State v. Dover, 2008 Ohio 1071 (Ohio App. 3/10/2008), No. 2007-CA-00140.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin
Citation2008 Ohio 1071
Decision Date10 March 2008
Docket NumberNo. 2007-CA-00140.
PartiesState of Ohio, Plaintiff-Appellee, v. Courtney Dover, Defendant-Appellant.

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2008 Ohio 1071
State of Ohio, Plaintiff-Appellee,
v.
Courtney Dover, Defendant-Appellant.
No. 2007-CA-00140.
Court of Appeals of Ohio, Fifth District, Stark County.
Date of Judgment Entry: March 10, 2008.

Criminal appeal from the Stark County Court of Common Pleas, Case No. 2007-CR-0153.

Affirmed.

John D. Ferrero, Prosecuting Attorney, By: Kathleen O. Tatarsky, 110 Central Plaza South, Suite 510, Canton, OH 44702, for Plaintiff-Appellee.

John N. Mackey, 217 Second Street N.W., Suite 610 — Bliss Tower, Canton, OH 44702, for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.

OPINION

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GWIN, P.J.


{¶1} Appellant Courtney Dover appeals his conviction in the Stark County Court of Common Pleas for one count of felonious assault, a felony of the second degree, in violation of R.C. 2903.11; one count of improperly handling a firearm in a motor vehicle, a felony of the fourth degree, in violation of R.C. 2923.16(B); and one count of endangering children, a misdemeanor of the first degree, in violation of R.C. 2919.22(A). The felonious assault charge included a firearm specification. R.C. 2941.145. The appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On January 12, 2007, Perry Township Police Officer William Watson responded to the scene of a shooting at the Marc's Plaza on Tuscarawas Street in Perry Township, Ohio. As he pulled into the parking lot, he saw a man lying on the ground bleeding from a large wound in the buttocks area. Officer Watson saw no weapon but taped off the area as a crime scene and asked for the names of any witnesses. Officers located the injured man's vehicle, still running, in the parking lot. Sarah Dotson, who was shopping with her daughter, told Officer Watson that she heard what sounded like a cap gun and saw a man stumble, and collapse. She approached the injured man and determined that he was bleeding. The man requested that she contact his girlfriend. She then saw a dark car with circular brake lights leave the parking area. Ms. Dotson called 911.

{¶3} The police did not recover a weapon or shell casings from the scene of the incident. Prior to being taken by ambulance to the hospital, the injured man told police that "Corey" had shot him.

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{¶4} The ambulance squad arrived and took the injured man to Aultman Hospital. The injured man was later identified as George Curlutu. George Curlutu is a twice-convicted unemployed felon. In 2000, he was convicted of possession of cocaine and marijuana and sentenced to three (3) years in prison. In 2004, he was convicted of a second count of possessing cocaine and tampering with evidence. He served a two (2) year prison term.

{¶5} Mr. Curlutu and appellant were acquaintances and met at St. Mary's Church in Massillon, Ohio at a Texas Hold-Em tournament. They occasionally played poker and smoked weed at appellant's residence on 4th Street by the Canton Baptist Temple. The day of the shooting, January 12, 2007, appellant used his cell phone to call Mr. Curlutu and ask him to meet him at the Aldi's parking lot. Sensing a chance to go on a "blunt ride" — where you smoke weed together — Mr. Curlutu skipped his classes at barber school and met appellant at the parking lot. Mr. Curlutu knew appellant only as "C" or "Corey."

{¶6} Mr. Carlutu testified that on the day in question he smoked marijuana. He further stated that he was under the influence of marijuana at the time of the incident. Medical records indicated that he also had cocaine and valium in his system. Mr. Carlutu denied being under the influence of those substances. However, he admitted that he had used narcotics in the days preceding the incident.

{¶7} Mr. Curlutu pulled into the parking lot and waited for appellant who arrived driving a blue Chevrolet Impala with tinted windows. Mr. Curlutu noticed a little girl in a car seat dressed in a pink coat. Mr. Curlutu exited his car, leaving the motor running, and got into appellant's car. Appellant asked Mr. Curlutu if he could borrow some money

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— $300 or $400. Mr. Curlutu told appellant he did not have money like that. Appellant responded by reaching down to the left hand part of the door and pulling out a gun — a longer barrel revolver. Mr. Curlutu's first reaction was to grab the revolver with his left hand. A struggle ensued and the revolver landed on the car seat. Mr. Curlutu opened the car door to run and was shot in the buttocks — a near contact gunshot wound.

{¶8} Mr. Curlutu fell down and appellant pulled out of the parking lot. Mr. Curlutu was taken to Aultman Hospital. Surgery was performed and eventually a deformed bullet — a .38 special or .357-caliber bullet — was removed from his buttocks area.

{¶9} Detective Matthew Barker of the Perry Township Police Department was called to the scene to assist in the investigation of the shooting. Detective Barker talked with Mr. Curlutu at the hospital. Mr. Curlutu called his friend, Todd McCune, to learn more about the shooter. Detective Barker learned the shooter's first name was "Courtney," that he drove a blue Chevrolet Impala with tinted windows and lived by the Canton Baptist Temple. Detective Barker also learned that the shooter's cell phone number was (330) 371-3453 and that he had purchased the phone or minutes for the phone at Hever's Meats. Armed with the cell phone number, Detective Barker went to Hever's Meats and learned that the cell phone number belonged to appellant, and that his address was 4456 4th Street N.W., Perry Township, Ohio. Mr. Curlutu showed Detective Barker the residence where the shooter resided and it matched the address of appellant that Detective Barker had obtained from Hever's Meats.

{¶10} Detective Barker placed a photograph of appellant in a photo lineup with five other males with the same physical characteristics. Two days after the shooting, Mr.

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Curlutu identified appellant's photograph as the shooter and told Detective Barker that he was 100 percent sure.

{¶11} Molly Felder, the appellant's neighbor, saw the appellant pulling out of his driveway near the time of the incident. She observed him to be wearing a light colored jacket.

{¶12} Detective Barker went to the home on 4th Street identified as appellant's residence. Detective Barker saw signs that someone was home, knocked on the door but received no response. Finally, after about thirty minutes, Tammy Young, appellant's girlfriend and mother of his one-year-old daughter, came home. Ms. Young gave Detective Barker permission to enter the home. Inside the home Detective Barker found appellant carrying a blue cell phone with a telephone number (330) 371-3453. Detective Barker also collected from the home three coats or jackets belonging to appellant and a box of Winchester .38-caliber ammunition. A blue Chevrolet Impala belonging to Ms. Young was also at the residence. Ms. Young testified the appellant had keys to the car. Ms. Young told the police that she was at work at the time of the incident. The appellant was watching their child when she left, but could have taken the child to a baby sitter. She testified that Mr. McCune has come to the house on numerous occasions in the past to purchase drugs.

{¶13} Mr. Curlutu identified Ms. Young's car as the car used by the shooter; Ms. Dotson also identified the vehicle as the car that drove out of the Aldi parking lot.

{¶14} Appellant was taken to the Perry Police Department. Appellant denied knowing Mr. Curlutu when officers showed him his picture.

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{¶15} The three coats or jackets belonging to appellant were taken from the home and sent to the Stark County Crime Laboratory for DNA testing. Officers also obtained and sent to the Crime Laboratory oral swabs from the victim, Mr. Curlutu, for comparison. Kylie Graham, a technician with the laboratory compared three areas of bloodstains on a gold coat belonging to appellant with the oral swabs taken from the inner cheek of Mr. Curlutu. Graham opined that the bloodstains on the coat matched Mr. Curlutu's blood in three areas:

{¶16} "[GRAHAM] At the completion of a DNA test, we usually run a statistic when we have a match in order to evaluate how strong a match that is.

{¶17} "In this case, I got back a statistic for the bloodstain on the sleeve of the coat, the back of the coat, and the major profile from the left front of the coat, that was 1 in more than 280 billion." (2T. at 345). Tammy Young testified that the light colored jacket in evidence belonged to the appellant.

{¶18} Michael Short, of the Stark County Crime Laboratory, examined the bullet removed from Mr. Curlutu's buttocks and gunshot residue on blue and white shorts worn by Mr. Curlutu when he was shot. Mr. Short opined that the bullet was a .38 special or.357-caliber bullet that was shot from an operable firearm, most likely a revolver.

{¶19} The case was scheduled for a jury trial to begin on April 10, 2007. Prior to the beginning of voir dire, the State made a motion in limine to prohibit appellant from arguing that the victim was a drug dealer. Appellant's trial counsel objected arguing that his defense was that this incident involved a "drug deal gone bad." The trial court granted the motion in limine but indicated that it would allow appellant to re-address the issue based upon the testimony and evidence presented during trial.

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{¶20} After hearing the evidence and receiving instructions from the trial court, the jury returned with a verdict of guilty to all the charges in the indictment. At the sentencing hearing, the trial court merged the felonious assault conviction with the conviction for improperly handling a firearm in a motor vehicle finding that they arose from the same animus. Appellant received a prison sentence of seven years with a mandatory sentence of three years on the firearm specification for a total of ten years.

{¶21} Appellant now timely appeals his convictions and...

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