State v. Carosiello , 2017 Ohio 8160 ( 2017 )

[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
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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.
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{¶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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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.
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{¶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
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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
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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.
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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
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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
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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.
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{¶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.
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{¶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
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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
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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
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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,
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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
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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
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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
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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
affirmed.
Donofrio, J., concurs.
Yarbrough, J., concurs.