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State v. Rosales

Court of Appeals of Ohio, Second District, Montgomery

January 19, 2018

STATE OF OHIO Plaintiff-Appellee
AVELARDO ROSALES Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 15-CR-2346/1

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor's Office Attorney for Plaintiff-Appellee

          LUCAS WILDER, Atty. Reg. No. 0074057 Attorney for Defendant-Appellant

          AVELARDO ROSALES Defendant-Appellant, Pro Se.


          HALL, J.

         {¶ 1} Avelardo Rosales appeals from his conviction and sentence on one count of felony murder, one count of felonious assault, one count of discharging a firearm into a habitation, and two firearm specifications.

         {¶ 2} Rosales' appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for our review. We notified Rosales of the Anders filing and gave him an opportunity to file his own brief. Rosales responded with a pro se brief in which he raises seven assignments of error.

         {¶ 3} The present appeal stems from a shooting that occurred outside a Huffman Avenue apartment on the evening of August 2, 2015. Prior to the shooting, Amanda Draughn was inside the apartment with several other people, including Jeremy Combs, John Humble, and her brother, Dallas Draughn. Around 8:00 or 9:00 p.m., Rosales arrived with two other individuals to sell Amanda some Xanax pills. Before the transaction took place, an argument or minor altercation occurred between Humble and Rosales. The incident resulted in Rosales and his companions abruptly leaving.

         {¶ 4} Amanda Draughn called Rosales after he had left to ask what had happened. Rosales accused her of attempting to "set him up." She denied the allegation and agreed to meet him at a gas station just down the street to purchase the Xanax. After she walked to the gas station, Rosales arrived in the passenger seat of a blue pick-up truck. Rosales exited the truck, asked if Humble was still at the apartment, and requested his phone number. Amanda instead gave Combs' number to Rosales, who told her to remain at the gas station while he went to talk to Humble. According to Amanda, Rosales then sped down Huffman Avenue toward her apartment. She had a "bad feeling" and began running after the truck. Amanda testified at trial that the truck remained in her sight the entire time and that she saw it stop in front of her apartment. As she approached, she saw Rosales roll down the passenger window and shoot her brother Dallas Draughn, who was on the porch with Combs. She testified that she reached Dallas while the shooting was in progress and that the blue pick-up truck sped away after her brother was shot. Amanda also testified that Dallas made statements to her about being in pain.

         {¶ 5} For his part, Combs testified that he was upstairs in the apartment when he heard the gunshots. He ran outside and saw Dallas on the ground and a blue pick-up truck in the road. Combs recalled hearing Dallas say only "Mexicans." Combs further testified that he saw Amanda Draughn still running toward them and that she arrived quickly. Dallas Draughn later was pronounced dead at an area hospital.

         {¶ 6} One of the shots fired struck fifteen-year-old K.M., who lived in the apartment next door to Amanda Draughn. K.M. testified that he was on a couch in his grandmother's living room when he heard gunshots and a bullet passed through his arm. K.M.'s grandmother testified that she later observed multiple bullet holes in her apartment and found actual fired bullets. Investigators found ten spent .45 caliber shell casings on a sidewalk in front of the apartment building. A firearm examiner with the Miami Valley Regional Crime Lab opined that the casings were from the same firearm.

         {¶ 7} Later that night or in the early morning hours of the next day, Rosales showed up unexpectedly at the home of Juanita Buschorn, the grandmother of a child Rosales had with Buschorn's daughter. Buschorn testified that Rosales seemed upset and said, "Juanita, I think I just killed somebody." Rosales exited her house soon thereafter without saying where he was going. Amanda Draughn testified that she also spoke to Rosales shortly after the shooting. According to Amanda, he called and told her that he did not mean to kill Dallas and that the bullet was intended for John Humble.

         {¶ 8} Amanda also spoke to police on the night of the shooting and identified Rosales as the gunman. After obtaining Rosales' cell phone number, detectives secured "ping" data for his phone and tracked his travel. The first ping occurred around 1:00 a.m. near the intersection of Interstate 70 and U.S. Route 127 in Preble County. Based on subsequent pings, detectives determined that Rosales was heading west toward Indianapolis. They pursued him to a location east of Indianapolis, where the pinging stopped near several hotels and other businesses. The detectives learned that Rosales had stopped at a hotel to pick up a relative before continuing west. The detectives then discontinued their pursuit and returned to Dayton. Upon their return, however, they received a ping from a location west of St. Louis, Missouri. The information was forwarded to Missouri detectives who quickly located Rosales working with a roofing crew and arrested him.

         {¶ 9} While in jail in Missouri awaiting his return to Ohio, Rosales made a number of phone calls, which were recorded. Some of the calls included discussions of the shooting and contained incriminating statements by Rosales. On one call, he dismissed the possibility of claiming self-defense because his actions would seem premeditated. He also disputed a news account that the incident was a drive-by shooting. He stated: "No, I stood there and did my thing; we didn't drive by." In another call, Rosales stated that he "just let it loose" and that he "still wanted to go back and fix up the other one." In another call, Rosales stated that he was still mad and that he would "do it all over again if I had to." In yet another call, he stated: "Well, now they know that I ain't [no] f***ing b***h. They all ...

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