# State v. Napier

> Ohio Court of Appeals · August 16, 1995 · 105 Ohio App. 3d 713

URL: https://www.frixlaw.com/law-library/cases/3749700

## Case

- **Full name:** The STATE of Ohio, Appellee, v. NAPIER, Appellant
- **Court:** Ohio Court of Appeals
- **Decided:** August 16, 1995
- **Citations:** 105 Ohio App. 3d 713; 664 N.E.2d 1330
- **Precedential status:** Published
- **Opinion:** Dissent by Gorman
- **Judges:** Bettman, Doan, Gorman
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3749700

## Opinion text

*727
Gorman, Presiding Judge,
dissenting.
Reacting to the mandatory sentence of confinement imposed on a sixty-one-year-old woman, the majority, left to its own devices, has reversed the jury’s verdict, but not on any claim of error raised by Napier either in the trial court or here.
Napier’s assignment of error, as set out in her brief, challenges the third prong of the test for self-defense in
State v. Robbins
(1979), 58 Ohio St.2d 74 , 12 O.O.3d 84 , 388 N.E.2d 755 . Specifically, she claims that a portion of the instruction by the court, included in 4 Ohio Jury Instructions (1994), Section 411.31, stating “the defendant must not have violated any duty to avoid the danger,” conveyed to the jury the mistaken notion that she had a duty to retreat while she was standing on her front porch. The basis for her objection and recommendation to the trial court was to modify the standard instruction by omitting this third prong from the self-defense instruction. The instruction, without Napier’s modification, was a correct statement of the law defining self-defense, and therefore, the trial court’s refusal to delete the third prong approved in
State v. Robbins
was not error.
The majority has recast Napier’s assignment of error, in light of
State v. Williford
(1990), 49 Ohio St.3d 247 , 551 N.E.2d 1279 . The majority
sua sponte
finds that the trial court should have expanded its instruction on self-defense by including an additional definition under the
Peacock
rule to clarify when there is a “duty to retreat or to avoid the danger.” When, as here, counsel did not apprise the trial court of the reasons, identified after the fact by the majority as an objection to the instruction, the effect is to require trial judges to read counsel’s mind and divine the correct ruling based upon what counsel intended or should have intended.
Although Crim.R. 52(B) allows an appellate court to notice
sua sponte
plain error, invocation of the rule is limited to “exceptional circumstances in order to prevent a manifest miscarriage of justice.”
State v. Cooperrider
(1983), 4 Ohio St.3d 226, 227 , 4 OBR 580, 580-581, 448 N.E.2d 452, 453 . Plain error not of constitutional magnitude exists where it appears “in the record that an error occurred and that except for that error the outcome of the trial would have been different.”
State v. Colwell
(Dec. 7, 1994), Hamilton App. No. C-930806, unreported, 1994 WL 680131 ;
State v. Long
(1978), 53 Ohio St.2d 91 , 7 O.O.3d 178 , 372 N.E.2d 804 . The question is whether the alleged error “substantially affected the outcome of the trial.”
State v. Slagle
(1992), 65 Ohio St.3d 597, 604-605 , 605 N.E.2d 916, 925 . Nonconstitutional error is harmless if there is substantial other evidence to support the guilty verdict.
State v. Webb
(1994), 70 Ohio St.3d 325, 335 , 638 N.E.2d 1023, 1032 ;
State v. Mabrey
(May 17, 1995), Hamilton App. No. C-940218, unreported, 1995 WL 298194 .
*728
This appeal is distinguishable from
State v. Williford, supra.
In
Williford ,
counsel objected to the self-defense instruction on grounds that the trial judge did not include the
Peacock
rule. This fact was the basis of the Supreme Court’s explanation why the error was preserved under Crim.R. 30(A). Here, Napier did not preserve the error as provided in Crim.R. 30(A) because she did not state “specifically the matter to which [s]he objects and the grounds of [her] objection.” Her objection, both in the trial court and on appeal, was on a different ground than that now addressed
sua sponte
by the majority. Cursory review of the record demonstrates that the jury rightfully rejected self-defense by concluding that Napier’s use of force in shooting the victim was unreasonable. No matter how many times this case is tried or retried the verdict inevitably will be the same. Notwithstanding the majority’s recasting of the assignment of error, the instruction was simply a recitation of the defense of self-defense from Ohio Jury Instructions upon which every trial judge relies. See,
e.g., Kurzner v. Sanders
(1993), 89 Ohio App.3d 674, 679 , 627 N.E.2d 564, 567 . Moreover, this instruction has been approved by the Supreme Court of Ohio.
State v. Koss
(1990), 49 Ohio St.3d 213, 215-216 , 551 N.E.2d 970, 973 ;
State v. Williford; State v. Robbins,
paragraph two of the syllabus.
The practice by an intermediate appellate court to raise new issues
sua sponte
is contrary to App.R. 12(A)(1)(b), which admonishes a reviewing court to “determine the appeal on its merits on the assignments of error set forth in the briefs.” The second chance for Napier by the generosity of the majority’s newly formulated issue interjects unfairness and unpredictability for the trial judge as well as encourages an erosion of traditional considerations favoring finality.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3749700. Public record. Not legal advice.