COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66669 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DEENA WILLIAMS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-278592. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Dominic DelBalso Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Patricia J. Smith Assistant Public Defender The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Deena Williams appeals from her conviction for voluntary manslaughter, in violation of R.C. 2903.03, with a firearm specification. The appellant was sentenced to a term of incarceration of three years for the gun specification to be served prior to and consecutive with a term of incarceration of five to twenty-five years for voluntary manslaughter. It is undisputed that the appellant suffered from the Battered Woman's Syndrome, and that on February 13, 1992, she shot and killed the man who had been beating her for several years, Emillios Andre Green. At trial, Dr. Heather Raaf, a deputy coroner for the Cuyahoga County Coroner's Office, testified that the victim was 28 years old, that he was 73 inches tall, and weighed 255 pounds. Green died from a gunshot wound to the mouth, the bullet travelled from front to back, downwards, and slightly towards the left. The bullet entered the mouth at the lower lip, and travelled to the base of the neck. Dr. Raaf testified that the mouth was probably open at the time the shot was fired; that there was no fouling or stippling; and that marijuana was present in his blood and urine at the time of death. Cleveland Police Officer Calvin Lewis testified that he responded to a radio assignment at 6903 Lawnview Avenue, Cleveland, Ohio. Officer Lewis and his partner Officer Leon Goodlow received two dispatches, the first concerning a woman holding a man at gunpoint, and the second advising them that the woman has shot the - 3 - male. From the time of the first call to the time of their arrival at the residence was approximately three minutes. The officers noted three vehicles at the residence, a yellow Cadillac which was running, a black and white Blazer, and a Chevrolet station wagon. The first person they saw was the appellant's brother, Henry Williams. He was running from the house to the Blazer with a shoe box in his hands. As they entered the house, they encountered the appellant who asked for the EMS team. She was a little hysterical, and may have been crying. They observed the victim in the kitchen area in a pool of blood, lying with his knees drawn up to his chest. The weapon, a .38 caliber revolver, was laying on the dining room floor. Officer Lewis also testified that he saw several trash bags on the porch of the house which contained clothing belonging to the appellant. The appellant was taken to the hospital approximately an hour after they arrived. Since the appellant had informed them she was struck in the face, the officers looked, but failed to find any marks on the appellant's face. There were no bruises, or swelling. Cleveland Police Officer Darrell Cornell testified that he also responded to both of the radio broadcasts. In his search of the house, he located marijuana, cocaine, and a total of $6,756 in cash. This total includes the $3,000 found in the shoe box in the Blazer. The cars present at the home were titled to the appellant. - 4 - Henry Williams, the appellant's brother, testified that his sister and the victim were involved in a relationship; that he witnessed the victim strike his sister, and that she would strike him back; that he never physically tried to break up their fights; that upon occasion he would verbally try to interfere; that Green used to slap, punch, and kick his sister; and that he remained friends with Green in spite of the abuse. He testified that he lived with them in the residence on Lawnview; and that Green sold drugs to earn income. Williams stated that there were times when the appellant would leave Green, and that during those times she would stay with their mother, one of their sisters, or a friend. He testified that his sister always came back to Green. On the morning of the shooting, Williams awoke to the sound of the appellant and Green arguing. He was sleeping in the living room, on the couch. Green was punching his sister; he threw her to the ground, threw her against the night stand, slung her against the wall, and was dragging her (T. 122). Green grabbed her by the feet and swung her around (T. 139); much of the furniture was broken. Green did not want the appellant to leave. His sister called 911, and at this time his sister did not have the gun. They were fighting all through the house, but he did not hear what they were saying. He did not want to interfere as Green would probably have tried to hit him. The argument stopped for a minute and his sister called 911 for the second time. The fighting ceased for a time, and she was packing her and her daughter's clothing. When - 5 - she called 911 the second time, she asked them to please come because she was being beaten, and because she had the gun. She was on the telephone, Green was in the bathroom, and he was in his bedroom. He heard his sister and Green still arguing, and then she told Green to get on his knees. Green responded, "you want me to beg in front to Saconno" (Henry Williams). He then heard, but did not see, the shot. He looked out of his room as soon as he heard the shot, and then ran into the living room. Williams testified that Green never did get on his knees, because as he ran out of his room, Green was on his feet and falling to the floor. His sister called the police for help. The gun dropped to the floor. Green asked Williams for help, but he did not render assistance, fearing to further injure the victim. Williams denied placing the shoe box in the Blazer. Williams testified that he told the police that the shooting was a mistake, and that his sister did not mean to do it (T. 134). Williams also testified that he did not interfere because "He [Green] was much too big for me and my sister put together" (T. 138). Green was a violent person, and his sister was afraid of Green. Cleveland Police Officer Leo Allen testified that he responded to an address on Lawnview at approximately 10:47 a.m. on February 13, 1992. Both Deena and Henry Williams were present. He took charge of the weapon and conveyed the appellant to headquarters. Henry Williams was also transported to headquarters, and his statement was taken by Officer Norman Sherwood. At some point, the - 6 - appellant was taken to the hospital prior to being transported to headquarters. There was no time in which the appellant was out of police custody. Officer Allen identified the photographs taken at the scene, and identified photographs of the appellant. These photographs were entered into evidence and depicted the injuries inflicted upon the appellant by the deceased. Officer Allen took the appellant's statement. She was advised of her Constitutional rights, and chose to make a statement. The appellant made no changes in the statement after it was prepared. In addition, Officer Allen retrieved a copy of the tapes of the 911 telephone calls made by the appellant from the communications control center of the police headquarters. The first 911 call was received at 10:21 a.m., and lasted approximately 7 minutes; the second call was received at 10:29 a.m. Officer Allen sent the tape of these calls to the Federal Bureau of Investigation in Washington, D.C., so that the tapes could be enhanced, made more discernable, clearer, and more easily understood. Defense counsel stipulated that the bullet taken from the body was fired from the .38 caliber gun retrieved at the scene, the weight of the trigger pull, and the fact that the gun was operable. The appellant took the stand on her own behalf. She testified that she has three sisters and one brother; one sister is older, and she was married and living overseas; that when she was 11 her mother was sent to prison for writing bad checks; that her mother was a drug addict; that she and her siblings lived with her - 7 - mother's boyfriend; that while living with this man she was responsible for the care of her siblings; that he sexually abused her; that she became pregnant when she was 12 by her 17 year-old boyfriend; that she dropped out of school in the 9th grade; and that she worked as a cashier at McDonald's for a few months. Prior to her involvement with Green, the appellant was involved in a two-year abusive relationship with Terry Newborn. Newborn beat her; he punched, slapped, kicked, choked and strangled her. There were occasions when she would leave him and move back in with her mother, but she would return because they loved each other. There were times when he would find her and physically "snatch" her back, and force her to live with him (T. 265). The appellant testified as to one instance when Newborn found her at a store, was angered because she was spending her own social security money. He stripped off her clothing and forced her to walk home naked. When they arrived home, he dead-bolted the door, punched her, hit her, forced her on her knees and tied her hands behind her back, and then strangled her. He beat her so badly that when she regained consciousness he was giving her mouth to mouth resuscitation. The police intervened and he was arrested. Her relationship with Newborn ended in December, 1987. Four months later she began her relationship with Green. When she first met Green he was nice, he was attending school, and he played basketball. He took care of her and her daughter. A month after they began living together he began abusing her. They - 8 - stopped going out as a couple, and he began to expect her to stay home and just clean and cook. The appellant testified to repeated beatings, and that afterwards he would be contrite, apologize, and tell her it would never happen again. She believed him. She was able to tell when the beatings were coming by the look on his face (T. 218). There were times when she left him, and moved in with either her mother or a friend, but she would always go back. She testified that she loved him, and that she was scared of him (T. 271). He would send people to talk to her on his behalf. The appellant testified that although she had never used drugs prior to her relationship with Green, that she began using marijuana laced with crack while living with him. They ceased using drugs because every time they used drugs he would beat her. Green would not permit the appellant to go out with friends. She testified that whenever she tried to ward off his blows, things would become more violent. Whenever she stood up for herself, or said something he did not like, he would beat her more. The appellant testified to an incident when she had been out with Ms. Perry for the evening. Green was waiting for her outside of the bar; he chased her and threw rocks at her. When he finally caught her he punched and kicked her. A man told him to stop, but did not intervene. Green kept beating her (T. 223). She also testified that when Ms. Perry lived in the apartment above she and Green, that she would pound on the ceiling to signal Ms. Perry that she was in trouble. - 9 - After one beating, the appellant telephoned the police, and Green was eventually arrested for carrying a concealed weapon. She later refused to press charges. She loved Green and was afraid of him. The appellant testified to an incident where she was holding her brother's ten-month-old child, and Green began to beat her. After this incident she left Green. Even though Green tried to stop her, she gathered what clothing she could and left in her station wagon. She went to the home of Toya Bradley and stayed for a week or two. The appellant returned to Green for three days. She returned because he said he would never hit her again. While she was staying with Ms. Bradley, he sent people to speak to her on his behalf. She would see Green on the street selling drugs in front of her mother's apartment building. He would come to her mother's apartment and speak to her through the door, telling her how much he loved her. She agreed to return for three days, but never intended to move back in with Green permanently. She still had clothing at his house. Her stay there was fine until she began to leave. At 8:00 a.m. the third morning she took her daughter to school. She went to Bradley's home and showered, and went back to Green's home to gather the rest of her belongings. She testified: A. Yes. So after he asked me where the fuck have I been and I asked him if you can't ask me - 10 - no better than that then don't ask me. So he walked into the bathroom, came out of the bathroom. I was still in the dining room transporting my clothes from the dining room onto the side porch, and he asked me, is that the way you gon' play me. Is that the way you gon' play me. And I asked him, what do you mean by is that the way I'm gon' play you. He said, oh, you think I'm a sucker, you think I'm a sucker. I said, no, I don't think you no sucker. I never called him a sucker. He did not like the word sucker. So I think maybe I did get smart with him and he punched me in the face. Q. When you say you think you got smart with him -- A. Um-hum. Q. -- what did you do to get smart with him? A. I think I probably raised my voice at him. Q. Okay. A. That I had never did to him. Q. Okay. And then what did he do? A. He punched me in my face. Q. Okay. And what else? A. And then after that I tried to hit him back. That didn't make things no better, he struck me, again. He knocked me down, he picked me up by the end of my foot, my feet. He swung me into the door. He hit my head up against the book case, broke the book stand, continued to strike me, got on top of me. He punched me. He just kept punching me. He kicked me, stomped me. At that time when he was trying to punch me I bit his finger. His hand had went into my mouth, I had bit his finger and that made him very mad. He struck me, again. Then after that I tried to run - 11 - outside, which was on the side door. I tried to run outside. He grabbed me back in by my shirt. I feel (sic) down. He -- (T. 240, 241). During this altercation, her brother was telling Green to "chill," and to leave her alone. The beating stopped and she tried to get away, but could not find her car keys. Her keys and her driver's license had been in her shirt pocket, but Green had ripped her shirt, and they were no longer in her pocket. She searched everywhere, but could not find them. Green had gone to the bathroom, and she went into his bedroom to continue the search for her keys. The gun was on the bed. She picked up the gun, went into the dining room, and called 911. Green came out of the bathroom while she was on the telephone. The gun was at her side until he began walking towards her. She pointed the gun at him and told him to stay back, that she was calling the police. He looked at her and said, "bitch, you ain't gon' shoot me." (T. 245.) She told him to get on his knees, but he did not. She never hung up the telephone; it was on the dining room table. After the phone call ended she walked towards the kitchen, but never entered it. She asked him why he had beaten her, what had she done to deserve that kind of treatment. He asked her what she wanted him to do, beg in front of her brother? He looked at her - 12 - like he was going to kill her (T. 247). She described the scene as follows: A. Yes. He was walking towards me. My hands was down. We had calmed down. My hand was down on my side, by my side and we were calm. I continued -- I was going to turn to the left to go into my daughter's room to finish gathering up her clothes. As I was getting ready to turn I saw him coming towards me. I heard his foot -- his tennis shoe mark scrap (sic) up against our kitchen floor, our tile floor, and that's when my reaction looked and saw him coming at me with that expression on his face, like he was going to grab me or kill me, just grab me. And I turned around -- and all this time the trigger was pulled -- I turned around and just did like that (so indicated) and the gun went off. I mean, my finger hit the trigger. Q. Now you're not saying that the gun just went off, you pulled the trigger, didn't you? A. Yes. (T. 247, 248). After the police arrived, she was taken to St. Vincent Charity Hospital and then to the police station. The photographs of her battered face were admitted into evidence. On cross-examination, the appellant testified that while Green was in the bathroom, she obtained the gun, but did not leave the house. Instead she called 911 (T. 287). The appellant testified that she did not want to accomplish anything by shooting. She was scared for her life, and did not mean to shoot. The appellant stated that while she was on the telephone with the police she was screaming, hollering and swearing. She told the police she wanted to shoot Green because she was angry and because - 13 - Green had smacked her (T. 292). She was angry and scared. She never meant to hurt him, she just did not want to be beaten anymore (T. 293). The appellant presented the testimony of Dr. Cynthia Carter, who had examined the appellant on behalf of the Court Psychiatric Clinic to determine her competency to stand trial. Dr. Carter determined that the appellant was competent to stand trial, but that the appellant had symptoms consistent with the Battered Women Syndrome. The doctor explained that the Battered Woman Syndrome is a syndrome of psychological and physical abuse. The physical abuse is severe and deliberate, the psychological abuse is not typically observable, but removes control from the battered woman. The batterer insists that the victim remain in his control, and frequently the victim is not permitted to go outside, and have to account for their whereabouts at all times. It is common for the victim to be financially dependent on the batterer. The physical abuse in the Battered Woman Syndrome is cyclical in nature. The initial phase is the attention phase where the victim knows the abuse is about to occur. The batterer may look a certain way or do a certain thing that the victim knows typically results in violence. The victim will try to calm the batterer, placate him to avoid the outburst. If that is not possible, she will try to manipulate the situation to minimize the injuries. The second phase is the acute battering where the victim has no choice but to accept the violence. - 14 - The last phase is the calming down phase. The batterer realizes he has abused someone he loves, and becomes very apologetic, and promises he will never do it again. This final phase is the reason women stay in the abusive relationship. The victim is told how wonderful and beautiful she is, and it increases self-esteem. This is the reward for staying. The victim derives self-esteem because it makes her feel stronger than other people, in that she can tolerate the battering. The typical batterer believes that his mate is his property, that she is there to bolster him, to meet his needs, and that it has to be done in such a way that his needs are met without him having to ask. The victim is constantly trying to keep him calm and happy. Oftentimes, the women leave physically, but the batterer still has psychological control. It is unusual for a battered woman to really feel free of the batterer, even after a divorce. Dr. Cater testified that the appellant is indeed a battered woman. The doctor stated that the sexual and psychological abuse the appellant suffered as a child would lead the appellant to seek protection as an adult. The appellant was very susceptible to flattery, and someone being jealous and possessive would make her feel protected. Although the appellant had physically left Green, she had agreed to go back for three days. This demonstrates that he still maintained the psychological control. - 15 - The doctor testified that the typical batterer would not be afraid when faced by his victim holding a weapon. The whole psychological construction of the relationship is that the batterer is in control, and there would be no reason to fear the loss of control. The victim's relinquishment of control is what makes the psychosis perpetuate. Dr. Carter testified that at the time of the shooting, the appellant had received the most severe beating ever from Green. In addition, the appellant believed that she could return to Green for three days, and then leave when the three days were over. This irrational expectation reflects her level of hope in the midst of the relationship. Green did not keep his end of the bargain. He beat her, he kicked her in the back, and threw her against the wall. The appellant became afraid for her life and angry. She picked up the gun to keep Green away from her. She asked Green to get on his knees so that she would be able to look him in the eye since he was considerably taller than the appellant. There is little doubt that the appellant was angry, and that she felt betrayed, and that she knew she was in danger. Dr. Carter testified that the appellant would only use the gun if Green came at her. Since the appellant had received the most severe beating of the relationship, her fear would be compounded by the fact that this was the first time she pulled a gun on Green, and by the fact that she was on the telephone with the police. As this behavior - 16 - had never been demonstrated by her before, she would expect Green to become more enraged. The appellant had asserted control in a way that was not permitted. In addition to all of this, since Green was involved with illegal activities, her telephone call to the police would jeopardize his freedom. Dr. Carter testified that based upon what the appellant told her about the events of the day of the shooting, and her relationship with Green, her opinion is that the appellant felt that if she did not shoot Green he would beat her further, which would result in serious injury and potentially death. Dr. Carter stated that after the shooting, the appellant stated that she felt awful, that she had not intended to kill Green, but merely to keep him away from her. She could not believe she had shot him. On cross-examination, Dr. Carter stated that some of the reasons women stay in abusive relationships were not present for the appellant, she and Green were not married, they had no children, and the appellant had places to stay if she decided to leave. Green had never threatened to harm the appellant's child. Three of the appellant's friends testified to corroborate her testimony. Toya Bradley testified that she has known the appellant since 1987. The appellant was residing in Garden Valley Apartments, at East 78th Street and Kinsman. Ms. Bradley testified that the appellant never went out, because Green would not permit it; that the appellant was a good housekeeper; that the appellant was a close friend; that she was afraid of Green; and that she - 17 - witnessed the appellant being beaten by Green. Bradley testified as to an incident when she and the appellant were going to her house, and that Green did not want the appellant to go out for the evening. Green grabbed the appellant, and bent her backwards over a fence. Bradley distracted Green, and they both managed to get away. He then followed them, and they hid behind a tree so that he would not see them. Ms. Bradley testified that the appellant left Green on two occasions and moved in with her. Green would try to talk Bradley into bringing the appellant back to him. She refused, because Green would only begin beating the appellant again. The appellant was scared of Green. Another friend of the appellant's, Glenda Perry, testified. Ms. Perry stated that she met the appellant in 1988, when the appellant and Green lived in the apartment below hers. The appellant would hit the ceiling of her apartment to signal to Ms. Perry that she was in trouble. Once, at Thanksgiving in 1989, Green was angry with the appellant because she did not want to make a sandwich. The appellant hit the ceiling and Ms. Perry went downstairs to see if everything was alright. Green would not let her in. The appellant managed to open the door, but he snatched her back by her hair; he choked the appellant and slapped her. Green slammed the door, so she went back to her apartment. A few minutes later, the appellant arrived with bleeding lips and a badly bruised eye. The appellant wanted to return to get her daughter - 18 - out of the apartment with Green. She saw the appellant's injuries on many other occasions. In the summer of 1990, she again witnessed Green beating the appellant. Perry and the appellant were to have an evening out. They only went out this one time because Green would not allow the appellant to go out. When they left the bar, Green was seated in his car, parked in front of the bar. The appellant went up to the car to speak to Green. He reached out and slapped her; they both ran. Green caught them and punched the appellant so hard it lifted her up off of the ground. He also picked her up and threw her on the ground and kicked her. Georganne Berry testified for the appellant. Ms. Berry and the appellant's brother, Henry Williams, have a child. Ms. Berry has known the appellant for five years. Ms. Berry testified to an incident where the appellant was holding the child, and Green began to strike the appellant with his fist. After she rescued her child, Green continued to strike the appellant. During its deliberation, the jury submitted two questions to the court. The jury inquired: If the jury answer is no to any of the elements of self-defense, does that mean that the defendant was not justified in using self- defense? The court responded by re-reading the jury instruction on self-defense (T. 481-483). The jury also inquired: Under self-defense #3 would the creation of a situation be on Mr. Green for the beatings - 19 - or would it be on Miss Williams for holding the gun and not fleeing immediately? The court responded that this was a question of fact to be determined by the jury's collective interpretation of the evidence (T. 483). The appellant sets forth only one assignment of error: THE VERDICT FINDING DEENA WILLIAMS GUILTY OF VOLUNTARY MANSLAUGHTER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE DEFENSE PROVED SELF DEFENSE BY A PREPONDERANCE OF THE EVIDENCE. Voluntary manslaughter is defined at R.C. 2903.03 as follows: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. The appellant asserts that the jury's conviction was against the manifest weight of the evidence presented at trial. This court, in State v. Davis (1988), 49 Ohio App.3d 109, held: 3. In determining whether the verdict is against the manifest weight of the evidence 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The appellant's assignment of error is overruled. See also State v. Jenks (1991), 61 Ohio St.3d 259, 273. - 20 - Given the jury instructions by the court, and the responses to the jury's questions, reasonable minds could have reached the same conclusion reached by the jury. The appellant's stated assignment of error is not well taken. However, it must be concluded that the trial court committed plain error in failing to instruct the jury that the appellant had no duty to retreat in her own home. This court reached a similar result in State v. Reed (June 9, 1994), Cuyahoga App. No. 65109, unreported. In Reed, this court found that the failure to properly instruct the jury on the duty to retreat when both combatants live in the same abode is not harmless error where there is testimony that the defendant did not initiate the argument; that the appellant was in fear of great bodily harm from the deceased; and where there was some evidence that the appellant tried to retreat. Such testimony is clearly present here. Crim.R. 52(B) permits an appellate court to review an error if it affects the substantial rights of a defendant, even though the error was not brought to the attention of the trial court. In State v. Cooperrider (1983), 4 Ohio St.3d 226, the court determined that: [A]n erroneous jury instruction "does not constitute a plain error or defect under Crim.R.52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 97 [7 O.O.3d 178]. Additionally, the plain error rule is to be applied with utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice. - 21 - In the case sub judice, the trial court failed to instruct the jury that the appellant had no duty to retreat. The Supreme Court, in State v. Williford (1990), 49 Ohio St.3d 247, at syllabus 2, set forth the law of Ohio: There is no duty to retreat from one's own home. (State v. Peacock [1883], 40 Ohio St. 333, approved and followed.) The court also outlined the elements of self-defense: 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. - 22 - * * * * 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. The facts before this court indicate that but for the court's error in failing to charge the jury that the appellant had no duty to retreat from her home, the outcome of the trial clearly would have been otherwise. The jury submitted two insightful questions to the court, both of which clearly indicated its confusion on the law of self-evidence as instructed by the trial judge. The second question directly confronted the issue of the appellant's obligation to flee. The court erred when it determined that the jury's second question was one of fact, when the question was - 23 - clearly one of law. The jury's confusion constitutes an exceptional circumstance as required under Cooperrider, supra. This case is reversed and remanded for a new trial. Judgment reversed and remanded. - 24 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) her 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. Exceptions. JOHN T. PATTON, P.J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY 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. .