State v. Rowser

[Cite as State v. Rowser, 2011-Ohio-575.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Julie A. Edwards, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : John W. Wise, J.
:
-vs- : Case No. 2010CA00065
:
:
LUCIUS M. ROWSER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2009-CR-0856
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO ANTHONY KOUKOTAS
Prosecuting Attorney 116 Cleveland Avenue, N.W.
Stark County, Ohio 808 Courtyard Center
Canton, Ohio 44702
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Rowser, 2011-Ohio-575.]
Edwards, P.J.
{¶1} Appellant, Lucius M. Rowser, appeals a judgment of the Stark County
Common Pleas Court convicting him of having weapons while under disability (R.C.
2923.13(A)(2)) and sentencing him to five years incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On May 29, 2009, Lora Matyas appeared at the Aultman Hospital
emergency room complaining of jaw pain from a bullet lodged in the lower cavity of her
mouth. She reported that appellant, who was her boyfriend, shot her in the face when
they were smoking crack and beat her. Dr. Teresa Wurst examined Matyas and noted
that Matyas had a one-inch scar on her left upper lip and her jaw was so swollen she
could barely open her mouth an inch. A CAT scan revealed a bullet lodged in the
muscle on the inside of her jaw. Metal fragments were lodged in her tongue, she had
broken teeth, and the area around the bullet was infected. Matyas had surgery to
remove the bullet.
{¶3} Dr. Wurst also discovered that Matyas could not bend her left arm. X-rays
revealed that the tip of the bone in her forearm had been snapped off. Because of
calcium deposits in the bone, Dr. Wurst determined the bone had been broken at least
three weeks earlier. Matyas reported that the injury occurred when appellant twisted
her arm behind her. Surgery was not an option and Matyas would have permanent
stiffness and pain in her elbow.
{¶4} Finally, Wurst discovered bruising and swelling on Matyas’ ankle and leg.
X-rays revealed a small chip fracture in the shin bone consistent with blunt force
Stark County App. Case No. 2010CA00065 3
trauma. Matyas stated that appellant had hit her leg with a hammer. Matyas was
discharged from the hospital thirteen days later.
{¶5} Canton Police obtained a search warrant for appellant’s home on Third
Street, S.,E., in Canton. At 5:00 p.m. on June 2, 2009, the SWAT team arrived at
appellant’s home to execute the warrant. When appellant failed to come out of the
residence after police announced their arrival, police broke out the front window. They
found appellant walking naked through the dining room and living room area of the
home. He was arrested and taken to the police station while police searched his home.
{¶6} Det. Kevin Clary confiscated a .32 caliber revolver with one round of live
ammunition and a spent casing, indicating that it had been fired one time. The hammer
on the revolver was back, ready to fire. The gun was swabbed for DNA. Officers also
found a hammer which was swabbed for DNA. A tooth, later identified as belonging to
Matyas, was found in a porcelain keepsake box.
{¶7} Michael Short, a firearms expert, examined the weapon and deemed it to
be operable. Short also identified the deformed bullet taken from Matyas’ jaw as one
fired from the revolver found in appellant’s couch. DNA testing identified appellant as
the source of DNA found on the revolver to a reasonable degree of medical certainty.
{¶8} Appellant was indicted by the Stark County Grand Jury on July 6, 2009,
with one count of kidnapping, three counts of felonious assault and one count of having
weapons while under disability. The case proceeded to jury trial. Appellant was
acquitted of kidnapping and all counts of felonious assault, and convicted of weapons
under disability. The court sentenced him to five years incarceration. He assigns two
errors on appeal:
Stark County App. Case No. 2010CA00065 4
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING
THE APPELLANT’S MOTION TO DISMISS WHERE THE INDICTMENT
ERRONEOUSLY ALLEGED A PRIOR CONVICTION FOR FELONIOUS ASSAULT.
{¶10} “II. THE JURY’S FINDING OF GUILTY WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.”
I
{¶11} In his first assignment of error, appellant alleges that the indictment for
having weapons while under disability should have been dismissed because he was not
convicted of felonious assault in 1997 when his conviction for felonious assault was
merged into his kidnapping conviction. He also argues use of two convictions
impermissibly allowed the jury to hear “other acts” evidence.
{¶12} The indictment alleges in pertinent part:
{¶13} “……as a continuous course of conduct from on or about the 1st day of
April in the year of our Lord two thousand nine, to on or about the 31st day of May in the
year of our Lord two thousand nine, at the County of Stark, aforesaid, did, not having
been relieved from disability, as provided in Section 2923.14 of the Revised Code, did
knowingly acquire, have, carry, or use a firearm, and said LUCIUS MARVIS ROWSER,
having been convicted of a felony offense of violence, to-wit: Kidnapping and Felonious
Assault, in Stark County Common Pleas Court (Case No. 1997CR0750, on or about
September 5, 1997 in violation of Section 2923.13(A)(2) of the Ohio Revised Code,
contrary to the statute in such cause made and provided, and against the peace of
dignity of the State of Ohio.” Indictment, July 6, 2009.
Stark County App. Case No. 2010CA00065 5
{¶14} It is undisputed that appellant was found guilty by a jury in September,
1997, of felonious assault and kidnapping. Appellant admitted this at trial in the instant
case and did not object to the testimony of Jodi German who testified that appellant was
found guilty of kidnapping and felonious assault in 1997. However, because in 1997 the
court merged the kidnapping and felonious assault convictions for purposes of
sentencing, he argues that he was only convicted of kidnapping.
{¶15} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
¶12, the Ohio Supreme Court stated that a conviction consists of a guilty verdict and the
imposition of a sentence or penalty. However, Whitfield also states that a defendant
may be found guilty of two allied offenses, but not sentenced on both of them. Id. at
¶17. “Because R.C. 2941.25(A) protects a defendant only from being punished for
allied offenses, the determination of the defendant's guilt for committing allied offenses
remains intact, both before and after the merger of allied offenses for sentencing.” Id. at
syllabus 3.
{¶16} Because the determination that appellant was guilty of both felonious
assault and kidnapping remained intact, despite the merger for sentencing, the court did
not err in failing to dismiss the indictment.
{¶17} Appellant also argues that because only one felony conviction was
necessary to prove weapons under disability, the trial court should have excluded
testimony concerning a second conviction because it was unduly prejudicial. This claim
is without merit. We first note that appellant not only failed to object to the jury being
instructed concerning both past offenses, counsel specifically requested that the jury be
instructed that the state must prove both prior offenses. Tr. 741. Further, appellant
Stark County App. Case No. 2010CA00065 6
testified that he was involved with the court system in trying to obtain custody of his
children from child protective services, testified that he had prior convictions for
felonious assault and kidnapping, and, although he denied having a gun, he admitted
that he knew he could not have a gun because of the past convictions. Tr. 573, 629,
654. In addition, his sister testified on appellant’s behalf at appellant’s insistence, and
testified concerning a jail conversation in which she accused appellant of pulling a gun
on his mother. Tr. 514. Thus, the other acts evidence complained of, as well as other
bad acts evidence, was introduced by appellant.
{¶18} Further, appellant cannot demonstrate prejudice from the admission of the
other acts evidence because he was acquitted of the charges of felonious assault and
kidnapping in the instant case.
{¶19} The first assignment of error is overruled.
II
{¶20} Appellant argues that the conviction is not supported by sufficient
evidence and was against the manifest weight of the evidence because he was not
“convicted” of felonious assault due to the merger of the conviction with kidnapping for
purposes of sentencing. He asserts that the jury was instructed that the essential
element of the disability in the case sub juice was prior convictions for felonious assault
and kidnapping. He argues that it would not have been possible for the evidence to
prove prior convictions for both offenses because the offenses had been merged for
sentencing.
{¶21} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
Stark County App. Case No. 2010CA00065 7
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,
485 N.E.2d 717.
{¶22} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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 (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶23} Appellant was convicted of violating R.C. 2923.13(A)(2):
{¶24} “(A) Unless relieved from disability as provided in section 2923.14 of the
Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
{¶25} (2) The person is under indictment for or has been convicted of any felony
offense of violence or has been adjudicated a delinquent child for the commission of an
offense that, if committed by an adult, would have been a felony offense of violence.”
{¶26} “Offense of violence” is defined by R.C.2901.01(A)(9):
{¶27} “(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11,
2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11,
2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11,
2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161,
Stark County App. Case No. 2010CA00065 8
of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1),(2), (3), or (4) of
section 2919.22 of the Revised Code or felonious sexual penetration in violation of
former section 2907.12 of the Revised Code.
{¶28} “(b) A violation of an existing or former municipal ordinance or law of this
or any other state or the United States, substantially equivalent to any section, division,
or offense listed in division (A)(9)(a) of this section;
{¶29} “(c) An offense, other than a traffic offense, under an existing or former
municipal ordinance or law of this or any other state or the United States, committed
purposely or knowingly, and involving physical harm to persons or a risk of serious
physical harm to persons;
{¶30} “(d) A conspiracy or attempt to commit, or complicity in committing, any
offense under division (A)(9)(a), (b), or (c) of this section.”
{¶31} R.C. 2923.13(A)(2) defines disability to include not just a conviction of a
felony offense of violence, but also an indictment for a felony offense of violence without
a finding of guilt, or an adjudication as a delinquent child for the same type offense.
Pursuant to Juv.R. 2(B), an adjudicatory hearing determines the child’s status as a
delinquent child. A determination of what action the juvenile court shall take with regard
to a delinquent child takes place at a dispositional hearing. See Juv.R. 2(M). R.C.
2923.13(A)(2) thus contemplates a disability based solely on a finding of delinquency
without disposition. It therefore follows that “conviction” within the meaning of the
statute could include a finding of guilt even though the offense is later merged for
sentencing purposes.
Stark County App. Case No. 2010CA00065 9
{¶32} As noted in assignment of error one above, the merger of his felonious
assault conviction with his kidnapping conviction for purposes of sentencing did not
vacate the jury’s finding of guilt of felonious assault. Whitfield, supra, syllabus 3. There
was no dispute that he was found guilty of both offenses and the court in 1997 merged
them for sentencing purposes. Appellant admitted that he was found guilty of both
offenses and that he was aware he was under disability from having a firearm. While
appellant denied having a firearm, an operable revolver was found in the couch
cushions in his residence and his DNA was found on the revolver. The victim testified
that he used a gun to shoot her in the jaw. The verdict is supported by sufficient
evidence and is not against the manifest weight of the evidence.
{¶33} In addition, kidnapping is a felony offense of violence and alone would
create a disability such that possession of a weapon is prohibited. Therefore, even
though the jury was instructed it needed to find previous convictions for both kidnapping
and felonious assault, a finding of a previous conviction for either would have supported
a conviction for Weapons Under Disability.
Stark County App. Case No. 2010CA00065 10
{¶34} The second assignment of error is overruled.
{¶35} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, P.J.
Farmer, J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1207
[Cite as State v. Rowser, 2011-Ohio-575.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
LUCIUS M. ROWSER :
:
Defendant-Appellant : CASE NO. 2010CA00065
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
_________________________________
JUDGES