State v. Bender

2024 Ohio 1750, 243 N.E.3d 713

• Court: Ohio Court of Appeals
• Decided: May 6, 2024
• Docket: 14-23-12
• Status: Published

Opinion

[Cite as State v. Bender, 2024-Ohio-1750.]

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

STATE OF OHIO, CASE NO. 14-23-12 PLAINTIFF-APPELLEE,

v.

ROSSTIN GUY BENDER, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2022-CR-0106

Judgment Affirmed

Date of Decision: May 6, 2024

APPEARANCES:

Alison Boggs for Appellant

David W. Phillips for Appellee Case No. 14-23-12

ZIMMERMAN, J.

{¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March

22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.

For the reasons that follow, we affirm.

{¶2} This case stems from an April 29, 2022 altercation between Bender and

the victim, B.H., during which Bender stabbed B.H. with a knife nine times. On

April 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her

brother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star

Mentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to

“see and enjoy for a campfire” the landscape lighting that they installed in their

backyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept

getting kicked over and kicked down, stepped on[, so B.H.] asked several times to

please watch the lights.” (Id. at 37). According to B.H., when he and Bender were

“bickering back and forth about the lights,” Bender discharged a firearm into the

ground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun

into the ground * * * to diffuse the situation.” (Id. at 83).

{¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]

that the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after

B.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer

to “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked

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if [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender

then traversed 15-to-20 feet to reach him. However, before Bender could get to

B.H., Faith “tried to come in the middle between [them] to put her arms out and

separate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit

[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.

Bender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling

[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed

until he tried to stand.

{¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on

Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),

(D)(1)(a), second-degree felonies, and Count Three of using weapons while

intoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On

May 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts

alleged in the indictment.

{¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.

12.2 stating that he intended

to present evidence that on April 22, 2022 [sic], the alleged victim * * * punched [Bender] in the face without justification and used his forearm to compress [Bender’s] throat while on the ground to the point he could not breathe; and that [Bender] had reasonable grounds to believe, and honestly believed, he was imminent or immediate danger of death or great bodily harm, at the time he defended himself with a knife.

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(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to

Bender’s notice of self-defense. That same day, the State filed a motion in limine

requesting that the trial court prevent Bender “from introducing specific instance

[sic] of conduct by the victim in this matter unless and until [Bender] establishes

those instances of conduct are relevant and otherwise admissible to his claim of self-

defense.” (Doc. No. 48).

{¶6} On January 31, 2023, the State filed another motion in limine requesting

that the trial court prevent Bender “from introducing specific instances of conduct

to prove the victim was the initial aggressor in support of his claim of self-defense.”

(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to

the State’s motion in limine. That same day, Bender requested that the trial court

instruct the jury on self-defense and the inferior-degree offense of aggravated

assault.

{¶7} The case proceeded to a jury trial on February 6-8, 2023. On February

8, 2023, the jury found Bender guilty of the counts alleged in the indictment.

{¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term

of five years in prison to a maximum term of seven and one-half years in prison on

Count One and 180 days in jail on Count Three. (Doc. No. 91). The trial court

ordered that Bender serve the terms concurrently. Further, the trial court merged

Counts One and Two for purposes of sentencing.

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{¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven

assignments of error for our review. For ease of our discussion, we will begin by

discussing Bender’s first and sixth assignments of error together; followed by his

second assignment of error; then together his third, fourth, and fifth assignments of

error; and finally his seventh assignment of error.

First Assignment of Error

The Jury Lost Its Way When Reviewing The Evidence Presented For Guilt Contrasted With The Evidence Of Self-Defense, Resulting In A Verdict That Is Against The Manifest Weight Of The Evidence.

Sixth Assignment of Error

The Trial Court Erred When It Overruled Appellant’s Motion For A Criminal Rule 29 Acquital [sic].

{¶10} In his first and sixth assignments of error, Bender argues that his

felonious-assault convictions are based on insufficient evidence and are against the

manifest weight of the evidence. On appeal, Bender does not dispute that the State

proved the elements of felonious assault. Rather, Bender contends that his

felonious-assault convictions are based on insufficient evidence and are against the

manifest weight of the evidence because he “presented evidence by a preponderance

of the evidence that he acted in self-defense, and the State failed to prove beyond a

reasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).

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Standard of Review

{¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment

of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a

conviction of such offense or offenses.” Consequently, “[a] motion for acquittal

under Crim.R. 29(A) is governed by the same standard as the one for determining

whether a verdict is supported by sufficient evidence.” State v. Tenace, 109 Ohio

St.3d 255, 2006-Ohio-2417, ¶ 37.

{¶12} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33.

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

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(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”).

{¶13} On the other hand, 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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (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,

10 Ohio St.2d 230, 231 (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, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

Sufficiency of the Evidence

{¶14} As an initial matter, even though Bender challenges the sufficiency

and the weight of the evidence supporting the jury’s finding of guilt as to the

felonious-assault charge under Count Two of the indictment, we need not address

that argument. Accord State v. Sheldon, 3d Dist. Hardin No. 6-18-07, 2019-Ohio-

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4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and

there is sufficient evidence to support the offense on which the state elects to have

the defendant sentenced, the appellate court need not consider the sufficiency [or

weight] of the evidence on the count that is subject to merger because any error

would be harmless’ beyond a reasonable doubt.” Id., quoting State v. Ramos, 8th

Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14.

{¶15} In this case, error, if any, with respect to the sufficiency or weight of

the evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge

under Count Two is harmless beyond a reasonable doubt because it was merged

with Count One. Accord id. at ¶ 12; Ramos at ¶ 13. In other words, Bender was not

convicted of the felonious-assault offense alleged under Count Two because the trial

court merged that offense for purposes of sentencing. Accord Sheldon at ¶ 12.

Indeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires

both a finding of guilt and a sentence. Ramos at ¶ 16. For these reasons, we need

not address any arguments challenging the sufficiency or weight of the evidence

regarding the jury’s finding of guilt as to Bender’s felonious-assault charge under

Count Two. Accord Sheldon at ¶ 12; Ramos at ¶ 13, 18.

{¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-

evidence argument as it relates to his felonious-assault conviction under Count One.

On appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion

because the State failed to prove beyond a reasonable doubt that he did not act in

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self-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as

to self-defense is inappropriate. Accord State v. Bagley, 3d Dist. Allen No. 1-13-

31, 2014-Ohio-1787, ¶ 10; State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-

4562, ¶ 27.

{¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the

accused bears the burden of proving it by a preponderance of the evidence.” Bagley

at ¶ 11. “However, effective March 28, 2019, the General Assembly modified

Ohio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove

beyond a reasonable doubt that the accused did not act in self-defense.” State v.

Ballein, 12th Dist. Fayette No. CA2021-10-022, 2022-Ohio-2331, ¶ 30. Currently,

“[e]vidence as to all elements of self-defense must be presented at trial in order for

a defendant to be acquitted, but to overcome the claim, the state need only disprove

one element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.

“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted

by a preponderance of the evidence, provided that the prosecution’s burden of proof

remains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,

quoting R.C. 2901.05(B)(4).

{¶18} Nevertheless, “there is no due-process right to a presumption of an

affirmative defense such as self-defense.” Messenger, 171 Ohio St.3d 227, 2022-

Ohio-4562, at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the

amendment to R.C. 2901.05, the absence of self-defense is not an essential element

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of any offense that the state carried the burden of proving at trial.” Ballein at ¶ 36.

See also State v. Messenger, 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶

43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)

indicating that by shifting the burden of proof on the affirmative defense of self-

defense, the General Assembly intended to transform the absence of self-defense

into an essential element of a criminal offense”). Consequently, “[Bender’s] claim

of self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29

analysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light

of his] self-defense claim.” Ballein at ¶ 36. Therefore, we will address Bender’s

self-defense argument only in our analysis of the manifest weight of the evidence.

Id.

Manifest Weight of the Evidence

{¶19} Bender was convicted of felonious assault in violation of R.C.

2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall

knowingly * * * [c]ause serious physical harm to another * * * .” R.C.

2903.11(A)(1). Bender does not dispute that the State proved the elements of that

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

not act in self-defense.

{¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-

defense has the burden of production—that is, the burden of producing evidence

that ‘tends to support’ his use of force in defending himself.” State v. Estelle, 3d

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Dist. Allen, 2021-Ohio-2636, ¶ 18. Thus, “if evidence is presented ‘that tends to

support’ that the defendant used the force in self-defense, the prosecution must

prove beyond a reasonable doubt that the accused did not act in self-defense.”

(Emphasis sic.) State v. Flory, 3d Dist. Van Wert No. 15-20-02, 2020-Ohio-5136,

¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the

state,’ but ‘the burden of production for * * * self-defense[ ] remains with the

defendant.’” (Emphasis sic.) State v. Green, 3d Dist. Marion No. 9-22-13, 2023-

Ohio-4360, ¶ 104, quoting Messenger, 2021-Ohio-2044, at ¶ 44.

{¶21} “Self-defense is an affirmative defense that, if proved, relieves a

defendant of criminal liability for the force that the defendant used.” Ballein at ¶

43. “The elements of self-defense differ depending on whether the defendant used

deadly or non-deadly force to defend himself.” Bagley, 2014-Ohio-1787, at ¶ 15.

Deadly force is “any force that carries a substantial risk that it will proximately

result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a

strong possibility, as contrasted with a remote or significant possibility, that a

certain result may occur or that certain circumstances may exist.” R.C.

2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife

constitutes the use of deadly force.” State v. Harding, 2d Dist. Montgomery No.

24062, 2011-Ohio-2823, ¶ 15.

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

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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.”

Bagley at ¶ 16, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-

1047, ¶ 14. Generally, “a person is privileged only to ‘use as much force as is

reasonably necessary to repel [an] attack.’” State v. Crowe, 3d Dist. Allen No. 1-

19-12, 2019-Ohio-3986, ¶ 16, quoting State v. Shine-Johnson, 10th Dist. Franklin

No. 17AP-194, 2018-Ohio-3347, ¶ 61.

{¶22} “[T]he State must ‘disprove at least one of the elements of self-defense

beyond a reasonable doubt.’” State v. Passmore, 3d Dist. Hancock No. 5-22-39,

2023-Ohio-3209, ¶ 29, quoting State v. Carney, 10th Dist. Franklin No. 19AP-402,

2020-Ohio-2691, ¶ 31. “‘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.’”

Id., quoting State v. Ridley, 1st Dist. Hamilton No. C-210458, 2022-Ohio-2561, ¶

15.

{¶23} On appeal, Bender contends that the evidence that he presented at trial

that he acted in self-defense is weightier than the evidence presented by the State

that he did not. In support of this argument, Bender points to the inconsistencies of

B.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the

State’s evidence regarding the logistics of the fight is contrary to [findings of the

emergency room doctor who B.H.], creating doubt on the credibility of its witnesses

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in their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the

placement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender

and Mr. Bender doing whatever he could to get [B.H.] off of him because he was

being choked.” (Id. at 11). Consequently, Bender argues that the weight of the

evidence supports that he acted in self-defense. In other words, Bender contends

that his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s

version.

{¶24} “Although we review credibility when considering the manifest

weight of the evidence, the credibility of witnesses is primarily a determination for

the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671,

¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier

of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.’” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-

2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81

(1984).

{¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s

testimonies conflict with the medical evidence, “we are mindful of the jury’s

‘superior first-hand perspective in judging the demeanor and credibility of

witnesses.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33,

quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 125.

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Critically, it is well within the province of the trier-of-fact to determine the

credibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the

prerogative to find Bender’s version of events not to be truthful. Accord State v.

Chavez, 3d Dist. Seneca No. 13-19-05, 2020-Ohio-426, ¶ 46. Indeed, the trier of

fact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or

Bender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and

reject the rest. Accord id.

{¶26} Even so, notwithstanding Bender’s contention that the weight of the

evidence suggests that he acted in self-defense because the medical evidence

supports his version of events, the balance of the State’s evidence weighs against

Bender’s self-defense claim. In other words, the weight of the evidence reflects that

Bender was at least partially at fault in creating the situation giving rise to the affray.

Indeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.

by inviting B.H. to fight. The record further reflects that Bender exceeded the force

reasonably necessary for self-defense during the fight. See Martin v. State, 8th Dist.

Cuyahoga No. 110919, 2022-Ohio-2580, ¶ 28 (concluding “that Martin voluntarily

entered the encounter by proceeding to the police station parking lot and that he

exceeded the force reasonably necessary for self-defense by using a deadly

weapon”).

{¶27} To begin with, Bender bore the initial burden of production under the

first element of a self-defense claim to demonstrate that he was not at fault for

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creating the violent situation. Accord State v. Canankamp, 3d Dist. Auglaize No.

2-22-02, 2023-Ohio-43, ¶ 39. “[T]he first element of a self-defense claim provides

that the defendant must not be at fault in creating the situation that gave rise to the

affray.” State v. Elam, 12th Dist. Butler No. CA2021-08-106, 2022-Ohio-1895, ¶

14. See also State v. Woodson, 6th Dist. Lucas No. L-21-1068, 2022-Ohio-2528, ¶

82 (“‘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.’”), quoting

State v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002 WL 126973, *3 (Jan. 22,

2002) “This concept is broader than simply not being the immediate aggressor.”

Elam at ¶ 14. “A person may not provoke an assault or voluntarily enter an

encounter and then claim a right of self-defense.” Id. “Ohio courts have long

recognized that a defendant is at fault in creating the situation giving rise to the

affray when the defendant chooses to confront the victim or knowingly go to a place

where the victim will be, even when the defendant’s action was otherwise

completely lawful.” Id. at ¶ 15.

{¶28} In this case, the State presented the testimony of B.H. and Faith, who

testified that Bender was the initial aggressor and that he voluntarily entered into

the fight with B.H. by inviting B.H. to fight. Accord State v. Kean, 10th Dist.

Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 118 (specifying that “[b]oth of the

state’s witnesses contradicted appellant’s version, testifying Barnett and appellant

willingly met up in the middle of the street and [the appellant] began to throw

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punches”). See also Elam at ¶ 15 (“Even if [the victim] grabbed appellant by the

neck and pushed her against the house and, under appellant’s version, appellant did

not throw the first punch, the trial court did not err in finding that appellant was at

fault in creating the situation.”).

{¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,

Bender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,

Vol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender

traversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to

intercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.

asked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”

(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.

“punched him back.” (Id. at 130).

{¶30} Moreover, even though Bender denied that he threw the first punch,

Bender’s own testimony suggests that he was at least partially at fault for creating

the situation giving rise to the affray. Accord Woodson at ¶ 85; State v. McElroy,

11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31

(concluding that the defendant could not claim self-defense because “his testimony

demonstrated that he was at least partially at fault for creating the situation giving

rise to the affray”). That is, Bender testified that he voluntarily entered the

encounter with B.H. See State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19,

2020-Ohio-3681, ¶ 40.

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{¶31} Nevertheless, the weight of the evidence presented at trial reflects that

Bender did not have a bona fide belief that he was imminent danger of death or great

bodily harm and that this only means of escape from such danger was the use of

force a required by the second element of a self-defense claim. Under the second

element of self-defense, “[t]he person’s belief must be objectively reasonable under

the circumstances and he must subjectively believe he needed to resort to force to

defend himself.” State v. Bundy, 4th Dist. Pike No. 11CA818, 2012-Ohio-3934, ¶

54. Specifically, “‘[t]he objective part of the test requires consideration of “whether,

considering all of the defendant’s particular characteristics, knowledge, or lack of

knowledge, circumstances, history, and conditions at the time of the attack,” a

reasonable person would believe that danger was imminent.’” Id., quoting State v.

Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-4416, ¶ 30, quoting State

v. Keith, 10th Dist. Franklin Nos. 08AP-28 and 08AP-29, 2008-Ohio-6122, ¶ 23.

“The subjective part requires consideration of whether the defendant himself

actually believed that he was in imminent danger.” Id.

{¶32} Importantly, under the second element of a self-defense claim “a

defendant must show that ‘that the degree of force used was “warranted” under the

circumstances and “proportionate” to the perceived threat.’” Id. at ¶ 55, quoting

Hendrickson at ¶ 31. “‘If * * * the amount of force used is so disproportionate that

it shows an “unreasonable purpose to injure,” the defense of self-defense is

unavailable.’” Id., quoting State v. Macklin, 8th Dist. Cuyahoga No. 94482, 2011-

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Ohio-87, ¶ 27, quoting State v. Speakman, 4th Dist. Pickaway No. 00CA035, 2001

WL 315198, *4 (Mar. 27, 2001).

{¶33} In this case, the weight of the evidence presented at trial demonstrates

that Bender’s use of deadly force was not “reasonably necessary and proportionate

to the apparent danger.” State v. Dearmond, 3d Dist. Logan No. 8-22-41, 2024-

Ohio-393, ¶ 31. Critically, Bender “brought a knife to a fist fight and seriously

injured” B.H. State v. James, 2d Dist. Montgomery No. 28892, 2021-Ohio-1112, ¶

25. Specifically, the evidence reflects that Bender and B.H. “met with the intention

of engaging in a fist fight.” Kean, 2019-Ohio-1171, at ¶ 119 (resolving that “it was

within the province of the jury to credit the testimony of the state’s witnesses that

Barnett and appellant met with the intention of engaging in a fist fight”). Indeed,

there was no evidence presented that B.H. wielded a weapon during the altercation.

{¶34} Certainly, under the facts presented, it was within the province of the

jury to credit the testimonies offered by the State’s witnesses that Bender did not

have “reasonable grounds for believing there was an imminent threat of death or

serious bodily harm.” Id. at ¶ 119. Consequently, the evidence presented reflects

that Bender “used deadly force when he was not faced with deadly force” and that

“[t]he degree of force used by [Bender] was neither warranted under the

circumstances nor proportionate to the perceived threat.” State v. Green, 12th Dist.

Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 36.

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{¶35} Therefore, based on our review of the record, we conclude that the

trier of fact did not lose its way by concluding that Bender did not act in self-defense.

“The jury heard all of the testimony, considered the evidence, and found the state’s

witnesses credible, and we will not disturb the jury’s verdict on appeal.” Id. at ¶ 37.

Importantly, “[t]he jury did not lose its way simply because it believed the

prosecution testimony and disbelieved appellant’s account.” Id. Accordingly,

weighing the evidence and all reasonable inferences, and considering the credibility

of witnesses, we conclude the jury did not clearly lose its way and create such a

manifest miscarriage of justice that Bender’s felonious-assault conviction must be

reversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under

Count One is not against the manifest weight of the evidence.

{¶36} Bender’s first and sixth assignments of error are overruled.

Second Assignment of Error

The Trial Court Erred When It Failed To Grant A Mistrial First After The Jury Was Tainted By Inaccurate Statements Made By The Prosecutor Regarding Appellant’s Attempt To Invoke The Fifth Amendment When He Was On The Stand And Second When The Prosecutor Improperly Commented On Appellant’s Pre-Arrest Silence.

{¶37} In his second assignment of error, Bender argues that the trial court

erred by failing to declare a mistrial based on prosecutorial misconduct.

Specifically, Bender argues that the prosecutor improperly “commented on * * *

Mr. Bender invoking his Fifth Amendment right not to incriminate himself, then

-19- Case No. 14-23-12

minutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief

at 12).

{¶38} “‘A mistrial should not be ordered in a cause simply because some

error has intervened. The error must prejudicially affect the merits of the case and

the substantial rights of one or both of the parties.’” State v. Sipple, 10th Dist.

Franklin No. 17AP-862, 2018-Ohio-4342, ¶ 18, quoting Tingue v. State, 90 Ohio

St. 368 (1914), paragraph three of the syllabus. “Notably, mistrials are appropriate

only when the ends of justice so require and a fair trial is no longer possible.” State

v. Carter, 3d Dist. Allen No. 1-15-62, 2017-Ohio-1233, ¶ 61.

{¶39} “Because it rests within the sound discretion of the court, we review a

trial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”

State v. Houdeshell, 3d Dist. Hancock No. 5-18-02, 2018-Ohio-5217, ¶ 44. An

abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

Analysis

{¶40} In this case, Bender moved for a mistrial based on alleged improper

statements made by the prosecutor at trial. “When a defendant moves for a mistrial

based on prosecutorial misconduct, the trial court must determine whether ‘the

prosecutor’s actions were improper, and, if so, whether the defendant’s substantial

rights were actually prejudiced.’” State v. Dukes, 9th Dist. Summit No. 30366,

-20- Case No. 14-23-12

2023-Ohio-2863, ¶ 24, quoting State v. Dukles, 9th Dist. Medina No. 12CA0100-

M, 2013-Ohio-5263, ¶ 33. Thus, “‘[w]hen the grounds for a mistrial are based on

prosecutorial misconduct, the defendant must show that the alleged misconduct

deprived him of a fair trial.’” State v. Grover, 11th Dist. Ashtabula No. 2022-A-

0092, 2024-Ohio-505, ¶ 40, quoting State v. Sbarra, 11th Dist. Portage No. 95-P-

0153, 1998 WL 156865, *3 (Mar. 20, 1998). “‘The defendant must show that, but

for the prosecutor’s misconduct, the trier of fact would not have convicted him.’”

Dukes at ¶ 24, quoting Dukles at ¶ 33. “‘In making this determination, an appellate

court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.’” State v.

Miller, 3d Dist. Marion No. 9-18-02, 2018-Ohio-3433, ¶ 46, quoting State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

{¶41} Bender takes issue with the prosecutor’s statements regarding the

invocation of his Fifth Amendment right against self-incrimination and his pre-

arrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the

United States provides that no person ‘shall be compelled in any criminal case to be

a witness against himself.’” State v. Perez, 3d Dist. Defiance No. 4-03-49, 2004-

Ohio-4007, ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This

Amendment is made applicable to the states through the due process clause of the

Fourteenth Amendment.” Id.

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{¶42} “‘The right to remain silent is conferred by the United States and the

Ohio Constitutions.”’ Chavez, 2020-Ohio-426, at ¶ 50, quoting State v. Graber, 5th

Dist. Stark No. 2002CA00014, 2003-Ohio-137, ¶ 78. “‘The privilege against self-

incrimination “is fulfilled only when the person is guaranteed the right ‘to remain

silent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,

quoting Graber at ¶ 78, quoting Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct.

1602 (1966), quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, (1964). “This

rule enforces one of the underlying policies of the Fifth Amendment, which is to

avoid having the jury assume that a defendant’s silence equates with guilt.” Perez

at ¶ 10.

{¶43} Here, Bender contends that the prosecutor improperly asserted that

Bender “was not entitled to assert [his Fifth Amendment] privilege, in front of the

jury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s

Brief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes

Bender’s argument and asserts that the prosecutor’s statements were not improper

because Bender’s refusal to answer was not justified.

{¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” State

v. Arnold, 3d Dist. Seneca No. 13-13-27, 2014-Ohio-1134, ¶ 22, quoting In re High

Fructose Corn Syrup Antitrust Litigation, 293 F.Supp.2d 854, 859 (C.D.Ill.2003).

“The protections against self-incrimination ‘must be confined to instances where

the witness has reasonable cause to apprehend danger from a direct answer.’” State

-22- Case No. 14-23-12

v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, ¶ 43, quoting Hoffman v. United

States, 341 U.S. 479, 486, 71 S.Ct. 814 (1951). Consequently, “‘when a witness

asserts a privilege against self-incrimination, a court may not rely upon the witness’s

claim alone, but has a duty to determine whether the witness’s refusal to answer is

justified.’” State v. Barton, 3d Dist. Seneca No. 13-23-22, 2024-Ohio-1417, ¶ 47,

quoting State v. Spangler, 5th Dist. Fairfield No. 16-CA-12, 2017-Ohio-268, ¶ 30.

{¶45} Based on our review of the record, we conclude that Bender’s refusal

to answer was not justified. Specifically, at trial, Bender testified on direct

examination regarding his witness’s—Dean Smith—testimony that Bender

“coached” his testimony:

[Bender]: My side of the things * * * is that, when we come to consult with * * * our lawyer * * * that we all talk separately and we generally had an idea of what happened that night. I’ve made statements in the past that I am claiming self-defense but I’ve never persuaded anybody or told anybody or coached anybody on what to say here today.

[Trial Counsel]: So [Smith] did that on his own?

[Bender]: Correct.

[Trial Counsel]: Part of an effort to help you?

[Bender]: I would assume so.

[Trial Counsel]: Misguided effort, would you say?

[Bender]: Most definitely.

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(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his

Fifth Amendment privilege against self-incrimination:

[The Prosecutor]: If I understand your testimony correctly, your friend just came in here and lied. Is that right?

[Bender]: It would appear so, yes.

[The Prosecutor]: He had lied when he said you told him what to say. Right?

[Bender]: I plead the fifth on that question.

(Id. at 193-194). Following consultation with his trial counsel, Bender answered

the prosecutor’s question:

[The Prosecutor]: And so, you told him what to say?

[Bender]: I did not.

[The Prosecutor]: You did not, so he lied about that?

[The Prosecutor]: [W]ell, why did you plead the fifth then?

[Bender]: I was confused on the question and did not know how to answer.

(Id. at 194-195).

{¶46} Based on our review of Bender’s testimony, we conclude that Bender

did not present a basis to invoke his Fifth Amendment privilege against self-

incrimination. See Arnold, 2014-Ohio-1134, at ¶ 24. “‘[W]hen a defendant chooses

to testify in a criminal case, the Fifth Amendment does not allow him to refuse to

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answer related questions on cross-examination.’” State v. Madison, 160 Ohio St.3d

232, 2020-Ohio-3735, ¶ 20, quoting Kansas v. Cheever, 571 U.S. 87, 94, 134 S.Ct.

596 (2013). Significantly, “‘[a] defendant “has no right to set forth to the jury all

the facts which tend in his favor without laying himself open to a cross-examination

upon those facts.”’” Id., quoting Cheever at 94, quoting Fitzpatrick v. United States,

178 U.S. 304, 315, 20 S.Ct. 944 (1900). Therefore, because Bender’s refusal was

not justified, the prosecutor’s cross-examination of Bender was not improper.

{¶47} Bender further argues that the prosecutor improperly cross-examined

him regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends

that the prosecutor improperly “commented on [his] pre-arrest silence to attack the

self-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to

the police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).

Here, Bender suggests that he was deprived of a fair trial because the prosecutor’s

cross-examination of him regarding his pre-arrest, pre-Miranda silence constituted

substantive evidence of his guilt. The State refutes Bender’s argument and contends

that the prosecutor’s cross-examination of Bender had “probative value for

impeachment, since Bender’s claim of self-defense and claiming to be the victim of

an attack would usually result in a report of his lawful use of force to the police

when it happened.” (Appellee’s Brief at 19).

{¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive

evidence of guilt violates the Fifth Amendment privilege against self-

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incrimination.” State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, syllabus.

However, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for

impeachment purposes.” Chavez, 2020-Ohio-426, at ¶ 55. Specifically, when “the

defendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as

impeachment evidence is permitted because it furthers the truth-seeking process.”

Leach at ¶ 33, quoting Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124

(1980). “Otherwise, a criminal defendant would be provided an opportunity to

perjure himself at trial, and the state would be powerless to correct the record.” Id.

Likewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive

evidence of guilt does not violate the Fifth Amendment privilege against self-

incrimination if the defendant fails to expressly invoke the privilege.” State v. Speis,

12th Dist. Clermont No. CA2022-07-032, 2023-Ohio-1422, ¶ 17, citing Salinas v.

Texas, 570 U.S. 178, 133 S.Ct. 2174 (2013).

{¶49} Importantly, “the Constitution does not prohibit references to a

defendant’s invocation of the right to remain silent as a ‘fair response’ to a

defendant’s claims.” State v. Corey, 11th Dist. Geauga No. 2021-G-0029, 2022-

Ohio-4568, ¶ 30, quoting United States v. Robinson, 485 U.S. 25, 32-34, 108 S.Ct.

864 (1988). See also State v. Roby, 3d Dist. Putnam No. 12-09-09, 2010-Ohio-

1498, ¶ 16 (“‘The United States Supreme Court has held that the Fifth Amendment

does not prohibit references to a defendant’s invocation of the right against self-

incrimination when the references are made in “fair response” to the defense’s

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claims.’”), quoting State v. Ferguson, 10th Dist. Franklin No. 07AP-999, 2008-

Ohio-6677, ¶ 51, quoting Robinson at 32-34. “A fair response is warranted in such

circumstances because ‘“the protective shield of the Fifth amendment”’ should not

become ‘“a sword that cuts back on the area of legitimate comment by the

prosecutor on the weaknesses in the defense case.”’” Corey at ¶ 30, quoting

Robinson at 32, quoting United States v. Hasting, 461 U.S. 499, 515, 103 S.Ct. 1974

(1983) (Stevens, J., concurring).

{¶50} The prosecutor’s cross-examination of Bender regarding his pre-

arrest, pre-Miranda silence was not improper. Critically, the State’s cross-

examination of Bender amounts to impeachment evidence, which did not violate

Bender’s right to remain silent. Accord Chavez at ¶ 55, citing Leach at ¶ 21 (noting

that “neither the Fifth Amendment right to be free from self-incrimination nor the

Fourteenth Amendment right to due process is [sic] violated by the use of pre-arrest

silence to impeach a criminal defendant’s credibility”). That is, the prosecutor’s

cross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a

fair response to Bender’s self-defense claim. See Corey at ¶ 38; Ferguson at ¶ 54.

See also Roby at ¶ 16.

{¶51} Therefore, since the prosecutor did not improperly address Bender’s

invocation of his Fifth Amendment privilege against self-incrimination or his pre-

arrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he

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was not deprived of a fair trial. For these reasons, we conclude that the trial court

did not abuse its discretion by denying Bender’s motion for a mistrial.

{¶52} Bender’s second assignment of error is overruled.

Third Assignment of Error

The Trial Court Erred When It Failed To Give A Jury Instruction On Aggravated Assault.

Fourth Assignment of Error

The Trial Court Erred When It Gave An Improper Instruction On Self-Defense.

Fifth Assignment of Error

The Trial Court Erred When It Failed To Send Verdict Forms To The Jury As To The Issue Of Self-Defense.

{¶53} In his third, fourth, and fifth assignments of error, Bender challenges

the trial court’s jury instructions and verdict forms. In particular, in his third

assignment of error, Bender argues that the trial court erred by failing to instruct the

jury on the inferior-degree offense of aggravated assault. Bender specifically argues

in his fourth assignment of error that the trial court erroneously instructed the jury

regarding self-defense. Finally, in his fifth assignment of error, Bender argues that

the trial court erred by providing the jury with improper verdict forms.

{¶54} “A trial court’s decision to give a jury instruction is within its

discretion, and we will not reverse such a decision absent an abuse of that

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discretion.” State v. Wilson, 3d Dist. Allen No. 1-09-64, 2010-Ohio-2294, ¶ 8.

Again, an abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Adams, 62 Ohio St.2d at 157.

{¶55} “While a trial court has broad discretion to determine how it will

instruct a jury, the court has a duty to ‘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. Torres, 3d Dist. Defiance No. 4-01-

06, 2002 WL 418392, *3 (Mar. 18, 2002), quoting State v. Comen, 50 Ohio St.3d

206, 210 (1990). “Requested jury instructions should ordinarily be given if they are

correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240.

Aggravated Assault Instruction

{¶56} In his third assignment of error, Bender contends that the trial court

erred by failing to instruct the jury on the inferior-degree offense of aggravated

assault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the

evidence adduced at trial is legally insufficient” to support it.’” Estelle, 2021-Ohio-

2636, at ¶ 13, quoting State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108 and

09AP-1109, 2010-Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d 254,

259 (3d Dist.1993). See also Torres at *3 (“When a trial court is faced with the

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decision whether to give a requested instruction, the appropriate inquiry is whether

sufficient evidence has been presented to support the instruction.”). “[T]he trial

judge is in the best position to gauge the evidence before the jury and is provided

the discretion to determine whether the evidence adduced at trial was sufficient to

require an instruction.” State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72.

{¶57} “Aggravated assault is an offense of an inferior degree of felonious

assault.” State v. Lane, 6th Dist. Erie No. E-22-035, 2023-Ohio-1305, ¶ 13. “An

instruction on aggravated assault is appropriate when the evidence supports a

conviction for felonious assault, but the assault resulted from serious provocation

by the victim.” State v. Morrow, 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527,

¶ 8. That is, “[i]n a trial for felonious assault, where the defendant presents sufficient

evidence of serious provocation, such that a jury could both reasonably acquit [the]

defendant of felonious assault and convict [the] defendant of aggravated assault, an

instruction on aggravated assault, as an inferior degree of felonious assault, must be

given.” (Emphasis sic.) State v. Booker, 6th Dist. Lucas No. L-10-1140, 2013-

Ohio-45, ¶ 25.

{¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on

extreme stress and the provocation must be reasonably sufficient to incite or arouse

the defendant into using deadly force.’” Id. at ¶ 26, quoting State v. Mabry, 5 Ohio

App.3d 13 (8th Dist.1982), paragraph five of the syllabus. “‘In determining whether

the provocation was reasonably sufficient to incite the defendant into using deadly

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force, the court must consider the emotional and mental state of the defendant and

the conditions and circumstances that surrounded him at the time.’” Id., quoting

Mabry at paragraph five of the syllabus.

{¶59} “Ohio courts considering what constitutes sufficient ‘serious

provocation’ have found that past incidents or verbal threats are not sufficient;

words are not sufficient; and a victim’s simple pushing or punching the defendant

is not sufficient.” State v. Mitchell, 6th Dist. Lucas No. L-22-1166, 2023-Ohio-

3543, ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute

sudden passion or a sudden fit of rage, Ohio courts have found that confusion or

fear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that

he was merely afraid and no evidence exists that he actually acted under a sudden

fit of passion or rage, a court does not abuse its discretion by refusing to provide an

instruction on aggravated assault.” Lane at ¶ 36.

{¶60} On appeal, Bender argues that he presented sufficient evidence that he

acted under serious provocation. In response, the State expostulates that

“[a]ggravated assault is generally incompatible with a theory of self-defense

because self-defense requires proof of fear while aggravated assault requires a

showing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,

the State asserts that Bender did not present any evidence that he “acted ‘in a sudden

fit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally

testified that he stabbed [B.H.] out of a fear for his safety.” (Id.).

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{¶61} “This Court has stated that a defendant who asserts self-defense “‘is

not entitled under Ohio law to instructions on self-defense and on lesser included

offenses [or inferior degree offenses], but must choose between the two.”’” State v.

Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 18, quoting State v.

Rick, 3d Dist. No. 9-08-27, 2009-Ohio-785, ¶ 64, quoting State v. Shadd, 3d Dist.

Marion No. 9-94-5, 1994 WL 265861, *2 (June 15, 1994). Our sister courts of

appeal have agreed that “[i]n most cases, an aggravated assault instruction is

incompatible with an instruction on self-defense, so that both cannot be given

together.” State v. Shepherd, 12th Dist. No. CA2015-11-187, 2017-Ohio-328, ¶ 26.

See also State v. Wimpey, 6th Dist. Lucas No. L-18-1262, 2019-Ohio-4823, ¶ 18

(“Generally, an instruction on aggravated assault is incompatible with an instruction

on self-defense, such that both cannot be given together, because the legal theories

underpinning each offense are incompatible (aggravated assault—rage; self-

defense—fear).”).

{¶62} However, some courts have diverged and resolved that “‘[w]here there

is sufficient evidence on the issues of self-defense and aggravated assault, the court

must charge the jury on both, when so requested.’” Shepherd at ¶ 26, quoting State

v. Owens, 5th Dist. Richland No. 2004-CA-87, 2005-Ohio-4402, ¶ 31. See also

Wimpey at ¶ 18; State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, ¶ 59 (1st

Dist.). “For instance, an aggravated assault instruction could be given in a self-

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defense case where a defendant exceeded the amount of force necessary for his

defense, out of passion or rage.” Shepherd at ¶ 26.

{¶63} Nevertheless, we need not resolve such disaccord in this case because

Bender did not present sufficient evidence that he acted under “sudden passion or a

fit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory

of Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender

testified that he found himself on the ground with B.H. “on top of [him] attacking

[him] at which point [B.H.] took the mid section of his forearm and placed it on

[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at

166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going

to stop. [He] could not get him off of [him]. [He] could not get his body weight off

of [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”

(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him

in the back, in the lower buttocks and the thigh until he stopped and [Bender]

deemed him no longer a threat.” (Id.).

{¶64} Critically, Bender testified that “[i]t was at that time that [he] could no

longer breathe that [he] feared that [his] life was in danger and [he] reacted

accordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified

that he stabbed him “[t]o get him to stop” because he “felt that [his] life was in

danger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender

testified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]

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could once again breathe is the * * * moment that [he] stopped stabbing him * * *

.” (Id. at 167).

{¶65} Based on the foregoing, we conclude that Bender presented evidence

that he acted out of fear and not out of sudden passion or a fit of rage. See State v.

Mitchell, 6th Dist. Lucas No. L-22-1166, 2023-Ohio-3543, ¶ 57. That is, Bender

did not present reasonably sufficient evidence that the circumstances incited him to

use deadly force to repel the attack. As a result, Bender did not present sufficient

evidence of serious provocation. Compare Densmore, 2009-Oho-6870, at ¶ 16-17.

Consequently, the trial court did not abuse its discretion by failing to instruct the

jury on the inferior-degree offense of aggravated assault.

Self-Defense Instruction

{¶66} In his fourth assignment of error, Bender argues that the trial court

erred by instructing the jury that he had a duty to retreat in contravention of Ohio’s

“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’

law in Ohio now provides that ‘a person has no duty to retreat before using self-

defense * * * if that person is in a place in which the person lawfully has a right to

be.’” State v. Warnock, 12th Dist. Madison No. CA2023-02-001, 2024-Ohio-382,

¶ 46, quoting R.C. 2901.09(B), and citing State v. Mitchell, 1st Dist. Hamilton No.

C-220471, 2023-Ohio-2604, ¶ 17. The statute further provides that “[a] trier of fact

shall not consider the possibility of retreat as a factor in determining whether or not

a person who used force in self-defense * * * believed that the force was necessary

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to prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the

new “stand your ground’ law removes, in most cases, the duty to retreat before using

self-defense.’” Warnock at ¶ 46, quoting State v. Degahson, 2d Dist. Clark No.

2021-CA-35, 2022-Ohio-2972, ¶ 15. But see State v. Warth, 1st Dist. Hamilton No.

C-220477, 2023-Ohio-3641, ¶ 31 (cautioning that “R.C. 2901.09(C) is not an

absolute prohibition on introducing evidence involving the possibility of retreat.

Rather, the statute only prohibits fact finders from considering evidence involving

the possibility of retreat to determine whether the defendant’s belief that force was

necessary was reasonable. Fact finders may, however, consider retreat evidence to

determine who was at fault in creating the situation leading to the affray”).

{¶67} In this case, the trial court instructed the jury, in relevant part, that

[i]n determining whether the Defendant, in using force in self-defense reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety, you may not consider the possibility of retreat by the Defendant. The Defendant had no duty to retreat before using force in self-defense if the Defendant was in a place in which he lawfully had a right to be.

(Feb. 8, 2023 Tr. at 70).

{¶68} “Whether the jury instructions correctly state the law is a question that

is reviewed de novo.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 135.

“De novo review is independent, without deference to the lower court’s decision.”

State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.

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{¶69} Based on our review of the trial court’s jury instruction, we conclude

that the trial court’s jury instruction is a correct statement of law. Compare Warnock

at ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with

Ohio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly

states the appropriate duty-to-retreat standard as codified in R.C. 2901.09.

Consequently, the trial court’s self-defense jury instruction is not unreasonable,

arbitrary, or unconscionable.

Verdict Forms

{¶70} In his fifth assignment of error, Bender argues that the trial court erred

by failing to give the jury a separate verdict form regarding his self-defense claim.

Specifically, Bender asserts that the trial court should have provided the jury with

verdict forms requiring the jury to assess whether the State met its burden of proving

that he did not act in self-defense.

{¶71} Importantly, Bender did not object to the verdict forms at trial.

Consequently, Bender has forfeited all but plain error on appeal. Accord State v.

Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, ¶ 11. Under Crim.R. 52(B), “plain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” “We recognize plain error with the utmost

caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice.” State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-

1419, ¶ 69. “‘For plain error to apply, the trial court must have deviated from a

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legal rule, the error must have been an obvious defect in the proceeding, and the

error must have affected a substantial right.’” Id., quoting State v. Vielma, 3d Dist.

Paulding No. 11-11-03, 2012-Ohio-875, ¶ 34. “‘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.’” Id., quoting Vielma at ¶ 34.

{¶72} When reviewing a trial court’s jury instructions under the plain-error

standard, “‘an appellate court must review the [jury] instructions as a whole and the

entire record to determine whether a manifest miscarriage of justice has occurred as

a result of the error in the instructions.’” State v. Smith, 8th Dist. Cuyahoga No.

111593, 2023-Ohio-1296, ¶ 38, quoting State v. Nicholson, 8th Dist. Cuyahoga No.

110595, 2022-Ohio-2037, ¶ 137. “An improper or erroneous jury instruction does

not constitute plain error unless, but for the error, the outcome of the trial would

clearly have been different.” Id. Consequently, Bender is required to “demonstrate

that his convictions clearly would have been different had the trial court instructed

the jury on self-defense either before or after the elements of each offense and on

the requirement of unanimity.” Id.

{¶73} On appeal, Bender contends that the trial court erred by “not send[ing]

verdict forms back on the issue of self-defense, as the proper order is for the jury to

determine if the State met its burden beyond a reasonable doubt self-defense [sic]

and that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender

argues that

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[t]he only way for [him] to know that each member of the jury thoughtfully considered the issue of self-defense and whether the State met its burden of beyond a reasonable doubt is for each member of the jury to sign a verdict form that either the State did or did not prove beyond a reasonable doubt that Mr. Bender did not act in self- defense.

(Id.).

{¶74} We disagree with Bender’s proposition and join our sister appellate

districts in the conclusion that “[t]here is no requirement for a separate finding in

trials with claims of self-defense.” State v. Ellis, 8th Dist. Cuyahoga No. 109408,

2021-Ohio-1297, ¶ 23. Accord State v. Huish, 10th Dist. Franklin No. 21AP-255,

2023-Ohio-365, ¶ 93; State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-Ohio-

3367, ¶ 94. See also State v. Garvin, 3d Dist. Hardin No. 6-94-6, 1994 WL 514049,

*5 (Sept. 21, 1994). Therefore, the absence of a separate verdict form regarding

Bender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶

48.

{¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error

are overruled.

Seventh Assignment of Error

The Trial Court Erred When It Sentenced Appellant To An Indefinite Sentence: Reagan Tokes.

{¶76} In his seventh assignment of error, Bender argues that his sentence,

imposed under Ohio’s current sentencing scheme (commonly known as the “Reagan

Tokes Law”), is unconstitutional.

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{¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

{¶78} In this case, Bender challenges the constitutionality of the Reagan

Tokes Law—namely, Bender alleges that the Reagan Tokes Law violates his

constitutional right to a trial by jury in addition to violating the separation-of-powers

doctrine and due-process clause of the Ohio and United States Constitutions.

Imperatively, not only has this court rejected similar facial- and as-applied-

constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio

recently endorsed the constitutionality of the Reagan Tokes Law. Accord State v.

Rentschler, 3d Dist. Marion No. 9-22-50, 2023-Ohio-3009, ¶ 98; State v. Hacker,

173 Ohio St.3d 219, 2023-Ohio-2535, ¶ 41. We decline to diverge from such

formidable precedent. Accordingly, Bender’s sentence is not contrary to law.

{¶79} Bender’s seventh assignment of error is overruled.

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

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

WILLAMOWSKI, P.J. and MILLER, J., concur.

/hls

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