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State v. Herron

Court of Appeals of Ohio, Second District, Montgomery

August 16, 2019

STATE OF OHIO Plaintiff-Appellee
v.
KEASON HERRON Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-2437

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Attorney for Plaintiff-Appellee

          THOMAS J. MANNING, Atty. Reg. No. 0059759, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Keason Herron appeals his conviction for one count of murder (proximate result), in violation of R.C. 2903.02(B), an unclassified felony; one count of felonious assault (serious harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree; two counts of tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), both felonies of the third degree; and one count of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a felony of the third degree. Herron filed a timely notice of appeal with this court on October 1, 2018.

         {¶ 2} The record establishes that on the evening of August 4, 2017, the victim, Leanette Newton, was socializing at a residence located in Dayton, Ohio, on Dearborn Avenue (hereinafter "the Dearborn residence"). The residence in question belonged to the mother of defendant-appellant, Herron. The Dearborn residence had a detached garage that was used by people in the neighborhood as a place to congregate and drink alcohol. Between approximately 4:00 p.m. and 6:00 p.m. that evening, Herron arrived at the Dearborn residence, briefly spoke to Newton, and left shortly thereafter. At some point that evening, Newton also left the Dearborn residence.

         {¶ 3} Here, we note that Newton and Herron had been involved in an "on-off relationship since approximately 2006 or 2007. Herron testified that his relationship with Newton was marked by periods of instability, volatility, and violence from both parties. Herron further testified that his and Newton's alcohol use greatly exacerbated their relationship difficulties. Herron testified that, by August 4, 2017, he and Newton were no longer in a relationship, and Newton had moved all of her personal property out of the residence she previously shared with Herron on Blanche Street in Dayton, Ohio.

         {¶ 4} Later on the night of August 4, 2017, Herron returned to the Dearborn residence and began drinking with others who were present. Eventually, Newton arrived back at the Dearborn residence and also began drinking. Herron testified that, in order to avoid a confrontation with Newton, he immediately left the Dearborn residence and drove to his current girlfriend's apartment, but he was unable to gain entrance. Thereafter, Herron drove to his residence on Blanche Street.

         {¶ 5} After Herron left, Newton remained at the Dearborn residence and continued to drink alcohol for a short time. Kimberly Moss, another individual who was drinking alcohol at the Dearborn residence, testified that at approximately 11:30 p.m., Newton asked Moss for a ride to her mother's house nearby. At Newton's request, Moss drove her vehicle past Herron's residence on Blanche Street. Newton then asked Moss to drop her off at a park located behind Herron's residence.

         {¶ 6} Shortly thereafter, Newton walked over to Herron's residence and began yelling at Herron while they stood in his front yard. Herron testified that he then went inside his house, leaving Newton outside. Herron testified that once he was inside, he observed that it looked as if someone had broken into and ransacked his house. Herron testified that he thought Newton had broken into his house. (We note that the police investigation found that there was no damage to any of the doors or windows in the residence. The police also found that all of the windows were locked the next morning on August 5, 2017.) Herron testified that in order to scare Newton, he picked up a handgun from inside his house, walked outside, and fired four shots into the ground. Herron testified that after he fired the warning shots, Newton yelled at him and walked away. (We note here that the police were unable to find any shell casings in the area where Herron stated that he fired the handgun. Additionally, no handgun was ever recovered by the police during their investigation.)

         {¶ 7} Herron testified that, at this point, he got into his truck and drove over to Newton's mother's residence where Newton was then living. Upon arriving, Herron asked Newton's mother to come to his residence and retrieve her daughter. In the alternative, Herron asked Newton's mother to send Newton's brother over to help. Newton's mother refused to help, so Herron left and drove back to his residence.

         {¶ 8} Herron testified that after entering his residence, he heard a noise behind him and turned around to see Newton walking toward him with a "stick." Herron testified that he ran into his bedroom and retrieved a shotgun from his closet. Herron testified that he ejected the shells out of the shotgun and began to "jab" Newton with the barrel. Admittedly "furious" and "seeing red," Herron struck Newton several times, eventually causing her to fall down on the floor. Herron testified that at this point, he grabbed Newton around her neck and began choking her in an effort to wrest the stick from her hand. Herron testified that after successfully doing so, he hit Newton with the stick and then threw it outside in the yard.

         {¶ 9} Herron testified that Newton remained seated on the floor and began falling asleep. After Newton began to snore, he went into his bedroom and fell asleep for a few hours. When Herron woke up, he observed that Newton had not moved from the position that he last saw her in hours earlier. Herron testified that he then attempted to rouse Newton, but she did not respond.

         {¶ 10} Later that morning, Herron's uncle, Dennis Richardson, drove his truck to Herron's residence for assistance in repairing his lawnmower. Richardson testified that upon arriving at Herron's residence, he observed that the front door was standing open. When Richardson approached the residence, Herron came outside and told Richardson to enter the house. Once the men were inside the house, Herron gestured toward Newton's body and stated to Richardson, "she died on me." Richardson testified that he initially thought that Herron and Newton were playing a joke on him, and he tried to leave the residence. Herron, however, blocked the door and handed Richardson the shotgun, which had been wrapped in a sheet. Herron told Richardson that he was not supposed to have the shotgun. Richardson went outside and placed the shotgun in the bed of his truck.

         {¶ 11} Richardson testified that he then reentered the residence and told Herron to give him a "video camera" in order to prevent Herron from posting anything on social media, as Richardson still believed the whole situation to be a bad prank. Herron then handed Richardson a DVR recording box and a disc containing surveillance video from cameras installed on and around Herron's residence. Richardson went back outside, placed the surveillance items in the bed of his truck, and drove home. Richardson testified that once he reached his residence, he removed Herron's shotgun and surveillance gear from his truck and put the items in his garage. Richardson testified that he believed that Herron would call when and if he needed the items.

         {¶ 12} After Richardson left, Herron walked down the street to a nearby convenience store where he encountered William Wagner, his stepfather's brother. Wagner testified that he was at the store to purchase some items for another relative while he was on a break from his job at the VA Hospital. Herron approached Wagner and asked to use his cellphone. Wagner handed Herron his cellphone. Herron testified that he then used Wagner's cellphone to call 911 as he walked back toward his residence. Herron was immediately arrested and taken into custody when the police and other emergency personnel arrived at his residence.

         {¶ 13} Shortly thereafter, Dayton Police Officer Craig Stiver was dispatched to Herron's residence to take photographs of the crime scene. Officer Stiver took photographs of a long metal bar that had been placed on top of an animal cage, a crowbar retrieved from the kitchen, bloodstains in the hallway and on the door to Herron's bedroom, and bloodstains on Herron's bedroom dresser, stereo cabinet, pillow, and bedsheets. Stiver also photographed bloodstains on and around the toilet in the bathroom.

         {¶ 14} On August 10, 2017, Herron was indicted for one count of murder, one count of reckless homicide, and one count of felonious assault. At his arraignment on August 15, 2017, Herron appeared and pled not guilty to the charged offenses.

         {¶ 15} On August 30, 2017, Herron filed a motion to suppress any statements he made to the police after being arrested and taken into custody. The trial court held a hearing on the motion to suppress on December 15, 2017. On January 12, 2018, the trial court overruled in part and sustained in part Herron's motion to suppress.

         {¶ 16} On April 10, 2018, the State filed two motions in limine. In the first liminal motion, the State sought to limit or exclude testimony and other evidence related to the defense's invocation of the Castle Doctrine. In its second liminal motion, the State sought to exclude any evidence regarding specific past instances of domestic violence allegedly instigated by Newton against Herron. The trial court overruled the State's motion related to the Castle Doctrine; however, the trial court granted the State's motion related to Newton's past conduct.

         {¶ 17} On July 5, 2018, Herron was charged in a "B" indictment with two counts of tampering with evidence, and one count of having weapons while under disability. The "B" indictment was based upon the State's discovery of the shotgun and DVR equipment that Herron had given to Richardson to hide. On August 9, 2018, Herron filed a jury waiver with respect to the charge of having weapons while under disability.

         {¶ 18} A three-day jury trial was held on the remaining counts on August 20-22, 2018. At trial, Montgomery County Coroner's Office forensic pathologist Dr. Susan Allen testified that she had performed an autopsy on Newton on August 5 and 6, 2017. Dr. Allen testified that Newton's cause of death was a combination of blunt force trauma and strangulation. Dr. Allen testified that she found several bruises on Newton's face and head, as well as several circular or semi-circular bruises across Newton's entire body, including her arms, abdomen, and back. Dr. Allen also testified that Newton suffered deep cuts to her jaw, left ear lobe, lips, and the back of her head. Significantly, Dr. Allen testified that Newton had a broken left leg, a broken left arm, and five broken ribs. Lastly, Dr. Allen testified that Newton presented with petechiae on her eyes, which are broken blood vessels indicating that she had been strangled. Dr. Allen testified that, based on the extent of Newton's injuries, she would have lost a great deal of blood and suffered swelling of her brain.

         {¶ 19} Following his jury trial, Herron was found guilty of murder, felonious assault, and both counts of tampering with evidence. The trial court separately found Herron guilty of having weapons while under disability. The State dismissed the charge of reckless homicide. The trial court merged Herron's convictions for murder and felonious assault, with the State electing to proceed to sentencing for the murder charge. On September 11, 2018, the trial court sentenced Herron to 15 years to life in prison for murder, three years in prison for each count of tampering with evidence, and three years in prison for having weapons while under disability. The trial court ordered the two counts of tampering with evidence to be served concurrently to one another, but consecutively to the remaining counts. The trial court also ordered that Herron's conviction for having weapons while under disability be served consecutively to the other counts, for an aggregate sentence of 21 years to life in prison.

         {¶ 20} It is from this judgment that Herron now appeals.

         {¶ 21} Herron's first assignment of error is as follows:

THE TRIAL COURT ERRED BY BARRING EVIDENCE AND/OR TESTIMONY AT TRIAL CONCERNING THE VICTIM'S HISTORY OF VIOLENT AND THREATENING CONDUCT, WHICH SHOULD HAVE BEEN ADMISSIBLE IN REGARD TO APPELLANT'S SELF-DEFENSE CLAIM.

         {¶ 22} In his first assignment, Herron contends that the trial court erred when it excluded any testimony or other evidence regarding specific instances of Newton's history of domestic violence with Herron that he argues would have been relevant to his self-defense claim. We note that, at the close of evidence, defense counsel made a proffer to the trial court of four separate police incident reports wherein Herron was identified as the victim of assaults allegedly perpetrated by Newton.

         {¶ 23} " The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.' * * * A trial court abuses its discretion when it make a decision that is unreasonable, arbitrary, or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 24." State v. Williams, 2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17.

         {¶ 24} During trial, Herron asserted that he acted in self-defense in order to avoid convictions for the charged offenses. To establish self-defense, the defendant must show the following: (1) that he was not at fault in causing the altercation; (2) that he "had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was" the use of force; and (3) that he did not violate the duty to retreat or avoid danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.

         {¶ 25} Evid.R. 401 through 403 define relevance and identify it as the threshold standard for admissibility. Evid.R. 404(A) provides that, though it may be relevant, "[e]vidence 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." "The term 'character' refers to a generalized description of a person's disposition or a general trait such as honesty, temperance, or peacefulness. Generally speaking, character refers to an aspect of an individual's personality which is usually described in evidentiary law as a 'propensity.'" Weissenberger's Ohio Evidence Treatise, Section 404.3 (2009 Ed.).

         {¶ 26} Pertinent to the instant case, Evid.R. 405 then sets forth two methods by which character may be proved -- opinion and reputation, and specific acts evidence -and when each type is admissible. That rule provides as follows:

(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.

         {¶ 27} The State argues that the Ohio Supreme Court's holding in Barnes indicates that a defendant cannot offer proof of specific instances of the victim's character to prove the defendant's state of mind at the time of the offense. In Barnes, the issue was framed as "whether a defendant who asserts self-defense may introduce evidence of specific instances of conduct by the victim to show that the victim was the initial aggressor * * *." Barnes, 94 Ohio St.3d at 21, 759 N.E.2d 1240. On this issue, Barnes held that "[a] defendant asserting self-defense cannot introduce evidence of specific instances of a victim's conduct to prove that the victim was the initial aggressor." Id. at syllabus. Barnes further stated:

It is undisputed that a defendant can introduce character evidence by reputation or opinion testimony under Evid.R. 405(A). See, e.g., State v. Baker, 88 Ohio App.3d 204, 210-211, 623 N.E.2d 672, 676 (1993). But Evid.R. 405(B) is more narrowly drawn. Thus, the relevant inquiry in this case is whether a victim's character or character trait is an essential element of self-defense. If the proof or failure of proof of the victim's character would not be dispositive of an element of ...

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