State v. Nolan
2013 Ohio 2829
Ohio Ct. App.2013Background
- Early-morning Nov. 15, 2011: altercation in an apartment complex yard in Kent, Ohio between defendant Bobby D. Nolan and victim Travis McPeak; Nolan fired a gun and McPeak was shot through the left thigh but survived.
- McPeak and an eyewitness (Joshua Tipton) testified the gun was fired in McPeak’s direction; Nolan testified he fired downward to intimidate and did not aim at vital areas.
- Police never recovered the firearm; Tipton testified Nolan threw it in a lake.
- Indictment: two counts of attempted murder (one alleging purposeful attempt, one alleging felony-murder theory), one count of felonious assault (deadly weapon), and a firearms-while-under-disability charge.
- At trial the state produced a larger hospital-record packet on day one; court excluded the packet from evidence for late disclosure but allowed the treating surgeon to review it before testifying.
- Jury verdict: not guilty on the purposeful attempted-murder count; guilty on attempted felony-murder (the felony theory), felonious assault, and firearms-under-disability; trial court merged allied counts and sentenced Nolan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Late disclosure of hospital records (Crim.R.16) | State: nondisclosure was inadvertent; court’s remedy was adequate | Nolan: allowing doctor to review records let state effectively use late evidence; prejudiced defense | Court: nondisclosure was not willful and defendant was not prejudiced; exclusion of records + doctor testimony was not reversible error |
| Continuance / ineffective assistance for not requesting one | State: no prejudice; even with more time outcome would be same | Nolan: counsel should have sought continuance to retain expert to rebut hospital-records-based testimony | Court: no prejudice shown; outcome wouldn’t have changed because jury acquitted on purposeful attempt and felonious assault requires only knowingly |
| Manifest weight of evidence (guilt for felonious assault) | State: evidence satisfies "knowingly" — firing toward victim made harm probable | Nolan: firing downward shows recklessness/negligence, not knowing conduct causing harm | Court: substantial evidence supported that firing in McPeak’s direction while a few feet apart made physical harm probable; verdict not against manifest weight |
| Legality of "attempted felony murder" conviction | State: relies on precedent upholding attempted felony-murder convictions | Nolan: felony-murder requires a death; cannot logically attempt an unintended death — count invalid | Court: attempted felony murder is a legal impossibility under Ohio law; Hendrix rationale controls; attempted felony-murder count plain error and must be dismissed |
Key Cases Cited
- State v. Joseph, 73 Ohio St.3d 450 (Ohio 1995) (three-part test for Crim.R.16 prosecutorial violations)
- State v. Williams, 124 Ohio St.3d 381 (Ohio 2010) (addressed merger/allied-offense issues involving attempted felony murder; did not decide viability of attempted felony murder)
- State v. Moore, 218 Ariz. 534 (Ariz. Ct. App. 2008) (surveyed authority holding attempted felony murder is not a cognizable crime)