State v. Fisk ( 2021 )


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  • [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.
    -2-
    {¶ 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
    -3-
    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
    -5-
    (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
    -6-
    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
    -12-
    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.
    -18-
    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.”)