[Cite as Parma v. Treanor, 2018-Ohio-3166.]


                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106275



                                          CITY OF PARMA

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       DANIEL J. TREANOR

                                                      DEFENDANT-APPELLANT




                                         JUDGMENT:
                                   REVERSED AND REMANDED



                                      Criminal Appeal from the
                                       Parma Municipal Court
                                      Case No. 2016 CRB 05143

        BEFORE: Keough, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: August 9, 2018
ATTORNEYS FOR APPELLANT

David M. Leneghan
K. Scott Carter
200 Treeworth Blvd., Suite 200
Broadview Heights, Ohio 44147


ATTORNEY FOR APPELLEE

John L. Reulbach
14701 Detroit Avenue, Suite 575
Lakewood, Ohio 44107
KATHLEEN ANN KEOUGH, J.:

         {¶1} Defendant-appellant, Daniel Treanor, appeals his convictions for aggravated

menacing and domestic violence. Finding merit to the appeal, we reverse and remand for a new

trial.

         {¶2} In December 2016, Treanor was charged with two counts of aggravated menacing in

violation of Parma Codified Ordinances 636.04 and one count of domestic violence in violation

of R.C. 2919.25(C). The matter proceeded to a jury trial where the following evidence was

presented.

         {¶3} Treanor’s son, Seth Treanor (“Seth”), testified that during the late hours of

December 11, 2016, he received a call from his sister, who was upset and intoxicated, claiming

that their father was threatening to kill himself. Although Seth and his father had a distant

relationship, he agreed to check on their dad. Because he himself had been drinking, his friend

Andrew Block (“Andrew”)           drove him to Treanor’s house; their other friend Caitlin

accompanied him as well. Both Seth and Andrew entered the home; Andrew waited in the

kitchen while Seth entered the living room, finding Treanor asleep on the couch. Located

nearby were empty beer cans and a loaded firearm. Seth testified that he removed the clip from

the firearm and placed it in the kitchen.

         {¶4} When Seth returned to the living room, he awoke Treanor. He admittedly “came

off aggressive,” and “laid into” Treanor because he was frustrated about Treanor’s drinking and

having to check on him. Seth told Treanor that he was there to check on him because he had

been told that Treanor was threatening suicide. Seth testified that a heated argument ensued
between them that lasted 15 to 20 minutes. As he was yelling and pointing at the beer cans, one

of Seth’s fingers was sliced open when it went inside the opening of one of the cans. With his

finger bleeding profusely, Seth went into the kitchen with Treanor following. As Treanor

entered the kitchen, he discovered Andrew (a stranger to him) waiting there. According to Seth,

Treanor “freaked out,” questioning who Andrew was.           Seth stated that Treanor grabbed a

firearm, loaded it, and threatened to shoot them if they did not leave. Seth stated that the gun

was pointed at him, and maybe Andrew. Seth testified that Andrew immediately left. He said

he felt threatened and scared, so he called the police once he exited the house. He testified that

no one threatened Treanor.

       {¶5} Seth testified that his sister came over to his house after he returned home. The

police were eventually called because he and his sister “got into it.” According to Seth, he

accidentally slammed the door on his sister’s finger, causing her fingertip to become severed.

       {¶6} Seth admitted that he and Treanor had problems in the past and had not spoken in

months. Seth had previously accused Treanor of “stealing” Seth’s mother’s house, and was

upset that Treanor fixed a car belonging to one of Seth’s ex-girlfriends. He also admitted that he

previously called Treanor “a piece of s***” and “wished he died in a motorcycle accident.” He

further admitted that he was not invited to his father’s house, but felt the lack of invitation did

not prevent him from checking on him. He admitted he escalated the situation by being verbally

aggressive toward Treanor, and that despite his aggressive behavior, Treanor did not threaten

anyone until Treanor discovered Andrew, a stranger, standing in his kitchen.           He further

admitted that once he discovered that Treanor was okay, he did not leave; rather, he became

verbally aggressive and “lit into” him, causing the situation that occurred. However, he denied
that he told Treanor to “go ahead and kill [him]self,” threw any of Treanor’s items, was asked to

leave at any time prior to Treanor retrieving the gun, or told Andrew not to leave the house.

       {¶7} Andrew testified that Seth told him that Treanor was less likely to “try something” if

someone else was there. When they arrived at Treanor’s house, Andrew saw Treanor sleeping

on the couch with beer cans and a firearm on the table. He stayed in the kitchen while Seth

confronted Treanor. He said that no one physically or verbally threatened anyone at that time,

but that the situation changed after Seth cut his finger and Treanor discovered Andrew’s

presence. Andrew testified that Seth told Treanor that Andrew was a friend, but when Treanor

introduced himself and tried to shake Andrew’s hand, Seth told Andrew that he did not have to

shake Treanor’s hand, so he did not do so. Treanor then asked why Andrew was in the house.

According to Andrew, Treanor told him to leave, but Seth told Andrew he did not have to leave.

At that point, Treanor got his gun, and told them to “get out” or he would shoot him. Andrew

testified that Treanor did not point the gun at either him or Seth, but rather pointed the gun in the

air. Andrew admitted that Treanor gave him an opportunity to leave before he retrieved the gun.

 He further admitted he did not feel threatened until Treanor got the gun, but once Treanor had

the gun and made the statements, he felt threatened with serious physical harm.

       {¶8} Treanor testified in his defense. He stated that he was startled awake by his son

screaming at him. He noticed that Seth was drunk. He said that during the altercation, Seth

became volatile and started throwing things, including a gun case that broke against the

aquarium. As the situation escalated and Treanor believed a physical altercation would ensue,

he told Seth to leave at least three times. Seth became more angry and aggressively approached

Treanor. When Seth cut his finger and went into the kitchen, Treanor followed him because he

thought Seth was leaving. When Treanor turned on the light, he was startled by a stranger who
was standing in his kitchen. Treanor told both Seth and the stranger to leave. Treanor testified

that when Andrew refused to leave, he felt threatened and went back to the living room, picked

up his gun, and told them “to get the f*** out.” He denied pointing the gun at anyone or

threatening to shoot them. According to Treanor, Andrew left immediately, and Seth left shortly

thereafter.

        {¶9} Treanor testified that Seth knew he was not allowed to be in his home. He said that

prior to this altercation, the last time he saw Seth was six or eight months ago. Treanor stated

that Seth had previously stolen from him and been abusive toward him. He testified that based

on the history between the two, Seth’s intoxicated state, the aggression Seth showed, the

presence of a stranger in his house, and their refusal to leave, he felt threatened with serious

physical harm, causing him to retrieve his firearm and order Seth and Andrew to leave.

        {¶10} At the close of the evidence, Treanor requested that the jury be instructed on

self-defense and the castle doctrine. The city objected and the trial court denied Treanor’s

request. During closing arguments, the city reminded the jury that Treanor “wasn’t justified

doing what he did. It wasn’t a self-defense situation, you didn’t hear a self-defense argument *

* *.” (Tr. 190.) The jury found Treanor guilty of all charges and the following sentence was

imposed:

        CT 1 [aggravated menacing]: Jail: 120 Days; 0 Days Jail suspended; 1 Day Jail
        Credit. 89 days deferred to Review 02/26/18 at 9:30 a.m.
        Fine: $500 and costs; $350 of fine suspended. Time to Pay.
        Defendant is to serve 30 days of House Arrest with SCRAM with release for all
        employment; church services, Probation Reporting; 1-4 hour per week for
        necessaries and all medical, dental, AA, if any. Stay of execution to 9/11/17.

        CT 2 [aggravated menacing]: Jail: 60 Days; 0 Days Jail Suspended; 60 Days
        Jail Deferred to Review on 02/26/18 at 9:30 a.m.
        Fine: $500, and costs; $400 of fine suspended.

        CT 3 [domestic violence]: Jail: 30 days; 29 Days Jail suspended; 1 Day Jail Credit
       Fine: $250, and Costs; $250 of fine suspended.

       {¶11} Treanor was also ordered to serve two years of probation, with nine months of

reporting probation. In addition to all other standard rules of probation, Treanor was required to

successfully complete a drug and alcohol assessment and anger management.

       {¶12} Treanor now appeals, raising two assignments of error.

       {¶13} At trial, Treanor requested that the jury be instructed on self-defense and the castle

doctrine.   The city objected.     Following oral arguments, the trial court denied the request

because the evidence showed that Treanor only threatened to use force — he did not actually

discharge the firearm or use force.        Therefore, according to the trial court, the requested

instructions were not applicable. In his first assignment of error, Treanor contends that the trial

court erred in failing to give the jury the requested instructions.

       {¶14} When reviewing a refusal to give a requested jury instruction, an appellate court

considers whether the trial court’s refusal 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).

       {¶15} It is well settled in this district that self-defense and the castle doctrine are

affirmative defenses to offenses where the threat of harm is an element of the offense. See, e.g.,

State v. Chopak, 8th Dist. Cuyahoga No. 96947, 2012-Ohio-1537, ¶ 11 (aggravated menacing);

see also State v. Edwards, 1st Dist. Hamilton No. C-110773, 2013-Ohio-239; State v. Ludt, 180

Ohio App.3d 672, 2009-Ohio-416, 906 N.E.2d 1182 (7th Dist.); State v. Russell, 12th Dist.

Warren Nos. CA2011-06-058 and CA2011-09-097, 2012-Ohio-1127; State v. Moreland, 2d Dist.

Montgomery No. 26155, 2015-Ohio-448.

       {¶16} Accordingly, the trial court was incorrect in concluding that jury instructions on

self-defense and the castle doctrine are not applicable as an affirmative defense when only a
threat of force is used. These defenses would be available to Treanor if sufficient evidence was

presented to warrant the instructions.

       {¶17} The city maintains that even if the trial court erred, it was harmless because

Treanor did not satisfy his burden in proving self-defense or that the castle doctrine applied.

Whether the jury would believe Treanor’s testimony and find that he acted in self-defense is not

for this court to consider. State v. Abner, 55 Ohio St.2d 251, 379 N.E.2d 228 (1978) (evidence

was presented at trial to support a claim of self-defense; whether the defendant acted in

self-defense is a factual matter for the jury to determine). Accordingly, the issue before this

court is whether the jury should have received instructions pertaining to self-defense and the

castle doctrine for consideration during its deliberations.

       {¶18} “[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 contains 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, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).

However, the trial court should not instruct the jury where there is no evidence to support an

issue. State v. Williams, 8th Dist. Cuyahoga No. 95748, 2011-Ohio-5385, ¶ 32, citing Riley v.

Cincinnati, 46 Ohio St.2d 287, 348 N.E.2d 135 (1976); Murphy v. Carrollton Mfg. Co., 61 Ohio

St.3d 585, 591, 575 N.E.2d 828 (1991).

       {¶19} In determining whether a defendant has introduced sufficient evidence to warrant a

jury instruction on self-defense, “the test to be applied is whether the defendant has introduced
evidence that, if believed, is sufficient to raise a question in the minds of reasonable persons

concerning the existence of the offense,” State v. Ford, 12th Dist. Butler No. CA2009-01-039,

2009-Ohio-6046, ¶ 19, because proof of an affirmative defense creates reasonable doubt of a

defendant’s guilt. State v. Gillespie, 172 Ohio App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870, ¶

13 (2d Dist.). In order to properly 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, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978); State v. Fulmer, 117 Ohio St.3d

319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. The trial court should view this evidence in the

light most favorable to the defendant. State v. Stephens, 8th Dist. Cuyahoga No. 102660,

2016-Ohio-384, ¶ 19, citing State v. Robinson, 47 Ohio St.2d 103, 112, 351 N.E.2d 88 (1976).

       {¶20} Regarding self-defense, a person is privileged to use only that force that is

reasonably necessary to repel the attack. State v. Williford, 49 Ohio St.3d 247, 249-250, 551

N.E.2d 1279 (1990). The law of self-defense distinguishes between the use of deadly force and

nondeadly force. State v. Miller, 149 Ohio App.3d 782, 2002-Ohio-5812, 778 N.E.2d 1103, ¶6

(1st Dist.). “Deadly force” is defined as “any force that carries a substantial risk that it will

proximately result in the death of any person.” Id., citing R.C. 2901.01(A)(2); R.C. 2923.11(A)

(“deadly weapon” means any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon).

       {¶21} In this case, Treanor testified that he grabbed his gun and told Seth and Andrew “to

get the f — out” of his house. He denied pointing the gun at anyone or threatening to shoot

them with it. However, both Seth and Andrew testified that Treanor threatened to shoot them if

they did not leave.    Treanor did not discharge the firearm, and conflicting evidence was

presented by the state’s witnesses as to whether Treanor actually pointed the firearm at either
Seth or Andrew. Andrew testified that Treanor did not point the gun at anyone, but rather

pointed the gun in the air while telling them he would shoot them if they did not leave his house.

Andrew further admitted that Treanor told him to leave before he retrieved the gun, but that he

did not leave despite being told to do so. In fact, Andrew admitted that Treanor gave him an

opportunity to leave before the gun was retrieved. Accordingly, because Treanor had possession

of the firearm and made either an implicit or explicit threat, the instruction of self-defense by

deadly force would arguably be the appropriate instruction requested.

       {¶22} In order to prove self-defense by means of deadly force, a defendant must prove

that “(1) he was not at fault in creating the situation, (2) he had reasonable grounds to believe and

an honest belief that he was in immediate danger of death or great bodily harm and that his only

means of escape from such danger was by the use of deadly force, and (3) he had not violated any

duty to escape to avoid the danger.” Ludt, 180 Ohio App.3d 672, 2009-Ohio-416, 906 N.E.2d

1182, at ¶ 21.

       {¶23} In this case, Treanor presented sufficient evidence to establish that he was not at

fault for creating the situation. Seth testified that he went to Treanor’s house in an intoxicated

state with Andrew to check on Treanor after receiving a call from his sister that their father was

threatening suicide. Seth admitted that after he saw that Treanor was asleep, he decided to

escalate the situation by waking him up and yelling at him. Seth admitted he caused the

situation. Additionally, sufficient evidence was presented to establish that Treanor had no duty

to retreat before using the necessary force because the altercation occurred in his own home. See

R.C. 2901.09(B) (creates an exception to the general duty to retreat when using force in

self-defense in one’s own home).
          {¶24}   The city contends that a self-defense instruction was not warranted because

Treanor did not have a reasonable and honest belief that he was in immediate danger of death or

great bodily harm and that his only means of escape from such danger was by the use, or in this

case, threat of deadly force.

          {¶25} The defendant’s fear of immediate death or great bodily harm must be objectively

reasonable. In addition, “Ohio has adopted a subjective test in determining whether a particular

defendant properly acted in self-defense.      The defendant’s state of mind is crucial to this

defense.” State v. Koss, 49 Ohio St.3d 213, 215, 551 N.E.2d 970 (1990). Thus, there must be

both reasonable (objective) grounds to believe that harm is imminent, and an honest (subjective)

belief that harm is imminent. State v. Thomas, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339

(1997).     In determining whether there are reasonable grounds for believing there was an

imminent threat of great bodily harm, the court can consider whether the defendant received prior

threats. State v. Fields (1992), 84 Ohio App.3d 423, 428, 616 N.E.2d 1185.

          {¶26} In this case, Treanor presented sufficient evidence of such nature and quality that

he had a reasonable and honest belief that great bodily harm was imminent. Treanor testified that

Seth was not allowed to be in his home because they had an estranged relationship, and he had

not seen his son in six or eight months. According to Treanor, Seth was not welcome in his

home because on prior occasions, Seth was verbally and physically abusive and had taken things

from him. Seth’s testimony substantiated that he and Treanor had a distant relationship; he

admitted that he had previously insulted Treanor and even wished he was dead.              Treanor

testified that based on the history between the two, Seth’s intoxicated state, the aggression Seth

showed, the presence of a stranger in his house, and Seth and Andrew’s refusal to leave, Treanor
felt threatened with serious physical harm, causing him to retrieve his firearm and order Seth and

Andrew to leave.

        {¶27} Accordingly, it is possible that a trier of fact could have interpreted these facts as

indicating that Treanor had a reasonable belief of great bodily harm, and that he used a

reasonable threat of force to repel what he perceived to be and imminent threat. Treanor

presented sufficient evidence of such nature and quality to warrant an instruction on self-defense.

 Again, whether Treanor can withstand his burden of proving that he acted in self-defense is a

question for the trier of fact, not this court.

Castle Doctrine

        {¶28} In 2008, the Ohio General Assembly through S.B. 184, enacted Ohio’s castle

doctrine, which is codified in R.C. 2901.05(B)(1) and 2901.09.

        {¶29} R.C. 2901.05(B)(1) creates a rebuttable presumption that a person acts in

self-defense “when using defensive force that is intended or likely to cause death or great bodily

harm to another if the person against whom the defensive force is used * * * has unlawfully and

without privilege to do so entered, the residence or vehicle occupied by the person using the

defensive force.” R.C. 2901.09 removes the duty to retreat from inside one’s home before using

deadly force when acting in self-defense.

        {¶30} This court recently discussed R.C. 2901.05 and 2901.09 pertaining to protection of

one’s residence and their application depending on the status of the victim. State v. Echevarria,

8th Dist. Cuyahoga No. 105815, 2018-Ohio-1193. “If the victim was lawfully in the defendant’s

residence at the time the defendant used force against the victim, the defendant would not be

entitled to the presumption of self[-]defense.”          Id. at ¶ 33, citing State v. Lewis,

2012-Ohio-3684, 976 N.E.2d 258, ¶ 19 (8th Dist). However, the defendant would have no duty
to retreat from his residence at the time force was used. Id., citing Lewis at ¶ 17-19, State v.

Bushner, 9th Dist. Summit No. 26532, 2012-Ohio-5996, ¶ 16.

       {¶31} In this case, even if Seth and Andrew were initially lawfully present and had

privilege to be at the residence, that privilege was arguably revoked when they both refused to

leave when instructed. Their status potentially changed to trespassers — persons unlawfully and

without privilege to be present. If they were trespassers, Treanor would have no duty to retreat

from inside his own home before using deadly force. However, he would still have to prove the

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

       {¶32} Accordingly, the trial court abused its discretion in failing to instruct the jury on

self-defense and the instructions pertaining to the castle doctrine. Treanor’s first assignment of

error is sustained. His convictions are reversed and the case is remanded for a new trial. The

resolution of the first assignment of error renders Treanor’s second assignment of error, which

challenges an evidentiary ruling made during trial, moot.

       {¶33} Judgment reversed; case remanded for a new trial.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal court to

carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
