[Cite as State v. King , 2021-Ohio-1113.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. TODD ANTHONY KING Defendant-Appellant : : : : : : : : : : Appellate Case No. 28807

Trial Court Case No. 2019-CR-477 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 2nd day of April, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 00844 70, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee MICHAEL MILLS, Atty. Reg. No. 0092133, 371 West First Street, 2 nd Floor, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J.-2-

{¶ 1} Todd Anthony King appeals from his conviction on charges of fel onious assault (five counts), evidence tampering, inducing a panic, ch ild endangering (two counts), having a weapon while under disability, and a firearm specification. {¶ 2} King advances three assignments of error. First, he contends th e trial court erred in finding him competent to stand trial without conductin g an evidentiary hearing. Second, he alleges ineffective assistance of counsel based on h is attorney’s failure to request an evidentiary hearing on the issue of his competence. Third, he claims his convictions for all firearm-related offenses were against the m anifest weight of the

evidence. {¶ 3} The present appeal stems from King’s role in a standoff with po lice following a 911 call from his home reporting a domestic disturbance. Duri ng the roughly 12-hour incident, King’s girlfriend, Demjanjuk Harriel, informed a 911 dispatcher that he was actively loading a handgun and wanted to engage in a shootout w ith police. When officers arrived at the scene, Harriel went outside and told them King w as armed and intoxicated and that her two young children remained inside with him. A nei ghbor, Denise Russell, also spoke with officers. She indicated that she had talked to King on the phone prior to their arrival. Russell reported that King wanted to die in a “M exican standoff” with police, that he was potentially intoxicated, and that he was armed. Ove r the hours that followed, King appeared in the doorway and on the porch of his home and s poke to officers but refused to leave the premises. Around 10:30 p.m., he was observ ed with what appeared to be a black AR-15 rifle in his hand. When King pointed it in the direction of officers outside, they fired their own weapons at him. The officers repo rted that King then returned-3- fire as evidenced by a visible muzzle flash and the sound of a gunshot from inside the home. Throughout the night King was observed near a makeshift b arricade. Sometimes he was seen holding a young child. After hours of negotiations, King walked out of the

home and was arrested. {¶ 4} Outside of King’s home, police found two spent nine-millimeter shell casings. They also found several .300 caliber shell casings tha t has been fired by SWAT team members. Inside the home, police found assorted rounds of live ammunition that included nine-millimeter bullets. Under a high chair in the liv ing room, they found a ninemillimeter shell casing that had been fired from the same gun t hat had discharged the two nine-millimeter shell casings found outside. A spent nine-milli meter bullet also was removed from King’s living-room wall near the front door. A fir earms expert could not

determine whether the bullet came from one of the nine-millimet er shell casings that had

been recovered. Based on the location of the bullet strike in t he wall, however, police officers would have been positioned in the direction that the s hot was fired. Police found a realistic-looking black air rifle on the living room floor af ter the shooting. No operable firearms were found inside the home. Following King’s arrest, H arriel visited him in jail

and asked what h e had do ne with the ha ndgun she had seen. King responded that a

friend had it. {¶ 5} Based on the evidence presented, the trial court found King gui lty of having a weapon while under disability. A jury found him guilty of the other offenses set forth above. After merging multiple firearm specifications, the trial court imposed an aggregate sentence of 28 years in prison. This appeal followed. {¶ 6} In his first assignment of error, King contends the trial court erred in failing to-4- conduct a competency hearing after he raised the issue in a pre trial motion. King cites R.C. 2945.37(B), which provides that the trial court “shall hol d a hearing” if a defendant’s competence to stand trial is raised as an issue. King argues th at the trial court violated this mandate by simply admitting two competency evaluations int o the record and summarily finding him competent to stand trial. King asserts th at the trial court was required to hold a “full” hearing and to inquire from defense c ounsel and expert witnesses about whether he was able to participate in his own defense. {¶ 7} Upon review, we find King’s argument to be unpersuasive. After King raised his competence as an issue before trial, he was evaluated by tw o experts. Both of the experts submitted written reports finding King competent to sta nd trial. King subsequently appeared in court with counsel. The prosecutor also was present . At that time, both parties stipulated to the admission of the two competency repor ts. They also stipulated that if the examiners were called to testify at a hearing the t estimony would be consistent with their reports. (Tr. 17-18.) No other evidence was presente d. Based on the content of the stipulated reports, the trial court declared King competent to stand trial. ( Id . at 18.) {¶ 8} Although no in-person witnesses testified in this case, the evi dence at a competency hearing may consist of one or more stipulated writte n evaluation reports. See R.C. 2945.37(E) (recognizing that “[a] written report of the ev aluation of the defendant may be admitted into evidence at the hearing by stipulation”). Here King effectively waived a “full” hearing with in-person witnesses by stipulating to the contents of the evaluation report and by stipulating that the examiners would testify cons istent with their reports if

called as witnesses. State v. Allen , 1st Dist. Hamilton No. C-190053, 2020-Ohio-4444, ¶17 (“R.C. 2945.37(E) provides for submitting the competency re port as evidence by-5- stipulation. A defendant may waive his right to a competency he aring by stipulating to the competency report.”); State v. O'Neill, 7th Dist. Mahoning No. 03 MA 188, 2004-Ohio6805, ¶ 21 (“Where the parties stipulate to the contents of the competency reports which opine that the defendant is competent, the parties stipulate to competency and waive the competency hearing.”); see also In re A.D ., 2d Dist. Montgomery No. 21850, 2008-Ohio750, ¶ 20 (reasoning that a juvenile court could dispense with a competency hearing where the defendant stipulated to the contents of an expert rep ort finding him competent to stand trial). {¶ 9} Here the parties stipulated to the contents of two evaluation r eports finding King competent to stand trial in lieu of proceeding with a full er hearing at which the

examiners would be called as witnesses. Under these circumstanc es, King effectively waived his right to demand anything more. Accordingly, the firs t assignment of error is

overruled. {¶ 10} In his second assignment of error, King alleges ineffective ass istance of counsel based on his attorney’s failure to request an evidentia ry hearing concerning his competence to stand trial. King cites four facts that he claims were indicative of incompetence: (1) his use of a child as a “shield” during the s tandoff, (2) his initial refusal to undergo a competency evaluation or to appear in court with c ounsel, (3) his initial failure to complete two competency evaluations, and (4) his rejection o f a favorable plea bargain. Although two experts ultimately evaluated King and found him co mpetent to stand trial, he argues that his attorney should have requested a “full” evid entiary hearing on the issue. King also suggests in passing that his attorney should not have abandoned a defense that he was not guilty by reason of insanity (“NGRI”).-6- {¶ 11} As noted above, two experts evaluated King before trial regardi ng his competence. Both evaluations resulted in findings that he was f ully capable of understanding the proceedings and assisting counsel with his de fense. In light of these findings, defense counsel reasonably elected to stipulate to th e reports and to the fact that the experts would testify consistent with those reports if called to testify at a hearing. We see no deficient performance in defense counsel’s failure to require the trial court to hold a “full” hearing so the two experts could testify in perso n. On this record, we also see no prejudice to King resulting from a lack of in-person testimo ny. If the experts had testified, their testimony presumably would have been consisten t with their reports, just as defense counsel stipulated. We are unaware of any other evid ence or testimony that reasonably might have controverted the experts’ opinions and re sulted in the trial court’s finding King incompetent to stand trial. The four facts King ci tes fail to persuade us that his attorney provided prejudicially deficient representation by failing to demand a hearing with in-person testimony. {¶ 12} Finally, defense counsel did not provide ineffective assistance by abandoning an NGRI defense. In addition to being examined for c ompetence to stand trial, King also was examined for a potential NGRI defense. The examiner found that he

did not suffer from a severe mental disease or defect at the ti me of his offenses and that he understood the wrongfulness of his actions. Considering that a psychological expert already had found that King did not qualify for an NGRI defense , his attorney reasonably could have decided not to pursue the defense. State v. Pepper , 2d Dist. Miami No. 2013- CA-6, 2014-Ohio-3841, ¶ 8 (where expert reports prepared by a p sychologist unequivocally found that the defendant was competent to stand t rial and sane at the time-7- of the offense, and the defendant did not identify any particul ar basis on which to challenge those reports, there was no basis to conclude defense counsel provided ineffective assistance by failing to pursue an NGRI plea). Base d on the record before us, we see no reasonable probability t hat such a defense would have prevailed at trial. The second assignment of error is overruled. {¶ 13} In his third assignment of error, King contends the manifest we ight of the evidence did not support his conviction on any firearm-related offenses. King notes that no actual firearm was found at the scene. He claims it was impl ausible to believe he got rid of a firearm or hid one in the house, given that police sur rounded the premises during the standoff and searched it afterward. King also asserts that the State presented conflicting testimony about the type of firearm he used or poss essed, i.e., a handgun or a rifle. Finally, King questions whether the evidence supported a finding that he fired a weapon from the house toward officers. Under these circumstance s, King argues that the jury lost its way in c onvicting him on any firearm-related char ges. {¶ 14} When a c onviction is challenged on a ppeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidenc e and all reasonable inferences, cons ider witness credibility, and de termine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be r eversed and a new trial

ordered.” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest weigh t of the evidence “only in the exceptional case in which the evidence weighs heavily ag ainst the conviction.”

State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).-8- {¶ 15} With the foregoing standards in mind, we conclude that King’s f irearmrelated convictions were not against the manifest weight of the evidence. Although the weapon King used was not recovered, the record supports a findi ng that he discharged a handgun toward officers during the standoff. Harriel testified that prior to the 911 call, King had threatened her by holding a pistol to her head. Then during the initial 911 call, Harriel reported that King was in possession of a gun and was actively loading it. Harriel identified the weapon as a pistol, not an air rifle. Harriel’s neighbor al so reported that she had spoken to King, and he told her he had a gun and wanted to enga ge in a “Mexican standoff,” which Harriel explained meant a shootout. Although o fficers later observed King holding what turned out to be an air rifle, they also saw a muz zle flash and the sound of a gunshot coming from inside the house. The State’s evidence at trial established that an air gun does not produce a muzzle flash because it lacks gunpow der. Nor was the sound of a gunshot consistent with an air rifle being discharged. Thu s, the jury reasonably could have inferred that the observed muzzle flash was coming from an actual firearm, namely the handgun that Harriel had seen King loading. {¶ 16} The State also presented evidenc e of spent nine-millimeter shel l casings being found, including one found in King’s living room. Live ni ne-millimeter bullets were also found in King’s house, along with ammunition of other cali bers that was strewn

around the residence. Harriel testified that there were no bull et holes inside her house when she exited. After King was arrested, however, officers fou nd multiple bullet holes inside the house near the front door. One of them was accompani ed by debris that was blow outward, indicating that a firearm had been fired inside t he residence toward outside. A nine-millimeter shell casing was located in the house near th at bullet hole. The bullet-9- from that gunshot was recovered from the wall and was found to have been fired from a nine-millimeter handgun, not any of the firearms used by the of ficers. Based on the location of that bullet, five officers outside would have been positioned in the line of fire. {¶ 17} We note too that King remained inside the home for several hour s after the gunfire. His home had a full-sized utility basement that was wa ist-high with miscellaneous items and had standing water on the floor. Thus, King had suffi cient time to conceal a handgun and a potential place to hide it. During a jailhouse vi sit after King’s arrest, he informed Harriel that police had failed to find a gun inside th e residence. Harriel then asked King what he did with it. He responded that “Chuck got it .” This response fairly supports an inference that King did have a firearm and that he hid the weapon before getting rid of it. {¶ 18} Ultimately, it was for the trier of fact to decide whether to b elieve Harriel’s testimony about King’s loading a handgun and holding it to her head and the officers’ testimony about observing a muzzle flash and hearing a gunshot inside the house. The jury also was free to find persuasive the circumstantial eviden ce that King discharged a firearm toward the officers and then hid the weapon before bein g arrested. Based on our review of the record, we do not find that the jury clearly lost its way in accepting the State’s theory of the case and finding King guilty of the firearm-relat ed offenses. The evidence did not weigh heavily against his convictions. Accordingly, the third assignment of error

is overruled. {¶ 19} The judgment of the Montgomery County Common Pleas Court is aff irmed.

. . . . . . . . . . . . .-10- TUCKER, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Heather N. Ketter Michael Mills Hon. Dennis J. Adkins