[Cite as State v. Gray, 2016-Ohio-5869.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 26473
                                                 :
 v.                                              :   Trial Court Case No. 13-CR-3237
                                                 :
 CURTIS R. GRAY                                  :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :


                                            ...........

                                           OPINION

                          Rendered on the 16th day of September, 2016.

                                            ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                           .............

HALL, J.

        {¶ 1} Curtis Gray appeals from his conviction for murder. Finding no error, we
                                                                                            -2-


affirm.

                                         I. Background

          {¶ 2} Around 12:40 a.m., on October 10, 2013, a woman watching television in her

home on Quitman Street in Dayton heard screams for help coming from the abandoned

house next door: “Help me. Please help me. Call the police. He’s killing me.” (Trial Tr.

198). The woman called 911. The first police officer to arrive saw Gray with a knife in his

hand kneeling over the body of Daniel Mooty. When Gray saw the officer, he dropped the

knife and fled. The officer soon caught Gray and arrested him. Mooty was pronounced

dead at the scene. The coroner’s examination of the body revealed at least 110 stab

wounds.

          {¶ 3} Gray was indicted on October 18, 2013, on three counts of murder (purposely

causing death, R.C. 2903.02(A); causing death as a proximate result of committing

felonious assault with a deadly weapon, R.C. 2903.02(A) and 2903.11(A)(2); and causing

death as a proximate result of committing felonious assault by serious physical harm,

R.C. 2903.02(A) and 2903.11(A)(1)). Gray’s defense at his jury trial was self-defense. He

took the stand and told the jury that Mooty attacked him and that he (Gray) believed that

Mooty was going to kill him. Gray wanted to present the testimony of a forensic

psychopathologist to explain that his (Gray’s) reaction to the threat posed by Mooty may

be explained by the abuse that he suffered during his childhood. But on the State’s

motions in limine, the trial court ruled that this testimony was not admissible.

          {¶ 4} The jury rejected Gray’s self-defense claim and found him guilty on all counts.

The counts merged, and the State elected sentencing on purposeful murder. The trial

court sentenced Gray to prison for 15 years to life.
                                                                                           -3-


       {¶ 5} Gray appealed.

                                        II. Analysis

       {¶ 6} Gray assigns two errors to the trial court. The first assignment of error alleges

that the court erred by sustaining the State’s motions in limine to exclude the expert

testimony on self-defense. And the second assignment of error alleges that the verdicts

are against the manifest weight of the evidence. We begin with the second assignment

of error.

                              A. The weight of the evidence

       {¶ 7} In a weight-of-the-evidence challenge, “ ‘[t]he court, 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 conviction must

be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678
N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717

(1st Dist. 1983). “ ‘The discretionary power to grant a new trial should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.,

quoting Martin at 175.

       {¶ 8} There is no question that Gray murdered Mooty. The only question is whether

Gray acted in self-defense. “ ‘To establish self-defense, a defendant must prove the

following elements: (1) that the defendant was not at fault in creating the situation giving

rise to the affray; (2) that the defendant 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 the use of such force; and (3) that the defendant did not violate any duty to retreat or
                                                                                        -4-

avoid the danger.’ ” 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, 759 N.E.2d 1240 (2002).

Often missing from quotations of the self-defense formulation is the requirement that the

force used be reasonable. A person is only privileged to use that force which is reasonably

necessary to repel the attack:

             Another component contained within the second element is the

      defendant’s bona fide belief that the use of force was “reasonably necessary

      to repel the attack.” [State v. Hendrickson, 4th Dist. Athens No. 08CA12,

      2009-Ohio-4416, ¶ 23], citing State v. Williford, 49 Ohio St. 3d 247, 249, 551
N.E.2d 1279 (1990), citing State v. McLeod, 82 Ohio App. 155, 157, 80
N.E.2d 699 (9th Dist.1948). In other words, a defendant must show that

      “that the degree of force used was ‘warranted’ under the circumstances and

      ‘proportionate’ to the perceived threat.” Hendrickson at ¶ 31, citing State v.

      Palmer, 80 Ohio St. 3d 543, 564, 687 N.E.2d 685 (1997). “If * * * the amount

      of force used is so disproportionate that it shows an ‘unreasonable purpose

      to injure,’ the defense of self-defense is unavailable.” State v. Macklin, 8th

      Dist. Cuyahoga No. 94482, 2011-Ohio-87, 2011 WL 208315, ¶ 27, quoting

      State v. Speakman, 4th Dist. Pickaway No. 00CA035 (Mar. 27, 2001).

      Accord State v. Kimmell, 3rd Dist. Wyandot No. 16-10-06, 2011-Ohio-660,

      ¶ 20, quoting Hendrickson at ¶ 33 (“Self-defense * * * is inappropriate if the

      force used is ‘so grossly disproportionate as to show revenge or as criminal

      purpose.’ ”). “[I]t is only when one uses a greater degree of force than is

      necessary under all the circumstances that it is not justifiable on the ground
                                                                                          -5-

       of self-defense.” McLeod, 82 Ohio App. at 157.

State v. Waller, 4th Dist. Scioto Nos. 15CA3683 & 15CA3684, 2016-Ohio-3077, ¶

26. In Gray’s case, the trial court correctly instructed the jury, consistent with Ohio

Jury Instructions, CR Section 421.23(3) (Rev. Aug. 16, 2006), that “[i]f [the]

defendant used more force than was [reasonably] necessary and if the force used

[was] greatly disproportionate to the apparent danger, then the defense of self-

defense is not available.” (Trial Tr. 625).

       {¶ 9} The burden of proof to prove this affirmative defense is on the defendant.

R.C. 2901.05(A). “ ‘If the defendant fails to prove any one of these elements by a

preponderance of the evidence he has failed to demonstrate that he acted in self-

defense.’ ” (Emphasis sic.) State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, 772
N.E.2d 81, ¶ 73, quoting State v. Jackson, 22 Ohio St. 3d 281, 284, 490 N.E.2d 893

(1986).

                                    The State’s evidence

       {¶ 10} The State presented the testimony of the woman who called 911 and two

Dayton police officers who arrived first at the scene of the murder. It also presented

testimony from an evidence technician and a paramedic about what they saw at the

scene. The State called the coroner to testify about the stab wounds that he found on

Mooty’s body and called a forensic scientist to testify about her examination of some of

the evidence.

       {¶ 11} The woman who called 911 testified about what she heard. She said that

she heard a man screaming “Help me. Please help me. Call the police. He’s killing me.”

(Trial Tr. 198). She said that the man continued to scream but his cries grew quieter. Four
                                                                                             -6-


to five minutes later, said the woman, the cries stopped.

       {¶ 12} Officer Christopher Page was the first on the scene. Officer Page said that

he saw Gray, knife in hand, kneeling over Mooty’s body. Officer Page identified himself

as a police officer and told Gray to drop the knife. Gray complied and then took off running.

When Page caught up with him, Gray had already climbed over one fence and was trying

to climb over another. Page pointed his gun at Gray and ordered him to the ground, which

Page had to do several times before Gray finally came down from the fence. Gray put his

hands in the air and said, “Okay, I give up.” (Trial Tr. 226). Gray then said, “This is a crime

of passion.” (Id. at 226-227). Officer Page ordered Gray onto his stomach, and Gray again

said, “this is a crime of passion,” (Id. at 227). When Page searched Gray, he found

Mooty’s hospital wristband in Gray’s pants pocket. Officer Robert Clever, who arrived

soon after Officer Page, also testified about the arrest. Clever said that when Page caught

up with Gray, Gray said, “This is a crime of passion.” (Id. at 250-251). “[T]hree or four

times,” said Clever, “he [Gray] told us, he said, ‘Guys, this is a crime of passion. I’m telling

you it’s a crime of passion.’ ” (Id. at 251).

       {¶ 13} Evidence technician Craig Stiver, also a Dayton police officer, testified that

he found Gray’s glasses down the fence line on the opposite side of the house from where

Mooty lay. He said that the glasses were bent. Stiver also said that Gray’s jacket had

white stains on the back, likely from the peeling paint on the house. Officer Stiver said

that if someone were to travel from the spot where Mooty’s body lay along the back of the

house to the spot where he found Gray’s glasses (as Officer Page said Gray did), it is

“very possible” that the person would brush up against the house and get white flakes of

paint on their jacket. (Id. at 334-335).
                                                                                       -7-




       {¶ 14} Paramedic George Green was the first to examine Mooty at the scene and

testified about what he saw. Green said that Mooty was laying on his right side with his

left side facing up. Mooty’s arm was laying across his head, covering his face, and his

shirt was raised, exposing his abdomen. Green described the wounds that he saw: “His

abdomen had been eviscerated. His bowels were hanging out. On his lower right

quadrant, there were open cavities in the lower left quadrant that just—nothing had made

its way out of yet. There was a large cavity about two ribs up, a large wound where we

could see right into his chest cavity, maybe two inches in diameter.” (Id. at 265).

       {¶ 15} The chief deputy coroner at the Montgomery County Coroner’s Office, Dr.

Lee Lehman, testified about his examination of Mooty’s body. Dr. Lehman said that Mooty

was 6-feet-1-inch tall and weighed 212 pounds. Mooty had cocaine and alcohol in his

system when he died, though Dr. Lehman admitted that the amount of either could not be

accurately determined. Mooty died of multiple stab and incised wounds, said Dr.

Lehman—at least 110 of them, a conservative count. Lehman explained that there were

overlapping stab wounds, where the knife pierced the body more than once in the same

spot. These he counted as a single wound. Dr. Lehman noted 42 stab wounds to Mooty’s

chest and abdomen, five of which pierced his lung and four that pierced his heart; 19 stab

wounds to his head and face, four of which penetrated Mooty’s skull, three that went

through his skull, and one that cut through his cheek and neck and pierced his voice box

and larynx; 8 stab wounds to Mooty’s stomach, with one penetrating his large intestine

and five penetrating his small intestine; 17 stab wounds to Mooty’s left leg; and 2 stab

wounds to his back. The four stab wounds to Mooty’s heart, said Dr. Lehman, were fatal.
                                                                                         -8-


He said that typically a person stabbed in the heart will become weaker and weaker until

the person passes out and eventually dies. It was Dr. Lehman’s opinion that once Mooty’s

heart was stabbed he had about 30 seconds of conscious activity and that he likely died

in about four minutes. Dr. Lehman noted that most, if not all, of the wounds are on Mooty’s

left side. Lehman said that this is consistent with Mooty laying on his right side, with his

left side exposed. Also, despite having been stabbed at least 42 separate times in the

chest and abdomen, Mooty’s shirt had only 3 holes in it. Dr. Lehman also found 17 stab

wounds to Mooty’s left forearm and 15 stab wounds to his right hand and wrist. Which,

Lehman said, are consistent with defensive wounds.

       {¶ 16} Lastly, Emily Draper, a DNA forensic scientist at the Miami Valley Regional

Crime Laboratory, testified about her examination of the clothing that Gray wore. She said

that there was mud on the knees of Gray’s pants but none on the back. She found Mooty’s

blood on Gray’s hands and on the sleeves of his jacket, but nowhere else except for a

small amount on the back of his pants and on the inside hem of the back of his shirt.

                                 The defense’s evidence

       {¶ 17} Gray took the stand in his own defense and testified about what happened.

He said that after having multiple drinks at multiple bars he was walking home from work

in the Oregon District when Mooty, who Gray knew as a local panhandler, asked him for

money. After telling Mooty no, Mooty started following him home. Gray said that after

being followed for several blocks, he decided to take a detour into the neighborhood near

the intersection of Wayne and Wyoming Streets in order to try and lose Mooty or tire him

out. Gray said that after several more blocks he heard behind him breathing and shoes

scraping on the sidewalk. He looked back and saw that Mooty was within arm’s reach of
                                                                                                 -9-


him, so he took off running. Gray took only two or three steps before Mooty pushed him

to the ground. He fell on the grass on his hands and knees, and his glasses flew off. Gray

got up and ran toward an abandoned house. When he neared the house, Mooty pushed

him, and Gray’s back hit the side of the house. Then Mooty forced Gray to the ground

onto his back. Gray yelled out, “ ‘Help, stop, he’s trying to kill me.’ ” (Trial Tr. 548).

Standing over Gray, Mooty said, “ ‘I’m going to get something tonight.’ ” (Id. at 545). Then

Mooty straddled Gray, holding him down. Gray said that he believed Mooty was going to

kill him: “I felt that if I didn’t get away he was going to kill me,” (Id. at 546); “I believed that

he was trying to kill me because he had me on the ground, on top of me, against the wall

with his hands on me, and coupled with the fact that he had followed me this entire way,”

(Id. at 565). Gray admitted that he did not see a weapon. While he said at trial that he had

heard a rumor that Mooty carried a box cutter, Gray said that he did not remember thinking

about this that night. With Mooty on top of him holding him down, Gray pulled out a knife

(which he had started carrying after being mugged a year before) from his left pants

pocket and stabbed Mooty’s left leg. Gray continued to stab Mooty, but according to Gray,

Mooty did not stop the attack. Mooty tried to grab the knife and Gray’s wrist and throat.

Gray said that Mooty was on top of him the whole time and that Mooty never reacted to

being stabbed. Finally, Gray managed to roll Mooty off. Since Mooty did not try to get

back up, said Gray, he stopped stabbing. Shortly after, a police officer appeared and told

Gray to drop the knife. Gray said that he did not remember what happened next.

       {¶ 18} Gray agreed that he had Mooty’s blood on only his jacket, the back of his

shirt, his hands, and the handle and blade of the knife. And he admitted that he had no

injuries at all. Gray said that he is 5-feet-10-inches tall and weighed 175-180 pounds. He
                                                                                              -10-


denied taking the wrist band that Officer Page found in his pocket, claiming that the band

was planted on him.

       {¶ 19} The defense also presented the testimony of four witnesses who said that

they knew Mooty as an aggressive panhandler who was frequently in the area of the

restaurant where Gray worked. One witness testified that she saw Mooty following Gray

that night, shortly before the murder occurred.

                                 The weight of the evidence

       {¶ 20} In his argument, Gray cites the evidence that Mooty had a reputation as

being aggressive and that Mooty was following him that night. Gray also points out that

his glasses were found a good distance away from Mooty’s body. Gray says that the

evidence, including the location and direction of Mooty’s wounds, support his account of

the events—that Mooty was on top of him, that Gray was defending himself, and that

Mooty only got off Gray after Gray had repeatedly stabbed him. Gray also says that the

white markings on the back of his jacket show that Mooty shoved him into the side of the

house. Finally, Gray cites the coroner’s testimony that Mooty could have kept fighting for

seconds or even minutes after being stabbed in the heart.

       {¶ 21} “The credibility of the witnesses and the weight to be given to their testimony

is a matter for the trier of facts, the jury here, to resolve.” State v. White, 2d Dist.

Montgomery No. 20324, 2005-Ohio-212, ¶ 65, citing State v. DeHass, 10 Ohio St. 2d 230,

227 N.E.2d 212 (1967). “This court will not substitute its judgment for that of the trier of

facts on the issue of witness credibility unless it is patently apparent that the trier of facts

lost its way in arriving at its verdict.” (Citation omitted.) Id. at ¶ 67. Here, there are no real

conflicts in the evidence. Only two people know what happened between Gray and Mooty,
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and one of them is dead. Gray did not dispute the details of his capture, because he does

not remember what happened after he ran. In this case, then, the jury simply did not

believe Gray’s account.

       {¶ 22} Several inconsistencies between Gray’s account and other evidence make

it reasonable for a jury not to believe Gray’s version of events. That Gray fled when he

saw Officer Page undermines his claim of self-defense. Also, when he was finally caught,

Gray never mentioned being attacked by Mooty or having acted in self-defense. Rather,

he said several times that, “This is a crime of passion.” (Trial Tr. 226-227, 251). Gray said

that he stopped stabbing Mooty as soon as Mooty stopped his attack. The jury could have

reasonably concluded that it was not necessary for Gray to stab Mooty 110 times before

Mooty finally let go. And if Mooty were pinning Gray down and putting his hands on Gray’s

throat the entire time as Gray said, it is hard to explain why Mooty had defensive wounds

on his forearm and hand. According to Gray, his glasses were knocked off when Mooty

pushed him down the first time, which would have been near the sidewalk. But Gray’s

glasses were found on the opposite side of the house, along the fence, nowhere near the

spot where he was pushed. This is consistent with them falling off while Gray was climbing

over the fence during his flight from Officer Page.

       {¶ 23} It is the physical evidence that calls Gray’s account into question the

loudest. Gray testified that the entire time that he struggled with Mooty he was lying on

his back with Mooty on top. This would mean that Gray made 110 holes in Mooty’s body—

including in his arms, hands, stomach, abdomen, chest, face and head—all while Mooty

leaned over him. Yet most of the blood was found only on Gray’s hands and sleeves. It

would be reasonable to think that Mooty’s blood should have been smeared all over Gray.
                                                                                        -12-


Moreover, no mud or dirt was found on the back of Gray’s pants or jacket—only on the

knees of his pants. Furthermore, Mooty’s shirt had only three holes in it, despite having

been stabbed at least 42 separate times in the chest and abdomen. And almost all of the

stab wounds were found on Mooty’s left side. What is more, the coroner found 17 stab

wounds in Mooty’s left forearm and 15 stab wounds in his right hand and wrist. All of this

evidence suggests that Gray did not stab Mooty from below but from above. It suggests

that Gray kneeled beside a prone Mooty laying on his right side, with his left side facing

up, and that Mooty tried to protect himself with his right hand and by holding his left arm

over his head and face. Indeed, these are the positions in which Officer Page first saw

them.

        {¶ 24} The jury did not lose its way simply because it did not believe Gray’s

account. Compare White, 2005-Ohio-212, at ¶ 69 (“The jury in this case did not lost its

way simply because it chose to believe the State’s witnesses and disbelieve Defendant,

which it was entitled to do.”). On this record, the jury could have reasonably concluded

that the force that Gray used was disproportionate to the threat that Mooty posed. The

manifest weight of the evidence is not against the jury’s finding that Gray did not act in

self-defense.

        {¶ 25} The second assignment of error is overruled.

                   B. The admissibility of psychological testimony

        {¶ 26} To help prove his claim of self-defense, Gray sought to present the expert

testimony of Dr. Mary M. Melton, a certified forensic psychopathologist, who had

examined Gray and prepared a written report. In her report, Dr. Melton states that Gray

had a rough childhood, suffering neglect and physical, emotional, and possibly sexual
                                                                                            -13-


abuse at the hands of his mother and her various boyfriends. It was Dr. Melton’s opinion

that Gray’s childhood experiences explain his extreme response to the threat posed by

Mooty.

         {¶ 27} The State filed motions in limine to preclude Dr. Melton from testifying. On

the first day of trial, the trial court sustained the motions, giving its reasons on the record.

The court said that it had reviewed Dr. Melton’s written report and that most of her

opinions supported the partial defense of diminished capacity, which involves expert

testimony that the defendant’s abnormal mental condition shows that the defendant did

not have the specific mental state required for the crime, though he was aware that his

action was wrong and was able to control it, State v. Wilcox, 70 Ohio St. 2d 182, 185, 436
N.E.2d 523 (1982). But in Ohio, diminished capacity is not a defense. State v. Fulmer,

117 Ohio St. 3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 66. And Gray concedes that Dr.

Melton could not testify about those aspects of her report.

         {¶ 28} The court also ruled that Dr. Melton’s opinions supporting Gray’s claim of

self-defense were inadmissible. The second element of a self-defense claim is “ ‘that the

defendant 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 the use of such force.’ ”

Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 258, quoting

Barnes, 94 Ohio St. 3d at 24, 759 N.E.2d 1240. The trial court here said that expert

testimony on this element is generally admissible only in cases of battered-woman or

battered-child syndrome in which the defendant was abused by the “victim.”

         {¶ 29} Although he objected to the trial court’s ruling “for the record,” Gray did not

proffer Melton’s testimony during his case-in-chief or ask the trial court to reconsider its
                                                                                             -14-


ruling or otherwise seek to admit the testimony. “[A] ruling on a motion in limine may not

be appealed and * * * objections to the introduction of testimony or statements of counsel

must be made during the trial to preserve evidentiary rulings for appellate review.” Gable

v. Gates Mills, 103 Ohio St. 3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34. “Absent a

proffer of the disputed evidence when the issue is actually reached during trial, even a

renewal of a motion in limine on the record prior to opening statements does not preserve

the claimed error.” (Citation omitted.) Estate of Beavers v. Knapp, 175 Ohio App. 3d 758,

2008-Ohio-2023, 889 N.E.2d 181, ¶ 69 (10th Dist.). By failing to preserve this issue, Gray

forfeited his right to object on appeal. We do however have Melton’s report and also

conclude that if we did review the trial court’s ruling, we would find no error.

       {¶ 30} “Expert testimony ordinarily may not be admitted to establish a self-defense

claim.” State v. Gott, 6th Dist. Lucas No. L-11-1070, 2013-Ohio-4624, ¶ 19. Evid.R.

702(A) requires expert testimony to “either relate[] to matters beyond the knowledge or

experience possessed by lay persons or dispel[] a misconception common among lay

persons.” Ohio courts uniformly hold that expert testimony supporting the second element

of a self-defense claim does not satisfy Evid.R. 702(A), because “ ‘ “the question of

reasonableness is quintessentially a matter of applying the common sense and the

community sense of the jury to a particular set of facts and, thus, it represents a

community judgment.” ’ ” State v. Johnson, 10th Dist. Franklin No. 02AP-373, 2002-Ohio-

6957, ¶ 38, quoting State v. Salazar, 182 Ariz. 604, 610, 898 P.2d 982 (App. 1995),

quoting Wells v. Smith, 778 F. Supp. 7, 8 (D.Md.1991); Gott at ¶ 20 (quoting the same). “

‘[J]urors are capable of determining whether the use of force in self-defense is reasonable

* * *.’ ” Id., quoting Salazar at 610. In sum, it is “within the province of the jury to evaluate
                                                                                        -15-


whether defendant had reasonable grounds to believe and an honest belief that he was

in immediate danger of death or great bodily harm and that his only means of escape

from such danger was by the use of deadly force.” Id. at ¶ 22. We just recently followed

Gott and held that, except in battered-woman and battered-child cases, expert testimony

is not admissible to establish a self-defense claim. State v. Stargell, 2d Dist. Montgomery

No. 26446, 2016-Ohio-5653, ¶ 51-52.

      {¶ 31} The Ohio Supreme Court has carved out exceptions to this general rule in

cases where the defendant suffers from battered-woman syndrome or battered-child

syndrome as a result of abuse at the hands of the “victim.” See State v. Koss, 49 Ohio

Std.3d 213, 551 N.E.2d 970 (1990) (battered-woman syndrome), and State v. Nemeth,

82 Ohio St. 3d 202, 694 N.E.2d 1332 (1998) (battered-child syndrome). The Court has

said that in these cases Evid.R. 702(A) may be satisfied because expert testimony may

help the jury determine whether the defendant had reasonable grounds for an honest

belief that she was in imminent danger, by helping the jury understand these syndromes

and helping dispel popular misconceptions that the jury may have about people who

suffer from these syndromes. See Koss at 216.1



1 “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 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.’ ”
(Citation omitted.) Koss at 216, quoting State v. Hodges, 239 Kan. 63, 68-69, 716 P.2d
563 (1986).
                                                                                      -16-




        {¶ 32} Here, Dr. Melton’s testimony does not fit the rationale given for the

exceptions in battered-syndrome cases. Whatever problems Gray has, they are not the

result of abuse by Mooty. Also, Gray does not mention any common misconceptions that

Melton’s testimony would dispel. He argues only that her testimony would help the jury

understand why the events of his childhood might explain his extreme response to the

alleged threat posed by Mooty.

        {¶ 33} Furthermore, the trial court could have concluded that Dr. Melton’s

testimony was unnecessary or even irrelevant. If Gray’s account of the murder was

believed, the jury would have no difficulty understanding why Gray acted like he did; no

expert explanation would be necessary. The Ohio Supreme Court held the same on

similar facts in the battered-woman case of State v. Sallie, 81 Ohio St. 3d 673, 676, 693
N.E.2d 267 (1998). In that case, the defendant asserted a claim of self-defense against

a charge of manslaughter for shooting and killing her boyfriend. At trial, she gave her

account of the shooting, which included her claim that he physically attacked her and, as

he was choking her, threatened to kill her. In an ineffective-assistance-of-counsel claim

on appeal, the defendant argued that counsel should have presented expert testimony

on battered-woman syndrome because it was essential to explain why she initially

obtained the gun that she used. But the Court disagreed and said that considering her

account of the shooting, expert testimony on battered-woman syndrome was

unnecessary to show an honest belief in the imminent danger of death or great bodily

harm:

              The real issue in [the defendant]’s case was not whether she suffered
                                                                                         -17-


       from battered woman syndrome, but whether [her] version of the facts was

       credible. If the jury believed events occurred as [she] claims, it could have

       properly determined she reasonably believed she was in imminent danger

       of death or great bodily harm and thus acted in self-defense.

              On the facts as [the defendant] related them, the jury could make the

       determination [she] acted in self-defense regardless of whether [the

       boyfriend] had previously abused her, or whether the night [he] was killed

       was the first time he attacked [the defendant]. [Her] trial counsel might

       reasonably have concluded testimony on battered woman syndrome was

       simply not relevant under the facts of this case.

Sallie at 676. “[E]xpert testimony is inadmissible,” said the Court, “if it concerns matters

‘within the ken of the jury.’ ” Id., quoting Koss at 216. Assuming that the defendant’s

account of the shooting is true, continued the Court, “expert testimony would be

unnecessary to aid the jury in determining whether a woman being choked and

threatened with death believed she was in imminent danger necessitating the use of force

in self-defense.” Id.

       {¶ 34} The rationale underlying the Sallie holding applies here. Considering Gray’s

account of the murder, including his testimony that Mooty physically attacked him, expert

testimony on the effects of his childhood abuse was unnecessary to show an honest belief

in the imminent danger of death or great bodily harm. The real issue here was not whether

Gray suffered from a psychological malady, but whether his version of the facts was

credible. If the jury believed Gray’s account of the murder, it could have determined that

he reasonably believed that he was in imminent danger of death or great bodily harm and
                                                                                         -18-


accordingly acted in self-defense—regardless of whether he was abused as a child. Thus

the trial court could reasonably have concluded that Dr. Melton’s testimony on the effects

of Gray’s childhood abuse was simply not relevant here.

       {¶ 35} “A trial court’s ruling on evidentiary issues, including the admissibility of

expert opinions, will not be reversed on appeal absent an abuse of discretion and proof

of material prejudice.” (Citations omitted.) State v. Belton, Ohio Sup. Ct. Slip Opinion No.

2016-Ohio-1581, ¶ 116. In this case, the trial court did not abuse its discretion by

excluding Dr. Melton’s testimony.

       {¶ 36} The first assignment of error is overruled.



                                          III. Conclusion

       {¶ 37} We have overruled both of the assignments of error presented. Therefore

the trial court’s judgment is affirmed.

                                      .............




FAIN, J., and WELBAUM, J., concur.


Copies mailed to:

Mathias H. Heck
Andrew T. French
Marshall G. Lachman
Hon. Steven K. Dankof