State v. Ramunas ( 2021 )


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  • [Cite as State v. Ramunas, 
    2021-Ohio-3191
    .]
    COURT OF APPEALS
    DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    STATE OF OHIO                                 :       Hon. Craig R. Baldwin, P.J.
    :       Hon. W. Scott Gwin, J.
    Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
    :
    -vs-                                          :
    :       Case No. 20 CAA 12 0054
    KRISTEN RAMUNAS                               :
    :
    Defendant-Appellant       :       OPINION
    CHARACTER OF PROCEEDING:                          Criminal appeal from the Delaware County
    Court of Common Pleas, Case No. 20 CR I
    03 0171
    JUDGMENT:                                         Affirmed in part; Reversed in part and
    Remanded
    DATE OF JUDGMENT ENTRY:                           September 13, 2021
    APPEARANCES:
    For Plaintiff-Appellee                            For Defendant-Appellant
    MELISSA A. SCHIFFEL                               APRIL F. CAMPBELL
    Delaware Coounty Prosecutor                       Campbell Law, LLC
    BY: R. JOSEPH VARVEL                              46 1/2 North Sandusky Street
    Assistant Prosecutor                              Delaware, OH 43015
    145 North Union Street
    Delaware, OH 43015
    [Cite as State v. Ramunas, 
    2021-Ohio-3191
    .]
    Gwin, J.,
    {¶1}    Defendant-appellant Kristen Ramunas [“Ramunas”] appeals her sentences
    after a negotiated guilty plea in the Delaware County Court of Common Pleas.
    Facts and Procedural History
    {¶2}    In the winter of 2019 and 2020, Ramunas stole jewelry, credit cards, and
    personal items from six elderly persons living at Powell Assisted Living and Memory Care
    where she was working at the time. As a result, Ramunas was indicted on two counts of
    second-degree felony burglary, because she went into two victim's rooms by force,
    stealth, or deception when the victim was present or likely to be, to commit the offenses,
    in violation of R.C. 2929.12(A)(2)(counts one and eight); three counts of fifth-degree
    felony theft, because the economic value of what was stolen from three elderly victims
    was not significant, in violation of R.C. 2913.02(A)(1)(counts two, three, and four); three
    counts of fourth-degree felony theft, because the economic value of what was stolen from
    three elderly victims was more significant, in violation of R.C. 2913.02(A)(1); (counts five,
    six, and nine); and two counts of fourth-degree felony identity fraud, because Ramunas
    took credit cards from two of these elderly victims, to use at different stores, in violation
    of R.C. 2913.49(B)(2).
    {¶3}    On October 29, 2020, Ramunas pleaded guilty to every count in the
    indictment. The two burglaries (count 1 and count 8) were amended from second-degree
    felonies to third-degree felonies, because no accomplice was present or likely to be
    present.
    {¶4}    On December 1, 2020, during the sentencing hearing, the trial court raised
    the issue of whether Ramunas's burglary counts merged with the underlying theft
    Delaware County, Case No. 20 CAA 12 0054                                                   3
    offenses for which Ramunas also pleaded guilty. The state argued that those offenses
    did not merge, because the harm from burglary is different from the harm of the thefts.
    The state contended that the burglaries were complete at the time of the trespass, and
    that the thefts itself was not truly complete until Ramunas disposed of the stolen items at
    a pawn shop. Ramunas argued that those offenses merged, because her purpose in
    committing the burglaries and thefts were the same, and that there was a commonality
    between location and theft.
    {¶5}   Ultimately, the trial court concluded those offenses did not merge. The trial
    judge reasoned that burglary has a separate economic harm and purpose, because it
    relates to a person's ability to live peacefully within their own residence. It reasoned that
    theft was different, it is a different offense, with its own purpose. The trial court then
    reviewed Ramunas's partial pre-sentence investigation. The trial court sentenced
    Ramunas to an aggregate four-and-a-half-year prison sentence. The judge imposed a
    nine-month prison sentence for both burglaries, which it ran concurrently to the six-month
    prison sentences for the underlying theft offenses. The judge then imposed a six-month
    sentence on every other offense, running them consecutively to one another. In the end
    it concluded that these sentences were necessary to protect the public from future crime,
    and to punish Ramunas, when it concluded that the harm caused was so great that no
    single prison term reflected the seriousness of Ramunas's actions.
    Assignment of Error
    {¶6}   Ramunas raises one Assignment of Error:
    {¶7}   “I. THE TRIAL COURT ERRED IN FAILING TO MERGE RAMUNAS'S
    BURGLARY AND THEFT COUNTS.”
    Delaware County, Case No. 20 CAA 12 0054                                                  4
    Law and Analysis
    {¶8}      Ramunas argues the trial court erred in failing to merge Ramunas's two
    burglaries (count one and count 8), with the underlying theft counts (count two and
    count eight).
    Standard of Appellate Review
    {¶9}      We review a trial court's R.C. 2941.25 determination de novo. State v.
    Williams, 
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    , 
    983 N.E.2d 1245
    , ¶ 12. As the Ohio
    Supreme Court in Williams observed,
    Appellate courts apply the law to the facts of individual cases to make
    a legal determination as to whether R.C. 2941.25 allows multiple
    convictions. That facts are involved in the analysis does not make the issue
    a question of fact deserving of deference to a trial court:
    [A] review of the evidence is more often than not vital
    to the resolution of a question of law. But the fact that a
    question of law involves a consideration of the facts or the
    evidence does not turn it into a question of fact. Nor does that
    consideration involve the court in weighing the evidence or
    passing upon its credibility.
    O’Day v. Webb, 
    29 Ohio St.2d 215
    , 219, 
    280 N.E.2d 896
     (1972).
    As in cases involving review of motions to suppress, “the appellate
    court must * * * independently determine, without deference to the
    conclusion of the trial court, whether the facts satisfy the applicable legal
    standard.” State v. Burnside, 
    100 Ohio St.3d 152
    , 
    2003-Ohio-5372
    , 797
    Delaware County, Case No. 20 CAA 12 0054                                                  
    5 N.E.2d 71
    , ¶ 8. In cases like this, it is the jury making factual determinations,
    and the reviewing court owes deference to those determinations, but it owes
    no deference to the trial court’s application of the law to those facts.
    Williams, 
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    , 
    983 N.E.2d 1245
    , ¶25-26.
    Issue for Appellate Review: Whether R.C. 2941.25 allows multiple convictions
    for burglary and theft in Ramunas’s case
    {¶10} R.C. 2941.25 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.
    (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.
    {¶11} In State v. Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    , 
    34 N.E.3d 892
    ,
    syllabus, the Supreme Court of Ohio held:
    1. In determining whether offenses are allied offenses of similar
    import within the meaning of R.C. 2841.25, 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. 2841.25(B) when the defendant’s conduct constitutes offenses
    Delaware County, Case No. 20 CAA 12 0054                                               6
    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 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.
    {¶12} In paragraph 26 of the opinion, the Ruff court stated:
    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 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.
    {¶13} In count one and count eight, Ramunas was convicted of burglary, a
    violation of R.C. 2911.12(A)(2), which provides:
    Delaware County, Case No. 20 CAA 12 0054                                                  7
    (A) No person, by force, stealth, or deception, shall do any of the
    following:
    ***
    (2) Trespass in an occupied structure * * * 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.
    {¶14} In count two and count nine, Ramunas also was found guilty of theft under
    R.C. 2913.02(A)(1), which provides that “[n]o person, with purpose to deprive the owner
    of property or services, shall knowingly obtain or exert control over either the property or
    services * * * [w]ithout the consent of the owner or person authorized to give consent [.]”
    {¶15} “Trespass” is defined as knowingly and without privilege entering or
    remaining on the premises of another. R.C. 2911.21(A)(1). “The crime of aggravated
    burglary continues so long as the defendant remains in the structure being burglarized
    because the trespass has not been completed.” State v. Powell, 
    59 Ohio St.3d 62
    , 63,
    
    571 N.E.2d 125
    (1991). Therefore, an offender “may form the purpose to commit a criminal
    offense at any point during the course of a trespass.” State v. Fontes, 
    87 Ohio St.3d 527
    ,
    2000–Ohio–472 
    721 N.E.2d 1037
    , syllabus. (Construing the Aggravated Burglary
    statute). Because the language concerning “purpose to commit...any criminal offense” is
    also found in R.C. 2911.12, defining burglary, the rule of law set forth in Fontes also
    applies to the offense of burglary. See State v. Evett, 9th Dist. Medina No. 14CA0008-M,
    
    2015-Ohio-2722
    , ¶ 16; State v. Tyson, 10th Dist. Franklin No. 10AP–830, 2011–Ohio–
    4981, ¶ 31; State v. Moore, 12th Dist. Butler No. CA2205–06–148, 2006–Ohio–2800, ¶
    8; State v. Russell, 5th Dist. Ashland No. 18-COA-021, 
    2019-Ohio-692
    , ¶43.
    Delaware County, Case No. 20 CAA 12 0054                                                8
    {¶16} Thus, a key element of the crime of burglary is a trespass with the intent to
    commit any criminal offense. If no intent to commit a criminal offense is proven then the
    offender may be guilty of a criminal trespass pursuant to R.C. 2911.21. Criminal trespass
    is a lesser included offense of burglary. State v. Morris, 9th Dist. Medina No. 07CA0044-
    M, 
    2008-Ohio-3209
    , ¶7; 11.
    {¶17} In the case at bar, “the state was required to show that [Ramunas] invaded
    the dwelling for the purpose of committing a crime or that [s]he formed that intent during
    the trespass.” State v. Gardner, 
    118 Ohio St.3d 420
    , 
    2008-Ohio-2787
    , 
    889 N.E.2d 995
    ,
    ¶33 (citation omitted).
    {¶18} As is evident from the ten-count indictment in the case at bar, from
    December 2019 through February 2020, Ramunas was engaged in stealing items from
    the residents of the assisted living facility where she was employed. When she entered
    the room of a patient on December 31, 2019 and February 17, 2020, her sole intent was
    to steal items from the room. There was no breaking and entering, no separate victim,
    and the sole purpose in entering the rooms was to steal items. Thus, the conduct and the
    animus for entering the room and for stealing items therein are identical in this case. In
    other word, Ramunas’s actions were committed as one continuing course of conduct. Cf.,
    State v. James, 5th Dist. Delaware No. 11 CAA 05 0045, 
    2012-Ohio-966
    , ¶40 (applying
    State v. Johnson, 
    128 Ohio St.3d, 2010
    –Ohio–6314, 
    128 Ohio St.3d 153
    , 
    942 N.E.2d 1061
    , abrogation recognized in State v. Earley, 
    145 Ohio St.3d 281
    , 
    2015-Ohio-4615
    , 
    49 N.E.3d 266
    , ¶11).
    {¶19} Without minimizing the seriousness of Ramunas’s conduct in this case, to
    find that the harm caused by the trespass into the rooms is separate and identifiable from
    Delaware County, Case No. 20 CAA 12 0054                                                9
    the harm caused by the taking of items from the rooms is, in essence, to render R.C.
    2941.25 a nullity. Whenever two crimes are charged in an indictment an argument can
    be made that the harm from each is “separate and identifiable” so merger would never be
    permitted in any case. Prior to the pronouncement in Ruff, this court found that burglary
    and theft were allied offenses pursuant to R.C. 2941.25. See, State v. James, 5th Dist.
    Delaware No. 11 CAA 05 0045, 
    2012-Ohio-966
    , ¶40.
    {¶20} In the case at bar, we find that the burglary and theft charges stem from
    Ramunas’s conduct of entering the resident’s room with the purpose to steal items
    therein. Ramunas committed both offenses through a single course of conduct and with
    a single state of mind. Therefore, the charges in count one and two are allied offenses
    and should have been merged, and the charges in count eight and count nine are allied
    offenses and should have been merged. The state retains the right to elect which allied
    offense to pursue on resentencing.
    {¶21} We recognize that the trial court imposed the sentence for count one
    concurrently with the sentence for count two and the sentence for count eight concurrently
    with the sentence for count nine. However, the imposition of concurrent sentences is not
    the equivalent of merging allied offenses. State v. Damron, 
    129 Ohio St.3d 86
    , 2011-
    Ohio-2268, 
    95 N.E.2d 512
    , ¶17. Therefore, a trial court must merge the crimes into a
    single conviction and impose a sentence that is appropriate for the offense chosen for
    sentencing. 
    Id.
     citing State v. Brown, 
    119 Ohio St.3d 447
    , 
    2008-Ohio-4569
    , 
    895 N.E.2d 149
    , at ¶ 41–43.
    {¶22} “When a cause is remanded to a trial court to correct an allied-offenses
    sentencing error, the trial court must hold a new sentencing hearing for the offenses that
    Delaware County, Case No. 20 CAA 12 0054                                             10
    remain after the state selects which allied offense or offenses to pursue. R.C. §§
    2929.19(A), 2941.25.” State v. Wilson, 
    121 Ohio St.3d 214
    , 
    2011-Ohio-2669
    , 
    951 N.E.2d 381
     at paragraph one of the syllabus. Only the sentences for the offenses that were
    affected by the appealed error are reviewed de novo; the sentences for any offenses that
    were not affected by the appealed error are not vacated and are not subject to review.
    Wilson at ¶15 citing State v. Saxon, 
    109 Ohio St.3d 176
    , 
    2006-Ohio-1245
    , 
    846 N.E.2d 824
    , at paragraph three of the syllabus.
    {¶23} Ramunas’s sole assignment of error is sustained.
    {¶24} The judgment of the Court of Common Pleas of Delaware County, Ohio, is
    affirmed in part, reversed in part. Ramunas’s sentences on Count One and Count Two
    and Count Eight and Count Nine are vacated. In accordance with the Ohio Supreme
    Court’s decision in State v. Wilson, 
    129 Ohio St.3d 214
    , 2011–Ohio–2669, 
    951 N.E.2d 381
    , we remand this case to the trial court for further proceedings consistent with that
    opinion.
    By Gwin, J.,
    Baldwin, P.J., and
    Wise, Earle, J., concur
    

Document Info

Docket Number: 20 CAA 120054

Judges: Gwin

Filed Date: 9/15/2021

Precedential Status: Precedential

Modified Date: 9/15/2021