[Cite as State v. Eddy , 2022 - Ohio - 3965.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1 - 22 - 17 PLAINTIFF - APPELLEE,
v. CALEB EDDY, O P I N I O N DEFENDANT - APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 21CRB01452 Judgment Affirmed Date of Decision: November 7, 2022

APPEARANCES: Thomas J. Lucente Jr. for Appellant Joseph C. Snyder for AppelleeCase No. 1

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W ILLAMOWSKI , J. {¶1} Defendant

- appellant Caleb Eddy (“ Eddy ”) appeals the judgment of the Lima Municipal Court , alleging that his conviction is against the manifest weight of the evidence and that the trial court erred in stating the law on self

- defense at his bench trial
. For the reasons set forth below, the judgment of the trial court is affirmed. Facts and Procedural History {¶2} Eddy and S.P. were in a relationship and resided together
. Tr. 5. After S.P. and Eddy had an argument on July 8, 2021, S.P. removed the house key from Eddy’s key chain without his knowledge. Tr. 6. S.P. later explained that she took this house key bec ause Eddy had packed his belongings and because she believed that he was about to move out of the house. Tr. 22 , 24
. She further testified that she wanted him to leave but that he remained at the house that night. Tr. 22. {¶3} On July 9, 2021, S.P. and Edd y had another argument. Tr. 5

- 6. At some point, Eddy removed himself from the argument and went outside. Tr. 17. He then came back into the house, having decided to leave the premises. Tr. 18. As he prepared to leave, Eddy realized that the house key was missing. Tr. 18. He then went into the bedroom to locate the house key and began rummaging through S.P.’s purse. Tr. 18. S.P. then went into the bedroom after Eddy. Tr. 18. {¶4} When S.P. entered into the bedroom, Eddy was facing away from her. Tr. 8. S.P. testified that she came alongside Eddy and attempted to stop him fromCase No. 1

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getting her house key from her purse . Tr. 7

- 8. She stated that Eddy pushed her away but that she then r eturned to his side and reached again for her house key. Tr. 7

- 8. S.P. stated that Eddy then pushed her away again and stated that this second push was more forceful than the first . Tr. 8. In response, S.P. pushed Eddy back
. Tr. 9. Eddy and S.P. then began struggling with each other. Tr. 9. {¶5} Eddy then managed to pin S.P. down with her back on the bed and her feet on the floor. Tr. 9. S.P. testified that she went into “defense mode” and started trying to scratch his face . Tr. 9. She recounted, at this point, grabbing Eddy’s testicles as “hard as * * * [she] could” because she believed “that [this] would get him off of [her] * * *.” Tr. 10. She testified that, in response, Eddy lifted her up off of the bed “and slam[ed her] * * * to the floor.” Tr. 10. {¶6} S.P. testified that Eddy then “g[o]t on top of [her] * * * and pin[ned her] * * * down.” Tr. 11. She then stated the following: He put his knee into my right shoulder and held my left arm down to the ground with his left hand. And drew his hand back like he was going to punch me. And at that point, I quit fighting cuz I couldn’t move. * * * I completely gave up and just told him to get off of me. I just kept yelling for him to get off of me. Until he finally, after maybe, I don’t know, maybe forty seconds or so, he finally got off of me. Tr. 11, 12. S.P. stated that she got up ; grabbed her phone ; went into a spare bedroom ; called 9

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- 1 ; and reported the altercation to the dispatcher . Tr. 12

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{¶7} S.P. then called her friend, Joelene Sibeneck (“Sibeneck”), and recounted the events of that evening. Tr. 14, 25. On Sibeneck’s recommendation, S.P. locked herself in the bathroom while Sibeneck and her husband drove to S.P.’s house. Tr. 14, 26. Sibeneck then took S.P. from her ho use to a local Urgent Care for a medical examination. Tr. 14. A police officer met S.P. at the Urgent Care and took a statement from her about this incident. Tr. 29. {¶8} On July 30, 2021, complaints were filed that alleged that Eddy had committed the of

fense of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree, and the offense of assault in violation of R.C. 2903.13(A), a misdemeanor of the first degree. Doc. 1

- 2. On January 28, 2022, both S.P. and Sibeneck testified at a bench trial on these charges . Doc. 16. Tr. 5, 25. The Defense then made Crim.R. 29 motions to challenge both charges . Tr. 31. On January 31, 2022, the trial court issued judgment entries that found Eddy not guilty of domestic violence under R.C. 2919.25(A) and guilty of assault in violation of R.C. 2903.13(A). Doc. 16

- 17. {¶9} Eddy then filed his notice of appeal on February 24, 2022 . Doc. 18 . On appeal, he raises the following two assignments of error: First Assignment of Error The trial court er red when it stated the law of self - defense required defendant to retreat.Case No. 1

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- Second Assignment of Error Appellant’s conviction were against the manifest weight of the evidence and contrary to law. For the sake of analytical clarity, we will consider Eddy’s second assignment of error before his first assignment of error
. Second Assignment of Error {¶10} Eddy argues that the trial court erred in concluding that the State carried the burden of establishing that Eddy did not act in self

- defense. He asserts that his conviction is, therefore, against the manifest weight of the evidence. Legal Standard {¶11} In a manifest weight analysis, “an appellate court determines whether the state has appropriately carried its burden of persuasion.” State v. Blanton , 121 Ohio App.3d 162, 169, 699 N.E.2d 136 (3d Dist. 1997). “Unlike our review of the sufficiency of the evidence, an appellate court ’ s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict.” State v. Richey , 2021

- Ohio

- 1461, 170 N.E.3d 933, ¶ 29 (3d Dist.) , quoting State v. Plott , 2017

- Ohio

- 38, 80 N.E.3d 1108, ¶ 73 (3d Dist.)
. {¶12} Accordingly , “the appellate court sits as a ‘thirteenth j uror’ * * *.” State v. Davis , 3d Dist. Seneca No. 13

- 16

- 30, 2017

- Ohio

- 2916, ¶ 17, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 1997

- Ohio

- 52, 678 N.E.2d 541 (1997)
. Appellate courtsCase No. 1

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must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost its way and created such a manifest mi scarriage of justice that the conviction must be reversed and a new trial ordered.’ State v. Brentlinger , 2017 - Ohio - 2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting Thompkins at 387. State v. Schatzinger , 3d Dist. Wyandot No. 16

- 20

- 04, 2021

- Ohio

- 167, ¶ 52. {¶13} “A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses.” State v. Sullivan , 2017

- Ohio

- 8937, 102 N.E.3d 86, ¶ 38 (3d Dist.), quoting State v. C oleman , 3d Dist. Allen No. 1

- 13

- 53, 2014

- Ohio

- 5320, ¶ 7. “Only in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court’ s judgment.” State v. Little , 2016

- Ohio

- 8398, 78 N.E.3d 32 3, ¶ 27 (3d Dist.), quoting State v. Hunter , 131 Ohio St.3d 67, 2011

- Ohio

- 6524, 960 N.E.2d 955, ¶ 119. {¶14} Assault in violation of R.C. 2903.13(A) occurs where a person “knowingly cause[s] or attempt[s] to cause physical harm to another * * *.” R.C. 2903.13 (A). However, under Ohio law, “[a] person is allowed to act in self

defense.” R.C. 2901.05(B)(1). “Self

- defense is an affirmative defense.” State v. Jacinto , 2020

- Ohio

- 3722, 155 N.E.3d 1056, ¶ 43 (8th Dist.)
. “The elements of self

defense differ depen ding on whether the defendant used deadly or non

- deadly force to defend himself.” State v. Chavez , 3d Dist. Seneca Nos. 13

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- 05, 13

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- 06, andCase No. 1

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13

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- 07, 2020

- Ohio

- 426, ¶ 39, quoting State v. Bagley , 3d Dist. Allen No. 1

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- 31, 2014

- Ohio

- 1787, ¶ 15. {¶15} S el f

- defense through the use of non

- deadly force is present where: (1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily ha rm; and (3) the only means to protect himself from such danger was the use of force not likely to cause death or great bodily harm. Chavez at ¶ 40, citing State v. Vu , 10th Dist. Franklin No. 09AP

- 606, 2010

- Ohio

4019, ¶ 10 ; Ohio Jury Instructions , CR Section 421.19 (Rev. Oct. 11, 2008). See State v. Barker, 2d Dist. Montgomery No. 29227, 2022

- Ohio

- 3756, ¶ 24; State v. Elam , 12th Dist. Butler No. CA2021

- 08

- 106, 2022

- Ohio

- 1895, ¶ 13. {¶16} As to the first element of self

- defense, “O hio cour ts have long recognized that a person cannot provoke [an] assault or voluntarily enter an encounter and then claim a right of self

- defense.” State v. Woodson , 6th Dist. Lucas No. L

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- 1068, 2022

- Ohio

- 2528, ¶ 82, quoting State v. Nichols , 4th Dist. Scioto No. 01CA2775, 2002 WL 126973, *3 (Jan. 22, 2002)
. This means the defendant must not be at fault in creating the situation that gave rise to the affray. Nichols at *9 - 10. This concept is broader than simply not being the immediate aggressor. Id . at *10. A person may not provoke an assault or voluntarily enter an encounter and then claim a right of self - defense. Id .; State v. Lewis , 12th Dist. Butler No. CA2019 - 07 - 128, 15 6 N.E.3d 281, 2020 - Ohio - 3762, ¶ 27. State v. Elam , 12th Dist. Butler No. CA2021

- 08

- 106, 2022

- Ohio

- 1895, ¶ 14. The defendant must not have “engaged in such wrongful conduct toward his assailantCase No. 1

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that the assailant was provoked to attack the defendant.” St ate v. Gillespie , 172 Ohio App.3d 304, 2007

- Ohio

- 3439, 874 N.E.2d 870, ¶ 17 (2d Dist.). {¶17} R.C. 2901.05 places the burden on the State “to disprove at least one of the elements of self

- defense beyond a reasonable doubt.” State v. Cervantes , 3d Dist. Henry No. 7

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- 06, 2022

- Ohio

- 2536, ¶ 59, quoting State v. Carney , 10th Dist. Franklin No. 19AP

- 4 02, 2020

- Ohio

- 2691, ¶ 31. ‘[U ]nder the current version of R.C. 2901.05(B), the state is not required to prove the defendant did not act in self - defense until the defendant introduces evidence that tends to supp ort they acted in self

- defense.’ State v. W

alker , 6th Dist. Lucas No. L - 20 - 1047, 180 N.E.3d 60, 2021 - Ohio - 3860, ¶ 61. ‘ In other words, the defendant maintains the burden of production on their self defense claim before the state inh erits the burden of persuasion.’ Id ., citing State v. Petway , 11t h Dist. Lake No. 2019 - L - 124, 156 N.E.3d 467, 2020 - Ohio - 3848, ¶ 55. Cervantes at ¶ 60. “ The elements of self

- defense are cumulative, and a defendant’ s claim of self

- defense fails if any one of the elements is not present. ” State v. Ridley , 1st Dist. Hami lton No. C

- 210458, 2022

- Ohio

- 2561, ¶ 15. Legal Analysis {¶18} Neither party disputes that the standard for self

- defense through non

deadly force is applicable in this case
. On appeal, Eddy argues that the State “provided no evidence” that disproves an element of self

- defense through the use of
non - deadly force
. Appellant’s Brief, 9. In response, the State argues that it disproved the first element of this affirmative defense
. This first element requiresCase No. 1

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that the defendant “ not [ be ] at fault in creating the situation [that] g [ave] rise to the affray * * *.” Chavez, supra , at ¶ 39, 40. {¶19} At trial , the State called S.P. as a witness. Tr. 5. She testified that, immediately preceding the altercation, Eddy had gone into th e bedroom and was trying to get her house key from a key ring that was in her purse. Tr. 6. S.P. stated that she “ walked to the side o f him [Eddy] to try to reach around to grab * * * [her] keys.” Tr. 8. She testified that Eddy then pushed her away. Tr. 8. S.P. t estified that she returned to Eddy’s side and that he then shoved her away
. Tr. 8. She stated that Eddy applied more force the second time that he pushed her
. Tr. 8. S.P. said that she then pushed Eddy back and that the “fight escalated ” with the two of them “throwing punches at each other.” Tr. 9. {¶20} S.P.’s testimony indicates that Eddy initiated the physical altercation as he was the first one to use force in this case . Tr. 6, 8. Her testimony also indicates that Eddy increased the am ount of force that he used on her when he shoved her a second time . Tr. 8. This testimony could persuade a reasonable finder of fact that Eddy “was at least partially at fault for creating the situation giving rise to the affray * * *. ” Woodson, supra , at ¶ 82. See Chavez, supra , at ¶ 40. See also State v. Clemmons , 2d Dist. Montgomery No. 23237 , 2010

- Ohio

- 3109 , ¶ 43; State v. Garrison , 9th Dist. Summit No. 12676, 12746 , 1987 WL 8477, *1 ; State v. McElroy ,Case No. 1

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11th Dist. Trumbull Nos. 2002

- T

- 0115 and 2002

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- 0116, 2003

- Ohio

- 6762, ¶ 31. 1 Since the State only needs to carry the burden of persuasion on one element of self

defense, we need not consider the other elements of self

- defense in this analysis. {¶21} Accordingly , we find Edd y’s argu ment

— that the State “provided no evidence ” to disprove an element of self

- defense through non

- deadly force

— to be without merit. Appellant’s Brief, 9. Having examined the record, we conclude that the evidence presented in this case does not weigh heavily against the trial court’s determination that the State disproved at least one element of self

- defense. Thus, Eddy has failed to establish that his conviction is against the manifest weight of the evidence. His second assignment of error is overruled. F irst Assignment of Error {¶22} Eddy argues that the trial court incorrectly applied the legal standard for self

- defense through deadly force instead of the legal standard for self

- defense through non

- deadly force. Legal Standard {¶23} R.C. 2901.01(A)(2) defines “Dea dly Force” as “ any force that carries a substantial risk that it will proximately result in the death of any person. ” R.C. 2901.01(A)(2). See State v. Kucharski , 2d Dist. Montgomery No. 20815, 2005

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1 We are aware that Garrison and McElroy address the application of self

- defense through deadly force. Garrison , supra, at *1; McElroy , supra, at ¶ 29, 31. However, the first element for self

- defense through deadly force and the first element for self

- def ense through non

- deadly force are the same. Chavez, supra , at ¶ 39, 40. Both require that “the accused was not at fault in creating the situation giving rise to the affray * * *.” Id
. Thus, the examination of fault in these cases shapes our understandi ng of how fault should be analyzed where an argument for self

- defense is raised.Case No. 1

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Ohio

- 6541, ¶ 21 (“[T]he use of nondeadly force, by definition, presents no risk of loss of life * * *.”). Self

- defense through the use of deadly force is applicable as an affirmative defense where: (1) the accused was not at fault in creating the situation giving rise to the affray; (2) the accused had a bona fide belief that he or she was in imminent danger of death or great bodily harm and that the only means of escape from such danger was in the use of force; and (3) the accused must not have violated any duty t o retreat or to a void the danger. Chavez at ¶ 39, quoting State v. Thacker , 3d Dist. Marion No. 9

- 03

- 37, 2004

- Ohio

1047, ¶ 14. In contrast, self

- defense through the use of non

- deadly force is applicable as an affirmative defense where: (1) the accused w as not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the only means to protect himself from such danger was the use of forc e not likely to cause death or great bodily harm. Chavez at ¶ 40. See also State v. Jordan , 1st Dist. Hamilton No. C

- 210603 , 2022

- Ohio

- 2566, ¶ 56. Thus, “ there is no duty to retreat in cases involving non

- deadly force.” (Emphasis sic.) Id
. , citing St ate v. Brown , 2017

- Ohio

- 7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.)
. Legal Analysis {¶24} In this case, after the bench trial had concluded , the trial court analyzed S.P.’s testimony. The trial court noted that “he [Eddy] did not have to pick her [S.P.] up and slam her on the floor; that, “[w]hen he [Eddy] was on top of her, heCase No. 1

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could’ve let her up and walked away”; that “there were times when the defendant was in control of the situation and did not w alk away”; and that Eddy “knew that * * * at any point in time, he could walk away.” Tr. 47

- 48. Eddy argues that these statements indicate that the trial court believed that he had a duty to retreat in this case and that the trial court, therefore, incor rectly applied the legal standard for self

defense through deadly force in this case. {¶25} However, these identified statements , in fact, represent the application of the legal standard for self

- defense through non

- deadly force to the circumstances of this cas e . The contents of the Ohio Jury Instructions (“OJI”) show the connection of these statements to the first element of self

- d efense through non

- deadly force. Ohio Jury Instructions , CR Section 421.19 (Rev. Dec. 4, 2021). The OJI for self

defense through non - deadly force read s , in relevant part, as follow: 6. AT FAULT. The defendant did not act in (self - defense) (defense of his/her residence) if the state proved beyond a reasonable doubt that the defendant was at fault in creating the (situation) (incide nt) (argument) that resulted in the injury. The defendant was at fault if the defendant was the initial aggressor and (A ) (insert name of victim[s]) did not escalate the (situation) (incident) (argument) by being the first to use or attempt to use (non - d eadly force) (deadly force); (B) provoked (insert name of victim[s]) into using force; (C) did not withdraw from the (situation) (incident) (argument) ; * * *Case No. 1

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(Emphasis added.) Id
. In support of Section 6(C) of this instruction, OJI cites to the Ohio Su preme Court’s decision in State v. Melchior , which states the following: Even though the accused may in the first instance have intentionally brought on the difficulty and provoked the occasion, yet his right of self

- defense will revive and his actions will be held justifiable upon the ground of self - defense in all cases where he has withdrawn from the affray or difficulty in good faith as far as he possibly can, and clearly and fairly announced his desire for peace. State v. Melchior , 56 Ohio S t.2d 15, 21, 381 N.E.2d 195, 200 (1978), quoting 1 Wharton’s Criminal Law and Procedure 504

- 505, Section 232. See State v. Galluzzo , 2d Dist. Champaign No. 99CA25, 2001 WL 303212, *3 (Mar. 30, 2001); State v. Ferrell , 2020

- Ohio

- 6879, 165 N.E.3d 743, ¶ 28 (10th Dist.). 2 In the case presently before us, the trial court appears to have been examining this aspect of the first element for self

- defense through non

- deadly force. {¶26} Further, in several of the statements identified above , the trial court was also considering the extent to which the force used by Eddy was applied in self

defense. Under R.C. 2901.05(B)(2), “the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self

- defense.” R.C. 2901.05(B)(2). See D ublin v. Starr , 10th Dist. Franklin No. 2 1AP

- 173, 2022

- Ohio

2298, ¶ 38. T he State can carry the burden of disproving the third element of self

defense through non

- deadly force and by establishing that “the defendant used more

2 Melchior and Ferrell are cases that address self

- defense through deadly force. Melchior , supra, at 21; Ferrell , supra, at ¶ 25. However, as in the Ohio Jury Instructions in CR 421.19, Galluzzo applies the reasoning of Melchior in the context of self

- defense through non

- deadly force. Galluzzo, supra , at *1

- 3.Case No. 1

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force than was reasonably nec essary to defend against the imminent danger of bodily harm
. ” Jacinto, supra , at ¶ 46. State v. Jordan , 1st Dist. Hamilton No. C

210603, 2022

- Ohio

- 2566, ¶ 55; State v. Myers , 5th Dist. Ashland No. 21

- COA

- 025, 2022

- Ohio

- 33 37, ¶ 28; Ohio Jury Instructions CR Section 421.19 (Rev. Dec. 4, 2021). Thus, the considerations about the amount of force employed by Eddy are not irrelevant to the third element of a self

- defense through non

- deadly force analysis and are not an indication that the incorrec t legal standard was applied in this case
. {¶27} Finally , under the first assignment of error, we concluded that the State disproved the element that requires a defendant “not [to have ] be [en] at fault in creating the situation giving rise to the affray .” Chav ez, supra , at ¶ 39, 40. Because t he first element of s elf

- defense through deadly force and the first element of self

defense through non

- deadly force are identical , the application of either of these two legal standards would yield the exact same result u nder the facts of this particular
case. Id
. Accordingly, we find this argument to be unpersuasive and ultimately inconsequential. {¶28} In conclusion , the trial court nowhere indicated that it believed that the legal standard for self

- defense through deadly force was applicable or that Eddy had a duty to retreat in this case. The statements identified by Eddy , in fact, represent the application of the legal standard for self

- defense through non

- deadly force to the circumstances of this case . Having examined the record in its entirety, we find noCase No. 1

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indication that the trial court applied the incorrect legal standard for self

- defense in this case. Eddy’s first assignment of error is overruled. Conclusion {¶29} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Lima Municipal Court is affirmed. Judgment Affirmed ZIMMERMAN, P.J. and MILLER, J., concur. /hls