Witnesses said DuBose was upset with the children and then fired after one child walked across his lawn and another bumped his car.
DuBose is charged with Felonious Assault.
What is a bit surprising is the quote from Ivhan`e’s mother, Aquadea Merritt: “Everything else is fine, she’s doing fine . . . I’m not mad or anything, I’m not upset. I’m hurt that she’s in the hospital and she’s injured. But otherwise that she’s good, she’s healthy, ain’t nothing wrong. It could have been a main artery or anything, she could have been dead.”
Notably, while I do not believe it will help DuBose, Ohio has a Castle Doctrine law. That law states in pertinent part:
2901.05 Burden of proof – reasonable doubt – self-defense.
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
(2)(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.
(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.
(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.
Some courts have extended these laws (which I have criticized in the past) to cover lawns or yards as part of the curtilage. Others have rejected such claims. For example, in Michigan v. Riddle, 467 Mich. 116 (2002), rejected such a claim:
Defendant, who was outside his home in the driveway or yard between the home and a detached garage at the time of the homicide, contends that he was wholly excused from any obligation to retreat because he was in his “castle.” We disagree and hold that the castle doctrine, as it applied in this state and as was codified in our murder statute in 1846, applies solely to the dwelling and its attached appurtenances. Although many courts have extended the castle exception to other areas, 26 we conclude that there is simply no basis in the case law of this state, contemporaneous with the enactment of our initial murder statute, to justify extending the rule in this manner.
Here the child was not an aggressor and DuBose was not acting in defense of himself or his dwelling.
Source: Fox *