State v. Brown

[Cite as State v. Brown, 2013-Ohio-854.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-12-33
v.
JEFFREY E. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2011 0479
Judgment Affirmed
Date of Decision: March 11, 2013
APPEARANCES:
Michael J. Short for Appellant
Jana E. Emerick for Appellee
Case No. 1-12-33
ROGERS, J.
{¶1} Defendant-Appellant, Jeffery Brown, appeals the judgment of the
Court of Common Pleas of Allen County convicting him of grand theft and having
weapons while under disability. On appeal, Brown contends that the trial court
erred when it ordered his sentences to be served consecutively to each other and to
his sentence imposed in a separate criminal matter arising in Putnam County.
Based on the following, we affirm the trial court’s judgment.
Putnam County Offense
{¶2} Sometime between late October and early November 2011, a
residence in Putnam County was burglarized. Among the items stolen from the
residence was a Remington 870 shotgun. During the time of the burglary, Brown
lived in Allen County at a residence owned by Danny Crichfield. Sometime after
the burglary, Brown was arrested for an unrelated offense. After Brown’s arrest,
Crichfield discovered a Remington Model 870 shotgun in his residence, which did
not belong to him, and turned it over to the Allen County Sheriff’s Office. The
shotgun was eventually identified as the firearm stolen from the residence in
Putnam County.
{¶3} On January 31, 2012, the Putnam County Grand Jury returned an
indictment charging Brown with burglary in violation of R.C. 2911.12(A)(3), a
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felony of the third degree.1 On April 26, 2012, Brown entered a plea of guilty to
the sole count. Thereafter, the Putnam County Court of Common Pleas sentenced
Brown to a two-year prison term. See Change of Plea Hearing Tr., p. 20.
Allen County Offense
{¶4} Around the time Crichfield discovered the Remington Model 870
shotgun in his residence, he learned that his shotgun, a Remington Model 11, was
missing. While in custody for an unrelated offense, Brown admitted that he took
Crichfield’s shotgun without Crichfield’s knowledge or permission, and sold it to
a pawn broker. Brown further acknowledged that the Remington Model 870
shotgun that Crichfield found in his residence was obtained during a burglary
committed in Putnam County, and that he was involved in the burglary.
{¶5} On December 15, 2011, the Allen County Grand Jury returned an
indictment against Brown charging him as follows: Count One, grand theft of a
firearm in violation of R.C. 2913.02(A)(1), (B)(4), a felony of the third degree;
Count Two, receiving stolen property in violation of R.C. 2913.51(A), a felony of
the fourth degree; Count Three, having weapons while under disability in violation
of R.C. 2923.13(A)(3), a felony of the third degree; and, Count Four, having
weapons while under disability in violation of R.C. 2923.13(A)(3), a felony of the
third degree. Brown entered pleas of not guilty to all counts in the indictment.
1
The case number of the criminal matter in Putnam County is 2012 CR 12.
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{¶6} On June 1, 2012, the matter proceeded to a change of plea hearing.
Pursuant to a written plea agreement, Brown entered pleas of guilty to Counts One
and Four, which the trial court accepted, and the State dismissed the remaining
counts.
{¶7} On July 12, 2012, the matter proceeded to sentencing. Prior to
sentencing, the trial court addressed the issue of merger. Brown argued that Count
Four and the offense in Putnam County were allied offenses. Specifically, Brown
asserted that he committed the offense associated with Count Four during the
burglary in Putnam County. As such, Brown argued that Count Four and the
offense in Putnam County should be merged for purposes of sentencing. The trial
court disagreed, and did not merge the offenses. The trial court proceeded to
sentence Brown to 18 months in prison under Count One, and 12 months in prison
under Count Four. The trial court further ordered the sentences to be served
consecutively to each other and consecutively to the sentence imposed in Putnam
County.2
{¶8} Brown timely appealed the trial court’s judgment, presenting the
following assignment of error for our review.
2
In its judgment entry of sentencing, the trial court ordered that the sentences imposed for Counts One and
Four be served consecutively “TO THE PUTNAM COUNTY CASE WHERE INCARCERATION WAS
IMPOSED[,]” without specifying any case number or other identifying information. Judgment Entry, p. 3.
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Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT SENTENCED THE
DEFENDANT ON THE WEAPONS UNDER DISABILITY
AND GRAND THEFT OF A FIREARM CHARGES AS THE
CONVICTIONS AND SENTENCES WERE PRECLUDED BY
DOUBLE JEOPARDY AND MERGER.
{¶9} In his sole assignment of error, Brown contends that the State violated
his constitutional right against double jeopardy by subjecting him to successive
prosecutions for allied offenses of similar import. Specifically, Brown maintains
that his burglary conviction in Putnam County and the offenses associated with
Counts One and Four are allied offenses of similar import. As such, Brown argues
that the trial court erred when it ordered him to serve the sentences imposed for
Counts One and Four consecutively to each other and consecutively to the
sentence imposed in Putnam County. We disagree.
{¶10} “The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution protect the
accused from being put in jeopardy twice for the same offense. These provisions
protect an individual against successive punishments as well as successive
prosecutions for the same offense.” State v. Moore, 110 Ohio App.3d 649, 652
(1st Dist. 1996).
{¶11} To determine whether Brown’s right against double jeopardy was
violated, we must examine his convictions in this matter and his conviction in
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Putnam County. A situation similar to the one here occurred in State v. Clelland,
83 Ohio App.3d 474 (4th Dist.1992). In Clelland, the court explained how
appellate courts should analyze successive prosecutions in separate jurisdictions
for potential violations of an individual’s right against double jeopardy as follows:
When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, he may be tried for all of those
offenses in any jurisdiction in which one of those offenses occurred.
R.C. 2901.12(H). In [State v. Urvan, 4 Ohio App.3d 151 (8th Dist.
1982)], the Eighth District Court of Appeals held that once one
jurisdiction takes action first, it preempts venue and jurisdiction for
the whole matter, and jeopardy must attach as a result of the activity
of the first actor. See, also, State v. DeLong (1990), 70 Ohio App.3d
402, 591 N.E.2d 345. In reaching their holdings, the Urvan (theft
and receiving stolen property) and DeLong (robbery and receiving
stolen property) courts emphasized that the offenses [charged in
different jurisdictions] were allied offenses of similar import
pursuant to R.C. 2941.25. See, e.g., DeLong, supra, 70 Ohio App.3d
at 405, 591 N.E.2d at 346, where the Tenth District Court of Appeals
stated that “[a]ny possible question stemming from one jurisdiction’s
failure to include another available charge in its prosecution is
resolved by R.C. 2941.25, which requires an election between
convictions for allied offenses when the state chooses to pursue
both.” Pursuant to Urvan and DeLong, we must consider whether
the offenses here are allied offenses of similar import pursuant to
R.C. 2941.25. Clelland at 483-84. Accord State v. Barnett, 124
Ohio App.3d 746 (2d Dist. 1998).
{¶12} Accordingly, we must determine whether Brown’s offenses of grand
theft of a firearm, having weapons while under disability, and burglary are allied
offenses of similar import. State v. Morgan, 4th Dist. No. 12CA3305, 2012-Ohio-
3936, ¶ 10. If these offenses are allied offenses of similar import, Brown’s
convictions in this matter, and consequently the sentences imposed, violated his
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right against double jeopardy provided for in the United States and Ohio
Constitutions. Id.{¶13} Ohio’s statute concerning multiple counts, R.C. 2941.25, provides as
follows:
(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.
This statutory language “codifie[s] the judicial doctrine of merger” and
“prohibit[s] the ‘cumulative punishment of a defendant for the same criminal act
where his conduct can be construed to constitute two statutory offenses, when, in
substance and effect, only one offense has been committed.’” State v. Ware, 63
Ohio St.2d 84, 86 (1980), quoting State v. Roberts, 62 Ohio St.2d 170, 172-173
(1980).
{¶14} The Ohio Supreme has articulated the following test to determine
whether offenses are allied:
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the [first] question is whether it is possible
to commit one offense and commit the other offense with the same
conduct, not whether it is possible to commit one without
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committing the other. * * * 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, or 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. (Emphasis sic; Citations omitted.) State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 48-51.
An appellate court reviews a trial court’s determination concerning merger de
novo. State v. Williams, __ Ohio St.3d __, 2012-Ohio-5699, ¶ 28.
{¶15} Before we address whether the offenses at issue are allied, we must
resolve some confusion pertaining to the facts associated with Counts One and
Four. On appeal, Brown’s argument suggests that Counts One and Four arise
from the same criminal event, the burglary in Putnam County. The record,
however, reveals otherwise. Count One stems from the theft of a firearm from
Crichfield’s residence in Allen County. See Sentencing Hearing Tr., p. 22-24.
Count Four, on the other hand, stems from Brown’s possession of a firearm that
was stolen during the burglary in Putnam County. Id. at p. 5. Having resolved
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this confusion, we will determine whether the trial court erred when it determined
that the burglary in Putnam County and Counts One and Four were not allied
offenses of similar import.
Count One – Grand Theft of a Firearm
{¶16} Upon review, we find that Count One does not merge with Count
Four or the burglary in Putnam County. The record reveals that the firearm
associated with Count Four was different from the firearm associated with Count
One, and that the theft associated with Count One occurred separately from the
burglary in Putnam County. As such, we find that the burglary in Putnam County
and the offense associated with Count Four were committed separately and with
separate animus from the offense associated with Count One. Accordingly, the
trial court did not err when it failed to merge the sentence imposed for Count One
into the sentences imposed for Count Four or the burglary in Putnam County.
Count Four – Having Weapons While Under Disability
{¶17} Having determined that Counts One and Four are not allied offenses,
we are left to determine whether Count Four and the burglary in Putnam County
are allied offenses.
{¶18} Upon review, we find that Count Four and the burglary in Putnam
County are not allied offenses. There is no dispute that the firearm associated with
Count Four was obtained during the Putnam County burglary. However, the
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record contains little detail about the burglary itself. Despite the lack of a record,
we still find that Count Four and the burglary in Putnam County were not allied
offenses. In particular, Brown’s continued possession of the firearm after
committing the burglary demonstrates a separate animus to commit the offense of
having weapons while under disability. See State v. Logan, 60 Ohio St.2d 126(1979) (prolonged unlawful restraint of the victim can demonstrate separate
animus for an underlying offense, such as robbery, and kidnapping). Given the
foregoing, the trial court did not err when it failed to merge the sentence imposed
for Count Four into the sentence imposed for the burglary in Putnam County.
{¶19} Having determined that none of the offenses at issue are allied, we
find that Brown’s right against double jeopardy was not violated when the trial
court ordered him to serve the sentences imposed for Counts One and Four
consecutively to each other and consecutively to the sentence imposed in Putnam
County.
{¶20} Accordingly, we overrule Brown’s sole assignment of error.
{¶21} Having found no error prejudicial to Brown herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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