State v. Gillespie , 2007 Ohio 3439 ( 2007 )

{¶ 27} I dissent from the decision of the majority because I believe that Gillespie's own admission deprived him of the right to a jury instruction on self-defense.

{¶ 28} First, Gillespie acknowledges that he went to Banks's location to "resolve" a purported theft of his dope and money:

{¶ 29} "I just asked him to give me my money and dope back that was on the table."

{¶ 30} It is undisputed that Gillespie took with him a loaded shotgun for protection. Prior to this aggressive act by Gillespie, Banks had neither threatened nor assaulted Gillespie.

{¶ 31} I do not mean to suggest that a person who participates in a criminal enterprise is automatically deprived of the right to assert self-defense. As noted by Judge Painter in his dissent in State v. Robinson (1999),132 Ohio App. 3d 830, 842, 726 N.E.2d 581, "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 a case involved a brutal attack by a customer." However, given the aggressive action taken by Gillespie in order to recover his cash and drugs, he was at fault in creating the situation giving rise to the felonious assault. Gillespie not only created the situation, but extended it after Banks had left Gillespie's residence a second time.

{¶ 32} Gillespie made two further damning admissions that demonstrate that he initiated the physical confrontation and did nothing to avoid the danger.

{¶ 33} "Q: You said `I just could have avoided it?'

{¶ 34} "A: If I would have stayed at home it could have been avoided.

{¶ 35} "Q: And you could have walked away and nothing would have occurred, is that a fair statement?

{¶ 36} "A: It's fair."

{¶ 37} Accordingly, given the particular facts of this case, I cannot conclude that the trial court erred in denying Gillespie's request for a self-defense instruction.