State v. Casteel

[Cite as State v. Casteel, 2020-Ohio-4898.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019 AP 10 0041
DOUGLAS M. CASTEEL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2018 CR 10 0359

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 9, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL J. ERNEST JACOB T. WILL
ASSISTANT PROSECUTING ATTORNEY 54 East Mill Street
125 East High Avenue Suite 400
New Philadelphia, Ohio 44663 Akron, Ohio 44308
Tuscarawas County, Case No. 2019 AP 10 0041 2

Wise, J.

{¶1} Appellant Douglas Casteel appeals his conviction and sentence in the

Tuscarawas County Court of Common Pleas for improperly handling firearms in a motor

vehicle in violation of Ohio Revised Code 2941.145(A) and having weapons under

disability in violation of Ohio Revised Code 2923.13(A)(2). Appellee is the State of Ohio.

The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 16, 2018, Appellant was indicted on one count of Improperly

Handling Firearms in a Motor Vehicle in violation of R.C. 2941.145(A) and one count of

Having Weapons Under Disability in violation of R.C. 2923.13(A)(2).

{¶3} On August 6, 2019, a jury trial commenced.

{¶4} Rex Watson, a resident of Newcomerstown, was familiar with Appellant, as

Appellant and Mr. Watson’s daughter have a baby together. He testified that on April 20,

2018, he was at his home when he heard arguing outside. He exited his home and saw

Appellant in a van behind his house. He then heard a gunshot, and Appellant drove away.

{¶5} Next, Luke Williams, also familiar with Appellant, testified he was at the

home of Rex Watson on April 20, 2018, when he also heard arguing taking place outside.

Mr. Williams stated that he went to the back porch of Mr. Watson’s home when he saw

Appellant with his head out the door of the vehicle. Mr. Williams continued that it appeared

the Appellant fired a gun out of the van window. Mr. Williams also testified that he is

familiar with Appellant and has observed him frequently operating this same van.

{¶6} Officer Larry Hootman of the Ohio Bureau of Criminal Investigation testified

that he discovered one .25 caliber cartridge casing within the van seized by
Tuscarawas County, Case No. 2019 AP 10 0041 3

Newcomerstown Police Department. He also testified that he assisted the

Newcomerstown Police Department by providing a gunshot residue kit and instructing the

officers on how to use the kit.

{¶7} Next, Sgt. Cheri Creager testified to a phone call made by Appellant from

the prison phones. On the call, Appellant can be heard saying, “nothin’ hit nothin’ and

they’re trying to make a bigger deal out of it than what it is.” State’s Exhibit L.

{¶8} Appellee then called Officer Opha Lawson of the Newcomerstown Police

Department to testify. Officer Lawson testified that he is familiar with Appellant. He knows

Appellant to operate a van registered to Ashley Rehard; this van was suspected of being

used in the shooting which took place at Mr. Watson’s house. Law enforcement found

both Appellant and the van at the same address. The van was seized and taken back to

the Newcomerstown Police Department. Officer Lawson further testified a gunshot

residue test was performed.

{¶9} The next witness to testify was Stephanie Ickes. Ms. Ickes testified she was

at Mr. Watson’s home on the day of the shooting providing in-home healthcare for Mr.

Watson. Ms. Ickes also testified she is familiar with Appellant. Upon hearing arguing, she

stepped outside onto the back porch. She saw Appellant either in or next to the van. As

the van moved from left to right, Ms. Ickes stated she heard a gunshot and saw Appellant

with a black handgun in his hand.

{¶10} The final witness called by Appellee was Donna Schwesinger. Ms.

Schwesinger is employed by the Ohio Bureau of Criminal Investigation. As part of her

employment she conducts gunshot residue testing. Ms. Schwesinger testified she
Tuscarawas County, Case No. 2019 AP 10 0041 4

received the gunshot residue kit for this case, and upon analyzing, determined there were

particles that were characteristic of gunshot primer residue.

{¶11} On August 7, 2019, a jury found Appellant guilty of both charges.

{¶12} On September 17, 2019, the trial judge sentenced Mr. Casteel to thirty-six

months on count one, eighteen months on count two, and an additional thirty-six months

on the firearm specification to be served consecutively for an aggregate sentence of

ninety months.

ASSIGNMENT OF ERROR

{¶13} On October 10, 2019, Appellant filed a notice of appeal. He herein raises

the following three Assignments of Error:

{¶14} “I. THE JURY’S FINDINGS OF GUILT AS TO ALL THREE CHARGES IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

{¶15} “II. APPELLANT’S CONVICTIONS FOR IMPROPER HANDLING OF

FIREARMS IN A MOTOR VEHICLE AND THE FIREARM SPECIFICATION WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

{¶16} “III. THE COURT COMMITTED REVERSABLE [sic] ERROR WHEN IT

FAILED TO CONSIDER WHETHER APPELLANT’S SENTENCES SHOULD MERGE AS

ALLIED OFFENSES UNDER ORC 2941.25.”
Tuscarawas County, Case No. 2019 AP 10 0041 5

I., II.

{¶17} In Appellant’s First and Second Assignments of Error, Appellant argues that

the jury’s guilty verdict is against the manifest weight of the evidence and not supported

by sufficient evidence. We disagree.

{¶18} Sufficiency of evidence and manifest weight of the evidence are separate

and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380. Essentially,

sufficiency is a test of adequacy. Id. A sufficiency of the evidence standard requires the

appellate court to examine the evidence admitted at trial, in the light most favorable to the

prosecution, to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio

St.3d 259.

{¶19} As opposed to the sufficiency of evidence analysis, when reviewing a weight

of the evidence argument, the appellate court reviews the entire record, weighing the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of evidence, the jury 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. Thompkins, 78 Ohio St.3d 380.

{¶20} Under the weight of the evidence argument, the appellate court shall

consider the same evidence as when analyzing the sufficiency of the evidence argument.

Appellant argues the jury clearly lost its way as their conviction of Appellant based on the

total weight of the evidence was a manifest miscarriage of justice.

{¶21} The State indicted Appellant on one count of Improperly Handling Firearms

in a Motor Vehicle in violation of R.C. 2923.16(A) with a Firearm Specification under R.C.
Tuscarawas County, Case No. 2019 AP 10 0041 6

2941.145(A), and one count of Having Weapons Under Disability in violation of R.C.

2923.13(A)(2).

{¶22} R.C. 2923.16(A) states, “No person shall knowingly discharge a firearm

while in or on a motor vehicle.”

{¶23} R.C. 2941.145(A) states:

Imposition of a three-year mandatory prison term upon an offender

under division (B)(1)(a)(ii) of section 2929.14 of the Revised Code is

precluded unless the indictment, count in the indictment, or information

charging the offense specifies that the offender had a firearm on or about

the offender’s person or under the offender’s control while committing the

offense and displayed the firearm, brandished the firearm, indicated that

the offender possessed the firearm, or used it to facilitate the offense. The

specification shall be stated at the end of the body of the indictment, count,

or information, and shall be stated in substantially the following form:

SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT).

The Grand Jurors (or insert the person’s or the prosecuting attorney’s

name when appropriate) further find and specify that (set forth that the

offender had a firearm on or about the offender’s person or under the

offender’s control while committing the offense and displayed the firearm,

brandished the firearm, indicated that the offender possessed the firearm,

or used it to facilitate the offense).
Tuscarawas County, Case No. 2019 AP 10 0041 7

{¶24} R.C. 2923.13(A) states:

Unless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordnance, if any of the following apply:

(1) The person is a fugitive from justice.

(2) The person is under indictment for or has been convicted of

any felony offense of violence or has been adjudicated a delinquent child

for the commission of an offense that, if committed by an adult, would have

been a felony offense of violence.

{¶25} At trial, the State produced evidence that Appellant was convicted of

burglary in December of 2019. The State produced witnesses that stated they are familiar

with Appellant, and they observed him operating a minivan near the home of Rex Watson

on April 20, 2018. Multiple witnesses stated they heard what sounded like a gunshot

coming from the minivan being operated by the Appellant. At least one witness testified

she saw Appellant with a gun in the minivan.

{¶26} Law enforcement testified that after seizing the van they found a used shell

casing for a bullet and discovered gunshot residue on the interior of the minivan. Law

enforcement also testified that they apprehended Appellant climbing out of a window at a

house when law enforcement attempted to speak with him after the shooting.

{¶27} Finally, the State produced a recorded phone call from the Tuscarawas

County Justice Center on which Appellant can be heard stating, “nothin’ hit nothin’ and

they’re trying to make a bigger deal out of it than what it is.” State’s Exhibit L.
Tuscarawas County, Case No. 2019 AP 10 0041 8

{¶28} We find the State produced sufficient evidence, if believed by a jury, that

Appellant knowingly discharged a firearm while in a motor vehicle and had been convicted

of a felony offense of violence. Our review of the entire record fails to persuade us that

the jury lost its way and created a manifest miscarriage of justice. Appellant was not

convicted against the manifest weight of the evidence.

{¶29} Appellant’s First and Second Assignments of Error are overruled.

III.

{¶30} In Appellant’s Third Assignment of Error, Appellant argues the trial court

committed reversible error by not concluding that he was convicted of allied offenses, and

therefore they should have merged for sentencing purposes.

{¶31} R.C. 2941.25 states:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a separate

animus as to each, the indictment or information may contain counts for all

such offenses, and the defendant may be convicted of all of them.

{¶32} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held:
Tuscarawas County, Case No. 2019 AP 10 0041 9

1. In determining whether offenses are allied offenses of similar

import within the meaning of R.C. 2841.25, courts must evaluate three

separate factors—the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the

meaning of R.C. 2841.25(B) when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports

multiple offenses may be convicted of all offenses if any one of the following

is true: (1) the conduct constitutes offenses of dissimilar import, (2) the

conduct shows that the offenses were committed separately, or (3) the

conduct shows that the offenses were committed with separate animus.

{¶33} In paragraph 26 of the opinion, the Ruff court stated:

At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant’s conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant’s conduct victimizes

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a

defendant’s conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the
Tuscarawas County, Case No. 2019 AP 10 0041 10

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable. Id.

{¶34} In State v. Sanderfer, 5th Dist. Richland No. 15CA4, 2015-Ohio-4285, ¶27,

the defendant was convicted of felonious assault with a firearm specification and having

weapons while on disability. Id. at ¶13. The defendant appealed contending these two

charges are allied offenses and the trial court erred in failing to merge them. Id. at ¶17.

This Court held having a weapon on disability occurred when the defendant acquired the

firearm, and the conduct of firing his gun at the victim was the felonious assault, done

with separate animus.

{¶35} In the case sub judice, when Appellant acquired the firearm he committed

having a weapon on disability. However, the conduct of firing the gun inside the vehicle

was done with separate animus than acquiring the underlying firearm.

{¶36} Appellant further argues the trial court failed to make a finding regarding

allied offenses, and in doing so has committed reversible error. We disagree.

{¶37} At the sentencing hearing, Appellant raised the issue of merger arguing the

weapons under disability and the improper handling of a firearm would be allied offenses

and should merge as they are substantially the same conduct. The trial court, while not

specifically stating these are not allied offenses of similar import, did inherently rule such

by sentencing Appellant separately on the offenses.
Tuscarawas County, Case No. 2019 AP 10 0041 11

{¶38} Appellant’s Third Assignment of Error is overruled.

{¶39} For the foregoing reasons, the judgment of the Court of Common Pleas of

Tuscarawas County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, J., and

Baldwin, J., concur.

JWW/b 0929