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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
State v. Prince
(1991), 71 Ohio App. 3d 694, 699 -- "The common law elements of necessity are: "(1) the harm must be committed under the pressure of physical or natural force, rather than human force' (2) the harm sought to be avoided is greater than, or at least equal to that sought to be prevented by the law defining the offense charged; (3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid greater harm; (4) the actor must be without fault in bringing about the situation; and (5) the harm threatened must be imminent."
State v. Crosby
, Lucas App. No. L-03-1158,
-- No abuse of discretion in refusal to instruct on necessity where after fleeing upon first seeing a gun brandished the defendant returned to confront the armed subject.
State v. Spingola
(2001), 144 Ohio App. 3d 75 -- Defendant was not entitled to necessity instruction premised on Missouri law. Nor was he entitled to an instruction under Ohio law as there was no evidence he cut down a gay pride flag under the pressure of physical or natural force, as opposed to human source. Followed:
State v. Holmes
, 129 Ohio Misc. 2d 38,
(violation of a protection order).
State v. Caynor
, Monroe App. No. 867,
-- Defendant who had no license took the wheel due to his wife's migraine. Common law defense of necessity is waived on appeal as it was not raised in the trial court. Statutory defense of substantial emergency pursuant to
is not available as that provision specifically excludes the charge of driving without a license.
State v. Good
(1960), 110 Ohio App. 415, 419 -- "The force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous and threaten grave danger to his person during all the time the act is being committed....It must be a force threatening great bodily harm that remains constant in controlling the will of the unwilling participant while the act is being performed and from which he cannot withdraw in safety. Fear of future harm cannot be the basis of such a defense." Also see 40 ALR 2d 908, 910. At p. 430 court states that the defense of duress is not available if the defendant denies committing the acts charged, since the nature of the defense is confession and avoidance.
State v. Woods
(1976), 48 Ohio St. 2d 127, 357 N.E. 2d 1059, 1065, fn. 3: -- "There is strong precedent for holding that duress is not a defense to murder, but that question has not been decided in Ohio. At common law, no person can excuse himself for taking the life of an innocent person on the grounds of duress.
Arp v. State
(1893), 97 Ala. 5, 12 So. 301;
Watson v. State
(1951), 212 Miss. 788, 55 So. 2d 441;
State v. Weston
(1923), 109 Ore. 19, 219 P. 180;
State v. Nargashian
(1904), 26 R.I. 299, 58 A. 953;
Leach v. State
(1897), 99 Tenn. 584, 42 S.W. 195. This rule has been modified by statute in some states.
Jones v. State
(1950), 207 Ga. 379, 62 S.E. 2d 187;
Paris v. State
(1895), 35 Tex. Cr. R. 82, 31 S.W. 855."
State v. Getsy
(1998), 84 Ohio St. 3d 180, 197-200 -- Duress is not a defense to aggravated murder premised on prior calculation and design. It may, however, be a defense to aggravated murder premised on felony murder, may be a defense to specifications, and is a mitigating factor. At p. 205: Duress and coercion are to be construed more broadly when considered as mitigating factors than when advanced as an affirmative defense.
State v. Grinnell
(1996), 112 Ohio App. 3d 124, 143-146 -- Though at common law duress is not a defense to taking the life of an innocent person, there is no Ohio precedent that duress is not a defense to murder. Duress is recognized as a mitigating factor at the penalty phase of a death penalty prosecution, and may be a defense to a predicate felony in a felony murder prosecution. Even assuming duress is an affirmative defense to murder, court concludes facts of a Lucasville riot prosecution did not warrant duress instruction being given.
State v. Metcalf
(1977), 60 Ohio App. 2d 212 -- Large (6'2", 275 pound), armed (.357) undercover narcotics agent threatened harm to defendant's cousin leading defendant to hand over a brick of marijuana to make up for earlier bad drug deal cousin was involved in. Court discusses defenses of entrapment, necessity and duress, concluding that under the circumstances the defendant should have been acquitted. At pp. 215-216 the court discusses necessity in the context of avoiding harm to others there is a duty to protect.
State v. Milam
(1959), 108 Ohio App. 254 -- Defense of duress was established by defendant who went with others, he thought, to recover money lost in a crooked card game. Others unexpectedly converted confrontation into a robbery and defendant participated out of fear for his own safety, this claim being substantiated by his subsequent conduct.
Dayton v. Gigandet
(1992), 83 Ohio App. 3d 886 -- (1) At. pp. 890-891: "The privilege of necessity is an affirmative defense of lawful justification and is required to be established by the person asserting it." (2) Necessity does not excuse criminal trespass by abortion protesters.
Columbus v. Andrews
(February 27, 1992), Franklin Co. Case Nos. 91AP-590, 880 and 881 -- Privilege to trespass on the premises of another may arise from necessity and the defendant is entitled to have the jury so instructed. In dubious circumstances, father was charged with trespass at public school his child attended. Compare
Cleveland v. Sundermeir
(1989), 48 Ohio App. 3d 204 -- First amendment right to free speech did not give abortion protester right to trespass on parking lot of clinic.
State v. Cross
(1979), 58 Ohio St. 2d 482 -- The defense of duress or necessity may be raised by a defendant charged with escape - though rarely and not by Mr. Cross. Also see
State v. Proctor
(1977), 51 Ohio App. 2d 151, 157-160;
United States v. Campbell
(8th Cir. 1979), 609 F. 2d 922.
State v. Harkness
(1991), 75 Ohio App. 3d 7 -- Drug snitch charged with escaping as he was being transported to the jail was entitled to an instruction on necessity.
State v. Haar
(1991), 81 Ohio App. 3d 244 -- The affirmative defense to the charge of driving under suspension or restriction is limited to emergencies which exist in fact. (No precedent cited, but court discusses the defense of necessity and its application to strict liability offenses.)
Quebodeaux v. Quebodeaux
(1995), 102 Ohio App. 3d 502 -- In the context of a domestic relations case it was claimed that the wife signed the separation agreement under duress. A finding that she suffered from battered woman syndrome was not a prerequisite to a finding of duress.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.