State v. Vincent Dickerson
| Decision Date | 13 August 1986 |
| Docket Number | 1277,86-LW-1898 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Vincent DICKERSON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Herman A. Carson, J. Michael Westfall, Athens, for appellant.
Michael Ward, Athens, for appellee.
OPINION & JUDGMENT ENTRY
This is an appeal from two Athens County Common Pleas Court judgments rendered after appellant's two aggravated murder trials ended in hung juries on April 3, 1985, and June 26, 1985. Appellant appeals the court's June 27, 1985 judgment entry which granted the state's motion to dismiss the case without prejudice. Appellant also appeals a July 16, 1985, judgment entry in which the court did not grant his motion for acquittal.
The state contends appellant murdered Robert Keels shortly after midnight on December 22, 1984. A witness testified she last saw Keels alive at midnight in the company of appellant and Sherry Waters at Waters' trailer in Athens County. Keels' body was found the next day in a secluded area of Hocking County.
When first questioned by law enforcement officers, appellant and Waters denied any involvement in the murder. After talking to a friend, Waters voluntarily went to the Athens County Sheriff's Office and explained appellant fired a 20 gauge shotgun into Keels' body after an argument. Waters explained she helped appellant move the body into the back of her car and drive it to the secluded area in Hocking County. Waters testified appellant fired a second shotgun blast into the body before leaving the body at the scene. Expert testimony revealed Keels was shot twice with a 20 gauge shotgun.
Law enforcement officers testified concerning inconsistent statements made by appellant during the course of the investigation into Keels' murder. Various other witnesses provided circumstantial evidence of appellant's efforts to conceal his involvement with the murder.
We affirm.
Appellant relies upon R.C. 2923.03(D) which prohibits convictions based solely upon the uncorroborated testimony of an accomplice. In State v. Pearson (1980), 62 Ohio St.2d 291, the court wrote:
"In order for the prosecution to satisfy the corroboration requirement of R.C. 2923.03(D), independent evidence must support an accomplice's testimony, and must tend to connect the accused to the alleged crime or must tend to identify the accused as a guilty actor." (paragraph two of the syllabus)
When ruling on appellant's motion for acquittal, the trial court found Waters to be an accomplice. Appellant contends the court should have granted the motion because no independent evidence supports Waters' testimony and no independent evidence tends to connect appellant to the crime. We disagree.
Although Bureau of Criminal Investigation employees testified they examined blood, firearm, and fingerprint evidence and found no direct evidence linking appellant to the murder, we have reviewed the record below and find circumstantial evidence linking appellant to the crime. The bulk of the circumstantial evidence comes from inconsistent taped statements appellant gave law enforcement officers on December 24, 1984, and December 30, 1984.
When questioned on December 24, 1984, appellant lied about the type of shotgun which was present in Waters' trailer on the night of the crime. Although a witness testified appellant had a 20 gauge shotgun on the night in question and another witness testified appellant had 20 gauge shotgun pellets in his possession on that day, appellant told law enforcement officers he had a 12 gauge shotgun on that night.
On December 30, 1984, however, appellant admitted he purchased the 12 gauge shotgun with Waters a day and a half after the murder. The clerk who sold appellant and Waters the 12 gauge shotgun testified the check used to purchase the gun was written December 23, 1984, but dated December 20, 1984.
When asked on December 24, 1984, whether he owned any weapons other than the 12 gauge shotgun, appellant said he did not. On December 30, 1984, however, appellant admitted he owns a 20 gauge shotgun which was given to him as a child. Appellant explained the 20 gauge shotgun was not present in Waters' trailer until the day after the murder. Appellant also explained the 20 gauge shotgun was stolen from the trailer about a day later by the father of Waters' younger son. Appellant, however, never reported the alleged theft.
In Cincinnati v. Robben (1982), 8 Ohio App.3d 203, the court wrote:
"A trial court shall not overrule a motion for acquittal made pursuant to Crim.R. 29(A) when, viewing the evidence in a light most favorable to the government, a reasonable mind could not fairly find each element of the offense charged beyond a reasonable doubt." (paragraph one of the syllabus)
We believe a reasonable mind could fairly find each element of aggravated murder in the case at bar beyond a reasonable doubt. We thus conclude the court properly declined to grant appellant's motion for acquittal.
Appellant's first assignment of error is overruled.
"THE TRIAL COURT ERRED IN FAILING TO RULE ON, AND GRANT, APPELLANT'S MOTION FOR ACQUITTAL PRIOR TO GRANTING THE STATE'S MOTION TO NOLLE THE INDICTMENT FOR AGGRAVATED MURDER WITHOUT PREJUDICE."
Appellant fails to cite any authority which would require a trial court to rule on a motion for acquittal before ruling on a motion by the state to dismiss the indictment without prejudice. We note Crim.R. 29(B) expressly permits the court to reserve judgment on a motion for acquittal made at the close of all the evidence. The rule also permits the court to rule on the motion for acquittal after the jury is discharged. In the case at bar the court entered judgment on the motion for acquittal after giving both parties an opportunity to file memoranda for and against the motion. We find no error.
Appellant's second assignment of error is overruled.
For the reasons stated under the first assignment of error, we believe a reasonable mind could fairly find each element of aggravated murder in the case at bar beyond a reasonable doubt. We thus find no merit to appellant's contention regarding his motion for acquittal. We must, however, examine appellant's contention the court erred by failing to dismiss the aggravated murder charge with prejudice.
We note at the onset that although appellant contends the court should have dismissed the indictment with prejudice, appellant never made such a motion. The sole motion appellant made after the jury failed to reach a verdict was his motion for acquittal.
We also note appellant failed to timely present the trial court with the authorities and arguments he relies in his assignment of error. Before he filed his notice of appeal on July 22, 1985, appellant mentioned neither his fundamental fairness argument, his due process argument, nor the three cases he principally relies upon in this appeal (Hawaii v. Moriwake (Hawaii 1982), 647 P.2d 705; State v. Abatti (N.J.1985), 99 N.J. 418, 493 A.2d 513; and Tennessee v. Witt (Tenn.1978), 572 S.W.2d 913.) One month after he filed his notice of appeal, however, appellant filed a motion to vacate the June 27, 1985, and July 16, 1985, judgment entries. The motion to vacate raised, for the first time, the arguments appellant now raises on appeal. We denied appellant's motion to remand the case to the lower court for consideration of his motion to vacate.
Before we consider the merits of appellant's contention concerning the trial court's failure to dismiss the case with prejudice, we must decide whether we have jurisdiction to review the court's June 27, 1985, order dismissing the case without prejudice. The Ohio Constitution provides in pertinent part:
"Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." (Emphasis Added)
R.C. 2505.02 defines final orders:
"An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special preceeding or upon summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without new trial." (Emphasis Added)
The court made the June 27, 1985, order dismissing the case without prejudice after the state so moved at the conclusion of appellant's second trial. The order thus was clearly an order made "upon summary application in an action after judgment." We must now determine whether the order dismissing the case against appellant without prejudice was an order which "affected a substantial right" of appellant. We think not. The order did not deny or abridge any right of appellant, but instead merely dismissed the indictment against him. Appellant walked out of the courtroom a free man.
When ruling on the state's motion to dismiss without prejudice, the court stated:
To continue reading
Request your trial