[Cite as State v. Eddy,

.]

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

STATE OF OHIO, CASE NO. 1-22-17 PLAINTIFF-APPELLEE,

v.

CALEB EDDY, OPINION

DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 21CRB01452

Judgment Affirmed

Date of Decision: November 7, 2022

APPEARANCES:

Thomas J. Lucente Jr. for Appellant

Joseph C. Snyder for Appellee Case No. 1-22-17

WILLAMOWSKI, J.

{¶1} Defendant-appellant Caleb Eddy (“Eddy”) appeals the judgment of the

Lima Municipal Court, alleging that his conviction is against the manifest weight of

the evidence and that the trial court erred in stating the law on self-defense at his

bench trial. For the reasons set forth below, the judgment of the trial court is

affirmed.

Facts and Procedural History

{¶2} Eddy and S.P. were in a relationship and resided together. Tr. 5. After

S.P. and Eddy had an argument on July 8, 2021, S.P. removed the house key from

Eddy’s key chain without his knowledge. Tr. 6. S.P. later explained that she took

this house key because Eddy had packed his belongings and because she believed

that he was about to move out of the house. Tr. 22, 24. She further testified that

she wanted him to leave but that he remained at the house that night. Tr. 22.

{¶3} On July 9, 2021, S.P. and Eddy had another argument. Tr. 5-6. At some

point, Eddy removed himself from the argument and went outside. Tr. 17. He then

came back into the house, having decided to leave the premises. Tr. 18. As he

prepared to leave, Eddy realized that the house key was missing. Tr. 18. He then

went into the bedroom to locate the house key and began rummaging through S.P.’s

purse. Tr. 18. S.P. then went into the bedroom after Eddy. Tr. 18.

{¶4} When S.P. entered into the bedroom, Eddy was facing away from her.

Tr. 8. S.P. testified that she came alongside Eddy and attempted to stop him from

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getting her house key from her purse. Tr. 7-8. She stated that Eddy pushed her

away but that she then returned to his side and reached again for her house key. Tr.

7-8. S.P. stated that Eddy then pushed her away again and stated that this second

push was more forceful than the first. Tr. 8. In response, S.P. pushed Eddy back.

Tr. 9. Eddy and S.P. then began struggling with each other. Tr. 9.

{¶5} Eddy then managed to pin S.P. down with her back on the bed and her

feet on the floor. Tr. 9. S.P. testified that she went into “defense mode” and started

trying to scratch his face. Tr. 9. She recounted, at this point, grabbing Eddy’s

testicles as “hard as * * * [she] could” because she believed “that [this] would get

him off of [her] * * *.” Tr. 10. She testified that, in response, Eddy lifted her up

off of the bed “and slam[ed her] * * * to the floor.” Tr. 10.

{¶6} S.P. testified that Eddy then “g[o]t on top of [her] * * * and pin[ned her]

* * * down.” Tr. 11. She then stated the following:

He put his knee into my right shoulder and held my left arm down to the ground with his left hand. And drew his hand back like he was going to punch me. And at that point, I quit fighting cuz I couldn’t move.

***

I completely gave up and just told him to get off of me. I just kept yelling for him to get off of me. Until he finally, after maybe, I don’t know, maybe forty seconds or so, he finally got off of me.

Tr. 11, 12. S.P. stated that she got up; grabbed her phone; went into a spare

bedroom; called 9-1-1; and reported the altercation to the dispatcher. Tr. 12-13.

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{¶7} S.P. then called her friend, Joelene Sibeneck (“Sibeneck”), and

recounted the events of that evening. Tr. 14, 25. On Sibeneck’s recommendation,

S.P. locked herself in the bathroom while Sibeneck and her husband drove to S.P.’s

house. Tr. 14, 26. Sibeneck then took S.P. from her house to a local Urgent Care

for a medical examination. Tr. 14. A police officer met S.P. at the Urgent Care and

took a statement from her about this incident. Tr. 29.

{¶8} On July 30, 2021, complaints were filed that alleged that Eddy had

committed the offense of domestic violence in violation of R.C. 2919.25(A), a

misdemeanor of the first degree, and the offense of assault in violation of R.C.

2903.13(A), a misdemeanor of the first degree. Doc. 1-2. On January 28, 2022,

both S.P. and Sibeneck testified at a bench trial on these charges. Doc. 16. Tr. 5,

25. The Defense then made Crim.R. 29 motions to challenge both charges. Tr. 31.

On January 31, 2022, the trial court issued judgment entries that found Eddy not

guilty of domestic violence under R.C. 2919.25(A) and guilty of assault in violation

of R.C. 2903.13(A). Doc. 16-17.

{¶9} Eddy then filed his notice of appeal on February 24, 2022. Doc. 18. On

appeal, he raises the following two assignments of error:

First Assignment of Error

The trial court erred when it stated the law of self-defense required defendant to retreat.

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Second Assignment of Error

Appellant’s conviction were against the manifest weight of the evidence and contrary to law.

For the sake of analytical clarity, we will consider Eddy’s second assignment of

error before his first assignment of error.

Second Assignment of Error

{¶10} Eddy argues that the trial court erred in concluding that the State

carried the burden of establishing that Eddy did not act in self-defense. He asserts

that his conviction is, therefore, against the manifest weight of the evidence.

Legal Standard

{¶11} In a manifest weight analysis, “an appellate court determines whether

the state has appropriately carried its burden of persuasion.” State v. Blanton,

,

(3d Dist. 1997). “Unlike our review of the

sufficiency of the evidence, an appellate court’s function when reviewing the weight

of the evidence is to determine whether the greater amount of credible evidence

supports the verdict.” State v. Richey,

,

(3d

Dist.), quoting State v. Plott,

,

, ¶ 73 (3d Dist.).

{¶12} Accordingly, “the appellate court sits as a ‘thirteenth juror’ * * *.”

State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting State

v. Thompkins,

,

,

(1997).

Appellate courts

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must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder ‘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. Brentlinger,

,

(3d Dist.), quoting Thompkins at 387.

State v. Schatzinger, 3d Dist. Wyandot No. 16-20-04,

.

{¶13} “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. Sullivan,

,

(3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53,

. “Only

in exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Little, 2016-

Ohio-8398,

, ¶ 27 (3d Dist.), quoting State v. Hunter,

,

,

, ¶ 119.

{¶14} Assault in violation of R.C. 2903.13(A) occurs where a person

“knowingly cause[s] or attempt[s] to cause physical harm to another * * *.” R.C.

2903.13(A). However, under Ohio law, “[a] person is allowed to act in self-

defense.” R.C. 2901.05(B)(1). “Self-defense is an affirmative defense.” State v.

Jacinto,

,

(8th Dist.). “The elements of self-

defense differ depending on whether the defendant used deadly or non-deadly force

to defend himself.” State v. Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-19-06, and

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13-19-07,

, quoting State v. Bagley, 3d Dist. Allen No. 1-13-

31,

.

{¶15} Self-defense through the use of non-deadly force is present where:

(1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the only means to protect himself from such danger was the use of force not likely to cause death or great bodily harm.

Chavez at ¶ 40, citing State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-Ohio-

4019, ¶ 10; Ohio Jury Instructions, CR Section 421.19 (Rev. Oct. 11, 2008). See

State v. Barker, 2d Dist. Montgomery No. 29227,

; State v.

Elam, 12th Dist. Butler No. CA2021-08-106,

.

{¶16} As to the first element of self-defense, “Ohio courts have long

recognized that a person cannot provoke [an] assault or voluntarily enter an

encounter and then claim a right of self-defense.” State v. Woodson, 6th Dist. Lucas

No. L-21-1068,

, quoting State v. Nichols, 4th Dist. Scioto

No. 01CA2775,

, *3 (Jan. 22, 2002). This means

the defendant must not be at fault in creating the situation that gave rise to the affray. Nichols at *9-10. This concept is broader than simply not being the immediate aggressor. Id. at *10. A person may not provoke an assault or voluntarily enter an encounter and then claim a right of self-defense. Id.; State v. Lewis, 12th Dist. Butler No. CA2019-07-128,

,

.

State v. Elam, 12th Dist. Butler No. CA2021-08-106,

. The

defendant must not have “engaged in such wrongful conduct toward his assailant

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that the assailant was provoked to attack the defendant.” State v. Gillespie,

,

,

(2d Dist.).

{¶17} R.C. 2901.05 places the burden on the State “to disprove at least one

of the elements of self-defense beyond a reasonable doubt.” State v. Cervantes, 3d

Dist. Henry No. 7-21-06,

, quoting State v. Carney, 10th Dist.

Franklin No. 19AP-402,

.

‘[U]nder the current version of R.C. 2901.05(B), the state is not required to prove the defendant did not act in self-defense until the defendant introduces evidence that tends to support they acted in self-defense.’ State v. Walker, 6th Dist. Lucas No. L-20- 1047,

,

. ‘In other words, the defendant maintains the burden of production on their self- defense claim before the state inherits the burden of persuasion.’

citing State v. Petway, 11th Dist. Lake No. 2019-L-124,

,

.

Cervantes at ¶ 60. “The elements of self-defense are cumulative, and a defendant’s

claim of self-defense fails if any one of the elements is not present.” State v. Ridley,

1st Dist. Hamilton No. C-210458,

.

Legal Analysis

{¶18} Neither party disputes that the standard for self-defense through non-

deadly force is applicable in this case. On appeal, Eddy argues that the State

“provided no evidence” that disproves an element of self-defense through the use of

non-deadly force. Appellant’s Brief, 9. In response, the State argues that it

disproved the first element of this affirmative defense. This first element requires

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that the defendant “not [be] at fault in creating the situation [that] g[ave] rise to the

affray * * *.”

.

{¶19} At trial, the State called S.P. as a witness. Tr. 5. She testified that,

immediately preceding the altercation, Eddy had gone into the bedroom and was

trying to get her house key from a key ring that was in her purse. Tr. 6. S.P. stated

that she “walked to the side of him [Eddy] to try to reach around to grab * * * [her]

keys.” Tr. 8. She testified that Eddy then pushed her away. Tr. 8. S.P. testified

that she returned to Eddy’s side and that he then shoved her away. Tr. 8. She stated

that Eddy applied more force the second time that he pushed her. Tr. 8. S.P. said

that she then pushed Eddy back and that the “fight escalated” with the two of them

“throwing punches at each other.” Tr. 9.

{¶20} S.P.’s testimony indicates that Eddy initiated the physical altercation

as he was the first one to use force in this case. Tr. 6, 8. Her testimony also indicates

that Eddy increased the amount of force that he used on her when he shoved her a

second time. Tr. 8. This testimony could persuade a reasonable finder of fact that

Eddy “was at least partially at fault for creating the situation giving rise to the affray

* * *.”

. See

. See also State v.

Clemmons, 2d Dist. Montgomery No. 23237,

, ¶ 43; State v.

Garrison, 9th Dist. Summit No. 12676, 12746,

, *1; State v. McElroy,

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11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116,

.1

Since the State only needs to carry the burden of persuasion on one element of self-

defense, we need not consider the other elements of self-defense in this analysis.

{¶21} Accordingly, we find Eddy’s argument—that the State “provided no

evidence” to disprove an element of self-defense through non-deadly force—to be

without merit. Appellant’s Brief, 9. Having examined the record, we conclude that

the evidence presented in this case does not weigh heavily against the trial court’s

determination that the State disproved at least one element of self-defense. Thus,

Eddy has failed to establish that his conviction is against the manifest weight of the

evidence. His second assignment of error is overruled.

First Assignment of Error

{¶22} Eddy argues that the trial court incorrectly applied the legal standard

for self-defense through deadly force instead of the legal standard for self-defense

through non-deadly force.

Legal Standard

{¶23} R.C. 2901.01(A)(2) defines “Deadly Force” as “any force that carries

a substantial risk that it will proximately result in the death of any person.” R.C.

2901.01(A)(2). See State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-

1 We are aware that Garrison and McElroy address the application of self-defense through deadly force. Garrison, supra, at *1;

. However, the first element for self-defense through deadly force and the first element for self-defense through non-deadly force are the same.

. Both require that “the accused was not at fault in creating the situation giving rise to the affray * * *.”

Thus, the examination of fault in these cases shapes our understanding of how fault should be analyzed where an argument for self-defense is raised.

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Ohio-6541, ¶ 21 (“[T]he use of nondeadly force, by definition, presents no risk of

loss of life * * *.”). Self-defense through the use of deadly force is applicable as an

affirmative defense where:

(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.

Chavez at ¶ 39, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-

1047, ¶ 14. In contrast, self-defense through the use of non-deadly force is

applicable as an affirmative defense where:

(1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the only means to protect himself from such danger was the use of force not likely to cause death or great bodily harm.

Chavez at ¶ 40. See also State v. Jordan, 1st Dist. Hamilton No. C-210603, 2022-

Ohio-2566, ¶ 56. Thus, “there is no duty to retreat in cases involving non-deadly

force.” (Emphasis sic.)

citing State v. Brown,

,

(2d Dist.).

Legal Analysis

{¶24} In this case, after the bench trial had concluded, the trial court analyzed

S.P.’s testimony. The trial court noted that “he [Eddy] did not have to pick her

[S.P.] up and slam her on the floor; that, “[w]hen he [Eddy] was on top of her, he

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could’ve let her up and walked away”; that “there were times when the defendant

was in control of the situation and did not walk away”; and that Eddy “knew that *

* * at any point in time, he could walk away.” Tr. 47-48. Eddy argues that these

statements indicate that the trial court believed that he had a duty to retreat in this

case and that the trial court, therefore, incorrectly applied the legal standard for self-

defense through deadly force in this case.

{¶25} However, these identified statements, in fact, represent the application

of the legal standard for self-defense through non-deadly force to the circumstances

of this case. The contents of the Ohio Jury Instructions (“OJI”) show the connection

of these statements to the first element of self-defense through non-deadly force.

Ohio Jury Instructions, CR Section 421.19 (Rev. Dec. 4, 2021). The OJI for self-

defense through non-deadly force reads, in relevant part, as follow:

6. AT FAULT. The defendant did not act in (self-defense) (defense of his/her residence) if the state proved beyond a reasonable doubt that the defendant was at fault in creating the (situation) (incident) (argument) that resulted in the injury. The defendant was at fault if the defendant was the initial aggressor and

(A) (insert name of victim[s]) did not escalate the (situation) (incident) (argument) by being the first to use or attempt to use (non-deadly force) (deadly force);

(B) provoked (insert name of victim[s]) into using force;

(C) did not withdraw from the (situation) (incident) (argument);

***

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(Emphasis added.)

In support of Section 6(C) of this instruction, OJI cites to

the Ohio Supreme Court’s decision in State v. Melchior, which states the following:

Even though the accused may in the first instance have intentionally brought on the difficulty and provoked the occasion, yet his right of self-defense will revive and his actions will be held justifiable upon the ground of self-defense in all cases where he has withdrawn from the affray or difficulty in good faith as far as he possibly can, and clearly and fairly announced his desire for peace.

State v. Melchior,

,

(1978), quoting 1

Wharton’s Criminal Law and Procedure 504-505, Section 232. See State v.

Galluzzo, 2d Dist. Champaign No. 99CA25,

, *3 (Mar. 30, 2001);

State v. Ferrell,

,

(10th Dist.).2 In the case

presently before us, the trial court appears to have been examining this aspect of the

first element for self-defense through non-deadly force.

{¶26} Further, in several of the statements identified above, the trial court

was also considering the extent to which the force used by Eddy was applied in self-

defense. Under R.C. 2901.05(B)(2), “the prosecution must prove beyond a

reasonable doubt that the accused person did not use the force in self-defense.” R.C.

2901.05(B)(2). See Dublin v. Starr, 10th Dist. Franklin No. 21AP-173, 2022-Ohio-

2298, ¶ 38. The State can carry the burden of disproving the third element of self-

defense through non-deadly force and by establishing that “the defendant used more

2 Melchior and Ferrell are cases that address self-defense through deadly force.

;

. However, as in the Ohio Jury Instructions in CR 421.19, Galluzzo applies the reasoning of Melchior in the context of self-defense through non-deadly force. Galluzzo, supra, at *1-3.

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force than was reasonably necessary to defend against the imminent danger of

bodily harm.”

. State v. Jordan, 1st Dist. Hamilton No. C-

210603,

; State v. Myers, 5th Dist. Ashland No. 21-COA-025,

; Ohio Jury Instructions CR Section 421.19 (Rev. Dec. 4,

2021). Thus, the considerations about the amount of force employed by Eddy are

not irrelevant to the third element of a self-defense through non-deadly force

analysis and are not an indication that the incorrect legal standard was applied in

this case.

{¶27} Finally, under the first assignment of error, we concluded that the State

disproved the element that requires a defendant “not [to have] be[en] at fault in

creating the situation giving rise to the affray.”

. Because

the first element of self-defense through deadly force and the first element of self-

defense through non-deadly force are identical, the application of either of these two

legal standards would yield the exact same result under the facts of this particular

case.

Accordingly, we find this argument to be unpersuasive and ultimately

inconsequential.

{¶28} In conclusion, the trial court nowhere indicated that it believed that the

legal standard for self-defense through deadly force was applicable or that Eddy had

a duty to retreat in this case. The statements identified by Eddy, in fact, represent

the application of the legal standard for self-defense through non-deadly force to the

circumstances of this case. Having examined the record in its entirety, we find no

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indication that the trial court applied the incorrect legal standard for self-defense in

this case. Eddy’s first assignment of error is overruled.

Conclusion

{¶29} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Lima Municipal Court is affirmed.

Judgment Affirmed

ZIMMERMAN, P.J. and MILLER, J., concur.

/hls

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