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State v. Gray

July 16, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MARION GRAY, JR. DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 07-CR-560-D.

The opinion of the court was delivered by: Gwin, P.J.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed

{¶1} Defendant-appellant Marion Gray, Jr. appeals from his convictions and sentences in the Richland County Court of Common Pleas on one count of murder, one count of felonious assault, one count of "physical harm" robbery, and one count of "force" robbery. Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On Friday, March 9, 2007, James Malone and his girlfriend, Kamala Snelling drove to Mansfield, Ohio where they planned to have dinner. On the way, Mr. Malone decided to stop at the B.P. gas station located at Longview Boulevard and North Main Street to buy beer and cigarettes. Mr. Malone got out of the car and went into the convenience store. As she waited in the car, Ms. Snelling saw appellant walk around the driver's side of her car. He was standing with his back to her, and she thought that he was having a conversation with someone in another car. Mr. Malone returned with his purchases and placed them in the car. He then reached into his pocket and pulled out his money to give Kamala twenty dollars. At that time, appellant turned around, reached through the driver's side window, and grabbed several twenty-dollar bills from Mr. Malone's hand. Kamala testified that appellant and Mr. Malone struggled, grabbing at each other's arms; however, appellant was able to rip the money out of Mr. Malone's hands, scratching Mr. Malone's hands in the process. During the struggle, appellant had the upper half of his body inside the car in an unsuccessful attempt to steal Ms. Snelling's purse. Kamala testified that she was able to break up the fight and get appellant out of her car by putting the car in reverse. Appellant withdrew when the car coasted backwards, yelling "[r]un me over, you fucking bitch." (1T. at 275). Kamala was yelling at James Malone to leave the scene because she was scared that appellant might have a gun. Mr. Malone put the car in drive and pulled out of the B.P. parking lot. However, he became angry over the theft of his money, and decided to get his money back from appellant. Mr. Malone made a U-turn in the road and pulled back into the B.P. parking lot.

{¶3} Sometime around 10:00 p.m., Amber Kanz and Rodney Iceman stopped at the B.P. station. Mr. Iceman got out of the car to go to the convenience store. While Amber was waiting in the car, appellant got into the passenger side of the car and demanded her purse. When she refused, appellant tried to take it from her. Ms. Kanz testified that she grabbed her purse and pulled back. At the same time, she was yelling in an attempt to get Mr. Iceman's attention. Mr. Iceman ran back to the car, and pulled appellant out. The two men briefly fought before Amber Kanz honked her car horn, scaring appellant into leaving.

{¶4} Amber testified that after the confrontation between Rodney Iceman and appellant, she backed her car out of the parking space. However, before she left the parking lot, she saw James Malone and Kamala Snelling pulling into the gas station. Rodney Iceman yelled Mr. Malone's name, but was unable to get his attention. They saw Mr. Malone park his car, get out, and engage in a confrontation with appellant.

{¶5} Kamala Snelling testified that appellant approached Mr. Malone as soon as he got out of the car. At that time, Kamala heard Mr. Malone say that he wanted his money back. Appellant and James Malone then began to argue and push each other until they were standing behind Ms. Snelling's car. At some point during this confrontation, Amber Kanz approached Kamala Snelling to ask what was going on. She stated that she planned to call the police; however, she did not make the call because Mr. Iceman said that he had warrants out for his arrest. Tracy Cox, another bystander, also witnessed this confrontation between appellant and Mr. Malone, and, at one point, told the convenience store clerk to call the police.

{¶6} Kamala Snelling, Amber Kanz, and Tracy Cox all testified that they saw appellant punch Mr. Malone several times in the head before he fell and hit his head on the pavement. Ms. Snelling testified that the first punch knocked Mr. Malone onto his hands and knees. As he struggled to get back up, appellant punched him a second time on the forehead. This blow threw Mr. Malone back, causing him to strike his head hard on the pavement.

{¶7} Amber Kanz testified that appellant punched Mr. Malone in the head, knocking him down. Appellant punched Mr. Malone again as he tried to get up, causing Mr. Malone to strike his head on the pavement.

{¶8} Tracy Cox testified that appellant was "beating the tar" out of James Malone. She indicated that the second or third punch knocked Mr. Malone off his feet, and she heard his head smack on the pavement.

{¶9} Kamala Snelling testified that as she ran over to where Mr. Malone was laying, she heard appellant yell "I think I killed that son of a bitch." (1T. at 280). At that point, Tracy Cox testified that she saw appellant run over to the open driver's side door of the victim's car, reach under the seat and grab something. As bystanders attempted to help Mr. Malone, appellant jumped into a waiting car and fled the scene. Amber Kanz and Rodney Iceman also left before police arrived because they thought Mr. Malone would be okay.

{¶10} Appellant did not argue that he acted in self-defense or that he was provoked; rather he testified that the decedent slipped and fell causing the injury to his head. (4T. at 975-976; 979-980; 980-981; 988; 992; 1015). Appellant denied ever striking Mr. Malone.

{¶11} Mr. Malone was unresponsive after the incident, and never regained consciousness. He was transported to Med Central Hospital were emergency surgery was performed in an attempt to reduce the swelling on his brain. However, due to his massive head injuries, Mr. Malone was ultimately declared brain dead and was removed from life support on March 15, 2007. An autopsy revealed injuries consistent with Mr. Malone being struck in the face with massive force before falling and hitting his head on the pavement. Forensic Pathologist Dr. William Cox testified that the blow to the face alone caused sufficient damage to result in Mr. Malone's death.

{¶12} Appellant was initially arrested on a warrant for felonious assault. After Mr. Malone's death, he was indicted by the Richland County Grand Jury on one count of aggravated robbery, one count of robbery alleging that he caused physical harm to James Malone while committing a theft offense, one count of robbery alleging that he used force against Amber Kanz while attempting to commit a theft offense, one count of felonious assault, and one count of felony murder.

{¶13} The jury found appellant guilty of the physical harm robbery of James Malone, the force robbery of Amber Kanz, the felonious assault of James Malone, and the murder of James Malone. He was acquitted on the charge of aggravated robbery. The trial court sentenced appellant to seventeen years to life.

{¶14} Appellant timely appeals and raises the following five assignments of error:

{¶15} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTION'S MOTION IN LIMINE, PREVENTING THE DEFENSE FROM INTRODUCING RELEVANT EVIDENCE OF THE VICTIM'S PRIOR CRIMINAL RECORD.

{¶16} "II. APPELLANT'S CONVICTIONS ON THE CHARGES OF MURDER, FELONIOUS ASSAULT, AND ROBBERY ARE CONTRARY TO THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE PRESENTED AT TRIAL, THUS DENYING DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.

{¶17} "III. THE TRIAL COURT DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW IN ITS DENIAL OF APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

{¶18} "IV. APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND U.S. CONSTITUTIONS, AS A RESULT OF THE INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM COUNSEL'S FAILURE TO RENEW HIS MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE AND IN HIS COUNSEL'S LIMITATION OF HIS MOTION FOR JUDGMENT OF ACQUITTAL TO THE CHARGE OF MURDER.

{¶19} "V. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING TESTIMONY OF PRIOR CONSISTENT STATEMENTS OF A PROSECUTION WITNESS."

I.

{¶20} In his first assignment of error, appellant challenges the trial court's exercise of its discretion in excluding evidence of the decedent's violent character, offered in the form of testimony concerning the decedent's prior conviction for a 1979 felony drug possession, a 1984 conviction for obstructing official business, misdemeanor convictions for driving while intoxicated, and disorderly conduct, a 1999 conviction for assault on a peace officer and a 2001 conviction for having a weapon while under disability, in support of his claim that a robbery did not occur; rather this was a drug deal gone bad.

{¶21} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173, paragraph two of the syllabus. Therefore, we will not disturb a trial court's evidentiary ruling unless we find the trial court abused its discretion. State v. Martin (1985), 19 Ohio St. 3d 122, 129. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157.

{¶22} Every criminal defendant has a constitutional right to present a meaningful defense. Crane v. Kentucky (1986), 476 U.S. 683, 690, 106 S.Ct. 2142. However, this right does not engender an unfettered entitlement to the admission of any and all evidence. U.S. v. Scheffer (1998), 523 U.S. 303, 308, 118 S.Ct. 1261.

{¶23} Evid. R. 404 and 405 govern the matters of when and how character evidence may be adduced in support of a claim of self-defense. Evid. R. 404 provides in part:

{¶24} "(A) Character evidence generally

{¶25} "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions:

{¶26} " * * *

{¶27} "(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; * * *.

{¶28} "(B) Other crimes, wrongs or acts.

{¶29} "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

{ΒΆ30} Thus, Evid.R. 404 provides that character evidence is admissible for some limited purposes. Evid.R. 405 then sets forth two methods by which character may be proved-opinion and reputation, and specific acts ...


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