[Cite as State v. Garcia-Rodriguez, 2022-Ohio-4283.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111038

v. :

WILFREDO GARCIA-RODRIGUEZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 1, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-18-625204-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kevin R. Filiatraut, Assistant Prosecuting 

Attorney, for appellee.

Edward M. Heindel, for appellant.

MARY EILEEN KILBANE, P.J.:

Defendant-appellant Wilfredo Garcia-Rodriguez (“GarciaRodriguez”), appeals from his convictions and sentencing following a jury trial. For 

the following reasons, we affirm.
Factual and Procedural History

On January 26, 2018, in Cuyahoga C.P. No. CR-18-625204-A, a 

Cuyahoga County Grand Jury indicted Garcia-Rodriguez on one count of aggravated 

murder in violation of R.C. 2903.01(B), one count of aggravated murder in violation 

of R.C. 2903.01(A), one count of aggravated burglary in violation of R.C. 

2911.11(A)(1), one count of aggravated robbery in violation of R.C. 2911.01(A)(3), 

one count of aggravated robbery in violation of R.C. 2911.01(A)(1), two counts of 

kidnapping in violation of R.C. 2905.01(A)(2), one count of kidnapping in violation 

of R.C. 2905.01(A)(3), and one count of having weapons while under disability in 

violation of R.C. 2923.13(A)(2). Except for the charge of having weapons while 

under disability, the charges carried one- and three-year firearm specifications, 

notice of prior conviction specifications, and repeat violent offender specifications.

On January 31, 2018, Garcia-Rodriquez pleaded not guilty to the 

indictment. On July 31, 2018, the court granted a motion to appoint an interpreter 

on behalf of Garcia-Rodriguez. On September 11, 2018, the trial court referred 

Garcia-Rodriguez for an evaluation by the court psychiatric clinic. On April 16, 

2019, a plea offer was placed on the record. On August 1, 2019, Garcia-Rodriguez 

filed a motion for an independent psychological evaluation and appointment of a 

specific psychologist to assist in his defense. On August 6, 2019, the trial court 

denied Garcia-Rodriguez’s request for a specific psychologist but granted his request

to undergo a supplemental psychological evaluation with the court psychiatric clinic. 
On November 19, 2019, following a hearing, the trial court found Garcia-Rodriguez 

competent to stand trial.

Between March 2, 2020, and January 22, 2021, the court observed 

Covid-19 protocols, granted continuances on pretrial hearings and trial dates, and 

held pretrial hearings. On April 6, 2021, Garcia-Rodriguez filed a motion to 

suppress the videotaped recordings of his custodial interrogations that took place 

on January 16, 2018, and January 17, 2018. On June 7, 2021, the court held a 

hearing on the motion to suppress, and the court subsequently denied GarciaRodriguez’s motion.

On September 13, 2021, Garcia-Rodriguez waived his right to a jury 

trial on Count 9, having weapons while under disability charge, and the repeat 

violent offender and notice of prior conviction specifications associated with Counts 

1 through 8 of the indictment. On the same date, the case proceeded to a jury trial 

on the remaining charges. 

The charges against Garcia-Rodriguez arose from an incident on 

January 7, 2018, that resulted in the murder of James Dowell (“Jimbo”). The 

following summaries describe the trial testimony offered by the participants, 

witnesses, and investigating officers.

E.R.

Garcia-Rodriguez lived with his girlfriend, Cassandra Roman, and

her family members including her 14-year-old son E.R. E.R. considered Garcia-
Rodriguez a father-figure until several months prior to this incident when their 

relationship began to deteriorate due to Garcia-Rodriguez’s use of crack cocaine.

E.R. testified that as he walked home from his cousin’s house on 

January 7, 2018, he observed his mom’s car parked in the driveway of a house he 

passed. E.R. did not know who lived at the home, but he knocked on the front door 

to inquire why his mom’s car was parked there. Garcia-Rodriguez answered the 

door; Garcia-Rodriguez was accompanied by another man, Tito.

1

 This was E.R.’s 

first encounter with Tito although he may have observed Tito with Garcia-Rodriguez 

on a few prior occasions. Both Garcia-Rodriguez and Tito were dressed in black and 

wore gloves. Garcia-Rodriguez informed E.R. that the men planned to rob Jimbo. 

The men instructed E.R. to get into Tito’s green Honda Accord because he could help 

them with the robbery.

Inside the car, Tito sat in the driver’s seat with Garcia-Rodriguez in 

the front passenger seat and E.R. in the rear seat. Tito pointed a baby blue gun at 

E.R. and threatened to kill his family if E.R. told anyone about the robbery. Tito 

gave E.R. ten dollars with which he was to purchase marijuana from Jimbo. E.R.

knew Jimbo both as a family friend with whom E.R. had been acquainted with since 

he was five years old and as E.R.’s marijuana dealer. Tito drove to Jimbo’s house 

and parked in the alley behind the home. E.R. denied that he or anyone else called 

Jimbo as they drove to Jimbo’s home.

1 Tito’s given name is Juan Burgos-Delgado.
Garcia-Rodriguez instructed E.R. to knock on Jimbo’s back door, 

enter the house, and purchase marijuana. E.R. knocked at the back door, and Jimbo 

permitted him entry to the house. A female friend of Jimbo’s, Savannah Alley 

(“Savannah”), was also present in the kitchen. As E.R. handed Jimbo money for the 

drugs, Garcia-Rodriguez and Tito entered the back door wearing face masks and 

carrying guns.

Garcia-Rodriguez and Tito ordered Jimbo, Savannah, and E.R. to get 

on the ground. Garcia-Rodriguez pointed his gun at Jimbo and demanded he hand 

over marijuana and money. Garcia-Rodriguez and Jimbo fought over possession of 

the gun while Tito stood to the side and pointed his gun at Jimbo. During the 

struggle between Garcia-Rodriguez and Jimbo, Garcia-Rodriguez’s gun was pointed 

at E.R. which caused E.R. to stand up and lean against the wall. Garcia-Rodriguez’s 

gun went off although no one was shot. Savannah stood up and ran from the room. 

Tito picked up Garcia-Rodriguez’s gun from the ground, pistol-whipped Jimbo and 

shot Jimbo twice with that gun — once in the upper arm and once in the head. E.R.

testified that at some point, Tito removed a roll of duct tape from his pocket and 

attempted to wrap tape around Jimbo’s arm. E.R. also testified that while these acts 

took place, Garcia-Rodriguez and Tito spoke in Spanish, which E.R. did not 

understand. 

After Tito shot Jimbo, Tito pointed the gun at E.R. and told him to 

grab the marijuana bag from the kitchen table and get in the car. E.R. complied with 

those demands. E.R. gave conflicting testimony as to how Tito and Garcia-
Rodriguez left the house. E.R. initially stated that he left first, followed by Tito 

holding the gun and then Garcia-Rodriguez. E.R. later testified that GarciaRodriguez left the house first followed by himself and then Tito.

Tito drove the three individuals from Jimbo’s house back to Tito’s 

house. E.R. described Tito as “very excited” during the drive while Garcia-Rodriguez 

sat quietly. Upon arriving at Tito’s home, E.R. exited the car, walked home, and 

never spoke with anyone about the events that took place at Jimbo’s home until 

January 16, 2018, when E.R. was approached by the police.

On January 16, 2018, Cleveland Police Detective Jody Remington 

(“Detective Remington”) and FBI Special Agent Brian Young (“Agent Young”) 

questioned E.R. at his school. E.R. testified that he was not initially honest with 

Detective Remington and Agent Young because he was scared, he wanted to protect 

Garcia-Rodriguez, and he feared Tito. E.R.’s lies included statements that he did 

not know Tito or maybe he had seen him around; that Garcia-Rodriguez and Tito 

picked E.R. up while he was walking and he thought they were going to Jimbo’s to 

buy marijuana; that E.R. called Jimbo from his friend’s home; that E.R. was lying 

face-down during the robbery and he did not see anything; and that E.R. never saw 

Tito’s face unmasked. After being questioned and returning home, E.R. told GarciaRodriguez that he had spoken with Detective Remington and Agent Young. GarciaRodriguez contacted the police, and both Garcia-Rodriguez and E.R. turned 

themselves into the police that night.
E.R. was charged with and pled guilty to murder. As part of the plea 

agreement, the state agreed not to attempt bindover, which could result in E.R.

being tried in adult court, and E.R. agreed to testify against Garcia-Rodriguez and 

Tito. E.R.’s probation was dependent upon his trial testimony.

Savannah Alley

Savannah testified that she was Jimbo’s best friend and she 

accompanied him daily when he sold marijuana either outside or inside his home. 

On January 7, 2018, Savannah and Jimbo were completing drug sales outside his 

house when Jimbo received a phone call from E.R.. E.R. wanted to meet Jimbo at 

his home and purchase marijuana. Jimbo and Savannah smoked marijuana on their 

way back to Jimbo’s home; Savannah was high during the events that occurred that 

evening.

While Savannah and Jimbo were in the kitchen, E.R. knocked at the 

back door and Jimbo let him into the house. Jimbo asked E.R. where GarciaRodriguez was, and E.R. stated he did not know. Savannah had seen Jimbo sell 

marijuana previously to Garcia-Rodriguez, and on one such occasion, E.R. was with 

Garcia-Rodriguez. While Jimbo weighed marijuana at the kitchen table, two 

masked men entered the house. Savannah did not identify the men but 

differentiated them by describing one as chubby and the other as skinny. Savannah 

testified the skinny assailant’s build was comparable to Garcia-Rodriguez’s build.

Upon the men’s entry into the house, the chubby assailant put 

Savannah’s hands behind her back, a gun to her head, and forced her to the ground. 
E.R. stood in the kitchen as Jimbo fought with the skinny man. The two assailants 

spoke in Spanish and English to each other. She heard Jimbo state, “Gyto, why are 

you doing this to me” and “Gyto, why would you do this to me, and we’re family.” 

Gyto is Garcia-Rodriguez’s nickname. 

Savannah testified that one of the men pistol-whipped Jimbo and 

Jimbo continued to struggle with his captors. The assailants attempted to duct tape 

Jimbo. While Jimbo and Savannah were both on the ground and both captors were

struggling with Jimbo, the first gunshot was fired. Savannah promptly stood up, ran 

out of the room, and hid in the bedroom behind the television set. Savannah heard 

a couple of additional gunshots, but she did not see who shot Jimbo. After she heard 

the assailants’ car drive away, Savannah left her hiding place and discovered Jimbo’s 

body lying in a pool of blood on the kitchen floor.

After the police arrived, Savannah was interviewed at the Justice 

Center. Savannah told the police that she observed two guns — a light blue one and 

a dark blue one. She also informed the interrogating officer that “I’m going to be 

remembering things from here on out, I’m going to be remembering things I may 

not remember right now, but I’m going to remember things.” Tr. 581. Savannah 

testified that immediately after Jimbo’s death, his family suspected Savannah’s 

involvement with the robbery and murder although she does not think they still hold 

those beliefs.
Garcia-Rodriguez

Garcia-Rodriguez testified that he was born in Puerto Rico where he 

completed the ninth grade. Garcia-Rodriguez’s first language is Spanish, and he 

claimed to speak very little English. Garcia-Rodriguez was previously convicted in

criminal cases in Ohio for which he served four years in prison. Garcia-Rodriguez 

stated that he lived with E.R. and his family for almost two years prior to Jimbo’s 

death. Garcia-Rodriguez considered E.R. a son to him. Jimbo was a family friend 

to E.R. and his family, but Garcia-Rodriguez knew him mainly as his supplier of 

marijuana.

Garcia-Rodriguez initially testified that he first met Tito when GarciaRodriguez was tattooing a mutual friend of theirs. At that encounter, GarciaRodriguez agreed to complete construction work at Tito’s home. At a later date, 

Garcia-Rodriguez went to Tito’s home where he began the construction work. While 

Garcia-Rodriguez worked, Tito wore a large, green gun around his waist and asked 

Garcia-Rodriguez about his family in Puerto Rico. Tito informed Garcia-Rodriguez 

that he had killed Garcia-Rodriguez’s cousin in Puerto Rico and, if Garcia-Rodriguez 

told anyone about the incident, Tito would also kill him. Garcia-Rodriguez took the 

threat seriously. Tito followed Garcia-Rodriguez around the house and eventually 

took Garcia-Rodriguez to the basement where he and Tito smoked crack cocaine. 

Garcia-Rodriguez testified that Tito then “transformed into a real threat” as he 

wielded his gun as well as a stick and sword and continued to threaten GarciaRodriguez. Garcia-Rodriguez did not feel that he could leave Tito’s home.
While in the basement, Garcia-Rodriguez heard knocking on the 

house door. Garcia-Rodriguez answered the door and saw E.R. standing there. 

Garcia-Rodriguez stepped outside, and Tito followed behind, brandishing his gun. 

Garcia-Rodriguez informed Tito he needed to go home, but Tito told him he needed 

to pay him money for the drugs Tito had provided to Garcia-Rodriguez. 

Tito forced E.R. and Garcia-Rodriguez into his green Honda Accord; 

pointed the gun at E.R.; and threatened to kill E.R. if he told anyone about their 

actions. Tito then mentioned for the first time that he was going to take GarciaRodriguez to Jimbo’s. After arriving at Jimbo’s home, an approximate seven or 

eight minute drive, Tito parked the car towards the back of the house, pulled out 

another handgun, handed a ski hat without eye holes to Garcia-Rodriguez, and told 

Garcia-Rodriguez that he had to steal marijuana from Jimbo in repayment of the 

money he owed Tito. Tito threatened to kill both Garcia-Rodriguez and E.R. if 

Garcia-Rodriguez did not comply.

After E.R. exited the vehicle, Tito handed Garcia-Rodriguez a 

nonoperational, blue gun and stated “pick this gun, this gun gets stuck sometimes.” 

Tr. 977. Garcia-Rodriguez testified that this was the Kimber gun that was 

introduced at trial. Tito handed E.R. money and instructed him to enter Jimbo’s 

home ahead of the other two men. E.R. complied with Tito’s directives as GarciaRodriguez and Tito stood outside Tito’s vehicle. Tito stood behind Garcia-Rodriguez 

with his gun pointed at his rib cage and pushed Garcia-Rodriguez to enter the home. 

Garcia-Rodriguez thought Tito would kill him.
At trial, Garcia-Rodriguez offered varying versions of what occurred

after they entered Jimbo’s home. He initially stated that Tito pushed GarciaRodriguez out of the way and Jimbo and Garcia-Rodriguez stumbled to the ground. 

Tito threw Savannah to the ground and pointed his gun at her. Tito told GarciaRodriguez to ask Jimbo where the marijuana was located. Jimbo would not state 

the marijuana’s location so Tito pistol-whipped Jimbo and then tried to restrain 

Jimbo with duct tape. Garcia-Rodriguez denied that he attempted to duct tape 

Jimbo and testified his DNA was on the tape because he handled duct tape while 

working at Tito’s house.

Garcia-Rodriguez also testified that as he entered the house, Jimbo 

grabbed him and they both fell to the ground. When Garcia-Rodriguez landed on 

the ground, he lost control of the gun. Tito grabbed the gun and put it in his pantwaist area. Then, while Garcia-Rodriguez and Jimbo were on the ground, Tito used 

his green gun to shoot Jimbo twice. Tito grabbed the bag of marijuana on the 

kitchen table and ordered Garcia-Rodriguez and E.R. to get in his car.

After Jimbo was shot and the men left the house, Garcia-Rodriguez 

testified that Tito, Garcia-Rodriguez, and E.R. returned to Tito’s home where Tito

took them to the basement. Tito threatened to kill them and their families if they 

spoke about the robbery or murder. During the week or so following the robbery 

and murder, Tito drove by Garcia-Rodriguez’s home and yelled “are you doing 

okay.” Garcia-Rodriguez testified that this was slang for Puerto Ricans that meant 

if you say something you are not supposed to repeat, you will be killed.
On January 16, 2018, E.R. told Garcia-Rodriguez that he had spoken

with detectives at school who said they would protect them from Tito. GarciaRodriguez testified that he coincidentally ran into his adult son, Christian, and asked 

him to serve as a translator with the detectives. Garcia-Rodriguez testified that he 

wanted to speak with the detectives because he was concerned that they were being 

threatened by Tito and he knew Tito killed Jimbo. Upon meeting the detectives at a 

designated location, Garcia-Rodriguez and E.R. were handcuffed and taken into 

custody.

Garcia-Rodriguez testified that the officers promised to protect him 

and his family from Tito if he cooperated with them. Garcia-Rodriguez testified he 

“felt forced to cooperate.” Garcia-Rodriguez stated he consumed marijuana and 

cocaine prior to his arrest and was under the effects of drugs during the January 16, 

2018 interrogation and, therefore, he answered all of the detectives questions in the 

affirmative. Garcia-Rodriguez also testified that he told the detectives he spoke poor 

English but they still asked questions and he answered them.

At trial, Garcia-Rodriguez denied he went to Jimbo’s with the 

intention of robbing Jimbo and denied previously telling the police during his 

custodial interrogations that he wanted the marijuana from Jimbo’s home.

The Cleveland Division of Police (“CPD”) videotaped GarciaRodriguez’s January 16, 2018 and January 17, 2018 custodial interrogations and the 

state presented those recordings during trial to impeach Garcia-Rodriguez’s trial 

testimony.
Detective Raymond Diaz

Detective Raymond Diaz (“Detective Diaz”), a homicide detective 

with CPD, testified that he investigated Jimbo’s homicide along with Detective 

Remington and Special Agent Young. Detective Diaz interviewed Savannah and 

collected evidence. CPD learned the street names of the individuals that may have 

been involved in the crimes: Gyto and Tito. With Savannah’s assistance, CPD 

obtained information on Gyto and E.R. on Facebook and determined GarciaRodriguez’s street name was Gyto.

Detective Diaz testified that Detective Remington and Special Agent 

Young interviewed E.R. at school on January 16, 2018. Following that interview, the 

CPD obtained a warrant to arrest Garcia-Rodriguez. Before they could arrest him, 

Garcia-Rodriguez contacted Detective Remington and requested to meet with her. 

The CPD met with Garcia-Rodriguez and E.R. at a predetermined location, and the 

two individuals were arrested without incident. 

Detective Diaz testified that Garcia-Rodriguez was interviewed on

January 16, 2018, and was interviewed again the following day by a Spanishspeaking officer and Detective Remington. The first interview was conducted in 

English by Detective Diaz and Special Agent Young, who do not speak Spanish. 

Garcia-Rodriguez told Detective Diaz and Special Agent Young that if he was spoken 

to slowly, he could understand English. Detective Diaz testified that GarciaRodriguez “seemed to be answering the questions that I asked.” However, because 

English was Garcia-Rodriguez’s second language, CPD arranged for a second 
interview with a Spanish-speaking officer. During his interview of GarciaRodriguez, Detective Diaz learned of Tito’s identity and the allegation that Tito shot 

Jimbo.

Diaz testified that Tito was arrested and his home was searched 

pursuant to a warrant. During the search, CPD found a green Honda Accord in the 

driveway. In the house, they recovered the following items: a Kimber gun; a 

magazine that contained eight live 33 by 53 rounds, which are the same caliber of 

the two spent or fired casings recovered at the homicide; three rolls of unopened 

blue duct tape; and an open roll of blue duct tape in the garage that later was tested 

and found to contain DNA of Jimbo, Tito, and Garcia-Rodriguez.

Detective Michael Shay

Detective Michael Shay (“Detective Shay”), a crime scene unit 

detective, testified he was on scene at Jimbo’s house on January 7, 2018. In Jimbo’s 

kitchen, he observed a drug scale commonly used to weigh drugs and marijuana 

residue on the scale. Detective Shay observed a spent cartridge case on the kitchen 

floor; a spent cartridge case on top of the washing machine; duct tape on the floor 

near Jimbo’s feet; an additional roll of duct tape with a piece removed and crumpled; 

and a bullet recovered from under Jimbo’s body. In the alley behind Jimbo’s home, 

Detective Shay photographed two areas of suspected blood in the snow; a knit winter 

hat without eye holes; and discarded duct tape in the street.
Detective Jerome Krakowski

Detective Jerome Krakowski (“Detective Krakowski”) responded to 

Jimbo’s home and secured the scene. Upon arrival, he observed Savannah whom

he described as frantic, emotional, and obviously distraught. The state introduced 

Detective Krakowski’s body camera footage at trial.

Dr. Joseph Felo

Dr. Joseph Felo (“Dr. Felo”), the Chief Deputy Medical Examiner for 

Cuyahoga County, observed Jimbo’s body at his house and subsequently performed 

the autopsy. According to Dr. Felo, Jimbo died from a gunshot wound that entered 

the back of his head and exited above his right eye. He also had a nonlethal gunshot 

wound that went through his right upper arm. Jimbo suffered nonlethal blunt 

injuries on his head, arms, and legs that were sustained before the time of death. 

The injuries to Jimbo’s head were consistent with blows from a fist or being struck 

by a pistol handle or the side of the handgun’s muzzle. Felo conceded Jimbo’s

injuries could have also been sustained hitting the floor, a wall, or a piece of 

furniture. Felo noted stipple wounds on the left side of Jimbo’s face and in front of 

his left ear indicating that a handgun was discharged in close proximity to the left 

side of his face. Felo stated it was possible the stippling occurred when the decedent 

lifted his arm in a defensive movement, but he could not make that conclusion with 

any degree of scientific certainty. Toxicology results showed Jimbo was under the 

influence of marijuana at the time of his death.
Curtiss Jones

Curtiss Jones (“Jones”) testified as to his work as the supervisor of 

the Trace Evidence Unit with the Cuyahoga County Medical Examiner’s forensic 

laboratories. Jones testified that the discarded duct tape sections found at the crime 

scene could have come from the roll of duct tape found in Tito’s house, but he could 

not determine that with any certainty.

Lisa Moore

Lisa Moore (“Moore”), a DNA analyst for the county, testified that 

Jimbo’s and Garcia-Rodriguez’s DNA was found on the roll of gray duct tape; this 

item did not contain DNA of Tito. The recovered section of blue duct tape contained 

Jimbo’s DNA. The blood stains in the snow contained Jimbo’s DNA. The blue duct 

tape recovered by the police on January 19, 2018, from Tito’s home contained DNA 

from Tito, Jimbo, and Garcia-Rodriguez, with their respective contribution to the 

DNA being approximately 50%, 30%, and 20%. The knit cap recovered outside 

Jimbo’s home contained Garcia-Rodriguez’s DNA. The baggie of suspected 

narcotics recovered from Tito’s house contained Tito’s DNA.

Kristen Koeth

Kristen Koeth (“Koeth”) was employed as a firearm tool mark 

examiner in the firearms section of the Cuyahoga County Regional Forensic Science 

Laboratory. Koeth completed firearm testing on the evidence related to Jimbo’s 

homicide.
Koeth analyzed two spent cartridge cases, one fired bullet, and one 

damaged bullet collected from Jimbo’s home. Koeth also analyzed a blue-green 

colored Kimber Special Edition pistol with a six-round magazine containing six auto 

caliber cartridges, an eight-round magazine containing eight Tokarev caliber 

cartridges, and a box of 49 auto caliber cartridges collected from Tito’s home.

Koeth’s conclusions, within a reasonable degree of scientific certainty 

within the field of tool mark and firearm examination, included (1) the two spent 

cartridge cases were fired by the same Tokarev caliber firearm; (2) she could not

state whether the fired bullet came from either of the spent cases; (3) the Kimber 

gun could not have fired the Tokarev cartridges nor the two spent cartridge cases or 

bullet that were recovered at Jimbo’s home; (4) three live rounds recovered from the 

eight-round magazine were cycled through the same firearm as the two spent 

cartridge cases found at the crime scene; and (5) Koeth was not provided a handgun 

that could have fired the Tokarev rounds.

Following the state’s case-in-chief, Garcia-Rodriguez made a Crim.R. 

29 motion that the court denied. On September 23, 2021, Garcia-Rodriguez was 

found guilty of Count 1, murder — the lesser included offense — in violation of R.C. 

2903.02(B), and the notice of prior conviction and repeat violent offender 

specifications; Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1), a 

felony of the first degree, with one- and three-year firearm specifications, notice of 

prior conviction specifications, and repeat violent offender specifications; and Count 

9, having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony 
of the third degree. Garcia-Rodriguez was found not guilty on all other charges. The 

court referred Garcia-Rodriguez to the probation department for a presentence 

investigation report.

On October 28, 2021, the court sentenced Garcia-Rodriguez to life 

with parole eligibility after serving 15 years on Count 1; 11 years on Count 3; and 36 

months on Count 9, for a total of 29 years to life. Count 3’s one-year firearm 

specification merged into the three-year firearm specification, and the three-year 

firearm specification was to be served prior to and consecutive to Count 3’s base 

charge. Counts 1 and 3 were to be served consecutively to each other, and Count 9 

was to be served concurrently to Counts 1 and 3. The court addressed post-release 

control, the R.C. 2929.12 statutory requirements on consecutive sentencing, and the 

right to appeal.

On November 22, 2021, Garcia-Rodriguez filed a timely appeal 

presenting seven assignments of error for our review:

Assignment of Error 1. The trial court erred in denying Appellant’s 

motion to suppress statements when the police failed to secure an 

interpreter in contravention of its own policies.

Assignment of Error 2. The trial court erred by failing to grant a 

judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and 

thereafter entering a judgment of conviction of those offenses as those 

charges were not supported by sufficient evidence, in violation of 

defendant’s right to due process of law, as guaranteed by the 

Fourteenth Amendment to the United States Constitution.

Assignment of Error 3. Appellant’s convictions are against the manifest 

weight of the evidence.
Assignment of Error 4. The trial court infringed upon and violated 

Appellant’s right to remain silent and right not to testify when it told 

the jury that it depends on the strength of the State’s evidence.

Assignment of Error 5. The trial court erred by ordering convictions 

and a separate sentence for separate counts because the trial court 

failed to make a proper determination as to whether those offenses are 

allied offenses pursuant to R.C 2941.25 and they are part of the same 

transaction under R.C. 2929.14.

Assignment of Error 6. The trial court erred by ordering Appellant to 

serve a consecutive sentence without making the appropriate findings 

required by R.C. 2929.14 and HB 86. 

Assignment of Error 7. The trial court erred by imposing an improper 

sentence on the murder count.

Legal Analysis

I. Motion to Suppress

In Garcia-Rodriguez’s first assignment of error, he argues that the 

trial court erred when it denied the motion to suppress his two statements secured 

by CPD on January 16, 2018, and January 17, 2018. Specifically, Garcia-Rodriguez’s 

primary language is Spanish; his Miranda rights and the January 16, 2018 

statement were secured by an English-speaking officer in English. GarciaRodriguez argues that due to his lack of comprehension of the English language, he 

did not voluntarily and knowingly waive his Miranda rights before submitting to the 

January 16 custodial interrogation. Garcia-Rodriguez further argues that even 

though Detective Beverly Fraticelli (“Detective Fraticelli”) participated as a Spanish

interpreter during the January 17 custodial interrogation, that discussion was a 

continuation of the January 16 interrogation and, therefore, as a “fruit of the 
poisonous tree” it also should have been suppressed by the trial court. GarciaRodriguez also argues that the use of Detective Fraticelli as an interpreter during his 

January 17, 2018 custodial interrogation created a conflict of interest. Specifically, 

Garcia-Rodriguez argues that an independent translator is a neutral party whereas 

a police officer, acting as a translator, could tailor Garcia-Rodriguez’s answers to 

facilitate the state’s case. Garcia-Rodriguez also argued at the motion to suppress 

hearing that CPD violated a general police order that required the provision of a 

professional translator during a custodial interrogation where the interviewee’s legal 

rights might otherwise be adversely affected. Garcia-Rodriguez argued that as a 

Spanish-speaking individual, he needed a professional interpreter present to 

adequately protect his rights. 

The standard of review on a motion to suppress is as follows:

“Appellate review of a motion to suppress presents a mixed question of 

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 

797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, “the trial court 

assumes the role of trier of fact and is therefore in the best position to 

resolve factual questions and evaluate the credibility of witnesses.” Id., 

citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On 

appeal, we “must accept the trial court’s findings of fact if they are 

supported by competent, credible evidence.” Id., citing State v. 

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). Accepting these facts 

as true, we must then “independently determine as a matter of law, 

without deference to the trial court’s conclusion, whether they meet the 

applicable legal standard.” Id., citing State v. McNamara, 124 Ohio 

App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

State v. Jallah, 8th Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 75.

“The Fifth Amendment to the United States Constitution and Article 

I, Section 10, of the Ohio Constitution guarantee that no person in any criminal case 
shall be compelled to be a witness against himself.” State v. Jackson, 2d Dist. 

Greene No. 02CA0001, 2002-Ohio-4680, ¶ 19, citing Dickerson v. United States, 

530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Additionally, the U.S. 

Supreme Court in Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 

694 (1966), found a suspect in police custody “‘must be warned prior to any 

questioning that he has the right to remain silent, that anything he says can be used 

against him in a court of law, that he has the right to the presence of an attorney, 

and that if he cannot afford an attorney one will be appointed for him prior to any 

questioning if he so desires.”’ State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 

853 N.E.2d 279, ¶ 6, quoting Miranda at 479.

To waive one’s Miranda rights, the waiver must be knowingly, 

intelligently, and voluntarily made. Miranda at 444. The state must demonstrate 

by a preponderance of the evidence and based on the totality of the circumstances

that a defendant knowingly, intelligently, and voluntarily waived his Miranda 

rights. State v. Moore, 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 62 (8th Dist.), citing 

State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995). “The totality of the 

circumstances includes ‘the age, mentality and prior criminal experience of the 

accused; the length, intensity, and frequency of interrogation; the existence of threat 

or inducement.’” Moore at ¶ 62, quoting State v. Campbell, 90 Ohio St.3d 320, 332, 

738 N.E.2d 1178 (2000), quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 

1051 (1976), paragraph two of the syllabus. Without a showing of a voluntary waiver, 

the waiver is invalid and the defendant’s statements should be suppressed. Id.
Under the totality of the circumstances, we find Garcia-Rodriguez’s 

waiver of his Miranda rights was made knowingly, intelligently, and voluntarily. 

Garcia-Rodriguez , a 39-year-old male, was born in Puerto Rico, spoke Spanish as 

his primary language, and later moved to New York and then Ohio. On January 16, 

2018, both the Miranda rights and custodial interrogation questions were presented 

orally, in English, to Garcia-Rodriguez. Garcia-Rodriguez’s responses and actions 

indicated to the detectives that he understood his Miranda rights and understood 

the consequences that would result from his decision to abandon those rights. 

Garcia-Rodriguez admitted to a prior arrest where he was read his Miranda rights; 

due to that prior arrest, Garcia-Rodriguez served four years in prison on burglary

and child endangerment charges. Garcia-Rodriguez initially stated “my English is 

not good” but that he understood the language when spoken slowly. The officers 

questioned Garcia-Rodriguez for over an hour during which time Garcia-Rodriguez 

provided appropriate responses to the posed questions. Garcia-Rodriguez did not 

require the officers to repeat their questions. Some of Garcia-Rodriguez’s responses 

were rambling in nature. Garcia-Rodriguez appeared emotional throughout the 

interview, crying on separate occasions and stating his concern for his family’s safety 

from Tito. The officers offered no promises to Garcia-Rodriguez, although they 

acknowledged that Garcia-Rodriguez feared for his family and, as a result, they 

needed to find Tito and arrest him. Garcia-Rodriguez’s statements indicated he 

knowingly, intelligently, and voluntarily waived his Miranda rights.
Further, since Garcia-Rodriguez knowingly, intelligently, and 

voluntarily waived his Miranda rights during the January 16, 2018 interrogation, 

there is no merit to the argument that the January 17, 2018 interrogation was the 

“fruit of a poisonous tree.” Garcia-Rodriguez did not provide any direct or relevant 

case law to support his contention that the use of a police officer as a translator 

during the second interview created a conflict of interest. And even assuming CPD 

acted in derogation of the general police order that required a professional 

interpreter, the totality of the circumstances demonstrated that those acts did not 

negatively impact Garcia-Rodriguez knowingly, intelligently, and voluntarily 

waiving his Miranda rights. We note that the better practice would have been for 

the CPD to follow the general police order and obtain a professional interpreter for 

Garcia-Rodriguez’s custodial interrogations.

Additionally, we acknowledge that on January 16, 2018, Detective 

Diaz stated at the conclusion of the custodial interrogation that the CPD was going 

to (1) speak with him again in the morning; (2) provide a Spanish-speaking officer; 

and (3) ensure “we are clear on everything. Make it easier.” At the start of the 

January 17, 2018 custodial interrogation, the interviewing officer indicated 

Detective Fraticelli, a Spanish-speaking officer, was present and “we’re not going to 

have any language barrier today.” While these statements suggest the officers could 

have utilized a Spanish interpreter at both custodial interrogations, the 

overwhelming evidence supports our finding that Garcia-Rodriguez knowingly, 

intelligently, and voluntarily waived his Miranda rights.
Based upon the foregoing, we find there was no error as to the trial 

court’s denial of Garcia-Rodriguez’s motion to suppress. Accordingly, we overrule 

Garcia-Rodriguez’s first assignment of error.

II. Sufficiency of the Evidence

In Garcia-Rodriguez’s second assignment of error, he argues that the 

trial court erred when it denied his Crim.R. 29(A) motion for acquittal and entered 

a judgment on the convictions. Specifically, Garcia-Rodriguez argues that the state 

failed to introduce sufficient evidence to support the charges and, therefore, a 

conviction violated his due process rights. Garcia-Rodriguez further argues that 

even if the state established his guilt, duress should have served as a complete 

defense. The state contends that it presented evidence that proved the essential 

elements of each charge and duress is not an appropriate consideration under a 

sufficiency of the evidence review.

A Crim.R. 29(A) motion for acquittal tests the sufficiency of the 

evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Crim.R. 

29(A) requires the trial court to issue a judgment of acquittal where the state’s 

evidence is insufficient to sustain a conviction for the offense. State v. Taylor, 8th 

Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21. We apply the same standard of 

review to evaluate a sufficiency of the evidence claim. Cleveland v. Pate, 8th Dist. 

Cuyahoga No. 99321, 2013-Ohio-5571, ¶ 12, citing State v. Mitchell, 8th Dist. 

Cuyahoga No. 95095, 2011-Ohio-1241, citing State v. Tenace, 109 Ohio St.3d 255, 

2006-Ohio-2417, 847 N.E.2d 386.
Where a party challenges the sufficiency of the evidence supporting a 

conviction, a determination of whether the state has met its burden of production at 

trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, 

¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An 

appellate court reviewing sufficiency of the evidence must determine “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does 

not review whether the state’s evidence is to be believed but whether, if believed, the 

evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. 

Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency 

of the evidence argument is not a factual determination, but a question of law. Id. 

at 386, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).

To survive a Crim.R. 29(A) motion or a sufficiency of the evidence 

challenge, the state had to present sufficient evidence on the elements of felony 

murder such that the trier of fact could find Garcia-Rodriguez guilty of the offense 

beyond a reasonable doubt. The elements of felony murder are defined in R.C. 

2903.02(B): “No person shall cause the death of another as a proximate result of 

the offender’s committing or attempting to commit an offense of violence that is a 
felony of the first or second degree and that is not a violation of section 2903.03 or 

2903.04 of the Revised Code.”

Here, where aggravated burglary was the underlying felony giving 

rise to the felony murder charge, the state also had to present sufficient evidence 

that Garcia-Rodriguez caused Jimbo’s death as a proximate result of the aggravated 

burglary. The elements of aggravated burglary are:

(A) No person, by force, stealth, or deception, shall trespass in an occupied 

structure or in a separately secured or separately occupied portion of an 

occupied structure, when another person other than an accomplice of the 

offender is present, with purpose to commit in the structure or in the 

separately secured or separately occupied portion of the structure any 

criminal offense, if any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical harm on 

another; * * *

R.C. 2911.11(A)(1).

“‘[T]he felony-murder statute, does not contain a mens rea 

component.”’ State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 

77, quoting State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 

43. “[A] person commits felony murder * * * by proximately causing another’s death 

while possessing the mens rea element set forth in the underlying felony offense.” 

Fry at ¶ 43. The mens rea required by an aggravated burglary charge, the underlying 

felony offense in this matter, is “purposeful.” Fry at ¶ 44. 

The evidence at trial established that Tito planned to rob Jimbo of 

marijuana with Garcia-Rodriguez’s assistance. E.R. assisted in the robbery, and first 

entered Jimbo’s home under the guise of wanting to purchase marijuana. After E.R.
entered Jimbo’s house, Garcia-Rodriguez and Tito entered the home, armed and 

without permission, with the intent to rob Jimbo of marijuana. Jimbo and 

Savannah were present when Garcia-Rodriguez and Tito entered the home. Once 

inside, Garcia-Rodriguez attempted to restrain Jimbo while Tito attempted to 

restrain Savannah. Garcia-Rodriguez wrestled with Jimbo as he attempted to 

restrain him and prevent Jimbo from taking his handgun. Tito then pistol-whipped 

Jimbo before he shot and killed Jimbo. Jimbo died as a proximate result of the 

commission of the aggravated burglary.

A defendant may be found guilty of felony murder absent an intent to 

cause the victim’s death. State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 

N.E.2d 498, ¶ 31-33. Under Ohio’s felony-murder doctrine, “‘a defendant may be 

held criminally liable for the unintended death that results from the commission of 

a first or second degree felony.”’ State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-

Ohio-114, ¶ 23, quoting State v. Tuggle, 6th Dist. Lucas No. L-09-1313, 2010-Ohio4162, ¶ 101. Therefore, the state did not have to prove that Garcia-Rodriguez 

knowingly intended to cause Jimbo’s death but that Jimbo’s death was a proximate 

result of the aggravated burglary against Jimbo. Based upon the record, the state 

satisfied its burden. The evidence presented at trial and viewed in a light favorable 

to the state established each element of felony murder under R.C. 2903.02(B) and 

aggravated burglary under R.C. 2911.11(A)(1).

Garcia-Rodriguez also argues that sufficient evidence was introduced 

to show Garcia-Rodriguez acted under duress. Specifically, Garcia-Rodriguez 
argues he committed the criminal offenses under duress because Tito expressly

threatened his life and the life of E.R. during the commission of the felony murder 

and aggravated burglary. A defendant may raise duress as an affirmative defense to 

any crime except aggravated murder. State v. Hall, 4th Dist. Ross No. 13CA3391, 

2014-Ohio-2959, ¶ 54. However, a sufficiency challenge does not implicate 

affirmative defenses. State v. Simes, 8th Dist. Cuyahoga No. 103672, 2016-Ohio7300, ¶ 20, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 

1032, ¶ 37. “‘Proof supportive of an affirmative defense cannot detract from proof 

beyond a reasonable doubt that the accused had committed the requisite elements 

of the crime.”’ Simes at id., quoting State v. Davis, 8th Dist. Cuyahoga No. 100526, 

2014-Ohio-2769, ¶ 19, citing Hancock at ¶ 37.

Accordingly, the trial court properly denied Garcia-Rodriguez’s 

Crim.R. 29 motion and the convictions were supported by sufficient evidence. 

Garcia-Rodriguez’s second assignment of error is overruled.

III. Manifest Weight of the Evidence

In his third assignment of error, Garcia-Rodriguez argues that his 

convictions were against the manifest weight of the evidence. Specifically, GarciaRodriguez argues that his actions were excused due to duress.

A manifest-weight challenge tests whether the prosecution has met 

its burden of persuasion. Thompkins, 78 Ohio St. 3d at 390, 678 N.E.2d 541, (Cook, 

J., dissenting). A reviewing court “‘weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in 
resolving conflicts in the evidence, the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1st Dist.1983). A reversal on the basis that a verdict is against the 

manifest weight of the evidence is granted “‘only in the exceptional case in which the 

evidence weighs heavily against the conviction.”’ Id., quoting Martin at id.

Garcia-Rodriguez argues that the trial court’s convictions were 

against the manifest weight of the evidence because he presented sufficient evidence 

to support the affirmative defense of duress. The Ohio Supreme Court described 

duress as follows:

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. See State v. Cross (1979), 58 Ohio St. 

2d 482, 487, 12 Ohio Op. 3d 396, 399, 391 N.E.2d 319, 323. The force 

used to compel the actor’s conduct must remain constant, controlling 

the will of the unwilling actor during the entire time he commits the 

act, and must be of such a nature that the actor cannot safely withdraw. 

See State v. Good (1960), 110 Ohio App. 415, 11 Ohio Op. 2d 459, 165 

N.E.2d 28 (10th Dist.).

State v. Getsy, 84 Ohio St.3d 180, 199, 702 N.E.2d 866 (1998).

The burden is on the accused to prove an affirmative defense by a 

preponderance of the evidence. R.C. 2901.05(A). Here, the trial court charged the 

jury regarding the defendant’s defense of duress. Defendant did not object to the 

substance or scope of the charge of duress, thereby waiving any error. State v. Wells, 

8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 97, citing State v. Williams, 51 

Ohio St. 2d 112, 364 N.E.2d 1364 (1977). 
In support of his claim of duress, Garcia-Rodriguez testified that Tito 

carried a gun on January 7, 2018, from the time Garcia-Rodriguez completed 

construction work at Tito’s home, throughout the commission of the offenses at 

Jimbo’s house, and until Garcia-Rodriguez, Tito, and E.R. returned to Tito’s home. 

As a result, Garcia-Rodriguez never thought he could leave Tito’s presence without 

the risk of being shot. And once E.R. appeared at Tito’s home, Garcia-Rodriguez 

testified he could not attempt to leave because E.R. could be in danger of Tito. 

Garcia-Rodriguez testified that he and E.R. were in immediate danger of death or 

seriously bodily injury throughout the commission of the crimes and there was no 

reasonable opportunity for escape. Garcia-Rodriguez argues that he demonstrated 

by a preponderance of the evidence that he acted under duress and, therefore, his

convictions were against the manifest weight of the evidence.

Even assuming that Garcia-Rodriguez asserted the elements of 

duress, the trier of fact was not required to accept his arguments but could reject 

them on the grounds of credibility. State v. Thompson, 97 Ohio App.3d 629, 634, 

647 N.E.2d 226 (12th Dist.1994). The record shows that Garcia-Rodriguez did not 

inform the CPD during his custodial interrogations that he participated in the 

aggravated robbery because of his fear of immediate threat of harm or bodily injury 

from Tito. Garcia-Rodriguez did not inform the questioning officers that Tito 

carried a gun while Garcia-Rodriguez performed construction work in Tito’s house. 

Garcia-Rodriguez testified he did not previously provide this information during 

either interrogation because the exact question was never asked of him.
Garcia-Rodriguez stated during those interrogations that he initially 

thought they were driving to Jimbo’s to purchase marijuana. During the January 17 

interrogation where an interpreter was present, Garcia-Rodriguez also stated he told 

Tito “let’s take the marijuana” from Jimbo. At trial, Garcia-Rodriguez claimed he 

did not mean to make those comments and the officer misunderstood him because 

of his poor English and his “street Spanish.” Garcia-Rodriguez testified that he 

meant to say that he did not want to rob Jimbo but he went to Jimbo’s home because 

Tito wanted to steal the marijuana.

The jury was entitled to reject Garcia-Rodriguez’s version of events as 

they related to duress. After review, we cannot say the record demonstrates that the 

jury’s rejection of the affirmative defense of duress and convictions were against the 

manifest weight of the evidence. Weighing the evidence and all reasonable 

inferences, considering the witnesses’ credibility, and resolving the conflicts in the 

evidence, we do not find that the jury clearly lost its way when it convicted GarciaRodriguez. Accordingly, Garcia-Rodriguez’s third assignment of error is overruled.

IV. Right to Testify

In his fourth assignment of error, Garcia-Rodriguez argues that the 

trial court infringed upon and violated his right to remain silent when the trial judge 

made comments to the jury about Garcia-Rodriguez potentially testifying at trial. 

The state contends there was no violation of Garcia-Rodriguez’s rights to remain 

silent and not testify; Garcia-Rodriguez voluntarily chose to testify in order to obtain 

a jury instruction on the issue of duress.
Garcia-Rodriguez claims the following comments by the trial court 

judge adversely effected his right to remain silent:

Ladies and gentlemen, we’ll take our morning recess. You are not to 

discuss this case among yourselves or allow anyone to discuss it with 

you or in your presence.

Now you might have thought that I did not know the answer to that 

question about the next witness. I did know that was the last one, but 

I wanted to give the State of Ohio a chance to rest on the record.

What happens next is outside of your hearing. We have to go through 

some motions and sort out all of this evidence and make sure it is 

appropriate your consideration and deliberation. Then I’ll go through 

this motion hearing and we go through the process. It may take a half 

an hour, possibly longer. And at that point in time, we’re going to find 

out if the State is satisfied that you’ve heard enough or perhaps their 

client is going to take the stand as was indicated in the opening 

statement. We don’t know.

Once again if he does, God bless him, that’s his opportunity. If he 

doesn’t, that’s his right and we will respect that.

So with that we are in recess for about a half an hour.

(Emphasis added). Tr. 934-935.

Garcia-Rodriguez argues that the trial court violated his rights under 

the Fifth Amendment of the U.S. Constitution that reads, in pertinent part, “No 

person * * * shall be compelled in any criminal case to be a witness against himself 

* * * .” Garcia-Rodriguez also argues that his testimony presented during his

suppression hearing could not be admitted against him at trial on the issue of guilt. 

Based upon the court’s comments, Garcia-Rodriguez contends that he had no option 

but to testify on his own behalf.
Initially, we note that the court’s comments were made after the state

presented its case-in-chief. While the trial court stated the jury would now find out 

if the state felt enough testimony was presented, we assume the court meant to say

“we’re going to find out if the defense is satisfied that you’ve heard enough or 

perhaps their client is going to take the stand as was indicated in the opening 

statement * * *.” (Emphasis added.)

We do not find the trial court’s statements referenced GarciaRodriguez’s suppression hearing testimony nor did they violate Garcia-Rodriguez’s 

right to remain silent. On the contrary, the trial court essentially reiterated the Fifth 

Amendment when it stated Garcia-Rodriguez had a choice to testify on his behalf or

not and the court would respect the defendant’s decision. While unnecessary, the 

court explained that Garcia-Rodriguez had the option to testify.

Thus, Garcia-Rodriguez’s fourth assignment of error is overruled.

V. Allied Offenses

In his fifth assignment of error, Garcia-Rodriguez argues that the trial 

court erred when it failed to merge Count 1, murder, and Count 3, aggravated 

burglary. Specifically, Garcia-Rodriguez argues that the two crimes “occurred in one 

stream of action” so there were no separate victims nor any discernible conduct that 

separated the murder from the aggravated burglary.

The Double Jeopardy Clauses of Article I, Section 10 of the Ohio 

Constitution and the Fifth Amendment to the United States Constitution prohibit a 

criminal defendant from being tried twice for the same offense and “prohibits ‘the 
sentencing court from prescribing greater punishment than the legislature 

intended.’” State v. Pendleton, 163 Ohio St.3d 114, 2020-Ohio-6833, 168 N.E.3d 

458, ¶ 8, quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 

535 (1983). R.C. 2941.25 was enacted so that if “‘“the same conduct by the defendant 

technically amounts to two or more related offenses, he should be guilty of only one 

offense.’”” Id., quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 

N.E.2d 149, ¶ 16, quoting Ohio Legislative Service Commission, Proposed Ohio 

Criminal Code 308 (Mar. 1971).

R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment 

or information may contain counts for all such offenses, but the 

defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of 

dissimilar import or where his conduct results in two or more offenses 

of the same kind or similar kind committed separately or with a 

separate animus as to each, the indictment or information may contain 

counts for all such offenses, and the defendant may be convicted of all 

of them.

The Ohio Supreme Court has clarified that “[i]n determining whether 

offenses are allied offenses of similar import within the meaning of R.C. 2941.25, 

courts must evaluate three separate factors — the conduct, the animus, and the 

import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, 

paragraph one of the syllabus. “Under R.C. 2941.25(B), a defendant whose conduct 

supports multiple offenses may be convicted of all the offenses if any one of the 

following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the 
conduct shows that the offenses were committed separately, or (3) the conduct 

shows that the offenses were committed with separate animus.” Id. at paragraph 

three of the syllabus. Offenses are of dissimilar import “when the defendant’s 

conduct constitutes offenses involving separate victims or if the harm that results 

from each offense is separate and identifiable.” Id. at paragraph two of the syllabus.

A “defendant bears the burden of establishing his entitlement to the 

protection provided by R.C. 2941.25,” and “we appl[y] a de novo standard of review 

in reviewing a trial court’s R.C. 2941.25 merger determination.” State v. Hazley, 2d 

Dist. Montgomery No. 27107, 2016-Ohio-7689, ¶ 16, citing State v. Williams, 134 

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

Garcia-Rodriguez was convicted of Count 1, murder, in violation of 

R.C. 2903.02(B) that provides in relevant part that “[n]o person shall cause the 

death of another as a proximate result of the offender’s committing or attempting to 

commit an offense of violence that is a felony of the first or second degree and that 

is not a violation of section 2903.03 or 2903.04 of the Revised Code.” GarciaRodriguez was also convicted of Count 3, aggravated burglary, in violation of R.C. 

2911.11(A)(1) that provides the following:

(A) No person, by force, stealth, or deception, shall trespass in an occupied 

structure or in a separately secured or separately occupied portion of 

an occupied structure, when another person other than an accomplice 

of the offender is present, with purpose to commit in the structure or 

in the separately secured or separately occupied portion of the 

structure any criminal offense, if any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical 

harm on another.
Here, Garcia-Rodriguez argues that the aggravated burglary and 

murder share the same mens rea and the aggravated burglary and murder were 

committed in one act. Garcia-Rodriguez relies on State v. McKnight, 2022-Ohio591, 185 N.E.3d 1148 (10th Dist.), to support this position. Yet, the McKnight court 

found there is “no overarching rule to the effect that where one offense is predicated 

on the commission of another, with the second essentially being an element of the 

first, the two must automatically merge at sentencing.” Id. at ¶ 33. ‘“Ultimately, if 

the harm resulting from each offense is separate and identifiable, the offenses are of 

dissimilar import and do not merge.”’ McKnight at ¶ 34, quoting State v. Flood, 

10th Dist. Franklin No. 18Ap-206, 2019-Ohio-2524, ¶ 28.

We find it was not appropriate to merge Counts 1 and 3 because the 

offenses are dissimilar in import and resulted in separate and identifiable harms. 

The record reflects that Garcia-Rodriguez committed aggravated burglary when he 

entered Jimbo’s home, wielding a gun, with the purpose to take Jimbo’s marijuana 

and Garcia-Rodriguez inflicted harm and threatened to inflict harm on Jimbo when 

he pointed a gun at Jimbo; forced Jimbo to the ground; and wrestled with Jimbo. 

Garcia-Rodriguez committed felony murder when Tito shot and killed Jimbo during 

the aggravated burglary. Because these offenses are of dissimilar import, GarciaRodriguez’s fifth assignment of error is overruled.
VI. Consecutive Sentences

In his sixth assignment of error, Garcia-Rodriguez argues that the 

imposition of consecutive sentences does not comport with the requirements of R.C. 

2929.14(C)(4) and, therefore, his sentences should be vacated and remanded for 

imposition of concurrent sentences. Specifically, Garcia-Rodriguez argues the trial 

court failed to make the necessary statutory findings during the sentencing hearing 

and in the sentencing journal entry. The state contends that the trial court complied 

with R.C. 2929.14(C)(4) both at the sentencing hearing and when it issued the

corresponding journal entry.

“In Ohio, there is a presumption that prison sentences should be 

served concurrently, unless the trial court makes the findings outlined in R.C. 

2929.14(C)(4) to warrant consecutive service of the prison terms.” State v. Morris, 

2016-Ohio-7614, 73 N.E.3d 1010, ¶ 25 (8th Dist.), citing State v. Primm, 8th Dist. 

Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 64, citing State v. Cox, 8th Dist. Cuyahoga 

No. 102629, 2016-Ohio-20, ¶ 3, and R.C. 2929.41(A). To implement consecutive 

sentences, the sentencing court must find that (1) a consecutive sentence is 

necessary to protect the public from future crime or to punish the offender, and (2) 

the consecutive sentences are not disproportionate to the seriousness of the 

offender’s conduct and to the danger the offender poses to the public. R.C. 

2929.14(C)(4). The court must also find that any one of the following apply:

(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 

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.

R.C. 2929.14(C)(4). A sentencing court’s failure to make the above statutory 

findings is “‘contrary to law.”’ State v. Hendricks, 8th Dist. Cuyahoga No. 101864, 

2015-Ohio-2268, ¶ 12, quoting State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177, 16 N.E.3d 659, ¶ 37.

The sentencing court must make the statutory findings at the 

sentencing hearing and also incorporate the findings into its sentencing entry. 

Hendricks at ¶ 12, citing Bonnell at syllabus. Pursuant to R.C. 2929.14(C)(4), the 

trial court must “find” the relevant sentencing factors before it imposes consecutive 

sentences. Morris at ¶ 26. “However, a word-for-word recitation of the language of 

the statute is not required, and as long as the reviewing court can discern that the 

trial court engaged in the correct analysis and can determine that the record 

contains evidence to support the findings, consecutive sentences should be upheld.”

Bonnell at ¶ 29. 

A reviewing court may overturn the imposition of consecutive 

sentences, under R.C. 2953.08, where the appellate court “clearly and convincingly 
finds that ‘the record does not support the sentencing court’s findings’ under R.C. 

2929.14(C)(4), or the sentence is ‘otherwise contrary to law.’” Hendricks at ¶ 9, 

quoting R.C. 2953.08(G)(2)(a) through 2953.08(G)(2)(b). A defendant may 

challenge consecutive sentences on appeal in two ways: (1) the defendant argues the 

consecutive sentences are contrary to law because the trial court failed to make the 

necessary findings required by R.C. 2929.14(C)(4) or (2) the defendant argues the 

record does not support the court’s findings made pursuant to R.C. 2929.14(C)(4). 

State v. Leegrand, 8th Dist. Cuyahoga No. 108626, 2020-Ohio-3179, ¶ 75, rev’d in 

part on other grounds, Slip Opinion No. 2022-Ohio-3623. Garcia-Rodriguez argues 

that the trial court did not make the statutorily-required findings.

Here, the trial judge made these findings at the sentencing hearing:

With regards to the sentencing in this case, under Count 1, the sentence 

by law is life with parole eligibility after 15 years.

Count No. 3, the Court is going to impose a sentence of 11 years, plus 

three years for the firearm specification.

The Court further finds that due to the defendant’s history, specifically 

several cases out in Lorain County, plus two burglary cases both out 

of Lorain County, that it’s necessary to protect the public from future 

crime and that this is not disproportionate, and the harm is so great 

that a single prison term doesn’t adequately reflect the seriousness of

the conduct. He does have an extensive criminal history. Counts 1 and 

3 are to be served consecutive to each other.

Tr. 1306-1307. The trial court satisfied the statutory requirements of R.C. 

2929.14(C)(4) and the corresponding journal entry contained the same language.

Where the trial court’s statements at the sentencing hearing complied 

with R.C. 2929.14(C)(4) and the court’s corresponding journal entry reflected those 
statements, Garcia-Rodriguez’s sixth assignment of error is without merit and is 

overruled.

VII. Improper Sentence

In his seventh assignment of error, Garcia-Rodriguez argues that the 

trial court imposed an improper sentence on Count 1, felony murder. Specifically, 

Garcia-Rodriguez argues that the trial court’s sentence did not conform with the 

felony-murder sentencing statute, R.C. 2929.02(B)(1), when it imposed a definite 

sentence. According to R.C. 2929.02(B)(1), “whoever is convicted of or pleads guilty 

to murder in violation of section 2903.02 of the Revised Code shall be imprisoned 

for an indefinite term of fifteen years to life.” The court sentenced Garcia-Rodriguez 

to “life with parole eligibility after 15 years.” The state argues there is no discernable 

difference between the language presented in the sentencing statute and the 

imposed sentence.

When a trial court acting with subject-matter and personal 

jurisdiction imposes a sentence contrary to law, the sentence is voidable and may be 

challenged on direct appeal. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 

159 N.E.3d 248, ¶ 4, 42.

The Ohio Supreme Court explained in State v. Fischer, 128 Ohio St.3d 

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, that

[j]udges have no inherent power to create sentences. Griffin & Katz, 

Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also 

Woods v. Telb, 89 Ohio St.3d [504] at 507-509, 2000-Ohio-171, 733 

N.E.2d 1103 [2000] (describing the legislative intent behind a new, 

comprehensive sentencing structure, including postrelease control). 
Rather, judges are duty-bound to apply sentencing laws as they are 

written. See State v. Thomas (1996), 111 Ohio App.3d 510, 512, 676 

N.E.2d 903. “[T]he only sentence which a trial court may impose is that 

provided for by statute. A court has no power to substitute a different 

sentence for that provided for by statute or one that is either greater or 

lesser than that provided for by law.” Colegrove [v. Burns], 175 Ohio 

St. [437, 438, 195 N.E.2d 811 (1964)].

The Ohio Supreme Court recently addressed a similar distinction 

between the murder sentencing statute and an imposed sentence in State v. 

Leegrand, Slip Opinion No. 2022-Ohio-3623. The Leegrand Court noted that the 

General Assembly intended R.C. 2929.02(B)(1), the murder sentencing statute, to 

(1) impose a minimum sentence of 15 years for murder in violation of R.C. 

2903.02(B); (2) impose a maximum sentence of life in prison; and (3) prohibit a 

sentence for a specified duration by stating that the term shall be “indefinite.”

Leegrand at ¶ 7. On Leegrand’s murder conviction in violation of R.C. 2903.02(B), 

the trial court sentenced him to “life in prison with eligibility of parole after 15 years.” 

Id. at ¶ 2-3. Even though the trial court’s sentencing entry language differed from 

the language of R.C. 2929.02(B)(1), a review of the sentencing entry showed 

it is still readily apparent that Leegrand must serve at least 15 years in 

prison, that he could serve as much as life in prison, and that the 

murder sentence is not for a specified duration. It is clear to us that the 

sentencing entry is consistent with R.C. 2929.02(B)(1). The sentencing 

entry does neither more nor less than R.C. 2929.02(B)(1) requires.* * * 

Whatever difference exists between the language of R.C. 2929.02(B)(1) 

and the language in Leegrand's sentencing entry, the practical 

difference is, at worst, de minimis, and, at best, indistinguishable.

Id. at ¶ 8-9.
Here, the jury convicted Garcia-Rodriguez of felony murder pursuant 

to R.C. 2903.02(B) and the trial court sentenced him to life with parole eligibility 

after 15 years. Though the better practice would have been for the trial court to use 

the specific language of the sentencing statute, doing otherwise was not error where 

the sentencing entry conveyed the exact same meaning as the statutory language. 

Id. at ¶ 8. We follow Leegrand and find there is no discernible difference between 

the sentence imposed for Garcia-Rodriguez’s felony-murder conviction and the 

corresponding sentencing statute.

Accordingly, we overrule Garcia-Rodriguez’s seventh assignment of 

error. 

{¶ 100} 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 

convictions having been affirmed, any bail pending 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.

__________________________________

MARY EILEEN KILBANE, PRESIDING JUDGE

LISA B. FORBES, J., and

MARY J. BOYLE, J., CONCUR