[Cite as State v. Rothermel, 2014-Ohio-3168.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                          :
                                                        :
          Plaintiff-Appellee                            :     Appellate Case No.     26004
                                                        :
 v.                                                     :     Trial Court Case No.
                                                        :     2013-CRB-6843
 BRYON J. ROTHERMEL                                     :
                                                        :
          Defendant-Appellant                           :     (Criminal Appeal from
                                                        :     (Municipal Court)

                                                ...........

                                                OPINION

                               Rendered on the 18th day of July, 2014.

                                                ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 West Third Street,
Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
       Attorney for Defendant-Appellant

                                                .............
                                                                                                      2


WELBAUM, J.

            {¶ 1}   Defendant-appellant, Bryon J. Rothermel, appeals from his conviction in the

Dayton Municipal Court for one count of assault following a bench trial. For the reasons

outlined below, the judgment of the trial court will be affirmed.



                                  Facts and Course of Proceedings

            {¶ 2}   On July 19, 2013, Rothermel was arrested and charged with assault in violation

of R.C. 2903.13(A), a misdemeanor of the first degree; menacing in violation of R.C. 2903.22, a

misdemeanor of the fourth degree; and criminal damaging in violation of R.C. 2909.06(A)(1), a

misdemeanor of the second degree.           The charges arose from an argument and physical

altercation between Rothermel and his friend/coworker, Johnathan Crago. Rothermel pled not

guilty to the charges and the matter proceeded to a bench trial. The following facts were elicited

at trial.

            {¶ 3}   On the evening of July 19, 2013, Crago went to Rothermel’s residence at 1047

Patterson Road Dayton, Ohio, unannounced.             Rothermel testified that he was inside his

residence when Crago unlocked the gate on his property, entered his backyard, and proceeded to

scream death threats at him. Rothermel claimed that he was “terrified” and thought Crago was

going to shoot him. Trans. (Oct. 7, 2013), p. 49. In response, Rothermel testified that he

grabbed his gun and exited his house from the front door. He claimed that Crago approached

him on his front porch waving his arms and screaming that he was going to kill him.

            {¶ 4}   While Rothermel testified that Crago attacked him, he later admitted that Crago

never actually hit him and that he never saw Crago carrying a gun. Despite this, Rothermel
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testified that he began punching Crago to the point where Crago “went down the steps” and fell

over his motorcycle parked on Rothermel’s driveway. Id. at 50. He also testified that the first

time he hit Crago, he “hit him with the barrel of [his] pistol.”       Id. at 35.   According to

Rothermel, Crago would still not leave, so he “hit him a few more times” and “raised [his gun]

up” whenever Crago approached him. Id. at 50, 54. Rothermel claimed that Crago eventually

began pushing his motorcycle down the driveway to leave; however, by that time, his neighbor

had called the police. Not wanting Crago to leave before the police arrived, Rothermel testified

that he pushed Crago off his motorcycle “to keep him there.” Id. at 55.

       {¶ 5}    Rothermel’s next-door neighbor, Richard Riblet, testified that he saw Rothermel

and Crago arguing from his window. According to Riblet, Rothermel and Crago were standing

20 feet apart on Rothermel’s driveway when Riblet first observed them. Riblet saw Rothermel

point his gun at Crago and heard Rothermel tell Crago that he was going to kill him if he did not

leave. Riblet testified that “[Crago] was trying to leave and he had gotten to the end of the

driveway and then [Rothermel] ran back down there and shoved him off the motorcycle[.]” Id.

at 11. He also saw Rothermel strike Crago down the side of his head and face with his gun

while Crago was “off of the curb standing right on the street[.]” Id. at 10. Riblet testified that

he thought Rothermel was going to shoot Crago, so he called the police. After calling the police,

Riblet testified that he shouted at Rothermel informing him that the police were on their way.

According to Riblet, the police arrived just seconds after Rothermel struck Crago with his gun.

       {¶ 6}    Officer Joseph Sheen of the Dayton Police Department was the first officer to

arrive at the scene. Sheen testified that when he first arrived at Rothermel’s residence, he saw

two gentlemen standing in the driveway and a damaged motorcycle lying between the driveway’s
                                                                                                  4


apron and the street. Officer Robert Orndorff of the Dayton Police Department was the second

officer to arrive at the scene, and Orndorff testified that when he first made contact with Crago,

he observed Crago crying and fresh blood coming from his ear.

       {¶ 7}    After both parties rested at trial, the trial court made a ruling from the bench

finding Rothermel not guilty of menacing and criminal damaging, but guilty of assault. The

court also indicated that self-defense did not apply, because Rothermel used physical force

against Crago without such force being used against him. Thereafter, the trial court imposed a

180-day jail sentence, which was suspended; one year of community control sanctions; a $500

fine, $400 of which was suspended; and 40 hours of community service. The trial court also

ordered Rothermel’s weapon to be destroyed.

       {¶ 8}    Rothermel now appeals from his assault conviction, raising one assignment of

error for review.



                                       Assignment of Error

       {¶ 9}    Rothermel’s sole assignment of error is as follows:

       THE TRIAL COURT’S VERDICT SHOULD BE REVERSED AS IT WAS

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 10} Under his sole assignment of error, Rothermel contends that the trial court erred

in convicting him of assault, because the manifest weight of the evidence establishes that he acted

in self-defense when striking Crago.

       {¶ 11} We note that “[w]hen a conviction is challenged on appeal as being against the

weight of the evidence, an appellate court must review the entire record, weigh the evidence and
                                                                                                   5


all reasonable inferences, consider witness credibility, 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.’ ” State v.

Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being against the

manifest weight of the evidence ‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       {¶ 12} When self-defense is raised as an affirmative defense, as it is here, different

standards apply depending on whether the defendant responded with deadly or non-deadly force.

State v. New, 10th Dist. Franklin No. 92AP-904, 1994 WL 521253, *2 (Sept. 20, 1994).

“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).

       {¶ 13} “In order to establish self-defense through the use of deadly force, ‘a defendant

must prove the following elements: (1) that the defendant was not at fault in creating the situation

giving rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent

danger of death or great bodily harm and that his only means of escape from such danger was in

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

danger.’ ” State v. Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶ 36, quoting

State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). (Other citation omitted.) “ ‘If

the defendant fails to prove any one of these elements by a preponderance of the evidence he has

failed to demonstrate that he acted in self-defense.’ ” (Emphasis sic.) Id., quoting State v.
                                                                                                 6


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

       {¶ 14} The second element–whether the defendant had a bona fide belief that he was in

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

deadly force–“requires consideration of the force that was used in relation to the danger the

accused believed he was in.” State v. Bayes, 2d Dist. Clark No. 00CA0032, 2000 WL 1879101,

*4 (Dec. 29, 2000). This is a subjective test concerning whether the degree of force was

reasonable as to the accused. Id., citing State v. Koss, 49 Ohio St.3d 213, 215, 551 N.E.2d 970

(1990). (Other citation omitted.) “Nevertheless, whether the circumstances which created that

reasonable belief actually existed must be determined objectively.” Id.

       {¶ 15} It is also well established that a defendant may only use “ ‘that force which is

reasonably necessary to repel the attack.’ ” State v. Paschal, 2d Dist. Montgomery No. 18262,

2001 WL 395354, *2 (Apr. 20, 2001), quoting State v. Williford, 49 Ohio St.3d 247, 249, 551

N.E.2d 1279 (1990). “[M]ere words do not justify the use of deadly force, and ‘vile or abusive

language or verbal threats, no matter how provocative, do not justify an assault or the use of a

deadly weapon.’ ” State v. Seals, 2d Dist. Clark No. 2009 CA 4, 2010-Ohio-2843, ¶ 45, quoting

State v. Napier, 105 Ohio App.3d 713, 723, 664 N.E.2d 1330 (1st Dist.1995). “If the defendant

used more force than reasonably necessary and if the force used is greatly disproportionate to the

apparent danger, then the defense of [self-defense] is not available.” Ohio Jury Instructions, CR

Section 421.23 (Rev. Aug. 16, 2006).      “ ‘[W]hether the force used was excessive or not is a

question for the trier of facts.’ ” Bayes at *4, quoting State v. McLeod, 82 Ohio App. 155, 157,

80 N.E.2d 699 (9th Dist.1948).

       {¶ 16} In this case, Rothermel’s actions qualify as deadly force given that he delivered
                                                                                                 7


multiple punches and struck Crago on the head with the barrel of his gun. See, e.g., New, 10th

Dist. Franklin No. 92AP-904, 1994 WL 521253 at *3 (striking someone on the side of the head

with a club qualifies as deadly force); State v. Sutfin, 10th Dist. Franklin No. 91AP-305, 1991

WL 224536, *2 (Aug. 29, 1991) (hitting someone in the head with a pool cue creates a

substantial risk of causing death and qualifies as deadly force); State v. Wagner, 11th Dist. Lake

No. 99-L-043, 2000 WL 973421, *3 (July 14, 2000) (striking someone in the head with a broken

wineglass qualifies as deadly force); State v. Melendez, 8th Dist. Cuyahoga No. 97175,

2012-Ohio-2385, ¶ 28 (striking someone in the head with a bottle qualifies as deadly force).

       {¶ 17} The weight of the evidence, however, does not establish that Rothermel had a

bona fide belief that he was in danger of death or great bodily harm and that the only means of

escape was asserting such deadly force. While Rothermel testified that he was “terrified” by

Crago’s threats and that he thought that Crago was going to shoot him, the surrounding

circumstances do not warrant such a belief, as Rothermel testified that he never saw Crago

carrying a gun and that Crago never hit him. Even assuming that Rothermel was initially

threatened by Crago’s presence, any threat of imminent danger dissipated after Crago attempted

to leave.

       {¶ 18} In addition, Rothermel responded to Crago’s threats by immediately exiting his

home and confronting Crago, rather than staying inside and calling the police. In fact, at one

point Rothermel even tried to prevent Crago from leaving his property. These actions tend to

indicate that Rothermel was not as terrified by Crago’s presence as he claimed. Furthermore, the

testimony of Rothermel’s next-door neighbor, Richard Riblet, describes Rothermel as the sole

physical aggressor.
[Cite as State v. Rothermel, 2014-Ohio-3168.]
        {¶ 19} The record also demonstrates that the force used by Rothermel was

disproportionate to the danger posed by Crago, as Rothermel responded to Crago’s mere threats

by punching him repeatedly, shoving him off his motorcycle, and hitting him over the head with

his firearm while he was already off of Rothermel’s property. Rothermel opted to use physical

force against Crago despite Crago never hitting him, never brandishing a gun, and eventually

trying to leave. Therefore, the weight of the evidence clearly demonstrates that Rothermel’s

force was excessive and unnecessary.

        {¶ 20} Because the record indicates that Rothermel did not have a bona fide belief that

he was in danger of death or great bodily injury that required the use of deadly force, and because

the record clearly establishes that Rothermel used more force than reasonably necessary, the trial

court’s decision finding that he was not acting in self-defense and guilty of assault was not

against the manifest weight of the evidence.

        {¶ 21} Rothermel’s sole assignment of error is overruled.



                                                 Conclusion

        {¶ 22} Having overruled Rothermel’s sole assignment of error, the judgment of the trial

court is affirmed.

                                                .............

FROELICH, P.J. and FAIN, J., concur.



Copies mailed to:

Amy B. Musto
Marshall G. Lachman
Hon. Deirdre E. Logan
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