State v. Sanders , 2019 Ohio 2566 ( 2019 )

[Cite as State v. Sanders, 2019-Ohio-2566.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 106744
v. :
NAVI SANDERS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION EN BANC
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 27, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-617652-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin and Maxwell Martin,
Assistant Prosecuting Attorneys, for appellee.
Rick L. Ferrara, for appellant.
RAYMOND C. HEADEN, J.:
Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland
State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court
determined that a conflict existed between the original panel’s decision in this case
and this court’s prior decision in State v. Muniz, 8th Dist. Cuyahoga No. 93528,
2010-Ohio-3720, regarding what must be proven to support a conviction for
intimidation.
In his motion for en banc consideration, the appellant also alleged
that this court’s prior decision presents a conflict with State v. McLean, 8th Dist.
Cuyahoga No. 106293, 2018-Ohio-2232, and State v. Teaque, 8th Dist. Cuyahoga
No. 106469, 2018-Ohio-3997, as to whether this court must conduct an allied-
offense analysis and recognize plain error where the sentences for the alleged allied
offenses were ordered to be served concurrently. We find no conflict here. The panel
opinion does not conflict with Teaque because that case involved the merger of allied
offenses where sentences were ordered to be served consecutively. Further, the
panel opinion does not conflict with McLean because the Ohio Supreme Court has
held that the recognition of plain error under Crim.R. 52(B) is discretionary. State
v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. Therefore, the
question presented is not a conflict of law but rather a divergence in the exercise of
judicial discretion, and we decline to accept this issue for en banc resolution.
Having applied the law adopted by the en banc court here on the issue
of what must be proven to support an intimidation conviction, the panel opinion
released November 15, 2018, stands as the decision of the court. The text of that
opinion is appended to this en banc decision. We overrule all prior decisions of this
court inconsistent with our holding here.
It is the opinion of the en banc court that the fact that an underlying
criminal or delinquent act occurred is not an essential element of the crime of
intimidation of a witness.
R.C. 2921.04(B)(2) states that no person, knowingly and by force or
threat of harm, “shall attempt to influence, intimidate, or hinder * * * [a] witness to
a criminal or delinquent act by reason of the person being a witness to that act[.]”
In this context, a “witness” means “any person who has or claims to have knowledge
concerning a fact or facts concerning a criminal or delinquent act, whether or not
criminal or delinquent child charges are actually filed.” R.C. 2921.04(E).
“The purpose of an indictment is to inform the accused of the crime
with which he is charged. The indictment, therefore, provides notice to the
defendant of the charges against him so that he may prepare a defense.” State v.
Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 11, quoting State v.
Davis, 8th Dist. Cuyahoga No. 61076, 1992 Ohio App. LEXIS 4754, 2
(Sept. 17, 1992).
In Muniz, 8th Dist. Cuyahoga No. 93528, 2010-Ohio-3720, the
defendant was charged with intimidation of a crime victim in violation of R.C.
2921.04(B). The indictment in Muniz made no mention of the underlying offense.
Further, a review of the facts in that case shows that it was not clear that an
underlying criminal act had occurred, let alone the nature of such a criminal act.
The court in Muniz was concerned with the due process implications of the
defendant not being given adequate notice of the charges she faced. In light of this
concern, the court in Muniz found the state’s failure to give notice of the underlying
predicate acts in the indictment rendered it defective from the outset.
Nothing in this en banc opinion shall be construed to undermine the
holding of Muniz with respect to notice requirements. We maintain that a defendant
is entitled to adequate notice of the crimes against which they must defend themself.
A charge of intimidation does not require a conviction on the
underlying offense. Had that been the legislature’s intent, it could easily have used
the words “criminal conviction” or “delinquent adjudication” rather than “criminal
or delinquent act.” Instead, the state need only prove that the intimidation victim
had knowledge about a fact or facts concerning the underlying criminal or
delinquent act, and that the defendant knowingly and by force or threat of harm
intimidated the victim because of the victim’s knowledge of facts concerning the
matter. While a defendant must be apprised of the nature of the underlying criminal
or delinquent act, that act is not a separate element of the offense that must be
proven beyond a reasonable doubt. In holding that the occurrence of the underlying
act is an essential element of intimidation, this court imposed an unworkable
burden on the state. In making a case for intimidation, a prosecutor is not required
to establish beyond a reasonable doubt that the predicate act occurred. Such a
requirement, particularly in cases where the underlying offense may have been
committed by someone other than the defendant in the intimidation case, would
require a trial within a trial that we do not believe was intended or contemplated by
the legislature in enacting R.C. 2921.04.
We hold that the occurrence of the underlying criminal or delinquent
act is not an essential element of the offense of intimidation that must be proven
beyond a reasonable doubt. To the extent that our decision in Muniz, 8th Dist.
Cuyahoga No. 93528, 2010-Ohio-3720, is inconsistent with this holding, it is
overruled.
RAYMOND C. HEADEN, JUDGE
MARY EILEEN KILBANE, A.J., PATRICIA ANN BLACKMON, MARY J. BOYLE,
FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T.
GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN ANN
KEOUGH, ANITA LASTER MAYS, and MICHELLE J. SHEEHAN, JJ., CONCUR
Appendix
State v. Sanders, 8th Dist. Cuyahoga No. 106744, 2018-Ohio-4603 (panel decision
journalized November 15, 2018):
MELODY J. STEWART, J.:
A jury found defendant-appellant Navi Sanders guilty of felonious
assault, discharging a firearm near a prohibited premises, improper handling of a
firearm in a motor vehicle, and intimidation of a crime witness. The charges
stemmed from the death of a 14-year-old child who was stabbed while sleeping in
the same house where Sanders and her boyfriend, Jacque Renode, were staying.
Just days after the stabbing, Sanders and Renode were seen in the back seat of a car
moving down the same street where the stabbing occurred. Renode fired several
shots from the car in the direction of a teenage victim, who had been present in the
house where the stabbing occurred, and later heard Sanders and Renode make
incriminating statements about the stabbing. The state theorized that Renode
murdered the child, and that Sanders was complicit in intimidating the victim from
assisting the police investigation. Sanders raises a number of assignments of error
relating to evidence supporting the firearm specifications, the weight of evidence,
the jury instructions on intimidation, prosecutorial misconduct, the assistance of
trial counsel, and whether certain sentences should have merged.
I. Intimidation of a Witness
The intimidation count charged Sanders with intimidating a witness
to a murder. Sanders maintains that the state did not prove that the child’s death
was the result of murder, nor did it prove who committed the murder. She argues
that because Renode had been charged with the child’s murder, but had yet to be
tried, the court allowed the jury to assume that Renode murdered the child. She
maintains that this assumption was a failure of proof on the intimidation count and
otherwise tainted her ability to receive a fair trial.
A. Sufficiency of the Evidence
Count 5 of the indictment charged Sanders with intimidation in
violation of R.C. 2921.04(B)(2). That section states that no person, knowingly and
by force or threat of harm, “shall attempt to influence, intimidate, or hinder * * * [a]
witness to a criminal or delinquent act by reason of the person being a witness to
that act[.]” In this context, a “witness” means “any person who has or claims to have
knowledge concerning a fact or facts concerning a criminal or delinquent act,
whether or not criminal or delinquent child charges are actually filed.”
R.C. 2921.04(E).
The intimidation charge did not require the state to prove beyond a
reasonable doubt that a murder occurred, much less who committed the murder.
Had that been the legislature’s intent, it could easily have used the words “criminal
conviction” or “delinquent adjudication” rather than “criminal or delinquent act.”
The state only had to prove that the victim had knowledge about a fact or facts
concerning the child’s death and that Sanders knowingly and by force or threat of
harm intimidated the victim because of the victim’s knowledge of facts concerning
the matter. As charged in the indictment, the to-wit clause referencing murder
applied merely to describe the circumstances of the criminal act; the precise nature
of the criminal act was not a separate element of proof for the offense of
intimidation.
The evidence showed that the victim of the intimidation count, who
was 13 years of age at the time, slept at the house where the stabbing occurred. He
testified that after family members found the child, he personally saw the child on a
bedroom floor, wrapped in a quilt and bleeding (the child had been stabbed in the
neck). The child’s mother told the victim to go to a local grocery store and locate her
fiancé. The victim found the fiancé with Sanders and Renode. After the victim said
that the child “was bleeding” and might be dead, the fiancé and Renode started
running to the house, but Sanders only walked, telling the victim that the child was
“not dead, he’s okay.” When they returned to the house, Renode went to the
bedroom, but Sanders remained outside. The child testified that Renode then came
out of the bedroom “really quick and said I have to get out of here * * *.”
Trial testimony established that Sanders and Renode had previously
stayed at the mother’s house, but were told to move out after “a bunch of
altercations” with her children. As she was moving out, Sanders told the mother
that “I’ll be back and I’m going to kill you and your kids.” Sanders and Renode
returned to the house a few weeks later, claiming that they were homeless and
needed a place to stay. The mother took them in as an act of charity. Two days later,
the mother became upset after discovering that Renode had given an alcoholic drink
to the child. After sending the child to bed, the mother, her fiancé, Sanders, and
Renode watched a movie. The mother checked on the child and found him sleeping
on the floor, so she told Sanders and Renode that they could sleep in the child’s bed.
When the mother checked on the child two hours later, she found the child wrapped
in a quilt and bleeding from a stab wound to the neck. Sanders and Renode were no
longer in the house. The day after the child’s death, the mother’s fiancé found a pair
of blood-soaked pants belonging to Renode in a clothes pile in one of the bedrooms.
The child’s mother testified that in the days following the stabbing,
Renode’s name was mentioned most frequently in speculation about who killed her
son, given that bloody pants belonging to Renode were found in the house. Four
days after the stabbing, the victim and his girlfriend were walking down the street
where the stabbing occurred. They saw a car driving slowly down the street, with
Renode and Sanders in the back seat. Renode, sitting behind the driver, extended a
gun out the car window and fired about six times. Two bullets struck a vehicle next
to where the victim was standing. The car then sped away.
The state offered no expert testimony on the cause of the child’s
death, nor did it offer any evidence in the form of police testimony regarding an
investigation into the child’s death. Nevertheless, the jury could reasonably infer
that the child, having been stabbed in the neck and wrapped in a quilt, died as result
of foul play that rose to the level of a criminal act. Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (it is “the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts”).
Evidence that Renode and Sanders may have been involved in the
child’s death provided a motive for intimidation. The victim testified that Renode
and Sanders both made incriminating statements on the night of the child’s death.
And the discovery of Renode’s bloody pants appeared to tie him to the death. These
background facts put into perspective the victim’s testimony that the car in which
Sanders and Renode were traveling slowly down the street slowed down and that
Renode fired multiple shots at him. A rational trier of fact could have found the
shooting to be an act to intimidate the victim from testifying in a future criminal
proceeding related to the child’s death. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus. The facts support that the shots were
intended to injure the victim and/or intimidate him. There is no evidence of any
other plausible explanation for the shooting.
In addition to the direct evidence of intimidation, the jury could
rationally find that Sanders fled the jurisdiction with Renode, an act that showed a
consciousness of guilt. State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897 (1969),
paragraph six of the syllabus (“Flight from justice * * * may be indicative of a
consciousness of guilt.”). Testimony showed that warrants were issued for the arrest
of Sanders and Renode just days after the shooting. It is unclear when the two left
Ohio, but Renode was forcibly apprehended six months later in Indiana.
Although there was no evidence that Sanders fired the shots at the
victim, a rational trier of fact could find Sanders complicit in intimidating the victim;
that is, that she acted with the kind of culpability required for the commission of the
offense and she aided and abetted Renode. See R.C. 2923.03(A). Aiding and
abetting can be inferred by presence, companionship, and conduct before and after
the offense is committed. State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796(2001). Evidence that Sanders and Renode were together on the night the child
died, along with incriminating statements both she and Renode later made, shows
that Sanders would have benefitted just as much as Renode by intimidating the
victim. This self-interest and companionship was sufficient evidence from which
the jury could infer that Sanders was complicit in committing intimidation.
For the same reasons, we reject Sanders’s argument that the state
failed to offer evidence sufficient to prove the firearm specifications attached to
Counts 2 through 4 of the indictment. Those counts — felonious assault, discharge
of a firearm near prohibited premises, and improper handling of a firearm in an
automobile — were related to the intimidation count in that they pertained to
conduct that occurred inside the car at the same time as the intimidation count
(which did not contain a firearm specification). The culpability that Sanders had in
intimidating the victim was applicable to the firearm specifications. State v.
Chapman, 21 Ohio St.3d 41, 42-43, 487 N.E.2d 566 (1986); State v. Rucker, 8th
Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 43. The only remaining question is
whether a rational trier of fact could find that Renode fired shots from the car, thus
establishing the operability of the handgun. See State v. Murphy, 49 Ohio St.3d
206, 206, 551 N.E.2d 932 (1990), syllabus. The victim gave testimony which, when
viewed most favorably to the state, established that Renode fired the gun from the
moving car. The jury could rationally find Sanders was subject to a firearm
specification because she aided and abetted Renode.
B. Unfair Trial
Sanders next makes a broader argument that the court should have
granted a mistrial because of repeated statements by the mother, and assertions by
the state that Renode murdered the child.
Our discussion of Sanders’s argument relating to the sufficiency of the
evidence informs the present argument — because the state had to prove that the
victim had been a “witness” to a criminal act (that is, the child had knowledge
concerning a fact or facts concerning a criminal act), it necessarily had to provide
context for Sanders’s belief that the victim had been a witness to a criminal act. See
State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 216. The
mother thus gave relevant testimony about the circumstances of her child’s death.
It is true that the state told the jury in its opening statement that the
child “was murdered in his bedroom, his throat was slashed, by Jacque Renode, by
Navi Sanders’[s] boyfriend,” but this was irrelevant. This statement was not
evidence — nothing said in an opening statement is considered evidence. State v.
Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 48. What mattered
was that the state prove that Sanders was complicit in intimidating a witness who
had knowledge concerning a fact or facts about a criminal act. The jury could have
drawn different conclusions on whether the child died as result of murder or some
other criminal homicide. We thus conclude that the court did not abuse its
discretion by denying Sanders’s motion for a mistrial.
C. Jury Instructions
Although defense counsel stated that he had no objection to the jury
instructions, Sanders now claims plain error because the instructions for the offense
of intimidation did not require the jury to find beyond a reasonable doubt that the
child had been murdered. Sanders also complains that the jury instruction failed to
list any of the required elements of murder.
We summarily reject the argument that the jury instructions were
erroneous based on our discussion in Part I(A) of this opinion. The state did not
have to prove beyond a reasonable doubt that a murder occurred; it only had to
prove that Sanders subjectively believed that the victim had knowledge concerning
the stabbing and that Sanders was complicit with Renode in firing shots at the victim
in order to intimidate him.
Because the jury instructions were not plainly erroneous, defense
counsel’s failure to object to them did not deprive Sanders of her constitutional right
to the effective assistance of counsel. State v. Delawder, 4th Dist. Scioto
No. 10CA3344, 2012-Ohio-1923, ¶ 4 (“counsel had no duty to object to an
appropriate instruction”).
II. Manifest Weight
Sanders asks us to independently weigh the evidence and conclude
that testimony by the child’s mother was completely fabricated because she testified,
in seeming contradiction to the victim, that the victim claimed to have seen Sanders
and Renode in the car, with a gun in Renode’s hand, claiming that he would “come
back and kill you and your family, your mother, as well as [the child’s] * * * family.”
Although the victim testified and denied hearing any voices coming
from the car, that contradiction did not call the verdict into question. The victim
plainly identified both Sanders and Renode, an identification that was credible
because of his familiarity with them and interaction with them on the night the child
died. This familiarity mitigated concerns about any inconsistencies in portions of
the witnesses’ testimony.
In addition to the strength of the victim’s identification, other
evidence made for a strong circumstantial case against Sanders. Renode and
Sanders left the house at some point before the mother discovered that her son had
been stabbed. When the victim later found Sanders and Renode and told them that
the child was bleeding, Sanders replied that the child was not dead and that he would
be “okay.” The jury could have viewed the affirmative nature of that statement as
indicating that Sanders had some prior knowledge of what transpired with the child.
Renode’s rapid departure after seeing the child’s condition (“I have to get out of
here”) suggested a consciousness of guilt. By returning to the area where the
stabbing occurred and shooting at the victim who had knowledge of statements
made by both Sanders and Renode in connection with the stabbing, the act of firing
shots at the victim could be viewed as an attempt to intimidate him into silence.
Even more indicative of a consciousness of guilt was evidence that Sanders and
Renode left the state as warrants were issued for their arrest in the course of the
investigation into the child’s death. They were arrested six months later, under
circumstances in which Renode had to be apprehended with the use of force.
There were, as in many criminal cases, inconsistencies in how
witnesses testified. It was for the jury to “believe or disbelieve any witness or accept
part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67,
197 N.E.2d 548 (1964). This is not the exceptional case where the evidence weighs
heavily against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997).
III. Prosecutorial Misconduct
Sanders complains that the state engaged in misconduct by referring
to the child’s death as a “murder” without actually proving that the child died as a
result of a homicide. She also complains that the state improperly referenced facts
not in evidence and vouched for the credibility of its witnesses.
For reasons previously stated, we reject Sanders’s argument that the
state improperly referred to the child’s death as the result of a “murder” while
examining witnesses. In any event, referring to the child’s death as a “murder” was
acceptable as a euphemism for “foul play” in this particular case and a fair
characterization of the evidence based on unrebutted testimony that the child died
after being stabbed in the neck while seemingly asleep. There was no rational basis
to believe that the child died as a result of any accident, particularly when he had
been wrapped in a quilt, possibly to hide his injuries.
Sanders’s next argument references testimony by the victim’s
girlfriend that she saw a text message from the mother’s fiancé stating that “I know
what happened that night.” This text message came to light during trial, and, after
the girlfriend had testified for the state, Sanders recalled the girlfriend as a witness.
During Sanders’s closing argument, defense counsel referenced the girlfriend’s
testimony and questioned why she had not been contacted by police detectives until
the eve of trial. In response to defense counsel’s assertion that the police did not
contact the girlfriend, the assistant prosecuting attorney stated: “So [defense
counsel] says that [the girlfriend] wasn’t contacted. I think you’ll remember the
testimony was that her mother did not want her to be a part of this. But we did find
her in time for trial. Again he wants you to trust her but ignore her honest and deep-
held belief that defendant was in that car.” Defense counsel objected, and the court
sustained the objection. Sanders now argues that the state improperly vouched for
the truthfulness of its own witness.
“It is improper for an attorney to express his or her personal belief or
opinion as to the credibility of a witness or as to the guilt of the accused.” State v.
Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). By charactering the
girlfriend’s belief that Sanders was in the car as “honest,” the state arguably
expressed an opinion on her credibility. Nevertheless, the court sustained Sanders’s
objection and later instructed the jury that closing arguments were not evidence and
that the jury should not speculate on why the court sustained any objection. This
limited the potential for prejudice from any misconduct. State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 250, 253.
In a different part of its closing argument, the state noted that
Sanders’s attempt to intimidate the witnesses did not stop those witnesses from
coming to court and “telling you the truth.” Sanders did not object to this statement,
so she forfeited all but plain error. Dean at ¶ 237. Unlike the state’s statement that
the girlfriend was “honest,” the statement that the witnesses came to court for the
purpose of “telling you the truth” did not vouch for the credibility of any specific
statement. There is enough difference in the semantic content of the statement that
it did not vouch for the witness’s credibility and rise to the level of plain error.
IV. Allied Offenses
For her final assignment of error, Sanders maintains that the
sentences for felonious assault, improper handling of a firearm in a motor vehicle,
and discharge of a firearm near a prohibited premises should have merged because
they all occurred simultaneously.
During sentencing, the court referenced all of the counts on which the
jury returned a guilty verdict and stated, “[i]t’s my understanding that none of those
counts would merge for purposes of sentencing; is that correct?” The state replied,
“yes”; defense counsel said nothing. By failing to object, Sanders forfeited all but
plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,
¶ 21.
Even if some plain error in failing to merge the sentences occurred,
an appellate court is not obligated to reverse. The application of the plain error
doctrine should only be applied “‘under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” Id. at ¶ 23, quoting State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The court
imposed a total 15-year sentence on the felonious assault count, including
mandatory consecutive time for three- and five-year firearm specifications. The
sentences for the remaining counts were ordered to be served concurrently. The
order of concurrent service means that recognition of plain error would not affect
the length of Sanders’s sentence. No manifest miscarriage of justice would occur if
the counts were not merged.
Judgment affirmed.