State v. Boyce , 2020 Ohio 3573 ( 2020 )

[Cite as State v. Boyce, 2020-Ohio-3573.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
:
STATE OF OHIO :
: Appellate Case No. 2018-CA-77
Plaintiff-Appellee :
: Trial Court Case No. 2017-CR-761A
v. :
: (Criminal Appeal from
RAMON A. BOYCE : Common Pleas Court)
:
Defendant-Appellant :
...........
OPINION
Rendered on the 2nd day of July, 2020.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CRAIG M. JAQUITH, Atty. Reg. No. 0052997, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Ramon A. Boyce was found guilty after a jury trial in the Clark County Court
of Common Pleas of one count of engaging in a pattern of corrupt activity (a felony of the
first degree), 18 counts of burglary (one felony of the second degree and 17 felonies of
the third degree), and six counts of receiving stolen property (three felonies of the fifth
degree and three misdemeanors of the first degree). The trial court imposed consecutive
sentences totaling 70 years in prison, ordered Boyce to pay restitution of $3,049.94, and
ordered the forfeiture of Boyce’s three vehicles.
{¶ 2} Boyce appeals from his convictions. He claims that (1) the trial court erred
in denying his motion to suppress related to a traffic stop, (2) the trial court erred in
allowing evidence under Evid.R. 404(B) at trial, (3) the trial court erred when it provided
no limiting instruction prior to testimony about Boyce’s prior burglary conviction and when
it later did not give a proper limiting instruction about that testimony, and (4) his sentence
is clearly and convincingly unsupported by the record. For the following reasons, the
trial court’s judgment will be vacated as to the conviction on Count 19, and the matter will
be remanded for the limited purpose of filing an amended judgment entry. In all other
respects, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 3} Boyce’s jury trial lasted 15 days, during which the State presented 85
witnesses and Boyce offered 12 witnesses. The pertinent facts underlying the present
appeal are summarized as follows.1
1 Boyce has not raised an assignment of error challenging the sufficiency of the State’s
evidence or claiming that his convictions were against the manifest weight of the
evidence. (Boyce, who is represented by counsel on appeal, attempted to do so in a pro
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{¶ 4} Boyce’s relevant criminal behavior began in 2005. In Clark C.P. No. 05-CR-
1114, Boyce was convicted of three counts of receiving stolen property, all fifth-degree
felonies; Boyce had an accomplice for those offenses. In Clark C.P. No. 08-CR-363,
Boyce was convicted of another charge of receiving stolen property, a fifth-degree felony;
the stolen property was a television. Boyce was acquitted of other charges in that case.
{¶ 5} In Case No. 08-CR-612, Boyce was convicted of burglary, a third-degree
felony, and receiving stolen property, a fifth-degree felony. These charges arose from
the burglary of the home of Charles and Jade Parsons on North Limestone Street in
Springfield. The Parsons’ home was surrounded by woods and had a lengthy driveway
with the mailboxes for the Parsons and their neighbors situated side-by-side on
Limestone Street, a distance away from the houses. The Parsons’ home had an alarm
system.
{¶ 6} In early June 2008, Jade Parsons and her husband were out of town, and
they asked a friend to get their mail and newspapers from the mailbox. Mrs. Parsons
had left on Saturday morning, and the friend went to the home on Sunday. The friend
noticed something wrong and called the police. Upon her return, Mrs. Parsons noticed
that every drawer was open and the house had been “ransacked.” The cable, telephone,
and alarm system lines had been cut. Jewelry was missing from upstairs, but Mrs.
Parsons’s costume jewelry was not taken. The couple’s safe in the basement had been
pried and drilled open with the Parsons’ tools. The safe had contained some gold coins,
cash, guns, and jewelry. Over time, Mrs. Parsons discovered that additional items were
se brief, but we denied his motion for leave to file a pro se brief.) Accordingly, our
summary of the facts is not an exhaustive recitation of the evidence at trial, and it provides
an overview of the State’s evidence only.
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missing.
{¶ 7} Mail addressed to the Parsons and their neighbors was collected in a wooded
area approximately 250 feet south of the main driveway of the Parsons’ home. Boyce’s
fingerprints were found on the mail. On June 4, 2008, Boyce sold jewelry taken from the
burglary at Quick Cash Pawn, Inc., in Greendale, Indiana. Investigators later asked Mrs.
Parsons to go to a pawnshop in Indiana to look at some property; Mrs. Parsons identified
three or four items as hers. Boyce was convicted of the burglary of the Parsons’ home
and sentenced to prison.
{¶ 8} While incarcerated, Boyce met and befriended Chris Burkhart. Burkhart
testified that Boyce identified himself as “a master thief,” who knew how to break into
safes and get around alarm systems. Boyce told Burkhart that he (Boyce) made a lot of
money from burglaries, and the two agreed “to go 50/50 on everything that we did once
we were out.”
{¶ 9} Boyce was released from prison on January 27, 2016, and went to stay at a
Volunteers of America halfway house. On March 10, Boyce was placed on an electronic
monitor. Boyce returned to the Volunteers of America facility on March 28, and his
monitor was removed. In April 2016, the home of Kristy and Steven McCready on Bexley
Avenue was burglarized. Boyce entered through a bedroom window and stole jewelry,
silver flatware, and watches. On May 6, Boyce was taken into custody for violating
certain terms of his release, and he returned to prison, where he remained until the
completion of his sentence on July 24, 2016.
{¶ 10} Soon after Boyce’s release from prison, Boyce entered the homes of
Tamara Compton (July 31-August 1) and of Donna and Steven Field (between August 21
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and 25), who lived on Roscommon Drive. Jewelry and cash were stolen. In September
2016, the home of Tracy and Kevin Cochran on Signal Hill Road was burglarized; Boyce
took a television and jewelry, as well as an SD card with a homemade personal video.
Each of the homes’ occupants was out of town when the burglaries occurred.
{¶ 11} Three burglaries occurred in November 2016: the homes of Ross McGregor
& Cathy Crompton on Burrwood Drive, Nancy McGregor on Signal Hill Road, and Joy
and David Galluch on Kilkenny Court. Ross McGregor testified that the burglar took
jewelry, watches, silver flatware, and a .22 caliber gun. Nancy McGregor (Ross’s aunt)
testified that the burglar took many pieces of high-end jewelry valued over $10,000, a
Kruggerand necklace; her husband's coin collection, a family heirloom ring valued at
$20,972, and cash. Joy Galluch indicated that a sorority charm, wedding band,
engagement ring, and flatware were stolen. Again, the residents were on vacation when
the burglaries occurred; in each case, Boyce entered through a window.
{¶ 12} On November 30, 2016, Burkhart was released to a halfway house in
Dayton; Burkhart still planned to work with Boyce. Boyce visited Burkhart at the halfway
house, and Burkhart met with Boyce when he received two weekend passes away from
the halfway house, during which Burkhart was not monitored. Burkhart testified that
Boyce did not have a legitimate job, but he (Burkhart) received a gift from Boyce of $400
and other items.
{¶ 13} At the end of the December 2016, the home of Claire Perks was burglarized
while Perks was on vacation in Alabama. Sometime between December 30, 2016 and
April 2017, while Donna and Richard Dolbeer wintered in Florida, Boyce entered their
home on Longford Close through a bedroom window and took jewelry, a coin collection,
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a camera, and $2,000 in cash; Boyce broke into a safe in a guest bedroom.
{¶ 14} During the weekend of February 3, 2017, while Burkhart had a weekend
pass from the halfway house, Boyce and Burkhart broke into the home of Kay and Jerry
Shell on Roscommon together. Burkhart testified that Boyce referred to it as “going to
work.” Boyce drove Burkhart to a wooded residential area, parked by a Kroger, put on
gloves and a mask, and walked past a home with a privacy fence, through the golf course,
and to the back of the Prestwick Village community. Boyce checked the mailboxes of
residences along the way. While walking, Boyce pointed out a home where he had
broken in and opened a safe.
{¶ 15} Burkhart and Boyce first removed a floodlight on the Shells’ house and then
entered the home through a window; Boyce gave Burkhart a laundry basket to stand on
so he could get through. Boyce indicated to Burkhart that certain jewelry was costume
jewelry; it was left behind. Boyce searched another part of the house while Burkhart
searched a bedroom and bathroom. Boyce instructed Burkhart to leave everything as it
was so the homeowners would not know that they had been there.
{¶ 16} The Shells had a small terrier, and they had a house/dog-sitter staying in
the home while they were away. The house-sitter woke during the early morning of
February 4 and noticed things off in the house, including that the dog was in her bedroom,
where the dog was not allowed. Burkhart testified that he heard a dog bark in the house.
Burkhart and Boyce left the Shells’ home after Boyce came back to the master bedroom
and told Burkhart, “We gotta get out of here.” Burkhart testified that Boyce later paid him
$400 for his participation in the burglary.
{¶ 17} Burkhart was released from the halfway house on February 6, 2017, and
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was placed on an electronic ankle monitor. He did not participate in any criminal
activities with Boyce while monitored. Burkhart testified that Boyce once came to visit
him and showed him $20,000 that he (Boyce) had won at a casino.
{¶ 18} Shortly before February 8, 2017, the home of Teresa and Donald Miller on
Signal Hill Road was burglarized while the Millers were in Florida. Prior to leaving, the
Millers had placed all of their valuables, including diamond rings and necklaces,
silverware, and gold jewelry, in a safe in the front hall closet. The safe was blown out
and all of the valuables taken.
{¶ 19} At trial, Donald Miller testified that eight to ten days before he and his wife
left for Florida, at around 8:30-9:30 a.m., he had observed from his home a black BMW
driving very slowly along the private road that comes down the hill from his daughter’s
home and around the front of his home. Miller indicated that the car sat at the end of the
driveway for 10 to 15 minutes; the driver was observing the area, and the driver looked
toward Miller. Miller described the BMW’s presence as “odd,” due to the time of day and
the typically “very, very mild traffic” on the private drive. On March 7, after the burglary,
Miller’s daughter emailed Miller a photo of Boyce. At trial, Miller identified Boyce as the
man he had seen driving the BMW in January 2017, prior to the Millers’ trip to Florida.
{¶ 20} At approximately 1:21 a.m. on February 17, 2017, the home of Bob and
Meredith Patton on Signal Hill Road was burglarized while they were at their cabin in
Michigan. Boyce entered through an upstairs window using a wooden ladder. He
activated an interior motion detector, and the Pattons were notified by ADT, their alarm
company. Sheriff’s deputies responded to the home, but did not find anything amiss.
At Bob Patton’s request, a neighbor checked the home again in the morning and saw a
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handmade wooden ladder that did not belong there. Upon returning, the Pattons
discovered that jewelry had been taken.
{¶ 21} On February 28, 2017, Springfield Police Officer Derrick Nichols stopped
Boyce’s vehicle for a traffic violation. During the stop, Nichols’s canine partner, Gary,
alerted to the presence of an odor of drugs. A search of Boyce’s vehicle revealed two
bags of marijuana, as well as money, a small bottle with loose diamonds, a metal testing
kit, power tools, lawn lights, cellphones, a digital scale, an SD card, and other items. The
SD card was later determined to contain the Cochrans’ homemade personal video.
{¶ 22} On March 3, 2017, Springfield Detective Michael Curtis obtained a search
warrant for Boyce’s vehicle. Several items identified during the traffic stop were retrieved
from the vehicle, as well as a Garmin GPS unit, rings, a foreign coin, a fork, earring pieces,
and a watch wristband. Detective Jerald Mitchell extracted information from the two
cellphones and the Garmin device. The Garmin device was found to belong to Peter
Freed; Freed testified that the device disappeared in April 2016. After April 2016, the
Garmin included locations associated with Boyce and his associates, as well as
pawnshops and locations of Buckeye Gold Coin and Jewelry stores, a business that buys
precious metals and diamonds.
{¶ 23} Detective Fader of the Clark County Sheriff’s Office learned that the
Springfield Police Department had impounded Boyce’s BMW.2 Detective Fader obtained
2
Some of the burglarized residences, such as those on Roscommon Drive and in
Prestwick Village, were located in the city of Springfield. Others, such as those on Signal
Hill Road, Burrwood Street, and Bexley Avenue, were located in Clark County. The
Springfield Police Department investigated the burglaries within its jurisdiction, and the
Clark County Sheriff’s Office investigated those outside of the city. The two departments
shared information regarding their investigations.
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a warrant to install a GPS tracker on Boyce’s BMW.
{¶ 24} On March 7, 2017, Detective Jean Byrne, who worked in the property
crimes unit of the Columbus Police Department, received a report from a complainant
that the complainant’s stolen Apple laptop was pinging at an address on Hidden Acres
Court (a townhouse apartment building) in Franklin County. Byrne learned that one
apartment was occupied by Boyce and Alyshia Cook and that a Ford Explorer in the lot
was registered to Cook. Byrne became aware of the Clark County investigation into
Boyce and received access to the GPS device placed on Boyce’s BMW. In addition,
Columbus police officers began to conduct physical surveillance of Boyce, including
following Boyce to different locations that purchased gold and silver.
{¶ 25} On approximately March 22, 2017, Boyce entered the home of Drs. Afshan
and Ashfaq Ahmed on Burrwood Drive through a bathroom window; the Ahmeds were
out of town at the time, but Afshan Ahmed’s father-in-law was staying at the house.
Boyce took jewelry, watches, and items from a safe.
{¶ 26} On March 31, 2017, a Springfield police officer pulled over a 2002 Ford
Explorer that Boyce was driving, because the plates were registered to a different vehicle.
Boyce ultimately received a ticket and was allowed to leave.
{¶ 27} Detective Byrne testified that she noticed a pattern to Boyce’s activities in
the Beechwold neighborhood, where a home recently had been burglarized. She stated
that Boyce would drive slowly through the neighborhood in the evening and then return
after 1:00 a.m., park behind a business, and enter the neighborhood on foot. Boyce
typically would leave between 3:00 and 4:00 a.m. and return to the Hidden Acres
apartment.
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{¶ 28} In the early hours of April 3, Columbus police officers observed Boyce as
he entered the Beechwold neighborhood; Detective Byrne watched Boyce’s parked BMW
as other officers in plain clothes surveilled inside the neighborhood. After locating a
home on West Royal Forest Boulevard inside which a person was walking with a
flashlight, Officers Jason Clark and Adam Hardwick saw Boyce jump out of a front window
of the home carrying two bags and then run toward his car. Around 4:45 a.m., Detective
Byrne saw Boyce run to his car, put two bags in the vehicle, and drive off. Byrne followed
in her vehicle and arranged for cruisers to intercept Boyce. However, Boyce saw a
cruiser coming, sped up, and crashed his car; Boyce ran from the vehicle toward his
apartment. Byrne instructed the other officers to allow Boyce to return home. Byrne
obtained an arrest warrant for Boyce and a search warrant for his apartment.
{¶ 29} Columbus officers executed the search warrant that day (April 3).
Detective Byrne contacted Detective Fader, who came to the scene and photographed
potential stolen items. The Apple laptop reported by the Columbus complainant was
found almost immediately; officers also found an extensive collection of silverware,
jewelry, coins, correspondence, stamps, and other items. The property was collected
and taken to the Columbus Police Department’s property room. Boyce was arrested for
the April 3 burglary. The following day, Detective Byrne obtained a search warrant for
the crashed BMW and recovered items stolen on April 3.
{¶ 30} Boyce was released on bond, and Columbus police officers continued to
watch Boyce’s movements. Boyce first drove a red Pontiac and later a silver Chrysler
300. According to Detective Byrne, Boyce resumed his prior behavior, and in June, the
Columbus police obtained a warrant to place a GPS tracker on Boyce’s silver Chrysler
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300.
{¶ 31} Burkhart’s electronic monitoring ended on May 25, 2017, and he resumed
crimes with Boyce in Springfield/Clark County. Burkhart testified that they usually parked
by a Tim Horton’s and ended up behind the Prestwick Village community. They checked
mailboxes and garages as they went to check if mail were piling up and if people were
home. Some nights they did not break into any houses. Burkhart testified that Boyce
pointed out a house where he (Boyce) had stolen a pair of diamond earrings worth
$10,000, as well as other homes that he (Boyce) had burglarized.
{¶ 32} In late May, the home of John Koehler, who resided in a nursing home, was
burglarized. The stolen items included a wedding band, an engagement ring, jewelry
with stones representing children and grandchildren, guns, and silver coins and bars.
{¶ 33} In June 2017, Boyce and Burkhart burglarized several condominiums in the
Prestwick Village community. Burkhart described one burglary where he needed to use
a bench to look in a window. He stated that, at another home (the Haemmerles’), they
unplugged the Christmas tree lights, entered through a window, and took jewelry and two
guns. Burkhart stated that he wanted to take a BOSE stereo, but Boyce told him to put
it back because it would be too noticeable; Boyce reset the clock on the stereo before
leaving.
{¶ 34} Burkhart described another burglary (the Timmons’s home) where they
moved patio furniture, and Boyce used a screwdriver to open a window. Burkhart stated
that they found a vase full of coins and, in a bedroom armoire, a sterling silver set and
jewelry. They carried the items in a pillowcase. Upon leaving, Boyce put the patio
furniture back into place.
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{¶ 35} In the early morning hours of June 21, Boyce and Burkhart returned to
Prestwick Village. Detective Brian Peabody of the Springfield Police Department, who
had access to the GPS data on Boyce’s Chrysler 300, coordinated with the Clark County
Sheriff’s Office to watch for Boyce. Officers saw two men walking in the neighborhood,
but the officers could not confirm that a burglary occurred. Burkhart testified that when
he and Boyce saw headlights, they ran back to their car. After the two entered the
Chrysler, Detective Peabody pulled in front of it to stop it. However, Boyce put the car
in reverse and fled.
{¶ 36} Burkhart testified that Boyce’s car “sputtered and died” in a nearby alley.
Boyce and Burkhart grabbed their identification, and Boyce grabbed his phone and some
items from the trunk, the license plates from the vehicle, the screwdriver, and gloves.
The two ran from the vehicle. Burkhart stated that Boyce tripped and dropped his phone,
and ultimately left without it. The two ended up hiding for several hours. Officers
searched for Boyce and his accomplice, but did not locate them.
{¶ 37} On the night of July 6-7, Boyce visited with Kayla Carter and left Carter’s
residence at 12:49 a.m. Sometime later, Boyce and Burkhart entered the home of Joan
and Peter Geil through a window on the back porch. They took silver flatware, jewelry,
cash, and silver coins from a safe in the basement. Boyce and Burkhart wiped their
footprints from the back porch before they left. Boyce returned to Carter’s apartment
while she was still in bed. After waking, Carter noticed a bag that had not previously
been in her apartment. That afternoon, United States Marshals arrested Boyce at
Carter’s home on an arrest warrant, and officers collected numerous items from the
apartment. The Geils identified most of the items collected from Carter’s residence as
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theirs.
{¶ 38} The State presented extensive evidence that Boyce kept stolen items at
multiple residences, including his and Alysia Cook’s Columbus residence on Hidden
Acres, his sister’s apartment in Columbus, and the apartment of Chelsea Quisenberry in
Springfield. Burkhart testified that he had met Cook at the apartment in Columbus and
had met Quiana Boyce, Boyce’s sister, at her home. Burkhart remembered Boyce’s
having stolen diamonds at his sister’s house. In addition, witnesses testified that Boyce
tested the stolen diamonds (to determine if they were real) and gold items (to determine
carat) and dismantled jewelry prior to selling the items. Both Burkhart and Victoria Nored
testified that they had observed Boyce break jewelry apart; Burkhart stated that he saw
Boyce separate diamonds from gold or silver with pliers.
{¶ 39} There was substantial evidence that Boyce had other individuals sell stolen
items at pawn shops or stores that purchased gold and silver. Kyle Smith, Shaqueeta
Terrell, Quiana Boyce, and Kenia Lacey sold numerous items at various Buckeye Gold
Coin and Jewelry locations. On seven different occasions, Terrell, Lacey, Quiana Boyce,
Nored, or Cook sold items at Allen’s Coin Shop in Westerville. At trial, Nored described
the two times that Boyce drove her to Allen’s Coin Shop (May 31, 2017 and June 19,
2017) to sell items for him; she stated that Boyce paid her $50 each time for her efforts.
Burkhart also testified that Boyce said that he (Boyce) would drive someone to various
jewelry stores in Columbus to sell the items he stole. Burkhart stated that he once went
with Boyce and Kyle to a jewelry store, where Kyle sold the items and gave the receipt
and $900 or $1,000 to Boyce; Boyce paid Kyle about $40 for selling the items for him.
Burkhart once sold a Ziploc bag of small diamonds for Boyce at the jewelry store near
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Burkhart’s home.
{¶ 40} In 2017, many of the burglary victims were invited to look at property that
had been recovered during the Springfield/Clark County and Columbus investigations.
Mrs. Parsons found a locket of hers containing her and her sister’s baby photos and family
correspondence that had belonged to her father; the locket and correspondence had been
missing since the 2008 burglary. Many of the complainants from the 18 burglaries in
2016 and 2017 identified something that had been stolen from their homes. Some
complainants were able to identify their property as property sold by Boyce’s associates
to a pawn shop or a store that bought precious metals.
{¶ 41} In December 2017, Prestwick Village residents Jim and Judy Roediger
received an email from Kay Shell in which Shell asked if anyone could identify a fraternity
pin that the police had recovered. The Roedigers recognized the pin as belonging to Mr.
Roediger. At that juncture, the Roedigers realized that their home had previously been
burglarized and that additional items, including silver dollars and jewelry, were missing.
{¶ 42} In June 2017, Boyce was originally charged with 19 counts: one count of
engaging in pattern of corrupt activity and numerous counts of burglary and receiving
stolen property. See Clark C.P. No. 2017-CR-365A. The State charged Boyce with two
additional counts of burglary and one additional count of receiving stolen property in
August 2017. See Clark C.P. No. 2017-CR-510.
{¶ 43} In November 2017, as part of Case No. 2017-CR-365A, Boyce filed three
motions to suppress evidence against him. The first motion to suppress challenged the
lawfulness of the February 28, 2017 stop and search of his BMW, the March 2 search of
the BMW pursuant to a search warrant, the March 3 search of three cellphones and the
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Garmin GPS device found in the vehicle, and sought to suppress any statements he
made. The second motion sought to suppress any evidence obtained as a result of the
April 5, 2017 search of the BMW, pursuant to a search warrant. The third motion sought
to suppress the evidence seized from the execution of the April 3, 2017 search warrant
at Alysia Cook’s residence on Hidden Acres Court in Columbus.
{¶ 44} On December 4, 2017, Boyce was indicted in this case, Case No. 2017-CR-
761A, on fourteen counts of burglary as third-degree felonies; one count of burglary as a
second-degree felony; six counts of receiving stolen property, three of which were fifth-
degree felonies and three of which were misdemeanors of the first degree; and one count
of engaging in a pattern of corrupt activity, a first-degree felony.3 The indictment also
sought the forfeiture of three vehicles owned by Boyce.
{¶ 45} Soon thereafter, the State filed a notice, pursuant to Evid.R. 404(B), that it
intended to present evidence at trial regarding the facts underlying Boyce’s prior
conviction for burglary in Case No. 2008-CR-612 (the Parsons burglary), which was listed
as one of the predicate acts for the engaging in corrupt activity charge.
{¶ 46} On December 19, 2017, the court ordered that the filings in the two prior
cases to be incorporated into Clark C.P. No. 2017-CR-761A, and that the two prior cases
be dismissed.
{¶ 47} In January 2018, in Case No. 2018-CR-55, the State charged Boyce with
three additional counts of burglary, one of which was a second-degree felony and two of
3 The indictment also included three additional charges of receiving stolen property by
co-defendants Kenia Lacey, Shaqueeta Terrell, and Quiana Boyce (Counts 17-19).
Those co-defendants, as well as Alyshia Cook, were named with Boyce in Count 25,
alleging engaging in a pattern of corrupt activity.
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which were third-degree felonies. The trial court subsequently consolidated Case No.
2018-CR-55 into Case No. 2017-CR-761A.
{¶ 48} As a result of the various consolidations, Boyce faced 25 counts in this case:
one count of engaging in a pattern of corrupt activity; 18 counts of burglary; and six counts
of receiving stolen property. The charges are reflected in the following table.
Count Charge Statute Degree Complainant4
1 Burglary R.C. 2911.12(A)(3) F3 McCready
2 Receiving Stolen Property R.C. 2913.51(A) F5 McCready
3 Burglary R.C. 2911.12(A)(3) F3 Compton
4 Burglary R.C. 2911.12(A)(3) F3 Field
5 Burglary R.C. 2911.12(A)(3) F3 Cochran
6 Receiving Stolen Property R.C. 2913.51(A) M1 Cochran
7 Burglary R.C. 2911.12(A)(3) F3 R. McGregor
8 Burglary R.C. 2911.12(A)(3) F3 N. McGregor
9 Burglary R.C. 2911.12(A)(3) F3 Perks
10 Burglary R.C. 2911.12(A)(3) F3 Dolbeer
11 Burglary R.C. 2911.12(A)(3) F3 Miller
12 Receiving Stolen Property R.C. 2913.51(A) M1 Miller
13 Burglary R.C. 2911.12(A)(3) F3 Patton
14 Receiving Stolen Property R.C. 2913.51(A) M1 Patton
15 Burglary R.C. 2911.12(A)(1) F2 Ahmed
16 Receiving Stolen Property R.C. 2913.51(A) F5 Ahmed
20 Burglary R.C. 2911.12(A)(3) F3 Koehler
21 Burglary R.C. 2911.12(A)(3) F3 Haemmerle
22 Burglary R.C. 2911.12(A)(3) F3 Timmons
23 Burglary R.C. 2911.12(A)(3) F3 Geil
24 Receiving Stolen Property R.C. 2913.51(A) F5 Geil
Engaging in a Pattern of
25 R.C. 2923.32(A)(1) F1 N/A
Corrupt Activity
26 Burglary R.C. 2911.12(A)(3) F3 Galluch
4 The complainants were identified on the verdict forms, not in the indictment.
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27 Burglary R.C. 2911.12(A)(1) F2 Shell
28 Burglary R.C. 2911.12(A)(3) F3 Roediger
{¶ 49} On January 8, 2019, the trial court held a hearing on Boyce’s motions to
suppress. The State presented the testimony of Officer Derrick Nichols regarding the
February 28, 2017 traffic stop and the testimony of Detective Jean Byrne regarding
search warrants obtained in Franklin County, along with eight exhibits. Boyce testified
on his own behalf. On January 24, 2019, the trial court overruled the motions, concluding
that Officer Nichols lawfully stopped Boyce’s vehicle for the traffic offense he witnessed,
that the officer “was diligent in his investigation in the course of the lawful traffic stop,”
that the dog sniff did not constitute a search, and that the dog’s alert provided probable
cause to search Boyce’s vehicle. The court further found that the issuing judges had a
substantial basis for concluding that the affidavits accompanying the five search warrants
at issue contained sufficient indicia of probable cause to satisfy the Fourth Amendment.5
{¶ 50} In March 2018, Boyce expressed to the trial court that he wished to fire his
attorney and proceed pro se. After a hearing on the matter, the trial court granted
Boyce’s motion and Boyce signed a written waiver of counsel. Boyce’s prior defense
counsel was appointed as stand-by counsel.
{¶ 51} On April 19, 2018, at a pretrial conference, the court addressed, among
5The State also raised that Boyce had previously challenged the traffic stop in the Clark
County Municipal Court (Clark M.C. Nos. 17-CRB-782 and 17-TR-2462). The trial court
decided against applying res judicata to the municipal court’s decision, because (1)
Boyce, at that time, believed he was only defending himself against traffic and
misdemeanor offenses and therefore may not have thoroughly developed all issues
potentially related to more serious offenses, and (2) Boyce had represented himself in the
municipal court, but was represented by counsel in the common pleas court.
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other matters, the State’s request to use Evid.R. 404(B) evidence at trial. The court
concluded that the evidence was admissible for the limited purposes presented by the
State to show intent, identity, preparation, and plan. The trial court further concluded
that “the prejudicial effect upon the defendant is negligible since said conviction is listed
as a predicate act under the engaging in a pattern of corrupt activity offense and therefore
it would have lawfully been presented and admitted irrespective of the 404(B) issue.”
{¶ 52} The matter proceeded to a lengthy jury trial beginning on April 23, 2018.
Boyce offered several witnesses and testified on his own behalf. Stated generally, he
denied that he participated in any of the burglaries in 2016 and 2017, and he asserted
that his alleged accomplices sold only items that lawfully belonged to them. Boyce
claimed that the complainants were mistaken when they identified property as theirs.
{¶ 53} After deliberations, the jury convicted Boyce of all counts, with the exception
that one burglary charge (Count 15) was reduced from a second-degree felony to a third-
degree felony. The jury found that all 15 of the alleged predicate acts for engaging in a
pattern of corrupt activity were proven beyond a reasonable doubt and that the three
identified vehicles were subject to forfeiture to the State.
{¶ 54} The court subsequently sentenced Boyce as follows:
OFFENSE COUNT(S) DEGREE SENTENCE
Engaging in a Pattern of
25 F1 11 years
Corrupt Activity
Burglary 27 F2 8 years
Burglary 1, 3-5, 7-11, 13, 15,
F3 3 years
20-23, 26, 28
Receiving Stolen Property 2, 16, (196), 24 F5 1 year
6 The trial court, orally and in its judgment, imposed a one-year sentence on Count 19,
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Receiving Stolen Property 6, 12, 14 M1 6 months
The trial court ordered the sentences for burglary and engaging in a pattern of corrupt of
activity to be served consecutively, for an aggregate sentence of 70 years in prison. The
trial court ordered that the sentences for felony receiving stolen property be served
consecutively to each other, but that all of the sentences for receiving stolen property
(felony and misdemeanor) be served concurrently with the sentences for burglary and
engaging in a pattern of corrupt of activity. The court notified Boyce that five years of
post-release control was mandatory in this case.
{¶ 55} The trial court ordered Boyce to pay restitution of $3,049.94, to be satisfied
from the money that had been seized from Boyce. The court further ordered that Boyce’s
three vehicles be forfeited to the State for law enforcement use.
{¶ 56} Boyce appeals, raising four assignments of error. We will address them in
a manner that facilitates our analysis.
II. Motion to Suppress
{¶ 57} In his third assignment of error, Boyce claims that the trial court erred in
denying the motion to suppress that challenged the warrantless search of his vehicle.
Boyce argues that the police officer unreasonably prolonged the traffic stop by conducting
which concerned one of Boyce’s co-defendants, Quiana Boyce, only. The court ordered
the sentences for felony receiving stolen property to be served consecutively, for a total
of four years. On May 29, 2018, in an effort to correct the error, the trial court filed an
amended judgment, striking the one-year sentence on Count 19 and amending the first
full paragraph on page five to read, “IT IS FURTHER ORDERED that all felony receiving
stolen property offenses (Counts 2, 16, and 24) run consecutively to one another for a
total of three (3) years OSP.” (Emphasis sic.) We will discuss the effect of the trial
court’s amended judgment in our discussion of Boyce’s sentence below.
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a free air sniff with the officer’s canine partner. Boyce had also challenged the validity
of several search warrants in the trial court, but he does not claim on appeal that the trial
court erred in overruling his motions to suppress as it related to the search warrants.
{¶ 58} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-
116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. Retherford
at 592. “Accepting those facts as true, we must independently determine as a matter of
law, without deference to the trial court’s conclusion, whether they meet the applicable
legal standard.” Id.{¶ 59} Springfield Police Officer Derrick Nichols testified on the behalf of the
State. 7 According to his testimony, Officer Nichols had been an officer with the
Springfield Police Department for 11 years and had been a canine officer for four years.
Nichols’s canine partner was named Gary. Gary had three weeks of skills training,
learning tracking, drug smells, and the like. Both Nichols and Gary went through
specialized training with a master trainer in Fremont, Ohio, and were certified through the
State of Ohio and nationally. The two had continuing training together.
{¶ 60} Shortly before 7:30 p.m. on February 28, 2017, Officer Nichols and Gary
7 The State also called Detective Jean Byrne of the Columbus Division of Police, who
testified regarding search warrants and an arrest warrant for Boyce that were obtained in
Franklin County. The detective’s testimony and the accompanying exhibits are not
relevant to the issue before us.
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were in a marked cruiser on East Pleasant Street at the intersection with South Limestone
Street in Clark County. Nichols testified that he was stopped at a red light behind a black
BMW in the turn lane to go south on South Limestone. When the light turned green, the
BMW proceeded straight through the intersection. Officer Nichols got behind the BMW
and ran the license plate. The plate came back to Boyce. Nichols was aware that
Boyce was a suspect in some thefts and burglaries in Clark County.
{¶ 61} At 7:32 p.m., Officer Nichols initiated a traffic stop for the lane violation.
Nichols testified that he walked up to the BMW and recognized Boyce as the driver;
Nichols also identified Boyce as the driver at the suppression hearing. There were no
passengers. The officer talked with Boyce and obtained Boyce’s driver’s license and
insurance card.
{¶ 62} Nichols returned to his cruiser and relayed Boyce’s information to dispatch.
The dispatch log indicated that Boyce’s birthdate and Social Security number were
provided or entered at 7:35 p.m. A minute later, dispatch indicated that Boyce did not
have any warrants, was a career criminal for aggravated robbery, and had a valid license.
{¶ 63} About that time, Officer Freeman arrived, and Officer Nichols notified
dispatch that he was going to “run the dog around the car.” The officers had Boyce exit
his vehicle, and Officer Nichols patted him down. Officer Freeman stood with Boyce at
the sidewalk while Officer Nichols got Gary from his cruiser.
{¶ 64} Officer Nichols proceeded to walk Gary around the BMW, beginning at the
rear passenger side of the vehicle, then along the passenger side and around the front.
Officer Nichols testified that Gary stopped at the driver’s window, hopped up and put his
head inside briefly, and then sat down. Officer Nichols continued down the car, and Gary
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“started positively indicating by pawing or scratching at the driver’s door.” Nichols
testified that six minutes elapsed between the stop of the BMW and the positive indication
by Gary. He stated that a typical traffic stop takes approximately 14 minutes.
{¶ 65} Following Gary’s positive alert, Officers Freeman and Nichols searched
Boyce’s vehicle. They located scales and approximately 53 grams of marijuana in the
trunk of the vehicle. At 7:47 p.m., Officer Nichols indicated to dispatch that he had an
individual in custody. Nichols stated that he arrested Boyce for possession of and
trafficking in marijuana.
{¶ 66} Boyce testified on his own behalf. Boyce acknowledged that he was
driving alone in his BMW on February 28, 2017, when he was stopped by the police.
Boyce stated that, when he was taken out of his vehicle, the officer “forced me to stand
on the side of the sidewalk.” He was not handcuffed, but an officer was standing there
with him. Boyce testified that 15 to 20 minutes elapsed between the stop and when the
dog approached his vehicle.
{¶ 67} Boyce saw an officer begin to walk his canine around the passenger side of
Boyce’s vehicle, and Boyce moved around so that he could watch what was happening.
Boyce claimed he did not see the dog go near the driver’s door of the vehicle or alert.
Boyce testified that, when Officer Nichols was standing by the driver’s side headlight,
Officer Nichols said that the dog had alerted. Boyce said that he never saw the dog near
the driver’s door, nor did he see the dog scratch or paw at his car. On redirect
examination, Boyce asserted that the dog acted differently during another traffic stop on
a later date. On re-cross examination, however, Boyce agreed that he was pulled over
around that same time period by a different canine officer, Officer Kevin Hoying; Boyce
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did not know if Officer Hoying had the same dog.
{¶ 68} After Officer Nichols indicated that his dog had alerted, Officer Freeman told
Boyce that the officers could search his vehicle. Boyce acknowledged that the officers
found marijuana during the search of his car. He also stated that he owned the
cellphones, SD card, digital scale, jewelry, precious metals testing kit, masks, sander,
bag of small bottles, gold light box, and landscaping lights that also were in the vehicle.
Boyce stated that he was handcuffed after the search was completed.
{¶ 69} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or
temporarily detain individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot, including a
minor traffic violation. Id.; State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 7-8. We determine the existence of reasonable suspicion by evaluating
the totality of the circumstances, considering those circumstances “through the eyes of
the reasonable and prudent police officer on the scene who must react to events as they
unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting
State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶ 70} Boyce does not claim that the initial stop of his vehicle was unlawful.
Nevertheless, the trial court found, and we agree, that Officer Nichols’s observation of
Boyce’s driving straight through an intersection from a marked turn lane provided
reasonable suspicion that Boyce had committed a traffic violation, thus justifying the
officer’s stop of the BMW.
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{¶ 71} Law enforcement officers may detain the driver and any passengers only
for the time necessary to complete the reason for the stop. Kettering v. Maston, 2d Dist.
Montgomery No. 27567, 2018-Ohio-1948, ¶ 17. When a law enforcement officer stops
a vehicle for a traffic violation, the officer may detain the motorist for a period of time
sufficient to issue the motorist a citation and perform routine procedures, such as a
computer check on the motorist’s driver’s license, registration and vehicle plates. Id;
State v. Thomas, 2d Dist. Montgomery No. 22833, 2009-Ohio-3520, ¶ 14, citing State v.
Pryor, 2d Dist. Montgomery No. 20800, 2005-Ohio-2770, ¶ 15.
{¶ 72} “[A] police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against unreasonable seizures. A
seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful
if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing
a ticket for the violation.” Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191
L.Ed.2d 492 (2015). Rodriguez made clear “that an officer may not prolong a traffic stop
to perform a drug sniff even if the ‘overall duration of the stop remains reasonable in
relation to the duration of other stops involving similar circumstances.’ ” State v. Hall,
2017-Ohio-2682, 90 N.E.3d 276, ¶ 13 (2d Dist.), quoting Rodriguez, 575 U.S. at 357.
{¶ 73} A police officer need not have a reasonable suspicion that a vehicle
contains contraband prior to summoning a canine drug unit or conducting a canine free
air sniff. Thomas at ¶ 15. Furthermore, the use of a trained narcotics dog to sniff an
automobile does not constitute a “search” under the Fourth Amendment. State v.
Raslovksy, 2d Dist. Clark No. 2019-CA-55, 2020-Ohio-515, ¶ 14, citing Illinois v. Caballes,
543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). If a trained canine alerts to the
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odor of drugs from a lawfully stopped and detained vehicle, an officer has probable cause
to search the vehicle for contraband.8 Id., citing Florida v. Harris, 568 U.S. 237, 250, 133
S.Ct. 1050, 185 L.Ed.2d 61 (2013).
{¶ 74} In this case, Boyce emphasizes that he was stopped by a canine officer,
whose canine partner was in the cruiser. Boyce argues that Officer Nichols should have
been working on the traffic citation instead of walking his dog around Boyce’s vehicle and
that the officer’s decision to walk his canine partner around Boyce’s vehicle unlawfully
prolonged the stop.
{¶ 75} We find Boyce’s circumstances to be similar to those in Maston, 2d Dist.
Montgomery No. 27567, 2018-Ohio-1948. In that case, the vehicle in which Maston was
a passenger was stopped by Officer Maloney, a canine officer, due to a traffic violation.
Upon stopping the vehicle, Maloney approached the vehicle and recognized the couple,
who had been involved in several domestic incidents that had resulted in the arrest of
Maston. The officer asked if he could search the vehicle, but he did not get a clear
response. Officer Maloney called for back-up and then proceeded to look into the
couple’s “criminal history” and “call history” on Justice Web and to begin writing a traffic
ticket. Another officer, Officer Anderson, arrived seven minutes after the stop began,
8 We recognize that the passage of Ohio’s hemp legalization law and the legalization of
medical marijuana in Ohio complicates whether an alert by a dog trained to detect
marijuana provides probable cause to search a vehicle. However, neither the motion to
suppress nor any argument at the suppression hearing raised whether Gary’s alert was
sufficient to establish probable cause to search Boyce’s vehicle. Accordingly, the issue
is waived. See, e.g., State v. Matthews, 2d Dist. Miami No. 2014-CA-23, 2015-Ohio-
1750, ¶ 29 (defendant waived any argument regarding the dog’s or handler’s
qualifications for purposes of appeal by failing to raise these issues in his motion to
suppress and failing to object at the suppression hearing to the officer’s testimony about
the use of the dog to establish probable cause to search the vehicle).
-26-
while Office Maloney was still in the process of writing the traffic ticket. At that juncture,
the occupants were removed from the vehicle, and Officer Maloney walked his canine
partner, Jax, around the vehicle. Jax alerted to the presence of illegal drugs. The
officers subsequently searched the vehicle and located marijuana and Xanax.
{¶ 76} On review, we held that the traffic stop had not been unlawfully prolonged
by the search of the vehicle. We reasoned that “Officer Maloney’s testimony at the
suppression hearing demonstrated that, as required by Rodriguez, he diligently
performed the tasks necessary to complete the traffic stop until Officer Anderson arrived,
at which time he conducted the free-air sniff by Jax.” Id. at ¶ 20. And, once Jax alerted
on the vehicle, indicating the presence of illegal drugs, the officers had probable cause to
search the vehicle. Id.
{¶ 77} According to Officer Nichols’s testimony, which the trial court believed,
Officer Nichols stopped Boyce’s vehicle at 7:32 p.m. and obtained Boyce’s driver’s license
and insurance card. The officer then returned to his cruiser and provided Boyce’s
information to dispatch; Boyce’s birthdate and Social Security number were provided or
entered into the dispatch log at 7:35 p.m. About a minute later, another officer arrived,
and dispatch also responded with information about Boyce. After Officer Freeman’s
arrival, Boyce was removed from his vehicle, and Officer Nichols proceeded to walk Gary
around Boyce’s BMW.
{¶ 78} As with Maston, Officer Nichols diligently conducted the traffic investigation
up to the time when the officers removed Boyce from his vehicle and Officer Nichols
walked his canine partner around Boyce’s BMW. Officer Nichols spent the first four
minutes performing the standard background investigation into Boyce through dispatch.
-27-
Officer Freeman arrived while Officer Nichols was conducting that standard background
investigation, and Officer Nichols proceeded with the free air dog sniff upon Officer
Freeman’s arrival. Gary alerted to drugs six minutes after the stop began, and his alert
provided probable cause for the officers’ search of the BMW. The traffic stop of Boyce’s
BMW was not unreasonably prolonged by Officer Nichols’s conducting a free air sniff by
his canine partner.
{¶ 79} Boyce’s third assignment of error is overruled.
III. Admission of Boyce’s Prior 2008 Burglary Conviction
{¶ 80} In his first assignment of error, Boyce claims that the “trial court erred when
it allowed the State to introduce evidence about specific facts regarding Mr. Boyce’s prior
burglary conviction.” His second assignment of error claims that the trial court erred
when it failed to provide a limiting instruction about his prior burglary conviction (the
Parsons burglary), either prior to testimony concerning the circumstances giving rise to
his prior burglary conviction or in its jury instructions at the conclusion of the testimony.
Boyce did not request a limiting instruction at trial prior to testimony about his burglary of
the Parsons’ home.
{¶ 81} According to the parties’ stipulation, filed prior to trial, Boyce was convicted
in Case No. 2008-CR-612 of a burglary that occurred at the Parsons’ residence on North
Limestone Street in Springfield. In that case, mail addressed to the Parsons and their
neighbors was collected in a wooded area approximately 250 feet south of the main
driveway of the Parsons’ home. Boyce’s fingerprints were found on the mail. On June
4, 2008, Boyce sold jewelry taken from the burglary at Quick Cash Pawn, Inc., in
Greendale, Indiana.
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{¶ 82} Count 25 of the indictment filed in this case (Case No. 2017-CR-761A)
alleged that Boyce and others engaged in a pattern of corrupt activity. The charge
alleged numerous predicate acts: 19 of the other counts alleged in the indictment, Boyce’s
prior conviction in Case No. 2005-CR-1114 for receiving stolen property, Boyce’s prior
conviction in Case No. 2008-CR-363 for receiving stolen property, Boyce’s prior
convictions for burglary and receiving stolen property in Case No. 2008-CR-612, the April
3, 2017 burglary/receiving stolen property in Franklin County, and several other instances
of receiving stolen property by Boyce and his accomplices in Franklin County in 2016 and
2017.
{¶ 83} In December 2017, the State filed a notice, pursuant to Evid.R. 404(B), that
it intended to introduce evidence of other crimes, wrongs, or acts by Boyce at trial,
specifically evidence regarding Boyce’s prior conviction for burglary in Case No. 2008-
CR-612. The State noted that the conviction was an underlying predicate act for the
count of engaging in a pattern of corrupt activity. The State further stated:
* * * In addition to the existence of the conviction, the State intends to
present limited factual evidence from the charge set forth in case number
08-CR-612. Specifically, in the 08-CR-612 case, prior to burglarizing the
residence * * *, the Defendant took mail from the mailbox of that residence
in an attempt to determine whether the inhabitants of the residence were
home. He dropped this mail in the woods near the house then broke into
the house and stole jewelry and other items. The Defendant’s fingerprints
were found on the mail recovered from the woods. [The Parsons
residence] is within a mile of several of the houses burglarized in the current
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cases. These houses were burglarized under similar conditions to the
Defendant’s prior conviction in 08-CR-612. Furthermore, in the case at
hand, an invoice taken from the mailbox located [on] Burwood Drive was
found in the woods during the burglary investigation of [the] residence
located [on] Roscommon Drive. [Another property on] Burwood Drive was
then later burglarized and is included in this indictment. Finally, a locket
with family pictures was taken during the burglary of [the Parsons residence]
in case number 08-CR-612. That locket was recovered during the April 3,
2017 search warrant of the Defendant’s apartment in Columbus during this
current investigation.
The State argued that limited factual evidence related to Case No. 2008-CR-612 was
relevant to demonstrate the planning and preparation that Boyce engaged in and that
Boyce utilized the same scheme or plan in the current case as he did in Case No. 2008-
CR-612.
{¶ 84} The State’s Evid.R. 404(B) notice was discussed in a pretrial conference on
April 19, 2018. Boyce, representing himself, argued that Case No. 2008-CR-612 was
dissimilar from the current charges, including that no mail was discovered on the ground
in the current cases and his fingerprints were not present. The State responded that
Case No. 2008-CR-612 was a predicate act, and the facts of that prior case demonstrated
that Boyce was part of a criminal enterprise. The prosecutor clarified that the evidence
would show that Boyce had “established houses or places that he can hold this property
for long periods of time.” The prosecutor noted that Boyce had gone to prison for eight
years, and yet the 2017 search warrant at his apartment yielded evidence from the 2008
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burglaries.
{¶ 85} The prosecutor further argued that Boyce had “a very specific MO. That
MO includes scouting houses. * * * One of the methods he used was to go through
mailboxes.” The State thus asserted that the 2008-CR-612 conviction was “directly on
point to show his common plan or scheme with how he scouts and that put him in the
current case.” The prosecutor further argued that the evidence was admissible to show
that Boyce had learned from his mistakes: he more recently wore gloves and masks.
{¶ 86} The trial court orally ruled that evidence regarding Boyce’s conviction in
Case No. 2008-CR-612 was “admissible for those limited purposes under 404(B).” The
court further stated: “More significantly, evidence of this prior conviction is going to come
in anyways because it’s listed as one of the predicate acts so any incremental prejudice
is nullified in the Court’s view * * *.”
{¶ 87} The same day (April 19), the trial court filed a written entry memorializing
the issues addressed at the April 19 pretrial conference. As to the Evid.R. 404(B) issue,
the court summarized the matter as follows:
The parties argued orally with respect to the written Evidentiary Rule 404(B)
Notice the State had filed. The Court ruled that the 404(B) evidence the
State intends to present by way of a prior conviction is admissible. Said
evidence is relevant to show intent, identity, preparation, and plan, and the
prejudicial effect upon the defendant is negligible since said conviction is
listed as a predicate act under the engaging in a pattern of corrupt activity
offense and therefore it would have lawfully been presented and admitted
irrespective of the 404(B) issue.
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{¶ 88} Boyce and the State filed the stipulation regarding the basic underlying facts
of Case No. 2008-CR-612 on April 20, 2019.
{¶ 89} On the second day of trial, the State presented testimony from three
witnesses regarding Case No. 2008-CR-612. Melissa Tuttle, the Clark County Clerk of
Courts, testified that State’s Exhibits 124 and 124A were certified copies of Boyce’s
convictions for two different counts (burglary, a third-degree felony, and receiving stolen
property, a fifth-degree felony) in that case. Tuttle also testified that State’s Exhibit 124B
was a certified copy of the warrant on the indictment in Case No. 2008-CR-612, which
showed Boyce’s birthdate and Social Security number. Chris Kinsler, a former Clark
County prosecutor, identified Boyce as the defendant in Case No. 2008-CR-612, and
stated that Mr. and Mrs. Parsons were the victims in that case.
{¶ 90} Jade Parsons described her home and stated that it was broken into in late
May 2008, while she and her husband were out of town. She testified that she found her
home “ransacked” when she returned; the lines to her telephone, cable, and alarm system
had been cut. Mrs. Parsons testified that jewelry was taken from upstairs and that the
safe in her basement had been pried and drilled open with the Parsons’ tools; the safe
had contained some gold coins, cash, guns, and jewelry. Mrs. Parsons stated that a
shoebox with old letters belonging to her late father was also missing. Mrs. Parsons
testified that she went to a pawnshop in Indiana at the request of investigators and
identified three or four pieces that belonged to her. In 2017, she was invited to look at
property that was recovered as part of a current investigation; Mrs. Parsons testified that
she saw letters to her father and other relatives and a locket that belonged to her. Mrs.
Parsons’s testimony consisted of 37 pages of transcript.
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{¶ 91} During closing argument, the prosecutor summarized the course of Boyce’s
numerous offenses, the connection of Boyce’s activities to those of his accomplices who
stored and/or sold stolen items, and the course of the various law enforcement
investigations into Boyce’s and his accomplices’ activities. The prosecutor began with
the Parsons’ burglary, describing how the 2008 burglary occurred and how Boyce later
adjusted his procedures to avoid leaving the kind of evidence that led to his conviction for
that burglary, i.e., using gloves and having others sell the stolen goods. The prosecutor
also stated that “the other reason the Parsons burglary is important is it shows the
warehouse element.” The prosecutor reminded the jury that, in 2017, Jade Parsons
identified old family letters and a locket with her photo; those items had been found in
Boyce’s Columbus apartment during the April 3, 2017 execution of the search warrant.
The prosecution’s closing argument consisted of 114 pages of transcript, of which the
discussion of the Parsons burglary took six pages.
{¶ 92} After closing arguments, the trial court instructed the jury. As to prior bad
acts, the court stated, without objection from Boyce:
* * * Sometimes evidence is admissible for only a limited purpose.
In these situations, Evidentiary Rule 105 requires the Court to restrict the
evidence to its proper scope and instruct the jury accordingly.
The law and fundamental fairness prohibit you from drawing an
inference that other bad acts and/or crimes alleged to have been committed
by the defendant make it more likely that he committed the offenses for
which he is on trial.
Accordingly, evidence that the defendant committed bad acts and/or
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crimes other than those charged in the indictment is typically not admissible.
There are, however, some exceptions to this rule of law.
One exception, which applies in this case, arises when the
defendant is charged with engaging in a pattern of corrupt activity, requiring
the State to prove a pattern of bad acts and/or crimes, some of which may
be criminal convictions.
To that end, the State has presented evidence in this case that the
defendant was previously convicted of burglary and receiving stolen
property. Another exception to this rule of law arises when the defendant
takes the witness stand in his own defense giving the State the opportunity
to impeach with prior convictions.
If you find that the State has failed to prove these other bad acts
and/or crimes beyond a reasonable doubt, you’re to disregard them and not
permit them to influence your deliberations.
If you find that the State has proven them beyond a reasonable
doubt, you may consider that evidence, but only for the limited purposes of
determining whether it proves a pattern of corrupt activity and evaluating
the defendant’s credibility as a witness.
You may not consider it for purposes of drawing the aforementioned
forbidden inference.
{¶ 93} Upon review of the record, we find no error concerning the trial court’s
handling of Boyce’s conviction in Case No. 2008-CR-612.
{¶ 94} Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not
-34-
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” The Ohio Supreme Court has discussed Evid.R. 404, stating:
Evid.R. 404 codifies the common law with respect to evidence of
other acts of wrongdoing. The rule contemplates acts that may or may not
be similar to the crime at issue. If the other act is offered for some relevant
purpose other than to show character and propensity to commit crime, such
as one of the purposes in the listing, the other act may be admissible.
Another consideration permitting the admission of certain other-acts
evidence is whether the other acts “form part of the immediate background
of the alleged act which forms the foundation of the crime charged in the
indictment” and are “inextricably related” to the crime.
(Citations omitted.) State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 13.
{¶ 95} Courts employ a three-step analysis to determine whether to admit other-
acts evidence:
The first step is to consider whether the other acts evidence is relevant to
making any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence. Evid.R. 401.
The next step is to consider whether evidence of the other crimes, wrongs,
or acts is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence is
-35-
presented for a legitimate purpose, such as those stated in Evid.R. 404(B).
The third step is to consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair prejudice. See
Evid.R 403.
State v. Hare, 2018-Ohio-765, 108 N.E.3d 172, ¶ 42 (2d Dist.), quoting State v. Williams,
134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
{¶ 96} A trial court has broad discretion to admit or exclude evidence, and its
exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.
State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or
arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 97} We find no abuse of discretion here. Most significantly, the State had
alleged in the indictment that the Case No. 2008-CR-612 burglary was a predicate act for
the charge of engaging in a pattern of corrupt activity. Consistent with the indictment,
the State’s evidence at trial regarding the events underlying Case No. 2008-CR-612, i.e.,
the burglary of the Parsons’ home, served to establish a pattern of corrupt activity by
Boyce by demonstrating that Boyce’s more recent burglaries in 2016 and 2017 were an
extension of his prior conduct. The State’s evidence revealed commonalities in the
methods used to commit the Parsons’ burglary and the recent burglaries, as well as the
improvements in Boyce’s procedures after his release from prison in 2016. In addition,
the fact that items stolen from the Parsons in 2008 were in his continued possession
almost a decade later, along with other recently stolen items, provided additional evidence
that Boyce was engaged in an ongoing enterprise that stored stolen items in accomplices’
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homes and used those and other accomplices to sell certain types of stolen items.
{¶ 98} Consequently, the evidence “was an integral part of the State’s proof of the
charge of engaging in a pattern of corrupt activity, not ‘other acts’ evidence.” State v.
Rich, 2d Dist. Montgomery No. 27356, 2018-Ohio-1225, ¶ 31. See also State v. Saxton,
9th Dist. Lorain Nos. 02CA8029, 02CA8030, 2003-Ohio-3158, ¶ 28, citing State v. Frato,
9th Dist. Lorain Nos. 91CA005237, 91CA005238, 1992 WL 227955, * 4 (Sept. 16, 1992)
(“When other acts testimony is relevant to prove a pattern of corrupt activity pursuant to
R.C. 2923.32(A)(1), it is not inadmissible under Evid.R. 404(B).”). The trial court did not
abuse its discretion in permitting the State to present evidence regarding the Parsons’
burglary at trial.
{¶ 99} The trial court also appropriately addressed “prior bad act” evidence in its
jury instructions. The court informed the jury, without objection from Boyce, that
evidence of Boyce’s prior bad acts, including his prior convictions, could be considered
only in limited circumstances: to establish that Boyce was engaged in a pattern of corrupt
activity, as charged, or to impeach Boyce’s credibility as a witness. The court further
made clear that, if the jury found that the State had failed to prove these other bad acts
and/or crimes beyond a reasonable doubt, the jury was to disregard them entirely and not
allow them to influence their deliberations. The trial court’s instructions reasonably
guided the jury’s consideration of the 2008 burglary of the Parsons home.
{¶ 100} Boyce’s first and second assignments of error are overruled.
IV. Boyce’s Sentence
{¶ 101} In his fourth assignment of error, Boyce claims that his sentence is clearly
and convincingly unsupported by the record. Boyce argues:
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It is true that Mr. Boyce has past criminal convictions, and he was
convicted of numerous felonies in the instant case. But given that no
weapons were involved, the total amount of restitution ordered was just over
$3,000, and no individual was physically harmed or threatened with physical
harm, the minimum sanction necessary to punish Mr. Boyce and protect the
public is not a 70-year sentence.
{¶ 102} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 103} “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.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 104} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
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of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others, to punish the offender, and to promote the effective rehabilitation of
the offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.” Id. R.C.
2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony sentencing * * *,
commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.”
{¶ 105} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s
conduct is more serious than conduct normally constituting the offense; R.C. 2929.12(C)
sets forth four factors indicating that an offender’s conduct is less serious than conduct
normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that
trial courts are to consider regarding the offender’s likelihood of committing future crimes.
Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s military
service record, if any.
{¶ 106} In general, it is presumed that prison terms will be served concurrently.
R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 16, 23 (“judicial fact-finding is once again required to overcome the statutory
presumption in favor of concurrent sentences”). However, after determining the
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sentence for a particular crime, a sentencing judge has discretion to order an offender to
serve individual counts of a sentence consecutively to each other or to sentences
imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to impose consecutive
sentences if it finds that (1) consecutive sentencing is necessary to protect the public from
future crime or to punish the offender, (2) consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the
public, and (3) any of the following applies:
(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.
{¶ 107} The trial court did not order a presentence investigation prior to
sentencing. At sentencing, the State requested maximum consecutive sentences for
Boyce. It emphasized Boyce’s lack of remorse, that the items taken had significant
economic and sentimental value, that Boyce was the boss of the criminal enterprise; that
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the only way to protect the public was to impose maximum consecutive sentences, that
Boyce committed the McCready burglary while at halfway house, and that he was out on
bond when he committed the Koehler, Timmons, Haemmerle, and Geil burglaries. The
State argued that recidivism was likely. In response, Boyce proclaimed his innocence
and argued that the judicial system had failed. The trial court imposed maximum
consecutive sentences totaling 70 years in prison.
{¶ 108} Boyce does not claim that his individual sentences were contrary to law,
and we conclude that they are not. Each individual sentence is within the authorized
statutory range, and the trial court indicated that it had considered the statutory principles
and purposes of sentencing as well as the statutory seriousness and recidivism factors.
In addition, the trial court made the appropriate findings under R.C. 2929.14(C)(4); the
imposition of consecutive sentences also was not contrary to law. The relevant question
is whether Boyce’s aggregate 70-year sentence was clearly and convincingly
unsupported by the record.
{¶ 109} We addressed a lengthy sentence for a serial burglar in State v. Beverly.
Beverly, who was 23 years old, was convicted of engaging in a pattern of corrupt activity,
burglary (eight counts), attempted burglary (two counts), receiving stolen property (five
counts), having weapons while under disability, and fleeing and eluding. The trial court
imposed an aggregate 66.5-year sentence. On direct appeal, we held that the sentence
was an abuse of discretion, reasoning:
In outlining the reasons for the sentence it imposed, the trial court
did not mention Beverly’s prior criminal history. Instead, the trial court
noted the number of households victimized, the number of people whose
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personal property was stolen or damaged, and the loss of a sense of
security by his victims, which was compromised as a result of Beverly’s
crimes. While these considerations were proper, the trial court also sought
to justify Beverly’s lengthy sentence by noting that law enforcement officers
put in “hundreds[,] maybe even thousands[,] of hours of time and effort”
spent by law enforcement agencies in investigating and tracking down all of
the property stolen, organizing it, and trying to return said property to its
rightful owners. We conclude that the amount of police work involved
should not have formed a basis to increase Beverly’s sentence. The police
officers, detectives, and other law enforcement officials involved were
performing their respective jobs conducting the investigation, cataloguing,
and retrieving the items stolen by Beverly and Imber [Beverly’s co-
defendant].
Fortunately, none of the victims suffered any physical injury.
Although the anger, fear, and disturbances experienced by the victims may
properly be considered, there is nothing in the record to suggest that these
psychological injuries were qualitatively greater than those predictably
experienced by any victim of a burglary, or that the victims are unlikely to
overcome these effects within a reasonable period of time. We also note
that the lack of a pre-sentence investigation report in a case of this nature
makes it harder to fashion a sentence consistent with the statutory
sentencing factors and guidelines found in R.C. 2929.11 and 2929.12.
We do not seek to minimize the criminality of Beverly’s actions and
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the wrong done to his victims. Nevertheless, treating this case as if these
crimes were the most serious forms of the offenses, and treating Beverly as
if he were the most depraved of offenders, is not supported by the evidence
in the record. The imposition of the 66½-year sentence in this case
deprecates the validity of similar harsh sentences in those cases that truly
merit them. As Justice Lanzinger has written, “[i]t is a rare victim who does
not consider the crime committed by an offender to be undeserving of a
maximum penalty. * * * It will take a courageous judge not to ‘max and stack’
every sentence in multiple-count cases.” State v. Hairston, 118 Ohio St.3d
289, 2008-Ohio-2338, 888 N.E.2d 1073, at ¶ 31 (Lanzinger, J., concurring).
Finally, Beverly argues that his co-defendant, Imber, who plead
guilty, received a more lenient sentence. Specifically, Imber entered guilty
pleas to ten fourth-degree felony offenses and received an aggregate
sentence of thirteen and one-half years in prison, less than a quarter of the
sentence Beverly received. State v. Imber, 2d Dist. Clark No. 11 CA 0063,
2012-Ohio-372. Although there is no information in the record to indicate
whether Imber had a prior record, the evidence in the record established
that Imber was equally culpable with Beverly regarding the charged
offenses. On this record, a disparity of over 50 years suggests the
appearance of a trial tax, whereby one reason for Beverly's much harsher
sentence was that he exercised his right to a jury trial.
State v. Beverly, 2d Dist. Clark No. 2011-CA-64, 2013-Ohio-1365, ¶ 55-58 (“Beverly I”),
reversed on other grounds, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 11.
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{¶ 110} On remand, the trial court sentenced Beverly to an aggregate 50-year
sentence. We affirmed that sentence, initially noting that the abuse-of-discretion
standard no longer applied and that we could vacate or modify Beverly’s sentence only if
we determined, by clear and convincing evidence, that the record did not support his
sentence, including the trial court’s consecutive-sentence findings, or that his sentence
was contrary to law. State v. Beverly, 2016-Ohio-8078, 75 N.E.3d 847, ¶ 9-10 (2d Dist.)
(“Beverly II”).
{¶ 111} On review, we held that Beverly’s individual sentences were not contrary
to law, as they each fell within the sentencing range and the trial court had considered
the required statutory factors, and that the record amply supported the imposition of a
maximum sentence for each offense. We further found that the trial court had made the
necessary findings for the imposition of consecutive sentences. Significantly for this
case, we also concluded that the record did not clearly and convincing fail to support the
imposition of consecutive sentences. We stated:
* * * After compiling an extensive juvenile record and receiving a six-
year prison sentence for burglary, Beverly proceeded to engage in a
months-long crime spree that included burglarizing eight houses and
attempting to burglarize two more. At sentencing, the State represented
that someone was home on at least one of these occasions. Beverly and
his co-defendant used stolen vehicles to commit the crimes and were found
in possession of stolen property including firearms. While serving time in
prison following his convictions, Beverly’s behavior has been deplorable.
Due to the long-term nature of his criminal activity, the number and nature
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of his offenses, and his demonstrated inability or unwillingness to be
rehabilitated, the trial court reasonably concluded that consecutive
sentences were necessary to protect the public from future crime and to
punish Beverly and that consecutive sentences were not disproportionate
to the seriousness of his conduct and to the danger he poses to the public.
The record likewise supports the trial court’s finding under R.C.
2929.14(C)(4)(c) that Beverly’s history of criminal conduct demonstrates the
necessity of consecutive sentences to protect the public from future crime
by him. In light of that determination, we need not address the trial court’s
additional alternative finding under R.C. 2929.14(C)(4)(b), which was
unnecessary.
Although Beverly’s aggregate prison term is undeniably harsh — and
likely harsher than this court would have imposed — we have no basis to
conclude that the consecutive sentences the trial court imposed are clearly
and convincingly unsupported by the record, which is the applicable
standard of review. Under this “extremely deferential” standard, we simply
are not permitted to substitute our judgment for that of the trial court.
(Citation omitted.) Beverly II at ¶ 18-19.
{¶ 112} Here, the record reflects that Boyce has been involved in burglaries since
2005. Boyce was convicted in 2005 and twice in 2008, which resulted in his
imprisonment until early 2016. While in prison, Boyce presented himself as a criminal
mastermind and conspired with Burkhart to engage in burglaries together upon their
release. After his release from prison, Boyce was returned to prison to complete his
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sentence (May 6 to July 24, 2016). For the rest of 2016 and the first half of 2017, Boyce
engaged in a burglary spree, scouting homes for when the occupants would be absent
(although the Shells’ house/dog-sitter apparently was present for that burglary), entering
at night, and taking high-value items from the homes. As noted by the State, Boyce
engaged in this behavior while residing at a halfway house after his release from a prior
conviction and while on bond for the new charges out of Columbus. The trial record
further made clear that Boyce was the “boss” of the criminal enterprise, enlisting several
others to sell the stolen items at various pawn shops and jewelers.
{¶ 113} Boyce notes that restitution in this case was “just over $3,000.” This
amount represented the amounts paid by the Ahmeds and the Koehler to buy their
respective items back out of pawn.
{¶ 114} The trial record reveals, however, that the value of the property stolen by
Boyce well exceeded the restitution imposed. The 18 complainants for the 2016-2017
burglaries testified to theft of numerous pieces of gold jewelry, jewelry with gemstones,
sterling silver flatware and other silver pieces, coin collections, foreign currency, watches,
and stamps; many items were unique and family heirlooms. Many victims noted that
their “costume” jewelry was not taken and that the stolen items had high monetary values.
Nancy McGregor, for example, testified that she had several pieces valued over $10,000
that were stolen; she valued her husband’s grandmother’s ring, alone, at $20,972; Boyce
also stole $3,000 to $4,000 in cash from her. Among her stolen items, Donna Field
described a ring with a $2 gold piece, which she testified was rare and valuable; she
indicated that the total value of her stolen items was between $80,000 and $100,000.
Tamara Compton testified to the theft of $8,200 cash, along with her valuable jewelry,
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and Donna Dolbeer indicated that $2,000 in cash was stolen, along with jewelry, a coin
collection, and a camera.
{¶ 115} The jury found that the State had established each of the predicate acts
alleged for Count 25 (engaging in a pattern of corrupt activity). The jury thus found that:
 Alyshia Cook sold property in the amount of approximately $5,210.03 to Buckeye
Gold between August 14 and December 13, 2016 (predicate act 10)
 Cook sold property in the amount of $6,702.03 to Dash to Cash Pawn Shop and
Allen’s Coin between January 6 and March 30, 2017 (predicate act 11)
 Quiana Boyce sold $3,000 worth of property at Buckeye Gold on November 30,
2016 (predicate act 12)
 Shaqueeta Terrell sold approximately $4,155 of property to Buckeye Gold
between August 29 and November 16, 2016 (predicate act 13)
 Terrell sold approximately $14,388.14 of property to Allen’s Coin between
January 10 and March 22, 2017 (predicate act 14)
 Boyce took Nored to Allen’s Coin to sell approximately $3,104.06 of property on
June 19 2017 (predicate act 15)
Those sales totaled more than $36,000.
{¶ 116} Boyce denied culpability for any of the 2016 and 2017 burglaries, and he
expressed no remorse for his actions.
{¶ 117} The trial court’s aggregate 70-year sentence is severe, amounting to a life
sentence for Boyce, who was 33 years old at sentencing. However, with the record
before us, the trial court’s sentence is not clearly and convincingly unsupported by the
record. Boyce had prior convictions relating to similar offenses and had previously
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served prisons terms for that conduct. He continued to commit burglaries while he was
out on bond. Through his conduct underlying this case, Boyce demonstrated an
unwillingness to be rehabilitated and a high likelihood of recidivism. Moreover, the
offenses stemmed from the burglaries of 18 different homes between 2016 and July 2017,
performed with almost systematic precision by Boyce, and the predicate acts for engaging
in corrupt activity involved additional criminal activity. There is little doubt that Boyce
was the head of the alleged criminal enterprise.
{¶ 118} On this record, Boyce’s challenge to his aggregate 70-year sentence is
without merit under Ohio’s current sentencing jurisprudence.
{¶ 119} Although not specifically raised as an assignment of error, we conclude,
however, that the trial court’s sentence on Count 19 was clearly and convincingly
unsupported by the record.
{¶ 120} The trial court, orally and in its judgment, imposed a one-year sentence on
Count 19, which concerned one of Boyce’s co-defendants, Quiana Boyce, only. The
court ordered the sentences for felony receiving stolen property to be served
consecutively, for a total of four years. On May 29, 2018, in an effort to correct the error,
the trial court filed an amended judgment, striking the one-year sentence on Count 19
and amending the first full paragraph on page five to read, “IT IS FURTHER ORDERED
that all felony receiving stolen property offenses (Counts 2, 16, and 24) run consecutively
to one another for a total of three (3) years OSP.” (Emphasis sic.)
{¶ 121} A trial court generally lacks jurisdiction to modify its own valid final
judgment in a criminal case. See, e.g., State v. Baker, 2d Dist. Greene No. 2017-CA-55,
2018-Ohio-1865, ¶ 21; State v. Plemons, 2d Dist. Montgomery Nos. 26434, 26435, 26436
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& 26437, 2015-Ohio-2879, ¶ 21. Under Crim.R. 36, “[c]lerical mistakes in judgments,
orders, or other parts of the record, and errors in the record arising from oversight or
omission, may be corrected by the court at any time.” “ ‘Corrections are proper to make
the record reflect what the court actually decided and not what the court might or should
have decided or what the court intended to decide.’ ” (Citations omitted.) Baker at ¶ 16,
quoting State v. Burton, 12th Dist. Clermont No. CA2013-09-071, 2014-Ohio-1692, ¶ 14.
{¶ 122} In this case, the trial court’s inclusion of Count 19 in its sentence did not
constitute a “clerical error.” Nevertheless, we agree that its inclusion in Boyce’s
sentence was improper. Boyce was not charged with or found guilty of committing Count
19. Accordingly, the sentence for Count 19 will be vacated, and the matter will be
remanded for the limited purpose of the filing of an amended judgment entry. We note
that the trial court’s error as to Count 19 had no effect on Boyce’s aggregate sentence.
V. Conclusion
{¶ 123} The trial court’s sentence on Count 19 will be vacated, and the matter will
be remanded for the filing of an amended judgment entry. In all other respects, the trial
court’s judgment will be affirmed.
.............
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Craig M. Jaquith
Hon. Douglas M. Rastatter