STATE OF OHIO v. TIMOTHY JONES
C.A. CASE NO. 2012 CA 61
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
November 1st, 2013
[Cite as State v. Jones, 2013-Ohio-4820.]
T.C. NO. 12CR55 (Criminal appeal from Common Pleas Court)
Rendered on the 1st day of November, 2013.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Timothy Jones appeals his conviction for two counts of aggravated murder, in violation of
{¶ 2} The incident which forms the basis of the instant appeal occurred on October 16, 2011, while Jones was engaged in an argument with one of the victims, Dovon Williams. The other victim was Arbrie Smith, a friend of Williams, who witnessed the argument. The confrontation occurred at a residence near the corner of Perrin Avenue and Center Boulevard in Springfield, Ohio. Evidence adduced during Jones’ trial established that Williams had beaten up the appellant on two separate prior occasions. Jones was also aware that Williams had been visiting his girlfriend‘s home when he was not present. At some point during the argument, Jones pulled out a handgun and shot Arbrie Smith in the head multiple times, killing him. Williams attempted to run away, but Jones chased him down and shot him several times, killing him as well.
{¶ 3} On January 23, 2012, Jones was subsequently indicted for two counts of aggravated murder with firearm specifications, and one count having a weapon while under disability. At his arraignment on February 13, 2012, Jones pled not guilty to the charges against him, and the trial court set his bond at $1,000,000.00. On May 15, 2012, the trial court ordered Jones to undergo a mental competency evaluation in light of his request to
{¶ 4} Jones’ trial began on July 30, 2012, and ended on August 3, 2012, with the jury finding Jones guilty on all of the counts in the indictment. On August 9, 2012, Jones was sentenced to life in prison without the possibility of parole on each of the aggravated murder counts and three years on the single count of weapons under disability. The trial court ordered the sentences for the aggravated murder counts to run consecutive to each other and the sentence for the weapon under disability count to run concurrent to the life sentences.
{¶ 5} It is from this judgment that Jones now appeals.
{¶ 6} Jones’ first assignment of error is as follows:
{¶ 7} “THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD FIND MR. JONES GUILTY OF AGGRAVATED MURDER IF THE ‘GIST OF THE OFFENSE’ WAS TO CAUSE A DEATH, ‘REGARDLESS OF WHAT [MR. JONES] MAY HAVE INTENDED TO ACCOMPLISH BY HIS CONDUCT.‘”
{¶ 8} In his first assignment, Jones contends that the trial court erred when it instructed the jury regarding the definition of “purpose” as it applied to the charges for aggravated murder. Specifically, Jones argues that the trial court‘s use of the “gist of the offense” instruction in a conviction for aggravated murder was confusing and rose to the level of plain error.
{¶ 9} In State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio-1906, this court stated:
{¶ 10} “‘A criminal defendant has the right to expect that the trial court will give complete jury instructions on all issues raised by the evidence.’ State v. Williford (1990), 49 Ohio St.3d 247, 251, 551 N.E.2d 1279; State v. Mullins, Montgomery App. No. 22301, 2008-Ohio-2892, ¶ 9. As a corollary, a court should not give an instruction unless it is specifically applicable to the facts in the case. State v. Fritz, 163 Ohio App.3d 276, 837 N.E.2d 823, 2005-Ohio-4736, ¶ 19. The decision to give a requested jury instruction is a matter left to the sound discretion of the trial court, and the court‘s decision will not be disturbed on appeal absent an abuse of discretion. State v. Davis, Montgomery App. No. 21904, 2007-Ohio-6680, ¶ 14.”
{¶ 11} “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 12} A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result. AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
A person acts purposely when it is his specific intention to cause a certain result. It must be established beyond a reasonable doubt that at the time in question there was present in the mind of the defendant a specific intention to cause the death of Dovon Williams.1
When the gist of the offense is a prohibition against conduct of a certain nature, a person acts purposely if his specific intention was to engage in conduct of that nature, regardless of what he may have intended to accomplish by his conduct.
Purpose is a decision in the mind to do an act with a conscious objective of producing a specific result or engaging in specific conduct. To do an act purposely is to do it intentionally and not accidentally.
Purpose and intent mean the same thing. The purpose with which a person does an act is known only to himself unless he expresses it to others or indicates it by his conduct.
The purpose with which a person does an act is determined from the manner in which it is done, the means used, and all the other facts and circumstances in evidence.
If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause his death may be, but is not required to be, inferred from the use of the weapon. The inference, if made, is not conclusive.
***
Prior calculation and design means that the purpose to cause the death of another was reached by a definite process of reasoning in advance of the homicide, which process of reasoning must have included a mental plan involving studied consideration of the method and means with which to cause the death.
To constitute prior calculation there must have been sufficient time and opportunity for the planning of an act of homicide and the circumstances surrounding the homicide must show scheme designed to carry out the calculated decision to cause the death.
{¶ 14} Initially, we note that Jones failed to object to the jury instruction, nor did he request another instruction be substituted in its place. Thus, for purposes of appellate review, Jones has waived all but plain error. State v. Parrish, 2d Dist. Montgomery No. 21206, 2006-Ohio-4161. Plain error may be noticed if a manifest injustice is demonstrated.
{¶ 16} Like the Wilson Court, we acknowledge that when read in isolation, the “gist of the offense” language could be confusing and misleading to a jury.2 When read in
{¶ 17} Jones’ first assignment of error is overruled.
{¶ 18} Jones’ second assignment of error is as follows:
{¶ 19} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING SENTENCES OF LIFE WITHOUT PAROLE.”
{¶ 20} In his second assignment, Jones argues that the trial court erred when it sentenced him to life imprisonment without the possibility of parole for each count of aggravated murder.
{¶ 21} Appellant was sentenced to life without the possibility of parole pursuant to
(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of
section 2929.04 of the Revised Code , then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose sentence on the offender as follows:(1) Except as provided in division (A)(2) of this section, the trial court shall
impose one of the following sentences on the offender: (a) Life imprisonment without parole. ***.
{¶ 22}
{¶ 23} Neither Jones nor the State of Ohio discussed the applicability of
{¶ 24} The State argues that both
{¶ 25} The Court of Appeals for the 8th District discussed the longstanding history of treating aggravated murder sentencing differently from other felony sentencing in concluding that a sentence of life imprisonment without parole imposed by a three-judge panel pursuant to
The General Assembly‘s practice of treating sentencing for aggravated murder and murder convictions differently from other felonies is longstanding. Before the 1996 Senate Bill 2 felony sentencing amendments, the courts likewise held that the general felony sentencing requirements did not apply in aggravated murder cases. (Citations omitted). Defendant has shown nothing to indicate that the General Assembly intended to change this well-established sentencing practice and the comprehensive sentencing scheme in aggravated murder and murder cases.
State v. Hollingsworth, 143 Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).
{¶ 27} Jones’ third assignment of error is as follows:
{¶ 28} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE FINDINGS REQUIRED BY
{¶ 29} In his third assignment of error, Jones contends that the trial court erred when it failed to make the required findings in order to impose consecutive sentences and that the record does not support the imposition of consecutive sentences.
{¶ 30} Prior to H.B. 86,
{¶ 31} With H.B. 86, Ohio‘s sentencing scheme again requires judicial fact-finding
{¶ 32}
{¶ 33}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for
any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 34} In its brief, the State concedes that the trial court failed to make the requisite findings pursuant to
{¶ 35} Jones’ third assignment of error is sustained in part.3
{¶ 36} Jones’ fourth and final assignment of error is as follows:
{¶ 37} “THE TRIAL COURT ERRED BY IMPOSING APPOINTED COUNSEL FEES AND COURT COSTS.”
{¶ 38} In his final assignment, Jones argues that the trial court erred when it failed to impose court costs and attorney fees at the sentencing hearing, yet did so in the judgment entry of conviction. The State concedes that it was error for the trial court to fail to orally notify Jones at the sentencing hearing that it was imposing court costs and attorney fees.
{¶ 39} Jones’ fourth and final assignment of is sustained.
{¶ 40} In light of our disposition with respect to Jones’ third and fourth assignments of error, the trial court‘s judgment is reversed, in part, and this matter is remanded to the trial court for proceedings consistent with this opinion. In all other respects, the judgment of the trial court is affirmed.
. . . . . . . . . . .
WELBAUM, J., concurs.
FROELICH, J., dissenting in part and concurring in judgment:
{¶ 41} The certified conflict question presented in Porterfield was “Whether the language of
{¶ 42} Similarly, in Hollingsworth, the defendant was sentenced pursuant to a plea bargain in which the parties agreed that the defendant would not be sentenced to the maximum (death) or the minimum (life imprisonment with parole eligibility after twenty-five full years). He appealed that his sentence of life imprisonment without the eligibility for parole was “contrary to Ohio law and violates
{¶ 43}
{¶ 44} I would find that we do have the authority to review the appeal of the aggravated murder sentence, but otherwise concur in the opinion of the majority.
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Copies mailed to:
Lisa M. Fannin
Stephen P. Hardwick
Hon. Douglas M. Rastatter