COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70729 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DAVID MERRITT : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-328274. JUDGMENT: AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR PARTIAL RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Denise R. Cameron Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Stephen L. Miles, Esq. 20800 Center Ridge Road Suite 217 Rocky River, Ohio 44116 SWEENEY, JAMES D., C.J.: Defendant-appellant David L. Merritt, date of birth January 24, 1974, appeals from his jury trial convictions of the following offenses: (1) count one, Aggravated Burglary [R.C. 2911.11]; (2) count two, Aggravated Robbery [R.C. 2911.01]; and (3) counts three 1 and four, Assault on a Police Officer [R.C. 2903.13]. For the reasons adduced below, we affirm in part and reverse and remand in part for resentencing. A review of the record on appeal indicates that five witnesses testified on behalf of the prosecution. The first witness for the prosecution was Miss Tanya Phelps, who stated that on July 10, 1995, at approximately 9:00 to 10:00 p.m., she was at home at 10601 Woodland Avenue in the City of Cleveland's Woodhill Estates with her sister's several children, her sister's boyfriend, David Thomas, her own boyfriend, Lucky, and another friend of the witness named Rick. At that time, the witness observed some of her friends outside and went to the door to talk. Miss Phelps opened the door and five adult males rushed in. These trespassers, one of whom was identified as the defendant and who had a knife displayed, attacked Mr. Thomas and beat him, and then rifled through Mr. Thomas's pockets in search of money. The trespassers then left the home, returning seconds later. This second time, Miss Phelps allegedly 1 Defendant was acquitted on one count of Having a Weapon While Under a Disability [R.C. 2923.13], and the jury found that he did not have possession of a firearm while committing the offenses charged. - 3 - observed the defendant with a gun, pointing it at Mr. Thomas and herself while demanding money and jewelry. Miss Phelps stated that she had seen the defendant in the neighborhood, but did not know him personally. Miss Phelps also stated that the defendant threatened Mr. Thomas with a knife. Upon leaving the home a second time, defendant was tackled by the police. The second witness for the prosecution was Mr. Thomas, who generally corroborated the testimony of Miss Phelps, adding that the trespassers took from his person $35 in cash, $69 in food stamps and his mother's obituary, and that he was jabbed at with a knife. The third witness for the prosecution was Cuyahoga Metropolitan Housing Authority police officer Charles Kleinhenz, who responded at approximately 1:00 a.m. to the vicinity of Miss Phelp's home as a result of a radio dispatch concerning domestic violence at that address. Officer Kleinhenz was accompanied by fellow officers, Officers Ramione, Martin and Dunlap. Officers Kleinhenz and Ramione approached the front door while Officers Martin and Dunlap approached the rear door of the home. Officer Kleinhenz stated that Officer Martin radioed him that a male was observed running along the side of the home toward the front of the house. Officer Ramicone, at the front of the home, tackled and stopped the defendant. The other officers swarmed to the scene of the tackling to assist in subduing the suspect, who was observed struggling with and striking Officers Kleinhenz and Dunlap in their - 4 - faces several times. Officer Kleinhenz stated that $60 in food stamps and an obituary were found in the defendant's possession at the time of his arrest, but no weapons were observed, or found, in the possession of the defendant. Officer Martin testified as the fourth witness for the prosecution, generally corroborating the testimony of Officer Kleinhenz, adding that the four males exited the rear of the home as Miss Phelps followed shouting that she had been robbed. The witness observed some of the males exchange some items before three of the males fled eastbound in one direction as the remaining male, having seen the police, fled toward the front of the home. Officer Dunlap testified as the fifth witness for the prosecution, generally corroborating the testimony of Officers Kleinhenz and Martin, adding that the struggle with the suspect hurt very much, causing the witness to receive medical attention for cuts on his knees and wrists and assorted bruises. At that point the prosecution rested and the defense moved for acquittal pursuant to Crim.R. 29. The trial court denied this motion for acquittal. The defense case consisted of the testimony of four witnesses. The first such witness was Mr. Darius Lee Neal, who stated that he has known the defendant for ten years. The witness, defendant, and two other young men, Shane and Antonio, last names unknown, were together on the date of the offense and went to the victim's home around 8:30 p.m. They knocked on the door and the victim let - 5 - them in the home. The witness stated that the adults in the home talked and there was no screaming, threats or physical attacks, and that a male inside the home came down the steps and gave the defendant some money. The visitors, except Shane, left after approximately twelve minutes and waited outside. While waiting outside, the witness heard some screaming from a deep voice emanate from the home. The witness ran from the area when the police approached at approximately 9:00 p.m. because the witness had some 2 "blunts" in his possession. Antonio ran with the witness. The witness, who admitted to having a prior felony drug conviction, observed no weapons that night. The second witness for the defense was Miss Darlene Taylor, who lived across the street from the victim's home on the date of the offense. The witness stated that she heard a scream at approximately 12:30 a.m., went to her window, and observed the several police officers on top of some man near the curb, attempting to handcuff the man. This man was screaming for help. She is unaware of what transpired before that point. The third witness for the defense was Miss Janice Boone, who stated that she has known the defendant for approximately seven years and that she received a telephone call from another friend at approximately 1:00 a.m., telling her that the defendant was being beaten by the police. In response to this message, the witness 2 The witness described a "blunt" as a cigar filled with marijuana. (R. 206.) - 6 - went to the scene where she observed the defendant in the rear of a police car. The defendant testified as the fourth witness for the defense, generally corroborating the testimony of Mr. Neal, adding that the man named David, who was in the home, owed the defendant $60. When the defendant asked for the money, this David gave the defendant $60 in food stamps. The defendant denied having any currency or obituary on his person at the time of his arrest, and denied being armed with a weapon that evening. The witness also claimed that the victim, Miss Phelps, repeatedly kicked him while the police were attacking him. He also denied ever striking the police officers, despite being sprayed with mace by separate officers on separate occasions that evening while the officers tried to beat him up. At that point, the defense renewed the motion for acquittal. (R. 309.) This motion was denied. Subsequent to the jury returning the verdict, the trial court sentenced the defendant to 7 to 25 years on counts one and two, and 2 years each on counts three and four, all counts to run concurrently with credit for time served. This delayed appeal presents two assignments of error. I THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 7 - Despite the wording used by appellant in the assignment, appellant argues in his brief that the verdicts were against the manifest weight and sufficiency of the evidence. The standard of appellate review for the arguments presented in this assignment were recently reiterated in State v. Wigley (February 6, 1997), Cuyahoga App. No. 69920, unreported, at 7-9: The standard of review for an appeal on the grounds of manifest weight of the evidence is as follows: In determining whether the verdict is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. This court also notes that the credibility of the witnesses is primarily the trier of fact's determination. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 231. The following was recently stated by this court relative to a sufficiency of the evidence argument: - 8 - The standard of review with regard to the sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is 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 proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3. Having reviewed the testimony and evidence presented, and considering that the defendant threatened to inflict serious physical harm on another when he threatened another person with a - 9 - knife inside the home and that the structure was occupied at the time of the offense, we conclude that the verdicts were supported by both the manifest weight and sufficiency of the evidence. See R.C. 2911.01(A)(2), and 2911.11(A)(1) and (3). The first assignment of error is overruled. II THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A TERM OF TWO YEARS ON THE FOURTH DEGREE FELONY ASSAULT OF A POLICE OFFICER. The appellee concedes that this assignment has merit. Imprisonment for a fourth degree felony where serious physical harm to another person was not demonstrated is limited to 6 months, 12 months or 18 months. R.C. 2911.11(D)(2). The sentences imposed for counts three and four are clearly excessive. Accordingly, the sentences imposed for counts three and four are vacated and the matter remanded, in part, for resentencing on counts three and four only. The second assignment is affirmed. Judgment affirmed in part, and reversed and remanded in part for partial resentencing. - 10 - This cause is affirmed in part, and reversed and remanded in part for partial resentencing. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, J., and LEO M. SPELLACY, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .