      [Cite as In re B.M., 2018-Ohio-1733.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: B.M.                                   :   APPEAL NO. C-170103
                                                  TRIAL NO. 16-4971X
                                              :

                                              :           O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: May 4, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee,

Raymond T. Faller, Hamilton County Public Defender, Sarah N. Weber and Julie
Kahrs Nessler, Assistant Public Defenders, for Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS


M ILLER , Judge.

       {¶1}   Following a bench trial before a magistrate, 14-year-old B.M. was

adjudicated delinquent for committing an act that had she been an adult would have

constituted felonious assault. B.M. now claims that the juvenile court’s delinquency

finding was against the manifest weight of the evidence. For the following reasons,

we reverse B.M.’s adjudication.

                                      Facts

       {¶2}   B.M. lived with her mother, S.W., stepfather, L.W., and her sister. One

day, B.M. and her sister neglected to lock the front door when they went to the

library. L.W. returned home from work and found the house unlocked. When B.M.

returned home, L.W. confronted her about the door and attempted to poke her. B.M.

swung at L.W. L.W. was not permitted by S.W. to physically discipline B.M. L.W.

told B.M. to go upstairs to her room to wait until her mother was home. B.M.

complied.

       {¶3}   When S.W. returned home, B.M. was called downstairs to discuss the

matter. L.W. became angry and started yelling in B.M.’s face. B.M.’s hands were at

her sides. She stepped back, her hands still down. L.W. grabbed B.M. and wrapped

his arms around her body, with one arm around her neck. B.M. had trouble talking

and breathing. B.M. said L.W. was attempting to pull her down. B.M. then stabbed

L.W. twice with a steak knife that she had in her pocket. She wounded L.W. near his

elbow and in the upper thigh.

       {¶4}   B.M. claimed that she acted in self-defense, only stabbing L.W. to free

herself from his chokehold. The magistrate disagreed, finding that B.M. failed to

establish each element of the affirmative defense of self-defense with nondeadly




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force. Over B.M.’s objections, the juvenile court adopted the magistrate’s decision.

B.M. now appeals.

                                        Analysis

         {¶5}   In her first assignment of error, B.M. claims that the juvenile court

erred as a matter of law in adjudicating her delinquent of felonious assault because

the evidence demonstrated that she acted in self-defense.

         {¶6}   As an initial matter, there are two affirmative defenses for self-defense.

The juvenile court incorrectly applied the standard for self-defense using nondeadly

force.   Both B.M. and the state argue this is error, and agree that the correct

affirmative defense under these facts is self-defense using deadly force.

         {¶7}   Under R.C. 2901.01(A)(2), “deadly force” means any force that carries

a substantial risk that it will proximately result in the death of any person. The

application of the deadly-force standard for self-defense is appropriate when a

defendant has been charged with felonious assault for harming someone with a

knife.    See In re Bumpus, 1st Dist. Hamilton No. C-020776, 2003-Ohio-4307

(deadly-force standard used where juvenile used knife to stab victim in the torso and

shoulder); State v. Hansen, 4th Dist. Athens No. 01CA15, 2002-Ohio-6135 (deadly-

force jury instruction given where defendant slashed victim with a lock-blade knife);

State v. Sims, 8th Dist. Cuyahoga No. 85608, 2005-Ohio-5846 (deadly-force jury

instruction appropriate where defendant used kitchen knife to stab victim in the face

as he lunged at her). Here, B.M. stabbed her stepfather with a steak knife in his arm

and in the upper thigh. We find that self-defense using deadly force is the applicable

affirmative defense.

         {¶8}   In order to establish the affirmative defense of self-defense using

deadly force, B.M. had to prove by a preponderance of the evidence that (1) she was


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not at fault in creating the situation giving rise to the assault; (2) she had a bona fide

belief that she was in imminent danger of death or great bodily harm and her only

means of escape from such danger was in the use of force; and (3) she had not

violated any duty to retreat or avoid the danger. In re Bumpus at ¶ 8.

       {¶9}   To determine whether B.M. established the elements of self-defense

using deadly force we consider the manifest weight of the evidence. See, e.g., In re

J.P., 8th Dist. Cuyahoga No. 81486, 2003-Ohio-3522. “The court, reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the

evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed * * *.” State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997).

       {¶10} We first inquire whether B.M. was at fault for creating the situation.

B.M. was called downstairs by both her mother and L.W. to discuss the incident that

had happened earlier that day between B.M. and L.W. B.M. did not initiate a

confrontation. L.W. became irate as he spoke. S.W. testified that immediately prior

to the stabbing, B.M. stepped back, with her hands at her sides. L.W. preemptively

restrained B.M. because he believed she intended to swing at him. B.M.’s moving

away from L.W. is what caused him to grab B.M. There is no evidence of any

additional provocative action by B.M. Thus, there is no indication that B.M. actually

instigated any physical contact; by all accounts, L.W. made the first move. L.W.’s

subjective belief that B.M. would swing at him is not supported by the record, and his

misperception is not attributable to B.M. L.W.’s belief that B.M. might hit him

cannot be used to ascribe fault to B.M.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶11} The court took issue with B.M. putting the knife in her pocket before

going downstairs for the discussion. But B.M.’s possession of the concealed weapon

did not create the situation. Prior to grabbing her, L.W. did not know B.M. had the

knife. He only realized that she possessed a weapon when he “felt something happen

to his arm and leg” after he grabbed her. The presence of the knife had no influence

on L.W.’s decision to place his arms around B.M. and did not create the situation

that gave rise to the assault. Accordingly, the first element of self-defense was met.

       {¶12} Second, B.M. had to prove that she had a bona fide belief that she was

in imminent danger of great bodily harm or death and her only means of escape from

such danger was stabbing L.W. The trier of fact “must consider the entire situation

and determine whether the person’s actions were reasonable under the

circumstances.” In re Bumpus, 1st Dist. Hamilton No. C-020776, 2003-Ohio-4307,

at ¶ 11, quoting State v. Napier, 105 Ohio App.3d 713, 664 N.E.2d 1330 (1st

Dist.1995); see State v. Oates, 2013-Ohio-2609, 993 N.E.2d 846, ¶ 11 (3d Dist.)

(defendant’s bona fide belief means a belief that was both objectively reasonable and

subjectively honest).   Here, L.W., an adult male who was already angry with B.M.

because of the earlier incident, confronted B.M. and physically restrained her by

wrapping his arms around her body. B.M. had trouble talking and breathing because

L.W.’s arm was around her neck. B.M. described L.W.’s movement as attempting to

pull her down to the ground, at which point she would have been in an even more

vulnerable position. S.W. was concerned for B.M.’s safety. The magistrate found

that B.M. was reasonable to respond with some force.           Further, there was no

evidence of serious injury from the two stab wounds to L.W.’s arm and upper thigh,

and B.M. immediately dropped the knife once L.W. let her go. It is unclear what less

force 14-year-old B.M. could have successfully applied against a grown man in this



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                     OHIO FIRST DISTRICT COURT OF APPEALS


circumstance. In conformance with the juvenile court’s finding that the use of some

force was reasonable, we hold that it was objectively reasonable for B.M. to have had

a genuine and honest belief that she was in danger of serious bodily harm and she

used appropriate force to escape.

       {¶13} Finally, B.M. did not have a legal duty to retreat.             Under R.C.

2901.09(B), “a person who lawfully is in that person’s residence has no duty to

retreat before using force in self-defense.” B.M. was in her home when she stabbed

L.W. to protect herself. Pursuant to the findings set forth in the magistrate’s decision

and adopted by the juvenile court, we hold that B.M. proved the affirmative defense

of self-defense. Accordingly, we sustain B.M.’s first assignment of error.

       In her second assignment of error, B.M. argues that the juvenile court erred in

not considering aggravated assault when there was evidence of provocation. This

assignment of error is made moot by our disposition of the first assignment of error

and we do not address it.

                                     Conclusion

       {¶14} In conclusion, because B.M. proved that she acted in self-defense and

self-defense is a complete defense to felonious assault, we reverse the judgment of

the juvenile court and discharge B.M.


                                         Judgment reversed and appellant discharged.


M YERS , P.J., and D ETERS , J., concur.


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




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