State v. Flanik

[Cite as State v. Flanik, 2024-Ohio-1689.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113145

v. :

JULIA FLANIK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 2, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-22-674806-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Dominic Neville, Assistant Prosecuting

Attorney, for appellee.

Jonathan N. Garver, for appellant.

SEAN C. GALLAGHER, J.:

Appellant Julia Flanik (“appellant”) appeals her conviction and

sentence in this case. Upon review, we affirm.

On October 27, 2022, appellant was indicted under a multi-count

indictment along with a codefendant, Dashon Harris. The case proceeded to a jury

trial for both appellant and Harris. The victim, who is appellant’s mother, testified

in the matter, as did other witnesses for the state.

The victim testified that appellant and Harris have a child together.

For a period, they resided with the victim. Eventually, they moved to their own

apartment. Appellant worked, but Harris did not. At times, the victim willingly

provided appellant and Harris with money.

On September 25, 2022, appellant sent a text to the victim inquiring

about when the victim was getting paid. After a brief exchange of texts, the victim

stated, “[s]ee you Thursday” and planned for Harris to come and pick up money

from her then. On Thursday, September 29, 2022, Harris arrived at the victim’s

home. The victim already had withdrawn money and was not planning to visit the

ATM that day. The victim testified that she gave Harris “a couple hundred dollars

and 40 [dollars],” but it was not enough for him. Harris demanded more money,

broke the victim’s television, struck the victim in the face, threatened the victim, and

put a gun to the victim’s mouth. The victim testified she did not have any more

money and needed to save her money for rent and her bills.

Appellant, who was not present in the victim’s home during the

assault, was outside in the car with her child. Harris made the victim go with him to

the bank, and they were driven there by appellant. The victim testified she was

afraid of Harris, and she did not want anything to happen to appellant, who is her

daughter. When they arrived at the bank, appellant used the victim’s bank card to

withdraw money from the ATM. Photographs and video evidence depicted

appellant as appearing calm when making the withdrawal. Appellant then drove the

victim home, and the victim was dropped off in the street.

The victim went to work where the injuries to her face were noticed

by others. The police were called, and the victim told the police what happened. An

officer testified that the victim was extremely upset. The victim also went to the

bank later that day to set up a new account because her account had been

compromised.

Other testimony and evidence were provided in the matter, which this

court has reviewed.

The trial court granted appellant’s Crim.R. 29 motion for acquittal as

to Count 4 for endangering children. Only Harris was charged under Count 2 with

felonious assault. Appellant was found guilty of Count 1 for aggravated robbery, a

felony of the first degree in violation of R.C. 2911.01(A)(1), and guilty of Count 3 for

abduction, a felony of the third degree in violation of R.C. 2905.02(A)(1), along with

the accompanying three-year firearm specification and forfeiture of a weapon

specification on each of those counts. Appellant was found not guilty of the

accompanying one-year firearm specification on each of those counts.

The trial court found Counts 1 and 3 to be allied offenses of similar

import, and the state elected to proceed with sentencing on Count 1. The trial court

sentenced appellant to three years on each of the three-year firearm specifications

for Counts 1 and 3, for a total of six years, to be served prior to and consecutive to an

indefinite prison term of four to six years on the base charge on Count 1.

Appellant timely filed this appeal. She raises nine assignments of

error for review.

Under the first assignment of error, appellant claims there is

insufficient evidence to support her conviction for aggravated robbery. When

determining whether a verdict is supported by sufficient evidence, “‘The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.’” State v. Wilks, 154 Ohio St.3d 359, 2018-

Ohio-1562, 114 N.E.3d 1092, ¶ 156, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. When evaluating the sufficiency

of the evidence, a reviewing court considers “whether the evidence, ‘if believed,

would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.’” State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19,

quoting Jenks at paragraph two of the syllabus.

Appellant was convicted of aggravated robbery in violation of R.C.

2911.01(A)(1), which provides in pertinent part that “[n]o person, in attempting or

committing a theft offense * * * or in fleeing immediately after the attempt or

offense, shall * * * [h]ave a deadly weapon on or about the offender’s person or under

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

offender possesses it, or use it[.]”

An offender may be found guilty of aggravated robbery by being

complicit in an aggravated robbery. See R.C. 2923.03(F). For complicity, R.C.

2923.03(A) provides in pertinent part that “[n]o person, acting with the kind of

culpability required for the commission of an offense, shall * * * aid or abet another

in committing the offense.” R.C. 2923.03 (A)(2). To aid or abet means “‘[t]o assist

or facilitate the commission of a crime, or to promote its accomplishment.’” State

v. Johnson, 93 Ohio St.3d 240, 243, 754 N.E.2d 796 (2001), quoting Black’s Law

Dictionary 69 (7th Ed.1999). “‘Aiding and abetting may be shown by both direct

and circumstantial evidence.’” State v. Shepard, 8th Dist. Cuyahoga No. 112225,

2023-Ohio-4791, ¶ 69, quoting State v. Gardner, 8th Dist. Cuyahoga No. 111506,

2023-Ohio-307, ¶ 35.

Our review of the record reflects that this is not a case of mere

presence at the scene of the crime.1 Although the testimony reflects that appellant

was outside in the car while Harris went into the victim’s home, assaulted the victim,

and displayed a weapon to the victim, appellant was not indicted for the felonious

assault. Pertinent hereto, there is evidence in the record that implicates appellant

in the commission of the aggravated robbery that ensued.

The testimony and evidence show that appellant assisted and

cooperated with Harris in the commission of the aggravated robbery by driving the

victim and Harris to the ATM and by using the victim’s bank card to withdraw

money from the ATM. The victim testified that while in the car, she was scared and

1 Contrary to appellant’s argument, this case is not similar to State v. Langford,

8th Dist. Cuyahoga No. 83301, 2004-Ohio-3733, in which the record was devoid of

evidence that would implicate Langford in the commission of the robberies involved in

that case beyond Langford’s mere presence in the vehicle at the scene of the crime and his

association with the offender.

stated, “Please, I don’t want to do this. I can’t do this. I can’t afford this.”

Photographs and video evidence were introduced depicting appellant as she was

withdrawing the money. Appellant then drove the victim home and dropped her off

in the street. That appellant shared the criminal intent of the principal may be

inferred from the circumstances surrounding the crime. See Johnson at 246; see

also Shepard at ¶ 69.

After viewing this and the other testimony and evidence presented in

a light most favorable to the prosecution, we find that any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt

and that appellant was complicit in committing the offense of aggravated robbery.

The first assignment of error is overruled.

Under the second assignment of error, appellant claims her

conviction is against the manifest weight of the evidence. When evaluating a claim

that a verdict is against the manifest weight of the evidence, “we review the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether in resolving conflicts in the evidence, the [trier of

fact] clearly lost its way and created such a manifest miscarriage of justice that we

must reverse the conviction and order a new trial.” Wilks, 154 Ohio St.3d 359, 2018-

Ohio-1562, 114 N.E.3d 1092, at ¶ 168, citing State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997). Reversing a conviction based upon the weight of the

evidence should occur “‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Appellant incorporates the arguments she presented under her first

assignment of error. After reviewing the entire record, weighing the evidence and

all reasonable inferences, and considering the credibility of the witnesses, we do not

find the trial court clearly lost its way and created such a manifest miscarriage of

justice that the adjudication must be reversed. Although appellant challenges the

testimony and evidence that was provided, this is not the exceptional case in which

the evidence weighs heavily against the conviction. We are not persuaded by

appellant’s arguments otherwise. The second assignment of error is overruled.

Under the third assignment of error, appellant argues that the trial

court committed plain error and violated appellant’s right to confront witnesses

against her by permitting the state to introduce an out-of-court statement that was

made by her nontestifying codefendant during a police interrogation.

Initially, we recognize that contrary to appellant’s argument, the

challenged testimony was not elicited by the state. Rather, the testimony was

provided upon cross-examination of the detective by Harris’s counsel. During cross-

examination, the detective was asked by Harris’s counsel about statements made by

Harris about what he did on the day of the incident, which according to Harris’s

initial statement “was all consensual.” The detective confirmed that Harris

indicated he went and saw the victim, the victim gave them money, and they went

to an ATM together. The detective then confirmed the following questions from

Harris’s counsel:

Q. You asked [Harris] how much money, correct?

A. Yes.

Q. And he said you would have to ask Julie, correct?

A. And he expanded, 3- or $400, yes.

In context, the above testimony did not implicate appellant in a

robbery. Furthermore, even if such an inference could be made from the limited

testimony provided, we do not find any prejudice occurred. The record reflects

appellant was captured withdrawing money from the ATM.

Although appellant cites to Bruton v. United States, 391 U.S. 123, 88

S.Ct. 1620, 20 L.Ed.2d 476 (1968), and related authority with regard to his right to

confrontation, it has been recognized that a Bruton violation may be harmless. State

v. Gerald, 4th Dist. Scioto No. 12CA3519, 2014-Ohio-3629, ¶ 67-68; State v.

Edwards, 11th Dist. Lake No. 2012-L-034, 2013-Ohio-1290, ¶ 39-40; State v.

Moritz, 63 Ohio St.2d 150, 156, 407 N.E.2d 1268 (1980). Upon our review of the

record, we find that even if Bruton were applicable herein, the contested

codefendant statement did not prejudice appellant in light of the overwhelming

evidence implicating appellant and that any potential error in the admission of the

statement was harmless beyond a reasonable doubt. We also find no plain error

occurred with regard to this testimony.2

Under the fourth assignment of error, appellant claims the trial court

committed plain error by allowing the detective to express his personal opinion

about the veracity of certain statements made by Harris. The detective was asked

about statements during the interview in which Harris kept saying, “It’s me. It

wasn’t [appellant],” to which the detective indicated, “Sometimes people aren’t very

sincere with their responses and in an attempt to try and get somebody else out of

trouble.” Counsel for Harris elicited similar testimony during his cross-examination

of the detective about similar words in the detective’s written report.

Because appellant did not object to the challenged testimony from the

detective, she must demonstrate that plain error occurred. To establish plain error,

appellant “must show that an error occurred, that the error was obvious, and that

there is ‘a reasonable probability that the error resulted in prejudice,’ meaning that

the error affected the outcome of the trial.” (Emphasis deleted.) State v. McAlpin,

169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66, quoting State v. Rogers,

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “Notice of plain error ‘is

to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” State v. Neyland, 139 Ohio St.3d 353,

2 We note that no objection was made concerning the best evidence rule, which is

raised by appellant on appeal.

2014-Ohio-1914, 12 N.E.3d 1112, ¶ 177, quoting State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

Here, even if we assume the challenged testimony was improperly

admitted, there is no reasonable probability that the error resulted in prejudice. The

victim testified to appellant’s involvement in the commission of the aggravated

robbery, and the jurors were able to observe the evidence depicting appellant

withdrawing money from the ATM. No outcome-determinative plain error can be

said to have occurred. The third and fourth assignments of error are overruled.

Under the fifth assignment of error, appellant claims the trial court

erred by permitting highly prejudicial hearsay testimony of statements made by the

victim to the banker concerning the aggravated-robbery incident.

“‘A trial court has broad discretion regarding the admission of

evidence, including whether evidence constitutes hearsay and whether it is

admissible hearsay.’” Shepard, 8th Dist. Cuyahoga No. 112225, 2023-Ohio-4791, at

¶ 74, quoting State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644,

¶ 29. A reviewing court will not reverse a trial court’s ruling on evidentiary issues

“absent an abuse of discretion and proof of material prejudice.” State v. McKelton,

148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181, citing State v. Belton,

149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.

Under Evid.R. 803(2), the excited-utterance exception, “A statement

relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition,” is “not excluded by the

hearsay rule, even though the declarant is available as a witness[.]” “There is no per

se amount of time after which a statement can no longer be considered to be an

excited utterance.” (Emphasis sic.) State v. Taylor, 66 Ohio St.3d 295, 303, 612

N.E.2d 316 (1993). “The central requirements are that the statement must be made

while the declarant is still under the stress of the event and the statement may not

be a result of reflective thought.” (Emphasis sic.) Id.

In the present case, the victim went to her bank later during the day

of the aggravated robbery and informed the bank employee that her account had

been compromised. The bank employee testified that the victim “was completely

beside herself. She was crying the whole time, just very upset and still nervous and

anxious.” The bank employee then testified to statements from the victim describing

how her account was compromised. Even if the challenged statements do not

qualify as excited utterances, we find no material prejudice resulted. The victim

testified to the events that transpired, and other evidence was introduced showing

appellant’s involvement in the aggravated robbery. Furthermore, in light of the

other testimony and evidence in the matter, any error that occurred regarding the

admission of the challenged testimony did not affect appellant’s substantial rights

and was harmless error. See Crim.R. 52(A). Accordingly, we overrule the fifth

assignment of error.

Under her sixth assignment of error, appellant claims the trial court

committed prejudicial error by refusing to allow cross-examination of the

investigating officer concerning the alleged physical abuse of appellant by Harris

and what he learned about their relationship, which appellant claims would have

supported her defense of duress. However, it is clear from the record that counsel

was not asking about the detective’s personal knowledge of any such abuse but was

asking about information the detective learned from others during his investigation.

The trial court determined that what the detective learned from other people is

hearsay. We find no abuse of discretion by the trial court. The sixth assignment of

error is overruled.

Under her seventh assignment of error, appellant claims the trial

court erred by refusing to instruct the jury on the defense of duress. We review a

trial court’s refusal to provide a requested jury instruction for an abuse of discretion.

State v. Simes, 8th Dist. Cuyahoga No. 103672, 2016-Ohio-7300, ¶ 33, citing State

v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 33. “[T]he defense

of duress is extremely limited and should only be applied in rare instances.” Id.,

citing State v. Cross, 58 Ohio St.2d 482, 488, 391 N.E.2d 319 (1979). To warrant an

instruction for duress, “All the conditions must be met, and the court must find as a

matter of law that the evidence is sufficient to warrant an instruction on the

affirmative defense of necessity or duress.” Cross at 488. “One of the essential

features of the defense of duress is a sense of immediate, imminent death, or serious

bodily injury if the actor does not commit the act as instructed.” State v. Getsy, 84

Ohio St.3d 180, 199, 702 N.E.2d 866 (1998), citing Cross at 487.

The record herein reflects that although the victim testified to Harris’s

controlling behavior and indicated she was afraid of Harris and did not want

anything to happen to appellant, the victim did not testify that Harris indicated he

was going to harm appellant, and the victim did not testify to any statements made

to or by appellant that would indicate appellant acted out of fear for her life or great

bodily harm. The trial court afforded the parties the opportunity to address the issue

of duress and allowed for further evidence, but there was a lack of admissible

evidence as to any history of physical abuse or violence. In the end, the trial court

properly found there was insufficient evidence of duress. Upon our review, we find

the trial court did not abuse its discretion by not giving the jury instruction for

duress.

Under her eighth assignment of error, appellant claims she was

denied effective assistance of counsel. Appellant argues her trial counsel failed to

seek a separate trial, failed to object to the introduction of her codefendant’s out-of-

court statements and the detective’s interpretation of those statements, and failed

to adequately separate appellant from her codefendant, who was the principal

offender.

To establish ineffective assistance of counsel, the defendant must

show “(1) that defense counsel’s performance was deficient, i.e., that counsel’s

performance fell below an objective standard of reasonable representation, and (2)

that counsel’s deficient performance prejudiced him, i.e., that there is a reasonable

probability that but for counsel’s errors, the proceeding’s result would have been

different.” State v. Nicholson, Slip Opinion No. 2024-Ohio-604, ¶ 318, citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two

of the syllabus. “[A] court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance * * * .” Strickland

at 689.

Crim.R. 8(B) permits joinder of defendants where they are alleged to

have participated in the same act or series of acts constituting an offense or in the

same course of criminal conduct. Crim.R. 14 provides for a court to order a separate

trial if the state or defendant are prejudiced by the joinder. Appellant claims that

she should have been tried separately from Harris because the state used the

nontestifying codefendant’s statement against her and because appellant’s defense

of duress shifted the blame to her codefendant whose defense amounted to a denial

the victim had been robbed. However, the record reflects Harris’s and appellant’s

involvement, and appellant presented insufficient evidence that she acted under

duress. Contrary to appellant’s argument, appellant and Harris did not maintain

mutually antagonistic defenses and even if they had, this does not necessarily

establish counsel’s failure to request to sever constitutes ineffective performance.

See State v. Groves, 4th Dist. Scioto No. 20CA3902, 2022-Ohio-442, ¶ 86-88; see

also State v. Webster, 10th Dist. Franklin No. 20AP-171, 2021-Ohio-3218, ¶ 43-45.

It is apparent from the record that appellant’s trial counsel’s strategy was to shift the

blame upon Harris and to maintain appellant was not complicit in the offenses

charged against her. Furthermore, appellant has failed to demonstrate she was

prejudiced by counsel’s performance such that there is no reasonable probability the

outcome of the trial would have been different. Because appellant has not

established that she received ineffective assistance of counsel, the eighth assignment

of error is overruled.

Under her ninth assignment of error, appellant claims the trial court

erred by requiring her to serve an additional three-year mandatory term of

imprisonment on the firearm specification in Count 3 when Counts 1 and 3 were

found to be allied offenses of similar import and the state elected to proceed on

Count 1. In State v. Bollar, 171 Ohio St.3d 678, 2022-Ohio-4370, 220 N.E.3d 690,

the Supreme Court of Ohio recognized that “R.C. 2941.25’s merger provision does

not override R.C. 2929.14(B)(1)(g)” and that “R.C. 2929.14(B)(1)(g) requires that

courts impose prison terms for the two most serious firearm specifications ‘of which

the offender is convicted or to which the offender pleads guilty.’” Bollar at ¶ 21, 23,

quoting R.C. 2929.14(B)(1)(g). As stated in Bollar, “[T]he plain language of R.C.

2929.14(B)(1)(g) requires that certain offenders receive prison terms for multiple

specifications” and “[t]he statute makes no exception to the application of its

provisions if one of the underlying felony offenses has been merged.” Bollar at ¶ 1,

19; see also State v. Powell, 2023-Ohio-2770, 222 N.E.3d 1139, ¶ 98 (8th Dist.),

following Bollar. Consistent therewith, in this matter, the sentencing court was

required to impose separate prison terms for each of the two firearm specifications.

Accordingly, the ninth assignment of error is overruled.

This court has reviewed the entire record and considered all the

arguments presented. We are not persuaded by any argument not specifically

addressed herein.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and

MICHAEL JOHN RYAN, J., CONCUR