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Date: 01-21-2018

Case Style:

STATE OF OHIO v. AVELARDO ROSALES

Case Number: 27117

Judge:

Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Plaintiff's Attorney: MICHAEL J. SCARPELLI
Montgomery County Prosecutor’s Office

Defendant's Attorney: Lucas Wilder

Description: MATHIAS H. HECK, JR., by MICHAEL J. Avelardo Rosales appeals from his conviction and sentence on one count of
felony murder, one count of felonious assault, one count of discharging a firearm into a
habitation, and two firearm specifications.
{¶ 2} Rosales’ appointed appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of
any non-frivolous issues for our review. We notified Rosales of the Anders filing and gave
him an opportunity to file his own brief. Rosales responded with a pro se brief in which he
raises seven assignments of error.
{¶ 3} The present appeal stems from a shooting that occurred outside a Huffman
Avenue apartment on the evening of August 2, 2015. Prior to the shooting, Amanda
Draughn was inside the apartment with several other people, including Jeremy Combs,
John Humble, and her brother, Dallas Draughn. Around 8:00 or 9:00 p.m., Rosales arrived
with two other individuals to sell Amanda some Xanax pills. Before the transaction took
place, an argument or minor altercation occurred between Humble and Rosales. The
incident resulted in Rosales and his companions abruptly leaving.
{¶ 4} Amanda Draughn called Rosales after he had left to ask what had happened.
Rosales accused her of attempting to “set him up.” She denied the allegation and agreed
to meet him at a gas station just down the street to purchase the Xanax. After she walked
to the gas station, Rosales arrived in the passenger seat of a blue pick-up truck. Rosales
exited the truck, asked if Humble was still at the apartment, and requested his phone
number. Amanda instead gave Combs’ number to Rosales, who told her to remain at the
gas station while he went to talk to Humble. According to Amanda, Rosales then sped


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down Huffman Avenue toward her apartment. She had a “bad feeling” and began running
after the truck. Amanda testified at trial that the truck remained in her sight the entire time
and that she saw it stop in front of her apartment. As she approached, she saw Rosales
roll down the passenger window and shoot her brother Dallas Draughn, who was on the
porch with Combs. She testified that she reached Dallas while the shooting was in
progress and that the blue pick-up truck sped away after her brother was shot. Amanda
also testified that Dallas made statements to her about being in pain.
{¶ 5} For his part, Combs testified that he was upstairs in the apartment when he
heard the gunshots. He ran outside and saw Dallas on the ground and a blue pick-up
truck in the road. Combs recalled hearing Dallas say only “Mexicans.” Combs further
testified that he saw Amanda Draughn still running toward them and that she arrived
quickly. Dallas Draughn later was pronounced dead at an area hospital.
{¶ 6} One of the shots fired struck fifteen-year-old K.M., who lived in the apartment
next door to Amanda Draughn. K.M. testified that he was on a couch in his grandmother’s
living room when he heard gunshots and a bullet passed through his arm. K.M.’s
grandmother testified that she later observed multiple bullet holes in her apartment and
found actual fired bullets. Investigators found ten spent .45 caliber shell casings on a
sidewalk in front of the apartment building. A firearm examiner with the Miami Valley
Regional Crime Lab opined that the casings were from the same firearm.
{¶ 7} Later that night or in the early morning hours of the next day, Rosales showed
up unexpectedly at the home of Juanita Buschorn, the grandmother of a child Rosales
had with Buschorn’s daughter. Buschorn testified that Rosales seemed upset and said,
“Juanita, I think I just killed somebody.” Rosales exited her house soon thereafter without


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saying where he was going. Amanda Draughn testified that she also spoke to Rosales
shortly after the shooting. According to Amanda, he called and told her that he did not
mean to kill Dallas and that the bullet was intended for John Humble.
{¶ 8} Amanda also spoke to police on the night of the shooting and identified
Rosales as the gunman. After obtaining Rosales’ cell phone number, detectives secured
“ping” data for his phone and tracked his travel. The first ping occurred around 1:00 a.m.
near the intersection of Interstate 70 and U.S. Route 127 in Preble County. Based on
subsequent pings, detectives determined that Rosales was heading west toward
Indianapolis. They pursued him to a location east of Indianapolis, where the pinging
stopped near several hotels and other businesses. The detectives learned that Rosales
had stopped at a hotel to pick up a relative before continuing west. The detectives then
discontinued their pursuit and returned to Dayton. Upon their return, however, they
received a ping from a location west of St. Louis, Missouri. The information was forwarded
to Missouri detectives who quickly located Rosales working with a roofing crew and
arrested him.
{¶ 9} While in jail in Missouri awaiting his return to Ohio, Rosales made a number
of phone calls, which were recorded. Some of the calls included discussions of the
shooting and contained incriminating statements by Rosales. On one call, he dismissed
the possibility of claiming self-defense because his actions would seem premeditated. He
also disputed a news account that the incident was a drive-by shooting. He stated: “No, I
stood there and did my thing; we didn’t drive by.” In another call, Rosales stated that he
“just let it loose” and that he “still wanted to go back and fix up the other one.” In another
call, Rosales stated that he was still mad and that he would “do it all over again if I had


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to.” In yet another call, he stated: “Well, now they know that I ain’t [no] f***ing b***h. They
all f***ing know. They know that. [A]t least [sic]. I didn’t take care of [unclear] don’t mean
I ain’t going to take care of everybody else that crossed the line.”
{¶ 10} Based on the evidence presented, a jury found Rosales guilty of multiple
counts of felony murder and felonious assault, improperly discharging a firearm into a
habitation, and several three-year firearm specifications. The jury found Rosales not guilty
of discharging a firearm on or near prohibited premises and a five-year firearm
specification. After merging multiple counts of murder and felonious assault, the trial court
imposed a sentence of fifteen years to life in prison for one count of felony murder, six
years in prison for one count of felonious assault, and six years in prison for one count of
improperly discharging a firearm into a habitation. The trial court ordered the prison
sentences for felony murder and felonious assault to be served consecutively. It imposed
the sentence for improperly discharging a firearm concurrently. The trial court also
merged all but two of the three-year firearm specifications. It ordered the sentences for
the remaining two firearm specifications to be served consecutively. The result was an
aggregate sentence of twenty-seven years to life in prison. In addition, the trial court
ordered Rosales to pay restitution of $2,936.25 for the funeral bill and imposed court
costs. This appeal followed.
{¶ 11} In his first pro se assignment of error, Rosales contends the trial court erred
in admitting other-acts testimony in violation of Evid.R. 404(B). His argument concerns
Amanda Draughn’s testimony that Rosales had participated in beating and robbing a man
identified as “Devon” several days before the shooting at issue.
{¶ 12} Amanda testified at trial that her brother Dallas had punched Devon inside


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her apartment about a week before the shooting. On that occasion, Devon had pulled a
gun, and Dallas had responded by knocking him out. Amanda testified that John Humble
then kicked Devon in the face while Rosales went through Devon’s pockets and took
Xanax and cash from him. Amanda explained that Rosales gave her some of the Xanax
to give to Dallas. She testified that Humble “was mad because he didn’t get cut in on that.”
According to Amanda, Humble “felt like he was entitled to something out of that because
he kicked the dude in the face[.]” Amanda explained that this prior incident was what
Humble and Rosales were arguing about on the night of the shooting just before Rosales
and his companions abruptly left the apartment and Rosales then met her at the gas
station.
{¶ 13} Although evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith, Evid.R.
404(B) allows other-acts evidence to be admitted to prove motive and other things. Here
Amanda Draughn’s testimony about the incident involving Devon undoubtedly was
permissible for two related reasons. First, it explained what Rosales and Humble were
arguing about just prior to Rosales and his companions leaving the apartment on the
evening of the shooting. Second, it provided a potential motive for Rosales to return
shortly thereafter and to fire shots into the apartment. Although the prosecution is not
required to prove a defendant’s motive, evidence of motive was particularly relevant here
because defense counsel told the jury in opening statements: “There was no motive for
anybody to do this, in particular, Mr. Rosales, because again, there was no argument,
there was no disagreement.” Having reviewed the record, we see no non-frivolous issue
as to whether Amanda Draughn’s testimony about the incident involving Devon should


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have been excluded under Evid.R. 404(B).
{¶ 14} In his second assignment of error, Rosales claims the trial court erred in
allowing the State to introduce knowingly-false “perjured” testimony from Amanda
Draughn. His argument is premised on perceived conflicts between her testimony and
Combs’ testimony in some respects, including her precise location at the time of the
shooting (whether she had reached the scene or still was running toward it), Combs’
location at that time (whether he was inside the apartment or on the porch), and what
Dallas Draughn said after being shot (whether he only said “Mexicans” or made additional
comments to Amanda). Rosales also notes that Amanda Draughn admitted lying to police
when she gave a statement on the night of the incident.
{¶ 15} Upon review, we find no non-frivolous issue with regard to Rosales’ perjury
argument. The prosecution’s knowing use of false or perjured testimony constitutes a
due-process violation if a reasonable likelihood exists that the testimony could have
affected the jury’s verdict. State v. Iacona, 93 Ohio St.3d 83, 97, 752 N.E.2d 937 (2001).
The burden is on the defendant to establish (1) that the testimony was false, (2) that the
testimony was material, and (3) that the prosecution knew it was false. Id. Here we see
no non-frivolous issue with regard to the first or third requirements. To the extent that
Amanda Draughn and Combs provided differing testimony, it could be that one of them
was mistaken, misremembered, or perceived things differently. The fact that Amanda’s
testimony seemingly conflicted with Combs’ testimony in some respects does not
establish that those aspects of her testimony were false. But even if we assume,
arguendo, that Amanda did provide false testimony, nothing in the record suggests that
the State knowingly elicited false testimony. Finally, Rosales’ observation that Amanda


-8-
admitted lying to police in her unsworn statement at the scene does not establish perjury
at trial.1 In her sworn trial testimony, Amanda admitted falsely telling police after the
shooting that she had gone to the gas station to give Rosales rent money. Amanda
testified that she actually went there to buy Xanax from him. She explained that she had
lied to police because she was afraid of getting into trouble for attempting to buy drugs.
Nothing about this aspect of Amanda’s testimony is indicative of perjury.
{¶ 16} In his third assignment of error, Rosales challenges the legal sufficiency of
the evidence to sustain his convictions. In support, he reasons that the only evidence
supporting his convictions is Amanda Draughn’s perjured testimony. As set forth above,
however, we see no non-frivolous issue regarding the perjury claim. Moreover, when
reviewing a challenge to the legal sufficiency of the evidence, we are required to consider
all of the evidence admitted at trial, regardless of whether it was admitted erroneously.
State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.). We note too that
Rosales’ convictions are supported by much more than Amanda’s testimony. As set forth
above, the grandmother of his child testified that he told her he thought he had killed
someone. In addition, Rosales himself fled after the shooting and made incriminating
recorded statements that constitute admissions of guilt. For the foregoing reasons, his
challenge to the legal sufficiency of the evidence is frivolous.
{¶ 17} In his fourth assignment of error, Rosales alleges ineffective assistance of
1 Attached to Rosales’ appellate brief as “Exhibit A” is a copy of Amanda Draughn’s written statement to police. On October 6, 2017, the State moved to strike this exhibit on the grounds that the statement was not entered into evidence at trial. Upon review, we overrule the State’s motion and decline to strike the written statement from the record. Rather than striking the exhibit to Rosales’ brief, we simply will not consider it. See State v. Alford, 2d Dist. Montgomery No. 25715, 2013-Ohio-5045, ¶ 11 (recognizing that “a party cannot introduce new evidence on appeal”).


-9-
trial counsel. He contends his attorney provided ineffective assistance by (1) advising him
not to testify, (2) failing to present unspecified evidence in support of an involuntary
manslaughter charge, and (3) failing to raise unspecified objections at sentencing.
Rosales also asserts that his attorney should have (1) objected to the “other-acts”
testimony discussed above, (2) contested Amanda Draughn’s “perjured” testimony, (3)
moved for acquittal under Crim.R. 29, (4) objected to restitution, and (5) objected to
consecutive sentences for murder and felonious assault.
{¶ 18} We see no non-frivolous issue with regard to any of the foregoing
arguments. “Absent evidence to the contrary, the appellate court must presume that a
defendant-appellant’s failure to testify was the result of his knowing and intelligent
decision.” State v. Copeland, 2d Dist. Montgomery No. 18711, 2002 WL 63161, *3 (Jan.
18, 2002). Here there is no evidence that Rosales’ failure to testify was the result of
ineffective assistance of counsel. In fact, Rosales explicitly confirmed to the trial court that
the decision not to testify was his.
{¶ 19} We also see no non-frivolous argument concerning defense counsel’s
failure to pursue an involuntary-manslaughter charge. Rosales neglects to identify any
specific evidence his attorney failed to present that would have supported a charge of
involuntary manslaughter as a lesser-included offense of felony murder. Additionally, on
the record before us, Rosales was not entitled to a jury instruction on involuntary
manslaughter as a lesser-included offense of felony murder. He was convicted and
sentenced for felony murder based on killing Dallas Draughn as a proximate result of
committing felonious assault. We recognize that involuntary manslaughter is a lesser
included offense of felony murder. State v. Crockett, 10th Dist. Franklin Nos. 14AP-242,


-10
14AP-248, 2015-Ohio-2351, ¶ 28. A lesser-included offense instruction is warranted,
however, only when the evidence is such that the jury reasonably might reject the greater
offense and find the defendant guilty of the lesser offense. Id.
{¶ 20} The felony-murder statute, R.C. 2903.02(B), provides that “[n]o person
shall cause the death of another as a proximate result of the offender’s committing or
attempting to commit an offense of violence that is a felony of the first or second degree.”
The underlying offense here was felonious assault, a second-degree felony offense of
violence. The involuntary-manslaughter statute, R.C. 2903.04(A) and (B), provides in
relevant part that “[n]o person shall cause the death of another” as a proximate result of
committing a felony or a misdemeanor. The primary difference between the felony-murder
statute and the involuntary-manslaughter statute is that the former requires the underlying
offense to be a first-degree or second-degree felony offense of violence, whereas the
latter merely requires that the underlying offense be a felony or a misdemeanor. Here the
underlying criminal act, firing a gun at Dallas Draughn, constituted felonious assault by
causing or attempting to cause physical harm with a deadly weapon (the firearm), which
is a second-degree felony offense of violence. Therefore, if Rosales was guilty at all, he
was guilty of committing felony murder. It follows, then, that the jury could not have
acquitted him of felony murder but convicted him of involuntary manslaughter. That being
so there is no basis to give an involuntary-manslaughter instruction.
{¶ 21} We also see no non-frivolous issue regarding defense counsel’s failure to
raise unspecified objections at sentencing. Having reviewed the sentencing transcript, we
see no sentencing-related error by the trial court. Insofar as Rosales’ argument might be
directed toward the imposition of consecutive sentences for murdering Dallas Draughn


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and committing felonious assault by shooting the minor victim in the arm, the trial court
made the requisite findings under R.C. 2929.14(C)(4), which permits consecutive prison
terms
if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public, and if the court
also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 22} Here the trial court made the following findings at sentencing:
* * * The Court finds that consecutive service is necessary to punish
Mr. Rosales and that the consecutive sentence is not disproportionate to


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the seriousness of Mr. Rosales’ conduct and to the danger he poses to the
public.
The court further finds the involved offenses were committed as part
of a course of conduct and the harm caused by the two offenses at issue,
again murder and felonious assault as it relates to [the minor victim], is so
great that a single prison term for the indicated offenses will not adequately
reflect the seriousness of Mr. Rosales’ conduct.
{¶ 23} The foregoing findings satisfied R.C. 2929.14(C)(4), and the record
supports them. Moreover, an imposed sentence cannot be reversed unless it is contrary
to law or the record clearly and convincingly fails to support the sentence. State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23. The sentence
here is not contrary to law and because the record supports the sentence, we see no
potential issue regarding consecutive sentencing. We note too that the trial court properly
included its consecutive-sentence findings in the final judgment entry.
{¶ 24} Rosales’ other arguments also fail to demonstrate a non-frivolous issue for
appeal. In our analysis above, we already found no merit to his arguments about other
acts testimony and allegedly perjured testimony by Amanda Draughn. Contrary to
Rosales’ claim in his appellate brief, his trial counsel also did make a Crim.R. 29 motion
for judgment of acquittal. Finally, we see no non-frivolous issue regarding the trial court’s
modest $2,936.25 restitution order, which was based on a bill for Dallas Draughn’s funeral
expenses. When considering Rosales’ ability to pay, the trial court recognized that he
would be in prison indefinitely. It nevertheless concluded that he was healthy, able to
work, and capable of making some payments toward the bill while incarcerated. See R.C.


-13
5145.16(C)(8)(b) (authorizing twenty-five percent of a prison inmate’s pay to be allocated
to a restitution obligation). We find no arguable merit to each of Rosales’ arguments.
{¶ 25} In his fifth assignment of error, Rosales contends the trial court erred in
ordering him to pay restitution and court costs. We just considered the restitution issue
above. With regard to court costs, we note that under R.C. 2947.23 a trial court is required
to impose court costs against all convicted defendants, even those who are indigent.
State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The trial court
may waive costs, however, if the defendant moves to do so. Here Rosales’ counsel did
request a waiver of court costs in his sentencing memorandum, which the trial court
indicated that it had reviewed. But even if that were not sufficient to qualify as a motion,
Rosales would remain free to challenge his court costs at any time, even after sentencing,
pursuant to R.C. 2947.23(C). In any event, we conclude that the trial court had discretion
not to waive courts costs in this case. We see no non-frivolous issue for appeal.
{¶ 26} In his sixth assignment of error, Rosales challenges the trial court’s
imposition of consecutive sentences for felony murder and felonious assault. We
addressed this issue above and need not repeat the analysis here. Rosales also argues
under his sixth assignment of error that the trial court misinformed him about parole.
Specifically, he contends the trial court incorrectly stated at sentencing that he would be
on parole for the rest of his life if ever released from prison. Rosales claims this statement
overlooked R.C. 2967.16(A), which provides a mechanism for a paroled prisoner with a
life sentence to be granted “final release” from parole no earlier than five years after being
released from prison. Although Rosales is correct about R.C. 2967.16, we see no non
frivolous issue for appeal. “When a person is paroled, he or she is released from


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confinement before the end of his or her sentence and remains in the custody of the state
until the sentence expires or the Adult Parole Authority grants final release.” State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36. Absent a grant of final
release, then, Rosales would be on parole for the rest of his life, as the trial court stated.
The possibility that a final release could cut his parole short was not something the trial
court was required to tell him at sentencing. Even when taking a guilty plea, a trial court
is not required to discuss parole at all. Id. at ¶ 37. That being so, the trial court could not
have erred in failing to mention a statutory mechanism that it was not required to address
and that someday could work to Rosales’ advantage.
{¶ 27} In his seventh assignment of error, Rosales alleges ineffective assistance
of appellate counsel based on counsel’s failure to raise some of the arguments addressed
above. This assignment of error lacks merit. None of the arguments raise non-frivolous
issues. Therefore, appellate counsel could not have provided deficient representation by
failing to raise them. Rosales also cannot have suffered any prejudice from appellate
counsel’s representation because this court’s independent review would result in new
counsel being appointed if any non-frivolous issues did exist.
{¶ 28} We turn now to appointed appellate counsel’s Anders brief, which states
that counsel specifically has considered the following issues: “motion to suppress,
sufficiency and manifest weight of the evidence arguments, jury instructions, and
sentencing.” Counsel has concluded that the foregoing issues lack even arguable merit,
and we agree. Rosales’ convictions plainly are not based on legally insufficient evidence
or against the weight of the evidence. We also have reviewed the jury instructions and
have found no arguable error. Likewise, we have found no non-frivolous issues arising


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from Rosales’ sentencing. In addition to our analysis above, we note with regard to
sentencing that the trial court correctly did not merge two of the multiple firearm
specifications. Pursuant to R.C. 2929.14(B)(1)(g), the trial court was statutorily required
to impose separate sentences for two of the most serious firearm specifications when
those specifications are related to certain enumerated offenses which include murder and
felonious assault. And, under R.C. 2929.14(C)(1)(a) the sentences for those firearm
specifications were required to be served consecutively to each other and consecutively
to the sentences for the substantive offenses. With regard to counsel’s reference to a
suppression motion, the record reflects that Rosales declined to speak to police after his
arrest. The only statements he made were during the recorded jailhouse conversations
mentioned above. Although Rosales was in custody at that time, his statements on the
telephone were not the product of any interrogation by law enforcement. In addition, his
telephone calls began with a warning that the conversations were being recorded.
Therefore, the trial court correctly found no basis to suppress the statements Rosales
made from jail on the telephone.
{¶ 29} Finally, we have conducted our own independent review of the record and
have found no non-frivolous issues for appeal. In addition to the various issues addressed
and rejected above, the only other issue we have found warranting discussion involves
the trial court’s failure to merge Rosales’ offenses of discharging a firearm into a
habitation, felony-murder, and felonious-assault. Felony murder and felonious assault
were not subject to merger here, even if they were committed with the same conduct and
the same motivation, because they involved separate harm inflicted on two different
victims. In addition, Rosales’ conviction for discharging a firearm into a habitation did not


-16
merge into either of the other two offenses. Again, even if the offenses were committed
with the same conduct and animus, they involved separate, identifiable harms. The gun
shots killed Dallas Draughn, they injured K.M., and they endangered the other occupants
of the two apartments, thereby creating a harm separate and distinct from the harm
experienced by Dallas and K.M. See State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347,
54 N.E.3d 80, ¶ 205-206 (concluding that attempted murder and discharging a firearm
into a habitation did not merge where the defendant pulled up in front of a house and fired
numerous shots at people on the porch because the “shootings were directed at the
people on the porch, the shots fired endangered those inside the house and thereby
created harm distinct from the harm to the attempted-murder victims”). Rosales’ shots
also caused separate harm to the apartments themselves. See State v. Grayson, 2017
Ohio-7175, __ N.E.3d __, ¶ 17-25 (8th Dist.) (holding that felonious assault and
discharging a firearm into a habitation did not merge where the defendant filed multiple
shots into an occupied house because the harm from the felonious assault was to a
person in the house whereas the harm from discharging a firearm was to the structure
itself, which did not even need to have people present to obtain a conviction). , Atty. Reg. No. 0093662, Montgomery County Prosecutor’s Office

Outcome: Based on the reasoning set forth above, we affirm the judgment of the
Montgomery County Common Pleas Court.

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