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State v. Nolan

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
BOBBY D. NOLAN, Defendant-Appellant.

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0727.

Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, (For Plaintiff-Appellee).

Patricia J. Smith, (For Defendant-Appellant).



{¶1} This appeal is from the final judgment in a criminal proceeding before the Potage County Court of Common Pleas. After a jury trial, appellant, Bobby D. Nolan, was found guilty of attempted felony murder, felonious assault, and possessing a firearm while under a disability. He maintains that his conviction must be reversed because he was denied proper discovery and the jury verdict was against the weight of the evidence.

{¶2} The subject matter of this case concerns an altercation between appellant and the victim, Travis McPeak. The altercation happened in the yard of an apartment complex in Kent, Ohio, during the early morning hours of November 15, 2011. Prior to the incident, appellant and McPeak had met on only one occasion, approximately two years earlier when both men were incarcerated at the Portage County Jail.

{¶3} Tiffany Burns was a resident of the apartment complex where the incident occurred. Prior to November 15, 2011, Tiffany had shared her apartment with Nicole David, who was appellant's girlfriend. Recently, Nicole had moved from the apartment and started to live with appellant. At that time, appellant was living with another friend, Joshua Tipton, in Stow, Ohio.

{¶4} A few hours before the altercation, McPeak met Tiffany at a restaurant in Ravenna, Ohio. McPeak drove his own truck to the restaurant; however, at some point in the evening, he decided to "loan" his vehicle to Herschel Hill in exchange for illegal drugs.

{¶5} After their initial rendezvous at the restaurant, McPeak and Tiffany went to the home of a female friend in Ravenna, where they used illegal drugs. Eventually, they decided to go to Tiffany's apartment in Kent. The female friend agreed to drive McPeak and Tiffany to Kent, and they arrived at the apartment at approximately 12:00 a.m.

{¶6} Over the next two hours, McPeak and Tiffany watched a movie together. During this period, they had been alone in her apartment. At some point after the end of the movie, though, appellant came to the apartment. He was accompanied by Joshua Tipton and two other men. Prior to going to Tiffany's apartment, the four men had been at a local bar, where appellant had also engaged in illegal drug use.

{¶7} Almost instantly after entering the apartment, appellant began to verbally harass McPeak, claiming that McPeak was a racist. At one point during the "harassing" stage of the altercation, appellant ordered McPeak to totally disrobe so that his clothes could be checked. Upon putting his garments back on, McPeak decided to leave and went out the sole outside door to Tiffany's apartment. He then proceeded to go toward the sidewalk that was located near the adjacent roadway. At that juncture, Tipton was seated in the vehicle he had used to drive appellant to the apartment. Tipton's vehicle was not parked directly in front of Tiffany's door, but instead was located a few yards down the roadway.

{¶8} As McPeak got to the sidewalk and began to turn right, he saw a shadow coming toward him from behind. As McPeak turned to look, appellant attempted to hit him. However, McPeak was able to duck and avoid the intended blow. He then pushed appellant to the ground.

{¶9} As appellant was standing up, he removed a firearm from the front pocket of his sweatshirt and immediately fired it in the general direction of McPeak. The bullet entered the outside edge of McPeak's left thigh, went across the entire width of the left thigh, and exited the inside edge of the thigh. The bullet did not hit the femur bone in the left thigh; nor did it hit the main artery for McPeak's left leg.

{¶10} According to McPeak, he never saw appellant point the firearm at him, but only saw a flash of light. According to Joshua Tipton, who saw the altercation through the rearview mirror of his vehicle, appellant pointed the firearm downward, rather than at McPeak's torso or head. Pursuant to appellant's version of the events, he pointed the firearm downward because he was only attempting to intimidate McPeak.

{¶11} Upon being shot, McPeak ran away from the apartment complex. While appellant yelled at McPeak as he was running, appellant did not fire the gun again and did not chase after him. Over the next thirty minutes, McPeak hid in two different locations and tried to contact Tiffany and his brother on his cell phone. When he was convinced that he was not being followed, McPeak walked into a local convenient store and asked to use the store phone. While he again tried to contact his brother, the store clerk called the police on her cell phone. After the police arrived and noticed McPeak's injury, he was transported to a local hospital.

{¶12} When the Kent police tried to question McPeak about the shooting, he was initially evasive. In fact, at one point, he told an officer that he thought his truck had been stolen that night. However, after he was treated at the hospital, he explained the entire incident to the police and executed a written statement. In addition, McPeak was able to pick appellant out in a photo array.

{¶13} The Kent police were never able to recover the firearm that appellant used in the shooting. In testifying for the state at trial, Joshua Tipton indicated that appellant threw the firearm into a local lake.

{¶14} Within one week of the incident, the Portage County Grand jury returned a three-count indictment, charging appellant with two counts of attempted murder and one count of felonious assault. Each of the three counts had a firearm specification. While these charges were pending, the grand jury returned a supplemental indictment, under which appellant was charged with having a firearm while under a disability.

{¶15} Pursuant to the first count of attempted murder, appellant was charged under R.C. 2923.02 and 2903.02(A), and essentially asserted that appellant purposely attempted to cause McPeak's death. The second attempted murder count was brought under R.C. 2923.02 and 2903.02(B), and asserted that appellant knowingly engaged in behavior that, if successful, would have caused McPeak's death as a proximate cause of his commission of the underlying offense of felonious assault.

{¶16} After appellant entered a plea of not guilty to all four charges, the parties went forward with discovery. In response to appellant's request for all medical records stemming from McPeak's hospital ...

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