         [Cite as State v. White, 2020-Ohio-1231.]




                       IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




CITY OF CINCINNATI,                                  :   APPEAL NO. C-190262
STATE OF OHIO,                                           TRIAL NO. 16TRD-949-B/C
                                                     :
        Plaintiff-Appellee,
                                                     :       O P I N I O N.
  vs.
                                                     :
GREGORY WHITE,

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed

Date of Judgment Entry on Appeal: March 31, 2020



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jon
Vogt, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}   Defendant-appellant Gregory White was found guilty after a bench

trial of operating a vehicle without reasonable control, a violation of R.C. 4511.202,

and failing to stop after an accident on a public highway, a violation of R.C. 4549.02.

White challenges his convictions as based upon insufficient evidence and contrary to

the weight of the evidence. For the following reasons, we reverse his convictions.

                                        Facts

       {¶2}   In the early morning hours of January 1, 2016, White was driving his

Chevrolet S-10 pickup truck north on I-75 towards the I-74 interchange in

Cincinnati. While on I-75, between Harrison Avenue and Hopple Street, White rear-

ended a Ford Explorer. After the accident, White pulled over to the side of the

highway to speak to the driver of the Ford Explorer, Julian Vega.

       {¶3}   As White stopped, Vega exited from his vehicle and began banging on

the driver’s side window of White’s truck. White testified that there was no way he

could talk to Vega because Vega “was just banging on the window like he was trying

to get into my car but I had my door locked.” White said Vega “was real angry” to the

point that White felt his safety was in jeopardy and that he had to leave. White drove

off, but Vega pursued him.

       {¶4}   Vega sped ahead of White, getting in front of White just as he was

merging from I-75 onto I-74. Vega slowed down and stopped in the middle of the

highway, which required White to slow down and stop to avoid hitting him. As

White stopped, Vega again got out of his vehicle and began banging on the window of

White’s truck. White testified that there was no sense in trying to talk to Vega

because of how angry he was, “like he was going to do something.” White backed up




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                     OHIO FIRST DISTRICT COURT OF APPEALS



and again drove away, explaining that he was in shock “trying to get away from this

guy.”

        {¶5}   As the first confrontation between White and Vega was occurring,

Christopher Reide drove onto I-75 near Seventh Street in his Subaru Legacy. Reide

testified that he saw a Chevrolet S-10 and a Ford Explorer stopped in the far left lane

of the highway. Shortly thereafter, both vehicles sped past him and moved into the

center lane, the lane that Reide was in. Reide testified that it appeared that the Ford

Explorer was trying to get the Chevrolet S-10 to stop by braking and blocking the

truck’s path. Reide explained that the vehicle immediately in front of him swerved

out of the way to avoid the stopping vehicles. Reide, who was driving 60 m.p.h.,

came to a complete stop in the center lane of I-75, directly behind the Chevrolet S-10.

        {¶6}   Before Reide could maneuver around the two vehicles, he saw the

driver of Ford get out of his vehicle and attempt to open the door of the Chevrolet.

Reide said the Chevrolet then backed up and hit his car, and pulled away hitting his

car again. Reide indicated that both impacts were minor. As the Chevrolet drove off,

Reide called 911 and pursued the vehicle. The Ford also joined the pursuit. All three

vehicles continued from I-75 onto I-74, exited the highway at Montana Avenue, and

continued south on Montana Avenue towards Ferncroft Drive.

        {¶7}   White testified that when he entered the turn lane on Montana Avenue

to turn onto Ferncroft Drive, Vega used his Ford to push White off the road. White’s

truck veered off the road and came to a stop in a resident’s front yard. White said

that he was trying to start his truck back up when Vega opened his passenger’s side

door and hit him with something. White said that he did not know what happened

after that.




                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶8}   When Reide pulled up, he was still on the phone with 911 and told the

dispatcher that the two drivers were fighting.        Reide saw that Vega had the

passenger’s side door open and was leaning over to the driver’s side, swinging on

White.

         {¶9}   Cincinnati Police Officer Curtis Latham responded to the incident and

testified that he observed two individuals fighting when he arrived on the scene.

White was transported to the hospital. Latham testified that there was damage to the

front and the passenger’s side of White’s truck. He also indicated that the Ford

Explorer had damage to the rear bumper, front bumper, and driver’s side.

                                 Procedural History

         {¶10} As a result of the accident with Reide, White was charged with

operating a motor vehicle without being in control of it, in violation of R.C. 4511.02

(Count B), and failing to stop after an accident, in violation of R.C. 4549.02 (Count

C). White was also charged with driving while his license was suspended, in violation

of R.C. 4510.11, but pled to the lesser charge of violating R.C. 4510.16 (Count A).

Following a bench trial, White was found guilty of the B and C charges. The trial

court sentenced White to court costs on Count B, and 180 days in jail with 180 days

suspended, one year of community control, a six-month driver’s license suspension,

and a $50 fine on Count C.

         {¶11} White appealed Counts B and C, and the trial court granted a stay of

both sentences pending appeal. This court dismissed White’s appeal for lack of a

final appealable order. State v. White, 1st Dist. Hamilton Nos. C-160403 and C-

160410 (June 14, 2017).      We held that because court costs are not considered

criminal punishment and are therefore not part of a sentence, White was not actually




                                              4
                      OHIO FIRST DISTRICT COURT OF APPEALS



sentenced. White appealed to the Ohio Supreme Court, which affirmed the judgment

of this court, holding that

       No magic words are required, and there is no requirement that a fine

       or other sanction be imposed before it may be waived. The trial court’s

       decision not to impose a sentence must simply be clear in the entry.

       For example, in this case, it would have been sufficient for the trial

       court to state in the entry “no fine,” “fine waived,” “$0 fine,” or similar

       language.

State v. White, 156 Ohio St.3d 536, 2019-Ohio-1215, 130 N.E.3d 247, ¶ 15. The court

dismissed White’s appeal for lack of a final, appealable order.

       {¶12} White returned to the trial court, which then imposed “a zero dollar

fine and costs.”    Accordingly, the language in the entry now being appealed is

sufficient for a final and appealable order, and this court has jurisdiction to proceed.

       {¶13} White now asserts two assignments of error for our review.

                                       Analysis

       {¶14} For ease of discussion, we address White’s assignments of error out of

order. In his second assignment of error, he argues that the trial court erred in

finding him guilty of operating a vehicle without being in control of it and failing to

stop after an accident because both convictions were against the manifest weight of

the evidence. White asserts that the trial court misapplied the law for using duress

as an affirmative defense and that he proved by a preponderance of the evidence that

he was under duress during the events involving Reide.

       {¶15} Though White alleges that his convictions were against the manifest

weight of the evidence, he ultimately maintains that the trial court erred as a matter

of law. We therefore recast his assignment of error to reflect his argument. We


                                               5
                      OHIO FIRST DISTRICT COURT OF APPEALS



review errors of law de novo. See State v. Romeo, 11th Dist. Portage No. 2007-P-

0066, 2008-Ohio-1499.       Under a de novo standard of review, we review the

judgment independently and “without deference to the trial court’s determination.”

State v. Linnen, 10th Dist. Franklin No. 04AP-1138, 2005-Ohio-6962, ¶ 9.

       {¶16} At trial, White raised the affirmative defenses of duress and/or

necessity to both charges. “The terms ‘necessity’ and ‘duress’ are distinct, yet are

often used interchangeably and are often indistinguishable.” State v. Cross, 58 Ohio

St.2d 482, 483, 391 N.E.2d 319 (1979), fn.2. The theme of both terms is “that

imminent, immediate danger or threat of danger prevents the actor from exercising

his own will, and that there is no alternate path to take. Therefore, the actor is forced

to choose between the lesser of two evils.” Id. The difference between duress and

necessity is that duress involves a human threat whereas necessity involves a threat

from natural or physical forces. (Internal citation omitted.) State v. Lawson, 2d

Dist. Montgomery No. 22155, 2008-Ohio-1311, ¶ 21.

       {¶17} In order to establish the defense of duress, the defendant must

establish five elements:

       (1) a harm due to the pressure of a human force; (2) the harm sought

       to be avoided was greater than, or at least equal to that sought to be

       prevented by the law defining the offense charged; (3) the actor

       reasonably believed at the moment that his act was necessary and was

       designed to avoid the greater harm; (4) the actor was without fault in

       bringing about the situation; and (5) the threatened harm was

       imminent, leaving no alternative by which to avoid the greater harm.

State v. Flinders, 9th Dist. Summit No. 26024, 2012-Ohio-2882, ¶ 30.




                                               6
                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶18} “The force used to compel the actor’s conduct must remain constant,

controlling the will of the unwilling actor during the entire time he commits the act,

and must be of such a nature that the actor cannot safely withdraw.” (Internal

citations omitted.) State v. Getsy, 84 Ohio St.3d 180, 199, 702 N.E.2d 866 (1998).

In other words, “the immediacy of the harm threatened is an essential element of the

defense.” State v. Jordan, 11th Dist. Trumbull No. 2009-T-0110, 2010-Ohio-5183, ¶

25, rev’d in part on separate grounds, 128 Ohio St.3d 268, 2011-Ohio-737, 943

N.E.2d 565. “Fear of future harm cannot be the basis of such a defense.” State v.

Good, 110 Ohio App. 415, 419, 165 N.E.2d 28 (10th Dist.1960). The Ohio Supreme

Court has held that the duress defense “is strictly and extremely limited in

application and will probably be effective in very rare occasions. It is a defense and

not a conjured afterthought.” State v. Cross, 58 Ohio St.2d 482, 488, 391 N.E.2d 319

(1979).

          {¶19} The defense of duress is judged by an objective standard—i.e., the

defendant must have a subjective good faith belief of serious bodily injury but that

belief must be reasonable. See State v. Harkness, 75 Ohio App.3d 7, 11, 598 N.E.2d

836 (6th Dist.1991) (upon escape from a police car “appellant subjectively believed,

and there was objective evidence to support the belief, that were he to be placed in

jail he might be subject to serious bodily injury or death as the result of his activities

as a police informant”); State v. Procter, 51 Ohio App.2d 151, 158, 367 N.E.2d 908

(4th Dist.1977) (duress must be of such a nature that there is a “well-grounded

apprehension of death or serious bodily injury”).

          {¶20} The defendant has the burden of proving the affirmative defense of

duress by a preponderance of the evidence. State v. Ireland, 155 Ohio St.3d 287,




                                                7
                     OHIO FIRST DISTRICT COURT OF APPEALS



2018-Ohio-4494, 121 N.E.3d 285. “A preponderance of the evidence is defined as

that measure of proof that convinces the judge or jury that the existence of the fact

sought to be proved is more likely than its nonexistence.” State ex rel. Doner v.

Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54.

       {¶21} In this case, the trial court indicated that as a matter of law White’s

duress defense did not apply to these circumstances. The court stated:

       In my opinion the duress necessity defense has a limit as to how far it

       can be extended and what ongoing conduct is quote unquote protected

       by the duress defense. Had the Defendant been charged with leaving

       the scene of the accident or any conduct related to that accident with

       the Ford Explorer, the duress defense in that situation may well have

       been appropriate.

       However, when continued violations of law continue to occur and the

       victims of those incidents have no relationship to that immediate

       threat, I can’t find that the Defendant has met its (sic) burden of proof

       that its (sic) culpability for that subsequent conduct can be excused.

       Therefore, the Court is simply not willing to extend the duress defense

       beyond the initial accident involving the Explorer. And, therefore, I do

       not believe that the defense has an inculpability as it relates to the

       subsequent conduct including the accident of the failing to maintain

       reasonable control that led to the Reide accident and the failure to stop

       from that accident, stemming from that accident.

In rejecting White’s affirmative defense, the court explained that it was following

State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319, which limits the application of




                                              8
                      OHIO FIRST DISTRICT COURT OF APPEALS



duress to very rare occasions.

       {¶22} We find the trial court erred as a matter of law in limiting the

application of duress here for three reasons. First, the affirmative defense of duress

can apply to situations involving continued violations of the law.            The only

requirement is that the elements of the defense be met with respect to each charge.

That is to say, as long as the duress is ongoing, the defendant’s ability to use the

duress as an affirmative defense is likewise ongoing. See, e.g., State v. Long, 1st Dist.

Hamilton No. C-090248, 2010-Ohio-1062 (defendant was entitled to raise duress as

defense to charges for aggravated robbery, carrying a concealed weapon, and

improperly handling a firearm in a motor vehicle—charges that resulted from a

sequence of events, or continued violations of the law). Accordingly, White was

entitled to raise the defense of duress to his charges for the events involving Reide.

       {¶23} Second, the victim of the defendant’s conduct need not be the source of

the threatened harm, as the trial court determined. The trial court erroneously

concluded that because White involved Reide—who White was not fleeing from, as

he was in fear of and fleeing from Vega—duress could not apply to the charges that

arose with respect to Reide. Ohio law on duress does not contain such a limitation.

Rather, duress is a defense to a crime irrespective of the identity of the victim. See

Getsy, 84 Ohio St.3d at 197-198, 702 N.E.2d 866.

       {¶24} Finally, while the trial court was unwilling to extend a duress analysis

beyond the first confrontation with Vega and White, this incident was not at issue—

White was not charged for the first accident involving Vega. White was only charged

for the events involving Reide, and the court was obligated to consider duress as a

defense under those facts.       Therefore, the majority sustains White’s second




                                               9
                     OHIO FIRST DISTRICT COURT OF APPEALS



assignment of error as recast and reverses the judgment of the trial court.

                               White Proved Duress

        {¶25} Because the evidence is practically unrebutted that White was acting

reasonably in his efforts to escape Vega, under the authority of App.R. 12(B), I would

go further than the majority and discharge White from further prosecution. App.R.

12(B) authorizes this court to render a judgment in the appellant’s favor if he is

entitled to one as a matter of law—which I believe he is. This is not a case where the

trial court, if this were remanded, would be required to make additional factual

findings in order to render a decision. Moreover, this court has at least twice before

reversed the trial court and discharged an appellant when the trial court erred in

interpreting and applying an affirmative defense to a crime. See State v. Miller, 149

Ohio App.3d 782, 2002-Ohio-5812, 778 N.E.2d 1103 (1st Dist.) (reversing the

judgment of the trial court and discharging appellant upon holding that the

affirmative defense of self-defense was misapplied and that appellant proved the

defense); State v. Heath, 1st Dist. Hamilton No. C-970555, 1998 WL 515967 (Aug. 21,

1998) (reversing the judgment of the trial court and discharging appellant upon

finding that she proved the affirmative defense of defense of a family member).

Accordingly, I see no reason to prolong a case that has been going on nearly four

years since the date of conviction by remanding it back to the trial court, as the

concurring opinion suggests, for a determination that we have the full authority to

make.

        {¶26} In this case, the state argued that White did not meet his burden in

proving duress because he did not demonstrate that he was at risk of immediate,

imminent death or serious bodily injury. The state emphasized that Vega did not




                                              10
                      OHIO FIRST DISTRICT COURT OF APPEALS



have a weapon and that White was safely inside his locked truck before and during

the accident with Reide. The state also noted that White admitted he had a cell

phone yet did not call the police for assistance, and contends that White could have

safely withdrawn from the situation but did not. Looking at the record, however, I

find that White demonstrated by a preponderance of the evidence that he was under

duress.

        {¶27} While Vega did not have a weapon and White was inside his locked

truck, it was still reasonable for White to believe he was at risk of serious bodily

injury. White was not required to have actual injuries. See, e.g., United States v.

Bailey, 444 U.S. 394, 415, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (“An escapee who

flees from a jail that is in the process of burning to the ground may well be entitled to

an instruction on duress or necessity, ‘for he is not to be hanged because he would

not stay to be burnt.’ ”), citing United States v. Kirby, 74 U.S. 482, 487, 19 L.Ed. 278

(1868). White testified that after the fender-bender with Vega, when he pulled over

and stopped, as is customary, he feared for his safety because Vega began angrily

banging on his driver’s side window. Recognizing this behavior as threatening, not

to mention bizarre, White took the opportunity to escape the situation and drove

away.

        {¶28} Vega then pursued White, which was corroborated by Reide, and used

his vehicle to block White and force him to stop in the middle of the highway at

night. While this event did not result in serious bodily injuries, it very well could

have. See, e.g., State v. Allsup, 3d Dist. Hardin No. 6-10-09, 2011-Ohio-404 (“an

automobile is a thing that is capable of inflicting death” particularly when used

against another vehicle with a victim positioned inside). Then, with Reide behind




                                               11
                     OHIO FIRST DISTRICT COURT OF APPEALS



White and Vega in front of him, White was prevented from safely withdrawing from

the situation as he did the first time. Compare State v. Flinders, 9th Dist. Summit

No. 26024, 2012-Ohio-2882 (defendant had the opportunity to escape the situation

in his car by driving away, but did not take it and thus could not claim duress).

       {¶29} White testified that Vega, again, immediately began banging on

White’s window and tried to open his truck, which was also corroborated by Reide.

While it is argued that White could have called the police at this moment, contacting

the police would not have removed him from the imminent danger posed by Vega.

See Wright v. State, 402 So.2d 493, 497 (Fla.App.1981) (“An imminent danger is one

which cannot be guarded against by calling for the protection of the law”), citing

Black’s Law Dictionary 676 (5th Ed.1979). Moreover, the threat posed by Vega was

constant and unrelenting. Compare State v. Floyd, 9th Dist. Summit No. 25880,

2012-Ohio-3551 (defendant claimed he was under duress while fleeing from

someone trying to kill him, but exited from two vehicles to proceed on foot, did not

seek help from inside a nearby gas station, did not call the police even though he had

a cell phone, and upon stealing a truck, did not drive directly to the police station).

Under these facts, White’s belief that he was facing imminent, serious bodily injury

was well-grounded.

       {¶30} Furthermore, although the events that followed this second

confrontation with Vega are not necessarily relevant to our duress/serious-bodily-

injury analysis, they do lend credibility to White’s testimony to the risk he faced with

Vega—he described Vega as looking “like he was going to do something.” It turns out

that this “something” included forcing White off the road by ramming his vehicle

into White’s truck, and beating White to such an extent that he required




                                              12
                      OHIO FIRST DISTRICT COURT OF APPEALS



hospitalization.

       {¶31} Getting back to the elements of duress, while White hit Reide’s Subaru

twice when fleeing from Vega for the second time, Reide’s testimony was that both

impacts were minor and that he was not harmed. In other words, the harm White

sought to avoid—a physical altercation with Vega—was greater than that sought to be

prevented by the law defining the offenses charged—failing to exercise reasonable

control of a vehicle by hitting Reide’s vehicle and failing to stop after the accident.

       {¶32} Lastly, there is nothing in the record to support a contention that

White was at fault in bringing about the situation. The fact that he was driving on a

suspended license is immaterial to the events that unfolded that night. Therefore,

under virtually undisputed facts, I would find that White proved the affirmative

defense of duress to the crimes for which he was charged and is entitled to judgment

in his favor as a matter of law.

                                      Conclusion

       {¶33} White’s second assignment of error as recast is sustained and the
judgment of the trial court is reversed. The second assignment of error is dispositive

of this appeal.    His first assignment of error—challenging the sufficiency of the

evidence supporting his conviction for operating a vehicle without being in control of

it—is therefore moot, and we decline to address it.

                                                                     Judgment reversed.


BERGERON, J., concurs.
MOCK, P.J., concurs in part and dissents in part.

BERGERON, J., concurring.

       {¶34} I respectfully concur in the decision to reverse Mr. White’s conviction

but I cannot agree that we should discharge him. Before getting into why, I must



                                                13
                     OHIO FIRST DISTRICT COURT OF APPEALS


first express some bewilderment as to why the state prosecuted Mr. White for these

offenses. If you asked a reasonable person on the street what they would do after a

fender-bender in the middle of the night when the driver of the hit car became

enraged and tried to assault them, I suspect most people would profess to do exactly

what Mr. White did—drive away as quickly as possible. The state protests, asserting

that Mr. White could have called 911 or he should have just sat there awaiting help

because Mr. Vega possessed no apparent weapon. When someone is in the process

of attacking your car at night, the fact that you don’t immediately see a weapon

doesn’t mean that you should wait and see if your guess is wrong. Besides, it takes

little effort with a well-placed elbow to shatter a widow and commence a physical

assault. Subsequent developments here also validate Mr. White’s fears—as soon as

Mr. Vega caught up with him, he perpetrated an assault so vicious that it sent Mr.

White to the hospital. Surely, we don’t expect a reasonable person to sit there and

endure such a pummeling? Mr. White’s decision to flee strikes me as imminently

reasonable, and while he did scrape another vehicle in his effort to abscond, that

hardly seems to warrant a criminal prosecution.

       {¶35} Nevertheless, the reward for his effort to avoid a confrontation was a

prosecution that sparked a judicial odyssey.       Indeed, this case has consumed a

tremendous amount of judicial resources, including a trip to the Ohio Supreme Court

and now a splintered decision before this court. I agree with the lead opinion that

the trial court articulated an incorrect vision of duress, which necessitates reversal.

On judicial economy grounds, I am tempted to agree with the lead opinion’s

inclination to discharge Mr. White as well.

       {¶36} But I believe this implicates a broader question of the proper role of an

appellate court. When confronted with a legal error committed by the trial court that


                                              14
                      OHIO FIRST DISTRICT COURT OF APPEALS


necessitates reversal, we typically will remand for further proceedings to enable the

trial court to apply the standard we described to the facts at hand. See State v.

Kerrigan, 168 Ohio App.3d 455, 2006-Ohio-4279, 860 N.E.2d 816, ¶ 60 (2d Dist.)

(remanding after legal error in bench trial because the ultimate “determination is for

the finder of fact, not for this court”). We generally will not remove fact-finding from

the trial court unless the facts only admit one conclusion as a matter of law. These

points particularly ring true when we are considering an affirmative defense in a

criminal case because we cannot properly evaluate the weight of the evidence until

the trial court fully considers the evidence under the correct legal standard: “It would

be problematic for this court to undertake a review of the evidence under the correct

standard in the first instance, in that it would usurp the role of the trial court.”

(Emphasis sic.) State v. Meisel, 7th Dist. Monroe No. 10 MO 4, 2011-Ohio-6426, ¶ 42

(remanding after trial court erred at bench trial in applying the incorrect standard to

an affirmative defense); State v. Houston, 2018-Ohio-2788, 114 N.E.3d 1236, ¶ 38

(7th Dist.) (“[T]he case must be remanded for consideration of this affirmative

defense on its merits.”); State v. McGraw, 2d Dist. Montgomery No. 16202, 1997 WL

451359, *4 (Aug. 1, 1997) (remanding, when record was unclear as to court’s

disposition of affirmative defense, to “enter a judgment of acquittal if the court finds”

the defendant proved his affirmative defense, or if not, to “enter a judgment of

conviction”).

       {¶37} The dissent’s perspective convinces me that, regardless of how clear I

view the record on the question of duress, it is certainly not a matter free from

debate. And, in my view, the trial court should resolve that debate in the first

instance in its ultimate role as the fact-finder. I would accordingly remand for

further proceedings before the trial court (unfortunately prolonging the journey of


                                               15
                      OHIO FIRST DISTRICT COURT OF APPEALS


this case). See Meisel at ¶ 45 (“[B]ecause the trial court applied the incorrect legal

standard for self-defense, we reverse and remand this case for the trial court to apply

the non-deadly force elements of self-defense to the facts adduced at trial.”).

Therefore, I respectfully concur only with the decision to reverse.



MOCK, P.J., concurring in part and dissenting in part.

       {¶34} While I agree that the trial court should have extended its duress

analysis to the entire encounter, not just the first incident, I respectfully dissent from

the lead opinion because White did not prove that he was under duress during the

events involving Reide by a preponderance of the evidence.

       {¶35} The Ohio Supreme Court has clearly stated that the affirmative defense

of duress “is strictly and extremely limited in application and will probably be

effective in very rare [cases].” State v. Cross, 58 Ohio St.2d 482, 488, 391 N.E.2d 319

(1979). This is not one of those cases; particularly in light of the fact that White

never testified that he was in fear of “[i]mminent, immediate and impending death,

or serious bodily injury,” which is one of the essential elements of the defense of

duress. Id. at 487.

       {¶36} Further, the facts upon which White bases his defense of duress do not

support a finding that White had a sense of immediate and impending death or

serious bodily injury. Although Vega tried to enter White’s car, he was unsuccessful

because the car door was locked. Further, there was no evidence presented that Vega

was brandishing a gun or other hand-held weapon at this time. Finally, and most

importantly, White had a cell phone with him but chose not to call the police.

Instead, White would have us believe that his only alternative to avoid a physical

altercation with Vega was to hit Reide’s car and take off from the scene. It was not.


                                               16
                      OHIO FIRST DISTRICT COURT OF APPEALS


White was sitting in his locked car and could have safely called the police at this time.

See State v. Floyd, 9th Dist. Summit No. 25880, 2012-Ohio-3551, ¶ 13 (there was

insufficient evidence to warrant an instruction for the affirmative defense of duress

where defendant, among other things, could have used his cell phone to call the

police but did not do so).

       {¶37} Because White had another alternative available to him to avoid a

physical altercation with Vega, I would hold that White has not proven he was under

duress when he hit Reide’s car and left the scene of the accident. Additionally, White

had a motive, other than duress, for his criminal conduct—he was driving under a

suspended license, a crime for which he was eventually charged.

       {¶38} Given the foregoing, I would affirm White’s convictions.



Please note:
       The court has recorded its own entry this date.




                                               17
