State v. Westfall , 2019 Ohio 4039 ( 2019 )

[Cite as State v. Westfall, 2019-Ohio-4039.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2018CA00166
:
ALYSSA WESTFALL :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2018CR0353B
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 27, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. EUGENE M. CAZANTES
STARK CO. PROSECUTOR 101 Central Plaza South, Ste. 1000
KATHLEEN O. TATARSKY Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2018CA00166 2
Delaney, J.
{¶1} Appellant Alyssa Westfall appeals from the December 7, 2018 Judgment
Entry of the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on January 11, 2018, when two men died of gunshot
wounds in Monument Park. Appellant, her boyfriend Justin Griffith, and their friend Ryan
Geiger planned to rob a drug dealer of a pound of weed. Appellant remained at the trio’s
apartment throughout the ensuing debacle, but she was instrumental in planning the
attempted robbery that left two people dead.
Appellee’s bill of particulars
{¶3} Appellee’s bill of particulars sets forth appellee’s theory of the case:
[Appellant and co-defendant Geiger] developed a plan to rob
someone for a pound of marijuana in order to get money. [Appellant]
arranged the transaction with Nate Duncan, who along with others
was supposed to be supplying the marijuana. On January 11, 2018,
[co-defendant Geiger] and Justin Griffith left their apartment to meet
up with Duncan to rob him. Both [appellant and co-defendant Geiger]
were aware that Griffith had a firearm on his person when he left the
apartment. The original meet up was to take place at a different
location inside the city, however, the sellers changed the location.
[Appellant] did maintain contact with both Griffith and Duncan from
her apartment orchestrating the location of the meet. Additionally, at
the seller’s request, [appellant] did transmit a photo as proof that
Stark County, Case No. 2018CA00166 3
Griffith had money to purchase the drugs knowing that Griffith did not
have sufficient money to purchase the drugs and that he intended to
rob the sellers.
Based upon [appellant’s] representations and facilitation of
communications between Griffith and Duncan, Griffith and [co-
defendant Geiger] met up with Duncan and Culver in Monument Park
for the purpose of robbing Duncan and Culver for the drugs. During
the commission of the robbery both Griffith and Culver drew guns
and shot each other. Both sustained fatal gunshot wounds and died
as a result.
Bill of Particulars, March 19, 2018.
The evidence at trial
{¶4} On January 11, 2018, around 9:37 p.m., Canton police received a
ShotSpotter alert from the area of Monument Park. The ShotSpotter system is comprised
of microphones throughout the city that pick up loud noises, including gunfire. If three
microphones pick up gunfire, the location of the sound is triangulated and an alert goes
out to the Canton Police Department. In the instant case, the ShotSpotter system
recorded 2 gunshots at 9:37:10 p.m., and 5 gunshots at 9:37:15 p.m.
{¶5} In this case, Officers Slone, Eckelberry, and Marks were among the first to
respond to the park. Slone established a perimeter on the well-traveled road running
through the park. He observed a man lying on the ground on his side, just off the roadway.
Officers rolled the man over and found a firearm in his left hand. The man was later
identified as appellant’s boyfriend, Justin Griffith. When the police came upon him, Griffith
Stark County, Case No. 2018CA00166 4
was still alive but had sustained a gunshot wound to his chest. He was transported to
Aultman Hospital and was deceased upon arrival.
{¶6} A short distance away, police stumbled upon the body of another individual
who was already deceased. This man was identified as Tyrell Culver and he, too, had a
firearm on his person. He had suffered multiple gunshot wounds.
{¶7} Both firearms were collected and secured. Upon investigation of the scene,
no drugs or cash were found. Ultimately seven shell casings were found, one from each
round fired. It was later determined that both firearms were operable. The firearm found
near Culver had fired 4 rounds and the firearm found near Griffith had fired 3 rounds.
{¶8} Detective Terry Monter investigated the shootings and learned Griffith had
been living in an apartment about 10 minutes away from the park. The apartment had
doorbell-style cameras that fed information to Griffith’s cell phone. Through his
examination of videos from Griffith’s cell phone (the “Ring videos”), Monter interviewed
appellant and co-defendant Ryan Geiger.
Appellant’s recorded statement to investigators
{¶9} Monter’s interview of appellant on January 12, 2018 was recorded and
played at trial as appellee’s Exhibit 8. The interview was also transcribed for purposes of
the record. The following information is adduced from appellant’s Mirandized statement
to Monter. Appellant was not in custody when she made the statement.
{¶10} Appellant and Justin Griffith were living together in the 900 block of Fulton
Road Northwest, Canton. Appellant was pregnant with Griffith’s child. Griffith’s friend
Geiger had been living with them in the apartment for a few weeks.
Stark County, Case No. 2018CA00166 5
{¶11} Appellant, Griffith and Geiger discussed “hitting a lick” because they needed
money “to be ready for the baby” and to save for a car. Appellant claimed she didn’t think
Griffith was serious “at first.”
{¶12} To arrange a transaction, appellant admitted she reached out to an old
friend of hers, Nate Duncan, via Facebook Messenger. She also spoke to Duncan on the
phone (using Geiger’s phone so Duncan would not have her number). Appellant asked
Duncan for “a pound of weed” and the price discussed was $2,800. Appellant asked for
a photo of the marijuana, which Duncan did not send. Duncan asked for a photo of the
cash, and appellant sent one. Appellant said Griffith provided her with an “old” photo of
cash because the pair did not actually have the amount discussed in the transaction.
{¶13} Duncan told appellant he was with his friend Tyrell [Culver], whom appellant
did not know. Although they discussed a few possible locations, ultimately an agreement
was reached for Duncan and Griffith to meet at Monument Park.
{¶14} Appellant remained behind in the apartment while Griffith went to make the
transaction. Appellant said the last time she spoke to Griffith, he said Duncan arrived
with a car full of people he didn’t know.
{¶15} The parties had at first discussed meeting at a school, to make the targets
of the robbery “feel comfortable.” The location changed several times, however, with
Griffith suggesting the park. Duncan messaged appellant when he was parked inside the
park and asked where they were supposed to meet. Appellant gave him a number to call.
{¶16} Geiger later told appellant three people got out of the car with Duncan.
Appellant was aware Griffith went to the meeting with a gun; Geiger was unarmed. Geiger
told appellant that when Duncan and his group arrived, someone in the group wanted to
Stark County, Case No. 2018CA00166 6
pat down Griffith and Geiger. Geiger consented but Griffith refused. Geiger told her that
when guns were pulled, everyone ran. Geiger told appellant he took off running and he
didn’t know what happened to Griffith.
The Ring videos
{¶17} Appellee’s Exhibit 12 is a disk of videos from the Ring cameras that went to
Griffith’s phone. The videos effectively illustrate planning for the robbery and appellant’s
participation therein, and the aftermath when Geiger returns to the apartment and
announces that the robbery failed.
{¶18} In Exhibit 12E, appellant speaks to someone on the phone who can be
heard in the video. She says that if the caller wants somewhere safe to meet, they can
meet at a school near her residence because “there are cameras” in case anything bad
were to happen. In Exhibits 12H and 12I, Geiger, Griffith, and appellant are visible.
Appellant suggests Circle K as a location for the meeting but the parties argue. In 12K,
appellant says someone has suggested Monument Park. 12L is Griffith and Geiger
discussing the manner of the robbery and approach of the people arriving with the “weed.”
12N shows the living room of the apartment. Someone bangs on the door and appellant
runs to answer it. Outside the view of the camera, Geiger says “Justin got shot. That’s
why you hear all the sirens.” 12O shows appellant sitting down on the bed with a cigarette
as Geiger tells her the other group wanted to pat them down and he was fine with it, but
Griffith refused. 12P shows appellant tracking Griffith’s phone and realizing he is at the
hospital.
Stark County, Case No. 2018CA00166 7
Indictment, jury trial, conviction and sentence
{¶19} Appellant and co-defendant Geiger were each charged by indictment with
one count of complicity to involuntary manslaughter pursuant to R.C. 2923.03(A)(2)
and/or (A)(3) and R.C. 2903.04(A), a felony of the first degree [Count I], and one count of
complicity to robbery pursuant to R.C. 2923.03(A)(2) and/or (A)(3) and R.C.
2911.02(A)(1), a felony of the second degree [Count II]. Both counts were accompanied
by firearm specifications pursuant to R.C. 2941.141.
{¶20} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close
of appellee’s evidence and renewed the motion at the close of all of the evidence; the
motions were overruled. Appellant rested without presenting evidence. Appellant was
found guilty as charged and the trial court sentenced her to an aggregate prison term of
14 years.
{¶21} Appellant now appeals from the judgment entries of conviction and
sentence.
{¶22} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. THE COURT COMMITTED PLAIN ERROR IN FAILING TO DECLARE
A MISTRIAL AFTER THE CONTACT BETWEEN JUROR 19 AND APPELLANT,
DEPRIVING APPELLANT OF HER CONSTITUTIONAL RIGHT TO BE TRIED BY A
JURY.”
{¶24} “II. THE TRIAL COURT ERRED IN FAILING TO MERGE THE ROBBERY
AND INVOLUNTARY MANSLAUGHTER COUNTS FOR THE PURPOSE OF
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SENTENCING SUBJECTING APPELLANT TO UNCONSTITUTIONAL DOUBLE
JEOPARDY.”
{¶25} “III. THE COURT VIOLATED APPELLANT’S FIFTH AND FOURTEENTH
AMENDMENT RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT IN
IMPOSING AN EXCESSIVE SENTENCE OF CONSECUTIVE TERMS TOTALING
FOURTEEN YEARS’ INCARCERATION.”
{¶26} “IV. THE COURT ERRED IN DENYING DEFENDANT’S RULE 29
MOTION FOR ACQUITTAL AS THERE WAS NO EVIDENCE PRESENTED AS TO
WHETHER THE PRINCIPAL OFFENDER ENGAGED IN ANY ACTIONS WHICH
WOULD CONSTITUTE THE OFFENSE OF ROBBERY.”
{¶27} “V. THE JURY FUNDAMENTALLY LOST ITS WAY AND ENTERED
VERDICTS CONTRARY TO LAW AS THE EVIDENCE AT TRIAL STRONGLY
WEIGHED AGAINST APPELLANT’S GUILT.”
ANALYSIS
I.
{¶28} In her first assignment of error, appellant argues the trial court should have
declared a mistrial after she had contact with one of the jurors on the panel. We disagree.
{¶29} After deliberations began, the courtroom bailiff advised the trial court that a
juror spoke to appellant in the jurors’ bathroom. Juror 19 was brought in to the courtroom
outside the presence of the rest of the jury, with the parties present. Juror 19 said she
was in the jurors’ bathroom when she heard someone come in; she and the other person
both left their stalls at the same time; the other person was appellant; both women washed
their hands at the same time, and as they did so Juror 19 asked appellant what she named
Stark County, Case No. 2018CA00166 9
her baby. Appellant replied, “Braden, after his father,” and asked if Juror 19 would like to
see a picture of the child. Juror 19 said “Sure.” Appellant showed her a photo and said
the child “was her whole world.” Juror 19 responded that she had two children of her own
and both women walked out of the bathroom.
{¶30} The trial court asked Juror 19 whether she was wearing her juror badge
during this conversation and she said yes. Juror 19 stated she did not tell anyone else
about the conversation, including any other juror. The trial court asked appellant why she
spoke to Juror 19 and appellant said she didn’t realize she was in the jurors’ bathroom,
nor that the woman was a juror on her case.
{¶31} The trial court advised Juror 19 she would be removed and replaced with
an alternate juror. The parties agreed to the removal of Juror 19 and to replacement with
Juror 44. Neither party objected nor moved for a mistrial.
{¶32} The trial court stated Juror 19 would be replaced with Juror 44 and that the
rest of the panel would be questioned whether they had contact with anyone involved in
the case. T. III, 10-11. Any such inquiry does not appear in the record, and there is no
further reference to the incident on the record.
{¶33} In her first assignment of error, appellant argues that the trial court intimated
to the entire jury that she had improper contact with Juror 19, resulting in a quick period
of deliberation and two guilty verdicts. Appellant states, “By telling the jury that Juror 19
was being removed then questioning the remaining jurors on whether they had been
contacted by anyone involved in the case, the Court intimated to the jury that Appellant
contacted Juror 19.” Brief, 4-5. We find that this assertion, and the resulting conclusion,
Stark County, Case No. 2018CA00166 10
are not supported by the record. We will not speculate by what means the trial court
explained the removal and replacement of Juror 19.
{¶34} Appellant further argues that the trial court should have granted a mistrial,
citing R.C. 2945.33. That section states:
When a cause is finally submitted the jurors must be kept
together in a convenient place under the charge of an officer until
they agree upon a verdict, or are discharged by the court. The court,
except in cases where the offense charged may be punishable by
death, may permit the jurors to separate during the adjournment of
court overnight, under proper cautions, or under supervision of an
officer. Such officer shall not permit a communication to be made to
them, nor make any himself except to ask if they have agreed upon
a verdict, unless he does so by order of the court. Such officer shall
not communicate to any person, before the verdict is delivered, any
matter in relation to their deliberation. Upon the trial of any
prosecution for misdemeanor, the court may permit the jury to
separate during their deliberation, or upon adjournment of the court
overnight.
* * * *.
{¶35} The section cited by appellant does not entitled her to a mistrial solely due
to improper communication with a juror. Ordinarily, any private communication or contact
either directly or indirectly about a matter before the jury is presumptively prejudicial.
Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954), syllabus. The
Stark County, Case No. 2018CA00166 11
presumption is not conclusive, however. Id. It is incumbent upon the party complaining
about juror misconduct to demonstrate that the contact was prejudicial. Smith v. Phillips,
455 U.S. 209, 215–217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); see, also, State v.
Sheppard, 84 Ohio St. 3d 230, 233, 703 N.E.2d 286 (1998); State v. Phillips, 74 Ohio
St.3d 72, 88, 656 N.E.2d 643 (1995). Absent prejudice, there is no violation of due
process. Smith v. Phillips, supra, 455 U.S. at 217.
{¶36} We note appellant and her counsel were present when the trial court
discussed the replacement of Juror 19 with an alternate juror; no objection was raised
and defense trial counsel agreed to the replacement. The trial court was authorized to
replace Juror 19 with an alternate. R.C. 2945.29 states that “[i]f, before the conclusion of
the trial, a juror becomes sick, or for other reason is unable to perform his duty, the court
may order him to be discharged. In that case, if alternate jurors have been selected, one
of them shall be designated to take the place of the juror so discharged.” Likewise,
Crim.R. 24(G)(1) provides for the use of alternate jurors if regular jurors “become or are
found to be unable or disqualified to perform their duties.”
{¶37} Whether a juror is unable to perform his duty is a determination that lies
within the trial court's discretion. State v. Reid, 2nd Dist. Montgomery No. 19352, 2003-
Ohio-4087, ¶ 14, citing State v. Kish, 9th Dist. Lorain No. 02CA008146, 2003-Ohio-2426,
¶ 6 and State v. Tate, 2nd Dist. Clark No. 2431, 1989 WL 20301 (Mar. 7, 1989). In cases
involving outside influences on jurors, the trial court is granted broad discretion in dealing
with the contact and determining whether to declare a mistrial or to replace an affected
juror. State v. Johnson, 88 Ohio St. 3d 95, 2000-Ohio-276, 723 N.E.2d 1054. In Johnson,
supra, 88 Ohio St.3d at 107, the Ohio Supreme Court re-examined the procedure and
Stark County, Case No. 2018CA00166 12
applicable law a court must follow when an allegation is made that an improper
communication has occurred with a juror, citing its decision in State v. Phillips, 74 Ohio
St.3d 72, 88-89, 656 N.E.2d 643 (1995):
When a trial court learns of an improper outside
communication with a juror, it must hold a hearing to determine
whether the communication biased the juror. Smith v. Phillips, 455
U.S. 209, 215–216, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); Remmer
v. United States, 347 U.S. 227, 229–230, 74 S. Ct. 450, 98 L. Ed. 654
(1954). ‘In a criminal case, any private communication * * * with a
juror during a trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial * * *. [T]he
burden rests heavily upon the Government to establish, after notice
to and hearing of the defendant, that such contact with the juror was
harmless to the defendant.’ Id. The Sixth Circuit, however, has held
that the defense must prove that the juror has been biased. United
States v. Zelinka, 862 F.2d 92, 95 (C.A.6, 1988), citing Smith v.
Phillips, supra; contra United States v. Littlefield, 752 F.2d 1429,
1431 (C.A.9, 1985). In cases involving outside influences on jurors,
trial courts are granted broad discretion in dealing with the contact
and determining whether to declare a mistrial or to replace an
affected juror. See United States v. Daniels, 528 F.2d 705, 709–710
(C.A.6, 1976); United States v. Williams, 822 F.2d 1174, 1189
(C.A.D.C.1987).
Stark County, Case No. 2018CA00166 13
{¶38} In the instant case, the trial court held the requisite hearing with Juror 19
with the parties present, establishing what happened between Juror 19 and appellant.
The parties consented to the trial court’s replacement of Juror 19 and no objection was
raised. We find the trial court did not abuse its discretion in replacing Juror 19, and
appellant has not presented us with any authority contra.
{¶39} We also note that appellant did not object to this procedure, nor did she
move for a mistrial. Appellant does not explicitly invoke the plain-error rule, but pursuant
to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” The rule places several
limitations on a reviewing court’s determination to correct an error despite the absence of
timely objection at trial: (1) “there must be an error, i.e., a deviation from a legal rule,” (2)
“the error must be plain,” that is, an error that constitutes “an ‘obvious’ defect in the trial
proceedings,” and (3) the error must have affected “substantial rights” such that “the trial
court’s error must have affected the outcome of the trial.” State v. Dunn, 5th Dist. No.
2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos. 03-AP-318, 03-
AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted). The decision to correct a plain error
is discretionary and should be made “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Barnes, supra,
quoting State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶40} Appellee responds that the process of replacing Juror 19 with Juror 44 does
not rise to the level of plain error and we agree. In addition to appellant’s consent to the
replacement, she has not demonstrated material prejudice or that the result of the trial
Stark County, Case No. 2018CA00166 14
would have been different. In fact, as appellee points out, defense trial counsel may
have made a strategic decision to agree to the substitution of Juror 44 because that juror
was not tainted by the improper contact with appellant.
{¶41} Even if there was an ex parte, off-the-record communication between the
trial court and the rest of the jury, which we are not willing to speculate upon, such private
communication outside the presence of the defendant does not create a conclusive
presumption of prejudice. State v. Schiebel, 55 Ohio St. 3d 71, 84, 564 N.E.2d 54, 69
(1990), citing Remmer v. United States, supra, 347 U.S. at 229 and State v. Jenkins, 15
Ohio St. 3d 164, 236–237, 473 N.E.2d 264 (1984).
{¶42} We conclude the trial court did not abuse its discretion in replacing Juror 19
with Juror 44. Moreover, the process of substituting the alternate juror does not rise to
plain error. Appellant’s first assignment of error is overruled.
II.
{¶43} In her second assignment of error, appellant argues the trial court should
have merged the counts of robbery and involuntary manslaughter for purposes of
sentencing. We disagree.
{¶44} A defendant may be indicted upon and tried for allied offenses of similar
import, but may be sentenced on only one of the allied offenses. State v. Carr, 2016-Ohio-
9, 57 N.E.3d 262, ¶ 42 (5th Dist.), citing State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-
4569, 895 N.E.2d 149, ¶ 42. At sentencing, appellant argued her convictions upon one
count of complicity to involuntary manslaughter and one count of complicity to robbery,
along with the accompanying gun specifications, should merge. In response, appellee
submitted the statement of co-defendant Geiger, arguing that the robbery was motivated
Stark County, Case No. 2018CA00166 15
by a separate animus than the involuntary manslaughter. The trial court agreed and found
that the offenses did not merge.
{¶45} R.C. 2941.25 states as follows:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but
the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶46} The question of whether offenses merge for sentencing depends upon the
subjective facts of the case in addition to the elements of the offenses charged. State v.
Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 21. In a
plurality opinion, the Ohio Supreme Court modified the test for determining whether
offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St. 3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the elements of the
offenses in question and determine whether or not it is possible to commit one offense
and commit the other with the same conduct. Id. at ¶ 48. If the answer to such question
is in the affirmative, the court must then determine whether or not the offenses were
committed by the same conduct. Id. at ¶ 49. If the answer to the above two questions is
Stark County, Case No. 2018CA00166 16
yes, then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.
If, however, the court determines that commission of one offense will never result in the
commission of the other, or if there is a separate animus for each offense, then the
offenses will not merge. Id. at ¶ 51.
{¶47} Johnson's rationale has been described by the Court as “incomplete.” State
v. Earley, 145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Court has
further instructed us to ask three questions when a defendant's conduct supports multiple
offenses: (1) were the offenses dissimilar in import or significance? (2) were they
committed separately? and (3) were they committed with separate animus or motivation?
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative
answer to any of the above will permit separate convictions. Id. The conduct, the animus,
and the import must all be considered. Id.
{¶48} Appellate review of an allied-offense question is de novo. State v. Miku,
2018-Ohio-1584, 111 N.E.3d 558, ¶ 70 (5th Dist.), citing State v. Williams, 134 Ohio St. 3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶49} Appellant contends that the consecutive terms should have merged for
purposes of sentencing because they are allied offenses of similar import, involving the
same conduct and the same animus. R.C. 2903.04, the involuntary manslaughter statute,
provides: “No person shall cause the death of another or the unlawful termination of
another's pregnancy as a proximate result of the offender's committing or attempting to
commit a felony.” R.C. 2911.02, the robbery statute, states in pertinent part: “No person,
in attempting or committing a theft offense or in fleeing immediately after the attempt or
Stark County, Case No. 2018CA00166 17
offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the
offender's control.”
{¶50} Involuntary manslaughter and robbery are not allied offenses of similar
import. The former requires causing the death of another as a proximate result of
committing or attempting to commit a felony; robbery does not require that the victim be
killed or even injured. As appellee points out, robbery under this section is complete when
an offender attempts to commit a theft offense and has a deadly weapon on his person
or under his control. Robbery requires a theft offense or an attempt to commit one;
involuntary manslaughter does not, and robbery is only one of the many felonies that may
support a charge of involuntary manslaughter. Because each offense requires proof of
an element that the other does not, they are not allied offenses of similar import.
Therefore, reviewed in the abstract, involuntary manslaughter and robbery are not allied
offenses because the commission of one will not automatically result in commission of
the other.
{¶51} As we will address in greater detail infra in our discussion of her fourth and
fifth assignments of error, the evidence established appellant was complicit with Griffith
and Geiger in planning to “hit a lick” on a drug dealer. On video, appellant talks to Nate
Duncan and arranges a purchase of marijuana in the amount of $2800. She admitted to
investigators that she sent Duncan a photo of cash to “prove” that Griffith had the amount
required to buy the marijuana. Griffith appears throughout the videos, carrying the
firearm, racking and loading it. The location of the “buy” is discussed and changed; the
intended location is Monument Park.
Stark County, Case No. 2018CA00166 18
{¶52} The ensuing events are related by co-defendant Geiger, also captured on
video. Geiger said one of the people in Duncan’s group wanted to pat down Geiger and
Griffith; Griffith refused and drew his firearm. The ShotSpotter records, firearms, and
shell casings established that Griffith fired two shots, followed by one shot, answered by
four shots fired by Culver. Pursuant to Ruff, we conclude that the offenses are dissimilar
in import and significance, were they committed separately, and were committed with
separate motivations. State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892,
¶ 31.
{¶53} The trial court did not err in refusing to merge the offenses, as they are not
allied offenses of similar import. Appellant’s second assignment of error is overruled.
III.
{¶54} In her third assignment of error, appellant argues the trial court’s
consecutive aggregate sentence of 14 years constitutes cruel and unusual punishment.
We disagree.
{¶55} “[A]ppellate courts must adhere to the plain language of R.C.
2953.08(G)(2).” State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,
¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and
convincing evidence that the record does not support the sentencing court's decision. Id.
at ¶ 23. Clear and convincing evidence is that “‘which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.’” State v.
Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7, citing Marcum, supra.
Clear and convincing evidence is that measure or degree of proof which is more than a
mere “preponderance of the evidence,” but does not require the certainty of “beyond a
Stark County, Case No. 2018CA00166 19
reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶56} In the instant case, appellant argues the trial court erred in imposing an
“excessive” consecutive sentence. We note appellant does not argue that the trial court
failed to make the proper findings; instead, she disagrees with the weight afforded to
those findings. “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St. 3d 209, 16 N.E.3d 659,
2014-Ohio-3177, syllabus.
{¶57} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. This statute requires
the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton
Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶58} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences and
provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
Stark County, Case No. 2018CA00166 20
not disproportionate to the seriousness of the offender's conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control for
a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed
as part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶59} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender's conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
Stark County, Case No. 2018CA00166 21
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
or more of the offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct would adequately reflect the
seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶ 36.
{¶60} In this case, the record does establish that the trial court made all of the
findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.
Appellant disagrees with the import of those findings, however, claiming she is less
culpable because she was not present when the robbery and involuntary manslaughter
occurred at Monument Park; she acted under Griffith’s influence; and Culver was
engaged in criminal wrongdoing when he was shot. We do not find these arguments
compelling and note that in formulating her sentence, the trial court repeatedly referred
to appellant’s total lack of remorse and minimizing of her role in this incident that left two
dead. The evidence before us, particularly the videos of appellant nonchalantly planning,
encouraging, inciting, and fully participating in the plan to rob someone, fully supports the
trial court’s findings and refutes appellant’s claims here.
{¶61} We also note that in the sentencing entry, the trial court found that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender; are not disproportionate to appellant’s conduct and to the danger she poses
to the public; and at least two of the multiple offenses were committed as part of one or
Stark County, Case No. 2018CA00166 22
more courses of conduct, and the harm caused by two or more of the offenses was so
great or unusual that no single prison term for any of the offenses committed as part of
any of the courses of conduct would adequately reflect the seriousness of appellant’s
conduct.
{¶62} Based on our review, we find that the record demonstrates that the trial
court made the seriousness findings pursuant to R.C. 2929.12(B) and (C). Here, the trial
court's sentence was within the statutory range. Moreover, the record reveals that the trial
court properly considered the statutory purposes and factors of felony sentencing, and
the decision is supported by clear and convincing evidence. Accordingly, we find that the
trial court did not err in the imposition of appellant's prison sentence, including imposition
of consecutive terms, and did not fail to consider the statutory factors.
{¶63} Appellant’s third assignment of error is overruled.
IV., V.
{¶64} Appellant’s fourth and fifth assignments of error are related and will be
considered together. Appellant argues her convictions are not supported by sufficient
evidence and are against the manifest weight of the evidence. We disagree.
{¶65} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St. 3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
Stark County, Case No. 2018CA00166 23
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a 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.”
{¶66} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶67} Appellant was found guilty upon one count of complicity to commit robbery
pursuant to R.C. 2911.02(A)(1), which states: “No 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.”
Appellant was also found guilty upon one count of complicity to commit involuntary
manslaughter pursuant to R.C. 2903.04(A), which states: “No person shall cause the
death of another * * * as a proximate result of the offender's committing or attempting to
commit a felony.” The relevant portion of the complicity statute, R.C. 2923.03(A)(2) and
(A)(3), states: “No person, acting with the kind of culpability required for the commission
of an offense, shall (2) [a]id or abet another in committing the offense; [and/or] (3)
Stark County, Case No. 2018CA00166 24
[c]onspire with another to commit the offense in violation of section 2923.01 of the
Revised Code.” Appellant argues there is no evidence to establish what occurred in
Monument Park, including no evidence to establish Griffith engaged in a theft offense or
attempted to commit a theft offense against Culver; consequently, there is no evidence
to establish that appellant aided, abetted, or conspired with Griffith to do so.
{¶68} We have recognized that in order to support a conviction for complicity by
aiding or abetting under 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 criminal intent of the principal,
and such intent may be inferred from the circumstances surrounding the crime. State v.
Umstead, 5th Dist. No. 16 CA 004, 2017-Ohio-698, 85 N.E.3d 518, ¶ 19, citing State v.
Shrider, 5th Dist. Licking No. 07 CA 111, 2008-Ohio-3648, 2008 WL 2840598, ¶ 41,
internal citation omitted. Mere approval or acquiescence, without expressed concurrence
or the doing of something to contribute to an unlawful act, is not aiding or abetting. Id.,
citing State v. Mullins, 34 Ohio App. 3d 192, 200, 517 N.E.2d 945 (5th Dist.1986).
{¶69} In the instant case, we find appellee presented sufficient evidence to
support appellant’s conviction upon complicity to commit robbery; specifically, we cite the
compelling evidence of the Ring videos. Appellant is on the videos literally supporting,
encouraging, assisting, advising, and inciting the robbery of a drug dealer, who happened
to be Nate Duncan, and the people Duncan brought with him, including Tyrell Culver.
Appellant admitted she, Griffith, and Geiger planned to rob a drug dealer for money.
Equally evident on the video is that Griffith went to the meeting with a firearm, and
appellant was fully complicit in that decision.
Stark County, Case No. 2018CA00166 25
{¶70} Appellant argues there is no evidence to establish what happened in the
park. Pursuant to R.C. 2011.02(A)(1), appellee only needed to prove that the defendant
attempted to commit a theft, having a deadly weapon under his control. We find the
record is replete with evidence that Griffith attempted to commit a theft, armed with a
deadly weapon, and that appellant was fully complicit in those actions. The record is not
devoid of evidence of what transpired in the park: the ShotSpotter tells the story of the
first volley of shots and its aftermath, leaving behind two dead as the others ran away.
Culver and Griffith fell with their firearms at their sides, Culver having fired 4 rounds and
Griffith having fired 3 rounds. Meanwhile, Geiger pounds on the door back at the
residence, telling appellant Griffith may have been shot, and she soon realizes he is at
the hospital. Geiger tells her the Duncan group showed up and Griffith was unwilling to
be patted down, leading to the ensuing chaos of gunfire.
{¶71} Construing all of the evidence in favor of appellee, sufficient evidence
supports appellant’s convictions. Also, this is not the case in which the jury clearly lost
its way and created such a manifest miscarriage of justice that the convictions must be
overturned and a new trial ordered. Appellant’s convictions are not against the manifest
weight of the evidence.
{¶72} Appellant’s fourth and fifth assignments of error are overruled.
Stark County, Case No. 2018CA00166 26
CONCLUSION
{¶73} Appellant’s five assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, J., and
Gwin, P.J., concur.
Hoffman, J., concurring separately.
Stark County, Case No. 2018CA00166 27
, concurring
{¶74} I concur in the majority’s analysis and disposition of Appellant’s first, third,
fourth and fifth assignments of error.
{¶75} I further concur in the majority’s disposition of Appellant’s second
assignment of error. I write separately to clarify what I believe is the proper focus when
analyzing whether offenses are allied.
{¶76} The majority concludes involuntary manslaughter and robbery are not allied
offenses of similar import because the former requires causing the death of another as a
proximate result of committing or attempting to commit a felony; robbery does not require
the victim be killed or even injured. (Maj. Op. at ¶50). While this is true, the majority
focuses on a comparison of the elements of the two offense and not on the defendant’s
conduct.
{¶77} The majority later reiterates because each offense required proof of an
element the other does not, they are not allied offenses of similar import, because the
commission of one will not automatically result in the commission of the other. (Maj. Op.
at ¶50). Again the majority’s focus seemingly is based upon an analysis of the elements
of the two charges rather than the defendant’s conduct.
{¶78} I am not convinced involuntary manslaughter and robbery can never be
allied offenses. I think it is hypothetically possible to commit both robbery and involuntary
manslaughter by the same conduct.
{¶79} For example, if a victim suffers a heart attack as a result of a defendant
brandishing a gun during a robbery, I suggest the defendant’s same conduct may result
in the commission of both offenses. See State v. Kerby, 2nd Dist. Clark No. 2013 CA 31,
2014-Ohio-3358, ¶13, (“[I]t is possible to commit involuntary manslaughter under R.C.
Stark County, Case No. 2018CA00166 28
2903.04(A) and aggravated robbery under R.C. 2911.01(A)(1) with the same conduct,
thus satisfying the first prong of the Johnson test.”)
{¶80} However, I do agree under the facts of this case the offenses were not allied.
As noted by the majority, the robbery was arguably completed when Appellant attempted
the theft offense while in possession of a gun. The robbery was motivated by a separate
animus from the involuntary manslaughter and the offenses were committed separately
under the facts of this case. And there was a separate, distinct harm (death) caused by
the gunfire from that of the robbery.
{¶81} Accordingly, I concur in the majority’s decision to overrule Appellant’s
second assignment of error.
_____________________________________
HON. WILLIAM B. HOFFMAN