State v. Barker

945 N.E.2d 1107, 191 Ohio App. 3d 293
CourtOhio Court of Appeals
DecidedNovember 24, 2010
DocketNo. 23691
StatusPublished
Cited by5 cases

This text of 945 N.E.2d 1107 (State v. Barker) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barker, 945 N.E.2d 1107, 191 Ohio App. 3d 293 (Ohio Ct. App. 2010).

Opinion

Brogan, Judge.

{¶ 1} On the night of September 30, 2006, Shelly Turner asked her mother, Freda Ann Howard, to watch her two young sons while she went with Harold Barker, her flaneé, to Shag’s Bar for a drink. Her mother agreed, and Turner, taking with her only an ATM card, left. That was the last time Howard saw her daughter.

{¶ 2} Later that night, Barker returned to Howard’s home alone. He told Howard that as he and Turner were leaving Shag’s, a man drove up in a gray Grand Am and called out, “Hi, Shelly,” and Turner replied, “Hi Bill.” Turner went over to the car and began talking with “Bill.” After a couple minutes, Barker said, he asked Turner whether she was walking or riding home. According to Barker, Turner walked over to him, calmly took off her engagement ring, and handed it to him. She then walked back to the car, got in, and “Bill” drove away. That was the last time Barker says he saw Turner.

{¶ 3} No one has seen or heard from Turner since that night in 2006. Nor, despite a broad search by police with cadaver dogs, has her body ever been found.

{¶ 4} It was not until 2009 that Barker was indicted for Turner’s murder. He was charged with felonious assault causing serious physical harm, in violation of R.C. 2903.11(A)(1); felony murder, in violation of R.C. 2903.02(B); and tampering with evidence, in violation of R.C. 2921.12(A)(1). At trial later that year, the state presented the testimony of two witnesses who both said that Barker had confessed to them that he killed Turner. A jury found him guilty of all three offenses. And the trial court sentenced Barker to prison — eight years for felonious assault, 15 years to life for felony murder, and five years for tampering with evidence — for a total of 28 years to life.

{¶ 5} Barker appeals his conviction and sentence.

I

{¶ 6} Barker assigns two errors to the trial court. In the first assignment of error, he argues that the court erred by convicting him. And in the second assignment of error, he contends that felonious assault and felony murder are allied offenses, so he could not be convicted for both, and the court should have merged them for sentencing purposes.

A. First Assignment of Error

{¶ 7} “The trial court erred in convicting appellant of felonious assault, felony murder and tampering with evidence.”

[297]*297{¶ 8} Barker argues three reasons why his convictions are erroneous: (1) the court admitted his confessions in violation of the corpus delicti rule, (2) the convictions are not supported by sufficient evidence, and (3) the convictions are contrary to the manifest weight of the evidence.

1. The corpus delicti rule is satisfied

{¶ 9} Barker contends that the trial court should not have admitted his confessions, because the corpus delicti rule had not been satisfied. This rule of evidence says that before a defendant’s confession to an offense may be admitted at trial, some evidence must already have been admitted, independent of the confession, that tends to establish the corpus delicti of the offense. State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, at paragraph lb of the syllabus (“There must be some evidence in addition to a confession tending to establish the corpus delicti, before such confession is admissible”); see State v. Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, at ¶ 71 (To satisfy the corpus delicti rule “the state’s evidence * * * must ‘tend to prove’ ” the corpus delicti). Originally, “[t]he corpus delicti rule was formed to prevent the conviction and punishment of persons who confessed to murdering someone who was never in fact murdered.” State v. Nobles (1995), 106 Ohio App.3d 246, 262-263, 665 N.E.2d 1137. But now the rule “applie[s] to all crimes.” Id. at 263, 665 N.E.2d 1137. The Ohio Supreme Court has said, however, that the corpus delicti rule is not to be applied “ ‘with a dogmatic vengeance,’ ” Gabriel at ¶ 58, quoting Edwards at 36, 3 O.O.3d 18, 358 N.E.2d 1051, as the court believes that the rule has “limited utility.” State v. Black (1978), 54 Ohio St.2d 304, 308, 8 O.O.3d 296, 376 N.E.2d 948, citing Edwards, at 35-36, 3 O.O.3d 18, 358 N.E.2d 1051 (“Considering the revolution in criminal law of the 1960’s and the vast number of procedural safeguards protecting the due-process rights of criminal defendants, the corpus delicti rule is supported by few practical or social-policy considerations. This court sees little reason to apply the rule with a dogmatic vengeance”). “The corpus delicti of a crime is the body or substance of the crime.” Edwards at paragraph la of the syllabus. The body of a crime usually includes two elements: “(1) the act and (2) the criminal agency of the act.” Id.

{¶ 10} The corpus delicti rule imposes on the evidence a rather low standard. See Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, at ¶ 58. The evidence “of itself, need not be equal to proof beyond a reasonable doubt nor even make a prima facie case.” Black, 54 Ohio St.2d 304, 8 O.O.3d 296, 376 N.E.2d 1137, at the syllabus. Furthermore, “the evidence need not be direct but, rather, may be circumstantial.” Gabriel at ¶ 58, citing State v. Nicely (1988), 39 Ohio St.3d 147, 152, 529 N.E.2d 1236. Under the standard, the admitted evidence is sufficient if it “ ‘tends to prove some material element of the crime [298]*298charged.’ ” Black at 307, quoting State v. Maranda (1916), 94 Ohio St. 364, 114 N.E. 1038, at paragraph two of the syllabus.

{¶ 11} Here, then, before Barker’s confessions could be admitted at trial, some evidence must have been admitted that is independent of the confessions that tends to prove some material element of each offense. As we will explain in our review of the second alleged error, the felony-murder charge here incorporates the charge for felonious assault, so Barker cannot be convicted of both; therefore, we need to examine the rule with respect only to felony murder. We conclude that the prior-admitted evidence satisfies the rule for both offenses.

{¶ 12} The evidence tends to prove that Turner is dead. The corpus delicti of murder is “(1) the fact of death and (2) the existence of the criminal agency of another as the cause of death.” State v. Manago (1974), 38 Ohio St.2d 223, 67 O.O.2d 291, 313 N.E.2d 10, at paragraph one of the syllabus; see R.C. 2903.02(B) (defining felony murder) (“No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Ramey
2024 Ohio 2650 (Ohio Court of Appeals, 2024)
State v. Ashe
2016 Ohio 136 (Ohio Court of Appeals, 2016)
State v. Cook
2013 Ohio 5081 (Ohio Court of Appeals, 2013)
State v. Huelsman
2012 Ohio 2104 (Ohio Court of Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
945 N.E.2d 1107, 191 Ohio App. 3d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barker-ohioctapp-2010.