State v. Nowlin , 2012 Ohio 4923 ( 2012 )

[Cite as State v. Nowlin, 2012-Ohio-4923.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. CT2012-0015
:
:
TERRELL M. NOWLIN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum
County Court of Common Pleas Case
No. CR2010-0155
JUDGMENT: Affirmed In Part, Reversed and
Remanded In Part
DATE OF JUDGMENT ENTRY: October 19, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX DAVID SAMS
ROBERT L. SMITH P.O. Box 40
Assistant Prosecuting Attorney West Jefferson, Ohio 43162
27 North Fifth Street
Zanesville, Ohio 43701
[Cite as State v. Nowlin, 2012-Ohio-4923.]
Edwards, J.
{¶1} Appellant, Terrell Nowlin, appeals a judgment of the Muskingum County
Common Pleas Court convicting him of conspiracy to commit aggravated murder (R.C.
2923.01(A)(1)), conspiracy to commit kidnapping (R.C. 2923.01(A)(1)), kidnapping with
a firearm specification (R.C. 2905.01(A)(2), R.C. 2941.145), aggravated murder with a
firearm specification (R.C. 2903.01(A), R.C. 2941.145), three counts of tampering with
evidence (R.C. 2921.12(A)(1)), and gross abuse of a corpse (R.C. 2927.01(B)).
Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Heather Nowlin is the mother of a daughter, Markia, born December 13,
2008. Heather and appellant believed that appellant was the father of Markia. When
Markia was an infant, she began to experience health problems. Doctors thought she
might have sickle cell anemia and testing was performed to determine with certainty the
identity of Markia’s father. DNA testing proved that Tyler Hardin, not appellant, was the
father of the child. Appellant became very upset over this turn of events.
{¶3} Heather and appellant contacted an attorney, who told them that the only
way for appellant to be Markia’s father was for appellant to adopt her, and the only way
he could adopt Markia was if he married Heather and Tyler signed adoption papers. In
order to make adoption of Markia possible, appellant married Heather in 2009.
However, they did not live together as husband and wife. Appellant stayed one or two
nights a week in Zanesville with his father and his father’s girlfriend and the remainder
of the week he lived in Columbus with his long-time girlfriend, Savanna, where he had
Muskingum County App. Case No. CT2012-0015 3
resided since 2006. Savanna knew about Markia, but did not know appellant had
married Heather in order to adopt Markia.
{¶4} Heather took adoption papers to Tyler’s house and told him if he signed
them, he would not have to pay child support. He signed the papers, but withdrew his
consent to the adoption when he discovered they were in fact adoption papers. Tyler
filed an action to receive visitation with Markia and began seeing Markia. Appellant was
not happy that Tyler was permitted to visit Markia.
{¶5} On July 10, 2010, Heather and her friend Alysia picked up Markia from
visitation with Tyler at the home of a girl named Ta Ta. Heather told Tyler they were
going swimming, and he asked if he could go along.
{¶6} Heather went home and had a conversation by telephone with appellant.
She then met appellant in a driveway, where she noticed that appellant had a gun on
his lap. They made plans for Heather to take Tyler to property owned by Paul Tipton.
{¶7} Heather and Alysia went to pick up Tyler to go swimming. Markia was
with them. Appellant followed their vehicle to the Tipton property. Appellant was
carrying a bucket when he got out of the car. He put down the bucket, put a gun to the
car door and told Heather to get out of the car. Appellant opened the trunk of the car
and retrieved a shovel.
{¶8} Tyler got out of the car and ran. Appellant threw down the shovel and
tackled Tyler, telling Heather to leave. Heather, Alysia and Markia drove away with the
doors and trunk of the car still open.
{¶9} Later that day, appellant met Heather at her home. He put a gun to her
head and told her if he goes down, she is going with him. He told her that Tyler
Muskingum County App. Case No. CT2012-0015 4
wouldn’t shut up so he shot him in the face. Tyler grabbed his face and “started crying
like a little bitch.” Tr. 676. Tyler got up and ran. Appellant shot him in the back and
then suffocated him under water. Appellant told Heather if she told anyone, he would
kill her. Because appellant had hit her in the past, she believed he would kill her.
{¶10} The next morning, Heather and appellant returned to the Tipton property
to dispose of Tyler’s body. Appellant went into the woods and came out telling Heather
there was no body. He then told Heather he was “just playin’.” They put trash bags on
their hands and feet with duct tape and proceeded to the place where Tyler’s body was
laying in water in a culvert. They drug Tyler’s body to a previously dug hole and put the
body in the hole. Heather then returned to the car with Markia to wait for appellant.
{¶11} Appellant returned to the car. They placed the clothes they were wearing
in a dumpster and then went to Burger King. They returned to Heather’s apartment,
where appellant took a nap. When he left, he took Markia with him, along with a rag
and a bottle of bleach. He told Heather that if she told anybody, he was going to kill her,
and reminded her that he had Markia with him.
{¶12} On July 17, 2010, Kim Saunders called the Zanesville police to report that
her son Tyler Hardin had been killed and was buried in a shallow grave on a farm. She
told police that Tyler had problems with Heather and appellant concerning Markia.
Richard McCoy, Heather’s father, was incarcerated in the county jail. Police spoke to
McCoy, who told them that while on work release he saw his wife, who told him Heather
may know something about Tyler going missing. Police allowed McCoy to leave prison
in order to talk to Heather. He brought Heather to the police department 50 minutes
later.
Muskingum County App. Case No. CT2012-0015 5
{¶13} Heather told police where Tyler was buried. Police found the body in a
shallow grave on Paul Tipton’s property. They saw a red shirt and black pants sticking
out of the grave, as well as legs which animals had been eating. An autopsy revealed
that Tyler Hardin had been shot once in the face, a non-fatal wound, and once fatally in
the back.
{¶14} Appellant was arrested and interviewed in Columbus on July 18, 2010.
He told police that Savanna had his gun and gave them her telephone number. Before
they could use this information, other officers interviewed Savanna and she told them
appellant asked her to put his gun in her father’s safe. The gun which was used in the
murder of Hardin was retrieved from Savanna’s parents’ home. Police interviewed
appellant on July 20, 2010 and July 26, 2010, but he provided no information
concerning the murder of Tyler Hardin.
{¶15} Heather agreed to testify against appellant and pleaded guilty to
conspiracy to aggravated murder, kidnapping and tampering with evidence. She was
sentenced to 25 years incarceration.
{¶16} Appellant was charged with one count of conspiracy to commit aggravated
murder, one count of conspiracy to commit kidnapping, one count of kidnapping with a
firearm specification, one count of aggravated murder with a firearm specification, four
counts of tampering with evidence and one count of gross abuse of a corpse. The case
proceeded to jury trial in the Muskingum County Common Pleas Court. He was
convicted on all charges except one count of tampering with evidence.
{¶17} The trial court merged the conspiracy to commit aggravated murder
conviction with the aggravated murder conviction, merged the conspiracy to commit
Muskingum County App. Case No. CT2012-0015 6
kidnapping conviction with the kidnapping conviction, and merged one count of
tampering with evidence with abuse of a corpse. The State elected to proceed under
the aggravated murder, kidnapping and tampering with evidence convictions. The trial
court sentenced appellant to a term of eleven years incarceration for kidnapping, life
without the possibility of parole for aggravated murder, three years incarceration for the
firearm specification for aggravated murder, and 36 months on each of the three
tampering with evidence convictions. The court ordered that all terms be served
consecutively. The court later issued a nunc pro tunc entry to clarify that the court had
merged the firearm specifications for kidnapping and aggravated murder.
{¶18} Appellant assigns five errors on appeal:
{¶19} “I. THE TRIAL COURT FAILED TO SUPPRESS STATEMENTS OF
DEFENDANT-APPELLANT OBTAINED BY LAW ENFORCEMENT CONTRARY TO
HIS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
{¶20} “II. THE DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY
THE ADMISSION OF PRIVILEGED ACTS AND COMMUNICATIONS CONTRARY TO
OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶21} “III. THE DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY
INSUFFICIENT JURY INSTRUCTIONS CONTRARY TO OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS.
{¶22} “IV. THE JUDGMENT IS BASED ON INSUFFICIENT EVIDENCE AND IS
OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE CONTRARY
TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
Muskingum County App. Case No. CT2012-0015 7
{¶23} ‘V. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
I
{¶24} In his first assignment of error, appellant argues that the court erred in
failing to suppress statements he made to police on July 18, 2010, July 20, 2010, and
July 26, 2010. As to the July 18 statement, he argues that he indicated that he was
done talking but police continued to question him, and he made incriminating
statements concerning the location of his gun. As to the July 20 and July 26
statements, he argues that he had asserted his right to counsel at his initial court
appearance on July 20. He argues that his first statement was taken in violation of the
Fifth Amendment, while his second two statements were taken in violation of his Sixth
Amendment right to counsel.
{¶25} On July 18, 2010, police interviewed appellant. At one point in the
questioning, appellant said, “I don’t know what’s going on, I don’t know nothing.’” The
officer asked, “You done talking?” Appellant replied, “Yeah.” Police then asked
appellant if he had a gun. He responded that his “girl” had it, and gave them Savanna
Cooper’s telephone number.
{¶26} Appellant does not argue that he did not validly waive his Miranda rights
prior to the start of the interview. Following a waiver of the right to remain silent, an
assertion of the right to remain silent must be unambiguous to require the police to end
the interrogation. Berghuis v. Thompkins, 130 S.Ct. 2250, 2260 (2010). The United
States Supreme Court noted that Thompkins did not state that he wished to remain
Muskingum County App. Case No. CT2012-0015 8
silent or that he did not wish to talk to police, either of which would have been an
unambiguous exertion of his right to remain silent. Id.{¶27} The Ohio Supreme Court has also held that an exertion of the right to
remain silent must be unequivocal:
{¶28} “Although a suspect “need not ‘speak with the discrimination of an Oxford
don,’” Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371, quoting id. at 476,
114 S.Ct. at 2364, 129 L.Ed.2d at 382 (Souter, J., concurring in judgment), a suspect
“must articulate his or her desire to remain silent or cut off questioning ‘sufficiently
clearly that a reasonable police officer in the circumstances would understand the
statement to be’ an invocation of the right to remain silent.” State v. Ross (1996), 203
Wis.2d 66, 78, 552 N.W.2d 428, 433, quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2355,
129 L.Ed.2d at 371; see, also, United States v. Mikell (C.A.11, 1996), 102 F.3d 470,
476. If the suspect says something that may or may not be an invocation of the right,
police may continue to question him; they need not treat the ambiguous statement as
an invocation or try to clear up the ambiguity. See Ross, 203 Wis.2d at 75–76, 552
N.W.2d at 432, and fn. 4 (citing cases); State v. Owen (Fla.1997), 696 So.2d 715, 717–
718; State v. King (Me.1998), 708 A.2d 1014, 1017. Thus, appellant's claim turns on
whether his statement was an unambiguous invocation of his right to stop talking.”
State v. Murphy, 91 Ohio St. 3d 516, 520, 747 N.E.2d 765, 2001-Ohio-112.
{¶29} In Murphy, the court held that the defendant’s statement, “I’m ready to quit
talking now and I’m ready to go home, too,” was not an unambiguous invocation of his
right to remain silent. Id.Muskingum County App. Case No. CT2012-0015 9
{¶30} In the instant case, appellant did not unambiguously invoke his right to
remain silent. He initially expressed confusion about what the officers were discussing,
indicating that he didn’t know anything. He only stated that he was “done talking” in
response to the officer’s question. The officer asked if he was done talking in response
to appellant’s claims that he knew nothing, and appellant responded, “yeah.” The
record does not reflect an unambiguous assertion of his right to remain silence.
{¶31} Even if questioning should have stopped at that point, the gun would still
be admissible as it was obtained from an independent source. The exclusionary rule
does not apply if the connection between the illegal police conduct and the discovery
and seizure of the evidence is so attenuated as to dissipate the taint, as where the
police have an independent source for discovery of the evidence. State v. Carter, 69
Ohio St.3d 57, 67, 630 N.E.2d 555, 1994-Ohio-343, citing Silverthorne Lumber Co., Inc.
v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
{¶32} The evidence presented at the suppression hearing demonstrated that
police obtained the gun independently of their tip from appellant. At the same time
appellant was being interviewed by police, other officers went to the residence appellant
shared with Savanna Cooper. They had no contact with the officers interviewing
appellant, and obtained no information from them concerning a gun. When officers
asked Savanna if appellant owned a firearm, she responded that he did, and it was at
her dad’s house. Savanna’s dad arrived and took police to retrieve the gun. Therefore,
police discovered the gun from an independent source.
{¶33} Appellant next argues that police should not have questioned him on July
20 and July 26 because he had asserted his right to counsel at his initial court
Muskingum County App. Case No. CT2012-0015 10
appearance on July 20. Appellant does not argue that he did not validly waive his
Miranda rights at either interview, and in fact stated at the suppression hearing that the
waivers were not the issue, and his challenge was solely to the improper nature of the
interrogation after he requested appointed counsel at his initial court appearance earlier
on July 20.
{¶34} At his initial appearance, when advised that he had the right to an
appointed attorney if he could not afford one and that he had a right to a preliminary
hearing, appellant asked to have an attorney appointed and asked for a preliminary
hearing. Supp. Tr. 41-42. The court then explained the procedure for filling out the
paperwork to have counsel appointed.
{¶35} The United States Supreme Court expressly rejected appellant’s argument
in Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176 (1990). In Harvey, the defendant
had not merely expressed a desire to have counsel appointed, but had in fact obtained
counsel. The United States Supreme Court held that nothing in the Sixth Amendment
prevents a suspect represented by counsel from voluntary choosing to speak with police
in the absence of an attorney. “Although a defendant may sometimes later regret his
decision to speak with police, the Sixth Amendment does not disable a criminal
defendant from exercising his free will. To hold that a defendant is inherently incapable
of relinquishing his right to counsel once it is invoked would be ‘to imprison a man in his
privileges and call it the Constitution.’” Id. at 1182.
{¶36} Appellant therefore could validly waive his right to counsel for questioning
by police following a request for court-appointed counsel at an earlier court appearance.
The record reflects that on July 20, 2010 and July 26, 2010, appellant was read his
Muskingum County App. Case No. CT2012-0015 11
Miranda rights and waived them, and appellant does not challenge the validity of these
waivers. Accordingly, the court did not err in failing to suppress the statements made by
appellant on July 20 and July 26, 2010.
{¶37} The first assignment of error is overruled.
II
{¶38} In his second assignment of error, appellant argues that the court erred in
admitting Heather Knowlin’s testimony, as her testimony was barred by the spousal
privilege. In criminal cases, spousal privilege is governed by R.C. 2945.42, which
provides in pertinent part:
{¶39} “Husband or wife shall not testify concerning a communication made by
one to the other, or act done by either in the presence of the other, during coverture,
unless the communication was made or act done in the known presence or hearing of a
third person competent to be a witness, or in case of personal injury by either the
husband or wife to the other, or rape or the former offense of felonious sexual
penetration in a case in which the offense can be committed against a spouse, or
bigamy, or failure to provide for, or neglect or cruelty of either to their children under
eighteen years of age or their physically or mentally handicapped child under twenty-
one years of age, violation of a protection order or consent agreement, or neglect or
abandonment of a spouse under a provision of those sections. The presence or
whereabouts of the husband or wife is not an act under this section. The rule is the
same if the marital relation has ceased to exist.”
{¶40} The Sixth District recently summarized the law concerning the spousal
privilege in State v. Greaves, 6th Dist. No. H-11-012, 2012-Ohio-1989, ¶17-19:
Muskingum County App. Case No. CT2012-0015 12
{¶41} “The general thrust of judicial policy is to construe statutory privileges
narrowly: ‘[T]hey impede the search for truth and contravene the principle that the public
has a right to everyone's evidence.’ State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-
6179, 920 N.E.2d 104, ¶ 121; State v. Bryant, 56 Ohio App.3d 20, 22, 564 N.E.2d 709(6th Dist. 1988). As we have previously observed:
{¶42} “‘Assertion of [an evidentiary] privilege serves to remove from the trier of
fact otherwise relevant, reliable and competent evidence. Because the privilege
operates to the detriment of the truth-seeking process, it has been viewed as a
pernicious anomaly in our system of evidence. * * * [T]he privilege has come to mean
little but the suppression of useful truth[.]’ (Internal citations omitted.) State v. Dress, 10
Ohio App.3d 258, 261, 461 N.E.2d 1312 (6th Dist. 1982), overruled on other grounds,
State v. Smorgala, 50 Ohio St.3d 222, 553 N.E.2d 672 (1990).
{¶43} “The right to invoke the spousal privilege, where it exists, belongs to the
nontestifying spouse. Perez at ¶ 112. To be privileged, however, the communication at
issue must be ‘confidential.’ State v. Rahman, 23 Ohio St.3d 146, 149, 492 N.E.2d 401(1986). In assessing whether a communication was confidential, courts look to the
language used, the nature of the message, the circumstances under which it was
delivered, and other relevant facts. Bryant, supra, at 22, 564 N.E.2d 709; Portsmouth v.
Wrage, 4th Dist. No. 08CA3237, 2009-Ohio-3390, 2009 WL 2003386, ¶ 21; State v.
Jackson, 12th Dist. No. CA2011–01–001, 2011-Ohio-5593, 2011 WL 5146038, ¶ 30.
{¶44} “Verbal threats and violent acts between spouses are not marital
‘confidences’ which the privilege was intended to shield from courtroom disclosure. The
ostensible purpose of the privilege, in protecting intimate exchanges, is to promote
Muskingum County App. Case No. CT2012-0015 13
‘marital peace and harmony.’ Mowery at 198, 438 N.E.2d 897. But as Ohio courts have
long recognized, that purpose is wholly lost where one spouse has threatened or
physically assaulted the other. See Bryant at 21–22, 564 N.E.2d 709 and Wrage at ¶
21, both citing State v. Antill, 176 Ohio St. 61, 64, 197 N.E.2d 548 (1964). Such
threatening or turbulent behavior is incompatible with the traditional premise of inter-
spousal harmony out of which the confidences of marriage are imagined to flow. Antill at
64, 197 N.E.2d 548; see also Mowery at 198–199, 438 N.E.2d 897.”
{¶45} In order for the spouse to claim privilege, the communication must not only
have been made during the marriage, but the spouses must be living as husband and
wife. Bentleyville v. Pisani (1995), 100 Ohio App.3d 515, 654 N.E.2d 394. “Where
evidence shows that incidents of coverture have been relinquished, no legitimate
purpose would be served by the exclusion of spousal testimony.” Id. at 518, 654 N.E.2d
at 396.
{¶46} Further, the Ohio Supreme Court has recognized that when one spouse is
willing to testify against the other in a criminal proceeding, there is probably little in the
way of marital harmony for the privilege to preserve, and a rule of evidence that permits
an accused to prevent adverse spousal testimony seems far more likely to frustrate
justice than to foster family peace. State v. Mowery, 1 Ohio St.3d 192, 198, 438 N.E.2d
897 (1982), quoting Trammel v. United States, 445 U.S. 40, 100 S.Ct.906 (1980).
{¶47} In the instant case, the evidence reflects that although the parties were
married and had a child together in March of 2010, they were not living in coverture as
contemplated by R.C. 2945.42. Heather testified that they got married on August 25,
2009, so appellant could adopt Markia. Alysia Harris testified that appellant and
Muskingum County App. Case No. CT2012-0015 14
Heather never lived together, were not around each other much, and they mostly talked
on the phone and texted each other. Mindi Mayle, appellant’s father’s girlfriend, testified
that appellant stayed with her one or two nights a week, and when he wasn’t living with
her, he lived in Columbus with Savanna Cooper. Savanna Cooper testified that she
began dating appellant on July 16, 2004, they began living together in October of 2006,
and moved to a new residence together in November, 2009. Savanna knew about
Markia and appellant brought her to Columbus with him from time to time, but she was
unaware that appellant had married Heather until July of 2010. Because the parties
were not living in coverture and there was no purpose in promoting spousal harmony
between the parties, the court did not err in admitting Heather’s testimony.
{¶48} Further, the court was careful to limit Heather’s testimony concerning
communications made by appellant to those made in front of a third person competent
to be a witness, generally Alysia, who was present throughout the day in question.
While no one was present when appellant put a gun to Heather’s head and confessed
to killing Tyler, and no one was present when they disposed of the body at the Tipton
property together except Markia who was incompetent to be a witness, the purpose of
the privilege in promoting spousal harmony was wholly lost because appellant pointed a
gun at Heather and threatened to kill her.
{¶49} In addition, the Ohio Supreme Court has held that if the accused
committed the acts in the known presence of a third person, he may not assert the
spousal privilege even if that third person is unavailable to testify and was the victim of
the accused’s murder charge. State v. Adamson, 72 Ohio St.3d 431, 433-434, 650
N.E.2d 875, 1995-Ohio-199. Therefore, because appellant committed the shooting in
Muskingum County App. Case No. CT2012-0015 15
Tyler’s presence, even though Tyler is unavailable to testify, he cannot assert the
spousal privilege to prevent Heather from testifying about the shooting.
{¶50} The second assignment of error is overruled.
III
{¶51} In his third assignment of error, appellant argues that the court erred in
failing to instruct the jury on accomplice testimony, specifically the testimony of Heather
Nowlin, as required by R.C. 2923.03(D):
{¶52} “(D) If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with complicity in the commission
of or an attempt to commit an offense, an attempt to commit an offense, or an offense,
the court, when it charges the jury, shall state substantially the following:
{¶53} “‘The testimony of an accomplice does not become inadmissible because
of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity
of a witness may affect his credibility and make his testimony subject to grave
suspicion, and require that it be weighed with great caution.
{¶54} “‘It is for you, as jurors, in the light of all the facts presented to you from
the witness stand, to evaluate such testimony and to determine its quality and worth or
its lack of quality and worth.’”
{¶55} Appellant did not object to the court’s failure to give this instruction, nor did
he request this instruction. Pursuant to Crim. R. 30(A), a party may not assign as error
on appeal the failure to give an instruction unless the party objects before the jury
retires to consider its verdict. Because appellant failed to object, we must find plain
error in order to reverse. In order to prevail under a plain error analysis, appellant bears
Muskingum County App. Case No. CT2012-0015 16
the burden of demonstrating that the outcome of the trial clearly would have been
different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978);
Notice of plain error “is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph
three of the syllabus.
{¶56} To determine whether a trial court's failure to give the accomplice
instruction constitutes plain error, Ohio courts look to three factors: (1) whether other
evidence at trial corroborated the alleged accomplice's testimony; (2) whether the jury
was aware from the alleged accomplice's testimony that he benefited from agreeing to
testify against the defendant; and/or (3) whether the court instructed the jury generally
regarding its duty to evaluate the credibility of the witnesses and its province to
determine what testimony is worthy of belief. State v. Jennings, 10th Dist. Nos. 09AP-70,
09AP-75, 2009-Ohio-6840, ¶67, citing State v. Woodson, 10th Dist. No. 03AP-736,
2004-Ohio-5713, ¶ 18.
{¶57} Heather’s testimony was corroborated by other evidence. Alysia Harris
testified that about a month before Tyler’s death, Heather called and asked for a gun
because appellant needed one. She testified that before Tyler’s death, appellant asked
her and her boyfriend at the time to lure Tyler out of his house so appellant could beat
him up. She corroborated Heather’s testimony about meeting appellant in a driveway
before they took Tyler to the Tipton farm, and she heard appellant say, “Can you get
him to the spot?” Tr. 267. She was in the car when they took Tyler to the Tipton farm,
saw appellant grab a shovel from the trunk of the car, toss it aside, and tackle Tyler as
he tried to run away. Karol Peairs, who was picking green beans at a property
Muskingum County App. Case No. CT2012-0015 17
neighboring Paul Tipton’s property, described a car matching the description of
appellant’s car on the Tipton property on July 10, and identified appellant in court as
one of two men she saw sitting on a picnic table on the property that day. She further
testified that as she was picking green beans, she heard two or three gunshots. Troy
Peairs, who was picking green beans with his mother Karol, saw appellant on the Tipton
property on July 10, 2010. Paul Tipton testified that he found a shovel on his property
and that appellant had previously conducted target practice on the property using a
small caliber handgun. Police found the body where Heather told them they would find
the body, and the body had two gunshot wounds as described by Heather: one in the
face and one in the back. Further, forensic evidence demonstrated that spent shell
casings and bullets recovered from the crime scene were fired by appellant’s gun.
{¶58} The jury was made aware at the beginning of Heather’s testimony that she
pleaded guilty to conspiracy to aggravated murder, kidnapping and tampering with
evidence in exchange for a recommended sentence of 25 years and her agreement to
cooperate in the prosecution of appellant and to testify against him in court. Further, the
trial court instructed the jury regarding its duty to evaluate the credibility of witnesses.
Tr. 921-922.
{¶59} The court’s failure to instruct the jury concerning accomplice testimony
was not plain error in the instant case. The third assignment of error is overruled.
IV
{¶60} In his fourth assignment of error, appellant argues that if the court erred in
admitting the testimony of Heather Nowlin as discussed in his second assignment of
error, the judgment of conviction is against the manifest weight and sufficiency of the
Muskingum County App. Case No. CT2012-0015 18
evidence. As we have found in the second assignment of error, that the trial court did
not err in admitting her testimony, this assignment of error is without merit. Appellant
makes no argument that if Heather’s testimony was properly admitted, the evidence did
not support conviction.
{¶61} The fourth assignment of error is overruled.
V
{¶62} In his final assignment of error, appellant argues that the court erred in
sentencing him consecutively, as consecutive sentences are barred pursuant to R.C.
2929.41(A).
{¶63} Appellant was sentenced on January 30, 2012, pursuant to the newly
enacted House Bill 86. 2011 Am. Sub. H.B. No. 86, which became effective on
September 30, 2011, revived the language provided in former R.C. 2929.14(E) and
moved it to R.C. 2929.14(C)(4). The revisions to the felony sentencing statutes under
2011 Am. Sub. H.B. No. 86 now require a trial court to make specific findings when
imposing consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:
{¶64} (4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of the following:
{¶65} “(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
Muskingum County App. Case No. CT2012-0015 19
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶66} “(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶67} “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.” (Emphasis added).
{¶68} In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), Ohio St.3d , Slip
Opinion No. 2010-Ohio-6320.” Thus, it is the legislature's intent that courts interpret the
language in R.C. 2929.14(C)(4) in the same manner as the courts did prior to State v.
Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶69} The First District Court of Appeals has observed, the consecutive-
sentence findings required by R.C. 2929.14(C) are not the same as those required by
former R.C. 2929.19(B)(2), which provided that the trial court “shall impose a sentence
Muskingum County App. Case No. CT2012-0015 20
and shall make a finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences .” (Emphasis added.) See State v. Comer, 99 Ohio
St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 14–16. In 2003, the Ohio Supreme
Court held that the requirement that a trial court give its reasons for selecting
consecutive sentences was “separate and distinct from the duty to make the findings,”
and it imposed an obligation on trial courts to articulate the reasons supporting their
findings at the sentencing hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's
obligation to “give its reasons” is now gone from the sentencing statutes. Gone with it,
we hold, is the requirement that the trial court articulate and justify its findings at the
sentencing hearing. A trial court is free to do so, of course. But where, as here, there is
no statutory requirement that the trial court articulate its reasons, it does not commit
reversible error if it fails to do so, as long as it has made the required findings. See
Phillips, 1st Dist. No. C–960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605. State
v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord, State
v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.
{¶70} The trial court is not required to recite any “magic” or “talismanic” words
when imposing consecutive sentences provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004-
Ohio-3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶ 22;
An appellate court may only sustain an assignment of error challenging the imposition of
consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment
was clearly and convincingly contrary to law. R.C. 2953.08(G).
Muskingum County App. Case No. CT2012-0015 21
{¶71} Contra to appellant’s argument, the trial court could impose consecutive
sentences in the instant case upon the making of the findings required by R.C.
2929.14(C)(4). However, a review of the judgment of sentence and the sentencing
transcript reveals that the trial court did not make the required findings to impose
consecutive sentences. The fifth assignment of error is sustained.
{¶72} The judgment of the Muskingum County Common Pleas Court is reversed
solely as to the imposition of consecutive sentences. In all other respects, the judgment
is affirmed. This cause is remanded to that court for resentencing.
By: Edwards, J.
Gwin, P.J. concurs and
Hoffman, J. concurs separately
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JUDGES
JAE/r0821
Muskingum County App. Case No. CT2012-0015 22
Hoffman, J., concurring
{¶73} I concur in the majority’s analysis and disposition of Appellant’s
Assignments of Error I, II, III and IV.
{¶74} I further concur in the majority’s disposition of Appellant’s Assignment of
Error V. I write separately only to state my disagreement with the majority’s conclusion
the trial court is not required to recite any “magic” or “talismanic” words when imposing
consecutive sentences, provided it is “clear from the record that the trial court engaged
in the appropriate analysis.”1
{¶75} While I personally find such approach both reasonable and practicable, I
do not believe it satisfies the duty to make the statutorily enumerated “findings” as
recognized and required in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165.
________________________________
HON. WILLIAM B. HOFFMAN
1
Majority opinion at paragraph 70.
[Cite as State v. Nowlin, 2012-Ohio-4923.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TERRELL M. NOWLIN :
:
Defendant-Appellant : CASE NO. CT2012-0015
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Muskingum County Common Pleas Court is reversed solely as to the
imposition of consecutive sentences. In all other respects, the judgment is affirmed.
This cause is remanded to that court for resentencing. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES