State v. Zan ( 2013 )


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  • [Cite as State v. Zan, 
    2013-Ohio-1064
    .]
    IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
    STATE OF OHIO                                       :
    Plaintiff-Appellee                          :            C.A. CASE NO.    24600
    v.                                                  :            T.C. NO.   09CR3496/3
    PANDORA ZAN                                         :            (Criminal appeal from
    Common Pleas Court)
    Defendant-Appellant                         :
    :
    ..........
    OPINION
    Rendered on the     22nd       day of        March      , 2013.
    ..........
    R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
    Third Street, 5th Floor, Dayton, Ohio 45422
    Attorney for Plaintiff-Appellee
    ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek,
    Ohio 45434
    Attorney for Defendant-Appellant
    ..........
    FROELICH, J.
    {¶ 1} Pandora J. Zan was convicted by a jury of (1) complicity to commit
    2
    aggravated murder (prior calculation and design), (2) complicity to commit aggravated
    murder (while committing aggravated robbery – deadly weapon), (3) complicity to commit
    aggravated murder (while committing aggravated robbery – serious physical harm),
    (4) complicity to commit aggravated robbery (deadly weapon), (5) complicity to commit
    aggravated robbery (serious physical harm), (6) obstructing justice, (7) tampering with
    evidence (fingerprints), and (8) tampering with evidence (laptop). The charges arose from
    the role Zan played in the murder of her husband, Charles Zan, by her son, Cody Henderson,
    and her attempts to cover up their involvement in the crimes.
    {¶ 2}     At sentencing, the three complicity to commit aggravated murder counts
    were merged into Count 1, and the two complicity to commit aggravated robbery counts
    were merged into Count 5. Zan received an aggregated sentence of life in prison without
    the possibility of parole, plus 25 years.
    {¶ 3}      Zan appeals from her conviction, claiming that the trial court erred in
    denying her motion to suppress evidence and in allowing witnesses to testify about
    statements made by her co-conspirator, Henderson. She further claims that her sentence
    was an abuse of discretion. For the following reasons, the trial court’s judgment will be
    affirmed.
    I.
    {¶ 4}     At approximately 6:00 a.m. on October 17, 2009, Charles Zan, Pandora
    Zan’s husband, was stabbed to death in the couple’s apartment on Springboro Pike in
    Miamisburg. A few items, including two laptops and Charles Zan’s firearm, were taken by
    the perpetrator. Shortly thereafter, at 6:13 a.m., Zan contacted the police.
    [Cite as State v. Zan, 
    2013-Ohio-1064
    .]
    {¶ 5}    On the day of the murder and the days that followed, Zan made numerous
    statements to the police, both at her residence and at the police station. Zan initially
    claimed that she and her husband had been assaulted by intruders and that she was
    unconscious while her husband was killed.           On October 19, Zan’s daughter, Misty
    Henderson, told the police that Cody Henderson (her brother) had killed Charles Zan, their
    stepfather, and that her mother (Zan) wanted to tell the police what had happened. Zan also
    implicated her son. That day, Zan assisted the police in apprehending Henderson. At this
    juncture, Zan was not charged or arrested for any crimes in connection with her husband’s
    death.
    {¶ 6}    In April 2010, Zan told her probation officer (in an unrelated case) that she
    wanted to speak to prosecutors because she was concerned that Henderson was making
    statements to the police that implicated her in her husband’s death. Detectives came to
    Zan’s home and spoke with her for more than two hours.               Zan initially denied any
    involvement in the murder, but ultimately confessed to planning the murder with Henderson.
    At the conclusion of the interview, Zan was taken into custody and transported to the police
    department, where she made additional incriminating statements. Zan was subsequently
    indicted on numerous counts of complicity to commit aggravated murder, complicity to
    commit aggravated robbery, tampering with evidence, and obstructing justice, all stemming
    from her involvement in her husband’s murder.
    {¶ 7}    In June 2010, Zan filed a motion to suppress all statements that she made to
    the police. Zan claimed that her statements were made in violation of her rights under
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S.Ct. 1602
    , 
    16 L.Ed.2d 694
     (1966). A hearing on the
    motion was held on August 5, 2010. In a supplemental memorandum filed (with the court’s
    4
    permission) following the hearing, Zan asserted that the statements she made on October 19,
    2009, must be suppressed because she had invoked her right to counsel. She further
    claimed that her statements of April 27, 2010, were involuntary and were made as a result of
    an interrogation technique recognized as unlawful in Missouri v. Seibert, 
    542 U.S. 600
    , 
    124 S.Ct. 2401
    , 
    159 L.Ed.2d 643
     (2004). The trial court overruled the motion in its entirety.
    {¶ 8}    Shortly before trial, the State filed a motion asking the court to allow the
    admission of co-conspirator statements at trial, pursuant to Evid.R. 801(D)(2)(e). The
    motion concerned statements by Cody Henderson to Nicholas Howard and Brittannie
    Michelle Taylor. The court permitted the statements to be used at trial.
    {¶ 9}     Zan was tried in March 2011. She was convicted of all charges, and the
    court sentenced her to a mandatory term of life in prison without the possibility of parole for
    conspiracy to commit aggravated murder, a mandatory term of ten years in prison for
    complicity to commit aggravated robbery, and 5 years each for the remaining charges; all the
    sentences were to be served consecutively.
    {¶ 10} Zan raises three assignments of error on appeal.
    II.
    {¶ 11} Zan’s first assignment of error states:
    THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT’S
    MOTION TO SUPPRESS.
    {¶ 12} In her first assignment of error, Zan claims that the trial court erred in
    denying her motion to suppress the statements she made on April 27, 2010. First, she
    argues that she should have been given Miranda warnings at the start of the interview at her
    5
    apartment. Second, she asserts that the subsequent formal interview at the police station
    was the result of an improper “question first, Mirandize later” police tactic.
    {¶ 13}    When ruling on a motion to suppress, “the trial court assumes the role of
    trier of facts and is in the best position to resolve questions of fact and evaluate the
    credibility of witnesses.” State v. Hopfer, 
    112 Ohio App.3d 521
    , 
    679 N.E.2d 321
     (2d
    Dist.1996), quoting State v. Venham, 
    96 Ohio App.3d 649
    , 653, 
    645 N.E.2d 831
     (4th
    Dist.1994). In reviewing a trial court’s decision on the motion to suppress, an appellate
    court must accept the trial court’s findings of fact as true, if they are supported by competent,
    credible evidence. State v. Dudley, 2d Dist. Montgomery No. 24904, 
    2012-Ohio-960
    , ¶ 6.
    The appellate court must then determine, without deference to the conclusion of the trial
    court, whether the facts satisfy the applicable legal standard. 
    Id.
    {¶ 14} The trial court made extensive findings in its ruling denying Zan’s motion to
    suppress. With respect to the interactions between the police and Zan on April 27, the court
    found the following facts:
    Law enforcement had no further contact with Defendant until April
    27, 2010. Defendant had told her probation officer [in an unrelated case]
    that she wanted to speak with the police because she was concerned that
    Cody Henderson had begun making statements to police that implicated
    Defendant.     Sgt. Muncy and Det. Tom Thompson went to Defendant’s
    apartment on King Avenue in Dayton, Ohio on April 27th. Muncy and
    Thompson were dressed in plain clothes. Defendant voluntarily let them into
    her apartment. Defendant was told that she was free to not speak with them.
    6
    Defendant stated that she was willing to speak. Defendant moved around
    her apartment. She got up to smoke near the front door. Defendant never
    asked the officers to leave. Defendant never requested an attorney. No
    threats or promises were made to Defendant during this interview. An audio
    recording was made of this interview and admitted as State’s Ex. 6.
    Based on statements made by Defendant at her apartment on April
    27th, Sgt. Thompson left Defendant’s apartment to contact the prosecutor’s
    office. Based upon that contact with the prosecutor’s office, Defendant was
    taken into custody.    Defendant was not handcuffed, but Defendant was
    transported to the police station and Defendant was not free to leave. On the
    way to the police station, they stopped at a fast food restaurant to get
    Defendant food, which she ate.
    Defendant was transported to the Miamisburg police stations’
    interview room.    Defendant was advised of her Miranda rights using a
    written pre-interview Miranda form. Defendant stated that she understood
    her rights and the waiver of them. Defendant had been arrested on two prior
    occasions (an armed robbery [in 2002] and also earlier in 2010 [for petty theft
    and forgery]), where she had received Miranda warnings (State Ex. 12, 13).
    Defendant voluntarily signed the waiver of rights form (State Ex. 8). No
    threats or promises were made to Defendant on April 27th. The entirety of
    the in-custody April 27th interview was video recorded.         There are no
    indications whatsoever of any drug or alcohol impairment of Defendant
    7
    during this interview, or during any of the other interviews of Defendant.
    During the custodial interview, Defendant took a substantial amount
    of time to write out a six page statement (State Ex. 10) and an “apology
    letter” to the family of the victim (State Ex. 11). As is the case with all of
    the recorded interviews of Defendant, Defendant was at all times treated
    courteously and in a non-threatening manner by the police. The record is
    totally devoid of any evidence of duress, coercion or threats visited upon
    Defendant in any way.
    Following the April 27th interview at the police station, Defendant
    requested the opportunity to talk face-to-face with her family.              The
    Detectives granted this request. Misty Henderson and other family members
    came to the police station and met with Defendant in the records section of
    the police department.    A ten minute conversation occurred, with police
    present. Defendant was then transported to the Montgomery County Jail.
    {¶ 15}    The trial court indicated that it had considered the testimony of Sgt. Muncy
    at the suppression hearing and reviewed the video/audio recordings admitted into evidence,
    as well as the written exhibits. We have also reviewed the transcript of the suppression
    hearing, as well as audio and video recordings and documentary evidence from April 27,
    2010.
    {¶ 16}    In Miranda, 
    384 U.S. 436
    , 
    86 S.Ct. 1602
    , 
    16 L.Ed.2d 694
    , the United States
    Supreme Court held that the State may not use statements stemming from a defendant’s
    custodial interrogation unless it demonstrates the use of procedural safeguards to secure the
    8
    defendant’s privilege against self-incrimination. 
    Id. at 444
    . Police are not required to give
    Miranda warnings to every person that they question, even if the person being questioned is
    a suspect.   State v. Biros, 
    78 Ohio St.3d 426
    , 440, 
    678 N.E.2d 891
     (1997). Instead,
    Miranda warnings are only required for custodial interrogations.            
    Id.
        “Custodial
    interrogation” means questioning initiated by the police after the person has been taken into
    custody or otherwise deprived of his freedom in any significant way. State v. Wilson, 2d
    Dist. Montgomery No. 22665, 
    2009-Ohio-1279
    , ¶ 18, citing State v. Steers, 2d Dist. Greene
    No. 89-CA-38, 
    1991 WL 82974
     (May 14, 1991). In order for a defendant’s statements
    made during a custodial interrogation to be admissible, the State must establish that the
    accused knowingly, voluntarily, and intelligently waived his or her rights. Miranda, 
    supra;
    State v. Edwards, 
    49 Ohio St.2d 31
    , 38, 
    358 N.E.2d 1051
     (1976), overruled on other
    grounds, 
    438 U.S. 911
    , 
    98 S.Ct. 3147
    , 
    57 L.Ed.2d 1155
     (1978).
    {¶ 17} Neither the subjective intent of the officer nor the subjective belief of the
    defendant is relevant in determining whether the defendant was in custody. State v. Cundiff,
    2d Dist. Montgomery No. 24171, 
    2011-Ohio-3414
    , ¶ 57.           “Instead, we have considered
    factors such as the location of the interview and the defendant’s reason for being there,
    whether the defendant was a suspect, whether the defendant was handcuffed or told he was
    under arrest or whether his freedom to leave was restricted in any other way, whether there
    were threats or intimidation, whether the police verbally dominated the interrogation or
    tricked or coerced the confession, and the presence of neutral parties.” 
    Id.,
     quoting State v.
    Hatten, 
    186 Ohio App.3d 286
    , 2010 -Ohio- 499, 
    927 N.E.2d 632
    , ¶ 50 (2d Dist.).
    {¶ 18}    Even when an individual is not in custody and Miranda warnings are not
    9
    required, a defendant’s statement may be involuntary and subject to exclusion. State v.
    Porter, 
    178 Ohio App.3d 304
    , 
    2008-Ohio-4627
    , 
    897 N.E.2d 1149
    , ¶ 14 (2d Dist.), citing
    Dickerson v. United States, 
    530 U.S. 428
    , 
    120 S.Ct. 2326
    , 
    147 L.Ed.2d 405
     (2000). “In
    deciding whether a defendant’s confession is involuntarily induced, the court should
    consider the totality of the circumstances, including the age, mentality, and prior criminal
    experience of the accused; the length, intensity, and frequency of interrogation; the existence
    of physical deprivation or mistreatment; and the existence of threat or inducement.”
    Edwards, 49 Ohio St.3d at paragraph two of the syllabus. See also State v. Brewer, 
    48 Ohio St.3d 50
    , 58, 
    549 N.E.2d 491
     (1990); State v. Marks, 2d Dist. Montgomery No. 19629,
    
    2003-Ohio-4205
    . A defendant’s statement to police is voluntary absent evidence that his
    will was overborne and his capacity for self-determination was critically impaired due to
    coercive police conduct. Colorado v. Spring, 
    479 U.S. 564
    , 574, 
    107 S.Ct. 851
    , 
    93 L.Ed.2d 954
     (1987); State v. Otte, 
    74 Ohio St.3d 555
    , 562, 
    660 N.E.2d 711
     (1996).
    {¶ 19}     In asserting that the interview at her apartment was a custodial
    interrogation, Zan emphasizes that she repeatedly asked permission to move around her
    apartment during the interview, and she focuses on the following exchange that occurred
    shortly after the detectives entered her apartment:
    Sgt. Muncy: Okay, Pandora. We want – we want to give you one
    more opportunity to talk to us. And I think you know what’s going on and
    what’s about to happen.
    Zan: Can I close the door?
    Det. Sgt. Thompson: Absolutely, Pandora.
    10
    Sgt. Muncy: Sure.
    Det. Sgt. Thompson: You’re not under arrest or anything right now,
    so you can do whatever you want, okay?
    Sgt. Muncy: I think you know what’s going on and what’s about to
    happen.     And we just –.     Listen, listen, listen to me.    Before you say
    anything, I want you to know that I know Chuck’s been, Chuck was mean to
    you guys. * * * He was a jerk, okay? But we’ve been talking to Cody.
    And I think you know that, and you know what’s about to happen. And –.
    Zan: He’s lying.
    Sgt. Muncy: But. Pandora.
    Zan: He is lying.
    Sgt. Muncy: I know –
    Zan: He told me Sunday when I went and visited him about the deal.
    And that he was gonna burn me. That’s what he told me.
    Sgt. Muncy: All the other facts. Listen, all the other facts – and we’ll
    tell you about some things we know. We know a lot more than just what
    Cody’s telling us. We’ve got a lot more facts to back this up. And that’s
    why we want to give you the opportunity to at least give us a reason. I don’t
    want people to think you did this just because you’re cold-hearted, that you
    set this up because you’re cold-hearted. There’s a reason you did. * * *
    {¶ 20}     Upon review of the entire record, we agree with the trial court that Zan was
    not in custody when the officers interviewed her at her residence. The record reflects that,
    11
    although the detectives’ visit was not scheduled, Zan invited them into her apartment and
    she agreed to talk to the detectives. The officers were in plain clothes, they spoke with Zan
    in the living room of her apartment, and they made clear at the beginning of the interview
    that Zan was not under arrest and was free to move around. At all times, the detectives
    spoke courteously and in a non-threatening manner with Zan; the officers did not threaten
    Zan and there is no evidence that they engaged in any coercive behavior.
    {¶ 21} It is clear that Cody Henderson’s decision to cooperate with the State played
    a significant role in the detectives’ decision to talk with Zan and in Zan’s decision to talk
    with the detectives. Sgt. Muncy testified at the suppression hearing that Zan told her
    probation officer that she wanted to talk with the prosecutor’s office, because she had come
    to realize that Henderson was talking to the prosecutors about making a deal to turn in Zan
    for her involvement in Charles Zan’s homicide. Sgt. Muncy testified, “And we just thought
    that would be a good time to go out and talk to her.”            The officers’ references to
    Henderson’s cooperation and efforts to make a deal with the prosecutors – “I think you know
    what’s going on and what’s about to happen” – may have led Zan to decide to talk with the
    officers, but it did not turn the encounter into a custodial interrogation. Although the
    officers spoke with Zan at her apartment for over two hours, we find nothing in the audio
    recording or in Sgt. Muncy’s testimony at the suppression hearing to support Zan’s
    contention that she was in custody and entitled to Miranda warnings prior to the detectives’
    decision, at the conclusion of the interview, to contact the prosecutor’s office and then place
    her under arrest.
    {¶ 22}       We also find no merit to Zan’s claim that her statements during the
    12
    subsequent formal interview at the police station were the result of an improper “question
    first, Mirandize later” police tactic. Zan claims that the officers used an interrogation
    technique that was recognized as unlawful in Seibert, 
    542 U.S. 600
    , 
    124 S.Ct. 2401
    , 
    159 L.Ed.2d 643
    .
    {¶ 23}    Seibert concerned the situation where the interrogating police officer
    obtained a confession in violation of an accused’s Miranda rights. After a short break, the
    officer provided Miranda warnings and then led the suspect to repeat her prior incriminating
    statements. A plurality of the United States Supreme Court held that, “[b]ecause this
    midstream recitation of warnings after interrogation and unwarned confession could not
    effectively comply with Miranda’s constitutional requirement, * * * a statement repeated
    after a warning in such circumstances is inadmissible.” Seibert at 604. The Supreme
    Court held that both the pre-Miranda and post-Miranda statements were inadmissible.
    {¶ 24} Seibert is often contrasted with Oregon v. Elstad, 
    470 U.S. 298
    , 
    105 S.Ct. 1285
    , 
    84 L.Ed.2d 222
     (1985), an earlier case in which the Supreme Court held admissible a
    post-Miranda confession that followed a pre-warning admission solicited by an officer while
    the suspect was in custody. “In Elstad, police went to the home of an eighteen-year old
    defendant with a warrant for his arrest. While one officer went to the kitchen to explain to
    the suspect’s mother that her son was being arrested in connection with a burglary that
    occurred at the home of a neighbor, another officer stayed with Elstad in the living room and
    had a brief discussion with him. The officer explained the neighbor’s house had been
    robbed and that he thought Elstad was involved. Elstad stated to the officer ‘Yes, I was
    there.’ Police took Elstad to the police station, and about one hour later, interviewed him in
    13
    the office of one of the officers. The police administered Miranda to Elstad for the first
    time without mentioning his previous admission. Elstad subsequently waived his rights and
    made a full, detailed confession regarding his involvement in the burglary.” State v. Cook,
    2d Dist. Montgomery No. 24524, 
    2012-Ohio-111
    , ¶ 21-22 (summarizing Elstad).
    {¶ 25}    The United States Supreme Court allowed Elstad’s confession given after
    Miranda warnings to be admitted at trial. The Court noted that “a finding of voluntariness
    for the purposes of the Fifth Amendment is a threshold requirement in determining whether
    the confession may be admitted in evidence.” The Elstad Court emphasized that “there was
    no warrant for presuming coercive effect where the suspect’s initial inculpatory statement,
    though technically in violation of Miranda, was voluntary.” Id. at 318. Instead, “the
    relevant inquiry is whether, in fact, the second statement was also voluntarily made.” Id.
    This is determined by examining the surrounding circumstances and the entire course of
    police conduct. Id. Accordingly, the Elstad Court held that “a suspect who has once
    responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his
    rights and confessing after he has been given the requisite Miranda warnings.” Id.; see also
    Cook at ¶ 23.
    {¶ 26} The Seibert Court contrasted the facts in Seibert from those in Elstad, noting
    “a series of relevant facts that bear on whether Miranda warnings delivered midstream could
    be effective enough to accomplish their object:” (1) the completeness and detail of the
    questions and answers in the first round of interrogation, (2) the overlapping content of the
    two statements, (3) the timing and setting of the first and the second interrogations, (4) the
    continuity of police personnel, and (5) the degree to which the interrogator’s questions
    14
    treated the second round as continuous with the first. Seibert at 615. “Elstad and Seibert
    stand on opposite sides of the line defining where pre-warning statements irretrievably affect
    post-warning statements. Still, that line cannot be said to be bright or sharply defined.”
    State v. Farris, 109 Ohio St.3d at 523, 
    2006-Ohio-3255
    , 
    849 N.E.2d 985
    .
    {¶ 27} Here, Zan focuses on the fact that the officers spoke with her in her
    apartment for more than two hours and that she made statements revealing her complicity in
    the plan to kill her husband and her involvement in covering up the crime. Zan was
    subsequently transported to the police station, where she was questioned again by the same
    two detectives. She gave incriminating statements consistent with those she made at her
    apartment.
    {¶ 28} We nevertheless find Seibert to be distinguishable, because Zan was not in
    custody when she spoke with the detectives at her apartment, at least up to the point where
    the officers informed her (at the end of their conversation) that they needed to contact the
    prosecutor. As stated above, the detectives came to Zan’s residence based on reports that
    Zan wanted to speak to the prosecutor, as she had heard that Henderson was now speaking to
    the State about Zan’s involvement in the crime. Zan welcomed the detectives into her
    apartment, and the detectives expressly told Zan that she was not under arrest. The entire
    conversation was respectful and non-coercive, and there is no indication that any of Zan’s
    statements were involuntarily given.     Zan did not make a custodial statement to the
    detectives and then, after Miranda warnings, give another statement repeating her prior
    confession. Her statements at the police station, while repetitive of her statements in the
    apartment, were her only custodial statements on April 27, 2010.
    15
    {¶ 29} The first assignment of error is overruled.
    II.
    {¶ 30} Zan’s second assignment of error states:
    THE TRIAL COURT ERRED WHEN IT ALLOWED HEARSAY
    STATEMENTS INTO EVIDENCE.
    {¶ 31} In her second assignment of error, Zan claims that the trial court erred in
    allowing into evidence statements made by her co-conspirator, Cody Henderson, to
    Brittannie Michelle Taylor and Nicholas Howard. Taylor is Henderson’s former fiancé and
    the mother of his child; Howard is Henderson’s best friend.            Zan objected to the
    admissibility of Henderson’s statements to Taylor and Howard, both before trial and at trial.
    {¶ 32} Taylor testified that, on Friday, October 16, 2009, Zan picked up Henderson
    and Taylor and drove them to a car rental facility, where Zan rented a red car for Henderson
    to use. After Henderson and Taylor left in the rental car, Henderson told Taylor that he and
    Zan had a plan whereby he would go to his mother’s house and kill his stepfather.
    Henderson stated that Zan would give him $25,000 from Charles Zan’s life insurance policy
    in return. Henderson and Taylor discussed using that money to buy a house. Taylor
    testified that she did not report the conversation to anyone, because she did not believe that
    Henderson had meant it.
    {¶ 33} Taylor further testified that she and Henderson spent that evening at a
    haunted house with Nick Howard and a girl she didn’t know. In the early morning hours of
    October 17, Henderson drove to an apartment complex and parked. He left the car wearing
    plastic gloves. When Henderson returned, he had blood on his face and hands, a cut on his
    16
    face, and a bag with two laptop computers in it. Henderson told the group that he had killed
    his stepfather.   Henderson had Howard drive the car to Henderson’s father’s home.
    Henderson took the bag into his father’s house. In the days after the murder, Taylor saw
    Henderson and Howard burn Henderson’s bloody clothes and attempt to sell one of the
    laptop computers.
    {¶ 34} Howard testified that on October 16, 2009, Henderson picked him up in a
    red Chevy HHR, and the two went to a pool hall to play pool. Henderson told Howard that
    he had plans to rob someone of two laptops. Later that evening, Henderson and Howard
    picked up Taylor from her home and went to a haunted house. While there, Howard met a
    female friend from high school named Alyssa; when Alyssa was finished working at the
    haunted house, she left with Howard, Henderson and Taylor. The group played pool at a
    different establishment and then spent some time at Taylor’s home.
    {¶ 35} Early in the morning of October 17, the group left Taylor’s house.
    Henderson stated in the car that he was “going to Dayton to hit the lick on the laptops,”
    meaning that he was going to rob someone. Henderson drove to the Zans’ apartment
    complex off of Springboro Pike and got out of the car. The other individuals waited in the
    car. After about 45 minutes, Henderson came running back with a bag in his hand and told
    Howard, “Shit went bad. Shit went bad. I need you to drive.” Once back in the car,
    Henderson took off several items of clothing and put them in another bag. Henderson told
    Howard how to get to Henderson’s father’s house.
    {¶ 36} As Howard drove, he asked Henderson what had happened.                Howard
    testified that Henderson responded:
    17
    He told me that he originally had walked up to the apartment, started to cut
    the screen and that a dog * * * started barking * * * and [that] had arose
    Pandora and she had come to the door and Cody’s words exactly,
    mysteriously walked the dog. She walked out and he walked in. * * * He
    stood at the edge of the bed, looked at Chuck and just thought about all the
    stuff that had happened over the years, between the abuse with his mother, his
    self, his sister and at that point he snapped, jumped on top of the man and slit
    his throat. Held his head to the pillow and slit his throat. * * * [Pandora] just
    went to walk the dog. * * * Basically [there was] a fight with Chuck at that
    point and that Chuck had somehow managed to get the knife away from him
    and was going for his gun. Told me that he had yelled at his mother to get
    him another knife and she did and once that, he basically just started stabbing
    until he [Chuck] didn’t struggle anymore.
    {¶ 37} Howard further testified that, upon reaching Henderson’s father’s house,
    Henderson took the bags with his clothes and the laptops from the car and took them to a
    barn. Henderson then drove Howard home.
    {¶ 38} Henderson picked up Howard between 1:00 p.m. and 2:00 p.m. the same
    day. Zan was in the passenger seat of the car. Howard overheard Henderson tell Zan, “I
    can’t believe you got me the other knife,” and Zan reply, “I can’t believe you actually did it.”
    Zan asked Howard to sell the laptops and give the money to Henderson; Howard responded
    that he would. Zan also asked Howard to erase the hard drives and to “keep quiet” about
    what had happened.
    18
    {¶ 39} Howard later sold one of the laptops to a friend.               Afterward, he and
    Henderson took a bag of items, including the other laptop, a pistol and a wallet, to another
    house owned by Henderson’s father. The next day, Henderson, Howard, and Taylor took
    Henderson’s bloody clothes to a “fishing hole” in Middletown, Ohio, and burned them.
    Howard further testified that Henderson told him that he (Henderson) had committed the
    crimes because Zan had offered to pay him $25,000 from Charles Zan’s life insurance.
    {¶ 40}      On appeal, Zan claims that the statements made by Henderson to Taylor
    and Howard were inadmissible hearsay, because they did not fall within Evid.R.
    801(D)(2)(e), which excludes certain statements of a co-conspirator from the definition of
    hearsay. “Hearsay” is defined as “a statement, other than one made by the declarant while
    testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
    Evid.R. 801(C). In general, hearsay is not admissible. Evid.R. 802.
    {¶ 41}     “Under Evid.R. 801(D)(2)(e), hearsay does not include a statement offered
    against a party that is made ‘by a co-conspirator of a party during the course and in
    furtherance of the conspiracy upon independent proof of the conspiracy.’ ‘The statement of
    a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of
    the statement has made a prima facie showing of the existence of the conspiracy by
    independent proof.’ Evid.R. 802(D)(2)(e) does not require that explicit findings of the
    conspiracy be made on the record.” (Citations omitted.) State v. Were, 
    118 Ohio St.3d 448
    , 
    2008-Ohio-2762
    , 
    890 N.E.2d 263
    , ¶ 116.
    {¶ 42} “A conspiracy does not necessarily end with the commission of the crime.
    A statement made by a co-conspirator after the crime may be admissible under Evid.R.
    19
    801(D)(2)(e) if it was made in an effort to conceal the crime.” (Citations omitted.) State v.
    Braun, 8th Dist. Cuyahoga No. 91131, 
    2009-Ohio-4875
    , ¶ 109; see also State v. Burns, 5th
    Dist. Richmond No. 10CA130, 
    2011-Ohio-5926
    , ¶ 92. As we stated in State v. Boone, 2d
    Dist. Montgomery No. 7516, 
    1983 WL 4843
     (Mar. 4, 1983):
    The acts and declarations of a conspirator are admissible against a
    coconspirator when they are made during the pendency of the wrongful act,
    and this includes not only the perpetration of the offense, but also its
    subsequent concealment. The theory for the admission of such evidence is
    that persons who conspire to commit a crime, and who do commit a crime,
    are as much concerned, after the crime, with their freedom from
    apprehension, as they were concerned, before the crime, with commission;
    the conspiracy to commit the crime devolves after the commission thereof
    into a conspiracy to avoid arrest and implication.
    (Emphasis in original.) Id. at *4, quoting State v. De Righter, 
    145 Ohio St. 552
    , 558, 
    62 N.E.2d 332
     (1945).
    {¶ 43} Zan claims that Henderson’s statements were not made “during the course of
    and in furtherance of the conspiracy” between them.
    {¶ 44} In general, a co-conspirator’s statements to a third party which simply
    describe the events that occurred are not made in furtherance of the conspiracy. See Braun at
    ¶ 113 (statements of co-conspirator who bragged about the murder were not made in
    furtherance of the conspiracy); State v. Smith, 
    87 Ohio St.3d 421
    , 
    721 N.E.2d 93
     (2000).
    See also State v. Carter, 
    72 Ohio St.3d 545
    , 
    651 N.E.2d 965
     (1995), paragraph four of the
    20
    syllabus (“A confession to police by one co-conspirator implicating a second co-conspirator
    is not made ‘during the course and in furtherance of the conspiracy’ within the scope of
    Evid.R. 801(D)(2)(e), as such a statement is made at a point in time when the confessor is no
    longer attempting to conceal the crime and has abandoned the conspiracy.”).             Such
    statements to third parties can be contrasted with those made by a conspirator who was
    present when the crime was committed to other co-conspirators who were not. E.g., Boone,
    supra. We noted in Boone that the statements of a conspirator who committed the offenses
    to co-conspirators who had not personally observed the commission of the crimes were in
    furtherance of the conspiracy, because the statements made the other conspirators aware of
    the circumstances involved in the actual execution of the crimes, thereby informing those
    conspirators of the extent to which the actions of a conspirator had exceeded the original
    plan.
    {¶ 45} In this case, Howard and Taylor were not conspirators in the plan to kill
    Charles Zan. Howard testified that he asked to be driven home instead of going to the
    location where Henderson planned to rob someone, but Henderson refused. Henderson told
    Howard that he (Howard) would be “part of his [Henderson’s] alibi.” After the murder,
    Henderson described the murder to Howard while Howard drove Henderson (with Taylor
    and Alyssa in the vehicle) to Henderson’s father’s home, where Henderson hid his bloody
    clothes and the laptops he had stolen.
    {¶ 46}   We find it to be a close question whether Henderson’s statements to Taylor
    and Howard that he killed Charles Zan and Henderson’s detailed description of his actions in
    committing the murder were made in furtherance of the conspiracy. While Henderson’s
    21
    statements could be seen as merely describing his actions to his close associates, it could
    also be interpreted as informing these friends of his actions so they could help him avoid
    detection and apprehension by the police.
    {¶ 47}    Regardless, the admission of Henderson’s confessions to killing Charles
    Zan and his description of his own actions while in the Zans’ apartment were harmless, as
    there was never any dispute at Zan’s trial that Henderson fatally stabbed his stepfather and
    stole the laptops. Defense counsel specifically stated during his opening statement that
    there was no dispute that “Cody did it. * * * Cody killed Charles.”
    {¶ 48} As part of Henderson’s description of the murder to Howard, Henderson told
    Howard that he asked his mother to get him another knife during the stabbing and Zan
    complied. We do not find that this statement was made in furtherance of the conspiracy.
    {¶ 49}    However, Howard also heard Henderson and Zan talking with each other
    shortly after the murder, during which Henderson told Zan, “I can’t believe you got me the
    other knife,” and Zan replied, “I can’t believe you actually did it.”       As part of this
    conversation, Zan asked Howard to “keep quiet” about what had happened and to sell the
    laptops and give the money to Henderson. This conversation between Zan, Howard, and
    Henderson occurred as part of plan to conceal the crime and sell the proceeds of the robbery.
    Thus, these statements were admissible under Evid.R. 801(D)(2)(e). The admission of
    Henderson’s initial statement to Howard that Zan provided him a knife during the murder
    was harmless.
    {¶ 50} Henderson’s description of the murder also indicated that Zan went outside
    to walk her dog. We fail to see how this statement to Howard was made in furtherance of
    22
    the conspiracy. However, Zan acknowledged in her April 27, 2010 written statement that
    she went outside with her dog after Henderson arrived at her apartment, and Zan’s neighbor,
    Ralph Van Gundy, testified at trial that he saw Zan standing outside with her dog at 6:00
    a.m., within minutes of his hearing Charles Zan’s cries for help. Carla Hairston testified
    that she and Zan were in the Montgomery County Jail together on July 3, 2010. While
    describing the murder to Hairston, Zan said that she stood outside with the dog, that a
    neighbor looked out the window, and she waved him off. Zan herself testified at trial that,
    when Henderson came into the apartment, she took the dog outside. Henderson’s statement
    to Howard that Zan took her dog outside was harmless.
    {¶ 51} Finally, Howard and Taylor both testified that Henderson told them Zan
    promised him (Henderson) $25,000 from Charles Zan’s life insurance policy in return for
    Henderson’s killing Charles Zan. Even if these statements were hearsay, they were also
    harmless. Zan admitted in her statements to the police that she had promised to give
    Henderson money, to buy him a car, and to take care of his children after Charles Zan was
    dead. Sgt. Muncy testified that Zan had told him that she and Henderson planned to get
    Charles Zan’s insurance money. Hairston further testified that Zan told her that she (Zan)
    and her son had killed her “ex-husband” for insurance money totaling $400,000.
    {¶ 52} Zan’s second assignment of error is overruled.
    III.
    {¶ 53} Zan’s third assignment of error states:
    THE TRIAL COURT ABUSED HER DISCRETION IN SENTENCING
    DEFENDANT.
    23
    {¶ 54} In her third assignment of error, Zan claims that the trial court’s aggregate
    sentence of life in prison without the possibility of parole, plus 25 years, was an abuse of
    discretion.       She emphasizes that, while she did not stop Henderson from killing her
    husband, she was not the person who actually killed Charles Zan.
    {¶ 55}      We review a felony sentence using a two-step procedure. State v. Kalish,
    
    120 Ohio St.3d 23
    , 
    2008-Ohio-4912
    , 
    896 N.E.2d 124
    , ¶ 4. “The first step is to ‘examine the
    sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
    to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
    Stevens, 
    179 Ohio App.3d 97
    , 
    2008-Ohio-5775
    , 
    900 N.E.2d 1037
    , ¶ 4 (2d Dist.), quoting
    Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
    be ‘reviewed under an abuse-of-discretion standard.’” 
    Id.
    {¶ 56} The trial court has full discretion to impose any sentence within the
    authorized statutory range, and the court is not required to make any findings or give its
    reasons for imposing maximum or more than minimum sentences. See State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    , at paragraph seven of the syllabus .
    However, the trial court must comply with all applicable rules and statutes, including R.C.
    2929.11 and R.C. 2929.12. State v. Mathis, 
    109 Ohio St.3d 54
    , 
    2006-Ohio-855
    , 
    846 N.E.2d 1
    , ¶ 37.1 Zan has not argued that her sentence was contrary to law.
    {¶ 57}      Upon review of the record, we disagree with Zan’s contention that her
    sentence was an abuse of discretion. There was substantial evidence at trial that Zan
    1
    Zan was sentenced on April 21, 2011, prior to the effective date of Am.Sub.H.B. 86, which amended Ohio’s
    sentencing scheme. Accordingly, the trial court was not required to make statutory findings prior to imposing consecutive
    sentences.
    24
    planned the murder of Charles Zan with Henderson. Several witnesses testified that Zan
    and Henderson discussed killing Charles Zan for insurance money. Zan offered to give
    $25,000 to Henderson and to use the money to buy things for Henderson and his children.
    Zan and Henderson discussed several ways that Charles could be killed, and ultimately
    decided that Henderson would slit his throat. Zan rented a car for Henderson, in part so that
    he had a vehicle to get to and away from the Zans’ apartment. Henderson showed Zan the
    knife he planned to use to kill Charles. Prior to the murder, Zan moved her husband’s
    firearm from the bedside table so that he would not be able to shoot Henderson when
    Henderson came to murder him. Zan let Henderson into the apartment on the morning of
    October 17, 2009; Henderson then stabbed Charles Zan more than 40 times. Charles Zan
    was still alive when Zan returned to the apartment. Instead of seeking aid for him, she
    assisted Henderson when he asked for her help. Zan wiped up blood evidence and held a
    bag while Henderson put laptops and Charles’s gun into it. After the murder, Zan called the
    police and lied about what had happened. She also asked Henderson’s friend, Howard, to
    sell the laptops.
    {¶ 58} Although it was Henderson, not Zan, who fatally stabbed Charles Zan, Zan
    was equally culpable in the murder and robbery, and she obstructed justice and tampered
    with evidence in her efforts to avoid her and Henderson’s apprehension. As stated by the
    trial court, Zan “was the primary facilitator and the primary reason for the murder of Charles
    Zan.” Zan had prior felony convictions, including offenses involving violence and firearms.
    The court found that Zan had not shown genuine remorse. We find no abuse of discretion
    in the trial court’s decision to impose maximum consecutive sentences, totaling life in prison
    25
    without the possibility of parole, plus 25 years.
    {¶ 59} Zan’s third assignment of error is overruled.
    IV.
    {¶ 60} The trial court’s judgment will be affirmed.
    ..........
    DONOVAN, J. and HALL, J., concur.
    Copies mailed to:
    R. Lynn Nothstine
    Robert Alan Brenner
    Hon. Mary L. Wiseman