Ohio’s 1st. District Court of Appeals in Cincinnati (Hamilton County) last Wednesday upheld the judgment & conviction of one Charles Carmen to a total sentence of 14 years in prison to be served consecutively, rejecting claims of self-defense in an attempted murder case. [State v. Carmen, C-120692 on 7/31/2013, 2013-Ohio-3325 ]
The case evolved from an incident involving Carmen owing another man money and the second man’s being unable to “catch up” with Carmen until the time of the incident. The second man had confronted Carmen, asking him for the money, but beginning to curse and threatening to “kick Carmen’s ass,” when Carmen refused to pay, at which point Carmen pulled a gun from his coat and told the man that he was “going to die today,” and shot him at close range multiple times in the face and body. The man fell to the ground after the first or second shot, but Carmen continued shooting before running off.
Carmen told police the man had confronted him two times and that he had tried to walk away, but the man had continued to pursue him, that the other man often carried a gun, and had kept his hands in his pockets during their altercation, claiming he had shot the other man with a semi-automatic pistol because he was afraid the second man was going to shoot him. Witnesses testified that the second man had, in fact, initiated the incident by running across the street to confront Carmen, and had yelled and threatened to harm Carmen, but had never actually raised his hand to strike Carmen or pull a weapon. They further said Carmen had stepped forward, pulled his own gun from his pocket, and shot the second man multiple times, making no attempt to walk away before or during firing.
“Under Ohio law,” the 1st. District explained, “self-defense is an affirmative defense that legally excuses admitted criminal conduct.” State v. Edwards, 1st Dist. Hamilton No. C-110773, 2013-Ohio-239, ¶ 5, citing State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973)
“To establish self-defense, Carmen had to prove by a preponderance of the evidence (1) that he was not at fault in creating the situation giving rise to the affray, (2) 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 in the use of such force, and (3) that he did not violate any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755 (1979); see R.C. 2901.05(A). The elements of the defense are cumulative. Thus, Carmen’s failure to prove any one of the three elements by a preponderance of the evidence would negate the defense. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 73; see Edwards at ¶ 9.
“…The trial court concluded that Carmen had failed to prove the second element of the defense―that he had acted upon a bona fide belief that he was in imminent danger of death or great bodily harm―and that Carmen had used excessive force in pulling out a gun to shoot Sanders, who had been unarmed and incapable of inflicting death or great bodily harm upon Carmen. See In re Maupin, 1st Dist. Hamilton No. C-980094, 1998 Ohio App. LEXIS 5907, *5-6 (Dec. 11, 1998). Based upon our review of the record, we cannot say that the trial court lost its way in concluding that Carmen had failed to carry his burden to establish that he had acted in self-defense. Edwards at ¶ 10. The trial evidence established that Sanders had approached Carmen, cussing at him and threatening to“kick his ass,” but that he had never actually raised his hand to hit Carmen. Carmen then responded by shooting the man multiple times in the face and body”