State v. King

2021 Ohio 1113

• Court: Ohio Court of Appeals
• Decided: April 2, 2021
• Docket: 28807
• Status: Published

Opinion

[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 : Appellate Case No. 28807 : v. : Trial Court Case No. 2019-CR-477 : TODD ANTHONY KING : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 2nd day of April, 2021.

MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL MILLS, Atty. Reg. No. 0092133, 371 West First Street, 2nd Floor, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Todd Anthony King appeals from his conviction on charges of felonious

assault (five counts), evidence tampering, inducing a panic, child endangering (two

counts), having a weapon while under disability, and a firearm specification.

{¶ 2} King advances three assignments of error. First, he contends the trial court

erred in finding him competent to stand trial without conducting an evidentiary hearing.

Second, he alleges ineffective assistance of counsel based on his 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 manifest weight of the

evidence.

{¶ 3} The present appeal stems from King’s role in a standoff with police following

a 911 call from his home reporting a domestic disturbance. During 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 with police. When officers

arrived at the scene, Harriel went outside and told them King was armed and intoxicated

and that her two young children remained inside with him. A neighbor, 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 “Mexican standoff” with police,

that he was potentially intoxicated, and that he was armed. Over the hours that followed,

King appeared in the doorway and on the porch of his home and spoke to officers but

refused to leave the premises. Around 10:30 p.m., he was observed 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 reported 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 barricade. 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 that 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 living room, they found a nine-

millimeter shell casing that had been fired from the same gun that had discharged the two

nine-millimeter shell casings found outside. A spent nine-millimeter bullet also was

removed from King’s living-room wall near the front door. A firearms expert could not

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

been recovered. Based on the location of the bullet strike in the wall, however, police

officers would have been positioned in the direction that the shot was fired. Police found

a realistic-looking black air rifle on the living room floor after the shooting. No operable

firearms were found inside the home. Following King’s arrest, Harriel visited him in jail

and asked what he had done with the handgun she had seen. King responded that a

friend had it.

{¶ 5} Based on the evidence presented, the trial court found King guilty 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 pretrial motion. King cites

R.C. 2945.37(B), which provides that the trial court “shall hold a hearing” if a defendant’s

competence to stand trial is raised as an issue. King argues that the trial court violated

this mandate by simply admitting two competency evaluations into the record and

summarily finding him competent to stand trial. King asserts that the trial court was

required to hold a “full” hearing and to inquire from defense counsel 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 two experts. Both of the

experts submitted written reports finding King competent to stand 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 reports. They also stipulated

that if the examiners were called to testify at a hearing the testimony would be consistent

with their reports. (Tr. 17-18.) No other evidence was presented. 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 evidence at a

competency hearing may consist of one or more stipulated written evaluation reports. See

R.C. 2945.37(E) (recognizing that “[a] written report of the evaluation 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 consistent 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 report as evidence by -5-

stipulation. A defendant may waive his right to a competency hearing by stipulating to the

competency report.”); State v. O'Neill, 7th Dist. Mahoning No. 03 MA 188, 2004-Ohio-

6805, ¶ 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-Ohio-

750, ¶ 20 (reasoning that a juvenile court could dispense with a competency hearing

where the defendant stipulated to the contents of an expert report finding him competent

to stand trial).

{¶ 9} Here the parties stipulated to the contents of two evaluation reports finding

King competent to stand trial in lieu of proceeding with a fuller hearing at which the

examiners would be called as witnesses. Under these circumstances, King effectively

waived his right to demand anything more. Accordingly, the first assignment of error is

overruled.

{¶ 10} In his second assignment of error, King alleges ineffective assistance of

counsel based on his attorney’s failure to request an evidentiary 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 standoff, (2) his initial refusal

to undergo a competency evaluation or to appear in court with counsel, (3) his initial failure

to complete two competency evaluations, and (4) his rejection of a favorable plea bargain.

Although two experts ultimately evaluated King and found him competent to stand trial,

he argues that his attorney should have requested a “full” evidentiary 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 regarding his

competence. Both evaluations resulted in findings that he was fully capable of

understanding the proceedings and assisting counsel with his defense. In light of these

findings, defense counsel reasonably elected to stipulate to the 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 person. On this record, we also see

no prejudice to King resulting from a lack of in-person testimony. If the experts had

testified, their testimony presumably would have been consistent with their reports, just

as defense counsel stipulated. We are unaware of any other evidence or testimony that

reasonably might have controverted the experts’ opinions and resulted in the trial court’s

finding King incompetent to stand trial. The four facts King cites 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 competence 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 time 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 psychologist

unequivocally found that the defendant was competent to stand trial and sane at the time -7-

of the offense, and the defendant did not identify any particular 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). Based on the record before us,

we see no reasonable probability that 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 weight 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 implausible to believe he got

rid of a firearm or hid one in the house, given that police surrounded 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 possessed, 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 circumstances, King argues that the

jury lost its way in convicting him on any firearm-related charges.

{¶ 14} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine 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 reversed 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 weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against 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 firearm-

related convictions were not against the manifest weight of the evidence. Although the

weapon King used was not recovered, the record supports a finding 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 also reported that she had

spoken to King, and he told her he had a gun and wanted to engage in a “Mexican

standoff,” which Harriel explained meant a shootout. Although officers later observed King

holding what turned out to be an air rifle, they also saw a muzzle 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 gunpowder. Nor was the sound

of a gunshot consistent with an air rifle being discharged. Thus, 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 evidence of spent nine-millimeter shell casings

being found, including one found in King’s living room. Live nine-millimeter bullets were

also found in King’s house, along with ammunition of other calibers that was strewn

around the residence. Harriel testified that there were no bullet holes inside her house

when she exited. After King was arrested, however, officers found multiple bullet holes

inside the house near the front door. One of them was accompanied by debris that was

blow outward, indicating that a firearm had been fired inside the residence toward outside.

A nine-millimeter shell casing was located in the house near that 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 officers. 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 hours after the

gunfire. His home had a full-sized utility basement that was waist-high with miscellaneous

items and had standing water on the floor. Thus, King had sufficient time to conceal a

handgun and a potential place to hide it. During a jailhouse visit after King’s arrest, he

informed Harriel that police had failed to find a gun inside the 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 believe 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 evidence that King discharged a

firearm toward the officers and then hid the weapon before being 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-related 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 affirmed.

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TUCKER, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Michael Mills Hon. Dennis J. Adkins