[Cite as State v. Delaffuente, 2015-Ohio-4917.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NOS. CA2015-03-040 Plaintiff-Appellee, : CA2015-03-042
: OPINION - vs - 11/30/2015 :
LUIS DELAFFUENTE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-08-1341
Michael T. Gmoser, Butler County Prosecuting Attorney, Audra R. Adams, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Rapp Law Office, Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Luis Delaffuente, appeals from his conviction in the
Butler County Court of Common Pleas after a jury found him guilty of two counts of
felonious assault. For the reasons outlined below, we affirm.
{¶ 2} On October 1, 2014, the Butler County Grand Jury returned an indictment
charging Delaffuente with two counts of felonious assault in violation of R.C. Butler CA2015-03-040 CA2015-03-042
2903.11(A)(2), both second-degree felonies. According to the bill of particulars, the
charges stemmed from allegations Delaffuente stabbed Tim Hull and Rene Cervantes
outside his Butler County home during the early morning hours of August 17, 2014. The
matter then proceeded to a three-day jury trial, during which time the trial court denied
Delaffuente's request to instruct the jury on the affirmative defense of self-defense.
Following deliberations, the jury found Delaffuente guilty of both charges. The trial court
then sentenced Delaffuente to serve a total of six years in prison.
{¶ 3} Delaffuente now appeals from his conviction, raising a single assignment of
error for review.
{¶ 4} THE TRIAL COURT ERRED BY REFUSING TO PRESENT THE ISSUE OF
SELF-DEFENSE TO THE JURY.
{¶ 5} In his single assignment of error, Delaffuente argues the trial court erred by
denying his request to instruct the jury on the affirmative defense of self-defense. We
disagree.
{¶ 6} "Jury instructions are matters left to the sound discretion of the trial court."
State v. Tucker, 12th Dist. Butler No. CA2010-10-263, 2012-Ohio-139, ¶ 23. In turn, this
court reviews the trial court's decision refusing to provide the jury with a requested
instruction for an abuse of discretion. State v. Adams, Slip Opinion No. 2015-Ohio-3954,
¶ 240, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989); State v. McKinney, 12th Dist.
Butler No. CA2011-08-162, 2012-Ohio-4521, ¶ 24. An abuse of discretion implies that the
court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error
of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130. A
decision is unreasonable when it is "unsupported by a sound reasoning process." State v.
Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc.
-2- Butler CA2015-03-040 CA2015-03-042
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 7} It is well-established that under Ohio law "self-defense is an affirmative
defense." State v. Martin, 21 Ohio St.3d 91, 93 (1986). As defined by R.C.
2901.05(D)(1)(b), an "affirmative defense" is a "defense involving an excuse or
justification peculiarly within the knowledge of the accused, on which the accused can
fairly be required to adduce supporting evidence." The burden of going forward with
evidence of self-defense and the burden of proving self-defense by a preponderance of
the evidence is upon the accused. State v. Jones, 12th Dist. Butler No. CA2012-04-077,
2013-Ohio-654, ¶ 45.
{¶ 8} A trial court does not err in failing to instruct the jury on self-defense where
the evidence is insufficient to support the instruction. State v. Rice, 12th Dist. Butler No.
CA2003-01-015, 2004-Ohio-697, ¶ 26, citing State v. Palmer, 80 Ohio St.3d 543, 564
(1997). As a result, if the evidence brought forward generated only mere speculation of a
self-defense claim, such evidence is insufficient to raise the affirmative defense, and
submission of the issue to the jury is unwarranted. State v. Martin, 12th Dist. Warren Nos.
CA2002-10-111, CA2002-10-115 and CA2002-10-116, 2003-Ohio-6551, ¶ 9. In
determining whether a defendant has introduced sufficient evidence to warrant a jury
instruction on self-defense, "the test to be applied is whether the defendant has
introduced evidence that, if believed, is sufficient to raise a question in the minds of
reasonable persons concerning the existence of the offense." State v. Ford, 12th Dist.
Butler No. CA2009-01-039, 2009-Ohio-6046, ¶ 19.
{¶ 9} To warrant a jury instruction on self-defense, sufficient evidence must be
before the jury specific to three elements: (1) the defendant was not at fault in creating the
situation giving rise to the affray, (2) the defendant had a bona fide belief he was in
-3- Butler CA2015-03-040 CA2015-03-042
imminent danger of death or great bodily harm and that his only means of escape from
such danger was the use of deadly force, and (3) the defendant did not violate any duty to
retreat or avoid the danger. State v. Gray, 12th Dist. Butler No. CA2010-03-064, 2011-
Ohio-666, ¶ 43, citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the
syllabus.
{¶ 10} After a thorough review of the record, we find no error in the trial court's
decision to deny Delaffuente's request to instruct the jury on the affirmative defense of
self-defense. As the record reveals, Delaffuente denied ever using deadly force, let alone
that he used deadly force as his only means of escape from any imminent danger of
death or great bodily harm. In fact, when specifically asked if he ever had a knife that
morning, Delaffuente testified, "No. Never." Delaffuente also specifically testified that he
"[n]ever used a – have a knife" and that it was possible Hull and Cervantes had merely
stabbed themselves. Delaffuente's various defense witnesses testifying on his behalf also
denied Delaffuente ever had a knife or used a knife that morning. By denying he ever
used deadly force through his own testimony or that of his various defense witnesses,
Delaffuente failed to produce sufficient evidence to support a jury instruction on self-
defense.
{¶ 11} In reaching this decision, we take this opportunity to clarify an apparent
misconception in our prior decision in State v. Gomez, 12th Dist. Butler No. CA2012-07-
129, 2013-Ohio-2856. In Gomez, we noted the appellant "never even admitted to the use
of deadly force," and cited to State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-
6870 and State v. Grubb, 111 Ohio App.3d 277, 282 (2d Dist.), for the proposition that an
accused "must admit the prohibited conduct[.]" Id. at ¶ 12. However, upon closer
examination, we find nothing within the three elements necessary to establish a claim of
-4- Butler CA2015-03-040 CA2015-03-042
self-defense that explicitly requires a defendant to waive his Fifth Amendment rights at
trial and admit to using deadly force. This is because "[a] defendant who does not testify
[at trial] is not precluded from requesting an instruction on self-defense if the evidence
otherwise supports the defense." State v. Eichelbrenner, 1st Dist. Hamilton No. C-
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Delaffuente, 2015-Ohio-4917.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NOS. CA2015-03-040 Plaintiff-Appellee, : CA2015-03-042
: OPINION - vs - 11/30/2015 :
LUIS DELAFFUENTE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-08-1341
Michael T. Gmoser, Butler County Prosecuting Attorney, Audra R. Adams, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Rapp Law Office, Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Luis Delaffuente, appeals from his conviction in the
Butler County Court of Common Pleas after a jury found him guilty of two counts of
felonious assault. For the reasons outlined below, we affirm.
{¶ 2} On October 1, 2014, the Butler County Grand Jury returned an indictment
charging Delaffuente with two counts of felonious assault in violation of R.C. Butler CA2015-03-040 CA2015-03-042
2903.11(A)(2), both second-degree felonies. According to the bill of particulars, the
charges stemmed from allegations Delaffuente stabbed Tim Hull and Rene Cervantes
outside his Butler County home during the early morning hours of August 17, 2014. The
matter then proceeded to a three-day jury trial, during which time the trial court denied
Delaffuente's request to instruct the jury on the affirmative defense of self-defense.
Following deliberations, the jury found Delaffuente guilty of both charges. The trial court
then sentenced Delaffuente to serve a total of six years in prison.
{¶ 3} Delaffuente now appeals from his conviction, raising a single assignment of
error for review.
{¶ 4} THE TRIAL COURT ERRED BY REFUSING TO PRESENT THE ISSUE OF
SELF-DEFENSE TO THE JURY.
{¶ 5} In his single assignment of error, Delaffuente argues the trial court erred by
denying his request to instruct the jury on the affirmative defense of self-defense. We
disagree.
{¶ 6} "Jury instructions are matters left to the sound discretion of the trial court."
State v. Tucker, 12th Dist. Butler No. CA2010-10-263, 2012-Ohio-139, ¶ 23. In turn, this
court reviews the trial court's decision refusing to provide the jury with a requested
instruction for an abuse of discretion. State v. Adams, Slip Opinion No. 2015-Ohio-3954,
¶ 240, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989); State v. McKinney, 12th Dist.
Butler No. CA2011-08-162, 2012-Ohio-4521, ¶ 24. An abuse of discretion implies that the
court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error
of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130. A
decision is unreasonable when it is "unsupported by a sound reasoning process." State v.
Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc.
-2- Butler CA2015-03-040 CA2015-03-042
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 7} It is well-established that under Ohio law "self-defense is an affirmative
defense." State v. Martin, 21 Ohio St.3d 91, 93 (1986). As defined by R.C.
2901.05(D)(1)(b), an "affirmative defense" is a "defense involving an excuse or
justification peculiarly within the knowledge of the accused, on which the accused can
fairly be required to adduce supporting evidence." The burden of going forward with
evidence of self-defense and the burden of proving self-defense by a preponderance of
the evidence is upon the accused. State v. Jones, 12th Dist. Butler No. CA2012-04-077,
2013-Ohio-654, ¶ 45.
{¶ 8} A trial court does not err in failing to instruct the jury on self-defense where
the evidence is insufficient to support the instruction. State v. Rice, 12th Dist. Butler No.
CA2003-01-015, 2004-Ohio-697, ¶ 26, citing State v. Palmer, 80 Ohio St.3d 543, 564
(1997). As a result, if the evidence brought forward generated only mere speculation of a
self-defense claim, such evidence is insufficient to raise the affirmative defense, and
submission of the issue to the jury is unwarranted. State v. Martin, 12th Dist. Warren Nos.
CA2002-10-111, CA2002-10-115 and CA2002-10-116, 2003-Ohio-6551, ¶ 9. In
determining whether a defendant has introduced sufficient evidence to warrant a jury
instruction on self-defense, "the test to be applied is whether the defendant has
introduced evidence that, if believed, is sufficient to raise a question in the minds of
reasonable persons concerning the existence of the offense." State v. Ford, 12th Dist.
Butler No. CA2009-01-039, 2009-Ohio-6046, ¶ 19.
{¶ 9} To warrant a jury instruction on self-defense, sufficient evidence must be
before the jury specific to three elements: (1) the defendant was not at fault in creating the
situation giving rise to the affray, (2) the defendant had a bona fide belief he was in
-3- Butler CA2015-03-040 CA2015-03-042
imminent danger of death or great bodily harm and that his only means of escape from
such danger was the use of deadly force, and (3) the defendant did not violate any duty to
retreat or avoid the danger. State v. Gray, 12th Dist. Butler No. CA2010-03-064, 2011-
Ohio-666, ¶ 43, citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the
syllabus.
{¶ 10} After a thorough review of the record, we find no error in the trial court's
decision to deny Delaffuente's request to instruct the jury on the affirmative defense of
self-defense. As the record reveals, Delaffuente denied ever using deadly force, let alone
that he used deadly force as his only means of escape from any imminent danger of
death or great bodily harm. In fact, when specifically asked if he ever had a knife that
morning, Delaffuente testified, "No. Never." Delaffuente also specifically testified that he
"[n]ever used a – have a knife" and that it was possible Hull and Cervantes had merely
stabbed themselves. Delaffuente's various defense witnesses testifying on his behalf also
denied Delaffuente ever had a knife or used a knife that morning. By denying he ever
used deadly force through his own testimony or that of his various defense witnesses,
Delaffuente failed to produce sufficient evidence to support a jury instruction on self-
defense.
{¶ 11} In reaching this decision, we take this opportunity to clarify an apparent
misconception in our prior decision in State v. Gomez, 12th Dist. Butler No. CA2012-07-
129, 2013-Ohio-2856. In Gomez, we noted the appellant "never even admitted to the use
of deadly force," and cited to State v. Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-
6870 and State v. Grubb, 111 Ohio App.3d 277, 282 (2d Dist.), for the proposition that an
accused "must admit the prohibited conduct[.]" Id. at ¶ 12. However, upon closer
examination, we find nothing within the three elements necessary to establish a claim of
-4- Butler CA2015-03-040 CA2015-03-042
self-defense that explicitly requires a defendant to waive his Fifth Amendment rights at
trial and admit to using deadly force. This is because "[a] defendant who does not testify
[at trial] is not precluded from requesting an instruction on self-defense if the evidence
otherwise supports the defense." State v. Eichelbrenner, 1st Dist. Hamilton No. C-
110431, 2013-Ohio-1194, ¶ 24.
{¶ 12} However, as noted by the Ohio Supreme Court, "[i]nasmuch as self-defense
is an affirmative defense requiring proof by a preponderance of the evidence, it is
incumbent upon a defendant claiming self-defense to offer evidence tending to establish
that defense, including, if necessary, his own testimony." State v. Seliskar, 35 Ohio St.2d
95, 96 (1973). In turn, "an accused may exercise his right to silence and still prove self-
defense through the testimony of other witnesses." State v. Lyons, 8th Dist. Cuyahoga
No. 43513, 1981 WL 4668, *1 (Dec. 3, 1981). Yet, even then, the evidence tending to
establish self-defense need not be offered by a defendant in his case-in-chief. Rather, a
defendant may "offer" the necessary evidence through cross-examination of the state's
witnesses or simply by relying on other evidence offered by the state. Such is not the
case here. Again, as the record reveals, Delaffuente and all of Delaffuente's various
defense witnesses testified Delaffuente never had a knife or used a knife that morning.
{¶ 13} Although an admission of the conduct involved is not a necessary
prerequisite to a self-defense instruction, a denial of the conduct negates the second
element of a self-defense claim; namely, that the defendant had a bona fide belief of
imminent danger of death or great bodily harm and the only means of escape from such
danger was the use of deadly force. The trial court, therefore, did not err by denying
Delaffuente's request to instruct the jury on the affirmative defense of self-defense. E.g.,
State v. Edgerson, 8th Dist. Cuyahoga No. 101283, 2015-Ohio-593, ¶ 18 (trial court did
-5- Butler CA2015-03-040 CA2015-03-042
not err refusing to instruct the jury on self-defense where defendant denied he had a knife,
that he did not know how the victim was injured, and that the victim's injuries could
possibly have been self-inflicted); State v. Mitchell, 8th Dist. Cuyahoga No. 70437, 1997
WL 209170, *3 (Apr. 24, 1997) (trial court did not err refusing to instruct jury on self-
defense where defendant denied possessing a knife on the night in question); State v.
Ramey, 8th Dist. Cuyahoga No. 69080, 1996 WL 112420, *11 (Mar. 14, 1996) (trial court
did not err refusing to instruct jury on self-defense where "defendant denied he used any
deadly force"). Accordingly, Delaffuente's single assignment of error is without merit and
overruled.
{¶ 14} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
-6-