[Cite as State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95861


                                      THE STATE OF OHIO,

                                                  APPELLEE,

                                                     v.

                                             KOZLOSKY,

                                                  APPELLANT.




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-529206

           BEFORE: BLACKMON, P.J., ROCCO, J., and E. GALLAGHER, J.

           RELEASED AND JOURNALIZED: September 22, 2011
       William D. Mason, Cuyahoga County Prosecuting Attorney, and
       John R. Kosko, Assistant Prosecuting Attorney, for appellee.

       Timothy F. Sweeney, for appellant.



       PATRICIA ANN BLACKMON, Presiding Judge.

       {¶ 1} Appellant, Carl Kozlosky, appeals his convictions and assigns ten errors for our

review.1 Having reviewed the record and pertinent law, we reverse the convictions and

remand for a new trial. The apposite facts follow.

       {¶ 2} Carl Kozlosky admitted shooting Andre Coleman in self-defense. The first

trial was scheduled in March 2010. At the close of the state’s questioning of its primary

witness, Valerie McNaughton, the prosecutor asked her, “[D]id Carl ever express a

willingness or desire to kill Andre prior to killing him?” Immediately, the defense objected;

but before the judge could respond to the objection, Valerie responded, “Yeah.” The court

offered a curative instruction and dismissed the jury. The court then asked the defense

whether it was moving for a mistrial. The defense responded in the affirmative, and the

judge declared a mistrial.

       {¶ 3} The defense later moved to dismiss the case because of double jeopardy,

arguing that this case was obviously weak and that the prosecutor had goaded the defense

into seeking a mistrial. The trial court denied the motion, and a second trial commenced in



       See appendix.
       1


                                             2
August 2010. The state again pursued its premise “that Kozlosky killed Andre Coleman

without justification” and called several witnesses to substantiate that fact. However, the

evidence showed otherwise.

                                            Jury Trial

       {¶ 4} McNaughton testified again and described her eight-year on-and-off

tumultuous relationship with Coleman, which was fraught with physical abuse. About two

months prior to the shooting, she began renting the upstairs of Kozlosky’s home, and about a

week later, she asked Kozlosky to allow Coleman to move into the house, and Kozlosky

consented. However, because of the constant fights between her and Coleman, Kozlosky

ultimately evicted Coleman.

       {¶ 5} McNaughton testified that around 4 a.m., on September 20, 2009, Nicki, a

woman she casually knew, Doug Kapel, and Coleman arrived in a red truck. Nicki invited

McNaughton to party with them, and she accepted. They stopped to buy crack cocaine and

proceeded to a motel, where they remained for several hours abusing drugs.

       {¶ 6} McNaughton testified that after consuming all the crack cocaine they had

purchased, they bought more, returned to the motel, and consumed more crack cocaine.

McNaughton stated that once they had consumed all of the crack cocaine, Coleman

encouraged her to make sexual advances towards Kapel in an effort to influence Kapel to buy

more drugs. McNaughton refused, and Coleman became angry. As a ruse to leave the motel,




                                             3
McNaughton told Coleman that she needed to meet someone who had agreed to advance her

drugs.

         {¶ 7} McNaughton testified that the foursome drove to the parking lot of a Save-A-

Lot supermarket located near Kozlosky’s home. McNaughton exited the truck while the

others remained inside; she then surreptiously slipped away and made her way back home.

Once home, McNaughton told Kozlosky that she had left Coleman a few streets away, that he

was very upset, and that he would be there shortly looking for her.

         {¶ 8} A short time later, McNaughton observed Coleman exiting the red truck driven

by Kapel, via a computer-operated security camera that monitors Kozlosky’s driveway.

McNaughton hysterically began yelling that Coleman had arrived and that they should lock

the doors. Coleman immediately began banging on the locked back door; he kicked out the

bottom panel and entered the house.

         {¶ 9} McNaughton stated that Kozlosky told Coleman he was not allowed on the

property, but Coleman pushed past him and came towards her in the living room.

McNaughton yelled that the police had been called and that Kapel was pulling out of the

driveway, which prompted Coleman to retreat and exit Kozlosky’s house.

         {¶ 10} McNaughton hid in the garage until Coleman left; she stayed for about 10

minutes, and reentered the house when she thought it was safe. When she entered the house,

McNaughton found Coleman standing in the kitchen. Coleman immediately started yelling at

McNaughton to give him money, followed her into the living room, grabbed her by the hair,


                                              4
threw her to the ground, and began hitting her. McNaughton testified that as Coleman was

beating her, Kozlosky fired two shots, hitting Coleman, who spun around and fell to the

ground. McNaughton testified that Kozlosky proceeded to shoot Coleman several times as

he lay on the floor.

       {¶ 11} At trial, 54-year-old Kozlosky, a laid-off engineer and part-time community

college professor, as well as a United States Air Force veteran, took the stand in his own

defense. Kozlosky testified that in June 2009, after being laid off from his job with Sprint in

2008, he rented the upstairs unit of his house to Carolyn Walker. McNaughton occasionally

visited Walker and later sought Kozlosky’s permission to share the unit with Walker.

Kozlosky consented, and McNaughton moved in July 2009.

       {¶ 12} Walker moved out of the house at the end of July 2009, and McNaughton

sought permission from Kozlosky for Coleman to move in, which he granted. From the very

beginning, Coleman and McNaughton argued and fought constantly, with Coleman violently

beating McNaughton, especially when he was coming down from a crack-cocaine high.

Kozlosky testified that by the end of August 2009, the fighting between Coleman and

McNaughton had become so frequent and disruptive to himself and his neighbors that he had

ordered him to leave his house. Kozlosky escorted Coleman off his property and told him not

to return. But Coleman was uncooperative. A loud argument ensued, and neighbors

summoned the police. Coleman eventually left, and Kozlosky was cited for disorderly




                                              5
conduct. Kozlosky wore a leather pocket holster with a gun. He had a concealed carry

permit; however, the police took the weapon and told him he could pick it up the next week.

       {¶ 13} After Coleman’s departure, McNaughton warned him about Coleman’s violent

past. McNaughton showed Kozlosky information on Cuyahoga County’s website regarding

Coleman’s 1990 conviction for shooting a man to death, a conviction for carrying a

concealed weapon, and numerous drug-related offenses.

       {¶ 14} Kozlosky testified that on September 20, 2009, Coleman, despite protests,

entered his house three separate times. First, Coleman began banging on the locked door

shortly after McNaughton had arrived home. Kozlosky and McNaughton shouted that

Coleman was not allowed inside, but he ignored them, kicked out the bottom panel of the

door, and crawled through into the kitchen. Coleman finally left when McNaughton told him

that the police had been called.

       {¶ 15} While Kozlosky was repairing the door that Coleman had kicked in, Coleman

returned. Kozlosky demanded that he leave, but Coleman brushed passed him, asked if

Kozlosky wanted to “shoot it out,” and proceeded to search for McNaughton. While

Kozlosky was in the house, Coleman held one hand behind his back signaling that he had a

gun. Coleman left after his attempts to locate McNaughton proved unsuccessful.

       {¶ 16} Coleman returned a third time while Kozlosky was still repairing the broken

door. Again, Kozlosky demanded that Coleman leave, at which time McNaughton entered

the house. Coleman immediately grabbed McNaughton by her hair and began beating her.


                                            6
Kozlosky protested, as McNaughton yelled for help. Kozlosky demanded that Coleman stop

the assault, but when Coleman reached behind his back for his gun, Kozlosky pulled his

revolver and shot Coleman. Kozlosky testified that when he shot Coleman, Coleman spun

around, fell to the ground, and began to twitch, a scenario that prompted Kozlosky to fire

several more times.

       {¶ 17} Kozlosky described his thoughts at the moment of the shooting: “I thought I

was dead. I thought, I was panicking, I thought it just about, I thought he was going to shoot

me. My gun was brand new, I never tried it. I didn’t even know if it would work. I was

afraid it would fail me and he was going to shoot me. I was pretty much panicking at the

time.” Kozlosky maintained, “I thought he was going to shoot me.”

       {¶ 18} The jury found Kozlosky guilty of murder and the attached one- and three-year

firearm specifications. The trial court sentenced Kozlosky to a prison term of 15 years to life

for the murder conviction and three years for the firearm specifications. Kozlosky now

appeals.

                                   Manifest Weight of Evidence

       {¶ 19} We begin our analysis with the tenth assigned error, which we find dispositive

of the instant appeal. Kozlosky argues that his convictions are against the manifest weight of

the evidence. We agree.




                                              7
       {¶ 20} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the

Ohio Supreme Court addressed the standard of review for a criminal manifest-weight

challenge, as follows:

               The criminal manifest-weight-of-the-evidence standard was explained
       in State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In
       Thompkins, the court distinguished between sufficiency of the evidence and
       manifest weight of the evidence, finding that these concepts differ both
       qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held
       that sufficiency of the evidence is a test of adequacy as to whether the
       evidence is legally sufficient to support a verdict as a matter of law, but weight
       of the evidence addresses the evidence's effect of inducing belief. Id. at 386-
       387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence
       is more persuasive—the state’s or the defendant’s? We went on to hold that
       although there may be sufficient evidence to support a judgment, it could
       nevertheless be against the manifest weight of the evidence. Id. at 387, 678
       N.E.2d 541. “When a court of appeals reverses a judgment of a trial court on
       the basis that the verdict is against the weight of the evidence, the appellate
       court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of
       the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida
       (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

       {¶ 21} Kozlosky argues that the jury lost its way in convicting him of murder.

Specifically, he argues that he was acting in self-defense when he shot and killed Coleman.

       {¶ 22} Self-defense is an affirmative defense that, if proved, relieves a defendant of

criminal liability for the force that the defendant used. “ ‘The burden of going forward with

the evidence of an affirmative defense, and the burden of proof, by a preponderance of the

evidence, for an affirmative defense, is upon the accused.’ ” State v. Suarez, 2d Dist. No.

10CA0008, 2011-Ohio-1438, ¶ 10, quoting R.C. 2901.05(A).




                                                8
       {¶ 23} The accused must show each of three elements in order to establish self-

defense: (1) the accused was not at fault in creating the situation; (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 was the use of force; (3) the accused did not violate any duty to retreat

or avoid the danger. State v. Clellan, 10th Dist. No. 09AP-1043, 2010-Ohio-3841. See also

State v. Melchior (1978), 56 Ohio St.2d 15, 20-21, 381 N.E.2d 195; State v. Ward, 168 Ohio

App.3d 701, 2006-Ohio-4847, 861 N.E.2d 823, ¶ 30; State v. Ludt, 180 Ohio App.3d 672,

2009-Ohio-416, 906 N.E.2d 1182,¶ 21.

       {¶ 24} R.C. 2901.09(B) codifies a form of self-defense known as the “Castle

Doctrine” and provides:

              For purposes of any section of the Revised Code that sets forth a
       criminal offense, a person who lawfully is in that person’s residence has no
       duty to retreat before using force in self-defense, defense of another, or
       defense of that person’s residence, and a person who lawfully is an occupant of
       that person’s vehicle or who lawfully is an occupant in a vehicle owned by an
       immediate family member of the person has no duty to retreat before using
       force in self-defense or defense of another.

       {¶ 25} This statute creates a rebuttable presumption, and the burden to prove that the

charged individual was not acting in self-defense falls on the state. See Senate Bill 184

(“S.B. 184”). “Under the Castle Doctrine [S.B. 184], a person is presumed to have acted in

self-defense when attempting to expel or expelling another from [his] home who is

unlawfully present. Further, under the Castle Doctrine, a person attempting to expel or

expelling another is allowed to use deadly force or force great enough to cause serious bodily


                                              9
harm. There is also no duty to retreat inside one’s home anymore.” State v. Johnson,

Cuyahoga App. No. 92310, 2010-Ohio-145, ¶ 18.

      {¶ 26} In the instant case, nothing in the record indicates that Kozlosky was at fault in

creating the incident that led to Coleman’s death. To the contrary, at trial, the evidence

unequivocally established that Coleman, who had previously been evicted from the residence,

was unlawfully in the house on the day he was shot and killed by Kozlosky.

      {¶ 27} It is undisputed that Coleman entered Kozlosky’s home three times without

permission and against protestations and that he ignored all demands to leave. In his first

unlawful entry, Coleman kicked out the bottom panel of the back door, crawled through, and,

with impunity, remained in the house until McNaughton yelled that the police had been

summoned. Coleman returned a second time within minutes after going next door to search

for McNaughton. He then menacingly searched throughout the house for McNaughton,

despite Kozlosky’s repeated demands that he leave.

      {¶ 28} In his third unlawful entry, Coleman immediately attacked McNaughton and

began beating her. Kozlosky testified:

       Q.    What happens next?

       A.     She yelled out to me, yelled out my name. So I say “Stop that, you can’t be
       doing that.” He turns to her, looks over at me and he goes to pull his gun out from
       behind his back. When he does that, as soon as his arms starts to move, I draw my
       gun and hold it. I watched his hand come out from behind his back. As soon as I see
       he had something in it, I begin to fire and pulled the trigger as fast as I can.

       Q.    How many times did you shoot, do you remember?


                                             10
      A.     I can’t remember, but I - - I looked down at my gun to make sure it was
      pointing in this direction. * * * He turned like this until his back was facing me.
      When I saw that, that’s when I stopped. Then he fell forward like that, with his feet
      out here and his head between the two couches.


      Q.     After you fired the shots, at some point, what did you do?

      A.      After I fired and he fell, I walked over to see if he was moving or if I hit him. I
      tried to see if he was moving or if I hit him. I tried to see if I had actually hit him or if
      I missed or what * * *.

      Q.     At some point, what did you do after you were looking over him?

      A.      Well I am looking over close. I did have my gun there pointing, holding it
      right next to him just to make sure, in case I just grazed him or he’s about to jump
      back up at me. I saw movement and I panicked and pulled the trigger again, and I
      don’t know if the gun actually went off or if I had shot all the rounds already or if I
      did fire again.

      ***

      Q.     Now, Mr. Kozlosky, what is going through your mind at the time in which this
      is occurring?

      A.    I thought I was dead, I thought, I was panicking, I thought it just about, I
      thought he was going to shoot me. My gun was brand new, I never tried it. I didn’t
      even know if it would work. I was afraid it would fail me and he was going to shoot
      me. I was pretty much panicking at the time.

      {¶ 29} Here, Kozlosky’s testimony establishes that he had a bona fide belief that he

was in imminent danger of death or great bodily harm at the hands of Coleman and that the

only means of escape was the use of force. Kozlosky had recently learned from McNaughton

that Coleman had killed a man in 1990 and had been convicted of carrying a concealed

weapon, and he had personally observed Coleman’s violent behavior towards McNaughton.


                                               11
Given this knowledge and Coleman’s actions of unlawfully entering the house three separate

times that day, as well as Coleman’s statement about “shooting it out,” Kozlosky’s belief that

he was in imminent danger was well founded.

       {¶ 30} Finally, under the Castle Doctrine, Kozlosky had no duty to retreat inside his

own home. Johnson, 2010-Ohio-145. Therefore, we find that Kozlosky has established all

three elements of the affirmative defense of self-defense, and the Castle Doctrine fully

applies to the facts of the instant case. We also find that the jury appeared confused about

the jury instruction, as evidenced by questions regarding the definition of “unlawful entry”

and “Castle Doctrine.” Further, the jurors queried whether the Castle Doctrine applied to

both self-defense of the owner of the home and anyone in the home.

       {¶ 31} Finally, the record indicates that two of the jurors did independent research on

the Castle Doctrine and discussed it with the other jurors. We conclude that the jury lost its

way in the instant case, and Kozlosky’s convictions are against the manifest weight of the

evidence. Accordingly, we sustain the tenth assigned error and reverse his convictions. We

reluctantly remand the matter for a new trial because we are restrained by the standard of

review under the manifest weight of the evidence and cannot discharge Kozlosky.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541. Tibbs, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652.

       {¶ 32} Our disposition of the tenth assigned error renders the remaining errors moot.

See App.R. 12(A)(1)(c).


                                             12
                                                                          Judgment reversed

                                                                        and cause remanded.

                                _____________________

ROCCO and GALLAGHER, JJ., concur.

                                _____________________

                                       APPENDIX

Assignments of Error

      “I. Because the prosecutor in the first trial intended to provoke the defendant
      into moving for a mistrial, the trial court erred in denying Kozlosky’s pretrial
      motion to dismiss the indictment as barred by the double jeopardy clauses in
      the State and Federal Constitutions.”

      “II. Kozlosky was denied due process of law when the trial court failed to
      properly instruct the jury on the affirmative defense of self-defense as
      applicable to a shooting that occurs in the defendant’s own home against a
      victim claimed by defendant to be an intruder in the home.”

      “III. Kozlosky was denied due process of law and a fair trial when the trial
      court failed to instruct the jury on the affirmative defense of ‘defense of
      another’ and failed to include ‘defense of another’ within its instruction on the
      castle doctrine.”

      “IV. Kozlosky was denied due process of law and a fair trial when the trial
      court erroneously instructed the jury that Kozlosky had a duty to retreat in his
      own home.”

      “V. Kozlosky was denied due process of law and a fair trial when the trial
      court failed to affirmatively instruct the jury that Coleman’s entry into
      Kozlosky’s home was, for all purposes relevant to the affirmative defense of
      under R.C. 2901.05(B), unlawful and without privilege to do so.”

      “VI. The trial court erred in denying the defendant’s motion for judgment of
      acquittal made at the conclusion of all the evidence because the evidence
                                             13
established the affirmative defense of self-defense and/or defense of another
by a preponderance of the evidence and the presumption of self-defense was
never rebutted by the state.”

“VII. The misconduct of two jurors during deliberation in conducting their
own research concerning the castle doctrine, and sharing their findings with
the rest of the jury, required that the court declare a mistrial, and the court’s
failure to do so was prejudicial error which denied Kozlosky a fair trial before
an impartial jury.”

“VIII. When the jury reported its inability to reach a verdict after many hours
of deliberation over two days, the jury was deadlocked and the court should
have declared a mistrial at that time. The court’s failure to do so, and to
instead give the jury a Howard Charge, was prejudicial error that denied
Kozlosky his rights to a fair trial before an impartial and uncoerced jury.”

“IX. The trial court erred in denying Kozlosky’s post-trial motions for a new
trial and for judgment of acquittal.”

“X. Kozlosky’s convictions are against the manifest weight of the evidence.”




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