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State v. Doll

Court of Appeals of Ohio, Fourth District, Scioto

May 1, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
BRANCH J. DOLL, Defendant-Appellant.

          John A. Gambill, Portsmouth, Ohio, for appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE

         {¶1} 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.

         {¶2} 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.

         {¶3} Therefore, we overrule Doll's assignments of error and affirm his convictions.

         I. FACTS

         {¶4} 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 following evidence.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} The jury found Doll not guilty of attempted murder but guilty of the remaining offenses, and the trial court sentenced him to prison.

         II. ASSIGNMENTS OF ERROR

         {¶11} 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 INDICTMENT.
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 ...

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