State v. Gervin
| Decision Date | 27 December 2016 |
| Docket Number | No. 9–15–52.,9–15–52. |
| Citation | 79 N.E.3d 59,2016 Ohio 8399 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Robert GERVIN aka Gregory Gervin, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Robert C. Nemo, Marion, for Appellant.
Kevin P. Collins, for Appellee.
{¶ 1} Defendant–Appellant, Robert Gervin, appeals the judgment of the Court of Common Pleas of Marion County convicting him of one count of improperly discharging a firearm at or into a habitation with a specification, two counts of aggravated arson, and one count of felonious assault with a specification and sentencing him to a total of 18 years in prison. On appeal, Gervin argues that the trial court erred by depriving him of his constitutional right to a fair trial and an appropriate sentence and entering convictions that were against the manifest weight of the evidence. Gervin also argues that he was denied effective assistance of counsel. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 2} On June 19, 2015, the Marion County Grand Jury returned a nine-count indictment against Gervin, charging him with six counts of felonious assault with a firearm specification in violation of R.C. 2903.11(A)(2), 2929.14(D), and 2941.145, all felonies of the second degree; one count of improperly discharging a firearm at or into a habitation with a firearm specification in violation of R.C. 2923.161(A), 2929.14(D), and 2941.145, a felony of the second degree; and two counts of aggravated arson in violation of R.C. 2909.02(A)(1), both felonies of the first degree. Gervin entered pleas of not guilty to all charges.
{¶ 3} On July 16, 2015, the Marion County Grand Jury returned a "Superceding Joint Indictment" against Gervin and Cordarius Jones, charging each co-defendant with two counts of improperly discharging a firearm at or into a habitation with a firearm specification in violation of R.C. 2923.161(A), 2929.14(D), and 2941.145, both felonies of the second degree; two counts of aggravated arson in violation of R.C. 2909.02(A)(1), felonies of the first degree; two counts of aggravated arson in violation of R.C. 2909.02(A)(2), felonies of the second degree; and three counts of felonious assault with a firearm specification in violation of R.C. 2903.11(A)(2), 2929.14(D), and 2941.145, all felonies of the second degree. Gervin entered pleas of not guilty to all charges.
{¶ 4} On October 21, 2015, Gervin filed a motion to sever his case from Jones's case.1
{¶ 5} The matter proceeded to jury trial, which took place from November 3 through November 6, 2015. Prior to voir dire, and outside the presence of the potential jury, both parties and the trial court discussed a newspaper article regarding Jones's case. The article included that Jones pleaded guilty to certain charges. The court acknowledged the potential problem that this could cause with the jury and stated, Trial Tr., p. 12.
{¶ 6} During voir dire, the trial court told the potential jury that charges against Jones would be addressed in a separate hearing and that this trial was solely for the purpose of determining Gervin's charges. Later, one of the potential jurors said "I do have a problem with the Defendant's supposed accomplice plead guilty—[.]" Id. at p. 42. The trial court immediately informed the potential jury to disregard the comment. The juror continued, "I read the paper, Your Honor." Id. at p. 43. The court then proceeded to explain to the potential jury why they should disregard anything they read in the newspaper about this case. A couple of other potential jurors indicated that they had seen the article in the newspaper as well. The outspoken juror indicated that he was on the fence of whether he could remain impartial, but was later dismissed from serving due to a medical condition.
{¶ 7} Virginia Dawson was the first witness to testify on behalf of the State. Dawson testified that she and her husband, William Dawson ("William"), lived at 412 East Farming Street in Marion, Ohio. She stated that during the early morning hours of May 31, 2015, she was awoken by the sound of glass breaking in her bedroom. She explained that she saw something repeatedly hit the glass window until it broke. She continued that after the glass broke, she noticed a fire on the window sill. She added that the fire was contained to the outside portion of the window because the storm window was in the up position, which blocked the blaze from igniting the curtain and other parts of the inside.
{¶ 8} Dawson testified that she screamed and pulled William out of bed. She admitted that she did not hear any gunshots. She stated that William pushed her off the bed and she remained on the floor until she was able to call for help while William put out the fire. At this time, the State played the 9–1–1 call placed by Dawson for the jury, which was later admitted into evidence. Dawson identified several photographs of her home, which showed the damage caused by the fire. During this time, the prosecutor began to project the photographs on a screen so the jury could view the photos, which prompted the court to interrupt and state "First of all, is there any objection to those—is there any objection to him displaying the photographs at this point?"Id. at p. 95. Counsel for Gervin did not object.
{¶ 9} Dawson also identified a photograph of her house that showed bullet holes, which she stated were not there prior to May 31, 2015. She stated that one of the bullets was found lodged in her refrigerator, which was later removed by the fire department. Dawson testified that two bullet holes were found in her bed. She explained that after investigators had left her house she found a bullet in her comforter. She added that she contacted the police and someone came out to pick up the bullet.
{¶ 10} On cross-examination, Dawson admitted that she was Anna Harris's ("Anna") grandmother. She testified that Anna was in town that weekend, but was not at the house when this occurred. Dawson stated that the fire was caused by something that was thrown through the window by someone wearing a white hoodie, which she believed was called a Molly cocktail. She explained that she could not tell if the individual was a man or a woman or if the individual was white or black.
{¶ 11} William was the next witness to testify on behalf of the State.2 William testified that he was awakened around 6:00 am on May 31, 2015 by his wife who was screaming about a fire in the room. He stated that he looked and saw the fire, then he heard a couple of gunshots. He added that he eventually got up and grabbed a fire extinguisher and proceeded to put out the fire. William estimated that the damage caused by the fire exceeded $1,000.
{¶ 12} On cross-examination, William clarified that he awoke to the sound of his wife screaming, saw the fire, and then heard three gunshots. He also admitted that he did not see the person who threw the Molotov cocktail. He testified that he did not know Gervin and had not seen him before the day of trial.
{¶ 13} After cross-examination, the court asked a series of questions, which William answered. The court also asked a series of questions that were suggested by the jury. In response to this line of questioning, William testified that the gunshots occurred within approximately 10 seconds of one another.
{¶ 14} Officer Steven Luoma of the Marion City Police Department was the next witness to testify. Officer Luoma testified that he was a patrol officer with the department and was working third shift on May 31, 2015. He stated that he was dispatched to 412 East Farming Street in Marion at 6:13 a.m. in response to a shots fired call. At the scene, Officer Luoma testified that he spoke with Anna and she told him that the suspect was a black male wearing a white hoodie. At this time, the court interrupted, and the following exchange occurred between the trial court and defense counsel:
{¶ 15} Officer Luoma testified that he entered the home, which was still covered in smoke, and found the Molotov cocktail in the bedroom window. He described it as "an oil can with white rag that was hanging out of it." Id. at p. 135. He stated that he and another officer went outside and located three bullet casings near to each other.
{¶ 16} One by one, Officer Luoma authenticated and identified several photographs of the scene that he took the day of the fire. Each photograph was published for the jury as Officer Luoma described their contents. In one of the photographs, Officer Luoma explained that the oil container was wrapped in red tape.
{¶ 17} Officer Luoma identified the Molotov cocktail, which he retrieved from the window. It was later admitted into evidence. He added that the container appeared to be a Formula motor oil container, which was black with a green label. He concluded by stating that the wick was attached to the container by red tape.
{¶ 18} On cross-examination, Officer Luoma testified that the contents of the container had spilled out and appeared to contain gasoline. Officer Luoma explained that after he collected any evidence in this case he cataloged it and placed it in a secure evidence locker at the police department.
{¶ 19} After cross-examination, the court asked Officer Luoma a series of questions that were suggested by the jury.
{¶ 20} Lieutenant James Fitsko of the Marion Police Department was the next...
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