[Cite as State v. Merritt , 2021-Ohio-2847.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Crai g R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2020 CA 0063 HUNTER MERRITT Defendant-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2020 CR 0220

JUDGMENT: Affirmed in part; Reversed in part; Remanded for resentencin g DATE OF JUDGMENT ENTRY: Au g ust 18, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

GARY BISHOP DARIN AVERY Prosecutin g Attorne y 105 Stur g es Avenue Richland Count y , Ohio Mansfield, Ohio 44903

JOSEPH C. SNYDER Assistant Prosecutin g Attorne y 38 South Park Street, #2 Mansfield, Ohio 44902Richland Count y , Case No. 2020 CA 0063 2

Hoffman, J. {¶1} Defendant-appellant Hunter Merritt appeals the judgment entered by the Richland County Common Pleas Court convicting him of five count s of having weapons while under disability (R.C. 29 23.13(A)(2),(B)), three counts o f domestic violence (R.C. 2919.25(A),(C),(D)(2)) and one count of aggravated menacing (R. C. 2903.21(A),(B)) and sentencing him to an aggregate term of incarceration of fifteen years. Plaintiff-appellee

is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} Appellant and A.M. entered into a relationship in 2019. Appell ant went to prison shortly after they began dating, but A.M. stayed with hi m while he was in prison. Appellant moved in with A.M. after he was released from prison in October of 2019. After they began living together, the couple fought daily. Appellant entered into a relationship with another woman, C.C. A.M. was aware Appellant was not supp osed to have a firearm, but knew he had several. On December 5, 2019, she photographed Appellant with a handgun. {¶3} On December 9, 2019, Appellant went to A.M.’s apartment. He be lieved A.M. was cheating on him with his best friend. A.M. was sleepi ng in her bedroom. Appellant entered the room and fired a gun into the bed, throug h the mattress, and into the floor. Appellant told A.M. he was going to kill her, and s he had to get into his truck. He dragged A.M. to the truck, telling her they were first going to see the man who he believed A.M. was seeing. Appellant told A.M. he was then goi ng to take her out into the country to make her dig a hole for herself so he could kill her . When Appellant pulled into a church parking lot, A.M. jumped out of the truck and ran to a nearby house. The woman inside the home called the Richland County Sheriff’s office.Richland Count y , Case No. 2020 CA 0063 3

{¶4} Appellant began dating C.C. in November of 2019. He moved into C.C.’s house a few days later. The relationship was tumultuous from t he beginning. According to C.C., Appellant would pistol whip her, beat her up, and shoo t at her inside the house.

C.C. took her kids to live with her mother while she was with A ppellant. Appellant believed C.C. was cheating on him. He tracked her phone when she was no t home and accused of her of doing things he did no t like. C.C. received multiple black eyes, busted lips, and defensive bruises on her arms from Appellant. There were bulle t holes throughout her home from Appellant shooting at her. Appellant took C.C. into the woods to dig a hole for herself. He put a gun to her head and told her he was going to kill her. {¶5} During January, February, and early March of 2020, C.C.’s neigh bor heard shots coming from the house. In early February, C.C. showed up at the neighbor’s door with one of her children, stating Appellant had become violent and had taken her phone so she could not call for a ride. The neighbor allowed her to use his phone to call for a ride. C.C. walked to her grandfather’s house, where she was pi cked up by her mother. C.C.’s stepfather, Mark Solon, went to C.C.’s house to lock it up, because C.C. told him Appellant was leaving the house. While Solon was in his vehicl e, Appellant came out with what appeared to be a gun in the waistband of his pants. {¶6} At 6:30 a.m. on March 9, 2020, a 13-year-old neighbor was walki ng to the bus stop. She heard yelling, and saw a man with a gun yelling at her dog, using the gun to “shoo” the dog away. Following this inci dent, the Richland County Sheriff’s Department became aware Appellant was prohibited from possessin g firearms based on his prior convictions, and obtained a search warrant. Upon sea rching the home on MarchRichland Count y , Case No. 2020 CA 0063 4

12, 2020, two loaded firearms were found in the bedroom under t he mattress. Bullet holes were found throughout the home. {¶7} Appellant was indicted by the Richland County Grand Jury with f ive counts of having a weapon under disab ility, four counts of domestic vi olence, and one count of aggravated menacing. The case proceeded to jury trial in the R ichland County Common

Pleas Court. {¶8} Appellant was convicted of all counts with the exception of Cou nt Two of domestic violence. The trial court sentenced him to three year s incarceration on each count of having a weapon under d isability, to be served consecu tively. The trial court sentenced him to 30 days in jail for two counts of domestic vio lence, 180 days in jail for the remaining count of domestic violence, and 180 days in jail for aggravated menacing, to be served concurrently. It is from the September 2, 2020 ju dgment of the trial court Appellant prosecutes his appeal, assigning as error:

I. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL.

II. THE TRIAL COURT ERRED IN DENYING MERRITT’S R. 29 MOTION FOR ACQUITTAL WITH RESPECT TO COUNTS FIVE AND

EIGHT.

III. THE TRIAL COURT ERRED BY PREVENTING THE

ADMISSION OF ADMISSIBLE EVIDENCE THAT COULD HAVE

UNDERMINED THE CREDIBILITY OF A WITNESS WHOSE TESTIMONY

WAS NECESSARY TO ESTABLISH COUNTS 1-4.Richland Count y , Case No. 2020 CA 0063 5

IV. THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT OF ANY CRIME, AS IT APPEARS NO

WITNESS RELIABLY IDENTIFIED HIM.

V. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO

AMEND THE DATES OF COUNTS 1 AND 5 DURING TRIAL.

VI. THE TRIAL COURT ERRED BY FAILING TO MERGE SEVERAL

OF THE COUNTS FOR SENTENCING.

I.

{¶9} In his first assignment of error, Appellant argues trial counse l was ineffective for failing to move to dismiss the charges for violation of his right to a speedy trial under R.C. 2945.73, failing to file a motion to suppress, and failing to move for a mistrial or a

continuance of the trial when the State twice amended the dates set forth in the indictment to conform to the evidence presented at trial. {¶10} A properly licensed attorney is presumed competent. State v. Hamblin , 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to p revail on a claim of ineffective assistance of counsel, Appellant must show counsel' s performance fell below an objective standard of reasonable representation and but for counsel’s error, the result of the proceedings would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, Appellant must show counsel’s cond uct so undermined the proper functioning of the adversarial process that the trial ca nnot be relied upon as having produced a just result. Id

.Richland Count y , Case No. 2020 CA 0063 6

{¶11} Appellant first argues counsel was ineffective by failing to fi le a motion to dismiss for violation of his speedy trial rights as set forth i n R.C. 2945.73. He argues he was incarcerated from March 12, 2020, through his trial date of August 25, 2020, and the trial court failed to initially set a trial date inside of 90 d ays, but instead set an initial trial

date of June 30. {¶12} Am. Sub. H.B. No. 197, enacted in response to the Covid-19 pand emic, provided in pertinent part as follows:

(A) The following that are set to expire between March 9, 2020 , and July 30, 2020, shall be tolled: (3) The time within which an accused person must be brought to trial or, in the case of a felony, to a preliminary hearing and trial : (10) Any other criminal, civil, or administrative time limitat ion or

deadline under the Revised Code. (B) This section applies retroactively to the date of the emer gency declared by Executive Order 2020-01D, issued on March 9, 2020. (C) Division (A) of this section expires on the date the perio d of emergency ends or July 30, 2020, whichever is sooner.

{¶13} The parties agree Appellant was arrested on March 12, 2020 and held in prison; therefore, the date on which he must be brought to tria l pursuant to R.C. 2945.71 was June 10, 2020. However, pursuant to House Bill 197, becaus e the time within which Appellant must be brought to trial expired between the dates of March 9, 2020, and JulyRichland Count y , Case No. 2020 CA 0063 7

30, 2020, the time was tolled until July 30, 2020. Therefore, time did not begin to run on Appellant’s speedy trial claim until July 30, 2020. Because Ap pellant was brought to trial on August 25, 2020, well within ninety days from July 30, 2020, there was no violation of Appellant’s speedy trial rights, and we find counsel was not in effective for failing to file a

motion to dismiss. {¶14} Appellant next argues counsel was ineffective for failing to fi le a motion to suppress evidence seized from Appellant’s home pursuant to a se arch warrant on March 12, 2020. {¶15} Trial counsel's failure to file a suppression motion does not p er se constitute

ineffective assistance of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). C ounsel can only be found ineffective for failing to file a moti on to suppress if, based on the record, the motion would have been granted. State v. Lavelle , 5th Dist. No. 07 CA 130, 2008-Ohio-3119, 2008 WL 2571700, at ¶ 47 ; State v. Cheatam , 5th Dist. No. 06-CA-88, 2007-Ohio-3009, 2007 WL 1731619, at ¶ 86. {¶16} Appellant concedes neither the warrant nor the affidavit used b y police to secure the warrant is a part of the record before this Court on appeal. However, he argues

based on Chimel v. California , 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969), the search of his home was unreasonable because Officer Berry could have arrested Appellant on March 9 pursuant to an arrest warrant out of anoth er agency, rather than waiting until he executed a search warrant on March 12. {¶17} The facts of Chimel are distinguishable from the instant case. In Chimel , the United States Supreme Court held a warrantless search of th e defendant's entire house, incident to the defendant's proper arrest inside the hou se pursuant to a warrantRichland Count y , Case No. 2020 CA 0063 8

on a burglary charge, was unreasonable because the search exten ded beyond the defendant's person and the area from which he might have obtain ed either a weapon or something which could have been used as evidence against him. Id . at 768. Unlike

Chimel which involved a warrantless search of the home, in the instan t case, officers possessed a search warrant for Appellant’s home. We find coun sel was not ineffective for failing to file a motion to suppress because the record doe s not demonstrate a reasonable probability had counsel filed a motion to suppress, it would have been granted. {¶18} Appellant also argues counsel was ineffective for failing to mo ve for a

continuance or a mistrial after the trial court allowed the Sta te to amend the dates set

forth in the indictment for Counts 1-5 to conform to the eviden ce presented at trial. Crim. R. 7(D) provides:

The court may at any time before, during, or after a trial ame nd the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of a ny variance with the evidence, provided no change is made in the name or id entity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance be tween the indictment, information, or complaint and the proof, the defend ant is entitled to a discharge of the jury on the defendant's motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly a ppears from the whole proceedings that the defendant has not been misled or prejudicedRichland Count y , Case No. 2020 CA 0063 9

by the defect or variance in respect to which the amendment is made, or that the defendant's rights will be fully protected by proceedi ng with the trial, or by a postponement thereof to a later day with the same or an other jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense charged in the amended indictment, information, or complaint. No action of the court in refusing a continuance or postponemen t under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such actio n of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justic e resulted.

{¶19} The indictment for counts one through four specified a date ran ge of “on or about December 9, 2019.” After photographs of Appellant with a handgun in his possession were presented through the testimony of A.M., the pr osecutor sought amendment of the dates in the indictment to include a date rang e of December 5, 2019, to December 9, 2019. Tr. 208. Although counsel objected to th e amendment, counsel did not request a mistrial or a continuance. Counsel conceded he had received the photographs in discovery, and the photograph in question facial ly displayed a date of December 5, 2019; therefore, counsel was not surprised by the d ate. Further, we find a date of December 5 is not materially different from a date rang e of “on or about” December 9, and Appellant has not demonstrated had counsel requested a m istrial or a continuance, the request would have been granted.Richland Count y , Case No. 2020 CA 0063 10

{¶20} As to the amendment of the date range for count 5, we find Appe llant’s claim is moot based on our ruling the evidence was insufficient to su pport a conviction pursuant to Appellant’s second assignment of error. {¶21} The first assignment of error is overruled.

II. {¶22} In his second assignment of error, Appellant argues the State d id not present sufficient evidence on counts five and eight of having a weapon under disability, and the trial court therefore erred in overruling his Crim. R. 29 motions for directed verdict of acquittal. {¶23} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence presented at trial. State v. Blue , 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing

State v. Williams , 74 Ohio St.3d 569, 576, 1996–Ohio–91, 660 N.E.2d 724. Crim. R . 29(A) allows a trial court to enter a judgment of acquittal when the State's evidence is insufficient

to sustain a conviction. A trial court should not sustain a Cri m. R. 29 motion for acquittal unless, after viewing the evidence in a light most favorable to the state, the court finds no

rational finder of fact could find the essential elements of th e charge proven beyond a

reasonable doubt. State v. Franklin , 5th Dist. Stark No. 2007–CA–00022, 2007–Ohio– 4649 at ¶ 12, citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d

1096. {¶24} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crimeRichland Count y , Case No. 2020 CA 0063 11

proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991). {¶25} In counts five and eight, Appellant was charged with having a w eapon under a disability in violation of R.C. 2923.13(A)(2):

(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: (2) The person is under indictment for or has been convicted o f any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

{¶26} “Firearm” is defined by R.C. 2923.11(B):

(B)(1) “Firearm” means any deadl y weapon capable of expelling or propelling one or more projectiles by the action of an explosiv e or combustible propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered ope rable. (2) When determining whether a fi rearm is capable of expelling or propelling one or more projectiles by the action of an explosiv e or combustible propellant, the trier of fact may rely upon circums tantialRichland Count y , Case No. 2020 CA 0063 12

evidence, including, but not limited to, the representations an d actions of the individual exercising control over the firearm.

{¶27} “[W]here an individual brandishes a gun and implicitly but not expressly threatens to discharge the firearm at the time of the offense, the threat can be sufficient to satisfy the state's burden of proving that the firearm was o perable or capable of being readily rendered operable. State v. Thompkins , 78 Ohio St.3d 380, 384, 678 N.E.2d 541, 545 (1997). {¶28} As to Count 5 of having a weapon under a disability, Mark Solon , C.C.’s stepfather, testified he went to C.C.’s home to lock up the hou se, believing Appellant had left the house. Appellant came out of the house with what appe ared to Solon to be a handgun in the waistband of his pants. Solon testified he was fam iliar with weapons, and the handle he could see protruding from Appellant’s waistba nd appeared to be a 1911 semi-automatic pistol, not a revolver. When shown a pictu re of the handgun recovered in the search of Appellant’s home, Solon testified ba sed on the gun being in Appellant’s waistband the entire time and Solon’s ability to vi ew only the grip and rear, the gun in the picture appeared to be “very similar.” Tr. 370. However, Solon was unable to affirmatively testify the gun in the picture and the gun rec overed from under Appellant’s mattress were the same gun due to his inability to see the enti re gun. The evidence reflected Appellant kept the gun in the waistband of his pants during the entire encounter, and did not brandish or implicitly threaten to discharge the we apon during the incident. We therefore find the State failed to present sufficient eviden ce of operability to demonstrate the handle observed by Solon was a firearm as defin ed by R.C. 2923.11(B),Richland Count y , Case No. 2020 CA 0063 13

and the trial court therefore e rred in failing to grant Appella nt’s motion for a directed verdict of acquittal as to count five of having a weapon under a disabi lity. {¶29} Count eight of having a weapon under disability arose from the incident on March 9, 2020, in which the neighbor girl, W.W., saw a man yell ing and waving a gun at her dog at 6:30 a.m. as she went to the bus stop to travel to s chool. {¶30} Appellant first argues the evidence does not support a finding the weapon observed by W.W. was an operable firearm as defined by R.C. 292 3.11. W.W. testified the man was pointing the gun at the ground, waving it up and do wn like he was trying to move the dog away. The man was yelling at the dog. She testif ied, “He wasn’t being like violent, but he wasn’t being nice.” Tr. 255. The ye lling combined with the way the man held the gun caused her concern. She testified she was able to see the front or top part of the gun. She testified her dad has paint ball guns, and the y are bigger than the gun she the man in front of Appellant’s house holding. She testifi ed the gun the man was holding was pistol-sized. Viewed in a light most favorable to the State, we find W.W.’s testimony about the appearance of the gun and the manner in whi ch the man was yelling and waving the gun around sufficient evidence from which a rati onal trier of fact could find beyond a reasonable doubt the gun was a “firearm” as defined b y R.C. 2923.11. {¶31} Appellant also argues W.W. failed to identify him as the man wh o waved the gun at her dog. W.W. was unable to identify Appellant, or any suspect, from a photo lineup. She was also unable to identify Appellant at trial. T he incident occurred around 6:30 a.m. on March 9, 2020, when it was not yet light outside, and she was unable to clearly see the man’s face. The State presented evidence Appel lant resided at the home identified by W.W. with his girlfriend, C.C. C.C. testified Ap pellant had a pistol when heRichland Count y , Case No. 2020 CA 0063 14

moved in with her, which he carried “[e]veryday, all day long.” Tr. 277. C.C. testified he carried the pistol everywhere, and never went anywhere without it. Although W.W. was unable to clearly view the man’s face, she provided a general d escription of the man to police as tall, not skinny but not fat, with a beard, and weari ng a black hoodie. Sgt. James Berry of the Richland County Sherriff’s Department went to Appe llant’s home on March 9, after receiving the report of the incident with W.W. Appell ant had a beard at that time, met the general description given by W.W., and had a black or “ extremely dark navy blue” sweatshirt over his shoulder. Tr. 591. Viewed in a light most favorable to the State, we

find the evidence sufficient from which a rational trier of fac t could find Appellant’s identity proven beyond a reasonable doubt. {¶32} The second assignment of error is overruled as to count eight a nd sustained

as to count five.

III. {¶33} In his third assignment of error, Appellant argues the court er red in sustaining the State’s objections to his questioning of Sgt. Be rry and A.M. regarding A.M.’s statements recorded in Sgt. Berry’s police report. {¶34} “A trial court is vested with broad discretion in determining t he admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence.” Rigby v. Lake Cty ., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). An abuse of discretion is more than a mere error i n judgment; it is a “perversity of will, passion, prejudice, partiality, or moral d elinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).Richland Count y , Case No. 2020 CA 0063 15

{¶35} While cross-examining A.M., counsel for Appellant began reading to her from Sgt. Berry’s report. After the State objected, counsel for Appellant represented at sidebar A.M. previously made a statement to Sgt. Berry which wa s inconsistent with her trial testimony. The trial court sustained the objection, and informed counsel the manner in which to proceed if he wanted to use A.M.’s prior statement to impeach A.M.’s trial testimony. Counsel r esponded, “That will work,” and, “So I wil l go ahead and ask her for her response then.” Tr. 198. However, when questioning resume d, Appellant made no attempt to impeach A.M. with her prior statement to Sgt. Berry. {¶36} During cross-examination of Sgt. Berry, counsel for Appellant b egan questioning the officer about statements he recounted in his po lice report made by A.M. and by the woman whose house she ran to after escaping Appellan t’s truck. The State objected. The trial court sustained the objection, noting the report contained nested hearsay, or “hearsay within hearsay.” Tr. 626. {¶37} Appellant argues the police report was admissible as an excepti on to the hearsay rule pursuant to Evid. R. 803(8):

The following are not excluded by the hearsay rule, even thoug h the

declarant is available as a witness: (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to rep ort, excluding, however, in criminal cases matters observed by polic e officersRichland Count y , Case No. 2020 CA 0063 16

and other law enforcement personnel, unless offered by defendan t, unless

the sources of information or other circumstances indicate lack of

trustworthiness.

{¶38} However, Appellant was attempting to introduce hearsay statemen ts nested within the document. Evid. R. 805 provides, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined st atements conforms with an exception to the hearsay rule provided in these rules.” App ellant does not argue the hearsay statements included within the report are admissible un der any other exception to the hearsay rule. We therefore find the trial court did not abuse its discretion in excluding the statements within the police report as hearsay. Further, the police report is not a part of the record before this Court on appeal, and we th erefore cannot find Appellant was prejudiced by its exclusion. {¶39} The third assignment of error is overruled.

IV. {¶40} In his fourth assignment of error, Appellant argues the record demonstrates Appellant was wearing a face mask in the courtroom, and every w itness identification of Appellant is therefore “suspect.” {¶41} Nothing in the record demonstrates Appellant’s mask affected th e in-court identifications by witnesses. A.M. and C.C. both were romantic ally involved with Appellant, and lived with Appellant and thus were very familiar with his appearance. C.C.’s mother and stepfather interacted with Appellant on multi ple occasions, as did the police officers who identified Appellant at trial. Appellant’s argument their identificationsRichland Count y , Case No. 2020 CA 0063 17

were unreliable because he was wearing a face mask to comply wi th the trial court’s Covid-19 safety procedures is speculative. We find the record does not demonstrate the in-court identifications by the witnesses in the instant case w ere rendered unreliable by Appellant’s use of a face mask. {¶42} In addition, Appellant removed his face mask to testify. Tr. 6 59. This allowed the jury to clearly see his face and identify him throu gh the body-camera video which earlier had been played during the testimony of Sgt. Berr y. {¶43} The fourth assignment of error is overruled.

V. {¶44} In his fifth assignment of error, Appellant argues the trial co urt erred in allowing the State to amend the indictment to conform to the ev idence presented at trial with regard to Counts 1 through 4, and later as to Count 5. {¶45} We find Appellant’s argument as to Count 5 is rendered moot by our ruling in assignment of error two the conviction on count five was sup ported by insufficient

evidence. {¶46} Crim. R. 7(D) provides:

The court may at any time before, during, or after a trial ame nd the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of a ny variance with the evidence, provided no change is made in the name or id entity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance be tween theRichland Count y , Case No. 2020 CA 0063 18

indictment, information, or complaint and the proof, the defend ant is entitled to a discharge of the jury on the defendant's motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly a ppears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant's rights will be fully protected by proceedi ng with the trial, or by a postponement thereof to a later day with the same or an other jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense charged in the amended indictment, information, or complaint. No action of the court in refusing a continuance or postponemen t under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such actio n of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justic e resulted.

{¶47} Although the rule permits most amendments, it flatly prohibits amendments which change the name or identity of the crime charged. See State v. O'Brien , 30 Ohio St.3d 122, 126, 30 OBR 436, 508 N.E.2d 144 (1987). A trial cour t commits reversible error when it permits an amendment which changes the name or id entity of the offense charged, regardless of whether the defendant suffered prejudice

. State v. Smith , Franklin App. No. 03AP–1157, 2004-Ohio-4786, 2004 WL 2008465, at ¶ 10. See, also, State v. Headley , 6 Ohio St.3d 475, 6 OBR 526, 453 N.E.2d 716. “Whether an amen dment changes the name or identity of the crime charged is a matter o f law.” State v. Cooper ,Richland Count y , Case No. 2020 CA 0063 19

4th Dist. Ross App. No. 97CA2326, 1998 WL 340700 (June 25, 1998 ), citing State v.

Jackson , 78 Ohio App.3d 479, 605 N.E.2d 426 (1992). {¶48} The indictment for counts one through four specified a date ran ge of “on or about December 9, 2019.” After a photograph of Appellant with a handgun in his possession was presented through the testimony of A.M., the pro secutor sought amendment of the dates in the indictment to include a date rang e of December 5, 2019, to December 9, 2019. Tr. 208. The photograph facially reflect ed a date of December 5,

2019. {¶49} Appellant relies on this Court’s decision in State v. Plaster , 164 Ohio App. 3d 750, 2005-Ohio-6770, 843 N.E.2d 1261 to support his argument the amendment in the instant case potentially resulted in his conviction of crim es not presented to the grand jury, thus changing the name or identity of the offense charged . In Plaster, the trial court granted an amendment to Plaster’s indictment, which originally charged the date of the

offense as “on or about the 22 nd day of March, 2004,” to include incidents occurring between February 20, 2004 and March 22, 2004. Although the gra nd jury in Plaster did not indict the defendant for a continuing course of conduct, as a result of the amendment, was Appellant was convicted of a continuous course of conduct w hich included two separate incidents not presented to the grand jury. Because Pl aster could have independently been convicted on the evidence of either of these other two incidents and not for the March 22 incident for which he was indicted, this C ourt found the trial court erred in allowing the state to amend the indictment. Id. at ¶44. {¶50} In the instant case, the amendment changed the date range from “on or about December 9, 2019” to “on or about December 5 th through December 9 th , 2019.” Tr.Richland Count y , Case No. 2020 CA 0063 20

211. The amendment was based on the existence of a date on a p icture of Appellant with a handgun, which was dated December 5, 2019. The charges in c ounts one through four all surrounded the incident which occurred with A.M., in w hich Appellant shot through her bed into the floor, forced her into his truck, and told her he was going to kill her and make her dig the hole in which to bury her. From these events, Appellant was acquitted of one charge of domestic violence, but was convicted of domest ic violence, aggravated menacing and having a weapon under disability. Unlike Plaster , the record does not demonstrate Appellant was potentially convicted of separate inc idents which were not presented to the grand jury, nor does the amendment in the inst ant case change the offense to a continuous course of conduct. The picture bearing the date of December 5, 2019 was provided to defense counsel in discovery. We find the trial court did not err in allowing the State to amend the indictment to conform to the vi ctim’s testimony and the picture admitted into evidence in the instant case, as the reco rd does not demonstrate the amendment changed the nature or identity of the offense, no r does the record demonstrate Appellant was potentially convicted on separate cha rges from those presented to the grand jury. {¶51} The fifth assignment of error is overruled.

VI. {¶52} Appellant argues all counts of having a weapon under a disabili ty should merge for sentencing because he engaged in a single course of c onduct in possessing the guns during a time frame from December 5, 2019, through Mar ch 12, 2020. He argues the acts were not committed separately, but only detecte d by various witnesses on separate dates, and all acts were committed with the same an imus.Richland Count y , Case No. 2020 CA 0063 21

{¶53} Count one involved the gun possessed by Appellant in the pictur e taken by A.M. on December 5, 2019, and fired through her bed into the fl oor on December 9, 2019. Count five has been vacated by this Court pursuant to Appellant ’s second assignment of error, and any argument regarding merger is therefore rendered moot. Count eight involved Appellant’s brandishing the gun to scare away W.W.’s d og on March 9, 2020. Counts nine and ten relate to the handgun and the shotgun recov ered from under a mattress during the search of Appellant’s home on March 12, 202 0. {¶54} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, ¶25, the Ohio Supreme Court held when considering whether there are allied offenses which merge into a single conviction under R.C. 2941.25(A), both the trial court and the reviewing court on appeal must first take into account the cond uct of the defendant. In other words, how were the offenses committed? Id . If any of the following is true, the offenses cannot merge and the defendant may be convicted and se ntenced for multiple offenses: (1) the offenses are dissimilar in import or signific ance—in other words, each offense caused separate, identifiable harm, (2) the offenses we re committed separately, or (3) the offenses were committed with separate animus or moti vation. Id . When a defendant's conduct victimizes more than one person, the harm f or each person is separate and distinct, and therefore, the defendant can be conv icted of multiple counts.

Id. at ¶26. {¶55} Counts one and eight involved different victims from each other and from the counts arising from the discovery of the weapons under the mattress. Therefore, the harm for A.M. and for W.W. is separate and distinct, and Appell ant can be convicted of multiple counts.Richland Count y , Case No. 2020 CA 0063 22

{¶56} Appellant argued at sentencing counts nine and ten should merge because the shotgun and the handgun were found in the same location. A lthough the weapons were located in the same place, the record demonstrates the wea pons were acquired and possessed with separate animus or motivation. C.C. testified A ppellant brought the pistol with him when he moved into her home, and carried it everywhere with him. She testified he bought the shotgun for her protection, and left it at home w ith her. Tr. 277. We therefore find the offenses were committed separately and with separate motivation in the instant case, although the evidence of each was discovered at t he same time. The trial court did not err in failing to merge the offenses. {¶57} The sixth assignment of error is overruled. {¶58} Appellant’s conviction and sentence on count five of having a w eapon under disability is reversed, and pursuant to App. R. 12(B) we hereby enter final judgment of acquittal on that charge. All other convictions are affirmed. The matter is remanded to the trial court for resentencing consistent with our reversal o f Count Five.

By: Hoffman, J. Baldwin, P.J. and Wise, John, J. concur