State v. Barnes

• Decision Date: 09 January 2002
• Docket Number: No. 00-1595 and 00-1682.,00-1595 and 00-1682.
• Citation: 2002 Ohio 68,759 NE 2d 1240
• Parties: THE STATE OF OHIO, APPELLANT, v. BARNES, APPELLEE.
• Court: Ohio Supreme Court

759 NE 2d 1240

2002 Ohio 68

THE STATE OF OHIO, APPELLANT, v. BARNES, APPELLEE.

Nos. 00-1595 and 00-1682.

Supreme Court of Ohio.

Submitted September 19, 2001.

Decided January 9, 2002.

[2002 Ohio 33]

Victor V. Vigliucci, Portage County Prosecuting Attorney, and Kelli K. Norman, Assistant Prosecuting Attorney, for appellant.

Dennis Day Lager, Portage County Public Defender, for appellee.

Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne Annos, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.

Betty D. Montgomery, Attorney General, and David M. Gormley, State Solicitor, urging reversal for amicus curiae Attorney General of Ohio.

COOK, J.

This cause presents two questions: first, whether a defendant who asserts self-defense may introduce evidence of specific instances of conduct by the victim to show that the victim was the initial aggressor, and second, whether the trial court committed plain error when it instructed the jury that felonious assault with a deadly weapon is a lesser included offense of attempted murder. We answer both questions in the negative.

I

While attending a party in Kent, Ohio, the appellee, Marcus Barnes, became involved in an argument with other partygoers. The argument escalated into a physical altercation involving Barnes, Christopher Wawrin, and Christopher DeAngelis. Barnes stabbed both men during the fracas; Wawrin died from his wound several days later.

The Portage County Grand Jury indicted Barnes on one count of murder for the Wawrin stabbing and one count of attempted murder for the attack on DeAngelis. Barnes asserted self-defense as to both charges and sought to introduce evidence of prior acts of violence committed by Wawrin. The trial court granted the state's motion in limine to exclude evidence of Wawrin's prior acts. While the court found that Barnes could introduce evidence about Wawrin's

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"propensity for violence," it ruled that Evid.R. 405(B) precluded the admission of a victim's prior specific acts. Barnes later proffered evidence of Wawrin's specific violent acts following the state's case-in-chief.

At the close of evidence, the trial court instructed the jury on the elements of murder and attempted murder as charged in counts one and two of the indictment. Without an objection from Barnes, the court also instructed the jury on involuntary manslaughter (as a lesser included offense of murder) and felonious assault with a deadly weapon (as a lesser included offense of attempted murder). As to the count charging Barnes with the attempted murder of DeAngelis, the court specifically instructed that the jury could find Barnes guilty of felonious assault if it found that the state had failed to prove the essential elements of attempted murder.

The jury found Barnes guilty of involuntary manslaughter (for killing Wawrin) and felonious assault (for stabbing DeAngelis). The trial court sentenced Barnes to consecutive prison terms of nine years for involuntary manslaughter and six years for felonious assault. Barnes appealed to the Eleventh District Court of Appeals, which reversed both convictions. The court of appeals found that the trial court erred by (1) excluding evidence of Wawrin's specific instances of violent conduct, (2) instructing the jury that felonious assault with a deadly weapon was a lesser included offense of attempted murder, and (3) sentencing Barnes to consecutive prison terms without making the factual findings required by R.C. 2929.14(E)(4). The Eleventh District certified its decision on the first two issues as being in conflict with decisions from several appellate districts.¹ The cause is now before this court upon our determination that a conflict exists (case No. 00-1682) and pursuant to the allowance of a discretionary appeal (case No. 00-1595).

II

In connection with its first proposition of law, the state argues that, under Evid.R. 404 and 405, a defendant who asserts self-defense cannot introduce

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specific instances of conduct by a victim to demonstrate that the victim was the initial aggressor.² Barnes disagrees, arguing that specific instances of a victim's conduct are admissible to demonstrate that the victim was the aggressor, even if the defendant lacked knowledge of the conduct at the time of the alleged criminal activity. We determine that specific instances of a victim's prior conduct are not admissible to prove that a victim was the initial aggressor, regardless of a defendant's knowledge.

It is well settled that "the trial court has broad discretion in the admission of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should not disturb the decision of the trial court." State v. Issa (2001), 93 Ohio St.3d 49, 64, 752 N.E.2d 904, 922. Therefore, we confine our inquiry to determining whether the trial court acted unreasonably, arbitrarily, or unconscionably in excluding evidence offered under Evid.R. 404 and 405. See Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 222, 24 O.O.3d 322, 323, 436 N.E.2d 1008, 1012.

Evid.R. 404 and 405 govern the introduction of character evidence. Evid.R. 404(A) specifies when character evidence is admissible and provides:

"Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions:

"* * *

"(2) Character of the 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, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable."

This blanket exception permitting Barnes to introduce evidence of Wawrin's character is subject to Evid.R. 405, which sets forth what form such evidence may take:

"(A) 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

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reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

"(B) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct."

It is undisputed that a defendant can introduce character evidence by reputation or opinion testimony under Evid.R. 405(A). See, e.g., State v. Baker (1993), 88 Ohio App.3d 204, 210-211, 623 N.E.2d 672, 676. But Evid.R. 405(B) is more narrowly drawn. Thus, the relevant inquiry in this case is whether a victim's character or character trait is an essential element of self-defense. If the proof or failure of proof of the victim's character would not be dispositive of an element of self-defense, then it is not an essential component of the defense and falls outside the limited scope of Evid.R. 405(B).

To establish self-defense, a defendant must prove the following elements: (1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate any duty to retreat or avoid the danger. State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus. Although a victim's violent propensity may be pertinent to proving that he acted in a way such that a defendant's responsive conduct satisfied the elements of self-defense, no element requires proof of the victim's character or character traits. A defendant may successfully assert self-defense without resort to proving any aspect of a victim's character. Therefore, 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.³ State v. Cuttiford (1994), 93 Ohio App.3d 546, 555, 639 N.E.2d 472, 478; State v. Baker, 88 Ohio App.3d at 210-211, 623 N.E.2d at 676; State v. Carlson (1986), 31 Ohio App.3d 72, 74, 31 OBR 112, 115, 508 N.E.2d 999, 1001.

We recognize that some courts in other jurisdictions have reached a contrary result. But we find more compelling the reasoning of the persuasive authority that agrees with the rationale that we employ today. Federal courts, interpreting the analogous Fed.R.Evid. 404 and 405, have held that specific instances of a victim's violent propensities are not admissible to prove whether the victim was

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the initial aggressor in a particular instance. See United States v. Keiser (C.A.9, 1995), 57 F.3d 847, 857 ("A defendant could * * * successfully assert a claim of self-defense against an avowed pacifist, so long as the jury agrees that the defendant reasonably believed unlawful force was about to be used against him. Thus, even though relevant, a victim's character is not an essential element of a defendant's defense."); see, also, United States v. Smith (C.A.7, 2000), 230 F.3d 300, 308; United States v. Bautista (C.A.10, 1998), 145 F.3d 1140, 1152, certiorari denied (1998), 525 U.S. 911, 119 S.Ct. 255, 142 L.Ed.2d 210; United States v. Piche (C.A.4, 1992), 981 F.2d 706, 713. State courts in other jurisdictions with analogous evidence rules also agree. See State v. Custodio (App.2001), 136 Idaho 197, 30 P.3d 975, 982 ("Proof of a victim's propensity for violence, standing alone, does not prove an element of a claim of self-defense. ...