State v. Campbell , 2019 Ohio 5004 ( 2019 )

[Cite as State v. Campbell, 2019-Ohio-5004.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1289
Appellee Trial Court No. CR0201603375
v.
Terry Campbell DECISION AND JUDGMENT
Appellant Decided: December 6, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Terry Campbell, appeals the judgment of the Lucas County Court
of Common Pleas, convicting him of one count of aggravated murder under R.C.
2903.01(A), with a firearm specification, and sentencing him to life in prison without the
possibility of parole. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} This matter arises from the December 16, 2016 death of appellant’s wife,
C.C. On that day, Toledo police responded to C.C.’s home at 247 Mayberry in Lucas
County, Ohio. When the police arrived, appellant barricaded himself upstairs with the
couple’s infant child. The S.W.A.T. team subsequently stormed the residence, finding
C.C. dead in the kitchen from multiple gunshot wounds. After a lengthy standoff,
appellant surrendered peacefully.
{¶ 3} On December 29, 2016, the Lucas County Grand Jury returned a four-count
indictment against appellant, charging him with one count of aggravated murder based
upon prior calculation and design under R.C. 2903.01(A), one count of aggravated
murder for purposely killing another during the commission of an aggravated burglary
under R.C. 2903.01(B), one count of murder, and one count of aggravated burglary. On
June 1, 2017, appellant withdrew his initial plea of not guilty, and entered a plea of guilty
to one count of aggravated murder. However, a few days later, appellant moved to
withdraw his guilty plea, which the trial court granted.
{¶ 4} Thereafter, appellant filed a motion to suppress any and all evidence
unlawfully seized from C.C.’s home. In particular, appellant sought the suppression of
his wallet and the contents thereof, which included a note that constituted evidence of
appellant’s motive and state of mind regarding the murder of his wife. Appellant argued
that the evidence should be suppressed because the search warrant lacked sufficient
particularity when it described as items to be seized, “any/all other unnamed evidence
2.
related to the death of [C.C.].” In addition, appellant also moved to suppress statements
that he made to the police at the scene while he was barricaded upstairs. Appellant
argued that those statements were the product of a custodial interrogation. After a
hearing, the trial court denied appellant’s motions.
{¶ 5} The matter then proceeded to a four-day jury trial beginning on October 30,
2017. At the trial, the prosecution played the 911 call from C.C., during which she can
be heard pleading for help and explaining that her husband was chasing her with a gun.
She can then be heard begging with appellant for him to leave, and hysterically
screaming “no,” and “please, no.” The phone then disconnects.
{¶ 6} The victim’s father, J.C., testified next. He testified that after the crime
scene had been cleared, he was responsible for cleaning the house. He stated that he
observed multiple bullet holes in the kitchen, and that he spent about half an hour
cleaning up his daughter’s blood. J.C. also testified that the basement of the house was
decorated in a Cleveland Browns theme because appellant was a fan of that football team.
However, despite it being football season, the television and speakers had all been
unhooked, and similarly, the television and speakers upstairs had been disconnected and
packed up.
{¶ 7} The state next called Toledo Police Officer Nathaniel Morrison. Morrison
testified that on December 16, 2016, the 911 call came in at 1:02 a.m., and that he and his
partner responded to the scene by 1:05 a.m. Morrison stated that when they arrived, they
stopped a couple of houses down from 247 Mayberry. As Morrison approached the
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house on foot, he heard a series of three to four gunshots, followed by a short pause of a
couple seconds, then a single gunshot. Upon hearing the gunshots, Morrison took a
defensive position. Approximately 20 seconds after the final gunshot, appellant emerged
from the residence in a tank top and blue boxer shorts. Morrison observed appellant run
towards a car in the street with something in his hand. Once appellant noticed the police
officers, he ran back towards the house. Appellant did not comply with the officers’
commands to stop, but as he was running back towards the house he yelled several times
to the officers to come with him and “come help her.” Morrison testified that another
officer approached the door to the house but was unable to gain entry. At that point, the
officers surrounded the house, and Morrison testified that no one entered or exited the
residence until the S.W.A.T. team went in later in the night.
{¶ 8} The next witness to testify was Mark Johnson, who was assigned to the
video unit of the Toledo Police Department. Johnson authenticated a video recording
taken from appellant’s security cameras, which was then played for the jury. The
recording showed appellant arriving at the residence at approximately 12:43 a.m., fully
clothed and with a winter coat and hat. In the video, appellant approaches the door and
picks up a box that is on the porch. He then uses his keys to open the screen door and
front door. After opening the screen door, appellant sets the box on a chair next to the
door, and the box tips over. Appellant then opens the inside door, and retrieves the box
from the chair, taking the time to pick up the item that had fallen out of it. Appellant then
enters the residence. The whole process took approximately one minute.
4.
{¶ 9} The state then called Toledo Police Officer Jamie Brown. Brown was on
patrol on December 16, 2016, and responded to 247 Mayberry. Brown testified that as he
arrived and was speaking to an officer on the scene, appellant ran out of the house.
Appellant then saw the officers and ran back towards the house, yelling “help her.”
Brown followed appellant to the house, but when he tried to enter the house, the door was
locked. Brown then proceeded to the rear of the house, where he heard items being
pushed up against the back door in an effort to blockade it. Brown testified that after
appellant entered the house, no one else entered or exited until the S.W.A.T. team went
in.
{¶ 10} Sergeant William Shaner testified next. Shaner was the sergeant in charge
of the S.W.A.T. team that responded to the scene. Shaner testified that prior to entry, he
deployed a throw phone—essentially a phone inside of a box mounted with cameras and
a microphone—to establish communication with appellant and to be able to hear and see
what was going on inside of the residence. Through the throw phone, Shaner could hear
an adult male yelling and an infant crying. Shaner also deployed two small robots—each
approximately one foot long by six inches wide and weighing less than five pounds—to
gather visual information on what was occurring inside the house. The second robot was
placed in the kitchen window, and was driven off of the kitchen counter, landing on C.C.
Shaner testified that from the images transmitted by the robot, he could see C.C.’s legs,
knees, and feet, and that she was unresponsive.
5.
{¶ 11} The decision was then made to enter the residence. After securing the first
floor and checking on C.C., the S.W.A.T. team approached the stairs to the second floor
where they believed appellant was located. Shaner testified that as they reached the
stairs, appellant threw a water bottle down as a warning not to try and come up the stairs.
Shaner stopped and identified himself and asked appellant to come down with his hands
up. Appellant responded, “Don’t come up here, don’t come up here, I’ll shoot.”
{¶ 12} Shaner then engaged in a dialogue with appellant. Through the course of
several hours, Shaner attempted to calm appellant down and humanize the situation. As
they were speaking, Shaner conveyed that he knew how things could happen when
people are going through a divorce, and how two people can start in a fight and then one
thing leads to another. Shaner testified that he told appellant, “I know how these things
can happen and, you know, I’m sure you didn’t plan for this to happen.” According to
Shaner, appellant then replied in a very defeated tone, “Well, Bill, I did. I did, Bill.”
Eventually, appellant came downstairs and surrendered himself.
{¶ 13} Following Shaner’s testimony, the state called Toledo Police Detective
Jeffrey Jackson of the Scientific Investigation Unit. Jackson was the individual who
documented the crime scene. Jackson took photographs of and collected a firearm
located on the sidewalk leading up to the house, as well as a firearm located in an upstairs
bedroom. Jackson also photographed and collected eleven bullet casings and several
bullets. Photos of the crime scene were admitted as evidence, including photos of C.C.
Through Jackson, the state also admitted a photograph of appellant’s driver’s license and
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pay stub, which were located in his wallet, and which listed appellant’s address as 824
Delence Street. On cross-examination, Jackson identified a picture that he took of mail
addressed to appellant at 247 Mayberry. Jackson also acknowledged that appellant’s
driver’s license was issued in February 2015, and was unexpired at the time of the
incident.
{¶ 14} The state next called forensic scientist Devonie Herdeman as an expert
witness. Herdeman testified that both appellant and C.C. were included in the DNA
profiles found on the two firearms.
{¶ 15} The next witness to testify was Lucas County Deputy Coroner Dr. Cynthia
Beiser. Dr. Beiser testified that the victim had suffered eight different gunshot wounds.
She further testified to a degree of medical certainty that the victim died from those
multiple gunshot wounds within a matter of minutes. Finally, Dr. Beiser testified that the
lining of the victim’s uterus was hemorrhagic, which is consistent with an abortion
procedure.
{¶ 16} Detective James Dec of the Toledo Police Computer Crimes Unit testified
next. Dec authenticated two videos that were taken from appellant’s cell phone, which
were then played for the jury. In the videos, appellant accused C.C. of having an
abortion, claiming that she became pregnant while cheating on appellant and she was
unsure of who the father was. Dec also downloaded the text message history from
appellant’s cell phone, and identified one message sent at 6:54 a.m. on December 16,
2016, in which appellant stated “Hey i killed [C.C.] im sorry.”
7.
{¶ 17} The final witness to testify was Toledo Police Detective William Goodlet,
who was the investigating detective on this case. Through Goodlet, the state introduced
by stipulation the BCI report that showed that the bullet casings were fired from the guns
found at the scene. Goodlet also read to the jury a note that was found in appellant’s
wallet at the scene. The note, which was handwritten in cursive, was critical of C.C., and
described how C.C. took her newborn son out with her in the early morning hours of
December 13, 2016, so that she could have sex. When appellant returned home from
work at 6:10 a.m., C.C. then left the house to sneak to Michigan to have an abortion. The
note claimed that C.C. had busted his head, scratched his truck, broken everything that he
had owned, spit in his face, and then went on Facebook and lied about appellant to make
him look bad and her look good. The note concluded, “I probably could get over
anything in the World but you don’t kill my kid & if it wasn’t my kid to began with that
was her fault cuz we’re married. You can’t fuck over Everybody & smile.” Then, in all
capital, printed letters, the note stated, “LESSON SELFISH GREEDY BITCH YOU
KILT THE WRONG KID.”
{¶ 18} Goodlet then testified regarding appellant’s cell phone messages to C.C.
Goodlet testified that in the weeks before C.C. was killed, appellant did not appear to be
very happy with her, and was calling her lots of derogatory names. Goodlet also testified
that from the messages, it did not appear that appellant was living with C.C. in December
2016. Goodlet explained that the messages indicated that appellant was looking for
homes, and that he did not want to live with his mother anymore. Further, there were text
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messages from the end of November from C.C. to appellant telling him that he was not
welcome at her house anymore, and that she wanted him out of there. Goodlet also
testified that appellant was aware that C.C. was pregnant by the end of November 2016.
Then, on December 13, 2016, between noon and 1:00 p.m., appellant sent a string of text
messages to C.C. stating over and over that he hoped she died during the abortion.
{¶ 19} Finally, Goodlet testified that two days later, on December 15, 2016, the
day before C.C. was killed, appellant attempted to contact her 31 times. In those
messages, appellant told C.C. that he loved her, that he was sorry, and that he wanted to
work on their marriage. C.C. did not respond to any of the messages or phone calls.
{¶ 20} Following the state’s presentation of its evidence, appellant moved for an
acquittal on all charges pursuant to Crim.R. 29. The trial court denied appellant’s
motion. Appellant then rested without presenting any evidence. After the trial court
instructed the jury and the parties made their closing arguments, the jury retired to
deliberate. The next day, the jury returned with a verdict of guilty as to all counts.
Sentencing was held the following day, on November 3, 2017, at which the trial court
merged the first count of aggravated murder with the remaining three counts, and
sentenced appellant to life in prison without the possibility of parole, to run consecutively
to the mandatory three-year prison sentence for the firearm specification.
II. Assignments of Error
{¶ 21} Appellant has timely appealed his judgment of conviction, and now assigns
nine errors for our review:
9.
1. The trial court erred in denying the defendant’s motion to
suppress evidence gathered pursuant to an overly broad warrant in violation
of the defendant’s rights pursuant to Fourth and Fifteenth Amendments to
the United States Constitution and Article I, Section Fourteen of the Ohio
Constitution.
2. The trial court erred in denying the defendant’s motion to
suppress statements of the appellant in violation of his Fifth Amendment
constitutional rights and the basic holdings in Miranda v. Arizona.
3. The appellant’s convictions were not supported by a sufficiency
of evidence.
4. Appellant’s convictions are against the manifest weight of the
evidence.
5. The trial court erred in failing to grant appellant’s Rule 29 motion
to dismiss at the time of trial.
6. The court committed plain error and abused its discretion in
permitting jury instructions of aggravated burglary and trespass.
7. The appellant was denied effective assistance of counsel, further
denying him the right to due process, equal protection under the law and the
right to a fair trial as guaranteed by the U.S. Constitution and the Fifth
Amendment, Sixth Amendment, Eighth Amendment, Ninth Amendment
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and Fourteenth Amendment and those guaranteed under the Ohio
Constitution.
8. The cumulative effect of the errors committed by the trial court
violated the defendant’s right to a fair trial and his constitutional rights to
due process, the right to confront evidence and the right to be free from
arbitrary, cruel and unusual punishment in contradiction to the U.S.
Constitution, Amendments V, VI, VII, IX and XIV and the privileges
granted in the Ohio Constitution.
9. The trial court erred in imposing the maximum sentence in
violation of the Eighth Amendment to the United States Constitution and
the guidelines under the Ohio Revised Code 2953.08 and by basing the
reasoning of the maximum sentence upon inappropriate and prejudicial
factors.
III. Analysis
A. Motion to Suppress
{¶ 22} In his first and second assignments of error, appellant challenges the trial
court’s decision not to suppress the note found in his wallet or his statements to Sergeant
Shaner during the stand-off, respectively.
1. Standard of Review
Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court
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assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.
Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard. (Internal citations omitted.)
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
2. Search Warrant Particularity
{¶ 23} In his first assignment of error, appellant argues that the trial court erred in
denying his motion to suppress the note found in his wallet because the warrant did not
describe the evidence to be seized with sufficient particularity.
{¶ 24} The Fourth Amendment to the United States Constitution provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
Likewise, Article I, Section 14 of the Ohio Constitution is nearly identical in its language,
“and its protections are coextensive with its federal counterpart.” State v. Kinney, 83
Ohio St.3d 85, 87, 698 N.E.2d 49 (1998). “The manifest purpose of this particularity
requirement was to prevent general searches. * * * [T]he requirement ensures that the
search will be carefully tailored to its justifications, and will not take on the character of
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the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v.
Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987).
{¶ 25} “Courts addressing the particularity requirement of the Fourth Amendment
are concerned with two issues. The first issue is whether the warrant provides sufficient
information to ‘guide and control’ the judgment of the executing officer in what to seize.
* * * The second issue is whether the category as specified is too broad in that it includes
items that should not be seized.” (Internal citations omitted.) State v. Castagnola, 145
Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 79. “A search warrant that includes
broad categories of items to be seized may nevertheless be valid when the description is
‘as specific as the circumstances and the nature of the activity under investigation
permit.’” Id. at ¶ 80, quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985).
“Warrants that fail to describe the items to be seized with as much specificity as the
government’s knowledge and the circumstances allow are ‘invalidated by their
substantial failure to specify as nearly as possible the distinguishing characteristics of the
goods to be seized.’” Id., quoting United States v. Fuccillo, 808 F.2d 173, 176 (1st
Cir.1987).
{¶ 26} In this case, the warrant described the property to be searched for and
seized as: “handguns (unknown caliber) and ammunition to match the handguns,
handgun parts, clothing, surveillance video recording equipment, cellular telephones,
computers and other electronic devices and any/all other unnamed evidence related to the
death of [C.C.].”
13.
{¶ 27} Appellant argues that the phrase “any/all other unnamed evidence related to
the death of [C.C.]” is overly broad. In support, he cites Castagnola and State v. Gritten,
11th Dist. Portage No. 2004-P-0066, 2005-Ohio-2082, both of which we find
distinguishable. In Castagnola, the Ohio Supreme Court held that a search warrant that
listed property to be seized as “[r]ecords and documents either stored on computers,
ledgers, or any other electronic recording device,” without containing any description or
qualifiers limiting what the searcher was permitted to look for, was overly broad and
failed to satisfy the particularity requirement. Castagnola at ¶ 82. Similarly, the
Eleventh District in Gritten held that a search warrant was overly broad where it
described the items to be seized as “any evidence of the crime drug abuse and all other
fruits and instrumentalities of the crime at the present time unknown.” Gritten at ¶ 14.
The Eleventh District reasoned that “drug abuse” is not a particular crime under the
Revised Code. Id. Further, the court noted that it “fail[ed] to see any reason why the
warrant could not have described the items to be seized more precisely.” Id. at ¶ 15.
{¶ 28} In contrast, in State v. McCrory, 6th Dist. Wood Nos. WD-09-074,
WD-09-090, 2011-Ohio-546, ¶ 43 this court noted that “[s]ubject-matter limitations
sufficient to satisfy the particularity requirement include references to the crime or
criminal activity at hand, specific persons, or specific types of material.” Thus, we
concluded that a search warrant was sufficiently particular where it authorized a search
for
14.
Computers, emails, photos, flash drives, external hard drives, cell
phones, any documents with information from Craigslist.org. Any names
or addresses or phone number for persons that replied to the advertisement
posted on Craigslist.org, any digital media able to store or house emails and
photos. Any billing or billing statements from Craigslist.org, any banking
withdrawal slip showing cash advances on or about 6/21-22/2008. Any and
all contraband.
Which is in violation of
Rape 2907.02 ORC
Id. at ¶ 6-8, 44-45. See also State v. Bangera, 2016-Ohio-4596, 70 N.E.3d 75, ¶ 51 (11th
Dist.) (warrant containing long list of generic items was not overly broad because the
warrant “expressly qualified each item to be seized as being connected with drug
trafficking”); State v. Gonzales, 3d Dist. Seneca Nos. 13-13-31, 13-13-32, 2014-Ohio-
557, ¶ 34 (warrant was sufficiently specific where it indicated items to be searched and
seized that may have yielded evidence of drug possession or drug trafficking).
{¶ 29} Here, the phrase “any/all unnamed evidence related to the death of [C.C.]”
was preceded by a list of items, all of which were expressly tied to the specific crimes of,
inter alia, aggravated murder, murder, and voluntary manslaughter. Thus, this search
warrant did not authorize a wide-ranging, exploratory search for evidence of any crime.
Rather, consistent with McCrory, we find this description to be sufficiently particular to
guide and control the executing officer in what to seize, and that the description of the
15.
evidence sought was as specific as the circumstances and the nature of the activity under
investigation permitted. Therefore, we find no merit to appellant’s argument that the
search warrant lacked particularity.
{¶ 30} Accordingly, appellant’s first assignment of error is not well-taken.
3. Custodial Interrogation
{¶ 31} In his second assignment of error, appellant argues that his statements to
Sergeant Shaner should have been suppressed because they were made during the course
of a custodial interrogation and without appellant having received the warnings required
by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
{¶ 32} The issue in this case centers on whether appellant was subjected to
“custodial interrogation.” Custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Miranda at 444.
{¶ 33} “In determining whether an individual was in custody, a court must
examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry
is simply whether there [was] a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.’” (Internal quotation omitted.) Stansbury v.
California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), quoting
California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).
Here, appellant argues that he was in the functional equivalent of custody when he was
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barricaded upstairs in the residence, in that he was not free to leave due to the presence of
the armed S.W.A.T. team surrounding his location. We disagree.
{¶ 34} Although not a frequent occurrence, courts that have dealt with this issue
have uniformly held that a defendant is not “in custody” during a hostage situation or
police stand-off. State v. Christopher, 8th Dist. Cuyahoga No. 54331, 1988 WL 128260(Dec. 1, 1988), presents a representative fact pattern. In that case, police responded to the
scene of a reported gunshot wound. When they arrived, they observed a body lying on
the front porch, and a distraught man who was heavily armed and threatening suicide.
The police retreated to safety and were able to engage the defendant in numerous
telephone conversations. The defendant secured himself inside of the house, and held 45
police officers at bay for approximately four hours. Id. at *1, 7. At trial, the court
allowed the police officers to testify to the statements that appellant made during those
four hours, despite the fact that no Miranda warnings had been given. On appeal, the
Eighth District affirmed, reasoning that the defendant was not in custody at the time the
statements were made, and thus Miranda did not apply. Id. at *7.
{¶ 35} Other courts have provided a more robust explanation of the reasoning:
“an officer who is talking to a suspect under these conditions is not physically in the
suspect’s presence and thus lacks immediate control over the suspect, who retains a
degree of freedom of action inconsistent with a formal arrest; indeed the suspect can
readily terminate communications at any time by hanging up the phone.” People v.
Mayfield, 928 P.2d 485, 521 (Cal.1997), abrogated on other grounds, People v. Scott,
17.
349 P.3d 1028 (Cal.2015). See also People v. Scott, 269 A.D.2d 96, 98, (N.Y.App.2000);
United States v. Mesa, 638 F.2d 582, 588 (3d. Cir.1980); State v. Pejsa, 876 P.2d 963,
969 (Wash.App.1994).
{¶ 36} Here, in the same way, the S.W.A.T. team was not in the physical presence
of appellant and lacked immediate control over his person, and appellant retained a
degree of freedom of action in the upstairs part of the residence that was inconsistent with
a formal arrest. Therefore, we hold that appellant was not in custody for purposes of
Miranda.
{¶ 37} Furthermore, we hold that appellant was not subject to interrogation.
“‘[I]nterrogation’ as conceptualized in the Miranda opinion, must reflect a measure of
compulsion above and beyond that inherent in custody itself.” State v. Tucker, 81 Ohio
St.3d 431, 436, 692 N.E.2d 171 (1998), quoting Rhode Island v. Innis, 446 U.S. 291, 300,
100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). “[T]o determine whether a suspect has been
‘interrogated,’ the heart of the inquiry focuses on police coercion, and whether the
suspect has been compelled to speak by that coercion.” Id. “This compulsion can be
brought about by express questioning, but also can be brought about by the ‘functional
equivalent’ of express questioning, i.e., ‘any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.’” Id., quoting
Innis at 300-301.
18.
{¶ 38} In this case, the incriminating statements were not the product of a
successful “incommunicado interrogation of [an individual] in a police-dominated
atmosphere” about which Miranda was concerned. Miranda, 384 U.S. at 445, 86 S.Ct.
1602, 16 L.Ed.2d 694. Rather, the statements were obtained while Sergeant Shaner was
trying to secure appellant’s nonviolent surrender. See State v. Stearns, 506 N.W.2d 165,
168 (Wis.App.1993); State v. Reimann, 870 P.2d 1346, 1350 (Kan.App.1994); State v.
Pejsa, 876 P.2d 963, 969 (Wash.App.1994). Indeed, instead of seeking a confession,
Shaner was attempting to minimize appellant’s criminal conduct when he stated to
appellant that “I know how these things can happen and, you know, I’m sure you didn’t
plan for this to happen.” Therefore, we hold that Shaner’s interaction with appellant was
not an interrogation, and thus Miranda does not apply.
{¶ 39} Accordingly, appellant’s second assignment of error is not well-taken.
B. Sufficiency of the Evidence
{¶ 40} In his third assignment of error, appellant argues that his conviction for
aggravated murder was based upon insufficient evidence. In his fifth assignment of error,
appellant argues that the trial court erred in denying his Crim.R. 29 motion for acquittal.
Because a Crim.R. 29 motion for acquittal is governed by the same standard as the one
for determining whether a verdict is supported by sufficient evidence, we will address the
assignments of error together. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417,
847 N.E.2d 386, ¶ 37.
19.
{¶ 41} In reviewing a record for sufficiency, “[t]he 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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶ 42} Appellant was found guilty of aggravated murder under both R.C.
2903.01(A) and 2903.01(B). R.C. 2903.01(A) provides, “No person shall purposely, and
with prior calculation and design, cause the death of another or the unlawful termination
of another’s pregnancy.” In contrast, R.C. 2903.01(B) states, in relevant part, “No person
shall purposely cause the death of another or the unlawful termination of another’s
pregnancy while committing or attempting to commit * * * aggravated burglary.”
{¶ 43} Relative to his conviction under R.C. 2903.01(A), appellant argues that the
state produced insufficient evidence to establish that the murder was committed with
“prior calculation and design.” “The phrase ‘prior calculation and design’ by its own
terms suggests advance reasoning to formulate the purpose to kill. Evidence of an act
committed on the spur of the moment or after momentary consideration is not evidence of
a premeditated decision or a studied consideration of the method and the means to cause
a death.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18.
Three factors are traditionally considered in determining whether a defendant acted with
prior calculation and design: “(1) Did the accused and victim know each other, and if so,
was that relationship strained? (2) Did the accused give thought or preparation to
20.
choosing the murder weapon or murder site? and (3) Was the act drawn out or ‘an almost
instantaneous eruption of events?’” Id. at ¶ 20, quoting State v. Taylor, 78 Ohio St.3d 15,
19, 676 N.E.2d 82 (1997).
{¶ 44} Appellant contends that although he and C.C. clearly knew each other, and
their relationship was strained, there is no evidence that appellant gave thought to
selecting a murder weapon or choosing the murder site. To the contrary, appellant asserts
that if he had given thought or preparation to choosing the time and place of the murder,
he would not have been dressed solely in his underwear, would not have left surveillance
cameras running, and would not have selected a time when their child was present in the
house. Appellant also points to the manner in which he entered the residence—that he
entered the front door using a key, was unhurried, and even stopped to pick up a box and
its contents—as evidence that he did not enter the home planning to murder C.C., but
rather that her death was the result of a spontaneous eruption due to rising emotions
between the two parties.
{¶ 45} However, the evidence in this case includes the barrage of text messages
sent to C.C. three days before she was killed in which appellant repeatedly stated that he
hoped she died during the abortion procedure. The evidence also includes the note found
in his wallet, which read “I probably could get over anything in the World but you don’t
kill my kid & if it wasn’t my kid to began with that was her fault cuz we’re married. You
can’t fuck over Everybody & smile.” Then, in all capital, printed letters, the note stated,
“LESSON SELFISH GREEDY BITCH YOU KILT THE WRONG KID.” Both the text
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messages and the note lead to the reasonable inference that appellant contemplated C.C.’s
death.
{¶ 46} Moreover, the manner in which appellant killed C.C. supports a conclusion
of prior calculation and design. “[P]rior calculation and design can be found even when
the killer quickly conceived and executed the plan to kill within a few minutes.” State v.
Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001). Evidence of prior calculation
and design includes facts which demonstrate that appellant’s conduct “went beyond a
momentary impulse and show that he was determined to complete a specific course of
action.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 46.
Here, the evidence from the 911 call was that appellant was chasing C.C. throughout the
house with guns. The forensic evidence revealed that appellant then shot at C.C. at least
11 times with two different guns, and struck her eight times. Bullet casings and bullets
were found in several different rooms throughout the house. In addition, Officer
Morrison testified that within minutes of the 911 call being placed, he heard a series of
shots, followed by a brief pause, and then a single shot. We find that all of this evidence
supports the conclusion that appellant did not act on a momentary impulse, but that he
developed a plan to kill C.C. and was determined to complete that plan.
{¶ 47} Finally, according to Sergeant Shaner, appellant admitted in his own words
that he meant to kill C.C. When Shaner said to appellant, “I know how these things can
happen and, you know, I’m sure you didn’t plan for this to happen,” appellant replied,
“Well, Bill, I did. I did, Bill.”
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{¶ 48} Therefore, we hold that appellant’s conviction for aggravated murder based
upon prior calculation and design under R.C. 2903.01(A) is supported by sufficient
evidence.
{¶ 49} Turning to the finding of guilt under R.C. 2903.01(B), appellant argues that
the state failed to prove that he purposely caused the death of another while committing
an aggravated burglary. R.C. 2911.11(A) defines the offense of aggravated burglary as,
No person, by force, stealth, or deception, shall trespass in an
occupied structure * * * when another person other than an accomplice of
the offender is present, with purpose to commit in the structure * * * any
criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical
harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or
about the offender’s person or under the offender’s control.
The offense of “trespass,” in turn, is defined as “No person, without privilege to do so,
shall do any of the following: (1) Knowingly enter or remain on the land or premises of
another.” R.C. 2911.21(A)(1).
{¶ 50} Appellant contends that there was no evidence that he used force, stealth,
or deception to enter the residence, or that he was trespassing in the residence. In support
of his position, appellant argues that he used his key to enter the front door, and there was
no court order prohibiting him from being in his marital home. Further, appellant notes
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that the residence contained his clothing and other possessions, and there was mail
addressed in his name at that address. Separately, appellant argues that there is no
evidence that he trespassed with the purpose to commit a criminal offense. We disagree.
{¶ 51} The evidence in the record demonstrates that the residence was titled solely
in C.C.’s name, and although appellant had lived there as his marital residence, the text
messages introduced at trial reveal that C.C. asked appellant to move out, and appellant
did, in fact, move out. That appellant did not reside at the home is also borne out by the
fact that his television equipment was unhooked and packed up. In addition, even if
appellant entered the home with C.C.’s permission, his privilege to be there terminated
when he started threatening her and chasing her with guns. In State v. Steffen, 31 Ohio
St.3d 111, 115, 509 N.E.2d 383 (1987), the Ohio Supreme Court held that a jury was
justified in inferring that the defendant’s privilege to be in the victim’s parent’s home
“terminated the moment he commenced his assault on her.” Similarly, here, C.C. can be
heard on the 911 call begging appellant to leave while he is chasing her. Thus, any
privilege appellant had to be at the residence ended, and his remaining on the property
constituted a trespass. Therefore, we hold that the state presented sufficient evidence for
a rational trier of fact to conclude beyond a reasonable doubt that appellant purposely
caused the death of another while committing an aggravated burglary.
{¶ 52} Accordingly, appellant’s third and fifth assignments of error are not well-
taken.
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C. Manifest Weight of the Evidence
{¶ 53} In his fourth assignment of error, appellant argues that his conviction is
against the manifest weight of the evidence. When reviewing a manifest weight claim,
[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 54} In support of his assignment of error, appellant relies on his argument that
his conviction was based on insufficient evidence. Upon our review of the entire record,
we find that this is not the exceptional case in which the evidence weighs heavily against
the conviction. Here, although an inference could be made that this crime occurred as a
spontaneous eruption based upon the evidence that appellant calmly entered the
residence, was in his underwear at the time the crime occurred, and killed C.C. while
their child was in the home, we find that the weight of the evidence is such that the jury
did not clearly lose its way when it found that appellant acted with prior calculation and
design. In particular, the text messages expressing his desire that she die, his handwritten
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note angrily stating that she killed the wrong kid, his conduct of chasing C.C. throughout
the house and shooting her eight times, and the admission to Sergeant Shaner that he
meant to kill C.C. all support appellant’s conviction for aggravated murder.
{¶ 55} Likewise, regarding the second count of aggravated murder, while an
inference could be made that appellant was not committing an aggravated burglary when
he killed C.C., we hold that the weight of the evidence supports the jury’s finding that
appellant forcefully trespassed on the property with the purpose to commit a criminal
offense, and that while doing so appellant purposely killed the victim. The evidence
demonstrates that the victim asked the appellant to move out of the residence, and
appellant did move out. Further, any permission that appellant had to be at the residence
was revoked when appellant began chasing her and threatening her with guns.
{¶ 56} Therefore, we hold that appellant’s conviction for aggravated murder is not
against the manifest weight of the evidence.
{¶ 57} Accordingly, appellant’s fourth assignment of error is not well-taken.
D. Jury Instructions on Aggravated Burglary and Trespass
{¶ 58} In his sixth assignment of error, appellant argues that the trial court erred
when it overruled appellant’s objections to the proposed jury instructions on aggravated
burglary and trespass. “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if reasonable
minds might reach the conclusion sought by the requested instruction.” State v. Adams,
144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.
26.
{¶ 59} In this case, appellant does not contend that the jury instructions were
incorrect statements of the law, but rather that the instructions should not have been given
because they were not warranted by the facts. In support, appellant reiterates his
argument that he entered the residence with his key, the residence contained his clothing,
mail, and other possessions, and there was no court order denying his access. We
disagree for the same reasons discussed in appellant’s third, fourth, and fifth assignments
of error: the victim had asked appellant to move out of the home, text messages from
appellant showed that he did move out of the home, appellant’s possessions were packed
up, and any permission he had to be in the home was revoked when he began chasing the
victim and threatening her with guns. Therefore, we hold that the trial court did not err in
instructing the jury on aggravated burglary and trespass.
{¶ 60} Accordingly, appellant’s sixth assignment of error is not well-taken.
E. Ineffective Assistance of Counsel
{¶ 61} In his seventh assignment of error, appellant claims that his trial counsel
was ineffective, thus depriving him of a fair trial. To prevail on a claim of ineffective
assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is,
appellant must demonstrate that counsel’s performance fell below an objective standard
of reasonableness, and a reasonable probability exists that, but for counsel’s error, the
result of the proceedings would have been different. Id. at 687-688, 694. In undertaking
our review, we note that “[j]udicial scrutiny of counsel’s performance must be highly
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deferential. Id. at 689. “[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id.{¶ 62} In support, appellant first argues that counsel was ineffective for failing to
negotiate a better plea agreement, and for failing to warn him that what he said during
pretrial proceedings could be used at sentencing. Prior to appellant’s decision to replace
his trial counsel, appellant’s original counsel was able to negotiate an agreement whereby
appellant would plead guilty to aggravated murder based upon prior calculation and
design, and the remaining charges and gun specifications would be dismissed. In
addition, the state agreed not to make a sentencing recommendation, although it did
reserve the right to highlight several of the facts at the sentencing hearing. No better deal
was offered. While taking the plea, the trial court informed appellant that if it determined
that the appropriate sentence was life without the possibility of parole, it would allow
appellant to withdraw his guilty plea and proceed to trial. Appellant initially agreed to
the proposed deal and pleaded guilty. Several days later though, before the sentencing
hearing was held, appellant moved to dismiss his counsel and withdraw his guilty plea,
which the trial court ultimately allowed him to do.
{¶ 63} Appellant now summarily argues that counsel could have negotiated a
better deal. However, appellant makes no effort to demonstrate why he could have gotten
a better deal or whether the state would have agreed to a different plea deal. Thus, we
hold that appellant has failed to demonstrate that counsel’s performance was deficient.
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{¶ 64} Next, appellant asserts that counsel was ineffective for failing to warn him
that anything he said during pretrial proceedings could be used at sentencing. By way of
background, at sentencing the trial court referred to comments that appellant made during
the June 20, 2017 hearing on the motion to withdraw his guilty plea. Specifically, at the
June 20, 2017 hearing appellant offered his theory that the robot introduced into the
residence by police during the stand-off weighed one hundred pounds, and that it was
actually the robot falling on C.C. that caused her death. Appellant asserted that C.C. was
still alive in the kitchen at that time and was speaking to him. During the sentencing
hearing, the trial court referred to those comments as “offensive.” Returning to
appellant’s claim of ineffective assistance, the record reveals that, despite appellant’s
assertions to the contrary, trial counsel did warn him not to make those comments.
Counsel stated at the hearing on the motion to withdraw:
So on a number of occasions, as with regard to this issue of whether
the robot was the causal factor in his wife’s death, I am quite certain that
we did advise him that going down this road with a defense that had no
basis in science or logic, could result -- not would, but could result in him
facing life in prison without parole, which is in fact what he faced in this
matter.
Thus, we hold that appellant has not demonstrated that counsel’s performance fell below
an objective standard of reasonableness.
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{¶ 65} Appellant also asserts that counsel was ineffective for failing to examine
whether physical evidence could be suppressed. Again, the record belies appellant’s
claim. Appellant cites counsel’s statement,
In light of all this evidence, the coroner’s report, ballistics, DNA,
statements, physical evidence, text messages, Facebook, all of these things
we examined with an eye toward, could we suppress them or could this be a
motion in limine? * * * We never really discussed those with Mr. Campbell
because we headed down a path of resolution.
However, three sentences later, appellant’s trial counsel stated, “So rather than get into
specifics, I will just indicate that all of those subjects were touched on and that we
covered them and I think in appropriate fashion, ultimately coming to the conclusion that
there were no meaningful motions that could be filed.” Thus, counsel clearly examined
whether those items could be suppressed. Moreover, appellant has failed to demonstrate
that any of the items should have been suppressed. Indeed, as discussed above, the trial
court properly denied appellant’s motion to suppress that was filed by replacement
counsel. Thus, we hold that appellant has failed to demonstrate that counsel’s
performance was deficient or that it was prejudicial.
{¶ 66} Finally, appellant argues that replacement trial counsel was ineffective for
failing to object to “any number of exhibits (dozens) offered by the State.” Appellant
then lists 20-30 page numbers from the transcript of the trial where exhibits were
admitted. Appellant describes these exhibits as “rang[ing] from recordings, photographs,
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cell phone records and printouts, clothing, reports, and expert reports.” Appellant makes
no effort, however, to explain why any of these exhibits should not have been admitted,
except to generically claim that counsel could have raised “objections concerning
Improper Foundation, Lack of Proper Authentication of Records, Hearsay, Improper use
of Business Records, Materiality, Relevance, and others.” Without specific objections to
specific pieces of evidence, we cannot say that appellant has satisfied his burden to
demonstrate that counsel’s performance was deficient or prejudicial.
{¶ 67} In light of the foregoing, we hold that appellant has not satisfied his burden
under Strickland to demonstrate ineffective assistance of counsel.
{¶ 68} Accordingly, appellant’s seventh assignment of error is not well-taken.
F. Cumulative Error
{¶ 69} In his eighth assignment of error, appellant argues that his convictions must
be reversed due to cumulative error. Pursuant to the cumulative error doctrine, “a
conviction will be reversed where the cumulative effect of errors in a trial deprives a
defendant of the constitutional right to a fair trial even though each of numerous instances
of trial court error does not individually constitute cause for reversal.” State v. Garner,
74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Here, however, we have not found
multiple instances of harmless error, thus the cumulative error doctrine does not apply.
Id.{¶ 70} Accordingly, appellant’s eighth assignment of error is not well-taken.
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G. Sentencing
{¶ 71} Finally, as his ninth assignment of error, appellant argues that the trial court
abused its discretion when it imposed the maximum sentence of life in prison without the
possibility of parole. Appellant acknowledges that his sentence is within the range of
sentences provided by statute, but he contends that his sentence does not comply with the
principles and factors of R.C. 2929.11 and 2929.12.
{¶ 72} As noted by the state, however, appellant’s sentence for aggravated murder
is not reviewable. “[T]here is no constitutional right to an appellate review of a criminal
sentence.” State v. Smith, 80 Ohio St.3d 89, 97, 684 N.E.2d 668 (1997), relying on
Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). Article
IV, Section 3(B)(2) of the Ohio Constitution provides that “Courts of appeals shall have
such jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals within the
district.” (Emphasis added.) That law is R.C. 2953.08, which “specifically and
comprehensively defines the parameters and standards—including the standard of
review—for felony-sentencing appeals.” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 21. Relevant here, R.C. 2953.08(D)(3) provides “A
sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to
2929.06 of the Revised Code is not subject to review under this section.” As recognized
by the Ohio Supreme Court, “R.C. 2953.08(D) is unambiguous. [That provision] clearly
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means what it says: such a sentence cannot be reviewed.” State v. Porterfield, 106 Ohio
St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 17.
{¶ 73} Moreover, even if we could review appellant’s sentence for an abuse of
discretion as he argues, we find no merit to his argument. Appellant contends that the
trial court was improperly influenced by the stand-off that occurred before appellant
surrendered, and by the statements appellant made regarding his theory of the robot
causing the C.C.’s death. In imposing its sentence, the trial court dutifully referenced the
principles and purposes of sentencing provided in R.C. 2929.11, as well as the
seriousness and recidivism factors found in R.C. 2929.12. The court then found that
although appellant did not have a serious criminal history, he did have a “hint of a streak
of violence.” The court also remarked that appellant’s offered explanation that this was a
crime of passion arising from C.C.’s decision to have an abortion, and his proposed
theory that the robot caused her death, were not supported by the evidence. Instead, the
court found that the evidence demonstrated that appellant was really motivated by his ego
and pride, and he could not accept the fact that C.C. no longer wanted him in her life.
The court then recounted that appellant chased C.C. throughout the house, and recalled
the sense of terror that he heard from C.C. on the 911 call. The court detailed that
appellant stalked her throughout the house, shooting at her eleven times until she was
cornered in the kitchen. Finally, the court concluded that appellant shot C.C. eight times,
“[c]learly just meant to inflict as much pain as possible on this young woman.” Upon
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this record, we cannot conclude that the trial court’s decision to sentence appellant to life
in prison without the possibility of parole was an abuse of discretion.
{¶ 74} Accordingly, appellant’s ninth assignment of error is not well-taken.
IV. Conclusion
{¶ 75} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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