State v. Queen , 2021 Ohio 1131 ( 2021 )

[Cite as State v. Queen, 2021-Ohio-1131.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-20-13
v.
ANTHONY MICHAEL QUEEN,
OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20202019
Judgment Affirmed
Date of Decision: April 5, 2021
APPEARANCES:
Emily P. Beckley for Appellant
Jason M. Miller for Appellee
Case No. 6-20-13
SHAW, J.
{¶1} Defendant-appellant, Anthony Michael Queen (“Queen”), brings this
appeal from the August 20, 2020 judgment of the Hardin County Common Pleas
Court sentencing him to an aggregate prison term of thirteen years and three months
after Queen was convicted in a jury trial of burglary with a firearm specification,
breaking and entering, having weapons while under disability, and tampering with
evidence. On appeal, Queen argues that there was insufficient evidence presented
to convict him, and that his burglary and breaking and entering convictions should
have merged for purposes of sentencing.
Background
{¶2} On February 12, 2020, Queen was indicted for burglary in violation of
R.C. 2911.12(A)(2), a felony of the second degree, with a firearm specification
pursuant to R.C. 2941.141(A) (Count 1), safecracking in violation of R.C.
2911.31(A), a felony of the fourth degree (Count 2), grand theft in violation of R.C.
2913.02(A)(1), a felony of the fourth degree (Count 3), ten counts of grand theft in
violation of R.C. 2913.02(A)(1) (Counts 4-13), all felonies of the third degree due
to the items allegedly being stolen being firearms, breaking and entering in violation
of R.C. 2911.13(A), a felony of the fifth degree (Count 14), having weapons while
under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree
(Count 15), and two counts of tampering with evidence in violation of R.C.
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2921.12(A)(1), both felonies of the third degree (Counts 16 and 17). It was alleged
that on November 27, 2018, Queen and another individual went to the residence of
Robert W. while Robert was out and broke into Robert’s barn. Queen then stole an
air compressor, a chainsaw, tires and rims, and a zero-turn lawnmower from the
barn. In addition, Queen and the other individual allegedly entered Robert’s
residence and removed a gun safe that contained, inter alia, ten firearms. At the
time of the incident, Queen was under a weapons disability due to multiple prior
burglary convictions, thus he was also charged with having weapons while under
disability. Finally, the two tampering with evidence charges were related to Queen
allegedly disposing of the gun safe in a pond and Queen allegedly destroying his
cell phone to hinder the law enforcement investigation.
{¶3} Queen proceeded to a jury trial, which was held July 8-10, 2020. At the
conclusion of the State’s case-in-chief, the State dismissed the tampering with
evidence charge in Count 16 related to the gun safe. The State also amended the
grand theft charge in Count 3 related to the total value of property taken from the
barn to a fifth degree felony due to the evidence presented regarding values of the
stolen items. Ultimately the jury found Queen guilty of burglary with the firearm
specification, guilty of grand theft related to the property taken from the barn, guilty
of five counts of grand theft related to Queen stealing firearms, guilty of breaking
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and entering, and guilty of tampering with evidence. Queen was acquitted of
safecracking and he was also acquitted of five counts of grand theft of firearms.
{¶4} When the matter proceeded to sentencing, the parties provided
arguments related to potential merger of various offenses. The trial court
determined that the grand theft counts related to firearms taken from the gun safe in
the residence all merged with the burglary charge. The State elected to proceed to
sentencing on the burglary with the firearm specification. The trial court also found
that the grand theft of property from the barn merged with the breaking and entering
of the barn. The State elected to proceed to sentencing on the breaking and entering.
The weapons under disability charge and the tampering with evidence charged were
not merged with any charges.
{¶5} The trial court then ordered Queen to serve seven years in prison on the
burglary charge, with a consecutive one-year mandatory prison term for the attached
firearm specification. Queen was ordered to serve nine months in prison on the
breaking and entering charge, thirty months in prison on the weapons under
disability charge, and twenty-four months in prison on the tampering with evidence
charge. All of the prison terms were ordered to be served consecutive to each other
for an aggregate term of thirteen years and three months. A judgment entry
memorializing Queen’s sentence was filed August 20, 2020. It is from this
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judgment that Queen appeals, asserting the following assignments of error for our
review.
Assignment of Error No. 1
Appellant’s conviction was not supported by sufficient evidence.
Assignment of Error No. 2
The trial court erred in sentencing appellant for allied offenses of
similar import.
First Assignment of Error
{¶6} In his first assignment of error, Queen argues that there was insufficient
evidence presented to convict him of the various charges. However, although
Queen styles his first assignment of error as contesting only sufficiency of the
evidence in this case, the final line of his argument in his brief asserts that his
convictions were also against the manifest weight of the evidence. While these are
distinctly different topics with different standards of review, we will address both
in the interests of justice.
Standard of Review
{¶7} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus; State v. Pountney, 152 Ohio St.3d
474, 2018-Ohio-22, ¶ 19 (an appellate court’s function in a sufficiency review is not
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to determine if the evidence should be believed). Accordingly, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id., following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979); State v. Ford, --- Ohio St.3d ---, 2019-Ohio-4539,
¶ 317. “In deciding if the evidence was sufficient, we neither resolve evidentiary
conflicts nor assess the credibility of witnesses, as both are functions reserved for
the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-
6267, ¶ 25 (1st Dist.); see also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-
Ohio-2380, ¶ 19, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997)
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
{¶8} By contrast, in reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-
52. In doing so, this Court must review the entire record, weigh the evidence and
all of the reasonable inferences, consider the credibility of witnesses and determine
whether in resolving conflicts in the evidence, the factfinder “clearly lost its way
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and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Id.{¶9} Nevertheless, a reviewing court must allow the trier-of-fact appropriate
discretion on matters relating to the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Controlling Authority
{¶10} In this case Queen was convicted of burglary in violation of R.C.
2911.12(A)(2), which reads
(A) No person, by force, stealth, or deception, shall do any of the
following:
***
(2) Trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure that is a
permanent or temporary habitation of any person when any
person other than an accomplice of the offender is present or
likely to be present, with purpose to commit in the habitation any
criminal offense[.]1
1
The burglary carried an attached firearm specification pursuant to R.C. 2941.141, which states, in pertinent
part, that “the offender had a firearm on or about the offender’s person or under the offender’s control while
committing the offense.”
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{¶11} Queen was also convicted of breaking and entering in violation of R.C.
2911.13(A), which reads, “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.”
{¶12} In addition, Queen was convicted of having weapons while under
disability in violation of R.C. 2923.13(A)(2), which reads,
(A) Unless relieved from disability under operation of law or
legal process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if any of the following
apply:
***
(2) The person is under indictment for or has been convicted of
any felony offense of violence or has been adjudicated a
delinquent child for the commission of an offense that, if
committed by an adult, would have been a felony offense of
violence.
{¶13} Finally, Queen was convicted of tampering with evidence in violation
of R.C. 2921.12(A)(1), which reads,
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence
in such proceeding or investigation[.]
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Evidence Presented at Trial
{¶14} The victim in this matter, Robert, lived with his girlfriend, Jessica D.,
and her children for over six months in Robert’s Hardin County residence prior to
November 20, 2018. Robert’s property contained a sizable barn, large enough to
hold three combines.
{¶15} In the weeks prior to November 20, 2018, Jessica testified that her
relationship with Robert was deteriorating. She decided to move out and end the
relationship. For the move, she enlisted help from family and friends to get her
items out of Robert’s residence while Robert was at work. Jessica asked her sister
and her mother for help with the move, along with a man named Terry.2 In addition,
Jessica asked a friend named McKenzie for help. At the time, McKenzie was dating
a man named Adam, who was Queen’s brother. Testimony indicated that Jessica
was related to Adam and Queen by marriage.
{¶16} When Jessica went to pick up McKenzie where McKenzie was
staying, Adam and Queen came out of the residence and stated that they would help
with the move. Jessica claimed that she did not want Adam’s or Queen’s help, but
they brought a dark-colored Ford F-150 truck and came anyway. The group spent
the day at Robert’s property while he was gone loading up Jessica’s things into
multiple vehicles.
2
Terry would later become Jessica’s fiancé.
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{¶17} At one point, Jessica had to go into the barn and Queen followed her
inside after Jessica unlocked the combination padlock. Queen and Adam were also
inside Robert’s residence despite Jessica’s reservations as to them being present at
all, let alone inside the residence. However, Jessica testified that she specifically
told Queen and Adam what to take from the residence, and that she told them not to
touch or take any of Robert’s things.
{¶18} By the evening of November 20, 2018, the move was completed. The
individuals involved with the move left, taking Jessica’s property. Robert returned
to the residence and learned that Jessica had moved out. There is no indication that
at this time that any of Robert’s things were missing; rather, Jessica had only taken
her property.
{¶19} A week later, on November 27, 2018, Robert returned home in the
evening and saw that his log splitter was outside of his barn, which he testified was
unusual. He then went to his barn and saw that the combination padlock was gone
completely. Upon entering the barn, he determined that he was missing a blue zero-
turn lawnmower, an air compressor, a chainsaw, and a set of rims and tires he had
recently purchased.
{¶20} Robert then went to his house and noticed that the door had been
visibly broken into. When he went inside he discovered that his gun safe, which
had been bolted to the floor, was missing. Robert called the police and officers
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responded to his residence. Robert detailed the contents of his gun safe, which
included approximately ten firearms in addition to multiple “bb” guns.
{¶21} While officers were at the scene, they observed the missing lock on
the barn, signs of forced entry to the residence, and drag marks inside the residence
where the gun safe had been pulled from the location it was bolted into the floor.
Robert called Jessica and asked who had been involved with her move, though he
told police that he did not think Jessica would have taken his things after she moved
out. Jessica relayed the information regarding who helped her move and she later
gave officers permission to search her phone.
{¶22} In the hours prior to Robert returning home on November 27, 2018, a
group of hunters were returning for the day to a residence up the road from Robert’s
property. One of the hunters, Erick R., was in the passenger seat of a vehicle and
he noticed that a couple of people with a truck and a trailer were loading up some
items on Robert’s property, including a lawnmower. Erick testified that at the time
he “thought nothing of it.” (Tr. at 172).
{¶23} Erick testified that a short time later, as he was leaving his friend’s
residence, he was preparing to turn onto the road from his friend’s driveway when
he saw the pickup truck that had been at Robert’s residence again. He testified as
follows.
There’s a pickup. It was a Ford, and there was two guys that had
glasses and tattoos on. There’s a lawnmower hanging off the
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back, the tailgate of the trailer was dragging the road, and the
wheels of the lawnmower were on the road. It was a zero turn.
They were on the road just wobbling all over. And they were
headed west.
(Tr. at 175). Erick further testified that “[s]parks were flying” due to the tailgate
dragging on the pavement. (Id. at 176).
{¶24} Erick specified that the truck was a dark-colored Ford F-150 with a
chrome grill around the front.3 He also noticed an air compressor “on the front of
it.” (Tr. at 178). Erick called his friend and told his friend about what he saw, and
this information eventually got relayed to Robert, and finally law enforcement on
the evening of the burglary. Law enforcement officers were able to locate tracks
where the tailgate from the truck was dragging in the road but they eventually could
not follow the tracks further due to Amish buggy markings on the pavement.
{¶25} Linda Queen, fka Hoskins, Queen’s wife at the time of trial, received
a text message from Queen on the night in question with a picture of a blue zero-
turn mower. Linda denied remembering that Queen had sent her a picture message
of the mower; however, the photograph was discovered through forensic analysis of
her phone.
{¶26} Later in the evening of November 27, 2018, Linda recalled Queen
returning home with his brother Adam in the Ford F-150 truck. The truck was
3
In his statement to police Erick further clarified that it was “an early 2000 model F-150 single cab, two-
wheel drive dark-colored truck I believe that had running boards with trailer was like six by seven[.]” (Tr.
at 181).
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registered to Linda’s mother, but Linda paid for it and she allowed Queen to drive
it whenever he wanted. It was dark outside when Queen and Adam arrived at the
residence and they had the blue riding lawnmower with them, as well as an air
compressor, and a chainsaw. Queen told Linda that he obtained the lawnmower
from Jessica.
{¶27} Officers determined that Queen was a person of interest related to the
burglary at Robert’s residence after learning Queen was involved with helping
Jessica move out of Robert’s residence the week prior and after learning that he was
driving a dark-colored Ford F-150 pickup, which matched the description that Erick
observed leaving Robert’s residence on the night in question.
{¶28} Officers located an address for Queen in Bellefontaine, Ohio, then
drove past and saw a black Ford truck with a trailer matching the description that
Erick had provided. Officers were also able to observe a “black roll bar sticking out
of a blue tarp behind the house matching the color of the roll bar from the Dixon
mower that had been stolen” from Robert. (State’s Ex. 56). Agents from the Adult
Parole Authority who were monitoring Queen also went to Queen’s residence and
located a red, stand-up air compressor and the Dixon zero-turn mower.
Subsequently a search warrant was obtained for the residence where Queen was
staying.
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{¶29} On December 4, 2018, officers served the search warrant and searched
the residence where Queen was staying with Linda. Officers located numerous
pieces of property belonging to Robert, including the aforementioned mower and
the air compressor. A firearm was also located near the bed where Queen and Linda
slept. Queen was not home at the time the residence was searched; however, he was
observed driving past the residence as the search was underway. Linda sent Queen
text messages to “run” approximately four times. (Tr. at 468).
{¶30} Queen was located several days later in Kenton, staying in the
residence of a friend. Officers were permitted into the residence and when they
went upstairs to apprehend Queen, he had broken his cell phone. According to
Queen’s friend, Queen had just been using the cell phone minutes before.
{¶31} Officers found the black F-150 parked outside the residence of
Queen’s friend, where Queen was staying. The truck had the tires and rims taken
from Robert’s residence in the back. In the truck cab there was a handwritten list
of guns, which matched the guns that had been taken from Robert’s safe.
{¶32} Once he was apprehended, Queen gave a videotaped interview with
police. In the interview he acknowledged taking items from Robert’s barn;
however, he claimed that he had permission from Jessica to take those things
because they were Jessica’s property. He stated that he had helped Jessica move
out of Robert’s residence and that they had made two or three trips out to the
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residence on different days, contrary to Jessica’s testimony and the other witnesses
who assisted with the move. Nevertheless, Queen claimed that Jessica actually
opened the padlock to the barn for him so he could get inside and get her things.
However, Queen stated that he never went inside Robert’s home.
{¶33} As to why he did not stop when officers were searching his residence
with the search warrant on December 4, 2018, Queen claimed that he did not have
a license and knew that he was in violation of his parole by driving without a license
so he was scared. Finally, Queen claimed that Jessica had probably concocted the
story that he had committed a burglary because she often stole things from her exes.
{¶34} Through the investigation, officers were able to discover that Queen
was corresponding via text with a man named Joshua. On December 4, 2018, Queen
messaged Joshua and stated that he had a “60-inch zero turn and about five rifles to
get rid of. A hundred apiece. And I’ll take the mower – 800 for the mower. It only
has 600 hours.” (Tr. at 554); (State’s Ex. 200). No transactions ever occurred
between Queen and Joshua.
{¶35} Meanwhile, officers located the gun safe by using cell tower analysis
related to Adam Queen’s phone. The safe had been broken into and left in a pond.
Further, officers obtained information that Adam Queen had traded several firearms
for an el camino. Adam initially was offering to trade a zero-turn mower for the el
camino, but claimed his brother had kept the mower, so he offered firearms instead.
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Most of the firearms exchanged in the transaction were recovered and found to be
those that were taken from Robert’s gun safe. Some were test-fired and found to be
operable.
{¶36} Police investigated the other individuals involved with Jessica’s move
from Robert’s residence, including Jessica herself. In doing so, the State obtained
voluminous phone records from numerous witnesses. Officers also used tracking
data from the cell phones to narrow the list of suspects. After looking into the
potential suspects, they determined that the others involved with the November 20,
2018 move had alibis or were not involved in the November 27, 2018, theft along
with Queen (with the possible exception of Adam).
{¶37} Finally, stipulations were entered into the record regarding Queen’s
prior convictions. He had been previously convicted of three counts of burglary in
Logan County, all felonies of the third degree, and two counts of burglary in
Richland County, one being a felony of the third degree, and one being a felony of
the second degree.
{¶38} Ultimately the State introduced well over one hundred exhibits into
evidence, including various photographs of the scene at Robert’s residence,
photographs of the F-150, and photographs of the property located where Queen
was staying. In addition, cell phone records and conversations were introduced into
evidence, alongside exhibits related to search warrants and test-firing multiple
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weapons. Although Queen’s attorney cross-examined the State’s witnesses, he did
not present any evidence.
{¶39} Queen was convicted and sentenced for burglary of the residence,
breaking and entering of the barn, having weapons while under disability for
handling firearms under disability, and tampering with evidence for destroying his
cell phone as officers were approaching him.
Analysis
{¶40} On appeal, Queen argues that the State could not even prove that he
was on Robert’s property on the date in question, let alone that he had entered into
the buildings or had actually taken any of Robert’s property. He also contends that
the evidence established that the firearms from the safe were in his brother Adam’s
possession, not his, and that it was Adam’s phone that was used to locate the gun
safe in the pond. Further, he contends that there was some testimony that his phone
had been run over by a vehicle, not broken just before he was apprehended by the
police. Altogether, Queen argues that his convictions were not supported by
sufficient evidence and/or were against the manifest weight of the evidence.
{¶41} With regard to the burglary charge, there was evidence presented of
forced entry into Robert’s residence and evidence presented that established a gun
safe had been removed. The gun safe contained as many as ten firearms, which
Robert detailed. A handwritten list of firearms corresponding to those in Robert’s
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gun safe was contained on the back of a receipt in the black F-150 truck Queen was
driving. Text messages were exchanged between Queen and a man named Joshua
wherein Queen was offering to sell a zero-turn mower and numerous firearms.
Further, the truck that Queen was driving was observed by a disinterested witness
at Robert’s residence and later leaving Robert’s residence with the mower on the
back of a trailer. Additionally, Queen had been to Robert’s residence only a week
prior to help Jessica move. Witnesses saw him inside the residence and the barn at
that time and he could have seen what items remained on Robert’s property.
{¶42} Moreover, Queen also destroyed his cell phone as police were
approaching him. This could indicate consciousness of guilt, which the jury was
instructed on. See State v. Crosby, 8th Dist. Cuyahoga No. 106504, 2018-Ohio-
3793, ¶ 14. Furthermore, Queen’s then-girlfriend Linda received a picture on the
night in question of the zero-turn mower, and she saw Queen return with various
items of personal property.
{¶43} Given the record as a whole, there was a significant amount of
circumstantial evidence linking Queen to the burglary in this matter. While Queen
argues that there was no direct evidence establishing that he entered the residence
to take the gun safe, the law does not consider circumstantial evidence to be less
probative than direct evidence. State v. Jefferson, 3d Dist. Allen No. 1-20-01, 2021-
Ohio-281, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of
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the syllabus (“Circumstantial evidence and direct evidence inherently possess the
same probative value and therefore should be subjected to the same standard of
proof.”). Accordingly, we cannot find that there was insufficient evidence presented
to convict Queen of burglary, or that the conviction was against the manifest weight
of the evidence when taking into account the jury’s ability to make credibility
determinations.
{¶44} As to the breaking and entering conviction related to the barn, Robert
testified that there was a combination padlock on the barn that had been removed
and numerous items had been taken from inside. Queen actually admitted in his
police interview that he had taken items from the barn; however, he claimed he had
permission. Robert and Jessica both denied that Queen ever had permission to take
any items from the barn that were Robert’s. Furthermore, the mower, air
compressor, and chainsaw were found at the residence where Queen was staying,
and the rims and tires from the barn were found in the back of the truck Queen was
driving. Jessica testified at trial that Robert purchased those rims and tires and that
she did not even have a vehicle that could use those rims and tires, further
establishing that she never could have given proper permission for Queen to take
them even if his story was to be believed. Based on all of the evidence presented,
we cannot find that there was insufficient evidence to convict Queen of breaking
and entering, or that the conviction was against the manifest weight of the evidence.
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{¶45} As to the weapons under disability charge, it was stipulated that Queen
had prior convictions that would place him under a firearm disability. There was
evidence presented that Queen had access to a firearm at the residence where he was
staying, and there was circumstantial evidence presented that he took firearms from
Robert’s home and that he tried to sell them. For all of these reasons, we cannot
find that there was insufficient evidence presented to support his conviction for
having weapons while under disability, or that the conviction was against the
manifest weight of the evidence.
{¶46} Finally, as to the tampering with evidence charge, there was testimony
and evidence presented that Queen broke his cell phone to impair its value for
investigative purposes just as officers were closing in on him. Cases have held that
the destruction of a cell phone can support a conviction for tampering with evidence,
and we can find no different here as it was a determination for the jury in this matter.
State v. Crowe, 3d Dist. Seneca No. 13-19-41, 2020-Ohio-1314, ¶ 30; State v.
Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 56.
{¶47} In sum, there was sufficient evidence presented to support all of
Queen’s convictions.4 In addition, there was a significant amount of circumstantial
4
Given that numerous grand theft charges were merged with the burglary for purposes of sentencing and one
grand theft charge was merged with the breaking and entering for purposes of sentencing, we need not discuss
the sufficiency or weight of these issues because no conviction has been entered. State v. Kunzer, 3d Dist.
Crawford No. 3-18-16, 2019-Ohio-2959, ¶ 38. However, even if we did have to analyze these issues, the
circumstantial evidence also supports the jury’s verdicts.
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evidence establishing Queen’s guilt on all four of his convictions, thus we cannot
find that the jury clearly lost its way or committed a manifest miscarriage of justice
by convicting Queen in this matter, particularly when giving deference to a jury’s
credibility determinations. Therefore, Queen’s convictions were also not against
the weight of the evidence. For all of these reasons, Queen’s first assignment of
error is overruled.
Second Assignment of Error
{¶48} In his second assignment of error, Queen argues that his convictions
for burglary and breaking and entering should have merged for purposes of
sentencing.
Standard of Review
{¶49} “ ‘Whether offenses are allied offenses of similar import is a question
of law that this Court reviews de novo.’ ” State v. Jessen, 3d Dist. Auglaize No. 2-
18-16, 2019-Ohio-907, ¶ 22, quoting State v. Frye, 3d Dist. Allen No. 1-17-30,
2018-Ohio-894; see generally State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-955.
Relevant Authority
{¶50} Revised Code 2941.25, Ohio’s multiple-count statute, states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
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(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶51} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme
Court of Ohio held the following with regard to determining allied offenses:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate
three separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of
the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
The Supreme Court in Ruff explained:
At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant’s conduct.
The evidence at trial or during a plea or sentencing hearing will
reveal whether the offenses have similar import. When a
defendant’s conduct victimizes more than one person, the harm
for each person is separate and distinct, and therefore, the
defendant can be convicted of multiple counts. Also, a defendant’s
conduct that constitutes two or more offenses against a single
victim can support multiple convictions if the harm that results
from each offense is separate and identifiable from the harm of
the other offense. We therefore hold that two or more offenses of
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dissimilar import exist within the meaning of R.C. 2941.25(B)
when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is
separate and identifiable.
Ruff, 2015-Ohio-995 at ¶ 26.
Analysis
{¶52} Queen claims on appeal that his burglary and breaking and entering
convictions should have merged for purposes of sentencing. He essentially argues
that the victim is the same in this case and that his actions occurred close in time
and proximity. However, Queen ignores the fact that the harm from the burglary
and the harm from the breaking and entering are separate and readily identifiable.
{¶53} The breaking and entering of the barn was complete once Queen
entered the barn with an intent to steal items—which he ultimately did. Then, Queen
committed an entirely separate crime by going into Robert’s residence, forcing open
the door and taking the gun safe. These two incidents are completely separate.
Queen’s commission of one crime did not constitute the commission of the other.
{¶54} Under Ruff, offenses are not allied where the harm from each offense
is separate and identifiable. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 26.
The harm/theft done in the barn and the harm/theft done in the house are entirely
separate, albeit similar, and could have been completed without the other. Thus,
like the trial court, we find that the burglary and breaking and entering convictions
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were not allied offenses of similar import in this case.5 Therefore, Queen’s second
assignment of error is overruled.
Conclusion
{¶55} For the foregoing reasons Queen’s assignments of error are overruled
and the judgment of the Hardin County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
5
Queen does not make any argument in his brief regarding his remaining convictions being allied offenses
of similar import. However, even if he did, we similarly find, like the trial court, that the offenses were
committed separately and would not merge for purposes of sentencing.
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