[Cite as State v. Bagley,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-13-31

v.

BRUCE A. BAGLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR20130033

Judgment Affirmed

Date of Decision: April 28, 2014

APPEARANCES:

F. Stephen Chamberlain for Appellant

Jana E. Emerick for Appellee Case No. 1-13-31

PRESTON, J.

{¶1} Defendant-appellant, Bruce A. Bagley (“Bagley”), appeals the Allen

County Court of Common Pleas’ judgment entry of sentence. We affirm.

{¶2} This case stems from a June 27, 2012 altercation that took place near

the intersection of Kibby Street and Harrison Avenue in Lima, Ohio. Nicole

Schneider (“Schneider”) and her half-brother, Elwood Fletcher (“Fletcher”), were

traveling in Schneider’s car and stopped at a traffic light when they encountered

Bagley standing near the intersection. Arguments ensued, first between Schneider

and Bagley, then between Fletcher and Bagley. Ultimately, Bagley cut Fletcher’s

throat with a knife, claiming self-defense.

{¶3} On February 14, 2013, the Allen County Grand Jury indicted Bagley

on one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of

the second degree. (Doc. No. 1). The indictment also contained specifications

that: (1) Bagley had previously been convicted of a first or second-degree felony

offense; and, (2) Bagley was a repeat violent offender (“RVO”) under R.C.

2929.01(CC), and the offense indicted was an offense of violence and involved an

attempt or threat to cause serious physical harm to a person or caused serious

physical harm to a person. (Id.).

{¶4} On February 25, 2013, Bagley pled not guilty to the indictment at

arraignment. (See Doc. No. 74).

-2- Case No. 1-13-31

{¶5} On June 4-5 and 13, 2013, a jury trial was held. (See Doc. No. 74).

The jury found Bagley guilty of felonious assault and further found that Bagley

failed to prove by a preponderance of the evidence that he acted in self-defense.

(Doc. No. 72). The jury also found that the offense involved an attempt or threat

to cause serious physical harm to a person or caused serious physical harm to a

person. (Id.).

{¶6} On June 13, 2013, the trial court filed its judgment entry of conviction.

(Doc. No. 74). The trial court scheduled an RVO-specification hearing and

sentencing hearing for June 25, 2013. (Id.).

{¶7} On June 25, 2013, the trial court held an RVO-specification hearing

and determined that Bagley was an RVO. (Doc. No. 78). The trial court

proceeded to sentence Bagley to eight years imprisonment on the felonious-assault

conviction and five years of additional imprisonment for his RVO designation, to

be served consecutively, for an aggregate sentence of 13 years. (Doc. No. 79).

The trial court also ordered that Bagley serve the term in this case consecutive to

the term imposed in Case No. CR2012 0449. (Id.).

{¶8} On July 3, 2013, Bagley filed a notice of appeal. (Doc. No. 84).

Bagley raises five assignments of error on appeal. To facilitate our analysis, we

first address his third assignment of error, followed by his fourth and fifth

assignments of error, then his first and second assignments of error together.

-3- Case No. 1-13-31

Assignment of Error No. III

Defendant Bagley’s convictions for felonious assault and a repeat violent offender specification were against the manifest weight of the evidence and not supported by sufficient evidence.

{¶9} In his third assignment of error, Bagley argues that the jury’s verdict

finding him guilty of felonious assault was against the manifest weight of the

evidence and based on insufficient evidence. Specifically, Bagley argues that “the

jury lost its was [sic] in evaluating the evidence for self defense.” (Appellant’s

Brief at 15). Bagley argues that Fletcher “inserted himself into the verbal

confrontation” between Bagley and Schneider and then threatened and attacked

Bagley, so Bagley’s use of non-deadly force was warranted self-defense. (Id. at

16-17).

{¶10} At trial, Bagley did not dispute that the State could prove the

elements of felonious assault. Rather, he asserted the affirmative defense of self-

defense, and he argues on appeal that his felonious-assault conviction was against

the manifest weight of the evidence and unsupported by sufficient evidence

because his affirmative defense of self-defense was “completely sustained.”

(Appellant’s Brief at 17). Bagley’s challenge to the sufficiency of the evidence as

to self-defense is inappropriate. State v. Vasquez, 10th Dist. Franklin No. 13AP-

366,

.

-4- Case No. 1-13-31

{¶11} Self-defense is an affirmative defense, and the accused bears the

burden of proving it by a preponderance of the evidence. State v. Belanger,

,

(3d Dist.). See also R.C. 2901.05(A).

“The ‘due process ‘sufficient evidence’ guarantee does not implicate affirmative

defenses, because proof supportive of an affirmative defense cannot detract from

proof beyond a reasonable doubt that the accused had committed the requisite

elements of the crime.’” Vasquez at ¶ 52, quoting State v. Hancock,

,

, ¶ 37. Therefore, we address Bagley’s self-defense

arguments only in our analysis of the manifest weight of the evidence.

{¶12} Nor will we address Bagley’s arguments that his RVO “conviction”

was against the manifest weight of the evidence and not supported by sufficient

evidence. Although Bagley makes this assertion in the title of his third assignment

of error, his argument under that assignment of error focuses solely on his

purported self-defense as it relates to his felonious-assault conviction. He does not

mention the RVO specification. Therefore, under App.R. 12(A)(2), we disregard

Bagley’s assertion that his RVO “conviction” was against the manifest weight of

the evidence and not supported by sufficient evidence. State v. Moyar, 3d Dist.

Auglaize No. 2-06-10,

(“We may disregard any assignment

of error if the appellant ‘fails to identify in the record the error on which the

assignment of error is based or fails to argue the assignment separately in the brief,

-5- Case No. 1-13-31

as required under App.R. 16(A).’”), quoting State v. Chilcutt, 3d Dist. Crawford

Nos. 3-03-16 and 3-03-17,

.

{¶13} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact]

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” State v. Thompkins,

(1997), quoting State v. Martin,

(1st Dist. 1983). A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass,

(1967).

When applying the manifest-weight standard, “[o]nly in exceptional cases, where

the evidence ‘weighs heavily against the conviction,’ should an appellate court

overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v. Hunter,

, 2011-Ohio-

6524, ¶ 119.

{¶14} Bagley was convicted of felonious assault in violation of R.C.

2903.11(A)(2); however, he does not dispute that the State proved the elements of

that offense. Rather, Bagley argues that the jury lost its way in concluding that he

-6- Case No. 1-13-31

did not act in self-defense. Bagley argues that the evidence at trial demonstrated

that he used non-deadly force on Fletcher in self-defense.

{¶15} The elements of self-defense differ depending on whether the

defendant used deadly or non-deadly force to defend himself. State v. Densmore,

3d Dist. Henry No. 7-08-04,

. Deadly force is “‘any force

that carries a substantial risk that it will proximately result in the death of any

person.’” Id. at ¶ 28, quoting R.C. 2901.01(A)(2). Courts have concluded that

using even “a small knife on another person’s body” constitutes “deadly force.”

Id., citing Struthers v. Williams, 7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-

6637, ¶ 13, State v. Skinner, 9th Dist. Lorain No. 06CA009023,

, State v. Sims, 8th Dist. Cuyahoga No. 85608,

, and

State v. Hansen, 4th Dist. Athens No. 01CA15,

, ¶ 29. See also

State v. Harding, 2d Dist. Montgomery No. 24062,

(“Stabbing a victim (or victims) with a knife constitutes the use of deadly force. *

* * Consequently, to satisfy his burden, Harding had to meet the standard for self-

defense through the use of deadly force.”), citing Sims at ¶ 17, Densmore at ¶ 28,

and Hansen ¶ 29. Here, Bagley does not dispute that he used a folding Tac Force

knife to cut Fletcher’s throat. (See Appellant’s Brief at 7, 16-17); (June 4-5 and

13, 2013 Tr., Vol. Two, at 232-233). Therefore, contrary to his assertion, we

-7- Case No. 1-13-31

conclude that Bagley used deadly force, and he was required to satisfy the

elements of self-defense by deadly force.

{¶16} To establish self-defense through the use of deadly force, an accused

must prove: “(1) the accused was not at fault in creating the situation giving rise

to the affray; (2) the accused had a bona fide belief that he or she was in imminent

danger of death or great bodily harm and that the only means of escape from such

danger was in the use of force; and (3) the accused must not have violated any

duty to retreat or to avoid the danger.” State v. Thacker, 3d Dist. Marion No. 9-

03-37,

, citing State v. Williford,

(1990) and State v. Robbins,

(1979), paragraph two of the

syllabus. Because the elements of self-defense are cumulative, 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. Thacker at ¶ 14, citing

State v. Jackson,

(1986).

{¶17} At trial, the State called Schneider, who testified that Fletcher’s and

her half-sister, Angie, was in an ongoing controversy with Bagley concerning a

cell phone, a cell-phone charger, and ten dollars, and that is how Schneider knew

of Bagley. (June 4-5 and 13, 2013 Tr., Vol. One, at 87). According to Schneider,

Bagley had given Angie a black eye. (Id. at 94-95). Schneider testified that,

-8- Case No. 1-13-31

according to her mother, on June 27, 2012, Bagley “ran up on” her mother’s car,

which was occupied by Schneider’s children. (Id. at 93-94, 97, 112).

{¶18} That same day, Schneider, with Fletcher in the passenger seat, was

stopped at a traffic light at the intersection of Harrison Avenue and Kibby Street,

near Bagley’s house, and she noticed Bagley was walking toward her car and

talking on a cell phone. (Id. at 95-96). According to Schneider, she thought

Bagley was talking to her, so she talked back to him. (Id. at 96). She testified that

Bagley approached her car “hollering ‘bitch’ this and ‘bitch’ that,” and she

responded by saying, “What? I’m not scared,” at which point the situation

“proceeded into an argument.” (Id. at 96-97).

{¶19} Schneider testified that she told Bagley “to just drop” the cell-phone

controversy and that “he shouldn’t be running up on people’s cars with other

people’s kids in it.” (Id. at 97). Bagley responded by saying that the cell phone

Schneider’s half-sister stole from him was his sister’s phone, that he needed to

return it, and that “[h]e was going to do to [Schneider] like he did [Schneider’s]

sister,” which Schneider perceived as a threat. (Id. at 98).

{¶20} Schneider testified that as Bagley was approaching her car, she

opened her car door and got out of her car. (Id.). According to Schneider,

Fletcher also got out of the car, came around to the driver’s side, got between

Schneider and Bagley, told Bagley that Bagley was not going to put his hands on

-9- Case No. 1-13-31

Schneider and “needed to fight a man instead of a female,” and slapped himself in

the face. (Id. at 98-100). Schneider testified that, in response, Bagley said “he

was tired of all this stuff that was going on,” to which Schneider responded by

saying that he did not “need to be running up on a car full of kids.” (Id. at 100).

{¶21} According to Schneider, Bagley then “swung” at Fletcher’s throat,

and it looked like Bagley hit Fletcher with the cell phone. (Id. at 99-101). At that

point, Fletcher leaned back, grabbed his throat, and took off running for the Meat

City drive-through across the street. (Id. at 100-101). Schneider testified that she

could see blood coming down Fletcher’s neck when he turned around. (Id. at

101). According to Schneider, Fletcher did not touch or strike Bagley in any way,

nor did Fletcher have any sort of weapon or object in his hand when he got out of

the car. (Id. at 102). Schneider did not have a weapon in her car, either. (Id. at

103). Schneider testified that after Fletcher ran toward Meat City, Bagley walked

toward his house, which was only two houses away. (Id. at 102).

{¶22} On cross-examination, Schneider testified that she did not tell

Patrolman Justin Wireman of the Lima Police Department, who responded to the

scene, that she engaged Bagley; rather, that Bagley engaged her. (Id. at 110-111).

Schneider testified that she and Bagley were yelling from the start of their

argument, and Fletcher was yelling as well when he joined the argument. (Id. at

113, 118). During the argument, she opened her car door “the rest of the way”

-10- Case No. 1-13-31

when she perceived Bagley’s hands coming at her, in the window. (Id. at 114).

She could not recall whether her car door hit Bagley when she opened it; she

opened the door to get Bagley away from her car. (Id.).

{¶23} Schneider agreed on cross-examination that she “possibly” had the

opportunity to drive away rather than continue to argue with Bagley. (Id. at 115).

Bagley did not make physical contact with Schneider during the argument. (Id. at

115-116). Schneider did not tell Fletcher to get out of the car. (Id. at 117).

According to Schneider, Fletcher did not hit, push, or punch Bagley before Bagley

cut Fletcher’s throat. (Id. at 120). She testified that Bagley made the slashing

motion when Fletcher raised his hands from his sides and slapped himself in the

face. (Id. at 121).

{¶24} On re-direct examination, Schneider testified that she did not lay a

hand on or make physical contact with Bagley, aside from her being uncertain

about whether her car door hit him as she opened it. (Id. at 122-123). She

testified that Fletcher did not threaten Bagley in any way when he exited the car

and inserted himself between Bagley and Schneider, nor did he make any

menacing or aggressive gestures toward Bagley. (Id. at 124-125). She also

testified that there was nothing blocking Bagley into his position, such as a vehicle

or fence, and he had access to turn around and go away the way he came. (Id. at

124).

-11- Case No. 1-13-31

{¶25} Fletcher testified that he saw a man who he did not know and had

never seen before “come running up at the car.” (June 4-5 and 13, 2013 Tr., Vol.

Two, at 203-205). According to Fletcher, he was “too busy into [his] phone when

[he] was texting” and did not hear any of the conversation between Schneider and

the man before Schneider got out of the car and he heard the man say, “I’m going

to do to you what I did to your sister.” (Id. at 203). Fletcher said the man’s telling

Schneider he was going to do to her what he did to her sister “went straight to

[Fletcher’s] mind” because “some man had hit [his] sister with a pistol on her face

and blacked both of her eyeballs,” and his sister “was afraid to even come to

[Fletcher’s] house because [the man] lived somewhere in the vicinity beside

[Fletcher’s] house.” (Id. at 204).

{¶26} Fletcher testified that he then got out and ran around the backside of

the car, moved Schneider out of the way, slapped himself in his face twice, “got up

in the dude’s face,” and said, “You ain’t going to hit my sister. You’re going to

hit me.” (Id. at 203, 205). Fletcher testified that he hit himself in the face because

he had just gotten off work and “was a little tired,” so he “tried to psych [himself]

out a little bit, trying to get hyped.” (Id. at 205). Fletcher was not indicating to the

man that the man should hit him, Fletcher testified. (Id.).

{¶27} According to Fletcher, when he pulled his hands down after hitting

himself in the face, the man’s hand came up and hit Fletcher in the throat with a

-12- Case No. 1-13-31

knife, at which point Fletcher saw blood on his hands. (Id. at 205-206, 220).

Fletcher grabbed his throat, saw the man “going ‘yea, yea,’” told the man that he

“should have killed” Fletcher, and ran to Meat City across the street. (Id. at 206-

207). Fletcher testified that he did not touch or hit the man in any way, he did not

have a weapon or anything else in his hands when he got out of the car, and he did

not tell the man that he had a weapon of any sort. (Id. at 207-208).

{¶28} On cross-examination, Fletcher admitted that the man did not push,

punch, or make physical contact with Schneider before he intervened, although

Schneider and the man were “standing about face-to-face,” and “it looked like

they were going to fight.” (Id. at 216). Fletcher testified that when he exited the

vehicle, he was “[j]ust trying to be protective” and “wasn’t super angry”; he was

just “upset” and “wasn’t happy that [the man] was talking to [his] sister like that.”

(Id. at 216-217). Fletcher testified that he felt that the man was going to cause

Schneider harm because Angie “had already gotten her eye blackened.” (Id. at

217).

{¶29} According to Fletcher, when Bagley saw him coming around the

vehicle, Bagley “just backed up in like a little fighting stance” because Fletcher

alarmed him. (Id. at 218-219). Fletcher testified that he did not get into a fighting

stance, but he slapped himself in the face to get ready to fight. (Id. at 219).

According to Fletcher, he told Bagley that he should have killed him because

-13- Case No. 1-13-31

Fletcher knew he would eventually testify in court against Bagley; Fletcher did not

have any intentions to cause Bagley harm. (Id. at 221).

{¶30} The State also offered the testimony of Peggy and Gary Jennings,

who reside in a house next to the Kibby-Harrison intersection. (June 4-5 and 13,

2013 Tr., Vol. One, at 143). Peggy testified that she and her husband had just

gotten home from work when they noticed a “heated argument” taking place

between a woman in a car (Schneider) and a black male (Bagley) outside the

vehicle. (Id. at 146). According to Peggy, she saw the woman exit the car and

continue arguing with the black male, then a white male (Fletcher) exited the

passenger side of the vehicle and went around the back of the car to where the

woman and black male were. (Id. at 147). Peggy testified that the white male

“kind of leaned in,” and she “thought they were going to get into an argument,” at

which point she “saw the black man take his hand towards the white guy.” (Id.).

Peggy thought the black male was “slapping” the white male. (Id.). Then, Peggy

saw the white male grab his neck and run off. (Id.).

{¶31} Peggy testified that the exchange between the white male and the

black male was not as heated as the exchange between the woman and the black

male. (Id. at 148). Peggy had a clear view of the three individuals, such that she

could see their bodies as they stood in the street. (Id.). Before Peggy saw the

black male make the slapping motion toward the white male, the white male did

-14- Case No. 1-13-31

not strike, punch, hit, or touch the black male in any way, nor did she observe

anything assaultive, menacing, or aggressive about the white male’s body

language or demeanor. (Id. at 149). Peggy testified that after the white male ran

away, she observed the woman say something to the black male, to which the

black male responded, “Yea, I cut him.” (Id. at 149-150).

{¶32} On cross-examination, Peggy testified that when she observed the

white male lean in, she interpreted it as, “If you want to hit somebody, hit me.”

(Id. at 156). She testified that when the white male “leaned in,” the black male

struck him. (Id.). By “lean in,” Peggy meant that the white male “just moved his

head”—he did not make physical contact with the black male. (Id. at 156-157).

According to Peggy, the white male “wasn’t the aggressor,” and she perceived the

black male to be the aggressor “because of his demeanor and how he was acting.”

(Id.). She did not see the white male smack himself in the face. (Id. at 159).

{¶33} On re-direct examination, Peggy testified that there was nothing

behind the black male, such as traffic, blocking him into that position and

preventing him from walking away if he wished. (Id. at 160).

{¶34} Gary Jennings testified that he and his wife heard a commotion and

saw a woman in a car arguing with a black male outside the car. (Id. at 163-164).

He testified that the woman exited the car, then a white male who was in the car

also exited and went around the car to defend the woman and “kind of stuck his

-15- Case No. 1-13-31

neck out, like, ‘you know, if you want to pick on somebody, pick on me.’” (Id. at

163-165). He then saw the black male’s hand go up toward the white male, and it

looked like the black male slapped the white male. (Id.). According to Gary, the

white male grabbed his neck and ran toward Meat City across the street. (Id.).

Gary testified that before he grabbed his neck and ran, the white male did not

make any aggressive moves toward the black male, nor did he strike, punch, hit, or

otherwise lay a hand on the black male. (Id. at 165).

{¶35} During cross-examination of one of the State’s witnesses, Patrolman

Justin Wireman of the Lima Police Department, Wireman testified that Schneider

told him that Bagley was just walking down the street before the incident, and she

did not tell him that Bagley was coming at her vehicle aggressively. (Id. at 50-51).

Wireman said Schneider told him that she engaged Bagley, and an argument

ensued. (Id. at 51-52). Schneider told Wireman that she did not exit the vehicle

until after Fletcher fled for Meat City. (Id. at 52).

{¶36} Patrolman Brian Snyder of the Lima Police Department testified that

he responded to the scene and received information that Bagley was in his house

near the intersection, so Snyder “knocked repeatedly” for “several minutes” on the

door of Bagley’s house—using a forceful knock and announcing in a forceful tone

that it was the police—but no one answered. (Id. at 55-57). He testified that no

one entered or exited Bagley’s house after he arrived, and after Bagley exited and

-16- Case No. 1-13-31

surrendered 20 or 25 minutes after Snyder’s arrival, law enforcement entered the

house, and they did not find anyone inside the house. (Id. at 58-59). Snyder

testified that he found a black and silver folding pocket knife in a closed file box

in the closet of an upstairs bedroom. (Id. at 60-61). Snyder identified State’s

Exhibits 8, 9, and 10 as photographs of the closet, the file box, and the knife inside

the file box as Snyder found it when he opened the file box. (Id. at 64-65).

{¶37} The State called Detective Steven Stechschulte of the Lima Police

Department, who testified that when he arrived at the scene to investigate, he

spoke with Peggy Jennings and Schneider, whose stories of what happened were

consistent. (June 4-5 and 13, 2013 Tr., Vol. Two, at 228). According to

Stechschulte, he acquired Bagley’s phone number from Spring Fugatt, and he then

called Bagley and told him they needed to talk. (Id. at 229). Stechschulte testified

that Bagley “said that he didn’t know anything about any stabbing or any type of

fight and, in fact, he wasn’t even at his house at the time.” (Id.). Bagley “said that

he would be coming back there shortly,” Stechschulte testified, and Stechschulte

said he would wait on Bagley. (Id.). Stechschulte learned from neighbors that

someone was in Bagley’s house, looking out of an upstairs window as police

knocked on the door. (Id. at 230). Stechschulte then called Bagley back and told

him he knew he was in the house, and Bagley then came out the front door, at

-17- Case No. 1-13-31

which time Stechschulte had a patrolman take Bagley into custody and transport

him to the police department. (Id.).

{¶38} Stechschulte testified that Bagley’s wife arrived at the house as they

took Bagley into custody, and she consented to a search of the house. (Id. at 231).

Stechschulte identified the Tac Force knife that he and the other officers found

concealed in the portable file in Bagley’s bedroom closet, the blade of which he

said had “remnants of what appeared to be flesh and blood” that ultimately

matched Fletcher’s DNA. (Id. at 232-233, 251-252). Stechschulte testified that

based on his experience and training, such a knife is “[a]bsolutely” capable of

inflicting death. (Id. at 234).

{¶39} Stechschulte identified State’s Exhibit 20 as a copy of the

surveillance video from Meat City, which Stechschulte acknowledged on cross-

examination showed only a portion of what allegedly occurred at the

intersection—some of the incident occurred off-screen. (Id. at 235-237, 252). The

State’s counsel played the video for the jury, and Stechschulte said that about five

or six seconds before Fletcher can be seen in the video running toward Meat City,

he can be seen “backing away.” (Id. at 238). After Fletcher can be seen running

toward Meat City, Bagley can be seen “stand[ing] there in the roadway for a

couple of seconds” before walking back toward his residence. (Id. at 238-239).

-18- Case No. 1-13-31

{¶40} Stechschulte identified State’s Exhibit 21 as a video of his interview

of Bagley on June 27, 2012, an hour or hour and 15 minutes after the incident.

(Id. at 241). In the interview, Bagley begins by stating that the incident occurred

in his front yard before later acknowledging that it occurred at the intersection.

(State’s Ex. 21). Bagley told Stechschulte that he noticed a bat in the back seat of

Schneider’s car. (Id.). Bagley also said that he did not come out of his house right

away because he was inside with his 13-year-old son, Jeffrey, and he was waiting

for his wife to come home. (Id.); (June 4-5 and 13, 2013 Tr., Vol. Two, at 245).

Bagley said, “I’ve never been scared of jail—did 20 years straight for something I

didn’t do.” (State’s Ex. 21). Stechschulte testified that their search did not reveal

a child in the house, and his investigation revealed that Bagley has an adult son

name Jeffrey, but he lives in Florida and has not been to Ohio for several years.

(June 4-5 and 13, 2013 Tr., Vol. Two, at 245). At the end of the interview, in

response to Stechschulte questioning his truthfulness, Bagley shouted, “Yes, I cut

him! Fuck him!” (State’s Ex. 21). A couple seconds later, Bagley added, “He

shouldn’t have hit me in my jaw. You gonna do something about that?” (Id.).

{¶41} Stechschulte identified State’s Exhibit 22 as a video of his interview

of Bagley on June 29, 2012, two days after the incident. (June 4-5 and 13, 2013

Tr., Vol. Two, at 246). In that interview, Bagley explained his version of the

events, saying Fletcher “throw his hands up, swing at me, hit me. I cut him. Self-

-19- Case No. 1-13-31

defense, man.” (State’s Ex. 22). At another point in the interview, Bagley told

Stechschulte, “You hit me, I’m gonna do what I gotta take to defend myself,” and,

“Flat out, point blank, man: I don’t sit and wait to take chances, man.” (Id.).

When Stechschulte told Bagley that the law did not allow him to use a deadly

weapon in a fistfight, Bagley said that Fletcher was taller than him. (Id.).

Throughout the interview, Stechschulte questioned Bagley under the assumption

that Fletcher punched Bagley or was the aggressor, but Stechschulte testified that

he used that assumption as an “interview technique” and did not actually believe

that, and the evidence that Stechschulte uncovered in his investigation “showed all

to the contrary.” (June 4-5 and 13, 2013 Tr., Vol. Two, at 248, 254).

{¶42} The defense offered the testimony of one witness, Richard

Commons, who testified that he was in the Meat City parking lot when he

observed an argument occurring in the street at the nearby intersection of Kibby

and Harrison. (Id. at 276, 278). According to Commons, the argument began with

a black male (Bagley) outside the car and a white female (Schneider) and a white

male (Fletcher) inside the car. (Id. at 276-278). Commons testified that he “never

observed [the white female] at any time out of the car,” but the white male did get

out of the car. (Id. at 278). According to Commons, “the black guy was backing

up and the white guy ran around the car, like, like he was going to attack the guy,”

and the black male turned and swung his arm. (Id. at 278-279).

-20- Case No. 1-13-31

{¶43} Commons observed the Meat City video surveillance video before

testifying, and he testified that the video did not capture the entire incident. (Id. at

279-280). He testified that he came forward because he saw a newspaper story

about Bagley’s trial, which jogged his memory of the incident, which was

inconsistent with Bagley’s felonious-assault charge. (Id. at 282).

{¶44} On cross-examination, Commons testified that from his position, the

white male did not touch the black male before the black male swung at the white

male, nor did the white male have any weapon or other object in his hand. (Id. at

293-294).

{¶45} We conclude that the jury did not lose its way as to Bagley’s self-

defense assertion. There was conflicting evidence concerning the first element of

self-defense—that is, whether Bagley was at fault in creating the situation giving

rise to the affray. However, the overwhelming weight of the evidence is not in

Bagley’s favor concerning the second and third elements of self-defense.

{¶46} We address the third element first. “[T]here is

a duty to retreat before using deadly force unless one is in his home or business.”

State v. Ross, 3d Dist. Marion No. 9-91-3,

, *3 (Oct. 23, 1991),

citing State v. Jackson,

(1986). Here, the altercation took place

in Harrison Avenue, so Bagley had a duty to retreat before using deadly force.

Schneider and Peggy Jennings testified that there was nothing impeding Bagley’s

-21- Case No. 1-13-31

ability to retreat, and he had a clear path back to his house. There was no evidence

to the contrary. Therefore, Bagley did not prove the third element of self-defense.

{¶47} To satisfy the second element of self-defense, Bagley was required to

prove by a preponderance of the evidence that he had a bona fide belief that he

was in imminent danger of death or great bodily harm and that the only means of

escape from that danger was in the use of deadly force on Fletcher. In considering

whether a defendant proved the second element, the jury must consider all the

circumstances to see whether the defendant had an objective reasonable belief of

imminent danger of death or great bodily harm and if he possessed a subjective,

honest belief that he was in imminent danger of death or great bodily harm. See

State v. Inman, 9th Dist. Medina No. 03CA0099-M,

, citing

State v. Thomas,

(1997); State v. Ludt,

,

(7th Dist.). A defendant may use only as much

force as is reasonably necessary to repel the attack. Belanger,

; State v. Ingram, 10th Dist. Franklin No. 11AP-1124,

,

¶ 30.

{¶48} Here, there is no evidence that Bagley possessed the necessary

objective and subjective beliefs. Even setting aside the question of who the

aggressor was, Schneider, Fletcher, and even Commons testified that Fletcher did

not have any sort of weapon in his hands when he got out of the car and

-22- Case No. 1-13-31

approached Bagley, nor did he lead Bagley to believe he did. Rather, Fletcher

slapped himself in the face to wake himself up for a fistfight. While Bagley said

in his interviews with Stechschulte that he saw a bat in the back seat of

Schneider’s car and that Fletcher is taller than him, these observations were not

enough to justify using a deadly weapon, such as a knife. Furthermore, because

Bagley’s story changed so dramatically during Stechschulte’s investigation, the

jury may have chosen to discredit his interview statements. For these reasons, the

jury did not lose its way by finding that it was not objectively reasonable for

Bagley to believe he was in imminent danger of death or great bodily harm.

{¶49} Nor did Bagley establish that he had the subjective, honest belief that

he was in imminent danger of death or great bodily harm. Schneider, Fletcher,

and Peggy and Gary Jennings testified that Bagley was the aggressor, compared to

Commons who testified that he perceived Fletcher as the aggressor. However, as

Stechschulte pointed out in his testimony, the Meat City surveillance video reveals

that, contrary to Commons’ recollection, it was Fletcher who was backing away

from Bagley just before Bagley pulled the knife—not the other way around.

Moreover, Bagley’s statements in his interviews with Stechschulte revealed that

he believed he was justified in using any means to defend himself, regardless of

the level of force used against him, saying, “You hit me, I’m gonna do what I

gotta take to defend myself.” (State’s Ex. 22). Finally, Bagley’s not answering

-23- Case No. 1-13-31

the door when police were knocking, his hiding the knife, and his constantly

evolving version of the events suggest that he knew what he did was not lawful.

In short, nothing in the record supports that Bagley believed he was in imminent

danger of death or great bodily harm.

{¶50} For these reasons, Bagley failed to prove at least two of the elements

of self-defense, and we cannot conclude that the jury clearly lost its way and

created such a manifest miscarriage of justice that Bagley’s felonious-assault

conviction must be reversed and a new trial ordered.

{¶51} Bagley’s third assignment of error is overruled.

Assignment of Error No. IV

The trial court erred in allowing a part of the interview between the defendant and the investigating detective to be played for the jury during the State of Ohio’s case in chief that references the defendant’s prior incarceration in state prison.

{¶52} In his fourth assignment of error, Bagley argues that the trial court

erred by allowing the State to play the portion of the video of his first interview

with Stechschulte in which Bagley said, “I’ve never been scared of jail—did 20

years straight for something I didn’t do.” (State’s Ex. 21). Specifically, Bagley

argues that evidence of his prior incarceration was impermissible character

evidence under Evid.R. 404. The trial court ruled that Bagley’s prior-incarceration

reference was admissible under Evid.R. 404(B) for purposes other than to prove

-24- Case No. 1-13-31

Bagley’s character and that the evidence was not unfairly prejudicial under

Evid.R. 403.

{¶53} We apply a plain-error standard of review to this assignment of error.

“‘[T]he denial of a motion in limine does not preserve a claimed error for review

in the absence of a contemporaneous objection at trial.’” Hancock,

, quoting State v. Hill,

(1996). In other words, if

the party wishing to exclude evidence fails to contemporaneously object at trial

when the evidence is presented, that party waives for appeal all but plain error.

See id. at ¶ 59-60; State v. Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-

2064, ¶ 20; State v. Lenoir, 2d Dist. Montgomery No. 22239,

.

{¶54} Bagley’s counsel “objected” to the prior-incarceration reference

outside of the presence of the jury at the conclusion of the first day of trial, asking

that it “be redacted,” and he reiterated his “objection” the morning of the second

day of trial before the trial court ruled on the objection and brought the jury into

the courtroom. (June 4-5 and 13, 2013 Tr., Vol. One, at 169-175); (June 4-5 and

13, 2013 Tr., Vol. Two, at 185). However, when the State played the video of

Bagley’s first interview, State’s Exhibit 21, which included Bagley’s prior-

incarceration reference, Bagley’s counsel did not object. (June 4-5 and 13, 2013

Tr., Vol. Two, at 242). Nor did Bagley’s counsel object when the State moved for

-25- Case No. 1-13-31

the admission of its exhibits. (Id. at 257). Because Bagley failed to object at the

time the evidence was introduced, we apply plain-error review.

{¶55} Crim.R. 52(B) governs plain-error review in criminal cases. State v.

Risner,

(3d Dist. 1991). For there to be plain error under

Crim.R. 52(B), the trial court must have deviated from a legal rule, the error must

have been an obvious defect in the proceeding, and the error must have affected a

substantial right. State v. Barnes,

(2002). Under the plain-

error standard, the appellant must demonstrate that the outcome of his trial would

clearly have been different but for the trial court’s errors. State v. Waddell,

(1996), citing State v. Moreland,

(1990).

We recognize plain error “‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” State v.

Landrum,

(1990), quoting State v. Long,

(1978), paragraph three of the syllabus.

{¶56} “Evid.R. 404(B) provides that ‘[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity therewith.’” State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-

5128, ¶ 69. “However, there are exceptions to the general rule: ‘It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.’”

-26- Case No. 1-13-31

quoting Evid.R. 404(B). “The list of acceptable reasons for admitting testimony

of prior bad acts into evidence is non-exhaustive.” State v. Persohn, 7th Dist.

Columbiana No.

,

, citing State v. Melton, 11th

Dist. Lake No. 2009-L-078,

, ¶ 78. See also State v. Faye, 3d

Dist. Wyandot Nos. 16-99-08 and 16-99-09,

, *4 (May 4, 2000).

{¶57} In State v. Williams, the Supreme Court of Ohio set forth the three-

step analysis trial courts should conduct in determining whether “other acts”

evidence is admissible under Evid.R. 404(B).

, 2012-Ohio-

5695, ¶ 19-20. “The first step is to consider whether the other acts evidence is

relevant to making any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence.”

citing

Evid.R. 401. “The next step is to consider whether evidence of the other crimes,

wrongs, or acts is presented to prove the character of the accused in order to show

activity in conformity therewith or whether the other acts evidence is presented for

a legitimate purpose, such as those stated in Evid.R. 404(B).”

“The third step

is to consider whether the probative value of the other acts evidence is

substantially outweighed by the danger of unfair prejudice.”

citing Evid.R.

403.

{¶58} As for the first step, Bagley’s theory of the case was that he cut

Fletcher in self-defense, which is an affirmative defense. “‘The defendant’s state

-27- Case No. 1-13-31

of mind is crucial to this defense.’” Ludt,

, quoting

State v. Koss,

(1990). See also Thacker,

(“The statement was relevant to show motive, Thacker’s state of mind at

the time of the stabbing and to rebut Thacker’s claim of self-defense.”).

{¶59} Bagley made his assertion, “I’ve never been scared of jail—did 20

years straight for something I didn’t do,” while explaining in his first interview

with Stechschulte—which took place only an hour or an hour and 15 minutes after

Bagley cut Fletcher—why it took him several minutes to answer the door after

repeated knocking by officers. His statement that he is not scared of jail—

particularly considering his statement in his second interview, “You hit me, I’m

gonna do what I gotta take to defend myself”—was relevant to his state of mind,

intent, and motive, and specifically whether he possessed the requisite subjective,

honest belief that he was in imminent danger of death or great bodily harm, or

whether he did what he believed he needed to do to defend himself, regardless of

whether it was lawful and regardless of whether he may go to jail for it.

{¶60} Under the second step from Williams, the record reflects that the

State did not present the prior-incarceration reference to prove that because Bagley

committed a crime in the past and was incarcerated, he must have committed the

offense of felonious assault in this case. Rather, as we stated above, Bagley’s

prior-incarceration statement was used to prove his state of mind and, specifically,

-28- Case No. 1-13-31

his intent and motive at the time he cut Fletcher’s throat, which are permissible

reasons under Evid.R. 404(B) for admitting other-acts evidence. See Evid.R.

404(B).

{¶61} Under the third step from Williams, the record reflects that the

probative value of Bagley’s prior-incarceration reference was not outweighed by

the danger of unfair prejudice. “Only in rare cases are an accused’s own actions or

language unfairly prejudicial.” State v. Lee, 10th Dist. Franklin No. 06AP-226,

, citing State v. Bailey, 10th Dist. Franklin No. 04AP-553,

.

{¶62} After the State played the video of Bagley’s first interview, the trial

court thoroughly instructed the jury concerning the limited purposes for which it

could consider the prior-incarceration reference, saying:

If you find that the evidence that the defendant previously served a

prison term is true you may consider that evidence only for the

purpose of deciding whether it proves the defendant’s motive, or his

intent, or his purpose to commit the offense charged in this trial.

This evidence cannot be considered for any other purpose.

(June 4-5 and 13, 2013 Tr., Vol. Two, at 243). Given that the prior-incarceration

reference came from Bagley, that there were legitimate purposes under Evid.R.

401 and 404(B) for admitting it, the limiting instruction, which we presume the

-29- Case No. 1-13-31

jury followed absent evidence to contrary, and the overwhelming evidence of

guilt, we cannot conclude that the trial court’s admission of the prior-incarceration

reference amounted to plain error. See State v. Perkins, 3d Dist. Hancock No. 5-

13-01,

.

{¶63} Bagley’s fourth assignment of error is overruled.

Assignment of Error No. V

The trial court erred in allowing a part of the interview between the defendant and the investigating detective to be played for the jury during the State of Ohio’s case in chief that references the opinions of the investigative police officer that the defendant is, or is not telling the truth.

{¶64} In his fifth assignment of error, Bagley argues that the trial court

erred by allowing the State to play the portion of his interview with Stechschulte

in which Stechschulte questions the truthfulness of Bagley’s version of the events

and insinuates that Bagley is lying. Bagley does not specify whether he is

referring to his June 27, 2012 interview or his June 29, 2012 interview, nor does

he cite or excerpt any particular portion of a video.

{¶65} Because Bagley failed to object to the admission of the interview

videos when the State presented them at trial, we apply the plain-error standard of

review that we explained above. (June 4-5 and 13, 2013 Tr., Vol. Two, at 242,

247-248, 257). See State v. Davis,

,

, ¶ 116.

-30- Case No. 1-13-31

{¶66} In support of his argument, Bagley cites the rule that “[a] police

officer’s opinion that an accused is being untruthful is inadmissible.” (Appellant’s

Brief at 21, quoting Davis at ¶ 122). However, the rule from Davis that Bagley

cites applies to testimony, not videos of interviews. See Davis at ¶ 121-123.

Moreover, although the Supreme Court of Ohio in Davis concluded that the

detective’s trial testimony that the defendant “was being very deceptive” was

erroneously admitted, its admission “did not result in plain error” because “[t]here

was overwhelming evidence of Davis’s guilt.” Id.

{¶67} Here, we conclude that the admission of the videos of Bagley’s

interviews did not result in plain error. As we discussed above, there was

overwhelming evidence of Bagley’s guilt. Bagley does not point to any particular

portion or portions of either interview that he finds objectionable. In fact, the

videos of the interviews reflect that the interviewing detective, Stechschulte, used

several interrogation techniques, and his statements and questions, to which

Bagley responded, provide a context for Bagley’s statements and admissions.

Finally, Stechschulte was subject to cross-examination at trial. For these reasons,

we cannot conclude that the admission of the videos of Bagley’s interviews

constituted the exceptional circumstance of plain error. See State v. Gray, 9th

Dist. 08CA0057,

, ¶ 16-17 (“[W]e cannot conclude that the

-31- Case No. 1-13-31

inclusion of the officers’ unredacted statements during their interview prejudiced

Gray, or constituted the ‘exceptional circumstance’ of plain error.”).

{¶68} Bagley’s fifth assignment of error is overruled.

Assignment of Error No. I

By judicial fact finding and imposing consecutive sentences for the repeat violent offender specification, the court has violated the defendant’s right to a trial by jury pursuant to the Sixth Amendment of the United States Constitution.

Assignment of Error No. II

The trial court’s reception of new evidence to support the prior conviction elements of the repeat violent offender specification after the trial had already terminated violated defendant- appellant’s rights under the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

{¶69} In his first assignment of error, Bagley argues that the trial court

violated his right to a jury trial under the Sixth Amendment of the United States

Constitution by imposing an additional definite prison term under R.C.

2929.14(B)(2)(a) after concluding under R.C. 2941.149 that he was an RVO as

defined in R.C. 2929.01(CC). In his second assignment of error, Bagley argues

that by allowing the State to present evidence of his prior conviction for attempted

rape in 1984 and then concluding he was an RVO, all after the jury had returned

its verdict, the trial court violated Bagley’s right to be free from double jeopardy

under the Fifth and Fourteenth Amendments to the United States Constitution.

-32- Case No. 1-13-31

{¶70} “‘The question of constitutionality of a statute must generally be

raised at the first opportunity and, in a criminal prosecution this means in the trial

court.’” State v. Rowland, 3d Dist. Hancock No. 5-01-28,

,

*1 (Mar. 29, 2002), quoting State v. Awan,

(1986). This

applies to challenges to the facial constitutionality of a statute and to the

constitutionality of a statute’s application. See Awan at syllabus. “If a party fails

to object to a constitutional issue at trial, an appellate court need not consider the

objection for the first time on appeal.” Rowland at *1, citing Awan at syllabus.

See also State v. Watkins, 2d Dist. Champaign No. 04CA12,

(declining to address defendant-appellant’s argument that the trial court’s findings

made pursuant to R.C. 2929.14(B)(2) and 2929.14(C) violated his Sixth

Amendment rights because defendant-appellant did not raise his constitutional

argument in the trial court); State v. Johnson, 2d Dist. Montgomery No. 21332,

(declining to address defendant-appellant’s argument that

his conviction for having weapons while under a disability violated his rights

against double jeopardy because defendant-appellant failed to raise his

constitutional argument in the trial court).

{¶71} Here, our review of the record reflects that Bagley is attempting to,

on appeal, raise his arguments under his first and second assignments of error for

the first time. While the case was pending before the trial court, Bagley did not

-33- Case No. 1-13-31

object to the constitutionality of the statutes he now attempts to challenge, nor did

he challenge the trial court’s application of those statutes at the RVO and

sentencing hearings. (See, e.g., June 25, 2013 Tr. at 16 (Defense Counsel: “I’m

not going to make any argument regarding the R.V.O. I’d leave it up to the

Court.”)). Therefore, Bagley has waived these arguments, and, under Awan, we

decline to address them. See Rowland at *1.

{¶72} Bagley’s first and second assignments of error are overruled.

{¶73} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs.

ROGERS, J., concurs; concurs in Judgment Only as to Assignment of Error No. 4. /jlr

-34-