State v. Stargell

173 N.E.3d 197

STATE of Ohio, Plaintiff-Appellant

v.Robert STARGELL, Defendant-Appellee

No. 28928

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on June 18, 2021

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellant.

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717, Dayton, Ohio 45402, Attorney for Defendant-Appellee.

OPINION

WELBAUM, J.

{¶ 1} Plaintiff-Appellant the State of Ohio appeals from a trial court order granting Defendant-Appellee Robert Stargell's motion to modify the jury's verdict in his criminal trial. According to the State, the trial court abused its discretion and erred in applying Crim.R. 33(A)(4) when it modified the jury's verdict from a conviction for felonious assault to a conviction for assault. We agree.

{¶ 2} However, we conclude that the State is not entitled to pursue a discretionary appeal under R.C. 2945.67(A), and that our prior allowance of the State's appeal, therefore, was improvidently granted. Specifically, the order modifying the verdict was a final verdict from which the State may not appeal. Accordingly, the appeal will be dismissed, and our prior decision giving the State leave to appeal will be vacated.

I. Facts and Course of Proceedings

{¶ 3} On September 19, 2019, an indictment was filed charging Stargell with the following offenses: one count of felonious assault (deadly weapon), a second-degree felony; one count of recklessly discharging a firearm on or near prohibited premises (serious physical harm), a third-degree felony; one count of having weapons under disability (prior drug conviction), a third-degree felony; one count of having weapons under disability (prior offense of violence), a third-degree felony; and one count of violation of a protection order, a first-degree misdemeanor. The felonious assault and reckless discharge of a firearm counts also included firearm specifications.

{¶ 4} The charges arose from an incident that occurred on August 23, 2019, on Gramont Avenue in Dayton, Ohio. Previously, in June 2019, Stargell and Jerita Pooler had ended their romantic relationship. About two months later, Jerita began dating Robert West. At the time of the incident, Jerita, West, and Jerita's son, C.H., were staying at the home of Jerita's stepmother, Irmela Pooler. Transcript of Proceedings (Jury Trial) ("Tr."), p. 33-35 and 116-117.

{¶ 5} After getting off work on August 23, 2019, Jerita was sitting outside with Irmela, C.H., and West. At that time, Jerita saw a Facebook video that concerned her. Stargell had posted the video and had called Jerita and West "bitches," "clowns," and other names. Id. at p. 39-40. Subsequently, around 5:00 or 6:00 p.m., Stargell drove by the house but did not stop. Id. at p. 54-55.

{¶ 6} Later in the evening, Jerita was sitting outside in her car, which was parked in the driveway. It was dark outside. Jerita was sitting in the driver's seat, West was in the front passenger seat, and C.H. was in the back seat. Id. at p. 45, 46, 55-56, 60, and 71. At that time, Stargell approached in a different car, and someone else was driving. When the car pulled up, Stargell had a mask over his face and pointed a gun at Jerita. It looked like a white gun with a red light, like a laser light, but she did not see the handle. Id. at p. 45, 56, and 59.

{¶ 7} The laser was pointed at Jerita, and she heard Stargell say, "No, not her." The car pulled down a little bit, to where West was sitting, and the laser was pointed at West. Tr. at p. 58 and 60. The car then pulled further down the street. At that point, Jerita got out of her car. West also got out of the car, to try and calm Jerita down. Id. at p. 61. However, the keys were still in Jerita's car, and C.H. took off in the car, following the car in which Stargell was riding. Id. at p. 61.

{¶ 8} Jerita stood outside at first, and then ran into the house, shouting for her stepmother to call the police. Id. at p. 61-62. Both Jerita and Irmela called 911. Id. Five or ten minutes later, C.H. returned and parked the car at a 45-degree angle in front of the driveway. Id. at p. 47, 63, and 89. Two shots were then heard being fired in the alley behind the house, but no one saw who fired the shots. Id. at p. 48-50, 67, 91, 92, 104, 105, and 122.

{¶ 9} At this point, Jerita was outside, standing in the grass by the front door, and West was by Jerita's car. Stargell emerged on foot from the alley, looked at Jerita, and said, "I oughta shoot you, bitch." Id. at p. 47, 65, and 92. He then said, "Where that n****r at?" Id. at p. 65 and 91-92. Jerita told Stargell that he was "over there," and Stargell began chasing West around Jerita's car. Id.

{¶ 10} When the chase began, West was at the driver's door of the car. The sunroof and all the car windows were down. Stargell walked up to the passenger side of the car, with his gun cocked, and said, "Bitch, didn't I tell you I was going to kill you." Tr. at p. 93-94. West ducked, and Stargell shot at him through the passenger window. Id. at p. 95. According to both West and Jerita, C.H. was across the street videoing everything when this happened. West insisted that the video showed the shooting. Id. at p. 51, 65, 77, 95, 102, and 106. However, the video did not show any shooting. Id. at p. 106-109. West was also unable to identify the color of the gun, although Jerita testified that it was the same white gun she saw Stargell with earlier. Id. at p. 69 and 102.

{¶ 11} According to Jerita and West, after the first shot, Stargell chased West around the car several times. During this process, the gun jammed, and Stargell then left on foot. Id. at p. 48, 51, 65, 74, 95, and 96-97.

{¶ 12} Following the 911 calls, Dayton Police Officer Bryan Camden and other officers arrived at the scene. When Camden arrived, he saw two men (Stargell and C.H.) in the middle of the street, yelling, screaming, and walking back and forth. They were very angry. Id. at p. 135. After Camden separated the men, he spoke with Jerita, who told him what had happened. Camden directed other officers to locations to look for evidence. Id. at p. 137.

{¶ 13} While Camden spoke with Jerita, other officers were walking around, checking for evidence. Three officers were looking for shell casings, but they did not find any. No one found any physical evidence at the scene. Id. at p. 136 and 138-139. The officers looked with flashlights in the driveway and in the shed and garage area, but found nothing. Id. at p. 139. To Camden's knowledge, no officers found bullet holes in Jerita's vehicle, on the house, or on a residence across the street. No bullet holes were found anywhere in the vicinity. Id. at p. 141.

{¶ 14} That evening, Camden contacted his supervisor to ask for resources to use in helping to find shell casings. The Bureau of Alcohol, Tobacco and Firearms (ATF) has dogs that are trained to sniff out firearm-related materials, but a supervisor, rather than a street officer, must ask for this assistance. However, the ATF never responded. Id. at 142-143.

{¶ 15} Stargell was indicted on September 19, 2019, for felonious assault and other firearm-related violations and specifications. Following Stargell's not guilty plea, a jury trial was held on August 26 and 27, 2020. During the trial, the State presented the testimony of Jerita, West, Irmela, and Officer Camden; the defense did not call any witnesses. After hearing the testimony, the jury found Stargell guilty of felonious assault and violating the protective order but found him not guilty of the rest of the charges, including all gun-related charges and the firearm specifications. Tr. at p. 201-202. During a sidebar, the judge noted that the verdicts were inconsistent and allowed both sides to reserve their objections or to file any motions they wished. Id. at p. 203-204. The judge then discharged the jury. Id. at p. 204-205.

{¶ 16} On September 2, 2020, Stargell filed a motion for acquittal under Crim.R. 29(C) and, in the alternative, a motion under Crim.R. 33(A)(4) to modify the verdict of felonious assault to assault. The court then set submission dates, including allowing the State to file a memorandum in response no later than September 16, 2020. However, the State did not file a response. Subsequently, on September 21, 2020, the court granted the motion to modify the verdict and reduced the felonious assault conviction to a conviction for assault, a first-degree misdemeanor. The court also set a sentencing hearing for September 29, 2020.

{¶ 17} On September 30, 2020, the court filed a judgment entry sentencing Stargell to 180 days in the Montgomery County Jail for assault, and 180 days in jail for violation of the protective order, with the terms to be served consecutively. However, since Stargell had already served 373 days in jail, the court concluded that the sentence had been satisfied. See Termination Entry at p. 1, and Order Granting Motion to Modify Verdict. On October 1, 2020, the State filed a notice of appeal from the judgment.

{¶ 18} The State then filed a motion with our court on October 1, 2020, asking for leave to appeal pursuant to R.C. 2945.67(A) and App.R. 5(C). We granted the State's motion on December 3, 2020. See Decision & Entry (Dec. 3, 2020).

II. Discussion

{¶ 19} The State's sole assignment of error states:

The Trial Court Abused Its Discretion and Erred in Its Application of Crim.R. 33(A)(4) When It Modified the Jury's Verdict, Which Had Found Stargell Guilty of Felonious Assault.

{¶ 20} Under this assignment of error, the State makes two main points. The first is that the trial court erred because the jury verdicts were not legally inconsistent. According to the State, the jury's negative finding on the firearm specifications and other charges did not invalidate the guilty verdict for...