State v. Oller

• Decision Date: 07 March 2017
• Docket Number: No. 16AP–429,16AP–429
• Citation: 85 N.E.3d 1135,2017 Ohio 814
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Timothy M. OLLER, Defendant–Appellant.
• Court: Ohio Court of Appeals

85 N.E.3d 1135

2017 Ohio 814

STATE of Ohio, Plaintiff–Appellee,

v.Timothy M. OLLER, Defendant–Appellant.

No. 16AP–429

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 7, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

On brief: Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik P. Henry, Columbus, for appellant.

DECISION

BRUNNER, J.

{¶ 1} Defendant-appellant, Timothy M. Oller¹ , appeals a judgment of the Franklin County Court of Common Pleas entered May 17, 2016, sentencing him to serve 21 years in prison. The sentence resulted from a criminal trial whereby a jury found him guilty of a single count of involuntary manslaughter after making the specific finding that Timothy acted under provocation. On conviction and sentencing, the trial court judge stated on the record that he rejected the jury's finding that Timothy had acted under provocation and stated that his acts resulting in Davis' death were calculated. As part of sentencing, the trial court judge found Timothy to be a repeat violent offender under R.C. 2941.149. Because we agree that the trial court erred by rejecting the jury's finding that Timothy acted while under provocation in order to justify the sentence the trial court imposed, we reverse and remand for a new sentencing hearing with the instruction that the trial court must accept the factual findings of the jury and proceed to sentence from that basis. We also instruct that if, on resentencing, the trial court again imposes a period of imprisonment as a consequence of the repeat-violent-offender specification, the trial court must state such findings on the record as required by R.C. 2953.08(G)(1) and 2929.14(B)(2)(e). Because we find no basis on which to sustain any of Timothy's other six assignments of error or related subparts, we otherwise affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Facts as Presented at Trial

{¶ 2} On April 12, 2015, Timothy fatally stabbed Monica Davis near a small grocery store, Wheatland Foods. The store is located on the northeast corner of the intersection of Graham Street and Mt. Vernon Avenue in Columbus, Ohio, and the stabbing itself took place just north of the store on the east side of Graham Street. As a result, Timothy was indicted on April 21, 2015 for one count of murder and one count of felony murder with felonious assault as the underlying predicate offense. (Apr. 21, 2015 Indictment.)

{¶ 3} The stabbing and events leading up to it were captured on a police camera. Thus, after only a short interval for investigation and preparation, on May 2, 2015 a jury trial commenced. The video (which lacks sound but clearly shows the events) was played at trial and the parties stipulated to the location, date, time, and identities of the persons depicted in the video. (May 3, 2016 Tr. Vol. II at 63–64, filed on July 18, 2016; State's Ex. A.){¶ 4} The video shows that shortly before 5 p.m. Timothy and his brother, Robert Oller, approached Wheatland Foods and entered the store. (State's Ex. A at 24:24–24:35.) Davis, who had been loitering in the vicinity of the store for some period of time, entered the store approximately three minutes after the Oller brothers. Id. at 26:34–26:38. Less than one minute later, all three emerged, Davis arguing with Timothy and pushing him. Id. at 27:02–27:35. A group gathered and Timothy was briefly surrounded. See e.g., id. at 28:20. Davis mimed pelvic thrusting several times, once against a bicycle, once in the air, and once against a phone booth, and pointed repeatedly to Timothy. Id. at 29:15–29:38. However, within approximately five minutes the situation appeared to have been mostly resolved; Davis and Timothy shook hands, and the Oller brothers left as the owner of Wheatland Foods attempted to calm down Davis. Id. at 28:54–59, 30:10.

{¶ 5} A few minutes after the Oller brothers departed, a police officer, Sergeant Douglas Wilkinson, stopped his cruiser on seeing Davis' apparent irate state and had a conversation with Davis. Id. at 31:20–36:16. Wilkinson would later testify that Davis said someone had touched her inappropriately but that she did not want to do anything about it because the person had apologized. (Tr. at 130–33.) Wilkinson also would later testify that Davis was intoxicated. (Tr. at 137.)

{¶ 6} Approximately 17 minutes after the end of the first interaction, the Oller brothers returned to the store. (State's Ex. A at 47:45–47:50.) After entering and then leaving the store, the brothers began to depart from the area, but then apparently changed their minds and instead loitered, drinking while leaning against the side of the store facing Graham Street. Id. at 50:10–50:24. Approximately 15 seconds after the brothers began drinking while leaning against the side of the store, Davis returned to the store, peered around the side of the building, and initiated a conversation. Id. at 50:40–50. During this conversation, Paul Jones (a young man with a thick cane held over his shoulder like a club) approached and loitered nearby. Id. at 50:46–51:00. Almost simultaneously, another person from the neighborhood, Renee Wiley, drew near and was flagged down by a gesticulating Davis who pointed repeatedly at the Oller brothers while talking with Wiley. Id. at 51:00–51:11. Wiley then began a close conversation with the brothers, gesturing quickly and repeatedly as she spoke. Id. at 51:12–52:45. This conversation escalated into Wiley attempting to strike both brothers as the shopkeeper of Wheatland Foods restrained her and attempted to insert himself between Wiley and the brothers. Id.

{¶ 7} At this juncture, another neighbor, Ethni Smith, arrived and began gesturing expansively as the shopkeeper attempted to hustle the brothers away down Graham Street. Id. at 52:43–53:07. However the brothers, led by Timothy, turned back and when Smith and Davis rounded the corner again to continue the argument, Timothy exposed his waistband to reveal that he carried a knife. Id. at 53:07–17. After more words and gestures from both Smith and the shopkeeper to encourage the various gathered persons to disperse, the Oller brothers turned to leave. Id. at 53:17–53:38. They began walking down the east side of Graham Street while Davis crossed to the west side of Graham Street and left the frame of the video. Id. at 53:36–48.

{¶ 8} After approximately ten seconds, Davis reentered the frame of the video from the west side of Graham Street and made straight for the two brothers who were then still on the east side of Graham Street. Id. at 53:55–53:58. As Davis approached, Robert stepped off the curb and met Davis in the middle of the street while Timothy remained on the sidewalk on the east side. Id. at 53:54–54:02. When Davis met Robert in the middle of the street she punched him twice after reputedly proclaiming, "I'm going to beat your ass," or something to the effect that she was going to "fuck him up." Id. at 54:02–06; May 5, 2016 Tr. Vol. IV at 292, 309–10, 326. Then she turned to Timothy, who was still on the sidewalk. Id. at 54:06–54:10. She approached him and punched him in the side of the head, shoved him, and then turned to Robert again. Id. When Davis turned toward Robert again, Timothy ran up behind her and stabbed her in the right side. Id. at 54:10–13. Davis clutched her side, teetered for approximately 13 seconds and then fell face-first onto the sidewalk. Id. at 54:13–26. Timothy attempted to flee as neighbors converged but they caught him and stomped him to unconsciousness before laying him against a telephone pole where the police found and arrested him minutes later. Id. at 54:12–56:34, 57:38–107:02.

{¶ 9} At trial, a deputy coroner testified that Davis died from a seven-inch-deep stab wound in the right side of her lower back. (Tr. Vol. II at 68, 75–76, 78–79.) According to the coroner, the knife only stopped penetrating when it hit her second lumbar vertebra. (Tr. Vol. II at 78.) The wound injured her organs and vessels including the aorta and inferior vena cava with the result that she bled to death. (Tr. Vol. II at 68, 75–76, 78–79.) The parties stipulated that Davis' DNA was present on a long kitchen knife discovered at the scene. (Tr. Vol. IV at 268.) The deputy coroner also testified that Davis had cocaine and cocaine metabolites in her system and tests revealed a 0.15 percent blood alcohol concentration, more than double the legal driving limit. (Tr. Vol. II at 83–84.)

{¶ 10} Ethni Smith testified that she did not see Davis with any weapon but that Timothy had an old butcher knife with a wooden handle and a long rusted blade. (Tr. Vol. II at 112, 115–16.) She testified that Robert encouraged Timothy, but admitted that initially she falsely told the police that Robert had held Davis while Timothy stabbed her. (Tr. Vol. II at 122–23.) She also related that all of the participants in the affray were under the influence. (Tr. Vol. II at 125.)

{¶ 11} Renee Wiley also testified that she did not see Davis with a weapon. (May 4, 2016 Tr. Vol. III at 197–98.) Wiley alleged that the Oller brothers were trying to fight everyone and stir up trouble. (Tr. Vol. III at 191–94.) She also testified that she had known Davis since they were 12–years-old and that Davis was like family to her. (Tr. Vol. III at 187.) She admitted having a felony conviction for receiving stolen property and that on the day of the stabbing she had been drinking beer and using crack cocaine. (Tr. Vol. III at 186, 188–89.)

{¶ 12} The jury also heard recorded statements from Timothy. The first was a video taken from inside the cruiser shortly after his arrest in which he made a number of unsolicited statements as follows:

Think because you're in their neighborhood they think they can, like, tell you what to do. Uhh, no. You might die fuckin with me.

You done ran into the wrong honkey. I'll end this bitch.

You possibly could be dead fuckin with me. Uh, yeah.

I'll put your ass in a body bag, bitch!

I doan give a fuck!

(State'...