2019 Ohio 148
Ohio Ct. App.2019Background
- Defendant Terrence Kilbane charged with one count of domestic violence; prosecution alleged a prior domestic-violence conviction upgrading the charge. Bench trial resulted in conviction and sentence (six months inactive probation, $500 fine).
- Dispute arose between Terrence and his brother John over masonry tools John had placed on his (John’s) front lawn after removing them from the garage next door.
- John testified Terrence emerged from their mother’s house and attacked him twice; John called police after first attack.
- Third-party witnesses (off-duty Officer Krug and Officer Ventura) observed or smelled intoxication and saw Terrence physically assault John; Ventura arrested Terrence as likely first aggressor.
- Terrence testified John swung a two-by-four at him and that he acted in self-defense; he did not report the two-by-four to police or give a written statement. Parties stipulated to defendant’s prior domestic-violence conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kilbane) | Held |
|---|---|---|---|
| Whether court applied correct self-defense standard | Court applied proper three-element nondeadly force test; no duty to retreat was imposed | Trial court erroneously imposed a duty to retreat, violating due process | Court held no duty to retreat was imposed and trial court applied correct standard |
| Whether conviction was against manifest weight | Evidence (victim testimony and officers) supports conviction; defendant was first aggressor | Defendant acted in self-defense; John initiated the attack with a two-by-four | Court found weight of the evidence supports conviction; not an exceptional case requiring reversal |
| Whether trial counsel was ineffective | Counsel’s performance was reasonable; no prejudice shown | Counsel argued wrong self-defense test and failed to object to prosecution’s assertions | Court held counsel was not ineffective; no deficient performance or prejudice shown |
| Whether defendant met burden to prove self-defense (nondeadly force) | Burden on defendant to prove all three elements by preponderance; defendant failed to show he was not at fault | Defendant claimed he reasonably feared imminent harm and could only protect himself by force | Court held defendant failed to prove elements (court credited victim and officers), so self-defense not established |
Key Cases Cited
- State v. Palmer, 80 Ohio St.3d 543 (1997) (defendant bears burden to establish affirmative defense of self-defense)
- State v. Jackson, 22 Ohio St.3d 281 (1986) (failure to prove any element of self-defense defeats the defense)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for manifest-weight review)
- DeHass v. State, 10 Ohio St.2d 230 (1967) (credibility determinations are for the trier of fact)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Cleveland v. Welms, 169 Ohio App.3d 600 (2006) (elements for self-defense involving nondeadly force)