[Cite as State v. Turner, 2011-Ohio-5417.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24322

vs.                                               :    T.C. CASE NO. 10CR1787

DANIEL MICHAEL TURNER                              :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                  Rendered on the 21st day of October, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst.
Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH
 45422
     Attorneys for Plaintiff-Appellee

Peter R. Certo, Jr., Atty. Reg. No. 0018880, 1700 One Dayton Centre,
One South Main Street, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Daniel Turner, appeals from his conviction

and sentence for felonious assault, R.C. 2903.11(A), for knowingly

causing serious physical harm to another.

        {¶ 2} On June 3, 2010, Jack Bozarth confronted several children

 who were gathered in a yard near the intersection of Kings Highway
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and Arlene Avenue in Dayton about a fight Bozarth’s eight-year

old grandson had just gotten into with those other children.

Several of the children were Yolanda Brown’s children.          Defendant,

who is Brown’s adult son, was also present.             While Bozarth was

yelling at the children, and they were yelling back at him, Brown

came out of her house to investigate the commotion.             Bozarth and

Brown almost immediately began yelling at each other.              At some

point during the argument, Bozarth struck Brown, causing her to

stumble backwards.       Defendant then immediately hit Bozarth in the

left side of his face, causing multiple fractures, including

orbital fractures that caused blood to pool behind Bozarth’s left

eye.    A surgical procedure at Miami Valley Hospital was required

to allow the blood to drain from behind Bozarth’s eye.             Without

that procedure, Bozarth may have lost his sight.

       {¶ 3} Defendant was indicted on one count of felonious assault

in violation of R.C. 2903.11(A)(1).             Following a jury trial,

Defendant was found guilty as charged.          The trial court sentenced

Defendant to four years in prison.

       {¶ 4} Defendant timely appealed to this court.

FIRST ASSIGNMENT OF ERROR

       {¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

ISSUE A DEFENSE OF ANOTHER JURY INSTRUCTION.”

       {¶ 6} Defendant    argues   that   the   trial   court   abused   its
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discretion by refusing to give his requested jury instruction on

the affirmative defense of defense of another.

     {¶ 7} In   State   v.   Kleekamp,   Montgomery   App.   No.   23533,

2010-Ohio-1906, this court stated:



     {¶ 8} “{¶ 35} ‘A criminal defendant has the right to expect

that the trial court will give complete jury instructions on all

issues raised by the evidence.’ State v. Williford (1990), 49 Ohio

St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App.

No. 22301, 2008-Ohio-2892, ¶ 9. As a corollary, a court should

not give an instruction unless it is specifically applicable to

the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 837

N.E.2d 823, 2005-Ohio-4736, ¶ 19. The decision to give a requested

jury instruction is a matter left to the sound discretion of the

trial court, and the court's decision will not be disturbed on

appeal absent an abuse of discretion. State v. Davis, Montgomery

App. No. 21904, 2007-Ohio-6680, ¶ 14.”

     {¶ 9} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or
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arbitrary.

     {¶ 10} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.       It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”   AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

     {¶ 11} Ohio has long recognized an affirmative defense of

defense of another where one (1) reasonably and in good faith

believes that his family member is in imminent danger of death

or serious bodily harm and (2) only uses reasonably necessary force

to defend his family member such as he would be entitled to use

in self-defense.   State v. Williford (1990), 49 Ohio St.3d 247,

250, 551 N.E.2d 1279.

     {¶ 12} In Kleekamp, supra, we further stated:

     {¶ 13} “{¶ 51} ‘The affirmative defense of defense of another

is a variation of self-defense. State v. Moss, Franklin App. No.

05AP-610, 2006-Ohio-1647. Under certain circumstances, a person

may be justified in using force to defend another person against

an assault. However, the actor then stands in the shoes of the

person he aids, and if the person aided is the one at fault in

creating the affray, the actor is not justified in his use of force.
                                                                   5

Id. One who acts in defense of another must meet the criteria for

self-defense. Id.’ State v. Wilson, Montgomery App. No. 22581,

2009-Ohio-525, ¶ 38.

     {¶ 14} “{¶ 52} Self-defense is an affirmative defense which

the accused has the burden to prove by a preponderance of the

evidence. R.C. 2901.05(A); State v. Jackson (1986), 22 Ohio St.3d

281, 490 N.E.2d 893. ‘In order to establish self-defense, a

defendant must prove: (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. Davis, Montgomery App. No. 21904, 2007-Ohio-6680, ¶ 14,

citing State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755.”

     {¶ 15} An affirmative defense, such as self-defense or defense

of another, is in the nature of a confession and avoidance, where

the accused admits that he engaged in the conduct alleged but claims

that he was legally justified in doing so.   State v. Rhodes (1992),

63 Ohio St.3d 613, 625.   Such an instruction is not appropriate

where the defendant denies engaging in the conduct alleged upon

which the criminal charge is based.    State v. McGhee, Montgomery

App. No. 23226, 2010-Ohio-977, at ¶54.
                                                                                   6

       {¶ 16} In    order    to   determine        whether    a   defendant     has

successfully raised an affirmative defense under R.C. 2901.05,

the court is to inquire whether the defendant has presented

sufficient “evidence, which if believed would raise a question

in the minds of reasonable men concerning the existence of such

issue.”     State v. Robbins (1979), 58 Ohio St.2d 74, 80, 388 N.E.2d

755, quoting State v. Melchoir (1978), 56 Ohio St.2d 15, 381 N.E,2d

195, paragraph one of the syllabus.

       {¶ 17} Defendant      claims    that   he    was   entitled    to    a   jury

instruction on the defense of another based upon his testimony

at trial that        he hit Bozarth immediately after Bozarth hit his

mother, and that he punched Bozarth in order to get Bozarth away

from      his      mother.        In     other       words,       Defendant      was

protecting/defending his mother who had the right to use force

to defend herself after Bozarth struck her. Instead, Defendant

“stood in the shoes of his mother” and used force in her defense.

 During his testimony, Defendant claimed that he hit Bozarth

“between his beard and chin,” and he denied hitting Bozarth with

enough force to cause his injuries.

       {¶ 18} The trial court refused to instruct the jury on defense

of another because the court concluded that Defendant denied

engaging in the specific conduct, hitting Bozarth in the left eye,

that resulted in serious physical harm to Bozarth.                         Instead,
                                                                       7

Defendant   admitted   only   to   hitting   Bozarth    on   the   chin.

Accordingly, the trial court found that Defendant was not admitting

that he engaged in the specific conduct charged, which is the

necessary foundation for an affirmative defense.       State v. McGhee.

     {¶ 19} Because Defendant denied hitting Bozarth in or near his

left eye, and further denied using sufficient force to cause the

serious physical harm to Bozarth’s left eye, the evidence Defendant

presented constituted a denial of the particular criminal conduct

alleged, not a confession and avoidance.     We agree with the trial

court that the evidence on which Defendant’s claim was predicated

is insufficient to raise an issue concerning defense of another

and justify a jury instruction on that affirmative defense.

Accordingly, the trial court did not abuse its discretion in

refusing to give that instruction.

     {¶ 20} Defendant’s first assignment of error is overruled.



SECOND ASSIGNMENT OF ERROR

     {¶ 21} “THE TRIAL COURT FAILED TO CONSIDER ALL MITIGATING

FACTORS IN SENTENCING AND IMPOSED AN EXCESSIVE SENTENCE.”

     {¶ 22} Defendant argues that the trial court erred by failing

to give proper consideration to the mitigating factors that apply,

resulting in a sentence that is excessive.

     {¶ 23} In State v. Jeffrey Barker, Montgomery App. No. 22779,
                                                                 8

2009-Ohio-3511, at ¶36-37, we wrote:

     {¶ 24} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing

maximum, consecutive, or more than minimum sentences.    State v.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at

paragraph 7 of the syllabus.      Nevertheless, in exercising its

discretion the trial court must consider the statutory policies

that apply to every felony offense, including those set out in

R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846

11 N.E.2d 1, 2006-Ohio-855, at ¶37.

     {¶ 25} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law.   State v. Kalish, 120 Ohio St.3d 23,

896 N.E.2d 124, 2008-Ohio-4912.    If the sentence is not clearly

and convincingly contrary to law, the trial court's decision in

imposing the term of imprisonment must be reviewed under an abuse

of discretion standard. Id.”

     {¶ 26} At sentencing, the trial court indicated that it had

reviewed the presentence investigation report and the parties’

sentencing memorandums.    The court heard oral statements by
                                                                                 9

Defendant’s counsel.          The court also informed Defendant about post

release control requirements.                The court did not, however,

specifically state that it had considered the seriousness and

recidivism factors in R.C. 2929.12.               Even if there is no specific

mention in the record that the trial court considered the purposes

and   principles    of    felony    sentencing,       R.C.   2929.11,    or   the

seriousness and recidivism factors, R.C. 2929.12, it is presumed

that the trial court gave proper consideration to those statutes.

 State v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43;

Kalish, at fn. 4.       We additionally note that Defendant’s four year

sentence is within the authorized range of available punishments

for   a   felony   of     the    second   degree.        R.C.   2929.14(A)(2).

Defendant’s sentence is not contrary to law.

      {¶ 27} Defendant claims that the trial court failed to properly

consider several mitigating factors that apply, and as a result,

the court imposed an excessive sentence.                Defendant points out

that the victim induced or facilitated the offense by yelling at

the children and striking Defendant’s mother, R.C. 2929.12(C)(1),

and that in committing the offense Defendant acted under strong

provocation, R.C. 2929.12(C)(2).              Furthermore, Defendant is a

first time offender who has not previously been convicted of a

criminal   offense       or    adjudicated    a    delinquent   child.        R.C.

2929.12(E)(1)-(3).            The offense was committed under factual
                                                                         10

circumstances    not    likely   to   recur,   R.C.   2929.12(E)(4),   and

Defendant     several    times   expressed      genuine   remorse,     R.C.

2929.12(E)(5).

     {¶ 28} While all of that may be true, this record nevertheless

supports the trial court’s sentence.           First, we note that there

is a presumption in favor of a prison term for a second degree

felony.     R.C. 2929.13(D)(1).       Furthermore, the four year prison

term the trial court imposed is a low to mid-range sentence for

a second degree felony.      R.C. 2929.14(A)(2).       Additionally, the

trial court indicated that it would be favorably disposed to

granting judicial release after just one year if Defendant behaves

while in prison, because due to the bad environment Defendant was

raised in the court wasn’t sure Defendant really had a chance.

     {¶ 29} Finally, the trial judge explained her reasons for

imposing a prison term, which includes the fact this was an offense

of violence that resulted in serious physical harm to the victim.

 Throughout Defendant’s presentence investigation interview, he

minimized his involvement in the offense, denying that he hit the

victim in the eye and caused his serious eye injuries.         The trial

court did not believe that.            The trial court noted that the

community cannot tolerate causing serious physical harm to another

person.     The victim in this case, an elderly man, had his left

eye socket shattered.     The court found that community control would
                                                                11

demean the seriousness of this offense, effectively concluding

that the presumption in favor of prison had not been rebutted.

     {¶ 30} The overriding purposes of felony sentencing are to

protect the public from future crime by the offender and to punish

the offender.   R.C. 2929.11(A).   The trial court has discretion

to determine the most effective way to comply with the purposes

and principles of sentencing.   R.C. 2929.12(A).   We see no abuse

of discretion on the part of the trial court in imposing a four

year sentence in this case.

     {¶ 31} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.




DONOVAN, J., And HALL, J., concur.




Copies mailed to:

R. Lynn Nothstine, Esq.
Peter R. Certo, Jr., Esq.
Hon. Barbara P. Gorman
