State v. Zan , 2013 Ohio 1064 ( 2013 )

[Cite as State v. Zan, 2013-Ohio-1064.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24600
v. : T.C. NO. 09CR3496/3
PANDORA ZAN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of March , 2013.
..........
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Pandora J. Zan was convicted by a jury of (1) complicity to commit
2
aggravated murder (prior calculation and design), (2) complicity to commit aggravated
murder (while committing aggravated robbery – deadly weapon), (3) complicity to commit
aggravated murder (while committing aggravated robbery – serious physical harm),
(4) complicity to commit aggravated robbery (deadly weapon), (5) complicity to commit
aggravated robbery (serious physical harm), (6) obstructing justice, (7) tampering with
evidence (fingerprints), and (8) tampering with evidence (laptop). The charges arose from
the role Zan played in the murder of her husband, Charles Zan, by her son, Cody Henderson,
and her attempts to cover up their involvement in the crimes.
{¶ 2} At sentencing, the three complicity to commit aggravated murder counts
were merged into Count 1, and the two complicity to commit aggravated robbery counts
were merged into Count 5. Zan received an aggregated sentence of life in prison without
the possibility of parole, plus 25 years.
{¶ 3} Zan appeals from her conviction, claiming that the trial court erred in
denying her motion to suppress evidence and in allowing witnesses to testify about
statements made by her co-conspirator, Henderson. She further claims that her sentence
was an abuse of discretion. For the following reasons, the trial court’s judgment will be
affirmed.
I.
{¶ 4} At approximately 6:00 a.m. on October 17, 2009, Charles Zan, Pandora
Zan’s husband, was stabbed to death in the couple’s apartment on Springboro Pike in
Miamisburg. A few items, including two laptops and Charles Zan’s firearm, were taken by
the perpetrator. Shortly thereafter, at 6:13 a.m., Zan contacted the police.
[Cite as State v. Zan, 2013-Ohio-1064.]
{¶ 5} On the day of the murder and the days that followed, Zan made numerous
statements to the police, both at her residence and at the police station. Zan initially
claimed that she and her husband had been assaulted by intruders and that she was
unconscious while her husband was killed. On October 19, Zan’s daughter, Misty
Henderson, told the police that Cody Henderson (her brother) had killed Charles Zan, their
stepfather, and that her mother (Zan) wanted to tell the police what had happened. Zan also
implicated her son. That day, Zan assisted the police in apprehending Henderson. At this
juncture, Zan was not charged or arrested for any crimes in connection with her husband’s
death.
{¶ 6} In April 2010, Zan told her probation officer (in an unrelated case) that she
wanted to speak to prosecutors because she was concerned that Henderson was making
statements to the police that implicated her in her husband’s death. Detectives came to
Zan’s home and spoke with her for more than two hours. Zan initially denied any
involvement in the murder, but ultimately confessed to planning the murder with Henderson.
At the conclusion of the interview, Zan was taken into custody and transported to the police
department, where she made additional incriminating statements. Zan was subsequently
indicted on numerous counts of complicity to commit aggravated murder, complicity to
commit aggravated robbery, tampering with evidence, and obstructing justice, all stemming
from her involvement in her husband’s murder.
{¶ 7} In June 2010, Zan filed a motion to suppress all statements that she made to
the police. Zan claimed that her statements were made in violation of her rights under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A hearing on the
motion was held on August 5, 2010. In a supplemental memorandum filed (with the court’s
4
permission) following the hearing, Zan asserted that the statements she made on October 19,
2009, must be suppressed because she had invoked her right to counsel. She further
claimed that her statements of April 27, 2010, were involuntary and were made as a result of
an interrogation technique recognized as unlawful in Missouri v. Seibert, 542 U.S. 600, 124
S.Ct. 2401, 159 L.Ed.2d 643 (2004). The trial court overruled the motion in its entirety.
{¶ 8} Shortly before trial, the State filed a motion asking the court to allow the
admission of co-conspirator statements at trial, pursuant to Evid.R. 801(D)(2)(e). The
motion concerned statements by Cody Henderson to Nicholas Howard and Brittannie
Michelle Taylor. The court permitted the statements to be used at trial.
{¶ 9} Zan was tried in March 2011. She was convicted of all charges, and the
court sentenced her to a mandatory term of life in prison without the possibility of parole for
conspiracy to commit aggravated murder, a mandatory term of ten years in prison for
complicity to commit aggravated robbery, and 5 years each for the remaining charges; all the
sentences were to be served consecutively.
{¶ 10} Zan raises three assignments of error on appeal.
II.
{¶ 11} Zan’s first assignment of error states:
THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT’S
MOTION TO SUPPRESS.
{¶ 12} In her first assignment of error, Zan claims that the trial court erred in
denying her motion to suppress the statements she made on April 27, 2010. First, she
argues that she should have been given Miranda warnings at the start of the interview at her
5
apartment. Second, she asserts that the subsequent formal interview at the police station
was the result of an improper “question first, Mirandize later” police tactic.
{¶ 13} When ruling on a motion to suppress, “the trial court assumes the role of
trier of facts and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2d
Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th
Dist.1994). In reviewing a trial court’s decision on the motion to suppress, an appellate
court must accept the trial court’s findings of fact as true, if they are supported by competent,
credible evidence. State v. Dudley, 2d Dist. Montgomery No. 24904, 2012-Ohio-960, ¶ 6.
The appellate court must then determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard. Id.{¶ 14} The trial court made extensive findings in its ruling denying Zan’s motion to
suppress. With respect to the interactions between the police and Zan on April 27, the court
found the following facts:
Law enforcement had no further contact with Defendant until April
27, 2010. Defendant had told her probation officer [in an unrelated case]
that she wanted to speak with the police because she was concerned that
Cody Henderson had begun making statements to police that implicated
Defendant. Sgt. Muncy and Det. Tom Thompson went to Defendant’s
apartment on King Avenue in Dayton, Ohio on April 27th. Muncy and
Thompson were dressed in plain clothes. Defendant voluntarily let them into
her apartment. Defendant was told that she was free to not speak with them.
6
Defendant stated that she was willing to speak. Defendant moved around
her apartment. She got up to smoke near the front door. Defendant never
asked the officers to leave. Defendant never requested an attorney. No
threats or promises were made to Defendant during this interview. An audio
recording was made of this interview and admitted as State’s Ex. 6.
Based on statements made by Defendant at her apartment on April
27th, Sgt. Thompson left Defendant’s apartment to contact the prosecutor’s
office. Based upon that contact with the prosecutor’s office, Defendant was
taken into custody. Defendant was not handcuffed, but Defendant was
transported to the police station and Defendant was not free to leave. On the
way to the police station, they stopped at a fast food restaurant to get
Defendant food, which she ate.
Defendant was transported to the Miamisburg police stations’
interview room. Defendant was advised of her Miranda rights using a
written pre-interview Miranda form. Defendant stated that she understood
her rights and the waiver of them. Defendant had been arrested on two prior
occasions (an armed robbery [in 2002] and also earlier in 2010 [for petty theft
and forgery]), where she had received Miranda warnings (State Ex. 12, 13).
Defendant voluntarily signed the waiver of rights form (State Ex. 8). No
threats or promises were made to Defendant on April 27th. The entirety of
the in-custody April 27th interview was video recorded. There are no
indications whatsoever of any drug or alcohol impairment of Defendant
7
during this interview, or during any of the other interviews of Defendant.
During the custodial interview, Defendant took a substantial amount
of time to write out a six page statement (State Ex. 10) and an “apology
letter” to the family of the victim (State Ex. 11). As is the case with all of
the recorded interviews of Defendant, Defendant was at all times treated
courteously and in a non-threatening manner by the police. The record is
totally devoid of any evidence of duress, coercion or threats visited upon
Defendant in any way.
Following the April 27th interview at the police station, Defendant
requested the opportunity to talk face-to-face with her family. The
Detectives granted this request. Misty Henderson and other family members
came to the police station and met with Defendant in the records section of
the police department. A ten minute conversation occurred, with police
present. Defendant was then transported to the Montgomery County Jail.
{¶ 15} The trial court indicated that it had considered the testimony of Sgt. Muncy
at the suppression hearing and reviewed the video/audio recordings admitted into evidence,
as well as the written exhibits. We have also reviewed the transcript of the suppression
hearing, as well as audio and video recordings and documentary evidence from April 27,
2010.
{¶ 16} In Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States
Supreme Court held that the State may not use statements stemming from a defendant’s
custodial interrogation unless it demonstrates the use of procedural safeguards to secure the
8
defendant’s privilege against self-incrimination. Id. at 444. Police are not required to give
Miranda warnings to every person that they question, even if the person being questioned is
a suspect. State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997). Instead,
Miranda warnings are only required for custodial interrogations. Id. “Custodial
interrogation” means questioning initiated by the police after the person has been taken into
custody or otherwise deprived of his freedom in any significant way. State v. Wilson, 2d
Dist. Montgomery No. 22665, 2009-Ohio-1279, ¶ 18, citing State v. Steers, 2d Dist. Greene
No. 89-CA-38, 1991 WL 82974 (May 14, 1991). In order for a defendant’s statements
made during a custodial interrogation to be admissible, the State must establish that the
accused knowingly, voluntarily, and intelligently waived his or her rights. Miranda, supra;State v. Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976), overruled on other
grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
{¶ 17} Neither the subjective intent of the officer nor the subjective belief of the
defendant is relevant in determining whether the defendant was in custody. State v. Cundiff,
2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 57. “Instead, we have considered
factors such as the location of the interview and the defendant’s reason for being there,
whether the defendant was a suspect, whether the defendant was handcuffed or told he was
under arrest or whether his freedom to leave was restricted in any other way, whether there
were threats or intimidation, whether the police verbally dominated the interrogation or
tricked or coerced the confession, and the presence of neutral parties.” Id., quoting State v.
Hatten, 186 Ohio App.3d 286, 2010 -Ohio- 499, 927 N.E.2d 632, ¶ 50 (2d Dist.).
{¶ 18} Even when an individual is not in custody and Miranda warnings are not
9
required, a defendant’s statement may be involuntary and subject to exclusion. State v.
Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). “In
deciding whether a defendant’s confession is involuntarily induced, the court should
consider the totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation; the existence
of physical deprivation or mistreatment; and the existence of threat or inducement.”
Edwards, 49 Ohio St.3d at paragraph two of the syllabus. See also State v. Brewer, 48 Ohio
St.3d 50, 58, 549 N.E.2d 491 (1990); State v. Marks, 2d Dist. Montgomery No. 19629,
2003-Ohio-4205. A defendant’s statement to police is voluntary absent evidence that his
will was overborne and his capacity for self-determination was critically impaired due to
coercive police conduct. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d
954 (1987); State v. Otte, 74 Ohio St.3d 555, 562, 660 N.E.2d 711 (1996).
{¶ 19} In asserting that the interview at her apartment was a custodial
interrogation, Zan emphasizes that she repeatedly asked permission to move around her
apartment during the interview, and she focuses on the following exchange that occurred
shortly after the detectives entered her apartment:
Sgt. Muncy: Okay, Pandora. We want – we want to give you one
more opportunity to talk to us. And I think you know what’s going on and
what’s about to happen.
Zan: Can I close the door?
Det. Sgt. Thompson: Absolutely, Pandora.
10
Sgt. Muncy: Sure.
Det. Sgt. Thompson: You’re not under arrest or anything right now,
so you can do whatever you want, okay?
Sgt. Muncy: I think you know what’s going on and what’s about to
happen. And we just –. Listen, listen, listen to me. Before you say
anything, I want you to know that I know Chuck’s been, Chuck was mean to
you guys. * * * He was a jerk, okay? But we’ve been talking to Cody.
And I think you know that, and you know what’s about to happen. And –.
Zan: He’s lying.
Sgt. Muncy: But. Pandora.
Zan: He is lying.
Sgt. Muncy: I know –
Zan: He told me Sunday when I went and visited him about the deal.
And that he was gonna burn me. That’s what he told me.
Sgt. Muncy: All the other facts. Listen, all the other facts – and we’ll
tell you about some things we know. We know a lot more than just what
Cody’s telling us. We’ve got a lot more facts to back this up. And that’s
why we want to give you the opportunity to at least give us a reason. I don’t
want people to think you did this just because you’re cold-hearted, that you
set this up because you’re cold-hearted. There’s a reason you did. * * *
{¶ 20} Upon review of the entire record, we agree with the trial court that Zan was
not in custody when the officers interviewed her at her residence. The record reflects that,
11
although the detectives’ visit was not scheduled, Zan invited them into her apartment and
she agreed to talk to the detectives. The officers were in plain clothes, they spoke with Zan
in the living room of her apartment, and they made clear at the beginning of the interview
that Zan was not under arrest and was free to move around. At all times, the detectives
spoke courteously and in a non-threatening manner with Zan; the officers did not threaten
Zan and there is no evidence that they engaged in any coercive behavior.
{¶ 21} It is clear that Cody Henderson’s decision to cooperate with the State played
a significant role in the detectives’ decision to talk with Zan and in Zan’s decision to talk
with the detectives. Sgt. Muncy testified at the suppression hearing that Zan told her
probation officer that she wanted to talk with the prosecutor’s office, because she had come
to realize that Henderson was talking to the prosecutors about making a deal to turn in Zan
for her involvement in Charles Zan’s homicide. Sgt. Muncy testified, “And we just thought
that would be a good time to go out and talk to her.” The officers’ references to
Henderson’s cooperation and efforts to make a deal with the prosecutors – “I think you know
what’s going on and what’s about to happen” – may have led Zan to decide to talk with the
officers, but it did not turn the encounter into a custodial interrogation. Although the
officers spoke with Zan at her apartment for over two hours, we find nothing in the audio
recording or in Sgt. Muncy’s testimony at the suppression hearing to support Zan’s
contention that she was in custody and entitled to Miranda warnings prior to the detectives’
decision, at the conclusion of the interview, to contact the prosecutor’s office and then place
her under arrest.
{¶ 22} We also find no merit to Zan’s claim that her statements during the
12
subsequent formal interview at the police station were the result of an improper “question
first, Mirandize later” police tactic. Zan claims that the officers used an interrogation
technique that was recognized as unlawful in Seibert, 542 U.S. 600, 124 S.Ct. 2401, 159
L.Ed.2d 643.
{¶ 23} Seibert concerned the situation where the interrogating police officer
obtained a confession in violation of an accused’s Miranda rights. After a short break, the
officer provided Miranda warnings and then led the suspect to repeat her prior incriminating
statements. A plurality of the United States Supreme Court held that, “[b]ecause this
midstream recitation of warnings after interrogation and unwarned confession could not
effectively comply with Miranda’s constitutional requirement, * * * a statement repeated
after a warning in such circumstances is inadmissible.” Seibert at 604. The Supreme
Court held that both the pre-Miranda and post-Miranda statements were inadmissible.
{¶ 24} Seibert is often contrasted with Oregon v. Elstad, 470 U.S. 298, 105 S.Ct.
1285, 84 L.Ed.2d 222 (1985), an earlier case in which the Supreme Court held admissible a
post-Miranda confession that followed a pre-warning admission solicited by an officer while
the suspect was in custody. “In Elstad, police went to the home of an eighteen-year old
defendant with a warrant for his arrest. While one officer went to the kitchen to explain to
the suspect’s mother that her son was being arrested in connection with a burglary that
occurred at the home of a neighbor, another officer stayed with Elstad in the living room and
had a brief discussion with him. The officer explained the neighbor’s house had been
robbed and that he thought Elstad was involved. Elstad stated to the officer ‘Yes, I was
there.’ Police took Elstad to the police station, and about one hour later, interviewed him in
13
the office of one of the officers. The police administered Miranda to Elstad for the first
time without mentioning his previous admission. Elstad subsequently waived his rights and
made a full, detailed confession regarding his involvement in the burglary.” State v. Cook,
2d Dist. Montgomery No. 24524, 2012-Ohio-111, ¶ 21-22 (summarizing Elstad).
{¶ 25} The United States Supreme Court allowed Elstad’s confession given after
Miranda warnings to be admitted at trial. The Court noted that “a finding of voluntariness
for the purposes of the Fifth Amendment is a threshold requirement in determining whether
the confession may be admitted in evidence.” The Elstad Court emphasized that “there was
no warrant for presuming coercive effect where the suspect’s initial inculpatory statement,
though technically in violation of Miranda, was voluntary.” Id. at 318. Instead, “the
relevant inquiry is whether, in fact, the second statement was also voluntarily made.” Id.
This is determined by examining the surrounding circumstances and the entire course of
police conduct. Id. Accordingly, the Elstad Court held that “a suspect who has once
responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda warnings.” Id.; see also
Cook at ¶ 23.
{¶ 26} The Seibert Court contrasted the facts in Seibert from those in Elstad, noting
“a series of relevant facts that bear on whether Miranda warnings delivered midstream could
be effective enough to accomplish their object:” (1) the completeness and detail of the
questions and answers in the first round of interrogation, (2) the overlapping content of the
two statements, (3) the timing and setting of the first and the second interrogations, (4) the
continuity of police personnel, and (5) the degree to which the interrogator’s questions
14
treated the second round as continuous with the first. Seibert at 615. “Elstad and Seibert
stand on opposite sides of the line defining where pre-warning statements irretrievably affect
post-warning statements. Still, that line cannot be said to be bright or sharply defined.”
State v. Farris, 109 Ohio St.3d at 523, 2006-Ohio-3255, 849 N.E.2d 985.
{¶ 27} Here, Zan focuses on the fact that the officers spoke with her in her
apartment for more than two hours and that she made statements revealing her complicity in
the plan to kill her husband and her involvement in covering up the crime. Zan was
subsequently transported to the police station, where she was questioned again by the same
two detectives. She gave incriminating statements consistent with those she made at her
apartment.
{¶ 28} We nevertheless find Seibert to be distinguishable, because Zan was not in
custody when she spoke with the detectives at her apartment, at least up to the point where
the officers informed her (at the end of their conversation) that they needed to contact the
prosecutor. As stated above, the detectives came to Zan’s residence based on reports that
Zan wanted to speak to the prosecutor, as she had heard that Henderson was now speaking to
the State about Zan’s involvement in the crime. Zan welcomed the detectives into her
apartment, and the detectives expressly told Zan that she was not under arrest. The entire
conversation was respectful and non-coercive, and there is no indication that any of Zan’s
statements were involuntarily given. Zan did not make a custodial statement to the
detectives and then, after Miranda warnings, give another statement repeating her prior
confession. Her statements at the police station, while repetitive of her statements in the
apartment, were her only custodial statements on April 27, 2010.
15
{¶ 29} The first assignment of error is overruled.
II.
{¶ 30} Zan’s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT ALLOWED HEARSAY
STATEMENTS INTO EVIDENCE.
{¶ 31} In her second assignment of error, Zan claims that the trial court erred in
allowing into evidence statements made by her co-conspirator, Cody Henderson, to
Brittannie Michelle Taylor and Nicholas Howard. Taylor is Henderson’s former fiancé and
the mother of his child; Howard is Henderson’s best friend. Zan objected to the
admissibility of Henderson’s statements to Taylor and Howard, both before trial and at trial.
{¶ 32} Taylor testified that, on Friday, October 16, 2009, Zan picked up Henderson
and Taylor and drove them to a car rental facility, where Zan rented a red car for Henderson
to use. After Henderson and Taylor left in the rental car, Henderson told Taylor that he and
Zan had a plan whereby he would go to his mother’s house and kill his stepfather.
Henderson stated that Zan would give him $25,000 from Charles Zan’s life insurance policy
in return. Henderson and Taylor discussed using that money to buy a house. Taylor
testified that she did not report the conversation to anyone, because she did not believe that
Henderson had meant it.
{¶ 33} Taylor further testified that she and Henderson spent that evening at a
haunted house with Nick Howard and a girl she didn’t know. In the early morning hours of
October 17, Henderson drove to an apartment complex and parked. He left the car wearing
plastic gloves. When Henderson returned, he had blood on his face and hands, a cut on his
16
face, and a bag with two laptop computers in it. Henderson told the group that he had killed
his stepfather. Henderson had Howard drive the car to Henderson’s father’s home.
Henderson took the bag into his father’s house. In the days after the murder, Taylor saw
Henderson and Howard burn Henderson’s bloody clothes and attempt to sell one of the
laptop computers.
{¶ 34} Howard testified that on October 16, 2009, Henderson picked him up in a
red Chevy HHR, and the two went to a pool hall to play pool. Henderson told Howard that
he had plans to rob someone of two laptops. Later that evening, Henderson and Howard
picked up Taylor from her home and went to a haunted house. While there, Howard met a
female friend from high school named Alyssa; when Alyssa was finished working at the
haunted house, she left with Howard, Henderson and Taylor. The group played pool at a
different establishment and then spent some time at Taylor’s home.
{¶ 35} Early in the morning of October 17, the group left Taylor’s house.
Henderson stated in the car that he was “going to Dayton to hit the lick on the laptops,”
meaning that he was going to rob someone. Henderson drove to the Zans’ apartment
complex off of Springboro Pike and got out of the car. The other individuals waited in the
car. After about 45 minutes, Henderson came running back with a bag in his hand and told
Howard, “Shit went bad. Shit went bad. I need you to drive.” Once back in the car,
Henderson took off several items of clothing and put them in another bag. Henderson told
Howard how to get to Henderson’s father’s house.
{¶ 36} As Howard drove, he asked Henderson what had happened. Howard
testified that Henderson responded:
17
He told me that he originally had walked up to the apartment, started to cut
the screen and that a dog * * * started barking * * * and [that] had arose
Pandora and she had come to the door and Cody’s words exactly,
mysteriously walked the dog. She walked out and he walked in. * * * He
stood at the edge of the bed, looked at Chuck and just thought about all the
stuff that had happened over the years, between the abuse with his mother, his
self, his sister and at that point he snapped, jumped on top of the man and slit
his throat. Held his head to the pillow and slit his throat. * * * [Pandora] just
went to walk the dog. * * * Basically [there was] a fight with Chuck at that
point and that Chuck had somehow managed to get the knife away from him
and was going for his gun. Told me that he had yelled at his mother to get
him another knife and she did and once that, he basically just started stabbing
until he [Chuck] didn’t struggle anymore.
{¶ 37} Howard further testified that, upon reaching Henderson’s father’s house,
Henderson took the bags with his clothes and the laptops from the car and took them to a
barn. Henderson then drove Howard home.
{¶ 38} Henderson picked up Howard between 1:00 p.m. and 2:00 p.m. the same
day. Zan was in the passenger seat of the car. Howard overheard Henderson tell Zan, “I
can’t believe you got me the other knife,” and Zan reply, “I can’t believe you actually did it.”
Zan asked Howard to sell the laptops and give the money to Henderson; Howard responded
that he would. Zan also asked Howard to erase the hard drives and to “keep quiet” about
what had happened.
18
{¶ 39} Howard later sold one of the laptops to a friend. Afterward, he and
Henderson took a bag of items, including the other laptop, a pistol and a wallet, to another
house owned by Henderson’s father. The next day, Henderson, Howard, and Taylor took
Henderson’s bloody clothes to a “fishing hole” in Middletown, Ohio, and burned them.
Howard further testified that Henderson told him that he (Henderson) had committed the
crimes because Zan had offered to pay him $25,000 from Charles Zan’s life insurance.
{¶ 40} On appeal, Zan claims that the statements made by Henderson to Taylor
and Howard were inadmissible hearsay, because they did not fall within Evid.R.
801(D)(2)(e), which excludes certain statements of a co-conspirator from the definition of
hearsay. “Hearsay” is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). In general, hearsay is not admissible. Evid.R. 802.
{¶ 41} “Under Evid.R. 801(D)(2)(e), hearsay does not include a statement offered
against a party that is made ‘by a co-conspirator of a party during the course and in
furtherance of the conspiracy upon independent proof of the conspiracy.’ ‘The statement of
a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of
the statement has made a prima facie showing of the existence of the conspiracy by
independent proof.’ Evid.R. 802(D)(2)(e) does not require that explicit findings of the
conspiracy be made on the record.” (Citations omitted.) State v. Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 116.
{¶ 42} “A conspiracy does not necessarily end with the commission of the crime.
A statement made by a co-conspirator after the crime may be admissible under Evid.R.
19
801(D)(2)(e) if it was made in an effort to conceal the crime.” (Citations omitted.) State v.
Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 109; see also State v. Burns, 5th
Dist. Richmond No. 10CA130, 2011-Ohio-5926, ¶ 92. As we stated in State v. Boone, 2d
Dist. Montgomery No. 7516, 1983 WL 4843 (Mar. 4, 1983):
The acts and declarations of a conspirator are admissible against a
coconspirator when they are made during the pendency of the wrongful act,
and this includes not only the perpetration of the offense, but also its
subsequent concealment. The theory for the admission of such evidence is
that persons who conspire to commit a crime, and who do commit a crime,
are as much concerned, after the crime, with their freedom from
apprehension, as they were concerned, before the crime, with commission;
the conspiracy to commit the crime devolves after the commission thereof
into a conspiracy to avoid arrest and implication.
(Emphasis in original.) Id. at *4, quoting State v. De Righter, 145 Ohio St. 552, 558, 62
N.E.2d 332 (1945).
{¶ 43} Zan claims that Henderson’s statements were not made “during the course of
and in furtherance of the conspiracy” between them.
{¶ 44} In general, a co-conspirator’s statements to a third party which simply
describe the events that occurred are not made in furtherance of the conspiracy. See Braun at
¶ 113 (statements of co-conspirator who bragged about the murder were not made in
furtherance of the conspiracy); State v. Smith, 87 Ohio St.3d 421, 721 N.E.2d 93 (2000).
See also State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995), paragraph four of the
20
syllabus (“A confession to police by one co-conspirator implicating a second co-conspirator
is not made ‘during the course and in furtherance of the conspiracy’ within the scope of
Evid.R. 801(D)(2)(e), as such a statement is made at a point in time when the confessor is no
longer attempting to conceal the crime and has abandoned the conspiracy.”). Such
statements to third parties can be contrasted with those made by a conspirator who was
present when the crime was committed to other co-conspirators who were not. E.g., Boone,
supra. We noted in Boone that the statements of a conspirator who committed the offenses
to co-conspirators who had not personally observed the commission of the crimes were in
furtherance of the conspiracy, because the statements made the other conspirators aware of
the circumstances involved in the actual execution of the crimes, thereby informing those
conspirators of the extent to which the actions of a conspirator had exceeded the original
plan.
{¶ 45} In this case, Howard and Taylor were not conspirators in the plan to kill
Charles Zan. Howard testified that he asked to be driven home instead of going to the
location where Henderson planned to rob someone, but Henderson refused. Henderson told
Howard that he (Howard) would be “part of his [Henderson’s] alibi.” After the murder,
Henderson described the murder to Howard while Howard drove Henderson (with Taylor
and Alyssa in the vehicle) to Henderson’s father’s home, where Henderson hid his bloody
clothes and the laptops he had stolen.
{¶ 46} We find it to be a close question whether Henderson’s statements to Taylor
and Howard that he killed Charles Zan and Henderson’s detailed description of his actions in
committing the murder were made in furtherance of the conspiracy. While Henderson’s
21
statements could be seen as merely describing his actions to his close associates, it could
also be interpreted as informing these friends of his actions so they could help him avoid
detection and apprehension by the police.
{¶ 47} Regardless, the admission of Henderson’s confessions to killing Charles
Zan and his description of his own actions while in the Zans’ apartment were harmless, as
there was never any dispute at Zan’s trial that Henderson fatally stabbed his stepfather and
stole the laptops. Defense counsel specifically stated during his opening statement that
there was no dispute that “Cody did it. * * * Cody killed Charles.”
{¶ 48} As part of Henderson’s description of the murder to Howard, Henderson told
Howard that he asked his mother to get him another knife during the stabbing and Zan
complied. We do not find that this statement was made in furtherance of the conspiracy.
{¶ 49} However, Howard also heard Henderson and Zan talking with each other
shortly after the murder, during which Henderson told Zan, “I can’t believe you got me the
other knife,” and Zan replied, “I can’t believe you actually did it.” As part of this
conversation, Zan asked Howard to “keep quiet” about what had happened and to sell the
laptops and give the money to Henderson. This conversation between Zan, Howard, and
Henderson occurred as part of plan to conceal the crime and sell the proceeds of the robbery.
Thus, these statements were admissible under Evid.R. 801(D)(2)(e). The admission of
Henderson’s initial statement to Howard that Zan provided him a knife during the murder
was harmless.
{¶ 50} Henderson’s description of the murder also indicated that Zan went outside
to walk her dog. We fail to see how this statement to Howard was made in furtherance of
22
the conspiracy. However, Zan acknowledged in her April 27, 2010 written statement that
she went outside with her dog after Henderson arrived at her apartment, and Zan’s neighbor,
Ralph Van Gundy, testified at trial that he saw Zan standing outside with her dog at 6:00
a.m., within minutes of his hearing Charles Zan’s cries for help. Carla Hairston testified
that she and Zan were in the Montgomery County Jail together on July 3, 2010. While
describing the murder to Hairston, Zan said that she stood outside with the dog, that a
neighbor looked out the window, and she waved him off. Zan herself testified at trial that,
when Henderson came into the apartment, she took the dog outside. Henderson’s statement
to Howard that Zan took her dog outside was harmless.
{¶ 51} Finally, Howard and Taylor both testified that Henderson told them Zan
promised him (Henderson) $25,000 from Charles Zan’s life insurance policy in return for
Henderson’s killing Charles Zan. Even if these statements were hearsay, they were also
harmless. Zan admitted in her statements to the police that she had promised to give
Henderson money, to buy him a car, and to take care of his children after Charles Zan was
dead. Sgt. Muncy testified that Zan had told him that she and Henderson planned to get
Charles Zan’s insurance money. Hairston further testified that Zan told her that she (Zan)
and her son had killed her “ex-husband” for insurance money totaling $400,000.
{¶ 52} Zan’s second assignment of error is overruled.
III.
{¶ 53} Zan’s third assignment of error states:
THE TRIAL COURT ABUSED HER DISCRETION IN SENTENCING
DEFENDANT.
23
{¶ 54} In her third assignment of error, Zan claims that the trial court’s aggregate
sentence of life in prison without the possibility of parole, plus 25 years, was an abuse of
discretion. She emphasizes that, while she did not stop Henderson from killing her
husband, she was not the person who actually killed Charles Zan.
{¶ 55} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.{¶ 56} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. See State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus .
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, ¶ 37.1 Zan has not argued that her sentence was contrary to law.
{¶ 57} Upon review of the record, we disagree with Zan’s contention that her
sentence was an abuse of discretion. There was substantial evidence at trial that Zan
1
Zan was sentenced on April 21, 2011, prior to the effective date of Am.Sub.H.B. 86, which amended Ohio’s
sentencing scheme. Accordingly, the trial court was not required to make statutory findings prior to imposing consecutive
sentences.
24
planned the murder of Charles Zan with Henderson. Several witnesses testified that Zan
and Henderson discussed killing Charles Zan for insurance money. Zan offered to give
$25,000 to Henderson and to use the money to buy things for Henderson and his children.
Zan and Henderson discussed several ways that Charles could be killed, and ultimately
decided that Henderson would slit his throat. Zan rented a car for Henderson, in part so that
he had a vehicle to get to and away from the Zans’ apartment. Henderson showed Zan the
knife he planned to use to kill Charles. Prior to the murder, Zan moved her husband’s
firearm from the bedside table so that he would not be able to shoot Henderson when
Henderson came to murder him. Zan let Henderson into the apartment on the morning of
October 17, 2009; Henderson then stabbed Charles Zan more than 40 times. Charles Zan
was still alive when Zan returned to the apartment. Instead of seeking aid for him, she
assisted Henderson when he asked for her help. Zan wiped up blood evidence and held a
bag while Henderson put laptops and Charles’s gun into it. After the murder, Zan called the
police and lied about what had happened. She also asked Henderson’s friend, Howard, to
sell the laptops.
{¶ 58} Although it was Henderson, not Zan, who fatally stabbed Charles Zan, Zan
was equally culpable in the murder and robbery, and she obstructed justice and tampered
with evidence in her efforts to avoid her and Henderson’s apprehension. As stated by the
trial court, Zan “was the primary facilitator and the primary reason for the murder of Charles
Zan.” Zan had prior felony convictions, including offenses involving violence and firearms.
The court found that Zan had not shown genuine remorse. We find no abuse of discretion
in the trial court’s decision to impose maximum consecutive sentences, totaling life in prison
25
without the possibility of parole, plus 25 years.
{¶ 59} Zan’s third assignment of error is overruled.
IV.
{¶ 60} The trial court’s judgment will be affirmed.
..........
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Robert Alan Brenner
Hon. Mary L. Wiseman