State v. Harwell
| Decision Date | 24 July 2015 |
| Docket Number | Appellate Case No. 25852 |
| Citation | 2015 Ohio 2966 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. MICHAEL D. HARWELL Defendant-Appellant |
| Court | Ohio Court of Appeals |
(Criminal Appeal from Common Pleas Court)
OPINIONMATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MICHAEL D. HARWELL, Inmate No. 687-427, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio 45036 Defendant-Appellant-Pro Se
{¶ 1} Defendant-appellant, Michael D. Harwell, appeals pro se from the conviction and sentence he received in the Montgomery County Court of Common Pleas after he was found guilty of multiple criminal offenses following a jury trial. For the reasons outlined below, the judgment of the trial court will be affirmed in part, vacated in part, and remanded for the limited purpose of resentencing.
{¶ 2} On November 16, 2012, the Montgomery County Grand Jury returned a 14-count indictment against Harwell charging him with two counts of felony murder in violation of R.C. 2903.02(B); two counts of attempt to commit felony murder in violation of R.C. 2923.02(A) and R.C. 2903.02(B); two counts of kidnapping in violation of R.C. 2905.01(A)(3) (terrorize/physical harm); two counts of kidnapping in violation of R.C. 2905.01(B)(2) (restrain personal liberty); two counts of kidnapping in violation of R.C. 2905.01(A)(2) (); two counts of felonious assault in violation of R.C. 2903.11(A)(2) (deadly weapon); one count of felonious assault in violation of R.C. 2903.11(A)(1) (serious harm); and one count of having a weapon while under disability in violation of R.C. 2923.12(A)(3) (prior drug conviction). All counts, excluding the count for having a weapon while under disability, also included a three-year firearm specification.
{¶ 3} The foregoing charges stemmed from Harwell's actions after a drug deal went awry on the night of June 15, 2012. Specifically, it was alleged that Harwell kidnapped two men who were involved in the drug deal, Jonathon Lambes and Jason Miller, and drove them to the 3500 block of Guthrie Road in Dayton, Ohio, where he fired several gunshots at them. As a result, Miller was shot multiple times and left to die in thestreet, whereas Lambes was able to escape into the woods. Harwell pled not guilty to all of the charges. Harwell then filed a motion to suppress the pretrial identifications of him, as well as his statements to law enforcement, which the trial court subsequently denied. The matter then proceeded to a week-long jury trial.
{¶ 4} At trial, Lambes and his cocaine supplier, Lori Peak, testified against Harwell. Lambes testified that the day before the relevant incident, June 14, 2012, Miller came to his house. During this time, Lambes testified that he showed Miller some cocaine that he was trying to sell. The following day, June 15, 2012, Miller came back to Lambes's house with a man referred to as "B." After meeting B, Lambes testified that Miller called him later in the day and asked if he could get two ounces of cocaine for B.
{¶ 5} Following Miller's request, Lambes testified that he called Peak to see if she wanted to do business with B. Peak testified that she reluctantly agreed to meet B for purposes of selling him two ounces of cocaine. According to Peak, Lambes asked her to remove three grams of cocaine from the two ounces as a finder's fee and replace the three grams with baking soda. Peak testified that she did as Lambes requested. Peak further testified that the cocaine she sold was not "raw," but a 70/30 cut, meaning it was 70 percent cocaine and 30 percent baking soda, fish scale, or creatine.
{¶ 6} After Peak agreed to meet B, Lambes testified that B picked him up at his house and drove him to Peak's residence. When B and Lambes arrived, a male and female were with Peak, as well as Peak's two young daughters. Peak identified the female as a friend named Angela Stark, who also testified at trial. Peak identified the male as "Kevin," her own cocaine supplier.
{¶ 7} Peak testified that she gave B two ounces of cocaine in her kitchen and thathe provided her with $2,400 cash in exchange. She also testified that B asked if she cut the cocaine, to which she responded "no." While Lambes and Stark testified that they did not see the exchange, they both testified that they observed Peak and B talking in the kitchen, as well as the money lying on the kitchen table. Following the transaction, Peak testified that she and B exchanged phone numbers, with B giving Peak the phone number 660-**** and Peak giving B her home phone number.
{¶ 8} When Lambes and B left, Peak testified that she walked to the door and noticed that B drove a white pickup truck with lettering on the doors. She also observed a ladder and ladder rack in the back of the truck. Peak testified that she asked B about the signs on his truck, and in response, he told her that he was in the construction business. Stark, who walked outside to get a marijuana joint from B as he was leaving, also testified that B drove a white pickup truck with lettering on the doors that had a ladder and ladder rack. Lambes further testified that B drove a white pickup truck with a company name on the doors. In addition to the testimony regarding the truck, Peak, Stark, and Lambes all testified that they observed another man in the passenger seat of B's truck; however, the man never went inside Peak's home.
{¶ 9} After leaving Peak's house, Lambes testified that B dropped him off at his house and told him he "had just made a friend." Trial Trans. Vol. IV (June 25, 2013), p. 764. Meanwhile, Peak testified that she dropped off the $2,400 to Kevin and took her cut of the money. When she returned home, Peak testified that she received a call from B at the 660-**** number. Peak testified that B demanded his money back because he was unable to cook the two ounces of cocaine into crack. Peak further testified that B threatened to "shoot up [her] house" and kill her and her children if she did not return hismoney. Trial Trans. Vol. V (June 26, 2013), p. 1002. According to Peak, she was very scared and upset with Lambes.
{¶ 10} Approximately one or two hours after being dropped off by B, Lambes testified that he went back to Peak's house to pick up some cocaine. When he got there, he observed Peak on the phone having an "angry conversation" with B. Trial Trans. Vol. IV at 767. Lambes then testified that Peak got off the phone and began screaming at him. After Peak explained what had happened, Lambes testified that he called B from his cell phone multiple times in an attempt to calm him down and work things out. However, Lambes testified that B continued making threats and said he was going to "shoot up the house" if he did not get his money back. Id. at 773.
{¶ 11} In light of B's threats, Peak testified that she gathered her two daughters and dropped them off at her aunt's house with Lambes. When Peak and Lambes returned to her house, B and Peak continued to speak with each other over the phone and B continued making threats. As a means of protection, Peak testified that she called Kevin, who later arrived at her house with an unknown male and female. Both Peak and Lambes testified that Kevin was armed. According to Lambes, Kevin and Peak blamed him for the situation with B. Peak recalled Kevin demanding to know why Lambes had brought "this drama" to the house and asked how he intended to fix it. Trial Trans. Vol. V at 1012. At this point, Lambes began making several calls asking his mother and other friends for money.
{¶ 12} Both Lambes and Peak testified that B came back to Peak's house later that night asking "where's the money?" Trial Trans. Vol. IV (June 25, 2013), p. 778. Thereafter, Lambes testified that Kevin and B had a discussion, during which Kevinblamed everything on him. After Kevin told B he was not going to pay him, Lambes testified that B asked if he had the money. In response, Lambes testified he told B he could get the money, but they would have to drive to a place near Indian Lake to pick it up. B then said: Id. at 779.
{¶ 13} Continuing, Lambes testified that B walked him to the passenger door of his white truck, which did not contain any other passengers. When B got in on the driver's side, Lambes testified that he saw B lay a gun in between them and that B kept his hand on the gun as they drove away. After departing, Lambes asked if they were going to Indian Lake, to which B responded "no" that "he's not going out there to get set up." Id. at 783. Lambes then testified that he attempted to call his mother, but B took his cell phone. As a result of B flashing a gun and taking his cell phone, Lambes testified that he did not feel free to leave.
{¶ 14} Lambes then testified that B drove him to a Domino's Pizza at the corner of Airway and Smithville Roads. Lambes testified that when they arrived, a purple car pulled up and two or three men walked up to B's truck, one of them being the passenger Lambes had seen in B's truck earlier that day. While at Domino's, Lambes testified that he was permitted to use B's phone to try and find some money to borrow. To that end, Lambes called his mother again, but he was unable to come up with any money. Lambes then testified that he observed B make a few calls, one being to Miller. Lambes heard B tell Miller to meet him on the corner of Huffman Avenue and John Street.
{¶ 15} Melissa Mesarosh, a friend of Miller also testified at trial. Mesarosh testified that Miller was with her when he received a phone call on the night in question from someone named B. According to Mesarosh, Miller seemed nervous on the phone.She testified that during this...
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