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M+ P^ON, FOR LRAWIE 10 FILE DELAYED APP^,rv`AL^^. .'f^' APPELLANT RAY ^"``T

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BERNIE QUILTER

LUCAS COUNTY CLERK OF COURTS700 ADAMS ST.TOLEDO, OHIO

43604

STATEMENT OF COSTS

DATE: November 8th, 2013

CASE NAME: State of Ohio vs Ray Gott

CASE #: L-11-1070; CR0201001636

FAXED/MAILED TO: Ray Gott #A647-468

FAx#rAODRESS: 2001 East Central Avenue P.O. Box 80033 Toledo, Ohio 43608

PLEASE RETURN THIS STATEMENT WITH YOUR PAYMENT

MAKE CHECKS PAYABLE TO BERNIE QUILTER, CLERK OF COURTS

SEND MONEY ORDER OR CASHIER CHECK

PERSONAL CHECK $5.00 MINIMUM

POSI`AGE FEE a46

FAX FEE $3.00

COPIES 24__ $.05 EACH $i ,20

EXEMPLIFIED $5.00

CERTIFIED $1.00

TOTAL

DESCRII'TION OF I'I'EMS SENT: Copy of Decision and Judgement-10/18/2013

,.C-Q p.^'T^7 ^ ^ack; ► 3-^°^7^

1err'Jonal 1^/c Withdrawal Dollars: Cents;

^ ° Check ®ut-Slip `? 7--Institutian: Datei

• • t `J ^ ^I ^YY^>',,^` :P ^!' ^. ^ . . ^.^ t .-^ . . . .Name:

^t-^. ^, ^^l\t ^^ ^/3-.i. ^ ! L t^ ^ ;5,r "y^ ^, Cs; 2Address: 4

rr_\

City: State: Zip Co

CiA^.^j Postage q Copies q ID q Misc. q \,gec^h6out CK #%

The inrna "s s\ignature on this withdrawal request verifies that the i ; \rrnativn Iisted " ove has been read to orby the inmate and is correct: In the evezit of an error in the address ' ich reon the return of this package,the inmate shall assume financial responsibility.

fnma Signatur Number:-^^ Block & Celf Number:44 (p

" .^ PPr ed Witnessed:

` t3 .^- ^^^- ;^. ,5h'rp VIA; rate Proce

DRC 1004 (Rev. 3/01) DISTRIBUTIQN: HtTE.- C hier CANARY- Inmate Pink- ACA 4046^...

^^», ^, « ,.. v .+-•^ ^ : ^ ,.:., : , . . . ,.. ... , ... , . ,. ..____^^•.

ea ^kG^^^I'ersonal A/C &thdrawal Daltars: ^ents: ^V ^--Check aut-sliInstitution: Date:

CITName:

011, 3 4Z M Q Q,,- C:i^ s t !^ A 21Address:

Stat ^ . .:`F,'` ^. ode:

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The inmdte's signature on this withdrawal request verifies that t in^aliort listed ab e has been read to orby the inmate and is correct. In the event of an error in the add^ ^s which results-' ' e return of this package,the inmate shall assume financial responsibilit y. ^ -

^d"^ -'""tnmatea6ignature: Number^^q 4 ^ ^^ BlOck 7r wnbtf Ner:

'►^^ 0 iAprovB Witnessed:

17Ship VIA:Date Processed:

DRC 1004 (Rev. 3/01) ,yDISTRIBUTION: HIT er CANARY- Inmate Pink- ACA 4046

^^^ $upruw ^^^^^ ^^ ®1iiOFFICE OF THE CLERK

C3-IIEF JUSTICE

MAUREEN O'CONNOR

65 SoUTH FRONT STREET, COLUMBUS, OH 43215-3431

CLERK OF THE COURT

MARK H. REED

JUSTICES

PAUL E. PFEIFER

TERRENCE O'DONNELL

JUDITH ANN LANZINGER

SHARON L.ICENNEDY

JUDITH L. FRENCH

WILLIAM M. o'I\,TEILL

December 5, 2013

Ray GottA647-468Toledo Correctional InstitutionP. 0. Box 80033Toledo, Ohio 43608

Dear Nlr. Gott:

TELEPHONE 614.387.9530

FACSIMTLE 614.387.9539

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IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio

Appellee

V.

Ray Gott

Appellant

Court of Appeals N:o. L-11-1070

Trial Court No. CR0201001636

DECISION AND JUDGMENT

L7 ►ecided; OCT 18 2013

Julia R. Bates, Lucas County Prosecuting Attorney, andDavid F. Cooper, Assistant Prosecuting Attorney, for appellee.

Timothy W. Longacre, for appellant.

JENSEN, J.

{¶ 1} Following a jury trial, defendant-appellant, Ray Gott, timely appeals his

February 23, 2011 conviction for voluzitary manslaughter with a firearm specification,

violations of R.C. 2903.03(A) and 2941.145. For the reasons that follow, we affirm

Gott's conviction.

NORMALIZED1 QCi' 1 $ 2013

./ 9

1. Factual Background

(¶ 21 Gott's conviction for voluntary manslaughter stems from the shooting death

of Edward Christopher Lee on April 4, 2010.

{¶ 31 On April 3, 2010, Lee celebrated his birthday at a barbecue with friends and

family. After the barbecue, Lee and his wife, Vonetta, went to the Liberty Bar with

Vonetta's brother, Sherlon McKenzie, and McKenzie's fiancde, Leticia Dorsey. Gott's

daughter, Ashley, who had once dated McKenzie, was also at the bar that night with three

of her cousins. There was conflicting testimony about whether Ashley spoke with

McKenzie, Lee, or Vonetta at the Liberty Bar, but the witnesses seemed to agree that

Ashley and Leticia did not interact at that time.

{¶ 4) At this point the witnesses' versions of events diverge. According to the

state's witnesses, when the bar closed, Lee and Vonetta left.separately in one car, and

McKenzie and Leticia in another. They were headed to an after-hours club on Lagrange

Street. Although not part of the group, Ashley and her cousins followed McKenzie and

Leticia. While they were stopped at a stop sign or a stoplight at an intersection, Ashley's

group pulled Leticia from the car and began hitting her with a high-heeled shoe. Leticia

sustained cuts that were bleeding. Lee and Vonetta arrived and Ashley and her cousins

took off. Ashley denies that she or her cousins instigated the.fight at the intersection and

claims.that McKenzie, Leticia, Vonetta, and Lee were all together and that it was they

who assaulted Ashley.

2.

{¶ S} After the incident at the stop sign, Leticia became intent on fighting Ashley

"one-on-one." She went home to change her clothes and clean up, and she assembled a

group that included McKenzie, Lee, Vonetta, Leticia's sisters, Kevia and Kiana Dorsey,

among others. A caravan of several cars headed to the Moody Manor apartments, where

Ashley's sister lived, to seek out Ashley. Ashley wasn't there, so the group left,

{Iff 6} Shortly after leaving, Leticia and her group leamed that Ashley had arrived

at Moody Manor. Leticia's group retumed so the two women could fight. A crowd of

approximately 30 people assembled in the parking lot. Like Leticia, Ashley was there

with a group of people, including Gott. People began fighting in the parking lot, At

some point during the fighting, Gott retrieved a gun and fired multiple shots. One hit

McKenzie's leg and one hit Lee's leg. After being shot, Lee lay on the ground. The state

clairns that while Lee was on the ground, Gott stood over him, said "no one fucks with

my family," and despite pleas by Lee that they were leaving and that Gott should stop

shooting, Gott fired another shot into Lee's chest. Police and ambulance were called and

transported Lee to St. Vincent Hospital where he later died. Gott flecl before the police

arrived and instructed his nephew to throw the gun in the river. Numerous witnesses

identified Gott in a photo array and he ultimately turned himself in.

7} On April 13, 2010, Gott was indicted for Lee's murder, a violation of R.C.

2903.02(B), and for the felonious assault of McKenzie, a violation of R.C. 2903..11, both

carrying firearms specifications under R.C. 2941.145. The case went to trial before a,jury

from February 7 to February.1$, 2011. Gott claimed that Lee was the aggressor and that

3.

, ,

he shot Lee in self-defense but did not intend to kill him: Although Gott conceded during

police questioning that he was the only one with a gun, he presented witnesses at trial

who testified that Lee also had a gun. At the conclusion of the trial, the trial court

instructed the jury on self-defense and, over the state's objection, on the reduced charge

of voluntary manslaughter. The jury returned a guilty verdict o'n the voluntary

manslaughter charge, with a firearms specification. It rendered a verdict of not guilty on

the murder and felonious assault charges.

{¶ 8} Gott now appeals that verdict, assigning the following errors for our review:

I. THE TRIAL COURT COlV1IV1ITTED ER.R.OR. BY EXCLUDING

EXPERT TESTIMONY CENTRAL TO DEFENSE OF SELF-DEFENSE.

II. THE TRIAL COURT IMPROPERLY EXCLUDED AND/OR

LIMITED EVIDENCE OF IMFEACHMENT.

III. THE DECISION OF THE TRIAL COLTR.T WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

II. Legal Standards and Analysis

{T 9} The trial court has broad discretion in the admission of evidence, and unless

it has clearly abused its discretion to defendant's prejudice, an appellate court should not

disturb the trial court's decision. State v. Barnes, 94 Ohio St. 3d 21, 23, 2002-Ohio-68,

759 N.E.2d 1240 (2002). Accordingly, with respect to Gott's first two assignments of

error, our review is limited to determining whether the trial court acted unreasonably,

arbitrarily, or unconscionably in its decisions to admit or exclude evidence. Id.

4.

A. Appellant's First Assignment of Error.

11110) In his first assignment of error, Gott claims that the trial court erred in

excluding expert testimony from Dr. David Connell, a clinical psychologist retained by

Gott. Dr. Connell authored a report and was expected to testify that Gott reasonably and

honestly believed that his life and his family's lives were in danger and that he acted in

self-defense the night he shot Lee and McKenzie. Anticipating that Gott would seek to

admit this testimony, the state filed a motion in limine to exclude it.

{¶ 1 i} The trial court held what it referred to as a "hybrid" Daubert hearing on

November 3, 2010. Dr. Connell was examined by both parties and by the court

concerning the opinions he would be offering and the foundation for those opinions. He

described that he had been hired to determine if Gott had acted in self-defense in the

shootings of Lee and McKenzie. As part of this process, he took a history from Gott

during three interview sessions spanning 7.5 hours, and reviewed a number of records

including evaluations, progress notes, assessments, summaries, and medication flow

sheets from United Behavioral Health Group, Inc., the Toledo Police Department's

supplemental crime report, and the forensic toxicology report for Lee. He also

administered to Gott the Slosson Intelligence Test and the Minnesota Multiphasic

Personality Inventory- 2-Restructured Form. Based on his evaluation of Gott, the records

he reviewed, and Gott's test results, he concluded that Gott's IQ was in the low average

range. He also concluded that Gott suffered from bipolar disorder, which was effectively

managed by medication. Nevertheless, Dr. Connell opined to a reasonable degree of

5.

:1

psychological certainty that Gott had "an honest belief that he was in immediate danger

of death or great bodily harm, and that his only reasonable means of escape from such

danger was by the use of deadly force."

{¶ 1-2} After hearing Dr. Connell's testimony, the trial court concluded that Dr.

Connell had not described a specific theory or technique that he had used, that there was

no "peer review methodology for this type of expert opinion," that there was no "strong

scientific method" relied upon, that whether Gott acted in self-defense was a question for

the jury, and that Dr. Connell did not have the "ability to testify as an expert and render

an opinion with regard to the standards that are required under Daubert." The defense

was precluded from offering his opinions,

{lj 13} At trial, the court allowed additional argument on this issue. It entertained

the possibility of allowing Dr. Connell to testify as to all aspects of his evaluation of Gott

without providing his ultimate conclusion that Gott believed that he was in danger or that

he acted in self-defense. Ultimately, Gott's treating psychiatrist, Tufal Khan, M,D.,

instead testified and provided information about Gott's mental health diagnoses and the

trial court did not permit Dr. Connell to testify. Gott claims that this was error. He

claims that Dr. Connell's testimony was central to his self-defense claim,

{¶ 14} Under Ohio law, self-defense is an affirmative defense which a defendant

must establish. by a preponderance of the evidence. R.C. 2901.05(A); State v. Martin, 21

Ohio St,3d 91, 94, 488 N.E.2d 166 (1986). To prove self-defense, a defendant must

prove (1) that he was not at fault in creating the situation giving rise to the use of deadly

6.

force, (2) that he 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, and (3) that he did not violate any duty to

escape to avoid the danger. State v, Cooper, 170 Ohio App. 3d 418, 426, 2007-Ohio-

1186, 867 N.E.2d 493, ¶ 18 (4th Dist.), citing State v. Williford, 49 Ohio St.3d 247, 249,

551 N.E.2d 1279 (1990). Gott intended for Dr. Connell to provide testimony establishing

the second element.

{¶ 15} To determine whether the trial court properly excluded Dr. Connell's

testimony, we must review whether his testimony satisfied the requirements of Evid.R.

702. That rule permits a witness to testify as an expert where:

(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony;

(C) The witness' testimony is based on reliable scientific, technical,

or other specialized information. To the extent that the testimony reports

the result of a procedure, test, or experiment, the testimony is reliable only

if all of the following apply:

7.

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

(2) The design of the procedure, test,'or experiment reliably

implements the theory;

(3) The particular proceduxe, test, or experiment was conducted in a

way that will yield an accurate result,

{¶ 16} More succinctly stated, for expert testimony to be admissible, Evid.R,

702(A). requires that the subject of the testimony be beyond the knowledge possessed by

lay persons, (B) requires that the witness be qualified because of experience, education,

and training, and (C) requires that the witness' testimony be reliable. Gott argues that the

trial court erred by failing to address the first and second prongs of Evid.R. 702 and that

it applied an incorrect legal standard in considering the third prong because it required

Dr. Connell to establish that his methodologies were "generally accepted."

{$ 17} Expert testimony is inadmissible under Evid.R. 702(A) if it concerns

matters "within the ken of the jury." State v. Johnson, 10th Dist. Franklin No. 02AP-373,

2002-Ohio-6957, ¶ 37, quoting State v, Sallie, 81 Ohio St.3d 673, 676, 693 N.E.2d 267

(1998). See also State v. Coulter, 75 Ohio App.3d 219, 228, 598 N.E.2d 1324 (12th

Dist. 1992) ("When an issue of fact is within the experience, knowledge, and

8.

comprehension of the trier of fact, expert opinion testimony on that issue is unnecessary

and inadmissible since it would not assist the trier of fact in understanding the evidence

or determining a fact in issue,")

{¶ 18} The second element of a self-defense claim requires defendant to establish

that he had a bona fide belief that he was in imminent danger of death or great bodily

harm, and that the only means of escape from the danger was the use of force. Coulter at

227-28. This is a subjective test and the defendant's state of mind is cruciat. Id. at 228.

It is usually best established by the testimony of the defendant. State v. Herdman, 5th

Dist. Delaware No. 99CAA12057, 2000 WL 1133244 (Aug. 8, 2000), citing State vs.

Seliskar, 35 Ohio St.2d 95, 96, 298 N.E.2d 582 (1973).

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

claim. Courts typically follow the general rule that expert testimony from a psychologist

or psychiatrist is inadmissible for purposes unrelated to the insanity defense. See State v.

Wilcox, 70 Ohio St.2d 182, 199, 436 N.E.2d 523 (1982). Narrow exceptions exist in

cases involving battered woman or battered child syndromes. See State v. Nemeth, 82

Ohio St.3d 202, 208-209, 694 N,E.2d 1332 (1998); Coulter at 229. In those types of

cases, expert testimony often assists the jury by dispelling popular misconceptions they _

mayhave about battered women and children. Coulter at 229; Nemeth at 207. In the

absence of one of those exceptions, however, expert psychological testimony is not

admissible.

9.

{¶ 20} Courts have articulated the reason for disallowing testimony from

psychologists and psychiatrists in self-defense claims. For instance, in Johnson, l Oth:

Dist. Franklin No. 02AP-373, 2002-Ohio-6957, ^, 38, the Tenth District explained:

In the context of a claim of justification based on self-defense, and

whether a defendant acted reasonably under the circumstances, courts have

held that "this issue is generally not a proper subject for expert testimony

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. Salazar (1995), 182 Ariz. 604, 898 P.2d 982, 988, quoting Wells v,

Smith (D.Md.1991), 778 F.Supp. 7, 8. Accordingly, "[b]ecause jurors are

capable of determining whether the use of force in self-defense is

reasonable, expert testimony bearing on that issue is generally

inadmissible." Salazar, supra, at 988.

{¶ 21) Other courts haNre reached the same conclusion. See, e.g., State v. Taylor,

8th Dist. Cuyahoga No, 65711, 1995 WL 663267 (Nov. 9, 1995) aff'd, 78 Ohio St. 3d 15,

676 N.E.2d 82 (1997) (finding that it was not ineffective assistance of counsel to fail to

raise defendant's paranoid personality disorder because psychiatric testimony is

inadmissible for purposes unrelated to the insanity defense); State v. Taylor, 2d Dist.

Montgomery No. 15119, 1996 WL 41709$ (July 26, 1996) (concluding that opinions

about the effect of defendant's psychological makeup on her perception that she was in

10,

fear of great harm or death would invade the province of jury and were properly

excluded); State v. Wright, 8th Dist. Cuyahoga No. 43869, 1982 WL 9365 (May 20,

1982) (holding that doctor's testimony about defendant's mentality were irxadmissible

and that jury could draw its own conclusions as to whether defendant had culpable mental

state).

{¶ 22} We, too, conclude that it was within the province of the jury to evaluate

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. Evid.R. 702(A) was not satisfied, thus the

trial court properly excluded Dr. Connell's testimony.

ۦ 23) Gott's first assignment of error is not well-taken.

B. Appellant's Second Assignment of Error.

{^ 241 In his second assignment of error, Gott argues that the trial court

improperly excluded evidence of Lee's character. He claims that to establish that he

feared or had reason to fear Lee, it was essential that he be permitted to provide evidence

of Lee's character and his propensity for violence. To do this, Gott sought to question

Lee's widow, Vonetta, about domestic violence reports that she made in which she told

police that Lee had assaulted her and threatened her with a gun.

{¶ 25} During Vonetta's cross-examination, defense counsel asked her about

Lee's reputation in the community for violence. She first responded that "jt]hey don't let

anybody get over on him or his family." Counsel asked the question again and Vonetta

11.

maintained that she did not know whether her husband had a reputation in the community

for violence. She acknowledged that he had been violent toward her "two or three times"

and that she had filed domestic violence reports with the Toledo Police Department. At

that point the state objected and the parties conferred with the court. They discussed. that

counsel intended to use the police reports to establish that Vonetta knew Lee to carry a

gun. The court overruled the state's objection and allowed defense counsel to ask

Vonetta if her husband was known to carry a weapon. Vonetta responded "not that I

ktiow of." Counsel began to impeach her with a domestic violence report where Vonetta

alleged that Lee threatened her with a gun. The court released the jury and the parties

engaged in argument about the extent to which Gott could use the various domestic

violence reports in cross-examining Vonetta.

{¶ 26} The state argued that Gott was stuck with the answer given by Vonetta that

she did not know Lee to carry a weapon, even though it conflicted with the information

contained in the police report. The state maintained that Gott was not permitted to

inquire about specific instances of Lee's conduct unless he could establish that he knew

of them before he shot Lee. Gott argued that he could use the police report to impeach

Vonetta and for the purpose of showing that Lee carried a weapon and had a history of

violence, therefore, justifying Gott's purported fear of Lee.

{If 27} Ultimately the court ruled that Gott could impeach Vonetta with the police

report under Evid.R. 607 because it conflicted with her testimony at trial that she did not

know Lee to carry a weapon. The court also ruled that the evidence was admissible

12.

under Evid.R, 405(B) because it went to the second element of Gott's self-defense claim-

that he feared the victim and had an honest belief that he was in immediate danger of

death or great bodily harm.

{¶ 281 When Vonetta's testimony continued, defense counsel asked her about a

March 11, 2009 police report where she stated that Lee approached her brandishing a

handgun. Vonetta claimed that the statement in the report concerning the gun was not

true andthat she made up the statement because she knew that the police would respond

more quickly if they believed a gun was involved. She conceded that the remainder of

the information in that report concerning the assault was true. Vonetta also

acknowledged that there had been an incident in 2002 where Lee threatened her with a

gun upon seeing her in a hotel parking lot with another man. She described the gun as

black but did not know what kind it was or where on his person he was carrying it. At

that time, the court did not permit further questioning about incidents forming the basis

for other police reports she had filed.

{¶ 29} These arguments resurfaced when Gott called Vonetta in his case-in-chie£

Counsel questioned Vonetta about other domestic disturbances between her and Lee,

including a 2002 incident where she was admitted to the hospital after Lee hit her and

caused several other injuries "all over" her body. He also questioned her about a

December 26, 2004 police report she made after he pulled her down the stairs. He asked

if Lee placed a gun to her head in a January 2004 incident and Vonetta claimed

13.

that she did not recall. After Vonetta answered questions by the state during which she

claimed that Lee had not been violent with her in a"Iorcg time," defense counsel asked if

she believed February 22, 2010 to have been a long time ago, an indication that she had

reported domestic violeiice by Lee just two zimonths before Lee's shooting death.

11301 Gott now argues that the trial court erred because despite ruling that he

could question Vonetta about the police 'reports, it limited the testimony and did not

permit him to inquire abourthe specific information contained within the police reports.

I¶ 31) 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). Evid, R. 404(A) describes thtee exceptions to this

rule. One of those exceptions is contained in (A)(2), which states:

Character of victim. Evidence of a pertinent trait of character of the

victim of the crime offered by an accused, or by the prosecution to rebut the

same, or evidence of a character trait of peacefulness of the victim offered

by the prosecution in a homicide case to rebut evidence that the victim was

the frst aggressor is admissible ***.

{¶ 32) Where, character evidence is p.ermitted, Evid.R. 405 describes the methods

by which a party may prove character:

(A) Reputation or opinion. In all cases in which evidence of

character or a trait of character of a person is admissible, proof may be

14.

made by testimony as to reputation or by testimony in the form of an

opinion. On cross-examination, inquiry is allowable into relevant specific

instances of conduct.

(B) Specific instances of conduct. In cases in which character or a

trait of character of a person is an essential element of a charge, claim, or

defense, proof may also be made of specific instances of his conduct.

{¶ 33} Numerous courts have examined the relationship between Evid.R.

404(A)(2) and 405 in the context of a self-defense claim. They describe:

Under Evid.R. 404, evidence of a trait of an individual's character is

not. generally admissible for the purpose of proving that he acted in

conformity with it. However, Evid.R. 404(A)(2) creates an exception for

evidence conceming the character of a victim of the crime if offered by an

accused, or by the prosecution to rebut evidence offered by the defense,

While Evid.R. 404 provides that such evidence is admissible, Evid.R. 405

limits the permissible methods of proving character. Character may

generally be proven by means of reputation and opinion testimony.

However, only where character constitutes an element of a charge, claim or

defense, may it be proven by means of specific acts of conduct. See Evid.R.

405(B). Thus, whether evidence concerning the victim is admissible to

prove self-defense depends upon the type of evidence being offered.

15,

State v. Busby, 1Qth Dist. Franklin No. 98AP-1050, 1999 WL 710353, * 5(Sept. 14,

1999).

{¶ 34} Character evidence that defendants seek to offer to support a self-defense

claim typically falls into two categories: (1) testimony concerning the victim offered to

demonstrate the defendant's state of mind at the time of the incident, and (2) testimony

about the victim's character offered to prove that the victim was 'more likely the

aggressor. Id.

{¶ 35} The Ohio Supreme Court has held that "Evid.R. 405(B) precludes a

defendant from introducing specific instances of the victim's conduct to prove that the

victim was the initial aggressor." Barnes, 94 Ohio St.3d at 24, 759 N,E.2d 1240. But a

defendant may testify about specific instances of the victim's prior conduct which were

known to defendant in order to establish defendant's state of mind. State v. Carls,an, 31

Ohio App.3d 72, 73, 508 N.E.2d 999 (8th Dist.1986), paragraph one of the syllabus.

"These events are admissible in evidence, not because they establish something about tlze

victim's character, but because they tend to show why the defendant believed the victim

would kill or severely injure him," Id. The critical issue is what the defendant knew

about the alleged victim at the time of the confrontation. Busby at *5.

{¶ 36} Here, Gott's primary purpose for offering evidence of specific acts of

violence was to establish that he feared Lee. What's missing, however, is any evidence

that Gott knew of these specific acts of violence. Gott never testified. He never

introduced any evidence to establish that he knew of Lee's past violent acts. And despite

16.

Gott's claims to the contrary, "[a]zt alleged victim's purported violent nature is not an

essential element of self-defense and therefore, witnesses other than the defendant have

no admissible basis for testifying to specific instances of violent conduct." State v,

Williamson, 4th Dist. Ross No. 95CA2155, 1996 WL 530008 *4 (Sept. 12, 1996).

Accordingly, Gott could not properly offer the evidence.

J¶ 37) Having said this, despite the evidence of specific acts being improper, the

trial court actually permitted Gott to question Vonetta about specific instances of violence

perpetrated by Lee, despite the fact that Gott did not demonstrate that he had knowledge

of those incidents before shooting Lee. Much information about Lee's character was

made known to the jury.

{^ 38) Finally, to the extent that Gott claims it was necessary to introduce

evidence of specific acts to demonstrate that Vonetta was untruthful when she said that

she did not know Lee to carry a weapon and did not know whether he had a reputation for

violence, the trial court gave him considerable leeway to do just that. In fact, the trial

court allowed Lee to go well beyond what was necessary to impeach Vonetta's trial

testimony.

J¶ 391 The court in State v. Powell, 8th Dist. N'o. 79928, 2002-Ohio-2618,T 12,

24, considered a very similar issue. There, the defendant's fiancd testified that she did

not know him to carry a gun. The state questioned her about a domestic violence report

she had filed in which she told police that defendant had assaulted her and pointed a gun

at her. The witness testified that the gun was actually a spatula and denied other details

17.

contained in the police report. The state called as a rebuttal witness the police officer

who responded to the domestic violence report who testified that the report accurately

reflected what the witness had told him at the time of the incident. Defendant claimed

that this was error. The Eighth District held that "the state was permitted under Evid.R.

607 to question the credibility of [the witness] and her statement that she had never

observed the appellant with a gun." The court noted, however, that the details contained

in the report regarding the physical assault of the witness should not have been permitted.

Here, as in Powell, the trial court perrnitted Gott to present evidence beyond what was

permissible to impeach Vonetta.

(140) Gott's second assignment of error is not well-taken.

C. Appellant's Third Assignment of Error.

{¶ 41} In his final assignment of error, Gott argues that "the trial court's decision

was against the manifest weight of the evidence." He claims that the state did not prove

all the elements of voluntary manslaughter because there was no evidence that Gott acted

in a fit of passion; that an independent witness who testif ed-Jessica Buckner-failed to

identify Gott as the sole shooter; and that Buckner's description of the shooter did not

match Gott's physical appearance. As the state properly points out, this assignment

presents a challenge to both the weight of the evidence and the sufficiency of the

evidence. Under either standard, Gott's argument fails.

{¶ 421 "Sufficiency of the evidence" is a legal standard which is applied to

determine whether the evidence is legally sufficient to support a,jury verdict as a matter

18.

of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (I997), superseded

by constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684

N.E.2d 668 (1997). It requires the court to determine whether the state has presented

enough evidence on each element of the crime to allow the case to go to the jury. Id.

"Weight of the evidence," on the other hand, contests the believability of the evidence

before the jury. State v. Mick, 6th Dist. Lucas No. L-1 1-1034, 2012-Ohio-3296, "The

weight of the evidence concerns the inclination of the greater amount of credible

evidence offered to support one side of the issue rather than the other." State v. Baatin,

10th Dist. Franklin No. 1 IAP-286, 201 I-®hio-6294, ¶ 9, citing Thompkins at 387.

11143) We first address Gott's argument that the state failed to present evidence of

each element of the crime of voluntary manslaughter. R.C. 2903.03(A) provides:

No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person

into using deadly force, shall knowingly cause the death of another ***.

Gott claims that the state failed to provide evidence of sudden passion or a fit of rage.

But Gott's argument on appeal is directly contrary to what he argued to the trial court

when he requested a jury instruction on voluntary manslaughter.

{¶ 44) At defense counsel's request, and over the state's objection, the court

instructed the jury on voluntary manslaughter, giving jurors the option to convict Gott of

a lesser offense than the murder charge for which he was indicted. The following

19.

exchange took place between defense counsel and the court:

Mr. McKinney: The court asked whether I want to have a

voluntary manslaughter and self-defense per OJI and i indicated that I did.

So it was requested some time ago[.J

The court: I-las the request changed at all over the last seven

days?

Mr. McKinney: It has not, Your Honor,

**^

Mr. McKinney: Your Honor, there is ample evidence which if

believed by a jury would support the voluntary manslaughter claim.

The essential element is one of the sufficient provocation and

secondly whether there is a sudden passion.

I would argue that this whole event transpired within about three

minutes, that there was clearly an armada, as I call it, of vehicles coming to

this man's daughter's house. There was a fight involving some 30 people,

He's testified that he was afraid of Edward Lee. There is ample evidence

that Edward Lee was a scary guy. He testified or said on the tape Edward

Lee knocked him down. [Gott's niece] testified he was slammed. There is

certainly ample evidence both of self-defense and of provocation of the

kind that would support, if believed by a jury, a voluntary manslaughter

claim.

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Gott now argues that the evidence at trial did not indicate that Gott reacted in a sudden fit

or passion.

{¶ 45) The trial court articulated its reasons for allowing the jury to be instructed

on the lesser charge of voluntary manslaughter: the argument between the families

became very aggressive and very violent very quickly and Gott was not initially involved

in the argument but was suddenly "thrown into it" after being called by a younger family

member. Regardless of whether or not the court correctly concluded that Gcitt's conduct

rose to the level of "sudden passion" or "a, sudden fit of rage" brought on by "serious

provocation," we agree with the state that Gott invited any purported error by requesting

an instruction on this charge. State ex rel. Beaver v. Konteh, 83 Ohio St.3d 519, 520-21,

'700 NE.2d 1256 (1998) (holding that defendant charged with murder but convicted of

felonious assault invited error by requesting felonious assault instruction). "Under the

invited-error doctrine, a party will not be permitted to take advantage of an error that he

himself invited or induced the trial court to make." Id., citing State ex rel. The V Cos. v.

Marshall, 81 Ohio St.3d 467, 471, 692 N.E.2d 198 (1998). See also State v. Eldridge,

12th Dist.l3rown No. CA2002-10-021, 2003-Ohio-7002, ¶ 25, f.n.3 (explaining that

under the invited-error doctrine, appellant may not claim trial court erred in granting his

request for a jury instruction).

111461 Finally, turning to Gott's argument that the jury's verdict was against the

manifest weight of evidence, we again disagree. He bases this contention on the

testimony of two witnesses who testified that Lee had a gun, and on the varying

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descriptions of the shooter's physical appearance. We find, however, that the jury's

verdict was supported by competent, credible evidence.

{¶ 47) Cierra Richardson, Gott's then 13-year-old niece, testified that she saw Lee

with a gun during the altercation at Moody Manor. However, she conceded on cross-

examination that she did not report this to police when they interviewed her and that she

saw Gott shoot Lee. Laqresha Hadden, Gott's niece, also testified that she saw Lee with

a handgun at the Liberty Bar.. Again, she did not report this to police and she did not

contend that she saw Lee with a gun at Moody Manor. The jury could reasonably have

rejected Richardson's and Hadden's testimony as not credible. See State v, Fell, 6th Dist.

Lucas No. L-10-11 62, 2012-Ohio-616,114 ("The jury is free to accept or reject

evidence, to note ambiguities and inconsistencies in testimony-whether between several

witnesses or in the conflicting statements of a single witness-and to resolve or discount

them accordingly.") In any event, in contrast to these witnesses' testimony; other

witnesses who testified denied that Lee had a gun, no one interviewed by the police

claimed that Lee had a gun, and the police did not find a gun at the scene. Numerous

witnesses identified Gott as the shooter. And more importantly, Gott himself admitted

during police questioning that he shot Lee,

{¶ 481 As for the shooter's physical description, Jessica Buckner, who witnessed

the altercation from a bedroom window, testified that the shooter was a large man

wearing a white hooded sweatshirt. The defense disputes that Gott was a"large'° man

and McKenzie testified at trial that the shooter's sweatshirt was blue. This presented a

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mere conflict to be resolved by the jury. The jurors observed the witnesses' testimony

and viewed the physical evidence. It was within the jury's province to make credibility

determinations. And again, the numerous witnesses who testified identified Gott as the

shooter and Gott himself admitted to police that he shot Lee. Having reviewed the

testimony and evidence, regardless of how Buckner described the color of the sweatshirt

or Gott's stature, there was substantial, credible evidence upon which the jury could fmd

that Gott shot Lee. The jury's verdict was not against the manifest weight of the

evidence.

{¶ 49} Gott's third assignment of error is not well-taken.

III. Conctusion

{¶ 50} We find Gott's three assignments of error not well-taken. The trial court

properly excluded psychological testimony in support of Gott's self-defense claim; Gott

was permitted much leeway in eliciting testimony from Lee's widow as to other bad acts

Lee had committed; any error in instructing the jury on the charge of voluntary

manslaughter was invited; and the jury's verdict was supported by competent, credible

evidence. The judgment of the Lucas County Court of Common Pleas and Gott's

February 23, 2011 conviction are affirmed. The costs of this appeal are assessed to

appellant pursuant to App.R. 24.

Judgment affirmed.

23.

State v. CottC.A. No. L-11-1070

A certified copy of this entry shall constitute the mandate pursuant to App,R.. 27. Seealso 6th Dist.Loc.App.R. 4.

Mark L. Piet. ,rkowski,J.

Thomas J. Osowik J.JLTDGE

James D. Jensen , J.CONCUR.

This decision is subject to further edit^"ng by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:httpt//www.sconet.state,oh.us/rod/newpdf/9source=.6.

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