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State v. Hawn6/30/2000
ery dramatic fashion the various materials that come out of the barrel of a gun when it is fired; fire, a cloud of smoke and soot, and particles of gunpowder. Brundage testified that the deposit made by these gunshot residue materials should be the focus of a forensic examination. After Brundage finished explaining to the jury what the photograph depicts, Hawn objected, whereupon the court barred any further testimony "beyond the scope of rebuttal."
Generally, evidence which does not contradict or refute evidence presented by the opposing party but rather is merely cumulative to evidence presented during the case-in-chief is not proper rebuttal evidence. State v. Wood (June 21, 1996), Portage App. No. 95-8-0009, unreported. Where, however, testimony by a rebuttal witness for the State contradicts the defense, the mere fact that the testimony also bolsters the State's case-in-chief does not render it inappropriate. State v. Owens (Nov. 30, 1994), Montgomery App. No. 14068, unreported.
The State argues that in the course of explaining why it is not proper protocol for firearms examiners to utilize bullet hole size alone to determine how far a gun is away when fired, as the defense experts did in this case, it was necessary for Brundage to some extent to touch upon gunshot residue in his rebuttal testimony. While that may be true, we conclude that the substantial extent to which Brundage commented upon gunshot residue during his testimony clearly crossed over the line of proper rebuttal.
The high speed photograph that Brundage used dramatically depicts the large amounts of residue materials that are spewed from out of its barrel when a gun is fired. The photograph creates an inference that amounts of this residue may be deposited on articles at various distances from the gun barrel when a gun is fired. The prosecutor's comment upon this photograph in his closing argument, and Brundage's testimony that it is these gunshot residue deposits that one should look for on an article, clearly crossed the line of proper rebuttal testimony and became a mere rehashing of evidence already presented during the State's case-in-chief. The purpose was to bolster the testimony previously given by Chris Monturo. Indeed, Brundage's rebuttal testimony runs more to gunshot residue deposits than it does to bullet hole sizes. This was not proper rebuttal testimony and the trial court abused its discretion in admitting it.
Hawn's sixth assignment of error is well taken and is hereby sustained.
SEVENTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY OVERRULING APPELLANT HAWN'S CRIMINAL RULE 29 MOTIONS FOR ACQUITTAL THEREBY DENYING MR. HAWN HIS RIGHTS AS GUARANTEED TO HIM BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION.
At the close of the State's case, at the close of all the evidence, and again in a post-verdict motion, Stephen Hawn moved for acquittal pursuant to Crim.R. 29. The trial court overruled each of these motions. Hawn now argues that the trial court erred in not granting his motions for acquittal because the evidence presented was insufficient to convict him of purposely causing the death of Sue Jack in violation of R.C. 2903.02.
When considering a Crim.R. 29 motion for acquittal, the trial court must construe the evidence in a light most favorable to the State and determine whether reasonable minds could reach different conclusions on whether the evidence proves each element of the offense charged beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. The motion will be granted only if reasonable minds could only conclude that the evidence fails to p
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