State v. Otts, S.C. Court of Appeals, Filed June 17, 2018: The Best Offense is a Good Defense?

The best defense is a good offense.

Wait, wait. I mean, the best offense is a good defense?

In State v. Otts, decided by the SC Court of Appeals this week, the Court reversed a murder conviction from Saluda County where the prosecutor attempted to use defense of others to establish their case, and the trial court accommodated them by giving an incomplete defense of others jury instruction.

In case you were wondering, defense of others, self-defense, and SC’s stand your ground law are defenses, not theories used for prosecuting someone. If it sounds confusing, it is – that’s part of the basis for reversing the murder conviction:

“Thus, we find the offensive defense of others instruction requested here was incomplete, risked improper burden shifting, and was confusing for the jury.”

How is Defense of Others a Prosecution Theory?

Well, it’s not.

In this case, the defendant, Ott, was attempting to get his girlfriend to exit a car while she was determined to stay in the car and continue partying. The alleged victim, Burno, put Ott in a bear hug – when Burno let go, Ott punched him. Burno fell, hit his head on the pavement, and later died from his injuries.

The prosecutor’s theory of the case was that Burno was engaging in defense of others, therefore he was acting within the law, there was no “sufficient legal provocation,” and therefore Ott was guilty of murder and not voluntary manslaughter (which, based on the facts, is what he was likely guilty of).

It’s confusing. It likely confused the jurors. It’s a defense, and there are no cases where defense of others, self-defense, or SC’s stand your ground law has been used for anything other than a defense presented by the person who is accused of murder.

What is Defense of Others?

Defense of others is a “possible defense to a criminal charge; it is not an instruction for the State to use offensively.”

When it is relevant as a defense, the Court gives a jury instruction that should explain the elements of the defense, how it may be applied to the facts in a case, and what the burden of proof is – the Court not only erred by giving a defense of others instruction for the prosecution but also confused the jurors by not explaining the elements or how it would apply in Ott’s trial.

Defense of others is essentially self-defense – if a person who is being attacked would have the right to defend themselves, then any third-party also has the right to step in and defend them. In State v. Wiggins, the SC Supreme Court found that the use of deadly force is justified where:

  1. The person was without fault in bringing on the difficulty;
  2. The person actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger;
  3. A reasonable, prudent person would have entertained the same belief;
  4. The circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm; and
  5. The person had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.

Self-defense and defense of others, once raised by the defense, must be disproven by the prosecution beyond any reasonable doubt.

Courts should charge defense of others when the above elements are met, and the defendant requests the jury instruction – not as an offense to obtain a conviction.

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