State v. Gilmore
| Citation | 503 N.E.2d 147,28 OBR 278,28 Ohio St.3d 190 |
| Decision Date | 26 December 1986 |
| Docket Number | No. 86-313,86-313 |
| Parties | , 28 O.B.R. 278 The STATE of Ohio, Appellant, v. GILMORE, Appellee. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
A party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked. (Evid.R. 103[A], applied, and State v. Hipkins [1982], 69 Ohio St.2d 80, 82, 430 N.E.2d 943 , modified.)
On November 30, 1984, appellee, Owen W. Gilmore, was arrested for selling cocaine to an undercover police officer of the Miamisburg Police Department. Appellee pleaded not guilty and the case was set to be tried without a jury to the Court of Common Pleas of Montgomery County. During opening statements at trial, counsel for appellee conceded that appellee sold cocaine to the officer on October 12, 1984 as charged but raised as an affirmative defense that appellee had been entrapped to participate in this particular transaction by an informant operating under state direction.
In presenting his defense, appellee testified that he had known the informant, Kelly Smith, for only a few weeks prior to October 12, 1984, the date when appellee sold cocaine to the officer. Appellee then attempted to testify as to statements made to him by Smith which allegedly improperly induced him to sell cocaine. On several occasions when appellee's counsel asked him if Smith urged him to sell cocaine or if Smith originated conversations about cocaine, the state objected on the basis that such testimony was inadmissible hearsay. The court sustained these objections. Although appellee's counsel argued that the testimony was relevant and admissible, appellee's counsel never proffered what appellee's responses to counsel's inquiries would have been.
Upon final consideration of the evidence adduced at trial, the court found that appellee had sold cocaine to the officer as charged. In consideration of the factors relevant to an entrapment defense, as set forth by this court in State v. Doran (1983), 5 Ohio St.3d 187, 449 N.E.2d 1295, the trial court ruled that appellee demonstrated some expert knowledge in the area of the contraband concerned, that appellee had ready access to the contraband, and that appellee had a willingness to become involved in criminal activity.
In light of these factors, the court stated that even " * * * [g]iving full credit to the testimony that Kelly Smith repeatedly exhorted * * * [appellee] to get involved, the most persistent and persuasive urging by Kelly Smith does not constitute inducement." The [503 N.E.2d 149] court found appellee guilty and sentenced him accordingly
On appeal, appellee argued, inter alia, that his testimony as to statements made to him by Kelly Smith was improperly excluded. The court of appeals agreed. Reasoning that the testimony was offered to show its effect on appellee's state of mind, and not for the truth of the matter asserted, the court concluded that the testimony was not inadmissible hearsay and ruled that such testimony should have been admitted. On this basis, the court reversed appellee's conviction and ordered the cause remanded for new trial.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Lee C. Falke, Pros. Atty., and Walter F. Ruf, Dayton, for appellant.
Ensley & Eilerman and Timothy N. O'Connell, Dayton, for appellee.
The issue presented in this case is whether a proffer of excluded evidence is required in every situation to preserve, for appellate review, an evidentiary ruling which is alleged to be in error. We answer in the negative.
Evid.R. 103 provides, in pertinent part:
Pursuant to the explicit provisions of this rule, a party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.
In accordance with this interpretation of Evid.R. 103, we modify our ruling in State v. Hipkins (1982), 69 Ohio St.2d 80, 430 N.E.2d 943 . In Hipkins, at 82, 430 N.E.2d 943, this court stated:
* * * "
While the better practice, in every instance, may be to proffer excluded evidence, under Evid.R. 103 a party is not required to proffer excluded evidence in order to preserve any alleged error for review if the substance of the excluded evidence is apparent to the court from the context within which questions were asked.
Appellant argues that appellee's failure to proffer the statements allegedly made to him by Smith rendered the record insufficient for the court of appeals to find that prejudicial error had occurred. To base error on evidence not expressly proffered, appellant argues, would require a reviewing court to speculate as to the merits of the alleged error. Under the specific facts presented in this case, we do not agree with appellant's argument.
Upon review of the record, we note the following testimony from appellee's direct examination during his case in chief:
The questions presented throughout appellee's above-noted testimony reveal that appellee was trying to establish that he, appellee, had been induced to sell cocaine. From the context of the questions asked, we find, in accordance with Evid.R. 103(A)(2), that the intended testimony was obvious: appellee would have stated that Smith repeatedly urged him to sell cocaine. Thus, the court of appeals did have a sufficient record upon which to base its finding that appellee's testimony had been improperly excluded.
Having so decided, the foregoing determination does not, however, dictate that appellee be granted a new trial. As noted, a party may not predicate error on the exclusion of evidence unless two conditions are met. While appellee in this case has fulfilled one of those conditions, he did not demonstrate that the exclusion of Smith's statements affected any substantial right of appellee. Moreover, we are convinced that even if the excluded testimony had been admitted, such evidence would not negate the overwhelming proof of defendant's guilt. See State v. Williams (1983), 6 Ohio St.3d 281, 452 N.E.2d 1323, paragraph six of the syllabus.
Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.
Judgment reversed.
I certainly agree with the majority's conclusion that the subject matter of the improperly excluded testimony (i.e., entrapment defense) was apparent from the context and nature of the questions posited by defense counsel during appellee's direct examination. Cf. Price v. Daugherty (1982), 5 Ohio App.3d 157, 450 N.E.2d 296; Bilikam v. Bilikam (1982), 2...
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...to the court by proffer or was apparent from the context within which questions were asked." (Emphasis sic.) State v. Gilmore (1986), 28 Ohio St.3d 190, 28 OBR 278, 503 N.E.2d 147, syllabus. Conway has not met either {¶ 114} The record is insufficient to support a finding that this evidence......
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