Caseflicks

Ohio Supreme Court • 2002

State v. Barnes

94 Ohio St. 3d 21 | 759 N.E.2d 1240

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Takeaway

In short, this case limits proof of a victim’s violent character in self-defense cases to reputation or opinion evidence when offered to show initial aggression, and it holds that an incorrect instruction is not reversible plain error when the governing law was unsettled at trial.

Background

At a party in Kent, Ohio, Marcus Barnes argued and then fought with other guests, including Christopher Wawrin and Christopher DeAngelis. Barnes stabbed both men; Wawrin died days later. Barnes was indicted for murder in Wawrin’s death and attempted murder for stabbing DeAngelis. He claimed self-defense on both counts.

Barnes sought to introduce evidence of Wawrin’s prior violent acts to show that Wawrin was the initial aggressor. The trial court excluded evidence of particular prior incidents, though it allowed character evidence concerning Wawrin’s violent propensity in the forms permitted by the evidence rules. The court also instructed the jury, without objection, on involuntary manslaughter as a lesser included offense of murder and felonious assault with a deadly weapon as a lesser included offense of attempted murder.

The jury convicted Barnes of involuntary manslaughter for Wawrin’s death and felonious assault for the DeAngelis stabbing. The Eleventh District reversed both convictions, holding that the trial court wrongly excluded Wawrin’s specific prior violent acts, wrongly treated deadly-weapon felonious assault as a lesser included offense of attempted murder, and improperly imposed consecutive sentences. The Ohio Supreme Court accepted the case to resolve conflicts concerning the evidentiary and lesser-included-offense questions.

Issues

Issue #1

Whether a defendant claiming self-defense may introduce specific instances of the victim’s prior violent conduct, unknown to the defendant, to prove that the victim was the initial aggressor.

Holding

No. Evid.R. 405(B) bars proof through specific acts because the victim’s character is not an essential element of self-defense.

Reasoning

Evid.R. 404(A)(2) permits an accused to offer evidence of a pertinent character trait of the victim. But Evid.R. 405 controls the permissible form of that proof. Under Evid.R. 405(A), character may generally be proved through reputation or opinion testimony; specific instances are allowed only on cross-examination or when character itself is an essential element under Evid.R. 405(B).

Ohio self-defense requires the defendant to show that he was not at fault in creating the confrontation, that he reasonably and honestly believed he faced imminent death or great bodily harm and could escape only by using force, and that he complied with any duty to retreat. A victim’s violent character may be relevant to the surrounding circumstances, but no element of self-defense requires the defendant to prove the victim’s character.

The court distinguished between a fact that may be useful evidence and an essential element of a defense. A defendant can establish self-defense even against a victim with a peaceful reputation, if the circumstances gave the defendant a bona fide and reasonable belief that unlawful force was imminent. Conversely, proving that a victim was generally violent does not itself establish self-defense.

Because Barnes offered Wawrin’s prior acts solely to show that Wawrin acted consistently with a violent character and was the first aggressor, Evid.R. 405(B) excluded that form of proof. The trial court therefore acted within its discretion in excluding the specific incidents. The court expressly did not decide whether specific acts might be admissible for another self-defense-related purpose, such as proving the defendant’s state of mind when the defendant knew of them.

Issue #2

Whether felonious assault with a deadly weapon under R.C. 2903.11(A)(2) is a lesser included offense of attempted murder.

Holding

No. Under the statutory-elements test, attempted murder can be committed without committing deadly-weapon felonious assault.

Reasoning

Under State v. Deem, one offense may be lesser included in another only if it carries a lesser penalty, the greater offense as statutorily defined can never be committed without the lesser offense also being committed, and the greater offense has at least one element not required for the lesser offense.

Deadly-weapon felonious assault requires knowingly causing or attempting to cause physical harm by means of a deadly weapon or dangerous ordnance. Attempted murder requires purposely engaging in conduct that, if successful, would cause another person’s death.

The Deem inquiry compares the statutory offenses in the abstract, not the facts of the particular prosecution. Although Barnes allegedly attempted to kill DeAngelis by stabbing him, attempted murder may be committed without a deadly weapon. Thus, attempted murder does not invariably include every element of R.C. 2903.11(A)(2).

The trial court consequently erred by instructing the jury that deadly-weapon felonious assault was a lesser included offense of attempted murder.

Issue #3

Whether the erroneous lesser-included-offense instruction was plain error requiring reversal when Barnes did not object at trial.

Holding

No. The instruction was erroneous, but the error was not plain because Ohio law had not definitively resolved the question and appellate courts were divided at the time of trial.

Reasoning

A defendant who fails to object to a jury instruction forfeits ordinary review and must establish plain error under Crim.R. 52(B). Plain-error review requires an actual legal error, an error that was obvious or plain, and an error affecting substantial rights, ordinarily meaning that it affected the trial’s outcome.

The court agreed that the instruction was legally mistaken under Deem. But an error is not plain merely because an appellate court later determines that it was wrong. At the time of Barnes’s trial, the Ohio Supreme Court had not answered this precise lesser-included-offense question, and Ohio appellate decisions conflicted.

That unsettled state of the law meant the trial judge’s instruction was not an obvious defect at the time it was given. Without a plain error, the reviewing court could not recognize the forfeited claim, and it need not decide whether the instruction affected Barnes’s substantial rights.

The court also emphasized that even when all requirements for plain error are met, Crim.R. 52(B) gives appellate courts discretion rather than a duty to correct the error. Courts should exercise that discretion only with utmost caution, in exceptional circumstances, and to prevent a manifest miscarriage of justice.

Concurrences

Justice Lundberg Stratton

Reasoning

Justice Lundberg Stratton agreed that Barnes could not use specific prior acts of Wawrin to prove initial aggression. She also agreed that Barnes’s felonious-assault conviction should stand because Barnes did not establish plain error.

She disagreed, however, with the majority’s conclusion that the jury instruction was legally erroneous. In her view, the statutory-elements approach drawn from Deem and Kidder produces unjustifiably artificial results when it ignores the way the charged crime was actually committed.

She would decide whether one offense is lesser included in another by considering both the statutory definitions and the facts of the particular case. On that approach, deadly-weapon felonious assault could be a lesser included offense of attempted murder where, as here, the alleged attempted murder was committed with a knife.

Justice Lundberg Stratton reasoned that a fact-sensitive approach would better reflect practical reality and avoid forcing the state to separately indict every conceivable related offense. Given the stabbing, she regarded it as clear that DeAngelis had been feloniously assaulted and concluded that treating the offense as lesser included better served the administration of justice.

Dissents

Justice Pfeifer

Reasoning

Justice Pfeifer disagreed with both parts of the majority’s decision. On the evidence issue, he read Evid.R. 405(B) to allow specific instances of conduct when they provide evidence of an essential element of a defense, rather than only when the victim’s character itself is a formal, definitional element of that defense.

Under that reading, evidence of Wawrin’s violent conduct could help establish that Barnes was not at fault in creating the confrontation, an essential element of self-defense. Justice Pfeifer believed the majority’s narrower reading effectively made specific-act evidence unavailable in self-defense cases and also threatened to foreclose its use to prove the defendant’s state of mind, despite the majority’s stated reservation of that issue.

Justice Pfeifer also agreed that deadly-weapon felonious assault is not a lesser included offense of attempted murder under Deem. But he believed the mistake was plainly obvious: applying Deem’s syllabus and comparing the statutory elements directly led to the same conclusion the majority reached.

Because the trial court’s legal mistake was, in his view, clear and outcome-significant, Justice Pfeifer would have held that it was plain error and would have affirmed the court of appeals’ reversal.