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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SELF-DEFENSE (054)

Also see Affirmative Defenses; Assault; Deadly Weapons; Battered Woman Syndrome.

 

Elements

Duty to retreat

Defendant's state of mind

Defense of another

Jury instructions

Other issues

Elements

State v. Turner, 171 Ohio App. 3d 82, 2007-Ohio-1346, ¶25 -- While the slayer may not be at fault in creating the situation giving rise to the affray, this does not bar raising self-defense on the basis that the defendant was engaged in unlawful activity, here at attempt to purchase marijuana.

State v. Gillespe, 172 Ohio App. 3d 304, 2007-Ohio-3439 -- Defendant believed the victim pocketed his drugs and knew the victim was armed with a knife. After the victim left the defendant's home the defendant followed armed with a shotgun, and subsequently shot the victim whom he claimed came at him with a knife. Court erroneously refused to instruct on self defense. Despite the illegality of defendant's drug possession and the fact he could have ended the situation by staying home, his conduct was not wrongful to the degree he was at fault in creating the situation. The defense is available even if the defendant played a part in the situation giving rise to the affray.

Cleveland v. Welms, 169 Ohio App. 3d 600, 2006-Ohio-6441, ¶19 -- "To prevail on a nondeadly-force affirmative defense, one must show by a preponderance of the evidence that (1) he was not at fault in creating the situation, (2) he reasonably believed that some force was necessary to defend himself against the imminent use of unlawful force, and (3) the force used was not likely to cause death or great bodily harm. Columbus v. Dawson (1986), 22 Ohio App. 3d 141, 142...Under Ohio law there is no duty to retreat, even if it is possible to do so, before using nondeadly-force. Id."

State v. Greene, Mahoning App. No. 02 CA 122, 2004-Ohio-1540 -- A victim's violent nature is not an essential element of self-defense.  Specific instance of violent nature are admissible to show the defendant's state of mind, not the victim's character.

State v. McLeod (1948), 82 Ohio App. 155, 157 -- When a person is entitled to use non-deadly force in self-defense: "(E)very man has the right to defend himself and his property by the use of such force as circumstances require to protect himself against such danger as he has good reason to apprehend, and the measure of that force depends on the nature of the assault taken together with all other circumstances...and it is only when one uses a greater degree of force than is necessary..that is not justifiable on the ground of self defense." Also see State v. Fox (1987), 36 Ohio App. 3d 78; Akron v. Dokes (1986), 31 Ohio App. 3d 24.

State v. Robbins (1979), 58 Ohio St. 2d 74 -- Paragraph two of the syllabus sets forth the elements of self-defense in a homicide case or other case where deadly force has been used: "To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that 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 such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. (State v. Melchior 56 Ohio St. 2d 15, approved and  followed.)" Also see State v. Williford (1990), 49 Ohio St. 3d 247, 249.

Martin v. Ohio (1987), 480 U.S. 228 -- It is not a violation of due process for Ohio to place the burden of proving self defense, by a preponderance of the evidence, upon the accused. State v. Martin (1986), 21 Ohio St. 3d 91, affirmed.

State v. Jackson (1986), 22 Ohio St. 3d 281 -- As long as the prosecution is required to prove the elements of a crime, there is no additional constitutional requirement to prove the absence of self-defense.

State v. Seliskar (1973), 35 Ohio St. 2d 95, 96 -- "If a defendant cannot provide evidence on the issue of self-defense other than his own testimony, then, in order to avail himself of the defense, he must testify. In such event, the choice is that of the defendant, and once he has decided to rely on self-defense and is required by the circumstances to testify in order to prove that defense, he necessarily must waive his constitutional right to remain silent."

State v. Caitlin (1990), 56 Ohio App. 3d 75 -- Headnote 2: "Because of the relative ease and rapidity with which police may be summoned to assist in the forcible ejection of a trespasser, the use of deadly force to eject a trespasser from one's home is not appropriate in the absence of a reasonable fear for the homeowner's safety." (Defendant's drunken brother jumped into the path of a bullet during a family argument.) Also see State v. Caldwell (1992), 79 Ohio App. 3d 667.

State v. Hardy (1978), 60 Ohio App. 2d 325, 328-330 -- Because the right to self-defense is guaranteed by the constitution, the possessing weapons under a disability statute does not restrict the ability of a person under disability to act in self-defense.

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Duty to retreat

State v. Kozlosky, 195 Ohio App. 3d 343, 2011-Ohio-4814 – Homeowner shot tenant’s ex boyfriend inside the house as he was beating her up, and as he appeared to be drawing a weapon. Applying the Castle Doctrine, conviction was against the manifest weight of the evidence, and the state failed to meet its burden of proving he defendant did not act in self defense. As sufficiency review does not apply to affirmative defenses, case is reluctantly remanded for a new trial.

State v. Ward, 168 Ohio App. 3d 701, 2006-Ohio-4847 -- Plain error to instruct on a duty to retreat where the claimed act of self-defense took place in the home. At ¶36 the court notes inclusion of a duty to retreat has the potential of confusing or misleading the jury because it had a meaning opposite of a correct instruction which would have informed the jury that there was no duty to retreat.

State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, ¶71-77 -- Defendant stabbed his cellmate and claimed self-defense. Error to instruct on a duty to retreat. Defendant was obligated by law to occupy the cell, and retreat from locked cell was never an option.

State v. Miller, 149 Ohio App. 3d 782, 2002-Ohio-5812 -- Angry stranger threatened defendant who ran into apartment building, shutting main door. Stranger gained entry otherwise and threw open the door of appellant's apartment. Defendant fired a warning shot which struck door frame. Self-defense proven as a matter of law. Defendant was under no duty to retreat further. Provided a person is entitled to use deadly force, the choice of weapon is irrelevant.

State v. Morris, Monroe App. No. 02 MO 12, 2004-Ohio-6810 -- There is no duty to retreat before defending oneself through the use of non-deadly force. A court should avoid language within OJI that might imply a duty to retreat.

State v. Williford (1990), 49 Ohio St. 3d 247 -- Paragraph two of the syllabus: "There is no duty to retreat from one's own home. (State v. Peacock [1883], 40 Ohio St. 333, approved and followed.)" Also see State v. Jackson (1986), 22 Ohio St. 3d 281, 283; State v. Caitlin (1990), 56 Ohio App. 3d 75; State v. Copeland (April 13, 1993), Franklin Co. App. No. 92AP-1486, unreported (1993 Opinions 1423).

State v. Thomas (1997), 77 Ohio St. 3d 323 -- Syllabus: "There is no duty to retreat from one's own home before resorting to lethal force in self-defense with an equal right to be in the home."

State v. Wenger (1979), 58 Ohio St. 2d 336 -- Intervention in a struggle between others places the defendant in the same position as the person he assists. If the person he aids was resisting a lawful arrest, intervenor is guilty of assault.

Sharp v. State (1850), 19 Ohio 379 -- Because of the special relationship, a son may come to aid of his father, if the father's actions are without fault. Also see State v. Sheets (1926), 115 Ohio St. 308 (husband comes to defense of wife).

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Defendant's state of mind

State v. Powell, 176 Ohio App. 3d 28, 2008-Ohio-1316, ¶21 – "A person who, through no fault of her own, is assaulted in her own home may stand her ground, meet force with force, and if necessary, kill her assailant, without any duty to retreat. (State v. Thomas, 77 Ohio St. 3d at 327…However, if defendant was at fault in creating the situation that gave rise to the shooting (of the victim), then she had a duty to retreat even though the incident occurred inside her own home".

State v. Barnes 94 Ohio St. 3d 21, 2002-Ohio-68 -- Syllabus: "A defendant asserting self-defense cannot introduce evidence of specific instances of a victim's conduct to prove that the victim was the initial aggressor. (Evid. R. 404[A] and 405, construed and applied.) A defendant may still introduce character evidence by reputation or opinion testimony pursuant to Evid. R. 405(A), but 405(B) is more restrictive. Also, if the defendant expressed fear of the victim to others it may be admissible as a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition" pursuant to Evid. R. 803(3).

Nelson v. State (1932), 42 Ohio App. 252, 254 -- Whether a defendant is justified in defending himself against an anticipated attack must be measured from his own perspective. Also see State v. Cope (1946), 78 Ohio App. 429, 438.

State v. Blackmon (1998), 131 Ohio App. 3d 465 -- Events happening after the incident in question are irrelevant.

State v. Mabry (1982), 5 Ohio App. 3d 13 -- In determining whether the provocation was reasonably sufficient to left the defendant using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time.

Bucyrus v. Frawley (1988), 50 Ohio App. 3d 25 -- Verbal harassment alone is not enough to require an instruction on self-defense in a domestic violence prosecution. Nothing in the language quoted would have caused the defendant to fear for his own safety. Also see State v. Stepp (November 20, 1979), Franklin Co. App. No. 79AP-231, unreported (1979 Opinions 3431, 3439)

State v. Austin (1996), 115 Ohio App. 3d 761, 764-765 -- A defendant claiming self-defense may testify as to instances of the victim's prior conduct which tend to show why he believed it was necessary to defend himself. This does not open the door for the prosecutor to go into the defendant's character, which may be done only as allowed by Evid. R. 404.

State v. Cuttiford (1994), 93 Ohio App. 3d 546 -- (1) At 553-555: A defendant may testify as to prior instances of the victim's violent behavior to establish both his own state of mind at the time of the incident and to show that the alleged victim was more likely the aggressor. Other witnesses may testify as to the reputation in the community of the victim for violent behavior, but may not testify regarding specific incidents (presumably meaning other than those testified to by the defendant.) (2) At 555-559: Incident ranged between common and private areas of premises shared by the defendant and victim. Instruction that there was no duty to retreat in one's home was required.

State v. Baker (1993), 88 Ohio App. 3d 204, 207-211 -- Where the defendant claimed self-defense in a homicide prosecution, the court erred by excluding the testimony of two witnesses as to the reputation of the victim, which would have tended to show that he was the aggressor. While testimony from these witnesses concerning a specific incident was properly excluded, since the victim's character was not an element of the defense of self-defense, the defendant should have been allowed to testify concerning this incident, since it would have gone to his state of mind at the time of the offense. Since it was claimed the victim had a reputation for violence when under the influence of alcohol, it was also error to exclude evidence from the coroner's office as to his blood alcohol concentration.

State v. Purcell (1995), 107 Ohio App. 3d 501, 504-506 -- Defendant presented expert testimony concerning post traumatic stress disorder as basis for self-defense claim. State was properly allowed to present its own expert as to the defendant's state of mind at time of the incident.

State v. Randle (1980), 69 Ohio App. 2d 71 -- Defendant may introduce testimony concerning the victim's threats towards him and instances of violent conduct by the victim, provided these were known to him at time of the offense, in order to establish belief was in danger. The defendant may present evidence of the deceased's narcotics involvement to the extent it is relevant to the claim of self-defense. Also see State v. Smith (1983), 10 Ohio App. 3d 99; State v. Carlson (1986), 31 Ohio App. 3d 72; State v. Roderick (1907), 77 Ohio St. 301; State v. Schmidt (1979), 65 Ohio App. 2d 239 -- If not within personal knowledge, such evidence is inadmissible. State v. Dickerson (1907), 77 Ohio St. 34.

State v. Thomas (1983), 13 Ohio App. 3d 211 -- Defense is entitled to introduce testimony of defendant's psychiatrist regarding his paranoid personality in support of claim of self-defense.

Norwood v. Dismuke (Hamilton County Court of Appeals 1979) 13 Ohio Ops. 3d 152 -- In an assault case, as in a homicide case, the defendant is entitled to introduce evidence as to the character and reputation of both himself and victim to show was justified in acting in self-defense. Also see State v. Debo (1966), 8 Ohio App. 2d 325; McGaw v. State (1931), 123 Ohio St. 196.

State v. Copeland (April 13, 1993), Franklin Co. App. No. 92AP-1486, unreported (1993 Opinions 1423, 1427) -- As to passing on the weight of the evidence on self-defense: "While defendant's subjective state of mind state of mind is highly relevant...the objective conduct of the victim must be considered as well."

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Defense of another

State v. Triplett, 192 Ohio App. 3d 600, 2011-Ohio-816 – Muddled instructions lead to reversal in a case where a single blow lead to death and the defendant claimed it was struck in defense of his sister. Instruction on non-deadly force was required because the force, not its result, is the focus. Furthermore, instructions were “commingled” on self-defense, defense of another and duty to retreat, and failed to define the duty to retreat.

In re Bumpus, Hamilton App. No. C-020776, 2003-Ohio-4307 -- Self defense was established as a matter of law where: (1) Defendant's brother, not defendant, was at fault for starting the fight. (2) Defendant became involved only when he legitimately went to the aid of his brother. (3) He had reason to believe he was in danger of great bodily harm as the other party was an adult who outweighed him by forty-five pounds. (4) There was no duty to retreat as the fight took place on his own property.

State v. Williford (1990), 49 Ohio St. 3d 247 -- Paragraph one of the syllabus: "If a person in good faith and in reasonable ground believes that a family member is in imminent danger of death or serious bodily harm, such person may use reasonably necessary force to defend the family member to the same extent as the person would be entitled to use force in self-defense. (Sharp v. State [1850], 19 Ohio 379, and State v. Sheets [1926], 115 Ohio St. 308..., approved and followed.)"

State v. Harris (1998), 129 Ohio App. 3d 527 -- Fear, which is the basis for self-defense, is distinguishable from rage, which is the basis of the mitigating factor in the voluntary manslaughter statute. In the context of deadly force, the affirmative defense of defense of another is not limited to family members. Nor is it necessary to show the person defended was aware of the danger he or she faced. It must be shown that the defendant's belief that the use of deadly force was necessary, that the person defended was not at fault for creating the situation, and that the person aided did not violate any duty to retreat.

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Jury instructions

State v. Belanger, 190 Ohio App. 3d 377, 2010-Ohio-5407 – Majority holds defendant met his burden of production to have he jury instructed on self-defense by testifying he pushed his girlfriend away after she struck his injured shoulder because he didn’t wish to be struck again. Dissent construes his testimony to have been more in the nature of an accident defense.

State v. Fritz, 163 Ohio App. 3d 276, 2005-Ohio-4736 -- Counsel was ineffective for not requesting an instruction on self-defense in an assault on a police officer case. The testimony established the requisites for an instruction on self-defense through non-deadly force, and further supported the use of excessive force by the officers.

State v. Baker, 159 Ohio App. 3d 462, 2005-Ohio-45 -- Self-defense and aggravated assault are not inconsistent, but it was not ineffective assistance of counsel to forgo a warranted agg. assault instruction to strengthen prospects on self-defense.

State v. Smith, Franklin App. No. 04AP-189, 2004-Ohio-6608 -- Instructions, and argument by the prosecutor, to the effect that self-defense did not apply to the lesser-included offense of voluntary manslaughter denied the defendant his constitutional right to present a complete defense to a properly instructed jury. Defendant was also entitled to the "Peacock" instruction found in 4 OJI (2003) 411.31(4), which delineates the right of a defendant attacked in his own home to use such force as necessary, including deadly force, to repel an assailant from the home. The defendant was not under a duty of retreat, here to remain in the bedroom where he went to retrieve a gun. Plain error reversal on both assignments of error.

State v. Clifton (1972), 32 Ohio App. 2d 284 -- Headnote by the court: "The accidental shooting of an innocent party by one acting in self-defense against an attack by another is not a crime and the failure of a court to so instruct a jury deliberating the guilt of one accused of the manslaughter of such a party is error."

State v. Robinson (1999), 132 Ohio App. 3d 830 -- Majority declines to apply State v. Clifton (1972), 32 Ohio App. 2d 284, where armed protector of a crack house fired though a closed door during a robbery, killing on of associates. See dissent.

State v. Moody (March 13, 2001), Franklin Co. App. No. 98AP-1371, unreported -- (1) Defendant testified he fired his weapon in the air to induce a group of youths to flee after two of their number had been shot by the codefendant. It was error not to instruct the jury they must find he had the requisite intent to kill or cause serious physical harm in order to be found guilty as an aider and abettor. (2) If the principal offender acted in self-defense there was no offense, thus there can be no complicity. Jury must be instructed accordingly. State v. Hill (1994), 70 Ohio St. 3d 25, applied. Same case following retrial: State v. Moody, Franklin App. No. 02AP-353, 2003-Ohio-950.

State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186 -- Plain error when instructing on self-defense not to inform the jury that the defendant bears a burden of proof by the preponderance of the evidence.

State v. Roberts (2000), 139 Ohio App. 3d 757 -- Plain error doctrine undermines claimed errors in instructions. Whether or not an alternative instruction on defendant's claim that he used non-deadly force might have been warranted, the facts did support instruction on use of deadly force. Though there was sufficient evidence for an instruction that there was no duty to retreat because he lived on premises, omission does not arise to plain error.

State v. Perez (1991), 72 Ohio App. 3d 468 -- it is error to use a deadly force related jury instruction in a case where non-deadly force is involved. Also see Columbus v. Dawson (1986), 33 Ohio App. 3d 141; State v. Fox (1987), 36 Ohio App. 3d 78.

State v. Napier (1995), 105 Ohio App. 3d 713 -- Court discusses problems arising from use of standard OJI instructions on self-defense in a manner which ultimately fails to place the affirmative defense before the jury in a manner appropriate to the facts of the case. Shooting took place on the defendant's property and arose from a dispute with neighbors over ownership of a strip of land. Portions of the charge relating to duty to retreat, provocation and noisy quarrels confused the issues.

State v. Hill (1996), 108 Ohio App. 3d 279 -- While the court properly gave instructions on voluntary manslaughter over defense objection, it was error to do so using language stating that the defendant was "asserting this voluntary manslaughter defense as an inferior degree to the crime of murder." Defense claimed self-defense, and language used suggested that the defendant would settle for voluntary manslaughter.

State v. Abner (1978), 55 Ohio St. 2d 251 -- Defendant is not entitled to an instruction that the state must prove beyond a reasonable doubt that he did not act in self-defense.

State v. Para (1980), 61 Ohio St. 2d 236 -- After an instruction on self-defense has been given without objection, the court may refuse to instruct on a lesser included offense based on a claim that the shooting was unintentional.

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Other issues

State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617 -- Intoxicated wife punched husband in the groin after he kicked their dog. At a bench trial the judge agreed with the prosecutor that self-defense required the filing of advance notice the defense will be raised. The judge blundered through self-defense in other ways. A dog may not be “another”, but it is personal property, and Ohio law recognizes defense of property. The judge also expressed the view the defense would ultimately be unable to meet its burden of proof on the defense and erroneously excluded evidence during the state’s case.

State v. Henley (2000), 138 Ohio App. 3d 209 -- Self-defense is a valid defense to charges of criminal damaging and discharging a firearm over a highway.

State v. Martz, 163 Ohio App. 3d 780, 2005-Ohio-5428, ¶34-44 -- Self defense is not a defense to having a weapon under disability when the offender acquired the weapon prior to the incident leading to the claim of self defense. State v. Hardy (1978), 60 Ohio App. 2d 325, distinguished.

State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶33-38 -- Appellate review with respect to affirmative defenses is limited to manifest weight.  Sufficiency review is based on due process.  Proof supportive of an affirmative defense, here insanity, does not detract from proof beyond a reasonable doubt of acts constituting the charged offense, here capital murder. Also see State v. Roberts (2000), 139 Ohio App. 3d 757.

State v. Nemeth (1998), 82 Ohio St. 3d 202 -- Ohio recognizes "battered child syndrome" as a valid topic for expert testimony where a child is charged with killing a parent. This does not amount to a new defense, but is in support of a claim of self-defense. Such testimony must be relevant and meet the requirements of Evid. R. 702. Under the current version of the rule there does not have to be general agreement in the scientific community in order to satisfy its reliability requirement.

State v. Moore (1994), 97 Ohio App. 3d 137, 143-145 -- Once the court had determined not to give the "troublemaker" instruction set forth in 4 OJI it was improper for the prosecutor to make such an argument. However, the error was not prejudicial since the facts as developed at trial would have warranted the instruction.

State v. Barnd (1993), 85 Ohio App. 3d 254, 260 -- "The defenses of accident and self-defense are inconsistent by definition. Accident involves the denial of a culpable mental state and is tantamount to the defendant not committing an unlawful act. In contrast, a defendant claiming self-defense concedes he had the purpose to commit the act, but asserts he was justified in his actions." But see State v. LaFreniere (1993), 85 Ohio App. 3d 840 for when some instructions on self-defense may be proper where the primary claim is accident.

State v. Lazich (1997), 117 Ohio App. 3d 477 -- Conviction reversed on hybrid self-defense/accident claim. Elderly defendant drew gun after being knocked to the ground by young thug who was about to kick him in the head. Defendant claimed gun discharged accidently.

State v. Patton (1995), 106 Ohio App. 3d 736 -- Defendant who claimed self-defense was acquitted of murder, but convicted of having a weapon under disability and related firearm and physical harm specifications. Court holds self-defense is a defense to a physical harm specification. Thus, it was error not to so instruct the jury, and conviction on the specification was not supported by the evidence.

State v. Hauenstein (1997), 121 Ohio App. 3d 511 -- Altercation between father and seventeen year old daughter was a part of argument over her use of a car. Court discusses parental discipline as an affirmative defense and finds it was established by the facts presented.

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