FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 15CR092104
J. DARLING, Attorney at Law, for Appellant.
P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL Presiding Judge.
Defendant-Appellant, Marcel Tolliver, appeals his convictions
for felonious assault from the Lorain County Court of Common
Pleas. We affirm.
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.
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
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.
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
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.
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.
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 ...