State v. Feller , 2012 Ohio 6016 ( 2012 )

[Cite as State v. Feller, 2012-Ohio-6016.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-110775
C-110776
Plaintiff-Appellee, : TRIAL NOS. B-1105258
B-1002708-B
vs. :
O P I N I O N.
RILEY FELLER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed as Modified
Date of Judgment Entry on Appeal: December 21, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings
and Scott M. Heenan, Assistant Prosecuting Attorneys, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Judge.
{¶1} Defendant-appellant Riley Feller appeals from the trial court’s
judgments convicting him of felonious assault, two counts of reckless homicide, and
having a weapon while under a disability. We affirm Feller’s convictions, but we
modify in part the sentence imposed for the offense of felonious assault.
Factual Background
{¶2} In the case numbered B-1002708-B, Feller pled no contest to felonious
assault and was found guilty by the trial court. The underlying facts of that crime are
not relevant to this appeal, but Feller’s conviction stemmed from his role in the
beating of a homeless man. Feller was released on bond pending sentencing in that
case. While out on bond, Feller committed the following actions that led to him
being charged with two counts of reckless homicide and having a weapon while
under a disability in the case numbered B-1105258.1
{¶3} On January 6, 2011, Feller had spent the afternoon and early evening
drinking at his home with his girlfriend, Athene Nefos, and his close friend Michael
Hesson. Following an argument with Nefos, Feller left with Hesson, and the two
continued their drinking at the apartment shared by Hesson and his girlfriend,
Janice Svajda. Feller, a veteran of the United States Army who had been trained in
the use of the weapons, had taken a handgun from his apartment to Hesson’s. While
he and Hesson were drinking, Feller took apart the handgun. The weapon had been
double feeding, and Feller attempted to fix the malfunction. He continued to tinker
1 B-1105258 and B-1002708-B, along with their corresponding appellate cases, have been
consolidated for purposes of oral argument and decision by this court. But the cases were not
consolidated for briefing, and Feller has filed a separate appellate brief in each case.
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OHIO FIRST DISTRICT COURT OF APPEALS
with the handgun after Svajda returned home, and he ignored requests from his
friends to remove the bullets from the weapon as he “messed with” it. As Feller
attempted to fix the handgun, it discharged and struck Svajda in the chest. Svajda
had been pregnant, and both she and her unborn child died from the resulting
injuries.
Speedy Trial
{¶4} In his first assignment of error in the appeal numbered C-110775,
Feller challenges his conviction for the reckless homicide terminating Svajda’s
pregnancy on speedy trial grounds.
{¶5} Feller was indicted for this charge on August 16, 2011. But he contends
that the charge dated back to an earlier indictment, and that any time waivers
executed under the earlier indictment were inapplicable to this charge. Feller’s
argument is not demonstrated in the record.
{¶6} The record before this court contains an indictment issued on August
16, 2011. Feller executed a waiver of time for speedy trial purposes on September 7,
2011. And his jury trial began on October 24, 2011. Based on the record before this
court, Feller was tried for the reckless homicide terminating Svajda’s pregnancy
within the time period set forth in R.C. 2945.71. Feller’s assignment of error is
overruled.
Witness Demonstration
{¶7} In his second assignment of error in the appeal numbered C-110775,
Feller argues that the trial court violated his right to present a proper defense when it
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OHIO FIRST DISTRICT COURT OF APPEALS
denied his request to demonstrate, using a gun and dummy bullets, his exact
movements at the time that Svajda was shot.
{¶8} A trial court has broad discretion to control the proceedings in its
courtroom. State v. Brewster, 1st Dist. Nos. C-030024 and C-030025, 2004-Ohio-
2993, ¶ 70. The trial court likewise has discretionary control over the admission and
exclusion of evidence. State v. Vanover, 1st Dist. No. C-990104, 2000 Ohio App.
LEXIS 4469, *9 (Sep. 29, 2000). No abuse of discretion occurred in the trial court’s
denial of Feller’s request. The trial court was rightfully concerned about safety issues
stemming from the use of a weapon and any type of bullets in its courtroom. And
Feller had previously demonstrated to the jury various movements and actions that
he had taken with the weapon prior to the shooting, so he suffered no prejudice as a
result of the trial court’s denial. Feller’s assignment of error is overruled.
Jury Instructions
{¶9} In his third assignment of error in the appeal numbered C-110775,
Feller argues that the trial court improperly instructed the jury on the charge of
having a weapon while under a disability.
{¶10} With respect to this charge, the trial court instructed the jury that
[t]he defendant is charged with having weapons while
under disability. Before you can find the defendant
guilty, you must find beyond a reasonable doubt that on
or about the sixth day of January, 2011, and in Hamilton
County, Ohio, the defendant knowingly acquired, had,
carried or used a firearm and that the defendant was
under indictment for felonious assault. * * * It is not
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OHIO FIRST DISTRICT COURT OF APPEALS
necessary for the state to prove that the defendant knew
he was under indictment for felonious assault while
possessing a firearm.
Feller argues that the court erred by instructing the jury that the state was not
required to prove a culpable mental state with respect to Feller’s knowledge of his
indictment for felonious assault.
{¶11} State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d
347, is dispositive of Feller’s argument. In Johnson, the court held that
[a] conviction for violation of the offense of having
weapons while under disability as defined by R.C.
2923.13(A)(3) does not require proof of a culpable
mental state for the element that the offender is under
indictment for or has been convicted of any offense
involving the illegal possession, use, sale,
administration, distribution or trafficking in any drug of
abuse.
Id. at paragraph one of the syllabus. Johnson involved a disability for a prior drug
offense under R.C. 2923.13(A)(3). In this case, Feller was under a disability for a
prior indictment for a felony offense of violence under R.C. 2923.13(A)(2). With
respect to the Johnson court’s ultimate holding, the type of disability the defendant
was under is of no import.
{¶12} The Johnson court noted that the General Assembly had chosen to
require a mental state only for the first element of the offense of having weapons
under disability, specifically the possession and/or use of a weapon. Id. at ¶ 42.
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OHIO FIRST DISTRICT COURT OF APPEALS
Consequently, the court found that it did not need to turn to R.C. 2901.21(B), Ohio’s
statutory provision outlining when a mental state should be read into an offense that
does not otherwise specify a degree of culpability. Id. Absent the applicability of
R.C. 2901.21(B), the court held that the state was not required to prove a culpable
mental state for the latter element of R.C. 2923.13(A)(3) pertaining to a prior
indictment or conviction for a drug related offense. Id.
{¶13} R.C. 2923.13(A)(2) and (A)(3) differ only in the specified type of prior
indictment or conviction. We hold that Johnson applies equally to the offense of
having a weapon while under a disability under R.C. 2923.13(A)(2), and that the
state was not required to prove that Feller knew he had been under indictment for
felonious assault.
{¶14} The trial court properly instructed the jury on the offense of having a
weapon while under a disability. Feller’s assignment of error is overruled.
Prosecutorial Misconduct
{¶15} In his fourth assignment of error in the appeal numbered C-110775,
Feller argues that the trial court erred in permitting the prosecutor to conduct an
improper voir dire.
{¶16} Feller objects to the prosecutor’s questions concerning whether the
community had a right to a verdict in its favor. The test for prosecutorial misconduct
is whether the prosecutor’s questions were improper, and, if so, whether the
improper questions prejudicially affected the defendant’s substantial rights. State v.
Glenn, 1st Dist. No. C-090205, 2011-Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio
St.3d 13, 14-15, 470 N.E.2d 883 (1984).
{¶17} The following exchange occurred during voir dire:
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OHIO FIRST DISTRICT COURT OF APPEALS
STATE: If both sides get a fair trial, do the people that live in
Hamilton County have a right to a verdict in their favor?
DEFENSE: Objection, Your Honor. That’s not the law.
STATE: I think, if I’m making my point, is they don’t have a
right to it; they have a right to a fair process.
DEFENSE: I made an objection here.
COURT: It’s overruled.
STATE: I hope you understand what I mean is that if both
sides get a fair trial, the people who live in this community
don’t have a right to a verdict in their favor.
DEFENSE: Objection to ‘the people in the community.’
COURT: Overruled.
STATE: The people who live in the community don’t have a
right to a verdict in their favor; they have a right to a verdict
that is fair to the law and to the facts. Do you know what I am
saying? In other words, just because somebody’s charged with
a crime, that people in this community don’t deserve a verdict
of guilty, okay. And just the same thing with the defendant.
Just because if the defendant gets a fair trial, that doesn’t
entitle him to a not guilty verdict.
{¶18} These comments were not improper. Viewed in context, it is clear that
the prosecutor was attempting to illustrate that both the state and the defendant are
entitled to a fair trial. The trial court did not err in permitting this line of
questioning. Feller’s assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Sufficiency and Weight
{¶19} In his fifth assignment of error in the appeal numbered C-110775,
Feller argues that his convictions for reckless homicide were not supported by
sufficient evidence and were against the manifest weight of the evidence.
{¶20} When determining whether a conviction is supported by sufficient
evidence, this court must view all evidence and reasonable inferences in the light
most favorable to the prosecution and determine whether a rational trier of fact
could have found all the elements of the offense proven beyond a reasonable doubt.
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In
contrast, when reviewing the manifest weight of the evidence, we must weigh the
evidence and consider the credibility of the witnesses to determine whether the trier
of fact lost its way and committed such a manifest miscarriage of justice in finding
the defendant guilty that the convictions must be reversed. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶21} Feller was found guilty of two counts of reckless homicide under R.C.
2903.041(A), which provides that “[n]o person shall recklessly cause the death of
another or the unlawful termination of another’s pregnancy.” Pursuant to R.C.
2901.22(C), “[a] person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to
cause a certain result or is likely to be of a certain nature.” Feller argues that the
shooting of Svajda had been an accident, and that the state failed to prove that he
had acted recklessly.
{¶22} The state presented testimony that Feller had spent the hours prior to
Svajda’s death consuming a large amount of alcohol and that he had attempted to
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OHIO FIRST DISTRICT COURT OF APPEALS
repair a malfunctioning handgun while drinking. Michael Hesson testified that he
had asked Feller to stop tinkering with the weapon, or, at the very least, to remove
the bullets from the weapon if he intended to keep “messing” with it. Feller ignored
both requests and continued to “mess with” the loaded weapon. Hesson further
asked Feller to refrain from pointing the weapon at Svajda. Feller again ignored
Hesson’s request. As he continued to tinker with the weapon, it fired and struck
Svajda. We find that Feller’s attempt to fix the weapon while under the influence of
alcohol, despite requests by his friends for him to stop, demonstrated a heedless
indifference for the consequences of his actions and was sufficient evidence to
establish that he acted recklessly.
{¶23} Feller further argues that the state failed to present any evidence that
he was aware that Svajda had been pregnant at the time of her death. But the state
was not required to prove that Feller had knowledge of the pregnancy. It was solely
required to prove that Svajda had been pregnant, and that Feller had recklessly
caused the unlawful termination of her pregnancy. The state presented testimony
from Hamilton County Deputy Coroner Karen Looman that Svajda had been
pregnant at the time of her death. And we have already determined that the state
presented sufficient evidence that Feller had acted recklessly. Feller’s convictions for
the reckless homicide of Svajda and the reckless homicide of her unborn child were
supported by sufficient evidence.
{¶24} We further find that Feller’s convictions for reckless homicide were not
against the manifest weight of the evidence. Feller admitted that he had shot Svajda,
but testified that the shooting had been an accident. Feller told the jury that he was
an Army veteran and had been extensively trained in the use of weapons. He
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that, in his opinion, his actions in attempting to fix the weapon had not been
unsafe. The jury was in the best position to judge the credibility of the witnesses. It
was entitled to reject Feller’s testimony that he had operated the weapon safely and
to conclude that he had behaved recklessly. This is not the rare case in which the
jury lost its way and created a manifest miscarriage of justice.
{¶25} Feller’s assignment of error is overruled.
Motion to Withdraw Plea
{¶26} In his second assignment of error in the appeal numbered C-110776,
Feller argues that the trial court erred by failing to conduct a hearing on his motion
to withdraw his plea and by denying that motion.
{¶27} After his arrest on the reckless-homicide and having-a-weapon-while-
under-a-disability charges, Feller filed a motion to enforce his plea agreement, or in
the alternative to withdraw his plea to felonious assault, in the case numbered B-
1002708-B. After conducting a hearing on Feller’s motion, the trial court found that
the parties had never entered into a formal plea agreement, and it denied the motion.
{¶28} Feller’s assertion that the trial court failed to hold a hearing on his
motion to withdraw his plea is incorrect. The trial court accorded Feller a hearing on
his motion. At that hearing, Feller elected to argue only the merits of that portion of
his motion concerning enforcement of the plea agreement. The trial court was not
required to accord Feller two separate hearings on each portion of his motion.
{¶29} We further find that the trial court properly denied Feller’s motion to
withdraw his plea. Although a presentence motion to withdraw a plea should be
freely granted, a defendant does not have an absolute right to withdraw a plea prior
to sentencing. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). We will
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OHIO FIRST DISTRICT COURT OF APPEALS
not disturb a trial court’s ruling on a motion to withdraw a plea absent an abuse of
discretion. State v. Andrews, 1st Dist. No. C-110735, 2012-Ohio-4664, ¶ 16. A mere
change of heart on the part of the defendant is not a reasonable ground to support
the withdrawal of a plea. State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
9.
{¶30} Here, the record indicates that Feller’s motion to withdraw his plea
was based on nothing more than a change of heart. Feller failed to cooperate with
the state after being released on bond and he incurred multiple serious new charges.
We find that Feller had entered his plea knowingly, intelligently, and voluntarily, and
that the trial court did not abuse its discretion by denying his motion.
{¶31} Feller’s assignment of error is overruled.
Sentencing
{¶32} In his sixth assignment of error in the appeal numbered C-110775,
Feller argues that the trial court erred in failing to merge his two convictions for
reckless homicide because they were allied offenses of similar import.
{¶33} R.C. 2941.25(A), Ohio’s multiple-count statute, provides that, “[w]here
the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.”
{¶34} Because there were two victims of Feller’s crimes, his convictions were
not allied offenses of similar import and separate sentences were permitted. Feller
argues that Svajda was the victim of both reckless homicide charges because the state
had failed to demonstrate that her unborn child was viable and appropriately
classified as a person under R.C. 2901.01(B)(1)(a). Feller’s argument is flawed. R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2903.041, the reckless homicide statute, protects two categories of victims. The
statute states that “[n]o person shall recklessly cause the death of another or the
unlawful termination of another’s pregnancy.” See R.C. 2903.041(A).
{¶35} The term unlawful termination of another’s pregnancy is defined in
R.C. 2903.09(A) as “causing the death of an unborn member of the species homo
sapiens, who is or was carried in the womb of another, as a result of injuries inflicted
during the period that begins with fertilization and that continues unless and until
live birth occurs.” The General Assembly elected to protect the unborn from the
moment of fertilization, not from a moment of viability. State v. Alfieri, 132 Ohio
App.3d 69, 78, 724 N.E.2d 477 (1st Dist.1998). We have held that criminal liability
may be premised upon the death of a non-viable fetus. Id. at syllabus.
{¶36} Here, although Feller’s offenses arose from a single course of conduct,
each offense involved a separate victim, Svajda and her unborn child. See State v.
Wright, 1st Dist. No. C-080437, 2009-Ohio-5474, ¶ 62, (an unborn child qualified as
a victim separate and apart from its pregnant mother). The two counts of reckless
homicide were not allied offenses of similar import and the trial court properly
imposed separate sentences for these offenses. Feller’s assignment of error is
overruled.
{¶37} In his seventh assignment of error in the appeal numbered C-110775,
Feller argues that the trial court erred in imposing maximum and consecutive
sentences for the two offenses of reckless homicide and having a weapon while under
a disability in the case numbered B-1105258. The trial court imposed a sentence of
three years’ imprisonment for each offense and three years’ imprisonment for an
accompanying weapon specification. It made these sentences consecutive to each
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OHIO FIRST DISTRICT COURT OF APPEALS
other, as well as consecutive to the five year sentence that it had previously imposed
in the case number B-1002708-B. This resulted in an aggregate sentence of 17 years’
imprisonment.
{¶38} When reviewing a sentence imposed by the trial court, we engage in a
two-step analysis. We first determine whether the sentences imposed were clearly
and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, 896 N.E.2d 124, ¶ 14. Here, all sentences imposed fell within the available
statutory ranges. And the trial court made all the required findings pursuant to R.C.
2929.14(C) before making the sentences consecutive. Feller’s sentence was not
contrary to law. We next determine whether the trial court abused its discretion in
the imposition of sentence. Id. at ¶ 19. Feller’s actions resulted in the death of a
young woman and her unborn child. And he committed these crimes while awaiting
sentence on a separate case, after he had been accorded the privilege of being
released on bond. No abuse of discretion occurred in the imposition of sentence in
the case numbered B-1105258. Feller’s assignment of error is overruled.
{¶39} In his first assignment of error in the appeal numbered C-110776,
Feller argues that the trial court erred in making his sentence for felonious assault in
the case numbered B-1002708-B consecutive to a sentence that had not yet been
imposed.
{¶40} The trial court imposed a sentence of five years’ imprisonment for the
offense of felonious assault. The court then made that sentence consecutive to the
sentence that it would later impose in the case numbered B-1105258. Feller argues
that this was error. He is correct. In State v. White, 18 Ohio St.3d 340, 343, 481
N.E.2d 596 (1985), the Ohio Supreme Court held that a trial court had erred by
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OHIO FIRST DISTRICT COURT OF APPEALS
ordering a sentence to run consecutively with a sentence that had not yet been
imposed.
{¶41} At the time of sentencing for the offense of felonious assault in the case
numbered B-1002708-B, the sentence in the case numbered B-1105258 had not yet
been imposed and was not going to be imposed immediately thereafter.
Consequently, the trial court erred by making the sentence imposed for felonious
assault consecutive to that sentence. We modify the sentence imposed for the
offense of felonious assault in the case numbered B-1002708-B and vacate the
language making that sentence consecutive to the sentence imposed in the case
numbered B-1105258. Feller’s overall sentence remains the same, as the trial court
had additionally and appropriately made the same sentences consecutive when
imposing sentence in the case numbered B-1105258. Feller’s assignment of error is
sustained.
Conclusion
{¶42} The trial court’s judgments convicting Feller of felonious assault, two
counts of reckless homicide, and having a weapon while under a disability are
affirmed. We modify the sentence imposed for felonious assault in the case
numbered B-1002708-B and vacate the imposition of consecutive sentences imposed
in that case. The sentences imposed by the trial court are otherwise affirmed.
Judgments affirmed as modified.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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