Case Information
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[Cite as
State v. Galloway
,
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 15 CAC 11 0089 BRANDON D. GALLOWAY :
:
Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Delaware
Municipal Court, Case No. 15CRB02218 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 15, 2016 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant ELIZABETH MATUNE DAVID BIRCH
288 North Franklin St., Apt. C 2 West Winter
Delaware, OH 43015 Delaware, OH 43015 *2
Gwin, J., Defendant-appellant Brandon Galloway appeals his convictions entered by
the Delaware Municipal Court on: one count of domestic violence in violation of R.C. 2929.25(A), a misdemeanor of the first degree; one count of assault in violation of R.C. 2903.13(A), a misdemeanor of the first degree; one count of aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree; and one count of disorderly conduct in violation of R.C. 2917.11, a misdemeanor of the fourth degree. Plaintiff-appellee is the State of Ohio.
Facts & Procedural History On August 13, 2015, a complaint was issued against appellant for causing physical harm to the victim, H.G., appellant’s father. A jury trial was held on October 1, 2015. At the beginning of the trial, the trial court held a hearing as to whether it
would admit into evidence specific acts of the victim. Counsel for appellant stated his intention in regard to those specific instances of conduct would be to question the victim and the victim’s wife, on cross-examination, as to the victim’s “propensity to be a violent and aggressive person.” Counsel for appellant stated he sought to introduce an aggravated menacing charge that H.G.’s wife filed against H.G. The trial court ruled counsel for appellant could not introduce H.G.’s prior conviction through cross- examination of H.G.’s wife and could not, on cross-examination of H.G. or his wife, inquire about H.G.’s violent history or propensity for violence. However, the trial court also found if appellant took the stand to assert self-defense, evidence of prior acts may be admissible. Appellant did not testify during the trial. *3 H.G. testified that on the morning of August 12, 2015, appellant grabbed
him by the head, broke his glasses, and said he was going to kill him. Further, that appellant dragged him into the bedroom and picked up a knife. H.G. then grabbed appellant’s wrist and threw him back on the bed. H.G. stated appellant let go of the knife when he saw the victim’s guns located next to the nightstand in the bedroom. H.G. testified appellant picked up a gun, pointed it at him, and said he was going to shoot him. H.G. told him to “go ahead” because he knew the gun was not loaded. H.G. stated he picked up the other gun, followed appellant to the door, and told appellant he was going to shoot him. H.G. testified that appellant then got scared, handed him the gun, took his bag, and left, saying he was going to come back and “gonna get you tonight.” The victim’s wife, who is also appellant’s mother, testified. She stated on the morning of August 12, 2015, she was asleep and was awoken by really loud yelling. She knew appellant “was probably upset with someone because that’s the only time there’s ever been yelling in our home.” She went out the window to her car and called 911. She did not see what happened on that morning, she just heard yelling. Based upon her testimony about “yelling,” counsel for appellant sought to cross-examine the victim’s wife about a recent domestic violence complaint she filed against H.G. Appellee objected. The trial court sustained appellee’s objection. Deputy Michael Inglish and Deputy Jason Kridler both testified at trial.
Appellant told Inglish that H.G. pulled the knife on him, grabbed him, and that his actions were in self-defense after H.G. attacked him. Appellant told Kridler that H.G. came at him, pushed him, and tried to punch him. Kridler testified he observed the bedroom in disarray, the blood on the sheets, the large knife on the nightstand, and the shotgun *4 between the wall and the dresser. Both deputies testified to H.G.’s minor injuries. Inglish stated they charged appellant rather than H.G. because of the statements obtained and the physical evidence.
{¶7} The jury found appellant guilty and, On October 1, 2015, the trial court entered a journal entry finding appellant guilty of domestic violence, assault, aggravated menacing, and disorderly conduct.
{¶8} Appellant appeals the October 1, 2015 judgment entry of the Delaware Municipal Court and assigns the following as error: “I. THE TRIAL COURT ERRED IN RESTRICTING THE DEFENDANT’S
CROSS-EXAMINATION IN VIOLATION OF THE DEFENDANT’S SIXTH AMENDMENT CONSTITUTIONAL RIGHTS.”
I. In his assignment of error, appellant contends the trial court abused its discretion by excluding testimony concerning H.G.’s violent character and propensity for violence in a case where the jury received a self-defense jury instruction and where the evidence was admissible to show that he did not create the situation giving rise to the incident, i.e., that he was not the aggressor in their alteration and that his state of mind was such that he was acting upon a reasonable belief that he needed to use force to defend himself. The admission or exclusive of relevant evidence rests within the sound
discretion of the trial court. State v. Sage ,
of a victim and provides as follows:
Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions: * * * (2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same * * *. Where character evidence is permitted, Evidence Rule 405 governs the
permissible methods for proving character and provides, in pertinent part:
Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Specific instances of conduct. In cases in which character or a trait of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. In State v. Barnes , the Ohio Supreme Court spoke to several aspects of the
question of how Evid.R. 404 and 405 function when, as here, a defendant seeks to
adduce evidence concerning the victim’s violent character in support of the defendant’s
claim for self-defense. 94 Ohio St.3d 21,
its decision in Barnes finding a victim’s character is not an essential element of a self-
defense claim. State v. Hale , 119 Ohio St.3d 118,
violence by cross-examining H.G. and/or his wife regarding a recent domestic violence claim by H.G.’s wife against him. The first method in Hale is inapplicable in this case because neither H.G.
nor his wife testified as character witnesses on behalf of the prosecution. Each testified
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as a fact witness as to what happened in the house that morning. While appellant argues
appellee opened the door when H.G.’s wife testified she knew appellant “was probably
upset with someone because that’s the only time there’s ever been yelling in our home,”
we find the testimony from H.G.’s wife about yelling dealt with her factual description of
the incident, not testimony about H.G.’s propensity or reputation for violence.
Further, unlike the facts in Hale where appellant sought to rebut the state’s
evidence of the victim’s character, in this case, appellant sought to open the door to elicit
specific acts evidence by first cross-examining H.G. and/or his wife about H.G.’s
character so appellant could further cross-examine them about specific instances of
conduct. However, pursuant to Hale , Evid.R. 405(A) does not provide for this method of
impeachment, as Hale provides specific incidents of conduct may be elicited on cross-
examination only if the witness testified as a character witness on direct examination.
State v. Hale ,
element to a claim of self-defense as Barnes provided that Evid.R. 405(B) precludes a
defendant from introducing specific instances of the victim’s conduct to prove that the
victim was the initial aggressor. State v. Barnes ,
state of mind at the time of the incident. *8 We first note that, when appellant attempted to introduce this evidence at
trial, he never stated that its purpose was to prove appellant’s state of mind in regards to
self-defense. Because appellant now provides on appeal a reasoning other than the one
he advanced at the trial court level, he has forfeited all but plain error regarding the issue.
State v. Tibbets ,
should be admissible to show appellant’s state of mind for self-defense, we still find the trial court did not abuse its discretion in not admitting the evidence. As we have previously stated in State v. Richards, 5th Dist. Licking No.
2011-CA-00074,
victim and his wife regarding the victim’s propensity towards violence, we must review the
exclusion of this evidence under the harmless error standard. Crim.R. 52(A) defines
harmless error as “any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” The test for determining whether the admission
of erroneous evidence is harmless requires the reviewing court to look at the whole
record, leaving out the disputed evidence, and then to decide whether there is other
substantial evidence to support the guilty verdict. State v. Riffle , 5th Dist. Muskingum No.
2007-0013,
evidence on that issue and the burden of proof by a preponderance of the evidence, is upon the accused. R.C. 2901.05(A). To establish self-defense in the use of non-deadly force, the accused must show that: (1) he was not at fault in creating the situation giving rise the altercation and (2) that he had reasonable grounds to believe and an honest belief, even though mistaken, that he was in imminent danger of bodily harm and his only means to protect himself from such danger was by the use of force not likely to cause the death or great bodily harm. State v. Batrez , 5th Dist. Richland No. 2007-CA-75, 2008- Ohio-3117. In this case, appellee presented two witnesses, H.G. and his wife, who were
at the home at the time of the incident. Appellee also presented the testimony of two
deputy sheriffs who arrived on the scene after H.G.’s wife called 911. The testimony of
the deputies was consistent with the testimony of H.G. and his wife. Appellee also
supported the testimony with photographs of the crime, photographs of the victim, the
weapon involved, and the audio recording of the 911 call. Though the trial court provided
jury instructions to the jury on self-defense, appellant did not take the stand to assert self-
defense or provide any evidence of self-defense. Rather, the deputies’ testified appellant
told them H.G. was the aggressor rather than appellant. Appellant did not present any
testimony as to why he was not at fault in creating the situation, why he reasonably
believed he needed to use force to defend himself, or that the force used was reasonable.
Accordingly, we hold any error committed was harmless beyond a reasonable doubt. See
State v. Batrez , 5th Dist. Richland No. 2007-CA-75,
judgment of the Delaware Municipal Court is affirmed.
By Gwin, J.,
Farmer, P.J., and
Delaney, J., concur