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State v. Remillard

Court of Appeals of Ohio, Fifth District, Knox

August 30, 2019

STATE OF OHIO Plaintiff-Appellee
v.
KEVIN REMILLARD Defendant-Appellant

          Appeal from the Knox County Court of Common Pleas, Case No. 17 CR 06-0122

          For Plaintiff-Appellee CHARLES T. MCCONVILLE Knox County Prosecutor

          For Defendant-Appellant JOHN P. PARKER

          JUDGES: Hon. William B. Hoffman, P.J Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} Kevin Remillard appeals his conviction of one count of Murder in violation of R.C. 2903.02(A), an unclassified felony with a firearm specification in violation of R.C. 2941.145 and one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree.

         STATEMENT OF FACTS AND THE CASE

         {¶2} On June 10, 2017, a revolver in the possession of Appellant discharged twice and one bullet struck Nick Remillard and caused his death. The parties presented the case to the jury arguing that the only disputed issue was whether Appellant had acted with the purpose to kill Nick Remillard. Appellant contended that the firing of the weapon was reckless or accidental and that he had no purpose to kill Nick. Appellee presented a note drafted by Appellant after the shooting contending that the admissions contained within it, combined with the concealment of the body in the pool and disposal of the gun, supported a conclusion that Appellant acted purposely. The jury found that Appellant acted purposely and convicted Appellant of murder with a firearm specification and tampering with evidence.

         {¶3} In April 2015, Appellant was evicted from his home in Columbus and called his aunt, Melanie Remillard for help. Ms. Remillard's mother had been admitted to an extended care facility, so Melanie Remillard invited Appellant to live in her vacant home. Soon Nick Remillard, the victim and Melanie Remillard's son, moved into the home and started a dog sitting business. Nick occupied the ground floor and Appellant primarily stayed in the upper levels of the home. Nick was an avid video game player and participated in multi-player games over the internet and according to his Mother his games could become quite loud and chaotic.

         {¶4} Appellant befriended a neighbor, Roy Daubenspeck, and spent some time at his home. Daubenspeck hired Appellant on some construction projects and asked for his help to resolve computer issues. While they were not close friends, they did spend time together and discussed mutual interests, and Daubenspeck often provided Appellant with transportation as Appellant had no vehicle of his own.

         {¶5} Daubenspeck owned a Taurus .357 caliber revolver and Appellant and he often handled the weapon when Appellant visited. Daubenspeck and Appellant discussed a lose screw in the weapon, and Appellant suggested a possible repair. The revolver was operable, but had misfired on one occasion when Daubenspeck had attempted to fire it rapidly. Appellant had never fired the weapon prior to June 10, 2017, but he did know where the weapon and ammunition was stored in Daubenspeck's home.

         {¶6} On June 11, 2017, Roy Daubenspeck discovered a stack of items in his driveway that he identified as the property of Appellant. With it he discovered a note from Appellant that stated: "Nothing in world makes sense. Lack of sleep, constant pain, who knows, but I snapped. These things are yours, Kevin." The text of the note worried Daubenspeck, especially after discovering that his revolver and ammunition were missing. Daubenspeck knocked on Appellant's door, but there was no answer. He called Melanie Remillard but was unable to reach her. He then called 911 and the Knox County Sheriffs Office responded.

         {¶7} Deputy Scott Baker responded to the call and Daubenspeck relayed that he had found the note and Appellant's property in the driveway. After reviewing the note, Deputy Baker became concerned that Appellant may be suicidal, so he knocked on Appellant's door. No one responded, but the deputy noticed several dogs in the house. He knew that the home was owned by Melanie Remillard, so he contacted her for assistance with the dogs so he could search for Appellant inside the home.

         {¶8} Melanie Remillard arrived and confined the dogs in the back yard. Deputy Baker and Deputy Wolfe entered the home with caution, having been advised that Appellant may be carrying Daubenspeck's revolver. They entered the home with the goal of locating Appellant and insuring that he and anyone else in the home was safe. They found the first floor in disarray but did not find any person or body. Deputy Wolfe found a note on the second floor on a table in plain view. He read the first few lines, concluded it was a suicide note and picked up the note with the hope that its contents would lead to finding Appellant.

         {¶9} Deputy Baker noticed that the writing in the note was similar to the writing in the note discovered by Daubenspeck. After reading the complete note his assessment of the situation changed as the author of the note mentioned several times that he had shot Nick Remillard. Deputy Baker concluded that he may now be investigating a potential murder and suicide and reported his findings to Detective Light.

         {¶10} Detective David Light responded to Detective Baker's report regarding the note and some blood stains in the home. Because the note suggested that a homicide and perhaps a suicide had occurred, the officers conducted a limited search for injured or fatally wounded persons. While no victims were found, the officers did discover blood stains and bloody footprints in the home and, at that time, Detective Light sought and received a warrant to expand his search to the home and surrounding area.

         {¶11} During a later search, the body of Nick Remillard was discovered in the murky water of the swimming pool behind the home. The officers found a pool pump and cord wrapped around the body, and surmised that this was done to keep the body submerged below the surface. They also discovered a blanket in the pool and concluded that the relatively clean condition of the blanket suggested that it had been in the dirty pool water for only a short period of time. The knot in the end of the blanket, and what appeared to be blood and dog hair on the blanket lead the officers to conclude that it had been used to drag Nick's body from the home to the pool.

         {¶12} During a search of the home, the deputies discovered a bullet hole in the wall and, at the end of the bullet's trajectory, bullet fragments.

         {¶13} On June 13, 2017, Detective Minot conducted a search for Appellant. He recruited cadaver dogs because he was still concerned that Appellant had committed suicide and that he was looking for a body. The search was unsuccessful because Appellant had not committed suicide, but had been wandering the streets pondering his fate. He had kept the revolver, disassembled it and disposed of it in three different locations. He then contacted an attorney and surrendered himself to the Mt. Vernon Police Department where he was arrested, then charged with murder and tampering with evidence.

         {¶14} The state presented testimony from several experts to connect the evidence found at the scene to Appellant and the victim. Jeff Lee, Licking County Coroner, completed an autopsy and concluded that that the cause of death was a gunshot wound to the head. The death occurred 24 to 36 hours prior to the autopsy and the weapon was two to three feet from the victim when the shot was fired. Heather Williams, an expert from the Ohio Bureau of Criminal Investigation, examined the bullet fragments recovered from the scene and the bullet removed from Nick and concluded that they were .38 caliber and that they could be fired from a Taurus revolver, the same type of weapon owned by Roy Daubenspeck and discharged while in Appellant's possession. Samuel Troyer, DNA analyst, concluded that the blood stains in the home were comprised of the blood of Nick Remillard. Rebecca Barrett of the Bureau of Criminal Investigation compared the handwriting on the note found by Daubenspeck (Exhibit 5) and the note found by Detective Baker (Exhibit 7) to the handwriting samples submitted by Appellant and concluded that both were written by Appellant.

         {¶15} Appellant testified to the events leading to the shooting. He acknowledged that he learned that his neighbor, Daubenspeck, had a revolver and that he had discussed the weapon with Daubenspeck and handled it when he visited Daubenspeck. He described chronic physical ailments, his depression, persistent suicidal thoughts and described his mood on the weekend of the shooting as particularly bleak. The drive to commit suicide was very strong that day, so he went into Daubenspeck's home and took the revolver and the ammunition, with the intent of committing suicide. He did not follow through, but walked to the local market, purchased beer and returned home.

         {¶16} He drank some of the beer and was talking with Nick while Nick was playing video games. He told Nick that he had almost committed suicide earlier that day and, in response to Nick's question, stated he would have used "his" revolver. He brought Roy Daubenspeck's gun down from his room to show Nick and they purportedly handled the weapon and discussed how it looked similar to a weapon used by a fictional television character. Appellant decided to return the gun to Daubenspeck's house and as he left, he inexplicably decided to "dry fire" the weapon into the wall.[1] The gun discharged into the wall and Appellant stated he was shocked by the report. He fumbled with the weapon and though he does not deny that it discharged a second time, his testimony does not provide a clear explanation of the second shot. During his testimony he did not expressly state that he was aware that the gun fired a second time:

I immediately jumped, because I wasn't expecting it to go off. I went and just started fumbling with it to get the cylinder out. When it sticks we usually put our hand across the release and signal(sic) the hammer back which kind of advances it inside. The only thing I can assume is that the hammer slapped back and hit a shell, but it it would be around this (indicating) distance, maybe a little further this (indicating) way. But I was trying to get the gun after it fired back to my neighbor and put it away and pretend that I never even took it from him. I immediately went out to the porch. I had no idea Nick got hit.

         {¶17} Appellant described how he left the home, unloaded the weapon and returned the bullets to the jar on the shelf in Daubenspeck's home. He kept the empty shells and the weapon and, until he returned to the house, he claims that he did not know that Nick had been shot. When he returned home, he found Nick bleeding profusely and responded to Nick's request for water, but claims to recall little more after Nick fell silent. He does recall living in the streets and the details of his disposal of the gun. He separated the bullets, the cylinder and the body of the pistol and put the pistol in a potato chip bag and tossed it into the Kokosing River. He put the cylinder in a black sock and "whipped it into the first pond at Foundation Park" and threw the bullets in the river. He had no recollection of writing the eight page note, Exhibit 7, which provided a much different version of the story.

         {¶18} Exhibit 7 is the note allegedly drafted by Appellant after the shooting. The entire note was read to the jury without objection. Some significant statements include:

As for yesterday, I woke in such pain and hate that all that my head was thinking was to kill everybody that was harmed -- that has harmed me my whole life.
So I was just going to ride my bike somewhere and shoot myself, but I have no idea how Nick got in the way. I know I fired a round into the wall to maybe let him know to leave me alone or something, but all I remember is him keep doing or saying whatever he was saying or doing, and I shoot him. At that point my mind just wanted to kill my family in mass.
***
Other than me shooting Nick, my mind is blank and tormented.
***
My mind is in so many places with no real me inside that I just couldn't keep going anymore. I'm a fucked up mess, and I killed Nick, fuck.
I was just going to ride my bike somewhere and shoot myself. I was relieved with my own demise and end, the end of my constant pain and misery but something took me elsewhere, something inside that I just can't keep away.
He never deserved this. There is anything he could have done, I was just going to shoot myself. I kept going downstairs hoping it didn't really happen, that it was just a nightmare, but it wasn't. I killed Nick.
Though I really did try, I was on my way to kill myself when for whatever reason they wouldn't let me without shooting Nick. ***
How could I just shoot Nick?
I just knew when I woke up that I wouldn't make it, but Nick was not part of the plan. So much shouldn't have happened, just so much somehow went way wrong with this. I just was going to disappear, no one knowing what become of me, but instead I hurt Nick. He wasn't supposed to be involved in this. What the fuck happened? I am so sorry I shoot him, so fucking not what I was going to do. It was just going to be me that died, not him.
It really should have not happened with Nick. I was just going to kill myself.

         {¶19} Appellant conceded that the handwriting in Exhibit 7 appeared to be his, but he offered no reconciliation between his testimony and the version of the facts in his note.

         {¶20} Appellant's trial counsel submitted jury instructions and after review by the trial court and discussion regarding the terms and timing of the instructions, they were approved with the exception of Appellant's request for an instruction on the issue of "accident." The trial court declined to include it, stating that it found no evidence of an accident in the record. Appellant's trial counsel stated: "Just could the record reflect that we did ask for an instruction on accident and the Court declined to give that instruction?" The trial court responded "so noted" and no further discussion regarding that instruction occurred.

         {¶21} The jury returned a verdict of guilty of murder and tampering with evidence and Appellant was sentenced to a prison term of fifteen years to life on count one, three years on the firearm specification as to Count one, to be served consecutive and prior to the indefinite term on count one, and ...


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