[Cite as State v. Geiger, 2019-Ohio-4338.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
RYAN CORDALE GEIGER                          :       Case No. 2018CA00173
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2018CR0353(A)



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 21, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      BERNARD L. HUNT
PROSECUTING ATTORNEY                                 2395 McGinty Road NW
STARK COUNTY, OHIO                                   North Canton, OH 44720

By: KATHLEEN O. TATARSKY
    110 Central Plaza, South – Suite 510
    Canton, OH 44702
Stark County, Case No. 2018CA00173                                                              2




Wise, Earle, J.

       {¶ 1} Defendant-Appellant Ryan Cordale Geiger appeals the September 13,

2018 judgment of conviction and sentence of the Court of Common Pleas of Stark County,

Ohio. Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} The City of Canton employs a system called “ShotSpotter.” ShotSpotter

utilizes microphones located throughout the city to detect loud noises such as gunfire. On

January 11, 2018, Canton City Police Officer John Eckelberry was working the afternoon

shift and was assigned to respond to any ShotSpotter calls.

       {¶ 3} At 9:37 pm, a ShotSpotter microphone at Monument Park reported a total

of seven shots fired, the first two fired five seconds before the last five. The system

indicated the shots were fired from two different weapons. Eckleberry and his partner

Officer Kyle Slone responded to Monument Park where they discovered a white male,

later identified as Justin Griffith, lying just off the road. Griffith was gasping for air and had

a through and through gunshot wound to his side. Eckleberry rolled Griffith over to render

aid and discovered a loaded Smith and Wesson nine millimeter firearm in Griffith’s left

hand. Eckleberry seized the weapon, rendered it safe and placed it in his cruiser.

       {¶ 4} Additional officers arrived on the scene to assist. Near the towpath trail in

the park, Officer Timothy Marks located a deceased black male later identified as Tyrell

Culver. Culver had also been shot. A Century Arms nine millimeter weapon was found in

his hand.

       {¶ 5} No drugs or money were found on either body.
Stark County, Case No. 2018CA00173                                                        3


        {¶ 6} Griffith was transported to Aultman Hospital where he was pronounced

dead.

        {¶ 7} Canton Police Detective Jeff Weller responded to the scene to investigate

the deaths. No shell casings were discovered near Griffith, however, seven shell casings

were discovered by Culver's body. Four were fired from the Century Arms weapon found

in Culver's hand, and three were fired from the Smith and Wesson found in Griffith's hand.

The weapons were later tested and confirmed operable.

        {¶ 8} Detectives obtained a warrant to view content on a cell phone found on

Griffith's body. The phone contained several Ring security camera videos that went to

Griffith’s phone from inside his apartment. Video was sent to the phone both before and

after the shootings. The videos showed Geiger, Griffith, and Griffith's girlfriend Alyssa

Westfall inside the apartment. Westfall was on the phone setting up a drug deal with

Nathan Duncan to purchase a pound of marijuana for $3000. None of the three had

$3000. Instead, the plan was for Griffith and Geiger to rob Turner of the marijuana and

resell it. Griffith was to pull the gun on Duncan and Geiger was to be the lookout. Griffith

is shown getting dressed, loading a firearm and walking around the apartment with the

firearm in his hand. At the end of the video, Geiger declares they are ready.

        {¶ 9} Additional video following the failed robbery attempt shows Geiger's return

to the apartment and his explanation to Westfall. He told Westfall the robbery failed

because when Duncan arrived with two other people, they wanted to pat Geiger and

Griffith down for weapons. Geiger consented, but Griffith refused. Then both Culver and

Griffith pulled out firearms. Geiger told Westfall he ran and did not know what happened
Stark County, Case No. 2018CA00173                                                         4


to Griffith. Westfall used an app on her iPhone to locate Griffith's phone. The app indicated

the phone was at Aultman Hospital. Geiger and Westfall then left for Aultman Hospital.

        {¶ 10} Further investigation revealed five individuals were present at Monument

Park: Geiger and Griffith, who were attempting to rob Nathan Duncan, Joshua Carpenter,

and Tyrell Culver of the marijuana they had intended to sell.

        {¶ 11} Detectives located Geiger and interviewed him at the police station on

January 12, 2018. After receiving his Miranda warnings and waiving the same, Geiger

told detectives of planning for the robbery, and described what happened at Monument

Park. He indicated Culver pulled out a firearm first, but he was unsure who had fired the

first shot.

        {¶ 12} On March 6, 2018, the Stark County Grand Jury returned an indictment

charging Geiger with one count of complicity to commit involuntary manslaughter, a felony

of the first degree, and one count of complicity to commit robbery, a felony of the second

degree. Each count contained a firearm specification. Westfall was identically indicted.

        {¶ 13} Geiger pled not guilty to the charges. On April 13, 2018, Geiger filed a

motion to dismiss the indictment alleging selective prosecution. On August 21, 2018, the

trial court denied the motion.

        {¶ 14} Geiger’s jury trial began on August 28, 2018. The parties entered into two

stipulations. First the parties agreed that based upon Culver's autopsy, his gunshot wound

was not self-inflicted, but rather Culver's death was a homicide. Second, the parties

agreed that both Nathan Duncan and Joshua Carpenter were present a Monument Park

on January 11, 2018 and that Duncan was the individual coordinating with Westfall.
Stark County, Case No. 2018CA00173                                                            5


         {¶ 15} After hearing all the evidence and deliberating, the jury found Geiger guilty

as charged. The trial court found the charges were not allied offenses. Geiger was

subsequently sentenced to nine years for complicity to involuntary manslaughter and four

years for complicity to robbery. The trial court found the firearm specifications did merge

and imposed an additional year for the specification. Geiger's total sentence was 14

years.

         {¶ 16} Appellant filed an appeal and the matter is now before this court for

consideration. He raises three assignments of error as follow:

                                                I

         {¶ 17} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT

FAILED TO MERGE THE MULTIPLE COUNTS OF ROBBERY AND INVOLUNTARY

MANSLAUGHTER AS ALLIED OFFENSES OF SIMILAR IMPORT, IN VIOLATION OF

O.R.C. 2941.25(A)."

                                                II

         {¶ 18} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

TO DISMISS."

                                               III

         {¶ 19} "THE APPELLANT WAS DENIED HIS AFFECTIVE ASSISTANCE OF

COUNSEL."

                                                I

         {¶ 20} In his first assignment of error, Geiger argues the trial court erred in failing

to merge the charges of complicity to robbery and complicity to involuntary manslaughter

as allied offenses of similar import. We disagree.
Stark County, Case No. 2018CA00173                                                      6


      {¶ 21} R.C. 2941.25 governs multiple counts and states the following:



             (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.



      {¶ 22} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:



             1. In determining whether offenses are allied offenses of similar

             import within the meaning of R.C. 2941.25, courts must evaluate

             three separate factors—the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

             of R.C. 2941.25(B) when the defendant's conduct constitutes

             offenses involving separate victims or if the harm that results from

             each offense is separate and identifiable.
Stark County, Case No. 2018CA00173                                                     7


           3. Under R.C. 2941.25(B), a defendant whose conduct supports

           multiple offenses may be convicted of all the offenses if any one of

           the following is true: (1) the conduct constitutes offenses of dissimilar

           import, (2) the conduct shows that the offenses were committed

           separately, or (3) the conduct shows that the offenses were

           committed with separate animus.



     {¶ 23} The Ruff court explained at paragraph 26:



           At its heart, the allied-offense analysis is dependent upon the facts

           of a case because R.C. 2941.25 focuses on the defendant's conduct.

           The evidence at trial or during a plea or sentencing hearing will reveal

           whether the offenses have similar import.         When a defendant's

           conduct victimizes more than one person, the harm for each person

           is separate and distinct, and therefore, the defendant can be

           convicted of multiple counts.      Also, a defendant's conduct that

           constitutes two or more offenses against a single victim can support

           multiple convictions if the harm that results from each offense is

           separate and identifiable from the harm of the other offense. We

           therefore hold that two or more offenses of dissimilar import exist

           within the meaning of R.C. 2941.25(B) when the defendant's conduct

           constitutes offenses involving separate victims or if the harm that

           results from each offense is separate and identifiable.
Stark County, Case No. 2018CA00173                                                     8




      {¶ 24} In co-defendant Westfall's appeal, we found Westfall's identical

convictions did not merge. We explained:



             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 offense, shall * * * [h]ave a deadly weapon on or about the

             offender's person or under the offender's control.”



             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.
Stark County, Case No. 2018CA00173                                                    9




           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.



           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.



           The ensuing events are related by co-defendant Geiger, also

           captured on video. Geiger said one of the people in Duncan’s group
Stark County, Case No. 2018CA00173                                                    10


              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.



       {¶ 25} State v. Westfall, 5th Dist. Stark No. 2018CA00166, 2019-Ohio-4039

¶ 49-52.

       {¶ 26} We find here as we did in Westfall. The trial court did not err in

refusing to merge the offenses as they are not allied offenses of similar import.

Geiger's first assignment of error is overruled.

                                             II

       {¶ 27} Geiger next argues the trial court erred when it refused to dismiss the

indictment based on selective prosecution. We disagree.

       {¶ 28} Geiger argues selective prosecution based on the fact that Nathan Duncan

and Joshua Carpenter were not charged in this matter. In State v. Flynt, 63 Ohio St.2d

132, 407 N.E.2d 15 (1980), the Ohio Supreme Court addressed the elements Geiger must

meet to establish his selective-prosecution claim:
Stark County, Case No. 2018CA00173                                                      11


             To support a defense of selective or discriminatory prosecution, a

             defendant bears the heavy burden of establishing, at least prima

             facie, (1) that, while others similarly situated have not generally been

             proceeded against because of conduct of the type forming the basis

             of the charge against him, he has been singled out for prosecution

             and (2) that the government's discriminatory selection of him for

             prosecution, has been invidious or in bad faith, i.e., based upon such

             impermissible considerations as race, religion, or the desire to

             prevent his exercise of constitutional rights. These two essential

             elements are sometimes referred to as intentional and purposeful

             discrimination.



      {¶ 29} Id., at 134 quoting United States v. Berrios 501 F.2d 1207, 1211,

(C.A.2, 1974).

      {¶ 30} Additionally, a mere showing another person similarly situated was not

prosecuted is not enough. A defendant must demonstrate actual discrimination due to

invidious motives or bad faith. State v. Freemman, 20 Ohio St.3d 55, 58, 485 N.E.2d 1043

(1985). The prosecutor enjoys a presumption his or her actions were non-discriminatory

in nature. State v. Keen, 81 Ohio St.3d 646, 653, 693 N.E.2d 246 (1998).

      {¶ 31} As noted by appellee, although Duncan and Carpenter were present at

Monument Park on the day in question, there is no evidence in the record to support a

conclusion that they committed or were complicit to a robbery which led to involuntary

manslaughter. Moreover, Westfall was indicted for the same crimes as Geiger. Geiger is
Stark County, Case No. 2018CA00173                                                         12

unable, therefore to meet either of the two prongs set forth in Flynt to establish selective

prosecution.

       {¶ 32} The second assignment of error is overruled.

                                              III

       {¶ 33} In his final assignment of error, Geiger argues he was denied effective

assistance of counsel. We disagree.

       {¶ 34} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:



               2. Counsel's performance will not be deemed ineffective unless and

               until counsel's performance is proved to have fallen below an

               objective standard of reasonable representation and, in addition,

               prejudice arises from counsel's performance. (State v. Lytle [1976],

               48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.

               Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

               followed.)

               3. To show that a defendant has been prejudiced by counsel's

               deficient performance, the defendant must prove that there exists a

               reasonable probability that, were it not for counsel's errors, the result

               of the trial would have been different.
Stark County, Case No. 2018CA00173                                                        13


       {¶ 35} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State v.

Post, 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987).

       {¶ 36} Geiger makes several arguments under this assignment of error. He first

argues he was denied effective assistance of counsel during voir dire, accusing his

counsel of using incorrect legal definitions and drawing an objection for the same from

counsel for the state. Geiger does not explain how these alleged instances prejudiced the

outcome of his trial. Additionally, our review of the record reveals counsel did not use

incorrect legal definitions. Rather, the trial court asked that counsel refrain from getting

into legal definitions as the jury would be receiving instructions from the court. T. 103. We

therefore find no merit to Geiger’s claim.

       {¶ 37} Geiger next faults trial counsel for failing to object to the prosecutor’s

“obsessive comments and referral to a victim’s bloody shirt and bullet holes” which

caused the trial court to chastise the state for possible prejudice to appellant. Our

examination of appellant’s transcript reference leads us to the prosecutor’s identification

of a victim’s clothing and two photographs identifying a victim’s wounds during direct

examination of the investigating detective. T. 225-227. We find nothing improper about

the prosecutor’s conduct and thus no cause for appellant’s counsel to object. We further

note that the trial court merely asked the prosecutor how many photos of the victim’s

wounds he intended to show the jury and cautioned against publishing more than had

already been shown and risking prejudice to Geiger. T 227. We therefore reject this

argument.
Stark County, Case No. 2018CA00173                                                        14


       {¶ 38} Next Geiger argues trial counsel failed to adequately prepare. Specifically

he accuses counsel of failing to review the transcript his interview with law enforcement.

That allegation, however, is not borne out by the transcript. Nothing in the record indicates

counsel failed to review the transcript. Rather, counsel requested that portions of the

interview be redacted during direct exam of the detective that conducted the interview. T.

251-254. Outside the presence of the jury, the trial court expressed it exasperation with

counsel for counsel's failure to indicate he desired portions redacted before trial began,

not for failing to review the transcript all together as suggested by Geiger. Because the

record does not support appellant’s argument, we reject the same.

       {¶ 39} Appellant next faults trial counsel for failing to secure the appearance of two

witnesses at trial – Nathan Duncan and Joshua Carpenter. Appellant does not direct us

to any portion of the record to support this argument. However, even if this alleged failure

could be construed as being below an objective standard of reasonable representation,

appellant does not explain what the testimony of these witnesses would have been, nor

how it would have changed the outcome of his trial. Moreover, as the state points out, at

trial, counsel for appellant indicated he subpoenaed Duncan and Carpenter simply to

testify they were present at Monument Park on the day in question. T.II 59. At trial the

parties stipulated to that fact. T.II 62-64. We therefore reject appellant’s argument.

       {¶ 40} Finally, appellant argues counsel rendered ineffective assistance during

sentencing by failing to “mitigate investigation into appellant’s history to his prejudice.”

Appellant does not elaborate on this statement or provide a transcript reference to explain

what history he is referring to. We therefore reject his argument.

       {¶ 41} The final assignment of error is overruled.
Stark County, Case No. 2018CA00173                                                 15


      {¶ 42} The judgment of the Court of Common Pleas, Stark County Ohio is affirmed.



By Wise, Earle, J. and

Baldwin, J. concurs.

Hoffman, P.J. concurs separately.




EEW/rw
Stark County, Case No. 2018CA00173                                                        16

Hoffman, P.J., concurring
       {¶43} I concur in the majority’s analysis and disposition of Appellant’s second and

third assignments of error.

       {¶44} I further concur in the majority’s disposition of Appellant’s first assignment

of error, but do so under a different analysis as set forth in my concurring opinion in State

v. Westfall, 5th Dist. Stark No. 2018CA00166, 2019-Ohio-4039.
