State v. Morlock

2024 Ohio 429

• Court: Ohio Court of Appeals
• Decided: February 7, 2024
• Docket: 2023CA00024
• Status: Published

Opinion

[Cite as State v. Morlock, 2024-Ohio-429.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2023 CA 00024 JEREMY ALAN MORLOCK : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2022 CR 1020C

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 7, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE STONE KELLY S. MURRY Stark County Prosecutor 600 Courtyard Centre BY: CHRISTOPHER A. PIEKARSKI 116 Cleveland Ave., N.W. Assistant Prosecutor Canton, OH 44702 110 Central Plaza South Canton, OH 44702 [Cite as State v. Morlock, 2024-Ohio-429.]

Gwin, P.J.

{¶1} Defendant-appellant Jeremy Alan Morlock [Morlock] appeals his

convictions and sentences after a jury trial in the Stark County Court of Common Pleas,

Stark County, Ohio.

Facts and Procedural History

{¶2} On July 14, 2022, the Stark County Grand Jury indicted Morlock on:

Aggravated Murder, [Joseph Pomeroy] an unclassified felony, in violation of R.C.

2903.01(A), 2929.02(A)1; Murder, [Joseph Pomeroy] an unclassified felony, in violation of

R.C. 2903.02(A)(D), 2929.02(B)2; Kidnapping [Buddy Myers], a felony of the first degree,

in violation of R.C. 2905.01(A)(2)(C)(1)3; Aggravated Robbery [Buddy Myers], a felony of

the first degree, in violation of R.C. 2911.01(A)(1)(C)4; Grand Theft of a Motor Vehicle

[Buddy Myers], a felony of the fourth degree, in violation of R.C. 2913.02(A)(1)(B)(5)5;

Kidnapping [to terrorize, or to inflict serious physical harm on the victim], [Blake Waldrup],

a felony of the first degree, in violation of R.C. 2905.01(A)(3)(C)(1)6; Kidnapping [to

engage in sexual activity], [Blake Waldrup], a felony of the first degree, in violation of R.C.

2905.01(A)(4)(C)(1)7; Felonious Assault [Blake Waldrup], a felony of the second degree,

in violation of R.C. 2903.11(A)(1)(D)(1)(a)8; Rape [Blake Waldrup], a felony of the first

1 Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,

and/or Andrew Charles Williams in the commission of this offense. 2 See Note 1 3 Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,

and/or Bonnie June Metz in the commission of this offense. 4 See Note 3 5 See Note 3 6 See Note 3 7 See Note 3 8 Morlock was also charged with aiding and abetting Clayton Justin Smart and Mary Ann Soliday,

in the commission of this offense. Stark County, Case No. 2023 CA 00024 3

degree, in violation of R.C. 2907.02(A)(2)(B)9; Gross Abuse of a Corpse, a felony of the

fifth degree, in violation of R.C. 2927.01(B)/(C)10; and Tampering with Evidence, a felony

of the third degree, in violation of R.C. 2921.12(A)(1)(2)(B).11

{¶3} At trial, Clayton Smart [Clayton], Morlock’s co-defendant, testified on behalf

of the state in exchange for a reduced sentence of 30 to 35 years for pleading to

involuntary manslaughter, three counts of kidnapping, aggravated robbery, grand theft of

a motor vehicle, felonious assault, gross abuse of a corpse, and tampering with evidence.

3T. at 64-6512. Andrew Williams [Andrew], also a co-defendant, testified on behalf of the

state as part of a plea negotiation wherein he would receive a sentence of 12 to 15 years

for pleading to involuntary manslaughter, tampering with evidence, and gross abuse of a

corpse. 2T. at 156-157. Jordan McWeeny [Jordan], a co-defendant of Morlock’s testified

on behalf of the state as part of a plea bargain wherein the state will drop the charge for

tampering with evidence and recommend one year of probation for pleading to gross

abuse of a corpse. 2T. at 97-98.

The Kidnapping and Aggravated Robbery of Buddy Myers, and the Grand Theft

of His Car

{¶4} In May, 2022, Morlock lived in a small house on Correll Avenue Northeast,

in Canton, Ohio, along with his girlfriend Bonnie Metz [Bonnie], Clayton, and Clayton's

girlfriend Mary Soliday [Mary]. 1T. at 239-240, 248, 327; 2T. at 60-61; 3T. at 66, 68.

9 See Note 8 10 See Note 1 11 See Note 1 12 For clarity, the transcript of Morlock’s jury trial will be referred to as “__T.__” signifying the volume

and page number. Stark County, Case No. 2023 CA 00024 4

{¶5} On May 5, 2022, Morlock and Bonnie argued over her allegations that her

ex-boyfriend and father of her children, Buddy Myers [Buddy], had raped her one time

while Morlock was away. 3T. at 68. Clayton testified that, in response to these allegations,

the group devised a plan to lure Buddy to the house, so they could "talk about it and then

go from there." 3T. at 68. Clayton claimed the phrase "go from there" meant Morlock

wanted to kill Buddy, which was the "ultimate plan[.]” 3T. at 68-69, 76, 117.

{¶6} Mary texted Buddy that she wanted to have sex with him and asked him to

come to the Correll house. 1T. at 247-248; 3T. at 69. Buddy came to the house and

followed Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's

bedroom. 1T. at 249-250, 265; 3T. at 69-70, 105-106. Buddy soon noticed some shadows

in the back hallway and tried to leave the house, only to be confronted by Clayton, who

was now standing in front of the doorway and holding a gun to Buddy's head. 1T. at 253-

255, 258, 265-266; 3T. at 69, 71, 106. Clayton told Buddy to sit on the nearby futon and

to give him everything he had on him, so Buddy surrendered his cell phone, wallet, and

car keys. 1T. at 254; 3T. at 71-72, 106. Morlock, Mary, and Bonnie all entered the room

while Buddy was on the futon. 1T. at 255-256; 3T. at 71. Morlock asked Buddy if he could

use his car to go to the store, though neither Buddy nor Clayton believed Buddy really

had a choice in the matter, as he was being held at gunpoint. 1T. at 256-257; 3T. at 72-

73. Morlock took Buddy's car keys and drove his car to the Circle K. 1T. at 256-257; 3T.

at 72. When Morlock returned, Clayton gave the gun to Mary and told her to shoot Buddy

if he moved. 1T. at 256-258; 3T. at 73-74, 106. Clayton searched Buddy's car, found a

pair of silver handcuffs, and then used them the handcuff Buddy to a metal dog leash that

Mary had tied around the futon. 1T. at 258-260, 266; 3T. at 73-75, 106. Stark County, Case No. 2023 CA 00024 5

{¶7} While holding the now-restrained Buddy at gunpoint, Morlock and Clayton

both interrogated him about the rape allegations for perhaps ten to fifteen minutes, though

Buddy recalled it lasting for what seemed like forever. 1T. at 257, 267. They kept

repeating the same questions, and Buddy feared for his life and just wanted to leave. 1T.

at 257, 260.

{¶8} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove

his car to a local restaurant, where they stole the stereo system out of it and abandoned

the vehicle. 1T. at 260; 3T. at 75. Clayton later sold the stereo system. 3T. at 76. He

testified that once he and Mary left with the car, Morlock was supposed to kill Buddy. 3T.

at 118.

{¶9} After Clayton and Mary left, Buddy asked Morlock if he could leave. 1T. at

261. Morlock said he could not hold Buddy against his will. 1T. at 261, 267. Buddy then

broke the chain on his own, escaped, and ran to his grandma's house to call the police

and then took police back to where he was held. 1T. at 261-262.

{¶10} At approximately 1:48 A.M. on May 5, 2022, Canton Police Officers were

dispatched to a residence located on Alexander Place Northeast in Canton, Ohio in

response to a report called in by OnStar Navigation Services for a stolen vehicle, and an

individual being handcuffed and held against his will. 1T. at 236-237. As Officer Brandon

Shackle and his partner Officer David Grant arrived at the residence, they located the

victim, Buddy Myers, exiting the home. 1T. at 237. Officer Shackle noted that Buddy had

a silver handcuff on his left wrist. Id. Buddy told the officers that Morlock, Clayton, Mary,

and Bonnie were all responsible for the incident. 1T. at 242-243. Following Buddy’s

directions, Officer Shackle and Officer Grant drove to the residence located at 616 Correll Stark County, Case No. 2023 CA 00024 6

Avenue Northeast, Canton, Ohio. 1T. at 239-240. Officer Shackle testified that no one

answered the door when he knocked, no lights were on in the residence, no movement

was heard inside, and Buddy’s vehicle was not parked anywhere in the immediate area

of the residence. 1T. at 240.

The murder of Joseph Pomeroy

{¶11} Pomeroy moved in to live with the others at the Correll house on the 6th or

7th of May, 2022. 3T. at 80. According to Clayton, problems soon occurred as "things

came up missing." 3T. at 80. Clayton's drugs and money, Morlock's tablet, Andrew’s cell

phone, and some other items all disappeared from the house, and they believed Pomeroy

stole them. 3T. at 80, 107-108, 118. Clayton and Morlock were both angry and upset that

their property was missing. 3T. at 81, 108, 118.

{¶12} Clayton testified that on May 8, 2022, he, Morlock, Mary, and Andrew all

went to an abandoned house where they believed they would find Pomeroy. 3T. at 80-

81, 109. The group then dragged Pomeroy into the basement of a nearby apartment,

inhabited by a man named Rob. 2T. at 160, 170-171; 3T. at 81-83, 87-88. Andrew testified

that he did not join the group until they had Pomeroy in the basement of the apartment

located at Ninth and McKinley in Canton, Ohio. 2T. at 160-161. Clayton testified that

everybody agreed to kill Pomeroy. 3T. at 82.

{¶13} Clayton testified they all started beating up Pomeroy with their fists at first,

but then Morlock hit Pomeroy with a brick. 3T. at 83-84. Clayton and Mary also hit

Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on

his fingers and back. 3T. at 84, 92. Clayton testified that Pomeroy died in that basement,

and that he was dead before Morlock left. 3T. at 85, 110. Stark County, Case No. 2023 CA 00024 7

{¶14} Andrew testified that Clayton called him that day because he had an

emergency and needed Andrew to come to the apartment at Ninth Street and McKinley.

2T. at 159-161, 176. Andrew went into the basement, where he saw Morlock, Clayton,

Mary, and Rob, as well as Pomeroy on a tarp on the floor. 2T. at 161-163, 166, 176.

Pomeroy was bleeding from his head and had obviously been beaten up, but was sitting

up and was still moving. 2T. at 163, 165-166, 176. Andrew then joined Morlock, Clayton,

Mary, and an individual named “Rob” in continuing to assault Pomeroy. 2T. at 163-164,

166, 177. Andrew recalled specifically seeing Morlock striking Pomeroy. 2T. at 174-175,

181. He also saw Mary holding a machete, but was unsure if she ever used it in his

presence, though he later observed a laceration on Pomeroy’s back. 2T. at 164, 177.

{¶15} At one point, Andrew struck Pomeroy in the ribs and then went upstairs to

smoke methamphetamine with a few others who were already up there. 2T. at 164-166.

Morlock remained in the basement when Andrew went upstairs, but he too went upstairs

and left at some point. 2T. at 165-166, 177, 180. Shortly after Morlock left, Rob came

upstairs to smoke methamphetamine with Andrew. 2T. at 166. Andrew testified that

Morlock came upstairs when Andrew was upstairs smoking meth. 2T. at 177. When

Andrew returned to the basement, Pomeroy was no longer moving and did not appear to

be breathing, so Andrew believed he was either unconscious or likely already dead. 2T.

at 166.

{¶16} Clayton, Andrew, and Mary all wrapped up Pomeroy's body in a blanket and

tarp, and secured it with a chain, an HDMI cord, a USB cord, some rope, bungee cords,

and duct tape. 1T. at 314-315, 318-320; 2T. at 166-167, 171, 178; 3T. at 85-86, 88-89,

110. They cleaned all the blood in the basement with a mop, bleach, dish soap, and water. Stark County, Case No. 2023 CA 00024 8

2T. at 166-167, 178-179; 3T. at 87. They put the cleaning materials into a black trash bag,

along with the brick, broken pieces from the brick, some gloves, and Clayton's blood-

covered shoes. 2T. at 167; 3T. at 86-87, 91.

{¶17} After wrapping the body and cleaning the basement, Andrew called Jordan

for a ride. 2T. at 99-100, 114, 167, 179; 3T. at 89. Jordan testified that he received a

"weird" phone call from Andrew asking for a ride, in which Andrew said, "Once was

beating, now is not; I need a ride." 2T. at 100-101. Because he considered Andrew to be

"family," Jordan agreed to meet Andrew at his "uncle's house" at Ninth and McKinley. 2T.

at 101-103, 114.

{¶18} Jordan arrived in his white Chevy HHR, and parked on the side of the

building. 2T. at 103-105, 168; 3T. at 90. Clayton, Andrew, and Mary all brought Pomeroy’s

body up the stairs and outside. 2T. at 168, 170; 3T. at 91. Clayton approached Jordan

and said, "No matter what happens don't get out of the car or I'll kill your wife and your

daughter." 2T. at 104, 114. Clayton then told Andrew that if he had any doubts about

Jordan's ability to help get rid of the body he would just "end him" right there. 2T. at 169.

Clayton said, "If you don't think he can do it, I'll just do it myself." 2T. at 179-180. Andrew

replied, “No, don’t do that. I'll be here with him." 2T. at 169. Clayton and Andrew placed

Pomeroy's body in the back seat, along with the black trash bag. 2T. at 105-107, 168; 3T.

at 91. Morlock returned to the scene around this time. 3T. at 89.

{¶19} Andrew got into the HHR and told Jordan to drive to his grandma's pig farm

in Louisville, Ohio. 2T. at 107. Jordan refused, however, and they instead first drove to

Andrew's cousin's house at 17th and St. Elmo, where they stayed for about ten minutes.

2T. at 107-108, 116-118. They then drove to a sand and gravel pit to dispose of the body, Stark County, Case No. 2023 CA 00024 9

but too many people were there, so Andrew told Jordan to keep driving. 2T. at 108-109,

117-118. While traveling just past the intersection of 12th and Hardington, Andrew told

Jordan to stop the vehicle. 2T. at 110-111, 118. Andrew jumped out of the vehicle,

removed Pomeroy's body from the car, and dumped it off the side of the road. 2T. at 111,

172-173. They drove away, and Andrew later discarded the trash bag. 2T. at 112, 174.

{¶20} On the evening of May 10, 2022, Deputy D'Metre House of the Stark County

Sheriff's Office was dispatched to Hardington Avenue after two citizens reported finding

a body wrapped up in a ditch on the side of the road. 1T. at 269-274. Detective Derek

Little of the Stark County Sheriff’s Office also responded to the scene. 1T. at 311-313. At

some point, Detective Little recognized Pomeroy and positively identified his body. 1T. at

31-32.

The Kidnapping, Felonious Assault, and Rape of Blake Waldrup

{¶21} Mary's ex-boyfriend Blake Waldrup [Blake] used to live with her and several

others in an apartment on Ninth Street. 1T. at 281-283, 303; 3T. at 93. Clayton moved in

with them at some point and he began "seeing" Mary. 1T. at 283-284, 304; 3T. at 67.

Mary told Clayton that Blake used to beat her and was very abusive, which upset Clayton.

3T. at 93. Blake and Clayton got into an argument and fist fight one day and, after Blake

threw Clayton onto the ground and "embarrassed" him, Clayton retreated to the kitchen

to retrieve a knife. 1T. at 284-285, 304; 3T. at 67-68, 111. Blake ran out the door and left

his belongings behind, effectively moving out of the apartment for good. 1T. at 284-286;

3T. at 67-68, 111.

{¶22} According to Clayton, he devised a plan sometime later with both Mary and

Morlock to lure Blake to the Correll house. 3T. at 93. Mary's birthday is May 10th, and Stark County, Case No. 2023 CA 00024 10

Clayton testified that Mary wanted to get Blake over to the Correll house as a "birthday

present." 2T. at 24; 3T. at 100. On the evening of May 9th, Mary told Blake that she

wanted to be with him and asked him to come to the Correll house; Mary and a mutual

friend named Noah (aka "Country") met up with Blake in a park prior to heading to the

house. 1T. at 286-287, 304-305; 3T. at 93-94, 111. When Blake eventually arrived and

entered the house, Clayton held him at gunpoint. 3T. at 95. Clayton pistol-whipped Blake

repeatedly, and then Clayton, Mary, and a man named Kris all took Blake down into the

basement and continued beating him; Morlock soon joined them and participated in the

beatings. 1T. at 288-289; 3T. at 94-95, 112, 118-119. Waldrup testified the individuals in

the house were Mary, Clayton, and Morlock. 1T. at 289.

{¶23} Blake testified he was then taken to the basement of the house where he

was beaten with a tire iron, machete and a ratchet with a socket attached. 1T. at 289-

290; 3T. at 96. Blake further testified that while he was in the basement his hands were

tied behind his back, then he was tied to the ceiling and beaten with a tire iron. 1T. at 290-

291. Blake testified that while he was in the basement he saw Morlock only twice and that

Morlock put a sex toy in Blake’s rectum. 1T. at 291; 3T. at 98. Morlock also shot Blake

with some type of gel blaster BB gun. 3T. at 119, 122.

{¶24} Blake testified that Mary and Clayton had sex in front of him and that Clayton

would use a big torch to burn Blake so he could stop his wounds from bleeding. 1T. at

292, 294. Waldrup also stated that Clayton tried to cut his right ear off with the machete.

Id. at 293.

{¶25} At one point, Blake managed to untie himself, which angered both Clayton

and Morlock, so they "beat [him] to hell" and tied him up again. 1T. at 300-301; 3T. at 97- Stark County, Case No. 2023 CA 00024 11

98. This time, they tied his arms behind his back, tied his feet together, and hung him in

the air from the rafters, face down. 1T. at 290; 3T. at 98. Mary wrote a note on a sheet of

paper and taped it up in the basement room where Blake was being held captive. 3T. at

97. The note read: "What did Mary ever do to deserve everything you did to her?" 2T. at

198; 3T. at 97; State’s Exhibit 18.

{¶26} Blake spent two to three months in the hospital afterward and endured many

surgeries. 1T. at 301. He was not able to speak or walk, so he required rehab, physical

therapy, and verbal therapy. 1T. at 302. At the time of trial, Blake still had scars on his

ankles and could not feel his feet. 1T. at 293, 295. Blake admitted that he was "in and

out" of consciousness throughout the ordeal due to his injuries, but he specifically recalled

seeing Morlock at least "twice" or "a few times"; he remembered Morlock beating and

hurting him more than once, hitting him with the dildo, inserting the dildo into his rectum,

and helping to tie him up and hang him from the rafters. 1T. at 291, 296-297, 306-308.

{¶27} During Detective Little's interview of Morlock on May 13, 2023, Morlock

stated he doesn't go in the basement and didn't know anything about anyone being in the

basement because he's not home much. 1T. at 335-336.

The police investigations

{¶28} Dr. Alison Krywanczyk, the Deputy Medical Examiner at the Cuyahoga

County Medical Examiner's Office, performed the autopsy on Pomeroy’s body and

testified as an expert at trial. 2T. at 122-128, 147. Dr. Krywanczyk testified that the cause

of Pomeroy’s death was blunt and sharp force injuries. 2T. at 147. Based on the autopsy

report, the Stark County Coroner determined Pomeroy's death to be a homicide. 2T. at

130-131, 148. Stark County, Case No. 2023 CA 00024 12

{¶29} While investigating Pomeroy's death, Detective Little spoke to Pomeroy's

probation officer and learned about a recent phone call from Buddy, who said he had

been robbed by Morlock, Clayton, and Mary, and that they stole his car. 1T. at 325-326,

347-348. Pomeroy's ex-girlfriend [Chastity] permitted the police to search through her cell

phone because Pomeroy often used it to communicate with people. 1T. at 326-327. The

police found a text message on her phone referencing a huge fight amongst several

people, in which Morlock was mentioned by name. 1T. at 327. Detective Little also read

a Canton police report and learned that Morlock lived at the Correll house with his

girlfriend, Bonnie, who was currently in jail. 1T. at 327-328. The police then listened to jail

calls between Morlock and Bonnie. 1T. at 328-332. In one call, they learned that Morlock

kicked Pomeroy out of the Correll house on either May 7th or 8th. 1T. at 329; State’s

Exhibit 45. In another call, Morlock said that he kicked Pomeroy out because he stole

from them, and that Pomeroy "got beat up real good" and "got fucked up pretty good."

1T. at 330-331.

{¶30} Taylor Loy works for the Adult Parole Authority and was Morlock's parole

officer at the time. 2T. at 58-60. She received a phone call regarding an alleged

kidnapping and robbery of Buddy that occurred at Morlock's house on Correll, which she

confirmed with the police report. 2T. at 61. In response, she coordinated a May 13th home

visit and search of the Correll house with multiple agencies. 2T. at 60. Lucas Shanklin of

the Jackson Police Department and Stark County Sheriff’s Office was one of the officers

assisting Loy that day. 2T. at 30-31. He testified that, due to the robbery complaint against

Morlock, there was a concern that firearms were in the house. 2T. at 31-32. Officer John Stark County, Case No. 2023 CA 00024 13

Korchnak of the Canton Police Department also assisted that day and initially helped to

set up a perimeter around the house. 2T. at 45-48.

{¶31} The police and parole officers first made contact only with Mary at the

Correll house. 2T. at 34, 63. Mary came outside and said Morlock was not there, but also

said they were welcome to come inside and look for him. 2T. at 63-64. Mary talked in

circles, did not make much sense, and repeatedly denied that anyone else was in the

house; but she ultimately admitted that her boyfriend, Clayton, was upstairs. 2T. at 34,

64. Clayton was soon found hiding in an upstairs closet with a loaded gun, but officers

were able to drag him out of the closet by his feet and arrest him. 1T. at 347; 2T. at 36-

38, 43-44, 66; 3T. at 101, 114-115.

{¶32} While conducting a protective sweep of the house for anyone else who

might be hiding, Officer Korchnak asked Loy if the basement had been cleared yet, and

she said no. 2T. at 49. The officers observed that the door to the basement had a silver,

metal slide lock on it. 2T. at 50, 66- 67, 70-71. They unlocked the door and proceeded

down into the dark, "deplorable" basement, which had no windows and very dim lighting.

2T. at 50-52, 66-67, 196. Loy was wearing her body cam at the time, and the body cam

footage was entered into evidence. 2T. at 69-71; State’s Exhibit 32. The officers soon

came across a wooden door in the basement that was not on any hinges, but was simply

propped up or jammed in front of an opening into a small, cellar room. 2T. at 51-53, 67,

196-197. Inside that room, Officer Korchnak was the first to observe what he thought was

a deceased male lying on the floor, covered by a blanket, and not moving; he promptly

notified the others. 2T. at 40, 53-54, 56, 68. Just then, Blake, the body lying on the floor,

gasped for air and woke up, though he could not speak clearly or coherently. 2T. at 54, Stark County, Case No. 2023 CA 00024 14

68-69. As they tried standing Blake upright, he jerked back with his left hand and removed

a dildo from his rectum. 2T. at 55-56, 69. Blake was ushered outside and, although the

officers struggled to understand him, Officer Korchnak recalled hearing Blake mumbling

the phrase, "They wouldn't let me go." 2T. at 56, 71. They eventually identified Blake

and transported him to the hospital. 2T. at 57, 69. They informed the officers investigating

Pomeroy's death that another victim with similar injuries had been found. 1T. at 332.

{¶33} The officers sought and obtained a search warrant for the house. 1T. at 333,

347; 2T. at 57. While awaiting the warrant, Mary informed the police that Morlock could

be found near Ninth and McKinley. 2T. at 42, 72. Officers went to that area and, after a

brief foot pursuit, they cornered Morlock in an apartment building and he surrendered. 2T.

at 43, 72-74, 77-81.

{¶34} Detective Little and Detective Mark Diels of the Canton Police Department

interviewed Morlock on May 13th and May 16th. 1T. at 334-337; 2T. at 89-90. Detective

Little testified that Morlock told him that the last time he had seen Pomeroy was

approximately two months prior. 1T. at 335.

{¶35} Detective Little testified that he again spoke to Morlock on May 16, 2023.

Morlock told the detective that Pomeroy had been staying at his house for five days but

that he had to kick him out because Pomeroy stole from him. 1T. at 336-337.

{¶36} Detective Little testified Morlock then said he last saw Pomeroy in the

basement at a house on Ninth and McKinley. 1T. at 337. Detective Little also testified that

Morlock told him Mary, Clayton, and Andrew were also present in the basement with

Pomeroy and that they were beating Pomeroy up pretty good, hitting him, and kicking him

all over his body. 1T. at 337-338. Stark County, Case No. 2023 CA 00024 15

{¶37} Detective Little testified a search warrant was obtained for the home on

Ninth and McKinley and that during the search a box of gloves and a partially used roll of

duct tape were found on a coffee table in the basement. 1T. at 341-342. Upon cross

examination, Detective Little testified that Morlock denied having anything to do with

Pomeroy. 1T. at 345-346.

{¶38} Andrew's name came up during the interviews, and the police learned that

a vehicle was involved. 1T. at 338. During an interview with Andrew, he told police exactly

where they could find the Chevy HHR that was involved. 1T. at 339, 348. Police searched

the HHR on May 25th and found some cords on the back floorboard that matched the

cords found wrapped around the tarp and Pomeroy's body. 1T. at 339-340.

{¶39} On January 1, 2023, Detective Diels received information that more

evidence was possibly still inside the Correll house. 2T. at 85. Detective Diels learned

that the machete and hatchet were possibly concealed inside of a basement wall, so he

returned to the house and retrieved the evidence. 2T. at 86-88, 91-93.

The jury’s decision

{¶40} The jury ultimately found Morlock guilty of murder (count 2), kidnapping

(count 3), aggravated robbery (count 4), grand theft of a motor vehicle (count 5),

kidnapping [to terrorize, or to inflict serious physical harm on the victim] [Blake Waldrup],

(count 6), felonious assault (count 8), and rape (count 9). They found him not guilty of

aggravated murder (count 1), kidnapping [to engage in sexual activity] [Blake Waldrup]

(count 7), gross abuse of a corpse (count 10), and tampering with evidence (count 11). Stark County, Case No. 2023 CA 00024 16

Morlock’s Sentence

{¶41} On January 24, 2023, the trial judge sentenced Morlock to an aggregate

prison term of forty-three years to life, and ordered him to pay $5,417.00 in restitution. On

April 6, 2023, the court re-sentenced Morlock to the same sentence, but also classified

him as a Tier III sex offender and properly notified him of his registration requirements.

Assignments of Error

{¶42} Morlock raises four Assignments of Error,

{¶43} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN CONVICTIONS AGAINST APPELLANT THEREFORE THE CONVICTIONS

MUST BE REVERSED.

{¶44} “II. THE APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.

{¶45} “III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION.

{¶46} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED

$5,417 IN RESTITUTION TO BUDDY MYERS WITHOUT HOLDING A RESTITUTION

HEARING TO PROVIDE PROOF OF ECONOMIC LOSS BY A PREPONDERANCE OF

THE EVIDENCE AS REQUIRED BY STATUTE.”

I.

{¶47} In his First Assignment of Error, Morlock argues that his convictions for

murder [Pomeroy] (count 2), kidnapping [Buddy Myers] (count 3), aggravated robbery Stark County, Case No. 2023 CA 00024 17

[Buddy Myers] (count 4), and grand theft [Buddy Myers] (count 5) are not supported by

sufficient evidence.

Standard of Appellate Review

{¶48} The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,

136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence

involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30; State v. Jordan, Slip Op. No. 2023-

Ohio-3800, ¶13. “This naturally entails a review of the elements of the charged offense

and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-

Ohio-8448, 84 N.E.3d 993, ¶13.

{¶49} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,

2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not Stark County, Case No. 2023 CA 00024 18

second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,

[the evidence] would convince the average mind of the defendant's guilt beyond a

reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),

quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will

not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light most

favorable to the prosecution, the evidence, if believed, would convince the average mind

that Morlock was guilty beyond a reasonable doubt of the murder of Pomeroy

{¶50} Morlock was convicted of murder in violation of R.C. 2903.02(A), which

states, “No person shall purposely cause the death of another or the unlawful termination

of another's pregnancy.” The cause of Pomeroy’s death was blunt and sharp force

injuries. 2T. at 147. Based on the autopsy report, the medical examiner concluded

Pomeroy's death was a homicide. 2T. at 130-131, 148.

{¶51} R.C. 2901.22 Culpable mental states, provides:

(A). A person acts purposely when it is his specific intention to cause

a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is his specific intention to engage in conduct of that

nature. Stark County, Case No. 2023 CA 00024 19

{¶52} Morlock was also charged with aiding and abetting Clayton Justin Smart,

Mary Ann Soliday, and/or Andrew Charles Williams in the commission of this offense.

R.C. 2923.03(A)(2) Complicity provides, in relevant part,

(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense;

{¶53} Anyone complicit in the commission of an offense by aiding and abetting

the principal offender "shall be prosecuted and punished as if he were a principal

offender." R.C. 2923.03(A)(2)/(F). The instructions given the jury in the case at bar

properly permitted the jury to find Morlock guilty of murder based on a finding that he

aided and abetted his codefendants in the commission of murder, and therefore was

complicit in the commission of the murder.

{¶54} It is true that a person’s mere association with a principle offender is not

enough to sustain a conviction based on aiding and abetting. State v. Sims, 10 Ohio

App.3d 56, 58, 460 N.E.2d 672, 674-675 (8th Dist. 1983); State v. Paskins, 5th Dist.

Fairfield No. 2021 CA 00033, 2022-Ohio-4024, ¶26. With respect to the requirements for

a conviction for aiding and abetting, the Supreme Court of Ohio has stated,

To support a conviction for complicity by aiding and abetting pursuant

to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the Stark County, Case No. 2023 CA 00024 20

criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, at syllabus.

{¶55} Aiding and abetting may be shown by both direct and circumstantial

evidence and participation may be inferred from presence, companionship, and conduct

before and after the offense is committed. Paskins, ¶27, citing State v. Cartellone, 3 Ohio

App.3d 145, 150, 444 N.E.2d 68, (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d

29, 34, 273 N.E.2d 884 (4th Dist. 1971); See also, State v. Mendoza, 137 Ohio App.3d

336, 342, 738 N.E.2d 822 (3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561,

568–569, 690 N.E.2d 1342 (4th Dist. 1997).

{¶56} Aiding and abetting may also be established by overt acts of assistance

such as driving a getaway car or serving as a lookout. Paskins, ¶28, citing State v.

Cartellone, 3 Ohio App.3d at 150, 444 N.E.2d 68. See also, State v. Trocodaro, 36 Ohio

App.2d 1, 301 N.E.2d 898 (10th Dist. 1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005-

Ohio-1308, 825 N.E.2d 1158, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017

CA 00129, 2018-Ohio-1372, 2018 WL 1747931, ¶56.

{¶57} “The court must view the evidence in the light most favorable to the

prosecution and defer to the trier of fact on questions of credibility and the weight assigned

to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶

146.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State

v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶29.

{¶58} Morlock’s sole argument on appeal centers upon his contention that the

state failed to present sufficient evidence that he purposely caused the death of Pomeroy. Stark County, Case No. 2023 CA 00024 21

[Appellant’s brief at 16]. He further argues that "no testimony" was presented to establish

that he acted with purpose to kill Pomeroy. [Id.]

{¶59} Contrary to Morlock’s arguments, sufficient evidence was presented to

prove beyond a reasonable doubt that Morlock aided and abetted his co-defendants in

the murder of Pomeroy.

{¶60} Evidence was presented that Morlock, Clayton and Andrew were angry at

Pomeroy because they believed he had stolen property belonging to them while living at

the Correll house. Evidence was presented that Clayton, Morlock, Mary, and Andrew all

went to an abandoned house where they believed they would find Pomeroy. 3T. at 80-

81, 109. The group then dragged Pomeroy into the basement of a nearby apartment,

inhabited by a man named Rob. 2T. at 160, 170-171; 3T. at 81-83, 87-88. Clayton testified

that everybody agreed to kill Pomeroy. 3T. at 82.

{¶61} Clayton testified they all started beating up Pomeroy with their fists at first,

but then Morlock hit Pomeroy with a brick. 3T. at 83-84. Clayton and Mary also hit

Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on

his fingers and back. 3T. at 84, 92. Clayton testified that Pomeroy died in that basement,

and that he was dead before Morlock left. 3T. at 85, 110.

{¶62} Even if Morlock had left the basement before Pomeroy was dead, the

evidence establishes that he was present and participated in the beating of Pomeroy with

the others. Morlock not only witnessed the others throwing bricks at Pomeroy, he himself

hurled them at Pomeroy.

{¶63} The trier of fact may infer an intention to kill from the surrounding

circumstances where the natural and probable consequence of a defendant’s actions is Stark County, Case No. 2023 CA 00024 22

to produce death. State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517(1954), paragraph

five of the syllabus. The testimony of the medical examiner established that Pomeroy had

several skull fractures. Thus, the natural and probable consequences of three people

hurling bricks at a defenseless person’s head is to produce death. It matters not whether

Morlock was actually in the room when Pomeroy died as the result of the severe beatings

inflicted by each one of the participants. Morlock was not an innocent bystander who

merely happened along; he was a willing participant.

Where only such unlawful act was contemplated in the original

conspiracy, although not identical with or similar to the criminal act charged,

if the conspired unlawful act and the manner of its performance would be

reasonably likely to produce death, each conspirator is equally guilty with

the principal offender, as an aider and abettor in the homicide, although

such aider and abettor was neither present nor had knowledge of the

physical killing or of the weapon used.

State v. Doty, 94 Ohio St. 258, 113 N.E. 811(1916), syllabus at para. 2. See also, State

v. Black, 103 Ohio St. 434, 441, 133 N.E. 795, 797(1921); State v. Hickman, 5th Dist.

Stark No. 2003-CA-00408, 2004-Ohio-6760, ¶62,

{¶64} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Morlock did at the very least aid and abet another in the commission of murder. We hold,

therefore, there was sufficient evidence to support Morlock’s conviction for the offense of

Murder. Stark County, Case No. 2023 CA 00024 23

Issue for Appellate Review: Whether, after viewing the evidence in the light most

favorable to the prosecution, the evidence, if believed, would convince the average mind

that Morlock was guilty beyond a reasonable doubt of the kidnapping, aggravated

robbery, and grand theft with respect to Buddy Myers.

{¶65} Morlock next contends that the state did not present sufficient evidence to

prove beyond a reasonable doubt that Morlock aided or abetted in the commission of

Kidnapping, Aggravated Robbery, or Grand Theft with respect to Buddy Myers.

{¶66} Morlock was charged with kidnaping in violation of R.C. 2905.01(A)(2),

(A) No person, by force, threat, or deception, ... by any means, shall

remove another from the place where the other person is found or restrain

the liberty of the other person, for any of the following purposes:

(2) To facilitate the commission of any felony or flight thereafter;

{¶67} Morlock was further convicted of aggravated robbery in violation of R.C.

2911.01(A)(1) provides,

(A) No person, in attempting or committing a theft offense, as defined

in section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender’s person or under

the offender’s control and either display the weapon, brandish it, indicate

that the offender possesses it, or use it;

{¶68} Finally, with respect to Buddy, Morland was convicted of Grand theft of a

Motor Vehicle in violation of R.C. 2913.02(A)(1) provides, Stark County, Case No. 2023 CA 00024 24

(A) No person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or

services in any of the following ways:

(1) Without the consent of the owner or person authorized to give

consent;

{¶69} Morlock was also charged with aiding and abetting Clayton, Mary, and/or

Bonnie June Metz in the commission of these offenses.

{¶70} Evidence was presented that Morlock and Bonnie argued over her

allegations that her ex-boyfriend and father of her children, Buddy had raped her one time

while Morlock was away. 3T. at 68. Morlock, Clayton, Mary and Bonnie devised a plan to

deceive Buddy into believing Mary wanted to have sex with him in order to lure Buddy to

the home to exact revenge. Buddy fell for the deception, came to the house and followed

Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's bedroom.

{¶71} Clayton held a gun to Buddy’s head and told him to give him everything he

had on him. Buddy surrendered his cell phone, wallet, and car keys. Mary and Morlock

were present when these events transpired. While holding Buddy at gunpoint, Morlock

and Clayton both interrogated him about the rape allegations for perhaps ten to fifteen

minutes. Evidence was presented that Buddy feared for his life and just wanted to leave.

{¶72} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove

his car to a local restaurant, where they stole the stereo system out of it and abandoned

the vehicle. 1T. at 260; 3T. at 75. Clayton later sold the stereo system. 3T. at 76. Buddy’s

car was never returned to him. Stark County, Case No. 2023 CA 00024 25

{¶73} The evidence presented was that Morlock willingly participated in the

deception, detention and theft. Morlock was aware that Clayton had a gun that he used

to threaten Buddy into compliance. Morlock concedes that his codefendants restrained

B u d d y’ s liberty and forcibly took his vehicle. Contrary to Morlock’s assertions evidence

was presented that he was in a bedroom with his codefendants in a plan to confront Buddy

about the rape allegations, he questioned Buddy while Buddy was handcuffed to the futon

and was being threatened with a gun. The entire reason Buddy was lured to the residence

was Morlock was angry because Bonnie told him Buddy had raped her one time while

Morlock was away.

{¶74} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Morlock did at the very least aid and abet another in the commission of kidnapping,

aggravated robbery and grand theft of a motor vehicle. We hold, therefore, there was

sufficient evidence to support Morlock’s conviction for the offenses of kidnapping,

aggravated robbery and grand theft of a motor vehicle.

{¶75} For the forgoing reasons, Morlock’s First Assignment of Error is overruled.

II.

{¶76} In his Second Assignment of Error, Morlock argues his convictions are

against the manifest weight of the evidence. Stark County, Case No. 2023 CA 00024 26

Standard of Appellate Review – Manifest Weight

{¶77} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

{¶78} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with

the fact finder’s resolution of the conflicting testimony. State v. Jordan, Slip Op. No. 2023-

Ohio-3800; Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42,

102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation marks omitted); State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244, ¶25, citing Thompkins.

{¶79} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “‘the jury 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, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment

below is manifestly against the weight of the evidence, every reasonable intendment and Stark County, Case No. 2023 CA 00024 27

every reasonable presumption must be made in favor of the judgment and the finding of

facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-

2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at

191–192 (1978).

{¶80} As one Court has explained,

When faced with a manifest weight of the evidence challenge, we

must consider whether the state “carried its burden of persuasion” before

the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;

see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the

burden of production, which concerns a party’s duty to introduce enough

evidence on an issue, the burden of persuasion represents a party’s duty to

convince the factfinder to view the facts in his or her favor. Messenger at ¶

17. Therefore, in order for us to conclude that the factfinder’s adjudication

of conflicting evidence ran counter to the manifest weight of the evidence—

which we reserve for only the most exceptional circumstances—we must

find that the factfinder disregarded or overlooked compelling evidence that

weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-

388, 678 N.E.2d 541 (1997). We accordingly sit as a “thirteenth juror” in this

respect. Id.

State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.

{¶81} Further, to reverse a jury verdict as being against the manifest weight of the

evidence, a unanimous concurrence of all three judges on the court of appeals panel Stark County, Case No. 2023 CA 00024 28

reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio

Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4,

citing Thompkins at paragraph four of the syllabus.

Issue for Appellate Review: Whether the jury clearly lost their way and created

such a manifest miscarriage of justice that the convictions must be reversed and a new

trial ordered

{¶82} Morlock makes two arguments in support of his contention that the jury

clearly lost their way and created a manifest miscarriage of justice by convicting him. First,

Morlock contends that the testimony was contradictory between Clayton and Andrew.

Specifically, Morlock challenges the testimony that Pomeroy was dead before Morlock

left the basement.

{¶83} As we noted in our disposition of Morlock’s First Assignment of Error,

because he was also charged with aiding and abetting, it does not matter whether he was

present at the time Pomeroy expired. Testimony was presented, and not refuted, that

Morlock joined in when the codefendants were hurling bricks at the helpless victim. He

was aware of the actions of his codefendants and noted his acceptance of their actions

by joining in with their beating of Pomeroy. It matters not which one threw the brick that

fractured Pomeroy’s skull; rather, each individual is responsible for the death.

{¶84} Further, the jury was instructed,

You are not required to believe the testimony of any witness simply

because the witness was under oath. You may believe or disbelieve all or

any part of the testimony of any witness. It is your duty to decide what Stark County, Case No. 2023 CA 00024 29

testimony to believe and what testimony not to believe. The testimony of

one witness believed by you is sufficient to prove any disputed fact.

3T. at 160.

{¶85} Morlock next challenges the fact that the police did not investigate other

individuals.

{¶86} “Nothing in the record indicates what kind of testimony [the witnesses] could

have provided. Establishing that would require proof outside the record, such as affidavits

demonstrating the probable testimony. Such a claim is not appropriately considered on a

direct appeal.” State v. Madrigal, 87 Ohio St.3d 378, 390–391, 721 N.E.2d 52, 65 (2000)

(rejecting claim of ineffectiveness for counsel’s failure to utilize an expert on eyewitness

identification); State v. Carter, 89 Ohio St.3d 593, 606, 734 N.E.2d 345, 357(2000)

(rejecting claim of ineffectiveness for counsel’s failure to pursue MRI testing in the penalty

phase). There is nothing in the record from which we can determine whether such

evidence would have been favorable to Morlock and caused the outcome of the trial to

be different. State v. Coleman, 45 Ohio St.2d 298, 307-308, 544 N.E.2d 622(1989).

{¶87} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated

by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355; State v. Issa, 93

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001), quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist. 1983). Based upon the entire record in this matter we find

Morlock's convictions are not against the manifest weight of the evidence. To the contrary, Stark County, Case No. 2023 CA 00024 30

the jury appears to have fairly and impartially decided the matters before them. The jury

heard the witnesses, evaluated the evidence, and was convinced of Morlock's guilt.

{¶88} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the trier of facts lost its way and created a manifest

miscarriage of justice. We do not find the jury erred when it found Morlock guilty. The fact

that the jury chose to believe the testimony of the state’s witnesses, some of which was

contradictory, does not, in and of itself, render his convictions against the manifest weight

of the evidence. The state presented testimony and evidence from which the jury found

all the essential elements of the offenses proven beyond a reasonable doubt.

{¶89} Upon careful consideration of the record in its entirety, we do not find that

the jury disregarded or overlooked compelling evidence that weighed against conviction.

{¶90} Morlock’s Second Assignment of Error is overruled.

III.

{¶91} In his Third Assignment of Error, Morlock argues he was denied effective

assistance of counsel because counsel failed to adequately cross-examine the state’s

witnesses.

{¶92} To obtain a reversal of a conviction on the basis of ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, Stark County, Case No. 2023 CA 00024 31

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000). State

v. Watson, 5th Dist. Stark No. 2022CA00145, 2023-Ohio-3137, ¶ 29.

Issue for Appellate Review: Whether there is a reasonable probability that, but

for counsel's failure to highlight inconsistencies in the testimony of the state’s witnesses

through cross-examination, the result of the proceeding would have been different.

{¶93} The scope of cross-examination falls within the ambit of trial strategy, and

debatable trial tactics do not establish ineffective assistance of counsel. State v. Hoffner,

102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45; State v. Campbell, 90 Ohio

St.3d 320, 339, 738 N.E.2d 1178 (2000). In addition, to fairly assess counsel’s

performance, “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,

104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶94} However, even assuming arguendo counsel’s failure to cross-examine the

witnesses concerning inconsistencies reflected deficient performance, Morlock cannot

establish prejudice under Strickland. We note that in his brief, Morlock cites

inconsistencies in the testimony of various state witnesses. Thus, the jury was aware that

some of the facts were inconsistent between the state’s witnesses. Counsel did highlight

in his cross-examination of Jordan that Clayton and Andrew were “the only two people in

the car…” 2T. at 118. Counsel may have made a strategic decision to not ask about

Morlock choosing to rely instead on the fact that Jordan did not mention Morlock during

his direct testimony. Stark County, Case No. 2023 CA 00024 32

{¶95} In addition, the jury was instructed,

A discrepancy in a witness’ testimony or between his or her

testimony and that of another, if there are any, does not necessarily mean

that you should disbelieve the witness, as people commonly forget facts or

recollect them erroneously after the passage of time. You are all certainly

aware of the fact that two persons who are witness to an incident may often

see or hear it differently. In considering… a discrepancy in a witness’

testimony you should consider whether such testimony concerns an

important fact or a trivial one.

3T. at 161. The jury was further instructed that Clayton, Andrew and Jordan’s testimony

“should be viewed with grave suspicion and weighed with great caution…” because they

were said to be accomplices. 3T. at 162.

{¶96} We reject Morlock’s arguments concerning discrepancies or inconsistency’s

in Clayton’s testimony for the reasons explained in our disposition of Morlock’s First and

Second Assignments of Error.

{¶97} Morlock has not shown that there was a reasonable probability that, but for

counsel’s error, the result of his trial would have been different.

{¶98} Morlock’s Third Assignment of Error is overruled.

IV.

{¶99} In his Fourth Assignment of Error, Morlock contends that the trial court erred

and abused its discretion by failing to hold a restitution hearing to require the s tate to

prove the restitution amount by a preponderance of the evidence. Stark County, Case No. 2023 CA 00024 33

{¶100} We review felony sentences, including sentences ordering restitution, using

the standard of review set forth in R.C. 2953.08. State v. Poff, 5th Dist. Morgan No. 20AP-

0005, 2021-Ohio-384, ¶33-34; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049,

¶31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for resentencing where we clearly and convincingly find that either

the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.

{¶101} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

“Where the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St.

at 477, 120 N.E.2d 118.

Restitution

{¶102} Morlock's counsel stated his intention to object to restitution specifically "on

the grounds of indigency * * *." Sent. T., Jan. 24, 2023 at 13. When the trial court later

ordered restitution in open court, counsel only made a general objection "to the restitution

order." Id. at 19.13 Taken together this would appear to indicate that Morlock objected to

13 Counsel made no objections to restitution during the re-sentencing hearing that took place on

Apr. 6, 2023. Stark County, Case No. 2023 CA 00024 34

the restitution order on the ground that he was indigent and therefore unable to pay, not

that he disputed the amount the trial judge order that he pay to Buddy. On appeal, Morlock

objects to the amount of restitution, arguing the state failed to prove the amount by a

preponderance of the evidence. [Appellant’s brief at 24]. We find that Morlock failed to

specifically tell the trial judge he was objecting to the amount of restitution or that he was

asking for a hearing on the amount of restitution. Accordingly, he has waived all but plain

error.

{¶103} Morlock did not raise plain error with respect to restitution during the

sentencing hearing in his assignments of error or argument in this Court. Because he

does not claim plain error on appeal, we need not consider it. See, State v. Quarterman,

140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17–20 (appellate court need not

consider plain error where appellant fails to timely raise plain-error claim); State v. Gavin,

4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, 2015 WL 4549872, ¶ 25, citing Wright

v. Ohio Dept. of Jobs & Family Servs., 9th Dist. Lorain No. 12CA010264, 2013-Ohio-

2260, 2013 WL 2407158, ¶ 22 (“when a claim is forfeited on appeal and the appellant

does not raise plain error, the appellate court will not create an argument on his behalf”);

State v. McCreary, 5th Dist. Ashland No. 21-COA-026, 2022-Ohio-2899. ¶65; State v.

Carbaugh, 5th Dist. Muskingum No. CT2022-0050, 2023-Ohio-1269, ¶67; State v. Fitts,

6th Dist. Wood Nos. WD18-092, WD18-093, 2020-Ohio-1154, ¶21; Simon v. Larreategui,

2nd Dist. Miami No. 2021-CA-41, 2022-Ohio-1881, ¶41.

{¶104} However, even if Morlock had raised plain error on appeal, he would not

prevail. Stark County, Case No. 2023 CA 00024 35

{¶105} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a

sentence in order to compensate the victim for economic loss. “A trial court has discretion

to order restitution in an appropriate case and may base the amount it orders on a

recommendation of the victim, the offender, a presentence investigation report, estimates

or receipts indicating the cost of repairing or replacing property, and other information,

but the amount ordered cannot be greater than the amount of economic loss suffered as

a direct and proximate result of the commission of the offense.” State v. Lalain, 136 Ohio

St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, paragraph one of the syllabus (emphasis

added); R.C. 2929.18(A)(1). A court’s order of restitution must be supported by

competent, credible evidence. State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18

(1990).

{¶106} In Lalain, the Ohio Supreme Court noted,

R.C. 2913.02(B)(5) states, “If the property stolen is a motor vehicle,

a violation of this section is grand theft of a motor vehicle, a felony of the

fourth degree,” regardless of the value of the motor vehicle. A trial court

choosing to order restitution in a case of grand theft of a motor vehicle is

not restricted to the value corresponding to a fourth-degree felony and may

instead award restitution pursuant to R.C. 2929.18(A)(1).

136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶24.

{¶107} “[W]hen a vehicle has been totally destroyed, ‘the measure of damages is

its reasonable market value immediately before destruction.’” State v. Moore, 1st Dist.

Hamilton No. C-220421, 2023-Ohio-3318, ¶ 12, quoting Falter v. Toledo, 169 Ohio St.

238, 240, 158 N.E.2d 893 (1959). Thus, the economic loss suffered by the victim when a Stark County, Case No. 2023 CA 00024 36

vehicle has been destroyed is the fair market value of the vehicle prior to the accident.

See id. at ¶ 12. See, State v. Mazan, 1st Dist. Hamilton No. C-2340053, 2023-Ohio-4385,

¶8.

{¶108} The record indicates that the state represented to the trial judge that Buddy

estimated his car’s value at $3,300.00. Sent. T., Jan 24, 2023 at 9. R.C. 2929.18(A)(1)

permits a trial judge to accept the victim’s recommendation. Receipts were admitted to

show $499.00 to replaced his cell phone and his investment in the automobile’s stereo

system to be $1,618.22. Id.

{¶109} We find that the trial judge based her order of restitution on the amount of

the economic loss suffered by the victim as a direct and proximate result of the

commission of the offenses. Had Morlock asked the trial judge for a hearing on the

amount of restitution or otherwise alerted the trial judge that he disputed the amount, we

have no doubt that the trial judge would have held a hearing. Morlock’s failure to raise the

issue precluded the trial judge from preventing or correcting any error.

{¶110} Notice of plain error “is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. We do

not find a manifest miscarriage of justice occurred in this case. Accordingly, we decline

to find plain error.

{¶111} Morlock’s Fourth Assignment of Error is overruled. Stark County, Case No. 2023 CA 00024 37

{¶112} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur