State v. Dowdel , 2016 Ohio 8174 ( 2016 )

[Cite as State v. Dowdel, 2016-Ohio-8174.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 HA 0004
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MATTHEW M. DOWDEL )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Harrison County,
Ohio
Case No. CRI 2015-0021
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Owen Beetham
Harrison County Prosecutor
Atty. Jeffrey J. Bruzzese
Assistant Prosecuting Attorney
111 W. Warren Street
P.O. Box 248
Cadiz, Ohio 43907
For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Allen Vender
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street, 14th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: December 15, 2016
[Cite as State v. Dowdel, 2016-Ohio-8174.]
WAITE, J.
{¶1} Appellant, Matthew Dowdel, was convicted following a jury trial in the
Harrison County Court of Common Pleas of aggravated robbery, two counts of grand
theft of a motor vehicle, tampering with evidence, felonious assault and murder. He
was sentenced to an aggregate term of thirty years to life of imprisonment.
{¶2} On appeal, Appellant argues that his conviction for tampering with
evidence was based on insufficient evidence. For the following reasons the
judgment of the trial court is affirmed.
{¶3} The State’s evidence at trial established the following:
{¶4} On the evening of March 27, 2014, at approximately 10:00 p.m.,
Appellant and Eve Kelly (“Kelly”) arrived at the home of the victim, Joseph Strother
(“Strother”). Appellant knew Strother’s son Anthony, as they were classmates.
Appellant was greeted by Anthony on arrival. Anthony assumed Appellant was there
to see Strother to purchase drugs. Anthony summoned Strother, who then informed
his wife that he needed to leave the house but would be back shortly. Appellant,
Kelly and Strother left in Strother’s vehicle with Strother driving, Appellant was in the
passenger seat and Kelly was in the back seat behind Strother.
{¶5} They stopped at a second location where Strother exited the vehicle.
While Appellant and Kelly were in the car alone together, Appellant suggested they
rob Strother. He informed Kelly that he had taken a rolling pin from Strother’s home
and it was on the floor in the backseat near where Kelly was seated. The two agreed
that, on Appellant’s signal, Kelly would strike Strother with the rolling pin from behind.
When Strother returned to the car, Appellant asked him to drive them to Sally Buffalo
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Park. Appellant got into an argument with Strother, as he believed Strother owed him
drugs in exchange for the scale that he had given to Strother in a previous
transaction. As they neared the park and the argument escalated, Appellant signaled
to Kelly who then began hitting Strother in the back of the head with the rolling pin.
She hit him approximately three times, after which he began to bleed from his injuries
and slowed down the car and got out. Appellant jumped over the console and put
the car in park. He took the rolling pin from Kelly and followed Strother out of the
vehicle. Appellant chased Strother with the rolling pin in hand. Kelly got out of the
car and heard the altercation. Kelly was able to see very little but did see Appellant
drag Strother near the water. Appellant returned to the car and ordered Kelly to get
inside. Kelly asked about the rolling pin and Appellant informed her that he had
thrown it. The pair then drove away. Strother’s body was discovered the following
morning by a woman walking in the park. The police were called and an investigation
began. Following a full investigation of the scene, law enforcement discovered the
rolling pin in a wooded area approximately 400 feet from where Strother’s body was
found. Appellant and Kelly were finally tracked down several days later in Daytona
Beach City, Florida. Appellant was interviewed in Florida by Detective Jones of the
Harrison County, Ohio Sheriff’s Department. Appellant and Kelly were subsequently
extradited to Ohio.
{¶6} On April 16, 2014, Appellant was indicted on one count of murder, one
count of felonious assault, one count of complicity to murder and one count of
complicity to felonious assault. On February 2, 2015, after additional investigation,
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Appellant was indicted on two counts of murder; one count of aggravated robbery;
two counts of grand theft of a motor vehicle; one count of tampering with evidence;
one count of felonious assault; one count of complicity to murder and one count of
complicity to felonious assault. After a jury trial, Appellant was convicted of
aggravated robbery, two counts of grand theft of a motor vehicle, tampering with
evidence, felonious assault and murder. He was sentenced to an aggregate term of
thirty years to life imprisonment.
{¶7} Appellant appeals from his convictions, raising a single assignment of
error.
ASSIGNMENT OF ERROR
The trial court erred in denying Matthew Dowdel’s Crim.R. 29 motion for
acquittal, and violated his rights to due process and a fair trial when, in
the absence of sufficient evidence, it convicted him of tampering with
evidence. Fifth and Fourteenth Amendments, United States
Constitution; Sections 10 and 16, Article I, Ohio Constitution. R.C.
2921.12. Tr. 138-139, 163, 438-39; March 16, 2015 Judgment Entry.
{¶8} A sufficiency of the evidence argument disputes whether the state has
presented adequate evidence on each element of the offense to allow the case to go
to the jury or whether the evidence is legally sufficient to support a jury verdict as a
matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
The weight to be given to the evidence and the credibility of the witnesses are
primarily issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
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212 (1967). In reviewing whether sufficient evidence was presented to support a
conviction, the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in a light most favorable to the state, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). If reasonable minds could differ whether
each material element has been proven, a Crim.R. 29 motion for acquittal must be
overruled. State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978).
{¶9} Appellant contends there was insufficient evidence to support his
conviction on tampering with evidence. Pursuant to R.C. 2921.12(A), tampering with
evidence:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall * * * [a]lter,
destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such
proceeding or investigation.
{¶10} At trial, the state had the burden of proving beyond a reasonable doubt
that Appellant, knowing that an official investigation was in progress, was about to
begin, or was likely to be started, acted in a way to “alter, destroy, conceal, or remove
any record, document, or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation.” R.C. 2921.12(A). Appellant claims
that he simply moved the rolling pin “from one open-air space to another” which
would not rise to the level of tampering with evidence. (Appellant’s Brf., p. 4.)
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{¶11} “Whether defendant had actual notice of an impending investigation,
when an offender commits an unmistakable crime, the offender has constructive
knowledge of an impending investigation of the crime committed.” State v. Schmitz,
10th Dist. No. 05AP-200, 2005-Ohio-6617, ¶ 17.
{¶12} In this case, Appellant’s actions constituted an unmistakable crime.
The testimony at trial indicated that he jumped out of the car, and ran after the victim
with the weapon, a rolling pin. During Appellant’s interview in Florida, which was
videotaped and admitted into evidence, he stated that he threw the rolling pin into the
woods. Finally, Detective Durst testified that the rolling pin was found some 400 feet
from the victim’s body, near a wooded area. (Tr., pp. 138-139.)
{¶13} Simply stated, Appellant’s assertion that he moved the rolling pin from
one open area to another is an oversimplification of Appellant’s actions and is not
supported by the evidence before the jury. The rolling pin did not just haphazardly
end up where it was found. It was located not in open air, but near a grove of trees
some 400 feet from the victim’s body and where the trial testimony indicated the
altercation occurred. Additionally, blood evidence was found on the rolling pin and
on other items found near it at the other end of the park, providing circumstantial
evidence that Appellant had dumped a number of evidentiary items prior to fleeing
the park with Kelly in the victim’s vehicle.
{¶14} Circumstantial evidence has the same probative value as direct
evidence. State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). A
conviction can be predicated upon circumstantial evidence. Id. In the case sub
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judice, the circumstantial evidence concerning the whereabouts of the rolling pin was
sufficient to sustain a conviction against Appellant for tampering with evidence under
R.C. 2921.12(A).
{¶15} Therefore, based upon the foregoing, Appellant’s assignment of error is
without merit and the judgment of the trial court is affirmed.
DeGenaro, J., concurs.
Robb, J., concurs.