State v. Hunter , 2018 Ohio 5325 ( 2018 )

[Cite as State v. Hunter, 2018-Ohio-5325.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-081
- vs - :
MARLON J. HUNTER, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000269.
Judgment: Modified and affirmed as modified.
Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, and Michael A. Barth,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).
Gregory T. Stralka, 6509 Brecksville Road, P.O. Box 31776, Cleveland, OH 44131 (For
Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Marlon J. Hunter appeals from the judgment entry of the Lake County Court
of Common Pleas, entered on a jury verdict, sentencing him to five years in prison for
aggravated robbery, and three years on an attendant firearm specification, for a total of
eight years in prison. Mr. Hunter contends his conviction on the firearm specification is
supported by insufficient evidence, and is against the weight of the evidence. We modify,
and affirm as modified.
{¶2} Late in the afternoon of Christmas Day, 2016, two teenaged boys, M.M. and
E.H., were at the latter’s house. They decided to go visit Mr. Hunter. On arriving at his
house, M.M. and E.H. began Snapchating with two girls they knew, M.R. and G.C.
Snapchat is a social media app which allows participants to send pictures and videos to
each other. M.R. sent them a picture of one of her Christmas presents – a large amount
of money. E.H. suggested to M.M. and Mr. Hunter they should rob M.R.
{¶3} M.M. invited M.R. and G.C. to go to dinner, to which they agreed. M.M.
then contacted another teenaged boy, D.G., asking him to accompany the party. D.G.
was told about the plan to rob the girls. Shortly thereafter M.M., E.H., and Mr. Hunter got
into M.M.’s car, and went to pick up D.G. M.M. saw Mr. Hunter adjust a handgun which
was tucked into his waistband. The boys remained in contact with the girls as they drove
to pick them up in Madison, Ohio. The boys stopped at a convenience store along the
way, to pick up something to smoke.
{¶4} The girls were unacquainted with Mr. Hunter, so it was decided he should
perform the robbery. They stopped at Madison Township Park, and left Mr. Hunter at the
pavilion near the lake. D.G. saw the clip slip out from Mr. Hunter’s gun, forcing him to
reinsert it. The remaining three boys drove to the home of M.R.’s father, where the girls
were waiting. The boys suggested the party go to Madison Township Park to smoke,
before looking for a restaurant. M.M. drove, with E.H. in the front passenger seat, with
D.G., M.R., and G.C. in the rear. On arriving at the park, M.M. parked near the boat
docks, which are located near the pavilion.
{¶5} A tall, young black man, in dark clothing, came down from the pavilion, and
went to the front passenger side to the car. E.H. opened the window, and the newcomer
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(Mr. Hunter), asked for a smoke. The boys in the car obliged by letting him join in smoking
their cigarillo. After a few minutes of smoking and talking, Mr. Hunter pulled his gun from
his waistband, and pointed it at E.H. He yanked E.H.’s chain off, and demanded
everyone’s phones. Mr. Hunter then pointed the gun at the girls in the back seat.
Everyone in the party surrendered their phones, except G.C., who pretended she did not
have one. M.R. also gave Mr. Hunter her Christmas gift money, and a gift card she had
received. Mr. Hunter then told M.M. to “pull off.”
{¶6} M.M. drove the girls to the home of M.R.’s mother. Once home, the shaken
M.R. called the police. The boys drove back to the park, to pick up Mr. Hunter. M.M.,
E.H., and D.G. were given back their phones, and the boys divvied up the items stolen
from M.R.
{¶7} The girls gave statements to the police that night. M.M., E.H., and D.G.
went to the police December 26, 2016, initially maintaining they, too, were victims of the
robbery, before breaking down and telling the truth.
{¶8} January 8, 2017, the police executed a search warrant at Mr. Hunter’s
house, where they found a loaded .45 caliber handgun belong to Jason Barnett, another
occupant of the house. Mr. Hunter was questioned at the police station, and admitted his
part in the robbery, stating he was chosen to be the robber since the girls did not know
him. However, he denied having used the .45 caliber gun, maintaining he used his B.B.
gun.
{¶9} Since Mr. Hunter was 17 at the time, this case commenced in the Lake
County Court of Common Pleas, Juvenile Division, with the filing of a complaint January
18, 2017. Thereafter, the state moved to transfer the case to the general division of the
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Lake County Court of Common Pleas. Following an amenability hearing, the juvenile
court transferred the case by a judgment entry filed March 6, 2017.
{¶10} March 20, 2017, the Lake County Grand Jury returned an indictment in one
count against Mr. Hunter, for aggravated robbery, a first-degree felony in violation of R.C.
2911.01(A)(1), with a firearm specification pursuant to R.C. 2941.145. March 23, 2017,
Mr. Hunter entered a written plea of not guilty. Bond was set at $200,000.
{¶11} The matter came on for jury trial April 18, 2017. M.M., E.H., D.G., M.R. and
G.C. all testified for the state. Trial concluded April 19, 2017, and the jury returned a
verdict of guilty that day, further finding Mr. Hunter guilty under the firearm specification.
The trial court memorialized this in a judgment entry filed that day. Sentencing hearing
went forward May 26, 2017.
{¶12} June 22, 2017, Mr. Hunter timely noticed this appeal, assigning two errors.
We deal with them in reverse order. The second assignment of error reads: “The jury’s
decision finding the appellant guilty of the firearm specifications was against the manifest
weight of the evidence.”
{¶13} In State v. Bryant, 11th Dist. Trumbull No. 2015-T-0100, 2016-Ohio-4928,
¶46-50, we held:
{¶14} “This court stated in [State v.] Schlee [11th Dist. Lake No. 93-L-082 * * *,
1994 WL 738452 (Dec. 23, 1994] * * *:
{¶15} “‘“[M]anifest weight” requires a review of the weight of the evidence
presented, not whether the state has offered sufficient evidence on each element of the
offense.
{¶16} “‘“In determining whether the verdict was against the manifest weight of the
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evidence, ‘(* * *) the court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of 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. (* *
*)’” (Citations omitted.) * * *’ (Emphasis sic.)
{¶17} “A judgment of a trial court should be reversed as being against the manifest
weight of the evidence ‘“only in the exceptional case in which the evidence weighs heavily
against the conviction.”’ [State v.] Thompkins [78 Ohio St.3d 380] * * *at 387, * * *.
{¶18} “With respect to the manifest weight of the evidence, the trier of fact is in
the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d
230, * * * (1967), paragraph one of the syllabus.” (Emphasis sic.) (Parallel citations
omitted.)
{¶19} In support of the assignment of error, Mr. Hunter argues the state never
proved the gun introduced at trial as the robbery weapon, was the gun actually used in
the robbery. He points out the state’s forensic experts admitted they could not find neither
his fingerprints, nor his DNA, on the gun.
{¶20} We are respectfully unconvinced. To be convicted on a firearm specification
under R.C. 2941.145(A), the state must prove, “the offender had a firearm on or about
the offender’s person or under the offender’s control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense.” In this case, M.M., E.H., D.G., M.R., and G.C.
all testified that Mr. Hunter brandished a gun during the robbery. The jury could easily
infer the gun found at Mr. Hunter’s house was the gun used. Further, as we noted in
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Bryant, supra, at ¶35:
{¶21} “Although appellant takes issue with the fact that a handgun was never
located and tested for operability, this court has stated that ‘the recovery of a firearm used
in a criminal offense is not required to prove that a particular firearm was operable at the
time of the crime.’ State v. Johns, 11th Dist. Trumbull No.2014–T–0036, 2015–Ohio–
2455, ¶31. “Rather, the Supreme Court of Ohio has held that “it should be abundantly
clear that where 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.”’ Id., quoting Thompkins, supra, at 384 (‘a firearm penalty-
enhancement specification can be proven beyond a reasonable doubt by circumstantial
evidence. In determining whether an individual was in possession of a firearm and
whether the firearm was operable or capable of being readily rendered operable at the
time of the offense, the trier of fact may consider all relevant facts and circumstances
surrounding the crime.’) Thompkins, supra, at 385, * * *. See also State v. Clayton, 9th
Dist. Summit No. 26910, 2014–Ohio–2165, ¶13 (holding that because ‘the witnesses
testified that the defendant was holding a gun to their heads while they were being robbed
of their money and personal effects, which constitutes an implicit threat (* * *) the State
offered sufficient circumstantial evidence that the firearm was operable.’)”
{¶22} Mr. Hunter’s conviction under the firearm specification is not against the
manifest weight of the evidence. The second assignment of error lacks merit.
{¶23} The first assignment of error reads: “The jury’s decision finding the appellant
guilty of the firearm specifications was not supported by sufficient evidence.”
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{¶24} In Patterson v. Godale, 11th Dist. Lake Nos. 2014-L-034, 2014-L-042, ¶23,
we held: “A finding that a judgment is not against the manifest weight of the evidence
necessarily means the judgment is supported by sufficient evidence. State v. Arcaro,
11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32.” Consequently, Mr.
Hunter’s conviction on the firearm specification is supported by sufficient evidence.
{¶25} The first assignment of error lacks merit.
The trial court entered a no contact order between Mr. Hunter and the victims, their
families, Mr. Moore, Mr. Green, and Mr. Holly. We modify the sentence by vacating that
portion of it. See, e.g., State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, ¶32.
{¶26} The judgment of the Lake County Court of Common Pleas is modified and
affirmed as modified.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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