[Cite as State v. Lewis,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2012-L-074 - vs - :

RICCI R. LEWIS, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000736.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff- Appellee).

Paul A. Mancino, Jr., Mancino, Mancino & Mancino, 75 Public Square, Suite 1016, Cleveland, OH 44113-2098 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} This appeal is from the final judgment in a criminal proceeding before the

Lake County Court of Common Pleas. Following a jury trial, appellant, Ricci R. Lewis,

was found guilty on multiple counts of aggravated burglary and aggravated robbery, and

one count of felonious assault. He contends that his conviction cannot stand because

various prejudicial errors were committed at trial and during the sentencing hearing.

{¶2} This case concerns a home invasion at approximately 11:00 p.m. on the evening of April 5, 2011. The home is part of a duplex on Richmond Street in

Painesville, Ohio, and was being rented by Russell Perry and Shaquetta Page.

Shaquetta’s three minor children were also permanent residents in the home. In

addition, one of Russell’s minor daughters would occasionally spend the night there.

{¶3} Even though the couple’s home had two entranceways, the back door was

used as the primary means for entering the residence. The back door leads directly into

the kitchen. Upon exiting the kitchen and moving forward are the dining room and then

the living room. At one side of the living room is a staircase leading to the second floor,

where three bedrooms are located.

{¶4} On the evening at issue, Russell and Shaquetta had a late dinner with her

three children and one of Russell’s daughters. When the meal ended shortly before

11:00 p.m., Shaquetta and all four children went upstairs to prepare for bed. However,

Russell stayed downstairs to clean the kitchen. Near the end of this process, Russell

took the trash outside to a container near the back door.

{¶5} As Russell was re-entering the home and beginning to shut the back door,

two men pushed on the door and forced their way into the kitchen. Initially, the first man

pushed Russell backward with his hands. As Russell tried to resist, the second intruder

produced a small silver firearm and placed the barrel directly on Russell’s forehead. At

that time, the second man said directly to Russell: “[Y]ou know what it is, we want

everything, * * *.”

{¶6} Although Russell no longer tried to resist, the two intruders continued to

push him across the room until he fell to the floor by the refrigerator. During the course

of the confrontation, the two men struck Russell on his head a number of times, and he

2 sustained a number of scrapes and bruises on his face and skull.

{¶7} When Russell was finally subdued, he was lying on his stomach with his

face pressed on the floor. The first man sat on top of Russell’s torso and held his head

down. At first, Russell thought the first man was pressing the barrel of a firearm to the

back of his head; thus, he made no attempt to get up for a short period. While lying on

the floor, Russell saw the second man exit the kitchen and walk through the dining room

and living room.

{¶8} After going through the living room, the second intruder went up the stairs

and started down the hallway toward Shaquetta’s bedroom. As the man walked toward

her, Shaquetta was talking on her cell phone to her sister. Initially, Shaquetta believed

that the man entering her room was her brother; as a result, she told her sister goodbye

and “hung up” the phone. She then turned toward the second man and quickly realized

her mistake. However, before she could do anything, the second man again pulled out

the small firearm, placed it against Shaquetta’s head, and said that he was going to rob

her.

{¶9} Immediately after making the statement to Shaquetta, the second intruder

heard a police siren going off in the distance. In response, he grabbed the cell phone

from Shaquetta’s hands, ran over to her bedroom dresser, and momentarily looked for

something else to take. When he did not see anything, he ran into the hallway and went

down the stairs. After quickly checking upon the welfare of the four children, Shaquetta

followed the second man to the first floor.

{¶10} While the second man was upstairs, Russell realized that the first man did

not have a gun, but was instead forcing Russell’s head down with his knuckles. In light

3 of this, Russell began to resist again, and was able to throw the first intruder off. Upon

getting to his feet, Russell shoved the first man toward the back door, and was quickly

able to force him out the door. The first man then ran through the back yard and leaped

over a fence into a neighbor’s yard. Although Russell followed the first man outside and

saw him go over the fence, he did not try to chase him any further. Rather, he ran down

his driveway, intending to go across the road and use a phone in a local business to call

the police.

{¶11} After going downstairs, the second intruder ran to the kitchen and went out

the back door. Russell never saw the second man exit the home. However, Shaquetta

followed the second man out the back door and saw him leap over the fence on the side

of the yard. She then walked toward the street at the front of the home and met Russell

in the middle of the roadway. Since Russell’s daughter had used her cell phone to call

the police while the incident was still ongoing, the police arrived at the scene within five

minutes after the second intruder ran away.

{¶12} Neither of the intruders was apprehended the evening of the incident. In

speaking to the police upon their arrival at the scene, Russell stated that he previously

had seen the first intruder, i.e., the man who held him down on the kitchen floor, at

various places in the neighborhood, but could only recall that his first name was “Ricci.”

This name was not sufficient to enable the police to immediately identify the first man.

Regarding the separate intruder with the firearm, Shaquetta likewise told the police that

she recognized him from the neighborhood. Even though she also tried to provide a

first name for the second intruder during her initial statement to the police, that name

was incorrect, and it was not until a few days later that Shaquetta’s friends informed her

4 of the second man’s correct first name.

{¶13} Despite the fact that Shaquetta never saw the intruder who held Russell

on the kitchen floor, she had a general idea of who he was based upon Russell’s basic

description. Approximately three days after the incident, Shaquetta and Russell were at

a local tavern having drinks when Shaquetta saw the first intruder enter the bar. Upon

recognizing Shaquetta, the man came over to the couple and spoke directly to Russell.

Specifically, the man stated that Russell should not have contacted the police about the

incident, and that they could have settled the matter “in the streets.” When Russell did

not respond, the man left them and went to another area of the tavern.

{¶14} Once this confrontation was over, Shaquetta and Russell exited the tavern

and contacted the Painesville police. After meeting the police in the bar’s parking lot,

Shaquetta explained what had just occurred, and then accompanied an officer back into

the bar where she identified the man in question. Based upon this, the police escorted

the man outside and conducted a brief interview about the home invasion. Even though

the police did not arrest the man at the time, they were able to establish that the man

was Ricci R. Lewis, appellant.

{¶15} After an initial complaint was filed in the Painesville Municipal Court, the

county grand jury returned a seven-count indictment against appellant in late December

2011. These charges included two counts of aggravated burglary, a first-degree felony

under R.C. 2911.11(A), three counts of aggravated robbery, a first-degree felony under

R.C. 2911.01(A), one count of felonious assault, a second-degree felony under R.C.

2903.11(A), and one count of complicity to aggravated robbery, a first-degree felony

under R.C. 2923.02(A). In addition to the primary offense, each of the counts also had

5 a firearm specification, under which it was asserted that appellant displayed or used a

firearm while committing the underlying defense.

{¶16} Immediately prior to trial, the state dismissed the charge of complicity to

aggravated robbery. As a result, appellant was tried on the identical six charges

brought against his co-defendant, Carvell J. Fomby, who was identified as the “second

man” during the home invasion. Given that the charges against appellant and Fomby

were predicated upon the same facts, their trials were consolidated.

{¶17} After an initial delay of approximately 45 days, appellant was able to post

bond and was released during the majority of the pretrial period. Three weeks prior to

the scheduled date of his trial, appellant had another brief encounter with Shaquetta at

a second bar/tavern in Painesville. According to Shaquetta, appellant approached her

and indicated that he had read her prior testimony during a preliminary hearing before

the municipal court. Appellant then offered her money to drop the pending charges, and

also stated that there were “girls” in the neighborhood who were looking to assault her.

{¶18} Upon declaring appellant indigent, the trial court appointed counsel on his

behalf. After the case was pending for three months, the appointed attorney moved to

withdraw as counsel on the basis that appellant was not cooperating in his defense and

was not accepting sound legal advice. Without waiting for the state to respond, the trial

court overruled the motion to withdraw. Along the same lines, at the outset of his trial,

appellant personally requested the trial court to appoint him a new trial attorney for the

reason that he was not confident that his present counsel could provide adequate legal

representation. After hearing separate statements from the state, appellant himself, and

his present trial counsel, the trial court denied the pro se motion for new counsel.

6 {¶19} Appellant’s three-day jury trial was conducted in May 2012. Russell and

Shaquetta were the primary witnesses for the state. In relation to appellant’s role in the

home invasion, Russell testified that he was absolutely certain appellant was the person

who pushed the back door open, helped wrestle him to the kitchen floor, and then sat

upon him to keep him subdued. Additionally, both Russell and Shaquetta stated that a

firearm had been held to their heads during the course of the incident. At the close of

the evidence, the jury found appellant guilty on all six counts and firearm specifications.

{¶20} After the county probation department prepared a presentencing report,

the trial court held a separate sentencing hearing. First, concerning the two aggravated

burglary counts, the court concluded that these offenses had to be merged for purposes

of sentencing. Second, as to the remaining three counts relating solely to Russell, the

trial court similarly held that two of the aggravated robbery counts and the sole felonious

assault count would be merged. Accordingly, appellant was only sentenced on a single

count of aggravated burglary, two counts of aggravated robbery, and two of the firearm

specifications. In addition to imposing two three-year terms for the firearm

specifications, the court ordered appellant to serve two concurrent terms of eight years

on the aggravated robbery counts, and a six-year term on the remaining burglary count,

to be served consecutively to the “aggravated robbery” terms, for an aggregate term of

twenty years.

{¶21} In appealing his entire conviction and sentence, appellant has asserted

twenty assignments of error for review:

{¶22} “[1.] Defendant was denied his Sixth Amendment right to counsel when

the court refused to allow court-appointed counsel to withdraw because of a breakdown

7 in the attorney-client relationship.

{¶23} “[2.] Defendant was denied due process of law when the court refused to

grant a continuance to defendant to obtain counsel after defendant was remanded to jail

because of a failure to appear at a hearing before a different judge for which he had no

notice.

{¶24} “[3.] Defendant was denied due process of law when the court amended

the indictment as to Ricci Lewis.

{¶25} “[4.] Defendant was denied due process of law when the court instructed

that a meeting between defendant and Shaquetta Page gave rise to an inference of

consciousness of guilt.

{¶26} “[5.] Defendant was denied due process of law when the court improperly

singled out the ‘one witness’ rule.

{¶27} “[6.] Defendant was denied due process of law when the court improperly

referenced defendant as an accomplice.

{¶28} “[7.] Defendant was denied due process of law when the court lessened

the burden of proof by instructing on the gist of the offense.

{¶29} “[8.] Defendant was denied due process of law when the court failed to

inform the jury that it must unanimously agree on theory in order to find defendant guilty.

{¶30} “[9.] Defendant was denied due process of law when the court imposed

consecutive sentences which were contrary to law.

{¶31} “[10.] Defendant was denied due process of law when the court rotely

recited the statutory criteria for imposing consecutive sentences.

{¶32} “[11.] Defendant was denied due process of law and subjected to

8 unconstitutional multiple punishments when he was set to be sentenced on two firearm

specifications arising out of the same transaction.

{¶33} “[12.] Defendant was denied due process of law and equal protection of

the law when he received a greater sentence than the co-defendant.

{¶34} “[13.] Defendant was subjected to unconstitutional multiple punishments

when the court failed to merge all offenses into one offense of aggravated burglary.

{¶35} “[14.] Defendant was denied due process of law when the court sentenced

defendant for merged offenses.

{¶36} “[15.] Defendant was denied due process of law when he was convicted

and sentenced under a multiplicitious (sic) indictment.

{¶37} “[16.] Defendant was denied due process of law when the court overruled

his motion for judgment of acquittal.

{¶38} “[17.] Defendant is entitled to a new trial as the verdicts are against the

manifest weight of the evidence.

{¶39} “[18.] Defendant was denied due process of law when the court improperly

imposed court costs.

{¶40} “[19.] Defendant was denied due process of law when this case was

improperly transferred from the original assigned judge to a new judge.

{¶41} “[20.] Defendant was denied effective assistance of counsel.”

{¶42} Since appellant’s first two assignments raise interrelated issues, they will

be addressed together. Under both assignments, he contends that the trial court erred

in requiring his original court-appointed counsel to represent him at trial. First, appellant

maintains that his pro se motion for the appointment of new counsel should have been

9 granted because he was able to show that there had been a breakdown in his ability to

communicate with his trial attorney. Second, he submits that the trial court failed to give

proper consideration to counsel’s written request to withdraw from the case.

{¶43} As previously noted, trial counsel’s pretrial motion to withdraw was based

upon his perceived inability to communicate with his client. In this regard, counsel

stated that he not only found it difficult to physically locate appellant to schedule

meetings, but he could not get appellant to cooperate in the formulation of trial strategy.

Similarly, appellant’s oral request for a continuance and appointment of new counsel

was also based upon an allegation of a lack of communication. Specifically, he

asserted that trial counsel had failed to keep him properly informed as to when he was

required to appear before the trial court. In addition, appellant asserted that he did not

have full confidence in his counsel because counsel failed to understand the

significance of a misstatement in a police report.

{¶44} In reviewing a decision on a motion for a change of appointed counsel, an

appellate court will only reverse the trial court if there has been an abuse of discretion.

State v. Sanders, 11th Dist. Lake No. 2007-L-062,

. In this exact

context, an abuse of discretion connotes an attitude on the part of the trial court that is

arbitrary, unreasonable or unconscionable.

{¶45} As to the standard to be employed in ruling upon a motion for a change of

appointed counsel, this court has stated:

{¶46} “As a general proposition, an indigent criminal defendant does not have a

constitutional right to choose the attorney who will represent him at the expense of the

state; rather, he is only entitled to competent legal representation. State v. Horn, 6th

10 Dist. No. OT-03-016,

. As a result, the request of a defendant to

discharge his court-appointed counsel will be granted only if he can ‘show a breakdown

in the attorney-client relationship of such a magnitude as to jeopardize the defendant’s

right to effective assistance of counsel.’ State v. Coleman (1988),

,

* * *, paragraph four of the syllabus. See, also, State v. Henness (1997),

,

, * * *.

{¶47} “In applying the foregoing basic standard, the courts of this state have

recognized three examples of good cause which would warrant the discharge of court-

appointed counsel: (1) a conflict of interest; (2) a complete breakdown of

communication; and (3) an irreconcilable conflict which could cause an apparent unjust

result. Horn,

, quoting State v. Blankenship (1995),

, * * *. In light of the nature of the three examples, it has been further

held that the substitution of counsel should be allowed only if extreme circumstances

exist. State v. Glasure (1999),

, * * *.

{¶48} “In regard to a possible breakdown of the attorney-client relationship due

to a lack of communication, the Supreme Court of Ohio has expressly said that the Sixth

Amendment right to counsel was not intended to guarantee that a criminal defendant

will have a ‘rapport’ with his attorney. Henness, 70 Ohio St.3d at 65, citing Morris v.

Slappy (1983),

, * * *. Accordingly, the existence of hostility or a personal

conflict between the attorney and the defendant does not constitute a total breakdown

so long as it does not inhibit the attorney from both preparing and presenting a

competent defense. State v. Meridy, 12th Dist. No. CA2003-11-091,

;

State v. Mayes, 4th Dist. No. 03CA9,

. Moreover, the lack of

11 communication must be permanent in nature before a finding of a complete breakdown

can be made. State v. Evans,

,

, at ¶32, * * *.

Finally, a dispute over the trial tactics or strategy of the attorney is not sufficient to

establish the requisite breakdown. Id.” State v. Jackson, 11th Dist. Trumbull No. 2004-

T-0089,

.

{¶49} In this case, appellant initially argued before the trial court that he wanted

to discharge his court-appointed counsel because he had sufficient funding to hire his

own private attorney. In support of this point, he told the trial court that he had already

contacted a specific attorney and had a preliminary discussion about his case. Yet, the

trial record shows that, as of the first day of appellant’s trial, no new counsel had made

an appearance on his behalf. This was despite the fact that appellant was released on

bond approximately three months before the date of his trial, and thus had considerable

time in which to hire new counsel. In light of this, the trial court could justifiably find that

appellant was still indigent and had not been able to accumulate enough funding to hire

his own counsel.

{¶50} As to the alleged breakdown of communication between appellant and his

court-appointed counsel, appellant told the trial court that, even though he had given his

cell phone number to counsel when he was released on bond, counsel had not given

him timely notice of upcoming events in this case. According to appellant, this was the

reason he had not been present at a mandatory court hearing, leading to the issuance

of a warrant for his arrest. In response, trial counsel indicated that, despite the fact that

he had tried two distinct phone numbers and had left messages for appellant, it always

was extremely difficult to contact his client. Trial counsel also stated that whenever he

12 was able to meet with appellant, his client was argumentative and would not accept any

legal advice.

{¶51} In denying appellant’s motion for a change of counsel, the trial court noted

that, as a condition of appellant’s bond, he was specifically required to keep in contact

with his trial counsel. Based upon this and the statements of trial counsel, the trial court

could justifiably conclude that the lack of communication between the attorney and his

client was solely attributable to appellant, and that appellant’s actions were simply a

means of delaying the beginning of his trial while he was out on bail. To this extent, the

statements before the trial court warranted the conclusion that there had actually been

no breakdown of communication due to incompatibility, but solely because appellant’s

desire to obtain a third continuance of his trial.

{¶52} Regarding appellant’s assertion that he was uncomfortable with the legal

adequacy of trial counsel’s representation, appellant could only cite one example of

counsel’s alleged failure to protect his rights. He stated that, in reviewing a copy of a

police report provided to him by trial counsel, he noticed that the report stated that

Russell and Shaquetta had described their assailants in the home invasion as both

having facial tattoos. Supposedly, when appellant brought to his trial counsel’s attention

that he did not have any tattoos on his face, counsel admitted that he had not noted the

statement in the police report.

{¶53} As to this point, during the trial proceedings, there was no dispute

concerning appellant’s identity as one of the two men who entered Russell’s home on

the night in question. Thus, it cannot be said that counsel was unable to discern an

important issue in the case. To this extent, appellant’s assertions before the trial court

13 were not sufficient to demonstrate that trial counsel had failed to provide adequate

representation for appellant, especially in light of the fact that appellant was not

assisting in his own defense.

{¶54} As a separate issue, appellant contends that his right to due process was

violated when the trial court overruled trial counsel’s motion to withdraw without holding

an oral hearing on the matter. Even though no hearing was conducted at the time

counsel’s motion was filed, the trial court held a full hearing on the “representation”

issue at the time appellant made his pro se motion at the beginning of his trial. During

that hearing, both appellant and counsel were accorded a full opportunity to state the

grounds for their respective motions. Accordingly, any initial procedural error by the trial

court was not ultimately prejudicial to appellant.

{¶55} Considered as a whole, the record does not indicate the existence of an

extreme situation in which appellant and trial counsel were no longer able to

communicate as a result of a serious disagreement regarding the type of defense which

should be used at trial. Instead, the lack of full communication was due to appellant’s

choice not to cooperate with his court-appointed counsel. Under such circumstances,

the trial court did not abuse its sound discretion in refusing to grant a continuance or not

appointing new trial counsel for appellant. Appellant’s first and second assignments of

error do not have merit.

{¶56} Under his third assignment, appellant maintains the trial court improperly

amended the indictment by not instructing the jury on the third count of the indictment.

He contends that the lack of reference to the third count rendered the remainder of the

jury instructions so confusing that he was denied a fair trial.

14 {¶57} Prior to trial, the state orally moved to dismiss the third count of the

indictment against appellant, and the trial court granted this motion. As a result, the

remaining counts in appellant’s indictment corresponded to the charges in the co-

defendant’s indictment. Therefore, there is no merit to appellant’s contention that the

jury instructions were confusing to the jury, or that the trial court improperly amended

the indictment.

{¶58} As part of this assignment, appellant claims that the trial court erred in not

instructing the jury on the elements of the underlying offenses in the various charges of

aggravated burglary and aggravated robbery. Specifically, he submits that the court

was obligated to define the offenses of theft, robbery, and assault. But, in addressing

this issue in relation to the crime of burglary, the Supreme Court of Ohio has held that

jury instructions covering the underlying offenses of such a crime is not necessary

because the underlying offenses are not viewed as actual elements of the crime. State

v. Gardner,

,

, ¶71. Accordingly, the jury

instructions were not legally flawed. Appellant’s third assignment is not well taken.

{¶59} Under his next assignment, appellant argues that the trial court erred in

allowing Shaquetta to testify as to the encounter she had with appellant approximately

three weeks prior to trial. As previously noted, Shaquetta testified that, in confronting

her alone in a local bar, appellant offered to pay her money to dropped the charges in

the pending criminal case. Although appellant’s trial counsel objected to the testimony,

the trial court admitted it as evidence of a guilty conscious. Appellant contends that her

testimony should have been excluded as evidence of a prior bad act under Evid.R.

404(B).

15 {¶60} Under Ohio law, it is well-settled that “[e]vidence of conduct designed to

impede or prevent a witness from testifying is admissible as showing consciousness of

guilt.” State v. Williams,

,

(1997). Appellant’s

conduct shows consciousness of guilt.

{¶61} As the trial court acted in compliance with the governing case law when it

allowed Shaquetta’s testimony and then instructed as to the relevancy of the evidence,

appellant’s fourth assignment is without merit.

{¶62} Under his fifth assignment, appellant asserts that he was denied a fair trial

because, in instructing the jury, the trial court placed too much emphasis upon a specific

rule governing the determination of witness credibility. That is, he argues that the court

should not have expressly told the jury that proof of a specific fact can be based upon

the testimony of one witness. It is appellant’s position that, because his conviction was

predicated solely upon the testimony of Russell Perry, the “one witness” instruction had

the effect of placing undue importance on Russell’s testimony.

{¶63} As the state correctly notes, the instruction given by the trial court was

consistent with the standard instruction for the “one witness” rule. See Ohio Jury

Instructions, Section CR409.05, at 73, (2012). Furthermore, in providing the disputed

instruction, the trial court did not make any express reference to Russell or Shaquetta,

thereby indicating that the rule could be applied to either. Rather, the rule was set forth

in a group of standard instructions regarding the role of the jury in judging witness

credibility.

{¶64} Except for Shaquetta’s testimony concerning appellant’s alleged offer to

pay her and Russell off, the state’s case against appellant was predicated entirely upon

16 Russell’s testimony. Thus, the disputed instruction was appropriate; i.e., the jury

needed to know that a finding of guilt could be based upon the testimony of one

witness. In addition, the instruction was not stated in such way as to give it any greater

weight than the other “credibility” instructions.

{¶65} Therefore, appellant’s fifth assignment is not well taken.

{¶66} Under his sixth assignment, appellant maintains that he was denied a fair

trial in light of certain statements the trial court made to the jury as part of its preliminary

instructions regarding the consideration of the evidence. Specifically, he notes that the

court informed the jury that even if an accomplice did not possess a firearm during the

execution of a crime, he could still be found guilty of a firearm specification if the main

offender had a firearm. Appellant asserts this instruction placed too much emphasis on

his role as an accomplice in the underlying incident.

{¶67} The decision to employ a particular jury instruction in a given criminal case

lies within the sound discretion of the trial court, and cannot form the grounds to reverse

a conviction unless an abuse of discretion took place. State v. Nichols, 11th Dist. Lake

No. 2005-L-017,

. As a general proposition, a jury instruction is

proper if it sets forth a plain and unambiguous statement of the law that is pertinent to

the case in light of the pleadings and the evidence presented at trial. Id. at ¶30.

{¶68} The disputed instruction concerning complicity as to a firearm specification

was clearly relevant to appellant’s role in the home invasion and set forth a proper

statement of the governing case law. In State v. Fitzgerald, 11th Dist. Lake No. 2003-L-

084,

, this court held that “where the state proves beyond a

reasonable doubt that a party acted in complicity to aggravated robbery and the

17 principal offenders possessed firearms, that party may be ‘prosecuted and punished as

if he were a principal offender.’” To the extent that it was necessary for the jury to know

that appellant could be found guilty under the firearm specifications even if he did not

have actual possession of the handgun during the incident, the trial court’s preliminary

“complicity” instruction was a correct statement of law. Accordingly, appellant’s sixth

assignment is without merit.

{¶69} Under his seventh assignment, appellant submits that the trial court erred

in instructing the jury on the mens rea of “purposefully.” This argument is based upon

the following sentence from the jury instructions:

{¶70} “When the central idea, essence, or gist of the offense is a prohibition

against or forbidding of conduct of a certain nature, a person acts purposely if his

specific intention was to engage in conduct of that nature, regardless of what he may

have intended to accomplish by his conduct.”

{¶71} Citing the “gist of the offense” language, appellant asserts the instruction

was needlessly confusing and had the effect of lessening the burden of proof the state

had to carry in order to establish the mens rea.

{¶72} In support of his argument, appellant relies upon the decision of the Ohio

Supreme Court in State v. Wilson,

,

(1996). In

Wilson, the disputed instruction provided:

{¶73} “‘A person acts purposely, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, if it is his specific intention to engage in conduct of that nature.’” Id.

at 392.

18 {¶74} In analyzing the foregoing instruction, the Wilson court first concluded that

the inclusion of the “gist of the offense” language did create some confusion regarding

what constituted “purposeful” behavior. Id., at 393. However, upon reviewing the “gist”

language in the context of the entire instruction, the Wilson court held that no plain error

had occurred because the entire instruction had been adequate to properly define the

element of specific intent. Id.

{¶75} In applying the Wilson precedent, the Eighth Appellate District has held

that the trial court’s use of the “gist of the offense” language does not have the effect of

diluting the state’s burden of proof when the term “purposefully” is otherwise properly

defined in the instructions. State v. Hamilton, 8th Dist. Cuyahoga No 86520, 2006-

Ohio-1949, ¶46.

{¶76} In this case, the trial court used the “gist” language twice in its instructions

to the jury. In the first instance, the “gist” language was included as part of the following

discussion of the definition of purposeful behavior:

{¶77} “A person acts purposely when it is his specific intention to cause a certain

result. It must be established in this case that at the time in question there was present

in the mind of the Defendant a specific intention to commit a criminal offense in the

occupied structure. When the central idea, essence, or gist of the offense is a

prohibition against or forbidding of conduct of a certain nature, a person acts purposely

if his specific intention was to engage in conduct of that nature, regardless of what he

may have intended to accomplish by his conduct. Purpose is a decision of the mind to

do an act with a conscious objective of producing a specific result or engaging in

specific conduct. To do an act purposely is to do it intentionally and not accidentally.

19 Purpose and intent mean the same thing.”

{¶78} When the trial court used the “gist” language the second time, it was

included in a discussion which was virtually identical to the foregoing quote.

{¶79} The term “purposely” is defined in R.C 2901.22(A):

{¶80} “(A) A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.”

{¶81} When considered as a whole, the definition of the term “purposely” in the

trial court’s jury instructions was sufficiently consistent with the statutory definition to

adequately instruct the jury. Therefore, the use of the “gist” language did not have the

effect of diluting the state’s burden of proof on the “purposely” element. Hamilton. For

this reason, appellant’s seventh assignment is not well taken.

{¶82} Under his next assignment, appellant maintains that the trial court erred

when it failed to instruct the jury that it was required to reach a unanimous verdict as to

whether he had been the principal offender or an aider and abettor in the commission of

the various offenses. He states that complicity constitutes a separate theory regarding

the role he played in the incident, and that the jury had to agree as to the nature of that

role before he could be found guilty.

{¶83} Under Ohio law, the legal distinction between principal offender and aider

and abettor is not viewed as significant. R.C. 2923.03(F) provides that a person who is

guilty of complicity “shall be prosecuted and punished as if he were a principal offender.

A charge of complicity may be stated in terms of this section, or in terms of the principal

20 offender.”

{¶84} In light of the foregoing, the failure to require the jury to distinguish on the

verdict forms whether the defendant was found guilty as an aider and abettor is not a

plain error warranting the reversal of a conviction. See State v. Beshara, 7th Dist.

Mahoning No. 07 MA 37,

, ¶77. The same logic would likewise apply to

any alleged error in the trial court’s instructions as to the need for a unanimous verdict

regarding the role of appellant in the commission of the underlying offenses.

{¶85} In this case, appellant’s trial counsel never objected to the trial court’s jury

instructions concerning whether he had acted as an aider and abettor; hence, a plain

error can only be found when, inter alia, the outcome of the trial was adversely affected.

Id. at ¶75. Here, the state’s evidence was overwhelming that appellant had acted as a

principal offender in relation to the offenses against Russell Perry, and an aider and

abettor as to those offenses against Shaquetta Page. That is, if the jury believed the

testimony of Russell and Shaquetta, there would be no factual dispute concerning the

role appellant played in each of the three remaining charges. Therefore, since appellant

was not prejudiced by any alleged error pertaining to the complicity jury instructions, his

eighth assignment of error lacks merit.

{¶86} Under his ninth assignment, appellant claims that the trial court’s decision

to impose consecutive prison terms in regard to the aggravated burglary count and the

two aggravated robbery counts was contrary to law. Citing R.C. 2929.14(E), he asserts

that the trial court only had the statutory authority to impose consecutive terms if he was

convicted of a violent sex offense, a designated homicide, an assault, or a kidnapping

offense. According to appellant, since aggravated burglary and aggravated robbery are

21 not cited in R.C. 2929.14(E), he could only be required to serve concurrent terms.

{¶87} In responding to this assignment, the state aptly notes that R.C. Chapter

2929 sets forth a number of different standards governing the imposition of consecutive

terms by a trial court. The state further notes that the primary standard for consecutive

terms is delineated in R.C.2929.14(C)(4):

{¶88} “(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

{¶89} “* * *

{¶90} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.

{¶91} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

{¶92} Although the trial court in this case did not expressly refer to the foregoing

standard during the sentencing hearing, statements made by the court at that hearing

plainly shows that the decision to impose consecutive prison terms was predicated upon

22 R.C. 2929.14(C)(4). Specifically, after the trial court allowed appellant and the co-

defendant to address the issue of sentencing, it made the following findings as to both

of them:

{¶93} “The Court determines that consecutive sentences are called for here, not

only because of the firearm specifications, which are mandatory consecutive sentences,

but also as to the underlying crimes. The Court believes that consecutive sentences

are necessary to protect the public and punish the offenders. Consecutive sentences

would not be disproportionate to the conduct and to the danger the offenders pose. The

Court finds that the harm was so great or unusual that a single term does not

adequately reflect the seriousness of the conduct and that the offenders’ criminal

history, particularly as to the Defendant Ricci Lewis shows that consecutive terms are

needed to protect the public.”

{¶94} The trial court clearly made the requisite findings to impose consecutive

prison terms under R.C. 2929.14(C)(4). In contesting the legality of his sentence before

this court, appellant has not challenged whether those findings were supported. Hence,

since the decision to impose consecutive sentences was made in accordance with the

governing statutory law, appellant’s ninth assignment lacks merit.

{¶95} Appellant’s tenth assignment also raises a challenge to the imposition of

consecutive prison terms on the remaining underlying offenses. He asserts that the trial

court never made any specific factual findings that justified consecutive terms. Instead,

according to him, the court merely made a rote statement of the statutory criteria without

providing a substantive discussion.

{¶96} In making this argument, appellant does not reference the standard for the

23 imposition of consecutive sentences under R.C. 2929.14(C)(4). Rather, his argument is

predicated entirely upon the following statement of the trial court during the sentencing

hearing:

{¶97} “The Court determines that there was a separate animus in the

commission of the robbery and the burglary. The burglary could have been committed

entirely without committing an aggravated robbery. And that once the individual

invaded this household, forced their way in, they immediately took control of the

situation by committing an aggravated robbery with firearms. And that that’s an

additional reason why this Court believes consecutive sentences are absolutely

necessary here.” (Emphasis added.)

{¶98} As previously noted in our discussion of appellant’s ninth assignment, as

part of its sentencing analysis earlier in the sentencing hearing, the trial court had made

express factual findings regarding the criteria for consecutive prison terms under R.C.

2929.14(C)(4). Thus, in making the italicized statement at the end of the foregoing

quote, the court was not stating its entire justification for consecutive terms. Instead, as

the court readily indicated, it was merely providing an additional reason in support of its

decision on the “consecutive terms” issue.

{¶99} Taken as a whole, there is nothing to establish that the trial court failed to

consider the governing statutory criteria prior to deciding to impose consecutive prison

terms in relation to the remaining aggravated burglary count and the two aggravated

robbery counts. For this reason, appellant’s tenth assignment does not have merit.

{¶100} Under his eleventh assignment, appellant submits that the trial court erred

in imposing two three-year terms under two of the firearm specifications. According to

24 him, the statutory provision governing the imposition of sentence for such specifications

only allowed the trial court to order one three-year term under one specification. Citing

R.C. 2929.14(B)(1)(b), he argues that multiple three-year terms are impermissible when

all of the firearm specifications were committed as part of one continuous transaction.

{¶101} Each of the six firearm specifications against appellant was brought under

R.C. 2941.415, and essentially alleged that a firearm had been displayed or brandished

during the commission of underlying felony offense. R.C. 2929.14(B)(1)(a)(ii) provides

that a three-year term can be imposed when the criminal defendant is found guilty of a

firearm specification under R.C. 2941.415.

{¶102} As to the imposition of multiple three-year terms for firearm specifications,

R.C. 2929.14(B)(1)(b) generally states that multiple terms are not permissible when the

underlying felonies were “committed as part of the same act or transaction.” However,

R.C. 2929.14(B)(1)b) also expressly provides that an exception to the foregoing general

rule is set forth in division (B)(1)(g) of the statute:

{¶103} “(g) If an offender is convicted of or pleads guilty to two or more felonies, if

one or more of those felonies is aggravated murder, murder, attempted aggravated

murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the

offender is convicted of or pleads guilty to a specification of the type described under

division (B)(1)(a) of this section in connection with two or more of the felonies, the

sentencing court shall impose on the offender the prison term specified under division

(B)(1)(a) of this section for each of the two most serious specifications of which the

offender is convicted or to which the offender pleads guilty and, in its discretion, also

may impose on the offender the prison term specified under that division for any or all of

25 the remaining specifications.”

{¶104} Appellant was convicted of two counts of aggravated robbery, one as to

Russell and one as to Shaquetta. Given that aggravated robbery is one of the specific

felonies listed in R.C. 2929.14(B)(1)(g), the “same act or transaction” rule under division

(B)(1)(b) was inapplicable in this instance. Instead, the trial court was required to follow

the exception in division (B)(1)(g), which expressly mandates that a separate prison

term be imposed for each of the two most serious firearm specifications. To this extent,

because each of the two remaining aggravated robbery counts contained firearm

specifications of which appellant was convicted, the trial court simply had no discretion

in imposing two three-year terms for the specifications. Therefore, appellant’s eleventh

assignment is not well-taken.

{¶105} Under his twelfth assignment, appellant claims that the trial court violated

his constitutional right to equal protection by imposing an aggregate sentence which is

longer than the total sentence given to his co-defendant, Carvell Fomby. Specifically,

he notes that he was ordered to serve an aggregate term of twenty years, while Fomby

is only required to serve seventeen years. Appellant submits that this result was unjust

because it was Fomby who wielded the firearm during the alleged incident.

{¶106} R.C. 2929.11(B) expressly requires that Ohio’s sentencing guidelines are

to be applied consistently by trial courts. In relation to the goal of consistency, “[w]e

have held that sentencing consistency is not derived from the trial court’s comparison of

the current case to other sentences given to similar offenders for similar offenses. * * *

Rather, it is the trial court’s proper application of the statutory sentencing guidelines that

ensures consistency. * * * Thus, in order to show a sentence is inconsistent, a

26 defendant must show the trial court failed to properly consider the statutory factors and

guidelines.” State v. Greitzer, 11th Dist. Portage No. 2006-P-0090,

.

{¶107} In summarizing the guidelines for felony sentencing under Ohio’s statutory

scheme, this court has stated:

{¶108} “R.C. 2929.11(A) provides that a trial court that sentences an offender for

a felony conviction must be guided by the ‘overriding purposes of felony sentencing.’

Those purposes are to ‘protect the public from future crimes by the offender and others

and to punish the offender.’ R.C. 2929.11(B) provides that a felony sentence must be

reasonably calculated to achieve the purposes set forth under R.C. 2929.11(A),

commensurate with and not demeaning to the seriousness of the crime and its impact

on the victim, and consistent with sentences imposed for similar crimes committed by

similar offenders. Finally, R.C. 2929.12 sets forth factors concerning the seriousness of

the offense and recidivism factors.” State v. Cross, 11th Dist. Lake No. 2006-L-135,

2007- Ohio-3847, ¶23.

{¶109} The trial court’s decision to give appellant a longer aggregate sentence

was clearly based upon recidivism factors. During the sentencing hearing, the state

established that appellant had a substantial criminal record which included more than

ten previous convictions. Given that appellant’s past record was significantly worse

than that of the co-defendant, the trial court could reasonably conclude that appellant

posed a greater risk to the general public, and thus should be incarcerated for a longer

time period.

{¶110} Taken as a whole, the decision to impose three additional years of

27 incarceration was predicated upon a proper application of the statutory sentencing

factors. Therefore, since appellant’s right to equal protection of the law was not

violated, his twelfth assignment is not well-taken.

{¶111} Under his thirteenth assignment, appellant asserts that the trial court erred

in not merging the two remaining counts of aggravated robbery into the sole remaining

count of aggravated burglary. Without addressing the question of whether foregoing

crimes are allied offenses of similar import, appellant maintains that separate sentences

could not be imposed for all three remaining offenses because the evidence established

that the aggravated burglary and the two aggravated robberies were committed as part

of one continuous criminal act.

{¶112} The legal effect of a defendant’s conviction on multiple crimes is governed

by R.C. 2941.25:

{¶113} “(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.

{¶114} “(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.”

{¶115} In its most recent pronouncement on the “allied offenses” issue, a plurality

of the Supreme Court of Ohio summarized its general application of R.C. 2941.25:

{¶116} “In determining whether offenses are allied offenses of similar import

28 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. * * *. If the offenses correspond to such a

degree that the conduct of the defendant constituting the commission of one offense

constitutes commission of the other, then the offenses are of similar import.

{¶117} “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.’ * * *.

{¶118} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶119} “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.” (Citations omitted and emphasis sic.)

State v. Johnson,

,

.

{¶120} Although the foregoing analysis was only followed by a plurality of the

Supreme Court, this court expressly adopted the Johnson analysis in State v. Muncy,

11th Dist. Ashtabula No. 2011-A-0066,

.

{¶121} At the outset of our analysis in this case, it must be noted that appellant

was only sentenced on the first, second and fourth counts of the indictment, as

amended after the state dismissed the charge of complicity to aggravated robbery.

Consistent with the trial court’s instructions to the jury, the fourth count of the indictment

charged appellant with aggravated robbery pertaining solely to Shaquetta. In contrast,

the first and second counts of the indictment, under which appellant was charged with

29 aggravated burglary and aggravated robbery, respectively, related solely to Russell.

{¶122} When the same offense is committed against different victims during the

same course of conduct, there is a separate animus as to each victim; therefore, under

such circumstances, the multiple offenses are not deemed “allied” for purposes of R.C.

2941.25, and a separate sentence can be imposed for each offense. State v. Chaney,

8th Dist. Cuyahoga No. 97872,

, ¶26-28. In light of this, the aggravated

robbery count as to Shaquetta could never be merged with either of the remaining two

counts as to Russell. Accordingly, our analysis under this assignment must focus upon

whether the trial court should have merged the two “Russell” counts together. As part of

its oral discussion during the sentencing hearing, the trial court determined that the

aggravated burglary charge under count one could not be merged with the remaining

aggravated robbery count as to Russell because appellant had a separate animus for

each offense.

{¶123} Under the first count, appellant was charged with aggravated burglary

under R.C. 2911.11(A)(1), which provides:

{¶124} “(A) No person, by force, stealth, or deception, shall trespass in an

occupied structure * * *, when another person other than an accomplice of the offender

is present, with purpose to commit in the structure * * * any criminal offense, if any of the

following apply:

{¶125} “(1) The offender inflicts, or attempts or threatens to inflict physical harm

on another; * * *.”

{¶126} Under the second count of the indictment, appellant was charged with

aggravated robbery pursuant to R.C. 2911.01(A)(1), which states:

30 {¶127} “(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:

{¶128} “(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; * * *.”

{¶129} It is possible to commit aggravated burglary and aggravated robbery with

the same conduct. However, a trial court can still impose separate prison terms for the

two offenses if, pursuant to R.C. 2941.25(B), the crimes were not committed by the

same conduct. The two offenses are allied and must be merged for sentencing only

when “the offenses were committed by the same conduct, i.e., ‘a single act, committed

with a single state of mind.’” Johnson,

, quoting State v. Brown,

,

, ¶50.

{¶130} The remaining aggravated robbery count relating to Russell was based

upon the allegation that the co-defendant, Carvell Fomby, had a deadly weapon in his

possession and displayed or brandished it. Fomby first displayed the firearm when he

placed it on Russell’s head immediately after the initial intrusion into the home. It was

also at that point that Fomby told Russell that he and appellant wanted “everything”

Russell had, thereby stating the intent to commit a theft offense against him. That

conduct alone, in which appellant was complicit, satisfied all elements of aggravated

robbery under R.C. 2911.01(A)(1).

{¶131} Under R.C. 2911.11(A)(1), the aggravated burglary as to Russell was

fulfilled when appellant inflicted physical harm to Russell in the ensuing scuffle ending

31 by the refrigerator. Given that the physical harm element for aggravated burglary was

committed by additional subsequent conduct that was not needed to prove the

aggravated robbery, the counts do not merge.

{¶132} In other words, separate sentences are permitted for the two offenses

against Russell because the commission of the two crimes were not based upon the

exact same conduct; i.e., an additional act was performed which, although unnecessary

for the commission of aggravated robbery, completed the offense of aggravated

burglary. If a separate penalty could not be imposed for the aggravated burglary, it

would essentially mean that appellant and Formby would be free to inflict physical harm

upon Russell without having to face additional penalty. Such a result was clearly not

intended by the General Assembly in enacting R.C. 2941.25(B). See State v. Frazier,

(1979); State v. Monroe,

,

, ¶68;

State v. ONeil, 11th Dist. Portage No. 2010-P-0041,

, ¶46-51.

{¶133} The trial court correctly imposed separate sentences regarding the

aggravated burglary count and the aggravated robbery count relating to Russell Perry,

as well as the separate aggravated robbery count pertaining to Shaquetta Page. Thus,

appellant’s thirteenth assignment lacks merit.

{¶134} Under his fourteenth assignment, appellant states that the trial court erred

in imposing two concurrent eight-year terms on the two remaining counts of aggravated

robbery. Essentially, he maintains that the two aggravated robbery counts should have

been merged for purposes of sentencing because, under the facts of this case, he could

not be convicted of both offenses. Appellant submits that the imposition of concurrent

terms is impermissible when separate convictions were not feasible.

32 {¶135} In instructing the jury on these two counts, the trial court indicated that the

first charge of aggravated robbery, as set forth in the second count of the indictment,

related solely to Russell, and that the other remaining charge of aggravated robbery, as

set forth under the fourth count of the indictment, pertained solely to Shaquetta.

Furthermore, there was sufficient evidence to prove that appellant aided and abetted his

co-defendant in the commission of separate offenses of aggravated robbery in relation

to both victims.

{¶136} Since there were separate victims as to each of the two remaining counts

of aggravated robbery, those charges were not “allied” offenses that had to be merged

under R.C. 2941.25. Chaney,

, ¶26-28. Thus, because appellant could

be convicted and sentenced on both counts, the imposition of concurrent prison terms

was permissible. Appellant’s fourteenth assignment is without merit.

{¶137} Under his next assignment, appellant contends that his entire conviction

must be reversed because the indictment against him was multiplicitous in nature. He

asserts that the six counts in the indictment were needlessly repetitive because Russell

Perry was the sole victim under the charges.

{¶138} “An indictment is multiplicitious (sic) where it charges a single offense in

multiple counts. See e.g. State v. Ross, 9th Dist. No. 09CA009742,

. ‘[T]he vice of a multiplicitious (sic) indictment lies in the possibility of multiple

punishments for a single offense in violation of the cumulative punishment branch of the

Double Jeopardy Clause of the Sixth Amendment.’ State v. Childs,

,

, * * * (2000). Even if counts are multiplicitious (sic), however,

merging them for purposes of sentencing, pursuant to R.C. 2941.25, will cure any threat

33 of double jeopardy. Id.” State v. Hendrix, 11th Dist. Lake No. 2011-L-043, 2012-Ohio-

2832, ¶51.

{¶139} In this case, appellant’s “multiplicitous” claim is based upon the assertion

that all six charges heard by the jury related solely to one alleged victim, Russell Perry.

However, the record does not support his assertion. Specifically, the record shows that

the state went forward on the basis that Shaquetta was the victim under one count of

aggravated burglary and one count of aggravated robbery.

{¶140} As to the four remaining counts pertaining solely to Russell, two of them

charged the same offense, i.e., aggravated robbery. However, the two counts were

predicated upon different behavior. That is, the first charge of aggravated robbery as to

Russell, count two, was based upon the allegation that a handgun had been displayed

or brandished during the commission of a theft offense, while the second charge, as set

forth in count five, was predicated upon the allegation that there had been an attempt to

inflict serious physical harm upon Russell during the commission of a theft offense.

{¶141} In light of the foregoing discussion, the indictment did not state repetitive

charges alleging the identical offense as to the same victim. Hence, since the

indictment against appellant was not multiplicitous, his fifteenth assignment does not set

forth a meritorious reason for reversal.

{¶142} Under his sixteenth assignment, appellant contests the sufficiency of the

state’s evidence as it related to the aggravated robbery of Shaquetta. He contends that

this particular charge should not have gone to the jury because there was no evidence

that he ever directly confronted Shaquetta during the course of the incident. In support,

he emphasizes that Shaquetta admitted that she never saw him that night.

34 {¶143} Appellant’s conviction as to Shaquetta was based upon the theory that he

aided and abetted Carvell Fomby in the commission of the aggravated robbery.

Specifically, Russell Perry testified that appellant held him down on the kitchen floor

while Fomby went through the rest of the home, including the upstairs where Shaquetta

was present. Hence, since Fomby would not have been able to confront Shaquetta with

the handgun and take her cell phone unless appellant restrained Russell, there was

evidence from which the jury could find that appellant was guilty of complicity in the

commission of the aggravated robbery. Appellant’s sixteenth assignment lacks merit.

{¶144} Under his next assignment, appellant maintains that his conviction on all

three remaining charges were against the manifest weight of the evidence. However,

although appellant’s brief cites a number of cases generally addressing the “manifest

weight” standard, he never raises a specific argument concerning the evidence in this

particular case.

{¶145} The trial testimony of Russell and Shaquetta did not contain any inherent

inconsistencies of such a magnitude that would have rendered their version of events

totally unbelievable. Moreover, when viewed as a whole, their testimony constitutes

some competent evidence upon which the jury could find that all elements of the six

offenses had been satisfied. Appellant’s seventeenth assignment is without merit.

{¶146} Under his eighteenth assignment, appellant contends that the trial court’s

order concerning the payment of court costs must be reversed because the court failed

to fully explain the legal ramifications of not paying such costs. Specifically, he claims

the trial court failed to inform him that he could be subject to community service if he

fails to pay in a timely fashion.

35 {¶147} R.C. 2947.23(A)(1) states that, in all criminal cases, the trial court has an

obligation to include in the defendant’s sentence an order requiring the payment of

costs. Although the statute has subsequently been amended, at the time of appellant’s

sentencing, it further provided that, in imposing sentence, the court must orally notify the

defendant of the following:

{¶148} “(a) If the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under a payment schedule approved by the court, the

court may order the defendant to perform community service in an amount of not more

than forty hours per month until the judgment is paid or until the court is satisfied that

the defendant is in compliance with the approved payment schedule; [and]

{¶149} “(b) If the court orders the defendant to perform the community service,

the defendant will receive credit upon the judgment at the specified hourly credit rate

per hour of community service performed, and each hour of community service

performed will reduce the judgment by that amount.”

{¶150} In applying R.C. 2947.23(A)(1), this court has indicated that the statutory

oral notification requirements are mandatory. State v. Moore, 11th Dist. Geauga No.

2011-G-3027,

, ¶82-84. During the sentencing hearing, the trial court

did not give the required oral notification. However, there was no objection to the lack

of oral notification. Under such circumstances, a “plain error” analysis must be applied.

See Crim.R. 52(B); State v. Jackson, 10th Dist. Franklin Nos. 12-AP-768 & 12AP-769,

, ¶17.

{¶151} “Plain error exists only where, but for the error, the outcome of the trial

would have been different. State v. Bennett, 11th Dist. No. 2002-A-0020, 2005-Ohio-

36 1567, ¶55. Therefore, to warrant reversal for plain error, this court must find that: (1)

there was an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e., there

was an ‘obvious’ defect in the trial proceeding; and (3) the error affected substantial

rights, i.e., affected the outcome of the trial. Id. at ¶56.” State v. Sawyer, 11th Dist.

Portage No. 2011-P-0003,

, ¶6

{¶152} In its final written judgment, the trial court expressly stated that appellant

could be subject to community service under R.C. 2947.23(A) if he did not timely satisfy

the “court costs” order; thus, appellant was provided with written, as opposed to oral,

notice. Second, R.C. 2947.23(A) does not mandate the imposition of community

service for lack of payment, but merely grants the trial court the ability to futuristically

order community service in the event that the costs are not paid. The requirement is

essentially an “if-maybe” notice. As a result, the oral notification only informs the

defendant of a possible condition that may be later imposed. To this extent, the lack of

proper oral notification does not have immediate effect. Third, given that the state can

collect court costs through the garnishment of an inmate’s prison account, Jackson,

, ¶17, appellant’s court costs are likely to be paid before he is released

and the “community control” provision is triggered.

{¶153} For these reasons, the trial court’s failure to comply with the oral

notification requirement of R.C. 2947.23(A)(1) had no adverse effect upon appellant’s

trial, as no miscarriage of justice occurred that would warrant a finding of plain error.

Accordingly, appellant’s eighteenth assignment is lacking in merit.

{¶154} Under his nineteenth assignment, appellant asserts that his due process

rights were violated when his case was transferred to a new judge for purposes of trial.

37 Essentially, he argues that the transfer of the case was procedurally flawed because the

transfer order was not signed by the administrative judge of the common pleas court.

{¶155} Appellant’s case was originally assigned to Judge Vincent A. Culotta. On

March 14, 2012, Judge Culotta issued a judgment granting appellant a second

continuance and rescheduling his trial for April 24, 2012. On April 17, 2012, the state

moved Judge Culotta to join appellant’s case with Carvell Fomby’s case, since the two

cases involved the same offenses and were based upon the same incident. The next

day, Judge Culotta issued a new judgment granting the motion for joinder. Since

Fomby’s case was assigned to Judge Eugene A. Lucci and was also scheduled to go

forward on April 24, 2012, Judge Culotta further ordered that appellant’s case be

transferred to Judge Lucci.

{¶156} In arguing that only the administrative judge can order the transfer of an

assigned case, appellant cites Sup.R. 36(B), governing the use of an individual

assignment system for Ohio trial courts. It provides for a system in which a judge is

responsible for the disposition of all issues in a case once it has been assigned to him

or her by lot. The rule further provides that if the assigned judge is not available to

dispose of a pending matter, the motion or issue can be heard by the administrative

judge of the court.

{¶157} In interpreting a prior version of Sup.R. 36(B), the Eighth Appellate District

has concluded that the transfer of an assigned case is only effective when the order is

set forth in a journal entry executed by the administrative judge of the court. Berger v.

Berger,

(1981). However, the same court has also held that

any procedural defect in the transfer of an assigned case will be deemed waived if there

38 was no timely objection. Militiev v. McGee, 8th Dist. Cuyahoga No. 94779, 2010-Ohio-

6481, ¶18.

{¶158} Appellant did not raise a timely objection to the transfer of his case from

Judge Culotta. Thus, the issue is waived, and appellant’s nineteenth assignment does

not have merit.

{¶159} Under his final assignment, appellant asserts that he was denied effective

assistance of trial counsel. In evaluating ineffective assistance claims, an appellate

court must apply the two-part test promulgated by the United States Supreme Court in

Strickland v. Washington,

(1984):

{¶160} “A convicted defendant’s claim that counsel’s assistance was so defective

as to require reversal of a conviction * * * has two components. First, the defendant

must show that counsel’s performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment. Second, the defendant must show

that the deficient performance prejudiced the defense. This requires showing that

counsel’s error were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Unless a defendant makes both showings, it cannot be said that the

conviction * * * resulted from a breakdown in the adversary process that renders the

result unreliable.”

{¶161} “* * * When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.”

. “To warrant reversal, ‘(t)he

defendant must show that there is a reasonable probability that, but for counsel’s

39 unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” State v. Bradley,

(1989), quoting

.

{¶162} Without providing a specific argument, appellant claims the performance

of his trial counsel was deficient in the following respects: (1) “Counsel failed to object to

the host of leading questions asked by the prosecutor which contained the answers;” (2)

“Counsel failed to object to the jury instructions which did not reflect the allegations of

the indictment;” (3) “Counsel failed to object to the amendment of the indictment by the

prosecutor and the court;” (4) “Counsel failed to object to the consolidation of the case

and the transfer of the case from one judge to another;” (5) “Counsel failed to object to

the 911 call which was made by a person who did not testify but rather the daughter of

Shaquetta Page;” (6) “Counsel failed to object to hearsay where defendant’s name was

obtained from Shaquetta Page speaking with friends;” (7) “Counsel failed to object to an

improper question which assumed that defendant was the one who left the premises

when Shaquetta Page did not see defendant at all in the home that evening;” and (8)

“Counsel failed to object to the sentencing by the court which imposed consecutive

three year sentences when there was only one gun and defendant had no involvement

with Shaquetta Page.”

{¶163} Regarding appellant’s second, third and eighth assertions, this court has

already concluded that no prejudicial errors occurred in relation to these points. Hence,

trial counsel did not act deficiently in failing to object.

{¶164} As to appellant’s first assertion, the prosecutor asked the leading

40 questions while trying to refresh Russell Perry’s memory of his prior testimony. Even if

an objection should have been made, the failure did not alter the outcome of the trial

based on the entirety of the record.

{¶165} Concerning appellant’s fifth and sixth assertions, on the two occasions in

question, the state sought to introduce statements from other persons. But, the state

did not seek to introduce the statements for the truth of the matter asserted.

Accordingly, the lack of objection was appropriate.

{¶166} As to appellant’s fourth and seventh assertions, the record does support

the conclusion that a proper objection could have been raised as to the transfer of the

case to another judge and the disputed question which assumed that appellant had

been inside the home. However, the record also supports the conclusion that the lack

of objections did not have an adverse effect upon the outcome, as the evidence against

appellant was substantial and unrefuted.

{¶167} Pursuant to the foregoing, appellant has failed to establish that he was

denied effective assistance of trial counsel. Therefore, his twentieth assignment is

without merit.

{¶168} Consistent with the foregoing, each of appellant’s twenty assignments of

error is meritless. Therefore, it is the judgment and order of this court that the judgment

of the Lake County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J., concurs in part and concurs in judgment only in part with Concurring Opinion,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.

41 ____________________

TIMOTHY P. CANNON, P.J., concurring in part and concurring in judgment only in part.

{¶169} I concur in judgment only as applied to appellant’s assignment of error

number 18 involving former R.C. 2947.23(A)(1)(a). Though the majority adopts a plain-

error analysis, the recent precedent of this court focuses on the Ohio Supreme Court’s

emphasis on the obligatory language of the former statute in State v. Smith,

,

. See State v. Field, 11th Dist. Geauga No. 2012-G-3082,

; State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-

6127, ¶71-72; and State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohio-

3890, ¶43.

{¶170} I concur with the more straightforward approach of the Second Appellate

District in resolving this issue: simply acknowledge the error, modify the judgment to

eliminate any possibility that the appellant could be required to perform community

service as an option in lieu of paying costs, and then affirm the judgment as modified.

See State v. Veal, 2d Dist. Montgomery No. 25253,

; and State v.

Haney, 2d Dist. Montgomery No. 25344,

. Only a few cases will

require this approach given the statute’s recent amendment.

{¶171} I concur with the majority’s judgment and reasoning as applied to all

remaining assignments of error.

____________________

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.

42 {¶172} I concur with the majority regarding the disposition of appellant Ricci

Lewis’ assignments of error Nos. 1 through 12 and Nos. 14 through 20. I respectfully

dissent regarding assignment of error No. 13.

{¶173} The majority reaches the decision that appellant Ricci Lewis’ offenses of

aggravated burglary and aggravated robbery do not merge because the two crimes

were not committed with the exact same conduct. The majority notes that an additional

act was performed—physical harm—that was not necessary for the commission of the

aggravated robbery, yet completed the offense of aggravated burglary. However, in

reaching this conclusion the majority has essentially substituted the “conduct of

defendant” with the “elements of the offenses” in their allied-offense analysis. As such

the majority’s decision is reminiscent of the superseded Rance allied-offense standard

and not the current standard announced by the Supreme Court of Ohio in Johnson,

,

.

{¶174} Our review of an allied offenses question is de novo. State v. Williams,

,

.

{¶175} “R.C. 2941.25 ‘codifies the protections of the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution and Section 10, Article I of the

Ohio Constitution, which prohibits multiple punishments for the same offense.’ State v.

Underwood,

,

, * * * ¶23. At the heart of R.C. 2941.25 is

the judicial doctrine of merger; merger is ‘the penal philosophy that a major crime often

includes as inherent therein the component elements of other crimes and that these

component elements, in legal effect, are merged in the major crime.’ State v. Botta,

, 201 * * * (1971).” (Parallel citations omitted.) Williams at ¶13.

43 {¶176} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy

Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing.

Thus, when the issue of allied offenses is before the court, the question is not whether a

particular sentence is justified, but whether the defendant may be sentenced upon all

the offenses.’

.” Williams at ¶15.

{¶177} The Supreme Court previously established a two-part test for analyzing

allied-offense issues in State v. Blankenship,

(1988):

{¶178} In the first step, the elements of the two crimes are compared. If

the elements of the offenses correspond to such a degree that the

commission of one crime will result in the commission of the other,

the crimes are allied offenses of similar import and the court must

then proceed to the second step. In the second step, the

defendant's conduct is reviewed to determine whether the

defendant can be convicted of both offenses. If the court finds

either that the crimes were committed separately or that there was

a separate animus for each crime, the defendant may be convicted

of both offenses. (Emphasis sic.)

{¶179} Regarding the first element of that test, there was confusion among courts

about the role the facts of the particular case played in the analysis. The Supreme Court

tried to resolve this issue in State v. Rance,

(1999) by employing an

analysis that compared the statutory language of the two offenses in a vacuum to

determine whether one necessarily included the elements of the other. The Supreme

Court later determined that while Rance required courts to compare the elements of the

44 offense in the abstract, it did not require an exact alignment of elements. State v.

Cabrales,

,

, ¶26-27.

{¶180} Two years later, in

the Supreme Court abandoned the

abstract analysis entirely, overruled Rance, and held that “[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. at ¶44. The first question to be

asked is whether "it is possible to commit one offense and commit the other with the

same conduct * * *.” (Emphasis sic.) Id. at ¶48. If so, then it must be determined

whether the offenses were committed by a single act with a single state of mind. If both

of these questions are answered affirmatively, then the offenses are allied offenses of

similar import and will be merged. Id. at ¶49-50.

{¶181} The Johnson court also acknowledged the results of the above analysis

will vary on a case-by-case basis. Hence, while two crimes in one case may merge, the

same crimes in another may not. The court observed that inconsistencies in outcome

are both necessary and permissible “* * * given that the statute instructs courts to

examine a defendant’s conduct – an inherently subjective determination.” Id. at ¶52.

{¶182} Prior to Johnson, the Supreme Court consistently held the offenses of

aggravated burglary and aggravated robbery were not allied offenses of similar import.

See State v. Ketterer,

,

; State v. Williams,

(1996); State v. Barnes,

(1986); State v. Frazier,

(1979). After Johnson, this court, along with other appellate

districts has held that aggravated robbery and aggravated burglary can be merged as

allied offenses. State v. Jarvi, 11th Dist. Ashtabula No. 2011-A-0063,

,

45 ¶24; State v. Lacavera, 8th Dist. Cuyahoga No. 96242,

; State v.

Shears, 1st Dist. Hamilton No. C-120212,

; State v. Roper, 9th

Dist. Summit Nos. 26631, 26632,

. And some districts have held

that it is not possible to commit aggravated burglary and aggravated robbery with the

same conduct. State v. Hakim, 6th Dist. Lucas No. L-10-1153,

, ¶43;

State v. Turner, 2nd Dist. Montgomery No. 24421,

.

{¶183} However, as this court has held that the offenses of aggravated burglary

and aggravated robbery can be merged, we move to the next step of determining

whether Lewis’ offenses were committed by the same conduct, i.e., “‘a single act,

committed with a single state of mind.’ * * *.”

, quoting State v.

Brown,

,

, ¶50 (Lanzinger, J., dissenting).

{¶184} In conducting this analysis, some of the districts also appear to be

conflating the “conduct of the defendant” with the “elements of the offenses.” In

appellant was charged with aggravated burglary in violation of R.C.

2911.11(A)(1) (aggravating element: offender inflicts, or attempts to inflict physical harm

on another) and aggravated robbery in violation of R.C. 2911.01(A)(3) (aggravating

element: offender inflicts, or attempts to inflict, serious physical harm on another).

Shears at ¶15. In Shears the victim was struck unconscious, placed in the trunk of a

car—still alive—only to be found dead several days later. The First District held that the

“conduct” that provided the aggravation for both counts was the same, thus requiring

merger. Id. at ¶41.

{¶185} The defendant in Jarvi, supra, was charged under the same burglary and

robbery statutes as the appellant in Shears. Jarvi at ¶17-23. The victim in Jarvi was

46 struck with a wooden club and subsequently died. Id. At ¶2. This court likewise held

that the two offenses merged as “the two crimes were not committed separately or with

a separate animus.” Id. at ¶24.

{¶186} In this case, Lewis was charged with aggravated burglary in violation of

R.C. 2911.11(A)(1) (aggravating element: offender inflicts, or attempts to inflict physical

harm on another) and aggravated robbery in violation of R.C. 2911.01(A)(1)

(aggravating element: having a deadly weapon on or about the offender’s person). The

majority reaches the decision that Lewis’ offenses of aggravated burglary and

aggravated robbery do not merge because an additional act was performed—physical

harm—that was not necessary for the commission of the aggravated robbery, yet

completed the offense of aggravated burglary. The majority refers to the “additional act”

of causing physical harm to the victim, Russell Perry. However, causing physical harm

is an element of aggravated burglary that is not contained in Lewis’ charge of

aggravated robbery. As such the majority appears to be concentrating on the elements

of the offenses (a Rance analysis) and ignoring whether these offenses were committed

by a single act with a single state of mind as Johnson instructs.

.

Focusing on the “elements of the offenses” rather than the “conduct of the defendant” is

tantamount to putting old wine in new bottles.

{¶187} It is true that the “elements of the offenses” and the “conduct of the

defendant” will often correlate to such a degree that the resolution of the one question

results in the resolution of the other. However, it is conduct and state of mind that is the

focus of the second part of the Johnson test. The trial court in

held that

the offenses of aggravated burglary and aggravated robbery merged even though the

47 “conduct” that provided the aggravation for both offenses did not correlate completely.

Roper at ¶11. The defendants in Roper were charged with the same aggravated

burglary and aggravated robbery offenses as Lewis. Even though the merger of the

aggravated burglary and aggravated robbery charges by the trial court was not an issue

on appeal, the Ninth District noted and approved the merger. Id. at ¶9.

{¶188} In

the Eighth District held that it was possible to commit

aggravated burglary, aggravated robbery, kidnapping and felonious assault with the

same conduct. Id. at ¶46. The court held that these offenses occurred as part of the

same transaction and therefore were committed with the same animus. Id.

{¶189} While this writer feels that the Eighth and Ninth Districts have reached the

correct results, neither case provides an analytical framework to be applied in future.

Once it has been determined that it is possible to commit one offense and commit the

other with the same conduct (the first part of the Johnson test) a framework for

determining if the offenses comprise a single act, committed with a single state of mind,

needs to be utilized. Such a framework was outlined by the Supreme Court when they

defined a “transaction” as a “‘“series of continuous acts bound together by time, space

and purpose…”’” State v. Wills,

(1994), quoting State v.

Caldwell, 9th Dist. Summit No. 14720, 1991 Ohio App. LEXIS, *34 (Dec. 4, 1991).

{¶190} An application of the “time, space and purpose” analysis leads to the

conclusion that Lewis’ offenses were part of one course of conduct.

{¶191} As the majority has outlined, this incident occurred as Russell Perry, one

of the victims in this case, was putting out the trash at around 11:00 p.m. As Russell

was re-entering the home and began to shut the back door, Lewis and his accomplice

48 (Fomby) pushed on the door and forced their way into the kitchen. As Russell tried to

resist, Fomby produced a small firearm and placed the barrel on Russell’s forehead.

Lewis and Fomby pushed Russell across the room until he fell by the refrigerator.

During the confrontation, Lewis and Fomby struck Russell on his head and he sustained

scrapes and bruises on his face and skull. However, upon direct examination Russell

could not recall if he was struck by the gun or by the hands of his assailants.

{¶192} After Russell was subdued, Lewis sat on top of him as Fomby went

through the house and to the upstairs bedroom where he confronted Shaquetta Page.

Fomby put the same small firearm to Shaquetta’s head and stated that he was going to

rob her. Upon hearing police sirens (Russell’s daughter had called the police on her cell

phone) both Lewis and Fomby exited the house.

{¶193} The aggravated burglary and aggravated robbery were both committed

within a very brief period of time. Both offenses were committed virtually

simultaneously. The robbery was committed immediately after Lewis and Fomby forced

their way into the house. Thus an analysis of the time element supports merger.

{¶194} Apart from the fact that the two victims were located in separate parts of

the house—this event occurred in a single location. As such an analysis of the space

element also supports merger.

{¶195} The evidence is that Lewis and Fomby forced their way into the house

(burglary) in order to commit theft (robbery). The manner of their actions suggests a

single purpose that should lead to merger.

{¶196} The record in this case established that Lewis evidenced the same animus

in committing both offenses. Looking to Lewis’ conduct, this was a single act committed

49 with a single state of mind. Lewis committed the aggravated burglary as a means of

implementing the aggravated robbery. Stated differently, the burglary was part of Lewis’

efforts to obtain money through robbery.

{¶197} In Jarvi, supra, and

the appellants were charged with

aggravated burglary and aggravated robbery. But due to the absence of a firearm, the

aggravating “conduct” for each of these cases was the same—inflicting physical harm

on another. In these cases the offenses of aggravated burglary and aggravated robbery

merged. And it should not be overlooked that the victims in both Jarvi and Shears died

as a result of their injuries. Jarvi at ¶24; Shears at ¶41.

{¶198} In the present case Lewis was likewise charged with aggravated burglary

and aggravated robbery. But due to the presence of a firearm, the physical harm

caused to Russell presents a differently charged aggravating element for the burglary

offense than for the robbery offense. In the majority’s view this difference prevents

Lewis’ offenses from merging.

{¶199} Lewis’ six year sentence for aggravated burglary is to run consecutively to

his eight year sentence for his aggravated robbery charges. Lewis was also sentenced

to an additional six years on two, three-year gun specifications: all sentences to run

consecutively for a total of twenty years. Yet the victim in this case only suffered

scrapes and bruises on his face and skull while the victims in Jarvi and Shears died as

a result of their injuries.

{¶200} The failure to merge Lewis’ offenses cannot be reconciled in light of Jarvi

and Shears. The majority’s opinion does not comport with the purposes and principles

of felony sentencing as delineated by R.C. 2941.25. It is incongruent that virtually the

50 same offenses will merge in one case where the victim died and not merge in another

case where the victim suffered only minor injuries—due only to the presence of a

firearm.

{¶201} The majority notes that if a separate penalty could not be imposed for the

aggravated burglary, it would mean that Lewis would be free to inflict physical harm

upon Russell without having to face additional penalty. But as the Johnson analysis

instructs us to focus on conduct we are forced to ask: how is the conduct in this case

distinguishable from Shears and Jarvi due to the presence of a firearm? In other words,

how does the conduct of a physical assault imply a separate animus just because a

firearm is present? Lewis was already sentenced to serve an additional six years due to

the firearm specifications as applied to two victims (despite the fact that only one firearm

was used in the commission of his offenses). If the presence of a firearm is the

difference between whether or not Lewis’ aggravated burglary and aggravated robbery

offenses merge—then the majority is actually focusing on the elements of the offense

and not the conduct of the defendant.

{¶202} The presence of a firearm already subjected Lewis to additional penalties

pursuant to R.C. 2929.14. The failure of the trial court to merge the offenses of

aggravated burglary and aggravated robbery in this case, combined with the

consecutive sentences imposed, results in the type of shotgun conviction that Johnson

advises against. Such a sentence heaps on a defendant multiple punishments for

closely related offenses arising from the same transaction without any consideration or

evidence in the record that the sentence complies with Johnson or the overall purposes

and principles of sentencing.

.

51 {¶203} Thus, I respectfully dissent as to assignment of error No.13 and concur

with the majority’s judgment and reasoning as applied to all remaining assignments of

error.

52