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State v. Smith

Court of Appeals of Ohio, Fourth District

June 7, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
GERALD A. SMITH, Defendant-Appellant.

George J. Cosenza, Parkersburg, West Virginia, for Appellant.

James E. Schneider, Washington County Prosecutor, and Kevin A. Rings, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge.

{¶1} Gerald A. Smith appeals his conviction in the Washington County Court of Common Pleas after a jury found him guilty of one count of aggravated murder, two counts of aggravated burglary, two counts of aggravated robbery, grand theft of a firearm, grand theft of a motor vehicle, grand theft from an elderly person, and tampering with evidence. On appeal, Smith contends that (1) he was denied effective assistance of counsel, and (2) the trial court erred by denying his Rule 29 motion to dismiss the charge of tampering with evidence. Upon review, we find Appellant was not denied effective assistance of counsel. We further find the trial transcript contains evidence from which any rational trier of fact could have found the essential elements of tampering with evidence proven beyond a reasonable doubt. As such the trial court did not err in failing to grant the Crim.R.29 motion to dismiss. Accordingly, we overrule both assignments of error and affirm the judgment of the trial court.

FACTS

{¶2} Homer Rogers, age 66, was murdered in his home on Burnett Road in Cutler, Ohio, apparently while he slept. On the morning of June 19, 2010, he was found on a living room couch, covered by a blanket, with a knife wound to the right side of his neck. At the time of his death, Rogers' daughter Cynthia Lynn Rogers (hereinafter "Lynn") and her children also resided in the home on Burnett Road. Lynn had been separated from her husband, Gerald Smith, Appellant herein, for several weeks. Appellant was living in the marital home on Kenny Road, approximately 2-3 miles from the Rogers' home. Appellant and his wife had been married approximately 20 years and had a violent history.

{¶3} Soon after decedent's body was discovered, Appellant became the prime suspect in the murder investigation. That same day, decedent's red pickup truck was found in Athens County at the home of Allen Shane Lucas, Appellant's cousin and close friend. A knife with a reddish- brown substance which appeared to be blood on the blade was found in the center console of the red truck. Also on June 19th, Athens County 911 received a phone call from Shane Lucas saying Appellant was with him at Strouds Run State Park in Athens County, and Appellant had confessed to killing Homer Rogers. Later, on June 19th, Appellant was tased and apprehended at Stroud's Run State Park.

{¶4} Appellant was indicted in July 2010 for the aggravated murder of Homer Rogers; two counts of aggravated burglary; two counts of aggravated robbery; grand theft of a firearm; grand theft of a motor vehicle; grand theft from an elderly person, and tampering with evidence. Appellant entered pleas of not guilty by reason of insanity. In September 2010, Appellant was found not competent to stand trial, not capable of understanding the nature and severity of charges against him, and not capable of assisting his attorney due to his severe mental illness. In March 2011, Appellant was found competent to stand trial. In a status report regarding competency restoration pursuant to R.C. 2945.38(F), Dr. Dennish M. Eshbaugh, PhD, noted hospital records revealed Appellant had been considered to be malingering symptoms of mental illness and memory deficits. Appellant proceeded to trial on November 28, 2011.

{¶5} At trial, the State's first witness was Lynn Rogers. She testified on June 18, 2010, her son Cody Smith informed her Appellant was calling her father's house repeatedly. Cody said "Pap" [Homer Rogers] was getting upset and was going to call the law and have Appellant arrested if the calls didn't stop. Ms. Rogers testified she then called Appellant, sometime between 11:30 and 12:00 p.m., and told him to stop calling. During the course of that conversation, Lynn said to Appellant: "I'm not coming home. I'm done. I did it for 20 years. Our kids are grown and they can take care of themselves." Appellant then asked her where she was and who she was with. Lynn testified she responded to the effect it was "none of his fucking business where I was at and it wasn't none of his business who I was with." She then hung up the phone. Lynn stayed with a friend, Wayne McClain, that evening and did not return to her father's house until 7:30 a.m. on June 19th. Her father's red pickup truck was not there.

{¶6} Lynn Rogers also testified when she returned home, she took a shower and proceeded to prepare a Father's Day dinner for her father. Her father appeared to be asleep on the living room couch. Cody Smith was sleeping on a loveseat in the same room. Jessica Trus, Lynn's granddaughter, was sleeping on the floor in front of the television. Lynn also noticed her dog Bubba was in the house. She was surprised to see the dog because she had not seen him since she left her husband in April. Lynn and Jessica proceeded to take the dog back to Appellant's trailer, but dropped him off some distance from the trailer so Appellant would not see her. When she passed the trailer, she noticed her father's car trailer sitting in the driveway.

{¶7} Lynn and Jessica returned home. Lynn began working in the kitchen when her daughter Tana Rogers told her to "go check on Pap." When Lynn spoke to him and touched his foot, her father did not move and he was not breathing. Lynn testified she pulled his blanket down and blood was everywhere. She called 911 around 9:30 a.m.

{¶8} At trial, Lynn also described her "rocky" marriage to Appellant. She testified she stayed with him for the sake of the children and "so he wouldn't kill my dad." She testified he consumed alcohol heavily over the years. Lynn further testified to damaging statements allegedly made by Appellant. These statements describing threats and abuse were not provided in discovery nor objected to at trial. Essentially, Rogers testified during the course of their approximately 20 years of marriage, Appellant on various occasions shot at her; kicked, punched, bit, and slapped her; knocked her to the ground; and pulled her by her hair. She testified the abuse began in 1989. She further testified she left Appellant approximately 15 times over the years, but always returned because he threatened her or her family. She testified he said "Somebody in your family's going to fucking die." During her testimony, Lynn Rogers identified State's Exhibit B, a single knife; State's Exhibit C, a 22 revolver her father kept on the living room wall; and State's Exhibit D, two additional knives. Lynn Rogers testified Appellant and she bought the three knives in Athens County three months prior.

{¶9} Kimberly Schaefer, Homer Rogers' other daughter, also testified at trial. Ms. Schaefer and her family lived next door to the decedent. She testified at the time of his death, her father owned a red 2005 GMC Sierra pickup truck. The truck was also equipped with a topper, brush guard, and a trailer hitch. A car trailer was attached to the truck. Her father had been at her house on the night of June 18, 2010, until approximately 11:30 p.m. When he left and walked home, his truck and trailer were in his yard. When she awoke around 7:15 a.m. the next morning, she noticed her father's red pickup truck was gone. During her testimony, Ms. Schaefer also identified her father's 22 revolver.

{¶ 10} The State also presented testimony from Robert Shott, a forensic pathologist with the Montgomery County Coroner's Office. Dr. Shott performed the autopsy of Homer Roger's body and determined that the cause of death was a single sharp-force injury to the neck. He described a stab wound on the right side of the decedent's neck, approximately one-half inch. He testified the wound severed the spinal cord at the C-1 and C2 levels, which in effect, lead to instant and complete paralysis of the body below the neck. In Dr. Shott's opinion, the stab wound was likely caused by a single-edged knife, with only one sharpened side. Dr. Shott opined that State's Exhibit B, a box containing a single-edged knife, was consistent with the type of weapon that could have caused the wound on Homer Rogers. Dr. Shott also opined that for the injury to get through the decedent's skin, muscle, and bones, it would have taken a significant amount of force. Dr. Shott testified that there was no evidence of injuries on the decedent's hands or forearms, or any defensive- type wounds which would indicate a struggle or fight with another person.

{¶ 11} The next State's witness was Bryan White with the Ohio Bureau of Criminal Investigation (BCI). He investigated decedent's red truck at the Sheriffs Office. A wooden-handled knife with a five-inch blade was found in the center console of the truck. It had a reddish- brown substance that was later positively identified to be blood. The knife was photographed, packaged, and submitted to BCI for further examination. Mr. White identified the knife as State's Exhibit B.

{¶ 12} Tim Jenkins also testified on behalf of the State. Mr. Jenkins is a distant relative of Appellant. He testified to seeing Appellant at a party in Chesterhill, Ohio (Morgan County) around 12:30 or 1:00 a.m. on June 19th. Mr. Jenkins saw Appellant drive up in a Ford diesel truck with a brush guard. Mr. Jenkins testified Appellant appeared to have been drinking. He was able to walk across a flat area 50-75 feet to get to Jenkins. He testified Appellant did not appear so impaired that he could not drive.

{¶ 13} Scott Parks, a detective with the Washington County Sheriffs Office also testified he was at the Rogers' home to assist with the investigation. He was assigned to stand by the crime scene and coordinate with BCI agents. He arrived at approximately 11:25 a.m Detective Parks testified although there was a bit of blood spatter on the wall, there were no signs of struggle in the house.

{¶ 14} The State presented testimony from Emily Draper, a forensic scientist with Ohio BCI. She performed DNA testing on samples obtained from Gerald Smith and Homer Rogers. Ms. Draper testified she gave her computer printout as to the DNA samples tested to Raymond Peoples, another forensic scientist with Ohio BCI.

{¶ 15} Raymond Peoples next testified when the evidence samples first arrived at BCI, Peter Tassi, Jr., a forensic biologist, examined them and prepared a report. [1] Mr. Peoples obtained the Tassi report and the computer printout from Ms. Draper for review. At that point, Mr. Peoples performed DNA testing on two samples, one from the blade of the knife and one from the handle of the knife. He testified the DNA profile from the blade of the knife was a mixture. The major profile in the mixture was consistent with Homer Rogers' DNA; the minor profile was consistent with Gerald Smith's DNA. The DNA profile from the handle of the knife was consistent with Gerald Smith's DNA sample.

{¶ 16} The jury also heard testimony from Allen "Shane" Lucas, Appellant's first cousin. Shane Lucas testified he was aware that Appellant had marital problems. As a result, Appellant had stayed overnight at the Lucas home in Athens County in the past.

{¶ 17} Shane Lucas further testified on June 19, 2010, Appellant showed up at the Lucas home around 4:30 -5:00 a.m Appellant wanted to get beer. He indicated a friend had dropped him off Shane Lucas could see Appellant had already been consuming and he described Appellant as "pretty tanked." Shane Lucas recalled Appellant had recently been in a motorcycle accident and had injured his ribs and one leg. Appellant was walking with a limp.

{¶ 18} Around 5:30 a.m., Shane Lucas and Appellant bought three 6-packs of beer and drank it at the Lucas house. The Lucas family had planned to go boating that day at Stroud's Run State Park. When the Lucases left to go boating before noon, Appellant went with them. While out on water, Shane Lucas's cousin, Bo Lucas of Chillicothe, called. Cheryl Lucas, Shane's wife, answered the phone. Bo Lucas informed her "Gerald killed Homer." Cheryl then handed Shane the phone and Bo Lucas gave him the same information. Cheryl Lucas hung up the phone. During this time, Appellant had been passed out on the front of the boat. Cheryl Lucas woke up Appellant and asked him "Gerald, did you kill Homer?"

{¶ 19} Then, according to Shane Lucas's testimony, Appellant confessed to stabbing Homer Rogers. Appellant told them that Lynn had called Appellant and wanted him to come to her father's house. He went to the home, where Homer Rogers was waiting for him with a gun. Appellant told the Lucases they fought over the gun. Appellant admitted either hitting or stabbing Mr. Rogers with something. He then told the Lucases he "picked him up, put him on the couch, and covered him up." Shane Lucas testified Appellant was crying when he confessed.

{¶ 20} At this point, Shane Lucas took his boat to shore. Shane Lucas and Appellant got off the boat. Shane Lucas took Appellant to the Stroud's Run campground. At this point he noticed Appellant had a revolver. Mr. Lucas then called Athens 911 and advised the dispatcher that Appellant killed Homer Rogers. Shane Lucas specifically told police Appellant admitted stabbing or hitting Rogers in the neck.

{¶ 21} Shane Lucas also testified he later learned Appellant had driven decedent's red pickup truck and parked it on his property. Appellant's driveway is 60 yards or longer, from Salem Road. His house is located at the top of the driveway. Beyond the Lucas house is a field. Decedent's truck was parked over a trash pile, about 30 feet from the house. Shane Lucas testified Appellant had driven the decedent's truck before but would park in the general area of the house, not up into the woods.

{¶ 22} The next State's witness was Detective Mark Johnson from the Washington County Sheriffs Office. Detective Johnson testified that when he walked through the Rogers' house, he saw no signs of struggle. There were no signs of gunshot holes or a gun being fired. Detective Johnson identified State's Exhibit H-1, a photograph of the decedent's 22 revolver with six rounds. He testified this was the gun Appellant had in his possession before he was taken into custody.

{¶ 23} Detective Johnson further testified Chief Deputy Mark Warden (hereinafter "Warden") and he drove to the Lucas residence. The Lucas residence is nearly 100 yards off Salem Road. When they arrived, they found the decedent's red truck driven up over a trash pile and down into a brushy wooded area. Detective Johnson testified the truck was parked 30-40 yards from Shane Lucas's residence and he did not think it could be seen from Salem Road. Detective Johnson did not see the truck until it was pointed out to him. Detective Johnson drove the truck off the trash pile and down to a flat spot so a tow truck driver could transport it to the Washington County Sheriffs Office. He identified State's Exhibits H-2 and H-3, photographs of the truck and where it was found. These photographs demonstrate the pickup truck was partially hidden from view.

{¶ 24} While inside the truck, Detective Johnson saw the knife that was found in the center console. Detective Johnson testified he later obtained pictures of the knife from BCI. He showed the photographs to Lynn Rogers. She identified the knife in the photographs as being the knife Appellant and she had previously purchased. A week or so later, Lynn took Detective Johnson to Appellant's trailer and showed him the other two knives.

{¶ 25} The State's final witness was Chief Deputy Mark Warden. Warden testified when he responded to the Rogers' residence, he took control of the crime scene. He met with the first responding officer and obtained the initial information. Warden called out other officers for assistance and walked through the house. Warden also learned that Cody Smith's whereabouts were unaccounted for and the family present at the scene suspected Appellant. Warden sent two deputies to Appellant's residence, looking for Cody. The deputies advised that decedent's car trailer was at Appellant's residence. Those deputies were then advised to secure Appellant's residence as a crime scene. Eventually, Warden and Detective Johnson proceeded to the Lucas residence. While en route, the two received a phone call from Athens County 911 informing they had received a phone call from Shane Lucas. Shane Lucas had advised 911 that Appellant was with him at Stroud's Run State Park, and Appellant had confessed to killing Homer Rogers.

{¶ 26} Warden testified when they arrived at Stroud's Run, they were informed Appellant had a handgun. They were further advised Appellant had told Shane Lucas he was going to "go out by police, " i.e. "suicide by cop." The two first interviewed Shane Lucas. Mr. Lucas gave them precise information, that Appellant had fought with Homer Rogers and stabbed him

{¶27} At Strouds Run, Appellant was sleeping on a park bench. A 22 revolver with six live rounds was under his head. Before Warden and Detective Johnson could speak to him, Appellant was tased and taken into custody by Athens law enforcement officials. The weapon was secured. Detective Johnson Mirandized Appellant and started to interview him. Shortly into the interview, Appellant indicated he wanted to talk to Mark Warden. Warden walked over, asked him if he understood his Miranda rights, and began questioning him. The entire interview with Detective Johnson and Chief Deputy Warden was recorded. The interview is rambling, but Appellant reiterated:

1) he did not know where he was at, or where he had been the previous night;
2) he did not know what they were talking about when they asked him about a gun;
3) he did not remember being at [Rogers'] house;
4) he did not know what happened at [Rogers']house;
5) he did not know what happened to ...

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