[Cite as State v. Teater, 2019-Ohio-143.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 27753
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-4016
                                                  :
 DANIEL TEATER                                    :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 18th day of January, 2019.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
     Attorney for Defendant-Appellant

                                            .............
                                                                                             -2-


HALL, J.

       {¶ 1} Defendant Daniel Teater appeals his conviction for felonious assault. He

alleges that the trial court erred by limiting his cross-examination of a prosecution witness.

We find no error, and we affirm.

                             I. Facts and Procedural History

       {¶ 2} Teater was indicted in January 2017, on one count of felonious assault

(serious harm), in violation of R.C. 2903.11(A)(1), after he inflicted life-threatening injuries

on Brian Caldwell. Teater claimed self-defense and testified in support of his defense.

The evidence presented to a jury established the following facts.

       {¶ 3} In December 2016, Caldwell, Teater, David Bendig, and some others, were

renovating an empty residence in Dayton owned by Javon House. The renovations

apparently had been going on for some time. Bendig testified that he had been working

on the house for eight or nine months. It seems that House often hired people with drug

problems and paid them in cash and drugs. Teater admitted that he was addicted to

opiates and said that House gave him drugs every day. Bendig too testified that House

sometimes paid him with drugs. Caldwell lived in the house at the time and kept an eye

on things. He also oversaw the renovations. By all accounts, Caldwell was a demanding

boss and was often not pleasant to work with.

       {¶ 4} Around 1:30 p.m. on Friday, December 23, Teater showed up to work. Only

Caldwell was at the house. At some point that afternoon, Teater and Caldwell had a fight

in the pool room (that is, the room with the pool table). According to Teater, Caldwell

attacked him, doing some kind of choke move. Teater said that he was able to get away

and grab a heavy object that he believed was a chair leg. Teater used the object to hit
                                                                                          -3-


Caldwell in the head. Teater claimed that after he hit Caldwell once, he ran out of the

house. There were no tools found in the pool room, and the only furniture was the pool

table.

         {¶ 5} House stopped at the property that night and found Caldwell lying on the floor

of the pool room. House saw injuries on Caldwell’s face and smelled alcohol on him, so

he assumed that Caldwell had been in a fight and was drunk and sleeping it off. House

then called Bendig, who came over. He too thought that Caldwell was drunk and just

sleeping it off. The next day, Saturday, House returned to the property expecting Teater.

Teater never showed up. Caldwell was still lying on the floor. House assumed that he was

still hung over. Bendig came over and thought that Caldwell’s condition appeared about

the same. On Sunday, Caldwell was still lying on the floor. Because he had not improved,

House, Bendig, and a third man carried him out of the house, put him in Bendig’s truck,

and drove him to the hospital. House left his name and phone number and Caldwell’s

name, but House lied and said that they had found Caldwell in an alley. House said that

he lied to protect Teater. House explained that Teater was a good worker who always

showed up, so when he did not show up for work on Saturday, House suspected that

Teater and Caldwell had gotten into a fight.

         {¶ 6} Because Caldwell’s injuries were so severe, the hospital contacted the

police. That night, police brought Bendig and House in for questioning. House quickly told

the interviewing detective all he knew. During the interview, the detective had House

make a recorded phone call to Teater and ask him what had happened. Teater initially

said that he walked in on Caldwell and a guy named “Tony” “doing something they weren’t

supposed to” and that Caldwell came at him and choked him. (Tr. 359). Teater said that
                                                                                             -4-


he hit Caldwell in the head with a pipe. He said that when he left the house, he did not

know if Caldwell was alive.

       {¶ 7} A couple days later, Teater was brought in for questioning. He admitted to

the detective that there was no Tony, “that he had made that up because he was hoping

to throw Javon [House] off and maybe make him think that Tony had done it.” (Id. at 372).

Teater said that when he arrived at the house, Caldwell immediately “started picking on

him.” (Id. at 370). Caldwell then attacked him and choked him twice. The second time,

Teater said that he grabbed an object, possibly an old table leg, and hit Caldwell twice.

Teater then left. Teater’s testimony at trial was similar. He said that Caldwell blocked his

first swing but that his second swing connected with Caldwell’s head.

       {¶ 8} Because Teater asserted self-defense, evidence of his and Caldwell’s size

was presented. Teater testified that he was six-foot-one and, at that time, about 134

pounds. However, a detective testified that when Teater was booked into jail he was listed

as 160 pounds. (Tr. 546) As for Caldwell, the evidence showed that he stood about five-

foot-eight. But the evidence of Caldwell’s weight varied widely. House testified that he

and Caldwell were “about the same size” and that he (House) weighed 240 pounds. (Tr.

211). House said that Caldwell was “way stronger” (Id. at 210) and “way more physically

fit” (Id. at 211). Teater testified that Caldwell was twice his size, “[s]olid muscle,” probably

weighing 230 or 240 pounds. (Id. at 503). But Bendig estimated Caldwell’s weight at only

170 pounds. (Id. 250). He agreed that Caldwell was physically fit but denied that he could

have weighed 230 or 240 pounds. (Id. 253). A police officer testified that, according to jail

records from six months before the fight, Caldwell reported that he weighed 165 pounds.

Lastly, hospital records from two days after the assault listed Caldwell’s weight as a little
                                                                                          -5-


over 148 pounds.

       {¶ 9} Teater inflicted life-threatening injuries on Caldwell, breaking bones in almost

every part of his head, 1 according to a treating physician. No injuries were found

anywhere else on Caldwell’s body. A physician testified that it was unlikely that one blow

to the head would have caused so much damage. Indeed, according to the physician,

given the amount of damage, Caldwell was likely hit several times with a blunt object. In

stark contrast, Teater had no visible injuries and did not claim that he had been injured in

the fight.

       {¶ 10} The jury rejected Teater’s claim of self-defense and found him guilty. The

trial court sentenced him to six years in prison.

       {¶ 11} Teater filed a request to file a delayed appeal, which we granted.

                                        II. Analysis

       {¶ 12} The sole assignment of error alleges:

              The Trial Court erred by limiting the opportunity to cross-examine a

       prosecution witness on his ability to perceive and remember facts

       accurately.

       {¶ 13} On cross examination, defense counsel directed Bendig’s attention to the

night he was interviewed by police, about two days after the assault. Defense counsel

asked Bendig whether he was “dope sick” on that night. Bendig answered, “No.” (Tr. 239).



1 After Caldwell was brought to the hospital, he was transferred to a trauma center
because his injuries were so serious. Caldwell could not feed himself or swallow and
eventually received a feeding tube. After being discharged from the hospital, Caldwell
was transferred to a rehabilitation center. At that time, he could not dress himself or make
day-to-day decisions. In March 2017, Caldwell’s mental ability remained severely
diminished, and he had no concept of reality.
                                                                                          -6-


The trial court overruled the state’s objection. Then defense counsel asked, “Back when

this happened were you—back in December were you using drugs?” (Id. at 240). The

state again objected, and the trial court called a sidebar.

              The state: “Your Honor, there’s no relevant testimony that he’s using

       drugs. There’s nothing to go into as far as—well, his ability to (indiscernible)

       that kind of thing. Whether or not he was under the influence at the time it

       has no relevance as to what happened on December 23rd, 2016.”

              Trial court: “Response?”

              [Defense] Counsel: “During his interview he was dope sick, he fell

       asleep when the cops left. He fell asleep once the officer left the room. He

       kept falling over. He said he was dope sick, and—”

              The state: “But what’s the relevance of that?”

              Counsel: “Because I don’t think he’s going to testify to the same

       things he said today that he did that day.”

              Trial court: “Well, he surely can go into the substance of his proper

       statement. If he said anything inconsistent with what he is now saying on

       the witness stand, of course, you can go into the substance of it. Was

       there—is there a specific inconsistency that you’re attempting to establish

       on cross?”

              Counsel: “I don’t know yet.”

              Trial court: “Well, I mean, if you can, then it’s relevant to go into the

       prior statement, but I’m not hearing * * * the relevance, and the fact that

       when he was interviewed he happened to be dope sick. But again, if he,
                                                                                          -7-


       within that statement he made something that’s inconsistent with what he’s

       now saying, that’s traditional impeachment.

(Tr. 240-241). For the remainder of Bendig’s testimony, defense counsel said nothing

more about Bendig’s drug use, being under the influence of drugs, or being “dope sick.”

       {¶ 14} The trial transcript reveals that Teater did not preserve the assigned error

on the grounds that he argues on appeal. Here, Teater argues that the trial court should

have permitted inquiry into Bendig’s drug use because counsel could have elicited

testimony that impeached Bendig’s testimony about Caldwell’s weight based on “[a]

defect of * * * ability * * * to observe, remember, or relate,” Evid.R. 616(B). But defense

counsel did not say anything about the relevance of Bendig’s testimony on Caldwell's

weight or size at the sidebar. In fact, Bendig was not even asked about Caldwell’s weight

on direct or cross-examination. On re-direct, the State first asked Bendig about Caldwell’s

height and weight. Defense counsel then inquired about Caldwell’s size on re-cross. It is

clear that defense counsel did not say anything about wanting to show a defect in

Bendig’s ability to observe Caldwell’s height or weight at the time of the sidebar relating

to whether Bendig was gererally using drugs in December. Counsel said only that inquiry

was relevant because Bendig’s testimony at trial might be different than what he said at

the police interview. Counsel’s explanation and the trial court’s comments suggest that

counsel sought to impeach Bendig’s credibility by self-contradiction. See Evid.R. 616(C).

Bendig’s drug use does not seem relevant to this type of self-contradiction. An argument

could be made that counsel was intending to impeach Bendig’s credibility by showing a

defect in his ability to observe Caldwell’s size. Regardless, that is not how the trial court

understood counsel’s argument. The court plainly was not directed to potential
                                                                                           -8-


impeachment based on a sensory defect under Evid.R. 616(B), and the questioning about

height or weight was not raised at that time.

       {¶ 15} In essence, because Teater did not make this contention in the trial court,

he is raising this issue for the first time on appeal, which he may not do. He has forfeited

all but plain error as to the issue he raises here. Compare State v. Hodge, 2d Dist.

Montgomery No. 7315, 1982 WL 3731, *4 (May 5, 1982) (refusing to consider appellant’s

argument that impeachment of his testimony violated his due-process rights, because

that was not the ground given for objection at trial and appellant was raising

the argument for the first time on appeal); State v. Knott, 4th Dist. Athens No. 03CA30,

2004-Ohio-5745, ¶ 9 (holding that “[b]ecause counsel’s objection did not apprise the [trial]

court of this specific argument, we believe a plain error analysis of the issue is

appropriate”). Because Teater does not argue plain error here, we need not consider

it. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-

20 (appellate court need not consider plain error where appellant fails to timely raise plain-

error claim). However, even if we were to consider plain error, Teater has not established

it. To prevail on a claim of plain error, Teater must show that the trial court plainly erred

by limiting cross-examination and that but for the error the outcome of the trial clearly

would have been otherwise. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-

1942, 13 N.E.3d 1051, ¶ 69.

       {¶ 16} We believe that the trial court’s limitation was reasonable at the time that

the objection was made, defense counsel never revisited the issue when Bendig’s

perception of height or weight was later introduced, and even if it had been readdressed,

the trial court would not have abused its discretion under Evid. R. 403(A) by excluding a
                                                                                             -9-


generalized reference to use of drugs. Even if the evidence were admissible, on this

record, the jury still would have rejected Teater’s self-defense claim.

       {¶ 17} Cross-examination is “permitted on all relevant matters and matters

affecting credibility.” Evid.R. 611(B). Still, the “ ‘extent of cross-examination with respect

to an appropriate subject of inquiry is within the sound discretion of the trial court.’ ” State

v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993), quoting Alford v. United

States, 282 U.S. 687, 691, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931). Teater argues that

inquiry into Bendig’s drug use would have elicited testimony that strengthened his claim

of self-defense, specifically, the affirmative defense’s second element, which requires the

defendant to prove that 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 was the use of force.”

State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). The test for self-

defense is “a combined subjective and objective test.” Id. at 330. There must be

reasonable grounds (objective) for the defendant’s belief that he was in imminent danger

(subjective).

       {¶ 18} Teater claimed that he believed that he was in imminent danger of harm

from Caldwell. Assuming that the jury believed him, Teater also had to prove that this

subjective belief was objectively reasonable. At that point in the trial, House had testified

that Caldwell weighed 240 pounds, and Bendig had testified that Caldwell weighed only

170 pounds. Teater argues that asking Bendig about his drug use would have elicited

testimony that called into question his testimony about Caldwell’s weight, because

Bendig’s drug use during December affected his ability to perceive accurately Caldwell’s

weight. Teater’s contention is that, if others perceived Caldwell as weighing 240 pounds,
                                                                                          -10-


then it was more reasonable for him to believe that Caldwell was going to hurt him. But

Bendig’s testimony on Caldwell’s weight would not have been called into question even

if he had used drugs in the month of the assault and the drug use affected his ability to

perceive Caldwell’s weight at that time. Bendig testified that he and Caldwell had both

been working together for eight or nine months before the assault, so Bendig’s perception

of Caldwell’s weight and size was based on many months of seeing Caldwell.

       {¶ 19} Lastly, even if the trial court erred by limiting cross-examination, that error

did not affect the outcome of the trial. There is no reasonable probability that permitting

inquiry into Bendig’s drug use would have led the jury to accept Teater’s claim of self-

defense. The credibility of Bendig’s perception of Caldwell’s weight was supported by his

testimony that he had been working with Caldwell for several months. Furthermore, other

evidence of Caldwell’s weight undermined House’s and Teater’s testimony. A police

officer testified that jail records from six months before the assault showed that Caldwell

self-reported weighing 165 pounds, and hospital records listed Caldwell’s weight two days

after the assault as just over 148 pounds.

                                      III. Conclusion

       {¶ 20} The sole assignment of error is overruled. The judgment of conviction is

affirmed.

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



TUCKER, J., concurs.

DONOVAN, J., concurring:

       {¶ 21} I agree that the restriction of cross examination of Bendig did not affect the
                                                                                        -11-


outcome of this trial since Bendig was not an eyewitness to the felonious assault which

led to Caldwell’s injuries. Hence, Bendig was not in a position to support or undermine

Teater’s claim of self-defense. However, he was in other respects a critical witness for

the State of Ohio. Thus, in my view, the trial court erred in limiting cross examination of

Bendig regarding his drug use during the otherwise relevant time frames. Nevertheless

on this record, the error did not prejudice Teater.




Copies sent to:

Mathias H. Heck
Heather N. Jans
Stephen P. Hardwick
Hon. Dennis J. Langer
