Court of Appeals of Ohio, Fourth District, Scioto
A. Gambill, Portsmouth, Ohio, for appellant.
E. Kuhn, Scioto County Prosecuting Attorney, for appellee.
DECISION AND JUDGMENT ENTRY
WILLIAM H. HARSHA, JUDGE
A jury convicted Branch J. Doll of multiple crimes including
felonious assault with a firearm, and the Scioto County Court
of Common Pleas sentenced him to prison. On appeal Doll
initially asserts that the trial court erred in instructing
the jury that his voluntary intoxication could not be
considered when determining whether he knowingly committed
the crimes charged in the indictment. Because Doll did not
object at trial to this instruction, he forfeited all but
plain error. We reject Doll's assertion because the trial
court did not commit error, much less plain error, by
instructing the jury that his voluntary intoxication was not
an available defense. The cases Doll cites preceded the
General Assembly's 2000 amendment to R.C. 2901.21, which
provided that voluntary intoxication could no longer be
considered in determining the existence of a mental state
that is an element of a criminal offense. To the extent we
previously held otherwise in State v. Goad, 4th
Dist. Washington No. 08CA25, 2009-Ohio-580, we overrule it on
this point. Next we reject Doll's contention that his
trial counsel was ineffective for conceding that voluntary
intoxication was not a defense to the charged offenses and
for failing to object to the trial court's instruction to
that effect. A failure to raise a meritless objection cannot
constitute deficient performance.
Finally Doll claims that his conviction for tampering with
evidence was not supported by sufficient evidence and was
against the manifest weight of the evidence. Doll argues that
the state failed to present any evidence that he knew of an
ongoing or likely investigation when he picked up a shell
casing from a bullet he had fired at one of his neighbors,
and placed it in his pocket. But there was evidence that Doll
was in the close proximity of the victim/neighbor who
implored a passerby several times to call 911. And the victim
and his girlfriend retreated to her residence, giving Doll
reason to believe that she would contact the police. This
constituted sufficient, credible evidence that Doll knew that
an investigation was likely at the time he pocketed the shell
casing. His conviction for tampering with evidence was thus
supported by sufficient evidence and not against the manifest
weight of the evidence.
Therefore, we overrule Doll's assignments of error and
affirm his convictions.
The Scioto County Grand Jury returned an indictment charging
Branch J. Doll with attempted murder, with an accompanying
firearm specification, felonious assault, with an
accompanying firearm specification, improperly discharging a
firearm at or into a habitation, with an accompanying firearm
specification, tampering with evidence, assault on a peace
officer, and improper handling of a firearm in a motor
vehicle. After the trial court appointed counsel for Doll,
the case proceeded to a jury trial, which provided the
Kelly Howell and his girlfriend Stacie Tripp heard their
neighbor Doll sitting in his driveway revving the engine of
his vehicle until he blew it up. Tripp tried to help
Doll's grandmother get Doll back inside his residence
after Doll hit the grandmother with the vehicle's door,
but Doll was intoxicated, and said he was mad at and going to
beat up another neighbor.
Eventually, Doll returned to his residence, entered his
garage, and became mad at his dogs. Neighbors heard rattling
of cages and dogs yelping. Jane Nichols, a passerby who was
visiting her son, stopped her car to see what was happening,
and Howell told her to call 911. After several of his dogs
escaped, Doll picked one up off the ground and slammed it
into the ground. Howell again told Nichols to call 911.
According to Howell, he repeated his request three times.
After being told not to hurt the dogs, Doll went to his
vehicle and retrieved a semi-automatic handgun, which caused
Tripp to yell that Doll had a gun. Doll then yelled at Tripp
to stay out of his business and pointed the gun at Tripp.
Howell yelled at Doll not to point the gun at Tripp, which
made Doll turn and fire one shot at Howell, who stood in the
doorway of his residence. The bullet hit the shutter next to
the doorway where Howell was standing, then ricocheted off
the door trim, and went through the screen. Nichols was near
the area where Doll fired his gun, and she heard Tripp yell
"he's got a gun" and then heard the gunshot as
she called 911. Tripp ran back into the house and called 911
to report the shooting.
Scioto County Deputy Sheriff Nicholas Shepherd responded to
the 911 calls of a man firing shots at a neighbor and when he
arrived, he observed Doll bend over, pick something up, and
put it in his pocket. Deputy Sheriff Shepherd testified that
he did not believe that Doll saw him before Doll picked up
the object. Deputy Sheriff Shepherd approached Doll, but when
he tried to detain him, Doll started swinging wildly at
Shepherd, hitting him several times in his leg. Deputy
Sheriff Shepherd used his taser on Doll and handcuffed him.
Shepherd retrieved the gun from the driver's seat of
Doll's vehicle. After Doll was transported to the
sheriff's office, an empty .40 caliber shell casing was
discovered in his pocket. During his police interview, Doll
said that he did not know what happened and claimed that his
grandmother may have put the shell casing in his pocket
because she was crazy.
The trial court instructed the jury that Doll's voluntary
intoxication was not an excuse for the offenses and was not
to be considered by the jury in its deliberations in
determining the existence of Doll's mental state.
Doll's trial counsel did not object to the instruction.
The jury found Doll not guilty of attempted murder but guilty
of the remaining offenses, and the trial court sentenced him
ASSIGNMENTS OF ERROR
Doll appeals and assigns the following errors for our review:
1. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT
APPELLANT'S VOLUNTARY INTOXICATION COULD NOT BE
CONSIDERED WHEN DETERMINING WHETHER APPELLANT
"KNOWINGLY" COMMITTED THE CRIMES CHARGED IN THE
2. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
MISREPRESENTING LAW RELATED TO VOLUNTARY INTOXICATION AND
FAILING TO OBJECT TO JURY INSTRUCTION INDICATING THAT
VOLUNTARY INTOXICATION IS NOT AN AFFIRMATIVE DEFENSE TO THE
CRIMES CHARGED IN THE INDICTMENT.
3. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
CONVICT APPELLANT OF TAMPERING WITH EVIDENCE; OR, IN THE
ALTERNATIVE, THE CONVICTION WAS AGAINST THE ...