STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHARLES V. SCHAEFFER, DEFENDANT-APPELLANT.
CASE NO. 13-14-34
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
August 31, 2015
[Cite as State v. Schaeffer, 2015-Ohio-3531.]
OPINION. Appeal from Seneca County Common Pleas Court Trial Court No. 14CR0124. Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
Scott B. Johnson for Appellant
Derek W. DeVine for Appellee
{¶1} Defendant-appellant Charles V. Schaeffer (“Schaeffer“) appeals the October 31, 2014, judgment of the Seneca County Common Pleas Court sentencing him to life in prison with parole eligibility after 25 years once Schaeffer was convicted in a jury trial of Complicity to Aggravated Arson in violation of
{¶2} The facts relevant to this appeal are as follows. On May 26, 2014, in the early morning hours, Shey Weiker started a fire at the residence of Daniel Marker by throwing a flare. Weiker believed Marker had molested her son. Two women were staying at Marker‘s residence at the time. Marker‘s home was engulfed in flames and Marker died of carbon monoxide poisoning, along with one of the women who was staying at his residence. The second woman, Dana Weatherall, survived by jumping out of the home‘s back window. She sustained injuries that left her in the hospital for four days.
{¶3} Weiker eventually admitted to her involvement in the fire, and pled guilty to various crimes including Aggravated Arson, Murder, and Aggravated Murder. Weiker implicated Schaeffer as being complicit in the crimes. She indicated that just prior to starting the fire she had been talking with Schaeffer about various ways to burn down child molesters’ homes, that Schaeffer told her using a flare or “fusee” would leave no evidence behind, that Schaeffer gave her a flare, showed her how to use the flare, and that Schaeffer then told her to “go do it.”
{¶4} On June 12, 2014, Schaeffer was indicted for Complicity to Aggravated Arson in violation of
{¶5} On June 18, 2014, Schaeffer filed a written plea of not guilty by reason of insanity and a request for competency evaluation. (Doc. No. 15). That same day the trial court held an arraignment hearing and the trial court ordered
{¶6} On August 22, 2014, the trial court held a hearing to determine Schaeffer‘s competency. After reviewing the report of the Court Diagnostic and Treatment Center and the opinion of Thomas G. Sherman, M.D., the court determined that Schaeffer did have the capacity “to understand the nature and objective of the proceedings against him and [that he did] have the capacity to assist in his defense.” (Doc. No. 30). In addition, based on the opinion of Dr. Sherman, the trial court determined that Schaeffer was not suffering from a “mental defect at the time of the offense which would have impaired his ability to know the wrongfulness of the acts charged.”1 (Id.)
{¶7} The case ultimately proceeded to a jury trial, which was held October 27-29, 2014. At trial the State called ten witnesses including the detectives, the coroner, and the fire marshal who investigated the case, the surviving victim from the fire, some of the individuals who were present with Shey Weiker in the hours before the alleged incident, and Shey Weiker, who testified that Schaeffer gave her the flare, showed her how to use it, and told her to “go do it.” Schaeffer called no witnesses but his attorney did extensively cross-examine the majority of the
{¶8} On October 31, 2014, the case proceeded to sentencing. At the sentencing hearing Schaeffer gave a very brief statement that he “just never meant any of this” then his attorney spoke in mitigation. (Oct. 31, 2014, Tr. at 2). Victim statements were then presented to the court and multiple family members of the victims gave statements. The trial court ultimately ordered Schaeffer to serve 10 years in prison for Complicity to Aggravated Arson (Count 1), life imprisonment with parole eligibility after serving 25 years in prison for Complicity to Aggravated Murder (Count 2), 15 years to life in prison for Complicity to Murder (Count 3), and ten years in prison for Complicity to Attempted Murder (Count 4). The court ordered that all the sentences be served concurrently for a total of 25 years in prison before parole eligibility. A judgment entry memorializing this sentence was filed October 31, 2014. (Doc. No. 53).
{¶9} It is from this judgment that Schaeffer appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE DEFENDANT WAS IMPROPERLY CONVICTED OF COMPLICITY TO ATTEMPTED FELONY MURDER WHEN THE CRIME OF ATTEMPTED FELONY MURDER HAS BEEN DECLARED IMPOSSIBLE IN OHIO.
THE DEFENDANT‘S CONVICTION WAS NEITHER SUPPORTED BY THE SUFFICIENCY NOR THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED BY ASSESSING A RESTITUTION SANCTION WITHOUT CONDUCTING AN ABILITY TO PAY HEARING.
First Assignment of Error
{¶10} In his first assignment of error, Schaeffer argues that he was improperly convicted of Complicity to Attempted Felony Murder (Count 4 of the indictment) because it has recently been determined by the Ohio Supreme Court in State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, that “attempted felony murder” is not a cognizable crime in Ohio. The State actually concedes that based upon Nolan, Schaeffer‘s conviction for Complicity to Attempted Felony Murder should be reversed.
{¶11} In Nolan, the Ohio Supreme Court conducted the following analysis in determining that Attempted Felony Murder is not a cognizable crime in Ohio.
The issue in this case is * * * whether it is possible to commit “attempted felony murder” in Ohio. For the reasons that follow, we conclude that it is not.
* * *
One obvious requisite of the [attempt] statute is that a person cannot commit an attempt offense unless he or she has acted purposely or knowingly. Thus, to be convicted of an attempt
crime, a defendant must be shown to have attempted to commit the crime and to have acted with the “specific intention to cause a certain result” or the “specific intention to engage in conduct” of a certain nature, R.C. 2901.22(A) , or to have acted when “aware that his conduct will probably cause a certain result or will probably be of a certain nature,”R.C. 2901.22(B) .* * *
The felony-murder statute imposes what is in essence strict liability. Though intent to commit the predicate felony is required, intent to kill is not. See State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 31–33; State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 43 (
R.C. 2903.02(B) “does not contain a mens rea component“); People v. Hernandez, 82 N.Y.2d 309, 317, 604 N.Y.S.2d 524, 624 N.E.2d 661 (1993) (“The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing. By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing” [citation omitted] ).In sum, an attempt crime must be committed purposely or knowingly and intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended. Thus, this case devolves to an anfractuous question: Can a person be guilty of attempting to cause an unintended death? We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio.
{¶12} Based on the Ohio Supreme Court‘s holding in Nolan that Attempted Felony Murder is not a cognizable crime in Ohio, we find that Complicity to
Second Assignment of Error
{¶13} In Schaeffer‘s second assignment of error, he argues that there was insufficient evidence to convict him of Complicity to Aggravated Arson, Complicity to Aggravated Murder, and Complicity to Murder and that his convictions were against the manifest weight of the evidence.2
{¶14} Whether there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency challenge, “the relevant inquiry is 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 reasonable doubt.” State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶15} The Ohio Supreme Court has “carefully distinguished the terms ‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and ‘legal sufficiency’ are ‘both quantitatively and qualitatively different.‘” Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus.
{¶16} Unlike our review of the sufficiency of the evidence, an appellate court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. Thompkins, supra, at 387. In reviewing whether the trial court‘s judgment was against the weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. Id. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Andrews, 3d Dist. Allen No. 1–05–70, 2006–Ohio–3764, ¶ 30, quoting Thompkins at 387.
{¶17} In this case, Schaeffer was convicted of Complicity to Aggravated Arson, Complicity to Aggravated Murder, and Complicity to Murder. Complicity is defined in
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
* * *
(2) Aid or abet another in committing the offense;
{¶18} The Ohio Supreme Court defined how a defendant may be convicted of Complicity by aiding and abetting in State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, at syllabus. In Johnson, the Ohio Supreme Court held,
“To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2) , the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.”
(Emphasis added.) Johnson at syllabus.
{¶19} In this case Schaeffer was allegedly complicit in Aggravated Arson, Aggravated Murder, and Murder. Aggravated Arson is codified in
(A) No person, by means of fire or explosion, shall knowingly do any of the following:
(1) Create a substantial risk of serious physical harm to any person other than the offender;
{¶20} Aggravated Murder, as charged in this case, is codified in
(B) No person shall purposely cause the death of another * * * while committing or attempting to commit * * * kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.
{¶21} Murder, as charged in this case, is codified in
(B) No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence3 that is a felony of the first or second degree and that is not a violation of section
2903.03 or2903.04 of the Revised Code.
{¶22} In order to convict Schaeffer at trial of Complicity to Aggravated Arson, Complicity to Aggravated Murder and Complicity to Murder, the State called ten witnesses including the principal offender who Schaeffer was allegedly complicit with, Shey Weiker.4 Weiker testified that she was currently incarcerated for her crimes related to this incident but prior to being arrested she lived at 151½ Taft Street in Fostoria in an apartment above where Schaeffer lived at 151 Taft Street. (Tr. at 227). Weiker testified that she had moved into the upstairs apartment a couple of weeks prior to the incident and that at the time of the incident her 13-year-old son was staying with her. (Id. at 229-230). Weiker testified that she lived in the apartment above Schaeffer‘s rent-free in exchange for doing housework and helping Schaeffer take care of Karen, Schaeffer‘s wife. (Id.
{¶23} Weiker testified that on the evening of May 25, 2014, she went to Findlay to the VFW with her boyfriend Jason, Schaeffer‘s wife Karen, Tim Hall and others to go to a karaoke contest. (Tr. at 234-36). Weiker testified that they were at the VFW for several hours. (Id. at 236). Weiker testified that while she was at the VFW she got upset and got into a fight with her boyfriend Jason because he had another girl pick him up and he had text messages on his phone from the girl. (Id. at 235). Weiker testified that after the contest, she dropped Jason off at his house because Schaeffer did not like Jason being around, and then she drove back to the Taft Street residence. (Id. at 237-238).
{¶24} Weiker testified that at the Taft Street residence there were people on the porch including Karen, Vonda Hall, her son Tim Hall, and Vonda‘s friend/boyfriend James. Weiker testified that she was still upset at the time and she was venting for a while on the porch while they all smoked marijuana. (Tr. at 238).
{¶25} Weiker testified that at some point the conversation changed to the topic of child molesters, which was a sore subject for Weiker because she “was molested when [she] was little and the guy got away with it.” (Id. at 239). Weiker testified that she “found out earlier this year that [her] son had been raped,” and
{¶26} Weiker testified that at some point Schaeffer texted her phone and asked her to come inside. (Tr. at 240). Weiker testified that Schaeffer had been inside while the rest of the people were on the porch because Schaeffer “really didn‘t sit out and associate much with anybody.” (Id. at 241). Weiker testified that she went into Schaeffer‘s room and had a discussion with Schaeffer about “burning houses down without leaving evidence.” (Id. at 242). Weiker testified that they both were talking about it. (Id.) Weiker testified that she said she wanted to burn all of the houses down that a child molester lived in, that included the one down the street from them (where Marker lived). (Id.) Weiker testified that Schaeffer said “[f]lares don‘t leave fingerprints” and that he had some on the back porch. (Id. at 242). Weiker testified that she “sat there crying until [Schaeffer] told [her] to go get the, get [the flares] on the back porch.” (Id. at 243). Weiker testified that the flares were in a plastic bag on the back porch. (Id.)
{¶27} Weiker testified that she brought the bag of flares to Schaeffer, that Schaeffer took one out of the bag and said, “this is how you use it.” (Tr. at 243).
{¶28} Weiker testified that she then left Schaeffer‘s room and went back to the porch and told Timothy Hall to walk with her. Weiker testified that Tim was one of her best friends and she called him her little brother. (Tr. at 245). Weiker testified that as they walked Tim was telling her to use her head and think of her children. (Id.) Weiker testified that Tim stopped to “to take a piss” at some point, and she walked off at that time. (Id. at 268).
{¶29} Weiker testified that she walked to Marker‘s house, that she was within 25 feet, and that she “stood there with a flare in [her] hands and all that came to [her] was how [her] son was hurt for so many years.” (Tr. at 246). Weiker testified that she then struck the flare and threw it at the house. (Id.) Afterward, Weiker testified that she ran away from the immediate vicinity of Marker‘s residence and that she then walked back toward the Taft Street residence, but she had to wait on a train. (Id. at 247). Weiker testified that she met back up with Tim Hall while waiting for the train, and that they then walked back to the Taft Street residence. (Id. at 248). Weiker testified that when she returned she went upstairs with her son who was sleeping. (Id.)
{¶30} Weiker testified that she stayed upstairs until Schaeffer yelled and told her to look out the window across the tracks, which she did, and she saw a fire. (Tr. at 248-249). Weiker testified that later that day she was taken to the police station and she told them that she got the flare from Schaeffer and that Schaeffer showed her how to strike it that night. (Tr. at 254). Weiker testified that she had never used a flare prior to that night. (Id.)
{¶31} Weiker testified that she was indicted for Aggravated Arson, Aggravated Murder, Murder and Attempted Felony Murder. Weiker testified that she pled guilty to all of those crimes, and that she was serving a life sentence with parole eligibility after serving 25 years in prison. (Tr. at 255). Weiker testified that the deal did not require her to testify in this case, and that she was not promised anything by the State in exchange for her testimony. (Id.)
{¶32} On cross-examination Weiker testified that earlier in the evening prior to the incident she had tried to commit suicide and was stopped twice, once by her boyfriend and once by Tim Hall. (Tr. at 280). She also testified that she had half a beer on the night of the alleged incident and that she had been smoking marijuana throughout the night.5 (Tr. at 274).
{¶33} The State also called two witnesses who were on the porch of Schaeffer and Weiker‘s residence on the night of the incident in question,
{¶34} Ball testified that he waited at the Taft street residence with Vonda for a while until Vonda‘s son Tim and others arrived including Shey Weiker and Schaeffer‘s wife. (Tr. at 138). Ball testified that he had met Tim previously but had not met any of the others. (Id. at 139). According to Ball, the others had all gone to a karaoke contest and had just returned. Ball testified that they initially all sat on the porch and talked about karaoke, but at some point the conversation turned negative. (Id. at 139-140).
{¶35} Ball testified that talk turned to child molesters. (Tr. at 140). Ball testified that there was a conversation regarding a crippled child molester, strapping him to a wheelchair and throwing him on railroad tracks.6 (Id. at 140). Ball testified that from there they talked about burning down a child molester‘s
{¶36} Ball testified that during the conversation Weiker was giddy and agitated, that she kept talking about a guy who molested her kid. (Tr. at 141). Ball testified that Weiker eventually left the porch and went inside for a while then came out of the house with a road flare. (Tr. at 143). Ball testified that Weiker said that she could use it to burn down the house, just “pop this and burn forever.” (Id. at 143). Ball testified that Weiker was in the house for 10-15 minutes, that when she came out she was outside for 10-15 minutes, and then Weiker left the porch and Tim went with her. (Id. at 143-144). Ball testified that he saw Weiker and Tim return again 60-90 minutes later. (Id. at 145).
{¶37} Ball testified that he and Vonda were in a vehicle at the Taft Street residence when an elderly gentleman notified them that there was a fire around the corner. (Tr. at 145). According to Ball, Vonda told Schaeffer about the fire and then Ball and Vonda walked over by the fire. (Id. at 147). Ball testified that he saw the fire and saw that there were bodies on the sidewalk covered with sheets. (Id.) Ball testified that he was shocked. (Id.) Ball testified at that moment he realized a general conversation had gotten real and out of control. (Id.) Ball
{¶38} On cross-examination Ball testified that Schaeffer was never on the porch, that he had no knowledge that Schaeffer was even at the Taft Street residence until later. (Tr. at 151). Ball testified that Schaeffer was not present during the conversation on the porch about burning a house down. (Id.)
{¶39} The State also called Tim Hall, who was at the Taft Street residence on the porch on the night/early morning of the alleged incident. Hall testified that he was close friends with Weiker and that they had a brother-sister-like relationship. (Tr. at 191). Hall testified that he was currently incarcerated serving 30 months for Obstructing Justice due to his involvement with this incident. (Id. at 190).
{¶40} Hall testified that up until about 3 weeks prior to the alleged incident he lived at 151 Taft Street with his mother Vonda above Schaeffer‘s residence (the residence Weiker occupied at the time of the incident). (Tr. at 191). Hall testified that he and Weiker occasionally did work for Schaeffer at a scrap yard, and that Schaeffer paid them under the table. (Id. at 192).
{¶41} Hall testified that on the evening of the alleged incident he went to a karaoke contest in Findlay along with Weiker, Weiker‘s boyfriend, Schaeffer‘s wife, and some other friends. (Tr. at 198). Hall testified that at the VFW Weiker
{¶42} Hall testified that Weiker eventually left the porch when she got a text from Schaeffer that said “come here K.” (Tr. at 202). Hall testified that Weiker was inside for approximately 15 minutes, that she was “heated again” when she came out, and that she had a flare. (Id. at 203). Hall testified that Weiker waved the flare around and sat down on the porch for 15 minutes with the flare in her lap. (Id. at 204). Hall testified that Weiker then got up and asked Hall to walk with her up the street. (Id. at 205). Hall testified that he initially let her walk without him but that he ended up following along and catching up to her, and told her to “think about [her] kids.” (Id.) Hall testified that Weiker turned up an alleyway and said that no matter what happened she was going to burn down the house, and she started walking toward Marker‘s house. (Id. at 206). Hall testified that he walked away, and Weiker initially came running back to him because the porch light was on at Marker‘s residence and it scared her. (Id.) Hall testified that
{¶43} Hall testified that Weiker no longer had the flare when he saw her again, but she had the cap to the flare. (Tr. at 207-208). Hall indicated that Weiker gave him the flare cap and he threw it down a sewer drain. (Id. at 212).
{¶44} Hall testified that they went back to the Taft Street residence and Schaeffer said to him that what Weiker did was her business and if Hall talked about it Schaeffer “would put [him] six feet under.” (Tr. at 210). Hall testified that he took Schaeffer “very serious.” (Id. at 211).
{¶45} Hall testified ultimately that he was currently incarcerated for his disposal of the flare‘s cap and for making a false statement to a detective. (Tr. at 212).
{¶46} On cross-examination Hall testified that he did not take Weiker seriously when she first spoke about burning down a house because Weiker had talked about doing “dumb stuff” before. (Tr. at 219). Hall testified that even when Weiker came back to him with only the flare cap he still thought she was lying. (Id. at 224).
{¶47} The State also called several officers who were involved in this case, including Detective Shilo Frankart. Detective Frankart testified that he was a detective for the Fostoria Police Department and that he was assigned to this case.
{48} In the interview Schaeffer stated that he paid Weiker to do laundry and be a housekeeper and to help out with his wife. (State‘s Ex. 3). Schaeffer stated that he was under the belief that Weiker‘s son had been molested by Marker. (Id.) Schaeffer stated that on the evening of the alleged incident he stayed at home while his wife went to karaoke with Weiker and that they all came home late. (Id.) Schaeffer stated that later after they got home he went upstairs to talk with Weiker about “gas” and that he was “rubbing” her back, legs and feet. (Id.) Schaeffer stated that he did not have a sexual relationship with Weiker but that he wanted to if his wife passed on.7 (Id.) Schaeffer stated that Weiker did not say anything about the fire and the first he heard of it was when Vonda Hall came up and said there was a fire. (Id.) During the interview Schaeffer indicated
{49} Later in the interview Schaeffer stated that he did text Weiker and ask her to come inside around 2 a.m. when Weiker was on the porch with others. (Id.) Schaeffer stated that Weiker was upset about Marker and that the police were not doing anything for her son. (Id.) Schaeffer stated that he and Weiker talked about different ways to light a fire but he did not show her how to light a flare. (Id.) Schaeffer stated that it was actually 2-3 weeks prior to the incident that he showed Weiker how to use a flare to burn wire. (Id.) However, when pressed later, Schaeffer stated that he “might of” showed her again how to use a flare that night. (Id.) Schaeffer said he never expected that Weiker would kill someone. (Id.)
{50} After the interview Detective Frankart testified that he spoke with Weiker again. (Tr. at 358). Detective Frankart also testified that since he learned that Schaffer had a surveillance system at his house he attempted to check that surveillance system for any useful information but it had already been taped over or deleted. (Id. at 355).
{51} The State also called Detective Gabriel Wedge of the Fostoria Police Department. Detective Wedge testified that he helped Detective Frankart investigate this case. (Tr. at 159). Detective Wedge testified that he typed up the
{52} Detective Wedge testified that he was notified that a fusee may have been used to start the fire and that a flare cap had been put down a specific sewer drain in the middle of the road. (Tr. at 175). Detective Wedge testified that he searched the specified sewer drain and found the fusee cap. (Id.) That cap was photographed and introduced into evidence. (Id. at 175-177). Daniel Davison of the BCI Lab division testified at trial that the cap recovered from the sewer drain was comparable to the flares recovered from Schaeffer‘s home. (Id. at 288).
{53} The State also called the first officer to respond to the scene of the fire at Marker‘s residence, officer Trey Farabee of the Fostoria City Police Department. Officer Farabee testified that he was working the midnight shift on May 26, 2014, when he learned of a fire. (Tr. at 128). He testified that he got into his cruiser and drove to the house, which was completely engulfed in flames when he arrived. (Id. at 129). Officer Farabee testified that since the front door was
{54} Officer Farabee testified that he moved the female with the help of a citizen, and learned from another individual who had showed up that the woman was deaf. (Id. at 131). Officer Farabee testified that the fire department eventually responded and treated the victim, and went into the house and brought out two individuals on backboards. (Id. at 133). Officer Farabee testified that one of the two other victims was briefly resuscitated in the ambulance. (Id. at 134).
{55} Frank Reitmeier, a State Fire Marshall‘s investigator, testified that he investigated the scene of the fire. (Tr. at 293). Reitmeier testified that there were two fatalities and one injury. (Id. at 295). Reitmeier testified that his investigation established that the fire started on the front porch. (Id. at 298). Photographs of the fire‘s aftermath were introduced into evidence, including photographs of the back door to Marker‘s residence. The back door had been screwed shut prior to this incident (not by anyone involved in this crime) and it was unable to be opened from the inside. (Id. at 322).
{56} Reitmeier testified that he interviewed Weiker, who initially denied involvement in the fire, but later stated that she started the fire and that she used a
{57} Dr. Cynthia Beisser, of the Lucas County Coroner‘s Office testified to a reasonable degree of medical certainty that Daniel Marker and Tara Vance both died from carbon monoxide poisoning as a result of the house fire. (Tr. at 395).
{58} The last witness the State called was Dana Weatherall. Weatherall testified through an interpreter that at the time of the incident she was living with her girlfriend Tara and Marker at Marker‘s residence. (Tr. at 404). Weatherall testified that her girlfriend knew Marker from when they both attended Ohio School for the Deaf. (Id.)
{59} Weatherall testified that on the evening of the fire her girlfriend was asleep and she was playing games on the computer. (Id. at 405). She testified that Marker eventually came to her and said there was a fire but he did not call 911. (Id.) Weatherall testified that Marker, his dog, and Weatherall‘s girlfriend were all killed in the fire. (Id.) Weatherall testified that she got out by jumping out of
{60} After Weatherall testified, the State rested its case. Schaeffer then made a
{61} Despite Schaeffer‘s arguments, the jury heard testimony from the principal offender that Schaeffer called her into her house and that the two of them discussed burning down a child molester‘s home. Unlike the general discussion on the porch that some may not have taken seriously, Schaeffer then told Weiker to go get flares that were on his back porch. Schaeffer then showed Weiker how to use the flares, said that they would not leave any evidence, and then told her to “go do it.” Schaeffer thus gave Weiker the physical means to commit the crime by the flare, showed her how to use the flare, and then encouraged her to go burn
{62} Thus the State presented sufficient evidence that, when looked at in a light most favorable to the prosecution, a reasonable factfinder could use to determine beyond a reasonable doubt that Schaeffer aided or abetted Weiker in committing Aggravated Arson, Aggravated Murder and Murder. Therefore, Schaeffer‘s sufficiency arguments on these issues are not well-taken.
{63} Schaeffer next argues that his convictions were against the manifest weight of the evidence. In arguing that his convictions were against the weight of the evidence, Schaeffer reasserts the same arguments made when claiming that there was insufficient evidence to convict him and, in addition, argues that the jury struggled with these issues because the jury asked multiple questions while deliberating. Schaeffer suggests that the Court‘s instructions, answers to the jurors’ questions during deliberations, and the evidence fail to support the jury‘s finding that Schaeffer “shared the criminal intent of the principal” on each of the three charges of Aggravated Arson, Aggravated Murder, and Murder.
{64} According to the Ohio Supreme Court‘s decision in State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, aiding or abetting can be proven by showing that Schaeffer “supported, assisted, encouraged, cooperated with, advised, or
{65} For the Complicity to Aggravated Arson and the Complicity to (Felony) Murder convictions, the State had to prove that Schaeffer aided or abetted Weiker and shared in Weiker‘s intent to knowingly cause a fire that created a substantial risk of serious physical harm for the Complicity to Aggravated Arson, and that the fire did in fact cause the death of Tara Vance for the Complicity to (Felony) Murder. There is ample evidence in the record to support that Schaeffer knowingly assisted Weiker in causing the fire when he gave her a flare, told her how to use it, and told her to “go do it” shortly before Weiker started the fire. It is also evident that Tara Vance died in the fire that Schaeffer knowingly assisted Weiker in starting. Thus we cannot find that either the conviction for Complicity to Aggravated Arson or the conviction for Complicity to (Felony) Murder was against the weight of the evidence. Schaeffer‘s arguments as to these two convictions are not well-taken.
{66} However, for the Complicity to Aggravated Murder conviction, the State had to show mental intent beyond Schaeffer‘s willingness to help Weiker start the fire at Marker‘s residence. To prove that Schaeffer was guilty of
{67} The evidence that the State presented in this case to establish that Schaeffer shared Weiker‘s intent to purposely cause the death of Marker consists of the following. Weiker had a conversation on Schaeffer‘s porch about wanting to kill all child molesters and about ways to burn down child molesters’ homes. Schaeffer was not present on the porch for this conversation, but according to his interview, he was in his bedroom watching the people on the porch through his surveillance equipment. Schaeffer‘s surveillance equipment did not have audio, but Schaeffer presumably heard some of the conversation because he messaged Weiker and told her to come inside at one point, and then discussed ways to light a fire with her in a manner that would leave no evidence, which was one of the subjects of conversations from the porch. Thus a jury could reasonably infer from the sequence and timing of these events that Schaeffer had overheard the discussion on the porch, and Weiker‘s conversation about wanting to kill child molesters, Marker in particular.
{69} Lastly, there were Schaeffer‘s actions after the fire. When Tim Hall returned to Schaeffer‘s residence after Weiker started the fire, Schaeffer threatened Hall, stating that what happened was Weiker‘s business and that if Hall told anyone Schaeffer would put him “six feet under.” These statements perhaps indicated that Schaeffer was aware of what Weiker had set out to do when she left his residence with the flare.
{70} On the other hand, James Ball testified that he thought Weiker was only joking and blowing off steam when she was on the porch talking about wanting to kill all child molesters. Tim Hall testified that he thought Weiker would not go through with burning down the Marker residence. He testified that
{71} In any event, Weiker herself testified that she did not know for sure that Marker was home at the time she started the fire. She also testified that she did not know other people were inside the home, or who was inside of it at the time. In addition, she testified that when she threw the flare, she knew it would cause a fire, but she did not know the fire “would be like that,” meaning that she did not know it would so quickly engulf the house in flames. In fact, Hall testified that Weiker first hesitated and walked away from Marker‘s house when she noticed the porch light was on and then returned and threw the flare anyway, thus possibly indicating her purpose to kill might not have fully formed until after she left Schaeffer‘s residence.
{72} Additionally, Weiker‘s testimony gave no indication that during her conversation with Schaeffer shortly before the incident she intended to kill Marker. In fact, according to her testimony, she never mentioned Marker‘s name to Schaeffer during that conversation; she merely referred to her son being molested, and referred to wanting to burn down the homes of all child molesters, including the “one up the street.”
{73} Furthermore, in the lengthy interview with Schaeffer that was played for the jury, Schaeffer admits that he had a conversation with Weiker before the
{74} On balance, there is a plausible path to the jury‘s conclusions in this case and we cannot say that the jury‘s verdict as to Aggravated Murder is against the weight of the evidence. Nevertheless, the evidence in support of finding that Schaeffer acted with the specific intent to assist Weiker in purposely causing the death of Marker is not overwhelming and requires inferences to be made from several circumstantial sources.
{75} Unfortunately, the lack of overwhelming evidence as to Schaeffer‘s specific intent to kill is a concern that is compounded by the fact that the instructions provided to the jury did not accurately reflect the essential elements of Complicity to Aggravated Murder. When the case was submitted to the jury, the jury was given the following instruction on what it had to find in order to convict Schaeffer of Complicity to Aggravated Murder.
Count Two. Complicity to Aggravated Murder. The defendant is charged with Complicity to Aggravated Murder. Before you can find the defendant guilty you must find beyond a reasonable doubt that on or about the 26th day of May, 2014, in Seneca
County, Ohio, the defendant aided Shey Weiker in committing the offense of aggravated murder. Aggravated murder being that Shey Weiker purposely caused the death of Daniel J. Marker while committing the offense of aggravated arson. Again “aid or abet” means supported, assisted, encourage[d], cooperated with, advised, or incited Shey Weiker to commit the offense.
Purposely. A purpose is an essential element of the offense of aggravated murder.
A person acts purposely when it is her specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of Shey Weiker a specific intention to purposely cause the death of Daniel J. Marker while committing the offense of aggravated arson.
Purpose is a decision of the mind to do an act with a conscious objective of producing a specific result. 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 herself unless she express[es] it to others or indicates it by her conduct.
The purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means used, and all the other facts and circumstances in evidence.
(Emphasis Added.) (Tr. at 444-445).
{76} The jury instruction that was given to the jury for Complicity to Aggravated Murder clearly requires the jury to find that Weiker specifically intended to kill Marker, but it contains no culpability element for Schaeffer. There is no indication in the preceding instruction that Schaeffer had to share Weiker‘s
1. The defendant is charged with complicity in the commission of the offense of (specify offense). Before you can find the defendant guilty, you must find beyond a reasonable doubt, that on or about the ___ day of ___, and in ___ (County) (Other jurisdiction), Ohio, the defendant (insert applicable culpable mental state if one is required for the commission of the principal offense)
(Use appropriate alternative[s])
* * *
(A)(2) (aided or abetted) another in committing the offense of (specify offense).
* * *
(Underline added, italics in original).
{77} More importantly, the omission of any reference to Schaeffer‘s mental state or purposeful culpability in this instruction is directly contrary to the decisions of the Ohio Supreme Court in Johnson and Herring, supra, which clearly require that to be convicted of Complicity it must be established that the accomplice “share the criminal intent of the principal“—which in this case required the jury to find that Schaeffer “shared in the purpose to kill” exhibited by
{78} Ironically the trial court did instruct the jury as to the requirement of shared criminal intent by the accomplice as to both the Aggravated Arson and Felony Murder counts in this case but did not do so with regard to the Aggravated Murder count.9
{79} In addition to the lack of a defined mental state for Schaeffer in the instructions, the instructions were also potentially confusing due to the definition of “purposely” that was used. The element of purpose related to Complicity to Aggravated Murder was the specific subject of one of the jury‘s questions asked during deliberations. In the jury instruction excerpted above that was used in this
{80} When read as a whole, these instructions seem to indicate that it was only required for Weiker to possess the specific intent to kill Marker, which is simply not correct. It was required that Weiker purposely cause the death of Marker, so the instructions are correct on that point, but it was also required for the jury to find that Schaeffer shared the purpose to cause the death of Marker. These instructions simply do not indicate that fact.
{81} Thus the jury in reading the instruction for Complicity to Aggravated Murder could have determined that as long as Schaeffer aided and abetted Weiker by assisting her in any manner, and as long as the jury could conclude that Weiker purposely killed Marker, Schaeffer could be guilty of Complicity to Aggravated
{82} That there was confusion on this culpability component was evident, as Schaeffer argues in this appeal, by the jury‘s questions after the case was submitted to them for deliberations. The jury asked a number of questions, one of which was, “We see on page 17 a discussion of all the essential elements. We see on page 11 under [count] two, purposely, a purpose is an essential element. Are all the numbers and letters under each count the essential elements?” (Tr. at 6).
{83} After a multi-page discussion on what the proper response should be, the trial court ultimately agreed to respond as follows.
The first paragraph after each heading for the various counts includes all of the essential elements. The numbers and letters define many of those words and phrases in the first paragraph.
* * *
* * *
Purposely is an essential element to Count Two, Aggravated Murder. It is not an essential element to the other counts.
(Tr. at 12).
{84} The trial court‘s answer to the jury‘s question thus emphasized that “purpose” was an essential element of Complicity to Aggravated Murder; however, it in no way clarified that not only Weiker but Schaeffer also had to act with purpose to cause the death of Marker. A juror could take the trial court‘s
{85} While Schaeffer did not object to the jury instructions at trial, we note that the State and Schaeffer‘s counsel had each submitted proposed jury instructions prior to the trial, and Schaeffer‘s proposed jury instruction contained a culpable mental state for Schaeffer (albeit the wrong one) in the Complicity to Aggravated Murder portion while the State‘s proposed instructions did not contain a culpable mental state.10 We also note that Schaeffer did object to the answer to the jury question regarding purpose. Nevertheless, because Schaeffer did not object to the original jury instructions per se and thus failed to comply with
{86} Under
{87} Conversely, an error is harmless where it “does not affect substantial rights” and it “shall be disregarded.”
{88} Here, the State elected to proceed on Complicity to Aggravated Murder, which required proof beyond a reasonable doubt that Schaeffer shared Weiker‘s intent to purposely cause the death of Daniel Marker. Based on the evidence before us and the flawed jury instruction we simply cannot say with the requisite degree of certainty that this jury found the element of specific purpose to
{89} In the past this Court has similarly found that an inadequate jury instruction constituted plain error. State v. Harvey, 3d Dist. Marion No. 9-04-69, 2005-Ohio-3882, ¶¶ 5-8. In Harvey, this Court determined that where a jury instruction did not set forth all of the essential elements of an offense, specifically omitting the word “deadly” from possessing a deadly weapon, plain error resulted. Harvey at ¶ 7.
{90} Therefore, to the extent that the assignment of error argues that any conviction of Aggravated Murder is against the weight of the evidence in this case, Schaeffer‘s second assignment of error is overruled. However, based solely upon the flawed jury instruction we find that Schaeffer‘s second assignment of error is well-taken to the extent that his conviction must be reversed and remanded for a new trial for Complicity to Aggravated Murder. Accordingly, his second assignment of error is overruled in part, and sustained in part.
{91} In Schaeffer‘s third assignment of error, he argues that the trial court erred in ordering restitution, costs, and fees when Schaeffer was serving a life sentence and had no ability to pay. Specifically, Schaeffer argues that the trial court should have conducted an “ability to pay hearing.”
{92} In this case Schaeffer was ordered to pay restitution to various victims including Nancy Marker, the Hanney Funeral Home, “Angel,” Brian Marker, and Dana Weatherall. The total amount of restitution ordered was $54,429.45. Due to our disposition of the first and second assignment of error Schaeffer will have to be resentenced and thus restitution will have to be re-addressed at the new sentencing hearing. This assignment of error is thus rendered moot, and we decline to further address it.12
{93} For the foregoing reasons Schaeffer‘s first assignment of error is sustained, his second assignment of error is overruled in part and sustained in part, and his third assignment of error is rendered moot. Having found error prejudicial to Schaeffer in the first and second assignments of error, we affirm in part and
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
Judgment Affirmed in Part, Reversed in Part and Cause Remanded