STATE OF OHIO v. NAVI SANDERS

Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland

State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court

determined that a conflict existed between the original panel’s decision in this case

and this court’s prior decision in State v. Muniz, 8th Dist. Cuyahoga No. 93528,





2010-Ohio-3720, regarding what must be proven to support a conviction for

intimidation.

In his motion for en banc consideration, the appellant also alleged

that this court’s prior decision presents a conflict with State v. McLean, 8th Dist.

Cuyahoga No. 106293, 2018-Ohio-2232, and State v. Teaque, 8th Dist. Cuyahoga

No. 106469, 2018-Ohio-3997, as to whether this court must conduct an allied

offense analysis and recognize plain error where the sentences for the alleged allied

offenses were ordered to be served concurrently. We find no conflict here. The panel

opinion does not conflict with Teaque because that case involved the merger of allied

offenses where sentences were ordered to be served consecutively. Further, the

panel opinion does not conflict with McLean because the Ohio Supreme Court has

held that the recognition of plain error under Crim.R. 52(B) is discretionary. State

v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. Therefore, the

question presented is not a conflict of law but rather a divergence in the exercise of

judicial discretion, and we decline to accept this issue for en banc resolution.

Having applied the law adopted by the en banc court here on the issue

of what must be proven to support an intimidation conviction, the panel opinion

released November 15, 2018, stands as the decision of the court. The text of that

opinion is appended to this en banc decision. We overrule all prior decisions of this

court inconsistent with our holding here.





It is the opinion of the en banc court that the fact that an underlying

criminal or delinquent act occurred is not an essential element of the crime of

intimidation of a witness.

R.C. 2921.04(B)(2) states that no person, knowingly and by force or

threat of harm, “shall attempt to influence, intimidate, or hinder * * * [a] witness to

a criminal or delinquent act by reason of the person being a witness to that act[.]”

In this context, a “witness” means “any person who has or claims to have knowledge

concerning a fact or facts concerning a criminal or delinquent act, whether or not

criminal or delinquent child charges are actually filed.” R.C. 2921.04(E).

“The purpose of an indictment is to inform the accused of the crime

with which he is charged. The indictment, therefore, provides notice to the

defendant of the charges against him so that he may prepare a defense.” State v.

Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 11, quoting State v.

Davis, 8th Dist. Cuyahoga No. 61076, 1992 Ohio App. LEXIS 4754, 2

(Sept. 17, 1992).

In Muniz, 8th Dist. Cuyahoga No. 93528, 2010-Ohio-3720, the

defendant was charged with intimidation of a crime victim in violation of R.C.

2921.04(B). The indictment in Muniz made no mention of the underlying offense.

Further, a review of the facts in that case shows that it was not clear that an

underlying criminal act had occurred, let alone the nature of such a criminal act.

The court in Muniz was concerned with the due process implications of the

defendant not being given adequate notice of the charges she faced. In light of this





concern, the court in Muniz found the state’s failure to give notice of the underlying

predicate acts in the indictment rendered it defective from the outset.

Nothing in this en banc opinion shall be construed to undermine the

holding of Muniz with respect to notice requirements. We maintain that a defendant

is entitled to adequate notice of the crimes against which they must defend themself.

A charge of intimidation does not require a conviction on the

underlying offense. Had that been the legislature’s intent, it could easily have used

the words “criminal conviction” or “delinquent adjudication” rather than “criminal

or delinquent act.” Instead, the state need only prove that the intimidation victim

had knowledge about a fact or facts concerning the underlying criminal or

delinquent act, and that the defendant knowingly and by force or threat of harm

intimidated the victim because of the victim’s knowledge of facts concerning the

matter. While a defendant must be apprised of the nature of the underlying criminal

or delinquent act, that act is not a separate element of the offense that must be

proven beyond a reasonable doubt. In holding that the occurrence of the underlying

act is an essential element of intimidation, this court imposed an unworkable

burden on the state. In making a case for intimidation, a prosecutor is not required

to establish beyond a reasonable doubt that the predicate act occurred. Such a

requirement, particularly in cases where the underlying offense may have been

committed by someone other than the defendant in the intimidation case, would

require a trial within a trial that we do not believe was intended or contemplated by

the legislature in enacting R.C. 2921.04.

We hold that the occurrence of the underlying criminal or delinquent

act is not an essential element of the offense of intimidation that must be proven

beyond a reasonable doubt. To the extent that our decision in Muniz, 8th Dist.

Cuyahoga No. 93528, 2010-Ohio-3720, is inconsistent with this holding, it is

overruled.