H. Brown, J.
In the instant case, we must determine whether the failure to instruct the jury on retreat and defense of family was error, and, if so, whether the errors were preserved for appeal. We answer these questions in the affirmative and affirm the decision by the court of appeals.
I
Under Ohio law, self-defense is an affirmative defense. State v. Martin (1986), 21 Ohio St. 3d 91, 21 OBR 386, 488 N.E. 2d 166, affirmed Martin v. Ohio (1987), 480 U.S. 228. To establish self-defense, the defendant must show “* * * (1) * * * [he] was not at fault in creating the situation giving rise to the affray; (2) * * * [he] has [sic] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of * * * force; and (3) * * * [he] must not have violated any duty to retreat or avoid the danger. * * *” State v. Robbins (1979), 58 Ohio St. 2d 74, 12 O.O. 3d 84, 388 N.E. 2d.755, paragraph two of the syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. State v. McLeod (1948), 82 Ohio App. 155, 157, 37 O.O. 522, 522-523, 80 N.E. 2d 699, 700. “If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.” (Emphasis sic.) State v. Jackson (1986), 22 Ohio St. 3d 281, 284, 22 OBR 452, 455, 490 N.E. 2d 893, 897, certiorari denied (1987), 480 U.S. 917.
The jury instruction in the instant case correctly explained this basic standard. Appellee agrees, but argues that there should have been a further instruction that he was privileged to defend the members of his family, and that he was under no duty to retreat from his home.
Defense of Family
Ohio law has long recognized a privilege to defend the members of one’s family. Sharp v. State (1850), 19 [250]*250Ohio 379, 387 (“It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other.”); State v. Sheets (1926), 115 Ohio St. 308, 309, 152 N.E. 664. As the court of appeals stated, if appellee, “in the careful and proper use of his faculties, in good faith and upon reasonable ground believed that his wife and family were in imminent danger of death or serious bodily harm * * * [appellee] was entitled to use such reasonably necessary force, even to the taking of life, to defend his wife and family as he would be entitled to use in defense of himself.”
Appellee presented testimony that Carter was threatening Mrs. Williford with physical harm from the beginning of the altercation. A properly instructed jury, if it believed this testimony, could have found that appellee was acting in defense of his wife throughout the altercation. Further, appellant has never contended that Mrs. Williford would not have been privileged to use force in her own defense. The failure to instruct on defense of family was error.
No Duty to Retreat
In most circumstances, a person may not kill in self-defense if he has available a reasonable means of retreat from the confrontation. Jackson, supra, at 283-284, 22 OBR at 454, 490 N.E. 2d at 896; Robbins, supra, at 79-81, 12 O.O. 3d at 87-88, 388 N.E. 2d at 758-759; Marts v. State (1875), 26 Ohio St. 162, 167-168. However, “[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life.” State v. Peacock (1883), 40 Ohio St. 333, 334. Implicit in this statement of law is the rule that there is no duty to retreat from one’s home. See Jackson, supra, at 284, 22 OBR at 454, 490 N.E. 2d at 896.
In the instant case, there was testimony that the confrontation took place inside appellee’s house and on appellee’s porch. Because the jury was not instructed on the Peacock rule, it might have believed that appellee was under a duty to retreat from his home. It was therefore error for the court to fail to give this instruction.
Were the Errors Harmless?
Appellant argues that, in returning a guilty verdict, the jury impliedly found that appellee’s testimony on the first two elements of self-defense was not credible, and, therefore, appellee could not have prevailed even if the jury had been properly instructed.
We find this argument unpersuasive. Due to the nature of the evidence, the jury may have based its verdict on any one of several theories. It might have accepted appellant’s version of the facts, finding that appellee lured Carter onto the porch and killed him in cold blood. It might have found that appellee acted in self-defense, or in defense of his wife, but used more force than was reasonably necessary. It might have mistakenly concluded that appellee violated a duty to retreat from his home. It might have found that appellee was acting to protect his wife from imminent danger of serious bodily harm, but mistakenly believed that he had no privilege to do so. The record gives no basis upon which to prefer any one of these explanations for the verdict.
Appellant cites Jackson, supra, as controlling. In Jackson, the defendant was charged with killing his homosexual lover in a fit of jealous anger. Defendant pled not guilty by reason of self-defense. Jackson, supra, at 281, 22 OBR at 452, 490 N.E. 2d at 894-895. [251]*251He claimed prejudicial error because the trial court refused to give an instruction that he had no duty to retreat from his home. Id. at 284, 22 OBR at 455, 490 N.E. 2d at 897.
Jackson and his victim fought outside Jackson’s apartment. Id. at 284-285, 22 OBR at 455, 490 N.E. 2d at 897. After the fight was broken up, Jackson threatened to kill the victim, then immediately went into his apartment to get his gun. As the victim was walking up the porch stairs to retrieve some belongings from Jackson’s apartment, Jackson shot him. The victim was not carrying a weapon. Id. at 285, 22 OBR at 455, 490 N.E. 2d at 897. We noted that the witnesses who testified in support of Jackson’s claim of self-defense were “thoroughly discredited,” and found the error to be harmless. Id.
The facts of Jackson differ greatly from those in the instant case. Jackson failed to raise a remotely colorable claim of self-defense. Here, appellee presented testimony which, if believed by a properly instructed jury, would have supported an acquittal. We cannot say that the errors in the instant case were harmless.
II
The court of appeals found that appellee’s failure to tender instructions in writing pursuant to Crim. R. 30(A) waived any error. However, the court of appeals reversed and remanded for a new trial because it considered the failure to correctly instruct the jury to be plain error.
Crim. R. 30(A) states:
“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.
Free access — add to your briefcase to read the full text and ask questions with AI
H. Brown, J.
In the instant case, we must determine whether the failure to instruct the jury on retreat and defense of family was error, and, if so, whether the errors were preserved for appeal. We answer these questions in the affirmative and affirm the decision by the court of appeals.
I
Under Ohio law, self-defense is an affirmative defense. State v. Martin (1986), 21 Ohio St. 3d 91, 21 OBR 386, 488 N.E. 2d 166, affirmed Martin v. Ohio (1987), 480 U.S. 228. To establish self-defense, the defendant must show “* * * (1) * * * [he] was not at fault in creating the situation giving rise to the affray; (2) * * * [he] has [sic] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of * * * force; and (3) * * * [he] must not have violated any duty to retreat or avoid the danger. * * *” State v. Robbins (1979), 58 Ohio St. 2d 74, 12 O.O. 3d 84, 388 N.E. 2d.755, paragraph two of the syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. State v. McLeod (1948), 82 Ohio App. 155, 157, 37 O.O. 522, 522-523, 80 N.E. 2d 699, 700. “If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.” (Emphasis sic.) State v. Jackson (1986), 22 Ohio St. 3d 281, 284, 22 OBR 452, 455, 490 N.E. 2d 893, 897, certiorari denied (1987), 480 U.S. 917.
The jury instruction in the instant case correctly explained this basic standard. Appellee agrees, but argues that there should have been a further instruction that he was privileged to defend the members of his family, and that he was under no duty to retreat from his home.
Defense of Family
Ohio law has long recognized a privilege to defend the members of one’s family. Sharp v. State (1850), 19 [250]*250Ohio 379, 387 (“It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other.”); State v. Sheets (1926), 115 Ohio St. 308, 309, 152 N.E. 664. As the court of appeals stated, if appellee, “in the careful and proper use of his faculties, in good faith and upon reasonable ground believed that his wife and family were in imminent danger of death or serious bodily harm * * * [appellee] was entitled to use such reasonably necessary force, even to the taking of life, to defend his wife and family as he would be entitled to use in defense of himself.”
Appellee presented testimony that Carter was threatening Mrs. Williford with physical harm from the beginning of the altercation. A properly instructed jury, if it believed this testimony, could have found that appellee was acting in defense of his wife throughout the altercation. Further, appellant has never contended that Mrs. Williford would not have been privileged to use force in her own defense. The failure to instruct on defense of family was error.
No Duty to Retreat
In most circumstances, a person may not kill in self-defense if he has available a reasonable means of retreat from the confrontation. Jackson, supra, at 283-284, 22 OBR at 454, 490 N.E. 2d at 896; Robbins, supra, at 79-81, 12 O.O. 3d at 87-88, 388 N.E. 2d at 758-759; Marts v. State (1875), 26 Ohio St. 162, 167-168. However, “[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life.” State v. Peacock (1883), 40 Ohio St. 333, 334. Implicit in this statement of law is the rule that there is no duty to retreat from one’s home. See Jackson, supra, at 284, 22 OBR at 454, 490 N.E. 2d at 896.
In the instant case, there was testimony that the confrontation took place inside appellee’s house and on appellee’s porch. Because the jury was not instructed on the Peacock rule, it might have believed that appellee was under a duty to retreat from his home. It was therefore error for the court to fail to give this instruction.
Were the Errors Harmless?
Appellant argues that, in returning a guilty verdict, the jury impliedly found that appellee’s testimony on the first two elements of self-defense was not credible, and, therefore, appellee could not have prevailed even if the jury had been properly instructed.
We find this argument unpersuasive. Due to the nature of the evidence, the jury may have based its verdict on any one of several theories. It might have accepted appellant’s version of the facts, finding that appellee lured Carter onto the porch and killed him in cold blood. It might have found that appellee acted in self-defense, or in defense of his wife, but used more force than was reasonably necessary. It might have mistakenly concluded that appellee violated a duty to retreat from his home. It might have found that appellee was acting to protect his wife from imminent danger of serious bodily harm, but mistakenly believed that he had no privilege to do so. The record gives no basis upon which to prefer any one of these explanations for the verdict.
Appellant cites Jackson, supra, as controlling. In Jackson, the defendant was charged with killing his homosexual lover in a fit of jealous anger. Defendant pled not guilty by reason of self-defense. Jackson, supra, at 281, 22 OBR at 452, 490 N.E. 2d at 894-895. [251]*251He claimed prejudicial error because the trial court refused to give an instruction that he had no duty to retreat from his home. Id. at 284, 22 OBR at 455, 490 N.E. 2d at 897.
Jackson and his victim fought outside Jackson’s apartment. Id. at 284-285, 22 OBR at 455, 490 N.E. 2d at 897. After the fight was broken up, Jackson threatened to kill the victim, then immediately went into his apartment to get his gun. As the victim was walking up the porch stairs to retrieve some belongings from Jackson’s apartment, Jackson shot him. The victim was not carrying a weapon. Id. at 285, 22 OBR at 455, 490 N.E. 2d at 897. We noted that the witnesses who testified in support of Jackson’s claim of self-defense were “thoroughly discredited,” and found the error to be harmless. Id.
The facts of Jackson differ greatly from those in the instant case. Jackson failed to raise a remotely colorable claim of self-defense. Here, appellee presented testimony which, if believed by a properly instructed jury, would have supported an acquittal. We cannot say that the errors in the instant case were harmless.
II
The court of appeals found that appellee’s failure to tender instructions in writing pursuant to Crim. R. 30(A) waived any error. However, the court of appeals reversed and remanded for a new trial because it considered the failure to correctly instruct the jury to be plain error.
Crim. R. 30(A) states:
“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies of such requests shall be furnished to all other parties at the time of making such requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The court need not reduce its instructions to writing.
“A party may not assign as error the giving or failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
We have repeatedly held that a failure to object before the jury retires in accordance with the second paragraph of Crim. R. 30(A), absent plain error, constitutes a waiver. State v. Underwood (1983), 3 Ohio St. 3d 12, 3 OBR 360, 444 N.E. 2d 1332; State v. Long (1978), 53 Ohio St. 2d 91, 7 O.O. 3d 178, 372 N.E. 2d 804; State v. Lane (1976), 49 Ohio St. 2d 77, 3 O.O. 3d 45, 358 N.E. 2d 1081; State v. Lockett (1976), 49 Ohio St. 2d 48, 3 O.O. 3d 27, 358 N.E. 2d 1062, reversed on other grounds Lockett v. Ohio (1978), 438 U.S. 586; State v. Roberts (1976), 48 Ohio St. 2d 221, 2 O.O. 3d 399, 358 N.E. 2d 530.
A
In the instant case, appellee’s counsel objected to the lack of an instruction on the Peacock “no retreat” rule before the jury retired. However, appellee did not proffer a “no retreat” instruction.
The absence of a “no retreat” instruction was erroneous because it rendered the jury instructions incomplete. A criminal defendant has a right to expect that the trial court will give complete jury instructions on all issues raised by the evidence. See, [252]*252generally, State v. Procter (1977), 51 Ohio App. 2d 151, 5 O.O. 3d 309, 367 N.E. 2d 908 (prejudicial error for jury instructions to omit defense of duress where it is properly supported by evidence); State v. Bridgeman (1977), 51 Ohio App. 2d 105, 5 O.O. 3d 275, 366 N.E. 2d 1378 (failure to instruct jury on all elements and specifications of the crime charged is plain error). Additionally, it is not realistic to expect counsel to anticipate errors of omission or misstatements of the law in the trial court’s instructions and proffer written instructions in order to preserve possible errors for appeal. Accordingly, we hold that, where the trial court fails to give a complete or correct jury instruction on the elements of the offense charged and the defenses thereto which are raised by the evidence, the error is preserved for appeal when the defendant objects in accordance with the second paragraph of Crim. R. 30(A), whether or not there has been a proffer of written jury instructions in accordance with the first paragraph of Crim. R. 30(A). We therefore affirm the judgment of the court below as to this issue, though on different grounds.1
B
Appellee did not proffer instructions, or object to the lack of instructions, on defense of family. Accordingly, we must determine whether the lack of such instruction was plain error within the meaning of Crim. R. 52(B). The plain error rule should not be invoked unless, but for the error, the outcome of the trial would clearly have been otherwise. State v. Cooperrider (1983), 4 Ohio St. 3d 226, 227, 4 OBR 580, 581, 448 N.E. 2d 452, 453. The application of the rule is to prevent manifest injustice. Id.
In the instant case, the evidence presented by appellee, if believed by a properly instructed jury, would support an acquittal on the grounds of defense of family! The court below [253]*253noted, “[t]he failure of the trial court to so instruct the jury affected [appellee’s] substantial rights, and may well have contributed to his conviction.” We cannot say that, but for this error, the outcome of the trial would clearly have been otherwise. However, when this error is combined with the failure to give a proper “no retreat” instruction, we believe it rises to the level of plain error.
Accordingly, the judgment of the court of appeals is affirmed and the cause is remanded for a new trial consistent with this opinion.
Judgment affirmed.
Sweeney, Holmes and Wright, JJ., concur.
Moyer, C.J., Douglas and Res-nick, JJ., dissent.