         [Cite as State v. Reid, 2019-Ohio-1542.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-170697
                                                        TRIAL NO. B-1503466
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

YOLANDA REID,                                       :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 26, 2019



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswall, Jr., for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}   Defendant-appellant Yolanda Reid appeals from the trial court’s

judgment convicting her, following a jury trial, of murder. In three assignments of

error, she argues that the prosecutor committed misconduct during closing

argument; that she received ineffective assistance from her trial counsel; and that the

trial court erred in instructing the jury. As Reid’s second assignment of error is

dispositive of this appeal, we do not address the merits of her first and third

assignments of error.

       {¶2}   Because Reid’s counsel was deficient for failing to request a jury

instruction on the castle doctrine set forth in R.C. 2901.09, and because Reid

suffered resulting prejudice, we reverse her conviction.


                                 Factual Background


       {¶3}   On June 27, 2015, Reid stabbed her boyfriend Melvin Hill, who died

from his injuries. The grand jury returned an indictment charging Reid with murder

in violation of both R.C. 2903.02(A) and (B).

       {¶4}   During trial, Reid argued that she had acted in self-defense. Evidence

adduced at trial established that prior to the stabbing, Reid and Hill were at Reid’s

apartment with Hill’s brother Antonio Hill (“Tony”), Hill’s nephew Terry Hill

(“Terry”), and Terry’s wife Jacqueline Hill (“Jackie”).     Tony, Terry, and Jackie

testified about the stabbing and the events preceding it.

       {¶5}   Tony testified that Reid became violent and angry when Hill refused to

help her obtain crack cocaine. He explained that Reid grabbed a butcher knife and

came at Hill. Tony was able to intervene and take the knife from Reid, who then

went into her bedroom. Tony heard Reid talking on the phone while he and Hill



                                                2
                      OHIO FIRST DISTRICT COURT OF APPEALS



remained in the kitchen. Reid then exited from the bedroom and stabbed Hill in the

chest with a different knife. Tony testified that after stabbing Hill, Reid walked

outside.   Cross-examination brought out inconsistencies between Tony’s trial

testimony and what he told police at the scene. Questions were also raised about his

memory, how much he had to drink on the day of the stabbing, and whether or not

he suffered from slight dementia.

       {¶6}   Terry testified that in the hours before the stabbing, Reid was angry

with Hill for flirting with another woman. As the two argued in Reid’s apartment,

Terry saw Reid grab a knife from a kitchen drawer. He explained that Tony took the

knife away from Reid, who then went into her bedroom. Terry testified that Reid

came back into the kitchen a short while later, stated, “I’m sick of you Melvin,” and

stabbed Hill in the chest. Like the others, Terry had been drinking that day. And he

gave inconsistent statements as to where in the apartment he was and whether he

saw the stabbing, telling the detective that he did not see the stabbing while testifying

at trial that he did. He also told the detective that Reid and Hill were tussling and

wrestling in the kitchen, although he denied that at trial.

       {¶7}   Jackie testified that prior to the stabbing, Reid was “fussing” at Hill.

Jackie witnessed Reid pushing Hill, who told Reid to leave him alone. Jackie also

saw Tony wrestle the butcher knife away from Reid, and she subsequently heard

Reid on the telephone stating that before the night was over, she was “gonna kill that

mother-fucker.” Jackie testified that Reid later “zoomed” out of the bedroom and

into the kitchen, where she stabbed Hill. Jackie admitted telling police that Reid was

accusing Hill of putting his hands on her. And like Terry, she originally told police

that she did not see the stabbing.

       {¶8}   The evidence established that, prior to stabbing Hill, Reid made a 911

call requesting assistance because Hill was assaulting her and would not leave her

apartment. Cincinnati Police Officers Dante Daniels and Kurtis Latham testified that


                                               3
                     OHIO FIRST DISTRICT COURT OF APPEALS



they were dispatched to Reid’s address. Both testified that the incident report for the

dispatch stated, “Subject refusing to leave. Subject also has assaulted her.” The

report indicated that Reid made the 911 call at 10:18 p.m. But the officers were not

dispatched to the scene of the call until 10:34 p.m. Officer Daniels testified that he

arrived at Reid’s apartment at 10:39 p.m., and that Hill had already been stabbed

when he arrived.

       {¶9}   Reid’s 911 call was entered into evidence and played for the jury. In

the call, Reid requested help because Hill would not leave her apartment despite

Reid’s request for him to do so, and he was putting [inaudible] on her. A jury could

reasonably infer she said “hands.” Reid told the operator that Hill did not live in her

apartment and was just a visitor. While portions of the call are unintelligible, Reid

told the operator at various times that Hill was getting physical, that he had

assaulted her, and that he had put his hands on her. Hill can be heard in the

background stating that he, rather than Reid, had scratches and bruises on his body.

       {¶10} Officers Daniels and Latham, along with Cincinnati Police Officer
Chris Manson, testified that Reid returned to the apartment while they were

responding to the scene, stated, “I did it,” and told them to get Hill out of her

apartment.

       {¶11} Cincinnati Police Detective David Gregory testified that he interviewed
Reid after she was taken into custody. In a video recording of the interview, which

was entered into evidence and played for the jury, Reid admitted to stabbing Hill and

discussed the events preceding the stabbing.        Reid stated that she consumed

approximately three cups of liquor throughout the evening. Reid’s statements were

rambling, and she did not provide a concise timeline as to the order in which the

events she discussed occurred.

       {¶12} Reid explained that at some point earlier in the evening, Hill had
grabbed her around her neck. Reid demonstrated by making a strangling motion


                                              4
                       OHIO FIRST DISTRICT COURT OF APPEALS



around her neck. She told Hill not to put his hands on her. She also told him that he

had put his hands on her for the last time. She denied being upset with Hill for

flirting with another woman, and she told Detective Gregory that Hill “just [went] off

again” when she refused to give Tony money to purchase crack cocaine. Reid asked

Hill to leave her apartment after he called her a “bottom bitch,” but he refused. He

repeatedly stated, “Bitch, I ain’t going nowhere,” and, while seated in a chair, kicked

Reid as she walked past him.

       {¶13} Reid said that when she called 911 for assistance, Hill told her, “Go
ahead. I’m telling them that you scratched me.” Reid admitted that she probably

had scratched Hill when he grabbed her neck, but it was because she “used to get

abused back in the days.” Some time after Reid called 911, a neighbor who heard the

confrontation encouraged Reid to come outside. When Reid finished speaking with

the neighbor, Hill was “still going on” and he grabbed her “like that.” Reid mimicked

someone strangling her neck as she said this.

       {¶14} After Hill repeatedly said to her, “Bitch, what you gonna do? What you
gonna do?,” Hill kicked her and Reid stated that “I did went in there and I did grab

the knife.” She then clarified that she first grabbed a big knife, which Hill’s brother

took away. When this happened, Hill told her, “Bitch, you ain’t going to cut me.”

Reid and Hill continued to argue by insulting each other’s mothers, and Hill kicked

her, which Reid said was “the worst thing you can do, put your feet on me. I hate for

somebody to put [their] feet on me.” Reid pushed him back, and stated, “That’s

when he got back up and leaped at me for real.” Reid told Hill that he was not going

to keep offending her, and she ran back into the kitchen and grabbed a smaller knife.

She says she got the knife after he kicked her. She explained that she was only trying

to scare Hill, but that she must have hit him with the knife. She then panicked and

ran out of the door.




                                                5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} During closing argument, the state argued to the jury that Reid could
have left the apartment and waited for the police outside after she called 911.

Defense counsel addressed this comment in her closing remarks, telling the jury that

Reid had no duty to leave the apartment. Defense counsel stated:

      And you’re going to get an instruction on this that says if you’re faced

      with deadly force or you’re in fear of harm, you have a duty to retreat.

      But guess what? The law also then expounds it and says, but if you’re

      in your own home, you don’t have a duty to retreat anymore.

                                       *   *   *

      It is not Melvin’s house. Melvin can’t claim that he lived there and,

      therefore, she doesn’t have the self-defense of no duty to retreat. It’s

      her house. She has the right.

                                       *   *   *

      So the instruction to you is she had reasonable grounds to believe and

      an honest belief, even if mistaken, that she was in imminent or

      immediate danger of death or great bodily harm, and that her only

      means of retreat or to escape such danger was by the use of deadly

      force, and that she had not violated any duty to retreat to avoid the

      danger. That she had not violated the duty to retreat. Guess what?

      You’re going to get your next one. Who’s got a duty to retreat? Not

      her. You don’t have a duty to retreat in your own home. When you’re

      in your own home, you’re allowed to protect yourself.

                                       *   *   *

      It’s her—we call it the “castle doctrine,” is the legal term for it, because

      it’s your castle and people can’t come into your castle and harm you.




                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} The jury returned a verdict acquitting Reid of murder pursuant to R.C.
2903.02(A), but finding her guilty of murder pursuant to R.C. 2903.02(B). Reid

received a sentence of 15 years’ to life imprisonment.


                                Ineffective Assistance


       {¶17} We consider Reid’s assignments of error out of order, as her second
assignment of error is dispositive of this appeal.   In her second assignment of error,

Reid argues that she received ineffective assistance from her trial counsel.

       {¶18} Counsel will not be considered ineffective unless her or his
performance was deficient and caused actual prejudice to the defendant. Strickland

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

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceeding

would have been different but for the deficient performance.              Strickland at

694; Bradley at 142. A reasonable probability is one that is sufficient to undermine

confidence in the outcome. Id. A reviewing court must indulge a presumption that

counsel’s behavior fell within the acceptable range of reasonable professional

assistance. Strickland at 689; Bradley at 142.

       {¶19} Reid specifically contends that her counsel was ineffective for failing to
request a jury instruction under R.C. 2901.09, also known as the castle doctrine. As

set forth in R.C. 2901.09(B), the castle doctrine provides that “a person who lawfully

is in that person’s residence has no duty to retreat before using force in self-defense,

defense of another, or defense of that person’s residence.”




                                               7
                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶20}    Self-defense is an affirmative defense that the defendant must prove

by a preponderance of the evidence. State v. Smith, 1st Dist. Hamilton No. C-

170028, 2018-Ohio-2504, ¶ 57-58. A defendant is entitled to rely on the affirmative

defense of self-defense when she or he establishes “(1) that he was not at fault in

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

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

of force, and (3) that he did not violate any duty to retreat or avoid the danger.” Id.

at ¶ 57.    The castle doctrine concerns the third element of self-defense, as it

recognizes an exception to the duty-to-retreat requirement when a defendant is in

her own home. State v. Edwards, 1st Dist. Hamilton No. C-110773, 2013-Ohio-239,¶

6.

        {¶21} Ohio law also separately provides for a presumption of self-defense
when someone uses deadly force against a person that has unlawfully and without

privilege entered the residence occupied by the person using the defensive force.

Former R.C. 2901.05(B)(1);1 State v. Hilliard, 1st Dist. Hamilton No. C-160263,

2017-Ohio-2952, ¶ 4. But that presumption does not apply when the “person against

whom the defensive force is used has a right to be in, or is a lawful resident of, the

residence.” Former R.C. 2901.05(B)(2)(a); Hilliard at ¶ 4. The presumption of self-

defense may be rebutted by the state. Former R.C. 2901.05(B)(3). To rebut the

presumption, the state must establish by a preponderance of the evidence that “the

defendant’s conduct in the affray did not meet the elements of self-defense.” State v.

Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 48, quoting State v. Nye,

3d Dist. Seneca No. 13-13-05, 2013-Ohio-3783, ¶ 30. Here, the third element of self-




1 R.C. 2901.05 was revised while this action was pending. We apply the version of the statute in
effect at the time that the offense was committed. State v. Dukes, 4th Dist. Scioto Nos. 16CA3745
and 16CA3760, 2017-Ohio-7204, ¶ 60, fn. 3.


                                                   8
                     OHIO FIRST DISTRICT COURT OF APPEALS



defense, that Reid had not violated a duty to retreat, could not have been rebutted

because Reid had no duty to retreat.

       {¶22} “[A] criminal defendant has a right to expect that the trial court will
give complete jury instructions on all issues raised by the evidence.”          State v.

Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d 1279 (1990). Here, the evidence

established that the confrontation between Reid and Hill took place inside Reid’s

apartment. Consequently, Reid had no duty to retreat. See id. at 250. The evidence

in this case warranted a castle-doctrine instruction.

       {¶23} The trial court properly instructed the jury on the elements of self-
defense and that Reid had the burden to prove those elements. It then instructed the

jury regarding Reid’s duty to retreat by providing the following instruction:

       DUTY TO RETREAT. The defendant had a duty to retreat if she was at

       fault in creating the situation giving rise to the stabbing of Melvin

       Douglas Hill or did not have reasonable grounds to believe and an

       honest belief that she was in imminent or immediate danger of death

       or great bodily harm or that she had a reasonable means of escape

       from that danger other than by the use of deadly force.

       The defendant no longer had a duty to retreat if: (1) she retreated,

       escaped or withdrew from the situation or reasonably indicated her

       intention to retreat or escape from the situation and no longer

       participate in it and (2) she then had reasonable grounds to believe

       and an honest belief that she was in imminent or immediate danger of

       death or great bodily harm; and (3) the only reasonable means of

       escape from that danger was by the use of deadly force, even though

       she was mistaken as to the existence of that danger.




                                              9
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} The trial court additionally instructed the jury on the rebuttable
presumption of self-defense as set forth in former R.C. 2901.05. The jury was

instructed that:

       DEFENSE OF RESIDENCE. A person is presumed to have acted in

       self defense or defense of another when using defensive force that is

       intended or likely to cause death or great bodily harm to another if the

       person against whom the defensive force is used is in the process of

       unlawfully and without privilege to do so entering, or has unlawfully

       and without privilege to do so entered, the residence occupied by the

       person using the defensive force.

       The presumption set forth above does not apply if the person against

       whom the defensive force is used has a right to be in, or is a lawful

       resident of, the residence.

       The presumption set forth above also does not apply if the person who

       uses the defensive force uses it while in a residence and the person is

       unlawfully, and without privilege to be, in that residence.

       This presumption is a rebuttable presumption and may be rebutted by

       the state by a preponderance of the evidence.

       {¶25} The trial court’s instructions failed to inform the jury that a person
lawfully in their own home has no duty to retreat before using force in self-defense.

       {¶26} Here, if the jury had found that Reid proved the first two elements of
self-defense by a preponderance of the evidence (either because of the rebuttable

presumption or otherwise if the jury found the presumption inapplicable), it would

then have had to consider whether Reid violated any duty to retreat before using

force in self-defense. The jury instructions provided by the trial court identified a

single instance in which Reid would not have had a duty to retreat: where, after

retreating or withdrawing from the situation, Reid had reasonable grounds to believe


                                              10
                      OHIO FIRST DISTRICT COURT OF APPEALS



she was in imminent danger of death or great bodily harm and the only means of

escape was by the use of deadly force. See State v. Dale, 2d Dist. Montgomery No.

2012 CA 20, 2013-Ohio-2229, ¶ 20. But because the confrontation took place in her

home, Reid actually had no duty to retreat, regardless of whether the circumstances

just described had occurred. The omission of an instruction on the castle doctrine

failed to inform the jury of this.

       {¶27} The instruction on the rebuttable presumption of self-defense, set
forth in former R.C. 2901.05, did not serve as a replacement for an instruction on the

castle doctrine. “The difference between the Castle Doctrine and the rebuttable

presumption of self-defense lies in the legal status of the victim.” State v. Lewis,

2012-Ohio-3684, 976 N.E.2d 258, ¶ 18 (8th Dist.).               Under the rebuttable

presumption of self-defense, if the jury had found that Hill was unlawfully and

without privilege in Reid’s apartment, then Reid would have been entitled to a

presumption that she acted in self-defense.         The jury would then have had to

determine whether the state presented sufficient evidence to rebut that presumption

by a preponderance of the evidence. However, the duty to retreat element could not

be rebutted. But if the jury had found that Hill was lawfully in Reid’s apartment,

although not entitled to a presumption that she acted in self-defense, Reid still had

the opportunity to prove self-defense. As to the third element, in the absence of a

castle-doctrine instruction, the jury would not understand that Reid had no duty to

retreat before using force in self-defense in her own home. See Lewis at ¶ 19.

       {¶28} We therefore find that counsel was deficient for failing to request that
the trial court provide an instruction on the castle doctrine. This is particularly true

when considering counsel’s repeated statements to the jury during closing argument

that Reid had no duty to retreat and that the trial court would instruct it accordingly.

       {¶29} We now consider whether Reid was prejudiced by counsel’s deficient
performance.     While Reid did not testify, the jury was presented, through the


                                               11
                     OHIO FIRST DISTRICT COURT OF APPEALS



introduction of Reid’s 911 call and her interview with Detective Gregory, with

evidence on the remaining elements of self-defense, specifically whether Reid was at

fault in creating the situation and whether she had a bona fide belief that she was in

danger of imminent death or great bodily harm.

       {¶30} In the 911 call, Reid told the operator that Hill had put his hands on
her and assaulted her. And Reid stated in her interview with Detective Gregory that

Hill had repeatedly verbally attacked her and had kicked her after he “went off” when

she refused to give his brother money to purchase crack cocaine. She stated that Hill

had grabbed her neck, and she mimicked someone strangling her neck. Reid told

Hill not to put his hands on her and that he had done so for the last time. She

described in detail the back-and-forth confrontation between herself and Hill that

led to the stabbing. She explained that after Hill had kicked her and then leaped at

her when she pushed him back, she got a knife.

       {¶31} The confrontation took place in Reid’s small apartment, where she was
surrounded by Hill and three of his family members. The record established that

Hill was a large man, weighing approximately 220 pounds. While Reid did not

specifically say she believed she was in danger of imminent death or great bodily

harm, based on Reid’s description of the ongoing confrontation between herself and

Hill, we find that the jury could reasonably have found that Reid had such a

reasonable belief and that Reid was not at fault in creating the situation. The jury

would then have had to determine whether Reid violated any duty to retreat, an issue

on which it had not been properly instructed.

       {¶32} On this record, there is a reasonable probability that the outcome of
the proceedings would have been different had counsel requested a castle-doctrine

instruction. This is particularly true where counsel repeatedly told the jury during

closing argument that Reid had no duty to retreat and that it would receive a castle-

doctrine instruction explaining that a defendant has no duty to retreat when faced


                                             12
                      OHIO FIRST DISTRICT COURT OF APPEALS



with deadly force in the defendant’s own home. The problem was compounded by

the prosecutor’s incorrect statement of the duty to retreat.     During closing, the

prosecution reiterated that Reid had a duty to retreat and referred the jury to the

court’s incorrect instruction on this issue. In the absence of the castle-doctrine

instruction, which counsel had stated would be given, the jury reasonably would have

believed that Reid in fact did have a duty to retreat.

       {¶33} Consequently, we find that Reid was prejudiced by counsel’s deficient
performance.

       {¶34} Reid’s second assignment of error is sustained. Our resolution of this
assignment of error renders moot Reid’s remaining assignments of error.


                                      Conclusion


       {¶35} The trial court’s judgment is reversed, and this cause is remanded for
proceedings consistent with the law and this opinion.

                                              Judgment reversed and cause remanded.

CROUSE, J., concurs.
WINKLER, J., dissents.
WINKLER, J., dissenting.

       {¶36} I respectfully dissent.      While I agree that counsel should have

requested a jury instruction on the castle doctrine, I disagree with the majority’s

conclusion that Reid was prejudiced by trial counsel’s failure to request said

instruction. When considering the prejudice prong of an ineffective-assistance-of-

counsel claim, the conviction should be reversed only if there is a reasonable

probability that, but for counsel’s errors, the outcome of the trial would have been

different. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373.          A “reasonable probability” is a probability

“sufficient to undermine confidence in the outcome.”       Strickland at 694.   “The


                                               13
                      OHIO FIRST DISTRICT COURT OF APPEALS



assessment of prejudice should proceed on the assumption that the decision maker is

reasonably, conscientiously, and impartially applying the standards that govern the

decision.” Id. at 695.

       {¶37} Upon my review of the record, I have confidence in the jury’s finding of
guilt on the charge of felony murder. The state’s evidence demonstrated that Reid

acted out of anger toward Hill and not out of fear that Hill was going to cause her

death or inflict great bodily harm. Because there is no reasonable probability of a

result more favorable to Reid, Reid was not prejudiced by counsel’s error.

       {¶38} The elements of self-defense are cumulative. State v. Jackson, 22 Ohio
St.3d 281, 284, 490 N.E.2d 893 (1986). If the jury found that Reid was at fault or she

lacked reasonable grounds to believe and an honest belief that she was in imminent

or immediate danger of death or great bodily harm, then she could not rely on self-

defense, and the jury would not reach the duty-to-retreat issue that was implicated

by counsel’s error.

       {¶39} Assuming that Reid was entitled to the presumption, afforded under
R.C. 2901.05, that she had acted in self-defense, the state rebutted the presumption

by producing, in my opinion, conclusive evidence that Reid did not have an honest

and reasonable belief that she was in imminent danger of death or great bodily harm.

Therefore, given the cumulative nature of the elements of self-defense, the jurors

simply would have never considered the duty to retreat, or in the case of Reid, that

she had no duty to retreat. Because Reid’s acts were not reasonable under the

circumstance existing at the time of the stabbing, the duty to retreat is immaterial to

the jurors’ analysis of Reid’s claim of self-defense.

       {¶40} In the court’s instruction on the elements of self-defense, it provided
the jurors with the test for whether Reid’s actions met the test for reasonableness:

       TEST FOR REASONABLENESS




                                                14
                      OHIO FIRST DISTRICT COURT OF APPEALS



       Words alone do not justify the use of deadly force. Resort to such force

       is not justified by abusive language, verbal threats, or other words, no

       matter how provocative.

       In deciding whether Yolanda Reid had reasonable grounds to believe

       and an honest belief that she was in imminent or immediate danger of

       death or great bodily harm, you must put yourself in the position of the

       defendant, with her characteristics, her knowledge or lack of

       knowledge, under the circumstances and conditions that surrounded

       him [sic] at the time. You must consider the conduct of Melvin

       Douglas Hill and decide whether his acts and words caused Yolanda

       Reid reasonably and honestly to believe that she was about to be killed

       or receive great bodily harm.

       If she used more force than reasonably necessary and the force used is

       greatly disproportionate to the apparent danger, then the defense of

       self defense is not available.

       {¶41} Admittedly, Terry’s, Tony’s, and Jackie’s testimony was not overly
persuasive. Nevertheless, it provided a common thread woven through the night’s

events leading to Hill’s stabbing and ultimate death. The credibility of the state’s

witnesses is the province of the jurors. The jurors were free to believe some, all or

none of those witnesses’ testimony. Moreover, the state presented additional

evidence corroborating their testimony that Reid had not been in any real danger

when she stabbed Hill, by relying upon Reid’s own words in her 911 call and her

interview with Detective Gregory.

       {¶42} During the 911 call, Reid told the operator she had been “assaulted”
and “hit” by Hill and requested assistance from the police in removing Hill from her

apartment. But Reid could not identify any injury and declined the offer of an

ambulance. Hill can be heard in the background during the call inviting the police to


                                             15
                      OHIO FIRST DISTRICT COURT OF APPEALS



come because Reid had been assaulting him. Both Reid and Hill sound agitated

during the call, but their tones lacked urgency. Reid repeatedly stated that “he had

put his hands on her” and she “was not going for that,” and she “just wanted” Hill

“out of her house.” Before Reid’s call ended, 14 minutes before the stabbing, the

operator informed her that officers would respond to her location.

       {¶43} Reid’s interview with the police occurred about five hours after the
stabbing. Although the police repeatedly gave her the opportunity to say that she

had feared Hill was going to seriously or fatally harm her, she did not. Instead, she

described a scene in her apartment on the evening of the stabbing, apparently not

unusual in their 20-year relationship, where they were argumentative and physical,

but not characterized by a serious threat to her life. Reid, who had to awaken early

the next morning for work, wanted Hill to leave her apartment. During her rambling

recollection of the evening, she conveyed to the police that Hill had repeatedly “put

his hands” on her and had insulted her. She made a gesture several times indicating

that Hill had put one hand on her neck or her face, but the gesture did not mimic a

two-handed chokehold as in a strangling, and she never said that Hill had attempted

to choke or strangle her. She did say that the touching had put pressure on an aching

tooth, and that Hill had apologized for hurting her in that way.

       {¶44} When recalling the events specifically leading up to the stabbing, Reid
said that she had first grabbed a large knife to address Hill’s insults, physical contact,

including kicking her from a seated position, and his refusal to leave, but that Tony

had taken that large knife away from her. When Hill taunted and continued to goad

and disrespect her, she left Hill, ran to the kitchen to grab another knife, and thrust it

toward him to “scare” him. The fact that she had actually cut him had surprised her.

Reid’s statements, when considered in the context of Reid and Hill’s relationship,

and the photographs taken of Reid after her interview showing no sign of physical




                                               16
                      OHIO FIRST DISTRICT COURT OF APPEALS



injury, do not support an inference that Reid had both an actual and reasonable

belief that she was in imminent danger of death or great bodily harm.

       {¶45} Importantly, Reid left Hill to retrieve the second knife, and when she
returned, she did not use that knife in response to any physical force or threat from

Hill. The castle doctrine does not justify Reid’s use of deadly force under these

circumstances, even if one assumes Reid had no duty to retreat from her apartment.

       {¶46} Because of the strength of the state’s evidence, there is no reasonable
probability that Reid would have obtained a more favorable result absent counsel’s

deficient performance, as her conviction was not affected by the lack of proper

instruction on the castle doctrine. Further, I have reviewed the remainder of Reid’s

arguments and conclude they are meritless. Consequently, I would overrule Reid’s

assignments of error and affirm the trial court’s judgment.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                                17
