State v. Howard, Case No. 2012-CA-00061
| Citation | 2013 Ohio 1972 |
| Decision Date | 13 May 2013 |
| Docket Number | Case No. 2012-CA-00061 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. ERICK MYDELL HOWARD Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
JUDGES:
Hon. W. Scott Gwin, P.J.
Criminal appeal from the Stark County
Court of Common Pleas, Case No.
For Defendant-Appellant
DONALD P. WILEY
ANTHONY BROWN
DANIEL FUNK
MELISSA DAY
Baker, Dublikar, Beck, Wiley & Mathews
{¶1} Appellant Erick Mydell Howard ["Howard"] appeals his convictions and sentences on aggravated burglary, aggravated robbery, rape, and kidnapping, together with the attendant firearm specifications. Plaintiff-appellee is the State of Ohio.
{¶2} Brian McNemar and Ava Gabriele were known to have cash readily available, as McNemar was a drug dealer who kept a safe in his basement. During the night of August 19, 2012, two armed masked intruders entered into the bedroom of the home where the couple was sleeping. McNemar and Gabriele described the two attackers as black males wearing jeans and long sleeves with their faces covered with masks. Entry was made by duct taping a basement window and breaking the glass with the butt of one of the guns. A neighbor saw this activity and called the police shortly after 3:00 a.m.
{¶3} The intruders took the cell phones of the couple from a nightstand. The larger of the intruders was using one of the cell phones for a light source. The smaller of the two intruders used duct tape to bind the hands and feet of McNemar; the larger intruder used the duct tape to bind Gabriele in a similar manner. Duct tape was placed across McNemar and Gabriele's mouths to prevent them from screaming. The intruders demanded the combination to the safe. McNemar told the pair that there was nothing in the safe. The smaller of the intruders asked, "Where is the cash." McNemar motioned to some envelopes on the nightstand, which contained $1,500.00 in cash. The smaller intruder began looking around the bedroom for other valuables.
{¶4} The larger of the two intruders told Gabriele, "let me see those titties again." McNemar, who was able to loosen the duct tape on his mouth slightly, told Gabriele to "let him." [3T. at 459]. McNemar heard the intruder say, "Those are some nice tits."
{¶5} The larger intruder removed the covers saying, "Let me see that pussy." He then tells Gabriele to spread her legs. She cannot because her legs had been duct taped together. The larger intruder grabbed Gabriele's ankles and lifted her legs into the air. Gabriele testified that she then felt the tip of something being inserted into her vagina. The duct tape fell off Gabriele's mouth and she began to scream. McNemar, who by this time had been able to free his hands, lunged at the assailant. The smaller assailant restrained McNemar by shoving the pistol into McNemar's eye. The couple was then restrained with more duct tape. After regaining control, the intruders proceeded to search for more money. The pair hear the smaller intruder yell, "Come on Steve let's go." The intruders left the residence sometime around 3:47 a.m.
{¶6} Once the police arrived, Gabriele was taken to the hospital where a rape kit was performed. A maroon sweatshirt and a pair of gloves were found in the side yard of the complex. A contact lens thought to belong to one of the intruders was discovered in the couple's bed.
{¶7} Neither victim was able to identify their attackers. Initially, Gabriele and McNemar informed the police that both of the intruders were African-American. Gabriele also informed the S.A.N.E. nurse while at the hospital the one intruder had referred tothe other intruder as "Steve." McNemar informed the police that he overheard one of the intruders say the name "Nicole1 ."
{¶8} Michael Coy, a co-worker and friend of McNemar read about the break-in in a local community newspaper. Coy related that he thought he had called McNemar that night to arrange to buy marijuana from him. When McNemar told him he did not have any, Coy called Howard. Coy claimed Howard sounded suspicious because he told Coy that he, Howard "does not do that anymore, but he may have some later on." Although unable to recall the description at trial, Coy felt the description of the suspect in the break-in of his friend's home that was in the newspaper matched Howard. Coy told McNemar that he thought Howard was involved in the incident.
{¶9} McNemar shared Coy's suspicion with Gabriele, who in turn relayed the information to her mother. Because Howard had been a standout athlete in high school, Gabriele asked her mother to search the internet for "anything that would help us identify him." Jane Gabriele was able to locate an interview of Howard conducted three-years ago on http://www.youtube.com. Jane Gabriele played the audio portion of the interview with Howard from her computer speaker to her telephone. The daughter listened to the feed on her cell phone. Ava Gabriele recognized the voice as the larger of the two intruders and the one who had physically assaulted her.
{¶10} Rumors began to circulate about the identity of the intruders. Michael Taylor was telling people at a local park about his involvement in the crime. On August 29, 2011, Gabriele and McNemar told the police about the internet video and their belief that Howard had been one of the intruders.
{¶11} The police questioned Taylor on September 1, 2011. Taylor denied having any knowledge of the incident. He was questioned by the police a second time on September 5, 2011. Taylor continued to deny any knowledge of the incident.
{¶12} However, Shane Riggins informed the police that Taylor had told him the perpetrators had gone to a local Wal-Mart to purchase duct tape and gloves on the night of the incident. The police obtained the video surveillance tapes from inside the store as well as video tapes of the parking lot. The police also obtained copies of receipts for duct tape, stealth gloves and gum. Detective Randy Manse of the North Canton Police Department recognized Howard and Seth Obermiller as the individuals who had purchased the duct tape and the gloves. He testified that the pair entered the store separately. Howard purchased the gloves; Obermiller purchased the duct tape. The video showed Howard and Obermiller leaving the store and getting into Michael Taylor's car.
{¶13} The police questioned Howard on September 5, 2011. He told the police that he was at Dogwood Park on the night of the incident. Howard told the police that he was mad because he had bought some "acid" and believed that it was fake. Howard admitted that he "hooked up" with Michael Taylor. He further admitted that he knew McNemar. He denied any knowledge of the break-in.
{¶14} On September 7, 2011, police obtained DNA samples from Taylor and Howard. Later that day, Taylor appeared at the police station of his own accord. Taylor told the police about Obermiller's involvement in the planning of the break-in and its subsequent execution; however, Taylor did not implicate Howard. Taylor told the detective that the third person was "Ghost" a person he had never met before.
{¶15} Obermiller had opted to go to Pennsylvania to let things cool down. While driving in Pennsylvania, Obermiller was pulled over with the gun and some marijuana in the car, and was arrested. After this arrest, he returned to North Canton, where he was contacted by the police about a week after the break-in.
{¶16} Obermiller told the police during the night of August 19, 2012, he and Howard were partying in Cuyahoga Falls, smoking marijuana and taking acid. Believing the acid to be fake, the two returned to North Canton and talked about robbing the person who sold them the acid. Obermiller drove to his home to pick up two pairs of gloves, two ski masks, and a gun (a .9 mm Llama). Howard then made a phone call to Jamie Hawkins about getting another gun from him. Obermiller drove to Hawkins' home next. Howard told Hawkins that he needed a gun because he had been robbed. Hawkins told Howard that he could borrow his .45 caliber handgun, but he had to return it by 4:00 a.m. Hawkins told Howard that he would hold Howard's cell phone as collateral.
{¶17} Howard and Obermiller then picked up Taylor, who had just got off work. Taylor suggested to his two friends that they rob McNemar and Gabriele. Taylor was friends with both McNemar and Gabriele, and had bought and smoked pot from and with them.
{¶18} The trio later went to a Wal-Mart to make purchases in furtherance of their plan. The trio then went to the McNemar-Gabriele residence in North Canton. After parking their vehicle, Taylor remained outside as a lookout. All three went to the backyard where they duct taped a basement window and broke it with the butt of one of the guns. Obermiller and Howard then went into the basement with their ski masks andgloves, while Taylor opted to stay outside and serve as a lookout. A neighbor saw this activity and called the police shortly after 3:00 a.m. Taylor called Obermiller to alert him that the police had arrived. Not wanting to be caught by the police, Taylor left his gloves and hoodie at his hiding spot and left the area. Taylor's cell phone was also dying, so he went to a nearby Laundromat to recharge it. Howard and Obermiller remained inside the residence as the police searched the backyard area, and then proceeded upstairs to look for the occupants once the police flashlights had left.
{¶19} After robbing the couple, Howard and Obermiller returned to the car. Taylor was not there. The pair proceeded back to Hawkins to return the gun and retrieve Howard's cell phone. Hawkins had in fact texted Obermiller close to 4:00 a.m. inquiring about the gun. The two then got rid of their gloves and ski masks....
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State v. Howard
...Ohio 28842013 Ohio 1972STATE OF OHIO Plaintiff-Appelleev.ERICK MYDELL HOWARD Defendant-AppellantCASE NO. 2012CA00061COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICTDATE OF JUDGMENT ENTRY: July 2, 2013NUNC PRO TUNCJUDGMENT ENTRY This matter came before the Court upon appellan......