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State v. Oester

Court of Appeals of Ohio, Fifth District

June 24, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
AARON MICHAEL OESTER, Defendant-Appellant

Appeal from the Stark County Court of Common Pleas, Case No. 2011CR0989

For Plaintiff-Appellee: JOHN D. FERRERO, PROSECUTING ATTORNEY

For Defendant-Appellant: KRISTINE W. BEARD, STARK COUNTY, OHIO RENEE M. WATSON Assistant Prosecuting Attorney Appellate

JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Hoffman, P.J.

{¶1} Defendant-appellant Aaron Michael Oester appeals his conviction and sentence entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 1, 2011, Shannon Crolley and her mother, Doris Hoagland, drove to Canton, Ohio to meet Appellant Michael Oester and two other men at the Kentucky Fried Chicken location on Tuscarawas Avenue in Canton. Crolley knew Appellant from her previous experience in a drug rehabilitation facility, and had previously contacted him several times via text message.

{¶3} On that date, Appellant put Crolley in contact with Joseph Berry, otherwise known as "J" or "Cuz, " to purchase 2 ounces of marijuana for $200.00. However, after leaving Crolley and Hoagland, "J" took the $200.00 and did not return with the marijuana.

{¶4} Crolley and Hoagland drove back to the KFC to find Appellant, telling him "J" had stolen the money. Appellant got in the car with the women and took them to "J's" house. They travelled around Canton looking for "J", never finding him. They eventually dropped Appellant off, and started to return home.

{¶5} On the way home, Crolley received a telephone call from Appellant telling her he had retrieved her money. He gave her directions where to meet him. The women turned around, and were given directions to a remote area in Southeast Canton where they parked and waited. As they were waiting, Crolley witnessed Appellant appear from an area of tall grass, walk around the front of the vehicle, and pass her vehicle holding a gun. He approached the vehicle, and proceeded to shoot Crolley in the back of the head. He walked around the vehicle and shot Hoagland in the neck and through the cheek.

{¶6} After the shooting, Hoagland climbed into the driver's seat of the vehicle, and drove to a nearby business to get help. Both women were conscious, talking and able to provide the identification of the shooter. The business called 911, and Hoagland and Crolley were taken to a nearby hospital. Crolley was later life-flighted to Cleveland Metro Hospital.

{7} On July 2, 2011, members of the Canton Police Department showed Hoagland a photo array. Hoagland identified Appellant as the shooter. Three weeks later, Crolley was shown a photo array and identified Appellant as the shooter.

{¶8} On August 16, 2011, the Stark County Grand Jury indicted Appellant on two counts of attempted murder, in violation of R.C. 2903.02(A), 2923.02(A), first degree felonies; two counts of felonious assault, in violation of R.C. 2903.11, second degree felonies; and one count of having a weapon while under disability, in violation of R.C. 2323.13(A)(2). The attempted murder and felonious assault charges carried firearm specifications, pursuant to R.C. 2941.145, and repeat violent offender specifications, pursuant to R.C. 2941.149.

{¶9} On November 11, 2011, the trial court conducted a hearing on Appellant's motion to suppress the identification of Appellant from a photo array presented by the Canton Police Department. The trial court overruled Appellant's motion to suppress.

{¶10} On November 20, 2011, Appellant moved the trial court to appoint a neuropsychology expert. Specifically, Appellant sought an expert to determine the brain's response to trauma and the reliability of Crolley and Hoagland's identification of Appellant as the shooter. Via Judgment Entry of November 16, 2011, the trial court denied the motion.

{¶11} On February 28, 2012, Appellant filed a notice of alibi contending he was with Joshua Kennedy at the time the shootings took place. A videotaped deposition of Kennedy was taken via Skype as Kennedy is currently serving with the United States Army in Afghanistan.

{¶12} Following two declared mistrials by the trial court, the matter proceeded to trial for a third time on April 24, 2012. Appellant waived his right to a jury trial on the charge of having weapons under disability and on the firearm and repeat violent offender specifications. The other charges were then tried to the jury. On April 27, 2012, Appellant was convicted on all counts and specifications.

{¶13} On April 30, 2012, following a sentencing hearing, the trial court merged the felonious assault and attempted murder charges. The court then sentenced Appellant to ten years for each count of attempted murder, two three-year sentences for each firearm specification, two ten-year sentences for each repeat violent offender specification and thirty-six months for having a weapon under disability, all to be served consecutively for a total term of forty-nine years in prison.

{¶14} Appellant now appeals, assigning as error:

{¶15} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT APPELLANT'S REQUEST FOR FUNDS TO HIRE A NEUROPSYCHOLOGY EXPERT TO AID IN APPELLANT'S DEFENSE.

{¶16} "II. THE COURT'S FAILURE TO APPLY THE EXCLUSIONARY RULE AND SUPPRESS IDENTIFICATION TESTIMONY WHICH WAS BASED UPON SUGGESTIVE, UNRELIABLE POLICE IDENTIFICATION PROCEDURES PRESENTED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION AND THEREBY VIOLATED APPELLANT'S DUE PROCESS RIGHTS.

{¶17} "III. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO ADMIT THE TESTIMONY OF JOSHUA KENNEDY BY WAY OF VIDEO TAPED DEPOSITION WHEN THE TESTIMONY HAD NOT BEEN SUBJECT TO CROSS-EXAMINATION WITH NEWLY DISCOVERED EVIDENCE.

{¶18} "IV. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PERMIT THE APPELLANT TO INTRODUCE AN ALIBI DEFENSE.

{¶19} "V. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY IMPOSING NON-MINIMUM, MAXIMUM ...


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