State v. Perrine

2024 Ohio 6082

• Court: Ohio Court of Appeals
• Decided: December 30, 2024
• Docket: 2024 CA 00044
• Status: Published

Opinion

[Cite as State v. Perrine, 2024-Ohio-6082.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J. -vs- Case No. 2024 CA 00044 DAVID A. PERRINE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 2023 CR 213

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 30, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS, ESQ. CHRIS BRIGDON Licking County Prosecuting Attorney Brigdon Law, LLC 8138 Somerset Road KENNETH W. OSWALT, ESQ. Thornville, Ohio 43076 Assistant Prosecuting Attorney 20 S. Second Street, 4th Floor Newark, Ohio 43055 Licking County, Case No. 2024 CA 00044 2

Hoffman, P.J. {¶1} Defendant-appellant David Perrine appeals the judgment entered by the

Licking County Common Pleas Court convicting him following jury trial of aggravated

murder (R.C. 2903.01(A)), murder (R.C. 2903.02(A)), tampering with evidence (R.C.

2921.12(A)(1)), abuse of a corpse (R.C. 2927.01(B)), and two counts of theft (R.C.

2913.02(A)(1)), and sentencing him to an aggregate term of incarceration of life without

possibility of parole. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant’s mother, Debra Perrine, was reported missing in December of

2022. When friends and family attempted to contact Debra’s cell phone, Appellant

answered. He gave conflicting stories about Debra’s whereabouts, saying she was in

Florida or at a clinic. Appellant told Debra’s grandson Debra was no longer with them.

{¶3} On December 18, 2022, police made a welfare check on Debra at the

residence she shared with Appellant. No one answered the door, although the GPS on

Appellant’s phone indicated he was in the house. Officers made a second welfare check

on December 22, 2022. Again, no one answered the door, but police noticed a light go

off inside the house. Officers called Debra’s phone, and Appellant answered. He claimed

he was in Granville and told officers his mother was in Florida. He later admitted to being

inside the house at the time. On December 23, 2022, Appellant told police Debra might

be with Tina or Jimmy, but claimed he did not have either of their phone numbers, despite

the fact he had possession of Debra’s phone. While having Debra’s phone in his

possession, Appellant sent text messages from his own phone to Debra’s phone.

{¶4} Debra’s body was found buried under a blanket in the backyard of the home

on December 29, 2022. After searching the house and evaluating the evidence, Licking County, Case No. 2024 CA 00044 3

investigators determined Debra was likely struck in the head with a Playstation, which

they found in a firepit, with pieces found in the living room. Evidence of blood in the home

suggested Debra fled from her attacker to her bedroom, where she was repeatedly

stabbed to death in her bed. Foam was cut out of the blood-saturated mattress, with

pieces found in the laundry room trash and near Appellant’s car in the garage. A knife

was found with Appellant’s DNA on the handle. Appellant’s boots matched a print found

on the mattress foam, showed signs of having been used for digging, and included the

victim’s blood and DNA. In addition, Appellant’s DNA was found on the inside of the

mattress foam. Police also found a notebook in which someone had written, “I will kill

her. I really don’t think she thinks I will. I can’t believe how stupid I’ve been.” Tr. 698-

700.

{¶5} During the time Debra’s whereabouts were unknown, Appellant used her

vehicle, made purchases using her credit and debit cards, and forged a check in her

name.

{¶6} Appellant was indicted by the Licking County Grand Jury with aggravated

murder (R.C. 2903.01(A)), murder (R.C. 2903.02(A)), tampering with evidence (R.C.

2921.12(A)(1)), abuse of a corpse (R.C. 2927.01(B)), two counts of identity fraud (R.C.

2913.49(B)(1,), (2)) and two counts of theft (R.C. 2913.02(A)(1)). The State dismissed

the two counts of identity fraud prior to trial.

{¶7} Appellant filed a motion in limine to exclude recordings of telephone calls

he had previously made while incarcerated. The calls dated from January 19, 2019

through October 14, 2021. In the calls, Appellant expressed his hatred for his mother and

his intent to kill her. The trial court overruled the motion in part and granted the motion Licking County, Case No. 2024 CA 00044 4

in part. The trial court held statements made within a two-year period of December 17,

2022, the date of the offense as alleged in the indictment, were admissible. The trial court

excluded from evidence all statements made prior to December 17, 2020. Tr. 161.

{¶8} The case proceeded to jury trial. Appellant was convicted of all charges.

The trial court found the convictions of murder and aggravated murder merged, and the

State elected to have Appellant sentenced for aggravated murder. The trial court

sentenced Appellant to a term of life imprisonment without possibility of parole for

aggravated murder, thirty-six months incarceration for tampering with evidence, twelve

months incarceration for gross abuse of a corpse, and twelve months for each theft

conviction, to be served concurrently for an aggregate term of life imprisonment without

possibility of parole. It is from the April 17, 2024 judgment of the trial court Appellant

prosecutes his appeal, assigning as error:

I. THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF

TESTIMONIAL AND AUDIO EVIDENCE CONCERNING ALLEGATIONS

OF PRIOR MISCONDUCT BY THE APPELLANT, IN VIOLATION OF OHIO

EVID. R. 404(B). THE INTRODUCTION OF THIS EVIDENCE WAS

PREJUDICIAL, IRRELEVANT, AND IMPROPERLY USED TO SUGGEST

THAT THE APPELLANT ACTED IN CONFORMITY WITH PRIOR ACTS

TO PROVE GUILT REGARDING THE CHARGED OFFENSES.

II. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE THE

AFOREMENTIONED EVIDENCE UNDER OHIO EVID. R. 403, AS ITS

PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY ITS Licking County, Case No. 2024 CA 00044 5

UNFAIR PREJUDICIAL EFFECT. THE INTRODUCTION OF THIS

EVIDENCE MISLED THE JURY AND DISTRACTED FROM THE

CENTRAL ISSUES OF THE CASE, CAUSING UNDUE PREJUDICE

AGAINST THE APPELLANT.

I.

{¶9} In his first assignment of error, Appellant argues the trial court erred in

admitting into evidence threats he made against his mother in calls from the jail, as the

evidence constituted prior bad acts evidence inadmissible pursuant to Evid. R. 404(B).

{¶10} Appellant points to four statements he argues were improperly admitted in

the instant case, citing to the prosecutor’s argument in opposition to the motion in limine:

“I’ll come out and fucking kill you.”

“I’m going to cut off your fucking head.”

“If my shit’s gone, I’m going to kill you myself.”

“Don’t bury me in the backyard.” (statement made by the victim, not

Appellant).

{¶11} Tr. 156-58.

{¶12} It appears several of these statements were included in recordings excluded

from evidence by the trial court. Nevertheless, because substantially similar threats

appear throughout the admitted recordings, we will address all of the threats Appellant

made to kill his mother on the merits. Licking County, Case No. 2024 CA 00044 6

{¶13} “A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271(1991).

{¶14} Evid. R. 404(B) provides in pertinent part:

(B) Other Crimes, Wrongs or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong or act is not

admissible to prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice. This evidence may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.

{¶15} The defendant's other act “must have such a temporal, modal and

situational relationship with the acts constituting the crime charged that evidence of the

other acts discloses purposeful action in the commission of the offense in question.” State

v. White, 2015-Ohio-2512 ¶33, (2nd Dist.), citing State v. Snowden, 49 Ohio App.2d 7,

10 (1st Dist. 1976), citing State v. Burson, 38 Ohio St.2d 157 (1974). Consequently, an

act too distant in time has no probative value to the charged crime. Id. Evidence of a

defendant's threats, violence, or other behavior in the months preceding a murder is

probative of the defendant's motive or intent. State v. Nields, 93 Ohio St.3d 6, 22, (2001).

{¶16} There does not appear to be a hard and fast rule in Ohio case law on the

age of admissible threats made from an offender directly to a victim of violence. White at Licking County, Case No. 2024 CA 00044 7

¶ 37. In White, the court found the trial court did not abuse its discretion in admitting

evidence of threats made directly to the victim two years prior to the crime. In State v.

Cruse, 2008-Ohio-4039 (5th Dist.), this Court held “threats and incidents in this case,

which were limited to the six to eight-month period prior to the murder, were not so

removed in time as to have no probative value and tended to show appellant acted with

purpose to kill her husband.” Id. at ¶ 55.

{¶17} Appellant argues the statements made up to two years before his mother

was killed are not temporal and therefore not probative of his intent to kill. He further

argues the statements were taken out of context, and were joking statements made about

his mother’s emphysema.

{¶18} Although the threats admitted in the jail calls were made one to two years

prior the victim’s death, we find Appellant’s repeated direct threats to kill the victim while

talking to her on the phone are directly probative of motive, plan and intent. Extensive

evidence was presented by the State regarding ongoing acrimony between Appellant and

his mother, and the fear of his mother and others Appellant would kill her. Although

Appellant argues the statements in the phone calls were taken out of context, we find this

argument goes to the weight to be given the evidence, and not to its admissibility. We

find the trial court did not err in admitting evidence of past threats Appellant made to kill

his mother under Evid. R. 404(B).

{¶19} The first assignment of error is overruled.

II.

{¶20} In his second assignment of error, Appellant argues the trial court erred in

failing to exclude his threats in the jail calls under Evid. R. 403(A), which provides, Licking County, Case No. 2024 CA 00044 8

“Although relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.”

{¶21} Appellant argues the probative value of the threats is substantially

outweighed by the danger of unfair prejudice. In reaching a decision involving

admissibility under Evid.R. 403(A), a trial court must engage in a balancing test to

ascertain whether the probative value of the offered evidence outweighs its prejudicial

effect. State v. Hymore, 9 Ohio St.2d 122, (1967), paragraph seven of the syllabus. In

order for the evidence to be deemed inadmissible, its probative value must be minimal

and its prejudicial effect great. State v. Morales, 32 Ohio St.3d 252, 258, (1987).

Furthermore, relevant evidence which is challenged as having probative value that is

substantially outweighed by its prejudicial effects “should be viewed in a light most

favorable to the proponent of the evidence, maximizing its probative value and minimizing

any prejudicial effect” to the party opposing its admission. State v. Maurer, 15 Ohio St.3d

239, 265 (1984).

{¶22} We find the probative value of the evidence is not substantially outweighed

by the danger of unfair prejudice. The evidence at issue is direct evidence of Appellant

threatening to kill the victim, which is probative of his intent to kill her. While Appellant

argues the threats were made one to two years before the murder, and the statements in

the jail calls were taken out of context, we find this argument goes to the weight to be

given the evidence, not to its admissibility. Licking County, Case No. 2024 CA 00044 9

{¶23} The second assignment of error is overruled.

{¶24} The judgment of the Licking County Common Pleas Court is affirmed.

By: Hoffman, P.J. Baldwin, J. and King, J. concur