[Cite as State v. Saunders, 2016-Ohio-5284.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.     14CA0125-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DAVID SAUNDERS                                       COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   13-CR-0734

                                 DECISION AND JOURNAL ENTRY

Dated: August 8, 2016



        MOORE, Presiding Judge.

        {¶1}     Defendant-Appellant David Saunders appeals from the judgment of the Medina

County Court of Common Pleas. We affirm.

                                                I.

        {¶2}     Lauren Hatch and Mr. Saunders had been family friends since childhood. Around

2006, the two began a five or six year, on again, off again relationship. After the relationship

ended, the two would still talk and see each other. Additionally, Mr. Saunders indicated he did

some work around Ms. Hatch’s house and claimed to have a key to her house. Mr. Saunders

stated that he would stop by the house and check on Ms. Hatch on a fairly regular basis. Ms.

Hatch denied that Mr. Saunders had a key.

        {¶3}     At the time of the incident at issue in this case, November 24, 2013, both Mr.

Saunders and Ms. Hatch were dating other people. Nonetheless, Mr. Saunders continued to call

Ms. Hatch and leave her voicemails expressing his affection for her and desire to get back
                                                2


together. Ms. Hatch blocked Mr. Saunders’ calls, but nonetheless continued to see and converse

with Mr. Saunders on occasion. She acknowledged that she told Mr. Saunders she would see

him on November 24, 2013, but testified that she did not intend to actually go. Ms. Hatch

testified that the two did not set a time to meet and that she only agreed to go because she feared

he would become violent if she did not. Ms. Hatch testified that Mr. Saunders had hit, kicked,

and pushed her in the past.

       {¶4}    Around midnight on November 24, 2013, Mr. Saunders left Ms. Hatch another

voicemail. In that voicemail, Mr. Saunders sounded frustrated and angry, stating that he was not

going to call or text Ms. Hatch again because that’s what she wanted. He also indicated that he

should have known better, that he had been pushed enough, and that he could not do it anymore.

He additionally informed Ms. Hatch that he was going to block her and not accept her calls.

       {¶5}    That evening, Ms. Hatch’s children were staying with her sister and Ms. Hatch

invited her boyfriend, Adam Barnett, over to her house on Huntington Street in Medina, and he

stayed the night. According to Ms. Hatch and Mr. Barnett, the windows and doors were closed

and locked at the time they went to bed. Around 5:40 a.m., Ms. Hatch was awakened by

someone shaking her. When the person turned on the light, she realized it was Mr. Saunders.

Mr. Saunders looked at Mr. Barnett and told Mr. Barnett that he was going “kick [his] a**.” He

then pulled out a knife and threatened to kill Ms. Hatch. Mr. Barnett reached for his clothes and

Mr. Saunders ripped them out of his hands. Ms. Hatch was getting up and Mr. Saunders grabbed

her arms and the two ended up in her son’s bedroom. Mr. Saunders was holding the knife and

Ms. Hatch used her hands and arms to block her face. Then Mr. Barnett came in the bedroom

and he and Mr. Saunders began fighting. Ultimately, Mr. Saunders fled from the residence.

After Ms. Hatch went downstairs and called the police, she and Mr. Barnett noticed that the
                                                3


window in the living room was open and the screen was knocked out of it. Additionally, the

front door was unlocked. Police found the screen outside on the ground near the window.

       {¶6}    Ms. Hatch sustained cuts to her left hand, left elbow, and right ring finger. Mr.

Barnett received lacerations to one of his fingers, face, and back. They both required stitches to

treat some of their wounds. Based upon her investigation, Detective Mary Gross concluded that

the injuries were defensive wounds. Mr. Saunders had a cut on his forehead, which he initially

told police he received while performing a car repair. At trial he claimed to have gotten the

laceration during the altercation.

       {¶7}    When police initially arrested Mr. Saunders, he denied any involvement in the

assaults; however, he did admit to drinking a lot the night before. He claimed to have been at

home the whole night and stated that he never left his house. Police nonetheless searched his

home and located clothing and shoes with blood stains. The blood stains contained DNA that

was consistent with Mr. Barnett’s and Ms. Hatch’s DNA. Inside Mr. Saunders’ bedroom, police

located a box for a knife, but the knife was not recovered. Additionally, surveillance video

placed a car that Mr. Saunders had access to in the area of Ms. Hatch’s house near the time of the

assaults. Only several months after the assaults did Mr. Saunders change his version of events

and admit to being at Ms. Hatch’s house during the relevant timeframe. However, Mr. Saunders’

version of events was drastically different than Mr. Barnett’s and Ms. Hatch’s; he believed that

Mr. Barnett was at fault and that he should have been charged.

       {¶8}    Mr. Saunders was indicted on three counts of aggravated burglary and two counts

of felonious assault. Ultimately, the matter proceeded to a jury trial. During the trial, the trial

court declined to allow defense counsel to cross-examine Mr. Barnett about the status of a prior

conviction. Additionally, the trial court refused to instruct the jury on self-defense. The jury
                                                  4


found Mr. Saunders guilty of all the charges and Mr. Saunders was sentenced to an aggregate

term of 9 years in prison.

       {¶9}    Mr. Saunders has appealed, raising two assignments of error for our review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON
       SELF[-]DEFENSE.

       {¶10} Mr. Saunders argues in his first assignment of error that the trial court erred in

failing to instruct the jury on self-defense for the felonious assault charges.

       {¶11} “This Court reviews a trial court’s decision to give or decline to give a particular

jury instruction for an abuse of discretion under the facts and circumstances of the case.”

(Citations omitted.) State v. Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 91. Self-

defense is an affirmative defense. See State v. Rust, 9th Dist. Summit No. 23165, 2007-Ohio-50,

¶ 10. “In order for the defendant to successfully raise an affirmative defense, evidence of a

nature and quality sufficient to raise the issue must be introduced.” (Citations omitted.) Rafferty

at ¶ 91. “Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim

of the defense. * * * [H]owever, * * * [i]f the evidence generates only a mere speculation or

possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of

the issue to the jury will be unwarranted.” (Internal quotations and citation omitted.) State v.

Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72.

       {¶12} The State maintained that Mr. Saunders committed felonious assault by

knowingly causing or attempting to cause physical harm to Mr. Barnett and Ms. Hatch with a

deadly weapon, i.e. a knife. Thus, Mr. Saunders was charged with using deadly force.
                                                 5


       To establish self-defense in circumstances involving the application of deadly
       force, a defendant must prove that he: (1) * * * was not at fault in creating the
       situation giving rise to the affray; (2) * * * ha[d] a bona fide belief that he was in
       imminent danger of death or great bodily harm and that his only means of escape
       from such danger was in the use of such force; and (3) * * * [did] not [ ] violate[ ]
       any duty to retreat or avoid the danger.

(Internal quotations and citations omitted.)         State v. D’Agostino, 9th Dist. Lorain No.

12CA010304, 2014-Ohio-551, ¶ 23.

       {¶13} “In addition to the specific requirements for establishing the defense of self-

defense, it is fundamental that, as an affirmative defense, [the defendant] was required to

establish that he had a justification for admitted conduct. * * * If his defense was merely a

denial or contradiction of the State’s evidence against him, no instruction on the affirmative

defense of self-defense was warranted.” (Internal quotations and citations omitted.) State v.

Archer, 9th Dist. Summit No. 26848, 2014-Ohio-1207, ¶ 19.

       {¶14} Mr. Saunders testified to the following version of events. A few days prior to

November 24, 2013, Mr. Saunders asked Ms. Hatch if she would go to the cemetery with him on

November 22 because it was the one-year anniversary of his father’s death. Ms. Hatch said that

she was busy that day but could go November 24. Mr. Saunders believed that, although they had

not agreed on a specific time, they were going to the cemetery in the morning of November 24

and that he would go over to her house and they would go together.

       {¶15} That evening Mr. Saunders had difficulty sleeping and decided to head over to

Ms. Hatch’s house as he needed to talk to someone. He parked across the street from the house

in a parking lot, despite there being ample room in her driveway. He arrived around 5:30 a.m.

       {¶16} According to Mr. Saunders, he walked to the house and went to the front door

first. The screen door was locked (and was unable to be opened with a key) and so Mr. Saunders

knocked but there was no answer. Mr. Saunders walked to the back of the house and noticed the
                                                6


screen to one of the windows on the grass. He assumed the cat had knocked it out. He

proceeded to the back door and knocked again. Mr. Saunders tried the back door, found it

unlocked, and entered the residence. He called out to Ms. Hatch but there was no answer. Mr.

Saunders went upstairs and encountered Ms. Hatch right outside her bedroom. According to Mr.

Saunders, she stated, “Oh, I’m sorry. I’m sorry, Dave. Now’s not a good time. * * * It’s not a

good time. Just go. I’ll call you in a little bit.” Instead of leaving, Mr. Saunders began asking

Ms. Hatch questions about whether she was alright. As he was doing so, Mr. Barnett came out

from behind Ms. Hatch, grabbed Mr. Saunders and pushed him up against a dresser, and began

yelling at Mr. Saunders to leave. Mr. Saunders noticed that Mr. Barnett had a knife. Mr.

Saunders pushed Mr. Barnett, and Mr. Barnett stumbled back and fell against another wall. The

next thing Mr. Saunders knew, Mr. Barnett was on top of him holding a knife on Mr. Saunders’

forehead. Mr. Barnett kept asking if Mr. Saunders was going to leave. At the same time, Ms.

Hatch was trying to break up the altercation and also kept telling Mr. Saunders to leave. Mr.

Barnett then let Mr. Saunders up and he proceeded out the front door and jogged back to his car.

       {¶17} Mr. Saunders asserted he was shocked by what happened because he and Ms.

Hatch had plans that day. While he was troubled by the events, he decided not to call the police

to report the incident because he did not want to get Ms. Hatch in trouble. He also testified that

he was unaware that either Mr. Barnett or Ms. Hatch had been cut. While Mr. Saunders averred

that he had blood all over him, he thought it was his own blood, as he received a cut to his

forehead. Mr. Saunders denied bringing a knife to the house and denied attacking anyone.

       {¶18} Even if we were to accept Mr. Saunders’ testimony as true, we could not conclude

the trial court abused its discretion in failing to give a self-defense instruction. Mr. Saunders

never admitted to having or using the knife, nor did he acknowledge that he attempted to, or
                                                 7


actually did, cause physical harm to Mr. Barnett and Ms. Hatch. In fact, Mr. Saunders seemed to

have no idea that Mr. Barnett and Ms. Hatch were even injured or have any knowledge of how

they were injured. Instead, it appears that Mr. Saunders was asserting that, if he injured the

victims, he did not act with the necessary mens rea, not that he knowingly caused physical harm

to the victims with a knife and was justified in doing so. See Archer, 2014-Ohio-1207, at ¶ 19.

       {¶19} However, even if we were to assume that Mr. Saunders’ testimony presented

evidence of a justification, we could not conclude that he presented sufficient evidence of the

other elements necessary to warrant a self-defense instruction. Even viewing the testimony in a

light most favorable to Mr. Saunders, there is little to support the conclusion that he had

permission to be in the house at that particular time. Even if Mr. Saunders had keys and had

plans to see Ms. Hatch at some point in the morning, nothing suggests that Mr. Saunders had

permission to be in the house in the pre-dawn hours of the morning. Mr. Saunders first knocked

on the doors, suggesting that he was seeking permission to enter. Further, any notion that Mr.

Saunders had permission to be in the residence was dispelled when Ms. Hatch told him to leave.

Thus, the trial court could have concluded that Mr. Saunders failed to present sufficient evidence

that he was not at fault in creating the situation that gave rise to the affray. See State v. Cobb,

153 Ohio App.3d 541, 2003-Ohio-3821, ¶ 11 (1st Dist.) (concluding that self-defense was not

established when the evidence demonstrated that the defendant pushed his way into the victim’s

apartment because the defendant was at fault in creating the situation that gave rise to the affray);

see also State v. Depew, 4th Dist. No. 00CA2562, 2002-Ohio-6158, ¶ 35 (“By entering his

neighbor’s yard, even at the victim’s urging to do so, and choosing to confront the victim,

appellant voluntarily entered into the encounter with the victim, who he knew to be a person

prone to violence, especially when drinking, as is apparently the case here.           Accordingly,
                                                  8


appellant was precluded from asserting the affirmative defense of self-defense because he has

not put forth evidence that he did not create the situation that gave rise to the affray.”); State v.

McAllister, 1st Dist. Clermont Nos. 858, 859, 1980 WL 353200, *2 (Feb. 13, 1980) (“Appellant,

in entering the White home to burglarize it, created the situation which gave rise to the affray.

Moreover, there is no evidence that he attempt[ed] to retreat to avoid the danger when George

White entered the room. The trial court therefore correctly refused to instruct the jury on the

affirmative defense of self-defense.”).

       {¶20} Additionally, the trial court could have reasonably concluded that Mr. Saunders’

testimony failed to present sufficient evidence 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 such

danger was in the use of such force[.]” See D’Agostino, 2014-Ohio-551, at ¶ 23. Mr. Saunders

did not testify that he had no means of escape other than using force. And while he did testify

that, at one point, he was pinned against a dresser, he also testified that, after that, he pushed Mr.

Barnett away and Mr. Barnett stumbled back against a wall. There was no testimony that that

event did not provide Mr. Saunders with an opportunity to extricate himself from the situation.

Further, there was no evidence that Mr. Saunders could not have avoided the situation all

together by leaving when Ms. Hatch first asked him to go. See McAllister at *2.

       {¶21} Given all of the foregoing, we determine the trial court did not abuse its discretion

in failing to give a self-defense instruction. Mr. Saunders’ first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY NOT ALLOWING MR. SAUNDERS’
       COUNSEL TO CROSS EXAMINE THE ALLEGED VICTIM ON HIS
       PROBATION, SPECIFICALLY BOTH FOR HIS CHARACTER FOR
       TRUTHFULNESS AND AS A POSSIBLE MOTIVE TO LIE TO POLICE AS
       TO WHO WAS THE AGGRESSOR ON THE NIGHT IN QUESTION.
                                                9


       {¶22} Mr. Saunders asserts in his second assignment of error that the trial court erred in

failing to allow him to cross-examine Mr. Barnett about the status of his conviction, as such

provided evidence of his character for truthfulness or untruthfulness and of a possible motive to

lie. While Mr. Saunders additionally asserts in the argument portion of his brief that the trial

court’s ruling also violated his right to confront witnesses, such an argument is outside the scope

of his stated assignment of error, see State v. Bennett, 9th Dist. Lorain No. 14CA010579, 2015-

Ohio-2887, ¶ 13, and is also undeveloped in his brief. See App.R. 16(A)(7).

       {¶23} “The trial court possesses broad discretion in determining the admission of

evidence.” State v. Gray, 9th Dist. Summit No. 27365, 2015-Ohio-1248, ¶ 55. “Absent an issue

of law, this Court, therefore, reviews the trial court’s decision regarding evidentiary matters

under an abuse of discretion standard of review.” (Citation omitted.) Id. An abuse of discretion

“implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶24} During the State’s direct examination of Mr. Barnett, Mr. Barnett testified that he

had prior convictions for driving under the influence of alcohol and for improperly transporting a

firearm. There was no testimony about whether Mr. Barnett was on probation for either offense.

On cross-examination, defense counsel sought to ask Mr. Barnett what the status of the felony

weapons charge was on November 24, 2013. The State objected and the following discussion

took place:

       The Court: Please tell me what you’re trying to show.

       [Defense Counsel]: I believe [Mr. Barnett] is going to testify that the case was
       pending at the time. He had just did a change of plea and was sentenced and he
       was on probation at the time, and I’m going to ask him about the fact that he was
       on probation at the time. I want to ask him about the fact while on probation, one
       of his requirements of probation was not to have any weapons and not to drink
       any alcohol and had a driver’s license suspension.
                                                10


       The Court: Okay. The objection is sustained. The relevance is dubious and the
       probative value is substantially outweighed by the prejudicial effect, 403.

       [Defense Counsel]: If I may make a record[], Your Honor?

       ***

       [Defense Counsel]: I believe that in the direct testimony, there was discussion of
       why he was at the house. There was discussions of him being at the house. It is a
       core part of our case that the two victims have made up at least portions of this
       story and I believe that the motivation for saying that was to keep [Mr. Barnett]
       out of * * * trouble.

       [The Court]: There is no evidence to that effect so far except your assertion, and I
       repeat that * * * the prejudicial effect of this evidence substantially outweighs the
       probative value.

       [Defense Counsel]: Then, Your Honor, I would move at the conclusion of this
       testimony he not be released from his subpoena so that if my client testifies and
       puts this question to the record, that he then be allowed so I can call him again as
       my case in chief.

       ***

       [The Court]: * * * If you wish, I can tell [Mr. Barnett] to remain available in case
       we need him further. I can do that.

       {¶25} Thus, Mr. Saunders’ counsel sought to admit evidence he believed would

demonstrate not only Mr. Barnett’s character for untruthfulness, but also that Mr. Barnett and

Ms. Hatch had a motive to lie about who possessed the knife, as Mr. Barnett’s possession of the

knife possibly would have violated his probation, if he was on probation. The trial court did not

conclude the testimony was inadmissible under either Evid.R. 608(B) (governing admission of

specific instances of conduct probative of character for truthfulness/untruthfulness) or Evid.R.

404(B) (governing admissibility of other acts evidence to demonstrate, inter alia, motive).

Instead, it found that the probative value of the potential testimony was substantially outweighed

by the danger of prejudice. See Evid.R. 403(B). At the point in time that Mr. Barnett testified,

there was no testimony that anyone other than Mr. Saunders possessed a weapon that night. In
                                                11


fact, subsequent to the above exchange, Mr. Barnett denied possessing a weapon during the

altercation. In addition, at this point in the trial, Mr. Saunders had already elicited testimony

from Ms. Hatch that she did not know whether Mr. Barnett had a criminal record and that she

would not have made up a story to keep Mr. Barnett from getting in trouble. Accordingly, at that

time defense counsel’s theory appeared to be based more on speculation than upon admitted

evidence.

       {¶26} Mr. Saunders, in his argument, largely focuses on the admissibility of the

evidence under Evid.R. 608(B) and spends little time discussing why the trial court abused its

discretion in finding that admission of the evidence would violate Evid.R. 403(B). While Mr.

Saunders would later testify that Mr. Barnett was the one who possessed the knife, Mr. Saunders’

counsel failed to recall Mr. Barnett to the stand or renew his request to have the testimony

admitted after Mr. Saunders testified.     Thus, it is difficult to conclude that Mr. Saunders

preserved the argument he now makes.

       {¶27} Nonetheless, even assuming the argument was preserved and that the trial court

abused its discretion in failing to allow the testimony, we cannot say that reversible error

occurred. Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded.” “Crim.R. 52(A) asks whether the rights

affected are ‘substantial’ and, if so, whether a defendant has suffered any prejudice as a result.”

State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 36.

       {¶28} The State presented overwhelming evidence of Mr. Saunders’ guilt that included

the testimony of both victims, DNA evidence, and the testimony of police officers. Further, Mr.

Saunders’s testimony was marred by credibility issues including the fact that Mr. Saunders

denied any involvement in the altercation, or even being at the scene, for most of the police’s
                                                 12


investigation. We cannot say that allowing Mr. Saunders to attempt to procure the testimony that

he sought to have admitted would have altered the outcome of the trial. See id. at ¶ 36-37. We

note that Mr. Barnett denied having a weapon that night, while an empty knife box had been

recovered from Mr. Saunders’ apartment. And as Mr. Saunders pointed out in his brief, “[t]here

[wa]s no guarantee what [Mr. Barnett] would have stated if asked [about the status of his felony

conviction].”     Given the entirety of the record, we conclude any error on the part of the trial

court was harmless beyond a reasonable doubt. See id. Even if Mr. Barnett had testified that he

was on probation at the time and that he was prohibited from having any weapons, we conclude

that the State presented evidence establishing Mr. Saunders’ guilt beyond a reasonable doubt.

See id.

          {¶29} Mr. Saunders’ second assignment of error is overruled.

                                                III.

          {¶30} Mr. Saunders’ assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




          There were reasonable grounds for this appeal.

          We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

          Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                13


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

SEAN BUCHANAN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
