Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Affirmative Defenses; Assault;
Battered Woman Syndrome.
Duty to retreat
Defendant's state of mind
Defense of another
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.
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.
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.
State v. Greene, Mahoning App. No. 02
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
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
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
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
, 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
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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State v. Triplett, 192 Ohio App. 3d
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
, 19 Ohio 379, and State v. Sheets , 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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State v. Belanger, 190 Ohio App. 3d
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
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.
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,
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
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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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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