State v. HallerState v. Haller
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-Appellant, Ronald Haller, appeals the judgment of the Court of Common Pleas of Allen County finding him guilty of three counts of complicity to commit aggravated burglary, three counts of complicity to commit aggravated robbery, three counts of complicity to commit abduction, two counts of complicity to commit burglary, two counts of complicity to commit grand theft, and one count of receiving stolen property, and sentencing him to an aggregate prison term of thirty-one years. On appeal, Haller contends that the verdict forms for Counts X and XII were insufficient under
{¶2} This matter stems from a series of burglaries that occurred at five separate residences in Allen County between November 2008 and May 2010. Each burglary was committed by an individual named Benny Woolwine (“Woolwine“). The first burglary occurred on November 5, 2008 at a residence on
{¶3} On October 14, 2010, the Allen County Grand Jury returned a fifteen count indictment against Haller. As to the Amherst Burglary, Haller was charged as follows: Count I, complicity to commit aggravated burglary in violation of
{¶4} On October 18, 2010, Haller entered pleas of not guilty to all counts in the indictment.
{¶5} On April 11, 2011, the matter proceeded to a jury trial. Prior to trial, the State dismissed Count VII. On April 15, 2011, the jury returned guilty verdicts on all remaining counts and specifications. On May 19, 2011, the matter proceeded to sentencing. As to the Amherst Burglary, the trial court sentenced Haller to a six-year prison term on Count I, a six-year prison term on Count II, and a mandatory three-year prison term on the firearm specification, and ordered Counts I and II be served concurrently to each other, but consecutively to the
{¶6} It is from this judgment Haller appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED BY ENTERING A JUDGMENT OF CONVICTION AS TO COUNTS XI AND XII (BURGLARY) AS FELONIES OF THE SECOND DEGREE, AND SENTENCING ACCORDINGLY, AS THE VERDICT FORMS WERE SUFFICIENT AS TO EACH ONLY FOR THE LESSER OFFENSES OF BURGLARY, FELONIES OF THE FOURTH DEGREE.
Assignment of Error No. II
MR. HALLER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, NOTICE, DUE PROCESS, AND PROOF BEYOND A REASONABLE DOUBT WHEN THE TRIAL COURT REFUSED TO MERGE COUNTS XI, XII, AND XV TOGETHER AND COUNTS XIII AND XIV TOGETHER AS ALLIED OFFENSES OF SIMILAR IMPORT.
Assignment of Error No. III
THE TRIAL COURT ERRED BY NOT DECLARING
THE TRIAL COURT ERRED BY IMPOSING MULTIPLE SENTENCES FOR THE SAME ACT, IN VIOLATION OF
Assignment of Error No. V
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON COMPLICITY.
Assignment of Error No. VI
MR. HALLER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO OBJECT TO MISLEADING AND INCOMPLETE JURY INSTRUCTIONS AS TO COMPLICITY.
Assignment of Error No. VII
THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶7} Due to the nature of Haller‘s assignments of error, we elect to address the assignments out of order and combine the assignments where appropriate.
Assignment of Error No. VII
{¶8} In his seventh assignment of error, Haller contends that the jury‘s verdicts were against the manifest weight of the evidence. Specifically, Haller argues that the evidence adduced at trial establishes that he was, at most, an accessory after the fact, not an accomplice to the crimes committed by Woolwine. We disagree.
{¶10} Initially, we note that Haller‘s contention challenging the manifest weight of the evidence extends only to the issue of complicity. Haller does not dispute the occurrence of the burglaries or the offenses that occurred in conjunction with the burglaries. Accordingly, our analysis will focus on whether the fact finder lost its way in determining whether Haller aided and/or abetted Woolwine in committing the burglaries.
{¶11}
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
* * *
(2) Aid or abet another in committing the offense[.]
{¶12} “To support a conviction for complicity by aiding and abetting pursuant to
{¶13} According to the testimony adduced at trial, Woolwine, a convicted felon, moved to Ohio in 2007. In May 2008, Woolwine moved to Lima to live with a friend. Woolwine testified that prior to May 2008, he had never been to Lima nor was he familiar with the areas surrounding Lima. Shortly after Woolwine arrived in Lima, there was a fire at a rental property that Haller oversaw as landlord. When Haller responded to the fire, he met Woolwine at the property.
Ottawa Burglary
{¶14} Todd Lhamon (“Lhamon“) testified that he resided at the Ottawa Road residence when it was burglarized on November 5, 2008. Lhamon testified that prior to the burglary he owned and operated a business in Lima that sold all-terrain vehicles, boats, jet skis, and lawn mowers. Lhamon testified that in 2002 he decided to sell his business and that Haller was interested in purchasing the business. Lhamon explained that in order to purchase the business each of the manufacturers that sold their products through the business had to approve the sale. Lhamon testified that prior to closing his business Haller had visited his Ottawa Road residence on several occasions to discuss the business. Lhamon testified that despite Haller‘s interest in the business one of the manufacturers did not approve the sale, and, as a result, Haller could not purchase the business.
{¶15} Woolwine testified that Haller informed him of his failed attempt to purchase Lhamon‘s business. Woolwine testified that he asked Haller “why don‘t you do something about it?” and that Haller replied that he could not do anything.
{¶16} Lhamon testified that several guns, a Foxfire crossbow, a compound bow, some Gerber knives, a white Xbox, and several video games and movies where stolen from his residence on November 5, 2008. At trial, Lhamon identified State‘s exhibit 43 as one of the guns stolen from his residence.
{¶17} Rivera testified that she and Haller were in a relationship between January 2009 and July 2010. Rivera testified that in February 2010, Haller asked her to sell several items on eBay and that she listed the items as being sold from her residence in Sidney, Ohio. Rivera testified that Haller gave her a Foxfire crossbow, a compound bow, a Gerber knife, as well as other miscellaneous items
{¶18} Detective Mark Baker (“Detective Baker“), of the Allen County Sheriff‘s Office, testified that he arrested Haller. Detective Baker testified that a subsequent inventory search of the vehicle Haller was driving at the time of his arrest yielded a shotgun. At trial, Detective Baker identified State‘s exhibit 43 as the shotgun found in Haller‘s vehicle.
{¶19} Haller testified that he informed Woolwine of the failed attempt to purchase Lhamon‘s business, but never told Woolwine that he was angry with Lhamon or that he wanted to get even with Lhamon. Haller testified that he never asked Woolwine to burglarize Lhamon‘s residence, nor was he aware that Woolwine had committed the burglary until Woolwine‘s arrest. Haller testified that he bought the shotgun marked as State‘s exhibit 43 from Woolwine, but had no idea that Woolwine had stolen the shotgun from Lhamon‘s residence. Haller also testified that none of the items he asked Rivera to sell on eBay were from Woolwine.
{¶20} David Smelcer (“Smelcer“) testified that he resided at the Highland Lakes Drive residence when it was burglarized on August 26, 2009. Smelcer testified that prior to the burglary he and Haller were close friends and worked together for Colonial Insurance. Smelcer testified that in 2005 he ended his business and social relationship with Haller.
{¶21} Woolwine testified that Haller informed him of how Smelcer, in his opinion, “messed him out of [an] insurance” business. Trial Tr., p. 157. Woolwine testified that he burglarized Smelcer‘s residence because, like Lhamon, it was another individual who mistreated Haller. Woolwine testified that Haller showed him where Smelcer lived and informed him that he would find guns in the residence. Woolwine also testified that he knew Smelcer and his family were not at the residence at the time of the burglary because Haller had informed him that they were at the Allen County Fair. Woolwine testified that immediately following the burglary he called Haller to inform him of the burglary. In the same call, Woolwine also informed Haller that he was taking the guns he stole from Smelcer‘s residence to his residence. Woolwine testified that Haller subsequently came over to his residence and took the guns.
{¶22} Haller testified that he informed Woolwine of his past business and social relationship with Smelcer, but never told Woolwine that he was angry with Smelcer or that he wanted to get even with Smelcer. Haller also testified that he
Amherst Burglary
{¶23} Woolwine testified that he committed the Amherst Burglary because he owed Haller money. Woolwine testified that Haller showed him the residence on Amherst Road and informed him that he would find numerous guns in the residence. Woolwine testified that as he was burglarizing the residence a service man from a heating and cooling company entered the residence. Woolwine testified that he held the service man at gun point with a gun he received from Haller. Woolwine testified that his girlfriend, Tammy Jones (“Jones“) picked him up after the burglary and drove him home. Woolwine testified that he called Haller informing him about the burglary, and that Haller came by his residence and took several of the stolen items.
{¶24} Paul Sell (“Sell“), a service man for a local heating and cooling company, testified that he made a service call to the Amherst Road residence on December 14, 2009. Sell testified that he arrived at the Amherst Road residence between 8:00 a.m. and 8:15 a.m. Sell testified that upon entering the residence he was confronted by a masked man wielding a gun. Sell testified that the man bound his hands and feet and proceeded to ransack the residence. Sell testified that the man ransacked the residence “for about a half an hour or 45 minutes * * *.” Trial Tr., p. 278.
{¶26} Haller testified that he did not know anyone who resided at the Amherst Road residence. Haller also testified that he never asked Woolwine to burglarize the Amherst Road residence, nor was he aware that Woolwine had committed the burglary until Woolwine‘s arrest.
Gomer Burglary
{¶27} Like the Amherst Burglary, Woolwine testified that he committed the Gomer Burglary because he owed Haller money. Unlike the Amherst Burglary, Woolwine learned of the Gomer Road residence when he overheard “some guys talking about it at work.” Trial Tr., p. 170. Woolwine testified that Haller knew he was going to burglarize the Gomer Road residence and that Haller had arranged to pick him up after the burglary. Woolwine testified that he committed the burglary at approximately 11:00 a.m. Woolwine testified that after he completed the burglary he stole the resident‘s vehicle and called Haller. Woolwine testified that he drove to a secluded location on a gravel road running parallel to railroad tracks. Woolwine testified that Haller had identified the location prior to the burglary. Woolwine testified that Haller backed his silver
{¶28} Sherri Norris (“Norris“) testified that she lived and was present at the Gomer Road residence when it was burglarized on May 5, 2010. Norris testified that at approximately 10:45 a.m. she was preparing to leave her residence when she was approached by a masked man wielding a gun. Norris testified that the man proceeded to bind her hands and feet and ransack her residence. Norris testified that at approximately 11:20 a.m., after the man had left, she freed herself and sought help. Norris testified that the man stole her vehicle, a dark blue Ford Explorer (“Explorer“).
{¶29} Chad Roberts (“Roberts“), a railroad employee, testified that on May 5, 2010, he was working in the area where Woolwine testified to meeting Haller following the Gomer Burglary. Roberts testified that between 11:30 a.m. and 12:00 p.m. he witnessed what appeared to be a dark blue or black Explorer driving quickly down the gravel road. Roberts testified that shortly after seeing the Explorer he witnessed a large silver SUV backing down the gravel road. At trial, Roberts identified State‘s exhibit 31, a color picture of Haller‘s Suburban, as the SUV he saw backing down the gravel road on May 5, 2010.
{¶30} Detective Baker testified that phone records introduced into evidence revealed that Woolwine and Haller exchanged a series of calls on the day of the Gomer Burglary. Specifically, Detective Baker testified that the phone records
{¶31} Haller testified that he did not know anyone who resided at the Gomer Road residence. Haller also testified that he never asked Woolwine to burglarize the Gomer Road residence, nor was he aware that Woolwine had committed the burglary until Woolwine‘s arrest.
Kissing Hollow Burglary
{¶32} Like the Amherst and Gomer burglaries, Woolwine testified that he committed the Kissing Hollow Burglary because he owed Haller money. Woolwine testified that Haller had pointed out several residences on Kissing Hollow Drive, which “gave [him the] idea” to burglarize one of the residences. Trial Tr., p. 181. Woolwine testified that the burglary occurred between 9:30 p.m. and 10:00 p.m. Woolwine testified that after he left the Kissing Hollow residence he called Haller and informed him that he just committed a burglary and needed a ride. Woolwine testified that he and Haller exchanged several phone calls immediately following the burglary, during which they determined where and how Haller was going to pick him up.
{¶33} Carl Worsham (“Worsham“) testified that he lived and was present at the Kissing Hollow residence when it was burglarized on May 19, 2010. Worsham testified that he returned to his residence at approximate 9:30 p.m. After parking in the garage, Worsham exited his vehicle and found a masked man
{¶34} Detective Baker testified that phone records introduced into evidence revealed that Woolwine and Haller exchanged a series of calls on the day of the Kissing Hollow Burglary. Specifically, Detective Baker testified that the phone records revealed that Woolwine and Haller exchanged six successive calls between 9:19 p.m. and 10:37 p.m. on May 19, 2010.
{¶35} Haller testified that he did not know anyone who resided at the Kissing Hollow residence. Haller also testified that he never asked Woolwine to burglarize the Kissing Hollow residence, nor was he aware that Woolwine had committed the burglary until Woolwine‘s arrest.
{¶36} Upon considering the foregoing evidence, we find that Haller‘s convictions for complicity were not against the manifest weight of the evidence. There was direct evidence, adduced through Woolwine‘s testimony, that Haller intended to and did aid and/or abet Woolwine in the commission of the Ottawa, Highland, Amherst, Gomer, and Kissing Hollow burglaries. In particular, Woolwine‘s testimony reveals that Haller aided and/or abetted Woolwine in various ways for each of the burglaries.
{¶37} With respect to the Ottawa burglary, Woolwine‘s testimony reveals that Haller showed him where Lhamon‘s residence was located, which was essential due to Woolwine‘s unfamiliarity with the area, and informed him that
{¶38} In addition to Woolwine‘s testimony, the State presented evidence which, if believed, corroborated Woolwine‘s testimony, and supports the conclusion that Haller intended to and did aid and/or abet Woolwine in the commission of all five burglaries. First, Haller‘s girlfriend, Rivera, testified that in
{¶39} Accordingly, we overrule Haller‘s seventh assignment of error.
Assignments of Error Nos. V & VI
{¶40} In his fifth and sixth assignments of error, Haller contends that the trial court erred in instructing the jury on complicity, and that he was denied effective assistance of counsel because his attorney did not object to the complicity instruction given by the trial court. We disagree.
{¶41} Initially, we note that Haller did not object to any of the jury instructions. In fact, defense counsel stated that he was “satisfied” with the
{¶42} In order to have plain error under
{¶43} It is well established that a defendant is entitled to have the trial court give complete and accurate jury instructions on all the issues raised by the evidence. State v. Sneed, 63 Ohio St.3d 3, 9 (1992). When reviewing the trial court‘s charge, a “single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” State v. Price, 60 Ohio St.2d 136, 141 (1979), quoting Cupp v. Naughter, 414 U.S. 141, 146-147, 94 S.Ct. 396 (1973). Viewing the instructions in their totality, if the law is clearly and fairly expressed, a reviewing court should not reverse a judgment based upon an error in a portion of a charge. State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶ 30, citing Margroff v. Cornwell Quality Tools, Inc., 81 Ohio App.3d 174, 177 (9th Dist. 1991). “Moreover, misstatements and ambiguity in a portion of the instructions will not constitute reversible error unless the instructions are so misleading that they prejudicially affect a substantial right of the complaining party.” State v. Farr, 3d Dist. No. 13-06-16, 2007-Ohio-3136, ¶ 14, quoting Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist. 1993).
{¶44} The instruction defining complicity appeared within the context of the instruction for Count I, aggravated burglary. The trial court‘s instruction on complicity reads as follows:
COMPLICITY
When two or more persons have a common purpose to commit a crime, and one does one first and a second performs another, those acting together are equally guilty of the crime.
AID
“Aid” means to help, assist or strengthen.
ABET
“Abet” means to encourage, counsel, incite or assist.
If you find beyond a reasonable doubt that Ronald L. Haller knowingly aided, helped, assisted or encouraged another in the commission of Aggravated Burglary in Count 1, he is regarded as if
he was the principal offender and is just as guilty as if he personally performed every act constituting Aggravated Burglary. NOTE: This instruction also applies to Counts 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14, in that the defendant is alleged to be in complicity with another in committing the specific offense.
Likewise, in the Gun Specification, the “Complicity” definition applies as to not only Count 1, but Counts 2, 3, 4, 5, 6, 8, 9, and 10.
Each count and where the Gun Specification applies are to be considered separately. (Docket No. 119).
In addition to the foregoing instruction, the instructions for Counts I through XIV each stated that in order to find Haller guilty of complicity for the given offense, the jury must find beyond a reasonable doubt that Haller acted with the kind of culpability required for the commission of the given offenses, by aiding or abetting another in committing the given offense.
{¶45} Haller contends that the complicity instruction was flawed in four respects: (1) the phrase “one does one first” rendered the instruction meaningless and nonsensical; (2) the instruction did not contain the caveat that “mere association with one who perpetrates an unlawful act does not render a person a participant in the crime so long as his acts are innocent“; (3) the instruction did not properly reflect the requirement that one must act with the kind of culpability required for the commission of an offense to be guilty of complicity; and, (4) that it was error to not instruct the jury that an accessory after the fact cannot be guilty of complicity. We will address each argument in turn.
{¶47} Next, we are not persuaded by Haller‘s argument that it was necessary to include the admonition that “mere association with one who perpetrates an unlawful act does not render a person a participant in the crime so long as his acts are innocent.” “In a criminal case, if requested special instructions to the jury are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge.” Cincinnati v. Epperson, 20 Ohio St.2d 59 (1969), paragraph one of the syllabus, overruled in part on other grounds, State v. Carter, 72 Ohio St.3d 545 (1995). While the foregoing admonition is an accurate statement of law and is pertinent, we find nothing in the record to confirm that Haller requested this instruction be given by the trial court.
{¶48} Additionally, Haller does not cite any authority requiring that such an admonition be expressly provided to the jury where the defendant is charged with complicity. Reviewing the charge in its totality, we note that the complicity instruction required a finding that Haller associated with Woolwine, the principal offender, with a common purpose of committing the given offense. Clearly, the complicity instruction, as a whole, requires that the defendant engage in some active participation in the given offense before he can be found guilty of complicity. Accordingly, we find that the trial court did not err by omitting the foregoing admonition. See State v. Stubblefield, 8th Dist. No. 46436 (Sept. 29, 1983).6
{¶49} Next, we are not persuaded by Haller‘s argument that the complicity instruction did not properly reflect the requirement that one must act with the kind of culpability required for the commission of an offense to be guilty of complicity. While the instruction defining complicity did not contain the requirement that one must act with the kind of culpability required for the commission of an offense to be guilty of complicity, review of the record reveals that the requirement was included in Counts I through XIV. In particular, each of the instructions for
{¶50} Finally, we are not persuaded by Haller‘s argument that the trial court erred when it did not include an instruction that an accessory after the fact cannot be guilty of complicity. The Ohio Supreme Court has held that, if the trial court properly instructs the jury on Ohio law pertaining to complicity, it is under no obligation to also give an instruction on accessories after-the-fact. State v. Carver, 30 Ohio St.2d 280, 290 (1972); State v. Boddie, 3d Dist. No. 1-2000-72 (Sept. 6, 2001). Based on our foregoing discussion and having considered the complicity instruction in the context of the overall charge, we find that the trial court properly instructed the jury on complicity, and therefore was under no obligation to give an instruction on accessories after-the-fact.
{¶51} Given the foregoing, we find that the errors alleged by Haller in relation to the complicity instruction do not rise to the level of plain error.
{¶52} Furthermore, we find that Haller was not denied effective assistance of counsel. An ineffective assistance of counsel claim requires proof that trial counsel‘s performance fell below objective standards of reasonable representation
{¶53} Haller maintains that his counsel was ineffective because he failed to object to the complicity instruction given by the trial court. Having found that the trial court properly instructed the jury on complicity, we find that Haller was not denied effective assistance of counsel.
{¶54} Accordingly, we overrule Haller‘s fifth and sixth assignments of error.
Assignment of Error No. I
{¶55} In his first assignment of error, Haller contends that his convictions for Counts XI and XIII should be reduced from a second degree felony to a fourth
(A) When the presence of one or more additional elements makes an offense one of more serious degree:
* * *
(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
{¶56} In State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, the Ohio Supreme Court addressed
{¶57} In affirming the appellate court‘s decision, the court stated, in relevant part:
In this case, Pelfrey‘s offense of tampering with records would have constituted a misdemeanor under
R.C. 2913.42(B)(2)(a) but for the additional element that the records at issue were government records, a circumstance that elevates the crime to a third-degree felony underR.C. 2913.42(B)(4) . However, neither the verdict form nor the trial court‘s verdict entry mentions the degree of Pelfrey‘s offense; nor do they mention that the records involved were government records. The statute provides explicitly what must be done by the courts in this situation: the “guilty verdict constitutes a finding of guilty of the least degree of the offense charged.”R.C. 2945.75(A)(2) .Because the language of
R.C. 2945.75(A)(2) is clear, this court will not excuse the failure to comply with the statute or uphold Pelfrey‘s conviction based on additional circumstances such as those present in this case. The express requirement of the statute cannot be fulfilled by demonstrating additional circumstances, such as that the verdict incorporates the language of the indictment, or by presenting evidence to show the presence of the aggravated element at trial or the incorporation of the indictment into the verdict form, or by showing that the defendant failed to raise the issue of the inadequacy of the verdict form. We hold that pursuant to the clear language ofR.C. 2945.75 , a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense. Pelfrey at ¶ 13-14.
{¶59} Here, Haller was charged with complicity to commit burglary under
(A) No person, by force, stealth, or deception, shall do any of the following:
* * *
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense;
* * *
(4) Trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.
* * *
(C) Whoever violates this section is guilty of burglary. A violation of division (A)(1) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree. A violation of division (A)(4) of this section is a felony of the fourth degree.
R.C. 2911.12 .8
{¶60} Although Haller was indicted under section (A)(2) of
We, the jury, being duly impaneled and sworn, find the Defendant, Ronald L. Haller guilty of Complicity to Burglary. (Docket No. 114, 116).
{¶61} Clearly, the verdict form contains neither the degree of the offense nor the aggravating elements of
{¶62} Accordingly, we sustain Haller‘s first assignment of error.
Assignment of Error No. III
{¶63} In his third assignment of error, Haller contends that
{¶64} After careful review of the record, we note that Haller did not challenge the constitutionality of
{¶65} Accordingly, we overrule Haller‘s third assignment of error.
Assignments of Error Nos. II & IV
{¶66} In his second and fourth assignments of error, Haller contends that the trial court erred when it did not merge Counts XI, XII, and XV together and Counts XIII and XIV together, because the offenses are allied offenses of similar import. Haller also contends that the current process by which offenses are determined to be allied violates his right to notice, his right to a trial, and the requirement that the state prove his guilt beyond a reasonable doubt. We agree in part and disagree in part.
{¶67} Ohio‘s statute concerning multiple counts,
(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.
{¶68} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court clarified the application of
{¶69} Johnson describes the test for determining whether offenses are allied as follows:
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 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. (Emphasis sic; Citations omitted.) Johnson at ¶ 48-50.
{¶70} Haller contends that Counts XI, XII, and XV (complicity to burglary, complicity to grand theft, and receiving stolen property, respectively) are allied offenses of similar import. In support, Haller advances two alternative arguments, which we will address in turn.
{¶71} Before we address Haller‘s arguments, we note that we will consider whether burglary and grand theft are allied offenses, as opposed to the offenses for which Haller was convicted, complicity to commit burglary and complicity to commit grand theft.10 Pursuant to
{¶72} First, Haller argues that based on the definition of trespass, a burglary is completed when the person vacates the premises in which they trespassed. Consequently, Haller maintains that any crime that is committed
{¶73} For purposes of burglary, trespass is defined as a violation of the statute defining criminal trespassing.
{¶74} This is a novel yet incorrect interpretation of the statute defining trespass. First, Haller misinterprets the meaning of “remain on the land or premises.” Contrary to Haller‘s interpretation of “remain on the land or premises,” the term “remain” refers to those situations where an individual, who initially has a privilege to enter onto another‘s land or premises, knowingly remains on the land or premises after the privilege has lapsed or has otherwise been revoked. See City of Columbus v. Peoples, 10th Dist. No. 05AP-247, 2006-Ohio-1718 (though defendant initially had a privilege to enter hospital‘s premises, he was found guilty of criminal trespass when he remained on the hospital‘s premises after the privilege to remain thereon was revoked by the hospital‘s employees). Second, and more importantly, Haller ignores the existence of the word “or” between “enter” and “remain.” The presence of “or” is significant as it
{¶75} Notwithstanding his foregoing argument, Haller also cites several cases in which other courts of appeal, applying Johnson, have determined that burglary and theft are allied offenses of similar import. State v. Blackburn, 4th Dist. No. 10CA46, 2011-Ohio-4624 (finding counts of burglary, theft, and receiving stolen property were allied offenses because they were committed with single act); State v. James, 5th Dist. No. 11 CAA 05 0045, 2012-Ohio-966 (finding counts of burglary and theft were allied offenses because they were committed through the same course of conduct and single state of mind). Having considered the holdings in the cases cited by Haller, we find the cases to be distinguishable from the instant case.
{¶77} As for Count XV, receiving stolen property, we find, and the State concedes, that Count XV merges with Count XII, grand theft. First, we find that it is possible to commit theft and receiving stolen property with the same conduct.
{¶78} Accordingly, we find that the trial court did not err when it determined that Counts XI and XII were not allied offenses, but did err when it determined that Counts XII and XV were not allied offenses.
Counts XIII and XIV (Highland Burglary)
{¶79} Haller contends that Counts XIII and XIV (complicity to commit burglary, complicity to commit grand theft) are allied offenses of similar import. We disagree.
{¶80} Again, without addressing the first step under Johnson, we find, under the facts of this case, that the burglary and grand theft offenses associated with Counts XIII and XIV, respectively, were committed by two separate acts, and therefore are not allied offenses.
{¶81} Accordingly, we find that the trial court did not err when it determined that Counts XIII and XIV were not allied offenses.
Process of Determining Allied Offenses
{¶82} Finally, Haller contends that the current process by which offenses are determined to be allied violates his right to notice, his right to a trial, and the requirement that he be proven guilty beyond a reasonable doubt. Specifically, Haller contends that the State should be required to provide the defendant notice in
{¶83} Initially, we note that Haller cites no authority in support of his contention. Notwithstanding a lack of supportive authority, we are not persuaded by Haller‘s argument. The law is clear; the trial court, not the fact finder, determines whether offenses are allied as this is a question of law, not an issue of fact. Contrary to Haller‘s assertion, we fail to see how this process prejudicially affects, as he phrases it, his right to notice, his right to a trial, and the requirement that he be proven guilty beyond a reasonable doubt. As a result, we find Haller‘s contention to be without merit.
{¶84} Accordingly, we sustain in part and overrule in part Haller‘s second assignment of error, and overrule Haller‘s fourth assignment of error.
{¶85} Having found no error prejudicial to Haller herein, in the particulars assigned and argued in the third, fourth, fifth, sixth, and seventh assignments of error, but having found error prejudicial to Haller, in the particulars assigned and argued in the first and second assignments of error, we affirm in part, and reverse
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr