Court Doc 1983
1. State vs. Miller, 1983 Ohio App. LEXIS 12222
Client/Matter: -None-
Search Terms: State vs. Miller, NO. 82 C.A. 8, 1983 Ohio App. LEXIS 12222 (Ct. App. November 8th, 1983)
Search Type: Natural Language
Narrowed by:
| Content Type | Narrowed by |
| Cases | -None- |
No Shepard’s Signal™
As of: March 9, 2022 9:37 PM Z
Court of Appeals, Seventh Appellate District, Mahoning County, Ohio
November 8, 1983
NO. 82 C.A. 8
1983 Ohio App. LEXIS 12222 *; 1983 WL 4573
STATE OF OHIO, Plaintiff-Appellee, Vs. BUDD W. MILLER, Defendant-Appellant.
murder, assigned error, sentence, gun, apartment, trial court, aggravated, shot, consecutive
Defendant appealed a judgment of the Court of Common Pleas of Mahoning County (Ohio), which convicted him of two counts of murder, pursuant to Ohio Rev. Code Ann. § 2903.01(A) and one count of felonious assault pursuant to Ohio Rev. Code Ann. § 2903.11. Defendant waived a jury trial and the conviction was entered after a bench trial. Defendant was sentenced to 15 years to life for each murder count and 5 to 15 years for the felonious assault.
The trial court ordered defendant to serve the sentences consecutively. The court affirmed the conviction and remanded the case for entry of a proper sentence. The court held as follows: (1) there was sufficient evidence in the record to support the trial court’s finding that defendant acted purposely based on testimony of the witnesses that defendant went into his mother’s house, obtained a gun and ammunition, loaded the gun, and forced his wife to drive to her apartment before shooting and killing his wife and another individual; (2) conflict in the testimony of the witnesses was in the province of the trial court; (3) the trial court did not err in admitting testimony of a prior act of defendant shooting five shots into his wife’s car under Ohio Rev. Code Ann. § 2945.59 and Ohio R. Evid. 404(B) because the evidence was offered in support of the allegation of “prior calculation and design,” a material element of the crime of aggravated murder; and (4) the trial court erred in sentencing defendant because by ordering the consecutive sentence, the trial court established a minimum sentence of 35 years to life in violation of Ohio Rev. Code Ann. § 2929.41(E)(1).
The court affirmed the judgment of the trial court convicting defendant and remanded the case to the trial court for correction of the record by entering the proper sentence.
Criminal Law & Procedure > Trials > Witnesses > Credibility
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview
HN1[] Witnesses, Credibility
The question of credibility of witnesses is solely within the province of the trial court.
Criminal Law & Procedure > … > Homicide, Manslaughter & Murder > Murder > General Overview
HN2[] Homicide, Manslaughter & Murder, Murder
Ohio Rev. Code Ann. § 2903.01(A) states: No person shall purposely, and with prior calculation and design, cause the death of another.
Criminal Law & Procedure > … > Homicide, Manslaughter & Murder > Murder > General Overview
HN3[] Homicide, Manslaughter & Murder, Murder
In an aggravated murder prosecution the allegation of “prior calculation and design” requires proof of time and opportunity for planning and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill.
Evidence > Admissibility > Conduct Evidence > Prior Acts, Crimes & Wrongs
HN4[] Conduct Evidence, Prior Acts, Crimes & Wrongs
Ohio Rev. Code Ann. § 2945.59 provides in part as follows: In any criminal case in which the defendant’s intent, the defendant’s scheme, plan, in doing an act is material, any acts of the defendant which tend to show his motive or intent, or the defendant’s scheme, plan, in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Evidence > Admissibility > Conduct Evidence > Prior Acts, Crimes & Wrongs
HN5[] Conduct Evidence, Prior Acts, Crimes & Wrongs
Ohio R. Evid. 404(B) provides in part as follows: Evidence of other crimes, wrongs, or acts may be admissible for other purposes, such proof of opportunity, intent, preparation, or plan.
Criminal Law & Procedure > Sentencing > Consecutive Sentences
Criminal Law & Procedure > … > Murder > Aggravated Murder > General Overview
Criminal Law & Procedure > … > Murder > Aggravated Murder > Penalties
HN6[] Sentencing, Consecutive Sentences
Ohio Rev. Code Ann. § 2929.41(E)(1), multiple sentences, states: Consecutive terms of imprisonment imposed shall not exceed: an aggregate minimum term of 20 years, when the consecutive terms imposed include a term of imprisonment for murder and do not include a term of imprisonment for aggravated murder.
Counsel: [*1] Vincent E. Gilmartin, Prosecuting Attorney, and Paul F. Gambrel, Assistant Prosecuting Attorney, Youngstown, Ohio, for Plaintiff-Appellee.
Donald P. Leone, Youngstown, Ohio, for Defendant-Appellant.
Budd W. Miller, Pro Se, #166-311, P.O. Box 511, Columbus, Ohio 43216.
Judges: O’Neill, P.J., concurs.Cox, J., concurs.
Appeal from the Court of Common Pleas of Mahoning County, Ohio, from a conviction of two counts of murder and one count of felonious assault.
Defendant-appellant, Budd W. Miller, was indicted on June 25, 1981 on two counts of aggravated murder and one count of felonious assault pursuant to R.C. 2903.01(A) and 2903.11, respectively.
On June 29, 1981, appellant entered a not guilty plea to all charges. On July 8, 1981, appellant plead not guilty by reason of insanity and on July 30, 1981, appellant was ordered to be examined on his competency to stand trial and as to his sanity at the time of the commission of the alleged offense.
On September 17, 1981, appellant was found competent to stand trial.
Appellant’s motion to impanel a jury pursuant to R.C. 2945.19, special venue in capital cases, was overruled December 16, 1981. [*2] On January 12, 1982, appellant waived a jury trial.
The trial was had to the court and on January 19, 1982, appellant was found guilty of murder, pursuant to R.C. 2903.02, on the first two counts of the indictment and guilty as charged in the third count.
On January 19, 1982, appellant was sentenced as follows: first count, 15 years to life; second count, 15 years to life; third count, 5 years to 15 years. All sentences were ordered to be served consecutively.
The facts from which the charges arise, briefly, are that at approximately 2:00 p.m. on Easter Sunday, april 19, 1981, Linda Miller, her daughter, Dixie Jenine Ray, and a “foster daughter,” Linda Long, left their home at 1229 rigby Street and drove to an address on Florencedale Avenue, in the city of Youngstown, where Mrs. Miller‘s estranged husband, the appellant herein, was residing with his mother. The Millers had been separated since the Christmas season of 1980.
The individuals in appellant’s wife’s car visited with appellant in the car. At a point in time appellant left the car, went into the house and returned with a fully loaded .25 caliber automatic pistol, a fully loaded clip and several more rounds [*3] of ammunition. Appellant entered the car and pulled out the gun, pointed it at his wife and forced her to drive back to her residence on Rigby Street.
When they arrived at 1229 Rigby Street, appellant forced his wife into the residence at gunpoint. This was observed by alan Ray who was inside the apartment. Alan Ray went to a desk where a .38 caliber revolver was kept, removed the gun and took it to the second floor of the apartment and gave it to Lawrence Turley who had been at the apartment for Easter dinner.
Appellant was holding his wife at gunpoint.Turley said to appellant, something to the effect, “Budd, put down the gun and let’s talk.” After the request was repeated by Turley, appellant fired a shot in Turley’s direction. Dixie Jenine Ray, Linda Long and Alan Ray then ran from the apartment and the police were called.
Patrolmen Ishmael Carballo and Thomas Parry were the first policement to arrive on the scene. Parry was given the keys to the rear door of the apartment by Alan Ray. He then went to the rear of the apartment and entered through the kitchen. Once in the kitchen he observed the body of Turley lying in a puddle of blood. He called out inquiring [*4] whether anyone was hurt. After hearing the response of appellant’s wife that she was hurt, he observed appellant at the other end of the dining room at the entrance to the living room armed with a small caliber automatic. He ordered that appellant drop the gun. Appellant did not drop the gun and fired at Parry. After further exchange of gunfire, appellant was wounded with his own gun while it appeared that he was attempting to unjam its mechanism. Appellant was subdued and taken to the hospital for treatment. Turley and appellant’s wife died as a result of gunshot wounds inflicted by the gun in the possession of appellant.
Appellant’s first assignment of error states:
“That the court’s judgment was contrary to law and against the manifest weight of the evidence as the State of Ohio failed to prove the defendant-appellant guilty beyond a reasonable doubt to all elements of the crime of murder of Lawrence Turley and Linda Miller.”
Under this assignment of error appellant argues that no purpose was proven, therefore, the conviction of murder should be reversed. We find that this assignment of error has no merit.
Appellant’s own testimony and the testimony of Peter [*5] Novosel, the ballistics expert, clearly established that appellant fired the shots which killed Turley and appellant’s wife. There is sufficient evidence in the record to support the trial court’s finding that appellant acted “purposely.” Nothing in the record would support a determination that such a finding “shocks the senses.” It is supported by evidence of the weapon used (a deadly weapon – .25 caliber automatic pistol); the nature of the wounds (Turley – single shot to the head; appellant’s wife – three shots to the torso); and testimony about appellant’s actions prior to the shootings (getting the loaded gun from his mother’s home; forcing his wife to drive to the apartment on Ribgy Street at gunpoint; forcing of his wife into the apartment; firing of the first shot at Turley who was requesting that he put the gun down).
The areas that are in conflict are the testimony of the witnesses. HN1[] The question of credibility was solely within the province of the trial court.
The testimony by appellant was that he was under extreme emotional distress and that it was this stressful situation that lead to the deaths of his wife and Turley. This argument does not hold in light [*6] of the facts, specifically the actions of the appellant in perpetrating the crime. There was sufficient evidence presented by the state to support the judgment of the trial court’s finding of murder rather than that of voluntary manslaughter.
For the foregoing reasons we overrule appellant’s first assignment of error.
Appellant’s second assignment of error states:
“That the court erred in allowing evidence of alleged similar acts by defendant-appellant, which may have occurred prior to the incident from which the current charges of aggravated murder and felonious assault arose.”
Appellant was charged with two counts of aggravated murder under R.C. 2903.01, which HN2[] states:
“(A) No person shall purposely, and with prior calculation and design, cause the death of another.”
The state of Ohio introduced evidence of a prior act of the appellant in support of HN3[] the allegation of “prior calculation and design” which requires proof of “time and opportunity for planning * * * and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill.” State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph one of the syllabus.
R.C. 2945.59 [*7] HN4[] provides in pertinent part:
“In any criminal case in which the defendant’s * * * intent, * * * the defendant’s scheme, plan, * * * in doing an act is material, any acts of the defendant which tend to show his motive or intent, * * * or the defendant’s scheme, plan, * * * in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.” (Emphasis added.)
Rule 404 of the Ohio Rules of Evidence HN5[] provides in pertinent part:
“(B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts * * * may * * * be admissible for other purposes, such proof of * * * opportunity, intent, preparation, (or) plan, * * *.”
The evidence of the act committed by the appellant on December 26, 1980 was offered in support of the allegation of “prior calculation and design,” a material element of the crime of aggravated murder. On that date the appellant fired at least five shots into the car where his wife was sitting. This evidence tended to show that appellant had formed the intent to kill his wife as early as December 26, 1980. [*8] That act of hostility was properly introduced in evidence and we, therefore, overrule appellant’s second assignment of error.
Appellant’s third assignment of error states:
“That the court sentence of consecutive terms for the charges were not justified by the provisions of Revised Code 2929.02 and 2929.41(E)(1).”
Under this assignment of error the plaintiff-appellee, state of Ohio, agrees that there was error in the sentencing of the appellant. R.C. 2929.41, HN6[] multiple sentences, states:
“(E) Consecutive terms of imprisonment imposed shall not exceed:
“(1) an aggregate minimum term of twenty years, when the consecutive terms imposed include a term of imprisonment for murder and do not include a term of imprisonment for aggravated murder;”
The trial court, by the consecutive sentence, established a minimum sentence in this case of thirty-five years to life, which is improper under R.C. 2929.41(E)(1). We find that appellant has merit to this assignment of error and, therefore, sustain it.
Appellant’s fourth assignment of error states:
“That the trial court erred in not impaneling a jury pursuant to Revised Code 2945.18 and 2945.19 or 2929.02, wherein defendant-appellant [*9] should be entitled to a new trial.”
Under this assignment of error appellant argues that under the case of State v. Henry (1983), 4 Ohio St. 3d 44, the Ohio Supreme Court held that aggravated murder is a capital offense regardless of whether death may be imposed as a result of the conviction. Appellant argues that under this holding the motion for special venire should have been sustained.
Whatever the implications are of State v. Henry, we find that the trial court did not err in this regard as the record indicates that the appellant waived his right to a trial by jury and consented to a trial by the court. No demand was made for a three-judge panel as is required by R.C. 2945.06 for a non-jury trial of a capital case, nor was there an objection made to a single judge hearing the case. We, therefore, find that there was no error in this regard and overrule appellant’s fourth assignment of error and affirm the judgment of the trial court.
Having found that appellant’s third assignment of error had merit, we remand this matter to the trial court for correction of the record by entering the proper sentence according to law.
Judgment affirmed and cause remanded to the [*10] trial court for correction of the record by entering the proper sentence.
End of Document
Leave a reply to Final Exam Part One – Greg MD Blog Cancel reply