[Cite as State v. Spring , 2020-Ohio-4718.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY

STATE OF OHIO, Plaintiff-Appellee,

v. JEFFREY M. SPRING,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 JE 0014

Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 15-CR-8

BEFORE: Gene Donofrio, Cher y l L. Waite, David A. D’Apolito, Jud g es.

JUDGMENT: Affirmed

A tty. Jane Hanlin , (NO BRIEF FILED), Jefferson County Justice Center, 16001 Stat e Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee and Jeffrey M. Spring, (PRO SE), A672-693, P.O. Box 540, Saint Clai rsville, Ohio 43950- 0540, for Defendant-Appellant.– 2 –

Case No. 19 JE 0014 Dated: September 29, 2020

Donofrio, J. {¶1} Defendant-appellant, Jeffrey Spring, appeals from a Jefferson County Common Pleas Court judgement denying his postconviction petitio ns. {¶2} On January 30, 2014, appellant called 911 to report that he ha d shot Stephen Boyer during an alleged armed break-in. When police ar rived, they found no evidence of a struggle and no evidence of a break-in. They did find, however, Boyer dead with gunshot wounds, lying in front of appellant’s front door. There was a bloodstain several feet away that appeared to have been swept up with a br oom. Police located a bloodstained broom outside. {¶3} Officers questioned appellant in the backseat of a police crui ser. After being provided Miranda warnings, appellant stated: “I shot him once, went outside and shot him again in the head to make sure he was dead.” {¶4} Officers noted that Boyer had a knife in his hand, but that it was placed in an odd manner. The knife was sent to the BCI Crime Lab for tes ting, where it was determined that appellant’s was the only DNA present on the kni fe. {¶5} Officers attempted to find the firearm used in the crime, but appellant made various claims as to where the weapon might be, first claiming it was in his bedroom, and later stating that it might have been in the couch. Officers e ventually located the weapon during a search of the residence, inside a kitchen cabinet. Th e gun contained two spent shell casings and four live rounds. The bullet recovered from Boyer’s abdomen was tested and was concluded to have been fired from the weapon fou nd in appellant’s kitchen cabinet. {¶6} After the shooting, the sheriff interviewed appellant. Appell ant again admitted to shooting Boyer, once in the abdomen and again in th e head. Appellant claimed he fired the second shot to the head because he did not want to see Boyer suffer. Appellant also admitted that he had attempted to clean up the b lood with a broom, and that he had placed the knife in Boyer’s hand. {¶7} A Jefferson County Grand Jury indicted appellant on one count of murder, an unclassified felony in violation of R.C. 2903.02(A) with an attached firearm– 3 –

Case No. 19 JE 0014 specification, and one count of tampering with evidence, a thir d-degree felony in violation of R.C. 2921.12(A)(1). {¶8} The matter proceeded to a jury trial. Appellant testified in h is own defense, claiming he shot Boyer accidentally through his closed front do or. He testified he believed Boyer had left the premises, and therefore did not think he wou ld hit anyone when he fired his weapon th rough t he door. App ellant claimed that prio r to the shooting there were only seven bullet holes in the front door. After the shooting, investigators found there were nine bullet holes in the front door. {¶9} Appellant also admitted he lied about the victim breaking into his home with a knife. Instead, appellant said he and the victim had be en together at his home for approximately 30 to 40 minutes, when the two began to argue. H e then became agitated after observing his prescription medication bottles were moved. Appellant suspected Boyer had attempted to steal from him. He t hen pushed Boyer out of his house and shot twice through the closed front door. {¶10} The jury found appellant guilty as charged. The trial court s ubsequently sentenced him to 18 years to life in prison. {¶11} Appellant filed an appeal with this court arguing his trial co unsel was constitutionally ineffective. State v. Spring , 7th Dist. Jefferson No. 15-JE-0019, 2017- Ohio-768. We affirmed appellant’s conviction. {¶12} Appellant then filed several pro-se petitions for postconvict ion relief regarding the issue of ineffective assistance of counsel. The trial court denied the petitions. Appellant filed a timely notice of appeal on August 2, 2019. {¶13} Appellant, still proceeding pro se, raises four assignments o f error. Because all of appellant’s assignments of error assert the tria l court erred in denying his postconviction petition when he presented evidence of ineffecti ve assistance of counsel, we will address them together. {¶14} Appellant’s assignments of error state:

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE, DENYING HIM DUE PROCESS OF LAW UNDER THE OHIO AND U.S. CONSTITUTIONS, WHEN HIS PETITION FOR POSTCONVICTION RELIEF WAS DENIED WHEN HE PRESENTED EVIDENCE OF– 4 –

Case No. 19 JE 0014 INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS TRIAL DUE TO A FAILURE TO INVESTIGATE AND PRESENT EVIDENCE RELATED TO THE DOOR OF APPELLANT’S HOME.

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE, DENYING HIM DUE PROCESS OF LAW UNDER THE OHIO AND U.S. CONSTITUTIONS, WHEN HIS PETITION FOR POSTCONVICTION RELIEF WAS DENIED WHEN HE PRESENTED EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS TRIAL DUE TO A FAILURE TO INVESTIGATE THE EVIDENCE RELATED TO BULLETS FOUND AT THE SCENE OF THE CRIME.

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE, DENYING HIM DUE PROCESS OF LAW UNDER THE OHIO AND U.S. CONSTITUTIONS, WHEN HIS PETITION FOR POSTCONVICTION RELIEF WAS DENIED WHEN HE PRESENTED EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS TRIAL DUE TO A FAILURE TO INVESTIGATE THE EVIDENCE RELATED TO PILLS FOUND AT THE SCENE OF THE CRIME.

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE, DENYING HIM DUE PROCESS OF LAW UNDER THE OHIO AND U.S. CONSTITUTIONS, WHEN HIS PETITION FOR POSTCONVICTION RELIEF WAS DENIED WHEN HE PRESENTED NEWLY DISCOVERED EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL DUE TO A FAILURE TO INVESTIGATE THE EVIDENCE RELATED TO BULLETS FOUND AT THE SCENE OF THE CRIME.

{¶15} Appellant alleges numerous causes of ineffective assistance of counsel for various errors that he believes his counsel committed in no t investigating certain pieces of evidence. He faults his counsel for not investigati ng the front door and the bullets found in the victim for forensic evidence. He alleges that this evidence would– 5 –

Case No. 19 JE 0014 support his claim that the bullet was fired from inside the hou se from behind the closed door. Specifically, appellant provides testimony from a firear ms expert hired by his family that he claims support his argument. {¶16} The doctrine of res judicata provides that any issue that was or could have been raised on direct appeal is barred in later proceedings and is not subject to review. State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. {¶17} Generally, a claim of ineffective assistance of trial counsel should be raised in a direct appeal. State v. Dillard , 7th Dist. Jefferson No. 12 JE 29, 2014-Ohio-439, ¶ 21, 27; State v. Delgado , 7th Dist. Mahoning No. 15 MA 26, 2015-Ohio-5006, ¶ 18. A trial court properly dismisses a petition for postconviction re lief based on res judicata “when the defendant, represented by new counsel on direct appea l, fails to raise therein the issue of competent trial counsel and the issue could fairly have been determined without resort to evidence outside the record.” State v. Carosiello , 7th Dist. Columbiana No. 18 CO 0018, 2019-Ohio-2705, ¶ 28, quoting State v. Sturgill , 12th Dist. Clermont Nos. CA2014-01-003 and CA2014-07-049, 2014-Ohio-5082, ¶ 13. {¶18} In this case, the arguments raised by appellant could have, or should have been raised on direct appeal. In fact, appellant’s entire argu ment on direct appeal focused on his claim of multiple alleged instances of ineffective assis tance of counsel; however, it did not refer to the evidentiary issues he now raises. See Spring , 2017-Ohio-768, at ¶ 17. Nonetheless, appellant could have additionally raised the issues he now raises surrounding his counsel’s alleged failure to properly investiga te during his direct appeal. {¶19} As appellant points out in his brief, his trial counsel was in possession of the door to appellant’s house, which contained bullet holes tha t appellant asserts should have been forensically examined. Additionally, appellant testi fied at trial that his prescription medication bottles had been moved and he suspected appellant had attempted to steal from him. Spring , at ¶ 13. And there was a considerable amount of testimony at trial regarding the bullets that killed Boyer. Spring , at ¶ 8-9. 15. Thus, at the time of his direct appeal, appellant was aware of the issues he raised in postconviction. He could have, and should have, raised the issues in his direct appeal. Therefore, the trial court properly denied appellant’s postconviction petition s as the issues he raised were barred by the doctrine of res judicata.– 6 –

Case No. 19 JE 0014 {¶20} Accordingly, appellant’s four assignments of error are without merit and are overruled. {¶21} For the reasons stated above, the trial court’s judgement is hereby affirmed.

Waite, P. J., concurs. D’Apolito, J., concurs.[Cite as State v. Spring , 2020-Ohio-4718.]

For the reasons stated in the Opinion rendered herein, the assi gnments of erro r are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL This document constitutes a final judgment entry.