State v. Stuckman , 2018 Ohio 4050 ( 2018 )

[Cite as State v. Stuckman, 2018-Ohio-4050.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals Nos. S-17-039
S-17-040
Appellee
Trial Court Nos. 17CR236
v. 17CR331
Armis Stuckman aka Justin Harris DECISION AND JUDGMENT
Appellant Decided: October 5, 2018
*****
Timothy Braun, Sandusky County Prosecuting Attorney, and
Mark E. Mulligan, Assistant County Prosecutor, for appellee.
James H. Ellis III, for appellant.
*****
MAYLE, P.J.
{¶ 1} In this consolidated appeal, appellant, Armis Stuckman aka Justin Harris
(“Stuckman”), appeals a jury verdict finding him guilty of two counts of burglary in
violation of R.C. 2911.12(A)(2); grand theft in violation of R.C. 2913.02(A)(1), with a
firearm specification; attempted aggravated murder in violation of R.C. 2903.01(B) and
2923.02; aggravated robbery in violation of R.C. 2911.01(A)(1); felonious assault in
violation of R.C. 2903.11(A)(2); theft in violation of R.C. 2913.02(A)(1); and receiving
stolen property in violation of R.C. 2913.51(A).
{¶ 2} In an order journalized on September 11, 2017, the Sandusky County Court
of Common Pleas sentenced Stuckman to an aggregated term of 19 years in prison for
these eight convictions, and ordered Stuckman to pay restitution to the two burglary
victims.
{¶ 3} For the reasons that follow, we affirm the judgment below.
I. Background
{¶ 4} Stuckman’s convictions relate to three separate incidents: (1) a burglary at
the residence of “J.P.” on November 21, 2016; (2) a burglary at the residence of “J.S.” on
December 4, 2016; and (3) the attempted aggravated murder of “M.R.” on November 24,
2016.
1. The Burglary of J.P.’s Residence on November 21, 2016
{¶ 5} J.P. lives in Vickery, Ohio. On November 21, 2016, J.P. locked his house
and went to work on his farm. When he returned, he found that someone had broken the
lock on his door. He entered the house and saw that several items had been stolen,
including his mother’s pink jewelry box, two diamond rings, a bracelet, a gold Timex
watch, and a Chinese SKS assault rifle, which the state presented into evidence as exhibit
No. 1 at trial. J.P. identified exhibit No. 1 as the SKS assault rifle that was stolen from
his house.
2.
{¶ 6} Stuckman’s ex-girlfriend, C.S., testified at trial. C.S. testified that she knew
Stuckman as both “Shadow” and Justin Harris. C.S. was occasionally homeless and
transient. While they were together, C.S. and Stuckman stayed in several different
places, including a Cadillac. The Cadillac was filled with many items that were later
determined to be relevant to the other two incidents at issue in this case (the
November 24, 2016 burglary and the December 4, 2016 attempted aggravated murder),
as well as various items bearing the name “Justin Harris,” which C.S. testified belonged
to Stuckman. Notably, in a recorded phone conversation, Stuckman asked C.S. why she
handed over items from the car to the police, and asked “how do they know about the car,
about the Cadillac?”
{¶ 7} Regarding the burglary of J.P.’s residence on November 21, 2016, C.S.
testified that she went with Stuckman to Vickery that day. They parked a distance from a
house, they saw the owner leave, and then Stuckman told C.S. that he “had to get some
stuff that he left there.” After about ten minutes, Stuckman came out with “all the stuff”
including jewelry, tools, and a gun. C.S. identified exhibit No. 1 as the gun that
Stuckman took from the house. She testified that she and Stuckman then went to Grant
Street in Fremont, to a guy named “Rick’s” house, and Stuckman took the rifle inside the
house while she stayed in the car.
{¶ 8} R.P. testified that he met Stuckman, whom he knew as both “Shadow” and
“Stuckman,” while he was in jail serving a DUI conviction in 2015. He testified that
Stuckman had taken a .38 handgun from him, and R.P. told him that he was going to the
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authorities if Stuckman did not “make things right.” Stuckman told him that he would
sell him an M1 carbine that was “personally his” for $100, and they could “call it even.”
Stuckman then presented him with an SKS rifle (not an M1 carbine), and R.P. ended up
just “taking it” from him because he claimed that it was worth less than the .38 handgun,
which he said was a valuable collector’s gun. R.P. then took the SKS rifle apart to fix it.
{¶ 9} Approximately two weeks later, Detective Kenneth Arp received a tip that
the stolen SKS rifle was at a specific house on Grant Street in Fremont—R.P.’s
residence. He went to that address, and R.P. came to the door. Detective Arp inquired
about the SKS rifle, and R.P. stated that he had been given an SKS rifle approximately
two weeks ago and was in the process of fixing it. R.P. then retrieved the pieces that he
had taken apart, put the SKS rifle back together, and gave it to Detective Arp. At trial,
Detective Arp identified exhibit No. 1 as the SKS rifle that he received from R.P.
{¶ 10} R.P. identified Stuckman in a photo lineup as the person who gave him the
SKS rifle. R.P. denied knowing that the rifle was stolen.
2. The Burglary of J.S.’s Residence on December 4, 2016
{¶ 11} J.S. lives in an apartment on S. Buchanan Street in Fremont, Ohio. On
December 4, 2016, a friend of his named Z.H. (who was also acquainted with Stuckman)
called him and said that she was at the Days Inn on Route 53, and asked J.S. to “bring her
something to drink.” J.S. drove out to the Days Inn, but Z.H. was not there. J.S. then
returned home and found that his apartment had been burglarized. Several items were
missing from his apartment including two flat screen televisions, a PlayStation, numerous
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hats and shoes, coats, and a wedding ring. He identified exhibit No. 24 as a pair of his
stolen shoes, and exhibit No. 26 as one of his stolen hats. J.S. testified that he called
Z.H., told her that his neighbors saw a blonde girl in a Fremont Ross t-shirt robbing his
apartment, and Z.H. confessed to him. J.S. and Z.H. then went to the police station,
where she made a written statement.
{¶ 12} Z.H. testified at trial. She said that she knew Stuckman―whom she knew
as both “Shadow” and Justin―from hanging around the Double A Motel, where they
would do drugs together. She said that Stuckman and another man, D.H., called her and
said they needed money. At the time she received their call, she was standing outside
J.S.’s apartment. Z.H. told them to come rob J.S.’s place.
{¶ 13} Z.H. went in through a window, and unlocked J.S.’s door for Stuckman and
D.H. She testified that they stole televisions, about 20 pairs of shoes, hats, a PlayStation,
and jewelry. At trial, Z.H. identified exhibit No. 24 as J.S.’s black Air Force Nikes and
exhibit No. 26 as J.S.’s COOGI hat―both of which they stole from J.S.’s apartment.
Notably, the police had obtained J.S.’s shoes (exhibit No. 24) and hat (exhibit No. 26)
from the Cadillac that Stuckman sometimes stayed in with his ex-girlfriend, C.S.
{¶ 14} Z.H. testified that a few hours after the burglary of J.S.’s apartment, J.S.
sent her a Facebook message with a photo taken by his neighbors that showed Z.H. and
two other people robbing the house. Z.H. said that she then confessed to J.S., and the two
of them met at Advance Auto Parts and then went to the police station where she
provided a written statement. In Z.H.’s statement, which she read at trial, Z.H. stated that
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a few weeks prior, “Shadow ‘Justin’” told her about “slicing the guy’s neck at [the]
Double A Motel” (i.e., the attempted aggravated murder charge against Stuckman in this
case, which will be discussed in further detail below.) Z.H. said that ever since he told
her that, Stuckman “threatened to kill me if I didn’t do anything he asked”―which is
why she told him to rob J.S.’s house when he asked for “somebody he can rob.”
{¶ 15} At trial, Z.H. elaborated on her conversation with Stuckman regarding him
“slicing” M.R.’s neck.
3. The Attempted Aggravated Murder of M.R. on November 24, 2016
{¶ 16} Z.H. testified that she met Stuckman around 9:00 a.m. on November 24,
2016―which was Thanksgiving day―and they went to Kroger. There, Stuckman “went
in to swipe a credit card while [Z.H.] was rolling a blunt.” She said that he came back
with beer and money, and they went to Walsh Park. When they were at Walsh Park, Z.H.
asked Stuckman where he got the money and credit cards, and Stuckman said that “if he
told me, he’d have to kill me.” Z.H. laughed it off, and then Stuckman told her that he
“sliced some dude’s throat” and that it happened there, at Walsh Park. Stuckman told
Z.H. that it was “the drunk dude that stays out at Double A.” Z.H. then asked if he meant
“the dude that stayed in 209” and he said “yeah.” Z.H. told Stuckman that guy was her
“buddy.” Z.H. did not initially believe Stuckman, but a few minutes later she checked
Facebook and saw a news report that “some dude at Double A got his neck sliced.” At
trial, Z.H. described the victim as a man with “shaggy hair, worked all the time, stayed in
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209, stayed drunk but he kept his job” and identified a mugshot photo of M.R. as that
man.
{¶ 17} M.R. testified at trial. M.R. lived in room 209 at the Double A motel in
Fremont, Ohio. He got off work during the early morning hours of November 23, 2016,
and went back to his motel room to sleep. He woke up in the early evening, went to a bar
and had a few beers, and then came back to the motel where he “rested” some more. At
some point during the night, he woke up and met a “black guy” at the motel. M.R. left
the motel with him because the guy said “something about a party or something,
something going on somewhere.” They got into a car, and while they were driving, M.R.
told the guy that he had to pee. The guy pulled the car into Walsh Park, and M.R. got out
of the car. While he was urinating in the park, the guy put his arm around him, put a
knife to his throat, and grabbed M.R.’s wallet from his back pocket. The two struggled,
and the guy slashed his throat and took off with M.R.’s wallet.
{¶ 18} M.R. testified that his wallet contained $400 cash, a pay card with $500 left
on it, his social security card, and his First Federal Bank ID card. Notably, the police
eventually recovered M.R.’s Fremont Federal bank card (exhibit No. 30) and social
security card (exhibit No. 31) from the Cadillac that Stuckman shared with his ex-
girlfriend C.S.―i.e., the same car that contained J.S.’s stolen property.
{¶ 19} M.R. testified that after the guy took off, he walked back to the Double A
motel from Walsh Park, where he called 911. Officer Christian Ortolani was dispatched
to the Double A motel in response to the call. Officer Ortolani testified that he knocked
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on room 209 around 5:00 a.m., and saw that the man who answered the door was
intoxicated and his throat was cut. The officer took photos of the scene, which were
offered into evidence. The man told Officer Ortolani that his throat was slashed at “the
park.” Officer Ortolani later found blood in the lobby of the Double A motel and
followed a blood trail out the door. The blood trail eventually led police to a picnic table
at Walsh Park, where the trail stopped.
{¶ 20} At some point, the police showed M.R. a photo array, but he was unable to
identify his attacker.
II. The Indictments
{¶ 21} On March 9, 2017, a Sandusky County Grand Jury indicted Stuckman in
case No. 17CR236 on one count of receiving stolen property, in violation of R.C.
2913.51(A), a fourth-degree felony. This charge related to J.P.’s stolen SKS rifle.
{¶ 22} On April 4, 2017, a Sandusky County Grand Jury indicted Stuckman in
case No. 17CR331 on eight counts: (1) burglary in violation of R.C. 2911.12(A)(2),1 a
second-degree felony; (2) grand theft in violation of R.C. 2913.02(A)(1), a third-degree
felony, with a firearm specification under 2929.14; (3) attempted aggravated murder, in
1
Although the indictment initially stated that Stuckman was charged with burglary in
violation of R.C. 2911.12(A)(1), the state moved to amend the indictment on the grounds
that the “(1)” was a typographical error and it should have referenced R.C. 2911.12(A)(2)
instead. Over Stuckman’s objection, the trial court granted the state’s motion to amend
the indictment to reflect that Stuckman was charged with a violation of R.C.
2911.12(A)(2). Stuckman has not assigned any error related to that amendment of the
indictment.
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violation of R.C. 2903.01(B) and 2923.02, a first-degree felony; (4) aggravated robbery,
in violation of R.C. 2911.01(A)(1), a first-degree felony; (5) felonious assault, in
violation of R.C. 2903.11(A)(2), a second-degree felony; (6) burglary, in violation of
R.C. 2911.12(A)(2), a second-degree felony; (7) theft, in violation of R.C. 2913.02(A)(1),
a fifth-degree felony; and (8) resisting arrest, in violation of R.C. 2921.33(A), a second-
degree misdemeanor. Counts 1 and 2 related to the events of November 21, 2016;
Counts 3, 4, and 5 related to the events of November 24, 2016; and Counts 6 and 7
related to the events of December 4, 2016.
{¶ 23} On June 8, 2017, Stuckman moved to sever the trial of case No. 17CR236
(involving one count of receiving stolen property) from the trial of case No. 17CR331,
arguing that he was prejudiced by the joinder of the indictments.
{¶ 24} In a written order dated July 11, 2017, the trial court denied the motion
with respect to case No. 17CR236 and Counts 1-7 of case No. 17CR331. The court
found, however, that the charge of resisting arrest, Count 8 of case No. 17CR331, was
sufficiently separate from the other charges and ordered that it be tried separately.2
III. The Jury Verdict and Sentence
{¶ 25} The matter proceeded to trial, and the jury found Stuckman guilty on all
counts. On September 7, 2017, the trial court held a sentencing hearing.
2
The state eventually entered a nolle prosequi for Count 8 of case No. 17CR331.
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{¶ 26} The court determined that Count 1 (burglary) and Count 2 (grand theft,
with a firearm specification) in case No. 17CR331, which related to the crimes against
J.P. on November 21, 2016, were allied offenses of similar import under R.C. 2941.25
and should, therefore, merge. The state elected to proceed with Count 1 (burglary), and
the trial court sentenced Stuckman to eight years in prison for that burglary conviction.
{¶ 27} The court determined that Count 3 (attempted aggravated murder), Count 4
(aggravated robbery), and Count 5 (felonious assault), which related to the crimes against
M.R. on November 24, 2016, were allied offenses of similar import under R.C. 2941.25
and should, therefore, merge. The state elected to proceed with Count 3 (attempted
aggravated murder), and the court sentenced Stuckman to 11 years in prison for that
conviction.
{¶ 28} The court also determined that Count 6 (burglary) and Count 7 (theft),
which related to the crimes against J.S. on December 4, 2016, were allied offenses of
similar import under R.C. 2941.25 and should, therefore, merge. The state elected to
proceed with Count 6 (burglary), and the court sentenced Stuckman to four years in
prison for that burglary conviction.
{¶ 29} Finally, with respect to Stuckman’s conviction in case No. 17CR236 for
receiving stolen property (i.e., the stolen SKS rifle) the court sentenced Stuckman to 12
months in prison.
{¶ 30} The court ordered the sentences imposed in Counts 1 and 6 in case No.
17CR331 and Count 1 in case No. 17CR236 to be served concurrently, and the sentence
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imposed in Count 3 of case No. 17CR331 to be served consecutively to the other
sentences, for an aggregate term of 19 years in prison. The court ordered Stuckman to
pay the costs of prosecution and restitution in the amount of $200 to J.P. and $4,850 to
J.S.
{¶ 31} The court’s judgment entry was journalized on September 11, 2017, and
this appeal followed. Stuckman asserts the following assignments of error on appeal:
A. FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT
ERRED BY DENYING APPELLANT’S MOTION TO SEVER COUNT
ONE IN THE INDICTMENT IN CASE NO. 17CR236 FROM THE
COUNTS IN THE INDICTMENT IN CASE NO. 17CR331.
B. SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT
ERRED IN DENYING APPELLANT’S MOTION FOR ACQUITTAL ON
THE CHARGES OF ATTEMPTED AGGRAVATED MURDER,
AGGRAVATED ROBBERY AND FELONIOUS ASSAULT.
C. THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT
ERRED BY GRANTING THE MOTION OF THE STATE TO AMEND
THE INDICTMENTS AT TRIAL TO IDENTIFY APPELLANT BY HIS
ACTUAL NAME ALONG WITH A NAME THAT IS NOT HIS.
{¶ 32} We consider each of these assignments of error in turn.
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1. The Joinder of Case Nos. 17CR236 and 17CR331
{¶ 33} On June 8, 2017, Stuckman moved to sever the trial of case No. 17CR236
(involving one count of stolen property) from the trial of case No. 17CR331, arguing that
he was prejudiced by the joinder of the indictments. In his written motion, Stuckman
argued that by joining cases involving “a series of separate actions on five different
dates,” the state was “attempting to paint the defendant as a bad person with a broad
brush creating a substantial risk of confusing the jury leading to convictions on counts
where the evidence is weak or insufficient.” The trial court conducted a hearing on the
motion to sever, as well as several other pretrial motions, on July 7, 2017. The record,
however, does not contain a transcript of those proceedings.
{¶ 34} Although the motion asked the court to sever case No. 17CR236 from case
No. 17CR331, the trial court treated it as a motion to sever all counts of the two cases
from each other. In a written order dated July 11, 2017, the trial court denied the motion
with respect to case No. 17CR236 and Counts 1-7 of case No. 17CR331. The court
stated that it intended to issue cautionary instructions to the jury to consider only the
evidence offered on each charge, and that those instructions “will prevent any likelihood
that the jury will improperly associate guilt from one charge to the other.” The court
found that the charge of resisting arrest, Count 8 of case No. 17CR331, was sufficiently
separate from the other charges and ordered that it be tried separately.
{¶ 35} In his first assignment of error, Stuckman argues that the trial court abused
its discretion in denying his motion to sever. Stuckman does not argue that any of the
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counts of case No. 17CR331―which related to three separate incidents on November 21,
2016, November 24, 2016, and December 4, 2016―should have been severed from each
other. Rather, Stuckman argues that the trial court abused its discretion by not ordering
separate trials for case No.17CR236 (involving one count of receiving stolen property)
and case No. 17CR331, and that he was prejudiced by the joinder of the two cases for
trial.
{¶ 36} Under Crim.R. 13, a court may order two or more cases to be tried together
“if the offenses * * * could have been joined in a single indictment * * *.” Multiple
offenses may be joined in a single indictment if the offenses “are of the same or similar
character, or are based on the same act or transaction, or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan, or are
part of a course of criminal conduct.” Crim.R. 8(A). It is well-settled that joinder is
favored and is to be “liberally permitted.” State v. Scott, 6th Dist. No. S-02-026, 2003-
Ohio-2797, ¶ 13, quoting State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).
“The law favors joinder for public policy reasons, such as: to conserve judicial economy
and prosecutorial time; to conserve public funds by avoiding duplication inherent in
multiple trials; to diminish the inconvenience to public authorities and witnesses; to
promptly bring to trial those accused of a crime; and to minimize the possibility of
incongruous results that can occur in successive trials before different juries.” Id.,quoting State v. Dunkins, 10 Ohio App.3d 72, 460 N.E.2d 688 (9th Dist.1983), paragraph
one of syllabus.
13.
{¶ 37} Although joinder is well-favored by Ohio law, a defendant may move to
sever the charges under Crim.R. 14 upon a showing of prejudice. State v. Lott, 51 Ohio
St.3d 160, 163, 555 N.E.2d 293 (1990). “If a motion to sever is made at the outset of a
trial, it must be renewed at the close of the state’s case or at the conclusion of all of the
evidence so that a Crim.R. 14 analysis may be conducted in light of all the evidence
presented at trial.” State v. Rojas, 6th Dist. Lucas No. L-11-1276, 2013-Ohio-1835, ¶ 34,
citing State v. Hoffman, 9th Dist. Summit No. 26084, 2013-Ohio-1021, ¶ 8. If a motion
to sever is not renewed, then the issue is waived for purposes of appeal. Id. Here,
Stuckman renewed his pre-trial motion to sever at the close of the state’s case, which
preserved the issue for our review.
{¶ 38} To prevail on his claim on appeal that the trial court erred in denying his
motion to sever, Stuckman bears the burden of demonstrating that his rights were
prejudiced and he must also “affirmatively demonstrate * * * that at the time of the
motion to sever he provided the trial court with sufficient information so that it could
weigh the considerations favoring joinder against the defendant’s right to a fair trial.”
Schaim at 59.
{¶ 39} In response, the state can use two methods to defeat a defendant’s claim of
prejudice under Crim.R. 14: the “other acts” test or the more lenient “joinder” test. State
v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). Under the other acts test, the
state must show that evidence of the other charged offenses would be admissible as
“other acts” under Evid.R. 404(B) even if the counts are severed for trial. State v.
14.
Gibson, 6th Dist. Lucas Nos. L-13-1222 and L-13-1223, 2015-Ohio-1679, ¶ 28, citing
State v. Townsend, 6th Dist. Lucas No. L-00-1290, 2002-Ohio-2289. Under the joinder
test, the state can defeat a claim of prejudice by showing that the jury is capable of
separating the proof of each crime because the evidence of each crime is simple and
direct. Id. “Ohio appellate courts routinely find no prejudicial joinder where the
evidence is presented in an orderly fashion as to the separate offenses or victims without
significant overlap or conflation of proof.” State v. Lewis, 6th Dist. Lucas No.
L-09-1224, L-09-1225, 2010-Ohio-4202, ¶ 33.
{¶ 40} Putting aside for a moment the issue of prejudice, Stuckman has failed to
“affirmatively demonstrate * * * that at the time of the motion to sever he provided the
trial court with sufficient information so that it could weigh the considerations favoring
joinder against the defendant’s right to a fair trial.” Schaim at 59. In his written motion
to sever, Stuckman merely argued―in pure conclusory fashion―that joinder was
inappropriate because the state was “attempting to paint the defendant as a bad person
with a broad brush creating a substantial risk of confusing the jury leading to convictions
on counts where the evidence is weak or insufficient.” Stuckman did not offer any
further explanation. And, although it is possible that Stuckman provided additional
information to the trial court during the July 7, 2017 hearing on his motion to sever,
Stuckman failed to file a transcript of that hearing. We must therefore assume regularity
in the proceedings. See Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384 (1980). Accordingly, we find that Stuckman failed to provide the trial court
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with any specific information that would have enabled it to undertake the weighing test
outlined in Schaim. See State v. Wells, 7th Dist. Jefferson No. 98-JE-3, 2000 Ohio App.
LEXIS 1219, *28 (Mar. 22, 2000) (finding that appellant “failed to appraise the trial
court of the particular evidence it anticipated would be used with respect to the different
offenses charged. As such, the trial court did not have sufficient information before it to
weigh the considerations favoring joinder against appellant’s right to a fair trial.”).
{¶ 41} Regardless, we also find that the trial court did not abuse its discretion
when it denied Stuckman’s motion to sever case No. 17CR236, which involved only one
count of receiving stolen property, from case No. 17CR331. Our review of the record
reveals that the evidence related to the receiving-stolen-property charge of case No.
17CR236 ―i.e., evidence that Stuckman had obtained a stolen SKS rifle, that was
identified as belonging to J.P., before he provided that same SKS rifle to R.P.―was
simple, direct, and capable of being separated from the evidence relating to the charges at
issue in case No. 17CR331. Accordingly, the “joinder test” is satisfied.
{¶ 42} For these reasons, we find Stuckman’s first assignment of error not well-
taken.
2. The Sufficiency of the Evidence
{¶ 43} In his second assignment of error, Stuckman claims that his convictions for
attempted aggravated murder, aggravated robbery, and felonious assault—which relate to
M.R. and the events of November 24, 2016—were not supported by sufficient evidence
and that the trial court erred in denying his Crim.R. 29 motion for acquittal. He asserts
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that these three convictions lack sufficient evidence because, he argues, they were based
on Z.H.’s testimony and “[t]here was no evidence to corroborate this testimony.” That is,
Stuckman complains that there was no DNA evidence or surveillance footage proving
that he committed the crimes, and no “information concerning the vehicle used in the
crime.” He also points out that M.R. was unable to positively identify Stuckman as his
assailant.
{¶ 44} A claim for insufficiency of the evidence and denial of a motion for
acquittal are reviewed under the same standard. Whether there is sufficient evidence to
support a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). In reviewing a challenge to the sufficiency of evidence, “[t]he
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.” (Internal citations omitted.) State v. Smith, 80 Ohio
St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court
will not weigh the evidence or assess the credibility of the witnesses. State v. Walker, 55
Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).
{¶ 45} Stuckman challenges the sufficiency of the evidence supporting three
convictions: attempted aggravated murder, aggravated robbery, and felonious assault.
The trial court merged these three convictions as allied offenses of similar import under
R.C. 2941.25.
17.
{¶ 46} Stuckman was convicted of attempted aggravated murder in violation of
R.C. 2923.02(A) and 2903.01(B). An “attempted” crime occurs when a person
“purposefully or knowingly, and when purpose or knowledge is sufficient culpability for
the commission of an offense * * * engage[s] in conduct that, if successful, would
constitute or result in the offense.” R.C. 2923.02(A). The attempted “offense” here was
aggravated murder under R.C. 2903.01(B), which states that “[n]o person shall
purposefully cause the death of another * * * while committing or attempting to commit
* * * aggravated robbery * * *.”
{¶ 47} Stuckman was convicted of aggravated robbery under R.C. 2911.01(A)(1),
which states “No person, in attempting or committing a theft offense * * * shall * * *
[h]ave a deadly weapon on or about the offender’s person * * * and either display the
weapon, brandish it, indicate that the offender possesses it, or use it * * *.” A “deadly
weapon” means “any instrument, device, or thing capable of inflicting death.” R.C.
2923.11(A).
{¶ 48} Finally, Stuckman was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or attempt
to cause physical harm to another * * * by means of a deadly weapon * * *.”
{¶ 49} Viewing the evidence in a light most favorable to the prosecution, we find
that the state presented sufficient evidence that Stuckman committed these offenses on
November 24, 2016, at Walsh Park when he slashed M.R.’s neck and grabbed M.R.’s
wallet from the back pocket of his pants. Most importantly, Z.H. testified that Stuckman
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confessed these crimes to her shortly after their commission. Although Stuckman
complains that Z.H. was not a credible witness, we do not assess witness credibility when
reviewing evidence for legal sufficiency―rather, we defer to the jury’s findings in
evaluating the credibility of each witness. Moreover, we note that Z.H.’s testimony was
corroborated by additional evidence in the record. That is, Z.H.’s story was consistent
with M.R.’s first-hand testimony of how the crimes occurred, as well as the blood trail
that police followed from the lobby of the Double A motel to a picnic bench at Walsh
Park. Finally, the police recovered M.R.’s stolen Fremont Federal bank card and social
security card from the Cadillac that Stuckman shared with his ex-girlfriend C.S. There
was therefore sufficient evidence to establish each element of the attempted aggravated
murder, aggravated robbery, and felonious assault charges against Stuckman.
{¶ 50} For these reasons, we find Stuckman’s second assignment of error not well-
taken.
3. The Pre-Trial Amendment of the Indictment
{¶ 51} In his third assignment of error, Stuckman argues that the trial court erred
by granting the state’s pretrial motion to amend the indictments to include Stuckman’s
real name, Justin Harris.
{¶ 52} Under Crim.R. 7, a trial court may amend an indictment at “any time
before, during, or after a trial * * * in respect to any defect, imperfection, or omission in
form or substance * * * provided no change is made in the name or identity of the crime
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charged.” We review a trial court’s decision to amend an indictment under an abuse-of-
discretion standard. State v. Gray, 9th Dist. Summit No. 27365, 2015-Ohio-1248, ¶ 7.
{¶ 53} Shortly before the jury trial began, the court addressed a pretrial motion by
the state outside the presence of the jury. On the record, the trial judge stated that he had
just learned that the defendant’s name was actually Justin Harris and not Armis
Stuckman. The state confirmed that Armis Stuckman is apparently the defendant’s alias,
his real name is Justin Harris, and that he uses both names interchangeably. The state
then moved to amend the indictment to read Armis Stuckman, aka Justin Harris, arguing
that the defendant had been on notice of this issue since the indictments were issued, and
this amendment “simply corrects an error really promulgated by Stuckman himself.”
Stuckman’s counsel expressly acknowledged that his “real identity was Justin Harris,”
but he objected to amending the indictment “at the eleventh hour” because, he argued, the
change to the indictment “gives him the appearance of guilt.”
{¶ 54} The court granted the state’s motion to amend the indictment to read state
of Ohio versus Justin K. Harris, also known as Armis Stuckman. When granting the
motion, the court referenced R.C. 2941.56, which states:
If the accused pleads in abatement that he is not indicted by his true
name, he must plead his true name which shall be entered on the minutes of
the court. After such entry, the trial and proceedings on the indictment shall
be had against him by that name, referring also to the name by which he is
indicted, as if he had been indicted by his true name.
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{¶ 55} The court agreed with the state that it was Stuckman’s duty to bring this
issue to the court, and Stuckman’s fault that this amendment was occurring “at the
eleventh hour.” The court stated:
[T]he Defendant has laid low, has signed the bond forms that the Court put
in front of him in my presence signing his name as Armis Stuckman, never
raising an issue about his identity in this case – never, never. The
Defendant is not going to benefit by laying low in his own wrongdoing.
This is not gamesmanship. The idea of a criminal jury trial is not to get the
upper hand by playing games.
{¶ 56} We find that the trial court did not abuse its discretion when it allowed the
state to amend the indictment to include Stuckman’s real name, Justin Harris, shortly
before trial. The amendment did not add a prejudicial and unnecessary alias to the
indictment but, rather, merely corrected an undisputed misnomer: the defendant was not
indicted by his true name. It was incumbent upon Stuckman to raise this defect, which
related to the sufficiency of the indictment, prior to trial under Crim.R. 12(C). See State
v. Jones, 6th Dist. Lucas No. L-09-1181, 2009-Ohio-6498, ¶ 15. The trial court was
well-within its discretion under Crim.R. 7 when it amended the indictment before trial to
include the defendant’s real name.
{¶ 57} Moreover, although this indictment also clarified that “Armis Stuckman” is
an alias by including “aka” (i.e., “also known as”) before it, the inclusion of this alias was
not unnecessary surplusage: many witnesses testified that the defendant used the names
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“Armis Stuckman” and “Shadow” interchangeably with his real name. Thus, the
identification of the defendant by his alias, “Armis Stuckman,” in the indictment was
permissible given that evidence of the defendant’s use of this alias was relevant to the
proper identification of the accused in relation to the crimes charged.
{¶ 58} For these reasons, we find Stuckman’s third assignment of error not well-
taken.
IV. Conclusion
{¶ 59} The trial court did not abuse its discretion when it denied Stuckman’s
motion to sever case No.17CR236 from case No. 17CR331. Stuckman failed to provide
the trial court with any specific information that would have enabled it to weigh the
considerations favoring joinder against the defendant’s right to a fair trial. Regardless,
the state satisfied the joinder test given that the evidence related to the receiving-stolen-
property charge of case No. 17CR236 was simple, direct, and capable of being separated
from the evidence relating to the charges at issue in case No. 17CR331. Stuckman’s first
assignment of error is, therefore, not well-taken.
{¶ 60} Stuckman’s attempted aggravated murder, aggravated robbery, and
felonious assault convictions were supported by sufficient evidence where the state
presented evidence that Stuckman committed these offenses on November 24, 2016, at
Walsh Park when he slashed M.R.’s neck and grabbed M.R.’s wallet from the back
pocket of his pants. Stuckman’s second assignment of error is, therefore, not well-taken.
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{¶ 61} The trial court did not abuse its discretion when it granted the state’s
pretrial motion to amend the indictment to include the defendant’s real name, Justin
Harris, and alias, “Armis Stuckman.” This amendment corrected a deficiency in the
indictment and, also, added relevant information regarding the defendant’s use of an
alias. Stuckman’s third assignment of error is, therefore, not well-taken.
{¶ 62} Accordingly, we affirm the September 11, 2017 judgment of the Sandusky
County Court of Common Pleas. Stuckman is ordered to pay the costs of this appeal
under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
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