State v. Gilmore ( 1986 )

Douglas, J.

The issue presented in this case is whether a proffer of excluded evidence is required in every situation to preserve, for appellate review, an evidentiary ruling which is alleged to be in error. We answer in the negative.

Evid. R. 103 provides, in pertinent part:

“(A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

“(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination.” (Emphasis added.)

Pursuant to the explicit provisions of this rule, a party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.

In accordance with this interpretation of Evid. R. 103, we modify our ruling in State v. Hipkins (1982), 69 Ohio St. 2d 80 [23 O.O.3d 123]. In Hipkins, at 82, this court stated:

“Furthermore, it is well settled that when a court has sustained objections to an inquiry during the examination in chief, a statement must be made as to what the expected answer would be in order that the reviewing court can determine whether or not the [ruling of the] trial court is prejudicial. Smith v. Rhodes (1903), 68 Ohio St. 500, 505.* * *”

While the better practice, in every instance, may be to proffer excluded evidence, under Evid. R. 103 a party is not required to proffer excluded evidence in order to preserve any alleged error for review if the substance of the excluded evidence is apparent to the court from the context within which questions were asked.

Appellant argues that appellee’s failure to proffer the statements allegedly made to him by Smith rendered the record insufficient for the court of appeals to find that prejudicial error had occurred. To base error on evidence not expressly proffered, appellant argues, would require a reviewing court to speculate as to the merits of the alleged error. Under the specific facts presented in this case, we do not agree with appellant’s argument.

Upon review of the record, we note the following testimony from appellee’s direct examination during his case in chief:

“Q. All right, now, at the time of this first meeting, did Kelly make any request of you?

“A. Yes.

“Q. What was that request?

“A. That was—

“Ms. Howland [assistant prosecutor]: Objection, hearsay.

“The Court: Sustained.

“Q. Who originated the discussion about cocaine?

“Ms. Howland: Objection.

“The Court: Sustained.

“Q. Owen, you say that you met Kelly Smith in late September, 1984; is that correct?

“A. That’s right.

“Q. And then, on October 12, 1984, how many times did you come into contact with her?

“A. I’d say at least 12 times. That’s at the least.

“Q. Twelve times, okay. Now on those 12 occasions, did the subject of narcotics come up?

“A. Yes.

“Q. And who originated that subject?

“A. Kelly Smith did.

“Q. Did she ask you to sell her drugs?

“Ms. Howland: Objection.

“The Court: Sustained.

“Q. Was it your understanding that Kelly wanted you to make drug sales?

“Ms. Howland: Objection.

“The Court: Sustained.

“Q. I want to take you now to October, around the 12th. Did you have a meeting with Kelly Smith on that day?

“A. Yes.

“Q. All right, and at that meeting, did Kelly ask you to—

“Ms. Howland: Objection.

“Q. —make a sale of drugs?

“The Court: Let him finish his question.

“Ms. Howland: Sorry.

“The Court: Now, it’s sustained.

“Q. Did you agree at that final meeting to make a sale of cocaine?

“A. Yes, I did, because of the constant—

“Ms. Howland: Objection.

“The Court: Sustained, you have answered the question.

“Q. Why was it you agreed to make that sale.

“Ms. Howland: Objection.

“The Court: He made — that’s opened. He may answer subject to a motion to strike.

“Q. Why was it that you agreed to make that sale?

“A. Because I was badgered for the past three weeks to make the sale.

“Ms. Howland: Motion to strike.

“The Court: Sustained.”

The questions presented throughout appellee’s above-noted testimony reveal that appellee was trying to establish that he, appellee, had been induced to sell cocaine. From the context of the questions asked, we find, in accordance with Evid. R. 103(A)(2), that the intended testimony was obvious: appellee would have stated that Smith repeatedly urged him to sell cocaine. Thus, the court of appeals did have a sufficient record upon which to base its finding that appellee’s testimony had been improperly excluded.

Having so decided, the foregoing determination does not, however, dictate that appellee be granted a new trial. As noted, a party may not predicate error on the exclusion of evidence unless two conditions are met. While appellee in this case has fulfilled one of those conditions, he did not demonstrate that the exclusion of Smith’s statements affected any substantial right of appellee. Moreover, we are convinced that even if the excluded testimony had been admitted, such evidence would not negate the overwhelming proof of defendant’s guilt. See State v. Williams (1983), 6 Ohio St. 3d 281, paragraph six of the syllabus.

Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.

Judgment reversed.

Sweeney, Locher, Holmes, C. Brown and Wright, JJ., concur. Celebrezze, C.J., concurs in part and dissents in part.