State v. Alberston

[Cite as State v. Alberston, 2021-Ohio-2125.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee/Cross- : Appellate Case No. 28722
Appellant :
: Trial Court Case No. 2018-CR-1312/1
v. :
: (Criminal Appeal from
SHAWN ALBERTSON : Common Pleas Court)
:
Defendant-Appellant/Cross- :
Appellee
...........
OPINION
Rendered on the 25th day of June, 2021.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee/Cross-Appellant
SARA M. BARRY, Atty. Reg. No. 0090909, 301 West First Street, Suite 207, Dayton,
Ohio 45402
Attorney for Defendant-Appellant/Cross-Appellee
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Shawn Albertson, appeals from his conviction in the
Montgomery County Court of Common Pleas after a jury found him guilty of aggravated
burglary, aggravated arson, felony murder, aggravated robbery, grand theft of a motor
vehicle, grand theft of a firearm, and aggravated possession of drugs. In support of his
appeal, Albertson contends that his trial counsel provided ineffective assistance during
his motion to suppress hearing and during his trial. Albertson also argues that his
convictions for aggravated burglary, aggravated arson, felony murder, and aggravated
robbery were not supported by sufficient evidence and were against the manifest weight
of the evidence. Albertson further claims that the trial court erred by failing to merge his
grand theft of a firearm offense with his aggravated burglary and aggravated robbery
offenses at sentencing. Albertson additionally contends that the trial court erred by
ordering him to pay restitution without first considering his present and future ability to
pay as required by R.C. 2929.19(B)(5). The State filed a cross-appeal asserting that the
trial court erred by merging Albertson’s aggravated burglary and aggravated robbery
offenses with his aggravated arson and felony murder offenses. For the reasons
outlined below, the judgment of the trial court will be affirmed in part, reversed in part, and
the matter will be remanded to the trial court for the sole purpose of resentencing
Albertson.
Facts and Course of Proceedings
{¶ 2} On August 31, 2018, a Montgomery County grand jury returned a nine-count
indictment charging Albertson with the following offenses:
1. Aggravated Burglary, R.C. 2911.11(A)(1), first-degree felony;
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2. Aggravated Arson (occupied structure), R.C. 2909.02(A)(2),
second-degree felony;
3. Aggravated Arson (harm to person), R.C. 2909.02(A)(1), first-
degree felony;
4. Felony Murder (aggravated arson occupied structure), R.C.
2903.02(B), unclassified felony;
5. Felony Murder (aggravated arson harm to person), R.C.
2903.02(B), unclassified felony;
6. Aggravated Robbery (serious physical harm), R.C. 2911.01(A)(3),
first-degree felony;
7. Grand Theft (motor vehicle), R.C. 2913.02(A)(1), fourth-degree
felony;
8. Grand Theft (firearm), R.C. 2913.02(A)(1), third-degree felony; and
9. Aggravated Possession of Drugs (methamphetamine), R.C.
2925.11(A), fifth-degree felony.
{¶ 3} The charges stemmed from allegations that on April 1, 2018, Albertson
trespassed inside the Dayton residence of 75-year-old Gerald Manns, and stole money,
a handgun, and several other items of Manns’ personal property. It was also alleged that
Albertson set fire to Manns’ residence before leaving the scene and fleeing in Manns’
truck. There is no dispute that Manns was subsequently found on the basement floor of
his residence and that Manns died as a result of the fire. There is also no dispute that a
few hours after the fire, detectives tracked Albertson to a hotel room in Butler Township
wherein they discovered drugs, drugs paraphernalia, and several items of Manns’
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personal property. Albertson was later arrested and charged with the aforementioned
offenses.
1. Motion to Suppress
{¶ 4} Albertson pled not guilty to the indicted charges and filed a motion to
suppress. Albertson’s motion to suppress challenged the admissibility of the evidence
discovered in the Butler Township hotel room. In support of his motion, Albertson
claimed that the evidence in the hotel room was inadmissible because it was seized via
an invalid search warrant that lacked probable cause. The trial court held a hearing on
the motion and heard testimony from one witness, Detective Eric Dingee of the
Montgomery County Sheriff’s Office. The following is a summary of Det. Dingee’s
suppression hearing testimony.
{¶ 5} On April 1, 2018, Det. Dingee responded to Manns’ residence on Merrimac
Avenue in Dayton, Ohio, to investigate a suspicious fire and the death of Manns. At that
time, Det. Dingee met with Manns’ son, Frank Manns. Frank advised Det. Dingee that
his father’s house looked as though it had been ransacked. Frank also told Det. Dingee
that his father’s cell phone, .357 magnum handgun, and gray Chevy Silverado truck were
missing from the residence.
{¶ 6} Shortly after Det. Dingee learned that Manns’ truck was missing, a private
citizen reported that a suspicious Chevy Silverado truck was blocking his driveway on
Foster Avenue. The truck in question was located only 10 minutes from Manns’
residence and was later identified as Manns’ missing truck. A witness on Foster Avenue
reported that the driver of the truck was a white male. The witness observed the driver
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transfer items of property from inside the truck into a white Ford Explorer. The witness
reported that a white female was driving the Explorer and that the Explorer had a broken
rear driver-side window that was covered with green tape. The witness reported that the
male and female drove away in the Explorer, leaving Manns’ truck behind.
{¶ 7} After learning this information, Det. Dingee and his partner, Det. Kyle
Baranyi, drove around to various hotels, clubs, and parking lots in Montgomery County in
search of a white Ford Explorer with green tape on the rear driver-side window. A little
after midnight on April 2, 2018, the detectives located the Explorer parked at a Days Inn
hotel in Butler Township. After locating the Explorer, the detectives ran the vehicle’s
license plate and learned that the vehicle was registered to an individual named Ashley
Payton. Because the vehicle was parked in front of room numbers 138 and 139, Det.
Dingee made contact with the hotel clerk in order to determine who was renting those two
rooms. The hotel clerk provided Det. Dingee with registration forms, which showed that
room number 139 was registered to an individual named Nancy Dalton. The detectives
also conducted a Facebook search on the vehicle’s owner, Payton, and discovered that
Payton was associated with Dalton on Facebook.
{¶ 8} In order to make contact with the occupants of room 139, Det. Dingee and
Det. Baranyi requested the assistance of a uniformed officer. Dep. David Posma later
arrived on the scene and knocked on the hotel room door with the two detectives standing
beside him. After Dep. Posma applied two series of knocks to the door, a white female,
later identified as Dalton, opened the curtain to the hotel room’s window. At that time,
Dep. Posma identified himself to Dalton and asked Dalton if she would come to the door.
When Dalton opened the hotel room door, Det. Dingee and Det. Baranyi identified
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themselves and asked if they could come inside the hotel room to discuss a suspicious
fire and death that they were investigating. Dalton responded “yes, come in,” and
motioned all three officers inside the hotel room. Trans. Vol. I, p. 21.
{¶ 9} As soon as Det. Dingee walked inside the hotel room, he observed duffle
bags sitting near the front door. One of the duffle bags was open and it contained gallon-
sized Ziploc bags that contained several smaller Ziploc bags. The smaller Ziploc bags
contained a tannish substance that Det. Dingee believed was methamphetamine or
heroin. The Ziploc bags were in Det. Dingee’s plain view and Det. Dingee did not have
to manipulate the duffle bag in order to see what was inside.
{¶ 10} While inside the hotel room, the detectives asked Dalton if she was driving
the Ford Explorer with the green tape on the rear driver-side window. Dalton advised
that she was, and that the vehicle belonged to her daughter. Det. Baranyi also asked
Dalton if anyone else was in the hotel room. In response, Dalton looked behind her and
a white male, later identified as Albertson, walked out of the bathroom. Albertson walked
out of the bathroom without any order or show of force from the officers. The officers did
not spread out in the hotel room, but stood together in one location side by side.
{¶ 11} Although the officers were not conducting a search, they were nevertheless
looking around the hotel room. As Albertson sat beside Dalton on the bed, Det. Dingee
noticed that the nightstand next to the bed had its top drawer open. Det. Dingee could
see that a handgun was inside the drawer in plain view. Dep. Posma also saw the
handgun and immediately told Albertson not to touch it. Dep. Posma then picked up the
handgun from the drawer for purposes of officer safety. Without any questioning,
Albertson told the detectives that the gun was a pellet gun. After confirming that the gun
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was a pellet gun, Dep. Posma placed the gun on a seat behind him.
{¶ 12} In addition to the pellet gun, Det. Dingee observed pill bottles, collectible
coins, and a glass pipe for smoking methamphetamine lying on top of the nightstand in
plain view. While Det. Dingee was talking to Dalton and Albertson about the fire at
Manns’ residence, Det. Baranyi whispered to him that one of the pill bottles on the
nightstand had Manns’ name on it. After this advisement, Det. Dingee looked over at the
pill bottles on the nightstand and personally observed the name “Gerald Manns” on one
of the pill bottles. Det. Dingee also observed a cell phone lying on top of the hotel room
dresser in plain view. Det. Dingee testified that the cell phone was a flip phone, which
matched the description of Manns’ missing cell phone.
{¶ 13} Det. Dingee and the other officers did not ask Albertson any specific
questions in the hotel room. Albertson made no statements to the officers other than
voluntarily advising the officers about the pellet gun and denying any knowledge about
the fire at Manns’ residence. However, due to the pill bottle with Manns’ name on it and
the information surrounding the Ford Explorer, Det. Dingee suspected that Albertson and
Dalton were involved in the fire and Manns’ death.
{¶ 14} Det. Dingee testified that he believed there was probable cause to arrest
Albertson and Dalton for receipt of stolen property and possession of drugs and drug
paraphernalia. Det. Dingee, however, did not place Dalton and Albertson under arrest
in the hotel room nor indicate that they were being charged with a crime. Instead, Det.
Dingee advised Dalton and Albertson that they were being detained for questioning. In
doing so, Det. Dingee placed them in handcuffs and had them transported to the Special
Investigations Unit of the Montgomery County Sheriff’s Office. When they arrived at the
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Sheriff’s Office, Det. Baranyi read Albertson his Miranda rights and attempted to conduct
an interview. Albertson, however, refused to be interviewed and would not sign the
Miranda form. Albertson made no statements during the attempted interview.
{¶ 15} In the meantime, Det. Dingee applied for a warrant to search the hotel room
and the white Ford Explorer parked outside. The affidavit in support of the warrant cited
the detectives’ observations in the hotel room and the information obtained from the
witness regarding the Ford Explorer. The search warrant was subsequently granted,
which resulted in several items of evidence being seized from the hotel room.
{¶ 16} After considering the foregoing information, the trial court overruled
Albertson’s motion to suppress. In so holding, the trial court found that Albertson lacked
standing to assert a Fourth Amendment challenge to the evidence seized in the hotel
room because there was no evidence indicating that Albertson had a reasonable
expectation of privacy in the hotel room. The trial court also found that the evidence
obtained through the search warrant was admissible since the search warrant was based
on incriminating items that the officers lawfully observed in plain view after Dalton had
voluntarily consented to them entering the hotel room.
2. Jury Trial
{¶ 17} Albertson’s case proceeded to a three-day jury trial beginning on January
7, 2020. At trial, the State called 16 witnesses and presented almost 200 exhibits.
Albertson also testified in his defense. The following is a summary of the testimony and
evidence presented at trial.
{¶ 18} Albertson and Dalton had been in a serious romantic relationship for
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approximately seven years. During that time, they lived together and worked together
remodeling houses. Their relationship fell apart in early 2018, due to the couple using
drugs, which caused them to lose their job and home. In March 2018, Dalton moved into
a trailer park on Nottingham Road in Dayton, Ohio. Since Albertson was homeless, and
because the weather had been cold, Dalton permitted Albertson to stay with her for a few
days. However, on the morning of April 1, 2018, which was Easter Sunday, Dalton told
Albertson that it was time for him to leave. This caused Albertson and Dalton to get into
an argument, as Albertson did not have anywhere else to stay. Albertson, however,
eventually left that morning as Dalton requested.
{¶ 19} When Albertson left, he walked away on foot and took no possessions with
him. As Albertson was leaving, Dalton testified that she heard Albertson say that “he
wasn’t going to do without.” Trans. Vol. II, p. 381. Albertson then walked over to
Merrimac Avenue where he saw some houses that he thought were abandoned. At trial,
Albertson admitted that he went inside Gerald Manns’ Merrimac Avenue residence but
claimed that no one was inside the residence while he was there. Albertson also
admitted to opening several drawers and taking various items of Manns’ personal
property and putting the property in a gray duffle bag that he had found in a nearby
garage. Albertson claimed that he took items such as belt buckles, jewelry, money, pill
bottles, and a .357 magnum handgun that Albertson claimed was lying on the bedroom
floor. Albertson testified that he had realized the home was not abandoned once he
started opening the drawers and taking Manns’ property. Before leaving, Albertson
testified that he took money, keys, and a cell phone that were in a bowl by Manns’ front
door. Albertson used the keys to flee the scene in Manns’ gray Chevy Silverado that
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was parked nearby. Albertson testified that the truck contained other items of property
including a DeWalt drill, drill bits, a large bolt cutter, and a fishing pole.
{¶ 20} After fleeing the residence in Manns’ truck, Albertson called Dalton and told
her that he was at a Speedway gas station and needed some help starting a vehicle.
Surveillance video footage taken from a Speedway on Needmore Road in Dayton showed
Albertson pulling into the gas station in Manns’ truck at 3:35 p.m. on April 1, 2018. See
State’s Exhibit Nos. 171 and 172. The Speedway video footage also showed Dalton
pulling into the gas station approximately 20 minutes later at 3:52 p.m. Id. Dalton was
driving her daughter’s white Ford Explorer. Dalton testified that when she arrived at
Speedway, Albertson was standing under the hood of a gray truck trying to get it started.
Dalton testified that she had never seen the truck before and that she had assumed
Albertson borrowed it from someone. Dalton identified the truck at trial using a picture
of Manns’ gray Chevy Silverado.
{¶ 21} Dalton testified that they got the truck started, but that it stalled before
Albertson could drive it out of the Speedway parking lot. Dalton testified that she and
Albertson started the truck a second time and that she followed Albertson in the Ford
Explorer until the truck stalled a couple of blocks away in a nearby neighborhood.
Albertson then transferred some duffle bags and boxes of property that were inside the
truck into Dalton’s Ford Explorer. Thereafter, Dalton and Albertson left Manns’ truck in
the location where it had stalled and drove away in the Explorer.
{¶ 22} Dalton testified that she had never previously seen Albertson with the
property that he loaded into her Explorer. Dalton, however, did not immediately ask
Albertson where the property came from. Dalton instead drove Albertson to Burger King
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to get a sandwich and to Huber Heights to purchase some methamphetamine. Dalton
then drove Albertson to a Days Inn hotel on Miller Lane in Butler Township. Because
Albertson did not have a driver’s license, Albertson gave Dalton several $2 bills to pay for
a hotel room in her name. The hotel clerk that registered Dalton testified that he thought
this form of payment was odd. The hotel clerk identified Dalton’s registration form at trial,
which indicated that he had checked Dalton into the hotel at 6:00 p.m. on April 1, 2018.
{¶ 23} After checking into the hotel, Albertson transferred the property from
Dalton’s Ford Explorer into the hotel room. Dalton stayed at the hotel room for a few
minutes and then left to attend Easter dinner with her family. Dalton testified that
Albertson continued to send her text messages that evening asking when she was going
to return to the hotel. Dalton testified that she went back to the hotel around 10:30 or
11:00 p.m. to bring Albertson a plate of food. During that time, Dalton asked Albertson
where all the property came from. Dalton testified that Albertson said “nobody would say
anything about it.” Trans Vol. II, p. 411. Dalton also testified that when she asked
Albertson what had happened, Albertson described an encounter with “a guy [who] only
had $30 in his pocket.” Dalton testified that Albertson told her “he found more money,
and it pissed him off, and he hit him.” Id. at 412. Dalton also testified that Albertson
“said something about a paint can blew a door open.” Id. at 413.
{¶ 24} Shortly thereafter, Det. Dingee, Det. Baranyi, and Dep. Posma knocked on
the hotel room door and announced themselves. When Dalton opened the door, the
detectives asked to come inside to discuss a suspicious fire and death that they were
investigating. Dalton let the officers inside the hotel room, where they saw several items
in plain view that led them to believe Dalton and Albertson were involved in the fire at
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Manns’ residence. Based on the officers’ observations, Det. Dingee obtained a search
warrant for the hotel room and thereafter discovered drugs, drug paraphernalia, and
several items of Manns’ personal property inside, including Manns’ .357 magnum
handgun, cell phone, and keys.
{¶ 25} Video footage taken from a residence at 332 Nottingham Road, a road
which connects to Merrimac Avenue, showed Manns’ Chevy Silverado truck driving by
the Nottingham residence at 3:07 p.m. on the day of the fire. See State’s Exhibit Nos.
171 and 172. The video showed that the truck was coming from the direction of
Merrimac Avenue. At trial, Albertson admitted that he was the individual driving Manns’
truck on Nottingham Road at that time.
{¶ 26} The fire at Manns’ residence was reported at 3:24 p.m. by Manns’ neighbor,
Pamela Perry. See State’s Exhibit No. 165. Perry testified that she called 9-1-1 after
she saw smoke coming from a window of Manns’ home and noticed that Manns’ truck
was not parked at the residence. At around 3:33 p.m., the fire department arrived at the
scene, and responders discovered Manns lying on the basement floor of his residence
unresponsive. See State’s Exhibit No. 172. Manns’ body was located near the
threshold of a storage room that was located in the northeast part of Manns’ basement.
{¶ 27} The coroner testified to a reasonable degree of scientific certainty that
Manns died as a result of inhaling products of combustion, such as carbon monoxide and
other chemical compounds produced during a fire. In addition to superficial burns on his
face and forearms, Manns’ body had a bruise on his right elbow and a cut on his left hand.
According to the coroner, the bruise was inflicted at some point in time prior to Manns’
death. Due to Manns’ skin being discolored from exposure to carbon monoxide, the
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coroner could not determine whether the cut on Manns’ hand was inflicted before or after
his death. The coroner testified that it was possible the cut was caused by broken glass
when responders removed Manns’ body from the basement window. Because the
bruising on Manns’ arm was inflicted prior to his death, the coroner testified that the
bruising on Manns’ arm would not have been inflicted when Manns’ body was removed
from the scene of the fire. The coroner also testified that a wallet containing no money
was on Manns’ person.
{¶ 28} A fire investigation expert from the State Fire Marshal testified that, to a
reasonable degree of scientific certainty, the fire was incendiary, i.e., an intentional
human act. The fire expert also testified that the fire originated in the basement and had
two points of origin. The first point of origin was in the southeast corner of the basement
near where a bottle of paint thinner was located. The second point of origin was inside
the basement’s northeast storage room near where Manns’ body was found. The fire
expert testified that he collected items near the two origin points for purposes of testing
them for the presence of an ignitable liquid. Specifically, the fire expert collected a
framed picture, part of a cardboard box, some foam padding, and a piece of the door to
the basement’s northeast storage room.
{¶ 29} A forensic lab expert from the State Fire Marshal testified that all the items
collected, excluding the framed picture, tested positive for a specific class of ignitable
liquid known as a medium petroleum distillate. The lab expert explained that medium
petroleum distillates include substances such as paint thinners, lighter fluids, mineral
spirits, and lamp oils. The lab expert testified that the framed picture tested positive for
a slightly heavier petroleum distillate and a medium aromatic product. The lab expert
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explained that a medium aromatic product includes substances such as fuel additives or
insecticides.
{¶ 30} Multiple items of clothing worn by Manns, Albertson, and Dalton on the day
of the fire were also tested for the presence of an ignitable liquid. The forensic lab expert
testified that none of Dalton’s clothes tested positive for any ignitable liquid. In contrast,
all of Manns’ clothes (his shoes and jeans) and all of Albertson’s clothes (his jeans, t-
shirt, jacket, hat, socks, and shoes) tested positive for a medium petroleum distillate,
which is the same class of ignitable liquid that was found near the origin points of the fire.
Albertson’s jacket also tested positive for the presence of gasoline.
{¶ 31} Manns’ son, Frank, testified that his father was an antiques dealer who lived
by himself at the Merrimac Avenue residence. Frank testified that his father had a
substantial amount of property in his residence and noted that his father collected silver
dollars, two dollar bills, and various trinkets. Frank also testified that his father restored
and refinished wood furniture in his basement. Frank testified that his father had several
chemicals such as furniture stripper and paint thinner in the basement for that purpose.
{¶ 32} When Frank walked through his father’s residence after the fire, he noticed
several unusual things. Frank testified that all the dresser drawers throughout the house
were open and/or lying on the floor. Although his father’s house was usually very
cluttered and messy, Frank testified that it was abnormal for his father to treat his antique
furniture in such a manner. Frank also noticed that his father’s .357 magnum handgun
was missing from the bedroom drawer where it was usually kept. Frank further noticed
that money and collectible trinkets were missing from his father’s drawers. Frank
additionally noticed that his Father’s gray Chevy Silverado truck was missing from the
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residence. Frank testified that the truck had alternator issues but was drivable to some
extent.
{¶ 33} Continuing, Frank testified that his father always went to his sister’s house
(Frank’s aunt) to celebrate Easter. Frank testified that on April 1, 2018, his father would
have left for his sister’s house around 11:00 a.m. and would have returned home around
1:30 or 2:00 p.m. Frank testified that his father had a normal habit of taking his cell
phone and keys with him wherever he went and that his father only had one set of keys.
Frank testified that it was common for his father to bring leftover food home from his
sister’s Easter celebration. After the fire, Frank testified that, while cleaning his father’s
house, he discovered his father’s plate of Easter leftovers lying on the dining room floor.
{¶ 34} Following the presentation of the evidence, the jury deliberated and found
Albertson guilty of all nine charges in the indictment. The trial court then held a
sentencing hearing, during which the trial court determined that the first six counts in the
indictment, i.e., aggravated burglary, two counts of aggravated arson, two counts of felony
murder, and aggravated robbery, were allied offenses of similar import that merged into
a single conviction. Specifically, the trial court determined that counts two and three
(aggravated arson) merged with counts four and five (felony murder). The trial court
further determined that count one (aggravated burglary) and count six (aggravated
robbery) merged with counts two through five (aggravated arson and felony murder).
The State objected to the trial court’s merger determination and then elected to have
Albertson sentenced on count five, felony murder (aggravated arson/harm to person).
{¶ 35} Following the State’s election, the trial court sentenced Albertson to 15
mandatory years to life in prison for felony murder, 12 months in prison for grand theft of
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a motor vehicle, two years in prison for grand theft of a firearm, and 9 months in prison
for aggravated possession of drugs. All of the prison terms were ordered to be served
concurrently to one another with the exception of the two-year prison term for grand theft
of a firearm, as that prison term was ordered to be served consecutively to all the other
terms. Therefore, the trial court sentenced Albertson to an aggregate term of 17 years
to life in prison. The trial court also ordered Albertson to enroll in the Violent Offender
Registry and the Arson Offender Registry. The trial court waived court costs, but it
ordered Albertson to pay restitution in the amount of $6,347 for Manns’ funeral expenses.
{¶ 36} Albertson now appeals from his conviction, raising four assignments of error
for review. The State has also filed a cross-appeal, raising a single assignment of error
for review.
First Assignment of Error
{¶ 37} Under his first assignment of error, Albertson contends that his trial counsel
rendered ineffective assistance during the hearing on his motion to suppress and during
his jury trial. Specifically, Albertson asserts that his trial counsel was ineffective because
counsel did not: (1) solicit testimony in support of his motion to suppress; (2) challenge
the accuracy of the ignitable-liquid testing performed on his clothing; (3) subpoena Manns’
neighbor, Jack Pelfry, to testify at trial; and (4) sufficiently challenge the credibility of
Dalton’s trial testimony.
{¶ 38} In order to succeed on an ineffective assistance claim, a defendant must
establish: (1) his trial counsel’s performance was deficient; and (2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
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80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a
showing of either deficient performance or prejudice defeats a claim of ineffective
assistance of counsel. Strickland at 697.
{¶ 39} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation. Id.
at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must
indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689. “[A] debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964,
¶ 37 (2d Dist.), citing Strickland at 689.
{¶ 40} To establish prejudice, a defendant must show that there is “a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “An error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment.” Strickland at 691.
1. Failure to Solicit Testimony in Support of Motion to Suppress
{¶ 41} Albertson first claims that his trial counsel performed deficiently because
counsel did not present any testimony at the motion to suppress hearing to: (1) establish
his privacy interest in the Butler Township hotel room; and (2) counter Det. Dingee’s
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testimony that Dalton voluntarily consented to him and the other officers entering the hotel
room. Specifically, Albertson claims that his trial counsel should have called him and
Dalton to testify at the motion to suppress hearing. Albertson believes that his and
Dalton’s testimony would have established both his privacy interest in the hotel room and
the alleged involuntary nature of Dalton’s consent. Albertson also asserts that he and
Dalton were both present at court on the day of the suppression hearing and were
therefore available to testify regarding these matters.
{¶ 42} As a preliminary matter, we note that there is nothing in the record
supporting Albertson’s claim that Dalton was present at court during the suppression
hearing. We also note that since Dalton was Albertson’s co-defendant, Dalton had a
right against self-incrimination under the Fifth Amendment to the United States
Constitution, and therefore could not have been forced to testify on Albertson’s behalf.
State v. Byrd, 8th Dist. Cuyahoga No. 1998 WL 196185, *3 (Apr. 23, 1998).
{¶ 43} In any event, decisions about which witnesses to call are committed to
counsel’s professional judgment. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396,
794 N.E.2d 27, ¶ 127; State v. Thomson, 2d Dist. Clark No. 2018-CA-135, 2020-Ohio-
600, ¶ 11. As a result, such decisions ordinarily constitute matters of trial strategy that
will not be second-guessed by a reviewing court. Thomson at ¶ 11; State v. Koch, 2019-
Ohio-4099, 146 N.E.3d 1238, ¶ 57 (2d Dist.). A decision not to call a particular witness
is “ ‘afforded a presumption of reasonableness,’ and to overcome the presumption, a party
seeking reversal of a conviction on the basis of ineffective assistance of counsel ‘must
establish that the testimony of [that] witness would have significantly assisted the defense
and that the testimony would have affected the outcome of the case.’ ” Thomson at ¶ 11,
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quoting State v. Ramirez, 12th Dist. Clermont No. CA2004-06-046, 2005-Ohio-2662,
¶ 39. (Other citation omitted.)
{¶ 44} Here, counsel may have reasonably decided not to call Albertson at the
suppression hearing in order to prevent the State from cross-examining Albertson on any
inconsistent trial testimony. See State v. Dukes, 4th Dist. Scioto Nos. 16CA3745,
16CA3760, 2017-Ohio-7204, ¶ 56-57 (although statements made by a defendant during
a motion to suppress hearing cannot not be used against him at a later trial to prove his
guilt, they can be used to impeach him). Trial counsel may have decided not to call
Dalton for similar reasons or may have simply believed that Dalton would have refused
to testify by exercising her Fifth Amendment Right against self-incrimination. Therefore,
trial counsel’s decision not to call Albertson and Dalton was a matter of trial strategy that
we presume was reasonable.
{¶ 45} Albertson has not overcome the presumption of reasonableness because
he has not established that either his or Dalton’s testimony would have affected the trial
court’s decision on his motion to suppress. Even if we assume that Albertson and
Dalton’s testimony would have established that Albertson had a privacy interest in the
hotel room (as their trial testimony indicated), this does not change the fact that the trial
court found that the officers lawfully entered the hotel room by virtue of Dalton’s voluntary
consent and subsequently saw incriminating evidence in plain view.
{¶ 46} Although Albertson testified at trial that Dalton let the officers inside the hotel
room after he told her not to, the record indicates that the officers reasonably relied on
Dalton’s apparent authority to consent to their entering the room. “[A] police officer may
reasonably rely upon the apparent authority of the occupant of [a] premises to consent to
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the officer entering upon those premises, in the absence of any indication that the
occupant lacks that authority.” State v. Harris, 2d Dist. Montgomery No. 19479, 2003-
Ohio-2519, ¶ 22. See also State v. Kilgore, 2d Dist. Montgomery No. 18093, 2000 WL
299546, *4 (Mar. 24, 2000) (finding “nothing inappropriate about the police’s entering an
apartment after hearing a voice say ‘come in,’ especially where the officers immediately
identified themselves as police officers and did not try to trick, threaten, or force their way
into the residence.”). It was reasonable for the officers to assume that Dalton had
authority to consent to their entry because Dalton appeared to be an occupant of the room
in that she answered the door, and because she was the person to whom the hotel room
was registered. The officers knew the room was registered to “Nancy Lynn Dalton,” and
they had previously observed pictures of Dalton on Facebook, and thus had some
knowledge of her appearance before they encountered her in the hotel room.
{¶ 47} With regard to the nature of Dalton’s consent, we note that if Albertson and
Dalton had offered the same testimony at the suppression hearing as they did at trial,
their testimony would not have established that Dalton’s consent was involuntary. At
trial, both Dalton and Albertson testified that Dalton allowed the officers inside the hotel
room. Neither Dalton nor Albertson testified that the officers entered the room by force
or coercion. Their testimony also did not indicate that Dalton or Albertson ever withdrew
Dalton’s consent to their entering.
{¶ 48} Even if Albertson and Dalton had offered testimony at the suppression
hearing suggesting that Dalton’s consent was involuntary, the trial court would have been
free to disbelieve their testimony and to rely on Det. Dingee’s, which indicated that Dalton
voluntarily consented to them entering the hotel room. Therefore, it is mere speculation
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to say that the trial court would have ruled differently on the motion to suppress had
Albertson and Dalton testified at the suppression hearing. “It is well established that
mere speculation cannot support either the deficient performance or prejudice
requirement of an ineffective-assistance claim.” State v. Morgan, 2d Dist. Montgomery
No. 27774, 2018-Ohio-3198, ¶ 16, citing State v. Short, 129 Ohio St.3d 360, 2011-Ohio-
3641, 952 N.E.2d 1121, ¶ 119 and State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,
920 N.E.2d 104, ¶ 217.
{¶ 49} Because deciding which witnesses to call is a matter of trial strategy, and
because Albertson has failed to establish that counsel’s failure to have him and Dalton
testify at the suppression hearing would have changed the outcome of the proceeding,
Albertson has not established deficient performance on the part of his trial counsel nor
any resulting prejudice. Therefore, for the reasons outlined above, Albertson’s first
ineffective assistance claim lacks merit.
2. Failure to Challenge Ignitable-Liquid Testing Performed on Albertson’s Clothing
{¶ 50} Albertson next claims that his trial counsel failed to adequately challenge
the ignitable-liquid testing that was performed on his clothing. As previously discussed,
the State Fire Marshal forensic lab expert testified that Albertson’s jacket, jeans, t-shirt,
shoes, socks, and hat all tested positive for a specific class of ignitable liquid known as a
medium petroleum distillate—the same class of ignitable liquid that was found on Manns’
clothing and on multiple items of property that were near the two origin points of the fire.
Albertson claims that his trial counsel was ineffective because he failed to introduce any
evidence or cross-examine any witnesses about the possible contamination of his
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clothing as a result of certain items of clothing being collected and packaged together.
Albertson specifically contends that the video of his interview with Detectives Dingee and
Baranyi shows his clothes being collected in a manner that allowed for contamination.
{¶ 51} Upon review, we find that Albertson’s claim regarding the video of his
interview is unsupported by the record. The video, which was admitted at the
suppression hearing as State’s Exhibit No. 3, simply depicted an officer entering the
interview room where Albertson was located. At the time the officer entered the interview
room, Albertson was fully dressed in his own clothing. The officer later took Albertson
out of the room (off camera) for approximately one minute. When Albertson returned to
the interview room, he was dressed in jail attire. At no point in time did the video show
how Albertson’s clothes were handled or packaged. Accordingly, the video had no
evidentiary value with regard to the packaging or possible contamination of Albertson’s
clothing.
{¶ 52} Albertson’s claim that his trial counsel failed to cross-examine witnesses
about the packaging and possible contamination of his clothing is also unsupported by
the record. Although Albertson’s counsel did not ask the officer who collected
Albertson’s clothing whether he packaged each item of clothing separately, counsel did
question the State Fire Marshal fire investigation expert about how the clothing was
received and packaged. In response to counsel’s questioning, the fire expert testified
that he had received Albertson and Dalton’s clothing from the Montgomery County
Sheriff’s Office and that the sheriff’s office had packaged the clothing in paper. The fire
expert also testified that he had repackaged the clothing in evidence bags in the manner
that the clothing had been received from the sheriff’s office. The fire expert confirmed
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that he had packaged all of Dalton’s clothing together in one bag because that is how the
clothing was received from the sheriff’s office. The fire expert also indicated that he had
packaged Albertson’s socks and hat together in one bag. Trans. Vol. IV, p. 796-797.
{¶ 53} Most importantly, Albertson’s trial counsel asked the fire expert whether it
was appropriate to package multiple items in a single evidence bag. In response, the
fire expert indicated that items are typically not packaged together in order to prevent
contamination. Id. at 796. Albertson’s counsel also questioned the forensic lab expert
about how the clothing was packaged. In response, the lab expert testified that some of
the clothing she received for testing had been placed in the same evidence bag, such as
Albertson’s hat and socks. The lab expert also noted that placing items in the same bag
could lead to contamination between the items. Trans. Vol. V, p. 851-852. Therefore,
for the foregoing reasons, Albertson’s claim that his trial counsel failed to cross-examine
witnesses regarding the possible contamination of his clothing is unsupported by the
record.
{¶ 54} Regardless, the decision to cross-examine witnesses and the extent of such
cross-examination are tactical matters involving trial strategy. State v. Stokes, 2d Dist.
Greene No. 2016-CA-4, 2016-Ohio-7520, ¶ 22; State v. Russell, 2d Dist. Montgomery
No. 21458, 2007-Ohio-137, ¶ 55. As previously noted, “[a] reviewing court may not
second-guess decisions of counsel which can be considered matters of trial strategy.”
State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17
Ohio St.3d 98, 477 N.E.2d 1128 (1985). This holds true even for debatable decisions,
as “[d]ebatable strategic and tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had
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been available.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 55} That said, no matter what questions Albertson believes his counsel should
have asked the witnesses, or what evidence he believes counsel should have offered at
trial, the record collectively indicates that only Albertson’s hat and socks were packaged
together and that Albertson’s other items of clothing were packaged and tested
separately. We note that the ignitable-liquid test results indicated that Albertson’s jacket
tested positive for both a medium-petroleum distillate and gasoline, while Albertson’s
other clothing only tested positive for a medium petroleum distillate. Had the jacket been
packaged with the other items of Albertson’s clothing, gasoline would likely have been
detected on those items of clothing as well. Accordingly, both the testimony and the test
results indicate that a most of Albertson’s clothing was packaged separately. As such,
we fail to see how further questioning or evidence on the topic of contamination from the
packaging would have changed the outcome of trial.
{¶ 56} For the foregoing reasons, Albertson’s second ineffective assistance claim
lacks merit.
3. Failure to Subpoena Jack Pelfry
{¶ 57} For his third ineffective assistance claim, Albertson argues that his trial
counsel was ineffective for failing to subpoena Manns’ neighbor, Jack Pelfry, to testify at
trial. Pelfry was identified as the brother of Pamela Perry, the neighbor who called 9-1-
1 to report the fire at Manns’ residence. Perry briefly testified that she and Pelfry lived
together on Merrimac Avenue. Albertson claims that if Pelfry had been called as a
defense witness, Pelfry would have testified that Manns’ Chevy Silverado truck was
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missing two hours prior to his sister calling 9-1-1. Albertson believes this information
would have refuted the State’s timeline of events because it would have established that
he did not steal Manns’ truck shortly before the fire. Despite this, Albertson claims that
his trial counsel refused to call Pelfry as a defense witness. Albertson maintains that his
trial counsel performed deficiently in that regard, and that said deficient performance
prejudiced him. Albertson’s argument lacks merit.
{¶ 58} Contrary to Albertson’s claim otherwise, Pelfry was subpoenaed to testify
at trial for the defense, but Pelfry did not testify. There is nothing in the record indicating
why Pelfry did not testify, and the record does not contain a proffer of Pelfry’s intended
trial testimony. There is also nothing in the record indicating that Albertson’s trial counsel
refused to allow Pelfry to testify. Therefore, Albertson’s ineffective assistance claim is
based entirely on matters outside the record. “It is well established that ‘[a] claim of
ineffective assistance of counsel cannot be asserted on direct appeal if it relies on matters
outside the record.’ ” State v. Whaley, 2d Dist. Clark No. 2020-CA-15, 2021-Ohio-1434,
¶ 16, quoting State v. Harris, 2d Dist. Montgomery No. 27179, 2017-Ohio-9052, ¶ 19,
citing State v. Thomas, 2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 28. For this
reason, Albertson’s third ineffective assistance claim fails.
{¶ 59} Albertson’s claim also fails because Albertson cannot establish that the
outcome of his trial would have been different had Pelfry appeared at trial and testified
that Manns’ was truck absent from the residence two hours before his sister called 9-1-1.
Two hours before the 9-1-1 call would have been around 1:24 p.m., as Pelfry’s sister
called 9-1-1 at 3:24 p.m. See State’s Exhibit No. 165. Manns’ son testified that Manns
would have returned home from celebrating Easter at his sister’s house around 1:30 or
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2:00 p.m. Therefore, it is entirely possible that Manns’ truck was absent because Manns
had not yet returned home from the Easter celebration. Albertson also admitted at trial
that he was captured on video driving Manns’ truck at 3:07 p.m. on East Nottingham Road
coming from the direction of Merrimac Avenue. Accordingly, based on the foregoing
evidence, Pelfry’s testimony would have done little in the way of refuting the State’s
timeline of events.
{¶ 60} For the foregoing reasons, Albertson’s third ineffective assistance claim
lacks merit.
4. Failure to Challenge Nancy Dalton’s Credibility on Cross-Examination
{¶ 61} For his last ineffective assistance claim, Albertson argues that his trial
counsel failed to adequately attack Dalton’s credibility on cross-examination.
Specifically, Albertson claims that his counsel failed to solicit any testimony concerning
Dalton’s mental health issues. The record indicates that Dalton attempted suicide the
day before Albertson’s original trial date of June 2, 2019, and was hospitalized in the
mental health unit of Miami Valley Hospital for three days. Following that incident,
Albertson’s trial was continued and the trial court held a hearing to ensure that Dalton
was competent to testify. During the competency hearing, Dalton indicated that her
suicide attempt was largely a result of having to testify against Albertson, as she claimed
she still cared about him. The trial court ultimately found that Dalton was competent to
testify and Dalton thereafter testified at Albertson’s rescheduled trial on January 7, 2020.
{¶ 62} While Albertson’s trial counsel chose not to attack Dalton’s credibility based
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on her mental health issues, the record indicates that counsel attacked Dalton’s credibility
in several other respects. For example, counsel cross-examined Dalton concerning her
drug use at the hotel room. Counsel also cross-examined Dalton on the plea agreement
she reached with the State, as Dalton agreed to testify against Albertson in exchange for
only being charged with aggravated possession of drugs, a fifth-degree felony. See
State’s Exhibit No. 190(A). Counsel further cross-examined Dalton regarding the fact
that her daughter and the news exposed her to information about the fire and Manns’
death before she agreed to cooperate with the detectives and tell them her version of
events.
{¶ 63} As previously noted, the extent of counsel’s cross-examination is a matter
of trial strategy that this court will not second guess on appeal. Stokes, 2d Dist. Greene
No. 2016-CA-4, 2016-Ohio-7520, at ¶ 22; Conley, 2015-Ohio-2553, 43 N.E.3d 775, at
¶ 56. We find that counsel’s decision to not question Dalton about her suicide attempt
and mental health issues reasonably fell within the realm of trial strategy and therefore
may not form the basis of an ineffective assistance claim. Counsel may have believed
that inquiring into those topics would have resulted in Dalton gaining sympathy from jurors
or may have made her seem more credible since she contemplated suicide as an
alternative to testifying against Albertson. Regardless of counsel’s reasoning for not
questioning Dalton about her mental health, there is no indication that the outcome of
Albertson’s trial would have been different had counsel questioned Dalton on that topic.
{¶ 64} For the foregoing reasons, Dalton’s fourth ineffective assistance claim lacks
merit.
{¶ 65} Having found that all four of Dalton’s ineffective assistance claims lack
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merit, Dalton’s first assignment of error is overruled.
Second Assignment of Error
{¶ 66} Under his second assignment of error, Albertson contends that his
convictions for aggravated burglary, aggravated arson, felony murder, and aggravated
robbery were not supported by sufficient evidence and were against the manifest weight
of the evidence. We disagree.
{¶ 67} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.{¶ 68} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction was against the manifest weight of the evidence, the appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider
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witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61,
2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 69} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. A judgment of conviction
should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin at 175.
1. Aggravated Burglary
{¶ 70} As previously noted, Albertson is challenging his conviction for aggravated
burglary in violation of R.C. 2911.11(A)(1). That statute provides: “No person, by force,
stealth, or deception, shall trespass in an occupied structure * * * when another person
other than an accomplice of the offender is present, with purpose to commit in the
structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens
to inflict physical harm on another.” R.C. 2911.11(A)(1). “ ‘Physical harm to persons’
means any injury, illness, or other physiological impairment, regardless of its gravity or
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duration.” R.C. 2901.01(A)(3).
{¶ 71} In this case, Albertson admits that he trespassed in Manns’ house and
committed the offense of theft. Thus, Albertson concedes that the trespass and criminal
offense elements of aggravated burglary have been satisfied. Albertson does not
specifically challenge the element requiring another person, i.e., Manns, to be present in
the residence during the trespass. However, even if Albertson had challenged the
presence element, we would find that it was supported by sufficient evidence.
{¶ 72} The evidence established that Manns never left his home without his keys
or cell phone, and that both of those items were inside the residence and taken by
Albertson. The State also presented evidence establishing that Manns would have
returned home from celebrating Easter at his sister’s house around 1:30 or 2:00 p.m., and
that Albertson was captured on video driving Manns’ truck from the direction of Manns’
residence at 3:07 p.m. The timing of the video and the fact that Albertson was able to
steal Manns’ keys and cell phone indicate that Manns would have been home at the time
Albertson trespassed.
{¶ 73} The State also presented evidence establishing that Manns’ plate of Easter
leftovers was lying on the dining room floor. This indicates that Manns had returned
home from celebrating Easter at his sister’s residence. It is also significant that Manns’
was discovered unresponsive in the basement approximately 30 minutes after Albertson
left the area. When viewing all this evidence in a light most favorable to the State, a
rational factfinder could have reasonably concluded that Manns was present inside the
residence at the time Albertson trespassed.
{¶ 74} Albertson nevertheless contends that the State failed to present evidence
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establishing that he used force, stealth, or deception to trespass into the victim’s home.
“ ‘Force’ * * * ‘means any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing.’ ” State v. Brock, 2d Dist. Clark No. 2018-CA-
112, 2019-Ohio-3195, ¶ 24, quoting R.C. 2901.01(A)(1). “[T]he requirement of ‘force’ is
satisfied by ‘any effort physically exerted.’ ” Id., quoting State v. Hudson, 2018-Ohio-
423, 106 N.E.3d 205, ¶ 16 (2d Dist.) and State v. Johnson, 2d Dist. Montgomery No.
26961, 2017-Ohio-5498, ¶ 21. For example, opening an unlocked screen door and
walking through an open interior door is sufficient to establish entry by force. State v.
Cantrell, 2d Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶ 12. See also State v.
McWilliams, 2d Dist. Greene No. 2000-CA-89, 2001 WL 1203395, *3 (Oct. 12, 2001) (“In
Ohio, opening a closed but unlocked door amounts to sufficient force to prove the element
of force in the offense of Burglary”); State v. Ford, 2d Dist. Montgomery No. 15374, 1996
WL 257442, *2 (May 17, 1996) (“[t]he effort necessary to open a door, locked or unlocked,
is sufficient to satisfy the element of ‘force’ necessary to prove burglary”).
{¶ 75} Here, Albertson testified that he was initially inside the vacant house next
door to Manns’ residence when he suddenly “heard a big bang outside.” Trans. Vol. V,
p. 940. Albertson testified that he “jumped up, looked out the window,” and saw the front
screen door to Manns’ house “smacking back and forth.” Id. Albertson testified that he
then went to Manns’ porch and observed that the front door was wide open. Thereafter,
Albertson testified that he went inside the open front door. Albertson never testified that
the exterior screen door was wide open as well.
{¶ 76} The photographic evidence of Manns’ front doorway confirms that Manns’
home had a main interior door and exterior screen door. See State’s Exhibit Nos. 1-2,
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and 14. The fact that Albertson saw the screen door smacking back and forth indicates
that the screen door would not have remained open on its own. This is supported by
photographic evidence showing a chair holding the screen door open. See State’s
Exhibit Nos. 2 and 14. Therefore, Albertson’s testimony and the photographic evidence
of Manns’ doorway indicate that Albertson would have had to physically exert some force
to open the screen door before walking through the allegedly open interior front door.
Therefore, when considering the foregoing evidence in a light most favorable to the State,
a rational factfinder could have reasonably concluded that the required element of force
was satisfied. As a result, we find that the evidence presented at trial was sufficient to
establish this element of aggravated burglary.
{¶ 77} Albertson also contends that the State failed to present evidence
establishing that he inflicted or attempted to inflict physical harm on Manns. As
previously noted, “ ‘[p]hysical harm to persons’ means any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).
The evidence presented at trial established that Manns’ son, Frank, found Manns’ plate
of Easter leftovers on the dining room floor. The evidence also established that Manns’
body was found lying on the basement floor. From this evidence, a reasonable factfinder
could conclude that Albertson encountered Manns in the dining room and possibly forced
Manns into the basement. The coroner also testified that Manns had a bruise on his
right arm that was inflicted sometime prior to his death and a cut on his left hand that may
or may not have been inflicted prior to his death. Most significantly, Dalton testified that
Albertson made comments to her indicating that he hit the person he the stole the property
from, i.e., Manns. As discussed more fully below, the evidence also establishes that
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Albertson started a fire inside Manns’ residence, which caused Manns to inhale products
of combustion and die. Therefore, when considering the foregoing evidence in a light
most favorable to the State, a rational factfinder could have reasonably concluded that
Albertson inflicted physical harm on Manns.
{¶ 78} For the foregoing reasons, we find that the State presented sufficient
evidence on all the elements of aggravated burglary. Also, after weighing all the
evidence and reasonable inferences, we do not find that the jury clearly lost its way and
created a manifest miscarriage of justice in finding Albertson guilty of aggravated
burglary.
2. Aggravated Arson
{¶ 79} Albertson is also challenging his convictions for two counts of aggravated
arson—one count in violation of R.C. 2909.02(A)(1), and the other count in violation of
R.C. 2902.02(A)(2). Those statutory provisions provide that: “No person, by means of
fire or explosion, shall knowingly * * * (1) Create a substantial risk of serious physical
harm to any person other than the offender; [or] (2) Cause physical harm to any occupied
structure[.]” R.C. 2909.02(A)(1)-(2).
{¶ 80} Albertson does not dispute that the fire at issue resulted in serious, physical
harm to Manns and physical harm to Manns’ residence. Rather, in challenging his
convictions for arson, Albertson maintains that the State failed to present sufficient
evidence establishing that he was the individual who started the fire. Albertson claims
that the only evidence indicating that he started the fire was circumstantial. “It is,
however, well-settled under Ohio law that a defendant may be convicted solely on the
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basis of circumstantial evidence.” (Citations omitted.) State v. Nicely, 39 Ohio St.3d
147, 151, 529 N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence
inherently possess the same probative value.” State v. Brown, 2017-Ohio-8416, 99
N.E.3d 1135, ¶ 40, citing State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).
{¶ 81} In this case, there was ample circumstantial evidence indicating that
Albertson started the fire at Manns’ residence. There is no dispute that Albertson was
present at Manns’ residence on the day of the fire, as Albertson admitted to going inside
Manns’ residence on April 1, 2018, and stealing property therein. Albertson also
admitted that he was the person shown on the video driving Manns’ truck from the
direction of Manns’ residence at 3:07 p.m., which was just 17 minutes before Manns’
neighbor called 9-1-1 to report smoke coming from Manns’ residence. The fact that
Albertson was coming from the area of Manns’ residence shortly before the victim’s
neighbor saw smoke coming from the victim’s home tends to indicate that Albertson was
present at the time the fire started.
{¶ 82} Additionally, the State Fire Marshal fire investigation expert testified that the
fire was not an accident, but an intentional human act. Testing performed by the State
Fire Marshal forensic lab expert also established that Manns’ clothing and items of
property that were near the two origin points of the fire tested positive for a medium
petroleum distillate. Significantly, all of Albertson’s clothing also tested positive for a
medium petroleum distillate. The forensic lab expert explained that a medium petroleum
distillate includes substances such as paint thinners. The fire investigation expert
testified, and the photographic evidence established, that a bottle of paint thinner was
found near one of the origin points of the fire. See State’s Exhibit Nos. 28 and 29 and
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173(A); Trans. Vol. IV, p. 764-765. Dalton also testified that Albertson mentioned
“something about a paint can blew a door open.” Trans. Vol. III, p. 413. This statement
is consistent with photographic evidence showing paint cans located throughout Manns’
basement, see State’s Exhibit Nos. 24 and 173(A), and it also indicates that Albertson
witnessed some kind of explosion in the residence.
{¶ 83} When considering the foregoing evidence in a light most favorable to the
State, a rational factfinder could reasonably conclude that Albertson was the individual
who started the fire at the victim’s residence. Therefore, we find that there was sufficient
evidence presented at trial to support Albertson’s conviction for aggravated arson.
{¶ 84} As to the weight of the evidence, Albertson challenges the validity of the
ignitable-liquid test results on the basis of contamination due to items of his clothing being
packaged together. However, as previously discussed, the record indicates that only
Albertson’s hat and socks were packaged together. The evidence establishes that
Albertson’s jacket, t-shirt, jeans, and shoes were all packaged and tested separately.
But regardless of how Albertson’s hat and socks were packaged, the fact remains that all
of Albertson’s clothing tested positive for the exact same class of ignitable liquid that was
found on Manns’ clothes and the property that was located near the origin points of the
fire.
{¶ 85} Although Albertson testified that he had been wearing the same clothing for
a week, no specific evidence was presented at trial to indicate that Albertson had engaged
in an activity prior to the fire that would have exposed all of his clothing to a medium
petroleum distillate. We note that the forensic lab expert testified that gasoline is not a
medium petroleum distillate; accordingly, the medium petroleum distillate on Albertson’s
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clothes would not have come from Albertson being at a gas station or pumping gas. The
expert also testified that a medium petroleum distillate is not present in the glue that is
found in shoes. Moreover, there is nothing in the record indicating that Albertson’s
clothes were exposed to a medium petroleum distillate while he was under the hood of
Manns’ truck trying to get it to start. Albertson never testified to coming into contact with
any fluid from the vehicle, let alone a fluid that qualifies as a medium petroleum distillate.
{¶ 86} Albertson also challenges the credibility of Dalton’s testimony concerning
his statement about the paint can blowing a door open. However, “ ‘the jury was free to
believe, or disbelieve, any part of the witnesses’ testimony, and a conviction is not against
the manifest weight of the evidence merely because the jury believed the prosecution’s
testimony.’ ” (Citation omitted.) State v. Pheanis, 2d Dist. Montgomery No. 26560,
2015-Ohio-5015, ¶ 36, quoting State v. Arega, 2012-Ohio-5774, 983 N.E.2d 863, ¶ 30
(10th Dist.). The fact that the jury found Dalton’s testimony credible regarding
Albertson’s statements does not mean that Albertson’s conviction was against the
manifest weight of the evidence. Therefore, after weighing all the evidence, we cannot
say that the jury lost its way or created a manifest miscarriage of justice by finding
Albertson guilty of aggravated arson. Accordingly, in addition to being supported by
sufficient evidence, Albertson’s conviction for both counts of aggravated arson was also
not against the manifest weight of the evidence.
3. Felony Murder
{¶ 87} Albertson next challenges his conviction for two counts of felony murder,
both in violation of R.C. 2903.02(B). That statue provides: “No person shall cause the
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death of another as a proximate result of the offender’s committing or attempting to
commit an offense of violence that is a felony of the first or second degree and that is not
a violation of section 2903.03 or 2903.04 of the Revised Code.” The term “offense of
violence” as used in the Ohio Revised Code is statutorily defined as including, among
other things, aggravated arson in violation of R.C. 2909.02. R.C. 2901.01(A)(9)(a); State
v. Woogerd, 10th Dist. Franklin No. 05AP-45, 2007-Ohio-1518, ¶ 29
{¶ 88} In this case, Albertson’s felony murder convictions are predicated on his two
aggravated arson offenses, which are felonies of the first- and second-degree. Albertson
does not dispute that the fire at issue proximately caused Manns’ death. Rather,
Albertson contends that the State failed to provide sufficient evidence establishing that
he committed the predicate aggravated arson offenses. However, for the reasons
discussed above, we find that the State presented sufficient evidence establishing that
Albertson committed both counts of aggravated arson. Therefore, because we have
already determined that the two predicate offenses of aggravated arson were supported
by sufficient evidence and were not against the manifest weight of the evidence,
Albertson’s two felony murder offenses are likewise supported by sufficient evidence and
not against the manifest weight of the evidence.
4. Aggravated Robbery
{¶ 89} Lastly, Albertson is challenging his conviction for one count of aggravated
robbery in violation of R.C. 2911.01(A)(3). That statute provides: “No person, in
attempting or committing a theft offense, as defined in section 2913.01 of the Revised
Code, or in fleeing immediately after the attempt or offense, shall * * * [i]nflict, or attempt
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to inflict, serious physical harm on another.” R.C. 2911.01(A)(3). “Serious physical
harm to persons” includes “[a]ny physical harm that carries a substantial risk of death[.]”
R.C. 2901.01(A)(5)(b).
{¶ 90} In this case, Albertson concedes that he committed the offense of theft by
stealing money and personal property from Manns’ residence. Albertson, however,
argues that the State failed to present sufficient evidence establishing that he inflicted
serious, physical harm on Manns during the theft. Specifically, Albertson claims that
there was insufficient evidence to prove that he started the fire that caused Manns’ death.
However, as noted above, we have already determined that the State presented sufficient
evidence to establish that Albertson started the fire at Manns’ residence. Upon review,
we also find that the State presented sufficient evidence to establish that the fire set by
Albertson caused serious, physical harm to Manns, as it resulted in his death. The
coroner testified to a reasonable degree of scientific certainty that Manns died as a result
of inhaling products of combustion from the fire. Therefore, the evidence sufficiently
establishes that Albertson inflicted serious, physical harm on Manns when Albertson set
fire to Manns’ basement in the course of committing theft and/or fleeing thereafter.
{¶ 91} For the foregoing reasons, we find that the State presented sufficient
evidence on all the elements of aggravated robbery. Also, after weighing all the
evidence and reasonable inferences, we do not find that the jury clearly lost its way and
created a manifest miscarriage of justice in finding Albertson guilty of aggravated robbery.
{¶ 92} Because all of Albertson’s sufficiency and manifest weight claims lack merit,
his second assignment of error is overruled.
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Third Assignment of Error and State’s Cross-Appeal
{¶ 93} Under his third assignment of error, Albertson claims that the trial court
erred by failing to merge his grand theft of a firearm offense with his aggravated burglary
and aggravated robbery offenses. 1 Because the trial court merged the aggravated
burglary and aggravated robbery offenses into the aggravated arson and felony murder
offenses, Albertson essentially claims that his grand theft of a firearm offense should have
merged with the first six counts in the indictment. On cross-appeal, the State claims that
the trial court erred by merging Albertson’s aggravated burglary and aggravated robbery
offenses with the aggravated arson and felony murder offenses. Because all the
foregoing claims involve the issue of merging allied offenses, we will consider them
together.
{¶ 94} R.C. 2941.25 governs allied offenses, and it provides that: “Where the same
conduct by [a] 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.” R.C. 2941.25(A). The statute also
provides that: “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
1 Albertson also argued that the trial court erred by ordering the prison term for grand
theft of a firearm to run consecutively to the prison term for felony murder. Albertson,
however, withdrew that argument and conceded that if this court determines his grand
theft of a firearm offense does not merge with the other offenses, that R.C. 2929.14(C)(3)
requires the prison term for grand theft of a firearm to be served consecutively to any
other prison term.
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of all of them.” R.C. 2941.25(B).
{¶ 95} “ ‘[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 427, 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). An appellate
court applies “a de novo standard of review in reviewing a trial court’s R.C. 2941.25
merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 28.
{¶ 96} “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.” State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. “ ‘[W]hen determining whether
offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts
must ask three questions * * *: (1) Were the offenses dissimilar in import or significance?
(2) Were they committed separately? and (3) Were they committed with separate animus
or motivation?’ ” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,
¶ 12, quoting Ruff at ¶ 31. “ ‘An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be considered.’ ”
Id.{¶ 97} As to import or significance, offenses are of dissimilar import 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 at ¶ 23. Therefore, “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
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offense is separate and identifiable from the harm of the other offense.” Id. at ¶ 26.
“The evidence at trial or during a plea or sentencing hearing will reveal whether the
offenses have similar import.” Id.
{¶ 98} With regard to animus, “ ‘[w]here an individual’s immediate motive involves
the commission of one offense, but in the course of committing that crime he must, [a]
priori, commit another, then he may well possess but a single animus, and in that event
may be convicted of only one crime.’ ” State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542,
¶ 70 (2d Dist.), quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).
In other words, “[i]f the defendant acted with the same purpose, intent, or motive in both
instances, the animus is identical for both offenses.” State v. Hudson, 2013-Ohio-2351,
993 N.E.2d 443, ¶ 54 (2d Dist.), quoting State v. Lewis, 12th Dist. Clinton No. CA2008-
10-045, 2012-Ohio-885, ¶ 13.
{¶ 99} For purposes of clarity, we will first discuss the allied offense arguments
raised in the State’s cross-appeal and then address the argument raised by Albertson in
his third assignment of error.
1. Aggravated Robbery
{¶ 100} As previously noted, the State’s cross-appeal challenges in part the trial
court’s decision to merge the aggravated robbery offense with the aggravated arson and
felony murder offenses. The evidence presented at trial indicates that the aggravated
robbery offense was completed when Albertson set fire to Manns’ residence while in the
course of stealing from Manns and/or fleeing from Manns’ residence. Albertson’s act of
setting the fire was the source of the victim’s serious physical harm that was necessary
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for an aggravated robbery conviction. Therefore, the aggravated robbery offense was
inextricably intertwined with Albertson setting the fire. This indicates that the aggravated
robbery offense arose from the same conduct as the aggravated arson and felony murder
offenses, as the felony murder offenses were predicated on Albertson committing
aggravated arson.
{¶ 101} The evidence presented at trial also indicates that Albertson set the fire in
order to facilitate his theft of Manns’ property and/or his escape from Manns’ residence.
That immediate motive involved Albertson committing not only aggravated robbery, but
aggravated arson and felony murder as well. Therefore, Albertson possessed a single
animus when committing those three offenses.
{¶ 102} The resulting harm caused by the aggravated robbery, aggravated arson,
and felony murder offenses was also alike in that each offense involved harm that resulted
from the fire, i.e., Manns dying from inhaling products of combustion and fire damage to
Manns’ residence and property. We have noted that “ ‘where the conduct that
constitutes one offense causes a harm that is not separate and identifiable from the harm
caused by the aggravating element of another offense, then the offenses are of a similar
import.’ ” State v. Ramey, 2d Dist. Montgomery No. 27636, 2018-Ohio-3072, ¶ 20,
quoting State v. Ruff, 1st Dist. Hamilton Nos. C-120533, C-120534, 2015-Ohio-3367, ¶ 18
(“Ruff II”).
{¶ 103} In Ruff II, the First District Court of Appeals analyzed the Supreme Court
of Ohio’s decision in Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (“Ruff I”)
and stated the following:
The state argued in the Supreme Court—as it does here—that rape
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and aggravated burglary are of dissimilar import because rape is a sexually
oriented offense while burglary is about trespass into structures. Under
this logic, aggravated burglary would always have a dissimilar import from
rape or any other act of violence constituting the “aggravating factor,”
because aggravated burglary always involves a separately identifiable harm
in the intrusion into a dwelling. The [Supreme Court] in Ruff [I], however,
specifically rejected this analysis: it “decline[d] to create an absolute rule
based upon the definition of the offenses.” Ruff, [143 Ohio St.3d 114,]
2015-Ohio-995, [34 N.E.3d 892], at ¶ 26.
If there only needed to be one harm that was separate and
identifiable, then rape and aggravated burglary could never merge because
aggravated burglary will always involve the “separate and identifiable” harm
caused by the intrusion into the dwelling. The same would be true of
assault or any other crime constituting the aggravating element of physical
harm for aggravated burglary. Thus, implicit in its rejection of a categorical
rule and remand to this court is the idea that the offenses are of similar
import when the harm caused by one crime is the same harm that is
the aggravating circumstance of another crime.
(Emphasis added.) Ruff II at ¶ 15-16.
{¶ 104} Relying on Ruff II, we held in Ramey that the trial court erred by failing to
merge Ramey’s felony murder and aggravated burglary offenses because “Ramey’s
conduct constituting one offense ( * * * murder as a proximate cause of felonious assault),
caused a harm that is not separate and identifiable from the harm caused by the
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aggravating element of another offense (aggravated burglary).” Ramey at ¶ 21. This is
because “[w]ithout the physical harm caused by the felonious assault, the burglary would
not have had the aggravating element of inflicting physical harm.” Id.{¶ 105} In the present case, the aggravating element of Albertson’s aggravated
robbery offense is the serious physical harm that Manns suffered as a result of the fire,
i.e., death from inhaling products of combustion. This is the same harm that resulted
from the aggravated arson and felony murder offenses. Without the serious physical
harm caused by the aggravated arson and felony murder, the aggravated robbery would
not have had the aggravating element of inflicting serious physical harm. This indicates
that the aggravated robbery, aggravated arson, and felony murder offenses all had a
similar import.
{¶ 106} Because the conduct, animus, and import of the aggravated robbery,
aggravated arson, and felony murder offenses were the same, those offenses were
properly merged at sentencing.
2. Aggravated Burglary
{¶ 107} The State’s cross-appeal also challenges the trial court’s decision to
merge the aggravated burglary offense with the aggravated arson and felony murder
offenses. Unlike the aggravated robbery, the evidence presented at trial indicates that
Albertson’s commission of the aggravated burglary was not dependent on Albertson
setting Manns’ basement on fire.
{¶ 108} As previously discussed, Manns’ plate of Easter leftovers was discovered
on the dining room floor whereas Manns’ body was found lying on the basement floor.
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From this evidence, a reasonable factfinder could conclude that Albertson encountered
Manns in the dining room and either forced or told Manns to go down to the basement.
Manns’ body also had bruising on his right arm that was inflicted sometime prior to his
death and a cut on his left hand that may or may not have been inflicted prior to his death.
Most significantly, Dalton testified that Albertson made comments to her indicating that
he hit Manns during their encounter.
{¶ 109} The foregoing evidence indicates that there was a physical altercation
between Albertson and Manns during which Albertson inflicted physical harm on Manns
that was separate from the serious, physical harm that he inflicted by causing the fire.
The fire was not necessary for Albertson’s commission of the aggravated burglary
because the aggravated burglary was completed once Albertson physically harmed/hit
Manns while in the course of trespassing in Manns’ residence. Therefore, the
aggravated burglary was committed by conduct that was separate from the conduct that
Albertson engaged in when committing aggravated arson and felony murder, i.e., setting
the fire. That separate conduct also resulted in separate physical harm. Because the
aggravated burglary was committed by separate conduct and resulted in separate harm,
the trial court erred in merging Albertson’s aggravated burglary offense with his
aggravated arson and felony murder offenses.
3. Grand Theft of Firearm
{¶ 110} Under his third assignment of error, Albertson argues that the grand theft
of a firearm offense should have merged with the aggravated burglary and aggravated
robbery offenses. We disagree because the record indicates that the resulting harm is
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different for each of those offenses. The harm flowing from grand theft of a firearm was
simply Albertson depriving Manns of his .357 magnum handgun. The harm flowing from
the aggravated burglary offense included Albertson invading the sanctity of Manns’ home
and physically injuring Manns by striking him and possibly forcing him in the basement.
The harm flowing from the aggravated robbery included not only the loss of Manns’
property, but more significantly, the serious, physical harm that Manns suffered and died
from as a result of Albertson setting a fire to Manns’ residence. Therefore, because the
harm from each offense was separate and identifiable, the offenses were of dissimilar
import and should not have merged.
{¶ 111} For the foregoing reasons, Albertson’s third assignment of error is
overruled and the State’s sole assignment of error on cross-appeal is overruled in part
and sustained in part.
Fourth Assignment of Error
{¶ 112} Under his fourth assignment of error, Albertson contends that the trial court
erred by imposing $6,347 in restitution at sentencing without properly considering his
present and future ability to pay as required by R.C. 2929.19(B)(5). Albertson contends
that his sentence of 17 years to life in prison indicates that he has no present or future
ability to pay the restitution imposed. Albertson’s claim lacks merit.
{¶ 113} Pursuant to R.C. 2929.18(A)(1), the trial court at sentencing may order an
offender to pay restitution “to the victim of the offender’s crime or any survivor of the
victim, in an amount based on the victim’s economic loss.” It is well established that
“[b]efore imposing a financial sanction under section 2929.18 of the Revised Code * * *,
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the court shall consider the offender’s present and future ability to pay the amount of the
sanction or fine.” R.C. 2929.19(B)(5). In doing so, “[t]he trial court does not need to
hold a hearing on the issue of financial sanctions, and there are no express factors that
the court must take into consideration or make on the record.” (Citation omitted.) State
v. Culver, 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.) “A
trial court need not even state that it considered an offender’s ability to pay.” State v.
Russell, 2d Dist. Montgomery No. 23454, 2010-Ohio-4765, ¶ 62, citing State v. Parker,
2d Dist. Champaign No. 2003-CA-17, 2004-Ohio-1313, ¶ 42.
{¶ 114} “The record should, however, contain ‘evidence that the trial court
considered the offender’s present and future ability to pay before imposing the sanction
of restitution.’ ” Culver at ¶ 57, quoting State v. Robinson, 3d Dist. Hancock No. 5-04-12,
2004-Ohio-5346, ¶ 17. “The trial court may comply with [this] obligation by considering
a presentence investigation report (‘PSI’), which includes information about the
defendant’s age, health, education, and work history.” (Citation omitted.) State v.
Willis, 2d Dist. Montgomery No. 24477, 2012-Ohio-294, ¶ 4.
{¶ 115} In this case, the trial court did not impose any fines and waived court costs
at sentencing, but ordered Albertson to pay $6,347 in restitution for Manns’ funeral
expenses. In doing so, the trial court stated on the record that although Albertson had a
lengthy prison sentence, the court had examined Albertson’s physical and mental health,
his prior work experience, and his education, and determined that Albertson had a future
ability to pay the victim’s funeral bill. Trans. Vol. VI, p. 1143.
{¶ 116} The trial court also stated that it had considered the information in
Albertson’s PSI report. The PSI indicated that at the time of sentencing, Albertson was
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50 years old with 666 days of jail-time credit. The PSI also indicated that Albertson
reported graduating from high school in 1987 and being self-employed for the past three
years in the field of home improvement work. Prior to being self-employed, Albertson
reported working for J.B. Construction, Dayton Plastics, Schneider Landscaping, and
Fugimo Construction. Albertson also reported being in good physical health.
{¶ 117} Albertson cites State v. Phillips, 2d Dist. Montgomery No. 23252, 2009-
Ohio-5305, for the proposition that receiving a life sentence indicates that a defendant
has no present or future ability to pay a financial sanction. In Phillips, we found that a
defendant who was sentenced to “two consecutive life sentences without eligibility for
parole” had no present or future ability to pay court costs. Id. at ¶ 16. The present
case, however, is distinguishable from Phillips, as Albertson is eligible for parole and is
serving 17 years to life in prison, not two consecutive life terms.
{¶ 118} Because Phillips is distinguishable, and because the record indicates that
the trial court considered Albertson’s present and future ability to pay restitution,
Albertson’s fourth assignment of error is overruled.
Conclusion
{¶ 119} Having overruled all of Albertson’s assignments of error and sustained in
part the State’s sole assignment of error on cross-appeal, the judgment of the trial court
is affirmed in part, reversed in part, and remanded to the trial court for the sole purpose
of resentencing Albertson. At the resentencing hearing, the trial court shall impose
separate sentences for aggravated burglary and grand theft of a firearm, as those
offenses do not merge with any other offenses. The aggravated robbery, aggravated
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arson, and felony murder offenses shall remain merged.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Sara M. Barry
Hon. Timothy N. O’Connell