[Cite as State v. Metz, 2012-Ohio-2188.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110451
TRIAL NO. B-1101217
Plaintiff-Appellee, :
vs. : O P I N I O N.
MALCOLM METZ, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 18, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Geoffrey W. Pittman, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant Malcolm Metz appeals the judgment of the
Hamilton County Court of Common Pleas convicting him of aggravated robbery with
a firearm specification and possessing a weapon while under a disability. He was
convicted after a jury trial.
A Confrontation After an Accident
{¶2} One afternoon, Darnell Higgins and his girlfriend Ashley Fant were
driving to a birthday party with several children in Fant’s car. They had trouble with
one of their tires, and they went to a repair shop. As they were leaving the shop, their
car backed into a car that was parked on the street.
{¶3} Higgins testified that, after the collision, he had gotten out of the
car to apologize when he was approached by two men he later identified as Metz and
Renell Barnett. Higgins testified that Metz and Barnett assaulted him and that Metz
rifled through his pockets while Barnett attempted to take the keys from Fant’s car.
{¶4} Higgins stated that, soon after the assault had begun, Barnett had
told Metz to get his “burner,” a slang term for a gun. Metz left for a brief time and
then returned, threatening to shoot Higgins. Higgins testified that after he had seen
the butt of a gun protruding from the waistband of Metz’s pants, he had retreated to
the repair shop. Barnett then drove Fant’s car from the scene with Metz in the front
passenger seat.
{¶5} Fant testified that she had seen Metz and Barnett approach Higgins
and attempt to take the car keys and his money. Although she did not see a gun, she
stated that she had heard Barnett tell Metz to get his “burner.” As soon as the gun
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was mentioned, Fant took the children away, but she did see Barnett and Metz leave
in her car.
{¶6} The owner of the repair shop, Kevin Laws, testified that he had
attempted to intervene in the altercation but had retreated when Metz had
threatened to shoot him. He testified that he had seen Barnett and Metz leave in
Fant’s car.
{¶7} Cincinnati Police Officer Merlyn Murrell testified that he had
received a radio run on the date of the alleged robbery. He spotted Fant’s car parked
on the street near a residence where other officers had just apprehended Metz and
Barnett.
{¶8} Metz rested without presenting any evidence. The jury found him
guilty, and the trial court sentenced him to an aggregate prison term of eight years.
{¶9} In a single assignment of error, Metz argues that the trial court
erred in convicting him of the offenses and the specification.
Discovery Violations
{¶10} Metz first argues that he was deprived of a fair trial as a result of
discovery violations on the part of the state. Specifically, he argues that the state’s
failure to disclose the statement he had made to police and to disclose the existence
of a 911 tape resulted in prejudice. Although the trial court excluded the evidence,
Metz apparently maintains that the sanction was insufficient.
{¶11} A trial court has broad discretion in regulating discovery and in
determining the appropriate sanction for discovery violations. State v. Matthews,
1st Dist. Nos. C-060669 and C-060692, 2007-Ohio-4881, ¶ 16. The court must
inquire into the circumstances surrounding the violation and impose the least severe
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sanction consistent with the purpose of the rules of discovery. Lakewood v.
Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus.
{¶12} In this case, the trial court did not abuse its discretion. In
excluding the evidence not timely disclosed by the state, the trial court ensured that
Metz would not be prejudiced at trial, and the court provided the relief that Metz
himself had requested. While Metz argues that the state’s failure to produce the
evidence in a timely fashion deprived him of the ability to negotiate a favorable plea
agreement instead of taking the case to trial, there is nothing in the record to suggest
that such an agreement would have been available.
Testimony About a Firearm
{¶13} Metz next argues that the trial court erred in permitting Laws to
testify about Metz’s possession of a gun. He argues that the court erroneously
permitted the state to ask Laws if he had backed away from Metz “[w]hen he
threatened you with the gun?” Metz contends that the question—and the affirmative
answer—were improper because Laws had previously testified that he had not seen a
gun in Metz’s possession.
{¶14} We find no merit in this argument. It is well settled that a trial
court has broad discretion in admitting or excluding evidence. See State v. Sage, 31
Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). In this case, there was no abuse of
discretion. Although Laws testified that he had not seen a gun, he did state that Metz
had threatened to shoot him. It was the threat that was the focus of the state’s
question, and we find no error in the trial court’s admission of the evidence.
Sufficiency and Weight of the Evidence
{¶15} Metz next argues that his convictions were based on insufficient
evidence and were against the manifest weight of the evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} In reviewing the sufficiency of the evidence to support a conviction,
the relevant inquiry for the appellate court “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 beyond a reasonable doubt.” State v. Waddy, 63
Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a conviction on the manifest
weight of the evidence, a reviewing court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its
way and created a manifest miscarriage of justice in finding the defendant guilty.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶17} The aggravated-robbery statute, R.C. 2911.01(A)(1), provides that
“[n]o person, in attempting or committing a theft offense * * * or in fleeing
immediately after the attempt or offense, shall * * * [h]ave 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.”
{¶18} In this case, the convictions were in accordance with the evidence.
Higgins testified that Metz had threatened to shoot him while attempting to steal his
money and while helping Barnett steal Fant’s car. And according to Higgins, he had
seen a gun in the waistband of Metz’s pants. Although Fant did not see the gun, she
testified that Barnett had told Metz to get his “burner,” and she otherwise
substantially corroborated the testimony of Higgins. Similarly, Laws corroborated
Higgins’s testimony about Metz’s threat to use a gun, and he witnessed Metz and
Barnett take the car. Metz stipulated that he was under a disability for a previous
aggravated robbery. Although Metz cites a number of inconsistencies in the
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testimony of the state’s witnesses, we cannot say that the jury lost its way in finding
him guilty.
Ineffective Assistance of Counsel
{¶19} Metz next argues that he was deprived of the effective assistance of
trial counsel. He contends that counsel was deficient in failing to object to the
testimony of Officer Murrell and in failing to object to the comments of Fant and
Higgins that Metz and Barnett appeared to have been engaging in drug trafficking.
{¶20} To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable performance and that prejudice arose from counsel’s performance.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two
and three of the syllabus.
{¶21} In the case at bar, we find no deficiency in counsel’s performance.
Although Murrell testified about certain events that he did not personally witness, he
was merely explaining why he had responded to the radio broadcast and how he had
investigated the crimes. This testimony explaining his involvement was brief and
was cumulative to the evidence of other witnesses. Thus, Metz has failed to
demonstrate that Murrell’s testimony deprived him of a fair trial.
{¶22} And while the testimony of Higgins and Fant about possible drug
trafficking was irrelevant, they were isolated comments, and Metz has failed to
demonstrate that they had any effect on the jury’s verdict.
Cumulative Error
{¶23} Finally, Metz argues that the cumulative effect of the alleged errors
deprived him of a fair trial. The cumulative effect of errors may deprive a defendant
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of a fair trial, even though the individual instances of error do not warrant reversal.
State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the
syllabus. The defendant must demonstrate that a reasonable probability exists that
the outcome of the trial would have been different absent the alleged errors. State v.
Dieterle, 1st Dist. No. C-070796, 2009-Ohio-1888, ¶ 38. In this case, Metz has failed
to demonstrate that any errors, individually or collectively, deprived him of a fair
trial. Accordingly, we overrule the assignment of error.
Conclusion
{¶24} The judgment of the trial court is affirmed.
Judgment affirmed.
CUNNINGHAM and DINKELACKER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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