DocketNumber: Case No. 01 JE 18.
Judges: VUKOVICH, P.J.
Filed Date: 3/26/2002
Status: Non-Precedential
Modified Date: 4/18/2021
Upon arriving at Davis' house, Frank went in to "confront" Davis. Frank approached Davis shaking his finger at him and saying, "Well you're a big man in that Superman shirt." In response to those actions, Davis punched Frank in the eye and held him down on the couch. The police arrived and Davis was charged with two counts of assault in violation of Toronto ordinance 537.03 and one count of disorderly conduct in violation of Toronto ordinance 509.09.
The case proceeded to a bench trial. The court found Davis guilty of one count of assault and one count of disorderly conduct. Davis was sentenced to thirty days in jail, fifteen days were suspended if he complied with requirements that the trial court set forth in its judgment entry. This timely appeal followed.
Davis' sole assignment of error contends:
"THE TRIAL COURT FAILED TO APPLY THE PROPER BASIC STANDARDS OF SELF DEFENSE IN DETERMINING A SIMPLE ASSAULT CHARGE."
Davis argues that the evidence produced during trial is sufficient to prove that he was acting in self-defense when he hit Frank. Davis claims that the trial judge improperly concluded that the defense of self-defense was inapplicable to the facts of his case.
Self-defense is an affirmative defense in Ohio. State v. Jackson
(1986),
A person asserting self-defense must show the following three elements: (1) that he/she was not at fault in creating the situation giving rise to the affray; (2) that he/she had a bona fide belief that he/she was in imminent danger of death or great bodily harm and that his/her only means of escape from such danger was in the use of such force; and (3) that he/she did not violate any duty to retreat or avoid the danger. State v. Robbins (1979),
Davis failed to prove the second element of self-defense. In order to prove the second element of self-defense, Davis had to show that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from the danger was to use force.Robbins,
Before we discuss the reasonableness of Davis' actions, it must be noted that there is an appreciable age and size difference between Frank and Davis. Frank is a fifty-seven year old man, while Davis is a thirty-seven year old man. The record reflects that Davis is 5'11, 200 pounds. While, the record does not reflect Frank's actual height or weight, the court stated that Frank is appreciably smaller than Davis. (6/28/01 J.E.). A court can consider these factors in considering if Frank's actions were reasonable under the circumstances.
Davis' actions were not reasonable under the circumstances. Davis states he felt threatened by Frank's actions that night. Frank arrived at Davis' house around midnight. When Frank entered Davis' house, Frank was pointing his finger at Davis and commenting on how Davis thought he was a big man in a Superman shirt. However, these actions do not rise to the level of a good faith belief of great and immediate danger of serious physical injury. Frank's arrival at Davis' house at midnight was not a surprise to Davis. Davis knew Frank was coming over, because Davis knew Brandi had called Frank. Furthermore, even though Frank was pointing his finger at Davis, he was not waiving his fists in Davis' face. Frank's hand was not even balled into a fist, nor was Frank even touching Davis. Frank's action of pointing his finger at Davis and making a comment could possibly be seen as a threat. However, it has been recognized that mere verbal harassment does not constitute provocation entitling a defendant to defend himself. Bucyrus v. Fawley (1988),
For the above stated reasons, insufficient evidence was presented to sustain a self-defense argument. The trial court appropriately concluded that the defense of self-defense was not applicable in this case. Therefore, the judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.