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State v. Sekulic

Court of Appeals of Ohio, Fifth District, Stark

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee
v.
DRAGAN SEKULIC, Defendant-Appellant

         Criminal appeal from the Stark County Court of Common Pleas, Case No. 2015CR1884.

          For Plaintiff-Appellee JOHN D. FERRERO STARK COUNTY PROSECUTOR BY: RENEE WATSON

          For Defendant-Appellant AARON KOVALCHIK

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          Gwin, P.J.

         {¶1} Defendant-appellant Dragan Sekulic ["Sekulic"] appeals from the July 6, 2016 judgment entry of the Stark County Court of Common Pleas convicting and sentencing him for one count of Aggravated Murder in violation of R.C. 2903.01 (A) with a firearm specification in violation of R.C. 2941.145, one count of Attempted Murder in violation of R.C. 2923.02(A), and one count of Felonious Assault in violation of R.C. 2903.11(A)(2).

         Facts and Procedural History

         {¶2} Sekulic came to the U.S. from Croatia with his parents around 1980. In 2001, he was introduced to Zeljka through family members. Zeljka was living in Serbia at the time. The two talked over the phone for a period before Sekulic traveled to Serbia with the intention of marrying Zeljka. They married in Serbia in September 2001, and Zeljka came to the United States shortly thereafter. The two settled in Stark County and had two daughters.

         {¶3} During the course of her marriage, Zeljka pursued an STNA nursing degree. Eventually she took jobs at various nursing homes, working full time at the Astoria Nursing Home and part-time at three other nursing homes.

         {¶4} In December 2014, Zeljka and Sekulic separated and began divorce proceedings. Zeljka and her two daughters moved in with Zeljka's sister, Stanislava "Stan" and her two children. The divorce became final in August 2015.

         {¶5} On November 22, 2015, Sekulic had the children for visitation. Subsequent to the divorce, Sekulic wished to retrieve the cell phone that was in his name from Zeljka. He asked his youngest daughter to bring him Zeljka's old cell phone.

         {¶6} Later, Sekulic accessed Zeljka's Facebook account, went through her messages, and discovered that she was intimately involved with an African-American coworker. Believing the relationship began before they divorced, Sekulic immediately told his daughters, age 9 and 13, "mommy cheated on me." He then let them read the intimate, graphic messages.

         {¶7} When the children went home the next day and Zeljka learned what Sekulic had done, she was furious. She told Sekulic he would not see the children for Thanksgiving.

         November 24, 2015 - Attempted murder and Felonious assault.

         {¶8} On November 24, Sekulic phoned Zeljka 40-50 times. When she blocked his number, he decided he would follow her to work. When Zeljka pulled into the Astoria parking lot, Sekulic pulled in next to her. She was on the phone. He got out of his half-ton Chevy pickup and attempted to break the passenger side window of Zeljka's Chrysler 2000 with his cell phone charger or adapter. Terrified, Zeljka drove off. Sekulic jumped back into his truck and followed.

         {¶9} Zeljka began driving in circles around the perimeter of the Astoria parking lot at a high rate of speed with Sekulic in pursuit. At the same time, she was on the phone with 9-1-1, for help. Zeljka told the dispatcher her husband had followed her to work, was chasing her in her car with his Chevy Silverado, she believed that he had a gun, and was going to kill her.

         {¶10} At the same time, Lindsay Conant, an employee at a memory care facility situated next door to the Astoria, had just stepped outside with two clients for a smoke break. She had a clear view of the Astoria parking lot. Shonna Keys was also present in the Astoria parking lot, having arrived to visit a patient.

         {¶11} Conant watched as the two vehicles sped around the lot. Both the women watched as Sekulic charged toward the back of Zeljka's car at "highway speed" and rammed the back end. The car was pushed through the parking lot, out into the street and into a utility pole. The pole snapped in half. Zeljka's car then continued across the street, struck a building, and landed upside down, trapping her inside. Conant watched Sekulic ram the car a few more times, and then speed away.

         {¶12} Sekulic fled to a friend's house and called his brother, Gligo. He told Gligo what he had done, told him he had disposed of the gun in a lake, and asked him to come and pick him up. Gligo refused and told Sekulic to turn himself in to the police.

         {¶13} Sekulic also called his friend James Lamtman. He told Lamtman he had rammed Zeljka's car and disposed of the gun he had used to try to break her car window. He further shared he had been drinking and was going to wait until he sobered up to turn himself in to the police. Lamtman told Sekulic not to wait. Sekulic took his advice.

         {¶14} Sekulic was taken into custody, but then released on bond. For the following fifteen days, Gligo saw his brother every day. Gligo noted that his brother remained angry with Zeljka and obsessed with her new relationship. Gligo encouraged Sekulic to put it behind him and move on with his life. On the evening of December 8, 2015, Sekulic helped Gligo at his landscaping shop. Gligo expected Sekulic back the following morning to work.

         {¶15} During the same time, Zeljka lived in fear of Sekulic. She suffered a concussion in the car wreck and could not return to work right away. While at home recovering, she kept the blinds drawn and was too afraid to walk past any windows that did not have blinds. She purchased a gun for personal protection, but did not want to carry the weapon until she completed her concealed carry class. She scheduled the class for January 8, 2016.

         December 8, 2015 - Aggravated Murder.

         {¶16} The evening of December 8, 2015 was Zeljka's first night back to work at the Astoria. She finished her shift around 7:00 a.m. the following morning. A co-worker, Christine Truman, volunteered to walk Zeljka to her car, but Zeljka declined the offer and left the building. Sekulic had been in the parking lot most of the night, drinking and watching her through the windows of the nursing home. Sekulic was in a rental vehicle - a white GMC Terrain.

         {¶17} When Zeljka entered the parking lot, Sekulic exited the Terrain with a .45 caliber Ruger handgun he had stolen from his brother's shop the night before.

         {¶18} At the same time, Anthony Olivieri, IV was driving himself and his sister to school. His route took him down a road behind the Astoria, which provided a clear view of the Astoria parking lot. Olivieri heard a popping noise, which caused him to look in the direction of the Astoria parking lot. When he did, he witnessed Zeljka lying in the parking lot and Sekulic standing over her. He watched Sekulic shoot Zeljka twice. Olivieri's sister called 9-1-1.

         {¶19} Meanwhile, inside the nursing home, Truman also heard popping noises that she initially thought was maintenance people working on the air conditioner. Curious, she went to the window to investigate. When she pulled back the blinds, she saw Zeljka outside alone, lying in the parking lot about 15 feet away from the window. Truman gabbed another nurse and raced outside. When they reached Zeljka, they found her lying in a pool of blood, gasping for air. Truman called 9-1-1.

         {¶20} Sergeant Cline, Deputy Stauffer, and Deputy VanCamp of the Stark County Sheriffs Office arrived on the scene. They found Zeljka lying in a massive amount of blood and could see she had numerous bullet wounds. She appeared to be deceased, but Cline did what he could to help her. Before EMS arrived and took Zeljka, VanCamp secured the scene and Stauffer photographed the scene. Cline summoned the Bureau of Criminal Investigations crime scene unit to process the scene. The deputies determined that Sekulic was the suspect and was driving a white GMC Terrain. Surrounding law enforcement agencies were alerted and Sekulic's brother and father were contacted.

         {¶21} Deputy Quentin Robinson and a Massillon police officer went to the home of Sekulic's father, Jovan. As they walked toward the house, Jovan exited the house, walked toward the men and asked, "What did he do?" The officers told Jovan they needed to speak to Sekulic. Jovan called Gligo, who arrived at Jovan's house 10 minutes later.

         {¶22} As Sekulic fled towards his Akron home, the officers had Gligo call him. Gligo asked where he was, and said he and Jovan were waiting on him to start work for the day. Sekulic, playing dumb, said he had just woke up, but was on his way. Instead, Sekulic went to the Akron-Canton Airport. He dumped the rental vehicle in the long-term parking lot and retrieved his beige Chevy Malibu. He then began driving south on I-77.

         {¶23} When Sekulic failed to appear at Jovan's home, Robinson had Gligo call him again and put the call on speakerphone. Gligo asked where Sekulic was and he replied, "I killed her. Shot her twice in the head." When Gligo expressed disbelief, Sekulic explained, "I couldn't take it no more. I couldn't sleep, I just can't handle this." He then advised Gligo he was not coming to meet them.

         {¶24} Robinson took the phone and advised Sekulic he had heard everything, and that a peaceful resolve was desired. He asked Sekulic to come to Jovan's house and turn himself in. Sekulic replied, "You have no idea what I'm going through - you don't know how I feel." He eventually agreed to come to his father's home, but then never appeared.

         {¶25} Robinson asked Gligo if Sekulic had any weapons. Gligo said he did not. However, Gligo recalled that he, Gligo, kept a handgun at his shop. Sekulic was aware this gun was kept at the shop. Gligo called the shop and had someone check to see if the weapon was still at the shop. The gun was missing.

         {¶26} Trooper Stephen Roe of the Ohio State Highway Patrol Cambridge Post was working the afternoon shift on December 9, 2015. At the beginning of his shift, Roe was advised that a Stark County murder suspect was at large and believed to be driving a white GMC Terrain. Later Roe was advised that officers had found the Terrain abandoned at the Akron Canton Airport. A photo of Sekulic was provided to troopers.

         {¶27} Around 12:20 p.m., as Trooper Roe sat in a crossover on I-77, he noticed the driver of a small beige car began to pass a semi-truck. The driver saw Trooper Roe and slowed significantly. As the driver went past, he looked directly at Roe. Roe thought the driver looked like Sekulic, so he pulled out and followed.

         {¶28} As he followed, Trooper Roe ran the plate on the car. It came back as registered to Sekulic. He alerted other officers and formulated a plan to pull Sekulic over. After the other officers joined, Roe activated his lights. Sekulic pulled over, and was taken into custody without incident.

         {¶29} Trooper Roe took Sekulic to the Cambridge jail and Sergeant Mike Warner of the State Highway Patrol processed Sekulic's vehicle for impound. On the backseat of the car was the Ruger .45 caliber semiautomatic pistol stolen from Gligo's shop. The magazine of the gun was empty, but there was a round in the chamber. Also in the back seat were a backpack, an expired passport, various food items, and beer. A rifle with ammunition was found in the trunk.

         {¶30} Dr. Renee Robinson of the Stark County Coroner's Office performed Zeljka's autopsy. She observed three gunshot wounds to Zeljka's head. These fatal wounds caused massive brain and skull damage. She further observed non-fatal gunshot wounds to Zeljka's left hand, left forearm, and two wounds to her right thigh. One of the wounds to Zeljka's thigh shattered her femur. Robinson ruled Zeljka's cause of death as gunshot wounds to the head, and the manner of death as homicide.

         {¶31} The shell casings and bullets recovered from the scene and Zeljka's body were fired from the Ruger.

         {¶32} At trial, Sekulic testified on his own behalf. As for the November incident, he claimed he only struck Zeljka's car once and that it was unintentional. He additionally claimed he stopped and got out of his truck to see if she was all right, but then panicked and fled the scene. He further denied that he had a gun that day, and denied telling his brother and Lamtman that he had a gun or disposed of a gun.

         {¶33} Sekulic testified that late on December 8, 2015 he bought two six packs of Bud Light Platinum and parked at the Astoria. Sekulic consumed the alcohol and went to purchase more alcohol from a gas station. Sekulic testified that he intended to kill himself, but he saw Zeljka and became overwhelmed with emotions and he shot her. Sekulic claimed, "I just blacked out." He admitted shooting her, but claimed he remembered only getting out of and then back into the GMC. He then once again "panicked" and fled the scene.

         {¶34} After hearing all the evidence and deliberating, the jury found Sekulic guilty of aggravated murder and further found Sekulic used a firearm during the commission of the offense. The jury also found Sekulic guilty of attempted murder and felonious assault, but found he did not possess a firearm during the commission of either crime.

         {¶35} The trial court proceeded immediately to sentencing. The state and counsel for Sekulic agreed that the attempted murder conviction and the felonious assault conviction should merge for sentencing. The state elected to proceed to sentencing on the attempted murder charge.

         {¶36} For aggravated murder, Sekulic was sentenced to life without the possibility of parole, and an additional 3 years to be served prior to and consecutive with the life sentence for the firearm specification. For attempted murder, Sekulic received 11 years. The trial court ordered Sekulic to serve this sentence consecutive to his sentence for aggravated murder.

         Assignments of Error

         {¶37} Sekulic assigns four assignments of error for our review, {¶38} "I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

          {¶39} "II. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.

         {¶40} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED APPELLANT'S MOTION FOR SEPARATE TRIALS.

         {¶41} "IV. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO SERVE CONSECUTIVE SENTENCES."

         I.

         {¶42} In his first assignment of error, Sekulic argues that his convictions are against the manifest weight of the evidence produced by the state at trial and further, ...


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