State v. Moreland

[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 :

:

...........

OPINION

Rendered on January 5, 2024

...........

ADAM J. ARNOLD, Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

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

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.

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{¶ 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

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“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.

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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

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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

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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.

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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

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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,

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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

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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

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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

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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

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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

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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

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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.

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{¶ 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

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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

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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

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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.

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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

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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.

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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.”

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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

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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

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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.