State v. Allen , 2014 Ohio 5483 ( 2014 )

[Cite as State v. Allen, 2014-Ohio-5483.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-27
v.
THOMAS M. ALLEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2013-CR-61
Judgment Reversed and Cause Remanded
Date of Decision: December 15, 2014
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce for Appellee
Case No. 2-13-27
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Thomas A. Allen (“Allen”) brings this appeal
from the judgment of the Court of Common Pleas of Auglaize County sentencing
him to consecutive sentences. Allen claims that the trial court should have found
that the offenses were allied offenses of similar import and merge for sentencing
purposes. For the reasons set forth below, the judgment is reversed.
{¶2} On March 13, 2013, the Auglaize County Grand Jury indicted Allen
on three counts: 1) breaking and entering in violation of R.C. 2911.13(A), a
felony of the fifth degree; 2) theft in violation of R.C. 2913.02(A)(2), a
misdemeanor of the first degree; and 3) theft of a firearm in violation of R.C.
2913.02(A)(1), a felony of the third degree. Doc. 1. Pleas of not guilty were
entered on behalf of Allen by the trial court at the arraignment on March 21, 2013.
Doc. 16. At a final pre-trial on July 26, 2013, Allen entered into a written plea
agreement in which he agreed to plead guilty to count one and guilty to an
amended count three of attempted theft of a firearm, a felony of the fourth degree.
In exchange, the State agreed to dismiss count two and agreed to recommend a
sentence of twelve months in prison on count one and eleven months in prison on
count two. Doc. 37. Allen appeared before the trial court on July 26, 2013, and
changed his pleas on count one and the amended count three to guilty. Doc. 38.
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{¶3} A sentencing hearing was held on October 4, 2013. Doc. 53. At the
hearing, Allen moved to have the offenses merged as allied offenses of similar
import. Doc. 74. The trial court considered the arguments of both the defense
counsel and the prosecutor, and then determined that they were not allied offenses
subject to merger. Id. The trial court then overruled the motion. Id. The State
then recommended a sentence of twelve months for the breaking and entering, and
eleven months for the attempted theft of a firearm to be served consecutively, as
set forth in the plea agreement. Id. The trial court agreed with the
recommendation and ordered an aggregate sentence of twenty-three months in
prison, which was to be served consecutive to the prior sentences in Mercer
County. Doc. 53. Allen appeals from this judgment and raises the following
assignment of error.
The trial court committed error to the substantial prejudice of
[Allen] in entering convictions and imposing consecutive
sentences for Count One – Breaking and Entering (12 months)
and Attempted Theft of Firearm (11 months) when, pursuant to
[R.C. 2941.25], said offenses are allied offenses of similar import
thereby requiring imposition of sentence on only one of the
counts due to merger.
{¶4} The sole issue raised on appeal is whether the two offenses should
have merged under the holding of State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061. In Johnson, the defendant was convicted of felony
murder and child endangering due to the death of a child in her custody during
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daycare. The Ohio Supreme Court reviewed the situation and set forth a new test
for determining whether offenses were allied offenses of similar import.
Under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same
conduct. Thus, the court need not perform any hypothetical or
abstract comparison of the offenses at issue in order to conclude
that the offenses are subject to merger.
In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is
possible to commit one offense and commit the other with the
same conduct, not whether it is possible to commit one without
committing the other. Blankenship, 38 Ohio St.3d at 119, 526
N.E.2d 815 (Whiteside, J., concurring) (“It is not necessary that
both crimes are always committed by the same conduct but,
rather, it is sufficient if both offenses can be committed by the
same conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both
offenses.” [Emphasis sic]). If the offenses correspond to such a
degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other,
then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were
committed by the same conduct, i.e., “a single act, committed
with a single state of mind.” * * *
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, of if the
offenses are committed separately, or if the defendant has
separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.
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Id. at ¶ 47-51. Thus, the first step this court must take is to determine if breaking
and entering and attempted theft of a firearm can both be committed by the same
act.
{¶5} To commit the offense of breaking and entering as charged in the
indictment in this case, the defendant must commit the following conduct.
No person by force, stealth, or deception, shall trespass in an
unoccupied structure, with purpose to commit therein any theft
offense, as defined in section 2913.01 of the Revised Code, or any
felony.
R.C. 2911.13(A). To commit the offense of theft of a firearm, the defendant must
commit the following conduct.
(A) No person, with purpose to deprive the owner of property
or services, shall knowingly obtain or exert control over either
the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to
give consent[.]
R.C. 2913.02. One attempts to commit a crime, by engaging “in conduct that, if
successful, would constitute or result in the offense.” R.C. 2923.02. The Supreme
Court of Ohio has elaborated on this definition. “A ‘criminal attempt’ is when one
purposely does or omits to do anything which is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commission of
the crime.” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶95, 781 N.E.2d
980 (quoting State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976)).
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{¶6} There is no question that the theft offense is interrelated to the
breaking and entering offense, as the intent to commit a theft or another felony are
a required element of breaking and entering. Thus, the same conduct could result
in both offenses occurring, i.e. an attempt to steal a firearm could necessitate that
the defendant could trespass in the unoccupied structure with the purpose to steal a
firearm. In other words, trespass in an unoccupied structure with the purpose to
steal a firearm is a substantial affirmative act towards commission of the theft of
the firearm, and constitutes an attempt to steal the firearm. This court must now
consider the second part of the test pursuant to Johnson.
{¶7} The second part of the Johnson test is whether the offenses in this case
were committed as part of the same conduct without a separate animus. The issue
of merger is limited to the offenses of which the defendant is convicted and does
not include collateral offenses which may also have been committed.
Merger is a sentencing question, not an additional burden of
proof shouldered by the state at trial. We have consistently
recognized that “[t]he defendant bears the burden of
establishing his entitlement to the protection, provided by R.C.
2941.25, against multiple punishments for a single criminal act.”
State v. Washington, 137 Ohio St.3d 247, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18
(quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987)). Where a
conviction arises from a guilty plea, the merger question can be litigated during
the sentencing hearing, where a court is allowed to consider any information
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presented by either the defense or the State. Id. at ¶ 19-20. At a sentencing
hearing where the issue of allied offenses is being considered, both the defendant
and the State are allowed to present new theories of the case when arguing
whether offenses should be merged, so long as the new theories are not
inconsistent with the theories argued at trial. Id. at ¶ 21-22.
{¶8} A review of the record in this case shows the offenses pled to herein
were not committed with separate animus. At the change of plea hearing, the State
presented the following information.
* * *Myron Bowers, owner and operator of Preferred Builders,
located in the City of St. Marys, Auglaize County, Ohio,
contacted the Police Department advising that he had discovered
a theft from his office and from his business. He advised that he
had gone into work, had discovered that the door was ajar and
that upon entering the business he noted that certain items were
missing from the business. An investigation ensued.
During the investigation, St. Marys Police Department received
information from the Celina Police Department that they were
investigating a series of burglaries that had taken place in the
Mercer County, City of Celina. They had developed
information there that an individual had information about the
Preferred Builders breaking and entering and theft. In speaking
with that individual, advised that they were aware that Mr.
Allen, the Defendant in this case, who had been an employee of
Preferred Builders, had come out of the building, they had met
him there to pick him up, he come out of the building and at that
time was carrying a red tool box, a yellow bag, - I believe it was a
yellow bag, containing tools. --, and a box containing a
Weatherby 12 gauge shot gun. Mr. Bowers had indicated that
upon his review of items, there were a number of tools that were
missing from the business; that Mr. Allen, was in fact an
employee at the business; that he had been working there;
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however, at the time that Mr. Allen had entered the business
would have been a time when he was not allowed into the
business and that he entered the business without permission
from Mr. Bowers or anyone that would have the authority to
grant Mr. Allen permission to enter the business, specifically, to
take tools and to take this 12 gauge shotgun.
Again, Officers spoke with two (2) individuals, they each
advising that Mr. Allen was, in fact, the person that came from
the building carrying those items, the tools and the shotgun, the
box containing the shotgun.
***
The Court: Mr. Allen, you’ve heard what I’ve been told, is that
truthful?
[Allen]: Yes and no, Your Honor.
The Court: What part of it was not?
[Allen]: Who sold it.
Change of Plea Tr. 13-15. Allen essentially admitted that he entered the premises
without permission and that he did so with the intent to steal the firearm. Tr. 11.
In response to Allen’s merger argument, the State conceded that Allen had
entered the property with the purpose of stealing the firearm.
The theft under the underlying breaking & entering was the, -
and as Mr. Siesel has just indicated the purpose for doing this
was to steal the gun. But, in the process of stealing the gun
apparently it was decided that other tools should be stolen and
tools were stolen at that point.
Sentencing Tr. 11. Although there would be a separate animus for the actual theft
of the firearm and the breaking and entering, i.e. the defendant could have entered
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the building with the intent to commit a felony and then change his mind leaving
the actual theft uncompleted, in this case there is no separate animus between the
attempt to steal the firearm, the offense of which Allen was convicted, and that of
breaking and entering. By trespassing in the building Allen took a substantial step
in the theft of the firearm, which completed the attempted theft of a firearm. This
same step completed the offense of breaking and entering because he illegally
entered the building with the intent of committing a felony. Thus, the one act
completed both crimes. Based upon the individual facts of this case, the offenses
of attempted theft of a firearm and breaking and entering were committed with one
animus and were completed by one act. Therefore, under the holding in Johnson,
the offenses were allied offenses of similar import and should have merged.
{¶9} On appeal, the State now argues that “the animus for stealing the guns
[sic] was separate and distinct from the Breaking and Entering as the underlying
Theft for the Breaking and Entering is the Theft of tools.” Appellee’s Br., 3-4.
Further the State maintains that this was its position at the trial court, though
admitted it was stated “inartfully”. Id. at 3. The record does not reflect this
position. The State clearly argued in the trial court that the intent behind the
breaking and entering was in fact the intent to steal the firearm. The State may not
change its theory of a case on appeal if the new theory is contrary to what was
argued at trial. State v. Sutphin, 8th Dist. Cuyahoga No. 96015, 2011-Ohio-5157.
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See also State v. Carner, 8th Dist. Cuyahoga No. 96766, 2012-Ohio-1190, ¶ 44.
The State’s theory argued on appeal in this case is not consistent with the
argument made before the trial court. This conviction was the result of a guilty
plea, so the only argument the State made below was at the sentencing hearing
where it conceded that Allen committed the breaking and entering with the intent
to steal the shotgun. Since this is the sole argument made before the trial court,
the State cannot now properly argue on appeal that the theft offense intended to be
committed was the theft of the tools.
{¶10} Additionally, as discussed above, the record supports the State’s
concession that Allen possessed a single animus. As stated in the presentence
investigation report, the shotgun had “been left lying on a drafting table. [It had
been] there for about two weeks as it was to be auctioned off at a Ducks Unlimited
Banquet.” Doc. 74, Ex. A, 3. Allen was also a “former employee of Preferred
Builders and would have had knowledge of the stolen shotgun being at the
business.” Id. This evidence supports the argument that Allen intended to steal
the shotgun when he committed the offense of breaking and entering, as he knew
the shotgun was there.
{¶11} On the issue of the intent for the breaking and entering, the trial court
was silent. In fact, the trial court believed the finding to be irrelevant, instead
stating as follows.
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You can commit a theft offense without doing any Breaking and
Entering. He could have stolen the gun while he was lawfully
there, while he was working. You could commit those two (2)
offenses, in fact, in this particular instance, under the facts of
this case, whatever his purpose was in going in in terms of
whether he was there to steal the tools and saw the shotgun or
whether he was there to steal the shotgun and saw the tools and
took them. In any event, he could commit the Breaking and
Entering without having actually committed the theft. So his
purpose was to commit a theft, but that didn’t mean he had to
do it. He could have abandoned that at any time, instead he
committed the separate offense of theft. I believe under the
Johnson [sic] analysis, therefore, they don’t merge.
Tr. 12-13. The trial court took the position that because Allen completed the theft,
it was a separate and distinct act from the breaking and entering offense. This is a
correct statement of law as the conduct required to break and enter will never
result in a completed theft. State v. Brewer, 3d Dist. Wyandot No. 16-11-13,
2012-Ohio-3899, ¶ 45. However, Allen was not convicted of the theft, but rather
only of attempted theft. Whether Allen completed the theft is irrelevant to the
analysis for merger as that was not the crime for which he was convicted.
{¶12} The record supports the position that Allen’s intent in breaking and
entering was to steal the firearm. The record contains no evidence that Allen took
any actions that would constitute a substantial step in the commission of the theft
prior to the breaking and entering. Thus, Allen had not completed the crime of
attempted theft before committing the breaking and entering. In this case, the
substantial step in committing the theft occurred when Allen committed the
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offense of breaking and entering. The moment that Allen completed the crime of
breaking and entering, he had, at that same moment, completed the crime of
attempted theft of a firearm. The fact that Allen then took additional actions and
actually completed the theft is immaterial in this case because the crimes for
which Allen was convicted were already completed. Therefore, in this case, under
these facts, the same acts were committed at the same time with the same animus.
For this reason, the assignment of error is sustained.
{¶13} Having found error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Auglaize County is reversed and the
matter is remanded for further proceedings in accord with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, J., concurs.
/jlr
SHAW, J., dissenting.
{¶14} The conclusion of the majority that the breaking and entering
constitutes an attempted theft, because the trespass into the building was necessary
to complete the theft of the items inside the building, is wrong as a matter of law.
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{¶15} Under R.C. 2923.02(A), an attempted theft requires “* * * conduct
that, if successful, would constitute or result in * * * ” the commission of a theft
offense. Commission of a theft offense as defined in R.C. 2913.02 (A)(1) requires
more than the mere purpose to permanently deprive the owner of property, it also
requires obtaining or exerting control over that property. There is nothing about
entering a building with the mere purpose to commit a theft offense, however
successfully completed by the defendant, that at that point would yet “constitute or
result in obtaining or exerting control over” the firearm and tools inside the
building.
{¶16} The conduct necessary to trespass into a building, if successful,
results in entering the building and nothing more, certainly not the theft of the
items inside the building. Even assuming it could be construed as “conduct” at all,
the formation of the purpose to commit a theft offense, if successful, results in
successfully forming the intent to steal, not the successful theft of the items.
{¶17} Even if it were to be argued that gaining access to the inside of the
building via the trespass resulted in constructively obtaining or exerting control
over the firearms and tools inside the building, it would not result in a successful
completion of the theft offense under R.C. 2913.02 and R.C. 2923.02 because
merely obtaining constructive control over the items while remaining inside the
building, without some further attempt to remove them from the building and/or at
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least place them into the personal possession of someone besides the owner, would
not constitute conduct which if successful would demonstrate the purpose to
“permanently” deprive the owner of the property as required to constitute a theft
offense under R.C. 2913.02.
{¶18} In sum, separate and additional animus, coupled with some
additional conduct directed toward personally and permanently obtaining or
exerting control over the firearm and tools within the structure, beyond the mere
trespass into the building and a mere purpose to steal something, is inherently
necessary in order to successfully complete a theft offense under R.C. 2913.02.
{¶19} This is exactly what happened in this case, as the defendant obtained
personal control of the tools and firearm inside the building and was caught
leaving the building with the items—only at this point completely demonstrating
in both instances, conduct which if successful would constitute or result in
knowingly obtaining or exerting control over the items with the purpose to
permanently deprive the owner of them without the consent of the owner—an
attempted theft. This cannot be established from the breaking and entering alone.
As a result, the breaking and entering alone cannot merge with the attempted theft
of the firearms and tools in this case.
{¶20} The majority is also wrong on its factual analysis of this case. The
breaking and entering charge in this case does not require and does not specify the
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purpose to steal any particular item and each item stolen clearly carries a separate
animus for each theft offense. This is another reason the breaking and entering
cannot be shown in this instance to have the same animus as the theft of the
firearm and is another reason that the trial court’s determination of separate
animus was supported by sufficient evidence.
{¶21} Additionally, contrary to the emphasis of the majority, the
prosecutor’s stated “theory” of the case, as expressed in the plea narrative in the
trial court or in its argument to this court for that matter, is irrelevant to our
determination of the matter before us. What is relevant is whether the indictment,
the record, and in this case the factual narrative of the plea, supports the charges
the defendant pled guilty to and supports the convictions and sentence of the trial
court.
{¶22} The defendant in this case was caught coming out of the building
with the firearm and toolbox in his possession, and acknowledged the same at the
plea hearing, all of which is probably about as good as it gets for a record in
support of a conviction and sentence for attempted theft. Moreover, the defendant
also acknowledged the accuracy of the state’s plea narrative that he had stolen
both items. So state’s theories notwithstanding, based on the record, the trial
judge was again justified in ascribing an independent animus to each of the
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defendant’s theft offenses, separate and apart from the breaking and entering and
from each other.
{¶23} In fact, there is no conclusive indication in the record outside the
prosecutor’s personal opinion that the defendant knew the firearm was in the
building or that it was exclusively the firearm that motivated the breaking and
entry. It thus appears that the trial court could have reasonably concluded that the
intent to steal at least one of the items was formed and put into action only after
entry into the building.
{¶24} For the foregoing reasons, I respectfully dissent. The judgment of the
trial court follows the criminal statutes governing this case, was supported by the
record and should be affirmed.
/jlr
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