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“Whupping” Son with Belt is Not Proper Parental Discipline in a Domestic Violence Case

An Ohio Appeals Court has rejected an appeal in a domestic violence case.  The Defendant, who allegedly beat his son with a belt, had argued self-defense and appropriate parental discipline.

The case is State v. McKinney, 2012-Ohio-4521.

The Defendant was convicted of one count of domestic violence, a felony of the fourth degree, against his 16-year-old son.

According to the son’s testimony, the defendant came into his bedroom Jarred and appeared to be angry.  The defendant told his son to take the dog outside, but his son argued that it was not his turn.  The son complied, but when he got back the Defendant was removing clothes from the chest of drawers in the room.

The Defendant left and returned with a belt.  He told his son to take his sweatshirt off so that he could “get a whupping.” The Defendant then struck his twice in the back with the nonmetal end of the belt.  During a subsequent struggle, the son received additional injuries, including a cut lip and a small cut near his left eye.  The son walked to school, where his nose began to bleed again and he was sent to the office.  He told the story to a Hamilton Police Officer.

The Defendant claimed that the he had punished his son for poor grades and bad behavior.  The punishment included washing the dishes no use of his car, cell phone, and video games.  He said that during the incident he told his son that if he didn’t improve his grades, he would get a ‘whupping.”  He said he attempted to strike his son in the buttocks with the belt but that his son lunged at him and tackled him onto the nearby mattress. During the struggle, he restrained his son on the mattress and smacked him across the face “with an open hand.”

The Defendant suggested that he should have been permitted to tell the jury about his son’ prior disciplinary history, including drug use.  The court disagreed.  The court said that the drug use “does not go to . . . his behavior leading up to the altercation, his response to prior noncorporal punishment, the location or severity of his punishment, or [the defendant’s] state of mind while punishing his son . . .”The Defendant as permitted to testify that his son had a “disrespectful attitude” and that he had punished his son in a number of ways.  The Defendant also testified about a past instance where his son had caused his mother to have a black eye.

The Defendant also argued that he should have been permitted to assert self-defense.  The court said that the Defendant “essentially argues that he was exercising proper and reasonable parental discipline when he struck [his son] with the belt, but then acted in self-defense once Jarred tackled him . . .”  self-defense was not appropriate because the defendant “initiated the altercation.”

The law on this issue can become very complicated.  Persons facing potential domestic violence charges, as well as victims, are encouraged to contact an attorney with significant experience in domestic violence criminal defense and prosecutions.

 

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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.

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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.”

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Court of Appeals Denies New Trial Based on Self-Defense Jury Instructions.

The Eleventh District Court of Appeals affirmed the denial of a new trial for a man who wished  to challenge the jury instructions on self-defense in his trial.

The case is State v. Vinson, 2012-Ohio-3421.

The Defendant had been convicted of murder with a firearm specification, and also of carrying a concealed weapon.  Before sentencing, he moved for a new trial.  The trial court denied his motion, and sentenced him to a term of 15 years to life for murder, a consecutive three-year term for the firearm specification, and a consecutive 18-month term for carrying a concealed weapon.

The Defendant has lost a number of prior appeals, include State v. Vinson, 11th Dist. No. 2006-L-238, 2007-Ohio-5199 (“Vinson I”).   and State v. Vinson, 11th Dist. No. 2007-L-088, 2008-Ohio-3059 (“Vinson II”), appeal not accepted, 120 Ohio St.3d 1453, 2008-Ohio-6813.

The facts of the case involved a fight between the defendant and the victim over the defendant’s then-fiancé and the mother of his infant child.  The fight arose because the woman told the defendant that she was leaving him for the victim.  The victim arrived to pick up the woman.  The Defendant retrieved a gun, and loaded it.  He yelled a racial insult at the victim,  told him to leave, then picked up a rock and threw it at the victim’s vehicle.

The Defendant claimed that the victim attempted to pull a gun out of his waistband but dropped it.  The Defendant then claimed he became fearful at the victim tried to retrieve the gun and started shooting.   According to media reports, “the only witness said they saw [the victim] running away with his hands by his sides when he fell to the ground. Meanwhile, [the defendant]  stood in his front lawn holding a smoking gun.”

The Defendant requested a new trial on the ground that the trial court improperly instructed the jury on the elements of self-defense.

The motion was filed after the time limits for raising this issue.  The Defendant claimed that “he was unavoidably prevented from filing the motion for a new trial because he was not in possession of the jury instructions portion of the trial transcript.”  The court rejected this argument:  “the instructions have been a part of the record since his direct appeal in 2006.  Moreover, a delayed motion for a new trial is not a proper vehicle for raising an issue regarding the jury instructions, because those instructions were read in open court in his presence and the transcript was available to him since the trial, as early as his direct appeal.”

 

If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC

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