[Cite as State v. Castle, 2017-Ohio-942.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT


STATE OF OHIO                                     )    CASE NO. 15 MA 0012
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )
VS.                                               )    OPINION
                                                  )
NICHOLAS CASTLE                                   )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                              Criminal Appeal from the Court of
                                                       Common Pleas of Mahoning County,
                                                       Ohio
                                                       Case No. 14 CR 550

JUDGMENT:                                              Affirmed in part. Sentence Vacated in
                                                       part. Remanded in part.

APPEARANCES:

For Plaintiff-Appellee:                                Atty. Paul J. Gains
                                                       Mahoning County Prosecutor
                                                       Atty. Ralph M. Rivera
                                                       Assistant Prosecuting Attorney
                                                       21 West Boardman Street, 6th Floor
                                                       Youngstown, Ohio 44503

For Defendant-Appellant:                               Atty. Anthony Farris
                                                       860 Boardman-Canfield Rd.
                                                       Suite 204
                                                       Youngstown, Ohio 44512


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                       Dated: March 15, 2017
[Cite as State v. Castle, 2017-Ohio-942.]
WAITE, J.


        {¶1}     Appellant Nicholas Castle appeals his December 1, 2014 conviction

and sentence on a charge of receiving stolen property. Appellant contends that the

trial court erroneously instructed the jury on receiving stolen property as it is not a

lesser-included offense of robbery. He also argues that the trial court erroneously

denied his motion for a mistrial after the prosecutor made comments about

Appellant’s silence and failure to present evidence at trial during the prosecutor’s

closing arguments. As to his sentence, he argues that the trial court failed to make

the requisite R.C. 2929.14(C) findings before imposing a consecutive sentence. The

state confesses judgment on the sentencing issue.               For the reasons provided,

Appellant’s arguments regarding his conviction are without merit and his conviction is

affirmed. As the trial court failed to consider the R.C. 2929.14(C) factors, Appellant’s

sentence is vacated in part and remanded for limited resentencing consistent with

this Court’s Opinion.

                                   Factual and Procedural History

        {¶2}     On February 2, 2012, a man called the WalGreens pharmacy in

Boardman, Ohio and informed the pharmacist that he was experiencing withdrawal

symptoms. He ordered her to gather all of the store’s Oxycontin bottles, place them

in a bag and to put the bag in the pharmacy’s drive-through drawer. He advised her

that he was in the store and had a gun. The pharmacist looked around but did not

see anyone talking on a phone or carrying a gun. Regardless, she complied with his

order and began removing bottles from the safe. While she began to collect the

bottles, her manager walked into the pharmacy area.                 The caller warned the
                                                                                   -2-

pharmacist: “[D]on’t tell the red head anything.” (11/10/14 Tr. Vol. I, p. 218.) The

manager had red hair.

      {¶3}   The pharmacist was nervous and accidentally substituted Oxycondone

for the Oxycontin requested, but gathered 10-15 bottles of the drug. The bottles

were the original manufacturer’s bottle, not the smaller pharmacy bottles typically

given to a customer. The caller told her that once she placed the bag into the

drawer, someone would give her another list of drugs to gather. She complied and

placed the bag in the drive-through drawer and turned around to wait for the caller’s

next demand. When she realized the caller was no longer on the line, she turned

and saw that the bag had been removed from the drawer, but when she visually

scanned the area no one was in sight. She explained the situation to the manager

and the police were called. Without any physical evidence to collect at the scene, the

police viewed the security camera footage and saw only shadows of the person who

removed the bag from the drawer.

      {¶4}   Around 11:00 a.m. the next day, a man who lived a few blocks from the

WalGreens called police and informed them that he found several pill bottles

scattered in his yard. Boardman police arrived and collected fourteen empty bottles

from the yard. The bottles, which were manufacturer bottles, were sent to the Ohio

Bureau of Criminal Investigations (“BCI”). Out of the fourteen bottles, two revealed a

major partial DNA profile which was entered into CODIS.          The CODIS search

revealed an apparent match with Appellant’s profile. The police located Appellant in

Columbus and obtained a warrant for his DNA. A comparison of Appellant’s DNA
                                                                                     -3-

and the DNA found on the bottles confirmed the CODIS match. On June 12, 2014,

Appellant was indicted on one count of robbery, a felony of the second degree in

violation of R.C. 2911.02(A)(2), (B).

       {¶5}   At the close of trial, the state requested a jury instruction on receiving

stolen property. The defense objected, arguing that the crime of receiving stolen

property is not a lesser-included offense of robbery. The trial court overruled the

defense’s objection and instructed the jury on receiving stolen property. The jury

found Appellant not guilty of robbery but guilty of receiving stolen property. Appellant

was sentenced to eighteen months of incarceration.         The trial court ordered the

sentence run consecutively to a four-year term Appellant was serving in Franklin

County. Appellant timely appeals his conviction and sentence.

                          ASSIGNMENT OF ERROR NO. 1

       The Trial Court committed prejudicial error when it instructed the jury to

       consider the charge of Receiving Stolen Property because it is not a

       lesser included offense of Robbery.

       {¶6}   Appellant contends that the trial court improperly instructed the jury on

receiving stolen property. Appellant argues that robbery does not contain an element

requiring that the defendant received, retained, or disposed of the property of

another.   Hence, Appellant concludes that the crime of receiving stolen property

cannot be a lesser offense of robbery. As to prejudice, Appellant states that because

he was charged with robbery but solely convicted of receiving stolen property, he is

entitled to reversal and a complete acquittal.
                                                                                    -4-

        {¶7}   In response, the state asserts that the only issue before this Court is

whether robbery, as statutorily defined, can be committed without also committing the

offense of receiving stolen property, as statutorily defined. The state explains that

receiving stolen property is statutorily defined as a theft offense that must be

committed before an offender can be convicted of robbery.             Thus, the state

concludes that robbery cannot be committed without also committing the offense of

receiving stolen property.

        {¶8}   The test of whether one offense is a lesser-included offense of another

originated in State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988). According to

Deem,

        An offense may be a lesser included offense of another if (i) the offense

        carries a lesser penalty than the other; (ii) the greater offense cannot,

        as statutorily defined, ever be committed without the lesser offense, as

        statutorily defined, also being committed; and (iii) some element of the

        greater offense is not required to prove the commission of the lesser

        offense. (Emphasis deleted.)

Id. at 209. However, Deem did not address the problem created when analyzing a

statute written in the alternative, such as robbery. Id.

        {¶9}   To address this problem, the Ohio Supreme Court modified Deem in

State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595. In Smith, the

Ohio Supreme Court applied a broad interpretation of the reasoning found in Whalen

v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980): “a criminal
                                                                                         -5-

statute written in the alternative creates a separate offense for each alternative.”

Smith, at ¶ 27, citing Pandelli v. United States, 635 F.2d 533, 537 (6th Cir.1980).

       {¶10} In expanding Deem, the Ohio Supreme Court held that “[i]n determining

whether an offense is a lesser included offense of another when a statute sets forth

mutually exclusive ways of committing the greater offense, a court is required to

apply the second part of the test established in [Deem], to each alternative method of

committing the greater offense.” Smith, at paragraph one of the syllabus.              “The

proper overall focus is on the nature and circumstances of the offenses as defined,

rather than the precise words used to define them” State v. Evans, 122 Ohio St.3d

381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 22, citing State v. Thomas, 40 Ohio St.3d

213, 216-217, 533 N.E.3d 286 (1988).

       {¶11} At the outset, we note that the cases cited by Appellant are all pre-

Smith cases, thus it is questionable whether they hold any precedential value.

Regardless, those cases address whether receiving stolen property is a lesser

included offense of aggravated robbery, which is clearly not the issue before us.

Here, we must answer the question of whether receiving stolen property is a lesser

included offense of robbery. The question, post-Smith, appears to be one of first

impression. As noted by the state, it is clear in this matter that the first and third parts

of Deem are met. Thus, the crux of this case is whether robbery, as statutorily

defined, can be committed without the crime of receiving stolen property, as

statutorily defined, also being committed.

       {¶12} The offense of robbery is found within R.C. 2911.02(A), which provides:
                                                                                    -6-

       No person, in attempting or committing a theft offense or in fleeing

       immediately after the attempt or offense, shall do any of the following:


       (1) Have a deadly weapon on or about the offender's person or under

       the offender's control;


       (2)   Inflict, attempt to inflict, or threaten to inflict physical harm on

       another;


       (3) Use or threaten the immediate use of force against another.

       {¶13} Receiving stolen property is found within R.C. 2913.51(A), which states

“[n]o person shall receive, retain, or dispose of property of another knowing or having

reasonable cause to believe that the property has been obtained through commission

of a theft offense.”

       {¶14} We begin our analysis by looking to the plain language of R.C.

2911.02(A)(2) and R.C. 2913.01(K)(1). As noted by the state, the relevant language

of R.C. 2911.02(A)(2) states that “[n]o person, in attempting or committing a theft

offense * * * shall do any of the following * * *.” (Emphasis added.) Chapter 2913 of

the revised code classifies receiving stolen property as a theft offense. As receiving

stolen property is a theft offense and it is impossible for an offender to commit a

robbery without committing a theft offense, it follows that a robbery cannot be

committed without also committing the offense of receiving stolen property. As each

part of the Deem test has been satisfied, receiving stolen property is a lesser

included offense of robbery.
                                                                                       -7-

      {¶15} Appellant’s first assignment of error is without merit and is overruled.

                             ASSIGNMENT OF ERROR NO. 2

      The    Trial   Court    committed   prejudicial   error   when   it   denied

      Defendant/Appellant's motion for mistrial because the prosecution

      violated Defendant/Appellant's rights when it commented on his silence

      and failure to present evidence.

      {¶16} As a trial court is entitled to broad discretion in considering a motion for

a mistrial, the standard of review on appeal is whether the trial court abused that

discretion. State v. Love, 7th Dist. No. 02 CA 245, 2006-Ohio-1762, ¶ 19, citing State

v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the syllabus.

The decision to grant a mistrial “is an extreme remedy only warranted in

circumstances where a fair trial is no longer possible and it is required to meet the

ends of justice.” State v. Bigsby, 7th Dist. No. 12 MA 74, 2013-Ohio-5641, ¶ 58,

citing State v. Jones, 83 Ohio App.3d 723, 615 N.E.2d 713 (2d Dist.1992). As such,

a mistrial will not be granted “merely because some error or irregularity has

intervened, unless the substantial rights of the accused or the prosecution are

adversely affected.” Bigsby at ¶ 58, citing State v. Lukens, 66 Ohio App.3d 794, 586

N.E.2d 1099 (10th Dist.1990).

      {¶17} Appellant contends that the trial court erroneously denied his motion for

a mistrial after the prosecutor repeatedly commented in closing argument on

Appellant’s silence and failure to present evidence at trial. Appellant cites to several
                                                                                  -8-

instances of such comments which he urges constitute violations of his Fifth and

Fourteenth Amendment rights.

      {¶18} In response, the state argues that the prosecutor’s comments merely

highlighted the lack of evidence presented by Appellant and his statements to police,

or lack thereof.   Even so, the state argues that Appellant’s failure to deny his

involvement in the offense occurred after he was Mirandized and the prosecutor’s

comments were permissible.

      {¶19} In the prosecutor’s closing statements, he remarked:

      Ladies and gentlemen, let’s talk about the elephant in the room. I didn’t

      do it. He didn’t do it, talking about the defendant. You never heard

      that, did you? No. You never heard that said. The defendant had the

      opportunity to do that in Columbus. He’s being accused of a robbery up

      in Boardman, Ohio.     He never said I didn’t do it.   He changed the

      subject. He never denies doing this.


      All these, as defense counsel points out, conjecture, all this stuff he

      wants you to conjecture, you have to base your decision on what you

      heard from the stand, not the fantasy stories that he wants you to

      believe. This is an inside job. Was there any evidence to that? Did

      they present any evidence? No. They just throw that out there.

(11/10/14 Tr. Trans. Vol. II., pp. 415-416.) The trial court overruled the defense’s

objection and the prosecutor stated: “When you don’t have a good defense, you just

throw in the kitchen sink. You throw a bucket full of crap, and you hope something
                                                                                    -9-

sticks.” Id. at p. 424. After a second objection by the defense was overruled, the

prosecutor continued: “You never heard that he didn’t do it. He was interviewed in

Columbus.” Id. at pp. 424-425. The defense objected a third time, prompting the trial

court to warn the prosecutor “you’re getting very close.” Id. at p. 425. Although

defense counsel objected several times to the prosecutor’s statements, no curative

instruction was requested nor given.

      {¶20} There are two separate issues within this assignment of error: whether

the prosecutor improperly commented on Appellant’s silence and whether the

prosecutor improperly commented on Appellant’s failure to present evidence.

Beginning, first, with the prosecutor’s comments regarding Appellant’s silence, the

state cites to caselaw from this Court holding that a prosecutor may comment on a

defendant’s refusal to continue speaking after he has received his Miranda warnings.

      {¶21} The analysis a court must undertake to determine whether a

prosecutor’s comments on a defendant’s silence constitute reversible error depends

on whether the defendant had received his Miranda warnings and was under arrest.

State v. Chaney, 7th Dist. No. 08 MA 171, 2010-Ohio-1312, ¶ 29-32, citing State v.

Doyle, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Leach, 102 Ohio

St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335. A prosecutor’s comments made in

closing argument regarding a defendant’s protected pre-arrest silence are improper.

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 160, citing

Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). At oral

argument in this case the state conceded that the record does not show when, or if,
                                                                                  -10-

Appellant received Miranda warnings. Thus, we must assume that he had not yet

been arrested or Mirandized when reviewing this issue and we must undertake a

Powell analysis.

       {¶22} As previously stated, a prosecutor cannot comment on a defendant’s

pre-arrest silence. See Powell, supra. We note that while “the state may use a

criminal defendant’s pre-arrest silence to impeach his credibility” State v. Bajaj, 7th

Dist. No. 13 CO 16, 2005-Ohio-2931, ¶ 98, citing Jenkins v. Anderson, 447 U.S. 231,

100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), this exception does not apply, here, as

Appellant did not testify.   Hence, the state’s comments in this matter are clearly

improper.   That said, violations of a defendant’s constitutional right against self-

incrimination are subject to a harmless error review. Powell at ¶ 162.

       {¶23} In Powell, the Ohio Supreme Court determined that improper comments

by a prosecutor amounted to harmless error. The Supreme Court reasoned that first,

the trial court immediately sustained a defense objection to the comments and

ordered the jury to disregard these comments.         Id.   Second, the prosecutor’s

comments were brief and isolated. Third, overwhelming evidence was presented to

establish the defendant’s guilt.

       {¶24} In the instant case, there were only two instances relevant to

Appellant’s argument. The trial court twice overruled defense objections aimed at the

prosecutor’s allusion to Appellant’s silence. The comments were fairly brief but not

isolated.   After objection to his first, more lengthy mention was overruled, the

prosecutor again commented, this time more briefly. This time a warning by the trial
                                                                                   -11-

court ensued. (11/10/14 Tr. Vol. II, p. 417.) While it is troubling that the trial court

failed to sustain the objections and did not instruct the jury to disregard the two

comments, in looking at the record as a whole in this case we cannot say that they

rose to the level of prejudice.      Again, these comments were fairly brief and

intertwined within the actual thrust of the prosecutor’s argument that the Appellant

provided absolutely no evidence regarding his theory that the robbery occurred as a

result of some employee of the pharmacy’s involvement. Again, while these two

statements were improper, in order to find prejudice we must find that the evidence

supporting Appellant’s conviction was lacking in some regard. This record does not

support such a contention.

      {¶25} It is unrebutted that Appellant’s DNA was found on two of the pill

bottles. There was evidence that the pill bottles were original manufacturer bottles

that are not given to the general public, and could not have been present as the

result of a filled prescription order or for some other reason unrelated to this crime.

Although this evidence does not prove that Appellant made the phone call or

removed the drugs from the drive-through drawer, and does not support the robbery

charge, the evidence more than substantiates Appellant’s conviction for receiving

stolen property. Consequently, although the prosecutor’s comments were improper,

in this case they amount to harmless error.

      {¶26} As to the prosecutor’s comments regarding Appellant’s failure to

present evidence, a prosecutor “is not prevented from commenting upon the failure of

the defense to offer evidence in support of its case.” State v. Williams, 23 Ohio St.3d
                                                                                  -12-

16, 20, 490 N.E.2d 906 (1986), citing Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct.

2954, 57 L.Ed.2d 973 (1978); State v. Lane, 49 Ohio St.2d 77, 86, 358 N.E.2d 1081

(1976), vacated on other grounds.

       {¶27} Here, the defense raised the possibility in its opening statement that the

incident was an “inside job” rather than a robbery. Throughout the trial, the defense

questioned several witnesses as to whether the incident could have been an “inside

job.” However, each of the relevant witnesses testified that it could not, and the

defense did not present any evidence to support its theory. Most of the comments to

which defense counsel objected were directed towards highlighting the absence of

such evidence. The bulk of the comments made by the prosecutor and to which

defense counsel objected pertained to this lack of evidence. As the prosecutor’s

comments addressed the failure of the defense to support its theory and did not

infringe on any of Appellant’s rights, these comments were appropriate and the trial

court did not err in failing to grant a mistrial on that basis.

       {¶28} Appellant’s second assignment of error is without merit and is

overruled.

                            ASSIGNMENT OF ERROR NO. 3

       The Trial Court erred in sentencing Defendant/Appellant to serve his

       sentence consecutive to the sentence of another court and without

       making the findings required by R.C. 2929.14 because the sentence

       was clearly and convincingly contrary to law.
                                                                                   -13-

       {¶29} Appellant contends that the trial court failed to make the requisite R.C.

2929.14(C) factors both at the sentencing hearing and within the sentencing entry.

The state confesses judgment and agrees that Appellant is entitled to a limited

remand for purposes of allowing the trial court to make the requisite findings.

       {¶30} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose

consecutive sentences on a defendant, the court must find:

       [T]hat the consecutive service is necessary to protect the public from

       future crime or to punish the offender and that consecutive sentences

       are not disproportionate to the seriousness of the offender's conduct

       and to the danger the offender poses to the public, and if the court also

       finds any of the following:


       (a) The offender committed one or more of the multiple offenses while

       the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

       Revised Code, or was under post-release control for a prior offense.


       (b) At least two of the multiple offenses were committed as part of one

       or more courses of conduct, and the harm caused by two or more of the

       multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the

       courses of conduct adequately reflects the seriousness of the offender's

       conduct.
                                                                                   -14-

      (c)   The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future

      crime by the offender.

      {¶31} A trial court judge must make the consecutive sentence findings at the

sentencing hearing and must additionally incorporate the findings into the sentencing

entry. State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797,

806, ¶ 33-34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37. The court need not state reasons to support its finding nor is it required to

use any “magic” or “talismanic” words, so long as it is apparent that the court

conducted the proper analysis. Id. citing State v. Jones, 7th Dist. No. 13 MA 101,

2014-Ohio-2248, ¶ 6; State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 28-

29.

      {¶32} A review of the sentencing hearing and sentencing entry reveals that

the trial court failed to make the requisite R.C. 2929.14(C) findings.           At the

sentencing hearing, the only R.C. 2929.14(C) factor that the trial court arguably made

is that Appellant’s criminal history demonstrates the need for a consecutive sentence.

The sentencing entry not only fails to include the requisite findings but also omits any

reference to R.C. 2929.14. As such, Appellant’s third assignment of error has merit

and is sustained.

                                      Conclusion

      {¶33} Appellant argues that the trial court improperly instructed the jury on

receiving stolen property. Pursuant to Deem and Smith, receiving stolen property is
                                                                                   -15-

a lesser-included offense of robbery and the instruction was appropriate. Appellant

next argues that the trial court erroneously denied his motion for a mistrial after the

prosecutor commented on his silence and failure to present evidence. Although two

of the comments were improper, they did not affect Appellant’s substantial rights and

amount to harmless error. Appellant’s conviction is affirmed. However, because the

record shows that the trial court failed to consider the R.C. 2929.14(C) factors when it

sentenced Appellant to consecutive prison terms, his sentence is vacated in part and

this matter is hereby remanded to the trial court for limited resentencing consistent

with this Court’s Opinion.


Donofrio, P.J., concurs.

DeGenaro, J., concurs.
