COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60736 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MATHEW B. HILL, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 16, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-253,647 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gregory T. Stralka The Dallas Building 2217 East Ninth Street Suite 100 Cleveland, Ohio 44115 -2- NAHRA, P.J.: Mathew Hill appeals his conviction of felonious assault. For the reasons set forth below, we reverse and remand. On January 10, 1989, Sharon Wallace and Aristo Smith were visiting Sharon's sister, Juanita Philpott. Mathew Hill was living with Juanita at the time. According to Sharon Wallace, Juanita made up the couch for Sharon and Aristo to stay the night. Sharon and Aristo were on the couch, and Juanita and Mathew were in their bedroom. An argument started between Juanita and Mathew. Juanita came out of the bedroom after Mathew hit her. Aristo Smith and Sharon Wallace testified that Juanita was bleeding. When Mathew Hill emerged from the bedroom a few minutes later, Sharon Wallace threw a bottle at him. Juanita testified that Sharon was hysterical. Juanita also stated that Aristo Smith grabbed Mathew Hill, but did not threaten him. Mathew then stabbed Aristo. Juanita, Sharon and Aristo agreed that Aristo and Mathew began fighting after Aristo had been stabbed. They struggled in and out of different rooms for 15 - 30 minutes. Juanita called police. The fight ended when Aristo pushed Mathew through a window. Mathew Hill told Detective Ron Vargo a different version of these events. Vargo testified that Hill told him that Sharon Wallace and Aristo Smith jumped on him and began beating him. During the struggle, Mathew Hill said he was pushed through a window and beaten with a large wooden salt shaker. He then reached up on the table, got hold of a knife, stabbed Aristo and -3- ran from the home. Patrolman Brian Betley testified that when he arrived at the scene, Aristo Smith was lying on the floor and struggling to breathe. Aristo Smith was taken by EMS to Mt. Sinai Medical Center where he was hospitalized for four days with a collapsed lung. Mathew Hill was charged with felonious assault including violence specifications. The court refused to charge on self-defense. The jury found Mathew Hill guilty, and Hill timely appealed. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE ISSUE OF SELF- DEFENSE. In a criminal case, when the defendant claims that he acted in self-defense, the court should instruct the jury on the issue of self-defense only if there is evidence relating to the claim of self-defense, which, if believed, would be legally sufficient to permit a reasonable doubt as to guilt. State v. Gideon (1977), 52 Ohio App. 2d 70, paragraph two of the syllabus. The elements of self-defense are: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has 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 such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. State v. Robbins (1976), 58 Ohio St. 2d 74, paragraph two of the syllabus. In this case, there was conflicting evidence as to how the fight started and when Aristo Smith was stabbed. Three witnesses -4- stated that appellant stabbed Aristo Smith before they started fighting. However, these witnesses also stated that Sharon Wallace was hysterical about Mathew Hill hitting her sister, and that she began the fight by throwing a bottle. There was also testimony that Sharon Wallace and Aristo Smith had threatened Mathew Hill on a prior, recent occasion, and that Smith threatened Hill when he walked up to him and grabbed him. Also, according to Detective Vargo, Hill did not stab Smith until they had struggled for a long time and Smith had pushed him through a window and beaten him with a large wooden salt shaker. This evidence is sufficient to warrant an instruction on self-defense. Appellant's first assignment of error is sustained. II. Appellant's second assignment of error reads as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE ISSUE OF NO DUTY TO RETREAT FROM ONE'S HOME. The issue of "no duty to retreat" relates to the third element of self-defense, which requires the slayer to not violate any duty to retreat or avoid the danger. State v. Robbins, see supra, paragraph two of the syllabus. An accused who was attacked in his home or business may be entitled to an instruction of no duty to retreat as part of the self-defense instruction. State v. Williford (May 19, 1988), Cuyahoga App. No. 54193, unreported; see also State v. Beach (1990), 60 Ohio App. 3d 229. Such an instruction is premised upon one's right to -5- repel invasion of one's home or business and to protect one's family or property. Williford, see supra; State v. Melchoir (1978), 56 Ohio St. 2d 15; Graham v. State (1918), 98 Ohio St. 77. However, the acts claimed to be in self-defense must have been necessary to repel the assailant or to prevent forcible entry. State v. Peacock (1883), 40 Ohio St. 333. In this case, the residence in question was that of Juanita Philpott. Mathew Hill was apparently living with Philpott at the time. Sharon Wallace and Aristo Smith were the invited guests of Juanita Philpott, and were upset about Hill hitting Philpott. Therefore, Mathew Hill's purported acts of self-defense were not intended to prevent their forcible entry or otherwise protect his home or family. Accordingly, he was not entitled to a "no duty to retreat" instruction. Appellant's second assignment of error is without merit. III. Appellant's third assignment of error reads as follows: THE APPELLANT/DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO PRESENT EVIDENCE AT TRIAL REGARDING SELF-DEFENSE AND NO DUTY TO RETREAT, AND ALSO WHEN DEFENSE COUNSEL DID NOT SEEK A JURY INSTRUCTION ON AGGRAVATED ASSAULT. In order to prove ineffective assistance of counsel, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. -6- State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, vacated as to the death penalty (1978), 438 U.S. 910. In State v. Hester (1976), 45 Ohio St. 2d 71, 79, the court stated that the test for establishing that counsel is ineffective is "whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done". The accused must overcome the presumption that a licensed attorney is presumed competent, and the presumption that the attorney's actions may constitute reasonable trial strategy. State v. Martin (1987), 37 Ohio App. 3d 213, 214. Appellant claims that his trial counsel denied him effective assistance by failing to present evidence regarding self-defense and no duty to retreat. Appellant fails to indicate what evidence of self-defense was available to defense counsel that was not produced. Appellant himself declined to take the stand. Defense counsel thoroughly cross-examined the other three witnesses regarding the elements of self-defense. Appellant also claims that his trial counsel was ineffective because he did not seek a jury instruction on aggravated assault, as an inferior degree of the indicted offense. A jury may consider inferior degrees of an indicted offense "when supported by the evidence at trial". State v. Deem (1988), 40 Ohio St. 3d 205, paragraph one of the syllabus. Aggravated assault is an inferior degree of felonious assault, since the elements of these offenses are identical except that aggravated -7- assault has the additional mitigating element of serious provocation. Id. at paragraph four of the syllabus. 4. . . . Thus, in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury. (R.C. 2945.74 and Crim. R. 31[C], construed and applied.) 5. Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. (State v. Mabry [1982], 5 Ohio App. 3d 13, 4 OBR 14, 449 N.E.2d 16, paragraph five of the syllabus, approved.) Id., paragraphs four and five of the syllabus. In this case, there is some evidence of provocation, but it is insufficient for reasonable minds to conclude that appellant was under extreme emotional stress sufficient to incite him to use deadly force. Since appellant has not demonstrated that his trial counsel substantially violated any of his duties to appellant, appellant's third assignment of error is overruled. IV. Appellant's fourth assignment of error reads as follows: -8- THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED APPELLANT'S RULE 29 MOTION AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus, the Ohio Supreme Court held as follows: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. R.C. 2903.11(A) sets forth the elements of felonious assault as follows: 2903.11 Felonious assault (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to 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) reads as follows: "Deadly weapon" means 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. R.C. 2901.01(E) reads in pertinent part as follows: (E) "Serious physical harm to persons" means any of the following: (1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; . . . In this case, reasonable minds could conclude that appellant knowingly caused serious physical harm to Aristo Smith. Three -9- witnesses testified that appellant stabbed the victim with a knife. Smith was subsequently hospitalized for four days with a collapsed lung. Reasonable minds could also conclude that appellant caused physical harm to Aristo Smith with a deadly weapon, i.e., the knife. Appellant's fourth assignment of error is overruled. Reversed and remanded for a new trial. -10- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .