[Cite as State v. Taylor,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28668 : v. : Trial Court Case No. 2019-CR-2725 : ANTWANETTE J. TAYLOR : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 23rd day of December, 2020.

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MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KATHRYN L. BOWLING, Atty. Reg. No. 0084442, 120 West Second Street, Suite 1715, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Antwanette J. Taylor appeals from her conviction for improperly handling

firearms in a motor vehicle under R.C. 2923.16(A). She contends that the trial court erred

by failing to instruct the jury that it could consider self-defense as a defense to this charge.

We agree, so we reverse.

I. Factual and Procedural Background

{¶ 2} This case arises from an incident involving Taylor, Timothy Beasley, and

Andrea Hogan (Beasley’s girlfriend and Taylor’s friend). While Taylor was sitting in her

car with Hogan, Taylor shot Beasley, who was standing near the driver’s side door,

seriously injuring him. From the trial testimony of these three, the following basic narrative

emerged.

{¶ 3} Early in the evening of August 16, 2019, Taylor received a phone call from

Hogan telling her that Beasley had beaten her, again, and she had jumped out of her car

that he was driving. Hogan asked Taylor to pick her up and take her home. Taylor picked

Hogan up and drove to Hogan’s house, where Beasley also lived. Beasley was there. He

approached Taylor’s car, and he and Hogan started arguing. When Beasley walked off

down the street, possibly to where he had secretly parked Hogan’s car, Hogan told Taylor

to follow him because she had left her phone and purse in her car. Taylor slowly followed

the walking Beasley with her car while Hogan hung out the window arguing with him.

{¶ 4} Beasley started throwing cement blocks or rocks at the car. Taylor stopped,

opened her door (because the window didn’t work), and told him to stop it. Beasley then

stepped toward the car, and Taylor said she thought she saw him pull out a gun. Taylor,

a concealed-carry (CCW) licensee, was wearing a handgun in a holster on her hip. She

drew the gun and shot Beasley twice. Hogan jumped out of the car and went to aid -3-

Beasley. Taylor called 911 and told the dispatcher what had happened. Hogan and

Beasley denied he had a gun, and a gun was never found.

{¶ 5} Taylor admitted that she shot Beasley. But she said that she did so in self-

defense, insisting that Beasley had a gun. Taylor also testified at the trial that, two years

before, Beasley had pulled a gun on her when she picked up Hogan: “Me and Andrea

was going to go look for a job and I came to get her. And he said, if you let her in this car,

I’m gonna shoot this car up.” (Tr. 579.)

{¶ 6} As a result of the August 16, 2019 incident, Taylor was charged with

discharge of a firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3);

felonious assault causing serious physical harm, in violation of R.C. 2903.11(A)(1);

felonious assault with a deadly weapon causing physical harm, in violation of R.C.

2903.11(A)(2); and improperly handling firearms in a motor vehicle, in violation of R.C.

2923.16(A). All but the improper-handling charge included a firearm specification.

{¶ 7} A week-long trial was held in November 2019. The day before the trial began,

Taylor filed a request that the court instruct the jury on the law of self-defense and

submitted proposed instructions. After the close of all the evidence, the trial court ruled,

without explanation, that it would instruct the jury on self-defense for all the offenses

except improper handling. That is what the court did, telling the jury that “[s]elf-defense is

not a defense to [the] count for improperly handling a firearm in a motor vehicle.” (Tr.

767.) The jury found Taylor not guilty of all but the improper-handling offense. For that

offense, she was sentenced to up to five years of community control.

{¶ 8} Taylor appeals.

II. Analysis -4-

{¶ 9} The sole assignment of error alleges:

The trial court erred in failing to instruct the jury that self defense applies to

improper handling under R.C. 2923.16(A).

{¶ 10} “[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,

,

(1990), paragraph

two of the syllabus. We review a trial court’s refusal to submit a requested jury instruction

for “an abuse of discretion under the facts and circumstances of the case.” State v.

Wolons,

,

(1989).

Self-defense as a defense to the improper-handling charge

{¶ 11} We first consider whether Taylor could raise self-defense against the charge

of improperly handling firearms in a motor vehicle under R.C. 2923.16(A), which prohibits

a person from “discharg[ing] a firearm while in or on a motor vehicle.”

{¶ 12} R.C. 2901.05(B)(1) states categorically that “[a] person is allowed to act in

self-defense[.]” It goes on to say that self-defense can be an affirmative defense “at the

trial of a person who is accused of an offense that involved the person’s use of force

against another.” Here, Taylor was charged with the improper-handling offense because

while in her car she fired her handgun at Beasley. Plainly, Taylor was accused of an

offense that “involved” her use of force against another. Consequently, she could raise

self-defense against the charge. In our view, this makes sense, because if an attacker is

threatening bodily harm or death to a person in a vehicle, and the person is otherwise

authorized to have the weapon in the vehicle, that person should be entitled to use deadly -5-

force in self-defense, and that person should not have to jump out of the vehicle before

protecting herself.

{¶ 13} The State argues that the improper-handling charge did not involve the use

of force, because the offense has no force element. But the terminology “accused of an

offense that involved the person’s use of force” does not mean accused of an offense an

element of which is the use of force. The use of the past tense “involved” and the use of

the definite article “the” suggest that the statute refers to the particular wrongful act

supporting the charge in the case. If the statute used the present tense and used the

indefinite article, the State might have a point.

{¶ 14} Furthermore, we contrast an improper-handling charge under division (A)

of R.C. 2923.16 with a charge under division (B) of the statute. Division (B) prohibits

having a loaded gun in a vehicle that is accessible to the driver or a passenger. But

division (B) does not apply to a person, like Taylor, who is carrying a valid concealed

handgun license. R.C. 2923.16(F)(5). Unlike the act of discharging a firearm while in a

vehicle, the wrongful act in division (A), it is hard to conceive of a set of facts in which

simply possessing a loaded gun in a vehicle would involve the use of force, as prohibited

in division (B). In this case, if Taylor instead had been charged under division (B), simply

having the loaded weapon in the vehicle (without a handgun license), we would likely

agree that self-defense could not be raised.

{¶ 15} We also find it inconsistent for the trial court to give the self-defense

instruction for the charge of discharge of a firearm on or near prohibited premises under

R.C. 2923.162(A)(3), which prohibits “[d]ischarg[ing] a firearm upon or over a public road

or highway,” but not to give the instruction for the charge under R.C. 2923.16(A) of -6-

improper handling. Both prohibit discharging a firearm—the only difference is that one

prohibits doing so “upon or over a public road or highway” and the other prohibits doing

so “while in or on a motor vehicle.” We do not see why self-defense can be raised against

one charge but not the other.

Evidence of self-defense against the improper-handling charge

{¶ 16} Next, we consider whether Taylor raised self-defense successfully, that is,

whether she introduced sufficient evidence that she acted in self-defense.

{¶ 17} “A trial court need not instruct the jury where there is insufficient evidence

to support an issue. In reviewing a record to ascertain whether sufficient evidence exists

to support the giving of an instruction, an appellate court should determine whether the

record contains evidence from which reasonable minds might reach the conclusion

sought by the instruction.” Goldfuss v. Davidson,

,

(1997). See also State v. Melchior,

,

(1978),

paragraph one of the syllabus (applying this standard to whether a defendant has

successfully raised an affirmative defense under R.C. 2901.05).

{¶ 18} R.C. 2901.05(B)(1) requires that there be “evidence presented that tends to

support that the accused person used the force in self-defense.” “To establish self-

defense, a defendant must introduce evidence showing that: (1) [s]he was not at fault in

creating the violent situation; (2) [s]he had a bona fide belief that [s]he was in imminent

danger of bodily harm; and (3) [s]he did not violate any duty to retreat or avoid the danger.”

State v. Brown,

,

(2d Dist.), citing State v. Thomas,

,

(1997), citing State v. Williford,

,

(1990). (Other citation omitted.) -7-

{¶ 19} Given that the trial court instructed the jury on self-defense for the

discharge-of-a-firearm and felonious-assault offenses, the court must have concluded

that Taylor presented sufficient evidence of self-defense as to those offenses. That is, the

court necessarily determined that there was sufficient evidence that Taylor was not at

fault in creating the violent situation, had a bona fide belief that she was in imminent

danger of bodily harm, and did not violate any duty to retreat or avoid the danger. All the

charged offenses were based on the same act: Taylor shooting Beasley from inside her

car. If the evidence were sufficient to show that Taylor acted in self-defense when she

committed the other offenses—especially the discharge-of-a-firearm offense—the

evidence also must have been sufficient to show that Taylor acted in self-defense when

she committed the improper-handling offense.

{¶ 20} The State argues that any error was harmless because the evidence shows

overwhelmingly that Taylor did not act in self-defense. As an initial matter, we point out

that the State did not cross-appeal the trial court’s giving of the self-defense instruction

on the other three offenses. The jury found Taylor not guilty on the charges for which it

was given the self-defense instruction. We cannot say that if the jury also had been given

the self-defense instruction as to the improper-handling offense, it would still have found

her guilty on that charge.

Preservation of this issue for appeal

{¶ 21} Lastly, we consider whether, as the State argues, Taylor waived her

objection to the trial court’s decision not to give the self-defense instruction for the

improper-handling offense. -8-

{¶ 22} The Ohio Supreme Court has said that “[a] party does not waive his

objections to the court’s charge by failing to formally object thereto (1) where the record

affirmatively shows that a trial court has been fully apprised of the correct law governing

a material issue in dispute, and (2) the requesting party has been unsuccessful in

obtaining the inclusion of that law in the trial court’s charge to the jury.” Wolons,

,

, paragraph one of the syllabus (construing Crim.R. 30[A]).

{¶ 23} We relied on the above-quoted paragraph in State v. Fine, 2d Dist. Miami

No. 09-CA-32,

. In that case, the trial court had misstated the elements

of a section of a local property maintenance code in its instructions to the jury and the

defendant had not objected. On appeal, we found that the defendant had submitted a

proposed jury instruction before trial that correctly stated the law. We concluded that

“Defendant notified the trial court of the correct law, but was unsuccessful in obtaining the

inclusion of the correct law in the trial court’s instruction to the jury. Defendant therefore

preserved the right to assign as error on appeal the trial court’s incorrect jury instruction.”

Id. at ¶ 21.

{¶ 24} The Third District, citing Fine, reached the same conclusion in State v. Nye,

,

(3d Dist.). The trial court had failed to properly instruct

the jury on self-defense, failing to give an instruction on the rebuttable presumption of

self-defense. The defendant had not objected. On appeal, the appellate court found that

the defendant had submitted proposed jury instructions that correctly stated the law,

including the rebuttable presumption. The court concluded that, by doing so, the

defendant had “preserved the issue for appeal.” Id. at ¶ 26. -9-

{¶ 25} Here, Taylor requested that the trial court give a self-defense instruction for

all the charged offenses and submitted proposed instructions. The trial court ruled that it

would give a self-defense instruction for all the offenses except improper handling. Taylor

did not object. But Taylor’s proposed instruction stated the law correctly in that it did not

exclude self-defense as a defense to the improper-handling charge. Accordingly, she

correctly notified the trial court that self-defense is a defense to the charge of improper

handling, but the trial court failed to so instruct the jury. We conclude that Taylor preserved

the issue for appeal.

III. Conclusion

{¶ 26} The trial court prejudicially erred by failing to instruct the jury that self-

defense is a defense to the charge of improperly handling firearms in a motor vehicle

under R.C. 2923.16(A). The sole assignment of error is sustained. The trial court’s

judgment is reversed, and the case is remanded for further proceedings consistent with

this opinion.

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TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Kathryn L. Bowling Hon. Timothy N. O’Connell