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State v. Gomez

Court of Appeals of Ohio, Twelfth District

July 1, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
ERIC NICOLAS GOMEZ, Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-10-1789

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, for plaintiff-appellee

Scott N. Blauvelt, for defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Eric Nicolas Gomez, appeals from his conviction in the Butler County Court of Common Pleas for one count of felonious assault. For the reasons outlined below, we affirm.

{¶ 2} During the early morning hours of September 11, 2011, an altercation occurred inside Club 513 located in Hamilton, Butler County, Ohio, between Gomez, Luis Geurrero-Mejias, Jorge Manuel Guerrero-Mejias, Luis' brother, as well as Jose Luis Corcino, Johelvel David Robles de Jesus, Ernest Carvajal, Eddy Polanco, and Jason Lebron Mesa. The fight was apparently in retaliation for Johelvel's alleged affair with Jorge's girlfriend.

{¶ 3} During the ensuing melee, Luis is alleged to have picked up a nearby barstool when he began swinging it at Gomez and the other club patrons. However, instead of fleeing from the scene, Gomez testified that he discovered a machete on the floor as he was backing towards the door, picked it up, turned to face Luis, and began "defending" himself against the oncoming attack. As a result, the machete struck Luis severing his right index finger, thereby requiring it to be amputated. Gomez, however, did not suffer any injuries in the brawl.

{¶ 4} Gomez was subsequently charged with one count of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony. Gomez was later found guilty following a jury trial and sentenced to three years in prison. Gomez now appeals from his conviction, raising a single assignment of error for review.

{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION IN DECLINING TO INSTRUCT THE JURY ON SELF-DEFENSE AS AN AFFIRMATIVE DEFENSE.

{¶ 6} In his single assignment of error, Gomez argues the trial court erred by refusing his request to instruct the jury on the affirmative defense of self-defense. We disagree.

{¶ 7} "Jury instructions are matters left to the sound discretion of the trial court." State v. Tucker, 12th Dist. No. CA2010-10-263, 2012-Ohio-139, ¶ 23. This court reviews the trial court's decision refusing to provide the jury with a requested instruction for an abuse of discretion. State v. Gray, 12th Dist. No. CA2010-03-064, 2011-Ohio-666, ¶ 23, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

{¶ 8} The burden of going forward with evidence of self-defense and the burden of proving self-defense by a preponderance of the evidence is upon the accused. State v. Jones, 12th Dist. No. CA2012-04-077, 2013-Ohio-654, ¶ 45. To establish self-defense in a case where a defendant used deadly force, such as the case here, "the defendant must prove: (1) he was not at fault in creating the situation giving rise to the affray; (2) he had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force; and (3) he did not violate any duty to retreat or avoid the danger." Gray, 2011-Ohio-666, ¶ 43, citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus. If a defendant fails to prove any one of these elements, he has failed to demonstrate he acted in self-defense. State v. Voss, 12th Dist. No. CA2006-11-132, 2008-Ohio-3889, ¶ 54; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 72.

{¶ 9} A trial court does not err in failing to instruct the jury on self-defense where the evidence is insufficient to support the instruction. State v. Rice, 12th Dist. No. CA2003-01-015, 2004-Ohio-697, ¶ 26, citing State v. Palmer, 80 Ohio St.3d 543, 564 (1997). In turn, if the evidence brought forward generated only mere speculation of a self-defense claim, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury is unwarranted. State v. Martin, 12th Dist. Nos. CA2002-10-111, CA2002-10-115, CA2002-10-116, 2003-Ohio-6551, ¶ 9. In determining whether a defendant has introduced sufficient evidence to warrant a jury instruction on self-defense, "the test to be applied is whether the defendant has introduced evidence that, if believed, is sufficient to raise a question in the minds of reasonable persons concerning the existence of the offense." State v. Ford, 12th Dist. No. CA2009-01-039, 2009-Ohio-6046, ¶ 19.

{¶ 10} Initially, as did the trial court before us, we question whether the affirmative defense of self-defense applies to the case as bar. As this court has stated previously, "the self-defense affirmative defense generally admits the facts claimed by the prosecution and then relies on independent facts or circumstances which the [appellant] claims exempt [him] from liability." State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535, ¶ 29, citing State v. Poole, 33 Ohio St.2d 18, 19 (1973). In this case, however, ...


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