State v. Moore ( 1994 )

While I concur in the analysis of the lead opinion as to the final six assignments, I cannot agree with its treatment of the first assignment. In concluding that appellant was not denied a fair trial as a result of certain statements made by the prosecutor during closing arguments, the lead opinion holds that the statements were not prejudicial because they were warranted under both the law of this state and the facts of this case.

After reviewing the relevant case law and the record before us, I conclude that the statements were prejudicial because they contain a misstatement concerning appellant's duty to remain in his home after the first confrontation, i.e., his duty to retreat.

During the rebuttal portion of the state's closing argument, the prosecutor stated to the jury that under the facts of this case, appellant "lost" the defense of self-defense when he came back outside his home with a gun and confronted his neighbor, Patrick Dial, for the second time. The sole inference which the jury could have drawn from this statement was that after appellant had initially retreated into his home, he was required under the law to remain inside his home and avoid any further confrontation with Dial, regardless of whether he felt Dial might still be on appellant's property or whether he felt Dial posed a threat to appellant or his family or property.

In concluding that the prosecutor's remark constituted a correct statement of the law of this state, the lead opinion relies upon the decision in Cleveland v. Hill (1989), 63 Ohio App. 3d 194, 578 N.E.2d 509, in which the Eighth Appellate District held that the victim of a physical attack is obligated to retreat into his home from the driveway on his property before he can properly act in self-defense. For the following reasons, I find the logic supporting this holding to be unpersuasive.

As the lead opinion aptly notes, a criminal defendant is not entitled to a jury instruction on the affirmative defense of self-defense unless he has presented some evidence establishing,inter alia, that he did not violate any duty to retreat or avoid the danger. However, as an exception to this basic requirement, the Supreme Court of Ohio has consistently held that when the assault or attack occurs in a person's home, that person is not obligated to retreat any further before employing any means needed to repel the assault. See State v. Peacock (1884),40 Ohio St. 333.

Even though the "home" exception to the duty to retreat has existed for more than a century, the Supreme Court of Ohio has never specifically stated what constitutes a person's "home" in this particular context. Nevertheless, a review of recent Ohio Supreme Court decisions indicates that the person does not have to be within the "four walls" of the structure itself before the exception will apply.

For example, in State v. Jackson (1986), 22 Ohio St. 3d 281, 22 OBR 452, 490 N.E.2d 893, the defendant shot his alleged assailant on the porch of his apartment. While ultimately concluding that the other requirements for self-defense had not been met, the court stated if a general instruction on self-defense had been warranted under the facts of the case, "a special instruction on [the defendant's] duty to retreat when attacked in or about his home" would have been appropriate. (Emphasis added.) Id. at 284, 22 OBR at 454-455,490 N.E.2d at 893.

In this district, the court has held that a tent and its campsite are the equivalent of "home" in regards to the duty to retreat. State v. Marsh (1990), 71 Ohio App. 3d 64,593 N.E.2d 35.

Although the lead opinion cites Jackson as being supportive of its holding on this issue, it does not attempt to explain why the porch in Jackson was "about" the home, but the driveway in the instant case was not. Given the precedent in this state and district as to the right of a property owner to defend from or to eject a trespasser from either his home or property, I do not believe that such a distinction can be made. Accordingly, I would hold that the "home" exception to the duty to retreat was applicable to appellant's driveway.

As a general proposition, every individual in this state "has the right to defend himself and his property by the use of such force as circumstances require to protect himself against such danger as he has good reason to apprehend * * *." State v.McLeod (1948), 82 Ohio App. 155, 157, 37 Ohio Op. 522, 522,80 N.E.2d 699, 700. Ohio courts have also consistently held that in exercising this right to defend self and property, every individual has a constitutional right to have possession of a firearm.

In interpreting Section 4, Article I of the Ohio Constitution, which contains the right-to-bear-arms clause, the Supreme Court of Ohio has recently held again that the clause "was obviously implemented to allow a person to possess certain firearms for defense of self and property." (Emphasis added.)Arnold v. Cleveland (1993), 67 Ohio St. 3d 35, 43, 616 N.E.2d 163,169, citing State v. Hogan (1900), 63 Ohio St. 202, 218-219,58 N.E. 572, 575-576.

Despite its constitutional underpinnings, the right to defend self and property is not absolute. The right has always been subject to certain limitations which are predicated upon the nature of the threat to self or property, i.e., in exercising the right to defend, a person can only use the force necessary to subdue the instant threat. McLeod. Thus, while a person may be justified under certain circumstances in employing lethal force to protect herself or her home, Allison v. Fiscus (1951),156 Ohio St. 120, 124, 45 Ohio Op. 128, 130, 100 N.E.2d 237, 239-240, such force cannot be used to protect mere property:

"While a person has a right to protect his property from a trespass, and, after warning or notice to the trespasser, use such force as is reasonably necessary so to do, he cannot unlawfully use fire arms to expel the intruder where he has no reasonable ground to fear the trespasser will do him great bodily harm." State v. Childers (1938), 133 Ohio St. 508, 516,14 N.E.2d 767, 770.

However, the converse of the Childers holding has also been recognized by the courts of this state, i.e., a property owner can use deadly force to eject a trespasser if he reasonably fears death or great bodily harm. See, e.g., State v. Williams (Sept. 30, 1992), Hamilton App. Nos. C-910582 and C-910583, unreported, at 4, 1992 WL 247549. Moreover, Ohio courts have recognized that if the firearm is employed in a nonthreatening manner, a person can be in possession of a firearm while ejecting a trespasser who does not pose an imminent threat to the person.

For example, in State v. Fields (1992), 84 Ohio App. 3d 423,616 N.E.2d 1185, the defendant successfully appealed a conviction of a charge of aggravated menacing, R.C. 2903.21. The charge was based upon an incident in which the defendant ejected two trespassers from private property while in possession of a gun. In concluding that the defendant's conviction had not been predicated upon sufficient evidence, the Twelfth Appellate District emphasized that the defendant had not verbally threatened the trespassers with the gun and had not pointed the gun at them. She merely had it visibly in her possession.

Agreeing with the foregoing logic, I conclude that under the laws of this state, not only does a property owner have a right to confront any trespasser and attempt to eject him from the property, but that the owner can lawfully carry a firearm when confronting the trespasser. While the owner cannot use or threaten to use the firearm unless the trespasser poses an imminent threat to the owner's life or physical well-being, the owner can, nevertheless, carry the firearm when he is uncertain as to the amount of danger posed by the trespasser.

Given that a property owner can lawfully confront any trespasser, I further conclude that the law does not require the property owner to retreat into his house when it is necessary to arm himself in meeting the potential threat posed by a trespasser. Stated differently, I conclude that minimally the "home" exception to the duty to retreat is also applicable to the curtilage upon which the home is situated.

Based on the proceeding logic, the "home" exception is arguably extendable to the furthermost perimeters of the property; however, that is not an issue with which we are faced at this time.

In light of the historical and fundamental nature of the right to defend self and property, any other conclusion would create not only an inconsistency in the law, but would also place an unrealistic restriction upon a property owner. While I would agree that the law should attempt to discourage the use of deadly force, it should not do so at the expense of curbing such a basic right.

As was noted previously, the prosecutor in this case stated to the jury during closing arguments that appellant had "lost" the defense of self-defense when he went back outside his house following the initial confrontation. Given the foregoing discussion, the prejudicial nature of the statement is obvious. As to this point, I would also note that the trial court did not give an instruction to the jury on the "home exception" to the duty to retreat. As a result, even if the jury believed appellant's testimony as to the nature of the second confrontation, it still could have found appellant guilty for the reason put forth by the prosecutor, to-wit: that by simply leaving his home appellant lost his right to assert self-defense.

For the foregoing reasons, I would hold that appellant was denied a fair trial as a result of the prosecutor's statement concerning the duty to retreat. Under this analysis, appellant's first assignment would have merit. Accordingly, I would reverse the judgment of the trial court and remand the action for a new trial.