State v. Gilbert

2012 Ohio 1165

• Court: Ohio Court of Appeals
• Decided: March 20, 2012
• Docket: 08 MA 206
• Status: Published

Opinion

[Cite as State v. Gilbert, 2012-Ohio-1165.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 08 MA 206 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) HATTIE GILBERT ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 08 CR 382 A

JUDGMENT: Affirmed in Part. Reversed in Part. Remanded.

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. Timothy Young Ohio Public Defender Atty. Kristopher A. Haines Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 20, 2012 [Cite as State v. Gilbert, 2012-Ohio-1165.] WAITE, P.J.

{¶1} Appellant Hattie Gilbert appeals her convictions on complicity to

attempted murder, complicity to felonious assault, complicity to aggravated robbery,

and complicity to kidnapping, along with four corresponding gun specifications. She

received a combined sentence of fifty years in prison. Appellant raises eight

assignments of error in this appeal. The state has conceded that the trial court

should have merged the gun specification sentences, and we correct this error

herein. Appellant also argues that there were allied offenses that should have

merged at sentencing. The analysis for appellate review of allied offenses was

recently changed in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061. Under the Johnson analysis, and based on the specific facts of this

case, aggravated robbery and kidnapping are not allied offenses and the sentences

should not have merged. Similarly, under the facts of this case, attempted murder

and felonious assault are not allied offenses and the trial court properly imposed

sentences for both crimes. Appellant raises an error regarding jury instructions, but

Appellant did not object to the jury instructions and the caselaw cited in support is not

relevant to the issue raised. Appellant argues that there was insufficient evidence of

complicity to robbery, but the record does not support the argument. Her Fourth

Amendment arguments likewise are not persuasive. She raises a Sixth Amendment

Confrontation Clause issue regarding a hearsay statement attributed to her

codefendant Taran Helms, but any error is harmless in light of the otherwise

overwhelming evidence of her guilt. She further argues that there should have been

a change of venue due to pretrial publicity, but the record does not show jury bias as -2-

a result of the alleged publicity or that the publicity was excessive. The record also

supports the imposition of maximum consecutive sentences, and does not establish

ineffective assistance of counsel.

{¶2} All of Appellant’s arguments, except those related to her first

assignment of error, are overruled. The sentences for the firearm specifications are

hereby merged. Appellant's convictions and the remaining aspects of her sentence

are hereby affirmed.

Facts and Procedural History

{¶3} On April 3, 2008, Taran Helms and Hattie Gilbert were indicted by a

Mahoning County Grand Jury on counts of attempted murder, felonious assault,

aggravated robbery, and kidnapping, as well as four accompanying firearm

specifications. The charges arose from a series of events that occurred on March 24,

2008, wherein the victim, Joseph Kaluza, was robbed and shot while on the way to

make a bank deposit for his employer, a Kentucky Fried Chicken restaurant. As he

headed for the bank, a blue-gray Saturn vehicle pulled up and suddenly stopped in

front of him, causing an accident with Kaluza's vehicle. Kaluza called his district

manager to report the accident, then called the police. Immediately following the

accident, a man came up from behind Kaluza's vehicle and shot Kaluza in the neck.

The man took the deposit money, pushed Kaluza's car to a more secluded spot, and

threatened to shoot Kaluza again. The man then fled on foot. Police investigations

eventually led to the arrests of Appellant and Helms. -3-

{¶4} Appellant filed a motion to suppress on August 8, 2008. She sought to

suppress statements she made to the police at her home prior to her arrest. The

motion was denied on August 28, 2008.

{¶5} Co-defendant Helms filed a motion for change of venue on September

3, 2008, arguing that extensive pretrial publicity about the case necessitated a

change of venue. Helms attached approximately 35 articles from newspaper and

internet sources, ranging from lengthy detailed articles to single-line references,

regarding the robbery, the investigation and legal proceedings, and the medical

recovery of the victim. Helms later supplemented his motion for change of venue,

attaching a DVD of television news coverage of the incident. Appellant joined Helm's

motion on September 15, 2008. The motion was denied on September 15, 2008.

{¶6} The joint trial for Helms and Appellant commenced on September 15,

2008. Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken

restaurant. One of his duties was to take the restaurant's deposits to the bank.

While he was driving to the bank on March 24, 2008, a car decelerated suddenly in

front of Kaluza, causing him to hit the rear of her vehicle. Appellant was the driver of

that vehicle. Kaluza immediately called the police and the area manager for his

restaurant. Appellant got out of her car and asked to use Kaluza's cellular phone.

She used the phone and returned it to Kaluza. She then returned to her car. Shortly

thereafter, codefendant Taran Helms appeared at the driver's side of Kaluza's car

and shot Kaluza in the neck, instantly paralyzing him. Helms walked to Gilbert's car,

motioned for her to leave, then returned to Kaluza's car and pushed it off of the main

road and onto a side street in front of an abandoned house. Helms then looked in -4-

the car for the deposit bag, and once he had found the bag containing $300.00, he

said to Kaluza: “Where’s the rest of the money, or I’m gonna shoot you in the head.”

(Tr., p. 1569.) Kaluza testified that, at that point, a man in a truck stopped and asked

if Kaluza and Helms needed help, and Helms declined the offer of assistance. Helms

then hurriedly grabbed another bag in the car (which turned out to be trash) and ran

off.

{¶7} Kaluza further testified that Kimberly Helms, the defendant's mother,

used to work at Kaluza's restaurant and knew the deposit procedure, but she was

fired the prior spring for theft.

{¶8} Kandace Johnson testified that she lived in a house a short distance

away from where the incident occurred. Johnson stated that she saw the car

accident occur, and saw Appellant exit her car, speak to Kaluza, and return to her

car. Johnson testified that Appellant was wearing a pink coat. Johnson saw Helms

walk from Ravenwood Street onto South Avenue, the main street where the accident

occurred. Helms walked up to Kaluza's car, fired a shot into the car without breaking

his stride, and continued to Gilbert's car. Helms and Appellant spoke together for a

minute. Johnson then saw Helms point for Appellant to leave, which she did.

Johnson saw Helms immediately return to Kaluza's car and start “fumbling around,”

by reaching into the car through the driver's side window. (Tr., p. 1611.) Johnson

saw Helms push the car, turn the car off, fumble around a bit more, then pull the car

off of South Avenue and onto a side street, Hilton. Johnson estimated that 90

seconds elapsed between the gunshot and moving the car. Johnson saw Helms -5-

continue to look around in Kaluza's car on the front passenger's side. Johnson saw

Helms run through a yard as tow-trucks arrived at the scene.

{¶9} Jeremy Vignon, a passerby, testified that he saw Kaluza in his car

shortly after the accident had occurred. As he drove by, Vignon noticed that Kaluza

was slumped over and bleeding. Vignon decided to turn around and go back to the

scene as Helms was finishing pushing the car onto Hilton. Vignon asked Helms if he

needed any help, and Helms responded that he only had a flat tire. Vignon drove off

again, but noticed that the car did not have a flat tire, and called the police. Vignon

circled around again, and when he returned to the scene, Helms was running through

the yard and tow trucks were arriving.

{¶10} David White, a tow truck driver for Ludt's Towing, arrived on the scene

as Helms was rummaging through Kaluza's vehicle. He and Mr. Vignon both

observed Helms get out of Kaluza's vehicle and run through a backyard heading

north, carrying an object in his hand.

{¶11} Law enforcement officers testified regarding their investigation of the

incident. Police arrived on the scene shortly after the accident and realized that a

potential homicide had taken place. Officer Justin Coulter and a K-9 unit were called

to the scene to search the area. Coulter started the search near the spot where

Kaluza's vehicle had come to rest. The dog immediately began to track a scent. His

tracking first led to a firearm. Next, the dog led Officer Coulter around a fence to a

black and orange jacket laying on the ground. The dog followed the scent to a

footprint behind a garage, but lost the track soon after that. -6-

{¶12} A Western Reserve Transit Authority (“WRTA”) bus video captured the

accident, showing a 2001/2002 blue-gray Saturn L series vehicle. Police generated

a list of owners of similar vehicles, which later led to a police interview at Appellant’s

residence because her car matched the car in the video. Police discovered a

damaged Saturn vehicle at Appellant's home similar to the car in the video.

Detective Lieutenant Milstead testified that he asked Appellant if she knew why he

was there, and she answered “Yeah. It's probably that crash I got into on South

Avenue.” (Tr., p. 1741.) Appellant admitted she wore a pink coat at the time and

retrieved it for the detective. She was placed under arrest and taken to the

Youngstown Police Department. She was read her Miranda rights and waived them

in writing. She soon confessed to planning the robbery of Kaluza. She had watched

Kaluza for several weeks, even to the point of following him to the bank to learn the

route he would take. She admitted to purchasing the bullets for a firearm two weeks

before the robbery.

{¶13} Detective Sergeant John Kelty testified that he interviewed Appellant

and later interviewed Helms, after Helms's wallet was found in her car and after

Helms's mother's prior employment at the Kentucky Fried Chicken had been

discovered. Appellant admitted she staged the accident so that the robbery could

take place. She watched from her rearview mirror as Kaluza was shot. She heard

the gun go off, and saw Kaluza's head slump forward. After speaking with Helms,

she drove away.

{¶14} Various items of physical and scientific evidence were admitted during

trial, including a video of the accident captured by a WRTA bus; a spent shell casing -7-

from the crime scene; a gun, coat, cap, and mask from the crime scene; the Bureau

of Crime Investigation's lab results, which found Helms's DNA on the gun, coat and

mask; and items retrieved from Appellant's car, including a box of bullets and Helms's

wallet.

{¶15} Neither Helms nor Gilbert presented a defense. The jury was charged

on September 18, 2008, and on the same day it returned a verdict of guilty against

both defendants. The jury convicted Appellant Gilbert on four counts of complicity

corresponding to the four counts in the indictment: complicity to attempted murder,

R.C. 2923.02(A) and 2903.02, a first degree felony; complicity to felonious assault,

R.C. 2903.11(A)(2), a second degree felony; complicity to aggravated robbery, R.C.

2911.01(A)(1), a first degree felony; and complicity to kidnapping, R.C.

2905.01(A)(2), a first degree felony. The first degree felonies carried possible ten-

year prison terms, and the second degree felony could be punished by an eight-year

prison term. The jury also convicted Appellant on the four corresponding firearm

specifications, each carrying a possible three-year prison term.

{¶16} A sentencing hearing was held on September 23, 2008, and a

sentencing judgment entry was filed the same day. The court imposed the maximum

prison terms on each count. Appellant received ten years in prison for count one,

eight years for count two, ten years for count three and ten years for count four, along

with three years in prison for each of the four firearm specifications. The sentences

were ordered to be served consecutively, for a total of fifty years in prison. The court

filed a corrected nunc pro tunc sentencing entry on September 26, 2008. This

appeal followed. -8-

ASSIGNMENT OF ERROR NO. 1

{¶17} “The trial court committed reversible error when it sentenced Ms. Gilbert

to multiple sentences for allied offenses of similar import committed with a single

animus, and failed to merge the firearm specifications regarding all counts in the

indictment, in violation of R.C. 2941,25, and in violation of Ms. Gilbert’s rights under

the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

(Sept. 26, 2008, Sentencing Entry; Sept. 23, 2008, Sentencing Memorandum).”

{¶18} In this assignment of error Appellant challenges three aspects of

sentencing. First, Appellant contends that her sentences for complicity to aggravated

robbery and kidnapping should have merged because they are allied offenses under

the new standard established in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061. Second, Appellant contends that her sentences for

complicity to attempted murder and complicity to felonious assault should also have

merged as allied offenses under Johnson. Third, Appellant argues that the

sentences for the four firearm specifications should have merged. The state has

already conceded that the firearm specifications should have merged. The only

remaining issue is whether Appellant was convicted and sentenced for allied

offenses.

{¶19} We first examine whether complicity to attempted murder and

complicity to felonious assault are allied offenses. The question as to whether crimes

are allied offenses arises from the Double Jeopardy Clause of the Fifth Amendment,

which protects individuals from multiple punishments for the same offense. Brown v.

Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio -9-

Legislature has codified this protection in R.C. 2941.25. Under the statute, a

defendant may not be punished for multiple offenses if the defendant's actions

constitute allied offenses of similar import. Id. at syllabus.

{¶20} In State v. Johnson, supra, the Ohio Supreme Court overruled State v.

Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), to the extent that Rance called for

a comparison of multiple offenses “solely in the abstract.” Johnson at ¶44. Rance

had attempted to create an objective standard for determining allied offenses based

on comparing the statutory elements of the crimes rather than looking at the conduct

of the accused. The Rance formula, though, sometimes led to absurd results and

became unworkable. Johnson returned a subjective element to the review of allied

offenses: “the statute instructs courts to examine a defendant's conduct—an

inherently subjective determination.” Johnson at ¶52. Pursuant to the plurality

opinion in Johnson:

{¶21} “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.’ Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).

{¶22} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶23} “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 ¶49-51. (Emphasis sic.) -10-

{¶24} It is clear that the conduct of the accused must now be considered

when determining whether multiple offenses were allied offenses. Id. at syllabus.

Thus, the test applied in Johnson is: 1) can the two offenses be committed by the

same conduct; and if so, 2) looking at the facts of the case, were the two offenses

committed by the same conduct as a single act with a single state of mind. Id. If the

answer to both questions is yes, then they are allied offenses of similar import and

must be merged. If the acts were committed separately or with a separate animus,

they are not allied offenses. Id. at ¶51.

{¶25} Johnson recognized that, due to the subjective nature of the analysis

based on the facts of each case, some crimes may be allied offenses in certain

cases, but not in another case under different facts. Id. at ¶52.

{¶26} The Johnson plurality holding has been followed in eleven of the twelve

appellate districts. State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067; State

v. Taylor, 3d Dist. No. 12-10-49, 2011-Ohio-5080; State v. Humphrey, 4th Dist. No.

10CA3150, 2011-Ohio-5238; State v. Hight, 5th Dist. No. 2011CA0056, 2011-Ohio-

5013; State v. Nickel, 6th Dist. No. OT-10-004, 2011-Ohio-1550; State v. Stoffer, 7th

Dist. No. 09-CO-1, 2011-Ohio-5133; State. Adkins, 8th Dist. No. 95279, 2011-Ohio-

5149; State v. McDaniel, 9th Dist. No. 25492, 2011-Ohio-5001; State v. Mason, 10th

Dist. Nos. 10AP-337, 10AP-342, 2011-Ohio-3301; State v. May, 11th Dist. No. 2010-

L-131, 2011-Ohio-5233; State v. Crosby, 12th Dist. Nos. CA2010–10–081, CA2011–

02–013, 2011-Ohio-4907. The First District seems to follow a different standard

based on the general notion that a trial court must simply look at the facts of the case -11-

to see if the state relied on the same conduct to prove two offenses. State v. Strong,

1st Dist. Nos. C-100484, C-100486, 2011-Ohio-4947.

{¶27} We now turn to the first set of alleged allied offenses: complicity to

attempted murder and complicity to felonious assault. To establish the elements of

attempted murder, the state must prove that the defendant engaged in conduct that,

if successful, would have resulted in purposely causing the death of another. R.C.

2903.02(A); R.C. 2923.02(A). To establish the elements of felonious assault, the

state must prove that the defendant knowingly caused or attempted to cause physical

harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). To establish

complicity by aiding and abetting under R.C. 2923.03(A), “the evidence must show

that the defendant supported, assisted, encouraged, cooperated with, advised, or

incited the principal in the commission of the crime, and that the defendant shared

the criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.” State v. Johnson, 93 Ohio St.3d 240, 754

N.E.2d 796 (2001), syllabus.

{¶28} The first question is whether attempted murder and felonious assault

can be committed with the same conduct. The answer is yes. The conduct of

pointing and shooting a gun at a person or persons can result in the death of one or

more individuals, and the same conduct can also fall short of causing death but can

cause physical harm. Since the answer to the first question is yes, the second

question is whether the two offenses were in fact committed with the same conduct,

i.e., was there was a single act committed with a single state of mind? Johnson, -12-

supra, at ¶49. The answer to this question depends in large measure on a review of

all of the facts of this case.

{¶29} The facts supporting attempted murder are as follows: Helms walked

up from behind Kaluza’s car with a loaded gun intending to rob the victim, pointed the

gun at the vicinity of Kaluza’s head from very close range, and fired the gun, hitting

the victim’s neck and paralyzing him. The facts supporting felonious assault are

more complicated. As the dissent pointed out in State v. Helms, 7th Dist. No. 08 MA

199, 2010-Ohio-4872 (“Helms I”), there are two sets of circumstances in the record in

which Helms used or threatened to use a gun against Kaluza. The facts surrounding

the attempted murder could be used to describe a felonious assault. Helms walked

up to Kaluza’s car with a deadly weapon and fired the weapon, causing serious

physical harm. If we rely on only these facts to support both charges, there is no

question the two offenses are allied. This record contains two scenarios involving a

gun threat, though. The record also reveals a second, separate, incident establishing

that after Helms shot Kaluza, he pushed Kaluza’s car to a more secluded location,

rummaged through the car looking for more money, then threatened to shoot Kaluza

in the head. There is evidence showing that Helms continued to possess the gun

that he used a few minutes earlier, and Helms’ intent to use the weapon again is

certainly established in this record because Kaluza had already been shot by Helms.

{¶30} Turning to the second set of facts as evidence of felonious assault, this

scenario also presents us with a separate crime having a separate animus that is

distinct from the other charges brought against Appellant. “There is no statutory or

constitutional prohibition against imposing separate punishments for allied offenses -13-

or lesser included offenses if they are committed independently or with a separate

animus.” State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, ¶19.

{¶31} Various cases have upheld the principle that threatening to use a

firearm, coupled with the act of pointing or waving a firearm at someone, satisfies the

elements of felonious assault. See, e.g., State v. Green, 58 Ohio St.3d 239, 569

N.E.2d 1038 (1991); State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (1990); State

v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 (1989); State v. Ellington, 2d Dist. No.

23828, 2010-Ohio-5280; State v. Jackson, 8th Dist. No. 93815, 2010-Ohio-4486.

“Pointing a firearm, coupled with a threat indicating an intention to use the weapon, is

sufficient to establish felonious assault. The defendant's intent to cause physical

harm may be inferred from his actions under the circumstances.” (Citations omitted.)

State v. Alexander, 11th Dist. Nos. C-100593, C-100594, 2011-Ohio-4911, ¶5. In all

of these cases, the determinative factor is whether the “defendant's actions were

strongly corroborative of his intent to cause physical harm * * * by means of his

deadly weapon.” Green, supra, at 242.

{¶32} In the instant case, we have even more conclusive facts to rely on than

those involved in Green and its progeny. Regarding the threat element, the record

shows that Helms specifically stated he was going to shoot Kaluza in the head. After

Helms made this threat, he was interrupted by a passerby, Jeremy Vignon, who

asked if everyone was okay or needed help. While Helms fled almost immediately

after speaking with Vignon, there is no doubt that Helms’ threat was serious because

he had already fired the gun at Kaluza, hitting him in the neck. Helms had not

hesitated to use the gun earlier. He walked up behind Kaluza’s car and fired at him -14-

without warning. Because Kaluza was unable to turn his head and actually see

Helms when he made the verbal threat, we do not have direct evidence that the gun

was pointed at Mr. Kaluza contemporaneously with the threat. But we have much

more reliable evidence of the defendant’s willingness and ability to shoot; Helms

actually shot the victim shortly before threatening to do it again. Mr. Vignon

interrupted the course of this crime, but the gun was retrieved near the (second)

crime scene with a live round in the chamber. (Tr., p. 2024.) The gun was

undeniably functional as it had already been used a few minutes earlier. The gun

was also test fired by the BCI during the investigation of the case and was found to

be operational. (Tr., p. 2058.) Compared to the facts in Green, the facts of the

instant case are much more corroborative of the defendant’s intent and ability to

cause physical harm to Kaluza by means of a deadly weapon.

{¶33} The main difference between the facts of Green and related cases

versus the instant case is that the prior cases rely on evidence that the gun was

physically pointed at the intended victim to establish intent, whereas here, we rely on

the actual use of the weapon to establish intent. In this case, Kaluza had already

been shot and paralyzed when Helms made his threat, so there is no testimony that

he saw Helms pointing the gun at him. The evidence of the gun being pointed at the

victim, though, is cited in the body of caselaw that follows Green as part of the

corroborative evidence to establish the defendant’s intent to use the weapon. It is

not that the weapon was pointed that is determinative in these types of cases, and in

fact, that fact alone is not sufficient of itself to establish felonious assault: “The act of

pointing a deadly weapon at another, without additional evidence regarding the -15-

actor's intention, is insufficient evidence to convict a defendant of the offense of

‘felonious assault’ as defined by R.C. 2903.11(A)(2).” State v. Brooks, 44 Ohio St.3d

185, 542 N.E.2d 636, (1989), syllabus. On the other hand, if pointing a weapon

combined with a general threat is sufficient to establish the necessary intent to

commit felonious assault, then it is even more persuasive to prove felonious assault

by showing that the defendant actually used the weapon to seriously injure the victim,

and then threatened to do it again a mere few minutes later.

{¶34} The dissent in State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-

1147, contends that the facts of this case amount only to aggravated menacing, but

this theory was rejected in Green: “Defendant suggests that the only conviction that

the evidence could support in this case is aggravated menacing, in violation of R.C.

2903.21(A), * * *. We disagree, because the defendant, in making his threat along

with his actions, took a substantial step in a course of conduct apparently planned to

culminate in the commission of a crime.” Id. at 242, fn.2. In Green, the threat and

the action taken by the defendant were that of pointing a loaded and functioning rifle

at a policeman’s head, coupled with these threatening words: “If you don't have a

warrant get the fuck out of my house.” Id. at 239. The threat and action in this case

consist of the actual use of the firearm resulting in a gunshot wound to the neck; a

brief period of time intervening; then a threat to shoot the victim in the head along

with substantial proof that the gun was loaded, operable, and was hastily discarded

near the crime scene when the shooter fled. Once again, the facts in this case

appear stronger than those in Green, and in Green the conviction for felonious

assault was upheld. -16-

{¶35} This dissent appears to concede that there would be sufficient evidence

of felonious assault if the state had provided any evidence of what Helms’ was doing

with the gun at the time he made the threat. Given that circumstantial evidence is as

valid as direct testimonial evidence in proving any element of a crime, the record

contains more than sufficient, competent and credible circumstantial evidence that

Helms had the ability and intent to carry out his threat to shoot Kaluza in the head.

State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).

{¶36} The Helms dissent also contends that there is a due process problem in

relying on the evidence of Helms’ threat to kill Kaluza as proof of felonious assault

because that set of facts does not correspond to the prosecutor’s theory of the case

set forth in the opening and closing arguments. The issue in a review of allied

offenses, though, does not involve due process, but whether double jeopardy

occurred in sentencing a person twice based on the same set of facts. Whether or

not the prosecutor’s theory of the case as articulated in its opening and closing

remarks corresponds to the actual evidence presented is not under review when

examining the record for allied offenses. Obviously, opening and closing statements

are not evidence. “It is well settled that statements made by counsel in opening

statements and closing arguments are not evidence.” State v. Frazier, 73 Ohio St.3d

323, 338, 652 N.E.2d 1000 (1995). In reviewing a sentence for allied offenses, we

normally look at the entire record and review the entire set of facts and

circumstances as presented to the trier of fact. We do not exclude particular properly

admitted facts from our consideration simply because we believe the jury was paying

more attention to the prosecutor’s opening and closing remarks rather than the actual -17-

presentation of the evidence. The jury is free to match the facts presented at trial to

the elements of the crime as stated in the indictment. The indictment here does not

specify any facts regarding felonious assault except that Kaluza was the victim and

that it occurred on March 24, 2008. The bill of particulars does not provide any

further explanation about the details of felonious assault. There was no objection

filed regarding the felonious assault charge in the indictment or the bill of particulars.

There was no objection made to Kaluza’s testimony regarding Helms’ threat to shoot

him in the head. There was no clarification requested in the jury instructions about

felonious assault. We find nothing in the record that would limit our normal procedure

of viewing the entire record as part of the consideration in determining whether there

were allied offenses. Based on the record, Appellant committed a felonious assault

that is not an offense allied to any other crime in this case. Thus, the trial court

properly imposed a separate sentence for that crime.

{¶37} Turning now to the counts regarding complicity to aggravated robbery

and kidnapping, a similar analysis must be conducted. Aggravated robbery pursuant

to R.C. 2911.01(A)(1) is defined as:

{¶38} “(A) No person, in attempting or committing a theft offense, as defined

in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:

{¶39} “(1) Have a deadly weapon on or about the offender's person or under

the offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it[.]”

{¶40} Kidnapping is defined in R.C. 2905.01(A)(2) as: -18-

{¶41} “(A) No person, by force, threat, or deception, * * * shall remove

another from the place where the other person is found or restrain the liberty of the

other person, for any of the following purposes:

{¶42} “* * *

{¶43} “(2) To facilitate the commission of any felony or flight thereafter[.]”

{¶44} Once again, first we must question whether these two crimes can be

committed by the same conduct. The answer is yes. A robbery of a person, by its

very nature, involves, to some degree, holding that person by force to commit a

crime. Hence, it constitutes a type of kidnapping. It has been longstanding law in

Ohio, both before and after Rance, that the two crimes may be allied offenses. State

v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979).

{¶45} The second question is whether the offenses were committed with the

same conduct, i.e., was there was a single act committed with a single state of mind?

The answer here is no.

{¶46} The state established that the movement of Kaluza in his vehicle after

he was shot was prolonged, secretive and independent of the other offenses. The

kidnapping took place during the few minutes after Kaluza was shot. After the

shooting, when Kaluza was paralyzed, Helms went over to talk to Appellant for a

period of time. When he returned to Kaluza’s car, he briefly searched it, then pushed

the victim’s car onto a side street, where he searched for the deposit bag. One

witness testified that it took 90 seconds for Helms to push the car down the street.

Various witnesses established that Helms left Kaluza in the car, paralyzed, and

pushed the car with Kaluza in it to a more secluded area. Any restraint or asportation -19-

of a victim may constitute a separate offense of kidnapping if it was not necessary in

order to complete the robbery offense. State v. Gore, 131 Ohio App.3d 197, 127,

129-130, 722 N.E.2d 125 (1999). The robbery took place when Helms searched the

car for the deposit bag. The kidnapping took place when Helms left a helpless

Kaluza to talk to Appellant, then moved the car to a more secluded street. These are

two distinct factual events, and both of them can result in a criminal conviction and

sentence.

{¶47} In addition, there also appears to be a separate animus for both crimes,

and separate animus is another basis for finding that the crimes are not allied

offenses subject to merger. “Animus refers to the defendant's immediate criminal

motive, intent or state of mind.” Hooper, supra, ¶15, citing State v. Blankenship, 38

Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). When a kidnapping is committed

during another crime, there exists no separate animus “[w]here the restraint or

movement of the victim is merely incidental to a separate underlying crime.” Logan,

supra, at syllabus. However, “where the restraint is prolonged, the confinement is

secretive, or the movement is substantial so as to demonstrate a significance

independent of the other offense,” there is a separate animus as to each offense. Id.

Separate animus also exists if the restraint or movement of the victim substantially

increases the risk of harm to the victim. Id. In this case, the movement of Kaluza

was prolonged, secretive, substantial, and increased the risk of harm to the victim.

Therefore, the record contains evidence of separate animus and the two crimes are

not allied offenses subject to merger. -20-

{¶48} Appellant’s first assignment of error has partial merit, in that the state

has conceded error with respect to the gun specifications. Those four specifications

are merged and only one three-year prison term will be imposed. The remaining

aspects of the assignment of error are overruled.

ASSIGNMENT OF ERROR NO. 2

{¶49} “The trial court committed plain error when it failed to provide the jury

with an augmented instruction regarding its duty to unanimously find Ms. Gilbert

guilty of the offenses alleged in the indictment based on a particular set of facts for

each alleged crime, in violation of Ms. Gilbert’s Fifth, Sixth, and Fourteenth

Amendment rights under the United States Constitution, and Sections 10 and 16,

Article I of the Ohio Constitution. (Tr. 2279-2320).”

{¶50} Appellant argues that it was plain error for the trial court to fail to

provide a special instruction to the jury that it must unanimously agree to one

particular set of facts that constituted each offense in the indictment. Appellant

contends that the state presented two different versions of what may constitute an

attempted murder. Appellant submits that the initial shot to Kaluza's neck could have

been an attempted murder, and that the act of moving Kaluza to a more secluded

location could also have constituted an attempted murder. Appellant believes the

trial judge should have given an instruction that the jurors were required to agree on

one set of facts that resulted in the conviction for attempted murder. Appellant did

not object to the jury instructions and acknowledges that only plain error may be

raised at this point. -21-

{¶51} Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the trial court. Crim.R. 52(B). The

doctrine of plain error requires that there must be: (1) a deviation from a legal rule;

(2) that is obvious, and; (3) that affects the appellant's substantial rights. State v.

Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶9. Plain error is not present unless,

but for the error complained of, the outcome of the trial would have been different.

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the

syllabus.

{¶52} Appellant cites only one case in support, that of United States v. Gipson

(C.A.5, 1977), 553 F.2d 453. Appellant cites this case as if it were a Sixth Circuit

case, which would represent persuasive (but not binding) precedent in this Court, but

the case is actually out of the Fifth Circuit. In Gipson, the defendant was convicted

under a federal statute that prohibited a person from receiving, concealing, storing,

bartering, selling, or disposing of a stolen vehicle or aircraft, known to be stolen, that

had moved in interstate commerce. In response to a question from the jury, the trial

judge instructed the jurors that they need not agree on which of the acts enumerated

in the statute the defendant had violated as long as each juror found that he had

committed one of the acts. The jury convicted him and Gipson appealed, arguing

that his right to a unanimous verdict had been violated. The Fifth Circuit Court of

Appeals concluded that the judge's instruction violated the defendant's right to have

the jury decide unanimously which course of action the defendant had pursued. The

court held that the trial judge's instruction improperly permitted the jury to convict on

a single count without choosing between “two distinct conceptual groupings.” One -22-

grouping involved the “housing” of stolen goods (by receiving, concealing, and

storing the goods) and the other grouping involved the “marketing” of the stolen

goods (by bartering, selling, and disposing of them). Id., 553 F.2d at 458-459.

{¶53} Both the United States Supreme Court and the Fifth Circuit, itself, have

questioned the validity of Gipson. See Schad v. Arizona, 501 U.S. 624, 635, 111

S.Ct. 2491, 115 L.Ed.2d 555 (1991); United States v. Bolts, 558 F.2d 316 (C.A.5,

1977) (the Fifth Circuit limited its Gipson holding to cases in which the judge

specifically and expressly permitted a nonunanimous verdict in its jury instructions).

No other court follows the Gipson holding. This appeal does not involve a challenge

to a jury instruction that specifically permitted a nonunanimous verdict, but rather,

raises an argument that the facts of the case gave rise to the necessity of further jury

instructions. Appellant has no other support for her argument, and, as Gipson does

not support Appellant's argument, either, this assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

{¶54} “The trial court violated Ms. Gilbert’s rights to due process and a fair

trial when, in the absence of sufficient evidence, the trial court convicted Ms. Gilbert

of complicity to attempted murder with firearm specification, and complicity to

felonious assault with firearm specification, in violation of Ms. Gilbert’s Fifth, Sixth,

and Fourteenth Amendment rights under the United States Constitution, and

Sections 10 and 16, Article I of the Ohio Constitution. (Sept. 26, 2008, Sentencing

Entry; Tr. 1558-59, 1604-17, 1666-67, 1828-33, 2179-83, 2189-90, 2221).”

{¶55} Although Appellant's counsel at trial conceded her guilt on the charge of

complicity to robbery, counsel raised Crim.R. 29 motions for acquittal on the other -23-

charges based, in part, on the theory that she did not know that Helms would shoot

Kaluza. Appellant challenges the sufficiency of the evidence as to her mens rea for

kidnapping, felonious assault and attempted murder.

{¶56} Sufficiency is a term of art meaning that legal standard which is applied

to determine whether a case may go to the jury or whether evidence is legally

sufficient to support the jury verdict as a matter of law. Sufficiency is a test of

adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question

of law. State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). A conviction

based on legally insufficient evidence constitutes a denial of due process. State v.

Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), citing Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶57} Where there is substantial evidence on which the trier of fact has based

its verdict, a reviewing court abuses its discretion in substituting its judgment for that

of the jury as to the weight and sufficiency of the evidence. State v. Nicely, 39 Ohio

St.3d 147, 529 N.E.2d 1236 (1988). The weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of fact to determine. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Therefore, an appellate court

must view the evidence in a light most favorable to the prosecution, and determine

whether any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 547 N.E.2d

492 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶58} The complicity statute states that: "No person, acting with the kind of

culpability required for the commission of an offense, shall do any of the following: * * -24-

* (2) Aid or abet another in committing the offense." R.C. 2923.03(A). The person

committing complicity must share the criminal intent of the principal. State v. Moore,

7th Dist. No. 02 CA 152, 2004-Ohio-2320. An aider and abettor is not simply

someone who associates with the principal. State v. Prichard, 1st Dist. No. C-

941011 (Feb. 7, 1996). The aider and abettor must have "supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of

the crime, and that the defendant shared the criminal intent of the principal.” State v.

Johnson, supra, syllabus. The mens rea element of the crime can be inferred from

all the facts and circumstances of the case, and even from the criminal act itself. Id.

at 245; see also, State v. Cartellone, 3 Ohio App.3d 145, 148, 444 N.E.2d 68 (1981).

{¶59} “The law is well settled that when two or more people engage in a

course of criminal conduct and one does one part and the other another, each is

responsible for the acts of the other as though he had personally performed each of

the acts.” State v. Wynn, 131 Ohio App.3d 725, 729, 723 N.E.2d 627 (1998), citing

State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566 (1986).

{¶60} The facts of this case reveal that the crime was coordinated so that

Appellant would cause Kaluza to have an auto accident, after which Helms would

then rob him at gunpoint. It can certainly be inferred that Appellant knew a gun or

some other deadly weapon would be involved in the crime in order to induce Kaluza

into turning over his restaurant deposit. She purchased .380 caliber ammunition prior

to the robbery. The receipt for the purchase of the bullets was entered into evidence.

The bullets were found in her car after the robbery. Whether or not Appellant

specifically knew the gun would actually be fired is not a defense, because she is -25-

responsible for whatever Helms did with the gun once it became part of the crime.

“The mere act of driving away from the scene of a shooting perpetrated by a

passenger of a vehicle has been held to be sufficient to uphold a conviction based on

complicity where the circumstances show the driver knew shots were being fired by

the passenger.” State v. Garner, 10th Dist. No. 07AP-474, 2008-Ohio-944, ¶21. By

law, Appellant is treated as if she herself shot Kaluza, and the act of firing the shot

directly at Kaluza through a car window in order to facilitate the robbery is evidence

enough to infer criminal intent to commit attempted murder. This assignment of error

is overruled.

ASSIGNMENT OF ERROR NO. 4

{¶61} “The trial court committed reversible error when it admitted Ms. Gilbert’s

statements into evidence against her at trial, in violation of Ms. Gilbert’s Fifth, Sixth,

and Fourteenth Amendment rights under the United States Constitution, and

Sections 10 and 16, Article I of the Ohio Constitution. (Aug. 8, 2008, Motion to

Suppress; Aug. 22, 2008, Suppression Hearing Tr.; Aug. 28, 2008, Judgment Entry;

Miranda Waiver, Aug. 22, 2008, Suppression Hearing Tr., Ex. 1; Hattie Gilbert

Interview DVD, Aug. 22, 2008, Suppression Hearing Tr., Ex. 2; Tr. 1731-45, 1828-

33).”

{¶62} Here, Appellant contends that the trial court should have suppressed

statements she made to the Youngstown police at her home and further statements

she made after she was arrested. Thus, she is challenging the ruling on her motion

to suppress. -26-

{¶63} When reviewing a motion to suppress, an appellate court must

determine whether the trial court's findings are supported by competent, credible

evidence. State v. Lloyd, 126 Ohio App.3d 95, 100, 709 N.E.2d 913 (1998). “In a

hearing on a motion to suppress evidence, the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the

credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321

(1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (1994).

A reviewing court must accept the trial court's factual findings and the trial court's

assessment of witness credibility, but must independently determine as a matter of

law whether the trial court met the applicable legal standard. State v. Sharpe, 7th

Dist. No. 99CA510 (June 30, 2000).

{¶64} Appellant's first issue is with the statements she made while in her

home. Detective Mark Milstead was conducting a search for automobiles similar to

the one used in the crime, and he visited Appellant's residence as part of his inquiry.

He asked her four questions while at her home: if she knew why he had come to talk

to her; if she had worn a pink coat at the time of the accident; if she still had the coat;

and if she would give the coat to him. She admitted that she was involved in a car

accident with Kaluza. She admitted she had the coat, and she retrieved the coat for

Milstead. Appellant states that she was not given Miranda warnings prior to this

questioning. There does not seem to be any dispute about this point. Appellant

argues that Milstead knew he was going to arrest her when he asked her the

questions. Appellant implies that asking questions in her residence with the possible -27-

intent to arrest based on the answers to these questions is the equivalent to actual

custodial interrogation.

{¶65} In Miranda v. Arizona, the United States Supreme Court developed

procedural safeguards to protect an individual's Fifth Amendment right against self-

incrimination during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966). A suspect must be in custody and subject to

interrogation before police are required to give Miranda warnings. State v. Gumm, 73

Ohio St.3d 413, 429, 653 N.E.2d 253 (1995). A person is in custody for purposes of

a Miranda analysis when there has been a formal arrest or when a person's

movement is so restrained that a reasonable person would believe that he or she is

under arrest. State v. Petitjean, 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2000);

Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). A

court must look at the totality of the circumstances in order to determine whether an

individual is in custody at any given time. California v. Beheler, 463 U.S. 1121, 1125,

103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

{¶66} This Court has used a ten factor test to help decide whether a suspect

is in custody for purposes of a Miranda analysis:

{¶67} “1) What was the location where the questioning took place--i.e., was

the defendant comfortable and in a place a person would normally feel free to leave?

For example, the defendant might be at home as opposed to being in the more

restrictive environment of a police station; -28-

{¶68} “2) Was the defendant a suspect at the time the interview began

(bearing in mind that Miranda warnings are not required simply because the

investigation has focused);

{¶69} “3) Was the defendant's freedom to leave restricted in any way;

{¶70} “4) Was the defendant handcuffed or told he was under arrest;

{¶71} “5) Were threats made during the interrogation;

{¶72} “6) Was the defendant physically intimidated during the interrogation;

{¶73} “7) Did the police verbally dominate the interrogation;

{¶74} “8) What was the defendant's purpose for being at the place where

questioning took place? For example, the defendant might be at a hospital for

treatment instead of being brought to the location for questioning;

{¶75} “9) Were neutral parties present at any point during the questioning;

{¶76} “10) Did police take any action to overpower, trick, or coerce the

defendant into making a statement.” State v. Tate, 7th Dist. No. 07 MA 130, 2008-

Ohio-3245, ¶46-66.

{¶77} In this case, Appellant was in her own home, she was a suspect in the

case, her freedom of movement was not restricted, she was not handcuffed or told

she was under arrest, there were no threats made, there was no physical or verbal

intimidation, Appellant was not at her house simply to be questioned by the police,

Appellant's daughter was present during the questioning, and Appellant was not

tricked or coerced into making a statement. Other than the fact that she was a

suspect while the questioning took place, the overwhelming totality of the

circumstances indicates that she was not in custody. -29-

{¶78} As to the statements she gave to police at the station, the record

reflects that Appellant did not raise any challenges to those statements in her motion

to suppress. The record also shows that she was read her Miranda rights and that

she waived those rights in writing prior to making the statements. (Trial Tr., p. 1828;

State’s Exh. 1.) She agreed to any questions from the police. She stated that an

unknown person asked her to participate in the crime to run someone off the road so

that a robbery could be committed. (Trial Tr., p. 1828.) She subsequently changed

her story to admit that she was part of a plan to rob Kaluza of his daily deposit. (Trial

Tr., p. 1829.) She said she watched Kaluza for weeks, examining the details of his

daily routine in making bank deposits. She admitted that she planned to obtain a gun

and that she purchased bullets. (Trial Tr., pp. 1829-1830.)

{¶79} Appellant now raises something she said in her videotaped confession

that she believes triggered her Miranda rights even after she signed a waiver of those

rights. She argues that she said “I don't want to talk about this,” and that this

statement was a re-invocation of her right to remain silent. There is no transcription

of this confession, but a DVD of the interview is attached to the transcript of the

August 22, 2008, motion to suppress hearing. The recording is dated March 28,

2008, and at 10:55:57 in the recording she interrupts a fabricated story she is telling

about some unknown person calling her on her cell phone and says very softly “I

don't want to talk about this.” It is not clear from the DVD whether she is repeating

something from the imaginary phone call or whether this is a statement directed to

the police officer in the room. A voice is then heard to say, “Hattie, the only thing that

is going to save you from years of prison is you being honest.” Appellant then -30-

continued with her statement. Appellant contends that the police should have

recognized that she was refusing to answer any more questions, and that they

ignored her right to remain silent when they failed to cut off further questioning.

{¶80} Appellant has waived all but plain error because she did not raise this

constitutional issue in a motion to suppress. State v. Roskovich, 7th Dist. No. 04 BE

37, 2005-Ohio-2719, ¶13, citing State v. Peagler, 76 Ohio St.3d 496, 500, 668 N.E.2d

489 (1996). Crim.R. 12(C)(3) requires a defendant to file a motion to suppress in

order to challenge any statements that were obtained illegally. A motion to suppress

is the proper vehicle for raising challenges based on violations of the Fourth, Fifth

and Sixth Amendments. State v. French, 72 Ohio St. 3d 446, 449, 650 N.E.2d 887

(1995). By failing to file a motion to suppress challenging the statements made at the

police station, Appellant has deprived the state from having the opportunity to

respond and present rebuttal evidence to the alleged error.

{¶81} Even though the alleged error has been waived, the state does attempt

to explain what happened at the interview in which Appellant confessed to her

involvement in the crime. The record contains a signed waiver of her Miranda rights

prior to Appellant’s interview. The error raised for the first time on appeal is that

Appellant attempted to cut off questioning while she was being interviewed, but that

the police continued to question her. The state accurately responds that any

invocation of the right to remain silent must be done unambiguously. State v.

Murphy, 91 Ohio St.3d 516 (2001), citing Michigan v. Mosely, 423 U.S. 96, 104, 96

S.Ct. 321, 46 L.Ed.2d 313 (1975). The defendant cannot invoke the right to remain

silent by simply being silent. Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, -31-

176 L.Ed.2d 1098 (2010). Further, if the accused makes an ambiguous statement

regarding the right to cut off questioning, the police are not required to end the

interrogation or ask clarifying questions about the statement. Id., 130 S.Ct at 2260.

In Murphy, the defendant's statement that “I'm ready to quit talking and I'm ready to

go home, too" was not deemed to be an unambiguous or unequivocal invocation of

the right to cut off questioning. (Emphasis omitted.) Murphy at 520-521.

{¶82} Similarly, Appellant’s statement is ambiguous. It is not clear if she is

making a statement at all because she is relating a story (that she admits is

completely false a few seconds later) about a phone call with an alleged co-

conspirator. Also, it is not clear what “this” refers to when she says “I don't want to

talk about this.” If she is referring to the fabricated story about the phone call, the

police did heed her request and did not continue asking her about the phone call.

The First District Court of Appeals recently held that the statement “that's all I can let

you know right there as far as yesterday” was ambiguous and did not invoke the right

to cut off questioning. State v. Strong, 1st Dist. Nos. C-100484, C-100486, 2011-

Ohio-4947, ¶48. The Eleventh District Court of Appeals held that the statements

“[y]ou got what you wanted. Okay?” and “I'm done" did not unambiguously invoke

the right to stop questioning. State v. Griffith, 11th Dist. No. 2001-T-0136, 2003-

Ohio-6980, ¶32-35. Based on these examples, and on the context of the statement

made by Appellant, the record does not indicate a clear, unequivocal, unambiguous

invocation of her right to end police questioning.

{¶83} Appellant's fourth assignment of error is overruled. -32-

ASSIGNMENT OF ERROR NO. 5

{¶84} “Ms. Gilbert was denied her right to confront the evidence against her at

trial, in violation of her Fifth, Sixth, and Fourteenth Amendment rights under the

United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

(Tr. 1936-37, 1945-53).”

{¶85} Appellant argues that the witness Ashlinn Sykes related a statement

made by codefendant Helms implicating Appellant in the crimes. Appellant is now

raising for the first time a Sixth Amendment claim that she was denied the right to

confront the witnesses against her. Appellant failed to object to this testimony at trial.

Therefore, it is reviewed only for plain error.

{¶86} The testimony in question is as follows:

{¶87} “Q. Did he at some point describe where he was going after breakfast?

{¶88} “A. No. He said he had to go get Hattie, and there was some things

that they had to do. That was it.” (Trial Tr., p. 1952.)

{¶89} The Sixth Amendment to the United States Constitution guarantees that

a criminal defendant shall have the right to confront the witnesses against him. The

admission into evidence of a confession of a codefendant who is not testifying at trial

is inadmissible under the Sixth Amendment. Bruton v. United States, 391 U.S. 123,

88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). “In Bruton, the Supreme Court held that in a

joint trial of two defendants, a confession of one co-defendant who did not testify

could not be admitted into evidence even with a limiting instruction that the

confession could only be used against the confessing defendant. The rationale of

Bruton was that the introduction of a potentially unreliable confession of one -33-

defendant which implicates another defendant without being subject to cross-

examination deprives the latter defendant of his right to confrontation guaranteed by

the Sixth Amendment.” State v. Moritz, 63 Ohio St.2d 150, 153, 407 N.E.2d 1268

(1980). However, Bruton errors are reviewed under a harmless error analysis: “Our

conclusion that appellant was implicated in these two instances contrary to his right

of confrontation does not, however, mean that his conviction is to be automatically

reversed. The line of cases following Bruton have firmly established that an error of

this sort may be harmless.” Id. at 155-156.

{¶90} Appellant’s own attorney admitted in his opening statement to the jury

that she was involved in the robbery, that she planned the robbery, and that she was

guilty of robbery. (Trial Tr., p. 1558.) Her confessions to the police also confirmed

her involvement in the crimes. The physical evidence established her connection to

the crimes, including the box of bullets she purchased and Helms’ wallet which were

found in her car, and the pink coat she wore which was identified by witness

Johnson. She admitted to staking out Kaluza at his restaurant to learn his banking

habits. She admitted she caused the car accident with Kaluza. It is difficult to see

how Ms. Sykes’ testimony added anything material to the overwhelming evidence

establishing Appellant’s involvement in the crime. This assignment of error is

overruled.

ASSIGNMENT OF ERROR NO. 6

{¶91} “The trial court abused its discretion and denied Ms. Gilbert her right to

a fair trial by an impartial jury when it overruled her motion for a change of venue, in

violation of Ms. Gilbert’s rights under the Fifth, Sixth, and Fourteenth Amendments to -34-

the United States Constitution, and Sections 10 and 16, Article I of the Ohio

Constitution. (Sept. 11, 2008, Motion to Join Motion to Change Venue; Sept. 15,

2008 Judgment Entry; Sept. 17, 2009, Verdict Forms; Tr. 40-1167, 1265-67, 1276-77,

1407-12, 1420-22, 1434-36, 1438-41, 1460).”

{¶92} Appellant argues that the court should have granted the joint motion for

change of venue due to extensive prejudicial pretrial publicity. She argues that the

extensive pretrial publicity of the case made the selection of an impartial jury

impossible. A motion for change of venue is governed by Crim.R. 18(B), which

provides that “the court may transfer an action * * * when it appears that a fair and

impartial trial cannot be held in the court in which the action is pending.” A trial court

has broad discretion in its ruling on a motion for change of venue. State v. McKnight,

107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶60. A reviewing court must

therefore uphold the trial court's decision on the motion absent a clear showing of an

abuse of discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d

637, ¶38. An abuse of discretion connotes more than an error of law or judgment; it

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v.

Adams, 62 Ohio St.2d 151, 157-158, 16 O.O.3d 169, 404 N.E.2d 144 (1980).

{¶93} Appellant argues that the pretrial publicity in this case is similar to that

which occurred in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600

(1966). In Sheppard, there was extensive pretrial publicity about the defendant's

refusal to take a lie detector test, and the stories included details about the

investigation and opinions as to why the defendant was guilty, the defendant's affair

with another woman and ensuing theories about the defendant's murder motive. -35-

During the trial, the trial court allowed representatives of the media to dominate the

seating area of the courtroom, allowed the media to photograph the jury on a daily

basis, and did little to regulate their conduct. Id. at 343-345, 358-359. Although the

Supreme Court noted that trial court's failure to take precautions against the jury's

exposure to enormous pretrial publicity was not enough alone to constitute a due

process failure, they found that the trial court's subsequent acquiescence to the

media's dominance of the courtroom and its subversion of the entire trial process

required the reversal of Sheppard's habeas denial. Id. at 355-356, 363.

{¶94} Appellant’s motion for change of venue included approximately 35

articles from newspaper and internet sources regarding the case, ranging from

lengthy detailed articles to single-line references. Earlier articles detail the

occurrence of the crime, the investigation, and the arrest and bond hearings of both

Helms and Appellant, and discussion that a motion to suppress was filed and its

outcome. Almost all of the later articles discuss the community support for the victim

and fundraising for his medical bills. A supplement to the motion for change of venue

included a DVD of television news coverage of the accident from a WRTA bus

security camera. It is not clear if this DVD contained material that was broadcast or

made available to the general public. Appellant asserts that this extensive pre-trial

media coverage of the case prevented her ability to secure a fair trial.

{¶95} The media coverage in this case is not equivalent to that which

occurred in Sheppard. The mere existence of pretrial publicity is not a basis for

granting a change of venue. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665,

850 N.E.2d 1168, ¶117. By itself, even pervasive adverse pretrial publicity “does not -36-

inevitably lead to an unfair trial.” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, 911 N.E.2d 242, ¶58. The Ohio Supreme Court has held that a “careful and

searching voir dire provides the best test of whether prejudicial pretrial publicity has

prevented obtaining a fair and impartial jury from the locality.” State v. Yarbrough,

104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶61, quoting State v. Landrum,

53 Ohio St.3d 107, 117, 559 N.E.2d 710 (1990).

{¶96} In order to successfully claim that pretrial publicity has denied a

defendant of a fair trial, he must show that one or more jurors were actually biased.

Yarbrough at ¶61. Only in rare cases may prejudice be presumed. State v.

Lundgren, 73 Ohio St.3d 474, 479, 653 N.E.2d 304 (1995).

{¶97} The record shows that the voir dire on pretrial publicity for this case was

comprehensive, and constitutes almost two thirds of the 2333-page trial transcript.

First, the trial court asked the prospective jurors whether any of them knew about the

case through firsthand information, interactions within the community, or media

coverage. Only five of the twelve impaneled jurors fell within this group, and the

remaining seven who were eventually impaneled stated that they had no knowledge

of the case. The trial court then conducted an extensive sequestered individual voir

dire of all prospective jurors who had indicated any familiarity with the case. The

prospective jurors were asked about the extent of their knowledge of the case, and

asked whether they could set aside what they had heard and decide the case solely

on the evidence presented at trial. Counsel was able to question and disqualify

prospective jurors regarding their exposure to pretrial publicity. Following this -37-

questioning, the trial court excused a number of potential jurors who had formed fixed

opinions due to pretrial publicity or were otherwise unsuitable.

{¶98} Of the five impaneled jurors who indicated some prior knowledge of the

case, none knew or recognized the names of the defendants. They could not name

the victim, but four recognized his name when it was told to them. All five heard that

the victim worked for or was a manager of a KFC restaurant, and that the victim had

been critically injured. Some of the jurors had heard that there was a robbery and an

attempted murder by shooting. One juror had heard that a car crash and weapon

were used. All five of these jurors stated that they had not formed any opinion as to

the guilt or innocence of the defendants, and could be fair and impartial to both sides.

They all stated that they could set aside any information about the case that they had

previously been exposed to, and would only take into consideration the evidence

presented at trial. Appellant’s counsel passed on all five of these jurors for cause.

{¶99} Appellant argues that there was racial bias in the jury. Appellant points

out that there was a discovery during voir dire that someone had written a racial

epithet on the men’s bathroom wall in the courthouse. There was nothing in the

record indicating that any of the impaneled jurors wrote or even observed the graffiti

in the men's restroom. Appellant has not provided any evidence from the record to

imply that any one of the jurors who was in fact impaneled was “actually biased” as

required by Yarbrough.

{¶100} If the defense does not challenge any of the impaneled jurors for

cause due to pretrial publicity, the absence of challenges indicates that the defense

“was not particularly troubled by the jury's exposure to pretrial publicity.” McKnight, -38-

supra, at ¶63, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817

N.E.2d 29, at ¶52. Defense counsel made repeated arguments regarding the

prejudicial effect of pretrial publicity during the individual voir dire on the specific

subject of publicity. Yet, counsel made no such argument for the five jurors that were

eventually selected, and passed on excluding those jurors when given the

opportunity to object based on bias from knowledge of the case. This undermines

any presumptions of bias based on these five jurors' prior knowledge of the case.

{¶101} The media's presence in this case was not so pervasive as to per se

deny Appellant a fair trial, and the comprehensive voir dire process resulted in no

example of bias on the part of any juror who was actually impaneled. Appellant's

sixth assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 7

{¶102} “The trial court abused its discretion when it sentenced Ms. Gilbert to

maximum, consecutive terms of imprisonment on all counts in the indictment, in

violation of Ohio Revised Code Sections 2929.11 and 2929.12, and in violation of

Ms. Gilbert’s rights under the Fourteenth Amendment to the United States

Constitution, and Section 16, Article I of the Ohio Constitution. (Sept. 26, 2008,

Sentencing Entry; Sentencing Entry Tr. 10-11, 14).”

{¶103} In this assignment of error, Appellant argues that the trial court

abused its discretion in imposing maximum consecutive sentences. Appellate courts

review felony sentences using a two-fold analysis. “First, they must examine the

sentencing court's compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to -39-

law. If this first prong is satisfied, the trial court's decision shall be reviewed under an

abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶4 (O'Connor, J., plurality opinion), citing State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

{¶104} A sentencing court must consider the principles and purposes of

sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.

2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38. The sentencing

court need not make findings regarding these statutes. We have held that a silent

record raises the rebuttable presumption that the sentencing court considered the

statutory sentencing criteria. State v. James, 7th Dist. No.07CO47, 2009-Ohio-4392,

¶50. Only if the record affirmatively shows that the trial court failed to consider the

principles and purposes of sentencing will a sentence be reversed on this basis,

unless the sentence is strikingly inconsistent with relevant considerations. Id.

{¶105} Appellant does not argue that the sentence is contrary to law, but only

that it constitutes an abuse of discretion. An abuse of discretion means more than an

error of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

Thus, in the felony sentencing context, “[a]n abuse of discretion can be found if the

sentencing court unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and

R.C. 2929.12.” State v. Heverly, 7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34.

Although a trial court was formerly required to engage in detailed judicial factfinding

in order to justify imposing maximum or consecutive sentences, this is no longer the

case. Foster, supra, paragraph seven of the syllabus. The decision to impose -40-

maximum or consecutive sentences is simply part of the trial court's overall discretion

in issuing a felony sentence and is no longer tied to mandatory factfinding provisions.

{¶106} Appellant claims that she played only a limited role in the crime and

that she did not know that Helms would actually use the gun. She also states that

she had no prior criminal record, had not been previously adjudicated a juvenile

delinquent, had no history of drug or alcohol abuse, and showed genuine remorse for

her actions. She contends that she in unlikely to reoffend. She believes that these

factors should have resulted in less than maximum consecutive sentences.

{¶107} The record reveals that Appellant was extensively involved in the

planning of this crime. She observed Kaluza for many weeks to determine how and

when to commit the crime. She purchased the bullets for the gun. Helms’ wallet with

his driver’s license and his cell phone were found in her car. She caused the

accident that allowed Helms to approach Kaluza and shoot him. She knew the

purpose of her causing an accident was to commit an armed robbery. She saw

Kaluza get shot. She stayed at the crime scene to talk to Helms while Kaluza sat,

bleeding and paralyzed, in his car. This was a cold, calculated crime involving a

firearm that was made possible in large part by Appellant’s actions. The court was

within its discretion to treat both Helms and Appellant as equally guilty and equally

deserving of punishment in this case. (9/23/08 Tr., p. 12.) The trial judge did not

believe that Appellant had any genuine remorse. (9/23/08 Tr., p. 14.) It is true that

some of the seriousness factors in R.C. 2929.12 do weigh in Appellant’s favor,

including her lack of a prior criminal record. The existence of one or more mitigating

factors, though, does not preclude the court from imposing maximum consecutive -41-

sentences. The seriousness and recidivism factors are for the court’s consideration,

but ultimately, the court retains the discretion to impose a sentence that it believes is

most appropriate. Based on the factors cited by the trial court, and on the record of

this case, there was no abuse of discretion in imposing maximum consecutive

sentences. This assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 8

{¶108} “Defense counsel rendered ineffective assistance of counsel in

violation of Ms. Gilbert’s rights under the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution, and Sections 10 and 16, Article I of the Ohio

Constitution. (Hattie Gilbert Interview DVD, Aug. 22, 2008 Suppression Hearing Tr.,

Ex. 2; Tr. 1828-33, 1947-53, 1976).”

{¶109} Appellant contends that her trial counsel was ineffective for failing to

challenge the confession she made to the police on March 28, 2008. During the

interview she stated “I don’t want to talk about this.” Appellant argues that this

statement was enough to cut off further questioning, and that her attorney should

have tried to exclude the remainder of the confession on that basis. The error is

raised in this appeal, but it is raised as plain error rather than preserved error.

Appellant also argues that her counsel should have objected to the testimony of

Ashlinn Sykes. Ms. Sykes testified regarding a statement made by Helms that

inculpated Appellant. This error was also raised on appeal as plain error.

{¶110} We review a claim of ineffective assistance of counsel under the two-

part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). First, it must be shown that counsel's performance has fallen -42-

below an objective standard of reasonable representation. Second, the defendant

must establish that prejudice arose from the lawyer's deficient performance. State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To show prejudice, a defendant

must prove that, but for his lawyer's errors, a reasonable probability exists that the

result of the proceedings would have been different. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694. Prejudice may not be assumed but must be affirmatively shown. See State

v. McGee, 7th Dist. No. 07MA137, 2009-Ohio-6397, ¶13.

{¶111} When considering an ineffective assistance of counsel claim, the

reviewing court should not consider what, in hindsight, may have been a more

appropriate course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656

N.E.2d 643 (1995). Our review of counsel's action is highly deferential as there is a

strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance. Id.

{¶112} Trial counsel's failure to file a motion to suppress does not necessarily

constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378,

389, 721 N.E.2d 52 (2000). However, the failure to file a motion to suppress may

constitute ineffective assistance of counsel when the record demonstrates that the

motion would have been granted. State v. Barnett, 7th Dist. No. 06-JE-23, 2008-

Ohio-1546, ¶31.

{¶113} Appellant cannot demonstrate that a motion to suppress the

confession at the police station would have been granted. As earlier discussed, it is

not at all clear that Appellant’s statement was an attempt to cut off questioning, and -43-

she certainly did not assert her right to cut off questioning in an unambiguous and

unequivocal manner, as required by State v. Murphy and Michigan v. Mosely, supra.

She also showed no hesitation in continuing with the questioning after she made the

statement. Further, the confession was only one part of a wide array of evidence

against Appellant. She herself had told the police at her home that she was involved

in a car accident with the victim, and she produced the pink coat she wore that had

been identified by witnesses and in a WRTA video. Her car was also indentified in

the video. The type of bullets used in the crime were found in her car, along with

Helms’ wallet and driver’s license. The receipt that was generated when she

purchased the bullets was also introduced as evidence. The confession did add

details as to the extent of her involvement in planning the crime, but it was by no

means the only evidence against her. It is not apparent that the outcome of the case

would have been different had the confession been excluded.

{¶114} Regarding the failure to object to Ms. Sykes’ testimony, once again

Appellant cannot show any prejudice. At most, the statement of Ms. Sykes (in which

she repeated a statement from Helms that “he had to go get Hattie, and there was

some things that they had to do”) showed that Appellant knew Helms and may have

had a connection to the crime. Many other aspects of the evidence established

these two points as well and did it more effectively. Her own attorney conceded in

his opening statement that Appellant was guilty of robbery: “The evidence will show

that Hattie Gilbert planned the robbery.” (Trial Tr., p. 1558.) She herself told the

police that she was at the crime scene. Ms. Sykes did not add any material evidence

to the case when she related the statement made by Helms. Without a showing of -44-

prejudice, a defendant cannot prove ineffective assistance of counsel, and prejudice

means that the outcome of the case would have been different. The outcome of this

case would not have been different had counsel objected to Ms. Sykes’ statement.

This assignment of error is overruled.

Conclusions

{¶115} The only reversible error in this case is the error that has been

conceded by the state. The state agrees that the firearm specifications should have

merged, and we hereby remand to the trial court to correct the sentence accordingly.

We overrule the remaining assignments of error. Appellant has not shown that there

were allied offenses that should have been merged. She did not establish any error

in the jury instructions. The evidence establishes her complicity with all aspects of

the crime, including the use of the gun. There is no reversible error with respect to

statements she made to the police both before and after arrest. A statement made

by witness Sykes should likely have been stricken on Sixth Amendment grounds, but

there was no prejudice caused by the statement. Appellant did not establish error in

the court’s decision to overrule a motion to change venue. The maximum

consecutive sentences were within the discretion of the trial court. Finally, Appellant

did not prove ineffective assistance of trial counsel.

{¶116} The judgment of the trial court as to Appellant’s convictions and

sentences for complicity to attempted murder, complicity to felonious assault,

complicity to aggravated robbery, complicity to kidnapping, are affirmed. The

judgment of the trial court regarding the imposition of four consecutive prison terms

for four firearm specifications is reversed. The case is remanded to the trial court to -45-

correct the sentence so that the four firearm specifications are merged and only one

three-year prison term is imposed for the firearm specifications.

Donofrio, J., concurs.

Vukovich, J., concurs.