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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
MERLIN T. JOHNSON, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622972-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Maxwell Martin and Lindsay Raskin, Assistant Prosecuting Attorneys, for appellee.

          Paul W. Flowers Co., L.P.A., Louis E. Grube, for appellant.



         {¶ 1} Merlin T. Johnson ("Johnson") appeals from his convictions for aggravated murder, aggravated robbery, and other offenses. He assigns the following errors for our review:

I. The trial court erred by failing to grant the motion for judgment of acquittal because the state of Ohio elicited insufficient evidence to sustain a guilty verdict.
II. The trial court's verdict is against the manifest weight of the evidence.
III. The trial court committed plain error by failing to merge all convictions at sentencing.
IV. [Johnson's] counsel was ineffective by stipulating that only counts one and two were allied offenses and by failing to argue that [Johnson's] convictions for complicity should have merged.

         {¶ 2} Having reviewed the record and pertinent law, we affirm Johnson's convictions, but we conclude that Johnson's conviction for felonious assault must merge with his conviction for aggravated murder. We reverse this portion of the sentence and remand for resentencing, solely as to these offenses after the state elects upon which count to proceed. The apposite facts follow.

         {¶ 3} In November 2017, Johnson, Eric Wilson ("Wilson"), and Latifah Stewart ("Stewart") were indicted in a nine-count indictment in connection with the shooting death of Jonathan Singletary. As is relevant, Johnson was charged with aggravated murder, murder, deadly weapon, felonious assault, aggravated robbery, discharging a firearm near prohibited premises, tampering with evidence, and having a weapon while under disability. The indictment also included various specifications including one-year, three-year, and 54-month firearm specifications stemming from prior convictions for robbery with one-year firearm specifications (one of which involved Wilson). The case proceeded to a bench trial on April 30, 2018.

         {¶ 4} Isis Dalton ("Dalton") testified that in 2017, she was living with Johnson, Wilson, and Stewart. Johnson did not have a car or cell phone. He would generally drive her to her job at Superior Academy, then use her car throughout the day. On October 25, 2017, Johnson picked Dalton up after work around 7:00 p.m. with Wilson and Stewart in the car, and the group returned to Dalton's apartment. The group ordered pizza, and around 8:00 p.m., Johnson borrowed Dalton's car and phone before leaving with Wilson to buy marijuana. Johnson returned without Wilson after midnight. He woke Dalton and Stewart and instructed them to falsely tell anyone asking about his whereabouts that he had been there with them all evening. According to Dalton, Johnson stated that he and Wilson were "going to get some weed, and I guess that [Wilson] decided to rob the guy, but the guy had a gun, so [Wilson] shot the guy and ran." Johnson told Dalton that he used her phone to set up the drug purchase then "tossed" it after the shooting. He instructed Dalton to falsely state that she lost the phone at Talica Green's ("Green") house on a street near the shooting.

         {¶ 5} The next morning, Dalton's sister told her that the police were at their mother's house and wanted to talk to Dalton about a murder. Dalton testified that she did not want to include Green in the false statement to police so she decided to tell the investigating officers that she lost her phone at a store. Dalton decided to cooperate with police after they placed her in a holding cell. However, she testified that she provided the police with a truthful statement. On cross-examination, Dalton stated that she never knew Johnson to have a weapon.

         {¶ 6} Green testified that she works with Dalton at Superior Academy, and they are best friends. She stated that Johnson picked Dalton up after work on October 25, 2017. Later that night, Green telephoned Dalton about her evaluation for her child development certification that was to take place the next day. Dalton did not appear for work that day, however, and did not answer her phone. Dalton's mother called Green's phone several times, but did not answer when Green called back.

         {¶ 7} Green further testified that Johnson called her and asked to meet. He was jittery and gave her "a rundown of a story - if anybody asks you." Johnson directed Green to falsely say that she, Dalton, Johnson, Wilson, and Stewart left Superior Academy at 7:40 p.m. on October 25, 2017, and went to Dalton's house. Then they "were smoking weed and * * * drinking. After that, [they] went and got pizza, * * * went to the gas station [and] back to [Dalton's] house." Later that night, Johnson called Green and asked if she had spoken with Dalton yet. Green indicated that she had not, but she conveyed Dalton's mother's instructions that Johnson returned Dalton's car. By the time Green met up with Johnson later to obtain the vehicle, she had become suspicious and asked him if he had killed or robbed someone. He responded that she would have to ask Dalton about that.

         {¶ 8} The police contacted Green after obtaining her phone number from Dalton's phone. She stated that she was not initially truthful during her interview with the police, but decided to tell the truth about her discussions with Johnson after learning that a homicide had occurred.

         {¶ 9} East Cleveland Police Officers John Hartman ("Officer Hartman") and John Portis ("Officer Portis") testified that they responded to a call regarding a male slumped behind the steering wheel of a vehicle at Manhattan and Orinoco Avenues. The vehicle was still in gear and the engine was running. The front driver's side window was rolled down. An unresponsive male, later identified as Singletary, was in the driver's seat and appeared to have been shot in the chest. The officers called an ambulance for the male and set up a perimeter around the vehicle. They observed a bullet hole in the driver's side door, and a grocery store bag containing marijuana and a loaded black .40 caliber Ruger firearm on the floor of the vehicle. One street over, the officers found a spent shell casing from a 9 mm weapon, a live round from a .40 mm weapon and a cell phone. Two more shell casings were also found nearby.

         {¶ 10} East Cleveland Police Detective Kenneth Lundy ("Det. Lundy") testified that he obtained records from Singletary's phone and learned that he received a call from Dalton's phone at 12:02 a.m., on October 26, 2017, and another about a minute later. Two minutes after that, Singletary called Dalton's phone, and he called it again about a minute later. At 12:08 a.m., Dalton's phone called Singletary two more times with the final call lasting for about six minutes. The call for assistance came in at 12:15 a.m.

         {¶ 11} Det. Lundy interviewed Johnson twice. During the first recorded interview, Johnson stated that he was at Dalton's apartment with Wilson and Stewart on the evening of the shooting. At around 11:00 p.m., he and Wilson drove to a location off Euclid to meet two other women, but the women were not home. They drove to "DJ's house" in East Cleveland. After that, Wilson left alone in Dalton's car and with Dalton's phone. Johnson did not provide a last name or phone number for DJ. Johnson stated that Wilson returned with marijuana and cigars. Later, Wilson asked to use the car and phone for a second time to purchase more marijuana. According to Johnson's statement, Wilson was sweating profusely when he returned for the second time, and told Johnson that men shot at him during the drug deal so they had to leave the area. They drove back to Dalton's apartment, and Johnson told Dalton he lost her phone. He denied seeing Wilson with a gun that day.

         {¶ 12} Later during this statement, Johnson indicated that after attempting to meet the two women, he drove to his sister's house. On the way, he learned that a man had been shot. Johnson also explained that as Wilson was about to rob the drug dealer, "two men came out of the cut" with guns and began firing. The drug dealer was armed too, and Wilson shot at the dealer as he fled. Wilson dropped the phone and returned to Dalton's house.

         {¶ 13} During a second statement, Johnson maintained that after he and Wilson went to his sister's house, Wilson left alone to meet the drug dealer. Johnson stayed behind, but he heard gunshots and ran outside. Wilson said someone shot at him and told Johnson that they had to leave the area. Johnson's sister said they could not stay there. At that point, Wilson left alone.

         {¶ 14} Johnson eventually told Det. Lundy that he and Wilson met Singletary earlier in the day at a gas station in East Cleveland. They bought marijuana from him and exchanged phone numbers. Later that night, they drove to Johnson's sister's house and called Singletary again about buying more marijuana. Johnson admitted that he and Wilson left Johnson's sister's house together to meet up with Singletary who was nearby around midnight. Johnson exited his sister's house and was on the sidewalk, while Wilson walked to Singletary's location. Johnson stated that he heard a gunshot, and a flash seemed to come from inside Singletary's car. He saw Wilson turn around and shoot back at Singletary, then he dropped Dalton's phone. Johnson and Wilson were together the following day, but Johnson fled on foot when Wilson was arrested. Johnson denied telling Dalton or Green to lie about his whereabouts.

         {¶ 15} Deputy Medical Examiner Dr. Erica Armstrong testified that Singletary died from a gunshot wound to the chest that perforated his intestines and spleen. The wound had stippling but no fouling as is indicative of ...

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