What is the Self-Defense Standard?

And Whom to Believe?

Having carefully reviewed the entirety of the evidence presented at trial, we cannot say the trier of fact lost its way or created a manifest miscarriage of justice in finding Gardner guilty of domestic violence despite her claim of self-defense.


State v. Gardner

2022 – Ohio – 381

Eighth District Appellate Court

Cuyahoga County, Ohio

February 10, 2022

Mr. Million Wheeler is Ms. Gail Gardner’s nephew and they live together.  Ms. Gardner was charged, tried and convicted of Domestic Violence against her adult nephew and appealed her conviction.

Mr. Wheeler testified that he was on probation for a drug trafficking case in federal court at the time of the incident. On the day of the incident, his aunt was very upset when she found out that her sister was in the hospital for a serious illness, but he never informed her of it. She telephoned him to tell him to come home to pick up his belongings because she wanted him out of her residence. When he arrived, she asked him what happened with his mother, and he just ignored her. She became furious. While he gathered his belongings, she started to “bump” him with her leg and also put her knee in his forehead. At one point, she grabbed him, and he pushed her, causing her to fall. She got up and hit him in the jaw. She then took his clothes out of the closet and threw them out the front door. After that, she attacked him again. He tried to restrain her without “doing extra damage” because he was on probation; he grabbed her arms and shoulder while she grabbed him and scratched him. He tried to restrain her, putting his hands in her neck area. Mr. Wheeler testified that he was in a “state of trauma” because he had to fight his aunt off without hurting her.

Mr. Wheeler further testified that, after the struggle, Ms. Gardner went into her room and came out with a metal bat, a “Louisville Slugger,” and hit him in his rib cage. He grabbed the bat, and the two “tussled” over the bat. When he got hold of the bat and dropped it, she went into the kitchen and grabbed a butcher knife and threatened him with the knife. She dropped the knife, however, and told him she was going to call his probation officer. At that point, Mr. Wheeler stepped outside the house and called 911.  Later, the Ms. Gardner’s defense counsel would argue that Mr. Wheeler was the aggressor and he initiated the call to 911 to sway law enforcement to believe he was the victim when he was the aggressor.

After calling 911, Mr. Wheeler went to the kitchen to gather his items there. Ms. Gardner came in and grabbed the spice jars from his hand and threw them at him. When he tried to retrieve salad dressings from the refrigerator, she smacked him in the head with the refrigerator door. When the police officers arrived, he turned around and walked toward the officers. Ms. Gardner threw an item at him, which is captured in an officer’s body camera. Mr. Wheeler testified that the officers initially put him in handcuffs but took them off after he gave an account of the incident.

Officers Wanda Wright and Jonathan Selleny, who were among the officers responding to the domestic violence incident, testified as well. The two officers arrived at Ms. Gardner’s residence and witnessed Ms. Gardner throwing objects at Mr. Wheeler’s head, which was captured in Officer Selleny’s body camera. Mr. Wheeler informed Officer Wright that he was hit with a bat, which Mr. Wright located in Ms. Gardner’s bedroom. Officers Wright and Selleny talked to Ms. Gardner while the other officers also at the scene talked to Mr. Wheeler, who indicated he was defending himself during the altercation. Officer Selleny testified that, based on Ms. Gardner’s and Mr. Wheeler’s statements, the officers determined Mr. Wheeler’s injuries were sustained from trying to defend himself. They determined Ms. Gardner was the primary aggressor and placed her under arrest for domestic violence.  This is often a very difficult task for law enforcement to determine who the primary aggressor is when there are conflicting stories.

Sergeant Newton, who did not testify, took several photographs of Mr. Wheeler. The trial court admitted the photographs, which depicted what appeared to be scratch marks on Mr. Wheeler’s body, over the objection from the defense on the ground that the photographs were not properly authenticated. In addition to the photographs, an audio tape of Mr. Wheeler’s 911 call to the police and Officer Selleny’s body camera were played at the trial.

He Said – She Said

Ms. Gardner then testified on her own behalf. She was angry with her nephew Mr. Wheeler because she found out her sister was seriously ill at the hospital yet Mr. Wheeler, who was living with her at the time, never told her about it. She called him to tell him to move out of her residence. While he was in the house gathering his belongings, she followed him around asking him questions about his mother. Because he ignored her, she argued with him “in his face.”

Ms. Gardner testified that, at one point, he pushed her and she fell. She got up and got “in his face” again, and he knocked her down again. She was very upset he put his hands on her and also felt scared. To protect herself, she grabbed a metal bat and “raised up the bat to” Mr. Wheeler. She did not hit him with the bat however, and, while she hesitated, Mr. Wheeler grabbed the bat and was “slinging [her] around the room with the bat” because she would not let go of the bat. He finally took the bat from her, and the next thing she knew, she was against a wall and he had his hands round her neck, “choking [her] out.” Realizing she was losing the fight, she started to gather his belongings and threw them out the door. Because Mr. Wheeler pushed her down twice and “choked [her] out,” she called 911 too. She steadfastly maintained that she did not hit her nephew with the bat. Her 911 call was not submitted as evidence. During the cross-examination of Ms. Gardner, the prosecution played a segment of Officer Selleny’s body camera where Ms. Gardner can be heard saying to the officer, “I tried to punch his ass” and “[n]ext time he puts his hands on [me] he’s going to be a dead black man and [I’m] going to be in jail.” She, however, testified that she tried to punch Mr. Wheeler to protect herself and make sure she did not get hurt.

At the closing argument, the prosecutor argued that the evidence did not reflect that Ms. Gardner acted in self-defense. The defense argued that Ms. Gardner repeatedly testified that she had to protect herself and that Mr. Wheeler calling the police was merely an attempt to be considered the victim in the altercation in order to avoid a violation of his probation. The defense also argued it was Mr. Wheeler, not Ms. Gardner, who created the situation leading to the altercation and that Ms. Gardner was using reasonable force to protect herself.

The trial court found the state proved its charge of domestic violence beyond a reasonable doubt. The trial court noted that while the testimony of both Ms. Gardner and Mr. Wheeler indicated Mr. Wheeler pushed Ms. Gardner and she fell to the ground and he also grabbed her near the throat, Mr. Wheeler’s testimony indicated these were defensive moves done in an attempt to restrain Ms. Gardner. The trial court also noted that the testimony of both parties reflected that Ms. Gardner was the initial aggressor. Finally, the trial court noted that, consistent with the testimony, there was a scratch on Mr. Wheeler that was visible in the photographs taken by the police at the scene.

Ultimately the trial court rejected Ms. Gardner’s claim of self-defense and she was convicted.  Ms. Gardner appealed to the Eighth District Appellate Court which held “Having carefully reviewed the entirety of the evidence presented at trial, we cannot say the trier of fact lost its way or created a manifest miscarriage of justice in finding Gardner guilty of domestic violence despite her claim of self-defense.”.

Information for this article was obtained from State v. Gardner, 2022 – Ohio – 381.

This case was issued by the Eighth District Appellate Court which is only binding in Cuyahoga County, Ohio.

Lessons Learned:

  1. Ms. Gardner and Mr. Wheeler both claim self-defense in this incident. Ultimately the officers at the scene, the trial court and the appellate court believed Mr. Wheeler and not Ms. Gardner.  To review Self-Defense as an affirmative defense I will begin with the Ohio Revised Code, which states in pertinent part: A person is allowed to act in self-defense, defense of another, or defense of that person’s residence. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be. O.R.C. §2901.05(B)(1)
  2. In 1990 the Supreme Court of Ohio further evaluated the aforementioned statute on Self-Defense and created a three prong test to evaluate Self-Defense: (1) she was “not at fault in creating the situation giving rise to the affray”; (2) she had a “bona fide belief that she was in imminent danger of death or great bodily harm” and that her only means of escape was in the use of force; and (3) she had not “violated any duty to retreat or avoid danger.” State v. Williford, 49 Ohio St.3d 247, 249, (1990).
  3. Self-Defense is one of many Affirmative Defenses. In order for a defendant to successfully claim Self-Defense he must prove it to a Preponderance of the Evidence, often called a fifty-one percent standard.  Here, both Mr. Wheeler and Ms. Gardner claim Self-Defense as the reason the other person was assaulted.
  4. In this case the Eighth District Appellate Court evaluated the first prong – was the defendant not at fault in creating the situation giving rise to the affray? Here the court opined “Wheeler testified Gardner was enraged when he ignored her inquiry about his mother’s condition and started to “bump” him and, at one point, grabbed him. He tried to restrain her by pushing her, causing her to fall, and when she got up, she hit him in the jaw. While they struggled with each other, she grabbed him and scratched him. A scratch mark was visible in the photographs taken by the police at the scene. Gardner admitted she followed Wheeler around while he gathered his belongings and was “in his face.” The trial court found Gardner to be the initial aggressor; in other words, she was at fault at creating the incident leading to the affray.”.  Because Ms. Gardner was determined to be the primary aggressor the determination was that she created the situation that led to her injuries and therefore did not prove self-defense to a preponderance of the evidence but rather Mr. Wheeler did.  Consequently, Ms. Gardner’s conviction for Domestic Violence was upheld.
  5. Domestic violence calls are very dangerous for law enforcement because the parties are often aggressive upon arrival. Many times one or both parties are impaired and unreasonable – though not always in that order.  Many law enforcement assaults and deaths occur during domestic violence calls for service.  Additionally, it is often difficult to navigate the investigation because both parties [or more] will embellish the story to distort the facts in his or her favor.  This call for service was no different.  The officers initially handcuffed Mr. Wheeler for investigative detention.   As the officers obtained more information, the handcuffs were removed from Mr. Wheeler and soon placed on Ms. Gardner for being the primary aggressor.  Officer Wanda Wright, Officer Jonathan Selleny and Sgt. Newton should be commended for navigating this investigation during a tense, fast-evolving incident.  Well done!

Does your agency train on Domestic Violence?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.