State Of Ohio v. Lewers, Case No. 2009-CA-00289

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin, P.J.
Citation2010 Ohio 5336
PartiesSTATE OF OHIO Plaintiff-Appellee v. THOMAS LEWERS Defendant-Appellant
Docket NumberCase No. 2009-CA-00289
Decision Date01 November 2010

2010 Ohio 5336

STATE OF OHIO Plaintiff-Appellee
THOMAS LEWERS Defendant-Appellant

Case No. 2009-CA-00289


DATED: November 1, 2010


Hon. W. Scott Gwin, P.J.

Hon. Sheila G. Farmer, J.

Hon. John W. Wise, J.


CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2009-CR-0001

JUDGMENT: Affirmed



For Defendant-Appellant ANTHONY T. KAPLANIS

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Gwin, P.J.

{¶1} Defendant-Appellant, Thomas Lewers, appeals his convictions on one count of aggravated murder, with a firearm specification, one count of murder, with a firearm specification and one count of aggravated burglary in connection with the death of Jeff Cole.


{¶2} On February 20, 2009, appellant was indicted on two counts of Aggravated Murder, both with firearm and death penalty specifications, as well as one count of Aggravated Burglary. The charges stem from an incident that occurred on December 23, 2008. Testimony concerning the events that led up to that incident was presented during appellant's jury trial that took place September 21, 2009 through September 25, 2009 as well as September 28, 2009, and September 29, 2009.

{¶3} Appellant married his wife Shawna in 1994. Appellant and Shawna have two children ages sixteen and thirteen. Beginning in 2006, the marriage became rocky due to appellant's lack of full time employment. In 2007, in an attempt to find something they could both enjoy doing together and perhaps reignite their relationship, the two used Shawna's father's motorcycle and began riding with a group of people who meet for group rides at the Lighthouse Tavern. Eventually they bought their own bike, and rode with the group through summer and fall of 2008. It was through these rides that the couple met the decedent Jeff Cole.

{¶4} The three were friends for a while. Cole permitted appellant to use his hot tub for photo shoots for his struggling photography business and repaired appellant's bike. During summer of 2008, however, the relationship between Cole and Shawna

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became closer. The two began calling and texting one another frequently. Apparently suspecting the shift in the relationship, appellant put a recorder in Shawna's car and captured Shawna's end of two phone calls to Cole. Appellant confronted Shawna and she informed Tom she was not going to stop talking to Cole.

{¶5} By September 2008, the relationship between Cole and Shawna had become intimate. Shawna's job required travel, and that fall, Cole met her once in Florida and once in Mansfield, Ohio. While the two were in a hotel in Mansfield, Shawna heard her car alarm. She looked outside, saw no one, turned the alarm off and re-armed it. Appellant then called her and told her he was outside. Shawna told him to leave.

{¶6} In November 2008, Shawna again raised the issue of appellant's joblessness, telling him to either find a job, or their relationship was over. Appellant agreed to an "open marriage" if this meant that it would avoid a divorce and a break-up of the family.

{¶7} The same month, Shawna went with Cole and his family to Mountaineer Park. She also discussed her marriage with Cole, indicating that she was going to try to make it through the holidays for the sake of her children, but then was planning on leaving appellant.

{¶8} Both appellant and Shawna held conceal carry permits. Appellant always carried his weapon, unless he is in an establishment that prohibits concealed weapons.

{¶9} On the evening of December 23, 2008, Shawna had dinner with appellant and her children and then went to Aultman Hospital to visit a friend. Before leaving the

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house that night, she told appellant she was going to visit Cole after she finished at the hospital.

{¶10} Around 10:30 p.m., Shawna left the hospital and drove to Cole's home. It was cold and rainy, and the rain was beginning to freeze. Once she got to Cole's the two watched a movie. At some point Shawna turned off the ringer of her cell phone. Shawna noticed she had missed some calls from appellant. It was not unusual for appellant to pick Shawna up during bad weather upon her request, however, she sent him a text letting him know she was at Cole's and she was fine. A short time later, she saw appellant pull into the driveway. She put on her shoes and went outside to meet him.

{¶11} The two met at the end of the walkway outside the front door. Shawna asked appellant why he was there and appellant said because the roads were icy. He slid his foot back and forth on the icy walkway and told her the roads were in the same condition. Shawna told him she was fine, and to go home-she would meet him there. Instead of complying with her wishes, appellant declared "this is bullshit," pushed by Shawna and headed toward the front door of the home. Shawna grabbed appellant's arm in an attempt to stop him, but he pulled away hard enough to rip one of Shawna's fingernails off.

{¶12} Shawna's memory becomes a bit "fuzzy" at this point. She remembers hearing voices while she was still outside the house, however, the next thing she remembers is standing in the living room and Mr. Cole was face down on the floor. Shawna testified at trial that she saw Jeff face down on the floor and appellant standing over him, pointing a gun at Cole's body. Appellant fired twice and Shawna ran for her

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phone. As she did, appellant pointed the gun to his own head and said, "I'm next." In neither of her statements to the police did Shawna recall hearing any shots being fired. Nor did she remember whether she mentioned this fact to the Grand Jury.

{¶13} Shawna called 911, but because she was calling from a cell phone, she was passed through two call stations before finally being connected to the Perry Township 911 dispatcher. Shawna was hysterical and it was difficult for dispatchers to get information from her. While she was on the phone, appellant continued to threaten to shoot himself. Eventually Shawna convinced him to give her the gun. She unloaded the weapon and put the clip in her pocket. Appellant told her he did not need the gun to die and he was not going to prison. Appellant produced a film canister containing white powder and swallowed it with water. He told Shawna it would not take long, but she still had some time to talk to him.

{¶14} Perry Township police officers Ben Barrett and George Dietrick were first on the scene. As they approached, Shawna came out of the house hysterical and screaming "he's dead, he's dead." She handed Officer Dietrick the magazine for the gun and said her husband shot Cole. The officers placed Shawna in a cruiser before they attempted to make contact with appellant.

{¶15} As the officers approached the home again, appellant came out of the house with one hand up and the other appearing to be holding a gun pointed at his head. The officers ordered appellant to drop the weapon. Appellant stood there a moment, then went back into the house. The officers took cover. Appellant reemerged from the house, again appearing to have a weapon pointed at his head. He was again ordered to drop the weapon. Appellant told the officers it was his phone. Officer Barrett

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ordered him to drop the phone and get on his knees. Appellant calmly complied and was taken into custody and placed in a cruiser without incident. Officer Barrett asked if there was anyone else in the house and appellant denied there was anyone else inside the home. Officer Barrett asked, "Well, what about the guy you just shot?" Appellant replied, "Well, yeah, he's in there."

{¶16} When Officer Barrett entered the home, he saw Jeff Cole in the living room lying face down on the floor. Spent shell casings and pieces of spent slugs were scattered around Cole's body. The gun was on the kitchen table. Once the officers were certain no one else was in the home, they let the paramedics in and Cole was pronounced dead at the scene. Dispatch had made the officers aware that appellant allegedly ingested some type of poison. Officer Barrett located the film canister, which contained powder residue. He gave the canister to the paramedics who transported appellant to the hospital.

{¶17} Perry police detective Matthew Barker arrived at the scene shortly after midnight. He summoned Larry Mackey, a criminalist at the Canton-Stark County Crime lab as well as Perry police department's evidence officer, Sergeant Pomesky to process the crime scene. When Mackey arrived, Cole was still in the spot where he had fallen. Nothing around him had been disturbed. Mackey photographed the scene in the living room, took measurements, and then collected five.45 caliber cartridge cases, two deformed bullets and a piece of a bullet jacket. In the kitchen, Mackey collected the handgun, a.45 caliber semi-automatic Taurus. Mackey also collected the magazine for the Taurus that Shawna had given to Officer Bennett. The magazine contained two live rounds. Mackey transported all the items he collected to the crime lab.

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{¶18} Officer Barker and another officer followed appellant as he was transported via...

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1 cases
  • State v. Lewers, 2010-2186
    • United States
    • United States State Supreme Court of Ohio
    • March 2, 2011
    ...2010 Ohio 5336State v. Lewers.2010-2186Supreme Court of OhioDate: March 2, 2011APPEALS NOT ACCEPTED FOR REVIEW Stark App. No. 2009-CA-00289, 2010-Ohio-5336. Pfeifer, J.,...

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