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State v. Tolliver

Court of Appeals of Ohio, Ninth District, Lorain

June 12, 2017

STATE OF OHIO Appellee
v.
MARCEL A. TOLLIVER Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 15CR092104

          BRIAN J. DARLING, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL Presiding Judge.

         {¶1} Defendant-Appellant, Marcel Tolliver, appeals his convictions for felonious assault from the Lorain County Court of Common Pleas. We affirm.

         I.

         {¶2} The facts underlying this felonious-assault appeal are heavily disputed. What is not disputed, however, is the fact that Mr. Tolliver and the victim were once friends, and that they got into a physical altercation at Mr. Tolliver's mother's house, which resulted in the victim sustaining a serious injury to his head.

         {¶3} According to Mr. Tolliver, the victim came to Mr. Tolliver's mother's house to fight a third party. Upon arriving, the victim took off his jacket and backpack, and placed them inside the house. The victim then went outside and exchanged heated words with the third party, but the exchange did not escalate into a physical fight. Upset that the victim had caused a commotion outside of his mother's house, Mr. Tolliver told the victim to leave, called him a name, and turned to go inside the house. The victim then "rushe[d]" Mr. Tolliver from behind. This prompted Mr. Tolliver - who was using crutches at the time as a result of a workplace injury - to strike the victim with one of his crutches. The victim then ran from Mr. Tolliver's house without retrieving his jacket or backpack.

         {¶4} According to the victim, he went to Mr. Tolliver's mother's house to repay Mr. Tolliver for bond money that Mr. Tolliver had paid for an unrelated matter. Upon arriving, Mr. Tolliver - who was not using crutches at the time - told the victim that he had to fight the third party. Mr. Tolliver then pulled a gun from his waistband, and the third party ran from the house. At this point, Mr. Tolliver told the victim that he was taking his backpack, which contained hundreds of dollars. A struggle ensued, and Mr. Tolliver struck the victim on the head with the gun multiple times, causing a "hole" in the victim's head. The victim then ran from the house, and a friend drove him to his mother's house. Upon arriving, he told his mother that he had been robbed, and she called the police. Shortly thereafter, an ambulance arrived and transported the victim to the hospital.

         {¶5} Although the victim initially gave the police officers a vague description of where Mr. Tolliver lived, he ultimately provided them with more detailed information. The police officers went to the house, and observed what appeared to be droplets of blood on the front porch. Mr. Tolliver's mother answered the door, but refused to consent to a search of her house. She did, however, turn over the victim's jacket and backpack, which contained all of the victim's money. The police officers returned those items to the victim.

         {¶6} A grand jury indicted Mr. Tolliver on the following four counts: (1) aggravated robbery in violation of Revised Code Section 2911.01(A)(1); (2) aggravated robbery in violation of Section 2911.01(A)(3); (3) felonious assault in violation of Section 2903.11(A)(1); and (4) felonious assault in violation of Section 2903.11(A)(2). Each count also contained accompanying firearm and repeat-violent-offender specifications. Mr. Tolliver pleaded not guilty, and the case proceeded to a bench trial.

         {¶7} The trial court ultimately found Mr. Tolliver not guilty of the aggravated-robbery counts, and guilty of the felonious-assault counts, along with the accompanying specifications. Prior to sentencing, Mr. Tolliver moved for a new trial on the basis of newly discovered evidence. The newly discovered evidence, in part, was a YouTube video that the victim posted prior to trial, but that Mr. Tolliver did not discover until after trial. According to Mr. Tolliver, the video showed the victim rapping about the incident, but providing a different version of the events than what he testified to at trial. The trial court denied Mr. Tolliver's motion, finding that the evidence: (1) was available prior to trial; (2) at best, impeached the victim; and (3) was unclear as to whether it even pertained to the underlying incident. Having denied Mr. Tolliver's motion, the trial court proceeded to sentencing.

         {¶8} The trial court merged the two felonious-assault convictions, and the State elected to proceed with sentencing on Count Three (i.e., the violation of Section 2903.11(A)(1)). The trial court sentenced Mr. Tolliver to two years of incarceration for the felonious-assault count, and three years for the accompanying firearm specification. The trial court ordered those sentences to run consecutively, and did not issue an additional ...


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