Fourth District Court of Appeals confirms prior judgment in Highland County murder case

Following a second appeal attempt by a New Vienna man found guilty of murder and rape after a jury trial in Highland County in 2019, the Fourth District Court of Appeals has affirmed the judgment in his direct appeal.

As previously reported, a jury convicted James Carver Aug. 8, 2019 of murder, rape, having weapons under disability, assault and tampering with evidence, following a trial in Highland County Common Pleas Court that was held on parts of four days.

Carver was sentenced to a total of 33 years to life in prison, including 15 years to life for the murder charge and a mandatory three years for a firearm specification; 10 years for rape; and 30 months each for the weapons under disability and tampering with evidence charges.

The victim in the case was a 33-year-old Wilmington woman, who was pronounced dead at Adena Greenfield Medical Center during the early morning hours of Tuesday, Feb. 19, 2019. After Carver’s conviction, Judge Rocky Coss said, “I’ve been involved in a lot of murder cases and homicides in 43 years as a prosecutor and judge. I think this woman suffered more than any victim I’ve seen that died.”

The Court of Appeals issued a 50-page decision in October 2020 upholding Carver’s conviction, determining there was “no merit to Carver’s arguments” regarding the “sufficiency of the evidence” in the case.

According to the new judgment entry dated Aug. 7 and posted Aug. 15, the Court of Appeals “granted in part” a motion for Carver to “reopen his appeal based on ineffective assistance of appellate counsel.” However, the reopened appeal, filed by attorney Steven Eckstein, argued that “the trial court erred … by giving erroneous, conflicting and misleading jury instructions concerning the required mental state for the offense of murder.”

“In Carver’s reopened appeal, while he has addressed the issue of the erroneous jury instructions in his brief, he has failed to further address the alleged ineffective assistance of appellate counsel claim,” Fourth District Court of Appeals Presiding Judge Jason P. Smith wrote.

According to the judgment entry, the appellate court relied on a “recent decision of the Ninth District Court of Appeals in State v. Calhoun” to determine “whether Carver’s omission is fatal to consideration of his reopened appeal.” In that decision, the Ninth District determined “that when an appellant fails to address ineffective assistance of appellate counsel in a brief filed in a reopened appeal, the prior judgment must be confirmed.”

Smith noted that in the application to reopen Carver’s appeal, the appellate court had stated their “review shall be limited to considering the matter of the erroneous jury instructions given as to Count One, murder.”

“We are persuaded by the reasoning set forth in Calhoun, and we conclude that pursuant to the appellate rules, Carver’s appeal must be dismissed for failure to address the ineffective assistance of appellate counsel claim,” Smith said. “Therefore, the judgment in direct appeal must be confirmed.”

That said, Smith added, “Even if we were to consider Carver’s sole assignment of error [regarding jury instructions], we would find it to be wholly without merit.”
 
According to the appellate court decision, there was an error in the jury instructions that used the word “knowingly” instead of “purposely” for the murder count. However, Smith pointed out that Carver’s attorney “failed to object to the error” during the trial.

“Therefore, we must determine whether the jury instructions were confusing or misleading so as to have materially affected Carver’s substantial rights to a fair trial,” Smith wrote. “We can only reverse Carver’s conviction based on the trial court’s error if the result clearly would have been otherwise had the proper instruction been given.”

Smith cited decisions in three other appellate cases — State v. Baltzer, State v. Remillard and State v. Lewis — regarding errors in issuing jury instructions.

For the Baltzer case, the Fourth District ruled that they “cannot say with any sense of confidence that the erroneous and conflicting jury instruction did not affect the outcome of the trial,” and they “found possible merit” to Carver’s “similar argument” with his initial application. Smith said they have since determined “the error in Baltzer may be distinguished from the trial court’s error here.”

The Fifth District “was not convinced that the inclusion of the incorrect reference to physical harm was so misleading and prejudicial as to result in an erroneous verdict” in the Remillard case, Smith said, and “declined to second-guess the strategic decision Remillard’s counsel made.”

“As in Remillard, trial counsel’s decision not to object to the erroneous instruction may be viewed as reasonable trial strategy,” Smith wrote. “Carver’s defense was entirely based on the premise that [the victim’s] shooting was accidental and Carver’s conduct was reckless ― without any specific intent to harm her. Had trial counsel called attention to the error and insisted that the mental state be corrected to ‘purposely,’ it may have been construed by the jury as a concession rather than a correction.”
 
The Lewis case in the Eighth District had a similar issue with “purposely” and knowingly” in its instructions, but the appellate court found that Lewis’s assigned error on appeal “had no merit,” Smith wrote.

“Based on our review of the evidence received at Carver’s trial, we also find that despite the erroneous instruction, the jury could not have been misled,” Smith wrote in the Fourth District’s decision. “While the concepts of ‘knowing’ and ‘purposeful’ mental states would be confusing in certain contexts, they are both concepts which identify specific intent crimes. In the context of Carver’s trial, the arguments made by both the prosecutor and the defense attorney in their summations of the evidence drew a stark contrast between intentional conduct and reckless conduct.

“Here, the overwhelming evidence presented at trial suggested Carver’s conduct was intentional and purposeful, not reckless.”

Smith said that while the state “argued that Carver’s conduct was purposeful,” his defense “argued that Carver’s conduct was a lower mental state that does not involve specific intent ― ‘reckless.’” The jury was instructed to consider the offense of reckless homicide if they were hung on the count of murder or if they found Carver not guilty of murder.

“In view of the facts of Carver’s case, the concepts of ‘knowledge’ and ‘purpose’ ‘coalesce in such a fashion’ that the jury could not have been misled, especially when the jury was also instructed in a contrasting mental state, ‘recklessness,’” Smith wrote.

Citing two other cases, Smith said, “As in Pettit, had the trial court instructed correctly in the two instances discussed, we cannot say that the jury result would clearly have been different. And as in Lewis, given the mountain of evidence unfavorable to Carver, we cannot find that the jury lost its way.”

As a result, the Fourth District “cannot find plain error” and does “not find the trial court’s erroneous jury instructions materially affected Carver’s substantial rights,” Smith ruled.

“Had Carver properly argued an ineffective assistance of appellate counsel claim, our determination on reopened appeal would not end here,” Smith continued. “We would be required to consider whether the failure to raise the erroneous instruction constituted ineffective assistance.

“In order to fully resolve this matter as we have undertaken in the interests of justice, we do not find that appellate counsel’s failure to argue the erroneous jury instructions would have constituted ineffective assistance of appellate counsel.”
 
Smith said that the defense attorney’s failure to correct the “purposely” vs. “knowingly” definition “may have been a strategic decision” and “did not constitute error.

“It would have been futile for appellate counsel to have raised an assignment of error regarding the erroneous jury instructions,” Smith wrote. “A trial attorney does not violate any substantial duty in failing to raise futile arguments. Therefore, we further find that appellate counsel did not render ineffective assistance by failing to raise an assignment of error concerning the erroneous jury instructions which would have had no reasonable probability of success.

“Had Carver properly argued the ineffective assistance issue as required by App.R. 26(B) (9), we would have found it to be without merit. For this reason as well, we would confirm the judgment in the direct appeal.”

According to the Ohio Department of Rehabilitation and Correction, Carver, 44, is incarcerated in the Allen Correctional Institution. His first parole review is scheduled for December 2051, the ODRC site says.