[Cite as State v. Johnson, 2014-Ohio-62.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0066-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CHESTER E. JOHNSON COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 11CR0292
DECISION AND JOURNAL ENTRY
Dated: January 13, 2014
WHITMORE, Judge.
{¶1} Defendant-Appellant, Chester Johnson, appeals from his convictions in the
Medina County Court of Common Pleas. This Court affirms.
I
{¶2} While driving home sometime around midnight, Johnson saw his cousin, Danny
McCutcheon, standing outside a bar and picked him up. The two briefly visited another bar
before Johnson drove McCutcheon home. At the time, McCutcheon was staying with a man
named Jeff Lutz and Lutz’ girlfriend, Ashley McCaman. McCutcheon invited Johnson to come
meet Lutz when they arrived at his house, so Johnson parked his car and walked up to the house
with McCutcheon. Both Lutz and his friend, Andrew Leguillon, were sitting on the enclosed
porch drinking beer when Johnson and McCutcheon arrived. The events that transpired next
were a matter of dispute in the court below. 2
{¶3} According to Lutz and Leguillon, Johnson attacked Lutz and ultimately retrieved
a rubber mallet from his car. Johnson then broke through the locked metal gate surrounding
Lutz’ home and used the mallet to strike Lutz and McCutcheon. According to Johnson, Lutz
started the fight and Lutz, Leguillon, and McCutcheon chased him out into the street when he
tried to run away. He then used the mallet, which Lutz had thrown at him, to strike at the men in
order to end the attack. Both Lutz and McCutcheon suffered injuries as a result of the attack.
Specifically, McCutcheon was treated for a head wound that was bleeding profusely, and Lutz
was treated for a concussion. Lutz later had to have surgery because his doctor discovered that
he was suffering from a pseudoaneurysm in his carotid artery as a result of a blow to the head.
{¶4} Johnson also suffered an injury to his left forearm as a result of the events that
transpired. Johnson claimed that he sustained the injury when one of the men reached into his
car and stabbed him with a screwdriver. There was testimony, however, that the puncture
wounds on Johnson’s arm visually matched the points that jutted out of the metal fence
surrounding Lutz’ house. DNA from a piece of flesh that the police discovered on one of the
fence’s points was determined to be consistent with Johnson’s DNA.
{¶5} A grand jury indicted Johnson on each of the following counts: (1) felonious
assault, in violation of R.C. 2903.11(A)(1); (2) felonious assault, in violation of R.C.
2903.11(A)(2); and (3) breaking and entering, in violation of R.C. 2911.13(B). Both felonious
assault counts also contained attendant repeat violent offender (“RVO”) specifications, pursuant
to R.C. 2941.149. The matter went to trial, and a jury found Johnson guilty on all three counts.
Johnson then stipulated to the prior convictions that formed the basis of his RVO specifications,
and the court found him guilty of the specifications. The court sentenced Johnson to a total of
fourteen years in prison. 3
{¶6} Johnson now appeals and raises three assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT VIOLATED CONSTITUTIONAL DUE PROCESS AND COMMITTED PLAIN ERROR TO THE PREJUDICE OF DEFENDANT- APPELLANT BY REFUSING TO GIVE A JURY INSTRUCTION REQUESTED BY THE DEFENSE ON THE “CASTLE DOCTRINE” OF SELF- DEFENSE, PURSUANT TO R.C. 2901.05(B) AND R.C. 2901.09, INSTEAD OF ONLY THE STANDARD JURY INSTRUCTION ON SELF-DEFENSE, WHERE DEFENDANT-APPELLANT WAS ASSAULTED FIRST WHILE LAWFULLY OCCUPYING HIS OWN VEHICLE.
{¶7} In his first assignment of error, Johnson argues that the trial court erred when it
refused to give the jury additional instructions regarding his theory of self-defense. Specifically,
he argues that the court should have instructed the jury that, when a person lawfully occupies his
vehicle, that person has no duty to retreat and a presumption of self-defense arises. We disagree.
{¶8} “This Court reviews a trial court’s decision to give or not give jury instructions
for an abuse of discretion under the particular facts and circumstances of the case.” State v.
Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 68. “A trial court’s failure to give a
proposed jury instruction is only reversible error if the defendant demonstrates that the trial court
abused its discretion, and that the defendant was prejudiced by the court’s refusal to give the
proposed instruction.” State v. Sanders, 9th Dist. Summit No. 24654, 2009-Ohio-5537, ¶ 45,
quoting Azbell v. Newark Grp., Inc., 5th Dist. Fairfield No. 07 CA 00001, 2008-Ohio-2639, ¶ 52.
An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶9} To establish self-defense in circumstances involving the application of deadly
force, a defendant must prove that he: “(1) * * * was not at fault in creating the situation giving
rise to the affray; (2) * * * ha[d] a bona fide belief that he was in imminent danger of death or 4
great bodily harm and that his only means of escape from such danger was in the use of such
force; and (3) * * * [did] not [] violate[] any duty to retreat or avoid the danger.” State v.
Westfall, 9th Dist. Lorain No. 10CA009825, 2011-Ohio-5011, ¶ 19, quoting State v. Tucker, 9th
Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 4. Yet, a person does not have a duty to
retreat if that person uses force in self-defense while “lawfully [] an occupant of that person’s
vehicle.” R.C. 2901.09(B).
{¶10} Johnson argues that the trial court abused its discretion by not instructing the jury,
pursuant to R.C. 2901.09(B), that he did not have a duty to retreat once lawfully inside his car.
The trial court refused to issue the instruction because, even under Johnson’s version of the
events, he was not inside his vehicle when he attacked Lutz and McCutcheon. Having reviewed
the record, we cannot conclude that the court abused its discretion by refusing to issue the
instruction.
{¶11} Lutz testified that he and his best friend, Leguillon, were relaxing on the front
porch of his home when Johnson arrived with McCutcheon. Johnson and McCutcheon began to
argue with one another, and Lutz encouraged them to stop. According to Lutz, Johnson then
punched Lutz in the face and choked him until Leguillon intervened. Leguillon physically
restrained Johnson, but released him when he indicated that he was done fighting. When
Leguillon released Johnson, Johnson left the porch to walk to his car and either Lutz or Leguillon
locked the metal gate surrounding the house. Johnson returned from his car with a claw hammer,
but was unable to open the locked gate. He then threw the hammer toward the house and walked
back to his car. When Johnson returned a second time, he was carrying a rubber mallet. Johnson
then managed to rip the gate open and attacked Lutz and McCutcheon with the rubber mallet. 5
Lutz denied ever chasing Johnson out into the street or attacking him in any manner. Leguillon
and McCaman, Lutz’ girlfriend, corroborated Lutz’ version of the events.
{¶12} Johnson testified that, while he was on the porch, Lutz accused him of
disrespecting McCutcheon and struck him with the beer he was holding. In response, Johnson
punched Lutz in the face. Johnson testified that Lutz then tried to grab his legs while Leguillon
jumped on him from behind and placed him in a choke hold. A fight ensued, and, when Johnson
was finally released from the choke hold, he fled the porch and ran to his car. According to
Johnson, Lutz, Leguillon, and McCutcheon ran after him.
{¶13} Johnson testified that he was able to get into his car before the three men grabbed
at him and tried to pull him out through his window. Johnson further testified that one of the
men used a screwdriver to stab him in the arm. According to Johnson, he could not retrieve his
keys from his seated position, so he flung open the car door, knocked down his attackers, and
pulled out his keys. Johnson testified that he then got back into the driver’s seat, started the car,
and began to pull away. Just then, however, Lutz threw a rubber mallet at Johnson’s car.
Johnson stated that the mallet ricocheted off the door and his head before coming to rest in his
lap. He then decided that he “had to make [the attack] stop,” so he put the car in park and got out
with the mallet. When he did so, Leguillon ran and Lutz and McCutcheon put their hands in the
air. Nevertheless, Johnson testified that he swung the mallet at Lutz and McCutcheon. After he
struck Lutz and McCutcheon, Johnson got back into his car and drove off.
{¶14} R.C. 2901.09(B) only eliminates the duty to retreat element of self-defense if the
person using force “lawfully is an occupant of that person’s vehicle.” Lutz, Leguillon, and
McCaman all testified that Johnson attacked Lutz and McCutcheon with a rubber mallet after he
retrieved the mallet from his car and broke through the gate surrounding Lutz’ house. Moreover, 6
even under Johnson’s version of the events, he was not occupying his car when he used force
against Lutz and McCutcheon. Johnson’s testimony was that he chose to stop his car and get out
for the purpose of using force against Lutz and McCutcheon. He, therefore, was not an
“occupant” of his vehicle when he attacked Lutz and McCutcheon. See State v. Lampley, 5th
Dist. Richland No. 10CA30, 2012-Ohio-4071, ¶ 121. Consequently, he was not entitled to an
instruction under R.C. 2901.09(B), and the court did not abuse its discretion by failing to issue it.
{¶15} Johnson also argues that the trial court committed plain error by not instructing
the jury that he was entitled to a presumption of self-defense. Under Crim.R. 52(B), “[p]lain
errors or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶16} R.C. 2901.05(B) affords a presumption of self-defense to a person who uses
defensive force against another person who “has unlawfully and without privilege to do so
entered[] the * * * vehicle occupied by the person using the defensive force.” Johnson cannot
demonstrate plain error as a result of the trial court’s failure to give the foregoing instruction.
Under Johnson’s own version of the events, he was in the process of driving away when he
instead decided to stop his car, put it in park, and get out with the mallet. No one was entering
Johnson’s car at that point in time. See R.C. 2901.05(B). Johnson’s argument that the trial court
committed plain error by not giving an instruction under R.C. 2901.05(B) lacks merit. His first
assignment of error is overruled. 7
Assignment of Error Number Two
THE TRIAL COURT VIOLATED CONSTITUTIONAL DUE PROCESS AND COMMITTED PLAIN ERROR TO THE PREJUDICE OF DEFENDANT- APPELLANT BY ANSWERING A JURY QUESTION DUIRNG (sic) DELIBERATIONS ON THE DIFFERENCE BETWEEN COUNT I, FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11(A)(1) – CAUSING SERIOUS PHYSICAL HARM – AND COUNT II, FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11(A)(2) – CAUSING PHYSICAL HARM USING A DEADLY WEAPON – BY MAKING REFERENCE TO AND EXPLAINING THE MERGER DOCTRINE FOR PURPOSES OF SENTENCING.
{¶17} In his second assignment of error, Johnson argues that the manner in which the
trial court answered a question posed by the jury during deliberations violated his due process
rights. We disagree.
{¶18} During deliberations, the jury posed a question regarding the difference between
Johnson’s two felonious assault counts and whether the counts went “hand in hand.” The court
instructed the jury:
The elements in Count I are that * * * the State has to prove beyond a reasonable doubt that [Johnson] knowingly caused serious physical harm as that is defined, okay?
In Count II, they have to show that he knowingly caused or attempted to cause physical harm with a deadly weapon, so the first count, the element does not include with a deadly weapon but he has to knowingly cause or attempt to cause serious physical harm.
In the second charge, it’s knowingly causing or attempting. The first charge is knowingly causing serious physical harm. The second charge is knowingly causing or attempting to cause physical harm with a deadly weapon.
The court then asked both the State and defense counsel if they were satisfied with the court’s
definition of the two offenses, and both sides responded affirmatively.
{¶19} Moving on to the portion of the jury’s question dealing with whether the offenses
went “hand in hand,” the court stated:
Then you say you wanted to know do Count I and II go hand in hand. * * * [T]he law in Ohio is that these acts will merge for purposes of sentencing. If he was to 8
be sentenced and only if * * * he was convicted of both of these charges and if you found by proof beyond a reasonable doubt that he was guilty of both of these charges, they would merge for purposes of sentencing.
The court then asked both the State and defense counsel if they believed the court had given “a
correct summary of the law in Ohio.” Both sides responded affirmatively. The State, however,
asked the court to define the doctrine of merger for the jury, and the court agreed.
{¶20} In defining the concept of merger, the court stated:
[T]he merger doctrine is a person is accused of two separate offenses, okay, but there was really only one act that did these two offenses, do you follow me? So, therefore, the law says well, * * * the State can charge both of these offenses and the person can be found guilty of both of these offenses, but because there was only one act, you can only be sentenced on one of those offenses.
The jury foreperson then stated “[a]nd I believe that explains it.” The court then asked both the
State and defense counsel if they were satisfied with the court’s definition of the merger doctrine.
Both sides responded affirmatively.
{¶21} “Failure to object to a jury instruction limits review of the alleged error to the
plain error standard.” State v. Bellomy, 9th Dist. Medina No. 12CA0075-M, 2013-Ohio-3187, ¶
19. Johnson argues that the court committed plain error in answering the jury’s question and in
defining the concept of merger because the court, “in effect, gave the jury permission to find
[him] ‘guilty’ of both counts of felonious assault.” As previously noted, “[n]otice of plain error
under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d at paragraph three of the
syllabus.
{¶22} Even assuming that the court should not have explained the doctrine of merger for
the jury, the record reflects that the court gave the jury additional instructions directly after it 9
asked the parties if they were satisfied with its definition of merger. Specifically, the court
[J]ust to reiterate and make sure that we understand each other, my explaining this to you does not do the following things.
Number one, it does not indicate my personal view * * * on the facts of this case because that is not my job in a jury trial.
Number two, it certainly is not my intention by explaining these things to indicate in any way the State of Ohio doesn’t have (sic) a lesser burden. It still has a burden of establishing beyond a reasonable doubt.
Thus, the judge specifically instructed the jury that he had not meant to convey any personal
views about the evidence and that the State bore the burden of proving its entire case beyond a
reasonable doubt.
{¶23} “A jury is presumed to follow the instructions, including curative instructions,
given it by a trial judge.” State v. Simpson, 9th Dist. Lorain No. 11CA010138, 2012-Ohio-3195,
¶ 37, quoting State v. Garner, 74 Ohio St.3d 49, 59 (1995). In light of the court’s curative
instruction to the jury, Johnson cannot demonstrate that he was prejudiced by the court’s
explanation of the merger doctrine. Johnson’s second assignment of error is overruled.
Assignment of Error Number Three
DEFENDANT-APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶24} In his third assignment of error, Johnson argues that he received ineffective
assistance of counsel. We disagree.
{¶25} A successful ineffective assistance claim requires proof that: (1) counsel’s
performance was deficient to the extent that “counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate 10
prejudice, Johnson must prove that “there exists a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph three of the syllabus. This Court need not address both Strickland
prongs if the defendant has failed to prove either one. State v. Ray, 9th Dist. Summit No. 22459,
2005-Ohio-4941, ¶ 10.
{¶26} Johnson argues that his trial counsel was ineffective because he: (1) failed to
request a jury instruction on the castle doctrine, pursuant to R.C. 2901.09; (2) failed to object
when the court explained the merger doctrine to the jury; and (3) referenced Johnson’s prior
convictions during voir dire. Contrary to Johnson’s first argument, the record reflects that his
counsel requested a jury instruction on the castle doctrine, pursuant to R.C. 2901.09. The trial
court refused to issue the requested instruction because it was not warranted under the evidence.
Johnson’s counsel, therefore, was not ineffective on the basis that he failed to request the castle
doctrine instruction.
{¶27} With regard to trial counsel’s failure to object to the court’s answer to the jury’s
question, we have already determined that Johnson was not prejudiced by the court’s answer.
Because Johnson cannot show that he was prejudiced by the court’s answer, he cannot succeed
on his second ineffective assistance of counsel claim. See Ray at ¶ 10. Likewise, we must
conclude that Johnson cannot succeed on his third ineffective assistance of counsel claim. This
Court has recognized that, in certain instances, trial counsel may make a strategic decision to
inform the jury of a defendant’s prior convictions. See State v. Adams, 9th Dist. Medina No.
13CA0008-M, 2013-Ohio-4258, ¶ 21; State v. Gott, 9th Dist. Lorain No. 93CA005560, 1993
WL 539595, *7-8 (Dec. 22, 1993). Well before trial, the State filed a notice of its intent to
impeach Johnson with his prior convictions, should he choose to testify. Johnson did testify and 11
was cross-examined on his prior convictions. Additionally, Johnson presented numerous
character witnesses to testify regarding his reputation, and the State cross-examined those
witnesses with regard to Johnson’s prior convictions. Given Johnson’s choice to testify and to
introduce character witnesses to speak to his reputation, his counsel’s choice to “tak[e] the sting
out of the prosecution’s anticipated line of questioning would clearly constitute sound trial
strategy.” Gott at *8. Consequently, Johnson’s trial counsel was not ineffective for introducing
Johnson’s prior record during voir dire. Johnson’s third assignment of error is overruled.
III
{¶28} Johnson’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 12
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT
HENSAL, J. CONCURS.
CARR, P. J. DISSENTING.
{¶29} I respectfully dissent. I would conclude that the trial court improperly instructed
the jury regarding the merger doctrine and that the instruction was prejudicial. Except in rare
cases involving the death penalty, sentencing issues remain within the sole providence of the trial
court. Nevertheless, here, the trial court explained:
[T]he merger doctrine is a person is accused of two separate offenses, okay, but there was really only one act that did these two offenses, do you follow me? So, therefore, the law says well, * * * the State can charge both of these offenses and the person can be found guilty of both of these offenses, but because there was only one act, you can only be sentenced on one of those offenses.
{¶30} The trial court’s explanation that the State could charge, and the defendant could
be found guilty of, multiple counts conveyed a message to the jury that their verdicts on the
individual counts were immaterial at the end of the day because it was not particularly important
whether Johnson was found guilty of one or both counts of felonious assault since he would only
be sentenced on one. The explanation was especially confusing, given that there were two
victims who suffered physical injuries in this case and only two counts of felonious assault.
Accordingly, I believe that the trial court’s instruction was improper and prejudicial. 13
{¶31} Moreover, unlike the majority, I do not believe that the trial court’s purported
“curative” instruction dispelled the prejudicial effect of the merger instruction. The trial court’s
subsequent comments did nothing to address the importance of the jury’s consideration of each
count independently, without consideration for any sentence that might be imposed.
{¶32} For the reasons above, I would sustain Johnson’s second assignment of error,
reverse his conviction, and remand the matter for a new trial.
APPEARANCES:
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.