[Cite as State v. Evans, 2013-Ohio-1784.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2012-CA-00130
DARTAGNAN LEONDRE EVANS                        :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2012-
                                                   CR-0303(B)

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            April 29, 2013

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO
BY: RONALD MARK CALDWELL                           ANTHONY KAPLANIS
Stark County Prosecutor                            701 Courtyard Centre
110 Central Plaza South, Ste 510                   116 Cleveland Avenue N.W.
Canton, OH 44702                                   Canton, OH 44702
[Cite as State v. Evans, 2013-Ohio-1784.]


Gwin, P.J.

         {¶1}    Defendant-appellant Dartagnan Lee Evans [“Evans”] appeals from his

conviction and sentence in the Stark County Court of Common Pleas on one count of

felonious assault. Plaintiff-appellee is the State of Ohio.

                                       Facts and Procedural History

         {¶2}    The charges in this case arose because of a fight between two groups of

men that occurred around 3:00 a.m. on February 12, 2012, in the parking lot of the

Wales Ridge apartment complex located on Wales Road in Jackson Township.

         {¶3}    The impetus for this fight occurred two days before the confrontation. On

that day, Ryan Boylan received a phone call from an old friend and former co-worker,

Jordan Wade (nicknamed "D"), asking for a ride. After getting into Boylan's car, Wade

pulled a handgun and told Boylan, "Sorry, man, I've got to get you," meaning he was

going to rob him. Boylan handed over the only money he had at the time, $20.00, as

well as half a pack of cigarettes. Wade then got out of the car and fled on foot.

         {¶4}    Boylan told his roommate, Dillon Klein about this incident. Instead of

reporting the crime to the police, they opted to handle the matter themselves and to get

Boylan's $20.00 back from Wade. The next day, a series of phone calls occurred

between Klein, Boylan and Wade. Evans is a friend of Wade. During these calls, Wade

told Klein that he did not rob him, but that he had $20.00 if he wanted the money back.

Klein and Boylan decided to drive to the apartment complex where Wade and Evans

lived.
Stark County, Case No. 2012-CA-00130                                                    3


       {¶5}   On the way there, Klein and Boylan, along with another friend, Jamie

Taylor, called Robert Rader. They told Taylor where they were going and for what

purpose. Taylor drove to the apartment complex separately.

       {¶6}   When these groups arrived at the parking lot for the apartment complex,

they were met with an opposing group that included Evans, Wade, Preston Wade (in a

wheelchair due to a recent car accident), and Jonathon Douglas.

       {¶7}   Klein got out of the car alone to confront Wade. Klein told Wade that he

just wanted the $20.00 that Wade had taken from him.            Having observed some

members of Wade’s group were armed with weapons, including a baseball bat, a

crowbar, and a brick, Taylor called the police.

       {¶8}   Klein turned away to go back to his car. As he did so, he got sucker-

punched and rushed by Evans. After being knocked to the ground, Klein continued to be

punched and kicked about the head by Evans. Wade then joined Evans. Klein was

struck in the head with an aluminum baseball bat. Klein soon lost consciousness. A

bloodied Klein was able to make it to his car, and Boylan and Rader immediately drove

him to the hospital for treatment.

       {¶9}   The Jackson Township police arrived to find an empty parking lot. The

investigation eventually led to the Klein-Boylan group due to Klein's medical treatment

at the hospital. The police obtained statements from Klein, Boylan, and Rader as to

what had happened.

       {¶10} Detective Rowland met with Evans to talk with him about another matter.

At the conclusion of that interview, the detective asked Evans if he wanted to talk to him

about the fight. Evans chuckled and agreed to talk with the detective. Evans told
Stark County, Case No. 2012-CA-00130                                                   4


Rowland that the police had the wrong suspect (Jordan Wade), and that he was the

person who had swung the bat and hit Klein in the head. Rowland asked Evans if he

understood that he was implicating himself with a crime, and Evans responded that he

did, and then agreed to give a recorded statement after waiving his rights.

      {¶11} In his statement, Evans said that he hit Klein after Klein threw a punch at

him that had no chance of connecting. According to Evans, Klein was too slow to fight

him. While he was hitting Klein, Evans noticed that bricks were being thrown, and that

one of these bricks hit his cousin, Preston Wade, knocking him out of his wheelchair.

Klein got up and started towards Preston. To protect his cousin, Evans told Rowland

that he picked up the dropped baseball bat and hit Klein in the head.

      {¶12} Jonathon Douglas testified that their group went outside that morning in

order to calm things down as the Klein-Boylan group was agitated about getting the

$20.00 back. Klein got into Evans's face and swung at Evans. As a result, Evans started

fighting with Klein. Douglas next saw Jamie Taylor throw a brick that hit Preston Wade,

knocking him out of his wheelchair. Douglas grabbed the brick and threw it, hitting

someone. Douglas also admitted that he punched someone, breaking his, Douglas’,

hand in the process. Douglas was next hit by a brick thrown by Taylor striking him in the

eye and causing a fracture. Douglas admitted that he did not see what was occurring to

Preston Wade once he himself got involved in the fight. Douglas asserted that the police

never contacted him and that he never contacted the police.

      {¶13} Preston Wade testified that the Klein-Boylan group was calling that night

making threats. This group then showed up in their parking lot, so they went outside to

confront them. Words were exchanged, and Klein then swung at Evans, causing a fight
Stark County, Case No. 2012-CA-00130                                                       5


to break out. While Evans was fighting with Klein, two people (one of whom was Jamie

Taylor) came up to Preston and hit him in the face with a brick. This blow knocked him

out of his wheelchair, and these two people started to hit and stomp him. Preston was

eventually able to get back into his wheelchair, and observed the rest of the fight.

       {¶14} On cross-examination, Preston reiterated that Taylor was the person who

threw the brick at him. Preston also offered that his brother, Jordan Wade, was armed

with the bat when they went outside. Preston further testified that Klein came over to

him while he was on the ground after being knocked out of his wheelchair. Klein

reached Preston and was on top of him. Klein was not armed with anything, and Evans

pulled Klein off Preston, after which he told Preston to get back into his wheelchair.

       {¶15} Evans was charged along with his co-defendant, Jordan Michael Wade,

with using a baseball bat to cause serious physical harm to Dillon Klein by hitting him in

the head with the bat.

       {¶16} The jury, found Evans guilty of the felonious assault charge, and the trial

court sentenced him to a prison term of four years.

                                      Assignment of Error

       {¶17} Evans raises one assignment of error:

       {¶18} “I.   THE TRIAL      COURT      ERRED WHEN          IT   OVERRULED          THE

DEFENDANT'S REQUEST TO CHARGE THE JURY ON THE LAW OF THE DEFENSE

OF ANOTHER AS IT PERTAINED TO THE DEFENSE OF PRESTON WADE.”

                                            Analysis

       {¶19} In this appeal, Evans challenges only the trial court's decision not to

instruct the jury on the affirmative defense of defense of another. In the case at bar,
Stark County, Case No. 2012-CA-00130                                                          6


Evans specifically requested the court instruct the jury on defense of another in a deadly

force situation. (2T. at 195.) Evans based his request for this instruction on the

allegation that he hit Klein with the bat in order to protect his cousin, Preston Wade. In

denying Evans's request for the instruction, the trial court concluded that the evidence

did not establish that Klein had assaulted the wheelchair-bound Preston Wade, with or

without a deadly weapon.

       {¶20} “[A]fter arguments are completed, a trial court must fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh the

evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206,

553 N.E.2d 640(1990), paragraph two of the syllabus. If a requested instruction contain

a correct, pertinent statement of the law and is appropriate to the facts, the instruction

must be included, at least in substance. State v. Nelson, 36 Ohio St. 2d 79, 303 N.E.2d

865(1973), paragraph one of the syllabus, overruled on other grounds by State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583(1982). However, the corollary of this maxim

is also true. It is well established that the trial court will not instruct the jury where there

is no evidence to support an issue. Riley v. Cincinnati, 46 Ohio St.2d 287, 348 N.E.2d

135(1976); Murphy v. Carrollton Manufacturing Co., 61 Ohio St.3d 585, 591, 575 N.E.2d

828, 832(1991). "In reviewing a record to ascertain the presence of sufficient evidence

to support the giving of an * * * instruction, an appellate court should determine whether

the record contains evidence from which reasonable minds might reach the conclusion

sought by the instruction." Feterle v. Huettner, 28 Ohio St.2d 54, 275 N.E.2d 340(1971),

at syllabus; Murphy v. Carrollton Manufacturing Co., supra; State v. Coleman, 6th Dist.

No. S-02-41, 2005-Ohio-318, ¶12.
Stark County, Case No. 2012-CA-00130                                                    7

      {¶21} Defense of another is a variation of self-defense. State v. Moss, 10th Dist.

No. 05AP–610, 2006-Ohio-1647. An actor is legally justified in using force only when

the person he is aiding would have been justified in using force to defend him or herself.

See State v. Wilson, 2nd Dist. No. 22581, 2009-Ohio-525, ¶ 38. In this respect, the

defender of another person acts at his own peril; if the original person was not acting in

self-defense, the defender is not allowed to employ force to protect that person. State v.

Abalos, 6th Dist. No. L–09–1280, 2011-Ohio-3489, ¶ 14.

      {¶22} A trial court must instruct the jury on self-defense or defense of another

only when the defendant presents sufficient evidence at trial to warrant such an

instruction. See State v. Robinson, 47 Ohio St.2d 103, 110–113, 351 N.E.2d 88 (1976).

The trial court should view this evidence in the light most favorable to the defendant and

determine, if the evidence is believed, whether it would permit a finding of reasonable

doubt as to guilt under the legal test for self-defense or defense of another. Id. If the

evidence is insufficient to raise a claim of self-defense or defense of another, then the

trial court should remove those issues from the jury's considerations. Id.

      {¶23} A claim of self-defense, or defense of another where deadly force is used,

requires the defendant to show he and the other person were not at fault in creating the

situation giving rise to conflict; he had a bona-fide belief he or the person he was

defending was in serious danger of death or great bodily harm which could only be

avoided by use of deadly force; and he and the other person did not violate a duty to

retreat or avoid the danger. State v. Williford, 49 Ohio St.3d 247, 349, 551 N.E.2d 1279

(1990). A defendant need only provide evidence of a nature and quality sufficient to

raise the defenses rather than prove the applicability of it by a preponderance of the
Stark County, Case No. 2012-CA-00130                                                     8

evidence. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88(1976). If the defendant

“fails to prove any one of these elements by a preponderance of the evidence he has

failed to demonstrate that he acted in self-defense.” State v. Jackson, 22 Ohio St.3d

281, 284, 490 N.E.2d 893 (1986).

      {¶24} When reviewing a court's refusal to give a requested jury instruction, an

appellate court considers whether the trial court's refusal to give a requested instruction

was an abuse of discretion under the facts and circumstances of the case. State v.

Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443(1989).

      {¶25} In the case at bar, as an alternative basis for denying his request, the trial

court found that all the evidence showed Evans’ use of force was greatly

disproportionate to his apparent danger and the danger to Wade. Based on the

testimony produced at trial, Evans was not entitled to an instruction on defense of

another because not all of these elements were presented.

      {¶26} In the case at bar, there is no evidence that Klein attacked Wade with a

brick or any other weapon. Taylor is the person who attacked Wade with the brick. By

his own admission, Evans attacked Klein as he, Klein, was getting up from the ground

and running toward Wade. In other words, Klein was not, and had not attacked Wade at

the time Evans attacked him with the baseball bat.

      {¶27} Here, the evidence is that the force used by Evans did in fact cause

serious physical harm to Klein. We cannot find error when clearly excessive force was

used, even if self-defense were appropriate. By asserting the defense of self-defense,

or defense of another the accused is stating, in effect, that the force he used was

required to extract him from the imminent danger of death or great bodily harm with
Stark County, Case No. 2012-CA-00130                                                       9


which he was confronted by his victim. If he used more force than was necessary, such

force was legally excessive and his defense fails. State v. Short, 10th Dist. No. 82AP-

978, 1984 WL 4604, at *2.

       {¶28} Evans admitted that he punched Klein before Wade was attacked. Klein

went down and Evans admits he “kept pounding him.” Evans did not see Klein with a

weapon, nor did he see Klein attack Wade.

       {¶29} Accordingly, after a careful review of the entire record in the case at bar,

we find that Evans failed to present sufficient evidence to establish that he was not at

fault in creating the situation giving rise to conflict, that he had a bona-fide belief he or

that Wade was in serious danger of death or great bodily harm which could only be

avoided by use of deadly force against Klein, and that he did not violate a duty to retreat

or avoid the danger.

       {¶30} Evans’ sole assignment of error is overruled.
Stark County, Case No. 2012-CA-00130                                         10


      {¶31} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur




                                        _________________________________
                                        HON. W. SCOTT GWIN


                                        _________________________________
                                        HON. PATRICIA A. DELANEY


                                        _________________________________
                                        HON. CRAIG R. BALDWIN



WSG:clw 0408
[Cite as State v. Evans, 2013-Ohio-1784.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
DARTAGNAN LEONDRE EVANS                           :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-00130




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. CRAIG R. BALDWIN
