State v. GallowayState v. Galloway
Hon. Sheila G. Farmer, P.J.
Hon. W. Scott Gwin, J.
Hon. Patricia A. Delaney, J.
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
ELIZABETH MATUNE
288 North Franklin St., Apt. C
Delaware, OH 43015
For Defendant-Appellant
DAVID BIRCH
2 West Winter
Delaware, OH 43015
{¶1} Defendant-appellant Brandon Galloway appeals his convictions entered by the Delaware Municipal Court on: one count of domestic violence in violation of
Facts & Procedural History
{¶2} 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.
{¶3} 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.
{¶5} 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.
{¶6} 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
{¶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:
{¶9} “I. THE TRIAL COURT ERRED IN RESTRICTING THE DEFENDANT‘S CROSS-EXAMINATION IN VIOLATION OF THE DEFENDANT‘S SIXTH AMENDMENT CONSTITUTIONAL RIGHTS.”
I.
{¶10} 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.
{¶11} The admission or exclusive of relevant evidence rests within the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Self-defense is an affirmative defense and the burden of going forward with evidence on
{¶12}
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 * * *.
{¶13} Where character evidence is permitted,
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.
{¶14} In State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240, the Ohio Supreme Court spoke to several aspects of the question of how
{¶15} Subsequent to the holding in Barnes, the Ohio Supreme Court reaffirmed 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, 2008-Ohio-3426, 892 N.E.2d 864. Additionally, that
{¶16} In this case, appellant sought to admit evidence of H.G.‘s propensity for violence by cross-examining H.G. and/or his wife regarding a recent domestic violence claim by H.G.‘s wife against him.
{¶17} 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
{¶18} 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,
{¶19} As to the second exception in Hale, the character of H.G. is not an essential element to a claim of self-defense as Barnes provided that
{¶20} Appellant also argues the testimony was admissible to demonstrate his state of mind at the time of the incident.
{¶22} Additionally, even if appellant had argued during trial that the evidence 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.
{¶23} As we have previously stated in State v. Richards, 5th Dist. Licking No. 2011-CA-00074, 2012-Ohio-1115 and State v. Snyder, 5th Dist. Tuscarawas No. 10AP060021, 2011-Ohio-3334, while appellant argues this evidence was relevant to show his state of mind and therefore relevant to his claim of self-defense, specific
{¶24} Further, appellant did not testify in this case and sought to introduce the evidence through cross-examination of H.G. and/or his wife. However, courts have not extended the state of mind exception to witnesses other than a defendant. State v. Evans, 8th Dist. Cuyahoga No. 79895, 2002-Ohio-2610; State v. Miles, 8th Dist. Cuyahoga No. 81480, 2003-Ohio-2651; State v. Mason, 6th Dist. Lucas Nos. L-02-1211, L-02-1189, 2003-Ohio-5974. As the Sixth District stated, “an alleged victim‘s purported violent nature is not an essential element of self-defense and therefore, witnesses other than the defendant have no admissible basis for testifying to specific instances of violent conduct.” State v. Gott, 6th Dist. Lucas No. L-11-1070, 2013-Ohio-4624.
{¶25} Lastly, even if the trial court erred in precluding cross-examination of the victim and his wife regarding the victim‘s propensity towards violence, we must review the exclusion of this evidence under the harmless error standard.
{¶27} 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, 2008-Ohio-3117.
By Gwin, J.,
Farmer, P.J., and
Delaney, J., concur