[Cite as State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407.]




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



THE STATE OF OHIO,                                                  CASE NO. 1-09-65

   APPELLEE,

  v.

BELANGER,                                                             OPINION

   APPELLANT.



                           Appeal from Lima Municipal Court
                             Trial Court No. 09 CRB02485

                      Judgment Reversed and Cause Remanded

                          Date of Decision: November 8, 2010




APPEARANCES:

        David M. Geiger, for appellee.

        Clayton P. Osting, for appellant.



        WILLAMOWSKI, Presiding Judge.
Case No. 1-09-65


      {¶ 1} Defendant-appellant, Philip T. Belanger, brings this appeal from the

judgment of the Lima Municipal Court finding him guilty of domestic violence, in

violation of R.C. 2919.25(A). For the reasons set forth below, the judgment is

reversed.

      {¶ 2} On August 5, 2009, a complaint was filed in the trial court alleging

that Belanger had committed domestic violence against his live-in girlfriend on

August 4, 2009. Belanger entered a plea of not guilty to the complaint. A jury

trial was held on October 29, 2009. The jury returned a verdict of guilty. On

November 23, 2009, Belanger was sentenced to 180 days in jail with 150 days

suspended, a $250 fine, and two years of community control. Belanger now

appeals from his conviction and raises the following assignments of error.

                             First Assignment of Error

              The trial court erred to the prejudice of [Belanger] by denying
       his motion for a jury instruction on self defense which is an
       affirmative defense to the crime charged. In addition, the failure of
       the trial court to give this proper charge denies [Belanger] federal
       and state due process.

                           Second Assignment of Error

             The trial court erred to the prejudice of [Belanger] by denying
       his motion for a continuance.

                            Third Assignment of Error

             The trial court erred to the prejudice of [Belanger] by denying
       him the right to present the evidence of witnesses as to his character,
       demeanor, disposition, etc.



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       {¶ 3} Belanger’s first assignment of error alleges that the trial court erred

by not instructing the jury on the affirmative defense of self-defense.            “In

charging the jury, the court must state to it all matters of law necessary for the

information of the jury in giving its verdict.” R.C. 2945.11. Parties may request

that the trial court instruct the jury on a particular matter.       Crim.R. 30(A).

However, a trial court may omit any requested instructions that are not correct

statements of the law and applicable to the case before it. State v. Scott (1986), 26

Ohio St.3d 92, 497 N.E.2d 55.

              A trial court is not required to instruct the jury on self-defense
       in every case where it is attempted to be presented. The defendant
       must first present sufficient evidence at trial to warrant such an
       instruction. In State v. Robinson (1976), 47 Ohio St.2d 103, 351
       N.E.2d 88, the court stated * * *:

       “* * * In order to raise an affirmative defense, which is now
       statutorily defined as either ‘a defense expressly designated as
       affirmative’ or ‘a defense involving an excuse or justification
       peculiarly within the knowledge of the accused, on which he can
       fairly be required to adduce supporting evidence’ (R.C. Section
       2901.04[C]), evidence of a nature and quality sufficient to raise the
       issue must be introduced, from whatever source the evidence may
       come. The procedural steps to be taken by the trial court are well
       stated in State v. Millett [(1971 Me.), 273 A.2d 508]:

       “‘* * * When such evidence is forthcoming the trial court must first,
       viewing that evidence in the light most favorable to the defendant,
       determine whether or not it is adequate to raise the self-defense
       issue, and, if believed, would under the legal tests applied to a claim
       of self-defense permit a reasonable doubt as to guilt, stemming from
       that claim to arise. * * * If the evidence adduced, so viewed, is
       legally insufficient to raise the issue, the trial court will have no
       occasion or obligation to instruct the jury on the elements essential



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       to a valid claim of self-defense, but rather will remove the issue of
       self-defense from jury consideration.’” (Emphasis added.)

Bucyrus v. Fawley (1988), 50 Ohio App.3d 25, 26-27, 552 N.E.2d 676. The

requested instruction for self-defense is as follows:

       SELF-DEFENSE. The defendant claims to have acted in self-
       defense. To establish that he/she 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/she was not at fault in creating the situation giving rise to
       (describe the event in which the use of non-deadly force occurred);
       and

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

4 Ohio Jury Instructions (2010), Section 421.21.

       {¶ 4} To establish a claim of self-defense, a defendant must show that (1)

he was not at fault in creating the situation giving rise to the event, (2) he had a

bona fide belief that he was in imminent danger of bodily harm, and (3) he did not

violate any duty to retreat or avoid the danger. State v. Melchior (1978), 56 Ohio

St.2d 15, 381 N.E.2d 195. See also State v. Thomas (1997), 77 Ohio St.3d 323,

673 N.E.2d 1339; State v. Williford (1990), 49 Ohio St.3d 247, 551 N.E.2d 1279;

State v. Jackson (1986), 22 Ohio St.3d 281, 490 N.E.2d 893; and State v. Robbins

(1979), 58 Ohio St.2d 74, 388 N.E.2d 755. The degree of force one may use to

defend oneself depends upon what is reasonably necessary to protect that

individual from the imminent use of unlawful force. Akron v. Dokes (1986), 31


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Ohio App.3d 24, 507 N.E.2d 1158. In instances where less than deadly force is

used, the defendant need only show a fear of bodily harm, not of death or great

bodily harm. State v. Perez (1991), 72 Ohio App.3d 468, 594 N.E.2d 1041.

“Since there is no duty to retreat in a case involving nondeadly force, the accused

must simply satisfy the two remaining elements of a valid self-defense claim, to

wit: he was not at fault in creating the situation, and he had a genuine belief that

he was in imminent danger of bodily harm.” State v. Johnson, 11th Dist. No.

2005-L-103, 2006-Ohio-2380, ¶21. Since self-defense is an affirmative defense,

the defendant bears the burden of proving it by a preponderance of the evidence.

Williford. A defendant has met his burden of production on the defense when he

introduces sufficient evidence, which, if believed, would raise a question in the

mind of a reasonable juror concerning the issue. Robbins. “The inquiry into

whether a defendant has introduced sufficient evidence to raise an affirmative

defense under R.C. 2901.05 is a question of law.” Johnson at ¶24. Thus, an

appellate court uses a de novo standard of review on appeal. Id.

       {¶ 5} In this case, the victim testified that the two were involved in a

verbal dispute and that Belanger had grabbed her by the neck. She testified that

Belanger then struck her on the left side of the face, causing her to fall and strike

her right eye. Belanger denied these accusations. He admits that they were

having an argument. He testified that the victim turned and struck him in his

injured shoulder, causing him pain. He further testified that he pushed the victim


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away, causing her to fall, because he did not want to be struck again. Belanger

also provided an explanation about how the marks on the victim’s neck could

have occurred. Since Belanger used less than deadly force, he had no duty to

retreat and only needed to show that he was not the aggressor and that he feared

further bodily harm.

       {¶ 6} In determining whether a jury instruction on an affirmative defense

should be given, the court must view the evidence in a light most favorable to the

defendant. The question of credibility is not to be considered. Belanger testified

that the victim was the aggressor, i.e., that she struck him first, and that he was in

fear of being struck again. Although the state argues that his testimony was not

credible, that would be an issue for the jury to determine. Belanger met his

burden of production when his testimony, if believed, would raise the question of

self-defense in the mind of a reasonable juror. Thus, the first assignment of error

is sustained.

       {¶ 7} Having found prejudicial error in the denial of a self-defense

instruction to the jury, the second and third assignments of error are moot. Thus,

they will not be addressed.

       {¶ 8} The judgment of the Lima Municipal Court is reversed, and the

matter is remanded for further proceedings.

                                                                  Judgment reversed
                                                                and cause remanded.



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Case No. 1-09-65


       ROGERS, J., concurs.

       SHAW, J., dissents.

                              __________________

       SHAW, Judge, dissenting.

       {¶ 9} I respectfully dissent from the majority decision to reverse this case

based on the trial court’s failure to instruct the jury on self-defense. The majority

correctly states that a trial court may omit any requested instructions that are not

correct statements of the law and applicable to the case before it. State v. Scott

(1986), 26 Ohio St.3d 92. Further, as noted by the majority, “‘[i]n order * * * to

successfully raise an affirmative defense * * * evidence of a nature and quality

sufficient to raise the issue must be introduced, from whatever source the

evidence may come.’” State v. Melchior (1978), 56 Ohio St.2d 15, 20, quoting

State v. Robinson (1976), 47 Ohio St.2d 103, 111-112, 351 N.E.2d 88. The court

in Melchior also stated that “[e]vidence is sufficient where a reasonable doubt of

guilt has arisen based upon a claim of self-defense. * * * If the evidence generates

only a mere speculation or possible doubt, such evidence is insufficient to raise

the affirmative defense, and submission of the issue to the jury will be

unwarranted.” (Emphasis added.) Id. at 20.

       {¶ 10} At trial, Belanger requested an instruction on the affirmative

defense of self-defense, which required him to show, inter alia, that he had a bona

fide belief that he was in imminent danger of bodily harm. See Melchior, 56 Ohio


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St.2d at 20-21. The majority found that Belanger testified that the victim hit him

in his injured shoulder, causing him pain, during an argument the two were

having. The majority then states that Belanger “testified that he pushed the victim

away, causing her to fall, because he did not want to be struck again” and that he

provided an explanation about how the marks on the victim’s neck could have

occurred.    Thus, the majority concludes that Belanger met his burden of

production to raise the question of self-defense, which would warrant such an

instruction to the jury. I disagree.

       {¶ 11} Contrary to the majority’s view of the evidence, a review of the

record reveals that the only testimony Belanger gave regarding a bona fide belief

that he was in imminent danger of bodily harm was during his direct examination

by defense counsel:

       Q: And did you, uh, were you concerned if she hit you a second time
       that you’d be injured?

       A: More than likely, but, you know.

No question was asked and no testimony was given by Belanger that relayed that

he did not want to be struck again, that he feared that he would be struck again, or

in any other way that he had a bona fide belief that he was in imminent danger of

bodily harm. The record is devoid of any evidence that the victim made any

further movements towards Belanger or that he even had a belief that she was

going to harm him again.         The question posed by defense counsel was a



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hypothetical: “Were you concerned that if she hit you a second time you would be

injured?” The question was not “were you concerned that she would hit you a

second time?”

       {¶ 12} More importantly, Belanger never testified that he knowingly acted

to defend himself and in fact, seemed to carefully avoid any implication of

deliberate conduct on his part. On the contrary, Belanger’s testimony about what

happened was more akin to a defense of accident, i.e., he seemed to emphasize

that he did not “knowingly” cause or attempt to cause physical harm to anyone.

       {¶ 13} Specifically, Belanger testified that he was trying to explain to the

victim, his live-in girlfriend, that he was concerned for her safety due to an

incident that happened earlier that day and that someone might harm her because

of her relationship to him. The argument became more heated, according to

Belanger, because the victim repeatedly told him that she did not care. Belanger

explained that he “was wanting to talk to her and then [he] got hit” by the victim

in his right shoulder, which hurt because of a previous injury he had. Belanger

further stated:

       It happened so quick, the only thing I can think of is that I pushed
       her like that and when she was in her stocking feet on a linoleum
       floor that’s when she fell, her feet had kicked mine out from me and
       we landed up on top of each other. All I could remember her saying
       is, “ow, my eye,” so I don’t know if she hit it on the counter, the
       drawer that was open or on the floor.

       ***



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       The fridge stopped me from falling and, then, I came back up, it just
       happened so quick. I pushed her, my hand may have gone up,
       caught her neck but she went down, her feet kicked my feet out and
       we both landed on the floor on top of each other.

       {¶ 14} Nothing in this testimony indicated that Belanger believed that he

was knowingly defending himself from imminent bodily harm rather than merely

reacting to the harm previously inflicted upon him and accidentally falling on the

victim in some kind of mutual pushing incident. Thus, I do not find that Belanger

presented sufficient evidence to create a reasonable doubt of guilt based upon any

of the essential elements necessary for a claim of self-defense. At most, his

testimony generated only a mere speculation or possible doubt. As previously

noted, such evidence is insufficient to raise or establish this affirmative defense.

       {¶ 15} For all of these reasons, I would conclude that the trial court did not

err in overruling Belanger’s request to submit this issue to the jury. Accordingly,

I would affirm the judgment of the trial court.




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