[Cite as State v. Nye, 2013-Ohio-3783.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-05
v.
SCOTT E. NYE, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0207
Judgment Affirmed
Date of Decision: September 3, 2013
APPEARANCES:
Lisa A. Miller for Appellant
Derek W. DeVine and Heather N. Jans for Appellee Case No. 13-13-05
SHAW, J.
{¶1} Defendant-appellant, Scott E. Nye (“Nye”), appeals the February 22,
2013 judgment of the Seneca County Court of Common Pleas journalizing his
conviction by a jury for one count of trespass in a habitation when a person is
present or likely to be present, in violation of R.C. 2911.12(B), (E), a felony of the
fourth degree, and one count of felonious assault, in violation of R.C.
2903.11(A)(2), (D)(1)(a), a felony of the second degree, and sentencing him to
serve three years in prison.
{¶2} On March 2, 2012, at approximately 10:13 p.m., Lisa Robinson
(“Lisa”) placed a 9-1-1 call requesting an ambulance come to her home at 205 Elm
Avenue in Tiffin, Ohio. Lisa stated that “some random” man came to her door,
attacked her fiancé, and “busted his head with a pipe.” (State’s Exhibit 1). She
further elaborated that her fiancé was bleeding badly, with blood streaming down
his face. Lisa explained that she did not know the man, but was able to give the
dispatcher a physical description of him, including what he was wearing. She also
informed the dispatcher that she obtained a description of the suspect’s vehicle and
the license plate number along with the weapon used to assault her fiancé.
{¶3} Officers Brent Riley and Jacob DeMonte responded to the call and
identified the victim as Francis Shawn Brickner (“Shawn”). Officer Riley
observed Shawn to be suffering from a head wound, which was producing a large
2 Case No. 13-13-05
amount of blood. Officer Riley took photographs of Shawn’s injuries prior to
Shawn being transported to the hospital. He also located the weapon used to
assault Shawn and identified it as a torque wrench. The torque wrench was
covered with blood and hair. Shawn gave a description of the assailant and his
vehicle consistent with the one given by Lisa to the dispatcher. Based on this
information, Officer Riley was able to identify the defendant, Nye, as a possible
suspect. Shawn and his friend John Robertson (“John”), who was also at the
house that night, both identified Nye in a photo line-up.
{¶4} Officers Riley and DeMonte learned from their investigation at the
scene that a woman named Randi Roush (“Randi”) was with Nye that night.
Specifically, the officers were told that when Nye confronted Shawn at his back
door, he demanded to speak to a woman named Randi or Mandy. Officer Riley,
along with Officer Jacob DeMonte, located Randi and interviewed her. Randi
took Officer Riley back to the scene and explained that Nye drove her to the
location and gave her $450.00 to purchase some Marijuana. The officers learned
that there are two residences on the property, the one where Lisa and Shawn lived,
and a “rear” residence behind their house. Randi informed the officers that she
was in the rear residence that night. Randi also explained that, due to
complications with the drug transaction, she still had Nye’s $450.00 in her
possession, which the officers confiscated.
3 Case No. 13-13-05
{¶5} Law enforcement was unable to immediately locate Nye. However,
Officer Joseph O’Connor was able to locate Nye’s vehicle and had it towed to the
police department garage. Officer O’Connor observed blood stains on the driver
seat and passenger seat. He also located a small tool box in the center passenger
seat section of the vehicle. Photographs taken from inside the vehicle also showed
blood on the roof and visors above the driver seat and passenger seat, blood on the
steering wheel and steering column, blood on the floor throughout the front
compartment, and blood on the radio and temperature controls.
{¶6} Several days after the incident, Nye turned himself into law
enforcement. After further investigation, Nye was indicted on one count of
trespass in a habitation when a person is present or likely to be present, and one
count of felonious assault with a deadly weapon. Nye pleaded not guilty to the
charges. The case proceeded to a jury trial, where several witnesses testified. The
following is a summary of the testimony presented at trial, which further
elaborates on the events that transpired that night.
{¶7} The victim, Shawn Brickner, testified for the prosecution.
Specifically, he testified that on the night of March 2, 2012, he was playing pool in
his basement with Lisa and John, when he heard a very loud pounding on the door.
Shawn ran upstairs to see who was at the door and encountered Nye, a man whom
he had never seen before. Shawn immediately noticed that Nye was in a panic.
4 Case No. 13-13-05
Shawn cracked open the storm door to talk to Nye and then Nye attempted to step
into Shawn’s home, yelling a woman’s name and demanding his money.
{¶8} Shawn reacted by shoving Nye back out the door, but Nye was
persistent in trying to enter the home. Shawn told Nye that he had no idea who
this woman was and told him to leave, but Nye was adamant about getting into the
house. Shawn stated that he then grabbed Nye by the arm and shirt collar, and
escorted him to his vehicle, which was parked in the alley behind the property
approximately fifteen yards from the home. Shawn claimed he did not punch or
hit Nye as they walked to the back of the property. Shawn described Nye as
continuously “rubbernecking” over his shoulder and trying to turn around to go
back to the residence, convinced that the woman he was looking for and his
money were in Shawn’s home. Shawn explained that he felt it was necessary to
escort Nye to his vehicle, because he believed that if he let Nye go, Nye would
simply attempt to run back to his door.
{¶9} When they reached Nye’s vehicle, Shawn opened the door and
pushed Nye into the driver seat. At this point, Shawn released his grip on Nye
believing that Nye would start his vehicle and leave the property. However, as
Shawn began to close the door, Nye pushed the door open and lunged at him, still
convinced that he needed to get inside Shawn’s home. Shawn was able to push
Nye back into the seat and tried to control his movements. Shawn stated that he
5 Case No. 13-13-05
then heard John’s voice yelling “Shawn! Shawn! I’m here! Let him go.” Shawn
now believed that if he let go of Nye, Nye would leave the property. However,
Shawn noticed Nye abruptly sit back into his seat and move his hand down to grab
something shiny. Shawn then observed a long metal object emerge from the car,
which Nye used to hit him on the bridge of the nose.
{¶10} Shawn explained that when he was first hit with the torque wrench
he was standing outside Nye’s vehicle, thinking that Nye was going to close the
door and leave. Being afraid of getting hit again, Shawn attempted to grab the
torque wrench from Nye while Nye repeatedly struck him in the head with the
wrench. Much of the subsequent struggle involving the torque wrench occurred
inside Nye’s vehicle. Eventually, Shawn was able to get the wrench away from
Nye and threw it into the yard. Nye then started his vehicle and screeched the tires
as he fled the scene. Shawn stated that multiple staples were put into his head as a
result of the injuries he sustained from the altercation.
{¶11} On cross-examination, Shawn explained that there is a second
residence on the property that looks like a garage, where two younger adults lived
at the time. However, other than the occasional “hello,” Shawn was unacquainted
with the residents.
{¶12} John also testified for the prosecution and recalled what he observed
that night. John stated that he was in the basement playing pool with Lisa and
6 Case No. 13-13-05
Shawn when they heard the screen door make a loud noise as if the wind had
blown it open. Shawn went upstairs to investigate. John heard some commotion
and then Lisa came down to the basement and stated that someone was trying to
get into the back door. John heard Shawn say “Get out of the house. Get off the
property.” (Tr. at 166).
{¶13} John went upstairs to see what was happening. When he got to the
back door, John observed Shawn walking down the sidewalk with Nye, telling
Nye to get off the property. John stated that Shawn was not pushing or hitting
Nye as he escorted Nye to his vehicle. Shortly after Nye reached his vehicle, John
recalled Nye stating to Shawn, “I got something for you, mother fucker” and then
Nye pulled out a metal bar and started swinging. (Id.). John explained that after
Nye struck Shawn with the weapon a few times, John tried to grab the wrench
from Nye but was unsuccessful. John recalled that Nye had Shawn in a headlock
inside the van while he was hitting Shawn with the wrench. John then ran around
to the passenger side of the vehicle and took Nye’s keys. He explained he told
Nye that he would not give him the keys back until Nye dropped the wrench. Nye
then dropped the wrench and John dropped the keys on the floor board. John
stated that Nye then let Shawn go, Shawn exited the van, and Nye picked up the
keys and fled the scene. John stated that during the incident he also heard Nye
calling out a woman’s name, Randi or Brandie.
7 Case No. 13-13-05
{¶14} Lisa also provided testimony for the prosecution. On the night in
question, Lisa stated she was in the basement of her home with Shawn and John
when they heard a loud pounding at the door. Lisa was standing at the bottom of
the stairs when she saw Shawn open the door. Lisa climbed up a few steps to get a
closer view and saw Nye take a step into the house. Lisa described Nye as
“furious” and remembered him saying “she’s in your house. I know she’s in your
house. She has my money.” (Tr. at 186). Lisa stated that Nye was in Shawn’s
face repeating himself about the woman and his money and was persistent about
trying to get into the house to look for the woman. She recalled Shawn being
shocked and scared by the situation. Lisa then witnessed Shawn push Nye back
across the breezeway.
{¶15} Lisa observed Shawn escort Nye to his vehicle. Once they reached
the vehicle, Lisa witnessed an altercation occur between Shawn and Nye in which
they appeared to be wrestling each other and Shawn’s arms were up as if he was
blocking something. When the struggle ended, Shawn emerged with his face
covered in blood. Lisa called the police and Nye left the scene in his vehicle. Lisa
recalled that after Nye left, a woman named Randi or Brandi appeared. Lisa had
never seen this woman before. Lisa stated that she and Shawn then returned to
their home to wait for the ambulance to arrive.
8 Case No. 13-13-05
{¶16} Randi Roush also testified for the prosecution. She testified that
Nye drove her to 205 Elm Avenue in Tiffin to purchase some Marijuana from
some people she knew who lived in the rear residence on the property. Nye
remained in the car while she completed the transaction. Randi returned to the
vehicle with the drugs. However, Nye did not approve of the quality of the
Marijuana and told her to get his money back. Randi went back into the rear
residence to get Nye’s money back and engaged in a conversation with the
residents. During this time, she received two phone calls from Nye. The first call
she missed, but the second call she answered and Nye indicated that he wanted to
leave. Randi stated she then left the rear residence and walked toward Nye’s
vehicle. There, she saw two people, a man and a woman, standing by the vehicle.
She approached the vehicle and opened the passenger side door. There, she
observed blood inside the vehicle and saw Shawn holding Nye’s head between the
driver seat and passenger seat, trying to calm Nye down. Randi testified that she
heard Lisa call the police and then John told her to leave because she was not
involved in the altercation.
{¶17} Nye testified in his defense. He stated that he felt Randi was gone “a
good ten or fifteen minutes” when she went back into the house for a second time
to get his money. (Tr. at 306). He testified that he was worried about Randi so he
decided to go to the house to get her. He knocked on the door and Shawn
9 Case No. 13-13-05
answered. Nye stated that Shawn was immediately confrontational with him. Nye
denied stepping into the house. He claimed that he turned around to leave after
Shawn told him he did not know Randi. Nye stated that Shawn then proceeded to
shove him from behind all the way to his vehicle.
{¶18} Nye testified that once they reached his vehicle, Shawn told him that
he needed to leave. Nye responded that he did not intend to leave the property
because he was going to wait for Randi. Nye claimed Shawn shoved him again.
Nye stated that he grabbed the wrench and warned Shawn that if he touched him
again, he was going to hit Shawn with the wrench. Nye admitted on the stand that
he kept the wrench in his vehicle as a weapon in case someone attacked him. Nye
claimed Shawn then tackled him into the vehicle and he swung the wrench at
Shawn, but missed. Notably, the prosecution presented the testimony of a law
enforcement officer who indicated that Nye stated in an interview that he first
swung at Shawn when Shawn was standing outside the vehicle. Nye further
testified he was on his back in the vehicle as Shawn was punching him. Nye then
started hitting Shawn with the wrench. Nye recalled Shawn telling him that he
was not going to let go of him until Nye released the wrench. Nye remembered
seeing Randi while Shawn was on top of him. He also recalled that at one point
John had grabbed ahold of his keys and told him to drop the wrench if he wanted
10 Case No. 13-13-05
his keys back. Once Nye dropped the wrench, John gave him his keys and Nye
left the scene.
{¶19} The jury deliberated after hearing the evidence. The jury was
instructed on the affirmative defense of self-defense—specifically pertaining to
Nye’s version of the events. The jury was also instructed that Nye had no duty to
retreat once inside his vehicle. However, the trial court did not instruct the jury on
the presumption of self-defense contained in R.C. 2901.05(B)(1), Ohio’s codified
version of the “Castle Doctrine,” which would have required the prosecution to
demonstrate by a preponderance of the evidence that Nye did not act in self-
defense.
{¶20} The jury subsequently returned verdicts of guilty on both charges,
finding that Nye did not prove by a preponderance of the evidence that he acted in
self-defense that night.
{¶21} The trial court sentenced Nye to serve twelve months in prison for
his conviction on count one, trespass in a habitation, and three years in prison for
his conviction on count two, felonious assault. The trial court ordered the
sentences to run concurrently for a total stated prison term of three years.
{¶22} Nye now appeals asserting, the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE THE JURY WITH A PROPER INSTRUCTION IN
11 Case No. 13-13-05
ACCORDANCE WITH R.C. 2901.05(B)(1) DENYING THE DEFENDANT-APPELLANT DUE PROCESS OF LAW PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. II
THE CONVICTION OF DEFENDANT-APPELLANT BY THE JURY SHOULD BE REVERSED BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN FINDING THE DEFENDANT-APPELLANT GUILTY OF THE CRIME OF FELONIOUS ASSAULT (COUNT TWO OF THE INDICTMENT), IN VIOLATION OF R.C. § 2903.11(A)(2), (D)(1)(A).
First Assignment of Error
{¶23} In his first assignment of error, Nye contends that the trial court
failed to properly instruct the jury on self-defense. Specifically, Nye argues that
the trial court erred when it failed to give an instruction on the rebuttable
presumption of self-defense contained in R.C. 2901.05(B)(1).
{¶24} At the outset, we note that there is some discrepancy on appeal
regarding the appropriate standard of review for this issue. The prosecution
argues that we should review this assignment of error under the plain error
standard because Nye did not object at trial to the trial court’s failure to give a
specific instruction on the presumption of self-defense. See Crim.R. 30(A)(stating
that “[o]n appeal, a party may not assign as error the giving or failure to give any
instructions unless the party objects before the jury retires to consider its verdict *
12 Case No. 13-13-05
* *”). However, Nye maintains that he preserved this issue for appeal because
prior to trial he submitted proposed jury instructions which included the statutory
language regarding the presumption of self-defense stated in R.C. 2901.05(B)(1).
Therefore, Nye argues that this Court should review this issue for an abuse of
discretion. See State v. Wolons, 44 Ohio St.3d 64, 68 (1989).
{¶25} Notably, in construing Crim.R. 30(A), the Supreme Court of Ohio
has held that “[a] party does not waive his objections to the court’s charge by
failing to formally object thereto (1) where the record affirmatively shows that a
trial court has been fully apprised of the correct law governing a material issue in
dispute, and (2) the requesting party has been unsuccessful in obtaining the
inclusion of that law in the trial court’s charge to the jury.” State v. Wolons, 44
Ohio St.3d at paragraph one of the syllabus (1989); see, also, State v. Fine, 2d
Dist. Miami No. 09CA00032, 2010-Ohio-2637, ¶ 21 (finding that submitting
proposed jury instructions preserved the issue for appeal and stating that the
purpose of the Crim.R. 30(A) requirement that the party object to a jury
instruction before the jury retires to consider its verdict is to give the trial court an
opportunity to correct an erroneous instruction before the jury begins its
deliberations on the instructions the court gave).
{¶26} We concur with the foregoing authority and conclude that in this
instance Nye preserved the issue for appeal when he submitted proposed jury
13 Case No. 13-13-05
instructions to the trial court which included the presumption of self-defense
contained in R.C. 2901.05(B)(1). However, even if we were to conclude that Nye
failed to preserve this issue for appeal, our analysis of this case would be the same.
{¶27} The trial court provided the following instruction to the jury
regarding the affirmative defense of self-defense.
SELF DEFENSE
The defendant claims to have acted in self-defense. To establish a claim of self-defense, the defendant must prove by the greater weight of the evidence that (A)—he was not at fault in creating the situation giving rise to felonious assault; and (B)—he had reasonable grounds to believe and an honest belief, even if mistaken, that he was in imminent danger of death or great bodily harm, and that his only reasonable means of retreat or escape from such danger was by the use of deadly force; and (C)—he had not violated any duty to retreat or escape to avoid the danger.
*** DEFENSE OF VEHICLE
A person who lawfully is an occupant of his vehicle has no duty to retreat before using force in self-defense.
(Jury Instructions pp. 8-9).
{¶28} In rendering its verdict, the jury specifically found that Nye failed to
prove by a preponderance of the evidence that his conduct that night met the
elements of self-defense. Nevertheless, Nye maintains that the outcome of the
14 Case No. 13-13-05
trial would have been different if the jury was instructed on the presumption of
self-defense contained in R.C. 2901.05(B)(1), which states in pertinent part:
[A] person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
Nye argues that the presumption of self-defense stated above is applicable to his
case because the felonious assault took place inside his vehicle. Nye further
argues that Shawn was without privilege to enter his vehicle. In making this
argument, it is apparent that Nye misconstrues the circumstances entitling a
defendant to the presumption of self-defense.
{¶29} Specifically, R.C. 2901.05(B)(1) clearly contemplates a scenario of a
home/car invasion—i.e., the person against whom the defensive force is used is in
the process of unlawfully and without privilege entering (or has entered) the
defendant’s residence or vehicle. The evidence in this case does not establish that
Shawn was in the process of invading Nye’s vehicle when Nye assaulted him with
the torque wrench. Nye never testified that he struck Shawn with the wrench
because Shawn was attempting to enter his vehicle. Rather, Nye claimed his
reason for hitting Shawn with the wrench was because he wanted Shawn to leave
him alone. Nye testified that immediately prior to hitting Shawn with the wrench
15 Case No. 13-13-05
he told Shawn that he was not leaving the property without Randi. The testimony
from multiple witnesses, including Nye’s admission to law enforcement,
demonstrated that Nye first struck Shawn with the wrench while Shawn was
standing outside the vehicle. This is also consistent with Shawn’s testimony that
Nye did not use defensive force to deter him from entering the vehicle. On the
contrary, the evidence demonstrates that Nye’s use of force was inflicted with the
purpose to remove Shawn as an obstacle in preventing him from gaining access to
Shawn’s home. Thus, the facts of this case fail to establish that the home/vehicle
invasion scenario described in R.C. 2901.05(B)(1) occurred for the presumption of
self-defense to apply.
{¶30} Even assuming arguendo that the facts of this case implicated the
presumption of self-defense contained in R.C. 2901.05(B)(1) and that the burden
had been shifted to the prosecution to prove Nye did not act in self-defense, the
record shows that the prosecution presented evidence to adequately rebut the
presumption by a preponderance of the evidence. See R.C. 2901.05(B)(3). Ohio
appellate courts, including this one, have stated that the presumption of self-
defense may be rebutted by evidence showing the defendant’s conduct in the
affray did not meet the elements of self-defense. See e.g., State v. Hadley, 3d Dist.
Marion No. 9–11–30, 2013-Ohio-1942, ¶ 61; State v. Petrone, 5th Dist. Stark No.
2011CA00067, 2012–Ohio–911, ¶ 73.
16 Case No. 13-13-05
{¶31} Referring back to the elements of self-defense as properly given in
the trial court’s jury instructions, the prosecution’s evidence demonstrated that
Nye’s conduct did not meet the elements of self-defense. First, the prosecution
presented evidence that Nye was at fault in creating the situation giving rise to the
felonious assault. Multiple witnesses testified to Nye’s persistence in getting into
Shawn and Lisa’s home, which sparked the incident leading to the altercation at
Nye’s vehicle. Shawn testified he believed that if he had not escorted Nye off the
property and then physically restrained Nye from leaving his vehicle, Nye would
have again attempted to enter his home.
{¶32} Second, the prosecution also demonstrated that Nye did not have
reasonable grounds to believe he was in imminent danger of death or great bodily
harm and that his only reasonable response was the use of deadly force. Nye
admitted that Shawn did not have a weapon. He also testified that Shawn told him
that he would let him go if Nye dropped the wrench. However, it was not until
John appeared on the scene and took Nye’s keys that Nye finally dropped the
wrench and the struggle ended. This is consistent with Shawn’s testimony that he
did not engage in the physical struggle with Nye until after Nye struck him with
the wrench while he was standing outside the vehicle. It was at that point the
struggle extended into Nye’s vehicle as Shawn, who feared for his life, attempted
to wrestle the wrench away from Nye.
17 Case No. 13-13-05
{¶33} Given the evidence presented at trial, we believe that the outcome
would not have been different if the burden was shifted to the prosecution to prove
by a preponderance of the evidence that Nye’s conduct did not meet the elements
of self-defense. Therefore, based on the facts and circumstances of this case, we
conclude that the trial court did not err in declining to give an instruction on the
presumption of self-defense to the jury. Accordingly, Nye’s first assignment of
error is overruled.
Second Assignment of Error
{¶34} In his second assignment of error, Nye argues that the jury verdict
convicting him of felonious assault was against the manifest weight of the
evidence.
{¶35} In determining whether a conviction is against the manifest weight
of the evidence, a reviewing court must examine the entire record, “ ‘[weigh] the
evidence and all reasonable inferences, consider the credibility of witnesses and
[determine] whether in resolving conflicts in the evidence, the [trier of fact]
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered .’ ” State v. Thompkins, 78
Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). A reviewing court must, however, allow the trier of fact
18 Case No. 13-13-05
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶36} Nye was convicted of felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree. Specifically, R.C. 2903.11(A)(2)
states in pertinent part:
(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.
{¶37} On appeal, Nye contends that the jury verdict was against the
manifest weight of the evidence because he acted in self-defense when he
repeatedly struck Shawn in the head with the torque wrench.
{¶38} At trial, Nye testified in his defense and presented his version of the
events to support his claim of self-defense. As the trier of fact, the jury was
charged with determining the credibility of the witnesses and resolving any
conflicting testimony. In the end, the jury chose to believe the prosecution’s
witnesses over Nye and specifically found that Nye failed to demonstrate by a
preponderance of the evidence that he acted in self-defense when he assaulted
Shawn with the torque wrench. Moreover, as previously discussed, Nye has also
failed to demonstrate that the outcome of the trial would have been different had
the jury been instructed to presume he acted in self-defense because the
19 Case No. 13-13-05
prosecution presented ample evidence to rebut the presumption by a
preponderance of the evidence. Finally, we also note that the prosecution
presented evidence more than adequate to prove the elements of felonious assault
beyond a reasonable doubt. Accordingly, we cannot find that the jury clearly lost
its way such that a new trial is warranted. Nye’s second assignment of error is
overruled.
{¶39} Based on the foregoing, the judgment and sentence of the Seneca
County Court of Common Pleas is affirmed.
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr