State v. Marbury

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[Cite as State v. Marbury, 2003-Ohio-3242.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 19226 T.C. CASE NO. 99-CR-3532 CEDRIC J. MARBURY : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . DECISION AND ENTRY Rendered on the __________ day of June, 2003. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0067685 Attorney for Plaintiff-Appellee Gary Schaengold, 1406 Liberty Tower, 120 W. Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant . . . . . . . . . PER CURIAM: {¶1} Defendant, Cedric Marbury, appeals from his convictions for felonious assault and kidnapping, both with gun specifications, and the resulting sentences of incarceration that the trial court imposed. {¶2} Counsel appointed to represent Marbury in this appeal 2 has filed an Anders1 brief, in which counsel represents that he finds no meritorious issues for appellate review. However, counsel did identify several potentially meritorious issues. {¶3} We advised Marbury of his attorney s conclusions and representations and should he disagree. assignments invited Marbury file a pro se brief Marbury has filed a brief containing three of error. One and proposed, to of which the Marbury also issues which presents, his counsel involves the instructions to the jury. {¶4} which The alleged victim of the assault and kidnapping of Marbury serious was gunshot convicted wound in is their Terry Bell, altercation. who suffered The a State s evidence showed that when Bell drove past Defendant s house, Defendant ran into the street to stop Bell s vehicle, and a few moments later the Defendant pulled a gun from behind his back and shot Bell. inside. Defendant then drove off in the car, with Bell {¶5} Bell eventually fell from the car several blocks away. Defendant Marbury s evidence was that Bell stopped his car and parked in the street at the entrance to Defendant s driveway. Defendant was then in his garage. When he walked down his driveway to where Bell s vehicle was parked, the two argued and Bell pulled a gun. 1 Defendant then jumped into the Anders v. California (1967), 386 U.S. 738. car to wrestle the gun himself from harm. away from Bell in order to 3 protect The two men fought as the cart drifted slowly down the street. Shortly, the gun discharged, resulting in Bell s injuries. {¶6} defense, Defendant and the requested court a gave jury the instruction requested a related no duty to retreat instruction. self- Bell instruction. on also The court declined to give that instruction {¶7} We are charged by Anders to determine whether any issues involving potentially reversible error that are raised by appellate counsel or by a defendant in his pro se brief are wholly frivolous. (Id. A p. 774) If we find that any issue presented or which an independent analysis reveals is not wholly frivolous, represent we the must appoint defendant. different State v. appellate Pullen (Dec. counsel 6, to 2002), Montgomery App. No. 19232. {¶8} Anders equates a frivolous appeal presents issues lacking in arguable merit. lack arguable merit merely because the with one that An issue does not prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal. Pullen, supra. {¶9} Self-defense is an affirmative defense 4 which, if proved, relieves an accused of criminal liability arising from his conduct. The burden of going forward with the evidence of an affirmative defense, and the proof, by a preponderance of the evidence, for an affirmative defense, is on the accused. R.C. 2901.05(A). {¶10} To establish self-defense the following must be shown: (1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of force, and (3) the accused must not have violated any duty to retreat or avoid the danger. 56 Ohio St.2d 15. in self-defense In most circumstances, a person may not kill if he has available retreat from the confrontation. Ohio St.3d 247. home. State v. Melchiot (1978), a reasonable means of State v. Williford (1990), 49 However, there is no duty to retreat from one s Id., at p. 250. {¶11} If correctly requested state the special law instructions involved, and are to the pertinent to jury the evidence presented and timely filed, they must be included in the general charges, at least in substance. (1992), 65 Ohio St.3d 589. State v. McCarthy An instruction is pertinent to the evidence when the evidence, if believed, would permit the trier 5 of fact to convict or acquit on the facts which the evidence portrays. {¶12} Defendant s evidence, if believed, could support a finding that Bell was the aggressor and that Defendant was on the curtilage of his own property when Bell s aggression began; that is, when Bell pulled a gun and threatened Defendant. Therefore, if a self-defense instruction was given, an argument may be made that the jury should also have been instructed concerning the no duty to retreat element of self-defense. Being a claim with arguable merit, an assignment of error complaining of the trial court s refusal to give the requested instructions is not frivolous for purposes of Anders {¶13} Having found that at least one claimed error arising from the trial proceeding is not frivolous, we will set aside counsel s Anders brief and appoint other counsel to represent Defendant on appeal. Counsel is, of course, free to raise any other issues which counsel concludes has arguable merit. ORDERED. ______________________________________ JAMES A. BROGAN, JUDGE ______________________________________ THOMAS J. GRADY, JUDGE ______________________________________ SO 6 FREDERICK N. YOUNG, JUDGE Copies mailed to: Johnna M. Shia Asst. Pros. Attorney P.O. Box 972 Dayton, Ohio 45422 Gary Schaengold, Esq. 1406 Liberty Tower 120 W. Second Street Dayton, Ohio 45402 Hon. David G. Sunderland Cedric Marbury #419-373 2D 157 Warren Corr. Institute P.O. Box 120 Lebanon, Ohio 45036

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