COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67148 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARILYN SCOTT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-303976 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROCCO J. RUSSO, ESQ. Cuyahoga County Prosecutor 730 Leader Building JOHN R. KOSKO, ESQ. Cleveland, Ohio 44114 JOHN W. MONROE, ESQ. Assistant County Prosecutors DENNIS N. LoCONTI, ESQ. 1200 Ontario Street MANOS & LoCONTI, CO., L.P.A. Cleveland, Ohio 44113 34950 Chardon Road, Suite 206 Willoughby Hills, Ohio 44094 ROBERT A. DIXON, ESQ. 1280 West 3rd Street, Suite 100 Cleveland, Ohio 44113 - 2 - DYKE, J.: Fred Scott was fatally shot in the early morning hours of October 30th in the driveway of his home. His wife, Marilyn Scott, was indicted on one count of aggravated murder, subsequently amended to murder on appellant's Civ.R. 29 motion, with a firearm specification. After a lengthy trial, the jury found her guilty of murder and the specification. The trial court sentenced appellant to fifteen years to life incarceration, plus three years for the use of the firearm. The testimony at trial was relatively consistent. The State's primary witness was Bernadette Lowe, a young woman who had worked as a housekeeper for the Scotts for several years. She testified that the Scotts had had marital disputes in the past, of which she became aware through both Fred Scott's and appellant's confidences. Scott had been violent on several occasions, once knocking down the door of appellant's bedroom and several weeks prior to the shooting he bit appellant on the finger and on her cheek. The Scotts' teenage son, Tory, also testified that these incidents occurred. On the evening in question, Ms. Lowe and appellant attended a fundraising function on behalf of the late Judge Fleming. They arrived at the fundraiser together in appellant's car. Scott was also there. After the fundraiser the women were invited to Judge Fleming's home, where they socialized until midnight or 12:30. The women then went to the bar/restaurant owned by the Scotts, Scotty's Mid-City Tavern. Scott was there with several others. At one - 3 - point Scott had ordered Ms. Lowe to get appellant out of the restaurant. Ms. Lowe testified that this was an unusual request to make of her and that she responded that they would be leaving soon. Shortly thereafter, Ms. Lowe rose to use the restroom. She heard a commotion behind her and also heard appellant saying, "Why did you have to hit me? Why did you have to hit me?" Ms. Lowe saw Sam Scott, Fred Scott's brother holding appellant in a headlock and several other men holding appellant's husband. Ms. Lowe also noted that appellant's glasses were missing so she retrieved them from the floor. Ms. Lowe helped appellant from the restaurant and out to the car. Appellant confided to Ms. Lowe that she had wet herself during the affray. They pulled over to the side of the road while appellant composed herself and Ms. Lowe attempted to comfort her. When the women arrived at the Scotts' home, they saw that Scott had just arrived and was opening the side door. Appellant's Infinity was parked behind Scott's Mercedes in the driveway. Appellant begged Ms. Lowe to come in to the house with her because she believed that Scott was still angry. Ms. Lowe agreed because she had to use the restroom. The Scotts continued arguing in the kitchen while Ms. Lowe waited in the restroom for things to settle down. According to both Ms. Lowe's testimony and appellant's version of events, appellant was attempting to calm Scott but he continued to yell and carry on. Scott refused to let Ms. Lowe leave the house until he had had his say. Scott demanded that - 4 - appellant give him her car keys, which demand she refused. After one-and-a-half hours of arguing, Ms. Lowe awoke from her light sleep on the living room sofa to the sound of glass breaking. She noted that the side door was open and headed toward the kitchen where the door was located. On the way she brushed by appellant who was standing by the stairs. When she got to the door, Ms. Lowe saw that the windows of appellant's Infinity were smashed. She asked Scott how it happened and he produced a hammer. When Ms. Lowe asked Scott why he had smashed the windows of the car, he responded, "Because I could. Now get your ass home." Ms. Lowe began to walk down the driveway toward the street where her car was parked. She looked back and saw appellant standing in the side door, very close to Scott. Ms. Lowe asked her if she was alright but got no response. She turned to leave and heard a gun shot. Ms. Lowe saw Scott fall to the ground. She rushed back and helped a hysterical Mrs. Scott administer CPR. Ms. Lowe spoke to the EMS personnel over the phone after appellant had called 911. Police and an ambulance arrived shortly, along with Ms. Lowe's mother. Appellant was arrested, then taken to St. Vincent's psychiatric ward for an evaluation and treatment. Scott was pronounced dead on the scene. Three gunshot wounds were found to have caused his death. Two of the shots were determined by the forensics experts to have been shot at very close range, the gun almost touching Scott's clothing. One shot was fired from two to - 5 - three feet away. The gun used to kill Scott was recovered at the scene, near his body. Another loaded gun was found in the pocket of Scott's trenchcoat, which he was wearing at the time of his death. The hammer seen by Ms. Lowe in Scott's hand was photographed by the police investigating the case in the garage. Tory Scott's testimony differed in several respects from Ms. Lowe's version of the events. Significantly, Tory stated that his parents had come into his room after the windows of the car were smashed. His mother woke him up, claiming that his father was demanding the keys to the car and had just broken the windows. His father then came into the room and stated that he had politely asked for the keys. They both left and shortly after that, Tory testified, he heard his mother run up the stairs and rummage in her closet, where he knew the gun was located. Next Tory heard the gunshot and ran downstairs. His father was lying on the driveway near the side door and his mother still had the gun in her hand. She was heading for the phone to call 911. Tory testified that he heard his father say, "Marilyn, why did you do it?" Tory claimed that at this point he hit his mother in the back of the head with the remote control to his television. Sam Scott testified on behalf of the State regarding the incident in the restaurant several hours prior to the shooting. He testified that appellant threw an ashtray at his brother. On cross-examination he stated that he did not actually see appellant throw the ashtray but saw it hit the wall. - 6 - The State produced a rebuttal witness to testify that she was working in the Scotts' restaurant during an incident which appellant described when she took the stand in her own defense. Appellant's version of the incident was that Scott had asked her to deliver an order of fish to a customer several blocks away. As she was busy, she told him she could not deliver the meal. He became enraged and pushed her into the garbage in the kitchen. The State's rebuttal witness testified that appellant had told Scott that she could not make the delivery, then proceeded to tell him to kiss her m-----f---ing ass. Appellant then began hitting and kicking him and in the process of trying to push her into a chair Scott accidentally pushed appellant into the trash next to the chair. According to appellant's testimony, she had never been afraid of Scott like she was the night of the shooting, in spite of his violent nature. Appellant testified as to Scott's prior abusive behavior. He had pulled a gun on her once while they were dating and had hit her in the mouth in 1983. More recently, appellant testified, Scott's behavior had become more violent. This change seemed to coincide with the discovery of his prostate cancer, which was successfully operated upon. Since that time Scott had shoved her in the garbage, kicked down her bedroom door, punched her in the head and bit her on the cheek and finger. Appellant also testified that Scott had prior convictions for running numbers and carrying a concealed weapon. She stated that he had told her of - 7 - several incidents where he had pistol-whipped people, once before they met and one time more recently in the parking lot of the restaurant. Appellant's version of what occurred in between the time they arrived at their home and the shooting contained more detail than the testimony of Ms. Lowe. Appellant claimed that Scott had made several threats upon her life that night, including once in the kitchen where he pointed his gun at her and said, "I hate you. I won't to blow the top of your head off." [sic]. At that point appellant called up to her son Tory to come see how his father was abusing her. Tory corroborated this testimony. He stated that he had heard his mother yelling up at him but ignored her because these arguments were familiar, not a cause of concern. Shortly after this, appellant saw Scott smashing the windows of her car. She testified that when he looked up and noticed her he said, "Bitch, when I get finished with this car, you're next." This is when she ran upstairs for her gun, telling Scott that she was going upstairs to fetch the car keys he had wanted. When she returned he said he did not want the keys any longer, the car was smashed. Appellant testified that she was terrified by the look in Scott's eyes. She said he walked toward the front of the house then turned and began walking toward her. He said, "Bitch, now I'm going to kill you." She asked him to stop, to leave her alone. When he did not stop, she shot him. He kept coming, even after the first shot. When he was almost upon her, she shot him twice more. She claimed - 8 - that it was impossible for Scott to have said anything after she shot him, as Tory claimed, because Scott appeared to have died immediately. Nevertheless, Ms. Lowe and appellant attempted to revive him by administering CPR. When the police arrived, appellant was standing near the fence along the side of the driveway, screaming, "Is he dead? Is he dead?" She repeated to the officers, "I shot him. I didn't mean to. He just kept coming at me." Appellant filed a timely notice of appeal from her conviction and sentence, asserting seven assignments of error. I THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THEY MUST UNANIMOUSLY AGREE THAT THE DEFENDANT IS NOT GUILTY OF MURDER BEFORE THEY MAY CONSIDER THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER. Appellant asserts that the instruction given to the jury by the trial court implied that the jury had to unanimously find that appellant was not guilty of murder before considering the elements of voluntary manslaughter. Appellant argues that the court's failure to properly instruct the jury amounted to plain error, affecting appellant's substantial rights and exacerbating the potential of a coerced verdict. We are not persuaded by appellant's argument. The trial court instructed the jury on the process of their deliberations regarding the possible offenses as follows: If you find that the State has failed to prove all the essential elements of the crime of murder, you may then consider the lesser offense of voluntary - 9 - manslaughter. (TR. p.1070) We do not find that this instruction violates the standard set forth in State v. Thomas (1988), 40 Ohio St.3d 213. Thomas prohibited the giving of a jury instruction which required that a jury unanimously acquit a defendant of the charged offense before proceeding to the deliberation of the lesser included offense. This type of instruction has been labeled an "acquittal first" instruction. The jury in the present case was not given an acquittal first instruction. The instruction given to the jury in the Thomas case was very similar to the instruction given in this case. It read as follows: However, if you find that The State has failed to prove beyond a reasonable doubt the element of prior calculation and design, then your verdict must be that the Defendant is not guilty of aggravated murder. You will then proceed with your deliberations and decide whether The State has proven beyond a reasonable doubt all of the essential elements of the lesser crime of murder. State v. Thomas (1988), 40 Ohio St.3d at 220. The Ohio Supreme Court in the Thomas case held that: This instruction does not expressly require unanimous acquittal on the charged crime, but rather addresses possible disagreement by the jury on the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder... In our opinion, this instruction has negligible coercive potential because it speaks to the jury's inability to find, whether unanimously or not, a certain element of the greater offense. We are not persuaded that the trial court's instruction unduly prejudiced the appellee, and thus we affirm his conviction of aggravated murder. State v. Thomas (1988), 40 Ohio St.3d at 220. - 10 - We find that the instruction given below properly addressed the procedure the jury was expected to adopt in its deliberations. The instruction did not, even implicitly, require a unanimous verdict of not guilty as to the murder offense before addressing the voluntary manslaughter offense. Therefore, the instruction did not violate the prohibition expressed in Thomas. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THE DEFENDANT HAD A DUTY TO "AVOID THE DANGER" OR "LEAVE THE SCENE OF THE TROUBLE," WHEN THE DEFENDANT WAS ENTITLED TO AND THE JURY WAS GIVEN THE "PEACOCK CHARGE" REGARDING DUTY TO RETREAT. Appellant argues that the language included in the jury instruction regarding situations in which self-defense is not available conflicted with the instruction regarding appellant's right to defend herself in her own home, without retreating. Appellant asserts that the former instruction actually negated the effect of the "no duty to retreat from one's own home" instruction, to which appellant was entitled. Appellant's argument is not well taken. Appellant fails to cite any authority for her proposition that the trial court erred in giving both instructions. However, we will address the merits of her assignment of error as there is little case authority existing on this point and the assignment was well argued in appellant's brief. We find that both instructions as given are the law in Ohio - 11 - and both instructions are justified by the evidence before the jury. We further hold that the instructions are not in conflict. To avail herself of the affirmative defense of self-defense it was necessary that appellant prove by a preponderance of the evidence that: (1) * * * [she] was not at fault in creating the situation giving rise to the affray; (2) * * * [she] has [sic] a bona fide belief that [she] was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of * * * force; and (3) * * * [she] must not have violated any duty to retreat or avoid the danger. * * * State v. Robbins (1979), 58 Ohio St. 2d 74, 12 O.O. 3d 84, 388 N.E. 2d 755, paragraph two of the syllabus. State v. Williford (1990), 49 Ohio St.3d 247, 249. An exception to the duty to retreat exists where one is attacked in one's own home. State v. Jackson (1986), 22 Ohio St.3d 281. However, several appellate courts have found that a duty to avoid the danger can remain under circumstances where one has no duty to retreat. [E]ven where "there is no duty to retreat * * * a defendant is not in a position to claim self-defense if he sought trouble, provoked a fight, or renewed a fight that had been broken off, and did not attempt to avoid it or leave the scene of the trouble." State v. Hale (Oct. 13, 1989), Montgomery App. No. CA 11473, unreported. The issue of self-defense is a question of fact for the trier of fact * * *. State v. Doan (Dec. 28, 1994), Hamilton App. No. C-940048, unreported. Under the facts presented in this case, the jury could have found that appellant was attacked in her own home and therefore had no duty to retreat. The jury could also have found that appellant - 12 - sought trouble by retrieving the gun when Scott was outside smashing the car windows. The evidence also supported a finding that appellant failed to make any attempt to avoid the trouble when she met Scott at the sidedoor and shot him in the driveway. We do not find that the two instructions given to the jury conflicted or that one negated the other. Appellant's second assignment of error is overruled. III THE TRIAL COURT'S "PEACOCK INSTRUCTION" TO THE JURY WAS IMPROPERLY WORDED AND PREJUDICED THE DEFENDANT. Appellant argues that the instruction did not specify the level of force appellant was entitled to use. This left the jury to infer that appellant would have been allowed the no-duty-to- retreat status only if less than deadly force was used, according to appellant's argument. Appellant's argument is without merit. The trial court's instruction to the jury was stated as follows: The duty to retreat does not apply where a person, who through no fault of her own, is attacked by an intruder in her home. If the defendant had reasonable grounds and an honest belief that she was in imminent danger of death or great bodily harm and that the only means of escape from such danger was by assaulting her assailant, then she was justified, even though she was mistaken as to the existence of such danger. (TR. p.1078). Appellant's claim that this instruction had the prejudicial effect of misleading the jury is not well founded. We do not read this instruction to imply that a defendant will not be entitled to - 13 - the exception to the duty to retreat if that defendant uses deadly force. The instruction refers to a defendant's state of mind at the time force is used when the language "by assaulting her assailant" is given. The instruction does not address the level of force to be used to repel the intruder, therefore implying that any reasonable level of force is justified to defend oneself without retreating. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S RULE 29 MOTION FOR ACQUITTAL. Appellant asserts that each of the elements of self-defense was supported by a preponderance of the evidence, such that reasonable minds could not differ on the issue of appellant's guilt. We are not persuaded by appellant's argument. The standard of review used by this Court in determining whether evidence was sufficient to support the conviction was stated by the Ohio Supreme Court as follows: 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 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 (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. - 14 - The elements of self-defense are cited above under the second assignment of error. Also under that assignment of error we found that evidence was presented from which a rational jury could conclude that appellant sought trouble by retrieving the gun from the upstairs bedroom while Scott was outside. Furthermore, we found that a jury could conclude that appellant failed to avoid the danger by first arming herself then meeting Scott at the sidedoor, rather than taking other steps to avoid the confrontation. Failure to prove any one of the elements of self-defense by a preponderance of the evidence renders that defense unavailable to a defendant. Appellant failed to present sufficient evidence to prove several elements of self-defense. The trial court did not err in denying appellant's Crim.R. 29 motion for acquittal based upon the evidence presented to support her theory of self-defense. Appellant's fourth assignment of error is overruled. V THE JURY'S VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the evidence was insufficient to support the requisite element of purpose. Furthermore, appellant asserts that the conviction is against the manifest weight of the evidence because the evidence overwhelmingly supports appellant's assertion that she had reasonable cause to believe she had to stop the victim. Neither of appellant's arguments are well taken. - 15 - Utilizing the standard of review for sufficiency of the evidence cited under appellant's fourth assignment of error, we find that rational minds could have found that the element of purpose was proven beyond a reasonable doubt. "Purposely" is defined in R.C. 2901.22(A) as follows: A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. Rational triers of fact could have found that appellant had the specific intention to kill Scott. Viewing the evidence in a light most favorable to the prosecution, it is clear that appellant retrieved the gun, met Scott at the side door and fired three shots into his body at close range. The requisite element of purpose was supported by sufficient evidence. The second part of appellant's fifth assignment of error is a claim that the conviction is against the manifest weight of the evidence because the evidence overwhelmingly proved that appellant had reasonable cause to believe she had to prevent Scott from killing her by killing him first. We are not convinced that the conviction should be overturned and a new trial granted, after reviewing the evidence. The standard of review used to determine the issue of manifest weight of the evidence is stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in - 16 - resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, paragraph three of the syllabus. Evidence in the record supports appellant's theory that Scott was not an easy-going, gentle spirited man. He had knocked in her bedroom door, struck her in the head and bitten her, all within a several month time period before the shooting. Appellant testified that the evening of the shooting he had struck her in public and made threats against her life. She claimed that he was threatening her life as she stood in the sidedoor, just moments before she shot him. Evidence also existed from which the jury could have surmised that appellant also played a role in the marital disputes. Appellant's version of how Scott had thrown her in the garbage was met by another witness' version which claimed that appellant provoked the argument and was physically assaulting Scott, who had not intended for appellant to land in the garbage. Appellant admitted that the situation which culminated in Scott's biting her finger and cheek was exacerbated by her action in grabbing for the bag in which Scott kept the receipts from the restaurant business. The jury could have listened to the evidence and found that appellant's testimony regarding Scott's threat on her life before shooting him was not credible. - 17 - We can not find that the jury clearly lost its way and created a manifest miscarriage of justice in convicting appellant of murdering her husband. The evidence does not overwhelmingly support a theory of self-defense to prevent the jury from finding her guilty of the murder offense. Appellant's fifth assignment of error is overruled. VI THE PROSECUTOR'S STATEMENTS DURING CLOSING ARGUMENT CONSTITUTED PROSECUTORIAL MISCONDUCT: A. REGARDING DEFENDANT'S ABILITY TO RETREAT AND/OR LEAVE THE SCENE B. REGARDING DEFENDANT'S ACTION OF ARMING HERSELF C. REGARDING DEFENDANT'S ALLEGED MOTIVE AND OTHER FACTS NOT IN EVIDENCE. Appellant argues that the statements of the prosecutor rose to the level of a constitutional violation of appellant's due process right to a fair trial. Appellant asserts that the prosecutorial misconduct amounted to plain error, overcoming the fact that appellant's defense counsel failed to object to the comments at the time of trial. Appellant's argument is not well taken. Crim.R. 52(B) allows an appellate court to take notice of claims of error, not objected to at trial, if those errors affect the substantial rights of the defendant. The Meigs County Court of Appeals has recently defined the test used to determine prosecutorial misconduct: [T]he test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318-319, 470 N.E.2d 883, 885. The effect of counsel's misconduct must - 18 - be considered in light of the whole record. See State v. Durr (1991), 58 Ohio St.3d 86, 94, 568 N.E.2d 674, 683; State v. Maurer (1984), 15 Ohio St. 3d 239, 266, 15 OBR 379, 401-403, 473 N.E.2d 768, 792-93; State v. Jackson (June 13, 1991), Jackson App. No. 633, unreported, 1991 WL 110221. A prosecutor's misconduct at trial can be made a ground of reversible error only if appellant was found to have been denied a fair trial. Durr, supra. State v. Bush (1994), 97 Ohio App.3d 20, 28. This Court has further held that: In making this determination, the court considers several factors: (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant. State v. Barnes (Oct. 27, 1988), Cuyahoga App. No. 54527, unreported, at 9, 1988 WL 114487. State v. Spinks (1992), 79 Ohio App.3d 720, 731. First, portraying appellant as the aggressor in the situation, acting out of anger at her husband's withholding of money and destroying her car, was not misconduct on the part of the prosecution. These statements were each supported by the facts and testimony presented at trial. As already noted, no objection was made to these comments at the time of the trial and therefore, no corrective instructions were requested from the court. Furthermore, given the state of the evidence in the present case, it is clear that appellant would have been convicted even if the prosecution had not made comments regarding other possible courses of action available to appellant and the possibility that she killed Scott in anger, rather than in defense of her person. Accordingly, appellant's sixth assignment of error is overruled. - 19 - VII THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE STATE'S MOTION IN LIMINE AND DENIED APPELLANT THE OPPORTUNITY TO PRESENT EVIDENCE OF THE VICTIM'S CHARACTER IN ORDER TO ESTABLISH WHO WAS THE AGGRESSOR, AND CORROBORATING EVIDENCE OF HER STATE OF MIND REGARDING THE VICTIM'S HISTORY AND PROPENSITY FOR VIOLENCE. Appellant argues that the trial court should have allowed the evidence from third parties as to the victim's violent character to be admitted. Appellant asserts that this evidence went to the issues of who was the aggressor and appellant's state of mind at the time she shot her husband. Appellant's assertion is without merit. A defendant, when arguing self-defense, may testify about specific instances of the victim's prior conduct which were known to the defendant in order to establish the defendant's state of mind. State v. Carlson (1986), 31 Ohio App.3d 72, 31 OBR 112, 508 N.E.2d 999, paragraph one of the syllabus; State v. Brown (May 7, 1987), Cuyahoga App. No. 52098, unreported, at 3-4, 1987 WL 11197. Evid.R. 404(A)(2) provides that evidence of a pertinent trait of character of the victim of the crime offered by the accused is admissible. Evid.R. 405 provides the means by which character may be proved. A person's character may be proved by reputation or opinion testimony in all cases in which character evidence is admissible. Evid.R. 405(A). Evidence of specific instances of conduct is admissible in cases where character or trait of character is an essential element of a charge, claim or defense. Evid.R. 405(B). State v. Spinks (1992), 79 Ohio App.3d at 730. The facts in the Spinks case are quite similar to the present case in that a woman alleged self-defense after killing her husband and sought to introduce evidence of his violent character. This Court affirmed the trial court's ruling which denied the admission - 20 - of evidence through witnesses and records which corroborated the defendant's testimony of her husband's violent character. This Court held: In the present case, the trial court afforded appellant great leeway in testifying to matters of past violent incidents between appellant and the decedent. In fact, appellant testified to the decedent's violent past with his ex-wife. This was entirely permissible. Carlson, supra, paragraph one of the syllabus. However, corroborating evidence of the victim's character, offered to substantiate her testimony, through her mother's advice, a police report of a domestic violence incident, and a divorce complaint and affidavit filed by decedent's ex-wife was properly excluded. Evid.R. 405(B); Carlson, supra, at 74, 31 OBR at 114-115, 508 N.E.2d at 1001 ("The victim's character is not an essential element of self- defense."); State v. Smith (1983), 10 Ohio App.3d 99, 101, 10 OBR 122, 125, 460 N.E.2d 693, 697. State v. Spinks (1992), 79 Ohio App.3d at 730. In the case at bar appellant was allowed to testify at length to what she knew about Scott's reputation for violence. She testified to the fact that he had pistol-whipped several men, had struck her several times, had bitten her cheek and finger and had pushed her in the garbage. Appellant also testified to her knowledge of Scott's felony record for running numbers and the fact that he carried a weapon on his person at all times. This testimony was properly allowed under Evid.R. 404(A)(2). However, the trial court properly held that the corroborating evidence of appellant's testimony was not admissible. Evid.R. 405(B). Appellant's seventh assignment of error is overruled. Appellant's conviction and sentence are hereby affirmed. - 21 - - 22 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., AND *CORRIGAN, J., CONCUR. ANN DYKE JUDGE *Sitting By Assignment: Judge John V. Corrigan, Retired, of the Eighth District Court of Appeals. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .