I ran into Ed Vargas, a local Cleveland attorney, a couple weeks after he’d won a big case involving the castle doctrine.  I’d talked about the doctrine here; basically, through an amendment to RC 2901.05(B), it creates a presumption that if you use deadly force inside your own home against an intruder, it’s self-defense.  I told Ed I’d take him out to lunch to pump him for his insights on the subject, but then I ran into him the other morning at a pretrial and got the info for free.  So I guess that’s one hot-dog vendor that’s out $3.50, or maybe more if I was in a mood to pony up an extra buck for chips.

Ed’s case features the typical Jerry Springer cast:  Boyfriend, Girlfriend, and Ex-Boyfriend.  The latter had been stalking Girlfriend for months, and had developed a nasty habit of showing up at her house at 4 in the morning and pounding on the door.  On this occasion, he kicked it in; Boyfriend had a gun, told Ex to back off, Ex kept coming, so BF shot Ex in the abdomen.  At that point, BF made a bad move:  he ran out the side door and down the street.  That’s probably the only reason he got charged.  Well, that and having a few priors.

Ed told me that the castle doctrine was key to the defense, and it’s not hard to see why.  Under the normal law of self-defense, you have the burden of showing three things.  First, that you weren’t the aggressor; no problem with that here.  Second, that you didn’t violate any duty to retreat.  Again, no problem; in Ohio, you don’t have a duty to retreat in your own home.   And third, that you were in fear of death or great bodily harm.

Ooops.

That would have been a major problem before the enactment of 2901.05(B), since there was no indication that Ex had a weapon.  But the statute largely eliminates that problem:  you’re presumed to have acted in self-defense, and the State has the burden of overcoming that presumption.  Essentially, it has to prove that you weren’t in fear of death or great bodily harm.  It’s certainly not impossible for the State to make that showing, but given the  general reluctance of juries to hold defendants responsible for shooting people who break into their homes, it’s going to be an uphill battle.  Ed told me that, after a 6-day trial, the jury was 11-1 for acquittal after an hour, then spent the next four hours convincing the lone holdout. 

Oddly enough, the Ohio Judicial Conference hasn’t come up with any jury instructions on the castle doctrine, but Ed says he got some from other jurisdictions, so if you’ve got a case like this, you might want to give him a call.  He’s in the book.  If he doesn’t answer right away, it’s probably because he’s busy hiring a bunch of new associates to handle the overflow of cases that’ll come his way once people read this blog post.

One other question that’s bound to pop up is the retroactivity of the instruction:  what happens if the crime occurred before the law was passed (its effective date is September 9, 2008), but the trial takes place afterward?  Ed thought there might have been a case on this, but my BFF Lexis tells me that there hasn’t.  (There are a number of hits that you get if you use “castle doctrine,” but keep in mind that phrase actually applies to two situations:  the one covered by the new law, and the “old,” and still extant, rule that one has no duty to retreat in one’s home.)

Can the new statute be applied retroactively?  RC 2901.05(B) doesn’t really create any new right, it simply changes the evidentiary standard with regard to self-defense in a certain situation.  Other cases have found no problems with applying such changes retroactively.  In State v. Webb, for example, the defendant was charged with capital murder, and the case against him was largely circumstantial.  At the time he committed the crime, Ohio law required circumstantial evidence had to be irreconcilable with any reasonable theory of innocence, but that rule was judicially abolished before Webb’s trial.  The court rejected his claim that he was still entitled to the benefit of the rule, finding that “new evidentiary rules may be applied retroactively.” 

An even better, and more applicable, case is State v. Wilson.  Wilson was charged with a firearm specification, and between the time of crime and his trial the law was changed to require the state to prove that the firearm was operable.  In Wilson, the 6th District upheld the trial court’s grant of post-conviction relief on the grounds that the change should have been applied retroactively.

Now, here’s the real interesting catch about the statute.  You’ll remember that Ex was intruding into Girlfriend’s home.  Was it also Boyfriend’s home?  No; he’d just stay there occasionally.  But you don’t have to be the owner, or even the resident, of the premises or car:  the statute says that it applies to defensive force used against someone who’s unlawfully entered “the residence or vehicle occupied by the person using defensive force.”  Theoretically, if the guy from Dominion Gas is down in your basement reading your meter, he has the same right to plug anyone coming into the home as you do.

Is this a great country or what?