[Cite as State v. Babock , 2012-Ohio-3627.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 2011CA00286
JOSHUA ALEXANDER BABCOCK

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2011CR0723


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         August 6, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO                                RODNEY A. BACA
Prosecuting Attorney                           Schnars, Baca & Infantino, LLC
Stark County, Ohio                             610 Market Avenue North
                                               Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702
Stark County, Case No. 2011CA00286                                                     2

Hoffman, J.


        {¶1}   Defendant-appellant Joshua Alexander Babcock appeals his conviction

and sentence entered by the Stark County Court of Common Pleas. Plaintiff-appellee is

the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   On May 11, 2011, the victim herein, Monique Crockett, did not report to

work.   Her employer tried to contact her via cell phone, and eventually spoke with

Appellant, who indicated Crockett was in the hospital due to an accident. On May 12,

2011, Crockett again did not report to work. Her employer again tried to contact her via

phone calls and text messages to her cell phone.        Crockett’s employer received a

responsive text on May 13, 2011, indicating she was resigning her position.

        {¶3}   Crockett, a twenty-five year-old mother of three small children, recently

had her children removed from her custody for leaving them unattended. Appellant and

Crockett had been dating approximately seven months at the time of the incident.

        {¶4}   Members of Crockett's family learned she was missing, and heard rumors

her body was in the trunk of a car driven by Appellant. Crockett's family began looking

for her, and eventually located the car at the home of Pamela Walker on 14th Street

N.E., Canton, Ohio. Several police officers responded to the home where the car was

parked, and knocked on the door. Walker gave the police permission to search her

home, and Appellant was found inside the home sitting on the couch. Upon noticing the

police, Appellant ran into a back bedroom.

        {¶5}   The officers inquired of Appellant as to Crockett's whereabouts. Appellant

indicated he did not know where she was, and she wouldn't answer his calls. The
Stark County, Case No. 2011CA00286                                                      3


police called Crockett's cell phone number, and a phone on the couch began to ring.

The officers asked Appellant if he had the keys to the car, and Appellant indicated he

did not, Monique had them. Walker then told the police she knew Appellant had the

keys because she had witnessed him starting the vehicle.

      {¶6}   The officers read Appellant his Miranda rights, and asked him what they

might find in the trunk of the car. Appellant responded, "you know what you'll find in the

trunk of the car"; followed by an indication Crockett was in the car. Appellant admitted

to the officers he and Crockett were driving around, got into an argument and she was

having an asthma attack. He told the officers he pulled over into the Walker driveway,

and went into the house because he was mad. When he returned, she was dead and

he put her in the trunk of the car with clothes over her body. Appellant then told the

officers where the key to the car was located, inside his tennis shoe.

      {¶7}   Officer Walker of the Canton Police Department opened the trunk of the

car, which was stuffed with clothing and a sleeping bag. When he removed some of the

items, he found Crockett's head.

      {¶8}   At the police station, the officers conducted a recorded, videotaped

interview of Appellant, during which Appellant waived his Miranda rights. Appellant

admitted he had been dating Crockett for seven months until they were evicted from

their apartment, and then they were living in the car and in other people's homes.

      {¶9}   He told the officers Crockett got off work on Thursday, May 12, 2011, and

they got into an "altercation," during which Crockett blamed him for losing her children.

Appellant claimed she was having a panic attack and grabbed him, at which point he

attempted to administer CPR. Appellant claimed despite his efforts, Crockett died.
Stark County, Case No. 2011CA00286                                                       4


         {¶10} Appellant later admitted to putting Crockett in a sleeper hold, which he

demonstrated to the detectives. Appellant told the officers,

         {¶11} "I put my arm around her neck so her chin shit was right here and her

throat was right here and I just squeezed but I ain't…I stopped cause she was like,

Josh, can you please stop so we can talk about this.

         {¶12} "***

         {¶13} "Yeah. Then I stopped. As soon as I started talking this shit, this spit and

shit come out her mouth I stopped and she like, and I rolled the window down so she

can get her air back and we sat there and she was like, Josh, please don't do this, blah,

blah, blah. We done been through too much. We done through a lot of bad shit

together it's been straight, a bad road. Everything just fell apart. And then she said

somethin' and she started talkin' about her mother fuckin' baby dad or whatever and

then I just snapped. It just hit me again.

         {¶14} "***

         {¶15} "So I did it again. And this time I was all the way blacked out and I didn't

stop."

         {¶16} State's Exhibit 21, at 18-19.

         {¶17} Appellant admitted to placing Crockett's body in the trunk after he killed

her, claiming he was too afraid to call anyone.

         {¶18} The Stark County Coroner later determined the cause of death was

cervical compression.

         {¶19} On November 18, 2011, the Stark County Grand Jury filed an amended

indictment charging Appellant with one count of murder, in violation of R.C. 2903.02(A);
Stark County, Case No. 2011CA00286                                                    5


and one count of gross abuse of a corpse, in violation of R.C. 2927.01(B). Appellant

entered a plea of not guilty to the charges, stipulated to his competency to stand trial

and his sanity at the time of the offense. Appellant filed a motion to suppress the

videotaped statement to the police, which the trial court denied. Appellant also filed a

motion for appointment of an expert in the area of forensic medicine, asserting the

autopsy report contains very specific medical information and is inconsistent. The trial

court denied the motion via Judgment Entry of November 28, 2011.

        {¶20} Following a jury trial, Appellant was convicted of the charges.       Via

Judgment Entry of December 29, 2011, the trial court entered the conviction and

sentenced Appellant to fifteen years in prison on the murder count, twelve months on

the gross abuse of a corpse count, to be served consecutively for a total of sixteen

years to life.

        {¶21} Appellant now appeals, assigning as error:

        {¶22} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT THE

RIGHT TO FUNDS FOR AN EXPERT WITNESS.

        {¶23} “II. THE TRIAL COURT VIOLATED THE APPELLANT’S DUE PROCESS

RIGHTS       WHEN     IT   FAILED    TO    PROVIDE         JURY   INSTRUCTIONS      OF

MANSLAUGHTER, INVOLUNTARY MANSLAUGHTER AND SELF-DEFENSE TO THE

JURY.

        {¶24} “III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING

JURY DELIBERATIONS.

        {¶25} “IV. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION

AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”
Stark County, Case No. 2011CA00286                                                           6


                                                  I.

       {¶26} In the first assignment Appellant maintains the trial court erred in denying

his motion for funds to retain an expert witness. The trial court denied the motion

finding Appellant failed to demonstrate a particularized need.

       {¶27} The State asserts there is no statutory authority to provide public funds for

an indigent defendant's expert who is charged with murder. R.C. 2929.024 provides for

experts in aggravated murder cases, and only when there is a demonstration the expert

is reasonably necessary. The need must be legitimate and relevant to the case. State

v. Powell 49 Ohio St.3d 255 (1990); State v. Jenkins, 15 Ohio St.3d 164.

       {¶28} The authority to fund defense experts rests within the sound discretion of

the trial court.

       {¶29} The Ohio Supreme Court has held: "[p]ursuant to Ake, it is appropriate to

consider three factors in determining whether the provision of an expert witness is

required: 1) the effect on the defendant's private interest in the accuracy of the trial if the

requested service is not provided, 2) the burden on the government's interest if the

service is provided, and 3) the probable value of the additional service and the risk of

error in the proceedings if the assistance is not provided." State v. Mason, 82 Ohio

St.3d 144, 149 (1998), citing Ake v. Oklahoma, 470 U.S. 68 (1985)

       {¶30} This Court has held "[i]n the absence of a particularized showing of need,

due process as guaranteed by the Fifth and Fourteenth Amendments to the United

States Constitution and Section 16, Article I of the Ohio Constitution does not require

the provision of an expert witness." In re B.L., 2009-Ohio-6341. A defendant must

provide a trial court with facts to establish a particularized need for expert assistance
Stark County, Case No. 2011CA00286                                                      7


and must demonstrate more than a mere possibility of assistance to receive an expert

witness at the state's expense.     State v. Nichols, 2010-Ohio-2242.       Undeveloped

assertions the proposed assistance would be useful to the defense are patently

inadequate. Id.

       {¶31} On November 28, 2011, the trial court held a hearing on Appellant's

motion for funds for an expert forensic scientist. Appellant requested funds to retain an

expert in the area of forensic medicine to aid in the defense of Appellant, as counsel for

Appellant had no training in the field of medicine and did not understand several terms

in the coroner's report. In addition, Appellant's counsel stated she believed the report

was inconsistent.

       {¶32} The State claimed Appellant failed to demonstrate a particularized need

for the expert.

       {¶33} The trial court, via Judgment Entry of November 28, 2011, held:

       {¶34} "In the present action the defendant has failed to show a particularized

need as to how a forensic expert would assist him. Although counsel for the defendant

has asserted that there are terms in the coroner's report that she doesn't understand, it

is unclear what these terms are. Additionally, counsel for the defendant has asserted

that there are inconsistencies in the medical report; however it is unclear what the

inconsistencies are. Further, counsel for the defendant has not identified a specific

forensic expert and has admittedly not spoken with Assistant Coroner Orlino or Dr.

P.S.S. Murthy regarding their findings despite being given the opportunity to do so."

       {¶35} We find the trial court did not abuse its discretion in denying the motion

because as Appellant demonstrated no particularized need for such an expert.
Stark County, Case No. 2011CA00286                                                     8


Appellant made the request only 26 days prior to trial, and did not name the potential

expert or explain what testimony could be anticipated. Counsel had not interviewed the

coroner or the doctor performing the autopsy. Appellant's undeveloped assertions and

generic statement regarding counsel's failure to understand all the terms in the autopsy

report and unnamed inconsistencies were insufficient to establish the trial court abused

its discretion.

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

                                               II.

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

not providing instructions on the lesser included offenses to the greater charge of

murder.

       {¶38} An instruction on a lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense. State v. Robb (2000), 88

Ohio St.3d 59, 74, 723 N.E.2d 1019 (emphasis added). Thus, if the jury can reasonably

find the state failed to prove one element of the charged offense beyond a reasonable

doubt but that the other elements of the lesser included offense were proven beyond a

reasonable doubt, a charge on the lesser included offense is required. Id.

       {¶39} Trial courts have broad discretion in determining whether the evidence

adduced at trial was sufficient to warrant a jury instruction. State v. Morris, Guernsey

App. No. 03CA29, 2004-Ohio-6988, reversed on other grounds, 109 Ohio St.3d 313,

847 N .E.2d 1174, 2006-Ohio-2109; State v. Mitts (1998), 81 Ohio St.3d 223, 228, 690

N.E.2d 522. “When reviewing a trial court's jury instructions, the proper standard of
Stark County, Case No. 2011CA00286                                                         9


review for an appellate court is whether the trial court's refusal to give a requested

instruction constituted an abuse of discretion under the facts and circumstances of the

case.” State v. Sims, Cuyahoga App. No. 85608, 2005-Ohio-5846, ¶ 12, citing State v.

Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. A trial court does not abuse its

discretion by not giving a jury instruction if the evidence is insufficient to warrant the

requested instruction. State v. Lessin (l993), 67 Ohio St.3d 487, 494, 620 N.E.2d 72. An

“abuse of discretion” connotes more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore, supra.

         {¶40} Appellant asserts the trial court abused its discretion in failing to instruct

the jury on the lesser included offenses of involuntary manslaughter and reckless

homicide. Appellant was convicted of murder, in violation of R.C. 2903.02(A), which

reads:

         {¶41} "(A) No person shall purposely cause the death of another or the unlawful

termination of another's pregnancy."

         {¶42} Involuntary manslaughter is defined at R.C. 2903.04:

         {¶43} "(A) No person shall cause the death of another or the unlawful

termination of another's pregnancy as a proximate result of the offender's committing or

attempting to commit a felony."

         {¶44} Reckless homicide is set forth at R.C. 2903.041:

         {¶45} "(A) No person shall recklessly cause the death of another or the unlawful

termination of another's pregnancy."

         {¶46} Upon our review of the record, we find the trial court did not abuse its

discretion by not giving a jury instruction on the lesser included offenses. Appellant
Stark County, Case No. 2011CA00286                                                        10


admitted to performing a sleeper hold on Crockett, releasing her, then, after she started

complaining and mentioning her children's father, again performing the hold and cutting

off her air supply until she died. The coroner testified at trial such a hold would result in

death after three to four minutes. Appellant would have watched Crockett struggle and

try to catch her breath, knowing the effect of cutting off her ability to breathe. The

record clearly supports the jury's finding Appellant purposely intended to cause the

death of Monique Crockett. We find the self-serving evidence Appellant relies upon

insufficient to warrant the requested instructions.

       {¶47} Appellant's second assignment of error is overruled.

                                                III.

       {¶48} In the third assignment of error, Appellant argues the trial court committed

prejudicial error during jury deliberations.

       {¶49} At trial, the jury indicated it had reached a verdict. The jury then returned

a verdict of guilty. In polling the jurors individually, Juror No. 10 asked to speak with the

Judge privately. When Juror No. 10 was asked if this was her individual and collective

verdict, she answered it was her collective verdict, but was not her independent verdict.

She also indicated members of the victim's family were staring her down. Earlier in the

proceedings Juror No. 10 indicated she was uncertain whether her knowledge of the

defendant would influence her decision despite her earlier indication during voir dire she

could be fair and impartial.

       {¶50} The trial court then instructed the jury as follows,

       {¶51} “The Court: Juror No. 10, I’m going to ask you the question again and you

just need to give me an answer.
Stark County, Case No. 2011CA00286                                                     11


       {¶52} “With respect to the guilty verdict as it relates to the charge of murder, is

that your individual verdict and the collective verdict of the jury?

       {¶53} “Juror No. 10: To be honest, it is a collective verdict.       It is not my

independent verdict.

       {¶54} “The Court: Very well. Ladies and Gentlemen, in that case there is no

verdict.

       {¶55} “And at this point in time I am required by law to read to you a specialized

instruction.

       {¶56} “In a large proportion of cases absolute certainty can not be attained or

expected.

       {¶57} “Although the verdict must reflect the verdict of each individual juror and

not mere acquiescence in the conclusion of other jurors, each question submitted to you

should be examined with proper regard and deference to the opinions of others.

       {¶58} “It is desirable that the case be decided. You are selected in the same

manner and from the same source as any future jury would be.

       {¶59} “There is no reason to believe the case will ever be submitted to a jury

more capable, impartial, or intelligent than this one.

       {¶60} “Likewise, there is no reason to believe that more or clearer evidence will

be produced by either side.

       {¶61} “It is your duty to decide the case if you can do - - if you can

conscientiously do so. You should listen to one another’s opinions with a disposition to

be persuaded.
Stark County, Case No. 2011CA00286                                                        12


         {¶62} “Do not hesitate to reexamine your views and change your position if you

are convinced it is erroneous.

         {¶63} “If there is disagreement, all jurors should reexamine their position given

that a unanimous verdict has not been reached.

         {¶64} “Jurors for acquittal should consider whether their doubt is reasonable

considering that it is not shared by others equally honest who have heard the same

evidence with the same desire to arrive at the truth and under the same oath.

         {¶65} “Likewise, jurors for conviction should ask themselves whether they might

not reasonably doubt the correctness of a judgment not concurred in by all other jurors.

         {¶66} “At this time I’m going to return you to the jury deliberation room and ask

you to further deliberate with respect to these matters.

         {¶67} “Miss Hamilton, could you please return the jurors to the jury deliberation

room.”

         {¶68} Tr. at 630-633.

         {¶69} Appellant did not object to the instruction as given by the trial court.

         {¶70} The trial court also conducted a colloquy on the record with regard to the

interaction between Juror No. 10 and the victim's family, and concluded no

inappropriate conduct had occurred.

         {¶71} The jury returned to deliberations, and eventually reached a verdict of

guilty on both charges to which Juror No. 10 indicated it was her individual verdict and

the collective verdict of the jury. Tr. at 661. We find Appellant has not demonstrated

actual prejudice as a result of the actions of Juror No. 10.

         {¶72} The third assignment of error is overruled.
Stark County, Case No. 2011CA00286                                                        13


                                                IV.

       {¶73} In the fourth assignment of error, Appellant argues his conviction is

against the manifest weight and sufficiency of the evidence. Specifically, Appellant

argues he did not intend to cause the death of Monique Crockett.

       {¶74} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61

Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra.

       {¶75} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App .3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212, (1967), syllabus 1.
Stark County, Case No. 2011CA00286                                                      14


       {¶76} R.C. 2901.22 defines purpose, as a "person acts purposely when it is his

specific intention to cause a certain result" or to engage in conduct of a certain nature

regardless of what the offender intends to accomplish through that conduct. Persons

are presumed to have intended the natural, reasonable and probable consequences of

their voluntary acts. State v. Phillips, 74 Ohio St.3d 72.

       {¶77} The evidence demonstrates Appellant admitted to placing Crockett in a

sleeper hold. He stated he released her, but upon her complaining and mentioning the

father of her children, he placed her in the hold again, cutting off her airway, until she

stopped breathing. The Stark County Coroner testified at trial the hold would not have

resulted in death until after three to four minutes.

       {¶78} Based upon the evidence presented in the record, we find Appellant's

conviction for murder is supported by the manifest weight and sufficiency of the

evidence, and the jury did not lose its way in convicting Appellant of the charges herein.

       {¶79} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                               s/ William B. Hoffman _________________
                                               HON. WILLIAM B. HOFFMAN


                                               s/ Patricia A. Delaney _________________
                                               HON. PATRICIA A. DELANEY


                                               s/ Sheila G. Farmer __________________
                                               HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00286                                               15


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
JOSHUA ALEXANDER BABCOCK                  :
                                          :
       Defendant-Appellant                :        Case No. 2011CA00286


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
