State v. Richards

[Cite as State v. Richards, 2012-Ohio-1115.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-00074
STEPHEN J. RICHARDS :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
2010CR360

JUDGMENT: Affirmed in part, vacated in part and
Remanded

DATE OF JUDGMENT ENTRY: March 15, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT
Licking County Prosecutor WILLIAM T. CRAMER
BY: TRACEY VAN WINKLE 470 Olde Worthington Rd., Ste. 200
20 South Second St., 4th Fl. Westerville, OH 43082
Newark, OH 43055
[Cite as State v. Richards, 2012-Ohio-1115.]

Gwin, P.J.

{1} Defendant-appellant Stephen Richards was accused of murdering his

father, Chris Richards, and hiding the body in a burn pit in the backyard of his father's

home. As a result, appellant was charged with felony-murder (R.C. 2903.02(B)) based

on a predicate felony offense of felonious assault (R.C. 2903.11) and gross abuse of a

corpse (R.C. 2927.01(B)).

{2} Chris’ second wife, Tanya Richards testified that they owned the property

at 49 and 45 Madison Avenue in Newark. In June 2010, her daughter Carrie Warner

lived at 49 Madison with her children and her fiancé Carl Meade. Chris and Tanya visited

the houses in Newark and the yard was out of control, so Chris went back on

Wednesday, June 23, to start cleaning up the yard.

{3} On Friday, Carrie awoke around 7:00 or 8:00 a.m. and found Carl playing

a video game, Chris asleep on the couch, and Stephen asleep on the floor. Carl had a

broken jaw from an unrelated incident and was taking medication and not sleeping well,

so he was up all night.

{4} When dinner was ready Friday night, Carrie looked around for Chris, but

could not find him. The last time Tanya spoke with Chris was by cellular telephone that

day around 1:30 p.m. Tanya did not hear from Chris on Saturday. She tried to call him a

couple times, but could not reach him. Later on Saturday, she called Carrie to see if she

had seen Chris. Tanya came to Newark on Saturday. Sunday she called the police to

report a missing person.

{5} Detectives became involved about six days after Chris went missing.

Detectives went to the 49 Madison location and spoke with the residents. They
Licking County, Case No. 2011-CA-00074 3

searched the property and immediately noticed the smell of a dead animal when they

walked through the backyard. They eventually located the source of the smell in the

burn pit.

{6} In the burn pit, they found Chris's body wrapped in a blue tarp that was

tied up with plastic clothesline and some braided rope. He was lying face down, covered

with debris. Several pieces of brick were found wrapped in the tarp with the body. There

was a bottle of Tylenol with codeine in a pocket and the bottle indicated that it was a

prescription for Chris.

{7} The autopsy revealed blunt force trauma to the skull in a shape that was

consistent with the bricks found at the scene. There were also two cutting injuries to the

victim's neck. One cut ran diagonally to the front of the neck and was relatively

superficial. A deeper cut injury occurred on the left side and back of the decedent’s

neck. The victim was alive when the injuries to the neck were inflicted. According to the

coroner, the blow to the head would have been fatal and probably occurred while the

victim's head was stationary, either lying on the ground or against a hard object like a

fence.

{8} In his first interview with the police, appellant confessed that his father

came after him with a knife and he had to punch him and hit him. Appellant said that his

father wanted him to buy some pain pills, but he would not. They were also arguing

about some past things, but appellant did not elaborate. Appellant said he was using a

knife to cut some weeds and he set it down on the jungle gym. The decedent picked up

the knife and came at him. Appellant said that afterwards he panicked, and wrapped the

body up in a tarp and put it into the fire pit.
Licking County, Case No. 2011-CA-00074 4

{9} After the autopsy, the detectives re-interviewed appellant. Appellant

indicated that he believed that the decedent would have taken appellant’s life and that

really hurt him. Appellant recalled that the decedent came at him with the knife up in the

air. Appellant was cut when he blocked the knife. He thought that he put the decedent in

a chokehold. They struggled a bit more, then the decedent took appellant to the ground

Appellant told the police that he felt like his life was at risk. After a few minutes,

appellant said he did not want to talk about it anymore, but they could check back with

him in a few days.

{10} At trial, appellant argued that he was acting under a sudden passion or in

a sudden fit of rage brought on by serious provocation. As a result, the court instructed

the jury on the lesser offense of involuntary manslaughter (R.C. 2903.04(A)) based on a

predicate felony offense of aggravated assault (RC. 2903.12).

{11} The jury rejected the lesser offense and found appellant guilty as charged.

Appellant was sentenced to 15 years to life for murder and a consecutive one-year term

for abuse of a corpse, for a total of 16 years to life.

{12} Appellant raises four Assignments of Error,

{13} “I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE

PROCESS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE I,

OF THE OHIO CONSTITUTION BY EXCLUDING EVIDENCE OF THE VICTIM'S

VIOLENT CHARACTER.

{14} “II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE

PROCESS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE I,
Licking County, Case No. 2011-CA-00074 5

OF THE OHIO CONSTITUTION BY EXCLUDING EVIDENCE OF THE VICTIM'S

DRUG USE.

{15} “III. THE CUMULATIVE EFFECT OF THE FOREGOING ERRORS

DEPRIVED APPELLANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL

UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE I, OF THE

OHIO CONSTITUTION.

{16} “IV. THE TRIAL COURT VIOLATED R.C. 2967.28 BY IMPOSING THREE

YEARS OF POST-RELEASE CONTROL AT SENTENCING ON COUNT TWO.”

{17} In his first assignment of error, appellant maintains that the trial court

committed error in refusing to permit him to admit certain forms of character evidence

associated with the victim, ostensibly to show that the victim was the first aggressor and

the appellant’s state of mind.

{18} Appellant’s argument concerns two witnesses: Tanya Richards, the

victim’s widow and appellant’s stepmother, who testified as a fact-witness for the

prosecution; and Carolyn Wilson, the appellant’s maternal grandmother, who did not

testify, but whose testimony was proffered by the defense.

{19} As part of its case in chief, the prosecution presented the testimony of

Tanya Richards. Mrs. Richards testified as a fact witness. Appellant agrees that at no

time did the prosecution seek to present her as a character witness for any purpose.

However, on cross-examination appellant’s defense counsel sought to question her

regarding her opinion with respect to her deceased husband’s character trait for

peacefulness. The trial court decided that in the absence of some evidence that
Licking County, Case No. 2011-CA-00074 6

appellant had been provoked, or that appellant was acting in self-defense, that the

admission of character evidence was premature and this line of questioning was

aborted.

{20} The state subsequently admitted appellant’s statements to the police in

which appellant claimed the decedent became angry and that appellant believed that

the decedent would have taken his life and that really hurt him. Appellant argues that he

should have been allowed to recall Tanya to the witness stand to ask her about the

decedent's violent character. Specifically, after the prosecution rested, defense counsel

proffered the testimony of Tanya Richards concerning the victim's character.

{21} Tanya testified that she and Chris had been married since 1997. Tanya

testified that Chris "was a person like anyone else. He had his ups and downs." When

pressed further, Tanya indicated that Chris "was not a violent person normally," "[he]

threw fits like anyone else," "But overall he was pretty easy going." At this point

appellant claims that he should be permitted to impeach Tanya with specific instances

of the decedent’s violent character. In particular, the fact that in 2007 Tanya filed

domestic violence charges against the decedent and obtained a civil protection order.

{22} Evid. R. 405 governs the permissible methods for proving character:

(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
Licking County, Case No. 2011-CA-00074 7

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.

{23} Appellant's reliance on Evid. R. 405(B) is mistaken. While appellant

argues this evidence was relevant to show his state of mind and therefore relevant to

his claim of that he acted in a fit of rage or passion, specific instances of conduct are

permitted only when the character trait of a person is an essential element of the claim

or defense.

{24} The Ohio Supreme Court has 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. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759

Ohio St.3d 1240(2002). The Eleventh District Court of Appeals has applied the

reasoning in Barnes in the context of a voluntary manslaughter “defense,” finding that

the trial court did not err in limiting a defendant to reputation or opinion evidence. State

v. Handwork, 11th Dist. No.2002–P–0134, 2004–Ohio–6181, ¶ 70–73; State v. Snyder,

5th Dist. No. 10AP060021, 2011-Ohio-3334.

{25} Further, past incidents or verbal threats do not satisfy the test for

reasonably sufficient provocation when there is sufficient time for cooling off. State v.

Huertas, 51 Ohio St.3d 22, 31-32, 553 N.E.2d 1058, 1068-1069 (1990). See, also, State

v. Pierce, 64 Ohio St.2d 281, 18 O.O.3d 466, 414 N.E.2d 1038 (1980). In this case,

there is no evidence that the past incidents involving domestic violence against Tanya

or Tanya’s obtaining a civil protection order against the decedent provoked appellant

into a sudden passion or fit of rage. Fear alone is insufficient to demonstrate the kind of
Licking County, Case No. 2011-CA-00074 8

emotional state necessary to constitute sudden passion or fit of rage. State v. Mack, 82

Ohio St.3d 198, 201, 1998-Ohio-375, 694 N.E.2d 1368.

{26} Appellant next contends that the trial court erred by excluding the

testimony of his biological grandmother Carolyn Wilson. Ms. Wilson would have testified

that she witnessed the decedent intoxicated, punching holes in walls and turning over

furniture. The court reviewed a transcript of her deposition and noted that she admitted

that she had not seen the decedent for approximately seventeen years. In fact, she had

no knowledge of the relationship between appellant and his father since appellant

became an adult, and had no contact with appellant for six to seven years prior to the

case at bar. The trial court ruled on that basis her testimony was not relevant.

Ordinarily, a trial court is vested with broad discretion in

determining the admissibility of evidence in any particular case, so long as

such discretion is exercised in line with the rules of procedure and

evidence. The admission of relevant evidence pursuant to Evid.R. 401

rests within the sound discretion of the trial court. E.g., State v. Sage

(1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two

of the syllabus. An appellate court which reviews the trial court's

admission or exclusion of evidence must limit its review to whether the

lower court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d

104, 107, 543 N.E.2d 1233, 1237. As this court has noted many times, the

term 'abuse of discretion' connotes more than an error of law; it implies

that the court acted unreasonably, arbitrarily or unconscionably. E.g.,
Licking County, Case No. 2011-CA-00074 9

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482,

450 N.E.2d 1140, 1142.

Rigby v. Lake County (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056(1991).

{27} A reviewing court should be slow to interfere unless the court has clearly

abused its discretion and a party has been materially prejudiced thereby. State v.

Maurer, 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791(1984). The trial court must

determine whether the probative value of the evidence and/or testimony is substantially

outweighed by the danger of unfair prejudice, or of confusing or misleading the jury. See

State v. Lyles, 42 Ohio St.3d 98, 537 N.E.2d 221(1989).

{28} Having reviewed the record that appellant cites in support of his claim that

the error was prejudicial, we find appellant was not prejudiced by the trial court’s

exclusion because Carolyn Wilson’s testimony was too remote to demonstrate the kind

of emotional state necessary to constitute sudden passion or fit of rage.

{29} Appellant’s First Assignment of Error is overruled.

II.

{30} In his Second Assignment of Error, appellant argues the trial court erred

by excluding evidence of various prescription medications found in the victim’s system

at autopsy.

{31} Prior to trial, the prosecution filed a motion in limine seeking to exclude

evidence of the decedent's drug use. The parties signed an agreed entry that provided

that the evidence of drugs in the decedent's system was not relevant and therefore

inadmissible, with the exception of ethanol and the active ingredients of Tylenol with
Licking County, Case No. 2011-CA-00074 10

codeine. The entry permitted defense counsel to raise the issue again at trial if it

became relevant.

{32} At trial, the prosecution presented evidence that the decedent had a

prescription for Tylenol with codeine, a bottle of pills was found in his pocket, and the

decedent’s liver contained the active ingredients of Tylenol with codeine in therapeutic

levels and ethanol in an unknown quantity. Additionally, the coroner explained that

decomposition produces ethanol, and may account for the ethanol that was found in the

decedent’s body.

{33} Before the cross-examination of the coroner, the defense notified the court

that it intended to ask about the other drugs that were found in the decedent's body. The

prosecution countered that there was no evidence that made the other drugs relevant.

{34} The court ruled that the other drugs were irrelevant and inadmissible, but

the parties could review it again depending on the evidence.

{35} Defense counsel subsequently proffered the toxicology report and the

testimony of the coroner. The toxicology report showed that the decedent's body

contained morphine, hydromorphine, hydrocodone, and buspirone. The coroner

explained that the morphine and hydromorphine were byproducts of the Tylenol with

codeine, while the hydrocodone was from a Vicodin prescription and the buspirone was

from a prescription for an anti-depressant called Burspar.

{36} After the proffer, defense counsel again argued that the evidence of other

drugs was relevant. The prosecution countered that the defense wanted the jury to

speculate about the effects of the drugs without any expert testimony to provide

guidance. The defense contended that you do not need an expert to understand that
Licking County, Case No. 2011-CA-00074 11

you do not mix alcohol and prescription drugs. The court sustained its prior ruling that

the other drugs were not relevant.

{37} The prosecution subsequently admitted appellant’s statements to the

police where he indicated that the decedent attacked him because he was using pain

pills and appellant refused to get him more. Defense counsel asked the court to revisit

the issue of the other drugs in light of appellant’s statements. The prosecution

countered that the defense still lacked expert testimony to verify the effect of the drugs.

The court denied the request to revisit the issue.

{38} On appeal, appellant first maintains that the decedent’s use of multiple

prescription painkillers greatly increases the likelihood that the decedent was looking for

pills. In that regard, appellant notes that he had told the police that his father attacked

him when he refused to get him more pain pills. Appellant further maintains that the

combined drug and alcohol use was something that the jury should have been permitted

to consider when determining whether the decedent provoked the assault.