State Of Ohio v. Mobley

• Court: Ohio Court of Appeals
• Writing for the Court: Gwin, P.J.
• Citation: State v. Mobley, 2011 Ohio 309, No. 2010-CA-0018 (Ohio App. Jan 26, 2011)
• Decision Date: 26 January 2011
• Docket Number: No. 2010-CA-0018,2010-CA-0018
• Parties: STATE OF OHIO Plaintiff-Appellee v. BRYAN L. MOBLEY Defendant-Appellant

2011 Ohio 309

STATE OF OHIO Plaintiff-Appellee v. BRYAN L. MOBLEY Defendant-Appellant

No. 2010-CA-0018

COURT OF APPEALS

RICHLAND COUNTY OF OHIO

FIFTH APPELLATE DISTRICT

DATE OF JUDGMENT ENTRY: January 26, 2011

JUDGES:

Hon. W. Scott Gwin, P.J.

Hon. Sheila G. Farmer, J.

Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2009-CR-484D

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JAMES J. MAYER, JR.

PROSECUTING ATTORNEY

BY: KIRSTEN L. PSCHOLKA-GARTNER

For Defendant-Appellant

DAVID HOMER

Gwin, P.J.

{¶1} Defendant-appellant Bryan Mobley appeals his convictions and sentences in the Richland County Court of Common Pleas for attempted aggravated murder, aggravated burglary, felonious assault, and discharging a firearm into a habitation. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} Deborah Tolley and appellant had been married for nearly twenty-five years. The couple had three adult children: Josh, who was in the Army; Caleb, who was living with his father; and Jennifer, who lived in Ashland Ohio with her own family. Deborah had separated from her husband when they argued over him going to Seattle, Washington to look for work. Appellant went to Seattle to look for work as a bricklayer due to the poor local economy. Ms. Tolley was opposed to the separation. Although she was the first to visit a divorce attorney, he actually came back from Seattle and was the one to first file for divorce. On June 18, 2009, appellant and Ms. Tolley had been divorced for approximately six months. Deborah Tolley was in the process of moving from her apartment to her boyfriend's residence.

{¶3} Shortly after 1:00 p.m., appellant drove to Fin, Feather & Fur, a sporting goods store in Ashland, Ohio. After perusing the gun section for a period of time, he purchased a Taurus 9mm handgun and a box of hollow point ammunition. He then visited his daughter and grandchildren. While visiting with his daughter, he learned of his ex-wife's plans to move in with her new boyfriend. This angered him, and, with the loaded gun he had just purchased, he began driving around to find his wife. Appellant first drove by her sister's house, where he thought she might be staying. When he didnot find her there, he drove to her apartment on Piper Road, where Ms. Tolley was packing her belongings.

{¶4} Appellant knocked on the door of his ex-wife's apartment with the loaded gun and a brochure about their son's graduation from boot camp. He planned to use the brochure as a ruse to get Ms. Tolley to open the door. Appellant knocked on the door. Deborah Tolley looked out the peephole and saw appellant with paperwork in his hand. She had not spoken to appellant since the divorce, and did not intend on opening the door on that day because she was afraid of him. Instead, she retreated to the bathroom and called 911.

{¶5} Appellant knew someone was inside because he saw the peephole darken. He became furious that his ex-wife was defying him by refusing to answer the door. As a result, he began firing the gun through the door. Appellant then shot off the doorknob and locking mechanism and forced his way inside.

{¶6} Once inside, he confronted Deborah Tolley in the hallway outside the bathroom, yelling "You fucking whore, you tore our family apart." (T. at 154; 464). Neighbors in the apartment building heard Deborah plead for her life, screaming, "Please no, please don't." (T. at 189-190; 349; 352). Appellant was standing a few feet away from her when he raised the gun and fired one shot. Ms. Tolley raised her hand to defend herself, and as a result, the bullet blew off her thumb and deflected into her abdomen.

{¶7} After she was shot, Deborah pleaded with appellant to take her to the hospital to get some help, telling him that they could talk about their relationship. Appellant told her that if she dropped her cell phone he would take her to the hospital.

Then, with the gun still in his hand, he put his arm around Deborah and walked down three flights of stairs in the apartment building to his car.

{¶8} Suzanne Stark, who lived in one of the first floor apartments, heard appellant telling Deborah, "Just come on, just come on" in an angry tone of voice as he hurried her out of the building. From appellant's tone of voice and the fact that he did not apologize or say it was an accident, Suzanne had the impression that appellant was taking Deborah out of the building to kill her somewhere else. Houston Roose, another neighbor who lived in the building, heard appellant telling Deborah Tolley to get to his car, and Deborah responding that she was going to pass out. Once Deborah was in his car, appellant placed the gun on his lap and proceeded to drive down Piper Road to State Route 545.

{¶9} Deborah's neighbors called 911 to report the shooting, and to give a description of the vehicle and its direction of travel. Coincidently, on that same day, the Violent Fugitive Task Force was in Richland County serving warrants. When the members of the task force heard the dispatch reports regarding the shooting, they immediately responded to the area. When they observed a vehicle matching the description provided, with a female passenger slumped in the front seat and a male driver, they blocked off the roadway and ordered the male occupant out of the car at gunpoint.

{¶10} Appellant stopped the vehicle, but did not comply with the officer's orders to raise his hands. Instead, they saw him reaching toward the floor of the vehicle. When he eventually opened the door, however he made no move to get out of thevehicle. The officers had to reach into the vehicle and pull him out onto the ground. Appellant struggled with the officers who were attempting to place him in handcuffs.

{¶11} After appellant was restrained, officers looked into the vehicle and found Deborah Tolley bleeding profusely from a gunshot wounds to her abdomen and thumb. The officers also noticed the loaded Taurus 9mm handgun on the floor where appellant had been reaching prior to being removed from the vehicle.

{¶12} Deborah Tolley was rushed to the hospital, where she underwent surgery. As a result of her injuries, a portion of her thumb was amputated, and portions of her small and large intestines were removed.

{¶13} Appellant was transported to the Richland County Jail where he was Mirandized and interviewed by Sergeant Donald Zehner of the Richland County Sheriff's Department. Appellant waived his Miranda rights and gave a taped statement in which he admitted to purchasing the gun, forcing his way into Deborah Tolley's apartment, and shooting her. Jeff Shanyfelt was a corrections officer in the Richland County Jail. He testified that appellant came in on suicide watch and that he was focused on whether or not his ex-wife was okay.

{¶14} Appellant was indicted by the Richland County Grand Jury for one count of attempted aggravated murder, one count of attempted murder, one count of kidnapping, one count of aggravated burglary, on count of discharging a firearm into a habitation, and one count of felonious assault. The indictment also contained a three-year firearm specification and a forfeiture specification for the vehicle that appellant drove during the commission of the offenses.

{¶15} On July 29, 2009, appellant's counsel filed a motion indicating that appellant intended to pursue a plea of not guilty by reason of insanity. As a result of that plea, Dr. James Sunbury of the District V Forensic Diagnostic Center evaluated appellant. His August 25, 2009 report indicated that appellant was not suffering from any severe mental disease or defect that would have caused him not to know the wrongfulness of his acts. Appellant was also evaluated by defense expert, Dr. Douglas Lehrer, who reported that although appellant was suffering from a disabling depressive disorder, that disorder did not affect appellant's ability to know the wrongfulness of his acts. As a result of these opinions, the State filed a motion in limine to exclude the defense from presenting expert and lay witness testimony regarding diminished capacity. At a hearing held on the morning of trial, the trial court granted the State's motion with respect to Dr. Lehrer's testimony; however, the court permitted the defense to offer lay witness testimony regarding appellant's state of mind at the time of the shooting.

{¶16} Appellant's trial commenced on January 14, 2010. During the trial, the State presented testimony from fifteen witnesses including the victim, Deborah Tolley, neighbors Suzanne Stark, Brittany Nichols, and Houston Roose, and a video deposition from Dr. Anthony Fahmy, who operated on Deborah Tolley after the shooting.

{¶17} After the State rested on January 20, 2010, the defense began presenting its case.

{¶18} Caleb Mobley, age 20, testified that when his father came back from Seattle, he was very hurt about the broken family. Appellant saw two people for his mental problems, a nurse practitioner and a doctor. He was given prescriptions for hismental issues. On cross-examination, he stated that both his mother and his father had started seeing other people by the date of the offense.

{¶19} Elaine Brown appellant's sister testified that he was extremely depressed before he left town to go to Seattle and that he was very stressed out due to financial problems. When he came back to Mansfield, he was an emotional wreck. He visited a doctor. Appellant began to see a second doctor and he seemed to be a little better over the next six or eight weeks. Ms. Brown testified, "We actually thought that he was getting better. Not that he wasn't suicidal, but he wasn't so focused on it as much." [T. at 413]. After being in custody for several months, he seemed better, more clear-minded, more like his old self again. [T. at 414].

{¶20} Jennifer Mobley, appellant's daughter testified that when he came back from Seattle, appellant was...