         [Cite as State v. Feller, 2012-Ohio-6016.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NOS. C-110775
                                                                      C-110776
        Plaintiff-Appellee,                           :   TRIAL NOS. B-1105258
                                                                     B-1002708-B
  vs.                                                 :
                                                             O P I N I O N.
RILEY FELLER,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed as Modified

Date of Judgment Entry on Appeal: December 21, 2012



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings
and Scott M. Heenan, Assistant Prosecuting Attorneys, for Plaintiff-Appellee,

J. Rhett Baker, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Judge.

       {¶1}     Defendant-appellant Riley Feller appeals from the trial court’s

judgments convicting him of felonious assault, two counts of reckless homicide, and

having a weapon while under a disability. We affirm Feller’s convictions, but we

modify in part the sentence imposed for the offense of felonious assault.

                                   Factual Background


       {¶2}    In the case numbered B-1002708-B, Feller pled no contest to felonious

assault and was found guilty by the trial court. The underlying facts of that crime are

not relevant to this appeal, but Feller’s conviction stemmed from his role in the

beating of a homeless man. Feller was released on bond pending sentencing in that

case. While out on bond, Feller committed the following actions that led to him

being charged with two counts of reckless homicide and having a weapon while

under a disability in the case numbered B-1105258.1

       {¶3}    On January 6, 2011, Feller had spent the afternoon and early evening

drinking at his home with his girlfriend, Athene Nefos, and his close friend Michael

Hesson. Following an argument with Nefos, Feller left with Hesson, and the two

continued their drinking at the apartment shared by Hesson and his girlfriend,

Janice Svajda. Feller, a veteran of the United States Army who had been trained in

the use of the weapons, had taken a handgun from his apartment to Hesson’s. While

he and Hesson were drinking, Feller took apart the handgun. The weapon had been

double feeding, and Feller attempted to fix the malfunction. He continued to tinker


1 B-1105258 and B-1002708-B, along with their corresponding appellate cases, have been
consolidated for purposes of oral argument and decision by this court. But the cases were not
consolidated for briefing, and Feller has filed a separate appellate brief in each case.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



with the handgun after Svajda returned home, and he ignored requests from his

friends to remove the bullets from the weapon as he “messed with” it. As Feller

attempted to fix the handgun, it discharged and struck Svajda in the chest. Svajda

had been pregnant, and both she and her unborn child died from the resulting

injuries.

                                     Speedy Trial


       {¶4}   In his first assignment of error in the appeal numbered C-110775,

Feller challenges his conviction for the reckless homicide terminating Svajda’s

pregnancy on speedy trial grounds.

       {¶5}   Feller was indicted for this charge on August 16, 2011. But he contends

that the charge dated back to an earlier indictment, and that any time waivers

executed under the earlier indictment were inapplicable to this charge. Feller’s

argument is not demonstrated in the record.

       {¶6}   The record before this court contains an indictment issued on August

16, 2011. Feller executed a waiver of time for speedy trial purposes on September 7,

2011. And his jury trial began on October 24, 2011. Based on the record before this

court, Feller was tried for the reckless homicide terminating Svajda’s pregnancy

within the time period set forth in R.C. 2945.71. Feller’s assignment of error is

overruled.

                               Witness Demonstration


       {¶7}   In his second assignment of error in the appeal numbered C-110775,

Feller argues that the trial court violated his right to present a proper defense when it




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denied his request to demonstrate, using a gun and dummy bullets, his exact

movements at the time that Svajda was shot.

       {¶8}    A trial court has broad discretion to control the proceedings in its

courtroom. State v. Brewster, 1st Dist. Nos. C-030024 and C-030025, 2004-Ohio-

2993, ¶ 70. The trial court likewise has discretionary control over the admission and

exclusion of evidence. State v. Vanover, 1st Dist. No. C-990104, 2000 Ohio App.

LEXIS 4469, *9 (Sep. 29, 2000). No abuse of discretion occurred in the trial court’s

denial of Feller’s request. The trial court was rightfully concerned about safety issues

stemming from the use of a weapon and any type of bullets in its courtroom. And

Feller had previously demonstrated to the jury various movements and actions that

he had taken with the weapon prior to the shooting, so he suffered no prejudice as a

result of the trial court’s denial. Feller’s assignment of error is overruled.

                                    Jury Instructions


       {¶9}    In his third assignment of error in the appeal numbered C-110775,

Feller argues that the trial court improperly instructed the jury on the charge of

having a weapon while under a disability.

       {¶10} With respect to this charge, the trial court instructed the jury that

               [t]he defendant is charged with having weapons while

               under disability.    Before you can find the defendant

               guilty, you must find beyond a reasonable doubt that on

               or about the sixth day of January, 2011, and in Hamilton

               County, Ohio, the defendant knowingly acquired, had,

               carried or used a firearm and that the defendant was

               under indictment for felonious assault. * * * It is not



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                       OHIO FIRST DISTRICT COURT OF APPEALS



              necessary for the state to prove that the defendant knew

              he was under indictment for felonious assault while

              possessing a firearm.

Feller argues that the court erred by instructing the jury that the state was not

required to prove a culpable mental state with respect to Feller’s knowledge of his

indictment for felonious assault.

       {¶11} State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d

347, is dispositive of Feller’s argument. In Johnson, the court held that

              [a] conviction for violation of the offense of having

              weapons while under disability as defined by R.C.

              2923.13(A)(3) does not require proof of a culpable

              mental state for the element that the offender is under

              indictment for or has been convicted of any offense

              involving      the    illegal   possession,   use,    sale,

              administration, distribution or trafficking in any drug of

              abuse.

Id. at paragraph one of the syllabus. Johnson involved a disability for a prior drug

offense under R.C. 2923.13(A)(3). In this case, Feller was under a disability for a

prior indictment for a felony offense of violence under R.C. 2923.13(A)(2). With

respect to the Johnson court’s ultimate holding, the type of disability the defendant

was under is of no import.

       {¶12} The Johnson court noted that the General Assembly had chosen to

require a mental state only for the first element of the offense of having weapons

under disability, specifically the possession and/or use of a weapon. Id. at ¶ 42.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Consequently, the court found that it did not need to turn to R.C. 2901.21(B), Ohio’s

statutory provision outlining when a mental state should be read into an offense that

does not otherwise specify a degree of culpability. Id. Absent the applicability of

R.C. 2901.21(B), the court held that the state was not required to prove a culpable

mental state for the latter element of R.C. 2923.13(A)(3) pertaining to a prior

indictment or conviction for a drug related offense. Id.

       {¶13} R.C. 2923.13(A)(2) and (A)(3) differ only in the specified type of prior

indictment or conviction. We hold that Johnson applies equally to the offense of

having a weapon while under a disability under R.C. 2923.13(A)(2), and that the

state was not required to prove that Feller knew he had been under indictment for

felonious assault.

       {¶14} The trial court properly instructed the jury on the offense of having a

weapon while under a disability. Feller’s assignment of error is overruled.

                             Prosecutorial Misconduct


       {¶15} In his fourth assignment of error in the appeal numbered C-110775,

Feller argues that the trial court erred in permitting the prosecutor to conduct an

improper voir dire.

       {¶16} Feller objects to the prosecutor’s questions concerning whether the

community had a right to a verdict in its favor. The test for prosecutorial misconduct

is whether the prosecutor’s questions were improper, and, if so, whether the

improper questions prejudicially affected the defendant’s substantial rights. State v.

Glenn, 1st Dist. No. C-090205, 2011-Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio

St.3d 13, 14-15, 470 N.E.2d 883 (1984).

       {¶17} The following exchange occurred during voir dire:


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       STATE: If both sides get a fair trial, do the people that live in

       Hamilton County have a right to a verdict in their favor?

       DEFENSE: Objection, Your Honor. That’s not the law.

       STATE: I think, if I’m making my point, is they don’t have a

       right to it; they have a right to a fair process.

       DEFENSE: I made an objection here.

       COURT: It’s overruled.

       STATE: I hope you understand what I mean is that if both

       sides get a fair trial, the people who live in this community

       don’t have a right to a verdict in their favor.

       DEFENSE: Objection to ‘the people in the community.’

       COURT: Overruled.

       STATE: The people who live in the community don’t have a

       right to a verdict in their favor; they have a right to a verdict

       that is fair to the law and to the facts. Do you know what I am

       saying? In other words, just because somebody’s charged with

       a crime, that people in this community don’t deserve a verdict

       of guilty, okay. And just the same thing with the defendant.

       Just because if the defendant gets a fair trial, that doesn’t

       entitle him to a not guilty verdict.

       {¶18} These comments were not improper. Viewed in context, it is clear that

the prosecutor was attempting to illustrate that both the state and the defendant are

entitled to a fair trial.    The trial court did not err in permitting this line of

questioning. Feller’s assignment of error is overruled.




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                        OHIO FIRST DISTRICT COURT OF APPEALS


                              Sufficiency and Weight


       {¶19} In his fifth assignment of error in the appeal numbered C-110775,

Feller argues that his convictions for reckless homicide were not supported by

sufficient evidence and were against the manifest weight of the evidence.

       {¶20} When determining whether a conviction is supported by sufficient

evidence, this court must view all evidence and reasonable inferences in the light

most favorable to the prosecution and determine whether a rational trier of fact

could have found all the elements of the offense proven beyond a reasonable doubt.

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).          In

contrast, when reviewing the manifest weight of the evidence, we must weigh the

evidence and consider the credibility of the witnesses to determine whether the trier

of fact lost its way and committed such a manifest miscarriage of justice in finding

the defendant guilty that the convictions must be reversed. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶21} Feller was found guilty of two counts of reckless homicide under R.C.

2903.041(A), which provides that “[n]o person shall recklessly cause the death of

another or the unlawful termination of another’s pregnancy.” Pursuant to R.C.

2901.22(C), “[a] person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to

cause a certain result or is likely to be of a certain nature.” Feller argues that the

shooting of Svajda had been an accident, and that the state failed to prove that he

had acted recklessly.

       {¶22} The state presented testimony that Feller had spent the hours prior to

Svajda’s death consuming a large amount of alcohol and that he had attempted to




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                      OHIO FIRST DISTRICT COURT OF APPEALS



repair a malfunctioning handgun while drinking. Michael Hesson testified that he

had asked Feller to stop tinkering with the weapon, or, at the very least, to remove

the bullets from the weapon if he intended to keep “messing” with it. Feller ignored

both requests and continued to “mess with” the loaded weapon. Hesson further

asked Feller to refrain from pointing the weapon at Svajda. Feller again ignored

Hesson’s request. As he continued to tinker with the weapon, it fired and struck

Svajda. We find that Feller’s attempt to fix the weapon while under the influence of

alcohol, despite requests by his friends for him to stop, demonstrated a heedless

indifference for the consequences of his actions and was sufficient evidence to

establish that he acted recklessly.

       {¶23} Feller further argues that the state failed to present any evidence that

he was aware that Svajda had been pregnant at the time of her death. But the state

was not required to prove that Feller had knowledge of the pregnancy. It was solely

required to prove that Svajda had been pregnant, and that Feller had recklessly

caused the unlawful termination of her pregnancy. The state presented testimony

from Hamilton County Deputy Coroner Karen Looman that Svajda had been

pregnant at the time of her death. And we have already determined that the state

presented sufficient evidence that Feller had acted recklessly. Feller’s convictions for

the reckless homicide of Svajda and the reckless homicide of her unborn child were

supported by sufficient evidence.

       {¶24} We further find that Feller’s convictions for reckless homicide were not

against the manifest weight of the evidence. Feller admitted that he had shot Svajda,

but testified that the shooting had been an accident. Feller told the jury that he was

an Army veteran and had been extensively trained in the use of weapons.             He




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                      OHIO FIRST DISTRICT COURT OF APPEALS



testified that, in his opinion, his actions in attempting to fix the weapon had not been

unsafe. The jury was in the best position to judge the credibility of the witnesses. It

was entitled to reject Feller’s testimony that he had operated the weapon safely and

to conclude that he had behaved recklessly. This is not the rare case in which the

jury lost its way and created a manifest miscarriage of justice.

       {¶25} Feller’s assignment of error is overruled.

                               Motion to Withdraw Plea


       {¶26} In his second assignment of error in the appeal numbered C-110776,

Feller argues that the trial court erred by failing to conduct a hearing on his motion

to withdraw his plea and by denying that motion.

       {¶27} After his arrest on the reckless-homicide and having-a-weapon-while-

under-a-disability charges, Feller filed a motion to enforce his plea agreement, or in

the alternative to withdraw his plea to felonious assault, in the case numbered B-

1002708-B. After conducting a hearing on Feller’s motion, the trial court found that

the parties had never entered into a formal plea agreement, and it denied the motion.

       {¶28} Feller’s assertion that the trial court failed to hold a hearing on his

motion to withdraw his plea is incorrect. The trial court accorded Feller a hearing on

his motion. At that hearing, Feller elected to argue only the merits of that portion of

his motion concerning enforcement of the plea agreement. The trial court was not

required to accord Feller two separate hearings on each portion of his motion.

       {¶29} We further find that the trial court properly denied Feller’s motion to

withdraw his plea. Although a presentence motion to withdraw a plea should be

freely granted, a defendant does not have an absolute right to withdraw a plea prior

to sentencing. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). We will



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                     OHIO FIRST DISTRICT COURT OF APPEALS



not disturb a trial court’s ruling on a motion to withdraw a plea absent an abuse of

discretion. State v. Andrews, 1st Dist. No. C-110735, 2012-Ohio-4664, ¶ 16. A mere

change of heart on the part of the defendant is not a reasonable ground to support

the withdrawal of a plea. State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶

9.

       {¶30} Here, the record indicates that Feller’s motion to withdraw his plea

was based on nothing more than a change of heart. Feller failed to cooperate with

the state after being released on bond and he incurred multiple serious new charges.

We find that Feller had entered his plea knowingly, intelligently, and voluntarily, and

that the trial court did not abuse its discretion by denying his motion.

       {¶31} Feller’s assignment of error is overruled.

                                      Sentencing


       {¶32} In his sixth assignment of error in the appeal numbered C-110775,

Feller argues that the trial court erred in failing to merge his two convictions for

reckless homicide because they were allied offenses of similar import.

       {¶33} R.C. 2941.25(A), Ohio’s multiple-count statute, provides that, “[w]here

the same conduct by defendant can be construed to constitute two or more allied

offenses of similar import, the indictment or information may contain counts for all

such offenses, but the defendant may be convicted of only one.”

       {¶34} Because there were two victims of Feller’s crimes, his convictions were

not allied offenses of similar import and separate sentences were permitted. Feller

argues that Svajda was the victim of both reckless homicide charges because the state

had failed to demonstrate that her unborn child was viable and appropriately

classified as a person under R.C. 2901.01(B)(1)(a). Feller’s argument is flawed. R.C.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



2903.041, the reckless homicide statute, protects two categories of victims. The

statute states that “[n]o person shall recklessly cause the death of another or the

unlawful termination of another’s pregnancy.” See R.C. 2903.041(A).

       {¶35} The term unlawful termination of another’s pregnancy is defined in

R.C. 2903.09(A) as “causing the death of an unborn member of the species homo

sapiens, who is or was carried in the womb of another, as a result of injuries inflicted

during the period that begins with fertilization and that continues unless and until

live birth occurs.” The General Assembly elected to protect the unborn from the

moment of fertilization, not from a moment of viability. State v. Alfieri, 132 Ohio

App.3d 69, 78, 724 N.E.2d 477 (1st Dist.1998). We have held that criminal liability

may be premised upon the death of a non-viable fetus. Id. at syllabus.

       {¶36} Here, although Feller’s offenses arose from a single course of conduct,

each offense involved a separate victim, Svajda and her unborn child. See State v.

Wright, 1st Dist. No. C-080437, 2009-Ohio-5474, ¶ 62, (an unborn child qualified as

a victim separate and apart from its pregnant mother). The two counts of reckless

homicide were not allied offenses of similar import and the trial court properly

imposed separate sentences for these offenses.        Feller’s assignment of error is

overruled.

       {¶37} In his seventh assignment of error in the appeal numbered C-110775,

Feller argues that the trial court erred in imposing maximum and consecutive

sentences for the two offenses of reckless homicide and having a weapon while under

a disability in the case numbered B-1105258. The trial court imposed a sentence of

three years’ imprisonment for each offense and three years’ imprisonment for an

accompanying weapon specification. It made these sentences consecutive to each




                                              12
                     OHIO FIRST DISTRICT COURT OF APPEALS



other, as well as consecutive to the five year sentence that it had previously imposed

in the case number B-1002708-B. This resulted in an aggregate sentence of 17 years’

imprisonment.

       {¶38} When reviewing a sentence imposed by the trial court, we engage in a

two-step analysis. We first determine whether the sentences imposed were clearly

and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, 896 N.E.2d 124, ¶ 14. Here, all sentences imposed fell within the available

statutory ranges. And the trial court made all the required findings pursuant to R.C.

2929.14(C) before making the sentences consecutive.         Feller’s sentence was not

contrary to law. We next determine whether the trial court abused its discretion in

the imposition of sentence. Id. at ¶ 19. Feller’s actions resulted in the death of a

young woman and her unborn child. And he committed these crimes while awaiting

sentence on a separate case, after he had been accorded the privilege of being

released on bond. No abuse of discretion occurred in the imposition of sentence in

the case numbered B-1105258. Feller’s assignment of error is overruled.

       {¶39} In his first assignment of error in the appeal numbered C-110776,

Feller argues that the trial court erred in making his sentence for felonious assault in

the case numbered B-1002708-B consecutive to a sentence that had not yet been

imposed.

       {¶40} The trial court imposed a sentence of five years’ imprisonment for the

offense of felonious assault. The court then made that sentence consecutive to the

sentence that it would later impose in the case numbered B-1105258. Feller argues

that this was error. He is correct. In State v. White, 18 Ohio St.3d 340, 343, 481

N.E.2d 596 (1985), the Ohio Supreme Court held that a trial court had erred by




                                              13
                       OHIO FIRST DISTRICT COURT OF APPEALS



ordering a sentence to run consecutively with a sentence that had not yet been

imposed.

       {¶41} At the time of sentencing for the offense of felonious assault in the case

numbered B-1002708-B, the sentence in the case numbered B-1105258 had not yet

been imposed and was not going to be imposed immediately thereafter.

Consequently, the trial court erred by making the sentence imposed for felonious

assault consecutive to that sentence.       We modify the sentence imposed for the

offense of felonious assault in the case numbered B-1002708-B and vacate the

language making that sentence consecutive to the sentence imposed in the case

numbered B-1105258. Feller’s overall sentence remains the same, as the trial court

had additionally and appropriately made the same sentences consecutive when

imposing sentence in the case numbered B-1105258. Feller’s assignment of error is

sustained.

                                       Conclusion


       {¶42} The trial court’s judgments convicting Feller of felonious assault, two

counts of reckless homicide, and having a weapon while under a disability are

affirmed.      We modify the sentence imposed for felonious assault in the case

numbered B-1002708-B and vacate the imposition of consecutive sentences imposed

in that case. The sentences imposed by the trial court are otherwise affirmed.



                                                        Judgments affirmed as modified.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.


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