State v. Reed ( 2023 )

[Cite as State v. Reed, 2023-Ohio-4694.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2023CA00033
CHARLES ALBERT REED
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2022-CR-1059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 21, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE JEFFREY JAKMIDES
Prosecuting Attorney JULIE JAKMIDES
Stark County, Ohio 325 East Main Street
Alliance, Ohio 44601
CHRISTOPHER A. PIEKARSKI
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South, Suite #510
Canton, Ohio 44702-1413
Stark County, Case No. 2023CA00033 2
Hoffman, P.J.
{¶1} Defendant-appellant Charles Albert Reed appeals the judgment entered by
the Stark County Common Pleas Court convicting him following jury trial of felonious
assault with a firearm specification (R.C. 2903.11(A)(1), (2); R.C. 2941.145(A)) and
menacing by stalking (R.C. 2903.211(A)(1)) and sentencing him to an aggregate prison
term of nine to twelve years. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2017, Appellant moved in across the street from the victim and his wife.
One day shortly after moving in, Appellant asked the victim if he could help the victim
move a piece of paneling out of the victim’s truck. The victim declined the offer, and
Appellant seemed offended. Appellant began trying to annoy the victim with his behavior,
including barking at the victim’s dogs and houseguests, walking up and down the sidewalk
clucking like a chicken, mocking the victim’s post-surgery limp, mowing his lawn while
openly carrying a gun, installing and aiming high-wattage spotlights at the victim’s house,
and blinding the victim with his car headlights in the morning when the victim attempted
to leave for work.
{¶3} On August 26, 2019, the victim and Appellant engaged in a verbal
altercation which turned physical. Appellant suffered injuries to his face which required
medical treatment. On several occasions thereafter, Appellant pulled out a gun in the
presence of others when the victim was outside. Police were called to the neighborhood
multiple times. In June of 2021, following an alleged rock-throwing incident, Appellant
told a Stark County Deputy Sheriff he would hate to have to use the new self-defense
law.
Stark County, Case No. 2023CA00033 3
{¶4} On May 23, 2022, Appellant and the victim both found themselves at the
same gas station in Alliance, Ohio. The victim pulled into the gas station to get a sandwich
and a drink for lunch. He saw Appellant’s truck parked. The victim walked around the
side of the building where he saw Appellant filling water jugs. No words were exchanged,
and Appellant immediately pulled out a gun. The victim remained still with his thumbs in
his pockets. Appellant shot the victim in the chest.
{¶5} Appellant was indicted by the Stark County Grand Jury with attempted
murder, felonious assault and menacing by stalking. Prior to trial, Appellant filed a notice
of his intent to claim self-defense. Appellant also filed an expert report of Dr. James
Pritchard, which detailed Appellant’s significant medical history and advanced the
doctor’s expert opinion an older person such as Appellant, who has heart disease, ,would
fare far worse than a younger person in an altercation if he sustained a fall. The expert
opinion opined Appellant could sustain significant or grave consequences from a verbal
and/or physical assault, especially if the attacker is twenty years younger, taller, heavier,
and in better physical condition.
{¶6} The State filed a motion in limine to prohibit Dr. Pritchard from testifying at
trial, to exclude Dr. Pritchard’s expert report, and to require Appellant to provide additional
evidence of a bona fide belief Appellant was entitled to use self-defense in this case. The
trial court found Dr. Pritchard’s report did not provide knowledge or expertise beyond that
of a lay person as a juror, as a lay person is perfectly capable of comprehending older
adults who fall or break bones fare far worse than younger adults, and the 78-year-old
Appellant could easily sustain grave consequences from an altercation with the younger,
heavier victim. The trial court granted the State’s motion in part, allowing Dr. Pritchard to
Stark County, Case No. 2023CA00033 4
testify as to Appellant’s significant medical history, but precluding his testimony as to the
potential consequences of an altercation between Appellant and the victim and its effect
on Appellant’s state of mind at the time of the shooting.
{¶7} The case proceeded to jury trial. At trial, Dr. Pritchard testified about
Appellant’s significant medical history, including prostate cancer, heart disease, lung
disease, hypertension, prediabetes, and Agent Orange exposure. Appellant testified at
trial he obtained a concealed carry permit following a mass shooting during the Batman
movie in Colorado. Appellant testified the victim referred to him as “dick head,” while he
called the victim “pecker head.” Tr. (3A) 208. Appellant testified he heard the victim had
told a deputy sheriff if Appellant ever pulled a gun on the victim, the victim would shove
the gun up Appellant’s ass. Tr. (3A) 214. Appellant believed something was going to
happen with the victim, and so he began carrying his gun. Appellant said following the
physical altercation in 2019, the victim threatened to beat him up again.
{¶8} On the day of the shooting, Appellant testified the victim pulled his vehicle
next to Appellant at the gas station, rolled down the window, and said, “Hey, dick head.”
Tr. (3A) 221. Appellant was apprehensive, but the victim pulled out of the gas station.
Appellant testified the victim then turned around, returned to the gas station, got out of
his vehicle, and started walking toward Appellant. Because the victim’s thumb was in his
pocket, Appellant testified he did not know if he was reaching for a weapon. When
Appellant pulled his own pistol out, he said the victim didn’t raise his hands or say not to
shoot, and Appellant thought the victim was going to assault him. Appellant then shot the
victim. Appellant testified his health was not good, and he feared for his life if he went
through another beating from the victim.
Stark County, Case No. 2023CA00033 5
{¶9} While the jury deliberated, Appellant made the following proffer:
MR. JAKMIDES: Yeah, this is Jeff Jakmides. I would proffer that if I
had been permitted to ask Dr. James Pritchard hypothetical questions, I
would have asked him question number one: Given the information you
have about Charlie Reed, I would ask you, if – hypothetically if he was yelled
at or put in a position of stress, within a reasonable degree of medical
certainty, could that be fatal?
Dr. Pritchard would have answered yes.
I also wanted to ask Dr. Pritchard a hypothetical question that given
the medical conditions of Charlie Reed, within a reasonable degree of
medical certainty, could Charlie Reed suffer death as a result of being
pushed down?
He would have answered yes.
And then finally I would have asked Dr. James Pritchard a
hypothetical question that given Charlie Reed’s conditions, within a
reasonable degree of medical certainty, could he be killed by a blow to any
part of his body or any part of his head?
Dr. Pritchard would have answered that question yes as well.
Tr. (3B)86-87.
{¶10} The jury found Appellant not guilty of attempted murder, and guilty of
felonious assault and menacing by stalking. The trial court sentenced Appellant to a term
Stark County, Case No. 2023CA00033 6
of six to nine years incarceration for felonious assault, three years incarceration for the
firearm specification, to be served consecutively to the sentence for felonious assault,
and eighteen months incarceration for menacing by stalking, to be served concurrently to
the sentence for felonious assault, for an aggregate term of incarceration of nine to twelve
years. It is from the March 24, 2023 judgment of the trial court Appellant prosecutes his
appeal, assigning as error:
THE TRIAL COURT ERRED IN PRECLUDING DEFENDANT’S
EXPERT FROM TESTIFYING REGARDING THE POSSIBILITY THAT
RELATIVELY MINOR CONFRONTATIONS COULD PROVE FATAL TO
THE DEFENDANT DUE TO HIS FAILING HEALTH. TO ESTABLISH
SELF-DEFENSE, DEFENDANT WAS REQUIRED TO SHOW A BELIEF
THAT HE WAS IN IMMINENT DANGER OF DEATH OR GREAT BODILY
HARM AND THAT SUCH BELIEF WAS OBJECTIVELY REASONABLE
UNDER THE CIRCUMSTANCES. DR. PRITCHARD’S TESTIMONY
REGARDING DEFENDANT’S MEDICAL HISTORY AND PHYSICAL
CONDITION WAS OFFERED TO DEMONSTRATE THAT HIS BELIEF
WAS OBJECTIVELY REASONABLE, AND BY PRECLUDING DR.
PRITCHARD FROM DRAWING THAT CONNECTION THE TRIAL COURT
IMPROPERLY EXCLUDED EVIDENCE CRITICAL TO THE
DEFENDANT’S CASE.
Stark County, Case No. 2023CA00033 7
{¶11} Appellant claimed self-defense at trial. The elements of self-defense in the
use of deadly force are: (1) the defendant was not at fault in creating the situation giving
rise to the affray; (2) the defendant had a bona fide belief he was in imminent danger of
death or great bodily harm and his only means of escape from such a danger was in the
use of such force, and (3) the defendant did not violate any duty to retreat or avoid the
danger.1 State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
{¶12} The second element of self-defense requires the evidence tends to show
the accused had reasonable grounds to believe or an honest belief, even if mistaken, he
or another was in imminent or immediate danger of death or great bodily harm. In State
v. Thomas, the Ohio Supreme Court explained:
[T]he second element of self-defense is a combined subjective and
objective test. As this court established in State v. Sheets (1926), 115 Ohio
St. 308, 310, 152 N.E. 664, self-defense “is placed on the grounds of the
bona fides of defendant's belief, and reasonableness therefor, and whether,
under the circumstances, he exercised a careful and proper use of his own
faculties.” (Emphasis sic.) See, also, McGaw v. State (1931), 123 Ohio St.
196, 174 N.E. 741, paragraph two of the syllabus. In Koss, we once again
stated this test by approving similar jury instructions to those given in the
case sub judice:
“In determining whether the Defendant had reasonable grounds for
an honest belief that she was in imminent danger, you must put yourself in
1 In the instant case, Appellant had no duty to retreat pursuant to R.C. 2901.09 because he was in a place
where he lawfully had a right to be.
Stark County, Case No. 2023CA00033 8
the position of the Defendant * * *. You must consider the conduct of [the
assailant] and determine if such acts and words caused the Defendant to
reasonably and honestly believe that she was about to be killed or to receive
great bodily harm.’ ” (Emphasis added.) Koss, 49 Ohio St.3d at 216, 551
N.E.2d at 973. Thus, the jury first must consider the defendant's situation
objectively, that is, whether, considering all of the defendant's particular
characteristics, knowledge, or lack of knowledge, circumstances, history,
and conditions at the time of the attack, she reasonably believed she was
in imminent danger. See 1 LaFave & Scott, Substantive Criminal Law (1986,
Supp. 1996) 654, Supp. 71, Section 5.7. See, also, generally, State v.
Shane (1992), 63 Ohio St.3d 630, 634, 590 N.E.2d 272, 276 ... Then, if the
objective standard is met, the jury must determine if, subjectively, this
particular defendant had an honest belief that she was in imminent danger.
See 1 LaFave & Scott, Substantive Criminal Law (1986, Supp. 1996) 654,
Supp. 71, Section 5.7. See, also, generally, Shane, supra, 63 Ohio St.3d at
634, 590 N.E.2d at 276.... 77 Ohio St.3d 323, 330-331, 673 N.E.2d 1339(1997).
{¶13} Appellant argues the trial court erred in excluding Dr. Pritchard’s testimony
concerning the medical outcome to Appellant of an altercation with a man the victim’s age
and size, as such evidence would have demonstrated Appellant reasonably believed his
life was in danger when he shot the victim.
Stark County, Case No. 2023CA00033 9
{¶14} “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.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991).
{¶15} Evid. R. 702(A) provides a witness may testify as an expert if the “witness'
testimony either relates to matters beyond the knowledge or experience possessed by
lay persons or dispels a misconception common among lay persons.” The trial court
found the testimony proffered in the instant case did not relate to matters beyond the
knowledge or experience possessed by lay persons, and did not dispel a misconception
common among lay persons.
{¶16} Appellant relies on the Ohio Supreme Court’s opinion in State v. Koss, 49
Ohio St.3d 213, 551 N.E.2d 970 (1990), in support of his argument expert testimony was
admissible on the issue of whether his belief he was in imminent danger from the victim
was reasonable. In Koss, the court found testimony concerning battered women’s
syndrome was admissible on the issue of self-defense:
Expert testimony regarding the battered woman syndrome can be
admitted to help the jury not only to understand the battered woman
syndrome but also to determine whether the defendant had reasonable
grounds for an honest belief that she was in imminent danger when
considering the issue of self-defense. “Expert testimony on the battered
woman syndrome would help dispel the ordinary lay person's perception
that a woman in a battering relationship is free to leave at any time. The
Stark County, Case No. 2023CA00033 10
expert evidence would counter any ‘common sense’ conclusions by the jury
that if the beatings were really that bad the woman would have left her
husband much earlier. Popular misconceptions about battered women
would be put to rest, including the beliefs that the women are masochistic
and enjoy the beatings and that they intentionally provoke their husbands
into fits of rage. See Walker, The Battered Woman, 19–31 (1979).” State v.
Hodges (1986), 239 Kan. 63, 68–69, 716 P.2d 563, 567. See, also, Smith
v. State, supra, 247 Ga. at 618–619, 277 S.E.2d at 683; Hawthorne, supra;
Torres, supra, 128 Misc.2d at 133–134, 488 N.Y.S.2d at 362.
As the Supreme Court of New Jersey stated in State v. Kelly, supra,
97 N.J. at 193, 478 A.2d at 371:
“[‘]Battered women include wives or women in any form of intimate
relationships with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman.[’]” (Quoting Walker, The Battered Woman [1979], at xv.)
“ * * * [E]xpert testimony would be essential to rebut the general
misconceptions regarding battered women.
“The difficulty with the expert's testimony is that it sounds as if an
expert is giving knowledge to a jury about something the jury knows as well
as anyone else, namely, the reasonableness of a person's fear of imminent
serious danger. That is not at all, however, what this testimony is directly
Stark County, Case No. 2023CA00033 11
aimed at. It is aimed at an area where the purported common knowledge of
the jury may be very much mistaken, an area where jurors' logic, drawn
from their own experience, may lead to a wholly incorrect conclusion, an
area where expert knowledge would enable the jurors to disregard their
prior conclusions as being common myths rather than common knowledge.”
(Emphasis sic) Kelly, supra, at 206, 478 A.2d at 378.
{¶17} Id. at 216–17, 551 N.E.2d at 973–74.
{¶18} The Ohio Supreme Court later extended the holding in Koss to child abuse
situations, finding testimony on the syndrome or psychological effects of abuse is
essential to proving the elements of a self-defense claim, because nonconfrontational
killings do not fit the general pattern of self-defense. State v. Nemeth, 82 Ohio St.3d 202,
208, 694 N.E.2d 1332 (1998). Without expert testimony, a trier of fact may not be able to
understand the defendant at the time of the killing could have had an honest belief he
was in imminent danger of death or great bodily harm, and it is difficult for the average
person to understand the degree of helplessness an abused child may feel. Id. Thus,
expert testimony would help dispel the ordinary lay person's perception that a [person] in
a battering relationship is free to leave at any time. Id.{¶19} In both Koss and Nemeth, the expert testimony aided the jury in dispelling
a common misconception a woman or child in an abusive relationship is free to leave any
time. However, in the instant case, no such misconception exists. It is not a commonly
held belief an older person with numerous health problems is no more susceptible to
death from an altercation than a younger person in good health. Dr. Pritchard testified
Stark County, Case No. 2023CA00033 12
at trial as to numerous health conditions from which Appellant suffered. Appellant testified
because of his poor health, he feared for his life should he have another physical
altercation with the victim. Further, the jury heard testimony from both the victim and
Appellant, and was in a position to physically see the differences in age, size, and physical
condition between the two men. As found by the trial court, expert testimony was not
necessary for a lay person to understand the potential fragility of an older person in poor
health who is involved in a verbal or physical altercation, and to evaluate the objective
reasonableness of Appellant’s belief he was in imminent danger of death or bodily harm
if engaged in an altercation with the victim. We find the trial court did not err in finding
Dr. Pritchard’s opinion was not admissible under Evid. R. 702(A), as the proffered
testimony was not beyond the knowledge or experience of a lay person and did not dispel
any misconception common amongst lay persons.
{¶20} Appellant also argues the State opened the door for expert testimony in the
following exchange during the State’s cross-examination of Dr. Pritchard:
Q: Okay. So you had said that you’re shocked that someone could
have so many ailments and still be alive; yet it doesn’t surprise you that he
lived on his, on his own?
A: I never said I was shocked
Q: Well, I think that’s ex –
A: I said I, I never saw anybody that had as many – that – people
that were alive that had as many diagnosis (sic) that he has and that I expect
him to die any day.
Stark County, Case No. 2023CA00033 13
Q: So those are based on records from Ju – July of 2022 and yet
here we are all these months later?
A: No, it’s not based on that. It’s based on all my medical knowledge
and all my years of education and my time in the coroner’s office and
reading medical literature about people just exactly like Mr. Reed that’s (sic)
been taking aspirin, that has (sic) minor injuries, that die from bumps on
their head in the car doors.
{¶21} Tr. (3A) 172-73.
{¶22} The prosecutor’s objection to this answer was sustained, and the statement
was stricken from the record.
{¶23} We find the prosecutor did not open the door by cross-examining the doctor
on his testimony he was surprised Appellant was still alive. Under the “opening the door’
doctrine, the introduction of inadmissible evidence by one party allows an opponent, in
the court's discretion, to introduce evidence on the same issue to rebut any false
impression which might have resulted from the earlier admission. State v. Gordon, 5th
Dist. Stark No. 2017CA00073, 2017-Ohio-9357, ¶ 25. In the instant case, Dr. Pritchard’s
testimony was not in response to any inadmissible evidence presented by the State.
Rather, he delved into areas previously deemed inadmissible by the court in response to
questioning by the State.
Stark County, Case No. 2023CA00033 14
{¶24} The assignment of error is overruled. The judgment of the Stark County
Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur