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State v. Smith12/9/2004
endant is not in a position to claim self-defense if he sought trouble and armed with a dangerous weapon, he provoked a fight or renewed a fight that had broken off and did not attempt to avoid it or leave the scene of the trouble." (Tr. Vol. II, 336.) This language is nearly verbatim to that employed by the prosecution, and may have reinforced in the jury's mind the false impression that defendant was not privileged to leave the bedroom and use the force reasonably necessary to expel Williams from his home.
{ } A criminal defendant has a right to expect that the trial court will give complete jury instructions on all issues raised by the evidence. Williford, supra, at 251. The problem with the trial court's instruction on self-defense is not that it was incorrect per se, but that it was inadequate for the task of placing before the jury for its consideration the fact that defendant was not required to remain in the bedroom and could use the force necessary to repel Williams from his home. Considering that the state argued that defendant should have remained in the bedroom, the jury, which was not instructed on the Peacock or Cuttiford rules, may have incorrectly believed that defendant had the duty to remain in the bedroom and take no action to repel Williams from the apartment. Under the particular facts and circumstances of this case, the prosecution's misstatement of the law, uncured by the trial court's failure to properly instruct the jury, admittedly exacerbated by the failure of defense counsel to object, constitutes plain error, as it cannot be presumed that the jury would not have acquitted defendant had it been properly instructed. The second assignment of error is well-taken.
{ } Defendant's third, fourth, and fifth assignments of error raise issues regarding prosecutorial misconduct, ineffective assistance of counsel, and improper sentencing, respectively. The resolution of defendant's first and second assignments of error has rendered these assignments of error moot. See App.R. 12(A)(1)(c).
{ } For the foregoing reasons, the first and second assignments of error are sustained, rendering the third, fourth and fifth assignments of error moot. Accordingly, the judgment of the Franklin County Court of Common Pleas is reversed and the matter is remanded for a new trial.
Judgment reversed and cause remanded.
BRYANT and KLATT, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.
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