from the Franklin County C.P.C. No. 15CR-1953 Court of Common
O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik
P. Henry for appellant.
1} Defendant-appellant, Timothy M.
Oller, 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
FACTS AND PROCEDURAL HISTORY
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,
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
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
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
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" (Tr. Vol. IV at
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. (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
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
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
(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
(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
(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
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 ...