COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73044 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : NICHOLAS PANNETTI : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CP-CR-344782 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: DANIEL M. MARGOLIS, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- DYKE, P.J.: Defendant Nicholas Pannetti appeals from his conviction for felonious assault. For the reasons set forth below, we conclude that the jury was given erroneous instructions and we reverse and remand for further proceedings. On November 12, 1996, defendant was indicted for felonious assault in connection with an incident involving Steve Cheek. Defendant pleaded not guilty and the matter proceeded to a jury trial on May 6, 1997. The state's evidence demonstrated that at noon on August 30, 1996, Teamster truck drivers Steve Cheek and Willie Sankey went to Cudnik's Tavern in Cleveland for their lunch break. While the two men were looking at menus, defendant approached and confronted Cheek about corruption charges which Cheek had filed with the union. As Cheek stood up, defendant punched him in the face, breaking his nose and jaw. These witnesses further testified that Cheek fell to the floor after being struck and never struck defendant. Defendant elected to present evidence. His witnesses testi- fied that defendant approached Cheek about the corruption charges. According to these witnesses, Cheek slapped defendant's glasses off of his face and attempted to choke him, and defendant then struck Cheek once, causing Cheek to fall to the floor. The matter was submitted to the jury and the trial court gave the following instructions regarding self-defense: To establish self-defense, the following elements need to be shown: The defendant was not at fault in creating the -3- situation giving rise to the altercation; the defendant had an honest 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 that the defendant must not have violated any duty to retreat or avoid the danger. Now, if the defendant had reasonable grounds and an honest belief that he was in imminent danger of death or great bodily harm and that the only means of escape from such danger was by injuring his assailant, then he was justified, even though he was mistaken as to the existence of such danger. Now, the defendant is also justified in using some force in self-defense when he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force and if the force used was not likely to cause death or great bodily harm. In considering whether the defendant was justified in using some force in self-defense, you may consider all of the factual circumstances, including the relative size, age, physical condition and characteristics of both parties. Now, if the defendant had reasonable grounds and an honest belief that he was in imminent danger of use of unlawful force and that the only means to protect himself was by the use of force, then he might be justified, even though he was mistaken as to the existence of the necessity to defend himself. Now, what are the tests for deciding whether it was reasonable? First, words: Resort to the use of a deadly weapon or force is not permitted because of words. Vile or abusive language, or verbal threats, no matter how provocative, do not justify an assault or the use of a deadly weapon. In determining whether the defendant had reasonable grounds for an -- we don't have a deadly weapon. We have a serious assault with a punch. So I don't want to con- fuse you. I'm not trying to confuse you, but, in deter- mining whether the defendant had reasonable grounds for an honest belief that he was in imminent danger, you must put yourselves in the position of this defendant, with his characteristics, his knowledge or lack of knowledge, and under the circumstances and conditions that surrounded him at that time. You must consider the con- duct of Steve Cheek and determine if his acts and words caused the defendant to reasonably and honestly believe that he was about to be killed or to receive great bodily -4- harm. (Tr. 141-143). Defendant was subsequently convicted of felonious assault. The trial court sentenced defendant to thirty days incarceration, followed by 90 days house arrest and three years of community control under the supervision of the adult probation department. The court also fined defendant $2,500 plus costs and ordered him to make restitution of Cheek's out-of-pocket expenses. Defendant now appeals and assigns three errors for our review. Defendant's first assignment of error states: THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE BY USING AN INSTRUC- TION ONLY APPLICABLE TO THE USE OF DEADLY FORCE, THOUGH DEADLY FORCE WAS NOT THE ISSUE. Within this assignment of error, defendant maintains that the trial court erroneously instructed the jury that self-defense was established where, inter alia, the defendant reasonably and honestly believes that he was about to be killed or receive great bodily harm. (Tr. 143). Defendant asserts that such belief is required to justify the use of deadly force but is not necessary to justify the use of non-deadly force. Defendant further asserts that deadly force was not administered herein. We agree. As an initial matter we note that there was no objection to the instruction below. We are nonetheless permitted to address this issue for plain error in order to determine whether it affects defendant's substantial rights. See Crim. R. 52; State v. Stover (1982), 8 Ohio App.3d 179, 183. -5- We next note that deadly force is defined in R.C. 2901.01(A)(2) as any force that carries a substantial risk that it will proximately result in the death of any person. Herein, defendant was charged with felonious assault, or causing serious physical harm, R.C. 2903.11(A), in connection with the state's assertion that he unprovokedly punched Cheek. We therefore agree that this matter does not involve the application of deadly force. We further note that self-defense is an affirmative defense whichthe defendant must prove by a preponderance of the evidence. State v. Napier (1995), 105 Ohio App.3d 713, 721. Pursuant to this defense, one may use such force as the circumstances require in order to defend against danger which one has good reason to apprehend. State v. Fox (1987), 36 Ohio App.3d 78, 79; Akron v. Dokes(1986), 31 Ohio App.3d 24, 25; State v. McLeod (1948), 82 Ohio App. 155, 157. Thus, while it is true that a real or perceived threat of death or great bodily harm is required to justify deadly force in self-defense, such a grave threat is not necessary in cases where less than deadly force is used to repel a feared attack. State v. Perez (1991), 72 Ohio App.3d 468, 472. As the Dokes Court explained: Thus, even when faced with less than impending death or great physical harm, one may use reasonable force in order to protect oneself against a perceived danger. See 6 American Jurisprudence 2d (1963) 65, 67, Assault and Battery, Sections 70 and 72. To hold otherwise would mean that one could not legally defend oneself against a less serious assault, but would instead have to submit to an extremely offensive yet only mildly injurious attack. Id., at 25. Significantly, this rule has been applied in cases such as -6- this,where the defendant has been charged with felonious assault. See State v. Perez, supra; State v. Fox, supra. In this case, the trial court's instruction clearly predicated the availability of the self-defense doctrine on a threat of death or great bodily harm, even though deadly force was not administered. Accordingly, the instructionsprejudicially limited the availability of self-defense and necessarily prejudiced the defense. Accord Statev. Perez, supra; State v. Fox, supra; Akron v. Dokes, supra. This assignment of error is well-taken. Further, our disposition of this assignment of error renders the remaining assignments of error moot. App. R. 12. We reverse defendant's conviction and remand this matter for further proceedings consistent with this opinion. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their 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. SWEENEY, J. CONCURS O'DONNELL, J., DISSENTS ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .