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State v. Gultice

Court of Appeals of Ohio, Second District

June 21, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
JOHN R. GULTICE, JR., Defendant-Appellant

(Criminal Appeal from Common Pleas Court) Trial Court Case No. 12-CR-56.

STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg. #0082881, Attorney for Plaintiff-Appellee.

JAY A. ADAMS, Atty. Reg. #0072135, Attorney for Defendant-Appellant.

OPINION

FAIN, P.J.

{¶ 1} Defendant-appellant John R. Gultice, Jr., appeals from his conviction and sentence for Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree; Abduction, in violation of R.C. 2905.02(A)(2), a felony of the third degree; and Criminal Damaging, in violation of R.C. 2909.11(A)(1), a misdemeanor of the second degree.

{¶ 2} Gultice contends that the trial court erred by denying his request to instruct the jury concerning Aggravated Assault, an offense of inferior degree to Felonious Assault. He also contends that his trial counsel was ineffective for having failed to elicit testimony at a suppression hearing that Gultice was living at the premises where the search occurred, so as to give him standing to challenge the constitutionality of the search. Finally, he contends that his trial counsel was ineffective for having failed to object to certain questions put to the State's witnesses.

{¶ 3} We conclude that the evidence in the record would not permit a reasonable jury to have found that Kilcoyne did anything constituting serious provocation reasonably sufficient to incite Gultice into using deadly force. Therefore, the trial court did not err in declining to give the requested instruction on Aggravated Assault.

{¶ 4} Because the trial court did reconsider the suppression issue after trial testimony provided a basis for finding that Gultice did, in fact, live at the premises where the search occurred (and where the assault allegedly took place), we conclude that even if Gultice's trial counsel's failure to have elicited testimony along these lines at the suppression hearing were deemed to have fallen below an objective standard of representation, that failure was not sufficiently prejudicial to merit reversal.

{¶ 5} Finally, we conclude that trial counsel was not ineffective for having failed to object to various questions put to the State's witnesses.

{¶ 6} Accordingly, the judgment of the trial court is Affirmed.

I. After Driving his Girlfriend Home from an Evening of Celebration, Gultice Runs Amok, Injuring his Girlfriend, and Damaging her Apartment

{¶ 7} Gultice was in a relationship with Hilary Kilcoyne, who lived in a two-floor townhouse apartment in Beavercreek, Ohio. She had been in Biloxi, Mississippi for about a month, training for her job. She returned on February 4, 2012, having driven home from Mississippi.

{¶ 8} To celebrate Kilcoyne's return, Gultice drove her to the Round Table, evidently a place where alcoholic beverages and food were served. They arrived at about 8:00 in the evening. Later, friends arrived. Gultice and Kilcoyne stayed at the Round Table until about 11:00, when they left to go to All Sports, a similar establishment, across the street from the Greene County Courthouse, in Xenia. They stayed there "a couple of hours."

{¶ 9} The testimony of the State's witnesses and Gultice's witnesses diverged substantially on the issue of how much alcohol Gultice and Kilcoyne, respectively, consumed during the course of the evening. According to the State's witnesses, Gultice consumed many beers, while Kilcoyne had relatively few; according to Gultice's witnesses, Kilcoyne consumed many beers, and at least some "shots, " while Gultice had only two or three beers at the Round Table, and no more than that many, or possibly fewer, at All Sports.

{¶ 10} There was also a divergence in the testimony concerning the attitude of Kilcoyne and Gultice toward each other during this time. And there were some other differences in the testimony concerning what occurred while Kilcoyne and Gultice were at the Round Table and All Sports, but none of these differences have much materiality to the issues in this appeal. There was no physical violence between Kilcoyne and Gultice until after Gultice drove Kilcoyne home.

{¶ 11} According to Kilcoyne, when they got back to her apartment, she just wanted to go to bed to sleep, while Gultice wanted to talk. When she tried to shut the door to her bedroom, Gultice was "screaming, yelling, enraged and pushing against the door." Gultice "kicked the door all the way through the doorframe. It went into the laundry room and broke the frame and damaged the door."

{¶ 12} Kilcoyne told Gultice to stop damaging her things, but that just enraged him more, and he began to punch holes in doors and walls. She testified that: "There were four doors damaged, and there was about three or four holes punched in the guest room walls."

{¶ 13} Kilcoyne retreated into the bathroom, closed and locked the door, and sat down against the door. According to her, he was shouting obscenities at her, and she was afraid he would kill or hurt her.

{¶ 14} Gultice then began kicking the bathroom door, eventually "kicking the whole bottom very forcibly out of the door, " while she was sitting with her back against it. Gultice's kicking in the bottom of the bathroom door while she was sitting on the floor against it "hurt" her.

{¶ 15} Kilcoyne got up from the bathroom door. Gultice grabbed her, and "slammed" her into the bathtub, a hard, ceramic type bathtub, knocking the wind out of her. Gultice then grabbed her again, "pushed" her "out of the tub, " and "hit" or "threw" her into the toilet. When she was "shoved" into the toilet, the toilet seat was broken off

{¶ 16} Kilcoyne managed to crawl back into the bedroom. Gultice "smashed" her head into a nightstand, causing her head to bleed.

{¶ 17} Kilcoyne was now trying to find her cell phone. When she found it, Gultice grabbed it from her and "smashed it into the bathroom floor, " causing it to break into at least two pieces.

{¶ 18} Gultice then found Kilcoyne's keys, and threw them against the wall, "saying that he was going to break my ...


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