¶1concurring in part and dissenting in part.
¶2{¶ 17} I concur in the majority opinion that this case should be remanded for a new trial. Nevertheless, I dissent from the majority’s disposition of the appellant’s objection to the trial court’s failure to instruct the jury on the use of nondeadly force in defense of another. The appellant complains that the court erred by failing to give this alternative instruction. I agree with the trial court that only the deadly-force instruction was justified. The Eleventh District’s analysis of this issue is persuasive:
In order for the jury to determine that [appellant] was guilty of felonious assault, it had to come to the conclusion that he knowingly caused serious physical harm to another. R.C. 2903.11(A)(1). In order for [appellant] to have succeeded on the nondeadly force version of self-defense, had the definition been given, the jury would have had to find that [appellant] “was justified in using force not likely to cause death or great bodily harm.” 4 Ohio Jury Instructions (2006), Section 411.33. … If the terms “serious physical harm” and “great bodily harm” do not have identical definitions, their definitions are substantially similar. Thus, if the jury were to find that the force used by [appellant] was not likely to cause great bodily harm, that finding would have been inconsistent with its prior determination that [appellant] was aware his conduct would probably cause serious physical harm.
¶3State v. Jeffers, Lake App. No. 2007-L-011, 2008-Ohio-1894, 2008 WL 1777846, ¶ 81. Consequently, I find that the trial court did not err by failing to instruct the jury about the use of nondeadly force in defense of another.
¶4APPENDIX
¶5Assignments of Error
{¶ 18} “I. Defendant was denied due process of law when the court incorrectly informed the jury concerning self-defense and defense of others.
{¶ 19} “II. Defendant was denied due process of law when the court gave confusing and conflicting instructions concerning the defense of others and failed to define the preponderance of evidence.
{¶ 20} “HI. Defendant was denied due process of law when the court instructed the jury on the ambiguous and unproven concept of flight.
{¶ 21} “IV. Defendant was denied his right to a speedy trial.
{¶ 22} ‘V. Defendant was denied a fair trial by reason of improper prosecutorial argument.
{¶ 23} ‘VI. Defendant was denied due process of law when the court overruled his motions for judgment of acquittal and the verdict is contrary to the manifest weight of the evidence.
{¶ 24} “VII. Defendant was denied due process of law when the court immediately after receipt of the verdict found defendant guilty of a repeat violent offender specification without evidence being offered or argument by counsel.
{¶ 25} ‘VIII. Defendant was denied due process of law when he was sentenced as a repeat violent offender.
{¶ 26} “IX. Defendant was denied due process of law when the court based its determination on the repeat violent offender specification on claims neither alleged nor proven.
{¶ 27} “X. Defendant was denied due process of law when he was convicted and sentenced under an unconstitutional repeat violent offender specification.
{¶ 28} “XI. Defendant was unconstitutionally sentenced as a repeat violent offender by reason of Ex Post Facto legislation criminalizing past conduct.
{¶ 29} “XII. Defendant was unconstitutionally subjected to multiple punishments in violation of the Ohio and Federal Constitutions.
{¶ 30} “XIII. Defendant was denied effective assistance of counsel.”
¶7. I recognize that this conclusion conflicts with our decision in State v. Pannetti (Sept. 3, 1998), Cuyahoga App. No. 73044, 1998 WL 564007. However, the decision in Pannettidid not consider that an offender could not knowingly cause serious physical harm (establishing felonious assault) by using force that was "not likely to cause death or great bodily harm.” Therefore, I find the rationale of Jeffers to be more persuasive than Pannettiin the context of a felonious assault charge. The result might be otherwise in a case of a simple assault. See, e.g., State v. Perez (1991), 72 Ohio App.3d 468, 472, 594 N.E.2d 1041.