State v. Smith

• Decision Date: 09 June 1983
• Citation: 10 Ohio App.3d 99,460 N.E.2d 693
• Parties: , 10 O.B.R. 122 The STATE of Ohio, Appellee, v. SMITH, Appellant.
• Court: Ohio Court of Appeals

Page 99

10 Ohio App.3d 99

460 N.E.2d 693, 10 O.B.R. 122

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

Court of Appeals of Ohio, Tenth District, Franklin County.

June 9, 1983.

Syllabus by the Court

In a trial for murder where the primary issue is self-defense, the trial court errs in restricting defendant from proving her knowledge of specific instances of violent conduct on the part of the deceased, other than acts of violence against defendant, where the deceased's character for violence was an essential element of self-defense. (Evid.R. 404[A] and 405, applied.)

Michael Miller, Pros. Atty., and Karen L. Martin, Columbus, for appellee.

Francisco A. Garabis, Columbus, for appellant.

McCORMAC, Judge.

Defendant, Rosa L. Smith, has appealed her conviction, by a jury, of murder, asserting the following assignments of error:

"I. A defendant is deprived of her right to due process of law guaranteed by Article I, Sections 10 and 16 of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution when a trial court erroneously excludes evidence, in a murder prosecution, of decedent's character showing that he was a violent person which was attempted to be introduced for the purpose of establishing self-defense, while the court imposes the burden of establishing self-defense upon the defendant.

"II. A court commits reversible error when it excludes character evidence of a decedent's trait of character relevant to self-defense as allowed by Rule 405, Ohio Rules of Evidence.

"III. The Court of Common Pleas committed reversible error in overruling defendant's Motion for Acquittal.

"IV. The finding by the jury that the defendant was guilty as charged of murder is against the manifest weight of the evidence.

"V. The closing argument of a prosecutor that includes testimony by the prosecutor and an expression of his opinion as to the guilt of the defendant violates a defendant's right to a fair trial and due process of law as guaranteed by the Ohio and United States Constitutions."

Defendant admittedly shot and killed Hammond Russell, Jr., a man with whom she had once lived and with whom she was well-acquainted. According to defendant's testimony, she did not intend to kill Russell, but only to frighten him into leaving her premises, and that she shot him in self-defense while in fear of her life.

The state's theory was that defendant murdered Russell because she was angry with him.

There was sufficient evidence presented by the state to present a jury question of murder.

To be guilty of murder, the defendant must purposely have caused the death of the deceased. R.C. 2903.02. A person acts purposely when it is her specific intention to cause a certain result. R.C. 2901.22(A). While defendant testified that she did not intend to cause the death of Russell but that she just shot in his direction to scare him, that self-serving statement is not binding upon the jury whose function it is to judge the credibility of a witness. From the facts of the death, the jury may reasonably have inferred a specific intent to kill. Her intent was a question of fact to be inferred from the surrounding circumstances and the state was entitled to all favorable inferences that might be drawn from the facts proved. State v Wallen (1969), 21 Ohio App.2d 27, 254 N.E.2d 716 . Defendant's actions in leaving the scene after the shooting while Russell was in a striken state may properly have been considered by the jury in determining whether there was an intent to kill. State v. Austin (1976), 52 Ohio App.2d 59, 368 N.E.2d 59 . An intent to kill may be presumed where the natural and probable consequences of a wrongful act are to produce death by use of a deadly weapon. State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517 . Hence, there was a jury issue of whether defendant acted purposely in shooting and killing Russell.

Defendant further contends that there was insufficient evidence to reject defendant's affirmative defense of self-defense and that defendant's motion for judgment of acquittal should have been sustained for this reason.

Defendant testified that she was afraid that Russell was going to kill or badly hurt her and that she shot him for that reason. The state asserts that there was physical evidence and circumstances contrary to that self-serving statement which created a jury issue of whether defendant acted reasonably in using deadly force.

The physical evidence showed that the only blood found in the residence was around the victim near the front door, including a smear of blood on the door itself. The bullet hit the left side of the victim and traveled horizontally through his body from left to right. There were no powder marks on Russell's clothing, indicating almost conclusively that the gun was discharged at a distance of at least two feet away from the victim. Defendant testified that Russell lunged at her over a table in an effort to grab for the gun, which she was holding in her left hand. Arguably, it appeared unlikely that the wound could have been to the deceased's left side since he probably would have had to turn away from defendant to expose his left side to her. Defendant's testimony as to where she was standing when she fired the shot was inconsistent with what she related in a statement to the police and arguably contrary to the position of a bullet hole in the ceiling, which appeared to have been caused by a shot fired from a different location.

There was also evidence from which the jury could have concluded that defendant did not act reasonably in using deadly force. There were no signs of a struggle in the house and no weapon was found in the living room or around Russell. The primary testimony of defendant about Russell's actions giving rise to her use of deadly force were verbal threats.

Considering all of these factors, a jury question was presented as to whether defendant had maintained her burden of proving self-defense by a preponderance of the evidence, as is required by R.C. 2901.05(A).

Defendant's third and fourth assignments of error are overruled.

In her first and second assignments of error, defendant contends that the trial court erroneously excluded admissible evidence pertaining to the establishment of self-defense.

The primary issue was self-defense. To establish self-defense, defendant had the burden by the preponderance of the evidence of showing that she had a bona fide belief that she was in imminent danger of death or great bodily harm. State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755 . The trial court permitted defendant to testify to the victim's general reputation in the community as a violent and aggressive person. He also permitted her to testify that the deceased had hit her in the mouth previously and that he carried a knife. The trial court excluded other evidence that defendant proffered to prove that she believed that she was in danger of great bodily harm when she shot Russell. Her proffered testimony was that Russell had told...