State v. Morris, 2007 Ohio 3591 (Ohio App. 7/13/2007)

• Decision Date: 13 July 2007
• Docket Number: Appellate No. 06-CA-65.
• Citation: 2007 Ohio 3591
• Parties: State of Ohio, Plaintiff-Appellee. v. Christopher Morris, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2007 Ohio 3591

State of Ohio, Plaintiff-Appellee. v.Christopher Morris, Defendant-Appellant.

Appellate No. 06-CA-65.

Court of Appeals of Ohio, Second District, Clark County.

Rendered on July 13, 2007.

Criminal Appeal from Trial Court Case Nos. 05-CR-1142.

William H. Lamb, Atty. Reg. #0051808, Clark County Prosecutor's Office, 50 East Columbia Street, 4^th Floor, P.O. Box 1608, Springfield, Ohio 45501, Attorneys for Plaintiff-Appellee.

David E. Smith, Atty. Reg. #0020413, P.O. Box 791, Springfield, Ohio 45501, Attorney for Defendant-Appellant.

OPINION

BROGAN, J.

{¶ 1}Christopher Morris appeals from his conviction and sentence in the Court of Common Pleas of Clark County on one count of aggravated burglary in violation of R.C. 2911.11(A)(2), including a firearm specification pursuant to R.C. 2941.145.

{¶ 2} Morris advances the following two assignments of error on appeal:

{¶ 3} "Appellant was denied due process and his right to a fair trial under the Sixth Amendment where he was tried for aggravated burglary without sufficient notice of the charges against him due to the state's failure to identify, either in the indictment or the bill of particulars, the underlying offense he allegedly intended to commit within the structure.

{¶ 4}"Appellant's conviction and sentence for a three-year firearm specification was plain error because there was insufficient evidence that he displayed, brandished, used, or indicated he possessed a firearm while committing aggravated burglary."

{¶ 5} Upon review of the record, we find that the trial court did not abuse its discretion in denying Morris's motion to dismiss.The indictment charging him with aggravated burglary under R.C. 2911.11(A)(2) was not defective on its face simply because it recited the language of the statute.However, the evidence presented by the state was not sufficient to convict Morris of the three-year firearm specification under R.C. 2941,145, where the confrontation involving the revolver occurred after the defendant had exited the occupied structure.Accordingly, the judgment of the trial court will be affirmed in part, reversed in part, and the matter will be remanded for proceedings consistent with this opinion.

{¶ 6} The present appeal stems from an incident that occurred during the evening of November 26, 2005.Approximately two days prior to the incident, the defendant, Christopher Morris, accompanied an acquaintance, Mike Algatus, to 1729 West Mulberry Street in Springfield, Ohio.There, Morris sat in the basement and played X-box with two of the occupants of the residence, Kevin Grider and Jeremy Baker, while waiting on Algatus.Two days later, on the afternoon of November 26, 2005, the defendant again went to the West Mulberry street residence, but this time he was alone.According to the occupants of the house, Morris indicated that he was waiting on a ride from Algatus.Eventually, someone from the house had to call Algatus to come and pick up the defendant.

{¶ 7} Later that same evening, Kevin Grider was in the basement of the home doing laundry and taking a nap.Grider testified that he was dozing in and out when he heard the back door leading to the kitchen being forced open and the door frame splintering and falling to the floor.Startled by the noise, Grider sat up and heard footsteps moving across the upstairs floor.He shouted, "What the fuck," in response to which the footsteps stopped.

{¶ 8} Grider testified that he then heard the footsteps running across the floor.According to Grider, he ran up the stairs to the first landing from the basement, hit his head on the low ceiling, but continued up the stairs just in time to see the defendant running out the back door of the house, heading up the hill in the back yard and turning down an alley.At that point, Grider decided to run after him.About halfway up the hill, he attempted to call the police with the cell phone he always carries on his side, but because of the confusion and the "adrenaline" of the moment, he couldn't think of the address.Consequently, Grider told the dispatcher he would call back, and he hung up the phone.

{¶ 9} Grider continued up the hill in pursuit of Morris.He turned down the alley and ran toward Catanzaro's Pizza and Subs on Dayton Avenue, approximately one block and one-half from the residence.There, he caught up with the defendant, who by then had stopped running and was hunched over trying to catch his breath.Grider testified that he ran straight at Morris and attempted to take a swing at him; however Morris ducked to the side.Grider was able to get a hold of Morris by the side, but the defendant freed himself by slipping out of the jacket and jersey he was wearing.Then, Morris picked up a gun from the ground and walked over to Grider saying, "Yeah, what now?Now what?"(Tr.at 189.)Grider described the gun as a chrome revolver with a slide on it.At that point, Morris grabbed his jacket and jersey from Grider, picked up one of his shoes that had fallen off during the confrontation, and fled across the street.Grider testified that he shouted to the defendant, "What?Are you going to shoot me?I already called the cops," but Morris continued to flee.Grider then called the police again and described what had happened.

{¶ 10} Walking back toward his house, Grider noticed the hat Morris had been wearing lying on the ground.He picked it up and took it back to the house.Eventually, he gave the hat to the police officers when they arrived at the scene.

{¶ 11} As a result of the foregoing incident, Morris was arrested and charged with aggravated burglary in violation of R.C. 2911.11(A)(2).This statute provides that "[n]o person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:

{¶ 12}"The offender has a deadly weapon or dangerous ordnance on or about the offender's person or under the offender's control."Included with this charge was a firearm specification pursuant to R.C. 2941.145.In pertinent part, R.C. 2941.145 states that "[i]mposition of a three-year mandatory prison term upon an offender * * * is precluded unless the indictment * * * charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense."

{¶ 13} The matter proceeded to trial before a jury on June 27 and 28, 2006.On the morning of the trial, Morris filed a motion to dismiss the indictment for failing to specify the underlying criminal offense required of the aggravated burglary statute.The motion was filed in response to the state's filing a bill of particulars on June 26, 2006.The bill of particulars indicated the exact date, place, and time of the incident, but it failed to specify the underlying crime in which Morris was engaged at the time of the burglary.

{¶ 14} After hearing arguments from the defendant and the state, the trial court overruled Morris's motion.The court relied on State v. Rivers, Cuyahoga App.No. 83321, 2004-Ohio-2566, to conclude that the state is not required to specify the criminal offense in either the indictment or the bill of particulars when a defendant is charged with aggravated burglary.The court also noted that appellate courts have found no error in a trial court's failing to instruct the jury on the specific underlying offense when there is an aggravated burglary charge.The trial court, however, chose to discern from the testimony of both sides what criminal offense Morris engaged in before instructing the jury as to such offense.

{¶ 15} After the court ruled on the motion to dismiss, but before the commencement of trial, the state agreed to file an amended bill of particulars specifying the potential underlying offenses, and the defendant agreed to a continuance of the case.The court rejected this proposal and proceeded to trial, again citing Rivers,supra, in support of its decision.

{¶ 16} Following the presentation of evidence at trial, the jury convicted Morris of aggravated burglary with a firearm specification.The trial court subsequently sentenced him to ten years in prison for the burglary charge and three years for the firearm specification.The sentences are to run consecutively for a total of 13 years.It is from this conviction and sentence that the present appeal comes.

I

{¶ 17} In his first assignment of error, Morris argues that the indictment charging him with a violation of R.C. 2911.11(A)(2) and the bill of particulars specifying his conduct constituting the offense were defective because they failed to identify the underlying crime he intended to commit when he entered the residence at 1729 West Mulberry Street.

{¶ 18} Preliminarily, we note that the standard of review for resolving this error is discretionary.Thus, on appeal, a trial court's finding that the defendant has been sufficiently apprised of the charges against him will not be reversed absent an abuse of discretion.SeeState v. Rivers, Cuyahoga App.No. 83321, 2004-Ohio-2566, at ¶7;State v. Semenchuk(1997), 122 Ohio App.3d 30, 36, 701 N.E.2d 19.An abuse of discretion occurs when the trial court's attitude is unreasonable, arbitrary, or unconscionable.Blakemore v. Blakemore(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶ 19}Section 10, Article I of the Ohio Constitution provides that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury."The Ohio Supreme Court has...