State v. Wilson

1

2023-Ohio-1042

STATE OF OHIO, Plaintiff-Appellee, v. MARCELL L. WILSON, Defendant-Appellant.

No. 111755

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-658850-A

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Lisa J. Turoso, Assistant Prosecuting Attorney for appellee.

The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.

JOURNAL ENTRY AND OPINION

MICHELLE J. SHEEHAN, J.

{¶ 1} Defendant-appellant Marcell L. Wilson appeals from his convictions and sentences for multiple counts of felonious assault, improperly discharging a firearm at or into habitation, discharge of a firearm on or near prohibited premises, and aggravated menacing. These offenses stemmed from an incident where Wilson, after threatening to kill his girlfriend and police officers responding to the domestic incident, drove to the house where she was staying and fired six gunshots from his vehicle toward the police officers who were standing outside the house.

{¶ 2} On appeal, Wilson raises a myriad of issues concerning his convictions and sentence. He claims the evidence was insufficient for his convictions and the convictions were against the manifest weight of the evidence. He also challenges the imposition of the five-year drive-by shooting firearm specifications and the seven-year peace-officer firearm specifications accompanying the majority of his offenses. He raises additional issues regarding the indefinite sentences imposed under the Reagan Tokes Law. After a careful review of the record and applicable law, we affirm his convictions but vacate the five-year drive-by shooting specification accompanying the offense of discharge of a firearm on or near prohibited premises. We also remand the case for resentencing for the sole purpose of providing Wilson with the notification regarding his indefinite sentence required by the statute.

Grand Jury Indictment

{¶ 3} The grand jury returned a 16-count indictment against Wilson. Counts 1 to 10 related to an arson incident in his girlfriend J.R.'s apartment building on the day before the shooting incident. Wilson was acquitted of these charges, and this appeal concerns only Counts 11 to 16, which related to the March 7, 2021 shooting incident.

{¶ 4} Counts 11, 12, and 13 charged Wilson with felonious assault, a first-degree felony, against Officers Matthew Heitzer, Cory Barfield, and Sarah Theobald, respectively. Each count was accompanied with one- and three-year firearm specifications, a five-year drive-by shooting specification, and a seven-year peace-officer specification.

{¶ 5} Count 14 charged Wilson with improperly discharging a firearm at or into a habitation, a second-degree felony; Count 15 charged him with discharge of a firearm on or near prohibited premises, a third-degree felony. Both counts were accompanied with one- and three-year firearm specifications and a five-year drive-by shooting specification. Count 16 charged him with aggravated menacing, a first-degree misdemeanor.

Trial Testimony

{¶ 6} The case was tried in a bench trial. For Wilson's offenses relating to the shooting incident, the state presented the testimony of J.R. and her mother, as well as three officers from the Maple Heights Police Department who responded to the 911 call and were present when Wilson drove by and fired six shots from his vehicle. A detective and a fourth officer, who arrived after the shooting, also testified regarding their investigation of the shooting.

A. Testimony of J.R. and her Mother

{¶ 7} J.R., age 23, testified that she met Wilson when she was 17 and they have a two-year old daughter, who was being cared for by J.R.'s mother at her mother's house on Watercrest Avenue in Maple Heights. J.R. was staying with her sister at her sister's apartment in Warrensville at the time. On March 5, 2021, J.R. told Wilson she was breaking up with him and they argued over the phone all day. The next day, she stopped answering his phone calls and text messages at one point. Wilson then showed up at her apartment building and rang the buzzer to her door. She did not let him in. Feeling unsafe, she told her mother about Wilson's presence and her mother called the police. The police responded to the call but Wilson had left.

{¶ 8} J.R.'s sister was out of town at the time, and J.R. did not want to stay in her sister's apartment by herself. She went to her mother's house to stay for the night. The next day, Wilson continued to call her. On one of the phone calls, Wilson heard the voice of their daughter in the background. Because Wilson knew their daughter was being cared for by J.R.'s mother, J.R. quickly hung up the phone, for fear that Wilson may be alerted to her location. Soon after, Wilson began sending threatening text messages:

Wilson: We all dying today. I am sending the police to your mom's house J.R.: Bruh

What

What is wrong with you?

Wilson: Me and you [a]bout to be in a box * * *

And I will be killin cops today that ain't stopping me get ready

Or answer the phone

How you wanna to it

I was talking calm

Bet I'm on my way! Old Cel in full go mode let's turn up * * *

I am not f***in playing

Tell somebody to come get my daughter

Cause this ain't [a]bout to turn out good

Don't worry. I can show you better than I can tell you

Bet I'll just pull up to [your mother's] house again

Once again you brought drama to your mother's house

When should I be expecting the police cause if they pull up to this bitch they gone die and me [too]

On my way!

Wilson followed these text messages with a screenshot of a map showing his location, and then sent several more messages:

Y'all relationships don't work because you think it's okay to ignore someone when you mad instead of being an adult and communicating Your done you called the police again bitch you aint' coming back from this I'm putting you in a box bitch

I hate you you will have a close casket

You one police ass bitch

You gone done a rat

{¶ 9} J.R. testified that her mother called the police again. When the police officers arrived, J.R. showed them the messages from Wilson. Later, while inside the house, J.R. heard gunshots erupting and the bullets sounded "really close to the house." She immediately took her daughter to the basement.

{¶ 10} J.R.'s mother testified that the day before the shooting incident, she called the police because her daughter was scared that Wilson was trying to get inside her apartment. The police responded but Wilson was no longer in the area. For her safety, J.R. came over to her house to stay overnight. The next day, while J.R. was on the phone with Wilson, he heard the voice of their daughter and found out J.R. was at her mother's house. He began to send threatening messages, and J.R.'s mother called the police for help.

{¶ 11} J.R.'s mother testified that she did not believe the threats made in the text messages were real until Wilson started to send her daughter phone images of the landmarks near him, which showed that he was getting closer and closer to her house. While the police were outside her house, she heard multiple gunshots loud enough that she and her daughter ran down to the basement. The gunshots appeared to have come from a parking lot near the front of her house.

B. Testimony of the Police Officers

{¶ 12} Officers Sarah Theobald, Matthew Heitzer, and Cory Barfield of the Maple Heights Police Department responded to the call from J.R.'s mother on March 7, 2021. They parked a police vehicle in the driveway of her house and set up a perimeter around the house. Wilson's blue Chevy Trax drove by a nearby parking lot and four shots were fired from the vehicle. Moments later, as the vehicle sped off, two more shots were fired. The police recovered six shell casings from the area, and a bullet hole was located high up on a light post near the edge of the parking lot. The three police officers provided the following testimony regarding the incident.

{¶ 13} Officer Theobald testified that she was the first officer to arrive at the scene. J.R. and her mother were scared, frantic, and panicking. They told her that Wilson was on his way to the house and that he was driving a blue Chevy Trax. J.R.'s phone showed that Wilson had called her 49 times that day. In addition to the threatening text messages, they also showed her voicemails sent by Wilson and, in one of them, she could hear the sound of a firearm followed by Wilson saying that J.R. was "putting everyone's life in danger." She related Wilson's threats to Officer Heitzer, who was the second officer to arrive at the scene.

{¶ 14} Officer Barfield also arrived, and the officers set up a perimeter around the house. When Officer Heitzer spotted a blue Chevy Trax driving by, Officer Theobald took cover, and soon after, she heard multiple gunshots, followed by two more after a pause. The last two shots sounded further away than the first round of shots. The officers called the Bedford Police Department and Garfield Heights Police Department for assistance. Subsequently, Officer Theobald located two witnesses, who saw the blue vehicle heading south and driving into the parking lot at a high rate of speed. The vehicle stopped at the edge of the parking lot abutting Watercrest Avenue, spun around, and drove away northbound through the parking lot. Officer Theobald acknowledged that there were no bullets whizzing by the officers; no one was injured; and the only bullet hole located was on a light post, which was struck at a spot about 12 feet off the ground.

{¶ 15} Officer Heitzer testified that he responded to a report of domestic violence in...