The Akron Legal News

Murder conviction stands for man who beat victim to death with a board

JESSICA SHAMBAUGH
Special to the Legal News
Published: April 3, 2014

The 10th District Court of Appeals recently affirmed a trial court’s decision denying a convicted murderer’s petition for post-conviction relief without a hearing.

Charles Dunkle filed a petition for post-conviction relief in the Franklin County Court of Common Pleas alleging that he was given ineffective assistance of counsel.

Upon review, the three-judge appellate panel found that Dunkle’s case stemmed from the death of Howard Hough on Jan. 10, 2007.

Dunkle and Ronnie McWhorter were indicted in the case and charged with aggravated murder.

At a jury trial in 2008, the state presented evidence that Hough and several other individuals, including McWhorter were involved in an altercation.

McWhorter and another man pushed Hough to the ground and beat him.

They eventually left Hough in an alley and returned to McWhorter’s residence where they met Dunkle.

McWhorter’s neighbor testified that the men told Dunkle about the incident and Dunkle responded by telling them, “We have got to go finish it.”

She stated that Dunkle and McWhorter then left the house for 20 to 30 minutes and when they returned Dunkle “told them he had ‘picked up the board and couldn’t stop hitting (Hough).’”

Medical evidence showed that Hough died as a result of blunt impact to the head that was consistent with being struck by a board.

After his arrest, Dunkle shared a cell with William Popich who testified that Dunkle boasted of beating a man with a four-by-four post.

The jury found Dunkle guilty of aggravated murder and sentenced him to 30 years to life imprisonment. His convictions and sentence were affirmed on direct appeal.

In March 2009, Dunkle filed a petition for post-conviction relief that stated his trial counsel was ineffective because it failed to raise the issue of a medical condition or call a potential exculpatory witness.

The common pleas court dismissed that petition without a hearing in December 2012.

Dunkle again raised those same issues on appeal.

Initially, he claimed his trial counsel should have introduced evidence that Dunkle had suffered severe seizures since his childhood and was not taking his medication at the time of Hough’s death.

He also claimed he had a severely injured wrist at that time and would not have been able to strike Hough with a board.

To support those claims, Dunkle included a “Novartis drug information pamphlet” and a Wikipedia article called “Status epilepticus.”

“While appellant attached a ‘Novartis’ drug information sheet, there was no evidence, medical or otherwise, that he had ever taken this medication. Similarly, appellant did not present any evidentiary materials to substantiate the allegation he was suffering from a wrist injury at the time of the events,” Judge Susan Brown wrote for the court.

The judges ruled that Dunkle failed to show his trial counsel knew about the alleged medical conditions at the time of trial and therefore he did not show that the counsel was ineffective for failing to present that evidence.

Dunkle next claimed that his counsel should have called McWhorter’s cellmate to testify.

He argued that the man, Jason Lozier, would have testified that McWhorter was high on cocaine and drunk at the time of Hough’s death and that McWhorter planned to “pin it on his co-defendant.”

The appellate panel reviewed the matter and found that an investigator spoke with Lozier prior to trial and stated that Lozier hoped to work with the prosecutor against Dunkle in exchange for leniency in his own case.

“Thus, in light of Lozier’s expressed reluctance to testify on behalf of appellant, trial counsel could have believed the inmate would not have provided favorable testimony for the defense. Here, the record supports the trial court’s finding that trial counsel’s decision not to call Lozier as a witness was within the realm of reasonable trial strategy,” Judge Brown continued.

Finding that the trial counsel acted properly, the appellate judges affirmed the lower court’s ruling denying Dunkle’s petition.

Presiding Judge Lisa Sadler and Judge Julia Dorrian concurred.

The case is cited State v. Dunkle, 2014-Ohio-1028.

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