[Cite as State v. Young,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26725

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE STEVEN A. YOUNG COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 05 1248(A)

DECISION AND JOURNAL ENTRY

Dated: April 23, 2014

BELFANCE, Presiding Judge.

{¶1} Steven Young appeals from his convictions in the Summit County Court of

Common Pleas. For the reasons set forth below, we affirm.

I.

{¶2} On April 9, 2012, Tocarra Varner was smoking marijuana in her house with

Tyeshia Shellman while her boyfriend Kevin Moore took a bath and her children played upstairs.

Two men entered the house and proceeded to rob her and Mr. Moore. Although one of the men

was wearing a bandanna over his face, the bandanna slipped down, and Ms. Varner recognized

the man as Anthony Shellman, Ms. Shellman’s brother. The other man did not wear any mask,

but Ms. Varner did not recognize him as anyone that she knew. Eventually, the men and Ms.

Shellman left, and one of Ms. Varner’s children called the police. Ms. Varner told the police that

she believed the Shellmans were both involved in the robbery and that there was a second man

whom she could not identify. 2

{¶3} The day after the robbery, Ms. Varner came to the police station to speak with

Detective David Garro about the robbery. Ms. Varner indicated that an acquaintance had told

her that Mr. Young had probably been involved in the robbery. Ms. Varner told the police that

she had looked Mr. Young up on Facebook and had recognized him as the second robber.

Detective Garro was unable to locate a Facebook page associated with Mr. Young, but he

showed Ms. Varner a picture of Mr. Young, asking her “‘Is this the correct Steve Young?’” Ms.

Varner indicated that it was.

{¶4} A few weeks after the robbery, Mr. Young was arrested while in the company of

Thomas Garrett, who was a member of the Bloodline Gang, and Richard Martin. During the

course of arresting Mr. Young, the police discovered two firearms in the apartment, which Mr.

Martin was charged with possessing.

{¶5} Mr. Young was indicted for aggravated burglary, safecracking, and two counts of

aggravated robbery as well as underlying firearm specifications for the aggravated burglary and

aggravated robbery charges. A supplemental indictment charged Mr. Young with having a

weapon while under disability, participating in a criminal gang, and two counts of kidnapping.

The kidnapping and participating in a criminal gang charges had underlying firearm

specifications,1 and the kidnapping charges had underlying gang specifications. The jury found

Mr. Young guilty on all counts, and the trial court sentenced him to an aggregate term of 22

years in prison.

{¶6} Mr. Young has appealed, raising four assignments of error for our review. For

ease of discussion, we have rearranged his assignments of error.

1 The having a weapon while under disability charge also had an underlying firearm specification that was eventually dismissed. 3

II.

ASSIGNMENT OF ERROR II

DUE PROCESS WAS DENIED AS THE EVIDENCE WAS INSUFFICIENT TO PROVE A CRIMINAL GANG COUNT OR GANG SPECIFICATION AND THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶7} In Mr. Young’s second assignment of error, he challenges the sufficiency of the

evidence related to his conviction for participating in a criminal gang and argues that all of his

convictions are against the manifest weight of the evidence.

Sufficiency

{¶8} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-

6955, ¶ 18, citing State v. Thompkins,

(1997).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

(1991), paragraph two of the syllabus.

{¶9} Mr. Young argues that the State presented insufficient evidence from which the

jury could find that Mr. Young had violated R.C. 2923.42 by participating in a criminal gang.2

R.C. 2923.42(A) provides that

2 Mr. Young also argues that the jury’s findings regarding the gang specifications were not supported by sufficient evidence because the gang specifications were improperly indicted. However, Mr. Young has not pointed to any authority to support his argument, see App.R. 16(A)(7), and, in any case, his argument is outside the scope of this assignment of error. See Taylor v. Hamlin-Scanlon, 9th Dist. Summit No. 23873,

(“[A]n appellant’s assignment of error provides this Court with a roadmap to guide our review.”). 4

[n]o person who actively participates in a criminal gang, with knowledge that the criminal gang engages in or has engaged in a pattern of criminal gang activity, shall purposely promote, further, or assist any criminal conduct, as defined in division (C) of section 2923.41 of the Revised Code, or shall purposely commit or engage in any act that constitutes criminal conduct, as defined in division (C) of section 2923.41 of the Revised Code.

Pertinent to this case, R.C. 2923.41(C) defines “criminal conduct” as “the commission of, an

attempt to commit, a conspiracy to commit, complicity in the commission of, or solicitation,

coercion, or intimidation of another to commit, attempt to commit, conspire to commit, or be in

complicity in the commission of an offense listed in division (B)(1)(a), (b), or (c) of this section

* * *.” The offenses listed in R.C. 2923.41(B)(1) are “(a) [a] felony * * * (b) [a]n offense of

violence * * * [and] (c) [a] violation of section 2907.04, 2909.06, 2911.211, 2917.04, 2919.23,

or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code, section

2925.03 of the Revised Code if the offense is trafficking in marihuana, or section 2927.12 of the

Revised Code.” Pursuant to R.C. 2901.01(A)(9), aggravated robbery (R.C. 2911.01), aggravated

burglary (R.C. 2911.11), and kidnapping (R.C. 2905.01) are offenses of violence.

{¶10} Ms. Varner testified that, on April 9, 2012, Ms. Shellman called her to borrow

$25. Ms. Varner agreed to loan Ms. Shellman the money, and Ms. Shellman came over while

Ms. Varner was taking a bath. Ms. Varner testified that her children, ages 12 and 6, were

playing upstairs and that her boyfriend Kevin Moore was also home at the time. Ms. Shellman

left but returned a short time later, and Ms. Varner smoked marijuana with her. At some point,

Ms. Shellman got up to purportedly look for a trashcan, but Ms. Varner actually saw her unlock

the side door to the house. The women then went into Ms. Varner’s bedroom so that Ms. Varner

could iron some clothes. Mr. Moore was in the bathroom taking a bath during this time.

{¶11} While Ms. Varner was ironing, she saw two men run past her window, and they

quickly entered the house. According to Ms. Varner, one of the men had his face covered by a 5

bandana, but the other man made no attempt to conceal his face. The man with his face exposed

blocked Ms. Varner from exiting her bedroom, giving her ample opportunity to observe his

features. Meanwhile, the other man, who Ms. Varner recognized as Mr. Shellman when his

mask slipped, got Mr. Moore from the bathtub and also brought the children downstairs. Mr.

Shellman brought Mr. Moore into the bedroom and forced him to open the safe in the closet.

Ms. Varner testified that Mr. Shellman was brandishing a gun during the incident. At some point

during the incident, Ms. Shellman casually walked out of the house.

{¶12} After the men left, Ms. Varner’s younger son dialed 911 but hung up. The

operator called back, and Ms. Varner told the police to come. Ms. Varner spoke with the

detective who arrived on the scene. She told the detective that Mr. Shellman was one of the

robbers but that she did not know who the second man was. However, the next day, she looked

up Mr. Young on Facebook on the advice of a friend and recognized Mr. Young as the second

robber. Ms. Varner went to the police station and spoke with Detective Garro.

{¶13} Ms. Shellman testified that she went to Ms. Varner’s home twice on April 9,

2012: once to borrow $25 and another time to smoke marijuana. Ms. Shellman also testified that

she followed Ms. Varner into her bedroom because Ms. Varner had to iron some clothes. While

they were in the bedroom, Ms. Varner told Ms. Shellman to look out the window, and Ms.

Shellman saw Mr. Young walking to the side door of the house. Mr. Young entered the house,

came into the bedroom, and told Ms. Varner and Ms. Shellman to lay down.

{¶14} According to Ms. Shellman, she did not see her brother until he was coming down

the stairs with Ms. Varner’s children; Mr. Shellman was holding a gun at the time. Mr. Shellman

then went into the bathroom to get Mr. Moore, whom he forced to go into the bedroom. When

Mr. Shellman went into the bedroom with Mr. Moore, Ms. Shellman left. 6

{¶15} Later on the evening of April 9, 2012, a message was sent to Ms. Shellman’s

phone from Mr. Young’s Facebook account. It said, “My fault earlier, but I had to make it seem

like u ain’t have shit to do wit it* * *hope u dnt FSKW about how it went down. U know [I]

LOVE U too[.]” Ms. Shellman explained that “FSKW” meant “feel some type of kind of way.”

Ms. Shellman understood Mr. Young’s message to be referring to the robbery at Ms. Varner’s

house. Ms. Shellman also testified that she received text messages from Mr. Young’s cell phone

on April 11, 2012, in which Mr. Young asked Ms. Shellman how Ms. Varner had learned his

name and who had given him up.

{¶16} Mr. Shellman testified that he had seen Mr. Young walking and had given him a

ride because he had not seen Mr. Young in a while. Mr. Young gave Mr. Shellman a number at

which he could contact him. According to Mr. Shellman, Mr. Young participated in the robbery

because, like Mr. Shellman, Mr. Young was in need of money. Mr. Shellman testified that he

wanted to rob Mr. Moore because he knew Mr. Moore dealt drugs so he would likely have

money and drugs to steal.

{¶17} According to Mr. Shellman, he and Mr. Young agreed that Mr. Young should

bring his gun on the robbery. However, once they entered the home, Mr. Shellman took the gun

from Mr. Young because he wanted to make sure that no one was shot. He tried to locate Mr.

Moore, looking upstairs and then in the bathroom where he found Mr. Moore in the shower. Mr.

Moore told Mr. Shellman that he had money in his pants and drugs in his car. Mr. Shellman

went through Mr. Moore’s pants and found $500 and small quantities of heroin, crack cocaine,

and marijuana. After the men left the house, they divided up the money and the drugs.

{¶18} Mr. Shellman testified that he did not speak with Mr. Young again about the

robbery until they were both in jail. According to Mr. Shellman, Mr. Young wanted Mr. 7

Shellman to take total responsibility for the robbery because Mr. Young had just gotten out of

prison after serving a number of years.

{¶19} Detective David Garro testified that he had investigated the robbery at Ms.

Varner’s home. Based on information gained from Ms. Shellman’s phone, he subpoenaed phone

records related to the number she claimed to be that of Mr. Young. According to Detective

Garro, the records he received from the phone company indicated that the phone was registered

to Mr. Young, and those phone records were entered into evidence.

{¶20} Officer Criss testified extensively about gang activity in Akron and specifically

about the Bloodline gang. He testified that the Bloodline gang typically wore red and black and

that it was affiliated with the South Bronx Gangsters, which was an older gang in Akron.

{¶21} Ms. Shellman and Mr. Shellman testified that Mr. Young was a member of the

Bloodline gang. Ms. Shellman also testified that, following the robbery, Mr. Young changed his

Facebook picture from a picture of him and a woman to a picture of money lying on a red

bandanna. Mr. Shellman testified that he was affiliated with the South Bronx Gangsters but

denied that the group was a criminal gang, instead claiming that they were a neighborhood

group. However, Officer Criss testified that the South Bronx Gangsters was actually an umbrella

gang, which was an overarching gang encompassing a number of smaller gangs, including the

Bloodline.

{¶22} We initially note that Mr. Young does not dispute that there was sufficient

evidence from which the jury could conclude that he was a member of the Bloodline gang and

that he knew that the Bloodline gang had engaged in a pattern of criminal activity. Nor does he

argue that there was insufficient evidence to support his convictions for aggravated robbery,

aggravated burglary, or kidnapping, all of which are felonies and offenses of violence. See R.C. 8

2923.41(B)(1)(a)-(b); R.C. 2901.01(A)(9). Instead, Mr. Young’s appellate arguments focus

solely on the prohibition in R.C. 2923.42(A) that a gang member shall not “purposely promote,

further, or assist any criminal conduct[.]”

{¶23} Mr. Young argues that he could not be found guilty of participating in a criminal

gang because he did not promote, further, or assist criminal conduct of a fellow gang member

because there was no evidence that Mr. Shellman or Ms. Shellman were members of the same

gang. See State v. Stallings,

,

, ¶ 17 (9th Dist.) (“[F]or a

defendant to be criminally liable under R.C. 2923.42(A), he would also have to be criminally

liable as an aider or abettor to a crime committed by a fellow gang member or members.”).

However, Mr. Shellman testified that he robbed Ms. Varner and Mr. Moore with Mr. Young’s

assistance and that he was a member of the South Bronx Gangsters. Officer Criss testified that

the South Bronx Gangsters were affiliated with the Bloodline gang and that the Bloodline gang

was actually a subsidiary of the South Bronx Gangsters.

{¶24} Furthermore, Mr. Young’s argument ignores the alternative prohibition in R.C.

2923.42(A) that a member of a criminal gang may not “purposely commit or engage in any act

that constitutes criminal conduct,” which would include aggravated robbery and kidnapping, and

Mr. Young has not developed any argument as to whether there was insufficient evidence to

support a finding of guilty under that portion of R.C. 2923.42(A). See App.R. 16(A)(7); State v.

Harmon, 9th Dist. Summit No. 26426,

. Ms. Varner, Ms. Shellman, and

Mr. Shellman all testified that Mr. Young participated in an armed robbery at Ms. Varner’s

home. Accordingly, there was sufficient evidence from which the jury could conclude that Mr.

Young, while he was an active member in the Bloodline gang which he knew engaged in a

pattern of criminal conduct, purposely committed criminal conduct. Thus, his conviction for 9

participating in a criminal gang in violation of R.C. 2923.42(A) was supported by sufficient

evidence.

Manifest Weight of the Evidence

{¶25} Mr. Young also argues that his convictions are against the manifest weight of the

evidence. In reviewing a challenge to the weight of the evidence, the appellate court

[m]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986).

{¶26} Mr. Young testified in his own defense at trial and denied having anything to do

with the robbery at Ms. Varner’s home. He testified that he had been with Ms. Shellman and Mr.

Shellman later on the day of the robbery and that there had been an argument. According to Mr.

Young, the text from his Facebook account that was sent that night was referring to that

argument and that he was apologizing to Ms. Shellman for his behavior. Mr. Young also

testified that he was surprised to learn that he was wanted in connection with a robbery, which

was why he texted Ms. Shellman asking how Ms. Varner had learned his name. He admitted that

he had not turned himself in after learning that he was wanted but asserted that he had only done

so because he wanted to be with his girlfriend on her birthday. Mr. Young further testified that,

when he was first in jail, Mr. Shellman acted normal towards him but, as time went on, Mr.

Shellman became increasingly hostile.

{¶27} Micah Mosley also testified for the defense. Mr. Mosley testified that he was in

the same pod in the jail as Mr. Shellman. Accordingly to Mr. Mosley, he had spoken with Mr.

Shellman during one of the programs offered at the jail and that Mr. Shellman had admitted that 10

Mr. Young had not been involved in the robbery. However, according to Mr. Mosley, Mr.

Shellman indicated that he planned to say Mr. Young was involved because he thought having a

second defendant would lessen the amount of prison time he would serve.

{¶28} Ms. Varner, Mr. Shellman, and Ms. Shellman testified that Mr. Young was the

other robber who participated in the robbery with Mr. Shellman. He argues that their testimony

should not be given any weight. Accordingly, we confine our analysis to whether the jury lost its

way when it found that Mr. Young was the second person who robbed Ms. Varner. See State v.

Jackson, 9th Dist. Summit No. 26757,

.

{¶29} Mr. Young argues that Ms. Varner’s testimony should be discredited because she

was a drug dealer and her story as to how she came to identify Mr. Young was unbelievable. He

also argues that the testimony of Mr. Shellman and Ms. Shellman was not credible because they

had accepted plea deals in exchange for their testimony. However, the jury was aware of all of

this information from the testimony and cross-examination of Mr. Shellman, Ms. Shellman, and

Ms. Varner and, thus, could decide what weight to give their testimony. See id. at ¶ 21, citing

State v. Andrews, 9th Dist. Summit No. 25114,

, ¶ 28. All three testified that

there was a second man involved in the robbery and that the second man was Mr. Young.

Furthermore, the State presented phone records that supported Ms. Shellman’s testimony that

Mr. Young had texted her about the robbery and to ask how Ms. Varner had learned his name.

{¶30} Under the circumstances, we cannot conclude that the jury lost its way and

committed a manifest miscarriage of justice by finding that Mr. Young was the second man

present at the scene and had committed the offenses at issue in this case. See Andrews at ¶ 28

(“A verdict is not against the manifest weight of the evidence because the jury chose to believe 11

the State’s witnesses rather than the defense witnesses.”). Mr. Young’s second assignment of

error is overruled.

ASSIGNMENT OF ERROR I

FAILURE TO MOVE TO SUPPRESS I[D]ENTIFICATION TESTIMONY AND FAILURE TO MAKE CLOSING ARGUMENT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL[.]

{¶31} Mr. Young argues in his first assignment of error that he received ineffective

assistance of counsel because his trial counsel did not move to suppress Ms. Varner’s

identification of him and because trial counsel did not make a closing argument.

{¶32} In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt,

,

, ¶ 62, citing Strickland v. Washington,

(1984).

Ms. Varner’s Identification

{¶33} Mr. Young first contends that his counsel’s performance was deficient for failing

to file a motion to suppress Ms. Varner’s identification of him as impermissibly suggestive.

However, assuming counsel was deficient in failing to challenge the Ms. Varner’s identification,

Mr. Young does not develop any argument as to how, counsel’s failure to do so affected the

outcome of the proceedings. See App.R. 16(A)(7); Harmon,

. Mr.

Shellman and Ms. Shellman both identified Mr. Young as the other person who came into Ms.

Varner’s house the day of the robbery. Ms. Shellman also testified that she received text

messages from Mr. Young’s Facebook account and that those text messages referred to the 12

robbery. The phone records also indicated that messages were sent from Mr. Young’s phone to

Ms. Shellman’s phone from which an inference about his involvement could be made. Thus,

based on the evidence presented at trial, we cannot say that, assuming Mr. Young’s counsel was

deficient for failing to move to suppress Ms. Varner’s identification of Mr. Young, there is a

reasonable probability that the deficiency affected the outcome of the trial.

Failure to Make Closing Argument

{¶34} Mr. Young also argues that his trial counsel was ineffective for not making a

closing argument during the trial. Admittedly, trial counsel’s decision not to make a closing

argument in this case is troubling as the closing argument is counsel’s last chance to plead the

defendant’s case. Furthermore, while there may be strategic reasons to not make a closing

argument,3 we cannot discern any in this case. Nevertheless, assuming counsel’s performance

was deficient, under the circumstances of this case, we cannot conclude that there is a reasonable

probability that trial counsel’s failure to make a closing argument affected the outcome of the

trial.

{¶35} It is important to remember that, while important, argument is not evidence going

to the question of guilt. State v. Frazier,

(1995) (“It is well settled that

statements made by counsel in opening statements and closing arguments are not evidence.”).

Furthermore, the evidence of Mr. Young’s involvement in this case was substantial. Ms. Varner,

Mr. Shellman, and Ms. Shellman all testified that Mr. Young was the second robber, and there

were phone records that also implicated Mr. Young in the crime. In addition, trial counsel

thoroughly cross-examined the witnesses in this case and generally appears to have been well

3 For example, the prosecutor’s closing argument could ignore certain charges or the prosecutor could give a very brief closing, both of which could possibly justify a decision not to make a closing argument so as to avoid the prosecutorial rebuttal. See State v. Burke,

(1995); State v. Apanovitch,

(1987). 13

prepared in his defense of Mr. Young. Finally, and significant to our analysis, Mr. Young

testified in this case, meaning the jury was able to hear his side of the story directly from him,

and, therefore, argument of counsel was not the sole means of conveying the defendant’s

position. Mr. Young testified that he was not present during the robbery; if believed, Mr.

Young’s testimony alone would have created reasonable doubt as to whether he committed the

crimes. Given that the jury clearly did not believe Mr. Young based on its verdicts, it is difficult

to see how counsel’s closing arguments would have made a difference.

{¶36} Given the importance of closing argument, we emphasize that our decision today

should not be read as a bright-line rule regarding whether trial counsel’s failure to make a closing

argument constitutes ineffective assistance of counsel. If counsel’s performance at trial was

lacking, if there had been less evidence of guilt, or even if the defendant did not testify, our

decision well could be different. However, under these specific circumstances, we cannot

conclude that Mr. Young was prejudiced by his trial counsel’s failure to make a closing

argument.

{¶37} Accordingly, Mr. Young’s first assignment of error is overruled.

ASSIGNMENT OF ERROR III

ADMISSION OF GUN EVIDENCE AND EXPERT TESTIMONY WAS IN PLAIN ERROR, CONTRARY TO LAW, CAUSED SUBSTANTIAL PREJUDICE, AND DENIED DUE PROCESS[.]

{¶38} Mr. Young argues in his third assignment of error that the trial court should not

have permitted the State to introduce the evidence that guns were found when he was arrested.

He also argues that the trial court committed plain error by allowing Officer Criss to give expert

testimony about gangs. Because the evidence of the guns was admitted during Officer Criss’s

testimony, we address Officer Criss’s testimony first. 14

{¶39} Generally, “we review a trial court’s admission of evidence for abuse of

discretion.” State v. Truitt, 9th Dist. Summit No. 25527,

. However,

because Mr. Young never objected to Officer Criss’s testimony, we review the admission of the

testimony for plain error. See Crim.R. 52(B). To establish plain error,

“[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights [ ]’ [to the extent that it] * * * affected the outcome of the trial.”

State v. Hardges, 9th Dist. Summit No. 24175,

, ¶ 9, quoting State v. Barnes,

(2002). However, “[n]otice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long,

(1978), paragraph three of the syllabus.

{¶40} Officer Criss testified at length about gang activity generally as well as about

gangs in Akron. Mr. Young argues that Officer Criss should not have been permitted to testify

because he had not been qualified as an expert and had not submitted an expert report in

compliance with Crim.R. 16(K). However, Mr. Young has not developed any argument as to

how these alleged errors affected the outcome of his trial. See Hardges at ¶ 9. See also App.R.

16(A)(7); Harmon,

. As noted above, plain error should only be

recognized under exceptional circumstances and to prevent a manifest miscarriage of justice.

Based upon the record before us, we cannot find plain error when Mr. Young has not developed

any argument regarding how, assuming error occurred, the outcome of the trial was affected by

the error. Thus, we cannot conclude that Mr. Young has established that plain error occurred in

this case. See Hardges at ¶ 9. 15

{¶41} Turning to Mr. Young’s argument regarding the admission of the firearms in this

case, we agree that the firearms were of questionable relevance.4 Mr. Young was arrested at the

residence of Richard Martin. Thomas Garrett was also present. Mr. Garrett, like Mr. Young,

was a known member of the Bloodline gang; however, no evidence was submitted at trial that

would indicate that Mr. Martin was affiliated with the Bloodline gang or any gang for that

matter. During the arrest, police discovered a rifle and a handgun behind Mr. Martin’s couch.

Over the objection of Mr. Young’s counsel, the trial court admitted the guns as evidence going to

whether the Bloodline gang still existed or was still active.

{¶42} Assuming that the firearms were improperly admitted, we cannot conclude that

the error affected Mr. Young’s substantial rights. See Crim.R. 52(A). There was no dispute at

trial that Mr. Young had previously been involved in the Bloodline gang, and Mr. Young

admitted during his testimony that he had gone to prison on charges related to his gang activities.

Multiple witnesses also testified that Mr. Young was involved in the robbery at Ms. Varner’s

house and text messages from his phone also implicated him. Thus, under the circumstances, we

cannot discern how, assuming the guns should not have been admitted, that the evidence affected

Mr. Young’s substantial rights, especially since there was no evidence that he was in possession

of the guns.

{¶43} Accordingly, Mr. Young’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

IMPOSITION OF MULTIPLE AND CONSECUTIVE TERMS OF IMPRISONMENT FOR COUNTS AND SPECIFICATIONS WAS CONTRARY TO LAW AND PLAIN ERROR IN VIOLATION OF DUE PROCESS AND DOUBLE JEOPARDY PROTECTIONS[.]

4 We note that the State does not address this portion of Mr. Young’s third assignment of error. 16

{¶44} Mr. Young argues in his fourth assignment of error that all his convictions should

merge. Mr. Young also argues that the trial court erred when it ordered that some of Mr.

Young’s sentences and specification-terms should be served consecutively. Finally, Mr. Young

argues that the trial court should not have considered a letter discovered by the State following

his trial when it imposed its sentence.

Allied Offenses

{¶45} Mr. Young argues that “[m]erger of allied offenses was not properly determined *

* *” because the trial court applied a “bright line” rule of multiple victims inherently making

multiple offenses of dissimilar import. We disagree that the trial court clearly applied a “bright

line” rule when it determined that some of Mr. Young’s offenses do not merge. However, in any

case, our review of the allied offense issue is de novo, State v. Williams,

,

, and Mr. Young has not developed any argument as to why the trial court’s

ultimate decision not to merge some of the offenses was incorrect. See App.R. 16(A)(7);

Harmon,

. See also State v. Washington,

, 2013-Ohio-

4982, ¶ 18 (“[T]he defendant bears the burden of establishing his entitlement to the protection,

provided by R.C. 2941.25, against multiple punishments for a single criminal act.”) (Internal

quotations and citation omitted.). Accordingly, given Mr. Young’s lack of argument and that it

is his burden to establish entitlement to merger, we cannot conclude that Mr. Young has

demonstrated that the trial court erred when it did not merge all of his convictions.

Gang Specifications

{¶46} Mr. Young argues that the trial court could not impose a prison sentence for the

gang specification to kidnapping because all of his convictions should have merged. However,

as discussed above, Mr. Young has not demonstrated that his offenses should have merged. He 17

also reiterates his contention that the gang specifications were improperly indicted. Again, Mr.

Young’s arguments are outside the scope of the stated assignment of error, and we decline to

address them. See Taylor,

.

Firearm Specifications

{¶47} Mr. Young argues that the trial court should not have ordered the firearm

specifications for the aggravated robberies to be served consecutively, citing R.C.

2929.14(B)(1)(b). R.C. 2929.14(B)(1)(b) provides, in pertinent part, “Except as provided in

division (B)(1)(g) of this section, a court shall not impose more than one prison term on an

offender under division (B)(1)(a),[5] of this section for felonies committed as part of the same act

or transaction.” Mr. Young argues that the aggravated robberies were “part of one transaction”

and, therefore, the trial court’s imposition of consecutive sentences was in violation of R.C.

2929.14(B)(1)(b).6 However, R.C. 2929.14(B)(1)(b) is subject to R.C. 2929.14(B)(1)(g), which

provides that

[i]f an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are 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 the remaining specifications.

On its face, R.C. 2929.14(B)(1)(g) required the trial court to impose two prison terms for the

firearm specifications to Mr. Young’s aggravated robbery convictions, and Mr. Young does not

5 R.C. 2929.14(B)(1)(a) governs the imposition of prison terms for firearm specifications like the ones at issue in this case. 6 We note that the State’s entire response to Mr. Young’s argument regarding the firearm specifications is that it “disagrees with [Mr.] Young’s characterization of these events as one transaction.” 18

develop any argument as to why R.C. 2929.14(B)(1)(g) would not apply in this case. See App.R.

16(A)(7); Harmon,

. Accordingly, we find Mr. Young’s arguments about

his firearm specifications to be without merit.

The Letter and Mr. Young’s Fifth Amendment Rights

{¶48} Mr. Young’s argument is essentially two-fold: (1) the trial court should not have

considered the letter that the State presented at sentencing and (2) that the trial court violated his

Fifth Amendment right against self-incrimination at his sentencing hearing.

{¶49} The letter in question was found in the glove box of a vehicle purchased by an

Akron University Safety Officer at auction. The return address on the envelope indicates that the

letter was sent by Mr. Young from jail, and the contents of the letter set out in great detail the

testimony he was asking the recipient to provide at his trial. The letter specifically requests that

the recipient say that Mr. Young was with him and two other individuals during the time of the

robbery. The letter also urges the recipient to do this for Mr. Young because Mr. Young would

do it for him if the roles were reversed.

{¶50} R.C. 2929.19 grants broad discretion to the trial court to consider any information

relevant to the imposition of a sentence. R.C. 2929.19(A) allows the state and the defendant to

“present information relevant to the imposition of sentence in the case[,]” and R.C. 2929.19(B)

requires the trial court to “consider the record, any information presented at the hearing by any

person pursuant to division (A) of this section, and, if one was prepared, the presentence

investigation report * * * and any victim impact statement * * *.” In other words, R.C. 2929.19

sets out a procedure less formal than an evidentiary hearing for interested parties to submit

arguments and information to the trial court. See State v. Bowser,

, 2010- 19

Ohio-951, ¶ 14 (2d Dist.), quoting Nichols v. United States,

(1994) (“[T]he

sentencing process is ‘less exacting than the process of establishing guilt.’”).

{¶51} We note that Mr. Young’s trial counsel never objected to the trial court

considering the letter, and he has not provided legal authority as to why the trial court’s

consideration of the letter resulted in a sentence that was contrary to law. See App.R. 16(A)(7).

{¶52} Nor do we find Mr. Young’s Fifth Amendment argument to be meritorious.

Again, Mr. Young’s argument is vague, and he has not explained how his Fifth Amendment

rights were implicated as he was not being compelled to speak about the letter. See App.R.

16(A)(7); Harmon,

. Accordingly, we fail to see how Mr. Young’s Fifth

Amendment rights were implicated here.7

Consecutive Sentences

{¶53} Finally, Mr. Young challenges the actual imposition of his sentences. This Court

utilizes the test set forth in State v. Kalish,

,

, when reviewing

criminal sentences.

First, [we] must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.

Id. at ¶ 26.

{¶54} R.C. 2929.14(C)(4) states that:

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

7 We note that our conclusion about Mr. Young’s Fifth Amendment right against self- incrimination is confined to the offenses in this case. We express no opinion as to whether the use of his statements at sentencing would be admissible in relation to other charges. 20

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:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post- release control for a prior offense.

(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.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

“[W]hile trial courts are not required to explain their reasoning on the record, they are required to

make the findings specified in R.C. 2929.14(C)(4) at the sentencing hearing on the record prior

to imposing consecutive sentences.” State v. Berkenstock, 9th Dist. Summit Nos. 26721, 26815,

.

{¶55} Mr. Young does not dispute that the trial court made the R.C. 2929.14(C)(4)

findings during his sentencing hearing. Instead, he appears to suggest that the trial court should

have provided detailed reasoning underlying the findings. However, that is not required of the

trial court, Berkenstock at ¶ 9, and Mr. Young has not argued that the findings were not

supported by the record. See App.R. 16(A)(7). Accordingly, based on Mr. Young’s limited

argument, we cannot conclude that the trial court erred in imposing consecutive sentences in this

case, and Mr. Young’s fourth assignment of error is overruled in its entirety.

III.

{¶56} Mr. Young’s assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed. 21

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. CONCURS.

HENSAL, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.