State v. Trewartha

• Decision Date: 27 October 2005
• Docket Number: No. 04AP-963.,04AP-963.
• Citation: 844 N.E.2d 1218,2005 Ohio 5697,165 Ohio App.3d 91
• Parties: The STATE of Ohio, Appellee, v. TREWARTHA, Appellant.
• Court: Ohio Court of Appeals

844 N.E.2d 1218

165 Ohio App.3d 91

2005-Ohio-5697

The STATE of Ohio, Appellee, v. TREWARTHA, Appellant.

No. 04AP-963.

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

Decided October 27, 2005.

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Ron O'Brien, Franklin County Prosecuting Attorney, and Richard Termuhlen II, Assistant Prosecuting Attorney, for appellee.

W. Joseph Edwards, for appellant.

BRYANT, Judge.

{¶ 1} Defendant-appellant, Kevan M. Trewartha, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to a jury verdict, of aggravated murder committed during an aggravated robbery in violation of R.C. 2903.01, with the capital specification of prior calculation and design under R.C. 2929.04(A)(7). Because the evidence supports the jury's finding that defendant violated R.C. 2903.01, but does not support a violation of R.C. 2929.04(A)(7), we affirm in part and reverse in part.

{¶ 2} By indictment filed March 14, 2003, defendant was charged with seven counts, each with a firearm specification: two counts of aggravated murder with capital specifications, aggravated robbery, two counts of robbery, tampering with evidence, and possession of a deadly weapon while under a disability. Relevant to this appeal, count one charged defendant with aggravated murder committed while in the course of an aggravated robbery with an R.C. 2929.04(A)(7) capital specification asserting that defendant was either the principal offender in the aggravated murder or defendant committed the aggravated murder with prior calculation and design. The second count charged defendant with aggravated murder committed with prior calculation and design and included the same capital specification as the first count.

{¶ 3} Defendant's indictment arose out of events occurring on Sunday, February 23 and the early morning hours of Monday, February 24, 2003. According to the state's evidence, at around 3:00 p.m. on Sunday, James Stephens picked up defendant, and the two cruised their Whitehall neighborhood in Stephens's new Chevy Blazer, drinking beer and taking the prescription drug Xanex. The two soon stopped at the house of defendant's girlfriend. Defendant went into the house, also his residence at the time, and emerged with a .38 Taurus revolver he had acquired two days earlier from a friend, Anthony Marinello.

{¶ 4} After showing the revolver to Stephens, defendant got back in Stephens's car and they drove to Corey Leggett's house, arriving around 4:00 p.m. Leggett accompanied defendant and Stephens for a quick ride. While driving around the neighborhood, Leggett pointed out the home of Herbert Dingess, and the three conversed about a mutual acquaintance who regularly broke into Dingess's house to steal "weed and stuff." After five or ten minutes, Stephens and defendant dropped off Leggett at his girlfriend's house.

{¶ 5} At approximately 9:00 or 10:00 p.m., Stephens and defendant, both visibly drunk, arrived at the house of Christa Cooper and her roommate, Nina Maestle. Around 12:00 a.m., when Cooper asked Stephens to leave because of his rowdy behavior, defendant accompanied Stephens out to his Blazer. Immediately before defendant's departure from Cooper's house, Maestle saw that defendant had the.38 Taurus revolver.

{¶ 6} Stephens testified that once he and defendant were in the Blazer, defendant asked Stephens if he "could give crazy Kev a ride." From Cooper's house, Stephens and defendant went directly to Dingess's house. Sometime shortly before the arrival of Stephens and defendant, two of Dingess's friends, Venus Chandler and Chris Hershey, left Dingess's house for the night.

{¶ 7} According to Stephens, upon arriving at Dingess's house, defendant walked directly to the front door. Before Stephens reached the house, and while defendant, was in the house, Stephens heard someone inside yell and then heard a gunshot. Stephens hurried into the house and found Dingess lying on the floor with a gunshot wound to his face. Not seeing defendant, but hearing him move through the house, Stephens walked around to the back bedroom and waited for defendant. After defendant left the bedroom, he and Stephens left Dingess's house and sped away from the scene in Stephens's Blazer.

{¶ 8} Moments after leaving Dingess's house, Stephens wrecked his Blazer on a nearby telephone pole. A witness heard the crash and looked out the window; he saw defendant pull a gun out of his pants and bury it in the snow. Defendant subsequently removed the gun from the location, and two witnesses saw defendant later deposit the gun near a speed limit sign. Officer Scott Miller recovered Marinello's .38 Taurus revolver from the second location, and he also recovered a gold chain at the scene of the accident. Chandler later identified the gold chain as the one Dingess was wearing the night he died.

{¶ 9} Stephens and defendant fled the accident scene but soon were apprehended. From defendant the police recovered Dingess's money clip containing the same amount of money last known to be in Dingess's possession. Later that afternoon, on Monday, February 24, 2003, an acquaintance arrived at Dingess's house to find the victim's body lying just inside the doorway. The acquaintance called the paramedics, but Dingess was pronounced dead upon their arrival. An autopsy revealed that Dingess died almost immediately from the brain trauma caused by a single gunshot wound to his head.

{¶ 10} The jury found defendant guilty of aggravated murder in the course of an aggravated robbery. In addressing the capital specifications to that count, the jury concluded that defendant was not the principal offender, but that he had committed aggravated murder with prior calculation and design during the commission of an aggravated robbery with a firearm. The jury also found defendant guilty of aggravated robbery and tampering with evidence, each with a firearm specification, and possessing a weapon while under a disability. The jury was not instructed on the lesser robbery offenses, and defendant was acquitted of the second charge of aggravated murder that alleged that defendant acted with prior calculation and design.

{¶ 11} After a mitigation hearing, the court imposed the jury-recommended sentence of 30 years to life for the aggravated murder charge of which defendant was found guilty. The court also sentenced defendant to a three-year term for the firearm specification, a nine-year term for aggravated robbery, a three-year term for tampering with evidence, a one-year term for the firearm specification offense, and an 11-month term for having a weapon while under a disability, all to be served consecutively. Defendant appeals and assigns a single error:

The trial court erred when it entered judgment against the defendant when the evidence was insufficient to sustain a conviction and was not supported by the manifest weight of the evidence.

{¶ 12} Although defendant's assignment of error is worded broadly, defendant's argument in support is directed to whether the sufficiency and manifest weight of the evidence support the jury's finding defendant guilty of the capital specification of prior calculation and design under R.C. 2929.04(A)(7). Sufficiency of the evidence inquires "`whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" State v. Goodwin (1999), 84 Ohio St.3d 331, 343-344, 703 N.E.2d 1251, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The verdict will not be disturbed unless it is determined that reasonable minds could not have reached the conclusion the trier of fact reached. Goodwin, 84 Ohio St.3d at 344, 703 N.E.2d 1251.

{¶ 13} When presented with a manifest-weight challenge, the appellate court engages in a limited weighing of the evidence to determine whether sufficient competent, credible evidence permits reasonable minds to find guilt beyond a reasonable doubt. State v. Conley (Dec. 16, 1993), Franklin App. No. 93AP-387, 1993 WL 524917. To make the determination, the court reviews the entire record as the "thirteenth juror" and decides whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

{¶ 14} Preliminarily, we note that the jury returned inconsistent verdicts: the jury found defendant guilty on one count of aggravated murder with a capital specification of prior calculation and design, but not guilty of a second count alleging aggravated murder with prior calculation and design. Defendant suggests that the jury's inconsistent verdicts shore up his argument that insufficient evidence supports the capital specification. While the jury's verdicts appear wholly inconsistent on the element of prior calculation and design, the discrepancy alone is not grounds for setting aside the verdict on the capital specification.

{¶ 15} Consistency between verdicts on several counts of an indictment is unnecessary where the defendant is convicted on one or some counts and acquitted on others; the conviction generally will be upheld irrespective of its rational incompatibility with the acquittal. State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, vacated in part on other grounds, 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. Each count of a multi-count indictment is deemed distinct and independent of all other counts, and thus inconsistent verdicts on different counts do not justify overturning a verdict of guilt. See State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030; State v. Brown (1984), 12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889, paragraph one of the syllabus; State v. Washington (1998), 126 Ohio App.3d 264, 276, 710 N.E.2d 307. "[T]he sanctity of the...