State v. Richard A. Bowen
| Decision Date | 08 December 1999 |
| Docket Number | 96 CO 68,99-LW-5947 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. RICHARD A. BOWEN, DEFENDANT-APPELLANT CASE |
| Court | United States Court of Appeals (Ohio) |
Criminal Appeal from Columbiana County Court of Common Pleas Columbiana County, Ohio Case No. 96 CR 85.
For Plaintiff-Appellee: Atty. Robert L. Herron, Columbiana County Prosecutor, Atty. James T. Hartford, Assistant Prosecuting Atty., 105 S. Market Street, Lisbon, Ohio 44432.
For Defendant-Appellant: Atty. R. Eric Kibler, 37 1/2 N. Park Avenue, Lisbon, Ohio 44432-1257.
Hon Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Edward A. Cox.
This appeal arises from a jury verdict convicting Appellant Richard Bowen, of two counts of attempted aggravated murder, one count of felonious sexual penetration, one count of theft and one count of forgery. For the following reasons this Court affirms the jury verdict and the sentences imposed by the trial court, overruling Appellant's assignments of error.
In May of 1996, Appellant was living in a basement room in the home of his father and step-mother, Harold and Susan Bowen, in Salem Township, Columbiana County, Ohio. Appellant was 24 years old at the time. He had spent the years 1989-1993 in the Army and moved into the Salem Township home soon after his discharge. Appellant is the natural son of Richard Bowen by a previous marriage. Also living in the home were the three minor children of Harold and Susan Bowen.
On Saturday, May 4, 1996, at approximately 9:00 a.m., Mr. and Mrs. Bowen left home with one of the children to run a series of errands. Appellant and the other two children remained at home. Appellant was spending the morning doing paperwork for the Citizen's Bank Bowling League, for which he served as secretary treasurer. He was preparing for an awards banquet scheduled for that evening during which he was to distribute the funds in the league account. The record reveals that the account was approximately $6,000.00 short on the day of the banquet. (Trial Transcript, September 16-19, 1996, pp. 545-551; hereinafter "Tr.").
After Mr. and Mrs. Bowen left the house, Appellant asked his thirteen-year-old step-brother to calculate bowling averages for his league. Appellant left the boy in the kitchen and escorted his ten-year-old step-sister upstairs to her bedroom. Appellant began questioning the girl about sexual matters and then left the room to go downstairs for a few moments.
The younger child testified that Appellant returned to her bedroom and got on his knees in front of her. He told her to give him a hug. Appellant then told her to turn around and he proceeded to place his hand in her panties and insert his fingers into her vagina. When she tried to resist, Appellant put a knife to the child's throat. She raised her hands in a defensive position, but was unable to prevent Appellant from cutting a large slash across her neck. He then stabbed her repeatedly with the knife and left the room as she lay on the floor near her bed. (Tr. pp. 635-640).
Appellant's step-brother heard his sister scream, got up from the computer where he was working and saw Appellant standing nearby. He testified that Appellant stabbed him in the leg, forehead and chin. While this was happening, the younger child crawled to the staircase and fell its entire length, to the bottom of the stairs. Appellant returned his attention to her and repeatedly stabbed her again. Appellant then went to the kitchen sink, washed off the knife, threw it into a drawer and took out another knife. He returned to his step-brother and stabbed him in the back a few times.
Appellant went to the basement and returned with a portable phone which he attempted to use and some papers which he scattered in the kitchen. He went to the basement once more and returned with a golf club. Appellant's step-brother was able to get up and run from the house while Appellant pursued him with the golf club. Appellant caught up with him and struck the boy in the head three times with the golf club, the third time with such force that the head of the club broke off. (Tr. pp. 598-609).
While the younger child was alone in the kitchen she attempted to use the phone to call for help, but it had been disabled. She testified that Appellant returned to the kitchen and began stabbing her again with a different knife while she pleaded with him to stop. At this point, Appellant left the house and drove away. The older child made his way back into the house and lay down beside his sister. Their parents returned home a few minutes later and discovered them. They were taken to Salem Community Hospital and then flown by helicopter to Akron Children's Hospital.
Dr. David Andrews of Akron Children's Hospital testified that the younger child had a total of thirteen stab wounds and the older child had fifteen stab wounds, many of them life threatening. (Tr. pp. 326-327).
After leaving the Bowen residence, Appellant went to a sporting goods store, Good Sports in East Palestine, to pick up bowling trophies. Becky Burns, the owner of Good Sports, testified that she had phoned the Bowen residence shortly after 9:15 a.m. on May 4, 1996. She testified that a man answered and told her that Appellant was not home. Appellant testified at trial that he was the person who answered the phone. (Tr. p. 729).
After leaving Good Sports, Appellant went to the Moose Lodge in East Palestine to pay for the bowling banquet. After making various other stops he ended up at the Dairy Queen in Leetonia. Nancy Weikart, an employee at the Dairy Queen, had learned that Appellant was a suspect in the attack on the Bowen children and called the police. They arrived soon afterward and took Appellant into custody.
Trial testimony revealed that Appellant was having financial difficulties and was using money from the bowling league to pay his personal debts instead of depositing it into the league's bank account. Appellant testified that he forged the name of the league president on a withdrawal slip and used the slip to withdraw money from the account. (Tr. p. 716).
On May 30, 1996, Appellant was indicted on five charges by the Columbiana County Grand Jury: two counts of attempted aggravated murder in violation of R.C. §2903.01(A) and R.C. §2923.02(A); one count of felonious sexual penetration in violation of former R.C. §2907.02(A)(3); one count of theft in violation of R.C. §2913.02(A)(2) and one count of forgery in violation of R.C. §2913.31(A)(3). Counsel was appointed for Appellant. On June 6, 1996, Appellant filed a request for a bill of particulars, which was served on Appellant on June 13, 1996. Neither the original indictment nor the bill of particulars specifically alleged that Appellant used force in the commission of count three, felonious sexual penetration.
On July 10, 1996, Appellant filed a motion for continuance, which was granted, and trial was scheduled to begin on September 16, 1996.
On September 9, 1996 Appellant filed a motion for change of venue which was later overruled, and a motion to compel production of exculpatory evidence which the court later found to be moot. A few days before trial the state filed a series of supplements to discovery informing Appellant of the names of additional witnesses expected to be called at trial.
A jury trial was held September 1619, 1996. The jury found Appellant guilty on all counts. The jury also made a specific finding that Appellant had used force in the commission of count three, felonious sexual penetration. Appellant received a sentence of 10 to 25 years on each count of attempted aggravated murder, a life sentence on count three, and 24 months and 18 months in counts four and five respectively. On October 3, 1996, Appellant filed this timely appeal.
Appellant asserts eight assignments of error. We will address these assignments out of order to avoid confusion and duplication of arguments.
Appellant's third assignment of error alleges:
"THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR CHANGE OF VENUE."
Appellant contends that prejudicial pretrial publicity contaminated the jury and prevented him from getting a fair trial. Appellant points out that many of the news stories about the crime dwelt on his fondness for a game called "Magic," even though this game was not an issue in the case. Some of the stories referred to this game as "satanic." Appellant asserts that nine out of twelve jurors admitted to having been exposed to pretrial publicity of the case. Appellant concludes that his motion for change of venue should have been granted due to the pervasive adverse pretrial publicity.
Crim.R. 18(3) provides:
"Upon the motion of any party or upon its own motion the court may transfer an action to any court having jurisdiction of the subject matter outside the county in which the trial would otherwise be held, when it appears that a fair and impartial trial cannot be held in the court in which the action is pending."
See also R.C. 2901.12(K). When reviewing a decision denying a motion for change of venue the crucial issue is, State v. Bies (1996), 74 Ohio St.3d 320, 324. Abuse of discretion, "... connotes more than an error of law or judgment, it implies an unreasonable, arbitrary or unconscionable attitude." State v. Maurer (1984), 15 Ohio St.3d 239, 250.
Before deciding a motion for change of venue, the trial court should make a good faith effort to seat a jury. Id. While the...
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