[Cite as State v. Sanders, 2018-Ohio-4603.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106744




                                              STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                              NAVI L. SANDERS

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



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

        BEFORE: Stewart, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: November 15, 2018
ATTORNEYS FOR APPELLANT

Rick L. Ferrara
Rick L. Ferrara, Esq.
2077 East 4th Street, Second Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Maxwell Martin
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1}    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

       {¶2} 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

       {¶3} 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).

       {¶4} 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.

       {¶5} 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 * * *.”

       {¶6} 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.

       {¶7} 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.

       {¶8} 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”).

       {¶9} 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.

       {¶10} 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.

       {¶11} 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.

       {¶12} 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

       {¶13} 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.

       {¶14} 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.
       {¶15} 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

       {¶16} 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.

       {¶17} 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.

       {¶18} 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

       {¶19} 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.”

       {¶20} 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.

       {¶21} 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.

        {¶22} 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

        {¶23} 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.

        {¶24} 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.

        {¶25} 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.

        {¶26} “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.

        {¶27} 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

        {¶28} 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.

        {¶29} 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.

        {¶30} 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.

        {¶31} Judgment affirmed.

        It is ordered that appellee recover of appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
