APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 11CR-1350)
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
Brehm & Associates, and Eric W. Brehm, for appellant.
(¶ 1} Defendant-appellant, Robert W. Bailey, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of voluntary manslaughter, tampering with evidence, and having a weapon while under disability. For the following reasons, we affirm appellant's convictions but remand this matter for resentencing.
I. FACTUAL BACKGROUND
(¶ 2} On March 2, 2011, Robert Dillon was riding his bicycle down the sidewalk on the east side of Hague Avenue in Franklin County, Ohio. Appellant and his daughter, Farron Bailey, lived together on the west side of Hague Avenue. Their dogs got loose and ran over towards Dillon, which prompted a heated argument between Farron and Dillon.
(¶ 3} Witnesses testified that Farron crossed the street to confront Dillon during this initial exchange. She then departed back across the street to her house. At some point during Farron and Dillon's exchange, appellant also emerged from the house, crossed the street, and confronted Dillon. Appellant and Dillon argued, and then appellant too returned to his house.
(¶ 4} Farron was the first to re-emerge, this time carrying a baseball bat. Appellant followed behind her holding a handgun in plain view. Several neighbors saw the gun, and one eyewitness testified that he heard the distinct "clack, clack" sound of appellant racking his pistol to chamber a round on his way towards Dillon. (Tr. Vol. I, 126.) Appellant and Farron crossed the street again, and the argument between them and Dillon escalated violently.
(¶ 5} Farron struck Dillon repeatedly with her baseball bat, Dillon swung a chain-style bike lock at the Baileys, and appellant and Dillon exchanged blows with their fists. The fight between appellant and Dillon went to the ground, and while they were wrestling, appellant's gun discharged. The bullet struck Dillon in the abdomen and exited his back.
(¶ 6} There was conflicting testimony at trial regarding the position of appellant and Dillon when the shot was fired. However, one eyewitness testified that appellant was on top of Dillon, pinning him with his knee, when she saw appellant move his gun from behind his back towards Dillon. Then, she heard the gun fire.
(¶ 7} After Dillon was shot, appellant and Farron retreated with their weapons back to their home, each crossing the street a final time. Appellant hid his gun underneath an upstairs mattress and the bat was placed in a first floor closet, where both were later discovered by police.
(¶ 8} After the shooting, Dillon stood up and began to walk with his bicycle, but collapsed to the ground shortly thereafter. Neighbors called 9-1-1 and attempted to administer aid to Dillon, but he died as a result of the gunshot wound.
(¶ 9} While neighbors were assisting Dillon and waiting for police to arrive, appellant and Farron came back out of their house and asked what happened. One neighbor responded, "you know what * * * happened. Get back across the street where you belong because you guys did this and you're not coming over here." (Tr. Vol. II, 235- 36.) Appellant and Farron complied, and they were arrested outside of their house as soon as police arrived.
(¶ 10} Several eyewitnesses testified at trial that appellant and Farron were the aggressors. They crossed the street several times during the ordeal, while Dillon never left his side of the street. They brought weapons to the fight and used them. Dillon did have a handgun concealed in his pants, but he did not brandish it during the fight. Paramedics found it fully loaded and in its holster after the shooting.
(¶ 11} Appellant and Farron both testified at trial that they saw the gun and that Dillon motioned towards his pants as if he had a gun during the incident. However, they did not tell police that they saw the gun during the investigation, and during cross-examination, both appellant and Farron admitted that they were claiming they saw the gun for the first time at trial.
(¶ 12} Appellant further claimed at trial that his gun went off accidentally during the struggle with Dillon. Plaintiff-appellee, the State of Ohio, countered with expert testimony establishing that appellant's gun required a little more than nine pounds of pressure applied to the proper surface of the trigger to fire a round.
(¶ 13} The state also put forth evidence regarding gunshot residue. Both appellant and Farron's hands tested positive for gunshot residue. However, Dillon's hands were not tested by police. The state's forensic scientist explained the significance, testifying that finding "gunshot residue particles does not mean that somebody fired a firearm." (Tr. Vol. III, 543.) It means that an individual either fired a gun, was in the vicinity of where a gun was fired, or arrived in the area where a gun was fired afterwards and picked up the residue secondhand.
II. PROCEDURAL HISTORY
(¶ 14} On March 10, 2011, appellant was indicted on two counts of murder, in violation of R.C. 2903.02, each with a firearm specification pursuant to R.C. 2941.145, one count of felonious assault, in violation of R.C. 2903.11, also with a firearm specification pursuant to R.C. 2941.145, one count of tampering with evidence, in violation of R.C. 2921.12, and one count of having a weapon while under disability, in violation of R.C. 2923.13. In June 2012, the having a weapon while under disability charge was tried to the bench. All of the other charges were tried to a jury. At the conclusion, appellant was found guilty of the lesser-included offense of voluntary manslaughter, in violation of R.C. 2903.03, an accompanying firearm specification, tampering with evidence, and having a weapon while under disability.
(¶ 15} On July 16, 2012, the trial court held a sentencing hearing, and sentenced appellant to 10 years in prison for voluntary manslaughter, 3 years for the firearm specification, 1 year for tampering with evidence, and 3 years for having a weapon while under ...