State v. Hunter

[Cite as State v. Hunter, 2018-Ohio-568.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28484
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER HUNTER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2016 06 1937
DECISION AND JOURNAL ENTRY
Dated: February 14, 2018
TEODOSIO, Judge.
{¶1} Appellant, Christopher Hunter, appeals from his convictions in the Summit
County Court of Common Pleas. We affirm.
I.
{¶2} On the night of May 25, 2016, Mr. Hunter was drinking his second bottle of
Hennessey and decided to go to the apartment of his ex-girlfriend (“D.C.”). Although uninvited,
he knocked on the door while carrying a bottle of Hennessey and a loaded gun on his person.
D.C.’s fiancé (“M.G.”) answered the door while only wearing a pair of boxer shorts. Mr. Hunter
wanted to talk to D.C., but M.G. said that D.C. did not want to talk to him and closed the door.
According to D.C., M.G. put on some clothes several minutes later and went outside to smoke a
cigarette. According to Mr. Hunter, M.G. came toward him with his hands in his pockets while
looking reckless and biting his lip, so he shot M.G. in the neck. M.G. fell down and then
retreated back into the apartment. Mr. Hunter followed M.G. into the apartment. Once inside
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the apartment, Mr. Hunter tried to shoot M.G. in the back, but the gun jammed, so he had to un-
jam and reload it. Mr. Hunter resumed shooting at M.G. as he retreated down the hallway and
then followed M.G. into the back bedroom to shoot him four more times, killing him. Overall,
Mr. Hunter shot M.G. a grand total of ten times.
{¶3} After a jury trial, Mr. Hunter was found not guilty of aggravated murder and
several other felonies, but guilty of murder and felonious assault with accompanying firearm
specifications. The trial court denied Mr. Hunter’s motion to merge the two convictions for
sentencing and ultimately sentenced Mr. Hunter to an aggregate total of 29 years to life in prison.
{¶4} Mr. Hunter now appeals from his convictions and raises three assignments of
error for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S REQUESTED
JURY INSTRUCTION REGARDING VOLUNTARY MANSLAUGHTER AS
AN INFERIOR DEGREE OFFENSE TO MURDER.
{¶5} In his first assignment of error, Mr. Hunter argues that the trial court erred in
denying his request for a jury instruction on voluntary manslaughter because his rage at the
crime scene was compounded by fear, and thus his intent to kill was awakened in a sudden fit of
passion. We disagree.
{¶6} “[A] trial court must fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact
finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. “[A] trial
court must instruct the jury on a lesser[-]included offense if ‘the evidence presented at trial
would reasonably support both an acquittal on the crime charged and a conviction on the lesser-
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included offense.’” State v. Lockhart, 9th Dist. Summit No. 28053, 2017-Ohio-914, ¶ 14,
quoting State v. Carter, 89 Ohio St.3d 593, 600 (2000). “In deciding whether to instruct the jury
on a lesser-included or inferior-degree offense, the trial court must view the evidence in a light
most favorable to the defendant.” State v. Meadows, 9th Dist. Summit No. 26549, 2013-Ohio-
4271, ¶ 8.
{¶7} This Court reviews a trial court’s refusal to give a requested jury instruction for
abuse of discretion. Id. at ¶ 7. “The term ‘abuse of discretion’ connotes more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion
standard, a reviewing court is precluded from simply substituting its own judgment for that of the
trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶8} Murder requires an offender to “purposely cause the death of another * * *.” R.C.
2903.02(A). Voluntary manslaughter requires an offender to knowingly cause the death of
another while “under the influence of sudden passion or in a sudden fit of rage, either of which is
brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite
the person into using deadly force * * *.” R.C. 2903.03(A). Because “its elements are * * *
contained within the indicted offense, except for one or more additional mitigating elements[,]”
voluntary manslaughter is not a lesser-included offense of murder. State v. Terrion, 9th Dist.
Summit No. 25368, 2011-Ohio-3800, ¶ 11, quoting State v. Deem, 40 Ohio St.3d 205, 209
(1988); State v. Shane, 63 Ohio St.3d 630, 632 (1992). Instead, voluntary manslaughter is an
inferior degree of murder. Terrion at ¶ 11, citing Shane at 632.
Even though voluntary manslaughter is not a lesser[-]included offense of murder,
the test for whether a judge should give a jury an instruction on voluntary
manslaughter when a defendant is charged with murder is the same test to be
applied as when an instruction on a lesser[-]included offense is sought.
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Terrion at ¶ 12, quoting Shane at 632. The instruction is warranted if the evidence presented at
trial would reasonably support both an acquittal on murder and a conviction on voluntary
manslaughter. Terrion at ¶ 12. However, an instruction on voluntary manslaughter is not
required in every murder prosecution where “some evidence” exists that an offender satisfied the
elements of voluntary manslaughter. Shane at 632. “A trial court need not give a voluntary
manslaughter instruction if the evidence shows that a defendant had sufficient time to ‘cool
down’ after being provoked.” State v. Little, 9th Dist. Lorain No. 10CA009758, 2011-Ohio-768,
¶ 27, quoting State v. Huertas, 51 Ohio St.3d 22, 32 (1990).
{¶9} “Before giving a jury instruction on voluntary manslaughter in a murder case, the
trial judge must determine whether evidence of reasonably sufficient provocation occasioned by
the victim has been presented to warrant such an instruction.” Shane at paragraph one of the
syllabus. Both objective and subjective standards are used in the analysis of provocation. Id. at
634. First, an objective standard is used in determining whether the provocation was “reasonably
sufficient to bring on sudden passion or a sudden fit of rage * * *.” Id. If evidence of reasonably
sufficient provocation does not exist, the inquiry ends and the trial court may not give an
instruction on voluntary manslaughter. Id. “Provocation, to be reasonably sufficient, must be
serious.” (Emphasis sic.) Id. at 638. The provocation must also be reasonably sufficient to
incite the offender to use deadly force. Id. at 635. If evidence of reasonably sufficient
provocation does exist, a subjective standard is then used to determine “whether this actor, in this
particular case, actually was under the influence of sudden passion or in a sudden fit of rage.”
Id. at 634. “It is only at that point that the ‘[]emotional and mental state of the defendant and the
conditions and circumstances that surrounded him at the time[]’ must be considered.” Id.,quoting Deem at paragraph five of the syllabus. “Fear alone is insufficient to demonstrate the
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kind of emotional state necessary to constitute sudden passion or fit of rage.” State v. Mack, 82
Ohio St.3d 198, 201 (1998).
{¶10} In the case sub judice, the record reflects that defense counsel requested a jury
instruction regarding voluntary manslaughter as a lesser-included offense to aggravated murder
or murder. The State opposed the instruction and the trial court denied Mr. Hunter’s request to
give the instruction to the jury. The court stated that, even when considered in a light most
favorable to Mr. Hunter, there was not enough evidence of provocation to require the instruction.
Moreover, the court stated that even if there was sufficient provocation, the fact that Mr. Hunter
took the time to un-jam the weapon and reload it “sort of strip[ped] the sudden fit of rage or
passion” and provided time in between to cool off, even if it was only for a few seconds, which
was enough to not require an instruction on voluntary manslaughter in this case. The court noted
defense counsel’s objection for the record.
{¶11} At trial, Mr. Hunter testified that he went back out to his car after M.G. closed the
apartment door on him. D.C. testified that M.G. put some clothes on several minutes later and
went outside to smoke a cigarette. Mr. Hunter testified that M.G. came outside and was “looking
reckless” and “biting his bottom lip” while coming toward Mr. Hunter with his hands in his
pockets, which scared Mr. Hunter. He admitted on cross-examination that M.G. did not draw a
weapon. When M.G. was about an arm’s length away, Mr. Hunter shot him in the neck. M.G.
fell down and then retreated toward the apartment. On cross-examination, the prosecutor asked
Mr. Hunter if he agreed that, at that moment, he had a choice to leave the scene and just let M.G.
go. Mr. Hunter replied, “Yes.”
{¶12} Mr. Hunter testified that he instead chose to follow M.G. into the apartment and
then shot him in the back because he was “still mad and scared.” According to Mr. Hunter, the
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gun jammed “[a]round the second shot * * * [i]n the house.” Mr. Hunter removed the jammed
bullet from the gun and reloaded the weapon. As M.G. staggered toward the back bedroom, Mr.
Hunter resumed shooting at him several more times. Mr. Hunter then followed M.G. into the
back bedroom and shot him four more times in the back because he was “still mad.” He initially
testified on cross-examination that he did not intend to kill M.G., but also testified that he
purposely killed M.G. by repeatedly shooting him.
{¶13} The trial court stated that it did not find enough evidence of provocation to require
a voluntary manslaughter instruction. Even assuming Mr. Hunter’s version of the events is true
and accurate, and M.G. did in fact come toward Mr. Hunter while “looking reckless” and “biting
his bottom lip” with his hands in his pockets, we agree with the trial court’s determination that
these actions were not reasonably sufficient to bring on sudden passion or a sudden fit of rage.
The evidence does not show these actions as being serious or reasonably sufficient to incite Mr.
Hunter to use deadly force, as Mr. Hunter admitted that M.G. did not draw a weapon on him.
{¶14} Even if we were to assume arguendo that M.G.’s actions constituted reasonably
sufficient provocation, we would nonetheless agree with the trial court’s determination that Mr.
Hunter was not under the influence of sudden passion or in a sudden fit of rage in this particular
matter. After being shot in the neck, M.G. retreated into the apartment while bleeding. Mr.
Hunter agreed at trial that he could have simply left the scene at that point, but he chose instead
to follow M.G. into the apartment and continue shooting him. He even took some time around
the second shot to un-jam and reload the gun, which provided him with sufficient time to “cool
down” after the alleged provocation. See Little at ¶ 27 (stating a voluntary manslaughter
instruction is not required if the evidence shows a sufficient time to “cool down” after being
provoked.). After un-jamming and reloading the gun, Mr. Hunter resumed shooting at M.G.
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down the hallway and then followed him into the back bedroom to shoot him several more times
in the back. Mr. Hunter testified repeatedly that he was scared and mad, but again, “[f]ear alone
is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion
or fit of rage.” Mack, 82 Ohio St.3d at 201.
{¶15} After a review of the record, we conclude that the trial court did not abuse its
discretion in finding that the evidence presented at trial, even when considered in a light most
favorable to Mr. Hunter, did not establish reasonably sufficient provocation to require a jury
instruction on voluntary manslaughter.
{¶16} Accordingly, Mr. Hunter’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTIONS
FOR MURDER AND FELONIOUS ASSAULT FOR SENTENCING.
{¶17} In his second assignment of error, Mr. Hunter argues that the trial court erred by
failing to merge his felonious assault and murder convictions as allied offenses of similar import
for the purposes of sentencing. We disagree.
{¶18} “This Court generally applies a de novo standard of review when reviewing a trial
court’s decision regarding the merger of convictions for the purposes of sentencing.” State v.
Harris, 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, ¶ 25, citing State v. Williams, 134
Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “When applying the de novo standard of review, this
Court gives no deference to the trial court’s legal determinations.” State v. West, 9th Dist. Lorain
No. 04CA008554, 2005-Ohio-990, ¶ 33.
{¶19} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio
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Constitution, which prohibits multiple punishments for the same offense.” State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶20} The Supreme Court of Ohio clarified the standard for an analysis of allied
offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. “In determining
whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts
must evaluate three separate factors—the conduct, the animus, and the import.” Id. at paragraph
one of the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. “Animus” has been
defined as “purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126,
131 (1979). Multiple offenses are of dissimilar import “when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from each offense is
separate and identifiable.” Ruff at ¶ 26. Therefore, “courts must ask three questions when [a]
defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they committed with separate
animus or motivation?” Ruff at ¶ 31. “An affirmative answer to any of the above will permit
separate convictions.” Id. “It is the defendant’s burden to establish his or her entitlement to the
protections of Section 2941.25.” State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-
Ohio-2888, ¶ 8. “‘To do so, the defendant must show that the State relied upon the same conduct
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to support both offenses.’” State v. Fedrick, 9th Dist. Summit No. 28120, 2017-Ohio-2635, ¶ 18,
quoting State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-4972, ¶ 19. See also Logan at
128.
{¶21} In the case sub judice, the trial court heard arguments from the parties as to the
merger issue. The court ultimately determined that the felonious assault and murder convictions
should not merge for sentencing purposes and found as follows:
In this case, the [c]ourt finds that there was a sufficient passage of time from the
initial attack that - - and the intention of the defendant to continue on with the
attack interrupted by different events, both the fleeing of the defendant (sic) and
the jamming of the gun, such that enough time passed that there was a separate
animus pertinent to this case such that a felonious assault charge is not required to
merge under all the statements of law as the [c]ourt has interpreted them.
{¶22} This Court addressed a factually similar situation in State v. Dembie, 2015-Ohio-
2888. In Dembie, Mr. Dembie struggled with the victim as she attempted to escape out of a
second-story, bathroom window. Id. at ¶ 9. While the victim was outside of the window,
Dembie stabbed her in the abdomen and she fell to the ground below. Id. Dembie proceeded
down the steps and outside to where the victim lay on the ground. Id. He then stabbed her
repeatedly and cut her throat, killing her. Id. On appeal, this Court agreed with the trial court’s
determination that the convictions for felonious assault and murder were not allied offenses, as
the victim’s fall from the bathroom window “interrupted” the attack. Id. at ¶ 11. Although
Dembie went downstairs and resumed attacking the victim moments later, the fall created a
“distinct line of demarcation” between the felonious assault at the window and the murder on the
ground. Id. Thus, we concluded that the felonious assault at the window carried a separate
animus from the murder on the ground. Id.
{¶23} Mr. Hunter bears the burden of establishing his entitlement to a merger of these
convictions for sentencing. See id. at ¶ 8. He argues that his testimony on cross-examination
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that he purposely killed M.G. by repeatedly shooting him established a single animus for both
the felonious assault and the murder, requiring merger of the two convictions for purposes of
sentencing. Mr. Hunter attempts to distinguish the Dembie case from his own by emphasizing
that there was no admission of intent to kill in Dembie and the trial court had to make its decision
based upon inferences from the circumstances. However, Mr. Hunter’s testimony during cross-
examination was rather inconsistent and in fact contradictory regarding his intent while
committing these crimes:
Q: And your intent was to kill him?
A: No, it wasn’t.
Q: When you were shooting him eight, nine times, that wasn’t your intent?
A: No.
Q: Okay. When you shot him in the neck, shot him in the back, that wasn’t your
intent, to kill him?
A: Yes.
Q: It was your intent to kill him, right?
A: Yes.
Q: That was your purpose when you pulled out the gun and shot him over and
over again. Your intent was to end the life of [M.G.], right?
A: Yes.
Thus, Mr. Hunter surprisingly testified both that he did and did not intend to kill M.G. At the
sentencing hearing, the trial court acknowledged Mr. Hunter’s admission of his intent to kill and
stated: “[T]hat’s a factor that I’m considering as I’m considering whether or not felonious assault
and murder merge.”
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{¶24} After reviewing the record, we agree with the trial court’s determination that Mr.
Hunter’s attack on M.G. was interrupted by certain events over a sufficient passage of time,
particularly the fleeing of the victim into the apartment and the jamming and reloading of the
gun. We conclude that these interrupting events created a “distinct line of demarcation” between
the felonious assault that was completed outside of the apartment and the subsequent murder that
was completed inside of the apartment. See Dembie at ¶ 11; see also State v. Wilson, 2d Dist.
Montgomery No. 22120, 2008-Ohio-4130, ¶ 43-44 (concluding that two felonious assaults and a
murder were committed separately when Wilson struggled with and shot the victim, then shot
him again in the back as the victim fled, then stood over him and shot him multiple times in the
head); State v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 47 (finding separate
and distinct offenses for felonious assault and attempted murder where Hines shot the victim in
the stomach, attempted to continue shooting him but “the gun kept clicking and did not go off,”
and then followed him outside of the building while still attempting to shoot him); State v.
Andrews, 8th Dist. Cuyahoga No. 93104, 2010-Ohio-3864, ¶ 46-48 (finding a “clear
demarcation” between two felonious assaults, and thus no merger, when the initial assault
occurred inside the house, but the victim fled outside and Andrews chased him and assaulted him
again); compare State v. Craig, 4th Dist. Athens No. 15CA22, 2017-Ohio-4342, ¶ 26-28
(reversing the trial court’s decision not to merge felonious assault and attempted murder because
the evidence did not establish “a break in the continuum of events” or “a line of distinction”
showing separate and distinct crimes).
{¶25} Accordingly, we conclude that the trial court did not err in determining that Mr.
Hunter’s convictions should not merge as allied offenses of similar import for sentencing
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purposes because the evidence presented at trial established that Mr. Hunter committed the initial
felonious assault separately and with a separate animus from the subsequent murder.
{¶26} Mr. Hunter’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶27} In his third assignment of error, Mr. Hunter argues that his conviction for
felonious assault was against the manifest weight of the evidence. We disagree.
{¶28} This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the
basis that it was against the manifest weight of the evidence, an appellate court sits as a
‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary
power “should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶29} Mr. Hunter argues that his conviction for felonious assault is a manifest
miscarriage of justice because he admitted his only animus was to kill M.G. and he did so in one
continuous course of conduct.
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{¶30} Mr. Hunter was convicted of felonious assault under R.C. 2903.11(A)(2), which
states: “No person shall knowingly * * * [c]ause or attempt to cause physical harm to another * *
* by means of a deadly weapon * * *.” “A person acts knowingly, regardless of purpose, when
the person is aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). Physical harm to a person means “any injury, illness,
or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). A
deadly weapon is “any instrument, device, or thing capable of inflicting death, and designed or
specially adapted for use as a weapon, or possessed, carried, or used as a weapon.” R.C.
2923.11(A).
{¶31} At trial, Mr. Hunter testified that he brought a loaded gun with him to D.C.’s
apartment. He testified that he was approached by M.G. outside of the apartment and then
intentionally shot M.G. in the neck. He presented inconsistent testimony when he testified both
that he did and did not intend to kill M.G. He also testified that he followed M.G. into the
apartment and the gun jammed. Mr. Hunter had to un-jam and reload the gun before shooting
M.G. several more times.
{¶32} “‘[T]he weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-
4683, ¶ 28, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
“[T]he jury is free to believe or disbelieve any, or all, of the testimony from each witness.”
Haydon at ¶ 28. “[A]s the trier of fact, ‘the [jury] is best able to view witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the credibility
of the proffered testimony.’” State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30,
quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th Dist.1993).
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{¶33} Based on the evidence presented at trial, the jury was free to believe that Mr.
Hunter knowingly caused physical harm to M.G. by shooting him in the neck outside of the
apartment. We conclude that Mr. Hunter’s argument that his felonious assault conviction is
against the manifest weight of the evidence is without merit. This is also not an exceptional case
where the evidence presented weighs heavily in favor of the appellant and against conviction.
See Thompkins at 387.
{¶34} Mr. Hunter’s third assignment of error is overruled.
III.
{¶35} Mr. Hunter’s first, second, and third assignments of error are overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.