[Cite as State v. Keahey,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-13-009

Appellee Trial Court No. 2011-CR-275

v.

Demetreus A. Keahey DECISION AND JUDGMENT

Appellant Decided: October 24, 2014

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, and Frank Zeleznikar, Assistant Prosecuting Attorneys, for appellee.

Brian J. Darling, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common

Pleas, following a jury trial, in which appellant, Demetreus Keahey, was convicted of one

count of felonious assault, one count of attempted murder, one count of having a weapon while under disability, and one count of improperly discharging a firearm at or into a

habitation or school safety zone. After holding a sentencing hearing, the trial court

sentenced appellant to serve a total of 23 years in prison. On appeal, appellant sets forth

the following five assignments of error:

I. The trial court erred to the prejudice of appellant and abused its

discretion in declining to provide jury instructions on self-defense, an

affirmative defense to the crime charged.

II. The trial court erred to the prejudice of appellant and abused its

discretion in declining to provide jury instructions on necessity, an

affirmative defense to the crime charged.

III. The trial court violated the defendant’s Sixth Amendment right

and abused its discretion in making findings of fact.

IV. The trial court erred to defendant’s prejudice in denying

defendant’s motion for a mistrial.

V. The trial court’s errors, when taken together, deprived appellant

of the [sic] fair trial as guaranteed by the Fourteenth Amendment of the

United States Constitution and Article I, Section Sixteen of the Ohio

Constitution [sic] due Process Clauses.

{¶ 2} Appellant and Kindra McGill are the parents of a daughter, K.K. In

addition, Kindra is the former girlfriend of Prince Hampton, who is the father of her two

2. boys, P.H. and D.H. Because of several factors, including Kindra’s affiliation with both

appellant and Prince, an incident arose at the home of Kindra and appellant on May 7,

2011, during which Prince pulled a knife and stabbed appellant in the back. Appellant

was hospitalized for several days with a collapsed lung. Neither Kindra nor appellant

named Prince as the person who stabbed appellant. Consequently, no one was charged

with a crime in that instance. However, on June 15, 2011, text messages were exchanged

between appellant and Kindra, in which the two discussed Kindra’s reluctance to name

Prince as appellant’s attacker, and also appellant’s desire to retaliate against Prince for

the stabbing.

{¶ 3} At some point after May 7, 2011, Kindra and her children began living with

Kindra’s mother, Joyce McGill, at 2015 Aspen Run Road in Sandusky, Ohio. On the

morning of June 20, 2011, appellant drove to the Aspen Run Road house with the stated

intent of picking up K.K. and Kindra so he could take them to the doctor’s office for

K.K.’s scheduled appointment. Appellant arrived early, parked his vehicle on the street

in front of the house, and walked inside. After a brief conversation with Joyce appellant

went back outside, where he saw a vehicle pulling into the driveway. In the vehicle were

Prince, Kindra’s two boys, and A.C., the young son of Prince’s then-girlfriend.

{¶ 4} When Prince exited the vehicle, appellant drew a gun and fired several shots

at Prince. One bullet hit Prince in the arm, and another went through his pants pocket,

3. hitting him in the leg. That same bullet shredded a roll of paper money that was in

Prince’s pocket, causing confetti-like pieces of the bills to scatter on the ground.

{¶ 5} After appellant began firing at him, Prince ran down the street. At that

point, appellant got into his car and drove away. While witnesses’ accounts varied, it is

undisputed that someone shouted “you are a dead nigga” as appellant’s vehicle drove

down the street. Prince collapsed several blocks from McGill’s house. Neighbors called

911, medical assistance was dispatched to the scene, and Prince was taken to the hospital.

Police arrived on the scene in response to neighbors’ calls, where they discovered that

one bullet had gone through the door of Prince’s vehicle, and another one had gone

through the outside wall and into the living room of McGill’s neighbor, Brunell

Hendrickson. Still another bullet was found under Prince’s vehicle, and several more

were later found on the ground in the surrounding area. In addition, a pair of flip-flop

sandals and a closed pocket knife were found on the driveway near Prince’s vehicle.

{¶ 6} After the altercation appellant fled to Erie, Pennsylvania. On July 25, 2011,

while appellant was still in Pennsylvania, the Erie County Grand Jury indicted him on

one count of drug possession (in an unrelated case), one count of felonious assault on

Prince Hampton, in violation of R.C. 2903.11(A)(2), one count of attempted murder of

Prince Hampton, in violation of R.C. 2903.02(A), three separate counts of felonious

assault on P.H, D.H. and A.C., one count of having a weapon while under disability, in

4. violation of R.C. 2923.13(A)(3), and one count of improperly discharging a firearm at or

into a habitation or school safety zone, in violation of R.C. 2923.161(A).

{¶ 7} A jury trial was held on September 4, 5, 6, 7 and 10, 2012. Trial testimony

was presented on behalf of the state by Joyce and Kindra McGill, Brunell Hendrickson,

Jeremy Pruitt, Robert and Evelyn Brown, Eric Jensen, and various members of the

Sandusky Police Department.

{¶ 8} Joyce testified that she did not see Prince with a knife or a gun on June 20,

2011. She stated that Kindra and appellant had planned to meet at the doctor’s office that

morning, however, appellant came to her house instead. Joyce said that she was in the

doorway of the home when Prince drove up, and she saw Prince get out of the vehicle,

and run to the front of the car, while the car was still running. Joyce also said that

appellant “pulled out a gun and he started shooting.” She then ran out of the house and

yelled at appellant to stop, because her grandchildren were still in the car. After Prince

and appellant left she closed the car door, picked up a pair of sandals from the grass and

placed them in front of the car, and went inside to shower and change her clothes. She

said that Kindra removed the children from the car. Joyce testified that later, at the police

station, she stated that appellant walked down the driveway to the sidewalk after Prince

ran away.

{¶ 9} Kindra testified that she heard it was Prince who stabbed appellant in May

2011, and she stated that Prince and appellant were angry at each other as a result of

5. Prince’s then-girlfriend stirring up trouble. Kindra also testified that appellant was

supposed to meet her and children at the doctor’s office on June 20, 2011, however, he

came to her mother’s home instead. She stated that Prince was 30 minutes late dropping

off her sons at Joyce’s house. Kindra further stated that she did not witness the incident,

however, after hearing shots fired, she went outside and removed the children from the

car. She did not recall seeing a knife or a hole in the car door. She did remember seeing

the sandals on the ground.

{¶ 10} When questioned concerning the text messages sent between her and

appellant on June 15, 2011, Kindra testified that they did not discuss appellant’s intent to

retaliate against Prince for the stabbing. Rather, she was expressing her desire to not be

put in the middle of appellant’s dispute with Prince because she and Prince had children

together.

{¶ 11} On cross-examination, Kindra testified that she had gall bladder surgery

two weeks before the shooting, but she was able to drive K.K. to the doctor’s office

without appellant’s assistance. Kindra stated that she never saw appellant on June 20.

She recalled seeing Prince with a knife and a gun on past occasions, but she denied

knowing whether he habitually carries a weapon. She also stated that Joyce does not like

appellant because he dated her older half sister in the past.

{¶ 12} On redirect, Kindra testified that she did not know whether appellant had a

gun on June 20, however, she knew he was not allowed to have a gun. On recross,

6. Kindra stated that her mother likes Prince, and has allowed him to see her children in the

past without her knowledge.

{¶ 13} Brunell Hendrickson testified that she was in the kitchen of her home on

East Oldgate Road on June 20, 2011, at approximately 8:55 a.m., when she heard six

gunshots coming from nearby Aspen Run Road. She immediately called 911 to report

the shooting. Seconds later, she heard two women screaming, followed by the sound of a

car accelerating as it drove down Aspen Run toward her street. Brunell stated she then

heard two more gunshots, and the last shot came through the wall of her house and

landed in her living room. Brunell testified that, after the bullet came into her home, she

laid down on the kitchen floor and called 911 again.

{¶ 14} Brunell said that she saw “a black man running down across the lots of the

houses directly in front of [her]” before she heard the last shots. She described the

accelerating car as “grayish looking,” and identified appellant as the driver.

{¶ 15} On cross-examination, Brunell testified that she is angry at appellant for

shooting a gun at her house, because she has a heart condition and should not be

subjected to stress. Although she denied seeing appellant shoot a gun, she stated that she

is familiar with appellant’s face, she saw him driving the gray car, and she was sure he

was the shooter. She did not remember seeing Prince with a gun.

{¶ 16} Jeremy Pruitt, Joyce’s next door neighbor, testified that he heard three

“pops” between 8:30 and 9:30 a.m. on June 20, 2011. As he picked up the phone to call

7. 911, he saw appellant, wearing jeans, a hoodie and a hat, walking down the street “to get

into a vehicle.” He also stated that another man was running down the street, and that he

saw pieces of money on the ground at the end of his own driveway. On cross-

examination, Pruitt testified that he did not see a knife. He further testified that he heard

more shots after the first three, for a total of “10 or 12 shots,” but he did not hear any

more shots after appellant drove off. He could not see whether the man who was running

had a weapon. On re-cross, Pruitt testified that he may have told police he saw a man in

a white shirt running away from a man in a hoodie.

{¶ 17} Robert Brown, a resident of South Oldgate Road, testified that on June 20,

2011, a man ran up to his house, bleeding, stating that he had been shot and asking for

assistance. While Brown and a neighbor, William Myers, tried to get the man to lay

down, he heard someone yell “nigger, you’re dead.” He stated that police arrived shortly

after his wife called 911.

{¶ 18} Brown stated there was a “big bullet hole” in the man’s arm. He did not

see a wound in the man’s leg. He could not identify appellant as the driver of the car.

Evelyn Brown, Robert’s wife, testified that she heard shots on June 20, 2011, and saw a

man running down the street. She then heard more shots, followed by someone driving

past her home at a high rate of speed.

{¶ 19} Eric Jensen testified that he lives across the street on Aspen Run Road,

“caddy-corner,” from Joyce McGill’s home. Jensen stated that he saw a “black guy in a

8. white T-shirt” being chased by a “another black guy with * * * a hoodie on” who

appeared to raise his arm and shoot at the man in the white shirt. Jensen said that, shortly

after hearing the shot, he saw a car “take off.” On cross-examination, Jensen testified

that he does not know appellant, and he did not see Prince holding a knife. On redirect,

Jensen said that he did not remember telling police he heard a woman screaming.

{¶ 20} Members of the Sandusky Police Department who testified at trial were

Lieutenants Richard Braun and Danny Lewis, Detectives Ken Nixon and Gary Wichman,

Officer Christopher Denny, and Assistant Chief John Orzech. Also testifying were Todd

Wharton and Scott Desloover.

{¶ 21} Braun testified that he was dispatched to Aspen Run Road on June 20,

2011. However, before he got to that address, he saw a gunshot victim on the ground on

Laurel Lane near South Oldgate. The man had a wound on his left arm and leg. Braun

said the gunshot victim, whom he identified as Prince, was taken to the hospital. Braun

then went to Joyce’s house, where he found shell casings on the ground, and a bullet hole

in the door of a car parked in the driveway. He also observed sandals and a knife on the

ground near the car, a place in the yard where “the dirt was kicked up,” and a blood trail

leading away from the driveway toward the injured man on Laurel Lane.

{¶ 22} On cross-examination, Braun testified that he spoke to a witness, William

Myers, who said he heard Prince and appellant yelling at each other. When the state

objected to Braun’s statement as hearsay, the defense indicated that Meyers, although

9. present, would not be asked to testify because he is a “loose-canon.” The trial court

limited Braun’s testimony to saying that he spoke to Myers, who reported hearing “a

number” of shots. On redirect, Braun testified that the knife appeared to be closed in

pictures taken at the scene.

{¶ 23} Following Braun’s testimony, a conversation occurred between defense

counsel, the prosecution and the trial court concerning appellant’s claim of self-defense.

The trial court warned defense counsel to research the issue thoroughly because, in order

to assert self-defense, appellant had to admit shooting Prince and, in addition, appellant

must present sufficient evidence to support self-defense to get the instruction. Testimony

then resumed.

{¶ 24} Nixon testified at trial that he went with Prince to the hospital after finding

him lying on the ground at 2020 South Oldgate. He identified a shirt and blue shorts that

had bullet holes as the ones Prince was wearing when he was shot. Nixon said that

Prince had bullet wounds in his left arm and left thigh. He stated that Prince had $1,265

in his pocket, and that some of the bills were “shredded” by a bullet, leaving pieces of

money scattered on the ground. Nixon stated that Prince did not identify the person who

shot him.

{¶ 25} Denny testified that he interviewed Jensen and Prewitt, who each said they

heard three shots and then saw a black male in a hoodie chasing another black male who

was wearing a white T-shirt.

10. {¶ 26} Wichman testified that appellant has a prior felony narcotics conviction

that prohibits him from possessing a firearm. He also testified that there is “bad blood”

between appellant and Prince, due to an incident in May 2011 when Prince stabbed

appellant. Wichman also testified that he interviewed Brunell Hendrickson, who was “in

hysterics” after a bullet came through her living room wall. He then went to Joyce

McGill’s house, where he saw blood on the back of a nearby car, “confetti” on the

driveway, and a bullet hole in a vehicle that was parked in the driveway. Also, he saw a

closed pocket knife on the driveway. Wichman stated that the knife had a short “locking”

blade. He also stated that Prince was more interested in the whereabouts of his money

than in telling police who shot him.

{¶ 27} Wichman testified that appellant had a “retreat zone” that would have

allowed him to get into his car without following Prince down the street. He further

testified that, if appellant had retreated, he would not have fired the shot that went into

Brunell’s home. Wichman also testified that it was possible that Prince could have

pointed a gun at appellant from the area where the pieces of money were found.

However, he stated that no guns were ever found.

{¶ 28} Lewis briefly testified that he arrested appellant on an unrelated drug

offense on October 7, 2001, which resulted in a felony conviction. Wharton, a forensic

scientist in the Firearms and Toolmark Section of the Ohio Bureau of Criminal

Identification and Investigation (“BCI”), testified that the weapon which fired at least

11. five rounds at Prince was a semi-automatic, 9mm handgun. He further testified that it is

possible all the bullets fired at Prince were from the same gun, however, the four

remaining casings were too damaged to be certain. On cross-examination, Wharton

testified that all nine bullets were 9mm Luger-type projectiles, but it was impossible to

identify the shooter from looking at the bullets. He also testified that there are too many

variables to say exactly how far a particular bullet would travel.

{¶ 29} Desloover, a Verizon Wireless employee, testified that he provided a

record of the texts between appellant and Kindra, in response to a search warrant. The

records of the texts were then admitted into evidence.

{¶ 30} Orzech testified that he was a Sandusky Police detective on June 20, 2011,

and he responded to a call for police assistance at 1033 East Oldgate, the home of Brunell

Hendricks. From a photograph, he identified a bullet hole in home’s living room wall.

He stated that the bullet taken from Brunell’s home and a fragment found in Joyce’s

driveway were both 9mm Luger caliber, and both were fired from a barrel that had five

lands and five grooves, and a right-hand twist. Orzech stated that he found a pair of

gloves, a pair of sandals and a closed knife in Joyce’s driveway. He also stated that a

groove in the lawn could have been caused by a cartridge that skipped through the grass.

He identified confetti-like pieces of money in the grass as coming from the roll of bills

that was in Prince’s pocket.

12. {¶ 31} Orzech stated that, in his opinion, the incident began in Joyce’s driveway

where four cartridge cases were found, and proceeded down the street where another shot

was fired that struck Prince, causing the money to come out of his pocket. As Prince

continued running, another shot was fired, which hit Brunell’s house. Orzech testified

that, according to his scenario, appellant would have been able to get into his vehicle and

safely retreat when Prince started running. If that would have happened, the shot that

entered Brunell’s home would not have been fired.

{¶ 32} On cross-examination, Orzech testified that the bullet hole in Prince’s

vehicle was angled such that the shot would have come from the rear of the vehicle.

Orzech disputed the defense’s argument that more than one gun could have been used,

based on the fact that all the casings could have come from the same firearm. He also

testified that police searched the entire neighborhood but did not find a gun. Orzech

stated that police could not establish that the knife on Joyce’s driveway was involved in

the incident. He also stated that the bullet that entered Prince’s vehicle must have been

fired while Prince was outside the car because it entered through the outside of the door

and lodged inside the car. He had no opinion as to how the door may have been opened

and later shut by Joyce.

{¶ 33} At the close of Orzech’s testimony, the state rested. Defense counsel made

a motion for acquittal pursuant to Crim.R. 29, which the trial court denied. Thereafter,

13. the trial court and appellant engaged in the following exchange concerning the issue of a

self-defense instruction:

Court: And the other concern that the Court brought up to the Bench

was the fact that you are asserting a self-defense apparently. The Court’s

picking that up.

And there’s [the] requirement of confession and then avoidance. In

other words, you got [sic] to admit you did the crime and then say I’m

avoid [sic] the liability for that crime because I have a defense.

The court wants your client to know, and I’m sure you’ve already told him.

Mr. Keahey, the court wants you to know if you choose to take the stand,

just because you choose to take the stand, and if, in fact, you do admit to

the crime, I don’t know if you’re going to do that or not, that does not

automatically mean you’re going to get the self-defense instruction to the

jury. There’s other criteria, other evidence that has to be proven, if you

will, or set forth in order * * * to sustain the request for that jury

instruction. So I don’t want you under any mistaken belief that just because

you admit, confess, if you will, that you avoid by getting that self, self-

defense instruction. That’s not automatic at all.

***

14. I’m sure you’ve had an opportunity to talk to your counsel. I’m

going to give you a little bit more time to talk to him before we bring the

jury in, but I definitely want you to understand just because you take the

stand and just because you admit it does not mean your’re going to get that

instruction, okay? It doesn’t mean you won’t, but it does not mean that you

will. Understand that?

Appellant: Yes, sir.

{¶ 34} Defendant, who testified on his own behalf at trial, said that Joyce did not

like him because he dated her older daughter, Angela, before he met Kindra. He also

stated that he and Kindra “got along great” after K.K. was born. Appellant said that

Prince stabbed him in May 2011 after the two men argued about how appellant treated

Prince’s children. Appellant said that he moved out of the apartment he shared with

Kindra after the stabbing, because he “feared for his life.”

{¶ 35} As to the events that occurred on June 20, 2011, appellant testified that he

initially said he would meet Kindra and K.K. at the doctor’s office. However, he

changed his mind and went to Joyce’s house because he did not want Kindra driving a car

so soon after she had surgery, and because he wanted them to go “as a family.”

Appellant said that he arrived before 9 a.m. and went inside, however, he left the house

when Joyce started to “pick on him” for not taking off his shoes. As he was walking

toward his car, Prince drove into the driveway “real fast,” causing appellant to back up

15. against the house. When Prince hopped out of the car “with a knife,” appellant “pulled

out the gun” and fired at Prince. Appellant said that when he headed toward his car, he

heard a shot. When he turned around, he saw Prince holding a gun. Appellant responded

by firing several rounds at Prince as Prince ran away. Appellant said that he got into his

car and drove off after Prince ran away.

{¶ 36} Appellant said that he would have “been dead” if he had not shot at Prince.

Appellant also said that, as he drove off, he heard Prince say “nigga, you dead.”

Appellant testified that he went to Pennsylvania after the shooting, and did not return

until three months later when he turned himself into Sandusky Police.

{¶ 37} On cross-examination by the prosecution, appellant testified that he was

imprisoned in 2002 for 17 months following a drug conviction. Consequently, he is

prohibited from possessing a firearm. Appellant also stated that he did not name Prince

as the person who stabbed him in May 2011 because he was afraid he would be killed in

retaliation. Appellant said he did not get into his car and leave when he first saw Prince

at Joyce’s house because Prince was driving fast, and he was scared. He said he “got rid

of” the gun on his way back to Sandusky from Pennsylvania, because the police in

Sandusky considered him “armed and dangerous” and he did not want to be “shot on

sight.”

{¶ 38} Appellant further testified that he could not run to his car before Prince ran

away because he would have been shot in the back. He said he did not stop shooting,

16. even though there were children in the car, because he was trying to protect himself. He

admitted bringing a firearm to Joyce’s house, even though he is not permitted to carry a

weapon. Appellant stated that Prince initiated the altercation by jumping out of the car

and coming toward him with a knife. Appellant also stated that it was Prince, not

appellant, who said “you’re dead nigga.” Appellant agreed with the prosecutor’s

statement that “Prince pulls a knife, you pulled the gun, and you shot.”

{¶ 39} At the close of appellant’s testimony, the defense rested. The state

presented no rebuttal evidence. The trial court and the parties then discussed proposed

jury instructions, during which defense counsel renewed his request for an instruction on

self-defense. In addition, defense counsel asked for an instruction as to necessity in

regard to the charge of having a weapon while under disability. After hearing arguments

from the defense and the prosecution, the trial court stated:

In looking at the facts of the case, * * * the defendant, if you will, was at

fault in creating the situation based on the testimony and text messages that

were sent. He was supposed to go to the doctor’s, and, instead, he came to

the house. He brought a firearm with him to the house.

The victim, one of the victims, Prince Hampton, ran from the defendant.

The defendant chased him. The defendant had a means of escape, his own

vehicle, which was parked across the street. * * *

17. The Court doesn’t find that the defendant - - the Court finds he did create

the – he did create the fault. He was at fault in creating the situation that

gave rise to it. Whether or not he had a bona fide belief that he was in

imminent danger of death or great bodily harm and there was no other

means of escape, the Court finds there was a means of escape and also that

he did violate his duty to retreat, and he had every opportunity to retreat.

So the court finds that the defense of self-defense, that instruction will not

be given.

{¶ 40} The trial court noted the defense’s objection to its ruling. Thereafter,

closing arguments were presented by the state and the defense, after which jury

instructions were given and the jury retired to deliberate. On September 10, 2012, the

jury returned a verdict of guilty to one count of felonious assault and one count of

attempted murder of Prince, one count of having a weapon while under disability, and

one count of improperly discharging a firearm at or into a habitation or school safety

zone. Not-guilty verdicts were returned as to felonious assault on P.H., D.J. and A.C.

The remaining charge of drug possession was later dismissed. On October 4, 2012, the

trial court sentenced appellant to serve a total of 23 years in prison.

{¶ 41} On October 19, 2012, a timely notice of appeal was filed. On December 4,

2012, this court found that the judgment of conviction was not a final, appealable order,

18. and remanded the matter to the trial court. On December 17, 2012, the trial court filed a

nunc pro tunc judgment entry in response to our mandate, and the appeal was reinstated.

{¶ 42} In his first assignment of error, appellant asserts that the trial court erred by

refusing to instruct the jury as to the affirmative defense of self-defense. In support,

appellant argues that the trial court improperly found that his testimony was not credible

and refused to give a self-defense instruction on that basis.

{¶ 43} In State v. Lillo, 6th Dist. Huron No. H-10-001,

, ¶ 15, this

court stated:

Generally, requested jury instructions should be given if they are a

correct statement of the law as applied to the facts in a given case. Murphy

v. Carrollton Mfg. Co.,

,

(1991). A

court’s instructions to a jury “should be addressed to the actual issues in the

case as posited by the evidence and the pleadings.” State v. Guster,

,

(1981). Prejudicial error is found

where, in a criminal case, a court refuses to give an instruction that is

pertinent to the case, states the law correctly, and is not covered by the

general charge. State v. Sneed,

,

(1992).

{¶ 44} Appellant correctly states that the inquiry into whether sufficient evidence

has been presented to raise an affirmative defense is a matter of law that is reviewed de

19. novo. State v. Belanger,

,

,

(3d Dist.). However, the trial court’s ultimate decision to refuse the requested jury

instructions will not be overturned on appeal absent a finding of abuse of discretion.

Lillo, supra, citing State v. Wolons,

,

(1989).

{¶ 45} In cases where the requested instruction involves an affirmative defense,

the accused must show that he or she “has introduced sufficient evidence which, if

believed, would raise a question in the minds of reasonable people concerning the

existence of that defense.” State v. Carter, 4th Dist. Ross No. 10CA3169, 2010-Ohio-

6316, ¶ 58, citing State v. Melchior,

,

, paragraph one of

the syllabus. It is the duty of the defendant to “first present sufficient evidence at trial to

warrant such an instruction.” Belanger, at ¶ 3. Such evidence is to be viewed in a light

most favorable to the defendant.

Nevertheless, the trial court may “omit any

requested instructions that are not correct statements of the law and applicable to the case

before it.”

citing State v. Scott,

,

(1986).

{¶ 46} In Ohio, “self-defense is an affirmative defense that legally excuses

admitted criminal conduct.” State v. Edwards, 1st Dist. Hamilton No. C110773, 2013-

Ohio-239, ¶ 5. To demonstrate the affirmative defense of self-defense through deadly

force, an accused must show by a preponderance of evidence that:

(1) [they were] not at fault in creating the situation giving rise to the

affray, (2) [they] had a bona fide belief that they were in imminent danger

20. of death or great bodily harm and their only means of escape from such

danger was the use of such force, and (3) [they] must not have violated any

duty to retreat or avoid the danger. State v. Robbins,

,

(1979), paragraph two of the syllabus.

{¶ 47} As to the first element, appellant testified at trial that he decided at the last

minute to drive to Joyce’s house instead of meeting Kindra and K.K. at the doctor’s

office, and he did not know that Prince would be dropping off his sons while appellant

was there. Appellant also testified that he pulled out a gun and shot at Prince because

Prince had a knife in his hand and, based on the events that occurred six weeks earlier,

appellant was afraid that Prince would stab him. Appellant stated that he did not

immediately retreat to his vehicle because Prince pulled out a gun and he was afraid he

would be shot in the back if he turned to leave.

{¶ 48} Before denying appellant’s request for a self-defense instruction, the trial

court noted that appellant unilaterally decided to pick up Kindra and K.K., and that text

messages exchanged between appellant and Kindra established a possible motive for

appellant to attack Prince. The trial court also stated that appellant had a means of

escape, which he failed to utilize. Other trial testimony established that no witnesses saw

Prince with a gun, no gun was ever recovered, and the only knife that was found at the

scene was closed and lying on the ground.

21. {¶ 49} It is undisputed that appellant and Kindra had agreed to meet at the doctor’s

office. Appellant’s stated motive for changing his mind and going to pick up Kindra and

K.K. opened the door to the trial court’s consideration of other motives, including the

content of the text messages exchanged by appellant and Kindra. In addition, appellant

testified that he carried a gun that morning despite the fact that, as a convicted felon, he is

prohibited from carrying a firearm.

{¶ 50} As to the third element, appellant’s duty to retreat, undisputed testimony

was presented that appellant arrived at Joyce’s home in a vehicle, which he parked

nearby on the street. Although appellant testified that he was afraid to turn his back on

Prince and get into the vehicle, no testimony was presented as to why appellant could not

have retreated in any other direction, or by any other method.

{¶ 51} After considering the entire record in a light most favorable to appellant,

we find that appellant failed to produce sufficient evidence to meet his burden as to the

first and third elements of the affirmative defense of self-defense. A consideration of the

second element, which required appellant to show that he reasonably believed he was in

imminent danger of death or serious bodily harm, is unnecessary. State v. Robinson,

,

(1st Dist., 1999).

{¶ 52} Based on the foregoing, we conclude that the trial court did not err or

otherwise abuse its discretion by refusing to provide the jury with a self-defense

instruction. Appellant’s first assignment of error is not well-taken.

22. {¶ 53} In his second assignment of error, appellant asserts that the trial court erred

by not instructing the jury as to the affirmative defense of necessity, as it relates to his

conviction for carrying a weapon while under disability. Citing State v. Crosby, 6th Dist.

Lucas No. L-03-1158,

, appellant argues that that he presented sufficient

evidence to support such a defense, which “excuses a criminal act when the harm which

results from compliance with the law is greater than that which results from a violation of

the law.”

{¶ 54} As set forth above, “a trial court’s determination as to whether the evidence

produced at trial warrants a particular instruction is reviewed for an abuse of discretion.”

Burns v. Adams, 4th Dist. Scioto No. 12CA3508,

. “A party must

demonstrate not merely that the trial court’s omission or inclusion of a jury instruction

was an error of law or judgment but that the court’s attitude was unreasonable, arbitrary

or unconscionable.” Freedom Steel v. Rorabaugh, 11th Dist. Lake No. 2007-L-087,

.

{¶ 55} The defense of necessity is not codified in Ohio law, however, Ohio courts

have held that the common-law elements of the defense are:

(1) the harm must be committed under the pressure of physical or

natural force, rather than human force; (2) the harm sought to be avoided is

greater than (or at least equal to) that sought to be prevented by the law

defining the offense charged; (3) the actor reasonably believes at the

23. moment that his act is necessary and is designed to avoid the greater harm;

(4) the actor must be without fault in bringing about the situation; and (5)

the harm threatened must be imminent, leaving no alternative by which to

avoid the greater harm. Dayton v. Thornsbury, 2d Dist. Montgomery Nos.

16744, 16772,

(Sept. 11, 1998).

{¶ 56} Traditionally, the defense of necessity requires pressure from physical

forces, as opposed to the defense of duress, which involves a human threat.

In this

case, appellant testified at trial that he was forced to carry a gun because he was afraid of

Prince, in spite of the fact that he was legally forbidden to do so. Accordingly, appellant

has not established that the harm in this case resulted from anything other than human

action, as opposed to a physical force. In addition, as stated in our determination of

appellant’s first assignment of error, appellant failed to establish that he was not at fault

in creating the situation that led to his decision to fire his gun, wounding Prince and

endangering the safety of children and nearby adults.

{¶ 57} On consideration of the foregoing, we find that appellant has failed to

establish the elements necessary to support a jury instruction on the affirmative defense

of necessity. Accordingly, we cannot say that the trial court abused its discretion by

refusing to give such an instruction. Appellant’s second assignment of error is not well-

taken.

24. {¶ 58} In his third assignment of error, appellant asserts that the trial court abused

its discretion by making findings of fact. Specifically, appellant argues that the trial court

usurped the function of the jury by “finding” that he came to Joyce’s house instead of

going to a doctor’s appointment, he had a gun, Prince ran away from appellant, appellant

chased Prince, appellant “had a means of escape,” appellant “could have avoided Prince,”

appellant threatened Prince, Prince had a knife, appellant “created the situation,” and

appellant “had a means of escape.”

{¶ 59} In this case, the “findings of fact” that appellant disputes were made by the

trial court in the context of determining whether appellant met his burden to go forward

with evidence of the affirmative defenses of self-defense and necessity. Consequently,

rather than making findings that bear directly on appellant’s guilt or innocence, the trial

court was discharging its duty to make preliminary determinations as to whether the

requested jury instructions were warranted. Appellant’s third assignment of error is,

therefore, not well-taken.

{¶ 60} In his fourth assignment of error, appellant asserts that the trial court erred

by denying his request for a mistrial. In support, appellant argues that the prosecutor

prejudiced the jury by stating that appellant was “scary” when no such facts were in

evidence. We disagree, for the following reasons.

{¶ 61} The trial court’s decision to grant or deny a mistrial will not be overturned

on appeal absent a finding of abuse of discretion. Burns v. Adams, 4th Dist. Scioto No.

25. 12CA3508,

, citing State v. Sage,

,

(1987). “A mistrial should only be granted where the party seeking the same

demonstrates that he or she suffered material prejudice so that a fair trial is no longer

possible.”

citing Quellos v. Quellos,

,

(8th

Dist. 1994), citing State v. Franklin,

,

(1991). “The trial

court is in the best position to determine whether the circumstances warrant the

declaration of a mistrial.” State v. Simmons, 1st Dist. Hamilton No. C-130126, 2014-

Ohio-3695, ¶ 66, citing State v. Ahmed,

,

,

, ¶ 92.

{¶ 62} The record shows that, during cross-examination, appellant stood up

several times while answering the prosecutor’s questions. At one point, the following

exchange occurred:

Question: Sit down, please.

Answer: I can’t even stand?

Question: You’re scaring me.

Court: Wait a minute. Approach.

{¶ 63} Outside the hearing of the jury, the following took place:

Prosecutor: I don’t like the way he gets up and goes like this.

Court: Okay, but you can’t do that.

Prosecutor: I know.

26. Court: You can approach and you can ask me to have him sit down.

You can’t do that.

Prosecutor: I know.

Court: I don’t want the jury being tainted.

Defense: Yeah, I –

Court: Okay? I’ll take care of it.

Defense: I’d almost ask for a mistrial for that.

Court: No, there’s no mistrial there. Your request for a mistrial is

denied. I’ll give a curative.

Ladies and gentlemen of the jury, the comment by the prosecutor is

stricken. You’re not to consider that. Continue, State of Ohio.

{¶ 64} On consideration of the foregoing, and in light of the trial court’s curative

instruction, we find that appellant has not demonstrated that he suffered material

prejudice such that a fair trial was no longer possible. Accordingly, we cannot find that

the trial court abused its discretion by denying the motion for mistrial. Appellant’s fourth

assignment of error is not well-taken.

{¶ 65} In his fifth assignment of error, appellant asserts that the trial court’s errors,

taken together, deprived him of his right to a fair trial under the constitutions of the state

of Ohio and the United States. Appellant argues that the only effective remedy in this

case is for this court to order the reversal of his conviction.

27. {¶ 66} Before considering the effect of alleged “cumulative error,” it is incumbent

on this court to find that the trial court committed multiple errors. State v. Wharton, 4th

Dist. Ross No. 09CA3132,

, citing State v. Harrington, 4th Dist.

Scioto No. 05CA3038, ¶ 57. Having determined that no such errors exist on the part of

the trial court, we find that the principle of cumulative error is inapplicable in this case.

Appellant’s fifth assignment of error is, therefore, not well-taken.

{¶ 67} The judgment of the Erie County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of the appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ James D. Jensen, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

28.