[Cite as State v. Petrone, 2012-Ohio-911.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2011CA00067
                                               :
                                               :
ROBERT W. PETRONE                              :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2010-CR-1481

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             March 5, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     JAMES L. BURDON
Prosecuting Attorney                                137 S. Main Street
Stark County, Ohio                                  Suite 201
                                                    Akron, Ohio 44308
BY: KATHLEEN O. TATARSKY
 Assistant Prosecuting Attorney                     THOMAS R. HOULIHAN
Appellate Section                                   159 S. Main Street
110 Central Plaza, South – Ste. 510                 Suite 1100
Canton, Ohio 44702-1413                             Akron, Ohio 44308
[Cite as State v. Petrone, 2012-Ohio-911.]


Edwards, J.

        {¶1}     Appellant, Robert W. Petrone, appeals a judgment of the Stark County

Common Pleas Court convicting him of felonious assault (R.C. 2903.11(A)(2)) with a

firearm specification (R.C. 2941.145). Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     Appellant graduated from Cuyahoga Falls High School in 1982. He and

his wife, Sue Petrone, lived in Cuyahoga Falls. They separated in 2006 and Sue moved

into a house on the same street as appellant.

        {¶3}     Sue and appellant went to high school with Kevin Ciptak.     At a class

reunion in 2007, Sue and Ciptak became reacquainted. Ciptak was also separated

from his wife at the time, and he and Sue began to date in an on-and-off relationship.

        {¶4}     At a concert in 2008, Ciptak approached appellant. Ciptak told appellant

that he was a big and powerful man and was not afraid of appellant.            Appellant

explained that there were problems in his marriage and asked Ciptak to leave his family

alone unless he and Sue divorced. Ciptak and appellant shook hands and parted ways.

        {¶5}     While Ciptak was dating Sue, appellant continued to try to get back

together with Sue and indicated to her that he was jealous of Ciptak. He also told a

friend that Ciptak was playing with fire. During the summer of 2010 when Sue and

Ciptak had stopped seeing each other, Sue and appellant spent a weekend together at

Lake Erie.

        {¶6}     In August of 2010, Sue and Ciptak began seeing each other again. On

Friday, September 17, 2010, she and Ciptak went to a concert together in Pittsburgh.

On Saturday, September 18, 2010, Sue hosted a bonfire at her home for her daughter’s
Stark County App. Case No. 2011CA00067                                                  3


volleyball team. Appellant came over to help with the bonfire. After falling asleep by the

fire pit, appellant did not want to walk home so he crawled into bed with Sue and slept

over.

        {¶7}   The next morning, appellant told Sue that a little birdie told him that Sue

was with Ciptak on Friday night. When Sue told appellant it was none of his business,

appellant became angry. Sue talked to him about getting a divorce, a conversation she

estimated she had initiated at least a hundred times.

        {¶8}   Appellant returned home, intending to prepare his boat for winter storage

and attend the Cleveland Browns game in Cleveland. He and Sue continued to text

each other. Sue sent appellant a text which read, “As much as ud like 2 pt ur finger @

Kevin as the reason and prob ur wrong. I dnt want 2 b w you bcuz I want 2 b w him. He

feels exactly like u do as far as being frustrated and upset w me. I think moving will be

best 4 me. I hope u will support that wen the time comes.” Tr. 296-297.

        {¶9}   Appellant went to the Browns game, while Ciptak watched the same game

at Brubaker’s Pub in Cuyahoga Falls. He asked Sue to meet him there. She arrived

late, and Ciptak drank five beers while waiting for Sue to arrive. Sue and Ciptak had an

argument at the bar and Sue left.

        {¶10} Ciptak paid his bar tab and tried to call Sue on her cell phone. When she

did not answer, he drove to her house. Sue did not answer the door. Ciptak drove by

appellant’s house, where appellant was outside raking leaves. According to appellant

Ciptak gave him the finger, but Ciptak claimed he waved at appellant.           Appellant

decided that he needed to talk to Ciptak, and got in his truck to follow him.
Stark County App. Case No. 2011CA00067                                                  4


       {¶11} Ciptak proceeded to Route 8 South, headed toward a tree farm in Jackson

Township which he needed to visit in connection with his employment in landscaping.

He noticed appellant following him down 8 South and again on 77 South. He exited the

highway at Arlington Road, and appellant followed. Ciptak pulled into a parking lot of a

church that appeared to be holding services in an effort to lose appellant. Appellant did

not pull into the church. After several minutes Ciptak left the church lot, but found

appellant waiting for him at the next intersection.

       {¶12} When Ciptak arrived at the tree farm, appellant did not follow him into the

driveway.    Ciptak found no one around the tree farm.        As he began to leave the

driveway, appellant was driving toward him. At this point, Ciptak became angry and got

out of his vehicle, yelling at appellant, “What the bleep are you doing here. What the

hell, you know, what are you trying to do?” Tr. 153.

       {¶13} Appellant opened his door with one foot on the running board. Ciptak saw

a gun pointed toward him and heard a popping sound.

       {¶14} Donna Allen was de-burring her horses’ manes and tails in her barn next

to the tree farm. She heard someone yell, “What do you want, mother fucker?” several

times. She then heard five or six rapid gunshots.      While Allen’s husband took the kids

in the house and called 911, Allen grabbed some towels and went next door to

administer first aid. Ciptak was on the ground bleeding profusely. He was conscious

but in a lot of pain.

       {¶15} Police arrived on the scene and Ciptak was able to identify appellant as

the man who shot him. He was transported to Mercy Medical Center where he was

treated by Dr. Peter Boutsicaris, a trauma surgeon. Dr. Boutsicaris observed a gunshot
Stark County App. Case No. 2011CA00067                                                   5


wound in Ciptak’s lower abdomen which was spurting blood, a gunshot wound to his

upper left arm and a gunshot wound to his right hand. Ciptak was rushed into surgery

to control the bleeding from his abdomen wound, which would have killed him in a

matter of a few minutes to an hour.         After reviewing the CAT scan, Boutsicaris

determined that the bullet which caused the most injury entered Ciptak through the

upper buttock area and exited through his abdomen, traveling back to front and right to

left.   Ciptak’s blood alcohol level was determined to be .04.

        {¶16} Later analysis of Ciptak’s clothing revealed no gunshot residue, meaning

he was beyond a range of six and a half to seven feet from the muzzle of the revolver

when he was shot.      Analysis of the fibers of the clothes Ciptak was wearing revealed

that the back of his shirt showed signs of a bullet entrance, while the front of his shorts

demonstrated a bullet exit.

        {¶17} Meanwhile, appellant stopped at Sue’s home and told her he was taking

off for a few days to clear his head. He turned off his cell phone and took the battery

out. Appellant headed to southern Ohio, thinking he would “chill out” at property he

owned there. However, he changed his mind and decided to drive down I-70 to clear

his head. He drove to Colorado, where he turned his phone on and called his father.

His father told appellant to turn himself in. Appellant then drove to his daughter’s home

in Houston, Texas, where she urged appellant to turn himself in. He ultimately left his

truck in a parking lot of a hotel in Winnie, Texas, and drove to Cincinnati with his

daughter where his father picked him up. On September 22, 2011, appellant turned

himself in at the Jackson Township Police Department.
Stark County App. Case No. 2011CA00067                                                  6


       {¶18} Appellant was indicted by the Stark County Grand Jury with attempted

murder and felonious assault, both with firearm specifications. The case proceeded to

jury trial in the Stark County Common Pleas Court.

       {¶19} Appellant claimed self-defense at trial.     Appellant is the holder of a

concealed carry permit. He claimed that he feared Ciptak as a result of the incident at

the concert in 2008 when Ciptak described himself as a big, powerful man. He testified

that while he initially left his home on September 19, 2011 to follow Ciptak, when he

couldn’t find him in the neighborhood, he independently decided to drive to a roofing job

he had off of Strausser Street in Jackson Township. He then noticed Ciptak turning

right on Strausser when he needed to turn left to get to his job site, and decided it was

an opportunity to talk with Ciptak and still visit his own job site. He turned to follow

Ciptak instead of going to his own job site.

       {¶20} Appellant testified that he was driving up the narrow drive of the tree farm

when he saw Ciptak coming the other way. Ciptak jumped out of his truck. He testified

that he told Ciptak to leave his family alone. Appellant testified that he opened the door

of his truck and put his foot on the running board. He claimed Ciptak reached in the

door with his right arm. Afraid of what Ciptak would do, appellant retrieved his pistol

and shot three times from the cab of the truck at close range. Although a box cutter

was later retrieved from Ciptak’s pocket, appellant did not see the box cutter. Appellant

claimed he drove away because he didn’t know he hit Ciptak, he was just trying to scare

him away.

       {¶21} Appellant was acquitted of attempted murder but convicted of felonious

assault with a firearm specification. He was sentenced to five years incarceration on
Stark County App. Case No. 2011CA00067                                            7


the felonious assault conviction and three years incarceration on the firearm

specification. He assigns five errors:

       {¶22} “I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A

FAIR TRIAL BY THE TRIAL COURT’S PREJUDICIAL REMARK EXPRESSING THE

COURT’S     PERSONAL        OPINION      THAT   APPELLANT’S   CASTLE    DOCTRINE

DEFENSE WAS IRRELEVANT.

       {¶23} “II. THE TRIAL COURT MADE A CLEAR ERROR OF LAW IN FAILING

TO PROPERLY INSTRUCT THE JURY ON THE STATUTORILY-CREATED CASTLE

DOCTRINE.

       {¶24} “III. APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE

MANIFEST WEIGHT OF THE EVIDENCE.

       {¶25} “IV. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A

FAIR TRIAL BY THE TRIAL COURT’S ORDER DENYING APPELLANT ACCESS TO

THE SWORN GRAND JURY TESTIMONY OF THE ALLEGED VICTIM, KEVIN

CIPTAK, AND THEREAFTER PERMITTING THE PROSECUTION TO CROSS-

EXAMINE APPELLANT WITH HIS OWN SWORN GRAND JURY TESTIMONY.

       {¶26} “V. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL

RIGHT TO A FAIR TRIAL BY REFUSING TO PERMIT THE TESTIMONY OF

APPELLANT’S EXPERT REGARDING THE EFFECTS A GUNSHOT HAS UPON

CLOTHING.”

                                                I

       {¶27} In his first assignment of error, appellant argues the court improperly

commented on his statutory defense known as the Castle Doctrine. During re-direct
Stark County App. Case No. 2011CA00067                                                   8


examination of appellant’s expert witness, Daniel Clevenger, the following colloquy

occurred:

       {¶28} “MR. O’BRIEN:

       {¶29} “Q. The Attorney General’s book talks about the Castle Doctrine; does it

not?

       {¶30} “A. Yes, sir, it does.

       {¶31} “Q. All right. Explain the Castle Doctrine.

       {¶32} “MS. HARTNETT: Objection.

       {¶33} “THE COURT: Sustained.

       {¶34} “BY MR. O’BRIEN:

       {¶35} “Q. Does the book that the Attorney General puts out, does it include the

information that a person does not have a duty to retreat?

       {¶36} “MS. HARTNETT: Objection.

       {¶37} “THE COURT: Sustained. Has no relevance to this case.

       {¶38} “MR. O’BRIEN: Understood.”

       {¶39} Clevenger teaches a concealed carry permit class to civilians. However,

appellant did not take classes from Clevenger.

       {¶40} Generally, in determining whether a trial judge's remarks were prejudicial:

(1)the burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is

presumed that the trial judge is in the best position to decide when a breach is

committed and what corrective measures are called for, (3) the remarks are to be

considered in light of the circumstances under which they are made, (4) consideration is

to be given to their possible effect upon the jury, and (5) to their possible impairment of
Stark County App. Case No. 2011CA00067                                                   9

the effectiveness of counsel.     State v. Wade (1978), 53 Ohio St.2d 182, 188, 373

N.E.2d 1244, 1248.

      {¶41} However, appellant failed to object, and in fact stated that he understood.

The failure to object constitutes a waiver of the error, because absent an objection, the

trial judge is denied an opportunity to give corrective instructions. Id. at 1248-1249,

citing State v. Williams (1974), 39 Ohio St.2d 20, 313 N.E.2d 859; State v. Childs

(1968), 14 Ohio St.2d 56, 236 N.E.2d 545; Smith v. Flesher (1967), 12 Ohio St.2d 107,

233 N.E.2d 137. See, also, United States v. Gaines (C.A.3, 1971), 450 F.2d 186,

certiorari denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801; United States v.

Bessesen (C.A.8, 1970), 433 F.2d 861, certiorari denied, 401 U.S. 1009, 91 S.Ct. 1254,

28 L.Ed.2d 545.

      {¶42} Appellant has not demonstrated prejudice from this isolated comment.

We first note that it is not clear whether the trial judge is commenting that the Castle

Doctrine is irrelevant, or, more likely, that what the Attorney General’s book states about

the Castle Doctrine is irrelevant, particularly as appellant did not take his classes from

Clevenger.   The trial court gave a general curative instruction that the jury was to

disregard anything the court said or did which they might consider an indication of the

court’s view of the facts. Tr. 780. Further, it is clear from the lengthy instructions the

court gave to the jury concerning the application of the doctrine of self defense and the

Castle Doctrine that the jury was made aware that the Castle Doctrine was very much

relevant to the instant case. Appellant has not demonstrated prejudice from this single

isolated comment.

      {¶43} The first assignment of error is overruled.
Stark County App. Case No. 2011CA00067                                                  10


                                                 II

       {¶44} In his second assignment of error, appellant argues that the court erred in

its instructions to the jury concerning self defense and the Castle Doctrine. Appellant

argues that the court erred by giving the Castle Doctrine instruction after, rather than

before, the common law self defense instruction. He argues that the instructions as

given by the court fail to make it clear that under the statutory Castle Doctrine, he could

have been acquitted without demonstrating that he was not responsible for creating the

affray leading to the shooting and that he was in imminent fear of bodily harm or death.

He argues that the self defense instruction was a “six-page word salad, which did

nothing but confuse the jury.”

       {¶45} The trial court instructed the jury as follows concerning self defense:

       {¶46} “Now, self-defense. The Defendant claims to have acted in self-defense.

To establish a claim of self-defense, the Defendant must prove, by the greater weight of

the evidence, all of the following: Number one, that he was not at fault in creating the

situation giving rise to the incident involving the shooting of Kevin Ciptak.

       {¶47} “And, number two, he had reasonable grounds to believe and an honest

belief, even if mistaken, that he was in imminent or immediate danger of death or great

bodily harm, and that his only reasonable means or response to such danger was by

the use of deadly force.

       {¶48} “And, number three, that he had not violated any duty, if he’s required to

have a duty, to retreat to avoid the danger.
Stark County App. Case No. 2011CA00067                                                11


       {¶49} “Now, words alone do not justify the use of deadly force. Resort to such

force is not justified by abusive language or verbal threats or other words, no matter

how provocative.

       {¶50} “In deciding whether the Defendant had reasonable grounds to believe

and an honest belief that he was in immediate danger of death or great bodily harm, you

must put yourself in the position of the Defendant with his circumstances, his

knowledge, or lack of knowledge, and under the circumstances and conditions that

surrounded him at the time.

       {¶51} “You must consider the conduct of Kevin Ciptak and decide whether his

acts and words caused the Defendant to reasonably and honestly believe that he was

about to be killed or receive great bodily harm.

       {¶52} “If the Defendant used more force than was reasonably necessary and if

the force used is greatly disproportionate to the apparent danger, then the defense of

self-defense is not available.

       {¶53} “Now, there is no duty to retreat required if the Defendant is lawfully an

occupant of his vehicle or of a vehicle owned by his immediate family member. If the

Defendant is such a lawful occupant of the vehicle, he has no duty to retreat before

using force in self-defense.      The Defendant must, however, still meet the other

requirements for acting in self-defense. He would not, however, have a duty to retreat if

he is a lawful occupant; of the vehicle. Remember we gave you the three tests? That’s

just the third one. The duty to retreat is what this instruction deals with.

       {¶54} “Now, the Defendant had a duty to retreat if he was at fault in creating the

situation giving rise to the attempt of murder of Kevin Ciptak, or he did not have
Stark County App. Case No. 2011CA00067                                                  12


reasonable grounds to believe and an honest belief that he was in immediate or - -

imminent or immediate danger of death or great bodily harm, or that he had a

reasonable means to escape from that danger other than by the use of deadly force.

       {¶55} “The Defendant no longer had a duty to retreat if he retreated from the

situation or reasonably indicated his intention to retreat from the situation and no longer

participated in it and he had reasonable grounds to believe and an honest belief that he

was in imminent danger of death or great bodily harm, and the only reasonable means

to escape from that danger was by the use of deadly force even though he was

mistaken as to the existence of that danger.

       {¶56} “Now, these instructions all just deal with the duty to retreat. And when

you sit down, you’re going to have to read through these because you want to look

through those again.

       {¶57} “But, again, I want to reemphasize to you that he has no duty to retreat if

he is lawfully an occupant of his vehicle or a vehicle owned by his immediate family

member, and if he’s the - - Defendant is such a lawful occupant of the vehicle under

Ohio law, he has no duty to retreat before using force and self-defense.

       {¶58} “However, the Defendant must, however, still meet the other requirements

other than the duty to retreat for acting in self-defense. He would not, however, have a

duty to retreat if he’s a lawful occupant of the vehicle.

       {¶59} “Now, let’s move down. We’re halfway on the next page where it says

presumption. The Defendant is presumed to have acted in self-defense if you find that

the Defendant has shown all of the following by a preponderance of the evidence.
Stark County App. Case No. 2011CA00067                                                    13


       {¶60} “Number one, that the Defendant was in a vehicle lawfully, and we mean

his vehicle lawfully. That’s been the testimony here is that it was his vehicle.

       {¶61} “Number two, that Kevin Ciptak did not have a right to be in said vehicle.

       {¶62} “And that Kevin Ciptak was in the process of entering or had entered the

vehicle unlawfully when the Defendant used the defensive force.

       {¶63} “If you find that the Defendant is entitled to the presumption, as outlined

above, the State of Ohio may rebut such presumption if the State demonstrates by a

preponderance of the evidence any of the following: The Defendant was at fault in

creating the situation giving rise to the shooting incident involving Kevin Ciptak, or the

Defendant did not have reasonable grounds to believe and an honest belief, even if

mistaken, that he was in imminent or immediate danger of death or great bodily harm,

and that his only means of response to such danger was by the use of deadly force, or

the Defendant violated any duty to retreat, as previously defined, to avoid the danger.

       {¶64} “However, there is no duty to retreat if the Defendant was lawfully an

occupant of the vehicle.

       {¶65} “If the State of Ohio rebuts the presumption, if that presumption arises and

if the State rebuts that presumption by a preponderance of the evidence, then the

Defendant is not entitled to a presumption that he acted in self-defense.

       {¶66} “However, the Defendant may be entitled to the affirmative defense of self-

defense if he proves all of the elements of said defense as previously defined in this

instruction by a preponderance of the evidence.” Tr. 759-765.

       {¶67} Before trial, the court provided counsel with the instructions he intended to

give to the jury concerning self defense. Tr. 2/23/11, 35-36. Appellant did not offer
Stark County App. Case No. 2011CA00067                                                    14


alternative instructions, nor did he object to the court’s instructions as given at trial.

Crim. R. 30(A) provides that on appeal, a party may not assign as error the giving or

failure to give any instructions unless the party objects before the jury retires to consider

its verdict.   Because appellant failed to object, we must find plain error in order to

reverse. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; Crim.R. 52(B). In

order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error. Long, supra. Notice of plain error “is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at

paragraph three of the syllabus.

       {¶68} The Castle Doctrine has been codified by R.C. 2901.05(B):

       {¶69} “(B)(1) Subject to division (B)(2) of this section, a person is presumed to

have acted in self defense or defense of another when using defensive force that is

intended or likely to cause death or great bodily harm to another if the person against

whom the defensive force is used is in the process of unlawfully and without privilege to

do so entering, or has unlawfully and without privilege to do so entered, the residence or

vehicle occupied by the person using the defensive force….

       {¶70} “(B)(3) The presumption set forth in division (B)(1) of this section is a

rebuttable presumption and may be rebutted by a preponderance of the evidence.”

       {¶71} To prevail on a common law self defense claim, the offender must

demonstrate that he was not at fault in creating the situation giving rise to the affray; he

had a bona fide belief that he was in imminent danger of death or great bodily harm and

that the only means of escape from such danger was in the use of such force; and he
Stark County App. Case No. 2011CA00067                                                15

must not have violated any duty to retreat or avoid the danger. State v. Robbins (1979),

58 Ohio St.2d 74, at 80.

       {¶72} While the instructions as given to the jury were somewhat convoluted and

it perhaps would have been clearer to give the Castle Doctrine instruction before the

common law self defense instruction, the instructions as given did include all elements

of both the common law self defense claim and the Castle Doctrine defense as outlined

in R.C. 2901.05(B).

       {¶73} Appellant has not demonstrated that he would have been acquitted had

the Castle doctrine instruction been given first. First, the jury could easily have found

that the statutory Castle doctrine was not applicable due to the contradictory evidence

regarding whether the victim ever entered appellant’s vehicle. In the instant case, while

appellant testified that Ciptak reached inside the cab of the truck, appellant had opened

the door and had one foot on the running board. There was no evidence that Ciptak

tried to enter the vehicle other than appellant’s testimony that he reached inside the

cab.   Further, the forensic evidence demonstrated that appellant shot Ciptak in the

back, from a distance of greater than six and a half to seven feet. Second, even if the

jury concluded that the Castle doctrine was applicable, R.C. 2901.05(B)(3) provides that

the presumption that a defendant acted in self-defense may be rebutted by the

prosecutor by a preponderance of the evidence. Appellant admitted that he followed

Ciptak to his job site at the tree farm, intending to confront him about the issues

surrounding their respective relationships with his estranged wife. The jury could have

found that by appellant’s own testimony, the presumption of self-defense provided by

R.C. 2901.05(B)(2) was rebutted, as he was at fault in creating the situation giving rise
Stark County App. Case No. 2011CA00067                                               16


to the shooting.   In addition, the jury could have found that the presumption was

rebutted because the appellant did not have reasonable grounds to believe he was in

imminent danger of death or great bodily harm and/or that appellant’s only reasonable

response was the use of deadly force. While a box cutter was later found on Ciptak’s

person, appellant did not see the box cutter before he shot Ciptak. Further, as stated

above, forensic evidence indicated that appellant shot Ciptak in the back from over six

feet away.

      {¶74} The second assignment of error is overruled.

                                           III

      {¶75} Appellant argues that the judgment of conviction is against the manifest

weight of the evidence. Felonious assault is defined by R.C. 2903.11(A)(2):

      {¶76} “(A) No person shall knowingly do either of the following”

      {¶77} “(2) Cause or attempt to cause physical harm to another or to another’s

unborn by means of a deadly weapon or dangerous ordnance.”

      {¶78} Appellant’s sole argument is that the jury lost its way in failing to acquit

him based on self defense, either as an affirmative defense under common law or

pursuant to R.C. 2901.05(B).

      {¶79} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
Stark County App. Case No. 2011CA00067                                                   17

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

       {¶80} To prevail on a common law self defense claim, the offender must

demonstrate that he was not at fault in creating the situation giving rise to the affray; he

had a bona fide belief that he was in imminent danger of death or great bodily harm and

that the only means of escape from such danger was in the use of such force; and he

must not have violated any duty to retreat or avoid the danger. State v. Robbins (1979),

58 Ohio St.2d 74, at 80.

       {¶81} Appellant has not demonstrated that the jury lost its way in failing to acquit

him on this affirmative defense. There was evidence that appellant followed Ciptak to

the tree farm, intending to confront him about Ciptak dating his estranged wife. Earlier

that day, appellant had asked Sue about seeing Ciptak that weekend, and she had

responded by engaging him in a conversation about getting a divorce.              She sent

appellant a text earlier that day stating that she wanted to be with Ciptak. The only

evidence appellant presented that he had a bona fide belief that he was in imminent

danger of death or great bodily harm was his testimony that two years earlier, Ciptak

had confronted him in an intimidating manner at a concert and Ciptak told appellant he

was a big, powerful man. However, the two parted with a handshake that day and did

not have a physical altercation. Appellant testified that Ciptak reached inside the cab of

the truck, and that’s why he shot at Ciptak, intending to scare him.          However, he

admitted that Ciptak did not have a visible weapon, that he himself had opened the

door, and that he had one foot on the running board.               The forensic evidence
Stark County App. Case No. 2011CA00067                                                 18


demonstrated that Ciptak was shot in the back from a distance of greater than six and a

half or seven feet.

       {¶82} R.C. 2901.05(B) provides:

       {¶83} “(B)(1) Subject to division (B)(2) of this section, a person is presumed to

have acted in self defense or defense of another when using defensive force that is

intended or likely to cause death or great bodily harm to another if the person against

whom the defensive force is used is in the process of unlawfully and without privilege to

do so entering, or has unlawfully and without privilege to do so entered, the residence or

vehicle occupied by the person using the defensive force.”

       {¶84} This presumption may be rebutted by the state. R.C. 2901.05(B)(3).

       {¶85} Appellant has not demonstrated that the jury lost its way in failing to find

he was entitled to this statutory presumption.      The only evidence that Ciptak was

attempting to enter the vehicle was appellant’s testimony that Ciptak reached inside the

cab. According to Ciptak’s testimony, when he walked to the front of his own truck at

the passenger side, he could see that appellant’s truck door was open and he saw a

gun pointed at him. Ciptak testified that he never got close to appellant’s truck because

he saw the gun pointed at him.       Ciptak’s testimony is consistent with the forensic

testimony concerning the distance from which he was shot.

       {¶86} The third assignment of error is overruled.

                                               IV

       {¶87} In his fourth assignment of error, appellant argues that the court erred in

failing to disclose Ciptak’s grand jury testimony to him, and in allowing the State to use

his own grand jury testimony to impeach him.
Stark County App. Case No. 2011CA00067                                                  19


       {¶88} As to appellant’s claim that the court erred in allowing the State to use his

own grand jury testimony to impeach him, appellant did not object at trial, and therefore

we must find plain error to reverse. Long, supra. Not only did appellant fail to object at

trial, but counsel recognized at an earlier hearing that while he had to show

particularized need to obtain grand jury testimony of Ciptak, if the defendant testifies at

the grand jury, “that’s pretty much fair game.” Tr. 2/23/11, p.22.

       {¶89} This Court has previously recognized that pursuant to Ohio law, the State

need not show particularized need in order to use grand jury testimony to cross-

examine defense witnesses:

       {¶90} “On the other hand, the State argues that the prosecution may use grand

jury testimony to impeach defense witnesses. See State v. Patterson (May 22, 1998),

Trumbull App. No. 96-T-5439, unreported, 1998 WL 310737; State v. Mastronardi (Dec.

5, 1997), Erie App. No. E-96-033, unreported, 1997 WL771575; State v. Hopfer (1996),

112 Ohio App.3d 521, 550, 679 N.E.2d 321. These cases stand for the proposition that

the state is free to use the testimony for impeachment and that once the grand jury

testimony is used for impeachment, the grand jury testimony of that witness must be

released to the defendant. Hopfer, supra. These cases cite to no requirement that the

State show particularized need prior to using grand jury testimony to impeach a defense

witness.”     State v. Gibbons (March 30, 2000), Stark App. No. 1998CA00158,

unreported.

       {¶91} Appellant has not demonstrated error, plain or otherwise, in the State’s

use of his own grand jury testimony on cross-examination.
Stark County App. Case No. 2011CA00067                                                   20


       {¶92} Appellant also argues that the court erred in overruling his motion for

disclosure of Ciptak’s grand jury testimony.

       {¶93} The release of grand jury testimony for use prior to or during trial is within

the sound discretion of the trial court. State v. Coley (2001), 93 Ohio St.3d 253, 261,

754 N.E.2d 1129.

       {¶94} In State v. Greer, the Supreme Court of Ohio stated, “Grand jury

proceedings are secret, and an accused is not entitled to inspect grand jury transcripts

either before or during trial unless the ends of justice require it and there is a showing

by the defense that a particularized need for disclosure exists which outweighs the need

for secrecy.” State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982,

paragraph two of the syllabus. A particularized need is established “when the

circumstances reveal a probability that the failure to provide the grand jury testimony will

deny the defendant a fair trial” of the allegations placed in issue by the witnesses'

testimony. State v. Davis (1988), 38 Ohio St.3d 361, 365, 528 N.E.2d 925, quoting State

v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 478 N.E.2d 781. State v.

Hernandez (Mar. 29, 1991), Columbiana App. No. 87-C-56, 1991 WL 44362; and State

v. Dillon, Darke App. No. 05CA1674, 2006-Ohio-4931, 2006 WL 2709704.

       {¶95} Impeachment through material inconsistencies may be a proper basis for

disclosure of grand jury testimony, but that purpose alone is not sufficient. State v.

Patterson (1971), 28 Ohio St.2d 181, 57 O.O.2d 422, 277 N.E.2d 201; Hernandez. The

claim that a witness's grand jury testimony may differ from trial testimony is insufficient

to show a particularized need. State v. Henness (1997), 79 Ohio St.3d 53, 62, 679

N.E.2d 686.
Stark County App. Case No. 2011CA00067                                                   21


        {¶96} Appellant argues that he was entitled to the grand jury testimony of Ciptak

because such testimony may have contained inconsistent statements and because the

State used appellant’s grand jury testimony in cross-examination. The trial court did not

abuse its discretion in overruling appellant’s motion for disclosure. Appellant argued to

the trial court that there were a lot of inaudible parts in the two recorded statements

Ciptak gave at the hospital, and he might have said something different before the

grand jury than what he said in these statements. Tr. 23. This request was nothing

more than a fishing expedition for possible inconsistencies.            Appellant did not

demonstrate particularlized need based on a showing that there was a reason to

suspect material inconsistencies.      As noted earlier, the State was entitled to use

appellant’s grand jury testimony once appellant agreed to testify before the grand jury.

The State’s use of appellant’s grand jury testimony did not give appellant a

particularized need for Ciptak’s testimony.

        {¶97} The fourth assignment of error is overruled.

                                                 V

        {¶98} In his final assignment of error, appellant argues that the court erred in not

allowing his witness to testify about clothing Ciptak was wearing at the time he was

shot.

        {¶99} Thomas Procaccio, the owner of a gun store and shooting range, testified

for the defense. When asked a question as to the clothing Ciptak was wearing, the

State objected on the grounds that he was not qualified as an expert regarding clothing.

The trial court agreed and told defense counsel to go ahead and attempt to establish his

credentials.
Stark County App. Case No. 2011CA00067                                                22


      {¶100} On further examination, Procaccio testified that he has many times tested

gunshot penetrations through clothing. He had no academic training in such analysis.

He testified that he had never before testified as a firearms expert in court. The trial

court found that he had not established expertise in clothing because he had not shown

anything that he had done scientifically.   The court again told counsel that he could

continue to try to establish Procaccio’s credentials.    Procaccio testified that he had

tested different types of ammunition to determine what kind of defects they caused on

clothing by attaching clothing to hams and big pieces of roast beef to determine what

the reaction is when the bullet goes in one side and out the other. He testified that he

examined Ciptak’s clothing at the prosecutor’s office.

      {¶101} Appellant now claims that Procaccio was called as an expert to refute the

testimony that Ciptak was shot in the back. However, appellant did not proffer this

testimony.

      {¶102} A party may not predicate error on the exclusion of evidence unless two

conditions are met: (1) the exclusion of such evidence must affect a substantial right of

the party and (2) the substance of the excluded evidence was made known to the court

by proffer or was apparent from the context within which questions were asked. State v.

Gilmore (1986), 28 Ohio St.3d 190, 191, 503 N.E.2d 147.         In the instant case, the

substance of the excluded evidence was not proffered, nor is it apparent from the

context within which the questions were asked. The questions to which objections were

sustained related to whether the person wearing the t-shirt may have had it tucked into

his shorts, and whether there were defects in the clothing. The remaining testimony of
Stark County App. Case No. 2011CA00067                                                23


Procaccio concerning what those defects might be and what they indicated concerning

the shooting is not apparent from the questions themselves.

      {¶103} Further, appellant has not demonstrated that the court erred in finding

Procaccio was not an expert in clothing analysis.        Evid.R. 104(A) provides that

preliminary questions concerning the qualification of a person to be a witness must be

determined by the court. A trial court's ruling on the witness's qualification or

competency to testify as an expert will ordinarily not be reversed on appeal unless there

is a clear showing that the court abused its discretion. Alexander v. Mt. Carmel Med.

Ctr. (1978), 56 Ohio St.2d 155, 383 N.E.2d 564; Ohio Turnpike Comm. v. Ellis (1955),

164 Ohio St. 377, 131 N.E.2d 397. An abuse of discretion implies that the court's

attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1142, quoting State v.

Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144.

      {¶104} Procaccio testified that he had no formal training in analysis of gunshot

defects in clothing. His experience was based on testing certain types of ammunition by

attaching clothing to hams, large pieces of roast beef and other items and observing the

reaction in the clothing. He had never testified as an expert witness. While the trial

court allowed him to testify based on his experience in some areas of ballistics, the

court did not abuse its discretion in finding that he was not an expert in the area of

gunshot defects in clothing.
Stark County App. Case No. 2011CA00067                                             24


      {¶105} The fifth assignment of error is overruled.

      {¶106} The judgment of the Stark County Court of Common Pleas is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Wise, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                            JUDGES

JAE/r1201
[Cite as State v. Petrone, 2012-Ohio-911.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ROBERT W. PETRONE                                 :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011CA00067




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
