State v. Carosiello

2017 Ohio 8160

• Court: Ohio Court of Appeals
• Decided: October 5, 2017
• Docket: 15 CO 0017
• Status: Published

Opinion

[Cite as State v. Carosiello, 2017-Ohio-8160.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 CO 0017 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) NICOLAS CAROSIELLO ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2013 CR 190

JUDGMENT: Affirmed.

APPEARANCES: For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. John E. Gamble Atty. Tammie Riley Jones Assistant Prosecuting Attorneys 105 South Market Street Lisbon, Ohio 44432

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Francisco E. Lüttecke Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Stephen A. Yarbrough, of the Sixth District Court of Appeals, sitting by assignment. (Retired) Dated: October 5, 2017 [Cite as State v. Carosiello, 2017-Ohio-8160.] WAITE, J.

{¶1} Appellant Nicolas J. Carosiello appeals an April 13, 2015 Columbiana

County Common Pleas Court judgment entry finding him guilty of aggravated murder,

tampering with evidence and possession of drugs. Appellant was also found guilty of

the attendant firearm specifications. Appellant argues that the state failed to provide

sufficient evidence to show that he acted with prior calculation and design.

Additionally, Appellant argues that the state failed to rebut the presumption that he

acted in accordance with the “castle doctrine.” Appellant also argues that his

conviction is against the manifest weight of the evidence. For the reasons that follow,

Appellant’s arguments are without merit and the judgment of the trial court is

affirmed.

Factual and Procedural

{¶2} Appellant is a known drug dealer who kept large amounts of marijuana

and cash inside his residence, which is located in Wellsville. (12/29/15 Trial Tr., pp.

726, 892, 965.) On August 11, 2011, four people intended to break into his house to

steal his drugs and money. Id. at pp. 733, 896, 967. This group of would-be thieves

consisted of Holly Carosiello (the victim and Appellant’s estranged wife), Jamie

Adkins (Holly’s brother), Jordan Gainer (Holly’s cousin), and Johnny Paroda (Holly’s

cousin). Id. at pp. 896-899, 767. However, when they arrived at Appellant’s house,

they saw people inside and left.

{¶3} The next morning, the group initiated a second attempt to break into

Appellant’s house. Id. at pp. 734. This time Holly was absent and the group was

joined by Raymont Bryant, Tonya Sinkbeil and her niece. Jordan knocked on -2-

Appellant’s back door and entered the house. Id. at p. 1214. On opening the door,

he encountered Appellant’s mother and a large aggressive dog. Jordan identified

himself as a friend of Appellant and asked if he was home. When Appellant’s mother

angrily ordered him out of the house, he left.

{¶4} Appellant’s mother called him to tell him that someone had entered their

house looking for him. Appellant phoned several acquaintances in an attempt to

identify this person. Around 4:00 p.m., Johnny called Appellant and told him that

Jamie, Jordan, and Raymont had been to his house to steal his drugs and money,

and that they would be back. He did not tell Appellant that he was involved.

{¶5} Appellant asked Johnny to find out when the thieves planned to return.

Id. at p. 906. Meanwhile, Appellant called his brother, Tony Carosiello, and his

friend, Brian Specht, and asked them to come to the house. Id. at p. 742. Brian

brought his girlfriend. Appellant’s girlfriend, Martina Michael, was also present.

Appellant hid his money and moved his drugs deep into a barn on the property. He

moved all the cars to a field behind the house. Id. at pp. 742, 1094, 1355.

Appellant’s goal was to create the appearance that the house was empty. Appellant

and his friends then concealed themselves in the field behind the house and waited

for the thieves to arrive. Id. at pp. 743, 864. Appellant, who was armed with a rifle

and a handgun, maintained contact with Johnny. Id. at pp. 749, 864, 907-909, 1279-

1280. Appellant’s mother and stepfather waited inside the house. The stepfather

was armed with a gun. -3-

{¶6} Appellant instructed Johnny to tell Jamie that he would be out of the

house for a few hours and that his mother and stepfather were out of town for a

funeral. Johnny continually updated Appellant as to whether and when the thieves

would arrive. At some point, Appellant believed that they were not coming, and his

friends left. Appellant went inside to watch television with Martina, his mother, and

his stepfather.

{¶7} Around 9:30 p.m., Johnny called Appellant and told him that the thieves

were on their way to the house after all. Appellant told Martina to call Tony and

instruct him to stay away from the house, because he knew the thieves would not

return if they saw Tony. Id. at p. 752. Tony told Appellant that a red Sunfire he

believed to be Holly’s, and carrying a group of people, passed his car. Id. at pp. 753,

1035-1036, 1098. Appellant also texted Brian and told him not to come to the house.

Brian texted in reply: “[k]ill those m* * * f* * *ers.” Id. at p. 871.

{¶8} Holly drove past Appellant’s house and the thieves determined that the

house appeared empty. This group now included Holly, her boyfriend Josh Rudder,

Jamie, and Dustin Green. Jamie texted Johnny to ensure that no one was home and

Johnny swore that the house was empty. Id. at p. 978. Josh stayed in the car and

drove off, leaving Holly, Jamie, and Dustin at the house. Dustin stayed on one side

of the house as a lookout. Jamie knocked on the back door. When no one

answered, Jamie unsuccessfully tried to kick down the door. Id. at p. 980. When his

efforts failed, he and Holly decided to lift her to Appellant’s window, which was above

the back door, so that she could climb inside the house. Jamie attempted to push in -4-

an air conditioner unit that was sitting in the window. Id. at p. 983. At first, he was

met with resistance. Then, suddenly, the unit slid smoothly inside the house. While

this was occurring, Appellant was waiting in his room, armed with a .22 caliber pistol.

Id. at p. 1294.

{¶9} Once the air conditioner was out of the way, Jamie lifted Holly to the

window. Id. at p. 984. She had managed to climb partially inside when Appellant

fired his gun. The shot hit Holly between her eyes. Jamie saw a flash as Holly fell

out of the window and landed on a cement staircase that led to the basement.

Appellant then leaned out of his window, firing his gun several times and yelling,

“[y]ou robbed the wrong house.” Id. Jamie tried to get to Holly, but when he saw the

back door open, he and Dustin fled as Appellant fired into the backyard. Shortly

thereafter, Martina went outside and heard Appellant say, “[o]h, my God, I shot

Holly.” Id. at p. 756.

{¶10} Martina called Tony and told him, “I think [Appellant] just shot Holly.” Id.

at p. 1100. Shortly thereafter, Tony arrived with his girlfriend Roxanne Lucas and a

friend, Michael Johnston. When they arrived, Martina was crying and said, “Holly is

dead.” Id. at p. 1064. Roxanne, who is a nurse, checked Holly and told Appellant to

call 911, because she thought she felt a faint pulse. Id. at p. 1066. Appellant told his

family, “[y]ou can’t tell them I shot her. Don’t tell them I shot her.” Id. at p. 761. He

also tried to convince his mother and Martina to tell the police that they shot Holly.

Appellant was apparently prohibited from being in possession of a gun due to a

previous criminal conviction. Shortly thereafter, Tony left, and Appellant and his -5-

stepfather began hiding the drugs and putting their guns away. At some point,

Appellant’s stepfather did call 911.

{¶11} The first responder to arrive was Officer Scott Angelo of the Ohio

Department of Natural Resources. Id. at p. 453. He heard the call on his radio and

offered to assist at the scene. He testified that Appellant and his stepfather were

outside and Appellant’s mother and Martina were inside the house when he arrived.

He asked Martina and Appellant’s mother to exit the house, since he was under the

impression that an intruder may have been inside. Deputy Kevin Shulas was the

next to arrive at the scene. Both Officer Angelo and Dep. Shulas testified that

Appellant seemed calm and collected and that no one in the family told them that

there had been a shooting. Id. at pp. 488, 539.

{¶12} Appellant initially told investigators that he had heard no gunshots

during the encounter. Ultimately, he made four statements to investigators which he

later admitted were untruthful. In these statements, he claimed that he saw a man in

the house and he assumed that man killed Holly. However, several witnesses came

forward and implicated Appellant in the shooting. One of these witnesses was his

girlfriend. Sometime later, Appellant’s attorney convinced him to give a truthful

statement. While he admitted to Det. Allan Young that he shot Holly, he claimed to

have wildly fired his shot at a “shadow.”

{¶13} Appellant was charged with one count of aggravated murder, an

unspecified felony in violation of R.C. 2903.01(A), three counts of tampering with

evidence, a felony of the third degree in violation of R.C. 2921.12(A)(1), one count of -6-

possession of drugs in violation of R.C. 2925.11(A), and three attendant firearm

specifications.

{¶14} At trial, the state theorized that Appellant lured the would-be thieves to

enter the house on the premise that it was empty, with the intent to ambush them

once inside. In response, Appellant claimed that he acted in self-defense in

accordance with the “castle doctrine.” The jury found Appellant guilty on all counts.

However, the jury found that the state had not offered adequate proof as to the

amount of drugs in Appellant’s possession, and his conviction for possession of

drugs was reduced to a minor misdemeanor.

{¶15} On April 10, 2015, the trial court sentenced Appellant to life in prison

without the possibility of parole for aggravated murder, 36 months of incarceration on

each of the three counts of tampering with evidence, three years of incarceration on

one firearm specification and one year for the other two firearm specifications. The

court also ordered Appellant to pay a $150 fine and ordered that his driver’s license

be suspended for possession of drugs. The trial court ordered all of the sentences to

run consecutively. Appellant timely appeals his convictions.

“Castle Doctrine”

{¶16} At oral argument, Appellant argued that the state cannot defeat the

presumptions within the “castle doctrine” by showing that the traditional self-defense

elements were not satisfied. Instead, Appellant argues that this doctrine was

intended to stand alone, and that a defendant who uses deadly force to expel a

person who is unlawfully in his home is always presumed to have acted in -7-

accordance with the doctrine. Appellant urges that the only way the presumption of

self-defense found in this doctrine can be defeated is by proof on the part of the state

that the victim was lawfully inside the defendant’s home. Appellant hinges his entire

appellate brief on this presumption.

{¶17} Traditionally, the defense of self-defense requires a defendant to prove

by a preponderance of the evidence that (1) he was not at fault in creating the

situation, (2) he had a bona fide belief that he was in imminent danger of death or

great bodily harm and that his only means of escape was the force used, and (3) he

did not violate a duty to retreat or to avoid the danger. State v. Goff, 128 Ohio St.3d

169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36, quoting State v. Thomas, 77 Ohio

St.3d 323, 326, 673 N.E.2d 1339 (1997); R.C. 2901.05. Although this traditional view

of self-defense itself is not codified, several self-defense theories, including the

“castle doctrine,” are found within Chapter 2901 of the Revised Code.

{¶18} The “castle doctrine” is described within R.C. 2901.09(B):

For purposes of any section of the Revised Code that sets forth a

criminal offense, a person who lawfully is in that person's residence has

no duty to retreat before using force in self-defense, defense of another,

or defense of that person's residence, and a person who lawfully is an

occupant of that person's vehicle or who lawfully is an occupant in a

vehicle owned by an immediate family member of the person has no

duty to retreat before using force in self-defense or defense of another. -8-

This statute, creates an exception to the third element of self-defense, the duty to

retreat. State v. Edwards, 1st Dist. No. C-110773, 2013-Ohio-239, ¶ 6.

{¶19} R.C. 2901.05(B)(1) extended this doctrine:

[A] person is presumed to have acted in self defense or defense of

another when using defensive force that is intended or likely to cause

death or great bodily harm to another if the person against whom the

defensive force is used is in the process of unlawfully and without

privilege to do so entering, or has unlawfully and without privilege to do

so entered, the residence or vehicle occupied by the person using the

defensive force.

So while R.C. 2901.05(B)(1) must be read in context with the rest of section 2901.05

and cannot be read in a vacuum, this statute has created an additional presumption

that a defendant who uses deadly force against a person unlawfully in the

defendant’s home is presumed to have acted in accordance with the castle doctrine.

State v. Bond, 6th Dist. No. WD-15-070, 2016-Ohio-8383, ¶ 40.

{¶20} Appellant argues that the state can rebut the presumption of the “castle

doctrine” only by raising evidence that the victim had a legal right to enter the

defendant’s residence. He maintains that his own conduct during the incident is not

at issue. This argument is clearly contrary to both a plain reading of the statute as a

whole and the established law in Ohio. In a Third District felonious assault case, the

appellant argued that he had an absolute right to forcibly remove a person who was

unlawfully on his property without regard to whether he acted within the context of the -9-

established norms of self-defense. State v. Hadley, 3d Dist. No. 9-11-30, 2013-Ohio-

1942. The Court explained:

[U]nder Hadley's interpretation of the statute, the prosecution is

precluded from ever rebutting the actual elements of self-defense with

evidence that the defendant was not justified in using force or that the

defendant used force unreasonably necessary and disproportionate to

the apparent danger presented by the situation.

This would mean that in every scenario in which the presumption of

self-defense stated in R.C. 2901.05(B)(1) applies, the defendant is

entitled to use any amount of force—even if it is unjustified or

disproportionate to the apparent danger presented—against someone

in his or her residence who is not privileged to be there regardless of

the particular facts and circumstances of the situation. This produces

an absolute license to commit any level of violence, including deadly

force against any trespasser, immediately upon revoking their privilege

to be there, and regardless of the circumstances. (Emphasis deleted.)

Id. at ¶ 58-59.

{¶21} The decision falls in line with decisions from other sister districts. See

State v. Montgomery, 12th Dist. No. CA2015-03-028, 2015-Ohio-4652, 48 N.E.3d

1042, (the state can rebut the castle doctrine presumption by showing that the

elements of traditional self-defense were not met); State v. Petrone, 5th Dist. No.

2011CA00067, 2012-Ohio-911 (recognizing that the state can rebut the castle -10-

doctrine by showing that the defendant was at fault in creating the situation or did not

have a reasonable belief that he was in imminent danger of death or great bodily

harm); State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097

(8th Dist.) (the state failed to rebut the castle doctrine presumption where the

evidence showed that the defendant was not at fault in creating the situation and that

he had a bona fide belief that he was in imminent danger of death or great bodily

harm). So while the “castle doctrine” does appear to upend the usual burdens of

proof, in that we start with the presumption a defendant acted in self-defense if the

intruder is inside the defendant’s home uninvited instead of requiring such a

defendant to first prove all the elements of self-defense, this presumption does not

negate those elements. Instead, the burden becomes the state’s to show that the

defendant’s actions do not comport with the elements of self-defense. See

Montgomery, supra, and State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139.

{¶22} It is apparent, then, that Appellant’s attempt to remove and utilize only

one portion of the more extensive self-defense statute must fail. The statute as

regards the “castle doctrine” is clearly part of the self-defense body of law, and while

it provides a defendant confronted with an intruder into his or her residence with

somewhat greater protections under the law, this doctrine does not serve as a stand

alone right to use deadly force absent other elements of self-defense. Because

Appellant’s assignments of error are based on his misplaced reliance on his

interpretation of the doctrine’s presumption, we will review these assignments

accordingly. -11-

ASSIGNMENT OF ERROR NO. 1

Nicolas Carosiello's convictions were not supported by sufficient

evidence in violation of Nick's right to due process of law under the Fifth

and Fourteenth Amendments to the United States Constitution, and

Article I, Section 10 of the Ohio Constitution. April 13, 2015 Entry; T.pp.

447-1204.

{¶23} On appeal, Appellant contests only his aggravated murder conviction.

Specifically, Appellant was convicted of violating R.C. 2903.01(A), which provides

that: “[n]o person shall purposely, and with prior calculation and design, cause the

death of another or the unlawful termination of another’s pregnancy.”

{¶24} Appellant argues that the state failed to present sufficient evidence that

he acted with prior calculation and design. He contends that the record is devoid of

any evidence to show that the shooting was planned or that he intended to kill Holly.

At best, Appellant argues that the evidence shows that he planned to have a group of

friends at his house at the same time that he expected it to be burglarized. He

additionally argues that the state failed to present sufficient evidence to rebut the

operation of the “castle doctrine” as he understands that doctrine.

{¶25} The state responds that the record is replete with evidence that

Appellant lured the group to his house while he waited, armed, to ambush them. The

state argues that Appellant and his friends waited in a field behind the house for the

erstwhile thieves to arrive. The state highlights that Appellant and his friends were

armed and deliberately concealed themselves. The state also points to evidence that -12-

Appellant maintained contact with Johnny and instructed him to tell the thieves that

no one was at home. The state presented testimony that Appellant said that if the

group of thieves arrived, he would shoot them. Further, Appellant instructed others to

stay away from the house because he knew the thieves would not attempt to enter if

they thought someone was home.

{¶26} “Sufficiency of the evidence is a legal question dealing with adequacy.”

State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476,

¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.3d 541

(1997). “Sufficiency is a term of art meaning that legal standard which is applied to

determine whether a case may go to the jury or whether evidence is legally sufficient

to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No. 07 JE

45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d

148 (1955). When reviewing a conviction for sufficiency of the evidence, a reviewing

court does not determine “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Rucci, 7th Dist. No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt,

7th Dist. No. 09-JE-26, 2011-Ohio-1468, ¶ 34.

{¶27} In reviewing a sufficiency of the evidence argument, the evidence and

all rational inferences are evaluated in the light most favorable to the prosecution.

State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot

be reversed on the grounds of sufficiency unless the reviewing court determines no -13-

rational juror could have found the elements of the offense proven beyond a

reasonable doubt. Id.

{¶28} The state argues that sufficiency of the evidence is not the proper

standard of review when dealing with the “castle doctrine.” Citing State v. Meisel, 7th

Dist. No. 10 MO 4, 2011-Ohio-6426, the state explains that a manifest weight of the

evidence standard is more appropriate, as a defendant claiming self-defense does

not seek to negate an element of the offense, but instead seeks to relieve himself of

culpability. See also State v. Hogg, 10th Dist. No. 11AP-50, 2011-Ohio-6454

(because the “castle doctrine” involves an affirmative defense, a manifest weight of

the evidence review is more appropriate than a sufficiency of the evidence review).

{¶29} While the state is correct, we note that the evidence the state used to

show that Appellant did not act in self-defense is the same evidence it used to show

that he acted with prior calculation and design. Thus, a finding of prior calculation

and design necessarily negates the Appellant’s reliance on self-defense.

{¶30} The legislature intended the element of “prior calculation and design” to

require more than mere instantaneous or momentary deliberation. State v. Kerr, 7th

Dist. No. 15 MA 0083, 2016-Ohio-8479, ¶ 20. Prior calculation requires evidence “of

‘a scheme designed to implement the calculated design to kill’ and ‘more than the few

moments of deliberation permitted in common law interpretations of the former

murder statute.” Id.

{¶31} When evidence presented at trial “reveals the presence of sufficient

time and opportunity for the planning of an act of homicide to constitute prior -14-

calculation, and the circumstances surrounding the homicide show a scheme

designed to implement the calculated decision to kill, a finding by the trier of fact of

prior calculation and design is justified.” Id., citing State v. Braden, 98 Ohio St.3d

354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 61.

{¶32} An appeal contesting a finding of prior calculation and design is

evaluated by looking at the totality of the circumstances on a case-by-case basis.

Kerr at ¶ 21. Prior calculation and design can be found where a defendant “quickly

conceived and executed the plan to kill within a few minutes.” State v. Coley, 93

Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001), citing State v. Palmer, 80 Ohio St.3d

543, 567-568, 687 N.E.2d 685 (1997).

{¶33} Instead of a bright-line test, Ohio courts analyze several factors to

determine if prior calculation and design has been proven. These factors include

whether the defendant and victim knew each other, if the relationship was strained,

whether the defendant gave thought in choosing the murder weapon or site, and

whether the act was drawn out or sprung from an instantaneous eruption of events.

State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 56-60.

{¶34} Neither party disputes that Appellant and Holly knew one another.

They were married and had two young children together. The parties also do not

dispute that the relationship was strained. Although they were still married, they had

been separated for a year and each were both dating other people. The record also

contains evidence that there was some animosity between them. -15-

{¶35} There is no direct evidence that Appellant “chose” the murder site. It

was Holly and her group who had decided to invade Appellant’s house. However,

despite being made aware that this group intended to burglarize his house, Appellant

made no attempt to alert the police. Instead, Appellant went to great effort to make

the house appear entirely empty in order to entice the group to return to his home,

where he could control the chain of events as they occurred. Appellant directed

Johnny to tell Jamie that his house would be empty that night. He moved all the cars

to a field behind the house. It is apparent from this record that Appellant lured the

group to his house while he waited, armed. In effect, he ensured that his house

would be the murder site. He also deliberately armed himself with a .22 caliber

handgun after learning the group was on their way.

{¶36} As to whether the act was drawn out or instantaneously erupted, the

trial court noted that substantial evidence was provided to the jury to demonstrate

that the act was drawn out and was not the result of an instantaneous eruption of

events:

The Defendant was in his own home at the time of the offense, but the

evidence of prior calculation and design is overwhelming. The

Defendant engaged in a comprehensive plan to set up the killing and to

then carry it out. An integral part of the plan included causing others to

believe that the Defendant’s house was empty because they would not

enter an occupied house. Holly Cariosello [sic] was lead [sic] to believe

she was entering an empty house. In fact the Defendant was armed -16-

and waiting inside. Ultimately, Holly Cariosello [sic] was shot one time

through the forehead literally right between her eyes. This fact

contradicts the Defendant’s version of the events.

(4/13/15 Sentencing Entry, p. 2.)

{¶37} The state’s case relied on the testimony of several witness, phone

records, a series of police interviews, and physical evidence. This evidence shows

that Appellant put together a plan where his intent was to kill and that he went to a

great deal of effort to ensure its success.

Enticement

{¶38} The state relied heavily on the fact the Appellant knew that the thieves

would not attempt to enter the house if they believed it was occupied. This is evident

from the fact that the group abandoned their first two attempts after observing people

inside the house. Knowing this, Appellant deliberately created the appearance that

the house was empty.

{¶39} One of the state’s key witnesses was Martina Michael. Martina testified

that after Appellant learned of the group’s plans, Appellant moved the drugs towards

the back of a barn and hid his money. (12/29/15 Trial Tr., p. 742.) He also moved all

the cars on the property to a field behind the house.

{¶40} Tony corroborated Martina’s testimony that Appellant moved all the

cars to the field. Id. at p. 1094. Tony also testified that Appellant intended to make

the house appear to be empty. Stephanie DeRoss testified that Appellant had the

phone on speaker, and that she overheard his conversations with Johnny. She -17-

specifically heard Appellant tell Johnny to inform the group of thieves that he would

be out of the house for a few hours and that his mother and stepfather were out of

town for a funeral.

{¶41} In addition to his efforts to make the house appear empty, several

witnesses testified that Appellant later directed Tony and Brian not to return to the

house because he knew the thieves would only return if they believed no one was

home. Id. at pp. 752, 871, 1098. Martina testified that Appellant instructed her to call

Tony and tell him not to come near the house. Tony confirmed that he received this

call as he was driving near the house. After receiving Martina’s call, he pulled off to

the side of the road and waited for further instructions. At one point, he saw a car

that he believed was Holly’s, and he phoned Appellant with the news that she had

just passed him. Id. at p. 1098. Roxanne Lucas, Tony’s girlfriend, confirmed Tony’s

testimony, as did Michael Johnston, a friend of Tony’s who was also in the car. Id. at

p. 1035.

{¶42} Stephanie testified that Appellant texted Brian and told him that the

thieves were on their way to his house and that Brian should stay away. Brian

responded to Appellant: “Kill those m* * * f* * *ers.” Id. at p. 871. Stephanie saw

both texts.

{¶43} It is clear from this record that Appellant took great effort to not only

lead the would-be thieves to believe that the house was empty, but also to ensure

that no one would come to the house and scare them away. There is substantial

evidence of record that Appellant lured them to his house. -18-

Weapons

{¶44} Martina testified that Appellant was armed with two guns, a rifle and a

.22 caliber handgun. Id. at pp. 748, 864, 1092. This was corroborated by Tony,

Stephanie, and Appellant himself. At the time Holly and her group arrived, Appellant

admits that he was armed with the .22 caliber handgun. According to Martina and

Appellant’s testimony, his stepfather was also armed. There is no evidence that any

member of the group of thieves was armed or that Appellant had any reason to

believe that they were. While Appellant testified that Johnny told him the thieves

were trying to find a gun, Johnny denied this assertion.

Ambush

{¶45} Multiple witnesses testified that Appellant and his friends concealed

themselves in the field behind the house as they waited for the group to arrive during

the afternoon. Appellant concedes that he was armed with multiple weapons at this

time. Appellant maintained contact with Johnny while they waited, to ensure they

would be prepared to act when the thieves arrived.

{¶46} There is also evidence that Appellant actively assisted the thieves to

effect the ambush that night. Jamie testified that he could not kick down the back

door, so he and Holly decided that he would lift her to the window for her to climb

through. He testified that he attempted to push in an air conditioner unit that blocked

the window. At first, he met resistance. Suddenly, the unit slid easily inside without a

crash. Id. at p. 983. Police found the unit sitting on a plastic tote to the right of the

window. There did not appear to be any damage to a variety of items underneath the -19-

window, where the unit would have fallen. The state theorized that Appellant realized

that Jamie could not push the unit inside because the entertainment center blocked

the window, so Appellant pulled the unit inside as Jamie pushed, in order to aid the

thieves’ entrance into the room.

{¶47} Det. Young testified that it appeared as if someone had lifted the air

conditioner unit out of the window and placed it on the totes. Id. at p. 584. A wooden

entertainment center stood directly in front of the window and was about an inch or

so higher than the windowsill. Det. Young opined that this would have made it

extremely difficult to push the unit through window. Id. at p. 586. Det. Young

surmised that this is why Jamie’s efforts were initially met with resistance.

{¶48} When investigators arrived at the scene, they observed several glass

bottles and various items that stood upright on the entertainment center along with an

undisturbed large flat screen television. Det. Young testified that it would have been

impossible for the air conditioner unit to be pushed inside without knocking over the

television set or any of the glass bottles or various items that stood on the

entertainment center.

{¶49} Additionally, the unit was found lying on a plastic tote with the side that

would have been outside of the house face down on the tote. The side that would

have remained in the room was facing the ceiling. This positioning would have

required the unit to flip over while in the air and coincidentally land directly on the tote

to the right of the window. Based on this evidence, the state contended that

Appellant assisted in the removal of the unit and then waited, with his gun aimed at -20-

the window, while Holly climbed through. In fact, Appellant admits that he waited in

his room, armed, while Holly climbed through the window. Id. at p. 1294.

{¶50} At trial, the state’s position was that the testimony of Krista Timm,

deputy medical examiner, did not support Appellant’s claim that he had been

crouched down, and then jumped up and shot wildly at a shadow in the window. She

testified there was a single gunshot wound directly between the victim’s eyes. Id. at

p. 1176. In addition, Jamie testified that he and Holly had been talking in a normal

tone of voice, as they did not believe anyone was home. It was likely that Appellant,

who was inside the small bedroom above the back door, could hear their plans to

push the air conditioner through the window so that Holly could climb inside the room.

Hence, the evidence shows that Appellant aided the victim’s entrance into the house

and was waiting there, poised to shoot.

{¶51} Considering the facts and circumstance of this case, there is substantial

evidence that Appellant acted with prior calculation and design. Although the

evidence is largely circumstantial, “[c]ircumstantial evidence and direct evidence

inherently possess the same probative value.” State v. Prieto, 7th Dist. No. 15 MA

0200, 2016-Ohio-8480, ¶ 34, citing In re Washington, 81 Ohio St.3d 337, 340, 691

N.E.2d 285 (1998); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus. In fact, “[e]vidence supporting the verdict may be

found solely through circumstantial evidence.” State v. Smith, 7th Dist. No. 06 BE 22,

2008-Ohio-1670, ¶ 49. -21-

{¶52} Accordingly, Appellant’s first assignment of error is without merit and is

overruled.

ASSIGNMENT OF ERROR NO. 2

Nicolas Carosiello's conviction for aggravated murder was against the

manifest weight of the evidence, in violation of Nick's right to due

process of law under the Fifth and Fourteenth Amendments to the

United States Constitution, and Article I, Section 10 of the Ohio

Constitution. April 13, 2015 Entry, T.pp. 447-1595.

{¶53} Weight of the evidence concerns “the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.” (Emphasis deleted.) Thompkins, 78 Ohio St.3d at 387. It does not revolve

around a question of mathematics, but depends on the effect of the evidence in

inducing belief. Id. Weight of the evidence involves the state's burden of persuasion.

Id. at 390 (Cook, J. concurring). On review, the appellate court looks at the entire

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

of witnesses, and determines whether, in resolving conflicts in the evidence, the jury

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

conviction must be reversed. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,

954 N.E.2d 596, ¶ 220, citing Thompkins at 387. This discretionary power is to be

exercised only in the exceptional case in which the evidence weighs heavily against

the conviction. Id. -22-

{¶54} “[T]he weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in

best position to weigh the evidence and judge the witnesses’ credibility by observing

their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶55} The jurors are free to believe some, all, or none of each witness’

testimony and they may separate the credible parts of the testimony from the

incredible parts. State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶ 42,

citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 20 N.E.2d 650 (1971). As such,

when there are conflicting versions of events, neither of which is unbelievable, a

reviewing court will not choose which one is more credible. State v. Gore, 131 Ohio

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶56} Appellant essentially repeats his arguments from his first assignment of

error. As previously discussed, the appropriate review when looking at a matter

involving the “castle doctrine” is manifest weight of the evidence. Appellant believes

that a defendant who asserts the “castle doctrine” defense is never subject to the

elements of traditional self-defense. He urges that this doctrine was intended to

stand alone and that a defendant who uses deadly force to expel a person who is

unlawfully in his home is always presumed to have acted in accordance with the

“castle doctrine” and should automatically be exonerated. Appellant urges that the -23-

defendant’s behavior is never properly at issue once that defendant involves the

“castle doctrine.”

{¶57} As previously stated, the “castle doctrine” provides that a defendant

acts in self-defense when defensive force is used against a person who is unlawfully

in his home. Bond, supra, at ¶ 40. It removes a defendant’s duty to retreat.

Montgomery, supra, at ¶ 16. However, it will not apply to provide a defense when

there is evidence that the defendant was at fault in creating the situation or that he

did not have a reasonable belief that he was in imminent danger of death or great

bodily harm. Montgomery, supra, at ¶ 15.

{¶58} Witness testimony was an integral part of this case. The state

presented several key eyewitnesses, including: Martina Michael, Johnny Paroda,

Jamie Adkins, Tony Carosiello, Roxanne Lucas, Michael Johnston, and Stephanie

DeRoss. The defense presented testimony from Jordan Gainer, Josh Rudder, Dustin

Green, and Appellant. At the onset, we acknowledge that there were at least some

credibility issues.

{¶59} Martina Michael admitted that after the incident she drove Appellant to

a secluded area called “Coal Hollow” where he ripped up a box containing

ammunition for the murder weapon and disposed of it, along with bullets and a gun.

She admitted that she pleaded guilty to obstruction of justice and tampering with

evidence and was sentenced to two years in prison and five years of probation for

these actions. Thus, the jury was informed of her role in the incident and of her plea

agreement. Although she initially lied on Appellant’s behalf in her first statement to -24-

police, she later called the sheriff’s office, gave a truthful statement, and showed

investigators where Appellant disposed of the evidence.

{¶60} In addition to her testimony about the guns and ammunition, she

testified to other important aspects of the incident itself. She stated that after

Appellant learned that the thieves were on their way to the house, he instructed her

to call Tony and tell him to stay away. Appellant told her and his family that they

could not tell the police that he shot Holly, and he tried to convince her and his

mother to tell the police that they shot Holly. Her testimony in this case was

corroborated by several witnesses.

{¶61} Johnny Paroda informed the jury that he had a role in the events related

to the shooting and, as a result, had pleaded guilty to involuntary manslaughter,

obstruction of justice, and conspiracy to commit burglary. He told them he was

sentenced to eight years of incarceration. He admitted that he sold drugs for

Appellant. He informed the jury that he was involved in the first two burglary

attempts, but that he later joined with Appellant and helped orchestrate the events

that lead up to the killing. Specifically, he testified that he told Jamie the house would

be empty that night, at the request of Appellant. He testified that he remained in

contact with Appellant throughout the night and informed him when the group was on

their way to his house. His testimony was largely corroborated by phone records

introduced during Det. Jeffrey Haugh’s testimony and Stephanie DeRoss’ testimony.

{¶62} Jamie Adkins also admitted his role in planning to burglarize Appellant’s

house. He disclosed that he pleaded guilty to manslaughter, burglary, and -25-

conspiracy to commit burglary and was sentenced to ten years in prison. He

admitted that while he sold drugs for Appellant, he was involved in each of the three

burglary attempts. Jamie testified that Johnny swore to him that no one would be

home that night. Jamie also provided testimony to support Det. Young’s theory that

Appellant assisted in removing the air conditioning unit from the window to allow

Holly to climb inside the room. He also testified that Appellant continued to fire his

gun into the backyard after shooting Holly while he and Dustin ran away.

{¶63} Tony Carosiello testified that he had pleaded guilty to three counts of

tampering with evidence and was sentenced to two years in prison for his role in the

incident. The charges stemmed from his actions in disposing or attempting to

dispose of two guns (including the murder weapon), and a bag of marijuana. He

testified that he threw the murder weapon into the Ohio River, but that Appellant

retrieved a second gun and the marijuana from Tony before they could be destroyed.

Tony also provided testimony regarding the events that took place on the day of the

shooting. Tony testified that during that afternoon, Appellant moved cars on the

property to the back field to make it appear as if no one was there. He stated that

Appellant deliberately concealed himself in the field, armed with a handgun and a

rifle. He also corroborated Martina’s testimony that Appellant told him to avoid the

house after learning the group was on their way. His testimony was corroborated by

Martina and Roxanne Lucas.

{¶64} The state did not file charges against Roxanne Lucas. While she

admittedly waited in the field with Appellant and saw Holly’s body after the shooting, -26-

she was not actively involved in planning or carrying out the crime. She testified that

she checked Holly after arriving at the house, because she is a nurse. She thought

she felt a weak pulse and told Appellant to call 911. She then got in her car and

waited for Tony because she wanted no further involvement with the matter.

{¶65} Michael Johnston was an eyewitness. He testified that he was in the

car with Tony and Roxanne when Tony saw Holly’s car. He said that Appellant or

Martina called Tony and, shortly thereafter, Holly arrived at Appellant’s house. He

later saw Holly’s body and heard Appellant ask his family to lie about the shooting.

{¶66} Stephanie DeRoss testified that she went to Appellant’s house the

afternoon of August 12th with Brian Specht. She testified that she followed the group

to the field behind the house, but did not immediately understand the situation. She

testified that Appellant maintained contact with Johnny while they waited in the field.

At one point, Appellant had the phone on speaker and she heard him instruct Johnny

to tell the group of thieves that the house would be empty. She also heard the men

say that Holly was the getaway driver.

{¶67} Jordan Gainer testified that, at the time of trial, he was incarcerated for

possession of cocaine, however, it is unclear whether his criminal charges arose from

this case. He testified about prior failed attempts to burglarize Appellant’s house, on

August 11th and the morning of August 12th. He was not involved in the attempt that

resulted in Holly’s death.

{¶68} Josh Rudder testified that he pleaded guilty to complicity to burglary

and was sentenced to five years of incarceration as a result of this matter. He also -27-

testified that he was under the influence of drugs during the incident in question. His

role was to drop the thieves at Appellant’s house and drive around until the group

called him to pick them up. He testified that once he learned that the plan had gone

awry he did not return to the house.

{¶69} Dustin Green testified that due to this incident he pleaded guilty to

conspiracy and complicity to commit burglary and was sentenced to six years of

incarceration. His testimony corroborated Jamie, Johnny, and Jordan’s testimony as

to the events of that night.

{¶70} The final witness to testify was Appellant. Appellant had significant

credibility issues. First, he admittedly gave at least four untruthful statements to

investigators. He conceded that his final statement was made only after several

witnesses came forward and implicated him. Appellant claims that he lied because

he was afraid that the police were “out to get [him].” Id. at p. 1304. He stated that he

feared if he told investigators the truth, “they were going to just slap the cuffs on me,

and I was never going to get out of jail.” Id.

{¶71} His testimony also substantially contradicted that of almost every other

witness. For instance, Appellant testified that he was not a drug dealer. Instead, he

explained that when he would buy marijuana for his own personal use he would often

buy more than he needed in case a friend wanted to purchase some to smoke with

him. This testimony contradicted that of every witness. He also testified that he was

unaware that the thieves were after his drugs and money. This testimony

contradicted the testimony of several witnesses. -28-

{¶72} Appellant claimed that he did not lure the group to his house for

purposes of an ambush. He wanted the group to return so that he could catch them

in the act and take the evidence to the police. Id. at p. 1280. He admitted that he

moved all the cars on the property to the field in an effort to make the house appear

to be empty. Id. at p. 1355. He also admitted that he told investigators that he was

lying in the grass to conceal himself and that he was armed with a .22 caliber

handgun and a rifle. Id. at p. 1282.

{¶73} On the night of August 12th, Appellant says he told Martina to call 911

after learning the thieves were nearby. However, Martina testified that Appellant

instructed her to call Tony. Appellant later conceded that he knew Martina called

Tony, not 911. Appellant testified that he told Tony and Brian to come to the house

when he learned that the thieves were on their way. However, Tony and Martina

testified that Appellant instructed Tony and Brian to stay away from the house.

Stephanie testified that she saw a text from Appellant to Brian telling him that the

thieves were on their way and not to come to the house.

{¶74} After the thieves arrived, Appellant said that he heard noises that

sounded like they were trying to kick down the back door. He testified that he went to

his bedroom because he believed it was the best way to defend the back of the

house. He claimed that he crouched down by his bedroom door, and could not see

the air conditioning unit or the window from his position because the television set

obstructed his view. He testified that the air conditioning unit suddenly flew into the

room and hit the television set, causing it to swivel. He claimed that the unit rolled to -29-

the side and landed on the plastic tote. This contradicts the testimony of the

investigators and the photographs taken at the scene.

{¶75} Appellant told investigators that the intruder was “inside the window up

to their waist or hips.” Id. at p. 1381. He attempted to clarify that statement by

saying he believed the person’s hips had cleared the window because items had

been knocked off the entertainment center. Id. However, when investigators arrived,

they noted that the items on the entertainment center appeared to be undisturbed.

{¶76} He asserted that he saw a shadow at the window and that he jumped

up and fired a shot “wildly” into the direction of the shadow as he ran out of the room.

This appears to contradict the deputy medical examiner’s testimony that the victim

was shot directly between her eyes, as it seems unlikely that Appellant could jump up

and fire a wild shot that landed perfectly between the victim’s eyes.

{¶77} Appellant also testified that he ran out of the room after firing the shot.

When the state reminded him that he admitted to firing “warning shots” out of the

window, he said that he realized after leaving the room that someone might still be

outside so he ran back inside the room and fired the shots out the window before

again leaving the room, in contradiction to his previous statement to investigators. Id.

at p. 1385.

{¶78} He claimed that he did not go out the back door immediately, but did go

outside when he decided that he needed evidence that someone had broken into the

house. He only realized that Holly had been shot when he went outside to see if

there was a broken window that he could use as such evidence. -30-

{¶79} Appellant admitted that he asked his family not to tell anyone that he

shot Holly because he did not want his children to grow up knowing that he killed

their mother. He explained,

I didn’t want it to be in the front page of the paper as the guy that killed

his wife. * * * I didn’t want to face the facts. I mean, it was just - - I felt

like my life was over. I felt - - I didn’t know what my rights were. I didn’t

know that - - you know, I didn’t know - - all I know is that I was put in a

position where I felt like I had to defend myself, and now I felt like the

cops aren’t going to believe what I have to say. They’re - - you know,

I’m going to go to prison for this.

Id. at p. 1300.

{¶80} Appellant testified that Tony came to the house after the shooting and

took the murder weapon from him. When he asked Tony the next morning about the

gun, Tony showed it to him. Realizing that it was not the murder weapon, Appellant

took it back. He then gave the murder weapon to Tony and said, “I don’t want the

gun.” Id. at p. 1309. When asked about the conflict between his testimony and

Tony’s he explained that Tony was “going to do what he has to do to keep himself

out of jail.” Id. at p. 1399. However, Appellant later admitted he told Det. Young that

he asked Tony to get rid of the gun. Id. at p. 1405.

{¶81} Appellant also admitted that he disposed of the ammunition and a third

gun. He claimed that he did so because he did not want guns around the house -31-

anymore. He did not explain why he went out of his way to leave the items at a

remote location or why he ripped up the box that held the ammunition.

{¶82} Appellant claimed that he did not call Johnny the evening of the

incident. When the state reminded him about Det. Haugh’s testimony regarding

phone records showing calls were placed from Appellant to Johnny that night,

Appellant opined that the detective did not understand how to read phone records.

{¶83} Appellant’s version of the facts is not in accord with any of the other

witnesses’ testimony or with the physical evidence, consisting of phone records and

photographs. All of the other witnesses corroborated, in the main, one another’s

version of the events. There is nothing within the record to show that any of these

witnesses’ testimony was incredible, with the exception of Appellant’s. Again, the

jury was in the best position to judge all of the witnesses’ credibility.

{¶84} To rebut Appellant’s reliance on the “castle doctrine,” the state needed

to show that the elements of traditional self-defense were not met. The first element

of traditional self-defense looks to whether the defendant was at fault in causing the

incident. The record is replete with evidence that Appellant lured the group to the

house and enticed them to enter it. While it is true that the group planned to

burglarize Appellant’s house, it is clear from these facts that he deliberately turned

the tables on them after learning of their plans. He instructed Johnny Paroda to tell

the group that no one would be home. Appellant does not dispute the fact that he

made the house appear to be empty. There is also testimony from multiple

witnesses that Appellant told his brother and friend to avoid the house so as not to -32-

scare the group away. Additionally, there is testimony and photographs that strongly

suggest that Appellant assisted Jamie in removing the air conditioning unit out of the

window so that Holly could climb through. Importantly, at no time did Appellant

attempt to call the police. Instead, he chose to take matters into his own hands.

{¶85} The second element of traditional self-defense is whether the defendant

held a bona fide belief that he was in danger of death or great bodily harm. Here, it is

clear that Appellant did not believe that he was in danger. While Appellant claimed

that Johnny told him the group was looking for a gun, Johnny did not corroborate this

testimony. There is no other evidence to suggest that Appellant had reason to

believe that the group would be armed. It is clear from these facts that Appellant

acted to protect his possessions, drugs and money, and not himself. It is equally

clear that he acted out of anger, not fear. He wanted to send a message to a group

of people that he admittedly did not like. As such, there is competent, credible

evidence to show that Appellant did not act in self-defense. For the same reasons,

the jury’s finding of prior calculation and design is also supported by competent and

credible evidence.

{¶86} Accordingly, Appellant’s second assignment of error is without merit

and is overruled.

Conclusion

{¶87} Appellant argues that his convictions are not supported by sufficient

evidence and are against the manifest weight of the evidence. This record provides

substantial evidence to support Appellant’s convictions. Further, this record -33-

demonstrates that witnesses, except for Appellant, were largely credible. As such,

Appellant’s arguments are without merit and the judgment of the trial court is

Donofrio, J., concurs.

Yarbrough, J., concurs.