2015 #28 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #28 (June 29-July 3, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 17

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A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents

and then by individual case.

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way to understand the fullest context of the courts decisions.



Table of Contents

ILLINOIS

People v. Scott, 2015 Ill. App. LEXIS 500 (IL Ct. App. 2015)

Key issues:

Victims violent character as admissible evidence Burden of production, on the defendant, specific elements

Date: June 30, 2015

INDIANA

Billeaud v. State, 2015 Ind. App. Unpub. LEXIS 739 (IN Ct. App. 2015)

Key issues:

Burden of production, on the defendant Even weak production evidence is sufficient Burden of production, specific elements Innocence, initial aggressor Regain innocence, withdrawal Reasonableness, objective and subjective required

Date: July 1, 2015

OHIO

State v. Daigle, 2105 Ohio App. LEXIS 2639 (OH Ct. App. 2015)

Key issues:

Burden of production on the defendant Burden of production, elements Right to argue self-defense if also denying the use of force, inconsistent defenses,

permitted Not required to admit elements of crime to receive self-defense instruction

Date: June 30, 2015

Page

37

42



Illinois

People v. Scott, 2015 Ill. App. LEXIS 500 (IL Ct. App. 2015)

Key issues:

Victims violent character as admissible evidence

Burden of production, on the defendant, specific elements

Date: June 30, 2015

Decision:

Following a jury trial, defendant Joseph Scott was found guilty of second degree murder of Justin Grover

and sentenced to 18 years' incarceration. Scott contends that he was denied effective representation

because: (i) defense counsel did not present Jermaine Cummings' robbery conviction as Lynch

character evidence to support Scott's claim of self-defense (People v. Lynch, 104 Ill. 2d 194, 470 N.E.2d

1018, 83 Ill. Dec. 598 (1984)); (ii) defense counsel failed to object to the State's inaccurate statement

during rebuttal argument that Scott waited three years to assert self-defense; and (iii) defense counsel failed

to object to Scott's impeachment by Scott's prior aggravated unlawful use of a weapon (AUUW)

conviction under a statute later ruled unconstitutional by the Illinois Supreme Court in People v. Aguilar,

2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321.

We reject each of these contentions. First, Scott's arguments are forfeited; forfeiture aside, we

determine that Scott was not prejudiced by counsel's inactions, and, therefore, his ineffective assistance of

counsel argument fails the second prong of the Strickland test.

Scott also argues that in sentencing him to 18 years' imprisonment, the trial court failed to consider

statutory mitigating factors and improperly relied on his AUUW conviction as an aggravating factor. We

conclude that the trial court did not abuse its discretion in sentencing Scott. The record reflects that

the trial court properly considered mitigation and entered a sentence less than the maximum allowed

by statute. Furthermore, the trial court specifically stated it considered Scott's record after he was

released from parole.

BACKGROUND

Scott was charged by indictment with 24 counts of first degree murder of Justin Grover (720 ILCS

5/9-1(a), (a)(2), (a)(3) (West 2008)); 3 counts of attempted first degree murder of Jermaine Cummings

(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), and 1 count of aggravated discharge of a firearm (720 ILCS

5/24-1.2(a)(2) (West 2008)). Scott moved to admit evidence of various convictions and arrests of Grover

and Cummings. Immediately before jury selection, the State nol-prossed 17 of 23 counts of first degree

murder of Justin Grover and all charges related to Cummings. Defense counsel then stated: "We will not



call that witness then," apparently referring to the police witness regarding Cummings' prior convictions.

Over the defense's objection, the trial court granted

the State's motion in limine to impeach Scott with his AUUW conviction on January 29, 2008, should he

testify at trial.

On the afternoon of May 31, 2009, Scott, Justin Grover, Jermaine Cummings, and Scott's brother,

James Scott, were selling marijuana out of a second-floor apartment in a building in Chicago's Englewood

neighborhood. An argument among them escalated to a fistfight. Henry Scott, another brother who was

watching the fight with other bystanders, pulled out a gun. The fight ended after Scott grabbed the gun from

Henry and shot at Grover and Cummings, hitting Grover in the head and thigh. Cummings was not

shot. Grover died at the scene.

Jermaine Cummings testified that, in May 2009, he made his living selling "nickel bags" of marijuana. On

May 31, Cummings and Grover, along with Scott and James, were selling marijuana from the apartment

when Grover and James began to argue about transactions. The argument quickly moved downstairs

and outside in front of the building. Cummings followed them outside and tried to stop the argument.

Scott then came downstairs and also tried to intervene. Grover began to argue with Scott. When

Grover and Scott started to shove each other, Cummings and James attempted to break up the fight

by standing between them. Cummings and James began fighting; Cummings pulled out a gun and

swung it at James, then gave the gun to a bystander and began fist fighting with James. They stopped

fighting after several minutes. Cummings grabbed Grover and pulled him toward the door of the building.

Thereafter, Scott and James stood right in front of

Cummings and Grover and continued arguing with them. Henry then "popped up," pulled out a gun, and

pointed it at Cummings. Cummings asked Henry if he was going to shoot the gun, and then Grover told him

to shoot. Henry said nothing and did not shoot.

Scott "snatched" the gun from Henry and shot three times. Thinking Grover was next to him, Cummings

ran away, but when he turned around he noticed Grover lying on the ground where they had been

standing. Cummings returned to chase James, who had run. Cummings caught him and started fighting.

The police arrived and took them both to the station.

Cummings denied making threats or threatening movements and testified that he did not see Grover

make threats or threatening movements.

On cross-examination, Cummings stated he carried a gun for protection. Grover was "mad" and threatening

James because he thought James had stolen some of his marijuana. Cummings did not remember telling

two detectives on the day of the shooting that Grover "whooped [Scott's] ass."

Cummings also testified that he was sentenced to

prison in 2011 for the unlawful use of a weapon by a felon and, at the time of trial, remained incarcerated;

in 2007, he was sentenced to three years in prison for possession of a stolen motor vehicle; and in 2003, he

was sentenced to probation for robbery but in 2004, after violating his probation, the court resentenced

him to a prison term.

Simone Priest testified that in May 2009 she had been dating Grover for two or three years; they had a

one-year-old daughter. On May 31, while walking to pick up the daughter, she and Amber McCorkle saw

Grover and Cummings and spoke to them for a few



minutes. Ten or fifteen minutes later, on their way back, the women heard arguing and saw Cummings,

Grover, Scott, James, and Henry standing together. Henry faced Grover, Cummings was next to Grover,

and James and Scott stood nearby. Priest said she was 10 to 12 feet away. Henry was pointing a gun at

Grover. She heard Grover say "bust it" twice, but Henry did not shoot. Scott snatched the gun from

Henry and started shooting at Grover. Priest heard four or five shots. She ran away, carrying her

daughter in her arms, but then gave her daughter to someone standing nearby and ran back to Grover,

who died shortly after.

Amber McCorkle was walking with Priest after picking up Priest's daughter when they heard male voices

arguing. McCorkle saw Grover arguing with Henry and Scott. McCorkle heard gunshots but did not see

the actual shooting. After the gunshots stopped, McCorkle saw Priest tending to the mortally wounded

Grover.

The parties stipulated that Henry's hands tested negative for gunshot residue, indicating that he did

not shoot a gun.

Scott testified that in May 2009 he was 21 years old, living with his mother, and unemployed. He supported

himself selling marijuana. On May 31, Scott sold marijuana with his younger brother, James, Grover,

and Cummings. Grover left the apartment building for a short time. While he was gone, he expected James

to sell both Grover's and James' inventory. Grover returned to find that James had sold only his own.

Grover became upset and started yelling at James. The dispute went outdoors. Scott was protective of

James and stepped between Grover and James. Grover then punched Scott in the face and they

began to fistfight. Cummings appeared and pulled a

gun from his pocket. James and Cummings then argued; Scott did not see Cummings with a gun at

that point. Henry stood in the crowd of 70 to 80 people watching. Grover and Scott stopped fighting

but continued to argue when Henry pulled out a gun. Cummings was behind Grover. Scott grabbed the gun

from Henry and shot "two to three times" because Cummings looked like he was going for the gun he

had brandished earlier.

Scott did not intend to kill Grover or Cummings. He shot at them because in his experience, once Henry

pulled out the gun, "they'll shoot their gun."

After the defense rested, the State introduced a certified statement of Scott's AUUW conviction on

January 29, 2008.

During deliberations, the jury sent a note to the trial court requesting a transcript of Scott's testimony.

Neither the State nor Scott objected, and the trial court sent the transcript to the jury room.

The jury returned a verdict of guilty of second degree

murder.

At Scott's sentencing hearing, the State introduced Scott's prior conviction in 2007 on a misdemeanor for

resisting arrest and a Class 4 felony possession of a controlled substance for which he received probation

for the felony conviction. Also, the State introduced Scott's 2008 probation violation for which he pleaded

guilty to AUUW, a Class 4 felony, under the statute later found unconstitutional by the Illinois Supreme

Court in People v. Aguilar, 2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321. 720 ILCS 5/24-1.6(a)(1)

(West 2008). Scott had spent one year imprisoned before his release weeks before this incident.



The State read a victim impact statement from Grover's brother and Simone Priest, both addressing

the effect of Grover's death on his young daughter. In mitigation, Scott's fiance testified that she was

pregnant at the time of his arrest, and that their daughter had limited contact with Scott because of his

incarceration.

The trial court sentenced Scott to 18 years' imprisonment, based on all the factors in aggravation

and mitigation. The trial court referenced Scott's revocation of probation that resulted in a one-year

prison sentence, remarking that Scott had "a very significant and escalating criminal background in [a]

very short amount of time."

Scott's motion to reconsider sentence included an assertion that the trial court improperly considered

Scott's AUUW conviction in aggravation.

ANALYSIS

Ineffective Assistance of Counsel

Under the "strict" test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), a defendant arguing ineffective assistance of counsel must show, in addition to a deficient

performance below an objective standard of reasonableness, that the defendant suffered prejudice

as a result. People v. Houston, 226 Ill. 2d 135, 143, 874 N.E.2d 23, 314 Ill. Dec. 113 (2007). A failure to

satisfy both prongs precludes a finding of ineffective assistance. People v. Patterson, 192 Ill. 2d 93, 107,

735 N.E.2d 616, 249 Ill. Dec. 12 (2000). To satisfy the prejudice prong, defendant must show that but for

counsel's deficient performance, a reasonable probability exists that the result of the proceeding

would have been different. People v. Evans, 209 Ill.

2d 194, 219-20, 808 N.E.2d 939, 283 Ill. Dec. 651 (2004). We may dispose of defendant's ineffective

assistance claim by proceeding to the prejudice prong alone. People v. Hale, 2013 IL 113140, 17, 996 N.E.

2d 607, 374 Ill. Dec. 912. Here, even if we assume arguendo that counsel's inactions constitute deficient

performance, we find no prejudice.

Scott alleges three bases for his claim of ineffective representation; the State responds that all three were

strategic decisions made by defense counsel and did not cause prejudice.

Lynch Evidence

Scott's first assertion of ineffective assistance turns

on the failure of defense counsel to pursue evidence of Cummings' violent character. The State charged

Smith with first degree murder of Justin Grover and attempted murder of Cummings. Before trial, defense

counsel, in support of Smith's claim of self-defense, moved that Cummings' prior robbery conviction be

admitted to show his aggressive and violent character, as allowed by People v. Lynch, 104 Ill. 2d

194, 470 N.E.2d 1018, 83 Ill. Dec. 598 (1984). The trial court had yet to rule on this motion when the

State nol-prossed the charges involving Cummings as a victim. Defense counsel then abandoned the

motion.

The Illinois Supreme Court's opinion in Lynch commands that "when the theory of self defense is

raised, the victim's aggressive and violent character is relevant to show who was the aggressor, and the

defendant may show it by appropriate evidence." Id. at 200. This evidence may include convictions for

crimes of violence. Id. A defendant affirmatively raises the issue of self-defense by presenting some

evidence regarding: (1) the threat of unlawful force



against defendant; (2) an imminent danger of harm; (3) an aggressor other than defendant; (4) the belief

by defendant that danger existed and to avert danger, the kind of force used was necessary; and (5) the

belief was reasonable. People v. Rivera, 255 Ill. App. 3d 1015, 1023, 627 N.E.2d 294, 194 Ill. Dec. 178

(1993). Once defendant presents the facts supporting self-defense, the burden of disproving the existence

of justification beyond a reasonable doubt passes to the State. Id.

The State characterizes Cummings' testimony as

"nearly identical" to Scott's and maintains their accounts agree. The events leading up to the

shooting are not in dispute. An argument between two friends migrated outside and then escalated into a

fistfight involving four individuals. In the course of the argument, Cummings pulled a gun with which he

attempted to hit James. A crowd of onlookers formed, including Henry, a Scott brother. After Henry produced

a gun, the mutual combat situation became deadly.

But conflicting testimony emerged regarding whether Cummings had a gun when Scott grabbed Henry's

gun. Scott testified that he shot "two to three times" because Cummings, who was behind Grover, looked

like he was going for the gun Scott saw him with earlier, and that Cummings admitted having. Scott

stated that he did not intend to kill either Grover or Cummings, but that he shot at them because in his

experience, once Henry pulled out his gun, "they'll shoot their gun." On the other hand, Cummings

testified that he gave the gun away after trying to hit James with it. Thus, the testimony of Scott and

Cummings conflicted on an essential point and Scott's claim of self-defense was sufficiently raised.

We turn to the question of defense counsel's failure to

pursue the motion in limine to impeach Cummings with his prior armed robbery conviction. Scott argues

that he was prejudiced by his counsel's failure to present evidence of Cummings' violent character.

Cummings testified to his being a convicted felon who had been imprisoned three different times for different

offenses, including violation of probation. During cross-examination, Cummings admitted to carrying a

gun for protection. He also stated that he pulled a gun during the fight and attempted to hit James with it, but

missed. Given this evidence, we find that the jury heard extensive evidence about Cummings' character

and his role in the fight. We fail to see how one more conviction, albeit for a forcible felony, would have

produced a change in the trial's outcome. In other words, we do not find any "reasonable probability that

the result of the proceeding would have been different." Evans, 209 Ill. 2d at 220.

[ ]

CONCLUSION

We affirm the circuit court.

__________________________________________________________________________________________



INDIANA

Billeaud v. State, 2015 Ind. App. Unpub. LEXIS 739 (IN Ct. App. 2015)

Key issues:

Burden of production, on the defendant

Even weak production evidence is sufficient

Burden of production, specific elements

Innocence, initial aggressor

Regain innocence, withdrawal

Reasonableness, objective and subjective required

Date: July 1, 2015

Decision:

Jeffrey Billeaud was convicted of Battery Resulting in Serious Bodily Injury, a class C felony,1 and Resisting

Law enforcement, a class D felony.2 Billeaud appeals his convictions, presenting the following restated

issues for review:

1. Did the trial court abuse its discretion when it refused to instruct the jury on self-defense?

2. Did the State present sufficient evidence to sustain Billeaud's conviction for resisting law

enforcement?

We affirm.

The facts favorable to the convictions follow. Pieter Vanderveen and Geneva Boatner are both semi-truck

drivers. On August 16, 2013, they traveled together to pick up a load in Logansport, Indiana. Upon arrival,

Boatner exited the truck to "ground guide" Vanderveen and help him detach the trailer into a

parking space. Transcript at 109. A pickup truck driven by Billeaud traveled past Boatner at a high rate

of speed. Boatner testified that she had to jump out of the way to avoid being hit.

After detaching the trailer, Boatner and Vanderveen

drove the semi-truck without its trailer to the guard shack, where they encountered Billeaud.3

Vanderveen leaned out his window and said to Billeaud, "Dude you need to slow your ass down

before you kill somebody." Id. at 111. Billeaud responded, "[O]ld man, if you get out of the truck I'll

beat you down." Id.

Vanderveen then attempted to get out of his truck so he could proceed to the guard shack. Vanderveen

placed his foot on the battery box while his hands were on the steering wheel but before he reached the

step, Billeaud grabbed a wooden flag post from his own truck, and struck Vanderveen in the back of the

neck. Vanderveen fell to the ground unconscious, and Billeaud quickly drove away.



Jerry Elder, another truck driver, witnessed Billeaud hit Vanderveen. "The driver was getting out of his

truck, and the next thing I know a two by four was swung at the truck driver and [he] went down like a

sack of potatoes." Id. at 74. Cara Small, a security guard who saw only part of the incident, called 9-1-1.

Sergeant Britt Edwards and Officer Kyle Perkins responded to the scene. The officers, through

dispatch, explained the situation to other officers who began to search for Billeaud's truck. Officers located

Billeaud's vehicle on First and Market Street and signaled Billeaud to stop by activating their sirens and

overhead lights. Billeaud saw the four police vehicles behind him, but continued to drive four blocks before

pulling over at the jail parking lot.

On September 19, 2013, the State charged Billeaud with battery by means of a deadly weapon (Count I),

battery resulting in serious bodily injury (Count II), and resisting law enforcement (Count III). On July 23,

2014, the jury found Billeaud guilty as charged. Before sentencing, the judge merged the two battery

convictions and sentenced Billeaud to an aggregated sentence of nine years incarceration. Billeaud now

appeals.

1.

Billeaud contends the trial court erred in refusing to give his tendered self-defense jury instruction. "The

manner of instructing the jury lies within the discretion of the trial court, and we will reverse only for abuse of

discretion." Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). In determining whether a trial court

abused its discretion and improperly refused a tendered instruction, we consider "whether the

proposed instruction correctly states the law, whether the evidence in the record supports the instruction,

and whether the substance of the tendered instruction

is covered by other instructions." White v. State, 726 N.E.2d 831, 833 (Ind. Ct. App. 2000). The State

concedes the proposed jury instruction in this case properly stated the law and was not covered by any

other instructions. Accordingly, we are left to determine whether there was evidence to support a

self-defense instruction.

"A defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has

some foundation in the evidence." Dayhuff v. State, 545 N.E.2d 1100, 1102 (Ind. Ct. App.1989). Even

where evidence of self-defense is weak, the defendant is entitled to a self-defense instruction if

there is "some probative value to support it." Id. A person is justified in using "reasonable force" against

another person to protect himself from what he reasonably believes to be the imminent use of

unlawful force. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. 2011).

The accused is required to show the following

elements to obtain the self-defense instruction when deadly force is used: (1) The accused was in a place

he had a right to be, (2) did not provoke, instigate, or participate willingly in the violence, and (3) had a

reasonable fear of death or great bodily harm. Wilson v. State, 770 N.E.2d 799 (Ind. 2002). "A defendant's

belief that he is being threatened with impending danger must be reasonable and in good faith." White

v. State, 726 N.E.2d 834.

Billeaud argues he is without fault and justified in his actions because he was in "fear of his life", as he

believed many truck drivers carried weapons on them at all times. Transcript at 153. Further, he testified that

Vanderveen appeared to be angry when he yelled out of his window. In response, Billeaud claimed he

turned to give Vanderveen the middle finger but



Vanderveen hit him in the shoulder with the door of the semi-truck, causing him to fall to the ground.

Billeaud then retaliated by grabbing a wooden flag post and striking Vanderveen in the back of the neck.

In rejecting the proposed instruction, the trial court

explained as follows:

You made it very clear that you weren't going to give him a chance based upon the evidence that I heard

for him to do anything that he didn't have anything in his hand... you settled the situation right there on the

spot before you had a chance to be threatened and you made it clear from your testimony, sir, that it

wasn't even going to escalate past that point.

Appellant's Brief at 6. In addition to the trial court's holding, the testimonies of two additional witnesses

support the findings of the trial court. In this case, two people witnessed Billeaud act as the initial aggressor

when he hit Vanderveen with the two-by-four wooden mount. To contradict that evidence, Billeaud testified

to Vanderveen being the initial aggressor when Vanderveen hit Billeaud with the door of his semi-

truck. Even taking Billeaud's facts as true, Billeaud verbally instigated the altercation and struck

Vanderveen in the back of the head as Vanderveen exited from his truck. Billeaud did not act without fault.

At best he acted in mutual combat.

"An initial aggressor, must withdraw from the encounter and communicate the intent to do so to the

other person before he may claim self-defense." Tharpe v. State, 955 N.E.2d 844. Even assuming

Billeaud subjectively feared the imminent use of unlawful force by Vanderveen, his fear was not

objectively reasonable nor was the force used. We therefore conclude the trial court did not err in

denying the self-defense jury instruction.

2.

[ ]

Judgment affirmed.

__________________________________________________________________________________________



OHIO

State v. Daigle, 2105 Ohio App. LEXIS 2639 (OH Ct. App. 2015)

Key issues:

Burden of production on the defendant

Burden of production, elements

Right to argue self-defense if also denying the use of force, inconsistent defenses, permitted

Not required to admit elements of crime to receive self-defense instruction

Date: June 30, 2015

Decision:

This appeal is from the Lake County Court of Common Pleas. Appellant Herbert E. Imondi appeals

his domestic violence conviction. As the jury found Herbert had a prior domestic violence conviction, his

conviction is a fourth degree felony. On appeal, Herbert challenges the trial court's refusal to give a

self-defense jury instruction, the trial court's decision to give a consciousness of guilt for leaving the scene

jury instruction, and argues that his conviction is against the manifest weight of the evidence. For the

following reasons, the conviction is reversed and the matter is remanded.

The following was presented by the state. On

February 5, 2013, Dominic Imondi lived with his mother Christine Imondi and father Herbert Imondi.

After school, Dominic submitted a job application and went home. Upon arrival, Herbert was making dinner

and his mother Christine was performing chores in the house. Dominic went into the living room to watch

TV. His mother eventually joined him. Herbert then entered the room, turned off the TV and said the three

of them were going to have a family meeting. The

tone of Herbert's voice was irritated and uneasy.

Herbert said that he was going to be setting some rules to "make things how they should be." Dominic

responded with "OK" and "alright." Herbert sounded loud and irritated. He then said that Dominic will have

to come home from school and do chores around the house rather than spending time with his friends.

During Herbert's speech, he called Dominic names and made Dominic feel as if Herbert was pushing him

away. At one point, Herbert told Dominic to shut his mouth and if he opened it Herbert would send him to

the hospital. Dominic responded with "F You." Herbert then concluded the meeting stating that everyone is

on their own.

During further conversation with Herbert, Dominic suspected that Herbert might kick him out of the

house. In response, Dominic asked Herbert where he was going to live. Thereafter, the conversation

escalated, and at some point Dominic told Herbert "I'll put you in jail right now." Herbert then threw the



phone to Dominic and said "Go ahead." Dominic started to call 911, and Christine tried to stop him.

However, Dominic pushed either her body or just her hand away and continued to dial. When Dominic got

through to an operator, Herbert removed his vest and glasses and said "that's it." Herbert then charged

Dominic and pushed him into the couch. Dominic testified that Herbert was angry and hostile and had a

look of "no remorse" with a violent demeanor. In response, Dominic attempted to choke his father with

his left arm and bash Herbert's rib cage with his right arm. Herbert then asked Christine, who had been

present during the entire confrontation, "do you see what he is doing to me?"

Dominic eventually broke free and tried to go to the

dining room to put a table between them. Herbert, went into the kitchen and grabbed knives causing

Dominic to run toward the garage to get his shoes. Dominic's progress toward the garage was impeded

by a gate in the entrance of a room in the house. Herbert, who now had a fistful of knives, caught up to

Dominic, grabbed his shirts,1 cut Dominic's arm, and grabbed Dominic near the neck ripping his shirts in

the process. Eventually, Herbert pulled Dominic to the ground and placed him in a headlock and a leglock.

Because Dominic believed that he was going to get cut on the neck, Dominic bit Herbert's arm. While this

was happening, Christine started to call the police.

Eventually, Christine went to where they were fighting and smacked Herbert in the face causing Herbert to

get off of Dominic. Dominic then grabbed a statue off of a shelf and held it over Herbert's head, who was

lying on the ground. Christine asked Dominic not to hurt Herbert. Dominic consequently ran outside with

the statue in his hand to ask for help.

As Dominic was running down his street, he saw his father leave in a black Volvo travelling in the opposite

direction. Christine picked up Dominic in a separate car and took him home. Shortly thereafter the police

arrived. Patrolmen Richard Smith and Brian Yenkovich ordered Dominic onto the ground. After

searching Dominic for weapons, he told the police about the interaction, and the police and Dominic

entered the house. Dominic appeared as if he had been crying. When he was standing in the front entry

way, Smith noticed a steak knife in the family room and a steak knife and blood spots on the wall next to

a vacuum cleaner. When asked about his injuries, Dominic said that he had rib pain and noted a scrape

on his arm which would leave a scar.

Eventually, Officer Raymond O'Brien arrived at the scene to assist Yenkovich and Smith. While O'Brien

was taking Christine's statement, she received a telephone call from Herbert, and she passed the

phone to O'Brien. O'Brien testified that Herbert sounded "pissed off." O'Brien informed Herbert that

he needed to return to the scene. Herbert replied that he was at the Mentor Police Station and hung up.

O'Brien then informed the station to arrest Herbert.

Herbert's defense consisted of challenging Christine's and Dominic's credibility, as well as providing his own

version of events. According to Herbert, at the family meeting, he told Dominic that he would no longer

tolerate Dominic hanging out with people connected to drugs, and that henceforth Dominic would go to

church. Moreover Herbert forbid Dominic from slamming the Bible and claiming that he is the

antichrist. Dominic responded with "F you" and threatened to throw Herbert in jail. Herbert threw the

phone to Dominic and responded "Good Luck. Call them. Try it." While Dominic was dialing the phone,



Christine attempted to stop him; however, Dominic pushed her away.

Dominic then jumped on the loveseat in the living

room and said "this is my castle" and "I am going to throw you in jail." Herbert replied that Dominic better

find some other place to live. In response, Dominic grabbed Herbert by the neck, pulled him down to the

ground and started to choke him. Christine then broke the two of them up and Dominic said "I am going to

kill you." Dominic ran into the kitchen and tried to grab two knives; however Herbert got to the knives first. At

this point, Christine began dialing 911. Herbert eventually caught up to Dominic, and Dominic

grabbed him and pulled him to the ground. Dominic positioned himself on top of Herbert and began

punching him while Herbert begged Dominic to stop. Christine then came over and hit Herbert in the face

causing his glasses to break. Dominic then got up and grabbed a statue saying "I am going to kill you."

Christine asked Dominic not to harm him. Dominic ran out of the house, and Christine ran to the bedroom

causing Herbert to believe that she was going to get the gun. Consequently, Herbert left the scene.

Herbert testified that on previous occasions he had

witnessed Dominic acting aggressive and violent. Herbert also testified that he was fearful for his life

when Dominic put his hands on him.

Although, Herbert denied that he caused any physical harm to Dominic, at other times he claimed that he

grabbed Dominic's left arm for "dear life" to prevent Dominic from hitting him with a statue. Herbert also

testified that he grabbed Dominic's shoulder to prevent Dominic from hitting him The trial court

properly instructed the jury that they were free to accept or reject all or part of any witness's testimony.

Nevertheless after Herbert testified, and outside the presence of the jury, the state argued that Herbert

was not entitled to a self-defense instruction because he never admitted causing physical harm to Dominic.

According to the state, self-defense requires a defendant to acknowledge their actions satisfy the

elements of the offense before a defendant is entitled to a jury instruction. The trial court agreed and

refused to give a self-defense instruction. The jury found Herbert guilty and he was sentenced Herbert to

15 months in prison.

This appeal followed.

As his first assignment of error, Herbert asserts:

"The trial court erred when it refused to instruct the jury as to self-defense in violation of the

defendant-appellant's rights to due process and fair trial as guaranteed by the Fifth and

Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of

the Ohio Constitution."

Our standard of review for determining whether the trial court properly refused to give a jury instruction is

de novo. State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, 34. "Requested jury instructions

should be given if they are (1) correct statements of the applicable law, (2) relevant to the facts of the

case, and (3) not included in the general charge to the jury." State v. Mitchell, 11th Dist. Lake No. 2001-

L-042, 2003-Ohio-190, at 10, citing State v. DeRose, 11th Dist. Lake No. 2000-L-076, 2002-Ohio-4357, at

33, quoting State v. Edwards, 11th Dist. Lake No. 2001-L-005, 2002-Ohio-3359, at 20. In determining

whether a self-defense jury instruction is warranted, we look to "whether the defendant has introduced

sufficient evidence, which, if believed, would raise a



question in the minds of reasonable men concerning the existence of such issue." State v. Melchior, 56

Ohio St.2d 15, 381 N.E.2d 195 (1978), paragraph one of the syllabus. We evaluate the evidence in a light

most favorable to the defense. State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407, 3, 941 N.E.2d

1265 (3rd Dist. 2010) (Citation omitted.).

Herbert maintains that the trial court was required to give a self-defense jury instruction because he

produced sufficient evidence indicating that (1) he was not at fault for creating the situation, (2) he had a

bona fide belief he was in imminent danger, (3) he did not violate a duty to retreat, and (4) the force used

was necessary. See State v. Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-4416, 23 (listing the

requirements for a self-defense instruction). The state does not dispute that these requirements were met;

rather, they assert that Herbert is not entitled to the instruction because he unequivocally denied using

force against Dominic. Therefore, the issue is whether Herbert was entitled to a self-defense instruction in

the face of presenting evidence supporting inconsistent defenses, i.e., that Herbert did not harm

Dominic, but if he did, then it was in self-defense.

The Ohio Supreme Court has conflicting precedents on whether a trial court must give jury instructions

when the defendant has requested jury instructions that go to inconsistent defenses. In State v.

Champion, 109 Ohio St. 281, 286-87, 2 Ohio Law Abs. 68, 2 Ohio Law Abs. 87, 142 N.E. 141 (1924),

the Ohio Supreme Court found that the appellant was not entitled a jury instruction for both accident and

self-defense, explaining: "If the evidence warrants, the defendant has a right to one request or the other.

By no manner of logic, law, or legerdemain is he entitled to both."

Later, in State v. Martin, 21 Ohio St.3d 91, 21 Ohio B. 386, 488 N.E.2d 166 (1986), the Ohio Supreme Court

considered whether "the state of Ohio may * * * place the burden of proving self-defense on a defendant if

the truth of that defense would negate an essential element of the crime charged." Id. at 92-93. In Martin,

the defense argued that placing the burden on him to demonstrate he acted in self-defense forced him to

negate the aggravated murder mens rea, the crime for which he was convicted. Id. at 93. The Ohio

Supreme Court rejected Martin's argument holding that self-defense is an admission to "the facts claimed

by the prosecution" that utilizes "independent facts or circumstances which the defendant claims exempt

him from liability." Id. at 94.

However, in State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 140, 873 N.E.2d 828, the Ohio Supreme

Court noted that a lawyer's decision to present "inconsistent alternative [defense] theories is not per

se deficient performance" as "the decision to advance two different theories of non-culpability is a trial tactic

or strategy" that is not so unreasonable as to constitute ineffective assistance of counsel.

In light of Mundt, we cannot read Champion and

Martin as requiring a defendant to admit the state's case in chief in order to argue self-defense. If arguing

inconsistent defenses is a trial tactic that a competent trial attorney would utilize, then the jury should be

instructed on the inconsistent defenses. Our conclusion is in agreement with the federal standard,

which permits a defendant to argue inconsistent theories before a jury. See Mathews v. United States,

485 U.S. 58, 62, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988) (holding that "even if the defendant denies one

or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient

evidence from which a reasonable jury could find



entrapment."). Although Mathews concerned whether a defendant was entitled to an entrapment instruction

while also contesting the prosecution's case, other courts have found Mathews applicable when a self-

defense instruction is requested. United States v. Goldson, 954 F.2d 51, 55 (2d Cir. 1991); United

States v. Browner, 889 F.2d 549, 555 (5th Cir. 1989).

Finally, there is no reason to require the defense to admit to the elements of the crime in order to receive

a self-defense instruction. Although we have been unable to find a rationale for prohibiting instructions

on inconsistent defenses, supporters are concerned with condoning perjury. See Mathews 485 U.S. at

65-66 (discussing this issue). However, it is possible to argue inconsistent defenses without a defendant

committing perjury. Herbert's testimony that (1) Dominic was not harmed in the altercation, but that

even if he were harmed, (2) Herbert acted in self-defense at all times are not inconsistent.

Consequently, the first assignment of error has merit.

As his second assignment of error, Herbert alleges:

"The trial court erred when it instructed the jury on

flight in violation of the defendant-appellant's rights to due process and (a) fair trial as

guaranteed by the Fifth and Fourteenth amendments to the United States Constitution

and Section 10 and 16, Article I of the Ohio Constitution."

Within this assignment, Herbert alleges that the trial

court erred by giving a flight instruction because the evidence indicates Herbert ran from the scene to the

police station. Therefore, Herbert claims that his flight from the scene is not evidence of consciousness of

guilt because he never tried to evade the police.

The case law cited in the first assignment of error as

to whether a jury instruction should be given is applicable here. Furthermore, federal courts look to

the strength by which the evidence supports the following four inferences in determining whether a

flight instruction should be given: "(1) from the defendant's behavior to flight; (2) from flight to

consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime

charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the

crime charged." United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977).

We agree that leaving a volatile situation and going to

a police station does not constitute consciousness of guilt as that is simply not the destination of one with a

guilty conscious. Accordingly, appellant's second assignment has merit.

As his third assignment of error, Herbert alleges:

"The trial court erred to the prejudice of the

defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence."

Within this assignment, Herbert claims that his

conviction is against the manifest weight of the evidence. He does not provide a succinct explanation

of how the jury erred; rather, he merely recites his version of events as evidence that Dominic and

Christine are incredible witnesses.

"[A] manifest weight challenge requires the reviewing court to play the role of a 'thirteenth juror.' State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997 Ohio 52, 678 N.E.2d 541 (1997). A reviewing court should be

cognizant of the fact that the jury is in the best



position to assess the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212,

paragraph one of the syllabus (1967). For an appellate court to overturn a conviction as being

against the manifest weight of the evidence, it must find that 'the jury clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The

discretionary power to grant a new trial should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.' Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717 (1983)." State v. Lynch, 11th Dist.

Ashtabula No. 2013-A-0039, 2014-Ohio-1775, 21.

R.C. 2919.25(A) states: "No person shall knowingly cause or attempt to cause physical harm to a family

or household member." R.C. 2919.25(D)(3) elevates

the sentence of a violation of R.C. 2919.25(A) to a fourth degree felony.

The jury was free to credit the state's witnesses over

Herbert's testimony, and his conviction therefore is not against the manifest weight of the evidence.

The third assignment of error is without merit.

The judgment of the trial court is reversed, and we

remand for further proceedings.

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2015 #28 self defense weekly law report

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