State v. Dover

2014 Ohio 3200

Opinion

[Cite as State v. Dover, 2014-Ohio-3200.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2014 CA 00073 COURTNEY A. DOVER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2007 CR 00153

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 21, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO COURTNEY DOVER PROSECUTING ATTORNEY PRO SE KATHLEEN O. TATARSKY FRANKLIN MEDICAL CENTER ASSISTANT PROSECUTOR 1800 Harmon Avenue 110 Central Plaza South, Suite 510 Columbus, Ohio 43223 Canton, Ohio 44702-1413 Stark County, Case No. 2014 CA 00073 2

Wise, P. J.

{¶1} Defendant-appellant, Courtney A. Dover, appeals from the April 16, 2014,

Judgment Entry of the Stark County Court of Common Pleas denying his “Motion for

Plain Error Review.”

{¶2} Plaintiff-appellee is the State of Ohio.

{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶4} “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

{¶5} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE FACTS AND CASE

{¶6} The facts and procedural history of this case are as follows:

{¶7} On January 12, 2007, Perry Township Police Officer William Watson

responded to the scene of a shooting at the Marc's Plaza on Tuscarawas Street in Perry

Township, Ohio. As he pulled into the parking lot, he saw a man lying on the ground

bleeding from a large wound in the buttocks area. Officer Watson saw no weapon but

taped off the area as a crime scene and asked for the names of any witnesses. Officers

located the injured man's vehicle, still running, in the parking lot. Sarah Dotson, who

was shopping with her daughter, told Officer Watson she heard what sounded like a cap Stark County, Case No. 2014 CA 00073 3

gun and saw a man stumble and collapse. She approached the injured man and

determined that he was bleeding. The man requested that she contact his girlfriend.

She then saw a dark car with circular brake lights leave the parking area. Ms. Dotson

called 911.

{¶8} The police did not recover a weapon or shell casings from the scene of the

incident. Prior to being taken by ambulance to the hospital, the injured man told police

that “Corey” had shot him.

{¶9} The ambulance squad arrived and took the injured man to Aultman

Hospital. The man was identified as George Curlutu, an unemployed felon. In 2000, he

was convicted of possession of cocaine and marijuana and sentenced to three years in

prison. In 2004, he was convicted of a second count of possessing cocaine and

tampering with evidence. He served a two-year prison term.

{¶10} Curlutu and appellant were acquaintances and met at St. Mary's Church in

Massillon, Ohio at a Texas Hold-Em tournament. They occasionally played poker and

smoked weed at appellant's residence on 4th Street near the Canton Baptist Temple.

On the day of the shooting, appellant called Curlutu and asked to meet at the Aldi's

parking lot. Sensing a chance to go on a “blunt ride”-where you smoke weed together-.

Curlutu skipped his classes at barber school and met appellant at the parking lot.

Curlutu knew appellant only as “C” or “Corey.”

{¶11} Curlutu testified that on the day in question he smoked marijuana. He

further stated that he was under the influence of marijuana at the time of the incident.

Medical records indicated he also had cocaine and valium in his system. Curlutu denied Stark County, Case No. 2014 CA 00073 4

being under the influence of those substances. However, he admitted that he had used

narcotics in the days preceding the incident.

{¶12} Curlutu pulled into the parking lot and waited for appellant, who arrived

driving a blue Chevrolet Impala with tinted windows. Curlutu noticed a little girl in a car

seat dressed in a pink coat. Curlutu exited his car, leaving the motor running, and got

into appellant's car. Appellant asked Curlutu if he could borrow $300 or $400. Curlutu

told appellant he did not have money like that. Appellant responded by reaching down

to the left hand part of the door and pulling out a longer barrel revolver. Curlutu's first

reaction was to grab the revolver with his left hand. A struggle ensued and the revolver

landed on the car seat. Curlutu opened the car door to run and was shot in the buttocks.

{¶13} Curlutu fell down and appellant pulled out of the parking lot. Curlutu was

taken to Aultman Hospital. Surgery was performed and eventually a deformed bullet-a

.38 special or .357-caliber bullet-was removed from his buttocks area.

{¶14} Detective Matthew Barker of the Perry Township Police Department was

called to the scene to assist in the investigation of the shooting. Detective Barker talked

with Curlutu at the hospital. Curlutu called his friend, Todd McCune, to learn more about

the shooter. Detective Barker learned the shooter's first name was “Courtney,” that he

drove a blue Chevrolet Impala with tinted windows and lived by the Canton Baptist

Temple. Detective Barker also learned the shooter's cell phone number and that he had

purchased the phone or minutes for the phone at Hever's Meats. Armed with the cell

phone number, Detective Barker went to Hever's Meats and learned that the cell phone

number belonged to appellant, and his address was 4456 4th Street N.W., Perry

Township, Ohio. Curlutu showed Detective Barker the residence where the shooter Stark County, Case No. 2014 CA 00073 5

resided, and it matched the address of appellant that Detective Barker had obtained

from Hever's Meats.

{¶15} Detective Barker placed a photograph of appellant in a photo lineup with

five other males with the same physical characteristics. Two days after the shooting,

Curlutu identified appellant's photograph as the shooter and told Detective Barker that

he was 100 percent sure of his identification.

{¶16} Detective Barker went to the home on 4th Street identified as appellant's

residence. Detective Barker saw signs that someone was home. He knocked on the

door but received no response. Thirty minutes later Tammy Young, appellant's girlfriend

and mother of his one-year-old daughter, came home. Ms. Young gave Detective

Barker permission to enter the home. Inside the home Detective Barker found appellant

carrying a blue cell phone with a telephone number (330) 371-3453. Detective Barker

also collected from the home three coats or jackets belonging to appellant and a box of

Winchester .38-caliber ammunition. A blue Chevrolet Impala belonging to Ms. Young

was also at the residence. Ms. Young testified appellant had keys to the car. Ms. Young

told the police that she was at work at the time of the incident. Appellant was watching

their child when she left but could have taken the child to a baby sitter.

{¶17} The three coats or jackets belonging to appellant were taken from the

home and sent to the Stark County Crime Laboratory for DNA testing. Officers also

obtained and sent to the Crime Laboratory oral swabs from the victim for comparison.

Kylie Graham, a technician with the laboratory, compared three areas of bloodstains on

a gold coat belonging to appellant with the oral swabs taken from the inner cheek of Stark County, Case No. 2014 CA 00073 6

Curlutu. Graham opined that the bloodstains on the coat matched Curlutu's blood in

three areas.

{¶18} On February 20, 2007, the Stark County Grand Jury indicted appellant on

one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2),a felony of

the second degree, one count of improperly handling firearms in a motor vehicle in

violation of R.C. 2923.16(B), a felony of the fourth degree, and one count of

endangering children in violation of R.C. 2919.22(A), a misdemeanor of the first degree.

The charge of felonious assault was accompanied by a fireman specification. At his

arraignment on February 23, 2007, appellant entered pleas of not guilty to the charges.

{¶19} Subsequently, a jury trial commenced on April 10, 2007. At the conclusion

of the evidence and the end of deliberations, the jury, on April 11, 2007, found appellant

guilty of all charges. As memorialized in a Judgment Entry filed on April 18, 2007,

appellant was sentenced to an aggregate sentence of ten (10) years in prison.

{¶20} Appellant appealed his conviction and sentence. Pursuant to an Opinion

filed in State v. Dover, 5th Dist. Stark No. 2007-CA-00140, 2008-Ohio-1071, this Court

affirmed appellant’s conviction and sentence.

{¶21} On May 23, 2011, appellant filed a Motion to Correct an Unlawful

Sentence, arguing that the charges of improperly handling firearms in a motor vehicle

and endangering children were allied offenses and “thus Subject to Merger in the

prosecution arising out of the Defendant’s felonious assault on the victim.” The motion

was denied via a Judgment Entry filed on June 9, 2011.

{¶22} Thereafter, on August 15, 2011, appellant filed a Motion to Correct Illegal

Sentence, arguing that the verdict form for felonious assault failed to conform to the Stark County, Case No. 2014 CA 00073 7

mandates set forth on State v. Pelfrey, 112 Ohio St.3d 422, 2007–Ohio–256, 860

N.E.2d 735. The trial court, as memorialized in a Judgment Entry filed on August 18,

2011, denied appellant’s motion. The trial court, in its Judgment Entry, held that even if

it were to construe appellant’s motion as a Petition for Post Conviction Relief, the same

was not timely filed and also the arguments raised in appellant’s motion were not raised

on direct appeal.

{¶23} This Court affirmed the conviction and sentence in State v. Dover, 5th

Dist. Stark No. 2011CA000193, 2012-Ohio-1181.

{¶24} On October 1, 2012, Appellant filed another motion captioned as a "motion

to correct and resentence", wherein he repeated his Pelfrey and allied offense

arguments. Appellant requested that the trial court give him a more lenient sentence

than the seven year sentence he received. In its judgment entry, the trial court rejected

his motion.

{¶25} Appellant filed his third appeal with the assistance of the Ohio Public

Defender. This Court rejected his appeal citing the doctrine of res judicata. Slate v.

Dover, 5th Dist. Stark No. 2012CA00204, 2013-Ohio-2634.

{¶26} On April 11, 2014, appellant filed a motion entitled "Motion for Plain Error

Review" claiming that the indictment was defective violating his right to a unanimous

jury verdict. In its judgment entry, the trial court denied the motion finding that the

arguments he made had already been disposed of in this Court's previous three

opinions. See Judgment Entry April 16, 2014.

{¶27} Appellant now brings this fourth appeal, assigning the following error for

review: Stark County, Case No. 2014 CA 00073 8

ASSIGNMENT OF ERROR

{¶28} “I. THE TRIAL COURT ERRED WHEN IT DENIED, WITHOUT A

HEARING, MR. DOVER’S MOTION REQUESTING A PLAIN ERROR REVIEW OF HIS

INDICTMENT UNDER CRIMINAL RULE 52(B) AND CRIMINAL RULE 12(H).”

I

{¶29} Appellant, in his sole Assignment of Error, argues that the trial court erred

in denying his Motion for plain error review. We disagree.

{¶30} In this most recent motion, Appellant argues that he was deprived of a

unanimous jury verdict because the indictment charged him with felonious assault under

R.C. 2903.11(A)(1) and/or A(2).

{¶31} Upon our review, we find Appellant's motion should be construed as a

petition for post-conviction relief and dismissed on the basis of res judicata, because

Appellant could have raised his claims on direct appeal. As stated by the Supreme

Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967),

paragraphs eight and nine of the syllabus:

{¶32} “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 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.”

{¶33} In the case sub judice, appellant could have presented this argument as a

timely direct appeal; rather, he filed a Motion for Plain Error Review subsequent to the

time when he could have raised the issue in a direct appeal. Stark County, Case No. 2014 CA 00073 9

{¶34} The doctrine of res judicata bars appellant from raising this issue anew via

a motion for plain error review. Because appellant could have raised this claim on direct

appeal, we find that the doctrine of res judicata is applicable and the trial court did not

err in denying his Motion.

{¶35} Appellant’s sole Assignment of Error is, therefore, overruled.

{¶36} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 0625