State v. Bell

[Cite as State v. Bell, 2023-Ohio-277.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 21CA0052-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GARY BELL COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 20CR0829
DECISION AND JOURNAL ENTRY
Dated: January 31, 2023
CARR, Judge.
{¶1} Appellant, Gary Bell, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} On the evening of November 6, 2020, Bell’s wife (“Wife”) called 9-1-1 after Bell
fired a gun in the family’s house in Seville. The incident occurred after Bell and Wife had an
argument.
{¶3} The Medina County Grand Jury indicted Bell on two counts of felonious assault in
violation of R.C. 2903.11(A)(2)/(D)(1)(a). Both counts contained firearm and forfeiture
specifications. Bell pleaded not guilty to the charges at arraignment.
{¶4} The matter was ultimately tried to the bench. The trial court found Bell guilty of
both counts of felonious assault as well as the attendant specifications and imposed a total prison
sentence of five years. Bell was ordered to forfeit the handgun used during the incident.
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{¶5} On appeal, Bell raises three assignments of error. This Court consolidates certain
assignments of error to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S JUDGMENT OF GUILTY IS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S JUDGMENT OF GUILTY IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} In his first assignment of error, Bell contends that his convictions were not
supported by sufficient evidence. In his second assignment of error, Bell argues that his
convictions were against the weight of the evidence.
{¶7} Bell was convicted of two counts of felonious assault in violation of R.C.
2903.11(A)(2), which states, “[n]o person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance.” R.C.
2903.11(D)(1)(a) provides that a violation of this section is a felony of the second degree.
{¶8} R.C. 2901.22(B) defines “knowingly” as follows:
A person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence and fails to
make inquiry or acts with a conscious purpose to avoid learning the fact.
Sufficiency
{¶9} In support of his sufficiency challenge, Bell contends that the State failed to
demonstrate that he knowingly attempted to cause physical harm to Wife. Bell argues that there
was no evidence that he ever pointed or aimed the gun at Wife or that Wife was in the path of
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either bullet fired by Bell. Bell further points to the Ohio Supreme Court’s decision in State v.
Mills, 62 Ohio St.3d 357 (1992), in support of the proposition that a conviction for felonious assault
cannot be sustained when the State fails to demonstrate that the alleged victim was in the line of
fire.
{¶10} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before the
trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The 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.
Id. at paragraph two of the syllabus.
{¶11} On November 6, 2020, at approximately 8:30 p.m., Sgt. Brett Harrison of the
Montville Police Department was on patrol when he was informed that Wife called 9-1-1 after
Bell fired a gun in their house. Sgt. Harrison and several other officers responded to the scene.
Wife remained on the line with dispatch after reporting the incident and was instructed to walk to
the end of the driveway where the officers were located. Wife, who appeared upset and scared,
explained that she had a heated argument with Bell after he came home late from work. Sgt.
Harrison testified that, “[Wife] said during the argument she got tired of listening to him, so she
went into the [master] bedroom and closed the door. She said then [Bell] went into the spare
bedroom.” Separating into the bedrooms in this manner was common practice for the couple
during arguments. Wife could hear Bell yelling in the spare bedroom. Wife told Sgt. Harrison
that she was standing near her bed when she heard a gunshot. Wife further told Sgt. Harrison that
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she locked the bedroom door and entered the bathroom, where she hid in the bathtub and heard a
second gunshot. Wife then called 9-1-1.
{¶12} The couple’s adult son (“Son”) remained in the house during Wife’s conversation
with Sgt. Harrison. Soon thereafter, Wife called Son and he proceeded to exit the house as well.
Son indicated that Bell was in bed in the spare bedroom.
{¶13} At that point four officers approached the house. One of the officers was a neighbor
who had Bell’s cell phone number. Bell was eventually persuaded to come out of the house. After
being taken into custody and receiving Miranda warnings, Bell indicated that the gun was inside
the dresser located in the spare bedroom. The officers entered the house and conducted a search
after obtaining consent from Wife. The officers were able to recover the gun. Bell was taken to
the police station where he consented to be interviewed. Bell stated that he had fired the gun by
accident. During the couple’s argument, Wife accused Bell of marital infidelity. Bell indicated
that he went into the spare bedroom before Wife entered the master bedroom. At one point during
the interview, Bell stated that he “kn[e]w [Wife] just wanted to go into her bedroom and be alone”
and that was when he pulled out his gun and “made a mistake[.]” Bell later suggested that he was
not certain that Wife was in the bedroom but he “would assume” so because she “always” enters
the bedroom when she is upset. Bell indicated that he did not know he fired two shots until he
looked at the wall. Bell acknowledged that the gunshots travelled through the wall in the direction
of Wife’s bedroom. After the shots were fired, Bell immediately went to the master bedroom door
and called out to Wife to check on her.
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{¶14} Sgt. Cory Searle conducted an interview with Wife that was recorded on his body
camera.1 Wife told Sgt. Searle that the couple’s argument focused on the number of hours that
Bell was working. Wife said that when she grew tired of the argument, she went into her bedroom
hoping Bell would calm himself down. Wife indicated that Bell knew she was in the bedroom.
After the couple dispersed into separate bedrooms, Wife heard the first gunshot. Wife indicated
that there was a delay between the shots. Though Bell had made comments about suicide in the
past, Wife did not think Bell had shot himself. Sgt. Searle sought a deeper understanding of Wife’s
thoughts as the incident unfolded. In recalling Wife’s description of the situation, Sgt. Searle
testified as follows:
I thought at the time that a reasonable person would assume that somebody had
committed suicide with a single gunshot. She said that was not her initial thought,
and quite to the contrary, she sought cover in the en-suite master bathroom in the
bathtub before she heard the second shot.
{¶15} During the investigation, the officers took a large number of photographs that were
admitted as exhibits at trial. The State also admitted a diagram of the floorplan of the house, a
one-story ranch. The photos demonstrated that two shots were fired from the spare bedroom. One
shot travelled on a downward trajectory through the wall of the spare bedroom and then through
the master bathroom where it lodged in a wall near the toilet paper holder. This bullet was located
in the interior wall separating the master bathroom and master bedroom approximately nine inches
above the floor. The second bullet was fired at a slightly upward trajectory through the wall where
it then passed through the master bathroom and into the master
1
The interview was played at trial during the cross-examination of Sgt. Searle. It appears from
the transcript that while the audio recording of the interview was working, the video froze at certain
points.
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bedroom where it shattered a sliding-glass door. The bullet struck the sliding-glass door
approximately 72 inches above the floor.
{¶16} Under these circumstances, Bell’s sufficiency challenge is without merit. The State
presented evidence that Bell grew angry after an intense argument where Wife accused him of
marital infidelity. Wife stated at the scene that she walked away from the conversation and into
the master bedroom. Wife further indicated that Bell knew she was in the master bedroom. Bell
walked into a spare bedroom where there was a gun. Bell fired two gunshots in the direction of
the master bedroom room where Wife was located. Bell stated in his interview with police that he
knew Wife wanted to go into her bedroom and be alone. Though Bell later stated that he was not
certain of Wife’s location, he indicated that he assumed that Wife was in the bedroom. The
evidence further showed that Wife took cover in the bathtub after hearing a gunshot. Wife
indicated that the second shot was not fired until she was in the bathroom. This evidence, when
construed in the light most favorable to the State, was sufficient to demonstrate that Bell knowingly
attempted to cause physical harm to wife.
{¶17} Furthermore, Bell’s reliance on the Ohio Supreme Court’s decision in Mills is not
well taken. Mills involved a bank robbery where the defendant was convicted of a number of
serious crimes, including three counts of felonious assault involving three separate victims who
worked as tellers at the bank. Mills, 62 Ohio St.3d 357-360, 369. Mills entered the bank and fired
a gunshot that struck the counter in front of two tellers. Id. at 357. The Supreme Court concluded
that there was sufficient evidence to sustain felonious assault convictions in regard to two of the
three tellers, noting that “[Mills] actually fired a shot at the outset, hit [the first teller] over the head
with a gun, and held a gun to [the second teller’s] head.” Id. at 369. In determining that there was
not sufficient evidence to sustain a conviction with respect to the third teller, the Supreme Court
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observed that “[w]hen the initial shot was fired, [the third teller] was standing near a desk located
behind the teller counter and off to one side. She was not in the line of fire when the gunman
entered and hid underneath her desk during the remainder of the robbery.” Id.{¶18} Unlike the bank robbery scenario in Mills where there were multiple alleged
victims, the instant case concerns a domestic dispute involving only Bell and Wife. The State
demonstrated that Bell fired two gunshots in the direction of the room where Wife was located.
While the third teller in Mills was out of the way of the gunshot and thus “not in the line of fire[,]”
the same cannot be said in this case. Id. Here, the State presented evidence demonstrating that
Bell fired the shots either knowing Wife was located in the master bedroom or, at a minimum,
while operating under the assumption that Wife was in that bedroom. Accordingly, the evidence
does not support Bell’s assertion that his convictions must be reversed under the authority of Mills.
{¶19} Bell’s first assignment of error is overruled.
Manifest Weight of the Evidence
{¶20} Bell’s manifest weight argument largely mirrors his sufficiency challenge. Bell
maintains that the weight of the evidence supports the conclusion that he did not know Wife was
in the master bathroom at the time the shots were fired, and that Wife was never in the path of
either bullet.
{¶21} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
8
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶22} At trial, Bell testified that he and Wife had been married for 29 years and had two
children together. Around the time of the incident, Bell was working between 65 and 80 hours per
week and he was under a tremendous amount of stress. Bell had recently turned down an
opportunity to purchase the business and his relationship with new ownership was strained. Bell
further indicated that he suffers from restless leg syndrome, and, at the time of the incident, he had
recently stopped using kratom, a drug he took to calm himself at night.
{¶23} After a long day at work on November 6, 2020, Bell decided to take a different
route home. Bell had driven his Mustang that day, so he decided to take the highway. As he
neared his house, Bell noticed Wife driving the other direction. Wife circled back and confronted
Bell in the driveway. Wife had tracked Bell’s location on her phone. Wife accused Bell of marital
infidelity with a colleague. Bell testified that Wife was upset and slurring her words.
{¶24} Bell walked into the house and entered the spare bedroom. Bell testified that he
entered the spare bedroom prior to Wife entering the master bedroom. Bell acknowledged that he
was “ranting and raving” in the spare bedroom in light of the accusation of infidelity. Bell
indicated at trial that he was “full of anxiety, full of guilt, and full of hate for myself.” Bell testified
that he pulled a gun out of the drawer with the intent of committing suicide. Bell further testified
that when he put the gun to his head, he could not pull the trigger because he was a “coward.”
According to Bell, he then “turned and [] fired through the wall.” Bell testified that he did not
intend to fire a second shot, but the two shots went off in rapid succession. On cross-examination,
Bell faced a line of questioning regarding his understanding of Wife’s location at the time the shots
were fired. Bell insisted that he entered the spare bedroom first and that he did not see Wife enter
the master bedroom. Although Bell acknowledged that Wife “goes in the bedroom all the time[]”
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and that it was normal for her to enter the bedroom after arguments, he “did not know for sure”
that she was in the bedroom at the time the shots were fired.
{¶25} After hearing gunshots, Son entered the room to see what had happened. Bell and
Son went to the door of the master bedroom to check on Wife. Wife responded that she had called
9-1-1.2 Bell testified that he returned to the spare bedroom and took kratom. Bell then got in bed
and pulled the covers over his head. Bell admitted at trial that he lied during his initial interview
with police when he said the shots went off by accident. Bell suggested that he was under the
influence of kratom at the time of the interview.
{¶26} Ray Barnwell testified as a forensic expert on behalf of Bell at trial. Barnwell
testified that he was operating on the assumption that the two shots were fired in rapid succession
based on Bell’s interview with police. Barnwell did not conduct an independent interview with
Bell. Barnwell used laser technology to track the trajectory of the bullets. Barnwell testified that
the first shot traveled downward at an angle of 58 degrees while the second shot was fired upward
at an angle of 93 degrees. Barnwell explained that if the shots were fired in rapid succession, then
the downward shot necessarily would have been fired first. Barnwell testified that the fact that the
second shot was upward and slightly to the right was consistent with the notion that the shots were
fired in rapid succession. Barnwell explained that an inadvertent “double tap” second shot was a
possibility given the particular handgun at issue. On cross-examination, Barnwell was asked if he
had any reason to dispute Wife’s initial statement that the first shot was fired while she was in the
master bedroom and the second shot was not fired until she had made her way into the master
2
The 9-1-1 call was played at trial. A review of the call does not support Bell’s testimony that
Wife told Bell and Son that she had called 9-1-1. Wife was incredibly distraught during the course
of the call. Wife told the dispatcher that she thought Bell fired the shots on purpose and that she
did not want to exit the room until police had arrived.
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bathroom. Barnwell responded in the negative and said that issue was beyond his area of expertise.
However, Barnwell noted his belief that the angle of the second shot was not natural for an
intentional shot, which supported his opinion that the second shot was fired inadvertently.
{¶27} Significant portions of Wife’s testimony varied from her statements to police at the
scene. Although Wife initially indicated that she was upset because Bell came home late from
work, she testified that she was using an application on her phone to track Bell’s location and
noticed that Bell was in the vicinity of a hotel. Wife testified that she had consumed two margaritas
and her mind went “haywire.” Wife decided to get in her car and find Bell but she passed him on
the road just a short distance from their house. Soon thereafter, Wife confronted Bell in the
driveway and accused him of infidelity.
{¶28} Wife and Bell engaged in an argument where both sides were very angry. Wife
testified that she “basically said I had enough. And [Bell] did the same.” Bell entered the spare
bedroom and Wife entered the master bedroom. At trial, Wife stated, “I went back into my
bedroom, but it was actually the master bathroom because I kind of think of that as just one unit.
My go-to place when I get upset is to sit on the garden tub in the master bathroom.” While Wife
initially told police that she heard the first shot while standing near the bed in the master bedroom,
and then a second shot moments later after she had entered the bathroom, she offered a different
version of events at trial. Wife testified that, when she heard gunshots, she was thinking about
opening the sliding-glass door in the bedroom, but she was actually still in the bathroom. Wife
also testified that she heard a “[b]ang, bang[,]” meaning there was not a delay between the shots.
Wife acknowledged that her testimony differed from her statements to police. Wife indicated that
she was traumatized at the time of the incident and that she was acting out of self-preservation. At
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the time, Wife feared Bell had snapped. Son similarly testified that he ran into the spare bedroom
to check on Bell after hearing a “bang.”
{¶29} On the date of the incident Wife told Sgt. Harrison that Bell had never threatened
her during the course of their marriage. Wife reiterated this statement at trial and testified that she
did not believe that Bell was shooting at her. Wife testified that Bell had been a loving Husband
for 29 years and that he was simply under a great deal of stress. Wife read her written police
statement into the record during her testimony. In her statement, Wife indicated that she walked
away from the argument with Bell and into her bedroom. Wife’s description of the sequence of
events in her statements suggested there was a delay between the gunshots. On cross-examination,
Wife reiterated that she made misstatements at the scene because she had been drinking and she
had experienced a traumatic event.
{¶30} A thorough review of the record does not support Bell’s contention that this is the
exceptional case where the trier of fact clearly lost its way. Many of the critical factual issues in
this appeal turn on credibility determinations. From the date of the incident to trial, Wife changed
her story in a number of significant ways, including with respect to her location when the shots
were fired and whether there was a delay between the shots. Bell also changed his story, perhaps
most notably with respect to whether the shots were fired intentionally. We are mindful that “the
trier of fact was in the best position to evaluate the credibility of witnesses, and this Court will not
overturn the trial court’s verdict on a manifest weight of the evidence challenge simply because
the trial court chose to believe certain witnesses’ testimony over the testimony of others.” State v.
Thomas, 9th Dist. Summit No. 26893, 2014-Ohio-2920, ¶ 20, quoting State v. Ross, 9th Dist.
Wayne No. 12CA0007, 2013-Ohio-522, ¶ 16. Accordingly, Bell has not demonstrated on appeal
that his convictions resulted in a manifest miscarriage of justice.
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{¶31} Bell’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AND DENIED HIS RIGHT TO A FAIR TRIAL WHEN TRIAL
COUNSEL FAILED TO PROPERLY DIRECT EXAMINE AN EXPERT
WITNESS WHOSE TESTIMONY WOULD HAVE CORROBORATED
APPELLANT’S DEFENSE AND FAILED TO MAKE AN EFFECTIVE
CLOSING ARGUMENT[.]
{¶32} In his third assignment of error, Bell argues that trial counsel rendered ineffective
assistance. This Court disagrees.
{¶33} In order to prevail on a claim of ineffective assistance of counsel, Bell must show
that “counsel’s performance fell below an objective standard of reasonableness and that prejudice
arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998), citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Strickland
at 686. Thus, a two-prong test is necessary to examine such claims. First, Bell must show that
counsel’s performance was objectively deficient by producing evidence that counsel acted
unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,
Bell must demonstrate that but for counsel’s errors, there is a reasonable probability that the result
of the proceeding would have been different. Strickland at 694. This Court need not address both
prongs of the Strickland test if the appellant fails to satisfy either prong. State v. Ray, 9th Dist.
Summit No. 22459, 2005-Ohio-4941, ¶ 10.
{¶34} Bell contends that trial counsel rendered ineffective assistance by not engaging in
a more rigorous examination of defense expert Ray Barnwell. Bell suggests that trial counsel
should have questioned Barnwell regarding whether Wife was in the path of either bullet. Bell
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further contends that trial counsel’s closing argument was deficient because he neither mentioned
Wife’s testimony that Bell had never threatened her during their marriage, nor did he mention
Bell’s testimony that his only intent on the evening of the incident was to harm himself. Bell
further contends that defense counsel should have focused more on the trajectory of the bullets as
well as Barnwell’s testimony that the second shot was not fired intentionally.
{¶35} Bell’s argument regarding trial counsel’s examination of Barnwell falls within the
purview of trial strategy. “[T]here exists a strong presumption of the adequacy of counsel’s
performance, and that counsel’s actions were sound trial tactics.” State v. Hoehn, 9th Dist. Medina
No. 03CA0076-M, 2004-Ohio-1419, ¶ 45. “[D]ebatable trial tactics do not give rise to a claim of
ineffective assistance of counsel.” Id. During his testimony, Barnwell expressed his view that
while the first shot was fired intentionally, the second shot was fired inadvertently. Taking into
account Bell’s statement to police that the shots were fired in rapid succession, Barnwell opined
that the first shot was fired in a downward direction while the second shot was fired in a slightly
upward direction. As Wife’s exact location at the time the shots were fired was a disputed issue
at trial, and because Wife told police in her initial statement that there was a delay between the
shots, it is plausible that trial counsel declined to elicit testimony regarding whether Wife was in
the line of fire because he did not want to draw further attention to unfavorable evidence.
{¶36} Furthermore, Bell’s claim with respect to trial counsel’s closing argument is
without merit. Tactical decisions regarding closing argument, including the length of closing
argument, also fall within the realm of trial strategy. State v. Smith, 9th Dist. Summit No. 23542,
2007-Ohio-5119, ¶ 18. While trial counsel’s closing argument in this case was brief, it emphasized
the core defense theory that the State failed to demonstrate that Bell had the requisite intent to be
convicted of felonious assault. “Counsel chose a strategy that proved ineffective, but the fact that
14
there was another and better strategy available does not amount to a breach of an essential duty to
his client.” State v. Clayton, 62 Ohio St.2d 45, 49 (1980). Under these circumstances, we cannot
say that Bell has demonstrated that trial counsel’s performance was objectively deficient.
{¶37} The third assignment of error is overruled.
III.
{¶38} Bell’s assignments of error are overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
DAVID C. SHELDON, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.