[Cite as State v. Fair,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24120

v. : T.C. NO. 08CR4546

MARK A. FAIR : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 1st day of July , 2011.

..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LYNNE M. FLEMING, Atty. Reg. No. 0078520, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Mark A. Fair was convicted after a jury trial in the Montgomery County

Court of Common Pleas of complicity to commit burglary, receiving stolen property, and

assault on a peace officer. The trial court sentenced him to an aggregate term of six years in 2

prison.

{¶ 2} Fair appeals from his conviction and sentence, claiming that his counsel

rendered ineffective assistance, that the trial court erred in overruling his Crim.R. 29 motion,

that the trial court erred in precluding defense counsel from discussing a lesser related

offense during closing argument, and that his convictions for complicity to commit burglary

and receiving stolen property should have been merged. For the following reasons, the trial

court’s judgment will be affirmed in part and reversed in part, and the matter will be

remanded for resentencing.

I

{¶ 3} Michael1 and Jane Maney reside with their adult children, Seth and Stacy,2 at

300 Southview Avenue in Oakwood. During the morning of November 21, 2008, their

home was burglarized.

{¶ 4} According to the State’s evidence at the June 2010 trial, at approximately

8:30 a.m. on November 21, 2008, Jane Maney left with Seth and Stacy to take Stacy to work

and to run errands. Michael remained in the house and fell asleep in the downstairs den.

Jane and Seth returned around 11:30 a.m. They woke Michael, and Michael left for an

appointment shortly thereafter. When Seth headed to the stairs leading to the second floor,

he heard the sounds of people moving upstairs and objects being dropped on the floor. Seth

informed his mother, who also heard sounds upstairs, and the two left the house, leaving

their coats and cell phones behind.

1 Michael Maney’s first name is Charles, but he is known by his middle name. 2 At the time of the June 2010 trial, Stacy was 28 years old, and Seth was 24 years old. 3

{¶ 5} Seth drove them around the block and then down the street to a gas station to

use a pay phone to call the police. When the pay phone did not work, they decided to drive

to the nearby police station. As they drove, they saw a man running from the direction of

their home. The Maneys arrived at the Oakwood police station within a minute and

provided a description of the man they had seen to the police.

{¶ 6} Lieutenant Keith Benson heard a dispatch reporting the burglary and the

description of the person the Maneys had seen running. Benson quickly responded to the

area and noticed a person matching that description standing at the intersection of Far Hills

Avenue and Thruston Boulevard (an intersection known as the “Five Points” intersection),

which is near Southview Avenue. Benson turned onto Thruston, parked his vehicle, and

attempted to stop the man, later identified as Fair. Fair made eye contact with the officer,

turned, and ran across several yards. Benson chased Fair on foot, and stopped him by

tackling Fair’s legs. A fight ensued, and Fair was ultimately subdued when other officers

arrived and handcuffed him. Several items of the Maneys’ personal property were found in

the yard where Fair and Benson had struggled.

{¶ 7} Fair was arrested and taken to the Oakwood police station, where several

other items belonging to the Maneys were removed from his pockets. Fair initially

informed the officers that he was not “going to tell you anything but my name.” However,

while there, Fair made several unsolicited statements to Detective Hill and Officer Wilson,

including that “he should have never went with those guys,” that he “was with Benny Brown

and Mike,” that “they were driving around and they were doing some stuff,” and that he

“needed money.” Because the struggle between Fair and Lieutenant Benson had caused 4

bleeding, the officers asked Fair if he would voluntarily submit to have his blood withdrawn

at a hospital for testing. Officer Wilson took Fair to Kettering Medical Center.

{¶ 8} While at the hospital, Fair asked to speak with Detective Hill again. Fair

was returned to the Oakwood police station. Hill asked Fair what he wanted to say. Fair

responded, “You help me out, I’ll help you out.” Fair stated that he did not commit the

burglary, and that he was with Benny and Mike. Fair told Hill that “I fence the property for

them.” Fair stated, “Benny and Mike steal the property, and they give it to me, and I know

how to get rid of it. I stayed in the car while Benny and Mike committed the burglary.”

After this exchange, Fair was transported to the Montgomery County Jail.

{¶ 9} In December 2008, Fair was indicted with complicity to commit burglary,

receiving stolen property, and assault on a peace officer.

{¶ 10} In February 2009, Fair moved to suppress all of the evidence against him,

arguing that the Oakwood officers had no reasonable suspicion or probable cause upon

which to stop him, that the warrantless search of his person was unlawful, and that he was

questioned by the Oakwood officers without a waiver of his rights under Miranda v. Arizona

(1966),

,

,

. The trial court held a

suppression hearing, following which the parties agreed to submit supplemental briefs.

{¶ 11} Before the trial court ruled on the suppression motion, the parties filed

stipulations regarding the admissibility of the evidence. The parties agreed that the

Oakwood police officers had reasonable suspicion to make an investigatory stop of Fair and

had probable cause to search Fair incident to a lawful arrest. The parties further agreed that

certain statements made by Fair at the police station were admissible as spontaneous 5

statements, while other unspecified statements were not admissible. In light of the

stipulations, Fair withdrew his motion to suppress.

{¶ 12} In January 2010, the case was tried to a jury. The jury found Fair guilty of

receiving stolen property and assault on a peace officer, but could not reach a verdict on the

complicity to commit burglary charge; the trial court declared a mistrial as to that charge.

In June 2010, a second jury trial was held on complicity to commit burglary, and the jury

found Fair guilty.

{¶ 13} At sentencing, the trial court sentenced Fair to five years for complicity to

commit burglary (Count 1) and to one year for receiving stolen property (Count 2). The

court indicated that the offenses would merge, but if they did not, the sentences would run

concurrently. The court imposed a one-year sentence for assault on a peace officer (Count

3), to run consecutively to the other sentences. The total sentence was six years. In its

termination entry, the court merged Counts 2 and 3 (receiving stolen property and assault),

and indicated that the one-year sentence would be served consecutively to the five-year

sentence for complicity to commit burglary.

{¶ 14} Fair raises four assignments of error on appeal.

II

{¶ 15} We begin with Fair’s second assignment of error, which states:

{¶ 16} “THE TRIAL COURT ERRED IN OVERRULING

DEFENDANT/APPELLANT’S RULE 29 MOTION FOR ACQUITTAL.”

{¶ 17} At the conclusion of the State’s case, Fair moved for a judgment of acquittal

on the ground that the State failed to prove that he “did anything to aid and abet the burglary 6

that took place.” Fair did not dispute that the Maneys’ home was burglarized on November

21, 2008. He argued, however, that there was no evidence that placed him inside the home

or on the property and that his presence near the home while in possession of the Maneys’

property was insufficient to constitute complicity. Fair further emphasized that his

statements to the police supported the view that he had committed receiving stolen property,

not burglary. The trial court denied Fair’s motion.

{¶ 18} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court

applies the same standard as is used to review a sufficiency of the evidence claim. State v.

Thaler, Montgomery App. No. 22578,

(citation omitted). “A

sufficiency of the evidence argument disputes whether the State has presented adequate

evidence on each element of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.” State v. Wilson, Montgomery App. No. 22581,

, citing State v. Thompkins,

,

. When reviewing

whether the State has presented sufficient evidence to support a conviction, the relevant

inquiry is whether any rational finder of fact, after viewing the evidence in a light most

favorable to the State, could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Dennis,

, 430,

, citing Jackson

v. Virginia (1979),

,

, 61 L.Ed.2d. 560. A guilty verdict will

not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached

by the trier-of-fact.”

{¶ 19} R.C. 2923.03(A)(2) states that “[n]o person, acting with the kind of

culpability required for the commission of an offense, shall *** [a]id or abet another in 7

committing the offense.” A person aids and abets the commission of a crime when he

advises, supports, assists, encourages or cooperates with the principal offender, and shares

the criminal intent of the principal offender. State v. Johnson,

,

. “Such intent may be inferred from the facts and circumstances surrounding

the crime.” State v. Whitfield, Montgomery App. No. 22432,

.

{¶ 20} Viewing the evidence in the light most favorable to the State, we find

sufficient evidence to support the conviction for complicity to commit burglary. Jane and

Seth Maney testified that they heard the sounds of two or more people inside their home,

without their permission, shortly before noon on November 21, 2008. After attempting to

call the police from a nearby payphone, they saw a man in dark jeans and a large

dark-colored parka with fur around the hood running from the area of their house. Within a

short time, the police were notified of the burglary and the person that the Maneys had seen,

and an Oakwood officer located Fair, who matched the description reported by the Maneys,

at the “Five Points” intersection near the Maneys’ home. When Fair was apprehended,

several items of the Maneys’ personal property were found on the ground where the struggle

had occurred, as well as in Fair’s pockets. Although Fair claimed the burglary was

committed by Benny and Mike, Detective Hill testified that he was unable to locate Benny

Brown, and there was no corroboration for Fair’s assertion that he merely waited in the car

while Brown and Mike “were doing stuff.” Taken together, the jury could have reasonably

believed that Fair actively participated in the burglary, particularly given that the Maneys

heard multiple people in their house and Fair was found running from the area with the

Maneys’ personal property in his possession. 8

{¶ 21} As related by Detective Hill at trial , Fair also made statements to Oakwood

officers that he “fenced” stolen property for Benny Brown and Mike and that he had

remained in the car while those individuals entered the Maneys’ home to commit the

burglary. Fair had also indicated, however, that he had needed money. Thus, even if the

jury believed that Fair had not entered the residence, the jury could have reasonably

concluded that Fair had planned the burglary with Benny and Mike due to Fair’s need for

money. The trial court did not err in denying Fair’s Crim.R. 29 motion.

{¶ 22} The second assignment of error is overruled.

III

{¶ 23} Fair’s first assignment of error states:

{¶ 24} “TRIAL COUNSEL WAS INEFFECTIVE IN STIPULATING TO THE

ADMISSIBILITY OF INCRIMINATING STATEMENTS MADE BY DEFENDANT

DURING CUSTODIAL INTERROGATION.”

{¶ 25} Fair’s trial counsel filed a motion to suppress the evidence seized from and

the statements made by Fair. The motion was withdrawn after Fair and the State stipulated

to the lawfulness of Fair’s stop and arrest and the admissibility of certain statements made by

Fair to Oakwood police officers.

{¶ 26} To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel’s conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington (1984),

,

,

; State v. Bradley 9

(1989),

. Deficient performance means that claimed errors were so

serious that the defense attorney was not functioning as the “counsel” that the Sixth

Amendment guarantees. State v. Cook (1992),

.

{¶ 27} The “failure to file a suppression motion does not constitute per se ineffective

assistance of counsel.” State v. Madrigal,

, 389,

, quoting

Kimmelman v. Morrison (1986),

,

,

.

Rather, trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of

counsel only if the failure to file the motion caused the defendant prejudice; that is, when

there is a reasonable probability that, had the motion to suppress been filed, it would have

been granted. State v. Howard, Montgomery App. No. 23795,

, ¶22, citing

State v. Wilson, Clark App. 08CA0445,

, ¶11. In the same vein, trial

counsel’s decision to stipulate to the admissibility of evidence and to withdraw a motion to

suppress would constitute ineffective assistance of counsel only if such a decision were

prejudicial.

{¶ 28} Fair’s assignment of error is confined to the statements that he made at the

Oakwood police station. Accordingly, we will likewise limit our discussion to those

statements.

{¶ 29} According to Detective Hill’s testimony at the suppression hearing, Fair was

secured in a holding cell upon being taken to the station by Officer Wilson. When Hill

arrived 15 minutes later, he asked Fair for his name, but Fair was uncooperative. Hill

explained to Fair that the officers were going to find out who he was and would take him to

the Montgomery County Jail for live identification, if necessary. Fair responded, “I’m not 10

going to tell you anything but my name.” Fair provided his name, address, and Social

Security number, and he said that he was on parole. Fair repeatedly mumbled obscenities to

himself. He also commented that he “should’ve never went with those guys” or “took that

shit.” Based on this comment, Detective Hill believed that Fair had direct knowledge of the

burglary.

{¶ 30} Detective Hill told Fair that he needed to read him his Miranda rights before

they spoke further. Hill testified that Fair “wouldn’t even allow me to read him his rights”

and that Fair “declined totally *** to be *** formally interviewed.”

{¶ 31} For the next few minutes, Detective Hill and Officer Wilson chatted amongst

themselves. At one point, Hill asked Wilson if he had heard any updates about Lieutenant

Benson, who had been taken to the hospital. Fair then stated that he had been “with two

guys named Benny Brown and Mike,” that they “were driving around and they were doing

some stuff,” and that he (Fair) “needed money.” Detective Hill asked some follow-up

questions, such as questions about the type of car they were in, about the altercation with

Benson, and about gloves that were found on Fair’s person; Fair responded to those

questions, but the State did not elicit the exact wording of Fair’s response (and these

statements were not offered at trial).

{¶ 32} During the conversation, the officers asked Fair if he would be willing to go

to the hospital for a voluntary blood draw due to the exchange of blood during the altercation

between Fair and Benson. Fair expressed that his ribs were sore. Fair was taken to

Kettering Medical Center by Officer Wilson.

{¶ 33} While at the hospital, Fair asked to speak with Detective Hill again. Wilson 11

notified Hill, who told Wilson to return Fair to the Oakwood station when Fair was released

from the hospital. At approximately 6:00 p.m., Officer Wilson and Fair came into the

holding cell area. Upon being asked what he wanted, Fair said, “You help me out and I’ll

help you out.” Detective Hill responded to Fair that he (Fair) was on parole, had “100

years on the shelf,” had two active felony warrants, and was “facing a bunch of charges” in

Oakwood; Hill stated that there was nothing that he could do.

{¶ 34} Fair responded that he “did not commit any burglary” and that he “was with

Benny Brown and Mike.” Fair stated that he “fences property for them” and that “Benny

and Mike steal the property, they give it to [Fair], and [Fair] knows where to get rid of it.”

Fair indicated that he had “stayed in the car while Benny and Mike committed the burglary.”

Hill asked Fair additional questions after these statements by Fair and told Fair about the

evidence against him, but the prosecutor did not have the detective testify to Fair’s

responses. Detective Hill made clear that Fair never received Miranda warnings.

{¶ 35} At the conclusion of the testimony, the prosecutor informed the trial court

that he had “only elicited statements that in our opinion *** would not have violated

Miranda or the Constitutional rights of the Defendant. *** [T]he State has only elicited such

statements that would be spontaneous statements.” (Supp. Tr. at p.52) The State repeated

that it had brought out only the “specific statements” that it believed to be admissible and

“left out the ones that we don’t believe *** should come in.”

{¶ 36} The parties subsequently stipulated that the following statements were

admissible as spontaneous statements: (1) “I’m not going to tell you anything but my name;”

(2) “I should have never went with those guys;” (3) “I was with Benny Brown and Mike;” 12

(4) “They were driving around and they were doing some stuff;” (5) “I needed money;”

(6) “You help me out, I’ll help you out;” (7) “I did not commit any burglary;” (8) “I was with

Benny and Mike, and I fence property for them;” (9) “Benny and Mike steal the property,

and they give it to me, and I know how to get rid of it;” and (10) “I stayed in the car, while

Benny and Mike committed the burglary.” The stipulation further provided that the other

statements made by Fair to police officers on November 21, 2008, were inadmissible. In

exchange for the stipulation, Fair withdrew his motion to suppress. The prosecutor, Fair’s

counsel, and Fair signed the stipulation.

{¶ 37} The Fifth Amendment to the United States Constitution provides that “[n]o

person *** shall be compelled in any criminal case to be a witness against himself.” “The

Fifth Amendment privilege against compulsory self-incrimination ‘protects against any

disclosures that the witness reasonably believes could be used in a criminal prosecution or

could lead to other evidence that might be so used.’ ” Hiibel v. Sixth Judicial Dist. Court of

Nevada, Humboldt Cty. (2004),

,

,

,

quoting Kastigar v. United States (1972),

,

,

;

Ohio v. Reiner (2001),

,

,

. “The right to

Miranda warnings is grounded in the Fifth Amendment’s prohibition against compelled

self-incrimination.” State v. Strozier,

,

,

citing Moran v. Burbine (1986),

,

,

.

{¶ 38} The first stipulated statement was made by Fair in response to Detective

Hill’s attempts to ascertain Fair’s name and other identifying information. A police officer

is not required to provide Miranda warnings prior to asking “routine booking questions.” 13

State v. Hale,

,

, ¶32. “Routine booking questions are

questions asked in order ‘to secure the biographical data necessary to complete booking or

pretrial services.’” Id. at ¶33, quoting Pennsylvania v. Muniz (1990),

,

,

. The first stipulated statement would have been admissible

even absent the stipulation.

{¶ 39} According to Hill’s testimony at the suppression hearing, the second

stipulated statement was volunteered by Fair while Fair was responding to the booking

questions. A suspect who volunteers information, and who is not even asked any questions,

is not subject to a custodial interrogation and is not entitled to Miranda warnings. State v.

McGuire (1997),

, citing State v. Roe (1989),

.

In other words, “Miranda does not affect the admissibility of ‘[v]olunteered statements of

any kind.’”

citing Miranda,

; State v. Montgomery,

,

¶15. The third, fourth, and fifth stipulated statements regarding Fair’s involvement with

Benny and Mike were made by Fair while Hill and Wilson were talking to each other about

Benson’s being at the hospital. Fair argues that the officers’ conversation was the

functional equivalent of an interrogation, because it was likely to elicit an incriminating

response.

{¶ 40} “‘Interrogation’ includes express questioning as well as ‘any words or actions

on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.’”

, quoting Rhode Island v. Innis (1980),

,

,

. “Interrogation” must reflect “a measure of compulsion above 14

and beyond that inherent in custody itself.” Innis,

. “Police officers are not

responsible for unforeseeable incriminating responses.” State v. Waggoner, Montgomery

App. No. 21245,

;

.

{¶ 41} In Innis, the defendant was arrested for an armed robbery involving a

shotgun; at the time of his arrest, Innis was unarmed. Innis was given Miranda warnings,

and he invoked his right to speak with a lawyer. While three officers transported Innis to

the police station, one of the officers began talking to another officer regarding the missing

shotgun. One of the officers stated that there were “a lot of handicapped children running

around in this area” because a school for such children was nearby, and “God forbid one of

them might find a weapon with shells and they might hurt themselves.” With that, Innis

insisted on showing the officers where he had concealed the shotgun. He subsequently

moved to suppress that evidence. The trial and appellate courts denied the motion.

{¶ 42} On review, the United States Supreme Court held that the statements the

officers made were not ones which they should have known were reasonably likely to elicit

an incriminating response. There was no express questioning, and nothing in the record

indicated that the officers were aware that the defendant was “particularly susceptible to an

appeal to his conscience concerning the safety of handicapped children,” or that he was

“unusually disoriented or upset” when the statements were made. Though some “subtle

compulsion” was present, the Court concluded that the officers’ words did not constitute

interrogation.

{¶ 43} We are not convinced that Detective Hill and Officer Wilson’s casual

discussion regarding Benson’s physical condition involved a level of compulsion such that 15

the officers should have known that Fair would likely make an incriminating remark in

response. Nothing in the record suggests that the officers emphasized the seriousness of

Benson’s injuries and took advantage of a known susceptibility, such that Fair would have

been compelled to respond.

{¶ 44} Nevertheless, even assuming that Detective Hill and Officer Wilson should

have known that their conversation was likely to elicit an incriminating response from Fair

regarding the assault, we are not persuaded that Fair’s statements regarding his activities

with Benny and Mike were a reasonably foreseeable response to that conversation. The

officers’ conversation focused solely on Benson’s medical condition. Although Benson’s

injuries were the product of an altercation with Fair, that conduct was separate and distinct

from the burglary about which Fair commented. The officers could not have reasonably

expected that Fair would make statements regarding the individuals involved in the burglary,

given the topic of the conversation that the officers were having. Under these facts, the

stipulated statements made at the station during the officers’ conversation were spontaneous

and volunteered responses. See State v. Thompson, Clark App. No. 07 CA 35,

.

{¶ 45} Finally, we find no Miranda violation as to the remaining stipulated

statements, which were made after Fair left Kettering Medical Center and returned to the

police station. Fair requested the opportunity to speak with Detective Hill again, and Hill’s

question to Fair asking Fair what he wanted merely acknowledged that Fair had asked to see

him (Hill). Stated simply, Fair initiated the conversation and his statement that “You help

me out, I’ll help you out” was not the product of police questioning. Detective Hill’s 16

response that there was nothing that he (Hill) could do also did not constitute interrogation,

and the remaining stipulated statements were unsolicited and spontaneous.

{¶ 46} Accordingly, upon review of the suppression hearing, the statements to which

defense counsel had stipulated would have been admissible even without the stipulation.

We find no reasonable probability that the quantum of admissible statements would have

been different had defense counsel elected not to enter into the stipulation and allowed the

trial court to rule on Fair’s suppression motion. Counsel did not render ineffective

assistance by entering into the stipulation with the State.

{¶ 47} The first assignment of error is overruled.

IV

{¶ 48} Fair’s third assignment of error states:

{¶ 49} “THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL

FROM ARGUING TO THE JURY THAT DEFENDANT SHOULD BE CONVICTED

RATHER OF A LESSER RELATED OFFENSE.”

{¶ 50} In his third assignment of error, Fair claims that the trial court deprived him

of his constitutional right to due process when it precluded him from arguing during closing

argument that his conduct constituted receiving stolen property, a lesser related charge,3 but

not complicity to commit burglary.

{¶ 51} “The purpose of closing argument is to summarize the evidence at trial.”

John F. Bushelman Const., Inc. v. Glacid Group, Inc. (June 26, 1996), Hamilton App. Nos.

3 Fair acknowledges that receiving stolen property is not a lesser included offense of complicity to commit burglary. Rather, he argues that it is a related, less serious offense. 17

C-950412, C-950438. Prosecutors and defense counsel are afforded a wide degree of

latitude during closing arguments to address what the evidence has shown and what

reasonable inferences may be drawn from that evidence. State v. Black,

,

, citing State v. Lott (1990),

.

{¶ 52} At the conclusion of the State’s case, the prosecutor asked the trial court to

preclude Fair’s counsel from arguing that his conduct constituted receiving stolen property.

The prosecutor argued that the jury was faced only with complicity to commit burglary, and

the mention of the receiving stolen property charge, of which Fair had already been

convicted, would confuse the jury. The State asserted that “by mentioning that other

charge, that it’s not a receiving stolen property that he’s on trial for, implies to the jury that

that’s what he should have been charged with. And that’s misleading the jury. And that

would imply to the jury that he should have been charged with something else.”

{¶ 53} Fair’s counsel countered that he would not go into detail about the definition

of receiving stolen property, only that there is a charge of receiving stolen property that is

not before the jury. Counsel stated, “But what I would be able to say is, this case is not

whether or not Mr. Fair is guilty of receiving stolen property, which is the facts. *** But for

me to not mention to the jury that there are two separate and distinct charges, that they are

not to deal with receiving stolen property, does not mean I can’t mention it for the purpose

of folks, this is about complicity. And I think Mr. Fair would be deprived of his rights to a

fair trial in this retrial if that issue can’t at least be mentioned.” Defense counsel

emphasized that he was able to contrast receiving stolen property from complicity to commit

burglary in the first trial and that trial resulted in a hung jury on the complicity charge. 18

{¶ 54} The trial court granted the State’s request, stating: “*** I think for you

[defense counsel] to bring up the issue of receiving stolen property at this point is improper

and may impinge upon the State’s request for a fair trial because the issue is, is he [Fair]

guilty of complicity or not. ***”

{¶ 55} Defense counsel’s theme during closing argument was that the State had

failed to provide any evidence that Fair aided and abetted the burglary. He began, stating:

{¶ 56} “*** We can sit here and talk about all the things Mr. Fair may or may not

have done that day. But you are charged with deciding whether or not the State has proven

to you beyond a reasonable doubt that Mr. Fair purposely aided or abetted another in the

commission – committing the offense of burglary. That is your charge, ladies and

gentleman of the jury.

{¶ 57} “So the issue before you is very simple. Did Mark Fair aid and abet those

responsible for the burglary of the Maneys’ home on November 21, 2008? I’m not going to

stand up here and tell you their home wasn’t burglarized. It’s clear it was. *** But as I also

mentioned yesterday, that – what this case is about is determining whether this man is not

responsible for burglarizing the house but for aiding or abetting another in the commission

of that burglary. ***”

{¶ 58} Defense counsel also argued:

{¶ 59} “*** [T]hey steal the property, they give it to me, and I know how to get rid

of it. He [Fair] fences property. Where’s the evidence that he participated in the stealing

of it? *** The Maneys were burglarized. He was found with the stuff. Convict. But

convict of what? The charge is complicity to convict burglary. That’s what.” 19

{¶ 60} “*** He had the stuff on him. He did. That’s why he ran. He had to

make his profit gone (sic). Does that mean to you that he burglarized their home? That he

aided and abetted others in burglarizing their home?

{¶ 61} “*** Yes, you can say that Mr. Fair had the property. Do you know how he

got the property? ***”

{¶ 62} Counsel emphasized that there was no physical evidence placing Fair inside

the Maneys’ home, there was no evidence that Fair assisted the people who went into the

home, and Detective Hill had testified that Fair said he was a “fence” for Benny and Mike,

who steal the property. Counsel repeatedly asked the jury, rhetorically, where the evidence

was that Mr. Fair aided and abetted in the burglary, and he argued that “[t]his is about

convicting the right person” and not about convicting Fair just because he was found with

the property.

{¶ 63} Upon review of the transcript, we find no prejudicial error with respect to

defense counsel’s closing argument. Assuming, for sake of argument, that the trial court

erred in precluding defense counsel from arguing another specific statutory violation,

defense counsel strongly argued that Fair was a “fence” and that his conduct was limited to

liquidating property that Benny and Mike had stolen. Counsel emphasized that the State

had failed to prove that Fair had aided and abetted the burglary, and that Fair should not be

punished for the burglary committed by others. In our view, defense counsel was able to

effectively argue that Fair’s conduct in possessing the property was distinguishable from

complicity to commit burglary.

{¶ 64} The third assignment of error is overruled. 20

V

{¶ 65} Fair’s fourth assignment of error states:

{¶ 66} “MR. FAIR’S CONVICTIONS FOR RECEIVING STOLEN PROPERTY

AND COMPLICITY TO BURGLARY SHOULD HAVE BEEN MERGED AT THE

CONVICTION LEVEL.”

{¶ 67} In his fourth assignment of error, Fair claims that his convictions for

complicity to commit burglary and receiving stolen property should have been merged,

rather than being merged only for purposes of sentencing, because he could not be convicted

both of stealing and receiving the same property. Fair relies upon Maumee v. Geiger

(1976),

, which held that receiving stolen property and theft were allied

offenses of similar import.

{¶ 68} Revised Code 2941.25, Ohio’s multiple count statute, provides:

{¶ 69} “(A) Where the same conduct by defendant can be construed to constitute two

or more allied offenses of similar import, the indictment or information may contain counts

for all such offenses, but the defendant may be convicted of only one.

{¶ 70} “(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment or

information may contain counts for all such offenses, and the defendant may be convicted of

all of them.”

{¶ 71} “R.C. 2941.25 codifies the double jeopardy protections in the federal and

Ohio constitutions, which prohibit courts from imposing cumulative or multiple 21

punishments for the same criminal conduct unless the legislature has expressed an intent to

impose them. R.C. 2941.25 expresses the legislature’s intent to prohibit multiple

convictions for offenses which are allied offenses of similar import per paragraph (A) of that

section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker,

,

, ¶22, citing State v. Rance,

,

, overruled on other grounds by State v. Johnson,

,

.

{¶ 72} Subsequent to sentencing in this case, the Ohio Supreme Court clarified the

process by which courts determine whether offenses are allied offenses of similar import.

Johnson, supra. The Johnson court overruled Rance “to the extent that it calls for a

comparison of statutory elements solely in the abstract under R.C. 2941.25.” Johnson at ¶44.

Now, “[w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id.

{¶ 73} Johnson states that “the intent of the General Assembly is controlling.” Id. at

¶46. “We determine the General Assembly’s intent by applying R.C. 2941.25, which

expressly instructs courts to consider the offenses at issue in light of the defendant’s

conduct.” Id. The trial court must determine prior to sentencing whether the offenses were

committed by the same conduct. The court no longer must perform any hypothetical or

abstract comparison of the offenses at issue in order to conclude that the offenses are subject

to merger. Id. at ¶47 “In determining whether offenses are allied offenses of similar

import under R.C. 2941.25(A), the question is whether it is possible to commit one offense

and commit the other with the same conduct, not whether it is possible to commit one 22

without committing the other. If the offenses correspond to such a degree that the conduct

of the defendant constituting commission of one offense constitutes commission of the

other, then the offenses are of similar import.” Id. at ¶48 (internal citation omitted).

{¶ 74} “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.’” Id. at ¶49 (citation omitted). “If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

will be merged.” Id. at ¶50. “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 ¶51.

{¶ 75} When two or more offenses must be merged as allied offenses of similar

import, the prosecutor must elect which offense it will pursue. State v. Harris,

,

; State v. Whitfield,

,

. “[A] trial court must merge the crimes into a single conviction and impose a sentence

that is appropriate for the offense chosen for sentencing.” State v. Damron, Ohio

St.3d ,

, citing State v. Brown,

,

, ¶41-43.

{¶ 76} At sentencing, the State conceded that Fair’s burglary and receiving stolen

property charges were allied offenses of similar import, but the prosecutor did not elect an

offense on which Fair should be sentenced. The trial court imposed a five-year prison term

for Count I, complicity to commit burglary, and a one year for receiving stolen property. 23

The court found that “those two charges arise out of the *** the same event and that the

receiving could be considered a lesser charge of the *** complicity to commit burglary, so

the Court says that those would run concurrent or merge. I believe they would merge. But

if they don’t, they run concurrent.” The court sentenced Fair to one year in prison for

assault on a peace officer, to run consecutively to the other counts.

{¶ 77} The court’s judgment entry differs somewhat from the sentence that was

orally imposed. The entry provides that Fair was sentenced to five years on Count 1

(complicity to commit burglary). As to receiving stolen property and assault on the peace

officer, the entry imposes “a term of one (1) year on counts #2 and 3 which merge into one

(1) year term, but shall be served Consecutively to count #1 for a term of (6) years of

imprisonment.”

{¶ 78} In light of the State’s concession to the trial court, we will assume, with the

facts before the court, that burglary and receiving stolen property are allied offenses of

similar import. Although the trial court also expressed its belief that the two offenses

would merge, the court imposed separate sentences for each of the offenses and “merged”

two of the sentences. The trial court, in essence, imposed concurrent sentences and, by

doing so, failed to properly merge the allied offenses. Damron at ¶17. Accordingly, we

must remand to the trial court for a new sentencing hearing.

{¶ 79} The Supreme Court has recently provided additional guidance to the trial

court as to its obligations upon remand, as follows:

{¶ 80} “A remand for a new sentencing hearing generally anticipates a de novo

sentencing hearing. R.C. 2929.19(A). However, a number of discretionary and mandatory 24

limitations may apply to narrow the scope of a particular resentencing hearing. For

example, the parties may stipulate to the sentencing court’s considering the record as it stood

at the first sentencing hearing. State v. Mathis,

,

,

. In a remand based only on an allied-offenses sentencing error, the guilty

verdicts underlying a defendant’s sentences remain the law of the case and are not subject to

review. Whitfield,

,

,

, at ¶26-27. Further,

only the sentences for the offenses that were affected by the appealed error are reviewed de

novo; the sentences for any offenses that were not affected by the appealed error are not

vacated and are not subject to review. [State v.] Saxon[,

,

,] at paragraph three of the syllabus.” State v. Wilson, Ohio St.3d

,

.

{¶ 81} The fourth assignment of error is sustained.

VI

{¶ 82} Fair’s convictions will be affirmed. Fair’s sentence will be reversed, and the

matter will be remanded for resentencing.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Kirsten A. Brandt Lynne M. Fleming Hon. Frances E. McGee