State v. Brewer, 2012 Ohio 3899

William Brewer Jr. was indicted in Wyandot County on three felonies: breaking and entering (R.C. 2911.13(A)), theft (R.C. 2913.02(A)(1)), and possession of criminal tools (R.C. 2923.24(A)).
He initially pled not guilty; a continuance was granted and speedy-trial time was waived.
Brewer’s first attorney conducted discovery and surveillance-video review prior to trial; Brewer later obtained new counsel.
The State amended Count Two’s theft value from $500 to $1,000 and altered the stolen-value totals for cigarettes.
Brewer was convicted on all counts after a jury trial in November 2011; he received concurrent 11-month terms, plus an additional 12-month term for a post-release-control violation, to be served consecutively for a total of 45 months.
Brewer appeals raising ineffective assistance of counsel, issues on valuation of stolen property, admissibility of prior-conviction evidence, and whether offenses should merge for sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance from trial counsel regarding evidence review	Brewer argues surveillance video was not shown to him before trial.	Brewer contends counsel failed to show key evidence; prejudice possible.	No deficient performance or prejudice shown; evidence review was provided and no reasonable probability of Plea difference.
Sufficiency of evidence for theft value over $1,000	State must prove stolen value exceeded $1,000, excluding taxes per Adams.	Value attributed to cigarettes, including taxes, improperly inflated the amount.	Sufficient evidence supported value over $1,000; excise taxes differ from sales tax and do not render value improper.
Admissibility of Brewer's 2008 prior conviction under 404(B) for identity	Evidence shows a unique, identifiable plan linking to current offense.	Evidence of prior crimes is improper to establish identity.	Not an abuse of discretion; prior act supports identity under 404(B) given distinctive MO.
Merger of allied offenses for sentencing	All offenses arising from single transaction should merge under 2941.25.	Some offenses have separate animus; not all should merge.	Theft and breaking & entering are not allied offenses; possession of tools has separate animus from theft; no merger; convictions affirmed.

State v. Kole, 92 Ohio St.3d 303 (Ohio 2001) (ineffective assistance framework under Strickland)
State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (presumption of competent representation; reasonable-professional-judgment standard)
State v. Lytle, 48 Ohio St.2d 391 (Ohio 1976) (strong presumption of effective representation; judgment on trial strategy)
State v. Sallie, 81 Ohio St.3d 673 (Ohio 1998) (tactical decisions; prejudice must be shown)
State v. Frazier, 61 Ohio St.3d 247 (Ohio 1991) (trial strategy; ineffective-assistance standard)
State v. Adams, 39 Ohio St.3d 186 (Ohio 1988) (tax rules for value of stolen property; uniform operation considerations)
State v. Jamison, 49 Ohio St.3d 137 (Ohio 1990) (evidence 404(B) for identity requires common features or modus operandi)
State v. Lowe, 69 Ohio St.3d 527 (Ohio 1994) (modus operandi and identity theory under 404(B))