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State v. Oller

Court of Appeals of Ohio, Tenth District

March 7, 2017

State of Ohio, Plaintiff-Appellee,
v.
Timothy M. Oller, Defendant-Appellant.

         APPEAL from the Franklin County C.P.C. No. 15CR-1953 Court of Common Pleas

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

          Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik P. Henry for appellant.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Timothy M. Oller[1], appeals a judgment of the Franklin County Court of Common Pleas entered May 17, 2016, sentencing him to serve 21 years in prison. The sentence resulted from a criminal trial whereby a jury found him guilty of a single count of involuntary manslaughter after making the specific finding that Timothy acted under provocation. On conviction and sentencing, the trial court judge stated on the record that he rejected the jury's finding that Timothy had acted under provocation and stated that his acts resulting in Davis' death were calculated. As part of sentencing, the trial court judge found Timothy to be a repeat violent offender under R.C. 2941.149. Because we agree that the trial court erred by rejecting the jury's finding that Timothy acted while under provocation in order to justify the sentence the trial court imposed, we reverse and remand for a new sentencing hearing with the instruction that the trial court must accept the factual findings of the jury and proceed to sentence from that basis. We also instruct that if, on resentencing, the trial court again imposes a period of imprisonment as a consequence of the repeat-violent-offender specification, the trial court must state such findings on the record as required by R.C. 2953.08(G)(1) and 2929.14(B)(2)(e). Because we find no basis on which to sustain any of Timothy's other six assignments of error or related subparts, we otherwise affirm.

         I. FACTS AND PROCEDURAL HISTORY

         A. Facts as Presented at Trial

         {¶ 2} On April 12, 2015, Timothy fatally stabbed Monica Davis near a small grocery store, Wheatland Foods. The store is located on the northeast corner of the intersection of Graham Street and Mt. Vernon Avenue in Columbus, Ohio, and the stabbing itself took place just north of the store on the east side of Graham Street. As a result, Timothy was indicted on April 21, 2015 for one count of murder and one count of felony murder with felonious assault as the underlying predicate offense. (Apr. 21, 2015 Indictment.)

         {¶ 3} The stabbing and events leading up to it were captured on a police camera. Thus, after only a short interval for investigation and preparation, on May 2, 2015 a jury trial commenced. The video (which lacks sound but clearly shows the events) was played at trial and the parties stipulated to the location, date, time, and identities of the persons depicted in the video. (May 3, 2016 Tr. Vol. II at 63-64, filed on July 18, 2016; State's Ex. A.)

         {¶ 4} The video shows that shortly before 5 p.m. Timothy and his brother, Robert Oller, approached Wheatland Foods and entered the store. (State's Ex. A at 24:24-24:35.) Davis, who had been loitering in the vicinity of the store for some period of time, entered the store approximately three minutes after the Oller brothers. Id. at 26:34-26:38. Less than one minute later, all three emerged, Davis arguing with Timothy and pushing him. Id. at 27:02-27:35. A group gathered and Timothy was briefly surrounded. See e.g., id. at 28:20. Davis mimed pelvic thrusting several times, once against a bicycle, once in the air, and once against a phone booth, and pointed repeatedly to Timothy. Id. at 29:15-29:38. However, within approximately five minutes the situation appeared to have been mostly resolved; Davis and Timothy shook hands, and the Oller brothers left as the owner of Wheatland Foods attempted to calm down Davis. Id. at 28:54-59, 30:10.

         {¶ 5} A few minutes after the Oller brothers departed, a police officer, Sergeant Douglas Wilkinson, stopped his cruiser on seeing Davis' apparent irate state and had a conversation with Davis. Id. at 31:20-36:16. Wilkinson would later testify that Davis said someone had touched her inappropriately but that she did not want to do anything about it because the person had apologized. (Tr. at 130-33.) Wilkinson also would later testify that Davis was intoxicated. (Tr. at 137.)

         {¶ 6} Approximately 17 minutes after the end of the first interaction, the Oller brothers returned to the store. (State's Ex. A at 47:45-47:50.) After entering and then leaving the store, the brothers began to depart from the area, but then apparently changed their minds and instead loitered, drinking while leaning against the side of the store facing Graham Street. Id. at 50:10-50:24. Approximately 15 seconds after the brothers began drinking while leaning against the side of the store, Davis returned to the store, peered around the side of the building, and initiated a conversation. Id. at 50:40-50. During this conversation, Paul Jones (a young man with a thick cane held over his shoulder like a club) approached and loitered nearby. Id. at 50:46-51:00. Almost simultaneously, another person from the neighborhood, Renee Wiley, drew near and was flagged down by a gesticulating Davis who pointed repeatedly at the Oller brothers while talking with Wiley. Id. at 51:00-51:11. Wiley then began a close conversation with the brothers, gesturing quickly and repeatedly as she spoke. Id. at 51:12-52:45. This conversation escalated into Wiley attempting to strike both brothers as the shopkeeper of Wheatland Foods restrained her and attempted to insert himself between Wiley and the brothers. Id.

         {¶ 7} At this juncture, another neighbor, Ethni Smith, arrived and began gesturing expansively as the shopkeeper attempted to hustle the brothers away down Graham Street. Id. at 52:43-53:07. However the brothers, led by Timothy, turned back and when Smith and Davis rounded the corner again to continue the argument, Timothy exposed his waistband to reveal that he carried a knife. Id. at 53:07-17. After more words and gestures from both Smith and the shopkeeper to encourage the various gathered persons to disperse, the Oller brothers turned to leave. Id. at 53:17-53:38. They began walking down the east side of Graham Street while Davis crossed to the west side of Graham Street and left the frame of the video. Id. at 53:36-48.

         {¶ 8} After approximately ten seconds, Davis reentered the frame of the video from the west side of Graham Street and made straight for the two brothers who were then still on the east side of Graham Street. Id. at 53:55-53:58. As Davis approached, Robert stepped off the curb and met Davis in the middle of the street while Timothy remained on the sidewalk on the east side. Id. at 53:54-54:02. When Davis met Robert in the middle of the street she punched him twice after reputedly proclaiming, "I'm going to beat your ass, " or something to the effect that she was going to "fuck him up." Id. at 54:02-06; May 5, 2016 Tr. Vol. IV at 292, 309-10, 326. Then she turned to Timothy, who was still on the sidewalk. Id. at 54:06-54:10. She approached him and punched him in the side of the head, shoved him, and then turned to Robert again. Id. When Davis turned toward Robert again, Timothy ran up behind her and stabbed her in the right side. Id. at 54:10-13. Davis clutched her side, teetered for approximately 13 seconds and then fell face-first onto the sidewalk. Id. at 54:13-26. Timothy attempted to flee as neighbors converged but they caught him and stomped him to unconsciousness before laying him against a telephone pole where the police found and arrested him minutes later. Id. at 54:12-56:34, 57:38-107:02.

         {¶ 9} At trial, a deputy coroner testified that Davis died from a seven-inch-deep stab wound in the right side of her lower back. (Tr. Vol. II at 68, 75-76, 78-79.) According to the coroner, the knife only stopped penetrating when it hit her second lumbar vertebra. (Tr. Vol. II at 78.) The wound injured her organs and vessels including the aorta and inferior vena cava with the result that she bled to death. (Tr. Vol. II at 68, 75-76, 78-79.) The parties stipulated that Davis' DNA was present on a long kitchen knife discovered at the scene. (Tr. Vol. IV at 268.) The deputy coroner also testified that Davis had cocaine and cocaine metabolites in her system and tests revealed a 0.15 percent blood alcohol concentration, more than double the legal driving limit. (Tr. Vol. II at 83-84.)

         {¶ 10} Ethni Smith testified that she did not see Davis with any weapon but that Timothy had an old butcher knife with a wooden handle and a long rusted blade. (Tr. Vol. II at 112, 115-16.) She testified that Robert encouraged Timothy, but admitted that initially she falsely told the police that Robert had held Davis while Timothy stabbed her. (Tr. Vol. II at 122-23.) She also related that all of the participants in the affray were under the influence. (Tr. Vol. II at 125.)

         {¶ 11} Renee Wiley also testified that she did not see Davis with a weapon. (May 4, 2016 Tr. Vol. III at 197-98.) Wiley alleged that the Oller brothers were trying to fight everyone and stir up trouble. (Tr. Vol. III at 191-94.) She also testified that she had known Davis since they were 12-years-old and that Davis was like family to her. (Tr. Vol. III at 187.) She admitted having a felony conviction for receiving stolen property and that on the day of the stabbing she had been drinking beer and using crack cocaine. (Tr. Vol. III at 186, 188-89.)

         {¶ 12} The jury also heard recorded statements from Timothy. The first was a video taken from inside the cruiser shortly after his arrest in which he made a number of unsolicited statements as follows:

Think because you're in their neighborhood they think they can, like, tell you what to do. Uhh, no. You might die fuckin with me.
You done ran into the wrong honkey. I'll end this bitch.
You possibly could be dead fuckin with me. Uh, yeah.
I'll put your ass in a body bag, bitch!
I doan give a fuck!

(State's Ex. F at 0:00-0:13, 0:14-0:18, 0:24-0:27, 30-33; Tr. Vol. III at 223). Then Timothy inquired of the officer seated in the front seat:

Sir, that lady that got stabbed, whoever did .... What happened to her? Huh? She okay? Huh?

Id. at 0:58-1:10. His speech is very slurred during the video.

         {¶ 13} The second occasion on which the jury heard from Timothy was when a video of his interview at the police station was played. (Tr. Vol. III at 243; State's Ex. G.) As is true in the cruiser video, his speech is noticeably slurred in the interview video and the interviewing officer testified at trial that Timothy appeared intoxicated. (Tr. Vol. III at 247-48.) During the interview, Timothy's statements were frequently incoherent but he claimed to have been defending himself and denied knowledge of any knife. (State's Ex. G, in passim.)

         {¶ 14} Finally, the jury heard from Timothy when he testified at trial. He admitted that he had previously been convicted of a variety of felonies. (Tr. Vol. IV at 272.) He then explained that on April 12, 2015 he lived a block and a half from Wheatland Foods and had just moved in about ten days prior to the incident. (Tr. Vol. IV at 273.) He said when he entered Wheatland Foods, Davis wrapped her leg around him provocatively and said something along the lines of, "[y]ou think you're something. What you got for me?" (Tr. Vol. IV at 278.) He testified that he pushed by her, which involved physical contact, but he denied any inappropriate touching. (Tr. Vol. IV at 278-79.) When Timothy did not engage her advances, Davis began to loudly claim to anyone who would listen that Timothy had touched her provocatively. (Tr. Vol. IV at 279-80.) This drew the crowd that appeared on the video but the store owner mediated and convinced the individuals who gathered to permit the Oller brothers to leave. (Tr. Vol. IV at 280-83.)

         {¶ 15} Timothy testified that he and his brother later returned to the store because he decided he wanted a cigar wrap in which to smoke marijuana. (Tr. Vol. IV at 284-86.) On the way to the store he found a knife lying in the grass and decided to pick it up in case he needed some protection. (Tr. Vol. IV at 286.) Timothy testified that when Davis began speaking to them on the second visit to the store she again began repeating the false allegations about the inappropriate touching and soon had other people, including Jones and Wiley, threatening to do bodily harm to both Oller brothers. (Tr. Vol. IV at 289.) According to Timothy, he did not immediately depart because he was worried what might happen once he and his brother were out of range of the police camera. (Tr. Vol. IV at 291.) He flashed the knife to Smith who was trying to mediate the situation in order to convince her that they should be permitted to leave and deter potential aggressors from following. (Tr. Vol. IV at 291-92.)

         {¶ 16} After flashing the knife, he and his brother departed while Davis crossed the street and approached the porch of an apartment on the other side of the street. (Tr. Vol. IV at 292-93.) Then she turned back and crossed the street, moving toward his brother saying that she was going to "fuck him up." Id. She hit his brother and then hit Timothy, splitting his ear. (Tr. Vol. IV at 293-94.) He thought perhaps she had a weapon because she went to the apartment across the street and then immediately returned and attacked the two of them. (Tr. Vol. IV at 293.) He also said he was angry, "about as angry as you can get, " because he had been falsely accused of groping her and had been physically attacked. (Tr. Vol. IV at 294.) So he stabbed her. (Tr. Vol. IV at 293.) He testified that he did not intend to kill, that using the knife was an angry reaction, and also done from fear that she may have had a weapon. (Tr. Vol. IV at 293-95.) But he admitted he made a choice to stab rather than slash and that his thought that Davis may have had a weapon was speculation. (Tr. Vol. IV at 315, 317.) He told the jury that he regretted what he did, "[m]ore than anybody would ever know." (Tr. Vol. IV at 327.)

         B. Significant Procedural Events

         {¶ 17} In addition to the facts of the case, which are challenged by several of Timothy's assignments of error, there are a number of legal and procedural issues that arose from the trial and are now argued on appeal.

         {¶ 18} Mid-trial, a juror revealed that she had been approached by Davis' son. (Tr. Vol. III at 180-81.) The juror was questioned by the trial judge and by Timothy's counsel, and she said that the acquaintance was casual (they had taken a class together in college) and that she could remain impartial. (Tr. Vol. III at 180-83.) The defense did not object to the juror remaining on the jury, and the juror was not excused. Id.

         {¶ 19} The defense requested instructions on lesser-included offenses as to each count. (Tr. Vol. IV at 329-33.) With respect to Count 2, felony murder, the defense requested an instruction on the lesser-included offense of involuntary manslaughter. Id. Count 2's felony-murder indictment was based on the allegation that Timothy caused death in the course of committing felonious assault on Davis. (Indictment at 2.) The defense reasoned that when what would be felonious assault is provoked, its elements change to those of aggravated assault, a fourth-degree felony; felony murder only applies when the predicate offense is a first or second-degree felony. (Tr. Vol. IV at 257-58.) As a result, if Timothy was found to have acted under provocation he could not be found guilty of felony murder but rather involuntary manslaughter, since that offense involves causing death in the commission of any felony, regardless of degree. Id. The trial court agreed to instruct the jury on the lesser-included offense of involuntary manslaughter. (Tr. Vol. IV at 334.) However, both the written instructions filed on the trial court's docket and the instructions orally given to the jury during trial defined involuntary manslaughter as, "causing the death of another as a proximate result of committing or attempting to commit a felonious assault"[2] (Tr. Vol. IV at 381.)

         {¶ 20} The defense did not object to this iteration of its requested jury instruction, even though felonious assault is a second-degree felony. The defense also did not request an instruction on the affirmative defense of self-defense. Following the trial, on May 6, 2016, Timothy was found guilty only of the lesser-included offense of involuntary manslaughter and not guilty of all other primary and lesser offenses. (May 6, 2016 Verdict Forms.)

         {¶ 21} The trial court held a sentencing hearing on May 16, 2016, ten days after the jury had reached its verdict and it was read in open court. At sentencing and over defense objection, the trial court permitted the prosecution to present evidence of Timothy's prior offense for the of purpose providing a basis for the trial court to find that he was a repeat violent offender as had been specified in the indictment as to Count 2, felony murder.[3] (May 6, 2016 Tr. Vol. V at 402-20.) The trial court found that Timothy was a repeat violent offender. (Tr. Vol. V at 440.) Then the court reasoned as follows:

You had an opportunity on three occasions to walk away. The one that's most telling is right before the stabbing when you went to the corner of the building after being shooed off by the store owner, and you guys sat there. You both started to walk away, and you kind of brought him back, and then you waited and you waited and then she came around, and she came scurrying you away, trying to get you out of there.
You can call it a punch or whatever, but she reminded me of Grandma chasing you down the street with a broom. She didn't do anything to hurt you, and then you coldly and calculatedly put it in her back. It was a cowardly way of going about it, and I still see that every time I think about this case.
You know, you could have walked away. There is this waste of life on this one. This is one of those that a maximum sentence is appropriate, so it's 11 years plus the 10 for the [repeat- violent-offender specification]. This is one of the worst-case scenarios. I know it's not one of the standards, but it's consecutive by statute. 2929.14(C)(4), I mean, it gives me that right because it's a statutory mandate. I do have the ability to run it consecutive. I don't see any prejudice on there.
You know, I understand why the jury felt the way they did. I talked to them afterward; I made them available to you guys too.
And I know, [Defense Counsel], you heard them. They believed there was provocation there, but I still can't get it out of my head and justify not a maximum sentence on this because he coldly and calculatedly went at it.
And I know the jury found against that. I understand that, and I understand their reasoning. Okay? But I still can see the picture. I can still see the stabbing. It was unnecessary, and it was calculated, and a maximum sentence is the only justification here.
It's 21 years.

(Tr. Vol. V at 441-42.)

         {¶ 22} Timothy now timely appeals. II. ASSIGNMENTS OF ERROR

         {¶ 23} Timothy asserts seven assignments of error for our review:

(1.) THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON INVOLUNTARY MANSLAUGHTER IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.
(2.) THE CONVICTION FOR INVOLUNTARY MANSLAUGHTER MUST BE REVERSED BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS BEYOND A REASONABLE DOUBT AS EVIDENCED BY THE JURY'S VERDICT AS TO VOLUNTARY MANSLAUGHTER CONTRARY TO THE DUE PROCESS CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS.
(3.) THE TRIAL COURT ERRED IN ALLOWING THE STATE TO REOPEN ITS CASE- IN-CHIEF TO PRESENT EVIDENCE REGARDING THE REPEAT VIOLENT OFFENDER SPECIFICATION CONTRARY TO APPELLANT'S DOUBLE JEOPARDY RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
(4.) THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND NOT SUPPORTED BY THE EVIDENCE, THUS CONSTITUTING AN ABUSE OF DISCRETION DEPRIVING APPELLANT OF DUE PROCESS CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION.
(5.) THE TRIAL COURT ERRED BY FAILING TO EXCUSE A JUROR WHO KNEW A FAMILY MEMBER OF THE VICTIM AND WHO MADE CONTACT WITH THAT FAMILY MEMBER DURING TRIAL CONTRARY TO APPELLANT'S CONSTITUTIONAL RIGHT TO A PANEL OF FAIR AND IMPARTIAL JURORS.
(6.) APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
(7.) THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.

         III. DISCUSSION

         C. First Assignment of Error-Whether the Trial Court Improperly Instructed the Jury on Involuntary Manslaughter

         {¶ 24} In Ohio, one definition of murder is to "cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree." R.C. 2903.02(B). As indicted, Timothy was accused of committing murder by causing the death of Davis as a result of committing or attempting to commit the offense of felonious assault. (Indictment at 2.) As potentially relevant to this case, felonious assault is defined as knowingly "[c]aus[ing] serious physical harm to another * * * [or] [c]aus[ing] or attempt[ing] to cause physical harm to another * * * by means ...


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