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Portage County reckless homicide conviction affirmed
TRACEY BLAIR
Legal News Reporter
Published: January 13, 2017
A Portage County judge did not err in failing to instruct a jury on self-defense in a murder case, the 11th District Court of Appeals recently ruled.
Christopher A. Kiehl was indicted on charges of purposeful murder and felony murder in September 2014.
After a trial two months later in Portage County Common Pleas Court, he was convicted of reckless homicide with a firearm specification.
The judge sentenced Kiehl to four years in prison — three years for the firearm specification and one year for reckless homicide.
According to appellate court records, the incident began around 8 pm. Sept. 21, 2014. Kiehl was a guest of Brittany Mulhollen at a bonfire.
Kiehl’s truck became stuck in a drainage ditch while he attempted to bring the vehicle to the fire so guests could sit in the truck bed.
Mulhollen’s fiancé, Kyle Fox, screamed and shouted obscenities at Kiehl because the spinning tires damaged the grass.
After Kiehl removed his truck from the ditch, he “peeled out” of the driveway. Fox jumped into the bed of the truck while it drove away.
Kiehl stepped out of the truck carrying a licensed firearm after hearing banging on his rear window. Fox hit Kiehl several times on the head, and Kiehl struck Fox with the .45-caliber weapon on the head.
The appellant then claimed the firearm accidentally discharged when he struck Fox a second time. Fox died instantly.
Fox’s cousin, who had been running after the truck, heard the gunshot, saw the victim lying on the ground and called 911.
Some witnesses claimed they overheard Kiehl calling himself a “murderer.” Kiehl told sheriff’s deputies he had been attacked.
Sheriff’s Detective Lt. Gregory Johnson testified that Kiehl told him he planned to “pistol whip” whoever was in the bed of his truck and that Fox had punched him two or three times first.
One of the EMTs at the scene said Kiehl did not appear intoxicated, and had marks above his left eye.
A forensic pathologist testified that a gunshot wound traveled through the left side of the victim’s neck through his left hip — traveling through several vital organs.
The pathologist said there were also blunt object injuries on the top of Fox’s head, the back of his left hand and his right arm, which were consistent with pistol whipping.
In addition, the gun was not against Fox’s skin when it discharged, he testified.
Detective Daniel Clevenger, a part-time detective, testified for the defendant that the gun was old and worn out, meaning very little pressure on the trigger was necessary for it to fire.
Kiehl testified that he was afraid of the homeowner, who had threatened to beat him for “turfing” the new lawn. Kiehl tried to throw money at the homeowner to pay for the damage.
On appeal, Kiehl argued the trial court should have instructed the jury on both accident and self-defense for purposeful murder.
Eleventh District Judge Timothy P. Cannon disagreed.
“…The defense’s theory of the case was that appellant did not purposely pull the trigger in an act of self-defense; rather, appellant’s testimony was that the firearm discharged accidentally while he was assaulting the victim,” Judge Cannon wrote in his 3-1 opinion. “… In light of appellant’s testimony, even if defense counsel had requested self-defense instruction on count one, the trial court would not have erred in denying such a request.”
Kiehl claimed the 11th District’s decision in State v. Imondi (11th Dist. Lake No. 2014-L-019) supports his position that he should not have been required to choose between instructions on accident or self-defense.
However, Judge Cannon noted that unlike Kiehl, the defendant in Imondi presented both defenses at trial.
“To the contrary, appellant specifically testified that he did not pull the trigger, he was not aware that the firearm had fallen apart, and he does not know how the firearm discharged,” Judge Cannon wrote.
In addition, the appellate court noted that the lack of a self-defense instruction was not prejudicial since the jury acquitted Kiehl of felony murder and purposeful murder.
Appellate Judge Diane V. Grendell concurred.
Eleventh District Judge Colleen O’Toole dissented, stating she would reverse and remand.
“Imondi is similar to this case,” Judge O’Toole wrote in her dissenting opinion. “… The record reveals Mr. Fox unlawfully entered appellant’s vehicle just moments before his death. Appellant possessed his weapon lawfully in self-defense. During the altercation, the evidence at trial also suggests the weapon fired accidentally. Appellant was not only entitled to an instruction on both accident and self-defense but was also entitled to a presumption of self-defense.”
The case is cited State v. Kiehl, 2016-Ohio-8543.