Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Philip
R. Cummings, Assistant Prosecuting Attorney, for
J. Clark, for Defendant-Appellant.
Garrison Hilliard admitted to shooting his niece's
boyfriend in the face with a flare gun modified to shoot .410
shotgun shells. Hilliard and members of his extended family
shared a large property with two houses. Hilliard lived in
the main house with his mother and his niece Samantha's
children. Samantha lived in the second house-which the
parties call the "pink house"-with her brother and
her boyfriend, Andrew Davis, the victim. After a jury trial,
Hilliard was found guilty of one count of felonious assault
under R.C. 2903.11(A)(2) with two firearm specifications and
an additional count of felonious assault under R.C.
2903.11(A)(1). He was also convicted of unlawful possession
of dangerous ordnance with one firearm specification, which
is not the subject of this appeal. The trial court sentenced
him to an aggregate term of five years.
In his first assignment of error, Hilliard argues that his
convictions are against the manifest weight of the evidence
because the evidence established that he acted in
self-defense. A review of the manifest weight of the evidence
puts the appellate court in the role of a "thirteenth
juror." State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). Our duty is to review the entire
record, weigh the evidence, consider the credibility of the
witnesses, and resolve whether the trier of fact clearly lost
its way and created a manifest miscarriage of justice.
Self-defense is an affirmative defense that legally excuses
admitted criminal conduct. State v. Poole, 33 Ohio
St.2d 18, 19, 294 N.E.2d 888 (1973). The accused bears the
burden of proving by a preponderance of the evidence (1) that
he was not at fault in creating the violent situation, (2)
that he 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 force used, and (3) that he did not violate a
duty to retreat or to avoid the danger. R.C. 2901.05(A);
State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755
(1979), paragraph two of the syllabus.
Under R.C. 2901.05(B)(1), "a person is presumed to have
acted in self defense * * * when using defensive force that
is intended or likely to cause death or great bodily harm to
another if the person against whom the defensive force is
used is in the process of unlawfully and without privilege to
do so entering, or has unlawfully and without privilege to do
so entered, the residence * * * occupied by the person using
the defensive force." But that presumption does not
apply "if the person against whom the defensive force is
used has a right to be in, or is a lawful resident of, the
residence." R.C. 2901.05(B)(2)(a).
Here, the evidence relating to the elements of self-defense
and the Castle Doctrine presumption was contradictory.
Samantha testified that she was at work that night, but she
was having trouble getting her grandmother-Hilliard's
mother-on the phone to check on her children. She called
Davis and asked him to go see what was happening at the main
house and to check on their children. Davis and Samantha both
testified that Davis had a key to that house, they ate and
showered there, and their children lived there.
Hilliard testified that he was in his home with his mother
when Davis entered without permission. He stated that Davis
came into the house and called him names. Hilliard told Davis
to leave. The two began to struggle, after which Hilliard
went back to his room. When he heard his mother tell Davis to
leave, Hilliard returned and told Davis again to leave. Davis
grabbed him. At which point, Hilliard admitted that he
returned to his room, grabbed the flare gun and a .410
shotgun shell. When he walked back out to where Davis was,
Davis began shaking Hilliard, and Hilliard aimed over
Davis's shoulder and fired.
Davis tells another story. Davis testified that as he
approached the house, he heard Hilliard screaming at his
mother, calling her names, and saying "get the fuck out,
bitch." From outside, Davis saw Hilliard grab his
mother's arm with both of his hands. Davis entered the
house and told Hilliard to go outside. Davis testified that
he was trying to diffuse the situation because his children
were in the house and to protect Hilliard's mother. Davis
claims that Hilliard put his hands on Davis as if to remove
him from the house. Next, Hilliard went to his bedroom and
Davis went to the kitchen to calm down. Davis was in the
kitchen for 10 to 12 seconds, then he heard Hilliard's
mother scream, "Gary, stop! No Gary, stop!" At that
point, Hilliard shot Davis in the face.
Hilliard's mother testified that Davis came in while she
was putting one of the children to bed. She stated that she
came out and had to separate Hilliard and Davis. She told
Davis to "go on up to the pink house" and she would
take care of Hilliard. Then, when she went to her bedroom,
she heard a gunshot. She stated that when she saw Davis was
bleeding, she asked Hilliard, "What have you done?"
Hilliard responded that he told Davis to leave and he did not
go, so he shot him.
The weight to be given the evidence and the credibility of
the witnesses are primarily for the trier of fact. State
v. DeHass,10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The
jurors were free to believe or disbelieve any of the witness
testimony, and they were entitled to believe that Hilliard
did not act in self-defense. Here, a jury could have believed
Davis's version of events and convicted Hilliard
accordingly. Hilliard admitted to shooting Davis after
returning to his bedroom to retrieve and load the weapon.
There was evidence that Davis was privileged to be in the
main house and that Hilliard was not authorized to exclude
Davis. Accordingly, the jury could reasonably have concluded
that Davis did not prove self-defense and the Castle Doctrine
was inapplicable. After a review of the record, we cannot ...