self-defense claim in Ohio

2025FIRST ASSIGNMENT OF ERROR {¶ 11} WHERE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [MONTGOMERY'S] REQUEST FOR A SELF-DEFENSE INSTRUCTION, USURPING -4- Clermont CA2024-01-002 THE ROLE OF THE JURY, IT DENIED [MONTGOMERY] HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL IN VIOLATION OF THE SIXTH AMENDMENT. {¶ 12} Montgomery argues on appeal that his testimony demonstrated he shot Rusty and Ryan in self-defense because he: (1) believed that he and those accompanying him were intending to buy marijuana from Rusty and not rob him; (2) feared for his life after both Rusty and Ryan grabbed him; and (3) c

2025A self-defense claim under R.C. 2901.05(B)(1) includes three elements: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he [or she] was in imminent danger of death or great bodily harm and that his [or her] only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate any duty to retreat or avoid the danger.” State v. Messenger, 2022-Ohio-4562, ¶ 14 , quoting State v. Barnes, 94 Ohio St.3d 21, 24 (2002).

2026“If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense . . . , the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense . . . .” Id. {¶ 22} The foregoing statute “places the initial burden of producing evidence ‘that tends to support’ a self-defense claim on the defendant.” State v. Bowen, 2024-Ohio-1079, ¶ 11 (2d Dist.), quoting R.C. 2901.05(B)(1). “[I]f the defendant’s ev

2026Second Assignment: Failure to Instruct the Jury on Self-Defense {¶29} “[A] defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that the defendant’s use of force was in self-defense,” i.e., “if the defendant’s evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when viewed in the light most favorable to the defendant, then the defendant has satisfied the burden.” State v. Messenger, 2022-Ohio-4562, ¶ 25 . {¶30} To be entitled to a self-def

2025Dist.). “‘The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs 10. heavily against the conviction.’” State v. Lang, 2011-Ohio-4215, ¶ 220 , quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). {¶ 34} Relevant here, the “not at fault” element of a self-defense claim “does not require in all situations that the defendant must have refrained from throwing the first punch or a showing that the defendant played no part in creating the situation giving rise to the affray.” State v. Himes, 2023-Ohio-3561, ¶ 25 (12th Dist.).

2023In a manifest-weight challenge, we “ ‘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 and a new trial ordered.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 , 485 N.E.2d 717 (1st Dist.1983). {¶9} To succeed on a self-defense claim involving the use of deadly force, a defendant must show “(1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant had a bon

2026In considering whether a conviction is against the manifest weight of the evidence, “‘[t]he [appellate] 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.’” State v. Thompkins, 1997-Ohio- 52, ¶ 24, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “‘The discretionary power to grant a new trial should

2026In considering whether a conviction is against the manifest weight of the evidence, “‘[t]he [appellate] 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.’” State v. Thompkins, 1997-Ohio- 52, ¶ 24, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “‘The discretionary power to grant a new trial should

2026In State v. Thomas, 77 Ohio St.3d 323 (1997), the Supreme Court of Ohio described the second element of a self-defense claim as having a subjective and an objective component. “[T]he jury first must consider the defendant’s situation objectively, that is, whether, considering all of the defendant’s particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, [he] reasonably believed [he] was in imminent danger.” Id. at 330 .

2026In State v. Thomas, 77 Ohio St.3d 323 (1997), the Supreme Court of Ohio described the second element of a self-defense claim as having a subjective and an objective component. “[T]he jury first must consider the defendant’s situation objectively, that is, whether, considering all of the defendant’s particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, [he] reasonably believed [he] was in imminent danger.” Id. at 330 .

2026In light of the evidence presented, the jury could have reasonably concluded that appellant was not entitled to a self-defense claim. “[A] conviction is not against the manifest weight of the evidence because the trier of fact believed the state’s version of events over the defendant’s version.” State v. Messenger, 2021-Ohio-2044, ¶ 49 (10th Dist.). {¶ 57} Having reviewed the entire record, weighed the evidence and all reasonable inferences, and considered the credibility of witnesses while appropriately deferring to the factfinder’s credibility determinations, we conclude that the jury did no

2025Accordingly, “the burden of proof for . . . self defense has shifted to the state,” but “the burden of production for . . . self defense[] remains with the defendant.” (Emphasis sic.) State v. Messenger, 2021-Ohio-2044, ¶ 44 (10th Dist.). {¶13} “The elements of a self-defense claim differ based on whether the defendant employed deadly or non-deadly force to defend against their perceived assailant.” State v. Crowe, 2019-Ohio-3986, ¶ 15 (3d.

2025State v. Asp, 2023-Ohio-290, ¶ 55 (5th Dist.), citing State v. Paskins, 2022-Ohio-4024, ¶ 48 (5th Dist.). {¶12} To be sure, a defendant’s burden of showing, under R.C. 2901.05(B)(1), that evidence has been presented that “tends to support” a self-defense claim “is not a heavy one and . . . might even be satisfied through the state's own evidence.” Messenger at ¶ 22 .

2023Lucas App. No. L-22-1082, 2023-Ohio-103 , quoting State v. Paskins. 2022-Ohio-4024 , --- N.E.3d ---, ¶ 48 (5th Dist.). {¶ 13} “[A] defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that the defendant’s use of force was in self-defense.” State v. Messenger, --- Ohio St.3d ---, 2022-Ohio-4562 , --- N.E.3d ---. ¶ 25. “[I]f the defendant’s evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when 5. viewed in the light most favorable to the

2026However, "the first element of a self-defense claim does not require in all situations that the [defendant] must have refrained from throwing the first punch." State v. Nichols, 2002-Ohio-415 (4th Dist.); State v. Gillespie, 2007-Ohio-3439, ¶ 17 (2d Dist.).

2025The first prong of the self-defense test, therefore, “requires a defendant to show that he did ‘not engage in such wrongful conduct toward his assailant that the assailant was provoked to attack the defendant as he did.’” Gaston at ¶ 16 , quoting State v. Gillespie, 2007-Ohio-3439, ¶ 17 (2d Dist.).

2026To prevail on a self-defense claim, Toran would have had to show that “(1) [he] was not at fault in creating the altercation; (2) [he] had reasonable ground to believe that [he] was in imminent danger of bodily harm; and (3) the only way to protect [himself] from the danger was using force and [he] did not use more force than was reasonably necessary to defend [himself] against the imminent danger of bodily harm.” State v. Nichols, 2025-Ohio-1515, ¶ 24 (1st Dist.), citing State v. Ridley, 2022-Ohio-2561, ¶ 15 (1st Dist.). {¶24} Surveillance video shows Toran pulling M.W. out of the car and thr

2026“In determining whether the defendant presented evidence tending to support a self-defense claim, the trial court considers all of the evidence, from all sources, construed most strongly in the defendant’s favor.” Weemes at ¶ 31 . “‘The elements of self-defense are cumulative, and a defendant’s claim of self-defense fails if any one of the -8- elements is not present.’” State v. Passmore, 2023-Ohio-3209, ¶ 29 (3d Dist.), quoting State v. Ridley, 2022-Ohio-2561, ¶ 15 (1st Dist.). {¶18} Once a defendant presents a viable self-defense claim, the State bears the burden to prove, beyond a reasonabl

2026“A defendant is entitled to a self-defense jury instruction when he presents legally sufficient evidence for every element of a self-defense claim.” State v. Palmer, 2024-Ohio-539, ¶ 20 .

2026Second Assignment: Failure to Instruct the Jury on Self-Defense {¶29} “[A] defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that the defendant’s use of force was in self-defense,” i.e., “if the defendant’s evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements of a self-defense claim when viewed in the light most favorable to the defendant, then the defendant has satisfied the burden.” State v. Messenger, 2022-Ohio-4562, ¶ 25 . {¶30} To be entitled to a self-def

2026State v. Knuff, 2024-Ohio-902, ¶ 191 . 7 {¶ 24} The elements of a self-defense claim when deadly force is used are: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had 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) that the defendant did not violate any duty to retreat or avoid the danger.” State v. Barnes, 2002-Ohio-68, ¶ 11 , citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus

2025B. {¶14} The second element of a self-defense claim is whether the defendant “had a bona fide belief that [he] was in imminent danger of death or great bodily harm and that [his] only means of escape was the use of force.” State v. Thomas, 77 Ohio St.3d 323, 330 (1997), citing State v. Williford, 49 Ohio St.3d 247, 249 (1990), citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.

2026Thus, to defeat a self-defense claim, “the State must ‘disprove at least one of the elements of self-defense beyond a reasonable doubt.’” Passmore at ¶ 29 , quoting State v. Carney, 2020-Ohio-2691, ¶ 31 (10th Dist.). {¶19} On appeal, Laidlaw contends that the weight of the evidence supports his claim of self-defense.

2026Thus, to defeat a self-defense claim, “the State must ‘disprove at least one of the elements of self-defense beyond a reasonable doubt.’” Passmore at ¶ 29 , quoting State v. Carney, 2020-Ohio-2691, ¶ 31 (10th Dist.). {¶19} On appeal, Alexander contends that the greater weight of the evidence supports his claim of self-defense.

2026See also State v. Smith, 2020-Ohio-4976, ¶ 53 (1st Dist.) (holding that “a person may not provoke an assault or voluntarily enter an encounter and then claim a right of self-defense”).

2025State v. Smith, 2020-Ohio-4976, ¶ 56 (1st Dist.). 8 OHIO FIRST DISTRICT COURT OF APPEALS {¶26} Firing multiple shots may undermine a self-defense claim.

2026“In determining whether the defendant presented evidence tending to support a self-defense claim, the trial court considers all of the evidence, from all sources, construed most strongly in the defendant’s favor.” Weemes at ¶ 31 . “‘The elements of self-defense are cumulative, and a defendant’s claim of self-defense fails if any one of the -8- elements is not present.’” State v. Passmore, 2023-Ohio-3209, ¶ 29 (3d Dist.), quoting State v. Ridley, 2022-Ohio-2561, ¶ 15 (1st Dist.). {¶18} Once a defendant presents a viable self-defense claim, the State bears the burden to prove, beyond a reasonabl

2026“In determining whether the defendant presented evidence tending to support a self-defense claim, the trial court considers all of the evidence, from all sources, construed most strongly in the defendant’s favor.” Weemes at ¶ 31 . “‘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. Passmore, 2023-Ohio-3209, ¶ 29 (3d Dist.), quoting State v. Ridley, 2022-Ohio-2561, ¶ 15 (1st Dist.). {¶18} Once a defendant presents a viable self-defense claim, the State bears the burden to prove, beyond a reasonable do

2024State v. Melchoir (1978), 56 Ohio St.2d 15 .” State v. Gunther, 1987 WL 8231 , at *1 (11th Dist. March 20, 1987). {¶19} To raise such a defense here, Pennock bore the burden of producing legally sufficient evidence that her use of force against Harris was in self-defense. “‘[A] defendant charged with an offense involving the use of force has the burden of producing legally sufficient evidence that the defendant’s use of force was in self-defense,’ i.e., ‘if the defendant’s evidence and any reasonable inferences about that evidence would allow a rational trier of fact to find all the elements o

2024But “[i]f the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” Id. {¶ 37} A self-defense claim requires a defendant to produce evidence “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had 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) that the defendant did not violate

2021Ineffective Assistance of Counsel {¶ 35} In her second assignment of error, Henderson asserts that her constitutional right to effective assistance of counsel was violated when trial counsel chose not to seek a self-defense instruction. {¶ 36} To prevail on an ineffective assistance of counsel claim, a defendant must prove that his or her attorney was ineffective under the standard test from Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2021Ineffective Assistance of Counsel {¶ 35} In her second assignment of error, Henderson asserts that her constitutional right to effective assistance of counsel was violated when trial counsel chose not to seek a self-defense instruction. {¶ 36} To prevail on an ineffective assistance of counsel claim, a defendant must prove that his or her attorney was ineffective under the standard test from Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2025B. {¶14} The second element of a self-defense claim is whether the defendant “had a bona fide belief that [he] was in imminent danger of death or great bodily harm and that [his] only means of escape was the use of force.” State v. Thomas, 77 Ohio St.3d 323, 330 (1997), citing State v. Williford, 49 Ohio St.3d 247, 249 (1990), citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.

2020Though Ferrell argues his counsel's failure to file written objections constituted a waiver of an objection to the instructions, the Supreme Court has held that a party does not waive an objection, and the error is preserved for appeal, " 'when the defendant objects in accordance with the second paragraph of Crim.R. 30(A), whether or not there has been a proffer of written jury instructions in accordance with the first paragraph of Crim.R. 30(A).' " Mack at 200 , quoting State v. Williford, 49 Ohio St.3d 247 (1990), paragraph three of the syllabus. {¶ 47} During the trial, the parties engaged

2024"And when a trial court refuses to give a requested jury instruction, the -7- Clermont CA2023-04-022 proper standard of review is whether the trial court abused its discretion under the facts and circumstances of the case." Id. {¶ 24} In deciding whether a self-defense instruction should be given, the trial court must view the evidence in a light most favorable to the defendant without regard to credibility.

2020See State v. Jackson, 22 Ohio St.3d 281, 284 , 490 N.E.2d 893 (1986). {¶ 35} The basis for Sain’s self-defense claim was his own testimony at the motion to withdraw hearing that he kept a loaded handgun in his vehicle located between the -15- driver’s seat and the middle console.

2025“The Supreme Court of Ohio has held that these elements are cumulative, such that the absence of one precludes the jury from finding the defendant acted in self-defense.” Patterson at ¶ 81 (Edelstein, J., dissenting), citing State v. Cassano, 2002-Ohio-3751, ¶ 73 . 5 As to the third element of a self-defense claim—i.e., “duty to retreat” requirement—we note that, effective April 6, 2021, the General Assembly amended R.C. 2901.09 as to that element.

2025Id., citing State v. Cassano, 2002-Ohio-3751 , ¶ 73. {¶9} In its written decision, the trial court highlighted the fact that Donovan turned his back on A.D. (who was armed), walked calmly back into his home, and eventually came back outside to reengage and seek out A.D.

2026See State v. Brooks, 2022-Ohio-2478, ¶ 24 (indicating that an error of law regarding a self-defense instruction may be harmless if, based on the evidence presented, the defendant would not have been entitled to a self-defense instruction).

2025“The amendment changed the procedure for adjudicating criminal cases involving evidence of self-defense; it did not make substantive changes to the elements of any offenses.” Id. -7- {¶ 13} Consequently, the court held that “[t]he state's new burden of disproving the defendant's self-defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal, and the Tenth District correctly declined to review the state's rebuttal of self-defense for sufficiency of the evidence.” Id. at ¶ 27. {¶ 14} Applying Messenger here, the proper review is for manifest weight, not sufficiency

2026State v. Fields, 2025-Ohio-2248, ¶ 27 (1st Dist.). “‘The State need only disprove one element of a self-defense claim to carry its burden.’” Id., quoting State v. Knuff, 2024-Ohio-902, ¶ 191 .

2026State v. Knuff, 2024-Ohio-902, ¶ 191 . 7 {¶ 24} The elements of a self-defense claim when deadly force is used are: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had 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) that the defendant did not violate any duty to retreat or avoid the danger.” State v. Barnes, 2002-Ohio-68, ¶ 11 , citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus

2025If the defendant produces evidence tending to support a self-defense claim, then the prosecution must prove beyond a reasonable doubt that the accused did not act in self-defense.” Id. {¶19} “The elements of self-defense differ depending on whether the defendant used deadly or non-deadly force to defend himself.” State v. Eddy, 2022- Ohio-3965, ¶ 14 (3d Dist.).

2022Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689 , quoting Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 83 (1955). {¶ 38} With these standards in mind, we will consider whether trial counsel was -21- ineffective in failing to ask for a self-defense instruction.

2026Id. at ¶ 27, 26. {¶106} The elements of a self-defense claim are: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he [or she] was in imminent danger of death or great bodily harm and that his [or her] only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate any duty to retreat or avoid the danger.” Id. at ¶ 14, quoting State v. Barnes, 2002-Ohio-68, ¶ 11 . {¶107} In this case, Appellant was lawfully present in a public place and therefore had no

2026State v. Knuff, 2024-Ohio-902, ¶ 191 . 7 {¶ 24} The elements of a self-defense claim when deadly force is used are: “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had 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) that the defendant did not violate any duty to retreat or avoid the danger.” State v. Barnes, 2002-Ohio-68, ¶ 11 , citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus

2026Id., citing State v. Olsen, 2023-Ohio-2254 , ¶ 57 (11th Dist.); and State v. Walker, 2021-Ohio-2037, ¶ 13 (8th Dist.). 29. {¶ 111} Here, the jury did not lose its way or create a manifest miscarriage of justice by finding that the State disproved Hernandez’s self-defense claim because the evidence supports a finding that Hernandez did not have a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from the danger was the use of deadly force.

2025(Emphasis sic.) See Sheets, 115 Ohio St. at 309 .