[Cite as State v. Saunders,
2016-Ohio-5284.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 14CA0125-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DAVID SAUNDERS COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 13-CR-0734
DECISION AND JOURNAL ENTRY
Dated: August 8, 2016
MOORE, Presiding Judge.
{¶1} Defendant-Appellant David Saunders appeals from the judgment of the Medina
County Court of Common Pleas. We affirm.
I.
{¶2} Lauren Hatch and Mr. Saunders had been family friends since childhood. Around
2006, the two began a five or six year, on again, off again relationship. After the relationship
ended, the two would still talk and see each other. Additionally, Mr. Saunders indicated he did
some work around Ms. Hatch’s house and claimed to have a key to her house. Mr. Saunders
stated that he would stop by the house and check on Ms. Hatch on a fairly regular basis. Ms.
Hatch denied that Mr. Saunders had a key.
{¶3} At the time of the incident at issue in this case, November 24, 2013, both Mr.
Saunders and Ms. Hatch were dating other people. Nonetheless, Mr. Saunders continued to call
Ms. Hatch and leave her voicemails expressing his affection for her and desire to get back
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together. Ms. Hatch blocked Mr. Saunders’ calls, but nonetheless continued to see and converse
with Mr. Saunders on occasion. She acknowledged that she told Mr. Saunders she would see
him on November 24, 2013, but testified that she did not intend to actually go. Ms. Hatch
testified that the two did not set a time to meet and that she only agreed to go because she feared
he would become violent if she did not. Ms. Hatch testified that Mr. Saunders had hit, kicked,
and pushed her in the past.
{¶4} Around midnight on November 24, 2013, Mr. Saunders left Ms. Hatch another
voicemail. In that voicemail, Mr. Saunders sounded frustrated and angry, stating that he was not
going to call or text Ms. Hatch again because that’s what she wanted. He also indicated that he
should have known better, that he had been pushed enough, and that he could not do it anymore.
He additionally informed Ms. Hatch that he was going to block her and not accept her calls.
{¶5} That evening, Ms. Hatch’s children were staying with her sister and Ms. Hatch
invited her boyfriend, Adam Barnett, over to her house on Huntington Street in Medina, and he
stayed the night. According to Ms. Hatch and Mr. Barnett, the windows and doors were closed
and locked at the time they went to bed. Around 5:40 a.m., Ms. Hatch was awakened by
someone shaking her. When the person turned on the light, she realized it was Mr. Saunders.
Mr. Saunders looked at Mr. Barnett and told Mr. Barnett that he was going “kick [his] a**.” He
then pulled out a knife and threatened to kill Ms. Hatch. Mr. Barnett reached for his clothes and
Mr. Saunders ripped them out of his hands. Ms. Hatch was getting up and Mr. Saunders grabbed
her arms and the two ended up in her son’s bedroom. Mr. Saunders was holding the knife and
Ms. Hatch used her hands and arms to block her face. Then Mr. Barnett came in the bedroom
and he and Mr. Saunders began fighting. Ultimately, Mr. Saunders fled from the residence.
After Ms. Hatch went downstairs and called the police, she and Mr. Barnett noticed that the
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window in the living room was open and the screen was knocked out of it. Additionally, the
front door was unlocked. Police found the screen outside on the ground near the window.
{¶6} Ms. Hatch sustained cuts to her left hand, left elbow, and right ring finger. Mr.
Barnett received lacerations to one of his fingers, face, and back. They both required stitches to
treat some of their wounds. Based upon her investigation, Detective Mary Gross concluded that
the injuries were defensive wounds. Mr. Saunders had a cut on his forehead, which he initially
told police he received while performing a car repair. At trial he claimed to have gotten the
laceration during the altercation.
{¶7} When police initially arrested Mr. Saunders, he denied any involvement in the
assaults; however, he did admit to drinking a lot the night before. He claimed to have been at
home the whole night and stated that he never left his house. Police nonetheless searched his
home and located clothing and shoes with blood stains. The blood stains contained DNA that
was consistent with Mr. Barnett’s and Ms. Hatch’s DNA. Inside Mr. Saunders’ bedroom, police
located a box for a knife, but the knife was not recovered. Additionally, surveillance video
placed a car that Mr. Saunders had access to in the area of Ms. Hatch’s house near the time of the
assaults. Only several months after the assaults did Mr. Saunders change his version of events
and admit to being at Ms. Hatch’s house during the relevant timeframe. However, Mr. Saunders’
version of events was drastically different than Mr. Barnett’s and Ms. Hatch’s; he believed that
Mr. Barnett was at fault and that he should have been charged.
{¶8} Mr. Saunders was indicted on three counts of aggravated burglary and two counts
of felonious assault. Ultimately, the matter proceeded to a jury trial. During the trial, the trial
court declined to allow defense counsel to cross-examine Mr. Barnett about the status of a prior
conviction. Additionally, the trial court refused to instruct the jury on self-defense. The jury
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found Mr. Saunders guilty of all the charges and Mr. Saunders was sentenced to an aggregate
term of 9 years in prison.
{¶9} Mr. Saunders has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON
SELF[-]DEFENSE.
{¶10} Mr. Saunders argues in his first assignment of error that the trial court erred in
failing to instruct the jury on self-defense for the felonious assault charges.
{¶11} “This Court reviews a trial court’s decision to give or decline to give a particular
jury instruction for an abuse of discretion under the facts and circumstances of the case.”
(Citations omitted.) State v. Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 91. Self-
defense is an affirmative defense. See State v. Rust, 9th Dist. Summit No. 23165,
2007-Ohio-50,
¶ 10. “In order for the defendant to successfully raise an affirmative defense, evidence of a
nature and quality sufficient to raise the issue must be introduced.” (Citations omitted.) Rafferty
at ¶ 91. “Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim
of the defense. … [H]owever, … [i]f the evidence generates only a mere speculation or
possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of
the issue to the jury will be unwarranted.” (Internal quotations and citation omitted.) State v.
Fulmer,
117 Ohio St.3d 319,
2008-Ohio-936, ¶ 72.
{¶12} The State maintained that Mr. Saunders committed felonious assault by
knowingly causing or attempting to cause physical harm to Mr. Barnett and Ms. Hatch with a
deadly weapon, i.e. a knife. Thus, Mr. Saunders was charged with using deadly force.
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To establish self-defense in circumstances involving the application of deadly
force, a defendant must prove that he: (1) … was not at fault in creating the
situation giving rise to the affray; (2) … ha[d] a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape
from such danger was in the use of such force; and (3) … [did] not [ ] violate[ ]
any duty to retreat or avoid the danger.
(Internal quotations and citations omitted.) State v. D’Agostino, 9th Dist. Lorain No.
12CA010304, 2014-Ohio-551, ¶ 23.
{¶13} “In addition to the specific requirements for establishing the defense of self-
defense, it is fundamental that, as an affirmative defense, [the defendant] was required to
establish that he had a justification for admitted conduct. … If his defense was merely a
denial or contradiction of the State’s evidence against him, no instruction on the affirmative
defense of self-defense was warranted.” (Internal quotations and citations omitted.) State v.
Archer, 9th Dist. Summit No. 26848, 2014-Ohio-1207, ¶ 19.
{¶14} Mr. Saunders testified to the following version of events. A few days prior to
November 24, 2013, Mr. Saunders asked Ms. Hatch if she would go to the cemetery with him on
November 22 because it was the one-year anniversary of his father’s death. Ms. Hatch said that
she was busy that day but could go November 24. Mr. Saunders believed that, although they had
not agreed on a specific time, they were going to the cemetery in the morning of November 24
and that he would go over to her house and they would go together.
{¶15} That evening Mr. Saunders had difficulty sleeping and decided to head over to
Ms. Hatch’s house as he needed to talk to someone. He parked across the street from the house
in a parking lot, despite there being ample room in her driveway. He arrived around 5:30 a.m.
{¶16} According to Mr. Saunders, he walked to the house and went to the front door
first. The screen door was locked (and was unable to be opened with a key) and so Mr. Saunders
knocked but there was no answer. Mr. Saunders walked to the back of the house and noticed the
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screen to one of the windows on the grass. He assumed the cat had knocked it out. He
proceeded to the back door and knocked again. Mr. Saunders tried the back door, found it
unlocked, and entered the residence. He called out to Ms. Hatch but there was no answer. Mr.
Saunders went upstairs and encountered Ms. Hatch right outside her bedroom. According to Mr.
Saunders, she stated, “Oh, I’m sorry. I’m sorry, Dave. Now’s not a good time. … It’s not a
good time. Just go. I’ll call you in a little bit.” Instead of leaving, Mr. Saunders began asking
Ms. Hatch questions about whether she was alright. As he was doing so, Mr. Barnett came out
from behind Ms. Hatch, grabbed Mr. Saunders and pushed him up against a dresser, and began
yelling at Mr. Saunders to leave. Mr. Saunders noticed that Mr. Barnett had a knife. Mr.
Saunders pushed Mr. Barnett, and Mr. Barnett stumbled back and fell against another wall. The
next thing Mr. Saunders knew, Mr. Barnett was on top of him holding a knife on Mr. Saunders’
forehead. Mr. Barnett kept asking if Mr. Saunders was going to leave. At the same time, Ms.
Hatch was trying to break up the altercation and also kept telling Mr. Saunders to leave. Mr.
Barnett then let Mr. Saunders up and he proceeded out the front door and jogged back to his car.
{¶17} Mr. Saunders asserted he was shocked by what happened because he and Ms.
Hatch had plans that day. While he was troubled by the events, he decided not to call the police
to report the incident because he did not want to get Ms. Hatch in trouble. He also testified that
he was unaware that either Mr. Barnett or Ms. Hatch had been cut. While Mr. Saunders averred
that he had blood all over him, he thought it was his own blood, as he received a cut to his
forehead. Mr. Saunders denied bringing a knife to the house and denied attacking anyone.
{¶18} Even if we were to accept Mr. Saunders’ testimony as true, we could not conclude
the trial court abused its discretion in failing to give a self-defense instruction. Mr. Saunders
never admitted to having or using the knife, nor did he acknowledge that he attempted to, or
7
actually did, cause physical harm to Mr. Barnett and Ms. Hatch. In fact, Mr. Saunders seemed to
have no idea that Mr. Barnett and Ms. Hatch were even injured or have any knowledge of how
they were injured. Instead, it appears that Mr. Saunders was asserting that, if he injured the
victims, he did not act with the necessary mens rea, not that he knowingly caused physical harm
to the victims with a knife and was justified in doing so. See Archer, 2014-Ohio-1207, at ¶ 19.
{¶19} However, even if we were to assume that Mr. Saunders’ testimony presented
evidence of a justification, we could not conclude that he presented sufficient evidence of the
other elements necessary to warrant a self-defense instruction. Even viewing the testimony in a
light most favorable to Mr. Saunders, there is little to support the conclusion that he had
permission to be in the house at that particular time. Even if Mr. Saunders had keys and had
plans to see Ms. Hatch at some point in the morning, nothing suggests that Mr. Saunders had
permission to be in the house in the pre-dawn hours of the morning. Mr. Saunders first knocked
on the doors, suggesting that he was seeking permission to enter. Further, any notion that Mr.
Saunders had permission to be in the residence was dispelled when Ms. Hatch told him to leave.
Thus, the trial court could have concluded that Mr. Saunders failed to present sufficient evidence
that he was not at fault in creating the situation that gave rise to the affray. See State v. Cobb,
153 Ohio App.3d 541,
2003-Ohio-3821, ¶ 11 (1st Dist.) (concluding that self-defense was not
established when the evidence demonstrated that the defendant pushed his way into the victim’s
apartment because the defendant was at fault in creating the situation that gave rise to the affray);
see also State v. Depew, 4th Dist. No. 00CA2562,
2002-Ohio-6158, ¶ 35 (“By entering his
neighbor’s yard, even at the victim’s urging to do so, and choosing to confront the victim,
appellant voluntarily entered into the encounter with the victim, who he knew to be a person
prone to violence, especially when drinking, as is apparently the case here. Accordingly,
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appellant was precluded from asserting the affirmative defense of self-defense because he has
not put forth evidence that he did not create the situation that gave rise to the affray.”); State v.
McAllister, 1st Dist. Clermont Nos. 858, 859, 1980 WL 353200, *2 (Feb. 13, 1980) (“Appellant,
in entering the White home to burglarize it, created the situation which gave rise to the affray.
Moreover, there is no evidence that he attempt[ed] to retreat to avoid the danger when George
White entered the room. The trial court therefore correctly refused to instruct the jury on the
affirmative defense of self-defense.”).
{¶20} Additionally, the trial court could have reasonably concluded that Mr. Saunders’
testimony failed to present sufficient evidence that he had “a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape from such
danger was in the use of such force[.]” See D’Agostino, 2014-Ohio-551, at ¶ 23. Mr. Saunders
did not testify that he had no means of escape other than using force. And while he did testify
that, at one point, he was pinned against a dresser, he also testified that, after that, he pushed Mr.
Barnett away and Mr. Barnett stumbled back against a wall. There was no testimony that that
event did not provide Mr. Saunders with an opportunity to extricate himself from the situation.
Further, there was no evidence that Mr. Saunders could not have avoided the situation all
together by leaving when Ms. Hatch first asked him to go. See McAllister at *2.
{¶21} Given all of the foregoing, we determine the trial court did not abuse its discretion
in failing to give a self-defense instruction. Mr. Saunders’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY NOT ALLOWING MR. SAUNDERS’
COUNSEL TO CROSS EXAMINE THE ALLEGED VICTIM ON HIS
PROBATION, SPECIFICALLY BOTH FOR HIS CHARACTER FOR
TRUTHFULNESS AND AS A POSSIBLE MOTIVE TO LIE TO POLICE AS
TO WHO WAS THE AGGRESSOR ON THE NIGHT IN QUESTION.
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{¶22} Mr. Saunders asserts in his second assignment of error that the trial court erred in
failing to allow him to cross-examine Mr. Barnett about the status of his conviction, as such
provided evidence of his character for truthfulness or untruthfulness and of a possible motive to
lie. While Mr. Saunders additionally asserts in the argument portion of his brief that the trial
court’s ruling also violated his right to confront witnesses, such an argument is outside the scope
of his stated assignment of error, see State v. Bennett, 9th Dist. Lorain No. 14CA010579, 2015-
Ohio-2887, ¶ 13, and is also undeveloped in his brief. See App.R. 16(A)(7).
{¶23} “The trial court possesses broad discretion in determining the admission of
evidence.” State v. Gray, 9th Dist. Summit No. 27365, 2015-Ohio-1248, ¶ 55. “Absent an issue
of law, this Court, therefore, reviews the trial court’s decision regarding evidentiary matters
under an abuse of discretion standard of review.” (Citation omitted.)
Id. An abuse of discretion
“implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶24} During the State’s direct examination of Mr. Barnett, Mr. Barnett testified that he
had prior convictions for driving under the influence of alcohol and for improperly transporting a
firearm. There was no testimony about whether Mr. Barnett was on probation for either offense.
On cross-examination, defense counsel sought to ask Mr. Barnett what the status of the felony
weapons charge was on November 24, 2013. The State objected and the following discussion
took place:
The Court: Please tell me what you’re trying to show.
[Defense Counsel]: I believe [Mr. Barnett] is going to testify that the case was
pending at the time. He had just did a change of plea and was sentenced and he
was on probation at the time, and I’m going to ask him about the fact that he was
on probation at the time. I want to ask him about the fact while on probation, one
of his requirements of probation was not to have any weapons and not to drink
any alcohol and had a driver’s license suspension.
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The Court: Okay. The objection is sustained. The relevance is dubious and the
probative value is substantially outweighed by the prejudicial effect, 403.
[Defense Counsel]: If I may make a record[], Your Honor?
…
[Defense Counsel]: I believe that in the direct testimony, there was discussion of
why he was at the house. There was discussions of him being at the house. It is a
core part of our case that the two victims have made up at least portions of this
story and I believe that the motivation for saying that was to keep [Mr. Barnett]
out of … trouble.
[The Court]: There is no evidence to that effect so far except your assertion, and I
repeat that … the prejudicial effect of this evidence substantially outweighs the
probative value.
[Defense Counsel]: Then, Your Honor, I would move at the conclusion of this
testimony he not be released from his subpoena so that if my client testifies and
puts this question to the record, that he then be allowed so I can call him again as
my case in chief.
…
[The Court]: … If you wish, I can tell [Mr. Barnett] to remain available in case
we need him further. I can do that.
{¶25} Thus, Mr. Saunders’ counsel sought to admit evidence he believed would
demonstrate not only Mr. Barnett’s character for untruthfulness, but also that Mr. Barnett and
Ms. Hatch had a motive to lie about who possessed the knife, as Mr. Barnett’s possession of the
knife possibly would have violated his probation, if he was on probation. The trial court did not
conclude the testimony was inadmissible under either Evid.R. 608(B) (governing admission of
specific instances of conduct probative of character for truthfulness/untruthfulness) or Evid.R.
404(B) (governing admissibility of other acts evidence to demonstrate, inter alia, motive).
Instead, it found that the probative value of the potential testimony was substantially outweighed
by the danger of prejudice. See Evid.R. 403(B). At the point in time that Mr. Barnett testified,
there was no testimony that anyone other than Mr. Saunders possessed a weapon that night. In
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fact, subsequent to the above exchange, Mr. Barnett denied possessing a weapon during the
altercation. In addition, at this point in the trial, Mr. Saunders had already elicited testimony
from Ms. Hatch that she did not know whether Mr. Barnett had a criminal record and that she
would not have made up a story to keep Mr. Barnett from getting in trouble. Accordingly, at that
time defense counsel’s theory appeared to be based more on speculation than upon admitted
evidence.
{¶26} Mr. Saunders, in his argument, largely focuses on the admissibility of the
evidence under Evid.R. 608(B) and spends little time discussing why the trial court abused its
discretion in finding that admission of the evidence would violate Evid.R. 403(B). While Mr.
Saunders would later testify that Mr. Barnett was the one who possessed the knife, Mr. Saunders’
counsel failed to recall Mr. Barnett to the stand or renew his request to have the testimony
admitted after Mr. Saunders testified. Thus, it is difficult to conclude that Mr. Saunders
preserved the argument he now makes.
{¶27} Nonetheless, even assuming the argument was preserved and that the trial court
abused its discretion in failing to allow the testimony, we cannot say that reversible error
occurred. Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded.” “Crim.R. 52(A) asks whether the rights
affected are ‘substantial’ and, if so, whether a defendant has suffered any prejudice as a result.”
State v. Harris, 142 Ohio St.3d 211,
2015-Ohio-166, ¶ 36.
{¶28} The State presented overwhelming evidence of Mr. Saunders’ guilt that included
the testimony of both victims, DNA evidence, and the testimony of police officers. Further, Mr.
Saunders’s testimony was marred by credibility issues including the fact that Mr. Saunders
denied any involvement in the altercation, or even being at the scene, for most of the police’s
12
investigation. We cannot say that allowing Mr. Saunders to attempt to procure the testimony that
he sought to have admitted would have altered the outcome of the trial. See id. at ¶ 36-37. We
note that Mr. Barnett denied having a weapon that night, while an empty knife box had been
recovered from Mr. Saunders’ apartment. And as Mr. Saunders pointed out in his brief, “[t]here
[wa]s no guarantee what [Mr. Barnett] would have stated if asked [about the status of his felony
conviction].” Given the entirety of the record, we conclude any error on the part of the trial
court was harmless beyond a reasonable doubt. See id. Even if Mr. Barnett had testified that he
was on probation at the time and that he was prohibited from having any weapons, we conclude
that the State presented evidence establishing Mr. Saunders’ guilt beyond a reasonable doubt.
See id.
{¶29} Mr. Saunders’ second assignment of error is overruled.
III.
{¶30} Mr. Saunders’ assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
SEAN BUCHANAN, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
