This week’s Cases of the Week, for the week ending March 13, 2020, includes the five most important and interesting appellate court decisions (case law) on use-of-force cases in the last week out of the following states:
Georgia (x2), Minnesota, Ohio, and Texas
If your state wasn’t in that list, don’t lose interest, you can likely learn a lot from those cases even if your state is not listed, because the general principles of self-defense law are about 80% the same across the 50 states (naturally, the 20% difference matters, too).
At the text version of this content over at the Law of Self Defense website (lawofselfdefense.com) for each of these cases we provide a hyperlink to read the full-text of the court decision, which I urge you to do! Reading these kinds of appellate court decisions is how lawyers themselves learn how use-of-force law is likely to be applied to their real-world clients in real-world use-of-force cases. It’s also how the law is likely to be applied to you!
Issues covered in this week’s Cases of the Week include:
- Self-defense immunity, and how it applies in the context of an accidental shooting
- The sharp distinction between the legal defenses of self-defense and accident
- The legal consequences of NOT providing aid to the attacker you’ve shot
- Importance of keeping each of the elements of self-defense distinct, and not conflating multiple elements into a single characteristic
- Being aware of the “time dilation” effect of appellate court decisions and the statutory law they apply.
- Be alert that most lawyers and judges—even panels of appellate court judges—often don’t know self-defense law all that well
- How any item can be a deadly weapon, depending on the manner of its use
- Importance of focusing on and understanding the actual underlying legal doctrine that’s relevant, and not over relying on the label someone may assign to that legal doctrine
We’ll be breaking down, or “briefing,” each of these cases in five major segments, to make them easier to digest and understand:
Facts: What happened in the use-of-force event.
Law: What use-of-force laws were applied at trial, what legal arguments were presented by the state and the defense, and what were the verdict and sentence at trial.
Analysis: The basis on which the defendant appealed his conviction, and the appellate court’s analysis of the claimed error.
Outcome: The appellate court’s conclusion.
Notes/Comments: Additional thoughts I have on the case.
This new format is a bit of an experiment, so I encourage all of you to provide feedback and let me know how you like it. Better, more value, prefer it this way, on the one hand, or simply too long, too detailed, too time-consuming, on the other. Let us know! Thanks!
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I’d also like to mention our sponsor, CCW Safe, a provider of legal membership services (what many mistakenly refer to as “self-defense insurance”). In effect, CCW Safe commits to covering your legal expenses if you’re involved in a use-of-force event, subject of course to their conditions of membership.
I’m a member of CCW Safe myself, as is my wife, and I encourage you to consider them as a means of ensuring you have the legal resources you need to win the legal fight if you’re ever involved in a use-of-force event. You can learn more about them by clicking the image or link below:
FREE! 5 Elements of Self-Defense Law Infographic
If you’re new to Law of Self Defense you’ll find us talking quite a lot about the 5 elements: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. These are the five legal building blocks of any claim of self-defense. For a prosecutor to destroy your claim of self-defense, and have a easy walk to your conviction, he merely needs to disprove any one of those five elements. The bottom line is that if you don’t know these five elements you do not–indeed, you can not–understand self-defense law.
The good news is that we offer an entire FREE! single-page “5 Elements of Self-Defense Law Infographic,” as a PDF download. It’s FREE, folks, as in it doesn’t cost a penny. I urge you to download this FREE! infographic and keep it at hand as you consume our content, so you’ll have the necessary foundational knowledge you need to really understand what we’re talking about in terms of self-defense law.
You can download that FREE! “5 Elements of Self-Defense Law Infographic” by clicking the image or link below:
Court of Appeals of Georgia, Fourth Division
March 10, 2020, Decided
The Defendant is one of a group of men who after drinking heavily get into a confrontation in the parking lot outside the bar. The Defendant ends up pulling a gun and firing shots, striking two of the other men, whom we’ll call Victim 1 and Victim 2.
The Defendant is charged and indicted on two counts of aggravated assault.
Normally we’d expect the next step to be the Defendant raising the legal defense of self-defense at trial, but this case occurs in Georgia, and Georgia is among the states that offers the option of self-defense immunity.
Self-defense immunity is best thought of as a way to accelerate a decision on self-defense so that it occurs at pre-trial self-defense immunity. This allows a determination of self-defense to potentially be made much more quickly and at much lower cost than a full-blown trial would take. I’m a huge fan of self-defense immunity laws, and indeed consider them even more important than Stand-Your-Ground.
Under Georgia law the burden is on the Defendant at the pre-trial immunity hearing to convince the judge by a preponderance of the evidence (a majority of the evidence) that the use-of-force qualifies as self-defense. If the judge agrees, the Defendant is granted immunity from criminal prosecution, and the whole criminal case goes away (unless the state appeals the granting of immunity to the court of appeals).
In this case the Defendant is successful, the trial judge grants the Defendant immunity from prosecution … and the state immediately appeals that decision to the court of appeals. Which brings us to where we are in this case.
The prosecutors are basically arguing that the immunity hearing judge committed reversible error in granting the Defendant immunity, because (the state believes) the evidence failed to prove self-defense by a preponderance of the evidence.
That’s a straightforward enough argument, but the appellate court decides to take things in a more interesting direction.
The appellate court rules that the immunity hearing judge did a perfectly fine job in reviewing the evidence in the case and deciding that the Defendant was entitled to self-defense immunity—but only with respect to the man who was shot intentionally in purported self-defense, Victim 1.
With respect to Victim 2, the man who was shot accidentally, however, the immunity statute applies only to self-defense, not to accident. At trial the Defendant is free to argue the legal defense of accident with respect to Victim 2—and accident is a perfectly legitimate legal defense, just as much so as the legal defense of self-defense—but a defense of accident does not fall within the scope of self-defense immunity.
In other words, self-defense immunity provides an accelerated way to seek a pre-trial decision on the legal defense of self-defense (Victim 1), but it does not provide an accelerated way to seek a pre-trial decision on the legal defense of accident (Victim 2). Accident (the legal defense to the aggravated assault charge based on the injury to Victim 2) needs to be argued at trial.
So the aggravated assault charge based on the intentional shooting of Victim 1 in self-defense is dismissed on the basis of immunity, but the aggravated assault charge based on the purportedly accidental shooting of Victim 2 is remanded back to the trial court, where the Defendant can raise the legal defense of accident.
The nice aspect of this decision, despite the gratifyingly clear thinking and explanation by the court of appeals, is the clear distinction it draws between self-defense on the one hand and accident on the other. These are not just two distinct, but two contradictory legal defenses, and as such they ought to be treated quite differently.
An act of self-defense is a deliberate act. You perceived a threat, and you intentionally used force to neutralize that threat.
An accident is the opposite of a deliberate act. It’s something that you did not intend to have happen.
Accordingly, a particular use of force may be self-defense, or it may be accident, and either legal defense if successfully argued is a perfect defense that leads to an acquittal. But no particular use of force may be both self-defense and accident.
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Our CONSULT Program is very popular, folks, because our legal consultations work. We naturally can’t guarantee a specific legal outcome in any particular case, but I can tell you we have a close to 100% record in either getting charges dismissed or having clients put into a diversion program where charges are dismissed if they keep their noses clean for some period of time.
In fact, just a few weeks ago one of our consult clients had murder charges dismissed on the eve of trial. This client had been prosecuted for three years and was going to trial the next month for murder and facing life in prison. Fortunately, for this client, two weeks after we consulted on the case all charges were dismissed. I’ll call that a win.
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The CONSULT Program has no such conditions or exclusions. If you’re a current CONSULT member, you get our consultation, period, regardless of the circumstances of the use-of-force event. You had a few beers at a backyard BBQ when you were attacked? CONSULT still covers you. You had to defend yourself against the abusive spouse you’re in the process of divorcing? CONSULT still covers you. You had to defend yourself while carrying concealed in a location the authorities say you shouldn’t have been carrying concealed? CONSULT still covers you. Period. No questions asked.
2. The CONSULT Program covers your trial, your appeals, your re-trials–the entire criminal justice process from beginning to end–with no limitation. Many traditional “self-defense insurance” programs will cover your trial expenses up to some limit, but your appeal or re-trial expenses only if there’s money left under the limit. But what if there’s no money left? And I can assure you, if it was murder or manslaughter trial, there won’t be any money left. Well, then you’re just out of luck.
The CONSULT Program coverage extends for the lifetime of your journey through the criminal justice pipeline. Naturally, you get our consultation in preparation for your trial. But what happens if you appeal your conviction? CONSULT still covers you. What happens if your appeal is successful and you get a second trial? CONSULT still covers you. A third trial? CONSULT still covers you. Period. No questions asked.
3. The CONSULT Program GUARANTEES my immediate availability to consult on your case. As might be apparent, we’re a pretty busy legal practice, with lots of spinning plates in motion at any one time. Because of these extensive already existing commitments and obligations it’s more common than not that I have to turn away requests for a legal consultation on a case because I simply don’t have the time available, and I can’t afford to stop everything else I’ve already committed to in order to help one client.
Unless, that is, that person is a member of the CONSULT Program. In that case, we absolutely drop everything else we’re doing immediately, and shift all resources to that member’s case. Was I scheduled to teach a Continuing Legal Education class to defense lawyers, prosecutors, and judges? Cancelled. Was I scheduled to speak again at the FBI Academy in Quantico? Cancelled. Was I scheduled to be at NRA or SHOT or, for that matter, on a family vacation? Cancelled. CONSULT still covers you. Period. No questions asked.
Finally, there’s a fourth benefit, although frankly it’s among the least important, and that is that CONSULT Members get my immediately legal consultation, without limit, and without exclusions, at a fraction of the normal cost of many thousands of dollars. That’s a pretty substantial cost savings.
To be perfectly clear, there’s also a major difference between the CONSULT Program and the traditional “self-defense insurance” programs–those other programs purport to cover your self-defense legal expenses generally, whereas the CONSULT Program covers the cost of my legal consultation only. So, both of these types of programs would be best viewed as complementary to each other rather than as alternatives to each other. Indeed, I can tell you that there are founders of major “self-defense insurance” companies that are also members of the Law of Self Defense CONSULT Program, because even though they are covered by their own “self-defense insurance” they still see the additional value that the CONSULT Program brings to the table.
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Supreme Court of Georgia
March 13, 2020, Decided
This case involves a registered nurse, the Defendant, who shoots a woman , the Victim, in the face in purported self-defense, and then fails to provide first-aid to the dying Victim while standing over the bleeding and moaning body and talking with 911. This failure to aid the victim is noted by both the trial court, by the intermediate court of appeals, and even by the Georgia Supreme Court which handed down this decision just days ago.
The facts of this case are extremely hostile to the Defendant’s claim of self-defense, to the point that it would be fair to characterize that claim of self-defense as ridiculous son its face.
The Victim and her fiancé had submitted an application to rent a home from the Defendant, but then changed their minds and sought to retrieve their application, which included personal information. The Defendant was unreceptive to returning the application, and told the Victim that she would call the police if the Victim came to her home to retrieve the application. Indeed, the Defendant called 911 to report a “threat” from the prospective renters, but was unable to articulate any actual specific threat.
The Victim arrived at the rental home, where the Defendant was showing the property, to demand the return of the application. At the time she had her fiancé on her cell phone with the line open so that the fiancé could overhear the interaction between the Victim and Defendant. Over this line the fiancé could hear the Victim ultimately demand the return of the application “right now.”
At that point the Defendant drew a .38-caliber revolver and shot the Victim in the head, fatally wounding her. The Defendant then immediately called 911 as she was standing over the dying body of the Victim.
Here the facts go very poorly for the Defendant’s claim of self-defense. To quote from the GA Supreme Court decision:
“[The Defendant] admitted [to 911] that she had shot [the Victim], but when the dispatcher asked what had happened, [the Defendant] evaded the question. And even though [the Victim] was lying on her back with a single gunshot wound to the head that was bleeding profusely, [the Defendant] told the dispatcher that she thought the shot was to [the Victim’s] chest, and she claimed that she ‘tried to shoot [the Victim] in the leg.”  When police officers arrived, [the Defendant] reported that [the Victim]—who was unarmed—had tried to attack her, but [the Defendant] had not sustained any injuries.”
It is in this recounting of the facts by the Georgia Supreme Court that we come across a notable footnote, number 3, which reads:
3. [The Defendant] also initially told the dispatcher that she did not know if she knew the victim, and—despite being a registered nurse—[the Defendant] resisted efforts suggested by the dispatcher to provide first aid to [the Victim] (who can be heard moaning on the 911 recording).
The Defendant was tried for murder, and other charges, and raised the legal defense of self-defense.
The jury ultimately convicted her of murder, aggravated assault, and gun charges (the aggravated assault conviction would later be appropriately rolled into the murder conviction, as both crimes arose from a single criminal act).
The Defendant appeals her conviction on a variety of grounds, none of which are all that interesting for our purposes.
Indeed, none of the grounds for appeal (other than the consolidation of the aggravated assault into the murder conviction) were found all that compelling by the GA Supreme Court, and they affirmed the Defendant’s conviction for murder and gun crimes.
The interesting part of this case for our purposes is not so much the core issues on appeal, but rather than passing footnote, number 3, in which the GA Supreme Court notes that the Defendant, a registered nurse, had resisted suggestions from 911 to provide aid to the Victim.
This touches on a legal questiona that come up with some frequency at Law of Self Defense.: Can my failure to provide aid to the person I shot be used against me in court?
Anytime anyone asks me if “X” can be used against them in court, I don’t really care what “X” might be, the answer is “yes!”—if by “used against me in court” we mean can the prosecution talk about it in front of the jury in an effort to influence the jury towards a conviction, and whether the appellate courts can take note of it in evaluating the merits of an appeal.
Prosecutors are free to talk about most anything in front of the jury in an effort to sway that jury towards a conviction. Sure, you might get the trial judge to exclude from court some things the prosecutors might like to talk about, in which case they’re prohibited from bringing it up—but that decision is almost entirely at the discretion of the trial judge, and you have no way to know which way they’ll decide until the make the decision. So, looking at things ahead of time, the only safe assumption is that the prosecution will be free to talk about what they want to talk about in front of the jury.
The really important issue, then, is not whether the prosecution can use “X” against in you in court, but rather how damaging is “X” going to be to my narrative of self-defense?
In many cases the damage that “X can cause is in fact a function of how robust, or vulnerable, your claim of self-defense is entirely separately from the issue of “X.” That is, a robust claim of self-defense is often largely immune to damage from “X” if “X” is some ancillary issue that doesn’t go directly to one of the five elements of self-defense.
On the other hand, if the claim of self-defense is already pretty shaky and appears vulnerable to disprove, if the jury appears already pretty close to rejecting that legal defense of self-defense, then that ancillary factor of “X” might be enough to push them over the edge to conviction, even though “X” doesn’t go directly to one of the five elements of the defense.
Strictly speaking, there is no generalized duty under US law to provide aid to a third party. There are, however, a couple of major exceptions to this general rule. A duty to provide aid can exist if the aid is requested by someone in a special position of authority—for example, if a police officer requests aid of a bystander. Also, a duty to provide aid can exist if the circumstances that led to the need for aide were created by the person who is expected to provide that aid—in other words, you might be expected to provide aid if it was you who caused the injury.
Of course, in a self-defense situation that’s precisely what you’ve done—if that person is bleeding out because you’ve shot them in purported self-defense, then you’ve caused that injury and the need for aid. Does that mean you have a legal duty to provide aid?
The truth is that such cases have rarely been ruled on in the courts, and the statutory provisions are sufficiently ambiguous that we just don’t really have a definitive answer—which just means that a prosecutor and defense lawyer are going to be free to argue about it in court, and see what each side can sell to the jury.
If you’re driving recklessly and negligently injure someone and fail to provide aid, that’s a compelling argument for you having violated a legal duty to provide aid.
But a self-defense situation is distinguishable from that scenario, because in a self-defense situation arguably it’s the attacker who created the necessity for the injury—the defender was merely reacting, lawfully, to circumstances of the attacker’s own making.
Also, if you’ve shot someone in lawful self-defense, it necessarily follows that the person you shot was just moments before presenting themselves to you as an imminent threat of death or serious bodily injury. Not even professional EMS personnel will close with and provide aid to such a dangerous person until armed police have secured the scene.
This case, however, looks a lot less like genuine self-defense and a lot more like injury caused by recklessness and negligence. Thus, the argument that the Defendant in this case ought to have provided aid to the Victim is much more compelling than in a more genuine case of self-defense (for example, if the Victim had threatened the Defendant with deadly force, which does not appear to have occurred in this case).
So, if the question is, “Can my failure to provide aid to someone I’ve shot in self-defense be used against me in court,” the simple answer is “yes.” The better informed answer, however, requires an understanding of how damaging such an attack is likely to be, and that in turn is a function of the credibility of and circumstances surrounding the claimed act of self-defense.
Finally, if you’re wondering how we know that this issue of the registered nurse not providing aid played at least some role in these legal proceedings beginning all the way at trial itself as well as at the mid-level appellate court, the answer is found in the simple fact that we see the matter footnoted by this GA Supreme Court decision.
Generally speaking, a state supreme court decision knows only the facts that were discussed at the lower-level appellate courts immediately preceding when the case was argued there, so if a fact is mentioned by the supreme court it was necessarily mentioned by the appellate court. Similarly, the appellate court knows only the facts that were discussed at the trial level just preceding, so if a fact is mentioned by the mid-level appellate court it was necessarily mentioned at trial.
Lots of stuff happens at the trial level that never makes its way into the appellate records (which is why folks screaming “show me case law where X happened” expose their ignorance of how the law works), but generally speaking if a factual issue finds its way into the appellate records you can be sure it first came up at trial.
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For those of you clicking over to the text version of this content so that you can access the full-text versions of these cases—which I strongly encourage you to do, the reading such appellate court decisions is how lawyers themselves learn how the law is likely to be applied to real clients in real use-of-force cases—you’ll find that you need to be a Law of Self Defense Member to access that post.
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Court of Appeals of Minnesota
March 9, 2020, Filed
Police responded to a domestic disturbance call and the Defendant’s residence, and found the Victim (a female) badly injured. She told police that her boyfriend, the Defendant, had beaten her with a baseball bat.
The Victim’s injuries included a fractured jaw, two broken bones in her hand, a broken nose, four broken teeth, and several lacerations on face and around her mouth.
The Defendant was charged with second-degree assault with a dangerous weapon, and he claimed self-defense.
Contrary to the Victim’s narrative, the Defendant claimed that it was the Victim who approached him with the bat, that the Defendant managed to wrest the bat away from the Victim, and he then tried to escape from the apartment. The Defendant concedes that he may have accidentally struck the victim in the face with the bat twice during this struggle.
The trial court instructed the jury on the legal defense of self-defense. Two parts of this instruction were particular relevant.
The first relevant part of the jury instruction was that the Defendant was privileged to use “reasonable force” to defend himself against an assault by the Victim. For our purposes we can think of “reasonable force” as meaning “proportional force.” This is a correct statement of MN self-defense law specifically, and indeed of self-defense law generally.
The second relevant part of the jury instruction was that the Defendant had a legal duty to avoid the danger if reasonably possible, without resorting to self-defense. This is a correct statement of MN’s generalized legal duty to retreat. However, this duty to reatreat is not applicable to this case, because these events took place in the Defendant’s residence. Because the events took place in the Defendant’s “castle,” Castle Doctrine relieves him of an otherwise existing duty to retreat before defending himself. Accordingly, this was an incorrect statement of MN self-defense law.
The Defendant was found guilty by the jury of second-degree assault with a deadly weapon, and he appeals his conviction.
The appellate court quickly notes the “Castle Doctrine” error in the self-defense jury instruction at trial. But just because an error occurs at trial doesn’t mean that the guilty verdict is reversed. In order for an error to be a reversible error it has to meet three conditions.
First, the error has to actually have occurred. That’s undisputed in this case, so this condition is satisfied.
Second, the error has to be plain, or obvious, unless it was objected to at trial. This error was not objected to at trial, but the appellate court chose to recognize the error as plain, so this condition is also satisfied.
Third, the error has to have “affected appellant’s substantial rights.” That’s a fancy way of saying the error has to have mattered—in other words, that the verdict might have been an acquittal but for the error. If the verdict would have been no different even had the error not occurred, the error will not reverse the verdict.
It’s on this third condition—that the error had to have made a difference in the outcome—that the Defendant runs into trouble, and he does so precisely because of the fact that the elements of a self-defense claim are cumulative.
That is, the several elements that make up a self-defense claim are each required elements. In order for a prosecutor to destroy a claim of self-defense, he doesn’t have to destroy that claim in its entirety, he doesn’t have to destroy every element of that claim. He merely needs to destroy any one element. If he does that, the legal defense of self-defense collapses.
In a jury trial, as here, we never really know which element the jury considered disproven, and therefore which the jury thought was the key to rejecting self-defense.
For this reason, this Defendant argues that for all we know the jury rejected his claim of self-defense because of the incorrect “Castle Doctrine” instruction, in other words on the element of Avoidance—that is, the jury may have believed he had a legal duty to retreat, when in fact he didn’t have such a duty in his own home.
The appellate court concedes this point, but notes that it doesn’t matter. Why not? Because Avoidance was not the only defect in the Defendant’s claim of self-defense. He also failed self-defense on the element of Proportionality, the degree of force he used in the confrontation.
Recalling the extent of the Victim’s serious injuries, which certainly qualify as serious bodily injury and therefore fall into the deadly force bucket, the court of appeals notes that no reasonable person could conclude that the Defendant’s intensity of force was reasonable under the circumstances.
Even if we believed the Defendant’s story about the Victim first approaching with the bat, once the Defendant had seized the bat the Victim no longer had the means to cause him serious bodily injury. Thus he could have had no justification to inflict serious bodily injury on the Victim.
So, it ultimately didn’t matter if the jury thought the Defendant’s claim of self-defense was defective on the element of Avoidance, or not. Any reasonable jury must recognize that the Defendant’s claim of self-defense failed the element Proportionality, and thus must fail for that reason alone.
The Defendant’s conviction is affirmed.
This case nicely illustrates the cumulative characteristic of a claim of self-defense. It doesn’t matter if almost every element of your self-defense claim is rock solid, if the prosecution can disprove any single one of the required elements beyond a reasonable doubt. If any element is disproven, the entire defense collapses.
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Court of Appeals of Ohio, Eleventh Appellate District, Ashtabula County
March 9, 2020, Decided
This case involves two long-term across-the-street neighbors with no prior history of hostility between them. On the night in question the Victim observed the Defendant mowing his lawn at 10PM in the evening. The Victim walked across the street to talk with the Defendant. As he approached, the Defendant got off his riding mower, came towards the Victim, and knocked the Victim to the ground.
The Defendant would testify at trial that he’d just worked a 15-hour day and was leaving on a trip the following morning, and that was why he was mowing his lawn that late in the evening. He said he was alarmed when he realized someone was approaching him in the darkness. He claimed he believed the person approaching had a knife in his hand. He also believed he had a right to defend his property from what he perceived as an aggressor in the darkness.
The Defendant would be charged with simple assault (what most jurisdictions would call a “simple battery.”)
Having been charged with simple assault on the Victim, the Defendant raises the legal defense of self-defense. This was a bench trial, in which the judge plays the role of both judge and finder of fact—so there is no jury.
One benefit of bench trials four our purposes is that although a jury rarely explains how they arrive at a verdict, and are probably not to be believed on the rare occasions that they do provide an explanation, bench trials often include an explanation from the trial judge about how he arrived at his verdict.
The self-defense analysis here is straightforward, simply applying the five elements of a self-defense claim: Innocence, Imminence, Proportionality, Avoidance (OH is a duty to retreat state), and Reasonableness.
The analysis is even simpler than those five elements suggest, because it really just comes down to whether the trial judge believes that the Defendant reasonably perceived an imminent physical threat, to which he responded with defensive force.
In this case the trial judge clearly didn’t believe the Defendant, because he found the Defendant guilty of charged of assault.
The Defendant appeals his conviction.
The Defendant’s basis of appeal is straightforward—that no reasonable person could have found other than self-defense based on the facts of his case. Therefore the fact that the trial judge failed to find self-defense means that the trial judge was unreasonable, and his verdict should be reversed as a result.
If that doesn’t sound like much of a winning argument, you’d be quite right.
The appellate court fails to find anything unreasonable about the trial judge’s perception of the evidence presented in court.
The court of appeals affirms the Defendant’s conviction.
So, here in the Notes/Comments section is where we can get into some interesting facets of this case.
This is case is unusual on a number of fronts. First, it involves a simple assault, rather than a deadly force aggravated assault or a manslaughter or murder charge. It’s not common for simple assault convictions to end up in the appellate courts.
Second, this case highlights a particular caution one must keep in mind in reading appellate court decisions—that appellate court decisions are applying, in those decisions, the law that existed at the time the underlying offense took place. They are not necessarily applying the law as it currently exists. That means the law your reading in an appellate decision might be law that would not be applied if the same facts were to occur today.
The offense that’s the basis for an appeal might have taken place years ago, and the current law in place when the decision is handed down might be quite different than the law as it existed years prior when the offense took place. Nevertheless, the decision will reflect that old law, the law relevant to the offense, and not current law.
In this case the Defendant claimed self-defense to justify his assault of the Victim. The appellate court notes that under Ohio law the burden is on the Defendant to prove self-defense by a preponderance of the evidence (majority of the evidence). This is the correct law as it applies to this Defendant for this offense—it is not, however, current law in Ohio.
Effective March 28, 2019 Ohio joined the other 49 states in placing the burden of proof on self-defense on the state, rather than the defendant, to disprove self-defense beyond a reasonable doubt, not prove self-defense by a preponderance of the evidence. Reading this decision, however, you’d never know that.
Until the Ohio appellate courts start hearing self-defense appeals involving events that took place on or after March 28, 2019, Ohio case law will continue to reflect the older burden of proof on self-defense rather than the current burden of proof.
Another interesting facet of this decision is that it defines Ohio self-defense law as consisting of just three elements. As you probably know, Law of Self Defense teaches that the legal defense of self-defense consists of five elements: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. So how can Ohio claim to only have three elements?
This confusion is the result of the Ohio courts combining what are actually several distinct legal elements into one category, and pretending the these multiple elements are a single element.
For example, the second of the “three elements” of self-defense cited by this appellate court reads:
(2) 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 was the use of force
An informed reading of that “single element,” however will recognize that it actually consists of several distinct elements and sub-elements.
For example, the language on “a bona fide belief” is a reference to subjective reasonableness, which is one half of the element of Reasonableness (the other half is objective reasonableness).
The mention of “imminent” is a reference to the distinct self-defense law element of Imminence, as we teach the five elements of self-defense law.
The mention of “death or great bodily harm” is a reference to the intensity of the force involved, which aligns to the element of Proportionality.
The mention of “only means of escape was the use of force” is a reference to the issue of retreat, which aligns to the element of Avoidance.
This conflation of numerous distinct elements into a single category only complicates legal analysis and fosters sloppy legal reasoning and understanding. If this OH appellate court were to argue that a Defendant lost self-defense because he violated what this court refers to as element (2) of self-defense, we’d have no way of knowing if the actual defect in the self-defense claim was a failure of Reasonableness, of Imminence, of Proportionality, of Avoidance, or some combination of these distinct elements.
And keep in mind, this decision wasn’t just written by a trial court judge, but by a panel of three appellate judges, each of whom are in theory supposed to be superior in legal knowledge and reasoning to a mere trial court judge.
Sloppy, sloppy, sloppy. So, how can this sloppiness happen?
The simple truth is that most lawyers aren’t taught self-defense law in a rigorous way, and most judges are pulled from the ranks of lawyers, so they don’t know self-defense law in a rigorous way, either. Stick to the five elements of self-defense and you’ll have the cleanest and most precise understanding of the requirements of a legal defense of self-defense.
After Action Analysis Show: LIVE Every Tuesday, 2PM ET
Before we move on to the next case in this week’s Cases of the Week, I would like to remind all of you about our weekly After Action Analysis Show, which takes place LIVE here on the Law of Self Defense Facebook page every Tuesday, at 2PM ET:
Our After Action Analysis Shows take a use-of-force event captured on video, and then do a plain-English, 5 elements of self-defense law legal analysis of whether the use of force was lawful or not lawful, why that’s so, and what other facts might change that analysis.
It’s simply one of the best ways to learn how use-of-force law applies to real people in real-world cases of self-defense and defense of others.
We conduct the After Action Analysis Shows live specifically so all of you can pose questions, ask for clarification, explore alternative scenarios, and otherwise leverage the world-class use-of-force law legal expertise we work to bring to all of you.
The After Action Analysis Show is the only Law of Self Defense content that’s on a regular live schedule, so be sure to mark it in your calendar! So, be sure to join us here tomorrow, as every Tuesday, at 2PM ET, for the next LIVE episode of the Law of Self Defense After Action Analysis Show.
Court of Appeals of Texas, Eighth District, El Paso
March 10, 2020, Decided
Interesting enough, these events took place in the parking lot outside a tactical gear supply store, one creatively enough named “Ultimate Tactical Gear Supply.” I guess the name “Tactically Tactical Tactics Supply” was already taken.
In any case, as often occurs in self-defense cases we have one version of events from the Victim and a quite different version from the Defendant.
The Victim describes having seen the Defendant casually in the supply store on previous occasions, and again on the day in question. After the Victim was done with his business sin the store, he exited and got back on his motorcycle. At that point the Defendant approached him from behind, swung a length of yellow paracord around the Victim’s neck, and began asphyxiating him. Then Victim and motorcycle fell over and the Defendant mounted the Victim, breaking the Victim’s nose before pulling the Victim to a standing position using the paracord around the Victim’s neck. This continued until the supply store manager came out, and the Defendant ran away.
The Defendant’s story is, of course, rather different. He says that the Victim had stolen the Defendant’s knife some weeks prior to these events, and that he used force against the Victim in order to, alternatively, detain the Victim and in self-defense against the Victim. The Defendant says he was merely trying to bind the Victim’s hands with the paracord, and its placement around the Victim’s neck was unintentional and due to the Victim’s own resistance.
The Defendant was charged with aggravated assault with a deadly weapon, and at trial raised the legal defense of self-defense. The jury was instructed on both the criminal charge and the legal defense—unfortunately, the instruction on the criminal charge was somewhat ambiguous, and it is this ambiguity that would ultimately give rise to this appeal.
At trial, however, the Defendant was convicted as charged of aggravated assault with a deadly weapon and sentence to 10 years in prison. He appeals his conviction on the basis of the claimed error in the jury instruction.
The cause of the ambiguity of the jury instruction in this case is the result of an underlying ambiguity in how Texas uses the term “assault” as a criminal offense.
All states distinguish between the crime of, on the one hand, merely putting someone in imminent fear of harm, and on the other hand, actually causing someone harm. The model language taught to us in law school to differentiate these two different acts is to use the term assault to refer to the putting of someone in fear of imminent harm and the term battery to refer to the actual causing of harm.
Thus, you might put someone in fear of harm, but never actually cause them harm, and be guilty of an assault but not of a battery.
Alternatively, you might sneak up behind someone and strike the, causing actual harm but never putting them in fear of an attack, and be guilty of battery but not of assault.
Many times, of course, the victim is first place in fear of harm and then is actually harmed, and we have the classic “assault & battery” charge—which, of course, is really two charges of two different crimes.
Texas law does distinguish between the putting of a victim in fear, on the one hand, and causing them actual harm, on the other—unfortunately, it uses the term “assault” to refer to both of those crimes. To the extent the two crimes are distinguished, it’s done awkwardly in referring to what other states would normally call assault as “assault by threat” and to what other states would normally call battery as “bodily injury assault.”
In this case the prosecution charged the Defendant with both forms of “assault,” meaning with both assault and battery. Unfortunately, the trial court did not do a great job in differentiating these two crimes, referring to both of them simply as “assault.”
Why does that create a problem? Because a Defendant has a Constitutional right to be found guilty only if the jury unanimously believes that every element of the crime has been proven beyond a reasonable doubt.
When there are two different crimes, however, and they are not clearly distinguished, it’s theoretically possible that in this instance half the jury believed the Defendant was guilty of assault, but not of battery, and the other half of the jury believed he was guilty of battery, but not assault. If that were the cause the Defendant is actually guilty of no crime at all, because the jury never unanimously agreed on the any single charge.
We should also note that a Defendant’s claim of self-defense doesn’t even come into play until the jury is first convinced that an underlying crime has been committed. Remember, self-defense is a legal justification that makes conduct what would otherwise have been unlawful conduct into conduct that’s simply not criminal. But if there’s no underlying crime proven, there’s no need to even reach the issue of whether the conduct was justified—it’s simply not a crime that requires justification.
Importantly, the appellate court agrees that the trial judge messed up the jury instructions on the criminal charge by failing to clearly distinguish between the two forms of “assault” (meaning, between assault and battery).
As we noted in a previous case this week, however, an error at trial by itself is not enough to reverse a conviction. The error must also be one that mattered, where the outcome would have been different but for the error.
Here the appellate court raises an interesting facet of self-defense law that many people don’t recognize, but which is obvious once you think about it. And that is that self-defense is a legal defense of “confession and avoidance.”
What we mean by that is that when you claim self-defense what you are not saying is “It wasn’t me! I didn’t do it! I have an alibi!” In fact, you’re saying the opposite of that. You’re saying, “It WAS me! I DID do it!” But you’re seeing to justify what would otherwise be unlawful conduct: “But I did it in self-defense!” So, you “confess” to the underlying conduct, but you seek to “avoid” criminal liability. Hence self-defense as a defense of “confession and avoidance.”
In considering whether it’s realistically possible the some of the jurors found the defendant guilty of mere assault and others found him guilty of actual battery, the appellate court considered the totality of the evidence, and they did so in light of self-defense as a defense of “confession and avoidance.”
The evidence consistent with battery—that actual harm was caused, and not merely a threat of harm—was considerable. There was a ligature mark around the Victim’s neck. There was blood on the Victim’s face from the blow to his nose. The store manager testified as to seeing the Defendant atop the Victim. And, of course, there’s the claim of self-defense itself, in which the Defendant effectively conceded to his use of force against the Victim, but attempted to justify that use of force.
In contrast, the evidence consistent with a mere threat of force was almost nonexistent.
Accordingly, the appellate court decides that the overwhelming probability is that the jury unanimously found the Defendant guilty of “bodily injury assault” (e.g., battery) rather than any juror finding the Defendant guilty of “assault by threat” (e.g., assault).
The Court of Appeals affirmed the Defendant’s conviction of aggravated assault with a deadly weapon and his sentence of 10 years in prison.
There are three particular interesting parts of this decision to my mind.
The first is the classification of a length of paracord as a “deadly weapon.” It reminds us that while there are tools that are explicitly designed to be deadly weapons (e.g., guns, knifes), the truth is that really any item can qualify as a deadly weapon if it is being used in a manner likely to cause death or serious bodily injury. Even a fluffy pillow with a kitten embroidered on it can be a deadly weapon, if it’s being used to smother someone. It’s all dependent on the objects manner of use.
The second is the call out to self-defense as a defense of “confession & avoidance.” Remember, folks, when you’re claiming self-defense you are effectively conceding to the underlying act. You’re not denying you used force, and then claiming self-defense—that wouldn’t make sense. One consequence of this reality is that if your claim of self-defense then fails, all that’s left is effectively a confession to the underlying criminal charge.
The third is the importance of not placing too much reliance on labels, but rather making sure you understand the underlying legal principles involved. In this case it’s easy to get confused about the criminal charge because Texas uses one term, “assault,” to refer to two distinct legal concepts, “assault” and “battery.”
In a previous of this week’s cases the Ohio appellate court fostered confusion by merging several distinct elements of self-defense into a single category.
If you’re really going to understand this stuff, you need to understand it at the foundational level of fundamental principles, so that you’re not confused or led astray by poorly assigned and defined labels. The labels don’t really matter, and indeed are harmful to understanding if poorly defined and assigned.
When properly assigned, of course, the labels facilitate understanding of the law. That’s the norm, and great when it happens, but don’t simply assume that’s the case in every instance. Be alert!
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Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program