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State v. Ash

Court of Appeals of Ohio, Seventh District, Monroe

March 15, 2018


          Criminal Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 16 MO 0002

          For Plaintiff-Appellee: Atty. Philip Bogdanoff Special Prosecutor, Monroe County Monroe County Prosecutor's Office Atty. James L. Peters.

          For Defendant-Appellant: Atty. Edward A. Czopur.

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite, Judge.


          ROBB, P.J.

         {¶1} Defendant-Appellant Ralph "Sonny" Ash appeals his convictions in the Monroe County Common Pleas Court for murder, abuse of a corpse, and having weapons while under disability. Appellant assigns as error ineffective assistance of counsel for failing to file a suppression motion alleging the first search warrant was based on stale information. He contends the court erred in admitting ballistics testimony where the expert could not identify or exclude two firearms as having fired a bullet recovered from the victim's skull. He complains an anthropologist testified to a matter which was outside her area of expertise and which was not specified in her report. He also contests the admission of other acts evidence from three witnesses, adding confrontation clause and hearsay arguments as well. For the following reasons, the trial court's judgment is affirmed.


         {¶2} Appellant and Tracey Heskett (the victim) were married for a brief time in 1998. After some time apart, they resumed a relationship which ebbed and flowed over the course of 15 years. Appellant voiced he could not "get rid of her and said he called her "herpes" as a result. He said he "cussed her every day" calling her a "drunken whore, thieving bitch." (St.Ex. 36). The victim lived in a trailer on her mother's property, and Appellant lived in a house in the same township.

         {¶3} On February 13, 2015, Appellant picked up the victim at her trailer. She left her phone with her aunt, who moved in with her two weeks prior. The victim later called her aunt, voicing she had to sneak Appellant's phone to make the call after he threw her out by the hair. (4 Tr. 149).[1] The victim's aunt then drove to Appellant's house to retrieve the victim.

         {¶4} The next day, Saturday, February 14, 2015, Appellant called the victim at 4:30 a.m. He accused her of stealing his two wallets and threatened to report her to the police if she did not come over to find or return his wallets. (4 Tr. 150); (St.Ex. 36). They spoke again at 5:33 a.m. (2 Tr. 13-14). The victim left in her vehicle at approximately 6:30 a.m. Leaving her phone with her aunt, she instructed her aunt to call Appellant's phone if she did not return by 9:00 a.m. (4 Tr. 152). The victim never returned. Her aunt called Appellant's phone throughout the weekend.

         {¶5} On Monday morning, February 16, 2015, the victim's aunt contacted the Monroe County Sheriff's Office to report the victim was missing. An officer visited Appellant's residence around 9:00 a.m. Appellant invited the officer into his house. Appellant confirmed the victim arrived at his house before daylight on the morning of February 14, 2015. (1 Tr. 304). According to Appellant: two "pipelines" arrived in front of his house in a white company truck just after daylight and sounded the horn; when he went outside, one of the men asked if Tracey was there; and the victim walked toward the truck, passing him without making any comment. (1 Tr. 304).

         {¶6} The victim's vehicle was in Appellant's driveway covered with two to four inches of snow. The officer found the victim's driver's license in the center console of her vehicle. Appellant's vehicle was in the driveway, and it was free from snow. Appellant opened his vehicle for the officer and consented to the officer looking around his home. The house appeared "uninhabitable" to the officer, and thus, he could not discern if anything appeared out of place. (1 Tr. 308).

         {¶7} Appellant said the victim did not remove her coat while at his house and was wearing a turquoise-green coat, a brown knit hat, and multiple layers of clothing. (1 Tr. 305-306). The victim's aunt confirmed the victim was wearing a turquoise jacket and a brown knit hat. She noted the victim always wore multiple layers of clothing and described some of the layers the victim wore that day: a red plaid shirt, a pink shirt, other top layers, and jeans with pants underneath. (4 Tr. 153). After speaking to the victim's aunt, the officer returned to Appellant's house. This time, the officer looked upstairs where he noticed two firearms in Appellant's bedroom. (1 Tr. 315).

         {¶8} The Sheriff's Office distributed missing person fliers, visited businesses, and went to various well sites and well pads due to Appellant's "pipeliner" story. They investigated at least three tips which did not add to the investigation: the victim's sister-in-law asked the police to check an illegal dump site; a driver saw a woman urinating next to a truck along a road; and a store employee heard a "pipeliner" make a sarcastic remark about the missing person flier. Appellant reiterated his story (about pipeliners picking up the victim) to an officer who visited him on February 20, 2015 to ascertain if he had heard from the victim. (3 Tr. 23, 28).

         {¶9} A lieutenant became involved in the case on or about February 25, 2015. He visited Appellant to hear the story about the pipeliners. Appellant invited him into the house and subsequently pried open the frozen lid from a deep stone well near the porch so the lieutenant could check inside. (2 Tr. 45-46). Besides the disarray in the house, there was "junk, " including a refrigerator, on the front porch and in the yard; in discussing the yard items, Appellant told the lieutenant the dummy hanging from his tree was supposed to be a pipeliner who broke a branch off a tree. (2 Tr. 51-52).

         {¶10} Appellant confirmed he called the victim early on February 14, 2015, accused her of stealing his wallets, and demanded she bring back the wallets or find them. (2 Tr. 46). Yet, he said they did not look for the wallets or fight when she arrived that morning, estimating the time of arrival as 7:00 a.m. (2 Tr. 46-47). He noted they did not get along and she would often leave for a time after they fought; he claimed she would be back and she does this all the time. (2 Tr. 48).

         {¶11} The lieutenant obtained the victim's phone records and ran Appellant's criminal history. He discovered Appellant had a West Virginia felony conviction for unlawful assault. As Appellant was not permitted to possess a firearm due to this prior conviction and the first officer to visit Appellant's house noticed firearms, a search warrant for guns was prepared. The search warrant was executed on March 11, 2015. Twelve firearms were confiscated, along with 2, 000 rounds of ammunition and black powder for reloading ammunition. The officers noticed Appellant's two wallets on his nightstand. They saw a homemade whip with blood on it and noticed what appeared to be blood on a pair of jeans. A partially burned bright turquoise-green coat was spotted in a burn pile forty or fifty yards from the house. (2 Tr. 57, 81-82). A gray sweatshirt and pieces of burnt carpet were in the burn pile as well. Appellant was immediately arrested for having weapons while under disability.

         {¶12} During his interview that day, Appellant said the guns belonged to the victim but acknowledged helping her reload the ammunition with powder. Appellant then described where he obtained the .22 caliber Ruger revolver which the police discovered behind his chair. He opined the victim left the state, noting many of the pipeliners who passed by his house were from another state. He claimed the victim invited pipeliners into his house once when he was in jail. He said the victim took his two wallets and he never got them back. He then described in detail the two stolen wallets which officers spotted on his nightstand (one had a Pittsburgh Steelers emblem embossed into brown leather and one was black leather with his identification inside). (2 Tr. 116, 118).

         {¶13} Based on these developments, a second search warrant, seeking evidence of an assault, was executed the next day. A gun box and a box of ammunition were spotted on the ground behind a shed. The gun box contained a .38 caliber Smith & Wesson revolver, four unspent .38 cartridges, and one spent .38 cartridge. (1 Tr. 327). Bones and a belt buckle were observed among ashes in a 55 gallon drum used as a burn barrel. When the barrel was tipped over, a strong odor of fuel emanated from the contents and a charred body part was revealed; it was half of a human head and neck with one shoulder and the top of an arm still attached. (1 Tr. 319; 2 Tr. 108, 119). A red shirt was visible on the shoulder. Other bone fragments were recovered as well. An agent with the State of Ohio's Bureau of Criminal Investigation (BCI) documented what appeared to be a trail of burnt fabric pieces between the open burn pile and the burn barrel. (3 Tr. 182, 191, 197-198).

         {¶14} The forensic pathologist performed an autopsy of the remains and discovered a bullet in the victim's left upper neck near the second cervical vertebrae. (4 Tr. 35, 48). He opined the victim was alive when shot as there was blood around the bullet. (4 Tr. 61). DNA testing showed the fluid recovered during the autopsy was consistent with the victim's DNA (one in one trillion, 519 billion). (3 Tr. 58-59, 66). A mass of three layers of clothing from the main body part recovered was examined; the forensic pathologist found blood between the layers of fabric and noticed a strong petroleum smell. (4 Tr. 45-46). The State Fire Marshal found this fabric contained gasoline. (3 Tr. 42, 44).

         {¶15} The forensic pathologist observed the main body part was cut from the remainder of the body along a single plane in what appeared to be a single pass of a blade. (4 Tr. 30, 33). He opined the cut was made with an electrical, mechanical saw, not with a chainsaw or the brute force of a person using a handsaw or hacksaw. (4 Tr. 36-37). Other recovered remains were bone fragments which represented the upper arm, lower leg, pelvis, and spine. A piece of long bone appeared to have a chop in it as if made by a hatchet.

         {¶16} The forensic pathologist consulted with an anthropologist as he was unsure if the fire could have caused the mark and because he was not an expert on the changing of bone color due to heat exposure. (4 Tr. 40-41, 44). The anthropologist testified to the range of colors in the bones: tan was the standard color of a bone which would have been exposed to the least heat; black meant exposure to higher heat; and white was the final (calcine) stage before ash. (4 Tr. 70-72). She noted the humerus was still tan. She confirmed the bone fragments represented all segments of the body and the main body part had been cut along one plane. As for the long bone fragment with a "penetrating" black line, she concluded this was not due to the fire but was due to trauma caused by an implement. (4 Tr. 84).

         {¶17} Upon receiving the coroner's report, the police obtained a third search warrant in June 2015 to look for cutting implements. Appellant had been in jail since his arrest. It appeared someone had entered his house by breaking in through the side door. Items such as a level, a machete, and a steel trap were set out. There were also missing items such as two chainsaws, some hanging photographs, and a television.

         {¶18} Besides demonstrating the human remains were those of the victim, DNA evidence showed the blood on the whip was consistent with Appellant's (rather than the victim's) DNA. As to other items seized for potential blood evidence, some did not test positive on a presumptive blood test at the lab (jeans) and others tested presumptively positive but DNA could not be obtained (hacksaw blade, hatchet, sweatshirt). (3 Tr. 62, 71, 74, 76).

         {¶19} A BCI firearms expert compared the .22 caliber bullet recovered from the victim with the ammunition and five of the firearms recovered during the execution of the search warrants. He testified in accordance with his report that two of the firearms could neither be identified nor eliminated as having fired the bullet recovered from the victim.

         {¶20} Appellant was indicted for aggravated murder (with prior calculation and design) with a firearm specification, abuse of corpse, and having weapons while under disability. The jury convicted him of the lesser included offense of murder, abuse of a corpse, and having weapons while under disability. The court sentenced Appellant to fifteen years to life for murder plus three years on the firearm specification, twelve months for abuse of a corpse, and thirty-six months for the weapons offense, all to run consecutively. The within timely appeal followed.


         {¶21} Appellant sets forth five assignments of error, the first of which contends:

"Appellant was denied the effective assistance of counsel, depriving him of a fair trial pursuant to both the United States and Ohio constitutions, in that counsel failed to suppress the search warrant executed on or about March 11, 2015 which was based on stale evidence."

         {¶22} As Appellant acknowledges, defense counsel's failure to file a motion to suppress does not constitute ineffective assistance of counsel per se. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. The failure to file a motion to suppress is subject to the standard two-pronged analysis for evaluating claims of ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): deficient performance and prejudice. State v. Spaulding, ___ Ohio St.3d ___, 2016-Ohio-8126, ___ N.E.3d ___, ¶ 94, citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). More specifically, where a defendant complains trial counsel failed to file a suppression motion, the defendant must prove there was a valid ground to suppress the evidence in dispute. Spaulding, ___ Ohio St.3d ___, 2016-Ohio-8126 at ¶ 94. The defendant must also show there is a reasonable probability the result of the trial would have been different if the evidence had been suppressed. Id.

         {¶23} As to prejudice, Appellant points to the mass of evidence against him which was derived solely from the execution of the three search warrants. He contends only the first search warrant was based upon stale information. As he points out, the second warrant was based upon evidence gained during the execution of the first search warrant, and the third search warrant was based upon evidence gained during the execution of the second search warrant. He therefore concludes if the first search warrant is invalid, then the evidence stemming from the other two search warrants would be suppressed as the fruit of the first unlawful warrant.

         {¶24} In arguing there were valid grounds for suppression, Appellant contends the information relied upon to obtain the warrant for firearms was stale because the police did not seek a warrant soon after the first officer saw two guns at Appellant's house on February 16, 2015. Appellant emphasizes the search warrant was executed on March 11, 2015. This is 23 days from the day the officer spotted the firearms.

         {¶25} "For a search warrant to issue, the evidence must be sufficient for the magistrate to conclude that there is a fair probability that evidence of a crime will be found in a particular place. The reviewing court then must ensure that the magistrate had a substantial basis for concluding that probable cause existed." State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 35. Some considerations to be taken into account include "how stale the information relied upon is when the facts relied upon occurred, and whether there is a nexus between the alleged crime, the objects to be seized, and the place to be searched." Id. at ¶ 34. When reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant, the reviewing court affords great deference to the issuing court's probable cause determination, and marginal cases are to be resolved in favor of upholding the warrant. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of syllabus.

         {¶26} In Young, the question of staleness was presented because a search warrant was based upon a statement by one witness who saw child pornography in the defendant's house three months before the warrant was issued and another witness whose information was not dated in the warrant application. See State v. Young, 37 Ohio St.3d 249, 257, 525 N.E.2d 1363 (1988).[2] The question to be answered was whether the court issuing the search warrant had "probable cause for believing the materials described could still be found where they had been observed." See id. Applying a totality of the circumstances test, the Court held: "Under the circumstances of this case, which involves an offense of a continuing nature, we believe that the facts stated in the affidavit justified a finding of probable cause at the time of the issuance of the warrant." Id., citing Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932). In upholding the warrant, the Court mentioned how search warrant affidavits must be tested and interpreted in "a commonsense and realistic fashion." Id. (because a "grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting"), quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

         {¶27} This court has stated a search warrant affidavit must present timely information and include facts so closely related to the time of issuing the warrant as to justify a finding of probable cause at that time. State v. Rapp, 7th Dist. No. 12 MA 117, 2013-Ohio-5384, ¶ 36. At the same time, we observed: "There is no arbitrary time limit on how old information can be; the alleged facts simply must justify the conclusion that the contraband is present on the premises to be searched." Id. We listed some factors to consider when examining whether information in a search warrant's affidavit is stale: (1) the character of the offense; (2) the accused; (3) whether the item to be seized is perishable and easily transferable or of enduring utility to its holder; (4) the place to be searched; and (5) whether the information in the affidavit relates to a single isolated incident or it involves protracted or ongoing criminal activity. Id.

         {¶28} Here, an officer saw two guns in Appellant's house under his bed (while conducting a consensual search for a missing person) on February 16, 2015. Possession of firearms is not per se illegal. Appellant's criminal history was not obtained until sometime after February 25, 2015, when the lieutenant became involved in the missing person case and visited Appellant's home.[3] Information had to be retrieved from West Virginia. This information showed Appellant was not permitted to possess firearms and was in violation of the Ohio statute defining the offense of having weapons while under disability. The search warrant was executed 23 days after the guns were observed. This appeared to be less than two weeks (possibly only 6 days) after it was learned that Appellant's possession of the guns constituted an offense. See Young, 37 Ohio St.3d at 257 (noting "the affidavit was sworn to within one week after the witness was interviewed"). Although the search warrant was executed on March 11, 2015, the warrant may have been issued prior to this date, which would make the information even closer ...

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