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State v. Trimble

December 5, 2008


Civil Appeal from the Court of Common Pleas, Case No. 05 CR 0022. Judgment: Affirmed.

The opinion of the court was delivered by: Timothy P. Cannon, J.


{¶1} This case is submitted to this court on the record and the briefs of the parties. Appellant, James E. Trimble ("Trimble"), appeals the judgment entered by the Portage County Court of Common Pleas. The trial court dismissed Trimble's petition for post-conviction relief.

{¶2} In the fall of 2003, Trimble met Renee Bauer ("Bauer"). Thereafter, the two began a relationship. In 2004, Trimble and Bauer moved into a house together at 880 Sandy Lake Road. In addition, Bauer's seven-year-old son, Dakota Bauer ("Dakota"), lived in the residence. The residence was owned by Elizabeth Trimble Bresley ("Bresley"), who is Trimble's mother.

{¶3} On the evening of January 21, 2005, Bresley called Trimble on his cell phone. During the conversation, the doorbell rang at Trimble's residence. Bresley heard Trimble tell Dakota that the pizza delivery man was at the door, and Trimble gave Dakota money to pay for the pizza. Trimble ended the phone call so he could eat the pizza.

{¶4} Sometime after the phone call ended, Trimble went to the basement and retrieved an assault rifle from his locked gun cabinet. Then, he unlocked a separate ammunition cabinet and obtained bullets for the rifle. Trimble went back upstairs and encountered Bauer and Dakota in a bedroom. Trimble fired multiple shots at Bauer and Dakota. During this time, Bauer attempted to shield Dakota from the gunfire. Bauer was shot once in her head, 11 times in her back, and once in her right hand. Dakota received six gunshot wounds, including wounds to his face, torso, and hand. Some of the bullets that struck Dakota had traveled through Bauer's body. Both Bauer and Dakota died from their gunshot wounds.

{¶5} After killing Bauer and Dakota, Trimble changed his clothes, dressing in camouflage attire with long underwear underneath. He left the residence with two firearms, an AR-15 assault rifle and a nine millimeter pistol. In addition, he had several hundred rounds of ammunition for the weapons. Trimble walked away from the residence and into the woods, where he spent several hours eluding the police and shooting the guns in the direction of the officers.

{¶6} About an hour after her initial call to Trimble terminated, Bresley called Trimble again on his cell phone. During this call, Trimble told Bresley that he had shot Bauer and Dakota. After receiving this information, Bresley called her other son, Arthur Trimble ("Arthur"), and informed him about Trimble's comment. Arthur immediately called Trimble's cell phone. Trimble told Arthur that he had killed Bauer and Dakota. Arthur contacted the Brimfield Township Police Department about his conversation with Trimble. Officers were sent to Trimble's residence, and Bauer's and Dakota's bodies were found in a bedroom of the house.

{¶7} Steven Reichard lives on Ranfield Road in Brimfield Township. At approximately 9:00 p.m., Reichard heard a noise from the back of his property. He walked with his dog to the area of the noise to investigate. Reichard encountered an individual and told him to get off his property. The individual responded by telling Reichard to put his hands up, that he had a gun, and that he had killed two people. At that time, Reichard's mother came out of the house. The individual told Reichard and his mother that he would have to shoot them or at least take them hostage. Reichard responded that the individual could just turn and walk away. Eventually, the individual agreed and walked away from Reichard. After the individual left his property, Reichard called 9-1-1. Though Reichard could not identify the individual at trial, Trimble acknowledged the encounter in his statement to the police.

{¶8} Shortly after 11:00 p.m., Trimble believed he was cornered by police officers. At that time, he was outside of a duplex on Ranfield Road. Trimble broke into the residence through a back patio door. While three individuals resided in the residence, only Sarah Positano, a 22-year-old Kent State University student, was home at that time. Trimble found Positano in her bed, and he ordered her to get up and call 9-1-1.

{¶9} Positano placed a telephone call to 9-1-1. During this time, Trimble was instructing her to tell the dispatcher to keep the police officers away from the residence. At one point, Trimble talked directly to the dispatcher and told her he had a handgun pointed at Positano's head. Trimble warned that he had the trigger pulled and the hammer held back on the gun and that he would shoot Positano if the police shot him or attempted to enter the residence. Shortly after midnight, the 9-1-1 recording indicated that several gunshots were fired. In addition, Positano told the dispatcher that she had been shot. At that time, the 9-1-1 call ended.

{¶10} At approximately 7:30 a.m. the following morning, the SWAT team dispersed tear gas into Positano's residence. Thereafter, officers entered the residence and found Positano's body. Trimble was arrested without further incident.

{¶11} Trimble was charged with several offenses, including three counts of aggravated murder. Trimble pled not guilty to the charges, and a jury trial was held. The jury found Trimble guilty of the three aggravated murder counts, as well as other offenses. Following the jury's verdict, the matter proceeded to the sentencing phase. Trimble presented several witnesses in mitigation against the death penalty. The jury recommended the death penalty be imposed on all three counts of aggravated murder. The trial court adopted the jury's recommendation, sentencing Trimble to death by lethal injection on all three counts of aggravated murder. Additionally, the trial court sentenced Trimble on the remainder of his convictions. Trimble appealed his convictions and death sentences to the Supreme Court of Ohio. As of the release of this opinion, Trimble's direct appeal is still pending before the Supreme Court of Ohio.

{¶12} On May 29, 2007, Trimble filed a petition for post-conviction relief. The state filed a motion to dismiss Trimble's petition for post-conviction relief or, in the alternative, a motion for summary judgment. The trial court dismissed Trimble's petition for post-conviction relief without a hearing.

{¶13} Trimble also filed a motion for appropriation of funds for a positron emission tomography ("PET") scan. The trial court denied this motion.

{¶14} Trimble has timely appealed the trial court's judgment entry denying his petition for post-conviction relief. On appeal, he raises two assignments of error. We will address these assigned errors out of numerical order. Trimble's second assignment of error is:

{¶15} "The trial court erred when it denied appellant's motion for appropriation of funds for a positron emission tomography scan."

{¶16} This court his held that there is no constitutional right to expert assistance in a post-conviction proceeding. State v. Jackson, 11th Dist. No. 2004-T-0089, 2006-Ohio-2651, at ¶24, citing State v. Williams (Oct. 16, 1998), 11th Dist. No. 97-T-0153, 1998 Ohio App. LEXIS 4884. In Jackson,this court observed that R.C. 2953.21(I) provides the statutory right to counsel for indigent defendants who have been sentenced to death in post-conviction proceedings. Id. at ¶26. However, this court noted the difference between a constitutional right to counsel and a statutory right to counsel and held that a statutory right to counsel does not confer a right to the assistance of an expert. Id. at ¶27. Further, as the Tenth Appellate District has held, "[w]hile the statute explicitly provides for appointment of counsel in post-conviction proceedings when the petitioner has been sentenced to death, the statute nowhere provides a right to funding or appointment of expert witnesses or assistance in a post-conviction petition." State v. Conway, 10th Dist. No. 05AP-550, 2006-Ohio-6219, at ¶15. (Citations omitted.)

{¶17} Accordingly, since Trimble had no right to expert funding, the trial court did not err in denying his motion for public funding of a PET scan.

{¶18} Moreover, even if Trimble could show that he had a constitutional right to funding for the PET scan, he has not shown a particularized need for such testing. In his affidavit, Dr. Robert Smith stated:

{¶19} "Given Mr. Trimble's documented history of head trauma and methamphetamine use, the use of diagnostic neuro-imaging techniques, such as a quantitative MRI and/or PET scan, could have been helpful in documenting abnormalities in his brain structure and function."

{¶20} The Supreme Court of Ohio has held that "due process requires that funds be approved 'only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense.'" State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, at ¶73, quoting State v. Mason (1998), 82 Ohio St.3d 144, syllabus. In State v. Newton, the Supreme Court of Ohio held that the trial court did not abuse its discretion by finding that the defendant did not make a particularized showing based on his expert's conclusion that certain tests, including a PET study, "might provide 'potentially' useful information."*fn1 State v. Newton, at ¶72-73.

{¶21} In this matter, Dr. Smith's statement that a PET scan "could have been helpful" does not meet Trimble's burden of demonstrating a particularized showing.

{¶22} Trimble's second assignment of error is without merit.

{¶23} Trimble's first assignment of error is:

{¶24} "The trial court erred in dismissing Trimble's post-conviction petition when he presented sufficient operative facts to merit relief or, at a minimum, an evidentiary hearing."

{¶25} Ohio's post-conviction relief statute, R.C. 2953.21, provides, in part:

{¶26} "(A)(1)(a) Any person who has been convicted of a criminal offense *** and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States *** may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

{¶27} "***

{¶28} "(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.

{¶29} "***

{¶30} "(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending."

{¶31} "[T]he trial court is not required to conduct a hearing when a petition for post-conviction relief is filed." State v. Ramos, 11th Dist. No. 2007-G-2794, 2008-Ohio-3738, at ¶28, citing State v. Allen (Sept. 23, 1994), 11th Dist. No. 93-L-123, 1994 Ohio App. LEXIS 4274, at *4. "As the court in the State v. Jackson case stated, 'the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavit and the files and records of this cause.'" State v. Scheidel, 11th Dist. No. 2004-A-0055, 2006-Ohio-198, at ¶11, quoting State v. Jackson (1980), 64 Ohio St.2d 107, 110. Regarding this inquiry, this court has held:

{¶32} "For purposes of determining whether there are substantive grounds for post-conviction relief that would warrant a hearing, it is generally accepted that affidavits presented in support of the petition should be accepted as true. *** However, conclusory or self-serving affidavits presented by the petitioner in support of his claims, without more, will not satisfy the petitioner's evidentiary burden." State v. Pierce (1998), 127 Ohio App.3d 578, 586. (Internal citations omitted.)

{¶33} A reviewing court uses an abuse of discretion standard of review when reviewing a trial court's determination on a petition for post-conviction relief. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, at ΒΆ45. "'The term "abuse of discretion" *** implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" State v. White, 118 Ohio St.3d 12, ...

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