[Cite as State v. Suarez, 2011-Ohio-1438.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0008
vs. : T.C. CASE NO. 09CRB2004
DAVID M. SUAREZ : (Criminal Appeal from Municipal Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
Betsy A. Deeds, Atty. Reg. No.0076747, Asst. Pros. Attorney, 510 West Main Street, Fairborn, OH 45324 Attorney for Plaintiff-Appellee
Jessica R. Moss, Atty. Reg. No.0085437, P.O. Box 341148, Dayton, OH 45434 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, David M. Suarez, appeals from his conviction
for assault, R.C. 2903.13(A), and the one hundred and eighty-day
jail term and one hundred dollar fine imposed for that first degree
misdemeanor offense. 2
{¶ 2} The events from which Defendant’s conviction arose
occurred on May 27, 2009, at Defendant’s home in Fairborn. A number
of people had gathered there for a party and consumed alcohol.
One of them, Andrew Rowe, became upset when another man
inappropriately touched a female, who was Rowe’s girlfriend. Rowe
yelled at those present, and when he was then made to leave was
assaulted by several of the other men.
{¶ 3} Most of those present, including Defendant, fled after
the assault, which left Rowe bleeding and unconscious on the
basement floor. Police and medics were called, and Rowe was
transported to a hospital. Rowe suffered a concussion, a cut
lip, and significant bruising and swelling to his face. The
injuries required stitches to close wounds to his lip and left
eye.
{¶ 4} Defendant Suarez was charged by a complaint filed in
Fairborn Municipal Court with assault. R.C. 2903.13(A). The
charge was tried to a jury. Defendant and his witnesses testified
that Rowe was very intoxicated and became upset when he witnessed
the event involving his girlfriend. Defendant then asked Rowe
to leave. Rowe went upstairs, briefly, but returned to the
basement and threatened to fight everyone there. Rowe and another
man began to fight, at which time Defendant left his home.
Defendant denied ever hitting or using force against Rowe. 3
{¶ 5} The State’s witnesses testified that Rowe was attacked
and severely beaten by three men, including Defendant Suarez.
Christy Combs testified that Defendant struck Rowe in the face
several times. Sidney Bunnow testified that Defendant hit Rowe
several times. Lauren Smith, a friend of Defendant’s, testified
that Defendant hit Rowe twice.
{¶ 6} The jury found Rowe guilty of assault and he was convicted
and sentenced pursuant to law. Defendant appeals from his
conviction, presenting two assignments of error for our review.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY
ON THE CASTLE DOCTRINE.”
{¶ 8} The trial court must give all instructions that are
relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder. State v. Comen (1990),
50 Ohio St.3d 206. The court must correctly instruct on the
elements of the offense charged and all defenses raised by the
evidence. State v. Williford (1990) 49 Ohio St.3d 247.
{¶ 9} Crim.R. 30 provides that “any party may file written
requests that the court instruct the jury on the law as set forth
in the requests.” If a defendant has properly requested a
particular instruction, in accordance with Crim.R. 30, the court
errs if it fails to include the substance of the written instruction 4
in its charge to the jury. State v. Comen.
{¶ 10} Self-defense is an affirmative defense which, if proved,
relieves a defendant of criminal liability for force the defendant
used. “The burden of going forward with the evidence of an
affirmative defense, and the burden of proof, by a preponderance
of the evidence, for an affirmative defense, is upon the accused.”
R.C. 2901.05(A).
{¶ 11} R.C. 2901.09(B) codifies a form of self-defense known
as the “Castle Doctrine,” and provides:
{¶ 12} “For 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.”
{¶ 13} Following the court’s general instructions to the jury,
and before the jury retired, Defendant requested the court to give
the following additional instruction: “But if you find the
Defendant used only such force as was reasonably necessary to remove
Mr. Rowe from the premises . . ., you must find the Defendant not
guilty . . . , (and in) [m]aking this determination, you may not 5
attribute the force used by others” to the Defendant. (Tr. 253).
When the court asked Defendant’s counsel for the reason for the
request, counsel stated:
{¶ 14} “There was some testimony that he had the authority,
since he was residing there, although he was not on the lease,
and I think it was Lindsey that testified to that, that he had
authority to remove people. He had attempted – he had orally told
the man several times, and I think it was Lauren testified that
maybe he punched him, and maybe he pushed him, and this was towards
the area which had the corner and the staircase.”
{¶ 15} The trial court has discretion to give or refuse to give
additional instructions a party requests. Rice v. City of
Cleveland (1944), 144 Ohio St. 299. We may not reverse a conviction
for the court’s refusal to give a requested additional instruction
absent an abuse of discretion. An abuse of discretion is an
attitude that is unreasonable, arbitrary, or unconscionable.
Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83.
{¶ 16} The trial court denied Defendant’s request for an
additional instruction on self-defense authorized by R.C.
2901.09(B). We find no abuse of discretion.
{¶ 17} R.C. 2901.09(B) exempts an accused from criminal
liability arising from conduct involved “using force in
self-defense” in certain circumstances. Being an affirmative 6
defense, the burden of proving a particular claim of self-defense
is on the accused. R.C. 2901.05(A). If the conduct in which the
accused engaged involved no use of force, then R.C. 2901.09(B)
has no application.
{¶ 18} Defendant’s own testimony, supported by the other
evidence he offered, was that he did not participate in the assault
on Rowe. Implicit in that claim is the contention that Defendant
used no force at all.
{¶ 19} The State’s evidence demonstrated that Defendant used
force against Rowe. However, on this record, it would be
inconsistent with the burden of proof that R.C. 2901.05(A) places
on an accused to permit Defendant to rely on the State’s evidence
to claim self-defense when he denied that he used any force at
all, and when the State’s evidence presents no basis to find that
Defendant lawfully used force to protect himself, his home, or
another. R.C. 2901.09(B). The trial court did not act
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[Cite as State v. Suarez, 2011-Ohio-1438.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0008
vs. : T.C. CASE NO. 09CRB2004
DAVID M. SUAREZ : (Criminal Appeal from Municipal Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
Betsy A. Deeds, Atty. Reg. No.0076747, Asst. Pros. Attorney, 510 West Main Street, Fairborn, OH 45324 Attorney for Plaintiff-Appellee
Jessica R. Moss, Atty. Reg. No.0085437, P.O. Box 341148, Dayton, OH 45434 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, David M. Suarez, appeals from his conviction
for assault, R.C. 2903.13(A), and the one hundred and eighty-day
jail term and one hundred dollar fine imposed for that first degree
misdemeanor offense. 2
{¶ 2} The events from which Defendant’s conviction arose
occurred on May 27, 2009, at Defendant’s home in Fairborn. A number
of people had gathered there for a party and consumed alcohol.
One of them, Andrew Rowe, became upset when another man
inappropriately touched a female, who was Rowe’s girlfriend. Rowe
yelled at those present, and when he was then made to leave was
assaulted by several of the other men.
{¶ 3} Most of those present, including Defendant, fled after
the assault, which left Rowe bleeding and unconscious on the
basement floor. Police and medics were called, and Rowe was
transported to a hospital. Rowe suffered a concussion, a cut
lip, and significant bruising and swelling to his face. The
injuries required stitches to close wounds to his lip and left
eye.
{¶ 4} Defendant Suarez was charged by a complaint filed in
Fairborn Municipal Court with assault. R.C. 2903.13(A). The
charge was tried to a jury. Defendant and his witnesses testified
that Rowe was very intoxicated and became upset when he witnessed
the event involving his girlfriend. Defendant then asked Rowe
to leave. Rowe went upstairs, briefly, but returned to the
basement and threatened to fight everyone there. Rowe and another
man began to fight, at which time Defendant left his home.
Defendant denied ever hitting or using force against Rowe. 3
{¶ 5} The State’s witnesses testified that Rowe was attacked
and severely beaten by three men, including Defendant Suarez.
Christy Combs testified that Defendant struck Rowe in the face
several times. Sidney Bunnow testified that Defendant hit Rowe
several times. Lauren Smith, a friend of Defendant’s, testified
that Defendant hit Rowe twice.
{¶ 6} The jury found Rowe guilty of assault and he was convicted
and sentenced pursuant to law. Defendant appeals from his
conviction, presenting two assignments of error for our review.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY
ON THE CASTLE DOCTRINE.”
{¶ 8} The trial court must give all instructions that are
relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder. State v. Comen (1990),
50 Ohio St.3d 206. The court must correctly instruct on the
elements of the offense charged and all defenses raised by the
evidence. State v. Williford (1990) 49 Ohio St.3d 247.
{¶ 9} Crim.R. 30 provides that “any party may file written
requests that the court instruct the jury on the law as set forth
in the requests.” If a defendant has properly requested a
particular instruction, in accordance with Crim.R. 30, the court
errs if it fails to include the substance of the written instruction 4
in its charge to the jury. State v. Comen.
{¶ 10} Self-defense is an affirmative defense which, if proved,
relieves a defendant of criminal liability for force the defendant
used. “The burden of going forward with the evidence of an
affirmative defense, and the burden of proof, by a preponderance
of the evidence, for an affirmative defense, is upon the accused.”
R.C. 2901.05(A).
{¶ 11} R.C. 2901.09(B) codifies a form of self-defense known
as the “Castle Doctrine,” and provides:
{¶ 12} “For 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.”
{¶ 13} Following the court’s general instructions to the jury,
and before the jury retired, Defendant requested the court to give
the following additional instruction: “But if you find the
Defendant used only such force as was reasonably necessary to remove
Mr. Rowe from the premises . . ., you must find the Defendant not
guilty . . . , (and in) [m]aking this determination, you may not 5
attribute the force used by others” to the Defendant. (Tr. 253).
When the court asked Defendant’s counsel for the reason for the
request, counsel stated:
{¶ 14} “There was some testimony that he had the authority,
since he was residing there, although he was not on the lease,
and I think it was Lindsey that testified to that, that he had
authority to remove people. He had attempted – he had orally told
the man several times, and I think it was Lauren testified that
maybe he punched him, and maybe he pushed him, and this was towards
the area which had the corner and the staircase.”
{¶ 15} The trial court has discretion to give or refuse to give
additional instructions a party requests. Rice v. City of
Cleveland (1944), 144 Ohio St. 299. We may not reverse a conviction
for the court’s refusal to give a requested additional instruction
absent an abuse of discretion. An abuse of discretion is an
attitude that is unreasonable, arbitrary, or unconscionable.
Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83.
{¶ 16} The trial court denied Defendant’s request for an
additional instruction on self-defense authorized by R.C.
2901.09(B). We find no abuse of discretion.
{¶ 17} R.C. 2901.09(B) exempts an accused from criminal
liability arising from conduct involved “using force in
self-defense” in certain circumstances. Being an affirmative 6
defense, the burden of proving a particular claim of self-defense
is on the accused. R.C. 2901.05(A). If the conduct in which the
accused engaged involved no use of force, then R.C. 2901.09(B)
has no application.
{¶ 18} Defendant’s own testimony, supported by the other
evidence he offered, was that he did not participate in the assault
on Rowe. Implicit in that claim is the contention that Defendant
used no force at all.
{¶ 19} The State’s evidence demonstrated that Defendant used
force against Rowe. However, on this record, it would be
inconsistent with the burden of proof that R.C. 2901.05(A) places
on an accused to permit Defendant to rely on the State’s evidence
to claim self-defense when he denied that he used any force at
all, and when the State’s evidence presents no basis to find that
Defendant lawfully used force to protect himself, his home, or
another. R.C. 2901.09(B). The trial court did not act
unreasonably when it overruled Defendant’s request to give the
additional instruction.
{¶ 20} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 21} “THE APPELLANT’S CONVICTION FOR ASSAULT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 22} A weight of the evidence argument challenges the 7
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 23} “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 lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
{¶ 24} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State
v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 25} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the fact finder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within 8
the peculiar competence of the fact finder, who has seen and heard
the witness.”
{¶ 26} This court will not substitute its judgment for that
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 27} Defendant argues that his conviction for assault in
violation of R.C. 2903.13, knowingly causing physical harm to
another, is against the manifest weight of evidence because the
weight of the testimony presented by Defendant and his witnesses
is such that the jury clearly lost its way in rendering a guilty
verdict. Defendant points out that he testified at trial that
he tried to calm Rowe down and prevent him from getting into a
fight with other people, Defendant asked Rowe to leave, and
Defendant emphatically denied hitting Rowe or having any physical
contact with him. Jordan Price testified that he was the only
person who hit Rowe. Linda Nichols testified that Defendant did
not punch Rowe.
{¶ 28} On the other hand, the evidence presented by the State
demonstrates that Andrew Rowe was attacked and severely beaten
by three men in the basement of Defendant’s residence, and that
Defendant was one of the men who attacked Rowe. Rowe suffered 9
multiple injuries that required emergency medical treatment.
Eyewitnesses testified that Defendant hit Rowe multiple times.
The credibility of the witnesses and the weight to be given to
their testimony were matter for the trier of facts, the jury here,
to decide. DeHass. The jury did not lose its way simply because
it chose to believe the State’s witnesses, rather than Defendant
and his witnesses, which it had a right to do. Id.
{¶ 29} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s conviction for assault is not against the manifest
weight of the evidence.
{¶ 30} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J. And DONOVAN, J., concur.
Copies mailed to:
Betsy A. Deeds, Esq. Jessica R. Moss, Esq. Hon. Beth W. Root