[Cite as State v. Fair, 2011-Ohio-3330.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24120
v. : T.C. NO. 08CR4546
MARK A. FAIR : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 1st day of July , 2011.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LYNNE M. FLEMING, Atty. Reg. No. 0078520, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Mark A. Fair was convicted after a jury trial in the Montgomery County
Court of Common Pleas of complicity to commit burglary, receiving stolen property, and
assault on a peace officer. The trial court sentenced him to an aggregate term of six years in 2
prison.
{¶ 2} Fair appeals from his conviction and sentence, claiming that his counsel
rendered ineffective assistance, that the trial court erred in overruling his Crim.R. 29 motion,
that the trial court erred in precluding defense counsel from discussing a lesser related
offense during closing argument, and that his convictions for complicity to commit burglary
and receiving stolen property should have been merged. For the following reasons, the trial
court’s judgment will be affirmed in part and reversed in part, and the matter will be
remanded for resentencing.
I
{¶ 3} Michael1 and Jane Maney reside with their adult children, Seth and Stacy,2 at
300 Southview Avenue in Oakwood. During the morning of November 21, 2008, their
home was burglarized.
{¶ 4} According to the State’s evidence at the June 2010 trial, at approximately
8:30 a.m. on November 21, 2008, Jane Maney left with Seth and Stacy to take Stacy to work
and to run errands. Michael remained in the house and fell asleep in the downstairs den.
Jane and Seth returned around 11:30 a.m. They woke Michael, and Michael left for an
appointment shortly thereafter. When Seth headed to the stairs leading to the second floor,
he heard the sounds of people moving upstairs and objects being dropped on the floor. Seth
informed his mother, who also heard sounds upstairs, and the two left the house, leaving
their coats and cell phones behind.
1 Michael Maney’s first name is Charles, but he is known by his middle name. 2 At the time of the June 2010 trial, Stacy was 28 years old, and Seth was 24 years old. 3
{¶ 5} Seth drove them around the block and then down the street to a gas station to
use a pay phone to call the police. When the pay phone did not work, they decided to drive
to the nearby police station. As they drove, they saw a man running from the direction of
their home. The Maneys arrived at the Oakwood police station within a minute and
provided a description of the man they had seen to the police.
{¶ 6} Lieutenant Keith Benson heard a dispatch reporting the burglary and the
description of the person the Maneys had seen running. Benson quickly responded to the
area and noticed a person matching that description standing at the intersection of Far Hills
Avenue and Thruston Boulevard (an intersection known as the “Five Points” intersection),
which is near Southview Avenue. Benson turned onto Thruston, parked his vehicle, and
attempted to stop the man, later identified as Fair. Fair made eye contact with the officer,
turned, and ran across several yards. Benson chased Fair on foot, and stopped him by
tackling Fair’s legs. A fight ensued, and Fair was ultimately subdued when other officers
arrived and handcuffed him. Several items of the Maneys’ personal property were found in
the yard where Fair and Benson had struggled.
{¶ 7} Fair was arrested and taken to the Oakwood police station, where several
other items belonging to the Maneys were removed from his pockets. Fair initially
informed the officers that he was not “going to tell you anything but my name.” However,
while there, Fair made several unsolicited statements to Detective Hill and Officer Wilson,
including that “he should have never went with those guys,” that he “was with Benny Brown
and Mike,” that “they were driving around and they were doing some stuff,” and that he
“needed money.” Because the struggle between Fair and Lieutenant Benson had caused 4
bleeding, the officers asked Fair if he would voluntarily submit to have his blood withdrawn
at a hospital for testing. Officer Wilson took Fair to Kettering Medical Center.
{¶ 8} While at the hospital, Fair asked to speak with Detective Hill again. Fair
was returned to the Oakwood police station. Hill asked Fair what he wanted to say. Fair
responded, “You help me out, I’ll help you out.” Fair stated that he did not commit the
burglary, and that he was with Benny and Mike. Fair told Hill that “I fence the property for
them.” Fair stated, “Benny and Mike steal the property, and they give it to me, and I know
how to get rid of it. I stayed in the car while Benny and Mike committed the burglary.”
After this exchange, Fair was transported to the Montgomery County Jail.
{¶ 9} In December 2008, Fair was indicted with complicity to commit burglary,
receiving stolen property, and assault on a peace officer.
{¶ 10} In February 2009, Fair moved to suppress all of the evidence against him,
arguing that the Oakwood officers had no reasonable suspicion or probable cause upon
which to stop him, that the warrantless search of his person was unlawful, and that he was
questioned by the Oakwood officers without a waiver of his rights under Miranda v. Arizona
(1966), 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial court held a
suppression hearing, following which the parties agreed to submit supplemental briefs.
{¶ 11} Before the trial court ruled on the suppression motion, the parties filed
stipulations regarding the admissibility of the evidence. The parties agreed that the
Oakwood police officers had reasonable suspicion to make an investigatory stop of Fair and
had probable cause to search Fair incident to a lawful arrest. The parties further agreed that
certain statements made by Fair at the police station were admissible as spontaneous 5
statements, while other unspecified statements were not admissible. In light of the
stipulations, Fair withdrew his motion to suppress.
{¶ 12} In January 2010, the case was tried to a jury. The jury found Fair guilty of
receiving stolen property and assault on a peace officer, but could not reach a verdict on the
complicity to commit burglary charge; the trial court declared a mistrial as to that charge.
In June 2010, a second jury trial was held on complicity to commit burglary, and the jury
found Fair guilty.
{¶ 13} At sentencing, the trial court sentenced Fair to five years for complicity to
commit burglary (Count 1) and to one year for receiving stolen property (Count 2). The
court indicated that the offenses would merge, but if they did not, the sentences would run
concurrently. The court imposed a one-year sentence for assault on a peace officer (Count
3), to run consecutively to the other sentences. The total sentence was six years. In its
termination entry, the court merged Counts 2 and 3 (receiving stolen property and assault),
and indicated that the one-year sentence would be served consecutively to the five-year
sentence for complicity to commit burglary.
{¶ 14} Fair raises four assignments of error on appeal.
II
{¶ 15} We begin with Fair’s second assignment of error, which states:
{¶ 16} “THE TRIAL COURT ERRED IN OVERRULING
DEFENDANT/APPELLANT’S RULE 29 MOTION FOR ACQUITTAL.”
{¶ 17} At the conclusion of the State’s case, Fair moved for a judgment of acquittal
on the ground that the State failed to prove that he “did anything to aid and abet the burglary 6
that took place.” Fair did not dispute that the Maneys’ home was burglarized on November
21, 2008. He argued, however, that there was no evidence that placed him inside the home
or on the property and that his presence near the home while in possession of the Maneys’
property was insufficient to constitute complicity. Fair further emphasized that his
statements to the police supported the view that he had committed receiving stolen property,
not burglary. The trial court denied Fair’s motion.
{¶ 18} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court
applies the same standard as is used to review a sufficiency of the evidence claim. State v.
Thaler, Montgomery App. No. 22578, 2008-Ohio-5525, ¶14 (citation omitted). “A
sufficiency of the evidence argument disputes whether the State has presented adequate
evidence on each element of the offense to allow the case to go to the jury or sustain the
verdict as a matter of law.” State v. Wilson, Montgomery App. No. 22581, 2009-Ohio-525,
¶10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. When reviewing
whether the State has presented sufficient evidence to support a conviction, the relevant
inquiry is whether any rational finder of fact, after viewing the evidence in a light most
favorable to the State, could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 1997-Ohio-372, citing Jackson
v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d. 560. A guilty verdict will
not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached
by the trier-of-fact.” Id.
{¶ 19} R.C. 2923.03(A)(2) states that “[n]o person, acting with the kind of
culpability required for the commission of an offense, shall *** [a]id or abet another in 7
committing the offense.” A person aids and abets the commission of a crime when he
advises, supports, assists, encourages or cooperates with the principal offender, and shares
the criminal intent of the principal offender. State v. Johnson, 93 Ohio St.3d 240,
2001-Ohio-1336. “Such intent may be inferred from the facts and circumstances surrounding
the crime.” State v. Whitfield, Montgomery App. No. 22432, 2009-Ohio-293.
{¶ 20} Viewing the evidence in the light most favorable to the State, we find
sufficient evidence to support the conviction for complicity to commit burglary. Jane and
Seth Maney testified that they heard the sounds of two or more people inside their home,
without their permission, shortly before noon on November 21, 2008. After attempting to
call the police from a nearby payphone, they saw a man in dark jeans and a large
dark-colored parka with fur around the hood running from the area of their house. Within a
short time, the police were notified of the burglary and the person that the Maneys had seen,
and an Oakwood officer located Fair, who matched the description reported by the Maneys,
at the “Five Points” intersection near the Maneys’ home. When Fair was apprehended,
several items of the Maneys’ personal property were found on the ground where the struggle
had occurred, as well as in Fair’s pockets. Although Fair claimed the burglary was
committed by Benny and Mike, Detective Hill testified that he was unable to locate Benny
Brown, and there was no corroboration for Fair’s assertion that he merely waited in the car
while Brown and Mike “were doing stuff.” Taken together, the jury could have reasonably
believed that Fair actively participated in the burglary, particularly given that the Maneys
heard multiple people in their house and Fair was found running from the area with the
Maneys’ personal property in his possession. 8
{¶ 21} As related by Detective Hill at trial , Fair also made statements to Oakwood
officers that he “fenced” stolen property for Benny Brown and Mike and that he had
remained in the car while those individuals entered the Maneys’ home to commit the
burglary. Fair had also indicated, however, that he had needed money. Thus, even if the
jury believed that Fair had not entered the residence, the jury could have reasonably
concluded that Fair had planned the burglary with Benny and Mike due to Fair’s need for
money. The trial court did not err in denying Fair’s Crim.R. 29 motion.
{¶ 22} The second assignment of error is overruled.
III
{¶ 23} Fair’s first assignment of error states:
{¶ 24} “TRIAL COUNSEL WAS INEFFECTIVE IN STIPULATING TO THE
ADMISSIBILITY OF INCRIMINATING STATEMENTS MADE BY DEFENDANT
DURING CUSTODIAL INTERROGATION.”
{¶ 25} Fair’s trial counsel filed a motion to suppress the evidence seized from and
the statements made by Fair. The motion was withdrawn after Fair and the State stipulated
to the lawfulness of Fair’s stop and arrest and the admissibility of certain statements made by
Fair to Oakwood police officers.
{¶ 26} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel’s conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley 9
(1989), 42 Ohio St.3d 136. Deficient performance means that claimed errors were so
serious that the defense attorney was not functioning as the “counsel” that the Sixth
Amendment guarantees. State v. Cook (1992), 65 Ohio St.3d 516, 524.
{¶ 27} The “failure to file a suppression motion does not constitute per se ineffective
assistance of counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, quoting
Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305.
Rather, trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of
counsel only if the failure to file the motion caused the defendant prejudice; that is, when
there is a reasonable probability that, had the motion to suppress been filed, it would have
been granted. State v. Howard, Montgomery App. No. 23795, 2011-Ohio-27, ¶22, citing
State v. Wilson, Clark App. 08CA0445, 2009-Ohio-2744, ¶11. In the same vein, trial
counsel’s decision to stipulate to the admissibility of evidence and to withdraw a motion to
suppress would constitute ineffective assistance of counsel only if such a decision were
prejudicial.
{¶ 28} Fair’s assignment of error is confined to the statements that he made at the
Oakwood police station. Accordingly, we will likewise limit our discussion to those
statements.
{¶ 29} According to Detective Hill’s testimony at the suppression hearing, Fair was
secured in a holding cell upon being taken to the station by Officer Wilson. When Hill
arrived 15 minutes later, he asked Fair for his name, but Fair was uncooperative. Hill
explained to Fair that the officers were going to find out who he was and would take him to
the Montgomery County Jail for live identification, if necessary. Fair responded, “I’m not 10
going to tell you anything but my name.” Fair provided his name, address, and Social
Security number, and he said that he was on parole. Fair repeatedly mumbled obscenities to
himself. He also commented that he “should’ve never went with those guys” or “took that
shit.” Based on this comment, Detective Hill believed that Fair had direct knowledge of the
burglary.
{¶ 30} Detective Hill told Fair that he needed to read him his Miranda rights before
they spoke further. Hill testified that Fair “wouldn’t even allow me to read him his rights”
and that Fair “declined totally *** to be *** formally interviewed.”
{¶ 31} For the next few minutes, Detective Hill and Officer Wilson chatted amongst
themselves. At one point, Hill asked Wilson if he had heard any updates about Lieutenant
Benson, who had been taken to the hospital. Fair then stated that he had been “with two
guys named Benny Brown and Mike,” that they “were driving around and they were doing
some stuff,” and that he (Fair) “needed money.” Detective Hill asked some follow-up
questions, such as questions about the type of car they were in, about the altercation with
Benson, and about gloves that were found on Fair’s person; Fair responded to those
questions, but the State did not elicit the exact wording of Fair’s response (and these
statements were not offered at trial).
{¶ 32} During the conversation, the officers asked Fair if he would be willing to go
to the hospital for a voluntary blood draw due to the exchange of blood during the altercation
between Fair and Benson. Fair expressed that his ribs were sore. Fair was taken to
Kettering Medical Center by Officer Wilson.
{¶ 33} While at the hospital, Fair asked to speak with Detective Hill again. Wilson 11
notified Hill, who told Wilson to return Fair to the Oakwood station when Fair was released
from the hospital. At approximately 6:00 p.m., Officer Wilson and Fair came into the
holding cell area. Upon being asked what he wanted, Fair said, “You help me out and I’ll
help you out.” Detective Hill responded to Fair that he (Fair) was on parole, had “100
years on the shelf,” had two active felony warrants, and was “facing a bunch of charges” in
Oakwood; Hill stated that there was nothing that he could do.
{¶ 34} Fair responded that he “did not commit any burglary” and that he “was with
Benny Brown and Mike.” Fair stated that he “fences property for them” and that “Benny
and Mike steal the property, they give it to [Fair], and [Fair] knows where to get rid of it.”
Fair indicated that he had “stayed in the car while Benny and Mike committed the burglary.”
Hill asked Fair additional questions after these statements by Fair and told Fair about the
evidence against him, but the prosecutor did not have the detective testify to Fair’s
responses. Detective Hill made clear that Fair never received Miranda warnings.
{¶ 35} At the conclusion of the testimony, the prosecutor informed the trial court
that he had “only elicited statements that in our opinion *** would not have violated
Miranda or the Constitutional rights of the Defendant. *** [T]he State has only elicited such
statements that would be spontaneous statements.” (Supp. Tr. at p.52) The State repeated
that it had brought out only the “specific statements” that it believed to be admissible and
“left out the ones that we don’t believe *** should come in.”
{¶ 36} The parties subsequently stipulated that the following statements were
admissible as spontaneous statements: (1) “I’m not going to tell you anything but my name;”
(2) “I should have never went with those guys;” (3) “I was with Benny Brown and Mike;” 12
(4) “They were driving around and they were doing some stuff;” (5) “I needed money;”
(6) “You help me out, I’ll help you out;” (7) “I did not commit any burglary;” (8) “I was with
Benny and Mike, and I fence property for them;” (9) “Benny and Mike steal the property,
and they give it to me, and I know how to get rid of it;” and (10) “I stayed in the car, while
Benny and Mike committed the burglary.” The stipulation further provided that the other
statements made by Fair to police officers on November 21, 2008, were inadmissible. In
exchange for the stipulation, Fair withdrew his motion to suppress. The prosecutor, Fair’s
counsel, and Fair signed the stipulation.
{¶ 37} The Fifth Amendment to the United States Constitution provides that “[n]o
person *** shall be compelled in any criminal case to be a witness against himself.” “The
Fifth Amendment privilege against compulsory self-incrimination ‘protects against any
disclosures that the witness reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.’ ” Hiibel v. Sixth Judicial Dist. Court of
Nevada, Humboldt Cty. (2004), 542 U.S. 177, 190, 124 S.Ct. 2451, 159 L.Ed.2d 292,
quoting Kastigar v. United States (1972), 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212;
Ohio v. Reiner (2001), 532 U.S. 17, 20, 121 S.Ct. 1252, 149 L.Ed.2d 158. “The right to
Miranda warnings is grounded in the Fifth Amendment’s prohibition against compelled
self-incrimination.” State v. Strozier, 172 Ohio App. 3d 780, 786-87, 2007-Ohio-4575, ¶16,
citing Moran v. Burbine (1986), 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410.
{¶ 38} The first stipulated statement was made by Fair in response to Detective
Hill’s attempts to ascertain Fair’s name and other identifying information. A police officer
is not required to provide Miranda warnings prior to asking “routine booking questions.” 13
State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶32. “Routine booking questions are
questions asked in order ‘to secure the biographical data necessary to complete booking or
pretrial services.’” Id. at ¶33, quoting Pennsylvania v. Muniz (1990), 496 U.S. 582, 601, 110
S.Ct. 2638, 110 L.Ed.2d 528. The first stipulated statement would have been admissible
even absent the stipulation.
{¶ 39} According to Hill’s testimony at the suppression hearing, the second
stipulated statement was volunteered by Fair while Fair was responding to the booking
questions. A suspect who volunteers information, and who is not even asked any questions,
is not subject to a custodial interrogation and is not entitled to Miranda warnings. State v.
McGuire (1997), 80 Ohio St.3d 390, 401, citing State v. Roe (1989), 41 Ohio St.3d 18, 22.
In other words, “Miranda does not affect the admissibility of ‘[v]olunteered statements of
any kind.’” Id., citing Miranda, 384 U.S. at 478; State v. Montgomery, 2010-Ohio-5047,
¶15. The third, fourth, and fifth stipulated statements regarding Fair’s involvement with
Benny and Mike were made by Fair while Hill and Wilson were talking to each other about
Benson’s being at the hospital. Fair argues that the officers’ conversation was the
functional equivalent of an interrogation, because it was likely to elicit an incriminating
response.
{¶ 40} “‘Interrogation’ includes express questioning as well as ‘any words or actions
on the part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from the
suspect.’” Strozier at ¶20, quoting Rhode Island v. Innis (1980), 446 U.S. 291, 301, 100
S.Ct. 1682, 64 L.Ed.2d 297. “Interrogation” must reflect “a measure of compulsion above 14
and beyond that inherent in custody itself.” Innis, 446 U.S. at 300. “Police officers are not
responsible for unforeseeable incriminating responses.” State v. Waggoner, Montgomery
App. No. 21245, 2006-Ohio-844, ¶14; Strozier at ¶20.
{¶ 41} In Innis, the defendant was arrested for an armed robbery involving a
shotgun; at the time of his arrest, Innis was unarmed. Innis was given Miranda warnings,
and he invoked his right to speak with a lawyer. While three officers transported Innis to
the police station, one of the officers began talking to another officer regarding the missing
shotgun. One of the officers stated that there were “a lot of handicapped children running
around in this area” because a school for such children was nearby, and “God forbid one of
them might find a weapon with shells and they might hurt themselves.” With that, Innis
insisted on showing the officers where he had concealed the shotgun. He subsequently
moved to suppress that evidence. The trial and appellate courts denied the motion.
{¶ 42} On review, the United States Supreme Court held that the statements the
officers made were not ones which they should have known were reasonably likely to elicit
an incriminating response. There was no express questioning, and nothing in the record
indicated that the officers were aware that the defendant was “particularly susceptible to an
appeal to his conscience concerning the safety of handicapped children,” or that he was
“unusually disoriented or upset” when the statements were made. Though some “subtle
compulsion” was present, the Court concluded that the officers’ words did not constitute
interrogation.
{¶ 43} We are not convinced that Detective Hill and Officer Wilson’s casual
discussion regarding Benson’s physical condition involved a level of compulsion such that 15
the officers should have known that Fair would likely make an incriminating remark in
response. Nothing in the record suggests that the officers emphasized the seriousness of
Benson’s injuries and took advantage of a known susceptibility, such that Fair would have
been compelled to respond.
{¶ 44} Nevertheless, even assuming that Detective Hill and Officer Wilson should
have known that their conversation was likely to elicit an incriminating response from Fair
regarding the assault, we are not persuaded that Fair’s statements regarding his activities
with Benny and Mike were a reasonably foreseeable response to that conversation. The
officers’ conversation focused solely on Benson’s medical condition. Although Benson’s
injuries were the product of an altercation with Fair, that conduct was separate and distinct
from the burglary about which Fair commented. The officers could not have reasonably
expected that Fair would make statements regarding the individuals involved in the burglary,
given the topic of the conversation that the officers were having. Under these facts, the
stipulated statements made at the station during the officers’ conversation were spontaneous
and volunteered responses. See State v. Thompson, Clark App. No. 07 CA 35,
2008-Ohio-3623, ¶21.
{¶ 45} Finally, we find no Miranda violation as to the remaining stipulated
statements, which were made after Fair left Kettering Medical Center and returned to the
police station. Fair requested the opportunity to speak with Detective Hill again, and Hill’s
question to Fair asking Fair what he wanted merely acknowledged that Fair had asked to see
him (Hill). Stated simply, Fair initiated the conversation and his statement that “You help
me out, I’ll help you out” was not the product of police questioning. Detective Hill’s 16
response that there was nothing that he (Hill) could do also did not constitute interrogation,
and the remaining stipulated statements were unsolicited and spontaneous.
{¶ 46} Accordingly, upon review of the suppression hearing, the statements to which
defense counsel had stipulated would have been admissible even without the stipulation.
We find no reasonable probability that the quantum of admissible statements would have
been different had defense counsel elected not to enter into the stipulation and allowed the
trial court to rule on Fair’s suppression motion. Counsel did not render ineffective
assistance by entering into the stipulation with the State.
{¶ 47} The first assignment of error is overruled.
IV
{¶ 48} Fair’s third assignment of error states:
{¶ 49} “THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL
FROM ARGUING TO THE JURY THAT DEFENDANT SHOULD BE CONVICTED
RATHER OF A LESSER RELATED OFFENSE.”
{¶ 50} In his third assignment of error, Fair claims that the trial court deprived him
of his constitutional right to due process when it precluded him from arguing during closing
argument that his conduct constituted receiving stolen property, a lesser related charge,3 but
not complicity to commit burglary.
{¶ 51} “The purpose of closing argument is to summarize the evidence at trial.”
John F. Bushelman Const., Inc. v. Glacid Group, Inc. (June 26, 1996), Hamilton App. Nos.
3 Fair acknowledges that receiving stolen property is not a lesser included offense of complicity to commit burglary. Rather, he argues that it is a related, less serious offense. 17
C-950412, C-950438. Prosecutors and defense counsel are afforded a wide degree of
latitude during closing arguments to address what the evidence has shown and what
reasonable inferences may be drawn from that evidence. State v. Black, 181 Ohio App.3d
821, 2009-Ohio-1629, ¶33, citing State v. Lott (1990), 51 Ohio St.3d 160, 165.
{¶ 52} At the conclusion of the State’s case, the prosecutor asked the trial court to
preclude Fair’s counsel from arguing that his conduct constituted receiving stolen property.
The prosecutor argued that the jury was faced only with complicity to commit burglary, and
the mention of the receiving stolen property charge, of which Fair had already been
convicted, would confuse the jury. The State asserted that “by mentioning that other
charge, that it’s not a receiving stolen property that he’s on trial for, implies to the jury that
that’s what he should have been charged with. And that’s misleading the jury. And that
would imply to the jury that he should have been charged with something else.”
{¶ 53} Fair’s counsel countered that he would not go into detail about the definition
of receiving stolen property, only that there is a charge of receiving stolen property that is
not before the jury. Counsel stated, “But what I would be able to say is, this case is not
whether or not Mr. Fair is guilty of receiving stolen property, which is the facts. *** But for
me to not mention to the jury that there are two separate and distinct charges, that they are
not to deal with receiving stolen property, does not mean I can’t mention it for the purpose
of folks, this is about complicity. And I think Mr. Fair would be deprived of his rights to a
fair trial in this retrial if that issue can’t at least be mentioned.” Defense counsel
emphasized that he was able to contrast receiving stolen property from complicity to commit
burglary in the first trial and that trial resulted in a hung jury on the complicity charge. 18
{¶ 54} The trial court granted the State’s request, stating: “*** I think for you
[defense counsel] to bring up the issue of receiving stolen property at this point is improper
and may impinge upon the State’s request for a fair trial because the issue is, is he [Fair]
guilty of complicity or not. ***”
{¶ 55} Defense counsel’s theme during closing argument was that the State had
failed to provide any evidence that Fair aided and abetted the burglary. He began, stating:
{¶ 56} “*** We can sit here and talk about all the things Mr. Fair may or may not
have done that day. But you are charged with deciding whether or not the State has proven
to you beyond a reasonable doubt that Mr. Fair purposely aided or abetted another in the
commission – committing the offense of burglary. That is your charge, ladies and
gentleman of the jury.
{¶ 57} “So the issue before you is very simple. Did Mark Fair aid and abet those
responsible for the burglary of the Maneys’ home on November 21, 2008? I’m not going to
stand up here and tell you their home wasn’t burglarized. It’s clear it was. *** But as I also
mentioned yesterday, that – what this case is about is determining whether this man is not
responsible for burglarizing the house but for aiding or abetting another in the commission
of that burglary. ***”
{¶ 58} Defense counsel also argued:
{¶ 59} “*** [T]hey steal the property, they give it to me, and I know how to get rid
of it. He [Fair] fences property. Where’s the evidence that he participated in the stealing
of it? *** The Maneys were burglarized. He was found with the stuff. Convict. But
convict of what? The charge is complicity to convict burglary. That’s what.” 19
{¶ 60} “*** He had the stuff on him. He did. That’s why he ran. He had to
make his profit gone (sic). Does that mean to you that he burglarized their home? That he
aided and abetted others in burglarizing their home?
{¶ 61} “*** Yes, you can say that Mr. Fair had the property. Do you know how he
got the property? ***”
{¶ 62} Counsel emphasized that there was no physical evidence placing Fair inside
the Maneys’ home, there was no evidence that Fair assisted the people who went into the
home, and Detective Hill had testified that Fair said he was a “fence” for Benny and Mike,
who steal the property. Counsel repeatedly asked the jury, rhetorically, where the evidence
was that Mr. Fair aided and abetted in the burglary, and he argued that “[t]his is about
convicting the right person” and not about convicting Fair just because he was found with
the property.
{¶ 63} Upon review of the transcript, we find no prejudicial error with respect to
defense counsel’s closing argument. Assuming, for sake of argument, that the trial court
erred in precluding defense counsel from arguing another specific statutory violation,
defense counsel strongly argued that Fair was a “fence” and that his conduct was limited to
liquidating property that Benny and Mike had stolen. Counsel emphasized that the State
had failed to prove that Fair had aided and abetted the burglary, and that Fair should not be
punished for the burglary committed by others. In our view, defense counsel was able to
effectively argue that Fair’s conduct in possessing the property was distinguishable from
complicity to commit burglary.
{¶ 64} The third assignment of error is overruled. 20
V
{¶ 65} Fair’s fourth assignment of error states:
{¶ 66} “MR. FAIR’S CONVICTIONS FOR RECEIVING STOLEN PROPERTY
AND COMPLICITY TO BURGLARY SHOULD HAVE BEEN MERGED AT THE
CONVICTION LEVEL.”
{¶ 67} In his fourth assignment of error, Fair claims that his convictions for
complicity to commit burglary and receiving stolen property should have been merged,
rather than being merged only for purposes of sentencing, because he could not be convicted
both of stealing and receiving the same property. Fair relies upon Maumee v. Geiger
(1976), 45 Ohio St.2d 238, which held that receiving stolen property and theft were allied
offenses of similar import.
{¶ 68} Revised Code 2941.25, Ohio’s multiple count statute, provides:
{¶ 69} “(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.
{¶ 70} “(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.”
{¶ 71} “R.C. 2941.25 codifies the double jeopardy protections in the federal and
Ohio constitutions, which prohibit courts from imposing cumulative or multiple 21
punishments for the same criminal conduct unless the legislature has expressed an intent to
impose them. R.C. 2941.25 expresses the legislature’s intent to prohibit multiple
convictions for offenses which are allied offenses of similar import per paragraph (A) of that
section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker, 183 Ohio
App.3d 414, 2009-Ohio-3511, ¶22, citing State v. Rance, 85 Ohio St.3d 632,
1999-Ohio-291, overruled on other grounds by State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314.
{¶ 72} Subsequent to sentencing in this case, the Ohio Supreme Court clarified the
process by which courts determine whether offenses are allied offenses of similar import.
Johnson, supra. The Johnson court overruled Rance “to the extent that it calls for a
comparison of statutory elements solely in the abstract under R.C. 2941.25.” Johnson at ¶44.
Now, “[w]hen determining whether two offenses are allied offenses of similar import
subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id.
{¶ 73} Johnson states that “the intent of the General Assembly is controlling.” Id. at
¶46. “We determine the General Assembly’s intent by applying R.C. 2941.25, which
expressly instructs courts to consider the offenses at issue in light of the defendant’s
conduct.” Id. The trial court must determine prior to sentencing whether the offenses were
committed by the same conduct. The court no longer must perform any hypothetical or
abstract comparison of the offenses at issue in order to conclude that the offenses are subject
to merger. Id. at ¶47 “In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to commit one offense
and commit the other with the same conduct, not whether it is possible to commit one 22
without committing the other. If the offenses correspond to such a degree that the conduct
of the defendant constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import.” Id. at ¶48 (internal citation omitted).
{¶ 74} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e., ‘a
single act, committed with a single state of mind.’” Id. at ¶49 (citation omitted). “If the
answer to both questions is yes, then the offenses are allied offenses of similar import and
will be merged.” Id. at ¶50. “Conversely, if the court determines that the commission of
one offense will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶51.
{¶ 75} When two or more offenses must be merged as allied offenses of similar
import, the prosecutor must elect which offense it will pursue. State v. Harris, 122 Ohio
St.3d 373, 2009-Ohio-3323, ¶21-23; State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,
¶25. “[A] trial court must merge the crimes into a single conviction and impose a sentence
that is appropriate for the offense chosen for sentencing.” State v. Damron, Ohio
St.3d , 2011-Ohio-2268, ¶17, citing State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, ¶41-43.
{¶ 76} At sentencing, the State conceded that Fair’s burglary and receiving stolen
property charges were allied offenses of similar import, but the prosecutor did not elect an
offense on which Fair should be sentenced. The trial court imposed a five-year prison term
for Count I, complicity to commit burglary, and a one year for receiving stolen property. 23
The court found that “those two charges arise out of the *** the same event and that the
receiving could be considered a lesser charge of the *** complicity to commit burglary, so
the Court says that those would run concurrent or merge. I believe they would merge. But
if they don’t, they run concurrent.” The court sentenced Fair to one year in prison for
assault on a peace officer, to run consecutively to the other counts.
{¶ 77} The court’s judgment entry differs somewhat from the sentence that was
orally imposed. The entry provides that Fair was sentenced to five years on Count 1
(complicity to commit burglary). As to receiving stolen property and assault on the peace
officer, the entry imposes “a term of one (1) year on counts #2 and 3 which merge into one
(1) year term, but shall be served Consecutively to count #1 for a term of (6) years of
imprisonment.”
{¶ 78} In light of the State’s concession to the trial court, we will assume, with the
facts before the court, that burglary and receiving stolen property are allied offenses of
similar import. Although the trial court also expressed its belief that the two offenses
would merge, the court imposed separate sentences for each of the offenses and “merged”
two of the sentences. The trial court, in essence, imposed concurrent sentences and, by
doing so, failed to properly merge the allied offenses. Damron at ¶17. Accordingly, we
must remand to the trial court for a new sentencing hearing.
{¶ 79} The Supreme Court has recently provided additional guidance to the trial
court as to its obligations upon remand, as follows:
{¶ 80} “A remand for a new sentencing hearing generally anticipates a de novo
sentencing hearing. R.C. 2929.19(A). However, a number of discretionary and mandatory 24
limitations may apply to narrow the scope of a particular resentencing hearing. For
example, the parties may stipulate to the sentencing court’s considering the record as it stood
at the first sentencing hearing. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶37. In a remand based only on an allied-offenses sentencing error, the guilty
verdicts underlying a defendant’s sentences remain the law of the case and are not subject to
review. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶26-27. Further,
only the sentences for the offenses that were affected by the appealed error are reviewed de
novo; the sentences for any offenses that were not affected by the appealed error are not
vacated and are not subject to review. [State v.] Saxon[, 109 Ohio St.3d 176,
2006-Ohio-1245,] at paragraph three of the syllabus.” State v. Wilson, Ohio St.3d
, 2011-Ohio-2669, ¶15.
{¶ 81} The fourth assignment of error is sustained.
VI
{¶ 82} Fair’s convictions will be affirmed. Fair’s sentence will be reversed, and the
matter will be remanded for resentencing.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Kirsten A. Brandt Lynne M. Fleming Hon. Frances E. McGee