State v. Ash, 16 MO 0002

• Court: United States Court of Appeals (Ohio)
• Citation: 108 N.E.3d 1115,2018 Ohio 1139
• Docket Number: NO. 16 MO 0002,16 MO 0002
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Ralph A. "Sonny" ASH, Defendant–Appellant.
• Decision Date: 15 March 2018

108 N.E.3d 1115

2018 Ohio 1139

STATE of Ohio, Plaintiff–Appellee,

v.Ralph A. "Sonny" ASH, Defendant–Appellant.

NO. 16 MO 0002

Court of Appeals of Ohio, Seventh District, Monroe County.

Dated: March 15, 2018

Atty. Philip Bogdanoff, Special Prosecutor, Monroe County, Monroe County Prosecutor's Office, Atty. James L. Peters, 101 N. Main Street, Rm. 15, Woodsfield, Ohio 43793, For Plaintiff–Appellee

Atty. Edward A. Czopur, 42 North Phelps Street, Youngstown, Ohio 44503, For Defendant–Appellant

JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Defendant–Appellant Ralph "Sonny" Ash appeals his convictions in the Monroe County Common Pleas Court for murder, abuse of a corpse, and having weapons while under disability. Appellant assigns as error ineffective assistance of counsel for failing to file a suppression motion alleging the first search warrant was based on stale information. He contends the court erred in admitting ballistics testimony where the expert could not identify or exclude two firearms as having fired a bullet recovered from the victim's skull. He complains an anthropologist testified to a matter which was outside her area of expertise and which was not specified in her report. He also contests the admission of other acts evidence from three witnesses, adding confrontation clause and hearsay arguments as well. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} Appellant and Tracey Heskett (the victim) were married for a brief time in 1998. After some time apart, they resumed a relationship which ebbed and flowed over the course of 15 years. Appellant voiced he could not "get rid of her" and said he called her "herpes" as a result. He said he "cussed her every day" calling her a "drunken whore, thieving bitch." (St.Ex. 36). The victim lived in a trailer on her mother's property, and Appellant lived in a house in the same township.

{¶ 3} On February 13, 2015, Appellant picked up the victim at her trailer. She left her phone with her aunt, who moved in with her two weeks prior. The victim later called her aunt, voicing she had to sneak Appellant's phone to make the call after he threw her out by the hair. (4 Tr. 149).¹ The victim's aunt then drove to Appellant's house to retrieve the victim.

{¶ 4} The next day, Saturday, February 14, 2015, Appellant called the victim at 4:30 a.m. He accused her of stealing his two wallets and threatened to report her to the police if she did not come over to find or return his wallets. (4 Tr. 150); (St.Ex. 36). They spoke again at 5:33 a.m. (2 Tr. 13–14). The victim left in her vehicle at approximately 6:30 a.m. Leaving her phone with her aunt, she instructed her aunt to call Appellant's phone if she did not return by 9:00 a.m. (4 Tr. 152). The victim never returned. Her aunt called Appellant's phone throughout the weekend.

{¶ 5} On Monday morning, February 16, 2015, the victim's aunt contacted the Monroe County Sheriff's Office to report the victim was missing. An officer visited Appellant's residence around 9:00 a.m. Appellant invited the officer into his house. Appellant confirmed the victim arrived at his house before daylight on the morning of February 14, 2015. (1 Tr. 304). According to Appellant: two "pipeliners" arrived in front of his house in a white company truck just after daylight and sounded the horn; when he went outside, one of the men asked if Tracey was there; and the victim walked toward the truck, passing him without making any comment. (1 Tr. 304).

{¶ 6} The victim's vehicle was in Appellant's driveway covered with two to four inches of snow. The officer found the victim's driver's license in the center console of her vehicle. Appellant's vehicle was in the driveway, and it was free from snow. Appellant opened his vehicle for the officer and consented to the officer looking around his home. The house appeared "uninhabitable" to the officer, and thus, he could not discern if anything appeared out of place. (1 Tr. 308).

{¶ 7} Appellant said the victim did not remove her coat while at his house and was wearing a turquoise-green coat, a brown knit hat, and multiple layers of clothing. (1 Tr. 305–306). The victim's aunt confirmed the victim was wearing a turquoise jacket and a brown knit hat. She noted the victim always wore multiple layers of clothing and described some of the layers the victim wore that day: a red plaid shirt, a pink shirt, other top layers, and jeans with pants underneath. (4 Tr. 153). After speaking to the victim's aunt, the officer returned to Appellant's house. This time, the officer looked upstairs where he noticed two firearms in Appellant's bedroom. (1 Tr. 315).

{¶ 8} The Sheriff's Office distributed missing person fliers, visited businesses, and went to various well sites and well pads due to Appellant's "pipeliner" story. They investigated at least three tips which did not add to the investigation: the victim's sister-in-law asked the police to check an illegal dump site; a driver saw a woman urinating next to a truck along a road; and a store employee heard a "pipeliner" make a sarcastic remark about the missing person flier. Appellant reiterated his story (about pipeliners picking up the victim) to an officer who visited him on February 20, 2015 to ascertain if he had heard from the victim. (3 Tr. 23, 28).

{¶ 9} A lieutenant became involved in the case on or about February 25, 2015. He visited Appellant to hear the story about the pipeliners. Appellant invited him into the house and subsequently pried open the frozen lid from a deep stone well near the porch so the lieutenant could check inside. (2 Tr. 45–46). Besides the disarray in the house, there was "junk," including a refrigerator, on the front porch and in the yard; in discussing the yard items, Appellant told the lieutenant the dummy hanging from his tree was supposed to be a pipeliner who broke a branch off a tree. (2 Tr. 51–52).

{¶ 10} Appellant confirmed he called the victim early on February 14, 2015, accused her of stealing his wallets, and demanded she bring back the wallets or find them. (2 Tr. 46). Yet, he said they did not look for the wallets or fight when she arrived that morning, estimating the time of arrival as 7:00 a.m. (2 Tr. 46–47). He noted they did not get along and she would often leave for a time after they fought; he claimed she would be back and she does this all the time. (2 Tr. 48).

{¶ 11} The lieutenant obtained the victim's phone records and ran Appellant's criminal history. He discovered Appellant had a West Virginia felony conviction for unlawful assault. As Appellant was not permitted to possess a firearm due to this prior conviction and the first officer to visit Appellant's house noticed firearms, a search warrant for guns was prepared. The search warrant was executed on March 11, 2015. Twelve firearms were confiscated, along with 2,000 rounds of ammunition and black powder for reloading ammunition. The officers noticed Appellant's two wallets on his nightstand. They saw a homemade whip with blood on it and noticed what appeared to be blood on a pair of jeans. A partially burned bright turquoise-green coat was spotted in a burn pile forty or fifty yards from the house. (2 Tr. 57, 81–82). A gray sweatshirt and pieces of burnt carpet were in the burn pile as well. Appellant was immediately arrested for having weapons while under disability.

{¶ 12} During his interview that day, Appellant said the guns belonged to the victim but acknowledged helping her reload the ammunition with powder. Appellant then described where he obtained the .22 caliber Ruger revolver which the police discovered behind his chair. He opined the victim left the state, noting many of the pipeliners who passed by his house were from another state. He claimed the victim invited pipeliners into his house once when he was in jail. He said the victim took his two wallets and he never got them back. He then described in detail the two stolen wallets which officers spotted on his nightstand (one had a Pittsburgh Steelers emblem embossed into brown leather and one was black leather with his identification inside). (2 Tr. 116, 118).

{¶ 13} Based on these developments, a second search warrant, seeking evidence of an assault, was executed the next day. A gun box and a box of ammunition were spotted on the ground behind a shed. The gun box contained a .38 caliber Smith & Wesson revolver, four unspent .38 cartridges, and one spent .38 cartridge. (1 Tr. 327). Bones and a belt buckle were observed among ashes in a 55 gallon drum used as a burn barrel. When the barrel was tipped over, a strong odor of fuel emanated from the contents and a charred body part was revealed; it was half of a human head and neck with one shoulder and the top of an arm still attached. (1 Tr. 319; 2 Tr. 108, 119). A red shirt was visible on the shoulder. Other bone fragments were recovered as well. An agent with the State of Ohio's Bureau of Criminal Investigation (BCI) documented what appeared to be a trail of burnt fabric pieces between the open burn pile and the burn barrel. (3 Tr. 182, 191, 197–198).

{¶ 14} The forensic pathologist performed an autopsy of the remains and discovered a bullet in the victim's left upper neck near the second cervical vertebrae. (4 Tr. 35, 48). He opined the victim was alive when shot as there was blood around the bullet. (4 Tr. 61). DNA testing showed the fluid recovered during the autopsy was consistent with the victim's DNA (one in one trillion, 519 billion). (3 Tr. 58–59, 66). A mass of three layers of clothing from the main body part recovered was examined; the forensic pathologist found blood between the layers of fabric and noticed a strong petroleum smell. (4 Tr. 45–46). The State Fire Marshal found this fabric contained gasoline. (3 Tr. 42, 44).

{¶ 15} The forensic pathologist observed the main body part was cut from the remainder of the body along a single plane in what appeared to be a single...