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State v. Castle

Court of Appeals of Ohio, Seventh District, Mahoning

March 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
NICHOLAS CASTLE DEFENDANT-APPELLANT

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

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Anthony Farris

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          WAITE, J.

         {¶1} Appellant Nicholas Castle appeals his December 1, 2014 conviction and sentence on a charge of receiving stolen property. Appellant contends that the trial court erroneously instructed the jury on receiving stolen property as it is not a lesser-included offense of robbery. He also argues that the trial court erroneously denied his motion for a mistrial after the prosecutor made comments about Appellant's silence and failure to present evidence at trial during the prosecutor's closing arguments. As to his sentence, he argues that the trial court failed to make the requisite R.C. 2929.14(C) findings before imposing a consecutive sentence. The state confesses judgment on the sentencing issue. For the reasons provided, Appellant's arguments regarding his conviction are without merit and his conviction is affirmed. As the trial court failed to consider the R.C. 2929.14(C) factors, Appellant's sentence is vacated in part and remanded for limited resentencing consistent with this Court's Opinion.

         Factual and Procedural History

         {¶2} On February 2, 2012, a man called the WalGreens pharmacy in Boardman, Ohio and informed the pharmacist that he was experiencing withdrawal symptoms. He ordered her to gather all of the store's Oxycontin bottles, place them in a bag and to put the bag in the pharmacy's drive-through drawer. He advised her that he was in the store and had a gun. The pharmacist looked around but did not see anyone talking on a phone or carrying a gun. Regardless, she complied with his order and began removing bottles from the safe. While she began to collect the bottles, her manager walked into the pharmacy area. The caller warned the pharmacist: "[D]on't tell the red head anything." (11/10/14 Tr. Vol. I, p. 218.) The manager had red hair.

         {¶3} The pharmacist was nervous and accidentally substituted Oxycondone for the Oxycontin requested, but gathered 10-15 bottles of the drug. The bottles were the original manufacturer's bottle, not the smaller pharmacy bottles typically given to a customer. The caller told her that once she placed the bag into the drawer, someone would give her another list of drugs to gather. She complied and placed the bag in the drive-through drawer and turned around to wait for the caller's next demand. When she realized the caller was no longer on the line, she turned and saw that the bag had been removed from the drawer, but when she visually scanned the area no one was in sight. She explained the situation to the manager and the police were called. Without any physical evidence to collect at the scene, the police viewed the security camera footage and saw only shadows of the person who removed the bag from the drawer.

         {¶4} Around 11:00 a.m. the next day, a man who lived a few blocks from the WalGreens called police and informed them that he found several pill bottles scattered in his yard. Boardman police arrived and collected fourteen empty bottles from the yard. The bottles, which were manufacturer bottles, were sent to the Ohio Bureau of Criminal Investigations ("BCI"). Out of the fourteen bottles, two revealed a major partial DNA profile which was entered into CODIS. The CODIS search revealed an apparent match with Appellant's profile. The police located Appellant in Columbus and obtained a warrant for his DNA. A comparison of Appellant's DNA and the DNA found on the bottles confirmed the CODIS match. On June 12, 2014, Appellant was indicted on one count of robbery, a felony of the second degree in violation of R.C. 2911.02(A)(2), (B).

         {¶5} At the close of trial, the state requested a jury instruction on receiving stolen property. The defense objected, arguing that the crime of receiving stolen property is not a lesser-included offense of robbery. The trial court overruled the defense's objection and instructed the jury on receiving stolen property. The jury found Appellant not guilty of robbery but guilty of receiving stolen property. Appellant was sentenced to eighteen months of incarceration. The trial court ordered the sentence run consecutively to a four-year term Appellant was serving in Franklin County. Appellant timely appeals his conviction and sentence.

         ASSIGNMENT OF ERROR NO. 1

         The Trial Court committed prejudicial error when it instructed the jury to consider the charge of Receiving Stolen Property because it is not a lesser included offense of Robbery.

         {¶6} Appellant contends that the trial court improperly instructed the jury on receiving stolen property. Appellant argues that robbery does not contain an element requiring that the defendant received, retained, or disposed of the property of another. Hence, Appellant concludes that the crime of receiving stolen property cannot be a lesser offense of robbery. As to prejudice, Appellant states that because he was charged with robbery but solely convicted of receiving stolen property, he is entitled to reversal and a complete acquittal.

          {¶7} In response, the state asserts that the only issue before this Court is whether robbery, as statutorily defined, can be committed without also committing the offense of receiving stolen property, as statutorily defined. The state explains that receiving stolen property is statutorily defined as a theft offense that must be committed before an offender can be convicted of robbery. Thus, the state concludes that robbery cannot be committed without also committing the offense of receiving stolen property.

         {¶8} The test of whether one offense is a lesser-included offense of another originated in State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988). According to Deem,

An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is ...

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