State v. Fisk

[Cite as State v. Fisk, 2021-Ohio-1973.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee/Cross- : Appellate Case No. 28798
Appellant :
: Trial Court Case No. 2019-CR-2718
v. :
: (Criminal Appeal from
ZACARY L. FISK : Common Pleas Court)
:
Defendant-Appellant/Cross- :
Appellee

...........

OPINION

Rendered on the 11th day of June, 2021.

...........

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee/Cross-Appellant

STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Ohio Public Defender, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant/Cross-Appellee

.............

EPLEY, J.
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{¶ 1} Defendant-Appellant Zacary L. Fisk was found guilty by a jury of two counts

of felonious assault. After merging the offenses, the trial court sentenced Fisk to an

indefinite term of two to three years in prison. On appeal, Fisk argues that the trial court

erred by not allowing him to present evidence of the victim’s alleged past violent acts in

support of his self-defense claim. The State has filed a cross-appeal in which it contends

that the trial court erred when it did not order restitution to the victim. For the reasons that

follow, the trial court judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} In August 2019, Steven Patton lived at 1212 Old Main Street in Miamisburg,

a three-bedroom home he shared with his fiancée Cyrena Brown, their daughter Casey

Patton, and Cindy Wood, Brown’s mother. In addition, from time-to-time, Brown’s then-

19-year-old son from a previous relationship, Defendant Zacary Fisk, stayed there.

Because all the bedrooms were taken, Fisk had a makeshift room in the garage.

{¶ 3} On August 15, 2019, Patton arrived home from work around 9 a.m. He was

sitting on the couch watching television when Fisk asked him to go out to the garage

because Fisk had a “surprise” for him. Patton was not concerned because Fisk was

smiling, and Patton figured it was a belated birthday present.

{¶ 4} Patton entered the garage followed by Fisk. Patton noticed that it was

unusually dark, but that did not raise any concerns, and similarly, red flags were not raised

when Fisk requested that he close his eyes. The next thing Patton knew, he was hit in the

back of the head with a hammer and was on the ground. After getting his senses back,

Patton noticed that his right arm was covered with blood. He then realized that he was
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being attacked by Fisk and that Fisk had a knife.

{¶ 5} A brawl ensued. Patton testified that while the two were wrestling for control

of the knife, Fisk continued to “drill the knife” at him. Eventually, Patton managed to

dispossess the weapon from Fisk, and he tossed it to another part of the garage so Fisk

could not inflict any more injuries.

{¶ 6} With the knife out of reach, Patton tried to escape. He could not open the

door, though, because his hands were covered with blood, and the slippery nature of his

skin made it too difficult to turn the knob. Patton’s inability to leave the garage gave Fisk

the opportunity to mount a second attack. This time, Fisk tackled him from behind, and

the two landed on a couch. Now with scissors in hand, Fisk attacked Patton further,

stabbing him with the new weapon.

{¶ 7} Once again, Patton was able to disarm Fisk. Patton testified that after the

scissors were removed from the skirmish, he was able to turn the tables. Patton grabbed

Fisk by the neck and punched him in the face several times, causing him to abandon the

assault. Patton was then able to escape.

{¶ 8} Dazed and losing blood, Patton made his way through the house and onto

the porch, where he called 911. Miamisburg Police Officer Megan Slupe was the first on

scene after receiving a call of a stabbing and a warning that the suspect was still in the

house. When she arrived, Patton was “saturated with blood from the top of his head all

the way down,” and Officer Slupe testified that Patton had a difficult time making his way

to her due to his injuries. Officer Slupe observed stab wounds to Patton’s arms, neck, and

head. Officer Brandon Mundy, who arrived soon after Officer Slupe, testified that when

he pulled up, the first thing he noticed was a male sitting on the porch covered in blood.
 -4-

{¶ 9} Patton was taken by ambulance to Kettering Medical Center where he was

treated by trauma surgeon Dr. Steven Santanello. Dr. Santanello testified that when

Patton arrived in the emergency room, he had multiple stab wounds and blood about his

face, chest, and belly. The doctor considered these life-threatening injuries and was

particularly concerned about the neck wound and the stab wound to Patton’s left flank

(the side of the abdomen).

{¶ 10} After an initial assessment, Patton was taken to surgery to determine the

severity of his abdominal wound. The operation discovered a laceration to his colon, but

by and large, Patton’s vital organs escaped major damage. The next focus was the neck

wound. Doctors again endeavored on an exploratory surgery which, this time, determined

there was damage to Patton’s salivary gland, but his vascular structures, trachea and

esophagus were found to be unscathed. In addition to the internal damage, Patton was

treated for superficial lacerations to his hands, fingers, and arms. Patton testified that he

was in the hospital for roughly a week and was out of work for a month because of the

attack.

{¶ 11} After Patton was transported to the hospital, Officer Mundy turned his

attention to Fisk, who was still in the garage. Officer Mundy began giving commands with

his cruiser’s bullhorn for Fisk to exit the garage. Other officers soon arrived, and a

perimeter was set up around the property. Officers continued to order Fisk out of the

garage for over 30 minutes with no success, until finally, the garage door opened, Fisk

emerged, and he was taken into custody without incident. After he was handcuffed, Fisk

told officers, “He tried to kill me.”

{¶ 12} Fisk was not completely uninjured in the altercation and was transported
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(with an escort from Officer Mundy) by ambulance for treatment of superficial lacerations

to his hands, fingers, arms, and legs. Officer Mundy testified that he almost immediately

informed Fisk of his Miranda rights, and the two began talking. Fisk told the officer that

he and Patton had gotten into a verbal altercation and then Patton “came out with a knife.”

Officer Mundy testified that Fisk could not tell him what they argued about but did say

Fisk explained that he was able to disarm Patton thanks to “years of martial arts training.”

{¶ 13} Kyle Vincent, a firefighter paramedic at the Miami Valley Fire District, was

in the ambulance as well. He testified that Fisk initially told Officer Mundy that he was

attacked, but “[t]hroughout the transport, he change[d] his story multiple times. And by

the time we got to the hospital, he ended up saying that the victim didn’t have a weapon

and that he wasn’t initially attacked.” Trial Tr. at 523. Vincent’s testimony matched what

Officer Mundy told the jury – that Fisk told him Patton was unarmed for much of the

altercation and that, at one point, he was on top of Patton stabbing him. When asked why

he was harming an unarmed man, Fisk reportedly said, “it was life or death; and bitch, it

wasn’t going to be me.”

{¶ 14} Fisk was treated at the hospital for superficial wounds to his right thigh, one

of his fingers, his thumb, and “a laceration or abrasion” to his leg. The wounds required

sutures and were non-life threatening.

{¶ 15} On August 26, 2019, Fisk was indicted on one count of attempted murder

and two counts of felonious assault.

{¶ 16} Prior to the start of trial, the State filed a motion in limine, seeking to keep

Fisk from introducing evidence relating to specific instances of Patton’s past conduct and

alleged propensity for violence. The court overruled the motion but held that “Fisk may
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introduce evidence of Mr. Patton’s specific instances of past violent conduct if such

conduct was directed towards Fisk or if Fisk was present and observed the incidents.”

{¶ 17} The jury trial began on March 2, 2020 and included testimony from eight

witnesses for the State over the course of two days, including Officers Slupe and Mundy,

detectives, medical personnel, forensic scientists, and Patton. Fisk did not testify and

called no witnesses. His attorney argued that the State’s evidence supported a self-

defense claim.

{¶ 18} After deliberation, the jury found Fisk guilty of both counts of felonious

assault but acquitted him on the charge of attempted murder. The court ordered a

presentence investigation report and set sentencing for April 13, 2020. Both parties filed

sentencing memoranda.

{¶ 19} At the sentencing hearing, the court stated that it had considered the

sentencing memoranda from both sides, letters in support of Fisk, Patton’s victim impact

letter, and medical bills submitted by Patton. Patton also gave a victim impact statement

at the hearing. The lengthy speech outlined the physical and emotional issues created by

the attack, threats received from Fisk’s side of the family, and the $177,179.58 medical

bill that, he claimed, the Veterans Administration would not pay.

{¶ 20} Citing his lack of an adult record and familial support, the trial court

sentenced Fisk to an indefinite prison term of two to three years on the merged felonious

assault counts. The court then rejected Patton’s $177,179.58 restitution request, stating

“I need something more from the Veterans Administration relative to potential coverage,

noncoverage, the reason that coverage of any kind was declined.” It then advised Patton

to apply to the Ohio Crime Victims Compensation Fund and/or “pursue a civil remedy,
 -7-

civil action against Zacary Fisk for compensation.”

{¶ 21} The State objected to the court’s decision on restitution, noting that Patton

had provided medical bills indicating the cost of medical treatment, and that it was

unnecessary to provide a reason why the VA declined the coverage.

{¶ 22} On May 11, 2020, Fisk filed his appeal from his conviction; the State cross-

appealed challenging the trial court’s refusal to order restitution.

II. Self-defense claim

{¶ 23} In his lone assignment of error, Fisk claims that limiting the admission of

evidence regarding Patton’s alleged violent past-acts was an error by the court and

negatively impacted his ability to mount a self-defense claim.

{¶ 24} A trial court has broad discretion to admit or exclude evidence. State v. Issa,

93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). “Unless the trial court has abused its

discretion, an appellate court will not disturb a trial court’s decision concerning the

admission of evidence.” State v. Salyers, 2d Dist. Montgomery No. 20695, 2005-Ohio-

2772, ¶ 18. “Abuse of discretion has been defined as an attitude that is unreasonable,

arbitrary, or unconscionable. It is to be expected that most instances of abuse of discretion

will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark No. 2011-CA-21, 2012-Ohio-

2664, ¶ 24.

{¶ 25} Fisk’s defense was based on his claim that he acted in self-defense. To

establish self-defense, it must be established that (1) he was not at fault in creating the

violent situation; (2) that he had a bona fide belief that he was imminent danger of death

or great bodily harm and his only means of escape from that harm involved the use of
 -8-

force; and (3) that he did not have a duty to retreat or avoid the danger. State v. Barnes,

94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).

{¶ 26} The second prong, that he had a bona fide belief that he was in imminent

danger, is where Fisk focuses his argument, and he argues that his state of mind at the

time of the incident was crucial. He reasons that, because he was aware of previous

instances of violence in Patton’s past, he was afraid, thus creating a bona fide belief that

he was in imminent danger. The Rules of Evidence offer some guidance for our analysis.

{¶ 27} In general, “[e]vidence of a person’s character or a trait of his character is

not admissible for the purpose of proving that he acted in conformity therewith on a

particular occasion.” Evid.R. 404(a). In other words, it does not necessarily follow that

because a person acted violently in the past, he acted violently in the present situation.

{¶ 28} As with many things in the law, however, there are exceptions. Evid.R.

404(a)(2)(B) provides that the accused may offer evidence of the alleged victim’s

character in some self-defense scenarios. One such instance is that an accused may

claim that his knowledge of the alleged victim’s violent character and acts contributed to

his reasonable belief that the immediate use of force was necessary to protect himself.

“These events are admissible in evidence, not because they establish something about

the victim’s character, but because they tend to show why the defendant believed the

victim would kill or severely injure him.” State v. Carlson, 31 Ohio App.3d 72, 508 N.E.2d

999 (8th Dist.1986), paragraph one of the syllabus.

{¶ 29} In this case, in response to the State’s motion in limine which sought to bar

all mention of Patton’s past violent acts, the court held that Fisk could only introduce

evidence of Patton’s alleged bad acts that had been directed toward Fisk or if Fisk had
 -9-

observed the incident. This ruling was an error.

{¶ 30} We have previously held that “a defendant asserting self-defense may

testify about specific instances of the victim’s prior violent or aggressive conduct which

was known to the defendant in order to establish the defendant’s state of mind.” State v.

Eng, 2d Dist. Montgomery No. 14015, 1994 WL 543277, *9 (Sept. 30, 1994). Other

appellate courts have held similarly. State v. Smith, 10 Ohio App.3d 99, 101 460 N.E.2d

693 (10th Dist.1983) (defendant’s knowledge that the victim had committed an act of

violence on another party, even though that knowledge was learned through hearsay,

was relevant to the defendant’s belief that he was in imminent danger of death or great

bodily harm); United States v. Saenz, 179 F.3d 686, 688-89 (9th Cir.1999) (“A defendant

claiming self-defense may show his own state of mind by testifying that he knew of the

victim’s prior acts of violence.”). As a result, we find that the trial court erred when it

permitted Fisk to only introduce evidence of Patton’s alleged violent acts if they were

perpetrated against Fisk or observed by him. Fisk’s knowledge of Patton’s alleged past

violent acts should have been admitted to support his self-defense claim.

{¶ 31} This result, however, does not end the inquiry, as the trial court’s ruling is

subject to harmless error analysis. See Salyers at ¶ 33 (finding the trial court’s erroneous

exclusion of evidence was harmless). “When performing harmless error analysis, an error

is deemed harmless if it did not affect the defendant’s ‘substantial rights.’ ” State v. Smith

3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 20, quoting Crim.R. 52(A). The Ohio

Supreme Court has stated that to affect the substantial rights of the accused, “‘the error

must have been prejudicial: It must have affected the outcome of the court proceedings.’ ”

State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United
 -10-

States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

{¶ 32} In this case, despite the error made by the trial court, the outcome of the

trial would not have been different, and we find the court’s error to have been harmless.

The evidence presented clearly demonstrated that Fisk did not act in self-defense.

Testimony indicated that he lured Patton into a dark garage by promising a surprise, told

him to close his eyes, locked the door behind him, and then proceeded to strike Patton in

the head with a hammer. Fisk then stabbed Patton repeatedly with a knife. After Patton

was able to remove the knife from Fisk and toss it aside, he tried to escape. Fisk then

launched another, unprovoked attack with a second weapon, this time scissors. This type

of attack is not self-defense. See also State v. Shoecraft, 2d Dist. Montgomery No. 27860,

2018-Ohio-3920 (rejecting self-defense claim where the victim was shot in the back of the

neck while driving away); Salyers (evidence that victim was shot in the back belies

defendant’s self-defense claim); State v. Herron, 2d Dist. Montgomery No. 28146, 2019-

Ohio-3292 (rejecting a self defense claim when victim suffered horrific injuries and

defendant was unharmed)

{¶ 33} Defendant’s version of events was that Patton came at him with a knife and

that he quickly dispossessed him of it. Even if, for the sake of argument, we were to

accept that as true, Fisk then pulled out his own weapon and used it on a then-unarmed

man; that cannot be self-defense because, if Patton no longer possessed a knife, Fisk

would not have had the imminent threat of death or great bodily harm needed for self-

defense. Accord Smith at ¶ 21-23 (the court’s improper exclusion of evidence about the

victim’s previous conduct was harmless error when defendant’s attack on the unarmed

victim negated the self-defense claim).
 -11-

{¶ 34} The evidence presented at trial negated Fisk’s theory of self-defense and

rendered the issue of his state of mind irrelevant. The court’s error was harmless, and

Fisk’s assignment of error is overruled.

III. Restitution

{¶ 35} The State has filed a cross-appeal and argues that the trial court erred by

not granting the restitution requested by Patton.

{¶ 36} R.C. 2929.18(A)(1) permits a trial court to order restitution “by the offender

to the victim of the offender’s crime * * * in an amount based on the victim’s economic

loss.” If restitution is imposed, the statute states that restitution may be made “to the victim

in open court, to the adult probation department that serves the county on behalf of the

victim, to the clerk of courts, or to another agency designated by the court.” Id.

{¶ 37} In February 2018, Marsy’s Law, the amendment to the Ohio Constitution,

Article I, Section 10a, expanded the rights of crime victims. Key to this case, Marsy’s Law

gives a victim the right to “full and timely restitution from the person who committed the

criminal offense or delinquent act.” Ohio Constitution, Article I, Section 10a(A)(7).

{¶ 38} The amendment also describes the process which must be followed to

receive restitution. “The victim, the attorney for the government upon request of the victim,

or the victim’s other lawful representative, in any proceeding involving the criminal offense

* * * may assert the rights enumerated in this section. * * * If the relief sought is denied,

the victim or the victim’s lawful representative may petition the court of appeals for the

applicable district, which shall promptly consider and decide the petition.” Ohio

Constitution, Article I, Section 10a(B).

{¶ 39} As previously stated, the State argues that Patton should have been
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granted $177,179.58 in restitution to cover medical expenses the VA purportedly would

not cover. At the very least, the State contends, the trial court should have granted Patton

the opportunity to obtain additional documentation to prove his case. Fisk, on the other

hand, asserts that the State does not have standing to appeal this issue. We conclude

Fisk is correct.

{¶ 40} Ohio Constitution, Article I, Section 10a(B) is only two sentences long, but

it dictates who can vindicate the rights of a crime victim and in what court. The first

sentence states: “The victim, the attorney for the government upon request of the victim,

or the victim’s other lawful representative, in any proceeding involving the criminal offense

or delinquent act against the victim or in which the victim’s rights are implicated, may

assert the rights * * * afforded to the victim.” (Emphasis added). It is important to note

that in this sentence, the drafters of the constitutional amendment specifically included

the attorney for the government – the State – as a party with the ability to advocate for

the victim. Compare that with the next sentence: “If the relief sought is denied, the victim

or the victim’s lawful representative may petition the court of appeals for the applicable

district, which shall promptly consider and decide the petition.” Any mention of the

attorney for the government is gone, and that distinction is important.

{¶ 41} One of the major canons of statutory interpretation is that a legislature is

presumed to act purposely when it includes language in one section but omits it in

another. NACCO Indus., Inc. v. Tracy, 79 Ohio St.3d 314, 316, 681 N.E.2d 900 (1997),

citing Chicago v. Environmental Defense Fund, 511 U.S. 328, 338, 114 S.Ct. 1588, 128

L.Ed.2d 302 (1994). This is also sometimes called the “negative implication” cannon.

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 111
 -13-

(2012).

{¶ 42} In United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341

(1974), the court discussed a statute which established procedures for obtaining court

orders for the interception of wire and oral communications. The text stated that the

“Attorney General * * * or any Assistant Attorney General * * * designated by the Attorney

General” could approve the application of an order. Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. 2510-2520. In that case, the Attorney General’s executive

assistant applied for and received the wiretap. Id. at 510. Giordano averred that his

recorded conversations should have been excluded from trial because they were

unlawfully obtained, in that the executive assistant was not listed as someone who could

apply for the wiretap. Id. A unanimous court agreed and stated that the law gave two

types of officials the ability to get the wiretaps, and the executive assistant was not one

of them. Id. at 514.

{¶ 43} Similarly, in this case, the attorney for the government is explicitly

mentioned as a party that may advocate for the victim’s rights at the trial level but is

omitted from the sentence that deals with what happens after relief is denied. Had the

drafters of Marsy’s Law intended for the State to be able to advocate on appeal for a

victim after relief was denied below, they would have included the attorney for the

government language. They specifically did not, instead only mentioning the victim or the

victim’s lawful representative.

{¶ 44} This determination leaves the State without standing to appeal this

particular issue. “Standing does not depend on the merits of the plaintiff’s claim; rather

standing depends on whether the plaintiffs have alleged such a personal stake in the
 -14-

outcome of the controversy that they are entitled to have a court hear their case.” 73 Ohio

Jur.3d Parties § 4. Another formulation, which is derived from federal case law, states

that in order to establish standing, a litigant must show that he “suffered (1) an injury that

is (2) fairly traceable to the defendant’s allegedly unlawful conduct, and (3) [is] likely to be

redressed by the requested relief.” Moore v. Middletown, 133 Ohio St.3d 55, 60, 2012-

Ohio-3897, 975 N.E.2d 977, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561,

112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

{¶ 45} In this case, the State does not have such a nexus. The “injured” party, the

party with a personal stake in the matter, is not the State, but Patton. It is Patton’s medical

bill and the restitution would go to him. Further, it is well-established that the victim of a

crime is not a party to a criminal proceeding. State v. Williams, 7th Dist. Mahoning No. 09

MA 11, 2010-Ohio-3279; State v. Roach, 6th Dist. Lucas No. L-16-1303, 2017-Ohio-8511;

State v. Godfrey, 3d Dist. Wyandot No. 16-12-06, 2013-Ohio-3396. “[T]he appropriate

parties in a criminal proceeding are the state and the defendant.” Id. at ¶ 30. The victim’s

interests are not being represented in a criminal case, but rather, those of the people of

the State of Ohio. Id. at ¶ 31. In other words, the State cannot appeal the denial of a

restitution order because it has suffered no injury. The aggrieved party, in this case

Patton, is not properly part of the case.

{¶ 46} Because it does not have standing to appeal the trial court’s decision to

deny restitution, the State’s assignment of error in the cross-appeal is overruled.

IV. Conclusion

{¶ 47} Having overruled both Fisk’s and the State’s assignments of error, the trial

court’s judgment will be affirmed.
 -15-

.............

DONOVAN, J., concurs.

TUCKER, P.J., concurs:

{¶ 48} I write separately because, in my view, when self-defense – and thus the

defendant’s state of mind – is an issue, specific instances of the victim’s past violent

behavior known to the defendant at the time of the confrontation must, at least in the first

instance, be submitted through the defendant’s testimony. Therefore, in my opinion, the

trial court correctly excluded the contested testimony, albeit upon incorrect reasoning.

{¶ 49} If evidence is presented which “tends to support the conclusion ‘that the

defendant used force against another in self-defense * * *, the state must prove beyond

a reasonable doubt that the defendant did not use the force in self-defense * * *.’ ” State

v. Smith, 2021-Ohio-1185, ___ N.E.3d ___, ¶ 21 (8th Dist.), quoting State v. Smith, 1st

Dist. Hamilton No. 190507, 2020-Ohio-4976, ¶ 49, citing R.C. 2901.05(B)(1). Since the

elements of self-defense are in the conjunctive, “the state need only disprove one of the

elements of self-defense beyond a reasonable doubt * * * to sustain its burden.” Id., citing

Smith at ¶ 49. (Other citations omitted.) Thus, in order to sustain its burden of proof, “the

state must demonstrate (1) that the defendant was at fault in creating the situation giving

rise to the affray; [or] (2) that the defendant lacked a bona fide belief that he was in

imminent danger of death or great bodily harm * * *; or (3) that the defendant violated a

duty to retreat or avoid danger.” Id., citing State v. Thompson, 141 Ohio St.3d 254, 2014-

Ohio-4751, 23 N.E.3d 1096, ¶ 258, quoting State v. Barnes, 94 Ohio St.3d 21, 24, 2002-

Ohio-68, 759 N.E.2d 1240. (Other citations omitted.)
 -16-

{¶ 50} The evidence at issue in this appeal concerns whether Fisk had a bona fide

belief that the use of deadly force was necessary because he was in immediate danger

of death or serious injury. Fisk, though he did not have the burden of proof, certainly had

the right to present evidence in an effort to rebut the state’s evidence that he did not have

a good faith belief that he was in imminent danger of death or serious injury. The issue,

then, is how, consistent with the rules of evidence and the caselaw, such evidence must

be presented.

{¶ 51} When self-defense is an issue, evidence concerning the victim’s past violent

conduct falls into two categories: (1) testimony regarding the defendant’s state of mind at

the time of the encounter and (2) evidence concerning the defendant’s character with this

evidence being relevant to whether the victim was the initial aggressor. State v. Mason,

6th Dist. Lucas Nos. L-02-1211, L-02-1189, 2003-Ohio-5974, ¶ 38, citing State v.

Cuttiford, 93 Ohio App.3d 546, 554, 639 N.E.2d 472, (9th Dist.1994). Though the second

category is not implicated in the pending case, a discussion of this category is helpful to

the analysis. Evidence concerning whether the victim was the initial aggressor is limited

to reputation or opinion testimony regarding the defendant’s propensity for violence.

Barnes at ¶ 24. As such, evidence of the victim’s specific violent behavior is not permitted.

Id. The rationale for this conclusion is that, although Evid.R. 404(A)(2) allows the

introduction of evidence regarding a pertinent character trait of the victim, the introduction

of such evidence is regulated by Evid.R. 405. Evid.R. 405(A) allows opinion or reputation

testimony concerning a relevant character trait. But when a character trait is an essential

element of a “charge, claim, or defense,” evidence of the character trait may be introduced

through “specific instances of such conduct.” Evid.R. 405(B). Since a victim’s “violent
 -17-

propensity” is not an element of self-defense, a defendant cannot introduce specific

violent acts committed by the victim to rebut the state’s evidence that the defendant was

the first aggressor. Id.1

{¶ 52} Turning, then, to the issue relevant to this case (Fisk’s state of mind at the

moment of the encounter), it has consistently been held that despite the Barnes edict, a

defendant “may testify about specific instances of the victim’s prior conduct which were

known to [the] defendant in order to establish [his] state of mind.” State v. Gott, 6th Dist.

Lucas No. L-11-1070, 2013-Ohio-4624, ¶ 35, citing State v. Carlson, 31 Ohio St.3d 72,

73, 508 N.E.2d 999, (8th Dist.1986). See also State v. Herron, 2d Dist. Montgomery No.

28146, 2019-Ohio-3292, ¶ 28; State v. Davis, 5th Dist. Stark No. 2003 CA 429, 2004-

Ohio-7056, ¶ 25; State v. Fitch, 8th Dist. Cuyahoga No. 29937, 2002-Ohio-4891, ¶ 28,

reversed on other grounds, 104 Ohio St.3d 156, 2004-Ohio-6387, 818 N.E.2d 1171. Such

evidence is introduced “to establish not the victim’s character * * *, but his own state of

mind.” (Citations omitted.) Herron at ¶ 28. Such evidence must, at least initially, be

introduced through the defendant’s testimony. Gott at ¶ 36; Davis at ¶ 25 (“witnesses

[other than the defendant] are not permitted to testify to the victim’s specific instances of

violent conduct to establish the defendant’s state of mind, i.e. his bona fide belief that he

is in imminent danger.”) This conclusion is appropriate because another witness cannot

know – and thus cannot testify to ̶ the defendant’s state of mind regarding how the

victim’s past conduct affected the imminent danger calculus. If the presentation of

1
As discussed, the R.C. 2901.05(B)(1) amendment has shifted the self-defense burden
of proof to the state. But the self-defense elements remain the same. Smith, 2021-Ohio-
1185, ___ N.E.3d ___, ¶ 21. Thus, in my opinion, the methods for introducing evidence
of the victim’s past violent conduct also remains the same.
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evidence is not so regulated, evidence concerning a victim’s past violent conduct will be

inappropriately introduced as character evidence as opposed to state of mind evidence.2

{¶ 53} At trial, Fisk, through Patton’s cross-examination, elicited evidence of

previous encounters between Patton and himself. Such testimony, though problematic

in my opinion, is not pertinent to this appeal. But I conclude that the trial court properly

prevented cross-examination of Patton regarding past violent conduct not involving Fisk,

though based upon flawed reasoning. As discussed, such testimony cannot be

introduced to suggest Fisk’s state of mind. On this basis, I concur in the majority opinion.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Stephen P. Hardwick
Hon. Michael W. Krumholtz

2
As noted, the caselaw seems to suggest that witnesses other than the defendant are
completely barred from testifying to specific instances of the victim’s past violent conduct.
I, in contrast, suggest that after the defendant has testified regarding how his state of
mind was influenced by the victim’s past violent behavior within the defendant’s
knowledge, the defense should be permitted to present witnesses to corroborate the
occurrence of the specific violent conduct set forth by the defendant. See State v.
McGaw, 123 Ohio St. 196, 200, 174 N.E.741 (1931) (“without * * * corroboration the jury
might * * * discredit [the defendant] on the ground that he * * * furnished no corroboration
of a story that any accused might easily fabricate to support a claim of self-defense.”)