State of Ohio v. HOUGH, 91691
| Decision Date | 17 June 2010 |
| Docket Number | No. 91691,91691 |
| Citation | 2010 Ohio 2770 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEEv.TERRANCE M. HOUGH, JR. DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
JOURNALIZED:
ATTORNEY FOR APPELLANT
David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: John R. Kosko Katherine Mullin Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} Appellant, Terrance Hough, appeals his convictions for aggravated murder and attempted murder claiming the state did not show that he acted with prior calculation and design, that the state introduced improper "other acts" and victim-impact evidence, and that his counsel was ineffective. After a thorough review of the record and based on the following case law, we affirm appellant's convictions.
{¶ 2} On July 4, 2007, a group of friends were watching the city of Cleveland's fireworks display. Following the display, Jacob Feichtner, Katherine Risby, Bruce Anderson, Donald Walsh, Katherine Nicholas, Mary Ellen Skora, and Valorie Skora went to the home of Jacob Feichtner's father on Sky Lane Drive in Cleveland. They arrived at approximately 11:00 p.m., and Jacob and Donald began to light off a few fireworks of their own. The rest of the group watched from the front lawn and driveway. Neighbors in at least two houses across the street were outside to watch the fireworks display as well. Sometime before midnight, after the display had wound down, Valorie went inside the Feichtners' home, the neighbors went inside their homes, and Mary Ellen left to go home.
{¶ 3} Appellant lived next door to the Feichtners. Just after midnight, he left his home with a.40 caliber Beretta semiautomatic handgun loaded with nine hollow-point rounds of ammunition. He crossed his yard and
approached Jacob Feichtner, who was standing in the Feichtners' driveway. Appellant stated, "You fucking kids won't be doing this shit no more," or "I bet you guys won't be doing this anymore." Jacob responded, Upon hearing Jacob's statement, appellant raised his gun and shot Jacob once in the chest. Jacob fell backwards and shouted, "Man you just fucking shot me." Appellant responded by shooting Jacob in the chest twice more, killing him.
{¶ 4} Katherine Risby was seated next to where Jacob was standing. Mistaking the gunshots for firecrackers, she tucked her head down by her legs and asked if Jacob was setting off firecrackers behind her back. Appellant shot her twice in the back, killing her. Bruce Anderson, who was seated next to Ms. Risby, tried to roll out of the way, but appellant shot him twice in the back, killing him.
{¶ 5} With every shot, appellant shouted "yeah." Within moments, three people had been shot and killed in the Feichtners' driveway. Appellant then turned and began walking back toward his home.
{¶ 6} Katherine Nicholas, who was on the Feichtners' front lawn, began screaming. Appellant turned and took aim at Ms. Nicholas. Her fiance, Donald Walsh, ran to her and pushed her out of the way. Walsh was hit in his left arm by appellant's eighth shot, shattering the bones in his arm.
Appellant fired his last round at the pair and hit Ms. Nicholas in her finger. Appellant then shrugged his shoulders and walked back to his home, leaving behind the five people who had been in the Feichtners' yard that night three dead or dying in the driveway and two injured and struggling to get inside the Feichtners' house.
{¶ 7} Down the street on Sky Lane Drive, off-duty Cleveland police detective Joseph Bovenzi heard what he knew to be gunshots. He retrieved a gun from inside his home and headed toward the area where he thought the shots had originated. Det. Bovenzi arrived in the front yard of the Feichtners' home and was directed to appellant's house next door in his search for the gunman. He found appellant seated at the kitchen table. Det. Bovenzi asked appellant what had happened and appellant responded, Appellant was arrested.
{¶ 8} A Cuyahoga County grand jury returned a capital indictment against appellant charging him with three counts of aggravated murder with prior calculation and design in violation of R.C. 2903.01(A), with mass murder and firearm specifications; and two counts of attempted murder in violation of R.C. 2903.02 and R.C. 2923.02.
{¶ 9} Trial began on April 15, 2008 and concluded on May 15, 2008 with verdicts of guilty on all charges. The mitigation phase of the trial began
on May 20, 2008. At its conclusion, the jury recommended life without parole. The judge sentenced appellant to a life sentence for each count of aggravated murder, ten years for each count of attempted murder, and three years for the firearm specifications, all to be served consecutively.
{¶ 10} Appellant appeals from his convictions assigning four errors for our review.
{¶ 11} Appellant first argues that "[t]he evidence cannot sustain the element of prior calculation and design for the three convictions of aggravated murder, R.C. 2903.01(A)." He suggests that the evidence adduced at trial showed that he snapped and shot five people without any prior consideration or planning. We disagree.
{¶ 12} In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" Id. at paragraph two of the syllabus.
{¶ 13} Aggravated murder as set forth in R.C. 2903.01(A) provides that "[n]o person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy." This statute was amended, according to the 1973 Technical Committee Comment to Am.Sub.H.B. No. 511, because . See State v. Keenan (1988), 81 Ohio St.3d 133, 157, 689 N.E.2d 929.
{¶ 14} State v. Jenkins (1976), 48 Ohio App.2d 99, 355 N.E.2d 825, lists some factors used to determine whether a trial court can properly instruct the jury on murder committed with prior calculation and design. These factors
include: Id. at 102, 355 N.E.2d 825.
{¶ 15} In Jenkins, a major factor to the finding that the state did not offer sufficient evidence of prior calculation and design was that "the defendant did not know the victim, that there had been no previous disagreement, and that the meeting was at random." Id. at 103, 355 N.E.2d 825. Here, appellant knew the victims. He had expressed his displeasure with the gatherings that took place at the Feichtners' home over the years. He had a strained relationship with the Feichtners spanning some five years and included 12 complaints to the police.
{¶ 16} Appellant also showed deliberation in his choice of a weapon. His wife testified that there were several guns in various locations throughout their home. She further testified that shortly before the shootings, she heard appellant get out of bed, go into the kitchen, then walk
out the front door. Appellant had the choice of several firearms to take out of his house that night. He could have chosen the closest handgun located in the closet in...
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