State v. Mowery , 2024 Ohio 4507 ( 2024 )

[Cite as State v. Mowery, 2024-Ohio-4507.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-40
:
v. : Trial Court Case No. 22-CR-889
:
ALEX OWEN MOWERY : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on September 13, 2024
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APRIL F. CAMPBELL, Attorney for Appellant
ROBERT C. LOGSDON, Attorney for Appellee
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TUCKER, J.
{¶ 1} Defendant-appellant Alex Owen Mowery appeals from his conviction for
attempted murder after he entered a guilty plea. Mowery argues that the State withheld
evidence prior to a probable cause hearing conducted by the juvenile court, thereby
necessitating reversal of the juvenile court’s decision to bind him over for trial as an adult.
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For the reasons set forth below, we reject this argument and affirm Mowery’s conviction.
I. Factual and Procedural History
{¶ 2} This case arises from a shooting that occurred on August 31, 2022. On that
date, Springfield police were dispatched to the area of Linden Avenue and East Pleasant
Street to meet with the victim; the victim stated that he had been in his vehicle when shots
were fired toward him by individuals in another vehicle. The victim informed police that
he had observed the driver point a handgun out of his window and fire three shots at him
before fleeing the scene.
{¶ 3} Following an investigation, Mowery was identified as the shooter. He was
17 years old when the offenses were committed. Mowery was charged in juvenile court
for offenses that, had he been an adult, would have constituted the crimes of attempted
murder, felonious assault, improper handling of a firearm in a motor vehicle, and
discharging a firearm at or near prohibited premises.
{¶ 4} The State asked the juvenile court to relinquish jurisdiction and bind Mowery
over to the general division of the common pleas court to be tried as an adult. As such,
a probable cause hearing was conducted on November 17, 2022. Of relevance hereto,
when the victim appeared in court to testify, he was wearing jail clothing. The prosecutor
noted the victim’s attire on the record and asked the victim whether he had been
incarcerated at the time of the shooting; the victim replied in the negative. On cross-
examination, defense counsel asked the victim why he was “in stripes,” and the victim
responded that he was in jail at that time for a felony charge of failure to comply with an
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order or signal of a police officer.
{¶ 5} The victim testified that, on the day of the shooting, he had been out driving
when he noticed a red car following him. According to the victim, he was approaching
his sister’s residence when he saw Mowery hold a gun out the driver’s window of the red
car and fire three shots at his vehicle. The victim stopped in his sister’s yard, and the
red car fled the scene. The victim’s sister had observed the shooting and called the
police. The victim observed bullet holes in his taillight, tire, and rear passenger door.
He testified that he knew Mowery as the younger brother of a man with whom the victim
had had previous disputes. The victim testified that he had seen Mowery three or four
times in the past and that he knew him as Alex.
{¶ 6} The victim’s sister testified she was outside her residence when she
observed the victim driving toward her. She also observed a red car chasing her brother
and she heard shots; the red car then sped away.
{¶ 7} Springfield Police Department Detective Ronald Jordan was assigned to
investigate the shooting. Jordan testified that after the victim informed him of the names
of the shooter and the shooter’s older brother, Jordan prepared a photographic array for
identification purposes. Another officer administered the identification process with the
victim, who identified Mowery as the shooter.
{¶ 8} Finally, Springfield Officer Christopher Slusher testified that he took pictures
of the victim’s vehicle after the shooting. The photographs corroborated the victim’s
testimony regarding the damage to his car caused by the shooting. Slusher testified that
one bullet had penetrated the rear door into the cabin of the vehicle, and he was able to
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recover that bullet.
{¶ 9} Following the hearing, the juvenile court found probable cause to believe
Mowery had committed the charged offenses. The court noted that Mowery had been
17 years and seven months old at the time of the offenses, and it concluded that the
transfer to the general division to be tried as an adult was mandatory.
{¶ 10} On December 6, 2022, Mowery was indicted on the charged offenses;
except for improper handling of a firearm, all the offenses included firearm specifications.
Thereafter, Mowery and the State entered into a plea agreement. Mowery pled guilty to
the charge of attempted murder; in exchange, the State dismissed all the other charges
and all the firearm specifications. The trial court sentenced Mowery to an indefinite term
of 8 to 12 years in prison.
{¶ 11} Mowery appeals.
II. Brady Material
{¶ 12} Mowery’s sole assignment of error is as follows:
BECAUSE MOWERY WAS NOT GIVEN BRADY INFORMATION
PRIOR TO HIS BINDOVER PROCEEDING, HIS CONVICTION SHOULD
BE REVERSED.
{¶ 13} Citing Brady v. Maryland, 373 U.S. 83 (1963), Mowery contends that the
State violated his constitutional rights when it failed to inform him prior to the probable
cause bindover hearing that the victim was in jail on a felony charge. He further claims
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that the victim had another felony conviction that was not disclosed by the State.1 Mowery
claims such information was exculpatory and provided a basis for impeaching the victim’s
testimony at the probable cause hearing.
{¶ 14} While not explicitly stated, Mowery appears to attack the jurisdiction of the
general division of the common pleas court by arguing that, if the State had provided the
information about the victim, there would have been no basis for the juvenile court to find
probable cause that Mowery had committed the criminal acts in question and, thus, there
would have been no transfer to the general division.
{¶ 15} In Brady, the United States Supreme Court held that a state violates the
due Process Clause of the Fourteenth Amendment to the United States Constitution by
suppressing evidence favorable to the accused where the evidence is material to guilt or
punishment. Id. at 87. The Ohio Supreme court has held that a juvenile facing a
probable cause hearing is, upon request, entitled to Brady materials from the state.
State v. Iacona, 93 Ohio St.3d 83, 91 (2001).
{¶ 16} To establish a Brady violation, a defendant must demonstrate 1) that the
evidence was favorable to the defendant, because it was either exculpatory or
impeaching, 2) that the evidence was willfully or inadvertently suppressed by the state,
and 3) that the defendant was prejudiced as a result. Strickler v. Greene, 527 U.S. 263,
281-282 (1999). Evidence is material or prejudicial “only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability
1
The record does not include any competent evidence demonstrating that the victim had
another felony conviction.
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sufficient to undermine confidence in the outcome.” State v. Bendolph, 2018-Ohio-1729,
¶ 43 (2d Dist.), citing Iacona at 89.
{¶ 17} First, we note that Mowery’s defense counsel did not object to the alleged
failure to disclose the victim’s incarceration and did not seek a continuance or recess of
the hearing in order to explore the use of this information. Thus, we may infer from
counsel’s decision to proceed with the hearing that she believed either that the
information was not exculpatory or that the juvenile court had been made sufficiently
aware of any impeachment issues relevant to the victim.
{¶ 18} More importantly, we conclude that no Brady violation occurred. Under
Brady, the State has the duty to disclose material evidence in its possession. State v.
Azali, 2023-Ohio-4643, ¶ 72 (8th Dist.), citing State v. Lawson, 64 Ohio St.3d 336, 344.
“Where the state has no control over evidentiary materials, it ‘is incapable of suppressing
them in violation of Brady.’ ” Id., quoting Lawson at 344. See United States v. Delgado,
350 F.3d 520, 527 (6th Cir. 2003), quoting Coe v. Bell, 161 F.3d 321, 344 (6th Cir. 1998)
(“Brady does not apply to materials that are not ‘wholly within the control of the
prosecution.’ ”).
{¶ 19} The information the prosecution was alleged to have suppressed -- the fact
that the victim was in jail on felony charges -- was publicly available and not within the
control of the prosecutor. Thus, there was no need to require the State to “disclose”
material that was readily available to the defense.
{¶ 20} Because we find no Brady violation, we find Mowery’s argument lacks merit.
Accordingly, the sole assignment of error is overruled.
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III. Conclusion
{¶ 21} The judgment of the court is affirmed.
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WELBAUM, J. and LEWIS, J., concur.