[Cite as State v. Sanders, 2019-Ohio-2566.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 106744 

 v. : 

 

NAVI SANDERS, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION EN BANC 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 27, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-17-617652-B 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Katherine Mullin and Maxwell Martin, 

Assistant Prosecuting Attorneys, for appellee. 

Rick L. Ferrara, for appellant. 

RAYMOND C. HEADEN, J.: 

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 alliedoffense 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. 

 

RAYMOND C. HEADEN, JUDGE 

MARY EILEEN KILBANE, A.J., PATRICIA ANN BLACKMON, MARY J. BOYLE, 

FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T. 

GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN ANN 

KEOUGH, ANITA LASTER MAYS, and MICHELLE J. SHEEHAN, JJ., CONCUR 
Appendix

State v. Sanders, 8th Dist. Cuyahoga No. 106744, 2018-Ohio-4603 (panel decision 

journalized November 15, 2018): 

MELODY J. STEWART, J.: 

A jury found defendant-appellant Navi Sanders guilty of felonious 

assault, discharging a firearm near a prohibited premises, improper handling of a 

firearm in a motor vehicle, and intimidation of a crime witness. The charges 

stemmed from the death of a 14-year-old child who was stabbed while sleeping in 

the same house where Sanders and her boyfriend, Jacque Renode, were staying. 

Just days after the stabbing, Sanders and Renode were seen in the back seat of a car 

moving down the same street where the stabbing occurred. Renode fired several 

shots from the car in the direction of a teenage victim, who had been present in the 

house where the stabbing occurred, and later heard Sanders and Renode make 

incriminating statements about the stabbing. The state theorized that Renode 

murdered the child, and that Sanders was complicit in intimidating the victim from 

assisting the police investigation. Sanders raises a number of assignments of error 

relating to evidence supporting the firearm specifications, the weight of evidence, 

the jury instructions on intimidation, prosecutorial misconduct, the assistance of 

trial counsel, and whether certain sentences should have merged. 

I. Intimidation of a Witness 

The intimidation count charged Sanders with intimidating a witness 

to a murder. Sanders maintains that the state did not prove that the child’s death 
was the result of murder, nor did it prove who committed the murder. She argues 

that because Renode had been charged with the child’s murder, but had yet to be 

tried, the court allowed the jury to assume that Renode murdered the child. She 

maintains that this assumption was a failure of proof on the intimidation count and 

otherwise tainted her ability to receive a fair trial. 

A. Sufficiency of the Evidence 

Count 5 of the indictment charged Sanders with intimidation in 

violation of R.C. 2921.04(B)(2). That section 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 intimidation charge did not require the state to prove beyond a 

reasonable doubt that a murder occurred, much less who committed the murder. 

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.” 

The state only had to prove that the victim had knowledge about a fact or facts 

concerning the child’s death and that Sanders knowingly and by force or threat of 

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

the matter. As charged in the indictment, the to-wit clause referencing murder 
applied merely to describe the circumstances of the criminal act; the precise nature 

of the criminal act was not a separate element of proof for the offense of 

intimidation. 

The evidence showed that the victim of the intimidation count, who 

was 13 years of age at the time, slept at the house where the stabbing occurred. He 

testified that after family members found the child, he personally saw the child on a 

bedroom floor, wrapped in a quilt and bleeding (the child had been stabbed in the 

neck). The child’s mother told the victim to go to a local grocery store and locate her 

fiancé. The victim found the fiancé with Sanders and Renode. After the victim said 

that the child “was bleeding” and might be dead, the fiancé and Renode started 

running to the house, but Sanders only walked, telling the victim that the child was 

“not dead, he’s okay.” When they returned to the house, Renode went to the 

bedroom, but Sanders remained outside. The child testified that Renode then came 

out of the bedroom “really quick and said I have to get out of here * * *.” 

Trial testimony established that Sanders and Renode had previously 

stayed at the mother’s house, but were told to move out after “a bunch of 

altercations” with her children. As she was moving out, Sanders told the mother 

that “I’ll be back and I’m going to kill you and your kids.” Sanders and Renode 

returned to the house a few weeks later, claiming that they were homeless and 

needed a place to stay. The mother took them in as an act of charity. Two days later, 

the mother became upset after discovering that Renode had given an alcoholic drink 

to the child. After sending the child to bed, the mother, her fiancé, Sanders, and 
Renode watched a movie. The mother checked on the child and found him sleeping 

on the floor, so she told Sanders and Renode that they could sleep in the child’s bed. 

When the mother checked on the child two hours later, she found the child wrapped 

in a quilt and bleeding from a stab wound to the neck. Sanders and Renode were no 

longer in the house. The day after the child’s death, the mother’s fiancé found a pair 

of blood-soaked pants belonging to Renode in a clothes pile in one of the bedrooms. 

The child’s mother testified that in the days following the stabbing, 

Renode’s name was mentioned most frequently in speculation about who killed her 

son, given that bloody pants belonging to Renode were found in the house. Four 

days after the stabbing, the victim and his girlfriend were walking down the street 

where the stabbing occurred. They saw a car driving slowly down the street, with 

Renode and Sanders in the back seat. Renode, sitting behind the driver, extended a 

gun out the car window and fired about six times. Two bullets struck a vehicle next 

to where the victim was standing. The car then sped away. 

The state offered no expert testimony on the cause of the child’s 

death, nor did it offer any evidence in the form of police testimony regarding an 

investigation into the child’s death. Nevertheless, the jury could reasonably infer 

that the child, having been stabbed in the neck and wrapped in a quilt, died as result 

of foul play that rose to the level of a criminal act. Jackson v. Virginia, 443 U.S. 307, 

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (it is “the responsibility of the trier of fact 

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts”). 
Evidence that Renode and Sanders may have been involved in the 

child’s death provided a motive for intimidation. The victim testified that Renode 

and Sanders both made incriminating statements on the night of the child’s death. 

And the discovery of Renode’s bloody pants appeared to tie him to the death. These 

background facts put into perspective the victim’s testimony that the car in which 

Sanders and Renode were traveling slowly down the street slowed down and that 

Renode fired multiple shots at him. A rational trier of fact could have found the 

shooting to be an act to intimidate the victim from testifying in a future criminal 

proceeding related to the child’s death. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 

492 (1991), paragraph two of the syllabus. The facts support that the shots were 

intended to injure the victim and/or intimidate him. There is no evidence of any 

other plausible explanation for the shooting. 

In addition to the direct evidence of intimidation, the jury could 

rationally find that Sanders fled the jurisdiction with Renode, an act that showed a 

consciousness of guilt. State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897 (1969), 

paragraph six of the syllabus (“Flight from justice * * * may be indicative of a 

consciousness of guilt.”). Testimony showed that warrants were issued for the arrest 

of Sanders and Renode just days after the shooting. It is unclear when the two left 

Ohio, but Renode was forcibly apprehended six months later in Indiana. 

Although there was no evidence that Sanders fired the shots at the 

victim, a rational trier of fact could find Sanders complicit in intimidating the victim; 

that is, that she acted with the kind of culpability required for the commission of the 
offense and she aided and abetted Renode. See R.C. 2923.03(A). Aiding and 

abetting can be inferred by presence, companionship, and conduct before and after 

the offense is committed. State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 

(2001). Evidence that Sanders and Renode were together on the night the child 

died, along with incriminating statements both she and Renode later made, shows 

that Sanders would have benefitted just as much as Renode by intimidating the 

victim. This self-interest and companionship was sufficient evidence from which 

the jury could infer that Sanders was complicit in committing intimidation. 

For the same reasons, we reject Sanders’s argument that the state 

failed to offer evidence sufficient to prove the firearm specifications attached to 

Counts 2 through 4 of the indictment. Those counts — felonious assault, discharge 

of a firearm near prohibited premises, and improper handling of a firearm in an 

automobile — were related to the intimidation count in that they pertained to 

conduct that occurred inside the car at the same time as the intimidation count 

(which did not contain a firearm specification). The culpability that Sanders had in 

intimidating the victim was applicable to the firearm specifications. State v. 

Chapman, 21 Ohio St.3d 41, 42-43, 487 N.E.2d 566 (1986); State v. Rucker, 8th 

Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 43. The only remaining question is 

whether a rational trier of fact could find that Renode fired shots from the car, thus 

establishing the operability of the handgun. See State v. Murphy, 49 Ohio St.3d 

206, 206, 551 N.E.2d 932 (1990), syllabus. The victim gave testimony which, when 

viewed most favorably to the state, established that Renode fired the gun from the 
moving car. The jury could rationally find Sanders was subject to a firearm 

specification because she aided and abetted Renode. 

B. Unfair Trial 

Sanders next makes a broader argument that the court should have 

granted a mistrial because of repeated statements by the mother, and assertions by 

the state that Renode murdered the child. 

Our discussion of Sanders’s argument relating to the sufficiency of the 

evidence informs the present argument — because the state had to prove that the 

victim had been a “witness” to a criminal act (that is, the child had knowledge 

concerning a fact or facts concerning a criminal act), it necessarily had to provide 

context for Sanders’s belief that the victim had been a witness to a criminal act. See 

State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 216. The 

mother thus gave relevant testimony about the circumstances of her child’s death. 

It is true that the state told the jury in its opening statement that the 

child “was murdered in his bedroom, his throat was slashed, by Jacque Renode, by 

Navi Sanders’[s] boyfriend,” but this was irrelevant. This statement was not 

evidence — nothing said in an opening statement is considered evidence. State v. 

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 48. What mattered 

was that the state prove that Sanders was complicit in intimidating a witness who 

had knowledge concerning a fact or facts about a criminal act. The jury could have 

drawn different conclusions on whether the child died as result of murder or some 
other criminal homicide. We thus conclude that the court did not abuse its 

discretion by denying Sanders’s motion for a mistrial. 

C. Jury Instructions 

Although defense counsel stated that he had no objection to the jury 

instructions, Sanders now claims plain error because the instructions for the offense 

of intimidation did not require the jury to find beyond a reasonable doubt that the 

child had been murdered. Sanders also complains that the jury instruction failed to 

list any of the required elements of murder. 

We summarily reject the argument that the jury instructions were 

erroneous based on our discussion in Part I(A) of this opinion. The state did not 

have to prove beyond a reasonable doubt that a murder occurred; it only had to 

prove that Sanders subjectively believed that the victim had knowledge concerning 

the stabbing and that Sanders was complicit with Renode in firing shots at the victim 

in order to intimidate him. 

Because the jury instructions were not plainly erroneous, defense 

counsel’s failure to object to them did not deprive Sanders of her constitutional right 

to the effective assistance of counsel. State v. Delawder, 4th Dist. Scioto 

No. 10CA3344, 2012-Ohio-1923, ¶ 4 (“counsel had no duty to object to an 

appropriate instruction”). 

II. Manifest Weight 

Sanders asks us to independently weigh the evidence and conclude 

that testimony by the child’s mother was completely fabricated because she testified, 
in seeming contradiction to the victim, that the victim claimed to have seen Sanders 

and Renode in the car, with a gun in Renode’s hand, claiming that he would “come 

back and kill you and your family, your mother, as well as [the child’s] * * * family.” 

Although the victim testified and denied hearing any voices coming 

from the car, that contradiction did not call the verdict into question. The victim 

plainly identified both Sanders and Renode, an identification that was credible 

because of his familiarity with them and interaction with them on the night the child 

died. This familiarity mitigated concerns about any inconsistencies in portions of 

the witnesses’ testimony. 

In addition to the strength of the victim’s identification, other 

evidence made for a strong circumstantial case against Sanders. Renode and 

Sanders left the house at some point before the mother discovered that her son had 

been stabbed. When the victim later found Sanders and Renode and told them that 

the child was bleeding, Sanders replied that the child was not dead and that he would 

be “okay.” The jury could have viewed the affirmative nature of that statement as 

indicating that Sanders had some prior knowledge of what transpired with the child. 

Renode’s rapid departure after seeing the child’s condition (“I have to get out of 

here”) suggested a consciousness of guilt. By returning to the area where the 

stabbing occurred and shooting at the victim who had knowledge of statements 

made by both Sanders and Renode in connection with the stabbing, the act of firing 

shots at the victim could be viewed as an attempt to intimidate him into silence. 

Even more indicative of a consciousness of guilt was evidence that Sanders and 
Renode left the state as warrants were issued for their arrest in the course of the 

investigation into the child’s death. They were arrested six months later, under 

circumstances in which Renode had to be apprehended with the use of force. 

There were, as in many criminal cases, inconsistencies in how 

witnesses testified. It was for the jury to “believe or disbelieve any witness or accept 

part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 

197 N.E.2d 548 (1964). This is not the exceptional case where the evidence weighs 

heavily against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 

541 (1997). 

III. Prosecutorial Misconduct 

Sanders complains that the state engaged in misconduct by referring 

to the child’s death as a “murder” without actually proving that the child died as a 

result of a homicide. She also complains that the state improperly referenced facts 

not in evidence and vouched for the credibility of its witnesses. 

For reasons previously stated, we reject Sanders’s argument that the 

state improperly referred to the child’s death as the result of a “murder” while 

examining witnesses. In any event, referring to the child’s death as a “murder” was 

acceptable as a euphemism for “foul play” in this particular case and a fair 

characterization of the evidence based on unrebutted testimony that the child died 

after being stabbed in the neck while seemingly asleep. There was no rational basis 

to believe that the child died as a result of any accident, particularly when he had 

been wrapped in a quilt, possibly to hide his injuries. 
Sanders’s next argument references testimony by the victim’s 

girlfriend that she saw a text message from the mother’s fiancé stating that “I know 

what happened that night.” This text message came to light during trial, and, after 

the girlfriend had testified for the state, Sanders recalled the girlfriend as a witness. 

During Sanders’s closing argument, defense counsel referenced the girlfriend’s 

testimony and questioned why she had not been contacted by police detectives until 

the eve of trial. In response to defense counsel’s assertion that the police did not 

contact the girlfriend, the assistant prosecuting attorney stated: “So [defense 

counsel] says that [the girlfriend] wasn’t contacted. I think you’ll remember the 

testimony was that her mother did not want her to be a part of this. But we did find 

her in time for trial. Again he wants you to trust her but ignore her honest and deepheld belief that defendant was in that car.” Defense counsel objected, and the court 

sustained the objection. Sanders now argues that the state improperly vouched for 

the truthfulness of its own witness. 

“It is improper for an attorney to express his or her personal belief or 

opinion as to the credibility of a witness or as to the guilt of the accused.” State v. 

Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). By charactering the 

girlfriend’s belief that Sanders was in the car as “honest,” the state arguably 

expressed an opinion on her credibility. Nevertheless, the court sustained Sanders’s 

objection and later instructed the jury that closing arguments were not evidence and 

that the jury should not speculate on why the court sustained any objection. This 
limited the potential for prejudice from any misconduct. State v. Dean, 146 Ohio 

St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 250, 253. 

In a different part of its closing argument, the state noted that 

Sanders’s attempt to intimidate the witnesses did not stop those witnesses from 

coming to court and “telling you the truth.” Sanders did not object to this statement, 

so she forfeited all but plain error. Dean at ¶ 237. Unlike the state’s statement that 

the girlfriend was “honest,” the statement that the witnesses came to court for the 

purpose of “telling you the truth” did not vouch for the credibility of any specific 

statement. There is enough difference in the semantic content of the statement that 

it did not vouch for the witness’s credibility and rise to the level of plain error. 

IV. Allied Offenses 

For her final assignment of error, Sanders maintains that the 

sentences for felonious assault, improper handling of a firearm in a motor vehicle, 

and discharge of a firearm near a prohibited premises should have merged because 

they all occurred simultaneously. 

During sentencing, the court referenced all of the counts on which the 

jury returned a guilty verdict and stated, “[i]t’s my understanding that none of those 

counts would merge for purposes of sentencing; is that correct?” The state replied, 

“yes”; defense counsel said nothing. By failing to object, Sanders forfeited all but 

plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, 

¶ 21. 
Even if some plain error in failing to merge the sentences occurred, 

an appellate court is not obligated to reverse. The application of the plain error 

doctrine should only be applied “‘under exceptional circumstances and only to 

prevent a manifest miscarriage of justice.’” Id. at ¶ 23, quoting State v. Long, 53 

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The court 

imposed a total 15-year sentence on the felonious assault count, including 

mandatory consecutive time for three- and five-year firearm specifications. The 

sentences for the remaining counts were ordered to be served concurrently. The 

order of concurrent service means that recognition of plain error would not affect 

the length of Sanders’s sentence. No manifest miscarriage of justice would occur if 

the counts were not merged. 

Judgment affirmed.