         [Cite as State v. Love, 2017-Ohio-8960.]

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




STATE OF OHIO,                                      :   APPEAL NO. C-160651
                                                        TRIAL NO. B-1505555A
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

ANTHONY LOVE,                                       :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 13, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William R. Gallagher and Elizabeth Conklin, for Defendant-
Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant Anthony Love appeals his convictions for

felonious assault. In five assignments of error, he argues that the trial court’s failure

to give the jury instructions required by law resulted in plain error; that the trial

court erred in admitting irrelevant evidence and prejudicial testimony about his

motorcycle-club affiliation; that his convictions were not supported by sufficient

evidence; that his convictions were against the manifest weight of the evidence; and

that the cumulative effect of defense counsel’s errors violated his right to the effective

assistance of counsel.

       {¶2}    Because the trial court failed to instruct the jury on how to apply any

finding on Love’s asserted affirmative defense of defense of others, we must reverse

the trial court’s judgment and remand the cause for a new trial.


                                 Factual Background


       {¶3}    Love was involved in a street fight that took place in Mt. Adams, and

was subsequently charged with six counts of felonious assault relating to three

separate victims, Carlos Liranzo, Luke Thibodeaus, and Josea Hernandez. He was

tried before a jury with his codefendant, Alexander Mazzaro. The following evidence

was adduced at trial.

       {¶4}    On the evening of September 25, 2015, Liranzo, Thibodeaus, and

Hernandez had been out together in Mt. Adams. After leaving a bar around 2:15 a.m.

on September 26, the group walked down a street to find a cab. Love, Mazzaro, and a

third man, Michael Sansone, approached them on the street from the opposite

direction.    As the groups passed each other, Mazzaro brushed shoulders with

Thibodeaus, causing Thibodeaus to be turned around. From there, a conflict ensued.



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       {¶5}   Sensing trouble, Liranzo told the entire group that everyone should

relax. Mazzaro then punched Liranzo in the face. In response, Liranzo took Mazzaro

to the ground and pinned him there. Liranzo and Mazzaro traded punches from that

position. While straddling Mazzaro, Liranzo felt a blow to his back. In addition to

that blow, he testified that someone tried to “fishhook” him while he had Mazzaro

pinned down. He explained that an individual stuck a finger in his mouth, and that

he bit down on the finger and took out a chunk of the person’s skin. Liranzo

remained on top of Mazzaro until police arrived to break up the fight and threatened

to tase him if he did not stand up. Upon standing, he noticed blood running down

his back and discovered that he had been stabbed.

       {¶6}   While Liranzo and Mazzaro were fighting, Thibodeaus saw Love

approach Hernandez as Hernandez attempted to back away. He then saw Love take

a few steps back, put his hand in his pocket, and lunge at Liranzo. He did not see

what Love had taken out of his pocket. Thibodeaus attempted to push Love off

Liranzo, and he felt what he described as “a punch there in my chest.” He later

realized that he had been stabbed in the chest. He was bleeding and could see a gap

in his chest where muscle was protruding.

       {¶7}   Michael Sansone was called by the prosecution to testify and was

declared a hostile witness. While testifying, Sansone admitted that he had told a

detective that after the street fight had ended, Love had stated to him, “I stuck that

guy because I thought he had you.” Sansone testified that he had attempted to pull

Liranzo off Mazzaro because Liranzo was out of control and it looked like Mazzaro

was getting “his butt kicked.” Sansone denied that he had deliberately put his finger

in Liranzo’s mouth to “fishhook” him, and explained that he had tried to grab

Liranzo’s head and Liranzo had bitten his finger.

       {¶8}   Cincinnati Police Lieutenant Andrew Heyob had been working an off-

duty uniformed detail in Mt. Adams on the evening of September 25, and had


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responded to the street fight. When he arrived on the scene, Lieutenant Heyob saw

Love standing over two individuals grappling on the ground. Love was striking the

person on top with his fists and kicking at him.

       {¶9}   Liranzo and Thibodeaus were transported to the hospital. Liranzo

suffered a stab wound to his back with complications. He remained hospitalized for

three days and had to have a tube placed in his lung to drain fluids. Thibodeaus

received 12 staples to treat his wound and has a scar.

       {¶10} At the close of evidence, Love made a Crim.R. 29 motion for an
acquittal. The trial court granted Love’s motion on the two counts of felonious

assault relating to Josea Hernandez. The remaining four counts were submitted to

the jury. During closing arguments, Love’s counsel argued to the jury that Love’s

actions were justified, as he had been acting in defense of Mazzaro.

       {¶11} The jury found Love not guilty of felonious assault as to Liranzo in
violation of R.C. 2903.11(A)(1). But it returned guilty verdicts on two counts of

felonious assault, as to both Liranzo and Thibodeaus, in violation of R.C.

2903.11(A)(2), and on one count of felonious assault as to Thibodeaus in violation of

R.C. 2903.11(A)(1).

       {¶12} Love has appealed his convictions, raising five assignments of error for
our review. We address these assignments out of order.


                             Sufficiency of the Evidence


       {¶13} In his third assignment of error, Love argues that his convictions were
not supported by sufficient evidence.

       {¶14} When considering a challenge to the sufficiency of the evidence, we
must view all evidence and reasonable inferences in the light most favorable to the

prosecution to determine whether a rational trier of fact could have found the



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elements of the offenses proven beyond a reasonable doubt. State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶15} Love was convicted of felonious assault under both R.C. 2903.11(A)(1)
and (2). R.C. 2903.11(A)(1) provides that “[n]o person shall knowingly * * * [c]ause

serious physical harm to another or another’s unborn.” And R.C. 2903.11(A)(2)

provides that “[n]o person shall knowingly * * * [c]ause or attempt to cause physical

harm to another or another’s unborn by means of a deadly weapon or dangerous

ordnance.”

       {¶16} Viewed in the light most favorable to the prosecution, the evidence
presented at trial established that Love had stabbed both Liranzo and Thibodeaus

with a knife. Liranzo’s injuries required three days of hospitalization and a tube

placed in his lungs to drain fluids. Thibodeaus’s injuries required staples and left

him with a scar. A trier of fact could reasonably have found the elements of felonious

assault proven beyond a reasonable doubt.

       {¶17} We hold that Love’s convictions were supported by sufficient evidence.
The third assignment of error is overruled.


                                    Jury Instructions


       {¶18} In his first assignment of error, Love argues that the trial court
committed plain error by failing to give the jury instructions that were required by

law.

       {¶19} Love raises several challenges to the jury instructions. We begin with
his argument that the trial court failed to instruct the jury on how to apply its finding

on his asserted affirmative defense of defense of others, as it is dispositive.

       {¶20} Love failed to object to the jury instructions and consequently has
forfeited all but plain error. State v. Hilliard, 1st Dist. Hamilton No. C-160263,



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2017-Ohio-2952, ¶ 10; Crim.R. 30(A). To establish plain error pursuant to Crim.R.

52(B), Love must show “(1) that an error occurred, (2) that the error was obvious,

and (3) that the error affected the outcome of the trial.” State v. Bandy, 1st Dist.

Hamilton No. C-160402, 2017-Ohio-5593, ¶ 70. “Notice of plain error under Crim.R.

52(B) is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” Id., quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶21} The trial court gave the jury an instruction on the affirmative defense
of defense of others. In that instruction, the jury was informed that Love had the

burden of proving the affirmative defense by a preponderance of the evidence. The

trial court gave the following instruction to the jury describing the circumstances

under which it should return a verdict of guilty or not guilty:

       If you find that the State proved beyond a reasonable doubt all the

       essential elements of any one or more of the offenses charged in the

       separate counts in the indictment, your verdict must be guilty as to

       such offense or offenses according to your findings as to each

       defendant.

       If you find that the State failed to prove beyond a reasonable doubt any

       one of the essential elements of any one or more of the offenses

       charged in the separate counts of the indictment, your verdict must be

       not guilty as to such offense or offenses according to the findings as to

       each defendant.

While the court clearly told the jury how to proceed if it found that the state had

proved, or failed to prove, the essential elements of the offenses beyond a reasonable

doubt, it omitted any instruction as to how the jury should proceed upon a finding

that Love had proved, or failed to prove, the asserted affirmative defense by a

preponderance of the evidence. See 2 Ohio Jury Instructions, CR Section 425.03


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                       OHIO FIRST DISTRICT COURT OF APPEALS



(Sept.2017). We hold that the trial court erred by omitting such an instruction,

because the jury was not instructed how to proceed upon its finding on the

affirmative defense.

         {¶22} The Second District has likewise held that it was error for a trial court
to provide an incomplete jury instruction that omitted direction on how a jury should

apply its finding on an asserted affirmative defense. State v. Hmidan, 2d Dist.

Montgomery No. 17161, 1999 WL 318366 (May 7, 1999). The court stated that the

omission of such an instruction “left the jury uninformed as to how proof of the

affirmative defense operates in relation to the verdict which that proof requires.” Id.

at *3.

         {¶23} We further hold that Love has shown that the trial court’s error was
obvious. Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, at ¶ 70. “Trial

courts must give all jury instructions that are relevant and necessary for the jury to

properly weigh the evidence and perform its duty as the fact finder.” Id. at ¶ 71. The

trial court’s failure to instruct the jury on how to apply its finding on Love’s

affirmative defense left the jury uninformed as to how to perform its duty. We hold

that it also affected the outcome of the trial and resulted in a manifest miscarriage of

justice. Id. at ¶ 70. The incomplete instruction prevented the jury from properly

applying the law to reconcile any finding on the affirmative defense with its finding

that the state had proved the elements of felonious assault beyond a reasonable

doubt. See State v. Roberts, 109 Ohio App.3d 634, 639, 672 N.E.2d 1053 (6th

Dist.1996).

         {¶24} Because Love has established that the trial court committed plain error
by failing to properly instruct the jury, we sustain his first assignment of error. Our

resolution of this assignment of error renders his remaining assignments of error

moot.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} The judgment of the trial court is reversed, and this cause is remanded
for a new trial.

                                              Judgment reversed and cause remanded.


ZAYAS, J., concurs.
MOCK, P.J., concurs in part and dissents in part.


MOCK, P.J., concurring in part and dissenting in part.

       {¶26} While I agree with all other aspects of the majority opinion, I believe
that the trial court’s failure to give the complete jury instruction on the affirmative

defense of defense of another did not rise to the level of plain error warranting

reversal of Love’s conviction. And it is from that portion of the majority opinion that

I dissent.

       {¶27} The majority correctly points out that this issue was not preserved for
appellate review because Love failed to object to the trial court’s jury instruction.

Crim.R. 30(A). Accordingly, any error in those jury instructions has been waived

unless it rises to the level of “plain error.” State v. Underwood, 3 Ohio St.3d 12, 13,

444 N.E.2d 1332 (1983). Under Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” The Ohio Supreme Court has outlined the implementation of this rule.

       By its very terms, the rule places three limitations on a reviewing

       court's decision to correct an error despite the absence of a timely

       objection at trial. First, there must be an error, i.e., a deviation from a

       legal rule. Second, the error must be plain. To be “plain” within the

       meaning of Crim.R. 52(B), an error must be an “obvious” defect in the

       trial proceedings.    Third, the error must have affected “substantial




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       rights.” We have interpreted this aspect of the rule to mean that the

       trial court's error must have affected the outcome of the trial.

              Even if a forfeited error satisfies these three prongs, however,

       Crim.R. 52(B) does not demand that an appellate court correct it.

       Crim.R. 52(B) states only that a reviewing court “may” notice plain

       forfeited errors; a court is not obliged to correct them.          We have

       acknowledged     the   discretionary   aspect   of   Crim.R.   52(B)    by

       admonishing courts to notice plain error “with the utmost caution,

       under exceptional circumstances and only to prevent a manifest

       miscarriage of justice.”

(Citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶28} I agree that the trial court erred when it failed to inform the jury that
“if you find that the defendant proved by a preponderance of the evidence the

defense of [defense of another], then you must find the defendant [not guilty].” 2

Ohio Jury Instructions, CR Section 425.03 (Sept.2017). I also agree that the error

was an obvious defect in the proceeding. But this record does not support the

conclusion that Love’s substantial rights have been violated to the point that the

outcome of the trial was affected.

       {¶29} This court has held that the evidence presented at trial was sufficient
to support Love’s convictions, and I would further conclude that his convictions were

not against the manifest weight of the evidence. Additionally, during his closing

argument, Love’s counsel centered his argument on the premise that the state had

failed to prove its case beyond a reasonable doubt. Only as an afterthought did

counsel raise the affirmative defense. Further, while the jury was presented with the

definition of defense of another and Love’s burden of proof on that affirmative

defense, it asked no questions about its implementation. This indication that the


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jury did not reach the issue—along with the paucity of the evidence to support it and

the lack of emphasis by counsel—solidifies, in my mind, that this case does not

represent such exceptional circumstances that a reversal is required to prevent a

manifest miscarriage of justice.

       {¶30} I agree that the failure to properly instruct the jury was error, but the
error was harmless and does not warrant reversal of Love’s conviction.




Please note:

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




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