State v. RowserState v. Rowser
For Plaintiff-Appellee
JOHN D. FERRERO
Prosecuting Attorney
Stark County, Ohio
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
For Defendant-Appellant
ANTHONY KOUKOTAS
116 Cleveland Avenue, N.W.
808 Courtyard Center
Canton, Ohio 44702
Edwards, P.J.
{¶1} Appellant, Lucius M. Rowser, appeals a judgment of the Stark County Common Pleas Court convicting him of having weapons while under disability (
STATEMENT OF FACTS AND CASE
{¶2} On May 29, 2009, Lora Matyas appeared at the Aultman Hospital emergency room complaining of jaw pain from a bullet lodged in the lower cavity of her mоuth. She reported that appellant, who was her boyfriend, shot her in the face when they were smoking crack and beat her. Dr. Teresa Wurst examined Matyas and noted that Matyas had a one-inch scar on her left upper lip and her jaw was so swollen she could barely open her mouth an inch. A CAT scan revealed a bullet lodged in the muscle on the inside of her jaw. Metal fragments were lodged in her tongue, she had broken teeth, and the area around the bullet was infеcted. Matyas had surgery to remove the bullet.
{¶3} Dr. Wurst also discovered that Matyas could not bend her left arm. X-rays revealed that the tip of the bone in her forearm had been snapped off. Because of calcium deposits in the bone, Dr. Wurst determined the bone had been broken at least three weeks earlier. Matyas reported that the injury occurred when appellant twisted her arm behind her. Surgery was not an option and Matyas would have permanent stiffness and pain in her elbow.
{¶4} Finally, Wurst discovered bruising and swelling on Matyas’ ankle and leg. X-rays revealed a small chip fracture in the shin bone consistent with blunt force
{¶5} Canton Police obtained a search warrant for appellant‘s home on Third Street, S.,E., in Canton. At 5:00 p.m. on June 2, 2009, the SWAT team arrived at appellant‘s home to execute the warrant. When аppellant failed to come out of the residence after police announced their arrival, police broke out the front window. They found appellant walking naked through the dining room and living room area of the homе. He was arrested and taken to the police station while police searched his home.
{¶6} Det. Kevin Clary confiscated a .32 caliber revolver with one round of live ammunition and a spent casing, indicating that it had been fired one time. The hammer on the revolver was back, ready to fire. The gun was swabbed for DNA. Officers also found a hammer which was swabbed for DNA. A tooth, later identified as belonging to Matyas, was found in a porcelain keepsake box.
{¶7} Michael Short, a firearms expert, examined the weapon and deemed it to be operable. Short also identified the deformed bullet taken from Matyas’ jaw as one fired from the revolver found in appellant‘s couch. DNA testing identified appellant as the source of DNA found on the revolver to a reasonable degree of medical certainty.
{¶8} Appellant was indicted by the Stark County Grand Jury on July 6, 2009, with one count of kidnapping, three counts of felonious assault and one count of having weapons while under disability. The case proceeded to jury trial. Appellant was acquitted of kidnapping and all counts of felonious assault, and convicted of weapons under disability. The court sentenced him to five years incarceration. He assigns two errors on appeal:
{¶10} “II. THE JURY‘S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
I
{¶11} In his first assignment of error, appellant alleges that the indictment for having weapons while under disability should have been dismissed because he was not convicted of felonious assault in 1997 when his conviction for felonious assault was merged into his kidnapping conviction. He also argues use of two convictions impermissibly allowed the jury to hear “other acts” evidence.
{¶12} The indictment alleges in pertinent part:
{¶13} “……as a continuous course of conduct from on or about the 1st day of April in the year of our Lord two thousand nine, to on or about the 31st day of May in the year of our Lord two thousand nine, at the County of Stark, aforesaid, did, not having been relieved from disability, as provided in
Section 2923.14 of the Revised Code , did knowingly acquire, have, carry, or use a firearm, and said LUCIUS MARVIS ROWSER, having been convicted of a felony offense of violence, to-wit: Kidnapping and Felonious Assault, in Stark County Common Pleas Court (Case No. 1997CR0750, on or about September 5, 1997 in violation ofSection 2923.13(A)(2) of the Ohio Revised Code , contrary to the statute in such cause made and provided, and against the peace of dignity of the State of Ohio.” Indictment, July 6, 2009.
{¶15} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶12, the Ohio Supreme Court stated that a conviction consists of a guilty verdict and the imposition of a sentence or penalty. However, Whitfield also states that a defendant may be found guilty of two allied offenses, but not sentenced on both of them. Id. at ¶17. “Because
{¶16} Because the determination that appellant was guilty of both felonious assault and kidnapping remained intact, despite the merger for sentencing, the court did not err in failing to dismiss the indictment.
{¶17} Appellant also argues that because only one felony conviction was necessary to prove weapons under disability, the trial court should have еxcluded testimony concerning a second conviction because it was unduly prejudicial. This claim is without merit. We first note that appellant not only failed to object to the jury being instructed concerning both past offenses, counsel specifically requested that the jury be instructed that the state must prove both prior offenses. Tr. 741. Further, appellant
{¶18} Further, appellant cannot demonstrate prejudice from the admission of the other acts evidence because he was acquitted of the charges of felonious assault and kidnapping in the instant case.
{¶19} The first assignment of error is overruled.
II
{¶20} Appellant argues that the conviction is not supported by sufficient evidence and was against the manifest weight of the evidence because he was not “convicted” of felonious assault due to the merger of the conviction with kidnapping for purposes of sentencing. He asserts that the jury was instructed that the essential element of the disability in the case sub juice was prior convictions for felonious assault and kidnapping. Hе argues that it would not have been possible for the evidence to prove prior convictions for both offenses because the offenses had been merged for sentencing.
{¶21} In determining whether a verdict is against the manifest weight оf the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
{¶22} An appellate court‘s function when reviewing the sufficiency оf the evidence is to determine 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 reаsonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶23} Appellant was convicted of violating
{¶24} “(A) Unless relieved from disability as provided in
section 2923.14 of the Revised Code , no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:{¶25} (2) The person is under indictment for or has been convicted of any felony offense of violеnce or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.”
{¶26} “Offense of violence” is defined by
{¶27} “(a) A violation of section
2903.01 ,2903.02 ,2903.03 ,2903.04 ,2903.11 ,2903.12 ,2903.13 ,2903.15 ,2903.21 ,2903.211 ,2903.22 ,2905.01 ,2905.02 ,2905.11 ,2907.02 ,2907.03 ,2907.05 ,2909.02 ,2909.03 ,2909.24 ,2911.01 ,2911.02 ,2911.11 ,2917.01 ,2917.02 ,2917.03 ,2917.31 ,2919.25 ,2921.03 ,2921.04 ,2921.34 , or2923.161 ,
of division (A)(1), (2), or (3) of
section 2911.12 , or of division (B)(1),(2), (3), or (4) ofsection 2919.22 of the Revised Code or felonious sexual penetration in violation of former section2907.12 of the Revised Code .{¶28} “(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;
{¶29} “(c) An offense, other than a traffiс offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
{¶30} “(d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.”
{¶31}
{¶33} In addition, kidnapping is a felony offense of violence and alone would create a disability such that pоssession of a weapon is prohibited. Therefore, even though the jury was instructed it needed to find previous convictions for both kidnapping and felonious assault, a finding of a previous conviction for either would have supported a conviction for Weapons Under Disability.
{¶35} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, P.J.
Farmer, J. and
Wise, J. concur
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JUDGES
JAE/r1207
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.
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JUDGES