# City of Cleveland v. Welms

> Ohio Court of Appeals · December 7, 2006 · 169 Ohio App. 3d 600

URL: https://www.frixlaw.com/law-library/cases/3773513

## Case

- **Full name:** CITY OF CLEVELAND, Appellee, v. John P. WELMS, Appellant
- **Court:** Ohio Court of Appeals
- **Decided:** December 7, 2006
- **Citations:** 169 Ohio App. 3d 600; 2006 Ohio 6441; 863 N.E.2d 1125
- **Precedential status:** Published
- **Opinion:** Dissent by Gallagher
- **Judges:** McMonagle, Corrigan, Gallagher, Eighth
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3773513

## Opinion text

Sean C. Gallagher, Presiding Judge,
dissenting.
{¶ 32} I respectfully dissent from the majority’s conclusion that appellant was at fault in creating the situation. Under Ohio law, in order for a defendant to establish self-defense involving the use of nondeadly force, he must prove by a
preponderance
of the evidence (1) that the defendant was not at fault in
creating the situation giving rise to the altercation
and (2) that he had reasonable grounds to believe and an honest belief, even though mistaken, that he was in imminent danger of bodily harm and that his only means to protect himself from such danger was by the use of force not likely to cause death or great bodily harm. See 4 Ohio Jury Instructions (2000), Section 411.33;
State v. Fritz,
163 Ohio App.3d 276 , 2005-Ohio-4736 , 837 N.E.2d 823 . There is no duty to retreat when
*608
nondeadly force is employed.
State v. Marbury,
Montgomery App. No. 19226, 2004-Ohio-1817 , 2004 WL 758404 .
{¶ 33} I would not interpret the law on self-defense as narrowly as does the majority and the trial court. I believe that appellant established by a preponderance of the evidence that Stock, and not appellant, was at fault in
creating the situation
that gave rise to the altercation. DeBaltzo, Loomis, and appellant testified that Stock approached appellant and was aggressive and “in his face.” Stock himself corroborated the fact that
he
approached the appellant and they started to argue. Rossi, a witness for the city, also testified that the two were arguing. Stock created the situation that gave rise to the altercation.
{¶ 34} I would reverse the appellant’s conviction as being against the manifest weight of the evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3773513. Public record. Not legal advice.