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State v. Thomas

Court of Appeals of Ohio, Eleventh District, Portage

July 8, 2019

STATE OF OHIO, Plaintiff-Appellee,
JAVON M. THOMAS, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00022.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

          Neil P. Agarwal, (For Defendant-Appellant).


          MATT LYNCH, J.

         {¶1} Defendant-appellant, Javon M. Thomas, appeals his convictions and sentence for Murder, Felonious Assault, and Negligent Homicide, following a jury trial in the Portage County Court of Common Pleas. The issues to be determined by this court are whether counsel is ineffective and reversible error is committed when a castle doctrine instruction is not requested or given in a case where there is evidence to support an affirmative defense of self-defense and whether the trial court errs in failing to admit text messages that have been extracted from a phone but the owner of the phone is not identified. For the following reasons, we reverse the judgment of the court below and remand for further proceedings consistent with this opinion.

         {¶2} On January 12, 2017, the Portage County Grand Jury issued an Indictment, charging Thomas with Murder (Count One), an unclassified felony, in violation of R.C. 2903.02(A), and Murder (Count Two), an unclassified felony, in violation of R.C. 2903.02(B). A Supplemental Indictment was filed on March 31, 2017, charging Thomas with two counts of Aggravated Murder (Counts Three and Six), unclassified felonies, in violation of R.C. 2903.01(A); Murder (Count Four), an unclassified felony, in violation of R.C. 2903.02(A); Murder (Count Five), an unclassified felony, in violation of R.C. 2903.02(B); and two counts of Felonious Assault (Counts Seven and Eight), felonies of the second degree, in violation of R.C. 2903.11(A)(2) and (D). All eight counts had firearm specifications pursuant to R.C. 2941.145.

         {¶3} A trial was held on October 4 through 12, 2017. The following pertinent testimony was presented:

         {¶4} On the night of January 6, 2017, and into the early morning hours of January 7, Sadie Ochsenbine held a small party at her apartment with friends and coworkers. Present at the party were Thomas, whom Ochsenbine described as having an "off and on" relationship with her, his friend Marlon Daniels, Destany Dixon, and Ochsenbine's coworkers, Austin Tiller and Rachel Gundlach. Ochsenbine testified that Thomas "periodically" spent nights at her residence, sometimes staying a few days or a week there. During the party, they played a drinking game and a virtual reality game. At one point, Dixon and Thomas got into a verbal argument over a joke Thomas made about Dixon playing the virtual reality game rather than drinking. Ochsenbine testified that Tiller intervened to calm the situation, but Dixon stopped socializing, made a phone call, and left soon thereafter.

         {¶5} According to Ochsenbine, about an hour later, Dixon, who lived in an upstairs apartment, called and said she would return. Dixon entered the apartment with her boyfriend, Brian Brack. Ochsenbine stated the others in the room had never met Brack and did not know him. She described Dixon and Brack as having an "attitude," smirking upon entering, and immediately proceeding to sit on the couch. Brack made a comment about everyone being quiet and Ochsenbine responded there was no reason for him to be there. He then stood up, "drew his weapon [from his jacket pocket] and said that no one was going to disrespect his girlfriend." He pointed his weapon at Thomas, who had his weapon pointed at Brack. Ochsenbine then heard shots being fired and saw Thomas "backing up" toward the hallway in the apartment. People began running, she saw Tiller on the floor, and called 911.

         {¶6} Marlon Daniels also described the argument between Thomas and Dixon arising from a joke. Dixon left the party and returned with Brack around 4 or 4:15 a.m. Daniels testified that he believed immediately when Brack entered he had a firearm in his hands because of the way he had his hands in his pockets. Daniels testified that Dixon had body language that he interpreted as meaning "what are you going to do now" directed toward Thomas.

         {¶7} After the two sat down, Daniels heard Brack make several statements about it being quiet in the apartment and have a verbal exchange with Ochsenbine. Daniels heard the sound of a round being placed in the chamber of a gun, coming from Thomas' direction and heard Thomas say, "It's not going down like that." He looked up and saw Thomas' hands were empty. Brack then pulled out a gun, reached around Dixon, pointed it at Thomas, and Daniels jumped behind the couch. He heard multiple shots but did not know who fired them. After the shooting, Thomas said something like, "I had no choice" or "look what he made me do." Daniels believed Thomas saved his life that day.

         {¶8} Rachel Gundlach testified that following the joke, Dixon had "threatened to call people," or "have her people come and talk to" Thomas, spoke on the phone, and left around 3 a.m. She returned with Brack around 4 a.m. The two sat down on the couch and Ochsenbine asked why they were there. Gundlach looked over and saw Thomas had a gun in his lap and looked upset. Thomas stood up with his gun "and then almost simultaneously," Brack stood up with his gun and they started shooting. She testified that she believed Thomas shot first, although indicating it happened very fast. Gundlach stated that she had not felt threatened when Brack entered and he did not do anything aggressive.

         {¶9} On cross-examination, Gundlach's taped interview with police after the incident was played in which she had stated that Brack stood up first and pointed his gun at Thomas, which was when the shooting started. Gundlach testified that she believed Thomas had stood up first but she could not remember exactly.

         {¶10} According to the testimony of Ravenna Police Department Sergeant Dustin Svab and Patrolman Andrew Wert, they arrived at the apartment complex following a 911 call and encountered Thomas driving out of the complex. He was stopped, detained, and Patrolman Wert recovered an unloaded Magnum Research Micro .380 firearm from his left front pocket. Sergeant Svab responded to the scene of the shooting and saw Brack lying in the shared hallway outside of Ochsenbine's apartment, deceased. Tiller was lying in the living room of the apartment and had also passed away. Dixon had gone upstairs to her mother's apartment and had gunshot wounds to her legs.

         {¶11} Daniel Winterich, a special agent with the Ohio Bureau of Criminal Identification and Investigation (BCI), examined the crime scene and located bullet holes on a couch cushion and nearby fast food container. Two bullets were recovered from that section of the couch, where witness testimony established Dixon had been sitting, and one was recovered from the television across the room. A Kel-Tec .9mm gun, which testimony established was used by Brack, was located on the floor near the front door of the apartment. Two casings from the Kel-Tech were located near the couch where Brack was sitting. Five casings from Thomas' Magnum Research Micro .380 were located primarily in the corner of the room near where Thomas had been sitting.

         {¶12} Dr. Todd Barr, Deputy Medical Examiner for the Summit County Medical Examiner's Office, performed autopsies in this matter. Brack suffered a gunshot wound to his foot and chest, with the chest wound being the cause of death. Barr testified the angle of the bullet projected downward, which could have been consistent with him either sitting or standing at the time he was shot. Tiller suffered four gunshot wounds, one in his thigh and three that entered through his back. Dr. Dean DePerro, the Portage County Coroner, ruled that the manner of death for both victims was homicide.

         {¶13} Dr. Arnold Feltoon treated Dixon at the University Hospitals Portage Medical Center, testifying that she suffered gunshot wounds to both of her thighs. A bullet had passed through her right leg and a bullet remained in her left leg because it would cause no long-term damage.

         {¶14} Johnathan Gardner, who works in the firearms section of the BCI, testified that Brack's firearm, a .9mm Kel-Tech, was the source of the bullet fragment in Tiller's hip and the bullet in the television. He testified that the bullets recovered in Brack's body and two located on the couch were fired from Thomas' firearm, the Magnum Research .380.

         {¶15} Samuel Troyer, a BCI forensic DNA analyst, testified that one of the bullets recovered from the couch contained the DNA ...

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