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.

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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.

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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.”