State v. Bowman

2023 Ohio 2078

• Court: Ohio Court of Appeals
• Decided: June 23, 2023
• Docket: 2023-CA-3
• Status: Published

Opinion

[Cite as State v. Bowman, 2023-Ohio-2078.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-3 : v. : Trial Court Case No. 20-CR-00084 : RICHARD M. BOWMAN : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on June 23, 2023

R. KELLY ORMSBY, III, Attorney for Appellee

RICHARD M. BOWMAN, Pro Se Appellant

.............

HUFFMAN, J.

{¶ 1} Richard M. Bowman appeals pro se from an order of the Darke County Court

of Common Pleas denying his timely petition for postconviction relief following his

conviction for aggravated murder. He argues that he was denied the right to an impartial

jury, that he was denied the right to counsel during an interview with law enforcement,

that the prosecutor engaged in misconduct by suborning perjury and offering improper -2-

opinions, and that he received ineffective assistance of counsel. Because Bowman

failed to present any competent, relevant, and material evidence outside the record in

support of his claims, his claims were barred by res judicata. The judgment of the trial

court is affirmed.

Facts and Procedural History

{¶ 2} Bowman was indicted in June 2020 for the aggravated murder of his wife of

40 years, Teresa Bowman. Bowman claimed he had found Teresa on the floor near a

ladder in the garage of their home, with a bleeding laceration on the back of her head; he

called 911 around 11:30 a.m. He advised dispatch that it appeared Teresa had hit her

head on the back of the truck after falling from the ladder. With the guidance of dispatch,

Bowman performed CPR on Teresa, and he indicated that his clothing became bloody

while doing so.

{¶ 3} The first law enforcement officer to arrive at the scene did not observe any

blood on Bowman’s person or clothing. The officer noted that Bowman wore a red long-

sleeved sweatshirt/jacket with a white emblem on the left breast plate, blue jeans, and

brown work boots/shoes. During their investigation, officers obtained surveillance video

and attempted to confirm Bowman’s story that, before the murder, he had left home at

9:30 a.m. to run multiple errands. A video obtained from a Dollar General store showed

Bowman in a dark jacket/vest and dark shoes with blue jeans, distinct from the clothing

he was wearing when police arrived at his home. Bowman and his vehicle were not

observed on other surveillance videos obtained from different locations where he claimed

to have been. -3-

{¶ 4} At the time of the murder, Bowman was in a relationship with Katherine

Marker. Brian Mader, a fellow inmate of Bowman’s at the Darke County Jail, testified at

trial that Bowman had told him that the police missed finding a two-by-four that Bowman

used to hit his wife in the head, that Bowman had burned the two-by-four along with some

clothing, that he was going to receive money from his wife’s death, and that he and Marker

wanted to find their own place to live. Marker testified that Bowman had told her that he

got blood all over his clothes when he attempted CPR on Teresa and that he burned the

bloody clothing.

{¶ 5} Autopsy results concluded that Teresa’s cause of death was strangulation.

The laceration on her head was found to be the result of blunt force trauma more likely

caused from being struck with an object than from an impact with a flat surface.

{¶ 6} Before trial, Bowman moved to suppress statements made during an

interview with law enforcement, and the court overruled the motion. A jury found him

guilty, and the trial court sentenced him to a mandatory term of life in prison with the

possibility of parole after 20 years. Bowman timely filed a direct appeal, and we affirmed

Bowman’s conviction on August 5, 2022. State v. Bowman, 2d Dist. Darke No. 2021-

CA-14, 2022-Ohio-2705. The Ohio Supreme Court declined to accept jurisdiction of

Bowman’s appeal from this Court’s judgment. State v. Bowman, 168 Ohio St.3d 1472,

2022-Ohio-4380, 199 N.E.3d 543.

{¶ 7} On November 7, 2022, Bowman filed a lengthy pro se petition for

postconviction relief pursuant to R.C. 2953.21, alleging, among other things, ineffective

assistance of counsel and that he had been denied the right to counsel while being -4-

interviewed by law enforcement. Bowman requested a hearing on his petition. The State

opposed the motion. The trial court overruled the motion without a hearing on December

29, 2022. Relying on State v. Blanton, Ohio Slip Opinion No. 2022-Ohio-3985, __ N.E.3d

__, the trial court concluded that, because new counsel had been appointed for Bowman

on his direct appeal, Bowman had been required to assert his claim of ineffective

assistance of counsel in his direct appeal; because Bowman failed to do so, res judicata

barred his claim. The court also found that Bowman’s claim regarding the denial of his

motion to suppress could have been raised in his direct appeal, because it could have

been litigated on the existing record and, as such, it was also barred by res judicata.

Arguments and Analysis

{¶ 8} Bowman’s brief does not delineate clear assignments of error. The State

construes Bowman’s brief to argue that the trial court erred in denying his petition for

postconviction relief. In his reply brief, Bowman sets forth the following four assignments

of error: “(1) 6th Amendment violation (right to an impartial jury), (2) 5th Amendment

violation (right to counsel during the interview (Miranda challenge * * *), (3) Prosecutorial

misconduct (subornation of perjury (witness) becoming unsworn witness), (4) Ineffective

assistance of counsel.” We will consider the assignments of error together.

{¶ 9} Bowman’s first assignment of error relates to the argument in his petition that

the Bowman family and the in-laws of one juror, Ms. D., had been in a lengthy feud,

rendering Ms. D. biased against him. Bowman’s second assignment of error relates to

the alleged denial of his right to counsel during an interview with law enforcement during -5-

which he was allegedly intoxicated.1 In his third assignment of error, Bowman asserts

that the prosecutor engaged in misconduct in the presentation of a fellow inmate’s

allegedly perjured testimony and in closing argument by becoming an “unsworn witness.”

{¶ 10} In his fourth assignment of error, Bowman points to multiple instances of

alleged ineffective assistance raised in Bowman’s petition, including counsel’s failure to

challenge the “biased” juror after being advised by Bowman about the family feud; failure

to present “critical evidence,” namely the clothing Bowman was allegedly wearing on the

day of his wife’s murder, which lacked any blood after performing CPR on her; failure to

object to the incriminating testimony of inmate Mader; failure to advise Bowman that he

was able to testify on his own behalf when Bowman’s testimony allegedly would have

resulted in an acquittal; failure to investigate defenses, such as his girlfriend Marker’s

potential involvement in the murder; failure to object to alleged prosecutorial misconduct

at trial in the form of improper opinions expressed by the prosecutor at closing; failure to

hire a behavioral psychologist to provide expert testimony regarding Bowman’s

impairment during his interview with law enforcement; and failure to call “important”

1 In overruling Bowman’s motion to suppress his statements to law enforcement, the trial court found, after listening to the recorded interview, that: Bowman had not been in custody at the time; that he had responded appropriately in discussing the incident and denying culpability, without any indication of slurred speech; that undue influence, coercion, or unfair tactics were not used against him; and that at no time did Bowman request an attorney. -6-

witnesses from the defense witness list.2

{¶ 11} R.C. 2953.21 governs petitions for post-conviction relief. R.C.

2953.21(A)(1)(a) provides:

A person in any of the following categories may file a petition in the court

that imposed sentence, stating the grounds for relief relied upon, and asking

the court to vacate or set aside the judgment or sentence or to grant other

appropriate relief:

(i) Any person who has been convicted of a criminal offense * * * and who

claims there was such a denial or infringement of the person’s rights as to

render the judgment void or voidable under the Ohio Constitution or the

Constitution of the United States.

{¶ 12} “A petition for ‘postconviction relief is a means by which the petitioner may

present constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting those issues is not contained in the record of the

petitioner’s criminal conviction.’ ” State v. Mott, 2d Dist. Clark No. 2021-CA-63, 2022-

Ohio-2894, ¶ 10, quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th

Dist.). The postconviction relief process is a civil collateral attack on a criminal judgment

and is not an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714

2 The record reflects that, at the start of trial proceedings, Bowman indicated in response to questions by the trial court that there had been no communication problems between him and defense counsel and that Bowman had been engaged in the pretrial process. After closing arguments, the court again expressly ascertained from Bowman that there were no communication problems between Bowman and defense counsel, that counsel was responsive to Bowman’s suggestions, and that Bowman was satisfied with defense counsel’s representation. -7-

N.E.2d 905 (1999).

{¶ 13} The petitioner “may file a supporting affidavit and other documentary

evidence in support of the claim for relief.” R.C. 2953.21(A)(1)(b). The trial court is

required to consider the petition and any supporting affidavits and documentary evidence.

R.C. 2953.21(D). “When the evidence a defendant relies upon [is] dehors the record that

evidence must meet a threshold of cogency. * * *.” State v. Hill, 2d Dist. Greene No.

2004-CA-79, 2005-Ohio-3176, ¶ 8, quoting State v. Lawson, 103 Ohio App.3d 307, 659

N.E.2d 362 (12th Dist.1995). “Cogent evidence is that which is more than ‘marginally

significant’ and advances a claim ‘beyond mere hypothesis and desire for further

discovery.’ ” Id.

{¶ 14} A postconviction relief petitioner is not automatically entitled to a hearing.

Calhoun at 282. Instead, “a trial court has a gatekeeping role as to whether a defendant

will even receive a hearing.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 51. Before granting a hearing on a petition, the trial court shall determine

whether there are substantive grounds for relief. State v. Perry, 2016-Ohio-4582, 66

N.E.3d 1109, ¶ 24 (2d Dist.). It is the petitioner’s initial burden to provide evidence

containing sufficient operative facts to show a cognizable claim of constitutional error.

State v. Kapper, 5 Ohio St.3d 36, 37-38, 448 N.E.2d 823 (1983). “A petitioner is not

entitled to a hearing if his claim for relief is belied by the record and is unsupported by

any operative facts other than [his] own self-serving affidavit or statements in his petition,

which alone are legally insufficient to rebut the record on review.” Id. “Broad conclusory

allegations are insufficient, as a matter of law, to require a hearing.” State v. Coleman, -8-

2d Dist. Clark Nos. 2004-CA-43, 2004-CA-44, 2005-Ohio-3874, ¶ 17.

{¶ 15} Res judicata is applicable in all postconviction relief proceedings. Blanton,

Ohio Slip Opinion No. 2022-Ohio-3985, __ N.E.3d __, ¶ 43. In State v. Goldwire, 2d

Dist. Montgomery No. 20838, 2005-Ohio-5784, ¶ 11, this Court discussed the role the

doctrine of res judicata plays in the analysis of petitions for postconviction relief:

“The most significant restriction on Ohio’s Statutory procedure for

post-conviction relief is that the doctrine of res judicata requires that the

claim presented in support of the petition represent error supported by

evidence outside the record generated by the direct criminal proceedings.”

State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242. “Under

the doctrine of res judicata, a final judgment of conviction bars the convicted

defendant from raising and litigating in any proceeding, except an appeal

from that judgment, any defense or any claimed lack of due process that

was raised or could have been raised by the defendant at the trial which

resulted in that judgment of conviction or on an appeal from that judgment.”

State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. “Our

statutes do not contemplate relitigation of those claims in postconviction

proceedings where there are no allegations to show that they could not have

been fully adjudicated by the judgment of conviction and an appeal

therefrom.” Id. “To overcome the res judicata bar, the petitioner must

produce new evidence that renders the judgment void or voidable, and

show that he could not have appealed the claims based upon information -9-

contained in the original record.” State v. Aldridge (1997), 120 Ohio

App.3d 122, 151, 697 N.E.2d 228. “ ‘Res judicata also implicitly bars a

petitioner from ‘repackaging’ evidence or issues which either were, or could

have been, raised, in the context of the petitioner’s trial or direct appeal.[’] ”

Monroe.

“For a defendant to avoid dismissal of the petition by operation of res judicata, the

evidence supporting the claims in the petition must be competent, relevant, and material

evidence outside the trial court record, and it must not be evidence that existed or was

available for use at the time of trial. * * *.” State v. Jackson,10th Dist. Franklin Nos.

06AP-631, 06AP-668, 2007-Ohio-1474, ¶ 21.

{¶ 16} “We review a trial court’s denial of post-conviction relief under R.C. 2953.21

for an abuse of discretion * * *.” State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885

N.E.2d 905, ¶ 45. “The term ‘abuse of discretion’ has been defined as a decision that is

unreasonable, arbitrary, or unconscionable.” (Citation omitted.) State v. Howard, 2d

Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8.

{¶ 17} Before addressing Bowman’s assigned errors, we note that pro se litigants

are presumed to have knowledge of the law and of correct legal procedure and are held

to the same standard as other litigants. State v. Grieco, 2d Dist. Montgomery No. 28822,

2021-Ohio-735, ¶ 20. Bowman is accordingly bound by any errors of his own making.

{¶ 18} Bowman’s pro se petition for postconviction relief was presented in the form

of a lengthy narrative criticizing multiple aspects of his trial, with no supporting affidavits.

He attached motions for appointment of counsel and for expert assistance; an affidavit of -10-

indigence; a copy of his and Teresa’s mortgage; correspondence from an animal clinic

related to the death of the Bowman’s dog after ingesting rat poison prior to Teresa’s

murder; two pages of this Court’s decision affirming his conviction related to Mader’s

testimony; a hand-drawn diagram by Bowman of the placement of Teresa’s body when

he allegedly found her in the garage; and photos of clothing he allegedly wore at the time

he found Teresa.

{¶ 19} We conclude that Bowman failed to comply with the statutory requirements

for postconviction relief, and his arguments were all barred by res judicata. Bowman’s

petition did not contain any supporting evidentiary documents containing operative facts

that would, if proven, establish a substantive ground for relief. He also did not rely on

any evidence that did not exist or was not available to him for use at trial or on appeal.

The bases of Bowman’s claims were or should have been known to him at the time of

trial but were not presented then or in his direct appeal. The broad, self-serving

statements in Bowman’s petition were insufficient to rebut the record. Accordingly,

Bowman failed to advance his claims beyond mere hypothesis and a desire for extended

discovery. The trial court did not abuse its discretion in denying Bowman’s petition.

Bowman’s four assignments of error are overruled.

Conclusion

{¶ 20} The judgment of the trial court is affirmed.

EPLEY, J. and LEWIS, J., concur. -11-