State v. Hodgson

2021 Ohio 4374, 182 N.E.3d 417

• Court: Ohio Court of Appeals
• Decided: December 13, 2021
• Docket: 2021-L-022
• Status: Published

Opinion

[Cite as State v. Hodgson, 2021-Ohio-4374.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-022

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

BRANDON R. HODGSON, Trial Court No. 2020 CR 000840 Defendant-Appellant.

OPINION

Decided: December 13, 2021 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Sean P. Martin, 113 North Chestnut Street, Suite A, Jefferson, OH 44047 (For Defendant-Appellant).

MARY JANE TRAPP, P.J.

{¶1} Appellant, Brandon R. Hodgson (“Mr. Hodgson”), appeals from the

judgment of the Lake County Court of Common Pleas, which sentenced him to a total

prison term of 28 to 32 years after he was found guilty by a jury on six counts of felonious

assault. Mr. Hodgson and the four victims were homeless and residing in a “tent city,” or

homeless encampment, on private property in Painesville, Ohio. The charges arose from

a violent altercation at the campsite. {¶2} Mr. Hodgson raises six assignments of error on appeal, contending that (1)

the prosecution misstated the law during opening argument, thus prejudicing the jury; (2)

the trial court abused its discretion by failing to correct the misstatements; (3) his counsel

was ineffective for failing to file a motion for a mistrial based on the misstatements; (4)

there was insufficient evidence to sustain his convictions because the state failed to

disprove he acted in self-defense due to the contradictory testimony of the witnesses; (5)

for similar reasons, the manifest weight of the evidence does not support the jury’s verdict;

and, lastly, (6) his status as a homeless person precluded a no duty to retreat jury

instruction, thus violating the Equal Protection Clauses of the United States and Ohio

Constitutions.

{¶3} After a careful review of the record and pertinent law, we find Mr. Hodgson’s

assignments of error are without merit.

{¶4} First, a review of the prosecutor’s alleged misstatements of law, i.e., the

prosecutor’s discussion of the state’s burden on establishing the elements of an offense

during voir dire, reveals that simply because the prosecutor did not mention its burden of

disproving self-defense does not mean the prosecutor was misstating the law and

prejudicing the jury. Even if the prosecutor had misstated the law, the error would be

harmless. The trial court instructed the jury before the state’s questioning that the court

would later instruct them on the applicable law as applied to the facts of the case; and the

trial court accurately instructed the jury on the state’s burden of proof as to self-defense

prior to deliberations. Because Mr. Hodgson raises the same issue under his second and

third assignments of error, they necessarily fail for the same reason.

Case No. 2021-L-022 {¶5} Fourth, a review of the state’s evidence and testimony presented at trial

reveals the state introduced sufficient evidence from which a jury could find Mr. Hodgson

did not act in self-defense, i.e., there was sufficient evidence from which a jury could find

that Mr. Hodgson was at fault in creating the situation, that he did not have reasonable

grounds to believe he was in immediate danger of death or great bodily harm, and/or that

he did not use reasonable deadly force. That there was contradictory evidence goes to

the manifest weight of the evidence and the credibility of the witnesses.

{¶6} Likewise, Mr. Hodgson’s fifth assignment of error is without merit since the

manifest weight of the evidence more than supports the jury’s verdict. That there was

inconsistent testimony among the victims and competing versions of events goes to the

credibility of the witnesses and whom the jury choose to believe.

{¶7} Lastly, Mr. Hodgson failed to allege an equal protection violation, i.e., his

status as a homeless person did not preclude a “no duty to retreat” or Castle Doctrine jury

instruction pursuant to former R.C. 2901.09. Rather, such an instruction would have been

inappropriate under the factual circumstances of this case. Quite simply, Mr. Hodgson

was nowhere near his “residence” when the violent altercation occurred.

{¶8} The judgment of the Lake County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶9} After the case was bound over from the Painesville Municipal Court, Mr.

Hodgson was indicted by a grand jury on twelve counts: four counts of attempted murder,

a first-degree felony, in violation of R.C. 2903.02(A) (Counts 1, 4, 7, 10); four counts of

felonious assault, a second-degree felony, in violation of R.C. 2903.11(A)(1) (Counts 2,

Case No. 2021-L-022 5, 8, 11); and four counts of felonious assault, a second-degree felony, in violation of R.C.

2903.11(A)(2) (Counts 3, 6, 9, 12).

{¶10} Mr. Hodgson pleaded not guilty at his arraignment, and the case proceeded

to a three-day jury trial.

The Jury Trial

{¶11} The evidence and testimony at trial revealed that Mr. Hodgson and the four

victims, Tina Rothschuh (“Ms. Rothschuh”); Timothy John Wizniak (“Mr. Wizniak”), Dylan

Hulderman (“Mr. Hulderman”), and William King (“Mr. King”), were residing in a homeless

encampment along with another individual, Mark Zimba, in the wooded area of a private

property near Route 20 in Painesville, Ohio, allegedly with the permission of the owner.

Another individual, David Kline (“Mr. Kline”), also visited the campsite. Nearby to the

encampment is a Marathon gas station, a state of Ohio E-check facility for vehicle

emissions, and the Sub Zero Mission.

{¶12} At trial, Mr. Hodgson explained that he became homeless when his

construction job ended due to the winter season. He lost his apartment and “pretty much

everything at that time.” He stayed at Project Hope, a homeless shelter in Painesville,

Ohio, in late June/early July and then resided in Recreation Park, a city park in Painesville.

During his time at Project Hope, Mr. Hodgson became employed by a Subway in

Painesville as a general manager. Toward the end of July, Mr. Hodgson decided to

relocate his tent and asked several homeless acquaintances about possible locations.

Mr. Wizniak invited Mr. Hodgson to stay at the encampment a few weeks prior to the

incident.

Case No. 2021-L-022 {¶13} At the campsite, each person had their own tent, with the exception of Ms.

Rothschuh and Mr. Wizniak, who shared a tent. The tents were set around a firepit, which

was considered the common area or “living room.” Mr. Hodgson set up his tent on a

different path, away from the others and the campfire, which Ms. Rothschuh described as

“a one minute walk away from the campsite within hearing distance.”

{¶14} Several days before the incident, the victims and Mr. Hodgson began

quarreling over Mr. Hodgson’s lost cell phone. Ms. Rothschuh loaned him her cell phone,

which Mr. Hodgson held “hostage” until his was found. In response, the victims allegedly

threatened him, causing him to fear for his life on several occasions. Several days later,

the situation culminated into a violent altercation in which Mr. Hodgson used a rusty saw

and a broken rake to strike and maim the victims.

The State’s Case in Chief

{¶15} The stated presented the testimony of eleven witnesses, including the four

victims, as well as photographs of the victim’s injuries, an aerial map, and a taped police

interview with Mr. Hodgson.

{¶16} On the night of the incident, at approximately 11:50 p.m., Joshua Donaldson

(“Mr. Donaldson”) was driving home from work, heading northeast on Rt. 20. As he

approached the intersection with Rt. 2, he saw a woman running from the woods. He

slammed on his brakes and observed the woman, later identified as Ms. Rothschuh,

panicking and screaming, drenched in blood. Ms. Rothschuh was screaming that “other

people were being attacked by ‘Brando,’” and that “it’s over a phone.” Mr. Donaldson

pulled into the Sub Zero Mission parking lot and called 911. He saw Ms. Rothschuh run

into the road for more assistance from passing vehicles and a sheriff’s deputy arrive on

Case No. 2021-L-022 the scene. He also observed another man arrive on foot who claimed to be a victim but

appeared unharmed. The man appeared unable to listen to the officer, and the officer

ordered him to get on the ground and stop moving.

{¶17} Because there were only four deputies from the Sheriff’s Office working on

the night of the incident, several different departments in the area were called for

assistance. Several officers from the Lake County Sheriff’s Office (“Sheriff’s Office”), the

Painesville Police Department, and the Perry Village Police testified as to the investigation

of the incident.

{¶18} Deputy Chris Harvilla (“Dep. Harvilla”) of the Sheriff’s Office responded to

the dispatch. When he arrived on the scene, he noticed a male, later identified as Mr.

Hodgson, walking towards him, covered in dried blood on his hands and clothing. He

could not discern any other injuries, and while Mr. Hodgson smelled of alcohol, Dep.

Harvilla did not observe any other indica of intoxication, i.e., slurred speech, bloodshot

glassy eyes, or disheveled clothing. Dep. Harvilla called the Painesville Township Fire

Department because there were several injured individuals on the scene. They treated

the cut on Mr. Hodgson’s finger and released him.

{¶19} Mr. Hodgson informed Dep. Harvilla that he had gotten into an altercation

with other individuals in the woods and that “he thought he hurt them bad,” further stating

that “he had used a stick and a saw.” Dep. Harvilla transported Mr. Hodgson to the

Sheriff’s Office. While waiting for the detectives to interview him, Mr. Hodgson divulged

that the incident was “over a cell phone”; he thought someone had taken it; and he used

“a stick and a bottle” on the victims. He did not know where he hit the victims because it

Case No. 2021-L-022 was very dark. Dep. Harvilla further testified that Mr. Hodgson related that “Tim was trying

to get up and [I] kept on hitting him.”

{¶20} Mr. Hodgson also disclosed that he used a saw, which prompted Dep.

Harvilla to relay to the officer at the scene to search for the weapon. He further stated

multiple times that he had been attacked by four different people in the woods; he thought

“a guy would kill him”; he was “in fear of his life”; the attack was in “self-defense”; and he

was “horrified.”

{¶21} Mr. Hodgson returned to the scene later the next morning with Dep. Harvilla

and several other officers to look for the saw blade, which was located approximately

fifteen minutes into the search and found where Mr. Hodgson had described throwing it

in the woods.

{¶22} When Lieutenant Kevin Raico (“Lt. Raico”) of the Sheriff’s Office responded

to the scene, he observed several individuals attending to Ms. Rothschuh, who had a

large laceration across her face. Her nose appeared to be “hanging down” or cut away

from her face, and her face and clothing were covered in blood. While Lt. Raico was

attempting to treat her, he observed a male walking towards him holding his neck. Not

knowing if this was a potential subject coming out of the woods, he ordered him to the

ground. At that point, the male, later identified as Mr. King, reported he had also been

assaulted. He removed his hand from his neck, revealing a large laceration on the left

side of his neck in the lower jaw area.

{¶23} Hearing someone screaming for help in the woods, Lt. Raico, accompanied

by several officers, began searching the woods. When they reached the campsite, he

observed four tents surrounding an unlit firepit. One of the tents was stained with blood

Case No. 2021-L-022 and another was collapsed with an area of blood stains. There was also a large pile of

beer cans nearby. Lt. Raico located a third victim, Mr. Wizniak, sitting in a chair at the

campsite with blood “pouring off his face and neck.” Three partial pieces of a wooden

stick or rake handle that appeared to have fresh blood on them were collected as

evidence.

{¶24} When Deputy Shane Hop (“Dep. Hop”) of the Sheriff’s Office arrived on the

scene, he observed an individual, later identified as Mr. Hulderman, “fall” out of the woods.

He had blood on the top of his head and on his left arm. Upon closer examination, it

appeared that a blunt object had struck him on the top of his head, which had “split” or

lacerated. He also had a laceration on his left arm and elbow. Later, Dep. Hop observed

Mr. Wizniak covered in blood in the emergency room at Tri-point Hospital. His neck was

lacerated, and he was eventually life-flighted by helicopter to MetroHealth Hospital. David

Greene, the firefighter paramedic at the scene, observed that Mr. Wizniak’s ear appeared

to have been sliced with only the top still attached. Mr. Wizniak indicated he could not

hear.

{¶25} Deputy Michael Zgrebnak (“Dep. Zgrebnak”) was one of the officers who

assisted with the investigation of the campsite. He assisted Mr. Wizniak in walking out of

the woods and noticed he had a strong odor of alcohol emanating from his person.

{¶26} Detective Corey Svagerko (“Det. Svagerko”) from the Sheriff’s Office, who

investigated the incident and interviewed Mr. Hodgson, testified that three pieces of a

wooden handle, similar to a rake, were found at the campsite. He also found two broken

glass bottlenecks and a piece of glass at the scene. He retrieved a burned phone from

the firepit, which appeared to match the description of Ms. Rothschuh’s phone. Two other

Case No. 2021-L-022 phones were found near the campsite, but neither matched the model/make of Mr.

Hodgson’s lost phone.

{¶27} During the police interview, Mr. Hodgson admitted that he used a saw on

the victims and that he broke two bottles over Mr. Wizniak’s head. He also claimed Mr.

Wizniak attempted to attack him with a burning branch from the fire. Det. Svagerko

testified that the only “branch” located at the campsite was a 10- to 12-foot log that could

not easily be wielded as a weapon. The only injury he observed on Mr. Hodgson was a

small cut on his thumb.

The Victims’ Testimony

{¶28} All four victims testified at the trial.

{¶29} Ms. Rothschuh testified that Mr. Hodgson had been residing at the campsite

for several weeks prior to the incident and that everyone “got along great.” Approximately

a week before the “attack,” Mr. Hodgson discovered his phone was missing. Mr.

Hulderman told Ms. Rothschuh and Mr. Hodgson that he had borrowed the phone to listen

to music, but when it ran out of batteries, he set it down on a cinder block by the firepit.

It was gone in the morning. They speculated that Mr. Kline, who sometimes visited the

campsite, had taken the phone.

{¶30} Mr. Wizniak offered Ms. Rothschuh’s phone to Mr. Hodgson to use when

he went to work. She attempted to retrieve the phone from Mr. Hodgson with Mr. Wizniak

at the Subway shop where Mr. Hodgson worked. Mr. Hodgson refused and told her he

would return it when “he got his phone back.” Mr. Hodgson reported their visit to the

police, but he returned the phone to Ms. Rothschuh when he returned to the campsite

later that evening.

Case No. 2021-L-022 {¶31} Ms. Rothschuh depicted the scene prior to the incident and testified that

everyone was drinking and sitting by the campfire when Mr. Hodgson returned from work,

with food and beer to share. Everyone (Mr. Hodgson and the four victims) was listening

to music. Mr. King and Ms. Rothschuh returned to their respective tents while the others

were discussing putting Mr. Hodgson’s air mattress into Mr. Hulderman’s tent. As Ms.

Rothschuh did so, she heard Mr. Wizniak begin yelling, “Ow, why are you hitting me.”

She got out of the tent and saw Mr. Wizniak coming towards her, holding his ear. He

crawled into the tent and, as she was attempting to find clothes to stop the blood flow, Mr.

Hodgson started hitting Mr. Wizniak with a broken-off stick. Mr. Hodgson told her to get

back into the tent. He retrieved a rusty saw they kept at the campsite to cut firewood, hit

Mr. Wizniak in the back, and “raked his neck.” Mr. Wizniak “went down and laid here on

the ground.”

{¶32} Ms. Rothschuh testified that at one point, Mr. Hodgson “reminded me that

he was demising our murders. He said I told you I was demising your murders, he says

it’s too late, he says you’re dead, you’re all dead.” “And then, you know I was still trying

to plead with him, he shined a light in my face and he whacked me in the face with the

saw.” Ms. Rothschuh stated that she was in shock and decided to run to the road to get

help. Ms. Rothschuh did not see Mr. Hodgson attack Mr. Hulderman or Mr. King, nor did

she actually observe Mr. Hodgson attacking Mr. Wizniak with the stick.

{¶33} Mr. Wizniak described the morning before the incident for the jury. Officers

from the Sheriff’s Office appeared at the campsite. Mr. Wizniak led them to Mr. Hodgson’s

tent where he was sleeping. The officers were responding to a report Mr. Hodgson had

made the day before regarding the verbal exchange at the Subway shop in which he felt

Case No. 2021-L-022 threatened when he refused to return Ms. Rothschuh’s phone. Mr. Wizniak explained to

the officers that he had a friend stay the night, Mr. Kline, and that he had last seen the

phone or “tablet” on one of the cinder blocks by the campfire.

{¶34} Mr. Wizniak testified that later that night he was intoxicated and at some

point called Mr. Hodgson a derogatory, sexually-oriented slur. Mr. Hodgson appeared

angry, and as Mr. Wizniak turned to walk away, Mr. Hodgson struck him with what Mr.

Wizniak believed was a “a log on the side of my head.” He heard Ms. Rothschuh yelling

and “felt the saw and blood” before he passed out. Mr. Wizniak has permanent damage

to his right eye and ear from the attack. His retina detached from his left eye during the

attack, which has since been repaired. Mr. Wizniak further testified that he did not

remember going into the Subway shop to retrieve Ms. Rothschuh’s phone from Mr.

Hodgson or what happened to Mr. Hulderman and Mr. King on the night of the incident.

{¶35} Mr. Hulderman testified that when Mr. Hodgson discovered his phone was

missing, he and Mr. Wizniak walked to Painesville to find Mr. Kline’s tent to question him.

They were unsuccessful. Later that night Mr. Hodgson returned to the campsite with beer

and possibly some food to share.

{¶36} On the night of the incident, Mr. Hodgson “flipped out” after Mr. Wizniak

repeatedly apologized that Mr. Hodgson’s phone was stolen. Mr. Hodgson proceeded to

destroy Mr. Wizniak’s tent, grabbed a stick, “twirled it like a baton,” and smacked Mr.

Wizniak with it on the left side of his head. Mr. Hulderman testified that neither he nor Mr.

Wizniak ever had a stick in their hands. Mr. Hodgson continued to speak angrily to Mr.

Wizniak and grabbed the saw, cutting him on the left side of his throat. Mr. Hodgson

Case No. 2021-L-022 proceeded to walk around hitting everybody on the head, while he decided “who he was

going to do next.”

{¶37} After Mr. Hodgson attacked Ms. Rothschuh and Mr. King, he approached

Mr. Hulderman, who attempted to block Mr. Hodgson with his hand and elbow. Mr.

Hulderman picked up a red camp chair and blocked him. Mr. Hulderman received staples

and stiches. He never heard anyone threaten Mr. Hodgson, and he never observed Ms.

Rothschuh or Mr. King “with anything in their hands.”

{¶38} Mr. King testified that he was sleeping in his tent when he heard Mr.

Hodgson and Mr. Wizniak arguing over whether Mr. Wizniak stole Mr. Hodgson’s phone.

He heard Mr. Wizniak scream in pain, the sound of “another whack,” and Mr. Hulderman

tell Mr. Hodgson to stop hurting Mr. Wizniak. He heard Mr. Hodgson reply that Mr.

Hulderman was next. Mr. King decided he had to try to get help. As soon as he unzipped

his tent, Ms. Rothschuh fell on him, screaming that Mr. Hodgson cut her face. Mr.

Hodgson warned Mr. King to stay in his tent. When he thought he heard Mr. Hodgson

retreating, he left the tent. Mr. Hodgson flashed a light in Mr. King’s face and cut his

throat with a saw. Mr. King was transported to TriPoint Hospital, and his throat was

stitched together after a CT scan revealed no arteries had been severed.

The Defense

{¶39} The defense presented the testimony of six witnesses, including Mr.

Hodgson.

{¶40} Mr. Hodgson’s coworker from the Subway shop, Kelsey Rigo (“Rigo”),

testified that three individuals were in the restaurant threatening Mr. Hodgson on the day

Case No. 2021-L-022 Mr. Wizniak and Ms. Rothschuh attempted to retrieve Ms. Rothschuh’s phone from Mr.

Hodgson. Rigo recalled Mr. Hodgson appeared a bit irritated or angry.

{¶41} Officer Sean Stone (“Officer Stone”) and Officer Kyle Sukys (“Officer

Sukys”), Painesville police officers, responded to a disturbance at the Subway shop at

approximately midday on August 22, 2020. After speaking with Mr. Hodgson, Officer

Stone referred Mr. Hodgson to the Sheriff’s Office and explained the steps to obtain a

protection order. The officers located Mr. Wizniak, Ms. Rothschuh, and Mr. Kline near St.

James Church, and Officer Sukys spoke with Ms. Rothschuh.

{¶42} Mr. Hodgson testified that on the day he moved to the campsite he was

sitting in his tent watching TV on his phone. Hearing voices in the woods, he noticed

people with flashlights. As he unzipped his tent to speak to them, Mr. Wizniak held a gun

to his face. The victims started laughing and sat down to drink alcohol, explaining it was

“just a pellet” or “air gun.” Later, Mr. Wizniak and Mr. Kline got into a loud verbal

altercation. Mr. Hodgson spent most of his time at work during the time he lived at the

campsite. Approximately three or four days before his phone was taken, the other

individuals discovered he was gay.

{¶43} On the night his phone was taken, he was drinking alcohol around the

campfire with the four victims. Mr. Hodgson loaned Mr. Hulderman his phone when he

retired to his tent for the night. When he awoke in the morning, it was missing. He

confronted the victims, who denied the theft and blamed it on Mr. Kline. Several days

later, he was with Mr. Wizniak in downtown Painesville. Mr. Wizniak saw Mr. Kline and

confronted him. Afterward, he relayed to Mr. Hodgson that Mr. Kline denied taking the

phone and that Mr. Wizniak believed him.

Case No. 2021-L-022 {¶44} In reference to Ms. Rothschuh’s phone, Mr. Hodgson testified that he “got

an idea in [his] head * * * to tell [Mr. Wizniak] that this phone now belongs to him and until

you [Mr. Wizniak] find mine I’m not returning this one.” He admitted he was trying to

pressure and threaten the victims, i.e., “to file police reports, stuff of that nature,” in order

to get his phone back.

{¶45} Mr. Hodgson also testified as to the Subway shop incident, recalling that

Mr. Wizniak appeared during his Sunday shift to retrieve Ms. Rothschuh’s phone. Mr.

Hodgson refused, and Mr. Wizniak threatened him. After Mr. Wizniak walked out of the

restaurant, Mr. Kline walked in and threated him. Mr. Hodgson called the Painesville

Police Department, who responded to the scene. He filed an incident report with the

Sheriff’s Office, which detailed the threats made at the restaurant, that he was in fear for

his life, the missing cell phone, and listed his mother’s cell phone number as a contact.

{¶46} That night Mr. Hodgson apologized to Ms. Rothschuh and returned her

phone. In the morning the Sheriff’s Office responded to the incident report and spoke to

Mr. Hodgson and the four victims, who reiterated that Mr. Kline was responsible for the

theft. Mr. Hodgson visited his mother soon afterward, borrowing some money and her

SafeLink cellphone. After visiting a friend and the Subway shop, Mr. Hodgson returned

to the campsite in the evening with a six-pack of beer, which he offered to the victims. At

some point, he and Mr. Wizniak walked to the RediGo store and purchased more beer

and some food.

{¶47} When they returned to the campsite, Mr. Wizniak repeatedly mentioned the

missing cellphone. Ms. Rothschuh and Mr. Hulderman were in the woods collecting

firewood. Mr. Hodgson told him to “shut the f*@# up.” Mr. Wizniak responded by calling

Case No. 2021-L-022 Mr. Hodgson a “f@##&t” and picked up a burning, three-foot branch from the fire,

swinging it at Mr. Hodgson. Mr. Hodgson picked up a glass bottle and hit Mr. Wizniak

over the head. Mr. Wizniak stumbled backward and came forward again with the branch.

Mr. Hodgson grabbed another glass bottle and broke it over Mr. Wizniak’s head. At that

point, Ms. Rothschuh ran out of the woods at Mr. Hodgson with a stick in her hand. Mr.

Hodgson picked up the saw and hit her to defend himself. Mr. Wizniak and Mr. Hodgson

continually yelled at each other “to stop it.” Mr. Hodgson denied having a flashlight in his

hands.

{¶48} After Mr. Hodgson hit Ms. Rothschuh with the saw, he struck Mr. Wizniak

because he was still swinging a branch at him. While Mr. Wizniak was swinging the

branch at him, Mr. Hodgson heard Mr. Hulderman approach him from behind with a chair

in his hand. Mr. Hodgson also swung at Mr. Hulderman, who managed to knock the saw

out of Mr. Hodgson’s hand with the chair. Mr. Hodgson grabbed a broken rake that was

propped against a tree and, holding the metal end, came into contact “with something” as

he swung, breaking the rake. He swung it again, perhaps hitting Mr. Wizniak in the head,

breaking the rake a second time. He threw the remaining piece of the rake in his hand to

the ground.

{¶49} Mr. Hulderman and Mr. Wizniak continued to approach him with a chair and

a stick, respectively. Mr. Hodgson reached for the saw and began striking Mr. Hulderman

with it. Mr. King appeared from his tent. Mr. Hodgson believed he was going to attack

him and struck him once with the saw. Mr. King ran away into the woods. Mr. Hodgson

testified that he realized later that Mr. King might not have been trying to attack him but

may have been attempting to access the path Mr. Hodgson was blocking.

Case No. 2021-L-022 {¶50} Mr. Hodgson further testified that he was trying to back away the entire time

but was unable to retreat because he was being attacked by the victims. Mr. Hodgson

finally turned and ran through the woods to the Marathon gas station to call the police,

testifying, “I needed to get help because I didn’t know if I’d be attacked further and I was

just using a saw on four people.” He threw the saw approximately 20 feet before he exited

the woods. Mr. Hodgson described his fear as he was attacked by multiple people to the

jury.

Self-Defense Jury Instruction

{¶51} Throughout the trial, the state and the defense disputed whether the duty to

retreat jury instruction was applicable to Mr. Hodgson’s defense of self-defense in two

respects. The first issue, and relevant to this appeal, was whether Mr. Hodgson had no

duty to retreat because the campfire was the common area of his “residence,” thus

implicating the so-called Castle Doctrine. Pursuant to the former version of R.C. 2901.09

and the definitions of “residence” and “dwelling” in R.C. 2901.05(D)(2) and (3), the trial

court determined that the campfire was not a part of Mr. Hodgson’s residence; therefore,

he had a duty to retreat. Defense counsel objected for the record. The second issue

dealt with the inverse jury instruction that Mr. Hodgson had a duty to retreat before he

used deadly force.

{¶52} Ultimately, the jury was not given the Castle Doctrine/no duty to retreat

instruction and was instructed on the duty to retreat: “if [Mr. Hodgson] (A) was at fault in

creating the situation giving rise to the event which occurred on or about August 24th,

2020; or (B) did not have reasonable grounds to believe and an honest belief that he was

Case No. 2021-L-022 in imminent or immediate danger of death or great bodily harm; or (C) had a reasonable

means of escape from that danger other than by means of deadly force.”

The Jury’s Verdict

{¶53} The jury found Mr. Hodgson guilty on six counts of felonious assault (Counts

2, 3, 5, 6, 9, and 12) and not guilty on the counts of attempted murder (Counts 1, 4, 7,

and 10) and on two counts of felonious assault (Counts 8 and 11).

Sentencing

{¶54} At the sentencing hearing, the trial court found that Count 2 merged into

Count 3 (felonious assault in violation of R.C. 2903.11(A)(1)) and that Count 5 merged

into Count 6 (felonious assault in violation of R.C. 2903.11(A)(2)) for purposes of

sentencing.

{¶55} The trial court sentenced Mr. Hodgson to a prison term of a minimum of

eight years and a maximum of 12 years on Count 3, eight years on Count 6, six years on

Count 9, and six years on Count 12, to be served consecutive to each other, for a total

prison term of a minimum of 28 years to a maximum of 32 years.

{¶56} Mr. Hodgson raises six assignments of error on appeal:

{¶57} “[1.] The prosecution misstated law during the opening argument which

prejudiced the Appellant.

{¶58} “[2.] Trial Court abused its discretion by failing to correct the State of Ohio’s

incorrect statement during opening arguments.

{¶59} “[3.] Appellant received Ineffective Assistance of Counsel as Trial Counsel

failed to Motion for a Mistrial Due to the State of Ohio’s Improper Statements During

Opening Arguments.

Case No. 2021-L-022 {¶60} “[4.] The State of Ohio Failed to Produce Legally Sufficient Evidence to

Sustain a Conviction of the Appellant.

{¶61} “[5.] Appellant’s Convictions Fell Against the Manifest Weight of the

{¶62} “[6.] Appellant was entitled to the Castle Doctrine despite his status as a

homeless person.”

Prosecutorial Misconduct

{¶63} In his first assignment of error, Mr. Hodgson contends the prosecutor

prejudiced the jury against him by misstating the law during opening statements. More

specifically, Mr. Hodgson argues the prosecutor confused the jury when it explained that

the state needs to prove the elements of the crime beyond a reasonable doubt and that

all other matters are “collateral matters.” Crucially, he asserts the prosecutor failed to

mention that the burden of proof was on the state to disprove Mr. Hodgson acted in self-

defense, a matter that is more than “collateral.”

{¶64} The conduct of a prosecutor during trial is not grounds for error unless it

deprives a defendant of a fair trial. State v. Maurer, 15 Ohio St.3d 239, 266, 473 N.E.2d

768 (1984); State v. Anderson, 11th Dist. Portage No. 2008-P-0002, 2008-Ohio-6413, ¶

35. The test for prosecutorial misconduct is whether the alleged remark was improper

and, if so, whether it prejudicially affected the substantial rights of the defendant. State

v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000). In reviewing allegations of

prosecutorial misconduct, it is our duty to consider the conduct in the context of the entire

trial. See Darden v. Wainwright, 477 U.S. 168, 183, 106 S.Ct. 2464, 91 L.Ed.2d 144

(1986), fn. 15. Additionally, we recognize that an isolated comment, albeit improper, will

Case No. 2021-L-022 not constitute reversible error if it does not deprive the defendant of a fair trial. See State

v. Jenkins, 11th Dist. Trumbull No. 2006-T-0058, 2007-Ohio-4227, ¶ 54.

{¶65} At the outset, we must note that the prosecutor’s remarks occurred during

voir dire before jury selection was completed, not during opening statements. During voir

dire, the prosecutor explained the standard of beyond a reasonable doubt and further

expounded:

{¶66} “Now what are we proving beyond a reasonable doubt? We’re proving the

elements of the offenses and that they are kind of like LEGOS, you have like building

blocks and then you build them up and then you have your offense, okay. So the State

of Ohio has to prove all those elements beyond a reasonable doubt but what’s important

to understand is that the State of Ohio only has to prove the elements of the offenses,

okay. We don’t have to prove everything we have to prove only the elements of the

offenses.

{¶67} “What am I talking about here? We don’t have a burden to collateral matters

so let’s talk about motive.

{¶68} “* * *

{¶69} “We’re only here to determine the elements of the offenses; does everybody

understand the state doesn’t have a burden to collateral matters?”

{¶70} Defense counsel’s objection was overruled.

{¶71} The state reiterated, “Does everybody understand that the state only has a

burden on only the elements of the offenses under the law? Number 3, you look a little

confused.”

Case No. 2021-L-022 {¶72} Thus, a review of the above excerpt reveals Mr. Hodgson’s argument is

wholly inaccurate and taken out of context. “‘[S]horthand references to legal concepts

during voir dire cannot be equated to final instructions given shortly before the jury’s * * *

deliberations.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,

¶ 151, quoting State v. Stallings, 89 Ohio St.3d 280, 285, 731 N.E.2d 159 (2000).

{¶73} In Beasley, the Supreme Court of Ohio found that counsel was not

ineffective for failing to object when the trial court omitted the phrase “beyond a

reasonable doubt” when discussing the process of weighing aggravating circumstances

against mitigating factors during voir dire. Id. at ¶ 151. The trial court gave correct

instructions of the law before the mitigation hearing began and before deliberations, which

cured any earlier misstatement. Id.

{¶74} Similarly in this case, the prosecutor’s statements regarding the burden of

proving the elements of a crime were taken out of context. The prosecutor was

questioning the jurors’ understanding of proving a crime “beyond a reasonable doubt” on

each element of the offense. The prosecutor used motive as an example of a “collateral

matter” that is often not an element of an offense that needs to be proved.

{¶75} The prosecutor’s statements were also preceded by the trial court’s voir dire

introductory statements instructing the jurors that “[l]ater, the Court will furnish the law

which you will apply to the facts” and that “the evidence does not include the indictment

or the opening statements or closing arguments of counsel. The opening statements and

closing arguments of counsel are designed to assist you. They are not evidence.” When

the trial court was finished questioning the jury, before turning voir dire over to the parties,

it again instructed the jury that “[s]ince it would be your duty to decide the case based

Case No. 2021-L-022 solely on the evidence as it’s later defined for you, you must not consider any evidence,

any statement or act as evidence, any statement or act of the attorneys during the trial

including voir dire.” In addition, during its questioning of the jurors, defense counsel

informed the jury that the trial court will instruct them on the applicable law and “talk to

you about self-defense.”

{¶76} Finally, and most fundamentally, the trial court properly instructed the jury

as to the state’s burden of proof as to the elements of the crime and the defense of self-

defense prior to deliberations.

{¶77} Our court and other courts have found that similar “misstatements” that

occurred during voir dire did not result in a substantial prejudice that affected the outcome

of the trial because the jury was not yet impaneled and evidence was not yet introduced.

For example, in State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188

(Dec. 31, 1990), we found no misstatements of law in regard to the prosecutor’s

statements regarding accomplice culpability using hypothetical examples. Id. at *5. We

found the jurors were clearly instructed prior to voir dire that the questions were not

evidence and were similarly instructed as to opening statements and closing arguments.

Id. Further, the trial court instructed the jury on the law, thus curing any possible

misconceptions the jurors may have had from the prosecutor’s examples. Id. The jury

also acquitted the appellant of aggravated murder and found him guilty of the much lesser

offense of involuntary manslaughter, which was in his favor. Id. Finally, given the

overwhelming evidence of the appellant’s guilt, any such misconception or error would

constitute harmless error. Id. at *6.

Case No. 2021-L-022 {¶78} Likewise in State v. Myers, 2d Dist. Darke No. 1643, 2006-Ohio-1604, the

Second District determined that various misstatements of law by the trial court and the

prosecutor during voir dire were not prejudicial where the jury was repeatedly instructed

as to the proper law, including in the final jury instructions. Id. at ¶ 20-21. In another

case, State v. Casey, 2d Dist. Miami No. 19940, 2004-Ohio-1017, defense counsel was

found not ineffective for failing to object to the prosecutor’s misstatements during voir dire

where defense counsel addressed the misstatements, the trial court instructed the jury

on the state’s burden of proof at the beginning and the end of the trial, and evidence of

the appellant’s guilt was overwhelming. Id. at ¶ 59-60.

{¶79} In State v. Stevens, 2016-Ohio-446, 58 N.E.3d 584 (3d Dist.), the Third

District determined that even if the prosecutor’s statements were improper, the appellant

failed to show that a reasonable probability exists that but for the statements, the result

of trial would have been different. Id. at ¶ 56. Further, the improper remarks occurred

during voir dire, which was before the jury had been impaneled and evidence was

introduced. Id.; see State v. Heller, 10th Dist. Franklin No. 01AP-648, 2002 WL 338143,

*5 (Mar. 5, 2002).

{¶80} Turning to the case at hand, Mr. Hodgson failed to prove that the

prosecutor’s omission of discussing the state’s burden on self-defense when explaining

the state’s burden of establishing elements of an offense were “misstatements” and that

a reasonable probability exists that but for the statements, the outcome of his trial would

have been different. The statements occurred before the jury was impaneled and

evidence was introduced, and the court accurately instructed the jury before deliberations

on the state’s burden on self-defense.

Case No. 2021-L-022 {¶81} Mr. Hodgson’s first assignment of error is without merit.

Prosecutorial Misstatements

{¶82} In his second and third assignments of error, Mr. Hodgson further

challenges the prosecutor’s “misstatement of the law,” albeit under the guise of (1)

whether the trial court abused its discretion in overruling defense counsel’s objection to

the prosecutor’s remarks, and (2) whether defense counsel was ineffective for failing to

file a motion for a mistrial based on the prosecutor’s misstatement of law.

{¶83} Because we found Mr. Hodgson’s first assignment of error to be without

merit, we necessarily find that the trial court did not abuse its discretion in its ruling on the

objection and that defense counsel was not ineffective. See State v. Butler, 11th Dist.

Ashtabula No. 2000-A-0057, 2001 WL 935476, *5 (Aug. 17, 2001).

{¶84} Thus, Mr. Hodgson’s second and third assignments of error are without

merit.

Sufficiency of the Evidence

{¶85} In Mr. Hodgson’s fourth assignment of error, he challenges the sufficiency

of the evidence as to self-defense. He contends the state did not introduce sufficient

evidence to establish beyond a reasonable doubt that he did not act in self-defense. He

argues that the victims’ testimonies were contradictory because everyone was intoxicated

during the incident and Mr. Wizniak’s comments to him prior to the ensuing melee were

belligerent and threatening. Furthermore, Mr. Hodgson testified that he was in fear for

his life multiple times; he was forced to stay at the homeless encampment due to COVID

and the local homeless shelter’s policies; and finally, he was forced to defend himself

against multiple attackers.

Case No. 2021-L-022 {¶86} It appears from Mr. Hodgson’s arguments that he is attacking the manifest

weight of the evidence rather than the sufficiency of the state’s evidence. Nevertheless,

we will address his sufficiency argument under the applicable standard.

{¶87} In State v. Bunfill, 7th Dist. Belmont No. 03 BE 14, 2004-Ohio-1199, the

Seventh District aptly explained these different standards of review:

{¶88} “[A]rguments concerning the ‘sufficiency of the evidence’ should not be

confused with those addressing the ‘manifest weight of the evidence’. See State v.

Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph two of the syllabus

(‘The legal concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.’) ‘Sufficiency of the evidence’ is ‘“a term of art

meaning that legal standard which is applied to determine whether the case may go to

the jury or whether the evidence is legally sufficient to support the jury verdict as a matter

of law.”’ Id. at 386, 678 N.E.2d 541, quoting Black’s Law Dictionary (6 Ed .1990) [sic]

1433. The relevant inquiry when determining whether the evidence is sufficient to support

the verdict ‘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.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus. ‘The verdict will not be disturbed unless the

appellate court finds that reasonable minds could not reach the conclusion reached by

the trier of facts.’ Id. at 273, 574 N.E.2d 492. Whether the evidence is legally sufficient

is a question of law. Thompkins at 386, 678 N.E.2d 541.

{¶89} “In contrast, when reviewing whether a conviction was against the manifest

weight of the evidence, we must ‘examine whether the evidence produced at trial “attains

Case No. 2021-L-022 the high degree of probative force and certainty required of a criminal conviction.”’ State

v. Tibbetts (2001), 92 Ohio St.3d 146, 163, 749 N.E.2d 226, quoting State v. Getsy (1998),

84 Ohio St.3d 180, 193, 702 N.E.2d 866. In order to do this, we must examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether the fact-finder clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. Id. ‘“Weight is not a question of mathematics, but depends on its effect in

inducing belief.”’ (Emphasis sic.) Thompkins at 387, 678 N.E.2d 541, quoting Black’s

Law Dictionary (6 Ed.1990) 1594.” Id. at ¶ 7-8.

{¶90} For purposes of establishing that Mr. Hodgson did not act in self-defense,

the state was required to disprove beyond a reasonable doubt at least one of the following

(all three of these elements must be present to establish self-defense):

{¶91} Mr. Hodgson (1) was not at fault in creating the situation giving rise to the

affray; (2) had a bona fide belief that he was in imminent danger of death or great bodily

harm and that his only means of escape from such danger was in the use of such force;

and (3) he did not violate any duty to retreat or avoid the danger. State v. Barnes, 94

Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002); R.C. 2901.05(B)(1). Consistent with the self-

defense requirement that force must be the only means of escape, a person may only

use as much force as is reasonably necessary to repel the attack. State v. Thomas, 77

Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997); State v. Oller, 2017-Ohio-814, 85 N.E.3d

1135, ¶ 61 (10th Dist.).

{¶92} As our review of the facts above indicates, the state presented more than

sufficient evidence from which a jury could find Mr. Hodgson did not act in self-defense,

Case No. 2021-L-022 or, conversely, that the state disproved at least one of the three elements of self-defense

beyond a reasonable doubt. There was evidence that Mr. Hodgson was at fault in

creating the situation giving rise to the affray. For instance, Ms. Rothschuh testified that

Mr. Hodgson refused to return her phone and reported them to the police following the

Subway shop incident. Mr. Wizniak and Mr. Hulderman testified that Mr. Hodgson grew

angry at Mr. Wizniak for verbally insulting him and began attacking him with a stick. None

of the victims saw anyone besides Mr. Hodgson with a weapon in his or her hands. As

for the attack itself, all four of the victims testified to similar versions of Mr. Hodgson

attacking them violently with a stick and a saw to their heads and necks, which was

consistent with their extensive injuries. The victims, with the exception of Mr. Wizniak,

fled the campsite one by one while Mr. Hodgson was attacking them. Thus, there was

evidence from which a jury could find that Mr. Hodgson could have retreated instead of

using force and that attacking people with a rusty saw on their heads and necks was not

a “reasonable use of force” under the circumstances.

{¶93} That there was contradictory testimony from Mr. Hodgson and a competing

version of events does not go to the sufficiency of the evidence and whether the state

introduced evidence on each element of the offenses and self-defense, but rather goes

to the credibility of the witnesses and the manifest weight of the evidence. Since much

of Mr. Hodgson’s argument pertains to the manifest weight of the evidence, it is well-

settled that when assessing the credibility of witnesses, “[t]he choice between the

credibility of witnesses and their conflicting testimony rests solely with the finder of fact

and an appellate court may not substitute its own judgment for that of the finder of fact.”

State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). Furthermore, “if the

Case No. 2021-L-022 evidence is susceptible to more than one interpretation, a reviewing court must interpret

it in a manner consistent with the verdict.” State v. DeHass, 10 Ohio St.2d 230, 234, 227

N.E.2d 212 (1967).

{¶94} Mr. Hodgson’s fourth assignment of error is without merit.

Manifest Weight of the Evidence

{¶95} In his fifth assignment of error, Mr. Hodgson contends his convictions for

felonious assault are not supported by the manifest weight of the evidence because the

victims’ testimonies were highly contradictory, three of the victims admitted they never

saw how the incident began, all agreed they were intoxicated, and the flashlight the

victims alleged Mr. Hodgson flashed in their faces was never found. Thus, the victims’

contradictory testimonies and unverified statements do not support the verdict.

{¶96} “[W]eight of the evidence addresses the evidence’s effect of inducing

belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

“In other words, a reviewing court asks whose evidence is more persuasive—the state’s

or the defendant’s?” Id.

{¶97} “‘The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury 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, 485 N.E.2d 717 (1st

Dist.1983).

{¶98} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

Case No. 2021-L-022 ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

“‘The discretionary power to grant a new trial should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at

175.

{¶99} As our review of the facts indicates, there was more than enough evidence

to support the jury’s verdict. Two of the victims testified that Mr. Hodgson attacked Mr.

Wizniak at the campsite after either Mr. Wizniak called him a sexually oriented slur or

apologized for the theft of Mr. Hodgson’s phone. While there is no doubt that all of the

individuals involved had been drinking alcohol and were intoxicated to some extent, the

victims’ testimonies were consistent with their traumatic injuries and the evidence found

by the officers at the campsite. Mr. Hodgson, by his own testimony, stated that he had

an idea in his head to “hold Ms. Rothschuh’s phone hostage” and intimidate the victims

by calling the police several days before the violent altercation. He further testified that

he continued attacking Mr. Wizniak once he was on the ground and blocked Mr. King

from escaping down the path in the woods. He told the officers who responded to the

scene and in the police interview that he attacked four people with a saw and a stick. He

also walked away from allegedly being attacked by four people with a mere scratch on

this thumb.

{¶100} As we explained in our discussion of Mr. Hodgson’s insufficiency of the

evidence argument, simply because the victims’ testimonies were contradictory in nature

goes to their credibility and the jury was free to believe the state’s version of the incident.

See Awan at 123.

Case No. 2021-L-022 {¶101} Mr. Hodgson’s fifth assignment of error is without merit.

Duty to Retreat – The Castle Doctrine

{¶102} In his sixth assignment of error, Mr. Hodgson contends he was entitled to a

Castle Doctrine jury instruction, i.e., that he had no duty to retreat because he was

protecting himself from the victims’ attack in his own residence. Thus, he asserts R.C.

2901.05, as applied, violates his right to equal protection under the Fourteenth

Amendment to the United States Constitution and Article I, Section 2 of the Ohio

Constitution by denying him that instruction based on his status as a homeless person.

{¶103} The Fourteenth Amendment to the United States Constitution provides that

“[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the

laws.” The Equal Protection Clause prevents states from treating people differently under

its laws on an arbitrary basis. State v. Williams, 88 Ohio St.3d 513, 530, 728 N.E.2d 342

(2000), citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 681, 86 S.Ct. 1079,

16 L.Ed.2d 169 (1966) (Harlan, J., dissenting). “‘Whether any such differing treatment is

to be deemed arbitrary depends on whether or not it reflects an appropriate differentiating

classification among those affected; the clause has never been thought to require equal

treatment of all persons despite differing circumstances.’” Id., quoting Harper at 681

(Harlan, J., dissenting).

{¶104} Under the Equal Protection Clause, a legislative distinction need only be

created in such a manner as to bear a rational relationship to a legitimate state interest.

Id., citing Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).

These distinctions are invalidated only where “‘they are based solely on reasons totally

unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to

Case No. 2021-L-022 justify them.’” Id., quoting Clements at 963; see also, Heller v. Doe, 509 U.S. 312, 320,

113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Am. Assn. of Univ. Professors, Cent. State Univ.

v. Cent. State Univ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999). This rational basis

analysis is discarded for a higher level of scrutiny only where the challenged statute

involves a suspect class or a fundamental constitutional right. Id., citing Clements at 963;

see also Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d

313 (1985).

{¶105} The former version of R.C. 2901.09(B) provides that “[f]or purposes of any

section of the Revised Code that sets forth a criminal offense, a person who lawfully is in

that person’s residence has no duty to retreat before using force in self-defense, defense

of another, or defense of that person’s residence, and a person who lawfully is an

occupant of that person’s vehicle or who lawfully is an occupant in a vehicle owned by an

immediate family member of the person has no duty to retreat before using force in self-

defense or defense of another.”1

{¶106} “Residence” has the same meaning as in R.C. 2901.05. R.C. 2901.09(A).

R.C. 2901.05(D)(3) defines “residence” as “a dwelling in which a person resides either

temporarily or permanently or is visiting as a guest.” “Dwelling” means “a building or

conveyance of any kind that has a roof over it and that is designed to be occupied by

people lodging in the building or conveyance at night, regardless of whether the building

or conveyance is temporary or permanent or is mobile or immobile. As used in this

division, a building or conveyance includes, but is not limited to, an attached porch, and

1. The former version of R.C. 2901.09(B) was effective from September 9, 2008, to April 5, 2021. 30

Case No. 2021-L-022 a building or conveyance with a roof over it includes, but is not limited to, a tent.” R.C.

2901.05(D)(2).

{¶107} After defense counsel presented his argument requesting the Castle

Doctrine jury instruction, the court stated, “His residence is the tent. It’s not the living

room with the open skies it’s the tent that’s down the hill, that’s his residence. The sky is

not a ceiling. The tent has a ceiling that the sky doesn’t.” After defense counsel objected,

the court again stated, “He’s in an open area with a bunch of tents here and a tent way

down there.” Defense counsel reiterated that “we had everyone testify that where this

happened was in the living room.” The court replied, “Okay. You can call it, you know

you can call it a romper room if you want or the game room, you can call it whatever you

want but it ain’t a residence or a dwelling, that’s the way this [R.C. 2901.05(D)(2) and (3)]

is crafted.”

{¶108} The trial court found the definition of “dwelling” pursuant to R.C.

2901.05(D)(2) and the factual circumstances of this case controlling. We agree, as

applied to this case, Mr. Hodgson’s homeless status is irrelevant because the definition

of a “dwelling” specifically includes a tent. A shared campfire, however, is excluded

pursuant to the statute because it is not “[a] building or conveyance of any kind that has

a roof over it and that is designed to be occupied by people lodging in the building or

conveyance at night.” (Emphasis added.) R.C. 2901.05(D)(2). The campfire is

analogous to other areas close to a residence that has not been considered part of a

“dwelling.” For instance, it has been held that a driveway is not a residence under R.C.

2901.05(D)(3) because it is not a dwelling under R.C. 2901.05(D)(2). See State v. Moore,

2020-Ohio-4321, 158 N.E.3d 111, ¶ 28 (4th Dist.). Similarly, after considering the conduct

Case No. 2021-L-022 and location of the victim at the time the appellant was claiming to be acting in self-

defense, the public street running in front of the appellant’s house was not considered a

“residence under any plausible interpretation of that term.” State v. Estelle, 2021-Ohio-

2636, --- N.E.3d ---, ¶ 16 (3d Dist.).

{¶109} Quite simply, a no duty to retreat instruction would be inappropriate based

on the physical location of the campfire and Mr. Hodgson’s tent. The map of the

encampment demonstrated that Mr. Hodgson’s tent was separate from the rest of the

campsite, being located down a small hill and on a different path. Thus, his tent was

nowhere near the campfire, and not even an analogous “front porch” argument can be

made. For example, in Moore, supra, the Fourth District found that R.C. 2901.09(B) did

not apply because the appellant was not in his residence when he used force; he

voluntarily left his garage, went into the driveway and was several feet from the garage

entrance. Id. at ¶ 21. Although the appellant attempted to argue the driveway was

curtilage, the appellant provided no analysis of the curtilage factors. Id. In addition, R.C.

2901.05(D)(2) does not state that a building includes curtilage, only that a building

“includes, but is not limited to, an attached porch.” Id. The appellant did not even attempt

to demonstrate his driveway was analogous to an attached porch. Id.

{¶110} Mr. Hodgson attempts to argue that a homeless person who seeks shelter

under a “highway overpass” would not be in a “dwelling” because it is “not designed for

habitation.” That situation, however, is not the situation herein, and newly amended R.C.

2901.09 may foreclose the hypothetical equal protection violation Mr. Hodgson is

suggesting. Effective April 6, 2021, R.C. 2901.09(B) now states that “[f]or purposes of

any section of the Revised Code that sets forth a criminal offense, a person has no duty

Case No. 2021-L-022 to retreat before using force in self-defense, defense of another, or defense of that

person’s residence if that person is in a place in which the person lawfully has a right to

be.” So long as the person, whether homeless or not, is in a place the person lawfully

has a right to be, whether that be a highway overpass, the person has no duty to retreat

before using force to protect oneself, another, or his/her residence. We decline, however,

to determine a hypothetical situation that is not presented in this case.

{¶111} Because Mr. Hodgson’s status as a homeless person did not preclude the

Castle Doctrine jury instruction, the Equal Protection Clause is not implicated in this case.

Mr. Hodgson’s sixth assignment of error is without merit.

{¶112} The judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.

Case No. 2021-L-022