Martin v. State , 2022 Ohio 2580 ( 2022 )

[Cite as Martin v. State, 2022-Ohio-2580.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ISAIAH MARTIN, :
Plaintiff-Appellant, :
No. 110919
v. :
STATE OF OHIO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-926517
Appearances:
Scott & Winters Law Firm, LLC, Joseph F. Scott, and
Ryan A. Winters, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jillian Eckart, Assistant Prosecuting
Attorney, for appellee.
SEAN C. GALLAGHER, A.J.:
Plaintiff-appellant Isaiah1 Martin (“Martin”) appeals from the trial
court’s decision denying his motion for summary judgment and granting defendant-
appellee the state of Ohio’s (“the state’s”) motion for summary judgment on Martin’s
claim for wrongful imprisonment. Upon review, we affirm.
I. Factual and Procedural History
On September 7, 2016, a prescheduled child-visitation exchange was
to occur at 8 p.m. between Mark D’Amore (“D’Amore”) and Amanda Reese
(“Reese”) in the parking lot of the Cleveland Division of Police - First District station.
Reese has two children with D’Amore, and they have a shared parenting agreement.
Because of the contentious relationship between D’Amore and Reese, they
conducted exchanges in the parking lot of the police station.2
On the evening of the exchange involved in this matter, D’Amore did
not appear on time for the child exchange. D’Amore and Reese exchanged multiple
hostile text and phone communications, though no explicit physical threats
occurred. At some point, Reese called Martin, whom she was dating, and relayed
the contents of the text messages D’Amore had been sending her. While on the
phone with Reese, Martin overheard an argument occurring between D’Amore and
1 In the case caption for the lower court case, Martin’s first name is misspelled as
“Isaih.”
2 D’Amore had previously been convicted of domestic violence against Reese, and
he also had prior convictions for vehicular assault and attempted drug possession. There
is no evidence of physical violence occurring at the child-visitation exchanges.
Reese once D’Amore arrived at the police station. Rather than contacting the police,
Martin proceeded to drive to the police station parking lot with a loaded gun.
D’Amore had arrived on foot at the police station with the children,
D’Amore’s then-girlfriend Latasha Wisniewski (“Wisniewski”), and Wisniewski’s
teenage daughter shortly after 8:30 p.m. While D’Amore was saying goodbye to his
children, a verbal altercation between Wisniewski and Reese was occurring. At this
point, Martin pulled into the police station parking lot and D’Amore immediately
approached Martin’s truck. D’Amore was not armed. The undisputed evidence
showed that during the altercation, Martin shot D’Amore in the shoulder.
The trial record contains differing accounts of exactly what occurred
during the confrontation. Some witnesses testified that D’Amore ran over to the
truck aggressively and challenged Martin to a fight. Other witnesses testified that
D’Amore calmly walked over to the truck and Martin immediately put a gun in
D’Amore’s face. D’Amore testified that when he walked up to Martin’s truck, Martin
said, “I told you I was going to put you in a body bag.” Martin testified that D’Amore
rushed his truck and said that he wanted to fight. No other witnesses could testify
as to what either man said during the encounter, although Wisniewski testified that
she told D’Amore to stop when he headed toward Martin’s truck because she
thought they were going to fight. Ultimately, Martin admitted that he shot D’Amore,
but he asserted that he did so in self-defense.
Between 8:30 and 8:45 p.m., police officers, hearing yelling and
screaming outside, exited the police station and found Martin holding a gun and
calmly stating that he had shot D’Amore. Martin surrendered his gun to the police
immediately and was generally cooperative, telling police that D’Amore had come
after him and Martin was defending himself.
In September 2016, Martin was charged in a six-count indictment
with attempted murder, two counts of felonious assault, two counts of endangering
children, and intimidation of a crime victim or witness in Cuyahoga C.P. No. CR-16-
609654-A. The attempted murder and felonious assault charges each carried one-
and three-year firearm specifications and weapons forfeiture specifications. The
criminal case proceeded to a bench trial, in which Martin asserted that he acted in
self-defense. On May 25, 2017, the criminal court found Martin not guilty of
attempted murder, endangering children, or intimidation. However, the court
found Martin guilty of two counts of aggravated assault as “lesser included” offenses
of felonious assault, along with the attendant one- and three-year firearm
specifications. The court rejected his claim of self-defense. The court announced its
verdict, in relevant part, as follows:
So in reaching my verdict I have considered the affirmative
defense of self-defense and the burden placed on the defense to prove
by a preponderance of the evidence all three elements of that defense.
Further, this Court has also considered Revised Code
2901.05(B)(1), more commonly referred to as the Castle doctrine,
which relieves the defendant’s burden to prove those three elements. I
am aware of what the defendant must establish in order for that
presumption to apply.
Further, I am also aware that the presumption may not apply or
that may be rebutted by [the] State of Ohio, which would then require
the defense to establish all three elements of the affirmative defense.
This Court, after careful and deliberate review of all of the
evidence, finds that the State of Ohio has not presented evidence that
rises to the acceptable legal standard of guilty beyond a reasonable
doubt as to Counts Two and Three [the felonious assault charges.]
This Court does find, however, that the State has presented
evidence that rises to the legal standard of guilty beyond a reasonable
doubt as to the lesser included offenses of aggravated assault, as
defined in Revised Code 2903.12, with both the one and three-year
firearm specifications.
Following merger, the court sentenced Martin to three years of imprisonment on the
firearm specifications to be served prior and consecutive to a one-year term of
community-control sanctions on the underlying aggravated assault conviction.
Martin appealed, and this court reversed his conviction of aggravated
assault upon concluding that “when the trial court found Martin not guilty of
felonious assault, it could not, as a matter of law, find him guilty of aggravated
assault.” State v. Martin, 2018-Ohio-1098, 109 N.E.3d 652, ¶ 14 (8th Dist.)
(“Martin I”). As observed in Martin I, instead of being a lesser-included offense of
felonious assault, “aggravated assault is an inferior degree of felonious assault
because its elements are identical to or contained within the offense of felonious
assault, coupled with the additional presence of one or both mitigating
circumstances of sudden passion or a sudden fit of rage brought on by serious
provocation occasioned by the victim.” Martin I at ¶ 8, citing State v. Searles, 8th
Dist. Cuyahoga No. 96549, 2011-Ohio-6275; see also State v. Deem, 40 Ohio St.3d
205, 210-211, 533 N.E.2d 294 (1988). Therefore, “a finding of not guilty of felonious
assault necessarily precludes a finding of guilty of aggravated assault as an inferior
offense of felonious assault.” Id. at ¶ 14.3 On remand to the trial court in the criminal
case, Martin’s conviction was vacated in accordance with this court’s mandate in
Martin I.4
On December 12, 2019, Martin filed a civil complaint against the state
seeking a declaration that he was a wrongfully imprisoned individual as defined by
R.C. 2743.48(A), Ohio’s wrongful-imprisonment statute, and therefore entitled to
compensation. The state filed its answer on January 8, 2020. Thereafter, the parties
filed competing motions for summary judgment. Following a hearing, the trial court
entered a journal entry on July 1, 2021, denying Martin’s motion for summary
judgment and permitting the parties to file additional briefing on the state’s motion
for summary judgment. Supplemental briefing was filed by the parties. The state
argued that summary judgment was warranted in its favor because Martin could not
demonstrate by a preponderance of the evidence his actual innocence as required
under R.C. 2743.48(A)(5) for his wrongful-imprisonment claim. Martin maintained
that he was actually innocent and that the record demonstrated genuine issues of
material fact as to whether he acted in self-defense.
3 The Martin I Court also indicated that “[t]he trial court * * * did not discuss
provocation sufficient to demonstrate * * * that it considered aggravated assault as an
inferior offense and merely used imprecise wording.” Id. at ¶ 12.
4 We note that Martin was not acquitted by reason of self-defense and, instead, had
his conviction vacated for legal error. The court in Martin I did not consider Martin’s
self-defense claim because it resolved the appeal on other grounds. The rejection of his
self-defense claim in his criminal trial does not preclude him from asserting that claim in
support of his wrongful-imprisonment action.
On September 20, 2021, the trial court granted the state’s motion for
summary judgment. In its corresponding opinion, the trial court found that Martin
could not satisfy his burden under R.C. 2743.48(A)(5) of establishing his actual
innocence, stating in relevant part:
Here, Plaintiff cannot sustain his burden [to show actual
innocence]. There is no dispute that Plaintiff pulled out a gun and shot
the victim. It [is] clear from the record that the trial court delivered its
verdict by mistakenly considering aggravated assault as a lesser-
included offense, rather than an inferior offense. In the criminal case,
the legal and technical result of this error caused the conviction to be
vacated. While this Court understands the Eighth District’s opinion
that a criminal conviction for aggravated assault cannot legally be
sustained after a finding of not guilty on a charge of felonious assault,
the evidence nevertheless establishes Plaintiff’s criminal conduct, and
the trial court’s finding of criminal culpability and rejection of his self-
defense argument.
The ultimate criminal disposition for the legal and procedural
posture of the underlying criminal case does not negate the factual
findings as applied in this civil matter. * * * [T]he facts adduced at trial
still remain the facts of the case. The Plaintiff admitted at trial that he
shot the victim. Moreover, Plaintiff has not claimed actual innocence in
his affidavit, briefing, or at oral argument in support of his civil action.
After review of the record, this Court agrees with the trial court that
based on the facts of the case, the Plaintiff cannot avail himself of [the]
self-defense protection, and, in very least, committed the crime of
aggravated assault.
Therefore, Plaintiff cannot establish actual innocence, and finds
that [the] Plaintiff’s claim must fail. * * *
On October 19, 2021, Martin filed a timely notice of appeal.
II. Assignments of Error
Martin presents the following assignments of error for our review:
I. The trial court erred when [it] failed to conduct an independent
review of the facts, but rather relied solely upon the prior
determinations in the criminal proceeding, when ruling on the parties’
cross-motions for summary judgment.
II. The trial court erred when it relied upon the prior determinations of
fact in the criminal proceeding as if those findings were to be given
preclusive effect.
III. The trial court erred in granting Defendant-Appellee’s motion for
summary judgment where genuine issues of material fact remained to
be determined at trial.
III. Legal Analysis
We begin with a brief overview of both the summary judgment
standard and Ohio’s wrongful imprisonment statute.
Appellate review of summary judgment is de novo and is governed by
the standard set forth in Civ.R. 56. See State ex rel. Awms Water Solutions v. Mertz,
162 Ohio St.3d 400, 2020-Ohio-5482, 165 N.E.3d 1167, ¶ 23. “Under Civ.R. 56(C),
summary judgment is appropriate when (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears after construing the evidence most strongly in the nonmoving party's favor
that reasonable minds can come to but one conclusion.” Mertz at ¶ 23.
“Actions against the state for wrongful imprisonment are governed by
R.C. 2743.48, which places the burden on a claimant to prove by a preponderance
of the evidence that he or she meets the definition of a ‘wrongfully imprisoned
individual.’” Bundy v. State, 143 Ohio St.3d 237, 2015-Ohio-2138, 36 N.E.3d 158,
¶ 15, quoting Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229,
paragraph one of the syllabus. To be deemed a wrongfully imprisoned individual,
the claimant must satisfy each of the five requirements of R.C. 2743.48(A). See
Bundy at ¶ 15. If a common pleas court determines all five requirements are satisfied
and declares the claimant is therefore a wrongfully imprisoned individual, then the
claimant is entitled to pursue an action in the Court of Claims against the state for
monetary compensation. Id. at ¶ 16.
The terms of eligibility and the relief provided in R.C. 2743.48
demonstrate that the state’s liability is “narrow in that only a very limited class of
individuals can meet the five simple but strict requirements of R.C. 2743.48(A).”
Bundy at ¶ 17. “The wrongful imprisonment statutes were intended to compensate
the innocent for wrongful imprisonment. They were never intended, however, to
compensate those who had merely avoided criminal liability.” Chandler v. State, 95
Ohio App.3d 142, 147-148, 641 N.E.2d 1382 (8th Dist.1994), citing Walden v. State,
47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989).5 As stated in Doss, “[n]ot every person
who is released from prison because of a successful appeal is entitled to
compensation.” Id. at ¶ 22.
5 In Walden, the Supreme Court of Ohio determined that a person who is acquitted
by reason of self-defense may seek statutory compensation for wrongful imprisonment,
but that the judgment of acquittal is not to be given preclusive effect in a proceeding under
R.C. 2305.02. Walden at paragraphs one and two of the syllabus. The Supreme Court
recognized that “[i]n enacting R.C. 2305.02, the General Assembly intended that the court
of common pleas actively separate those who were wrongfully imprisoned from those who
have merely avoided criminal liability.” Walden at 52.
A. The Trial Court’s Independent Review
We will address Martin’s first and second assignments of error
together.6 In his first assignment of error, Martin argues the trial court erred by
failing to conduct an independent review of the evidence presented in the civil
wrongful-imprisonment action and by relying solely upon the prior factual
determinations in the criminal trial proceeding. In his second assignment of error,
Martin argues that the trial court erred by relying on the findings made in the
criminal trial proceeding as if those findings were to be given preclusive effect. More
specifically, Martin asserts that the trial court relied solely upon the rejection of his
self-defense claim in the criminal trial as the basis for rejecting his self-defense claim
in the civil matter. Martin generally asserts that the summary-judgment record
contains clear evidence supporting his claim of self-defense, thereby creating a
genuine issue of material fact such that summary judgment in the state’s favor was
inappropriate.
We agree with Martin’s statement that the judgment of a criminal
court is not to be given preclusive effect to a wrongful imprisonment claim under
R.C. 2743.48. See Walden at 52. However, the record does not support Martin’s
assertions that the trial court failed to conduct any independent review of the facts
and treated the findings of the trial court in the criminal case as preclusive. The trial
6 We recognize that our review on summary judgment is de novo and that we apply
the same standard under Civ.R. 56(C). However, “[Civ.R. 56(C)] mandates that the trial
court make the initial determination whether to award summary judgment; the trial
court’s function cannot be replaced by an ‘independent’ review of an appellate court.”
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992).
court’s opinion reflects that it reviewed the record and considered the facts of the
underlying incident as they related to Martin’s inability to sustain his burden of
affirmatively establishing his innocence. The trial court properly understood from
the Martin I decision that Martin’s conviction for aggravated assault could not be
legally sustained, but the court found that “the evidence nevertheless establishes
Plaintiff’s criminal conduct, and the trial court’s finding of criminal culpability and
rejection of his self-defense argument.” While the record reflects that the trial
court’s opinion did not contain an in-depth analysis of Martin’s self-defense claim,
it was not required to contain such an analysis. See Maddox v. E. Cleveland, 8th
Dist. Cuyahoga No. 96390, 2012-Ohio-9, ¶ 23; Civ.R. 52. The trial court’s opinion
makes clear that upon its own “review of the record,” it determined “based on the
facts of the case, [Martin] cannot avail himself of [the] self-defense protection, and,
in the very least, committed the crime of aggravated assault.” Accordingly, Martin’s
first and second assignments of error are overruled.
B. The Summary Judgment Ruling
In his third assignment of error, Martin argues the trial court erred
by granting the state’s motion for summary judgment where genuine issues of
material fact remained to be determined at trial. Specifically, Martin argues that the
trial court ignored the holding in Martin I, vacating his aggravated assault
convictions, when it found that Martin, “in the very least, committed the crime of
aggravated assault.” Martin also reiterates his assertions that the trial court failed
to properly consider his claim of self-defense and that the summary-judgment
record precluded a finding that Martin was guilty of aggravated assault as a matter
of law.
In this wrongful-imprisonment action, the parties agree that the first
four requirements of R.C. 2743.48(A) are satisfied. This appeal is primarily
concerned with the “actual innocence” standard set forth under R.C. 2743.48(A)(5),
which requires the claimant to prove that “the offense of which the individual was
found guilty, including all lesser-included offenses, was not committed by the
individual or that no offense was committed by any person.”7 The claimant bears
the burden of affirmatively proving by a preponderance of the evidence his actual
innocence of the crimes for which he was convicted and all lesser-included offenses.
Ellis v. State, 64 Ohio St.3d 391, 393, 596 N.E.2d 428 (1992); see also Doss, 135 Ohio
St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, at ¶ 20.
Martin was charged with felonious assault and found guilty of
aggravated assault. He does not dispute that he shot D’Amore, and he does not make
any argument that the state failed to present evidence of the crime of which he was
found guilty. However, he has consistently maintained that he is actually innocent
because he was acting in self-defense. Therefore, relative to this action, for Martin
to establish that he was wrongfully imprisoned, he must prove by a preponderance
7 R.C. 2743.48(A)(5) also references a violation of the Brady rule; however, no
Brady violation occurred in this case. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 10 L.E.2d 215 (1963).
of the evidence that he has a valid self-defense claim. See Ellis, 64 Ohio St.3d at 395,
596 N.E.2d 428.
To establish self-defense, Martin must prove the following elements:
“(1) that the defendant was not at fault in creating the situation giving rise to the
affray; (2) that the defendant had a bona fide belief that 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 such force; and (3) that the defendant did not violate any duty to
retreat or avoid the danger.” State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240(2002), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph
two of the syllabus. The state argues that Martin is unable to satisfy the
requirements for self-defense because he was at fault in creating the situation giving
rise to the affray — or at a minimum escalated the situation — and because he did
not have a bona fide belief of imminent danger of death or great bodily harm.
With respect to the first requirement of a self-defense claim, the state
argues that Martin created the confrontation when, without attempting to call 911
or seek assistance from police, he drove directly to the scene of the child-custody
exchange and brandished a weapon at D’Amore. Martin’s position is that D’Amore
created the situation giving rise to the affray by charging his vehicle, threatening him
to a fight, and reaching into his car and attempting to gain control of the gun.
With respect to the second requirement of a self-defense claim, the
state argues that Martin could not have had a bona fide belief that he was in
imminent danger because D’Amore was unarmed and Martin was in a large truck.
The state also argues that Martin could have escaped the scene without the use of
deadly force by exiting the parking lot or by rolling up his window and locking the
door. Further, the state points to Reese’s testimony that D’Amore was not known to
carry a gun and that the child-custody exchanges had taken place in the police
station parking lot for over a year and there had never been acts of physical violence.
Martin’s position is that he did not know D’Amore was unarmed, he knew that
D’Amore had a history of violence and aggression, D’Amore was charging his vehicle
aggressively, and based on the layout of the parking lot and D’Amore’s position
relative to Martin’s truck, he could not have exited the parking lot.8
We agree with the trial court that “based on the facts of the case,
[Martin] cannot avail himself of [the] self-defense protection * * *.” The record
shows that rather than contacting the nearby police for help, Martin, who was aware
of the verbal confrontation that was occurring, drove directly to the police station
parking lot in his pickup truck with a loaded gun and shot D-Amore, who was
unarmed and approached on foot. The shooting occurred in the presence of the
children with whom Martin was purportedly “concerned” and during a child-
visitation exchange that had occurred for over a year without any physical violence.
Reasonable minds could only conclude that Martin was not acting in self-defense.
“‘Ohio courts have long recognized that a person cannot provoke
assault or voluntarily enter an encounter and then claim a right of self-defense.’”
8 Martin also referenced Ohio’s Castle doctrine, R.C. 2901.05(B)(2), and
maintained that he had no duty to retreat
State v. Sekic, 8th Dist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 14, quoting State
v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002 Ohio App. LEXIS 329, 8 (Jan. 22,
2002); see also State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037,
¶ 19 (“[g]enerally, a defendant, having willingly advanced toward a volatile situation
cannot rely on the affirmative defense of self-defense”), citing Sekic at ¶ 15; State v.
Gaston, 8th Dist. Cuyahoga No. 98904, 2013-Ohio-2331 (even if the defendant is
not the immediate aggressor, that person cannot provoke an assault or voluntarily
enter an encounter and then claim a right of self-defense after the victim predictably
attacks).
Further, even if D’Amore is considered the initial aggressor, there are
“‘limitations to the application of self-defense,’ and the defense ‘is not available
unless’ there is evidence demonstrating ‘that the force used to repel the danger was
not more than the situation reasonably demanded.’” State v. Zafar, 10th Dist.
Franklin No. 19AP-255, 2020-Ohio-3341, ¶ 52-53, quoting State v. Johnson, 6th
Dist. Lucas No. L-08-1325, 2009-Ohio-3500, ¶ 12. It has therefore been concluded
that “‘the force used to defend must be objectively necessary and reasonable under
the facts and circumstances of the case and in view of the danger apprehended.’” Id.,quoting Johnson and Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 93,
590 N.E.2d 411 (10th Dist.1990). Self-defense is not justified when an offender uses
“a greater degree of force than is necessary under all the circumstances.” Id., citing
Johnson and State v. McLeod, 82 Ohio App. 155, 157, 80 N.E.2d 699 (9th Dist.1948).
In this case, Martin cannot prove his actual innocence by a
preponderance of the evidence and no genuine issue of material fact exists as to
whether Martin was acting in self-defense. Reasonable minds could only conclude
that Martin voluntarily entered the encounter by proceeding to the police station
parking lot and that he exceeded the force reasonably necessary for self-defense by
using a deadly weapon. Martin is unable to show that he was not at fault in creating
the situation giving rise to the affray or that he had a bona fide belief that he was
imminent danger of death or great bodily harm and that his only means of escape
from such danger was with the use of deadly force.
Accordingly, we conclude the state is entitled to summary judgment
in its favor. Martin’s third assignment of error is overruled. We find no merit to any
other arguments raised.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION)
MARY EILEEN KILBANE, J., DISSENTING:
I respectfully dissent from the majority opinion and would reverse the
trial court’s decision granting the state’s motion for summary judgment. Because I
believe a genuine issue of material fact exists as to whether Martin was acting in self-
defense, I would reverse and remand the case.
While Martin must establish that he has a valid self-defense claim to
establish that he was wrongfully imprisoned, this requirement does not negate the
burdens under Civ.R. 56. This appeal is concerned with whether the state is entitled
to summary judgment as a matter of law. Under Civ.R. 56, summary judgment is
appropriate when no genuine issue exists as to any material fact and, viewing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
reach one conclusion that is adverse to the nonmoving party, entitling the moving
party to judgment as a matter of law. On a motion for summary judgment, the
moving party carries an initial burden of identifying specific facts in the record that
demonstrate their entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996).
Construing the evidence most strongly in favor of Martin, I believe a
genuine issue of material fact exists as to whether Martin was acting in self-defense.
With respect to the first requirement of a self-defense claim, the state argues that
Martin created the confrontation when, without attempting to call 911 or seek
assistance from police, he drove to the scene of the exchange and brandished a
weapon. Martin argues, however, that D’Amore created the situation giving rise to
the affray by charging Martin’s vehicle, threatening him to a fight, and reaching into
his car and attempting to swat his gun away. With respect to the second requirement
of a self-defense claim, the state argues that Martin could not have had a bona fide
belief that he was in danger because D’Amore was unarmed and Martin was in a
large truck. Martin’s position, however, is that he did not know D’Amore was
unarmed, he knew that D’Amore had a history of violence and aggression, D’Amore
was charging Martin’s vehicle aggressively, and Martin was unable to exit the
situation. Finally, with respect to the third requirement of a self-defense claim, the
parties do not dispute that Martin did not violate any duty to retreat or avoid the
danger.
Having reviewed the evidence in this case, I would not find that the
state satisfied its Civ.R. 56 burden. Because I believe that a genuine issue of material
fact exists as to whether Martin was acting in self-defense, I would reverse the trial
court’s decision granting the state’s motion for summary judgment and remand the
case.
For these reasons, I respectfully dissent.