author: WILLAMOWSKI, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Korey RANDLE, Defendant-Appellant.
    State of Ohio, Plaintiff-Appellee, v. Korey Randle, Defendant-Appellant.
    NO. 9-17-08 NO. 9-17-09
    Court of Appeals of Ohio, Third District, Marion County.
    Date of Decision: January 22, 2018
    Nathan D. Witkin for Appellant
    Kevin P. Collins for Appellee
   WILLAMOWSKI, P.J.

{¶ 1} Defendant-appellant Korey T. Randle ("Randle") appeals the judgments of the Marion County Court of Common Pleas, alleging (1) that the offenses of aggravated robbery and kidnapping should have merged at sentencing; (2) that the State violated ethical duties in the prosecution of this case; (3) that the trial court erred by overruling his motion for a mistrial after the prosecution requested a recess to "bolster" a State witness's testimony; and (4) that the jury returned a verdict against the manifest weight of the evidence. For the reasons set forth below, the judgments of the lower court are affirmed.

Facts and Procedural History

{¶ 2} At 7:00 in the morning on July 22, 2017, Matthew Thomas ("Thomas") left work and returned to his home on Cherry Street in Marion, Ohio. Trial Tr. 315. At roughly 10:00 that morning, Randle came to Thomas's house for a visit. Id. at 317. According to Thomas, he and Randle, at some point that morning, decided to commit a robbery. Id. at 322. They got in Thomas's car-which was a maroon Chrysler PT Cruiser with flames decaled on the front-and drove to Randle's house. Id. at 322, 354. Thomas testified that they picked up jumpsuits at Randle's house and then drove to Al's Country Market. Id. at 322, 324.

{¶ 3} Once they arrived at Al's Country Market, Thomas parked in the lot in front of the store. Id. at 324. Thomas testified that he got out of the car and walked into the front door of the store while Randle walked around the back of the store. Id. at 325. When Thomas entered the store, no one was behind the counter. Id. at 148, 326-327. Thomas testified that he then saw Randle walk around the corner with an employee of Al's Country Market-who was Paulette Bullion ("Bullion")-walking in front of him at knife point. Id. at 326-327.

{¶ 4} Thomas testified that he and Randle yelled orders to Bullion. Id. at 327. Bullion testified that, at this point, the two men ordered her to put the money from the register into a bag. Id. at 174. Once Bullion had emptied the contents of the cash register and the lottery box into a plastic bag, Thomas told Bullion to go to the back of the store. Id. at 349. Randle, holding his knife, walked Bullion to the back of the store where he directed Bullion to go into a closet. Id. at 352. Thomas and Randle then pushed a table and chair in front of the door. Id. at 352. After the table was secured in front of the door, Thomas grabbed Bullion's purse off of the table, and Randle and Thomas exited the store. Id. at 352-353. Shortly after Thomas and Randle left, a customer entered the store. Id. at 152. Bullion, from inside the closet, called out to the customer, who let Bullion out of the closet. Id. Bullion then called the police. Id.

{¶ 5} Thomas testified that he and Randle then drove out of the parking lot of Al's Country Market and went to the house of Iris Rogers ("Rogers"), who was Randle's cousin. Id. at 327, 426. At Rogers's house, Randle gave Thomas his half of the money that they had stolen from Al's Country Market. Id. at 332. Thomas stated that he spent this money on cocaine at Rogers's house. Id. at 332. From this location, Thomas began driving back to his house on Cherry Street. Id. at 334. Law enforcement had, by this time, identified the maroon PT Cruiser that Thomas drove to Al's Country Market as belonging to Thomas and were searching for Thomas. Id. When Thomas drove onto Cherry Street, the police saw his vehicle and apprehended him. Id. Thomas did not cooperate with the sheriff's office in this investigation. Id. at 338. He did cooperate with the prosecutor's office after a plea agreement had been negotiated. Id. at 378. At this point, Thomas implicated Randle in the offenses that were committed in Al's Country Market. Id.

{¶ 6} Randle was indicted on November 17, 2016. Doc. 1. Randle's trial began on February 2, 2017. Trial Tr. 1. At trial, Bullion testified about the incident. Id. at 147. On cross examination, she testified about the statement that she gave to the police. Id. at 178, 180. The Defense questioned her about a statement she made that indicated that one of the perpetrators sounded as though they had a foreign accent. Id. at 180. However, at trial, she explained that the accent sounded like an attempt by the perpetrator to disguise his voice. Id. She also stated that the perpetrator sounded clearer as he continued to speak. Id.

{¶ 7} At the beginning of Thomas's direct examination, the prosecutor asked Thomas whether he committed the robbery with another person. Id. at 310. In response, Thomas said, "I need a minute." Id. At this point, the prosecutor asked the trial judge for a brief recess and said, "I don't want to coach him." Id. The trial court ordered a recess of ten minutes over the objection of the Defense. Id. at 311. After the ten-minute recess, the Defense made a motion for a mistrial, arguing that the jury may have been compromised by this "prejudicial occurrence" and that Thomas should have been prepared to testify prior to coming to court on the day of trial. Id. at 311. In response the prosecutor said,

Your Honor, I don't think it's unusual for an accomplice witness to get cold feet. He's worried about his health and safety. He's worried about the health and safety of his family. I just reminded him that-what he's supposed to be doing here today. He needed to gird his loins for a moment. He's prepared to testify. I don't think a mistrial is necessary. I think that would be the strictest sanction. I don't know that the jury has been compromised at all.

Id. at 312. The trial court then overruled the Defense's motion for a mistrial. Id.

{¶ 8} Thomas then testified as to why he was "reluctant to testify." Id. at 314. Thomas explained that, while he was in the county jail, another inmate was attacked. Id. Thomas identified the person who had perpetrated this attack. Id. at 314-315. Ten months after Thomas testified in that case, he was called a "snitch" by another inmate who struck him in the face with "a lock in a sock." Id. at 315-316. The force of this blow caused scarring to his face and broke his jaw. Id. at 315. As the result of this prior incident, Thomas expressed concern at trial that he would be labeled a "snitch" and would be attacked again. Id. at 316.

{¶ 9} On cross examination, the Defense discussed several false statements that Thomas had made to the grand jury. Id. at 398-407. Thomas admitted that he lied to the grand jury about his involvement in these crimes. Id. at 401. On redirect, he testified, however, that he did not lie to the grand jury about Randle's involvement in these crimes. Id. at 410, 424. He also pointed to the fact that his statements about Randle's involvement before the grand jury were consistent with his statements before the trial court. Id. The Defense also questioned Thomas about his three prior convictions, several false statements he made to the police, his reluctance to testify at trial about Randle's involvement, and the terms of his plea agreement. Id. 385, 386, 394, 409-410.

{¶ 10} The State also called several witnesses who connected Randle and Thomas to each other on the day of the incident. Kyle J. Hopkins was one of Thomas's neighbors and testified that he saw Randle and Thomas together on the morning of July 22, 2016. Id. at 445. Angelo Flores then testified that he saw Randle on Cherry Street shortly after Thomas was arrested and that he gave Randle a ride back to Randle's house. Id. at 439, 442. Rogers testified that Randle and Thomas were at her house on July 22, 2016. Id. at 427. The prosecution also introduced a recording of a phone call that Thomas made from jail in which he speaks of being with Randle on July 22, 2016. Id. at 361. The prosecution also called Peggy Romine ("Romine"), who works at the County Corrections Center, to authenticate documents that showed Randle deposited funds into Thomas's commissary account while Thomas was in jail. Id. at 272-273.

{¶ 11} On February 6, 2017, the jury found Randle guilty of aggravated robbery in violation of R.C. 2911.01(A)(1) and kidnapping in violation of R.C. 2905.01(A)(2). Doc. 98, 99. Randle filed his timely notice of appeal on March 31, 2017. Doc. 127. On appeal, Randle raises the following four assignments of error:

First Assignment of Error

The offenses of aggravated robbery and kidnapping should have merged in this matter.

Second Assignment of Error

In this matter, the State violated an ethical duty to reveal that the indictment in this matter was based on perjured testimony, demonstrate [sic] that the perjury had been remedied before proceeding to trial, and reveal [sic] any promises of immunity regarding such perjury.

Third Assignment of Error

The trial court improperly overruled appellant's motion for a mistrial regarding the State's request for a recess to bolster their witness's testimony.

Fourth Assignment of Error

The jury's decision to convict the appellant was against the manifest weight of the evidence.

We will consider these assignments of error in the order in which they were presented in the appellant's brief.

First Assignment of Error

{¶ 12} In his first assignment of error, Randle argues that the offenses of kidnapping and aggravated robbery should have merged upon sentencing because these acts were committed together and there was "not * * * a point in which one offense ends and the other offense begins." Appellant's Brief, 4. Specifically, the Defense argues that the robbery began when the appellant brandished a weapon in front of the victim and ended when the appellant took the victim's purse and left the store. The Defense contends that the appellant ordered the victim into a locked closet in between the two events that constituted the beginning and end of the robbery. Thus, he claims that these two offenses should merge because the robbery had not ended by the time he committed the crime of kidnapping.

Legal Standard

{¶ 13} "Both R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple convictions for the same conduct." State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 28, quoting State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:

(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.
(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.

R.C. 2941.25(A), (B).

{¶ 14} Under Ohio law, if a defendant is charged with allied offenses-which are multiple crimes committed with the same conduct-the "trial court is required to merge [these offenses] at sentencing." Sergent at ¶ 28, quoting Underwood at ¶ 27. To determine "whether two offenses are...subject to merger under R.C. 2941.25, the conduct of the accused must be considered." State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.

However, multiple convictions are permitted 'if we answer affirmatively to just one of the following three questions: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separate? And (3) Were they committed with a separate animus or motivation?'

(Citations omitted.) State v. Howton , 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, 2017 WL 2628060, ¶ 14, quoting State v. Bailey , 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, 2015 WL 4556726, ¶ 76, citing Ruff at paragraph three of the syllabus.

{¶ 15} "If the offenses are committed with the same conduct but with a separate animus, multiple convictions can be sustained." State v. Brentlinger , 2017-Ohio-2588, 90 N.E.3d 200, ¶ 28 (3d Dist.), citing State v. Hadding , 3d Dist. Auglaize No. 2-12-14, 2013-Ohio-643, 2013 WL 684655, ¶ 14. "The Supreme Court of Ohio has defined animus as "purpose, or more properly, immediate motive." Brentlinger at ¶ 28, quoting State v. Logan , 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). "Whether offenses are allied offenses of similar import is a question of law that this court reviews de novo." State v. Potts , 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 93, citing State v. Stall , 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, 2011 WL 5353506, ¶ 36.

Legal Analysis

{¶ 16} In this case, the offenses of robbery and kidnapping were each committed with a separate animus. The crime of robbery often involves the crime of kidnapping. State v. Jenkins , 15 Ohio St.3d 164, 198, 473 N.E.2d 264 (1984), fn. 29. As Randle was leading Bullion towards the front of the store at knife point, he was kidnapping her for the purpose of facilitating a robbery. At this point, the two offenses were committed pursuant to the same animus: Randle's intent to perpetrate a robbery motivated him to commit the offense of kidnapping. However, after Bullion had emptied the contents of the cash register and the lottery box into the bag, Randle ordered Bullion into the back room where he locked her in a closet.

{¶ 17} While walking Bullion to the front of the store at knife point was incidental to the crime of robbery, walking her to the back of the store at knife point and then locking her in a closet was not a part of facilitating the robbery. The offense that was committed when Randle locked Bullion in a closet was not necessary to further the robbery and was not incidental to the commission of the robbery. Rather, this separate series of actions was undertaken for the purpose of facilitating Randle's escape. His intent to commit a robbery was no longer what animated his actions. At the time the robbery was completed, his "immediate motive" changed: he was now motivated by a desire to evade apprehension. Locking Bullion in a closet prevented her from notifying the authorities and gave him more time to escape. Since a different animus motivated each of these offenses, the crime of kidnapping in violation of R.C. 2905.01(A)(2) was committed in addition to the crime of robbery. These crimes are not, therefore, allied offenses subject to merger. For these reasons, Randle's first assignment of error is overruled.

Second Assignment of Error

{¶ 18} In his second assignment of error, Randle argues that the State violated several ethical duties while prosecuting this case. First, the Defense alleges that the State used testimony that contained perjury to secure an indictment against the appellant. Second, the Defense claims that the State did not disclose the fact that the grand jury heard testimony that contained perjury, which, according to the Defense, was evidence that was favorable to the defendant under Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Third, the Defense suggests that the State may have granted immunity to one of the key witnesses against Randle without disclosing this fact. We will address each of these arguments in turn.

Legal Standard for the Perjury Issue

{¶ 19} R.C. 2921.11 defines the offense of perjury and reads, in its relevant part, as follows:

(A) No person, in any official proceeding, shall knowingly make a false statement under oath or affirmation, or knowingly swear or affirm the truth of a false statement previously made, when either statement is material.
(B) A falsification is material, regardless of its admissibility in evidence, if it can affect the course or outcome of the proceeding. It is no defense to a charge under this section that the offender mistakenly believed a falsification to be immaterial.

"Based upon the plain language of R.C. 2929.11(B), a false statement is material if it can affect the outcome of a proceeding. R.C. 2929.11(B) does not require that the outcome actually be affected." (Emphasis sic.) State v. Douglas , 3d Dist. Marion No. 9-05-24, 2005-Ohio-6304, 2005 WL 3150302, ¶ 14.

Legal Analysis for the Perjury Issue

{¶ 20} Randle's first argument alleges that the prosecution based its indictment on perjured testimony from Thomas. While the Defense cross examined Thomas, defense counsel introduced the false statements that Thomas made to the grand jury. Further, Thomas admitted at trial that he had lied to the grand jury in making these statements. However, these false statements did not constitute perjury as these were not material statements. See State v. Widmer , 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, 2013 WL 142041, ¶ 41, quoting Monroe v. Smith , 197 F.Supp.2d 753, 762 (E.D.Mich.2001) (holding "the fact 'that a witness contradicts [himself] or changes [his] story also does not establish perjury.' "). The grand jury was convened to determine whether an indictment should be issued against Randle. Thus, in this context, a false statement would have had to have been able to affect the decision as to whether an indictment should be issued against Randle in order to be material.

{¶ 21} The false statements that Thomas made did not address Randle's activities in the matter before the grand jury. Rather, the false statements that Thomas made to the grand jury addressed his involvement in this crime and marginalized his role in committing this offense. The statements that Thomas made to the grand jury about Randle's criminal activities were consistent with the statements that he made about Randle at trial. In the absence of these false statements, the indictment would not have been based on insufficient evidence. See State v. Cruise , 4th Dist. Washington No. 85-CA-28, 1987 WL 7009, *4 (Feb. 24, 1987), citing 2 La Fave Criminal Procedure 312 Sec. 15. Since the grand jury was considering whether to indict Randle, these particular false statements could not have had an effect on the outcome of the proceeding because the false statements did not address Randle's activities. Compare State v. Wimbush , 5th Dist. Richland No. 2005CA0024, 2005-Ohio-6436, 2005 WL 3293769, ¶ 15. Thus, the prosecution did not violate an ethical duty in this regard as alleged by Randle.

Legal Standard for the Brady Violation Issue

{¶ 22} A Brady violation occurs "[w]hen the prosecution withholds material, exculpatory evidence in a criminal proceeding * * *." State v. Johnston , 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). See Brady, supra, at 86-87, 83 S.Ct. 1194. Specifically, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, supra, at 87, 83 S.Ct. 1194.

[I]n determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome."

Johnston at 61, 529 N.E.2d 898, quoting United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). "The defendant has the burden to prove a Brady violation rising to the level of a due-process violation." State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 102.

Legal Analysis for the Brady Violation Issue

{¶ 23} In his second argument under this assignment of error, Randle alleges that the prosecution committed a Brady violation by failing to disclose the perjured statements made by Thomas to the grand jury. The Defense, however, did not carry the burden of establishing that a due process violation occurred because the Defense cannot demonstrate that there is a reasonable probability that the outcome would have been different had the Defense received these statements in a different manner. See Johnston at 61, 529 N.E.2d 898.

{¶ 24} By the time of trial, the Defense had the false statements that Thomas made to the grand jury in their possession and had time to review these statements before Thomas testified. See State v. Iacona , 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), citing State v. Wickline , 50 Ohio St.3d 114, 116, 552 N.E.2d 913, 917 (1990). Further, the Defense was able to introduce these false statements on cross examination while Thomas was testifying. Since the Defense had these statements by the time of trial and introduced them on cross examination, Randle cannot establish a due process violation in this case because the Defense did not show how the manner in which the Defense received these statements would have affected the outcome of the case.

Legal Standard for Alleged Promise of Immunity Issue

{¶ 25} " App.R. 9(A)(1) limits the record on appeal to '[t]he original papers and exhibits thereto filed in the trial court, the transcript of the proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court * * *.' " State v. White , 3d Dist. Seneca No. 13-14-29, 2015-Ohio-817, 2015 WL 1000342, ¶ 16, quoting App.R. 9(A)(1). See State v. Snyder , 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, 2013 WL 2152555, ¶ 16. "Since a reviewing court can only reverse the judgment of a trial court if it finds error in the proceedings of such court, it follows that a reviewing court should be limited to what transpired in the trial court as reflected by the record made of the proceedings." State v. Ishmail , 54 Ohio St.2d 402, 405-406, 377 N.E.2d 500, 502 (1978). "A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." Id. at syllabus.

Legal Analysis for Alleged Promise of Immunity Issue

{¶ 26} In this argument, the Defense alleges that the prosecution may have given Thomas a promise of immunity in exchange for his testimony at trial and failed to disclose this alleged immunity agreement. However, no evidence in the record suggests a promise of immunity was extended to Thomas. On direct appeal, our review of the trial court's determinations is limited to the contents of the record. The Defense did not present any information at trial that would substantiate this claim, making this argument purely speculative.

{¶ 27} Under this assignment of error, Randle advanced three arguments that purportedly supported the assertion that the State violated various ethical duties in this prosecution of this case. However, after examining these three arguments, we do not find evidence that the State violated its ethical duties as alleged by appellant. For this reason, Randle's second assignment of error is overruled.

Third Assignment of Error

{¶ 28} In his third assignment of error, Randle asserts that trial court erred by failing to grant his motion for a mistrial after the State asked for a recess to speak with one of its witnesses. Randle claims that the State requested this recess "for the specific purpose of affecting [a] witness's testimony." Appellant's Brief, 8. While the State explicitly stated that it was not going to coach Thomas, Randle alleges that the recess "seemed to be aimed at talking to the witness about how he should testify." Id. Randle contends that this practice violated his due process rights, his right to a fair trial, and his right to confrontation.

Legal Standard

{¶ 29} "The grant or denial of a mistrial lies within the sound discretion of the trial court. However, a trial court need not declare a mistrial unless 'the ends of justice so require and a fair trial is no longer possible.' " State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 173, quoting State v. Franklin , 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). Thus, a trial court's decision to deny a motion for a mistrial will not be reversed absent an abuse of discretion. State v. Garner , 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634 (1995). "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Ortega , 3d Dist. Hancock No. 5-16-17, 2017-Ohio-239, 2017 WL 277560, ¶ 10, quoting State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149 (1980). "When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court." State v. Thompson , 2017-Ohio-792, 85 N.E.3d 1108, ¶ 11, quoting In re Jane Doe 1 , 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

Legal Analysis

{¶ 30} In this argument, the appellant asserts that the trial court should have declared a mistrial after the prosecution requested a recess to speak with Thomas, alleging that the State coached Thomas during the recess. First, we note that the trial was an adversarial proceeding in "which the defense counsel was free to explore upon examination any coaching or preparation of the [S]tate's witnesses." State v. King , 3d Dist. Seneca No. 13-01-20, 2002 WL 479159, *3 (March 29, 2002).

The opposing counsel in the adversary system is not without weapons to cope with 'coached' witnesses. A prosecutor may cross-examine a defendant as to the extent of any 'coaching' during a recess , subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant's credibility, if it had developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.

(Emphasis added.) King at *3-4, quoting Geders v. United States , 425 U.S. 80, 89-90, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

{¶ 31} Second, the record does not suggest that Thomas was coached during the recess. See State v. Patterson , 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647, 2013 WL 1777258, ¶ 51-52. On cross examination, the Defense questioned Thomas about the terms of his plea agreement and his reluctance to testify. Trial Tr. 409-410. In this process, the Defense questioned Thomas about whether his plea agreement was discussed during the recess, but the Defense did not ask questions inquiring into whether Thomas was coached during the recess. Id. For this reason, there is no evidence in the record that suggests that Thomas was coached during the recess. While the Defense alleges on appeal that the purpose of the recess was to coach Thomas, this assertion is speculative as no facts in the record support this claim. On direct appeal, our review is limited to matters in the record.

State v. Martin , 151 Ohio App.3d 605, 2003-Ohio-735, 784 N.E.2d 1237, ¶ 53. We cannot reverse a trial court on the basis of speculation about matters outside of the record. Id.

{¶ 32} Third, we note that the trial court is given "control [of] all proceedings during a criminal trial * * *." R.C. 2945.03. The trial judge had the discretion to order a recess to ensure that the trial unfolded in an orderly process. State v. Heiberger , 6th Dist. Erie No. E-84-54, 1985 WL 7544, *2 (July 19, 1985). We do not find evidence in the record that suggests the trial court abused this discretion in ordering the recess or in denying Randle's motion for a mistrial. For these reasons, Randle's third assignment of error is overruled.

Fourth Assignment of Error

{¶ 33} In his fourth assignment of error, Randle asserts that the verdict in this case was against the manifest weight of the evidence. In support of this contention, he points to the testimony of several of the State's witnesses. Much of this argument focuses on Thomas's credibility as a witness and on one alleged inconsistency in Bullion's testimony. Based on these "holes" in the State's case, he argues that his conviction was against the manifest weight of the evidence and should, therefore, be reversed.

Legal Standard

{¶ 34} "In a manifest weight analysis, 'the appellate court sits as a 'thirteenth juror' * * *.' " State v. Davis , 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, 2017 WL 2241604, ¶ 17, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

On appeal, courts "must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' "

Brentlinger, supra, at ¶ 36, quoting Thompkins at 387, 678 N.E.2d 541. "A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses." State v. Sullivan , 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38, quoting State v. Coleman , 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014 WL 6725795, ¶ 7. "Only in exceptional cases, where the evidence 'weighs heavily against the conviction,' should an appellate court overturn the trial court's judgment." State v. Haller , 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

Legal Analysis

{¶ 35} The State, at trial, introduced a security camera recording that showed two men robbing Al's Country Market and kidnapping Bullion. Ex. 1. The State also called Bullion to testify about the robbery and the kidnapping. Trial Tr. 149-167. Thomas's testimony, however, is what identified Randle as one of the two men who perpetrated the offenses in the store. Id. at 322, 325. Thomas's testimony also provided evidence that substantiated each of the essential elements of aggravated robbery and kidnapping. Id. at 322-323, 327, 349-351. Several other witnesses were able to connect Randle to Thomas on the day of the incident and were, thus, able to corroborate aspects of Thomas's account. Hopkins testified that he saw Randle and Thomas together before the incident at Al's Country Market. Id. at 445. Flores testified that he saw Randle on the day of the incident at the location on Cherry Street where Thomas was arrested.

Id. at 438, 442. Rogers testified that Randle and Thomas were at her house on the day of the incident, which corresponded to Thomas's account of what transpired on July 22, 2016. Id. at 427. Finally, Romine testified that Randle deposited funds into Thomas's commissary account while Thomas was in jail. Id. at 271-272.

{¶ 36} The Defense, while cross examining Thomas, introduced the false statements that Thomas had made to the grand jury. Id. at 398-407. These statements showed that Thomas's description of his involvement in this crime at trial and his description of his involvement in this crime to the grand jury were inconsistent. Id. Thomas admitted that he had lied to the grand jury and to the police immediately after his arrest. Id. at 338, 368. Further, Thomas also admitted that he had a conviction for domestic violence, a conviction for possession of heroin, and a conviction for obstruction of justice. Id. at 383. Finally, the Defense questioned Thomas about his reluctance to testify and the terms of his plea agreement. Id. at 386-394, 409-410. Similarly, the Defense, while cross examining Bullion, questioned her about whether one of the perpetrators had a foreign accent. Id. at 180. In response, Bullion explained that she told the police that the man sounded as though he was trying to disguise his voice with an accent and that he got easier to understand as he spoke. Id. at 178, 180.

{¶ 37} After reviewing all of the evidence in the record, we do not find that the verdict was against the manifest weight of the evidence. The jurors, as the finders of fact in this case, could have reasonably found that Thomas's testimony provided an accurate account of Randle's actions on July 22, 2016. Similarly, the jurors could have accepted the explanation that Bullion provided for the alleged contradiction between her statement to the police and her testimony at trial. After examining the record, we do not find evidence in the record that the jury lost its way. For these reasons, Randle's fourth assignment of error is overruled.

Conclusion

{¶ 38} This Court has found no error prejudicial to the appellant in the particulars assigned and argued in appellate case number 9-17-08. In appellate case 9-17-09, Randle was sentenced for violation of the terms of his community control due to the conviction in appellate case 9-17-08. As his assignments of error in appellate case 9-17-08 have been overruled, the trial court did not err in revoking his community control in appellate case number 9-17-09. For these reasons, the judgments of the Marion County Court of Common Pleas are affirmed.

Judgments Affirmed

SHAW and PRESTON, JJ., concur.

      Under Ruff , "offenses do not merge unless they involve (1) the 'same conduct,' (2) a 'similar import,' and (3) a single 'animus.' " Ruff at ¶ 38. Thus, the Defense's argument fails if any one of these three factors is absent in this case. Since we find that the facts of this case clearly demonstrate that the offense of kidnapping was committed with a separate animus from the offense of robbery, we will limit our analysis to determining whether these offenses had separate motivations, and we will not analyze the facts of this case to determine whether the other two factors are present.

      In Cruise , the Court held, "No Ohio cases have been cited and we are unaware of any which authorizes dismissal of an indictment because perjured testimony was presented to the grand jury." Cruise at *4. Similarly, in this case, appellant does not cite any Ohio law. Rather, appellant argues that the indictment should have been dismissed as this is the practice in federal court. Since we have determined that the indictment was not based upon perjured testimony, we need not address the argument that this Court should follow the practices of federal courts.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Darrell BROWN, Defendant-Appellant.
    NO. 16 MA 0161
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: January 22, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman, St., 6th Floor Youngstown, Ohio 44503, For Plaintiff-Appellee.
    Atty. Michael Kivlighan, 3685 Stutz Drive, Suite 100, Canfield, Ohio 44406, For Defendant-Appellant.
   JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Darrell Brown appeals from his conviction entered in Mahoning County Common Pleas Court for felonious assault, menacing by stalking, and assault.

{¶ 2} Three issues are raised in this appeal. First, Appellant argues he was denied effective assistance of counsel when the trial court denied his request for appointment of new counsel. He argues appointment of new counsel was required because there was a complete breakdown in communication with his appointed counsel. Alternatively, he requested a continuance to prepare for trial. The trial court denied this request also. Appellant contends the trial court's denial of the motion was an abuse of discretion. Second, Appellant asserts the conviction for menacing by stalking is not supported by sufficient evidence. Lastly, he argues the imposition of a consecutive sentence is contrary to law because the record does not support the trial court's findings.

{¶ 3} For the reasons expressed below, all arguments lack merit. Appellant's conviction is affirmed.

Statement of the Facts and Case

{¶ 4} At approximately 12:30 a.m. on July 31, 2016 an argument occurred between Jeronica Wolfe and Appellant at Jeronica's house located 3948 Sunset Boulevard in Boardman Township, Ohio. Trial Tr. 180-181. The argument was about the use of a car. Trial Tr. 181-184. Jeronica and Appellant had known each other for ten years and at some point were in a relationship. Trial Tr. 179-180. Celeste Wolfe, Jericona's adult daughter who resided with her, was upstairs getting ready to go out while the argument was occurring. Trial Tr. 208. Celeste came downstairs to tell Appellant to leave the residence. Trial Tr. 208. He allegedly attacked her while she was coming down the stairs and punched her multiple times and then ran out of the house with the keys to Celeste's car. Trial Tr. 181-182, 208. Appellant admitted to hitting Celeste four to eight times, but claims Celeste swung at him first and initiated the fight. Trial Tr.

273. The altercation resulted in Celeste sustaining injuries; she lost consciousness, her nose was broken, and she had a facial laceration. Trial Tr. 213, 221-222.

{¶ 5} After regaining consciousness, Celeste, Jeronica, and a few other people went in two separate cars to look for Appellant to get Celeste's keys. Trial Tr. 185, 209. They drove to Judson Avenue and found Appellant. Trial Tr. 185, 209. Appellant had a gun on his person, ran in the middle of the street, and yelled he would kill them. Trial Tr. 186, 209. Appellant admitted he had a gun in the middle of the street and used it to get them to leave. Trial Tr. 276. Celeste and Jeronica immediately left and returned to the residence on Sunset Boulevard. Trial Tr. 186, 209.

{¶ 6} While Jeronica and Celeste were looking for Appellant, Boardman police officers arrived at the residence on Sunset Boulevard. Trial Tr. 244-245. The officers had been dispatched to the house after receiving an "open ended" 911 call with screaming and fighting heard in the background. Trial Tr. 244. When the officers arrived at the residence the front door was ajar and no one was home. Trial Tr. 244. Jeronica and Celeste arrived at the house after the officers determined the house was clear. Trial Tr. 245.

{¶ 7} Photographs were taken of Celeste and the stairs, and statements were taken. Celeste was then taken to the hospital in an ambulance. Trial Tr. 187. The emergency room doctor treated her for a closed head injury, nasal bone fracture, and facial laceration. Trial Tr. 236.

{¶ 8} At around 8:30 a.m. on July 31, Appellant returned to the Sunset Boulevard residence. Trial Tr. 188, 226-227. Jeronica's other adult daughter, Krystal, was sleeping on the living room floor and was awakened to the sound of Appellant saying "yo-yo-yo" at the window. Trial Tr. 226. Jeronica and Krystal testified they called the police. Trial Tr. 189, 227. Appellant used a key and tried to push his way into the house, but Krystal pushed back and tried to keep him out of the house. Trial Tr. 189-190, 227. An altercation ensued between Appellant and Krystal in the driveway and backyard. Trial Tr. 190, 227. Appellant admitted to hitting and kicking Krystal in the face during this altercation. Trial Tr. 279.

{¶ 9} When the police arrived, Appellant fled on foot. Trial Tr. 252. He was apprehended in Youngstown by a Youngstown police officer. Trial Tr. 254.

{¶ 10} Complaints were filed against Appellant in Mahoning County Court Number 2, Boardman, for resisting arrest, burglary, assault, and obstructing official business. 8/2/16 Complaint. At the initial appearance, Appellant was held in direct contempt for statements he made to the court while walking away from the bench. 8/2/16 J.E. A preliminary hearing was held on August 9, 2016 and Appellant was bound over to the Mahoning County Common Pleas Court. 8/9/16 J.E.

{¶ 11} Thereafter, Appellant was indicted for felonious assault in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; menacing by stalking in violation of R.C. 2903.211(A)(1), a fourth-degree felony; burglary in violation of R.C. 2911.12(A)(2)(D), a second-degree felony; and assault in violation of R.C. 2903.13(A), a first-degree misdemeanor. 9/1/16 Indictment.

{¶ 12} Defense counsel made requests for discovery, moved for Appellant to wear civilian clothes at trial, and filed a motion in limine. 9/14/16 and 9/23/16 Motions. A pretrial was held on September 21, 2016, the Wednesday before trial. At that pretrial, Appellant asked for new counsel. 9/27/16 J.E. The trial court denied the motion. 9/27/16 J.E. On the day of trial, Appellant through counsel renewed the motion for new counsel or, in the alternative, moved for a continuance. 10/5/16 J.E.; Trial Tr. 7-20. The trial court denied the requests. 10/5/16 J.E; Trial Tr. 7-20.

{¶ 13} The case proceeded to trial. The state's case consisted of testimony from the victims Jeronica, Celeste, and Krystal; two officers from the Boardman Police Department; and the Emergency Room Doctor. Appellant testified on his own behalf. The jury found Appellant guilty of felonious assault, menacing by stalking, and assault. The jury found him not guilty of burglary. 10/5/16 J.E.

{¶ 14} Appellant was sentenced to an aggregate term of nine and a half years. 10/7/16 J.E.; Sentencing Tr. 15. He received eight years for felonious assault, eighteen months for menacing by stalking, and six months for assault. 10/7/16 J.E.; Sentencing Tr. 15-16. The six month assault sentence was ordered to be served concurrently with the other sentences. 10/7/16 J.E.; Sentencing Tr. 16. The felonious assault and menacing by stalking sentences were ordered to be served consecutively. 10/7/16 J.E.; Sentencing Tr.16. The trial court made consecutive sentence findings at the sentencing hearing and in the judgment entry. 10/7/16 J.E.; Sentencing Tr. 16.

{¶ 15} Appellant timely appealed his conviction.

First Assignment of Error

"Darrell Brown was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution."

{¶ 16} Appellant asserts he was denied his right to effective assistance of counsel because the trial court did not grant his request for substitute counsel. He contends there was a complete breakdown in communication between himself and his counsel and thus, substitute counsel was warranted. Alternatively, he argues the trial court abused its discretion when it denied his motion for a continuance. Appellant argues since the trial court denied his request for alternative counsel, it should have granted his request for a continuance so that he and his attorney could prepare for trial.

{¶ 17} The decision whether to remove court-appointed counsel and allow substitution of new counsel is within to the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion. State v. Murphy , 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001) ; State v. Brown , 7th Dist. No. 12 MA 198, 2014-Ohio-4420, 2014 WL 4960769, ¶ 7. An "abuse of discretion" implies an arbitrary, unreasonable, or unconscionable attitude on the part of the court. State v. Adams , 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

{¶ 18} An indigent defendant does not have a right to choose a particular attorney; rather, such a defendant "has the right to professionally competent, effective representation." State v. Evans , 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 30 (7th Dist.), citing State v. Murphy , 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). "Competent representation does not include the right to develop and share a 'meaningful attorney-client relationship' with one's attorney." State v. Gordon , 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.).

{¶ 19} In order for the court to discharge a court-appointed attorney, "the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." State v. Henness , 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), quoting State v. Coleman , 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus. That said, the right to counsel must be balanced against the court's authority to control its docket, as well as its awareness that a "demand for counsel may be utilized as a way to delay the proceedings or trifle with the court." United States v. Krzyske , 836 F.2d 1013, 1017 (C.A.6 1988) ; see, also, State v. Murphy , 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001).

{¶ 20} On the day of trial, September 26, 2016, counsel for Appellant renewed Appellant's motion for appointment of new counsel. The original motion had been made one week prior to trial at the September 21, 2016 pretrial hearing. The pretrial hearing was not transcribed for our review. However, on the day of trial the events that transpired at the September 21, 2016 pretrial were discussed in conjunction with the renewed request to appoint new counsel. Trial Tr. 8-18. The basis for the original motion and the renewed motion was a complete breakdown of communication between trial counsel and Appellant. Trial Tr. 8-9. Trial counsel indicated that since the indictment Appellant had refused to communicate with counsel. Trial Tr. 9. The trial court overruled the motion because Appellant was causing counsel to be ineffective:

He's entitled to the effective assistance of counsel but he cannot cause the ineffectiveness by his refusal to cooperate. He can't make you ineffective and then argue that counsel is ineffective. So his refusal to converse with you is not a grounds for removing you.

Trial Tr. 13.

{¶ 21} Appellant argues the above demonstrates there was a complete breakdown of communication that warranted the appointment of new counsel. Furthermore, he contends the trial court abused its discretion when it did not permit him to address the court about his complaint with his attorney.

{¶ 22} The Tenth Appellate District has stated, "when a defendant expresses concerns or complaints regarding appointed counsel, the trial court has a duty to inquire into the nature of the complaint, make such inquiry a part of the record, and make a decision on the record." State v. Bowman , 10th Dist. No. 06AP-149, 2006-Ohio-6146, 2006 WL 3365506, ¶ 35. When the motion was renewed on the day of trial, the trial court did instruct Appellant not to answer or say anything unless he was called upon. Trial Tr. 8. A reading of the trial transcript reveals this instruction was given because at the September 21, 2016 pretrial, when the motion for new counsel was made Appellant did not act appropriately:

THE COURT: The pretrial was last Thursday?
MR. MASZCZAK [the prosecutor]: Wednesday.
THE COURT: Wednesday. Mr. Brown, you are not to answer or to say anything unless you're called upon. I'm talking to your lawyer. So I don't want you answering anything.
If you do, if you act inappropriately at trial-the only reason that I'm mentioning this to you, normally I don't have to do this, is because of your conduct the other day at the pretrial.
When we're in trial and I have a jury sitting here, any type of misconduct by you at any time, you blurting something out, you laughing, you shaking your head, you disagreeing, you showing anything but sitting there like a perfect gentleman is going to result in a contempt of court charge. So I want you to be aware of that. I'm not somebody to mess around with.
The rules by this court are going to be followed by everybody. So you are not permitted to respond, react, show disappointment or approval or disapproval, or whatever. You just-your place is to watch this; let this thing go on. If you choose to participate, that would be by testifying. It's not by anything else. So I don't want to hear your voice again while I'm talking to these lawyers. Okay. Go ahead.

Trial Tr. 8-9.

{¶ 23} The trial court also noted at the sentencing hearing the inappropriate behavior at the pretrial:

During the course of the trial the court-let me say this first: To listen to you today and to listen to you at your pretrial last week is like you're two different people. You're a whole lot different today than you were last week. It kind of fascinates me. I don't really understand why. I don't really care to know why. But two completely different people.

Sentencing Tr. 12.

{¶ 24} Furthermore, the statement given before the start of trial was not the only time in this case a court had to admonish Appellant. At the initial appearance, Judge Houser found Appellant in direct contempt of court:

Defendant found in direct contempt of court for statements made to the court while walking away from the bench. The court had him returned to the bench and gave the defendant the opportunity to clarify his comments or recant them. The defendant did neither.
The defendant was found in direct contempt and sentenced to 5 days in jail to commence immediately.

8/2/16 J.E.

{¶ 25} Thus, the record in this case indicates the trial court was warranted in directing Appellant to remain quiet when the motion to appoint new counsel was renewed by counsel; Appellant's past behavior warranted such instruction.

{¶ 26} That said, the trial court did permit to Appellant to express his concerns about counsel on the record and the court inquired about those concerns on the record. This occurred at the September 21, 2016 pretrial. Although the transcript of the pretrial was not made a part of the record, the trial transcript and the judgment entry following the September 21, 2016 pretrial indicate at the pretrial the trial court heard from Appellant, inquired about his concerns, and ruled on the motion to appoint new counsel. When the motion was renewed, the trial court indicated the same argument was made at the pretrial and overruled. Trial Tr. 12. Counsel indicated Appellant wanted him to reraise the issue because Appellant did not believe he was allowed to make motions. Trial Tr. 12-13. In response the court stated, "Well, he's wrong about that. Because the record will bear out that I did go through all of the so-called motions that he wanted to present to the court, one of which was dismissing you." Trial Tr. 12-13. The judgment entry following the September 21, 2016 pretrial also indicates all of Appellant's motions, including the one requesting new counsel, were addressed by the court:

The Court is in receipt of a letter sent from Defendant, an inmate at the Mahoning County Justice Center. Said letter was opened by the Court this date and reviewed by the Court in open Court during this proceeding. This letter requested that counsel for Defendant, Attorney Edward Hartwig, be removed as counsel of record for Defendant and requested that a bond be set in this matter.
The State of Ohio addressed the Court regarding the letter, as did Defendant and his counsel.

9/27/16 J.E.

{¶ 27} The judgment entry further stated Appellant addressed the court regarding issues related to the case without consulting defense counsel. The court considered those arguments and gave Appellant the choice to proceed pro se or with counsel. Appellant did not want to speak to his attorney, but did not want to proceed pro se. The court then addressed and overruled three pro se requests made by Appellant. The judgment entry indicated the case would proceed to trial on September 26, 2016. 9/27/16 J.E.

{¶ 28} Consequently, the record does indicate the trial court heard from Appellant, inquired into his concerns about counsel, and ruled on the request. Therefore, Appellant's argument that the trial court did not let him air his concerns about trial counsel fails.

{¶ 29} Defense counsel does state on the record that since Appellant was indicted he refused to communicate with him to assist in the defense. Trial Tr. 9-10. This statement does show there was a lack of communication between Appellant and defense counsel. However, as the trial court noted, this lack of communication was caused by Appellant. In some instances, the failure to cooperate and communicate with counsel is nothing more than "stalling" and "playing games with the court." State v. Hollingsworth , 10th Dist. Nos. 07AP-863, 07AP-864, 07AP-865, 2008-Ohio-2424, 2008 WL 2122340, ¶ 7.

{¶ 30} In addition to noting Appellant was the cause for the lack of communication with defense counsel, the trial court discussed the complexity of this case. The trial court noted this is a simple case; it's a he said/she said type of case, there is no issue of identity, and there is no scientific evidence, such as fingerprinting, forensics, or DNA. Trial Tr. 10-12. Defense counsel noted, at most, there is a potential self-defense claim. Trial Tr. 11. This is an accurate statement of the complexity of the case.

{¶ 31} Given the trial court's reasoning for both Appellant's actions and the complexity of the case, we conclude the trial court did not abuse its discretion in denying the motion to appoint new counsel.

{¶ 32} Appellant's next argument under this assignment of error is the trial court abused its discretion when it denied his request for a continuance. Appellant requested a continuance after the trial court denied the renewed motion to appoint new counsel. Trial Tr. 13-14. Appellant wanted additional time to prepare for trial since the motion to appoint new counsel was denied. The trial court overruled the continuance request. Appellant contends the trial court's denial of the continuance was based on its blanket policy to not grant any continuances after the final pretrial hearing.

{¶ 33} "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).

{¶ 34} In assessing whether the trial court abused its discretion in denying appellant's request for a continuance, we consider: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconvenience to litigants, witnesses, opposing counsel and the court; (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether appellant contributed to the circumstance which gives rise to the request for a continuance; and (6) other relevant factors, depending on the unique facts of each case. Id. at 67-68, 423 N.E.2d 1078.

{¶ 35} The United States Supreme Court has stated, "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

{¶ 36} In considering both Ungar and Unger , we conclude the trial court did not abuse its discretion in denying the motion to continue. Although this was the first continuance requested and there would not be too much inconvenience to the witnesses and state, the request was made moments before the trial was scheduled to start. Appellant's failure to communicate was the reason for the request; the reason for the request was dilatory and contrived. Although the trial court did indicate continuances are granted at pretrial and insinuated it was the policy of the court to not grant one after the final pretrial, the trial court's primary reason for denying this continuance motion was because it believed Appellant was "manipulating the process" of the court. Trial Tr. 14. The motion for new counsel was made at the pretrial and was denied. Appellant did not ask for a continuance at the pretrial, but instead waited until moments before trial to move for a continuance to allow him and his counsel to prepare a defense. Appellant had refused to communicate with his counsel following his indictment up until the renewed motion for new counsel. He refused to communicate with his counsel even after he was told at the pretrial hearing that new counsel would not be appointed and trial was scheduled for the following week:

THE COURT: But see, he's manipulating the process of this court. * * * He is one of defiance and rejection of anything and everything rather than to listening. That's what it appears to be.
The court went through great lengths to explain the process to him. And nonetheless, there was nothing but rejection of anything that I had to say; and apparently whatever you had to say. But last Wednesday we discussed the fact that this case was going forward today. * * *
So I don't see where more time would provide any particular advances. I explained to the defendant last week that you were appointed counsel. And I'm not going to grant him some other lawyer that he wouldn't talk to either. He just doesn't want to talk to anybody. And he hasn't hired one. So that's the end of that story I guess. What else?

Trial Tr. 14-17.

{¶ 37} Given the trial court's reasoning and the circumstances in this case, the trial court did not abuse its discretion in denying the motion for continuance.

{¶ 38} For the reasons expressed above, this assignment of error is meritless.

Second Assignment of Error

"The conviction for menacing by stalking was based on insufficient evidence as a matter of law."

{¶ 39} Sufficiency of the evidence is a question of law dealing with legal adequacy of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). It is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id.

{¶ 40} Menacing by stalking is defined as:

No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person. In addition to any other basis for the other person's belief that the offender will cause physical harm to the other person or the other person's family or household member or mental distress to the other person or the other person's family or household member, the other person's belief or mental distress may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

R.C. 2903.211(A)(1).

{¶ 41} The indictment names Celeste Wolfe as the victim of the menacing by stalking charge. Menacing by stalking requires a "pattern of conduct." Appellant states there was no evidence of a "pattern of conduct" regarding Celeste. He argues the only event was the waving of the gun in the street. The state contends the "pattern of conduct" included the punching of Celeste in the face, which resulted in the felonious assault conviction, and the waving of the gun in the street incident that happened shortly after the felonious assault. Appellant does not explain why the assault is not considered part of menacing by stalking.

{¶ 42} "Pattern of conduct" is defined by statute as, "two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents." R.C. 2903.211(D)(1). Given this definition the felonious assault of Celeste can be considered part of the "pattern of conduct." Therefore, if the felonious assault meets the other requirements in the statute, such as being close in time and Celeste believing Appellant would harm her, then the state provided sufficient evidence of a "pattern of conduct."

{¶ 43} We conclude the state provided sufficient evidence the felonious assault was close in time to the gun waving incident. The evidence at trial was the two incidents occurred on the same night and probably within an hour time span. Two appellate districts have stated there is "no requirement that the pattern of conduct be proved by events from two different days." State v. Chandler , 1st Dist. No. C-030008, 2004-Ohio-248, 2004 WL 102144, ¶ 10, citing State v. Scruggs , 136 Ohio App.3d 631, 634, 737 N.E.2d 574 (2d Dist.2000). Since "closely related in time" is not defined by the statute, the trier of fact is permitted to determine what is "closely related in time" on a-case-by-case basis. State v. Thomas , 1st Dist. Nos. C-130620, C-130623, C-130621, C-130624, C-130622, 2014-Ohio-2803, 2014 WL 2957237, ¶ 9, citing Ellet v. Falk , 6th Dist. No. L-09-1313, 2010-Ohio-6219, 2010 WL 5269870, ¶ 22.

{¶ 44} The state presented evidence the punching incident occurred at the house. Appellant left and then Celeste, Jeronica, and a few other people went to find Appellant because he took Celeste's car keys.

They found him on Judson Avenue where he waved a gun at them and said he would kill them. This is sufficient evidence the events were close in time and not just one event. The jury could determine the separate locations and separate times established a "pattern of conduct."

{¶ 45} Menacing by stalking also requires the offender to cause the other person to believe the offender will cause physical harm to the other person or a family member. Celeste Wolfe testified that when the gun incident occurred she believed Appellant would cause her additional physical harm; she was concerned he would shoot her. Trial Tr. 210. As to the felonious assault, Celeste did not testify she believed Appellant would cause her physical harm or mental distress. However, that specific testimony was not the only means to provide evidence of belief of harm. State v. Boden , 7th Dist. No. 01 JE 9, 2002-Ohio-5043, 2002 WL 31114894, ¶ 19 (indicating prior assault, offender being bigger than victim, and repeated contacts with offender could support the conclusion offender caused the victim to be in fear of physical harm). Belief of harm can be evinced by past events, size differences between the perpetrator and victim, and other factors. Id.

{¶ 46} Celeste indicated there was a loud argument between her mother and Appellant; she was upstairs while they were downstairs and she could easily hear the argument. Trial Tr. 208. She went down stairs to try to "move" her mother away from Appellant. Trial Tr. 221. She knew because of her size and his size she would not be able to "remove" him from the house, so she just asked him to leave and that is when he "charged" her on the steps. Trial Tr. 220. In comparing the assaults on Celeste and Krystal, Jeronica testified because of the size differences Appellant injured Celeste, but "he couldn't do nothing to Krystal." Trial Tr. 195. Since Celeste testified at trial, the jury was able to see Celeste's size compared to Appellant's size. Both Jeronica and Celeste also testified Appellant kept hitting Celeste and then immediately left. Trial Tr. 182, 208. Celeste had to be taken to the emergency room because of the assault; she lost consciousness, suffered a broken nose, and had a facial laceration. Trial Tr. 187, 213, 236.

{¶ 47} The above evidence is sufficient to show Appellant was bigger and stronger than Celeste, there was a loud argument between her mother and Appellant, Celeste wanted to move her mother away from Appellant, and the assault happened quickly. This was sufficient evidence to establish Appellant caused Celeste to be afraid for her physical safety and for her mother's.

{¶ 48} This assignment of error is meritless; the state met its burden of production for the menacing by stalking charge.

Third Assignment of Error

"The trial court below committed error prejudicial to defendant by failing to properly follow the sentencing criteria set forth in O.R.C. Section 2929 resulting in Mr. Brown receiving a sentence which is contrary to law."

{¶ 49} Appellate courts review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2) an "appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id.

{¶ 50} When a trial court imposes consecutive sentences it must make the required R.C. 2929.14(C)(4) findings at the sentencing hearing, and it must incorporate those findings into the sentencing entry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. We have previously explained R.C. 2929.14(C)(4) requires a sentencing court to find: "(1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that consecutive sentences are not disproportionate to the seriousness of the defendant's conduct and to the danger he poses to the public, and (3) one of the findings described in subsections (a), (b) or (c)." State v. Jackson , 7th Dist. No. 15 MA 93, 2016-Ohio-1063, 2016 WL 1051514, ¶ 13. Subsections (a), (b), and (c) provide:

(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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 51} Appellant does not dispute the trial court made the first two required findings. His argument instead focuses on the third required finding-a finding of either (a), (b), or (c). Appellant asserts the trial court made no division (a) finding and the record does not support the trial court's division (b) finding. As such, he contends the sentence is contrary to law.

{¶ 52} Appellant is correct the trial court did not make a division (a) finding. However, the trial court did make a division (b) and (c) finding. At the sentencing hearing, it stated, "The court further finds that the harm in this case was so great or unusual that a single term does not adequately reflect the seriousness of the offender's conduct, and that his criminal history shows that consecutive terms are needed to protect the public." Sentencing Tr. 16. In the judgment entry it stated:

The Court further finds that pursuant to O.R.C. 2929.14(C)(4)(b) at least two of the multiple offense were committed as part of one or more courses of conduct, and the harm caused by the 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; and finds pursuant to O.R.C. 2929.14(C)(4)(c) that the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

10/7/16 J.E.

{¶ 53} The trial court was only required to make one finding, either (b) or (c). Appellant does not argue the (c) finding was not supported by the record. As such, his argument fails because even if we could conclude the (b) finding was not supported by the record, the (c) finding was made and it was supported by the record.

{¶ 54} That said, it is noted that both findings are easily supported by the record. The trial court discussed Appellant's criminal record at the sentencing hearing. Sentencing Tr. 7. He has a 1999 juvenile adjudication for aggravated robbery, a 2000 attempted drug abuse conviction, a 2003 carrying a concealed weapon conviction, a 2006 misdemeanor obstructing conviction, a 2007 misdemeanor assault conviction, a 2008 felony for unauthorized use of a motor vehicle conviction, a 2013 weapons under disability conviction, and a 2016 fleeing and alluding conviction. The court also indicated Appellant is a convicted felon and was not permitted to have a firearm on his person. However, in committing the crime of menacing by stalking he used a gun; Appellant admitted he had a gun and waved it in the street. Sentencing Tr. 14-15. The court further noted Appellant has previously served time in the penitentiary but continues to commit crimes. Sentencing Tr. 15. Thus, the division (c) finding is supported by the record and was not contrary to law.

{¶ 55} The division (b) finding is also supported by the record. The undisputed facts of this case are Appellant punched Celeste multiple times breaking her nose, lacerating her face, and causing her to lose consciousness. Appellant left the house and when Celeste and Jeronica found him a little while later, Appellant waved a gun at them in the middle of Judson Avenue and told them he would kill them. These facts support a division (b) finding; the finding was not contrary to law.

{¶ 56} For those reasons, this assignment of error is meritless.

Conclusion

{¶ 57} All three assignments of error lack merit. The conviction is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.


author: Wise, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Linda BUCKNER, Defendant-Appellant
    No. 2016 CA 101
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT ENTRY: January 23, 2018
    GARY BISHOP, PROSECUTING ATTORNEY, JOSEPH C. SNYDER, ASSISTANT PROSECUTOR, 38 South Park Street, Mansfield, Ohio 44902, For Plaintiff-Appellee
    RANDALL E. FRY, 10 West Newlon Place, Mansfield, Ohio 44902, For Defendant-Appellant
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
   Wise, J.

{¶ 1} Defendant-Appellant Linda Buckner appeals her conviction, in the Court of Common Pleas, Richland County, for aggravated murder, murder, and other felony counts. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶ 2} In the summer of 2015, appellant and her boyfriend, Walter Renz, were the next-door neighbors of Patsy Hudson, who lived alone at 284 Spring Street in Mansfield, Ohio. Hudson, then in her early sixties and on disability, was known to rescue and take care of a large number of cats in or around her house. Her adult son, Lonnie Clevenger, drove trucks for a living, but he periodically stopped at the house to visit. According to Lonnie, Hudson sometimes demonstrated reclusive behaviors, refusing to answer the door or the telephone if she was busy watching television or was simply having a bad day.

{¶ 3} Appellant and Renz became acquainted with Hudson, and occasionally drove her on local errands.

{¶ 4} On June 25, 2015, appellant, using the alias "Cara Longtail," went to the emergency room in Shelby, complaining of pain. Tr. at 400. She was prescribed Flexeril and Atenolol at that time by Dr. Charles Marti, who was on duty in the E.R. Tr. at 408. Dr. Marti later testified he wrote appellant the prescription for Atenolol because appellant told hospital personnel she been prescribed that medication, but she did not have any left. Tr. at 409. Both Dr. Marti and a second physician testifying for the State opined that a high enough dose of Atenolol could be fatal. Tr. at 416, 634-636.

{¶ 5} At about this time, appellant was speaking to neighbors about taking Hudson on a trip to Florida, although at one point she also stated that she was angry about Renz spending time at Hudson's house. One of the neighbors, Walter Liggett, specifically recalled that appellant and Renz, in late June 2015, "[s]aid they was [sic ] going to head back down south and take Patsy [Hudson] with them to her sister in Florida." Tr. at 352.

{¶ 6} Appellant and Renz also told this neighbor that they were helping Hudson get rid of her cats. Despite this claim, Hudson was worried someone was trying to poison her cats, and told her son, Lonnie Clevenger, about this concern when he visited her in early July 2015. At one point, Hudson also informed police of the situation. Also, she continued to take some of the cats in for veterinarian appointments in early July. One appointment was scheduled for July 22, 2015, but Hudson did not show up at the veterinarian clinic.

{¶ 7} Shortly before July 4, 2015, another neighbor, Mark Clever, overheard an outdoor "yelling and screaming" argument involving the appellant, Renz and Hudson. Within a couple of weeks, he began to notice Hudson's mail piling up.

{¶ 8} Nicholas Miller, owner of a local lawn service, was contacted by Hudson in early July 2015. Hudson told him that "her neighbors" had been helping her with yard work, but she was concerned that they had "poisoned her cat or something," so she didn't want them taking further care of her lawn. Tr. at 398. On July 10, 2015, Miller mowed Hudson's grass and received payment for his work. This was the last day Hudson was seen alive in the neighborhood.

{¶ 9} On July 10, 2015, Karissa Gibson, a resident of Shelby, Ohio, was on her lunch break when she drove past an older-model blue van, similar to one owned by Renz, pulled over on the side of a country road. She noticed a "creepy looking" man in the process of dumping something. Tr. at 279, 292, 300. The next day, she went by again and found a number of cats in the area where the van had been sitting. Tr. at 287. Some of them had collars. Tr. at 289. She returned to that spot and eventually, with the help of a neighbor, took in over twenty cats found in the general location. Tr. at 290. Unfortunately, a couple of days later, a heavy rain flooded the spot, which is near a creek. Id.

{¶ 10} Sometime between late July and early August 2015, appellant and Renz vacated and abandoned the premises at 290 Spring Street, where they had been living. When the landlord, Dwight Wallen, went through the property, he found a ring washer in the basement that was not there when he first rented the house to them. A ring washer was later found to be missing from Hudson's house. Investigators also found a seven-day pill container, with six days' worth of various medications, in Hudson's house. Tr. at 487.

{¶ 11} On August 3, 2015, another neighbor, Steve Au, called the police after noticing Hudson's mail accumulating, her grass being quite overgrown, and the cats having "vanished." Tr. at 332. When Hudson's son, Lonnie, next went to see her in August 2015, there was no one home. Tr. at 178. However, both of Hudson's vehicles were still at the house. Tr. at 178. He attempted to call the number he had for his mother, but another female voice answered. Tr. at 182. Lonnie later observed that his mother's jewelry boxes and two guns were missing from her house. Tr. at 201.

{¶ 12} Between July 2015 and January 2016, Hudson's debit card was used in various locations throughout the United States. Tr. at 453-459. It was used in Ohio, Indiana, Missouri, Nebraska, Montana, South Dakota, Virginia, West Virginia, North Carolina, Tennessee, and Mississippi. Id.

{¶ 13} On December 22, 2015, officers from the Mansfield Police Department commenced a missing person investigation. The officers learned, among other things, that appellant and Renz had been using appellant's debit and credit cards. Upon questioning by detectives, Renz finally led police to various locations where parts of Hudson's dismembered body had been hidden.

{¶ 14} Investigators also found a nightgown, with numerous bloodstains, in the Spring Street residence where appellant and Renz had been living at the time of Hudson's disappearance. Tr. at 506. Two of the stains were matched to appellant; a third stain also contained appellant's blood, along with an unknown human contributor, described as a "minor DNA profile." Tr. at 833.

{¶ 15} In addition, as further discussed infra , appellant later made admissions about her involvement in an Ohio killing to a woman she met in Mississippi.

{¶ 16} On July 1, 2016, appellant was indicted by the Richland County Grand Jury as follows:

{¶ 17} Count I, aggravated murder ( R.C. 2903.01(A) ), an unclassified felony; Count II, murder ( R.C. 2903.02(A) ), an unclassified felony; Count III, abuse of a corpse ( R.C. 2927.01(B) ), a felony of the fifth degree; Count IV, tampering with evidence ( R.C. 2921.12(A)(1) ), a felony of the third degree; Count V, receiving stolen property ( R.C. 2913.51(A) ), a felony of the fifth degree; Count VI, misuse of credit card ( R.C. 2913.21(B)(2)(D)(4), a felony of the fifth degree; Count VII: identity fraud, R.C. 2913.49(B), a felony of the fourth degree.

{¶ 18} The case proceeded to a jury trial commencing on November 17, 2016. The State's case centered on the theory that appellant, either on her own or along with Renz, had caused Hudson to overdose on Atenolol, after which the couple secreted Hudson's dismembered body and made use of her money and credit cards. Following the presentation of evidence, the jury was given, inter alia, instructions on aiding and abetting.

{¶ 19} Appellant was ultimately found guilty by the jury on all counts. At sentencing, the trial court found Count I and Count II to be allied offenses, and likewise found Count V and Count VI to be allied offenses. On Count I, appellant was sentenced to life in prison, without parole. For Counts III and IV, appellant was sentenced to three years in prison on each count. For Counts V and VII, appellant was sentenced to six months on each count. Furthermore, Counts III, IV, V and VII were ordered to run consecutively to each other, but concurrently to Count I.

{¶ 20} On December 28, 2016, appellant filed a notice of appeal. She herein raises the following two Assignments of Error:

{¶ 21} "I. THE EVIDENCE IN THIS CASE WAS INSUFFICIANT [SIC] AS A MATTER OF LAW TO SUPPORT A CONVICTION OF AGGRAVATED MURDER AND AS A RESULT, THE APPELLANT'S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED.

{¶ 22} "II. THE EVIDENCE IN THIS CASE WAS INSUFFICIANT [SIC] AS A MATTER OF LAW TO SUPPORT A CONVICTION OF MURDER AND AS A RESULT, THE APPELLANT'S RIGHTS AS PROTECTED BY ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED."

Appellate Standard of Review

{¶ 23} In reviewing a claim of insufficient evidence, "[t]he 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), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. It is well-established that the State bears the burden of establishing each and every element of a charged crime and must do so with proof beyond a reasonable doubt. See In re L.R. , 8th Dist. Cuyahoga No. 93356, 2010-Ohio-15, 2010 WL 27862, ¶ 11.

I.

{¶ 24} In her First Assignment of Error, appellant contends her conviction for the aggravated murder of Patsy Hudson was not supported by sufficient evidence. We disagree.

{¶ 25} R.C. 2903.01(A) provides as follows: "No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy."

Cause of Death

{¶ 26} The record in the case sub judice reveals the coroner listed the "immediate cause of death" regarding Hudson as unknown, noting the state of Hudson's dismembered body parts. Tr. at 617, 619. The coroner nonetheless considered Hudson's manner of death a homicide because he could not rationalize any other manner of death. Tr. at 619. Appellant posits the State's theory of the case was that appellant, in July 2015, caused Hudson to take an overdose of Atenolol, resulting in her death, in order to steal her identity and use her debit and credit cards, and that after Hudson's death, appellant assisted Renz in dismembering and secreting Hudson's body. In response, the State concedes its theory "revolved around" poisoning by an Atenolol overdose, but it urges "any number of possibilities exist" for how Hudson died based upon the evidence at trial. Appellee's Brief at 13. For example, the State's forensic anthropologist testified there was evidence of possible stabbing with a sharp instrument in one of Hudson's recovered vertebrae. Tr. at 708.

{¶ 27} In a criminal prosecution, a plea of 'not guilty' requires the State to prove all material facts relating to the crime charged, including those facts relating to the corpus delicti .

State v. Nutter (1970), 22 Ohio St.2d 116, 118, 258 N.E.2d 440. "The corpus delicti, meaning the body or substance of a crime, in a homicide prosecution involves two elements, i.e. the fact of death and the existence of the criminal agency of another as the cause of death." State v. Avery , 7th Dist. Mahoning No. 96 CA 33, 1999 WL 397913, citing State v. Manago (1974), 38 Ohio St.2d 223, 226, 313 N.E.2d 10. The Ohio Revised Code states: "The cause of death and the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner's verdict and in the death certificate filed with the division of vital statistics, shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of common pleas of the county in which the death occurred, after a hearing, directs the coroner to change his decision as to such cause and manner and mode of death." R.C. 313.19. However, "expert medical evidence is not always required to establish whether a death occurred as the result of the criminal agency of another." Avery , citing State v. Carter (1992), 64 Ohio St.3d 218, 226, 594 N.E.2d 595. Additional circumstances surrounding the offense may give rise to further support that the death resulted from the criminal agency of another. Id.

{¶ 28} Accordingly, in light of the evidence set forth in our recitation of facts and discussed infra, we reject appellant's claim that insufficient evidence was provided as to Hudson's cause of death.

Prior Calculation and Design

{¶ 29} Appellant next focuses on the "prior calculation and design" element of Ohio's aggravated murder statute.

{¶ 30} We note in 1974, the General Assembly reclassified "first-degree murder" as "aggravated murder" and substituted, in lieu of the former element of "deliberate and premeditated malice," a requirement of "prior calculation and design." See State v. Jenkins (1976), 48 Ohio App.2d 99, 102, 355 N.E.2d 825. The General Assembly's apparent intention "was to require more than the few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill." State v. Cotton (1978), 56 Ohio St.2d 8, 11, 381 N.E.2d 190. R.C. 2903.01(A) was amended in 1981, but it retained the term 'prior calculation and design' as a necessary element of aggravated murder. State v. Taylor (1997), 78 Ohio St.3d 15, 18, 676 N.E.2d 82. The Ohio Supreme Court has also stated that "it is not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of 'prior calculation and design' " and that "[i]nstead, each case turns on the particular facts and evidence presented at trial." Taylor , supra , at 20, 676 N.E.2d 82.

{¶ 31} In the present case, we find evidence of prior calculation and design was first presented via testimony that appellant and Renz told neighbors that they were going to take Hudson on a purported trip to Florida. See Tr. at 352. Based on this, the jury could have reasonably inferred that this was part of a plan to allay suspicion in the neighborhood when all three of them disappeared at about the same time. The jury could have also reasonably inferred that the assistance appellant and Renz provided in driving Hudson to the grocery store (Tr. at 352) was a means of becoming acquainted with Hudson's finances and obtaining the PIN for her debit card.

{¶ 32} Also, appellant and Renz told neighbors that they were going to get rid of Hudson's cats for her. Tr. at 352, 357. This would have been out of character for the victim, as she was known to care greatly for her animals and had even made a formal police report on July 4, 2015 when she became concerned that one of them had been killed and another one poisoned. Tr. at 266. The officer who responded to that call for assistance described Hudson as upset, as she often took in stray cats to protect them. Tr. at 272. Even until the time of her disappearance, Hudson would take her cats in for veterinary care. Tr. at 339-340. As noted in our recitation of facts, a witness testified that she saw Renz pulled over in a van, appearing to be dumping something, and the witness later found a number of cats stranded in that area. In sum, the record does not show Hudson would have had any intention of "getting rid of" her adopted cats, and the jury could have determined beyond a reasonable doubt that this was part of a scheme to murder Hudson and divert attention from Hudson's house.

{¶ 33} Upon review, we are unpersuaded by appellant's claim that insufficient evidence was provided that she acted with prior calculation and design, either on her own or in complicity with Renz, in causing Hudson's death.

Element of Purpose

{¶ 34} Ohio law recognizes that circumstantial evidence is sufficient to prove the essential elements in a criminal case. State v. Willey, 5th Dist. Guernsey No. 98 CA 6, 1999 WL 3962, citing State v. Hopfer (1996), 112 Ohio App.3d 521, 558, 679 N.E.2d 321. Specifically, the element of purpose may be proven by circumstantial evidence. State v. Buck , 2017-Ohio-273, 81 N.E.3d 895, ¶ 43, citing State v. Shue, 97 Ohio App.3d 459, 466, 646 N.E.2d 1156 (9th Dist.1994).

{¶ 35} However, appellant herein directs us to State v. Sorgee (1978), 54 Ohio St.2d 464, 8 O.O.3d 452, 377 N.E.2d 782, and submits that the State in the present case relied solely on circumstantial evidence to prove its charge of aggravated murder. In Sorgee , the Ohio Supreme Court held "[a]n appellate court will reverse a conviction based solely on circumstantial evidence where that evidence does not, as a matter of law, preclude all reasonable theories of innocence." Sorgee, supra, at syllabus.

{¶ 36} However, the Ohio Supreme Court "has drawn a distinction between cases where the state uses wholly circumstantial evidence to prove an element of an offense, and cases where the state has submitted some direct evidence as to each element of a crime." Jenks , supra , at 264, 574 N.E.2d 492. The rule of Sorgee is not utilized in the latter scenario. Id.

{¶ 37} In the case sub judice , the State called Christina Cooper, who had lived near appellant in an RV park in Ackerman, Mississippi, after Hudson's disappearance. According to Cooper, appellant admitted that she and Renz had killed someone in Ohio. Tr. at 514. Cooper recalled appellant saying she "knew that [Renz] was chopping up the body." Tr. at 535. Appellant further admitted to assisting Renz, after he had cut up the body, in putting the parts in bags, and scattering them throughout the county. Id. Appellant also told Cooper that she and Renz "were living off of a dead woman's credit card." Tr. at 530. Cooper also recounted: "* * * [Appellant] said that they had killed a lady in Mansfield, Ohio, and that it all started because their dog had killed her cat. I guess it just escalated from there. I don't know exactly how it happened. She never told me that. The end result was that they chopped her up and spread her body out." Tr. at 534.

{¶ 38} Under Ohio law, "[d]irect evidence is evidence based on personal observation, including confessions." State v. Rister , 6th Dist. Lucas No. L-09-1191, 2012-Ohio-516, 2012 WL 432613, ¶ 12, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988), paragraph one of the syllabus. Thus, a defendant's confession may be construed as direct evidence of his or her guilt. See State v. Corson , 4th Dist. Pickaway No. 15CA4, 2015-Ohio-5332, 2015 WL 9305491, ¶ 30, citing State v. Watts, 1st Dist. Hamilton No. C-810091, 1981 WL 10176, fn. 1.

{¶ 39} We therefore find the rule of Sorgee inapplicable, and we find the State sufficiently proved the element of "purpose" by direct and circumstantial evidence.

Aiding and Abetting

{¶ 40} Appellant finally argues that there was no evidence that sufficiently shows she aided and abetted in the commission of the offense.

{¶ 41} Ohio's complicity statute, R.C. 2923.03(A)(2), reads in pertinent part as follows: "No person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense." Under R.C. 2923.03(F) of the complicity statute, "[w]hoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. " (Emphasis added).

{¶ 42} We have recognized that in order to support a conviction for complicity by aiding or abetting under R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal, and such intent may be inferred from the circumstances surrounding the crime. State v. Shrider, 5th Dist. Licking No. 07 CA 111, 2008-Ohio-3648, 2008 WL 2840598, ¶ 41, citing State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, syllabus. Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not aiding or abetting. State v. Mullins (1986), 34 Ohio App.3d 192, 200, 517 N.E.2d 945, citing Columbus v. Russell (1973), 39 Ohio App.2d 139, 140, 316 N.E.2d 897.

{¶ 43} The record in the case sub judice , as discussed supra , reveals evidence that appellant participated with Renz in telling Hudson's neighbors that they would all be going to Florida together. Appellant was also connected to the scheme to attempt disposal of Hudson's cats. Appellant also sought out medications which the jury may have concluded caused an overdose to the victim. Furthermore, appellant confessed to a neighbor in Mississippi that she and Renz had killed and dismembered a woman in Mansfield, Ohio.

{¶ 44} Upon review of the record and transcript in a light most favorable to the prosecution, we find that a reasonable finder of fact could have found appellant guilty beyond a reasonable doubt of aggravated murder, either as the primary actor or as an aider and abettor.

Conclusion

{¶ 45} We thus hold appellant's conviction for the aggravated murder of Patsy Hudson was supported by the sufficiency of the evidence.

{¶ 46} Appellant's First Assignment of Error is therefore overruled

II.

{¶ 47} In her Second Assignment of Error, appellant contends her conviction for the murder of Patsy Hudson was not supported by sufficient evidence. We disagree.

{¶ 48} R.C. 2903.02(A), the Ohio murder statute, provides: "No person shall purposely cause the death of another or the unlawful termination of another's pregnancy."

{¶ 49} The Ohio Supreme Court has succinctly concluded: "Murder ( R.C. 2903.02 ) is a lesser included offense of aggravated murder ( R.C. 2903.01 [A] ). * * * The sole difference is that prior calculation and design is absent from murder. * * *." State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 36.

{¶ 50} Accordingly, based on our previous conclusions herein, we find sufficient evidence was presented for reasonable fact finders to conclude beyond a reasonable doubt appellant was guilty of the murder of Patsy Hudson, either as the primary actor or as an aider and abettor. We thus hold said conviction was supported by the sufficiency of the evidence.

{¶ 51} Appellant's Second Assignment of Error is overruled.

{¶ 52} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Richland County, Ohio, is hereby affirmed.

Gwin, P.J., and Baldwin, J., concur.

      Because the actual occurrence of the disappearance and death of Hudson is not presently in dispute, we will not herein attempt to fully summarize additional trial testimony concerning the police investigation into Hudson's residence.

      The record before us indicates appellant and Renz were not tried jointly. See Tr. at 167.

      In addition, at least one appellate court has found the continued validity of Sorgee to be "questionable." See In Re B.N.C. , 2nd Dist. Montgomery No. 25615, 2013-Ohio-4071, 2013 WL 5310624, ¶ 29.