Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 16-CR-973
Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
Louis M. DeFabio, for Defendant-Appellant.
BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite,
OPINION AND JUDGMENT ENTRY
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.
of the Facts
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.
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.
The jury found Appellant guilty of felonious assault.
Appellant was sentenced to seven years in prison. Appellant
timely appealed from his conviction.
Assignment of Error
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
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.
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
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.
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
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)
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).
"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.).
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.
In the appellate brief, the state argued it did not
reasonably anticipate calling David Asher until Appellant
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.
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.
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.
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.
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.
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 ...