State v. Fulmer

• Decision Date: 12 March 2008
• Docket Number: No. 2007-0265.,2007-0265.
• Citation: 117 Ohio St.3d 319,883 N.E.2d 1052,2008 Ohio 936
• Parties: The STATE of Ohio, Appellant, v. FULMER, Appellee.
• Court: Ohio Supreme Court

883 N.E.2d 1052

117 Ohio St.3d 319

2008-Ohio-936

The STATE of Ohio, Appellant, v. FULMER, Appellee.

No. 2007-0265.

Supreme Court of Ohio.

Submitted January 8, 2008.

Decided March 12, 2008.

Charles E. Coulson, Lake County Prosecuting Attorney, and Karen A. Sheppert, Assistant Prosecuting Attorney, for appellant.

R. Paul LaPlante, Lake County Public Defender, and Mandy J. Gwirtz, Assistant Public Defender, for appellee.

O'CONNOR, J.

{¶ 1} On January 25, 2005, appellee, Andrew W. Fulmer, was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(2) and two counts of assault in violation of R.C. 2903.13(A). After trial to a jury, he was convicted on all charges.

{¶ 2} In his ensuing appeal, the court of appeals concluded that the trial court "overstepped the boundaries of its role by removing uncontested, relevant and probative evidence [about Fulmer's alleged medical condition] from the jury's consideration." State v. Fulmer, Lake App. No. 2005-L-137, 2006-Ohio-7015, 2006 WL 3833870, ¶ 30. It reversed the convictions and remanded the cause for a new trial. Id. at ¶ 34.

{¶ 3} We accepted the state's discretionary appeal, State v. Fulmer, 113 Ohio St.3d 1512, 2007-Ohio-2208, 866 N.E.2d 511, which asserts a single proposition of law: "When [defense] counsel elicits medical testimony regarding defendant's state of mind and makes a diminished capacity argument, the trial court is correct to instruct the jury that [it is] not to consider any evidence as to medical condition in determining that the defendant possesses the requisite mental state." For the reasons that follow, we agree with the state's proposition. Accordingly, we reverse the decision of the court of appeals.

RELEVANT BACKGROUND

{¶ 4} On October 23, 2004, police responded to a 9-1-1 call from Fulmer's former fiancée. She reported that after she ended her relationship with Fulmer, he told her he had taken "a bottle of pills" and that it "[d]oesn't matter anymore." Notably, although Fulmer initially said that he had taken "a bottle of pills," he also told her that he "threw up the pills." Thus, at the outset, there is a significant question whether Fulmer actually digested and metabolized any "pills" that he may have swallowed.

{¶ 5} To the extent that there was any evidence of actual ingestion of a drug, the evidence at trial established only that Fulmer had taken three aspirin for proper therapeutic purposes. Indeed, he specifically denied being suicidal or taking any other medication and told emergency medical personnel that "all he took all day was three aspirin" for preexisting back pain unrelated to his assault on the police or his ensuing arrest. There is no evidence in the record that warrants an inference, let alone a conclusion, that Fulmer took a bottle of aspirin or an overdose of any drug.

{¶ 6} The evidence at trial was uncontroverted that when police arrived to assist Fulmer, they did not find a man who appeared physically injured or weakened. Nor did they find a man who was lethargic or withdrawn. Rather, they were confronted by a man who was belligerent and uncooperative, displayed "a cocky demeanor," and used an "aggressive" or "authoritative" voice to demand that they leave the premises. When the police properly refused to accede to his demands due to their concerns for his well-being and the safety of the public, Fulmer attempted to leave the scene and forcefully pushed an officer to make his escape. A melee ensued.

{¶ 7} During the melee, Fulmer, who at the time of the incident was 39 years old, six feet, three inches tall, and weighed 250 pounds, punched one officer in the face, attempted to strike two others, and managed to secure an officer's flashlight and then strike him in the back of the head with it.

{¶ 8} Police used pepper spray in an attempt to subdue Fulmer, but Fulmer continued his efforts to strike at officers with his closed fists. Even after Fulmer was taken to the ground by the police, he kicked one of the officers in the chest and shoulders. Ultimately, all three officers sustained injuries during the altercation.

{¶ 9} The evidence also established that prior to and during the incident, Fulmer spoke at length on a cellular phone with his ex-fiancée and that he was coherent and could understand the officers' commands. There is no suggestion that his hearing was impaired.

{¶ 10} After his arrest, Fulmer did not complain of any symptom indicative of an aspirin overdose, such as acidosis or stomach pain, to emergency medical technicians or at the emergency department at the hospital where he was evaluated and treated. His medical reports reveal that his physical examination was negative for headache, nausea, abdominal pain, vomiting, "problems urinating," and visual disturbances, and toxicology results did not show elevated levels of acetaminophen or aspirin in his bloodstream.

{¶ 11} In addition to the foregoing evidence, the jury heard the testimony of the state's expert witness, Dr. William Bligh-Glover. Dr. Bligh-Glover, a forensic pathologist, was called to establish the potential lethality of a blunt-force blow by a flashlight to the head. On both cross-examination and redirect examination, however, Dr. Bligh-Glover also testified about the effects of an aspirin overdose. Because of the importance of that testimony to the legal questions posed by this appeal, it is necessary to set it forth in detail:

{¶ 12} "Q. [COUNSEL FOR FULMER] Okay. Doctor, now I don't know if you know a little about his case, but you have done autopsies on suicide persons?

{¶ 13} "A. [DR. BLIGH-GLOVER] Yes, I have.

{¶ 14} "Q. You know things, a lot of people you hear take aspirin, whatever, to kill themselves. Aspirin is capable of killing someone?

{¶ 15} "A. That's correct.

{¶ 16} "Q. If taken in large enough doses?

{¶ 17} "A. That's correct.

{¶ 18} "Q. I think you noted, when we spoke earlier, you indicated a variety of things that manifests themselves as a result of aspirin overdose I guess it would be called?

{¶ 19} "A. That is correct.

{¶ 20} "Q. One of those thing[s] would be kidneys shutting off as a result of overdosing of some sort?

{¶ 21} "A. Kidney is one of the main problems that you have with misuse or overdose. You can [have] necrosis of the tips of the renal papillary.

{¶ 22} "Q. Okay. What is the tips of the renal papillary?

{¶ 23} "* * * [Explanation by Dr. Bligh-Glover]

{¶ 24} "Q. I think you did mention hyponatremia[] is something that may result?

{¶ 25} "A. Well, that's one thing. Another thing that can result from aspirin overdose is a change in the body's PH. Aspirin, the scientific name is acetylsalicylic acid, aspirin is an acid drug and it can cause, I believe, metabolic derangement which forms metabolic acidosis which means the body's PH which should be neutral, goes too far in the acid range and that can cause difficulty.

{¶ 26} "Q. You mentioned hyponatremia?

{¶ 27} "A. Hyponatremia was brought up, I mentioned in terms of water intoxation [sic].

{¶ 28} "Q. Hyponatremia—

{¶ 29} "A. Not involving the aspirin overdose, okay. I think I did mention hyponatremia.

{¶ 30} "Q. Hyponatremia is something nobody wants. You would not want? When we spoke earlier you said—

{¶ 31} "A. I don't think anybody wants any metabolic derangement. So no I said you wouldn't want—

{¶ 32} "Q. The statement to me at least at the time, makes your brain cuckoo; is that correct?

{¶ 33} "A. Most metabolic derangement the brain looks like—for a proper brain to function, the brain should be fairly, essentially tight control, physiological state. With a derangement, what it means to me, be it a high temperature, be it too low a temperature; metabolic acidosis says the blood PH gets too low or too high and the brain doesn't work right.

{¶ 34} "Q. I think [you] indicated sometimes breathing will be difficult with—

{¶ 35} "A. That's one of the things that is the brain isn't working right. It doesn't control breathing—versus heart beat, versus blood pressure, the consciousness, level of the consciousness as well.

{¶ 36} "Q. These are all things that you as a toxicologist—hyponatremia can be a serious medical condition?

{¶ 37} "A. That's correct.

{¶ 38} "Q. One of them that can make your brain go cuckoo I think is the way you put it in laymen's terms earlier?

{¶ 39} "A. Yes."

{¶ 40} On redirect examination of Dr. Bligh-Glover, the state then elicited the following testimony:

{¶ 41} "Q. Now, you were asked a series of questions about consumption of aspirin. What was that condition that you called it?

{¶ 42} "A. We talked about many things. If you take too much aspirin you can—there is several medical conditions that can relate, A, would be metabolic acidosis, where the blood PH gets too acidic which would be too low. You can get kidney problems, other things can cause problems with aspirin, can lose hearing because it affects the eighth cranial nerve which lets you hear.

{¶ 43} "Q. Let's talk about those collectively. You mentioned acidosis, kidney problems, hearing problems?

{¶ 44} "A. Correct.

{¶ 45} "Q. Do you have an opinion as to whether the consumption of three aspirin tablets over-the-counter source, taken by a man that weighs approximately 250 pounds, would result in the conditions that you just described to this jury?

{¶ 46} "A. From an over-the-counter source, would that be the standard 325 milligrams of aspirin?

{¶ 47} "Q. Let's take the high one, 500?

{¶ 48} "A. Aspirin isn't a large over-the-counter dosage.

{¶ 49} "Q. So what my question is: Do you have an opinion as to whether a 250-pound man, takes three aspirin tablets of 500 milligrams of aspirin, whether any of those conditions would result?

{¶ 50} "A. Yes. I have [an] opinion.

{¶ 51} "Q. Is that opinion to a reasonable level of scientific certainty?

{¶ 52} "A. Yes, it is.

{¶ 53} "Q. What is your opinion?

{¶ 54} "A. Those toxic conditions would not result actually for a person of 250 pounds taking three...