[Cite as State v. Dale, 2013-Ohio-2229.]




            IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    2012 CA 20

v.                                                   :            T.C. NO.   12CR22

SEAN D. DALE                                         :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                          Rendered on the     31st       day of       May     , 2013.

                                            ..........

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Prosecuting Attorney, 200 N. Main Street,
Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,
Ohio 45066
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Sean D. Dale was found guilty by a jury in the Champaign County
                                                                                         2

Court of Common Pleas of one count of felonious assault, one count of using a weapon

while intoxicated, and one count of possession of marijuana. He was sentenced to an

aggregate term of two years in prison and was ordered to pay restitution in the amount of

$2,371. Dale appeals from his convictions.

       {¶ 2}    For the following reasons, the judgment of the trial court will be reversed

and remanded as to felonious assault and affirmed as to using a weapon while intoxicated

and possession of marijuana. The sentence for possession of marijuana will be vacated, and

that count will be remanded for resentencing.

       {¶ 3}   The State’s evidence established that, in the early morning hours of

December 28, 2011, at Dale’s home, Dale shot his friend and coworker, Jason Lockwood,

two times with a semiautomatic handgun. Dale was under the influence of alcohol and

marijuana at the time of the shooting, and when the sheriff’s deputies responded to the

scene, they found marijuana in Dale’s sweatshirt pocket.

       {¶ 4}    Lockwood and his girlfriend had gone to Dale’s house, at Dale’s invitation,

at approximately 10:00 p.m. on December 27, for drinking and card playing. Both men

were also smoking marijuana, which was provided by Dale. Lockwood and his girlfriend’s

bickering annoyed others at the house during the evening; Lockwood’s girlfriend left the

house more than once, walking away on the country road in the dark; Lockwood would bring

her back because he was concerned for her safety, and the arguing would continue. Dale

and others in the house lost patience with this dynamic and began to argue about

Lockwood’s repeated attempts to bring the girlfriend back to the house.

       {¶ 5}    According to Lockwood, he and Dale exchanged words but had not had any
                                                                                          3

physical altercation when Dale suddenly pointed a gun at him. Lockwood had not seen

Dale retrieve the gun and did not know from where it came. Lockwood said he was

gathering up his phone and cigarettes to leave when Dale shot him in the leg. Lockwood

approached Dale to try to get the gun away from Dale, and Dale shot Lockwood a second

time in the other leg or hip. Lockwood exited to the porch and drove to a nearby relative’s

house.

         {¶ 6}   Dale called 911 to report the shooting. When sheriff’s deputies responded

to the scene, Dale admitted that he had been drinking beer and smoking marijuana, and the

deputies found marijuana in his sweatshirt. The deputies later located Lockwood at the

relative’s house and took him to a hospital for treatment.

         {¶ 7}   Dale presented a different version of events. Dale claimed that the

altercation began over a pack of cigarettes, and then Lockwood “snapped,” slammed Dale to

the kitchen floor, and got on top of him. Dale freed himself and was trying to get away

from Lockwood when he (Dale) ran upstairs to retrieve a gun. Lockwood followed Dale up

the steps. Dale ordered Lockwood out of the house, as he had already done several times,

and pointed the gun at Lockwood. In response, Lockwood went back down the stairs; Dale

followed a short time later, believing that Lockwood had left, but, in fact, Lockwood was in

the kitchen, near an exterior door. Dale stood by the kitchen sink, and he loaded the gun

because he felt threatened by Lockwood. Dale pointed the gun at Lockwood’s chest, then

lowered it and shot Lockwood in the leg. Lockwood lunged at Dale, attempting to grab the

gun, and Dale shot him again.

         {¶ 8}   Dale claimed that he fired at Lockwood in self-defense. Dale testified that
                                                                                             4

he feared for his life because of how Lockwood was acting and the “crazed” look in his eyes.

 Lockwood had previously told Dale of another incident a few months earlier in which

Lockwood had hit a man in the head with a beer bottle; Dale and Lockwood had discussed

that incident again the night of the shooting. Dale’s recollection of this story caused him to

fear Lockwood, because there were beer bottles on the table in Dale’s kitchen.

        {¶ 9}    Dale was indicted on one count of felonious assault, in violation of R.C.

2903.11(A)(2), one count of using a weapon while intoxicated, in violation of R.C.

2923.15(A)(B), and one count of possession of marijuana, in violation of R.C.

2925.11(A)(C)(3)(a). In March 2012, Dale was tried by a jury and was found guilty on all

three counts. He was sentenced to two years for felonious assault and to five months each

on the other charges, to be served concurrently; he was also fined $500 on each count.

        {¶ 10}    Dale appeals from his conviction, raising three assignments of error.

        {¶ 11}   Although not raised by the parties, we recognize that Dale’s sentence for

possession of marijuana was unauthorized by law. This offense was a minor misdemeanor

and was identified as such in the indictment and final judgment. The maximum sentence

for a minor misdemeanor is a fine of $150. Crim.R. 4.1(B); R.C. 2928(A)(2)(v). Dale

was sentenced to five-months in jail and was fined $500. Imposing a sentence that is

unauthorized by law results in an unlawful and void sentence. State v. Barajas-Larios, 178

Ohio App.3d 613, 2008-Ohio-5460, 899 N.E.2d 212, ¶ 18 (2d Dist.). Accordingly, we must

vacate Dale’s sentence for possession of marijuana and remand this count for resentencing.

        {¶ 12}   Turning to Dale’s assignments of error, the second and third assignments of

error state:
[Cite as State v. Dale, 2013-Ohio-2229.]
        APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR

TRIAL WHEN THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE

LAW OF SELF-DEFENSE.

        APPELLANT WAS DENIED HIS CONSTITUTIONALLY GUARANTEED

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL

FAILED TO OBJECT TO THE TRIAL COURT’S INSTRUCTION ON SELF-DEFENSE

AND ALLOWED THE MINOR MISDEMEANOR CHARGE TO BE TRIED TO THE

JURY.

        {¶ 13}     Dale claims that the trial court erroneously instructed the jury with respect

to his alleged duty to retreat before using deadly force in self-defense against Lockwood, and

that counsel was ineffective in failing to object to the court’s jury instructions on

self-defense. Dale also contends that counsel was ineffective in allowing the charge for

possession of marijuana, a minor misdemeanor, to be tried to the jury.

        {¶ 14}      With respect to self-defense, Ohio law provides:

                 Physical force may be used in self-defense, subject to two

        qualifications. First, the defendant cannot have been at fault in creating the

        situation that gave rise to the danger against which he used force to protect

        himself. Second, the defendant must have had reasonable grounds to believe,

        and an honest belief, that such force as was used was necessary to protect

        himself. That second justification differs in its application depending on the

        nature of the force used, whether it was deadly or nondeadly.

State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541, ¶ 18.

        {¶ 15}     “Deadly force” is defined as any force that carries a substantial risk that it
                                                                                                6

will proximately result in the death of any person. R.C. 2901.01(A)(2). The use of a gun

constitutes the use of deadly force. State v. Nelson, 5th Dist. Stark No. 7437, 1988 WL

73499, * 4 (July 11, 1988). Deadly force may be used as a defense against a danger of

death or great bodily harm, but, when deadly force is used, the defendant, in addition to the

other requirements for self-defense, must not have violated any duty to retreat in order to

protect himself from that danger. Kucharski at ¶ 19, citing State v. Robbins, 58 Ohio St.2d

74, 388 N.E.2d 755 (1979). To prove that the duty to retreat was not violated when deadly

force was used, the defendant must show that no means of retreat or avoidance was available

to him and that his only means of escape or avoidance was the deadly force he used. Id. at ¶

20, citing State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978). Implicit in the

retreat requirement is a value judgment that retreat is preferred to a loss of life resulting from

the use of deadly force. Id. at ¶ 19.

       {¶ 16}    The duty to retreat does not apply when one is attacked in one’s home. Id.

at ¶ 20, citing State v. Jackson, 22 Ohio St.3d 281, 490 N.E.2d 893               (1986).    R.C.

2901.09(B), also known as the “castle doctrine,” creates an exception to the general duty to

retreat, and it states in pertinent part that a person who is in his or her own home “has no

duty to retreat before using force in self-defense * * *.”

       {¶ 17}    Similarly, R.C. 2901.05(B)(1) provides that a defendant is entitled to a

presumption of self-defense if the evidence shows that the defendant used defensive force

against another person who was “in the process of unlawfully and without privilege to do so

entering, or ha[d] unlawfully and without privilege to do so entered” the defendant’s

residence. This is a rebuttable presumption and may be rebutted by a preponderance of the
                                                                                            7

evidence that the victim had a right to be in the residence or the defendant was unlawfully in

the residence. R.C. 2901.05(B)(2) and (3); State v. Lewis, 8th Dist. Cuyahoga No. 97211,

2012-Ohio-3684,      ¶ 13; State v. Barnette, 12th Dist. Butler No. CA2012-05-099,

2013-Ohio-990, ¶ 57.

       {¶ 18}    “The difference between the Castle Doctrine and the rebuttable

presumption of self-defense lies in the legal status of the victim.” Lewis at ¶ 18. If the

victim were lawfully in a residence at the time the defendant used deadly force against him

or her, the defendant would not be entitled to the presumption of self-defense. Id. at ¶ 19;

R.C. 2901.05(B)(1)-(2). However, the defendant would be entitled to a castle doctrine

instruction (that he had no duty to retreat from the residence) if he were lawfully occupying

the residence at the time he used the force. Id. It would then still be the defendant’s burden

to prove the remaining elements of self-defense by a preponderance of the evidence. See

State v. Westfall, 9th Dist. Lorain No. 10CA009825, 2011-Ohio-5011, ¶ 19, quoting State v.

Little, 9th Dist. Lorain No. 10CA009758, 2011-Ohio-768, ¶ 23; State v. Bushner, 9th Dist.

Summit No. 26532, 2012-Ohio-5996, ¶ 16.

       {¶ 19}    At Dale’s trial, the court gave the following jury instructions related to

self-defense.

                * * * The defendant claimed to have acted in self-defense.          To

       establish a claim of self-defense, the defendant must prove by a greater

       weight of the evidence that he was not at fault in creating the situation giving

       rise to the shooting incident; and he had reasonable grounds to believe that

       [sic] an honest belief, even if mistaken, that he was in imminent danger of
                                                                                  8

death or great bodily harm; and that his only reasonable means of retreat or

withdraw from such danger was by the use of deadly force; and he had not

violated any duty to retreat or withdraw to avoid the danger.

       Duty to retreat. The defendant had a duty to retreat if he was at fault

in creating the situation giving rise to the shooting incident or did not have

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

danger of death or great bodily harm or that he had a reasonable means of

escape from that danger or other than by the use of deadly force.



       No duty to retreat. The defendant no longer had a duty to retreat if he

retreated or withdrew from the situation or reasonably indicated his intention

to retreat or withdraw from the situation and no longer participated in it; and

he then had reasonable grounds to believe and an honest belief that he was in

imminent danger of death or great bodily harm and the only reasonable means

of escape from that danger was by the use of deadly force, even though he

was mistaken as to the existence of that danger.

       ***

       Self defense, in deciding whether the defendant had reasonable

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

death or great bodily harm, you must put yourself in the position of the

defendant; with his characteristics, his knowledge, or lack of knowledge, and

under the circumstances and conditions that surrounded him at the time.
                                                                                               9

                You must consider the conduct of Jason L. Lockwood and decide

       whether his acts and words caused the defendant reasonabl[y] and honestly to

       believe that he was about to be killed or receive great bodily harm.

       {¶ 20}     Whether Dale, prior to either or both of the shootings, had reasonable

grounds to believe and did in fact believe that he was in imminent danger of death or serious

physical harm under the facts presented in this case was for the jury to determine. If the

jury found such beliefs, it was then to consider whether Dale had violated any duty to retreat

before using deadly force in self-defense. In its jury instructions, the trial court identified a

single situation in which Dale would not have a duty to retreat: where, after retreating or

withdrawing from the situation, or indicating an intention to do so, he still had reasonable

grounds and an honest belief that he was in imminent danger of death or great bodily harm

and that deadly force was the only reasonable means of escape from that danger. The trial

court made no reference to the castle doctrine, whereby in certain circumstances a person is

not required to retreat from or within his or her own home, and that doctrine would seem to

apply in this case. The trial court erred in failing to instruct the jury about the existence of

the castle doctrine as an exception to the duty to retreat.

       {¶ 21}       The facts in Lewis, 8th Dist. Cuyahoga No. 97211, 2012-Ohio-3684, are

similar to the facts in Dale’s case. In Lewis, the defendant and his girlfriend had spent the

night at the defendant’s home, drinking alcohol and smoking crack cocaine.                In the

morning, the defendant told his girlfriend to leave, but she refused, and an argument ensued.

 According to the defendant, the girlfriend retrieved a knife and swung it at him repeatedly,

slashing his shoulder. In his struggle to disarm her, the couple fell to the floor, and the
                                                                                               10

girlfriend was fatally stabbed. The defendant was charged with murder and other offenses.

        {¶ 22}   At trial, the jury was instructed on the elements of self-defense. However,

the trial court’s instructions suggested that the defendant had had a duty to retreat if “he had

a reasonable means of escape * * * other than by the use of deadly force,” and no castle

doctrine instruction was given. The court did instruct on the rebuttable presumption of

self-defense if the evidence showed that the girlfriend was unlawfully in defendant’s home

when she was stabbed. Id. at ¶ 16-17.

        {¶ 23}   Lewis reversed the defendant’s conviction, holding that the jury instructions

had improperly focused on the girlfriend’s legal status, that “this determination was fatal to

defendant’s case,” and that the instruction went “against well-developed jurisprudence

regarding the right to kill in self-defense” and the absence of a duty to retreat when one is

attacked in one’s own home. Id. at ¶ 20. The appellate court concluded that Lewis “did

not receive a fair trial because the jury did not deliberate with a complete set of instructions.”

 Id. at ¶ 23.

        {¶ 24} The State contends that the castle doctrine “does not apply to situations (like

Dale’s) where a party of drunken friends dissolves into an all-out brawl, and subsequently

the resident attacks a guest to forcibly remove him from the premises,” citing State v.

Madera, 8th Dist. Cuyahoga No. 93764, 2010-Ohio-4884.               However, what the Eighth

Appellate District actually stated was that it had “not seen [the castle doctrine] applied

successfully in situations where a party of drunken friends dissolves into an all-out brawl.”

(Emphasis added.) Id. at ¶ 38.

        {¶ 25} In fact, Madera does not discuss the castle doctrine’s effect on a
                                                                                              11

homeowner’s duty to retreat. The central dispute in that case was a factual one: whether the

defendant had ever been lawfully in the house, or whether he had been a trespasser from the

outset. The defendant had attacked a longtime-friend and “frequent guest” with a sword

after the victim and the defendant had argued at the defendant’s home. The defendant

argued that a criminal trespass instruction should have been given to the jury, but the court

of appeals held that the trial court’s instruction on the castle doctrine sufficiently

communicated to the jury that the person against whom force was used must not have been

lawfully on the premises. The defendant in Madera also argued, inaccurately, that the castle

doctrine creates a rebuttable presumption that the drunken friend involved in an altercation

at a home was unlawfully present, but the appellate court did not discuss or adopt this view.

       {¶ 26} Dale claims that trial counsel’s failure to object to this error constituted

ineffective assistance of counsel. We review alleged instances of ineffective assistance of

trial counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To reverse a conviction based

on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell

below an objective standard of reasonableness and that his errors were serious enough to

create a reasonable probability that, but for the errors, the result of the trial would have been

different. Id.

       {¶ 27}    Dale did not dispute that he shot Lockwood; his defense was that he acted

in self-defense. To succeed on his claim of self-defense involving the use of deadly force,

Dale was required to establish, among other things, that he did not violate any duty to retreat.
                                                                                             12

 An instruction on the castle doctrine could have established a critical element of Dale’s

self-defense claim, and there was no strategic basis to omit such an instruction. Thus,

counsel’s conduct fell below an objective standard of reasonableness when he failed to

object to the incomplete jury instruction.

       {¶ 28}    The precise reasons for the jury’s verdict are unknown. Thus, we cannot

find that the failure to instruct pursuant to R.C. 2901.09(B) is plain error; this would require

a determination that “the outcome of the trial would clearly have been otherwise.”

(Emphasis added.) State v. Lang, 129 Ohio St.3d 5513, 2011-Ohio-4215, 954 N.E.2d 596,

¶ 108, citing State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

       {¶ 29} However, with respect to the assignment for ineffective assistance of

counsel, a different analysis is appropriate. The jury may have been unpersuaded that Dale

reasonably and honestly believed he was confronted with an imminent risk of death or

serious harm. Lockwood was unarmed and, although beer bottles were present, no evidence

was presented that Lockwood held one or attempted to grab one for use as a weapon.

Notwithstanding the alleged incident several months earlier in which Lockwood had used a

beer bottle as a weapon, the jury could have reasonably concluded that there was no

evidence to establish such an intention under the facts of this case. The jury also could have

concluded that the “crazed look” in Lockwood’s eyes (as recounted by Dale), without more,

did not justify the use of deadly force. If the jury reached either of these conclusions, it

would not have reached the issue of Dale’s duty to retreat, and the incomplete jury

instruction would have been harmless. On the other hand, based on the instructions the jury

was given, it may have concluded that Dale violated a duty to retreat before using deadly
                                                                                            13

force. Because we do not know the basis for the jury’s verdict, we conclude that there was

a reasonable probability that, but for the incomplete jury instruction, the outcome of the case

would have been different, i.e., the jury might reasonably have found that Dale acted in

self-defense. Thus, Dale’s conviction for felonious assault will be reversed.

        {¶ 30}   Dale also contends that trial counsel was ineffective in allowing the count

of possession of marijuana to be tried to the jury. He claims that the presentation of this

evidence to the jury was prejudicial to him with respect to the more serious charges.

        {¶ 31}   We note that, because the possession offense was a minor misdemeanor,

Dale did not have a right to a jury trial on that count. In this respect, the consolidation of

the offenses for trial enabled Dale to have the matter determined by a jury, when he would

not have otherwise had such a right.          However, the count of possession could have

simultaneously been tried to the court.

        {¶ 32}   Because our resolution of Dale’s argument regarding the jury instructions

will result in the reversal of his conviction for the count of felonious assault, Dale has

suffered no prejudice with respect to that count. Dale’s possession and/or use of marijuana

was directly relevant to the count of using a weapon while intoxicated, and would have been

admissible at a separate trial on that count. Accordingly, Dale suffered no prejudice as a

result of counsel’s alleged ineffectiveness in allowing the minor misdemeanor possession of

marijuana to be heard by the jury, and he was not denied the effective assistance of counsel

on this issue.

        {¶ 33}   The second assignment of error is sustained. The third assignment of error

is sustained in part and overruled in part.
                                                                                         14

       {¶ 34}    Dale’s first assignment of error states:

                APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

       A FAIR AND IMPARTIAL JURY WHEN THE TRIAL COURT

       ALLOWED ALL PROSPECTIVE JURORS TO HEAR DETAILED

       OPENING STATEMENTS BEFORE THE COMPLETION OF THE VOIR

       DIRE PROCESS AND THE SELECTION OF THE JURY.

       {¶ 35}    Dale contends that the procedure employed by the trial court in this case,

whereby the potential jurors heard the opening statements of the parties before jurors were

actually seated, prejudiced him by “harden[ing]” their positions before biases were exposed,

and deprived him of his right to an impartial jury.

       {¶ 36}    After some preliminary comments, questions, and instructions by the court,

the court explained the procedure it intended to follow:

                Little over five years ago the Ohio Supreme Court and the state

       legislature came to the belief that some changes would be appropriate in the

       jury process. And this Court was one of the approximately 40 courts that

       volunteered to serve – pardon the very bad pun – on a trial basis to try out

       some of these suggested changes and to see how they would work with

       prospective jurors and with actual jurors. Once that process of testing ideas

       was complete, then legislation was passed that put into effect some of those

       changes. Before that – we are about to have an example of one of those

       changes – before those changes were made, opening statements were

       delivered after the jury was selected. So [the] only people that heard the
                                                                                               15

        opening statement were the 12 jurors and the alternate. We believe that it’s

        fair for all of you to hear the opening statements of the lawyers. You’ve

        taken your time to be here. We think you should know what kind of case

        you’re being considered for even though you may not eventually serve on the

        jury.

                  Another reason for giving these opening statements is that it might

        help you be better prepared for questions that will be asked of you either

        individually or as a group during the jury selection process.

The court then instructed the jury that the opening statements were not evidence, but the

lawyers’ views of what the evidence will show.

        {¶ 37}     Both parties presented opening statements, and neither party objected on

the record to this manner of proceeding with the jury selection.        Dale makes no specific

argument as to how the presentation of both parties’ versions of events hardened the

potential jurors as to a particular version or made it impossible to thereafter identify potential

jurors’ biases.

        {¶ 38}     We have previously addressed the issue of prejudice arising from a

variation in the customary sequence of voir dire questioning and opening statements. See

State v. Walker, 2d Dist. Clark No. 08-CA-32, 2009-Ohio-1936, ¶ 16-25. We found that a

presumption of prejudice from such a manner of proceeding would be “speculative at best,”

particularly where, as here, the defendant failed to challenge the procedure in the trial court

and, in so doing, deprived the trial court the opportunity to revert to the customary

procedure. Id. at ¶ 24. On this record, as in Walker, there is no basis for us to conclude
                                                                                               16

that Dale was prejudiced by the manner in which the trial court handled voir dire.

       {¶ 39}    The first assignment of error is overruled.

       {¶ 40}    The judgment of the trial court will be reversed and remanded insofar as it

convicted Dale of felonious assault, due to the incomplete jury instructions on that count and

counsel’s ineffectiveness in addressing that error. The judgment of the trial court will be

affirmed with respect to Dale’s convictions for using a weapon while intoxicated and

possession of marijuana, but his sentence on possession of marijuana will be vacated, and

we will remand that count for resentencing.

                                          ..........

FAIN, P.J., concurs.

HALL, J., concurring:

       {¶ 41}    I agree that it was not plain error to fail to instruct on the R.C. 2901.05(B)

presumption that force used against an intruder in one’s home is self-defense. But I hold that

belief because that statute applies to force against intruders, not household guests. Therefore,

on the facts of this case, the failure to instruct was not error, and therefore not plain error. I

also agree that the trial court erred in instructing the jury on a duty to retreat without

including the castle-doctrine exception now codified in R.C. 2901.09 (providing that “a

person who lawfully is in that person’s residence has no duty to retreat before using force in

self-defense”). Moreover, I conclude that the instruction given, O.J.I. 421.19, is wrong,

inadequate, and the result of circular reasoning. As I will attempt to explain, however, the

incorrect instruction given, if followed with precision, did not prejudice the defendant and,

therefore, did not constitute plain error.       Furthermore, I agree that the trial court’s
                                                                                           17

duty-to-retreat instruction, which was complicated by an instruction about how one can

revive a right to self-defense after he has retreated, creates a reasonable probability of a

different outcome with proper instructions, thereby establishing ineffective assistance of

counsel under Strickland v. Washington. Finally, I agree that the misdemeanor marijuana

sentence was improper, requiring a remand for resentencing.

       {¶ 42}    The castle doctrine has been passed down from English common law.

Almost a century ago, then Judge Cardozo wrote:

                * * * It is not now and never has been the law that a man assailed in

       his own dwelling is bound to retreat. If assailed there, he may stand his

       ground and resist the attack. He is under no duty to take to the fields and the

       highways, a fugitive from his own home. More than 200 years ago it was

       [said] by Lord Chief Justice Hale (1 Hale’s Pleas of the Crown, 486): In case

       a man “is assailed in his own house, he need not flee as far as he can, as in

       other cases of se defendendo, for he hath the protection of his house to excuse

       him from flying, as that would be to give up the protection of his house to his

       adversary by flight.” Flight is for sanctuary and shelter, and shelter, if not

       sanctuary, is in the home.

People v. Tomlins, 213 N.Y. 240, 243, 107 N. E. 496, 497 (1914).

       {¶ 43}    Ohio has two statutes on the subject. The first, R.C. 2901.09, codifies the

doctrine itself. The second, R.C. 2901.05(B), creates a rebuttable presumption that use of

force against one who is “in the process of unlawfully * * * entering, or has unlawfully * * *

so entered” one’s home (or vehicle) is presumed to have been in self defense (or defense of
                                                                                            18

another). In this case, the victim was a friend, co-worker, and invited guest to a party at the

defendant’s home. Therefore, the statutory presumption related to the castle doctrine does

not apply. Because it does not apply, failure to give an instruction consistent with R.C.

2901.05(B) cannot be error.

       {¶ 44}    A more delicate question is whether the duty-to-retreat instruction given by

the trial court amounts to plain error. Initially, applicability of the common-law lack of duty

to retreat does not depend on whether force is used against an intruder, guest, or even a

co-occupant. “There is no duty to retreat from one's own home before resorting to lethal

force in self-defense against a cohabitant with an equal right to be in the home.” State v.

Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997) at syllabus. If there is no duty to retreat

from attack by a cohabitant, then there cannot be a duty to retreat from a person of lesser

status in the home. Similarly, the castle-doctrine statute, R.C. 2901.09, which plainly states

there is no duty to retreat from one’s residence, is not limited to force against intruders.

Nevertheless, the duty to retreat is not unlimited. Indeed, we have stated the following:

                A person who, through no fault of her own, is assaulted in her own

       home may stand her ground, meet force with force, and, if necessary, kill her

       assailant, without any duty to retreat. Thomas, 77 Ohio St.3d at 327, 673

       N.E.2d 1339. However, if defendant was at fault in creating the situation that

       gave rise to the shooting of Jeffrey Stephens, then she had a duty to retreat

       even though the incident occurred inside her own home. State v. Franklin,

       Summit App. No. 22771, 2006-Ohio-4569, 2006 WL 2547959; Thomas.

State v. Powell, 176 Ohio App.3d 28, 2008-Ohio-1316, 889 N.E.2d 1047, ¶ 21 (2d Dist.).
[Cite as State v. Dale, 2013-Ohio-2229.]
        {¶ 45}     The duty to retreat ordinarily applies only when a defender is about to resort

to deadly force. The logic is that it is better to escape or walk away from a confrontation than

to kill an assailant. State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541,

¶19 (“Implicit in the retreat requirement is a value judgment that retreat is preferred to a loss

of life resulting from the use of deadly force.”). The standard jury instruction regarding a

duty to retreat is found at O.J.I. 421.19. The trial court’s instruction below mirrored that

pattern instruction. But it is wrong. The three parts of the instruction are cumulative. A

defendant must prove all three. For ease of discussion, I have shortened the elements. To

prove self defense, a defendant first must prove (a) that he was not at fault and (b) that he

reasonably believed he was in grave danger and deadly force was reasonable. So far, so

good. The final part of the pattern instruction requires a defendant to prove (c) that he did

not violate a duty to retreat. To find a duty to retreat, however, a jury must find either that a

defendant was at fault or that he was unreasonable. But these inquiries involve

determinations that a jury already will have made under (a) and (b) above. If a jury had

found that a defendant was at fault or was unreasonable, he could not rely on self defense

anyway. In that situation, the jury never would reach the duty-to-retreat issue. Conversely, if

a jury found that a defendant was not at fault and was reasonable, it could not logically

change its mind and reach a contrary conclusion on the duty-to-retreat issue. Thus, as the

pattern instruction is worded, there never will be a duty to retreat. A jury’s findings on parts

(a) and (b) of the self-defense instruction will determine the applicability of the defense. The

instruction regarding a duty to retreat is wrong and is the result of circular reasoning.

        {¶ 46}     The duty-to-retreat instruction should more clearly explain that a person

cannot employ deadly force if he knows he can avoid such force by using a readily available,
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completely safe means of retreat or escape.1 Conversely, when in one’s home, where there is

no duty to retreat, O.J.I. 421.19(2)(B) should be modified to eliminate the language

providing that the “only reasonable means of (retreat) (escape) (withdrawal) from such

danger was by the use of deadly force.” This language improperly implies that there is a duty

to retreat in one’s home.

          {¶ 47}     Because a logical analysis of the inaccurate O.J.I. duty-to-retreat instruction

leads me to the inescapable conclusion that if self defense is applicable there is never a duty

to retreat, the defendant was not prejudiced by the superfluous duty-to-retreat instruction.

Without prejudice, I cannot say that the trial court’s retreat instruction amounted to plain

error.

          {¶ 48}     A different analysis is required, however, when considering the

ineffective-assistance-of-counsel claim. There, if a reasonable probability of a different

result is evident, then the conviction should be reversed. In this case, where there was no

duty to retreat, the jury was exposed to the concept of a duty to retreat three times in the

instructions. First, in the O.J.I. 421.19(2)(B) instruction, the trial court stated, “* * * and

that his only means of retreat or withdraw (sic) from such danger was by the use of deadly

force.”     As indicated, this suggests there was a duty to retreat. Second, the actual

duty-to-retreat instruction was given. Third, the follow-up instruction was given about when

a defendant, having once retreated, could revive the applicability of self defense. This

unnecessarily and erroneously injected issues for the jury to consider which were not

applicable. On balance, consistent with the result reached by my colleagues, I find a

            1
             See, for example, Connecticut Criminal Jury Instructions § 2.8-3(A) “Duty to retreat § 53a-19 (b) (1).”
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reasonable probability that the result would have been different if the jury properly had been

instructed that the defendant had no duty to retreat in his home, thereby eliminating the duty

to retreat instruction entirely. On this issue, I join in the reversal and would remand for

further proceedings.

       {¶ 49}    Finally, I agree that the misdemeanor possession of marijuana sentence

must be vacated and that count should be remanded for resentencing.

                                         ..........

Copies mailed to:

Kevin S. Talebi
Marshall G. Lachman
Hon. Nick A. Selvaggio
