[Cite as State v. Pryor, 2017-Ohio-8935.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-17-20

        v.

JEREMY L. PRYOR,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2016 0467

                                      Judgment Affirmed

                          Date of Decision: December 11, 2017




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
Case No. 1-17-20



SHAW, J.

       {¶1} Defendant-appellant, Jeremy Pryor (“Pryor”), brings this appeal from

the April 13, 2017, judgment of the Allen County Common Pleas Court sentencing

Pryor to an aggregate 10-year prison term after he was convicted by a jury of two

counts of Complicity to Felonious Assault in violation of R.C. 2903.11(A)(2), both

felonies of the second degree and both containing firearm specifications pursuant to

R.C. 2941.145(A), one count of Complicity to Aggravated Robbery in violation of

R.C. 2911.01(A)(1), a felony of the first degree, also containing a firearm

specification pursuant to R.C. 2941.145(A), and one count of Carrying a Concealed

Weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. On

appeal, Pryor argues that his convictions were not supported by sufficient evidence,

that the convictions were against the manifest weight of the evidence, that he

received ineffective assistance of counsel, that the trial court failed to properly

instruct the jury, that the trial court erred by failing to merge certain counts for the

purposes of sentencing, and that the trial court erred in imposing consecutive

sentences.

                                 Procedural History

       {¶2} On December 15, 2016, Pryor was indicted for two counts of Felonious

Assault in violation of R.C. 2903.11(A)(2), both felonies of the second degree and

both containing firearm specifications, two counts of Aggravated Robbery in

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violation of R.C. 2911.01(A)(1), both felonies of the first degree and both

containing firearm specifications, and one count of Carrying a Concealed Weapon

in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. Pryor pled not

guilty to the charges.

       {¶3} On February 7-8, 2017, Pryor’s case proceeded to a jury trial. Just prior

to the beginning of the trial, the State dismissed one of the Aggravated Robbery

counts against Pryor. The trial proceeded on the remaining counts, with the State

calling 10 witnesses and entering multiple exhibits into evidence including

surveillance video of the incident. The State argued that Pryor was guilty of the

Felonious Assaults and the Aggravated Robbery under a Complicity theory for

either soliciting or aiding and abetting Brandon Bolden in committing the offenses.

Pryor then presented his case-in-chief, testifying on his own behalf as the sole

witness for the defense. Ultimately the jury found Pryor guilty of all four of the

remaining counts against him.

       {¶4} On April 13, 2017, a sentencing hearing was held. Pryor was ordered

to serve 2 years in prison on each of the Felonious Assault convictions, consecutive

to each other, and 3 years in prison on each of the firearm specifications, consecutive

to each other, and consecutive to the prison terms from the Felonious Assault

convictions. Pryor was also ordered to serve 3 years in prison on the Aggravated

Robbery conviction and 12 months in prison on the Carrying a Concealed Weapon


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conviction; however, both of those prison terms were ordered to be served

concurrent to the remaining charges. A judgment entry memorializing Pryor’s

sentence was filed the same day of the sentencing hearing.

      {¶5} It is from this judgment that Pryor appeals, asserting the following

assignments of error for our review.

                         Assignment of Error No. 1
      The conviction for Carrying a Concealed Weapon was not
      supported by sufficient evidence.

                         Assignment of Error No. 2
      The conviction for Carrying a Concealed Weapon was against the
      manifest weight of the evidence.

                          Assignment of Error No. 3
      The Trial Court erred and denied to Mr. Pryor his right to a fair
      trial by jury by not properly instructing the jury as to complicity.

                       Assignment of Error No. 4
      The complicity convictions were not supported by sufficient
      evidence.

                        Assignment of Error No. 5
      The complicity convictions were against the manifest weight of the
      evidence.

                       Assignment of Error No. 6
      Mr. Pryor was denied the effective assistance of counsel.

                         Assignment of Error No. 7
      The trial Court erred in denying the defense motion to merge
      Counts I and II with Count III.

                       Assignment of Error No. 8
      The Trial Court erred in imposing consecutive sentences as to
      Counts I and II.

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       {¶6} We elect to address some of the assignments of error together, and out

of the order in which they were raised.

              First, Second, Fourth, and Fifth Assignments of Error

       {¶7} In his first and fourth assignments of error, Pryor argues that there was

insufficient evidence presented to convict him of both counts of Complicity to

Felonious Assault, of Complicity to Aggravated Robbery, and of Carrying a

Concealed Weapon. In his second and fifth assignments of error, Pryor argues that

even if his convictions were supported by sufficient evidence, they were against the

manifest weight of the evidence.

                                Standard of Review

       {¶8} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is

a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency

challenge, “ ‘the relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.’ ” State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus.

       {¶9} By contrast, in reviewing whether a verdict was against the manifest

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

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the conflicting testimony. Thompkins at 387. In doing so, this Court 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.” Id.

Furthermore, “[t]o reverse a judgment of a trial court on the weight of the evidence,

when the judgment results from a trial by jury, a unanimous concurrence of all three

judges on the court of appeals panel reviewing the case is required.” Thompkins at

paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).

                                  Trial Testimony

       {¶10} At trial, the State presented the testimony of Javionte Gilcrease and

Devante Neal who were shot in the early afternoon hours of January 1, 2016, as they

were walking home from a nearby gas station. Gilcrease and Neal had gone to the

gas station to purchase tobacco products.

       {¶11} Three men—Pryor, Brandon Bolden, and Alundrous Sanders—left the

gas station together on foot shortly before Gilcrease and Neal. Gilcrease testified

that as he and Neal were coming up behind the three men, the three men slowed

down. Gilcrease indicated that he saw Pryor—whom he did not know at the time

but identified at trial—hand a gun to a man later identified as Brandon Bolden.

Bolden then immediately approached Gilcrease and Neal, pointed the gun at them,


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and told them to empty their pockets. Gilcrease told Bolden he did not have

anything, and Bolden said “Do you think I’m playing?” and then shot Gilcrease in

the leg. (Feb. 7, 2017, Tr. at 161).

       {¶12} When Bolden shot Gilcrease, Neal started to run in the opposite

direction. Bolden fired several shots at Neal, striking him in the leg as well. Neal

was able to make it to a nearby residence to get help.

       {¶13} While Gilcrease was on the ground after being shot in the leg, Bolden

stepped over him and took his cell phone, then ran off. Pryor and Sanders had

started to run toward Sanders’s residence when Bolden began shooting. Gilcrease

and Neal were both taken to the hospital and treated for their injuries.

       {¶14} Officers responded to the area and learned from a witness on the street

that three black males had been observed running from the scene to a house at 821

Madison in Lima, which was approximately two blocks from the gas station.

Officers were let into the residence by the owner, Kimberly Van Meter. When the

officers entered the residence, Pryor was coming upstairs from the basement. Pryor

was detained at that time and as officers checked the basement they found a handgun

in plain view partially hidden under a rock. The handgun was loaded, had a round

in the chamber and seven bullets in the magazine. Officers noticed that there were

muddy boot prints that led from the basement where the gun was found to the chair

where police had Pryor take a seat. Pryor was wearing muddy shoes at the time.


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       {¶15} Officers located seven spent shell casings from the scene of the

shooting. BCI determined that the casings had been fired from the gun that had

been located in the basement of 821 Madison.          Further testing revealed the

handgun’s serial number, which had been scratched off on the surface. The serial

number was then checked and it was learned that Pryor was the registered owner of

the firearm, having purchased it from MC Sports in Lima in May of 2015.

       {¶16} Bolden, the shooter, was located in the alley behind the residence at

821 Madison. After he was detained, Gilcrease’s cell phone was found in Bolden’s

pocket.

       {¶17} Surveillance footage from the gas station was entered into evidence

and played for the jury. It showed Bolden, Pryor and Sanders walking to the gas

station, going inside, and then making a purchase. From the interior surveillance

video a Lima Police detective was able to readily identify Pryor and Bolden from

prior dealings. After the business at the gas station was complete, the three spoke

with a man outside for a short time, then began walking off.

       {¶18} The surveillance footage showed Gilcrease and Neal walk up to the

gas station, then exit the gas station. It then showed Gilcrease and Neal walking in

the same direction as Bolden, Pryor and Sanders. It also showed Pryor moving close

to Bolden shortly before Bolden approached Gilcrease and Neal. Pryor handing

Bolden a gun cannot clearly be seen in the video due to the distance from the


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surveillance camera, but the two were momentarily close together and Gilcrease

testified that he saw Pryor give Bolden the handgun that was used in the shooting.

Gilcrease identified the moment on the video where he saw the transfer.

         {¶19} After the State rested its case, Pryor took the stand in his own defense.

Pryor testified that he had originally purchased the firearm in question but the

firearm went missing sometime in late 2015 prior to the shooting. Pryor testified

that he did not give the gun to Bolden, that he did not in any manner support or

encourage Bolden to commit a robbery, let alone shoot anyone, and that when

Bolden started shooting he started running.

                              Sufficiency of the Evidence

         {¶20} On appeal, in his first and fourth assignments of error, Pryor argues

that the State presented insufficient evidence to convict him of Complicity to

Felonious Assault of both Gilcrease and Neal, that the State presented insufficient

evidence to convict him of Complicity to Aggravated Robbery of Gilcrease, and

that the State presented insufficient evidence to convict him of Carrying a

Concealed Weapon.

         {¶21} As argued in this case, Complicity is codified in R.C. 2923.03, which

reads,

         (A) No person, acting with the kind of culpability required for
         the commission of an offense, shall do any of the following:

         (1) Solicit or procure another to commit the offense;

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       (2) Aid or abet another in committing the offense[.]

       {¶22} In State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, the Supreme

Court of Ohio further defined what “complicity by aiding and abetting” means in

the context of R.C. 2923.03(A)(2), holding that: “To support a conviction for

complicity by aiding and abetting pursuant to 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. Such intent may be inferred

from the circumstances surrounding the crime.” Johnson at syllabus.

       {¶23} Pryor was convicted of two counts of Complicity to Felonious Assault

in violation of R.C. 2903.11(A)(2), one count for Gilcrease and one count for Neal.

Felonious Assault pursuant to R.C. 2903.11(A)(2) reads, “No person shall

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.”

       {¶24} Pryor was also convicted of Complicity to Aggravated Robbery in

violation of R.C. 2911.01(A)(1), which reads, “No person, in attempting or

committing a theft offense * * * shall * * * “[h]ave a deadly weapon on or about the

offender’s person or under the offender’s control and either display the weapon,

brandish it, indicate that the offender possesses it, or use it[.]”



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       {¶25} Finally, Pryor was convicted of Carrying a Concealed Weapons in

violation of R.C. 2923.12(A)(2), which reads, “No person shall knowingly carry or

have, concealed on the person’s person or concealed ready at hand * * * [a] handgun

other than a dangerous ordnance[.]”

       {¶26} With regard to both of his convictions for Complicity to Felonious

Assault and his conviction for Complicity to Aggravated Robbery, Pryor argues in

his fourth assignment of error that the State did not present any evidence, let alone

sufficient evidence, establishing that Pryor had the same “kind of culpability

required for the commission of the offense[s]” as the principal offender. He

contends that there was no evidence of any agreement between Pryor and Bolden as

to what Bolden would do with the gun. He does not contest that Bolden committed

both Felonious Assaults or an Aggravated Robbery; rather, he contests his

Complicity to those crimes.

       {¶27} Contrary to Pryor’s arguments, the State presented the testimony of

Gilcrease who indicated that immediately before Bolden approached him, Gilcrease

saw Pryor give Bolden a gun. Gilcrease testified that the action made him concerned

for his safety and that Bolden then walked over to Gilcrease and told him to empty

his pockets.

       {¶28} The surveillance video corroborates Gilcrease’s version of events, at

least to an extent, as it shows Pryor congregating near Bolden just before the robbery


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where Pryor could have passed Bolden the gun. Pryor and Bolden are too far from

the camera to see an actual gun being exchanged, but that is what Gilcrease testified

that he witnessed. Given the timing of the events, the jury could readily infer that

Pryor was assisting, supporting, encouraging or inciting Bolden to commit an

Aggravated Robbery and the Felonious Assaults when Pryor was providing Bolden

with the gun just as Gilcrease and Neal approached.

       {¶29} This is particularly true given that after the shooting in question, the

jury could infer that Pryor attempted to hide the gun from the incident in the

basement of 821 Madison, which Bolden would have had to give back to him in

order to do so. Because the State presented evidence from which Pryor’s culpability

could be reasonably inferred, we cannot find that the State presented insufficient

evidence regarding the Complicity convictions. Thus Pryor’s fourth assignment of

error is overruled.

       {¶30} With regard to Pryor’s conviction for Carrying a Concealed Weapon,

Pryor contends in his first assignment of error that no witnesses testified that the

handgun was concealed and that it was error to allow the charge to proceed to a jury

where the only evidence was an inability to see a weapon on Pryor in the “grainy”

surveillance video.

       {¶31} Notably, Pryor was identified on the gas station surveillance video,

including the interior gas station video. The interior video shows both the front and


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back of Pryor from a relatively close distance and a handgun cannot be seen.

Combining this with Gilcrease’s testimony that Pryor handed Bolden the handgun,

we cannot find that the State presented insufficient evidence to convict Bolden of

Carrying a Concealed Weapon. Pryor’s first assignment of error is therefore

overruled.

                                  Manifest Weight

       {¶32} Pryor next argues in his second and fifth assignments of error that even

if there was sufficient evidence presented to support his convictions, his convictions

were against the manifest weight of the evidence. Pryor argues that for the same

reasons that he contended that the State presented insufficient evidence to convict

him, his convictions were against the manifest weight of the evidence. We disagree.

       {¶33} Although Pryor took the stand in his own defense to deny the

allegations presented by the State, the jury was free to find his denials not to be

credible. “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. In other words, “jurors are entitled to believe the

testimony offered by the State’s witnesses.” State v. Wareham, 3d Dist. Crawford

No. 3–12–11, 2013–Ohio–3191, ¶ 25, citing State v. Bates, 12th Dist. Butler No.

CA2009–06–174, 2010–Ohio–1723, ¶ 11.




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       {¶34} In this case, Pryor’s testimony seemed particularly suspect given that

he claimed to have lost the weapon that he purchased from MC Sports, which was

the same weapon Gilcrease indicated that Pryor gave to Bolden just before the

shootings, and the same weapon a jury could infer Pryor was hiding in the basement

of the residence at 821 Madison.

       {¶35} The jury was provided with the testimony of the two victims, Gilcrease

and Neal, the investigating officers, and video surveillance of the incident. Based

on the evidence that was presented, we cannot find that the jury clearly lost its way

in convicting Pryor of two counts of Complicity to Felonious Assault, Complicity

to Aggravated Robbery, and Carrying a Concealed Weapon, or that the jury created

a manifest miscarriage of justice. Therefore, Pryor’s second and fifth assignments

of error are overruled.

                             Third Assignment of Error

       {¶36} In Pryor’s third assignment of error, having failed to enter any

objection at trial, he argues that the trial court committed plain error by failing to

properly instruct the jury as to “Complicity.”

                                 Standard of Review

       {¶37} Generally, “ ‘[w]hen reviewing a trial court’s jury instructions, the

proper standard of review for an appellate court is whether the trial court’s refusal

to give a requested jury instruction constituted an abuse of discretion under the facts


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and circumstances of the case.’ ” State v. Leasure, 4th Dist. Ross No. 15CA3484,

2015–Ohio–5327, ¶ 49, quoting State v. Ellis, 5th Dist. Fairfield No. 02 CA 96,

2004–Ohio–610, ¶ 19; see also State v. Wolons, 44 Ohio St.3d 64, 68 (1989).

However, “a party may not assign as error the giving or the failure to give any

instructions unless the party objects before the jury retires to consider its verdict,

stating     specifically the   matter   objected   to   and   the   grounds   of   the

objection.” Crim.R. 30(A).

          {¶38} The Supreme Court of Ohio has repeatedly held that a failure to object

before the jury retires in accordance with this provision, absent plain error,

constitutes a waiver. State v. Williford, 49 Ohio St.3d 247, 251 (1990), citing State

v. Underwood, 3 Ohio St.3d 12 (1983). To have plain error under Crim.R. 52(B),

the error must be an “obvious” defect in the trial proceedings that affected the

defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain

error is to be used “ ‘with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.’ ” Id. quoting State v. Barnes, 94

Ohio St.3d 21, 28, 2002-Ohio-68. Further, plain error only exists where “but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Biros, 78

Ohio St.3d 426, 431 (1997).

          {¶39} Finally, we note that when reviewing jury instructions, courts have

held that they are to “be considered as a whole and not merely by examining isolated


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portions thereof.” State v. Williams, 10th Dist. Franklin No. 90AP-638, 75 Ohio

App.3d 102, 116 (1991) citing State v. Price, 60 Ohio St.2d 136 (1979); State v.

Dues, 8th Dist. Cuyahoga No. 100861, 2014-Ohio-5276, ¶ 39 (“jury instructions are

to be viewed as a whole to determine whether they contain prejudicial error.”). “

‘Instructions that in their totality are sufficiently clear to permit the jury to

understand the relevant law will not be the cause of a reversal upon appeal.’ ”

” State v. Thiel, 3d Dist. Wyandot No. 16-16-01, 2017-Ohio-242, ¶ 135,

quoting Schnipke v. Safe–Turf Installation Group, L.L.C., 3d Dist. Allen No. 1-10-

07, 2010–Ohio–4173, ¶ 30, citing Burns v. Prudential Secs., Inc., 3d Dist. Marion

No. 9-03-49, 2006–Ohio–3550, ¶ 41.

           {¶40} In this case, Pryor argues that the jury was inadequately instructed as

to Complicity.1 In pertinent part, the trial court instructed the jury as follows.

           On Counts One, Two, and Three, the State has charged the
           defendant under a theory that the defendant was complicit with
           another person in the offenses in those counts. A charge of
           complicity may be stated in terms of being an accomplice with
           another in an offense or in terms of the principal offense.

           Before you can find the defendant guilty of complicity in any
           crime you must find beyond a reasonable doubt that on or about
           the stated date, and in Allen County, Ohio, the defendant either
           knowingly solicited or procured another to commit the offense in
           the particular count of the indictment, or knowingly aided or
           abetted another in committing the offense.




1
    The statutory elements of Complicity have been cited previously in this opinion.

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       Now, the defendant cannot be found guilty of complicity unless
       the offense was actually committed.

       Solicit means to seek, to ask, to influence, to invite, to tempt, to
       lead on, or to bring pressure to bear.

       Procure means to get, obtain, induce, bring about, or motivate.

       Aided or abetted. Before you can find the defendant guilty of
       complicity by aiding and abetting you must find beyond a
       reasonable doubt that the defendant shared the criminal intent of
       the principal offender. Such intent may be inferred from the
       circumstances surrounding the offense including, but not limited
       to, presence, companionship, and conduct before and after the
       offense was committed. The mere presence of the defendant at
       the scene of the offense is not sufficient to prove, in and of itself,
       that the defendant was an aider and abettor.

       The charges set forth in each count constitute a separate and
       distinct matter. You must consider each count and the evidence
       applicable to each count separately and you must state your
       finding as to each count uninfluenced by your verdict as to any
       other count. The defendant may be found guilty or not guilty of
       any one or all of the offenses charged.

       Remember, although the charges in Counts One, Two, and Three
       of the indictment are stated in terms of defendant committing the
       principal offenses therein, he is being tried as an alleged
       accomplice with another person, Brandon Bolden, in the
       commission of those offenses.

(Emphasis added.) (Feb. 8, 2017, Tr. at 391-393).

       {¶41} After covering Complicity in its instructions, the trial court then

provided instructions on the first two counts, both Felonious Assaults, including the

requisite mental culpability, knowingly. In both instances the trial court reiterated

that the State had to prove beyond a reasonable doubt that Pryor “solicited, procured,

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or aided or abetted another in the commission of the Felonious Assault.” (Id. at

396). Next the trial court instructed the jury on Aggravated Robbery, including the

applicable mental state. It was similarly reiterated that Pryor was being charged

with Complicity.

         {¶42} When reviewing the jury instructions in this case, we cannot find that

plain error existed here. The jury was clearly instructed as to what it had to find

regarding each count of complicity and what elements it had to find regarding the

principal offense. Pryor may argue on appeal that the instructions were somehow

inadequate, but the requisite instructions were given. Pryor seems to contend that

the trial court should have repeated the aided and abetted language regarding sharing

the intent of the principal offender each time complicity is later mentioned in the

instructions. Even assuming arguendo that this was true, the jury instructions as a

whole do not demonstrate any inadequacy and they certainly could not rise to the

level of plain error in this case.2 Thus Pryor’s third assignment of error is overruled.

                                     Sixth Assignment of Error

         {¶43} In Pryor’s sixth assignment of error, he argues that he was denied the

effective assistance of counsel. Specifically, he contends that his trial counsel was

ineffective for failing to call Brandon Bolden, the principal actor, as a witness in



2
  Notably the trial court went over every page of the jury instructions individually with the prosecution and
the defense prior to instructing the jury. The defense raised no objections to anything regarding the mental
culpability related to the Complicity counts.

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this case and that his counsel was ineffective for failing to make sure that the jury

was properly instructed regarding complicity in this case as he argued in the third

assignment of error.

                                 Standard of Review

       {¶44} To establish an ineffective assistance of counsel claim, Pryor must

show that his trial counsel’s performance was deficient and that counsel’s

performance prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,

¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to

make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no

reason for a court deciding an ineffective assistance claim to approach the inquiry

in the same order or even to address both components of the inquiry if the defendant

makes an insufficient showing on one.”).

                                      Analysis

       {¶45} At the outset, we have already determined in our third assignment of

error that no prejudicial error existed regarding the jury instructions in this case,

thus Pryor’s ineffective assistance claim related to that issue is not well-taken.

       {¶46} Turning then to Pryor’s remaining argument, Pryor claims that his trial

counsel was ineffective for failing to call Brandon Bolden as a witness at trial. Pryor

bases his argument on a “letter” that Pryor produced at the sentencing hearing in


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this case. The “letter” is a handwritten, unsigned, unsworn statement that Pryor

contended was drafted by Brandon Bolden. The “letter” stated as follows.

       This what I gave my lawyer John I only know how to say this one
       way and that’s the truthful way Devante kept shooting at me and
       my friend Aaron bullets a [sic] be whistling past our head’s [sic]
       it got to the point every where [sic] I went he would pop up out of
       no where [sic] and start shooting at me I use [sic] to run because
       I had no gun I got tired of running John I got tired so I bought me
       a gun to prepare myself and I had no intention of running into
       him that day it just happened we leaving the store finna [sic] turn
       in the alley I hear somebody say run yo pocket’s [sic] I turn to see
       who said it when I turn I see Devante with a gun I seen thru [sic]
       the barrel he ain’t have one in the head that’s when I started
       shooting that’s when the other 2 guys ran they didn’t have no
       involvement in it that’s why they ran.

(Apr. 13, 2017, Hr., Def.’s Ex. A).

       {¶47} Pryor presented this “letter” at his sentencing hearing claiming that he

wanted to have a new trial based on this “new” evidence, even though the letter was

dated prior to his trial. Pryor’s attorney stated that he had never seen the letter

before, though he was advised that it existed and he asked family members multiple

times to produce it but they never did. Pryor’s attorney also stated that he had

spoken with Bolden’s attorney multiple times regarding whether Bolden would

testify in this case, and Bolden said he would not testify and that if he was called he

would invoke his Fifth Amendment right because he was making an appeal in his

own criminal case from these issues.




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       {¶48} As the letter cannot remotely be authenticated—it is unsigned, not

notarized, and could literally have been written by anyone—and as Pryor’s trial

counsel had multiple reasons for not calling Bolden as a witness, including a distinct

possibility that Bolden might corroborate the State’s witnesses regarding the firearm

in some fashion, we cannot find that trial counsel was ineffective.           This is

particularly true given that we have no way of knowing what, if anything, Bolden’s

testimony would have been. Pryor’s argument is thus not well-taken, and his sixth

assignment of error is overruled.

                            Seventh Assignment of Error

       {¶49} In Pryor’s seventh assignment of error, he argues that the trial court

erred by failing to merge the two Felonious Assault convictions with the Aggravated

Robbery conviction. Pryor essentially contends that the act of delivering the

handgun to Bolden completed his involvement in the Felonious Assaults and the

Aggravated Robbery, and that this single act should have resulted in a merger of the

Felonious Assaults with the Aggravated Robbery.

                                   Standard of Review

       {¶50} Revised Code 2941.25, Ohio’s multiple-count statute, governs allied

offenses, and states as follows.

       (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.

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       (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.

       {¶51} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, the Supreme

Court of Ohio provided Ohio courts with the following guidelines as to how to

interpret R.C. 2941.25.

       As a practical matter, when determining whether offenses
       are allied offenses of similar import within the meaning of R.C.
       2941.25, courts must ask three questions when the defendant’s
       conduct supports multiple offenses: (1) Were the offenses
       dissimilar in import or significance? (2) Were they committed
       separately? and (3) Were they committed with separate animus
       or motivation? An affirmative answer to any of the above will
       permit separate convictions. The conduct, the animus, and the
       import must all be considered.

(Emphasis added.) Ruff at ¶ 31. The Supreme Court of Ohio further held

in Ruff that “two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and

identifiable.” Id. at ¶ 26.

       {¶52} Whether offenses are allied offenses of similar import is a question of

law that this Court reviews de novo. State v. Badertscher, 3d Dist. Putnam No.

1214–06, 2015–Ohio–927, ¶ 21, citing State v. Stall, 3d Dist. Crawford No. 3–10–


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12, 2011–Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1–10–31,

2011–Ohio–1461, ¶ 36.

                                     Analysis

       {¶53} In this case, Pryor argued at the sentencing hearing that his Felonious

Assault convictions should merge with the Aggravated Robbery conviction. The

trial court directly addressed Pryor’s merger arguments, including an additional

argument that he does not renew on appeal regarding merger of the Felonious

Assaults with each other.

       With regard to the Felonious Assaults, notwithstanding that the
       case proceeded under a complicity theory, I find that obviously
       there are two separate identifiable victims with regard to the two
       Felonious Assaults. So, I would find that the two Felonious
       Assaults do not merge under the Ruff analysis.

       With regard to the Aggravated Robbery in Count Three merging
       with either of the Felonious Assaults, the Court would just cite to
       State vs. Fields, a Twelfth District Court of Appeals Case, 2015-
       Ohio-1345. I think the facts of this case are similar in that, or,
       that they were in that case. The way the Ruff case was applied
       therein, they found that Aggravated Robbery was separate and
       complete before the Felonious Assaults occurred. Once the
       defendant pointed the gun, or, in this case Mr. Bolden pointed the
       gun, and the defendant being complicit in that, the Agg. Robbery
       was completed before the actual Felonious Assaults occurred. So,
       under the Fields case and State vs. Bailey is another case, and
       that’s the First District Court of Appeals, 2015-Ohio-2997, and in
       that case a Robbery and a Felonious Assault did not merge under
       the same kind of analysis.

       I would find that none of the counts in this case merge.

(Apr. 13, 2017, Tr. at 5-6).

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Case No. 1-17-20


       {¶54} When reviewing the trial court’s decision, we note that the trial court

was correct that the Twelfth District Court of Appeals determined in State v. Fields,

12th Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, that a Felonious

Assault conviction did not merge with an Aggravated Robbery conviction.

However, the facts in Fields are slightly different than the facts of the case here, and

the Felonious Assault in Fields was charged under a different provision than in the

case before us (R.C. 2903.11(A)(1) in Fields rather than (A)(2) here).

       {¶55} Nevertheless, as the trial court found, the Aggravated Robbery was

completed when Bolden pointed the gun at Gilcrease and demanded that he empty

his pockets. Both Felonious Assaults were committed after that. Or, conversely,

the trial court could have found that both Felonious Assaults occurred before an

Aggravated Robbery, when Bolden actually took the phone from Gilcrease, who

was still on the ground from having been shot by Bolden.

       {¶56} Pryor seems to contend that because he only conducted the single act

of giving the gun to Bolden, he should only be held liable for one act. We disagree.

Based on the facts and circumstances specific to this case, we cannot find that the

trial court erred in determining that the Felonious Assault convictions and the




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Case No. 1-17-20


Aggravated Robbery conviction do not merge.3 Thus Pryor’s seventh assignment

of error is overruled.

                                    Eighth Assignment of Error

         {¶57} In Pryor’s eighth assignment of error, he contends that the trial court

erred in imposing consecutive sentences as to the Felonious Assault counts.

Specifically, he argues that the trial court erred in making its consecutive sentences

findings pursuant to R.C. 2929.14(C)(4).

                                         Standard of Review

         {¶58} Revised Code 2953.08(G)(2) governs the review of felony sentencing,

reading in pertinent part:

         The appellate court may increase, reduce, or otherwise modify a
         sentence that is appealed under this section or may vacate the
         sentence and remand the matter to the sentencing court for
         resentencing. The appellate court’s standard for review is not
         whether the sentencing court abused its discretion. The appellate
         court may take any action authorized by this division if it clearly
         and convincingly finds either of the following:

         (a) That the record does not support the sentencing court’s
         findings under division (B) or (D) of section 2929.13, division
         (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
         2929.20 of the Revised Code, whichever, if any, is relevant;

         (b) That the sentence is otherwise contrary to law.




3
 We note that even if Pryor’s convictions did merge, it would not likely lessen his sentence as the Aggravated
Robbery sentence was run concurrently with the other convictions. However, that would not make such an
error harmless as Pryor would still have an extra unnecessary conviction.

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Case No. 1-17-20


Based on the controlling statute, in order to reverse a trial court’s sentence, we must

determine that the sentence is clearly and convincingly contrary to law.

                               Consecutive Sentences

       {¶59} In this case Pryor argues that the trial court erred by imposing

consecutive sentences for his Felonious Assault convictions. Before a trial court

can impose consecutive sentences, the trial court has to make certain findings

pursuant to R.C. 2929.14(C)(4), which reads:

       (4) If multiple prison terms are imposed on an offender for
       convictions of multiple offenses, the court may require the
       offender to serve the prison terms consecutively if the court finds
       that the consecutive service is necessary to protect the public from
       future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the
       offender’s conduct and to the danger the offender poses to the
       public, and if the court also finds any of the following:

       (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.


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Case No. 1-17-20


       {¶60} In making its consecutive sentence findings pursuant to R.C.

2929.14(C)(4), the trial court is required to make the findings and incorporate them

into the sentencing entry; however, the trial court has “no obligation to state reasons

to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, at

syllabus.

                                      Analysis

       {¶61} In this case, the trial court made the following findings with regard to

consecutive sentencing at the sentencing hearing.

       I’m going to impose the sentences on Count One and Count Two,
       the two Felonious Assaults, since they’re separate victims, I’m
       going to impose those consecutive to each other. The reason I’m
       making Counts one and Two consecutive to each other is I find
       that consecutive sentences are necessary to protect the public
       from future crime and also to punish the defendant and I find that
       consecutive sentences are not disproportionate to the seriousness
       of his conduct on those two Felonious Assaults and to the danger
       that he poses. I also find that the two Felonious Assaults were
       committed as part of one or more courses of conduct and that the
       harm caused was so great and unusual that no single prison term
       for any of those two offenses adequately reflects the seriousness of
       the conduct.

(Apr. 13, 2017, Tr. at 29). The trial court’s findings at the sentencing hearing were

explicitly incorporated into its judgment entry.

       {¶62} The findings that were made by the trial court appear to be in clear

compliance with R.C. 2929.14(C)(4). However, Pryor does not really contest

whether the trial court made the findings pursuant to R.C. 2929.14(C)(4), rather, he


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Case No. 1-17-20


essentially contends that the trial court’s findings were not supported by the

evidence in this case.

        {¶63} More specifically, Pryor argues that it is illogical for the trial court to

find that no single sentence could adequately reflect the seriousness of Pryor’s

conduct, and yet the trial court sentenced Pryor to two minimum consecutive

sentences on the felonious assault counts, which combined would equal less than

the maximum possible sentence for one count of Felonious Assault.4 Basically,

Pryor seeks to have this Court issue a ruling that a trial court cannot sentence an

offender to consecutive sentences if the consecutive sentences amount to less than

the maximum allowable prison term for one of the two counts. Such a blanket ruling

would severely restrict a trial court from fashioning a sentence as it sees fit, and

Pryor cites no legal authority to support it. Given that Pryor is unable to demonstrate

that the trial court’s sentence was clearly and convincingly contrary to law, we

cannot find that the trial court erred and Pryor’s eighth assignment of error is

overruled.




4
 One count of Felonious Assault carries a minimum prison term of 2 years and a maximum prison term of 8
years. Consecutive prison terms of 2 years for two separate counts amounts to 4 years, one-half of a
maximum prison term for a single count.

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                                   Conclusion

       {¶64} For the foregoing reasons Pryor’s assignments of error are overruled

and the judgment of the Allen County Common Pleas Court is affirmed.

                                                             Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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