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State v. Davis9/12/2003
Rendered on the 12th day of September, 2003.
. After a jury trial, Defendant-Appellant Charles Davis was convicted of tampering with evidence (Count IV), having weapons under disability (Count V), and two counts of involuntary manslaughter, both with a firearm specification (Counts III and VIII). The jury found Davis not guilty of two counts of murder (Counts I and II), and the court granted a Crim. R. 29 motion for acquittal on charges of receiving stolen property and trafficking in drugs (Counts VI and VII, respectively). Davis was subsequently sentenced to the following terms of imprisonment: five years on Count III; five years on Count IV; 11 months on Count V; ten years on Count VIII, and three years on each firearm specification. Counts III and V were merged with Count VIII, and the sentences for the firearm specification were combined and made consecutive to, and prior to, the other sentences. Since the court also ordered the sentence for Count IV to be served consecutive to the sentence for Count VIII, the total aggregate sentence of imprisonment was 18 years.
. Davis now appeals, raising the following assignments of error:
. "I. The Appellant was denied his right to a speedy trial when the court overruled the Appellant's Motion to Dismiss Count VIII of the indictment.
. "II. The trial court erred and abused its discretion in reconvening the jury to return a second verdict on Count Eight of the indictment after the jury's initial verdict on that count had been accepted and the jury had been discharged.
. "III. Because the record demonstrates that there was improper contact with the jury during deliberations, the Defendant was denied a fair trial and his convictions must be reversed.
. "IV. Because the Appellant was never accused of the offense of involuntary manslaughter for causing the death of Randall Powers as the proximate result of committing the offense of reckless assault, Appellant was denied his right to a fair trial and to due process of law. Accordingly, the Defendant's conviction on Count III of the indictment must be reversed.
. "V. The State's repeated attempts to introduce evidence of other acts of the Defendant's bad character through improper questions, objections to which were only occasionally sustained, denied Appellant a fair trial.
. "VI. Appellant's conviction on Count VIII is supported by insufficient evidence.
. "VII. The trial court erred and abused its discretion in sentencing the Defendant to maximum consecutive sentences."
. Upon consideration, we find that the second assignment of error should be sustained and that the seventh assignment of error should be sustained in part. The remaining assignments of error are either moot or without merit. Accordingly, the conviction and sentence on Count VIII will be vacated, and the imposition of a consecutive sentence on Count IV is also vacated. This matter will be remanded for re-sentencing consistent with this opinion.
I.
. The charges against Davis arose from the events of September 16 and 17, 2001, which ended in the death of Randall Powers from a gunshot wound to the chest. Davis admitted shooting Powers, but claimed it was an accident. The State's theory of the case was that Davis intentionally shot Powers because of a dispute over money, use of a garage, or an assault rifle.
. At the time of the shooting, Powers and Davis had been friends for about nine years. About three or four years before his death, Powers spent several weeks at Greene Memorial Hospital for drug rehabilitation. At that time, Powers had custody of his two sons,
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