[Cite as State v. Dover, 2014-Ohio-3200.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCOURTNEY A. DOVER 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. Patricia A. Delaney, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2014 CA 00073 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2007 CR 00153 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 21, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO COURTNEY DOVER 

PROSECUTING ATTORNEY PRO SE 

KATHLEEN O. TATARSKY FRANKLIN MEDICAL CENTER 

ASSISTANT PROSECUTOR 1800 Harmon Avenue 

110 Central Plaza South, Suite 510 Columbus, Ohio 43223 

Canton, Ohio 44702-1413 
Stark County, Case No. 2014 CA 00073 2

Wise, P. J. 

{¶1} Defendant-appellant, Courtney A. Dover, appeals from the April 16, 2014, 

Judgment Entry of the Stark County Court of Common Pleas denying his “Motion for 

Plain Error Review.” 

{¶2} Plaintiff-appellee is the State of Ohio. 

{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which 

governs accelerated calendar cases, provides, in pertinent part: 

{¶4} “(E) Determination and judgment on appeal. The appeal will be 

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 

12(A) for the statement of the reason for the court’s decision as to each error to be in 

brief and conclusionary form. The decision may be by judgment entry in which case it 

will not be published in any form.” 

{¶5} This appeal shall be considered in accordance with the aforementioned 

rule. 

STATEMENT OF THE FACTS AND CASE

{¶6} The facts and procedural history of this case are as follows: 

{¶7} On January 12, 2007, Perry Township Police Officer William Watson 

responded to the scene of a shooting at the Marc's Plaza on Tuscarawas Street in Perry 

Township, Ohio. As he pulled into the parking lot, he saw a man lying on the ground 

bleeding from a large wound in the buttocks area. Officer Watson saw no weapon but 

taped off the area as a crime scene and asked for the names of any witnesses. Officers 

located the injured man's vehicle, still running, in the parking lot. Sarah Dotson, who 

was shopping with her daughter, told Officer Watson she heard what sounded like a cap 
Stark County, Case No. 2014 CA 00073 3

gun and saw a man stumble and collapse. She approached the injured man and 

determined that he was bleeding. The man requested that she contact his girlfriend. 

She then saw a dark car with circular brake lights leave the parking area. Ms. Dotson 

called 911. 

{¶8} The police did not recover a weapon or shell casings from the scene of the 

incident. Prior to being taken by ambulance to the hospital, the injured man told police 

that “Corey” had shot him. 

{¶9} The ambulance squad arrived and took the injured man to Aultman 

Hospital. The man was identified as George Curlutu, an unemployed felon. In 2000, he 

was convicted of possession of cocaine and marijuana and sentenced to three years in 

prison. In 2004, he was convicted of a second count of possessing cocaine and 

tampering with evidence. He served a two-year prison term. 

{¶10} Curlutu and appellant were acquaintances and met at St. Mary's Church in 

Massillon, Ohio at a Texas Hold-Em tournament. They occasionally played poker and 

smoked weed at appellant's residence on 4th Street near the Canton Baptist Temple. 

On the day of the shooting, appellant called Curlutu and asked to meet at the Aldi's 

parking lot. Sensing a chance to go on a “blunt ride”-where you smoke weed together-. 

Curlutu skipped his classes at barber school and met appellant at the parking lot. 

Curlutu knew appellant only as “C” or “Corey.” 

{¶11} Curlutu testified that on the day in question he smoked marijuana. He 

further stated that he was under the influence of marijuana at the time of the incident. 

Medical records indicated he also had cocaine and valium in his system. Curlutu denied 
Stark County, Case No. 2014 CA 00073 4

being under the influence of those substances. However, he admitted that he had used 

narcotics in the days preceding the incident. 

{¶12} Curlutu pulled into the parking lot and waited for appellant, who arrived 

driving a blue Chevrolet Impala with tinted windows. Curlutu noticed a little girl in a car 

seat dressed in a pink coat. Curlutu exited his car, leaving the motor running, and got 

into appellant's car. Appellant asked Curlutu if he could borrow $300 or $400. Curlutu 

told appellant he did not have money like that. Appellant responded by reaching down 

to the left hand part of the door and pulling out a longer barrel revolver. Curlutu's first 

reaction was to grab the revolver with his left hand. A struggle ensued and the revolver 

landed on the car seat. Curlutu opened the car door to run and was shot in the buttocks. 

{¶13} Curlutu fell down and appellant pulled out of the parking lot. Curlutu was 

taken to Aultman Hospital. Surgery was performed and eventually a deformed bullet-a 

.38 special or .357-caliber bullet-was removed from his buttocks area. 

{¶14} Detective Matthew Barker of the Perry Township Police Department was 

called to the scene to assist in the investigation of the shooting. Detective Barker talked 

with Curlutu at the hospital. Curlutu called his friend, Todd McCune, to learn more about 

the shooter. Detective Barker learned the shooter's first name was “Courtney,” that he 

drove a blue Chevrolet Impala with tinted windows and lived by the Canton Baptist 

Temple. Detective Barker also learned the shooter's cell phone number and that he had 

purchased the phone or minutes for the phone at Hever's Meats. Armed with the cell 

phone number, Detective Barker went to Hever's Meats and learned that the cell phone 

number belonged to appellant, and his address was 4456 4th Street N.W., Perry 

Township, Ohio. Curlutu showed Detective Barker the residence where the shooter 
Stark County, Case No. 2014 CA 00073 5

resided, and it matched the address of appellant that Detective Barker had obtained 

from Hever's Meats. 

{¶15} Detective Barker placed a photograph of appellant in a photo lineup with 

five other males with the same physical characteristics. Two days after the shooting, 

Curlutu identified appellant's photograph as the shooter and told Detective Barker that 

he was 100 percent sure of his identification. 

{¶16} Detective Barker went to the home on 4th Street identified as appellant's 

residence. Detective Barker saw signs that someone was home. He knocked on the 

door but received no response. Thirty minutes later Tammy Young, appellant's girlfriend 

and mother of his one-year-old daughter, came home. Ms. Young gave Detective 

Barker permission to enter the home. Inside the home Detective Barker found appellant 

carrying a blue cell phone with a telephone number (330) 371-3453. Detective Barker 

also collected from the home three coats or jackets belonging to appellant and a box of 

Winchester .38-caliber ammunition. A blue Chevrolet Impala belonging to Ms. Young 

was also at the residence. Ms. Young testified appellant had keys to the car. Ms. Young 

told the police that she was at work at the time of the incident. Appellant was watching 

their child when she left but could have taken the child to a baby sitter. 

{¶17} The three coats or jackets belonging to appellant were taken from the 

home and sent to the Stark County Crime Laboratory for DNA testing. Officers also 

obtained and sent to the Crime Laboratory oral swabs from the victim for comparison. 

Kylie Graham, a technician with the laboratory, compared three areas of bloodstains on 

a gold coat belonging to appellant with the oral swabs taken from the inner cheek of 
Stark County, Case No. 2014 CA 00073 6

Curlutu. Graham opined that the bloodstains on the coat matched Curlutu's blood in 

three areas. 

{¶18} On February 20, 2007, the Stark County Grand Jury indicted appellant on 

one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2),a felony of 

the second degree, one count of improperly handling firearms in a motor vehicle in 

violation of R.C. 2923.16(B), a felony of the fourth degree, and one count of 

endangering children in violation of R.C. 2919.22(A), a misdemeanor of the first degree. 

The charge of felonious assault was accompanied by a fireman specification. At his 

arraignment on February 23, 2007, appellant entered pleas of not guilty to the charges. 

{¶19} Subsequently, a jury trial commenced on April 10, 2007. At the conclusion 

of the evidence and the end of deliberations, the jury, on April 11, 2007, found appellant 

guilty of all charges. As memorialized in a Judgment Entry filed on April 18, 2007, 

appellant was sentenced to an aggregate sentence of ten (10) years in prison. 

{¶20} Appellant appealed his conviction and sentence. Pursuant to an Opinion 

filed in State v. Dover, 5th Dist. Stark No. 2007-CA-00140, 2008-Ohio-1071, this Court 

affirmed appellant’s conviction and sentence. 

{¶21} On May 23, 2011, appellant filed a Motion to Correct an Unlawful 

Sentence, arguing that the charges of improperly handling firearms in a motor vehicle 

and endangering children were allied offenses and “thus Subject to Merger in the 

prosecution arising out of the Defendant’s felonious assault on the victim.” The motion 

was denied via a Judgment Entry filed on June 9, 2011. 

{¶22} Thereafter, on August 15, 2011, appellant filed a Motion to Correct Illegal 

Sentence, arguing that the verdict form for felonious assault failed to conform to the 
Stark County, Case No. 2014 CA 00073 7

mandates set forth on State v. Pelfrey, 112 Ohio St.3d 422, 2007–Ohio–256, 860 

N.E.2d 735. The trial court, as memorialized in a Judgment Entry filed on August 18, 

2011, denied appellant’s motion. The trial court, in its Judgment Entry, held that even if 

it were to construe appellant’s motion as a Petition for Post Conviction Relief, the same 

was not timely filed and also the arguments raised in appellant’s motion were not raised 

on direct appeal. 

{¶23} This Court affirmed the conviction and sentence in State v. Dover, 5th 

Dist. Stark No. 2011CA000193, 2012-Ohio-1181. 

{¶24} On October 1, 2012, Appellant filed another motion captioned as a "motion 

to correct and resentence", wherein he repeated his Pelfrey and allied offense 

arguments. Appellant requested that the trial court give him a more lenient sentence 

than the seven year sentence he received. In its judgment entry, the trial court rejected 

his motion. 

{¶25} Appellant filed his third appeal with the assistance of the Ohio Public 

Defender. This Court rejected his appeal citing the doctrine of res judicata. Slate v. 

Dover, 5th Dist. Stark No. 2012CA00204, 2013-Ohio-2634. 

{¶26} On April 11, 2014, appellant filed a motion entitled "Motion for Plain Error 

Review" claiming that the indictment was defective violating his right to a unanimous 

jury verdict. In its judgment entry, the trial court denied the motion finding that the 

arguments he made had already been disposed of in this Court's previous three 

opinions. See Judgment Entry April 16, 2014. 

{¶27} Appellant now brings this fourth appeal, assigning the following error for 

review: 
Stark County, Case No. 2014 CA 00073 8

ASSIGNMENT OF ERROR

{¶28} “I. THE TRIAL COURT ERRED WHEN IT DENIED, WITHOUT A 

HEARING, MR. DOVER’S MOTION REQUESTING A PLAIN ERROR REVIEW OF HIS 

INDICTMENT UNDER CRIMINAL RULE 52(B) AND CRIMINAL RULE 12(H).” 

I 

{¶29} Appellant, in his sole Assignment of Error, argues that the trial court erred 

in denying his Motion for plain error review. We disagree. 

{¶30} In this most recent motion, Appellant argues that he was deprived of a 

unanimous jury verdict because the indictment charged him with felonious assault under 

R.C. 2903.11(A)(1) and/or A(2). 

{¶31} Upon our review, we find Appellant's motion should be construed as a 

petition for post-conviction relief and dismissed on the basis of res judicata, because 

Appellant could have raised his claims on direct appeal. As stated by the Supreme 

Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), 

paragraphs eight and nine of the syllabus: 

{¶32} “Under the doctrine of res judicata, a final judgment of conviction bars the 

convicted defendant from raising and litigating in any proceeding, except an appeal from 

that judgment, any defense or claimed lack of due process that was raised or could 

have been raised by the defendant at the trial which resulted in that judgment of 

conviction or on an appeal from that judgment.” 

{¶33} In the case sub judice, appellant could have presented this argument as a 

timely direct appeal; rather, he filed a Motion for Plain Error Review subsequent to the 

time when he could have raised the issue in a direct appeal. 
Stark County, Case No. 2014 CA 00073 9

{¶34} The doctrine of res judicata bars appellant from raising this issue anew via 

a motion for plain error review. Because appellant could have raised this claim on direct 

appeal, we find that the doctrine of res judicata is applicable and the trial court did not 

err in denying his Motion. 

{¶35} Appellant’s sole Assignment of Error is, therefore, overruled. 

{¶36} Accordingly, the judgment of the Stark County Court of Common Pleas is 

affirmed. 

By: Wise, P. J. 

Delaney, J., and 

Baldwin, J., concur. 

 

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