State v. Randy Resh
| Decision Date | 11 December 1992 |
| Docket Number | 90-P-2256,92-LW-5531 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. RANDY RESH, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas Case No. 90 CR 0068.
ATTY TIMOTHY J. HART, 136 North Water Street, Suite 209, Kent Ohio 44240 (For Defendant-Appellant).
ATTY DAVID W. NORRIS, PORTAGE COUNTY PROSECUTOR, 466 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Before HON. DONALD R. FORD, P.J., HON. JOSEPH E. MAHONEY, J., and HON. ROBERT A. NADER, J.
This matter is before the court on appeal from the Portage County Court of Common Pleas. Defendant-appellant, Randy Resh, seeks to reverse the judgment of the trial court, entered upon a jury's verdict, which found appellant guilty of murder and attempted rape. Appellant was sentenced to an indefinite term of fifteen years to life on the murder conviction, and an indefinite term of five to fifteen years on the conviction for attempted rape. These sentences are to run consecutively.
On August 15, 1988, at approximately 6:45 p.m., the body of Connie Nardi was found floating face down in a pond located near Rapids Road in Geauga County. An autopsy revealed that Nardi had been strangled to death. At the time her body was found, Nardi was wearing a pair of high top boots, a multicolored camouflage-type blouse and nothing else.
Geauga County authorities conducted the initial investigation of Nardi's death. After discovering that a missing person report had been filed with the Portage County Sheriff, the Geauga County investigators determined that the body found in the pond was Nardi.
The Geauga investigators learned that Nardi owned a red Toyota truck which was not found near the body. Consequently, they reported the truck stolen.
The truck was found at Ed's Upper Deck, a bar in Mantua (Portage County). Discussions with Edward Douglas, the owner of Ed's Upper Deck, disclosed that Connie Nardi had left the bar twice with Troy Busta on the night of her death. She did not return to the bar after leaving with Busta the second time.
Busta was arrested for the murder of Connie Nardi and he subsequently confessed to the crime. He also implicated the appellant and another individual, Robert Gondor.
Busta testified at trial that on the night in question he had sold cocaine to appellant, and had told appellant a lie: that he had just had sex with Nardi. Busta testified appellant had asked him (Busta) if Nardi would be willing to have sex with him (appellant). Busta stated he told appellant that Nardi was "pretty easy." Busta admitted at trial that this was a lie. Busta testified that appellant and he concocted a plan whereby Nardi might be induced into having sex with appellant.
Busta stated that he had bought a "split six" of beer three Coronas and three Pabsts. He and Nardi, pursuant to the plan, rode the motorcycle that Busta was using down to the washed out bridge on Allyn Road. Busta testified that appellant and Gondor had shown up and that appellant had requested Nardi to have sex with him. When she refused, appellant purportedly jumped on her and held her down. Busta and Gondor held her hands and feet. Nardi's shorts and underpants were removed, but she continued to struggle to get away. Busta testified that appellant struck Nardi one the sides of her face, then choked her to death.
Busta alleged that the three of them then put Nardi's body in the back of the white pickup truck Gondor was driving, and appellant and Gondor then drove to the parking lot near the Rapids Road pond where the body was found. Busta followed after them on the motorcycle. After they dumped Nardi's body in the pond, Busta separated from appellant and Gondor, and proceeded to hide Nardi's purse and the six-pack of beer. Busta then returned to Ed's Upper Deck where he again met appellant and Gondor.
Mary Ann Walters was a waitress at the Village Bar in Mantua on the night Connie Nardi was killed. She was unavailable to testify at trial, but the parties stipulated the substance of what her testimony would have been. Walters would have testified appellant and Gondor were in the Village Bar in Mantua, on the night in question. Her testimony would have been that appellant and Gondor were in the bar long enough to have a beer and a couple of shots, and that they were boisterous. She also would have testified that they came into the bar a couple of weeks after the night in question and asked her if she remembered them being in the bar on the night in question. At first she did not; later she recollected that they had, in fact, been in the bar on the night in question.
Busta, Gondor and appellant later stood in the parking lot of Ed's Upper Deck and threw pieces of wood at a bar across the street. Busta testified that the wood (scrap pieces of two by four) had blood on it. Appellant denied this.
After the Upper Deck closed, appellant and Gondor followed Busta to his residence in the white pickup truck.
Appellant and Gondor, in separate interviews conducted a few days after the night of the incident, both stated they remembered following Busta home that night. At trial, however, appellant testified he did not follow Busta home on the night in question. Appellant's explanation for this discrepancy was that he had spoken to Joey Moore (appellant's brother's brother-in-law) shortly before talking to the police. Moore, who lived with Busta, told appellant that he (appellant) and Gondor had followed Busta home. At trial, appellant testified that he did not remember, at the time of the interview with the police, what had occurred on the night in question, so he told them what Joey Moore had told them: that he and Gondor followed Busta home.
At 12:42 a.m. on the night in question, appellant ordered a large, sixteen inch, thick crust pepperoni pizza from the Domino's Pizza in Streetsboro. The receipt for this transaction was produced at trial.
On the fifteenth of August, the day Connie Nardi's body was discovered, the owner of the Streetsboro Domino's Pizza received a telephone call from a person who stuttered (it was established earlier at trial that Robert Gondor stuttered). As a result of the phone call, the owner placed the name Robert Gondor on the receipt for the pizza which had been ordered the night before.
The investigation subsequently tracked down the white pickup truck which Gondor was driving on the night in question. An analysis of the black plastic bedliner of the truck revealed the existence of human blood near the tailgate of the truck on the passenger side. There was not a sufficient sample to determine what the blood type of the sample was.
Nine days after he was sentenced by the trial court, appellant filed a motion for new trial. He alleged, without specificity, each of the grounds found in Crim.R. 33(A). A hearing was held on the motion on October 9, 1990. The motion was overruled October Il, 1990, and appellant's notice of appeal was filed November 2, 1990.
Appellant now assigns the following errors:
Appellant's first assignment of error challenges the trial court's failure to give a special instruction to the jury.
R.C. 2923.03(D) states:
The parties agree, however, that in order for the appellant to prevail on this issue, the omission of the jury instruction must rise to the level of plain error. This is true because appellant's trial counsel neither objected to the court's jury instructions, nor did he request the court to give the statutory instruction.
Crim.R. 30(A) states, in part:
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