State v. Merritt

Ohio Court of Appeals August 18, 2021

State v. Merritt, 2021 Ohio 2847 (2021)

Hoffman

Opinion

[Cite as State v. Merritt,

2021-Ohio-2847

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2020 CA 0063 HUNTER MERRITT

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2020 CR 0220

JUDGMENT: Affirmed in part; Reversed in part; Remanded for resentencing

DATE OF JUDGMENT ENTRY: August 18, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP DARIN AVERY Prosecuting Attorney 105 Sturges Avenue Richland County, Ohio Mansfield, Ohio 44903

JOSEPH C. SNYDER Assistant Prosecuting Attorney 38 South Park Street, #2 Mansfield, Ohio 44902 Richland County, Case No. 2020 CA 0063 2

Hoffman, J. {¶1} Defendant-appellant Hunter Merritt appeals the judgment entered by the

Richland County Common Pleas Court convicting him of five counts of having weapons

while under disability (R.C. 2923.13(A)(2),(B)), three counts of domestic violence (R.C.

2919.25(A),(C),(D)(2)) and one count of aggravated menacing (R.C. 2903.21(A),(B)) and

sentencing him to an aggregate term of incarceration of fifteen years. Plaintiff-appellee

is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant and A.M. entered into a relationship in 2019. Appellant went to

prison shortly after they began dating, but A.M. stayed with him while he was in prison.

Appellant moved in with A.M. after he was released from prison in October of 2019. After

they began living together, the couple fought daily. Appellant entered into a relationship

with another woman, C.C. A.M. was aware Appellant was not supposed to have a firearm,

but knew he had several. On December 5, 2019, she photographed Appellant with a

handgun.

{¶3} On December 9, 2019, Appellant went to A.M.’s apartment. He believed

A.M. was cheating on him with his best friend. A.M. was sleeping in her bedroom.

Appellant entered the room and fired a gun into the bed, through the mattress, and into

the floor. Appellant told A.M. he was going to kill her, and she had to get into his truck.

He dragged A.M. to the truck, telling her they were first going to see the man who he

believed A.M. was seeing. Appellant told A.M. he was then going to take her out into the

country to make her dig a hole for herself so he could kill her. When Appellant pulled into

a church parking lot, A.M. jumped out of the truck and ran to a nearby house. The woman

inside the home called the Richland County Sheriff’s office. Richland County, Case No. 2020 CA 0063 3

{¶4} Appellant began dating C.C. in November of 2019. He moved into C.C.’s

house a few days later. The relationship was tumultuous from the beginning. According

to C.C., Appellant would pistol whip her, beat her up, and shoot at her inside the house.

C.C. took her kids to live with her mother while she was with Appellant. Appellant believed

C.C. was cheating on him. He tracked her phone when she was not home and accused

of her of doing things he did not like. C.C. received multiple black eyes, busted lips, and

defensive bruises on her arms from Appellant. There were bullet holes throughout her

home from Appellant shooting at her. Appellant took C.C. into the woods to dig a hole for

herself. He put a gun to her head and told her he was going to kill her.

{¶5} During January, February, and early March of 2020, C.C.’s neighbor heard

shots coming from the house. In early February, C.C. showed up at the neighbor’s door

with one of her children, stating Appellant had become violent and had taken her phone

so she could not call for a ride. The neighbor allowed her to use his phone to call for a

ride. C.C. walked to her grandfather’s house, where she was picked up by her mother.

C.C.’s stepfather, Mark Solon, went to C.C.’s house to lock it up, because C.C. told him

Appellant was leaving the house. While Solon was in his vehicle, Appellant came out

with what appeared to be a gun in the waistband of his pants.

{¶6} At 6:30 a.m. on March 9, 2020, a 13-year-old neighbor was walking to the

bus stop. She heard yelling, and saw a man with a gun yelling at her dog, using the gun

to “shoo” the dog away. Following this incident, the Richland County Sheriff’s

Department became aware Appellant was prohibited from possessing firearms based on

his prior convictions, and obtained a search warrant. Upon searching the home on March Richland County, Case No. 2020 CA 0063 4

12, 2020, two loaded firearms were found in the bedroom under the mattress. Bullet

holes were found throughout the home.

{¶7} Appellant was indicted by the Richland County Grand Jury with five counts

of having a weapon under disability, four counts of domestic violence, and one count of

aggravated menacing. The case proceeded to jury trial in the Richland County Common

Pleas Court.

{¶8} Appellant was convicted of all counts with the exception of Count Two of

domestic violence. The trial court sentenced him to three years incarceration on each

count of having a weapon under disability, to be served consecutively. The trial court

sentenced him to 30 days in jail for two counts of domestic violence, 180 days in jail for

the remaining count of domestic violence, and 180 days in jail for aggravated menacing,

to be served concurrently. It is from the September 2, 2020 judgment of the trial court

Appellant prosecutes his appeal, assigning as error:

I. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL.

II. THE TRIAL COURT ERRED IN DENYING MERRITT’S R. 29

MOTION FOR ACQUITTAL WITH RESPECT TO COUNTS FIVE AND

EIGHT.

III. THE TRIAL COURT ERRED BY PREVENTING THE

ADMISSION OF ADMISSIBLE EVIDENCE THAT COULD HAVE

UNDERMINED THE CREDIBILITY OF A WITNESS WHOSE TESTIMONY

WAS NECESSARY TO ESTABLISH COUNTS 1-4. Richland County, Case No. 2020 CA 0063 5

IV. THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO

CONVICT THE DEFENDANT OF ANY CRIME, AS IT APPEARS NO

WITNESS RELIABLY IDENTIFIED HIM.

V. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO

AMEND THE DATES OF COUNTS 1 AND 5 DURING TRIAL.

VI. THE TRIAL COURT ERRED BY FAILING TO MERGE SEVERAL

OF THE COUNTS FOR SENTENCING.

{¶9} In his first assignment of error, Appellant argues trial counsel was ineffective

for failing to move to dismiss the charges for violation of his right to a speedy trial under

R.C. 2945.73, failing to file a motion to suppress, and failing to move for a mistrial or a

continuance of the trial when the State twice amended the dates set forth in the indictment

to conform to the evidence presented at trial.

{¶10} A properly licensed attorney is presumed competent. State v. Hamblin,

37 Ohio St.3d 153

524 N.E.2d 476

(1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington,

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

(1984); State v. Bradley,

42 Ohio St.3d 136

538 N.E.2d 373

(1989). In other words, Appellant must show counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as having

produced a just result.

Id.

Richland County, Case No. 2020 CA 0063 6

{¶11} Appellant first argues counsel was ineffective by failing to file a motion to

dismiss for violation of his speedy trial rights as set forth in R.C. 2945.73. He argues he

was incarcerated from March 12, 2020, through his trial date of August 25, 2020, and the

trial court failed to initially set a trial date inside of 90 days, but instead set an initial trial

date of June 30.

{¶12} Am. Sub. H.B. No. 197, enacted in response to the Covid-19 pandemic,

provided in pertinent part as follows:

(A) The following that are set to expire between March 9, 2020, and

July 30, 2020, shall be tolled:

(3) The time within which an accused person must be brought to trial

or, in the case of a felony, to a preliminary hearing and trial:

(10) Any other criminal, civil, or administrative time limitation or

deadline under the Revised Code.

(B) This section applies retroactively to the date of the emergency

declared by Executive Order 2020-01D, issued on March 9, 2020.

emergency ends or July 30, 2020, whichever is sooner.

{¶13} The parties agree Appellant was arrested on March 12, 2020 and held in

prison; therefore, the date on which he must be brought to trial pursuant to R.C. 2945.71

was June 10, 2020. However, pursuant to House Bill 197, because the time within which

Appellant must be brought to trial expired between the dates of March 9, 2020, and July Richland County, Case No. 2020 CA 0063 7

30, 2020, the time was tolled until July 30, 2020. Therefore, time did not begin to run on

Appellant’s speedy trial claim until July 30, 2020. Because Appellant was brought to trial

on August 25, 2020, well within ninety days from July 30, 2020, there was no violation of

Appellant’s speedy trial rights, and we find counsel was not ineffective for failing to file a

motion to dismiss.

{¶14} Appellant next argues counsel was ineffective for failing to file a motion to

suppress evidence seized from Appellant’s home pursuant to a search warrant on March

12, 2020.

{¶15} Trial counsel's failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal,

87 Ohio St.3d 378, 389

721 N.E.2d 52

(2000). Counsel can only be found ineffective for failing to file a motion to suppress

if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist.

No. 07 CA 130,

2008-Ohio-3119

2008 WL 2571700

, at ¶ 47; State v. Cheatam, 5th Dist.

No. 06-CA-88,

2007-Ohio-3009

2007 WL 1731619

, at ¶ 86.

{¶16} Appellant concedes neither the warrant nor the affidavit used by police to

secure the warrant is a part of the record before this Court on appeal. However, he argues

based on Chimel v. California,

395 U.S. 752

89 S.Ct. 2034

23 L.Ed. 2d 685

(1969), the

search of his home was unreasonable because Officer Berry could have arrested

Appellant on March 9 pursuant to an arrest warrant out of another agency, rather than

waiting until he executed a search warrant on March 12.

{¶17} The facts of Chimel are distinguishable from the instant case. In Chimel,

the United States Supreme Court held a warrantless search of the defendant's entire

house, incident to the defendant's proper arrest inside the house pursuant to a warrant Richland County, Case No. 2020 CA 0063 8

on a burglary charge, was unreasonable because the search extended beyond the

defendant's person and the area from which he might have obtained either a weapon or

something which could have been used as evidence against him.

Id. at 768

. Unlike

Chimel which involved a warrantless search of the home, in the instant case, officers

possessed a search warrant for Appellant’s home. We find counsel was not ineffective

for failing to file a motion to suppress because the record does not demonstrate a

reasonable probability had counsel filed a motion to suppress, it would have been

granted.

{¶18} Appellant also argues counsel was ineffective for failing to move for a

continuance or a mistrial after the trial court allowed the State to amend the dates set

forth in the indictment for Counts 1-5 to conform to the evidence presented at trial. Crim.

R. 7(D) provides:

The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any

defect, imperfection, or omission in form or substance, or of any variance

with the evidence, provided no change is made in the name or identity of

the crime charged. If any amendment is made to the substance of the

indictment, information, or complaint, or to cure a variance between the

indictment, information, or complaint and the proof, the defendant is entitled

to a discharge of the jury on the defendant's motion, if a jury has been

impaneled, and to a reasonable continuance, unless it clearly appears from

the whole proceedings that the defendant has not been misled or prejudiced Richland County, Case No. 2020 CA 0063 9

by the defect or variance in respect to which the amendment is made, or

that the defendant's rights will be fully protected by proceeding with the trial,

or by a postponement thereof to a later day with the same or another jury.

Where a jury is discharged under this division, jeopardy shall not attach to

the offense charged in the amended indictment, information, or complaint.

No action of the court in refusing a continuance or postponement under this

division is reviewable except after motion to grant a new trial therefor is

refused by the trial court, and no appeal based upon such action of the court

shall be sustained nor reversal had unless, from consideration of the whole

proceedings, the reviewing court finds that a failure of justice resulted.

{¶19} The indictment for counts one through four specified a date range of “on or

about December 9, 2019.” After photographs of Appellant with a handgun in his

possession were presented through the testimony of A.M., the prosecutor sought

amendment of the dates in the indictment to include a date range of December 5, 2019,

to December 9, 2019. Tr. 208. Although counsel objected to the amendment, counsel

did not request a mistrial or a continuance. Counsel conceded he had received the

photographs in discovery, and the photograph in question facially displayed a date of

December 5, 2019; therefore, counsel was not surprised by the date. Further, we find a

date of December 5 is not materially different from a date range of “on or about” December

9, and Appellant has not demonstrated had counsel requested a mistrial or a continuance,

the request would have been granted. Richland County, Case No. 2020 CA 0063 10

{¶20} As to the amendment of the date range for count 5, we find Appellant’s claim

is moot based on our ruling the evidence was insufficient to support a conviction pursuant

to Appellant’s second assignment of error.

{¶21} The first assignment of error is overruled.

II.

{¶22} In his second assignment of error, Appellant argues the State did not

present sufficient evidence on counts five and eight of having a weapon under disability,

and the trial court therefore erred in overruling his Crim. R. 29 motions for directed verdict

of acquittal.

{¶23} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence

presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing

State v. Williams,

74 Ohio St.3d 569, 576

, 1996–Ohio–91,

660 N.E.2d 724

. Crim. R. 29(A)

allows a trial court to enter a judgment of acquittal when the State's evidence is insufficient

to sustain a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal

unless, after viewing the evidence in a light most favorable to the state, the court finds no

rational finder of fact could find the essential elements of the charge proven beyond a

reasonable doubt. State v. Franklin, 5th Dist. Stark No. 2007–CA–00022, 2007–Ohio–

4649 at ¶ 12, citing State v. Dennis,

79 Ohio St.3d 421

, 1997–Ohio–372,

683 N.E.2d 1096

{¶24} An appellate court's function when reviewing the sufficiency of the evidence

is to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime Richland County, Case No. 2020 CA 0063 11

proven beyond a reasonable doubt. State v. Jenks,

61 Ohio St. 3d 259

574 N.E.2d 492

paragraph two of the syllabus (1991).

{¶25} In counts five and eight, Appellant was charged with having a weapon under

a disability in violation of R.C. 2923.13(A)(2):

(A) Unless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any

firearm or dangerous ordnance, if any of the following apply:

(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been

a felony offense of violence.

{¶26} “Firearm” is defined by R.C. 2923.11(B):

(B)(1) “Firearm” means any deadly weapon capable of expelling or

propelling one or more projectiles by the action of an explosive or

combustible propellant. “Firearm” includes an unloaded firearm, and any

firearm that is inoperable but that can readily be rendered operable.

(2) When determining whether a firearm is capable of expelling or

propelling one or more projectiles by the action of an explosive or

combustible propellant, the trier of fact may rely upon circumstantial Richland County, Case No. 2020 CA 0063 12

evidence, including, but not limited to, the representations and actions of

the individual exercising control over the firearm.

{¶27} “[W]here an individual brandishes a gun and implicitly but not expressly

threatens to discharge the firearm at the time of the offense, the threat can be sufficient

to satisfy the state's burden of proving that the firearm was operable or capable of being

readily rendered operable. State v. Thompkins,

78 Ohio St.3d 380, 384

678 N.E.2d 541, 545

(1997).

{¶28} As to Count 5 of having a weapon under a disability, Mark Solon, C.C.’s

stepfather, testified he went to C.C.’s home to lock up the house, believing Appellant had

left the house. Appellant came out of the house with what appeared to Solon to be a

handgun in the waistband of his pants. Solon testified he was familiar with weapons,

and the handle he could see protruding from Appellant’s waistband appeared to be a

1911 semi-automatic pistol, not a revolver. When shown a picture of the handgun

recovered in the search of Appellant’s home, Solon testified based on the gun being in

Appellant’s waistband the entire time and Solon’s ability to view only the grip and rear,

the gun in the picture appeared to be “very similar.” Tr. 370. However, Solon was unable

to affirmatively testify the gun in the picture and the gun recovered from under Appellant’s

mattress were the same gun due to his inability to see the entire gun. The evidence

reflected Appellant kept the gun in the waistband of his pants during the entire encounter,

and did not brandish or implicitly threaten to discharge the weapon during the incident.

We therefore find the State failed to present sufficient evidence of operability to

demonstrate the handle observed by Solon was a firearm as defined by R.C. 2923.11(B), Richland County, Case No. 2020 CA 0063 13

and the trial court therefore erred in failing to grant Appellant’s motion for a directed verdict

of acquittal as to count five of having a weapon under a disability.

{¶29} Count eight of having a weapon under disability arose from the incident on

March 9, 2020, in which the neighbor girl, W.W., saw a man yelling and waving a gun at

her dog at 6:30 a.m. as she went to the bus stop to travel to school.

{¶30} Appellant first argues the evidence does not support a finding the weapon

observed by W.W. was an operable firearm as defined by R.C. 2923.11. W.W. testified

the man was pointing the gun at the ground, waving it up and down like he was trying to

move the dog away. The man was yelling at the dog. She testified, “He wasn’t being like

violent, but he wasn’t being nice.” Tr. 255. The yelling combined with the way the man

held the gun caused her concern. She testified she was able to see the front or top part

of the gun. She testified her dad has paint ball guns, and they are bigger than the gun

she the man in front of Appellant’s house holding. She testified the gun the man was

holding was pistol-sized. Viewed in a light most favorable to the State, we find W.W.’s

testimony about the appearance of the gun and the manner in which the man was yelling

and waving the gun around sufficient evidence from which a rational trier of fact could find

beyond a reasonable doubt the gun was a “firearm” as defined by R.C. 2923.11.

{¶31} Appellant also argues W.W. failed to identify him as the man who waved

the gun at her dog. W.W. was unable to identify Appellant, or any suspect, from a photo

lineup. She was also unable to identify Appellant at trial. The incident occurred around

6:30 a.m. on March 9, 2020, when it was not yet light outside, and she was unable to

clearly see the man’s face. The State presented evidence Appellant resided at the home

identified by W.W. with his girlfriend, C.C. C.C. testified Appellant had a pistol when he Richland County, Case No. 2020 CA 0063 14

moved in with her, which he carried “[e]veryday, all day long.” Tr. 277. C.C. testified he

carried the pistol everywhere, and never went anywhere without it. Although W.W. was

unable to clearly view the man’s face, she provided a general description of the man to

police as tall, not skinny but not fat, with a beard, and wearing a black hoodie. Sgt. James

Berry of the Richland County Sherriff’s Department went to Appellant’s home on March

9, after receiving the report of the incident with W.W. Appellant had a beard at that time,

met the general description given by W.W., and had a black or “extremely dark navy blue”

sweatshirt over his shoulder. Tr. 591. Viewed in a light most favorable to the State, we

find the evidence sufficient from which a rational trier of fact could find Appellant’s identity

proven beyond a reasonable doubt.

{¶32} The second assignment of error is overruled as to count eight and sustained

as to count five.

III.

{¶33} In his third assignment of error, Appellant argues the court erred in

sustaining the State’s objections to his questioning of Sgt. Berry and A.M. regarding

A.M.’s statements recorded in Sgt. Berry’s police report.

{¶34} “A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty.,

58 Ohio St.3d 269, 271

569 N.E.2d 1056

(1991). An abuse of discretion is more than a mere error in judgment; it is a

“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State

Med. Bd.,

66 Ohio St.3d 619, 621

614 N.E.2d 748

(1993). Richland County, Case No. 2020 CA 0063 15

{¶35} While cross-examining A.M., counsel for Appellant began reading to her

from Sgt. Berry’s report. After the State objected, counsel for Appellant represented at

sidebar A.M. previously made a statement to Sgt. Berry which was inconsistent with her

trial testimony. The trial court sustained the objection, and informed counsel the manner

in which to proceed if he wanted to use A.M.’s prior statement to impeach A.M.’s trial

testimony. Counsel responded, “That will work,” and, “So I will go ahead and ask her for

her response then.” Tr. 198. However, when questioning resumed, Appellant made no

attempt to impeach A.M. with her prior statement to Sgt. Berry.

{¶36} During cross-examination of Sgt. Berry, counsel for Appellant began

questioning the officer about statements he recounted in his police report made by A.M.

and by the woman whose house she ran to after escaping Appellant’s truck. The State

objected. The trial court sustained the objection, noting the report contained nested

hearsay, or “hearsay within hearsay.” Tr. 626.

{¶37} Appellant argues the police report was admissible as an exception to the

hearsay rule pursuant to Evid. R. 803(8):

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

(8) Public Records and Reports. Records, reports, statements, or

data compilations, in any form, of public offices or agencies, setting forth (a)

the activities of the office or agency, or (b) matters observed pursuant to

duty imposed by law as to which matters there was a duty to report,

excluding, however, in criminal cases matters observed by police officers Richland County, Case No. 2020 CA 0063 16

and other law enforcement personnel, unless offered by defendant, unless

the sources of information or other circumstances indicate lack of

trustworthiness.

{¶38} However, Appellant was attempting to introduce hearsay statements nested

within the document. Evid. R. 805 provides, “Hearsay included within hearsay is not

excluded under the hearsay rule if each part of the combined statements conforms with

an exception to the hearsay rule provided in these rules.” Appellant does not argue the

hearsay statements included within the report are admissible under any other exception

to the hearsay rule. We therefore find the trial court did not abuse its discretion in

excluding the statements within the police report as hearsay. Further, the police report is

not a part of the record before this Court on appeal, and we therefore cannot find

Appellant was prejudiced by its exclusion.

{¶39} The third assignment of error is overruled.

IV.

{¶40} In his fourth assignment of error, Appellant argues the record demonstrates

Appellant was wearing a face mask in the courtroom, and every witness identification of

Appellant is therefore “suspect.”

{¶41} Nothing in the record demonstrates Appellant’s mask affected the in-court

identifications by witnesses. A.M. and C.C. both were romantically involved with

Appellant, and lived with Appellant and thus were very familiar with his appearance.

C.C.’s mother and stepfather interacted with Appellant on multiple occasions, as did the

police officers who identified Appellant at trial. Appellant’s argument their identifications Richland County, Case No. 2020 CA 0063 17

were unreliable because he was wearing a face mask to comply with the trial court’s

Covid-19 safety procedures is speculative. We find the record does not demonstrate the

in-court identifications by the witnesses in the instant case were rendered unreliable by

Appellant’s use of a face mask.

{¶42} In addition, Appellant removed his face mask to testify. Tr. 659. This

allowed the jury to clearly see his face and identify him through the body-camera video

which earlier had been played during the testimony of Sgt. Berry.

{¶43} The fourth assignment of error is overruled.

{¶44} In his fifth assignment of error, Appellant argues the trial court erred in

allowing the State to amend the indictment to conform to the evidence presented at trial

with regard to Counts 1 through 4, and later as to Count 5.

{¶45} We find Appellant’s argument as to Count 5 is rendered moot by our ruling

in assignment of error two the conviction on count five was supported by insufficient

evidence.

{¶46} Crim. R. 7(D) provides: