Because I believe that the trial judge was correct in giving the self-defense instruction, and thus came closer to the mark than my colleagues, I dissent.
This case places before this court a unique factual situation that gives rise to the issue of whether a criminal defendant is entitled to a transferred-intent self-defense jury instruction. The legal doctrine of transferred intent usually serves as a sword for the prosecution, not as a shield for the defense. I would hold that it works both ways and that the evidence in this case warranted not only a jury instruction on self-defense, but also an instruction on transferred-intent self-defense underState v. Clifton.19 Thus, while I agree with the majority's disposition of Robinson's second and third assignments of error, I dissent from the majority's resolution of his first assignment.
Our duty is to determine whether the evidence is such that an instruction on transferred-intent self-defense was pertinent, legally correct, and not covered by any other instruction. If we answer any of these in the negative, we review the trial court's refusal to give the requested instruction under an abuse-of-discretion standard.20 If we determine that the requested instruction was pertinent, legally correct, and not otherwise covered, we review the trial court's refusal to provide the instruction as a question of law.21 An instruction is pertinent if it is applicable to the evidence presented in the case.22 For the refusal to give requested jury instructions to be prejudicial, the failure must impair the theory of the case of the party making the request.23
I. Self-Defense The majority concludes that because a self-defense instruction was not pertinent, Robinson was not entitled to a transferred-intent self-defense instruction. Its conclusion is premised on its assertion that the evidence failed to demonstrate two of the prongs necessary to demonstrate self-defense: (1) that Robinson was not at fault in creating the situation giving rise to the affray, and (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm.24 I believe, as did the trial court, that the evidence sufficiently demonstrates entitlement to a self-defense instruction.
A. Involvement in Criminal Activity Does Not Give Rise to an Affray
The majority holds that engagement in a potentially dangerous criminal enterprise that requires contemplation of protection constitutes the "creation of a situation giving rise to an affray." Not surprisingly, they cite no case law to support this conclusion. The new rule of law announced is simply made up today. Case law, up to today, provides that the right to use self-defense is lost when one claiming the defense is the aggressor or instigator in an altercation, not when one carries a weapon in contemplation of potential danger. It is theact of being an aggressor or escalating a confrontation that creates a situation giving rise to an affray under established case law,25 not the contemplation of a potential affray.
At first glance, there is some logic to the majority's new rule of law, especially in this one unusual case. But the law must apply in non-drug as well as in drug cases. And it must apply in non-firearm as well as in firearm cases. All too often, the stroke of the judicial pen used to create new law becomes as wide as a brush.
The practical consequence of the majority's theory is that if someone is involved in a criminal activity, that person forfeits the right of self-defense. The consequences of this brush stroke are wide indeed. Such a rule would preclude a purchaser of drugs from asserting self-defense if the seller attacked him or her, and foreclose a prostitute from asserting the defense if the case involved a brutal attack by a customer. Likewise, an investment banker who was embezzling funds could not assert a self-defense claim if attacked by an irate client; nor could a mechanic defend himself or herself if attacked by a customer while rolling back an odometer.
I am unwilling to hold that a person involved in a criminal activity in which he arms himself against potential attackers is, as a matter of law, precluded from using self-defense against an aggressor. Further, this novel theory is not supported by any precedent that I can discover.
B. One May Have a Reasonable, Albeit Mistaken, Belief in Imminent Danger
The majority next concludes that the evidence fails to demonstrate a factual basis for the belief that Robinson was in imminent danger, in part because Robinson failed to discern who was on the other side of the bedroom door. Once again, under the specific facts of this case, I believe that Robinson's failure to open the door before shooting does not, as a matter of law, defeat the reasonableness of his fear of imminent harm. Evidence demonstrated that House yelled, "They have guns," and five shots were immediately fired into the apartment while Robinson was behind the locked bedroom door. The room was in chaos. Bullets were flying and Jackson was screaming. The only delay between the shots being fired into the apartment by the would-be robbers and the three shots through the bedroom door was the short time it took to shut the front door and for Jackson to run to the bedroom door. After the three shots, Robinson opened the door, with the gun in his hand, shaking, scared, and "in a state of shock." He asked others in the apartment to call 911 and handed Gibson his cellular telephone to do so.
The reasonableness of Robinson's belief "depended in part on the information he possessed, even if he was mistaken."26 In appraising the situation, one may, under the circumstances, be reasonable though mistaken since, as Mr. Justice Holmes has put it, "Detached reflection cannot be demanded in the presence of an uplifted knife."27 I agree with the trial court that, in this situation, Robinson could have reasonably believed that he was in imminent danger of death.
Moreover, the issue of the reasonableness of the belief is a jury question, as the trial court recognized.28 The evidence on the reasonableness of Robinson's belief, combined with the other elements of the affirmative defense of self-defense, only had to be such that, if believed, it would raise a question in the minds of reasonable men concerning its existence.29 Further, by deciding the reasonableness of Robinson's belief of imminent danger in the court of appeals, the majority both reverses the trial court's finding on this issue and usurps the role of the jury.
C. Courts Have Concluded Self-Defense is Applicable Under Similar Facts.
Though like cases are understandably sparse, other courts have agreed under similar facts that self-defense was warranted. InMinx v. Kentucky,30 a man shot at the lock on a basement door of a restaurant/bar because he wanted to know who was in the room behind the door. After the man emptied his gun through the door, the defendant, who was sitting on the opposite side, in line with the shots, fired back through the door as soon as he could draw his pistol and killed someone else standing on the other side. The court concluded that such facts created a clear case of self-defense. Someone was firing through the door, the defendant was within the range of the bullets, there was no time for prolonged reflection, and the defendant could not tell whether the gunfire had ceased. The defendant fired at the shooter and killed someone else. The court explained that if the shooting of the gunman would have been justified, or excusable as self-defense, the shooting of a third person by a bullet intended for the gunman was also excusable.
In Ringer v. State,31 some men believed a "turkey shoot" was to take place at a local general store. Upon arriving, though, they found that the owner had no turkey and decided to convert the adventure into a "chicken shoot." After shooting the available chickens and consuming the available alcohol, two of the men got into a fracas. The defendant, who had been assaulted and twice wounded, fled into his store. Believing his assailant was about to enter the door, the defendant fired his gun toward the door and killed his assailant's father, who had started out the door. The trial court refused to provide an instruction on involuntary manslaughter. The appellate court reversed, holding that the issue of involuntary manslaughter should have been presented to the jury. It explained, "The law does not hold it unlawful or criminal for a man to shoot in necessary self-defense; and if the defendant believed [his assailant] was still following up the attack and it was necessary to shoot in order to protect himself, then the intention with which the act was done was not criminal, for, as before stated, it is not unlawful to intend to do an act which one honestly believes to be necessary to protect himself, when the circumstances justify such belief."32
In Carbo, Inc. v. Lowe,33 three men approached the counter of a liquor store. Two of the men wore masks and carried guns. They flanked the third man who had no mask or gun and was wearing a Gary Public Transportation jacket. The two men fired a volley of shots, and the defendant, an employee, returned the fire. The man wearing the jacket jumped over the counter, and the defendant shot him. He lunged forward, and the defendant shot him again, killing him. Determining that the defendant was entitled to believe that he was being attacked pursuant to a robbery attempt, the court concluded that he was "justified in killing in self-defense," and his actions were "excused just as they would have been had he fired at one of the actual robbers and the bullet had struck [the victim] by accident."34
II. TRANSFERRED INTENT Having concluded that the trial court correctly determined that a self-defense instruction was warranted under the facts of this case, I also believe that the instruction on transferred-intent self-defense under State v. Clifton, supra, should have been provided to the jury. Crucial to this analysis is an explanation of the doctrine of transferred intent from which transferred self-defense flows.
In this case, the state had to prove that Robinson purposely caused Jackson's death. Because there was no evidence that Robinson intended specifically to kill Jackson, the trial court provided the jury with an instruction on transferred intent. The doctrine of transferred intent allows the state to prove the culpable mental state of a defendant where an act directed toward an intended victim instead harms someone else.35 Thus, in this case the state, relying on transferred intent, did not have to show Robinson intended to kill Jackson, only that he intended to cause someone's death. Obviously, transferred intent generally works for the benefit of the state.
III. Transferred-Intent Self-Defense The defense of transferred-intent self-defense is based on analogous reasoning. In State v. Clifton, supra, this court held,
The accidental killing of an innocent party by one acting in self-defense against an attack by another is not a crime and the failure of a court to so instruct a jury deliberating the guilt of one accused of the manslaughter of such a party is error.
The rationale of this holding rest[s] upon the common law theory of "transferred intent" which, in its principal application, establishes that one's criminal intent follows the corresponding criminal act to its unintended consequences. As the noted cases have held, the reasoning applies equally to carry the lack of criminal intent to the unintended consequences and thus preclude criminal responsibility.36
In other words, if Robinson had been justified in killing the unknown robber (the person he intended to kill), his action in killing Robinson would be excusable. Transferred intent usually favors the prosecution; transferred-intent self-defense obviously favors the defendant.
This case is somewhat of an anomaly. Unlike the victim's death in State v. Clifton, Jackson's death was not by a stray bullet. Robinson was behind a closed door when House yelled that they were being robbed. Within seconds, bullets were fired. Jackson screamed. She hit the bedroom door. Robinson fired at the person on the other side of the door, not knowing it was Jackson.
I believe, in looking at the specific facts of this case, that an instruction on transferred-intent self-defense was as warranted as it would have been had Robinson fired at the perceived robber and the bullet struck Jackson by accident.37 There was no evidence tending to prove that Robinson apprehended or had reason to apprehend danger specifically from Jackson. Instead, the evidence demonstrated Robinson was entitled to believe his life was threatened by whoever was on the other side of the bedroom door.38 Thus, Robinson's proposed instruction was substantially correct.
Further, while the trial court provided a general self-defense instruction, that instruction failed to inform the jury that an act of self-defense as to the robbers was also self-defense as to Jackson. The animus to sustain the murder conviction rested solely on the doctrine of transferred intent. Robinson clearly had no idea his cohort was on the other side of the door and had, within seconds before Jackson hit the door, heard screams and shooting. The transferred-intent self-defense instruction was necessary for the jury to evaluate Robinson's claim of self-defense as it applied to Jackson. Without it, the jury was cast at sea with half a compass. Without the requested instruction, the jury easily could have believed that Robinson's intent to kill the robbers could be transferred to prove the intent to kill Jackson, but that he was entitled to defend himself only against the robbers, and that because the robbers were not on the other side of the door, Robinson had no right to defend himself. Because the instruction on transferred-intent self-defense was pertinent, legally correct, and not otherwise covered, I conclude that the trial court improperly refused to provide the instruction. I also conclude that its absence was prejudicial under the specific, uncontroverted facts of this case.
I would sustain Robinson's first assignment of error, reverse the conviction for murder, and remand to the trial court with instructions to provide, in a new trial, the jury with the transferred-intent self-defense instruction. Though some might find that result unfortunate, and of course a second jury might reach the same result as did the first, I much prefer that course to derailing the long-settled law of self-defense.
19 (1972), 32 Ohio App. 2d 284, 290 N.E. 921.
20 See State v. Guster (1981), 66 Ohio St. 2d 266,421 N.E.2d 157.
21 See Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St. 3d 585,575 N.E.2d 828; Cincinnati v. Epperson (1969), 20 Ohio St. 2d 59, 253 N.E.2d 785, oveeruled on other grounds by State v. Carter (1995), 72 Ohio St. 3d 545,651 N.E.2d 965.
22 State v. Boulabeiz (1994), 92 Ohio App. 3d 238,634 N.E.2d 700.
23 Curran v. Chrysler Motors Corp. (June 26, 1996), Hamilton App. No. C-950340, unreported; Alford v. Nelson (Oct. 12, 1994), Jackson App. No. 93CA720, unreported.
24 See State v. Kershaw (Feb. 5, 1999), Hamilton App. No. 980164, unreported, citing State v. Jackson (1986), 22 Ohio St. 3d 281, 283, 490 N.E.2d 893, 896.
25 Cf. State v. Kershaw, supra; State v. Cole (Jan. 22, 1997), Hamilton App. No. C-950900, unreported; State v.Tarrance (Nov. 27, 1996), Hamilton App. No. C-960145, unreported; State v. Williams (1996), 115 Ohio App. 3d 24,684 N.E.2d 358.
26 State v. Thomas (Oct. 8, 1985), Cuyahoga App. No. 49586, unreported, citing Marts v. State (1875),26 Ohio St. 162, paragraph two of the syllabus.
27 1 LaFave Scott, Substantive Criminal Law (1986) 654, Section 5.7(c), quoting Brown v. United States (1921),256 U.S. 335, 343, 41 S. Ct. 501, 502.
28 See State v. Koos (1990), 49 Ohio St. 3d 213,551 N.E.2d 970; State v. Perez (1991), 72 Ohio App. 3d 468,594 N.E.2d 1041; State v. Lucaj (May 17, 1990), Cuyahoga App. No. 56933, unreported.
29 State v. Melchior (1978), 56 Ohio St. 2d 15,381 N.E.2d 195, paragraph one of the syllabus.
30 Minx v. Kentucky (1937), 266 Ky. 801,100 S.W.2d 825.
31 Ringer v. State (1905), 74 Ark. 410,85 S.W. 410.
32 Id. at 262, 85 S.W. at 412.
33 Carbo, Inc. v. Lowe (Ind.App. 1988),521 N.E.2d 977.
34 Id. at 981.
35 See State v. Mullins (1992), 76 Ohio App. 3d 633,602 N.E.2d 769.
36 State v. Matthew (1979), 91 Cal. App. 3d 1018,154 Cal. Rptr. 628, relying on State v. Clifton, supra. See, e.g., Annotation. (1974), 55 A.L.R. 3d 620.
37 Cf. Carbo, Inc. v. Lowe , supra;Minx v. Commonwealth, supra.
38 Accord State v. Minx, supra.