State v. Underwood

Karyn Justice, The Law Office of Karyn Justice, LLC, Portsmouth, Ohio, for appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, Matthew F. Loesch, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

MICHAEL D. HESS JUDGE

{¶1} Dustin L. Underwood appeals his conviction for voluntary manslaughter and aggravated assault. Underwood raises five assignments of error challenging: (1) the trial court's provision of jury instructions; (2) the sufficiency and manifest weight of the evidence supporting his convictions; (3) the effectiveness of his trial counsel; (4) the lawfulness of his sentence; and (5) cumulative error. We find no merit to Underwood's arguments, overrule his assignments of error, and affirm the trial court judgment.

I. FACTS & PROCEDURAL HISTORY

{¶2} In November 2020, the Scioto County grand jury indicted Underwood on three counts: (1) Murder in violation of R.C. 2903.02(B), R.C 2903.02(D), and R.C. 2929.02(B); (2) Voluntary Manslaughter in violation of R.C. 2903.03(A) and

R.C. 2903.03(C); and (3) Felonious Assault in violation of R.C. 2903.11(A)(1) and R.C. 2903.11(D)(1)(a). The murder and manslaughter counts included a firearm specification under R.C. 2941.145(A). Underwood pleaded not guilty, and the matter proceeded to a jury trial.

{¶3} The Scioto County Sheriff's Office Dispatcher testified that on the morning of February 3, 2020, the Scioto County Sheriffs Department received three 9-1-1 calls relating to a disturbance at 124 Wallace Road in rural Scioto County. A neighbor, Rod Taylor, called and described a "gunshot victim laying in the yard, suspects left in a silver sedan." After Taylor's call, Dustin Underwood called and stated that Lonnie Elliott^[1] shot Sabrina Gilbert^[2] in the chest. Underwood was driving Sabrina to Pike County Hospital. They were in a silver Honda on S.R. 32 east. Underwood and Sabrina had two sons, Devyn and Dylan Underwood, who were also with them. The neighbor, Taylor, called back to report that they were still waiting on an ambulance. Taylor added that Elliott had been shot in the head and chest, though later the evidence would reveal that Elliott had been severely beaten in the head and chest, but not shot. Taylor stated, "It looks like they beat him real bad too. * * * It was the people that lived down the hill from him." The 9-1-1 calls were played for the jury.

{¶4} Corporal Jonathan Chandler of the Pike County Sheriff's Office testified that on February 3, 2020, his office received a call of a possible shooting near the Pike and Scioto County lines. While enroute to the scene, Chandler

learned the incident happened in Scioto County, but he continued to assist with the call. Chandler also learned a female victim was being transported in a silver car near U.S. 32 and S.R. 104, which was the direction Chandler was traveling. Chandler testified a silver car traveling the opposite direction swerved into his lane, he assumed to grab his attention.

{¶5} The car drove into a church parking lot, and the occupants flagged him down. Three males standing outside of the car were "frantic." The female in the backseat, Sabrina, appeared to have a gunshot wound to her upper right torso. She was calm, possibly in pain or shock. Chandler transported Sabrina to Adena Medical Center in his cruiser. Devyn Underwood rode in the backseat with his mother. Underwood and the younger son Dylan followed in their vehicle. Once there, Sabrina was immediately taken for treatment. Underwood and his son Dylan had not yet arrived when Chandler went out to the waiting room. Chandler testified that Underwood arrived at the hospital in a different vehicle than the silver Honda he was driving when he flagged Chandler down.

{¶6} Chandler gathered information. Sabrina stated that Elliott had shot her accidentally. Underwood told Chandler that they were planning to take Dylan to school when Elliott came out of his house, upset because his tires had been slashed, and brandishing a firearm. Sabrina and Elliot were arguing while Elliott waved a gun. Underwood first went inside the camper, thinking Sabrina could calm Elliott. According to the story Underwood told Chandler, Underwood heard the two continuing to argue, so he went back outside and further witnessed Elliott waving the gun. At that point, Underwood snuck behind Elliott and tackled him, causing

the gun to discharge. Chandler testified that Underwood told him he beat Elliott so that he could take the gun from him. Underwood even admitted attempting to shoot Elliot, but the gun jammed when he pulled the trigger.

{¶7} Chandler asked Underwood where the firearm was and whether Underwood still had it on him or if it was in the car. Underwood told Chandler he had turned the bullet backwards inside the firearm and stored it at his mother's house in Waverly for safekeeping. Chandler and Detective Jodi Conkel later retrieved the gun with Underwood's assistance. On cross-examination, Chandler reiterated that Underwood was cooperative and described him as "excited and upset."

{¶8} Deputy Darren Fike testified that he travelled to 124 Wallace Road where he found Elliott, unable to speak and covered in blood, being loaded onto a cot. Deputy Fike took photographs of Elliott's injuries and the surrounding area.

{¶9} Detective Sergeant Jodi Conkel of the Scioto County Sheriff's Office testified that she and Detective Spencer were on their way to Wallace Road when they were diverted to Pike County Hospital on report of a female with a gunshot wound at the hospital.^[3] When they arrived, Sabrina was being treated. Underwood and his two sons and Corporal Chandler from Pike County were also there.

{¶10} Detective Conkel testified Underwood volunteered that he had once possessed the firearm involved in the shooting but had taken it to a Waverly location. They travelled to the location and Underwood led her to the gun in a closet. Conkel photographed the weapon and secured it in her vehicle. Conkel

identified the weapon as a Cobra 380 with a magazine which she secured in a box. A bullet was still inside the gun barrel. Conkel testified the gun barrel was impacted with mud, dirt, and rocks. Detective Spencer had used a knife to retrieve the bullet from the barrel. Conkel further testified there was also a magazine with a bullet inside. The bullet had been inserted backwards in the magazine. Conkel interviewed Underwood in a voluntary videotaped statement at the Scioto County Sheriffs Office, which was played for the jury.

{¶11} Conkel contacted Shane Hanshaw, a special agent with the Ohio Bureau of Criminal Investigations, to process the crime scene. He arrived at approximately 10:00 a.m. the day of the incident. EMS were there and officers had barricaded the scene. Hanshaw took photographs of the entire scene and testified there was a large concentration of blood on the ground, saturated in the soil, about five feet from the house. There were also random areas of blood drip stains and a stick with suspected blood lying next to the house. He recovered a cell phone and a 380-cartridge case at the corner of the front porch. Hanshaw took pictures of the evidence collected and turned it over to the Scioto County Sheriffs Office.

{¶12} Terry Crothers, an EMT and firefighter with Rarden Township, responded to the scene to assist Elliott. Elliott's eyes were swollen shut and bruised, blood was coming out of one of his ears, and bruising was noted on the back of his head. Elliott needed air transport due to possible head injuries. Crothers testified that blood was coming out of Elliott's mouth. Elliott was able to give brief responses about his name and about the altercation.

{¶13} Ryan Hagler, a flight paramedic with Air Evac, also noticed trauma to Elliott's head. Hagler determined that Elliott was critical with possible massive head trauma. Hagler also noticed Elliott could give short responses and he considered Elliott "fairly stable." Elliott was flown to Cabell Huntington Hospital.

{¶14} Dr. Andrew Young, an emergency room doctor at Cabell Huntington Hospital testified about Elliott's medical records. Dr. Young described Elliott's head as "pretty swollen," which indicated to him that Elliott had sustained multiple hits and likely had broken bones. He was able to move his extremities. According to the history reviewed, Elliott was awake with a severe headache, significant swelling to the left face, center area around the ear, and blood in the ear. The neurological examination revealed Elliott was awake, alert, and moving his extremities.

{¶15} Dr. Young testified that the CT reports indicated Elliott had sustained a traumatic left subdural hematoma. Dr. Young explained a subdural is a broken vein, a potentially life-threatening condition.^[4] The hematoma was indicative of blunt force trauma. Elliott also had a left zygomatic arch fracture, the bone outside of the eyeball, indicating a strong hit. Elliott was admitted to the intensive care unit (ICU) and a neurosurgeon performed a craniotomy the next day. The surgery was for the purpose of removing the blood from the hematoma and to prevent continued bleeding.

{¶16} Dr. Errington Thompson, attending surgeon at Cabell Huntington Hospital, testified he provided input as to whether Elliott was ready for the surgery.

Elliott was observed for several hours. CT scans on February 3 and February 4, 2020 both showed a subdural hematoma. Dr. Thompson read the impression for the CT scan done February 3, 2020: "Large frontal temporal subdural hematoma causing mass affect left to right midline shift as described above." The repeat CT scan looked worse. Dr. Thompson testified the hematoma...