State v. MerrittState v. Merritt
Case Information
*1
[Cite as
State v. Merritt
,
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 O P I N I O N
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
Hoffman, J. 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 (
STATEMENT OF THE FACTS AND CASE 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. 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. *3 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. 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. 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 *4 12, 2020, two loaded firearms were found in the bedroom under the mattress. Bullet holes were found throughout the home. 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. 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.
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.
I.
{¶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
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 ,
dismiss for violation of his speedy trial rights as set forth in
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.
(C) Division (A) of this section expires on the date the period of emergency ends or July 30, 2020, whichever is sooner. 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
{¶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. Trial counsel's failure to file a suppression motion does not per se constitute
ineffective assistance of counsel. State v. Madrigal ,
secure the warrant is a part of the record before this Court on appeal. However, he argues
based on Chimel v. California ,
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 *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. 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.
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 *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. 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.
{¶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.
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
presented at trial. State v. Blue , 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing
State v. Williams ,
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
*11
proven beyond a reasonable doubt. State v. Jenks ,
a disability in violation of
(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.
“Firearm” is defined by
(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 *12 evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm. “[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 ,
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
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. Appellant first argues the evidence does not support a finding the weapon
observed by W.W. was an operable firearm as defined by
as to count five.
III. 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. “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 .,
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. 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. Appellant argues the police report was admissible as an exception to the
hearsay rule pursuant to
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 *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.
IV. 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.” 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 *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.
V. 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. 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.
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 *18 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 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. Although the rule permits most amendments, it flatly prohibits amendments
which change the name or identity of the crime charged. See State v. O'Brien , 30 Ohio
St.3d 122, 126, 30 OBR 436, 508 N.E.2d 144 (1987). A trial court commits reversible
error when it permits an amendment which changes the name or identity of the offense
charged, regardless of whether the defendant suffered prejudice. State v. Smith , Franklin
App. No. 03AP–1157,
about December 9, 2019.” After a photograph of Appellant with a handgun in his possession was 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. The photograph facially reflected a date of December 5, 2019. Appellant relies on this Court’s decision in State v. Plaster , 164 Ohio App.
3d 750,
about December 9, 2019” to “on or about December 5 th through December 9 th , 2019.” Tr. *20 211. The amendment was based on the existence of a date on a picture of Appellant with a handgun, which was dated December 5, 2019. The charges in counts one through four all surrounded the incident which occurred with A.M., in which Appellant shot through her bed into the floor, forced her into his truck, and told her he was going to kill her and make her dig the hole in which to bury her. From these events, Appellant was acquitted of one charge of domestic violence, but was convicted of domestic violence, aggravated menacing and having a weapon under disability. Unlike Plaster , the record does not demonstrate Appellant was potentially convicted of separate incidents which were not presented to the grand jury, nor does the amendment in the instant case change the offense to a continuous course of conduct. The picture bearing the date of December 5, 2019 was provided to defense counsel in discovery. We find the trial court did not err in allowing the State to amend the indictment to conform to the victim’s testimony and the picture admitted into evidence in the instant case, as the record does not demonstrate the amendment changed the nature or identity of the offense, nor does the record demonstrate Appellant was potentially convicted on separate charges from those presented to the grand jury. The fifth assignment of error is overruled.
VI. Appellant argues all counts of having a weapon under a disability should merge for sentencing because he engaged in a single course of conduct in possessing the guns during a time frame from December 5, 2019, through March 12, 2020. He argues the acts were not committed separately, but only detected by various witnesses on separate dates, and all acts were committed with the same animus. *21 Count one involved the gun possessed by Appellant in the picture taken by
A.M. on December 5, 2019, and fired through her bed into the floor on December 9, 2019.
Count five has been vacated by this Court pursuant to Appellant’s second assignment of
error, and any argument regarding merger is therefore rendered moot. Count eight
involved Appellant’s brandishing the gun to scare away W.W.’s dog on March 9, 2020.
Counts nine and ten relate to the handgun and the shotgun recovered from under a
mattress during the search of Appellant’s home on March 12, 2020.
In State v. Ruff ,
the Ohio Supreme Court held when considering whether there are allied offenses which
merge into a single conviction under
the counts arising from the discovery of the weapons under the mattress. Therefore, the harm for A.M. and for W.W. is separate and distinct, and Appellant can be convicted of multiple counts. *22 Appellant argued at sentencing counts nine and ten should merge because
the shotgun and the handgun were found in the same location. Although the weapons were located in the same place, the record demonstrates the weapons were acquired and possessed with separate animus or motivation. C.C. testified Appellant brought the pistol with him when he moved into her home, and carried it everywhere with him. She testified he bought the shotgun for her protection, and left it at home with her. Tr. 277. We therefore find the offenses were committed separately and with separate motivation in the instant case, although the evidence of each was discovered at the same time. The trial court did not err in failing to merge the offenses. The sixth assignment of error is overruled. Appellant’s conviction and sentence on count five of having a weapon under
disability is reversed, and pursuant to
By: Hoffman, J.
Baldwin, P.J. and
Wise, John, J. concur