[Cite as State v. Oliver, 2015-Ohio-2684.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 12 MA 212 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

CHRISTIAN OLIVER ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 12 CR 590A 

JUDGMENT: Affirmed in part. Reversed in part. 

Vacated and Remanded for 

Resentencing. 

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. Desirae DiPiero 

7330 Market Street 

Youngstown, Ohio 44512 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: June 29, 2015
[Cite as State v. Oliver, 2015-Ohio-2684.]

WAITE, J. 

{¶1} Appellant Christian Oliver appeals his conviction in the Mahoning 

County Common Pleas Court for the illegal conveyance of a prohibited item onto the 

grounds of a detention facility, possession of cocaine, participation in a criminal gang, 

and perjury. Appellant contends that the trial court erred in three separate instances 

regarding jury instructions. However, there was no error as to two of the instructions 

and Appellant is unable to show prejudice in regard to the remaining instruction. 

{¶2} Appellant also appeals his November 14, 2012 sentencing entry. He 

argues that the trial court did not make the requisite findings pursuant to R.C. 

2929.14(C)(4) before imposing consecutive sentences. Despite Appellant’s 

contentions, although the trial court did not specifically cite to the statute at the 

sentencing hearing, it is not required to do so. It is evident by the record that the trial 

court engaged in the appropriate analysis and made the requisite findings before 

imposing consecutive sentences. Finally, Appellant correctly asserts that the trial 

court erred in imposing a five year post-release control period when the maximum 

period for a second-degree offense is three years. For the reasons provided, the 

judgement of the trial court is affirmed in regard to the jury instructions and the 

imposition of consecutive sentences. However, the trial court’s imposition of postrelease control is vacated and remanded to the trial court for resentencing solely on 

this issue. 

Factual and Procedural History

{¶3} The Youngstown Police Department began an investigation of 87 Hilton 

Avenue in Youngstown based on information that drugs were being sold at this 
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location. As part of the investigation, the police obtained a search warrant. During 

the execution of the warrant, multiple officers observed a male wearing a red shirt 

throw something off a balcony. An officer later retrieved a scale and a baggy of 

cocaine from the area surrounding the balcony. Additional evidence was found at the 

location which led police to believe that gang activity was taking place at the house. 

The officers arrested three men who were found at the location, including Appellant. 

At the county jail, a packet of cocaine was found in Appellant’s underwear. 

{¶4} Each of the men were tried separately. At Terence Sly’s preliminary 

hearing, Appellant testified that he threw the scale off the balcony, despite evidence 

that it was actually Sly who tried to dispose of the contraband. As a result of 

Appellant’s testimony, he was charged with perjury, and in the alternative, tampering 

with evidence. 

{¶5} Following a jury trial, Appellant was convicted of illegal conveyance of 

prohibited items onto the grounds of a detention facility, a felony of the third degree; 

enhanced possession of cocaine, a felony of the fourth degree; perjury, a felony of 

the third degree; and participation in a criminal gang, a felony of the second-degree. 

He was found not guilty of tampering with evidence. He was sentenced as follows: 

one year of imprisonment on the illegal conveyance charge, one year on the 

possession charge, one year on the perjury charge, and six years on the participation 

charge. All of his sentences were to be served consecutively, for an aggregate total 

of nine years. This timely appeal followed. 

First, Second, and Third Assignment of Errors
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THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GAVE THE 

JURY AN INSTRUCTION ON COMPLICITY WHICH WAS 

UNSUPPORTED BY ANY EVIDENCE AT TRIAL. 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IN [SIC] GAVE 

THE JURY AN INCOMPLETE AND MISLEADING INSTRUCTION ON 

THE ELEMENTS OF THE CRIME OF PARTICIPATING IN A 

CRIMINAL GANG. 

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON 

"CONSCIOUSNESS OF GUILT". 

{¶6} Because all of these assignments address jury instructions, we will 

address them together. Appellant has raised as error three separate instances of 

allegedly improper jury instructions. A trial “court must give all instructions that are 

relevant and necessary for the jury to weigh the evidence and discharge its duty as 

the factfinder.” State v. Griffin, 141 Ohio St.3d 392, 24 N.E.3d 392, 2014-Ohio-4767, 

¶5, citing State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two 

of the syllabus. 

{¶7} When determining whether jury instructions resulted in prejudicial error, 

“the charge must be taken as a whole, and the portion that is claimed to be 

erroneous or incomplete must be considered in its relation to, and as it affects and is 

affected by the other parts of the charge.” State v. Hardy, 28 Ohio St.2d 89, 92, 276 

N.E.2d 247 (1971). In other words, we view jury instructions as a whole. If from the 
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entire charge it appears that a correct statement of the law was given in such a 

manner that the jury could not have been misled, no prejudicial error results. 

Complicity 

{¶8} Appellant contends that the trial court erred in instructing the jury on 

complicity. Appellant explains that he was charged solely as a principal offender and 

there is no evidence in the record as to complicity. What is more, Appellant argues 

that, over his objection, the trial court gave a second complicity instruction which only 

served to aggravate the problem. 

{¶9} In response, the state asserts that complicity is among the offenses that 

can be used to establish a pattern of gang activity, which is an element of 

participation in a criminal gang. The state explains that the court mentioned 

complicity merely while defining a term found within a charged offense. The state 

notes that the trial court clarified to the jury that Appellant had been charged as a 

principal offender. Regardless, the state argues that even if this could be seen as 

error it would be harmless as the state clearly argued that Appellant was the principal 

in its closing argument. 

{¶10} While providing jury instructions, the court defined the offense of 

participation in a criminal gang as: 

[P]ersons in a criminal gang have committed, attempted to commit, 

conspired to commit, been complicitors in the commission of, or 

solicited, coerced or intimidated another to commit, attempted to 
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commit, conspired to commit, or were in complicity in the commission of 

two or more of the following offenses * * *. 

(Tr. Vol. V, pp. 992-993.) 

{¶11} The trial court then defined several terms found within the definition, 

including the term complicity, which Appellant claims was error. Before defining 

complicity, the trial court stated: “[t]he defendant is charged with complicity in the 

commission of the aforementioned crimes.” (Tr. Vol. V, p. 994.) The trial court then 

defined complicity. 

{¶12} After the trial court provided the jury instructions, the judge met with 

both counsel in chambers to discuss the jury instructions that had just been given. 

During the meeting, the prosecutor stated “the only other issue I have is we gave 

them the complicity instruction without telling them the Defendant has been charged 

as a principal, but in the alternate, you can charge him as a complicitor.” (Tr. Vol. V, 

p. 1012.) Both the state and the defense requested that the definition of complicity 

be taken out of the instructions before being handed to the jurors. 

{¶13} The trial court determined that the instruction would not be removed. 

The judge decided that another instruction would be given to clarify that Appellant 

had been charged as a principal but, in the alternative, the jury could consider him as 

a complicitor. The defense objected and stated that the complicity instruction should 

have either been stricken or left as is, even though he had objected to the instruction. 

{¶14} The jury was brought back into the courtroom and the court clarified the 

issue of complicity by stating: 
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And the issue of complicity, this Defendant, Christian Oliver, is charged 

as a principal offender. In all offenses alleged in the indictment, he’s 

charged as a principal offender, and as an alternative to a principal 

offender, he may be considered a complicitor for purposes of 

complicity. 

(Tr. Vol. V, p. 1032.) 

{¶15} On review, we will not find reversible error unless the record establishes 

both that the jury instructions were erroneous and that Appellant suffered prejudice 

as a result of the erroneous instruction. While we agree that the complicity 

instructions were somewhat confusing, Appellant has neither alleged nor shown 

prejudice. As Appellant is unable to demonstrate prejudice, he cannot show that 

reversible error occurred. Accordingly, Appellant’s first assignment is without merit 

and is overruled. 

Criminal Gang Activity

{¶16} In his second assignment of error, Appellant alleges that the trial court’s 

instructions on participation in a criminal gang were also erroneous. A trial court is 

not required to give jury instructions verbatim and may provide instructions that 

communicate the same legal principles using its own language. State v. Sneed, 63 

Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992), citing State v. Nelson, 36 Ohio St.2d 79, 

303 N.E.2d 865, (1973) paragraph one of the syllabus; State v. Hicks, 43 Ohio St.3d 

72, 77, 538 N.E.2d 1030 (1989). 

{¶17} R.C. 2923.41(B)(1) provides: 
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“Pattern of criminal gang activity” means, subject to division (B)(2) of 

this section, that persons in the criminal gang have committed, 

attempted to commit, conspired to commit, been complicitors in the 

commission of, or solicited, coerced, or intimidated another to commit, 

attempt to commit, conspire to commit, or be in complicity in the 

commission of two or more of any of the following offenses: * * *. 

{¶18} The trial court provided the following instruction to the jury: 

The pattern of criminal gang activity means that persons in a criminal 

gang have committed, attempted to commit, conspired to commit, been 

complicitors in the commission of, or solicited, coerced or intimidated 

another to commit, attempted to commit, conspired to commit, or were 

in complicity in the commission of two or more of the following offenses: 

(1) A felony or act committed by a juvenile that would be a felony if 

committed by an adult; an offense of violence or an act committed by a 

juvenile that would be an offense of violence if committed by an adult; 

at least one of the offenses is a felony which occurred on or after 

January 1st, 1999, and the last of which occurred within five years after 

at least one of those offenses. The two or more offenses must have 

been committed on separate occasions and/or by two or more persons. 

(Tr. Vol. V, pp. 992-993.) 

{¶19} Appellant argues that the trial court omitted the brief citation of 

subsection (B)(2) from the instruction, thus the instruction was incomplete. 
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{¶20} The body of subsection (B)(2) provides: 

There is a “pattern of criminal gang activity” if all of the following apply 

with respect to the offenses that are listed in division (B)(1)(a), (b), or 

(c) of this section and that persons in the criminal gang committed, 

attempted to commit, conspired to commit, were in complicity in 

committing, or solicited, coerced, or intimidated another to commit, 

attempt to commit, conspire to commit, or be in complicity in 

committing: 

(a) At least one of the two or more offenses is a felony. 

(b) At least one of those two or more offenses occurs on or after 

January 1, 1999. 

(c) The last of those two or more offenses occurs within five years after 

at least one of those offenses. 

(d) The two or more offenses are committed on separate occasions or 

by two or more persons. 

{¶21} Appellant argues that the trial court failed to provide the complete 

definition for the element pattern of criminal gang activity because it omitted a citation 

to R.C. 2923.41(B)(2) even though the actual substance of this section was included 

in the instruction. In response, the state argues that the trial court included all 

aspects of the definition. Although the definition was not delivered verbatim, the 

state urges that this was an effort to simplify the definition for the jury. 
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{¶22} Again, in order to find reversible error in regard to the trial court’s jury 

instructions, the record must reflect both an erroneous instruction and resulting 

prejudice. There appears to be no case in Ohio which holds that the omission of a 

subsection number from a jury instruction is error. While the trial court did omit the 

words “subject to division (B)(2) of this section,” the trial court clearly included in the 

instruction the substance of subsection (B)(2). Thus, the jury was given a complete 

and accurate statement of the law. There is no error in the trial court’s instruction 

and this record certainly does not reveal any prejudice to Appellant from the omission 

of a cite to a statutory subsection when the trial court clearly communicated the 

substance of the law to the jury. Appellant’s second assignment of error is without 

merit and is overruled. 

Consciousness of Guilt 

{¶23} Appellant contends in his third assignment that the trial court improperly 

provided the jury with instructions on consciousness of guilt. Appellant argues that 

as the state failed to present evidence related to consciousness of guilt, there is no 

evidence in the record to support this instruction. 

{¶24} The state contends that the instruction was proper under State v. 

Williams, 79 Ohio St.3d 1, 679 N.E.2d 646 (1997). Pursuant to Williams, a 

consciousness of guilt instruction is considered proper when there is evidence of the 

“accused’s flight, escape from custody, resistance to arrest, concealment, 

assumption of a false name, and related conduct.” The state argues that tampering 

with evidence and perjury fall within “related conduct.” The state cites to State v. 
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Lawson, 12th Dist. No. CA99-12-226, 2001 WL 433121, *9 (Apr. 30, 2001), which 

held that tampering with evidence falls within such other related conduct. While the 

state notes that no Ohio court has determined whether perjury also constitutes 

related conduct for purposes of a consciousness of guilt instruction, it cites several 

out-of-state cases which have found that perjury should be so included. 

{¶25} Appellant’s argument is essentially two-fold: tampering with the 

evidence and perjury charges do not support the consciousness of guilt instruction 

and the instruction itself was incorrect. 

{¶26} In examining Williams, it is apparent that a consciousness of guilt 

instruction is proper when a defendant takes some action to suggest he is attempting 

to conceal a crime or evade prosecution. A trait inherent in these actions is 

dishonesty. For instance, concealment is a dishonest action as it is intended to cover 

up some sort of wrongdoing and prevent others from learning the truth. It also 

involves deliberate wrongdoing impacting the preservation of evidence. Providing a 

false name also involves a dishonest act: lying about one’s identity in order to evade 

prosecution. 

{¶27} In the matter at hand, the relevant offenses, perjury and tampering with 

evidence, are not specifically listed within Williams. Thus, the question before us is 

whether perjury and tampering with evidence constitute “related conduct.” Similar to 

the offenses discussed in Williams, perjury and tampering with evidence involve 

elements of dishonesty and actions taken to mislead an investigation, evade 

prosecution, and affect the preservation of evidence. Based on these characteristics, 
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perjury and tampering with evidence are quite similar to those offenses specifically 

listed within Williams.

{¶28} While not directly on point, the Fourth District used similar logic when it 

evaluated whether an offense fell within “other acts” pursuant to Evid.R. 404(B) to 

determine whether certain character evidence was admissible in State v. Leonard, 

4th Dist. No. CA92-12, 1993 WL 172198, (May 21, 1993). In Leonard, the Court 

cited McCormick on Evidence: 

Accordingly, the following are considered under this general category of 

admissions by conduct: a party's false statement about the matter in 

litigation, whether before suit or on the stand; subornation of perjury; 

fabrication of documents; undue pressure by bribery, intimidation, or 

other means to influence a witness to testify favorably or to avoid 

testifying; destruction or concealment of relevant documents or objects; 

attempt to corrupt the jury; and hiding or transferring property in 

anticipation of judgment. 

Id. at *5, citing McCormick, 2 McCormick on Evidence, Section 265(e), at 190-191 

(4th Ed.1992). 

{¶29} Although the issue in the instant case is different than the issue in 

Leonard, the list of “other acts” that may be admissible shares certain traits with the 

Williams “related conduct.” These traits reflect conduct that indicates an admission of 

guilt or, in other words, consciousness of guilt. Based on this, we can only conclude 
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that both evidence of perjury and of tampering with the evidence provide an 

appropriate basis for giving a consciousness of guilt instruction to the jury. 

{¶30} Turning to the question of whether the instruction itself was erroneous, 

the trial court instructed as follows: 

In this case, there is evidence that the Defendant tampered with 

evidence and committed perjury. Tampering with evidence and perjury 

do not, in and of itself, raise a presumption of guilt or a guilty connection 

with the crime. That is, you’re instructed that you may not presume the 

Defendant guilty from such evidence. However, you may infer a 

consciousness of guilt regarding the evidence of the Defendant’s 

tampering with evidence and perjury. A defendant’s tampering with 

evidence, perjury and related conduct can be considered as evidence 

of consciousness of guilt and, thus, of guilt itself. 

(Tr. Vol. V, pp. 996-997.) The standard Ohio Jury Instruction which Appellant urges 

should instead have been given states: 

If you find that the facts do not support that the defendant (describe 

defendant’s conduct), or if you find that some other motive prompted 

the defendant’s conduct, or if you are unable to decide what the 

defendant’s motivation was, then you should not consider this evidence 

for any purpose...You alone will determine what weight, if any, to give 

to this evidence. 

(Appellant’s Brf., p. 11.) 
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{¶31} We reviewed a similar instruction on consciousness of guilt in State v. 

Wright, 7th Dist. No. 03MA112, 2004-Ohio-6802. In Wright, the following instruction 

was given to the jury: 

In this case, there was evidence that the defendant fled from the vicinity 

of the crime following the alleged aggravated robbery of the vehicle of 

James Grant, and again following the apprehension by the Campbell 

Police Department. Fleeing from the vicinity of a crime does not, in and 

of itself, raise a presumption of guilt or a guilty connection with the 

crime. That is, you are instructed that you may not presume the 

defendant guilty from such evidence. You may, however, infer a 

consciousness of guilt regarding the evidence of the defendant's 

alleged flight. A defendant's flight and related conduct can be 

considered as evidence of consciousness of guilt and, thus, of guilt 

itself. 

Id. at ¶40. When compared to the jury instruction given in the instant case, the 

instructions are indistinguishable. While not a verbatim recitation of the standard 

instruction, both provide all of the required information in a slightly different format. 

As we have in Wright upheld language identical to that used in the instant matter, it is 

clear the language used by the trial court was not improper. 

{¶32} Accordingly, the trial court did not err in instructing the jury as to 

consciousness of guilt in this matter in any fashion. Appellant’s third assignment of 

error is without merit and is overruled. 
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Fourth Assignment of Error

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE 

REQUISITE FINDINGS PRIOR TO IMPOSITION OF CONSECUTIVE 

SENTENCES AND WHEN IT SENTENCED APPELLANT TO A FIVE 

(5) YEAR PERIOD OF POST-RELEASE CONTROL. 

{¶33} The General Assembly revived the language of former R.C. 2929.14(E) 

under the renumbered R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 

2014-Ohio-3177, 16 N.E.3d 659, ¶22. The language in its current form provides:

If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the 

offender and that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the offender 

poses to the public, and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses while 

the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the 

Revised Code, or was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one 

or more courses of conduct, and the harm caused by two or more of the 
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multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the 

courses of conduct adequately reflects the seriousness of the offender's 

conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶34} Pursuant to R.C. 2929.14(C)(4), a trial court must make the 

requisite findings before the court can overcome the presumption in favor of 

concurrent sentences. Bonnell at ¶23. The trial court must make the requisite 

findings for consecutive sentencing both at the sentencing hearing and in the 

sentencing entry. Id. Although a trial court is not required to recite the statute 

verbatim or use “magic” or “talismanic” words, the record must clearly reflect 

that the trial court engaged in the appropriate analysis. State v. Scott, 7th 

Dist. No. 13 MA 47, 2014-Ohio-2993, ¶14-15, citing State v. Bellard, 7th Dist. 

No. 12-MA-47, 2013-Ohio-2956, ¶17. 

{¶35} Appellant contends that the trial court failed to make the requisite 

findings under R.C. 2929.14(C) before imposing his consecutive sentences. The 

state disputes Appellant’s contention and argues that the trial court stated that a 

single term would not adequately reflect the seriousness of Appellant’s conduct, that 

Appellant’s prior record shows that consecutive terms were necessary to protect the 

public and that consecutive sentences would not disproportionately punish Appellant. 
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{¶36} At the sentencing hearing, the trial court stated: 

[R]ecognizing that in the interest of protecting the public from the 

dangers inherent in gang activity, it is the opinion of the Court a single 

term does not accurately reflect the seriousness of the conduct of the 

Defendant, and that his criminal history does show consecutive terms 

are needed to protect the public from anything further down the road as 

he matures. 

(11/2/12 Sentencing Hrg. Tr., p. 7.) 

{¶37} In the instant case, while the trial court did not specifically cite R.C. 

2929.14(C) at the sentencing hearing, the trial court did use certain phrasing from the 

statute. The trial court recognized “the interest of protecting the public from the 

dangers inherent in gang activity” and found that “a single term does not adequately 

reflect the seriousness of the conduct of the Defendant.” The trial court also found 

“his criminal history does show consecutive terms are needed to protect the public 

from anything further down the road as he matures.” It is evident from the trial court’s 

discussion that it made the requisite findings in R.C. 2929.14(C)(4) and subsection 

(c). 

{¶38} Ohio law also requires inclusion of the appropriate analysis in the 

sentencing entry. In the instant case, the sentencing entry stated “that in order to 

protect the public and not punish the Defendant disproportionately and pursuant to 

§2929.14(C)(4) that a prison term is necessary due to a high risk of recidivism.” 

(11/14/12 Sentencing J.E., p. 2.) Although the trial court again did not use the 
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language of R.C. 2929.14(C)(4) verbatim, it is not required. As the trial court properly 

indicated its R.C. 2929.14(C)(4) findings at the sentencing hearing and in the 

sentencing entry, the imposition of consecutive sentences is not contrary to law. 

Accordingly, Appellant’s argument is without merit and is overruled. 

{¶39} Appellant next contends that the trial court erroneously sentenced him 

to five years of post-release control when the specified period for a non-sex offense 

second-degree felony is only three years. The state concedes the trial court’s error. 

{¶40} At sentencing, the trial court informed Appellant “you will have a period 

of time at that time of five years that you will be on what’s called post-release 

control.” (11/2/12 Sentencing Hrg. Tr., p. 10.) In addition, the sentencing entry 

states that “Defendant has been informed on this date that he is subject to five (5) 

years post release control pursuant to ORC § 2967.28.” (11/14/12 Sentencing J.E., 

p. 2.) However, as Appellant argues, R.C. 2967.28(B)(2) provides that a three year 

post-release control period is required for a second-degree felony, the highest 

degree felony on which Appellant was convicted. 

{¶41} As such, Appellant was sentenced to a longer post-release control 

period than permitted by law. Appellant’s argument regarding the imposition of postrelease control has merit. We remand the issue to the trial court for resentencing 

consistent with this Opinion. 

Conclusion

{¶42} Appellant has not shown that the trial court erred in its jury instructions 

regarding criminal gang activity and consciousness of guilt. Although the trial court’s 
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instruction on complicity may have been confusing, Appellant has not alleged or 

shown prejudice. The trial court complied with R.C. 2929.14(C)(4) and the record 

demonstrates that the court made the requisite findings and stated these findings at 

both the sentencing hearing and in the sentencing entry. However, the trial court 

erroneously imposed a five-year post-release control period in this matter. We affirm 

the trial court’s decision as it regards all jury instruction issues and consecutive 

sentencing, and reverse in part and remand the matter only as to post-release 

control. 

Donofrio, P.J., concurs. 

Robb, J., concurs.