[Cite as State v. Hadley, 2013-Ohio-1942.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-11-30

        v.

DANIEL S. HADLEY,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 10 CR 0292

                                      Judgment Affirmed

                             Date of Decision:   May 13, 2013




APPEARANCES:

        Sarah G. LoPresti for Appellant

        Brent W. Yager and David J. Stamolis for Appellee
Case No. 9-11-30


SHAW, J.

       {¶1} Defendant-appellant, Daniel S. Hadley (“Hadley”), appeals the June

22, 2011 judgment of the Marion County Court of Common Pleas journalizing his

conviction by a jury for one count of felonious assault with a deadly weapon and

sentencing him to four years in prison.

       {¶2} On June 8, 2010, at approximately 6:00 p.m., Donald Ayars

(“Ayars”), an employee of the Federal Census Bureau approached Hadley’s home

in Marion, Ohio, to gather information for the 2010 Federal Census. Hadley had

previously been nonresponsive to the Census questionnaire sent to his home.

Ayars was sent to follow-up with Hadley and to attempt to gather the necessary

information for the Census.

       {¶3} Ayars walked onto the porch and knocked on the front door of

Hadley’s residence.     Hadley answered the door and was initially friendly.

However, after Ayars identified himself as a Census worker the situation turned

hostile. Both Ayars and Hadley have very divergent accounts of the events that

took place after this initial introduction as evidenced by the 9-1-1 calls placed by

Hadley and by Ayars after the incident.

       {¶4} The following is the transcript from the 9-1-1 call Hadley placed to

the Marion City Police immediately after the altercation with Ayars.

       Dispatcher: Marion City Police and Fire.


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      Hadley: Yeah, I got some mother fucker who just stepped up to
      my house and I beat him with a fuckin’ bat and he ran out. And
      he’s standing out here.

      Dispatcher: Where’s out here?

      Hadley: Eh, 387 East Farming. Yeah. You guys need to send a
      car out here and stuff ‘cause if he comes up in here again, I’m
      beating him bad.

      Dispatcher: What’s your name?

      Hadley: Dan Hadley.

      Dispatcher: Dan, what?

      Hadley: Daniel Hadley. H—387 East Farming.

      Dispatcher: Hadley, right?

      Hadley: Yeah. Yeah, this mother fucker he’s sitting out here—
      he’s just sitting out here.

      Dispatcher: What’s your phone number, Dan?

      Hadley: uh, 740-802-* * * *.

      Dispatcher: Well, who is this dude?

      Hadley: He said something about some fuckin’ census thing. I
      told him myself, I (inaudible), get off the porch. And, uh, I came
      back in the door and he came right up on me in a couple of
      inches and stuff and I said get the fuck away from here. He
      stepped up into the door and stuff.

      Dispatcher: White guy, black guy, what?

      Hadley: White guy. He’s about six foot, six two.

      Dispatcher: What’s he wearing?

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      Hadley: He’s sitting out here right now.

      Dispatcher: Right, but what’s he wearing?

      Hadley: Blue cut-off jeans and a blue tee-shirt.

      Dispatcher: You said he came into your house and then you hit
      him with a bat?

      Hadley: Yeah. I opened the door, came inside the house and he
      stepped-in and stuff. I ended up (inaudible) him up, I hit him
      with everything I had. I don’t know who the fuck this guy is and
      he ain’t gonna come up in here.

      Dispatcher: Alright. He’s outside on the porch or on the street
      or something?

      Hadley: He’s across the street now and stuff. Now he’s on the
      phone with somebody I don’t know who, but you guys need to
      send a squad car out here now.

      Dispatcher: So, you’re going to stay—make sure you put the bat
      someplace when the officers get there ‘cause they might not be
      too happy to you see with it.

      Hadley: Uh huh. Oh, I’m inside the house, just sitting here
      watchin’ T.V. mindin’ my business. Alright, we’ll I’m gonna be
      sitting here waitin’.

      Dispatcher: Okay, I’ll send somebody over.

      {¶5} The following is the transcript from the 9-1-1 call placed by Ayars

immediately after the altercation with Hadley.

      Dispatcher: Marion City Police and Fire.

      Ayars: Yeah, I was just assaulted with a baseball bat at 387 East
      Farming Street.

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      Dispatcher: Who is?

      Ayars: I was just assault with a baseball bat by the gentlemen
      that was at 387 East Farming Street. He struck me with a
      baseball bat.

      Dispatcher: Are you still there?

      Ayars: Yeah. I’m still here. I’m across the street right now.

      Dispatcher: What’s your name?

      Ayars: Donald Ayars, A-Y-A-R-S.

      Dispatcher: Alright, hold on just a second, Donald.

      Ayars: Thank you.

      Dispatcher: Sir?

      Ayars: Yes, ma’am.

      Dispatcher: Do you know the guy that lives there?

      Ayars: No, I work for the Department of Census and I came
      here to get a Census and he was verbally abusive and pushed me
      and he said something, he said step up here and I turned around
      and said “what” and he brought a baseball bat out from his
      front step from behind his door and he struck me with it. Now,
      he’s on the other line right now talking to police. I was assaulted
      with a baseball bat.

      Dispatcher: (to another dispatcher) Uh, what’s he on?

      Ayars: He’s on, I don’t know he’s callin’—

      Dispatcher: Nah nah nah no—not you. Alright. We’ll have an
      officer down, okay? What are you wearing?


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          Ayars: I’ve got a blue tee-shirt on with blue shorts. I got a
          black bag on that says “Census.”

          Dispatcher: Ok. We’ll have an officer down. Thanks.

          Ayars: Bye.

          {¶6} Shortly after the 9-1-1 calls were made, the police arrived on the

scene and interviewed both Hadley and Ayars.         The police also spoke to a

neighbor across the street and Hadley’s girlfriend, who was inside the house at the

time of the incident.

          {¶7} On June 10, 2010, Hadley was indicted on one count of felonious

assault with a deadly weapon, in violation of R.C. 2903.11(A)(2), a felony of the

second degree.

          {¶8} On August 5, 2010, the prosecution filed a supplemental indictment

listing a second count of felonious assault with a deadly weapon, in violation of

R.C. 2903.11(A)(2), a felony of the second degree.

          {¶9} On August 9, 2010, Hadley was arraigned and entered a plea of not

guilty.

          {¶10} On August 16, 2010, the prosecution filed a bill of information

specifying a third count for attempted aggravated assault, in violation of R.C.

2923.02 and R.C. 2903.12(A)(2), a felony of the fifth degree.




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        {¶11} On August 17, 2010, Hadley entered a guilty plea to Count Three

listed in the bill of information, attempted aggravated assault, in exchange for the

prosecution dismissing the two counts of felonious assault.

        {¶12} On October 21, 2010, Hadley filed a pre-sentence motion to

withdraw his guilty plea, which was subsequently granted by the trial court. The

case proceeded to trial on Count One of the indictment, felonious assault.1

        {¶13} On May 26, 2011, Hadley filed a request for jury instructions.

Specifically, Hadley requested the trial court to instruct the jury on the affirmative

defense of self-defense and the presumption of self-defense stated in R.C.

2901.05(B)(1), commonly known as the “Castle Doctrine.”

        {¶14} The case proceeded to a jury trial on June 1, 2011. The prosecution

played the 9-1-1 calls placed by both Hadley and Ayars after the incident. The

prosecution also presented the testimony of Ayars, Heather Schilling—the

neighbor who lives across the street from Hadley, and Officers Cox and Burdick—

the two police officers who responded to the 9-1-1 calls. Hadley testified on his

own behalf and also offered the testimony of his live-in girlfriend, Donita Valdez.

The prosecution recalled Officer Cox on rebuttal and played the recorded




1
  It is not clear from the record why the prosecution chose to indict Hadley on two counts of felonious
assault. Nevertheless, it is evident that after the trial court granted Hadley’s pre-sentence motion to
withdraw his guilty plea, the prosecution only chose to take Count One to trial. Notably, neither Hadley
nor the prosecution raise any issue with regard to this decision in the record or on appeal.

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statements he took from Heather Schilling immediately after the altercation

between Hadley and Ayars.

       {¶15} Prior to instructing the jury, the trial court overruled Hadley’s

request to instruct the jury on the presumption of self-defense set forth in R.C.

2901.05(B)(1), concluding that the Castle Doctrine was inapplicable to the facts of

this case. However, the trial court did instruct the jury on the affirmative defenses

of self-defense and defense of another.

       {¶16} After hearing the evidence, the jury found Hadley guilty of felonious

assault with a deadly weapon, in violation of R.C. 2903.11(A)(2). On June 22,

2011, the trial court sentenced Hadley to serve four years in prison and imposed a

mandatory three years of postrelease control.

       {¶17} It is from this judgment that Hadley now appeals, asserting the

following assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED AND DENIED DANIEL
       HADLEY DUE PROCESS OF LAW WHEN IT FAILED TO
       PROVIDE THE JURY WITH A PROPER JURY
       INSTRUCTION IN ACCORDANCE WITH R.C. 2901.05.
       FIFTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION; SECTION 16, ARTICLE
       I OF THE OHIO CONSTITUTION.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT VIOLATED DANIEL HADLEY’S
       RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN

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       THE ABSENCE OF SUFFICIENT EVIDENCE AND
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
       IT ENTERED A JUDGMENT CONVICTING MR. HADLEY
       OF FELONIOUS ASSAULT. FIFTH AND FOURTEENTH
       AMENDMENTS      TO       THE  UNITES     STATES
       CONSTITUTION; SECTION 16, ARTICLE I OF THE OHIO
       CONSTITUTION; R.C. 2901.05.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       WHEN IT OVERRULED THE ADMISSION OF HIGHLY
       PROBATIVE, ADMISSIBLE EVIDENCE, AND THUS
       IMPEDED MR. HADLEY’S ABILITY TO DEFEND
       HIMSELF AGAINST THE CHARGES LEVIED AGAINST
       HIM, IN VIOLATION OF HIS FIFTH, SIXTH, AND
       FOURTEENTH AMENDMENT RIGHTS UNDER THE
       UNITED STATES CONSTITUTION, AND SECTIONS 10 AND
       16, ARTICLE I OF THE OHIO CONSTITUTION.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT VIOLATED DANIEL HADLEY’S
       RIGHT TO CONFRONT A WITNESS AGAINST HIM WHEN
       IT ALLOWED THE JURY TO HEAR A WITNESS’
       RECORDED STATEMENT WITHOUT ALLOWING THE
       DEFENSE AN OPPORTUNITY TO CROSS-EXAMINE.
       SIXTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND SECTION 10, ARTICLE I OF THE
       OHIO CONSTITUTION.

       {¶18} For ease of discussion, we elect to discuss Hadley’s assignments of

error out of order.

                            First Assignment of Error

       {¶19} In his first assignment of error, Hadley claims that the trial court

erred when it overruled his request to instruct the jury on the presumption of self-

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defense codified in R.C. 2905.01(B)(1), commonly referred to as Ohio’s version

of the Castle Doctrine.      The following facts, which are dispositive to our

determination of this matter on appeal, were elicited at trial.

       {¶20} Ayars testified for the prosecution and stated that he approached

Hadley’s front door and rang the doorbell. After hearing no response, Ayars

began to leave the premises when Heather Schilling, the neighbor who lives across

the street, informed him that Hadley’s doorbell did not work and that he should try

knocking. Ayars again approached Hadley’s front door this time knocking. Ayars

recalled that Hadley subsequently answered the door. Ayars testified that when he

identified himself as a Census worker, Hadley immediately became “vulgar” and

shoved him into the iron porch railing. Ayars recalled that he was trapped on the

porch against the iron railing and that he had no choice but to walk by the front

door to exit down the porch steps. Ayars recalled that the only other way he could

have exited the porch was to jump over the iron railing.

       {¶21} Ayars explained that as he tried to exit the porch down the steps,

Hadley reached around his front door, grabbed an aluminum baseball bat and

came at Ayars with the bat. Ayars testified that Hadley then swung the bat

overhead and hit Ayars on the left forearm. Ayars claimed that he used his

forearm to block Hadley from striking him in the head with the bat. Ayars then

ran down the porch steps and called the police.


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       {¶22} Ayars maintained that he did not step or look into Hadley’s home.

Ayars also maintained that he did not swing his fists towards Hadley, swear at

Hadley or have any weapons on his person. Ayars described himself as wearing

jean shorts, a blue T-shirt and carrying a black bag containing his Census forms.

Ayars testified that he went to the emergency room after the incident and had an

X-ray of his forearm taken. Ayars confirmed that he had no broken bones, but did

receive a bruise as a result of the blow.

       {¶23} On cross-examination, Ayars acknowledged he knew of at least one

other Census worker who had unsuccessfully attempted to receive information

from the Hadley residence. However, Ayars explained that he did not know this

information until he looked at his paperwork on the Hadley residence after he

approached the Hadley home. Prior to knocking on the door, Ayars testified that

at the time he only knew that the Hadley residence was considered a

“nonresponse” to the Census questionnaire.

       {¶24} Ayars admitted that he was not wearing his Census identification

badge at the time of the encounter with Hadley, and that he should have been

wearing it. Ayars also admitted that upon Hadley’s refusal to participate in the

Census, he may have told Hadley “it will only take a moment,” and that this action

was against the protocol issued by the Census Bureau, which required Census

workers to thank an unwilling resident for their time and leave. However, Ayars


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was adamant that Hadley told him to leave only after Hadley shoved Ayars into

the iron railing and that Ayars did not have the opportunity to leave prior to

Hadley striking him with the bat. On cross-examination, Ayars denied following

Hadley up into the front door. Ayars testified that he believed Hadley was getting

a gun when Hadley reached inside the home to the get the bat and that he was just

trying to get off the porch after he was shoved by Hadley. Ayars recalled that the

incident happened quickly and that he was on the porch for maybe ten seconds.

       {¶25} Heather Schilling, the neighbor who lived across the street, also

testified for the prosecution. Schilling testified that she was on her front porch

when she saw Ayars walk up to Hadley’s door. She admitted that she told Ayars

to knock louder on the door. Schilling recalled that she went back inside her home

and saw something swinging out of the corner of her eye. Schilling claimed that

she then looked outside and noticed that Ayars had been hit with a baseball bat.

Schilling testified that the entire altercation took place on Hadley’s front porch.

However, as discussed in more detail under the fourth assignment of error set forth

below, Schilling’s testimony was undermined somewhat by inconsistencies

between her testimony at trial and prior recorded statements she gave to law

enforcement at the time of the incident, which were also played at trial.

       {¶26} Officer Cox of the Marion Police Department also testified for the

prosecution. Officer Cox testified that he spoke to Hadley immediately after the


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incident with Ayars.     Officer Cox recalled Hadley’s account of what had

transpired. Specifically, Hadley relayed to Officer Cox that a Census worker came

to his door, Hadley asked the Census worker to leave and turned around to walk

back into his home.     Hadley told Officer Cox that the Census worker then

followed him into his home, Hadley felt threatened and swung the baseball bat,

hitting the Census worker. Officer Cox also testified that Hadley claimed his

girlfriend, Donita, also felt threatened by the Census worker.

       {¶27} Detective Burdick of the Marion Police Department spoke to Ayars

immediately after the incident with Hadley and testified for the prosecution.

Detective Burdick testified that Ayars appeared to be “very shaken” after the

incident and was in a “state of shock.” (Tr. Trans. p. 209). Detective Burdick

took a written statement from Ayars after the incident, in which Ayars recounted

that Hadley shoved him with both hands, told Ayars “to get the fuck off of his

porch,” told Ayars to “step the fuck up in here” and then struck Ayars with a

baseball bat. (Def. Ex. D). Detective Burdick also took pictures of Ayars’ injury

and various pictures of the scene, which were admitted at trial

       {¶28} Hadley then testified in his defense. Hadley testified that at least

two other Census workers had come to his home prior to Ayars. Hadley was not

home on the first occasion, but on the second occasion he told the Census worker

that he refused to participate in the Census and asked her to leave.      Hadley


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explained that he believed some of the questions asked in the Census were

intrusive and that the data collected has been abused by the government.

       {¶29} On the date of the altercation with Ayars, Hadley testified that he

heard the knock on the door and answered the door. Hadley explained that he

propped open the screen door and pulled shut the main door to the house behind

him so that his dogs would not escape. Hadley recalled seeing Ayars on the front

porch and seeing Schilling across the street in front of her house.

       {¶30} Hadley testified that Ayars was not wearing anything identifying

himself as a Census worker.       However, Hadley also testified that Ayars did

explain to him that he worked for the Census upon greeting him at the front door.

Hadley recalled that at first Ayars was professional during their conversation.

Hadley stated that he immediately told Ayars the same thing he had told the

previous Census worker—that he was not participating in the Census and asked

him to leave. Hadley testified that Ayars was nonresponsive to Hadley’s request,

stating that he only needed a few minutes of Hadley’s time. Hadley testified that

he “basically cut [Ayars] off” and told Ayars that he was not going to fill out the

form and again asked Ayars to leave. (Tr. Trans. p. 234). Hadley stated that

Ayars was still unresponsive to his request to leave and attempted to persuade

Hadley to complete the form. Hadley admitted that at this point he began to get

annoyed with Ayars. Hadley testified he then asked Ayars to leave a third time,


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which invoked the same response from Ayars. Hadley recalled becoming rude

and telling Ayars that he was not going to ask him again and “to get the fuck off

the porch.” (Tr. Trans. p. 235).

       {¶31} Hadley claimed he then walked up to Ayars and put his hand on

Ayars’ back and gestured for Ayars to leave. Hadley denied shoving Ayars. At

this point, Hadley maintained that Ayars “snapped” and “smacked” Hadley’s hand

away. (Tr. Trans. p. 236). Hadley claimed Ayars became very upset that Hadley

had touched him and stated that if Hadley ever touched him again he would have

him arrested for assault. Hadley stated that he was scared by Ayars’ response,

began to back up toward his front door, and then entered his home. Hadley

explained that he kept a baseball bat near his front door for protection because he

had been robbed four times in the past.

       {¶32} Hadley admitted grabbing the bat and claimed he then took a

defensive stance in the entry way of his home. Hadley testified that Ayars then

advanced toward the doorway. Hadley claimed that as soon as Ayars’ left foot

crossed the threshold, he swung the bat hitting Ayars in the left forearm. Hadley

claimed he did not swing the bat from overhead, but swung it in a lateral trajectory

like a baseball swing. Hadley recalled that the bat struck Ayars in the forearm and

came to rest in the doorjamb of the front door. Hadley testified that Ayars grabbed




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his forearm, winced in pain and exited the house after being struck with the bat.

Hadley then called the police to report the incident.

       {¶33} Hadley testified that he felt threatened by Ayars’ “irrational”

behavior and believed that striking Ayars with the bat was his only alternative.

However, Hadley admitted the thought that Ayars had a weapon never really

crossed his mind. Hadley explained that he did not have enough time to shut the

door to prevent Ayars from entering his home and he was afraid Ayars would

overpower him and try to get into the home.             Hadley described the whole

altercation with Ayars occurring in a matter of minutes. More specifically, Hadley

testified that it was just a matter of seconds, almost instant, between the time he

entered his home and when he hit Ayars with the bat.

       {¶34} Hadley’s girlfriend, Donita Valdez, also testified for the defense.

Valdez recalled hearing a knock at the door and Hadley getting up to answer it.

Valdez described Hadley as propping open the screen door and shutting the main

door behind him so their dogs did not escape. Valdez provided the following

testimony regarding Ayars’ attempt to enter the house.

       Prosecutor: You say that Donald Ayars followed [Hadley] right
       in the house?

       Valdez: Right into the house.

       Prosecutor: How far in the house did he come?

       Valdez: Just—well, he was right behind [Hadley].

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       Prosecutor: Did he ever take a step into the house?

       Valdez: Now, that’s where I didn’t see him because I turned
       away to look at [Hadley’s] dog barking, and when I turned back
       [Ayars] was flailing his arms and I seen his feet going out the
       door, so in order for him to out backwards he had to have been
       in the house. It’s just logic.

       Prosecutor: But you didn’t see him in the house?

       Valdez: No.

(Tr. Trans. p. 274). Valdez also testified that she was scared, and felt threatened

and intimidated by the entire incident.

       {¶35} At trial, based on the foregoing evidence, the trial court instructed

the jury on the affirmative defense of self-defense as follows.

       The Defendant claims to have acted in self-defense. To establish
       that he was justified in using force not likely to cause death or
       great bodily harm, the Defendant must prove by the greater
       weight of the evidence that

       A. He was not at fault in creating the situation giving rise to
       the alleged invasion of the Valdez and Hadley home by Donald
       Ayars; and

       B. He had reasonable grounds to believe, and an honest belief,
       even if mistaken, that he was in imminent danger of bodily
       harm.

       The Defendant claims to have acted in defense of Donita Valdez.
       The Defendant had no greater rights than Donita Valdez and
       was justified in using force not likely to cause death or great
       bodily harm only if




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      A. Donita Valdez was not at fault in creating the situation
      giving rise to the alleged invasion of the Valdez and Hadley
      home by Donald Ayars; and

      B. The Defendant had reasonable grounds to believe and an
      honest believe [sic], even if mistaken, that Donita Valdez was in
      imminent danger of bodily harm.

      If either of these two elements is not proved, the Defendant had a
      duty to retreat. When less than deadly force is used, the
      Defendant has no duty to retreat.

      Words alone do not justify the use of force. Resort to such force
      is not justified by abusive language, verbal threats, or other
      words, no matter how provocative.

      In deciding whether the Defendant had reasonable grounds to
      believe, and an honest belief that he was in imminent danger of
      bodily harm, you must put yourself in the position of the
      Defendant, with his characteristics, and his knowledge or lack of
      knowledge, and under the circumstances and conditions that
      surrounded him at that time. You must consider the conduct of
      Donald Ayars and decide if his acts and words caused the
      Defendant to reasonably and honestly believe that he was about
      to receive bodily harm.

      The law does not nicely measure the degree of force which may
      be used to repel an attack. However, if the Defendant used more
      force than reasonably appears to be necessary under the
      circumstances, and if the force used is so greatly
      disproportionate to his apparent danger as to show an
      unreasonable purpose to injure Donald Ayars, then the defense
      of self-defense is not available.

      If you find that the State has proved beyond a reasonable doubt
      all the essential elements of the offense charged in the
      indictment, and the Defendant failed to prove the affirmative
      defense of self-defense by a preponderance of the evidence, your
      verdict must be guilty as to such offense according to your
      findings.

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       If you find that the State failed to prove beyond a reasonable
       doubt any one of the essential elements of the offense charged in
       the indictment, or the Defendant proved the affirmative defense
       of self-defense by a preponderance of the evidence, your verdict
       must be not guilty as to such offense according to your findings.

(Tr. Trans. pp. 337-39) (emphasis added).

       {¶36} The affirmative defense of self-defense requires the jury to consider

Hadley’s conduct in the altercation, including whether Hadley was at fault in

creating the situation in which the force was used, whether Hadley had reasonable

grounds to believe and an honest belief that he was in imminent danger of bodily

harm given the evidence of Ayars’ conduct—and specifically whether Hadley was

justified in using the amount of force he did against Ayars under the facts of this

case. See State v. Williford, 49 Ohio St.3d 247, 249, (1990). Moreover, the

affirmative defense of self-defense is not available to Hadley if the facts establish

that Hadley used more force than reasonably necessary and if the force is greatly

disproportionate to the apparent danger presented by Ayars. Id., see, also, 2 Ohio

Jury Instructions, Section CR-421.23 (2011).

       {¶37} Notwithstanding the obvious rejection by the jury of Hadley’s

affirmative claim of self-defense pursuant to the foregoing instruction and the

evidence in this case, Hadley argues on appeal that the trial court committed

reversible error when it declined to also instruct the jury that Hadley was entitled



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to a presumption of self-defense in accordance with R.C. 2901.05(B).              In

particular, R.C. 2901.05(B) provides the following.

      (B)(1) Subject to division (B)(2) of this section, 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 or vehicle
      occupied by the person using the defensive force.

      (2)(a) The presumption set forth in division (B)(1) of this section
      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
      or vehicle.

      (b) The presumption set forth in division (B)(1) of this section
      does not apply if the person who uses the defensive force uses it
      while in a residence or vehicle and the person is unlawfully, and
      without privilege to be, in that residence or vehicle.

      (3) The presumption set forth in division (B)(1) of this section is a
      rebuttable presumption and may be rebutted by a preponderance
      of the evidence.

R.C. 2901.05(B) (emphasis added.)

      {¶38} Hadley maintains that the failure of the trial court to instruct the jury

in this case on the presumption of self-defense contained in R.C. 2901.05(B)(1)

constitutes prejudicial error because the outcome of the trial would have been

different with the R.C. 2901.05(B) instruction. Specifically, Hadley argues that

even though the evidence in this case was not sufficient to convince the jury of his

affirmative defense of self-defense by a preponderance of the evidence, and even

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though the jury found the prosecution’s evidence was sufficient to establish the

elements of felonious assault beyond a reasonable doubt, the jury could have

found the prosecution’s evidence was not sufficient to rebut the presumption of

self-defense under R.C. 2901.05(B)(1) by a preponderance of the evidence. We

disagree.

      {¶39} In addressing Hadley’s contention that the absence of the jury

instruction on the presumption of self-defense in R.C. 2901.05(B)(1) constituted

prejudicial error, we note that when reviewing a trial court’s decision on a

requested jury instruction, an appellate court must determine whether the trial

court’s refusal to give a requested jury instruction constituted an abuse of

discretion under the facts and circumstances of the case. State v. Wolons, 44 Ohio

St.3d 64, 68 (1989); State v. Collier, 2d Dist. No. 20131, 2005–Ohio–119, ¶ 25.

The term “abuse of discretion” implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

(1983).     Moreover, in order to constitute reversible error, the appellant must

demonstrate that he was prejudiced by the absence of the particular jury

instruction requested. State v. Comen, 50 Ohio St.3d 206, 210 (1990). This

inquiry is dependent on the particular facts and circumstances of each case. See

State v. Jackson, 22 Ohio St.3d 281 (1986); see, also, State v. Williford, 49 Ohio

St.3d 247 (1990).


                                       -21-
Case No. 9-11-30


       {¶40} After the presentation of evidence and prior to the trial court

instructing the jury, Hadley’s counsel asked the trial court to instruct the jury on

the presumption of self-defense in R.C. 2901.05(B)(1), also referred to as the

“Castle Doctrine.” The trial court overruled Hadley’s motion and concluded the

following.

       The definition of the residence under this Castle Doctrine does
       include the front porch, there’s no question that Mr. Ayars was
       privileged to be there as an Officer doing work for the Federal
       Government. Residence is not sub-divided in the statute. For
       those reasons the Castle Doctrine is not applicable. And the
       Motion of the Defendant is overruled.

(Tr. Trans. p. 293).

       {¶41} We note that the trial court properly determined that it was

inconsequential to the application of R.C. 2901.05(B) whether the altercation

between Hadley and Ayars occurred solely on Hadley’s roofed porch, as Ayars

contends, or whether Ayars actually attempted to enter Hadley’s residence, as

Hadley contends. Revised Code Section 2901.05(D) defines “residence” for the

purposes of the presumption of self-defense in R.C. 2901.05(B)(1) as the

following:

       (2) “Dwelling” means a building or conveyance of any kind that
       has a roof over it and that is designed to be occupied by people
       lodging in the building or conveyance at night, regardless of
       whether the building or conveyance is temporary or permanent
       or is mobile or immobile. As used in this division, a building or
       conveyance includes, but is not limited to, an attached porch, and


                                       -22-
Case No. 9-11-30


         a building or conveyance with a roof over it includes, but is not
         limited to, a tent.

         (3) “Residence” means a dwelling in which a person resides
         either temporarily or permanently or is visiting as a guest.

R.C. 2901.05(D) (emphasis added).

         {¶42} Nevertheless, as the basis for its ruling excluding the requested

instruction, the trial court determined that Ayars had a privilege to be at Hadley’s

residence by virtue of his position as a Census worker. However, neither the trial

court, nor the prosecution on appeal, cite to any authority supporting the

conclusion that Ayars retained the privilege to remain at Hadley’s residence after

being told to leave by Hadley. Therefore, we believe the trial court’s reliance on

privilege was misplaced and that any privilege Ayars may have had to be at the

Hadley residence was revoked when Hadley asked Ayars to leave.

         {¶43} Notwithstanding our determination that the trial court’s basis for

denial of the instruction was misplaced, we still must determine whether the trial

court’s ruling was prejudicial to Hadley’s case or whether it constituted harmless

error.    Criminal Rule 52(A) directs us to disregard “[a]ny error, defect,

irregularity, or variance which does not affect [a defendant’s] substantial rights.”

The term “affect a defendant’s substantial rights” means “ ‘that the error must

have been prejudicial.      It must have affected the outcome of the [trial]




                                       -23-
Case No. 9-11-30


proceedings.’ ” (Emphasis omitted.) State v. Fisher, 99 Ohio St.3d 127, 2003-

Ohio-2761, ¶ 7, quoting United States v. Olano, 507 U.S. 725, 734 (1993).

         {¶44} In order for the jury to convict Hadley of felonious assault with a

deadly weapon, the jury had to not only find that the prosecution established all

the elements of the offense beyond a reasonable doubt, but also that Hadley failed

to prove his claim of self-defense by a preponderance of the evidence. When

considering whether the facts at trial adequately established Hadley’s claim of

self-defense, the jury considered all of the evidence presented concerning the

conditions and circumstances of the altercation between Hadley and Ayars.

         {¶45} Therefore, when the jury entered its conviction, it concluded that

Hadley failed to demonstrate even by a preponderance of the evidence that he was

not at fault in creating the situation giving rise to the use force, that he had

reasonable grounds to believe and an honest belief that he was in imminent danger

of bodily harm, and that the amount of force used was reasonable, necessary and

proportional to the apparent danger.2 In other words, the jury specifically assessed

the reasonableness of Hadley’s action in striking Ayars with a baseball bat. Thus,

even assuming the jury found that Hadley was not at fault in creating the situation

and that he had an honest belief that he was in imminent danger of bodily harm,


2
  We acknowledge that the jury was also instructed on Hadley’s claim that he acted in defense of Donita
Valdez, which requires the jury to conduct an analysis of the facts similar to Hadley’s claim of self-defense.
However, it is evident from the jury’s verdict that it also concluded the evidence did not support Hadley’s
claim that he was justified in striking Ayars with the bat while acting in defense of Donita.

                                                    -24-
Case No. 9-11-30


the jury had to still determine whether the evidence demonstrated that Hadley’s

immediate use of a baseball bat against Ayers was reasonably necessary under the

circumstances and was proportionate to the apparent danger presented by Ayars’

conduct.

       {¶46} At trial, Hadley offered testimony attempting to establish the

elements of self-defense. Specifically, Hadley testified that Ayars was the initial

aggressor, was behaving irrationally and advanced through the doorway of the

Hadley residence behind Hadley. Hadley tried to impress upon the jury that he

was scared, threatened and intimidated by Ayars’ stature, and felt that he had no

other alternative but to strike Ayars with the baseball bat.         However, the

prosecution presented Ayars’ testimony which rebutted the evidence presented by

Hadley on all the elements of self-defense. In particular, Ayars testified that

Hadley was the one who became enraged by another Census worker at his door

step attempting to collect information.    Ayars’ presence on the porch caused

Hadley to act out of rage and annoyance, which culminated in Hadley striking

Ayars with the baseball bat.

       {¶47} The evidence of Hadley’s conduct immediately after the incident, as

captured by his 9-1-1 call and by his own admissions at trial, showed that Hadley

was extremely agitated and outraged by Ayars’ presence on his front porch.

Specifically, the undisputed testimony at trial established that Hadley struck Ayars


                                       -25-
Case No. 9-11-30


with the baseball bat shortly after Ayars identified himself as a Census worker.

Both Hadley and Ayars testified that the entire incident, from the time Ayars

knocked on Hadley’s door to the time Hadley struck Ayars with the baseball bat,

happened very quickly.     Moreover, Hadley admitted that he never gave any

thought to Ayers possessing a weapon. All of this made it far more rational for a

jury to conclude that Hadley’s immediate use of the baseball bat was motivated by

fit a rage designed to get a despised Census worker off of his property rather than

by the need to use whatever force was necessary to defend his home against an

intruder intent upon entering Hadley’s house to inflict imminent bodily harm upon

Hadley or his girlfriend. See Hilgefort v. Stewart, 3d Dist. No. 17-10-13, 2011-

Ohio-253, ¶ 14 (stating the affirmative defense of self-defense is “inappropriate if

the force used is so grossly disproportionate as to show revenge or as criminal

purpose”).

      {¶48} In sum, we believe that under the circumstances of this case, even as

described by Hadley’s version of events, no rational juror could have found that

Hadley’s use of a baseball bat against Ayers was reasonably necessary or

proportionate to the apparent danger.      As a result, as per the trial court’s

instruction, which followed the language of OJI, the defense of self-defense was

not available to Hadley, meaning that no further analysis or consideration of any




                                       -26-
Case No. 9-11-30


of the remaining elements of self-defense by the jury was necessary or

appropriate.3

           {¶49} The jury determined that the evidence in this case established the

elements of felonious assault beyond a reasonable doubt notwithstanding Hadley’s

version of events. As such, a rational jury could not have found that the same

evidence which was sufficient to override and completely obviate any further

consideration of Hadley’s affirmative defense and sufficient to establish the

elements of felonious assault by proof beyond a reasonable doubt, was somehow

not sufficient to rebut a presumption of self-defense under R.C. 2901.05(B) by a

mere preponderance of the evidence. This also means that any possible error in

the trial court’s comments to the jury regarding the duty to retreat, as noted by the

dissent, would be harmless and could not have affected the outcome in this case or

constituted reversible error, because no rational juror could have reasonably gotten

that far in their consideration of the elements of self-defense in view of the

excessive force used by the defendant.

           {¶50} However, Hadley next argues that our analysis of the evidence, the

common law elements of self-defense and our conclusions regarding his excessive

use of force are all irrelevant because R.C. 2901.05(B) does not permit the jury to

consider his conduct in the situation giving rise to his use of force against Ayars.



3
    See 2 Ohio Jury Instructions, Section CR-421.23 (2011).

                                                    -27-
Case No. 9-11-30


Hadley would appear to concede that the presumption of self-defense under R.C.

2901.05(B)(1) is rebuttable as stated in R.C. 2901.05(B)(3).

       {¶51} However, Hadley contends that R.C. 2901.05(B)(2) provides for

only two narrow and specific grounds upon which the prosecution can rebut the

presumption of self-defense set forth in R.C. 2901.05(B)(1). Thus, according to

Hadley, under R.C. 2901.05(B)(2), the prosecution’s rebuttal evidence in this case

would be limited to either: a) proving by a preponderance of the evidence that

Ayars was a lawful resident of Hadley’s home; or b) proving by a preponderance

of the evidence that Hadley was unlawfully and without privilege to be in his

residence.    It is undisputed that neither of these two scenarios is present in this

case. Thus, Hadley argues that the prosecution could not have possibly rebutted

the presumption of self-defense and, therefore, he would have been acquitted had

the jury been instructed under R.C. 2901.05(B).

       {¶52} It is clear from Hadley’s argument that he interprets the language in

R.C. 2901.05(B)(2) to provide the prosecution with two exclusive means of

rebutting the presumption of self-defense stated in R.C. 2901.05(B)(1). However,

we believe that Hadley is misconstruing the plain language of the statute in

making this interpretation.




                                        -28-
Case No. 9-11-30


      {¶53} The manner in which R.C. 2901.05(B) is structured is particularly

instructive in resolving this matter.    First, R.C. 2901.05(B)(1) describes the

presumption of self-defense and the scenario in which it applies.

      (B)(1) Subject to division (B)(2) of this section, 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 or vehicle
      occupied by the person using the defensive force.

R.C. 2901.05(B)(1).

      {¶54} Next, R.C. 2901.05(B)(2)(a) and (b) set forth two threshold

exceptions, delineating circumstances where the presumption of self-defense

stated in R.C. 2901.05(B)(1) does not apply.

      (2)(a) The presumption set forth in division (B)(1) of this section
      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
      or vehicle.

      (b) The presumption set forth in division (B)(1) of this section
      does not apply if the person who uses the defensive force uses it
      while in a residence or vehicle and the person is unlawfully, and
      without privilege to be, in that residence or vehicle.

R.C. 2901.05(B)(2)(a),(b) (emphasis added).

      {¶55} Nothing in this language refers to circumstances which may be

sufficient to rebut the presumption.    On the contrary, these sections describe

circumstances which negate the existence of the presumption itself. Thus, the

                                        -29-
Case No. 9-11-30


defendant is precluded from invoking and/or is not entitled to the presumption of

self-defense if the person against whom the defensive force was used had a right to

be in or was a lawful resident of the residence at issue, or if the defendant used the

defensive force while he or she was unlawfully or without privilege to be in the

residence.

       {¶56} Finally, R.C. 2901.05(B)(3) clarifies that in cases where the

presumption of self-defense stated in R.C. 2901.05(B)(1) does apply, the

presumption is a rebuttable one and as such can be rebutted by the prosecution by

a preponderance of the evidence.

       (3) The presumption set forth in division (B)(1) of this section is
       a rebuttable presumption and may be rebutted by a
       preponderance of the evidence.

R.C. 2901.05(B)(3)

       {¶57} The legislature dedicated an entirely separate section to the rebuttal

provisions in R.C. 2901.05(B)(3). If the legislature had intended to specify the

circumstances of sections R.C. 2901.05(B)(2)(a) and (b) as the exclusive means of

rebuttal, it would have been easier and far more logical to include them under R.C.

2901.05(B)(3) pertaining to rebuttal, rather than immediately following (and hence

likely intending to modify the application of) R.C. 2901.05(B)(1) creating the

presumption itself. Clearly, reading the statute as Hadley argues blurs the contents




                                        -30-
Case No. 9-11-30


of R.C. 2901.05(B)(2) and R.C. 2901.05(B)(3), which are distinct and separate

considerations under the statute.

       {¶58} In addition, construing the statute to limit the prosecution in

rebutting the presumption of self-defense by the use of only the two status

classifications stated R.C. 2901.05(B)(2) effectively gives the defendant a

conclusive presumption as to all of the conduct-related elements of self-defense.

For instance, under Hadley’s interpretation of the statute, the prosecution is

precluded from ever rebutting the actual elements of self-defense with evidence

that the defendant was not justified in using force or that the defendant used force

unreasonably necessary and disproportionate to the apparent danger presented by

the situation.

       {¶59} This would mean that in every scenario in which the presumption of

self-defense stated in R.C. 2901.05(B)(1) applies, the defendant is entitled to use

any amount of force—even if it is unjustified or disproportionate to the apparent

danger presented—against someone in his or her residence who is not privileged

to be there regardless of the particular facts and circumstances of the situation.

This produces an absolute license to commit any level of violence, including

deadly force against any trespasser, immediately upon revoking their privilege to

be there, and regardless of the circumstances.




                                       -31-
Case No. 9-11-30


      {¶60} In this case, Hadley’s interpretation of R.C. 2901.05(B)(2)(a) and (b)

leads to the conclusion that he had the absolute right as a matter of law to shoot

Ayers dead on his porch the instant he failed to honor Hadley’s first request to

leave without any examination of the circumstances or his conduct being

admissible to rebut the presumption of self-defense, beyond the status

classifications of R.C. 2901.05(B)(2)(a) and (b). We do not believe such an intent

was contemplated by the legislature in promulgating the statutory scheme in R.C.

2901.05(B).

      {¶61} Moreover, we note that other appellate districts have not limited

their analysis to the two narrow exceptions Hadley advocates when considering

whether the presumption of self-defense under R.C. 2901.05(B)(1) has been

sufficiently rebutted. Instead, consistent with our reasoning outlined above, these

courts have reviewed whether the actual elements of self-defense have been

rebutted by the evidence in the record. See e.g., State v. Petrone, 5th Dist. No.

2011CA00067, 2012-Ohio-911, ¶ 73; State v. Kolzlosky, 195 Ohio App.3d 343,

2011-Ohio-4814, ¶¶ 26, 29 (8th Dist.).

      {¶62} Therefore, we conclude that R.C. 2901.05(B) permits the

prosecution to rebut the presumption of self-defense contained in R.C.

2901.05(B)(1) by demonstrating by a preponderance of the evidence that the




                                         -32-
Case No. 9-11-30


actual elements of self-defense were not established by the facts presented in a

particular case.

       {¶63} Accordingly, because under any version of the testimony, the

evidence in this case establishes that the force used was disproportionate and

excessive to any perceived threat, we conclude that the outcome of this case would

not have been different even if the jury had been instructed on the presumption of

self-defense in R.C. 2901.05(B)(1).     The evidence presented at trial by the

prosecution was adequate not only for the jury to conclude beyond a reasonable

doubt that Hadley had committed the offense of felonious assault with a deadly

weapon, but was also adequate to rebut Hadley’s claim of self-defense by a

preponderance of the evidence, and in turn was more than sufficient to rebut by a

preponderance of the evidence the presumption that Hadley acted in self-defense

under R.C. 2901.05(B)(1).

       {¶64} Therefore, we conclude that under the particular facts and

circumstances of this case, Hadley did not suffer prejudicial error when the trial

court declined to instruct the jury on the presumption of self-defense in R.C.

2901.05(B)(1). See State v. Jackson, 22 Ohio St. 3d 281 (1986) (concluding that

“a special instruction on appellant’s duty to retreat when attacked in or about his

home may have been helpful to the jury. Our review of the record, however,

convinces us that the omission of such an instruction was not prejudicial error


                                       -33-
Case No. 9-11-30


requiring reversal under the facts of this case. * * * As demonstrated by the

foregoing, the jury simply rejected appellant’s theory of self-defense.”).

       {¶65} Hadley’s first assignment of error is overruled.

                             Third Assignment of Error

       {¶66} In his third assignment of error, Hadley argues that the trial court

committed reversible error when it sustained the prosecution’s objection excluding

certain evidence regarding Ayars’ mental health.

       {¶67} We begin by acknowledging that a trial court has discretion to

determine whether to admit or exclude evidence. Krischbaum v. Dillon, 58 Ohio

St.3d 58, 66 (1991). Therefore, an appellate court will not disturb a trial court’s

decision on the exclusion or admission of evidence absent an abuse of discretion.

Id. An abuse of discretion suggests the trial court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

       {¶68} On cross-examination, Hadley’s attorney began to question Ayars

about his mental health history.       The prosecution objected to the line of

questioning on the basis of Evid. R. 403(A), which provides, in pertinent part.

       Exclusion Mandatory

       Although relevant, evidence is not admissible if its probative
       value is substantially outweighed by the danger of unfair
       prejudice, of confusion of the issues, or of misleading the jury.


                                        -34-
Case No. 9-11-30


       {¶69} Outside the presence of the jury, defense counsel proffered the

following statement as to the matters he wished to cross-examine Ayars about in

front of the jury.

       Well, Your Honor, he is, by his own admission, prescribed
       Seroquel, Flexatine, and Buspirone. These are medications used
       to treat schizophrenia, bipolar, depression and anxiety. Two of
       them are antipsychotic medications. Your Honor, clearly the
       witness has mental health issues and he can disclose to the jury
       exactly what they are and what effects they have on him. I know
       from my own research that schizophrenics have a tendency to
       become aggressive, they have violent mood swings, and certainly
       this is a situation that would cause him to engage in a mood
       swing. Bipolar people also have the tendency to have mood
       swings, and this is the sort of situation that a mood swing would
       arise.

(Tr. Trans. p. 184).

       {¶70} Nothing in the proffer indicated that Hadley’s counsel intended to

present any credible evidence, medical records or expert testimony beyond

counsel’s own questions and beliefs posed to Ayers in order to permit the jury to

speculate how these medications might have influenced Ayars’ conduct in the

altercation with Hadley. As such, the “evidence” revealed in the proffer was at

best speculative, and would require the jury to stack multiple inferences and to

make assumptions about Ayars’ mental health and its relevance to the particular

facts of the case at hand.    This would clearly present the danger of unfair

prejudice, of confusion of the issues and of misleading the jury. See Oberlin v.

Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-Ohio-248 (stating that

                                      -35-
Case No. 9-11-30


“[u]nfair prejudice is that quality of evidence [that] might result in an improper

basis for a jury decision”).

       {¶71} In addition, while on the stand, Hadley testified that Ayars

“snapped” and became aggressive when Hadley touched his back and “gestured”

to Ayars to leave his front porch. Hadley also repeatedly testified that he felt

threatened, scared, and intimidated by Ayars advancing through his doorway

because Ayars was behaving irrationally and is a bigger man than Hadley. Thus,

the trial court’s decision to exclude the proffered testimony regarding Ayars’

mental health did not prevent Hadley from presenting evidence to support his

version of events that Ayars was the initial aggressor.

       {¶72} Therefore, we conclude that the trial court did not abuse its

discretion when it excluded the proffered evidence of Ayars’ mental health on the

basis that its probative value was substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.

       {¶73} Hadley’s third assignment of error is overruled.

                               Fourth Assignment of Error

       {¶74} In his fourth assignment of error, Hadley alleges that his Sixth

Amendment right of confrontation was violated when the trial court allowed the

jury to hear the recorded statements of Heather Schilling without providing




                                          -36-
Case No. 9-11-30


Hadley with the opportunity to cross-examine Schilling on these particular

statements.

         {¶75} The prosecution initially called Schilling to the stand in its case-in-

chief. Schilling is the nineteen-year-old neighbor who lives across the street from

Hadley and who claimed to have witnessed the altercation between Hadley and

Ayars.     Shortly after the incident, Officer Cox of the Marion City Police

Department recorded statements Schilling made regarding her eye witness

account. On direct examination, Schilling testified that the altercation between

Hadley and Ayars occurred on the front porch of the Hadley residence. Schilling

also stated that Ayars did not attempt to enter the Hadley residence, as Hadley

contended.

         {¶76} On cross-examination, Hadley’s counsel asked Schilling about the

recorded statements she made to Officer Cox—specifically, whether Schilling

remembered stating that Hadley was inside his house at the time he struck Ayars

with the baseball bat. On the stand, Schilling did not remember making this

specific statement.     Hadley’s counsel then attempted to introduce and play

Schilling’s recorded statements for impeachment purposes.           The prosecution

objected to the recording on the basis that the defense had not yet shown Schilling

made a prior inconsistent statement. The trial court overruled the objection and

allowed the defense to continue with its line of questioning.


                                         -37-
Case No. 9-11-30


       {¶77} The defense then chose to play isolated portions of the recording

during which Schilling states that Hadley was in the doorway when Hadley struck

Ayars. On the stand, Schilling again denied making this statement. Hadley’s

counsel then played another isolated portion of the recording during which

Schilling states that Ayars did not step into Hadley’s home, but “peeked” his head

into the house. Schilling again denied making this statement on the stand. The

defense played a third isolated portion of the recording during which Schilling

again states that Ayars did not step into Hadley’s house but “peeked” into the

home and asked “how many people do you have in there.” This time, Schilling

admitted that it was her voice on the recording making this particular statement.

       {¶78} The trial court then permitted the defense to question Schilling, over

the objection of the prosecution, about other incidents not pertaining to this case.

These incidents included an occasion on which Schilling allegedly shot Hadley’s

truck several times with a BB gun, and a separate occasion on which Schilling

filed a report with the police accusing Hadley of Gross Sexual Imposition. Both

of these incidents were introduced to demonstrate Schilling’s bias against Hadley

and to undermine her credibility on the stand. Once the defense finished its cross-

examination, the prosecution posed no further questions to Schilling.

       {¶79} After the defense rested, the prosecution called Officer Cox to the

stand on rebuttal. The prosecution then sought to introduce and play Schilling’s


                                        -38-
Case No. 9-11-30


entire statement recorded by Officer Cox, over Hadley’s objection. The trial court

overruled the objection based on the grounds articulated by the prosecution that

Schilling’s recorded statements were generally consistent with her prior testimony

and that her overall prior recorded statement rebutted the limited excerpts

presented by the defense. Thus, the entire 5:39 minute recording was played for

the jury, which included the portions previously played by the defense for

impeachment purposes.

      {¶80} The remainder of the recording revealed that Schilling made

statements indicating that Hadley was inside the door and that Ayars was on the

porch when the alleged assault occurred.         However, Schilling also made

inconsistent statements on the recording by first stating she did not actually see

Hadley strike Ayars with the bat, and then stating she “saw the whole thing.” On

cross-examination   of   Officer   Cox,   Hadley’s    counsel   highlighted   these

inconsistencies in Schilling’s testimony, which Officer Cox acknowledged.

      {¶81} After reviewing the record, it is clear that significant inconsistencies

between Schilling’s testimony and her prior statements to police were thoroughly

brought to light in front of the jury. Moreover, on balance, the trial court’s

decision to permit the prosecution to play Schilling’s entire recorded statement on

rebuttal only served to further undermine Schilling’s credibility. Accordingly, we

conclude that even if the trial court erred in not permitting Hadley to recross-


                                       -39-
Case No. 9-11-30


examine Schilling on these additional statements, the error was harmless and did

not prejudice Hadley’s defense.

      {¶82} Hadley’s fourth assignment of error is overruled.

                           Second Assignment of Error

      {¶83} In his second assignment of error, Hadley argues that the jury’s

verdict was not supported by sufficient evidence and was against the manifest

weight of the evidence.

      {¶84} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, paragraph two of the syllabus (1981), superseded by state constitutional

amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.” Id.

      {¶85} On the other hand, in order to determine whether a conviction is

against the manifest weight of the evidence a reviewing court must examine the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether in resolving conflicts in the


                                       -40-
Case No. 9-11-30


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. Thompkins, 78 Ohio St.3d 380, 387 (1997). However, a new trial should

be granted only in the exceptional case in which the evidence weighs heavily

against conviction. Id. In addition, a reviewing court must allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶86} The jury convicted Hadley of felonious assault with a deadly

weapon, in violation of R.C. 2903.11(A)(2), a felony of the second degree.

Revised Code Section 2903.11(A)(2) states, in pertinent part:

       (A) No person shall knowingly * * *

       (2) Cause or attempt to cause physical harm to another * * * by
       means of a deadly weapon or dangerous ordnance.

The term deadly weapon is defined in R.C. 2923.11(A) and means

       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.

The term physical harm is defined in R.C. 2901.01(A)(3) and means

       any injury, illness, or other physiological impairment, regardless
       of its gravity or duration.

       {¶87} It is undisputed by the evidence presented at trial that Hadley struck

Ayars with a baseball bat, which is a device capable of inflicting death and that


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Hadley used the bat as a weapon against Ayars. It is also undisputed by the

evidence presented at trial that Hadley caused Ayars physical harm when he struck

Ayars in the forearm with the bat.

       {¶88} Hadley’s argument on appeal is that the jury’s verdict was not

supported by sufficient evidence and was against the manifest weight of the

evidence. Hadley bases this argument on his contention set forth in his first

assignment of error that the trial court erred when it declined to instruct the jury on

the presumption of self-defense contained in R.C. 2901.05(B)(1). As previously

discussed, Hadley contends that had the jury been instructed on this presumption

of self-defense it would not have convicted him of felonious assault. Therefore,

according to Hadley, the jury’s verdict is not supported by sufficient evidence and

is against the manifest weight of the evidence.

       {¶89} However, in addressing Hadley’s first assignment of error we

concluded that he did not suffer prejudicial error by the trial court refusing to give

the requested instruction because even if the instruction on the presumption of

self-defense had been given, the outcome of the trial would not have been

different. Accordingly, for this reason and based upon the evidence presented at

trial, we find that the jury’s verdict was supported by sufficient evidence and was

not against the manifest weight of the evidence.




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       {¶90} For all these reasons, the judgment is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI, J., concurs.

/jlr



ROGERS, J., dissents.

       {¶90} I respectfully dissent from the majority’s opinion. In my view, the

trial court erred in denying Hadley’s request for a jury instruction on the Castle

Doctrine, and erred in limiting Hadley’s examination of Ayars. Further, contrary

to the majority’s determination, I find that these errors were not harmless, and

consequently would reverse the trial court’s judgment and order a new trial.

                             Assignment of Error No. I

       {¶91} When instructing the jury, a trial court is required to provide the jury

with a plain, distinct, and unambiguous statement of the law applicable to the

evidence presented to the trier of fact. Marshall v. Gibson, 19 Ohio St.3d 10, 12

(1985). The trial court must “give a complete or correct jury instruction on the

elements of the offenses charged and the defenses thereto which are raised by the

evidence * * *.” State v. Williford, 49 Ohio St.3d 247, 252 (1990).




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         {¶92} The Castle Doctrine, codified in R.C. 2901.05, establishes a

presumption in favor of one who acts in self-defense while lawfully occupying a

residence as an owner or a guest.4 R.C. 2901.05(B) provides as follows:

         (B)(1) Subject to division (B)(2) of this section, 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 or vehicle occupied by the person
         using the defensive force.

         (2)(a) The presumption set forth in division (B)(1) of this section
         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 or
         vehicle.

         (b) The presumption set forth in division (B)(1) of this section does
         not apply if the person who uses the defensive force uses it while in
         a residence or vehicle and the person is unlawfully, and without
         privilege to be, in that residence or vehicle.

         (3) The presumption set forth in division (B)(1) of this section is a
         rebuttable presumption and may be rebutted by a preponderance of
         the evidence.

R.C. 2901.05(D)(2) & (3) define the terms dwelling and residence as follows:

         (2) “Dwelling” means a building or conveyance of any kind that has
         a roof over it and that is designed to be occupied by people lodging
         in the building or conveyance at night, regardless of whether the
         building or conveyance is temporary or permanent or is mobile or
         immobile. As used in this division, a building or conveyance
         includes, but is not limited to, an attached porch, and a building or
         conveyance with a roof over it includes, but is not limited to, a tent.
4
 R.C. 2901.05(B) applies equally to vehicles, but since this matter involves a residence we will limit our
discussion to residences for the sake of clarity.

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       (3) “Residence” means a dwelling in which a person resides either
       temporarily or permanently or is visiting as a guest.

       {¶93} Also pertinent to our discussion is R.C. 2901.09, which reads in its

entirety:

       (A) As used in this section, “residence” and “vehicle” have the
       same meanings as in section 2901.05 of the Revised Code.

       (B) 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.

The purpose of the doctrine and R.C. 2901.09 is to recognize the right of a person,

lawfully in a residence, to defend themselves (and/or others) without resorting to

attempts to retreat before using force against an aggressor.

       {¶94} R.C. 2901.05(B)(2), meanwhile, defines only two circumstances

under which the presumption will not apply. First, the presumption will not apply

if the person against whom defensive force is used “has a right to be in, or is a

lawful resident of, the residence.”       R.C. 2901.05(B)(2)(a).    Secondly, the

presumption will not apply if the person who uses the defensive force “is

unlawfully, and without privilege to be, in that residence.” R.C. 2901.05(B)(2)(b).

If neither of these circumstances arise, however, the presumption of R.C.


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2901.05(B) applies with full force. Without an instruction on the presumption

there is not a complete or correct jury instruction.

       {¶95} Here, the State has alleged that Hadley assaulted Ayars, and Hadley

has argued that he acted in self-defense. While the trial court did instruct the jury

on the defense of self-defense, it denied Hadley the presumption contained in R.C.

2901.05(B), and erroneously instructed the jury to consider whether Hadley had

violated a duty to retreat.

       {¶96} It was proven and, and even undisputed, that Hadley and Ayars were

on a porch attached to Hadley’s residence when Hadley told Ayars to leave. As

such, Hadley was lawfully in his residence at the time of the alleged assault and

Ayars’ purported privilege was terminated when he was told to leave. From these

undisputed facts, it is exceedingly clear that Hadley was entitled to a jury

instruction on the Castle Doctrine and to the protection of rights that it affords.

Therefore, failure to instruct the jury about the Castle Doctrine was unreasonable,

arbitrary, and unconscionable.

       {¶97} While I believe that the trial court’s failure to instruct on the Castle

Doctrine is itself reversible error, I also note that the trial court here compounded

that error by erroneously instructing the jurors on the duty to retreat as it relates to

the affirmative defense of self-defense. In proving this defense, the defendant

typically has the burden to show by a preponderance of the evidence (1) that he


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was not at fault in creating the violent situation; (2) that he 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 force used; and (3) that he did not violate a duty to retreat

or to avoid the danger. State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two

of the syllabus. Evidence disproving one of these three enumerated conditions

would usually effectuate a rebuttal. However, R.C. 2901.09 specifically provides

that “a person who lawfully is in that person’s own residence has no duty to retreat

before using force in self-defense[.]”      Therefore, when the Castle Doctrine

presumption applies, it may only be rebutted by evidence demonstrating (1) that

the person using defensive force was at fault in creating the situation; or (2) that

the person using defensive force did not have a bona fide belief that he was in

imminent danger of death or great bodily harm.

       {¶98} The majority has concluded that the jury’s verdict demonstrates that

the jury rejected the affirmative defense of self-defense.

       * * * [W]hen the jury entered its conviction, it concluded that
       Hadley failed to demonstrate even by a preponderance of the
       evidence that he was not at fault in creating the situation giving rise
       to the use force, that he had reasonable grounds to believe and an
       honest belief that he was in imminent danger of bodily harm, and
       that the amount of force used was reasonable, necessary and
       proportional to the apparent danger. In other words, the jury
       specifically assessed the reasonableness of Hadley’s action in
       striking Ayars with a baseball bat. Thus, even assuming the jury
       found that Hadley was not at fault in creating the situation and that
       he had an honest belief that he was in imminent danger of bodily
       harm, the jury had to still determine whether the evidence

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       demonstrated that Hadley’s immediate use of a baseball bat against
       Ayers was reasonably necessary under the circumstances and was
       proportionate to the apparent danger presented by Ayars’ conduct.
       (Footnote omitted.) Ante at ¶ 45.

This view is misguided since the majority has failed to discuss, or even recognize,

the trial court’s erroneous instruction on the duty to retreat. The duty to retreat

when in one’s own home has been specifically and unequivocally rejected by the

Ohio legislature, yet the trial court’s instructions do not reflect this legislative

rejection. As such, any instruction on an alleged duty to retreat was contrary to

law, highly prejudicial, and irreparably tainted the proceedings to the point that

this court cannot speculate on what weight the jury gave to this defective

instruction.

       {¶99} Furthermore, the majority has conjectured, without legitimate basis,

as to what conclusions a reasonable juror would have reached had he or she

received correct and complete instructions.        However, it is not this court’s

prerogative, nor that of the trial court, to weigh the evidence and remove the

factual issues from the jury. And to do so when the instruction was contrary to

law is an outrage. The issue here is not what the majority feels is the correct

outcome of the case. The issue is whether this defendant received a fair trial from

a jury of his peers. The obvious answer is that he did not and this matter must go

back so that he can receive a fair trial.



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       {¶100} For the foregoing reasons, I would find that the failure to instruct on

the statutory presumption contained in R.C. 2901.05(B), without more, is

reversible error. Further, in my view, this reversible error was rendered even more

egregious by the trial court’s erroneous inclusion of an instruction on the duty to

retreat.

                            Assignment of Error No. III

       {¶101} In his third assignment of error, Hadley argues that he was

prejudiced by the trial court’s refusal to allow him to question Ayars as to what

medications he was taking, and the effects those drugs have on him. I agree.

       {¶102} The trial court and the majority have concluded that the evidence of

Ayars’ mental health should be excluded on the basis that its probative value was

substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury. The majority also relies on the fact that the

defense apparently had no expert available to testify on the matter. I fail to

understand the logic.

       {¶103} Who could better describe the effects medications have on Ayars

than Ayars himself?     Admittedly, the defense would be stuck with whatever

answers Ayars provided, but that is the risk it takes. Ayars may have stated the

drugs had no ill effects on him. On the other hand, he might have admitted to

some adverse effect such as violent mood swings. Would such an admission be


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prejudicial or confusing? I think not. In fact, such an admission would give

credibility to Hadley’s testimony about Ayars’ conduct and diminish Ayars’

credibility. While that might prejudice the State’s case, it would not be unfair

prejudice, and I fail to see how it would be confusing.

       {¶104} I would find that the inquiry of Ayars as to his mental health and his

medications was relevant and competent evidence and that the exclusion of that

evidence was unfairly prejudicial to the defense.

       {¶105} Accordingly, I would sustain Hadley’s first and third assignments

of error, reverse the conviction, and remand for further proceedings.




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