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State v. McGowan

Court of Appeals of Ohio, Tenth District

December 24, 2019

State of Ohio, Plaintiff-Appellee,
v.
Andrew M. McGowan, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 17CR-1919

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          The Law Office of Thomas F Hayes, LLC, and Thomas F Hayes, for appellant.

         Argued:

          Thomas F Hayes.

          DECISION

          NELSON, J.

         {¶ 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 the evidence.

         {¶ 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. Hinojosa).

         {¶ 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. at 175-77.

         {¶ 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 testimony).

         {¶ 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 (photographs).

         {¶ 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. at 1034.

         {¶ 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 1036-37.

         {¶ 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 1111-14.

         {¶ 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 ...


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