[Cite as State v. Sepeda, 2020-Ohio-4167.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1125
Appellee Trial Court No. CR0201901145
v.
Rafael Sepeda DECISION AND JUDGMENT
Appellant Decided: August 21, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Drew E. Wood, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
ZMUDA, P.J. I. Introduction
{¶ 1} Appellant, Rafael Sepeda, appeals the judgment of the Lucas County Court
of Common Pleas, sentencing him to three years in prison after a jury found him guilty of
one count of felonious assault. Because we find that the trial court abused its discretion
in excluding other-acts evidence of the victim under Evid.R. 404(B), we reverse and
remand this matter to the trial court for a new trial. A. Facts and Procedural Background
{¶ 2} On December 26, 2018, appellant was involved in a confrontation with A.E.
at the corner of Logan Street and Broadway Street in Toledo, Ohio. At some point during
the confrontation, A.E. was allegedly struck by appellant’s Ford Explorer sport utility
vehicle.
{¶ 3} As a result of the confrontation, appellant was indicted on January 25, 2019,
and charged with one count of felonious assault in violation of R.C. 2903.11(A)(2), a
felony of the second degree. Appellant entered a plea of not guilty to the aforementioned
charge, and the matter proceeded through pretrial discovery and motion practice.
{¶ 4} On March 14, 2019, appellant filed a “notice of intent to use ‘other acts’
testimony pursuant to [Evid.]R. 404(B) and R.C. 2945.59,” informing the court of his
desire to introduce evidence of A.E.’s prior conduct in order to demonstrate that the
incident giving rise to the state’s indictment was preplanned by A.E. In particular,
appellant wished to introduce evidence in the form of testimony from Kevin McMahon,
who had previously reported a similar incident involving A.E. to law enforcement, as
follows:
Mr. McMahon told police that the alleged victim had stared down Mr.
McMahon during a green light, which forced Mr. McMahon to stop. The
alleged victim then started yelling and swearing at Mr. McMahon and
kicked dents into Mr. McMahon’s truck. He further stated that he believed
2. the alleged victim would have jumped on the top of his vehicle if Mr.
McMahon had not driven away.
{¶ 5} In his notice, appellant asserted that he did not wish to introduce the
foregoing evidence in order to show conformity with A.E.’s prior acts, but rather, in order
to “show that the alleged victim had a motive and plan to accost the Defendant which is
permitted by Evidence Rule 404(B).”
{¶ 6} Following a response in opposition from the state, the trial court held a
hearing on appellant’s notice on April 26, 2019. Two witnesses testified at the hearing.
Appellant’s wife, Kathy, was the first to testify. Kathy was present in appellant’s vehicle
when the December 26, 2018 confrontation between appellant and A.E. occurred.
{¶ 7} According to her testimony, Kathy and appellant were stopped at a stop sign
on Logan Street and Broadway Street when A.E. walked in front of their vehicle,
traveling from left to right along the crosswalk. Kathy noted that a deputy sheriff sticker
and badge was displayed in the window of appellant’s vehicle. Kathy explained that A.E.
“kept turning his head and looking at us. * * * And when he got on my husband’s side of
the car, he spit whatever was in his mouth at the car. And then he went on across the
street over to – over to this sidewalk.” Kathy stated that A.E. kept looking back toward
appellant as he continued down the sidewalk, “and then [A.E.] threw down his cup and
turned and started running toward our vehicle.”
{¶ 8} In response to A.E. charging at his vehicle, appellant attempted to flee the
scene. Because the traffic on Broadway Street was heavy at the time, and since another
3. vehicle was behind him, appellant was forced to pull his vehicle off the road and onto the
grassy area of a nearby parcel. Kathy testified that A.E. approached appellant’s side of
the vehicle at this point, began to curse at appellant, and directed appellant to get out of
the car.
{¶ 9} Kathy stated that A.E. hit the driver’s side mirror and front door. In
response, appellant told A.E. that he was a deputy sheriff, and instructed A.E. to step
away from the vehicle. Rather than comply, A.E. allegedly paced back and forth in front
of the vehicle, preventing appellant’s escape from the scene. Kathy stated that A.E.
continued by striking the hood of appellant’s vehicle with his hand, jumped onto the
hood, and “began punching the car and just punching it and punching and then he threw
his body on the windshield and kept slamming, slamming his body on the windshield.”
{¶ 10} Eventually, A.E. slid off of the hood, prompting appellant to turn the
vehicle to the left and flee the scene. Kathy reported that A.E.’s actions physically
damaged the hood and driver’s side of the vehicle. Further, Kathy explained that the
exhaust system detached from the underside of the vehicle when appellant drove over the
curb as he was trying to escape.
{¶ 11} On cross-examination, Kathy confirmed that appellant had already
attempted to escape and drove over the curb by the time A.E. approached the vehicle and
hit it on the driver’s side. She described the confrontation as happening “very, very
quickly,” approximately two to three minutes in total.
4. {¶ 12} Appellant called McMahon as his second and final witness. McMahon
testified that he was watching the local news on television when a news report of the
December 26, 2018 incident was discussed. At the time, McMahon recognized A.E. as
“a guy that kicked my car, threw himself against my car a few months earlier.” After
seeing the news report, McMahon contacted the Lucas County Sheriff’s Department and
informed officers of his prior interaction with A.E. in East Toledo.
{¶ 13} At the hearing, McMahon recounted the details of his encounter with A.E.
According to McMahon, he was traveling at a speed of 40 m.p.h. when he noticed a man,
later identified as A.E., begin to walk slowly across the road in his lane of travel.
McMahon slowed down, and was eventually forced to stop because A.E. walk in front of
his vehicle. A.E. stood in front of McMahon’s vehicle, staring at McMahon, for a period
of 90 seconds. A.E.’s actions during this time led McMahon to believe that A.E. wanted
to jump onto his hood. However, a Buick emblem that protruded from the hood would
have “tore [A.E.’s] stomach up” if he jumped on the hood. McMahon waved A.E.
onward, in an effort to encourage A.E. to proceed to the other side of the road.
{¶ 14} Eventually, A.E. moved to the side of McMahon’s vehicle. McMahon
testified that he then “lurched forward, because I knew that either he was going to try and
get in my car or it was my opportunity to move forward. As I moved forward, he came
along this side and threw himself against my back quarter panel and with his knee – * * *
[A.E.] caved in the whole side of my quarter panel.” Afterwards, A.E. started cursing
5. and screaming at McMahon, challenging him to a fight. McMahon described A.E. as
“practically foaming at the mouth. I mean he went ballistic.”
{¶ 15} On cross-examination, McMahon was asked why he came forward with the
foregoing information in this case. McMahon explained that he was “so mad that this
guy did this to me. * * * And I was just irritated because I didn’t turn it in. I didn’t call
the police and I thought the guy was, my own opinion, doing an insurance scam. And it
would have happened to me if I would have done anything wrong.”
{¶ 16} At the conclusion of McMahon’s testimony, the parties presented their
arguments regarding the admissibility of the other acts evidence under Evid.R. 404(B).
Appellant asserted that the evidence was admissible under the rule because it
demonstrated A.E.’s plan or common scheme of accosting motorists, unprovoked,
ostensibly so that he would subsequently be able to assert insurance claims against the
motorists when he was injured. The state opposed appellant by contending that he failed
to demonstrate a plan, particularly noting that McMahon merely speculated about
whether A.E. was attempting an insurance scam when he confronted McMahon.
Ultimately, the trial court took the matter under advisement.
{¶ 17} On May 1, 2019, the trial court issued its order on appellant’s notice of
intent to use Evid.R. 404(B) evidence at trial. In its order, the trial court found that
McMahon’s testimony was dissimilar from the facts of this case and thus inadmissible
under Evid.R. 404(B). In particular, the court found:
6. While there are similarities between the two encounters, they are separated
by time and place. In Defendant’s case, [A.E.] was several yards away
from Defendant when something provoked him to return to Defendant’s
vehicle. In Mr. McMahon’s case, Mr. Edwards did not hop on the Buick,
and it is unclear what provoked him to kick the car as it was driving away.
These and other details of the two incidents with [A.E.] demonstrate
significant factual contrasts between what allegedly happened on
December 26, 2018 in south Toledo and what allegedly happened in
October or November of 2018 on Woodville Road in east Toledo. The
evidence of alleged conforming character overshadows any potentially
valid evidentiary value, such as motive, plan, scheme, and the like. The
value of such evidence is substantially outweighed by the danger of both
unfair prejudice and the danger that what would eventuate is a trial within a
trial.
{¶ 18} Following the trial court’s denial of appellant’s request to admit
McMahon’s testimony, the parties completed their discovery and the matter proceeded to
a jury trial. On June 6, 2019, the jury returned a guilty verdict to the charge of felonious
assault. The matter proceeded immediately to sentencing, and appellant was ordered to
serve three years in prison. Appellant’s timely appeal followed.
7. B. Assignments of Error
{¶ 19} On appeal, appellant assigns the following errors for our review:
I. The trial court’s ruling barring the introduction of independent
testimony of similar bad acts of the complainant, specifically the
complainant attacking another vehicle weeks before, was an error which
denied former Deputy Sepeda his rights to present a defense and to a trial
by jury under the Constitutions of Ohio and the United States.
II. The trial court erred, and Mr. Sepeda was denied his rights to
present a defense and to confront the witnesses against him under the
Constitutions of Ohio and the United States when the court sustained the
prosecution’s objection to defense counsel questioning the complainant.
III. Under the facts and circumstances of the case, the trial court’s
instruction to the jury that former Deputy Sepeda’s retreat from the scene
could be construed as indicia of guilt was in error and denied Sepeda his
right to a fair trial and to present a defense under the Constitutions of Ohio
and the United States.
IV. Former Deputy Sepeda was denied the right to a fair trial when
the prosecution stated to the jury that it could not consider self-defense at
all, and argued a legal proposition directly contrary to Ohio Law in effect at
the time of trial and repeatedly made statements in closing which
improperly shifted the burden of proof onto the defendant.
8. V. The prosecution failed to present sufficient evidence to prove
every element of the crime charged.
VI. The jury lost its way and the conviction was contrary to the
Manifest Weight of the Evidence.
II. Analysis
A. Admissibility of McMahon’s Testimony Under Evid.R. 404(B)
{¶ 20} In his first assignment of error, appellant argues that the trial court’s denial
of his request to introduce evidence of A.E.’s confrontation of McMahon in October or
November of 2018 deprived him of his rights to present a defense and to a trial by jury
under the Constitutions of Ohio and the United States.
{¶ 21} We note at the outset that appellant’s constitutional argument that his right
to present a complete defense was infringed in this case rises and falls on whether the
trial court erroneously prohibited him from introducing the proffered evidence under the
applicable rules of evidence. Indeed, “a complete defense does not imply a right to offer
evidence that is otherwise inadmissible under the standard rules of evidence.” U.S. v.
Lucas, 357 F.3d 599, 606 (6th Cir.2004), citing Rockwell v. Yukins, 341 F.3d 507, 512
(6th Cir.2003) (en banc) and Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98
L.Ed.2d 798 (1988). Thus, as a threshold matter, we must consider the applicability of
Evid.R. 404(B) to this case.
{¶ 22} In the typical scenario, Evid.R. 404(B) is applied in cases in which the state
seeks to introduce evidence of a defendant’s prior acts in order to establish the
9. defendant’s criminal conduct. However, this is not the ordinary case. Here, appellant
sought to introduce other acts evidence of a third party in order to exonerate himself.
This type of evidence has been referred to as “reverse 404(B)” evidence. State v.
Gillispie, 2012-Ohio-2942, 985 N.E.2d 145, ¶ 25 (2d Dist.), citing State v. Clifford, 121
P.3d 489 (Mont.2005).
{¶ 23} While reverse 404(B) evidence is rarely used, its use is not unprecedented.
In Ohio, only a few courts have examined the admissibility of such evidence. Most
notably, the Second District Court of Appeals in Gillispie considered the applicability of
Evid.R. 404(B) in casing involving a defendant’s use of reverse 404(B) evidence. There,
the court looked to the way in which the United States Circuit Courts of Appeals have
addressed this issue under the Federal Rules of Evidence, which are similar to Ohio’s
Rules of Evidence, and concluded that a majority of federal circuits permit reverse
404(B) evidence so long as its probative value is not substantially outweighed by
considerations contained in the federal counterpart to Evid.R. 403. Id. at ¶ 19, citing U.S.
v. Stevens, 935 F.2d 1380 (3d Cir.1991).1 The court followed the approach of the
majority of federal circuit courts, and held that other acts evidence offered by a defendant
1 In so holding, the court in Gillispie noted that some circuits, including the Sixth Circuit, have held that Evid.R. 404(B) does apply to reverse 404(B) evidence. Id., citing Wynne v. Renico, 606 F.3d 867, 873 (6th Cir.2010) (Martin, J., concurring in the result based on precedent, but criticizing the Sixth Circuit Court of Appeals’ former decision in Lucas, supra, as illogical and as having been wrongly decided).
10. to support his defense should be evaluated using a balancing approach under Evid.R. 403,
not Evid.R. 404(B). Id. at ¶ 20.
{¶ 24} Because we agree with the analysis articulated by our sister court in its
well-reasoned decision in Gillispie, we too hold that Evid.R. 403’s balancing test is the
applicable standard for ascertaining the admissibility of reverse 404(B) evidence. Having
reviewed the order denying appellant’s request to admit reverse 404(B) evidence of
A.E.’s prior confrontation with McMahon, it is clear that the trial court applied Evid.R.
404(B) in arriving at its decision. In this respect, the trial court erred. However, our
analysis does not end here, because the trial court, in analyzing the applicability of the
reverse 404(b) evidence, also engaged in a cursory Evid.R. 403(A) analysis, and found
that the value of the evidence of A.E.’s prior confrontation with McMahon “is
substantially outweighed by the danger of both unfair prejudice and the danger that what
would eventuate is a trial within a trial.” Thus, we must examine whether the trial court
abused its discretion in concluding that the evidence was inadmissible under Evid.R.
403(A).
{¶ 25} Evid.R. 403(A) provides:
(A) Exclusion Mandatory. Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues, or of misleading the jury.
{¶ 26} Trial courts are afforded broad discretion in balancing the probative value
of evidence against the danger of unfair prejudice to the defendant under Evid.R. 403(A).
11. See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 171.
Consequently, we review the trial court’s Evid.R. 403(A) determination under an abuse
of discretion standard. Id. An abuse of discretion implies that the trial court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶ 27} “In reaching a decision involving admissibility under Evid.R. 403(A), a
trial court must engage in a balancing test to ascertain whether the probative value of the
offered evidence outweighs its prejudicial effect.” State v. Wright, 8th Dist. Cuyahoga
No. 108026, 2019-Ohio-4460, ¶ 50, citing State v. Maurer, 15 Ohio St.3d 239, 473
N.E.2d 768 (1984), paragraph seven of the syllabus. In order for the evidence to be
deemed inadmissible under Evid.R. 403, its “probative value must be minimal and the
prejudice great.” State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987).
“When determining whether the relevance of evidence is outweighed by its prejudicial
effects, the evidence is viewed in a light most favorable to the proponent, maximizing its
probative value and minimizing any prejudicial effect to the party opposing admission.”
State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22.
{¶ 28} In examining the prejudice prong of Evid.R. 403, the Supreme Court of
Ohio has observed that all relevant evidence is prejudicial, since “evidence that tends to
disprove a party’s rendition of the facts necessarily harms that party’s case.” State v.
Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. The court went on
12. to emphasize that “only evidence that is unfairly prejudicial is excludable.” (Emphasis
sic.) Id.
{¶ 29} “Unfair prejudice does ‘not mean the damage to a [party’s] case that results
from the legitimate probative force of the evidence; rather it refers to evidence which
tends to suggest decision on an improper basis.’” State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶ 89, quoting United States v. Bonds, 12 F.3d 540 (6th
Cir.1993). “Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169,
172, 743 N.E.2d 890 (2001), quoting Weissenberger’s Ohio Evidence (2000) 85-87,
Section 403.3. It is evidence that “‘arouses the jury’s emotional sympathies, evokes a
sense of horror, or appeals to an instinct to punish’” and generally “‘appeals to the jury’s
emotions rather than intellect.’” Id.
{¶ 30} Applying the foregoing principles to the case sub judice, we find that the
probative value of A.E.’s prior confrontation with McMahon was not substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury. In offering this evidence, appellant sought to establish A.E.’s pattern of
aggressive behavior, first with an unprovoked attack on McMahon and second with an
unprovoked attack on appellant. In both instances, A.E. allegedly approached a motorist
and initiated a physical confrontation with no incitement from the motorist. The evidence
of A.E.’s prior unprovoked confrontation with McMahon can be viewed as highly
probative here as it lends credence to appellant’s claim that it was A.E. who accosted
13. him, not vice versa. Moreover, this evidence, if believed, may cast doubt upon A.E.’s
credibility generally and the veracity of his testimony in this particular case.
{¶ 31} Furthermore, the evidence of A.E.’s prior confrontation with McMahon is
not unfairly prejudicial to the state. Indeed, this evidence does not arouse sympathy,
evoke horror, or appeal to the jury’s instinct to punish. Rather, this evidence invites the
factfinder to draw a logical conclusion, namely that because A.E. has engaged in strange
and aggressive behavior under similar circumstances (i.e., an unprovoked encounter with
an unknown motorist), he therefore may not be telling the truth when he accuses
appellant of being the aggressor in this case.
{¶ 32} While the jury’s potential disbelief of A.E. may prejudice the state’s case, it
does so by attacking the credibility of the accuser in this case, and is thus not unfairly
prejudicial to the state. The jury is permitted to filter A.E.’s accusation that he was run
over by appellant through the lens of A.E.’s prior confrontation with McMahon, as an aid
to the jury’s vetting of A.E.’s credibility. Indeed, the proper function of the jury requires
the inclusion of such evidence as a predicate for the jury to carry out its role as factfinder.
This is especially true where the evidence is being offered by a criminal defendant to
support his defense, where an error in the jury’s credibility determination could result in
significant prison time for the defendant.
{¶ 33} In short, we find that the balancing analysis under Evid.R. 403(A) weighs
in favor of admission of the evidence of A.E.’s prior confrontation with McMahon.
Therefore, we find that the trial court abused its discretion in denying appellant’s request
14. to introduce the evidence. Moreover, in light of the conflicting testimony that was
offered by the parties’ witnesses at trial concerning whether appellant was provoked by
A.E. prior to appellant’s vehicle contacting A.E., we cannot say that the trial court’s
evidentiary error was harmless beyond a reasonable doubt.
{¶ 34} In light of the foregoing, we find appellant’s first assignment of error well-
taken. Our resolution of the first assignment of error in appellant’s favor warrants a new
trial, thereby rendering appellant’s second, third, fourth, and sixth assignments of error
moot.
B. Sufficiency of the Evidence
{¶ 35} In appellant’s fifth assignment of error, he argues that his conviction was
not supported by sufficient evidence. “Because ‘the state is not entitled to retry a
criminal defendant after reversal for trial court error if the state failed in the first instance
to present sufficient evidence * * * a defendant’s assigned error that the conviction is
based on insufficient evidence is not moot under these circumstances.’” State v. Mathis,
6th Dist. Lucas No. L-18-1192, 2020-Ohio-3068, ¶ 78, quoting State v. Vanni, 182 Ohio
App.3d 505, 2009-Ohio-2295, 913 N.E.2d 985, ¶ 15 (9th Dist.).
{¶ 36} In reviewing a record for sufficiency, “[t]he 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.
15. {¶ 37} Here, appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which provides:
(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to
another’s unborn by means of a deadly weapon or dangerous ordnance.
{¶ 38} At trial, the state called eight witnesses, including A.E. and several
eyewitnesses of the incident at issue in this case. Taken together, the testimony of the
state’s witnesses was sufficient to establish that appellant caused or attempted to cause
physical harm to A.E. by running into him with a deadly weapon, namely a motor
vehicle. See R.C. 2903.11(D)(3) (acknowledging that a motor vehicle qualifies as a
deadly weapon).
{¶ 39} Collectively, the state’s witnesses testified that appellant was stopped at the
intersection of Logan and Broadway when A.E. entered the crosswalk. Because
appellant’s vehicle was obstructing the crosswalk at the time, A.E. was forced to walk
into Broadway Street, a busy thoroughfare. A.E. was visibly upset as he walked around
appellant’s vehicle, spitting on the ground in the direction of appellant’s vehicle.
{¶ 40} According to A.E., appellant rolled his window down and uttered a racial
epithet as A.E. was proceeding through the crosswalk. A.E. turned around and threw his
arms in the air. A.E. proceeded to throw an empty cup toward appellant’s vehicle, but no
contact with the vehicle was made. A.E. then turned around to continue on his way. At
16. this point, appellant entered the intersection, made a U-turn, and maneuvered his vehicle
toward A.E. at a speed of approximately 10 to 20 m.p.h., only briefly braking as he
proceeded over a curb. Ultimately, appellant struck A.E. with his vehicle, forcing A.E. to
jump onto the hood to avoid being run over, and injuring A.E. Each of the eyewitnesses
to testify for the state indicated that appellant was not under any threat from A.E. at the
time of the contact.
{¶ 41} After viewing the evidence introduced by the state in this case in a light
most favorable to the prosecution, we find that a rational trier of fact could have found
the essential elements of felonious assault proven beyond a reasonable doubt.
Accordingly, we find appellant’s fifth assignment of error not well-taken.
III. Conclusion
{¶ 42} In light of the foregoing, we find that substantial justice has not been done
the party complaining, and the judgment of the Lucas County Court of Common Pleas is
reversed. Because the trial court abused its discretion in excluding evidence of A.E.’s
prior confrontation with McMahon, this matter is remanded to the trial court for a new
trial. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed and remanded.
17. State v. Sepeda C.A. No. L-19-1125
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
18.