and assigns the following assignments of
error:
[I.] THE TRIAL COURT ERRED WHEN IT DENIED THE
DEFENDANT'S REQUEST TO INSTRUCT THE JURY ON THE
LESSER OFFENSE OF VOLUNTARY MANSLAUGHTER.
[II.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR
TRIAL, THE RIGHT TO PRESENT A DEFENSE, AND DUE
PROCESS OF LAW WHEN THE TRIAL COURT GAVE CONFUSING
AND MISLEADING INSTRUCTIONS ON THE LAW OF SELF-
DEFENSE AND ALSO ERRONEOUSLY INSTRUCTED THE JURY
THAT THE DEFENDANT WAS NOT ENTITLED TO USE SELF-
DEFENSE IF HE HAD REASONABLE GROUNDS TO BELIEVE
THAT THE ASSAILANT DID NOT INTEND TO KILL HIM.
III. Jury Instructions
{¶ 16} In both assignments of error, Stevenson challenges the trial court's jury
instructions. "[A] trial court must fully and completely give the jury all instructions which
are relevant and necessary for the jury to weigh the evidence and discharge its duty as the
fact finder." State v. Comen, 50 Ohio St. 3d 206 (1990), paragraph two of the syllabus;
Columbus v. Aleshire, 187 Ohio App. 3d 660, 2010-Ohio-2773, ¶ 6 (10th Dist.). The trial
court has broad discretion in fashioning the jury instructions as long as it presents "a
correct, pertinent statement of the law that is appropriate to the facts." State v. White, 142
Ohio St. 3d 277, 2015-Ohio-492, ¶ 46. Crim.R. 30(A) provides in pertinent part:
At the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may file written
requests that the court instruct the jury on the law as set forth
in the requests. * * * The court shall inform counsel of its
proposed action on the requests prior to counsel's arguments
to the jury and shall give the jury complete instructions after
the arguments are completed. * * *
No. 17AP-512 6
On appeal, a party may not assign as error the giving or the
failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the
matter objected to and the grounds of the objection.
Opportunity shall be given to make the objection out of the
hearing of the jury.
{¶ 17} The record reveals that prior to the state resting its case, the trial court
provided counsel with a draft of its jury instructions. After denying defense counsel's
Crim.R. 29 motion for acquittal, the trial court discussed its proposed jury instructions with
counsel. At that time, defense counsel indicated that they looked good.
{¶ 18} The next morning, however, defense counsel informed the court that
Stevenson wanted a jury instruction on the lesser-included offense of voluntary
manslaughter. The trial court discussed with counsel where to insert that instruction into
the charge and to which count it may pertain. The prosecutor expressed some concern with
including an instruction on voluntary manslaughter. Defense counsel also conceded that
"this argument about this charge may be premature due to the fact that it depends on what
comes out in my client's testimony." (Tr. Vol. IV at 11.)
{¶ 19} After Stevenson testified, the trial court excused the jury and addressed the
jury instructions. It indicated that the testimony supported a self-defense instruction, but
a lesser-included-offense instruction was not warranted. Both counsel agreed with that
assessment. The trial court finalized the jury instructions and stated for the record that
both sides signed off on it. The trial court charged the jury and asked if either counsel had
anything else to put on the record. Defense counsel renewed the Crim.R. 29 motion for
acquittal but did not object to the jury instructions.
{¶ 20} Pursuant to Crim.R. 30(A), a party is required to object to a jury instruction
after the instruction has been given but before the jury retires in order to raise the issue on
appeal. State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 164. Failure to object
to the jury instructions waives all but plain error on appeal. Id. at ¶ 165; State v. Long, 53
Ohio St. 2d 91 (1978). Plain error is an obvious error that affects a substantial right. Crim.R.
52(B); State v. Yarbrough, 95 Ohio St. 3d 227, 244 (2002). "Notice of plain error under
Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice. Long at paragraph three of the syllabus.
No. 17AP-512 7
An error in a jury instruction does not constitute a plain error unless, but for the error, the
outcome of the trial clear would have been otherwise. Id. at paragraph two of the syllabus.
A. First Assignment – Voluntary Manslaughter Instruction
{¶ 21} In his first assignment of error, Stevenson contends that the trial court erred
when it denied his request to instruct the jury on the lesser-included offense of voluntary
manslaughter. He argues that the jury could have rejected his claim of self-defense but still
found that a conviction for voluntary manslaughter was appropriate because Blair
provoked him by pulling a gun and attempting to rob him.
{¶ 22} To begin with, Stevenson claims he requested a jury instruction on voluntary
manslaughter. We disagree. As discussed above, when the trial court and counsel went
over the jury instructions, defense counsel agreed that the request was premature until
Stevenson testified. Following his testimony, defense counsel did not request a jury
instruction on voluntary manslaughter. To the contrary, she agreed that the instruction
was not warranted. Thus, we will review this assignment of error under the plain error
standard.
{¶ 23} Voluntary manslaughter is considered an inferior degree of murder. State v.
Shane, 63 Ohio St. 3d 630, 632 (1992). The voluntary manslaughter statute provides "[n]o
person, while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force, shall knowingly cause the death of
another." R.C. 2903.03(A). Before a defendant is entitled to a jury instruction on voluntary
manslaughter, the trial judge must determine whether the defendant presented evidence of
reasonably sufficient provocation occasioned by the victim to warrant such an instruction.
Shane at paragraph one of syllabus.
{¶ 24} The provocation element consists of both an objective and subjective
component. State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, ¶ 283. For the
objective component, there must be evidence of provocation that was "sufficient to arouse
the passions of an ordinary person beyond the power of his or her control." Shane at 635.
The subjective factor requires that the defendant, in the case at issue, was actually under
the influence of sudden passion or in a sudden fit of rage. Id. at 634. The defendant on
No. 17AP-512 8
trial for murder must establish the elements of R.C. 2903.03(A) by a preponderance of the
evidence. State v. Rhodes, 63 Ohio St. 3d 613, 620 (1992).
{¶ 25} Here, there is no evidence in the record that Stevenson acted under a sudden
passion or fit of rage. During his testimony, Stevenson never stated that he was so provoked
or enraged by Blair that he could not control himself. Instead, he testified that he shot Blair
because he thought Blair was going to shoot him. He felt that he had no other choice and
feared for his life.
{¶ 26} Stevenson notes that sudden passion is not defined in the statute. He argues
that passion is a strong emotion or intense feeling and that a person can experience intense
feelings of hate, love, and fear. Stevenson relies on this court's previous decision in State v.
Roddy, 10th Dist. No. 81AP-499 (Nov. 17, 1981) as support for the proposition that the same
evidence used to prove a defendant's self-defense claim is also proof of serious provocation
by the victim reasonably sufficient to incite the defendant into using deadly force.
{¶ 27} This court has previously explained on at least two occasions why reliance on
Roddy is misplaced. See State v. Harris, 129 Ohio App. 3d 527 (10th Dist.1998); State v.
Caldwell, 10th Dist. No. 98AP-165 (Dec. 17, 1998). In Roddy, the defendant admitted to
killing the victim during a bar fight but argued that it was self-defense. The jury found the
defendant not guilty of murder, but found him guilty of voluntary manslaughter, rejecting
the defendant's claim of self-defense. On appeal, the defendant contended that his
conviction for voluntary manslaughter was against the manifest weight of the evidence and
contrary to law. We disagreed. At the time that Roddy was decided, voluntary
manslaughter was defined as knowingly causing the death of another while under extreme
emotional stress brought on by serious provocation reasonably sufficient to incite the use
of deadly force. Because the evidence established that the defendant was fearful of further
attack from the victim and also that the defendant shot the victim while the victim was
being restrained by another person, the jury's verdict was supported by the evidence.
{¶ 28} R.C. 2903.03(A), however, was amended in 1982 to limit the application of
the voluntary manslaughter statute. See Am.Sub.H.B. No. 103, 139 Ohio Laws, Part I, 1761.
Instead of extreme emotional distress, the current statute requires that the defendant be
under the influence of sudden passion or in a sudden fit of rage. After that amendment,
this court has held that "evidence supporting the privilege of self-defense, i.e., that the
No. 17AP-512 9
defendant feared for his own and other's personal safety, does not constitute sudden
passion or fit of rage as contemplated by the voluntary manslaughter statute." Harris at
535. The Supreme Court of Ohio has similarly held that "[f]ear alone is insufficient to
demonstrate the kind of emotional state necessary to constitute sudden passion or fit of
rage." State v. Mack, 82 Ohio St. 3d 198, 201 (1998); see also Thompson, 141 Ohio St. 3d
254, 2014-Ohio-4751, ¶ 157.
{¶ 29} Because Stevenson testified that he acted out of fear rather than rage or
passion, the evidence did not support a jury instruction for voluntary manslaughter.
Thus, we conclude that the trial court did not commit plain error when it did not instruct
the jury on voluntary manslaughter. We overrule the first assignment of error.
B. Second Assignment – Self-Defense Instruction
{¶ 30} In his second assignment of error, Stevenson contends that the trial court's
instruction on self-defense was erroneous, misleading, and confusing. He also claims that
it was so generalized and inappropriate that it did not reflect the specific facts of the case.
He specifically complains about the part of the self-defense instruction that provided that
he was not entitled to use self-defense if he had reasonable grounds to believe that the
assailant did not intend to kill him or cause him bodily harm and that the trial court failed
to define what it means to be at fault in creating the situation giving rise to the affray.
Stevenson also contends that the trial court should not have instructed the jury that he had
a duty to avoid danger as it had no application and relevance to the facts of this case. We
disagree.
{¶ 31} Stevenson did not object to the self-defense instruction nor did he offer any
alternative language that the trial court rejected. As a result, "[t]he failure to object to a
jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for
the error, the outcome of the trial clearly would have been otherwise." State v. Underwood,
3 Ohio St. 3d 12 (1983), syllabus.
{¶ 32} When reviewing a specific challenge to a jury instruction on appeal, the
instruction should not be judged in isolation, but within the context of the overall jury
charge. State v. Price, 60 Ohio St. 2d 136 (1979), paragraph four of the syllabus; Aleshire at
¶ 52. If the instructions, taken in their entirety, fairly and correctly state the law applicable
to the evidence presented at trial, reversible error will not be found merely on the possibility
No. 17AP-512 10
that the jury may have been misled. Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St. 427
(1922), paragraph six of the syllabus; Stonerock v. Miller Bros. Paving, Inc., 72 Ohio
App.3d 123, 134 (10th Dist.1991).
{¶ 33} The elements of self-defense differ depending on whether the defendant used
deadly or non-deadly force to defend himself. See State v. Palmer, 10th Dist. No. 12AP-460,
2013-Ohio-5970, ¶ 12. Deadly force is " 'any force that carries a substantial risk that it will
proximately result in the death of any person.' " Id. at ¶ 11, quoting R.C. 2901.01(A)(2).
When a defendant uses a weapon or instrument against the other party and claims self-
defense, a trial court usually provides a jury instruction on self-defense using deadly force.
Id. at ¶ 16. Here, it is undisputed that Stevenson used deadly force by means of a firearm
to kill Blair.
{¶ 34} To establish self-defense using deadly force, a defendant must prove by a
preponderance of the evidence: (1) he was not at fault in creating the situation giving rise
to the altercation; (2) he had a bona fide belief that he was in imminent danger of bodily
harm and his only means of escape from such danger was the use of force; and (3) he did
not violate any duty to retreat or avoid the danger. State v. Barnes, 94 Ohio St. 3d 21, 24
(2002), citing State v. Robbins, 58 Ohio St. 2d 74 (1979), paragraph two of the syllabus. The
elements of self-defense are cumulative. If a defendant fails to prove any one of the
elements by a preponderance of the evidence, he fails to demonstrate that he acted in self-
defense. See State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, ¶ 72, citing State v.
Jackson, 22 Ohio St. 3d 281, 284 (1986).
{¶ 35} The jury instruction in the instant case correctly explained this basic
standard. The trial court instructed:
Mr. Stevenson raises the affirmative defense of self-defense to
the murder charges. The burden of proving the affirmative
defense of self-defense is upon the defendant. He must
establish this defense by a preponderance of the evidence.
"Preponderance of the evidence" is the greater weight of the
evidence; that is, evidence that outweighs or overbalances in
your minds the evidence opposed to it.
A "preponderance" means evidence that is more probable,
more persuasive, or of greater probative value. It is, again, not
the number of witnesses who testify, but the quality of the
evidence that must be weighed.
No. 17AP-512 11
In determining whether self-defense has been proven by a
preponderance of the evidence, you should consider all the
evidence bearing upon the affirmative defense regardless of
who produced it. If the weight of the evidence is equally
balanced, then the defendant has failed to establish the
affirmative defense of self-defense.
If the defendant fails to establish the defense of self-defense,
the state still must prove to you beyond a reasonable doubt all
of the elements of each murder charge before you can convict
the defendant of either offense.
To establish self-defense, the defendant must prove by a
preponderance of the evidence the following: No. 1, the
defendant was not at fault in creating a situation giving rise to
the affray. No. 2, the defendant had an honest belief that he
was in imminent danger of death or great bodily harm, and this
his only means of escape from such danger was in the use of
such force. No. 3, Mr. Stevenson did not violate any duty to
retreat or avoid danger.
If the defendant had a reasonable and honest belief that he was
in imminent danger of death or great bodily harm and that the
only means to escape from such danger was by killing his
assailant, then he was justified even though he was mistaken as
to the existence of such danger.
In determining whether the defendant had reasonable grounds
for holding an honest belief that he was in imminent danger in
connection with the death of Mr. Blair, you must put yourself
in the position of Mr. Stevenson, with his characteristics, his
knowledge, or lack of knowledge, under the circumstances and
conditions that surrounded him at that time.
You must consider as well the testimony -- excuse me -- the
conduct of Marty Blair, and determine if his acts or words
caused the defendant to reasonably and honestly believe that
he was about to be killed or receive great bodily harm.
The law does not measure nicely the degree of force which may
be used to repel an assault. However, if a person who is
assaulted uses more force than reasonably appears to be
reasonably necessary under the circumstances, and if the force
used is so grossly disproportionate to his apparent danger as to
show revenge or an evil purpose to injury his assailant, then the
defense of self-defense is not available.
No. 17AP-512 12
The defendant must establish that the other party was the
aggressor, and that the defendant did not himself provoke and
cause the injury. Self-defense is not available to the person who
starts a fight unless, in good faith, he withdraws from the
contest and informs the other party of his withdrawal, or by
words and acts reasonably indicates that he has withdrawn and
is no longer participating in the fight.
A person is not in a position to claim self-defense if he saw
trouble and came armed with a dangerous weapon, provoked a
fight, or renewed a fight that had broken off, and did not
attempt to avoid danger or leave the scene of the trouble.
If, in the careful and proper use of his faculties, a person had
reasonable grounds to believe that an assailant was unable to
and does not intend to kill or do great bodily harm, then the
person, having notice of his adversary's position, loses the right
to use force in self-defense. If a person continues to fight
thereafter, he becomes the aggressor, and a subsequent injury
to another is unlawful and is not self-defense.
(Tr. Vol. IV at 123-126.)
{¶ 36} These jury instructions are substantially similar to those we reviewed in State
v. Ellis, 10th Dist. No. 11AP-939, 2012-Ohio-3586, ¶ 8. We held that the trial court's jury
instructions in Ellis "were precise portrayals of Ohio law on self-defense." Id. at ¶ 12.
Therefore, to the extent that Stevenson claims that these instructions are generally
erroneous, misleading, and confusing, we disagree. The self-defense instructions were a
correct statement of the law. Id.
1. At Fault
{¶ 37} Stevenson attempts to show that the self-defense instructions were faulty
because they did not define "at fault." He argues that the jurors could have concluded he
was at fault because he elected to engage in unlawful conduct (attempting to buy marijuana)
or because he carried a firearm. The "not at fault" requirement generally means that the
defendant must not have been the first aggressor in the incident. Robbins at 80-81; State
v. Turner, 171 Ohio App. 3d 82, 2007-Ohio-1346, ¶ 24 (2d Dist.); State v. New, 10th Dist.
No. 05AP-262, 2005-Ohio-6471, ¶ 9. A defendant is not precluded from using self-defense
simply because he was engaged in criminal conduct when he was attacked. Rather, the first
prong of a self-defense claim requires a defendant to show that he was not at fault in
No. 17AP-512 13
creating the situation, meaning that he had not engaged in wrongful conduct toward his
assailant that provoked the assailant to attack. State v. Gillespie, 172 Ohio App. 3d 304,
2007-Ohio-3439, ¶ 17 (2d Dist.). If a defendant's criminal conduct did not give rise to the
affray and he was not the first aggressor, the defendant will not be "at fault." State v. Turner,
171 Ohio App. 3d 82, 2007-Ohio-1346, ¶ 26 (2d Dist.).
{¶ 38} Although the trial court did not instruct the jury that it was immaterial that
Stevenson was involved in criminal conduct before the shooting occurred, this does not
amount to plain error. The trial court did instruct the jury that the "at fault" prong of a self-
defense claim was satisfied if the other person was the aggressor and the defendant did not
provoke the other party. If the jury believed Stevenson's testimony that Blair attempted to
rob him and pulled a gun on him, then the jury would have concluded that Stevenson was
not at fault in creating a situation giving rise to the affray.
2. Duty to Avoid Danger
{¶ 39} Stevenson also claimed that the trial court should not have instructed the jury
that he had to prove that he did not violate any duty to avoid the danger and that he did not
see trouble and come armed with a dangerous weapon. He argues that a person does not
forfeit the right to use self-defense if he elects to engage in certain activities, such as buying
marijuana, which may become dangerous.
{¶ 40} Stevenson cites no authority to support his claim that it is erroneous or
prejudicial error to instruct the jury that a defendant has a duty to avoid danger if he elects
to engage in a dangerous activity. The duty to avoid danger is one element of the black
letter law that must be satisfied to successfully utilize the affirmative defense of self-defense
in a case where a defendant used deadly force. Robbins at paragraph two of the syllabus.
When deadly force is used and the defendant is not in his own home, in order to prove self-
defense, the defendant must show that no means of retreat or avoidance was available and
that his only means of escape or avoidance was the deadly force he used. State v. Melchior,
56 Ohio St. 2d 15 (1978). We find that Stevenson's argument is without merit.
3. Reasonable Belief
{¶ 41} Stevenson next argues that the trial court improperly instructed the jury that
a person loses the right to act in self-defense if he had reasonable grounds to believe that
the assailant did not intend to kill him or do him great bodily harm. He argues that this
No. 17AP-512 14
statement does not correspond to the requirement that a person is justified in using deadly
force if he has a reasonable belief that he is in imminent danger of death or great bodily
harm. Stevenson contends that it placed a greater burden on him to establish he had no
reason to believe that Blair did not intend to cause him death or great bodily harm.
{¶ 42} The trial court's instruction accurately reflects that the second prong of a self-
defense claim is a combined subjective and objective test. State v. Thomas, 77 Ohio St. 3d
323, 330 (1997). Self-defense is justified "on the grounds of the bona fides of defendant's
belief, and reasonableness therefor, and whether, under the circumstances, he exercised a
careful and proper use of his own faculties." State v. Sheets, 115 Ohio St. 308, 310 (1926).
If a defendant does not believe that he is in imminent danger of death or great bodily harm,
he is not entitled to claim self-defense. We reject this argument.
4. Inference about Blair's Weapon
{¶ 43} Stevenson argues that it was unfair that the trial court instructed the jury that
they could infer that "the purpose to cause death may be inferred from the use of a weapon"
but failed to instruct the jury that they could infer that Blair intended to cause Stevenson
death or great bodily harm because Blair used a gun. Because the evidence showed that
Blair had a gun, Stevenson contends that this would be a fair comment by the trial court
and would have helped him to satisfy his burden in proving self-defense. We disagree.
{¶ 44} Stevenson fails to accurately portray the trial court's instruction on the
inference. The instruction was "[i]f a wound is inflicted with a deadly weapon in a manner
calculated to destroy life, the purpose to cause death may be inferred from the use of a
weapon." (Emphasis added.) (Tr. Vol. IV at 118.) There is no corresponding evidence that
Blair inflicted a wound on Stevenson with a deadly weapon. Furthermore, the trial court
did instruct the jury as part of the self-defense instruction that the jury must consider the
conduct of Blair in determining whether Stevenson had a reasonable and honest belief that
Stevenson was about to be killed or receive great bodily harm. We, therefore, find that the
trial court did not commit plain error when it did not provide an instruction about an
inference that could be made from Blair's possession of a gun.
{¶ 45} As Stevenson has failed to establish that the trial court committed plain error
in its instruction on self-defense, the second assignment of error is overruled.
No. 17AP-512 15
{¶ 46} For the foregoing reasons, Stevenson's assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.
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