[Cite as State v. Oliver,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 212 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CHRISTIAN OLIVER ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 12 CR 590A

JUDGMENT: Affirmed in part. Reversed in part. Vacated and Remanded for Resentencing.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Desirae DiPiero 7330 Market Street Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: June 29, 2015 [Cite as State v. Oliver,

.] WAITE, J.

{¶1} Appellant Christian Oliver appeals his conviction in the Mahoning

County Common Pleas Court for the illegal conveyance of a prohibited item onto the

grounds of a detention facility, possession of cocaine, participation in a criminal gang,

and perjury. Appellant contends that the trial court erred in three separate instances

regarding jury instructions. However, there was no error as to two of the instructions

and Appellant is unable to show prejudice in regard to the remaining instruction.

{¶2} Appellant also appeals his November 14, 2012 sentencing entry. He

argues that the trial court did not make the requisite findings pursuant to R.C.

2929.14(C)(4) before imposing consecutive sentences. Despite Appellant’s

contentions, although the trial court did not specifically cite to the statute at the

sentencing hearing, it is not required to do so. It is evident by the record that the trial

court engaged in the appropriate analysis and made the requisite findings before

imposing consecutive sentences. Finally, Appellant correctly asserts that the trial

court erred in imposing a five year post-release control period when the maximum

period for a second-degree offense is three years. For the reasons provided, the

judgement of the trial court is affirmed in regard to the jury instructions and the

imposition of consecutive sentences. However, the trial court’s imposition of post-

release control is vacated and remanded to the trial court for resentencing solely on

this issue.

Factual and Procedural History

{¶3} The Youngstown Police Department began an investigation of 87 Hilton

Avenue in Youngstown based on information that drugs were being sold at this -2-

location. As part of the investigation, the police obtained a search warrant. During

the execution of the warrant, multiple officers observed a male wearing a red shirt

throw something off a balcony. An officer later retrieved a scale and a baggy of

cocaine from the area surrounding the balcony. Additional evidence was found at the

location which led police to believe that gang activity was taking place at the house.

The officers arrested three men who were found at the location, including Appellant.

At the county jail, a packet of cocaine was found in Appellant’s underwear.

{¶4} Each of the men were tried separately. At Terence Sly’s preliminary

hearing, Appellant testified that he threw the scale off the balcony, despite evidence

that it was actually Sly who tried to dispose of the contraband. As a result of

Appellant’s testimony, he was charged with perjury, and in the alternative, tampering

with evidence.

{¶5} Following a jury trial, Appellant was convicted of illegal conveyance of

prohibited items onto the grounds of a detention facility, a felony of the third degree;

enhanced possession of cocaine, a felony of the fourth degree; perjury, a felony of

the third degree; and participation in a criminal gang, a felony of the second-degree.

He was found not guilty of tampering with evidence. He was sentenced as follows:

one year of imprisonment on the illegal conveyance charge, one year on the

possession charge, one year on the perjury charge, and six years on the participation

charge. All of his sentences were to be served consecutively, for an aggregate total

of nine years. This timely appeal followed.

First, Second, and Third Assignment of Errors -3-

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GAVE THE

JURY AN INSTRUCTION ON COMPLICITY WHICH WAS

UNSUPPORTED BY ANY EVIDENCE AT TRIAL.

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IN [SIC] GAVE

THE JURY AN INCOMPLETE AND MISLEADING INSTRUCTION ON

THE ELEMENTS OF THE CRIME OF PARTICIPATING IN A

CRIMINAL GANG.

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON

"CONSCIOUSNESS OF GUILT".

{¶6} Because all of these assignments address jury instructions, we will

address them together. Appellant has raised as error three separate instances of

allegedly improper jury instructions. A trial “court must give all instructions that are

relevant and necessary for the jury to weigh the evidence and discharge its duty as

the factfinder.” State v. Griffin,

,

,

, citing State v. Comen,

,

(1990), paragraph two

of the syllabus.

{¶7} When determining whether jury instructions resulted in prejudicial error,

“the charge must be taken as a whole, and the portion that is claimed to be

erroneous or incomplete must be considered in its relation to, and as it affects and is

affected by the other parts of the charge.” State v. Hardy,

,

(1971). In other words, we view jury instructions as a whole. If from the -4-

entire charge it appears that a correct statement of the law was given in such a

manner that the jury could not have been misled, no prejudicial error results.

Complicity

{¶8} Appellant contends that the trial court erred in instructing the jury on

complicity. Appellant explains that he was charged solely as a principal offender and

there is no evidence in the record as to complicity. What is more, Appellant argues

that, over his objection, the trial court gave a second complicity instruction which only

served to aggravate the problem.

{¶9} In response, the state asserts that complicity is among the offenses that

can be used to establish a pattern of gang activity, which is an element of

participation in a criminal gang. The state explains that the court mentioned

complicity merely while defining a term found within a charged offense. The state

notes that the trial court clarified to the jury that Appellant had been charged as a

principal offender. Regardless, the state argues that even if this could be seen as

error it would be harmless as the state clearly argued that Appellant was the principal

in its closing argument.

{¶10} While providing jury instructions, the court defined the offense of

participation in a criminal gang as:

[P]ersons in a criminal gang have committed, attempted to commit,

conspired to commit, been complicitors in the commission of, or

solicited, coerced or intimidated another to commit, attempted to -5-

commit, conspired to commit, or were in complicity in the commission of

two or more of the following offenses * * *.

(Tr. Vol. V, pp. 992-993.)

{¶11} The trial court then defined several terms found within the definition,

including the term complicity, which Appellant claims was error. Before defining

complicity, the trial court stated: “[t]he defendant is charged with complicity in the

commission of the aforementioned crimes.” (Tr. Vol. V, p. 994.) The trial court then

defined complicity.

{¶12} After the trial court provided the jury instructions, the judge met with

both counsel in chambers to discuss the jury instructions that had just been given.

During the meeting, the prosecutor stated “the only other issue I have is we gave

them the complicity instruction without telling them the Defendant has been charged

as a principal, but in the alternate, you can charge him as a complicitor.” (Tr. Vol. V,

p. 1012.) Both the state and the defense requested that the definition of complicity

be taken out of the instructions before being handed to the jurors.

{¶13} The trial court determined that the instruction would not be removed.

The judge decided that another instruction would be given to clarify that Appellant

had been charged as a principal but, in the alternative, the jury could consider him as

a complicitor. The defense objected and stated that the complicity instruction should

have either been stricken or left as is, even though he had objected to the instruction.

{¶14} The jury was brought back into the courtroom and the court clarified the

issue of complicity by stating: -6-

And the issue of complicity, this Defendant, Christian Oliver, is charged

as a principal offender. In all offenses alleged in the indictment, he’s

charged as a principal offender, and as an alternative to a principal

offender, he may be considered a complicitor for purposes of

complicity.

(Tr. Vol. V, p. 1032.)

{¶15} On review, we will not find reversible error unless the record establishes

both that the jury instructions were erroneous and that Appellant suffered prejudice

as a result of the erroneous instruction. While we agree that the complicity

instructions were somewhat confusing, Appellant has neither alleged nor shown

prejudice. As Appellant is unable to demonstrate prejudice, he cannot show that

reversible error occurred. Accordingly, Appellant’s first assignment is without merit

and is overruled.

Criminal Gang Activity

{¶16} In his second assignment of error, Appellant alleges that the trial court’s

instructions on participation in a criminal gang were also erroneous. A trial court is

not required to give jury instructions verbatim and may provide instructions that

communicate the same legal principles using its own language. State v. Sneed,

,

(1992), citing State v. Nelson,

,

, (1973) paragraph one of the syllabus; State v. Hicks,

,

(1989).

{¶17} R.C. 2923.41(B)(1) provides: -7-

“Pattern of criminal gang activity” means, subject to division (B)(2) of

this section, that persons in the criminal gang have committed,

attempted to commit, conspired to commit, been complicitors in the

commission of, or solicited, coerced, or intimidated another to commit,

attempt to commit, conspire to commit, or be in complicity in the

commission of two or more of any of the following offenses: * * *.

{¶18} The trial court provided the following instruction to the jury:

The pattern of criminal gang activity means that persons in a criminal

gang have committed, attempted to commit, conspired to commit, been

complicitors in the commission of, or solicited, coerced or intimidated

another to commit, attempted to commit, conspired to commit, or were

in complicity in the commission of two or more of the following offenses:

(1) A felony or act committed by a juvenile that would be a felony if

committed by an adult; an offense of violence or an act committed by a

juvenile that would be an offense of violence if committed by an adult;

at least one of the offenses is a felony which occurred on or after

January 1st, 1999, and the last of which occurred within five years after

at least one of those offenses. The two or more offenses must have

been committed on separate occasions and/or by two or more persons.

(Tr. Vol. V, pp. 992-993.)

{¶19} Appellant argues that the trial court omitted the brief citation of

subsection (B)(2) from the instruction, thus the instruction was incomplete. -8-

{¶20} The body of subsection (B)(2) provides:

There is a “pattern of criminal gang activity” if all of the following apply

with respect to the offenses that are listed in division (B)(1)(a), (b), or

(c) of this section and that persons in the criminal gang committed,

attempted to commit, conspired to commit, were in complicity in

committing, or solicited, coerced, or intimidated another to commit,

attempt to commit, conspire to commit, or be in complicity in

committing:

(a) At least one of the two or more offenses is a felony.

(b) At least one of those two or more offenses occurs on or after

January 1, 1999.

(c) The last of those two or more offenses occurs within five years after

at least one of those offenses.

(d) The two or more offenses are committed on separate occasions or

by two or more persons.

{¶21} Appellant argues that the trial court failed to provide the complete

definition for the element pattern of criminal gang activity because it omitted a citation

to R.C. 2923.41(B)(2) even though the actual substance of this section was included

in the instruction. In response, the state argues that the trial court included all

aspects of the definition. Although the definition was not delivered verbatim, the

state urges that this was an effort to simplify the definition for the jury. -9-

{¶22} Again, in order to find reversible error in regard to the trial court’s jury

instructions, the record must reflect both an erroneous instruction and resulting

prejudice. There appears to be no case in Ohio which holds that the omission of a

subsection number from a jury instruction is error. While the trial court did omit the

words “subject to division (B)(2) of this section,” the trial court clearly included in the

instruction the substance of subsection (B)(2). Thus, the jury was given a complete

and accurate statement of the law. There is no error in the trial court’s instruction

and this record certainly does not reveal any prejudice to Appellant from the omission

of a cite to a statutory subsection when the trial court clearly communicated the

substance of the law to the jury. Appellant’s second assignment of error is without

merit and is overruled.

Consciousness of Guilt

{¶23} Appellant contends in his third assignment that the trial court improperly

provided the jury with instructions on consciousness of guilt. Appellant argues that

as the state failed to present evidence related to consciousness of guilt, there is no

evidence in the record to support this instruction.

{¶24} The state contends that the instruction was proper under State v.

Williams,

,

(1997). Pursuant to Williams, a

consciousness of guilt instruction is considered proper when there is evidence of the

“accused’s flight, escape from custody, resistance to arrest, concealment,

assumption of a false name, and related conduct.” The state argues that tampering

with evidence and perjury fall within “related conduct.” The state cites to State v. -10-

Lawson, 12th Dist. No. CA99-12-226,

, *9 (Apr. 30, 2001), which

held that tampering with evidence falls within such other related conduct. While the

state notes that no Ohio court has determined whether perjury also constitutes

related conduct for purposes of a consciousness of guilt instruction, it cites several

out-of-state cases which have found that perjury should be so included.

{¶25} Appellant’s argument is essentially two-fold: tampering with the

evidence and perjury charges do not support the consciousness of guilt instruction

and the instruction itself was incorrect.

{¶26} In examining Williams, it is apparent that a consciousness of guilt

instruction is proper when a defendant takes some action to suggest he is attempting

to conceal a crime or evade prosecution. A trait inherent in these actions is

dishonesty. For instance, concealment is a dishonest action as it is intended to cover

up some sort of wrongdoing and prevent others from learning the truth. It also

involves deliberate wrongdoing impacting the preservation of evidence. Providing a

false name also involves a dishonest act: lying about one’s identity in order to evade

prosecution.

{¶27} In the matter at hand, the relevant offenses, perjury and tampering with

evidence, are not specifically listed within Williams. Thus, the question before us is

whether perjury and tampering with evidence constitute “related conduct.” Similar to

the offenses discussed in Williams, perjury and tampering with evidence involve

elements of dishonesty and actions taken to mislead an investigation, evade

prosecution, and affect the preservation of evidence. Based on these characteristics, -11-

perjury and tampering with evidence are quite similar to those offenses specifically

listed within Williams.

{¶28} While not directly on point, the Fourth District used similar logic when it

evaluated whether an offense fell within “other acts” pursuant to Evid.R. 404(B) to

determine whether certain character evidence was admissible in State v. Leonard,

4th Dist. No. CA92-12,

, (May 21, 1993). In Leonard, the Court

cited McCormick on Evidence:

Accordingly, the following are considered under this general category of

admissions by conduct: a party's false statement about the matter in

litigation, whether before suit or on the stand; subornation of perjury;

fabrication of documents; undue pressure by bribery, intimidation, or

other means to influence a witness to testify favorably or to avoid

testifying; destruction or concealment of relevant documents or objects;

attempt to corrupt the jury; and hiding or transferring property in

anticipation of judgment.

Id. at *5, citing McCormick, 2 McCormick on Evidence, Section 265(e), at 190-191

(4th Ed. 1992).

{¶29} Although the issue in the instant case is different than the issue in

Leonard, the list of “other acts” that may be admissible shares certain traits with the

Williams “related conduct.” These traits reflect conduct that indicates an admission of

guilt or, in other words, consciousness of guilt. Based on this, we can only conclude -12-

that both evidence of perjury and of tampering with the evidence provide an

appropriate basis for giving a consciousness of guilt instruction to the jury.

{¶30} Turning to the question of whether the instruction itself was erroneous,

the trial court instructed as follows:

In this case, there is evidence that the Defendant tampered with

evidence and committed perjury. Tampering with evidence and perjury

do not, in and of itself, raise a presumption of guilt or a guilty connection

with the crime. That is, you’re instructed that you may not presume the

Defendant guilty from such evidence. However, you may infer a

consciousness of guilt regarding the evidence of the Defendant’s

tampering with evidence and perjury. A defendant’s tampering with

evidence, perjury and related conduct can be considered as evidence

of consciousness of guilt and, thus, of guilt itself.

(Tr. Vol. V, pp. 996-997.) The standard Ohio Jury Instruction which Appellant urges

should instead have been given states:

If you find that the facts do not support that the defendant (describe

defendant’s conduct), or if you find that some other motive prompted

the defendant’s conduct, or if you are unable to decide what the

defendant’s motivation was, then you should not consider this evidence

for any purpose…You alone will determine what weight, if any, to give

to this evidence.

(Appellant’s Brf., p. 11.) -13-

{¶31} We reviewed a similar instruction on consciousness of guilt in State v.

Wright, 7th Dist. No. 03MA112,

. In Wright, the following instruction

was given to the jury:

In this case, there was evidence that the defendant fled from the vicinity

of the crime following the alleged aggravated robbery of the vehicle of

James Grant, and again following the apprehension by the Campbell

Police Department. Fleeing from the vicinity of a crime does not, in and

of itself, raise a presumption of guilt or a guilty connection with the

crime. That is, you are instructed that you may not presume the

defendant guilty from such evidence. You may, however, infer a

consciousness of guilt regarding the evidence of the defendant's

alleged flight. A defendant's flight and related conduct can be

considered as evidence of consciousness of guilt and, thus, of guilt

itself.

Id. at ¶40. When compared to the jury instruction given in the instant case, the

instructions are indistinguishable. While not a verbatim recitation of the standard

instruction, both provide all of the required information in a slightly different format.

As we have in Wright upheld language identical to that used in the instant matter, it is

clear the language used by the trial court was not improper.

{¶32} Accordingly, the trial court did not err in instructing the jury as to

consciousness of guilt in this matter in any fashion. Appellant’s third assignment of

error is without merit and is overruled. -14-

Fourth Assignment of Error

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE

REQUISITE FINDINGS PRIOR TO IMPOSITION OF CONSECUTIVE

SENTENCES AND WHEN IT SENTENCED APPELLANT TO A FIVE

(5) YEAR PERIOD OF POST-RELEASE CONTROL.

{¶33} The General Assembly revived the language of former R.C. 2929.14(E)

under the renumbered R.C. 2929.14(C)(4). State v. Bonnell,

,

,

. The language in its current form provides:

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:

(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 -15-

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.

{¶34} Pursuant to R.C. 2929.14(C)(4), a trial court must make the

requisite findings before the court can overcome the presumption in favor of

concurrent sentences.

. The trial court must make the requisite

findings for consecutive sentencing both at the sentencing hearing and in the

sentencing entry.

Although a trial court is not required to recite the statute

verbatim or use “magic” or “talismanic” words, the record must clearly reflect

that the trial court engaged in the appropriate analysis. State v. Scott, 7th

Dist. No. 13 MA 47,

, citing State v. Bellard, 7th Dist.

No. 12-MA-47,

.

{¶35} Appellant contends that the trial court failed to make the requisite

findings under R.C. 2929.14(C) before imposing his consecutive sentences. The

state disputes Appellant’s contention and argues that the trial court stated that a

single term would not adequately reflect the seriousness of Appellant’s conduct, that

Appellant’s prior record shows that consecutive terms were necessary to protect the

public and that consecutive sentences would not disproportionately punish Appellant. -16-

{¶36} At the sentencing hearing, the trial court stated:

[R]ecognizing that in the interest of protecting the public from the

dangers inherent in gang activity, it is the opinion of the Court a single

term does not accurately reflect the seriousness of the conduct of the

Defendant, and that his criminal history does show consecutive terms

are needed to protect the public from anything further down the road as

he matures.

(11/2/12 Sentencing Hrg. Tr., p. 7.)

{¶37} In the instant case, while the trial court did not specifically cite R.C.

2929.14(C) at the sentencing hearing, the trial court did use certain phrasing from the

statute. The trial court recognized “the interest of protecting the public from the

dangers inherent in gang activity” and found that “a single term does not adequately

reflect the seriousness of the conduct of the Defendant.” The trial court also found

“his criminal history does show consecutive terms are needed to protect the public

from anything further down the road as he matures.” It is evident from the trial court’s

discussion that it made the requisite findings in R.C. 2929.14(C)(4) and subsection

(c).

{¶38} Ohio law also requires inclusion of the appropriate analysis in the

sentencing entry. In the instant case, the sentencing entry stated “that in order to

protect the public and not punish the Defendant disproportionately and pursuant to

§2929.14(C)(4) that a prison term is necessary due to a high risk of recidivism.”

(11/14/12 Sentencing J.E., p. 2.) Although the trial court again did not use the -17-

language of R.C. 2929.14(C)(4) verbatim, it is not required. As the trial court properly

indicated its R.C. 2929.14(C)(4) findings at the sentencing hearing and in the

sentencing entry, the imposition of consecutive sentences is not contrary to law.

Accordingly, Appellant’s argument is without merit and is overruled.

{¶39} Appellant next contends that the trial court erroneously sentenced him

to five years of post-release control when the specified period for a non-sex offense

second-degree felony is only three years. The state concedes the trial court’s error.

{¶40} At sentencing, the trial court informed Appellant “you will have a period

of time at that time of five years that you will be on what’s called post-release

control.” (11/2/12 Sentencing Hrg. Tr., p. 10.) In addition, the sentencing entry

states that “Defendant has been informed on this date that he is subject to five (5)

years post release control pursuant to ORC § 2967.28.” (11/14/12 Sentencing J.E.,

p. 2.) However, as Appellant argues, R.C. 2967.28(B)(2) provides that a three year

post-release control period is required for a second-degree felony, the highest

degree felony on which Appellant was convicted.

{¶41} As such, Appellant was sentenced to a longer post-release control

period than permitted by law. Appellant’s argument regarding the imposition of post-

release control has merit. We remand the issue to the trial court for resentencing

consistent with this Opinion.

Conclusion

{¶42} Appellant has not shown that the trial court erred in its jury instructions

regarding criminal gang activity and consciousness of guilt. Although the trial court’s -18-

instruction on complicity may have been confusing, Appellant has not alleged or

shown prejudice. The trial court complied with R.C. 2929.14(C)(4) and the record

demonstrates that the court made the requisite findings and stated these findings at

both the sentencing hearing and in the sentencing entry. However, the trial court

erroneously imposed a five-year post-release control period in this matter. We affirm

the trial court’s decision as it regards all jury instruction issues and consecutive

sentencing, and reverse in part and remand the matter only as to post-release

control.

Donofrio, P.J., concurs.

Robb, J., concurs.