[Cite as In re B.M., 2018-Ohio-1733.] 

 

Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Reversed and Appellant Discharged 

Date of Judgment Entry on Appeal: May 4, 2018 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, 

Assistant Prosecuting Attorney, for Appellee, 

Raymond T. Faller, Hamilton County Public Defender, Sarah N. Weber and Julie 

Kahrs Nessler, Assistant Public Defenders, for Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: B.M. : 

: 

: 

APPEAL NO. C-170103 

 TRIAL NO. 16-4971X 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

MILLER, Judge.

{¶1} Following a bench trial before a magistrate, 14-year-old B.M. was 

adjudicated delinquent for committing an act that had she been an adult would have 

constituted felonious assault. B.M. now claims that the juvenile court’s delinquency 

finding was against the manifest weight of the evidence. For the following reasons, 

we reverse B.M.’s adjudication. 

Facts 

{¶2} B.M. lived with her mother, S.W., stepfather, L.W., and her sister. One 

day, B.M. and her sister neglected to lock the front door when they went to the 

library. L.W. returned home from work and found the house unlocked. When B.M. 

returned home, L.W. confronted her about the door and attempted to poke her. B.M. 

swung at L.W. L.W. was not permitted by S.W. to physically discipline B.M. L.W. 

told B.M. to go upstairs to her room to wait until her mother was home. B.M. 

complied. 

{¶3} When S.W. returned home, B.M. was called downstairs to discuss the 

matter. L.W. became angry and started yelling in B.M.’s face. B.M.’s hands were at 

her sides. She stepped back, her hands still down. L.W. grabbed B.M. and wrapped 

his arms around her body, with one arm around her neck. B.M. had trouble talking 

and breathing. B.M. said L.W. was attempting to pull her down. B.M. then stabbed 

L.W. twice with a steak knife that she had in her pocket. She wounded L.W. near his 

elbow and in the upper thigh. 

{¶4} B.M. claimed that she acted in self-defense, only stabbing L.W. to free 

herself from his chokehold. The magistrate disagreed, finding that B.M. failed to 

establish each element of the affirmative defense of self-defense with nondeadly 
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force. Over B.M.’s objections, the juvenile court adopted the magistrate’s decision. 

B.M. now appeals. 

Analysis 

{¶5} In her first assignment of error, B.M. claims that the juvenile court 

erred as a matter of law in adjudicating her delinquent of felonious assault because 

the evidence demonstrated that she acted in self-defense. 

{¶6} As an initial matter, there are two affirmative defenses for self-defense. 

The juvenile court incorrectly applied the standard for self-defense using nondeadly 

force. Both B.M. and the state argue this is error, and agree that the correct 

affirmative defense under these facts is self-defense using deadly force. 

{¶7} Under R.C. 2901.01(A)(2), “deadly force” means any force that carries 

a substantial risk that it will proximately result in the death of any person. The 

application of the deadly-force standard for self-defense is appropriate when a 

defendant has been charged with felonious assault for harming someone with a 

knife. See In re Bumpus, 1st Dist. Hamilton No. C-020776, 2003-Ohio-4307 

(deadly-force standard used where juvenile used knife to stab victim in the torso and 

shoulder); State v. Hansen, 4th Dist. Athens No. 01CA15, 2002-Ohio-6135 (deadlyforce jury instruction given where defendant slashed victim with a lock-blade knife); 

State v. Sims, 8th Dist. Cuyahoga No. 85608, 2005-Ohio-5846 (deadly-force jury 

instruction appropriate where defendant used kitchen knife to stab victim in the face 

as he lunged at her). Here, B.M. stabbed her stepfather with a steak knife in his arm 

and in the upper thigh. We find that self-defense using deadly force is the applicable 

affirmative defense. 

{¶8} In order to establish the affirmative defense of self-defense using 

deadly force, B.M. had to prove by a preponderance of the evidence that (1) she was 
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not at fault in creating the situation giving rise to the assault; (2) she had a bona fide 

belief that she was in imminent danger of death or great bodily harm and her only 

means of escape from such danger was in the use of force; and (3) she had not 

violated any duty to retreat or avoid the danger. In re Bumpus at ¶ 8. 

{¶9} To determine whether B.M. established the elements of self-defense 

using deadly force we consider the manifest weight of the evidence. See, e.g., In re 

J.P., 8th Dist. Cuyahoga No. 81486, 2003-Ohio-3522. “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 [factfinder] clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed * * *.” State v. Thompkins, 78 Ohio 

St.3d 380, 678 N.E.2d 541 (1997). 

{¶10} We first inquire whether B.M. was at fault for creating the situation. 

B.M. was called downstairs by both her mother and L.W. to discuss the incident that 

had happened earlier that day between B.M. and L.W. B.M. did not initiate a 

confrontation. L.W. became irate as he spoke. S.W. testified that immediately prior 

to the stabbing, B.M. stepped back, with her hands at her sides. L.W. preemptively 

restrained B.M. because he believed she intended to swing at him. B.M.’s moving 

away from L.W. is what caused him to grab B.M. There is no evidence of any 

additional provocative action by B.M. Thus, there is no indication that B.M. actually 

instigated any physical contact; by all accounts, L.W. made the first move. L.W.’s 

subjective belief that B.M. would swing at him is not supported by the record, and his 

misperception is not attributable to B.M. L.W.’s belief that B.M. might hit him 

cannot be used to ascribe fault to B.M. 
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{¶11} The court took issue with B.M. putting the knife in her pocket before 

going downstairs for the discussion. But B.M.’s possession of the concealed weapon 

did not create the situation. Prior to grabbing her, L.W. did not know B.M. had the 

knife. He only realized that she possessed a weapon when he “felt something happen 

to his arm and leg” after he grabbed her. The presence of the knife had no influence 

on L.W.’s decision to place his arms around B.M. and did not create the situation 

that gave rise to the assault. Accordingly, the first element of self-defense was met. 

{¶12} Second, B.M. had to prove that she had a bona fide belief that she was 

in imminent danger of great bodily harm or death and her only means of escape from 

such danger was stabbing L.W. The trier of fact “must consider the entire situation 

and determine whether the person’s actions were reasonable under the 

circumstances.” In re Bumpus, 1st Dist. Hamilton No. C-020776, 2003-Ohio-4307, 

at ¶ 11, quoting State v. Napier, 105 Ohio App.3d 713, 664 N.E.2d 1330 (1st 

Dist.1995); see State v. Oates, 2013-Ohio-2609, 993 N.E.2d 846, ¶ 11 (3d Dist.) 

(defendant’s bona fide belief means a belief that was both objectively reasonable and 

subjectively honest). Here, L.W., an adult male who was already angry with B.M. 

because of the earlier incident, confronted B.M. and physically restrained her by 

wrapping his arms around her body. B.M. had trouble talking and breathing because 

L.W.’s arm was around her neck. B.M. described L.W.’s movement as attempting to 

pull her down to the ground, at which point she would have been in an even more 

vulnerable position. S.W. was concerned for B.M.’s safety. The magistrate found 

that B.M. was reasonable to respond with some force. Further, there was no 

evidence of serious injury from the two stab wounds to L.W.’s arm and upper thigh, 

and B.M. immediately dropped the knife once L.W. let her go. It is unclear what less 

force 14-year-old B.M. could have successfully applied against a grown man in this 
OHIO FIRST DISTRICT COURT OF APPEALS

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circumstance. In conformance with the juvenile court’s finding that the use of some 

force was reasonable, we hold that it was objectively reasonable for B.M. to have had 

a genuine and honest belief that she was in danger of serious bodily harm and she 

used appropriate force to escape. 

{¶13} Finally, B.M. did not have a legal duty to retreat. Under R.C. 

2901.09(B), “a person who lawfully is in that person’s residence has no duty to 

retreat before using force in self-defense.” B.M. was in her home when she stabbed 

L.W. to protect herself. Pursuant to the findings set forth in the magistrate’s decision 

and adopted by the juvenile court, we hold that B.M. proved the affirmative defense 

of self-defense. Accordingly, we sustain B.M.’s first assignment of error. 

In her second assignment of error, B.M. argues that the juvenile court erred in 

not considering aggravated assault when there was evidence of provocation. This 

assignment of error is made moot by our disposition of the first assignment of error 

and we do not address it. 

Conclusion 

{¶14} In conclusion, because B.M. proved that she acted in self-defense and 

self-defense is a complete defense to felonious assault, we reverse the judgment of 

the juvenile court and discharge B.M. 

Judgment reversed and appellant discharged. 

MYERS, P.J., and DETERS, J., concur. 

Please note: 

The court has recorded its own entry on the date of the release of this opinion.