State v. Oester

[Cite as State v. Oester, 2013-Ohio-2676.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2012CA00118
AARON MICHAEL OESTER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR0989

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 24, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO, KRISTINE W. BEARD
PROSECUTING ATTORNEY, 4450 Belden Village St. NW
STARK COUNTY, OHIO Suite 703
Canton, Ohio 44718
By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, S. - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00118 2

Hoffman, P.J.

{¶1} Defendant-appellant Aaron Michael Oester appeals his conviction and

sentence entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 1, 2011, Shannon Crolley and her mother, Doris Hoagland, drove

to Canton, Ohio to meet Appellant Michael Oester and two other men at the Kentucky

Fried Chicken location on Tuscarawas Avenue in Canton. Crolley knew Appellant from

her previous experience in a drug rehabilitation facility, and had previously contacted

him several times via text message.

{¶3} On that date, Appellant put Crolley in contact with Joseph Berry, otherwise

known as "J" or "Cuz," to purchase 2 ounces of marijuana for $200.00. However, after

leaving Crolley and Hoagland, "J" took the $200.00 and did not return with the

marijuana.

{¶4} Crolley and Hoagland drove back to the KFC to find Appellant, telling him

"J" had stolen the money. Appellant got in the car with the women and took them to

"J's" house. They travelled around Canton looking for "J", never finding him. They

eventually dropped Appellant off, and started to return home.

{¶5} On the way home, Crolley received a telephone call from Appellant telling

her he had retrieved her money. He gave her directions where to meet him. The

women turned around, and were given directions to a remote area in Southeast Canton

where they parked and waited. As they were waiting, Crolley witnessed Appellant

appear from an area of tall grass, walk around the front of the vehicle, and pass her
Stark County, Case No. 2012CA00118 3

vehicle holding a gun. He approached the vehicle, and proceeded to shoot Crolley in

the back of the head. He walked around the vehicle and shot Hoagland in the neck and

through the cheek.

{¶6} After the shooting, Hoagland climbed into the driver's seat of the vehicle,

and drove to a nearby business to get help. Both women were conscious, talking and

able to provide the identification of the shooter. The business called 911, and Hoagland

and Crolley were taken to a nearby hospital. Crolley was later life-flighted to Cleveland

Metro Hospital.

{¶7} On July 2, 2011, members of the Canton Police Department showed

Hoagland a photo array. Hoagland identified Appellant as the shooter. Three weeks

later, Crolley was shown a photo array and identified Appellant as the shooter.

{¶8} On August 16, 2011, the Stark County Grand Jury indicted Appellant on

two counts of attempted murder, in violation of R.C. 2903.02(A), 2923.02(A), first

degree felonies; two counts of felonious assault, in violation of R.C. 2903.11, second

degree felonies; and one count of having a weapon while under disability, in violation of

R.C. 2323.13(A)(2). The attempted murder and felonious assault charges carried

firearm specifications, pursuant to R.C. 2941.145, and repeat violent offender

specifications, pursuant to R.C. 2941.149.

{¶9} On November 11, 2011, the trial court conducted a hearing on Appellant's

motion to suppress the identification of Appellant from a photo array presented by the

Canton Police Department. The trial court overruled Appellant's motion to suppress.

{¶10} On November 20, 2011, Appellant moved the trial court to appoint a

neuropsychology expert. Specifically, Appellant sought an expert to determine the
Stark County, Case No. 2012CA00118 4

brain's response to trauma and the reliability of Crolley and Hoagland's identification of

Appellant as the shooter. Via Judgment Entry of November 16, 2011, the trial court

denied the motion.

{¶11} On February 28, 2012, Appellant filed a notice of alibi contending he was

with Joshua Kennedy at the time the shootings took place. A videotaped deposition of

Kennedy was taken via Skype as Kennedy is currently serving with the United States

Army in Afghanistan.

{¶12} Following two declared mistrials by the trial court, the matter proceeded to

trial for a third time on April 24, 2012. Appellant waived his right to a jury trial on the

charge of having weapons under disability and on the firearm and repeat violent

offender specifications. The other charges were then tried to the jury. On April 27,

2012, Appellant was convicted on all counts and specifications.

{¶13} On April 30, 2012, following a sentencing hearing, the trial court merged

the felonious assault and attempted murder charges. The court then sentenced

Appellant to ten years for each count of attempted murder, two three-year sentences for

each firearm specification, two ten-year sentences for each repeat violent offender

specification and thirty-six months for having a weapon under disability, all to be served

consecutively for a total term of forty-nine years in prison.

{¶14} Appellant now appeals, assigning as error:

{¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

GRANT APPELLANT'S REQUEST FOR FUNDS TO HIRE A NEUROPSYCHOLOGY

EXPERT TO AID IN APPELLANT'S DEFENSE.
Stark County, Case No. 2012CA00118 5

{¶16} “II. THE COURT'S FAILURE TO APPLY THE EXCLUSIONARY RULE

AND SUPPRESS IDENTIFICATION TESTIMONY WHICH WAS BASED UPON

SUGGESTIVE, UNRELIABLE POLICE IDENTIFICATION PROCEDURES

PRESENTED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION AND

THEREBY VIOLATED APPELLANT'S DUE PROCESS RIGHTS.

{¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING

THE STATE TO ADMIT THE TESTIMONY OF JOSHUA KENNEDY BY WAY OF

VIDEO TAPED DEPOSITION WHEN THE TESTIMONY HAD NOT BEEN SUBJECT

TO CROSS-EXAMINATION WITH NEWLY DISCOVERED EVIDENCE.

{¶18} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

PERMIT THE APPELLANT TO INTRODUCE AN ALIBI DEFENSE.

{¶19} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION BY IMPOSING NON-MINIMUM, MAXIMUM CONSECUTIVE

SENTENCES.

{¶20} “VI. APPELLANT'S CONVICTIONS FOR ATTEMPTED MURDER,

FIREARM SPECIFICATIONS, REPEAT VIOLENT OFFENDER SPECIFICATIONS

AND HAVING A WEAPON UNDER DISABILITY ARE AGAINST THE SUFFICIENCY

AND MANIFEST WEIGHT OF THE EVIDENCE.

{¶21} “VII. CUMMULATIVE [SIC] ERRORS COMMITTED DURING THE TRIAL

DEPRIVED THE APPELLANT OF A FAIR TRIAL AND REQUIRE A REVERSAL OF

APPELLANT'S CONVICTION AND SENTENCE.
Stark County, Case No. 2012CA00118 6

I.

{¶22} In the first assignment of error, Appellant maintains the trial court erred in

denying his request for funds to hire a neuropsychology expert to aid in his defense.

Specifically, Appellant moved the trial court for funds to hire an expert to advise counsel

about the brain's response to trauma and the reliability of the identification of a witness

after having suffered a serious head or brain injury.

{¶23} Appellant cites statutory law relative to the appointment of an expert for a

capital defendant. Though this is not a capital offense case, Appellant argues courts

have recognized non-capital defendants may require expert assistance. This Court has

held an indigent defendant bears the burden of establishing the reasonable necessity

for such assistance. State v. Ford (April 11, 2012), Ashland App. No. 01COA1438.

{¶24} In Ford, this Court held,

{¶25} "The decision whether or not to appoint an expert is within the discretion of

the trial court. Therefore, we will not reverse the trial court's decision absent an abuse of

discretion. In order to find an abuse of discretion, we must determine that the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Due process by the State, as guaranteed by the Fourteenth

Amendment to the United States Constitution and Section 16, Article I of the Ohio

Constitution requires an indigent criminal defendant be provided funds to obtain expert

assistance at state expense only where the trial court finds, in the exercise of sound

discretion, the defendant has made a particularized showing (1) of a reasonable

probability that the requested expert would aid in his defense, and; (2) that denial of the

requested expert assistance would result in an unfair trial. ‘Traditionally when dealing
Stark County, Case No. 2012CA00118 7

with criminal proceedings, there has been no authority for mandating the appointment of

an expert witness for an indigent defendant in a non-capital case.’ An indigent

defendant who seeks state funded assistance bears the burden of establishing a

reasonable necessity for such assistance. At a minimum, the indigent defendant must

present the trial judge with sufficient facts with which the court can base a decision.

Undeveloped assertions that the proposed assistance would be useful to the defense

are patently inadequate. We agree with the trial court. Appellant made no particularize

showing the requested expert would aid in his defense and that denial of the request

would result in an unfair trial. "

{¶26} There is no indication either Crolley or Hoagland suffered mental

impairment or a lapse of memory as a result of the shooting. Both victims were able to

immediately identify Appellant as the shooter. Additionally, Appellant had adequate

means to subpoena the treating physicians regarding the effects of the shooting on the

particular victims' identification of Appellant. We find Appellant has not demonstrated a

particularized need for the expert testimony, and the trial court did not abuse its

discretion in denying Appellant's request.

{¶27} The first assignment of error is overruled.

II.

{¶28} In the second assignment of error, Appellant argues the trial court erred in

denying his motion to suppress the identification testimony as the identification

procedure presented a substantial likelihood of misidentification and was unduly

suggestive and unreliable.
Stark County, Case No. 2012CA00118 8

{¶29} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 485 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.

Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings

of fact are not against the manifest weight of the evidence and it has properly identified

the law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court's conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 116 S.Ct. 1657, 1663 (1996), “... as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal.”

{¶30} Appellant argues both victims suffered from acute head injuries at the time

of the out-of-court photo array identification procedures, interfering with their

competency and ability to comprehend the nature of the procedures. Based upon the

totality of the circumstances, Appellant asserts the procedure was unduly suggestive

and created a substantial risk of misidentification during the investigation and trial.
Stark County, Case No. 2012CA00118 9

{¶31} When a witness is shown a photograph of a suspect before trial, due

process requires a court to suppress the photo identification of the suspect if the photo

array was unnecessarily suggestive of the suspect's guilt and the identification was not

reliable. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), superseded

by constitutional amendment on other grounds. The defendant has the burden to show

the identification procedure was unduly suggestive. State v. Harris, 2nd Dist. No. 19796,

2004–Ohio–3570, ¶ 19. If the defendant meets that burden, the court must then

consider whether the identification, viewed under the totality of the circumstances, is

reliable despite its suggestive character. Id., citing State v. Wills, 120 Ohio App.3d 320,

324, 697 N.E.2d 1072 (1997). If the pretrial confrontation procedure was not unduly

suggestive, any remaining questions as to reliability go to the weight of the

identification, not its admissibility, and no further inquiry into the reliability of the

identification is required. Id. at 325, 697 N.E.2d 1072.

{¶32} The focus under the totality of the circumstances approach is on the

reliability of the identification, not the identification procedures. State v. Lott (1990), 51

Ohio St.3d 160. R.C. 2933.83 sets forth the minimum requirements to be followed for a

photo lineup procedure.

{¶33} On July 2, 2011, Detective Victor George and Officer Brian McWilliams

presented Hoagland two photo line-ups while she was at Aultman Hospital. Each photo

line-up contained pictures of male suspects. The first contained a photo of Appellant,

and the second a photo of Joseph Berry, otherwise known as “J.” Appellant maintains

Hoagland was in intensive care, highly sedated, and recovering from a facial surgery
Stark County, Case No. 2012CA00118 10

the previous morning. She could not speak, and could not handle the documents.

Hoagland had a strong reaction to Appellant's photo.

{¶34} On July 1, 2011, Crolley was admitted to Mercy Medical Center, and then

life-flighted to Metro Cleveland. On July 28, 2011, Sergeant Victor George and Officer

William Guthrie traveled to Crolley's home in Uhrichsville, Ohio to present her with the

photo line-ups. The officers placed Crolley in the police vehicle and presented her with

the two photo arrays. Crolley made a positive identification of Appellant as being a "5,"

and Joseph Berry being a "4." Appellant maintains his picture in the arrays shows he is

wearing a different color and style of shirt than the individuals in the other photos.

{¶35} Upon review of the record and the testimony, we do not find the officers

failed to comply with the provisions of R.C. 2933.83, nor do we find the procedures

utilized were unduly suggestive or created a substantial likelihood of misidentification.

Accordingly, we find the trial court properly overruled Appellant's motion to suppress the

identifications.

{¶36} The second assignment of error is overruled.

III.

{¶37} In the third assignment of error, Appellant maintains the trial court abused

its discretion in permitting the State to admit the testimony of Joshua Kennedy by way of

deposition when his testimony had not been subject to cross-examination with newly

discovered evidence.

{¶38} Joshua Kennedy's deposition testimony was taken via Skype on March 2,

2012, while Kennedy was serving in the armed forces in Afghanistan.
Stark County, Case No. 2012CA00118 11

{¶39} This matter proceeded to trial on March 6, 2012, and the trial court

declared a mistrial on March 8, 2012.

{¶40} On March 15, 2012, the State supplemented discovery providing Appellant

with the names of newly discovered witnesses, including Natasha Fields and Johnny

Gearheart.

{¶41} On March 19, 2012, the trial court declared a second mistrial.

{¶42} On April 24, 2012, the matter proceeded to jury trial for the third time.

Appellant moved to exclude the videotaped deposition of Kennedy, arguing the State

had added additional witnesses and the deposition would violate his Sixth Amendment

right to confront witnesses. Appellant argued although he had an opportunity to cross-

examine Kennedy, he did not have an adequate and meaningful opportunity to cross-

examine him in light of the State's additional witnesses.

{¶43} The record demonstrates Appellant did in fact have a meaningful

opportunity to cross-examine Kennedy during the first deposition. Further, Appellant

could have requested a second deposition following the discovery of the additional

evidence, but failed to do so.

{¶44} Appellant's third assignment of error is overruled.

IV.

{¶45} In the fourth assignment of error, Appellant argues the trial court abused

its discretion in denying Appellant's introduction of an alibi defense.

{¶46} The Ohio Rules of Criminal Procedure require written notice of an alibi not

less than seven days prior to trial. Ohio R. Crim. Proc. 12. Absent notice, a trial court

may exclude the alibi evidence "unless the court determines that in the interest of justice
Stark County, Case No. 2012CA00118 12

such evidence should be admitted." State v. Thayer (1931), 124 Ohio St. 1; State v.

Nooks (1930), 123 Ohio St. 190.

{¶47} Here, Appellant filed a motion to preserve and produce video surveillance

of the SARTA bus depot on April 11, 2012. An order granting the same was filed on

April 13, 2012. On April 20, 2012, Appellant filed a notice of supplemental alibi. On

April 24, 2012, the matter proceeded to jury trial, and the State objected to the notice of

alibi arguing the same had not been timely filed.

{¶48} The record indicates two previous mistrials had been declared in this

matter, and Appellant filed a notice of alibi prior to the commencement of the third trial.

Appellant possessed the information for months prior to filing the notice. Therefore, we

find the trial court did not abuse its discretion in denying the notice of alibi.

{¶49} The fourth assignment of error is overruled.

V.

{¶50} In the fifth assignment of error, Appellant maintains the trial court erred in

imposing non-minimum, maximum consecutive sentences.

{¶51} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard. Id. Furthermore, “ * * * the right to appeal a

sentence under R.C. 2953.08(C) does not mean that consecutive sentences for multiple
Stark County, Case No. 2012CA00118 13

convictions may not exceed the maximum sentence allowed for the most serious

conviction.” See State v. Beverly, Delaware App.No. 03 CAA 02011, 2003–Ohio–6777,

¶ 17, quoting State v. Haines (Oct. 29, 1998), Franklin App.No. 98AP–195. But we have

recognized that “[w]here the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.”

State v. Firouzmandi, Licking App.No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

{¶52} R.C. 2929.11 and 2929.12 require consideration of the purposes and

principles of felony sentencing, as well as the factors of seriousness and recidivism.

See State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

{¶53} R.C. 2929.14(C) reads,

{¶54} "(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

{¶55} "(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶56} "(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses
Stark County, Case No. 2012CA00118 14

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶57} "(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender."

{¶58} At the sentencing hearing herein, the trial court indicated Appellant had

committed the offenses while on judicial release and community control for a previous

conviction of aggravated robbery committed nine months prior to his arrest herein.

{¶59} Upon review, we find the trial court properly considered the general

sentencing guidance factors, and we hold the trial court's consecutive, non-minimum

sentences in this matter are not unreasonable, arbitrary or unconscionable. We further

hold said sentences are not contrary to law.

{¶60} Accordingly, we find the trial court did not err in sentencing Appellant

herein, and the fifth assignment of error is overruled.

VI.

{¶61} In the sixth assignment of error, Appellant argues his convictions for

attempted murder, firearm specifications, repeat violent offender specifications and

having a weapon under disability are against the manifest weight and sufficiency of the

evidence.

{¶62} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
Stark County, Case No. 2012CA00118 15

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’"State v. Thompkins, 78 Ohio St.3d 380, 387,

1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶63} An appellate court's function when reviewing the sufficiency of 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 reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

{¶64} Appellant was convicted of two counts of attempted murder, pursuant to

R.C. 2903.02(A) and 292302(A); two counts of felonious assault, pursuant to R.C.

2903.11(A)(1) or R.C. 2903.11(A)(2); two firearm specifications, pursuant to R.C.

2941.145; two repeat violent offender specifications, pursuant to R.C. 2941.149; and

one count of having weapons under disability, pursuant to R.C. 2923.13(A)(2).

Appellant does not assert the State failed to prove an element of the offenses of which

he was convicted; rather, he argues mistaken identity.

{¶65} Appellant again suggests the two eyewitness identifications are suspect

due to the photo array procedure and the nature of their competency due to the witness'

head injury. Appellant argues absent the witness identification there is no other material

evidence to convict Appellant of the offenses.

{¶66} Based upon our analysis and disposition of Appellant's first and second

assigned errors, we find Appellant's sixth assigned error to be without merit and

overrule same.
Stark County, Case No. 2012CA00118 16

VII.

{¶67} In the seventh assignment of error, Appellant asserts the errors committed

at trial herein were cumulative and deprived Appellant of a fair trial; thereby requiring

reversal of Appellant's conviction and sentence.

{¶68} In light of our analysis and disposition of Appellant's first six assigned

errors, Appellant's seventh assigned error is overruled.

{¶69} Appellant’s convictions and sentence in the Stark County Court of

Common Pleas are affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

s/ John W. Wise _____________________
HON. JOHN W. WISE
Stark County, Case No. 2012CA00118 17

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
AARON MICHAEL OESTER :
:
Defendant-Appellant : Case No. 2012CA00118

For the reasons stated in our accompanying Opinion, Appellant’s convictions and

sentence in the Stark County Court of Common Pleas are affirmed. Costs to Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

s/ John W. Wise _____________________
HON. JOHN W. WISE