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July 2009
Club Ivy firesetter convicted of murder
DAYTON — James D. Williams III, accused of setting the Aug. 26 fire at the Club Ivy which killed the club’s chef, was convicted of two counts of aggravated arson and two counts of murder Thursday, July 30.
Williams has been on trial since Monday. The jury got the case late Wednesday, then decided to continue deliberations on Thursday morning. The verdict was announced after 1 p.m.
Williams was accused of setting the Aug. 26 fire at the Club Ivy, 3509 N. Main St. The fire claimed the life of Robert C. Fabia, 50, who was the chef and was still inside the structure.
The jury convicted Williams of: — One count of aggravated arson, under the part of the statute that covers an occupied structure. — One count of aggravated arson, under the part of the statute that covers agreement for hire. — Two counts of felony murder, which were contingent on convictions for the two aggravated arson counts. — One count of arson. — One count of involuntary manslaughter, which was contingent on a conviction for the arson count. — Two counts of possessing criminal tools, for the ladder and gas can that were used in the crime.
The jury acquitted Williams of a third count of aggravated arson, this one under the part of the statute that covers harm to a person, and a murder count that was contingent on that aggravated arson count.
Under Ohio law, a person can be convicted of murder, even if the defendant did not purposely kill another, should the defendant be convicted of certain high-level felonies, such as aggravated arson.
Williams, 28, of Trotwood, will be sentenced Aug. 13 by Montgomery County Common Pleas Judge Mary Wiseman. The murder and involuntary manslaughter counts will likely merge for the purposes of sentencing, since they all cover the same death. Involuntary manslaughter is a first-degree felony, punishable by up to 10 years in prison. Murder is an unclassified offense and is punishable by 15 years to life in prison.
Defense attorney Douglas Hess told the jury Wednesday that Williams was only guilty of arson, and that he had no idea that someone was inside the building, which was set on fire between 1 and 2 a.m. He urged the jury to reject the three aggravated arson and murder counts.
Final conspirator pleads guilty in mortgage fraud case
CINCINNATI — A Monroe woman, one of six people indicted in June 2008 on federal charges connected to an extensive mortgage fraud scheme, became the last of the six to plead guilty to felony charges on Wednesday, July 29.
Jessica A. Zbacnik, 42, appeared before U.S. District Judge Michael A. Barrett. She pleaded guilty to one count of conspiracy to commit money laundering and one count of conspiracy to commit mail fraud, wire fraud and money laundering.
The six defendants were part of a scheme that affected 210 residential properties, including 205 in Montgomery County,according to Gregory G. Lockhart, United States Attorney for the Southern District of Ohio.
In court, Zbacnik admitted that she was part of the conspiracy that took place between March 2002 and June 2008. The conspirators operated and controlled various mortgage and title insurance businesses and corporations.
According to the statement of facts filed in court, Zbacnik admitted that she had helped arrange, facilitate and manipulate documents associated with real estate sales and closings. The purpose was to fraudulently obtain excess mortgage loan proceeds generated from the sale of residential properties.
Zbacnik’s five co-conspirators were:
— Edward McGee, 74, of Dayton, who pleaded guilty on May 12, 2009 to conspiracy to commit money laundering.
— Kenneth O. McGee, 49, of Dayton, son of Edward, who pleaded guilty May 12, 2009 to conspiracy to commit mail fraud, wire fraud and money laundering and conspiracy to commit money laundering.
— Julian M. Hickman, 31, formerly of Centerville and now living in East Cleveland, who pleaded guilty to conspiracy and tax crimes on December 15, 2008.
— Robert Mitchell, 42, of Vandalia, who pleaded guilty to conspiracy to commit mail fraud, wire fraud and money laundering and conspiracy to commit money laundering on March 11, 2009.
— Kamal J. Gregory, 34, of Centerville, who pleaded guilty to conspiracy to commit mail fraud, wire fraud and money laundering and conspiracy to commit money laundering on April 14, 2009.
All six co-conspirators are awaiting sentencing.
Zbacnik faces up to 30 years imprisonment on the charge of conspiracy to commit mail fraud, wire fraud and money laundering, plus a $1 million fine.
For the other conspiracy count, she faces up to 20 years in prison, plus a fine of whichever is greater: $500,000 or twice the value of the property involved.
Club Ivy trial: the case goes to the jury
DAYTON — Assistant Montgomery County prosecutors told the jury that James D. Williams III is guilty. So did Williams’ defense attorney.
The difference is what they say he is guilty of.
Williams is accused of setting the Aug. 26 fire at the Club Ivy, 3509 N. Main St., which claimed the life of Robert C. Fabia, 50, who was the chef and was still inside the structure.
Williams, 28, of Trotwood, whose trial in Montgomery County Common Pleas Court started Monday is charged with three counts of aggravated arson, three counts of murder, arson and two counts of possessing criminal tools. Judge Mary Wiseman charged the jury with the case at 4:45 p.m.
The jury deliberated briefly before breaking off for the evening. Deliberations are to resume at 9 a.m. Thursday.
The murder counts are dependent on convictions for aggravated arson. A conviction on the arson count alone would not allow a conviction for murder, though the jury will be allowed to consider an involuntary manslaughter charge. Should the jurors decide that Williams is not guilty on the aggravated arson counts, or if they deadlock on those three charges, they could find him guilty of arson then consider involuntary manslaughter.
Involuntary manslaughter is a first-degree felony, punishable by up to 10 years in prison. Murder is an unclassified offense and is punishable by 15 years to life in prison.
Assistant county prosecutor Sarah Schenck told the jury during her closing argument that Williams is guilty of aggravated arson under three different parts of the statute: harm to person, harm to an occupied structure and agreement for hire. Therefore, he should be convicted of murder, she said.
“Robert Fabia was a hard worker and he worked late,” Schenck said. “And for that, he lost his life.”
Defense attorney Douglas Hess said that Williams was only guilty of arson, and that he had no idea that someone was inside the building, which was set on fire between 1 and 2 a.m.
“What he knows is very important, and he did not know that someone was there,” Hess said. “If you don’t know the structure is occupied, it’s just arson.”
Assistant county prosecutor Sandra Hobson disagreed with Hess’ interpretation, and said the prosecutors did not have to prove that Williams knew it was an occupied structure, just that it was one.
Hobson pointed out that Williams told Dayton homicide detective Dan Hall that he asked the man who hired him to torch the building whether it was occupied after he noticed Fabia’s car parked nearby. Hall also testified that Williams said he stomped his feet on the roof and jiggled wires to check if someone was still inside.
“That’s going through his head,” Hobson said.
Earlier Wednesday, Hall testified Williams told him that he was paid $500 to set the fire, but did not know anyone was inside the bar. Hall identified the man who Williams said hired him to set the fire and accompanied him that night. That man was not been charged in the case.
Williams said that another, unidentified person hired the second man to set the fire, paying that man $1,000. The unidentified person apparently had a financial dispute with the club’s owner, Hall said.
On Tuesday, Dayton fire investigator Victoria Carr testified that she found a ladder next to the club. Her investigation showed that the perpetrator poured gasoline down a roof vent, then set it on fire, she said.
Hall said Wednesday that Williams admitted taking a ladder to the scene, pouring gasoline down a roof vent, then igniting the gasoline.
Female child porn suspect pleads guilty
DAYTON — A local woman accused of enticing an Arizona boy to make child pornography by emailing her a picture of his penis pleaded guilty Wednesday, July 29 to one count of possessing child pornography.
Kendra L. Sasser, 32, wept as assistant U.S. Attorney Sheila Lafferty read aloud the facts of the case. Her voice broke as she said the word “guilty.”
U.S. District Judge Thomas M. Rose ordered a pre-sentencing investigation and set a sentencing date of Oct. 29. Sasser could face up to 10 years in prison, and will be required to register as a sexual offender.
The boy was 16 at the time of the Internet communications, which occurred throughout August and September 2007. Sasser was arrested Sept. 25, 2007 at her Miamisburg home, 28 S. Ninth St. A federal magistrate placed her on home detention days later, and she has been living with her grandparents and wearing an electronic bracelet for the past 22 months, according to assistant Federal Public Defender Tom Anderson.
Sasser has also been in counseling to deal with several issues, Anderson told Rose.
Sasser had been in contact with the boy, who lived in Yuma, for several weeks and the two exchanged explicit photos, according to an affidavit filed by FBI Special Agent Scott W. Warren.
According to the complaint, Sasser used MySpace.com and XBox LIVE to entice the boy to produce images and videos of himself. During an online chat session Aug. 10, 2007 with him, Kendra Sasser noted she had been disappointed to learn his age.
The investigation started after Sasser’s husband, Ron, contacted the Montgomery County Sheriff’s Office on Aug. 6, 2007. He said his wife was having sexually explicit communications with minor males via the Internet, according to the affidavit.
Ron Sasser had been monitoring his home computer since late July, when he installed software designed to capture and record keystrokes.
She was using MySpace to chat with the boy when the discussion about his age occurred, according to the affidavit. The two were chatting online Aug. 27 when she sent the boy a picture of her face. He asked for more pictures.
According to the affidavit, she responded: “This last pic is 4 ur personal enjoyment grinzz you gotta make sure this last pic no one sees okay?” she wrote. “You might wanna hide this one. You can’t let parents see it or ur screwed srsly!”
Sasser downloaded a picture of her genitals from her cell phone and e-mailed it to him. They then continued in sexually explicit conversation.
“It’s weird because of the age difference and because you live on the other side of the country, that’s what’s weird,” the boy wrote in the middle of the conversation.
“Ohhhhhhh now who is bringin up the age thing?” she responded.
On Sept. 4, she asked the boy for a picture of his genitals. He sent one. After Sasser asked for another, he sent a second.
During their online chats, the two also discussed using Xbox LIVE video chat to give a “free show to each other.” The boy said he did not have the money.
On Sept. 11, Sasser bought a $40 gift card from a Game Stop store in Centerville and mailed it to the boy.
GameStop determined the card was used Sept. 14 to purchase an Xbox LIVE Web camera from an EB Games store in Yuma.
The boy’s MySpace profile identified him as 16 years old in 2007. The FBI confirmed his age through the registrar at a high school in Yuma, according to the affidavit.
Club Ivy trial: Defendant admitted setting fire, according to poilce; closing arguments later Wednesday
DAYTON — Closing arguments in the trial of James D. Williams III, charged with setting a bar fire that killed a man, will be Wednesday afternoon, July 29.
Assistant Montgomery County prosecutors rested just before noon, after presenting witnesses for three days. The defense rested immediately afterward without presenting any witnesses.
Williams, 28, is on trial for three counts of aggravated arson, three counts of murder and two counts of possession of criminal tools.
The Aug. 26 fire at the Club Ivy, 3509 N. Main St., claimed the life of Robert C. Fabia, 50, who was the chef. Fabia, who often slept there on a couch in the back, was found dead in the kitchen area.
Earlier Wednesday, Dayton homicide Detective Dan Hall testified that investigators did not have any suspects in the fire until Williams’ girlfriend called police on Oct. 2 and gave them his name.
Hall said he interviewed Williams in the Montgomery County Jail, and Williams told him that he was paid $500 to set the fire, but did not know anyone was inside the bar.
“He told me that he felt like he was set up,” Hall said. “He did cry at times, several times.”
Hall identified the man who Williams said hired him to set the fire and accompanied him that night. That man was not been charged in the case.
Williams said that another, unidentified person hired the second man to set the fire, paying that man $1,000. The unidentified person apparently had a financial dispute with the club’s owner, Hall said.
On Tuesday, Williams’ ex-girlfriend Valerie Heyes, the woman Hall said turned him in, testified that Williams asked her to watch the news the morning after the fire, though he did not tell her what to watch for. When Heyes told him that someone had died in the fire, Williams appeared surprised and became upset, Heyes said.
Also Tuesday, Dayton fire investigator Victoria Carr testified that she found a ladder next to the club. Her investigation showed that the perpetrator poured gasoline down a roof vent, then set it on fire, she said.
Hall said Wednesday that Williams admitted taking a ladder to the scene, pouring gasoline down a roof vent, then igniting the gasoline.
Walmart robber pleads out; alleged accomplice to go to trial
DAYTON — One of the two men accused of robbing and shooting a 28-year-old woman at a Moraine Walmart Supercenter pleaded guilty Friday, July 24, to complicity to commit aggravated robbery.
La’Shawn Porcher, 46, of Dayton, will be sentenced Aug. 13 by Montgomery County Common Pleas Judge Mary Wiseman. He was to be tried, along with his co-defendant, Richard T. Elijah, on Aug. 3. Elijah is still scheduled to go to trial.
Porcher was indicted on two counts. The second, complicity to commit felonious assault, was dropped under the plea agreement reached with the court. The charge he pleaded to is a first-degree felony, punishable by up to 10 years in prison, but under the agreement, he will be sentenced to between five and eight years.
Had he been convicted of both charges, Porcher could have faced up to 18 years in prison.
The incident occurred Dec. 20 at the store at 1701 W. Dorothy Lane. Gina King was wheeling a shopping cart to her car when she was robbed and shot in the abdomen. She was released from Miami Valley Hospital six days later.
Less than an hour after the robbery, Moraine police arrested Porcher and Elijah, now 47 and also from Dayton.
Elijah had been released from prison just two days before the Walmart shooting for an April conviction for breaking and entering. He faces one count of aggravated robbery and two counts of felonious assault and could receive up to 26 years in prison.
Castillo verdict to be announced Aug. 4
DAYTON — Julio Castillo, the former Peoria Chiefs pitcher who hurled a baseball into the stands at Fifth Third Field, injuring a fan, will appear in Montgomery County Common Pleas Court on Aug. 4 to learn Judge Connie S. Price’s verdict.
Castillo’s trial for two counts of felonious assault started last week and ended with closing arguments Thursday, July 23. Since Castillo waived his right to a jury trial, Price will decide whether prosecutors have proven their case beyond a reasonable doubt
Price said Thursday that she would take the matter under advisement and issue a written decision. On Tuesday, July 28, she said she would instead deliver the verdict in open court.
Castillo is charged under two statutory definitions of felonious assault. One requires proving that he did “serious physical harm,” the other that he used a “deadly weapon.” The charges are second-degree felonies, punishable by up to eight years in prison, though the charges could merge for sentencing purposes should he be convicted of both.
Castillo was on the mound at Fifth Third Field on July 24, 2008, when a brawl started on the field. Castillo ran off the mound, then hurled a baseball toward the Dayton Dragons’ dugout. The ball went high and struck spectator Christopher McCarthy, 45, of Middletown, giving McCarthy a concussion.
Prosecutors contend that Castillo threw the ball at an unidentified Dragon with the intent to hurt him.
Defense attorney Dennis Lieberman told Price that Castillo aimed at netting in front of the dugout, to warn the Dragons to stay back as the two teams’ managers were pushing each other. Castillo did that because he does not speak English and had no other way to communicate, Lieberman said. Because he had no intent to harm anyone, he cannot be found guilty of felonious assault, Lieberman told Price last week.
Castillo, 22, is from the Dominican Republic. He remains under contract with the Chicago Cubs, who are paying his legal bills, but has not played since the incident at Fifth Third.
- Photos: Ex-pitcher on trial for assault
- Photos: Brawl breaks out at Dayton Dragons game
- Video: Watch the brawl unfold
Judge sentences bank robber to four years
DAYTON — A man convicted of robbing a Riverside bank was sentenced Friday, July 24, to four years in prison.
Sean A. McLeod, 32, pleaded guilty to one count of robbery. Montgomery County Common Pleas Judge Timothy N. O’Connell also sentenced McLeod to six months in prison for a receiving stolen property charge in another case, but ordered that the six months be served concurrently with the four-year sentence.
McLeod was charged in the Feb. 23 robbery of the National City Bank, 182 Woodman Drive. Butler Twp. police arrested him on March 15, two days after an arrest warrant was issued.
Longtime bank robber pleads guilty to Huber Heights heist
DAYTON — A New Jersey man who robbed a Fifth Third bank in Huber Heights, then led police on a chase that ended with a crash that injured an officer, pleaded guilty Friday to one count of bank robbery.
Randy Lee Mora, 54, of Williamstown, New Jersey, will be sentenced in U.S. District Court on Oct. 31. Bank robbery carries a sentence of 20 years imprisonment, $250 thousand fine and supervised release of three years, said Gregory G. Lockhart, United States Attorney for the Southern District of Ohio.
Prior to his arrest, Mora spent most of the previous 20 years in federal prisons for bank robbery convictions.
Mora entered the bank, 7730 Brandt Pike, on July 8, 2008, and gave a teller a note demanding money. Mora then took the cash and fled the bank in a stolen Ford Ranger with New Jersey plates, but a witness followed Mora and called police as Mora stopped at an Englewood gas station, according to an affidavit of an FBI agent filed with the criminal complaint.
While at the gas station, Mora discarded a plastic bag and a dark shirt, glasses and hat he was wearing. Police tried to stop Mora as he left the gas station and headed west on Interstate 70. He managed to avoid one set of stop sticks, but hit a second, disabling his tires and damaging his rims, the affidavit said.
Mora led the officers across the Ohio-Indiana state line and hit a police cruiser parked in the median, injuring the officer who was ejected from the car by the force of the crash. Officers arrested Mora and found both the cash and the note he passed to the teller, the affidavit said.
Mora has been in custody since his arrest.
Mora was first sentenced for a 1988 armed bank robbery in Spokane, Wash., receiving a sentence of 21 months with three years supervised release, according to the records.
In 1990, while out on supervised release, he robbed a U.S. Bank branch in Spokane at gunpoint. This time, Mora got 19 years with five years supervised release.
After doing time in several federal prisons throughout the country and a failed stay at a halfway house, he was sent to the federal penitentiary at Lewisburg, Pa., to serve out his sentence. He was released May 16.
His probation case was transferred from the U.S. Eastern District Court of Washington to the District of New Jersey, where he was to be on probation until May 15, 2013.
The transfer was arranged so Mora could have the support of his family. His sister, Cheryl Mora, who lives in New Jersey, told the Dayton Daily News last year that she opened her home to him, hoping he would get back on his feet.
The week before the robbery, Mora became stressed and argumentative, then he stole Cheryl Mora’s boyfriend’s truck. He left her a note telling her he had taken it. Cheryl Mora said her brother suffers from several emotional and mental disorders he takes medication for, and he seemed unable to transition from prison to freedom.
Roger Dean Gillispie to get hearing concerning new evidence about an alternative suspect
DAYTON — Roger Dean Gillispie, twice convicted of raping three women in August 1988, won a partial victory from the Ohio 2nd District Court of Appeals, which found that a Montgomery County Common Pleas judge should have held a hearing to consider new evidence concerning an alternative suspect.
The three-judge panel which included Judges James Brogan, Mike Fain and Jeffrey E. Froelich, rejected Gillispie’s request for a new trial, but ordered Judge A.J. Wagner to hold a hearing concerning the alternative suspect.
That hearing will be far more limited than Gillispie’s attorneys wanted. The appeals court, also rejected Gillispie’s other arguments, finding that Wagner did not err by concluding without a hearing:
— that Gillispie failed to show that allegedly missing campground records and allegedly missing supplemental police reports constituted a violation of discovery rules. — determining that the evidence of alleged witness tampering and the new expert testimony regarding eyewitness identification did not entitle defendant to a new trial.
However, the court found that Gillsipie’s attorneys had presented new evidence regarding the other suspect, and that it was sufficient to require a hearing to “flesh out the evidence” and to determine whether a new trial would be warranted.
The Montgomery County Prosecutor’s Office argued in briefs and at a July 7 hearing before the appeals court that the alternative suspect’s “official presence in this case goes back to the first motion for a new trial” in 1991.
But the appeals court found that Gillispie’s attorneys, which include former Ohio Attorney General Jim Petro and Mark Godsey from the Ohio Innocence Project, did present new evidence about that suspect, including:
— that he has used the name “Roger” to refer to his brother, even though that was not his brother’s name. All three victims said the attacker referred to himself as “Roger.” Gillispie generally goes by his middle name. — that his voice was distinctly authoritative, as described by the victims. — that he has bragged that he was a contract killer. The attacker told two victims, twins who were abducted during the same incident, that he killed people for money. — That the man asked Godsey how the “ladies” described their assailant, before Godsey told him there were multiple victims. — That the man’s photographs are similar to the composites and descriptions by the victims.
In July 2008, Wagner denied Gillispie’s request for a new trial, stating there was “no new admissible evidence” that would meet evidence rules requirements. Wagner ruled from attorneys’ briefs, declining to have a hearing on the issue.
Gillispie, 44, who is serving a 16- to 50-year sentence at the London Correctional Institution, has maintained his innocence. He was convicted of two counts of rape, two counts of gross sexual imposition, two counts of kidnapping and one count of aggravated robbery, according to the Ohio Department of Rehabilitation and Correction.
Montgomery County prosecutors and Miami Twp. Police Department investigators remain adamant that Gillispie is guilty. They point to the fact that all three victims identified Gillispie as their attacker, though defense attorneys say that those identifications, made nearly two years after the attacks, were tainted through police practices.
His convictions involve the abductions and sexual assaults against twin sisters from Sidney on Aug. 20, 1988 and of a Harrison Twp. woman on Aug. 5, 1988. All of crimes were investigated by the Miami Twp. Police Department.
His first trial ended with convictions in February 1991. He won a new trial after untested crime scene hairs were found at the Miami Valley Regional Crime Laboratory. Later in 1991, he was re-tried and convicted again. The hairs were later found have come from the twins.
Castillo trial ends; judge will issue verdict at a later date
DAYTON — Montgomery County Common Pleas Judge Connie S. Price told attorneys at the Julio Castillo trial that she will take matter under advisement and will issue her verdict in a written decision at a later date.
Castillo’s trial for two counts of felonious assault started Tuesday, but ended with closing arguments Thursday, July 23. Since Castillo waived his right to a jury trial, Price will decide whether prosecutors have proven their case beyond a reasonable doubt.
Castillo, a former pitcher with the Peoria Chiefs, is on trial this week for two counts of felonious assault. The charges are second-degree felonies, punishable by up to eight years in prison, though the charges could merge for sentencing purposes should he be convicted of both.
Castillo was on the mound at Fifth Third Field on July 24, 2008, when a brawl started on the field. Castillo ran off the mound, then hurled a baseball toward the Dayton Dragons’ dugout. The ball went high and struck spectator Christopher McCarthy, 45, of Middletown, giving McCarthy a concussion.
Prosecutors contend that Castillo threw the ball at an unidentified Dragon with the intent to hurt him. Defense attorney Dennis Lieberman said Castillo aimed at netting in front of the dugout, to warn the Dragons to stay back as the two teams’ managers were pushing each other. Castillo did that because he does not speak English and had no other way to communicate, Lieberman said.
Castillo is charged under two statutory definitions of felonious assault. One requires proving that he did “serious physical harm,” the other that he used a “deadly weapon.”
Assistant county prosecutor Jon Marshall held up the baseball that hit McCarthy, then tapped in on the podium in front of him as he started his closing argument.
“This is the weapon that struck Christopher McCarthy in the head,” Marshall said. “This is the weapon that the defendant, Mr. Julio Castillo, used that evening to inflict as much damage as possible.”
Marshall said that McCarthy clearly suffered serious physical harm, since the ball caused a concussion, pulled out some of his hair, left stitching marks on his scalp and caused swelling that left him unable to wear a hard hat more than a week later.
Marshall also said that the baseball would qualify as a deadly weapon, though it normally is not used that way. He cited prior cases in which rocks, pool cues, baseball bats and bricks were all found to be deadly weapons.
He also said that though Castillo did not intend to strike McCarthy, Castillo should be prosecuted for felonious assault under the doctrine of transferred intent, because “his intended targets were emerging from that dugout.”
Lieberman took issue with those arguments, noting that none of the cases Marshall cited involved a baseball as a deadly weapon.
He also said transferred intent would not qualify because none of the Dragons were in the line of the ball when Castillo threw it. He noted that none of the Dragons players were called to testify.
“He was throwing at an empty dugout,” Lieberman said, tossing the ball into the jury box. “Like an empty jury box. There has to be somebody that he’s throwing the ball at. You can’t just say the Dayton Dragons were in the vicinity.”
Lieberman described Castillo as a “kid in a man’s body,” illiterate in Spanish, the only language he speaks, who grew up in desperate poverty in the Dominican Republic. Castillo, nervous and scared, reacted poorly when he threw the ball, but did not commit felonious assault, Lieberman said.
“It was not a good decision to do,” Lieberman said. “He reacted the best he can with his abilities.”
Assistant county prosecutor Tracey Ballard Tangeman told Price that Lieberman was raising “non-issues” to distract Price from the facts and the law.
She compared Castillo’s throw to someone firing a gun into the crowd. Under Lieberman’s interpretation of the doctrine of transferred intent, the gunman could not be prosecuted unless investigators knew who he intended to hit.
Castillo “doesn’t get a pass because we can’t put a name and number on the jersey of the intended target,” Tangeman said.
As for Lieberman’s point that none of the cases cited involved a baseball, Tangeman replied that Castillo “doesn’t get reward because this is the first case of its kind.”
- Photos: Ex-pitcher on trial for assault
- Photos: Brawl breaks out at Dayton Dragons game
- Video: Watch the brawl unfold
Castillo trial: The defendant takes the stand
DAYTON — Former Peoria Chiefs pitcher Julio Castillo testified Thursday, July 23, that he was trying to get Dayton Dragons players to retreat into their dugout when he hurled a baseball that hit a spectator.
“I threw the ball in front of the dugout, because I was nervous and I was frightened,” Castillo said, speaking through an interpreter. “I didn’t throw it to hit anyone.”
Castillo, 22, who is from the Dominican Republic, only speaks Spanish. He cannot read or write any language. When his defense attorney asked him to spell his last name, a standard question at the start of testimony, Castillo responded “I can’t spell it.”
Castillo, a former pitcher with the Peoria Chiefs, is on trial this week for two counts of felonious assault. The charges are second-degree felonies, punishable by up to eight years in prison, though the charges could merge for sentencing purposes should he be convicted of both.
Prosecutors claim Castillo was acting with anger when he threw the ball that hit Christopher McCarthy, 45, of Middletown. McCarthy suffered a concussion. Castillo’s intent was to hurt a member of the Dragons, prosecutors said.
But defense attorney Dennis Lieberman told Montgomery County Common Pleas Judge Connie S. Price on Tuesday that Castillo did not intend to hurt anyone. As Dragons players, reacting to a brawl on the field, began to run out from the dugout, Castillo threw the ball toward netting in front of the dugout to keep them from joining the fight.
Castillo threw to ball to communicate to the Dragons that they should stay back, since he could not communicate verbally, but the ball sailed over the dugout and hit the spectator, Lieberman told Price.
On Thursday, Castillo told Lieberman he was on the mound but getting nervous as the teams managers were arguing and starting to shove each other and it appeared a bench-clearing brawl was about to start. When he saw Dragons players leaving the dugout, he reacted, Castillo said.
During cross examination by assistant county prosecutor Tracey Ballard Tangeman, Castillo acknowledged that no Dragons player touched him until after he threw the ball, that no Dragons players were moving toward him in a photograph taken during the incident.
“It was something fast,” Castillo said.
Castillo also told Tangeman that no Peoria players hit any Dragons players before he hurled the ball. Asked if any Dragons players hit any Peoria players before he threw, Castillo answered “I didn’t see it.”
Castillo trial: Ryne Sandberg takes the stand
DAYTON — Former Chicago Cubs second baseman Ryne Sandberg, a member of the baseball hall of fame, took the witness stand Wednesday, July 22, as the first defense witness for Julio Castillo.
Sandberg was the manager of the Peoria Chiefs when Castillo hurled a ball into the stands at Fifth Third Field on July 24, 2008. The ball struck Christopher McCarthy, 45, of Middletown, in the left temple, causing a concussion.
Sandberg told defense attorney Dennis Lieberman that video and photographs of Castillo from that incident shows him making a regular throw, as opposed to a pitch with a full windup.
“It wouldn’t be his top velocity,” Sandberg said.
Castillo regularly pitches between 93 and 96 mph, Sandberg said.
Castillo would not be throwing at his full velocity, which has been measured from the mound at more than 90 mph, Sandberg said.
Castillo is on trial for two counts of felonious assault. Sandberg was not at that game because he was attending a hall of fame event at Cooperstown. He is now the manager of the Tennessee Smokies, a AA team in Knoxville.
Earlier Wednesday afternoon, assistant Montgomery County prosecutors rested their case. The trial is before Common Pleas Judge Connie S. Price. Since Castillo has waived his right to a jury trial, Price will decide whether prosecutors have proven their case beyond a reasonable doubt.
Castillo trial: Jail trusty testifies about conversation with Castillo
DAYTON — A man who met Julio Castillo in the Montgomery County Jail testified Wednesday, July 22, that Castillo told him that he threw a baseball toward the Dayton Dragons’ dugout because he was angry.
Eduardo Priego also told assistant county prosecutor Tracey Ballard Tangeman that Castillo said he threw the ball “at the Dragons players,” but the ball instead hit a spectator.
Castillo, a former pitcher with the Peoria Chiefs, is on trial this week for two counts of felonious assault. The charges are second-degree felonies, punishable by up to eight years in prison, though the charges could merge for sentencing purposes should he be convicted of both.
Prosecutors claim Castillo was acting with anger when he threw the ball that hit Christopher McCarthy, 45, of Middletown. McCarthy suffered a concussion. Castillo’s intent was to hurt a member of the Dragons, prosecutors said.
But defense attorney Dennis Lieberman told Common Pleas Judge Connie S. Price on Tuesday that Castillo did not intend to hurt anyone. As Dragons players, reacting to a brawl on the field, began to run out from the dugout, Castillo threw the ball toward netting in front of the dugout to keep them from joining the fight.
The reason, Lieberman said, is that Castillo, who is from the Dominican Republic, only speaks Spanish. Castillo threw to ball to communicate to the Dragons that they should stay back, since he could not communicate verbally, but the ball sailed over the dugout and hit the spectator, Lieberman said.
Priego, who was born in Mexico and is fluent in Spanish and English, was a trusty — an inmate with special privileges — at the jail on July 25, 2008, one day after the incident at Fifth Third Field. He told Tangeman that he spoke with Castillo because Castillo had no one else to talk to, since he didn’t speak English.
Castillo told Priego he was angry “at the Dragons team,” when he threw the ball, Priego testified.
During cross examination by Lieberman, Priego said that he first met Castillo hours before that conversation, when he acted as an interpreter for him as a Dayton police detective read Castillo his rights.
Priego also told Lieberman that he had been facing deportation due to “moral turpitude” and that he did not alert anyone to his conversation with Castillo until months later.
On re-direct by Tangeman, Priego said that he didn’t tell anyone because “I thought everything had finished.”
When Tangeman asked him if Priego had requested Castillo’s autograph, Priego responded “I still have it.”
He also said he was concerned about Castillo going to prison.
“I don’t want to see him go to jail,” Priego told Tangeman.
- Photos: Ex-pitcher on trial for assault
- Photos: Brawl breaks out at Dayton Dragons game
- Video: Watch the brawl unfold
Castillo trial: Man hit by baseball testifies about pain and injuries
DAYTON — For nine days after the baseball slammed into his left temple, Christopher McCarthy suffered from a throbbing headache, McCarthy testified Tuesday afternoon, July 21.
McCarthy, 45, of Middletown, was taken from Fifth Third Field to Miami Valley Hospital, where he was treated for a concussion. Julio Castillo, a pitcher formerly with the Peoria Chiefs is charged with two counts of felonious assault in the incident.
Castillo, 22, who is from the Dominican Republic, is on trial this week before Montgomery County Common Pleas Judge Connie S. Price.
McCarthy testified that he rode home with his eyes closed because of the pain.
“By that time, I had a very severe headache,” McCarthy said during questioning by assistant county prosecutor Tracey Ballard Tangeman. “The pain increased through the night. As the evening went on, it got worse.”
McCarthy had been sitting with his wife, his 7-year-old son and his nephew just above the Dayton Dragons dugout on July 24, 2008 when a brawl started on the field. At one point, Castillo ran off the mound and hurled a baseball toward the dugout, but it went high, according to prosecutors.
McCarthy said he saw the ball come toward him, but did not have time to react. The ball took out some of his hair and the stitching left marks on his scalp.
He did not lose consciousness, but “I was a little bit incoherent. I was not thinking clearly,” McCarthy said.
He could not read for the first three days and “I basically sat in dim light and tried to sleep,” he said.
He was able to do a little bit of work on the fourth day, but was not able to fully return until after nine days. Even then, he was limited, he said. McCarthy is a mechanical engineer who works in paper mills, and his head swelled up so much that his hard hat would not fit on his head,” McCarthy said.
During cross examination by defense attorney Dennis Lieberman, McCarthy said he had hired an attorney to pursue a civil lawsuit.
McCarthy also told Tangeman that he suffered from panic attacks starting in 1998, though they have been rare during the past seven years. He said he had one after he was struck by the ball.
“I was afraid of dying,” McCarthy said.
Prosecutors said Castillo was acting with anger when he threw the ball, and his intent was to hurt a member of the Dayton Dragons.
Lieberman told Price that Castillo did not intend to hurt anyone. As Dragons players, reacting to the brawl on the field, began to run out from the dugout, Castillo threw the ball toward netting in front of the dugout to keep them from joining the fight. The reason, Lieberman said, is that Castillo only speaks Spanish.
Castillo threw to ball to communicate to the Dragons that they should stay back, since he could not communicate verbally, but the ball sailed over the dugout and hit the spectator, Lieberman said.
The charges are second-degree felonies, each punishable by up to eight years in prison and a $15,000 fine. The indictments list “a baseball” as the weapon.
He has waived his right to a jury trial, meaning that Price will decide whether prosecutors have proven him guilty beyond a reasonable doubt, which is why the attorneys directed their opening statements to her.
Video of the fight showed Castillo throwing a baseball toward the Dragons’ dugout.
Former Peoria pitcher’s felonious assault trial starts
DAYTON — The man who was struck by former Peoria Chiefs baseball pitcher Julio Castillo’s throw into the stands at Fifth Third Field suffered a concussion and had marks from the ball’s stitching in his scalp, an assistant Montgomery County prosecutor said Tuesday, July 21.
“This defendant, Julio Castillo, made a decision and he acted on that decision,” assistant county prosecutor Jon Marshall told Common Pleas Judge Connie Price. “He decided that he was going to hurt someone, anyone.”
Marshall said Castillo was acting with anger when he threw the ball that hit Chris McCarthy, of Middletown. His intent was to hurt a member of the Dayton Dragons, but he missed the dugout, Marshall said.
The ball hit McCarthy, who was sitting with his wife, son and nephew, “square in the temple, the must vulnerable part of the head,” Marshall said.
But defense attorney Dennis Lieberman told Price that Castillo did not intend to hurt anyone. As Dragons players, reacting to a brawl on the field, began to run out from the dugout, Castillo threw the ball toward netting in front of the dugout to keep them from joining the fight.
The reason, Lieberman said, is that Castillo, who is from the Dominican Republic, only speaks Spanish. Castillo sat quietly, listening to his interpreter during his attorney’s statement.
Castillo threw to ball to communicate to the Dragons that they should stay back, since he could not communicate verbally, but the ball sailed over the dugout and hit the spectator, Lieberman said.
“For which he is truly sorry,” Lieberman said. “He wasn’t throwing it at an individual.”
Lieberman also denied that Castillo was angry, but instead was frustrated with his own performance in the game, during which he beaned two batters and broke the leg of his team’s second baseman during a botched play.
“Julio was perhaps frustrated, but he wasn’t angry with the Dragons,” Lieberman said.
Castillo, 22, is charged with two counts of felonious assault. The charges are second-degree felonies, each punishable by up to eight years in prison and a $15,000 fine. The indictments list “a baseball” as the weapon.
He has waived his right to a jury trial, meaning that Price will decide whether prosecutors have proven him guilty beyond a reasonable doubt, which is why the attorneys directed their opening statements to her.
The brawl started when Chiefs interim manager Carmelo Martinez left his dugout to argue with Dragons manager Donnie Scott. When Martinez pushed Scott, the benches emptied.
Video of the fight showed Castillo throwing a baseball toward the Dragons’ dugout.
Martinez and Scott along with eight Dragons and seven Chiefs players were suspended by the Midwest League. Castillo was suspended for 60 games and fined $1,000. He already had been removed from Peoria’s roster.
Former Peoria pitcher goes on trial Tuesday
DAYTON — The trial of former Peoria Chiefs baseball pitcher Julio Castillo, accused of beaning a Dayton Dragons fan in the head during a game last year, will start Tuesday, July 21 before Montgomery County Common Pleas Judge Connie S. Price.
Castillo, 22, was indicted on two counts of felonious assault. He has waived his right to a jury trial, meaning that Price will decide whether prosecutors have proven him guilty beyond a reasonable doubt.
The charges stem from his actions during a widely publicized brawl July 24 involving the Chiefs and the Dayton Dragons at Fifth Third Field. Castillo is accused of throwing a baseball toward the home team’s dugout. The ball sailed high and struck a fan from Middletown in the head.
The charges are second-degree felonies, each punishable by up to eight years in prison and a $15,000 fine. The indictments list “a baseball” as the weapon.
The brawl started when Chiefs interim manager Carmelo Martinez left his dugout to argue with Dragons manager Donnie Scott. When Martinez pushed Scott, the benches emptied.
Video of the fight showed Castillo throwing a baseball toward the Dragons’ dugout.
Martinez and Scott along with eight Dragons and seven Chiefs players were suspended by the Midwest League. Castillo was suspended for 60 games and fined $1,000. He already had been removed from Peoria’s roster.
Jury convicts panhandler of murder
DAYTON — Kevin Alsup, the panhandler accused of killing another homeless man, was convicted Thursday, July 16, of all indicted charges, including two counts of murder.
Montgomery County Common Pleas Judge Frances E. McGee charged the jury with the case at 3:15 p.m. The jury deliberated for more than five hours before convicted Alsup of five felonies: the two murder counts, two counts of felonious assault and one count of tampering with evidence.
The murder counts and the felonious assault counts will merge for sentencing purposes. Alsup, 33, will be sentenced on Aug. 18.
Alsup was accused of killing Floyd E. Drummond, 57, who was sleeping in his sleeping bag when someone bludgeoned him with a heavy rock on Aug. 16. Dayton police discovered his body, still inside the sleeping bag, at 2:22 a.m. on Maxwell Drive, which parallels Interstate 75 between First Street and Monument Avenue.
The Montgomery County Coroner’s Office ruled that Drummond, who suffered several skull fractures, died from blunt force trauma to the head.
Drummond was sleeping with his arms crossed, “not even seeing anything coming, and never ever had a chance,” assistant Montgomery County prosecutor Michael Brush told the jury during closing arguments on Thursday.
According to prosecutors, Alsup and another man, Larry Hudson, Jr., were panhandling together that day but separated briefly. Hudson panhandled under an I-75 overpass, then returned to Maxwell Drive, where he saw Alsup holding a heavy rock, which he picked up and slammed down at least twice.
As Hudson got closer, he saw Drummond’s body. Hudson then followed Alsup a block north to the shore of the Great Miami River, where Alsup hurled the rock into the water. Tests done at the Miami Valley Regional Crime Laboratory showed Drummond’s blood was on the shirt Alsup had been wearing that day, according to prosecutors.
The attack came because, earlier in the evening, Drummond refused to give Alsup a cigarette, Brush told the jury on Monday.
Assistant county public defender Michael Pentecost told the jury that Alsup merely found Drummond’s body after he was beaten by an unknown attacker. Alsup was curious after seeing a heavy rock on Drummond’s face and picked it up, Pentecost said.
Alsup then realized that his fingerprints could be on the rock, so he panicked and threw the rock in the river, Pentecost said. He didn’t contact police because Alsup, as a homeless man, feared contact with them, Pentecost said.
“Don’t convict him of felonious assault or murder because he didn’t call the police,” Pentecost said.
Both Hudson and Alsup testified during the trial. Pentecost said Hudson, who is serving a sentence for a felony conviction, was not credible, and that Hudson admitted that he never saw the rock hit Drummond’s head.
That was because Hudson couldn’t see Drummond from where he was standing, but walked up and saw the body after the attack, assistant county prosecutor Dan Brandt told the jury. That should add credibility to Hudson’s testimony, Brandt said.
“Larry told you what he saw,” Brandt said. “He told you nothing more and nothing less.”
Brandt also told the jury that two homicide detectives testified that, though Alsup always denied killing Drummond, he did slip up once when describing Drummond’s body by adding the phrase “when I hit him.” Alsup then changed the subject, Brandt said.
Panhandler murder trial goes to the jury
DAYTON — The question of whether panhandler Kevin Alsup murdered another homeless man went to the jury on Thursday, July 16, the third day of his trial in Montgomery County Common Pleas Court.
Judge Frances E. McGee charged the jury with the case at 3:15 p.m.
Alsup is accused of killing Floyd E. Drummond, 57, who was sleeping in his sleeping bag when someone bludgeoned him with a heavy rock on Aug. 16. Dayton police discovered his body, still inside the sleeping bag, at 2:22 a.m. on Maxwell Drive, which parallels Interstate 75 between First Street and Monument Avenue.
The Montgomery County Coroner’s Office ruled that Drummond, who suffered several skull fractures, died from blunt force trauma to the head.
Alsup, 33, described by police as a known panhandler in the downtown area, is charged with murder, felonious assault and tampering with evidence.
Drummond was sleeping with his arms crossed, “not even seeing anything coming, and never ever had a chance,” assistant Montgomery County prosecutor Michael Brush told the jury during closing arguments on Thursday.
According to prosecutors, Alsup and another man, Larry Hudson, Jr., were panhandling together that day but separated briefly. Hudson panhandled under an I-75 overpass, then returned to Maxwell Drive, where he saw Alsup holding a heavy rock, which he picked up and slammed down at least twice.
As Hudson got closer, he saw Drummond’s body. Hudson then followed Alsup a block north to the shore of the Great Miami River, where Alsup hurled the rock into the water. Tests done at the Miami Valley Regional Crime Laboratory showed Drummond’s blood was on the shirt Alsup had been wearing that day, according to prosecutors.
The attack came because, earlier in the evening, Drummond refused to give Alsup a cigarette, Brush told the jury on Monday.
Assistant county public defender Michael Pentecost told the jury that Alsup merely found Drummond’s body after he was beaten by an unknown attacker. Alsup was curious after seeing a heavy rock on Drummond’s face and picked it up, Pentecost said.
Alsup then realized that his fingerprints could be on the rock, so he panicked and threw the rock in the river, Pentecost said. He didn’t contact police because Alsup, as a homeless man, feared contact with them, Pentecost said.
“Don’t convict him of felonious assault or murder because he didn’t call the police,” Pentecost said.
Both Hudson and Alsup testified during the trial. Pentecost said Hudson, who is serving a sentence for a felony conviction, was not credible, and that Hudson admitted that he never saw the rock hit Drummond’s head.
That was because Hudson couldn’t see Drummond from where he was standing, but walked up and saw the body after the attack, assistant county prosecutor Dan Brandt told the jury. That should add credibility to Hudson’s testimony, Brandt said.
“Larry told you what he saw,” Brandt said. “He told you nothing more and nothing less.”
Brandt also told the jury that two homicide detectives testified that, though Alsup always denied killing Drummond, he did slip up once when describing Drummond’s body by adding the phrase “when I hit him.” Alsup then changed the subject, Brandt said.
Prayer vigil shooter sentenced to 12-year term
DAYTON — A man who pleaded guilty to shooting two people near a peace and prayer vigil for a dead teen, a shooting that left the teen’s father dead, was sentenced Thursday, July 16 to 12 years in prison.
Kwame Lamont Eugene Nooks pleaded guilty Feb. 10 to voluntary manslaughter and aggravated assault. Under the plea agreement, he was to be sentenced to eight to 12 years.
“Nine children without a father because of what you did,” Montgomery County Common Pleas Judge Dennis J. Langer told Nooks, referring to the family of Dwight Hardy, before giving him the maximum under the plea agreement.
Nooks, 19, was accused of being one of two gunmen who on Sept. 16 fired into a car on Catalpa Avenue leaving the vigil, injuring Augustine O. Ubaike Jr., 23, and killing Dwight Hardy, 34, of Trotwood. The vigil was for Hardy’s son, Kendrick Pope, who was shot Sept. 11, police said.
Debra Wilson, Hardy’s mother, said he was “a good son. He was kind, loving, respectful and an all-around good guy.”
Nooks was originally to be sentenced March 5. Instead, Nooks changed attorneys. On March 19, his new attorney, Marshall Lachman, filed to withdraw the plea, arguing that Nooks was “pressured” into pleaded guilty and threatened with a murder charge for which he was never indicted. Nooks later withdrew that motion.
Two indicted in shooting death of Clayton man
DAYTON — A Montgomery County grand jury indicted two men Wednesday, July 15, on murder charges in connection with the June 2 shooting of a Clayton man.
Dalcapon Alpaccino Morris, 21, and Michael Deangelo Guy, 19, were also indicted on charges of aggravated burglary, aggravated robbery, two counts of kidnapping and two counts of felonious assault. All charges include firearm specifications, which would add a mandatory three years to any prison sentence.
The two are charged in the death of Richard A. Pogue, who was shot at 1369 Kingsley Ave. in what police said was a robbery attempt.
The defendants face a maximum sentence of 96 years to life, according to the Montgomery County Prosecutor’s Office.
Guy, who has been in the Montgomery County Jail since his June 21 arrest, will be arraigned on July 21. Morris is still at large, according to the prosecutor’s office.
Mortgage fraud case leads to charges against Waynesville couple and West Carrollton man
DAYTON — A federal grand jury has indicted three people on charges connected to a $17 million mortgage fraud scheme, including a Waynesville man who already been charged in the case.
The U.S. Attorney’s Office for the Southern District of Ohio announced the indictments Wednesday, July 15, one day after the grand jury handed them down.
Gregory S. Chew, 41, previously charged in an April 29 indictment with money laundering and structuring financial transactions, was charged in the new indictment with additional counts of conspiracy to launder money, mail fraud, and wire fraud.
Peggy Pierson, 46, also of Waynesville, and Richard Confer Jr., 42, of West Carrollton, were each been charged with conspiracy to launder money and wire fraud, and Confer was also indicted on mail fraud charges.
Chew and Pierson are described as a “Waynesville couple” in a statement issued by the U.S. Attorney’s Office.
Chew did business under the names Raging Bull Enterprises and All World Capital Corporation and Pierson did business under the name of Omega Title, LLC, according to court documents.
The two allegedly recruited “investors” to buy and sell real estate in the Dayton area using inflated property appraisals and false promises. False financial information was submitted to lenders in order to obtain mortgages at the inflated property values and this money was put to personal use.
Between July, 2003 and July, 2009, the three conspired to fraudulently obtain over $17 million in mortgage loans from more than 39 mortgage lending institutions, and they obtained more than $7.9 million for their personal uses. The scheme victimized more than 57 investors and more than 247 residential properties were sold and closed, according to the new indictment.
Chew is also charged with depositing the proceeds into his bank accounts between March 2005 and December 2007, and structuring the transactions by breaking down large deposits to evade IRS reporting requirements.
All three face possible imprisonment of up to 30 years on the wire fraud charge and 20 years on the conspiracy charge. In addition, Chew and Confer face 30 years on the mail fraud charge, while Chew faces additional imprisonment of 10 years for money laundering and 5 years on each count of structuring financial transactions.
New York dealers sentenced for bringing heroin to Dayton area
DAYTON — Three New York men, accused of bringing more than one kilogram of heroin to the Miami Valley between August 2007 and October 2008, were sentenced to prison Tuesday, July 14.
U.S. District Senior Judge Walter H. Rice sentenced: — Juan Solano, 43, to 120 months in prison. — Carlos Solano, 36, to 36 months in prison. — Carlos Tapia, 28, to 24 months in prison.
As part of the sentence, Carlos Solano forfeited his 2005 Audi Quattro A6. All three men will serve a 5-year period of supervised release, a form of parole, upon their release from prison.
The Solano brothers and Tapia pleaded guilty earlier this year to one count each of conspiracy to distribute and possession with intent to distribute heroin.
The conspiracy brought at least one kilogram of a mixture or substance containing heroin from New York into the Dayton area. The street value of the heroin exceeded $1 million, according to the Greene County A.C.E. Drug Task Force.
Juan Solano developed a relationship with a Dayton-area man to distributed heroin in the Miami Valley, according to the U.S. Attorney’s Office for the Southern District of Ohio, which did not identify the Dayton man.
Tapia drove heroin shipments to Ohio on several occasions, including two deliveries during the summer of 2008. After the heroin was sold, the Dayton-area co-conspirator sent cash back to Juan Solano.
Carlos Solano picked up drug proceeds from the Dayton-area co-conspirator on at least two occasions at a shopping center parking lot in West Virginia, using his 2005 Audi Quattro on the final occasion.
After FBI agents and A.C.E. Task Force detectives served a search warrant on the home of the Dayton co-conspirator and recovered evidence of the drug trafficking, the investigation ultimately led to the arrest of the three New York men in early October, 2008.
Trial opens for panhandler accused of murder
DAYTON — Floyd E. Drummond was in his sleeping bag with his hands and legs crossed when the rock smashed into his forehead.
“Floyd E. Drummond never had a chance,” assistant Montgomery County prosecutor Michael Brush told a jury Monday, July 13.
Kevin Alsup, 33, described by police as a known panhandler in the downtown area, is charged with murder, felonious assault and tampering with evidence. His trial started Monday and will continue Wednesday before Judge Frances E. McGee.
Drummond, 57, was found beaten on Saturday, Aug. 16. Dayton police discovered his body, still inside the sleeping bag, at 2:22 a.m. on Maxwell Drive, which parallels Interstate 75 between First Street and Monument Avenue.
The Montgomery County Coroner’s Office ruled that Drummond, who suffered several skull fractures, died from blunt force trauma to the head.
Brush told the jury that Alsup and another man, Larry Hudson, Jr., were panhandling together that day but separated briefly. Hudson panhandled under an I-75 overpass, then returned to Maxwell Drive, where he saw Alsup holding a heavy rock, which he picked up and slammed down at least twice, Brush said.
As Hudson got closer, he saw Drummond’s body, Brush said. Hudson then followed Alsup a block north to the shore of the Great Miami River, where Alsup hurled the rock into the water, Brush said.
Later, when the two separated, Hudson called police and reported the attack, Brush said.
Tests done at the Miami Valley Regional Crime Laboratory showed Drummond’s blood was on the shirt Alsup had been wearing that day, Brush said.
The attack came because, earlier in the evening, Drummond refused to give Alsup a cigarette, Brush said.
Assistant county public defender Michael Pentecost told the jury that Alsup merely found Drummond’s body after he was beaten by an unknown attacker. Alsup was curious after seeing a heavy rock on Drummond’s face and picked it up, Pentecost said.
Alsup then realized that his fingerprints could be on the rock, so he panicked and threw the rock in the river, Pentecost said.
Former stockbroker charged with passing bad check to former client
DAYTON — A former insurance agent and stockbroker who was ordered to repay former clients is now charged with passing a bad check to another client, the Ohio Department of Commerce announced Friday, July 10.
Thomas Fair, 66, of Centerville, was indicted July 2 on the charge, which is a fourth-degree felony and is punishable by up to 18 months in prison. According to the indictment, the check was for $5,000 or more.
The victim in the case is an 86-year-old veteran who formerly lived in Dayton, according to the commerce department, which investigated the case and referred it to the Montgomery County Prosecutor’s Office for charges.
Fair gave the check to the man to repay part of a $20,000 loan, commerce department spokesman Dennis Ginty said.
Fair was licensed as a securities dealer from 1986 to 1997. In 2008, the commerce department’s Division of Securities sought and obtained a permanent injunction in Montgomery County Common Pleas Court against Fair to stop him from selling securities. The injunction also required him to pay nearly $40,000 in restitution to two former clients, both women in their 90s, who had purchased unregistered securities from him.
Fair is scheduled to appear in Montgomery County Common Pleas Court on July 16.
Charlie Myers found competent to stand trial
DAYTON — A Montgomery County Common Pleas Judge ruled Wednesday, July 8, that Charlie Myers, accused of killing a Harrison Twp. woman and kidnapping her 4-year-old son, is competent to stand trial.
The ruling by Judge Dennis J. Langer came after two separate competency evaluations. Under Ohio law, a defendant is incompetent to stand trial if, because of his current mental condition, he cannot understand the court proceedings or assist in his defense.
Langer also set hearing dates from September 8 through 11 for the motions to suppress that Myers’ attorneys have filed.
Prosecutors are pursuing the death penalty against Myers. A Montgomery County grand jury indicted him Jan. 15 on eight counts of aggravated murder, including death penalty specifications. In total, The grand jury approved 20 felony counts against Myers in the death of Jenny Nelson, 29, and the kidnapping of her son on Jan. 2.
In addition to the aggravated murder counts, he was indicted on four counts of kidnapping, two counts of aggravated burglary, two counts of aggravated robbery, one count of gross sexual imposition of a child under the age of 13, one count of receiving stolen property, one count of grand theft of a motor vehicle and one count of being a felon in possession of a weapon. All charges include firearms specifications.
Myers, 22, of Columbus, remains in the Montgomery County Jail in lieu of $5 million bond. Myers is hearing-impaired, and Langer has ordered that a sign-language interpreter be present for Myers’ court dates and that Myers be fitted with new hearing aids.
Investigators said Myers, armed with a shotgun, drove on Jan. 2 from Columbus in the Nelson family’s 1999 Honda Accord — reported stolen from an Ohio State University parking garage on Dec. 17.
He had no prior relationship with Nelson’s family, according to Montgomery County Sheriff Phil Plummer, who called it a “random crime.”
The Nelsons had changed their locks the day after the car was stolen, according to prosecutors.
Myers allegedly kicked open the front door of the Nelson home on Redder Avenue, where Nelson was cooking dinner. Her husband was at work at the time. Myers allegedly took Nelson and her son down into the basement, where he tied Nelson to a chair. He then took the boy upstairs and sexually assaulted him, according to prosecutors.
Nelson broke free from her restraints, grabbed a knife and stabbed Myers in the side, prosecutors said. Myers then shot Nelson twice with his shotgun, according to prosecutors.
Myers fled in a car, owned by a Nelson relative, with the boy, two computers and Nelson’s cell phone, investigators said.
Myers left the boy that night at a highway rest stop near the Madison and Clark County county line. The boy, who had no shoes and wasn’t wearing a coat, told a woman there that a man had shot his mother, and deputies found Nelson dead in her home, according to prosecutors.
The Oldsmobile Alero, Myers stole after the shooting, was found Jan. 4 in Columbus, the same day Myers was arrested.
FBI agents tracked Nelson’s cell phone number and determined her cell phone was used twice in Columbus after her death, according to an affidavit for a search warrant filed in Franklin County Municipal Court. One of those calls, made the morning of Jan. 4, was made to Myers’ cell phone.
FBI agents and Franklin County sheriff’s detectives went to Myers’ apartment at 70 McMillen Ave. to determine who called him with the dead woman’s cell phone.
Former Ohio Attorney General fights for new trial for Gillispie
DAYTON — Attorneys for Roger Dean Gillispie, twice convicted of raping three women in August 1988, took his fight for a third trial to the Ohio 2nd District Court of Appeals on Tuesday, July 7.
Former Ohio Attorney General Jim Petro, representing Gillispie along with the Ohio Innocence Project, asked judges James Brogan, Mike Fain and Jeffrey E. Froelich to either grant Gillispie a new trial, or order Montgomery County Common Pleas Judge A.J. Wagner to hold a hearing concerning what the defense calls new evidence.
In July 2008, Wagner denied Gillispie’s request for a new trial, stating there was “no new admissible evidence” that would meet evidence rules requirements. Wagner ruled from attorneys’ briefs, declining to have a hearing on the issue.
Gillispie, 44, who is serving a 16- to 50-year sentence at the London Correctional Institution, has maintained his innocence. He was convicted of two counts of rape, two counts of gross sexual imposition, two counts of kidnapping and one count of aggravated robbery, according to the Ohio Department of Rehabilitation and Correction.
Montgomery County prosecutors and Miami Twp. Police Department investigators remain adamant that Gillispie is guilty. They point to the fact that all three victims identified Gillispie as their attacker, though defense attorneys say that those identifications, made nearly two years after the attacks, were tainted through police practices.
His convictions involve the abductions and sexual assaults against twin sisters from Sidney on Aug. 20, 1988 and of a Harrison Twp. woman on Aug. 5, 1988. All of crimes were investigated by the Miami Twp. Police Department.
His first trial ended with convictions in February 1991. He won a new trial after untested crime scene hairs were found at the Miami Valley Regional Crime Laboratory. Later in 1991, he was re-tried and convicted again.
The hairs were found to belong to the victims, Petro told the appeals court judges, who asked about the possibility of DNA testing.
“There’s really nothing left to test,” Petro said.
Petro argued that: — the prosecution violated discovery rules by failing to turn over supplemental police reports. — that 32 studies of eyewitness testimony, all done since Gillispie’s last trial, point to problems that relate to Gillispie’s case and would constitute new evidence. — That new information about an alternative suspect, developed by the defense, should also constitute new evidence.
Wagner rejected all of these arguments in his ruling last year.
Carley Ingram, chief of the Montgomery County Prosecutor’s Office appellate division, told the appeals court judges that none of this evidence was new, and that no discovery violations had occurred. The long case record, which includes several appeals and motions for a new trial, would show this, Ingram said.
“He’s been given all the due process he is due,” Ingram said. “He’s never been treated anything less than fairly.”
She also said that Gillispie’s attorneys were raising “old issues already litigated,” dealing with questions about the victims’ identifications and whether Gillispie resembled the victims’ physical descriptions of him. All of these issues had been dealt with during Gillispie’s trials.
Petro said he had sworn affidavits from two former Miami Twp. detectives, who said they had filed supplemental reports which said they did not believe Gillispie was the attacker. Ingram said prosecutors never saw those supplemental reports and that the defense has never proven they existed, or that they contain exculpatory information that would be admissible in court.
She also said that one of the former detectives joined the defense team before the first trial, so the team should have known then if something was missing from police records.
Ingram also said that studies of eyewitness testimony would not qualify as new evidence. That the defense team had identified the other man as a possible suspect before Gillispie’s new trial, so that would not be new evidence either, she said.
Petro compared the studies to new scientific developments in DNA testing. He also said that, years after the trial, the defense team had documented incriminating statements by the defense team’s suspect. Those statements to a former girlfriend uncannily matched statements the attacker made to the victims, Petro said.
“I would submit to you that everything is new,” Petro said.
$31 million verdict against hospital negated by settlement agreement
DAYTON — Last week’s $31 million verdict against Miami Valley Hospital could be the largest jury award for a medical malpractice case in Ohio history, though a settlement agreement makes it unlikely the hospital will have to pay that much.
As the jury was deliberating Thursday afternoon, July 2, after a four-week trial before Montgomery County Common Pleas Judge Timothy O’Connell, attorneys for the hospital and the family of Leondo Stanziano worked out a settlement agreement, plaintiffs’ attorneys Richard Lawrence and Patrick J. Beirne confirmed Monday, July 6.
“All disputes between the parties have been resolved,” Lawrence said.
Lawrence and Beirne said the verdict is the largest medical malpractice award they could find in Ohio. The last big medical malpractice case in Montgomery County resulted in an $8 million award last year, they said.
Lawrence and Beirne said the agreement is confidential and they could not discuss the details. They expect the case to be finished in the next 30 to 40 days, they said.
The agreement will end the case, eliminating any appeals or punitive damages, which were to be decided later, Lawrence said.
Beirne said that nearly $26 million of the jury’s award was for future medical care for the boy, now 8, who was born Dec. 11, 2000 at the hospital.
He suffered “permanent, irreversible brain damage,” during his birth, according to the complaint filed by his family in 2006.
The lawsuit also identified Dr. Kedrin E. Van Steenwyk and Contemporary Obstetrics and Gynecology as defendants, but the jury found that neither was liable for what happened to the boy.
The boy’s mother, Renetha, was a VBAC patient, meaning she would deliver the boy vaginally, though she had previously had a Caesarian section. That meant she was at a higher risk for a ruptured uterus during labor, which occurred, Lawrence said.
At that point, the mother’s body stopped providing oxygen through the placenta, though the boy was still inside her. He probably went 18 to 20 minutes without oxygen, Lawrence said.
The hospital staff, which knew Renetha Stanziano was a high-risk patient, erred by failing to monitor the labor properly, by failing to diagnosis the hyper-stimulation of her uterus, by inappropriately using the drug Pitocin and by not telling the attending physician of her “inappropriate contraction pattern,” according to the complaint.
The nurses continued to give her Pitocin, even as her contractions escalated to unsafe levels, and “they blew the uterus apart,” Lawrence said.
The boy, called “Leo,” has severe cerebral palsey. He uses a feeding tube. He cannot speak, is not ambulatory and has trouble holding anything in his hands,” Lawrence said. Though Leo is badly disabled, he is alert and can recognize family members. When he needs something, he communicates by kicking, Lawrence said.
Leo will never be able to work, and Renetha and her husband Douglas are now “24-7 health-care givers,” Lawrence said. After Leo’s birth, Renetha stopped attending college and quit her job at Wright-Patterson Air Force Base to take care of the boy, Lawrence said.
Hospital officials could not be reached for comment Monday. On Friday, President and Chief Executive Mary Boosalis said “Miami Valley Hospital is concerned for every patient under our care and we recognize the heartache of this tragic situation. We respectfully disagree with the jury’s decision and continue to support the work of our professional staff.”
Ohio Supreme Court dimisses defamation lawsuit against Dayton Daily News
COLUMBUS — The Ohio Supreme Court has dismissed the lawsuit of a former Dayton law department official who claimed that the Dayton Daily News defamed him and his wife in a series of 1998 articles.
In May 2008, Montgomery County Common Pleas Judge Michael L. Tucker dismissed the 1999 lawsuit filed by John and Cynthia Scaccia. The Ohio 2nd District Court of Appeals upheld Tucker’s ruling, so the Scaccia’s appealed to the Supreme Court.
On Wednesday, July 1, the high court declined jurisdiction and dismissed the case.
Tucker found that the Dayton Daily News didn’t defame the character of the Scaccias. At issue were articles that involved the couple’s acceptance of more than $500,000 in financial gifts from an elderly neighbor.
Tucker found that the newspaper demonstrated that the four news articles and one editorial in question were substantially true, and “truth, obviously, is an absolute defense to a defamation claim.”
The newspaper reported prosecutors’ assertion that the Scaccias exploited Charles Hoffman by accepting the gifts, but it also reported a probate court ruling that Hoffman was not exploited, Tucker noted.
“It may very well be the articles invoke an unflattering impression of Mr. and Mrs. Scaccia, but this impression is created by the circumstances of their relationship with Mr. Hoffman, not by any untrue or inaccurate reporting,” Tucker wrote.
Hoffman died Dec. 30, 2000.
John Scaccia was chief of the Dayton law department’s criminal division when the articles were published. He is now in private practice.
Marathon station shooter sentenced
DAYTON — Kyle McClendon, convicted of gunning down a stranger at a Harrison Twp. gas station, was sentenced to 27 and a half years to life in prison on Thursday, July 2.
“I don’t believe you have any remorse,” Montgomery County Common Pleas Judge Dennis J. Langer told McClendon. “You’re sorry for yourself.”
A jury decided June 12, that McClendon, 23, of Trotwood, was guilty of murder in the Feb. 8 shooting of David Driscoll. The jury also convicted McClendon of felonious assault and improper handling of a firearm in a motor vehicle.
McClendon and Driscoll met by chance Feb. 8 at a Marathon gas station, 4351 Riverside Drive. Prosecutors claimed Driscoll was executed in cold blood, while defense attorneys claimed Driscoll was the aggressor, a notion Langer repeatedly ridiculed.
“You were looking for trouble, not David,” Langer said. “You were the aggressor, not David.”
McClendon’s attorney Barbara Doseck read a statement from McClendon, stating that he was sorry for the shooting and that he hoped that Driscoll’s family would forgive him, but Langer cited the pre-sentencing investigation, in which McClendon continued to shift blame and introduced race as a factor. McClendon is black. Driscoll was white.
“Race had nothing to do with it,” Langer said. “It’s shifting responsibility to something that isn’t there.”
Prosecutors said Driscoll, a Sinclair Community College student, had been at a party with other Sinclair students at an apartment off Riverside Drive. About 3:30 a.m., Driscoll and two friends walked to the gas station to get cigarettes. As they walked through the parking lot, McClendon pulled into the lot, revving the car’s engine and driving toward them.
Driscoll and McClendon had a “brief verbal altercation” inside the store, then McClendon left and went back to his car, which was at a gas pump. Driscoll’s two friends went around behind the gas station to avoid trouble, but Driscoll walked out to the gas pump and exchanged words again with McClendon, prosecutors said.
That’s when the two shook hands and hugged. But as Driscoll was walking away, McClendon summoned Driscoll back, then shot him five times. McClendon left the scene in the car, and Driscoll died at the scene, prosecutors said.
Gretchen Driscoll, David’s mother, wept as she read aloud a victim impact statement, noting that her son, “kind and gentle,” was going to transfer to the University of Cincinnati to study aerospace engineering. David’s hair was long because he was growing it for Locks of Love.
She also said David had wanted to be an organ donor, but could not because of how he died.
“I live because I have to,” she said. “I no longer enjoy living. Kyle McClendon did not only kill my son. He killed me.”
Gretchen Driscoll also said that McClendon should have faced aggravated murder charges.
“Kyle should be facing the same sentence he gave my son,” she said.
Vicki Dumant, David’s aunt, also gave a statement to the court. She pointed to McClendon’s testimony that David Driscoll had tried to buy drugs from him, a claim that was reported in Dayton Daily News coverage of McClendon’s testimony.
“Help us purge the results of Kyle McClendon’s perjury,” Dumant said.
Langer did not specifically address that part of McClendon’s testimony, but said he had “repeatedly lied under oath,” and expected the jury to believe that nearly every witness in the case was lying except McClendon.
The sentence included not only the charges from the trial, but two counts from a previous case, in which Langer placed McClendon on intervention in lieu of conviction in and deferred the counts of carrying a concealed weapon and improper handling of a firearm in a vehicle.
Langer gave McClendon an additional 18 months for those charges after finding him guilty of those charges. He noted that McClendon was placed in intervention on Dec. 31 and told he could not, as a term of that supervised probation, possess a firearm.
“Thirty-nine days later, despite the order of the court, you had a gun,” Langer said. “You used that gun to kill a human being.”
Montgomery County Common Pleas Court’s General Division will eliminate positions to balance budget
DAYTON — The Montgomery County Common Pleas Court’s General Division, the latest part of government to face the county’s fiscal crisis, will be eliminating 10 to 12 positions during the next two months.
This could lead to layoffs, though the number will depend on how many people agree to voluntarily leave their jobs through the county’s voluntary separation plan, said Judge Michael T. Hall, the division’s administrative judge.
The division’s 208 employees were notified via email on Wednesday, July 1. The email said that county commissioners have asked the judges to reduce the division’s budget by an additional 2.5 percent, on top of the 6 percent reduction the division had already made.
The division’s budget is about $14 million, with about 86 percent reserved for personnel costs. The reduction would save about $240,000, Hall said.
“This has really been a difficult decision for the judges,” Hall said. “We also recognize that it’s a difficult job market out there.”
The court has four divisions: general, which handles most criminal and civil matters, plus juvenile, domestic relations and probate. Hall said the general division, by far the largest, would re-organize how it handles civil cases, but criminal cases would not be affected.
The division has 11 judges. The judges met Tuesday night and voted to approve the plan to cut costs, Hall said. He would not reveal the vote, but said that though it was not unanimous, there was a “clear, definite consensus.”
Hall also would not discuss how the other judges voted, though he said “I voted for it. But I felt that I had to.”
Employees will be notified which positions are abolished after July 15. It’s unclear how many layoffs will occur, as the division employees have until July 31 to enter the county’s voluntary separation plan, said Court Administrator Jim Drubert.
That plan, approved in June, offers a lump sum incentive for those employees who agree to leave county employment. The incentive payments will vary, as the lump sum will be calculated based on 25 percent of the employee’s first $50,000 of salary, then 5 percent of the remaining salary.
Even if 12 people decide to enter the plan, there could still be layoffs, if those whose positions are abolished do not have transferable skills for remaining jobs, Hall said.
The email notes that “this is no reflection on the work of any of the individuals that may be affected,” and adds that court staff is working with the Job Center and the Employee Assistance Program to help affected employees.
Hall said the cuts are necessary to balance the budget, but would not be easy for remaining staff.
“We’ve already cut to the bone,” Hall said. “Now, this is surgery.”
