[Cite as State v. Densmore, 2009-Ohio-6870.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-08-04

        v.

DANA DENSMORE, JR.,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 07 CR 0084

                                     Judgment Affirmed

                         Date of Decision:     December 28, 2009




APPEARANCES:

        Matthew O. Hutchinson for Appellant

        John H. Hanna for Appellee
Case No. 7-08-04


PRESTON, P.J.

         {¶1} Defendant-appellant, Dana Densmore Jr. (hereinafter “Densmore”),

appeals the Henry County Court of Common Pleas judgment of conviction on one

count of felonious assault. For the reasons that follow, we affirm.

         {¶2} This matter stems from an altercation outside a bar in Liberty

Center, Ohio in the early morning hours of December 9, 2007. It is undisputed

that Densmore used a pocket knife on the victim, Ron Vicars1 (hereinafter

“Vicars”), and is responsible for his injury; however, at trial, Densmore relied on

the claim of self-defense.

         {¶3} On December 12, 2007, Densmore was indicted on one count of

felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second

degree. Densmore entered a plea of not guilty. A jury trial was held on June 10-

11, 2008. At the conclusion of the trial, the jury found Densmore guilty of

felonious assault. On July 23, 2008, Densmore was sentenced to a term of three

years in prison and ordered to pay $629.52 in restitution to Vicars.

         {¶4} Densmore now appeals and raises three assignments of error.

                              ASSIGNMENT OF ERROR NO. I

         THE COURT ABUSED ITS DISCRETION BY FAILING TO
         INSTRUCT THE JURY AS TO THE INFERIOR DEGREE
         OFFENSE OF AGGRAVATED ASSAULT.


1
 This Court notes that the victim’s last name is spelled differently as between the parties’ briefs; therefore,
we elect to use the spelling used in the transcript: “Vicars.”


                                                     -2-
Case No. 7-08-04


       {¶5} In his first assignment of error, Densmore argues that the trial court

erred by not instructing the jury to the inferior degree offense of aggravated

assault when there was sufficient evidence of serious provocation to warrant the

additional instruction. In response, the State argues that there was no evidence of

provocation nor was there evidence that Densmore was under a fit of rage or

sudden passion. In addition, the State asserts that since the trial court instructed

the jury on self-defense, an instruction on the inferior offense of aggravated

assault would have been contradictory.

       {¶6} First, we note that Densmore did not object to the instructions when

they were given by the trial court. As a result “[t]he failure to object to a jury

instruction constitutes a waiver of any claim of error relative thereto, unless, but

for the error, the outcome of the trial clearly would have been otherwise.” State v.

Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, at syllabus. Absent plain

error, the failure to object to improprieties in jury instructions, as required by

Crim.R. 30, is a waiver of the issue on appeal. Id. at 13, citing State v. Humphries

(1977), 51 Ohio St.2d 95, 364 N.E.2d 1354.

       {¶7} 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. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. The

Ohio Supreme Court, in Barnes, articulated a three-part test for finding plain error:



                                         -3-
Case No. 7-08-04


       First, there must be an error, i.e., a deviation from a legal rule.
       Second, the error must be plain. To be “plain” within the
       meaning of Crim.R. 52(B), an error must be an “obvious” defect
       in the trial proceedings. Third, the error must have affected
       “substantial rights.” We have interpreted this aspect of the rule
       to mean that the trial court’s error must have affected the
       outcome of the trial.

Barnes, 94 Ohio St.3d at 27 (internal citations omitted).            Thus, “[o]nly

extraordinary circumstances and the prevention of a miscarriage of justice warrant

a finding of plain error.” State v. Brown, 3d Dist. No. 8-02-09, 2002-Ohio-4755,

¶8, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph

three of the syllabus.

       {¶8} Densmore was charged with felonious assault, which is codified in

R.C. 2903.11(A)(2) and provides, “[n]o person shall knowingly cause or attempt

to cause physical harm to another or another’s unborn by means of a deadly

weapon or dangerous ordnance.”        Aggravated assault is an “inferior degree”

offense to felonious assault, which means that the two offenses are similar except

for the “additional mitigating element of serious provocation” in the aggravated

assault offense. State v. Deem (1988), 40 Ohio St.3d 205, 210-11, 533 N.E.2d

294. That mitigating factor in the offense of aggravated assault requires proof that

the defendant acted “under the influence of sudden passion or in a fit of rage,

either of which is brought on by serious provocation occasioned by the victim that

is reasonably sufficient to incite the person into using deadly force.”        R.C.



                                        -4-
Case No. 7-08-04


2903.12(A)(2). Moreover, the defendant has the burden of proving the mitigating

factor by a preponderance of the evidence.        State v. Nowden, 2nd Dist. No.

07CA0120, 2008-Ohio-5383, ¶56, citing Deem, 40 Ohio St.3d at 210-11.

       Provocation, to be serious, must be reasonably sufficient to bring
       on extreme stress and the provocation must be reasonably
       sufficient to incite or to arouse the defendant into using deadly
       force. In determining whether the provocation was reasonably
       sufficient to incite the defendant into using deadly force, the
       court must consider the emotional and mental state of the
       defendant and the conditions and circumstances that
       surrounded him at the time.

Deem, 40 Ohio St.3d 205, at paragraph five of the syllabus, quoting State v. Mabry

(1982), 5 Ohio App.3d 13, 449 N.E.2d 16, paragraph five of the syllabus. As a

result, in a case involving a felonious assault, if the defendant “presents sufficient

evidence of serious provocation (such that a jury could both reasonably acquit

defendant of felonious assault and convict defendant of aggravated assault), an

instruction on aggravated assault (as a different degree of felonious assault) must

be given.” Id. at 211 (emphasis in original).

       {¶9} At trial, the State called five witnesses that were present on the night

of the altercation. The first witness the State called was Denise Wittenmeyer

(hereinafter “Wittenmeyer”), the owner of the bar where the altercation took place.

(June 10, 2008 Tr. at 27-28). She testified that she was working by herself on the

night of the altercation. (Id. at 29). She stated that she had known Densmore for

about five years and that she had seen Densmore there that night. (Id.). Even


                                         -5-
Case No. 7-08-04


though the two of them only engaged in small talk that evening, she said that she

could tell Densmore was acting “different than usual,” and not acting like himself.

(Id.). Wittenmeyer testified that she witnessed Densmore talk to and poke one of

the other patrons (Allan “Scott” Frankenberger) (hereinafter “Frankenberger”) in

the chest, which caused Frankenberger to become agitated, and as a result, she had

to separate the two. (Id. at 30). When it came time to close, she said that she

asked everyone to leave, but that Densmore refused to leave because he wanted to

talk to her. (Id. at 31). So, another patron (Vicars), walked Densmore out with a

few of the other patrons. (Id.). While Wittenmeyer acknowledged on cross-

examination that Vicars had physically led Densmore out, she said that Vicars had

just put his arm around Densmore’s shoulder – that his actions were more polite,

than aggressive. (Id. at 37). Then, Wittenmeyer said that after everyone went

outside, Vicars ran back into the bar and told her to call 911 because he had been

stabbed. (Id. at 32). She saw that Vicars had a cut approximately two inches long

on his arm, and she called 911 and stayed on the phone until the paramedics and

sheriff’s department arrived. (Id. at 33). Wittenmeyer testified that she did not

think there had been any issues between Vicars and Densmore that night. (Id. at

31).

       {¶10} Next, the State called the three other people who had been there that

night with Vicars: Sarah Vicars (the victim’s wife) (hereinafter “Vicar’s wife”),



                                        -6-
Case No. 7-08-04


Frankenberger, and his girlfriend Beth Blaze (hereinafter “Blaze”). (Id. at 38).

They all testified that on the night of the altercation, they were sitting at a booth in

the bar talking, when Densmore (whom none of them had ever met before)

unexpectedly sat down with them. (Id. at 39, 74-74, 91-92). They stated that

Densmore never said anything to them while he was sitting at their booth, but

rather just sat there and stared at everybody before getting up and leaving soon

afterwards. (Id. at 39, 75). When it came time for the bar to close, Vicar’s wife

stayed in the bar with Wittenmeyer because, at some point when the bar was

closing, her husband had told her to stay inside because he thought there was

“going to be an altercation.” (Id. at 44-45). The next thing she remembered was

her husband running back inside the bar, asking someone to call 911 because he

had been stabbed. (Id. at 41).

       {¶11} Frankenberger testified that after Densmore left their booth, he never

saw him again until the bar was closing, at which time, Densmore “approached

[him], kind of got in [his] face not knowing who [he] was, started poking [him] in

[his] chest,” and Wittenmeyer subsequently intervened. (Id. at 77). Then at that

point, Frankenberger stated that Vicars tried to get Densmore to leave the bar and

“grabbed him by the arm of the coat and just kind of, we pulled him outside.” (Id.

at 78). When they (Blaze, Vicars, Densmore, and himself) were outside, they

started smoking, but Densmore kept trying to talk to Frankenberger, and Vicars



                                          -7-
Case No. 7-08-04


was trying to get Densmore to leave. (Id. at 78). After they were done smoking,

Blaze and Frankenberger walked out to their car, and when Frankenberger turned

back around, he saw Vicars and Densmore on the ground.                  (Id. at 79).

Frankenberger testified that when he ran over to them, Vicars had Densmore

pinned down and asked Frankenberger to get “the knife.” (Id. at 79). However,

Frankenberger said he was unable to get the knife away from Densmore, so he

asked Vicars if he wanted him to break Densmore’s legs so that he would not be

able to get up and follow them, but Vicars told him no.             (Id.).   Instead,

Frankenberger said that they counted to three and both took off in opposite

directions – Frankenberger ran to his car and drove off with his girlfriend, while

Vicars ran back inside the bar. (Id. at 80). Frankenberger testified that while

Vicars had seemed aggravated with Densmore when he was trying to get him to

leave the bar, Frankenberger said that he never saw Vicars make any aggressive

gestures towards Densmore that night. (Id. at 81).

       {¶12} In addition, Blaze testified that when the bar was closing, she saw

Densmore trying to talk to Frankenberger and that he had wanted to know what

Frankenberger’s problem was with him. (Id.). She said that Vicars escorted

Densmore out of the bar, and when the four were outside the bar, she said they

tried to get Densmore to leave, but he still was trying to talk to Frankenberger.

(Id. at 94). Blaze testified that eventually she got Frankenberger to leave with her,



                                         -8-
Case No. 7-08-04


and when they got to their car, they saw Vicars and Densmore on the ground. (Id.

at 95). She testified that Frankenberger went over to assist, and she saw all three

of them struggle until she heard one of them count to three, at which time, Vicars

ran into the bar and Frankenberger ran back to the car. (Id. at 95-96). When he

got into the car and they were driving away, Densmore started chasing them down

the street and yelled something unintelligible at them. (Id. at 96).

       {¶13} The last witness called for the State was the victim, Vicars. (Id. at

100). Vicars testified that he had never met Densmore before that night when

Densmore pulled up a chair to his group’s booth. (Id. at 101). At the end of the

night, Vicars noticed Densmore was trying to talk to Wittenmeyer, but that she

was trying to get him to leave, so Vicars said he walked Densmore outside. (Id. at

102). When they all got outside, Vicars said Densmore and Frankenberger were

arguing with one another, but that he eventually got the two of them to separate

and walk to their respective cars. (Id. at 102). As Frankenberger was walking

away, Vicars testified that the following occurred:

       Vicars: * * * Dana Densmore had said, you know, we’ll just let
       Jesus straighten it out, okay, and then I had said, you know, it’s
       2:30 in the morning, the police will be coming by, wake up in our
       own beds, Scott agreed, was going back to his car, and Dana had
       positioned himself to my left and had said something to me that
       he was the rapture, and not really sure of what all was said, just
       after that I know I was pushed, I pushed back, when he come
       back at me, I swung and hit him, he went back a number of
       steps, come back at me again, I swung and hit him again, and
       then the third time that he come at me I didn’t swing, I just


                                         -9-
Case No. 7-08-04


       tackled him and got him on the ground because I thought I was
       going to hurt him, because he just kept coming back, not, at that
       point was not aware that I had been cut or stabbed or anything
       until, when I had him on the ground, and I don’t know how I
       was positioned on him but somehow or another I was on him
       and holding his arm and like this, the knife blade stuck out and
       my hand was there, and that’s when I called for Scott to come
       back to try to get the knife out of his hands or out of his hand
       and, you know, he tried to grab a hold of it but couldn’t and I
       told Scott to go back to his car and from there, you know, I
       jumped up and got back into the bar.

(Id. at 103-04). Besides Densmore sitting down at their booth that night, Vicars

testified that there were no other interactions between the two of them that night.

(Id. at 108). On cross-examination, Vicars admitted to having one or two drinks

that night and that he had pushed Densmore towards his car after Densmore had

pushed him. (Id. at 110, 115). In addition, Vicars said that Densmore appeared

more agitated than a normal person, but that he could not say for sure whether

Densmore had been highly intoxicated. (Id. at 120).

       {¶14} Densmore’s version of the events leading up to the altercation was

slightly different. He stated that at the bar that night he had walked around talking

to Wittenmeyer and other people. (Id. at 127). When it came time for the bar to

close, he said that he did not feel like leaving and asked Wittenmeyer if he could

stay and talk to her for a few minutes. (Id. at 128). That was when he stated that

Vicars came up behind him and grabbed his arm “pretty good” and escorted him

outside.   (Id.).   When he got outside, he said that everyone else except



                                        -10-
Case No. 7-08-04


Wittenmeyer was outside, and they were all smoking.             (Id.).   So, he asked

someone for a cigarette and stayed out there with everyone and had a “general

conversation.” (Id.) Then, Densmore said one of the couples started to leave, and

that was when Vicars started pushing him towards his truck. (Id.). Densmore said

that he turned around and told Vicars to stop pushing him and to leave him alone,

but that was when Vicars hit him in the face and he went down. (Id.). Densmore

testified that when he went down, Vicars got on top of him and “kept punching, I

was getting to the point where I couldn’t breath, getting to where I couldn’t see

very well because getting hit in the face, so, you know, I was getting pretty close

to passing out from not being able to breath.” (Id. at 128-129). That was when he

took out his pocket knife, used his leg to open it, and cut Vicars to get his arm off

of his neck. (Id. at 129). Vicars then told him that he was going to call the police,

at which point, Densmore said that he stayed outside and waited for the police to

arrive. (Id. at 130). Densmore testified that he usually keeps a pocket knife on

him, but that he typically uses it as a tool, such as for cutting rope and wire, and to

clean his nails.   (Id.).   Densmore stated that he felt that he had tried to do

everything possible to get Vicars off of him, but believed that using his pocket

knife was the only way to get Vicars to stop choking him. (Id.).

       {¶15} On cross-examination, Densmore admitted that he had kept refusing

to leave the bar when Wittenmeyer was trying to close, and that he was eventually



                                         -11-
Case No. 7-08-04


escorted outside.   (Id. at 136).   However, Densmore could not recall poking

Frankenberger in the chest and arguing with him that night inside the bar, but he

did recall arguing with him outside. (Id. at 137). Densmore could also not recall

whether Frankenberger or Blaze came back to help, but Densmore did admit to

chasing a vehicle down the street after the altercation because he said that he did

not know whether they were going to come back after him.               (Id. at 141).

Densmore denied saying anything about being the rapture to Vicars. (Id. at 144).

In addition, Densmore admitted to taking anti-depressants and he said that when

he went to the bar he had told Wittenmeyer that he had not taken his medication,

so that he could have a good time that night. (Id. at 144-45). He also testified that

he had had a few drinks, and that he was pretty close to being drunk. (Id. at 145).

       {¶16} Based on the record, we believe the evidence was insufficient to

warrant a jury instruction on aggravated assault because there was insufficient

evidence of serious provocation.     There is no evidence that Vicars provoked

Densmore into a fit of rage or sudden passion. Even if we were to believe

Densmore’s version of the events that Vicars hit him first, Densmore’s testimony

fails to demonstrate that he was in a state of rage or sudden passion when he

stabbed Vicars; in fact, it demonstrates the opposite, which was that Densmore

rationally stabbed Vicars.




                                        -12-
Case No. 7-08-04


      {¶17} Densmore’s testimony was that after Vicars knocked him to the

ground, he stabbed him to try to get Vicars off of him. Densmore emphasized that

he had tried to do everything possible to get Vicars off of him, but that using his

pocket knife was the only way to get Vicars to stop choking him.             When

explaining how he stabbed Vicars, Densmore stated,

      I had reached around, because I couldn’t get this arm free to do
      anything, reached around in my pocket, pulled my pocket knife
      out that I carry, well, I carried that particular for at least 10
      years, and I proceeded to open the blade with my thumb and
      then I used my leg to open it the rest of the way, reached up, cut
      him to get his arm off of me so I could start breathing again, and
      within seconds after that he got up and went one way and I went
      the other way.

(June 10, 2008 Tr. at 129). Densmore even physically demonstrated his actions

during the altercation and gave the court a reasonable and rational play-by-play

account of the incident. (Id. at 133-35). All of this evidence illustrates that

Densmore’s actions were calculated, and not in a state of rage.

      {¶18} Moreover, we note that the trial court instructed the jury on self-

defense, which is a “complete defense to all substantive elements of the crime

charged’ (or, consequently, to any lesser included offense).” State v. Rick, 3d

Dist. No. 9-08-27, 2009-Ohio-785, ¶64, citing State v. Shadd (June 14, 1994), 3d

Dist. No. 9-94-5, quoting State v. Nolton (1969), 19 Ohio St.2d 133, 135, 249

N.E.2d 797. This Court has stated that a defendant who asserts self-defense “is

not entitled under Ohio law to instructions on self-defense and on lesser included


                                       -13-
Case No. 7-08-04


offenses, but must choose between the two.” Id., quoting Shadd, 3d Dist. No. 9-

94-5, citing Nolton, 19 Ohio St.2d at 135. See, also, State v. Briggs, 3d Dist. No.

1-06-27, 2006-Ohio-5144, ¶11;2 State v. Gutierrez (Sept. 21, 1995), 3d Dist. No.

5-95-10, at *4. Throughout the entire trial, Densmore asserted this affirmative

defense. Densmore’s defense attorney even stated during his closing arguments:

         So I believe, ladies and gentlemen of the jury, he definitely
         proved to you the area of self defense. He was not at fault in
         creating the situation that gave rise to the event of his injury as I
         explained before and the position that he was on his back,
         somebody on him, sitting on him, getting ready or choke or
         choking him, he had no position in his mind and reasonable
         grounds to believe even if it was… (INAUDIBLE)…that that’s
         what he needed to do to get out of the situation that he was
         there.

(June 11, 2008 Tr. at 18). Accordingly, we cannot conclude that the trial court

erred in failing to instruct the jury on aggravated assault because there was

insufficient evidence to warrant the instruction and the trial court instructed on

self-defense.

         {¶19} Densmore’s first assignment of error is, therefore, overruled.

                             ASSIGNMENT OF ERROR NO. II

         THE COURT COMMITTED PLAIN ERROR IN FAILING TO
         INSTRUCT THE JURY AS TO “DEADLY FORCE” AND
         SELF-DEFENSE AGAINST DANGER OF BODILY HARM.


2
  In State v. Saldana, 3d Dist. No. 16-08-09, 2008-Ohio-5829, ¶10 fn.1, this Court recognized that even
though we had misstated the Ohio Supreme Court’s language in Deem (calling aggravated assault a lesser
included offense rather than an inferior offense of felonious assault), we found that its holding was applied
properly.


                                                   -14-
Case No. 7-08-04


       {¶20} In his second assignment of error, Densmore argues that the trial

court improperly instructed the jury because it failed to define “deadly force” and

failed to give the jury the non-deadly force self-defense instructions.

       {¶21} As Densmore admits in his brief, he did not object to the instructions

when they were given by the trial court. As a result “[t]he failure to object to a jury

instruction constitutes a waiver of any claim of error relative thereto, unless, but

for the error, the outcome of the trial clearly would have been otherwise.”

Underwood, 3 Ohio St.3d 12, at syllabus. Absent plain error, the failure to object

to improprieties in jury instructions, as required by Crim.R. 30, is a waiver of the

issue on appeal. Underwood, 3 Ohio St.3d at 13, citing Humphries, 51 Ohio St.2d

95.

       {¶22} 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.” Barnes, 94 Ohio St.3d at 27. The Ohio Supreme Court, in Barnes,

articulated a three part test for the finding of plain error.

       First, there must be an error, i.e., a deviation from a legal rule.
       Second, the error must be plain. To be “plain” within the
       meaning of Crim.R. 52(B), an error must be an “obvious” defect
       in the trial proceedings. Third, the error must have affected
       “substantial rights.” We have interpreted this aspect of the rule
       to mean that the trial court's error must have affected the
       outcome of the trial.




                                          -15-
Case No. 7-08-04


Barnes, 94 Ohio St.3d at 27 (internal citations omitted).             Thus, “[o]nly

extraordinary circumstances and the prevention of a miscarriage of justice warrant

a finding of plain error.” Brown, 2002-Ohio-4755, ¶8, citing Long, 53 Ohio St.2d

91, at paragraph three of the syllabus.

       {¶23} Generally, a trial court has broad discretion to decide how to fashion

jury instructions. The trial court must not, however, fail to “fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh

the evidence and discharge its duty as the fact finder.” State v. Comen (1990), 50

Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus.

       {¶24} Self-defense is an affirmative defense, which means that the burden

of going forward is on the defendant who must prove each element by a

preponderance of the evidence. R.C. 2901.05; Struthers v. Williams, 7th Dist. No.

07 MA 55, 2008-Ohio-6637, ¶12, citing State v. Jackson (1986), 22 Ohio St.3d

281, 283, 490 N.E.2d 893. In asserting the affirmative defense of self-defense, the

defendant cannot simply deny or contradict the evidence that has been presented

by the State; rather, he must admit the prohibited conduct but assert surrounding

facts and circumstances that justified engaging in the prohibited conduct.

Struthers, 2008-Ohio-6637, ¶12, citing State v. Grubb (1996), 111 Ohio App.3d

227, 282, 675 N.E.2d 1353.




                                          -16-
Case No. 7-08-04


       {¶25} There are essentially two different forms of self-defense in Ohio: (1)

self-defense against danger of bodily harm (“non-deadly force” self-defense); and

(2) self-defense against danger of death or great bodily harm (“deadly force” self-

defense).      The elements of self-defense that a defendant must prove differ

depending on the level of force used. Struthers, 2008-Ohio-6637, at ¶13. The

main difference between the two instructions is that the deadly force self-defense

instruction is a more rigid standard than the non-deadly force self-defense

instruction.

       {¶26} The deadly force self-defense instruction requires the defendant to

prove by a preponderance of the evidence that: (1) he perceived himself to be in

grave danger; and (2) he did not have a duty to retreat, under the circumstances.

State v. Hansen (May 7, 2002), 4th Dist. No. 01CA15, at *2, citing State v.

Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755. In contrast, the non-deadly

force self-defense instruction only requires the defendant to show that he

reasonably believed that such conduct was necessary to defend himself; moreover,

there is generally no duty to retreat in non-deadly force circumstances. Id. at *3,

citing Columbus v. Dawson (1986), 33 Ohio App.3d 141, 514 N.E.2d 908.

       {¶27} Densmore argues that the outcome of the case would have been

different had the trial court defined “deadly force” and instructed them as to non-

deadly force self-defense. He asserts that had it been given the definition and



                                       -17-
Case No. 7-08-04


instruction, the jury would have determined that his conduct did not amount to

deadly force. Specifically, Densmore points to the following in support of his

claim: (1) he had used a small pocket knife, (2) the injury only required stitches,

(3) there was no evidence that the cut to Vicar’s arm posed a substantial risk of

death, (4) his small pocket knife could not have caused a very serious injury since

Vicars was wearing a heavy winter coat, and (5) Vicars had Densmore restrained

so that he could not have caused any other injuries to Vicars. Overall, Densmore

argues that while his actions may have caused a substantial risk of physical harm,

his actions did not rise to the level of causing substantial risk of death.

       {¶28} We find Densmore’s arguments unpersuasive.                Just because a

defendant does not actually cause serious injury to the victim, does not mean that

his actions did not amount to deadly force. See Hansen, 4th Dist. No. 01CA15, at

*4 (finding slashing another person with a lock-blade knife carries a substantial

risk of death warranting the deadly force self-defense instructions, even though the

injury caused by defendant was not serious); State v. Wagner (July 14, 2000), 11th

Dist. No. 99-L-043, at *3 (rejecting defendant’s argument that using a broken

wineglass was not deadly force because it did not seriously injure the victim);

State v. Chlebowski (May 28, 1992), 8th Dist. No. 60808, at *4 (rejecting

defendant’s argument that the instructions should have been tailored to the facts of

the instant case, which involved a charge of merely causing physical harm,



                                          -18-
Case No. 7-08-04


because defendant had used a deadly weapon in inflicting physical harm). Deadly

force is defined as “any force that carries a substantial risk that it will proximately

result in the death of any person.” R.C. 2901.01(A)(2). Clearly, using a knife on

someone’s person that can easily cut through an overcoat and clothing carries a

substantial risk of death. Moreover, other courts have also found that the use of a

small knife on another person’s body constituted deadly force, rather than non-

deadly force. Struthers v. Williams, 7th Dist. No. 07 MA 55, 2008-Ohio-6637,

¶13 (stating that a defendant’s act of killing a victim by stabbing him with a knife

was deemed “deadly force” by the Ohio Supreme Court); State v. Skinner, 9th

Dist. No. 06CA009023, 2007-Ohio-5601, ¶19; State v. Sims, 8th Dist. No. 85608,

2005-Ohio-5846, ¶17; Hansen, 4th Dist. No. 01CA15, at *4 (finding that using a

lock blade knife warrants an instruction on the use of deadly force).

       {¶29} Furthermore, this Court notes that the parties appeared to have

conceded that Densmore’s actions amounted to deadly force. For example, the

defense counsel in his closing arguments stated that the evidence illustrated that

Densmore had honest belief “that he was in imminent danger of death or great

bodily harm, and that is [sic] only reasonable means of withdraw from such danger

was by the use of deadly force.” (June 11, 2008 Tr. at 16).




                                         -19-
Case No. 7-08-04


       {¶30} Therefore, we find that the trial court’s failure to instruct the jury as

to the definition of deadly force and non-deadly force self defense did not rise to

plain error since it is clear that Densmore’s actions amounted to deadly force.

       {¶31} Densmore’s second assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. III

       MR. DENSMORE WAS DEPRIVED OF THE EFFECTIVE
       ASSISTANCE OF COUNSEL WHERE: COUNSEL DID NOT
       REQUEST THE COURT TO INSTRUCT THE JURY AS TO
       AGGRAVATED ASSAULT, DEADLY FORCE, AND NON-
       DEADLY FORCE SELF-DEFENSE; COUNSEL DID NOT
       OBJECT TO QUESTIONS ABOUT POST-ARREST
       SILENCE.

       {¶32} In his third assignment of error, Densmore argues that he was denied

effective assistance of counsel because his trial counsel failed to object to the lack

of a jury instruction on aggravated assault and deadly force and non-deadly force

self-defense, and failed to object to the evidence of Densmore’s post-arrest

silence.

       {¶33} 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 (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order

to show counsel’s conduct was deficient or unreasonable, the defendant must



                                        -20-
Case No. 7-08-04


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, 466 U.S. at 687. Counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable

professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d

267. Tactical or strategic trial decisions, even if unsuccessful, do not generally

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

651 N.E.2d 965. Rather, the errors complained of must amount to a substantial

violation of counsel’s essential duties to his client. See State v. Bradley (1989), 42

Ohio St.3d 136, 141-42, 538 N.E.2d 373, quoting State v. Lytle (1976), 48 Ohio

St.2d 391, 396, 358 N.E.2d 623, vacated on other grounds in Lytle v. Ohio (1978),

438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

       {¶34} First, Densmore argues that his attorney was ineffective because he

failed to object to the lack of jury instructions as to aggravated assault, deadly

force, and non-deadly force self-defense. Densmore claims that had the attorney

requested such instructions, the result would have been different. However, this

Court has already determined that Densmore was not entitled to the instruction on

aggravated assault because there was no evidence of serious provocation. See

State v. Crawford, 8th Dist. No. 22314, 2008-Ohio-4008, ¶¶26-30 (finding that

there was no ineffective assistance when defendant’s attorney failed to request



                                        -21-
Case No. 7-08-04


aggravated assault charge when defendant was asserting self-defense claim.)

Moreover, this Court has found that the jury instruction as to deadly force self-

defense was proper. See Hansen, 4th Dist. No. 01CA15, at *5 (declining to

address defendant’s ineffective assistance assignment of error since the court had

found the jury instruction as to deadly force self-defense was proper). Therefore,

we see no need to fully address these arguments since it could not have been

ineffective assistance of counsel where the defendant was not entitled to any of the

jury instructions. See id., citing James A. Keller, Inc. v. Flaherty (1991), 74 Ohio

App.3d 788, 600 N.E.2d 736, citing South Pacific Terminal Co. v. Interstate

Commerce Comm. (1910), 219 U.S. 498, 514, 31 S.Ct. 279, 55 L.Ed. 310.

       {¶35} Second, Densmore argues that his attorney was ineffective because

he did not object to the introduction of evidence of his post-arrest silence.

Densmore relies on the rule that states the government cannot use a defendant’s

post-arrest, post-Miranda silence as a means to impeach him if he later decides to

testify. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

Specifically, Densmore states that the following testimony of the three law

enforcement officers involved in the case should have been objected to by his

attorney:

       Deputy Walker: “I learned that Detective Sergeant Schultheis
       had attempted an interview with the Defendant, however he
       refused to make any statements or provide any information[.]”
       (June 10, 2008 Tr. at 51).


                                       -22-
Case No. 7-08-04



       Deputy Cohrs: “I also went to the hospital where I met Detective
       Schultheis, we had entered the room, Detective Schultheis read
       him his Miranda Rights and asked him some questions but he
       decided to exercise his rights and not answer.” (June 10, 2008 Tr.
       at 62).

       Detective Schultheis: “Mr. Densmore was asked when I came in
       that I conduct an interview in reference to the stabbing, his
       answer was yes, and then I read him his Miranda Rights and he
       invoked those rights and decided not to answer any questions
       until an attorney was present.” (June 10, 2008 Tr. at 68).

       {¶36} We do not believe that Densmore’s trial counsel was constitutionally

deficient in this case. His trial strategy appeared to be to show that Densmore

never spoke to any of the law enforcement officers, even before his Miranda rights

were given. (June 10, 2008 Tr. at 63-64). Densmore’s trial counsel even raised

the issue at trial during Densmore’s testimony. (June 10, 2008 Tr. at 146). It is

not our place to second-guess counsel’s trial strategy, and his representation in this

case was within an acceptable range of reasonable representation. State v. Eason,

7th Dist. No. 02 BE 41, 2003-Ohio-6279, ¶133.

       {¶37} Densmore’s third assignment of error is, therefore, overruled.

       {¶38} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW, J., concur.

/jlr


                                        -23-
Case No. 7-08-04



ROGERS, J., concurring separately.

        {¶39} I concur with the result reached by the majority based on the

circumstances of this case. However, I believe that it is error for a trial court to

fail to provide the jury with the definition of “deadly force” whenever the deadly

force self-defense instruction3 is given. I simply do not find it to be plain error in

this case.

        {¶40} Appellant was charged with felonious assault, to wit: “* * * cause or

attempt to cause physical harm to another * * * by means of a deadly weapon.”

R.C. 2903.11(A)(2). Because the State must prove that the offender acted by

means of a deadly weapon, it goes without saying that the trial court must include

in the instructions a definition of “deadly weapon.”

        {¶41} Although a knife was used in Appellant’s case, a knife is not, per se,

a deadly weapon. A deadly weapon is defined as “any instrument, device, or thing

capable of inflicting death, and designed or specially adapted for use as a weapon,

or possessed, carried, or used as a weapon.” R.C. 2923.11(A). This is a two-part

definition: first requiring that the instrument have the capability of inflicting death;

and second, having been designed, adapted, possessed, carried, or used as a

weapon.



3
 Ohio Jury Instructions has captioned this defense as: Self-defense against danger of death or great bodily
harm. OJI-CR 421.19.


                                                  -24-
Case No. 7-08-04


        The general rule is that a folding knife is not a deadly weapon,
        unless and until some extrinsic fact or circumstance
        distinguishes it from the norm. Columbus v. Dawson (1986), 28
        Ohio App.3d 45, 46, 501 N.E.2d 677 (a knife is not presumed to
        be a deadly weapon, even if it is concealed); State v. Cathel
        (1988), 127 Ohio App.3d 408, 412, 713 N.E.2d 52 (a knife is not
        considered “in and of itself” to be a deadly weapon under the
        statute); State v. Anderson (1981), 2 Ohio App.3d 71, 72, 440
        N.E.2d 814 (when an instrument is readily identifiable as one
        capable of inflicting death, such as a knife, proof of either
        additional element [designed/possessed, carried or used as a
        weapon] is nonetheless essential to sustain a conviction for
        carrying a concealed weapon).

State v. Port, 3d Dist. No. 9-05-39, 2006-Ohio-2783, ¶30. (Rogers, J., concurring

separately).

       {¶42} If the jury concludes that the elements of the offense have been

proven beyond a reasonable doubt, it may then consider an affirmative defense of

self-defense. Here, the trial court gave the jury an instruction on self-defense that

included the term “deadly force”:

       To establish a claim of self defense, the Defendant must prove by
       the greater weight of the evidence that, A, he was not at fault in
       creating the situation giving rise to the event in which injury
       occurred, and B, he 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 his only reasonable
       means of withdrawal from such danger was by the use of deadly
       force, and C, he had not violated any duty to withdraw to avoid
       the danger.

(Emphasis added.) (Trial Tr., Vol. II, p. 43). The term “deadly force” is defined

by statute as follows: “‘Deadly force’ means any force that carries a substantial



                                        -25-
Case No. 7-08-04


risk that it will proximately result in the death of any person.”                R.C.

2901.01(A)(2). When a term used in a jury instruction is defined by statute, I feel

strongly that the statutory definition should be given to the jury. This is necessary

to insure that no inappropriate and prejudicial connotation is given to the term

during the jury’s deliberations.

       {¶43} In considering the affirmative defense of self-defense in this case,

the jury was required to consider whether the alleged deadly weapon was used in a

manner that carried a substantial risk that it could proximately result in the death

of the victim. Reflection over this point should cause the jury to ponder whether

the knife was used in a manner which, in fact, created a substantial risk of causing

death, whether intentionally or not. It is not enough that the knife is determined to

be a deadly weapon, to wit: the knife was capable of causing death, and the knife

was used as a weapon. Rather, the question is whether, in this case, the “deadly

weapon” was used in a manner which created a substantial risk of death. If, as

Appellant has argued, the victim was wearing a heavy winter coat which was

unlikely to be penetrated by the relatively short blade of Appellant’s knife, the jury

could have concluded that the element of deadly force was not present. The

majority, and the three cases relied upon by the majority, seem to reach the factual

conclusion that any knife (or slashing with a broken bottle) constitutes deadly

force. However, factual conclusions should be left to the jury.



                                        -26-
Case No. 7-08-04


       {¶44} Furthermore, jumping to the conclusion that every use of even a

small knife on another person’s body is deadly force ignores the requirement that

the use of the weapon creates “a substantial risk that it will proximately result in

the death” of the victim. R.C. 2901.01(A)(2). “Substantial risk” is defined as “a

strong possibility, as contrasted with a remote or significant possibility, that a

certain result may occur * * *.” R.C. 2901.01(A)(8). To emphasize how strong

that possibility must be in criminal law, Ohio Jury Instructions (OJI) has added the

term “even” in front of “significant”, so that the instruction currently in use by OJI

and recommended to Ohio judges reads: “‘Substantial risk’ means a strong

possibility, as contrasted with a remote or even a significant possibility, that a

certain result may occur * * *.” OJI-CR 503.11(A). Therefore, just because a

small knife could possibly cause death does not justify a reviewing court jumping

to the conclusion that its use always constitutes deadly force as defined by statute.

There remains a significant factual issue, best to be determined by a jury, as to

whether, in the case under consideration, there was a substantial risk of death.

       {¶45} I would have preferred that each of these questions been answered

by the jury in Appellant’s case. However, there was no objection at trial to the

limited instructions given by the trial court.      Therefore, we must determine

whether the error was plain error. Based on the facts related in this case, I cannot




                                        -27-
Case No. 7-08-04


say that the jury clearly lost its way and that, but for this error, the verdict would

probably have been different.

/jlr




                                        -28-
