State of Ohio, Plaintiff-Appellee, v. Charles W. Loy, Jr., Defendant-Appellant.
Case No. 19CA21
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 2/08/2021
[Cite as State v. Loy, 2021-Ohio-403.]
Hess, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant Ohio Public Defender, Columbus, Ohio, for appellant.
Nicole Tipton Coil, Washington County Prosecuting Attorney, Marietta, Ohio, for appellee.
Hess, J.
{¶1} After a jury found Charles Loy, Jr., guilty of two counts of aggravated murder, murder, two counts of aggravated burglary, tampering with evidence, and firearm specifications in connection with the death of Frederick Uselton, the trial court merged several offenses for sentencing purposes and imposed an aggregate sentence of life in prison with parole eligibility after 33 years. In his first assignment of error, Loy contends that the trial court abused its discretion and violated his rights to due process and a fair trial when it refused to instruct the jury on voluntary manslaughter as an inferior-degree offense of aggravated murder and murder. Because the evidence presented at trial did not reasonably support both an acquittal on the charged offenses and a conviction on the offense of voluntary manslaughter, the trial court properly refused to instruct the jury on voluntary manslaughter. Accordingly, we overrule the first assignment of error.
{¶2} In his second assignment of error, Loy contends that his aggravated murder sentence is clearly and convincingly unsupported by the record and that we have authority to review his sentencing challenge under
I. FACTS AND PROCEDURAL HISTORY
{¶3} The Washington County grand jury indicted Loy on one count of aggravated murder in violation of
{¶4} Janet Shaw testified that she was involved with Loy for about six years and at one time considered him to be her boyfriend. However, around February 2016, she developed strong feelings for Uselton, and he became her boyfriend. For about six months, she alternated between living and sleeping with Loy and Uselton. Shaw went to
{¶5} Shaw acknowledged that she has mental health and drug issues. She told police that she was on Seroquel and Lithium for a split personality, schizophrenia, and trouble with reality. Shaw testified that she hears voices and spent three weeks in a mental ward immediately after the shooting. In the summer of 2016, she lost 50 to 60 pounds from methamphetamine use, and after the shooting, she tested positive for LSD, methamphetamine, and heroin. Shaw admitted she is a liar, manipulates men for drugs and money, and believed Loy and Uselton were in competition for her. She told police that Loy thought she was his girlfriend. Shaw admitted that when she was with Uselton, she would message Loy about how much she loved him. Shaw testified that Uselton used marijuana and tried methamphetamine once but never gave her drugs, assaulted her, molested her, or held her against her will. Shaw testified that Donna Paredes claimed to have witnessed Uselton molest Shaw during a seizure, but Shaw did not believe her.
{¶6} Ethel West testified that she lives with Elom Maine, Uselton‘s brother. On August 28, 2016, around midnight, two women were outside their apartment yelling
{¶7} Donna Paredes testified that she is friends with Shaw and Loy and knew Uselton. Around the early morning hours of August 28, 2016, Loy was worried about Shaw and asked Paredes to go to Uselton‘s home to check on her. Shaw had left Loy‘s house the previous morning and was supposed to return but never did. Paredes told police she was concerned because in the past, Shaw said that she feared Uselton, that she thought he was the devil, and that he had molested her during seizures. Paredes had also heard that Uselton was supplying Shaw with drugs. Paredes asked her sister, Amber Hendershot, to accompany her to Uselton‘s property because Paredes was not allowed there and was concerned about getting arrested for trespassing. Paredes waited in the car while Hendershot tried to get in touch with Shaw, but they ultimately left without seeing her. When Paredes and Hendershot reported back to Loy, he got mad and kicked them out of his home. Later, Paredes‘s boyfriend, Nick Boley, brought her back because Loy wanted to apologize. At some point, Loy left in his Cavalier but later asked Paredes and Boley to pick him up at the Bada Bing bar. When they did, Loy was sweaty and would not answer questions about what happened to his Cavalier.
{¶8} Police found fresh tire tracks in the grass at a location near Uselton‘s home and a cigarette butt in the roadway that had ash on the end of it. They discovered footprints between the area where the cigarette butt was found and a window in a spare room in Uselton‘s home. There were three, eight-inch high cinder blocks stacked by the window, the screen was torn, a fan had been removed from the window, and some rotted wood from the windowsill was on the ground. There were two nine-millimeter shell casings on the floor in Uselton‘s bedroom. Uselton had bullet wounds in his chest and above his right eye. Police found one bullet lodged in the bed beneath him, and a second bullet was removed from his body during an autopsy. In the vicinity of the Bada Bing bar, police located Loy‘s vehicle and found a loaded nine-millimeter Hi-Point pistol, an orange ski mask, gloves, and Loy‘s jacket on the ground inside some tires. Testing revealed that Loy‘s DNA profile was on the cigarette butt and pistol trigger, that the shell casings had been fired from the pistol, and that the bullets had characteristics consistent with bullets test-fired from the pistol. Loy‘s hands tested positive for particles characteristic of gunshot primer residue, and a search of his home resulted in the discovery of a box of nine-millimeter ammunition, a pistol holster, and a notebook containing an unfinished letter stating:
Mom and Dad
I hope that u don‘t hate for what I done. Didn‘t mean to ever hurt u guys like this but life is so messed up. Just couldn‘t deal with no more. This is easy way to deal. Having everything in life wasn‘t what it was about. I shouldn‘t let her play the game with me. I thought she wouldn‘t do that to me. Please take care of Jax and Calvin someone when bring u some money of mine so don‘t have to worry about paying for me put in ground. I know its wasn‘t not right what I did. Sorry to put u threw this I really am. Mom please take care of urself. I will be with [sic]
Loy has a son named Calvin and a dog named Jax.
{¶9} Loy testified that he knew Uselton for 20 to 25 years and Shaw for about four years. Loy and Shaw lived together in various places, including with Uselton for about six months. Around February 2016, Shaw left Loy and moved in with Uselton. During the next six months, she alternated between living with Uselton and Loy for varying amounts of time. Shaw lost a lot of weight and claimed Uselton “had her doing meth,” would not let her have a cell phone or internet, and told her there were Mexicans on the front porch who would kill her if she went outside. Shaw told Loy she thought Uselton had done sexual things to her while she was having a seizure, and one time Shaw was “all black and blue” after being at Uselton‘s home. The day before the shooting, Shaw left Loy‘s home after having spent about a week there. Paredes told Loy that Uselton had picked Shaw up, and Loy asked Paredes to check on Shaw because he was worried about her because Uselton was “known to * * * give her all those drugs and take advantage of her.” Loy did not go because he did not want to cause or get into trouble. Boley took Paredes and Hendershot to Uselton‘s house, where Boley stacked cinder blocks by a window, removed the fan, tore the screen, and entered the home to see if Shaw was there but got scared and left. After the group reported back to Loy, he went to the home around 4:00 a.m. and entered through the window because he was at “the breaking point” and “had to know what was going on.”
{¶10} Loy wore a ski mask so he “wouldn‘t be seen,” wore gloves because of “fingerprints and stuff,” and carried a loaded pistol which he did not plan to use. Once inside, Loy headed for the front door but heard something and instead opened Uselton‘s bedroom door. Uselton was lying down, Shaw was standing beside him, and they may have been talking. Uselton said, “I‘m going to shoot you.” Loy testified, “I thought he had
{¶11} The jury found Loy guilty as charged. The trial court merged the aggravated murder, murder, and aggravated burglary counts for sentencing purposes, and it sentenced Loy to life in prison with parole eligibility after 30 years for aggravated murder in violation of
{¶12} We granted Loy leave to file a delayed appeal.
II. ASSIGNMENTS OF ERROR
{¶13} Loy assigns the following errors for our review:
- The trial court abused its discretion and violated Charles Loy‘s rights to due process and a fair trial when it denied his request to instruct the jury on voluntary manslaughter.
- Charles Loy‘s aggravated murder sentence is clearly and convincingly unsupported by the record, and Ohio‘s purported appellate prohibition was neither intended by the General Assembly, nor is it constitutional.
III. JURY INSTRUCTIONS
{¶14} In the first assignment of error, Loy contends that the trial court abused its discretion and violated his rights to due process and a fair trial when it denied his request for a jury instruction on voluntary manslaughter as an inferior-degree offense of aggravated murder and murder. Loy maintains that “Ohio law has generally recognized that romantic relations between men and women can be a reasonable source of both sudden passion and rage, and serious provocation.” Loy asserts that Shaw manipulated Uselton and him into being at odds with each other and that his testimony and note show that he had “reached his breaking point” when he found Uselton in bed with Shaw and killed him.
{¶15} We review a trial court‘s refusal to instruct a jury on voluntary manslaughter for an abuse of discretion. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 152. The phrase “abuse of discretion” implies that the decision was “unreasonable, arbitrary, or unconscionable.” Id. at ¶ 91.
{¶16} ” ‘A trial court has broad discretion to decide how to fashion jury instructions, but it must “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” ’ ”
{¶17} “When the indictment * * * charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof * * * .”
{¶18} A person is guilty of voluntary manslaughter if the person knowingly causes the death of another “while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that
{¶19} Before instructing the jury on voluntary manslaughter as an inferior-degree offense, the trial court must conduct an inquiry into the mitigating circumstances of provocation which “must be broken down into both objective and subjective components.” Shane at 634. The court “must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction.” Id. at paragraph one of the syllabus. An objective standard applies to this inquiry: “For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.” Id. at 634-635. The trial court “should evaluate the evidence in the light most favorable to the defendant, without weighing the persuasiveness of the evidence.” Id. at 637. If the objective standard is met, “the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.” Id. at 634. At that point, the court must consider the ” ‘emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time.’ ” Id., quoting Deem at paragraph five of the syllabus.
{¶20} The totality of the evidence in this case, when viewed in a light most favorable to Loy, did not reasonably support both an acquittal on the charged offenses of aggravated murder and murder and a conviction on the inferior-degree offense of voluntary manslaughter. Some of Loy‘s testimony suggests that he shot Uselton out of fear for his own safety because Uselton supposedly threatened to shoot him and moved
{¶21} Loy‘s suggestion that reasonably sufficient provocation existed because he found Uselton and Shaw in bed together is not well-taken. Loy was aware of Shaw‘s relationship with Uselton for about six months prior to the shooting, believed Shaw was at Uselton‘s home, covertly entered the home during the early morning hours while carrying a loaded gun, and went to Uselton‘s bedroom. Under these circumstances, no
{¶22} The record does not contain evidence of serious provocation occasioned by the victim that was reasonably sufficient to incite the use of deadly force. Because no reasonable jury could have found Loy not guilty of aggravated murder and murder but guilty of voluntary manslaughter, the trial court did not err when it refused to instruct the jury on voluntary manslaughter. Accordingly, we overrule the first assignment of error.
IV. AGGRAVATED MURDER SENTENCE
{¶23} In the second assignment of error, Loy challenges his aggravated murder sentence. Loy maintains that
{¶24}
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶25} In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21, the Supreme Court of Ohio stated that ”
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{¶26} In State v. Jones, Slip Opinion No. 2020-Ohio-6729 (“Jones IV“), the Supreme Court of Ohio recently revisited this statement. Jones IV involved an appeal from State v. Jones, 2018-Ohio-498, 105 N.E.3d 702 (“Jones III“), the third decision the Eighth District Court of Appeals issued in connection with the criminal appeals of Randy and Carissa Jones. Jones IV at ¶ 11. In Jones III, a majority of the judges of the Eighth District, sitting en banc, joined the holding in the lead opinion that Marcum “interpreted
{¶27} In resolving the appeal, the Supreme Court initially addressed the en banc court‘s holding that
{¶28} Next, the Supreme Court considered the lead opinion‘s suggestion “that an appellate court may review whether the record supports the sentence as a whole under
{¶29} Finally, the Supreme Court considered “whether the judgments of the merits panel vacating the Joneses’ sentences might nonetheless be justified under
Nothing in
R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance withR.C. 2929.11 and2929.12 . In particular,R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct underR.C. 2929.05(A) when reviewing a death penalty-sentence. See State v. Hundley, ___ Ohio St.3d ___, 2020-Ohio-3775, ___ N.E.3d ___, ¶ 128 (recognizing thatR.C. 2929.05(A) requires de novo review of findings and other issues within its scope).
Id. at ¶ 42. Therefore, the court held that the merits panel had “erred in the same way the lead opinion did” and that its “ultimate judgments were erroneous.” Id. The court reversed the Eighth District‘s judgments and reinstated the sentences imposed by the trial court. Id. at ¶ 43.
{¶30} Based on Jones IV, we conclude that it is not necessary for us to address Loy‘s arguments regarding
{¶31} Even if we could consider Loy‘s claim that his sentence is clearly and convincingly unsupported by the record, we would conclude it lacks merit. Initially, Loy challenges the trial court‘s finding that
{¶32} Loy also challenges the trial court‘s finding that no factors were present that made his conduct less serious than conduct normally constituting the offense. Loy maintains that
{¶33} Next, Loy asserts that the trial court erred when it addressed
{¶34} Based on the trial court‘s statements at the sentencing hearing, its omission of the word “genuine” from its finding in the sentencing entry that Loy showed “no remorse” appears to be a clerical error. Moreover, the trial court was free to conclude that Loy‘s apologies were not sincere, particularly in light of his trial testimony suggesting that Uselton‘s supposed mistreatment of Shaw and threat to Loy led to the shooting. “The trial court is in a much better position than us to observe appellant, his voice inflections and demeanor and use those observations in weighing the credibility of his expressed remorse.” State v. Hudnall, 4th Dist. Lawrence No. 04CA3, 2004-Ohio-5369, ¶ 17.
{¶35} Next, Loy asserts that the trial court erred when it found that no factors were present that indicated he was not likely to commit future crimes. He maintains that
{¶36} Finally, Loy appears to suggest that the record does not clearly and convincingly support his aggravated murder sentence as a whole under
{¶37} For the foregoing reasons, we overrule the second assignment of error.
V. CONCLUSION
{¶38} Having overruled the assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.