Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
W. Flowers Co., L.P.A., Louis E. Grube, for appellant.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
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
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 ...