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State v. Parker

Court of Appeals of Ohio, Seventh District, Mahoning

June 16, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TERRANCE W. PARKER DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 548

          For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera.

          For Defendant-Appellant Attorney Edward Czopur.

          JUDGES: Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Carol Ann Robb.

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Terrence W. Parker, appeals the judgment of the Mahoning County Court of Common Pleas convicting him of intimidation of a witness, menacing by stalking, disrupting public services, and two robbery counts, and sentencing him accordingly.

         {¶2} On appeal, Parker asserts his robbery and intimidation convictions are not supported by sufficient evidence or are against the manifest weight of the evidence. He additionally argues the trial court committed plain error for failing to merge several of his convictions, or alternatively that trial counsel was ineffective for failing to argue merger. Finally, he asserts the trial court abused its discretion by denying his motion to sever the menacing by stalking count from the other counts. For the following reasons, Parker's assignments of error are meritless and the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶3} During the early morning of May 4, 2015, Parker came uninvited to the apartment of Melinda Gregory, a young woman who had recently ended a relationship with him. This occurred after she sent him several text messages asking him to leave her alone. Gregory was home with her roommate and a friend at the time. Among other things, it was alleged that Parker robbed Gregory at knifepoint, slashed a tire on Gregory's vehicle, threatened her friends with a knife, punched her in the face, and destroyed her cell phone after she said she would call police. After the incident, it was alleged that Parker threatened one of her friends who was there that night.

         {¶4} As a result, Parker was ultimately indicted on the following nine counts: two counts of felonious assault, both pursuant to R.C. 2903.11(A)(2)(D), second-degree felonies; aggravated robbery, R.C. 2911.01(A)(1)(C), a first-degree felony; two counts of robbery, one pursuant to R.C. 2911.02(A)(1)(B), and the other pursuant to R.C. 2911.02(A)(2)(B), both second-degree felonies; two counts of intimidation, one pursuant to R.C. 2921.04(B)(1)(D) (victim), and the other pursuant to R.C. 2921.04(B)(2)(D) (witness), both third-degree felonies; menacing by stalking, R.C. 2903.211(A)(1)(B)(2)(e), a fourth-degree felony; and disrupting public services, R.C. 2909.04(A)(1)(C), a fourth-degree felony. Parker pled not guilty and counsel was appointed.

         {¶5} The case proceeded to a jury trial. Before voir dire commenced, the State made an oral motion to amend the title of the crime from intimidation of a victim, to intimidation of a witness, noting there was no error in the subsection specified. The trial court sustained the motion.

         {¶6} Defense counsel made an oral motion to sever the menacing by stalking count from the remaining counts. He noted that crime has an element relating to the prior propensities of the defendant, which could permit the State to introduce evidence of Parker's prior criminal record and possibly prejudice the jury with regard to the other counts. The trial court overruled the motion.

         {¶7} The following pertinent evidence was adduced at trial. Melinda Gregory testified that in May 2015 she was a bar manager at Tiffany's Dolls; she met Parker while she was employed there; and the two had been romantically involved since November 2014.

         {¶8} On May 3, 2015, Gregory and Parker exchanged several text messages in which Gregory ended their relationship, and told Parker to stay away from where she worked and lived. Gregory stated she repeatedly told Parker to leave her alone through the text messages. Gregory said she ended their relationship because women associated with Parker had been harassing her. On cross-examination, she read several other texts she sent to him about his alleged relationships with other women and conceded she was hurt and upset over his infidelity and dishonesty.

         {¶9} Later that evening, Gregory was at her apartment with her roommate Kay Lee Izenour and friend Tracey Smelley. Around 3:40 a.m., Gregory heard a light tapping outside her bedroom window. Gregory crawled on the floor and peaked through the curtains and saw Parker standing outside her bedroom window. Gregory admitted on cross-examination that in the past when Parker knew she was sleeping and wanted to wake her up to tell her he was there; he would communicate this by tapping on her bedroom window.

         {¶10} A few minutes later, Gregory heard knocking at her front door, but refused to answer it. She then heard louder tapping on her bedroom window. Parker then proceeded to knock on the front door again: "he kept beating harder and harder on the door. And he was yelling, 'Open the door. Open the door.'" Gregory, Izenour, and Smelley all hid in the spare bedroom.

         {¶11} Gregory stated she was scared because Parker told her he was previously incarcerated in a maximum security prison for nine years for felonious assault. He also told her about other violent things he had done in the past. Gregory stated that as she hid inside her apartment: "I was just really in fear. I just really didn't know what to expect from him * * *." She said she had never personally seen him become violent in the past. She said Izenour and Smelley also appeared terrified.

         {¶12} After about 20-30 minutes, Parker stopped knocking. Gregory believed he had left the premises because she did not see him or his truck outside. Gregory and Izenour then went outside to ensure that Parker was gone-they looked for him in the hallways and outside, before getting into Gregory's vehicle. Smelley remained inside. Gregory then phoned Smelley and told him to come outside because Parker had left.

         {¶13} As Gregory was backing her vehicle up, Parker appeared suddenly and started beating on her vehicle's window "with a Michael Myers knife in his hand" Parker was screaming for her to put the window down. Gregory was scared and refused to comply, she thought he was going to kill her.

         {¶14} Parker then stabbed the driver's side tire of Gregory's vehicle, causing it to go flat and disabling the vehicle. Parker ran back inside Gregory's apartment building towards Smelley. Izenour followed Parker inside to try to "diffuse the situation." Gregory remained outside. Gregory's testimony about the incident up to this point was corroborated by Izenour's.

         {¶15} Izenour stated that when she followed Parker inside the building, she observed Parker confronting Smelley in the building's common hallway. Parker pointed a knife at Smelley's chest; cornered "him up against the wall in the hallway of the apartment[, ]" and demanded that Smelley empty his pockets. Izenour stated that she spoke to Parker and attempted to diffuse the situation; Parker eventually ran back outside.

         {¶16} According to Gregory, Smelley and Izenour also came back outside, as Parker began yelling at Gregory, who was now standing outside her vehicle looking at the damage to her tire. Parker still had the knife in his hand during this argument; he was accusing Gregory of a sexual relationship with Smelley, which she strongly denied. Gregory said she was terrified.

         {¶17} When Gregory threatened to call the police, Parker, while still holding the knife, punched Gregory in the face. Gregory then punched him back, which caused Parker to drop the knife and Gregory to drop her cell phone. Izenour began screaming, thinking that Parker had stabbed Gregory since the hand he used to punch her was the same hand holding the knife. Izenour attempted to slide the knife away from Parker once it was on the ground but her shoe came off during the attempt. Parker regained possession of the knife. Gregory pushed Izenour out of the way while Parker attempted to stab Izenour. Gregory stated that she believed Parker would have been successful in stabbing Izenour had she not pushed her out of the way. At this point, Smelley was standing behind Gregory but not intervening in the situation.

         {¶18} Gregory then tried to get her cell phone to call 911, but Parker grabbed the phone from her. He then smashed it several times on the ground until it broke; cash that Gregory had in her phone case fell out in the process. Parker picked up the money and fled the scene; he was subsequently apprehended in West Virginia by Boardman Police Officer Glenn Riddle who is assigned to the U.S. Marshal's fugitive task force. Izenour's testimony about what occurred in the parking lot this second time also corroborated Gregory's testimony.

         {¶19} Around 4:13 a.m., Ambrosia Eddinger, Gregory's neighbor, testified she was awakened by an argument outside in the parking lot. Eddinger stated she heard Gregory screaming, and observed Parker attempting to get Gregory's cell phone. Eddinger observed Parker throw Gregory's phone to the ground several times until it broke. Eddinger saw Izenour standing next to Gregory's Jeep and Smelley off to the right of the parking lot as this was happening. She heard Gregory yelling for someone to call the police, so Eddinger did. When police responded to the scene that night, Gregory and Izenour told them what happened but were afraid to give written statements.

         {¶20} Police Officer Nicholas Newland was one of the responding officers, arriving at 4:28 a.m. Gregory identified Parker as the suspect and told Officer Newland that she had been assaulted and Parker had slashed her tire. Officer Newland stated that everyone was upset and hysterical. Smelley told Officer Newland that Parker held a knife to him and told him to empty his pockets, and that as a result he gave Parker his cell phone.

         {¶21} On 8:36 p.m. that same day, Gregory said she sent Parker a text from a new cell phone confronting him about his conduct. She stated: "I hope you are happy hitting me, breaking my phone and slicing my tire and trying to kill me with a knife. * * *You did all of that for what? I should have really listened to what everyone said about you. You really need some help. Wish you the best. Please stay away from me. Of all people, I never thought you would do something like that."

         {¶22} Parker responded via text stating: "Really u know I never hit u silly tell your dude tracy [Smelley] he better not look for me cause one word I here anyone after Mr I know his bm n Campbell 280 his address." Detective-Patrolman Glenn Patton spoke with Gregory on May 6, 2015, and obtained a screen shot from Gregory's cell phone that captured this text message, which was admitted into evidence. Gregory testified she understood the abbreviation "bm" to refer to Smelley's "baby mama, " and took it to be a threat to Smelley. Gregory said she told Smelley about the threat because she "was scared for him and his kids."

         {¶23} Det. Patton said his comparison of the cell phone company records for Parker's phone to the list of text messages from the phone that were provided by Ohio Bureau of Criminal Investigation revealed that the text message from Parker threatening Smelley had been deleted from Parker's phone.

         {¶24} Det. Patton said during the course of his investigation, Gregory told him she was fearful of Parker due to Parker's criminal history, which Parker had relayed to her. Over objection, a certified copy of the judgment entry for Parker's prior felonious assault conviction was admitted into evidence. Det. Patton also corroborated that Gregory's phone was broken and her tire slashed. Later, Det. Patton also listened to a number of jail-house phone calls Parker made. He said Parker admitted to breaking Gregory's phone.

         {¶25} Gregory said she continued to text Parker for days after the incident. She told him she was no longer in Ohio, in an attempt to get him to leave her alone. She also began parking her car at the police station, wearing a wig as a disguise, and getting a ride to work to feel safer. About 10 days after the incident, on May 15, 2015, Gregory ...


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