[Cite as State v. Sanders, 2019-Ohio-2566.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 106744
                 v.                                 :

NAVI SANDERS,                                       :

                 Defendant-Appellant.               :


                         JOURNAL ENTRY AND OPINION EN BANC

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-617652-B


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Katherine Mullin and Maxwell Martin,
                 Assistant Prosecuting Attorneys, for appellee.

                 Rick L. Ferrara, for appellant.


RAYMOND C. HEADEN, J.:

                   Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland

State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court

determined that a conflict existed between the original panel’s decision in this case

and this court’s prior decision in State v. Muniz, 8th Dist. Cuyahoga No. 93528,
2010-Ohio-3720, regarding what must be proven to support a conviction for

intimidation.

                In his motion for en banc consideration, the appellant also alleged

that this court’s prior decision presents a conflict with State v. McLean, 8th Dist.

Cuyahoga No. 106293, 2018-Ohio-2232, and State v. Teaque, 8th Dist. Cuyahoga

No. 106469, 2018-Ohio-3997, as to whether this court must conduct an allied-

offense analysis and recognize plain error where the sentences for the alleged allied

offenses were ordered to be served concurrently. We find no conflict here. The panel

opinion does not conflict with Teaque because that case involved the merger of allied

offenses where sentences were ordered to be served consecutively. Further, the

panel opinion does not conflict with McLean because the Ohio Supreme Court has

held that the recognition of plain error under Crim.R. 52(B) is discretionary. State

v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. Therefore, the

question presented is not a conflict of law but rather a divergence in the exercise of

judicial discretion, and we decline to accept this issue for en banc resolution.

                Having applied the law adopted by the en banc court here on the issue

of what must be proven to support an intimidation conviction, the panel opinion

released November 15, 2018, stands as the decision of the court. The text of that

opinion is appended to this en banc decision. We overrule all prior decisions of this

court inconsistent with our holding here.
               It is the opinion of the en banc court that the fact that an underlying

criminal or delinquent act occurred is not an essential element of the crime of

intimidation of a witness.

               R.C. 2921.04(B)(2) states that no person, knowingly and by force or

threat of harm, “shall attempt to influence, intimidate, or hinder * * * [a] witness to

a criminal or delinquent act by reason of the person being a witness to that act[.]”

In this context, a “witness” means “any person who has or claims to have knowledge

concerning a fact or facts concerning a criminal or delinquent act, whether or not

criminal or delinquent child charges are actually filed.” R.C. 2921.04(E).

               “The purpose of an indictment is to inform the accused of the crime

with which he is charged. The indictment, therefore, provides notice to the

defendant of the charges against him so that he may prepare a defense.” State v.

Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 11, quoting State v.

Davis, 8th Dist. Cuyahoga No. 61076, 1992 Ohio App. LEXIS 4754, 2

(Sept. 17, 1992).

               In Muniz, 8th Dist. Cuyahoga No. 93528, 2010-Ohio-3720, the

defendant was charged with intimidation of a crime victim in violation of R.C.

2921.04(B). The indictment in Muniz made no mention of the underlying offense.

Further, a review of the facts in that case shows that it was not clear that an

underlying criminal act had occurred, let alone the nature of such a criminal act.

The court in Muniz was concerned with the due process implications of the

defendant not being given adequate notice of the charges she faced. In light of this
concern, the court in Muniz found the state’s failure to give notice of the underlying

predicate acts in the indictment rendered it defective from the outset.

              Nothing in this en banc opinion shall be construed to undermine the

holding of Muniz with respect to notice requirements. We maintain that a defendant

is entitled to adequate notice of the crimes against which they must defend themself.

              A charge of intimidation does not require a conviction on the

underlying offense. Had that been the legislature’s intent, it could easily have used

the words “criminal conviction” or “delinquent adjudication” rather than “criminal

or delinquent act.” Instead, the state need only prove that the intimidation victim

had knowledge about a fact or facts concerning the underlying criminal or

delinquent act, and that the defendant knowingly and by force or threat of harm

intimidated the victim because of the victim’s knowledge of facts concerning the

matter. While a defendant must be apprised of the nature of the underlying criminal

or delinquent act, that act is not a separate element of the offense that must be

proven beyond a reasonable doubt. In holding that the occurrence of the underlying

act is an essential element of intimidation, this court imposed an unworkable

burden on the state. In making a case for intimidation, a prosecutor is not required

to establish beyond a reasonable doubt that the predicate act occurred. Such a

requirement, particularly in cases where the underlying offense may have been

committed by someone other than the defendant in the intimidation case, would

require a trial within a trial that we do not believe was intended or contemplated by

the legislature in enacting R.C. 2921.04.
              We hold that the occurrence of the underlying criminal or delinquent

act is not an essential element of the offense of intimidation that must be proven

beyond a reasonable doubt. To the extent that our decision in Muniz, 8th Dist.

Cuyahoga No. 93528, 2010-Ohio-3720, is inconsistent with this holding, it is

overruled.



RAYMOND C. HEADEN, JUDGE

MARY EILEEN KILBANE, A.J., PATRICIA ANN BLACKMON, MARY J. BOYLE,
FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T.
GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN ANN
KEOUGH, ANITA LASTER MAYS, and MICHELLE J. SHEEHAN, JJ., CONCUR
                                     Appendix

State v. Sanders, 8th Dist. Cuyahoga No. 106744, 2018-Ohio-4603 (panel decision
journalized November 15, 2018):

MELODY J. STEWART, J.:

              A jury found defendant-appellant Navi Sanders guilty of felonious

assault, discharging a firearm near a prohibited premises, improper handling of a

firearm in a motor vehicle, and intimidation of a crime witness. The charges

stemmed from the death of a 14-year-old child who was stabbed while sleeping in

the same house where Sanders and her boyfriend, Jacque Renode, were staying.

Just days after the stabbing, Sanders and Renode were seen in the back seat of a car

moving down the same street where the stabbing occurred. Renode fired several

shots from the car in the direction of a teenage victim, who had been present in the

house where the stabbing occurred, and later heard Sanders and Renode make

incriminating statements about the stabbing. The state theorized that Renode

murdered the child, and that Sanders was complicit in intimidating the victim from

assisting the police investigation. Sanders raises a number of assignments of error

relating to evidence supporting the firearm specifications, the weight of evidence,

the jury instructions on intimidation, prosecutorial misconduct, the assistance of

trial counsel, and whether certain sentences should have merged.

I. Intimidation of a Witness

              The intimidation count charged Sanders with intimidating a witness

to a murder. Sanders maintains that the state did not prove that the child’s death
was the result of murder, nor did it prove who committed the murder. She argues

that because Renode had been charged with the child’s murder, but had yet to be

tried, the court allowed the jury to assume that Renode murdered the child. She

maintains that this assumption was a failure of proof on the intimidation count and

otherwise tainted her ability to receive a fair trial.

A. Sufficiency of the Evidence

               Count 5 of the indictment charged Sanders with intimidation in

violation of R.C. 2921.04(B)(2). That section states that no person, knowingly and

by force or threat of harm, “shall attempt to influence, intimidate, or hinder * * * [a]

witness to a criminal or delinquent act by reason of the person being a witness to

that act[.]” In this context, a “witness” means “any person who has or claims to have

knowledge concerning a fact or facts concerning a criminal or delinquent act,

whether or not criminal or delinquent child charges are actually filed.”

R.C. 2921.04(E).

               The intimidation charge did not require the state to prove beyond a

reasonable doubt that a murder occurred, much less who committed the murder.

Had that been the legislature’s intent, it could easily have used the words “criminal

conviction” or “delinquent adjudication” rather than “criminal or delinquent act.”

The state only had to prove that the victim had knowledge about a fact or facts

concerning the child’s death and that Sanders knowingly and by force or threat of

harm intimidated the victim because of the victim’s knowledge of facts concerning

the matter. As charged in the indictment, the to-wit clause referencing murder
applied merely to describe the circumstances of the criminal act; the precise nature

of the criminal act was not a separate element of proof for the offense of

intimidation.

                The evidence showed that the victim of the intimidation count, who

was 13 years of age at the time, slept at the house where the stabbing occurred. He

testified that after family members found the child, he personally saw the child on a

bedroom floor, wrapped in a quilt and bleeding (the child had been stabbed in the

neck). The child’s mother told the victim to go to a local grocery store and locate her

fiancé. The victim found the fiancé with Sanders and Renode. After the victim said

that the child “was bleeding” and might be dead, the fiancé and Renode started

running to the house, but Sanders only walked, telling the victim that the child was

“not dead, he’s okay.” When they returned to the house, Renode went to the

bedroom, but Sanders remained outside. The child testified that Renode then came

out of the bedroom “really quick and said I have to get out of here * * *.”

                Trial testimony established that Sanders and Renode had previously

stayed at the mother’s house, but were told to move out after “a bunch of

altercations” with her children. As she was moving out, Sanders told the mother

that “I’ll be back and I’m going to kill you and your kids.” Sanders and Renode

returned to the house a few weeks later, claiming that they were homeless and

needed a place to stay. The mother took them in as an act of charity. Two days later,

the mother became upset after discovering that Renode had given an alcoholic drink

to the child. After sending the child to bed, the mother, her fiancé, Sanders, and
Renode watched a movie. The mother checked on the child and found him sleeping

on the floor, so she told Sanders and Renode that they could sleep in the child’s bed.

When the mother checked on the child two hours later, she found the child wrapped

in a quilt and bleeding from a stab wound to the neck. Sanders and Renode were no

longer in the house. The day after the child’s death, the mother’s fiancé found a pair

of blood-soaked pants belonging to Renode in a clothes pile in one of the bedrooms.

               The child’s mother testified that in the days following the stabbing,

Renode’s name was mentioned most frequently in speculation about who killed her

son, given that bloody pants belonging to Renode were found in the house. Four

days after the stabbing, the victim and his girlfriend were walking down the street

where the stabbing occurred. They saw a car driving slowly down the street, with

Renode and Sanders in the back seat. Renode, sitting behind the driver, extended a

gun out the car window and fired about six times. Two bullets struck a vehicle next

to where the victim was standing. The car then sped away.

               The state offered no expert testimony on the cause of the child’s

death, nor did it offer any evidence in the form of police testimony regarding an

investigation into the child’s death. Nevertheless, the jury could reasonably infer

that the child, having been stabbed in the neck and wrapped in a quilt, died as result

of foul play that rose to the level of a criminal act. Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (it is “the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts”).
               Evidence that Renode and Sanders may have been involved in the

child’s death provided a motive for intimidation. The victim testified that Renode

and Sanders both made incriminating statements on the night of the child’s death.

And the discovery of Renode’s bloody pants appeared to tie him to the death. These

background facts put into perspective the victim’s testimony that the car in which

Sanders and Renode were traveling slowly down the street slowed down and that

Renode fired multiple shots at him. A rational trier of fact could have found the

shooting to be an act to intimidate the victim from testifying in a future criminal

proceeding related to the child’s death. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. The facts support that the shots were

intended to injure the victim and/or intimidate him. There is no evidence of any

other plausible explanation for the shooting.

               In addition to the direct evidence of intimidation, the jury could

rationally find that Sanders fled the jurisdiction with Renode, an act that showed a

consciousness of guilt. State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897 (1969),

paragraph six of the syllabus (“Flight from justice * * * may be indicative of a

consciousness of guilt.”). Testimony showed that warrants were issued for the arrest

of Sanders and Renode just days after the shooting. It is unclear when the two left

Ohio, but Renode was forcibly apprehended six months later in Indiana.

               Although there was no evidence that Sanders fired the shots at the

victim, a rational trier of fact could find Sanders complicit in intimidating the victim;

that is, that she acted with the kind of culpability required for the commission of the
offense and she aided and abetted Renode. See R.C. 2923.03(A). Aiding and

abetting can be inferred by presence, companionship, and conduct before and after

the offense is committed. State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796

(2001). Evidence that Sanders and Renode were together on the night the child

died, along with incriminating statements both she and Renode later made, shows

that Sanders would have benefitted just as much as Renode by intimidating the

victim. This self-interest and companionship was sufficient evidence from which

the jury could infer that Sanders was complicit in committing intimidation.

              For the same reasons, we reject Sanders’s argument that the state

failed to offer evidence sufficient to prove the firearm specifications attached to

Counts 2 through 4 of the indictment. Those counts — felonious assault, discharge

of a firearm near prohibited premises, and improper handling of a firearm in an

automobile — were related to the intimidation count in that they pertained to

conduct that occurred inside the car at the same time as the intimidation count

(which did not contain a firearm specification). The culpability that Sanders had in

intimidating the victim was applicable to the firearm specifications.        State v.

Chapman, 21 Ohio St.3d 41, 42-43, 487 N.E.2d 566 (1986); State v. Rucker, 8th

Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 43. The only remaining question is

whether a rational trier of fact could find that Renode fired shots from the car, thus

establishing the operability of the handgun. See State v. Murphy, 49 Ohio St.3d

206, 206, 551 N.E.2d 932 (1990), syllabus. The victim gave testimony which, when

viewed most favorably to the state, established that Renode fired the gun from the
moving car.       The jury could rationally find Sanders was subject to a firearm

specification because she aided and abetted Renode.

B. Unfair Trial

              Sanders next makes a broader argument that the court should have

granted a mistrial because of repeated statements by the mother, and assertions by

the state that Renode murdered the child.

              Our discussion of Sanders’s argument relating to the sufficiency of the

evidence informs the present argument — because the state had to prove that the

victim had been a “witness” to a criminal act (that is, the child had knowledge

concerning a fact or facts concerning a criminal act), it necessarily had to provide

context for Sanders’s belief that the victim had been a witness to a criminal act. See

State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 216. The

mother thus gave relevant testimony about the circumstances of her child’s death.

              It is true that the state told the jury in its opening statement that the

child “was murdered in his bedroom, his throat was slashed, by Jacque Renode, by

Navi Sanders’[s] boyfriend,” but this was irrelevant.       This statement was not

evidence — nothing said in an opening statement is considered evidence. State v.

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 48. What mattered

was that the state prove that Sanders was complicit in intimidating a witness who

had knowledge concerning a fact or facts about a criminal act. The jury could have

drawn different conclusions on whether the child died as result of murder or some
other criminal homicide.      We thus conclude that the court did not abuse its

discretion by denying Sanders’s motion for a mistrial.

C. Jury Instructions

               Although defense counsel stated that he had no objection to the jury

instructions, Sanders now claims plain error because the instructions for the offense

of intimidation did not require the jury to find beyond a reasonable doubt that the

child had been murdered. Sanders also complains that the jury instruction failed to

list any of the required elements of murder.

               We summarily reject the argument that the jury instructions were

erroneous based on our discussion in Part I(A) of this opinion. The state did not

have to prove beyond a reasonable doubt that a murder occurred; it only had to

prove that Sanders subjectively believed that the victim had knowledge concerning

the stabbing and that Sanders was complicit with Renode in firing shots at the victim

in order to intimidate him.

               Because the jury instructions were not plainly erroneous, defense

counsel’s failure to object to them did not deprive Sanders of her constitutional right

to the effective assistance of counsel.        State v. Delawder, 4th Dist. Scioto

No. 10CA3344, 2012-Ohio-1923, ¶ 4 (“counsel had no duty to object to an

appropriate instruction”).

II. Manifest Weight

               Sanders asks us to independently weigh the evidence and conclude

that testimony by the child’s mother was completely fabricated because she testified,
in seeming contradiction to the victim, that the victim claimed to have seen Sanders

and Renode in the car, with a gun in Renode’s hand, claiming that he would “come

back and kill you and your family, your mother, as well as [the child’s] * * * family.”

               Although the victim testified and denied hearing any voices coming

from the car, that contradiction did not call the verdict into question. The victim

plainly identified both Sanders and Renode, an identification that was credible

because of his familiarity with them and interaction with them on the night the child

died. This familiarity mitigated concerns about any inconsistencies in portions of

the witnesses’ testimony.

               In addition to the strength of the victim’s identification, other

evidence made for a strong circumstantial case against Sanders. Renode and

Sanders left the house at some point before the mother discovered that her son had

been stabbed. When the victim later found Sanders and Renode and told them that

the child was bleeding, Sanders replied that the child was not dead and that he would

be “okay.” The jury could have viewed the affirmative nature of that statement as

indicating that Sanders had some prior knowledge of what transpired with the child.

Renode’s rapid departure after seeing the child’s condition (“I have to get out of

here”) suggested a consciousness of guilt. By returning to the area where the

stabbing occurred and shooting at the victim who had knowledge of statements

made by both Sanders and Renode in connection with the stabbing, the act of firing

shots at the victim could be viewed as an attempt to intimidate him into silence.

Even more indicative of a consciousness of guilt was evidence that Sanders and
Renode left the state as warrants were issued for their arrest in the course of the

investigation into the child’s death. They were arrested six months later, under

circumstances in which Renode had to be apprehended with the use of force.

               There were, as in many criminal cases, inconsistencies in how

witnesses testified. It was for the jury to “believe or disbelieve any witness or accept

part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67,

197 N.E.2d 548 (1964). This is not the exceptional case where the evidence weighs

heavily against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997).

III. Prosecutorial Misconduct

               Sanders complains that the state engaged in misconduct by referring

to the child’s death as a “murder” without actually proving that the child died as a

result of a homicide. She also complains that the state improperly referenced facts

not in evidence and vouched for the credibility of its witnesses.

               For reasons previously stated, we reject Sanders’s argument that the

state improperly referred to the child’s death as the result of a “murder” while

examining witnesses. In any event, referring to the child’s death as a “murder” was

acceptable as a euphemism for “foul play” in this particular case and a fair

characterization of the evidence based on unrebutted testimony that the child died

after being stabbed in the neck while seemingly asleep. There was no rational basis

to believe that the child died as a result of any accident, particularly when he had

been wrapped in a quilt, possibly to hide his injuries.
               Sanders’s next argument references testimony by the victim’s

girlfriend that she saw a text message from the mother’s fiancé stating that “I know

what happened that night.” This text message came to light during trial, and, after

the girlfriend had testified for the state, Sanders recalled the girlfriend as a witness.

During Sanders’s closing argument, defense counsel referenced the girlfriend’s

testimony and questioned why she had not been contacted by police detectives until

the eve of trial. In response to defense counsel’s assertion that the police did not

contact the girlfriend, the assistant prosecuting attorney stated: “So [defense

counsel] says that [the girlfriend] wasn’t contacted. I think you’ll remember the

testimony was that her mother did not want her to be a part of this. But we did find

her in time for trial. Again he wants you to trust her but ignore her honest and deep-

held belief that defendant was in that car.” Defense counsel objected, and the court

sustained the objection. Sanders now argues that the state improperly vouched for

the truthfulness of its own witness.

               “It is improper for an attorney to express his or her personal belief or

opinion as to the credibility of a witness or as to the guilt of the accused.” State v.

Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997).             By charactering the

girlfriend’s belief that Sanders was in the car as “honest,” the state arguably

expressed an opinion on her credibility. Nevertheless, the court sustained Sanders’s

objection and later instructed the jury that closing arguments were not evidence and

that the jury should not speculate on why the court sustained any objection. This
limited the potential for prejudice from any misconduct. State v. Dean, 146 Ohio

St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 250, 253.

               In a different part of its closing argument, the state noted that

Sanders’s attempt to intimidate the witnesses did not stop those witnesses from

coming to court and “telling you the truth.” Sanders did not object to this statement,

so she forfeited all but plain error. Dean at ¶ 237. Unlike the state’s statement that

the girlfriend was “honest,” the statement that the witnesses came to court for the

purpose of “telling you the truth” did not vouch for the credibility of any specific

statement. There is enough difference in the semantic content of the statement that

it did not vouch for the witness’s credibility and rise to the level of plain error.

IV. Allied Offenses

               For her final assignment of error, Sanders maintains that the

sentences for felonious assault, improper handling of a firearm in a motor vehicle,

and discharge of a firearm near a prohibited premises should have merged because

they all occurred simultaneously.

               During sentencing, the court referenced all of the counts on which the

jury returned a guilty verdict and stated, “[i]t’s my understanding that none of those

counts would merge for purposes of sentencing; is that correct?” The state replied,

“yes”; defense counsel said nothing. By failing to object, Sanders forfeited all but

plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

¶ 21.
              Even if some plain error in failing to merge the sentences occurred,

an appellate court is not obligated to reverse. The application of the plain error

doctrine should only be applied “‘under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” Id. at ¶ 23, quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The court

imposed a total 15-year sentence on the felonious assault count, including

mandatory consecutive time for three- and five-year firearm specifications. The

sentences for the remaining counts were ordered to be served concurrently. The

order of concurrent service means that recognition of plain error would not affect

the length of Sanders’s sentence. No manifest miscarriage of justice would occur if

the counts were not merged.

              Judgment affirmed.
