State v. Fair, 2011 Ohio 3330

Maneys’ Oakwood home burglarized on November 21, 2008; Fair pursued after burglary description, chased to Five Points, and subdued by officers.
Items of the Maneys’ property were found on Fair and in the area; Maneys identified Fair as the fleeing suspect.
Fair gave statements at the station; some were admitted as spontaneous, others excluded; suppression motion withdrawn after stipulations.
First trial: guilty of receiving stolen property and assault; complicity to burglarize charged but verdict hung; second trial convicted Fair of complicity to burglary.
Sentencing: five years for burglary, one year for receiving stolen property (merge discussion), one year for assault to be served consecutively; total six years; some merges noted on termination entry.
Fair appeals alleging ineffective assistance, Crim.R. 29 error, closing argument restriction, and merger error; Court affirms some errors, reverses on merger, remands for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Crim.R. 29 sufficiency to overturn	Fair argues insufficient evidence for complicity burglary.	Fair contends lack of entry or presence supports conviction.	Sufficiency supported; reasonable jury could find complicity.
Ineffective assistance—stipulation to admissibility	Counsel’s stipulation to admissibility of statements allegedly prejudicial.	Stipulation prejudiced defense by waiving suppression issues.	No ineffective assistance; stipulated statements would be admissible anyway.
Closing argument—preclusion of lesser offense	Defense should be allowed to argue receiving stolen property as a lesser offense.	Preclusion violated due process by limiting theory of defense.	No reversible error; defense effectively argued absence of burglary participation.
Merger of offenses	Burglary and receiving stolen property allied offenses; must merge for sentencing.	Merger appropriate; handling at sentencing flawed.	Allied offenses; remand for proper merger and resentencing.

State v. Thompkins, 78 Ohio St.3d 380 (1997-Ohio-52) (sufficiency standard and Jackson v. Virginia framework)
State v. Johnson, 93 Ohio St.3d 240 (2001-Ohio-1336) (approach to allied offenses and implied intent)
In re Innis, 446 U.S. 291 (1980) (definition of interrogation includes reasonably likely to elicit)
State v. Hale, 119 Ohio St.3d 118 (2008-Ohio-3426) (routine booking questions and admissibility)
Maumee v. Geiger, 45 Ohio St.2d 238 (1976) (allied offenses and theft/receiving)
State v. Barker, 183 Ohio App.3d 414 (2009-Ohio-3511) (electing offenses when allied offenses)