State v. Moore, 92-L-092

• Decision Date: 03 June 1994
• Docket Number: No. 92-L-092,92-L-092
• Citation: 646 N.E.2d 470,97 Ohio App.3d 137
• Parties: The STATE of Ohio, Appellee, v. MOORE, Appellant. *
• Court: Ohio Court of Appeals

Page 137

97 Ohio App.3d 137

646 N.E.2d 470

The STATE of Ohio, Appellee, v. MOORE, Appellant. ^*

No. 92-L-092.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided June 3, 1994.

Steven C. LaTourette, Lake County Pros. Atty., Ariana E. Tarighati and Kimberly A. Mahaney, Asst. Pros. Attys., Painesville, for appellee.

Albert L. Purola, Willoughby, for appellant.

NADER, Judge.

This is an appeal from a judgment of the Lake County Court of Common Pleas entered upon the jury verdict finding appellant, Robert Moore, guilty of attempted murder in violation of R.C. 2903.02 and felonious assault in violation of R.C. 2903.11, together with firearm specifications. The case arises from an incident occurring on April 7, 1991, wherein appellant shot his neighbor, Patrick Dial, in the neck.

In August 1990, Patrick Dial and his wife purchased the home next to appellant's in the community of Mentor-on-the-Lake. At this time, appellant was seventy-three years of age, and had resided at the same residence with his wife for over forty years. Patrick Dial, age thirty-six, had to conduct certain repairs before he and his family could move into their new home.

During the period when these repairs were being conducted, appellant and Dial became engaged in a heated argument concerning an old motor head, and, specifically, upon whose yard the item belonged. The evidence shows that, during the course of this dispute, Dial issued verbal threats and made several aggressive motions toward appellant. Although Dial never crossed the property line, he was informed by appellant that, if he ever did so, appellant would shoot him. The two had no further contact until the date of the shooting.

On this date, the Dials invited Victoria LeVetsky and Huntis McFarren to their new home for a barbecue. Most of the day passed uneventfully. However, as evening approached, another confrontation between the neighbors took place, eventuating in Patrick Dial being shot in the neck and suffering paralysis of the face, and appellant and his wife experiencing heart attacks, requiring both to undergo bypass surgery.

As the accounts of this incident differ significantly, both will be summarized separately. First, however, it is necessary to briefly detail the scene of the incident. The driveways of the two properties run next to each other, separated only by a strip of dirt, grass, and shrubbery a few feet in width. On April 7, 1991, appellant's motorhome was parked on his driveway between the house and the street. Dial's van was parked on his own driveway and across from the motorhome. Thus, the van and motorhome were located several feet in distance from each other.

Patrick Dial and Victoria LeVetsky testified at trial as to the following events leading up to the shooting. They and Huntis McFarren were sitting beside the Dial home when appellant was heard yelling at Dial's children to get off his yard, threatening to shoot them. Dial and LeVetsky quickly went toward the front of the Dial property, between the motorhome and van. Dial yelled and swore at appellant, stating that if appellant had a problem with him, appellant should deal with him directly and leave the children alone. Appellant responded by saying, "Fuck you. I'll shoot you." Dial said, "Go get your gun." Appellant then turned and walked back to his house. While Dial was getting the children back into his yard, LeVetsky observed appellant through his livingroom window carrying a gun and walking toward the side door of the house where he had just entered. She attempted to warn Dial. Appellant came around the corner of the motorhome, and as Dial turned to face him, appellant raised the gun in the direction of Dial's face and shot. Dial fell against the van. Appellant stated, "How do you like that?"

Appellant testified as follows. He observed Dial's son, Adam, in his yard and, worried that Adam might hurt himself, walked outside his door and yelled for Adam to go back to his own yard. He heard Dial begin to swear and yell threats directed toward appellant. Appellant walked toward the front of his property, and as he passed the front of the motorhome he found Dial on his property, leaning against the front of the motorhome. Dial's teeth were bared and his fists were clenched, causing appellant to believe "He was goin' kill me." Appellant turned and walked back to the house as fast as he was able, went into the bedroom and retrieved a gun, and returned to the side door. Although he could not see Dial from this vantage point, appellant "believed he was on the fender of my car [motorhome], or close to it, because I could hear him." Wanting "to see what he was doing," appellant walked back to the front of the motorhome. At this point, appellant observed Dial on Dial's property by the van. LeVetsky was trying to pull Dial back to his own house, but when he saw appellant, Dial pushed her away and lunged at appellant. Experiencing chest pains and shortness of breath throughout this encounter, appellant felt an acute chest pain at this moment, staggered backwards, and the gun accidentally fired.

The evidence produced at trial showed that the distance from the place of the shooting and the side entrance of appellant's house was over twenty feet. The only blood located by the police was situated on Dial's property, next to the van. The bullet which passed through Dial's neck was never found. No one else observed the actual shooting.

On January 31, 1992, appellant was indicted on one count of attempted murder and one count of felonious assault, each count including a firearm specification. On February 3, 1992, appellant pled not guilty to the charges. A six-day jury trial was held from May 18, 1992 to May 26, 1992. Appellant asserted accident and self-defense at trial as alternative defenses. The defense also presented fourteen character witnesses unrelated to appellant who testified as to appellant's truthful and peaceful nature.

Following deliberations, appellant was found guilty of both counts and specifications. Judgment was entered upon the verdict by entry dated May 29, 1992. A motion for new trial was filed on June 5, 1992. An oral hearing on the motion was held on June 16, 1992. On June 17, 1992, the motion was overruled. Also on this date, the trial court entered its sentencing order. Count 2, felonious assault, was merged into Count 1 as an allied offense of similar import. On Count 1, appellant was sentenced to four to twenty-five years, to be preceded by three years of actual incarceration on the firearm specification. By order of this court, appellant's sentence was stayed pending appeal.

Appellant presents seven assignments of error:

"1. Robert Moore was denied a fair trial by the prosecutor's improper argument to the jury and the trial court's failure to give a curative instruction.

"2. Robert Moore was denied a fair trial by the final argument of the prosecuting attorney in three material ways: His uncorrected argument regarding Robert Moore's duty to retreat to his house; his statement that Mr. Moore and his lawyer 'manufactured' evidence and a defense; and his statement to the jury that they would be committing a crime if they considered certain things.

"3. The trial court erred to the prejudice of Robert Moore by not admitting defendant's exhibit 'I' into evidence.

"4. The trial court erred in refusing to allow witness Katie Moore to testify regarding the episode with Patrick Dial and threat made to her.

"5. The evidence is constitutionally insufficient to support the verdict in two ways: (1) the circumstantial evidence on the element of intent to kill (or knowingly cause physical harm) is not inconsistent with one or more reasonable theories of innocence, and (2) considering the evidence of self-defense, a rationale [sic ] juror could not have found guilt beyond a reasonable doubt, and accordingly the motions for judgment of acquittal under Criminal Rule 29 should have been granted.

"6. The trial court erred in overruling the motion for a new trial.

"7. The requirement in Ohio that the defendant carry the burden of persuasion on the affirmative defense of self-defense violates the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution."

In his first assignment of error, appellant argues that a reversal of the conviction is warranted on the basis of an improper closing argument by the prosecutor made to the jury during rebuttal.

In order to establish self-defense, a defendant must show: (1) that he was not at fault in giving rise to the affray, (2) that he 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 danger was the use of such force, and (3) that he 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. The trial court properly instructed the jury upon this defense. See 4 Ohio Jury Instructions (1993), Section 411.31.

The trial court, however, rejected the proposed "trouble maker" instruction requested by the prosecutor. This instruction reads:

"A defendant is not in a position to claim self-defense if he sought trouble and (armed with a dangerous weapon), he provoked a fight (or renewed a fight that had broken off) and did not attempt to avoid it or leave the scene of the trouble." 4 Ohio Jury Instructions (1993), Section 411.35(2) at 79.

Despite this ruling by the trial court, the prosecutor argued to the jury in closing argument that one loses the claim of self-defense when, after reaching a place of safety, that person returns to the scene of the confrontation with a gun.

In order to reverse a conviction due to prosecutorial misconduct during closing arguments, a defendant must establish that the remarks were improper and that they prejudicially affected the defendant's substantial rights. State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470...