{¶ 3} But in March of 2007, in State v. Cabrales, this court held that a trial court could not, consistent with R.C.
{¶ 4} In the wake of the supreme court's decision inCabrales, we held in State v. Smith that felonious assault under R.C.
{¶ 5} In October of 2008, citing Cabrales and the supreme court's decision in State v. Colon, 10 Thomas applied under App. R. 26(A) for reconsideration of our 2002 decision in his case. We granted his motion in part. We held that, to the extent that he sought reconsideration of our decision in light of Colon, Thomas had failed to *4 demonstrate extraordinary circumstances that would warrant an enlargement of the time prescribed by App. R. 26(A) for applying for reconsideration.11 But the supreme court's decision inCabrales and our subsequent decision in Smith made apparent our error in rejecting Thomas's challenge, in his ninth assignment of error, to the imposition of prison terms upon the verdicts finding him guilty of felonious assault as charged in counts seven and eight of the indictment.12 And those decisions provided the extraordinary circumstances that warranted enlarging the application time.13 Accordingly, we reconsider, and substitute this decision for, our 2002 decision.
{¶ 7} At trial, a criminologist testified that a shell casing found near Barnett had been fired from the gun found beneath Thomas, and that Thomas had had traces of gunpowder on his right hand. The gunpowder residue, the criminalist opined, suggested either that Thomas had fired a gun, or that he had come into contact with someone who had fired a gun.
{¶ 8} A police officer testified that he had found in the van in which Thomas had been apprehended two coats, one plaid and one black, along with Uhlenbergher's wallet. Davis testified that one of his robbers had been wearing a plaid coat and the other had been wearing a black coat. And he identified the van as that from which his attackers had emerged.
{¶ 9} Thomas testified that he had had no knowledge of the assaults and robberies because he had been asleep in the back of the van. He stated that, as he was leaving a West End bar, he had seen his friend "Keno" driving a van. Thomas paid Keno to take him home. He and two other passengers, whom he did not know, smoked marijuana. He then fell asleep in the back of the van and awoke when the van stopped and the two passengers climbed back in. A short time later, the van stopped again and a fourth passenger entered. A police cruiser then began following the van. During the ensuing high-speed chase, Thomas insisted, he had demanded that Keno stop and let him out. *6
{¶ 10} The jury chose not to believe Thomas and found him guilty on 12 of the 15 counts upon which he had been indicted. The trial court then sentenced him to a total of 45 and one-half years in prison.
{¶ 12} The state excluded the first prospective juror because he had previously been convicted of theft, a crime of dishonesty. The state excluded the second prospective juror because of his hypertechnicality. The prospective juror had expressed concern that when the court had asked "folks to tell the truth, so help you God," "the court never asked the people if they believe in God." The state explained that since it would be basing its case against Thomas on circumstantial evidence, it feared that this prospective juror would hold the state to a higher standard of proof. These race-neutral explanations were sufficient to defeat Thomas's Batson challenge. Accordingly, the fifth assignment of error is without merit. *7
{¶ 14} But the objection was sustained only as to the form of the question. Defense counsel rephrased the question, asking, "What did you tell the police at the time?" Davis then answered the question. Because defense counsel had rephrased the question and Davis had answered, no material prejudice arose from the trial court's ruling.17 Thus, the trial court did not abuse its discretion in sustaining the objection, and we overrule the sixth assignment of error.
{¶ 16} In Doyle v. Ohio, the Ohio Supreme Court held that it is "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."18 During closing argument, the assistant prosecuting attorney referred to the testimony of Police Officer Will Robbins. Officer Robbins had accompanied the Northside victims to the hospital to complete his investigation. While at the hospital, he saw Thomas, who had already been read his Miranda rights. Officer Robbins knew Thomas personally and told him that his father would be angry with him. Officer Robbins testified that Thomas had responded that he was not worried about his father, but was instead concerned about his mother's reaction. In closing argument, the assistant prosecuting attorney offered this comment on Thomas's failure to then proclaim his innocence: "When he's laying in the hospital under arrest for these terrible crimes, shooting of an 83 year old lady on Christmas night, he doesn't say, [`]God, you got it all wrong. I was in the car with Keno and these two guys, I don't know who they are, but they got in the car. Gosh, I shook the one guy's hand.['] He didn't say that. What does he say? [`]My mom's going to kill me.['] [Defense counsel] says, [`O]h, that doesn't mean anything.['] Well, yeah, it does. By itself, maybe not. But with all of this evidence, it sure does."
{¶ 17} In State v. Saunders, the Sixth Appellate District held that "when a defendant's post-arrest silence is raised for the first time in the prosecutor's closing argument, it is not being raised for impeachment purposes, and the defendant is further prejudiced in that he or she is afforded no opportunity to call *9 rebuttal witnesses."19 Here, the comments on Thomas's post-arrest silence came only in closing argument. Accordingly, the comments were improper.
{¶ 18} But we review Doyle violations for harmless error.20 In determining whether the prosecutorial misconduct was harmless, this court must consider the extent of the comments, whether an inference of guilt from the silence was stressed to the jury, and the extent of other evidence suggesting Thomas's guilt.21 Our review of the record demonstrates that the improper comments were only a small portion of a closing argument that, transcribed for our review, spanned over 30 pages. Nor can it be said, from the context of the entire closing argument, that an inference of guilt was stressed to the jury. In fact, in making the comments, the assistant prosecuting attorney stated that Thomas's silence, "[b]y itself," was not indicative of guilt. Finally, the record provides overwhelming evidence of Thomas's guilt. We, therefore, conclude that the comments were harmless. Accordingly, we overrule the third assignment of error.
{¶ 21} With these principles in mind, we are persuaded that the state presented sufficient evidence from which the jury could have concluded, beyond a reasonable doubt, that Thomas had committed the offenses of aggravated robbery and felonious assault against Davis. To convict him of aggravated robbery, the state had to prove that Thomas, in attempting to commit a theft offense, had had a deadly weapon on his person or under his control.25 To convict him of felonious assault, the state had to prove that he had knowingly caused or attempted to cause physical harm to Davis by means of a deadly weapon.26
{¶ 22} Thomas claims that the circumstantial evidence presented at trial permitted the jury to infer only that he had been present when Davis was robbed, not that he had knowingly inflicted or attempted to inflict physical harm on Davis. But Davis testified that his robbers had emerged from the van in which Thomas had been found, and that one of his robbers had shot him as he was running away. And Thomas *11 was found in the overturned van with a gun beneath him and gunpowder residue on his hand.
{¶ 23} From this evidence, the jury could reasonably have inferred that Thomas had participated in the robbery. Consequently, the state adduced sufficient evidence to establish, beyond a reasonable doubt, that Thomas had committed the offenses of aggravated robbery and felonious assault upon Davis.27
{¶ 25} Thomas nonetheless asserts that the evidence was insufficient to show that he knew or had reasonable cause to believe that the handgun had been stolen. A defendant's knowledge that property in his or her possession had been stolen may be inferred from the following factors: "(a) the defendant's unexplained possession of the merchandise, (b) the nature of the merchandise, (c) the frequency with which such merchandise is stolen, (d) the nature of the defendant's commercial activities, and (e) the relatively limited time between the thefts and the recovery of the merchandise. "29 *12
{¶ 26} Although two years had passed between the time the gun had been stolen and the time of the offenses, consideration of the remaining factors supported a finding that Thomas knew or had reasonable cause to believe that the gun had been stolen. Thus, viewing the evidence in a light most favorable to the state, we conclude that the jury could have reasonably found that the elements of receiving stolen property had been proved beyond a reasonable doubt.30
Specifically, Thomas asserts that the trial court's order that he serve his sentences consecutively constituted cruel and unusual punishment. We disagree.
{¶ 29} Generally, "a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment. * * * It is generally accepted that punishments which are prohibited by the
{¶ 30} A review of the record demonstrates that consecutive sentences were properly imposed. We are persuaded, in light of the extent and viciousness of Thomas's criminal conduct, that the sentences were not disproportionate to the seriousness of his conduct. Because the record supports the consecutive sentences and the sentences did not constitute cruel and unusual punishment, we overrule the seventh assignment of error.
{¶ 32} Under R.C.
{¶ 33} Thomas's conviction for the aggravated robbery involving Barnett required proof that, during the commission of a theft or in fleeing from a theft, he had brandished a gun.36 His conviction for the aggravated robbery involving Jones required proof that, during the commission of a theft or in fleeing from a theft, he had "inflicted or attempted to inflict serious physical harm."37 Under the analysis set forth in Cabrales, the offenses cannot be said to be so similar that the commission of one *15 offense will necessarily result in the commission of the other. Thus, the offenses are not allied offenses of similar import, and Thomas could have been sentenced for both. Accordingly, we overrule the second assignment of error.
{¶ 34} In his ninth assignment of error, Thomas asserts that the trial court violated R.C.
{¶ 35} Thomas was charged with felonious assault in counts seven and eight for shooting Mary Barnett. Felonious assault under R.C.
Sentences vacated in part and cause remanded.
HILDEBRANDT, P. J., SUNDERMANN and CUNNINGHAM, JJ.