State v. Howard
| Decision Date | 02 July 2013 |
| Docket Number | CASE NO. 2012CA00061 |
| Citation | 2013 Ohio 2884,2013 Ohio 1972 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. ERICK MYDELL HOWARD Defendant-Appellant |
| Court | Ohio Court of Appeals |
2013 Ohio 2884
2013 Ohio 1972
STATE OF OHIO Plaintiff-Appellee
v.
ERICK MYDELL HOWARD Defendant-Appellant
CASE NO. 2012CA00061
COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DATE OF JUDGMENT ENTRY: July 2, 2013
This matter came before the Court upon appellants' motions for reconsideration pursuant to App.R. 26(A) filed May 23, 2013.
In the case at bar, this Court vacated Howard's sentences for two reasons. The Court unanimously agreed to remand the case for failure to merge allied offenses. (Farmer, J. dissenting, "I would only remand for resentencing on allied offenses.", ¶141). The majority further agreed that there exists an appearance Howard was penalized because he chose to exercise his right to a jury trial rather than plead guilty. Howard, 2013-Ohio-1972, ¶85; (Hoffman, J. Concurring in part)("I further concur in Judge Gwin's decision to vacate and reconsider Appellant's sentence. I do so based solely on his conclusion there exists an appearance Appellant was penalized because he chose to exercise his right to a jury trial rather than plead guilty"), ¶137.
Upon review, we find the Motion is well taken in part, and denied in part.
Page 2
The appellee correctly notes that the Memorandum-Opinion filed May 13, 2013 at ¶87 incorrectly states that the trial court imposed appellant's conviction for rape concurrently, when in fact the sentence was imposed consecutively. Further, the Court left out the citation to State v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962, 825 N.E.2d 637, at ¶83.
Accordingly, this Court corrects the May 13, 2014 Opinion at ¶87 to delete "However, the trial court did not increase Howard's sentence because of this difference, choosing instead to run the time for the rape concurrent with the sentence for the aggravated burglary and aggravated robbery. In spite of the time for the rape charge running concurrently," The opinion if further corrected to include the missing citation at ¶83.
Appellee's Motion for Reconsideration filed May 23, 2013 is denied in all other respects in its entirety.
Therefore, this nunc pro tunc judgment entry along with a nunc pro tunc opinion and judgment entry shall be filed in this matter to correct the errors.
IT IS SO ORDERED.
____________________
HON. W. SCOTT GWIN
____________________
HON. WILLIAM B. HOFFMAN
____________________
HON. SHEILA G. FARMER
Page 3
STATE OF OHIO Plaintiff-Appellee
v.
ERICK MYDELL HOWARD Defendant-Appellant
CHARACTER OF PROCEEDING:
Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2011CR1470B
JUDGMENT:
Affirmed in part; reversed in part and
remanded
APPEARANCES:
For Plaintiff-Appellee
JOHN FERRERO
BY: CHRYSSA N. HARTNETT
Stark County Prosecutor's Office
For Defendant-Appellant
DONALD P. WILEY
ANTHONY BROWN
DANIEL FUNK
MELISSA DAY
Page 4
Gwin, P.J.
{¶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.
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{¶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 to the other intruder as "Steve." McNemar informed the police that he overheard one of the intruders say the name "Nicole1 ."
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{¶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.
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{¶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...
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