State v. Merriman

S
[Cite as State v. Merriman, 2021-Ohio-1403.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                          No. 109431
                v.                               :

MONOLITO MERRIMAN,                               :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: VACATED
                RELEASED AND JOURNALIZED: April 22, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-633415-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Jonathan Block, Assistant Prosecuting
                Attorney, for appellee.

                Thomas Rein, for appellant.


ANITA LASTER MAYS, P.J.:

                  Defendant-appellant Monolito J. Merriman (“Merriman”) appeals

his convictions and sentence. He asks this court to reverse his convictions and
vacate his sentence.       Finding merit to this argument, we vacate Merriman’s

convictions and sentence.

               On October 9, 2018, Merriman was indicted on four counts of

retaliation, third-degree felonies, in violation of R.C. 2921.05. Before the jury trial

commenced, the state and defense counsel stipulated to Merriman’s reports of

sanity and competency. After the jury trial, Merriman was found guilty of all counts.

He was subsequently sentenced on Count 1 to 36 months’ imprisonment and three

years of discretionary postrelease control following his release. Merriman was

sentenced to four years’ community control on the remaining three counts of

retaliation, to run concurrently with the community control sentence on Count 1.

I.    Facts and Procedural History

               After an incident with a store clerk in Beachwood, Merriman checked

himself into the hospital. During inpatient treatment for Merriman’s mental health,

he disclosed to his psychiatrist that he wanted to harm three police officers and a

judge who Merriman felt were a threat to him. Merriman told his psychiatrist that

he would follow these people to their home from public places and would dress up

in wigs and hats to disguise his identity. Merriman also expressed that he knew his

targets’ home addresses and the identities of their spouses and children. He went

on to state that he was going to scare the judge, who presided over his fiancée’s legal

case, with an explosion.

               Merriman disclosed to a medical student the names of the officers and

their respective precincts. After Merriman’s disclosures to the psychiatrist and the
medical student, his psychiatrist requested a second opinion to determine if

Merriman’s threats were egregious and credible enough to breach confidentiality

and report them to the police. Two additional psychiatrists interviewed Merriman

where he told them that he got into an altercation with a store clerk, threatened to

harm the clerk, and subsequently checked into the hospital. Merriman again

disclosed that he wanted to scare the judge that he felt kept him from contacting his

girlfriend. He also named three police officers that he felt were picking on him.

Merriman shared that he had a gun and planned to kill himself while confronting

the police officers. Merriman also disclosed that he was going to harm his brother

and mother.

              After this session, both of the psychiatrists recommended that they

breach their duty of privilege and inform law enforcement of their concerns. When

Merriman’s mother was contacted and told about the threats, she stated that “she

was not particularly worried.” (Tr. 189.) During Merriman’s stay at the hospital, he

was extremely uncooperative, refusing to take his medication, barricading himself

in his room, and punching the walls numerous times. Merriman was diagnosed with

bipolar disorder, and it was determined that he was having a bipolar episode when

he arrived at the hospital. In addition to bipolar disorder, Merriman has homicidal

ideations and schizophrenic disorder, where he hears voices.

              The psychiatrists explained to Merriman that they would have to

breach his confidentiality and notify the individuals of the threats. Merriman then

became compliant and started taking his medication. After two weeks of being on
medication, Merriman calmed down and stopped his aggressive behaviors. After

notification, Merriman was charged with four counts of retaliation. During the jury

trial, Merriman’s counsel, pursuant to Crim.R. 29(A), moved the court for a

judgment of acquittal arguing that there were no physical or testimonial evidence

that Merriman was involved in a criminal proceeding involving the named judge “in

the discharge of her duties as a public servant.” (Tr. 267.) Likewise, regarding the

three police officers there has not been any testimony elicited that Merriman was

involved in any criminal or civil proceedings that he could allegedly retaliate against.

In fact, one officer claimed that he did not know Merriman. (Tr. 268.) The trial

court denied the motion, and the jury found Merriman guilty. Merriman was

sentenced to 36 months’ imprisonment. Merriman filed this appeal assigning three

errors for our review:

      I.     The trial court erred by failing to grant a judgment of acquittal
             pursuant to Crim.R. 29(A), on the charges, and thereafter
             entering a judgment of conviction of that offense as those
             charges were not supported by sufficient evidence, in violation
             of defendant’s right to due process of law, as guaranteed by the
             Fourteenth Amendment to the United States Constitution;

      II.    Appellant’s convictions are against the manifest weight of the
             evidence; and

      III.   The trial court erred by ordering Appellant to serve an improper
             sentence.

II.   Crim.R. 29(C) Motion

      A.     Standard of Review
              “A Crim.R. 29(A) motion for acquittal tests the sufficiency of the

evidence.” State v. Yavorcik, 2018-Ohio-1824, 

113 N.E.3d 100

, ¶ 62 (8th Dist.),

citing State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. “We

consider whether the state has met its burden of production at trial.”

Id., citing

State v.

Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41.

      Crim.R. 29 mandates that the trial court issue a judgment of acquittal
      where the state’s evidence is insufficient to sustain a conviction for an
      offense. Accordingly, an appellate court reviews a trial court’s denial
      of a defendant’s motion for acquittal using the same standard it
      applies when reviewing a sufficiency-of-the-evidence claim.

State v. Fisher, 8th Dist. Cuyahoga No. 105802, 2018-Ohio-2189, ¶ 9, quoting

State v. Hoskin-Hudson, 8th Dist. Cuyahoga No. 103615, 2016-Ohio-5410, ¶ 7.

              Accordingly,

      [w]ith respect to sufficiency of the evidence, “‘sufficiency’ is a term of
      art meaning that legal standard which is applied to determine whether
      the case may go to the jury or whether the evidence is legally sufficient
      to support the jury verdict as a matter of law.” Black’s Law Dictionary
      1433 (6 Ed.1990). See also Crim.R. 29(A) (motion for judgment of
      acquittal can be granted by the trial court if the evidence is insufficient
      to sustain a conviction). In essence, sufficiency is a test of adequacy.
      Whether the evidence is legally sufficient to sustain a verdict is a
      question of law. State v. Robinson, 

162 Ohio St. 486

, 

124 N.E.2d 148

      (1955). In addition, a conviction based on legally insufficient evidence
      constitutes a denial of due process. Tibbs v. Florida, 

457 U.S. 31

, 45,
      

102 S. Ct. 2211

, 2220, 

72 L. Ed. 2d 652

, 663 (1982), citing Jackson v.
      Virginia, 

443 U.S. 307

, 

99 S. Ct. 2781

, 

61 L. Ed. 2d 560

(1979).

State v. Thompkins, 

78 Ohio St. 3d 380

, 1997-Ohio-52, 

678 N.E.2d 541

.

      B.    Law and Analysis
              Merriman argues that the trial court erred when it denied his

Crim.R. 29(A) motion. He further contends that the evidence was not sufficient to

convict him of retaliation. R.C. 2921.05(A) states,

      No person, purposely and by force or by unlawful threat of harm to
      any person or property, shall retaliate against a public servant, a party
      official, or an attorney or witness who was involved in a civil or
      criminal action or proceeding because the public servant, party
      official, attorney, or witness discharged the duties of the public
      servant, party official, attorney, or witness.

The state must prove that Merriman purposely threatened harm to the judge and

police officers who were involved in a civil or criminal action or proceeding as a

result of discharging the duties of a public servant. The facts revealed that upon

checking himself into the hospital during a psychiatric assessment, Merriman

made threats to harm himself and several other individuals. Initially, Merriman

did not provide names to the Emergency Psychiatric Assessment Team (“EPAT”)

but after additional interviews Merriman provided names and details.              After

discussion, team members determined it necessary to warn the named individuals

pursuant to Ohio law.

              Although the psychiatrists determined that Merriman’s threats

warranted breaching confidentiality, “[t]he validity of executing a duty to warn does

not necessarily equate to establishing a threat of harm for purposes of proving felony

retaliation. Whether a statement constitutes a threat for purposes of retaliation

depends on the factual circumstances.”        State v. Oliver, 8th Dist. Cuyahoga

No. 90880, 2009-Ohio-228, ¶ 33.
               The record reveals that during trial, one of the officers testified that

he did not know Merriman. (Tr. 256.) Another officer could not be contacted

because he had retired four to five years before the 2018 episode. (Tr. 230.) And

the final officer never returned any calls regarding the threats. (Tr. 231.) It was also

determined during trial that the judge, Merriman threatened, never presided over a

proceeding involving Merriman. The facts revealed that Merriman was in the

middle of a mental-health crisis and bipolar episode at the time he made threats

against the judge and police officers. After medication and a stay in a psychiatric

unit, Merriman became compliant and the threats ceased.

               In Oliver, the defendant made statements to hospital personnel,

threatening to attack the prosecutor, judge, and police officer that were involved in

his earlier criminal case. Oliver was involuntarily committed for further treatment,

and hospital personnel warned the identified individuals that there was a concern

for their safety. This court held that defendant’s retaliation conviction was not

supported by sufficient evidence to find that the defendant purposefully or

unlawfully threatened any of the individuals in retaliation for their involvement with

his earlier criminal matter. Additionally, the court held “[t]he evidence establishes

that defendant made these statements to his therapist and treating physicians for

purposes of treatment.”

Id. at ¶ 32.

               Merriman differs from Oliver in that Merriman’s threats involved

individuals that were not involved in prior or current civil or criminal proceedings

against him. Merriman was not taking his medicine, was upset and went to the
emergency room. During his emergency room assessment, threats were made

regarding unnamed individuals.          During continued assessments for treatment

purposes, Merriman’s threats became more specific. However, it is important to

restate that Merriman was still in a mental-health crisis. We determine that

Merriman confided and made the statements to therapists and treating physicians

for treatment purposes.

                We therefore find that the evidence presented is insufficient to

sustain a conviction for retaliation.

       See State v. Farthing, 

146 Ohio App. 3d 720

, 725, 2001-Ohio-7077,
       

767 N.E.2d 1242

(statements made to mental health counselor, which
       warranted safety concerns for the targeted victim, did not stem from
       a “threat of harm” expressed by the defendant for purposes of
       retaliation). To provide otherwise, would increase the risk a mental
       health patient poses to the public by discouraging them from seeking
       treatment for fear of being prosecuted for their unhealthy thoughts
       and feelings. There was no non-hearsay evidence presented at trial
       that defendant stated any intention or plan to harm these people.

Id. at ¶ 35.

                As this court stated in Oliver, and we want to reiterate here: “[w]e

emphasize that no one violated defendant’s confidentiality by executing the duty to

warn because defendant’s statements created legitimate concern for the safety of the

[four] individuals who were warned.” Oliver, 8th Dist. Cuyahoga No. 90880, 2009-

Ohio-228,      at   ¶   36.   R.C.      2317.02(L)(3)(b)   exempts   from   “privileged

communications” any “communication made by a client to an employee assistance

professional that reveals the contemplation or commission of a crime or serious,

harmful act.” We recognize that mental-health professionals are allowed discretion
when determining whether to breach their duty of confidentiality in order to execute

their duty to warn.

Id.

Therefore, we sustain

Merriman’s first assignment of error.

               Finding merit in the first assignment of error, we do not find it

necessary to address the second and third assignments of error, which are moot.

App.R. 12(A)(1)(c).

               Defendant’s conviction and sentence are vacated.

      It is ordered that appellant recover from appellee his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



___________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
LISA B. FORBES, J., DISSENTS WITH SEPARATE OPINION


               I respectfully dissent from the majority’s opinion and would instead

find that the state produced sufficient evidence to support Merriman’s retaliation

convictions.
               R.C. 2921.05 governs criminal retaliation, and subsection (A) states

as follows: “No person, purposely and by * * * unlawful threat of harm to any person

or property, shall retaliate against a public servant, * * * or an attorney or witness

who was involved in a civil or criminal action or proceeding because the public

servant, * * * attorney, or witness discharged the duties of the public servant, * * *

attorney, or witness.”

               R.C. 2901.22(A) defines purposely as follows:          “A person acts

purposely when it is the person’s 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 the offender’s specific

intention to engage in conduct of that nature.” Although Merriman was suffering

from mental-health issues at the time he made the threats, there is no evidence in

the record to suggest that he was unable to form criminal intent. Rather, the

testimony showed that Merriman intended to threaten three police officers and a

judge.

               At trial, the parties conceded that the three identified police officers

and the judge were “public servants” under R.C. 2921.02(A). The phrase from

R.C. 2901.22(A) “who was involved in a civil or criminal action or proceeding” does

not apply to public servants. Therefore, the elements of retaliation applicable in the

case at hand are: “No person, purposely and * * * by unlawful threat of harm to any

person or property, shall retaliate against a public servant * * * because the public

servant * * * discharged the duties of the public servant * * *.”
      The legislature intended R.C. 2921.05(A) to prohibit retaliation against
      three categories of individuals: (1) the public servant, (2) the party
      official, or (3) the attorney or witness who was involved in a civil or
      criminal action or proceeding. The placement of the comma before “or
      an attorney or witness” in the context of this sentence clearly
      establishes the third category of potential victims of retaliation
      encompasses attorneys or witnesses who were involved in civil or
      criminal actions or proceedings. The use of “or” before the word
      attorney would be superfluous if the phrase “who was involved in a civil
      or criminal action or proceeding” was meant to modify each category.

State v. Matthews, 5th Dist. Fairfield No. 12-CA-35, 2013-Ohio-2183, ¶ 11. See also

3 OJI-CR 521.05(1) (instructing the jury that the recipient of a threat under a

retaliation charge must be “a (public servant) (party official) ([attorney] [witness]

who was involved in a [civil] [criminal] action or proceeding) because the (public

servant) (party official) (attorney) (witness) discharged his/her duties”). Where the

threat of retaliation is against a public servant, that public servant need not have

been involved in a civil or criminal proceeding for the state to establish each element

of a violation of R.C. 2921.05(A).

               The parties’ stipulation that police officers and judges are public

servants is supported by statute. R.C. 2921.01(B)(1) states that a “[p]ublic servant”

includes a “public official.” R.C. 2921.01 (A) defines “[p]ublic official” as follows:

“any elected or appointed officer, or employee, or agent of the state or any political

subdivision [including] legislators, judges, and law enforcement officers.”

Merriman identified various individuals who he targeted. Specifically as to this case,

he told the medical staff “that he plans to kill six cops * * *, three of which he was

able to name during the interview.” Additionally, although Merriman did not
initially recall the judge’s name, he knew the judge was female and that she presided

over his fiancée’s case. Ultimately, the judge’s name was established.

              The state presented evidence that the police officers and the judge

were discharging their duties, which prompted Merriman’s threats. Merriman

repeatedly threated to kill three specific Cleveland Police Officers because he

thought the officers “picked on him” after he was acquitted on a charge of

intervening in a police raid. Additionally, he repeatedly threatened to “scare” the

judge by creating an explosion because she presided over his fiancée’s criminal case.

              According to the medical records, for the past year Merriman had

spent “countless hours ruminating over plans to kill people that have done him

wrong.” Dr. Kimmel testified that the “[p]rimary targets seem to be law enforcement

and public officials who he feels have had it out for him * * *.” Merriman’s medical

records reveal that he claimed to know who the police officers and the judge are,

“where they live, what their spouses and children look like, what car they drive, and

other information that ‘you couldn’t even imagine.’” As noted by the majority,

Merriman told his psychiatrist that he would follow these people to their homes

from public places and would dress up in wigs and hats to disguise himself.

Dr. Kimmel testified that, according to Merriman’s medical records, he made these

threats from September 17, 2018, to September 30, 2018, two days before his release

from the hospital.

              Merriman identified by name three Cleveland Police Officers who he

“felt that they had sort of picked on him when he was on the streets that he was
found not guilty on a certain charge.” Asked if “these individual officers who he

believed he encountered in the course of their duties were picking on him,”

Dr. Kimmel answered, “Yes.” Asked if Merriman “spoke specifically about killing

officers,” Dr. Kimmel answered, “Correct. * * * He continues to endorse that he is

not afraid of going to jail or dying, because in his mind, he would be a martyr. He

described it as a win-win if he died after killing the police officers because he would

be done with the suffering.” Dr. Kimmel testified that during “the 14 days preceding

the 30th [of September 2018], he’s making these threats to — about the judge * * *

and he wants to scare her.”

               In light of the facts presented at trial, I would find that this case is

distinguishable from Oliver, 8th Dist. Cuyahoga No. 90880, 2009-Ohio-228. In

Oliver, dismissing the charges against the defendant, the court explained “for

purposes of establishing a felony conviction for retaliation, which does not include

‘contemplation’ of committing harm as an element of the offense, there should be a

distinction between what a person says they want or feel like doing rather than what

they say they intend to or will do.”

Id. at ¶ 36.

The defendant in Oliver told treating

professional that he wanted to beat to a pulp the judge, the prosecutor, and certain

unnamed police officers. In contrast, Merriman told treating professionals that he

had been following the judge and three police officers, knew where they lived, knew

what their families looked like, and had plans to harm all four. The evidence

presented against Merriman was more than his wants or desires.
              Accordingly, I would find that Merriman’s convictions are supported

by sufficient evidence in the record, and I would affirm the trial court’s judgment.

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