It is generally understood that a person acting in “self-defense” is not criminally liable for injuring – or even killing – their assailant. Unfortunately, the legal requirements for establishing “self-defense” and the specific instructions to be given to the jury are not always clear. This is particularly true in instances where the assailant and the party claiming “self-defense” have an equal right to be in the subject property, such as spouses, roommates or domestic partners. In those circumstances, the specific manner in which the jury is instructed regarding “self-defense” is a critical and oft en outcome-determinative factor in deciding whether the defendant is guilty or innocent of the charged offense(s).
What are the elements of “self-defense?”
In Ohio, a criminal defendant who intends to assert “self-defense” must establish, by a preponderance of the evidence, three distinct elements, to wit: (1) they were not at fault in creating the violent situation; (2) they had a bonafide belief that they were in imminent danger of death or great bodily harm and that their only means of escape was the use of deadly force; and (3) they did not violate any duty to retreat or avoid the danger. See State v. Thomas, 77 Ohio St.3d 323 (1997).
What is the Castle Doctrine?
As set forth in the foregoing elements, a person may not use deadly force if they are reasonably able to retreat from or otherwise avoid the confrontation. This requirement derives from the common law rule that the right to use deadly force may only be exercised if the individual first attempted to “retreat to the wall” whenever possible. However, the Ohio Legislature has enacted the Castle Doctrine, which creates an exception to the common law duty to retreat in some circumstances. Th e Castle Doctrine, which is codified in R.C. §2901.09, underscores the principle that an individual’s home is their castle and they should not be required to retreat before protecting themselves and other lawful occupants of the home from intrusion or attack (Th e statute has also extended the protections afforded by the Castle Doctrine to an individual’s vehicle). To that end, the Castle Doctrine recognizes that when a person is inside their residence, they have already retreated “to the wall” and there is no place to which they can further flee in safety.
Although most people believe that the Castle Doctrine merely eliminates the duty to retreat before using deadly force, it also creates a rebuttable presumption that a defendant acted in self-defense when using defensive force that is intended or likely to cause death or great bodily harm while inside their residence or vehicle if the person against whom the defensive force is used is in the process of unlawfully entering, or has unlawfully entered, the residence or vehicle occupied by the “victim.” See R.C. § 2901.09(B)(1); see also State v. Stephens, 2016-Ohio-384 (Ohio App. 8th Dist. 2016). Because the presumption is “rebuttable,” a defendant is not assured an acquittal simply because they were inside their residence or vehicle at the time that deadly force was used. Rather, the state can rebut this presumption by presenting evidence that the defendant was at fault in creating the situation or that they lacked any reasonable fear of danger that precipitated the use of deadly force.
Does the Castle Doctrine apply when both parties have a lawful right to enter or occupy the residence?
The specific language of the Castle Doctrine requires that the person against whom the defensive force is used be in the process of unlawfully entering, or have actually unlawfully entered, the residence or vehicle occupied by the defendant. Th us, a plain reading of the statute appears to suggest that the Castle Doctrine is inapplicable in situations where both parties have an equal right to access and/or reside within the property, such as with spouses, roommates or domestic partners. However, courts have attempted to resolve this ambiguity by reasoning that a person’s right to be present in a residence terminates once an individual commits a crime against the homeowner. See e.g. Stephens, 2016-Ohio-384. Accordingly, a defendant who utilizes deadly force in response to (or aft er) their co-habitant’s criminal conduct is still entitled to the presumption established by the Castle Doctrine.
Because of the negative connotations associated with the word ‘escape,’ courts should consider modifying the language contained within the second element of the self-defense instruction where the Castle Doctrine applies.
How does the Castle Doctrine affect the jury instructions?
Assuming that the individual had no lawful right to enter or occupy the defendant’s residence or vehicle, or that their right to do so was nullified by their commission of a criminal offense, the defendant should be entitled to the protections of the Castle Doctrine. In addition to creating a rebuttable presumption that the defendant acted in self-defense, the Castle Doctrine should negate any requirement that a defendant attempt to retreat from their residence or vehicle prior to using deadly force. However, merely removing this element from the jury instruction does not necessarily ensure that the defendant will receive the protections that the Castle Doctrine is designed to safeguard. For instance, the Fift h District Court of Appeals found that where a “self-defense” instruction under the Castle Doctrine is appropriate, it is a reversible error to instruct the jury that the defendant establish that their only means of escape from the dangerous situation was to use deadly force. State v. Huff, 2007-Ohio-3360 (Ohio App. 5th Dist. 2007). Th e court reasoned that the use of the word “escape” implied that the defendant’s duty or ability to leave the residence – prior to using deadly force – was an appropriate or relevant consideration for the jury.
Because of the negative connotations associated with the word “escape,” courts should consider modifying the language contained within the second element of the self-defense instruction where the Castle Doctrine applies. For example, trial courts could instruct the jury that the defendant must establish “reasonable grounds to believe, and an honest belief, that they were in imminent fear of death or great bodily harm, and that their only means of ending such danger was by use of deadly force.”
Irrespective of the ambiguity contained in the statutory language, it is clear that the protections afforded by the Castle Doctrine are available to defendants who use deadly force against a co-habitant of their vehicle or residence, which can ultimately be the difference between securing an acquittal and suffering a conviction. Eric Long