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State v. Gapen

Court of Appeals of Ohio, Second District

January 31, 2005

STATE OF OHIO Plaintiff-Appellee
v.
LARRY GAPEN Defendant-Appellant

(Criminal Appeal from Common Pleas Court) T.C. CASE NO. 00CR2945

Mathias H. Heck, Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, Attorney for Plaintiff-Appellee

Ruth L. Tkacz, Asst. State Public Defender, Attorney for Defendant-Appellant

OPINION

GRADY, J.

{¶ 1} Defendant, Larry Gapen, appeals from a summary judgment in favor of the State on Gapen's petition for postconviction relief, which was entered by the court without a hearing.

{¶ 2} The facts of this case are set forth in the trial court's Decision, Order and Entry granting the State's motion for summary judgment:

{¶ 3} "Larry Gapen and Martha Madewell were married in 1993. Martha had four children from prior relationships, Daniel Marshall, Jesica Young, Brooke Madewell and Billy Madewell. Gapen had two children from his second marriage, Charity and Jimmy Gapen. Gapen and Martha moved in together, with their children, in August 1993. Charity Gapen left the house in June 1997. Gapen and Martha began to have difficulties and the relationship between the two families deteriorated. Jimmy and Larry Gapen moved into Charity's apartment at 132 Brusman Drive in Vandalia, Ohio in April of 2000. Gapen and Martha continued to see each other periodically after their separation. However, they signed a separation agreement on June 16, 2000 in anticipation of terminating their marriage.

{¶ 4} "On June 24, 2000, Gapen broke into Martha's home. He stated that he entered the home so he could discuss their relationship with Martha. Gapen stated that he tied Martha's legs together because he was afraid she would leave. Subsequently, Gapen was charged with abduction. Gapen was released on bond, including electronic home detention at Charity's home as a condition of that bond. Also as a condition of bond, Gapen signed documents agreeing not to leave his daughter's home except when he was working. However, Gapen regularly left his daughter's home to do things other than to work, including visiting Martha and her children. Gapen also helped Martha move to a new house at 6255 Pheasant Hill Road in Dayton, Ohio. Gapen and Martha filed the Decree of Dissolution to terminate their marriage on September 14, 2000. On September 17, 2000, Martha brought home her ex-husband Nathan Marshall, and introduced him to her son, Daniel. At 7:30 p.m. on September 17, evidence at trial showed that Gapen was at Martha's home and saw her lying on the couch with an unfamiliar man. At 8:00 p.m., that same day, Gapen had dinner with his son Jimmy and Jimmy's girlfriend, Kacee Miller. Jimmy and his girlfriend stated that Gapen was in good spirits and that he did not express any sadness or anger over his relationship with Martha. Jimmy stated that Gapen acknowledged he knew Martha was seeing another man but he was 'okay with it.'

{¶ 5} "According to the testimony at trial, Gapen told police officers that he returned to Martha's house at 12:30 a.m. on September 18, 2000. Martha and her ex-husband, Nathan, were still asleep on the couch. Gapen took a chopping maul and beat Martha, Nathan Marshall and Jesica, inflicting fatal injuries. Gapen also later admitted to police that he had sexual relations with Martha after hitting her.

{¶ 6} "Martha's younger daughter, Brooke, was asleep in her bedroom located in the basement. She awoke to banging sounds coming from the next room. Nine-year-old Brooke opened her bedroom door and recognized Gapen. She saw that he had an axe and saw him hit something. Gapen saw Brooke and told her to go back to bed. Gapen told Brooke to get her clothes and go upstairs because her mother asked him to take her and her brother Billy to school the next day. Brooke got dressed, packed her bag and went upstairs.

{¶7 } "Martha's son Daniel was awakened by Jesica's cries in the next room. Daniel said the clock on his desk read 1:51 A.M. Daniel opened his bedroom door and saw Gapen in the hallway. Gapen told Daniel to go back to sleep, which he did. Gapen later revealed to the police that he attacked Jesica because she had been disrespectful to him and 'would talk back to him.' He also later told detectives that 'she was going to turn out just like them.' Gapen left the chopping maul in the upstairs bathroom and left the house with Brooke and Billy. Daniel got up again a few minutes later and noticed that the back door was open. He turned the lights on and found his mother and Nathan dead in the basement. He ran upstairs and saw Jesica bleeding, but still alive in her room. Daniel then called 911. The paramedics took Jesica to the hospital where she died from her injuries.

{¶8 } "The police began looking for Gapen after Daniel's 911 call. They followed Gapen's car to a donut shop in Vandalia. Officers surrounded Gapen's car, with guns drawn, and ordered him out of the car. He exited the car and was arrested at approximately 7:30 A.M. on Monday, September 18, 2000 without incident. Brooke and Billy were in the back of Gapen's car. Gapen stated he had driven them to the donut shop because Billy said he was hungry. After his arrest, Gapen described the events that had occurred that evening to Detectives Salyer and Elzholz." (Decision, Order and Entry, pp. 1-4).

{¶ 9} On October 18, 2000, Defendant was charged in a sixteen count indictment with escape, aggravated burglary, aggravated robbery, rape, and twelve counts of aggravated murder. There were four counts of aggravated murder pertaining to each of the three victims, and each count included five aggravating circumstance (death penalty) specifications.

{¶ 10} On June 16, 2001, following a jury trial, Defendant was found guilty of all of the indicted charges, except rape, and all of the death penalty specifications. Following the penalty phase of the trial, the jury recommended that Defendant be sentenced to death for the aggravated murder of Jesica Young committed with prior calculation and design. On all of the other counts of aggravated murder, the jury recommended that Defendant be sentenced to life imprisonment without the possibility of parole.

{¶ 11} On July 3, 2001, the trial court accepted the jury's recommendation and sentenced Defendant to death for the murder of Jesica Young, and life in prison without parole for the murders of Martha Madewell and Nathan Marshall. The trial court also imposed additional consecutive prison terms totaling twenty-five years on the underlying felony offenses.

{¶ 12} On direct appeal the Ohio Supreme Court dismissed the escape charge and the death penalty specifications relating thereto, but affirmed Defendant's other convictions and the sentence of death arising from the murder of Jesica Young. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548.

{¶ 13} On October 4, 2002, Defendant filed a petition for post-conviction relief pursuant to R.C. 2953.21. On December 16, 2002, the State filed a motion for summary judgment on the petition. On March 11, 2004, the trial court granted the State's motion and dismissed Defendant's postconviction petition without a hearing.

{¶ 14} Defendant timely appealed to this court from the dismissal of his post-conviction petition.

{¶ 15} FIRST ASSIGNMENT OF ERROR

{ΒΆ 16} "THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S POSTCONVICTION PETITION, WHERE HE PRESENTED SUFFICIENT OPERATIVE FACTS AND SUPPORTING EXHIBITS TO MERIT AN ...


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