[Cite as State v. Rhymer, 2021-Ohio-2908.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200164 TRIAL NO. B-1803761 Plaintiff-Appellee, :
vs. : O P I N I O N. JAMES RHYMER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 25, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Law Office of Angela Glaser and Angela Glaser, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant James Rhymer was convicted of voluntary
manslaughter and felonious assault. He has appealed, arguing in four assignments
of error that (1) the trial court failed to properly instruct the jury on the elements of
self-defense, (2) the trial court erred when it instructed the jury on the lesser-degree
offense of voluntary manslaughter, (3) he was denied the effective assistance of
counsel, and (4) the verdict was against the manifest weight of the evidence. We
overrule all assignments of error and affirm the judgment of the trial court.
Factual Background
{¶2} Marilyn Kancy testified that she and Rhymer have a son (“J”) together
and share custody. On June 29, 2018, Rhymer and Kancy met at a subdivision to
exchange custody of J. They parked their cars on the side of the road close to the
subdivision’s entrance. At the time Kancy was dating the victim, Thomas Landacre.
{¶3} Kancy testified that Rhymer had just buckled J into his car seat when
Landacre, who had been working near the back of the subdivision, drove up and
started yelling at Rhymer. Kancy ran to get in between the two men. She testified
that Rhymer retrieved a handgun from his car. Landacre “got away” from Kancy and
approached Rhymer. She heard a gunshot and turned to see Landacre collapse to the
ground with blood coming out of his neck. Rhymer got in his car and drove away.
Kancy testified that Landacre did not have a weapon in his possession and the two
men never touched each other during the confrontation.
{¶4} Detective Kevin Illing interviewed Rhymer shortly after the shooting.
A video recording of the interview was played at trial. Rhymer told Illing that
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Landacre was not armed, and, although Landacre lunged at him, he never touched
him.
{¶5} The state also played surveillance video that was recovered from a
nearby pool clubhouse. The video confirms that Rhymer put J in the back seat of his
car and was standing right outside the driver’s side door when Landacre pulled up.
The confrontation ensued, and approximately 45 seconds later Landacre fell to the
ground.
{¶6} Rhymer testified that there was tension between him and Landacre
and identified several quarrels that occurred prior to the shooting. He testified that
Landacre had previously threatened to “stomp” his head into the ground in front of
J. On another occasion, when he asked Kancy if she needed a place to stay, Landacre
texted him a picture of his penis and threatened him. He testified that he called
Landacre a child molester, which he knew was false, in order to get him to stay away
from J. A month prior to the shooting, Landacre “busted” the windows out of Kancy’s
car. Rhymer also testified that Landacre had tried to kill J, but he did not explain
how or why, and during his interview with Detective Illing, he said nothing about
Landacre attempting to kill his son.
{¶7} Rhymer testified that on the day in question, Landacre pulled up
approximately ten feet away from his car, slammed on his brakes, flung his door
open, and jumped out. Landacre yelled, “There you are, you are hiding from me, I
found you, little pussy bitch.” Rhymer testified that Landacre was “hissing and
laughing” and yelling at the top of his lungs, “come on pussy bitch, let’s do this right
now, let’s do this motherfucker.” He described Landacre as looking like “he was on
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drugs or something, very angry, psychotic.”1 Rhymer testified that he noticed
Landacre’s swastika tattoo, which he described as “disturbing.”
{¶8} Rhymer testified that he feared for his life and his son’s life. Although
he testified at one point that he did not feel as though he could safely retreat because
he was afraid to turn his back on Landacre, he also admitted that he could have
gotten in his car and driven away. Instead, he grabbed his handgun from his car
console and turned to confront Landacre. He testified that he told Landacre to stop
and asked him not to hit him or break his car windows with his son in the car. He
testified, “I was pushed. Whether I was punched or not, I don’t know.” He did not see
a weapon in Landacre’s possession, but he claimed that Landacre’s tattooed hands
looked like weapons.
{¶9} He testified that Kancy got in between them, but Landacre got around
her and walked up to him, pushed him, and tried to grab the firearm out of his hand.
Rhymer then shot Landacre from “point blank range.” Rhymer got in his car and
drove around the corner to the pool clubhouse, where he called 911 and waited for
police to arrive.
{¶10} Rhymer admitted that his recounting of the events at trial did not line
up with his statements to detectives. He acknowledged that he told detectives that
Landacre never touched him, and he never told them that Landacre had lunged at
him, that he thought Landacre’s hands were weapons, or that Landacre tried to grab
the firearm out of his hand. He claimed that he was in shock at the time of the
interview and did not remember all of the details of the incident until two or three
days later.
1 Landacre did have multiple drugs in his system—cannabinoids, cocaine metabolites, and fentanyl.
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{¶11} Rhymer was acquitted of murder, but convicted of voluntary
manslaughter and felonious assault.
First Assignment of Error
{¶12} In his first assignment of error, Rhymer argues that the trial court
failed to properly instruct the jury on the elements of self-defense.
{¶13} The trial court instructed the jury:
Self-defense. Self-defense means that the defendant was not at fault in
creating the situation giving rise to the shooting that occurred on June
29, 2018, and that the defendant 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 the defendant did not violate any duty to
retreat to avoid danger. And the defendant used reasonable force.
To prove beyond a reasonable doubt that self-defense does not apply, the
State need only disprove one of the four elements that I just mentioned.
Excessive force. A person is allowed to use force that is reasonably
necessary under the circumstances to protect himself from apparent
danger. Excessive force occurs if a defendant used more force than
reasonably necessary, and the force used was greatly disproportionate to
the apparent danger.
(Emphasis added.)
{¶14} Rhymer’s issue lies with the portion of the court’s instruction that
states, “And the defendant used reasonable force.” He argues that it is duplicative of
the excessive-force instruction and added a fourth element to his self-defense claim
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where, by law, there are only three elements. Rhymer contends that this provided
the jury with an improper basis upon which to reject his self-defense claim.
{¶15} Rhymer did not object to the jury instruction at trial, so we review for
plain error. State v. Love, 2017-Ohio-8960, 101 N.E.3d 623, ¶ 20 (1st Dist.). “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.” Id.
{¶16} The Ohio Jury Instructions (“OJI”) state:
1. GENERAL. The defendant is allowed to use deadly force in self-
defense. Evidence was presented that tends to support a finding that the
defendant used deadly force in self-defense. In order to prove that the
defendant did not act in self-defense, the state must prove beyond a
reasonable doubt at least one of the following:
(A) the defendant was at fault in creating the situation giving rise to
(describe the event in which the use of deadly force occurred); or
(B) the defendant did not have reasonable grounds to believe and an
honest belief, even if mistaken, that he/she was in (imminent)
(immediate) danger of death or great bodily harm; or
(C) the defendant violated a duty to (retreat) (escape) to avoid the
danger; or
(D) the defendant did not use reasonable force.
Ohio Jury Instructions, CR Section 421.21 (Eff. Mar. 28, 2019) (Rev. Nov. 16, 2019).
8. EXCESSIVE FORCE (ADDITIONAL). A person is allowed to use force
that is reasonably necessary under the circumstances to protect himself
from an apparent danger. For you to find the defendant guilty, the state
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must prove beyond a reasonable doubt that the defendant used more
force than reasonably necessary and that the force used was greatly
disproportionate to the apparent danger.
Id.
{¶17} OJI are nonbinding guidance that have no force or effect as a rule of
law. State v. Mincey, 2018-Ohio-662, 107 N.E.3d 735, ¶ 30 (1st Dist.). However, we
find that the OJI instructions relied on by the trial court in this case are in
conformity with Ohio law.
{¶18} At the time of Rhymer’s trial, the elements of self-defense involving the
use of deadly force were:
(1) the defendant was not at fault in creating the situation giving rise to
the affray; (2) the defendant 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 a danger was in the use of such force, and (3) the
defendant did not violate any duty to retreat or avoid the danger.
(Citations omitted.) State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-
4976, ¶ 48. “The elements of self-defense are cumulative, so a defendant’s self-
defense claim fails if any one of the elements is not present.” Id.
{¶19} “Often missing from quotations of the self-defense formulation is the
requirement that the force used be reasonable.” State v. Gray, 2d Dist. Montgomery
No. 26473, 2016-Ohio-5869, ¶ 8. It is well-established that the defendant may only
use “that force which is reasonably necessary to repel the attack.” State v. Williford,
49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990); see State v. Eichelbrenner, 1st Dist.
Hamilton No. C-110431, 2013-Ohio-1194, ¶ 21 (where this court, while discussing the
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second element of self-defense, stated that “the excessive use of force will render the
claim of self-defense invalid”).
{¶20} Rhymer acknowledges that the force used must be reasonable, but
argues that the trial court erred by instructing the jury that reasonable force was a
fourth element of self-defense, as opposed to part of the second element. Rhymer
makes a distinction without a difference. If a jury finds that a defendant used
unreasonable force, then it cannot find the second element in favor of the defendant.
Therefore, the outcome is the same as if the jury considered reasonable force as a
fourth element.
{¶21} The trial court’s instructions complied with Ohio law regarding the
elements of self-defense and the requirement that the use of deadly force in self-
defense be reasonable. The reasonable-force element was not duplicative of the
excessive-force instruction and the excessive-force instruction merely defined
“reasonable force.” The first assignment of error is overruled.
Second Assignment of Error
{¶22} In his second assignment of error, Rhymer contends that the trial
court erred when it instructed the jury on the lesser-degree offense of voluntary
manslaughter because there was insufficient evidence that he acted in a sudden
passion or fit of rage.
{¶23} R.C. 2903.03(A) delineates the elements of voluntary manslaughter.
“No person, while under the influence of sudden passion or in a sudden fit of rage,
either of which is brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the person into using deadly force, shall knowingly
cause the death of another.” R.C. 2903.03(A).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Although sometimes referred to as a lesser-included offense of
murder, voluntary manslaughter is a lesser-degree offense of murder because the
elements of voluntary manslaughter are contained in the offense of murder, except
for the mitigating elements. State v. Webster, 1st Dist. Hamilton No. C-130700,
2014-Ohio-5647, ¶ 15. Acting under a sudden passion or fit of rage is not an element
of voluntary manslaughter that the state must prove; it is a mitigating circumstance
that a defendant must prove by a preponderance of the evidence if he is also on trial
for murder or aggravated murder. State v. Rhodes, 63 Ohio St.3d 613, 617, 590
N.E.2d 261 (1992).2
{¶25} “[A] jury instruction must be given on a lesser included (or inferior-
degree) offense when sufficient evidence is presented which would allow a jury to
reasonably reject the greater offense and find the defendant guilty on a lesser
included (or inferior-degree) offense.” State v. Shane, 63 Ohio St.3d 630, 632-633,
590 N.E.2d 272 (1992). In determining whether to give a voluntary-manslaughter
instruction, the trial court must view the evidence in the light most favorable to the
defendant. State v. Levett, 1st Dist. Hamilton No. C-040537, 2006-Ohio-2222, ¶ 25.
{¶26} The Ohio Supreme Court has explained:
An inquiry into the mitigating circumstances of provocation must be
broken down into both objective and subjective components. In
determining whether the provocation is reasonably sufficient to bring on
2 “If a defendant is not charged with murder or aggravated murder, but rather is on trial for voluntary manslaughter, neither party is required to establish either of the mitigating circumstances. Rather, the court presumes (to the benefit of the defendant) the existence of one or both of the mitigating circumstances as a result of the prosecutor’s decision to try the defendant on the charge of voluntary manslaughter rather than murder. In that situation, the prosecution needs to prove, beyond a reasonable doubt, only that the defendant knowingly caused the death of another, and it is not a defense to voluntary manslaughter that neither party is able to demonstrate the existence of a mitigating circumstance.” Rhodes at 618.
9 OHIO FIRST DISTRICT COURT OF APPEALS
sudden passion or a sudden fit of rage, an objective standard must be
applied. Then, if that standard is met, the inquiry shifts to the subjective
component of whether this actor, in this particular case, actually was
under the influence of sudden passion or in a sudden fit of rage. It is only
at that point that the “* * * emotional and mental state of the defendant
and the conditions and circumstances that surrounded him at the time * *
*” must be considered. If insufficient evidence of provocation is
presented, so that no reasonable jury would decide that an actor was
reasonably provoked by the victim, the trial judge must, as a matter of
law, refuse to give a voluntary manslaughter instruction. In that event,
the objective portion of the consideration is not met, and no subsequent
inquiry into the subjective portion, when the defendant’s own situation
would be at issue, should be conducted.
Shane, 63 Ohio St.3d at 634, 590 N.E.2d 272, quoting State v. Deem, 40 Ohio St.3d
205, 533 N.E.2d 294 (1988), paragraph five of the syllabus.
{¶27} Rhymer contends that the evidence only supported his claim of self-
defense and not sudden passion or fit of rage. He argues that he wished to present an
“all or nothing” defense, even though his counsel never made such an argument to
the trial court.
{¶28} Defense counsel did not object to the voluntary-manslaughter
instruction. During closing argument, in addition to his argument of complete
innocence due to self-defense, counsel argued that if Rhymer was guilty of anything,
it was voluntary manslaughter. Therefore, we must review for plain error. State v.
Clayton, 62 Ohio St.2d 45, 46, 402 N.E.2d 1189 (1980).
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} In State v. Wine, the Ohio Supreme Court addressed the issue of
whether a defendant who presents an “all or nothing” defense has the right to
prevent the trial court from instructing the jury on a lesser-included offense. State v.
Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 1. The court held that
it is the quality of the evidence, not the strategy of the defense, that determines
whether a lesser-included-offense instruction should be given to the jury. Id. at ¶ 26.
“Regardless of who reaps the benefit of the rule, a charge on a lesser included offense
is required when the facts warrant it and improper when the facts do not warrant it.”
Id. at ¶ 20.
{¶30} We turn first to the objective portion of the consideration of whether a
voluntary-manslaughter instruction was warranted and examine whether there was
sufficient evidence presented of provocation by the victim.
{¶31} “For provocation to be reasonably sufficient, it must be sufficient to
arouse the passions of an ordinary person beyond the power of his or her control.”
Shane, 63 Ohio St.3d at 635, 590 N.E.2d 272. The Shane court held, “Assault and
battery” and “mutual combat” are two of the “classic voluntary manslaughter
situations.” Id.
Words alone will not constitute reasonably sufficient provocation to incite
the use of deadly force in most situations. Rather, in each case, the trial
judge must determine whether evidence of reasonably sufficient
provocation occasioned by the victim has been presented to warrant a
voluntary manslaughter instruction. The trial judge is required to decide
this issue as a matter of law, in view of the specific facts of the individual
case.
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(Emphasis added.) Id. at 637.
{¶32} The evidence showed that Landacre was dating the mother of
Rhymer’s child and was a father figure to that child. Per Rhymer’s testimony,
Landacre had previously threatened him with violence, had texted him a picture of
his penis, had broken Kancy’s car windows, and had tried to kill J. Landacre showed
up to the custody exchange uninvited, extremely agitated, and under the influence of
drugs. Rhymer testified that Landacre challenged him to a fight in front of J, yelling,
“There you are you, you are hiding from me, I found you, little pussy bitch, come on
pussy bitch, let’s do this right now, let’s do this motherfucker.” Furthermore, Rhymer
testified that Landacre pushed him and tried to grab the firearm from him. Under
the specific facts of this case, we find there was sufficient evidence of provocation.
{¶33} Turning next to the subjective portion of the inquiry, we must
determine whether there was sufficient evidence that Rhymer actually was under the
influence of sudden passion or in a fit of rage. We must examine Rhymer’s emotional
and mental state and the conditions and circumstances that surrounded him at the
time.
{¶34} Rhymer did testify repeatedly in support of his self-defense claim that
he was scared for his life and J’s life. And it is well-established that fear alone is
insufficient to show that a defendant acted under a sudden passion or fit of rage so as
to warrant the voluntary-manslaughter instruction. Levett, 1st Dist. Hamilton No. C-
040537, 2006-Ohio-2222, at ¶ 29, quoting State v. Perdue, 153 Ohio App.3d 213,
2003-Ohio-3481, 792 N.E.2d 747, ¶ 12 (7th Dist.), and State v. Mack, 82 Ohio St.3d
198, 201, 694 N.E.2d 1328 (1998) (“While self-defense requires a showing of fear,
voluntary manslaughter requires a showing of rage, with emotions of ‘anger, hatred,
12 OHIO FIRST DISTRICT COURT OF APPEALS
jealousy, and/or furious resentment.’ The Ohio Supreme Court has specifically held
that ‘fear alone is insufficient to demonstrate the kind of emotional state necessary to
constitute sudden passion or fit of rage.’ ”).
{¶35} However, when asked if Landacre’s statements made him angry,
Rhymer testified, “It made me upset that he was there,” because he showed up
uninvited and was taunting him in front of his son. He further testified that he could
have gotten into his car and driven away, but instead he chose to reach into the
vehicle and grab his gun. The evidence was also uncontroverted that Landacre was
unarmed. This evidence was sufficient to show that Rhymer was acting under the
influence of sudden passion or in a fit of rage. Compare State v. Richcreek, 3d Dist.
Paulding No. 11-20-03, 2021-Ohio-636, ¶ 35 (finding sufficient evidence that the
defendant acted in a sudden passion or fit of rage based on the defendant’s turbulent
history with the victim and testimony demonstrating that the defendant was
“evidently upset” about the victim’s relationship with the mother of the defendant’s
children); State v. Palmer, 10th Dist. Franklin No. 87AP-1124, 1988 WL 142109, *4
(Dec. 27, 1988) (finding sufficient evidence to warrant a voluntary-manslaughter
instruction where the defendant testified that he was not angry, but he was “upset”
by the victim’s actions); State v. Thomas, 10th Dist. Franklin No. 95APA08-984,
1996 WL 145457, *3 (Mar. 26, 1996) (finding sufficient evidence of “defendant’s
subjective passion or fit of rage” where the defendant testified that he was “upset”
after the victim punched him and took his money and further testified, “I was just
mad that my money got tooken [sic] and I got hit in my nose * * * I wasn’t mad * * *
you can say I was mad, but I wasn’t that mad,” and an eyewitness testified that the
defendant was “visibly upset”); contrast Perdue, 153 Ohio App.3d 213, 2003-Ohio-
13 OHIO FIRST DISTRICT COURT OF APPEALS
3481, 792 N.E.2d 747, at ¶ 1 (“[a]lthough there is evidence of provocation by the
victim, there is no evidence in the record that could support a finding that Perdue
was acting under a sudden passion or fit of rage when he shot and killed Raymond
Ortiz.”). (Emphasis added.)
{¶36} The prosecution also demonstrated to the jury that Rhymer’s interview
with the police was inconsistent with his trial testimony, which lessened his
credibility regarding his self-defense claim.
{¶37} The trial court did not err by instructing the jury on voluntary
manslaughter because there was sufficient evidence that Rhymer acted in a state of
sudden passion or fit of rage. No manifest miscarriage of justice occurred. The
second assignment of error is overruled.
Third Assignment of Error
{¶38} In his third assignment of error, Rhymer argues that he was denied the
effective assistance of counsel. To establish an ineffective-assistance-of-counsel
claim, an appellant must show that (1) counsel’s performance was deficient, and (2)
the deficient performance prejudiced the defense, thereby depriving appellant of a
fair trial. State v. Smith, 1st Dist. Hamilton No. C-180151, 2019-Ohio-5264, ¶ 63,
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
{¶39} First, an appellant must show that counsel’s errors were “so serious
that counsel was not functioning as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687. Debatable trial tactics do not demonstrate deficient
performance and “do not constitute a deprivation of the effective assistance of
counsel.” Smith at ¶ 63, citing Clayton, 62 Ohio St.2d at 49, 402 N.E.2d 1189.
14 OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Rhymer contends that trial counsel was ineffective in three ways.
First, he argues that counsel should have objected to the jury instruction regarding
the use of reasonable force in self-defense. As explained in the first assignment of
error, the jury instruction was a correct statement of law. Counsel was not deficient
for failing to object.
{¶41} Second, Rhymer argues that counsel should have requested a Castle-
Doctrine instruction. The Castle Doctrine provides:
[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.
R.C. 2901.05(B)(2).
{¶42} Rhymer claims that Landacre was in the process of entering his car
and he had the right to defend himself without retreating. His argument is
contradicted by the evidence. The video and testimony clearly demonstrate that
Rhymer was outside of his car when Landacre pulled up. Rhymer reached into his
car to get his firearm, but at no point did Landacre attempt to enter Rhymer’s car,
and the altercation and shooting took place entirely outside of the car. Counsel was
not deficient for failing to request a Castle-Doctrine instruction.
{¶43} Third, Rhymer argues that counsel was deficient for not objecting to
the voluntary-manslaughter instruction and arguing during closing argument that if
15 OHIO FIRST DISTRICT COURT OF APPEALS
Rhymer was guilty of anything, it was voluntary manslaughter. Rhymer claims that
he wanted to present a complete-acquittal defense, as evidenced by his decision to
turn down a plea offer for voluntary manslaughter.
{¶44} There is a significant difference between the decision to reject a plea
deal and the decision to include voluntary manslaughter as an option for the jury to
consider in lieu of murder. Moreover, the jury rejected Rhymer’s self-defense claim
and found him guilty of voluntary manslaughter, which contains the same elements
as murder, except for the mitigating circumstance that he acted under a sudden
passion or fit of rage. Without defense counsel’s embrace of the voluntary-
manslaughter strategy, Rhymer would have been found guilty of murder. The
decision to pursue a voluntary-manslaughter conviction as an alternative to a murder
conviction was clearly trial strategy. See Clayton, 62 Ohio St.2d at 49, 402 N.E.2d
1189; State v. McCray, 2017-Ohio-2996, 91 N.E.3d 288, ¶ 65 (1st Dist.).
{¶45} Finally, according to Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18
N.E.3d 1207, at ¶ 1:
[A] criminal defendant does not have the right to prevent a trial court
from giving lesser-included-offense jury instructions; whether to include
such jury instructions lies within the discretion of the trial court and
depends on whether the evidence presented could reasonably support a
jury finding of guilt on a particular charge.
{¶46} We have already determined that it was not error for the trial judge to
have given a voluntary-manslaughter instruction. The third assignment of error is
overruled.
16 OHIO FIRST DISTRICT COURT OF APPEALS
Fourth Assignment of Error
{¶47} In his fourth assignment of error, Rhymer contends that the verdict
was against the manifest weight of the evidence. Specifically, he argues that the state
did not prove beyond a reasonable doubt that he was not acting in self-defense.
{¶48} In reviewing his claim, we review the record, weigh the evidence and
all reasonable inferences, consider the credibility of the witnesses, and determine
whether the trier of fact, in resolving conflicts in the evidence, “clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed.” State v. Martin 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Reversal of a conviction and a grant of a new trial should only be done in
“exceptional cases in which the evidence weighs heavily against the conviction.” Id.
“The trier of fact is in the best position to judge the credibility of the witnesses and
the weight to be given to the evidence presented.” State v. Carson, 1st Dist.
Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶49} Generally an individual is not reasonable in using deadly force against
an unarmed assailant, especially where there is only one assailant, the confrontation
is not violent, and there are no great size or health discrepancies between the
defendant and assailant. 2 Wayne R. LaFave, Substantive Criminal Law, Section
10.4(b) (3d Ed.1996).
{¶50} In State v. Carmen, 1st Dist. Hamilton No. C-120692, 2013-Ohio-
3325, ¶ 7, the evidence showed that the victim was unarmed and that he “never
actually raised his hand” to the defendant. This court upheld the trial court’s
findings that the defendant used excessive force in shooting the victim “who had
been unarmed and incapable of inflicting death or great bodily harm upon [the
17 OHIO FIRST DISTRICT COURT OF APPEALS
defendant],” and that the defendant had failed to prove that he acted upon a bona
fide belief that he was in imminent danger of death or great bodily harm. Id. at ¶ 15.
{¶51} Rhymer clearly had an opportunity to retreat; he admitted as much in
his testimony and during his interview with detectives. Landacre was unarmed.
Kancy testified, and Rhymer told detectives, that Landacre never touched him. The
jury did not clearly lose its way in finding that the state proved beyond a reasonable
doubt that Rhymer did not act in self-defense.
{¶52} Because Rhymer has failed to show that the jury clearly lost its way in
rejecting his self-defense claim, the fourth assignment of error is overruled.
Conclusion
{¶53} All four assignments of error are overruled. The judgment of the trial
court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.