Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No.
0093662, Montgomery County Prosecutor's Office Attorney
WILDER, Atty. Reg. No. 0074057 Attorney for
AVELARDO ROSALES Defendant-Appellant, Pro Se.
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
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
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 ...