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Ohio Supreme Court to hear local man’s death penalty appeal

Published: Sunday, December 03, 2017 @ 8:00 AM

The Ohio Supreme Court is to hear oral arguments in the death penalty plea of Austin Myers, 22, of Clayton.
The Ohio Supreme Court is to hear oral arguments in the death penalty plea of Austin Myers, 22, of Clayton.

UPDATE @ 9:31 a.m. (Dec. 5):

The hearing at the Ohio Supreme Court for Austin Myers, 22, of Clayton, has begun.  Myers stabbed Justin Back to death in Warren County in January 2014.

Myers was convicted for the murder and was sentenced to death. He appealed that decision.


On Tuesday, the Ohio Supreme Court is to preside over a legal debate over whether the death penalty should be executed on a young Clayton man - the second youngest on Ohio’s Death Row - for the murder of an even younger Warren County man at his home outside Waynesville in January 2014.

Warren County Prosecutor David Fornshell will personally argue for the state to continue forward toward the execution of Austin Myers, now 22, of Clayton, although another Clayton man, Timothy Mosley - like Myers 19 years old at the time - actually stabbed to death Justin Back, 18, a 2013 Waynesville High School graduate about to enter the U.S. Navy.

MORE: Waynesville High students mourn for graduate

“Austin Myers killed Justin. Tim was his weapon of choice,” Fornshell said last week, quoting Back’s stepfather, Mark Cates, a local prison guard.

It will be Fornshell’s first appearance before the high court on behalf of Warren County.

RELATED: Ohio House passes ‘Justin’s Law’ 

Lawyers appointed to appeal Myers’ death sentence have identified 18 violations of law they claim should convince the state’s high court to set aside his death sentence, including his age and the lesser sentence - life in prison without parole - Mosley received in exchange for his testimony.

Three years later, Myers is still the second youngest of 140 Ohio prisoners facing the death penalty. Damantae Graham, 20, convicted of killing a Kent State University student, is the only one younger.

Myers’ lawyers also claim errors or misconduct by the judge, prosecutors and defense lawyers in the case, decided more than three years ago in Warren County Common Pleas Court, should convince the high court, including appointed Judge Cynthia Westcott Rice of Ohio’s 11th District Court of Appeals, to spare his life.

RELATED: Local teen becomes Ohio’s youngest on death row

“Mr. Myers’s rights under the Constitution of the United States and the Ohio Constitution were violated and he was denied a fair trial and sentencing proceeding. Accordingly, this Court should reverse and discharge the defendant or grant a new trial. In the alternative, this Court should vacate the death sentence, remand for a resentencing hearing, and order the life sentence imposed,” lawyer Timothy McKenna said in his brief to the high court.

The appeal, pending since Oct. 27, 2014, was set for oral arguments on Oct. 20, after a second Ohio Death Row inmate was executed. These came after the postponement of scheduled executions starting in January 2014 following problems during the execution of Dennis McGuire, a Preble County man.

Rice was appointed to the high court on Nov. 6, replacing Justice Bill O’Neill, who recused himself after announcing he was running for governor.

The case

Myers and Mosley were arrested in July 2014 after Back’s mutilated body was found in Preble County, in a wooded area outside Versailles known as Crybaby Bridge. They both gave statements during interrogation at the Clayton Police Department used by investigators in reconstructing the crime, according to police and court records.

According to their statements, Mosely’s testimony and other evidence, after a day of preparation and planning, Myers and Mosley went to Back’s home in a small neighborhood along the Little Miami River, east of Waynesvile. With a garrote - fashioned by a friend who was not charged - Mosley came up behind Back and began choking him, while Myers restrained Back. When the garrote caught on Back’s chin, Mosley pulled out a knife and stabbed Back to death.

After cleaning the home and stealing Back’s iPod and wallet, as well as a gun and safe belonging to Cates, Mosley and Myers removed Back’s body, dumping it in Preble County after dousing it with chemicals to quicken decomposition. Before leaving the body, Myers shot it twice with Cates’ gun.

At trial, prosecutors convinced the jury that Myers was the mastermind of the crime and he was sentenced to die. Mosley, in exchange for his testimony, was sentenced in a plea bargain to life without parole.

RELATED: Plea agreement reached in death penalty case

The issues

Mosley was represented by Dennis Lieberman, a lawyer hired by Mosley’s family. Myers was represented by Greg Howard and John Kaspar, appointed by the court.

But Fornshell said Mosley got the deal because - unlike Myers- he offered to cooperate. Prosecutors needed one or the other to “put in the back story,” Fornshell said.

In addition, Fornshell said Mosley accepted responsibility and Myers was “exponentially more dangerous,” pointing to evidence indicating Myers handled the bulk of the planning and wanted to go back and kill Cates.

“He’s a serial killer who got caught the first time,” Fornshell added.“There is absolutely no doubt in my mind.”

McKenna and co-counsel Roger Kirk did not respond to requests for interviews.

But their 110-page brief indicates they will emphasize Myers “was a 19 year-old immature adolescent with behavioral issues” who should be spared the death penalty, in part because Mosley’s sentence spared his life, although he wielded the murder weapon.

RELATED: Supreme Court ruling won’t affect Myers’ case

In addition, they claim prosecutors rendered Myers’ lawyers “admittedly ineffective” by withholding evidence until “on the Friday eve before the Monday trial,”as well as the fact that Mosley was to be a witness.

The appeal

The appeal is to be the first of a series of cases heard on Tuesday and Wednesday.

All arguments are streamed live online at and broadcast live and archived on the Ohio Channel, according a release from the high court.

The court typically issues opinions within six months, but it was unclear when a decision would be issued in this case.

Suspect in 30-hour Liberty Twp. standoff demanded ‘thousands’ in cash from 10-year-old boy’s mother

Published: Tuesday, January 16, 2018 @ 10:29 AM

Liberty Twp. standoff suspect arraigned

A 30-hour standoff that involved a 10-year-old boy being held against his will at an apartment complex in Liberty Twp. began with the door being opened for the suspect.

Donald Tobias Gazaway, 31, was let into the apartment late Friday night by residents of the apartment in the 700 block of East Hamilton Place, according to Butler County Sheriff Richard Jones.

» READ MORE: 7 things to know about the 30-hour hostage standoff in Liberty Twp.

“This was not a home invasion, this was a ‘come on in,’” Jones told this news organization today.

Once inside, Gazaway demanded cash, according to what the boy’s mother told officials.

“He demanded thousands,” Jones said.

According to the mother, she did not have that kind of money.

“There was an argument and she said he pulled out a gun,” Jones said.

Jones said statements from the mother about how she knew Gazaway are conflicting.

» READ MORE: Man in 30-hour police standoff released from prison in July

“She said (she knew him a) couple weeks and that he was a friend of the family,” Jones said.

But there is evidence Gazaway had stayed at the residence before.

“He pulled the gun and it appeared it was every man and women for themselves, except the child,” Jones said.

Gazaway remained in the residence with the boy until a police vehicle drove up to the door. Then he took the boy and fled to a car in the garage, where he remained until surrendering Sunday morning.

During the standoff, Gazaway raised the garage door up and down and turned the car lights on and off.

“And occasionally he shot at us,” Sheriff said.

About 20 shots were reported fired during the incident.

Jones said the mother was at the scene during most of the incident, “in an area sleeping with a blanket over her.”

The sheriff’s office will be recommending Butler County Children Services open a case concerning the family.

The boy was returned to his mother and taken to the hospital to be checked out. He is reportedly doing well, according to Jones.

Immediately after securing the boy, he was taken to a safe place and kept warm by deputies, who provided a coat and doughnuts.

An official at the scene described the boy as wearing “Snoopy” pajamas during the ordeal and being very interested in the box of doughnuts they provided, eating them as fast as he could.

Gazaway just got out of prison in July after serving four years for felonious assault in Hamilton County. He shot a gun into a crowd of 30 people at a party, according to court documents

$1 million-plus bond set for standoff suspect

Published: Tuesday, January 16, 2018 @ 12:38 PM

            Donald Tobias Gazaway BUTLER COUNTY SHERIFF’S OFFICE

Bond was set at $1 million-plus today for a Cincinnati man charged in a 30-hour standoff involving a 10-year-old boy at a Liberty Twp apartment complex.

Donald Tobias Gazaway, 31, of Cedar Avenue in Cincinnati, was video arraigned in Butler County Area II Court on felony charges of felonious assault, kidnapping and a misdemeanor charge of inducing panic. Magistrate John McNally set bond at $500,000 on each of the felonies and $1,000 on the misdemeanor.

MORE: Standoff suspect demanded thousands from hostage boy’s mother

Gazaway’s preliminary hearing is scheduled for Wednesday in Area II Court in Hamilton.

During the arraignment that took less than five minutes. Gazaway said he understood what the magistrate told him. He was seated in front of a camera at the Butler County Jail.

When McNally asked Gazaway if he had the funds to hire an attorney, he answered “not at the moment, but I can try to gather up some.”

He was told an attorney would be appointed for him if he could not afford one.

Frozen and abandoned dogs have saddened the community. Here’s how dog wardens try to protect them.

Published: Tuesday, January 16, 2018 @ 7:52 AM

The Dog Warden has been responding to calls about animals out in the cold weather.

Subzero temperatures since Christmas kept the five officers in the Butler County Dog Warden’s office traveling from call to call trying to keep animals safe.

“I would say since Christmas, between the five of us, we have done around 100 calls for welfare checks,” said Kurt Merbs, county dog warden supervisor.

Even with their best efforts, not all dogs were saved.

MORE: Owners to be charged after dog found frozen to death in Butler County

A Butler County woman is facing several felony charges after three of her dogs were found Jan. 7 dead due to neglect in the cold weather.

Merbs said a welfare check on seven dogs on the property of St. Clair Twp. resident, Melissa Damico, 3700 Morganthaler Rd., was conducted after the property called and three dogs were found deceased due to neglect and cold weather, while four other dogs were found alive but severely malnourished.

MORE: Ohio couple charged with animal cruelty after pit bull dies

Two of four surviving dogs taken from the Melissa Damico residence in St. Clair Twp. earlier this week. The pups are recovering a Animal Friends Humane Society. Three dogs were found deceased by the county dog warden’s office. Damico is facing multiple counts of abuse to companion animals. LAUREN PACK/STAFF(Staff Writer)

Damico had moved to a new home, abandoning the seven dogs. There was no food, water, or appropriate shelter from the weather.

Damico was taken to the Butler County Jail and charged with three felony charges of cruelty to companion animals and four misdemeanor counts of the same charge and will appear in Hamilton Municipal Court.

On Wednesday, the surviving dogs, Chihuahua mixed breeds, were doing well recovering at the Animal Friends Humane Society.

The dogs were gaining weight and will soon be ready for adoption after spay and neutering.

“It is amazing what food and water will do,” Merbs said looking down at the friendly, energetic pups.

Earlier this month, misdemeanor charges were filed against two St. Clair Twp. residents after their German Shepherd was found frozen to death in the back yard. And it was not first frozen dog found during the cold snap.

“We had at puppy found frozen (previously) in Middletown. It was in a carrier by a Dumpster,” said Kurt Merbs, Butler County Dog Warden Supervisor. “But chances of getting leads on that are slim.”

The male German shepherd was found frozen in its plastic dog house at the Henry and Saundra Ensor residence. Humane Officers were called the Morganthaler Road residence Jan 2 and found the dog in the plastic house with very little straw and his head down in the snow.

The dog was also chained to a tree, and there was another wooden house in the yard that was barely reachable by the dog.

Two of four surviving dogs taken from the Melissa Damico residence in St. Clair Twp. earlier this week. The pups are recovering a Animal Friends Humane Society. Three dogs were found deceased by the county dog warden’s office. Damico is facing multiple counts of abuse to companion animals. LAUREN PACK/STAFF(Staff Writer)

The Ensors are scheduled to appear in Hamilton Municipal Court later this month

“When you confine a dog, you are all it has. They cannot get away to find food or shelter. That is where it is the owner’s responsibility,” Merbs said.

When temperatures dip to dangerous levels for people, they are also too cold for pets, Merbs said, and adequate shelter is a must.

“We are encouraging at all costs to bring them inside, especially over night,” Merbs said. “If they have to be outside, the best thing is more straw, maybe put up some sort of wind block, something over the door or tarp to help block the wind. But it is best to bring them in or make some sort of arrangements for them inside.”

The warden’s offices passes out straw free of charge to pet owners that need it and when they are running low the community responds with donations.

“A few days ago, Joseph’s Legacy rescue donated about 20 t0 25 bales of straw, so our trailer’s packed full again, but it won’t last long, we are out giving bags away daily,” Merbs said.

While this winter is shaping up to be a busy one for the humane officers, Merbs said warm weather periods are also challenging times.

“Strictly talking welfare checks, I would say we are busier in the winter time. As a whole though we are swamped in the summer including dog bites and dogs running loose agitated from the heat,” Merb said.

Residents can report pets left in the cold to the Butler County Sheriff’s Dog Warden at 513-785-1300 or by texting “COPS” to 274637.

Man in 30-hour police standoff released from prison in July

Published: Sunday, January 14, 2018 @ 12:13 PM

Standoff involving 10-year-old hostage in Butler Co. continues

A heated late Friday night incident that boiled over into a nearly 30-hour standoff with SWAT ended early Sunday with the arrest of a man who held a 10-year-old boy hostage at an apartment complex in Liberty Twp..

That suspect, Donald Tobias Gazaway, 31, surrendered at 6:36 a.m. Sunday morning in the 7000 block of East Hamilton Place in Liberty Twp., according to Butler County Sheriff Richard K. Jones. Gazaway is booked into the Butler County Jail on charges of kidnapping, felonious assault and inducing panic.

The 10-year-old hostage was safe following the standoff, which Jones said would not have ended as well without the assistance of West Chester and Hamilton police departments and the Liberty Twp. Fire Department.

Donald Tobias Gazaway(Staff Writer)

“We’re very fortunate that when these departments were there, that the guy came out and he gave up,” Jones said. “We didn’t think at times we were going to get a good resolve from this. We felt that he wanted us to shoot him at different times, but we could not do anything, we couldn’t breach, we couldn’t come in because … any movement that he made was always with that child.”

“We could hear the child inside, he was crying, he was wanting to get out.”


The incident started at 11:27 p.m. Friday when the boy’s mother called police saying a man was in her apartment at the Springs at Liberty Twp. with a gun and demanding money, Jones said.

Neighbors told this media outlet that the boy’s mother ran from townhouse to townhouse, banging on doors and seeking safety. The woman was crying, barefooted and with pajamas only, one neighbor described. The woman’s blood was still visible on at least two of those doors on Sunday.

Police made cellphone contact with Gazaway at 11:38 p.m. and shots were reported fired inside the apartment at 11:51 p.m., leading police to evacuate surrounding apartments in the complex.

A view of the standoff at Springs at Liberty Township apartments as of 1:50 p.m. on Saturday, Jan. 13, 2018. WAYNE BAKER / STAFF

Shots were again fired from inside the apartment between 4 and 6 a.m. Saturday with Gazaway using the boy as a shield, according to police. Officers breached the front door around 6 a.m. to communicate with Gazaway and shots were fired at a police robot around 7:47 a.m.

At 9 a.m., police made visual confirmation that Gazaway was using the child as a shield with a gun to his neck and at 11 a.m. he took the boy to the apartment’s garage and got in a car, where he fired shots at 12:52 p.m., Jones said.

Negotiations continued from 1 p.m. Saturday through the night until Gazaway surrendered without incident.

MORE: 37 people indicted in Butler and Warren counties

Jones said the boy’s mother knew Gazaway “a couple of weeks” and was a friend of the family.

He said he could not yet disclose the type of firearm that was fired at police or the extent of damage it caused to police equipment. Jones said more than two dozens shots were fired by the suspect in the incident. Police did not fire a shot, Jones added.

This isn’t Gazaway’s first run-in with the law. State records show he served more than four years in prison for felonious assault and a gun specification out of Hamilton County, and was released from prison in July and remained under the supervision of Ohio’s Adult Parole Authority, according to our news partner, WCPO-TV.

The suspect using a child as a human shield “definitely changes the dynamics of the standoff,” said Hamilton Police Chief Craig Bucheit.

“Having a hostage, especially a hostage of this age and a child, I can tell you that I know that probably without exception every officer, every operator that was out there is a parent and a lot of those operators have their own children at home about this age,” Bucheit said. “Everybody knew just what was at stake, how important this was, and I think this really helped keep these folks going through some very difficult, long hours, very difficult conditions.”

Bucheit credits negotiators for doing “an outstanding job” of talking to Gazaway, keeping him calm and building a rapport with him, even as he fluctuated between wanting to let the boy go and standing his ground against police.

“Over enough time, I think that finally wore him down and he was out of options,” Bucheit said. “He was in the car, the car was running, it was getting low on gas … (temperatures) are in the single digits … and eventually he just wore down and gave up.”

West Chester Police Chief Joel Herzog said the standoff was one of the most difficult and challenging that he had been involved with and even been aware of in his 27 years in law enforcement.

He said it was “very valuable” that the various departments all were on the same radio system because it allowed for “seamless” communication between the three law enforcement agencies.

RELATED: Mason teacher who made ‘lynch’ comment to black student on administrative leave

The boy was sent to a hospital for observation. His mother told WCPO she was “happy that this turned out right.”

“He’s a brave little boy,” she said. “All he wanted to do at the end of the day was protect mommy. I think he was more concerned about me being safe versus him being stuck with the bad guy.”

The suspect was like family, the mother of the boy told WCPO, but he acted strangely and aggressively before the standoff.

“Mommy won’t be dating for a while or bringing any guys around my son,” she said.