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State v. Glenn

Court of Appeals of Ohio, Second District, Montgomery

June 15, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DALE A. GLENN Defendant-Appellant

          Trial Court Case No. 2016-CR-821 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., BY ANDREW T. FRENCH, ATTY. REG. NO. 0069384, MONTGOMERY COUNTY PROSECUTOR'S OFFICE, APPELLATE DIVISION, MONTGOMERY COUNTY COURTS BUILDING, 301 WEST THIRD STREET, 5TH FLOOR, DAYTON, OHIO 45402 ATTORNEY FOR PLAINTIFF-APPELLEE

          ADAM J. ARNOLD, ATTY. REG. NO. 0088791, 120 WEST SECOND STREET, SUITE 1502, DAYTON, OHIO 45402 ATTORNEY FOR DEFENDANT-APPELLANT

          OPINION

          FROELICH, J.

         {¶ 1} Dale Anthony Glenn was found guilty by a jury in the Montgomery County Court of Common Pleas of three counts of murder and two counts of felonious assault, each of which included a firearm specification, and one count of having weapons while under disability. After merger of some of the offenses, Glenn was sentenced to an aggregate term of 21 years to life in prison. He appeals from his conviction, challenging several of the trial court's pretrial rulings. For the following reasons, the trial court's judgment will be affirmed.

         Facts and Procedural History

         {¶ 2} On March 8 and 9, 2016, Glenn went to several bars with a friend, Kendall Mabry; they arrived at the K-9 Club after 1:30 a.m. on March 9. Around 2:00 a.m., the victim, "Michael, "[1] who was known to Glenn, also arrived at the K-9 Club. Almost immediately, Glenn and Michael got into a physical altercation, and Glenn was thrown out of the bar by K-9 Club security personnel. Glenn went back to his car, waited several minutes, then pulled up to the front door of the club. In the meantime, Glenn's friend and others got into a fight with Michael inside the club, which eventually spilled out into the parking lot. Glenn then shot Michael several times, killing him.

         {¶ 3} On March 18, 2016, Glenn was indicted on three counts of murder (purposeful, proximate result - serious harm, and proximate result - deadly weapon), two counts of felonious assault, and two counts of having weapons while under disability. Each of the counts of murder and felonious assault contained a firearm specification. One of the counts of having weapons while under disability was later dismissed at the State's request.

         {¶ 4} Glenn filed numerous pretrial motions in which he asserted that his act of shooting Michael was directly linked to his (Glenn's) discovery a few months earlier that Michael had raped Glenn's four-year-old daughter and had infected her with a sexually transmitted disease (STD). According to Glenn, his daughter had been diagnosed with gonorrhea in November 2015. The girl's mother suspected Michael "as the perpetrator and transmitter of the STD, " because he (Michael) was the only male who had "access" to the daughter in the relevant time frame and because the child had allegedly identified Michael to Glenn as the perpetrator. According to Glenn, Michael had also informed Glenn's daughter's mother, with whom Michael was in a relationship, that he (Michael) had an STD for which he was being treated. The matter was allegedly still under investigation at the time of the shooting.

         {¶ 5} Glenn filed pretrial motions to suppress identification evidence and to have the coroner test or examine Michael for STDs. The motion for STD testing included the allegations discussed above: that Michael may have transmitted an STD to Glenn's daughter, who had identified Michael as the perpetrator, and that such sexual contact was related to Glenn's motive for the killing. The motion further stated that medical records (which were not attached to the motion and are not in the record) showed that the child "had contracted gonorrhea from an adult male." Finally, the motion stated that whether Michael had "an STD similar to the one" Glenn's daughter had was "relevant and material to the defense." Glenn subsequently filed additional motions for 1) testing of Michael's DNA or bodily fluid, again aimed at determining the presence of any STDs; 2) production of Michael's medical records; and 3) production of investigative materials from the prosecutor's office and the police department related to any investigation of Glenn's daughter's rape allegations. The State opposed all of these motions.

         {¶ 6} Glenn also filed a pretrial motion for expert witness fees for a psychological expert to evaluate Glenn for "personality disorders or violent propensities" which "show the mitigating factors" to support a finding that he committed voluntary manslaughter, rather than murder. The State also opposed this motion, but the motion was granted.

         {¶ 7} On December 5, 2016, the trial court filed an order which barred the presentation of certain evidence at trial, including psychological evidence related to Glenn's state of mind at the time of the shooting and evidence of Michael's medical records or criminal history with potential relevance to his motive. Before trial, the trial court also made it clear to the parties that it would not give a jury instruction on voluntary manslaughter.

         {¶ 8} The case was tried to a jury on May 22-24, 2017. The jury found Glenn guilty on all counts, including the firearm specifications. The trial court merged the three counts of murder; it also merged the two counts of felonious assault with the murder and merged all of the firearm specifications. Glenn was sentenced to 15 years to life for murder, with a three-year firearm specification, and to 36 months for having weapons while under disability, for an aggregate term of 21 years to life.

{¶ 9}
The trial court abused its discretion in granting pre-trial motions based upon fact which improperly impeded [his] constitutional right to testify on his own behalf and consequently have evidence presented at trial to permit a voluntary manslaughter jury instruction. We understand this argument to be that the trial court erred in excluding evidence which might have supported a voluntary manslaughter instruction and in failing to give such a jury instruction.

         Voluntary Manslaughter

         {¶ 10} R.C. 2903.03 defines the crime of voluntary manslaughter as follows:

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another***

         {¶ 11} Voluntary manslaughter is an inferior offense of murder, because "its elements are * * * contained within the indicted offense, except for one or more additional mitigating elements." State v. Beatty-Jones, 2d Dist. Montgomery No. 24245, 2011-Ohio-3719, ¶ 21, citing State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 722 (1992); State v. Terrion, 9th Dist. Summit No. 25368, 2011-Ohio-3800, ¶ 11, quoting State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 294 (1988). "The mitigating element * * * is that the defendant acted 'while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force.' " Beatty-Jones at ¶ 21, quoting R.C. 2903.03(A) (voluntary manslaughter).

         {¶ 12} The test for voluntary manslaughter includes both an objective and a subjective component.

First -- the objective factor -- a fact-finder must determine whether a serious provocation occurred and whether that provocation was "sufficient to arouse the passions of an ordinary person beyond the power of his or her control." State v. Shane,63 Ohio St.3d 630, 635, 590 N.E.2d 272 (1992). Second - the subjective factor -- the fact-finder must evaluate whether "this actor, in this particular case, actually was under the ...

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