from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for
Law Office of Thomas F Hayes, LLC, and Thomas F Hayes, for
1} Andrew McGowan "does not challenge in this
appeal" that he "disposed of Gabby [Hinojosa's]
body," which was recovered from the Big Darby Creek in a
City of Columbus recycling bin with holes drilled into it and
further weighted down by a car battery. See Reply
Brief at 1. After all, there was evidence that the bin and
the battery had come from the automotive garage he operated;
police found plastic curlicues there that reasonably could be
thought consistent with material from the drill holes; and
arguably corresponding plastic particles also were discovered
in a conversion van that he had there. Compare
Appellant's Brief at 6 ("The non-medical forensic
evidence implicates Andy * * * in disposing of Gabby's
body") (bolding omitted). But he contends that the jury
reached too far in concluding that he also killed Ms.
Hinojosa, who was the mother of his child and who according
to testimony had been in his car shortly before she vanished.
The witness who testified to his confession was not credible,
he submits, and he argues that the sum of the evidence did
not establish beyond a reasonable doubt that Ms. Hinojosa
died at his hands or other than accidentally. We affirm his
conviction for aggravated murder, determining that the
jury's verdict was not contrary to the manifest weight of
2} We summarize some of the evidence below. A
capsule synopsis is that the jury heard testimony from which
it reasonably could have concluded that Mr. McGowan, who in
addition to running his car lot/garage "was also a
heroin dealer," Appellant's Brief at 3, was involved
in abducting and abusing his former girlfriend, and in
placing such force on the right side of her neck that she
died before her bruised and scraped body, with her head
recently and weirdly partially shaven, was placed into the
recycling bin, had bleach poured over it, and was dumped into
the Big Darby. The body, once recovered, evidenced
"therapeutic" levels of Fentanyl that the
state's expert said would have rendered her lethargic but
that the defense experts said could have killed her. There
was evidence that on the day Ms. Hinojosa was reported
missing, Mr. McGowan excused his heroin-retained employee
from the garage for substantial periods, that within days Mr.
McGowan took the unprecedented step of ordering that the
garage be scrubbed out with bleach, and that he later sought
to elude police after a warrant had issued for his arrest.
And yes, Mr. McGowan's long-time employee did testify
that Mr. McGowan confessed to killing Ms. Hinojosa.
3} Mr. McGowan, of course, had no burden of proof at
all, and the relevant question for the jury was whether the
state proved his guilt beyond a reasonable doubt with regard
to the charge of aggravated murder. But by way of argument,
he does posit to us two alternative scenarios to bear in mind
during a review of the evidence. Although the evidence of his
"purported confession" is "too dubious to
sustain a homicide conviction," Mr. McGowan argues,
"[t]here is a more plausible explanation for Gabby's
death: that she allowed another man to strangle her as part
of prostituting herself." Appellant's Brief at 19.
On the other hand, he urges, "[t]he evidence does not
prove beyond a reasonable doubt that Gabby was killed by
anyone," and the evidence does not prove "homicide
by strangulation" but may suggest an "accidental
overdose" of Fentanyl. Id. (bolding omitted);
id. at 25.
4} But these alternative hypotheses don't do
much to illustrate Mr. McGowan's contention regarding the
manifest weight of the evidence. We note first that his
concession that "[t]here is legally sufficient evidence
which if believed would prove that [he] disposed of
Gabby's body after she died," id. at 13,
acknowledges evidence that might not be thought entirely
consistent with a theory that Ms. Hinojosa perished in the
clutches of some sadistic third party (or with testimony that
Mr. McGowan had claimed that he last saw Ms. Hinojosa after
dropping her off in the Hilltop area). Nor does the theory of
an unrelated third-party culprit necessarily square with
evidence that Mr. McGowan attempted to evade police (or of
course with the testimony that he confessed to killing Ms.
5} By the same token, the jury reasonably could have
accepted the deputy coroner's testimony that Ms.
Hinojosa's death resulted from "undetermined
homicidal violence" as substantiated by neck and torso
compression and by other injuries that the deputy coroner (in
contrast with defense experts) testified the victim suffered
before her death. It would not have been out of bounds,
either, for the jury to find that evidence that Ms.
Hinojosa's head had been shaven before her death (in a
pattern that left a large tuft at the top of her head and
hair at the sides below a wide circle) was consistent with
contemporaneous violence, and that evidence that the
recycling bin/casket reeked of bleach was also consistent
with other evidence pointing to homicide as alleged rather
than to an accidental drug overdose. The testimony that Mr.
McGowan confessed to having killed Ms. Hinojosa was not the
only evidence, therefore, from which the jury could have
concluded that she died a violent death.
6} None of that is to say that the jury could not
have credited the testimony of J.B., an employee and avowed
heroin client of Mr. McGowan's, when he averred that Mr.
McGowan "told me he fucked up and killed Gabby."
Tr. at 923. Determining credibility is a vital jury function,
and we discern nothing that should have precluded the jury
from making its own evaluation of J.B.'s testimony (or of
the competing views of the medical experts).
7} The jury first heard testimony from K.H., Gabriel
Hinojosa's cousin. Gabriel lived with K.H., who was
seeking to provide her with a stable environment as Gabriel
worked to put her drug problems behind her. Tr. at 140-41.
K.H. said she consistently checked in on Gabriel and
regularly tracked her through an app on Gabriel's cell
phone. Id. at 160. She said that Gabriel was engaged
in a "daily struggle to get away from her past,"
and although Gabriel had changed to "being sober enough
to actually live her life," id. at 145, K.H.
conceded that there were times "I was nervous that she
was back on the streets," id. at 203.
8} K.H. testified that she last saw Gabriel on
Sunday afternoon February 19, 2017, when Gabriel got into Mr.
McGowan's car and drove off with him. Id. at
167-68. Gabriel was "super excited," K.H. said, by
her planned visit with her three-year-old daughter (whom she
could see only as Mr. McGowan allowed). Id. at 163,
166. Then, despite her regular habits of cell phone use,
Gabriel had no further communication with K.H.; she did not
respond to texts, calls, or Facebook posts, which was not
normal, and whereas generally "[s]he would come home
every night," she did not return. Id. at 164,
168, 169. "I see Gabriel getting into his car [with
him]. * * * And that's the last time that I seen
her." Id. at 167.
9} According to a report prepared by an FBI analyst,
"[t]he last outbound voice call made from [Gabriel's
phone] was placed at 4:24 pm [that day], February 19,
2017"; there were no outgoing texts either after that
time, and by 5:00 p.m. that evening, the phone was "in
the possession of a citizen" on Columbus's Warren
Avenue. State's Ex. 587 at 13; Tr. at 1366. KH.'s
tracking of the phone, too, showed its location constant at
Warren in the Hilltop neighborhood. Tr. at 170, 190, 195.
K.H. thought it "weird" that the phone's
movement had stopped, and testified that the location was
"completely out of [Gabriel's] environment."
Id. at 170, 190. Another witness, N.B., later
testified that her "brother found a phone in the
alley" behind the house where they lived on Warren
Avenue, answered it only to tell the caller to "screw
off," and later "mashed it in the back alley,"
id. at 1429-30; police recovered it at a later
point, id. at 1252 (Det. Meister).
10} K.H. had texted Mr. McGowan to inquire where
Gabriel was, and he responded that she was no longer with him
and that he had dropped her off on the Hilltop. Tr. at 182,
194. K.H. attempted, unsuccessfully at that juncture, to
reclaim Gabriel's cell phone from its possessor.
Id. at 195. The next day, she advised Mr. McGowan
that she was going to file a missing person's report and
tell the police "that you were the last person with
her"; he told her to go ahead. Id. at 183, 199.
After not having seen Gabriel for more than 24 hours she did
report Gabriel's disappearance to the police on the
evening of February 20, telling them her information about
Gabriel's phone and that she'd last seen Gabriel
wearing jeans, Nikes, and a white tank top under a
"black zip-up jacket with pink writing on it."
Id. at 171-73, 196-97, 212. She had never reported
Gabriel missing before. Id. at 171. At trial, K.H.
identified those jeans, now discolored by bleach, and the
similarly discolored jacket that before bleaching had been
"completely black" with the Pink inscription
"love pink" on the back as those that Gabriel
"had walked out of my door with on." Id.
11} K.H. also testified that Gabriel had
"recently got her hair done," and that when she had
left the house to get into Mr. McGowan's car, she had a
full head of hair (which she was wearing "down").
Id. at 187-88. By the time Gabriel's body was
recovered, however, wide swaths of that hair had been
"shaved off: K.H. averred that Gabriel had
"[n]ever" been known to do anything like that.
Id. at 189; see also, e.g., State's
Exs. 99, 104, 120, 364, 375 (autopsy photographs showing head
shaved all around crown, leaving a tuft in the middle and
hair at the sides).
12} Police reached out to Mr. McGowan as the only
person listed by K.H. in her missing person's report.
Eventually an interview was conducted in his lawyer's
office on the afternoon of February 23; police viewed him as
cooperative. Tr. at 538, 543, 554, 569 (Officer Grocki
13} On an unseasonably warm February 24, four days
after K.H. had reported Gabriel missing, kayakers discovered
Gabriel's body in "a bright blue recycling trash
can" in the Big Darby Creek. Id. at 234-35. The
receptacle was "slightly sticking out of the
water," with its lid "tied shut." Id.
at 234-35. They "opened it a little bit and * * * saw
the Nike shoes." Id. at 236.
14} Ohio Bureau of Criminal Investigation crime
scene investigator Todd Fortner examined the bin at the creek
and at the coroner's office. Id. at 363-65, 375.
Holes had been drilled into the side of the bin and its lid,
and Agent Fortner testified that a number of wires secured
the lid to the bin: a yellow wire was marked "left
turn," a brown wire was marked "taillight,"
and another wire was marked "right turn."
Id. at 374, 382-83. And, "in the bottom of the
bin, a car battery was located." Id. at 406.
15} "The victim was in the bin head down with
her feet up." Id. at 384. "[H]er shoes
[were] above the waterline with her feet," and she had
"some loose hair * * * in her right hand."
Id. at 384-86. Agent Fortner testified that he
noticed "an odor of bleach-type or some chemical-type of
smell" as he removed the body and other items.
Id. at 393-94. The holes drilled into the bin had
left some plastic protrusions; some holes "had little
corkscrew shapes and some of them actually had spirals of
plastic adhering to them." Tr. at 638 (testimony of BCI
trace evidence examiner Elliot); State's Ex. 279, 281
16} The forensic evidence included testimony from
Dr. Kenneth Gerston, a pathologist from the Franklin County
Coroner's Office who performed the autopsy on
Gabriel's body the morning after it was discovered.
Id. at 1014, 1020, 1022; State's Ex. 574
(autopsy report). He could not pinpoint the date of death
because the body had been "fairly well preserved in cold
water," and bodies immersed in temperatures of less than
39 degrees Fahrenheit "can be preserved for quite a long
time." Tr. at 1800.
17} Dr. Gerston testified that "the scalp was
shaven in a kind of circular pattern. There were no injuries
to the face itself," but there had been "bruising
or bleeding into the hair follicles." Id. at
1026, 1035. He opined that Gabriel's scalp had been
shaved either within a few days before her death
("[b]ecause there is no hair growth"), or up to
only "a few minutes after her death" (because of a
contusion indicating "bleeding into the skin of the
scalp"). Id. at 1035-36. The top of the scalp
had "discoloration which might indicate irritation or
that the hair was pulled to some extent." Id.
18} The body revealed markings that "would have
occurred either shortly before death or just at the time of
death," Dr. Gerston averred. Id. at 1037-38.
Abrasions to the back left apparent fabric patterns of the
sort "you would get if you wrinkled cloth and pressed it
hard against the skin. * * * * The pattern would indicate
that most likely this would be applied by tightening the
cloth or pulling the cloth from the front and the pressure
therefore would be exerted on the back." Id. at
19} There were recent patterned abrasions on the
left forearm, and a dried abrasion on the left thigh, as well
as injuries to the torso and elsewhere. Id. at 1028,
1034. The neck reflected a "dried brown abrasion mostly
on the right side," and also a "weave abrasion * *
* under the chin." Id. at 1027. She would not
have bled from these injuries externally. Id. at
1044. The injury to the neck reflected that "most of the
pressure was on the right side," Dr. Gerston said, and
the hemorrhage extended down to the sternum. Id. at
1042, 1049. There was a "large amount" of blood
within the tissue of the larynx. Id. at 1050, 1051.
20} The injury to Gabriel's neck "would
have occurred before death," Dr. Gerston opined.
Id. at 1048. He elaborated: "[I]n order for
blood to accumulate in this fashion within the tissue, there
has to be blood pressure and therefore there has to be a
pulse for a heartbeat." Id. at 1052. And it was
not an accident: "It's very unusual, virtually
impossible for someone to have pressure around their neck and
around their torso given the weave patterns, tightening,
which would be due to tightening of cloth or clothing,"
where there was no history of having become entangled in a
machine. Id. at 1059. "I believe the only way *
* * these markings, these abrasions and the pressure on the
torso, the pressure on the neck could have occurred would be
at the hands of another person." Id. at 1061.
21} A toxicology report reflected a small amount of
a metabolite of cocaine, but "[c]ocaine itself was not
present." Id. at 1054-55. Fentanyl in a
"not lethal or toxic" amount of 2.6 nanograms was
also found, along with indications of marijuana use from the
past 30 days, and Buprenorphine, "a drug which is used
to help people come off addiction" and that is an opioid
antagonist that would have "lessen[ed] the
[e]ffect" of Fentanyl. Id. at 1055-56. "I
believe that the Fentanyl alone would not have caused her
death," Dr. Gerston continued, "but perhaps the
neck compression in combination with that did."
Id. at 1056-57.
22} To a reasonable degree of medical certainty, Dr.
Gerston attributed the death to "undetermined homicidal
violence[, ] referring to the compression of the neck, the
compression of the torso, which would interfere with
breathing and the other significant conditions."
Id. at 1057. "[T]here was a great deal of
pressure exerted on the right side of her neck," which
"would have been enough to have caused a lack of blood
flow to the brain which is like strangulation * * * * It
would cut off the supply of blood to the brain that is by
compressing the carotid artery and it would prevent blood
from returning to the heart from the brain because the
jugular vein is compressed." Id. at 1061, 1064.
23} The levels of drugs in her system were not
enough to cause Gabriel's death, Dr. Gerston reiterated;
even had they been significantly higher, he would have ruled
the death a homicide. Id. at 1088. "[T]he
pressure on the neck would occlude vessels to the brain and
would cause death by brain anoxia and it would eventually
stop her heart beat and her breathing, but * * * the reason
why the Fentanyl is contributory is because she would be
lethargic, she would be unable to resist such a thing and
would explain why there are no defense wounds."
Id. at 1097. Gabriel's level of Fentanyl, at
under three nanograms per milliliter, he said, "would be
considered a therapeutic dose"; in excess of seven is in
the "toxic" range, while "ten and above would
be considered a lethal dose." Id. at 1796-97.
24} Dr. Gerston testified, contrary to defense
experts, that Gabriel had incurred "[m]ost" of the
abrasions on her body before she died. Id. at 1788.
"A postmortem abrasion" of a victim put in water
"would be rather [diffuse]. These abrasions were rather
well defined except on the neck." Id. Moreover,
"when the tissue was opened and especially on the neck,
there was hemorrhage into the tissues and that can only occur
when the blood pressure is present which means the heart was
beating which means the victim was alive at the time that
those lesions occurred." Id. at 1788-89; 1791
("this type of injury * * * could only have occurred
while the victim was living, not after death"), 1792-93.
And the absence of petechial hemorrhages that frequently but
not always accompany strangulation does not undermine this
view, he said, "because if the pressure [on the neck] is
too great, you won't have any circulation [of blood] to
the area." Id. at 1794.
25} Cross-examination of Dr. Gerston elicited that
he no longer conducts autopsies, and that he was demoted
after having been the subject of some sort of anonymous
complaints and having declined to undergo further testing
following one neurological evaluation. Id. at
26} The jury also heard from J.B., who testified
that he had known Mr. McGowan for roughly five years.
Id. at 792. They first met when J.B. purchased
heroin from Mr. McGowan, a transaction that was repeated some
75 or 80 times before J.B. went to work for him. Id.
at 800-02. Mr. McGowan employed J.B. to work on cars and
around his garage, J.B. said, paying him "[e]very
day" with drugs. Id. at 803, 806. J.B. met Mr.
McGowan's "inseparable" associate M.C. under
the same circumstances. Id. at 811, 812. There came
a time, J.B. testified, when he began living in the ...