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State v. McGowan

Court of Appeals of Ohio, Fifth District, Stark

June 25, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JONATHAN C. MCGOWAN Defendant-Appellant

          Appeal from the Stark County Court of Common Pleas, Case No. 2018CR0283A

          For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section

          For Defendant-Appellant GEORGE URBAN

          JUDGES: Hon. W. Scott Gwin, P.J Hon. William B. Hoffman, J. Hon. Craig R. Baldwin J.

          OPINION

          Hoffman, J.

         {¶1} Defendant-appellant Jonathan C. McGowan appeals his convictions and sentence entered by the Stark County Court of Common Pleas, on three counts of attempt to commit murder with repeat violent offender and firearm specifications; three counts of felonious assault with repeat violent offender and firearm specifications; two counts of domestic violence; one count of having weapons while under disability; one count of discharge of a firearm on or near prohibited premises; one count of improperly handling firearms in a motor vehicle; and one count of child endangering, following a jury trial. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE CASE AND FACTS

         {¶2} On February 20, 2018, the Stark County Grand Jury secretly indicted Appellant on three counts of attempt to commit murder, in violation of R.C. 2903.02(A), with repeat violent offender and firearm specifications; three counts of felonious assault, in violation of R.C. 2903.11(A)(2), with repeat violent offender and firearm specifications; two counts of domestic violence, in violation of R.C. 2919.25(A); one count of having weapons while under disability, in violation of R.C. 2923.13(A)(2); one count of discharge of a firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3)(C)(1); one count of improperly handling firearms in a motor vehicle, in violation of R.C. 2923.16(A); one count of child endangering, in violation of R.C. 2919.22(A); and one count of menacing by stalking, in violation of R.C. 2903.211 (A)(1 (B)(2)(b).

         {¶3} Appellant appeared before the trial court on March 2, 2018, and entered a plea of not guilty to the Indictment. Appellant filed a motion to suppress on March 20, 2018, arguing the trooper failed to advise him of his Miranda rights when he was detained in Summit County Jail on an unrelated charge; therefore, any statements Appellant made to the trooper should be suppressed. The trial court conducted a hearing on Appellant's motion on April 25, 2018. Trooper Daley with the Ohio State Highway Patrol testified at the hearing and submitted the audiotape of the interview he conducted with Appellant at the Summit County Jail. Following the hearing, the trial court denied the motion to suppress and the matter proceeded to jury trial on April 30, 2018. The repeat violent offender specifications were tried to the bench.

         {¶4} Thaddaeus Rosser, Lakisha McGowan's brother, testified, Lakisha and Appellant were married on February 23, 2010. Lakisha and Appellant had a son, Jonathan McGowan, Jr., together prior to their marriage. Rosser indicated, in January, 2018, Lakisha and Appellant were separated and were living apart. Lakisha was living on Evans Street in Akron, Ohio. Rosser planned to drive Lakisha and Jonathan, Jr. to South Carolina on Sunday, January 14, 2018, "[t]o get her to a safer place." Trial Tr., Vol. II at 163. His sister had rented a U-Haul with a trailer in order to transport her SUV. They intended to depart Akron at 5 a.m. on January 14th, but overslept.

         {¶5} Rosser, who was driving the U-Haul, proceeded south on Interstate 77. Jonathan, Jr. sat between Rosser and Lakisha on the cabin bench seat. As they approached the Hall of Fame Bridge, Rosser heard at least four loud "booms". The driver's side window shattered after the first or first couple of booms, and subsequently the window completely broke. Rosser was unable to determine what other vehicles were on the highway at the time. Pieces of glass and mirror struck Rosser in the face and hand. Rosser heard Jonathan, Jr. screaming. Rosser maneuvered the U-Haul off the highway and pulled into a gas station.

         {¶6} Rosser examined the U-Haul to determine what had occurred. He observed holes in the rear view mirror and the driver's side door. While Rosser was examining the vehicle, Lakisha called the police. Rosser did not receive medical attention. Paramedics tended to Jonathan, Jr., and he was subsequently transported to the hospital.

         {¶7} On cross-examination, Rosser testified he advised Trooper Daley he had seen a red and silver pick-up truck travel past the U-Haul following the incident. Rosser acknowledged he did not see the individual who shot at them.

         {¶8} Ohio State Highway Patrol Trooper Justin Daley was assigned to investigate the January 14, 2018 shooting incident on Interstate 77 South, near mile post 110. When he arrived at the Canton Post, he spoke with the responding officers. Trooper Daley briefly spoke with Rosser, Lakisha, and Jonathan, Jr., then examined the U-Haul. The trooper observed bullet holes in the driver's door area, the left rear view mirror, and inside the passenger compartment. After his initial view of the U-Haul, Trooper Daley interviewed Rosser and Lakisha. He returned to the vehicle, photographed it from all sides and began to process it. Trooper Daley determined four separate rounds hit the U-Haul and the transported vehicle. Specifically, one shot through the side mirror, one shot through the driver's side door, one shot through the driver's headrest, and one shot through the passenger compartment. A .380 caliber bullet was recovered from the cargo area, which was taken into evidence for testing.

         {¶9} Trooper Daley learned Appellant had been arrested on unrelated charges and was being held in the Summit County Jail. The trooper interviewed Appellant there on January 17, 2018. Prior to commencing the interview, Trooper Daley informed Appellant he was not under arrest for the U-Haul shooting and was free to leave the interview at any time. Trooper Daley did not advise Appellant of his Miranda rights. Although an audiotape of the interview was played at the suppression hearing, the state did not play the audiotape at trial. Trooper Daley did not testify as to the substance of the interview, but merely stated he met with Appellant on January 17, 2018.

         {¶10} As part of his investigation, Trooper Daley obtained and listened to recordings of phone calls to and from Appellant while he was in the Summit County Jail. Calls between Appellant and Adam McGowan ("McGowan"), his brother, as well as calls between Appellant and Angela Briere, his girlfriend at the time, were played for the jury. During his calls with Briere, Appellant made numerous references to sandwiches, such as the one he had eaten that morning, the fact he was hot because he had eaten too many sandwiches, and also whether Briere had disposed of the "moldy sandwich". Trooper Daley explained the term "sandwich" is slang for firearm. The trooper also learned Briere, at Appellant's request, had given the gun Appellant used during the U-Haul shooting to McGowan. With this information, Trooper Daley obtained a warrant to search McGowan's residence.

         {¶11} On January 29, 2018, law enforcement officers, including Trooper Daley, executed the search warrant at McGowan's apartment in Cuyahoga Falls, Ohio. Officers discovered a silver gray, hinged lid lockbox, containing a black Taurus .380 caliber handgun, a silver Phoenix Arms pistol, .380 caliber ammunition, and .22 caliber long rifle bullets. Trooper Daley personally delivered the Taurus handgun to the Ohio Bureau of Criminal Investigation ("BCI").

         {¶12} Adam McGowan testified Briere had delivered the lockbox containing the guns and ammunition to his apartment sometime in January, 2018. At the time, McGowan was unaware of the contents of the box. McGowan subsequently learned of the contents and informed Appellant he had thrown the black gun into the gorge. McGowan acknowledged he did not actually dispose of the gun, explaining after he learned what Appellant had done, he wanted "nothing to do with this mess." Tr. II at 318.

         {¶13} Angela Briere testified, in January, 2018, she and Appellant were in a relationship, which began in mid-November, 2017. Briere was aware Appellant and his wife, Lakisha, were married, but separated, at the time. On January 13, 2018, Briere and Appellant were hanging out with one of Lakisha's brothers, Antonio Rosser, and his girlfriend, who is also the mother of his children. At the end of the evening, Briere, Appellant, and Rosser drove Rosser's girlfriend to Lakisha's daughter's house. A U-Haul truck with a trailer attached was parked in front of the house. ...


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