Opinion
2021 CA 00124
01-03-2023
STATE OF OHIO Plaintiff-Appellee v. JAMES RANDY ROBINETTE Defendant-Appellant
For Plaintiff-Appellee Kyle Stone Prosecuting Attorney By: Vicki L, Desantis Assistant Prosecutor For Defendant-Appellant Kathleen O. Tatarsky
Criminal appeal from the Stark County Court of Common Pleas, Case No. 2020 CR 2236
For Plaintiff-Appellee Kyle Stone Prosecuting Attorney By: Vicki L, Desantis Assistant Prosecutor
For Defendant-Appellant Kathleen O. Tatarsky
Judges: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J.. Hon. John W. Wise, J.
OPINION
GWIN, P.J.
{¶1} Defendant-appellant James Randy Robinette ["Robinette"] appeals his convictions and sentences after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} The January 2021 term of the Stark County Grand Jury charged Robinette with three counts of felonious assault, a violation of R. C. 2903.11(A)(2), felonies of the second degree, and one count of discharge of firearm on or near prohibited premises, R. C. 2923.162(A)(3), a felony of the third degree. The indictment contained one three-year firearm specification in violation of R.C. 2941.145(A).
{¶3} The charges arose from an incident on November 28, 2020 when a vehicle containing three persons came to Robinette's duplex apartment located at 827 30th Street N.E., Canton, Ohio and Robinette shot his revolver. Bill of Particulars, filed Feb. 19, 2021. [Docket Entry No. 6].
{¶4} Prior to trial, Robinette filed a Notice of Self-defense. [Docket Entry No. 25]. Robinette also filed on September 20, 2021 a "Motion in Limine to Allow Evidence of Self-Defense to be Presented at Trial." [Docket Entry No. 46]. In addition, Robinette filed a "Motion in Limine to Allow Evidence of Other Bad Acts of the Alleged Victim." [Docket Entry No. 45].
{¶5} Robinette's jury trial began on September 21, 2021. Prior to voir dire of the jury, the trial judge remarked that he knew self-defense was an issue but would defer on granting a self-defense instruction until hearing the evidence. 1T. at 1; 9. The trial court also ruled that Robinette could testify that he was afraid of the victim because he knew he was violent, but not suggest specific violent acts that he committed. 2T. at 95-97.
For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page number.
November 28, 2020
{¶6} On November 28, 2020, Robinette and his girlfriend, Natalie Guarnieri, were spending time together at his duplex apartment. The apartment had two floors.
{¶7} Robinette worked on the night shift and was scheduled to work that evening. 2T. at 90; 100. Guarnieri was home from college and she came over to spend the night with Robinette at his apartment. 2T. at 58-59.
{¶8} That morning, they woke up and cooked breakfast. 2T. at 60. Later that morning, Guarnieri looked out the upstairs window and saw a car in the driveway. She didn't recognize the car or the "big white man with a beard" who exited the vehicle. 2T. at 60-61. She later learned that his name was Tony Diaz-Sauceda ["Diaz"]. Id. Guarnieri testified that Diaz is "at least three times [Robinette's] size." 2T. at 66. Guarnieri observed Diaz with mail in his hands and told Robinette to go see who it was, as she thought it was the former tenant collecting his mail. 2T. at 61 -62. Waiting inside the car was Noah Johnson and Kaitly Siakon. 1T. at 168.
The indictment in this case spells the name, "Siakon." The transcript spells the name, "Sikon." Kaitly Siakon did not testify at trial.
{¶9} Robinette went downstairs and called out, "who is it," and heard the reply "Noah's Tony." 2T. at 62-63; 95-97; 101. Robinette opened the door, shook Diaz's hand and said, "what's going on." 2T. at 101-102. Robinette and Guarnieri both heard Tony say "we gotta work" meaning "we got to fight." 2T. at 64; 102. Robinette responded that no, he was not going to do that because his girlfriend was present and he had to work that night. 2T. at 64; 102. Diaz then demanded money from Robinette. Id.
{¶10} Robinette noticed that Diaz had his hand on a handgun tucked into the front pocket of his hoodie. 2T. at 103-104. Robinette saw his friend, Johnson, get out of the car and walk to the front of the car telling Robinette that he, Johnson could not control Diaz and that Diaz might rush Robinette. 2T. at 110. Robinette closed the front door and locked it. 2T. at 66-67; 110-111. Robinette testified that he was "terrified." 2T. at 110. As he ran upstairs, Robinette heard the front door knob shaking and turning as if someone was trying to open the door and get into the home. 2T. at 111. Robinette grabbed a .44 Magnum Taurus revolver from the dresser. 2T. at 111 -112.
{¶11} After making sure that his girlfriend was alright, Robinette heard a loud noise that sounded like a loud bang, frightening the two of them. 2T. at 68; 112. Not knowing whether the door had been kicked in, or if someone had entered the home through a different entrance, Robinette ran downstairs. 2T. at 112.
{¶12} Robinette observed that the front door had not been breached; however, he was concerned that the noise had come from someone attempting to enter the residence through the garage. 2T. at 113. Robinette opened his front door and saw that the trash cans had been knocked over and trash was strewn about. Id. at 114. Johnson and Siakon were inside the car which was backing up. Id. Diaz was standing next to the car. 2T. at 114-115. The rear passenger door to the car was open, but Diaz had not gotten into the car. Id. at 117. The pair made eye contact. 2T. at 118. Diaz had his hand on his weapon. 2T. at 115-116. Robinette fired his weapon at Diaz. 2T. at 116. Diaz got into the car as Robinette fired two more times. 2T. at 117. Diaz then returned fire from inside the car. 2T. at 117-118. Surveillance video from the hardware store next door, showed Diaz then exiting the vehicle and walking toward the house. State's Exhibit 4A; 1T. at 180; 184-185.
{¶13} Robinette took cover by closing his front door and crouching against the wall next to the door. 2T. at 118. Robinette testified that he had never been more scared. Id. at 119. Robinette told Guarnieri to call 9-1 -1 and tell dispatch that "they're shooting at us." 2T. at 67; 76. Terrified and thinking she was going to die, Guarnieri called 9-1 -1. 2T. at 69.
The police respond
{¶14} Canton Police Officer Joseph Bays was working traffic patrol on 30th Street when he heard shots fired. 1T. at 121. A passer-by pointed out the location of the shots and Bays turned his cruiser around and headed to the area. In the driveway of a duplex, he saw a 2011 black BMW and two males and a female. 1T. at 122; 165. He unholstered his service weapon and called CANCOM for additional units to respond. 1T. at 122.
{¶15} Officer Bays pointed his firearm at the front door of the duplex and waited for back up officers to respond. Robinette and Guarnieri were on the line with dispatch at the time and were told to come out of the house. Robinette and his girlfriend, Guarnieri, complied and came out of the house into the driveway. 1T. at 124.
{¶16} Officer Bays and other law enforcement officers entered the duplex apartment to make sure there were no other shooting casualties. Finding none, they went through the apartment and found two to three firearms all lawfully owned by Robinette. 1T. at 124. Officer Bays secured Tony Diaz-Sauceda in his cruiser to take him down to the detective bureau for questioning. 1T. at 125-126. Officer Bays found concealed on Diaz a FN five-seven firearm, a small handgun that shoots rifle cartridges in very fast rounds. 1T. at 128-129; 159. The FN five-seven was released prior to trial and was not admitted into evidence. 2T. at 52.
The investigation
{¶17} Canton Police lead detective, Joseph Mongold, was called out to the above address around 1:00 p.m. 1T. at 143.
{¶18} Detective Mongold testified Robinette, Diaz, Johnson, Siakon and Guarnieri were transported to headquarters to be interviewed. 1T. at 147. After Robinette signed a Miranda waiver, he agreed to speak with Detective Mongold. 1T. at 149; 154; State's Exhibit 13. Robinette's recorded statement was played for the jury. 1T. at 152.
{¶19} Detective Mongold documented the damage to Robinette's apartment,
The front door of the residence had bullet holes in it. The bullets had passed through the front door and into the residence causing damage to the interior of the apartment itself. Drywall damage, some wood damage, these types of things that occurred.1T. at 158-159. The damage to the Robinette apartment was caused by the FN five-seven handgun in the possession of Diaz. 1T. at 159. The FN five-seven is a handgun that fires rifle bullets. 1T. at 159. In addition to the damage to the interior of Robinette's apartment, Detective Mongold found shell casings from the FN five-seven handgun in the interior of the BMW. Detective Mongold testified that the bullet holes in the windshield of the BMW went from the inside of the car firing outside. 1T at 167; State's Exhibit 1H. Detective Mongold confirmed Diaz fired those rounds. Id. Mongold confirmed that Noah Johnson was driving the BMW, Kaitlin Siakon was in the front passenger seat and Diaz was in the rear passenger seat. 1T. at 168.
{¶20} Detective Mongold also determined that there was damage to the front of the BMW including the engine compartment from shots fired from Robinette's revolver. 1T. at 169; 201. There were also rounds that traveled across 30th Street and hit two vehicles parked in the businesses across the street. 1T. at 169.
{¶21} Detective Mongold identified the November 28, 2020 9-1-1 call from Guarnieri that was played for the jury. 1T. at 161; State's Exhibit 4B.
{¶22} Detective Mongold located video evidence from the True Value Hardware Store, directly west of Robinette's address. 1T. at 174. The video does not capture the area between Robinette's front door or the front of the apartment complex and the BMW.
{¶23} At 13:52:20 in the video an individual wearing a light-colored hoodie can be seen exiting from the rear passenger side door of the car. At 13:52:54 of the video the individual can be seen walking back to the car. At 13:53:06 the individual can again be seen walking toward the front of the apartment complex. At 13:53:21 a large white box truck pulls into the True Value Hardware's parking lot obstructing the view of the apartment complex and the car. At 13:55:03 the car is observed backing up as it clears the white truck obstructing the view. No one can be seen getting into or out of the car before this point. At 13:55:08 a shopper wearing a ball cap exits the True Value Hardware store looking in the direction of the apartment complex. At 13:55:10 it can be observed that shots are being fired from inside the vehicle through the front windshield. At 13:55:14, the individual in the light-colored hoodie exits the rear passenger seat of the vehicle and walks toward the front of the apartment complex appearing to be holding a weapon.
{¶24} The video was played for the jury and admitted into evidence as part of State's Exhibit 4.
{¶25} On cross examination, Detective Mongold agreed that Johnson, Siakon, and Diaz went to Robinette's residence unannounced and that Diaz took mail from Robinette's mailbox. 1T. at 192. Diaz knocked on the door and Robinette opened the door. Diaz told Robinette they needed to fight. 1T. at 193. Robinette also told Detective Mongold that Diaz had a gun in his pocket with his left hand on the butt while at the door. Id. Detective Mongold confirmed that Diaz told Robinette we need to work [fight] or you need to give me some money. 1T. at 194. Detective Mongold further testified that Johnson also got out of the car and said we need to fight or pay. 1T. at 195. Further Robinette told Detective Mongold that Johnson told him Diaz would rush him if he did not fight or pay him. Detective Mongold agreed that Diaz was a bigger, stockier man than Robinette. 1T. at 196. Robinette told Detective Mongold that the request for money came out of nowhere as he did not owe Johnson or Diaz for drugs or anything else. State's Exhibit 4A. Robinette further told Detective Mongold that the discussion concerning the "wood roller" occurred as Diaz was walking away from the door. State's Exhibit 4A.
{¶26} Detective Mongold said Robinette conveyed he was afraid that they would get inside his home so he slammed and locked the door, and ran upstairs to get his gun. State's Exhibit 4A. Robinette claimed he could see the handle to the door twisting behind him and he heard a loud noise, as he was getting his gun. 1T. at 198; State's Exhibit 4A. Because he was afraid of them getting into his home, he opened the front door and fired while Diaz was outside the car. State's Exhibit 4A.
{¶27} Diaz, Johnson and Siakon did not testify at trial.
{¶28} Following the presentation of evidence, after the court's review of caselaw and evidence, the court denied Robinette's request to instruct the jury on self-defense. 2T. at 155-165. The trial judge found that Robinette did not demonstrate 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 deadly force. 2T. at 156-157.
{¶29} The trial court did instruct the jury on the lesser included offense of aggravated assault. 2T. at 163.
{¶30} The jury found Robinette guilty of felonious assault against Johnson and Siakon, aggravated assault against Diaz, guilty of discharge of a firearm at or near prohibited premises, and the firearm specification. The trial court sentenced Robinette to three years on the gun specification, and an aggregate prison term of two years up to a maximum of three years on the other charges.
Assignments of Error
{¶31} Robinette raises five Assignments of Error, {¶32} "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GIVE A SELF-DEFENSE INSTRUCTION.
{¶33} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN ALLOWING THE STATE TO ADMIT 'OTHER ACTS EVIDENCE' THAT DEPRIVED ROBINETTE OF A FAIR TRIAL.
{¶34} "III. THE PROSECUTION COMMITTED MISCONDUCT THAT DEPRIVED ROBINETTE HIS RIGHTS TO A FAIR TRIAL.
{¶35} "IV. ROBINETTE WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶36} "V. ROBINETTE'S CONVICTION FOR DISCHARGE OF A FIREARM NEAR PROHIBITED PREMISES WITH A FIREARM SPECIFICATION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I.
{¶37} In his First Assignment of Error, Robinette argues the trial court abused its discretion in failing to give a self-defense instruction under the current version of R. C. 2901.05. [Appellant's brief at 7]. Specifically, Robinette contends the trial court's refusal to give any instruction on self-defense was incorrectly based upon the trial court's finding that Robinette had the affirmative burden of production, of producing evidence that tends to support that he used the force in self-defense. [Appellant's brief at 8].
Standard of Appellate Review
{¶38} In determining whether a self-defense jury instruction is warranted, we look to whether 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. R.C. 2901.05(B)(1).
{¶39} A review of the record to determine whether evidence tends to support that the accused person used force in self-defense is a question of law that we must review de novo. See, State v. Williams, 11th Dist. Hamilton No. C-190280, 2020-Ohio-5245, ¶5; State v. Sims, 7th Dist. Columbiana No. 19 CO 0035, 2021-Ohio-2334, ¶12; State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407, 941 N.E.2d 1265(3rd Dist. 2010), ¶4; State v. Harvey, 4th Dist. Washington Nos. 21CA3, 21CA4, 2022-Ohio-2319, ¶39; State v. Sullivan, 11th Dist. Lake Nos. 2019-L-143, 2019-L-144, 2020-Ohio-1439, ¶33, quoting State v. Imondi, 11th Dist. Lake No. 2014-L-019, 2015-Ohio-2005, ¶18.
Self Defense under R.C. 2901.05
{¶40} In order to determine when an instruction of self-defense is warranted, we first look to R.C. 2901.05(A) which provides,
(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.Emphasis added.
{¶41} In order to determine the respective duties with respect to a self-defense claim, we must turn to R.C. 2901.05(B)(1),
(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 self-defense, defense of another, or defense of that person's residence, as the case may be.Emphasis added. This section plainly and explicitly recognizes and permits a citizen the right to self-defense, defense of another and defense of his or her residence.
{¶42} Importantly, in a departure from previous law, R.C. 2901.05(B)(1) does not state that the accused must present evidence that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence. See, State v. Melchior, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978) (former law). Rather, the trial court must look to the record and consider evidence "from whatever source the evidence may come." Id.
{¶43} The trial court should view this evidence in the light most favorable to the defendant. State v. Stephens, 8th Dist. Cuyahoga, 2016-Ohio-384, 59 N.E.3d 612, ¶ 19, citing State v. Robinson, 47 Ohio St.2d 103, 112, 351 N.E.2d 88 (1976). The question of credibility is not to be considered. State v. Belanger, 190 Ohio App.3d 377, ¶6 (3d Dist. 2010); See also Imondi, supra, at ¶17 ("We evaluate the evidence in a light most favorable to the defense."); State v. Sullivan, supra, 2020-Ohio-1439, ¶45; State v. Davidson-Dixon, 8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶20.
{¶44} If there is conflicting evidence, the instruction must be given. State v. Davidson-Dixon, supra ¶20; State v. Johnson, 8th Dist. Cuyahoga No. 110673, 2022-Ohio-2577, ¶10. The defendant's testimony alone can be evidence that tends to support that he used force in self-defense. See, State v. Sullivan, supra, 2020-Ohio-1439, ¶45; State v. Belanger, supra, 190 Ohio App.3d 377 at ¶6.
{¶45} Thus, under the law as currently written, the trial judge assumes the role of a gate-keeper to determine whether evidence was presented from any source that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence. If it has, then the jury must decide whether the state has disproved beyond a reasonable doubt that the accused person used the force in self-defense, defense of another, or defense of that person's residence.
Issue for appellate review: Whether evidence was presented that tends to support that Robinette used force in self-defense, defense of another, or defense of his residence
{¶46} In the case at bar, Robinette consistently admitted that he fired a .44 magnum revolver 3 to 4 times at Diaz. The use of a gun constitutes deadly force. See, State v. Barker, 2nd Dist. Montgomery No. 29227, 2022-Ohio-3756, ¶8. Thus, if the evidence produced at trial tends to support that Robinette used deadly force in self-defense, the trial court must instruct the jury that the state must prove beyond a reasonable doubt that Robinette did not use that force in self-defense. In other words, the state must disprove at least one of the elements of the use of deadly force in self-defense beyond a reasonable doubt. The elements of self-defense that the state must now disprove at least one of are: (1) Robinette was not at fault in creating the situation giving rise to the affray, (2) Robinette had reasonable grounds to believe and an honest belief even if mistaken that he was in imminent danger of death or great bodily harm and that he did not use more force than necessary to defend against the attack and (3) Robinette must not have violated any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 79, 388 N.E.2d 755(1979) (citations omitted); See also, State v. Barker, 2nd Dist. Montgomery No. 29227, 2022-Ohio-3756, ¶27; State v. Evans, 8th Dist. Cuyahoga No. 79895, 2002-Ohio-2610, ¶ 53; State v. Hamilton, 12th Dist. Butler No CA2001-04-098, 2002-Ohio-3862, ¶17.
{¶47} However, when exercising its gate keeper function to determine whether the jury should be instructed on self-defense, the trial court should only concern itself with whether the evidence produced at trial "tends to support" that Robinette used deadly force in self-defense. Under the present version of the law, whether he ultimately used or did not use deadly force in self-defense is a question of fact for the jury to decide after hearing the evidence, judging the credibility of the witnesses and receiving proper instructions on the law from the trial court.
Evidence was presented that tends to support that Robinette was not at fault in creating the situation giving rise to the affray.
{¶48} The unrefuted evidence presented established that Diaz, Johnson and Siakon came uninvited to Robinette's apartment to engage in a physical confrontation with Robinette. Diaz brought a gun with him that was observed by Robinette.
{¶49} Thus, evidence was presented that tends to support that Robinette was not at fault in creating the situation giving rise to the affray.
Evidence was presented that tends to support that Robinette did not violate any duty to retreat or avoid the danger
{¶50} Robinette told Diaz that he did not want to fight and that his girlfriend was present. Robinette never left the doorway of his apartment.
R.C. 2901.09 "Stand your ground."
{¶51} Ohio citizens are permitted to "stand his or her ground" and defend themselves. Most recently amended April 6, 2021, R.C. 2901.09, provides,
(A) As used in this section, "residence" has the same meaning as in section 2901.05 of the Revised Code.
(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence if that person is in a place in which the person lawfully has a right to be.
(C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person's residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.
{¶52} In State v. Brooks, ___ Ohio St.3d ___, 2022-Ohio-2478, ___ N.E.3d ___ the Ohio Supreme Court held that amendments to the self-defense statute, which shifted the burden of proof on self-defense from defendant to prosecution, apply to all subsequent trials even when the alleged offenses occurred prior to the effective date of the amendments. The same rationale used by the Supreme Court in Brooks would apply to the amendment to R.C. 2901.09, making the amended version applicable to Robinette's case. As Robinette's jury trial did not commence until September 21, 2021, the amended statute would apply. See, State v. Wagner, 11th Dist. Lake No. 2021-L-101, 2022-Ohio-4051, ¶28. Contra, State v. Parker, 1st Dist. Hamilton No. C-210440, 2022- Ohio-3831, ¶14.
{¶53} However, we reach the same result under the prior version of R.C. 2901.09. The prior version of R.C. 2901.09 provided,
(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.
{¶54} The evidence in the case at bar, establishes that Robinette never left his residence. At all times, he was in a place where he lawfully had a right to be. Accordingly, under either version of the law as currently written, evidence was presented that tends to support that Robinette did not violate any duty to retreat or avoid the danger.
Evidence was presented that tends to support that Robinette had reasonable grounds to believe and an honest belief even if mistaken that he was in imminent danger of death or great bodily harm.
{¶55} The second element of self-defense requires that the evidence tend to show that the accused had reasonable grounds to believe or an honest belief, even if mistaken, that he was in imminent or immediate danger of death or great bodily harm. In State v. Thomas, the Ohio Supreme Court explained,
[T]he second element of self-defense is a combined subjective and objective test. As this court established in State v. Sheets (1926), 115 Ohio St. 308, 310, 152 N.E. 664, self-defense "is placed 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." (Emphasis sic.) See, also, McGaw v. State (1931), 123 Ohio St. 196, 174 N.E. 741, paragraph two of the syllabus. In Koss, we once again stated this test by approving similar jury instructions to those given in the case sub judice:
"In determining whether the Defendant had reasonable grounds for an honest belief that she was in imminent danger, you must put yourself in the position of the Defendant * * *. You must consider the conduct of [the assailant] and determine if such acts and words caused the Defendant to reasonably and honestly believe that she was about to be killed or to receive great bodily harm.'" (Emphasis added.) Koss, 49 Ohio St.3d at 216, 551 N.E.2d at 973. Thus, the jury first must consider the defendant's situation objectively, that is, whether, considering all of the defendant's particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, she reasonably believed she was in imminent danger. See 1 LaFave & Scott, Substantive Criminal Law (1986, Supp.1996) 654, Supp. 71, Section 5.7. See, also, generally, State v. Shane (1992), 63 Ohio St.3d 630, 634, 590 N.E.2d 272, 276…Then, if the objective standard is met, the jury must determine if, subjectively, this
particular defendant had an honest belief that she was in imminent danger. See 1 LaFave & Scott, Substantive Criminal Law (1986, Supp.1996) 654, Supp. 71, Section 5.7. See, also, generally, Shane, supra, 63 Ohio St.3d at 634, 590 N.E.2d at 276….77 Ohio St.3d 323, 330-331, 673 N.E.2d 1339(1997).
{¶56} "[I]if the evidence generates only a mere speculation or possible doubt, the evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted." State v. Melchior, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978) (former law). It should be noted that the decision in Melchior reviewed the self-defense statute at a time when the statute required the accused to prove by a preponderance of the evidence that he acted in self-defense. In contrast according to the plain meaning of the statue as presently written, a person who is lawfully in his home or in a place that he or she has a right to be, has a right to defend themselves, another person and his or her property.
{¶57} In the case at bar, Diaz, Johnson and Siakon did not testify. Robinette's unrefuted testimony, corroborated by Detective Mongold's testimony, is that the trio arrive uninvited and unannounced at his apartment. Diaz goes through Robinette's mailbox. 1T. at 192. Diaz appears at his door, and demands that Robinette fight. 1T. at 193; 2T. at 64. Robinette declines telling Diaz in part that Guarnieri is present and he has to work. 1T. at 193; 2T. at 65. Robinette notices Diaz has his hand on a gun tucked into the pocket of his hoodie. 1T. at 193; 2T. at 103-104. Johnson exits the car and tells Robinette that he had better fight or pay Diaz and that Diaz may rush him if he does not. 1T. at 195; 2T. at 107; 110. Robinette knows that Diaz has a reputation as a violent person who always carries a gun. 2T. at 97-98. Detective Mongold agreed that Diaz was a bigger, stockier man than Robinette. 1T. at 196. Robinette testified that he feared that Diaz was going to rob him. 2T. at 102. Robinette testified that he was "terrified." 2T. at 104; 110. Robinette closed and locked the door. 2T. at 111. Robinette heard and saw the door knob twisting as he was running up the stairs to retrieve his gun. 2T. at 111. After making sure that Guarnieri was all right, Robinette hears a loud bang which frightened both him and Guarnieri. 2T. at 68; 112. Robinette testified that he was afraid that they were attempting to get into his apartment by another means. 1T. at 197-198; 2T. at 112-113. Robinette saw his front door was not opened so he thought perhaps they had breached the garage. 2T. at 113. He was unable to see the garage door from his door so he opened his front door. Id. As he looks out the door, Robinette sees his trash cans and trash had been strewn about. 2T. at 114. He observes the car backing up, but Diaz remained outside next to the car. Id. Diaz was looking at Robinette, making eye contact. 2T. at 115. Robinette testified, "Because I felt as if, he, he saw my gun and that he still had his gun, he was going to shoot me." 2T. at 116.
{¶58} As previously noted, under the law as presently written R.C. 2901.05(B)(1), permits a person "to act in self-defense, defense of another, or defense of that person's residence." A person standing in the doorway of his home is lawfully where he or she has a right to be. When confronted with an individual or individuals threatening harm to that person, another person present, or his or her property that person is entitled to act in self-defense. Accordingly, some evidence was 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.
{¶59} In the case at bar, the minimum standard of evidence required to present self-defense to the jury is present in the record. Whether that evidence is credible and whether the state can prove beyond a reasonable doubt that the accused did not act in self-defense are questions of facts for the jury to decide, the trial court's role in deciding whether to allow a jury instruction on self-defense is more limited-it is not the trial court's job to weight the evidence under the statutes as they are presently written.
{¶60} In this case, the trier of fact was the jury, not the trial judge. The trial court improperly assumed the jury's role by making its own evaluation of the weight of the evidence and the credibility of the witnesses in deciding not to give the self-defense instruction. Based on the record before this court, we find that when viewing the evidence in favor of Robinette, sufficient evidence was presented that tends to show that he acted in self-defense. The trial court should have granted Robinette's request to instruct the jury on deadly force self-defense. Accordingly, the trial court erred as a matter of law because the minimum standard of evidence required to present self-defense to the jury is present in the record.
{¶61} When an accused asserts the defense of self-defense he does not seek to negate any of the elements of the offense which the state is required to prove. Self-defense is not merely a denial or contradiction of evidence offered by the state to prove the essential elements of the charged crime. Rather, it is an admission of the prohibited conduct coupled with a claim that the surrounding facts or circumstances exempt the accused from liability therefor- "justification for admitted conduct." State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888(1973).
{¶62} We are unconvinced that the absence of an instruction on the right to stand his ground and defend himself, another person or his property was harmless. The only real issue in the case was whether Robinette acted in self-defense, and we see an undeniable benefit to a defendant in having a jury told that he has a right to act in self-defense, defense of another, or defense of that person's residence. Further, there is a benefit to having a jury told that the state must disprove self-defense beyond a reasonable doubt, presumably that was one of the considerations in writing the law the way that it is presently codified.
{¶63} The state has argued that if the trial court's failure to instruct the jury on self-defense was erroneous, no prejudice resulted from the error. However, Robinette's sole theory at trial was that he acted in self-defense. Robinette testified in his own behalf to that effect. He obviously defended himself at trial by attempting to create in the minds of the jurors a reasonable doubt that his actions were in defending himself, his girlfriend and his home. In that light, the error to charge the jury with respect to the defense of self-defense was highly prejudicial. See, State v. Poole, 32 Ohio St.2d 18, 21, 294 N.E.2d 888(1973).
{¶64} Robinette's First Assignment of Error is sustained.
II, III, IV & V
{¶65} In light of our disposition of Robinette's First Assignment of Error, we find Robinette's Second, Third, Fourth and Fifth Assignments of Error to be premature.
{¶66} The judgment of the Stark County Court of Common Pleas is reversed and this matter is remanded for proceedings in accordance with our Opinion and the law.
Gwin, P.J., Hoffman, J., and Wise, John, J., concur