author: THOMAS R. WRIGHT, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Anthony J. HUDSON, Defendant-Appellant.
    NO. 2014-T-0097
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided January 16, 2018
    Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH, 44481-1092 (For Plaintiff-Appellee).
    Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Assistant Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH, 43215-9308. (For Defendant-Appellant).
   THOMAS R. WRIGHT, P.J.

{¶ 1} Appellant, Anthony J. Hudson, appeals the trial court's September 23, 2014 judgment entry sentencing him following a jury trial and conviction for possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(e). Anthony argues that his conviction is contrary to law since the state failed to establish the weight of the actual cocaine in the crack cocaine in his possession. He also asserts there was insufficient evidence establishing that he knowingly possessed cocaine and thus his conviction is against the manifest weight of the evidence. We affirm.

{¶ 2} William Felt Jr. testified that he was a member of the TAG task force and is an Ashtabula City Police Officer. Felt explained that he initially drove a confidential source to a home in Warren Township to purchase drugs. Thereafter, a warrant was obtained, and on November 13, 2006, the Trumbull, Ashtabula, and Geauga County "TAG" task force executed a search warrant at the home. The only person in the home at the time was Michael Hudson, who is appellant's brother.

{¶ 3} Felt was the photographer and the task force's scribe when the warrant was executed. He photographed and secured documents with the name Michael Hudson on them and other documents with Anthony Hudson's name on them.

{¶ 4} Felt photographed a receipt found in the kitchen with Michael's name on it with his address listed as the address of the home being searched. Felt also secured a CD case with white powder lines and residue on it. The officers also found a scale with a white residue on it, baking soda, a protein powder used for "cutting" cocaine, and a frying pan with white crusty residue, suspected to be cocaine, in the kitchen. Felt's photographs of these items were introduced at trial. They also found a baggie containing marijuana in the kitchen.

{¶ 5} Felt confirmed that the first floor bedroom was padlocked closed, and the officers had to use force to open it. TAG task force members located documents in the locked bedroom containing the name Michael Hudson as well as documents with Anthony's name on them. They found a pawn receipt with Michael's name on it in the padlocked bedroom along with a residential lease agreement listing Anthony Hudson as the lessee of this property. Felt also photographed an Ohio identification card issued to Anthony and a Warren utility receipt with Anthony's name on it in this locked bedroom.

{¶ 6} The task force also found a large quantity of crack cocaine on a television stand in the locked bedroom. This was the only bedroom in the home that had the door padlocked closed.

{¶ 7} Ten to fifteen minutes after the task force arrived at the home, Major Thomas Stewart Sr. saw Anthony drive past the home in a beige Cadillac. Stewart pulled Anthony over for driving with a suspended license. The car was registered in Michael's name. Stewart secured a small bag of marijuana from Anthony and a set of keys, which contained the key to the padlock for the locked bedroom. This was the only key the officers located to the padlocked bedroom.

{¶ 8} Detective Tackett was the lead detective in this case and was also a TAG task force member. Tackett testified that it has been increasingly difficult to secure drug traffickers' homes and cars via forfeiture because there is a tendency for offenders to put valuables in another's name to avoid forfeiture. Tackett explained that Anthony was known to use his brother's name as an alias.

{¶ 9} Appellant's brief asserts three assignments of error:

{¶ 10} "Anthony Hudson's first-degree felony conviction for possession of 27 grams or more but less than 100 grams of cocaine was not supported by sufficient evidence. His first-degree felony conviction therefore violates his right to due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution. (T.p. 92-94, 186.)

{¶ 11} "The trial court erred when it denied Mr. Hudson's Crim.R. 29(A) motion for acquittal because the conviction for possession of cocaine therefore violates his rights to due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution. (T.p. 142-144.)

{¶ 12} "Anthony Hudson's conviction for possession of cocaine is against the manifest weight of the evidence, in violation of Mr. Hudson's right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. (T.p. 186.)"

{¶ 13} First, Anthony alleges that his first-degree felony conviction was based on insufficient evidence. He argues that the state must prove the quantity of the pure cocaine in the crack cocaine in his possession in order to secure an enhanced conviction. He alleges that the evidence at trial only supports a conviction for a fifth-degree felony possession in light of the state's failure to prove the actual quantity of pure cocaine in his possession.

{¶ 14} The state correctly points out that Anthony did not raise this issue at trial either by way of objection or in his motion for acquittal. Thus, we review this issue for plain error. State v. Barnes , 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Notice of plain error should only occur under exceptional circumstances and in order to prevent a miscarriage of justice. Id. at paragraph three of the syllabus. "Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise." State v. Moreland , 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).

{¶ 15} R.C. 2925.11(A) provides: "No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

{¶ 16} R.C. 2925.11(C)(4)(e) states: "Whoever violates division (A) of this section is guilty of one of the following: * * * (4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine , whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: * * * (e) If the amount of the drug involved equals or exceeds twenty-seven grams but is less than one hundred grams of cocaine , possession of cocaine is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree." (Emphasis added.)

{¶ 17} In Anthony's case, the state established via the testimony of a forensic chemist, Jennifer Acurio, that crack cocaine is a compound. She confirmed that the amount of the drug in Anthony's possession, i.e., crack cocaine, weighed more than 27 grams. Acurio confirmed that the crack cocaine weighed 28.97 grams when she first weighed it in June 2014. Acurio's predecessor weighed and tested the same substance, and it weighed a few grams more in December of 2006. She explained that crack cocaine is a moisture compound and that it lost moisture weight during the eight years that it was in storage.

{¶ 18} Acurio stated the following on cross-examination:

{¶ 19} "Q. [D]o you test other substances within that material to determine what other compounds are used to help create crack cocaine?

{¶ 20} "A. No, we don't.

{¶ 21} "* * *

{¶ 22} "A. * * * Once cocaine is present, I don't identify anything else that is in the mixture.

{¶ 23} "* * *

{¶ 24} "Q. So you wouldn't be able to determine, would you, if there's muscle feeder in that crack cocaine?

{¶ 25} "A. No * * *.

{¶ 26} "Q. * * * could you tell if there was Baking Soda in crack cocaine?

{¶ 27} "A. No, I could not.

{¶ 28} "Q. * * * why not?

{¶ 29} "A. The instrumentation that we use, we don't identify other compounds that are present. And based on the law, we don't do any kind of quantification to show how much the cocaine is present.

{¶ 30} "Q. * * * It's all just considered cocaine?

{¶ 31} "A. Correct.

{¶ 32} "Q. So if you, if your or somebody wanted to, you could still that down further and see how much is cocaine and how much is extraneous matters?

{¶ 33} "A. It could be quantified.

{¶ 34} "* * *

{¶ 35} "Q. So we will never know how much actual cocaine is in that package; correct?

{¶ 36} "A. That's correct."

{¶ 37} Felt's testimony confirmed that he found baking soda at the home that day and explained that it is used "as a chemical additive to powder cocaine. And that is how crack is made." Felt also explained the significance of the protein additive used by weightlifters found in the home, stating "[i]t's added to raw cocaine before it's cooked into crack. And what it does is increases the volume of the original product. It's a cutting agent. You essentially turn a specific quantity of powder cocaine, add a corresponding amount of a cutting agent, now you've doubled the amount of cocaine which you then can turn more profit * * *."

{¶ 38} Anthony asserts that a plain reading of R.C. 2925.11(C)(4)(e) requires the state to establish the weight of the pure cocaine in the crack cocaine in his possession via a scientific analysis of the entire substance. He directs our attention to State v. Gonzales , 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, 2015 WL 502263, ¶ 47, that held: "the state, in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), must prove that the weight of the actual cocaine possessed by the defendant met the statutory threshold. * * * Because the state failed to introduce evidence as to the purity or weight of the cocaine in this case, we find that appellant's penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and vacated." (Emphasis sic.)

{¶ 39} After certifying a conflict on this precise issue, the Supreme Court affirmed the Gonzales decision, holding: "Given the unambiguous language of the statute, we * * * hold that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold." State v. Gonzales , 150 Ohio St.3d. 261, 2016-Ohio-8319, 81 N.E.3d 405, ¶ 22, " Gonzales I ". Thereafter, however, the Supreme Court granted the state's application for reconsideration in Gonzales I, vacated its decision, and concluded the opposite in " Gonzales II. " State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 18.

{¶ 40} Like Gonzales I, Gonzales II holds that R.C. 2925.11(C)(4)(e) is unambiguous. But unlike Gonzales I, Gonzales II concludes the statute unambiguously includes the weight of the actual cocaine along with any filler materials to determine the appropriate penalty under the statute. Id. at ¶ 12-14.

{¶ 41} As a court of inferior jurisdiction, we must follow the Ohio Supreme Court's decisions. State v. Ryan, 10th Dist. Franklin No. 08AP-481, 2009-Ohio-3235, 2009 WL 1911863, ¶ 48 ; Rollins v. State , 8th Dist. Cuyahoga Nos. 96192-96194, 2011-Ohio-3264, 2011 WL 2568223, ¶ 22. Thus, consistent with Gonzales II , Anthony's first assigned error lacks merit and is overruled.

{¶ 42} Anthony's second assignment of error challenges the trial court's denial of his motion for an acquittal under Crim.R. 29(A). An appellate court reviews a trial court's decision on a motion for acquittal under the same standard governing a challenge on insufficient evidence grounds. State v. Clements , 12th Dist. Butler No. CA2009-11- 277, 2010-Ohio-4801, 2010 WL 3836134, ¶ 17. We must examine the evidence and determine whether such evidence, if believed, would support a conviction. State v. Wilson , 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, 2007 WL 1394631. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded on other grounds.

{¶ 43} Anthony takes issue with the state's evidence that he knowingly possessed cocaine. He claims that the concept of knowingly requires proof that the drugs did not belong to his brother and that the state had to prove that he had exclusive access to the drugs. He also asserts that there was insufficient evidence to establish that he "constructively possessed" the drugs because constructive possession requires proof that he was not only able to exercise dominion and control over the drugs, but also that he was conscious of the presence of the drugs.

{¶ 44} R.C. 2925.11(A) provides: "No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

{¶ 45} R.C. 2901.22(B) states in part: "[a] person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist."

{¶ 46} "Possession" is defined as "having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." R.C. 2925.01(K). Possession of drugs may be actual or constructive, and constructive possession may be established "entirely by circumstantial evidence." State v. Fogle , 11th Dist. Portage No. 2008-P-0009, 2009-Ohio-1005, 2009 WL 580797, ¶ 28 ; State v. Swain , 6th Dist. Erie Nos. E-11-087, 2013-Ohio-5900, 2013 WL 7123144, ¶ 40-41.

{¶ 47} "Constructive possession exists when an individual is able to exercise dominion or control over an item, even if the individual does not have the item within his immediate physical possession." State v. Kingsland , 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13. "However, the mere fact that [drugs are] located within premises under one's control does not, of itself, constitute constructive possession. It must also be shown that the person was conscious of the presence of the object. Without this element one could be found to be in illegal possession of [drugs] surreptitiously placed in or upon his property by another." (Emphasis added.) (Citations omitted.) State v. Hankerson , 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982).

{¶ 48} Further, absent an admission by a defendant or direct testimony by another with knowledge, the defendant's knowledge of the presence of illegal drugs where the crime charged is possession of drugs often must be proven via circumstantial evidence as well. Id. at 92, 434 N.E.2d 1362. "Circumstantial evidence, however, must do more than raise a strong presumption of guilt in order to support a conviction. In order to prove an essential element of a crime the circumstantial evidence must be irreconcilable with any reasonable theory of the accused's innocence." Id.

{¶ 49} The determinative issue before us is whether the evidence presented at Anthony's trial is sufficient to support a finding beyond a reasonable doubt that he had knowledge that the crack cocaine was in his home's locked bedroom, and as a result he had constructive possession of cocaine. Id. at 93, 434 N.E.2d 1362.

{¶ 50} As Anthony contends, it is undisputed that both Michael and Anthony Hudson resided in the Warren Township home. However, the state's theory in pursuing Anthony for possession of the crack cocaine was based on the fact that he had personal items in the locked bedroom that contained the drugs and that he had actual, physical possession of the key to the padlocked door. The state's evidence was circumstantial.

{¶ 51} The defense argued at trial that the drugs belonged to Michael in light of the fact that he owned the car and the set of keys that had the key to the padlocked bedroom door. However, there was nothing evidencing that the keys belonged to Michael.

{¶ 52} Anthony directs our attention to State v. Swalley , 11th Dist. Ashtabula No. 2010-A-0008, 2011-Ohio-2092, 2011 WL 1648084, which held in part that Swalley's conviction for drug possession was not supported by sufficient evidence. However, after an exhaustive analysis of similar cases involving possession of drugs in a shared residency, Swalley held that the evidence before it was insufficient since the drugs were found in common areas of the dwelling that were occupied by and completely accessible to the other residents of the home. Furthermore, Swalley established that he was out of town for a week before the search and at the time of the search. Thus, we held in the absence of forensic evidence linking the drugs to the defendant, there was insufficient evidence to establish that he had possession of the drugs. Id. at ¶ 73.

{¶ 53} In State v. Jackson , 11th Dist. Ashtabula No. 2002-A-0039, 2003-Ohio-5863, 2003 WL 22470869, however, we upheld Jackson's possession conviction where the drugs were found in a sock drawer in a bedroom even though there were four adults in the home at the time of the search. The search also revealed correspondence and bills addressed to Jackson in this unlocked bedroom. Jackson testified in her defense and denied that the drugs belonged to her, but she admitted to occasionally sleeping in this bedroom in her three-bedroom home. Id. at ¶ 31-32. Thus, we found that the state established via sufficient evidence that she had constructive possession of the drugs. Id. at ¶ 36-37.

{¶ 54} Like Jackson , there was no evidence presented that Anthony had cocaine in his physical possession. Regardless, one could reasonably deduce that Anthony had constructive possession of the cocaine locked in the bedroom in his home. Anthony rented the Warren Township residence, and as a result of his possession of the key to the room, he had access and control over the locked bedroom that contained the drugs. Further, the crack cocaine was sitting in plain view on a television stand in the bedroom, and the police found personal items belonging to Anthony and documents bearing his name in this bedroom. Accordingly, upon viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Anthony was in constructive possession of the cocaine.

{¶ 55} Additionally, the evidence of drug use in the common areas of the home, including cocaine residue on a CD case, in a frying pan, and on a scale, bolsters that Anthony was fully conscious of the drugs in his home. State v. Molina , 8th Dist. Cuyahoga No. 83731, 2004-Ohio-4347, ¶ 27, 2004 WL 1846133 (finding defendant was aware of drug trafficking based on the "casual and pervasive presence of heroin and tools of trafficking" in her apartment.)

{¶ 56} Further, there was nothing reflecting that Michael had access to the locked bedroom at the time of the search. The testimony established that the door was locked when the police arrived and the only key they located was in Anthony's possession.

{¶ 57} Finally, even assuming that Michael also had access to the drugs in the locked bedroom as appellant contends, this does not vitiate Anthony's conviction since the brothers could have had joint possession and control of the drugs. State v. Collier , 8th Dist. Cuyahoga No. 78960, 2001 WL 1243925, at *4 (October 18, 2001), citing State v. Smith , 8th Dist. Cuyahoga No. 78277, 2001 WL 563077 (May 24, 2001) (holding that "[j]oint possession * * * exists when two or more persons together have the ability to control an object, exclusive of others.") The trial court provided the jury instruction on joint possession, stating "[t]wo or more persons may have possession if together they have the ability to control it exclusive of others." Accordingly, Anthony's second assignment of error lacks merit.

{¶ 58} Anthony's third and final argument contends his conviction is against the manifest weight of the evidence. In reviewing matters based on the manifest weight of the evidence, an appellate court sits as the thirteenth juror and reviews the evidence to assess whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed * * *." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

{¶ 59} "No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause." Ohio Constitution Article IV, Section 3 (B)(3); Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. We cannot reverse a conviction where the state has presented evidence allowing a reasonable trier of fact to conclude all of the elements of the offense were established beyond a reasonable doubt. Thompkins, supra. And an appellate court presumes that 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 proffered testimony." Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶ 60} Anthony alleges that the evidence was conflicting as to whether the drugs were his or his brother's. However, there was no evidence that Michael had the means to access the locked bedroom at the time of the search or the exclusive possession or control of the drugs in the bedroom. The jury heard the evidence and believed the state's version of the facts. Thus, we cannot find that it lost its way. Anthony's third assignment of error lacks merit and is overruled.

{¶ 61} Based on the foregoing, the judgment of the Trumbull County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

{¶ 62} I concur in the majority's analysis on the second and third assignments of error, since the weight and sufficiency of the evidence supported the determination that Hudson was in possession of cocaine. I write separately as to the first assignment of error, however, to emphasize that the Ohio Supreme Court's holding in Gonzales II, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, is entirely consistent with the clear statutory mandate that the offense level for cocaine possession must be determined by weighing both the cocaine and filler materials.

{¶ 63} The majority, in applying Gonzales II , concludes that "[a]s a court of inferior jurisdiction, we must follow the Ohio Supreme Court's decisions." Supra at ¶ 40. While this appears to express doubt about the propriety of such decision, there is no question that the Supreme Court's reading and application of the unambiguous statutory language was correct. Further, to fairly address the issue raised on appeal, it is necessary to include more than just a cursory reference to the analysis contained within Gonzales II.

{¶ 64} The pertinent statute, R.C. 2925.11(C)(4), states: "If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine , whoever violates division (A) of this section is guilty of possession of cocaine." (Emphasis added.) Under this language, a mixture or compound is also "cocaine" and must be weighed as such. The statutory language was properly held to be unambiguous and to "clearly encompass" the whole compound or preparation of cocaine. Gonzales II at ¶ 9.

{¶ 65} As the Court held: "Giving effect to the statute as a whole and to the intent of the legislature as expressed in the words of the statute, we conclude that the applicable offense level for cocaine possession under R.C. 2925.11(C)(4) is determined by the total weight of the drug involved, including any fillers that are part of the usable drug." Id. at ¶ 18.

{¶ 66} Any holding to the contrary would be impractical and inconsistent with legislative intent. "Concluding otherwise would require us to insert the words 'actual' or 'pure' to describe the cocaine that is intended to be penalized by the statute. If the General Assembly had been concerned about purity, rather than total weight, it would have said so." Id. at ¶ 13. There is no basis, under the current statutory language, for a conclusion that a small difference in purity should result in a disparate punishment. Drugs of any quality, with greater filler, available to a larger number of users present a serious threat to society as a whole.

{¶ 67} In addition, the opposing interpretation would make it difficult to sentence many defendants guilty of possession of cocaine with anything greater than a fifth-degree felony, which is contrary to the statutory scheme laid out by the General Assembly and detrimental to society as a whole. It would further be cumbersome for criminal laboratories to change their current procedures for testing cocaine, as was established in the Ohio Attorney General's amicus brief in Gonzales, causing an additional burden to the community.

{¶ 68} For the foregoing reasons, the Gonzales II decision must be applied not only because we are bound by the Supreme Court's precedent but also due to its consistency with the clear statutory language of R.C. 2925.11(C)(4). Thus, I concur in judgment only with the majority's opinion.

      This is the second time this case has been appealed. We initially reversed and remanded the trial court's decision to suppress the evidence secured via the search warrant because the good-faith exception to the exclusionary rule applied. State v. Hudson , 11th Dist. Trumbull No. 2013-T-0001, 2013-Ohio-4967, 2013 WL 6020783, ¶ 25.


source: Caselaw Access Project

author: Hoover, P.J. Harsha, J., concurring:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Brian JONES, Defendant-Appellant.
    No. 16CA3574
    Court of Appeals of Ohio, Fourth District, Ross County.
    RELEASED: January 16, 2018
    Timothy Young, Ohio Public Defender, and Francisco Lüttecke, Assistant Ohio Public Defender, Columbus, Ohio, for defendant-appellant.
    Matthew S. Schmidt, Ross County Prosecutor, and Pamela C. Wells, Assistant Ross County Prosecutor, Chillicothe, Ohio, for plaintiff-appellee.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} Defendant-appellant, Brian Jones, appeals the judgment of the Ross County Court of Common Pleas convicting him of one count of felonious assault and sentencing him to four years in prison. On appeal, Jones argues that (1) the trial court erred in failing to instruct the jury on aggravated assault and defense of another; and (2) trial counsel was ineffective for failing to request a jury instruction on defense of another. For the following reasons, we affirm the judgment of the trial court.

I. Facts and Procedural History

{¶ 2} In the early morning hours of July 19, 2015, James Vickery was stabbed outside an alleyway in Chillicothe, Ohio. Jones was identified as Vickery's assailant and charged with one count of felonious assault in violation of R.C. 2903.11, a felony of the second degree. The circumstances surrounding the stabbing were disputed at trial.

{¶ 3} Vickery testified that on the night in question he was walking to the store when he saw his friend, Rebecca Cade, and an unknown male, later identified as Jones, walking towards him. Vickery called out to Cade; but she ignored him and eventually turned down an adjacent alley. Jones followed.

{¶ 4} As Vickery approached the alley, Jones emerged and punched him in his face. A struggled ensued; and Vickery was hit several times in the neck, chest, and abdomen region. Although Vickery had a knife in his pocket, he never used it. When he was finally able to get free, he realized that he was bleeding and flagged down a motorist, who called 9-1-1. Vickery was airlifted to a Columbus hospital where he underwent surgery for multiple punctured organs.

{¶ 5} Jones recalled a different version of events. According to him, on the night in question, he and Cade were hanging out at a house near the alley. Sometime after midnight, Cade walked into the alley to make a call; and shortly thereafter, he heard an argument. Initially, he only heard loud voices but then he heard Cade yelling for help. When he arrived in the alley, he saw that Vickery had Cade by her arm. The two were standing still; but Cade was trying to pull away. She asked him for help.

{¶ 6} At that point, Jones told Vickery that "she was with [him] and that [he] was going to take her and she was drunk. She was drunk and [he] was going to take her back over to the house where she belonged." Vickery responded by punching Jones in his left temple, knocking him down. Jones stood up and responded with a double-punch, knocking Vickery to the ground. When Vickery got back up, he pulled out a knife, telling Jones that he was going to "get him." Jones backed away, and fearing for his life, he pulled a knife from his back pocket. He explained,

Vickery kept coming after me with the knife. I approached him, cut him across his left jaw he wiped the blood away and then he just went crazy. I don't recall hitting him in his gut. Last thing I remember I hit him underneath his left arm, he screamed and I think that's the only thing that woke him up and he proceeded to back away from me from that point on.

{¶ 7} At the conclusion of Jones's case, trial counsel moved for a jury instruction on aggravated assault:

The Court: I don't really recall any testimony at all that the defendant was under any influence of sudden passion or sudden fit of rage. If you could direct me to where that testimony is, perhaps that would assist me.
[Defense Counsel]: I would submit, Your Honor, the natural reaction to having someone pulling a knife on you would be a sudden passion.
The Court: That may be a natural reaction, but that doesn't mean the defendant had that reaction. Is there any testimony that would get me that in this case.
[Defense Counsel]: I think circumstantially, yes. If you apply the circumstantial evidence instruction, is found generally in OJI that circumstantial evidence is the same as direct evidence and therefore we've met that burden.
The Court: I agree that that is the OJI on circumstantial evidence. Can you point me to the circumstantial evidence that shows that is what he had?
[Defense Counsel]: Again, the circumstance is that he pulls a knife on him, [defendant's] reaction is to pull a knife out of his pocket, open it behind his back and when the guy comes at him he stabs him in his face.
The Court: You do understand that people can do that in a calm, collective manner, right?
[Defense Counsel]: Properly trained, yes. There are people that have been properly trained that they would be doing it in a calm and collective manner. I think that given, if you watch his demeanor as he described what was happening, that would support it certainly.
The Court: Based on his demeanor as he described it, I don't get that conclusion. I'm going to decline to give an instruction on aggravated assault.

{¶ 8} Although the trial court declined to give an instruction on aggravated assault, it instructed the jury on the affirmative defense of self-defense. The jury rejected that defense, however, and found Jones guilty of the charge. He was sentenced to four years in prison.

II. Assignments of Error

{¶ 9} On appeal, Jones assigns the following errors for our review.

Assignment of Error I:
The trial court violated Brian Jones's rights to due process and a fair trial when it failed to give the jury an instruction as to the inferior-degree offense of aggravated assault and also when it failed to instruct the jury on the "defense of another." Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16, of the Ohio Constitution ; Crim.R. 52(B).
Assignment of Error II:
Trial counsel provided ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and Article I, Section 10, of the Ohio Constitution. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III. Law and Analysis

A. The Trial Court Did Not Abuse Its Discretion in Denying Trial Counsel's Request for an Aggravated Assault Jury Instruction

{¶ 10} A trial court generally has broad discretion in deciding how to fashion jury instructions. State v. Hamilton , 4th Dist. Scioto No. 09CA3330, 2011-Ohio-2783, 2011 WL 2397088, ¶ 69. However, "a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." State v. Comen , 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. "Additionally, a trial court may not omit a requested instruction, if such instruction is 'a correct, pertinent statement of the law and [is] appropriate to the facts * * *.' " Hamilton at ¶ 69, quoting State v. Lessin , 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993). "When reviewing a trial court's jury instructions, the proper standard of review for an appellate court is whether the trial court's refusal to give a requested jury instruction constituted an abuse of discretion under the facts and circumstances of the case." State v. Ellis , 5th Dist. Fairfield No. 02 CA 96, 2004-Ohio-610, 2004 WL 251809, ¶ 19.

{¶ 11} Aggravated assault is an inferior degree of felonious assault. State v. Deem , 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294, 299 (1988). The two offenses are identical, except aggravated assault contains serious provocation as a mitigating factor. Id. R.C. 2903.11(A) provides:

(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.

R.C. 2903.12(A) defines aggravated assault 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:
(1) Cause serious physical harm to another * * *."

(Emphasis added.)

{¶ 12} Thus, in a trial for felonious assault, a trial court must give the jury an aggravated assault instruction if the defendant presents sufficient evidence of serious provocation such that a jury could both reasonably acquit the defendant of felonious assault and convict the defendant of aggravated assault. State v. Mack , 82 Ohio St.3d 198, 200, 694 N.E.2d 1328 (1998) ; Deem at 211, 533 N.E.2d 294 ; State v. Shane , 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).

{¶ 13} 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. Deem , at paragraph five of the syllabus.

{¶ 14} Determining whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction involves an objective and subjective inquiry. Mack at 201, 694 N.E.2d 1328. A court must (1) objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in a sudden fit of rage. Id.

{¶ 15} Under the objective part of the inquiry, provocation is reasonably sufficient to bring on a sudden passion or fit of rage if it would "arouse the passions of an ordinary person beyond the power of his or her control." Shane at 635, 590 N.E.2d 272. "If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give an aggravated assault instruction." Id. at 634, 590 N.E.2d 272.

{¶ 16} If the evidence shows that the defendant was sufficiently provoked under the objective standard, the inquiry then shifts to whether the defendant actually was under the influence of sudden passion or a sudden fit of rage. Id. at 634, 590 N.E.2d 272. When a court determines whether the defendant actually was under the influence of sudden passion or a sudden fit of rage, the court must consider the defendant's emotional and mental state at the time of the incident. Id.

{¶ 17} Here, Jones argues that "both the assault on [Cade], as well as [Vickery] pulling a knife in what had merely been a fistfight until then, establish that there was ample evidence presented that serious provocation existed, and that [Jones's] mental and emotional state in response to these circumstances warranted his use of force." Appellant's Brief, p. 8. However, neither a push nor a punch constitutes sufficient provocation to warrant an aggravated assault instruction. E.g. , State v. Howard , 9th Dist. Summit No. 26897, 2014-Ohio-1334, 2014 WL 1345299, ¶ 25 (concluding that "being grabbed on the arm and experiencing a cut in the process would not arouse the passions of an ordinary man beyond the power of his control such that he would be aroused to use deadly force"); State v. Evans , 4th Dist. Scioto No. 05CA3002, 2006-Ohio-2564, 2006 WL 1409812, ¶ 64 (stating that "[a]s a matter of law, hitting another person does not constitute sufficient provocation to bring about a sudden passion or fit of rage"); State v. Bryan , 4th Dist. Gallia No. 03CA3, 2004-Ohio-2066, 2004 WL 877665 (concluding that victim grabbing defendant and attempting to hit him is not, as a matter of law, serious provocation); State v. Parker , 4th Dist. Washington No. 03CA43, 2004-Ohio-1739, 2004 WL 728249, ¶ 23 (stating that victim throwing plate of spaghetti on defendant did not constitute serious provocation so as to warrant aggravated assault instruction); State v. Koballa , Cuyahoga App. No. 82013, 2003-Ohio-3535, 2003 WL 21513041 (concluding that sufficient provocation did not exist when the victim grabbed the defendant by the testicles and the arm).

{¶ 18} Likewise, we have previously stated that being struck with the butt of a rifle or sprayed in the face with mace does not constitute sufficient provocation because these acts are similar to a push or a punch. E.g. , State v. Noble , 4th Dist. Athens No. 15CA20, 2017-Ohio-1440, 2017 WL 1400008, ¶ 38 (noting that being struck with the butt of the rifle would not constitute a sufficient provocation); State v. Moore , 4th Dist. Scioto No. 15CA3717, 2016-Ohio-8274, 2016 WL 7496195, ¶ 22 (concluding that spraying an individual in the face with mace is arguably similar to a push or a punch and neither a push nor a punch constitutes sufficient provocation to warrant an aggravated assault instruction).

{¶ 19} While Jones alleges that Vickery did more than punch or push him, even if we were to assume that Vickery's act of pulling a knife on him objectively constitutes sufficient provocation, there was no evidence presented to show that Jones was actually under the influence of sudden passion or in a sudden fit of rage when he stabbed Vickery. The only evidence as to his mental and emotional state was his testimony that he "was worried about [his] life"; and "[f]ear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage." State v. Mack , 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998). Accord State v. Madden , 10th Dist. Franklin No. 05AP-149, 2006-Ohio-4224, 2006 WL 2349447, ¶ 26 (evidence failed to demonstrate the requisite subjective provocation where defendant did not testify he was enraged, but rather he was scared and believed that he was in a life or death situation). See also State v. Harris , 129 Ohio App.3d 527, 535, 718 N.E.2d 488 (1998) ("[e]vidence supporting the privilege of self-defense, i.e., that the defendant feared for his own and other's personal safety, does not constitute sudden passion or a fit of rage as contemplated by the voluntary manslaughter statute.").

{¶ 20} Accordingly, the trial court did not abuse its discretion in denying trial counsel's request for an aggravated assault jury instruction.

B. Trial Counsel Was Not Ineffective for Failing to Request a Jury Instruction on Defense of Another; and the Trial Court Did Not Commit Plain Error in Failing to Provide the Unrequested Instruction

{¶ 21} Criminal defendants have a right to counsel, including a right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 14. To establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001) ; State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). "In order to show deficient performance, the defendant must prove that counsel's performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. "Failure to establish either element is fatal to the claim." State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, 2008 WL 613116, ¶ 14.

{¶ 22} When considering whether trial counsel's representation amounts to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland at 689, 104 S.Ct. 2052. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Quotation omitted.) Id. "A properly licensed attorney is presumed to execute his duties in an ethical and competent manner." State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, 2008 WL 343328, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 61.

{¶ 23} "To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel's errors, the result of the trial would have been different." State v. Walters , 4th Dist. Washington Nos. 13CA33, 13CA36, 2014-Ohio-4966, 2014 WL 5798345, ¶ 24, citing State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998). "Furthermore, courts may not simply assume the existence of prejudice, but must require that prejudice be affirmatively demonstrated." Id. "There are countless ways to provide effective assistance in any given case; therefore, judicial scrutiny of counsel's performance must be highly deferential." Id.

{¶ 24} Here, Jones argues that trial counsel was ineffective for failing to request a jury instruction on defense of another. Defense of another is a variation of self-defense; and therefore, a defendant claiming that he acted in defense of another must meet the criteria for the affirmative defense of self-defense. E.g. , State v. M.L.D. , 10th Dist. Franklin No. 15AP-614, 2016-Ohio-1238, 2016 WL 1178586, ¶ 41 (applying standards of self-defense to claims of defense of another). To show self-defense, a defendant generally must show that (1) he or she was not at fault in creating the situation giving rise to the event, (2) he or she had reasonable grounds to believe and an honest belief that he or she was in imminent danger of death or great bodily harm and that the only means of escape from such danger was by the use of force, and (3) he or she did not violate any duty to retreat or avoid the danger. State v. Goff , 4th Dist. Lawrence No. 11CA20, 2013-Ohio-42, 2013 WL 139545, ¶ 17. Thus, in order to be entitled to a defense of another instruction, the defendant must demonstrate that " '(1) [he or the other person who was being defended] was not at fault in creating the violent situation, (2) [he] had a bona fide belief that [another] was in imminent danger of death or great bodily harm and that [the] 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. Chandler , 2017-Ohio-8573, --- N.E.3d ----, ¶ 16, quoting State v. Osborne , 9th Dist. Summit No. 27563, 2016-Ohio-282, 2016 WL 515404, ¶ 6.

{¶ 25} At trial, Jones testified that although he originally went into the alley because he heard Cade yelling for help, he stabbed Vickery because Vickery pulled a knife out and threatened to "get" him . Jones never indicated that Vickery threatened Cade with a knife, such that Jones was defending Cade when he stabbed Vickery. In fact, Jones's testimony indicated that Cade fled the scene before Vickery allegedly pulled out his knife. Thus, trial counsel's decision to not request a jury instruction on defense of another-and argue only self-defense-was reasonable trial strategy.

{¶ 26} Jones also argues that trial court committed plain error in not providing the unrequested instruction. To establish plain error, a defendant must show that (1) there was an error or deviation from a legal rule, (2) the error was plain and obvious, and (3) the error affected the outcome of the trial. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). We find plain error only " 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " State v. Clayton , 62 Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980), quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 27} Recently, the Ohio Supreme Court held that "[w]hen the decision not to request a particular jury instruction may be deemed to be part of a reasonable trial strategy, we will not find plain error ." (Emphasis added.) State v. Mohamed , 2017-Ohio-7468, 88 N.E.3d 935, ¶ 27, citing State v. Clayton , 62 Ohio St.2d 45, 47-48, 402 N.E.2d 1189 (1980). Put differently, a trial court does not commit plain error in failing to provide an unrequested jury instruction where the decision to not request the instruction could be considered trial strategy. Id.

{¶ 28} Pursuant to Mohamed , since trial counsel's decision not to request a jury instruction on defense of another was reasonable trial strategy, we will not find that the trial court committed plain error in failing to provide the unrequested instruction.

IV. Conclusion

{¶ 29} Having determined that Jones's claims lack merit, we overrule his assignments of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

Harsha, J.: Concurs in Judgment Only with Concurring Opinion.

McFarland J.: Concurs in Judgment Only.

Harsha, J., concurring:

{¶ 30} I concur in judgment and opinion except for paragraph 10, which seems to contain two inconsistent standards of review. In that regard I believe the law cited in Hamilton, supra and Comen, supra applies, rather than the rule cited in Ellis, supra . In other words the trial court may retain discretion in the wording of the instruction, but it cannot, as a matter of law, refuse to give an instruction where there is "appropriate to the facts" presented in evidence.


author: Harsha, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Thomas SCHWENDEMAN, Defendant-Appellant.
    No. 17CA7
    Court of Appeals of Ohio, Fourth District, Athens County.
    RELEASED: January 17, 2018
    Patrick T. Clark, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio for appellant.
    Lisa A. Eliason, City Law Director, Jessica L. Branner, Athens City Prosecutor, Athens, Ohio for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} After a jury found Thomas Schwendeman guilty of criminal damaging, the court sentenced him to suspended jail time, a fine, and restitution. Schwendeman contends that the trial court committed plain error and violated his constitutional due process rights in failing to give a jury instruction that a privilege to remove encroachments from his property would constitute a full defense. He also contends that he was denied the right to effective assistance of counsel because his trial counsel failed to request a corresponding jury instruction.

{¶ 2} The trial court did not commit plain error when it omitted a jury instruction on an owner's privilege to remove encroachments from his land. Schwendeman presented no credible evidence supporting his contention that he owned the land. Consequently, he failed to establish by the preponderance of the evidence an affirmative defense of privilege to remove an encroachment. As a matter of law the trial court could not have given a jury instruction on this affirmative defense. It was not an error, plain or otherwise, for the trial court to omit this instruction. Thus the trial court did not violate Schwendeman's constitutional rights. And because the trial court properly omitted this jury instruction, Schwedeman's trial counsel cannot be deficient for failing to request an unwarranted instruction.

{¶ 3} We affirm the trial court judgment.

I. FACTS

{¶ 4} The state charged Schwendeman with criminal damaging, a second-degree misdemeanor under R.C. 2909.06(A) because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach. Schwendeman lives behind the Roaches on an adjacent property. The trial record reveals that the Roaches erected a chain-link fence around their property in 2004 or 2005.

{¶ 5} About 12 years later, neighbor Danielle Metcalf informed Dawn Roach and Dawn's mother Linda Bennett that Schwendeman was tearing down the Roaches' chain-link fence. Metcalf testified that she lived next door to the Roaches and that she witnessed Schwendeman yelling and kicking the fence and showing "a lot of anger towards the fence." Metcalf testified that Linda Bennett approached Schwendeman and the two began talking. Metcalf saw two or three panels of fencing on the ground and heard Schwendeman state that he kicked the fence down because he was mad that the Roaches sprayed for poison ivy.

{¶ 6} Linda Bennett testified that she is Dawn Roach's mother and lives a few houses down from her. Bennett testified that she and Dawn were sitting outside when Danielle Metcalf approached and informed them that an older man was tearing down the Roaches' fence. Bennett testified that she went over and spoke with Schwendeman, who told her that it was his fence and he was taking it down. But Bennett told Schwendeman that he knew it was not his fence and he knew it had been erected by the Roaches. Bennett testified she began repairing the fence as she spoke with Schwendeman.

{¶ 7} Gordon Roach testified that his wife called him at work and told him that Schwendeman had started tearing down their fence. When Gordon came home from work he called the Athens County Sheriff's Office and made a report. Gordon testified he was unaware that there was any history of disputes with Schwendeman other than once Schwendeman had complained about Roach's occasional backyard campfires and one other time Schwendeman complained to Gordon about Gordon's radio volume. Gordon testified about the damage Schwendeman caused to the fence. On cross-examination Gordon testified that prior to installing the fence, he had his property surveyed and he installed the fence along the pins on his property.

{¶ 8} Athens County Sheriff Deputy Jennifer Atkins testified she responded to the Roaches' call. Deputy Atkins inspected the fence and spoke to neighbor Danielle Metcalf, Dawn's mother Linda Bennett, as well as Gordon and Dawn Roach. Deputy Atkins attempted to interview Schwendeman but he was not home, so she was unable to interview him until a few weeks after the incident. Deputy Atkins testified that Schwendeman complained to her about the Roaches' campfires and told her that he had contacted the Environmental Protection Agency in the past about the fires. He also complained about the Roaches' spraying herbicides for poison ivy along the fence line. Schwendeman told her that he uses the brush along the fence to get berries, so the use of chemicals was a concern to him. Deputy Atkins testified that Schwendeman admitted that he had kicked down the fence because he was angry over the Roaches' use of chemicals. Deputy Atkins asked Schwendeman if it was his fence; Schwendeman admitted that it was not his fence and it was not on his property.

{¶ 9} Athens County Sheriff Lieutenant Jason Kline testified he went with Deputy Atkins to interview Schwendeman and heard Schwendeman admit both to damaging the fence and that he did not own it.

{¶ 10} Schwendeman testified about his problems with the five or six fires the Roaches built in their backyard. Schwendeman reviewed photographs of the fence damage and testified that the fence was installed in 2004 and the only damage he saw was "wear and tear that's happened over the period of twelve years. More than twelve years it's been there." Schwendeman claimed that he witnessed tree branches falling on the fence and the Roaches' children climbing the fence, causing the fence to come apart. Schwendeman testified that on multiple occasions he saw the fence pull loose and collapse on the children when they were climbing it. Schwendeman said he attempted to "disconnect it carefully when I disconnected the mesh from the poles because I wanted, wanted to move it with me. He [Gordon Roach] knew it wasn't on his property ... he's said unless I have the property surveyed and he took me to court. He wouldn't move the fence."

{¶ 11} On cross-examination Schwendeman admitted he was angry when he began dismantling the fence, "I had been poisoned. My berries had been poisoned ... my food had been poisoned and my next smoothie would make me very ill." Schwendeman admitted he did not "own"

the fence, but claimed "it was on my property."

{¶ 12} In his closing argument Schwendeman's attorney argued that the children, dogs, and trees caused the damage to the Roaches' fence. The apparent defense strategy was to convince the jury that the fence was twelve to thirteen years old, was suffering the usual wear and tear, and that Schwendeman did not cause the minimal damage in the photographs. Defense counsel did not seek a jury instruction that Schwendeman was exercising a privilege to remove an obstruction on his own land and did not object to the court's jury instructions.

{¶ 13} The jury returned a guilty verdict. After the trial court heard evidence of monetary damages it ordered restitution and imposed a fine and jail term, but suspended all of the jail time and some of the fine.

II. ASSIGNMENTS OF ERROR

{¶ 14} Schwendeman assigns the following errors for our review:

1. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED MR. SCHWENDEMAN'S DUE PROCESS RIGHTS, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION BY FAILING TO INSTRUCT THE JURY THAT MR. SCHWENDEMAN'S PRIVILEGE TO REMOVE ENCROACHMENTS FROM HIS PROPERTY WOULD CONSTITUTE A FULL DEFENSE TO THE CHARGE OF CRIMINAL DAMAGING. T.PP. 148, 154, 161, 169-170; STATE V. WILLIFORD , 49 OHIO ST.3D 247, 551 N.E.2D 1279 (1990) ; STATE V. COOPER , 170 OHIO APP.3D 418, 2007-OHIO-1186, 867 N.E.2D 493 (4TH DIST.) ; NEWPORT HARBOR ASS'N V. DICELLO , 8TH DIST. CUYAHOGA NO. 87126, 2006-OHIO-4493, 2006 WL 2507565.
2. MR. SCHWENDEMAN'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WAS DENIED WHEN TRIAL COUNSEL FAILED TO REQUEST THAT THE COURT INSTRUCT THE JURY ON AN AFFIRMATIVE DEFENSE OF MR. SCHWENDEMAN'S PRIVILEGE TO REMOVE ENCROACHMENTS FROM HIS OWN LAND. STRICKLAND V. WASHINGTON , 466 U.S. 668, 104 S.CT. 2052, 80 L.ED.2D 674 (1984) ; STATE V. BRADLEY , 42 OHIO ST.3D 136, 538 N.E.2D 373 (1989).

III. LAW AND ANALYSIS

A. Plain Error and the Standard of Review

{¶ 15} "On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Crim.R. 30(A). Schwendeman did not object to any omission in the court's instructions. "A party's failure to object to jury instructions before the jury retires constitutes a waiver of any claim of error regarding the instructions, absent plain error."

State v. Cooper , 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 30 (4th Dist.).

{¶ 16} We apply the doctrine of plain error cautiously and only under exceptional circumstances to prevent a manifest miscarriage of justice. Id. In that regard, "[T]he test for plain error is stringent." State v. Ellison , 2017-Ohio-284, 81 N.E.3d 853, ¶ 27. "To prevail under this standard, the defendant must establish that an error occurred, it was obvious, and it affected his or her substantial rights." State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 64. An error affects substantial rights only if it changes the outcome of the trial. Id. As noted we notice plain error only to prevent a manifest miscarriage of justice. State v. Fouts , 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, 2016 WL 1071457, ¶ 59, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The defendant carries the burden to establish the existence of plain error, unlike the situation in a claim of harmless error, where the burden lies with the state. Cooper at ¶ 31.

B. Jury Instruction on Landowner's Privilege to Remove Encroachments on Land

{¶ 17} "A criminal defendant has the right to expect that the trial court will give complete jury instructions on all issues raised by the evidence." State v. Howard, 4th Dist. Ross No. 07CA2948, 2007-Ohio-6331, 2007 WL 4201355, ¶ 26. "[A] trial court should give a proposed jury instruction if it is a correct statement of the law and is applicable to the facts of the particular case." Id. citing Murphy v. Carrollton Mfg. Co. , 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).

{¶ 18} Our review of whether a jury instruction is warranted is de novo. State v. Depew, 4th Dist. Ross App. No. 00CA2562, 2002-Ohio-6158, 2002 WL 31521574, ¶ 24 ("While a trial court has some discretion in the actual wording of an instruction, the issue of whether an instruction is required presents a question of law for de novo review.") In determining whether to give a requested jury instruction, a trial court reviews the sufficiency of the evidence to support the requested instruction. State v. Hively , 4th Dist. Gallia No. 13CA15, 2015-Ohio-2297, 2015 WL 3745609, ¶ 20 (Harsha, J. dissenting on other grounds). A trial court has no obligation to give an instruction if the evidence does not warrant it. State v. Hamilton , 4th Dist. Scioto No. 09CA3330, 2011-Ohio-2783, 2011 WL 2397088, ¶ 70.

{¶ 19} Under Ohio law a land owner has the right to use self-help to remove encroachments on his property, provided the landowner acts with reasonable care. Brewer v. Dick Lavy Farms, LLC , 2016-Ohio-4577, 67 N.E.3d 196, ¶ 23 (2nd Dist.) citing Newport Harbor Assn. v. DiCello , 8th Dist. Cuyahoga No. 87126, 2006-Ohio-4493, 2006 WL 2507565. A defendant must meet the burden of going forward with evidence sufficient to raise an affirmative defense. See R.C. 2901.05(A). As a matter of law the trial court cannot give a jury instruction on an affirmative defense if a defendant fails to meet this burden. State v. Howard , 2007-Ohio-6331, 2007 WL 4201355, at ¶ 28.

{¶ 20} The proper standard for determining whether a defendant in a criminal case has successfully raised an affirmative defense asks whether the defendant has introduced sufficient evidence which, if believed, would raise a question in the minds of reasonable jurors concerning the existence of the issue. Id at ¶ 29, citing State v. Melchior , 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978). Here Schwendeman failed to introduce any credible evidence supporting his claim that he owned the property where the fence was located.

There are a variety of ways in which a party may show ownership of land. A party may offer into evidence any deeds relating to the transfer of property, provisions in a will or by way of express written agreement. Also competent as evidence are surveys or plats or maps. 7 O. Jur. 2d 821, 822, Boundaries, Secs. 55, 57. Again, the claimant must establish ownership by a preponderance of the evidence.

Reed v. Fronfield, 3rd Dist. Van Wert No. 15-83-25, 1985 WL 9059, *3 (Jan. 14, 1985) ; see also Dean v. Cox , 4th Dist. Lawrence No. 11CA10, 2012-Ohio-782, 2012 WL 628182 (surveys and the testimony of surveyors provide competent credible evidence of boundaries in a boundary dispute). Schwendeman did not introduce a deed, a survey or surveyor's testimony to support his contention that he owned the property on which the fence was erected. Moreover, his claim at trial that the fence was on his land directly contradicted prior statements he gave to the Athens County Sheriff Deputy Atkins and Lieutenant Kline. Without providing a rationale for the inconsistency with his prior admissions to the deputies, Schwendeman's trial testimony was not credible. Because there was no credible evidence supporting Schwendeman's contention that he owned the land, the trial court, as a matter of law, could not have properly given a jury instruction on this affirmative defense. See State v. Nichols , 4th Dist. Scioto No. 01CA2775, 2002-Ohio-415, 2002 WL 126973, Howard, supra . It was not an error, plain or otherwise, for the trial court to omit this instruction. And because he does not argue application of state law on the instruction issue deprives him of due process, Schwendeman cannot establish a violation of federal or state constitutional rights.

We overrule Schwendeman's first assignment of error.

C. Ineffective Assistance of Counsel

{¶ 21} The second assignment of error contends that Schwendeman received ineffective assistance of counsel because his attorney failed to request a jury instruction on his privilege to remove an encroachment from his land.

{¶ 22} Based upon our disposition of the first assignment of error, a request for an instruction would have been meritless. Because Schwendeman's trial counsel cannot be deficient for failing to request an unwarranted jury instruction, we overrule the second assignment of error. See, e.g. , State v. Tolbert , 4th Dist. Washington No. 15CA5, 2015-Ohio-4733, 2015 WL 7195852, ¶ 27 ("counsel's failure to raise what at the time was a meritless objection was not deficient").

{¶ 23} And based upon the "wear and tear" defense at trial, it is apparent that counsel's failure to request the instruction was based upon sound trial strategy.

IV. CONCLUSION

{¶ 24} The trial court did not commit plain error in omitting jury instructions on a landowner's privilege to remove encroachments on his land where the defendant failed to present any credible evidence to support his contention that he owned the land on which the fence was installed. Trial counsel cannot be found deficient for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

JUDGMENT AFFIRMED.

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


author: DIANE V. GRENDELL, J.

text:
    In the MATTER OF: H.J., Neglected Child
    NO. 2017-A-0068
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    January 22, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047, and Margaret A. Draper, Assistant Prosecutor, Ashtabula County Children Services Board, 3914 C Court, Ashtabula, OH 44004 (For Appellee, Ashtabula County Children Services Board).
    Judith M. Kowalksi, 333 Babbitt Road, # 323, Euclid, OH 44123 (For Appellant, Joshua Javis).
    Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor, OH 44060 (Guardian ad Litem).
   DIANE V. GRENDELL, J.

{¶ 1} Appellant, Joshua Javis, appeals the decision of the Ashtabula County Court of Common Pleas, Juvenile Division, granting appellee, Ashtabula County Children Services Board's, motion for permanent custody. The issue before this court is whether a parent may be found to have abandoned his child when he has failed to visit or maintain contact with the child for over ninety days due to repeated hospitalizations for mental illness and/or incarcerations in the county jail. For the following reasons, we affirm the decision of the court below.

{¶ 2} On April 5, 2016, when H.J. was six days old, the juvenile court granted Ashtabula County Children Services Board ex parte emergency temporary custody of the child.

{¶ 3} On April 6, 2016, the Children Services Board filed a Verified Complaint for Temporary Custody on the grounds of neglect, specifically that her mother, Desiree Davis, "tested positive for marijuana at the [time of her] birth"; "all three of [H.J.'s] siblings are currently in the Temporary Custody of ACCSB"; and "Desiree is currently homeless and there are concerns of domestic violence between Desiree and Joshua Javis (alleged father)."

{¶ 4} On the same day: "Mother stipulated to a finding of Probable Cause, and stipulated that paternity has not been established for the child and that the alleged father has not established any relationship with the child."

{¶ 5} On May 2, 2016, H.J. was adjudicated a dependent child pursuant to R.C. 2151.04(C).

{¶ 6} On June 1, 2016, a dispositional hearing was held. The juvenile court ordered H.J. to continue in the temporary custody of the Children Services Board. It was noted that Javis had "failed to appear and had failed to submit to paternity testing."

{¶ 7} On January 10, 2017, the Children Services Board filed a Motion Requesting Modification of Temporary Custody to Permanent Custody.

{¶ 8} On April 18, 2017, the Guardian ad Litem Report was filed.

{¶ 9} On August 8, 2017, the permanent custody hearing was held.

{¶ 10} On August 17, 2017, the juvenile court granted the Children Services Board's Motion for Permanent Custody. The court made the following relevant findings:

At the time of the child's birth [March 31, 2016], Mother and Father had one other child, J., who was in the Temporary Custody of ACCSB. The child's two half-siblings were also in the Temporary Custody of the agency as of March 31, 2016.
Father was present at the child's birth. Although he had been arrested two days prior to her birth, Father had been released on bond prior to the delivery. Mother was homeless at that time, and no evidence was presented that Father had a stable residence for the child.
Mother, who had been required to address drug and alcohol concerns in the siblings' existing case, tested positive for marijuana when this child was born.
In addition to the drug and alcohol treatment and housing issues addressed in the siblings' case plan for Mother, Mother was also required to address her mental health needs and complete a parenting class. She had not done so by March 31, 2016.
Father was in and out of hospitals, and had been incarcerated multiple times during this case. Father's mental health issues included bipolar disorder and post traumatic stress disorder.
He last saw the child in the Summer of 2016.
While in local jail, Father testified that he was not provided any opportunities to satisfy any case plan goals. Father was sentenced in felony cases, one of which was related to the manufacturing of methamphetamine, in May 2017.
Since being incarcerated in prison in May 2017, Father testified that he now has access to multiple programs. Father explained that he is now demonstrating the initiative to participate in drug treatment and 12-step meetings, parenting group, domestic violence classes, anger management, and other programming available to him. Father has received mental health services and is taking medications. With medication, Father testified that he is more stable and better able to function.
Father expressed a strong desire to be a part of his children's lives. The sibling, [J.J.], is now in the legal custody of a third party.
Father testified that it was in the best interest of the child that she should have a chance to know her parents and her siblings. Although Father expressed an appreciation for the child being cared for in the foster home, Father recounted his difficult childhood and his commitment to putting his life together. Father asked for consideration from the Court, explaining that he deserves a chance.
Father denied having any contact with Mother in the three months prior to the Permanent Custody hearing.
Father testified that his mother, the child's Paternal Grandmother, Patricia Pulsifer, is a potential placement for the child. Paternal Grandmother, Patricia Pulsifer, is/was known to the agency, and was determined not to be an appropriate placement for the child. Paternal Grandmother was convicted of a felony for taking drugs to Father while he was incarcerated. Father has no other family except for a brother who was unable to care for this child.
Sadie Duris, the ACCSB caseworker, worked with the family since November 2016 when the case was transferred from the prior caseworker, Dorothy Russell. Father acknowledged contact with Ms. Duris on one occasion when he was in the county jail.
Ms. Duris testified that Mother failed to address her drug abuse and mental health needs, failed to obtain stable housing and income, and failed to complete a parenting class. Mother did not complete any case plan requirements. The caseworker last saw Mother in person on February 8, 2017.
Mother completed a mental health assessment on September 24, 2015. The caseworker testified that Mother, however, failed to comply with recommendations.
Mother made multiple attempts at drug treatment. After failed attempts at treatment, Mother completed a residential Turning Point program on June 29, 2016. It was recommended that she complete additional outpatient treatment upon her release, but she failed to comply with the recommendation when she attended only ten sessions of an Intensive Outpatient Program. The caseworker testified that Mother failed to help herself by addressing her substance abuse issue as required by the case plan.
Mother did not complete a parenting class.
Mother does not have stable income or housing. Mother's whereabouts are unknown. On May 9, 2017, Mother refused to provide the caseworker with a current address but did inform her caseworker that Mother no longer lived at her parents' home.
The caseworker had additional contact with Mother on August 3, 2017 by messaging Mother on Facebook. Mother did not wish to meet with the caseworker, and informed the caseworker that Mother did not intend to appear at the Permanent Custody hearing.
The child is doing well in the foster home where she resides with a foster mother. The child plays and interacts with two other foster children and the foster mother's biological daughter, all of whom reside in the home. There are no concerns with the home or the care provided to the child in her foster home.
The child has biological siblings and she was provided visits with her sibling [J.J.] until he was placed in legal custody of the third party. The child no longer visits with her sibling [J.J.] or other siblings.
Although the caseworker remained willing to work with Father, Father remained incarcerated throughout this case with continued incarceration through his anticipated release date of April 9, 2019. Father believes he will be able to earn an early release, and has informed himself of programs that will assist him in attaining stability within 90 days of his release.
Father understands that he made poor choices that led to his incarceration.
Ms. Duris and the Guardian ad litem testified that the children [sic] need legally secure permanent placement only possible with the grant of permanent custody, and that the foster mother expressed a commitment to adopt the child.

{¶ 11} On September 19, 2017, Javis filed a notice of appeal. On appeal, he raises the following assignments of error:

{¶ 12} "[1.] The decision to award permanent custody was against the manifest weight of the evidence."

{¶ 13} "[2.] The juvenile court erred to the prejudice of the appellant by finding that the father had abandoned the child."

{¶ 14} Upon the motion of a public children services agency requesting permanent custody of a child pursuant to R.C. 2151.413, the juvenile court may grant the motion "if the court determines at the hearing held pursuant to [ R.C. 2151.414(A) ], by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and * * * [t]he child is abandoned." R.C. 2151.414(B)(1)(b) ; In re C.W. , 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 8-22.

(1) In determining the best interest of a child * * *, the court shall consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child * * *;
(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414(D).

{¶ 15} The Ohio Supreme Court "has defined clear and convincing evidence as 'that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.' " In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 16} When reviewing the weight of the evidence, the reviewing court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." (Citation omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. "In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21.

{¶ 17} For clarity, we shall address the second assignment of error first.

{¶ 18} Javis claims the juvenile court erred by finding that he had abandoned the child.

{¶ 19} "For the purposes of this chapter [R.C. Chapter 2151], a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." R.C. 2151.011(C).

{¶ 20} In the present case, it is undisputed that Javis has not seen or otherwise had any contact with H.J. since the summer of 2016 (about six months prior to the filing of the motion for permanent custody). Javis asserts that his "inability to communicate or visit with her was beyond his control" inasmuch as he "was incarcerated [and] also underwent hospitalization for mental illness during this time period." Appellant's brief at 12.

{¶ 21} The record before this court supports the finding of abandonment. Beyond failing to maintain contact with H.J., Javis has contributed nothing to her support. Javis has not attended a single hearing (except the permanent custody hearing) or case review relating to H.J. Javis was dilatory in establishing paternity of H.J. Despite being ordered to submit to a paternity test in April 2016, Javis did not formally establish paternity until 2017. Javis did not request visitation with H.J.

{¶ 22} Javis was in contact with H.J.'s mother during this time, and she would "let [him] know how the visits were going with the kids" before they eventually "just stopped talking" (about three months before the permanent custody hearing). Javis was at least aware of who the caseworker and the guardian ad litem for H.J. were, but made no effort to be involved with H.J. through them. Javis testified that he was "placed in North Coast Behavioral Hospital a couple of times" and had "been in and out of the County Jail for bond revocations and re-bonding and back and forth." Javis' legal and mental health issues do not negate his failure to make any positive effort to care for or otherwise be involved in H.J.'s life. In re Bailey Children , 5th Dist. Stark No. 2004 CA 00386, 2005-Ohio-2981, 2005 WL 1400026, ¶ 32 ("[a]lthough appellant was aware that the children had been removed from their mother's care and had been possibly placed in foster care, he admitted to making no attempt to contact SCDJFS or the mother to determine their status").

{¶ 23} The case of In re C.S. , 9th Dist. Summit No. 25344, 2010-Ohio-4463, 2010 WL 3683392, relied upon by Javis, is wholly distinguishable inasmuch as the mother was not found to have abandoned her child but, rather, "was not permitted to have any visitation or other contact with her daughter for nearly eighteen months during this case." Id. at ¶ 9. Javis cannot claim to have been denied visitation if he never sought visitation in the first place.

{¶ 24} The second assignment of error is without merit.

{¶ 25} In the first assignment of error, Javis argues in general that the decision to terminate his parental rights was against the weight of the evidence. He notes that "the State presented very little evidence in support of its motion for permanent custody." Appellant's brief at 9.

{¶ 26} The dearth of evidentiary material in the present case reflects Javis' own failure to establish any relationship with the minor child. There was sufficient evidence, particularly in regard to H.J.'s need for a legally secure permanent placement, for the juvenile court to have made a valid determination of H.J.'s best interests. The court determined "by clear and convincing evidence that the best interests of the child are served by granting permanent custody to ACCSB." The evidence duly supports this determination.

{¶ 27} The first assignment of error is without merit.

{¶ 28} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting permanent custody of H.J. to the Ashtabula County Children Services Board is affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

      The guardian testified: "I haven't seen Mr. Javis since the birth of [H.J.]. I saw him briefly with one of his other children, [J.J.], the one that was taken into temporary custody. He appeared at the Court and rapidly left before the hearing, and I haven't seen him since then." The caseworker testified: "I met with [Javis] once kind of accidental in the County Jail and talked with him there."


author: S. POWELL, P.J.

text:
    Rachel HODGE, et al., Plaintiffs-Appellants, v. Maureen CALLINAN, et al., Defendants-Appellees.
    NO. CA2017-07-114
    Court of Appeals of Ohio, Twelfth District, Warren County.
    January 22, 2018
    F. Harrison Green, Executive Park, 4015 Executive Park Drive, Suite 230, Cincinnati, Ohio 45241, for plaintiffs-appellants
    John W. Hust, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for defendant-appellee, Maureen Callinan and Maureen Callinan as Fiduciary for Estate of Victoria Arnold
    Benjamin M. Rodriguez, 50 East Business Way, Suite 410, Cincinnati, Ohio 45241, for defendants-appellees/third-party plaintiffs, Mark Charnay and Elvira Charnay
   S. POWELL, P.J.

{¶ 1} Plaintiffs-appellants, Rachel Hodge and Danielle Arnold, appeal from the decision of the Warren County Court of Common Pleas, Probate Division, granting a declaratory judgment to defendants-appellees, Mark and Elvira Charnay. For the reasons outlined below, we affirm the decision of the probate court.

{¶ 2} The present case arises from a complaint filed by appellants on March 31, 2016 and amended on April 15, 2016, in the general division of the Warren County Court of Common Pleas. The amended complaint alleged claims of breach of fiduciary duty and legal malpractice against Maureen Callinan, the administrator of the estate at issue, and a quiet title claim against appellees. On September 19, 2016, the general division transferred the case to the probate division. Appellees answered the amended complaint and filed a counterclaim against appellants, a cross-claim against Callinan, and a third-party complaint against the estate. The relevant underlying issues in this appeal concern the estate administration of decedent, Victoria Arnold ("Arnold's Estate").

{¶ 3} On August 18, 2013, Victoria Arnold died leaving three heirs, appellants and non-party, Sarah Schaeper. The sole asset in Arnold's Estate was a residence located in Warren County. Victoria owned an undivided one-half interest in the property and her brother, Dennis Brooks, owned the other one-half interest. Appellants allege Brooks hired Callinan as the attorney for Arnold's Estate without their knowledge or consent. Callinan was also the administrator of Arnold's Estate by appointment of the probate court.

{¶ 4} Appellants' amended complaint alleges that on or around December 1, 2014, Callinan listed the property for sale for $180,000 and cited Brooks as the only party having an ownership interest in the property. In support of the list price, Callinan submitted to the probate court the 2014 auditor's tax assessment. However, appellants assert that in January 2015 a newer assessment was completed, which valued the property at $176,110. Appellants'

amended complaint alleges an offer for the property was made and accepted in December 2014, but the sale was not completed due to financing issues with the prospective purchaser. Appellants contend Callinan failed to communicate this information to them and that appellants discovered it online.

{¶ 5} In January 2015, appellees submitted an offer of $160,000, which Callinan accepted on behalf of Arnold's Estate. Appellants allege that despite their exhaustive efforts, they were unable to obtain information from Callinan regarding the sale and had to read the details of the sale online. Appellants further assert that in the time between acceptance of appellees' offer and the closing on February 26, 2015, other nearby properties sold for amounts between $197,000 and $226,000. Title to the property from Arnold's Estate transferred to appellees on the same date as closing. On March 13, 2015, the probate court approved the estate inventory, valuing the property at $163,060. Appellants did not object to the inventory.

{¶ 6} Appellants allege that beginning in April 2015, they had trouble communicating with Callinan regarding a final accounting for Arnold's Estate. Appellants further allege they visited Callinan's office on June 1, 2015 where "Callinan held their checks in the air and told them if they wanted the money they would need to sign consent forms [to sell the property] before she would disburse the funds." In turn, Brooks and appellants signed the consent forms to sell the property, which Callinan filed with the probate court the next day. Arnold's Estate distributed the net proceeds from the sale to the heirs. Following Callinan's filing of the final account, appellants filed exceptions to the final account. The probate court held hearings on the exceptions in November 2015 and February 2016, and scheduled a third hearing on May 2, 2016.

{¶ 7} On May 19, 2017, appellees moved for declaratory judgment to declare the rights of all parties as to their interests in the property appellees purchased from Arnold's Estate. On June 20, 2017, the probate court granted appellees' motion for declaratory judgment and entered a final appealable order.

{¶ 8} Appellants timely appealed the decision of the probate court.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED IN GRANTING DECLARATORY JUDGMENT TO APPELLEE MARK AND ELVIRA CHARNAY BECAUSE THE ESTATE WAS CLOSED, DEPRIVING THE COURT OF JURISDICTION TO RENDER DECLARATORY JUDGMENT.

{¶ 11} Appellants argue the filing of the final accounting by Callinan and the probate court's approval of Callinan's attorney fees establish that the decedent's estate was closed on August 12, 2015. Appellants further contend Appellees filed their action for declaratory judgment after this date; therefore, the probate court lacked jurisdiction to grant declaratory judgment in favor of appellees because the questions posed did not arise in the administration of a current estate.

{¶ 12} A probate court is a court of limited jurisdiction limited to actions permitted by statute and by the constitution. Corron v. Corron , 40 Ohio St.3d 75, 531 N.E.2d 708 (1988), paragraph one of the syllabus. Declaratory judgment actions provide "a means by which parties can eliminate uncertainty regarding their legal rights and obligations" and "may be filed for the purposes of deciding an actual controversy."

Calvary Industries, Inc. v. Coral Chem. Co. , 12th Dist. Butler No. CA2016-12-233, 2017-Ohio-7279, 2017 WL 3588436, ¶ 12, citing Travelers Indemn. Co v. Cochrane , 155 Ohio St. 305, 98 N.E.2d 840 (1951). Courts liberally construe declaratory judgment statutes. Calvary at ¶ 12.

{¶ 13} Statutes that provide procedures for declaratory judgment do not extend the subject matter jurisdiction of a probate court, but rather, extend the power of the court to grant declaratory relief within its respective jurisdiction. Everhart v. Everhart (In re Estate of Everhart) , 12th Dist. Fayette Nos. CA2013-07-019 and CA201309026, 2014-Ohio-2476, 14 N.E.3d 438, ¶18, citing Ryan v. Tracy , 6 Ohio St.3d 363, 366, 453 N.E.2d 661 (1983). "In other words, declaratory judgment statutes provide an additional remedy which may be granted by a court but they do not extend the jurisdiction as to the subject matter upon which a court may act." Id.

{¶ 14} Pursuant to R.C. 2101.24(A)(1)(l), the probate court has exclusive jurisdiction "[t]o render declaratory judgments, including, but not limited to, those rendered pursuant to [R.C.] 2107.084." Under R.C. 2721.05(C), "[a]ny person interested as or through an * * * administrator, * * * in the administration * * * of the estate of a decedent * * * may have a declaration of rights or legal relations in respect thereto * * * [t]o determine any question arising in the administration of the estate * * *." Collectively, the statutes provide the probate court exclusive jurisdiction over declaratory judgment actions to determine any question arising out of the administration of an estate. Treadway v. Free Pentecostal Pater Ave. Church of God, Inc. , 12th Dist. Butler No. CA2007-05-139, 2008-Ohio-1663, 2008 WL 921606, ¶ 28.

{¶ 15} We review a trial court's decision regarding declaratory judgment actions for an abuse of discretion. Calvary at ¶ 13. An abuse of discretion is more than an error of law or judgment. Rather, it suggests the "trial court's decision was unreasonable, arbitrary or unconscionable." State v. Perkins , 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, 2005 WL 3359153, ¶ 8. "A review under the abuse-of-discretion standard is a deferential review." State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.

{¶ 16} Appellants contend the estate was no longer pending thereby divesting the probate court of jurisdiction because Callinan filed a final accounting and the probate court approved her attorney fees. In support of their assertion, appellants cite a Third District opinion holding a probate court only "ha[s] the power to declare rights and status and the legal relations of the parties interested as heirs, executors, etc. in an estate * * * after the administration of the estate has been commenced and while it is still pending." See Weathington v. Hill , 3d Dist. Marion No. 9-11-16, 2011-Ohio-5875, 2011 WL 5517275, ¶ 23 (finding questions posed after the administration of an estate is fully settled and the estate is closed do not arise in the administration of a pending estate).

{¶ 17} Appellants correctly assert that a question must be posed arising out of the administration of a pending estate for a probate court to render declaratory judgment. Appellants also correctly assert that an estate remains open until the administrator or executor files a final account, which is approved and settled by the probate court, and the administrator or executor is discharged. Eger v. Eger , 39 Ohio App.2d 14, 18, 314 N.E.2d 394 (8th Dist.1974), citing R.C. 2109.30 and 2109.32. While Callinan filed a final account and the probate court approved her attorney fees, the estate in question remains open.

{¶ 18} Appellants filed several exceptions to the final account and the probate court heard argument on appellants' exceptions. The probate court has neither approved and settled the final account nor has it discharged Callinan as administrator. Therefore, the estate remains open and the questions posed by appellees in their declaratory judgment action arose in the administration of the pending estate. In turn, the probate court had statutory authority to grant or deny declaratory relief. Accordingly, the probate court did not abuse its discretion in rendering such relief and appellants' first assignment of error is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT ERRED IN CONSIDERING THE SALE VALID BECAUSE THE CONSENT FORM FOR THE SALE OF CONDO WAS SIGNED UNDER DURESS.

{¶ 21} Appellants contend the probate court erred in finding appellants ratified the sale of the property because they lacked full knowledge of the facts related to the sale. Appellants further contend they were under duress when they signed the consent forms for the sale because Callinan threatened to withhold the proceeds of the sale without their signatures. Additionally, appellants argue Callinan violated her fiduciary duties to the heirs due to a conflict of interest and by failing to act primarily for the benefit of the heirs with respect to the sale of the property.

{¶ 22} " R.C. 2127.01, in pertinent part, requires all proceedings for the sale of lands by an administrator to be filed in accordance with R.C. 2127.01 to 2127.43." In re Estate of Porter , 10th Dist. Franklin No. 17AP-414, 2017-Ohio-8840, 2017 WL 6016631, ¶ 14. Pursuant to R.C. 2127.011, an administrator may dispose of real property by obtaining written consent for power of sale from all the heirs and filing each consent with the probate court. Id. Additionally, "[a]ny sale under a power of sale authorized pursuant to [the statute must] be made at a price of at least eighty per cent of the appraised value, as set forth in an approved inventory." R.C. 2127.011(A)(2).

{¶ 23} Appellants do not dispute the heirs provided written consent for power of sale to Callinan; therefore, the first statutory requirement is not at issue. However, appellants dispute the circumstances under which Callinan obtained such written consents, which we will further discuss below. With respect to the second statutory requirement, the approved inventory listed the property at $163,060. Appellees purchased the property for $160,000. Thus, the sale price is at least eighty percent of the appraised value in the approved inventory. Accordingly, the probate court did not err in finding Callinan met the statutory requirements to dispose of the property.

{¶ 24} Next, we turn to appellants' arguments that they were without sufficient knowledge to consent to the sale of property, the consents were obtained under duress, and Callinan breached her fiduciary duty to the heirs. The probate court found appellants ratified the sale of the property by Arnold's Estate to appellees by signing the written consents. "Ratification has been defined as the approval by act, word, or conduct of that which was improperly done." AFCO Credit Corp. v. Brandywine Ski Ctr. , 81 Ohio App.3d 217, 221, 610 N.E.2d 1032 (9th Dist.1992). Ratification cannot occur unless the principal has full knowledge and understanding of the acts performed by the agent.

Braden v. State Farm Mut. Auto. Ins. Co. , 92 Ohio App.3d 777, 781, 637 N.E.2d 109 (12th Dist.1994).

{¶ 25} The probate court made its ratification finding pursuant to Mitchell v. Dunlap , 10 Ohio 117 (1840). In Mitchell , the Ohio Supreme Court held that an executor's sale of property to himself may be lawfully completed by the subsequent assent and ratification of the heirs. Id. at 120-21 ("the question here is, not whether the sale was originally good, but whether it may not be ratified by those whose interests are conveyed"). The court found that the heir's post-sale written consent ratified the sale and could not be later withdrawn.

{¶ 26} Likewise, the heirs in this case signed post-sale written consents for power of sale and the probate court did not err by finding the consents could not later be withdrawn. Appellants contend Callinan failed to supply them with full knowledge of the facts of the sale to ratify said sale and that Callinan placed them under duress to induce their signatures. However, appellants fail to demonstrate they lacked full knowledge of the sale of the property before signing the written consents. Rather, taking the allegations in appellants' amended complaint as true, appellants' displeasure simply lies with the communicatory relationship between them and Callinan. Even assuming communication between appellants and Callinan fell below appellants' expectations, it does not demonstrate they lacked full knowledge of the sale before signing the written consents.

{¶ 27} Rather, appellants concede they had information regarding the original listing, the first failed sale due to financing issues with the purchaser, the second successful offer and acceptance, the date of closing, had not objected to the inventory and appraisal sheet, and that Callinan filed a final accounting. Appellants' discontent with the source of portions of this information does not mean they were unaware of the information at the time of ratification. Rather, appellants signed the written consent forms and accepted the proceeds from the sale of the property. An informed principal must dissent within a reasonable time and provide notice of such dissent, otherwise, the principal's assent and ratification is presumed. United State Rolling Stock Co. v. Atlantic & G.W.R. Co. , 34 Ohio St. 450, 462 (1878). Moreover, "[a]n acceptance of the benefits of the transaction imposes the obligation to assume its burdens and operates to confirm it as a whole. And a ratification once made becomes as irrevocable, obligatory, and binding as if the act of the agent were previously authorized." Id. at 463. Thus, appellants had full knowledge of the information regarding the sale of the property and subsequently assented and ratified said sale by signing the written consents.

{¶ 28} Appellants' remaining arguments that they were under duress when they signed the consents and that Callinan breached her fiduciary duties are overruled. Appellants fail to cite any facts to demonstrate how these claims involve appellees and the issues underlying this appeal.

{¶ 29} Accordingly, appellants' second assignment of error is overruled.

{¶ 30} Judgment affirmed.

RINGLAND and PIPER, JJ., concur.

      Pursuant to Loc.R. 6(A), we have sua sponte removed this appeal from the accelerated calendar.