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State v. Murray

Court of Appeals of Ohio, Seventh District, Mahoning

December 30, 2019

STATE OF OHIO, Plaintiff-Appellee,
BRIAN MURRAY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16-CR-973

         JUDGMENT Affirmed.

          Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          Atty. Louis M. DeFabio, for Defendant-Appellant.

          BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


          ROBB, J.

         {¶1} Defendant-Appellant Brian Murray appeals from his conviction in Mahoning County Common Pleas Court of felonious assault. Four arguments are presented in this appeal. First, Appellant contends the trial court erred in permitting the state's rebuttal witness when the witness was not disclosed prior to trial. Second, Appellant contends the "words alone" jury instruction was improper. Third, he asserts trial counsel was ineffective for failing to request a jury instruction on aggravated assault, an inferior degree offense of felonious assault. Lastly, he argues the conviction for felonious assault is against the manifest weight of the evidence. For the reasons expressed below, the conviction for felonious assault is affirmed.

         Statement of the Facts

         {¶2} On July 14, 2016, at the Home Depot in Boardman, Ohio, Appellant hit Gabriel Matthews multiple times in the head with a closed fist causing a skull fracture and bilateral subdural hematoma, intracranial bleeding, and frontal subarachnoid hemorrhage. Tr. 190. This resulted in Appellant being charged with R.C. 2903.11(A)(1)(D), felonious assault, a second-degree felony. 9/22/16 Indictment.

         {¶3} The case proceeded through discovery and trial. At trial, Appellant testified and asserted self-defense. The state called an undisclosed rebuttal witness, David Asher. Appellant objected and primarily argued the witness was presenting improper character evidence. The trial court overruled the objection and allowed the witness to testify.

         {¶4} The jury found Appellant guilty of felonious assault. Appellant was sentenced to seven years in prison. Appellant timely appealed from his conviction.

         First Assignment of Error

         "The trial court erred in permitting testimony from the State's rebuttal witness as said witness and the nature of his testimony had not been disclosed to Appellant prior to trial and his testimony constituted improper evidence as to Appellant's credibility."

         {¶5} This assignment of error concerns the testimony of David Asher, the state's rebuttal witness. In short, Appellant testified at trial he was afraid for his life and that is why he punched Gabriel Matthews repeatedly. David Asher testified on rebuttal that sometime in Spring 2016, Appellant told him he was not afraid of Gabriel Matthews.

         {¶6} Two arguments are presented under this assignment of error. Appellant contends the state failed to provide notice of David Asher as a witness pursuant to Crim.R. 16. The second argument is that David Asher's testimony is improper character testimony.

         {¶7} The state counters arguing Crim.R. 16 was not violated and even if it was the trial court did not abuse its discretion in allowing the witness to testify because Appellant was provided adequate time to examine the witness prior to him testifying. Furthermore, the state asserts the arguments at trial concerning the rebuttal witness primarily focused on whether his testimony would amount to improper character evidence, not a violation of Crim.R. 16. As to whether the evidence was improper character evidence, the state asserts the testimony refuted Appellant's statement that he was afraid and accordingly, was proper rebuttal testimony.

         {¶8} The admission of evidence is within the discretion of the trial court and the court's decision will only be reversed upon a showing of abuse of discretion; a trial court enjoys broad discretion when determining the admissibility of evidence. State v. Barnes, 94 Ohio St.3d 21, 23, 759 N.E.2d 1240 (2002); State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, ¶ 21. "The term 'abuse of discretion' * * * 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). "[W]hen applying this standard, an appellate court is not free to substitute its judgment for that of the trial judge." Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). With that standard in mind, we will now address Appellant's arguments.

         1. Crim.R. 16(I)

         {¶9} The state is correct that Appellant did not clearly raise a Crim.R. 16 argument at trial as a reason for excluding David Asher's testimony; instead, Appellant's arguments were based primarily upon Evid.R. 404 and improper character testimony. Tr. 320-323, 325-326. There was no mention of Crim.R. 16. However, Appellant's counsel did state, "the state was well aware of what he could testify to and had that knowledge and failed to present that knowledge to me until last night." Tr. 323. Potentially this is sufficient to assert a failure to disclose Crim.R. 16(I) argument.

         {¶10} Crim.R. 16(I) reads, in its relevant part: "Each party shall provide to opposing counsel a written witness list, including names and addresses of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal." Crim.R. 16(I).

         {¶11} "The criterion for determining whether the state should have provided the name of a witness called for rebuttal is whether the state reasonably should have anticipated that it was likely to call the witness, whether during its case in chief or in rebuttal." State v. Lorraine, 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993). A prosecutor does not have "a duty to provide the names of witnesses that he reasonably did not anticipate would testify until testimony was presented by appellant which was then properly rebutted." Id. If a party fails to comply with Crim.R. 16, the trial court may order the noncomplying party to permit discovery or inspection, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or any other order that is just under the circumstances. Crim.R. 16(L)(1); State v. Ross, 2018-Ohio-3027, 118 N.E.3d 371, ¶ 28 (10th Dist.).

         {¶12} Given the above, Crim.R. 16 places a burden on the state to disclose the name of witnesses it reasonably anticipates calling in rebuttal. However, a failure to disclose does not necessarily mean the trial court abuses its discretion when it permits the witness to testify.

         {¶13} In the appellate brief, the state argued it did not reasonably anticipate calling David Asher until Appellant testified.

         {¶14} Appellant's testimony asserted self-defense. Appellant testified that in October, about nine months prior to this incident, Gabriel Matthews threatened him and told him he would burn his house down and kick his "ass." Tr. 285. Appellant then kept his distance from the victim. Tr. 287. According to Appellant when Gabriel Matthews approached Appellant in Home Depot in July 2016, he had his hands up in a confrontational manner and said, "What's up now." Tr. 282. Appellant testified he hit Gabriel Matthews at the Home Depot in July 2016 because he feared for his life. Tr. 287, 294, 299.

         {¶15} David Asher testified that he saw Appellant at a laundromat in Spring 2016. Tr. 337. Asher stated that Appellant told him Gabriel Matthews owed Appellant money and if Matthews did not pay Appellant, Appellant would "beat him [Matthews] down." Tr. 337-338. Appellant told Asher he was not scared of Gabriel Matthews. Tr. 338.

         {¶16} The record in this case indicates Appellant's counsel had the opportunity to interview Asher the night before he testified. Tr. 320-323. The record indicates counsel knew exactly what Asher's testimony would be. Tr. 320-323.

         {¶17} The state's assertion that it did not reasonably anticipate the need to call David Asher until Appellant testified may be valid. A defendant asserting self-defense is not required to notify the state of the intention to assert that defense. This is different from an alibi defense which specifically requires the state to be notified. Crim.R. 12.1. That said, it seems suspect that the state implies it was not aware of the assertion of self-defense. The state probably should have erred on the side of caution and disclosed Asher's name during discovery. However, that does not mean the trial court abused its discretion in allowing the testimony. As stated above, Appellant's counsel clearly had the opportunity to interview Asher and knew the content of his testimony before he testified. This was a sufficient remedy to neutralize any harm, if there was a violation of Crim.R. 16(I). Furthermore, a Crim.R. 16(I) argument was not clearly asserted. Therefore, it is difficult to conclude, based on Crim.R. 16(I) that the trial court abused its discretion in allowing Asher to testify.

         {¶18} For those reasons, any argument that a Crim.R. 16(I) violation warrants reversal fails. The trial court did not abuse its discretion in allowing David Asher to testify.

         2. Character evidence

         {¶19} As stated above, the primary argument asserted by Appellant at trial for the exclusion of Asher's testimony was Evid.R. 404 improper character evidence. Appellant reasserts that argument and ...

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