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State v. Starkey

Court of Appeals of Ohio, Eleventh District, Ashtabula

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
KYLE W. M. STARKEY, Defendant-Appellant.

         Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CR 00487.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).

          Thomas Rein, 820 West Superior Avenue, (For Defendant-Appellant).


          DIANE V. GRENDELL, J.

         {¶1} Defendant-appellant, Kyle W. M. Starkey, appeals his convictions and sentence for Murder, Felonious Assault, Tampering with Evidence, and Domestic Violence, following a jury trial in the Ashtabula County Court of Common Pleas. The issues to be determined by this court are whether convictions for Assault and Murder are supported by the weight and sufficiency of the evidence when there is witness testimony that the defendant hit the victim until she died; whether consecutive sentences are properly ordered when the sentencing judgment does not state the exact language of the required statutory findings; whether a motion to change venue is properly denied when the court dismisses for cause any jurors who stated they could not be fair in light of pretrial publicity; whether a trial court errs by excluding testimony about a witness' general untruthfulness on a matter unrelated to the crimes at issue; and whether a court must make a finding that a defendant has an ability to pay court costs. For the following reasons, we affirm the judgment of the court below.

         {¶2} On September 2, 2015, the Ashtabula County Grand Jury issued an Indictment, charging Starkey with Murder (Count One), an unclassified felony, in violation of R.C. 2903.02(A); Murder (Count Two), an unclassified felony, in violation of R.C. 2903.02(B); Felonious Assault (Count Three), a felony of the second degree, in violation of R.C. 2903.11(A)(1); Tampering with Evidence (Count Four), a felony of the third degree, in violation of R.C. 2921.12(A)(1); Gross Abuse of a Corpse (Count Five), a felony of the fifth degree, in violation of R.C. 2927.01(B); and Domestic Violence (Count Six), a misdemeanor of the first degree, in violation of R.C. 2919.25(A).

         {¶3} Prior to trial, Starkey moved for a change of venue, which was denied. A trial was held before a jury on March 20-29, 2017. The following pertinent testimony and evidence were presented:

         {¶4} Glenna Patton, a friend and coworker of the victim, Mandy Gottschalk, testified that on August 14, 2015, she arrived at Gottschalk's house on Washington Avenue, in Ashtabula to go out for the night. Gottschalk shared the home with Starkey, who was her boyfriend. When Patton arrived at the home, Gottschalk, Starkey, and a friend, Ryan McBride, entered her vehicle. McBride and Starkey had a bookbag full of beer. Patton drove to Geneva on the Lake, where she dropped off McBride and Starkey at a park.

         {¶5} Patton and Gottschalk proceeded to several bars in the area. Later that evening, they saw Starkey and McBride at a bar with two females. Patton observed Starkey "flirting" with the girls. Patton indicated that Gottschalk became jealous and angry and had a conversation with Starkey, which she did not hear. The two eventually ended the discussion and kissed. Patton and Gottschalk left the bar, and at around 1 a.m. drove back to Ashtabula. Patton dropped Gottschalk off at her house around 1:30 or 2 a.m.

         {¶6} Regarding Starkey and Gottschalk's relationship, Patton described that Starkey called Gottschalk derogatory names and had once pulled her breasts out of her shirt in front of friends. She also described an incident during a "dark humor game when Starkey indicated that "if he ever killed somebody he had a blue tarp and would wrap them up in plastic and bury them close until he had a chance to move them." She also testified that a few weeks before Gottschalk's death, Starkey had been looking for an apartment and had said he was "tired" of Gottschalk.

         {¶7} Patton learned Gottschalk was missing on August 16 and went with Starkey to report her missing a few days later. Afterward, he requested that Patton drive him to various locations, saying he wanted "to make sure that her body wasn't there." The night before Gottschalk's body was discovered, Starkey came to Patton's apartment and was anxious, shaking, and sweating.

         {¶8} Patton indicated that the police had towed her car "just to see if anything was committed in the car." She conceded that she had not told police about Starkey's statements regarding the tarp or insults to Gottschalk.

         {¶9} Ryan McBride, Starkey's friend and coworker, testified that he was with Starkey on the night of August 14 into the early morning of August 15, after being dropped off in Geneva on the Lake by Patton and Gottschalk. The men met two women that night and later ran into Patton and Gottschalk at a bar. Gottschalk "looked upset" because Starkey was with another woman. Later, the two men took a taxi back to Starkey and Gottschalk's home, arriving around 3:00 or 3:30 a.m.

         {¶10} According to McBride's testimony, he knocked on the front door, which Gottschalk did not immediately answer. Starkey then began kicking the door and kicked it open. Gottschalk was standing near the door, trying to open it. McBride testified that Starkey entered and began punching Gottschalk with his fist until she fell onto the couch. He continued to punch her and when McBride tried to intervene, he threatened him with a switchblade knife. Starkey threw Gottschalk to the floor and called her a bitch, continued to hit her head and kicked her in the stomach. Starkey said, "she does this all the time" and "she knows what she's done." When Starkey stopped attacking Gottschalk, McBride could tell she was dead. Starkey began crying and said, "I can't believe this happened" and "I don't know what I did."

         {¶11} According to McBride, Starkey told him to help clean the house. Starkey used bleach to clean up blood in the living room where the attack occurred and the two wore latex gloves. Starkey dragged Gottschalk to the bathroom, put her in a closet, and padlocked the door.

         {¶12} Later that day, August 15, the men spent time with the two women from the prior night. The next day, Gottschalk's mom and the police came to the home looking for her, but did not enter the house. On August 17, Starkey told McBride they needed to bury Gottschalk. Starkey removed her clothing and wrapped her in a tarp, which he had just removed from the package, while McBride put duct tape over her legs. She was placed in a trash can and the two took her across the street by abandoned buildings in a wooded area. Starkey dug a grave, removed her from the tarp, placed her inside, filled the grave and put branches over it. He placed the tarp in the trash can, returned it to the home, and put the shovels used to dig the grave under the porch. McBride identified items presented as evidence that were used, including gloves, the tarp, and duct tape.

         {¶13} McBride testified that he had reached a plea deal in relation to his participation in the crime, agreeing to a five-year prison sentence. He admitted that when first interviewed by police he was dishonest because he was scared and admitted that he did not provide all of the details of the incident initially.

         {¶14} Trisha Furman, Gottschalk's coworker and friend, testified that the couple would sometimes get in "heated arguments." On August 17, Furman was filling out paperwork with Starkey at their place of employment. When listing beneficiaries, Starkey indicated that he didn't have anyone. When Furman inquired about Gottschalk, he said "fuck that bitch" and did not mention she was missing. The company's human resources assistant, Michelle Childs, also testified that Starkey made that statement.

         {¶15} Regenea Brazil, Gottschalk and Starkey's coworker, also testified that Starkey said while playing a game with friends that he "had a tarp big enough to hide a body if he needed to." She went to the Washington Avenue house a few days after Gottschalk went missing but did not notice or smell anything unusual.

         {¶16} Stacie Vencill, Gottschalk's friend, went to her house on August 19 after learning she was missing, and described Starkey's demeanor as cold and lacking emotion. During a search conducted on August 21, Vencill observed Starkey briefly enter a wooded area near his house, close to where the body was ultimately discovered. When she saw Starkey again on August 23, he was agitated and at one point asked "they can't get a search warrant without circumstantial evidence, right?"

         {¶17} On August 19, Sergeant Brian Cumberledge went to Starkey and Gottschalk's residence. He noticed gnats inside the home, as well as Gottschalk's purse, identification, and inhaler.

         {¶18} Two detectives, Lieutenant Dennis Dibble and Lieutenant Joseph Cellitti, investigated further on August 20. They went to the abandoned Zehrco Plastics property across from Starkey and Gottschalk's home but did not find anything. They also entered the house but did not notice anything abnormal.

         {¶19} On August 21, Karen Allison, who lives on Riverside Drive in Ashtabula, described finding a backpack near her yard outside, which contained items such as a tarp and gloves. While looking at the backpack, Starkey, whose stepmother lived next door, asked what she was doing. After she went inside, she saw Starkey looking inside the backpack. Allison called the police and while waiting, Starkey mentioned his girlfriend was missing, that he saw her bra in the backpack, and said "he thinks he was being set up." Starkey offered to the police to throw the items away.

         {¶20} Patrolman Donald Martin of the City of Ashtabula Police Department responded to Allison's call. As he approached the backpack, he could smell a "rancid odor similar to a dead carcass and saw maggots crawling inside of the bag. The bag contained a tarp, pieces of duct tape, a bandana, a black bra, ear plugs, a utility knife, and rubber gloves.

         {¶21} Stacey Weatherbee, Starkey's stepmother, went to pick up Gottschalk for work on August 17, at which time Starkey indicated that he did not know where she was, that they had gotten into an argument and she was gone when he got home on Friday. On the date the backpack was discovered, Starkey came inside and said "he was gonna go to prison" because they found the backpack and that "somebody's trying to set me up." Weatherbee said she recognized the backpack as Starkey's "work bag." She identified some of the items inside as his, including the earplugs.

         {¶22} Sergeant Brian Cumberledge testified that he decided to search the abandoned Zehrco Plastics area across from Starkey's home after speaking with Patton. On August 24, Deputy Evan Wolff observed a mound of dirt covered with branches. He noticed a piece of duct tape nearby and then observed two toes protruding through the dirt. Detective Sean Ward excavated the body, which was ultimately found to be Gottschalk's.

         {¶23} Justin Soroka, a special agent with the Ohio Bureau of Criminal Investigation (BCI) testified that he and other agents investigated the crime scene at the Washington Avenue home on August 25. A search revealed various items, including two shovels under the porch, a trash can in the rear of the residence, and an empty box of vinyl gloves under the sink. Items found in the trash can outside included a towel, cleaner, gloves, and a wrapper for a tarp. Soroka observed reddish brown stains consistent with blood on various items inside the house, including work boots, an office chair, carpet near the bathroom, and on the walls and shoe rack near the front door. He also testified that it looked as though the front door had been damaged. A piece of duct tape on the floor near the master bedroom was collected.

         {¶24} Brenda Butler, a former BCI special agent, performed a blood stain pattern analysis at the Washington Avenue home. She identified various areas of blood spatter in the living room, near the front door, and diluted blood spatter near the bathroom sink. An application of luminol indicated that there was a "blood shedding event" in the doorway area of the living room. She also determined that there was an attempt to clean up blood in areas near the front door and the bathroom. Butler did not see an indication of bleach being used to clean.

         {¶25} Kylie Graham, a BCI forensic scientist, testified that blood on the walls of the home was tested and belonged to Gottschalk. Many other items Graham tested for DNA were "not sufficient for comparison, " but Starkey's DNA was on ...

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