[Cite as State v. Chavez, 2020-Ohio-426.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-19-05

        v.

JOSHUA S. CHAVEZ,                              OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-19-06

        v.

JOSHUA S. CHAVEZ,                              OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-19-07

        v.

JOSHUA S. CHAVEZ,                              OPINION

        DEFENDANT-APPELLANT.
Case Nos. 13-19-05, 13-19-06 and 13-19-07




             Appeals from Seneca County Common Pleas Court
          Trial Court Nos. 16 CR 0210, 16 CR 0211 and 18 CR 0145

                             Judgments Affirmed

                    Date of Decision: February 10, 2020


APPEARANCES:

      Robert A. Miller for Appellant

      Rebeka Beresh for Appellee




ZIMMERMAN, J.

      {¶1} Defendant-appellant, Joshua S. Chavez (“Chavez”), appeals the

February 11, 2019 judgment entries of sentence of the Seneca County Court of

Common Pleas. For the reasons that follow, we affirm.

      {¶2} This appeal stems from a February 3, 2018 altercation that took place

between Chavez (who was under community-control sanctions) and Russell Poole

(“Poole”), during which Chavez punched Poole in the head and face at least four

times. Chavez alleged that he acted in self-defense after Poole entered Chavez’s

residence without permission and lunged at Chavez.



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           {¶3} Prior to the February 3, 2018 altercation, on October 12, 2016, the

Seneca County Grand Jury indicted Chavez (in case number 16CR0210) on one

count of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-

degree felony, and (in case number 16CR0211) on one count of possession of heroin

in violation of R.C. 2925.11(A), (C)(6)(a), a fifth-degree felony.                           (Case No.

16CR0210, Doc. No. 1); (Case No. 16CR0211, Doc. No. 1). On October 14, 2016,

Chavez appeared for arraignment and entered pleas of not guilty to the indictments.

(Case No. 16CR0210, Doc. No. 9); (Case No. 16CR0211, Doc. No. 10).

           {¶4} On December 12, 2016, Chavez withdrew his pleas of not guilty and

entered guilty pleas, under written plea agreements, to the indictments. (Case No.

16CR0210, Doc. No. 17); (Case No. 16CR0211, Doc. No. 18). That same day, the

trial court accepted Chavez’s guilty pleas and found him guilty.                             (Case No.

16CR0210, Doc. No. 18); (Case No. 16CR0211, Doc. No. 19). On February 7,

2017, the trial court sentenced Chavez, based on the joint-sentencing

recommendation of the parties, to three years of community control.1 (Case No.

16CR0210, Doc. No. 20); (Case No. 16CR0211, Doc. No. 21).

           {¶5} After the altercation between Chavez and Poole, on July 11, 2018,

Chavez was indicted (in case number 18CR0145) by the Seneca County Grand Jury

on one count of felonious assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), a



1
    Chavez did not appeal his conviction and sentence in case number 16CR0210 or 16CR0211.

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Case Nos. 13-19-05, 13-19-06 and 13-19-07


second-degree felony. (Case No. 18CR0145, Doc. No. 1). Chavez appeared for

arraignment on July 26, 2018 and entered a plea of not guilty to the indictment.

(Case No. 18CR0145, Doc. No. 8).

       {¶6} On July 25, 2018, the State filed a motion requesting that the trial court

revoke Chavez’s community control in case numbers 16CR0210 and 16CR0211

after Chavez was indicted in case number 18CR0145. (Case No. 16CR0210, Doc.

No. 37); (Case No. 16CR0211, Doc. No. 38). At his preliminary-revocation hearing

on September 4, 2018, the trial court concluded that there was probable cause that

Chavez violated his community-control sanctions. (Case No. 16CR0210, Doc. No.

42); (Case No. 16CR0211, Doc. No. 43).

       {¶7} Case number 18CR0145 proceeded to a jury trial on January 17 and 18,

2019. At trial, the State presented the testimony of Poole, who testified that Chavez

assaulted him on February 3, 2018. (Jan. 17, 2019 Tr., Vol. I, at 110). Poole

testified that, on February 3, 2018, Chavez accompanied him to assist a neighbor,

David Bisbee (“Bisbee”), with his vehicle. (Id. at 111-112). While Poole was

assisting Bisbee, Chavez left the two men. (Id. at 112). Five-to-ten minutes later,

Poole and Bisbee decided to “go to town,” which required Poole to return to his

home to retrieve his wallet. (Id. at 112-113). Poole testified that he discovered that

$51.00 was missing from his wallet. (Id. at 113). As a result of the missing money,




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Poole assumed that Chavez took the money and “went to his house to confront him.”

(Id. at 114).

       {¶8} Once he arrived at Chavez’s residence, Poole knocked on the door and

Chavez’s father, Emilio Chavez (“Emilio”), invited him into the residence. (Id. at

115). Once inside, Emilio informed Poole that Chavez was “in his room.” (Id.).

According to Poole, he asked Chavez if he took the money and Chavez responded

by throwing “a hundred dollar bill on the floor and say[ing], I don’t need your

money. I got my own money. And then he just started beating [Poole] and beating

[him] and beating [him]” on his “face” and “head.” (Id. at 116-118). (See also id.

at 126). Poole testified that he eventually got away from him but that “[h]e beat

[him] all the way home. He beat [him] at home.” (Id. at 118). Poole further testified

that he “finally got in [his] house,” then Chavez broke his “door down” and “[b]eat

[him] again.” (Id. at 119). According to Poole, Chavez beat him “probably 20

minutes.” (Id. at 117). Poole testified that he did not hit or shove Chavez prior to

Chavez beating him and that he did not try to fight back. (Id. at 118). (See also id.

at 122). Poole further testified that he did not break into Chavez’s residence; that

he did not have a weapon; and that he did not cause Chavez to believe that he had a

weapon. (Id. at 122-123).

       {¶9} On cross-examination, Poole testified that he consumed “[a]bout a six

pack” of alcohol on the day of the altercation. (Id. at 128). Poole testified that,


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notwithstanding his report to law enforcement that he discovered that “the front door

of his trailer had been kicked in” at the time that he “went back to his residence to

get his wallet” to accompany Bisbee to town, Chavez was the one who “kicked [his]

door down” during the altercation. (Id. at 126-127); (Defendant’s Ex. A). Poole

further testified that, notwithstanding blood-spatter evidence that was discovered

outside of his trailer and his statement that Chavez “beat [him] in [his] trailer,” no

blood was found inside the trailer. (Jan. 17, 2019 Tr., Vol. I, at 127). Likewise,

notwithstanding his report to law enforcement that “$91.00 was missing” from his

wallet, Poole asserted at trial that $51.00 was missing from his wallet. (Id. at 127).

       {¶10} The next witness to testify was Deputy Troy Callahan (“Deputy

Callahan”) of the Seneca County Sheriff’s Office. Deputy Callahan testified that he

was dispatched to Poole’s residence in response to Poole’s 911 emergency call. (Id.

at 139). When Deputy Callahan arrived at Poole’s residence, Poole informed him

that Chavez “had beaten him up.” (Id. at 140). He testified that he investigated

Poole’s allegations and discovered “blood spatter that was dripped on the sidewalk”

between Chavez’s and Poole’s residences; “blood spatter on the stairs going up into”

Poole’s residence; and “smeared blood on the handrail” outside Chavez’s residence.

(Id. at 143). (See State’s Exs. 4, 5, 6, 7, 8, 9, 10). However, Deputy Callahan did

not observe any blood in Poole’s residence. (Jan. 17, 2019 Tr., Vol. I, at 151, 152-

153). Deputy Callahan interviewed Chavez who informed him that “he didn’t


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remember anything” regarding the February 3, 2018 incident.                                 (Id. at 148).

According to Deputy Callahan, Chavez did not report that Poole harmed him or

threw anything at him. (Id. at 150).

           {¶11} On cross-examination, Deputy Callahan testified that Poole’s story

changed. (Id. at 153, 154-155, 160). Specifically, Deputy Callahan testified that

Poole initially told him that the assault occurred at Chavez’s residence, “then he also

stated it happened at his [residence].” (Id. at 153). Similarly, Deputy Callahan

testified that Poole initially stated that $91.00 was missing from his wallet, then later

stated that $51.00 was missing. (Id. at 154-155). Also, Deputy Callahan testified

that Poole’s story “about the timing of the door kick in” was inconsistent with

Poole’s testimony. (Id. at 160). That is, Poole initially told him that he “found that

the front door of his trailer had been kicked in” when he returned to his residence to

retrieve his wallet to accompany Bisbee into town. (Id. at 159).

           {¶12} However, on re-direct examination, Deputy Callahan testified that the

inconsistencies in Poole’s story could be explained by the timing of his interview

with Poole. (Id. at 161). That is, Deputy Callahan interviewed Poole about the

incident while Poole was being treated and loaded into an ambulance.2 (Id.).

           {¶13} Chavez testified in his defense.                  (Id. at 173).       Initially, Chavez

described his relationship with Poole. (Id. at 176). Specifically, Chavez testified



2
    Deputy Callahan’s report reflects that he also interviewed Poole on February 6, 2018. (Defendant’s Ex. A).

                                                      -7-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


that he and Poole “have had an ongoing thing for a long time. [Chavez] wrote a

statement on him for when he was * * * alleged of killing his dad, hitting him and

killing him and they did an investigation. [Chavez] wrote a statement on him and

he’s had this thing for [him] since then.” (Id.).

       {¶14} Chavez testified that, on the day of the incident, he was assisting

Bisbee with his vehicle when Poole “came in the residence and he was intoxicated.”

(Id.). Because of Poole’s animosity toward him, Chavez left Bisbee’s residence and

returned home. (Id.). Chavez testified that he observed Poole and Bisbee leave

Bisbee’s residence, drive to Poole’s residence, “and that’s when he observed his

door kicked in and the money missing.” (Id. at 179).

       {¶15} Thereafter, according to Chavez, Poole came to his residence to

“confront” him. (Id. at 180). After Emilio invited Poole to enter, Chavez greeted

Poole in the living room. (Id. at 177). According to Chavez, Poole began “pointing

fingers,” calling him vulgar names, and accused him of being a “thief.” (Id. 177-

178). In response, Chavez “pulled a hundred dollar bill out of [his] pocket,”

“handed [Poole] the hundred dollar bill and he took it,” and then he “crumpled it up

and that’s when it hit the floor.” (Id. at 178). After Poole discarded the money,

Chavez “got so sick of being called a thief” and other vulgar names that he decided

to accompany Poole to Poole’s residence to search for the missing money. (Id.).




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Case Nos. 13-19-05, 13-19-06 and 13-19-07


       {¶16} While Chavez was searching Poole’s residence for the missing money,

Poole “was on the phone with his younger son, Tommy.” (Id. at 178-179). When

Poole ended the phone call, he ordered Chavez out of his residence. (Id. at 179).

Chavez testified that he complied with Poole’s request and, as he was exiting the

trailer, “a shot glass fl[ew] by the side of [his] head.” (Id.). He testified, “[a]t that

time [he] went straight out the door.” (Id.). Chavez further testified that Bisbee

“was still sitting outside” so Chavez “walked up to Mr. Bisbee’s car and said, he

told me to go the fuck home. He told me to tell you to go home. That we’re all liars

and thieves.” (Id. at 180). According to Chavez, Bisbee witnessed that he “had no

blood on [his] hands” and his “clothes weren’t ripped.” (Id.).

       {¶17} Chavez returned to his residence; closed the front door (without

locking it); and went to his room (where his girlfriend, Cassie Lawrence

(“Lawrence”), and her daughter were) to go to bed. (Id. at 181). Chavez testified

that he “woke up to [his front] door slamming against a table that sits right behind

it.” (Id. at 181-182). The noise also woke Lawrence and her daughter. (Id. at 182).

Chavez said that he instructed Lawrence and her daughter to stay in the room, but

Lawrence instead followed him to investigate the noise. (Id.). Chavez described

that they “had sheets hanging at the end of the hallway to keep the heat in the living

room * * *.” (Id.). He also described that there were “no lights on in [the] house at

this time” except for “the nightlight for the kitchen.” (Id. at 182-183).


                                          -9-
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       {¶18} Chavez testified that he “opened the sheet” and “observed Russell

Poole coming straight at [him], screaming and yelling, and he had something in his

hand.” (Id. at 182). Chavez specifically described:

       He had something in his hand, and all I seen [sic] was a flash over.
       This guy just accused me of breaking into his house and taking his
       money and is highly intoxicated. You know, I didn’t know. It’s either
       fight or flight. Protect my family or run. And there’s nowhere to run.
       So I told him, I screamed, get the fuck out of my house. He lunged
       like this. I don’t know if he was just going to yell or what. But when
       he did this, I took it as a sign of aggression. I hit the man twice. He
       went back into the living room. * * * He comes back at me. I could
       see blood coming from his nose at this time. He went to swing at me
       again, or he went to go lunge at me again or grab me or whatever he
       was going to do. * * * [O]nce he tried to grab me, I grabbed him by
       his shirt, pushed him back and hit him two, maybe three more times.

(Id. at 183). Then, Chavez “ran him out the door” and tried to close the front door

to keep Poole out; however, the two men continued to scuffle over the door until

Chavez “heard [Poole] tumble * * * off the steps.” (Id. at 184).

       {¶19} According to Chavez, he did not report the incident to law

enforcement because he did not want Poole to get into trouble. (Id. at 187).

Moreover, Chavez testified that he was not contacted by law enforcement until more

than a month after the incident when he reported to Deputy Callahan his version of

events and that there were witnesses to the event. (Id. at 187-188). Chavez further

testified that Deputy Callahan “didn’t ask [him] to write a statement” or ask “who

[the] witnesses were nor did he try to follow-up with any of [his] witnesses.” (Id.

at 188).

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Case Nos. 13-19-05, 13-19-06 and 13-19-07


       {¶20} On cross-examination, Chavez testified that Poole’s front door was “in

working condition” because he heard Poole lock it after he left Poole’s residence

from helping Poole search for the missing money. (Id. at 194). He clarified that the

door was “never kicked in”; rather, it has “always been messed up, but it was able

to be locked.” (Id.). According to Chavez, he did not answer the door for law

enforcement because they did not announce that it was law enforcement knocking

on the door, and he was afraid that Poole was returning to continue the altercation.

(Id. at 198).

       {¶21} On re-direct examination, Chavez testified that he was not intoxicated

on the night of the incident. (Id. at 217).

       {¶22} Next, Chavez presented the testimony of Lawrence. (Id. at 218).

Lawrence testified that she witnessed Poole at the residence “accusing [Chavez] of

taking $61” and Chavez subsequently offering Poole “a hundred dollar bill.” (Id. at

219). According to Lawrence, Poole “threw it on the floor and said, I don’t want

your fucking money.” (Id.). She testified that Chavez then went with Poole to

Poole’s residence to search for the missing money. (Id.).

       {¶23} Lawrence further testified that, “[l]ater that night when [they] were all

in bed sleeping, [they] heard a bang” and she followed Chavez to the living room to

investigate the noise. (Id. at 220). She testified that she

       ended up looking from the blanket they have hanging up in the
       hallway, was peaking, and [Chavez] told [Poole] to get the fuck out

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Case Nos. 13-19-05, 13-19-06 and 13-19-07


        of his house. And [Poole] lunge shot him. [Chavez] hit him two times
        and told him to get * * * the fuck out of his house again. He wouldn’t.
        So [Chavez] hit him two more times. Threw him out the door, [Poole]
        tried to come back in. And [Chavez] ended up slamming the door,
        shut it and locked it.

(Id.). According to Lawrence, Poole “appeared to be really drunk” because “[h]e

was stumbling, slurring his words.” (Id. at 221). She testified that she was never

contacted by law enforcement regarding the incident. (Id. at 221).

        {¶24} On cross-examination, Lawrence testified that she saw Chavez punch

Poole only four times. (Id. at 228). She testified that she heard “pounding on the

door that night,” but did not “hear the Seneca County Sheriff’s Department come

knock at the door,” and did not know who was pounding on the door. (Id. at 228-

229).

        {¶25} As his final witness, Chavez presented the testimony of Emilio who

testified that he encountered Poole when Poole came to the residence to accuse

Chavez of stealing his money. (Id. at 235-236). Emilio testified that he asked Poole

“how could he steal some money when he already, he got paid [that day]?” (Id. at

236). Then, according to Emilio, he left the room to go to bed because he did not

want to argue with Poole. (Id.).

        {¶26} Emilio testified that Poole “came a second time” when “he tried to get

in” and Chavez confronted Poole. (Id.). He testified that he heard “arguing or

something and [Chavez] pushed [Poole] out.” (Id. at 237). And, he testified that he


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Case Nos. 13-19-05, 13-19-06 and 13-19-07


saw only “a little bit when [Poole] went out the door when he tried to get back in.

[Chavez] pushed him out. He might have hit him two or three times and that’s it

and he pushed him out.” (Id.).

      {¶27} On rebuttal, the State recalled Deputy Callahan, who testified that “it

was very clear that it was the sheriff’s office” knocking on Chavez’s residence and

that they “identified [themselves] as Deputy Callahan and Deputy Wheeler.” (Id. at

239-240).

      {¶28} The jury found Chavez guilty of felonious assault on January 18, 2019.

(Case No. 18CR0145, Doc. No. 49). (See also Case No. 18CR0145, Doc. No. 50).

      {¶29} At the final-revocation hearing in case numbers 16CR0210 and

16CR0211 on February 8, 2019, the trial court concluded that Chavez violated the

terms of his community-control sanctions after Chavez admitted that he violated the

terms of his community-control sanctions. (Case No. 16CR0210, Doc. No. 46);

(Case No. 16CR0211, Doc. No. 47). (See Feb. 8, 2019 Tr. at 6). Accordingly, the

trial court revoked Chavez’s community control and sentenced Chavez to 11 months

in prison in case number 16CR0210 and 11 months in prison in case number

16CR0211. (Id.); (Id.). The trial court ordered that Chavez serve the prison term

imposed in case number 16CR0210 consecutive to the prison term imposed in case

number 16CR0211. (Id.); (Id.).




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Case Nos. 13-19-05, 13-19-06 and 13-19-07


         {¶30} That same day (in case number 18CR0145), the trial court sentenced

Chavez to four years in prison and ordered that Chavez serve that prison term

consecutive to the consecutive-prison terms imposed in case numbers 16CR0210

and 16CR0211, for an aggregate sentence of four years and 22 months in prison.

(Case No. 18CR0145, Doc. No. 55). The trial court filed its judgment entries of

sentence on February 11, 2019.3 (Case No. 16CR0210, Doc. No. 46); (Case No.

16CR0211, Doc. No. 47); (Case No. 18CR0145, Doc. No. 55).

         {¶31} Chavez filed his notices of appeal on February 21, 2019 in case

numbers 16CR0210, 16CR0211, 18CR0145, which were consolidated for purposes

of appeal. (Case No. 16CR0210, Doc. No. 48); (Case No. 16CR0211, Doc. No. 50);

(Case No. 18CR0145, Doc. No. 58). He raises five assignments of error for our

review. We will begin by addressing Chavez’s fourth and fifth assignments of error

together, followed by his first, second, and third assignments of error.

                                  Assignment of Error No. IV

         Appellant’s conviction was not supported by legally sufficient
         evidence.
                           Assignment of Error No. V

         Appellant’s conviction was against the manifest weight of the
         evidence.




3
 The trial court filed a nunc pro tunc judgment entry of sentence correcting a clerical error in case number
16CR0211 on February 20, 2019. (Case No. 16CR0211, Doc. No. 49).

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       {¶32} In his fourth and fifth assignments of error, Chavez argues that his

felonious-assault conviction is based on insufficient evidence and is against the

manifest weight of the evidence. On appeal, Chavez does not dispute that the State

could prove the elements of felonious assault. Rather, Chavez contends that his

felonious-assault conviction is based on insufficient evidence and against the

manifest weight of the evidence because “the defense * * * produced legally

sufficient evidence by a preponderance of the evidence (greater weight of the

evidence) that [Chavez] acted lawfully in self-defense against a trespasser, with no

duty to retreat, and thus, should have been found not guilty.” (Appellant’s Brief at

19).

                                Standard of Review

       {¶33} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). As such, we address each legal concept individually.

       {¶34} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,


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“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

       {¶35} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,


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“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

                                                  Analysis

         {¶36} As an initial matter, Chavez’s challenge to the sufficiency of the

evidence as to self-defense is inappropriate. State v. Bagley, 3d Dist. Allen No. 1-

13-31, 2014-Ohio-1787, ¶ 10 (“Bagley’s challenge to the sufficiency of the evidence

as to self-defense is inappropriate.”), citing State v. Vasquez, 10th Dist. Franklin No.

13AP-366, 2014-Ohio-224, ¶ 52. “Self-defense is an affirmative defense, and the

accused bears the burden of proving it by a preponderance of the evidence.”4 Id. at

¶ 11, citing State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407, ¶ 4 (3d Dist.)

and R.C. 2901.05(A) (2008) (current version at R.C. 2901.05(A) (2019)). “‘The

“due process ‘sufficient evidence’ guarantee does not implicate affirmative

defenses, because proof supportive of an affirmative defense cannot detract from

proof beyond a reasonable doubt that the accused had committed the requisite

elements of the crime.”’” Id., quoting Vasquez at ¶ 52, quoting State v. Hancock,


4
  Subsequent to Chavez’s trial, R.C. 2901.05 was amended to require the “the prosecution [to] 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.” R.C. 2901.05(B)(1) (Mar. 28, 2019). See State v. Koch, 2d
Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103 (concluding that the defendant was “not entitled to
retroactive application of the burden shifting changes by the legislature to Ohio’s self-defense statute, R.C.
2901.05, as a result of H.B. 228”). See also State v. Crowe, 3d Dist. Allen No. 1-19-12, 2019-Ohio-3986, ¶
15, fn. 1.

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108 Ohio St.3d 57, 2006-Ohio-160, ¶ 37. Therefore, we address Chavez’s self-

defense argument only in our analysis of the manifest weight of the evidence. Id.,

citing Vasquez at ¶ 52.

       {¶37} Chavez was convicted of felonious assault in violation of R.C.

2903.11(A)(1); however, he does not dispute that the State proved the elements of

that offense. Rather, Chavez argues that the jury lost its way in concluding that he

did not act in self-defense.

       {¶38} “Affirmative defenses such as self-defense ‘“do not seek to negate any

elements of the offense which the State is required to prove” but rather they “admit[]

the facts claimed by the prosecution and then rel[y] on independent facts or

circumstances which the defendant claims exempt him from liability.”’” State v.

Oates, 3d Dist. Hardin No. 6-12-19, 2013-Ohio-2609, ¶ 10, quoting State v. Smith,

3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 32, quoting State v. Martin, 21 Ohio

St.3d 91, 94 (1986).

       {¶39} “The elements of self-defense differ depending on whether the

defendant used deadly or non-deadly force to defend himself.” Bagley at ¶ 15, citing

State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 25. “Deadly

force is ‘“any force that carries a substantial risk that it will proximately result in

the death of any person.”’”       Id., quoting Densmore at ¶ 28, quoting R.C.

2901.01(A)(2) (2017) (current version at R.C. 2901.01(A)(2) (2019)).                 A


                                         -18-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


“substantial risk” is “a strong possibility, as contrasted with a remote or significant

possibility, that a certain result may occur or that certain circumstances may exist.”

R.C. 2901.01(A)(8) (2017) (current version at R.C. 2901.01(A)(8) (2019)).

       To establish self-defense through the use of deadly force, an accused
       must prove: “(1) the accused was not at fault in creating the situation
       giving rise to the affray; (2) the accused had a bona fide belief that he
       or she was in imminent danger of death or great bodily harm and that
       the only means of escape from such danger was in the use of force;
       and (3) the accused must not have violated any duty to retreat or to
       avoid the danger.”

Bagley at ¶ 16, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-

1047, ¶ 14, citing State v. Williford, 49 Ohio St.3d 247, 249 (1990) and State v.

Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.

       {¶40} By contrast, to establish self-defense through the use of non-deadly

force, an accused must prove: (1) the accused was not at fault in creating the

situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide

belief that he was in imminent danger of any bodily harm; and (3) the only means

to protect himself from such danger was the use of force not likely to cause death or

great bodily harm. Accord State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-

Ohio-4019, ¶ 10; State v. Juntunen, 10th Dist. Franklin No. 09AP-1108, 2010-Ohio-

5625, ¶ 21; Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). See

In re J.J., 5th Dist. Licking No. 16 CA 44, 2016-Ohio-8567, ¶ 14; State v. Koch, 2d

Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 62; State. v. Jeffers, 11th Dist.


                                         -19-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


Lake No. 2007-L-011, 2008-Ohio-1894, ¶ 81. See also State v. Wagner, 3d Dist.

Seneca No. 13-15-18, 2015-Ohio-5183, ¶ 10. “In instances where less than deadly

force is used, the defendant need only show a fear of bodily harm, not of death or

great bodily harm.” State v. Brown, 2d Dist. Montgomery No. 27312, 2017-Ohio-

7424, ¶ 24, citing State v. Gee, 2d Dist. Miami No. 87-CA-22, 1987 WL 20260, *2

(Nov. 17, 1987) and State v. Perez, 72 Ohio App.3d 468, 472 (10th Dist.1991).

       Both versions of self-defense, however, use the term “great bodily
       harm”: self-defense involving deadly force uses the term to describe
       the level of harm the defendant must perceive before he or she is
       justified in using deadly force, while self-defense with non-deadly
       force uses the term to describe the level of force a defendant may not
       apply.

Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to retreat in cases

involving non-deadly force. Brown at ¶ 25, citing State v. Kucharski, 2d Dist.

Montgomery No. 20815, 2005-Ohio-6541, ¶ 21, citing Perez at 472. “‘[I]f there is

sufficient evidence on the issue of self-defense involving non-deadly force * * * the

trial court must instruct the jury on that defense.’” Jeffers at ¶ 76, quoting State v.

Griffin, 2d Dist. Montgomery No. 20681, 2005-Ohio-3698, ¶ 16, citing State v.

Ervin, 75 Ohio App.3d 275, 279 (8th Dist.1991).

       {¶41} Ohio’s “castle doctrine” creates an exception to the duty to retreat and

provides, in its relevant 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, or defense of that person’s residence.”        Brown at ¶ 25, citing R.C.

                                         -20-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


2901.09(B). The legislature extended the castle doctrine under R.C. 2901.05. State

v. Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 46, citing State v.

Carosiello, 7th Dist. Columbiana No. 15 CO 0017, 2017-Ohio-8160, ¶ 17. R.C.

2901.05—the statutory presumption of self-defense—provides

       that a defendant is entitled to a presumption of self-defense if the
       evidence shows that the defendant used defensive force against
       another person who was “in the process of unlawfully and without
       privilege to do so entering, or ha[d] unlawfully and without privilege
       to do so entered” the defendant’s residence.

State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-2229, ¶ 17,

quoting R.C. 2901.05(B)(1) (2008) (current version at R.C. 2901.05(B)(2) (2019)).

“This is a rebuttable presumption and may be rebutted by a preponderance of the

evidence that the victim had a right to be in the residence or the defendant was

unlawfully in the residence.” Id., citing State v. Lewis, 8th Dist. Cuyahoga No.

97211, 2012-Ohio-3684, ¶ 13, State v. Barnette, 12th Dist. Butler No. CA2012-05-

099, 2013-Ohio-990, ¶ 57, and R.C. 2901.05(B)(2), (3) (2008) (current version at

R.C. 2901.05(B)(3), (4) (2019)).

       {¶42} “‘The difference between the Castle Doctrine and the rebuttable

presumption of self-defense lies in the legal status of the victim.’” Id. at ¶ 18,

quoting Lewis, 2012-Ohio-3684, at ¶ 18. Specifically, if the victim is lawfully in a

residence at the time the defendant used deadly force, that defendant is not entitled

to the statutory presumption of self-defense. Id., citing Lewis at ¶ 19 and R.C.


                                        -21-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


2901.05(B)(1), (2) (2008) (current version at R.C. 2901.05(B)(2), (3) (2019)).

However, in those circumstances, the defendant is entitled to a castle-doctrine

instruction—if that defendant is lawfully occupying the residence at the time he or

she used the force. State v. Whitman, 5th Dist. Stark No. 2017CA00079, 2018-

Ohio-2924, ¶ 57, citing Lewis at ¶ 17-19 and State v. Bushner, 9th Dist. Summit No.

26532, 2012-Ohio-5996, ¶ 16. When the castle doctrine applies, a “defendant need

only establish the two remaining elements of a valid self-defense claim by a

preponderance of the evidence * * * .” Brown at ¶ 25, citing Dale at ¶ 18 and State

v. Johnson, 11th Dist. Lake No. 2005-L-03, 2006-Ohio-2380, ¶ 21.

       {¶43} Because the elements of self-defense are cumulative, a defendant fails

to demonstrate that he or she acted in self-defense if he fails to prove any one of the

applicable elements by a preponderance of the evidence. Bagley, 2014-Ohio-1787,

at ¶ 16, citing Thacker, 2004-Ohio-1047, at ¶ 14, citing State v. Jackson, 22 Ohio

St.3d 281, 284 (1986).

       {¶44} On appeal, Chavez contends that the evidence that he presented at trial

that he acted in self-defense is weightier than the evidence presented by the State

that he did not. In support of his argument that the weight of the evidence supports

that he acted in self-defense, Chavez points to the inconsistencies of Poole’s

testimony regarding (1) the lack of blood evidence found in Poole’s residence

despite his testimony that a portion of the assault occurred in his residence; (2) the


                                         -22-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


timing of Poole’s discovery that his front door had been “kicked in”; and (3) the

amount of money that Poole alleged to be missing from his wallet. Chavez further

alleges that Poole’s version of events was not credible because Poole “was drinking

alcohol earlier that day * * * .” (Appellant’s Brief at 20). In contrast, Chavez

contends that the weight of the evidence supports that he acted in self-defense

because he presented the testimony of two eye-witnesses who supported his version

of events. In sum, Chavez contends that his version of the incident is more credible

than Poole’s version.

       {¶45} “Although we review credibility when considering the manifest

weight of the evidence, the credibility of witnesses is primarily a determination for

the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671,

¶ 13, citing DeHass at paragraph one of the syllabus. “The trier of fact is best able

‘to view the witnesses and observe their demeanor, gestures[,] and voice inflections,

and use these observations in weighing the credibility of the proffered testimony.’”

Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).

       {¶46} Here, despite Poole’s inconsistent testimony, the jury also observed

Chavez’s, Lawrence’s, and Emilio’s testimony “and we are mindful of the jury’s

‘superior first-hand perspective in judging the demeanor and credibility of

witnesses.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33,


                                        -23-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 125,

citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. It is well within

the province of the trier-of-fact to determine the credibility of Poole’s, Chavez’s,

Lawrence’s, and Emilio’s testimony, including the prerogative to find Chavez’s

version of events (as supported by Lawrence’s and Emilio’s testimony) not to be

truthful. See State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-3900, ¶ 27.

Indeed, based on Lawrence’s and Emilio’s relationship with Chavez, the trier of fact

was free to credit or discount Lawrence’s or Emilio’s testimony because the trier of

fact is “patently in the best position to gauge the truth.” See State v. Smith, 5th Dist.

Licking No. 14 CA 83, 2015-Ohio-1610, ¶ 24 (concluding that the trier of fact was

free to reject Smith’s mother’s alibi defense because the trier of fact is “patently in

the best position to gauge the truth”), citing State v. Durbin, 5th Dist. Holmes No.

13 CA 2, 2013-Ohio-5147, ¶ 53. See also State v. Mitchell, 2d Dist. Montgomery

No. 20372, 2005-Ohio-912, ¶ 24 (concluding that the trier of fact “was free to credit

or discount” the alibi testimony of Mitchell’s girlfriend based on their relationship).

Likewise, the trier of fact was free to believe of disbelieve Poole’s testimony or

accept part of what Poole said and reject the rest. See State v. Saxton, 9th Dist.

Lorain Nos. 02CA008029 and 02CA008030, 2003-Ohio-3158, ¶ 36, citing State v.

Antill, 176 Ohio St. 61, 67 (1964).




                                          -24-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       {¶47} Therefore, although Poole was inconsistent in his testimony, the jury

weighed the inconsistences and found his version of events more credible than

Chavez’s version. See Banks at ¶ 16. Thus, based on the trier of fact’s weighing

the credibility of witnesses and the evidence presented at trial, we cannot say that it

lost its way in finding that Chavez did not act in self-defense.         Id. at ¶ 17.

Accordingly, Chavez’s felonious-assault conviction is not against the manifest

weight of the evidence.

       {¶48} Chavez’s fourth and fifth assignments of error are overruled.

                            Assignment of Error No. I

       The State of Ohio elicited testimony/evidence that improperly
       commented upon the Appellant’s right to remain silent in
       violation of Appellant’s legal rights, State and Federal
       Constitutional rights, and/or Due Process rights and thus, was
       denied a fair trial.

       {¶49} In his first assignment of error, Chavez argues that his right to remain

silent was violated when the State improperly addressed Chavez’s refusal to speak

with law-enforcement officers during their investigation.

                                 Standard of Review

       {¶50} “The right to remain silent is conferred by the United States and the

Ohio Constitutions.” State v. Graber, 5th Dist. Stark No. 2002CA00014, 2003-

Ohio-137, ¶ 78. “The privilege against self-incrimination ‘is fulfilled only when the

person is guaranteed the right “to remain silent unless he chooses to speak in the


                                         -25-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


unfettered exercise of his own will.”’” Id., quoting Miranda v. Arizona, 384 U.S.

436, 460, 86 S.Ct. 1602 (1966), quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct.

1489, (1964). See also State v. Plott, 3d Dist. Seneca No. 13-15-39, 2017-Ohio-38,

¶ 86, citing Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240 (1976). “This rule

enforces one of the underlying policies of the Fifth Amendment, which is to avoid

having the jury assume that a defendant’s silence equates with guilt.” State v. Perez,

3d Dist. Defiance No. 4-03-49, 2004-Ohio-4007, ¶ 10, citing State v. Leach, 102

Ohio St.3d 135, 2004-Ohio-2147, ¶ 30, citing Murphy v. Waterfront Comm. of New

York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594 (1964). “However, the introduction

of evidence regarding a defendant’s decision to remain silent does not constitute

reversible error if, based on the whole record, the evidence was harmless beyond

any reasonable doubt.” State v. Zimmerman, 18 Ohio St.3d 43, 45 (1985).

       {¶51} Because Chavez did not object to any of the evidence of which he

contends violated his right to remain silent, he waived all but plain error on appeal.

See State v. Perkins, 3d Dist. Hancock No. 5-13-01, 2014-Ohio-752, ¶ 48; Graber

at ¶ 126. “‘Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”’”

State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 69, quoting State

v. Walburg, 10th Dist. Franklin No. 10AP-1087, 2011-Ohio-4762, ¶ 47. “We

recognize plain error with the utmost caution, under exceptional circumstances, and


                                         -26-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


only to prevent a manifest miscarriage of justice.” Id., citing State v. Vielma, 3d

Dist. Paulding No. 11-11-03, 2012-Ohio-875, ¶ 34, citing State v. Landrum, 53 Ohio

St.3d 107, 110 (1990). “‘For plain error to apply, the trial court must have deviated

from a legal rule, the error must have been an obvious defect in the proceeding, and

the error must have affected a substantial right.’” Id., quoting Vielma at ¶ 34, citing

State v. Barnes, 94 Ohio St.3d 21, 27 (2002). See also Perkins at ¶ 48, citing Barnes

at 27. “‘Under the plain error standard, the appellant must demonstrate that the

outcome of his trial would clearly have been different but for the trial court’s

errors.’” (Emphasis added.) Harrison at ¶ 69 quoting Vielma at ¶ 34, citing State

v. Waddell, 75 Ohio St.3d 163, 166 (1996).

                                       Analysis

       {¶52} The use of a defendant’s pre-arrest, pre-Miranda silence “as

substantive evidence of guilt violates the Fifth Amendment privilege against self-

incrimination.” Leach at syllabus. That is, using “a defendant’s prior silence as

substantive evidence of guilt actually lessens the prosecution’s burden of proving

each element of the crime and impairs the ‘sense of fair play’ underlying the

privilege.” Id. at ¶ 33.

       {¶53} On appeal, Chavez alleges three instances in which he contends that

his right to remain silent was violated. First, Chavez argues that the State violated

his constitutional rights when the State elicited testimony from Deputy Callahan


                                         -27-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


stating that he “went to [Chavez’s] residence and ‘banged’ on the door, yelled

“[Chavez] we know you’re in there, come on out, talk to us’, but there was no

response” and that “someone from inside [Chavez’s] residence opened the blind a

little, then closed and locked the door.” (Appellant’s Brief at 12, quoting Jan. 17,

2019 Tr., Vol. I, at 129, 138-147, 150-155, 159-162). Similarly, Chavez argues that

the State improperly elicited testimony from Deputy Callahan that Chavez did not

report to him anything about the incident—namely, that Poole “broke into” his

residence, which resulted in him defending himself. (Appellant’s Brief at 13).

       {¶54} Although introduced during the State’s case-in-chief, this evidence

does not violate Chavez’s right to remain silent. “[I]n limited circumstances,

testimony of pre-arrest silence is appropriate if it is introduced as evidence of the

‘course of the investigation.’” State v. Pence, 12th Dist. Warren No. CA2012-05-

045, 2013-Ohio-1388, ¶ 16, quoting Leach at ¶ 32. Here, when reviewed in context,

the State was eliciting testimony from Deputy Callahan for purposes of describing

the course of his investigation.      Compare id. at ¶ 17 (concluding that law

enforcement’s “testimony regarding his phone call to [Pence] and [Pence’s] failure

to return the call may have been a ‘legitimate’ response to the state’s questions about

the investigation”). See Graber, 2003-Ohio-137, at ¶ 130 (concluding that the law

enforcement officer’s testimony that Graber did not want to speak with him at the

time he was conducting its investigation did not amount to plain error). Therefore,


                                         -28-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


because the evidence was not introduced as substantive evidence of Chavez’s guilt,

Chavez’s right to remain silent is not implicated in these instances.

       {¶55} Finally, Chavez contends that the State improperly asked him on

cross-examination why he did not report the incident to law enforcement. Chavez’s

argument is specious.     A defendant’s pre-arrest, pre-Miranda silence may be

introduced for impeachment purposes. State v. Collins, 7th Dist. Columbiana No.

10 CO 10, 2011-Ohio-6365, ¶ 17. See Leach at ¶ 21, citing Jenkins v. Anderson,

447 U.S. 231, 238, 240, 100 S.Ct. 2124 (1980). “[U]se of pre-arrest silence as

impeachment evidence is permitted because it furthers the truth-seeking process.

Otherwise, a criminal defendant would be provided an opportunity to perjure

himself at trial, and the state would be powerless to correct the record.” Leach at ¶

33. Indeed, “‘impeachment follows the defendant’s own decision to cast aside his

cloak of silence and advances the truth-finding function of the criminal trial.’” Id.

at ¶ 22, quoting Jenkins at 238. Here, the State’s questions of Chavez on cross-

examination amount to impeachment evidence, which does not violate Chavez’s

right to remain silent. See id. at ¶ 21 (noting that “neither the Fifth Amendment

right to be free from self-incrimination nor the Fourteenth Amendment right to due

process is [sic] violated by the use of pre-arrest silence to impeach a criminal

defendant’s credibility”), citing Jenkins at 238, 240.

       {¶56} Therefore, Chavez’s first assignment of error is overruled.


                                        -29-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


                           Assignment of Error No. II

        Trial Counsel did not request, and the Trial Court did not
        provide, proper Jury Instructions and Verdict for regarding self-
        defense and, considering the recently amended self-defense law,
        Appellant was denied a fair trial.

        {¶57} In his second assignment of error, Chavez argues that the trial court

erred by providing an incomplete and inaccurate self-defense jury instruction and

verdict form to the jury. Similarly, Chavez argues in his second assignment of error

that his trial counsel was ineffective for failing to request a self-defense jury

instruction and verdict form that represent correct statements of law. Chavez also

challenges the fairness of his trial as to the version of the self-defense law applied

to his trial.

                        Jury-Instruction Standard of Review

        {¶58} Generally, appellate courts review alleged errors in jury instructions

for an abuse of discretion. State v. Blanton, 3d Dist. Seneca No. 9-15-07, 2015-

Ohio-4620, ¶ 55, citing State v. Guster, 66 Ohio St.2d 266, 271 (1981). An abuse

of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

        {¶59} However, because Chavez did not object to the trial court’s self-

defense instruction to the jury, he waived all but plain error on appeal. Harrison,

2015-Ohio-1419, at ¶ 69; State v. Wright, 6th Dist. Lucas No. L-16-1053, 2017-

Ohio-1225, ¶ 26. See also State v. Robinson, 8th Dist. Cuyahoga No. 102766, 2016-

                                        -30-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


Ohio-808, ¶ 9. As we previously addressed, in order for there to be plain error, the

error must have been an obvious defect in the proceeding and affected a substantial

right. Harrison, 2015-Ohio-1419, at ¶ 69, quoting Vielma, 2012-Ohio-875, at ¶ 34,

Barnes, 94 Ohio St.3d at 27. Under the plain-error standard, we will only reverse

if, but for the trial court’s errors, the outcome of the defendant’s trial would clearly

have been different. Id., quoting Vielma at ¶ 34, citing Waddell, 75 Ohio St.3d at

166.

                              Jury-Instruction Analysis

       {¶60} At trial, the trial court instructed the jury on self-defense as follows:

            Self-defense. The defendant claims to have acted in self-
       defense. To establish a claim of self-defense, the Defendant, Mr.
       Chavez, must prove by the greater weight of the evidence that:

            (A) he was not at fault in creating the situation giving rise to the
       serious physical harm to the victim; and

            (B) was in his residence.

            Subsection (C) doesn’t apply.

             So Subsection (D). This is the third part. A person who lawfully
       is in his residence has no duty to retreat before using force in self-
       defense.

           Residence means a dwelling in which a person resides either
       temporarily or permanently or is visiting as a guest.

             Dwelling means a building of any kind that has a roof over it and
       that is designed to be occupied by people lodging in the building at
       night, regardless of whether the building is temporary or permanent
       or is mobile or immobile.

                                         -31-
Case Nos. 13-19-05, 13-19-06 and 13-19-07



            If you find that the State proved beyond a reasonable doubt all
       the essential elements of the offense of Felonious Assault, your
       verdict must be guilty.

           If you find that the State failed to prove beyond a reasonable
       doubt any one of the essential elements of the offense of Felonious
       Assault, then your verdict must be not guilty.

(Jan. 18, 2019 Tr., Vol, II, at 276-278). The verdict form provided to the jury

reflects a blank line for the insertion of “guilty” or “not guilty.” That verdict form

does not reflect any instruction or separate finding for self-defense. (See Doc. No.

49).

       {¶61} We need not review whether the trial court committed any error in its

instruction or verdict form because Chavez agreed to the trial court’s jury

instructions and verdict form. (See Jan. 18, 2019 Tr., Vol. II, at 248). “Under the

invited-error doctrine, a party will not be permitted to take advantage of an error

that he himself invited or induced the trial court to make.” State ex rel. Beaver v.

Konteh, 83 Ohio St.3d 519, 521 (1998). See State v. Brown, 5th Dist. Muskingum

No. CT2013-0004, 2013-Ohio-3608, ¶ 53 (“In reviewing a claim on appeal that a

jury instruction requested by the defendant and given by the trial court was

reversible error, under the ‘invited error doctrine,’ a party may not request a jury

instruction and then later complain on appeal that requested instruction was

given.”), citing Walker v. State, 5th Dist. Stark No. 2007CA00037, 2007-Ohio-

5262, ¶ 51. Here, any error with the trial court’s jury instruction on self-defense

                                        -32-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


and verdict form were invited by Chavez. See State v. Dawson, 8th Dist. Cuyahoga

No. 104509, 2017-Ohio-965, ¶ 38 (concluding that, to the extent that any error

occurred with the trial court’s jury instructions on aggravated assault and self-

defense, those errors were invited by Dawson); Vu, 2010-Ohio-4019, at ¶ 20

(“However, even if the trial court had erred by instructing the jury as it did, appellant

could not complain because he invited the error by requesting the instruction.”),

citing State v. Bey, 85 Ohio St.3d 487, 493 (1999); State v. Travis, 9th Dist. Summit

No. 22737, 2006-Ohio-1048, ¶ 9 (concluding that any error “regarding the jury

instruction was invited error” because Travis “requested the jury instruction that

was actually given”). Thus, Chavez cannot now take advantage of any error with

the trial court’s jury instructions or verdict form.

       {¶62} Having concluded that Chavez cannot claim any error with respect to

the trial court’s jury instruction on self-defense, we next address Chavez’s argument

that his trial counsel was ineffective for requesting a defective jury instruction on

self-defense and a defective verdict form.

             Ineffective-Assistance-of-Trial-Counsel Standard of Review

       {¶63} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,


                                          -33-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.              Strickland at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989),

quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other

grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978). Generally, the failure to request a

particular jury instruction or the failure to object to a trial court’s jury instruction is

a matter of trial strategy. See State v. Huff, 5th Dist. Stark No. 2006CA00081, 2007-

Ohio-3360, ¶ 63; State v. Byrd, 10th Dist. Franklin No. 17AP-387, 2018-Ohio-1069,

¶ 54, citing State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265, 2017-

Ohio-2671, ¶ 56, citing State v. Morris, 9th Dist. Summit No. 22089, 2005-Ohio-

1136, ¶ 100.

       {¶64} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been


                                           -34-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

                  Ineffective-Assistance-of-Trial-Counsel Analysis

       {¶65} In this case, Chavez contends that his trial counsel was ineffective for

agreeing to a jury instruction that was not only a misstatement of law, but not in

accordance with the Ohio Jury Instructions relating to self-defense. In particular,

Chavez contends that the jury instruction on self-defense to which his trial counsel

agreed was deficient because it failed to include the reasonable-belief language; the

tests-for-reasonableness instruction; and the presumption-when-in-residence-or-

vehicle instruction. Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16,

2006); Ohio Jury Instructions, CR Section 421.23 (Rev. Aug. 16, 2006); Ohio Jury

Instructions, CR Section 421.24 (Rev. Oct. 20, 2012). Likewise, Chavez contends

that his trial counsel was ineffective for failing to request a verdict form that did not

contain burden-shifting language or any self-defense finding.

       {¶66} Ohio’s jury instruction on deadly force provides, in its relevant part,

as follows:

       2. SELF DEFENSE. The defendant claims to have acted in self
       defense. To establish a claim of self defense, the defendant must prove
       by the greater weight of the evidence that


                                          -35-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       (A) he/she was not at fault in creating the situation giving rise to
       (describe the event in which death or injury occurred); and

       (B) he/she had reasonable grounds to believe and an honest belief,
       even if mistaken, that he/she was in (imminent) (immediate) danger
       of death or great bodily harm, and that his/her only reasonable means
       of (retreat) (escape) (withdrawal) from such danger was by the use of
       deadly force; and

       (C) he/she had not violated any duty to (retreat) (escape) (withdraw)
       to avoid the danger.

(Emphasis sic.) Ohio Jury Instructions, CR Section 421.19 (Rev. Oct. 11, 2008).

Likewise, Ohio’s jury instruction on non-deadly force provides, in its relevant part,

as follows:

       2. SELF-DEFENSE. The defendant claims to have acted in self-
       defense. To establish that he/she was justified in using force not likely
       to cause death or great bodily harm, the defendant must prove by the
       greater weight of the evidence that:

       (A) he/she was not at fault in creating the situation giving rise to
       (describe the event in which the use of non-deadly force occurred);
       and

       (B) he/she had reasonable grounds to believe and an honest belief,
       even if mistaken, that he/she was in (imminent) (immediate) danger
       of bodily harm.

(Emphasis sic.) Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16, 2006).

       {¶67} Because the jury instruction to which Chavez’s trial counsel agreed

includes duty-to-retreat language, we must first determine whether it was error for

Chavez’s trial counsel to not request a non-deadly-force instruction. In Ohio, “[a]

single punch, standing alone, may not constitute deadly force.” (Emphasis added.)

                                         -36-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


Jeffers, 2008-Ohio-1894, at ¶ 81, citing Perez, 72 Ohio App.3d at 470-472. See

State v. Davis, 10th Dist. Franklin No. 17AP-438, 2018-Ohio-58, ¶ 25, citing State

v. Triplett, 192 Ohio App.3d 600, 2011-Ohio-816, ¶ 14 (8th Dist.), State v. Mendoza,

10th Dist. Franklin No. 16AP-893, 2017-Ohio-8977, ¶ 91-94, Perez at 470, State v.

Palmer, 10th Dist. Franklin No. 12AP-460, 2013-Ohio-5970, ¶15, and Struthers v.

Williams, 7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-6637, ¶ 14-16. See also

In re J.J., 2016-Ohio-8567, at ¶ 14-16. “However, the act of delivering multiple

punches, in succession, to another’s head may rise to the level of deadly force.”

(Emphasis added.) Jeffers at ¶ 78, citing State v. Watson, 8th Dist. Cuyahoga No.

87281, 2006-Ohio-5738, ¶ 27. A situation presenting “a very close call as to

whether [a defendant] used deadly or non-deadly force” raises a factual

determination, which is within the purview of the jury. Id. at ¶ 78. See id. at ¶ 75

(noting that “the question of whether [the defendant] used deadly force was a factual

determination within the purview of the jury”), citing State v. Jackson, 10th Dist.

Franklin No. 00AP-444, *10 (Dec. 14, 2000) and State v. Gee, 2d Dist. Miami No.

87-CA-22, 1987 WL 20260, *5 (Nov. 17, 1987). Those factual determinations

include (1) whether there “was a ‘strong possibility, as contrasted with a remote or

significant possibility,’ that the force used by” a defendant would proximately result

in the death of the victim; and (2) whether the force used by the defendant was likely

to cause death or great bodily harm. Id. at ¶ 78. See id. at ¶ 77 (noting that “the


                                        -37-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


question for the jury was whether there was a ‘strong possibility, as contrasted with

a remote or significant possibility,’ that the force used by [the defendant] would

cause the death of [the victim]”), quoting R.C. 2901.01(A)(8) (2017) (current

version at R.C. 2901.01(A)(8)).

       {¶68} The facts and circumstances presented by this case presented a “very

close call” as to whether Chavez used deadly or non-deadly force. Accord id. at ¶

4, 78 (concluding that the defendant’s act of punching the victim in the face, causing

the victim to fall “onto the floor” and hit his head hard enough on the wall “to knock

a hole in the drywall,” followed by the defendant jumping on top of the victim and

punching “him in the face or head seven to ten more times” “presented a very close

call as to whether [the defendant] used deadly or nondeadly force”). Accordingly,

it was for the jury to determine (1) whether there “was a ‘strong possibility, as

contrasted with a remote or significant possibility,’ that the force used by” Chavez

would proximately result in the death of Poole; and (2) whether the force used by

Chavez was likely to cause death or great bodily harm. Id. at ¶ 78.

       {¶69} However, Chavez was not prejudiced by any failure on the part of his

trial counsel for failing to request that the jury consider whether Chavez acted with

deadly or non-deadly force. That is, Chavez does not dispute that he is guilty of

felonious assault in violation of R.C. 2903.11(A), which required the trier of fact to

find that he knowingly caused Poole serious physical harm. See id. at ¶ 81, citing


                                        -38-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


R.C. 2903.11(A)(1). See also State v. Cole, 1st Dist. Hamilton No. C-950900, 1997

WL 22659, *10 (Jan. 22, 1997) (noting that “[a] claim of self-defense does nothing

to negate any of the elements of the crimes charged”), citing State v. Martin, 21

Ohio St.3d 91, 93 (1986); Dale, 2013-Ohio-2229, at ¶ 27. Indeed, Chavez does not

dispute that he punched Poole in the head and face four-to-five times, resulting in

the loss of “several teeth * * * , stiches to his lip, use of a needle to remove blood

from behind his eye (he still has vision in both eyes but with some issues), and

migraine[ headaches] * * *.” (Appellant’s Brief at 8-10); (Jan. 17, 2019 Tr., Vol. I,

at 183); (Jan. 18, 2019 Tr., Vol. II, at 252). Thus, for Chavez to succeed on a defense

of self-defense through the use of non-deadly force, the trier of fact would have to

find that he “‘was justified in using force not likely to cause death or great bodily

harm.’” (Emphasis added.) Jeffers at ¶ 81, quoting Ohio Jury Instructions, CR

Section 411.33 (Rev. Aug. 16, 2006) (current version at Ohio Jury Instructions, CR

Section 421.21 (Rev. Aug. 16, 2006)). Although the term “great bodily harm” is

not statutorily defined, Ohio courts of appeal have concluded that the term is

substantially similar to “serious physical harm,” which is statutorily defined. See In

re J.J., 2016-Ohio-8567, at ¶ 15, citing Juntunen, 2010-Ohio-5625, at ¶ 22, Jeffers

at ¶ 81, and State v. Herrera, 6th Dist. Ottawa No. OT-05-039, 2006-Ohio-3053, ¶

53; R.C. 2901.01(A)(5) (2017) (current version at R.C. 2901.01(A)(5) (2019)). See




                                         -39-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


also State v. Bennett, 2d Dist. Montgomery No. 27943, 2019-Ohio-2996, ¶ 48, fn. 6

(Froelich, J., dissenting).

       {¶70} Accordingly, if the jury were to find that the force used by Chavez was

not likely to cause great bodily harm, that finding would be inconsistent with its

prior determination that Chavez knowingly caused Poole serious physical harm. See

Jeffers at ¶ 81; Triplett at ¶ 17, fn. 3 (Rocco, P.J., concurring in part and dissenting

in part). Therefore, there is no reasonable probability that Chavez would have been

able to prove that he acted in self-defense through the use of non-deadly force

because he is unable to prove that he used force not likely to cause death or great

bodily harm. See In re J.J. at ¶ 14-16 (concluding that a defendant fails to carry his

burden of proving that he acted in self-defense through the use of non-deadly force

if he caused the victim serious physical harm). See also Mendoza, 2017-Ohio-8977,

at ¶ 91-94.

       {¶71} Thus, we turn to whether the deadly-force instruction to which

Chavez’s trial counsel agreed is a correct statement of the pertinent law as is

appropriate to the facts of this case. Here, Chavez contends that the jury instruction

to which his trial counsel agreed lacks the reasonable-belief language; the statutory

presumption of self-defense; and reasonableness test. First, based on our review of

the jury instruction to which Chavez’s trial counsel agreed, we agree that the

instruction lacks the reasonable-belief element of “the basic” self-defense standard.


                                         -40-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


See Williford, 49 Ohio St.3d at 249. That is, there is no mention that the jury was

to consider whether Chavez had reasonable grounds to believe, even if mistaken,

that he was in imminent danger of death or great bodily harm and that the only

means of escape from such danger was in the use of force. See, e.g., Bagley, 2014-

Ohio-1787, at ¶ 16. Accordingly, absent the reasonable-belief element, the jury

instruction to which Chavez’s trial counsel agreed is an incomplete statement of

law. See State v. McDuffie, 8th Dist. Cuyahoga No. 100826, 2014-Ohio-4924, ¶ 14.

See also Dale at ¶ 20, 27; Lewis, 2012-Ohio-3684, at ¶ 17, 19; Kucharski, 2005-

Ohio-6541, at ¶ 21-22.

       {¶72} Next, Chavez contends that his trial counsel was ineffective for failing

to request that the trial court instruct the jury of the statutory presumption of self-

defense.   That is, Chavez argues that, although the jury instruction to which

Chavez’s trial counsel agreed properly instructed the jury that he had no duty to

retreat while lawfully in his residence, his trial counsel failed to request that the trial

court instruct the jury that Chavez was presumed to have acted in self-defense

because Poole (under Chavez’s version of the incident) unlawfully entered Chavez’s

residence. Moreover, Chavez argues that his trial counsel should have requested

that the jury be instructed as to the statutory presumption or provided Ohio’s jury

instruction on the statutory presumption of self-defense. That instruction provides,

in its relevant part, as follows:


                                           -41-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       2. PRESUMPTION-DESCRIBED. The defendant is presumed to
       have acted in (self defense) * * * when using defensive force that was
       (intended) (likely) to cause death or great bodily harm to another if
       the person against whom the defensive force was used (was in the
       process of entering) (had entered), unlawfully and without privilege
       to do so, the (residence) * * * occupied by the defendant.

Ohio Jury Instructions, CR Section 421.24 (Rev. Oct. 20, 2012).

       {¶73} We agree. See Dale at ¶ 27. There was conflicting evidence presented

at trial as to whether Poole was lawfully in Chavez’s residence at the time Chavez

used the force.    Compare Williford at 250 (concluding that a duty-to-retreat

instruction was warranted because there was conflicting testimony as to whether

Williford lured the victim to the porch before killing him, or whether Williford

killed the victim in self-defense) with State v. Nye, 3d Dist. Seneca No. 13-13-05,

2013-Ohio-3783, ¶ 29 (concluding that Nye was not entitled to the statutory-

presumption instruction because the evidence “did not establish that [the victim]

was in the process of invading Nye’s vehicle when Nye assaulted him”) and State

v. Guice, 10th Dist. Franklin No. 18AP-305, 2019-Ohio-1324, ¶ 40 (concluding that

the statutory presumption did not apply because there was no dispute that the victim

lawfully entered the defendant’s premises). Specifically, Poole testified that Emilio

invited him into the residence prior to the altercation, while Chavez testified that he

awoke to Poole entering the residence without permission—a version which was

bolstered by Lawrence’s and Emilio’s testimony.           Therefore, based on that

evidence, it was error to fail to request the statutory-presumption instruction or any

                                         -42-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


instruction as to the statutory presumption because it rendered the jury instructions

incomplete. Accord State v. Hadley, 3d Dist. Marion No. 9-11-30, 2013-Ohio-1942,

¶ 95 (Rogers, J. dissenting) (concluding that the statutory presumption “applies with

full force” in circumstances under which the victim or the defendant is unlawfully

in the residence and “[w]ithout an instruction on the presumption there is not a

complete or correct jury instruction”). See Williford at 251 (“The absence of a ‘no

retreat’ instruction was erroneous because it rendered the jury instructions

incomplete.”); Dale at ¶ 27 (“An instruction on the castle doctrine could have

established a critical element of Dale’s self-defense claim, and there was no strategic

basis to omit such an instruction.”). See also Whitman, 2018-Ohio-2924, at ¶ 61,

63; Hadley at ¶ 42.

       {¶74} Furthermore, Chavez contends that his trial counsel should have

sought a jury instruction reflecting Ohio’s jury instruction on the “test for

reasonableness,” which provides, in its relevant part, as follows:

       1. WORDS. Words alone do not justify the use of (deadly force)
       (force). Resort to such force is not justified by abusive language,
       verbal threats, or other words, no matter how provocative.

       2.   TEST FOR REASONABLENESS.

       (A) SELF DEFENSE. In deciding whether the defendant had
       reasonable grounds to believe and an honest belief that he/she was in
       (imminent) (immediate) danger of (death or great bodily harm)
       (bodily harm), you must put yourself in the position of the defendant,
       with his/her characteristics, his/her knowledge or lack of knowledge,
       and under the circumstances and conditions that surrounded him/her

                                         -43-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       at the time. You must consider the conduct of (insert name of
       assailant) and decide whether his/her acts and words caused the
       defendant reasonably and honestly to believe that he/she was about to
       * * * (receive bodily harm).

(Emphasis sic.) Ohio Jury Instructions, CR Section 421.23 (Rev. Aug. 16, 2006).

       {¶75} Although the Ohio Jury Instruction on the test for reasonableness

would have likely aided the jury in determining the second element of a claim of

self-defense through the use of deadly force (had that element been included in the

trial court’s jury instructions), its omission is not critical. “‘“The instructions found

in Ohio Jury Instructions are not mandatory. Rather, they are recommended

instructions based primarily upon case law and statutes, crafted by eminent jurists

to assist trial judges with correctly and efficiently charging the jury as to the law

applicable to a particular case.”’” State v. Settle, 11th Dist. Trumbull No. 2015-T-

0119, 2017-Ohio-703, ¶ 25, quoting State v. Shaffer, 11th Dist. Trumbull No. 2001-

T-0036, 2003-Ohio-6701, ¶ 44, quoting State v. Martens, 90 Ohio App.3d 338, 343

(11th Dist.1993), and citing State v. Teachout, 11th Dist. Lake No. 2006-L-081,

2007-Ohio-1642, ¶ 20, State v. Morales, 6th Dist. Lucas No. L-09-1119, 2010-Ohio-

3061, ¶ 18, and State v. Berry, 159 Ohio App.3d 476, 2004-Ohio-6027, ¶ 22 (12th

Dist.). See also State v. Black, 5th Dist. Stark No. 2011 CA 00175, 2012-Ohio-

2874, ¶ 37 (noting that “deviation from the model instructions does not necessarily

constitute error” because “strict compliance with the Ohio Jury Instructions is not

mandatory”), citing State v. Riggs, 5th Dist. Licking No. 2010 CA 20, 2010-Ohio-

                                          -44-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


5697, ¶ 53. Generally, because Ohio Jury Instructions are authoritative—that is, not

mandatory—it would be difficult to conclude that a defendant’s trial counsel “failed

to satisfy the requirements of a relevant professional norm by requesting it or failing

to object when the court gave that instruction.” Kucharski, 2005-Ohio-6541, at ¶

25. Rather, the failure must be examined against the totality of the circumstances

to determine whether the defendant was prejudiced as a result of his defense

counsel’s performance. See id. Therefore, whether Chavez’s trial counsel’s failure

to request the inclusion of the Ohio Jury Instruction for the test for reasonableness

requires reversal depends on the prejudice to Chavez.

       {¶76} Finally, Chavez contends that his trial counsel’s performance was

deficient because the trial court’s verdict forms omitted the “burden-shifting”

language. In particular, Chavez contends that his trial counsel was ineffective for

failing to object to the trial court’s verdict form because it failed to include the Ohio

Jury Instruction for an affirmative-defense-verdict instruction, which provides, in

its relevant part:

       1. GUILTY. If you find that the state proved beyond a reasonable
       doubt all the essential elements of the offense of [felonious assault]
       and that the defendant failed to prove by a preponderance of the
       evidence the defense of (self defense) * * *, your verdict must be
       guilty.

       2. NOT GUILTY. If you find that the state failed to prove beyond
       a reasonable doubt any one of the essential elements of the offense of
       [felonious assault] or if you find that the defendant proved by a


                                          -45-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       preponderance of the evidence the defense of (self defense) * * *, then
       you must find the defendant (not guilty) * * * .

Ohio Jury Instructions, CR Section 425.03.

       {¶77} Here, as we previously discussed, the verdict form provided to the jury

did not contain the burden-shifting language—namely, the affirmative-defense-

verdict instruction provided by the Ohio Jury Instructions or a separate finding for

self-defense. Instead, the verdict form reflected a blank line for the insertion of

“guilty” or “not guilty.” Compare State v. Reeds, 11th Dist. Lake No. 2007-L-120,

2008-Ohio-1781, ¶ 62 (“The verdict form used in this case did not contain a separate

finding for self-defense, but rather had a finding for each charge and a blank for the

insertion of ‘guilty’ or ‘not guilty.’”). Indeed, “[s]elf-defense is not mentioned on

the verdict form at all.” Id. “While it may be argued that inclusion of a separate

finding relating to self-defense would ensure clarity,” the failure to request that the

affirmative-defense-verdict instruction be included on a verdict form will not rise to

error unless there is a reasonable probability that, but for defense counsel’s failure,

the result of the proceeding would have been different. Id. See State v. Garvin, 3d

Dist. Hardin No. 6-94-6, 1994 WL 514049, *4-5 (Sept. 21, 1994) (suggesting it is

error to fail to object to a verdict form that is missing the self-defense burden-

shifting language). See also Smith, 2013-Ohio-746, at ¶ 33; State v. Valentine, 2d

Dist. Montgomery No. 13192, 1992 WL 137101, *5 (June 19, 1992).



                                         -46-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


       {¶78} Nevertheless, simply because we find error, those errors do not

necessarily constitute reversible error. “To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below

an objective standard of reasonableness and that his errors were serious enough to

create a reasonable probability that, but for the errors, the result of the trial would

have been different.” Dale, 2013-Ohio-2229, at ¶ 26. See also Smith at ¶ 28. As

we previously addressed, “‘[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Bradley, 42 Ohio St.3d at 142, quoting

Strickland, 466 U.S. at 694. In this case, to determine whether there was a

reasonable probability that, but for the errors of his trial counsel, the result of

Chavez’s trial would have been different, we must determine whether Chavez

presented evidence from which the jury—had Chavez’s trial counsel requested the

proper jury instructions and verdict form—would have found that Chavez acted in

self-defense. Accord State v. Reid, 1st Dist. Hamilton No. C-170697, 2019-Ohio-

1542, ¶ 29.

       {¶79} Notwithstanding Chavez’s trial counsel’s errors, we cannot say that

there is a reasonable probability that, but for those errors, the result of Chavez’s trial

would have been different. See Nye, 2013-Ohio-3783, at ¶ 29-33 (concluding that

there was no evidence presented at trial reflecting that the outcome of trial would

have been different had the jury been instructed as to the statutory presumption);


                                          -47-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


State v. Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 56 (noting that

“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”), citing Nye at ¶ 30-32 and Wright, 2017-

Ohio-1225, at ¶ 34. Although the facts of this case implicate the presumption of

self-defense, “Ohio appellate courts, including this one, have stated 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 self-defense.” Nye at ¶ 30, citing

Hadley, 2013-Ohio-1942, at ¶ 61 and State v. Petrone, 5th Dist. Stark No.

2011CA00067, 2012-Ohio-911, ¶ 73. Under the facts presented, the State presented

sufficient evidence to rebut the presumption that Chavez acted in self-defense.

       {¶80} In particular, referring back to the elements of self-defense, the State’s

evidence demonstrated that Chavez’s conduct did not meet the elements of self-

defense. Id. at ¶ 31. At trial, Poole testified that he believed that Chavez stole

money from him. Under that belief, Poole went to Chavez’s residence to confront

him. After Emilio invited Poole into the residence—according to Poole—Chavez

responded to Poole’s accusation by throwing money on the floor and beating him in

his face and head. That evidence demonstrates (at a minimum) that Chavez did not

have a bona fide belief that he was in danger of imminent death or great bodily harm

and that the only means of escape from such danger was in the use of force.


                                         -48-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


Compare id. at ¶ 32 (concluding that the evidence presented by the State

“demonstrated that Nye 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”). Because the evidence presented by the State reflects

that Chavez did not have a bona fide belief that he was in danger of imminent death

or great bodily harm and that the only means of escape from such danger was in the

use of force—that is, the State presented evidence to rebut that element of Chavez’s

claim of self-defense through the use of deadly force—Chavez cannot show that

there is a reasonable probability that, but for his trial counsel’s errors, the outcome

of his trial would have been different. See Bagley, 2014-Ohio-1787, at ¶ 16, citing

Thacker, 2004-Ohio-1047, at ¶ 14, citing Jackson, 22 Ohio St.3d at 284.

       {¶81} Furthermore, that Poole and Chavez provided starkly different

accounts of the assault does not change the outcome. Namely, at trial Poole told the

jury that Chavez assaulted him (beginning in Chavez’s residence and ending in

Poole’s residence) in response to Poole’s accusation that Chavez took money from

Poole’s wallet. In contrast, Chavez told the jury that he assaulted Poole in response

to Poole entering his residence without privilege (at night) and lunging at Chavez

with something in his hand. In other words, the outcome of the case hinged on

whether the jury believed Poole’s or Chavez’s version of events. Here, as we

addressed in our manifest-weight-of-the-evidence analysis, the jury must have


                                         -49-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


found Poole to be more credible and believed his story over Chavez’s story.

Because matters of credibility are squarely within the province of the trier of fact,

we cannot say, even if the jury had complete and accurate jury instructions and a

more detailed verdict form, that the outcome of Chavez’s trial would have been

different. See DeHass, 10 Ohio St.2d at paragraph one of the syllabus. See also

State v. Christian, 10th Dist. Franklin No. 93AP-688, 1993 WL 540240, *3 (Dec.

28, 1993) (“The jury was not required to believe defendant’s version of the

events.”). Therefore, Chavez’s ineffective-assistance-of-counsel claim fails.

       {¶82} For these reasons, Chavez’s second assignment of error is overruled.

                           Assignment of Error No. III

       The cumulative effect of the improper admission of the above
       testimony/evidence regarding Appellant’s right to remain silent
       and failure to provide proper Jury Instructions and Verdict form
       regarding self-defense unfairly prejudiced the Appellant and
       denied him a fair trial.

       {¶83} In his third assignment of error, Chavez argues that the cumulative

effect of the trial court’s errors denied him a fair trial. Specifically, Chavez argues

that the cumulative effect of the errors that he alleged in his first and second

assignments of error deprived him of a fair trial.

                                 Standard of Review

       {¶84} “Under [the] doctrine of cumulative error, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair


                                         -50-
Case Nos. 13-19-05, 13-19-06 and 13-19-07


trial even though each of the numerous instances of trial court error does not

individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-

13-50, 2015-Ohio-52, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find cumulative

error, a court must first find multiple errors committed at trial and determine that

there is a reasonable probability that the outcome below would have been different

but for the combination of the harmless errors.” State v. Stober, 3d Dist. Putnam

No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. Putnam No. 12-

11-06, 2012-Ohio-1467, ¶ 36.

                                       Analysis

       {¶85} Because we found no error as alleged by Chavez in his first, second,

fourth, or fifth assignments of error, the doctrine of cumulative error does not apply.

State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.

       {¶86} Chavez’s third assignment of error is overruled.

       {¶87} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                                Judgments Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr




                                         -51-
