State v. Gilbert , 2012 Ohio 1165 ( 2012 )

[Cite as State v. Gilbert, 2012-Ohio-1165.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 08 MA 206
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
HATTIE GILBERT )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 08 CR 382 A
JUDGMENT: Affirmed in Part. Reversed in Part.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Kristopher A. Haines
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 20, 2012
[Cite as State v. Gilbert, 2012-Ohio-1165.]
WAITE, P.J.
{¶1} Appellant Hattie Gilbert appeals her convictions on complicity to
attempted murder, complicity to felonious assault, complicity to aggravated robbery,
and complicity to kidnapping, along with four corresponding gun specifications. She
received a combined sentence of fifty years in prison. Appellant raises eight
assignments of error in this appeal. The state has conceded that the trial court
should have merged the gun specification sentences, and we correct this error
herein. Appellant also argues that there were allied offenses that should have
merged at sentencing. The analysis for appellate review of allied offenses was
recently changed in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061. Under the Johnson analysis, and based on the specific facts of this
case, aggravated robbery and kidnapping are not allied offenses and the sentences
should not have merged. Similarly, under the facts of this case, attempted murder
and felonious assault are not allied offenses and the trial court properly imposed
sentences for both crimes. Appellant raises an error regarding jury instructions, but
Appellant did not object to the jury instructions and the caselaw cited in support is not
relevant to the issue raised. Appellant argues that there was insufficient evidence of
complicity to robbery, but the record does not support the argument. Her Fourth
Amendment arguments likewise are not persuasive. She raises a Sixth Amendment
Confrontation Clause issue regarding a hearsay statement attributed to her
codefendant Taran Helms, but any error is harmless in light of the otherwise
overwhelming evidence of her guilt. She further argues that there should have been
a change of venue due to pretrial publicity, but the record does not show jury bias as
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a result of the alleged publicity or that the publicity was excessive. The record also
supports the imposition of maximum consecutive sentences, and does not establish
ineffective assistance of counsel.
{¶2} All of Appellant’s arguments, except those related to her first
assignment of error, are overruled. The sentences for the firearm specifications are
hereby merged. Appellant's convictions and the remaining aspects of her sentence
are hereby affirmed.
Facts and Procedural History
{¶3} On April 3, 2008, Taran Helms and Hattie Gilbert were indicted by a
Mahoning County Grand Jury on counts of attempted murder, felonious assault,
aggravated robbery, and kidnapping, as well as four accompanying firearm
specifications. The charges arose from a series of events that occurred on March 24,
2008, wherein the victim, Joseph Kaluza, was robbed and shot while on the way to
make a bank deposit for his employer, a Kentucky Fried Chicken restaurant. As he
headed for the bank, a blue-gray Saturn vehicle pulled up and suddenly stopped in
front of him, causing an accident with Kaluza's vehicle. Kaluza called his district
manager to report the accident, then called the police. Immediately following the
accident, a man came up from behind Kaluza's vehicle and shot Kaluza in the neck.
The man took the deposit money, pushed Kaluza's car to a more secluded spot, and
threatened to shoot Kaluza again. The man then fled on foot. Police investigations
eventually led to the arrests of Appellant and Helms.
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{¶4} Appellant filed a motion to suppress on August 8, 2008. She sought to
suppress statements she made to the police at her home prior to her arrest. The
motion was denied on August 28, 2008.
{¶5} Co-defendant Helms filed a motion for change of venue on September
3, 2008, arguing that extensive pretrial publicity about the case necessitated a
change of venue. Helms attached approximately 35 articles from newspaper and
internet sources, ranging from lengthy detailed articles to single-line references,
regarding the robbery, the investigation and legal proceedings, and the medical
recovery of the victim. Helms later supplemented his motion for change of venue,
attaching a DVD of television news coverage of the incident. Appellant joined Helm's
motion on September 15, 2008. The motion was denied on September 15, 2008.
{¶6} The joint trial for Helms and Appellant commenced on September 15,
2008. Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken
restaurant. One of his duties was to take the restaurant's deposits to the bank.
While he was driving to the bank on March 24, 2008, a car decelerated suddenly in
front of Kaluza, causing him to hit the rear of her vehicle. Appellant was the driver of
that vehicle. Kaluza immediately called the police and the area manager for his
restaurant. Appellant got out of her car and asked to use Kaluza's cellular phone.
She used the phone and returned it to Kaluza. She then returned to her car. Shortly
thereafter, codefendant Taran Helms appeared at the driver's side of Kaluza's car
and shot Kaluza in the neck, instantly paralyzing him. Helms walked to Gilbert's car,
motioned for her to leave, then returned to Kaluza's car and pushed it off of the main
road and onto a side street in front of an abandoned house. Helms then looked in
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the car for the deposit bag, and once he had found the bag containing $300.00, he
said to Kaluza: “Where’s the rest of the money, or I’m gonna shoot you in the head.”
(Tr., p. 1569.) Kaluza testified that, at that point, a man in a truck stopped and asked
if Kaluza and Helms needed help, and Helms declined the offer of assistance. Helms
then hurriedly grabbed another bag in the car (which turned out to be trash) and ran
off.
{¶7} Kaluza further testified that Kimberly Helms, the defendant's mother,
used to work at Kaluza's restaurant and knew the deposit procedure, but she was
fired the prior spring for theft.
{¶8} Kandace Johnson testified that she lived in a house a short distance
away from where the incident occurred. Johnson stated that she saw the car
accident occur, and saw Appellant exit her car, speak to Kaluza, and return to her
car. Johnson testified that Appellant was wearing a pink coat. Johnson saw Helms
walk from Ravenwood Street onto South Avenue, the main street where the accident
occurred. Helms walked up to Kaluza's car, fired a shot into the car without breaking
his stride, and continued to Gilbert's car. Helms and Appellant spoke together for a
minute. Johnson then saw Helms point for Appellant to leave, which she did.
Johnson saw Helms immediately return to Kaluza's car and start “fumbling around,”
by reaching into the car through the driver's side window. (Tr., p. 1611.) Johnson
saw Helms push the car, turn the car off, fumble around a bit more, then pull the car
off of South Avenue and onto a side street, Hilton. Johnson estimated that 90
seconds elapsed between the gunshot and moving the car. Johnson saw Helms
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continue to look around in Kaluza's car on the front passenger's side. Johnson saw
Helms run through a yard as tow-trucks arrived at the scene.
{¶9} Jeremy Vignon, a passerby, testified that he saw Kaluza in his car
shortly after the accident had occurred. As he drove by, Vignon noticed that Kaluza
was slumped over and bleeding. Vignon decided to turn around and go back to the
scene as Helms was finishing pushing the car onto Hilton. Vignon asked Helms if he
needed any help, and Helms responded that he only had a flat tire. Vignon drove off
again, but noticed that the car did not have a flat tire, and called the police. Vignon
circled around again, and when he returned to the scene, Helms was running through
the yard and tow trucks were arriving.
{¶10} David White, a tow truck driver for Ludt's Towing, arrived on the scene
as Helms was rummaging through Kaluza's vehicle. He and Mr. Vignon both
observed Helms get out of Kaluza's vehicle and run through a backyard heading
north, carrying an object in his hand.
{¶11} Law enforcement officers testified regarding their investigation of the
incident. Police arrived on the scene shortly after the accident and realized that a
potential homicide had taken place. Officer Justin Coulter and a K-9 unit were called
to the scene to search the area. Coulter started the search near the spot where
Kaluza's vehicle had come to rest. The dog immediately began to track a scent. His
tracking first led to a firearm. Next, the dog led Officer Coulter around a fence to a
black and orange jacket laying on the ground. The dog followed the scent to a
footprint behind a garage, but lost the track soon after that.
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{¶12} A Western Reserve Transit Authority (“WRTA”) bus video captured the
accident, showing a 2001/2002 blue-gray Saturn L series vehicle. Police generated
a list of owners of similar vehicles, which later led to a police interview at Appellant’s
residence because her car matched the car in the video. Police discovered a
damaged Saturn vehicle at Appellant's home similar to the car in the video.
Detective Lieutenant Milstead testified that he asked Appellant if she knew why he
was there, and she answered “Yeah. It's probably that crash I got into on South
Avenue.” (Tr., p. 1741.) Appellant admitted she wore a pink coat at the time and
retrieved it for the detective. She was placed under arrest and taken to the
Youngstown Police Department. She was read her Miranda rights and waived them
in writing. She soon confessed to planning the robbery of Kaluza. She had watched
Kaluza for several weeks, even to the point of following him to the bank to learn the
route he would take. She admitted to purchasing the bullets for a firearm two weeks
before the robbery.
{¶13} Detective Sergeant John Kelty testified that he interviewed Appellant
and later interviewed Helms, after Helms's wallet was found in her car and after
Helms's mother's prior employment at the Kentucky Fried Chicken had been
discovered. Appellant admitted she staged the accident so that the robbery could
take place. She watched from her rearview mirror as Kaluza was shot. She heard
the gun go off, and saw Kaluza's head slump forward. After speaking with Helms,
she drove away.
{¶14} Various items of physical and scientific evidence were admitted during
trial, including a video of the accident captured by a WRTA bus; a spent shell casing
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from the crime scene; a gun, coat, cap, and mask from the crime scene; the Bureau
of Crime Investigation's lab results, which found Helms's DNA on the gun, coat and
mask; and items retrieved from Appellant's car, including a box of bullets and Helms's
wallet.
{¶15} Neither Helms nor Gilbert presented a defense. The jury was charged
on September 18, 2008, and on the same day it returned a verdict of guilty against
both defendants. The jury convicted Appellant Gilbert on four counts of complicity
corresponding to the four counts in the indictment: complicity to attempted murder,
R.C. 2923.02(A) and 2903.02, a first degree felony; complicity to felonious assault,
R.C. 2903.11(A)(2), a second degree felony; complicity to aggravated robbery, R.C.
2911.01(A)(1), a first degree felony; and complicity to kidnapping, R.C.
2905.01(A)(2), a first degree felony. The first degree felonies carried possible ten-
year prison terms, and the second degree felony could be punished by an eight-year
prison term. The jury also convicted Appellant on the four corresponding firearm
specifications, each carrying a possible three-year prison term.
{¶16} A sentencing hearing was held on September 23, 2008, and a
sentencing judgment entry was filed the same day. The court imposed the maximum
prison terms on each count. Appellant received ten years in prison for count one,
eight years for count two, ten years for count three and ten years for count four, along
with three years in prison for each of the four firearm specifications. The sentences
were ordered to be served consecutively, for a total of fifty years in prison. The court
filed a corrected nunc pro tunc sentencing entry on September 26, 2008. This
appeal followed.
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ASSIGNMENT OF ERROR NO. 1
{¶17} “The trial court committed reversible error when it sentenced Ms. Gilbert
to multiple sentences for allied offenses of similar import committed with a single
animus, and failed to merge the firearm specifications regarding all counts in the
indictment, in violation of R.C. 2941,25, and in violation of Ms. Gilbert’s rights under
the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
(Sept. 26, 2008, Sentencing Entry; Sept. 23, 2008, Sentencing Memorandum).”
{¶18} In this assignment of error Appellant challenges three aspects of
sentencing. First, Appellant contends that her sentences for complicity to aggravated
robbery and kidnapping should have merged because they are allied offenses under
the new standard established in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061. Second, Appellant contends that her sentences for
complicity to attempted murder and complicity to felonious assault should also have
merged as allied offenses under Johnson. Third, Appellant argues that the
sentences for the four firearm specifications should have merged. The state has
already conceded that the firearm specifications should have merged. The only
remaining issue is whether Appellant was convicted and sentenced for allied
offenses.
{¶19} We first examine whether complicity to attempted murder and
complicity to felonious assault are allied offenses. The question as to whether crimes
are allied offenses arises from the Double Jeopardy Clause of the Fifth Amendment,
which protects individuals from multiple punishments for the same offense. Brown v.
Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio
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Legislature has codified this protection in R.C. 2941.25. Under the statute, a
defendant may not be punished for multiple offenses if the defendant's actions
constitute allied offenses of similar import. Id. at syllabus.
{¶20} In State v. Johnson, supra, the Ohio Supreme Court overruled State v.
Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), to the extent that Rance called for
a comparison of multiple offenses “solely in the abstract.” Johnson at ¶44. Rance
had attempted to create an objective standard for determining allied offenses based
on comparing the statutory elements of the crimes rather than looking at the conduct
of the accused. The Rance formula, though, sometimes led to absurd results and
became unworkable. Johnson returned a subjective element to the review of allied
offenses: “the statute instructs courts to examine a defendant's conduct—an
inherently subjective determination.” Johnson at ¶52. Pursuant to the plurality
opinion in Johnson:
{¶21} “If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same conduct,
i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).
{¶22} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶23} “Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each offense, then, according
to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶49-51. (Emphasis sic.)
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{¶24} It is clear that the conduct of the accused must now be considered
when determining whether multiple offenses were allied offenses. Id. at syllabus.
Thus, the test applied in Johnson is: 1) can the two offenses be committed by the
same conduct; and if so, 2) looking at the facts of the case, were the two offenses
committed by the same conduct as a single act with a single state of mind. Id. If the
answer to both questions is yes, then they are allied offenses of similar import and
must be merged. If the acts were committed separately or with a separate animus,
they are not allied offenses. Id. at ¶51.
{¶25} Johnson recognized that, due to the subjective nature of the analysis
based on the facts of each case, some crimes may be allied offenses in certain
cases, but not in another case under different facts. Id. at ¶52.
{¶26} The Johnson plurality holding has been followed in eleven of the twelve
appellate districts. State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067; State
v. Taylor, 3d Dist. No. 12-10-49, 2011-Ohio-5080; State v. Humphrey, 4th Dist. No.
10CA3150, 2011-Ohio-5238; State v. Hight, 5th Dist. No. 2011CA0056, 2011-Ohio-
5013; State v. Nickel, 6th Dist. No. OT-10-004, 2011-Ohio-1550; State v. Stoffer, 7th
Dist. No. 09-CO-1, 2011-Ohio-5133; State. Adkins, 8th Dist. No. 95279, 2011-Ohio-
5149; State v. McDaniel, 9th Dist. No. 25492, 2011-Ohio-5001; State v. Mason, 10th
Dist. Nos. 10AP-337, 10AP-342, 2011-Ohio-3301; State v. May, 11th Dist. No. 2010-
L-131, 2011-Ohio-5233; State v. Crosby, 12th Dist. Nos. CA2010–10–081, CA2011–
02–013, 2011-Ohio-4907. The First District seems to follow a different standard
based on the general notion that a trial court must simply look at the facts of the case
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to see if the state relied on the same conduct to prove two offenses. State v. Strong,
1st Dist. Nos. C-100484, C-100486, 2011-Ohio-4947.
{¶27} We now turn to the first set of alleged allied offenses: complicity to
attempted murder and complicity to felonious assault. To establish the elements of
attempted murder, the state must prove that the defendant engaged in conduct that,
if successful, would have resulted in purposely causing the death of another. R.C.
2903.02(A); R.C. 2923.02(A). To establish the elements of felonious assault, the
state must prove that the defendant knowingly caused or attempted to cause physical
harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). To establish
complicity by aiding and abetting under R.C. 2923.03(A), “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. Such intent may be inferred from the
circumstances surrounding the crime.” State v. Johnson, 93 Ohio St.3d 240, 754
N.E.2d 796 (2001), syllabus.
{¶28} The first question is whether attempted murder and felonious assault
can be committed with the same conduct. The answer is yes. The conduct of
pointing and shooting a gun at a person or persons can result in the death of one or
more individuals, and the same conduct can also fall short of causing death but can
cause physical harm. Since the answer to the first question is yes, the second
question is whether the two offenses were in fact committed with the same conduct,
i.e., was there was a single act committed with a single state of mind? Johnson,
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supra, at ¶49. The answer to this question depends in large measure on a review of
all of the facts of this case.
{¶29} The facts supporting attempted murder are as follows: Helms walked
up from behind Kaluza’s car with a loaded gun intending to rob the victim, pointed the
gun at the vicinity of Kaluza’s head from very close range, and fired the gun, hitting
the victim’s neck and paralyzing him. The facts supporting felonious assault are
more complicated. As the dissent pointed out in State v. Helms, 7th Dist. No. 08 MA
199, 2010-Ohio-4872 (“Helms I”), there are two sets of circumstances in the record in
which Helms used or threatened to use a gun against Kaluza. The facts surrounding
the attempted murder could be used to describe a felonious assault. Helms walked
up to Kaluza’s car with a deadly weapon and fired the weapon, causing serious
physical harm. If we rely on only these facts to support both charges, there is no
question the two offenses are allied. This record contains two scenarios involving a
gun threat, though. The record also reveals a second, separate, incident establishing
that after Helms shot Kaluza, he pushed Kaluza’s car to a more secluded location,
rummaged through the car looking for more money, then threatened to shoot Kaluza
in the head. There is evidence showing that Helms continued to possess the gun
that he used a few minutes earlier, and Helms’ intent to use the weapon again is
certainly established in this record because Kaluza had already been shot by Helms.
{¶30} Turning to the second set of facts as evidence of felonious assault, this
scenario also presents us with a separate crime having a separate animus that is
distinct from the other charges brought against Appellant. “There is no statutory or
constitutional prohibition against imposing separate punishments for allied offenses
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or lesser included offenses if they are committed independently or with a separate
animus.” State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, ¶19.
{¶31} Various cases have upheld the principle that threatening to use a
firearm, coupled with the act of pointing or waving a firearm at someone, satisfies the
elements of felonious assault. See, e.g., State v. Green, 58 Ohio St.3d 239, 569
N.E.2d 1038 (1991); State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (1990); State
v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 (1989); State v. Ellington, 2d Dist. No.
23828, 2010-Ohio-5280; State v. Jackson, 8th Dist. No. 93815, 2010-Ohio-4486.
“Pointing a firearm, coupled with a threat indicating an intention to use the weapon, is
sufficient to establish felonious assault. The defendant's intent to cause physical
harm may be inferred from his actions under the circumstances.” (Citations omitted.)
State v. Alexander, 11th Dist. Nos. C-100593, C-100594, 2011-Ohio-4911, ¶5. In all
of these cases, the determinative factor is whether the “defendant's actions were
strongly corroborative of his intent to cause physical harm * * * by means of his
deadly weapon.” Green, supra, at 242.
{¶32} In the instant case, we have even more conclusive facts to rely on than
those involved in Green and its progeny. Regarding the threat element, the record
shows that Helms specifically stated he was going to shoot Kaluza in the head. After
Helms made this threat, he was interrupted by a passerby, Jeremy Vignon, who
asked if everyone was okay or needed help. While Helms fled almost immediately
after speaking with Vignon, there is no doubt that Helms’ threat was serious because
he had already fired the gun at Kaluza, hitting him in the neck. Helms had not
hesitated to use the gun earlier. He walked up behind Kaluza’s car and fired at him
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without warning. Because Kaluza was unable to turn his head and actually see
Helms when he made the verbal threat, we do not have direct evidence that the gun
was pointed at Mr. Kaluza contemporaneously with the threat. But we have much
more reliable evidence of the defendant’s willingness and ability to shoot; Helms
actually shot the victim shortly before threatening to do it again. Mr. Vignon
interrupted the course of this crime, but the gun was retrieved near the (second)
crime scene with a live round in the chamber. (Tr., p. 2024.) The gun was
undeniably functional as it had already been used a few minutes earlier. The gun
was also test fired by the BCI during the investigation of the case and was found to
be operational. (Tr., p. 2058.) Compared to the facts in Green, the facts of the
instant case are much more corroborative of the defendant’s intent and ability to
cause physical harm to Kaluza by means of a deadly weapon.
{¶33} The main difference between the facts of Green and related cases
versus the instant case is that the prior cases rely on evidence that the gun was
physically pointed at the intended victim to establish intent, whereas here, we rely on
the actual use of the weapon to establish intent. In this case, Kaluza had already
been shot and paralyzed when Helms made his threat, so there is no testimony that
he saw Helms pointing the gun at him. The evidence of the gun being pointed at the
victim, though, is cited in the body of caselaw that follows Green as part of the
corroborative evidence to establish the defendant’s intent to use the weapon. It is
not that the weapon was pointed that is determinative in these types of cases, and in
fact, that fact alone is not sufficient of itself to establish felonious assault: “The act of
pointing a deadly weapon at another, without additional evidence regarding the
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actor's intention, is insufficient evidence to convict a defendant of the offense of
‘felonious assault’ as defined by R.C. 2903.11(A)(2).” State v. Brooks, 44 Ohio St.3d
185, 542 N.E.2d 636, (1989), syllabus. On the other hand, if pointing a weapon
combined with a general threat is sufficient to establish the necessary intent to
commit felonious assault, then it is even more persuasive to prove felonious assault
by showing that the defendant actually used the weapon to seriously injure the victim,
and then threatened to do it again a mere few minutes later.
{¶34} The dissent in State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-
1147, contends that the facts of this case amount only to aggravated menacing, but
this theory was rejected in Green: “Defendant suggests that the only conviction that
the evidence could support in this case is aggravated menacing, in violation of R.C.
2903.21(A), * * *. We disagree, because the defendant, in making his threat along
with his actions, took a substantial step in a course of conduct apparently planned to
culminate in the commission of a crime.” Id. at 242, fn.2. In Green, the threat and
the action taken by the defendant were that of pointing a loaded and functioning rifle
at a policeman’s head, coupled with these threatening words: “If you don't have a
warrant get the fuck out of my house.” Id. at 239. The threat and action in this case
consist of the actual use of the firearm resulting in a gunshot wound to the neck; a
brief period of time intervening; then a threat to shoot the victim in the head along
with substantial proof that the gun was loaded, operable, and was hastily discarded
near the crime scene when the shooter fled. Once again, the facts in this case
appear stronger than those in Green, and in Green the conviction for felonious
assault was upheld.
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{¶35} This dissent appears to concede that there would be sufficient evidence
of felonious assault if the state had provided any evidence of what Helms’ was doing
with the gun at the time he made the threat. Given that circumstantial evidence is as
valid as direct testimonial evidence in proving any element of a crime, the record
contains more than sufficient, competent and credible circumstantial evidence that
Helms had the ability and intent to carry out his threat to shoot Kaluza in the head.
State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).
{¶36} The Helms dissent also contends that there is a due process problem in
relying on the evidence of Helms’ threat to kill Kaluza as proof of felonious assault
because that set of facts does not correspond to the prosecutor’s theory of the case
set forth in the opening and closing arguments. The issue in a review of allied
offenses, though, does not involve due process, but whether double jeopardy
occurred in sentencing a person twice based on the same set of facts. Whether or
not the prosecutor’s theory of the case as articulated in its opening and closing
remarks corresponds to the actual evidence presented is not under review when
examining the record for allied offenses. Obviously, opening and closing statements
are not evidence. “It is well settled that statements made by counsel in opening
statements and closing arguments are not evidence.” State v. Frazier, 73 Ohio St.3d
323, 338, 652 N.E.2d 1000 (1995). In reviewing a sentence for allied offenses, we
normally look at the entire record and review the entire set of facts and
circumstances as presented to the trier of fact. We do not exclude particular properly
admitted facts from our consideration simply because we believe the jury was paying
more attention to the prosecutor’s opening and closing remarks rather than the actual
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presentation of the evidence. The jury is free to match the facts presented at trial to
the elements of the crime as stated in the indictment. The indictment here does not
specify any facts regarding felonious assault except that Kaluza was the victim and
that it occurred on March 24, 2008. The bill of particulars does not provide any
further explanation about the details of felonious assault. There was no objection
filed regarding the felonious assault charge in the indictment or the bill of particulars.
There was no objection made to Kaluza’s testimony regarding Helms’ threat to shoot
him in the head. There was no clarification requested in the jury instructions about
felonious assault. We find nothing in the record that would limit our normal procedure
of viewing the entire record as part of the consideration in determining whether there
were allied offenses. Based on the record, Appellant committed a felonious assault
that is not an offense allied to any other crime in this case. Thus, the trial court
properly imposed a separate sentence for that crime.
{¶37} Turning now to the counts regarding complicity to aggravated robbery
and kidnapping, a similar analysis must be conducted. Aggravated robbery pursuant
to R.C. 2911.01(A)(1) is defined as:
{¶38} “(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
{¶39} “(1) Have a deadly weapon on or about the offender's person or under
the offender's control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it[.]”
{¶40} Kidnapping is defined in R.C. 2905.01(A)(2) as:
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{¶41} “(A) No person, by force, threat, or deception, * * * shall remove
another from the place where the other person is found or restrain the liberty of the
other person, for any of the following purposes:
{¶42} “* * *
{¶43} “(2) To facilitate the commission of any felony or flight thereafter[.]”
{¶44} Once again, first we must question whether these two crimes can be
committed by the same conduct. The answer is yes. A robbery of a person, by its
very nature, involves, to some degree, holding that person by force to commit a
crime. Hence, it constitutes a type of kidnapping. It has been longstanding law in
Ohio, both before and after Rance, that the two crimes may be allied offenses. State
v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979).
{¶45} The second question is whether the offenses were committed with the
same conduct, i.e., was there was a single act committed with a single state of mind?
The answer here is no.
{¶46} The state established that the movement of Kaluza in his vehicle after
he was shot was prolonged, secretive and independent of the other offenses. The
kidnapping took place during the few minutes after Kaluza was shot. After the
shooting, when Kaluza was paralyzed, Helms went over to talk to Appellant for a
period of time. When he returned to Kaluza’s car, he briefly searched it, then pushed
the victim’s car onto a side street, where he searched for the deposit bag. One
witness testified that it took 90 seconds for Helms to push the car down the street.
Various witnesses established that Helms left Kaluza in the car, paralyzed, and
pushed the car with Kaluza in it to a more secluded area. Any restraint or asportation
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of a victim may constitute a separate offense of kidnapping if it was not necessary in
order to complete the robbery offense. State v. Gore, 131 Ohio App.3d 197, 127,
129-130, 722 N.E.2d 125 (1999). The robbery took place when Helms searched the
car for the deposit bag. The kidnapping took place when Helms left a helpless
Kaluza to talk to Appellant, then moved the car to a more secluded street. These are
two distinct factual events, and both of them can result in a criminal conviction and
sentence.
{¶47} In addition, there also appears to be a separate animus for both crimes,
and separate animus is another basis for finding that the crimes are not allied
offenses subject to merger. “Animus refers to the defendant's immediate criminal
motive, intent or state of mind.” Hooper, supra, ¶15, citing State v. Blankenship, 38
Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). When a kidnapping is committed
during another crime, there exists no separate animus “[w]here the restraint or
movement of the victim is merely incidental to a separate underlying crime.” Logan,
supra, at syllabus. However, “where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense,” there is a separate animus as to each offense. Id.
Separate animus also exists if the restraint or movement of the victim substantially
increases the risk of harm to the victim. Id. In this case, the movement of Kaluza
was prolonged, secretive, substantial, and increased the risk of harm to the victim.
Therefore, the record contains evidence of separate animus and the two crimes are
not allied offenses subject to merger.
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{¶48} Appellant’s first assignment of error has partial merit, in that the state
has conceded error with respect to the gun specifications. Those four specifications
are merged and only one three-year prison term will be imposed. The remaining
aspects of the assignment of error are overruled.
ASSIGNMENT OF ERROR NO. 2
{¶49} “The trial court committed plain error when it failed to provide the jury
with an augmented instruction regarding its duty to unanimously find Ms. Gilbert
guilty of the offenses alleged in the indictment based on a particular set of facts for
each alleged crime, in violation of Ms. Gilbert’s Fifth, Sixth, and Fourteenth
Amendment rights under the United States Constitution, and Sections 10 and 16,
Article I of the Ohio Constitution. (Tr. 2279-2320).”
{¶50} Appellant argues that it was plain error for the trial court to fail to
provide a special instruction to the jury that it must unanimously agree to one
particular set of facts that constituted each offense in the indictment. Appellant
contends that the state presented two different versions of what may constitute an
attempted murder. Appellant submits that the initial shot to Kaluza's neck could have
been an attempted murder, and that the act of moving Kaluza to a more secluded
location could also have constituted an attempted murder. Appellant believes the
trial judge should have given an instruction that the jurors were required to agree on
one set of facts that resulted in the conviction for attempted murder. Appellant did
not object to the jury instructions and acknowledges that only plain error may be
raised at this point.
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{¶51} Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the trial court. Crim.R. 52(B). The
doctrine of plain error requires that there must be: (1) a deviation from a legal rule;
(2) that is obvious, and; (3) that affects the appellant's substantial rights. State v.
Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶9. Plain error is not present unless,
but for the error complained of, the outcome of the trial would have been different.
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the
syllabus.
{¶52} Appellant cites only one case in support, that of United States v. Gipson
(C.A.5, 1977), 553 F.2d 453. Appellant cites this case as if it were a Sixth Circuit
case, which would represent persuasive (but not binding) precedent in this Court, but
the case is actually out of the Fifth Circuit. In Gipson, the defendant was convicted
under a federal statute that prohibited a person from receiving, concealing, storing,
bartering, selling, or disposing of a stolen vehicle or aircraft, known to be stolen, that
had moved in interstate commerce. In response to a question from the jury, the trial
judge instructed the jurors that they need not agree on which of the acts enumerated
in the statute the defendant had violated as long as each juror found that he had
committed one of the acts. The jury convicted him and Gipson appealed, arguing
that his right to a unanimous verdict had been violated. The Fifth Circuit Court of
Appeals concluded that the judge's instruction violated the defendant's right to have
the jury decide unanimously which course of action the defendant had pursued. The
court held that the trial judge's instruction improperly permitted the jury to convict on
a single count without choosing between “two distinct conceptual groupings.” One
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grouping involved the “housing” of stolen goods (by receiving, concealing, and
storing the goods) and the other grouping involved the “marketing” of the stolen
goods (by bartering, selling, and disposing of them). Id., 553 F.2d at 458-459.
{¶53} Both the United States Supreme Court and the Fifth Circuit, itself, have
questioned the validity of Gipson. See Schad v. Arizona, 501 U.S. 624, 635, 111
S.Ct. 2491, 115 L.Ed.2d 555 (1991); United States v. Bolts, 558 F.2d 316 (C.A.5,
1977) (the Fifth Circuit limited its Gipson holding to cases in which the judge
specifically and expressly permitted a nonunanimous verdict in its jury instructions).
No other court follows the Gipson holding. This appeal does not involve a challenge
to a jury instruction that specifically permitted a nonunanimous verdict, but rather,
raises an argument that the facts of the case gave rise to the necessity of further jury
instructions. Appellant has no other support for her argument, and, as Gipson does
not support Appellant's argument, either, this assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
{¶54} “The trial court violated Ms. Gilbert’s rights to due process and a fair
trial when, in the absence of sufficient evidence, the trial court convicted Ms. Gilbert
of complicity to attempted murder with firearm specification, and complicity to
felonious assault with firearm specification, in violation of Ms. Gilbert’s Fifth, Sixth,
and Fourteenth Amendment rights under the United States Constitution, and
Sections 10 and 16, Article I of the Ohio Constitution. (Sept. 26, 2008, Sentencing
Entry; Tr. 1558-59, 1604-17, 1666-67, 1828-33, 2179-83, 2189-90, 2221).”
{¶55} Although Appellant's counsel at trial conceded her guilt on the charge of
complicity to robbery, counsel raised Crim.R. 29 motions for acquittal on the other
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charges based, in part, on the theory that she did not know that Helms would shoot
Kaluza. Appellant challenges the sufficiency of the evidence as to her mens rea for
kidnapping, felonious assault and attempted murder.
{¶56} Sufficiency is a term of art meaning that legal standard which is applied
to determine whether a case may go to the jury or whether evidence is legally
sufficient to support the jury verdict as a matter of law. Sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question
of law. State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). A conviction
based on legally insufficient evidence constitutes a denial of due process. State v.
Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), citing Tibbs v.
Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶57} Where there is substantial evidence on which the trier of fact has based
its verdict, a reviewing court abuses its discretion in substituting its judgment for that
of the jury as to the weight and sufficiency of the evidence. State v. Nicely, 39 Ohio
St.3d 147, 529 N.E.2d 1236 (1988). The weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of fact to determine. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Therefore, an appellate court
must view the evidence in a light most favorable to the prosecution, and determine
whether any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 547 N.E.2d
492 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶58} The complicity statute states that: "No person, acting with the kind of
culpability required for the commission of an offense, shall do any of the following: * *
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* (2) Aid or abet another in committing the offense." R.C. 2923.03(A). The person
committing complicity must share the criminal intent of the principal. State v. Moore,
7th Dist. No. 02 CA 152, 2004-Ohio-2320. An aider and abettor is not simply
someone who associates with the principal. State v. Prichard, 1st Dist. No. C-
941011 (Feb. 7, 1996). The aider and abettor must have "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.” State v.
Johnson, supra, syllabus. The mens rea element of the crime can be inferred from
all the facts and circumstances of the case, and even from the criminal act itself. Id.
at 245; see also, State v. Cartellone, 3 Ohio App.3d 145, 148, 444 N.E.2d 68 (1981).
{¶59} “The law is well settled that when two or more people engage in a
course of criminal conduct and one does one part and the other another, each is
responsible for the acts of the other as though he had personally performed each of
the acts.” State v. Wynn, 131 Ohio App.3d 725, 729, 723 N.E.2d 627 (1998), citing
State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566 (1986).
{¶60} The facts of this case reveal that the crime was coordinated so that
Appellant would cause Kaluza to have an auto accident, after which Helms would
then rob him at gunpoint. It can certainly be inferred that Appellant knew a gun or
some other deadly weapon would be involved in the crime in order to induce Kaluza
into turning over his restaurant deposit. She purchased .380 caliber ammunition prior
to the robbery. The receipt for the purchase of the bullets was entered into evidence.
The bullets were found in her car after the robbery. Whether or not Appellant
specifically knew the gun would actually be fired is not a defense, because she is
-25-
responsible for whatever Helms did with the gun once it became part of the crime.
“The mere act of driving away from the scene of a shooting perpetrated by a
passenger of a vehicle has been held to be sufficient to uphold a conviction based on
complicity where the circumstances show the driver knew shots were being fired by
the passenger.” State v. Garner, 10th Dist. No. 07AP-474, 2008-Ohio-944, ¶21. By
law, Appellant is treated as if she herself shot Kaluza, and the act of firing the shot
directly at Kaluza through a car window in order to facilitate the robbery is evidence
enough to infer criminal intent to commit attempted murder. This assignment of error
is overruled.
ASSIGNMENT OF ERROR NO. 4
{¶61} “The trial court committed reversible error when it admitted Ms. Gilbert’s
statements into evidence against her at trial, in violation of Ms. Gilbert’s Fifth, Sixth,
and Fourteenth Amendment rights under the United States Constitution, and
Sections 10 and 16, Article I of the Ohio Constitution. (Aug. 8, 2008, Motion to
Suppress; Aug. 22, 2008, Suppression Hearing Tr.; Aug. 28, 2008, Judgment Entry;
Miranda Waiver, Aug. 22, 2008, Suppression Hearing Tr., Ex. 1; Hattie Gilbert
Interview DVD, Aug. 22, 2008, Suppression Hearing Tr., Ex. 2; Tr. 1731-45, 1828-
33).”
{¶62} Here, Appellant contends that the trial court should have suppressed
statements she made to the Youngstown police at her home and further statements
she made after she was arrested. Thus, she is challenging the ruling on her motion
to suppress.
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{¶63} When reviewing a motion to suppress, an appellate court must
determine whether the trial court's findings are supported by competent, credible
evidence. State v. Lloyd, 126 Ohio App.3d 95, 100, 709 N.E.2d 913 (1998). “In a
hearing on a motion to suppress evidence, 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, 548, 679 N.E.2d 321(1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (1994).
A reviewing court must accept the trial court's factual findings and the trial court's
assessment of witness credibility, but must independently determine as a matter of
law whether the trial court met the applicable legal standard. State v. Sharpe, 7th
Dist. No. 99CA510 (June 30, 2000).
{¶64} Appellant's first issue is with the statements she made while in her
home. Detective Mark Milstead was conducting a search for automobiles similar to
the one used in the crime, and he visited Appellant's residence as part of his inquiry.
He asked her four questions while at her home: if she knew why he had come to talk
to her; if she had worn a pink coat at the time of the accident; if she still had the coat;
and if she would give the coat to him. She admitted that she was involved in a car
accident with Kaluza. She admitted she had the coat, and she retrieved the coat for
Milstead. Appellant states that she was not given Miranda warnings prior to this
questioning. There does not seem to be any dispute about this point. Appellant
argues that Milstead knew he was going to arrest her when he asked her the
questions. Appellant implies that asking questions in her residence with the possible
-27-
intent to arrest based on the answers to these questions is the equivalent to actual
custodial interrogation.
{¶65} In Miranda v. Arizona, the United States Supreme Court developed
procedural safeguards to protect an individual's Fifth Amendment right against self-
incrimination during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). A suspect must be in custody and subject to
interrogation before police are required to give Miranda warnings. State v. Gumm, 73
Ohio St.3d 413, 429, 653 N.E.2d 253 (1995). A person is in custody for purposes of
a Miranda analysis when there has been a formal arrest or when a person's
movement is so restrained that a reasonable person would believe that he or she is
under arrest. State v. Petitjean, 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2000);
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). A
court must look at the totality of the circumstances in order to determine whether an
individual is in custody at any given time. California v. Beheler, 463 U.S. 1121, 1125,
103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).
{¶66} This Court has used a ten factor test to help decide whether a suspect
is in custody for purposes of a Miranda analysis:
{¶67} “1) What was the location where the questioning took place--i.e., was
the defendant comfortable and in a place a person would normally feel free to leave?
For example, the defendant might be at home as opposed to being in the more
restrictive environment of a police station;
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{¶68} “2) Was the defendant a suspect at the time the interview began
(bearing in mind that Miranda warnings are not required simply because the
investigation has focused);
{¶69} “3) Was the defendant's freedom to leave restricted in any way;
{¶70} “4) Was the defendant handcuffed or told he was under arrest;
{¶71} “5) Were threats made during the interrogation;
{¶72} “6) Was the defendant physically intimidated during the interrogation;
{¶73} “7) Did the police verbally dominate the interrogation;
{¶74} “8) What was the defendant's purpose for being at the place where
questioning took place? For example, the defendant might be at a hospital for
treatment instead of being brought to the location for questioning;
{¶75} “9) Were neutral parties present at any point during the questioning;
{¶76} “10) Did police take any action to overpower, trick, or coerce the
defendant into making a statement.” State v. Tate, 7th Dist. No. 07 MA 130, 2008-
Ohio-3245, ¶46-66.
{¶77} In this case, Appellant was in her own home, she was a suspect in the
case, her freedom of movement was not restricted, she was not handcuffed or told
she was under arrest, there were no threats made, there was no physical or verbal
intimidation, Appellant was not at her house simply to be questioned by the police,
Appellant's daughter was present during the questioning, and Appellant was not
tricked or coerced into making a statement. Other than the fact that she was a
suspect while the questioning took place, the overwhelming totality of the
circumstances indicates that she was not in custody.
-29-
{¶78} As to the statements she gave to police at the station, the record
reflects that Appellant did not raise any challenges to those statements in her motion
to suppress. The record also shows that she was read her Miranda rights and that
she waived those rights in writing prior to making the statements. (Trial Tr., p. 1828;
State’s Exh. 1.) She agreed to any questions from the police. She stated that an
unknown person asked her to participate in the crime to run someone off the road so
that a robbery could be committed. (Trial Tr., p. 1828.) She subsequently changed
her story to admit that she was part of a plan to rob Kaluza of his daily deposit. (Trial
Tr., p. 1829.) She said she watched Kaluza for weeks, examining the details of his
daily routine in making bank deposits. She admitted that she planned to obtain a gun
and that she purchased bullets. (Trial Tr., pp. 1829-1830.)
{¶79} Appellant now raises something she said in her videotaped confession
that she believes triggered her Miranda rights even after she signed a waiver of those
rights. She argues that she said “I don't want to talk about this,” and that this
statement was a re-invocation of her right to remain silent. There is no transcription
of this confession, but a DVD of the interview is attached to the transcript of the
August 22, 2008, motion to suppress hearing. The recording is dated March 28,
2008, and at 10:55:57 in the recording she interrupts a fabricated story she is telling
about some unknown person calling her on her cell phone and says very softly “I
don't want to talk about this.” It is not clear from the DVD whether she is repeating
something from the imaginary phone call or whether this is a statement directed to
the police officer in the room. A voice is then heard to say, “Hattie, the only thing that
is going to save you from years of prison is you being honest.” Appellant then
-30-
continued with her statement. Appellant contends that the police should have
recognized that she was refusing to answer any more questions, and that they
ignored her right to remain silent when they failed to cut off further questioning.
{¶80} Appellant has waived all but plain error because she did not raise this
constitutional issue in a motion to suppress. State v. Roskovich, 7th Dist. No. 04 BE
37, 2005-Ohio-2719, ¶13, citing State v. Peagler, 76 Ohio St.3d 496, 500, 668 N.E.2d
489 (1996). Crim.R. 12(C)(3) requires a defendant to file a motion to suppress in
order to challenge any statements that were obtained illegally. A motion to suppress
is the proper vehicle for raising challenges based on violations of the Fourth, Fifth
and Sixth Amendments. State v. French, 72 Ohio St. 3d 446, 449, 650 N.E.2d 887(1995). By failing to file a motion to suppress challenging the statements made at the
police station, Appellant has deprived the state from having the opportunity to
respond and present rebuttal evidence to the alleged error.
{¶81} Even though the alleged error has been waived, the state does attempt
to explain what happened at the interview in which Appellant confessed to her
involvement in the crime. The record contains a signed waiver of her Miranda rights
prior to Appellant’s interview. The error raised for the first time on appeal is that
Appellant attempted to cut off questioning while she was being interviewed, but that
the police continued to question her. The state accurately responds that any
invocation of the right to remain silent must be done unambiguously. State v.
Murphy, 91 Ohio St.3d 516 (2001), citing Michigan v. Mosely, 423 U.S. 96, 104, 96
S.Ct. 321, 46 L.Ed.2d 313 (1975). The defendant cannot invoke the right to remain
silent by simply being silent. Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250,
-31-
176 L.Ed.2d 1098 (2010). Further, if the accused makes an ambiguous statement
regarding the right to cut off questioning, the police are not required to end the
interrogation or ask clarifying questions about the statement. Id., 130 S.Ct at 2260.
In Murphy, the defendant's statement that “I'm ready to quit talking and I'm ready to
go home, too" was not deemed to be an unambiguous or unequivocal invocation of
the right to cut off questioning. (Emphasis omitted.) Murphy at 520-521.
{¶82} Similarly, Appellant’s statement is ambiguous. It is not clear if she is
making a statement at all because she is relating a story (that she admits is
completely false a few seconds later) about a phone call with an alleged co-
conspirator. Also, it is not clear what “this” refers to when she says “I don't want to
talk about this.” If she is referring to the fabricated story about the phone call, the
police did heed her request and did not continue asking her about the phone call.
The First District Court of Appeals recently held that the statement “that's all I can let
you know right there as far as yesterday” was ambiguous and did not invoke the right
to cut off questioning. State v. Strong, 1st Dist. Nos. C-100484, C-100486, 2011-
Ohio-4947, ¶48. The Eleventh District Court of Appeals held that the statements
“[y]ou got what you wanted. Okay?” and “I'm done" did not unambiguously invoke
the right to stop questioning. State v. Griffith, 11th Dist. No. 2001-T-0136, 2003-
Ohio-6980, ¶32-35. Based on these examples, and on the context of the statement
made by Appellant, the record does not indicate a clear, unequivocal, unambiguous
invocation of her right to end police questioning.
{¶83} Appellant's fourth assignment of error is overruled.
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ASSIGNMENT OF ERROR NO. 5
{¶84} “Ms. Gilbert was denied her right to confront the evidence against her at
trial, in violation of her Fifth, Sixth, and Fourteenth Amendment rights under the
United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
(Tr. 1936-37, 1945-53).”
{¶85} Appellant argues that the witness Ashlinn Sykes related a statement
made by codefendant Helms implicating Appellant in the crimes. Appellant is now
raising for the first time a Sixth Amendment claim that she was denied the right to
confront the witnesses against her. Appellant failed to object to this testimony at trial.
Therefore, it is reviewed only for plain error.
{¶86} The testimony in question is as follows:
{¶87} “Q. Did he at some point describe where he was going after breakfast?
{¶88} “A. No. He said he had to go get Hattie, and there was some things
that they had to do. That was it.” (Trial Tr., p. 1952.)
{¶89} The Sixth Amendment to the United States Constitution guarantees that
a criminal defendant shall have the right to confront the witnesses against him. The
admission into evidence of a confession of a codefendant who is not testifying at trial
is inadmissible under the Sixth Amendment. Bruton v. United States, 391 U.S. 123,
88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). “In Bruton, the Supreme Court held that in a
joint trial of two defendants, a confession of one co-defendant who did not testify
could not be admitted into evidence even with a limiting instruction that the
confession could only be used against the confessing defendant. The rationale of
Bruton was that the introduction of a potentially unreliable confession of one
-33-
defendant which implicates another defendant without being subject to cross-
examination deprives the latter defendant of his right to confrontation guaranteed by
the Sixth Amendment.” State v. Moritz, 63 Ohio St.2d 150, 153, 407 N.E.2d 1268(1980). However, Bruton errors are reviewed under a harmless error analysis: “Our
conclusion that appellant was implicated in these two instances contrary to his right
of confrontation does not, however, mean that his conviction is to be automatically
reversed. The line of cases following Bruton have firmly established that an error of
this sort may be harmless.” Id. at 155-156.
{¶90} Appellant’s own attorney admitted in his opening statement to the jury
that she was involved in the robbery, that she planned the robbery, and that she was
guilty of robbery. (Trial Tr., p. 1558.) Her confessions to the police also confirmed
her involvement in the crimes. The physical evidence established her connection to
the crimes, including the box of bullets she purchased and Helms’ wallet which were
found in her car, and the pink coat she wore which was identified by witness
Johnson. She admitted to staking out Kaluza at his restaurant to learn his banking
habits. She admitted she caused the car accident with Kaluza. It is difficult to see
how Ms. Sykes’ testimony added anything material to the overwhelming evidence
establishing Appellant’s involvement in the crime. This assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. 6
{¶91} “The trial court abused its discretion and denied Ms. Gilbert her right to
a fair trial by an impartial jury when it overruled her motion for a change of venue, in
violation of Ms. Gilbert’s rights under the Fifth, Sixth, and Fourteenth Amendments to
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the United States Constitution, and Sections 10 and 16, Article I of the Ohio
Constitution. (Sept. 11, 2008, Motion to Join Motion to Change Venue; Sept. 15,
2008 Judgment Entry; Sept. 17, 2009, Verdict Forms; Tr. 40-1167, 1265-67, 1276-77,
1407-12, 1420-22, 1434-36, 1438-41, 1460).”
{¶92} Appellant argues that the court should have granted the joint motion for
change of venue due to extensive prejudicial pretrial publicity. She argues that the
extensive pretrial publicity of the case made the selection of an impartial jury
impossible. A motion for change of venue is governed by Crim.R. 18(B), which
provides that “the court may transfer an action * * * when it appears that a fair and
impartial trial cannot be held in the court in which the action is pending.” A trial court
has broad discretion in its ruling on a motion for change of venue. State v. McKnight,
107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶60. A reviewing court must
therefore uphold the trial court's decision on the motion absent a clear showing of an
abuse of discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d
637, ¶38. An abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v.
Adams, 62 Ohio St.2d 151, 157-158, 16 O.O.3d 169, 404 N.E.2d 144 (1980).
{¶93} Appellant argues that the pretrial publicity in this case is similar to that
which occurred in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600(1966). In Sheppard, there was extensive pretrial publicity about the defendant's
refusal to take a lie detector test, and the stories included details about the
investigation and opinions as to why the defendant was guilty, the defendant's affair
with another woman and ensuing theories about the defendant's murder motive.
-35-
During the trial, the trial court allowed representatives of the media to dominate the
seating area of the courtroom, allowed the media to photograph the jury on a daily
basis, and did little to regulate their conduct. Id. at 343-345, 358-359. Although the
Supreme Court noted that trial court's failure to take precautions against the jury's
exposure to enormous pretrial publicity was not enough alone to constitute a due
process failure, they found that the trial court's subsequent acquiescence to the
media's dominance of the courtroom and its subversion of the entire trial process
required the reversal of Sheppard's habeas denial. Id. at 355-356, 363.
{¶94} Appellant’s motion for change of venue included approximately 35
articles from newspaper and internet sources regarding the case, ranging from
lengthy detailed articles to single-line references. Earlier articles detail the
occurrence of the crime, the investigation, and the arrest and bond hearings of both
Helms and Appellant, and discussion that a motion to suppress was filed and its
outcome. Almost all of the later articles discuss the community support for the victim
and fundraising for his medical bills. A supplement to the motion for change of venue
included a DVD of television news coverage of the accident from a WRTA bus
security camera. It is not clear if this DVD contained material that was broadcast or
made available to the general public. Appellant asserts that this extensive pre-trial
media coverage of the case prevented her ability to secure a fair trial.
{¶95} The media coverage in this case is not equivalent to that which
occurred in Sheppard. The mere existence of pretrial publicity is not a basis for
granting a change of venue. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665,
850 N.E.2d 1168, ¶117. By itself, even pervasive adverse pretrial publicity “does not
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inevitably lead to an unfair trial.” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-
2961, 911 N.E.2d 242, ¶58. The Ohio Supreme Court has held that a “careful and
searching voir dire provides the best test of whether prejudicial pretrial publicity has
prevented obtaining a fair and impartial jury from the locality.” State v. Yarbrough,
104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶61, quoting State v. Landrum,
53 Ohio St.3d 107, 117, 559 N.E.2d 710 (1990).
{¶96} In order to successfully claim that pretrial publicity has denied a
defendant of a fair trial, he must show that one or more jurors were actually biased.
Yarbrough at ¶61. Only in rare cases may prejudice be presumed. State v.
Lundgren, 73 Ohio St.3d 474, 479, 653 N.E.2d 304 (1995).
{¶97} The record shows that the voir dire on pretrial publicity for this case was
comprehensive, and constitutes almost two thirds of the 2333-page trial transcript.
First, the trial court asked the prospective jurors whether any of them knew about the
case through firsthand information, interactions within the community, or media
coverage. Only five of the twelve impaneled jurors fell within this group, and the
remaining seven who were eventually impaneled stated that they had no knowledge
of the case. The trial court then conducted an extensive sequestered individual voir
dire of all prospective jurors who had indicated any familiarity with the case. The
prospective jurors were asked about the extent of their knowledge of the case, and
asked whether they could set aside what they had heard and decide the case solely
on the evidence presented at trial. Counsel was able to question and disqualify
prospective jurors regarding their exposure to pretrial publicity. Following this
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questioning, the trial court excused a number of potential jurors who had formed fixed
opinions due to pretrial publicity or were otherwise unsuitable.
{¶98} Of the five impaneled jurors who indicated some prior knowledge of the
case, none knew or recognized the names of the defendants. They could not name
the victim, but four recognized his name when it was told to them. All five heard that
the victim worked for or was a manager of a KFC restaurant, and that the victim had
been critically injured. Some of the jurors had heard that there was a robbery and an
attempted murder by shooting. One juror had heard that a car crash and weapon
were used. All five of these jurors stated that they had not formed any opinion as to
the guilt or innocence of the defendants, and could be fair and impartial to both sides.
They all stated that they could set aside any information about the case that they had
previously been exposed to, and would only take into consideration the evidence
presented at trial. Appellant’s counsel passed on all five of these jurors for cause.
{¶99} Appellant argues that there was racial bias in the jury. Appellant points
out that there was a discovery during voir dire that someone had written a racial
epithet on the men’s bathroom wall in the courthouse. There was nothing in the
record indicating that any of the impaneled jurors wrote or even observed the graffiti
in the men's restroom. Appellant has not provided any evidence from the record to
imply that any one of the jurors who was in fact impaneled was “actually biased” as
required by Yarbrough.
{¶100} If the defense does not challenge any of the impaneled jurors for
cause due to pretrial publicity, the absence of challenges indicates that the defense
“was not particularly troubled by the jury's exposure to pretrial publicity.” McKnight,
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supra, at ¶63, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817
N.E.2d 29, at ¶52. Defense counsel made repeated arguments regarding the
prejudicial effect of pretrial publicity during the individual voir dire on the specific
subject of publicity. Yet, counsel made no such argument for the five jurors that were
eventually selected, and passed on excluding those jurors when given the
opportunity to object based on bias from knowledge of the case. This undermines
any presumptions of bias based on these five jurors' prior knowledge of the case.
{¶101} The media's presence in this case was not so pervasive as to per se
deny Appellant a fair trial, and the comprehensive voir dire process resulted in no
example of bias on the part of any juror who was actually impaneled. Appellant's
sixth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 7
{¶102} “The trial court abused its discretion when it sentenced Ms. Gilbert to
maximum, consecutive terms of imprisonment on all counts in the indictment, in
violation of Ohio Revised Code Sections 2929.11 and 2929.12, and in violation of
Ms. Gilbert’s rights under the Fourteenth Amendment to the United States
Constitution, and Section 16, Article I of the Ohio Constitution. (Sept. 26, 2008,
Sentencing Entry; Sentencing Entry Tr. 10-11, 14).”
{¶103} In this assignment of error, Appellant argues that the trial court
abused its discretion in imposing maximum consecutive sentences. Appellate courts
review felony sentences using a two-fold analysis. “First, they must 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
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law. If this first prong is satisfied, the trial court's decision shall be reviewed under an
abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124, ¶4 (O'Connor, J., plurality opinion), citing State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶104} A sentencing court must consider the principles and purposes of
sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.
2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38. The sentencing
court need not make findings regarding these statutes. We have held that a silent
record raises the rebuttable presumption that the sentencing court considered the
statutory sentencing criteria. State v. James, 7th Dist. No.07CO47, 2009-Ohio-4392,
¶50. Only if the record affirmatively shows that the trial court failed to consider the
principles and purposes of sentencing will a sentence be reversed on this basis,
unless the sentence is strikingly inconsistent with relevant considerations. Id.{¶105} Appellant does not argue that the sentence is contrary to law, but only
that it constitutes an abuse of discretion. An abuse of discretion means more than an
error of judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
Thus, in the felony sentencing context, “[a]n abuse of discretion can be found if the
sentencing court unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and
R.C. 2929.12.” State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34.
Although a trial court was formerly required to engage in detailed judicial factfinding
in order to justify imposing maximum or consecutive sentences, this is no longer the
case. Foster, supra, paragraph seven of the syllabus. The decision to impose
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maximum or consecutive sentences is simply part of the trial court's overall discretion
in issuing a felony sentence and is no longer tied to mandatory factfinding provisions.
{¶106} Appellant claims that she played only a limited role in the crime and
that she did not know that Helms would actually use the gun. She also states that
she had no prior criminal record, had not been previously adjudicated a juvenile
delinquent, had no history of drug or alcohol abuse, and showed genuine remorse for
her actions. She contends that she in unlikely to reoffend. She believes that these
factors should have resulted in less than maximum consecutive sentences.
{¶107} The record reveals that Appellant was extensively involved in the
planning of this crime. She observed Kaluza for many weeks to determine how and
when to commit the crime. She purchased the bullets for the gun. Helms’ wallet with
his driver’s license and his cell phone were found in her car. She caused the
accident that allowed Helms to approach Kaluza and shoot him. She knew the
purpose of her causing an accident was to commit an armed robbery. She saw
Kaluza get shot. She stayed at the crime scene to talk to Helms while Kaluza sat,
bleeding and paralyzed, in his car. This was a cold, calculated crime involving a
firearm that was made possible in large part by Appellant’s actions. The court was
within its discretion to treat both Helms and Appellant as equally guilty and equally
deserving of punishment in this case. (9/23/08 Tr., p. 12.) The trial judge did not
believe that Appellant had any genuine remorse. (9/23/08 Tr., p. 14.) It is true that
some of the seriousness factors in R.C. 2929.12 do weigh in Appellant’s favor,
including her lack of a prior criminal record. The existence of one or more mitigating
factors, though, does not preclude the court from imposing maximum consecutive
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sentences. The seriousness and recidivism factors are for the court’s consideration,
but ultimately, the court retains the discretion to impose a sentence that it believes is
most appropriate. Based on the factors cited by the trial court, and on the record of
this case, there was no abuse of discretion in imposing maximum consecutive
sentences. This assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 8
{¶108} “Defense counsel rendered ineffective assistance of counsel in
violation of Ms. Gilbert’s rights under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, and Sections 10 and 16, Article I of the Ohio
Constitution. (Hattie Gilbert Interview DVD, Aug. 22, 2008 Suppression Hearing Tr.,
Ex. 2; Tr. 1828-33, 1947-53, 1976).”
{¶109} Appellant contends that her trial counsel was ineffective for failing to
challenge the confession she made to the police on March 28, 2008. During the
interview she stated “I don’t want to talk about this.” Appellant argues that this
statement was enough to cut off further questioning, and that her attorney should
have tried to exclude the remainder of the confession on that basis. The error is
raised in this appeal, but it is raised as plain error rather than preserved error.
Appellant also argues that her counsel should have objected to the testimony of
Ashlinn Sykes. Ms. Sykes testified regarding a statement made by Helms that
inculpated Appellant. This error was also raised on appeal as plain error.
{¶110} We review a claim of ineffective assistance of counsel under the two-
part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). First, it must be shown that counsel's performance has fallen
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below an objective standard of reasonable representation. Second, the defendant
must establish that prejudice arose from the lawyer's deficient performance. State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To show prejudice, a defendant
must prove that, but for his lawyer's errors, a reasonable probability exists that the
result of the proceedings would have been different. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. Prejudice may not be assumed but must be affirmatively shown. See State
v. McGee, 7th Dist. No. 07MA137, 2009-Ohio-6397, ¶13.
{¶111} When considering an ineffective assistance of counsel claim, the
reviewing court should not consider what, in hindsight, may have been a more
appropriate course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656
N.E.2d 643 (1995). Our review of counsel's action is highly deferential as there is a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. Id.{¶112} Trial counsel's failure to file a motion to suppress does not necessarily
constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378,
389, 721 N.E.2d 52 (2000). However, the failure to file a motion to suppress may
constitute ineffective assistance of counsel when the record demonstrates that the
motion would have been granted. State v. Barnett, 7th Dist. No. 06-JE-23, 2008-
Ohio-1546, ¶31.
{¶113} Appellant cannot demonstrate that a motion to suppress the
confession at the police station would have been granted. As earlier discussed, it is
not at all clear that Appellant’s statement was an attempt to cut off questioning, and
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she certainly did not assert her right to cut off questioning in an unambiguous and
unequivocal manner, as required by State v. Murphy and Michigan v. Mosely, supra.
She also showed no hesitation in continuing with the questioning after she made the
statement. Further, the confession was only one part of a wide array of evidence
against Appellant. She herself had told the police at her home that she was involved
in a car accident with the victim, and she produced the pink coat she wore that had
been identified by witnesses and in a WRTA video. Her car was also indentified in
the video. The type of bullets used in the crime were found in her car, along with
Helms’ wallet and driver’s license. The receipt that was generated when she
purchased the bullets was also introduced as evidence. The confession did add
details as to the extent of her involvement in planning the crime, but it was by no
means the only evidence against her. It is not apparent that the outcome of the case
would have been different had the confession been excluded.
{¶114} Regarding the failure to object to Ms. Sykes’ testimony, once again
Appellant cannot show any prejudice. At most, the statement of Ms. Sykes (in which
she repeated a statement from Helms that “he had to go get Hattie, and there was
some things that they had to do”) showed that Appellant knew Helms and may have
had a connection to the crime. Many other aspects of the evidence established
these two points as well and did it more effectively. Her own attorney conceded in
his opening statement that Appellant was guilty of robbery: “The evidence will show
that Hattie Gilbert planned the robbery.” (Trial Tr., p. 1558.) She herself told the
police that she was at the crime scene. Ms. Sykes did not add any material evidence
to the case when she related the statement made by Helms. Without a showing of
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prejudice, a defendant cannot prove ineffective assistance of counsel, and prejudice
means that the outcome of the case would have been different. The outcome of this
case would not have been different had counsel objected to Ms. Sykes’ statement.
This assignment of error is overruled.
Conclusions
{¶115} The only reversible error in this case is the error that has been
conceded by the state. The state agrees that the firearm specifications should have
merged, and we hereby remand to the trial court to correct the sentence accordingly.
We overrule the remaining assignments of error. Appellant has not shown that there
were allied offenses that should have been merged. She did not establish any error
in the jury instructions. The evidence establishes her complicity with all aspects of
the crime, including the use of the gun. There is no reversible error with respect to
statements she made to the police both before and after arrest. A statement made
by witness Sykes should likely have been stricken on Sixth Amendment grounds, but
there was no prejudice caused by the statement. Appellant did not establish error in
the court’s decision to overrule a motion to change venue. The maximum
consecutive sentences were within the discretion of the trial court. Finally, Appellant
did not prove ineffective assistance of trial counsel.
{¶116} The judgment of the trial court as to Appellant’s convictions and
sentences for complicity to attempted murder, complicity to felonious assault,
complicity to aggravated robbery, complicity to kidnapping, are affirmed. The
judgment of the trial court regarding the imposition of four consecutive prison terms
for four firearm specifications is reversed. The case is remanded to the trial court to
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correct the sentence so that the four firearm specifications are merged and only one
three-year prison term is imposed for the firearm specifications.
Donofrio, J., concurs.
Vukovich, J., concurs.