Conviction upheld

By Lee Morrison, The Times-Reporter
Posted 4/15/2009

After a direct appeal was rejected by the Fifth District Court of Appeals, lawyers for Marsha Mills will take her murder conviction to the Ohio Supreme Court.

The 61-page rejection, with one technical reversal, was filed Wednesday with the Tuscarawas County Clerk of Courts, one of the most lengthy decisions in recent memory, according to courthouse observers. A three-judge panel of the appellate court heard the oral arguments in the case June 18.

“We’re very disappointed in this opinion,” said attorney Paula Brown of Columbus. “We do plan to appeal to the Ohio Supreme Court. We have always believed our client is innocent, and we will continue to fight for Marsha Mills.”

Mills, 58, of Dover was convicted and sentenced in June 2007 as a result of the investigation into the May 2006 death of Noah A. Shoup, 2, of New Philadelphia that occurred while Mills was baby-sitting him. A jury found her guilty of two counts of murder, felonious assault and child endangering, and she was sentenced to a life term in prison with parole eligibility after 15 years.

The prosecution maintains the boy died a violent death, while the defense maintains he died after falling down a short flight of outside steps onto concrete.

The appeals court rejected claims:

– Regarding testimony by Dr. George Sterbenz, a forensic pathologist employed by the Summit County Medical Examiner’s Office, who performed the autopsy on Shoup. The appeals court overruled claims regarding his being accepted as an expert witness and using a clay model of the steps to explain his conclusions.

– That county Common Pleas Court Judge Elizabeth Thomakos placed unwarranted restrictions on Mills’ witness, Dr. John Jerome Plunkett, an expert in child head injuries. Among them was preventing a videotape and photographs of a child falling from playground equipment. The appeals court ruled that he was able to explain how they contributed to his conclusions regarding Shoup’s injuries and death.

– That Thomakos erred by allowing prosecutors to show “irrelevant, gruesome, repetitive and substantially prejudicial photographs (of Shoup’s body after aggressive medical care and autopsy) in violation of Mills’ constitutional rights.” The appeals court said introduction of the evidence was at the discretion of the trial court and that Mills’ attorneys did not object at trial to the use of the 72 photos. Plunkett later used some of the photos to illustrate his points. The appeals court ruled that “An appellant can not assign as error the acceptance of a stipulation by the trial court after he has invited the claimed error.”

– That the guilty verdict “was not supported by sufficient evidence.” The appeals court stated, “Based upon the evidence presented, we do not find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

– That Mills is entitled to a new trial because the trial court failed to record all the proceedings, especially sidebar conversations, leaving them unavailable for review. The appeals court ruled that her attorneys “failed to affirmatively demonstrate any material prejudice which resulted from the unrecorded sidebars.”

– That Mills was deprived of effective counsel “due to numerous errors and omissions which prejudiced” her trial and that prosecutors prejudiced the outcome through improper closing arguments. Mills listed seven reasons for ineffective counsel, including that defense attorneys did not object to comments made by prosecutors in closing arguments. The appeals court stated, “The prosecutor did improperly express his personal belief as to the guilt of the accused, but based upon the context of the argument as a whole, we do not find the prosecutor’s comments to be prejudicial.”

The appeals court agreed that Thomakos erred by imposing multiple punishments for allied offenses contrary to the double jeopardy clause of the Ohio and United States constitutions. The appeals court remanded the case to Thomakos with instructions to merge some of Mills’ convictions into a single conviction “and impose a single sentence for these allied offenses. This decision in no way affects the guilty verdicts issued by the jury. It only affects the entry of conviction and sentence.”

Two more appeals are pending in the Mills’ case with arguments to be made during hearings scheduled April 30 before the Fifth District Court of Appeals.

The first is an appeal of Thomakos’ final judgment entry denying Mills’ request for post conviction relief and for an evidentiary hearing. Fourteen of the errors cited by attorney Brown pertain to alleged errors made by Mills’ trial attorneys and one to an alleged error on Thomakos’ part.

The second appeal relates to Thomakos’ judgment Sept. 11, 2008, denying Mills’ motion for reconsideration of the jury’s decision.