State v. Rice , 2022 Ohio 4176 ( 2022 )

[Cite as State v. Rice, 2022-Ohio-4176.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
KYLE RICE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0085
Motion to Certify a Conflict
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Overruled.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio
44503, for Plaintiff-Appellee and
Atty. Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503, for
Defendant-Appellant.
Dated: November 9, 2022
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PER CURIAM.
{¶1} Appellant, Kyle Rice has filed a motion to certify a conflict to the Ohio
Supreme Court pursuant to App.R. 25.
{¶2} App.R. 25(A) reads, in pertinent part:
A motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio
Constitution shall be made in writing no later than ten days after the clerk
has both mailed to the parties the judgment or order of the court that creates
a conflict with a judgment or order of another court of appeals and made
note on the docket of the mailing, as required by App. R. 30(A). * * * A
motion under this rule shall specify the issue proposed for certification and
shall cite the judgment or judgments alleged to be in conflict with the
judgment of the court in which the motion is filed.
{¶3} Article IV, Section 3(B)(4) reads:
Whenever the judges of a court of appeals find that a judgment upon which
they have agreed is in conflict with a judgment pronounced upon the same
question by any other court of appeals of the state, the judges shall certify
the record of the case to the Supreme Court for review and final
determination.
{¶4} Hence, the following conditions must be met before and during certification
pursuant to Section 3(B)(4), Article IV of the Ohio Constitution:
First, the certifying court must find that its judgment is in conflict with the
judgment of a court of appeals of another district and the asserted conflict
must be “upon the same question.” Second, the alleged conflict must be on
a rule of law – not facts. Third, the journal entry or opinion of the certifying
court must clearly set forth that rule of law which the certifying court
contends is in conflict with the judgment on the same question by other
district courts of appeals. (Emphasis deleted.)
Case No. 21 MA 0085
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Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613 N.E.2d 1032, (1993), paragraph
one of the syllabus. In addition, the issue proposed for certification must be dispositive
of the case. State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759, 963 N.E.2d
811, ¶ 2.
{¶5} “Factual distinctions between cases do not serve as a basis for conflict
certification.” Id. at 599. In Whitelock, the Ohio Supreme Court dismissed the appeal on
the grounds that the conflict was improperly certified and urged appellate courts to certify
“only those cases where there is a true and actual conflict on a rule of law.” Id.
{¶6} Appellant asserts that our judgment affirming the trial court’s decision to
exclude specific instances of his victim’s prior conduct in order to establish his state of
mind when he shot her, see State v. Rice, 7th Dist. Mahoning No. 21 MA 0085, 2022-
Ohio-3291, ¶ 70, conflicts with the judgment of several other Ohio intermediate appellate
courts, that is, State v. Smith, 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 18, quoting
State v. Moore, 3d Dist. Allen Nos. 1-06-89, 1-06-96, 2007-Ohio-3600, ¶ 59; State v.
Cobb, 3rd Dist. Allen No. 1-20-43, 2021-Ohio-3877, ¶ 71, appeal allowed sub nom. State
v. Cobb, 166 Ohio St.3d 1413, 2022-Ohio-554, 181 N.E.3d 1207, ¶ 71; State v. Herron,
2d Dist. Montgomery No. 28146, 2019-Ohio-3292, ¶ 28; State v. Ryan, 2018-Ohio-2600,
115 N.E.3d 659, ¶ 93 (11th Dist.); State v. Gott, 6th Dist. Lucas No. L-11-1070, 2013-
Ohio-4624, ¶ 35. Appellant writes, “[t]his Court’s opinion in Paragraph 70 appears to hold
open the possibility that these districts’ opinions take a different view to the issue of
whether a ‘. . . defendant may testify about specific instances of the victim’s prior conduct
known to the defendant in order to establish the defendant’s state of mind.’” (9/23/22
Mot. To Certify, p. 1.)
{¶7} Contrary to Appellant’s argument, we adopted the rule of law articulated in
the cited cases that Appellant was permitted to offer specific instances of his victim’s prior
conduct in order to establish his state of mind when he fatally shot her. We affirmed the
trial court’s decision to exclude Appellant’s testimony regarding two previous incidents
involving the victim because we found no abuse of discretion with respect to the trial
court’s analysis of the facts:
The trial court excluded Appellant's testimony regarding the 2014 and 2016
allegations because there was no evidence that Appellant feared Danekua.
Case No. 21 MA 0085
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The trial court cited Appellant's decision to bring a handgun to Danekua's
residence as further evidence that he did not fear her. Further, the trial court
opined that Appellant and Danekua had obviously “made amends” following
the 2014 and 2016 incidents, as evidenced by the birth of KJ and Appellant's
visit to Danekua's residence that evening. Although not cited by the trial
court, the state also asserted that Appellant declined to pursue charges with
respect to the 2014 police report, which alleged that Danekua cut
Appellant's ear with a knife.
Contrary to Appellant's argument, we find that the trial court did not abuse
its discretion when it excluded any testimony from Appellant regarding the
2014 and 2016 incidents. First, the 2016 incident did not involve a physical
attack. Accordingly, Appellant's testimony regarding the 2016 incident
would not inform his state of mind as it relates to Danekua's propensity to
seriously injure or kill him.
Further, there was insufficient evidence offered by Appellant to conclude
that the 2014 incident, which did involve a physical assault, was relevant.
According to the state, the 2014 police report established that Danekua
slashed Appellant's tires and cut his ear with a knife. However, it is not clear
whether Danekua was in a rage in 2014 and had to be disarmed or she
might have seriously injured or killed Appellant with the knife, or that cutting
his ear was part of a non-frenzied, non-lethal assault. Moreover, the degree
of the injury inflicted by Danekua in 2014 is not in the record.
Even assuming arguendo that the trial court abused its discretion, the
exclusion of Appellant's testimony regarding the 2014 and 2016 incidents
did not cause material prejudice to Appellant based on the remaining
evidence in the record. Appellant's testimony regarding the struggle for the
handgun was wholly inconsistent with the physical evidence offered at trial.
Appellant did not even attempt to reconcile his testimony regarding the
alleged struggle for the handgun with the uncontroverted physical evidence
Case No. 21 MA 0085
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establishing that Danekua sustained gunshot wounds to her head, left
forearm, left hand, left thigh, left hip, trunk, and neck.
Accordingly, we find that the trial court did not abuse its discretion when it
excluded Appellant's testimony regarding the 2014 and 2016 incidents, and
in the alternative, that Appellant suffered no prejudice as a result of the trial
court's decision.
Rice, supra, ¶ 73-77.
{¶8} Insofar as any distinction between our decision and the decisions of the
other Districts cited by Appellant is predicated upon facts rather than the rule of law,
Appellant’s motion to certify conflict is overruled.
JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0085