[Cite as State v. Moreland, 2024-Ohio-22.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29724 : v. : Trial Court Case No. 2021 CR 03009 : TASK MORELAND : (Criminal Appeal from Common Pleas : Court) Appellant : :
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OPINION
Rendered on January 5, 2024
ADAM J. ARNOLD, Attorney for Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
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TUCKER, J.
{¶ 1} Task Moreland appeals from his conviction on one count of murder with a
three-year firearm specification.1
1 A jury found Moreland guilty on two counts of murder and two counts of felonious assault, each with a firearm specification. At sentencing, the trial court merged all counts and specifications into a single count of murder with an accompanying firearm specification. -2-
{¶ 2} Moreland contends the trial court erred in designating the State’s firearms
witness as an expert where she lacked sufficient experience and her accreditation no
longer existed. He challenges the legal sufficiency and manifest weight of the State’s
evidence, and he contests a ruling precluding evidence of the victim’s prior violent
tendencies. Finally, he asserts that severe juror misconduct requires a new trial.
{¶ 3} We conclude that the trial court did not abuse its discretion in designating the
State’s firearms witness as an expert. The jury’s verdicts were supported by legally
sufficient evidence and were not against the weight of the evidence. The trial court also
did not abuse its discretion in precluding evidence of the victim’s prior violent tendencies,
and Moreland’s juror-misconduct claim fails because it depends on evidence outside the
record. Accordingly, the trial court’s judgment will be affirmed.
I. Factual and Procedural Background
{¶ 4} On April 14, 2019, Moreland was with his wife, Tiffany, in their apartment.
According to Moreland, they began arguing about her intent to leave and spend time with
another man, Kraig Rakestraw, who was the father of two of her children. Moreland
claimed that Tiffany had threatened him with a loaded handgun during the argument. He
attempted to disarm her, and she accidentally shot herself in the chest while struggling
over the weapon. Tiffany could be heard breathing in the background when Moreland
called 911 and reported the shooting. She was pronounced dead when police and
medical personnel arrived.
{¶ 5} An investigation followed Tiffany’s death. The coroner’s office ruled that the
cause of death was a gunshot wound to the chest, but the manner of death was -3-
“undetermined.” Based on evidence gathered during the investigation, however, a grand
jury indicted Moreland in November 2021 on two counts of murder and two counts of
felonious assault with firearm specifications.
{¶ 6} Prior to trial, Moreland filed a motion in limine to obtain a ruling on the
admissibility of evidence concerning prior violent acts by Tiffany. Among other things, the
alleged acts involved her shooting at him and striking a vehicle, attempting to hit him with
a car, threatening to shoot him, and sending him threatening and harassing messages.
Moreland sought to use this “character evidence of Tiffany’s past violent behavior toward
him * * * to show she was likely the person who was the aggressor and gun handler.” The
trial court conditionally overruled the motion, finding the evidence inadmissible unless
Moreland argued self-defense.
{¶ 7} The first witness at Moreland’s July 2022 jury trial was forensic pathologist
Susan Brown from the coroner’s office. Brown described the fatal gunshot wound as
being from Tiffany’s “front to back, right to left, and downward.” As for the manner of death
being undetermined, Brown noted the absence of markings on Tiffany’s skin around the
entrance wound—such as a muzzle imprint, stippling, soot, or gunpowder—that might
have helped her determine how close the gun had been to Tiffany when it discharged.
Brown acknowledged that a clothing barrier could explain the absence of any markings.
She was unable to determine who had fired the weapon.
{¶ 8} The next two witnesses were police officers Keri Lightle and Taylor
Gianangeli, who responded to the scene of the shooting. Upon entering the apartment,
they saw Tiffany lying on her back on the living-room floor. She was unresponsive. -4-
Moreland was on the ground holding her. Both officers described him as being very
emotional. Gianangeli escorted Moreland outside while Lightle remained inside with
police officer Dan Hall, who was putting on gloves.
{¶ 9} Evidence technician Ronald Christophers also testified as a prosecution
witness. He observed the victim lying on the floor wearing a black bra and pants. He also
saw a semi-automatic handgun in a chair. Christophers testified that one of the officers
had moved the weapon, which originally had been on the ground to the right of Tiffany.
Christophers found a nine-millimeter shell casing on the living-room floor near a closet on
the side of a couch. The shell casing was located approximately 14.5 feet away from
Tiffany’s body. Christophers recovered a nine-millimeter bullet from the kitchen floor that
had gone through the living-room wall. The bullet hole was 2.33 feet from the ground in
the living room and 2.2 feet from the ground on the other side of the wall in the kitchen.
Finally, Christophers collected a black shirt that that was on a chair. The shirt did not have
any bullet holes in it. On cross-examination, he testified that he could not say where
Moreland had been standing at the time of the shooting.
{¶ 10} The next witness was forensic scientist Mary Barger. She testified about
conducting DNA testing of the handgun involved in Tiffany’s death. Although Barger
detected DNA on the barrel of the weapon, the quantity was insufficient to make a
comparison with anyone. She was able to develop a profile, however, from DNA found
on the handgrip. The profile revealed a DNA mixture coming from more than one person.
Most of the DNA, which Barger described as “a major component,” matched a DNA
standard taken from Tiffany. Barger could not exclude Moreland as a contributor to the -5-
mixed profile. She explained that only “one in every 2,944,000 individuals” could not be
excluded from the profile. Based on her analysis, Barger agreed that either Tiffany or
Moreland could have been holding the handgun.
{¶ 11} Detective David House also testified as a prosecution witness. He arrived
at the scene after Tiffany had been declared dead and paramedics had left. He saw her
body just inside the front door. He noted an apparent gunshot wound on the upper portion
of her right breast. He did not see any evidence of charring, stippling, or soot around the
wound. He also noticed the shell casing on the far side of the room near a closet.
{¶ 12} Detective House participated in an interview of Moreland later that day.
During the interview, Moreland stated that Tiffany had gone outside with two of her
children because their biological father, Kraig Rakestraw, had arrived to take the children
out for the day. Moreland claimed an argument had ensued when Tiffany reentered the
apartment, and she requested her car keys and her gun. After obtaining the gun, Tiffany
went into a bathroom and racked the slide of the semi-automatic weapon. According to
Moreland, she exited the bathroom and charged toward him with the gun in her left hand
and a cell phone in her right hand, threatening to shoot him. The gun discharged when
he tried to take it from her.
{¶ 13} During his interview, Moreland provided differing accounts about whether
Tiffany had retrieved the weapon from a closet herself or whether he had obtained it for
her. He also claimed that the weapon had been stored in a steel-toed boot in the closet,
but investigators never found a steel-toed boot in the apartment. According to House,
Moreland provided inconsistent statements about whether Tiffany took the cell phone with -6-
her into the bathroom, whether she actually was holding the cell phone when she charged
him, and whether she took a black shirt into the bathroom with her. Moreland also
provided inconsistent statements about whether Tiffany was angry when she returned
from outside. According to House, Moreland initially denied Tiffany was angry with
Rakestraw outside. Moreland then stated that she had been angry about something. He
suggested that Tiffany and Rakestraw may have been outside the apartment plotting
against him. At one point during the interview, Moreland stated that he had told Tiffany
he was not going to allow her to leave again with another man. He then claimed to have
told Tiffany that she could spend time with Rakestraw.
{¶ 14} During the interview, Moreland stated that Tiffany had been wearing a black
shirt at the time of the shooting. He claimed to have pulled the shirt down below her breast
after she was shot. Moreland described the shirt as a black shirt with gray writing on the
front. Investigators found the shirt inside the apartment. It was “laid out over a chair where
you could see the design and the writing on front of it.” Moreland later identified the shirt
and confirmed that it was the one he claimed Tiffany had been wearing. However, the
shirt did not have a bullet hole or blood on it.
{¶ 15} With regard to a struggle over the handgun, Moreland claimed he had
grabbed the gun and turned it back toward Tiffany, who shot herself. According to House,
Moreland demonstrated how he had both hands on the gun with one of them over the top
of the slide. House testified that if Moreland’s claim were true the gun either would not
have operated properly, and the spent casing would have gotten caught in the gun, or
Moreland would have sustained an injury to his hand when the slide ejected the casing. -7-
But Moreland did not have an injured hand, and the ejected casing was found across the
room. Based on Moreland’s demonstration of how the shooting occurred, House
estimated that the muzzle would have been about 12 inches from Tiffany’s body. Despite
this close distance, House did not see any stippling, soot, or charring on her body or on
the bra she was wearing. As a result, he sought additional testing of the bra.
{¶ 16} The final witness was Jennifer Owens, a firearms and tool-mark examiner
with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Owens had
13 years of experience with the ATF, and she supervised the firearms and tool-mark unit.
Most of her experience involved examining firearms, bullets, and casings. Owens had
some training and experience in making “muzzle-to-target distance” determinations,
which was the subject of her testimony. She had taken a five-day course on muzzle-to-
target distance determinations as part of a broader year-long training program. The five-
day training involved lectures and at least a dozen “mock case scenarios.” She then
underwent additional training in muzzle-to-target distance determinations at the ATF
laboratory, where she worked on mock cases and underwent an oral proficiency
examination. When Owens began working on Moreland’s case, the ATF laboratory was
accredited in muzzle-to-target distance determinations. Due to the low number of such
cases being submitted to the ATF, the agency subsequently decided not to renew its
accreditation. Moreland’s case was the second time Owens had performed real muzzle-
to-target distance casework, and she had not previously testified as an expert in the field.
{¶ 17} Over defense counsel’s objection to Owens’ qualifications, the trial court
allowed her to testify as an expert. She began by describing muzzle-to-target distance -8-
testing as follows:
Yes, so the muzzle-to-target distance determination or distance
testing is, again, trying to detect a pattern of gunshot residue on a target—
which is, by and large, clothing that we receive—and then recreating that
pattern, if one is developed, in the laboratory, under laboratory conditions,
by test firing at different intervals from distance to the end of the muzzle, to
the end of the barrel, to that target.
Trial Transcript Vol. III at 482.
{¶ 18} Owens performed her testing using the actual handgun and ammunition
taken from Moreland’s apartment. She began by examining the bra Tiffany had been
wearing when she was shot. Owens looked at the bra with her naked eye and using a
stereo microscope. She noticed a hole near the top of the right cup but was unable to
detect any smoke, soot, particulates, or gunpowder on the bra, either with her naked eye
or using low-power magnification.
{¶ 19} The next step was to perform chemical testing. The process, identified by
Owens as a “Griess test,” involved placing a chemically-treated piece of photo paper on
a garment, covering it with filter paper, and then heating the paper with an iron, causing
any gunshot residue to adhere to the paper and become visible. Owens testified that
Griess testing is widely accepted in her field and has “been around for decades.” The idea
is to identify a pattern of residue, which then can be recreated by firing the test weapon
at a control target from various distances, enabling the examiner to determine the
distance from which the weapon had been fired at the garment. In Moreland’s case, -9-
Griess testing of the bra did not detect the presence of any gunshot residue. A second
test reacted positively to the presence of lead residue around the hole in the bra, which
was expected given that a bullet had passed through it.
{¶ 20} In addition to chemically testing the bra, Owens test fired the weapon at a
control target of white cotton twill panels from different distances. When performing this
test, she detected some gunshot residue at a distance up to 30 inches. Discernible
patterns of residue were visible up to 24 inches away from the muzzle. Given that she did
not find any gunshot residue on the bra, however, Owens could not compare any pattern
on the bra to the patterns produced during her test firing. As a result, she could not make
any muzzle-to-target distance determination for the bullet hole in the bra. Owens also
explained that she did not subject the black shirt to Griess testing because there was no
bullet hole indicating that a gun had been fired at it.
{¶ 21} On cross-examination, Owens acknowledged that the presence of blood on
a garment can “mask the gunshot residue,” potentially making it undetectible through
visual observation or chemical testing. With regard to Griess testing, she noted that blood
could cause gunshot residue not to come into contact with the chemical agents. Owens
also acknowledged the presence of blood on the bra. She further agreed that soot, smoke
rings, and gunshot residue typically are black or gray, making them relatively harder to
detect by visual examination on a black bra. She also recognized that the double-layered
nature of the bra material made visual examination more difficult and that the curved
shape of the bra made ironing it harder for Griess testing. Finally, Owens agreed that
gunshot reside potentially could have “fallen off” as the bra was moved and handled after -10-
the shooting.
{¶ 22} With regard to the shell casing found inside the apartment, Owens
acknowledged that casings can end up several feet away from where they are ejected
and that they “absolutely” can bounce off of hard objects like walls. At one point, Owens
stated: “Yes, I’ve had them bounce off the railing of our water tank before and end up in
the corner of the room just on a normal test firing.”
{¶ 23} Based on the evidence presented, a jury found Moreland guilty on two
counts of murder and two counts of felonious assault, each with a firearm specification.
Following the verdicts, Moreland unsuccessfully moved for acquittal and for a new trial.
The trial court overruled the motions. After merging allied offenses, it imposed an
aggregate sentence of 18 years to life in prison on one count of murder and a firearm
specification. Moreland timely appealed, advancing four assignments of error.
II. Expert Testimony
{¶ 24} In his first assignment of error, Moreland challenges the trial court’s
qualification of Jennifer Owens as an expert on the issue of muzzle-to-target distance
determinations and gunshot-residue analysis. Moreland stresses Owens’ lack of prior
qualification as an expert in muzzle-to-target distance testing and gunshot-residue
examination. He notes too that his case was only the second time she had performed
actual casework on muzzle-to-target distance testing and that the ATF has foregone
accreditation in the field.
{¶ 25} In a second part of his argument, Moreland questions the reliability of the
muzzle-to-target distance testing procedure. He infers that the procedure is not widely -11-
accepted because the AFT discontinued its accreditation as it had few requests for
experts to testify about the process. He also questions whether the design of Owens’
testing reliably implemented the Griess test and whether her test was conducted in a way
that yielded an accurate result.
{¶ 26} Upon review, we note that Moreland’s objection at trial only encompassed
Owens’ qualifications to testify as an expert. He did not challenge the Griess test itself on
the basis that it was unreliable. In any event, we find no merit in either aspect of his
argument.
{¶ 27} The admission of expert testimony is governed by Evid.R. 702, which
provides:
A witness may testify as an expert if all of the following apply:
(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:
(1) The theory upon which the procedure, test, or experiment is -12-
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 procedure, test, or experiment was conducted in a
way that will yield an accurate result.
{¶ 28} Where an objection was made at trial, we review a trial court’s decision to
qualify a witness as an expert for an abuse of discretion. State v. Medford, 2d Dist.
Montgomery No. 28281, 2019-Ohio-4800, ¶ 11. An abuse of discretion occurs when a
trial court’s decision is arbitrary, unreasonable, or unconscionable. State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 29} With regard to Owens’ qualifications to testify as an expert, we see no abuse
of discretion in the trial court’s decision. Her testimony certainly related to matters beyond
the knowledge or experience of lay persons. The crux of Moreland’s challenge below
addressed her degree of knowledge, experience, and training on the subject of her
testimony. In our view, however, she demonstrated sufficient qualifications in these areas
to permit the trial court to allow her to testify as an expert.
{¶ 30} As set forth above, Owens had taken a five-day course on muzzle-to-target
distance determinations as part of a broader training program. Her training involved
lectures and “mock case scenarios.” She received additional training on the subject at the
ATF laboratory, which was accredited in muzzle-to-target distance determinations when
Owens began working on Moreland’s case. The ATF’s subsequent decision to -13-
discontinue its accreditation did not affect Owens’ own qualifications. Moreover, the fact
that the agency performed few muzzle-to-target distance determinations did not establish
that the process for doing so was unreliable or invalid. Although Owens had performed
little real-world casework using Griess testing to discern gunshot residue patterns, that
fact went to the weight of her testimony rather than its admissibility.
{¶ 31} As for the reliability of the Griess testing process itself, Moreland’s failure to
object at trial limits us to plain-error review. But even if Moreland had objected, we would
find no abuse of discretion in the trial court’s qualification of Owens as an expert based
on the reliability of the testing she performed. With regard to Griess testing generally,
Owens stated that the procedure was widely accepted and had been used for decades.
The State’s appellate brief identifies cases from Ohio and elsewhere involving Griess
testing and muzzle-to-target distance determinations, lending support to Owens’
testimony about widespread use of the process.
{¶ 32} We note too that the procedure itself, as described by Owens, does not
seem particularly complex. A firearm is discharged from various distances at a control
target consisting of white cotton twill panels. The purpose is to identify patterns of gunshot
residue. The subject garment also is subjected to examination for gunshot residue. The
garment is examined with the naked eye, with a stereo microscope, and with chemical
testing. If gunshot residue is found on the garment matching one of the patterns
developed from the test shots, the examiner then can approximate the muzzle-to-target
distance from which the garment was shot. In Moreland’s case, however, Owens did not
detect gunshot residue on the bra she tested. Therefore, she was unable to match a -14-
pattern on the bra to any of the patterns she developed when test-firing the handgun. We
see nothing about the foregoing process that would render the admission of Owens’
testimony an abuse of discretion under Evid.R. 702. Accordingly, the first assignment of
error is overruled.
III. Weight and Sufficiency of the Evidence
{¶ 33} In his second assignment of error, Moreland challenges the legal sufficiency
and manifest weight of the evidence to support the jury’s verdicts. He notes that the
primary source of DNA on the firearm belonged to Tiffany and that the DNA expert, Mary
Barger, could not say who had fired the fatal shot. With regard to the lack of gunshot
residue or other evidence of a close-range shooting on the bra, Moreland cites Jennifer
Owens’ recognition that various factors could have masked the presence of gunshot
residue or caused it not to be present, including the shape of the bra, the nature of the
material, the masking effect of blood, touching of the bra by others at the scene, and
packing and shipping the bra. Moreland notes too that Owens conducted muzzle-to-target
distance testing in a laboratory and that she did not know how Tiffany and Moreland were
positioned at the time of the shooting. He also points out that the representative of the
coroner’s office, Susan Brown, ruled the manner of death undetermined because she did
not know the “range of fire” or who had fired the weapon. Finally, Moreland asserts that
his actions and emotional state immediately after the shooting were inconsistent with
having an intent to kill his wife.
{¶ 34} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to -15-
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 35} Our analysis is different when reviewing a manifest-weight argument. When
a conviction is challenged on appeal as being against the weight of the evidence, an
appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “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). A judgment should be
reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 36} With the foregoing standards in mind, we reject Moreland’s legal-sufficiency
and manifest-weight challenges. In essence, the State’s case rested on three things: (1)
statements Moreland made to police after the shooting; (2) the presence of a shell casing
across the room from Tiffany’s body; and (3) the absence of gunshot residue or other
evidence indicative of a struggle over the firearm and a close-range shooting. In our view,
the combination of this evidence was legally sufficient to support the jury’s verdicts, which
also were not against the weight of the evidence. -16-
{¶ 37} With regard to his statements to the police, Moreland gave varying accounts
of what had occurred inside the apartment. Among other things, he provided inconsistent
statements about how Tiffany had obtained the firearm. During the first half of his
interview, he repeatedly stated that he had retrieved the weapon from a living-room closet
and had handed it to her. After he disclosed that Tiffany was upset and was planning to
leave with Rakestraw, detectives asked why he would hand a loaded weapon to an angry
woman. Moreland then changed his story and stated that Tiffany had retrieved the
weapon from the closet herself. He later reverted back to his original statement that he
had handed the weapon to her. He also repeatedly claimed she had been wearing a
distinctive black shirt. Police later found the shirt, which did not have any blood on it or a
bullet hole in it. Finally, Moreland acknowledged telling Tiffany that she was a married
woman, that she previously had left him for seven days, and that he was not going to
allow her to leave again with another man. This statement provided the jury with a motive
for the shooting.
{¶ 38} The discovery of a shell casing across the room also was relevant to
Moreland’s location at the time of the shooting. Although the jury heard evidence that
shell casings can bounce off of hard objects and land feet from where they were ejected,
the fact that the shell casing was found approximately 15 feet from Tiffany’s body on the
far side of a couch supported the State’s theory that Moreland had shot her from a
distance. Tiffany’s body was found a few feet past one end of the couch, and the casing
was found near a closet, where Moreland claimed the gun normally was stored, beyond
the opposite end of the couch. The floor of the apartment was carpeted, so the casing -17-
presumably would have needed to ricochet hard off of one or more walls or pieces of
furniture to land where it did if Tiffany had been shot at close range. In our view, it was
within the province of the jury to give the shell casing’s location some weight and to
conclude instead that Moreland had retrieved the weapon from the closet and that he shot
her from that location as she was preparing to leave with Rakestraw.
{¶ 39} The absence of gunshot residue on Tiffany’s bra also provided support for
the State’s theory. Although none of the State’s witnesses could identify the distance of
the firearm from Tiffany when she was shot, firearms expert Owens test-fired the weapon
and found discernible patterns of gunshot residue up to 24 inches away from the muzzle.
Given that she did not find any gunshot reside on the bra, the State’s theory was that the
muzzle had been farther than that away from Tiffany when she was shot. Although Owens
noted other reasons why gunshot residue might not have been found, the absence of any
residue under microscopic and chemical examination remained a relevant consideration.
{¶ 40} The lack of an injury to Moreland’s hand also supported the State’s theory
of the case. Detective House testified that if Moreland had had two hands around the gun
as he claimed, the weapon either would not have operated properly, and the spent casing
would have jammed in the gun, or Moreland would have sustained an injury to his hand
when the slide ejected the casing. Notably, however, Moreland did not have an injured
hand, and the ejected casing was found across the room. These facts supported an
inference that Moreland was not struggling over the gun when it discharged.
{¶ 41} We note too that Moreland’s emotional state after the shooting and his
efforts to aid his wife were not inconsistent with a purposeful killing. The jury reasonably -18-
could have found that Moreland was upset about Tiffany’s plan to leave with another man,
that he intentionally shot her in the chest out of anger, and that he then regretted what he
had done and attempted to save her life. As for the mixed DNA profile found on the
firearm’s handgrip, Moreland told investigators that he and Tiffany both had fired the
weapon outside on the previous New Year’s Eve. We note too that Moreland could not
be excluded as a contributor to the DNA mixture found on the handgrip.
{¶ 42} Viewing the evidence in a light most favorable to the prosecution, the jury
reasonably could have found the charges against Moreland proven beyond a reasonable
doubt. The jury also did not clearly lose its way and create a manifest miscarriage of
justice. This was not an exceptional case in which the evidence weighed heavily against
conviction. Accordingly, the second assignment of error is overruled.
IV. Other-Acts Evidence
{¶ 43} In his third assignment of error, Moreland challenges the trial court’s
conditional overruling of his pretrial motion in limine. The trial court stated that it would
not allow evidence of Tiffany’s prior violent behavior unless Moreland pursued a self-
defense claim rather than arguing that she accidentally shot herself. While acknowledging
that self-defense and accident typically are inconsistent theories, Moreland contends the
evidence should have been allowed despite his failure to claim self-defense. He explains
that his argument “is not of self-defense to the crimes in which he was indicted but is self-
defense in the attempted resistance and disarming of Mrs. Moreland during the physical
altercation directly before the firearm was accidentally discharged, killing Mrs. Moreland.”
In essence, Moreland claims the shooting was an accident that occurred while he was -19-
defending himself by trying to wrest the gun away from Tiffany. Under these
circumstances, he insists the challenged evidence was relevant to his mindset and should
have been admitted despite his failure to pursue a self-defense strategy.
{¶ 44} It is true that an incident potentially may involve both self-defense and
accident. This court addressed such a situation in State v. Marbury, 2d Dist. Montgomery
No. 19226, 2004-Ohio-1817, reasoning:
The State argues that any error was harmless because Defendant
was not entitled to a self-defense instruction. The State points out that the
felonious assault charge to which the self-defense claim relates arises from
the victim’s gunshot injury. Because the Defendant claims that the gun fired
accidentally in the course of his struggle with the victim, according to the
State the Defendant’s claim of accident negates his right to argue self-
defense.
Implicit in the State’s argument is a view that, because a person’s
use of force in self-defense is necessarily a purposeful act, force that occurs
accidentally doesn’t qualify for self-defense. We agree with that view.
However, Defendant didn’t claim that he shot the victim in self-defense.
Rather, he claims that he jumped into the victim’s car to take his gun away
in order to defend himself from being shot. The fact that the gun discharged
accidentally in the course of that affray, as Defendant claims, does not
negate his right to claim self-defense with respect to the force he used that
led to the claimed accidental discharge. -20-
Id. at ¶ 15-16.
{¶ 45} However, the fact that an incident may involve self-defense and accident
does not help Moreland with regard to the evidentiary issue he raises. As an initial matter,
he failed at trial to renew his pretrial argument regarding evidence of Tiffany’s prior violent
behavior. “The granting or denial of a motion in limine does not determine the admissibility
of the questioned evidence.” State v. Jones, 2d Dist. Montgomery No. 28977, 2021-Ohio-
3050, ¶ 57. Rather, “[a] decision on a motion in limine is a tentative, interlocutory,
precautionary ruling by the trial court on the admissibility of evidence; as such, it cannot
serve as the basis for an assignment of error on appeal.” State v. Tyra, 2d Dist.
Montgomery No. 27040, 2017-Ohio-313, ¶ 28. “Failure to object to or proffer evidence at
trial based on the disposition made in a preliminary motion in limine constitutes a waiver
of any challenge,” and we are limited to plain-error review. Id. at ¶ 28-29. We see no error
here, plain or otherwise, in excluding the evidence at issue.
{¶ 46} In his motion in limine, Moreland did not seek to use evidence of Tiffany’s
prior violence to establish his state of mind. Rather, he explicitly sought to use “character
evidence of Tiffany’s past violent behavior towards him and her prior criminal conviction
to show she was likely the person who was the aggressor and the gun handler.” In other
words, Moreland sought to introduce evidence of Tiffany’s prior bad acts to prove that she
acted in conformity with that prior conduct in the present case. This is a textbook example
of “propensity” or “other acts” evidence that Evid.R. 404(B) prohibits.
{¶ 47} To be admissible, the “evidence must prove something other than the
defendant’s disposition to commit certain acts.” State v. Sutherland, 2021-Ohio-2433, 173 -21-
N.E.3d 942, ¶ 10 (2d Dist.). Here, however, Moreland proposed introducing evidence of
Tiffany’s prior aggression and gun handling to establish that she was an aggressor who
threatened him with a gun in this case. The trial court correctly refused to allow the
evidence to be introduced for this purpose. Exclusion would have been proper even if
Moreland had pursued a self-defense claim. See, e.g., State v. Barnes, 94 Ohio St.3d 21,
25, 759 N.E.2d 1240 (2002) (“Given the plain language of Evid.R. 404 and 405 and the
weight of compelling persuasive authority, we hold that a defendant asserting self-
defense cannot introduce evidence of specific instances of a victim’s conduct to prove
that the victim was the initial aggressor.”). Accordingly, the third assignment of error is
overruled.
V. Juror Misconduct
{¶ 48} In his fourth assignment of error, Moreland contends juror misconduct
requires a new trial. This assignment of error involves his post-verdict motion for a new
trial on the grounds that a black female juror may have felt threatened or pressured to
change her vote to guilty. In his motion, Moreland argued:
Subsequent to the jury being dismissed Juror 2 (a white female)
expressed anger towards Juror 5 (the sole black juror – a female) to the
bailiff. Juror 2 informed the bailiff that Juror 5 indicated her vote was
“innocent.” Juror 2 became very animated and loud in explaining what
occurred and stated to the bailiff she (Juror 2) came unglued after Juror 5
indicated her vote was “innocent” and the other jurors thought Juror 2 was
going to punch Juror 5. -22-
Taking Juror 2’s story as fact, her actions are troubling for a few
reasons. First, her conduct during deliberations may have impacted another
juror’s ability to make a free, voluntary decision about the verdict. Second,
Juror 2’s admitted conduct towards Juror 5 (which she claims other jurors
thought she was going to punch Juror 5) created a hostile environment
which may have affected Juror 5’s decision to change her vote from
innocent to guilty. Finally, the actions of Juror 2 towards Juror 5 affected
[Moreland’s] right to an impartial jury under the 6th Amendment.
(Footnotes omitted.) July 28, 2022 Motion for New Trial at 9.
{¶ 49} In support of the foregoing allegations, Moreland cited “[a]n email from the
bailiff to the State and defense counsel” that Moreland’s counsel claimed he had received
on July 22, 2022, two days after trial. Moreland did not attach the email to his new-trial
motion, but he asked the trial court to make it part of the record. He also requested a
hearing on his motion.
{¶ 50} The trial court overruled Moreland’s motion in a January 29, 2023 written
decision. It found no hearing necessary because the testimonial evidence upon which his
motion depended would be inadmissible. The trial court reasoned that “to prove juror
misconduct occurred, one or more jurors would have to testify as to statements or issues
that occurred during jury deliberations, which is not permitted under Evid.R. 606(B)(1).”
The trial court also determined that any testimony from court personnel, such as the bailiff,
regarding statements of jurors following the jury deliberations would be inadmissible
hearsay and also prohibited by Evid.R. 606(B)(1) as “evidence of any statement by the
juror concerning a matter about which the juror would be precluded from testifying.” -23-
Although the trial court was troubled at the prospect of jurors potentially being intimidated
or pressured, it stated that “the sanctity of the jury room must be protected, and jurors
cannot be permitted to change their vote after it is read in open court.” Finding no
admissible testimony to support Moreland’s allegations, the trial court overruled his
motion.
{¶ 51} On appeal, Moreland fails to identify any error in the trial court’s legal
analysis. Instead, he focuses on the substance of his allegations regarding a hold-out
juror possibly feeling threatened or intimidated by another juror. He also contends the trial
court erred in failing to investigate the matter and discuss it with the parties. Attached to
Moreland’s appellate brief are (1) a copy of the July 22, 2022 email from the bailiff
referenced above and (2) a July 18, 2023 affidavit from the bailiff that Moreland appears
to have obtained in connection with his appeal. We struck both exhibits in a November 8,
2023 order, noting that neither the e-mail nor the affidavit had been filed in the trial court
and that they were not part of the record on appeal.
{¶ 52} Upon review, we see no error in the trial court’s rejection of the juror-
misconduct claim without a hearing. The trial court correctly ruled that evidence of
tension, coercion, or pressure involving the jurors during deliberations would be
inadmissible under Evid.R. 606(B)(1), which provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon that or any other juror’s
mind or emotions as influencing the juror to assent to or dissent from the -24-
verdict or indictment or concerning the juror’s mental processes in
connection therewith. A juror’s affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be precluded from
testifying will not be received by the court for these purposes.
(Emphasis added.)
{¶ 53} Although Evid.R. 606(B)(2) identifies three exceptions, they do not apply.
The only conceivable exception would be Evid.R. 606(B)(2)(c), which provides that a juror
may testify about whether “any threat, any bribe, any attempted threat or bribe, or any
improprieties of any officer of the court occurred.” But even if the purported hold-out juror
may have felt threatened or intimidated by another juror, Moreland’s argument fails. The
allegations in Moreland’s new-trial motion do not reveal the existence of any actual threat,
regardless of how others in the room felt.
{¶ 54} Moreland’s motion alleged that the offensive juror became loud, angry, and
“unglued.” The Ohio Supreme Court has recognized, however, that shouting, coercion,
and even a “real blow up” in the jury room do not entitle a defendant to a hearing on
allegations of juror misconduct. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140
N.E.3d 616, ¶ 288-298. “ ‘The requirement of a unanimous decision * * * does not come
without a price. Heightened emotions and intense feelings are part and parcel of this
process. Experience tells us that during deliberations, it is not unusual to find heavy-
handed influencing, browbeating, and even bullying to a certain extent.’ ” Id. at ¶ 297,
quoting State v. Hessler, 90 Ohio St.3d 108, 120, 734 N.E.2d 1237 (2000).
{¶ 55} We note too that the purported hold-out juror was polled and confirmed her -25-
guilty verdict after deliberations. The purpose of polling is to “ascertain with certainty” that
jurors have not been coerced into accepting verdicts with which they disagree. Id. at
¶ 299. “[O]nce a poll of the jurors has been completed and all have assented to the
verdict, a juror may not thereafter rescind or modify his or her vote.” State v. Williams, 99
Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 38. Finally, we note that a new-trial
motion alleging juror misconduct must be supported by an affidavit under Crim.R. 33(C).
Moreland’s motion lacked an affidavit or any evidentiary support. For the foregoing
reasons, the trial court did not err in overruling his motion grounded in allegations of juror
misconduct. The fourth assignment of error is overruled.
VI. Conclusion
{¶ 56} Having overruled Moreland’s assignments of error, we affirm the judgment
of the Montgomery County Common Pleas Court.
EPLEY, J. and LEWIS, J., concur.