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State v. Smith12/9/2004
r of the living room.
{ } On August 5, 2003, defendant was indicted on one count of aggravated murder with a firearm specification in violation of R.C. 2903.01 and 2941.145, respectively, and two counts of having a weapon while under disability in violation of R.C. 2923.13.
{ } At the close of the state's evidence, the trial court dismissed both having a weapon while under disability charges. Following closing arguments, the trial court instructed the jury on the charges of aggravated murder, the lesser included offenses of murder and voluntary manslaughter, and the affirmative defense of self-defense. The jury found defendant not guilty of aggravated murder, but guilty of voluntary manslaughter in violation of R.C. 2903.03 and the specification that the offense was committed with a firearm in violation of R.C. 2941.145. The trial court sentenced defendant to ten years imprisonment on the voluntary manslaughter charge with an additional three years for use of a firearm.
{ } By his first assignment of error, defendant asserts that the trial court erroneously instructed the jury that " he affirmative defense of self-defense is not available for the lesser [included] offense of voluntary manslaughter." (Tr. Vol. II, 337.) Defendant further contends the prosecution compounded the trial court's error by improperly asserting in closing argument that " elf-defense does not apply to voluntary [manslaughter]." (Tr. Vol. II, 287.) Defendant did not object to either the trial court's instruction or the prosecution's statement. The state concedes that both the trial court's instruction and the prosecution's argument were erroneous, but contends that such errors do not rise to the level of plain error because the evidence at trial was insufficient to warrant a jury instruction on self-defense.
{ } It is well-settled that a failure to object to jury instructions before the jury retires, absent plain error, constitutes a waiver. State v. Williford (1990), 49 Ohio St.3d 247, 251. Similarly, a failure to object to the prosecution's closing argument, absent plain error, constitutes a waiver. State v. Slagle (1992), 65 Ohio St.3d 597, 604. The plain error doctrine permits a reviewing court to take note of plain errors or defects affecting substantial rights, even though such errors were not brought to the attention of the trial court. See Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91, 94. The doctrine is to be used cautiously and only under exceptional circumstances to prevent a manifest miscarriage of justice. Id. Plain error will not be found unless the outcome of the trial would clearly have been different. Williford, at 253; Slagle, supra.
{ } Under Ohio law, self-defense is an affirmative defense, which the defendant must prove by a preponderance of the evidence. R.C. 2901.05; Williford, at 249. An accused is entitled to claim self-defense after satisfying three conditions. First, the accused must not be at fault in creating the situation giving rise to the dispute. Id. Next, the accused must have had an honest belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of force. Id. The Ohio Supreme Court has stated that this test is both objective and subjective. State v. Thomas (1997), 77 Ohio St.3d 323, 330. The jury "first must consider the defendant's situation objectively, that is, whether, considering all of the defendant's particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, reasonably believed was in imminent danger. * * * Then, if the objective standard is met, the jury must determine if, subjectively,
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