State v. Sanders

[Cite as State v. Sanders, 2013-Ohio-789.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 2012CA00042
JOHN I. SANDERS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR1297
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 19, 2013
APPEARANCES:
For Appellant: For Appellee:
GEORGE URBAN JOHN D. FERRERO, JR.
116 Cleveland Ave. NW, Suite 808 STARK COUNTY PROSECUTOR
Canton, OH 44702 KATHLEEN O. TATARSKY
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
[Cite as State v. Sanders, 2013-Ohio-789.]
Delaney, J.
{¶1} Appellant John I. Sanders appeals the February 7, 2012 judgment entry
of the Stark County Court of Common Pleas convicting and sentencing him upon one
count of murder and with a repeat violent offender specification.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose in the early morning hours of August 25, 2011 at the
Orchard View Apartments located at 707 5th Street NE, Canton, better known as “the
Ranch.” The Ranch has three floors, consisting of 48 apartment units; most units
consist of one room and each floor has shared common bathrooms. Managers of the
Ranch testified that loud, belligerent arguments during the night are not uncommon
among the tenants.
{¶3} The following testimony was adduced at trial.
Melee and Assault at the Ranch
{¶4} Around midnight on August 25, 2011, Robert “Leo” Linkus (“Linkus”) and
his girlfriend Barb Fisher (“Barb”), both tenants of the Ranch, were drinking and
arguing on the back deck that faces Sixth Street Northeast. Both were intoxicated and
their loud argument attracted the attention of a number of residents.
{¶5} Aaron Fisher (“Aaron”) is Barb’s son and a former tenant of the Ranch.
His friend, Mark Mason (“Mason”), was also a former tenant. Aaron had been evicted
and was no longer permitted inside the building. Aaron and Mason observed the
argument between Linkus and Barb and were angry because Linkus allegedly pushed
Barb.
Stark County, Case No. 2012CA00042 3
{¶6} John Perault is another tenant of the Ranch and was on the deck with
Linkus and Barb during the argument. Perault observed Aaron and Mason walk up
toward the building from the sidewalk and saw them talking to the pair.
{¶7} Molly and Kevin Elbert are a married couple who work as live-in
managers of the Ranch. Around midnight, they heard a loud disturbance at the back
door of the building with tenants yelling and screaming. The Elberts went into the hall
and saw Linkus attempting to enter the building through the back door from the deck
with Aaron and Mason following closely behind him. Molly told Aaron and Mason they
could not come in and that the police were on their way. Mason said “I don’t f***ing
care if the cops are coming,” but Molly testified his manner was not threatening or
aggressive.
{¶8} Aaron and Mason turned around and walked away from the building, but
only went a short distance down the sidewalk.
{¶9} Linkus and Barb resumed their argument and the Elberts continued their
efforts to calm them down. A number of residents watched from windows or from the
deck itself.
{¶10} In the meantime, appellant was in his apartment playing a video game
with his live-in girlfriend, Viola France. They heard the commotion and went out to
investigate but returned to their apartment. The noise resumed, and this time
appellant left the apartment with a baseball bat.
{¶11} A number of witnesses testified that Mason was mounting the stairs to
the deck with his hand on the rail when appellant came out of the back door and
struck him on the head with the baseball bat. The assault happened very quickly.
Stark County, Case No. 2012CA00042 4
The Elberts were breaking up the fight between Barb and Linkus and didn’t see the
assault take place. Perault saw appellant swing the bat and strike Mason on the top
of his head.
{¶12} In the aftermath of the assault, Mason lay on the sidewalk. Molly Elbert
tapped him on the shoulder with no response; she could see his head was wounded.
{¶13} Perault stated that after striking Mason, appellant immediately went back
into the building. A number of witnesses saw appellant and France flee from the
building in appellant’s truck, so quickly that they spun gravel as they pulled out.
Victim Eventually Succumbs to Significant Head Injury
{¶14} Paramedics and police arrived at the scene. Paramedics noted a deep,
head wound approximately 6 centimeters wide. Mason was nonresponsive and taken
to Aultman Hospital. He eventually was moved to a nursing home.
{¶15} Mason never recovered consciousness and lingered in a coma for over
three months. During that time, his physical condition deteriorated and he eventually
succumbed to his injuries.
{¶16} Stark County Deputy Coroner Dr. Orlino performed an autopsy on Mason
and described a large defect to the right side of his cranium which created a subdural
hematoma, or hemorrhage in his brain, which required surgical intervention to lessen
the pressure in Mason’s skull. Orlino explained that in the three months he lingered
before his death, Mason was in a vegetative state. The cause of his death was
complications of blunt trauma to the head by means of a baseball bat; the coroner’s
ruling was death by homicide. Orlino also noted that upon admittance to the hospital
on August 25, Mason had a blood alcohol level of 0.159.
Stark County, Case No. 2012CA00042 5
Appellant’s Actions after the Assault
{¶17} Meanwhile, immediately after striking Mason in the head with the bat,
appellant quickly went back into the building. Viola France testified that appellant
returned to their apartment with the baseball bat and told her to get her things
because they were leaving. He asked her if she heard a “whomping sound” and she
said no. The pair left the apartment in a hurry and went to two grocery stores. They
returned to the building after the police left, but did not park in the parking lot; instead
they parked in the grass underneath the window of their apartment.
{¶18} Appellant came into the Elberts’ office several times after the police were
gone and made “strange comments,” telling the Elberts they didn’t see anything, no
one saw him with a bat, and he didn’t strike anyone with a bat.
{¶19} The day after the assault, appellant told Linkus to tell the police he didn’t
see anything. Appellant and France went to PSC Metals, a scrap metal dealer, to
drop off scrap they had accumulated. Appellant discarded the bat in a dumpster at
PSC. Upon their return to the Ranch, appellant again parked his truck below their
apartment window and began lowering their belongings into the truck.
The Investigation
{¶20} Detective Jerry Fuelling investigated the assault on Mason. Upon
interviewing the witnesses, he identified appellant as the suspect. Fuelling spoke to
France and she revealed the location of the bat, which was recovered from the PSC
Metals dumpster.
{¶21} Fuelling obtained a statement from appellant. He claimed he was in his
apartment with France when he heard the disturbance outside. He said he initially
Stark County, Case No. 2012CA00042 6
grabbed a baseball bat and went out to investigate, but the two males who were
causing a problem had left. Appellant claimed he returned to his apartment, heard the
arguing start again, and went back out to check, this time without the bat. Appellant
claimed Mason came up the steps toward him in an aggressive manner. He said one
of Mason’s hands was on the rail but he believed Mason had something in his other
hand. Appellant claimed he struck Mason with his fist and Mason stumbled on the
step but caught himself. Appellant then returned to his apartment and left with France.
{¶22} A criminalist from the Stark County Crime Lab examined the bat and
discovered Mason’s DNA on its barrel.
Indictment, Trial, and Sentencing
{¶23} Appellant was charged by indictment with one count of felonious assault
pursuant to R.C. 2903.11(A)(1) and (A)(2) with a repeat violent offender specification
pursuant to R.C. 2941.149. Upon the death of the victim, appellant was re-indicted by
superseding indictment for one count of murder pursuant to R.C. 2903.02(B) with a
repeat violent offender specification and one count of felonious assault pursuant to
R.C. 2903.11(A)(1) and/or (A)(2), also with a repeat violent offender specification.
{¶24} The case proceeded to jury trial. Appellee dismissed Count Two,
felonious assault, and the repeat violent offender specification was tried to the court.
Appellant was found guilty as charged and was sentenced to an aggregate prison term
of 25 years to life.
{¶25} Appellant appeals from the judgment entry of conviction and sentence.
{¶26} Appellant raises two Assignments of Error:
Stark County, Case No. 2012CA00042 7
{¶27} “I. WHETHER APPELLANT’S CONVICTIONS WAS (sic) AGAINST
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE?”
{¶28} “II. WHETHER APPELLANT WAS DENIED HIS RIGHTS TO DUE
PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE
HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE?”
I.
{¶29} In his first assignment of error, appellant argues his murder conviction is
not supported by sufficient evidence and is against the manifest weight of the
evidence. We disagree.
{¶30} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “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.”
Stark County, Case No. 2012CA00042 8
{¶31} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra,
78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of
the evidence and ordering a new trial should be reserved for only the “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
{¶32} Appellant was convicted of one count of murder1 pursuant to R.C.
2903.02 (B), which states: “No person shall cause the death of another as a
proximate result of the offender's committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of
section 2903.03 or 2903.04 of the Revised Code.” The underlying offense in this case
is felonious assault, R.C. 2903.11(A)(1) and/or (A)(2), which state in pertinent part,
“No person shall knowingly do either of the following: [c]ause serious physical harm to
another or to another's unborn; [c]ause or attempt to cause physical harm to another
or to another's unborn by means of a deadly weapon or dangerous ordnance.”
{¶33} Appellant’s argument goes entirely to the credibility of state’s witnesses.
He notes the testimony of the eyewitnesses was contradictory in its details and that
several of the witnesses had motive to lie or were admittedly intoxicated when they
witnessed the assault. The weight of the evidence and the credibility of the witnesses,
1
Appellant does not challenge the trial court’s finding that he is a repeat violent offender,
other than to assert the specification must fail if the underlying conviction is reversed.
Stark County, Case No. 2012CA00042 9
though, are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,
231, 2002-Ohio-2126, 767 N.E.2d 216. Moreover, the minor contradictions appellant
points out pale in comparison to the overwhelming evidence that appellant struck
Mason with the bat, returned to his apartment, disposed of the bat at PSC Metals, and
later admitted striking Mason (albeit with his fist).
{¶34} We have thoroughly reviewed the record and find appellee presented
overwhelming evidence in support of appellant’s guilt. His murder conviction is not
against the manifest weight of the evidence and is supported by sufficient evidence.
{¶35} Appellant’s first assignment of error is overruled.
II.
{¶36} In his second assignment of error, appellant argues defense trial counsel
was ineffective in failing to demonstrate appellant’s “poor relationship” with manager
and witness Kevin Elbert, based upon Elbert’s alleged conviction for gross sexual
imposition and alleged status as a sexual predator. We disagree.
{¶37} To succeed on a claim of ineffectiveness, a defendant must satisfy a
two-prong test. Initially, a defendant must show that trial counsel acted incompetently.
See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing
such claims, “a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350
U.S. 91, 101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not
Stark County, Case No. 2012CA00042 10
defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question
is whether counsel acted “outside the wide range of professionally competent
assistance.” Id. at 690.
{¶38} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
{¶39} First, we note neither party has directed us to the alleged conviction of
Kevin Elbert in the record of this case. A direct appeal is not the appropriate forum in
which to challenge a matter that is not in the record. State v. Portillo, 5th Dist. No.
2010 AP 01 0002, 2011-Ohio-52, at ¶ 58.
{¶40} Assuming arguendo Elbert does have a 1995 conviction for gross sexual
imposition, trial counsel’s failure to raise this matter was not ineffective. As appellee
points out, evidence of a witness’ conviction for a crime which is more than 10 years
old is prohibited by Evid.R. 609(B). Appellant makes no argument to establish this
evidence would have been admissible.
{¶41} Moreover, even if we assume trial counsel was deficient in not raising
the matter of the conviction and attempting to introduce it at trial to discredit Elbert, we
find appellant failed to show counsel’s alleged error resulted in prejudice. Appellant
makes no showing that even if Elbert’s credibility had been put at issue, the result of
the proceeding would have been any different. Elbert was not a linchpin witness. The
overwhelming evidence of appellant’s guilt is such that any alleged bias on the part of
Stark County, Case No. 2012CA00042 11
a single witness, who did not even claim to have seen the assault, would not have
resulted in a different outcome at trial.
{¶42} We find appellant did not receive ineffective assistance of counsel and
his second assignment of error is overruled.
{¶43} Having overruled both of appellant’s assignments of error, the judgment
of the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb
[Cite as State v. Sanders, 2013-Ohio-789.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN I. SANDERS :
:
: Case No. 2012CA00042
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE