[Cite as State v. Steinhauer, 2014-Ohio-1981.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY

STATE OF OHIO,                                         :
                                                       :
        Plaintiff-Appellee,                            :
                                                       :             Case No. 12CA3528
        v.                                             :
                                                       :             DECISION AND
THOMAS H. STEINHAUER,                                  :             JUDGMENT ENTRY
                                                       :
        Defendant-Appellant.                           :             Released: 05/08/2014

                                             APPEARANCES:
Christopher T. Travis, Stevensville, Michigan for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney and Julie Hutchinson, Assistant Scioto
County Prosecuting Attorney, Portsmouth, Ohio for Appellee.



Hoover, J.:

        {¶ 1} Appellant herein and defendant below, Thomas Steinhauer, raises two assignments

of error regarding the judgment of the Scioto County Court of Common Pleas, after a jury found

him guilty of ten counts including Aggravated Murder. First, appellant contends that the trial

court erred when it denied his request for a self-defense jury instruction. Second, appellant

argues that the trial court erred by denying him the admission of relevant character evidence of

the victim. After a review of the trial record and transcripts, we overrule appellant’s assignments

of error and affirm the judgment of the trial court.

Appellant’s First Assignment of Error:

        APPELLANT WAS DENIED DUE PROCESS GUARANTEED PURSUANT

        TO THE 6TH AND 14TH AMENDMENT AS A RESULT OF THE TRIAL
Scioto App. No. 12CA3528                                                                 2


       COURT DENYING APPELLANT’S REQUEST THAT A SELF DEFENSE

       JURY INSTRUCTION BE CHARGED TO THE JURY.

Appellant’s Second Assignment of Error:

       THE TRIAL COURT ERRED TO THE PREJUDICE OF

       APPELLANT/DEFENDANT BY DENYING THE ADMISSION OF

       RELEVANT CHARACTER EVIDENCE OF AN ALLEGED VICTIM.

                                 I. Facts and Procedural History

       {¶ 2} The following facts are useful for review of the appellant’s assignments of error.

On March 23, 2012, appellant Thomas H. Steinhauer was indicted by the Scioto County Grand

Jury on the following counts: Count One, Aggravated Murder, in violation of R.C. 2903.01(A);

Count Two, Aggravated Murder, in violation of R.C. 2903.01(B); Count Three, Murder, in

violation of R.C. 2903.02(B); Count Four, Aggravated Arson, a first degree felony, in violation

of R.C. 2909.02(A)(1); Count Five, Arson, a fourth degree felony, in violation of R.C.

2909.03(A)(1); Counts Six, Seven, and Eight, Tampering With Evidence, a third degree felony,

in violation of R.C. 2921.12(A)(1); Count Nine, Kidnapping, a first degree felony, in violation of

R.C. 2905.01(A)(2); Count Ten, Conspiracy to Aggravated Murder/Murder, a second degree

felony, in violation of R.C. 2903.02(B). These charges stemmed from the death of Felipe Lopez

and the events that took place on March 7, 2012.

        {¶ 3} Felipe Lopez (“Lopez”), a Mexican national, moved from Chicago, Illinois to

Portsmouth, Ohio in 2009 to work at Savory Foods. A majority of Lopez’s family remained in

Chicago after his move. At trial, Lopez’s wife, Kelly Lopez, discussed Lopez’s background,

interests, and when Lopez first met Steinhauer. She testified that her husband loved to play and

coach soccer. The State revealed in its opening statement that Lopez sold cocaine. Kelly Lopez
Scioto App. No. 12CA3528                                                                     3


testified that she never asked her husband about his dealings with cocaine or had a conversation

about it with him.

       {¶ 4} In the spring of 2011, Lopez met appellant, Thomas Steinhauer. The interactions

between the two included socializing on Lopez’s front porch and playing cards or chess. At trial,

Steinhauer testified and provided his account of the events of March 7, 2012. Steinhauer became

involved in selling drugs with Lopez in November 2011. Steinhauer would buy cocaine from

Lopez and sell it to a few individuals, including Raymond Linkous (“Linkous”), and David

Gerald (“Gerald”). According to Steinhauer, a week or so before March 7, 2012 he discovered

that Gerald owed money to Lopez. Steinhauer had also owed $2,700 to Lopez. On March 6, 2012,

Lopez called Steinhauer and told him to bring what he had, in order to pay off his debt.

Steinhauer testified that Lopez also asked him to bring Gerald to his house.

       {¶ 5} On March 7, 2012, Steinhauer called Debbie Conn, the owner of a truck he would

frequently borrow. The truck was a Chevrolet S-10. After dropping Ms. Conn off at a residence,

Steinhauer headed back home. Once there, he placed a 12-gauge shotgun in the cab of the truck,

purportedly because Lopez had told him to bring what he had. Next, appellant picked up Gerald

and the two proceeded to Lopez’s residence. Once there, Steinhauer gave Lopez the shotgun.

Linkous was unable to find a ride to Lopez’s house, so Steinhauer left, picked him up, and

brought him back.

       {¶ 6} After the four men were back at the Lopez residence, they then left the home to

travel to Otway, Ohio or McDermott, Ohio depending on the testimony presented. Steinhauer

testified that he was the driver of the S-10 truck. Steinhauer sat in the driver’s seat; Lopez sat in

the passenger seat; Linkous sat in the bed of the truck on the driver’s side; and Gerald sat in the

bed of the truck on the passenger’s side. According to Steinhauer, Lopez became agitated that he
Scioto App. No. 12CA3528                                                                     4


did not take State Route 104 on the way to Otway. While driving, Steinhauer asked Lopez why

they were travelling to McDermott. Lopez answered that they were going to kill Linkous because

Linkous was an informant against him. Lopez told Steinhauer that he (Steinhauer) would be the

one to kill Linkous. While Steinhauer was still driving, he told Lopez that he was not going to

kill Linkous.

       {¶ 7} According to Steinhauer, Lopez pulled a gun on him and demanded that he kill

Linkous. If he refused, Lopez threatened to kill him instead. Next, Steinhauer testified that at this

point, he feared for his life. He downshifted the gear of the truck and grabbed his knife.

Steinhauer grabbed the gun with his left hand and began to stab Lopez with his right hand. After

a struggle in the front seat, Steinhauer seized control of the gun by placing his thumb on the

safety. At this time, Steinhauer testified that someone, most likely Gerald, used the hatchet to

smash the passenger window and strike Lopez in the head. With Lopez immobilized in the

passenger seat, Steinhauer drove the truck through 2nd Street in Portsmouth, Ohio, turned right

onto U.S. 23 South, and headed to Kentucky. The group arrived at an area known as the Soloam

Bottoms. Steinhauer testified that after Lopez’s cell phone rang, Linkous smashed the phone

with the hatchet. The group left the phone and hatchet at that location.

       {¶ 8} Next, Steinhauer, Gerald and Linkous, believing Lopez to be dead, traveled back to

Linkous’s residence in Wheelersburg, Ohio. Gerald and Linkous drove a PT Cruiser to Kroger to

buy gasoline. Steinhauer, driving the truck with Lopez still inside, met up with the other two and

headed to the sight where the truck was later found on fire with Lopez inside. Steinhauer testified

that Linkous poured gasoline on the truck and set it on fire. After leaving the scene, Steinhauer

was dropped off at his cousin Stevie’s house in Wheelersburg. Steinhauer placed his clothes in a

bag and took some sleeping pills. Sheriff deputies later arrived at Stevie’s house and took
Scioto App. No. 12CA3528                                                                 5


Steinhauer into custody. Steinhauer took the deputies to the Soloam Bottoms and pointed out the

location of Lopez’s cell phone and the hatchet. Steinhauer also turned over his knife that was

used to stab Lopez.

       {¶ 9} The Bureau of Criminal Identifications and Investigations (BCI) tested the items

recovered for DNA analysis. The BCI lab received a knife, a hatchet, a coat, and DNA samples

from Steinhauer, Linkous, Gerald, and Lopez. BCI found the blood on the coat and the blade of

the knife was consistent with Lopez’s DNA. BCI also found that DNA on the handle of the knife

was consistent with Lopez and Steinhauer’s DNA. DNA on the blade of the hatchet was

consistent with Lopez’s profile. DNA on the handle of the hatchet was consistent with the DNA

of Lopez, Gerald, and Linkous.

       {¶ 10} The State’s theory of the case was that Steinhauer, Gerald, and Linkous, with

prior calculation and design, planned to murder Lopez. According to the State, the evidence

demonstrated someone removed Lopez from the truck and hit him from behind with the ax. They

argued that the five stab wounds, in a very tight pattern, would show that Lopez was not fighting,

jerking, trying to shoot them, or even flailing about.

       {¶ 11} The State presented Detective Jodi Conkel, of the Scioto County Sherriff’s

Department, who testified that on at least three occasions, Steinhauer admitted to her during an

interview that the three men discussed killing Lopez prior to March 7, 2012.

       {¶ 12} The State also presented Sergeant John Koch, of the Scioto County Sherriff’s

office. Sergeant Koch testified that Linkous was arrested in December 2011 for processing

Oxycodone. Shorty after Linkous’s arrest, Sergeant Koch approached him about working with

the Sheriff’s department in an effort to investigate the supplier. On February 1, 2012, Linkous

agreed to cooperate with the Sheriff’s office. During the investigation with Linkous, Sergeant
Scioto App. No. 12CA3528                                                                    6


Koch identified Steinhauer and Lopez as possible targets of investigation. Sergeant Koch

directed his attention to Lopez, as the supplier based upon statements made by Linkous.

       {¶ 13} Doctor Bryan Castro, a medical examiner with the Montgomery County Coroner’s

office, testified on behalf of the State as the doctor who performed the autopsy on Lopez. Dr.

Castro testified that the immediate cause of Lopez’s death was the multiple stab and chop

wounds of the head, chest, and abdomen. According to Dr. Castro, a contributing factor at the

moment of his demise was the fire. Dr. Castro testified that while the stab and chop wounds were

sufficient to kill Lopez, the inhalation of the fire was his final injury. Dr. Castro concluded that

the inhalation injuries contributed to Lopez's death, but the immediate cause of death were the

stab and chop wounds.

       {¶ 14} On November 19, 2012, a jury found Steinhauer guilty on all counts. The trial

court sentenced him to life without parole and an additional 29 years in prison. Steinhauer timely

filed this appeal on December 17, 2012.

                                      II. Assignments of Error

                                  A. Self Defense Jury Instruction

       {¶ 15} In his first assignment of error, appellant argues that he was denied due process

pursuant to the Sixth and Fourteenth Amendments when the trial court denied his request that a

self-defense instruction be given to the jury. Appellant contends that he acted in self-defense

when he stabbed Lopez; and he produced sufficient evidence for the instruction to be given. The

State of Ohio argues that appellant and his co-defendants were armed with the knife and hatchet

used to facilitate the crime, when they arrived at Lopez’s residence on the day Lopez died. The

State also argues that the degree of the force used to repel the attack was beyond what was
Scioto App. No. 12CA3528                                                                      7


reasonably necessary. In addition the State contends that thermal inhalation injuries are highly

unlikely when exercising self-defense.

                                         Standard of Review

       {¶ 16} A trial court generally has broad discretion in deciding how to fashion jury

instructions. State v. Hamilton, 4th Dist. Scioto No. 09CA3330, 2011-Ohio-2783, ¶ 69. However,

“a trial court must fully and completely give the jury all instructions which are relevant and

necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v.

Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “Additionally,

a trial court may not omit a requested instruction, if such instruction is ‘a correct, pertinent

statement of the law and [is] appropriate to the facts * * *.’ ” [Alteration sic.] Hamilton at ¶ 69,

quoting Smith v. Redecker, 4th Dist. Athens No. 08CA33, 2010-Ohio-505, ¶ 51, in turn quoting

State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993).

        {¶ 17} “ ‘In determining whether to give a requested jury instruction, a trial court may

inquire into the sufficiency of the evidence to support the requested instruction.’ ” Hamilton at ¶

70, quoting Redecker at ¶ 52; see also Lessin at 494. Therefore, a trial court is vested with

discretion “to determine whether the evidence is sufficient to require a jury instruction * * *.”

State v. Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998); see also State v. Wolons, 44 Ohio

St.3d 64, 541 N.E.2d 443 (1989), paragraph two of the syllabus. “ ‘If, however, the evidence

does not warrant an instruction a trial court is not obligated to give the requested instruction.’ ”

Hamilton at ¶ 70, quoting Redecker at ¶ 52. Thus, “ ‘we must determine whether the trial court

abused its discretion by finding that the evidence was insufficient to support the requested

charge.’ ” Id. “The term ‘abuse of discretion’ connotes more than an error of law or of
Scioto App. No. 12CA3528                                                                    8


judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 18} To establish a claim of self-defense, a defendant generally must show by a

preponderance of the evidence that (1) he or she was not at fault in creating the situation giving

rise to the event, (2) he or she had reasonable grounds to believe and an honest belief that he or

she was in imminent danger of death or great bodily harm and that the only means of escape

from such danger was by the use of force, and (3) he or she did not violate any duty to retreat or

avoid the danger. State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio-42, ¶ 17.

                                              Analysis

       {¶ 19} At the conclusion of the trial, the trial court heard arguments on appellant’s

motion for a jury instruction on self-defense. After listening to both the State’s attorneys and

defense counsel, the trial court denied appellant’s self defense instruction because the first prong

of self defense had not been established. The trial court stated:

       Yeah. He mentions three times in his statement that they had planned ahead of

       time to take care of this-- take care of -- the decedent. Mentions kill at least a

       couple times. Uses the word kill a couple times. So I-- I can’t find that you meet

       the first prong. So there will be no self-defense instruction.

       [Transcript at 719-720.]

In the trial court's reasoning, the court refers to the testimony of Jodi Conkel and her videotaped

interview of the appellant. During the interview, which was played in front of the jury, the

following exchanges took place:

       CONKEL: I understand. So hey you, and Jimmy, and David had a conversation

       about having to get rid of him [Lopez] before he killed you guys? Be honest,
Scioto App. No. 12CA3528                                                                   9


       because they already told me, because I mean, you guys come with a knife and a

       hatchet.

       DEFENDANT: Well, we didn’t know what to expect.

       CONKEL: Right. And I understand that.

       DEFENDANT: And we was thinking about it, I mean- -

       CONKEL: Did you talk about how you guys would do it or - -

       DEFENDANT: No, It just- - I mean, we thought we would, but you know, he

       took the gun back. He had the gun, and - -

       [Transcript at 334.]

       ***

       CONKEL: So you guys basically thought you had to kill him before he killed you

       guys?

       DEFENDANT: Yeah. Well, that’s what I thought anyway.

       [Transcript at 343.]

Detective Conkel also testified about a report she wrote concerning appellant’s thoughts prior to

March 7. The report, marked State’s Exhibit 43 reads: “He [Steinhauer] stated that they had

talked about it for days but had no choice but to get rid of him before he killed them all.”

Detective Conkel testified: “And he also wanted to let me know they had talked about it for days

and days. And they had no choice to kill him before he came after them.”

       {¶ 20} Appellant argues that he produced sufficient evidence to warrant a self-defense

jury instruction. He cites State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, 869 N.E.2d 708

(2nd Dist.), in support of his position that someone engaged in criminal conduct may still act in

self defense. In Turner, the Second District stated: “That [defendant] was engaged in other
Scioto App. No. 12CA3528                                                                         10


criminal conduct when he caused the victim's death is immaterial, so long as his criminal

conduct did not give rise to the affray and he was not the first aggressor.” Appellant also cites

State v. Gillispie, 172 Ohio.App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870, where the court

stated:

          The first prong of the Robbins test for self-defense—that the defendant was not at

          fault in creating the situation giving rise to the affray—does not require a showing

          that the defendant played no part in it. Neither does it preclude the defense if the

          defendant was engaged in criminal conduct when he was attacked. State v. Turner,

          171 Ohio App.3d 82, 869 N.E.2d 708. Rather, it requires a defendant to show that

          he was not “at fault” in creating the situation; that is, that he had not engaged in

          such wrongful conduct toward his assailant that the assailant was provoked to

          attack the defendant.

Appellant contends that his testimony demonstrated that he did not intend on stabbing Lopez on

March 7, 2012 and he was not responsible for the circumstances leading to the stabbing.

          {¶ 21} The State argues that appellant and his “co-defendants” Gerald and Linkous went

to Lopez’s residence armed with the weapons, the hatchet and knife that facilitated Lopez’s

death. The State contends that the evidence demonstrates that Steinhauer warned Linkous that

Lopez wanted him dead on March 7, and that appellant admitted in conversations with Detective

Conkel that the group had discussed killing Lopez prior to March 7. The State also argues that

the force used was not consistent with self-defense, but instead demonstrated a criminal purpose.

          {¶ 22} Our focus here is the first element of self-defense, where a defendant cannot be at

fault in creating the violent situation giving rise to the affray. The affray here, according to

appellant’s testimony, is when Lopez threatens him with a gun to kill Linkous or Lopez would
Scioto App. No. 12CA3528                                                                   11


kill him. Appellant stabs Lopez with a knife that appellant had brought with him. The trial court

ruled that the first prong had not been met because of the evidence concerning Steinhauer,

Linkous and Gerald’s conversations leading up to March 7, 2012 about killing Lopez before

Lopez killed them.

       {¶ 23} The evidence demonstrates that Steinhauer, Linkous and Gerald went on the trip

and they had brought with them the weapons used to facilitate the death of Lopez. The weapons

were the hatchet in the back of the truck and Steinhauer’s knife in the front seat. The evidence

also shows that the trio had prior discussions relating to killing Lopez out of a fear that Lopez

might kill them. Appellant’s testimony, the State’s case, and the evidence presented at trial

demonstrate a close question regarding the first element of self-defense. This question requires

the trial court to weigh the sufficiency of the evidence presented. The trial transcript shows that

the trial court heard argument from both the prosecutor and defense counsel on the inclusion of

the jury instruction. Since the trial court “is vested with discretion to determine whether the

evidence is sufficient to require a jury instruction,” we cannot conclude that the trial court abused

its discretion in refusing to instruct the jury on self-defense. Mitts, supra at 228. Accordingly,

appellant’s first assignment of error is overruled.

                               B. Character Evidence of the Victim

       {¶ 24} In his second assignment of error, appellant argues that he was prejudiced when

the trial court denied the admission of relevant character evidence of the alleged victim.

Appellant contends that the testimony of Lopez’s wife Kelly Lopez contained character evidence

and as a result opens the door for appellant to introduce specific instances of Lopez’s prior

conduct. At trial, appellant sought to introduce specific acts of Lopez’s violence, his prior use

and knowledge of weapons, his aggressive behavior when he drinks alcohol and his prior threats
Scioto App. No. 12CA3528                                                                    12


to his business associates. In summary, appellant argues that the State was able to introduce

specific acts to demonstrate the peacefulness of the victim Lopez, whereas appellant was given

no such opportunity.

       {¶ 25} The State contends that Kelly Lopez did not make any statements during her

testimony regarding the character traits of her late husband. The State submits that character

traits describe someone’s personality, not their abilities. The introduction of threats to others was

offered, according to the State, to suggest that Lopez acted in conformity therewith, which is

specifically barred by Evid.R. 404. The State further argues that on his direct examination,

appellant testified regarding every issue he claims, here on appeal, he was prohibited from

introducing. This includes: (1) testifying that Lopez was a “vicious deprived megalomaniac,” (2)

testifying if Lopez was mad “be damned and watch the horse. Don’t get kicked in the ass,” (3)

testimony claiming that Lopez pointed a gun at multiple individuals, (4) describing Lopez as a

drug dealer and lastly (5) testifying that every time he saw Lopez he was drinking.

                                           Legal Standard

       {¶ 26} “A trial court has broad discretion in the admission or exclusion of evidence, and

so long as such discretion is exercised in line with the rules of procedure and evidence, its

judgment will not be reversed absent a clear showing of an abuse of discretion with attendant

material prejudice to defendant.” State v. Green, 184 Ohio App.3d 406, 2009–Ohio–5199, 921

N.E.2d 276, ¶ 14 (4th Dist.). The term abuse of discretion means more than an error of judgment;

it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. E.g., State v.

Lester, 4th Dist. Vinton No. 12CA689, ¶ 6, citing State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). “A review under the abuse of discretion standard is a deferential review. It is

not sufficient for an appellate court to determine that a trial court abused its discretion simply
Scioto App. No. 12CA3528                                                                  13


because the appellate court might not have reached the same conclusion or is, itself, less

persuaded by the trial court's reasoning process than by the countervailing arguments.” State v.

Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, ¶ 14.

       {¶ 27} Generally, all relevant evidence is admissible. See Evid.R. 402. Evid.R. 401

defines relevant evidence as “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” The trial court must deem relevant evidence inadmissible,

however, if the introduction of the evidence violates the United States Constitution or the Ohio

Constitution, an Ohio statute, the Ohio Rules of Evidence, or “other rules prescribed by the

Supreme Court of Ohio.” Evid.R. 402. Additionally, relevant “evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Evid.R. 403(A).

       {¶ 28} Evid.R. 404, which governs the admission of character evidence, provides:

       (A) 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, or

       evidence of a character trait of peacefulness of the victim offered by the

       prosecution in a homicide case to rebut evidence that the victim was the first

       aggressor is admissible; however, in prosecutions for rape, gross sexual
Scioto App. No. 12CA3528                                                                    14


       imposition, and prostitution, the exceptions provided by statute enacted by the

       General Assembly are applicable.

Evid.R. 405 governs methods of proving character and provides:

       (A) 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 by testimony in

       the form of an opinion. On cross-examination, inquiry is allowable into relevant

       specific instances of conduct.

       (B) Specific instances of conduct

       In cases in which character or a trait of character of a person is an essential

       element of a charge, claim, or defense, proof may also be made of specific

       instances of his conduct.

“Thus, Evid.R. 404(A) generally limits evidence of a person's character, or certain character

traits, subject to certain exceptions. Accordingly, Evid.R. 404(A)(2) permits evidence of ‘a

pertinent trait of character of the victim * * *.’ ” State v. Clay, 4th Dist. Lawrence No. 11CA23,

2013-Ohio-4649, ¶ 37.

       {¶ 29} The Ohio Supreme Court has held 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, 24, 759 N.E.2d 1240 (2002). However, a

defendant is allowed to introduce specific instances of the victim’s prior conduct in order to

establish defendant’s state of mind. State v. Carlson, 31 Ohio App.3d 72, 73, 508 N.E.2d 999

(8th Dist.1986), paragraph one of the syllabus. “These events are admissible in evidence, not

because they establish something about the victim's character, but because they tend to show
Scioto App. No. 12CA3528                                                                    15


why the defendant believed the victim would kill or severely injure him.” Id. The critical issue is

what the defendant knew about the alleged victim at the time of the confrontation. State v. Busby,

10th Dist. Franklin No. 98AP–1050, 1999 WL 710353, * 5 (Sept. 14, 1999). This Court has

previously held as such in State v. Williamson, 4th Dist. Ross No. 95CA2155, 1996 WL 530008

*4 (Sept. 12, 1996) stating:

        Typically, such evidence falls into two general categories: (1) testimony

        concerning the victim and offered to demonstrate defendant's state of mind at the

        time of the incident, and (2) testimony about the victim's character offered to

        prove that the victim was more likely the aggressor. For the first purpose, the

        critical issue is what the defendant knew about the alleged victim at the time of

        the confrontation. For that purpose, a defendant is permitted to testify about

        specific incidents of the alleged victim's violent behavior if the defendant was

        aware of them at the time of the confrontation. The defendant is also permitted to

        testify about what he knew concerning the victim's reputation for violence at the

        time of the confrontation.

        {¶ 30} The aforementioned Barnes decision addressed the second category of testimony

regarding the victim’s conduct in order to prove he/she was most likely the aggressor. While

deciding that a defendant is barred from such testimony, the Barnes court stated in a footnote

that:

        Because Barnes sought to introduce specific instances of Wawrin's conduct to

        prove only that Wawrin was the initial aggressor, we address that sole evidentiary

        concern. We express no opinion here as to whether evidence of specific instances

        of a victim's conduct is admissible for other purposes in a self-defense case. See
Scioto App. No. 12CA3528                                                                  16


       Baker, 88 Ohio App.3d at 211, 623 N.E.2d at 676 (holding testimony of specific

       instances of a victim's conduct admissible to show a defendant's state of mind).

Accordingly, a number of Ohio Appellate Districts, after Barnes, have interpreted Evid.R. 405 as

permitting a defendant to “testify about specific instances of the victim's prior conduct known to

the defendant in order to establish the defendant's state of mind.” State v. Moore, 3rd Dist. Allen

Nos. 1-06-89, 1-06-96, 2007-Ohio-3600, ¶ 59; see also, In re D.N., 195 Ohio App.3d 552, 2011-

Ohio-5494, 960 N.E.2d 1063, ¶ 15 (8th Dist.); State v. Krug, 11th Dist. Lake No. 2008-L-085,

2009-Ohio-3815, ¶ 60; State v. Salyers, 2nd Dist. Montgomery No. 20695, 2005-Ohio-2772, ¶

32; State v. Davis, 5th Dist. Stark No. 2003 CA 429, 2004-Ohio-7056, ¶ 19; State v. Mason, 6th

Dist. Lucas Nos. L-02-1189, L-02-1211, 2003-Ohio-5974, ¶ 36.

                                             Analysis

       {¶ 31} In this case, Kelly Lopez, the victim’s widow, was the State’s first witness. She

testified, “He [Lopez] loved playing soccer. He loved to coach it. He just loved, you know,

playing the game.” She also testified about Lopez’s employment at Savory Foods. The State

introduced Lopez’s resume as its first trial exhibit. The resume included his employment history,

education, his personal interests and achievements. Appellant did not object to Kelly Lopez’s

testimony.

       {¶ 32} It appears that appellant contends that Kelly Lopez’s testimony entitled him to

mention specific instances of Lopez’s prior conduct on his direct examination. However,

appellant is allowed to testify to specific instances of Lopez’s violent behavior that he personally

knew at the time of the March 7, 2012 incident. Williamson, supra at * 4. These specific

instances can only be used to establish appellant’s state of mind. Id.
Scioto App. No. 12CA3528                                                                  17


       {¶ 33} Appellant proffered at trial that he would testify regarding his opinion that Lopez

is aggressive when he drinks alcohol, that he threatens great bodily harm to people who are close

associates of his and that Lopez is familiar with the handling and operation of firearms. The first

issue to appear in appellant’s direct examination concerned Lopez’s ability to operate a firearm.

Appellant’s trial counsel asked appellant the following question during direct examination: “Did

you ever form an opinion as to Mr. Lopez’s knowledge or ability to handle a firearm?”

[Transcript at 546.] The State objected to the question and the parties went to side bar. After the

side bar, the Judge instructed appellant’s trial counsel: “Yeah, don’t bring in any specific

instances. It’s whether he knows whether he can use a gun or not.” [Transcript at 551.]

Appellant’s trial counsel then asked appellant: “To your knowledge, do you know whether Mr.

Lopez knows how to operate a gun? Just --it’s a yes or no. Appellant answered: “Yes, sir.”

[Transcript at 551.]

       A further analysis of appellant’s direct examination shows the following interactions:

       Q. [Appellant’s trial counsel] All right. And do you have an opinion based upon

       that observation of his aggression or peacefulness?

       A. [Appellant] Quite so, yes, sir.

       Q. [Appellant’s trial counsel] All right. And that would be what?

       A. [Appellant] A vicious deprived megalomaniac, sir.

       [Transcript at 552.]

       ***

       Q. [Appellant’s trial counsel] Have --how often have you been around Mr. Lopez

       while he’s drinking?

       A. [Appellant] Every time I seen him he was drinking.
Scioto App. No. 12CA3528                                                                   18


       Q. [Appellant’s trial counsel] All right. How often would he be intoxicated?

       A. [Appellant] That’s hard to tell, sir.

       Q. [Appellant’s trial counsel] Okay. When he - -do you have an opinion as to his

       character while he’s drinking?

       A. [Appellant] I do have an opinion.

       Q. [Appellant’s trial counsel] And that is?

       A. [Appellant] If something pisses him off, be damned and watch the horse.

       [Transcript at 578.]

       ***

       A. [Appellant] I thought he was going to kill me. I mean- -

       Q. [Appellant’s trial counsel] Stop right there. Had you ever seen him point that

       gun at anybody else?

       A. Yes, sir.

       Q. [Appellant’s trial counsel] Who did you see him point that gun at?

       A. [Appellant] Shawn Paxson.

       Q. [Appellant’s trial counsel] Who else?

       A. [Appellant] I’m not sure of his name. It was one of his ethnic friends.

       [Transcript at 587.]

       {¶ 34} The State did not object to any of the aforementioned questions. Examining these

exchanges it appears that appellant was able to present the evidence he offered in his proffer. We

do note that the trial court determined that appellant could not mention “any specific instances,”

when addressing the question of Lopez’s ability to operate a gun. While this may be contrary to

our previous discussion regarding specific instances to show the defendant’s state of mind,
Scioto App. No. 12CA3528                                                                 19


appellant was able to discuss Lopez pointing a gun at multiple individuals without objection by

the State.

        {¶ 35} Appellant is unable to prove prejudice when he was able to testify about the

evidence contained in his proffer. Appellant gave his opinion of Lopez’s aggressive nature when

he drank alcohol, Lopez’s ability to use a firearm, and he was able to mention specific instances

where Lopez pulled a gun on two different individuals. As a result, appellant has not pointed out

any character evidence that the trial court prevented him from presenting to the jury. Therefore,

appellant has failed to prove that he was prejudiced in regards to the admission of character

evidence.

        {¶ 36} Accordingly, appellant’s second assignment of error is overruled.

        {¶ 37} For the foregoing reasons, we affirm the judgment of the Scioto County Court of

Common Pleas.

                                                                       JUDGMENT AFFIRMED.
Scioto App. No. 12CA3528                                                                  20


Harsha, J., concurring:

       {¶ 38} I concur in judgment only on the first assignment of error because I would apply a

different standard of review. I also find a self-defense instruction was not warranted, but for a

reason that differs from the principal opinion.

       {¶ 39} I continue to apply the standard of review set forth in State v. Powell, 4th Dist. No.

96CA2257, 1997 WL 602864 (Sept. 29, 1997) to determine whether a court is required to give a

requested jury instruction. See also State v. Goff, 4th Dist. No. 11CA20, 2013-Ohio-42, ¶ 71-72,

(Harsha, J., concurring).

       {¶ 40} I also conclude the court was correct in not giving a self-defense instruction

because the evidence indicated Steinhauer was engaged in a pre-emptive strike to kill Lopez. In

other words, he failed to present any evidence that he acted out of reasonable belief that he was

in imminent or immediate danger and that the use of force was the only means of escape from

the purported threat that Lopez presented to his safety.

       {¶ 41} In all other regards, I concur in judgment and opinion.
Scioto App. No. 12CA3528                                                                  21


                                      JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion as to Assignment of Error II.
Abele, P.J.: Concurs in Judgment Only as to Assignment of Error I.
Harsha, J.: Concurs in Judgment Only as to Assignment of Error I with Attached Concurring
Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
