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Date: 04-12-2019

Case Style:

State of Ohio v. Nicholas D. Kean

Case Number: 17AP-427

Judge: Susan Brown


Plaintiff's Attorney: Ron O'Brien, Prosecuting Attorney, and Valerie Swanson

Defendant's Attorney: Jeffery A. Linn, II


This is an appeal by defendant-appellant, Nicholas D. Kean, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of murder. {¶ 2} On January 5, 2016, appellant was indicted on two counts of murder in violation of R.C. 2903.02(A) (purposely causing the death of another) and R.C. 2903.02(B) (felony murder), respectively. The indictment arose out of the stabbing death of John Barnett. The matter came for trial before a jury beginning May 1, 2017. {¶ 3} The first witness for the state was Hunter Peterson, a close friend of Barnett. On December 23, 2015, at approximately 2:00 p.m., Barnett phoned Peterson to ask if he
No. 17AP-427 2

wanted to "hang out." (Tr. Vol. II at 182.) Barnett drove to Peterson's residence to pick him up. (Tr. Vol. II at 182.) Peterson lived in the "Hilltop" area of Columbus. (Tr. Vol. II at 182.) Barnett arrived with another individual named "Jose." (Tr. Vol. II at 183.) Peterson entered the backseat of the car; the occupants were smoking marijuana. {¶ 4} Peterson was aware that Barnett and appellant recently "had some conflict with each other." (Tr. Vol. II at 185-86.) Peterson had observed "a status on Facebook," indicating that "they were arguing." (Tr. Vol. II at 187.) Peterson testified that appellant was "staying with [Barnett] once and * * * that [appellant] stole some money from his dresser * * * and they just were arguing about that or something." (Tr. Vol. II at 187.) {¶ 5} While driving, Barnett received a call from one of his parents "saying that [appellant] was over at his house and that * * * he drove in the yard or something like that. And he was kind of harassing, * * * just showed up to his house for no reason." (Tr. Vol. II at 188.) Barnett hung up and started "driving towards his house." (Tr. Vol. II at 189.) Barnett was traveling "on Briggs [Road] towards Demorest" Road when they observed appellant driving in the opposite direction. Barnett "yells out the window, 'Pull over.' " (Tr. Vol. II at 189.) {¶ 6} Barnett turned his vehicle around and drove "toward Binns" Boulevard. (Tr. Vol. II at 189.) Appellant's vehicle, a silver four-door Jeep, was "pulled over [and] parked on a side road." (Tr. Vol. II at 189-90.) Barnett pulled up and parked his vehicle. {¶ 7} Barnett and appellant both exited their vehicles. Appellant and Barnett then "started throwing punches at each other." (Tr. Vol. II at 197.) Peterson further testified: "And they are in the middle of the street and [appellant] swings towards him." (Tr. Vol. II at 198.) Peterson observed appellant "lunge with his right arm." (Tr. Vol. II at 198.) Peterson then heard Barnett "say, 'He just stabbed me.' " (Tr. Vol. II at 198.) Peterson stated that Barnett was stabbed within 20 seconds of exiting the vehicle. Appellant then "turns around and just gets in his car." (Tr. Vol. II at 199-200.) Appellant "left in a hurry, just drove off quickly." (Tr. Vol. II at 200.) {¶ 8} Peterson exited Barnett's vehicle and called 911. Barnett was on the ground "gasping for breath like he is having a hard time breathing." (Tr. Vol. II at 200.) Barnett was "not saying anything at all. He is just laying there." (Tr. Vol. II at 200.) While
No. 17AP-427 3

Peterson was talking to the dispatcher, Jose "says, 'I gotta go.' " (Tr. Vol. II at 202.) Jose drove off in Barnett's vehicle. {¶ 9} Peterson testified that appellant was not threatened with serious physical harm at the time of the incident. According to Peterson, appellant "got out of his car voluntarily." (Tr. Vol. II at 232.) Peterson did not observe Barnett with any type of weapon. Police detectives subsequently prepared a photo array, and Peterson identified appellant from the array as the individual who stabbed Barnett. {¶ 10} Jose Martinez, age 25, testified that he and Barnett were good friends. On December 23, 2015, Barnett called Martinez and inquired about getting together. At approximately 11:00 a.m., Barnett drove to the residence of Martinez and they began smoking marijuana. Martinez overheard Barnett arguing on the phone with someone; Martinez heard Barnett "get threatened and him going back and forth with the guy, saying it's no problem to meet up." (Tr. Vol. II at 239.) Martinez told his fiancée they were going to pick up Peterson "and just ride around and smoke." (Tr. Vol. II at 240.) {¶ 11} Martinez and Barnett left in Barnett's two-door Honda. They picked up Peterson and, as they were driving, Barnett "gets a random phone call and text messages, just threatening phone calls and messages." (Tr. Vol. II at 242.) Martinez heard "something about: I am at your house, I almost had to beat up your neighbor, something, just him going back and forth. [Barnett's] like, 'Leave my dad alone. My dad is older.' " (Tr. Vol. II at 242.) Barnett hung up the phone and "sped up." (Tr. Vol. II at 243.) {¶ 12} They subsequently observed appellant's vehicle heading in their direction on Binns Boulevard. Appellant "stopped for a second" and "looked at us" and then "took off." (Tr. Vol. II at 244.) Barnett pulled into the parking lot of the "Briggs Stop Mart." (Tr. Vol. II at 246.) Barnett exited the car and looked around. He returned to the vehicle and they traveled "down Briggs Road." (Tr. Vol. II at 246.) They then observed appellant's vehicle heading toward them. {¶ 13} Martinez testified that "[b]oth vehicles stopped and [Barnett] got out of the vehicle." (Tr. Vol. II at 248.) An individual named "Coty" was with appellant at the time. (Tr. Vol. II at 252.) Appellant and Barnett "met up in the middle of the road and got to fighting. They were both throwing fists at each other." (Tr. Vol. II at 248.) Martinez testified that he observed appellant "duck down, go in his pocket with his right hand."
No. 17AP-427 4

(Tr. Vol. II at 250.) Martinez stated that appellant "[r]eached into his hoodie pocket" and "[c]ame out with the knife, stabbed [Barnett]. As he pulled it back, the knife flew onto the floor and then went back a few feet." (Tr. Vol. II at 251.) {¶ 14} The stabbing occurred about ten to fifteen seconds "into the fight." (Tr. Vol. II at 251.) Appellant and Coty then "jumped into [appellant's] vehicle, took off." (Tr. Vol. II at 252.) Martinez testified that either appellant or Coty picked up the knife before leaving the scene. Barnett did not have any type of weapon, and, according to Martinez, appellant was not in danger of serious physical harm during the incident. {¶ 15} Barnett "pulled up his shirt and he told me * * * 'He stabbed me bro,' and that is when I started seeing blood shooting out of his chest." (Tr. Vol. II at 252.) Martinez went to assist Barnett, but Barnett told Martinez to take his vehicle because "he didn't want no damage to happen to it." (Tr. Vol. II at 255.) Martinez told Peterson to apply pressure to Barnett's wound. Martinez then left the scene in Barnett's vehicle; Martinez drove to his residence and parked the vehicle. He subsequently drove Barnett's vehicle to the hospital and met the police there. Police later showed Martinez a photo array and he selected appellant's photograph. {¶ 16} On December 23, 2015, Chelsey Pitts, Martinez's fiancée, was at her residence; Martinez and Barnett were in the kitchen, and Barnett was talking on the phone. At approximately 2:00 p.m., Martinez and Barnett left the residence in Barnett's vehicle, a black Honda. Later that afternoon, Martinez returned to the residence "real frantic, panicked." (Tr. Vol. II at 279.) Martinez "just kept saying, '[Barnett] asked me to take the car. [Barnett] asked me to take the car.' " (Tr. Vol. II at 280.) Martinez and Pitts subsequently received a call telling them to bring Barnett's car to the hospital. When they arrived, Martinez spoke to the police for approximately two hours. {¶ 17} On December 23, 2015, at approximately 3:30 p.m., Columbus Police Officer Patrick McHenry was on patrol when he received a dispatch reporting a stabbing. When the officer arrived at the scene, he observed "a younger man laying on the ground, obviously injured, and another gentleman was leaning over him applying pressure to a chest wound that the gentleman had suffered." (Tr. Vol. II at 285.) The man on the ground "had a visible puncture wound in his chest which was sort of a flat wound like a knife would make. He was semi-conscious but not really responsive." (Tr. Vol. II at 287.)
No. 17AP-427 5

{¶ 18} Officer McHenry spoke to witnesses, including Peterson, who gave the officer a description of the assailant "as a 20-ish year old light-skinned male black and/or mixed race." (Tr. Vol. II at 288.) Peterson "said he knew him, he was familiar with him, [and] his name was Nick Kean." (Tr. Vol. II at 288.) Witnesses stated that the assailant "fled the scene in a black or gray Jeep." (Tr. Vol. II at 288.) {¶ 19} On December 27, 2015, Officer McHenry was on patrol when he observed a Jeep Cherokee parked in front of a residence on Warren Avenue. The vehicle had two different license plates. The officer ran a LEADS check and discovered the registration "came back to Nicholas Kean." (Tr. Vol. II at 295.) The vehicle "looked * * * like it had just been cleaned." (Tr. Vol. II at 340.) Two individuals "came out of the residence that it was parked in front of and told me that someone had sold the car to them for * * * like $200 or some unbelievable low amount of money." (Tr. Vol. II at 340-41.) The vehicle had been sold after December 23, 2015. Officer McHenry contacted appellant's grandmother regarding the vehicle. Appellant's grandmother and mother drove to the scene and claimed ownership of the vehicle. {¶ 20} On December 23, 2015, Columbus Police Detective Martin Kestner investigated a reported stabbing, and the detective received the name of a suspect, "Nicholas Kean." (Tr. Vol. II at 323.) Appellant subsequently turned himself in to the police, and Detective Kestner interviewed him at police headquarters. Detectives also collected items belonging to Barnett, who died on December 27, 2015; the items included Barnett's clothing and cell phone. A number of months after the incident, defense counsel turned over a blood stained sweatshirt to the prosecutor, which appellant's grandmother had first provided to defense counsel. {¶ 21} Detectives performed extraction of data from Barnett's cell phone. Texts sent to the phone on December 23, 2015 included texts from appellant's cell phone number. One of the texts from appellant's phone, sent at 2:45 p.m., stated: "Bring some witchu to cause this switchblade goin thru your kidney." (Tr. Vol. II at 349.) Another text sent from appellant's phone at 2:57 p.m. stated: "On my way to yah momma house." (Tr. Vol. II at 349.) A third text, sent at 3:25 p.m., stated: "Ran thru ur yard an almost hadd beat ur neighbor up smh." (Tr. Vol. II at 350.)
No. 17AP-427 6

{¶ 22} On December 29, 2015, Dr. Donald Pojman, a deputy coroner and forensic pathologist with the Franklin County Coroner's Office, conducted an autopsy of John Barnett. Dr. Pojman noted a stab wound on the left side of Barnett's chest and another wound on the back of the left forearm. The wound to the chest "struck the left lung and also the heart" and was the cause of death. (Tr. Vol. III at 422.) The fatal stab wound traveled a distance of "approximately four to six inches" in striking the heart. (Tr. Vol. III at 430.) {¶ 23} At the close of the state's case-in-chief, defense counsel made a Crim.R. 29 motion for judgment of acquittal. The trial court denied the motion. {¶ 24} Karen Kean, the grandmother of appellant, testified on his behalf. Kean identified State's Exhibit H as appellant's "hoodie shirt." (Tr. Vol. III at 457.) Kean stated she found the shirt in a garbage bag appellant had brought to the house following the incident. The shirt had blood on the back. Kean testified she brought the shirt to the office of appellant's attorney and gave the shirt to an individual named Cicero. Kean denied she sold appellant's Jeep Cherokee, and she denied ever seeing the vehicle after the incident. {¶ 25} On cross-examination, Kean testified she found the sweatshirt in September 2016, approximately ten months after the incident. She stated appellant dropped off the clothing in December 2015, shortly before he turned himself in to authorities but that she waited until September 2016 to go through the items, which were in a trash bag. {¶ 26} Appellant, age 21, testified on his own behalf. Appellant identified State's Exhibit H as a hoodie he was wearing on the date of the incident. Prior to the incident, appellant resided at his grandmother's residence. Appellant has known Barnett for approximately six years. Appellant considered Barnett a friend, and appellant would occasionally spend the night at Barnett's house. Appellant was at Barnett's residence two weeks prior to the incident; on that occasion, appellant "knocked over one of [Barnett's] bongs" and broke it. (Tr. Vol. III at 481.) Appellant offered to pay him for the bong, and he gave Barnett "$15 or $20." (Tr. Vol. III at 481.) {¶ 27} On December 23, 2015, appellant was at the house of a friend, Coty Knox; they were planning to smoke marijuana. Appellant has a Facebook page and was "friends" with Barnett. (Tr. Vol. III at 484.) Appellant checked Barnett's Facebook page
No. 17AP-427 7

that day; Barnett had "said something about not feeling sorry for people and not throwing pity parties and something about not caring about everybody else." (Tr. Vol. III at 484.) Appellant testified he had a problem with the post because "[a]t the time I was going through some things and I felt that he was indirectly stating those things about me. Given that his friends were also my mutual friends, I felt that in a sense he was airing out dirty laundry on the Internet." (Tr. Vol. III at 485.) {¶ 28} Appellant responded to the post and Barnett subsequently phoned appellant. Appellant stated he felt threatened by the phone call. Appellant testified: "When he called me, he was screaming and hollering like I never heard before and said, 'When I see you, I'm going to break you.' And excuse my language. He said, 'When I see you, I'm going to blow your fucking head off.' " (Tr. Vol. III at 486.) According to appellant, he had previously observed Barnett with a gun. {¶ 29} Appellant denied that he wanted a physical confrontation with Barnett. Appellant stated: "Personally I don't believe fighting resolves anything." (Tr. Vol. III at 488.) Following the phone call, appellant texted Barnett. Appellant testified: "I had threatened him with a knife." (Tr. Vol. III at 488.) Appellant further stated: "Given that he had just threatened me with a weapon, I thought that if I threatened him back, that maybe he would back off." (Tr. Vol. III at 488.) {¶ 30} Appellant and Knox left Knox's house. Appellant testified: "We were headed to [Barnett's] house, actually." (Tr. Vol. III at 489.) According to appellant, he went to the home of Barnett's parents to "see[] what was the problem and moving on from there, figuring out the difference." (Tr. Vol. III at 489.) Appellant stated he was feeling "a little bit anxious, nervous about going over there." (Tr. Vol. III at 491.) When they arrived at the home of Barnett's parents, appellant did not see Barnett's vehicle. Appellant texted Barnett "that I had got into a fight with his neighbor and ran through his yard and then I said at the end, shaking my head, 'smh.' " (Tr. Vol. III at 493.) {¶ 31} Appellant and Knox drove toward a Speedway gas station located on Briggs Road. Appellant stated that his "anxiety was very high." (Tr. Vol. III at 495.) While traveling east, they observed Barnett's vehicle traveling west. Appellant testified Barnett "ended up veering his car into my lane of traffic." (Tr. Vol. III at 496.) Barnett stopped the vehicle; appellant "couldn't hear him, but I could see him mouthing through the
No. 17AP-427 8

window aggressively, like, 'Get out, pull over. Get out, pull over.' He kept saying that." (Tr. Vol. III at 496.) {¶ 32} Appellant drove around Barnett's vehicle and turned onto Binns Boulevard. He thought Barnett was "going home." (Tr. Vol. III at 498.) Appellant pulled into the Binns Elementary School parking lot. Appellant testified he stopped there to turn around and head back to the store. He again drove onto Binns Boulevard and, as he approached a stop sign, observed Barnett's vehicle behind him. Appellant stated he was scared, and when he "looked over to the window, [Barnett] just * * * looked like something like a rabid animal." (Tr. Vol. III at 501.) {¶ 33} Appellant testified Barnett ran up to his vehicle and "yanked it open." (Tr. Vol. III at 502.) Appellant stated he "braced the steering wheel and [Barnett] grabs me by the back of the hoodie and was pulling me out of the vehicle." (Tr. Vol. III at 502.) Appellant testified: "Once I was out of the car, then I went for the pocket knife that I had." (Tr. Vol. III at 505.) He described the knife as "[l]ike a switchblade knife, maybe three or four inches long." (Tr. Vol. III at 505.) {¶ 34} Appellant testified that, as Barnett grabbed him, the hoodie was "up over my head." (Tr. Vol. III at 506.) According to appellant, he "couldn't see anything." (Tr. Vol. III at 506.) Appellant testified: "As the hoodie is over my head, I just took two aimless swipes at where I thought [Barnett] was." (Tr. Vol. III at 509.) Appellant stated that, "[g]iven his actions, I didn't think this was going to be just any regular fist fight." (Tr. Vol. III at 511.) After the incident, appellant "tossed [the knife] into a trash can." (Tr. Vol. III at 514.) Appellant parked the Jeep "in an alley" and had "not seen it since then." (Tr. Vol. III at 514-15.) {¶ 35} On cross-examination, appellant acknowledged his texts indicated he wanted to engage in a fight with Barnett. He agreed the text in which he referenced almost having to beat up Barnett's neighbor sounded aggressive. Appellant did not observe any weapon on Barnett at the time of the confrontation, and Barnett did not say anything to him during the incident. Appellant acknowledged it was his "choice to pull that knife out and use it." (Tr. Vol. III at 533.) Appellant stated that Barnett was maybe able to make one punch "off before I produced the weapon. I didn't wait for the punch to
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pull the weapon." (Tr. Vol. III at 539.) Appellant pulled the switchblade out of the pocket of his hoodie. {¶ 36} Appellant conceded that he told a "slightly different story" when he was interviewed by police on December 24, 2015. (Tr. Vol. III at 533.) Appellant informed officers the switchblade was inside the Jeep and that he reached in and pulled the weapon out. Appellant acknowledged telling the police: "My impression is that we were going to meet up to fight." (Tr. Vol. III at 536.) Appellant also told officers the gray hoodie was in the back of the Jeep. {¶ 37} After stabbing Barnett, appellant "threw" the knife because he was "panicking." (Tr. Vol. III at 541.) Appellant then "kind of shook out of it, picked the knife up and left." (Tr. Vol. III at 542.) Appellant did not offer assistance to Barnett or call for medical assistance. Following the incident, appellant parked the Jeep in an alley; he could not recall the particular alley. Appellant did not know how his Jeep ended up on Warren Avenue. {¶ 38} Following deliberations, the jury returned verdicts finding appellant guilty of murder as charged in Count 2 of the indictment (felony murder) but not guilty of murder as charged in Count 1. By judgment entry filed May 31, 2017, the trial court imposed a prison sentence of 15 years to life. {¶ 39} On appeal, appellant sets forth the following six assignments of error for this court's review: ASSIGNMENT OF ERROR NO. 1:




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{¶ 40} Under the first assignment of error, appellant contends the trial court erred in failing to give a jury instruction on the rebuttable presumption that he acted in selfdefense in stabbing Barnett. Appellant argues various courts have recognized the importance of such an instruction if the evidence presented suggested a defendant was inside his or her residence or vehicle and acting in self-defense.
No. 17AP-427 11

{¶ 41} In support, appellant cites his own testimony that, while pulling up to a stop sign, Barnett approached his car, opened the door, and pulled him out of the vehicle. According to appellant's testimony, he attempted to hold onto the steering wheel but was removed from the vehicle by his hoodie. Appellant acknowledges the state presented a different set of facts related to the incident (i.e., that appellant and Barnett were both willing participants in the altercation and that they both exited their vehicles and began to fight in the middle of the street). Appellant argues, however, that the trial court supplanted its own opinion of the evidence and improperly limited the jury instructions, thereby prohibiting the jury from deciding one of the key facts of the case, i.e., whether Barnett pulled appellant out of his vehicle. {¶ 42} Appellant cites to the following comments by the trial court during the parties' discussion of jury instructions: And let the record reflect I am purposely not giving the rebuttable presumption instruction * * *. The basis is that I listened to the two witnesses that testified that the defendant was outside of his motor vehicle when the altercation or fight ensued. And the only evidence presented or supporting that instruction is the defendant's self-serving testimony. No other witnesses indicate that he was in his vehicle, and so I will not give that jury instruction.

(Tr. Vol. IV at 607.) {¶ 43} In general, requested jury instructions should be provided "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. Further, "[a]n appellate court reviews a trial court's refusal to give a requested jury instruction for abuse of discretion." Id. {¶ 44} Under Ohio law, self-defense is an affirmative defense, requiring a defendant "to prove three elements by a preponderance of the evidence: '(1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger.' " State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, ¶ 36. Further, "the elements of self-defense are cumulative." State v. Jackson, 22 Ohio St.3d 281, 284
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(1986). If a defendant "fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." (Emphasis sic.) Id. {¶ 45} In general, "[b]ecause of the third element, a defendant claiming selfdefense must ordinarily prove that he retreated or avoided the danger if at all possible." State v. McClendon, 1st Dist. No. C-050274, 2006-Ohio-1846, ¶ 16. However, "Ohio has long recognized an exception to the duty-to-retreat requirement of self-defense under what has come to be known as the 'castle doctrine.' " State v. Edwards, 1st Dist. No. C110773, 2013-Ohio-239, ¶ 6. Such exception "is founded upon the principle that a person's home is his castle, and thus a person assaulted in his home has no duty to retreat." Id. In 2008, "the Ohio General Assembly extended the castle doctrine beyond the accused's home to his 'vehicle.' " Id. at ¶ 7. {¶ 46} Although the "traditional view of self-defense itself is not codified, several self-defense theories, including the 'castle doctrine,' are found within Chapter 2901 of the Revised Code" (i.e., R.C. 2901.05 and 2901.09). State v. Carosiello, 7th Dist. No. 15 CO 0017, 2017-Ohio-8160, ¶ 17. R.C. 2901.09(B) (the castle doctrine) states in part that "a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, of defense of that person's residence." R.C. 2901.09(B) "creates an exception to the third element of self-defense, the duty to retreat." Id. at ¶ 18. Further, under the provisions of R.C. 2901.05(B)(1), the legislature "extended this doctrine." Id. at ¶ 19. {¶ 47} R.C. 2901.05(B) states in part:
(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

* * *

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.
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{¶ 48} Thus, R.C. 2901.09(B) "creates an exception to the general duty to retreat," and R.C. 2901.05(B)(1) "further explains that a defendant is entitled to a presumption of self-defense if the evidence shows that the victim was 'unlawfully and without privilege to do so' in the defendant's residence." State v. Lewis, 8th Dist. No. 97211, 2012-Ohio-3684, ¶ 13. In accordance with R.C. 2901.05(B)(3), "[t]his presumption may be rebutted by the state." State v. Petrone, 5th Dist. No. 2011CA00067, 2012-Ohio-911, ¶ 84. In this respect, Ohio appellate courts have held that "the presumption of self-defense may be rebutted by evidence showing the defendant's conduct in the affray did not meet the elements of selfdefense." State v. Nye, 3d Dist. No. 13-13-05, 2013-Ohio-3783, ¶ 30. The presumption under R.C. 2901.05(B)(3) "is rebuttable by a preponderance of the evidence." State v. Montgomery, 12th Dist. No. CA2015-03-028, 2015-Ohio-4652, ¶ 15. {¶ 49} As noted, appellant argues the trial court erred in failing to provide a rebuttable presumption instruction based on the court's view that it did not find credible appellant's testimony that he was dragged out of his vehicle. In addressing appellant's contention, the state argues any error by the trial court in failing to instruct the jury as to rebuttable presumption was harmless. Specifically, relying in part on the Third District Court of Appeal's decision in State v. Hadley, 3d Dist. No. 9-11-30, 2013-Ohio-1942, the state contends that, even under appellant's version of the events, the jury would not have reached a different result if a rebuttable presumption instruction had been provided because no rational juror could have found appellant's decision to use a deadly weapon (i.e., a switchblade knife) during a fist fight reasonably warranted under the circumstances and proportionate to the apparent threat. {¶ 50} We begin with a consideration of Hadley in which the defendant argued, similar to appellant's contention in the instant case, the trial court erred in denying his request to instruct the jury on the rebuttable presumption of self-defense. Under the facts of that case, Donald Ayars, a census taker, came to the defendant's residence and knocked on the door. Ayars testified the defendant became upset and shoved him; as Ayers attempted to exit the front porch, the defendant then grabbed an aluminum bat from inside his front door and struck Ayars. According to the testimony of Ayars, he did not
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enter the defendant's residence; by contrast, the defendant testified Ayars stepped across the doorway threshold, at which time defendant struck him. {¶ 51} The trial court in Hadley instructed the jury on the affirmative defenses of self-defense and defense of another. The court, however, denied the defendant's request to instruct the jury on the presumption of self-defense under R.C. 2901.05(B)(1), "concluding that the Castle Doctrine was inapplicable to the facts" of the case. Id. at ¶ 15. The jury subsequently returned a verdict finding the defendant guilty of felonious assault with a deadly weapon. {¶ 52} On appeal, the defendant argued the trial court erred in failing to provide the requested rebuttable presumption instruction. More specifically, appellant argued that, even though the evidence was insufficient to convince the jury of his affirmative defense of self-defense by a preponderance of the evidence, "and even though the jury found the prosecution's evidence was sufficient to establish the elements of felonious assault beyond a reasonable doubt, the jury could have found the prosecution's evidence was not sufficient to rebut the presumption of self-defense under R.C. 2901.05(B)(1) by a preponderance of the evidence." Id. at ¶ 38. {¶ 53} The Third District Court of Appeals rejected appellant's argument. While the reviewing court found the basis for the trial court's denial of the instruction "was misplaced" (based on the fact that any privilege Ayers may have had to be at the residence was revoked when the defendant asked him to leave), the appellate court further considered whether the trial court's ruling "was prejudicial to [the defendant's] case or whether it constituted harmless error." Id. at ¶ 43. The court found that, "under the circumstances of this case, even as described by [the defendant's] version of events, no rational jury could have found that [the defendant's] use of a baseball bat against [the victim] was reasonably necessary or proportionate to the apparent danger." Id. at ¶ 48. {¶ 54} The court in Hadley further explained: The jury determined that the evidence in this case established the elements of felonious assault beyond a reasonable doubt notwithstanding Hadley's version of events. As such, a rational jury could not have found that the same evidence which was sufficient to override and completely obviate any further consideration of Hadley's affirmative defense and sufficient to establish the elements of felonious assault by proof beyond a reasonable doubt, was somehow not sufficient
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to rebut a presumption of self-defense under R.C. 2901.05(B) by a mere preponderance of the evidence. This also means that any possible error in the trial court's comments to the jury regarding the duty to retreat * * * would be harmless and could not have affected the outcome in this case or constituted reversible error, because no rational juror could have reasonably gotten that far in their consideration of the elements of self-defense in view of the excessive force used by the defendant.

Id. at ¶ 49.

{¶ 55} In its decision, the court in Hadley construed the language of R.C. 2901.05(B) as permitting the prosecution "to rebut the presumption of self-defense contained in R.C. 2901.05(B)(1) by demonstrating by a preponderance of the evidence that the actual elements of self-defense were not established by the facts presented in a particular case." Id. at ¶ 62. In so holding, the court cited with approval other Ohio appellate districts that "have reviewed whether the actual elements of self-defense have been rebutted by the evidence in the record." (Emphasis sic.) Id. at ¶ 61, citing Petrone at ¶ 73; State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, ¶ 26, 29 (8th Dist.). {¶ 56} It has similarly been observed the decision in Hadley "falls in line with decisions from other sister districts" holding that the state may rebut the castle doctrine presumption where "the defendant's actions do not comport with the elements of selfdefense." Carosiello at ¶ 21. In this respect, Ohio courts have held a trial court's failure to give a castle doctrine instruction is not reversible error if there was evidence by which the jury could have found the presumption of self-defense was rebutted. See Nye at ¶ 30-32 (trial court did not err in declining to give instruction on the presumption of self-defense; even assuming the facts implicated such an instruction, the state presented evidence to adequately rebut the presumption, including evidence appellant did not have reasonable grounds to believe he was in imminent danger of death or great bodily harm); State v. Wright, 6th Dist. No. L-16-1053, 2017-Ohio-1225, ¶ 34 (trial court's failure to incorporate castle doctrine instruction did not affect outcome of trial where evidence indicated defendant "could no longer claim 'a bona fide belief of imminent danger of death or great bodily harm,' " and "no reasonable juror could have found that [the defendant] acted in self-defense").
No. 17AP-427 16

{¶ 57} Courts applying the holding Hadley have also rejected the argument (similar to that made by appellant in the instant case) that, in cases in which the castle doctrine is applicable, the defendant's "own conduct during the incident is not at issue." Carosiello at ¶ 20. In Carosiello, the Seventh District Court of Appeals relied on Hadley in holding that such "argument is clearly contrary to both a plain reading of the statute as a whole and the established law in Ohio." Id. In rejecting that argument, the court in Carosiello relied on the following language in Hadley: [U]nder Hadley's interpretation of the statute, the prosecution is precluded from ever rebutting the actual elements of selfdefense with evidence that the defendant was not justified in using force or that the defendant used force unreasonably necessary and disproportionate to the apparent danger presented by the situation.

This would mean that in every scenario in which the presumption of self-defense stated in R.C. 2901.05(B)(1) applies, the defendant is entitled to use any amount of force – even if it is unjustified or disproportionate to the apparent danger presented – against someone in his or her residence who is not privileged to be there regardless of the particular facts and circumstances of the situation. This produces an absolute license to commit any level of violence, including deadly force against any trespasser, immediately upon revoking their privilege to be there, and regardless of the circumstances.

Carosiello at ¶ 20, quoting Hadley at ¶ 58-59.

{¶ 58} As set forth above, the second element of self-defense requires a defendant show 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 was the use of force. Goff at ¶ 36. One component of the second element "entails a showing that the defendant used 'only that force that is reasonably necessary to repel the attack.' " State v. Bundy, 4th Dist. No. 11CA818, 2012Ohio-3934, ¶ 55. See also Montgomery at ¶ 16, quoting State v. Ray, 12th Dist. No. CA2012-10-213, 2013-Ohio-3671, ¶ 30 ("The second element of self-defense involves determining whether the defendant's use of force was 'reasonably necessary to repel the attack' or in other words, whether the defendant used excessive force."). Implicit in the "second element of self-defense, i.e., that the defendant's use of deadly force was in 'good
No. 17AP-427 17

faith,' is the requirement that the degree of force used was 'warranted' under the circumstances and 'proportionate' to the perceived threat." State v. Hendrickson, 4th Dist. No. 08CA12, 2009-Ohio-4416, ¶ 31. Thus, " '[i]f * * * the amount of force used is so disproportionate that it shows an "unreasonable purpose to injure," the defense of selfdefense is unavailable.' " Bundy at ¶ 55, quoting State v. Macklin, 8th Dist. No. 94482, 2011-Ohio-87, ¶ 27, quoting State v. Speakman, 4th Dist. No. 00CA035 (Mar. 27, 2001). Under Ohio law, "[t]his rule applies even if a defendant is attacked in his residence or vehicle," as "[a] defendant who is attacked in his or her residence or vehicle does not possess a license to kill." Id. at ¶ 56. Rather, "the defendant may only use deadly force if necessary to prevent death or great bodily injury." Id., citing State v. Thomas, 77 Ohio St.3d 323, 327 (1997). {¶ 59} On review of the evidence presented in the instant case, we agree with the state's argument that any error by the trial court in failing to instruct the jury on the rebuttable presumption of self-defense was harmless beyond a reasonable doubt, as no rational jury could have found appellant's use of a knife under the facts and circumstances of this case was reasonably necessary and proportionate to the danger presented. As noted by the state, appellant conceded he did not observe Barnett with a weapon during the incident, and the evidence was undisputed that the stabbing occurred within 15 to 20 seconds of Barnett exiting his vehicle. Appellant admitted that he pulled the knife out within seconds of the altercation; according to appellant's own testimony, one punch was "all [Barnett] was able to get off before I produced the weapon," and appellant "didn't wait for the punch to pull the weapon." (Tr. Vol. III at 539.) Appellant proceeded to stab Barnett twice, with the fatal wound going into his chest with sufficient force to lacerate the left lung and heart. The coroner testified that the fatal stab wound traveled "four to six inches" before hitting Barnett's heart. (Tr. Vol. III at 430.) {¶ 60} While appellant stated Barnett had earlier threatened him, appellant admitted he was not threatened with a weapon "at that very moment" and that he "couldn't see if [Barnett] had [a weapon] at that very moment." (Tr. Vol. III at 511.) Hunter Peterson and Jose Martinez, both of whom were eyewitnesses to the stabbing, testified Barnett was unarmed and there was no evidence that Barnett threatened to use a weapon during the incident. Further, none of the witnesses heard Barnett threaten
No. 17AP-427 18

appellant and appellant testified that "the only thing" Barnett said to him during the altercation was: "You stabbed me." (Tr. Vol. III at 540.) Appellant, who acknowledged telling the police that it was his impression they were going to meet up to fight, had earlier texted Barnett to state: "[B]ring sum witchu to cause this switchblade goin thru your kidney." (Tr. Vol. III at 404.) {¶ 61} The evidence presented simply did not support appellant's assertion he had a reasonable belief he was in imminent danger of death or serious bodily harm at the time of the altercation, nor did the evidence reasonably support a finding appellant's decision to stab (unarmed) Barnett in the chest was a necessary and proportionate response to what was, at most, a single punch thrown during a fist fight. Rather, appellant "used deadly force when he was not faced with deadly force, only fists." Ray at ¶ 32 (defendant, while receiving minimal injuries from being punched in the head four or five times, used unreasonable force in stabbing victim in chest with hunting knife and, therefore, could not "show prejudice from the trial court's omission of the 'no duty to retreat from one's own home' instruction"). In sum, the overwhelming evidence in this case indicates that "[t]he degree of force used by appellant was neither warranted under the circumstances nor proportionate to the perceived threat." State v. Green, 12th Dist. No. CA2017-11-161, 2018-Ohio-3991, ¶ 36. {¶ 62} Here, even accepting the facts "implicated the presumption of self-defense" set forth under R.C. 2901.05(B)(1), and "the burden had been shifted to the prosecution" to prove appellant did not act in self-defense, the state presented evidence "to adequately rebut the presumption by a preponderance of the evidence." Nye at ¶ 30-32 (presumption of self-defense rebutted by state's evidence showing defendant "did not have reasonable grounds to believe he was in imminent danger of death or great bodily harm and that his only reasonable response was the use of deadly force"). See also State v. Callahan, 8th Dist. No. 102900, 2016-Ohio-2934, ¶ 31-33 (even assuming the presumption of self-defense applied and that burden had been shifted to prosecution to prove defendant did not act in self-defense, record shows prosecution presented evidence to adequately rebut presumption by preponderance of evidence where state demonstrated defendant did not have reasonable grounds to believe he was in imminent danger of death or great bodily harm and that his only reasonable response was use of deadly force where
No. 17AP-427 19

victim was unarmed). Accordingly, any error by the trial court in failing to provide a rebuttable presumption jury instruction was harmless beyond a reasonable doubt. Hadley at ¶ 49; State v. Whitman, 5th Dist. No. 2017CA00079, 2018-Ohio-2924, ¶ 64-65 (error by trial court in omitting castle doctrine harmless; had jury been instructed on castle doctrine "it would have no effect on the inescapable conclusion" that appellant did not act in self-defense where evidence showed appellant did not reasonably believe shooting victim was his only choice to avoid bodily harm or death).

Outcome: Based on the foregoing, appellant's first assignment of error is not welltaken and is overruled.

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