State v. Gagovski , 2012 Ohio 6088 ( 2012 )

[Cite as State v. Gagovski, 2012-Ohio-6088.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 12AP020012
KRISTINA N. GAGOVSKI :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Case No.
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 19, 2012
APPEARANCES:
For Appellant: For Appellee:
RODNEY A. BACA RYAN STYER
610 Market Ave. North TUSCARAWAS CO. PROSECUTOR
Canton, OH 44702 R. SCOTT DIETRICK
125 E. High Ave.
New Philadelphia, OH 44663
[Cite as State v. Gagovski, 2012-Ohio-6088.]
Delaney, J.
{¶1} Appellant Kristina N. Gagovski appeals her conviction and sentence in
the Tuscarawas County Court of Common Pleas upon one count of felonious assault.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Jason Bair were once romantically involved and have two
daughters together, ages 2 and 4 at the time of these events. Appellant and Bair had
lived together in an apartment on 4th Drive, New Philadelphia, Ohio. Bair eventually
moved out of the apartment but visited frequently because of the children. After Bair
moved out, a roommate, Molly Miller, moved in with appellant and her children.
{¶3} On July 4, 2011, Bair had both children with him at his mother’s house
during the day. Friends came over for a party and Bair had approximately five beers
during the course of the day. He spoke to appellant on the telephone several times
and the conversations were cordial. In the meantime, appellant was also at a party
with friends of her own. Appellant consumed a bottle of wine and three or four shots,
topped off with Xanax and Vicodin, among other prescription medications.
{¶4} Around 5:00 p.m., Bair and the two children returned to the house on 4th
Drive in Bair’s van to meet appellant. Appellant got into the van and the four drove to
a Mini Market where they bought alcoholic beverages. They returned to the house,
put the beverages away, and then left again for Taco Bell to purchase food. Bair
drove.
Tuscarawas County, Case No. 12AP020012 3
{¶5} Upon their return to the house, appellant sat on the couch in the living
room and ate with the 2-year-old while Bair was in the kitchen with the 4-year-old. As
the four ate downstairs, Molly Miller returned to the residence and went upstairs.
{¶6} In the kitchen, Bair looked at appellant’s cell phone and noticed a text
message which angered him. Bair told appellant he was leaving immediately,
accused her of cheating on him, and called up the stairs to Miller that he was leaving.
Bair took the 4-year-old with him to the minivan and began to strap her into her car
seat.
{¶7} Appellant came out of the house with a steak knife in her hand and told
Bair, “You’re not leaving.” She punctured a tire on the van with the knife, flattening it.
She then opened the van’s rear door and pulled the 4-year-old out of the vehicle. Bair
said he was going to call the police regarding appellant’s treatment of the child.
According to Bair, appellant then stated, “You’re dead” and stabbed him in his upper
left chest.
{¶8} Bair told appellant to call 911 but she refused, stating she would lose the
kids if the police were involved. Bair then yelled for Miller, who was still upstairs.
Miller grabbed both children and ran to a neighbor’s house to call police. Appellant
told Bair she was sorry and that she loved him.
{¶9} Bair was transported to Akron General Hospital where he was found to
have a 2-centimeter left anterior chest laceration. Upon review of an x-ray, treating
doctors determined his wound was superficial because it did not threaten his lungs or
heart. The wound was dressed and Bair was told to keep clean gauze on it.
Tuscarawas County, Case No. 12AP020012 4
Appellant’s Shifting Admissions to the Stabbing
{¶10} During the investigation of the stabbing, appellant gave investigators a
written statement claiming Bair came after her and she stabbed him to defend herself.
{¶11} At trial, appellant testified on her own behalf and admitted she stabbed
Bair but claimed it was an accident. She claimed she punctured the tire of the van in
an attempt to stop Bair from driving drunk with the kids, and that Bair chased her back
into the house as she carried the knife and then somehow “fell” onto the knife.
Appellant Urged Witness Not to Seek Help for Bair
{¶12} Miller also testified at trial. She did not hear the confrontation which led
to the stabbing and was still upstairs when she heard Bair calling “Molly, help me.”
She found him laying on the floor of the garage, obviously injured, with appellant
standing over him. The couple’s 4-year-old daughter was “draped over” Bair, sobbing.
Appellant said Bair was fine, but Miller picked up the telephone to call police. The
phone did not work. Appellant’s shirt was off and she wore only a bra; Miller noticed
appellant’s cell phone tucked into the bra. Miller asked to use the cell phone to call
police but appellant refused. Miller then grabbed the children and ran to the
neighbor’s house to use their phone.
Indictment, Conviction, and Sentence
{¶13} Appellant was charged by indictment with two counts of felonious assault
pursuant to R.C. 2903.11(A)(1) and (A)(2), but appellee dismissed the first count prior
to trial. The case proceeded to trial by jury. Appellant moved for judgment of acquittal
pursuant to Crim.R. 29(A) at the conclusion of appellee’s evidence and at the close of
all the evidence; the motions were overruled. Appellant was found guilty as charged
Tuscarawas County, Case No. 12AP020012 5
and was sentenced to a prison term of two years, suspended upon the condition that
she complete a community control sanction.
{¶14} Appellant now appeals from the judgment entries of her conviction and
sentence.
{¶15} Appellant raises two Assignments of Error:
{¶16} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED
APPELLANT HER DUE PROCESS RIGHTS TO A FAIR TRIAL BY NOT ALLOWING
EVIDENCE OF THE VICTIM’S CHARACTER REGARDING OPINION AND
REPUTATION, AND SPECIFIC ACTS EVIDENCED.”
{¶17} “II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE
CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
I.
{¶18} Appellant argues in her first assignment of error the trial court should
have permitted her to elicit evidence of Bair’s alleged specific violent acts, to wit, a
number of alleged acts of domestic violence against appellant.
{¶19} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material
prejudice to the defendant, a reviewing court should be reluctant to interfere with a
trial court’s decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224
N.E.2d 126 (1967). In order to find an abuse of discretion, the reviewing court must
find that the trial court’s decision was unreasonable, arbitrary, or unconscionable and
Tuscarawas County, Case No. 12AP020012 6
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶20} A victim’s violent acts may become relevant and admissible only under
certain limited circumstances. “Evidence of a person's character or a trait of character
is not admissible for the purpose of proving action in conformity therewith on a
particular occasion, although evidence of a pertinent trait of character of the victim of
the crime offered by an accused, or by the prosecution to rebut the same, or evidence
of a character trait of peacefulness of the victim offered by the prosecution in a
homicide case to rebut evidence that the victim was the first aggressor is admissible.”
Evid.R. 404. 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. Evid.R. 405(A). 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. Evid.R. 405(B).
{¶21} Appellant argued evidence of Bair’s past violent acts was relevant to her
claim of self-defense, but prior to trial, appellee filed a motion in limine to exclude any
such evidence. The trial court sustained appellee’s motion on the basis of State v.
Barnes, in which the Ohio Supreme Court ruled specific instances of a victim’s
conduct are not admissible to prove the victim was the initial aggressor. 94 Ohio St.3d
21, 23, 2002-Ohio-68, 759 N.E.2d 1240. Near the end of trial, outside the presence of
the jury, appellant proffered the evidence she would have introduced if the motion in
limine had not been sustained; defense counsel said Molly Miller would have testified
Tuscarawas County, Case No. 12AP020012 7
Bair “is a violent, angry man and that he has been violent toward [appellant.]”
Appellant then listed a number of alleged specific acts of threats and domestic
violence perpetrated against her by Bair. We note it is unclear from the record how
appellant would have introduced these specific acts, whether through testimony of
Miller or appellant herself. Either way, we find the proffered specific-act evidence is
exactly the type prohibited by Barnes, supra, and the trial court did not err in excluding
it.
{¶22} Appellant argues further she should have been permitted to introduce
evidence of Bair’s propensity for violence by means of reputation or opinion testimony.
We note, though, appellant did in fact testify Bair had beaten her up in the past, that
she was “scared to death” of him, and that she “had a lot of fear” based upon things
he had done to her in the past. The trial court permitted appellant latitude in
addressing Bair’s alleged violent past despite the ruling on appellee’s motion in limine.
{¶23} Appellant’s assigned error, then, turns upon whether appellant should
have been permitted to ask Molly Miller about Bair’s reputation for violence or her
opinion thereof. We find any error by the trial court in excluding this narrow piece of
evidence was harmless. Bair’s alleged violent nature did come into evidence via
appellant’s testimony. Moreover, appellant’s argument at trial focused more upon the
stabbing as an accident rather than self-defense, as will be discussed with regard to
appellant’s second assignment of error, infra. Harmless errors are to be disregarded
and the erroneous admission or exclusion of evidence is not reversible unless it
affects a substantial right that prejudices the defendant. See, Crim.R. 52(A); Evid.R.
103(A); State v. Brown, 65 Ohio St.3d 483, 485, 605 N.E.2d 46 (1992).
Tuscarawas County, Case No. 12AP020012 8
{¶24} The trial court did not abuse its discretion in granting appellee’s motion in
limine and appellant’s first assignment of error is overruled.
II.
{¶25} In the second assignment of error, appellant argues her conviction upon
one count of felonious assault is against the manifest weight and sufficiency of the
evidence because the victim’s wound was superficial. We disagree.
{¶26} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.”
{¶27} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
Tuscarawas County, Case No. 12AP020012 9
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra,
78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of
the evidence and ordering a new trial should be reserved for only the “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
{¶28} Appellant was convicted of one count of felonious assault pursuant to
R.C. 2903.11(A)(2), which states, “No person shall knowingly cause or attempt to
cause physical harm to another by means of a deadly weapon.” The evidence at trial
established appellant stabbed Bair with a steak knife in his left upper chest, by her
own admission. During the investigation appellant claimed the stabbing was in self-
defense, although at trial she inferred it was the result of an accident. Upon appeal,
she argues her conviction is against the manifest weight of the evidence and is not
supported by sufficient evidence because appellee did not establish the element of
“knowingly.”
{¶29} Appellant’s argument is based upon evidence that Bair’s wound was
superficial and she and Bair both testified the stabbing was not “intentional.” A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably
exist. R.C. 2901.22(B).
{¶30} We are required to review the evidence in a light most favorable to
appellee, and in so doing we find ample evidence appellant admittedly stabbed Bair
intentionally. The circumstances leading up to the stabbing indicate appellant argued
with Bair and used the knife to puncture a tire on his vehicle to prevent him from
Tuscarawas County, Case No. 12AP020012 10
leaving. When the argument continued and escalated to the point that Bair threatened
to call police, appellant stabbed him. These events are not consistent with appellant’s
initial assertion of self-defense. To establish self-defense in the use of non-deadly
force, the accused must show, initially, she was not at fault in creating the situation
giving rise to the altercation. State v. Hoopingarner, 5th Dist. No. 2010AP 07 00022,
2010-Ohio-6490, ¶ 31, citing State v. Vance, Ashland App. No. 2007-COA-035, 2008-
Ohio-4763, ¶ 77 (citations omitted). If this element, e.g., is not proven by a
preponderance of the evidence, the theory of self-defense does not apply. State v.
Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). Appellant initiated the
violent altercation and confronted Bair, knife in hand.
{¶31} Appellant’s belated claim of accident is also inconsistent with her
reaction in the immediate aftermath of the incident: she refused to get help for Bair
despite what appeared to be a significant wound. Not only did she refuse to
personally help him, but she encouraged Miller not to seek help and refused to allow
her to use her cell phone.
{¶32} In conclusion, appellant’s conviction is supported by sufficient evidence
and is not against the manifest weight of the evidence, and appellant’s second
assignment of error is overruled.
Tuscarawas County, Case No. 12AP020012 11
{¶33} For the foregoing reasons, the Tuscarawas County Court of Common
Pleas is affirmed.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
[Cite as State v. Gagovski, 2012-Ohio-6088.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KRISTINA N. GAGOVSKI :
:
: Case No. 12AP020012
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Tuscarawas County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE