       [Cite as In re C.L., 197 Ohio App.3d 514, 2011-Ohio-6892.]




                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    ATHENS COUNTY

In re C.L.                                          :
                                                    :
                                                    :    Case No. 11CA9
                   :
                                                    :    Released: December 16, 2011
                                                    :
                                                    :    DECISION AND JUDGMENT ENTRY
                                                    :

                                          APPEARANCES:

      Timothy Young, Ohio Public Defender, and Sheryl A. Trzaska, Assistant Public
Defender, for appellant.

       James E. Schneider, Washington County Prosecuting Attorney, and Kevin A.
Rings, Assistant Prosecuting Attorney, for appellee.




       Per Curiam.

       {¶ 1} Appellant, C.L., appeals his adjudication of delinquency in the Athens

County Juvenile Court after the trial court found him guilty of negligent homicide, a first-

degree misdemeanor, in violation of R.C. 2903.05.                   On appeal, C.L. raises two

assignments of error, arguing that (1) he proved self-defense, and (2) his conviction was

against the manifest weight of the evidence and there was insufficient evidence to

convict him. Having reviewed the record, we find that the trial court’s decision finding

that C.L. did not prove self-defense was against the manifest weight of the evidence.

Accordingly, we sustain C.L.’s second assignment of error and reverse the trial court’s

judgment.
                                           FACTS

       {¶ 2} Preliminarily, we note, “If an appellee fails to file an appellate brief, App.R.

18(C) authorizes us to accept an appellant’s statement of facts and issues as correct

and then reverse a trial court’s judgment as long as the appellant’s brief reasonably

appears to sustain such action. See Sprouse v. Miller, [4th Dist.] No. 06CA37, 2007-

Ohio-4397, fn. 1. In other words, an appellate court may reverse a judgment based

solely on a consideration of an appellant’s brief. See id., citing Helmeci v. Ohio Bur. of

Motor Vehicles (1991), 75 Ohio App.3d 172, 174, 598 N.E.2d 1294; Ford Motor Credit

Co. v. Potts (1986), 28 Ohio App.3d 93, 96, 502 N.E.2d 255; State v. Grimes (1984), 17

Ohio App.3d 71, 71-72, 477 N.E.2d 1219.” Greene v. Seal Twp. Bd. of Trustees, 4th

Dist. No. 10CA812, 2011-Ohio-1392, at ¶ 12.

       {¶ 3} Here, the state failed to file a timely responsive brief. The state requested

additional time to file its brief, and although this is a priority case, the court granted said

motion.   The court specifically warned the state, “BECAUSE THIS IS A PRIORITY

APPEAL,      NO     FURTHER          EXTENSIONS       WILL     BE     GRANTED        ABSENT

EXTRAORDINARY CIRCUMSTANCES.” Despite this admonishment, the state filed its

response after the extended deadline, rendering its brief untimely. Thus, we accept

appellant’s statement of facts as true.

       {¶ 4} On June 13, 2010, Scott and Shenandoah Walraven, both adults, hosted

a party for numerous teens. The Walravens had supplied a keg of beer, and there was

other alcohol present, too. Most of the attendees were too young to legally consume

alcohol, but were doing so nonetheless. C.L. attended the party and did not drink any

alcohol, nor did his male friends.



                                                  2
      {¶ 5} Later that evening, C.L. and two of his friends were at their cars

discussing leaving the party. Three unknown males approached the cars and began

beating on the roof of one of the cars, demanding that C.L. and his friends exit the car

so they could fight. One of C.L.’s friends exited the driver’s door and began asking why

there was going to be a fight. C.L. exited the passenger door to stand near his friend.

      {¶ 6} Once outside the car, C.L. and his friends recognized the male

antagonists as Scott Walraven’s son, T.C., and LaMarr Wilder. As C.L.’s friend was

trying to explain that he had no intention to fight, T.C. punched C.L.’s friend in the back

of the head. Wilder punched C.L. in the temple, knocking him to the ground. The

Walravens’ son punched C.L.’s second friend in the face, dazing him and possibly

rendering him unconscious.

      {¶ 7} Once C.L. was on the ground, he rolled to his stomach, where Wilder

began to pummel his head and neck. Wilder was 5’10”, nearly 240 pounds, a football

player, and 19 years old. While C.L. was a few inches taller and 10 pounds heavier

than Wilder, C.L. had never been in a fight before and was only 17. C.L. testified that

he had tried to get up, but was able to get only onto his elbows. C.L.’s vision began to

darken as Wilder continued pummeling his head, so C.L. reached into his pocket for his

pocket knife. In addition to his waning consciousness, C.L. was unsure when Wilder

would stop hitting him because Wilder had been drinking. C.L. also thought that more

than one person was holding him down or punching him because he could not get up.

      {¶ 8} C.L. unfolded his knife and thrust it in the general direction of Wilder.

Wilder exclaimed that C.L. was “trying to poke him,” but continued punching C.L. in the




                                                3
head. After several thrusts of the knife, Wilder ceased the beating, and C.L. got up and

ran to his truck.

       {¶ 9} As C.L. attempted to leave, Scott Walraven and his son assaulted C.L. in

his truck. Scott Walraven grabbed C.L.’s shirt and punched him in the face several

times. C.L. tried to kick him away, to no avail. Finally, Scott Walraven released C.L.,

who immediately started his truck and drove home.

       {¶ 10} In the aftermath, Wilder had made his way to the garage and collapsed.

Several of C.L.’s swipes with the knife had connected with Wilder’s legs. One of them

had cut Wilder’s femoral artery, which proved fatal.

       {¶ 11} Washington County Deputy Sheriff Brian Lockhart interviewed C.L. early

the next morning. Lockhart observed bruises on C.L., scrapes on his hands and fingers

consistent with being on the ground, and swelling of C.L.’s head. Lockhart listened to

C.L.’s version of the events, which matched his later in-court testimony.

       {¶ 12} Several days later, C.L. was continuing to have dizzy spells and visited a

doctor. C.L. learned he had suffered a concussion.

       {¶ 13} The state charged C.L. with negligent homicide in violation of R.C.

2903.05. C.L. proceeded with a trial to the court. The attorneys and the trial court

agreed that the facts were uncontested. C.L. never disputed that his actions resulted in

Wilder’s death. The outcome was to turn upon whether C.L. had proved self-defense.

       {¶ 14} The trial court acknowledged that C.L. was not at fault in creating the

situation that led to Wilder’s death. Wilder had thrown the first punch. The trial court,

however, took issue with C.L.’s failure to fight back. Despite C.L.’s testimony to the




                                                4
contrary and no conflicting testimony on the point, the trial court found that C.L. did not

try to get up while Wilder beat him.

       {¶ 15} The trial court was also troubled by C.L.’s using a knife when Wilder was

using only his fists. “At no time did [C.L.] attempt to get up, or even fight back with his

arms and fists.” “The use of the knife by [C.L.] was so grossly disproportionate to the

perceived threat and was not warranted under the circumstances * * *. He was not in

imminent danger of death or great bodily harm such that the use of the knife was his

only means of escape.”

       {¶ 16} Thus, the trial court found that C.L. had not proved self-defense and

adjudged him a delinquent child. C.L. now appeals.

                              ASSIGNMENTS OF ERROR

       I.     [C.L.] proved by a preponderance of the evidence that he acted in self-

              defense; therefore, the juvenile court erred when it adjudicated him

              delinquent of negligent homicide.

       II.    [C.L.’s] adjudication of negligent homicide was supported by insufficient

              evidence, and is against the manifest weight of the evidence.

       {¶ 17} Although C.L. lists two assignments of error, they are intertwined. First,

C.L. does not address the applicable standard of review for the first assignment of error.

Second, C.L. makes two separate arguments in his second assignment of error.

Overall, he argues that the state presented insufficient evidence to convict him of

negligent homicide, and the trial court’s judgment, convicting him because he did not

establish self-defense, was against the manifest weight of the evidence. Thus, we

consider appellant’s assignments of error together.



                                                  5
                                    Standard of Review

       {¶ 18} “ ‘When an appellate court concludes that the weight of the evidence

supports a defendant’s conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction.’ State v. Puckett [191 Ohio App.3d 747],

2010-Ohio-6597, at ¶ 34. ‘Thus, a determination that [a] conviction is supported by the

weight of the evidence will also be dispositive of the issue of sufficiency.’ Id., quoting

State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942, at ¶ 9, in turn, quoting

State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462, 1997 WL 600669.

Therefore, we first consider whether [appellant’s conviction is] against the manifest

weight of the evidence.” (Footnote omitted.) State v. Leslie, 4th Dist. Nos. 10CA17, and

10CA18, 2011-Ohio-2727, at ¶ 15. See also State v. Bostwick, 4th Dist. No. 10CA3382,

2011-Ohio-3671, at ¶ 10.

       {¶ 19} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review 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.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24, citing State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court “may

not reverse a conviction when there is substantial evidence upon which the [trier of fact]

could reasonably conclude that all elements of the offense have been proven beyond a

reasonable doubt.” State v. Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991),




                                                 6
citing State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), at paragraph two of

the syllabus.

       {¶ 20} We must still remember that the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by the trier of fact. State

v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995), citing State v. Grant, 67

Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). 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.” Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

                                      Legal Analysis

       {¶ 21} R.C. 2903.05(A) provides, “No person shall negligently cause the death of

another * * * by means of a deadly weapon or dangerous ordnance as defined in section

2923.11 of the Revised Code.”       R.C. 2923.11(A) defines “deadly weapon” 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.”

       {¶ 22} However, even if the state had proven the elements of negligent homicide,

appellant could not be convicted if he had demonstrated that he acted in self-defense.

“Self-defense is an affirmative defense that requires a defendant to prove three

elements by a preponderance of the evidence: ‘(1) the defendant was not at fault in

creating the violent situation, (2) the defendant had a bona fide belief that she was in

imminent danger of death or great bodily harm and that her only means of escape was

the use of force, and (3) that the defendant did not violate any duty to retreat or avoid

the danger.’ ” State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, at



                                                 7
¶ 36, quoting State v. Thomas, 77 Ohio St.3d 323, 326, 1997-Ohio-269, 673 N.E.2d

1339 (1997), and citing R.C. 2901.05.

      {¶ 23} “[T]he second element of self-defense is a combined subjective and

objective test.” Thomas at 330. The person’s belief must be objectively reasonable

under the circumstances, and he must subjectively believe he needed to resort to force

to defend himself. Thomas at 330-331. Regarding the subjective component, “ ‘[a]

nervous, timid, easily frightened individual is not measured by the same standard that a

stronger, calmer, and braver man might be.’ ” State v. Cope (1946), 78 Ohio App. 429,

438, 67 N.E.2d 912, quoting Nelson v. State (1932), 42 Ohio App. 252, 181 N.E. 448,

citing State v. Sheets (1926), 115 Ohio St. 308, 152 N.E. 664.

      {¶ 24} Moreover, we have stated, “A defendant is privileged to use only that force

that is reasonably necessary to repel the attack.” State v. Hendrickson, 4th Dist. No.

08CA12, 2009-Ohio-4416, at ¶ 23, citing State v. Williford, 49 Ohio St.3d 247, 249, 551

N.E.2d 1279 (1990), citing State v. McLeod, 82 Ohio App. 155, 157, 80 N.E.2d 699

(1948). That is, a person cannot continue to use force against the original aggressor

once the imminent danger of death or serious bodily injury dissipates; the defender

cannot become the aggressor. In Hendrickson, the defendant was stabbed by his ex-

girlfriend, but he then disarmed her and stabbed her 14 times in the neck, heart, lung,

abdomen, hip, and shoulder. The ex-girlfriend also had defensive wounds, indicating

that once the defendant had disarmed her, he became the aggressor and was not

acting in self-defense when he killed her. Thus, he was not entitled to claim self-

defense.




                                               8
       {¶ 25} Finally, “[t]he elements of self-defense are cumulative, and if defendant

fails to prove any one of the elements by a preponderance of the evidence, he fails to

demonstrate that he acted in self-defense.” (Emphasis sic.) Hendrickson at ¶ 23, citing

State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 72, citing State

v. Jackson (1986), 22 Ohio St.3d 281, 284, 490 N.E.2d 893.

       {¶ 26} Here, we find that C.L. proved the elements of self-defense by a

preponderance of the evidence. First, the trial court explicitly found that C.L. was not at

fault in creating the violent situation, as Wilder threw the first punch.

       {¶ 27} Second, C.L. possessed a bona fide (good faith) belief that he was in

imminent danger of death or great bodily harm and that his only means of escape was

the use of force. Subjectively, C.L. testified that he had been scared and panicked

because he had never been in a fight before. C.L. also testified that his consciousness

was waning and that his vision was starting to go dark. C.L. testified that he had tried to

get up, but was able to get only onto his elbows, as Wilder was continually pummeling

his head. Further, C.L. knew that Wilder had been drinking that evening, and given the

way Wilder was attacking him, C.L. was unsure whether Wilder would stop hitting him.

Thus, C.L. had an honest, bona fide belief that he was in imminent danger of death or

serious bodily injury.

       {¶ 28} Objectively, the situation was more serious than the trial court

acknowledged. Wilder, an intoxicated 240-pound football player, was beating C.L. in

the head repeatedly. A blow to a person’s head can be fatal, even if the attacker uses

only his fists. See State v. Smith, 4th Dist. No. 06CA2893, 2007-Ohio-1884 (affirming

convictions for felonious assault and involuntary manslaughter when defendant landed



                                                  9
a single closed-fist blow to the victim’s head); State v. Brown, 10th Dist. No. 03AP-130,

2004-Ohio-2990, at ¶ 87-88 (affirming conviction for attempted murder where defendant

had repeatedly struck the victim with his fists). Regardless of C.L.’s size, he was at a

disadvantage when he was blind-sided and knocked to the ground, followed by a

blitzkrieg of blows to his head. It is not objectively unreasonable to foresee serious

injury, or even death, in this particular scenario.

       {¶ 29} Concerning C.L.’s use of force, he testified that he had tried to get up and

had tried to defend himself, to no avail. While the trial court stated that C.L. had made

no attempt to extricate himself from the situation, the evidence demonstrates the

opposite. The trial court cannot fault C.L. for not attempting to fight back with his fists

when the testimony revealed that C.L. had never been in a fight—he did not know how

to intelligently fight back—and C.L. testified that he tried to escape. The law does not

require one who is in fear of death or serious bodily harm to attempt to use nondeadly

force first, wasting precious seconds and further imperiling himself. Thus, C.L.’s fear of

death or serious bodily injury was objectively and subjectively reasonable.

       {¶ 30} Third, C.L. did not violate any duty to retreat or avoid the danger. C.L. did

not instigate the fight. He did everything in his power to leave. Once Wilder stopped

hitting him, C.L. immediately ran to his truck to leave. Even after receiving a second

beating from Scott Walraven, C.L.’s first action was to drive away.

       {¶ 31} Finally, C.L.’s use of force was not grossly disproportionate to the force

that Wilder had used. As explained above, C.L. did not use more force than was

necessary to repel the attack.      C.L.’s use of the knife was congruent with Wilder’s




                                                  10
attack: once the beating ceased, the use of the knife ceased. C.L. never became the

aggressor. Compare Hendrickson, 2009-Ohio-4416.

         {¶ 32} Again, the trial court was obviously troubled by C.L.’s introducing a knife

into a fistfight. But this was not an orderly fight where the Queensberry Rules applied,

the participants greeted each other beforehand, squared up to each other, and fought a

clean fight. Wilder ambushed C.L. with an unseen punch and knocked him to the

ground. Wilder then kept C.L. on the ground as he beat C.L.’s head.

         {¶ 33} “[T]he law of self-defense does not distinguish between the weapons used

to defend oneself but only between deadly force and non-deadly force. Provided that a

person is justified in using deadly force, the defender’s choice of weapon is largely

irrelevant, be it a gun or the defender’s fists. We therefore interpret the trial court’s

statements objecting to [C.L.’s] use of a [knife] as denying him the right to use deadly

force.” State v. Miller, 149 Ohio App.3d 782, 2002-Ohio-5812, 778 N.E.2d 1103, at ¶ 6.

         {¶ 34} Other jurisdictions have reached similar results in similar situations. A

bankruptcy court in Wisconsin, when determining whether a defendant’s debt for the

death of another was dischargeable, found that the teen had acted in self-defense. In

re Mathews, (Bankr. E.D.Wis.2010), 433 B.R. 732. Even though the defendant had

driven to a party to fight another student, the court analyzed the defendant’s actions at

the time of the altercation. The defendant’s friends had abandoned him, leaving him in

the middle of a crowd of drunken teenagers who were yelling for the two combatants to

fight.   The other teenager was making intimidating gestures and then pushed the

defendant. “[S]urrounded by a large[,] hostile crowd of drunken teenagers from a rival

high school, having been taunted and pushed, and hearing the crowd incite [the



                                                 11
decedent] to hit him, the Court finds that a 16-year old would reasonably believe that his

life was in danger or that he would suffer grave bodily harm if he did not strike. That he

struck only one blow is evidence of the reasonableness of the response.” Id. at 737.

Unfortunately, the defendant’s single blow to the teen’s head proved fatal.

      {¶ 35} Likewise, the Court of Appeals of Minnesota reversed the assault

convictions of a 15-year-old girl who had stabbed two persons after a mob of teenagers

rushed the defendant and started hitting and kicking her. In re K.M.M.N. Minn.App.No.

A03-759 (Mar. 16, 2004). A group of teenagers had assaulted the defendant the two

previous days, and the assaults prompted her to bring a knife to the skating rink on the

night in question. Although the appellate court described the defendant’s decisions to

go to a place where she was likely to be assaulted, to bring a weapon, and to fail to

inform security that there may be an altercation as “irresponsible and defy adult

common sense,” they did not negate her claim of self-defense. The defendant was in

serious danger when a mob of teenagers began assaulting her, and her response to

wildly lash out with the knife was a reasonable response to such peril.

      {¶ 36} Thus, we hold that C.L. proved self-defense by a preponderance of the

evidence, and the trial court’s decision was against the manifest weight of the evidence.

Accordingly, we sustain C.L.’s second assignment of error and reverse the trial court’s

judgment. C.L. is ordered discharged.

                                                                     Judgment reversed.

      ABELE, KLINE, and MCFARLAND, JJ., concur.




                                               12
