[Cite as State v. Galloway, 2016-Ohio-7767.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Sheila G. Farmer, P.J.
                                               :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 15 CAC 11 0089
BRANDON D. GALLOWAY                            :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Delaware
                                                   Municipal Court, Case No. 15CRB02218



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            November 15, 2016


APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

ELIZABETH MATUNE                                   DAVID BIRCH
288 North Franklin St., Apt. C                     2 West Winter
Delaware, OH 43015                                 Delaware, OH 43015
Delaware County, Case No. 15CAA 0089                                                       2

Gwin, J.,

        {¶1}   Defendant-appellant Brandon Galloway appeals his convictions entered by

the Delaware Municipal Court on: one count of domestic violence in violation of R.C.

2929.25(A), a misdemeanor of the first degree; one count of assault in violation of R.C.

2903.13(A), a misdemeanor of the first degree; one count of aggravated menacing in

violation of R.C. 2903.21(A), a misdemeanor of the first degree; and one count of

disorderly conduct in violation of R.C. 2917.11, a misdemeanor of the fourth degree.

Plaintiff-appellee is the State of Ohio.

                                    Facts & Procedural History

        {¶2}   On August 13, 2015, a complaint was issued against appellant for causing

physical harm to the victim, H.G., appellant’s father. A jury trial was held on October 1,

2015.

        {¶3}   At the beginning of the trial, the trial court held a hearing as to whether it

would admit into evidence specific acts of the victim. Counsel for appellant stated his

intention in regard to those specific instances of conduct would be to question the victim

and the victim’s wife, on cross-examination, as to the victim’s “propensity to be a violent

and aggressive person.”       Counsel for appellant stated he sought to introduce an

aggravated menacing charge that H.G.’s wife filed against H.G. The trial court ruled

counsel for appellant could not introduce H.G.’s prior conviction through cross-

examination of H.G.’s wife and could not, on cross-examination of H.G. or his wife, inquire

about H.G.’s violent history or propensity for violence. However, the trial court also found

if appellant took the stand to assert self-defense, evidence of prior acts may be

admissible. Appellant did not testify during the trial.
Delaware County, Case No. 15CAA 0089                                                     3


       {¶4}   H.G. testified that on the morning of August 12, 2015, appellant grabbed

him by the head, broke his glasses, and said he was going to kill him. Further, that

appellant dragged him into the bedroom and picked up a knife. H.G. then grabbed

appellant’s wrist and threw him back on the bed. H.G. stated appellant let go of the knife

when he saw the victim’s guns located next to the nightstand in the bedroom. H.G.

testified appellant picked up a gun, pointed it at him, and said he was going to shoot him.

H.G. told him to “go ahead” because he knew the gun was not loaded. H.G. stated he

picked up the other gun, followed appellant to the door, and told appellant he was going

to shoot him. H.G. testified that appellant then got scared, handed him the gun, took his

bag, and left, saying he was going to come back and “gonna get you tonight.”

       {¶5}   The victim’s wife, who is also appellant’s mother, testified. She stated on

the morning of August 12, 2015, she was asleep and was awoken by really loud yelling.

She knew appellant “was probably upset with someone because that’s the only time

there’s ever been yelling in our home.” She went out the window to her car and called

911. She did not see what happened on that morning, she just heard yelling. Based

upon her testimony about “yelling,” counsel for appellant sought to cross-examine the

victim’s wife about a recent domestic violence complaint she filed against H.G. Appellee

objected. The trial court sustained appellee’s objection.

       {¶6}   Deputy Michael Inglish and Deputy Jason Kridler both testified at trial.

Appellant told Inglish that H.G. pulled the knife on him, grabbed him, and that his actions

were in self-defense after H.G. attacked him. Appellant told Kridler that H.G. came at

him, pushed him, and tried to punch him. Kridler testified he observed the bedroom in

disarray, the blood on the sheets, the large knife on the nightstand, and the shotgun
Delaware County, Case No. 15CAA 0089                                                      4


between the wall and the dresser. Both deputies testified to H.G.’s minor injuries. Inglish

stated they charged appellant rather than H.G. because of the statements obtained and

the physical evidence.

       {¶7}   The jury found appellant guilty and, On October 1, 2015, the trial court

entered a journal entry finding appellant guilty of domestic violence, assault, aggravated

menacing, and disorderly conduct.

       {¶8}   Appellant appeals the October 1, 2015 judgment entry of the Delaware

Municipal Court and assigns the following as error:

       {¶9}   “I. THE TRIAL COURT ERRED IN RESTRICTING THE DEFENDANT’S

CROSS-EXAMINATION IN VIOLATION OF THE DEFENDANT’S SIXTH AMENDMENT

CONSTITUTIONAL RIGHTS.”

                                                I.

       {¶10} In his assignment of error, appellant contends the trial court abused its

discretion by excluding testimony concerning H.G.’s violent character and propensity for

violence in a case where the jury received a self-defense jury instruction and where the

evidence was admissible to show that he did not create the situation giving rise to the

incident, i.e., that he was not the aggressor in their alteration and that his state of mind

was such that he was acting upon a reasonable belief that he needed to use force to

defend himself.

       {¶11} The admission or exclusive of relevant evidence rests within the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987).

Self-defense is an affirmative defense and the burden of going forward with evidence on
Delaware County, Case No. 15CAA 0089                                                   5


that issue and the burden of proof by a preponderance of the evidence, is upon the

accused. R.C. 2901.05(A).

      {¶12} Evid.R. 404(A)(2) governs the admission of evidence concerning character

of a victim and provides as follows:

      Character evidence generally. Evidence of a person’s character or a trait

      of character is not admissible for the purpose of proving action in conformity

      therewith on a particular occasion, subject to the following exceptions: * * *

      (2) Character of victim. Evidence of a pertinent trait of character of the

      victim of the crime offered by an accused, or by the prosecution to rebut the

      same * * *.

      {¶13} Where character evidence is permitted, Evidence Rule 405 governs the

permissible methods for proving character and provides, in pertinent part:

      Reputation or opinion. In all cases in which evidence of character or a trait

      of character of a person is admissible, proof may be made by testimony as

      to reputation or testimony in the form of an opinion. On cross-examination,

      inquiry is allowable into relevant specific instances of conduct.

      Specific instances of conduct. In cases in which character or a trait of a

      person is an essential element of a charge, claim, or defense, proof may

      also be made of specific instances of his conduct.

      {¶14} In State v. Barnes, the Ohio Supreme Court spoke to several aspects of the

question of how Evid.R. 404 and 405 function when, as here, a defendant seeks to

adduce evidence concerning the victim’s violent character in support of the defendant’s

claim for self-defense. 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. The Ohio
Delaware County, Case No. 15CAA 0089                                                         6


Supreme Court held that specific instances of a victim’s prior conduct are not admissible

to prove that a victim was the initial aggressor, regardless of a defendant’s knowledge.

Id. The Court reasoned that while a victim’s “violent propensity may be pertinent to

proving that he acted in a way in such that a defendant’s responsive conduct satisfied the

elements of self-defense, no element requires proof of the victim’s character or character

traits.” Id. Since a defendant can “successfully assert self-defense without resort to

proving any aspect of the victim’s character,” Evid.R. 405(B) “precludes a defendant from

introducing specific instances of the victim’s conduct to prove that the victim was the initial

aggressor.” Id.

       {¶15} Subsequent to the holding in Barnes, the Ohio Supreme Court reaffirmed

its decision in Barnes finding a victim’s character is not an essential element of a self-

defense claim. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864.

Additionally, that Evid.R. 405(A) does not allow a party to use extrinsic evidence of

specific instances of a person’s character to rebut the other party’s evidence regarding

that person’s character. Id. The Court further held that Evid.R. 405 authorizes the use

of specific instances of conduct in two situations: (1) on cross examination of other party’s

character witness and (2) in cases where character or a trait of character of a person is

an essential element of a charge, claim, or defense. Id.

       {¶16} In this case, appellant sought to admit evidence of H.G.’s propensity for

violence by cross-examining H.G. and/or his wife regarding a recent domestic violence

claim by H.G.’s wife against him.

       {¶17} The first method in Hale is inapplicable in this case because neither H.G.

nor his wife testified as character witnesses on behalf of the prosecution. Each testified
Delaware County, Case No. 15CAA 0089                                                       7


as a fact witness as to what happened in the house that morning. While appellant argues

appellee opened the door when H.G.’s wife testified she knew appellant “was probably

upset with someone because that’s the only time there’s ever been yelling in our home,”

we find the testimony from H.G.’s wife about yelling dealt with her factual description of

the incident, not testimony about H.G.’s propensity or reputation for violence.

       {¶18} Further, unlike the facts in Hale where appellant sought to rebut the state’s

evidence of the victim’s character, in this case, appellant sought to open the door to elicit

specific acts evidence by first cross-examining H.G. and/or his wife about H.G.’s

character so appellant could further cross-examine them about specific instances of

conduct. However, pursuant to Hale, Evid.R. 405(A) does not provide for this method of

impeachment, as Hale provides specific incidents of conduct may be elicited on cross-

examination only if the witness testified as a character witness on direct examination.

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864. Neither H.G. nor

his wife testified as to the character or character trait of any other individual on direct

examination.

       {¶19} As to the second exception in Hale, the character of H.G. is not an essential

element to a claim of self-defense as Barnes provided that Evid.R. 405(B) precludes a

defendant from introducing specific instances of the victim’s conduct to prove that the

victim was the initial aggressor. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759

N.E.2d 1240.

       {¶20} Appellant also argues the testimony was admissible to demonstrate his

state of mind at the time of the incident.
Delaware County, Case No. 15CAA 0089                                                         8


       {¶21} We first note that, when appellant attempted to introduce this evidence at

trial, he never stated that its purpose was to prove appellant’s state of mind in regards to

self-defense. Because appellant now provides on appeal a reasoning other than the one

he advanced at the trial court level, he has forfeited all but plain error regarding the issue.

State v. Tibbets, 92 Ohio St.3d 146, 2001-Ohio-132, 749 N.E.2d 226; State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864. The rule places several limitations on

a reviewing court’s determination to correct an error despite the absence of a timely

objection at trial: “(1) there must be an error, i.e., a deviation from a legal rule, (2) the

error must be plain, that is, an error that constitutes an obvious defect in the trial

proceedings, and (3) the error must have affected substantial rights such that the trial

court’s error must have affected the outcome of the trial.” State v. Dunn, 5th Dist. Stark

No. 2008-CA-00137, 2009-Ohio-1688.            The decision to correct a plain error is

discretionary and should be made “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978). Upon our review of the record, we find no plain

error occurred.

       {¶22} Additionally, even if appellant had argued during trial that the evidence

should be admissible to show appellant’s state of mind for self-defense, we still find the

trial court did not abuse its discretion in not admitting the evidence.

       {¶23} As we have previously stated in State v. Richards, 5th Dist. Licking No.

2011-CA-00074, 2012-Ohio-1115 and State v. Snyder, 5th Dist. Tuscarawas No.

10AP060021, 2011-Ohio-3334, while appellant argues this evidence was relevant to

show his state of mind and therefore relevant to his claim of self-defense, specific
Delaware County, Case No. 15CAA 0089                                                       9


instances of conduct are only permitted when the character trait of a person is an essential

element of the claim or defense. “The victim’s propensity for violence was not an essential

element of appellant’s claim that he acted out of a fit of passion or rage, and her

propensity for violence is not an essential element of the defense of self-defense.” Id.

       {¶24} Further, appellant did not testify in this case and sought to introduce the

evidence through cross-examination of H.G. and/or his wife. However, courts have not

extended the state of mind exception to witnesses other than a defendant. State v. Evans,

8th Dist. Cuyahoga No. 79895, 2002-Ohio-2610; State v. Miles, 8th Dist. Cuyahoga No.

81480, 2003-Ohio-2651; State v. Mason, 6th Dist. Lucas Nos. L-02-1211, L-02-1189,

2003-Ohio-5974. As the Sixth District stated, “an alleged victim’s purported violent nature

is not an essential element of self-defense and therefore, witnesses other than the

defendant have no admissible basis for testifying to specific instances of violent conduct.”

State v. Gott, 6th Dist. Lucas No. L-11-1070, 2013-Ohio-4624.

       {¶25} Lastly, even if the trial court erred in precluding cross-examination of the

victim and his wife regarding the victim’s propensity towards violence, we must review the

exclusion of this evidence under the harmless error standard. Crim.R. 52(A) defines

harmless error as “any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” The test for determining whether the admission

of erroneous evidence is harmless requires the reviewing court to look at the whole

record, leaving out the disputed evidence, and then to decide whether there is other

substantial evidence to support the guilty verdict. State v. Riffle, 5th Dist. Muskingum No.

2007-0013, 2007-Ohio-5299.
Delaware County, Case No. 15CAA 0089                                                        10


       {¶26} Self-defense is an affirmative defense and the burden of going forward with

evidence on that issue and the burden of proof by a preponderance of the evidence, is

upon the accused. R.C. 2901.05(A). To establish self-defense in the use of non-deadly

force, the accused must show that: (1) he was not at fault in creating the situation giving

rise the altercation and (2) that he had reasonable grounds to believe and an honest

belief, even though mistaken, that he was in imminent danger of bodily harm and his only

means to protect himself from such danger was by the use of force not likely to cause the

death or great bodily harm. State v. Batrez, 5th Dist. Richland No. 2007-CA-75, 2008-

Ohio-3117.

       {¶27} In this case, appellee presented two witnesses, H.G. and his wife, who were

at the home at the time of the incident. Appellee also presented the testimony of two

deputy sheriffs who arrived on the scene after H.G.’s wife called 911. The testimony of

the deputies was consistent with the testimony of H.G. and his wife. Appellee also

supported the testimony with photographs of the crime, photographs of the victim, the

weapon involved, and the audio recording of the 911 call. Though the trial court provided

jury instructions to the jury on self-defense, appellant did not take the stand to assert self-

defense or provide any evidence of self-defense. Rather, the deputies’ testified appellant

told them H.G. was the aggressor rather than appellant. Appellant did not present any

testimony as to why he was not at fault in creating the situation, why he reasonably

believed he needed to use force to defend himself, or that the force used was reasonable.

Accordingly, we hold any error committed was harmless beyond a reasonable doubt. See

State v. Batrez, 5th Dist. Richland No. 2007-CA-75, 2008-Ohio-3117.
Delaware County, Case No. 15CAA 0089                                              11


      {¶28} Based on the foregoing, appellant’s assignment of error is overruled. The

judgment of the Delaware Municipal Court is affirmed.


By Gwin, J.,

Farmer, P.J., and

Delaney, J., concur
