[Cite as State v. Abdi, 2011-Ohio-3550.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY



State of Ohio,                                        :
                                                      :
             Plaintiff-Appellee,                      :           Case No: 09CA35
                                                      :
             v.                                       :
                                                      :           DECISION AND
Abdifatah Abdi,                                       :           JUDGMENT ENTRY.
                                                      :
             Defendant-Appellant.                     :   File-stamped date: 7-11-11



                                           APPEARANCES:

Russell S. Bensing, Cleveland, Ohio, for Appellant.

C. David Warren, Athens County Prosecutor, and Keller J. Blackburn, Athens County
Assistant Prosecutor, Athens, Ohio, for Appellee.



Kline, J.:

{¶1}         Abdifatah Abdi (hereinafter “Abdi”)1 appeals his convictions for two counts of

aggravated robbery, each with a firearm specification, and one count of murder, which

also carried a firearm specification. Abdi first contends that aggravated robbery and

felony murder are allied offenses of similar import. Because aggravated robbery and

felony murder are allied offenses of similar import, we agree. Therefore, we remand the

case to the trial court to consider (1) whether Abdi committed felony murder and



1
  Initially, we note that several individuals have faced criminal charges related to the events at issue in
this case. Several witnesses testified in each of the cases. In some instances, a name of a particular
witness may be spelled differently in other cases than the spelling in this case. We have elected to spell
witnesses’ names consistent with the spelling in the official trial transcript of this case.
Athens App. No. 09CA35                                                                 2


aggravated robbery separately or (2) whether he committed the crimes with a separate

animus.

{¶2}        Abdi next contends that the trial court erred when it denied Abdi’s motion for a

change of venue. Because Abdi failed to show that any jurors were actually biased, we

disagree.

{¶3}        Abdi next contends that the trial court erred when it failed to suppress

statements Abdi gave to the police. Because Abdi waived his Miranda rights voluntarily,

knowingly, and intelligently, we disagree.

{¶4}        Abdi next contends that the trial court erred by permitting the State to

introduce “other acts” evidence in violation of Evid.R. 404(B) when the trial court

allowed testimony that Abdi and his co-conspirators planned on committing a separate

robbery. Because the evidence was admissible under Evid.R. 404(B) to show Abdi’s

and his co-conspirators’ intent, we disagree. Additionally, any error by the trial court

was harmless considering the substantial evidence of Abdi’s guilt.

{¶5}        Abdi next contends that there was insufficient evidence to convict Abdi of

murder, or, alternatively, that Abdi’s conviction was against the manifest weight of the

evidence. Because Abdi engaged in aggravated robbery where gunfire and injury or

death to bystanders was foreseeable, and because the jury could convict Abdi for the

murder regardless of who fired the fatal shot, we disagree.

{¶6}        Abdi next contends that the trial court erred in permitting the State to call co-

conspirators as witnesses. Abdi argues that he was prejudiced because the State knew

that the witnesses would invoke their Fifth Amendment right against self-incrimination in

front of the jury. Because the State is permitted to call a witness who will invoke his or
Athens App. No. 09CA35                                                              3


her Fifth Amendment right against self-incrimination, so long as the State does not

persist in repeated questioning, we disagree.

{¶7}      Abdi next contends that the trial court erred in denying Abdi’s motion to

compel disclosure of grand jury testimony. Because Abdi failed to show a particularized

need for the grand jury testimony that outweighed the need for secrecy of the grand jury

proceedings, we disagree.

{¶8}      Abdi next contends that the trial court erred by failing to impose a sentence

consistent with the principles and purposes of sentencing and by failing to properly

consider the seriousness and recidivism factors under R.C. 2929.12. Because the

record reflects that the trial court considered the relevant factors under R.C. 2929.11,

2929.12, and 2929.13, we disagree.

{¶9}      Finally, Abdi contends that the trial court erred by sentencing Abdi to

consecutive terms of imprisonment without making findings of fact. Because the trial

court was not required to make findings of fact before sentencing Abdi to consecutive

terms of imprisonment, we disagree.

{¶10}     Accordingly, we reverse in part and affirm in part the judgment of the trial

court.

                                             I.

{¶11}     The events at issue in this case concern a shooting late in the evening on

February 14, 2009, which resulted in the death of Donnie Putnam (hereinafter

“Putnam”). The evidence introduced at trial was comprehensive and begins with events

that occurred well before the actual shooting. In December, 2008, Michael White

(hereinafter “White”) broke into Charles Calendine’s (hereinafter “Calendine”) residence
Athens App. No. 09CA35                                                             4


in Athens, Ohio. After doing so, White proceeded to steal a large number of firearms

from the residence.

{¶12}     Among the firearms stolen was a .22 Marlin semi-automatic rifle with an

optical scope. According to White, he estimated he had stolen 30 or 40 guns. White

then sold those guns to Phillip Boler (hereinafter “Boler”). At trial, Calendine confirmed

the theft and identified the .22 Marlin semi-automatic rifle recovered in this case as

being the one stolen from him.

{¶13}     The shooting that resulted in Putnam’s death occurred at a trailer owned by

Billy J. Osborne, Jr. (hereinafter “Osborne”). According to testimony at trial, Osborne

made money dealing marijuana and crack cocaine, but Osborne denied this on the

stand. The State’s theory was that Abdi and his co-conspirators armed themselves and

drove to Osborne’s trailer intent on committing a robbery.

{¶14}     In the early evening hours of February 14, 2009, Abdi, Mahat Osman

(hereinafter “Osman”), and Hamda Jama, also known as Honey, walked into the trailer

of Chelsea Deal (hereinafter “Deal”) without knocking. At the time, Deal was living with

her boyfriend, Luke (the record does not indicate Luke’s last name). Osman and Honey

were asking Luke about the whereabouts of a man named William Evans (hereinafter

“Evans”), who was an acquaintance of Luke and Deal. Deal overheard Osman state

that he wanted to “rob” Evans, and Abdi was standing nearby when Osman stated his

intentions. Tr. Day 4 at 29. Deal and Luke rebuffed repeated requests by Honey,

Osman, and Abdi to allow them to use Deal and Luke’s vehicle. Deal and Luke

eventually agreed to give Honey, Osman, and Abdi a ride to Nelsonville. Honey,

however, did not get in the car with the others, so Deal and Luke drove off with Osman
Athens App. No. 09CA35                                                               5


and Abdi. Instead of taking Osman and Abdi to Nelsonville, Deal testified that Osman

and Abdi demanded to be taken to a trailer occupied by Boler and a man known as

Halfman. (The record indicates that both Boler and Halfman occupied the trailer. We

will refer to the trailer as “Halfman’s trailer” for brevity.)

{¶15}      Earlier on February 14th, Honey purchased a red Mitsubishi Eclipse from

Ricky Phillips (hereinafter “Phillips”), a neighbor of Deal’s. The car had a manual

transmission, and Honey had no experience driving a manual transmission car. Jeremy

Graber (hereinafter “Graber”), a neighbor of Phillips (and Deal), agreed to give Honey a

driving lesson. (Honey apparently did not get in the car with Deal, Luke, Osman, and

Abdi because she was waiting on Graber.) Graber testified that, after driving around the

trailer park briefly, Honey drove onto the highway and drove to Halfman’s trailer.

{¶16}      Graber testified that there were quite a few people present at the trailer, and

he expressly identified Boler, Honey, Osman, and Abdi. Graber also observed both a

Marlin .22 rifle and a .40 caliber Smith and Wesson pistol at the trailer. Graber left and

eventually made his way home.

{¶17}      (Graber had also encountered Abdi the night before, i.e., February 13, 2009,

when Graber went to Halfman’s trailer. Shortly after entering the trailer, Graber testified

that Abdi slammed Graber against a wall, and Abdi and Boler demanded to know the

whereabouts of a man named “Johnny Perry.” Tr. Day 3 at 142. According to Graber,

Halfman yelled something to Abdi and Boler, so they backed off.)

{¶18}      Later in the evening of February 14th, Eric Fussner (hereinafter “Fussner”)

drove to Halfman’s trailer to purchase crack cocaine. Fussner completed this

transaction and was getting ready to leave when Boler and the other occupants of the
Athens App. No. 09CA35                                                             6


trailer asked Fussner for a ride. Fussner agreed and waited for them. When the

occupants took too long to get ready, Fussner attempted to leave without giving them a

ride. As he did so, Halfman drew a pistol and ordered him to stay.

{¶19}     Eventually, Boler, Osman, Abdi, Honey, and Fussner were ready to leave.

There were two cars, Fussner’s car and the red Mitsubishi Eclipse that Honey had

purchased from Phillips. As they got ready to leave, Abdi started to pull Fussner out of

his car, but Boler told Abdi to leave Fussner alone. Boler and Fussner drove the two

cars to Osborne’s trailer. Fussner was in his car along with Osman and Abdi. Boler

was in the red Mitsubishi Eclipse with Honey.

{¶20}     When they arrived at the destination, Boler, Osman, and Abdi exited the

vehicles. Boler carried the .22 Marlin and stated to Osman that he would have “his”

head in his sights the whole time. Osman and Abdi then walked up to Osborne’s trailer.

{¶21}     That evening, Shane Benson (hereinafter “Benson”) and his friend John Perry

Jr. (hereinafter “Perry”) were in the dining room of Osborne’s trailer smoking crack

cocaine. Someone (the record is not precisely clear on who) noticed the cars

approaching the trailer. Because of information he had received previously, Osborne

was concerned that the individuals in the cars wanted to rob him. Earlier that day,

Osborne had retrieved several guns and had placed them in readily accessible locations

in the trailer. He placed a 9 millimeter semi-automatic pistol on top of the television. He

placed an SKS semi-automatic rifle next to the front door. And finally, he leaned a

shotgun up against a countertop.

{¶22}     Osman and Abdi knocked on Osborne’s front door. Osborne partially opened

it and asked what they wanted. Osman and Abdi demanded to speak with “Johnny.”
Athens App. No. 09CA35                                                              7


Osborne said that Johnny was not there and that he (i.e., Osborne) had children in the

trailer. Abdi drew a .40 caliber semi-automatic Smith and Wesson pistol and pressed it

against Osborne’s gut. Osborne grabbed the pistol and pushed it aside. As the two

men struggled over the pistol, Abdi fired the gun twice. Eventually, Osborne

manipulated the pistol so that it pointed towards Abdi’s head. At this point, Abdi turned

and ran letting go of the pistol.

{¶23}      The front door of Osborne’s trailer opened to the outside. After Osborne

wrested the pistol away from Abdi, Osborne stood slightly outside his trailer. Osman

then slammed against the front door knocking Osborne against the wall. Osborne

shoved the door back open and knocked Osman backwards. Osman then ran from the

porch.

{¶24}      At this point, multiple individuals began firing weapons. Osborne fired the gun

he wrested from Abdi until he ran out of bullets. Osborne then retrieved his SKS

semiautomatic rifle and fired several rounds until it jammed. Osman fired some rounds

as he retreated from the trailer with Abdi. Perry fired four rounds from a 9mm pistol,

and Boler fired at least three rounds from the .22 Marlin rifle. Finally, Benson fired at

least one shell from a shotgun.

{¶25}      During the struggle, Putnam, who was a friend of Osborne, arrived on the

scene with his girlfriend Missy Swart. Putnam saw Osborne struggling with two men on

his front porch. Putnam got out of his car and started to move towards the porch. A

9mm round struck Putnam during the exchange of gunfire. The bullet punctured

Putnam’s right lung. Mortally wounded, Putnam fell to the ground and was later

pronounced dead at a hospital.
Athens App. No. 09CA35                                                                          8


{¶26}       When the gunfire started, Fussner kept his head down, backed his car out of

the driveway, and drove off. As a result, Osman, Abdi, Honey, and Boler all piled into

the red Mitsubishi. Due to the speed of the escape, however, the car crashed shortly

after leaving Osborne’s trailer. Boler remained in the area of the wreck, but Osman,

Abdi, and Honey fled on foot.

{¶27}       Paramedics were called to the scene of the shooting. One of the dispatched

squads instead encountered the overturned red Mitsubishi. The paramedics found

Boler who appeared dazed and confused after the accident. While one of the

paramedics was treating Boler, several Athens County Sheriff’s officers arrived and

arrested Boler. Officers of the Ohio State Highway Patrol eventually apprehended

Boler’s co-conspirators, and Abdi was among those arrested.

{¶28}       Lieutenant Bryan Cooper (hereinafter “Lt. Cooper”) of the Athens County

Sheriff’s department interviewed Abdi multiple times, two of which are relevant to Abdi’s

appeal. Lt. Cooper first interviewed Abdi beginning at 4:39 a.m. on February 15, and he

interviewed Abdi again beginning at 11:26 a.m. on the same day. At the beginning of

the first interview, Abdi indicated that his birthday was 1/1/1992;2 he was in the tenth

grade; he could read and write English; he was not taking prescription medication; and

he was not under the influence of drugs or alcohol. Lt. Cooper then read Abdi each of

Abdi’s Miranda rights, and Abdi waived those rights verbally and in writing. Abdi then

informed Lt. Cooper that Abdi would like to talk about the incident.

{¶29}       At the beginning of the second interview, Lt. Cooper advised Abdi that he was

still under the Miranda warnings. Abdi then reiterated that he wished to talk to Lt.


2
 Although Abdi indicated to Lt. Cooper that his birthday was 1/1/1992, his actual birthday is December
26, 1992.
Athens App. No. 09CA35                                                             9


Cooper about the incident. The second interview was eventually played to the jury at

trial, and during that interview, Abdi confessed that he and his co-conspirators took

weapons to Osborne’s house to commit a robbery.

{¶30}     The case was tried to a jury. The jury returned a verdict finding Abdi guilty of

aggravated robbery, in violation of R.C. 2911.01(A)(1); aggravated robbery, in violation

of R.C. 2911.01(A)(3); and murder, in violation of R.C. 2903.02(B). In addition, the jury

found Abdi guilty of a firearm specification pursuant to R.C. 2941.145 for each count of

aggravated robbery and the murder. The trial court sentenced Abdi to ten years for

each aggravated robbery conviction, three years for each firearm specification, and

fifteen years to life for the murder conviction. The trial court merged the sentences for

the aggravated robbery convictions. The trial court also merged the sentences for the

firearm specifications. The trial court ordered all other sentences to be served

consecutively for an aggregate sentence of 28 years to life.

{¶31}     Abdi appeals and assigns the following errors for our review: I. “The Trial

Court erred to the prejudice of Defendant, in violation of the Defendant’s rights under

the 5th and 14th Amendments to the United States Constitution, in failing to merge the

conviction for felony murder under Ohio R.C. §2903.02(B) with the convictions for

aggravated robbery under Ohio R.C. §2911.01, since the offenses are allied offenses of

similar import under Ohio R.C. § 2941.25, and aggravated robbery which results in the

death of a person is a lesser included offense of felony murder.” II. “The Trial Court

erred to the prejudice of Defendant, and in violation of his rights under the 6th and 14th

Amendment to the Constitution of the United States, in denying the Defendant’s Motion

for Change of Venue.” III. “The Trial Court erred to the prejudice of Defendant, and in
Athens App. No. 09CA35                                                                 10


violation of his rights under the 5th, 6th, and 14th Amendment to the Constitution of the

United States, in denying his Motion to Suppress the statements made by the

Defendant to the police.” IV. “The Trial Court erred to the prejudice of Defendant, and in

violation of his rights under the 14th Amendment to the Constitution of the United

States, in permitting the State to introduce ‘other acts,’ in contravention to Ohio Evid.R.

404(B).” V. “The Trial Court erred to the prejudice of Defendant, and in violation of his

rights under the 14th Amendment to the Constitution of the United States, by entering

judgment against the Defendant on the charge of murder, as the evidence was

insufficient to sustain the conviction, or, in the alternative, the conviction was against the

manifest weight of the evidence.” VI. “The Trial Court erred to the prejudice of

Defendant, and in violation of his rights under the 14th Amendment to the Constitution

of the United States, in permitting the prosecutor to call two-codefendants as witnesses

for the sole purpose of having such witnesses invoke their 5th Amendment right against

self-incrimination before the jury.” VII. “The Trial Court erred to the prejudice of

Defendant, and in violation of his rights under the 6th and 14th Amendment to the

Constitution of the United States, in denying Defendant’s Motion to Compel Disclosure

of Grand Jury Testimony.” VIII. “The Trial Court erred to the prejudice of Defendant in

failing to impose a sentence consistent with the principles and purposes of sentencing

under Ohio R.C. §2929.11, and proper consideration of the seriousness and recidivism

factors under Ohio R.C. §2929.12.” And, IX. “The Trial Court erred to the prejudice of

Defendant, and in violation of his rights under the 14th Amendment to the Constitution

of the United States, in sentencing Defendant to consecutive terms of imprisonment

with [sic] making findings of fact under Ohio R.C. §2929.14(E)(4).”
Athens App. No. 09CA35                                                             11


                                             II.

{¶32}     In his first assignment of error, Abdi contends that the trial court erred by

failing to merge his convictions for felony murder and aggravated robbery because they

are allied offenses of similar import. This issue presents a legal question, which we

review de novo. See, e.g., State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935,

at ¶5.

{¶33}     Under Ohio law, “[w]here 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.” R.C. 2941.25(A). But “[w]here 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(B).

{¶34}     This statute “codified the judicial doctrine of merger” and “prohibited the

‘cumulative punishment of a defendant for the same criminal act where his conduct can

be construed to constitute two statutory offenses, when, in substance and effect, only

one offense has been committed.’” State v. Ware (1980), 63 Ohio St.2d 84, 86, quoting

State v. Roberts (1980), 62 Ohio St.2d 170, 172-73.

{¶35}     The Supreme Court of Ohio has recently overruled its prior judgments in this

area of the law, and it articulated the proper analysis for determining whether merger is

appropriate. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, at ¶44. “In

determining whether offenses are allied offenses of similar import under R.C.
Athens App. No. 09CA35                                                              12


2941.25(A), the question is whether it is possible to commit one offense and commit the

other with the same conduct, not whether it is possible to commit one without

committing the other. [State v.] Blankenship, 38 Ohio St.3d [116,] 119[,] (Whiteside, J.,

concurring) (‘It is not necessary that both crimes are always committed by the same

conduct but, rather, it is sufficient if both offenses can be committed by the same

conduct. It is a matter of possibility, rather than certainty, that the same conduct will

constitute commission of both offenses.’ [Emphasis sic]). * * *

{¶36}     “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ [State v.] Brown, 119 Ohio St.3d

447, 2008-Ohio-4569[,] at ¶50 (Lanzinger, J., dissenting).

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

of similar import and will be merged.

{¶38}     “Conversely, if the court determines that the commission of one offense will

never result in the commission of the other, or if the offenses are committed separately,

or if the defendant has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.” Johnson at ¶48-51 (emphasis sic).

{¶39}     Clearly an offender could, with the same conduct, commit aggravated robbery

and felony murder. Therefore, aggravated robbery and felony murder are allied

offenses of similar import.

{¶40}     Here, Abdi’s counsel failed to raise any objection on this basis at the

sentencing hearing. And pursuant to Crim.R. 52(B), we review any error for plain error.

The Supreme Court of Ohio has “previously held that the imposition of multiple
Athens App. No. 09CA35                                                              13


sentences for allied offenses of similar import is plain error.” State v Underwood, 124

Ohio St.3d 365, 2010-Ohio-1, at ¶31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-

Ohio-6087, at ¶96-102.

{¶41}     Even though felony murder and the predicate felony (here, aggravated

robbery) are allied offenses of similar import, Abdi may still be sentenced for both

crimes. In order to sentence Abdi for both crimes, the State must show that Abdi

committed the crimes “separately or with a separate animus.” See R.C. 2941.25(B).

{¶42}     Because aggravated robbery and felony murder are allied offenses of similar

import, we remand the present case for resentencing. On remand, the trial court should

consider whether Abdi committed felony murder separately or with a separate animus

from his aggravated robbery conviction and sentence Abdi accordingly.

{¶43}     Accordingly, we sustain Abdi’s first assignment of error.

                                            III.

{¶44}     In his second assignment of error, Abdi contends that the trial court erred by

failing to grant his motion for a change of venue.

{¶45}     “Upon the motion of any party or upon its own motion the court may transfer

an action to any court having jurisdiction of the subject matter outside the county in

which trial would otherwise be held, when it appears that a fair and impartial trial cannot

be held in the court in which the action is pending.” Crim.R. 18(B).

{¶46}     “A change of venue rests largely in the discretion of the trial court, and * * *

appellate courts should not disturb the trial court’s ruling on a motion for change of

venue in a criminal case unless it is clearly shown that the trial court has abused its

discretion.” State v. Fairbanks (1972), 32 Ohio St.2d 34, 37 (citations omitted); see,
Athens App. No. 09CA35                                                                 14


also, State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285, at ¶30. “An

abuse of discretion connotes more than an error of law or judgment; it implies that the

trial court acted unreasonably, arbitrarily, or unconscionably.” Id. at ¶30, citing

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶47}      Abdi contends that the trial court should have granted his motion for a change

of venue due to the pre-trial publicity surrounding his and his co-conspirators’ cases. In

addition to the criminal rule cited above, the United States Supreme Court has held that

“[d]ue process requires that the accused receive a trial by an impartial jury free from

outside influences[, and] * * * where there is a reasonable likelihood that prejudicial

news prior to trial will prevent a fair trial, the judge should continue the case until the

threat abates, or transfer it to another county not so permeated with publicity.”

Sheppard v. Maxwell (1966), 384 U.S. 333, 362-63; see, also, State ex rel. Toledo

Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533,

at ¶23 (“[T]he Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution secure the criminal defendant’s right to a fair trial. * * *

Pervasive, unfair, and prejudicial media coverage of a criminal trial can sometimes

deprive a criminal defendant of this constitutional right.”).

{¶48}      “However, ‘pretrial publicity[,] even pervasive, adverse publicity[,] does not

inevitably lead to an unfair trial.’” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, at ¶58, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554

(alterations sic). “A defendant claiming that pretrial publicity has denied him a fair trial

must show that one or more jurors were actually biased.” State v. Treesh, 90 Ohio

St.3d 460, 464, 2001-Ohio-4, citing Mayola v. Alabama (C.A.5, 1980), 623 F.2d 992,
Athens App. No. 09CA35                                                             15


996. “Only in rare cases may prejudice be presumed.” Treesh at 464, citing Mayola at

997; see, also State v. Lundgren, 73 Ohio St.3d 474, 479, 1995-Ohio-227. The fact that

extensive, pre-trial publicity indicated that a co-defendant had recently been convicted is

insufficient to establish prejudice. See State v. Hill (March 22, 1995), Belmont App. No.

90-B-5; State v. Deavors (Sep. 13, 1979), Montgomery App. No. CA 6095.

{¶49}     Abdi argues that he has satisfied his burden by filing materials with the trial

court demonstrating the extensive publicity of his and his co-conspirators’ cases. Abdi

argues that, because of the pre-trial publicity, the prospective jurors were familiar with

Abdi’s and his co-conspirators’ cases. According to Abdi, the pre-trial publicity indicated

that two of his co-conspirators were convicted.

{¶50}     The trial court did not err in denying Abdi’s motion for a change of venue.

The trial court conducted an extensive voir dire of all prospective jurors, which lasted

two days. The defense had ample opportunity to discover evidence of juror bias. Abdi

failed to show that any jurors were actually biased based on pre-trial publicity (or based

on any other reason).

{¶51}     Abdi has also failed to show that the entire jury pool was aware of his co-

conspirators’ cases such that Abdi did not receive a fair trial. On appeal, Abdi selects

quotes from four prospective jurors indicating that those jurors were aware that Abdi’s

co-conspirators had been found guilty. Only one of these jurors was seated on the final

panel, and Abdi cannot point to actual bias on the part of this juror. Additionally, Abdi’s

trial counsel passed on using a peremptory challenge that would have excused this

juror. (Abdi’s counsel subsequently used the peremptory challenge on a juror who was

seated later in the jury selection process). The other three prospective jurors did not sit
Athens App. No. 09CA35                                                                16


on the final panel. In fact, the State successfully moved to dismiss one of these jurors

for cause (based on the juror having a pending court case), and Abdi’s trial counsel

objected to her dismissal.

{¶52}      Absent evidence of actual bias, Abdi’s attempt to demonstrate prejudice,

based on extensive pre-trial publicity of Abdi’s and his co-conspirators’ cases, is

insufficient to show that Abdi did not receive a fair trial. Therefore, the trial court did not

abuse its discretion by denying Abdi’s motion for a change of venue.

{¶53}      Accordingly, we overrule Abdi’s second assignment of error.

                                              IV.

{¶54}      In his third assignment of error, Abdi contends that the trial court erred when it

failed to grant his motion to suppress. “‘[A]ppellate review of a trial court’s decision

regarding a motion to suppress evidence involves mixed questions of law and fact.’”

State v. Featherstone, 150 Ohio App.3d 24, 2002-Ohio-6028, at ¶10, quoting State v.

Vest, Ross App. No. 00CA2576, 2001-Ohio-2394 (alteration sic). “At a suppression

hearing, the evaluation of evidence and the credibility of witnesses are issues for the

trier of fact.” State v. Mills (1992), 62 Ohio St.3d 357, 366 (citation omitted).

Consequently, in its review, an appellate court must accept the trial court’s findings of

fact if they are supported by competent, credible evidence. State v. Guysinger (1993),

86 Ohio App.3d 592, 594. However, an appellate court determines as a matter of law,

without deferring to the trial court’s conclusions, whether these facts meet the applicable

legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488.

{¶55}      A waiver of the Fifth Amendment right not to incriminate oneself must be

made “voluntarily, knowingly and intelligently.” Miranda v. Arizona (1966), 384 U.S.
Athens App. No. 09CA35                                                                      17


436, 444. Absent evidence that coercive police conduct overcame a defendant’s will

and critically impaired his capacity for self-determination, we presume that a

defendant’s decision to waive his Fifth Amendment privilege was voluntary. State v.

Dailey (1990), 53 Ohio St.3d 88, 91-92. To determine whether a waiver was voluntary,

the court must consider “the totality of the circumstances” and look specifically at the

defendant’s “age, mentality, and prior criminal experience * * *; the length, intensity, and

frequency of interrogation; the existence of physical deprivation or mistreatment; and

the existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, at

paragraph two of the syllabus, overruled on other grounds by Edwards v. Ohio (1978),

438 U.S. 911. Evidence that the defendant signed a written waiver of his rights is

strong proof that the waiver is valid. State v. Dennis, 79 Ohio St.3d 421, 425, 1997-

Ohio-372.

{¶56}       Abdi contends that the waiver of Miranda rights obtained by Lt. Cooper was

an involuntary waiver. And thus, Abdi argues the trial court erred by failing to suppress

the resulting confession. Abdi contends that the following facts support a finding that

his waiver was involuntary under the Edwards factors: he was only sixteen years old at

the time of the interview;3 he had only one prior experience with law enforcement; his

parents were not present; and the length and nature of his detention before the

interrogation began.

{¶57}       Here, we find that the trial court did not err in denying Abdi’s motion to

suppress. The police interviewed Abdi multiple times, but only two interviews are

relevant for purposes of Abdi’s appeal. Lt. Cooper first interviewed Abdi on February

3
 We note that Abdi indicated to Lt. Cooper that his birthday was “1/1/1992,” which would have made him
seventeen at the time of the interview. As stated above, however, his actual birthday is December 26,
1992. Thus, Abdi was sixteen years old at the time of the interview.
Athens App. No. 09CA35                                                            18


15, 2009, at 4:39 a.m. This interview lasted about an hour. Lt. Cooper then interviewed

Abdi a second time at 11:26 a.m. on the same day. Abdi indicated that he could read

and write the English Language. Abdi also indicated that he was not taking prescribed

medication and that he was not under the influence of alcohol or drugs. At the

beginning of the first interview, Lt. Cooper explained Adbi’s Miranda rights, and Abdi

waived them verbally and in writing. Additionally, Abdi repeatedly stated to Lt. Cooper

that he wanted to talk about the incident at the beginning of the first interview and again

at the beginning of the second interview.

{¶58}     The Edwards factors Abdi cites do not support Abdi’s argument that his

waiver of Miranda rights was involuntary. There is no evidence that Abdi’s age

prevented him from understanding the rights he was waiving. Also, Abdi’s inexperience

with law enforcement does not demonstrate that his waiver was involuntary. Abdi

stated that he had been to “juvie” for carrying a concealed weapon, so he had some

experience in the justice system. Finally, Abdi did not have the right to have his parents

present before waiving his Miranda rights. See State v. Bobo (1989), 65 Ohio App.3d

685, 690 (“Though the greatest care must be taken to assure a juvenile’s admissions

are voluntary, parental presence is not constitutionally mandated.”).

{¶59}     Abdi argues that the prolonged nature of his detention and interrogation and

the fact that he had just been in an automobile accident demonstrate that his confession

was involuntary. The record, however, does not support Abdi’s claim. There is no

evidence that the Athens County Sherriff’s department deprived Abdi of sleep (or

otherwise mistreated him) while he was in custody. Additionally, Abdi stated that he
Athens App. No. 09CA35                                                              19


was “fine” when Lt. Cooper asked how he was feeling. And as stated above, Abdi

repeatedly indicated that he wanted to speak with Lt. Cooper about the incident.

{¶60}      Thus, Abdi waived his Miranda rights voluntarily, knowingly, and intelligently,

and the trial court correctly denied his motion to suppress. Accordingly, we overrule

Abdi’s third assignment of error.

                                             V.

{¶61}      In his fourth assignment of error, Abdi contends that the trial court erred by

allowing the State to introduce other acts evidence in violation of Evid.R. 404(B).

{¶62}      “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, at paragraph two

of the syllabus.

{¶63}      “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R.

404(B). For proper admissibility, the trial court must determine that: (1) the other act is

relevant to the crime in question, and (2) evidence of the other act is relevant to an

issue placed in question at trial. State v. McCornell (1993), 91 Ohio App.3d 141, 146,

citing State v. Howard (1978), 57 Ohio App.2d 1, 6; State v. Strong (1963), 119 Ohio

App. 31.

{¶64}      If a trial court inappropriately admits evidence in violation of Evid.R. 404(B),

we apply a non-constitutional harmless-error analysis. State v. Murphy, Scioto App. No.
Athens App. No. 09CA35                                                             20


09CA3311, 2010-Ohio-5031, at ¶80. “A non-constitutional error is harmless when there

is substantial other evidence to support the guilty verdict.” Id.

{¶65}     At trial, Deal testified that she overheard Osman stating that he wanted to rob

William Evans. Deal also testified that Abdi was standing near Osman when Osman

stated this. Abdi contends that “[t]he only real impact of [the witness’s] testimony was to

portray [Abdi] as somebody intent on robbing someone.”

{¶66}     The trial court properly instructed the jury that “[a]ny evidence that the

defendant committed wrongs or acts other than the offenses for which he is presently

on trial was received only for a limited purpose. Such evidence is not admissible to

prove the character of the defendant in order to show action in conforming with that

character. * * * However, you may consider such evidence as proof of motive, intent,

preparation, plan and knowledge.” Trial Transcript, Day 4, 33-34.

{¶67}     As the trial court instructed, this evidence was admissible to show that the

speaker (here, Osman) intended to commit a robbery that evening. The evidence

demonstrated Osman’s intentions. And Abdi was clearly one of Osman’s co-

conspirators. The testimony is not impermissible propensity evidence just because

Osman’s plans changed, and Osman, Abdi, Honey, and Boler decided to rob someone

other than Evans. The evidence does not show that Osman or Abdi committed a

robbery in the past, and, therefore, one or both of them must have committed the

Osborne robbery. Instead, the evidence shows Osman’s intent on the evening in

question. Considering that Osman and Abdi went to Osborne’s house and confronted

Osborne with a pistol, Osman’s statement regarding Evans was relevant to whether

Osman, Abdi, Boler, and Honey intended to commit a robbery at Osborne’s trailer.
Athens App. No. 09CA35                                                             21


{¶68}     Even if we accept Abdi’s argument that this was impermissible propensity

evidence, we find any error harmless. The evidence against Abdi is substantial. Abdi

confessed that he and his co-conspirators went to Osborne’s trailer intent on committing

a robbery. And multiple witnesses testified to Abdi’s involvement in the robbery.

Additionally, the trial court properly instructed the jury not to consider the evidence as

propensity evidence.

{¶69}     Accordingly, we overrule Abdi’s fourth assignment of error.

                                             VI.

{¶70}     In his fifth assignment of error, Abdi contends that the evidence supporting his

conviction is insufficient, and Abdi also contends that his conviction is against the

manifest weight of the evidence. Because these arguments rely on distinct standards of

review, we consider them separately.

                                             A.

{¶71}     Abdi first contends that his conviction for felony murder is not supported by

sufficient evidence. When reviewing a case to determine whether the record contains

sufficient evidence to support a criminal conviction, our function “is to examine the

evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, at

paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307,

319.
Athens App. No. 09CA35                                                                  22


{¶72}      This test raises a question of law and does not allow the court to weigh the

evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full

play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility

of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,

79-80; State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph one of the syllabus.

{¶73}      Abdi specifically points to the requirement that the State prove that Putnam’s

death was proximately caused by Abdi’s actions. Ohio’s felony murder statute provides:

“No person shall cause the death of another as a proximate result of the offender’s

committing or attempting to commit an offense of violence that is a felony of the first or

second degree[.]” R.C. 2903.02(B). The jury found Abdi guilty of aggravated robbery in

violation of both R.C. 2911.01(A)(1) and R.C. 2911.01(A)(3), which are felonies of the

first degree. R.C. 2911.01(C).

{¶74}      Under Ohio law, “it is irrelevant whether the killer is the defendant, an

accomplice, or a third party.” State v. Ford, Franklin App. No. 07AP-803, 2008-Ohio-

4373, at ¶32, citing State v. Franklin, Mahoning App. No. 06-MA-79, 2008-Ohio-2264, at

¶111. “‘[A d]efendant can be held criminally responsible for the killing regardless of the

identity of the person killed or the identity of the person whose act directly caused the

death, so long as the death is the ‘proximate result’ of [the d]efendant’s conduct in

committing the underlying felony offense; that is, a direct, natural, reasonably

foreseeable consequence, as opposed to an extraordinary or surprising consequence,

when viewed in the light of ordinary experience.’” State v. Ervin, Cuyahoga App. No.
Athens App. No. 09CA35                                                             23


87333, 2006-Ohio-4498, at ¶25, quoting State v. Dixon, Montgomery App. No. 18582,

2002-Ohio-541 (other citations omitted). See, also, State v. Chambers (1977), 53 Ohio

App.2d 266, 268-69 (applying proximate cause standard to a similar involuntary

manslaughter statute). “‘It is not necessary that the accused [be] in a position to

foresee the precise consequence of his conduct; only that the consequence be

foreseeable in the sense that what actually transpired was natural and logical in that it

was within the scope of the risk created by his conduct.’” State v. Lovelace (1999), 137

Ohio App.3d 206, 219-20, quoting State v. Losey (1985), 23 Ohio App.3d 93, 96

(alteration sic).

{¶75}      Abdi asserts that there were two intervening criminal acts. Therefore, Abdi

argues that he should not be held criminally liable for proximately causing Putnam’s

death. First, Abdi asserts that Perry actually fired the fatal bullet and that Abdi and

Osman were in full flight from the trailer when Perry fired. According to Abdi, Perry no

longer had any right to use deadly force in self defense, so Perry was committing a

crime when he fired the 9mm pistol. Second, Abdi argues that Putnam went to

Osborne’s trailer to commit a crime (i.e., to buy drugs).

{¶76}      Neither of Abdi’s arguments is persuasive. “Only a reasonably unforeseeable

intervening cause will absolve one of criminal liability in this context.” State v. Dykas,

185 Ohio App.3d 763, 2010-Ohio-359, at ¶25, citing Lovelace at 215. Even intervening

criminal conduct does not prevent an offender’s actions from being the proximate cause

so long as that intervening conduct was foreseeable. See Lovelace at 219 (holding that

police officer’s criminal conduct during a high-speed chase, which directly caused a
Athens App. No. 09CA35                                                             24


motorist’s death, was foreseeable, and, therefore, defendant could be held criminally

liable for proximately causing the motorist’s death).

{¶77}     Thus, even if we accept Abdi’s premise that Perry fired the fatal round

illegally, Abdi’s argument still fails. The prosecution introduced considerable evidence

that allowed the jury to conclude that Abdi and Osman approached Osborne’s trailer

intent on robbing Osborne at gunpoint. This confrontation could foreseeably lead to a

fight involving firearms. Whether an individual in the gunfight was justified in acting in

self-defense or the defense of another is irrelevant to the issue of Abdi’s guilt. The

death of a bystander, such as Putnam, was foreseeable.

{¶78}     Furthermore, we do not need to accept the premise that Perry was not

justified in firing the 9mm pistol. Fussner testified that Osman and Abdi fired at Osborne

as they retreated from the trailer. Given the timeline, the jury could have relied on this

evidence to determine that Perry was still justified in firing his weapon.

{¶79}     As to Putnam’s intent to purchase drugs, the defense several times elicited

testimony that tended to show Osborne was known as someone who sold drugs. The

presence of a drug user seeking to purchase drugs from a drug dealer is a foreseeable

circumstance. Even if Putnam intended to buy drugs from Osborne, Putnam was still an

innocent bystander with respect to the armed robbery that led to the fatal gunfire.

{¶80}     Accordingly, we find that Abdi’s conviction for felony murder is supported by

sufficient evidence. Specifically, we find that 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 of murder proven beyond a reasonable doubt.

                                             B.
Athens App. No. 09CA35                                                              25


{¶81}       Abdi next contends that his conviction for felony murder is against the

manifest weight of the evidence. When determining whether a criminal conviction is

against the manifest weight of the evidence, we “will not reverse a conviction where

there is substantial evidence upon which the [trier of fact] could reasonably conclude

that all the elements of an offense have been proven beyond a reasonable doubt.”

State v. Eskridge (1988), 38 Ohio St.3d 56, at paragraph two of the syllabus. See, also,

State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the

entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial granted.” Smith, 2007-Ohio-502, at ¶41,

citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-71; Martin at 175. “The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.” Martin at 175 (citations

omitted).

{¶82}       “Even in our role as thirteenth juror we are constrained by the rule that the

weight to be given evidence and the credibility to be afforded testimony are normally

issues to be determined by the trier of fact. * * * The fact finder is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony. * * * Thus, we will

only interfere if the fact finder clearly lost its way and created a manifest miscarriage of

justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations

omitted).
Athens App. No. 09CA35                                                             26


{¶83}     Here, Abdi confessed that he and his co-conspirators went to Osborne’s

trailer with firearms to commit a robbery. The evidence was also clear that Abdi pushed

a pistol into Osborne’s gut when Abdi and Osman confronted Osborne. The jury did not

clearly lose its way when it concluded that Abdi committed aggravated robbery and that

the death of a bystander was a foreseeable result of the aggravated robbery. Thus, we

do not find that Abdi’s conviction is a manifest miscarriage of justice. Substantial

evidence supports his conviction for felony murder.

{¶84}     Accordingly, we overrule Abdi’s fifth assignment of error.

                                            VII.

{¶85}     In his sixth assignment of error, Abdi contends that the trial court erred when

it allowed the State to call two of Abdi’s co-conspirators to testify. Abdi argues that he

was prejudiced because the witnesses took the stand solely to invoke their Fifth

Amendment privilege against self-incrimination.

{¶86}     As stated above, “[t]he admission or exclusion of relevant evidence rests

within the sound discretion of the trial court.” Sage at paragraph two of the syllabus.

{¶87}     The Supreme Court of Ohio has held that “[a] witness, even though he has

previously indicated that he will refuse to testify on the ground that to do so would

incriminate him, may be called as a witness.” State v. Dinsio (1964), 176 Ohio St. 460,

466. “The court [does] not commit prejudicial error in allowing the prosecutor for the

state to call the witness and to pursue his inquiry sufficiently to determine whether the

witness intended to claim the privilege of immunity. Once it [is] established that the

witness intend[s] to claim his privilege of immunity, the court commit[s] error prejudicial

to the defendant in permitting the prosecutor to continue his line of questioning, which
Athens App. No. 09CA35                                                                 27


place[s] before the jury innuendo evidence or inferences of evidence which the state

could not get before the jury by direct testimony from the witness.” Id. at 468.

{¶88}     As we have previously held, “Dinsio is not violated when questioning is brief

and the prosecutor stops asking questions once it becomes clear that the witness will

not answer.” State v. Bowers, Hocking App. No. 06CA7, 2007-Ohio-3986, at ¶9.

{¶89}     Here, the State’s questioning ceased after Boler and Osman invoked their

right against self-incrimination. Therefore, the trial court did not violate Dinsio.

{¶90}     The State sought to use the assertions of privilege by Boler and Osman to

establish that Boler and Osman were “unavailable” to testify. The State was required to

show Boler’s and Osman’s unavailability in order to admit certain statements against

interest under Evid.R. 804(B)(3). Specifically, the State wanted to introduce Fussner’s

testimony that Boler stated to Osman that Boler would have “his” head in the sights of

Boler’s rifle; Deal’s testimony that Osman stated that he intended to rob William Evans;

and an undetermined statement by Boler where the trial court sustained an objection in

mid-answer.

{¶91}     “‘Unavailability as a witness’ includes any of the following situations in which

the declarant: (1) is exempted by ruling of the court on the ground of privilege from

testifying concerning the subject matter of the declarant’s statement[.]” Evid.R.

804(A)(1). “A showing of unavailability under Evid.R. 804 must be based on testimony

of witnesses rather than hearsay not under oath unless unavailability is conceded by the

party against whom the statement is being offered.” State v. Keairns (1984), 9 Ohio

St.3d 228, at paragraph three of the syllabus. Thus, under Keairns, the State was

obliged to demonstrate the unavailability of Boler and Osman through testimony.
Athens App. No. 09CA35                                                                 28


{¶92}      Abdi contends that any finding of unavailability should have been done out of

the hearing of the jury pursuant to Evid.R. 104(C). Abdi, however, made no such

argument before the trial court. The jury was properly instructed to draw no conclusion

from an individual’s assertion of Fifth Amendment privilege. And “‘[a] presumption

always exists that the jury has followed the instructions given to it by the trial court.’”

Murphy at ¶81, quoting Pang v. Minch (1990), 53 Ohio St.3d 186, at paragraph four of

the syllabus. Thus, the trial court did not abuse its discretion in allowing the State to call

Boler and Osman to the stand to assert their Fifth Amendment right against self-

incrimination.

{¶93}      Accordingly we overrule Abdi’s sixth assignment of error.

                                              VIII.

{¶94}      In his seventh assignment of error, Abdi contends that the trial court erred

when it denied his motion to compel disclosure of grand jury testimony.

{¶95}      “Disclosure of grand jury testimony, other than that of the defendant and co-

defendant, is controlled by Crim.R. 6(E)[,] * * * and the release of any such testimony for

use prior to or during trial is within the discretion of the trial court.” State v. Greer

(1981), 66 Ohio St.2d 139, at paragraph one of the syllabus.

{¶96}      Crim.R. 6(E) provides: “A grand juror, prosecuting attorney, interpreter,

stenographer, operator of a recording device, or typist who transcribes recorded

testimony, may disclose matters occurring before the grand jury * * * but may disclose

such matters only * * * when permitted by the court at the request of the defendant upon

a showing that grounds may exist for a motion to dismiss the indictment because of

matters occurring before the grand jury.”
Athens App. No. 09CA35                                                              29


{¶97}       “‘Grand jury proceedings are secret, and an accused is not entitled to inspect

grand jury transcripts either before or during trial unless the ends of justice require it and

there is a showing by the defense that a particularized need for disclosure exists which

outweighs the need for secrecy.’” State v. Greer (1981), 66 Ohio St.2d 139, 148,

quoting State v. Patterson (1971), 28 Ohio St.2d 181, at paragraph three of the

syllabus.

{¶98}       “‘[W]hen a defendant speculates that the grand jury testimony might have

contained material evidence or might have aided his cross-examination by revealing

contradictions, the trial court does not abuse its discretion by finding the defendant had

not shown a particularized need.’” State v. Shadoan, Adams App. No. 03CA764, 2004-

Ohio-1756, at ¶28, quoting State v. Mack, 73 Ohio St.3d 502, 508, 1995-Ohio-273

(other quotation omitted). “The claim that a witness’s grand jury testimony may differ

from trial testimony is insufficient to show a particularized need.” State v. Horger, 170

Ohio App.3d 383, 2007-Ohio-665, at ¶10, citing State v. Henness (1997), 79 Ohio St.3d

53, 62, 1997-Ohio-405.

{¶99}       Here, Abdi speculated before the trial court, and again on appeal, that

Osborne may have given contradictory testimony before the grand jury. Abdi contends

that Osborne gave other contradictory statements suggesting that Osman, rather than

Abdi, had pointed the pistol in Osborne’s gut at the doorway confrontation.

{¶100}      We find that the trial court did not abuse its discretion. Speculation that

Osborne’s grand jury testimony may have revealed contradictions is insufficient to justify

disclosure of grand jury testimony. Moreover, Osborne’s inconsistent statement

indicating Osman (and not Abdi) had threatened Osborne with a gun was admitted into
Athens App. No. 09CA35                                                                 30


evidence. Thus, the jury was aware that Osborne’s account of events had changed at

one point. Therefore, Abdi suffered no prejudice when the trial court denied his motion

to compel disclosure of the grand jury testimony. Accordingly, Abdi did not show a

particularized need for disclosure of the grand jury testimony, and the trial court

correctly denied Abdi’s motion.

{¶101}     Therefore, we overrule Abdi’s seventh assignment of error.

                                               IX.

{¶102}     In his eighth assignment of error, Abdi contends that the trial court erred when

it failed to grant appropriate weight to his lack of criminal history and youth during

sentencing.

{¶103}     “Appellate courts ‘apply a two-step approach [to review a sentence]. First,

[we] must examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall

be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App.

No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, at ¶4 (alterations sic). See, also, State v. Voycik, Washington App. Nos.

08CA33 & 08CA34, 2009-Ohio-3669, at ¶8.

{¶104}     In analyzing whether Abdi’s sentences are contrary to law, “[t]he only specific

guideline is that the sentence[s] must be within the statutory range[.]” State v. Welch,

Washington App. No. 08CA29, 2009-Ohio-2655, at ¶7, quoting State v. Ross, Adams

App. No. 08CA872, 2009-Ohio-877, at ¶10. See, also, Voycik at ¶9. In this case, Abdi

raises no argument for the proposition that the trial court sentenced him to a term of
Athens App. No. 09CA35                                                              31


imprisonment outside of the statutory range. Rather, Abdi contends that the trial court

failed to consider his lack of criminal history and youth as compared to his co-

conspirators Osman and Boler.

{¶105}    However, we find that the trial court was fully aware of Abdi’s youth and lack

of criminal history prior to sentencing. The trial court was entitled to give greater weight

to contrary arguments advanced by the State. At sentencing, Abdi’s counsel urged the

court to consider that Abdi was sixteen years old at the time of the incident and that

Abdi did not have a lengthy juvenile criminal record. The trial court had discretion to

find the nature and characteristics of the offense more persuasive than the mitigating

factors of youth and lack of criminal history. The trial court was not required to explicitly

state that it considered Abdi’s youth and lack of criminal history when deciding on a

proper sentence. See State v. Koclan, Ottawa App. No. OT-07-018, 2008-Ohio-74, at

¶10 (“[I]n exercising its discretion, sentencing courts must consider the provisions listed

in R.C. 2929.11 and 2929.12 as statutory factors to determine an appropriate felony

sentence. * * * [N]onetheless, a trial court is not required to state any findings on the

record in considering these factors.”) (citations omitted).

{¶106}    In its judgment entry, the trial court stated: “The court has considered the

record, oral statements, any victim impact statements, as well as the principles and

purposes of sentencing under R.C. 2929.11, and has balanced the seriousness and

recidivism factors under R.C. 2929.12. The Court has considered the factors under

R.C. 2929.13.” September 23, 2009 Judgment Entry at 2.
Athens App. No. 09CA35                                                              32


{¶107}    Thus, the record demonstrates that the trial court considered all relevant

factors when it sentenced Abdi. Accordingly, we overrule Abdi’s eighth assignment of

error.

                                             X.

{¶108}    For his ninth assignment of error, Abdi contends that the trial court erred by

sentencing him to consecutive sentences without making the required judicial findings of

fact under R.C. 2929.14(E)(4). The Supreme Court of Ohio held that those required

findings were unconstitutional. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at

paragraph three of the syllabus, citing Apprendi v. New Jersey (2000), 530 U.S. 466

and Blakely v. Washington (2004), 542 U.S. 296.

{¶109}    Abdi contends that this ruling is in conflict with a recent ruling from the

Supreme Court of the United States. Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.

711. Abdi is correct that, under Ice, the Supreme Court of Ohio had no need to strike

down R.C. 2929.14(E)(4). Id. at 714-15. Also, Abdi is correct that the Supreme Court

of the United States is final arbiter of the United States Constitution. See Minnesota v.

National Tea Co. (1940), 309 U.S. 551, 557; State v. Storch (1993), 66 Ohio St.3d 280,

291.

{¶110}    However, the Supreme Court of Ohio has rejected Abdi’s argument. “The

United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160[,] does

not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.

2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster.]” State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, at paragraph two of the syllabus.

{¶111}    Accordingly, we overrule Abdi’s ninth assignment of error.
Athens App. No. 09CA35                                                           33


                                            XI

{¶112}    In conclusion, we sustain Abdi’s first assignment of error and overrule all

others. The judgment of the trial court is reversed in part and affirmed in part. We

remand this cause to the trial court to consider (1) whether Abdi committed felony

murder and aggravated robbery separately or (2) whether he committed the crimes with

a separate animus.

                                                 JUDGMENT REVERSED, IN PART,
                                                 AND AFFIRMED, IN PART,
                                                 AND CAUSE REMANDED.
Athens App. No. 09CA35                                                          34


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE REVERSED, IN PART, AFFIRMED, IN
PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings
consistent with the opinion. Appellant and Appellee shall pay equally the costs herein
taxed.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.



       McFarland, J.: Concurs in Judgment and Opinion.
       Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error II,
                     III, V – IX; Concurs in Judgment Only as to Assignments of Error
                     I and IV.




                                         For the Court


                                         BY:
                                               Roger L. Kline, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
Athens App. No. 09CA35   35
