State v. Cottrell

[Cite as State v. Cottrell, 2023-Ohio-3932.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-11-014

: OPINION
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:

JEREMY B. COTTRELL, :

Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20220095

Steven H. Eckstein, for appellant.

Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.

PIPER, J.

Introduction

{¶ 1} On April 22, 2022, appellant, Jeremy Cottrell, was indicted in the Fayette

County Court of Common Pleas on four counts of aggravated murder, two counts of murder,

and one count of kidnapping.1 The charges stemmed from the death of Annette Lowery,

1. The indictment also included one count of aggravated burglary and one count of trespassing; however, the
state dismissed those charges prior to trial.
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Cottrell's girlfriend at the time, and the death of their unborn child.2 Cottrell pled not guilty

to the charges and the matter proceeded to a three-day jury trial on October 18, 2022. The

jury found Cottrell guilty on all counts and Cottrell now timely appeals from his conviction.

Facts and Procedural History

{¶ 2} The charges of the indictment arose from events that occurred on March 3,

2022. The testimony at trial revealed that on March 3, 2022, at approximately 11:20 a.m.,

law enforcement officers with the Washington Court House Police Department responded

to a possible suicide at the City Motel in Washington Court House, Ohio. Upon arriving,

officers spoke with the owner of the motel who indicated a motel employee had discovered

an unresponsive woman lying face down on the bed in Room 18. After entering Room 18,

officers observed the victim, who was later identified as Lowery, lying on the bed furthest

from the door with a significant amount of blood near her head. Officers confirmed Lowery

did not have a pulse and noted that she was cold to the touch.

{¶ 3} Given their initial observations of the scene, including the position of Lowery,

her visible injuries, and a pocketknife laying in plain view on the bed, law enforcement

concluded the scene was not typical for a suicide. As a result, the lead detective obtained

a search warrant and contacted the Fayette County Coroner and Bureau of Criminal

Investigation ("BCI") to process the scene.

{¶ 4} Dr. Lenora Fitton, the Fayette County Coroner, testified that she was

dispatched to the City Motel for a possible homicide. Upon observing the scene, Dr. Fitton

was initially concerned with Lowery's position on the bed, including the placement of her

arms and hands. According to Dr. Fitton, Lowery's position was not indicative of a

"protective fall," during which Lowery would have braced for contact with the bed. It also

2. Counts I, III, V and VII of the indictment related to the death of Lowery, while Counts II, IV, and VI related
to the unlawful termination of Lowery's pregnancy.

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did not appear to Dr. Fitton that Lowery was "in control of the situation" when she fell onto

the bed.

{¶ 5} After completing an assessment of Lowery as she laid, Dr. Fitton turned

Lowery over to look for additional physical trauma or injuries. At that time, Dr. Fitton

observed a very large, gaping wound in Lowery's neck, in addition to a smaller neck wound

and other lacerations and trauma to her face. To the right of the large neck wound, Dr.

Fitton observed a "frothy area," which was a result of blood mixing with air bubbles as

Lowery had attempted to breathe. Dr. Fitton indicated Lowery was still breathing after the

wound was inflicted and that blood was falling into her windpipe at that time. Lowery also

exhibited bruising to her face and eyes, and there was evidence she had been strangled.

{¶ 6} After assessing the injuries, Dr. Fitton determined Lowery's cause of death

was multiple sharp force trauma with strangulation. Dr. Fitton did not consider suicide as a

possible cause of death due to the nature of Lowery's neck wounds and that there were no

hesitation marks present. Instead, because of the angle and nature of the cuts, Dr. Fitton

was of the opinion that the stabbing occurred from behind Lowery, with a knife consistent

with the pocketknife found at the scene. Based upon Lowery's loss of blood, lividity, rigor

mortis, and "frothing," Dr. Fitton determined Lowery's wounds occurred within one hour of

11:30 a.m.

{¶ 7} After Dr. Fitton's examination at the scene, Lowery's body was transferred to

Montgomery County Coroner Services for an autopsy. The forensic pathologist who

performed the autopsy on Lowery testified at trial. During her testimony, the pathologist

described Lowery's various injuries, including blunt force trauma, bruises to her forehead,

eye, cheek, nose, ear, upper-lip, and the surface of her neck. The pathologist explained

that given the amount of bruising, she believed Lowery had been hit by a blunt object or

hand multiple times. Lowery also had multiple cuts and stab wounds including multiple

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superficial cuts on her forehead, cheeks, and the surface of her neck, as well as two stab

wounds on her neck and one on her left temple. One of the neck wounds was more than

one-inch wide and punctured Lowery's windpipe and esophagus. This puncture led to the

development of a "frothy foam cone" in her neck as Lowery breathed in blood. The second

neck wound was deep enough to touch Lowery's spinal column, while the final stab wound

to Lowery's temple was approximately two inches deep and went into her skull. Lowery

also exhibited signs of strangulation including petechiae in the eyes and bruising to the

outside of her neck. Based upon her observations of Lowery's injuries, the pathologist

concluded Lowery's cause of death was multiple stab wounds and strangulation.

{¶ 8} Although Lowery was not visibly pregnant at the time of her death, the autopsy

revealed that she was pregnant with an approximately 18 to 20-week-old male fetus. The

pathologist testified the fetus was healthy and growing prior to the death of Lowery, and

that she did not observe any signs of natural disease or injury that could have caused his

death prior to Lowery's death. Subsequent DNA testing on the fetus revealed that Cottrell

was the fetus's biological father.

{¶ 9} While investigating the events leading to Lowery's death, a detective with the

Washington Court House Police Department learned that Lowery checked into the City

Motel on the evening of March 1, 2022. Video footage played for the jury showed Lowery

checking into the motel, while an unknown person waited in her vehicle. The following

evening, a motel tenant heard a man and woman arguing in Room 18. According to that

tenant, the arguing continued throughout the night. The following morning, on March 3, a

separate motel tenant heard a man and woman arguing in the vicinity of Room 18

approximately 90 minutes before law enforcement arrived. The tenant testified that during

the argument he heard the woman crying followed by silence.

{¶ 10} The owner of the motel provided the detective with the motel's security

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camera footage. The footage began at approximately 10:35 a.m. on March 2, 2022, and

showed a man consistent with the description of Cottrell exiting Room 18 at approximately

10:50 a.m. The man was wearing boots, blue jeans, and a black t-shirt, and could be seen

leaving Room 18, entering a dark colored sedan, which was later identified as Lowery's

2005 Chevy Impala, and driving away. No other individuals were seen entering or leaving

Room 18 between 10:35 a.m. and 10:52 a.m.

{¶ 11} Thereafter, a deputy with the Highland County Sheriff's Office was notified

that Lowery's Chevy Impala had been seen at the Walmart service center in Hillsboro.

Officers were dispatched to the Hillsboro Walmart where they searched for Cottrell inside

the store and monitored the vehicle. Law enforcement obtained security camera footage

from Walmart which showed a barefooted-Cottrell entering the store in blue jeans and a

black t-shirt. After learning that Cottrell had entered Walmart shoeless, a detective with the

Washington Court House Police Department recalled seeing a pair of brown boots on the

side of the road between Hillsboro and the police station. Believing the boots had been

"ditched" due to their evidentiary value, the boots were retrieved by law enforcement and

sent to BCI. Subsequent DNA testing confirmed that both boots contained traces of

Lowery's blood.

{¶ 12} After officers confirmed the vehicle at the Hillsboro Walmart belonged to

Lowery, the car was towed to the Washington Court House police department and

processed. Inside the vehicle was an empty men's shoebox and a Hillsboro Walmart receipt

for men's boots. The receipt displayed a timestamp of 11:56 a.m. and was dated March 3,

2022.

{¶ 13} While at the Hillsboro Walmart, the Highland County deputy was alerted that

a dark cherry Chevy Trax had been stolen from a Speedway in Hillsboro. The deputy left

Walmart and began to patrol in an attempt to locate the recently stolen vehicle. While

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heading northbound on State Route 753 towards Greenfield, the deputy observed a small

chevy SUV occupied by a driver whose appearance matched the description provided for

Cottrell. The deputy proceeded to follow the suspect vehicle, and after confirming the

suspect vehicle was the vehicle stolen from Speedway, the deputy initiated a traffic stop.

The suspect vehicle stopped, and the driver immediately opened the driver's side door and

exited the vehicle. At that point, the deputy verified the individual was Cottrell. Cottrell

informed the deputy that he had stolen the small Chevy because his girlfriend's vehicle was

parked at Walmart with a flat tire. Cottrell was then arrested and placed in police custody.

{¶ 14} At trial, the deputy identified Cottrell as the man he arrested that day and

testified Cottrell was wearing a black shirt and blue jeans at the time of his arrest. Cottrell's

clothing was collected and sent to BCI for DNA testing. DNA testing revealed Lowery's

blood on the back pocket of Cottrell's blue jeans. After reviewing the motel's security

footage, the deputy confirmed the clothing worn by Cottrell at the time of his arrest was

consistent with what the man seen leaving Room 18 was wearing.

{¶ 15} While the above investigation was developing, Kevin Wagner, a BCI agent

with the BCI Crime Scene Unit, was processing Room 18 at the City Motel. Wagner testified

at trial regarding his processing of the scene which included fingerprinting various items

and collecting swabs and items for DNA testing. As a result of Wagner's collection of

evidence, several items were subjected to DNA testing, including the pocketknife located

on the bed near Lowery, washcloths found in the bathroom, a pair of socks found near the

bed, and Lowery's blue jeans. Relevant here, the DNA testing revealed that Lowery's blood

was on the blade and handle of the pocketknife, and that the knife's handle contained Y-

STR DNA consistent with Cottrell's.

{¶ 16} At the close of the state's case-in-chief, Cottrell moved the trial court for a

Crim.R. 29 judgment of acquittal on all counts. Regarding the aggravated murder counts,

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Cottrell argued the state failed to provide any evidence of prior calculation and design, and

that the state had likewise failed to provide any evidence of prolonged restraint to support

a kidnapping offense. The trial court denied Cottrell's motion and Cottrell proceeded to

present one witness to testify in his defense. Cottrell's witness was a tenant of the motel

on March 3, 2022, and testified that he informed the officers that he may have heard more

than one male voice arguing with the woman in Room 18 that morning. After the jury retired

to deliberate, Cottrell renewed his Crim.R. 29 motion, which was again denied by the trial

court.

{¶ 17} After considering all the evidence, the jury found Cottrell guilty of all seven

remaining counts of the indictment. For the purposes of sentencing, the trial court merged

Counts I (aggravated murder), V (murder), and VII (kidnapping) into Count III, aggravated

murder in violation of R.C. 2903.01(B).3 The trial court also merged Counts II (aggravated

murder) and VI (murder) into Count IV, aggravated murder in violation of R.C. 2903.01(B).

The trial court entered convictions for aggravated murder in Counts III and IV, and

sentenced Cottrell to consecutive life sentences without the possibility of parole.

The Appeal

{¶ 18} Cottrell now appeals, raising the following assignment of error for our review:

{¶ 19} THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-

APPELLANT'S CRIM.R. 29 MOTION FOR ACQUITTAL AS THE EVIDENCE PRESENTED

WAS INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A

REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR

TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE

3. As noted above, Counts I, V, VII, and III related to the death of Lowery, while Counts II, IV, and VI related
to the unlawful termination of Lowery's pregnancy.

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OHIO CONSTITUTION.

{¶ 20} On appeal, Cottrell argues the trial court erred in denying his Crim.R. 29

motion for acquittal because his convictions for aggravated murder and kidnapping were

not supported by sufficient evidence. Regarding the charges for aggravated murder

pursuant to R.C. 2903.01(A), i.e., Counts I and II, Cottrell claims the state failed to prove

Lowery's murder involved prior calculation and design. Regarding the charges for

aggravated murder pursuant to R.C. 2903.01(B) and kidnapping, i.e., Counts III, IV, and VII,

Cottrell claims the state failed to establish any separate animus for kidnapping. After our

review, we find no merit to Cottrell's claims.

{¶ 21} "The standard of review for a denial of a Crim.R. 29(A) motion for acquittal is

the same as the standard of review for a sufficiency of the evidence claim." State v. Wilson,

12th Dist. Fayette No. CA2021-10-023, 2022-Ohio-1146, ¶ 27, citing State v. Robinson,

12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 37. "Whether the evidence

presented is legally sufficient to sustain a verdict is a question of law." State v. Kaufhold,

12th Dist. Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 9, citing State v. Grinstead, 194

Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). "The relevant inquiry is '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. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-244, ¶ 39, quoting

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. This test "requires

a determination as to whether the state has met its burden of production at trial." State v.

Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34.

{¶ 22} As an initial matter, the trial court entered convictions for and sentenced

Cottrell on two counts of aggravated murder pursuant to R.C. 2903.01(B). Although the

jury found Cottrell guilty of two additional counts of aggravated murder pursuant to R.C.

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2903.01(A), he was never sentenced on those charges because they were merged with the

R.C. 2903.01(B) aggravated murder charges. "'Absent the imposition of sentence on each

and every offense for which [a defendant] was convicted, there is no final appealable order.'"

State v. Garner, 11th Dist. Trumbull No. 2002-T-0025, 2003-Ohio-5222, ¶ 7, quoting State

v. Collins, 8th Dist. Cuyahoga No. 79064, 2001 Ohio App. LEXIS 4666 (Oct. 18, 2001).

Without a final, appealable order, this court does not have jurisdiction to address the

sufficiency of the aggravated murder counts brought pursuant to R.C. 2903.01(A). As such,

Cottrell's challenge to the sufficiency of the evidence supporting those charges is unripe for

this court's review. State v. Petromilli, 11th Dist. Lake No. 2016-L-071, 2018-Ohio-2574, ¶

15 (finding the appellant's Crim.R. 29 and sufficiency challenge to a merged crime unripe

for appellate review); see also State v. Hendrix, 1st Dist. Hamilton Nos. C-120194 and C-

150200, 2016-Ohio-2697, ¶ 42, citing Columbus v. Ziegler, 10th Dist. Franklin Nos. 91AP-

1058, 91AP-1070 and 91AP-1071, 1992 Ohio App. LEXIS 1023 (Mar. 3, 1992) (in a criminal

case, no final, appealable order exists from an offense that has been merged for the

purposes of sentencing); Crim.R. 32(C).

{¶ 23} Turning to the sufficiency of the evidence produced to support Cottrell's

convictions for aggravated murder pursuant to R.C. 2903.01(B), that statute states that "[n]o

person shall purposely cause the death of another or the unlawful termination of another's

pregnancy while committing or attempting to commit * * * kidnapping[.]" According to R.C.

2905.01(B)(2), the kidnapping offense with which Cottrell was charged, "[n]o person, by

force, threat, or deception, * * * shall knowingly do any of the following, under circumstances

that create a substantial risk of serious physical harm to the victim * * * (2) Restrain another

of the other person's liberty."

{¶ 24} Cottrell argues his convictions are supported by insufficient evidence, and the

trial court erred in denying his motion for acquittal, because the state failed to prove that

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Cottrell's restraint or movement of Lowery was anything but incidental to the underlying

crime of murder. Essentially, Cottrell claims the state failed to prove the "commission or

attempted commission of kidnapping" element of R.C. 2903.01(B). In support of his

argument, Cottrell relies upon R.C. 2941.25, and claims that the restraint of Lowery did not

have any significance independent of her murder, and therefore, the kidnapping was not

committed with an animus separate from the aggravated murder, and he should have been

acquitted on those charges.

{¶ 25} After our review of the record, we find Cottrell's argument unpersuasive. As

noted above, in order to convict Cottrell of aggravated murder pursuant to R.C. 2903.01(B),

the state was required to prove that Cottrell purposely caused the death of Lowery, and

unlawfully terminated her pregnancy, while committing or attempting to commit kidnapping.

Accordingly, while Cottrell's kidnapping or attempted kidnapping of Lowery is a necessary

element of aggravated murder in this case, the sufficiency of a conviction for that crime

does not concern whether his charges of aggravated murder and kidnapping are allied

offenses of similar import pursuant to R.C. 2941.25(A). See, e.g., State v. Watts, 8th Dist.

Cuyahoga No. 108707, 2020-Ohio-3282, ¶ 64-66 (indicating the sufficiency of the evidence

supporting the appellant's aggravated murder and kidnapping convictions is distinct from

whether he could be sentenced on both offenses). Instead, the question is whether a

reasonable juror could find the state sufficiently proved each and every element of R.C.

2903.01(B), including the commission or attempted commission of kidnapping.

{¶ 26} In this case, there is no question that Cottrell's conduct supports his

aggravated murder conviction. At trial, the state presented evidence that Cottrell and

Lowery were alone in Room 18 between March 2 and March 3, 2023. During that time, the

couple engaged in a lengthy argument that continued throughout the evening of March 2,

and ended with Lowery crying before becoming silent on the morning of March 3. While in

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Room 18, Lowery was hit in the head and neck area by a blunt object or hand multiple times

and was strangled. While Lowery's face and neck contained numerous lacerations there

were also substantial punctures from the pocketknife. One puncture wound to her neck

penetrated her windpipe and esophagus, and the other penetrated to her spine. A

penetration to her temple protruded two inches into her skull.

{¶ 27} The pocketknife's handle contained Y-STR DNA consistent with Cottrell's, and

Lowery's blood was located on the blade. Lowery's blood was also found on Cottrell's jeans

and the men's boots found on the side of the road. The coroner testified the stabbing and

strangulation ultimately caused Lowery's death and were not consistent with suicide. The

coroner further testified the injuries occurred within one hour of 11:30 a.m., during which

time Cottrell left Room 18 and drove away in Lowery's vehicle. When considering the

above, including the evidence that Cottrell and Lowery were alone in Room 18 and that her

injuries were inconsistent with a suicide, a reasonable juror could conclude that Cottrell

purposely caused Lowery's death with the pocketknife and purposely terminated her

pregnancy.

{¶ 28} It is also clear from the record that Lowery's death was a proximate result of

a kidnapping. This court has construed the "restraint of liberty" element to mean "to limit

one's freedom of movement in any fashion for any period of time." In re E.T.H., 12th Dist.

Butler No. CA2018-04-064, 2019-Ohio-79, ¶ 17, citing State v. Martin, 10th Dist. Franklin

Nos. 02AP-33 and 02AP-34, 2002-Ohio-4769, ¶ 32. Moreover, "'[p]roof of the restraint of

another's liberty does not need to show that such restraint was of a particular duration * * *

or was accomplished in a particular manner.'" (Citations omitted.) State v. Hart, 12th Dist.

Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 45, quoting Martin at ¶ 32. Rather,

[m]omentary restraint is sufficient to qualify as restraint; the duration of the restraint does

not have to be prolonged. State v. Hackett, 7th Dist. Mahoning No. 17 MA 0106, 2019-

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Ohio-1091, ¶ 84.

{¶ 29} In this case, the state presented evidence that Cottrell's actions necessarily

resulted in a restraint of Lowery's liberty for the purpose of killing her. The record reflects

Lowery was stabbed in the neck from behind and did not have control when she fell onto

the bed. One of these cuts was more than one-inch wide, while the other was deep enough

to touch her spinal column. Lowery was alive and breathing after she was stabbed in the

neck and throat, as the evidence shows the knife punctured her windpipe, which then filled

with blood and air as Lowery struggled to breathe. Lowery was also strangled, beaten, and

cut on the face and neck during the couple's altercation. Given the nature, number, and

severity of Lowery's injuries, in addition to the fact that Cottrell possessed the pocketknife

and was behind Lowery while stabbing her, a reasonable juror could conclude that Cottrell

limited Lowery's freedom of movement and used force to restrain Lowery's liberty to further

commit these aggravated murders.

{¶ 30} Upon viewing the evidence in the light most favorable to the prosecution, a

rational juror could have found the elements of aggravated murder under R.C. 2903.01(B)

proven beyond a reasonable doubt. That is, there was sufficient evidence that Cottrell

committed a kidnapping which directly led to the murder of Lowery and the unlawful

termination of her pregnancy. Therefore, the trial court properly denied Cottrell's Crim.R.

29 motion and Cottrell's assignment of error is overruled.

{¶ 31} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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