Judge won’t allow man accused of killing Dayton teens to use Ohio’s new stand your ground law as defense

Credit: Montgomery County Jail

Credit: Montgomery County Jail

A judge has denied a request by a Dayton man who wanted to use Ohio’s new stand your ground law as a defense during a murder trial set to start in June.

Victor Santana, 65, is accused of killing 17-year-old Devin Henderson and Javier Harrison of Dayton and firing at a third teenager who survived in August 2019. He is charged with four counts of murder, five counts of felonious assault and one count of attempt to commit murder.

Montgomery County Prosecutor Mat Heck Jr. said the teens were shot and killed while trespassing in a vehicle in a detached garage they thought was abandoned at 848 Conners St., where they went to smoke marijuana. The garage is about 42 feet from the house.

Santana’s trial is scheduled to begin June 7. He remains in Montgomery County Jail on $2 million bond.

His defense attorney Michael Pentecost filed a proposed jury instruction with the court asking that a judge tell the jury about self-defense in accordance with the recent stand your ground law.

The new law removed the duty to retreat as previously required before using self-defense.

The defense said in the court document that Santana will claim at trial that he acted in self-defense.

Prosecutors responded to the defense’s request in their own court document, saying the new law is not retroactive. They said that the legislature did not intend for the law to be applied to cases before April 6, 2021, when the new law took effect, and retroactively applying the law would go against the Ohio Constitution. They also cited courts in other states that underwent similar changes and said they found stand your ground laws are not retroactive.

Montgomery County Judge Timothy O’Connell denied the defense request this week.

“The court finds the Stand Your Ground law does not apply to this case,” the judge said in his ruling. “This case revolves around an incident that occurred in August of 2019. The court will not apply the Stand Your Ground law retroactively.”

University of Dayton Law Professor Thomas Hagel said the decision can play a significant role during the trial, but the defense would still have had to put on some evidence that Santana was acting in self-defense to use it.

“If he wasn’t acting in self-defense, then obviously the stand your ground law is irrelevant,” he said.

“To use deadly force, he has to put on some evidence that he was threatened with serious bodily harm or death when he acted.”

Hagel said the standard rule is that new laws passed are prospective, meaning unless the legislature makes it clear they want it to be retroactive — it’s not.

If the case goes to trial next month, it will happen after a number of continuances issued because of the coronavirus pandemic. The defense said that Santana is 65-years-old, has health concerns and shouldn’t have to risk his own safety for a trial when he was already in jail.

Santana was indicted in November 2019. The case was originally set for trial in June 2020 and then again in September 2020. The case was again set to go to trial in January but was continued after the defense cited COVID-19 as the reason why the trial should not take place.

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