Ellis v. State

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Ellis v. State

State: Ohio

Court: Supreme Court

Docket No: 1991-1329

Case Date: 09/02/1992

Plaintiff: Ellis

Defendant: State

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Ellis, Appellee, v. The State of Ohio, Appellant.

[Cite as Ellis v. State (1992), Ohio St.3d .]
Criminal law -- Felonious assault -- Individual cannot assert a

bona fide claim of self-defense when he uses non-lethal

force to defend himself, when.

(No. 91-1329 -- Submitted May 12, 1992 -- Decided August
19, 1992.)

Appeal from the Court of Appeals for Franklin County, No.
90AP-1057.

This case arises from an action brought by appellee,
Nathaniel E. Ellis, seeking compensation for wrongful
imprisonment under R.C. 2305.02 and 2743.48.

In October 1981, Ellis was involved in a fight with Martin
Wohlstein at Wohlstein's business. As a result of the
altercation, Ellis was indicted for felonious assault. At his
trial, Ellis asserted self-defense but was nevertheless
convicted by a jury of the indicted offense. He was
subsequently sentenced to five to fifteen years' imprisonment
for the assault.

Upon appeal of his conviction, the court of appeals
reversed and remanded for a new trial. During his retrial,
Ellis again raised self-defense and was acquitted.

Ellis then filed an action in the Court of Common Pleas of
Franklin County, pursuant to R.C. 2305.02, seeking a
determination that he was a wrongfully imprisoned individual
entitled to compensation under R.C. 2743.48. Holding as a
matter of law that Ellis's acquittal following a claim of
self-defense meant that Ellis was wrongfully imprisoned, the
trial court ruled in Ellis's favor and found that he was
entitled to compensation.

The state appealed the trial court's verdict to the court
of appeals, which affirmed the trial court's holding that
persons acquitted by reason of self-defense were entitled to
compensation for wrongful imprisonment. The court of appeals,
however, in effect reversed the trial court's determination
that Ellis's acquittal operated as a matter of law to entitle
Ellis to compensation. The court held that the state was not
barred by collateral estoppel from contesting the factual
determinations a claimant must prove in order to claim

compensation as a wrongfully imprisoned individual.

Upon the allowance of a motion and cross-motion to certify
the record, this court addressed the court of appeals' rulings
as to (1) the collateral estoppel effect of the acquittal of a
defendant who asserted a claim of self-defense at trial and (2)
whether a person acquitted by reason of self-defense may seek
compensation for wrongful imprisonment. In all aspects, this
court affirmed the judgment of the court of appeals, and the
case was remanded to the court of common pleas for a new
trial. Walden [Ellis] v. State (1989), 47 Ohio St.3d 47, 547
N.E.2d 962.

Upon remand, the court referred the matter to a referee
,who took testimony and issued a report and recommendation
containing findings of fact and conclusions of law. Ellis
testified before the referee that his purpose in entering
Martin Wohlstein's business establishment was to retrieve his
stepson, Antonne Cudgel ("Cudgel") from an altercation with
Wohlstein's son, Jeff Wohlstein, which was taking place
inside. According to Ellis, Martin Wohlstein swung at him as
Ellis opened the door to the establishment, knocking Ellis's
glasses from his face. Ellis testified he then returned a
punch to the right side of Martin Wohlstein's face.

Martin Wohlstein also testified as to his recollection of
the events concluding in the assault and, for the most part,
his testimony of the altercation directly contradicted that of
Ellis. Wohlstein denied hitting Ellis, and testified that
Ellis struck him in the face with a gun after Wohlstein
announced that he was going to call the police. Wohlstein also
testified that the blow to his face required nine stitches, and
in the referee's findings of fact, the referee reported that
"the impression of a round object, approximately 3/8" to 1/2"
in diameter * * * [was] imprinted and depressed upon the face
of Mr. Wohlstein."

The referee found that even viewing Ellis's testimony in a
light most favorable to him, Ellis had not discharged his
burden of proof with respect to his claim of self-defense. The
referee reached this conclusion in part by finding that Cudgel
was the aggressor in the fight with Jeff Wohlstein. By coming
to the aid of his stepson, the referee reasoned, Ellis stood in
the shoes of an aggressor, and thus was not entitled to claim
self-defense. The court of common pleas adopted the referee's
report and recommendation and entered judgment for the state.

Upon appeal, the court of appeals reversed the trial
court's judgment, finding that the trial court's ruling was not
supported by the evidence. The court remanded the case to the
trial court to resolve the differences in testimony between
Wohlstein's version of the facts and Ellis's and to determine
whether Ellis had acted in self-defense.

This cause is now before the court pursuant to the
allowance of a motion to certify the record.

Wristen & Ucker Co., L.P.A., Ellen L. Wristen and David A.
Ucker for appellee.

Lee I. Fisher, Attorney General, and Simon B. Karas;
Michael Miller, Prosecuting Attorney, and William J. Owen, for
appellant.

Per Curiam. In spite of the long and tortuous path this
case has taken through the judicial system, our attention is
now directed to a single issue: whether appellee had a bona
fide claim of self-defense when he used non-lethal force to
defend himself in response to an attack by a commercial
landlord who allegedly struck appellee as he attempted to enter
the landlord's business premises in order to retrieve his
stepson from an altercation within. For the reasons set forth
below, we hold that appellee did not prove by a preponderance
of the evidence that he was justified in entering the business
premises, and therefore appellee could not assert a bona fide
claim of self-defense.

As discussed by the courts below and in our previous
treatment of this case, Walden v. State, supra, this action
arises as a result of Ellis's request to be declared a
wrongfully imprisoned individual entitled to compensation
pursuant to R.C. 2305.02 and 2743.48. Under both R.C. 2305.02
and former 2743.38(A)(4), now 2743.38(A)(5), in order to secure
a declaration of wrongful imprisonment, the petitioner must
demonstrate that the "offense of which he was found guilty,
including all lesser-included offenses, either was not
committed by him or was not committed by any person."

In Walden, we held that a person who was acquitted by
reason of self-defense may seek compensation under these
statutes, but that the judgment of acquittal was not to be
given preclusive effect by the court. Id., 47 Ohio St.3d 47,
547 N.E.2d 962, paragraphs one and two of the syllabus. We
also held that such person bears the burden of proving his
innocence by a preponderance of the evidence, id. at paragraph
three of the syllabus, and we affirmed the court of appeals'
decision remanding the case to the court of common pleas for a
hearing on Ellis's claim. This instant appeal arises from that
hearing on remand.

As stated above, the trial court referred this matter upon
remand to a referee who, after a hearing at which Ellis and
Martin Wohlstein testified, entered his finding of facts and
conclusions of law and recommended that judgment be rendered in
favor of the state of Ohio. After receiving Ellis's objections
to the referee's report, the court adopted the findings of fact
and conclusions of law as its own, and entered judgment for the
state.

The referee concluded that even if Ellis's testimony was
accepted in full and Wohlstein's testimony was completely
rejected, Ellis had not met his burden of proving by a
preponderance of the evidence that he did not commit felonious
assault or any lesser-included offense. Relying upon this
court's holding in State v. Wenger (1979), 58 Ohio St.2d 336,
339, 12 O.O.3d 309, 311, 390 N.E.2d 801, 803, that "[a] person
who intervenes in a struggle and has no duty to do so, acts at
his own peril if the person assisted was in the wrong," and
upon a notion that an aggressor has a duty to retreat, the
referee concluded that Ellis could not avail himself of
self-defense even if he intended merely to break up the
altercation or rescue his stepson. The referee intimated that
because the aggressor had the duty to retreat, one who seeks to
aid an aggressor also has a duty to retreat and thus may not
intervene.

The referee in his conclusions of law also made two
statements that are pertinent to our review. First, the
referee noted that "[t]he uncontroverted testimony is that
Antonne Cudgel was the aggressor" in his confrontation with
Jeff Wohlstein. Second, the referee found that "* * * Mr.
Ellis had no legitimate right to enter into the business
premises[,] and if Mr. Wohlstein attempted to prohibit his
entrance or strike him as he entered in order to keep Mr. Ellis
from joining the affray, it must still be concluded that Mr.
Ellis was not legally justified in striking back."

The court of appeals rejected the referee's analysis and
held that the referee's conclusions and recommendation were not
supported by the findings of fact. In particular, the court
found that the referee failed to resolve factual issues that
were necessary to support the conclusion that Ellis did not
have a legitimate right to enter the business and that
Wohlstein had the right to use force to keep Ellis from
entering the business. The court also faulted the referee's
reliance upon an aggressor's duty to retreat when, under
plaintiff's version of the facts, lethal force was not involved.

Although we agree with the court of appeals that the
referee's report and recommendation are factually "thin," we
find the chief problem with the referee's analysis to be his
application of the law in Wenger. While it may be true, as
found by the referee, that Ellis entered the Wohlstein premises
to retrieve Cudgel from the affray and thus that Ellis sought
to "aid" an aggressor, that fact alone would not deprive Ellis
of a right to self-defense. Merely attempting to stop an
altercation, without the use of force against the aggressor's
victim, is not the type of activity this court sought to
address in Wenger.

Wenger stands for the simple proposition that one who uses
force to intervene in a conflict on behalf of another may not
invoke a privilege of self-defense if the person defended was
the aggressor in the conflict. 58 Ohio St.2d at 339-340, 12
O.O.3d at 311, 390 N.E.2d at 803. Such use of force involves
more than merely removing the aggressor from a conflict; the
term normally denotes force directed against the aggressor's
victim in the defense of the aggressor. Accord Prosser &
Keeton, Law of Torts (5 Ed.1984) 129-131, Section 20. Here,
Ellis's action was not directed against the victim of the
aggression, but rather against a third party, Martin
Wohlstein. The referee, by failing to find that Ellis used
force on behalf of Cudgel and against Jeff Wohlstein, erred in
concluding that Ellis was coming to the aid of an aggressor and
was thus without a privilege of self-defense.

Although we agree with the court of appeals that the
referee's analysis was flawed, we nevertheless conclude that
the trial court's judgment for the state of Ohio was correct.
We reiterate that the claimant in a wrongful imprisonment
action against the state has the burden of demonstrating his
innocence by a preponderance of the evidence. In this context,
that proposition required Ellis to bear the burden of proving
that he had a valid claim to self-defense. To discharge that
burden, it was not sufficient for Ellis to prove merely that he
was defending himself from attack. In order to take into
account a landlord's privilege to use reasonable, non-lethal

force to defend his business from trespassers, In re Sekulich
(1981), 65 Ohio St.2d 13, 16, 19 O.O.3d 192, 194, 417 N.E.2d
1014, 1016, Ellis also needed to prove that he was justified in
entering the business premises, and that the landlord was
acting without justification when the landlord used force
against him. Thus, Ellis bore the burden of proving that he
was entitled to enter the business, either as an invitee or
under some other privilege. This he did not do.

The referee's statement that Ellis "had no legitimate
right to enter into the business premises," although appearing
in the "conclusions of law" portion of the report and
recommendation, by necessity implies that the business was not
open to the public. It thus appears that, at least on this
issue, the referee weighed the testimony presented and
concluded that Ellis failed to demonstrate by a preponderance
of the evidence that he was privileged to enter the Wohlstein
business at the time of the altercation. We find sufficient
evidence in the record to support the referee's conclusion.

Ellis advances no other privilege, such as the defense of
a non-aggressor, to justify his entrance into the business
premises,1 and thus we can only conclude that Ellis entered the
Wohlstein business as a trespasser. A trespasser is not
entitled to assert self-defense to justify an assault upon
another who legitimately used non-lethal force to exclude him
from the property. Thus, we conclude that because Ellis failed
to show that he was justified in entering the business
property, Ellis could not justify his assault upon Martin
Wohlstein on the basis of self-defense. Accordingly, we
reverse the judgment of the court of appeals and enter judgment
for the state of Ohio.

Judgment reversed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.
FOOTNOTES:

1 Even if Ellis had invoked the defense of Cudgel as a justification for his entrance upon the business property, it is uncontroverted that Cudgel was the aggressor and not the victim in his altercation with Jeff Wohlstein. As we stated above, Ellis bore the burden of proving not only that he acted in self-defense, but also that he was justified in entering the business property of another. Only by proving that Cudgel was not the aggressor could Ellis justify his trespass.

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