[Cite as State v. Westfall, 2019-Ohio-4039.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                 :   Hon. Patricia A. Delaney, J.
 -vs-                                            :
                                                 :   Case No. 2018CA00166
                                                 :
 ALYSSA WESTFALL                                 :
                                                 :
                                                 :
        Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Case No.
                                                     2018CR0353B



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              September 27, 2019




APPEARANCES:

 For Plaintiff-Appellee:                             For Defendant-Appellant:

 JOHN D. FERRERO, JR.                                EUGENE M. CAZANTES
 STARK CO. PROSECUTOR                                101 Central Plaza South, Ste. 1000
 KATHLEEN O. TATARSKY                                Canton, OH 44702
 110 Central Plaza South, Ste. 510
 Canton, OH 44702-1413
Stark County, Case No. 2018CA00166                                                     2

Delaney, J.

      {¶1} Appellant Alyssa Westfall appeals from the December 7, 2018 Judgment

Entry of the Stark County Court of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} This case arose on January 11, 2018, when two men died of gunshot

wounds in Monument Park. Appellant, her boyfriend Justin Griffith, and their friend Ryan

Geiger planned to rob a drug dealer of a pound of weed. Appellant remained at the trio’s

apartment throughout the ensuing debacle, but she was instrumental in planning the

attempted robbery that left two people dead.

                                  Appellee’s bill of particulars

      {¶3} Appellee’s bill of particulars sets forth appellee’s theory of the case:

                    [Appellant and co-defendant Geiger] developed a plan to rob

              someone for a pound of marijuana in order to get money. [Appellant]

              arranged the transaction with Nate Duncan, who along with others

              was supposed to be supplying the marijuana. On January 11, 2018,

              [co-defendant Geiger] and Justin Griffith left their apartment to meet

              up with Duncan to rob him. Both [appellant and co-defendant Geiger]

              were aware that Griffith had a firearm on his person when he left the

              apartment. The original meet up was to take place at a different

              location inside the city, however, the sellers changed the location.

              [Appellant] did maintain contact with both Griffith and Duncan from

              her apartment orchestrating the location of the meet. Additionally, at

              the seller’s request, [appellant] did transmit a photo as proof that
Stark County, Case No. 2018CA00166                                                         3


              Griffith had money to purchase the drugs knowing that Griffith did not

              have sufficient money to purchase the drugs and that he intended to

              rob the sellers.

                     Based upon [appellant’s] representations and facilitation of

              communications between Griffith and Duncan, Griffith and [co-

              defendant Geiger] met up with Duncan and Culver in Monument Park

              for the purpose of robbing Duncan and Culver for the drugs. During

              the commission of the robbery both Griffith and Culver drew guns

              and shot each other. Both sustained fatal gunshot wounds and died

              as a result.

                     Bill of Particulars, March 19, 2018.

                                       The evidence at trial

       {¶4} On January 11, 2018, around 9:37 p.m., Canton police received a

ShotSpotter alert from the area of Monument Park. The ShotSpotter system is comprised

of microphones throughout the city that pick up loud noises, including gunfire. If three

microphones pick up gunfire, the location of the sound is triangulated and an alert goes

out to the Canton Police Department.        In the instant case, the ShotSpotter system

recorded 2 gunshots at 9:37:10 p.m., and 5 gunshots at 9:37:15 p.m.

       {¶5} In this case, Officers Slone, Eckelberry, and Marks were among the first to

respond to the park. Slone established a perimeter on the well-traveled road running

through the park. He observed a man lying on the ground on his side, just off the roadway.

Officers rolled the man over and found a firearm in his left hand. The man was later

identified as appellant’s boyfriend, Justin Griffith. When the police came upon him, Griffith
Stark County, Case No. 2018CA00166                                                       4


was still alive but had sustained a gunshot wound to his chest. He was transported to

Aultman Hospital and was deceased upon arrival.

       {¶6} A short distance away, police stumbled upon the body of another individual

who was already deceased. This man was identified as Tyrell Culver and he, too, had a

firearm on his person. He had suffered multiple gunshot wounds.

       {¶7} Both firearms were collected and secured. Upon investigation of the scene,

no drugs or cash were found. Ultimately seven shell casings were found, one from each

round fired. It was later determined that both firearms were operable. The firearm found

near Culver had fired 4 rounds and the firearm found near Griffith had fired 3 rounds.

       {¶8} Detective Terry Monter investigated the shootings and learned Griffith had

been living in an apartment about 10 minutes away from the park. The apartment had

doorbell-style cameras that fed information to Griffith’s cell phone.        Through his

examination of videos from Griffith’s cell phone (the “Ring videos”), Monter interviewed

appellant and co-defendant Ryan Geiger.

                        Appellant’s recorded statement to investigators

       {¶9} Monter’s interview of appellant on January 12, 2018 was recorded and

played at trial as appellee’s Exhibit 8. The interview was also transcribed for purposes of

the record. The following information is adduced from appellant’s Mirandized statement

to Monter. Appellant was not in custody when she made the statement.

       {¶10} Appellant and Justin Griffith were living together in the 900 block of Fulton

Road Northwest, Canton. Appellant was pregnant with Griffith’s child. Griffith’s friend

Geiger had been living with them in the apartment for a few weeks.
Stark County, Case No. 2018CA00166                                                      5


       {¶11} Appellant, Griffith and Geiger discussed “hitting a lick” because they needed

money “to be ready for the baby” and to save for a car. Appellant claimed she didn’t think

Griffith was serious “at first.”

       {¶12} To arrange a transaction, appellant admitted she reached out to an old

friend of hers, Nate Duncan, via Facebook Messenger. She also spoke to Duncan on the

phone (using Geiger’s phone so Duncan would not have her number). Appellant asked

Duncan for “a pound of weed” and the price discussed was $2,800. Appellant asked for

a photo of the marijuana, which Duncan did not send. Duncan asked for a photo of the

cash, and appellant sent one. Appellant said Griffith provided her with an “old” photo of

cash because the pair did not actually have the amount discussed in the transaction.

       {¶13} Duncan told appellant he was with his friend Tyrell [Culver], whom appellant

did not know. Although they discussed a few possible locations, ultimately an agreement

was reached for Duncan and Griffith to meet at Monument Park.

       {¶14} Appellant remained behind in the apartment while Griffith went to make the

transaction. Appellant said the last time she spoke to Griffith, he said Duncan arrived

with a car full of people he didn’t know.

       {¶15} The parties had at first discussed meeting at a school, to make the targets

of the robbery “feel comfortable.” The location changed several times, however, with

Griffith suggesting the park. Duncan messaged appellant when he was parked inside the

park and asked where they were supposed to meet. Appellant gave him a number to call.

       {¶16} Geiger later told appellant three people got out of the car with Duncan.

Appellant was aware Griffith went to the meeting with a gun; Geiger was unarmed. Geiger

told appellant that when Duncan and his group arrived, someone in the group wanted to
Stark County, Case No. 2018CA00166                                                        6


pat down Griffith and Geiger. Geiger consented but Griffith refused. Geiger told her that

when guns were pulled, everyone ran. Geiger told appellant he took off running and he

didn’t know what happened to Griffith.

                                         The Ring videos

       {¶17} Appellee’s Exhibit 12 is a disk of videos from the Ring cameras that went to

Griffith’s phone. The videos effectively illustrate planning for the robbery and appellant’s

participation therein, and the aftermath when Geiger returns to the apartment and

announces that the robbery failed.

       {¶18} In Exhibit 12E, appellant speaks to someone on the phone who can be

heard in the video. She says that if the caller wants somewhere safe to meet, they can

meet at a school near her residence because “there are cameras” in case anything bad

were to happen. In Exhibits 12H and 12I, Geiger, Griffith, and appellant are visible.

Appellant suggests Circle K as a location for the meeting but the parties argue. In 12K,

appellant says someone has suggested Monument Park. 12L is Griffith and Geiger

discussing the manner of the robbery and approach of the people arriving with the “weed.”

12N shows the living room of the apartment. Someone bangs on the door and appellant

runs to answer it. Outside the view of the camera, Geiger says “Justin got shot. That’s

why you hear all the sirens.” 12O shows appellant sitting down on the bed with a cigarette

as Geiger tells her the other group wanted to pat them down and he was fine with it, but

Griffith refused. 12P shows appellant tracking Griffith’s phone and realizing he is at the

hospital.
Stark County, Case No. 2018CA00166                                                       7

                         Indictment, jury trial, conviction and sentence

       {¶19} Appellant and co-defendant Geiger were each charged by indictment with

one count of complicity to involuntary manslaughter pursuant to R.C. 2923.03(A)(2)

and/or (A)(3) and R.C. 2903.04(A), a felony of the first degree [Count I], and one count of

complicity to robbery pursuant to R.C. 2923.03(A)(2) and/or (A)(3) and R.C.

2911.02(A)(1), a felony of the second degree [Count II]. Both counts were accompanied

by firearm specifications pursuant to R.C. 2941.141.

       {¶20} Appellant entered pleas of not guilty and the matter proceeded to trial by

jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close

of appellee’s evidence and renewed the motion at the close of all of the evidence; the

motions were overruled. Appellant rested without presenting evidence. Appellant was

found guilty as charged and the trial court sentenced her to an aggregate prison term of

14 years.

       {¶21} Appellant now appeals from the judgment entries of conviction and

sentence.

       {¶22} Appellant raises five assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶23} “I. THE COURT COMMITTED PLAIN ERROR IN FAILING TO DECLARE

A MISTRIAL AFTER THE CONTACT BETWEEN JUROR 19 AND APPELLANT,

DEPRIVING APPELLANT OF HER CONSTITUTIONAL RIGHT TO BE TRIED BY A

JURY.”

       {¶24} “II. THE TRIAL COURT ERRED IN FAILING TO MERGE THE ROBBERY

AND INVOLUNTARY MANSLAUGHTER COUNTS FOR THE PURPOSE OF
Stark County, Case No. 2018CA00166                                                        8


SENTENCING SUBJECTING APPELLANT TO UNCONSTITUTIONAL DOUBLE

JEOPARDY.”

       {¶25} “III. THE COURT VIOLATED APPELLANT’S FIFTH AND FOURTEENTH

AMENDMENT RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT IN

IMPOSING AN EXCESSIVE SENTENCE OF CONSECUTIVE TERMS TOTALING

FOURTEEN YEARS’ INCARCERATION.”

       {¶26} “IV.   THE COURT ERRED IN DENYING DEFENDANT’S RULE 29

MOTION FOR ACQUITTAL AS THERE WAS NO EVIDENCE PRESENTED AS TO

WHETHER THE PRINCIPAL OFFENDER ENGAGED IN ANY ACTIONS WHICH

WOULD CONSTITUTE THE OFFENSE OF ROBBERY.”

       {¶27} “V.    THE JURY FUNDAMENTALLY LOST ITS WAY AND ENTERED

VERDICTS CONTRARY TO LAW AS THE EVIDENCE AT TRIAL STRONGLY

WEIGHED AGAINST APPELLANT’S GUILT.”

                                       ANALYSIS

                                             I.

       {¶28} In her first assignment of error, appellant argues the trial court should have

declared a mistrial after she had contact with one of the jurors on the panel. We disagree.

       {¶29} After deliberations began, the courtroom bailiff advised the trial court that a

juror spoke to appellant in the jurors’ bathroom. Juror 19 was brought in to the courtroom

outside the presence of the rest of the jury, with the parties present. Juror 19 said she

was in the jurors’ bathroom when she heard someone come in; she and the other person

both left their stalls at the same time; the other person was appellant; both women washed

their hands at the same time, and as they did so Juror 19 asked appellant what she named
Stark County, Case No. 2018CA00166                                                          9


her baby. Appellant replied, “Braden, after his father,” and asked if Juror 19 would like to

see a picture of the child. Juror 19 said “Sure.” Appellant showed her a photo and said

the child “was her whole world.” Juror 19 responded that she had two children of her own

and both women walked out of the bathroom.

       {¶30} The trial court asked Juror 19 whether she was wearing her juror badge

during this conversation and she said yes. Juror 19 stated she did not tell anyone else

about the conversation, including any other juror. The trial court asked appellant why she

spoke to Juror 19 and appellant said she didn’t realize she was in the jurors’ bathroom,

nor that the woman was a juror on her case.

       {¶31} The trial court advised Juror 19 she would be removed and replaced with

an alternate juror. The parties agreed to the removal of Juror 19 and to replacement with

Juror 44. Neither party objected nor moved for a mistrial.

       {¶32} The trial court stated Juror 19 would be replaced with Juror 44 and that the

rest of the panel would be questioned whether they had contact with anyone involved in

the case. T. III, 10-11. Any such inquiry does not appear in the record, and there is no

further reference to the incident on the record.

       {¶33} In her first assignment of error, appellant argues that the trial court intimated

to the entire jury that she had improper contact with Juror 19, resulting in a quick period

of deliberation and two guilty verdicts. Appellant states, “By telling the jury that Juror 19

was being removed then questioning the remaining jurors on whether they had been

contacted by anyone involved in the case, the Court intimated to the jury that Appellant

contacted Juror 19.” Brief, 4-5. We find that this assertion, and the resulting conclusion,
Stark County, Case No. 2018CA00166                                                     10


are not supported by the record. We will not speculate by what means the trial court

explained the removal and replacement of Juror 19.

       {¶34} Appellant further argues that the trial court should have granted a mistrial,

citing R.C. 2945.33. That section states:

                    When a cause is finally submitted the jurors must be kept

             together in a convenient place under the charge of an officer until

             they agree upon a verdict, or are discharged by the court. The court,

             except in cases where the offense charged may be punishable by

             death, may permit the jurors to separate during the adjournment of

             court overnight, under proper cautions, or under supervision of an

             officer. Such officer shall not permit a communication to be made to

             them, nor make any himself except to ask if they have agreed upon

             a verdict, unless he does so by order of the court. Such officer shall

             not communicate to any person, before the verdict is delivered, any

             matter in relation to their deliberation. Upon the trial of any

             prosecution for misdemeanor, the court may permit the jury to

             separate during their deliberation, or upon adjournment of the court

             overnight.

                    * * * *.

       {¶35} The section cited by appellant does not entitled her to a mistrial solely due

to improper communication with a juror. Ordinarily, any private communication or contact

either directly or indirectly about a matter before the jury is presumptively prejudicial.

Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), syllabus. The
Stark County, Case No. 2018CA00166                                                         11

presumption is not conclusive, however. Id. It is incumbent upon the party complaining

about juror misconduct to demonstrate that the contact was prejudicial. Smith v. Phillips,

455 U.S. 209, 215–217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); see, also, State v.

Sheppard, 84 Ohio St.3d 230, 233, 703 N.E.2d 286 (1998); State v. Phillips, 74 Ohio

St.3d 72, 88, 656 N.E.2d 643 (1995). Absent prejudice, there is no violation of due

process. Smith v. Phillips, supra, 455 U.S. at 217.

       {¶36} We note appellant and her counsel were present when the trial court

discussed the replacement of Juror 19 with an alternate juror; no objection was raised

and defense trial counsel agreed to the replacement. The trial court was authorized to

replace Juror 19 with an alternate. R.C. 2945.29 states that “[i]f, before the conclusion of

the trial, a juror becomes sick, or for other reason is unable to perform his duty, the court

may order him to be discharged. In that case, if alternate jurors have been selected, one

of them shall be designated to take the place of the juror so discharged.” Likewise,

Crim.R. 24(G)(1) provides for the use of alternate jurors if regular jurors “become or are

found to be unable or disqualified to perform their duties.”

       {¶37} Whether a juror is unable to perform his duty is a determination that lies

within the trial court's discretion. State v. Reid, 2nd Dist. Montgomery No. 19352, 2003-

Ohio-4087, ¶ 14, citing State v. Kish, 9th Dist. Lorain No. 02CA008146, 2003-Ohio-2426,

¶ 6 and State v. Tate, 2nd Dist. Clark No. 2431, 1989 WL 20301 (Mar. 7, 1989). In cases

involving outside influences on jurors, the trial court is granted broad discretion in dealing

with the contact and determining whether to declare a mistrial or to replace an affected

juror. State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276, 723 N.E.2d 1054. In Johnson,

supra, 88 Ohio St.3d at 107, the Ohio Supreme Court re-examined the procedure and
Stark County, Case No. 2018CA00166                                                       12


applicable law a court must follow when an allegation is made that an improper

communication has occurred with a juror, citing its decision in State v. Phillips, 74 Ohio

St.3d 72, 88-89, 656 N.E.2d 643 (1995):

                    When     a   trial   court   learns   of   an   improper   outside

             communication with a juror, it must hold a hearing to determine

             whether the communication biased the juror. Smith v. Phillips, 455

             U.S. 209, 215–216, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Remmer

             v. United States, 347 U.S. 227, 229–230, 74 S.Ct. 450, 98 L.Ed. 654

             (1954). ‘In a criminal case, any private communication * * * with a

             juror during a trial about the matter pending before the jury is, for

             obvious reasons, deemed presumptively prejudicial * * *. [T]he

             burden rests heavily upon the Government to establish, after notice

             to and hearing of the defendant, that such contact with the juror was

             harmless to the defendant.’ Id. The Sixth Circuit, however, has held

             that the defense must prove that the juror has been biased. United

             States v. Zelinka, 862 F.2d 92, 95 (C.A.6, 1988), citing Smith v.

             Phillips, supra; contra United States v. Littlefield, 752 F.2d 1429,

             1431 (C.A.9, 1985). In cases involving outside influences on jurors,

             trial courts are granted broad discretion in dealing with the contact

             and determining whether to declare a mistrial or to replace an

             affected juror. See United States v. Daniels, 528 F.2d 705, 709–710

             (C.A.6, 1976); United States v. Williams, 822 F.2d 1174, 1189

             (C.A.D.C.1987).
Stark County, Case No. 2018CA00166                                                            13


       {¶38} In the instant case, the trial court held the requisite hearing with Juror 19

with the parties present, establishing what happened between Juror 19 and appellant.

The parties consented to the trial court’s replacement of Juror 19 and no objection was

raised. We find the trial court did not abuse its discretion in replacing Juror 19, and

appellant has not presented us with any authority contra.

       {¶39} We also note that appellant did not object to this procedure, nor did she

move for a mistrial. Appellant does not explicitly invoke the plain-error rule, but pursuant

to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” The rule places several

limitations on a reviewing court’s determination to correct an error despite the absence of

timely objection at trial: (1) “there must be an error, i.e., a deviation from a legal rule,” (2)

“the error must be plain,” that is, an error that constitutes “an ‘obvious’ defect in the trial

proceedings,” and (3) the error must have affected “substantial rights” such that “the trial

court’s error must have affected the outcome of the trial.” State v. Dunn, 5th Dist. No.

2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos. 03-AP-318, 03-

AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted). The decision to correct a plain error

is discretionary and should be made “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Barnes, supra,

quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

       {¶40} Appellee responds that the process of replacing Juror 19 with Juror 44 does

not rise to the level of plain error and we agree. In addition to appellant’s consent to the

replacement, she has not demonstrated material prejudice or that the result of the trial
Stark County, Case No. 2018CA00166                                                         14


would have been different.      In fact, as appellee points out, defense trial counsel may

have made a strategic decision to agree to the substitution of Juror 44 because that juror

was not tainted by the improper contact with appellant.

       {¶41} Even if there was an ex parte, off-the-record communication between the

trial court and the rest of the jury, which we are not willing to speculate upon, such private

communication outside the presence of the defendant does not create a conclusive

presumption of prejudice. State v. Schiebel, 55 Ohio St.3d 71, 84, 564 N.E.2d 54, 69

(1990), citing Remmer v. United States, supra, 347 U.S. at 229 and State v. Jenkins, 15

Ohio St.3d 164, 236–237, 473 N.E.2d 264 (1984).

       {¶42} We conclude the trial court did not abuse its discretion in replacing Juror 19

with Juror 44. Moreover, the process of substituting the alternate juror does not rise to

plain error. Appellant’s first assignment of error is overruled.

                                                 II.

       {¶43} In her second assignment of error, appellant argues the trial court should

have merged the counts of robbery and involuntary manslaughter for purposes of

sentencing. We disagree.

       {¶44} A defendant may be indicted upon and tried for allied offenses of similar

import, but may be sentenced on only one of the allied offenses. State v. Carr, 2016-Ohio-

9, 57 N.E.3d 262, ¶ 42 (5th Dist.), citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-

4569, 895 N.E.2d 149, ¶ 42. At sentencing, appellant argued her convictions upon one

count of complicity to involuntary manslaughter and one count of complicity to robbery,

along with the accompanying gun specifications, should merge. In response, appellee

submitted the statement of co-defendant Geiger, arguing that the robbery was motivated
Stark County, Case No. 2018CA00166                                                      15


by a separate animus than the involuntary manslaughter. The trial court agreed and found

that the offenses did not merge.

       {¶45} R.C. 2941.25 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.

                    (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.

       {¶46} The question of whether offenses merge for sentencing depends upon the

subjective facts of the case in addition to the elements of the offenses charged. State v.

Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 21. In a

plurality opinion, the Ohio Supreme Court modified the test for determining whether

offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the elements of the

offenses in question and determine whether or not it is possible to commit one offense

and commit the other with the same conduct. Id. at ¶ 48. If the answer to such question

is in the affirmative, the court must then determine whether or not the offenses were

committed by the same conduct. Id. at ¶ 49. If the answer to the above two questions is
Stark County, Case No. 2018CA00166                                                        16

yes, then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.

If, however, the court determines that commission of one offense will never result in the

commission of the other, or if there is a separate animus for each offense, then the

offenses will not merge. Id. at ¶ 51.

       {¶47} Johnson's rationale has been described by the Court as “incomplete.” State

v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Court has

further instructed us to ask three questions when a 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?

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative

answer to any of the above will permit separate convictions. Id. The conduct, the animus,

and the import must all be considered. Id.

       {¶48} Appellate review of an allied-offense question is de novo. State v. Miku,

2018-Ohio-1584, 111 N.E.3d 558, ¶ 70 (5th Dist.), citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

       {¶49} Appellant contends that the consecutive terms should have merged for

purposes of sentencing because they are allied offenses of similar import, involving the

same conduct and the same animus. R.C. 2903.04, the involuntary manslaughter statute,

provides: “No person shall cause the death of another or the unlawful termination of

another's pregnancy as a proximate result of the offender's committing or attempting to

commit a felony.” R.C. 2911.02, the robbery statute, states in pertinent part: “No person,

in attempting or committing a theft offense or in fleeing immediately after the attempt or
Stark County, Case No. 2018CA00166                                                      17


offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the

offender's control.”

       {¶50} Involuntary manslaughter and robbery are not allied offenses of similar

import. The former requires causing the death of another as a proximate result of

committing or attempting to commit a felony; robbery does not require that the victim be

killed or even injured. As appellee points out, robbery under this section is complete when

an offender attempts to commit a theft offense and has a deadly weapon on his person

or under his control. Robbery requires a theft offense or an attempt to commit one;

involuntary manslaughter does not, and robbery is only one of the many felonies that may

support a charge of involuntary manslaughter. Because each offense requires proof of

an element that the other does not, they are not allied offenses of similar import.

Therefore, reviewed in the abstract, involuntary manslaughter and robbery are not allied

offenses because the commission of one will not automatically result in commission of

the other.

       {¶51} As we will address in greater detail infra in our discussion of her fourth and

fifth assignments of error, the evidence established appellant was complicit with Griffith

and Geiger in planning to “hit a lick” on a drug dealer. On video, appellant talks to Nate

Duncan and arranges a purchase of marijuana in the amount of $2800. She admitted to

investigators that she sent Duncan a photo of cash to “prove” that Griffith had the amount

required to buy the marijuana. Griffith appears throughout the videos, carrying the

firearm, racking and loading it. The location of the “buy” is discussed and changed; the

intended location is Monument Park.
Stark County, Case No. 2018CA00166                                                        18


        {¶52} The ensuing events are related by co-defendant Geiger, also captured on

video. Geiger said one of the people in Duncan’s group wanted to pat down Geiger and

Griffith; Griffith refused and drew his firearm. The ShotSpotter records, firearms, and

shell casings established that Griffith fired two shots, followed by one shot, answered by

four shots fired by Culver. Pursuant to Ruff, we conclude that the offenses are dissimilar

in import and significance, were they committed separately, and were committed with

separate motivations. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

¶ 31.

        {¶53} The trial court did not err in refusing to merge the offenses, as they are not

allied offenses of similar import. Appellant’s second assignment of error is overruled.

                                                III.

        {¶54} In her third assignment of error, appellant argues the trial court’s

consecutive aggregate sentence of 14 years constitutes cruel and unusual punishment.

We disagree.

        {¶55} “[A]ppellate courts must adhere to the plain language of R.C.

2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,

¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and

convincing evidence that the record does not support the sentencing court's decision. Id.

at ¶ 23. Clear and convincing evidence is that “‘which will produce in the mind of the trier

of facts a firm belief or conviction as to the facts sought to be established.’” State v.

Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7, citing Marcum, supra.

Clear and convincing evidence is that measure or degree of proof which is more than a

mere “preponderance of the evidence,” but does not require the certainty of “beyond a
Stark County, Case No. 2018CA00166                                                     19

reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

       {¶56} In the instant case, appellant argues the trial court erred in imposing an

“excessive” consecutive sentence. We note appellant does not argue that the trial court

failed to make the proper findings; instead, she disagrees with the weight afforded to

those findings. “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014-Ohio-3177, syllabus.

       {¶57} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. This statute requires

the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton

Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

       {¶58} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences and

provides:

                     If multiple prison terms are imposed on an offender for

              convictions of multiple offenses, the court may require the offender

              to serve the prison terms consecutively if the court finds that the

              consecutive service is necessary to protect the public from future

              crime or to punish the offender and that consecutive sentences are
Stark County, Case No. 2018CA00166                                                        20


              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.

       {¶59} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender's conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or
Stark County, Case No. 2018CA00166                                                          21


sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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 offenses 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 would adequately reflect the

seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶ 36.

       {¶60} In this case, the record does establish that the trial court made all of the

findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.

Appellant disagrees with the import of those findings, however, claiming she is less

culpable because she was not present when the robbery and involuntary manslaughter

occurred at Monument Park; she acted under Griffith’s influence; and Culver was

engaged in criminal wrongdoing when he was shot. We do not find these arguments

compelling and note that in formulating her sentence, the trial court repeatedly referred

to appellant’s total lack of remorse and minimizing of her role in this incident that left two

dead. The evidence before us, particularly the videos of appellant nonchalantly planning,

encouraging, inciting, and fully participating in the plan to rob someone, fully supports the

trial court’s findings and refutes appellant’s claims here.

       {¶61} We also note that in the sentencing entry, the trial court found that

consecutive sentences are necessary to protect the public from future crime or to punish

the offender; are not disproportionate to appellant’s conduct and to the danger she poses

to the public; and at least two of the multiple offenses were committed as part of one or
Stark County, Case No. 2018CA00166                                                         22


more courses of conduct, and the harm caused by two or more of the offenses 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 would adequately reflect the seriousness of appellant’s

conduct.

       {¶62} Based on our review, we find that the record demonstrates that the trial

court made the seriousness findings pursuant to R.C. 2929.12(B) and (C). Here, the trial

court's sentence was within the statutory range. Moreover, the record reveals that the trial

court properly considered the statutory purposes and factors of felony sentencing, and

the decision is supported by clear and convincing evidence. Accordingly, we find that the

trial court did not err in the imposition of appellant's prison sentence, including imposition

of consecutive terms, and did not fail to consider the statutory factors.

       {¶63} Appellant’s third assignment of error is overruled.

                                               IV., V.

       {¶64} Appellant’s fourth and fifth assignments of error are related and will be

considered together. Appellant argues her convictions are not supported by sufficient

evidence and are against the manifest weight of the evidence. We disagree.

       {¶65} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to
Stark County, Case No. 2018CA00166                                                        23


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.”

       {¶66} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶67} Appellant was found guilty upon one count of complicity to commit robbery

pursuant to R.C. 2911.02(A)(1), which states: “No person, in attempting or committing a

theft offense or in fleeing immediately after the attempt or offense, shall * * * [h]ave a

deadly weapon on or about the offender's person or under the offender's control.”

Appellant was also found guilty upon one count of complicity to commit involuntary

manslaughter pursuant to R.C. 2903.04(A), which states: “No person shall cause the

death of another * * * as a proximate result of the offender's committing or attempting to

commit a felony.” The relevant portion of the complicity statute, R.C. 2923.03(A)(2) and

(A)(3), states: “No person, acting with the kind of culpability required for the commission

of an offense, shall (2) [a]id or abet another in committing the offense; [and/or] (3)
Stark County, Case No. 2018CA00166                                                       24


[c]onspire with another to commit the offense in violation of section 2923.01 of the

Revised Code.” Appellant argues there is no evidence to establish what occurred in

Monument Park, including no evidence to establish Griffith engaged in a theft offense or

attempted to commit a theft offense against Culver; consequently, there is no evidence

to establish that appellant aided, abetted, or conspired with Griffith to do so.

       {¶68} We have recognized that in order to support a conviction for complicity by

aiding or abetting under R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the principal,

and such intent may be inferred from the circumstances surrounding the crime. State v.

Umstead, 5th Dist. No. 16 CA 004, 2017-Ohio-698, 85 N.E.3d 518, ¶ 19, citing State v.

Shrider, 5th Dist. Licking No. 07 CA 111, 2008-Ohio-3648, 2008 WL 2840598, ¶ 41,

internal citation omitted. Mere approval or acquiescence, without expressed concurrence

or the doing of something to contribute to an unlawful act, is not aiding or abetting. Id.,

citing State v. Mullins, 34 Ohio App.3d 192, 200, 517 N.E.2d 945 (5th Dist.1986).

       {¶69} In the instant case, we find appellee presented sufficient evidence to

support appellant’s conviction upon complicity to commit robbery; specifically, we cite the

compelling evidence of the Ring videos. Appellant is on the videos literally supporting,

encouraging, assisting, advising, and inciting the robbery of a drug dealer, who happened

to be Nate Duncan, and the people Duncan brought with him, including Tyrell Culver.

Appellant admitted she, Griffith, and Geiger planned to rob a drug dealer for money.

Equally evident on the video is that Griffith went to the meeting with a firearm, and

appellant was fully complicit in that decision.
Stark County, Case No. 2018CA00166                                                        25


       {¶70} Appellant argues there is no evidence to establish what happened in the

park. Pursuant to R.C. 2011.02(A)(1), appellee only needed to prove that the defendant

attempted to commit a theft, having a deadly weapon under his control. We find the

record is replete with evidence that Griffith attempted to commit a theft, armed with a

deadly weapon, and that appellant was fully complicit in those actions. The record is not

devoid of evidence of what transpired in the park: the ShotSpotter tells the story of the

first volley of shots and its aftermath, leaving behind two dead as the others ran away.

Culver and Griffith fell with their firearms at their sides, Culver having fired 4 rounds and

Griffith having fired 3 rounds.    Meanwhile, Geiger pounds on the door back at the

residence, telling appellant Griffith may have been shot, and she soon realizes he is at

the hospital. Geiger tells her the Duncan group showed up and Griffith was unwilling to

be patted down, leading to the ensuing chaos of gunfire.

       {¶71} Construing all of the evidence in favor of appellee, sufficient evidence

supports appellant’s convictions. Also, this is not the case in which the jury clearly lost

its way and created such a manifest miscarriage of justice that the convictions must be

overturned and a new trial ordered. Appellant’s convictions are not against the manifest

weight of the evidence.

       {¶72} Appellant’s fourth and fifth assignments of error are overruled.
Stark County, Case No. 2018CA00166                                                  26


                                      CONCLUSION

      {¶73} Appellant’s five assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J., and

Gwin, P.J., concur.

Hoffman, J., concurring separately.
Stark County, Case No. 2018CA00166                                                        27


, concurring

       {¶74} I concur in the majority’s analysis and disposition of Appellant’s first, third,

fourth and fifth assignments of error.

       {¶75} I further concur in the majority’s disposition of Appellant’s second

assignment of error. I write separately to clarify what I believe is the proper focus when

analyzing whether offenses are allied.

       {¶76} The majority concludes involuntary manslaughter and robbery are not allied

offenses of similar import because the former requires causing the death of another as a

proximate result of committing or attempting to commit a felony; robbery does not require

the victim be killed or even injured. (Maj. Op. at ¶50). While this is true, the majority

focuses on a comparison of the elements of the two offense and not on the defendant’s

conduct.

       {¶77} The majority later reiterates because each offense required proof of an

element the other does not, they are not allied offenses of similar import, because the

commission of one will not automatically result in the commission of the other. (Maj. Op.

at ¶50). Again the majority’s focus seemingly is based upon an analysis of the elements

of the two charges rather than the defendant’s conduct.

       {¶78} I am not convinced involuntary manslaughter and robbery can never be

allied offenses. I think it is hypothetically possible to commit both robbery and involuntary

manslaughter by the same conduct.

       {¶79} For example, if a victim suffers a heart attack as a result of a defendant

brandishing a gun during a robbery, I suggest the defendant’s same conduct may result

in the commission of both offenses. See State v. Kerby, 2nd Dist. Clark No. 2013 CA 31,

2014-Ohio-3358, ¶13, (“[I]t is possible to commit involuntary manslaughter under R.C.
Stark County, Case No. 2018CA00166                                                      28


2903.04(A) and aggravated robbery under R.C. 2911.01(A)(1) with the same conduct,

thus satisfying the first prong of the Johnson test.”)

       {¶80} However, I do agree under the facts of this case the offenses were not allied.

As noted by the majority, the robbery was arguably completed when Appellant attempted

the theft offense while in possession of a gun. The robbery was motivated by a separate

animus from the involuntary manslaughter and the offenses were committed separately

under the facts of this case. And there was a separate, distinct harm (death) caused by

the gunfire from that of the robbery.

       {¶81} Accordingly, I concur in the majority’s decision to overrule Appellant’s

second assignment of error.




                                           _____________________________________
                                           HON. WILLIAM B. HOFFMAN
