
    Ellis, Appellee, v. The State of Ohio, Appellant.
    [Cite as Ellis v. State (1992), 64 Ohio St.3d 391.]
    (No. 91-1329
    Submitted May 12, 1992
    Decided August 19, 1992.)
    
      
      Wristen & Ucker Co., L.P.A., Ellen L. Wristen and David A. Ucker, for appellee.
    
      
      Lee I. Fisher, Attorney General, and Simon B. Karas; Michael Miller, Prosecuting Attorney, and William J. Owen, for appellant.
   Per Curiam.

In spite of the long and tortuous path this case has taken through the judicial system, our attention is now directed to a single issue: whether appellee had a bona fide claim of self-defense when he used nonlethal force to defend himself in response to an attack by a commercial landlord who allegedly struck appellee as he attempted to enter the landlord’s business premises in order to retrieve his stepson from an altercation within. For the reasons set forth below, we hold that appellee did not prove by a preponderance of the evidence that he was justified in entering the business premises, and therefore appellee could not assert a bona fide claim of self-defense.

As discussed by the courts below and in our previous treatment of this case, Walden v. State, supra, this action arises as a result of Ellis’s request to be declared a wrongfully imprisoned individual entitled to compensation pursuant to R.C. 2305.02 and 2743.48. Under both R.C. 2305.02 and former 2743.-48(A)(4), now 2743.48(A)(5), in order to secure a declaration of wrongful imprisonment, the petitioner must demonstrate that the “offense of which he was found guilty, including all lesser-included offenses, either was not committed by him or was not committed by any person.”

In Walden, we held that a person who was acquitted by reason of self-defense may seek compensation under these statutes, but that the judgment of acquittal was not to be given preclusive effect by the court. Id., 47 Ohio St.3d 47, 547 N.E.2d 962, paragraphs one and two of the syllabus. We also held that such person bears the burden of proving his innocence by a preponderance of the evidence, id. at paragraph three of the syllabus, and we affirmed the court of appeals’ decision remanding the case to the court of common pleas for a hearing on Ellis’s claim. This instant appeal arises from that hearing on remand.

As stated above, the trial court referred this matter upon remand to a referee who, after a hearing at which Ellis and Martin Wohlstein testified, entered his finding of facts and conclusions of law and recommended that judgment be rendered in favor of the state of Ohio. After receiving Ellis’s objections to the referee’s report, the court adopted the findings of fact and conclusions of law as its own, and entered judgment for the state.

The referee concluded that even if Ellis’s testimony was accepted in full and Wohlstein’s testimony was completely rejected, Ellis had not met his burden of proving by a preponderance of the evidence that he did not commit felonious assault or any lesser-included offense. Relying upon this court’s holding in State v. Wenger (1979), 58 Ohio St.2d 336, 339, 12 O.O.3d 309, 811, 390 N.E.2d 801, 803, that “[a] person who intervenes in a struggle and has no duty to do so, acts at his own peril if the person assisted was in the wrong,” and upon a notion that an aggressor has a duty to retreat, the referee concluded that Ellis could not avail himself of self-defense even if he intended merely to break up the altercation or rescue his stepson. The referee intimated that because the aggressor had the duty to retreat, one who seeks to aid an aggressor also has a duty to retreat and thus may not intervene.

The referee in his conclusions of law also made two statements that are pertinent to our review. First, the referee noted that “[t]he uncontroverted testimony is that Antonne Cudgel was the aggressor” in his confrontation with Jeff Wohlstein. Second, the referee found that “ * * * Mr. Ellis had no legitimate right to enter into the business premises[,] and if Mr. Wohlstein attempted to prohibit his entrance or strike him as he entered in order to keep Mr. Ellis from joining the affray, it must still be concluded that Mr. Ellis was not legally justified in striking back.”

The court of appeals rejected the referee’s analysis and held that the referee’s conclusions and recommendation were not supported by the findings of fact. In particular, the court found that the referee failed to resolve factual issues that were necessary to support the conclusion that Ellis did not have a legitimate right to enter the business and that Wohlstein had the right to use force to keep Ellis from entering the business. The court also faulted the referee’s reliance upon an aggressor’s duty to retreat when, under plaintiff’s version of the facts, lethal force was not involved.

Although we agree with the court of appeals that the referee’s report and recommendation are factually “thin,” we find the chief problem with the referee’s analysis to be his application of the law in Wenger. While it may be true, as found by the referee, that Ellis entered the Wohlstein premises to retrieve Cudgel from the affray and thus that Ellis sought to “aid” an aggressor, that fact alone would not deprive Ellis of a right to self-defense. Merely attempting to stop an altercation, without the use of force against the aggressor’s victim, is not the type of activity this court sought to address in Wenger.

Wenger stands for the simple proposition that one who uses force to intervene in a conflict on behalf of another may not invoke a privilege of self-defense if the person defended was the aggressor in the conflict. 58 Ohio St.2d at 339-340, 12 O.O.3d at 311, 390 N.E.2d at 803. Such use of force involves more than merely removing the aggressor from a conflict; the term normally denotes force directed against the aggressor’s victim in the defense of the aggressor. Accord Prosser & Keeton, Law of Torts (5 Ed.1984) 129-131, Section 20. Here, Ellis’s action was not directed against the victim of the aggression, but rather against a third party, Martin Wohlstein. The referee, by failing to find that Ellis used force on behalf of Cudgel and against Jeff Wohlstein, erred in concluding that Ellis was coming to the aid of an aggressor and was thus without a privilege of self-defense.

Although we agree with the court of appeals that the referee’s analysis was flawed, we nevertheless conclude that the trial court’s judgment for the state of Ohio was correct. We reiterate that the claimant in a wrongful imprisonment action against the state has the burden of demonstrating his innocence by a preponderance of the evidence. In this context, that proposition required Ellis to bear the burden of proving that he had a valid claim to self-defense. To discharge that burden, it was not sufficient for Ellis to prove merely that he was defending himself from attack. In order to take into account a landlord’s privilege to use reasonable, non-lethal force to defend his business from trespassers, In re Sekulich (1981), 65 Ohio St.2d 13, 16, 19 O.O.3d 192, 194, 417 N.E.2d 1014, 1016, Ellis also needed to prove that he was justified in entering the business premises, and that the landlord was acting without justification when the landlord used force against him. Thus, Ellis bore the burden of proving that he was entitled to enter the business, either as an invitee or under some other privilege. This he did not do.

The referee’s statement that Ellis “had no legitimate right to enter into the business premises,” although appearing in the “conclusions of law” portion of the report and recommendation, by necessity implies that the business was not open to the public. It thus appears that, at least on this issue, the referee weighed the testimony presented and concluded that Ellis failed to demonstrate by a preponderance of the evidence that he was privileged to enter the Wohlstein business at the time of the altercation. We find sufficient evidence in the record to support the referee’s conclusion.

Ellis advances no other privilege, such as the defense of a non-aggressor, to justify his entrance into the business premises, and thus we can only conclude that Ellis entered the Wohlstein business as a trespasser. A trespasser is not entitled to assert self-defense to justify an assault upon another who legitimately used non-lethal force to exclude him from the property. Thus, we conclude that because Ellis failed to show that he was justified in entering the business property, Ellis could not justify his assault upon Martin Wohlstein on the basis of self-defense. Accordingly, we reverse the judgment of the court of appeals and enter judgment for the state of Ohio.

Judgment reversed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur. 
      
      . Even if Ellis had invoked the defense of Cudgel as a justification for his entrance upon the business property, it is uncontroverted that Cudgel was the aggressor and not the victim in his altercation with Jeff Wohlstein. As we stated above, Ellis bore the burden of proving not only that he acted in self-defense, but also that he was justified in entering the business property of another. Only by proving that Cudgel was not the aggressor could Ellis justify his trespass.
     