[Cite as State v. House, 2014-Ohio-138.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STATE OF OHIO                                  :
                                               :     Appellate Case No. 25457
        Plaintiff-Appellee                     :
                                               :     Trial Court Case No. 2011-CR-667
v.                                             :
                                               :
JAMES W. HOUSE, JR.                            :     (Criminal Appeal from
                                               :     (Common Pleas Court)
        Defendant-Appellant                    :
                                               :
                                              ...........
                                              OPINION
                                Rendered on the 17th day of January, 2014.
                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ROBERT A. BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, Ohio
45434-1021
      Attorney for Defendant-Appellant

                                           .............

HALL, J.,

        {¶ 1}     James House appeals from his conviction and sentence following a no-contest

plea to multiple charges, including murder, felonious assault, having a weapon under disability,
and firearm specifications.

       {¶ 2}    In his sole assignment of error, House claims the trial court erred in pretrial

rulings that precluded him from presenting evidence to support a plea of not guilty by reason of

insanity (NGRI).

       {¶ 3}    The record reflects that House sought to pursue his NGRI defense on the basis

that post-traumatic stress disorder (PTSD) prevented him from knowing the wrongfulness of his

actions. After being charged, he underwent competency and sanity evaluations. One evaluation

resulted in a finding that he was competent to stand trial and that he was sane at the time of the

crimes. A second evaluation resulted in a finding that he was sane when he committed the crimes

and that PTSD did not affect his behavior.

       {¶ 4}    The State filed a motion in limine to preclude House from presenting any

evidence about suffering from PTSD. (Doc. #33). The trial court sustained the motion. (Doc.

#36). Thereafter, the parties discussed the NGRI issue and PTSD again during an October 1,

2012 pretrial conference. Following considerable debate, the trial court again ruled that no

evidence about PTSD would be allowed at trial. It also precluded House from pursuing his NGRI

defense, reasoning that such a defense required supporting expert testimony, which did not exist.

(Tr. Vol. I at 5-26). After the trial court’s rulings, House waived his right to a jury trial. A bench

trial then commenced. On the morning of the second day of trial, House expressed a desire to

enter a no-contest plea to all charges. (Tr. Vol. II at 149). The trial court accepted the plea and

sentenced him accordingly. This appeal followed.

       {¶ 5}    House’s assignment of error asserts that “[t]he trial court erred when it ruled that

[he] could not present evidence to support his plea of NGRI due to his PTSD at his trial.” As

noted above, the trial court precluded such evidence when ruling on a motion in limine and
                                                                                                    3


reiterated its ruling during a pretrial conference.

       {¶ 6}     Having reviewed the record, we conclude that House’s no-contest plea waived

his ability to challenge the trial court’s evidentiary rulings. State v. Howell, 2d Dist. Montgomery

No. 19708, 2004-Ohio-2423, ¶ 24 (“Upon review, we find persuasive the State’s argument that

Howell’s no-contest plea waived his ability to appeal the trial court’s mid-trial evidentiary

ruling[.]”); State v. Benson, 6th Dist. Wood No. 90WD102, 1992 WL 66563, *4 (March 31,

1992) (“[W]e find no authority that permits a defendant to appeal an evidentiary ruling made in a

trial that was prematurely terminated by a no contest plea.”). The rationale for this concept is that

“[t]o allow a defendant to plead no contest immediately following an adverse evidentiary ruling

and then appeal that ruling, would be to permit a defendant to interrupt his trial at any time to

pass questions as to the admissibility of evidence on to the court of appeals in the hope of

prevailing and having the opportunity to start his trial over again.” Id. As this court recognized in

State v. Spahr, 47 Ohio App.2d 221, 223, 353 N.E.2d 624 (2d Dist. 1976), “[a]n evidential

ruling, prospective or otherwise, is never final until the trial is completed [.]” Therefore, House’s

mid-trial no-contest plea precludes a challenge to the trial court’s evidentiary rulings.

       {¶ 7}     In any event, we would find no error in the trial court’s ruling even if House had

preserved the evidentiary issues for appeal. Prior to trial, House obtained an expert opinion from

a psychologist who concluded that he suffered from PTSD but that the disorder had no impact on

his actions at the time of his crimes. (Tr. Vol. I at 11-12). Despite that opinion, House sought to

pursue his NGRI defense based on lay-witness testimony regarding his PTSD. (Id. at 10-12,

16-18). The trial court ruled that no evidence of PTSD would be allowed and that establishing an

NGRI defense required expert testimony. (Id. at 5-26).
[Cite as State v. House, 2014-Ohio-138.]
          {¶ 8}   On appeal, House contends the trial court’s ruling is contrary to State v.

Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490 (2d Dist.1988). In Reynolds, this court held that

lay testimony could support an NGRI defense, even in the face of conflicting expert testimony,

where the lay witness “testified out of her own personal knowledge that [the defendant] had been

off [of anti-psychotic] medication for three days prior to the commission of the offense, and that

he becomes wildly and aggressively irrational when he is off his medication.” Id. at 32.

          {¶ 9}   Upon review, we find Reynolds distinguishable. Unlike the lay witness in

Reynolds, House’s proposed lay witnesses, two out-of-state relatives, could not establish that he

was legally insane by linking his longstanding PTSD to his current offenses. Prior to trial,

defense counsel conceded that the lay witnesses could not testify about House’s actions or mental

state at the time of his crimes because they did not see him then. (Tr. Vol. I at 24-25). A

subsequent proffer by defense counsel did not identify any lay witness who could establish that

PTSD caused House to act as he did at the time of his crimes. (Id. at 36-42). Therefore, even if

House had PTSD, his proposed witnesses could not have established that he met the legal

requirements of an insanity defense. Under these circumstances, we would find no merit in

House’s assignment of error even if the trial court’s evidentiary rulings had been preserved for

appeal.

          {¶ 10} For the foregoing reasons, we overrule House’s assignment of error and affirm

the judgment of the Montgomery County Common Pleas Court.

                                           .............



FAIN, J., and WELBAUM, J., concur.

Copies mailed to:
                         5



Mathias H. Heck
Andrew T. French
Robert A. Brenner
Hon. Gregory F. Singer
