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Ohio Supreme Court: “All or Nothing” Defense Does Not Prevent Instruction On Lesser Included Offenses

The case is State v. Wine, No. 2014-Ohio-3948.

The Ohio Supreme Court has held that a defendant who presents an “all or nothing” defense in a criminal trial does not have the right to prevent a trial court from giving lesser-included-offense jury instructions.

In this case, the defendant had been charged with rape based on the allegation made by his mother-in-law that the defendant had inserted his finger into her while she was sleeping.  She testified at trial that she had fallen asleep with one of the children after getting in bed with him to tell him a story. She awoke and saw the Defendant kneeling down at the side of the bed with his face very close to hers.

The Defendant told the police that he remembered being in bed with his mother-in-law. He told the interviewer that he may have touched his mother-in-law. He also stated, “I may have touched her, I mean I almost think I did. But the truth is I thought it was my wife.”

In a later interview he told the police said that it was possible that something had happened, but that he had no memory of it and no memory of ever touching his mother-in-law inappropriately.

At trial, he testified that he was never in the room that the alleged victim was in on the night in question and that he did not lay his hands on her in any way.  The court explained:  “The defense was thus unequivocal—[The Defendant] was never in the room on the night in question and there could be no gradations on what might have occurred.”

The trial court decided to instruct the jury on the lesser included offenses of of sexual battery under R.C. 2907.03(A)(1) and gross sexual imposition under R.C. 2907.05(A)(1).

In Ohio, the law permits a jury to find a the defendant not guilty of the crime charged but guilty of an inferior or lesser included offense.  The court explained:

This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.

The concern, however, is that jury could reach a “compromise” verdict, therby convicting a defendant of an offense even when there is not proof beyond a reasonable doubt in order to have a “clear conscience.”

The court established the following rule:  “If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense.”

In regards to an “all or nothing defense, thc court explained why the jury should stuill be permitted to consider lesser included offenses:

Whether or not a defendant raises a complete defense to the charged crime, the state has the burden to prove beyond a reasonable doubt all of the elements of the crime charged. The fact that the evidence could be interpreted by the jury as questionable on a single element does not mean that the defendant committed no crime. Simply put, a jury can both reject an all-or-nothing defense—e.g., alibi, mistaken identity, or self-defense—and find that the state has failed to meet its evidentiary burden on an element of the charged crime. In such a case, “if due to some ambiguity in the state’s version of the events involved in a case the jury could have a reasonable doubt regarding the presence of an element required to prove the greater but not the lesser offense, an instruction on the lesser included offense is ordinarily warranted.” Solomon, 66 Ohio St.2d at 221, 421 N.E.2d 139.

Based on this reasoning, the conviction of the defendant was upheld.



Ohio Supreme Court Issues Unusual Criticism of Court of Appeals

The Ohio Supreme Court reinstated kidnapping and other convictions from a man who had been previously acquitted by an Appeals court on sufficiency of evidence grounds.  The court said that the evidence in the case was “overwhelming, undisputed, and not mentioned in the court of appeals’ opinion.”

The case is State v. Tate, Slip Opinion No. 2014-Ohio-3667.

The case involved a 2011 incodent with a 14-year-old girl.  The defendant met the girl outside a library, walked her home, and solicited oral sex.  He claimed that he had innocent motives, had not known that she was underage, and that he had not used deception or force to obtain sexual contact.

The court of appeals had vacated all of the Defendant’s  convictions, sua sponte, after finding that there was insufficient evidence to prove his identity as the man who had committed the offenses.

The court noted that, in fact, “there was no conflicting evidence on the issue of identity— [the Defendant] agreed that he was the man with [the girl].”  Neither party, according to the court, argued otherwise.

The Supreme Court was very critical of the Court of Appeals.  The court said that this case was “light-years away from the exceptional case warranting reversal on manifest-weight grounds.”  The court also added that the sua sponte review of the issue was improper:  “appellate courts should not decide cases on the basis of a new, unbriefed issue without “giv[ing] the parties notice of its intention and an opportunity to brief the issue.” State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170.”


Convictions in Boys’ Deaths During Camping Trip Overturned

An Ohio Court of Appeals has over-turned a conviction of a couple for involuntary manslaughter related to the death of two boys on a camping trip.

The case is State v. Klein, 2013-Ohio-228.

The defendants were convicted of involuntary manslaughter and other crimes.

The facts occurred in 2011. Richard Klein and his wife, codefendant Kasey Klein, commenced a tent camping trip at Ellis Dam with Kasey’s sons, A.C. (age three) and A.J. (age two).

Emergency management officials were alerted that the boys were missing.  Rescue personnel eventually found A.C.’s body in the Muskingum River. The coroner subsequently determined that A.C.’s death was caused by accidental drowning. A.J. has never been found.

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Denial of Committing Crime on Date Alleged Is Insufficient to Warrant Dismissal of Delayed Indictment

An Ohio Court of Appeals has reinstated a drug trafficking indictment that the trial court had dismissed based upon alleged prejudice from a pre-indictment delay.

The case is State v. Brock, 2012-Ohio-6055.

On October 10, 2011, the defendant was indicted on one count of trafficking in drugs, in connection to an illegal drug transaction occurring on or about November 14, 2006.  The Defendant filed a motion to dismiss due to alleged prejudice from the pre-indictment delay.

The Defendant, at a hearing, conceded to selling marijuana on prior occasions, but “denied specific recollection of selling marijuana from his parents’ home on the date enumerated in the indictment.”  The trial court concluded that the state had failed to establish a justifiable reason for the delay in indictment and dismissed the case.

The law in this case is if a defendant is able to show actual, substantial prejudice caused by the pre-indictment delay, the state is must demonstrate a justifiable reason for a pre-indictment delay.

The appeals court reversed.  The court said that the defendant’s “mere subjective denial of any recollection of selling drugs from his parents’ home on the date enumerated in the indictment does not constitute valuable exculpatory evidence so as to satisfy the requisite showing of actual prejudice.”  The court added that the defendant “did not deny past involvement in illegal drug transactions, but simply failed to recall engaging in such activity on the date and at the location delineated in the indictment.”

As a result, the appeals court determined that the defendant had failed to demonstrate actual prejudice.



Court Lets Sleeping Dog Lie; Reverses Conviction For Failure To Confine Dog

The Twelfth District Court of Appeals has reversed a conviction for failure to confine a dog.  The court held that a dog warden, who approached a sleeping dog in the owner’s yard, cannot then charge the owner with failure to confine a dog.

The case is State v. Jackson, 2012-Ohio-5843.

In October, 2011, a Butler County dog warden, found a Great Pyrenees lying alone under a tree on the front side yard of the defendant’s property.  There was no visible fence confining the dog.

The Officer knocked on the defendant’s door, and testified that the dog then came charging at her.  The Defendant provided proof of a license for the dog.  The officer issued the defendant a warning for failure to display the license and a ticket for failure to confine his dog.

The Defendant was convicted of failure to confine a dog.  He was fined $25.

The relevant statute, R.C. 955.22(C), provides:

Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following: (1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape; (2) Keep the dog under the reasonable control of some person.

The defendant argued that no evidence was introduced to show that the dog left the yard on the date in question (or any other date), and that the dog was professionally trained to remain on the property to protect livestock.

The court began “by noting that the statute contains multiple ambiguities”  and “that the phrase, ‘reasonable control of some person,’ is not well-defined .

The court concluded that the statute was not violated because the dog was under the reasonable control of the defendant.  The court believed that evidence indicating “that the dog was professionally trained to remain in one location, has never left the property and was not seen by the warden outside the property” was sufficient to satisfy the statute.  This is especially true because, as the court noted, “the dog was not out of control, but rather was lying asleep beneath a tree in appellant’s yard.”


Cell Phone Location Does Not Require Expert Testimony

An Ohio Court of Appeals has held that testimony about the location of a cell phone, obtained from cell phone provider records, was not expert testimony.

The case is State v. Perry, 2012 Ohio 4888.

In this case, the defendant was a suspect in a series of burglaries.  As part of the case, the State offered testimony regarding triangulation pinpointing with cell phone towers.  In particular, the witness offered an opinion regarding the approximate whereabouts of a cell phone at the time of the various thefts. The defendant argued that the testimony about the location of the phone was expert testimony, and that the state have provided a report summarizing the testimony, findings, analysis, conclusion, or opinion 21 days before trial.

Instead of an expert report, the disclosed that it intended to call witnesses to testify concerning the authenticity of cell phone records and also provide technical insights into how cell phones operate in conjunction with different tower sites in order to provide geographical information.

The trial testimony was accomplished by reviewing the date and time a call was placed, then determining which cell-phone tower provided the service; a method known as ‘triangulation.’  Notably, the phone number located was not the defendant’s but an accomplice’s.  Most of the testimony concerned how a cell phone works, including how the phone utilizes nearby towers for connectivity.  The court concluded that the witness “simply compared the locations on the phone records to locations on the tower site maps by matching the relevant numbers recorded by the service provider.”  This was not expert testimony because “any layperson could make this determination by examining the respective exhibits.”

Because the testimony was not “expert” testimony, the state was not required to provide a report prior to trial.


State Not Required To Disclose Identity of Informant Who Set Up Drug Deal

The State is not required to disclose the identity of a confidential informant who set up a drug deal, according to the 12th District Ohio Court of Appeals.

The case is State v. Dennis, 2012-Ohio-4877.

The defendant appellant was indicted for trafficking in heroin and cocaine.

An officer with the Warren County Sheriff’s Office worked with a confidential informant to set up a drug deal involving the defendant.  The officer testified that he has worked with the confidential informant in over 50 cases.

The informant arranged to purchase crack-cocaine and heroin from an individual that went by the name of “Red” in a Burger King parking lot.  The officers set up surveillance and, after the informant left his vehicle to approach a vehicle driven by the suspect, the other officers surrounded the car.  The officer recognized a bag that appeared to contain cocaine in the rear passenger floor board.  The defendant and the second passenger, later identified as Red, were charged regarding their participation in the transaction.  A third passenger was not charged with any offense.

The Defendant first argued that the stop of the defendant’s car was not supported by reasonable and articulable suspicion. The court rejected this argument.

The law is that a police officer may briefly stop and detain an individual without an arrest warrant or probable cause for an arrest in order to investigate the officer’s reasonable suspicion of criminal activity.  Reliable and credible information received from an informant may provide an officer with reasonable suspicion for an investigatory stop.

In this case, the court believed that the confidential informant’s information was reliable and credible because the officer had previously worked with the informant in several cases.  In addition, the information provided by the informant was corroborated by the officer’s observations at the scene of the proposed drug transaction.

The subsequent search of the vehicle was permissible under the “automobile exception.”  This exception to the Fourth Amendment warrant requirement permits an officer the search a vehicle once the officer has probable cause to believe the vehicle contains contraband.  In this case, the officer justified by search by stating that he observed a baggie possibly containing cocaine or crack-cocaine in the car.

The defendant also argued that the state should have been required to disclose the identity of the confidential informant.  The law on the disclosure of confidential informant requires the court to balance a defendant’s constitutional right to confront accusers against him with the public’s interest in protecting the flow of information to the government.  The court explained “When the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges an accused is entitled to disclosure of the identity of the confidential informant.”

The general rule, the court acknowledged, is that the confidential informant must be disclosed when the informant helped set up the commission of the crime and was the sole witness to its occurrence.  However, disclosure is not necessary when another individual also witnesses the crime.

In this case, even though the informant set up the transaction, a codefendant and an uncharged passenger were in the vehicle.  “Therefore,” the court said, “the confidential informant was not the sole witness to the offense eliminating the need to disclose the identity of the informant.”



Discussion of Opinion Upholding Ryan Widmer Conviction

An Ohio Court of Appeals has rejected Ryan Widmer’s initial appeal.

The decision can be found at State v. Widmer, 2012-Ohio-4342.

[Updated 5:42 pm.  Additional links:

The court recited the following significant facts:

August 11, 2008 Widmer called 911 and stated that his 24-year-old wife, Sarah Widmer, had fallen asleep in the bathtub and he thought she was dead.  Widmer drained the bathwater, removed Sarah from the bathtub, and proceeded to attempt CPR.

The initial officer who responded noticed that a pinkish-white, frothy discharge was coming out of Sarah’s mouth and nose.  Emergency personnel who later arrived at the scene also noticed a frothy discharge coming from her vaginal area as they attempted resuscitation, including two unsuccessful attempts at intubation.

Widmer told an officer that he and Sarah were the only people in their home that night.  Later, Widmer consented to have police search his home.  Detective Jeff Braley with the Hamilton Township Police Department noticed that the tub was mostly dry, with the only observable water being droplets located right around the drain.  The officers examined the master bedroom and found blood stains on the carpet in the location where Sarah’s head and vaginal area had been laying.  He also felt the carpet in the and found it to be dry.

The Warren County Coroner, Dr. Uptegrove, determined that Sarah’s death was caused by drowning.  He observed both external and internal injuries to Sarah’s body, including faint bruising on the right-side of her forehead, a petechial hemorrhage on the inner surface of her eyelid, bruising on the left side of her neck, a contusion on the back of her neck, an abrasion on her left armpit, and bruising and lacerations to her upper lip.  His opinion was that Sarah sustained occurred before her death and were not consistent with injuries commonly resulting from CPR.

A second autopsy by a defense expert also found injuries to Sarah.  This doctor, however, was unable to determine whether Sarah’s injuries, including the internal hemorrhaging to her neck, were caused by rigorous CPR or by some other means.  For this reason, Spitz would not have ruled the manner of Sarah’s death a homicide; rather, he would have ruled her death “undetermined.”

Widmer was later charged with aggravated murder.  That same day, a warrant to search the Widmers’ home was executed.  The court described the search:

While executing the warrant, Braley dusted the bathtub for fingerprints and found streak marks that he believed were made by human hands.  The marks were located near the middle of the bathtub, on its far wall (or right-side wall).  Once the marks were discovered, Braley contacted the Miami Valley Crime Lab (Miami Valley) to have the bathtub examined.  Danny Harness, a latent print examiner with Miami Valley, responded to the scene.  Using a superglue fuming process and reflected ultraviolet imaging, Harness observed fingermarks and smear marks on the bathtub.  He was not, however, able to visualize any latent fingerprints of value on the bathtub.  Nonetheless, the decision was made to remove the bathtub from the Widmers’ home, and it was sent to Miami Valley for further processing.  During his second examination of the bathtub Harness used fingerprint powder and found fragmented prints on the bathtub.  However, the prints lacked identifying characteristics and Harness deemed the prints to be of no comparison value.   A few months later, William Hillard, a senior criminalist with the city of Cincinnati, was contacted by the Hamilton Township Police Department to examine the bathtub.  Hillard found marks along the top of the tub and the side of the tub that indicated it had been wiped down, but he was unable to determine when the tub had been wiped down.  Hilliard also found fingertip impressions on the tub.  He was unable to make a positive identification as to who specifically left the fingertip markings, but he was able to determine that the markings were in a downward position and were made by a person of small stature, like a child, a female, or a small male.  Hillard also found a forearm impression on the bathtub and determined from the presence of hair follicles that the impression was made by an adult male.  Hillard determined that this forearm impression overlaid circular marks made on the bathtub by bath product bottles.  Hillard could not, however, determine when the forearm impression or fingertip markings were made on the bathtub.  

Widmer was initially convicted of murder, a lesser-included offense, and sentenced to 15 years to life in prison.  A new trial was granted after it was discovered that jury members, during their deliberation, had improperly discussed personal and external matters regarding the length of time it took them to dry after bathing.

A second trial took place in May 2010.  After the jury was unable to reach a verdict, a mistrial was declared.

At a third trial, he was again convicted of murder.

Widmer raised a number of issues on appeal.  The most important were the seizure of the bathtub and the sufficiency of the evidence.

Widmer suggested that counsel should have filed a motion to suppress the seizure of the bathtub on the grounds that the seizure was outside the scope of the search warrant.  The court noted that the search warrant authorized police to search the Widmers’ residence for “any evidence of criminal activity.” The court said, “Although the warrant did not specifically list the bathtub, this does not invalidate its seizure.  The warrant still enabled the officers to reasonably ascertain and identify the things that were authorized to be seized . . Common sense dictates that in an alleged bathtub drowning, valuable evidence, including latent fingerprints, can be obtained from a search of the bathroom and bathtub.”

In addition, the court said that the bathtub could be seized as an “instrumentality of the crime.”  Finally, the court said:

In the present case there is no evidence demonstrating that the police deliberately set out to seize the bathtub without setting it forth in the search warrant.  Furthermore, there is no evidence demonstrating that the police acted with deliberate, reckless, or grossly negligent disregard for Widmer’s Fourth Amendment rights when seizing the bathtub.  Rather, the evidence produced at trial demonstrated that officers seized the bathtub in good faith reliance on the search warrant, removing the bathtub only after a search for latent fingerprints revealed the fingermarks and smear marks. 

In regards to the sufficiency of the evidence, the court said:

The state presented evidence that Sarah and Widmer were the only two individuals present in the Widmers’ home on the night of Sarah’s death.  The state also presented evidence that Sarah died from a forcible drowning.  Dr. Uptegrove testified that during Sarah’s autopsy he observed contusions on Sarah’s scalp and on the back of her neck, external bruising to her forehead and the left side of her neck, and significant internal bruising to the anterior of her neck.  Uptegrove testified that Sarah’s injuries were not consistent with or caused by medical intervention or the administration of CPR.  Rather, Uptegrove believed the bruises to Sarah’s neck were caused prior to her death and resulted from significant compressional force or a blunt force being applied to her neck.  Dr. Lee, an expert in pathology, also testified that the injuries Sarah sustained to her neck, scalp, and forehead were atypical to a natural drowning event and were not attributable to medical intervention.  Lee testified that the bruising around Sarah’s neck was caused by blunt force injury or compressive force.  From this testimony, the jury could have drawn a reasonable inference that the bruising around Sarah’s neck occurred when Widmer used compressive force to hold Sarah’s head underwater, thereby causing her death.  

The court said that the jury was free to reject Widmer’s alternative theory as to the manner of Sarah’s death:  a seizure or heart condition.  The court said, “Not only did the state present expert testimony that Sarah’s bruising was caused by compressive force, but the state also presented testimony that Sarah was a healthy 24-year-old woman who had never had a seizure or been diagnosed with epilepsy.  The state further presented expert testimony that Sarah’s childhood heart murmur was an “innocent heart murmur” that typically disappears on its own within a few months or a year of life.  Experts testifying for the state also testified that there was no evidence of a cardiovascular or neurological disease or defect which caused or contributed to Sarah’s death.”

Finally, the court rejected an argument that they should have been permitted to obtain additional information about the investigating officer’s education and employment background.  The court agreed that this evidence was unlikely to be admissible character evidence, and that it could “mislead the jury or cause confusion of the issues.”  This issue, the court felt, would be “collateral to Widmer’s murder trial, and exploration of this issue was likely to ‘bog down’ the criminal trial.” and lead to confusion of the jury and misleading of the jury.  The court also said that “Widmer had the opportunity to challenge the integrity of the police officers’ investigation of Sarah’s death by cross-examining Braley and other testifying officers about the processing and collecting of evidence from the crime scene as well as their role, if any, in the decision to charge Widmer with the crime.”


Identification at Court Hearing ‘Concerns’ Court, But Not Enough to Lead to Suppression

An Ohio Court of Appeals (Twelfth District) rejected an argument that a identification that took place at a preliminary court hearing was impermissibly suggestive and should, as a result be suppressed.

The case is State v. Ward-Douglas, 2012-Ohio-4023.

The defendant was convicted of felony charges of making or presenting forged prescriptions for painkillers at pharmacies.  The state claimed that, as a course of conduct during 2008 and 2009, 15 false or fraudulent prescriptions for Percocet or Vicodin were written from one physician’s prescription pad and presented to pharmacies in either Warren, Butler, or Hamilton counties on an almost monthly basis.

The validity of the eyewitness identification was key to the case.  There were four witnesses, two witnesses from a West Chester pharmacy in Butler County and two from a Parkside Drive pharmacy in Warren County, who could potentially provide identification testimony because they viewed the perpetrator and the vehicle she was driving at the respective pharmacy drive thru.

The detective prepared a photo lineup of six African American women, including the defendant.  One witness identified the defendant “with 50% certainty.”  Another witness identified the suspect with “100% certainty.”  The detective then pointed out the suspect.

Six months later, the detective requested that the witnesses appear at a preliminary court hearing for the defendant “to see if they could make a better identification.”  Both witnesses confirmed the identification after the court hearing.

The court of appeals held that the identification process was not unconstitutional because it was not “so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.”  The court said:  “we conclude that the photo array or lineup procedures outlined by law enforcement in this case were not impermissibly or unduly suggestive.”

The court did express some “concern about the  identification at the court hearing.  However, these concerns were not enough to warrant suppression of the identification.  The court said:

we conclude that the identification previously provided by the witnesses possesses sufficient aspects of reliability, there appears to be no likelihood of misidentification under the totality of the circumstances, and no prejudice . . . Before [the defendant] appeared in municipal court in front of the two . . . pharmacy witnesses, both of those witnesses observed the perpetrator sufficiently during the crime to provide a physical description to law enforcement and offered some degree of identification at the photo lineup. 

The court noted in support of this conclusion that one of the witnesses had provided a description of the suspect that matched the defendant and had said she was 100% certain of the identification made during the photo lineup.  Notable, the other witness said that that the “court appearance did not change her feelings about her level of certainty, and she was not asked to identify the perpetrator at trial.”



Self Defense Not Available When Defendant is at Fault in Creating the Situation

An Ohio Appeals court has held that a defendant cannot claim self-defense when he/she is at fault in creating the situation giving rise to the situation or violated a duty to avoid danger or retreat when he chooses to confront the victim.

The case is State v. Ellis, 2012-Ohio-3586.

The Defendant was convicted of murder and other related offenses.  The incident involved a woman, Cassandra Dunlap. According to the Defendant, the two began a romantic relationship although Cassandra denied such. The Defendant also had a girlfriend or fiancée,  Kimberly Tilley, at the time.

The Defendant and Cassandra smoked marijuana together, along with Cassandra’s brother, J.R.. The Defendant asked Cassandra if he could borrow J.R.’s scales. The Defendant did not return the scales and Cassandra began calling the Defendant. The Defendant answered a call from a phone number he did not recognize. The caller threatened the Defendant, and the Defendant heard Cassandra in the background start threatening him.  The Defendant changed his cell phone number that day and began carrying a gun.

A few months later, J.R. and Cassandra drove to a neighborhood store to buy cigarettes. Around the same time, the Defendant walked to the same store. The Defendant entered the store, and Cassandra began asking the Defendant  about J.R.’s scales. Cassandra and the Defendant began arguing, prompting the Defendant to announce he was “strapped,” according to a store employee, which meant he was carrying a gun.

Cassandra and J.R. left the store, and the Defendant followed them.  Outside the store, the Defendant continued to follow Cassandra and J.R. and the Defendant and Cassandra continued to argue. The Defendant testified that J.R. walked to his car, rummaged inside it, and then returned to the group, although Cassandra denied such. Cassandra testified that the Defendant and J.R. started to argue regarding something offensive the Defendant said to J.R.

The Defendant testified that he then began walking away, at which point Cassandra told J.R. that she had given the Defendant some birthday money belonging to J.R.’s son, causing J.R. to become angry. The Defendant testified that J.R. punched him, and the two engaged in a short physical altercation. Cassandra testified it was the Defendant who swung at J.R. first. The Defendant testified that J.R. then reached into his sweatshirt pocket, and, believing J.R. was reaching for a gun, the Defendant shot J.R. eight times. No gun was found in J.R.’s possession.

The Defendant argued that the trial court erred when it gave confusing and misleading instructions on the law of self-defense. With regard to self-defense, the jury instructions given in the present case provided, in pertinent part:

The Defendant raises the affirmative Defense of Self-Defense. The burden of proving the affirmative defense of Self-Defense is upon the Defendant. He must establish the defense by a preponderance of the evidence.

* * *

To establish self-defense, the Defendant must prove by a preponderance all of the following: (1) the Defendant was not at fault in creating the situation giving rise to the affray; (2) the Defendant had an honest belief that he was in imminent danger of death or great bodily harm and that his only  means of escape from such danger was in the use of such force even if he was mistaken; and (3) the Defendant did not violate any duty to retreat or avoid the danger. If the Defendant had a reasonable and honest belief that he was  in  imminent  danger  of  death  or  great  bodily  harm  and that the only means of escape from such danger was by killing his assailant, then he was justified even though he was mistaken as to the existence of such danger.  Resort to the use of a deadly weapon is not permitted because of  words.  Vile  or  abusive  language,  or  verbal  threats,  no matter how provocative, do not justify an assault or the use of a deadly weapon.

In determining whether the defendant had reasonable grounds for an honest belief that he was in imminent danger, you must put yourself in the position of this Defendant, with his characteristics, his knowledge or lack of knowledge, and under the circumstances and conditions that surrounded him at that time. You must consider the conduct of [J.R.} and determine if his acts and words caused the Defendant to reasonably and honestly believe that he was about to be killed or to receive great bodily harm.

* * *

The Defendant must establish that the other party was the aggressor and that the Defendant did not himself provoke and cause the injury. The defense of self-defense is not available to the person who starts a fight unless, in good faith, he withdraws from the contest and informs the other party of his withdrawal, or by words or acts reasonably indicates that he has withdrawn and is no longer participating in the fight.

A Defendant is not in a position to claim self-defense if he sought trouble and armed with a dangerous weapon, he provoked a fight or renewed a fight that had broken off and did not attempt to avoid it or leave the scene of the trouble. If, in the careful and proper use of his faculties, the Defendant honestly believed and had reasonable grounds to believe that an assailant was not able and did not intend to kill or do great bodily harm to the Defendant, then the Defendant, having notice of his adversary’s position, was released from the danger, and the right to use force in self-defense ended. If thereafter, the Defendant continues to fight, he becomes the aggressor and a subsequent injury to another is unlawful.

In this case, the Defendant had no legal right to resort to self-defense, even if he had a reasonable belief that he was in imminent danger of death or great bodily harm, unless he proved to them he was not at fault in creating the situation giving rise to the affray, and he did not violate any duty to retreat or avoid danger. The court said:

It is very well-established that, in order to successfully utilize the affirmative defense of self-defense in a case where a defendant used deadly force, such as the case here, the defendant must prove all three of the following: (1) he was not at fault in creating the situation giving rise to the affray; (2) he had a bona fide belief 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 deadly force; and (3) he did not violate any duty to retreat or avoid the danger. . . .

The court also held that the law of self-defense does not include the proposition that so long as a defendant is engaged in a lawful activity, such lawful activity can never be the basis for creating the situation giving rise to the affray. The court said, “a multitude of courts have found that a defendant is at fault in creating the situation giving rise to the affray or violated a duty to avoid danger or retreat when he chooses to confront the victim, chooses to knowingly go to a place where the victim will be or refuses to move in a direction away from the victim, even when the defendant’s action was otherwise completely lawful.”

In this case, the defendant could be convicted despite a claim of self-defense because “he did not comply with his duty to avoid danger because he chose to enter a place where he knew the victim and Cassandra would be despite knowing that a confrontation might ensue, he chose to stay in the store even after a confrontation ensued with Cassandra, and he chose to follow the victim and Cassandra out of the store and engage in a further confrontation outside instead of staying inside the store or walking away from the volatile situation. Furthermore, the Defendant escalated the conflict by announcing in the store that he was carrying a gun, which further demonstrates his failure to avoid any danger.”