In Re C.L. Adjudicated Delinquent Child

 

Case No. 11CA9

 

COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, ATHENS COUNTY

 

2011 Ohio 6892; 2011 Ohio App. LEXIS 5690

 

 

December 16, 2011, Released

 

COUNSEL: Timothy Young, Ohio State Public Defender and Sheryl A. Trzaska, Assistant State Public Defender, Columbus, Ohio, for Appellant.

 

James E. Schneider, Washington County Prosecutor, and Kevin A. Rings, Assistant Washington County Prosecutor, Marietta, Ohio, for Appellee.

 

JUDGES: Peter B. Abele, Judge. Roger L. Kline, Judge. Matthew W. McFarland, Judge. Abele, J., Kline, J. and McFarland, J.: Concur in Judgment and Opinion.

 

OPINION

 

DECISION AND JUDGMENT ENTRY

Per Curiam:

Appellant C.L. appeals his adjudication of delinquency in the Athens County Juvenile Court after the trial court found him guilty of negligent homicide, a first degree misdemeanor in violation of R.C. 2903.05. On appeal, C.L. raises two assignments of error, arguing 1) he proved self-defense; and 2) his conviction was against the manifest weight of the evidence and there was insufficient evidence to convict him. Having reviewed the record, we find the trial court’s decision finding C.L. did not prove self-defense was against the manifest weight of the evidence. Accordingly, we sustain C.L.’s second assignment of error and reverse the trial court’s judgment.

 

FACTS

Preliminarily, we note “[i]f an appellee fails to file an appellate  brief, App.R. 18(C) authorizes us to accept an appellant’s statement of facts and issues as correct, and then reverse a trial court’s judgment as long as the appellant’s brief reasonably appears to sustain such action. See Sprouse v. Miller, 4th Dist. No. 06CA37, 2007 Ohio 4397, at fn. 1. In other words, an appellate court may reverse a judgment based solely on a consideration of an appellant’s brief. See id., citing Helmeci v. Ohio Bur. of Motor Vehicles (1991), 75 Ohio App.3d 172, 174, 598 N.E.2d 1294; Ford Motor Credit Co. v. Potts (1986), 28 Ohio App.3d 93, 96, 28 Ohio B. 136, 502 N.E.2d 255; State v. Grimes (1984), 17 Ohio App.3d 71, 71-72, 17 Ohio B. 126, 477 N.E.2d 1219.” Greene v. Seal Twp. Bd. of Trustees, 4th Dist. No. 10CA812, 194 Ohio App. 3d 45, 2011 Ohio 1392, at ¶ 12, 954 N.E.2d 1216.

Here, the state failed to file a timely responsive brief. The state requested additional time to file its brief, and although this is a priority case, the Court granted said motion. The Court specifically warned the state, “BECAUSE THIS IS A PRIORITY APPEAL, NO FURTHER EXTENSIONS WILL BE GRANTED ABSENT EXTRAORDINARY CIRCUMSTANCES.” Despite this admonishment, the state filed its response after the extended deadline, rendering its brief untimely. Thus, we accept Appellant’s statement of facts as true.

On June 13, 2010, Scott and Shenandoah Walraven, both adults, hosted a party for numerous teens. The Walravens had supplied a keg of beer and there was other alcohol present, too. Most of the attendees were too young to legally consume alcohol, but were doing so nonetheless. C.L. attended the party and did not drink any alcohol, nor did his male friends.

Later that evening, C.L. and two of his friends were at their cars discussing leaving the party. Three unknown males approached the cars and began beating on the roof of one of the cars, demanding C.L. and his friends exit the car so they could fight. One of C.L.’s friends exited the driver’s door and began asking why there was going to be a fight. C.L. exited the passenger door to stand near his friend.

Once outside the car, C.L. and his friends recognized the male antagonists as Scott Walraven’s son, T.C., and LaMarr Wilder (“Wilder”). As C.L.’s friend was trying to explain he had no intention to fight, T.C. punched C.L.’s friend in the back of the head. Wilder punched C.L. in the temple, knocking him to the ground. The Walravens’ son punched C.L.’s second friend in the face, dazing him and possibly rendering him unconscious.

Once C.L. was on the ground, he rolled to his stomach, where Wilder began to pummel his head and neck. Wilder was 5′ 10″, nearly 240 pounds, a football player, and 19 years old. While C.L. was a few inches taller and 10 pounds heavier than Wilder, C.L. had never been in a fight before and was only 17. C.L. testified he tried to get up, but was only able to get onto his elbows. C.L.’s vision began to darken as Wilder continued pummeling his head, so C.L. reached into his pocket for his pocket knife. In addition to his waning consciousness, C.L. was unsure when Wilder would stop hitting him because Wilder had been drinking. C.L. also thought more than one person was holding him down or punching him because he could not get up.

C.L. unfolded his knife and thrust it in the general direction of Wilder. Wilder exclaimed C.L. was “trying to poke him,” but continued punching C.L. in the head. After several thrusts of the knife, Wilder ceased the beating and C.L. got up and ran to his truck.

As C.L. attempted to leave, Scott Walraven and his son assaulted C.L. in his truck. Scott Walraven grabbed C.L.’s shirt and punched him in the face several times. C.L. tried to kick him away, to no avail. Finally, Scott Walraven released C.L., who immediately started his truck and drove home.

In the aftermath, Wilder had made his way to the garage and collapsed. Several of C.L.’s swipes with the knife connected with Wilder’s legs. One of them had cut Wilder’s femoral artery, which proved fatal.

Washington County Deputy Sheriff Brian Lockhart (“Dep. Lockhart”) interviewed C.L. early the next morning. Dep. Lockhart observed bruises on C.L., scrapes on his hands and fingers consistent with being on the ground, and swelling of CL.’s head. Dep. Lockhart listened to C.L.’s version of the events, which matched his later in-court testimony.

Several days later, C.L. was continuing to have dizzy spells and visited a doctor. C.L. learned he had suffered a concussion.

The state charged C.L. with negligent homicide in violation of R.C. 2903.05. C.L. proceeded with a trial to the court. The attorneys and the trial court agreed the facts were uncontested. C.L. never disputed his actions resulted in Wilder’s death. The outcome was to turn upon whether C.L. had proven self-defense.

The trial court acknowledged C.L. was not at fault in creating the situation that led to Wilder’s death. Wilder had thrown the first punch. (Decision at 6.) The trial court, however, took issue with C.L.’s failure to fight back. Despite C.L.’s testimony to the contrary, and no conflicting testimony on the point, the trial court found C.L. did not try to get up while Wilder beat him. (Decision at¶ 21.)

The trial court was also troubled by C.L. using a knife when Wilder was using only his fists. “At no time did [C.L.] attempt to get up, or even fight back with his arms and fists.” (Decision at 9.) “The use of the knife by [C.L.] was so grossly disproportionate to the perceived threat and was not warranted under the circumstances*** He was not in imminent danger of death or great bodily harm such that the use of the knife was his only means of escape.” (Id.)

Thus, the trial court found C.L. had not proven self-defense and adjudged him a delinquent child. C.L. now appeals.

 

ASSIGNMENTS OF ERROR

 

 

I. “[C.L.] proved by a preponderance of the evidence that he acted in self-defense; therefore, the juvenile court erred when it adjudicated him delinquent of negligent homicide.”

II. “[C.L.’s] adjudication of negligent homicide was supported by insufficient evidence, and is against the manifest weight of the evidence.”

 

 

Although C.L. lists two assignments of error, they are intertwined. First, C.L. does not address the applicable standard of review for the first assignment of error. Second, C.L. makes two separate arguments in his second assignment of error. Overall, he argues the state presented insufficient evidence to convict him of negligent homicide and the trial court’s judgment, convicting him because he did not establish self-defense, was against the manifest weight of the evidence. Thus, we consider Appellant’s assignments of error together.

 

Standard of Review

“When an appellate court concludes that the weight of the evidence supports a defendant’s conviction, this conclusion necessarily includes a finding that sufficient evidence supports the conviction. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency. Therefore, we first consider whether [Appellant’s] conviction [is] against the manifest weight of the evidence.” (Internal quotations, citations, and footnote omitted.) State v. Leslie, 4th Dist. Nos. 10CA17, 10CA18, 2011 Ohio 2727, at ¶ 15. See, also, State v. Bostwick, 4th Dist. No. 10CA3382, 2011 Ohio 3671, at ¶ 10.

“In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed.” State v. Brown, 4th Dist. No. 09CA3, 2009 Ohio 5390, at ¶ 24, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 1997 Ohio 52, 678 N.E.2d 541. A reviewing court “may not reverse a conviction when there is substantial evidence upon which the [trier of fact] could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58 Ohio St.3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, at paragraph two of the syllabus.

We must still remember that the weight to be given evidence and the credibility to be afforded testimony are issues to be determined by the trier of fact. State v. Frazier (1995), 73 Ohio St.3d 323, 339, 1995 Ohio 235, 652 N.E.2d 1000, citing State v. Grant (1993), 67 Ohio St.3d 465, 477, 1993 Ohio 171, 620 N.E.2d 50. The trier of fact “is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 Ohio B. 408, 461 N.E.2d 1273.

 

Legal Analysis

R.C. 2903.05(A) provides, “No person shall negligently cause the death of another * * * by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.” R.C. 2923.11(A) defines “deadly weapon” as “any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”

However,  even if the state had proven the elements of negligent homicide, Appellant could not be convicted if he had demonstrated he acted in self-defense. “Self-defense is an affirmative defense that requires a defendant to prove three elements by a preponderance of the evidence: ‘(1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger.'” State v. Goff, 128 Ohio St.3d 169, 2010 Ohio 6317, 942 N.E.2d 1075, at ¶ 36, quoting State v. Thomas (1997), 77 Ohio St.3d 323, 326, 1997 Ohio 269, 673 N.E.2d 1339 and citing R.C. 2901.05.

“[T]he second element of self-defense is a combined subjective and objective test.” Thomas at 330. The person’s belief must be objectively reasonable under the circumstances and he must subjectively believe he needed to resort to force to defend himself. Thomas at 330-331. Regarding the subjective component, “[a] nervous, timid, easily frightened individual is not measured by the same standard that a stronger, calmer, and braver man might be.” (Internal quotations omitted.) State v. Cope (1946), 78 Ohio App. 429, 438, 46 Ohio Law Abs. 528, 67 N.E.2d 912, quoting Nelson v. State (1932), 42 Ohio App. 252, 12 Ohio Law Abs. 215, 181 N.E. 448, citing State v. Sheets (1926), 115 Ohio St. 308, 4 Ohio Law Abs. 394, 152 N.E. 664, 24 Ohio L. Rep. 480.

Moreover, we have stated “[a] defendant is privileged to use only that force that is reasonably necessary to repel the attack.” State v. Hendrickson, 4th Dist. No. 08CA12, 2009 Ohio 4416, at ¶ 23, citing State v. Williford (1990), 49 Ohio St.3d 247, 249, 551 NE.2d 1279, citing State v. McLeod (1948), 82 Ohio App. 155, 157, 50 Ohio Law Abs. 475, 80 NE.2d 699. That is, a person cannot continue to use force against the original aggressor once the imminent danger of death or serious bodily injury dissipates; the defender cannot become the aggressor. In Hendrickson, the defendant was stabbed by his ex-girlfriend, but he then disarmed her and stabbed her 14 times in the neck, heart, lung, abdomen, hip, and shoulder. The ex-girlfriend also had defensive wounds, indicating once the defendant had disarmed her, he became the aggressor and was not acting in self-defense when he killed her. Thus, he was not entitled to claim self-defense.

Finally, “[t]he elements of self-defense are cumulative, and if defendant fails to prove any one of the elements by a preponderance of the evidence, he fails to demonstrate that he acted in self-defense.” (Emphasis in original.) Hendrickson at ¶ 23, citing State v. Cassano, 96 Ohio St.3d 94, 2002 Ohio 3751, 772 NE.2d 81, ¶ 72, citing State v. Jackson (1986), 22 Ohio St.3d 281, 284, 22 Ohio B. 452, 490 NE.2d 893.

Here, we find C.L. proved the elements of self-defense by a preponderance of the evidence. First, the trial court explicitly found C.L. was not at fault in creating the violent situation, as Wilder threw the first punch.

Second, C.L. possessed a bona fide (good faith) belief he was in imminent danger of death or great bodily harm and his only means of escape was the use of force. Subjectively, C.L. testified he was scared and panicked because he had never been in a fight before. C.L. also testified his consciousness was waning and his vision was starting to go dark. C.L. testified he tried to get up, but was only able to get onto his elbows, as Wilder was continually pummeling his head. Further, C.L. knew Wilder had been drinking that evening and given the way Wilder was attacking him, C.L. was unsure Wilder would stop hitting him. Thus, C.L. had an honest, bona fide belief he was in imminent danger of death or serious bodily injury.

Objectively, the situation was more serious than the trial court acknowledged. Wilder, an intoxicated 240-pound football player, was beating C.L. in the head repeatedly.  A blow to a person’s head can be fatal, even if the attacker only uses his fists. See State v. Smith, 4th Dist. No. 06CA2893, 2007 Ohio 1884 (affirming convictions for felonious assault and involuntary manslaughter when defendant landed a single closed-fist blow to the victim’s head); State v. Brown, 10th Dist. No. 03AP-130, 2004 Ohio 2990, at ¶ 87-88 (affirming conviction for attempted murder where defendant repeatedly struck the victim with his fists). Regardless of C.L.’s size, he was at a disadvantage when he was blind-sided and knocked to the ground, followed by a blitzkrieg of blows to his head. It is not objectively unreasonable to foresee serious injury, or even death, in this particular scenario.

Concerning C.L.’s use of force, he testified he tried to get up and he tried to defend himself, to no avail. While the trial court stated C.L. made no attempt to extricate himself from the situation, the evidence demonstrates the opposite. The trial court cannot fault C.L. for not attempting to fight back with his fists when the testimony revealed C.L. had never been in a fight — he did not know how to intelligently fight back — and C.L. testified he tried to escape. The law does not require one who is in fear of death or serious bodily harm to attempt to use non-deadly force first, wasting precious seconds and further imperiling himself. Thus, C.L.’s fear of death or serious bodily injury was objectively and subjectively reasonable.

Third, C.L. did not violate any duty to retreat or avoid the danger. C.L. did not instigate the fight. He did everything in his power to leave. Once Wilder stopped hitting him, C.L. immediately ran to his truck to leave. Even after receiving a second beating from Scott Walraven, C.L.’s first action was to drive away.

Finally, C.L.’s use of force was not grossly disproportionate to the force Wilder used. As explained above, C.L. did not use more force than was necessary to repel the attack. C.L.’s use of the knife was congruent with Wilder’s attack: once the beating ceased, the use of the knife ceased. C.L. never became the aggressor. Compare Hendrickson, supra.

Again, the trial court was obviously troubled by C.L. introducing a knife into a fistfight. But this was not an orderly fight where the Queensberry Rules applied, the participants greeted each other beforehand, squared up to each other and fought a clean fight. Wilder ambushed C.L. with an unseen punch and knocked him to the ground. Wilder then kept C.L. on the ground as he beat C.L.’s head.

“[T]he law of self-defense does not distinguish between the weapons used to defend oneself but only between deadly force and non-deadly force. Provided that a person is justified in using deadly force, the defender’s choice of weapon is largely irrelevant, be it a gun or the defender’s fists. We therefore interpret the trial court’s statements objecting to [C.L.’s] use of a [knife] as denying him the right to use deadly force.” State v. Miller, 149 Ohio App.3d 782, 2002 Ohio 5812, 778 N.E.2d 1103, at ¶ 6.

Other jurisdictions have reached similar results in similar situations. A bankruptcy court in Wisconsin, when determining whether a defendant’s debt for the death of another was dischargeable, found the teen had acted in self-defense. In re Mathews (E.D. Wis., 2010), 433 B.R. 732. Even though the defendant had driven to a party to fight another student, the court analyzed the defendant’s actions at the time of the altercation. The defendant’s friends had abandoned him, leaving him in the middle of a crowd of drunken teenagers who were yelling for the two combatants to fight. The other teenager was making intimidating gestures and then pushed the defendant. “[S]urrounded by a large[,] hostile crowd of drunken teenagers from a rival high school, having been taunted and pushed, and hearing the crowd incite [the decedent] to hit him, the Court finds that a 16-year old would reasonably believe that his life was in danger or that he would suffer grave bodily harm if he did not strike. That he struck only one blow is evidence of the reasonableness of the response.” Id. at 737. Unfortunately, the defendant’s single blow to the teen’s head proved fatal.

Likewise, the Court of Appeals of Minnesota reversed the assault convictions of a 15-year-old girl who had stabbed two persons after a mob of teenagers rushed the defendant and started hitting and kicking her. In re K.M.M.N. (Minn., Mar. 16, 2004), No. A03-759, 2004 Minn. App. LEXIS 244. A group of teenagers had assaulted the defendant the two previous days, which prompted her to bring a knife to the skating rink on the night in question. Although the appellate court described the defendant’s decisions to go to a place where she was likely to be assaulted, to bring a weapon, and to fail to inform security there may be an altercation as “irresponsible and defy adult common sense,” they did not negate her claim of self-defense. The defendant was in serious danger when a mob of teenagers began assaulting her and her response to wildly lash out with the knife was a reasonable response to such peril.

Thus, we find C.L. proved self-defense by a preponderance of the evidence and the trial court’s decision was against the manifest weight of the evidence. Accordingly, we sustain C.L.’s second assignment of error and reverse the trial court’s judgment. C.L. is ordered discharged.

JUDGMENT REVERSED.

 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED and that the Appellant recover of Appellee costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Exceptions.

Abele, J., Kline, J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court,

BY: Peter B. Abele, Judge

BY: Roger L. Kline, Judge

BY: Matthew W. McFarland, Judge

 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.