STATE OF OHIO v. WALTER TYLER RICHARDSON
CASE NO. CA2012-06-043
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
5/13/2013
[Cite as State v. Richardson, 2013-Ohio-1953.]
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Stephan D. Madden, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-appellant
HENDRICKSON, P.J.
{1} Defendant-appellant, Walter Tyler Richardson, appeals his convictions in the Clermont County Court of Common Pleas for safecracking and grand theft. For the reasons stated below, we affirm in part, reverse in part, and remand for resentencing.
{2} On January 31, 2011, Jermaine Carlock came home from work and found two intruders inside his home. One оf the men, Eric Lewis, was in the kitchen. Carlock heard
{3} Police also arrived at Carlock‘s home to investigate the burglary. At the home, Carlock‘s two dogs had been beaten, the house ransacked, and other items of property had been stolen. Police did not find the second man involved in the robbery but did find footprints of shoes in the snow outside Carlock‘s home. After an investigation, appellant was arrested for his alleged role in the burglary at Carlock‘s home as well as several other burglaries.
{4} On February 9, 2011, appellant was indicted on three counts of burglary, one count of theft, two counts of grand theft, and one count of safecracking. A bench trial was held where Lewis testified against appellant regarding the burglary at Carlock‘s home. At trial, Lewis stated that appellant was involved in the Carlock burglary and was the principal offender in the crimes. Lewis also stated that Carlock‘s safe was sitting in the front yard of the home and he and appellant did not attempt to open the safe. Instead, the pair placed the safe in the back of Lewis’ car. The state also presented evidence which showed that the footprints found outside Carlock‘s home matched a pair of appellant‘s shoes. Additionally, police found jewelry that belonged to Carlock оn appellant.
{5} After the presentation of the evidence, the trial court found appellant guilty of two counts of burglary, one count of theft, one count of grand theft, and one count of safecracking. Appellant was then sentenced to an aggregate рrison term of 16 years and 9 months.
{6} Appellant now appeals, asserting two assignments of error.
{7} Assignment of Error No. 1:
{8} APPELLANT‘S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE.
{9} Appellant argues that his safecracking conviction is based on insufficient evidence because the evidence did not show he “enter[ed],” “force[d] an entrance into,” or “tamper[ed]” with a safe. Appellant maintains that the state did not prove these elements because the safe was never opened. The state disagrees and argues that while the safe was never “enter[ed],” appellant‘s action in moving the safe to the Lеwis’ vehicle constitutes “tampering” for purposes of safecracking.
{10} When reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, an appellate court examines the evidence in order to determine whethеr such evidence, if believed, would support a conviction. State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, ¶ 33. In such a review, “‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” State v. Haney, 12th Dist. No. CA2005-07-068, 2006-Ohio-3899, ¶ 14, quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37. Further, a reviewing court must give “full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). A reviewing court must not substitute its evaluation of the witness’ credibility for that of the trier of fact. See State v. Benge, 75 Ohio St.3d 136, 143 (1996).
{11} Appellant was convicted of safecracking, in violation of
{12} This case presents a question of statutory construction because
{13} “Tamper” has been dеfined as “to meddle so as to alter,” “to make changes that are illegal, corrupting, or perverted,” or “to interfere improperly.” (Emphasis added.) Black‘s Law Dictionary, (9th Ed. 2009). Additionally, while
{14} We find that appellant‘s conduct in removing the safe from Carlock‘s home to Lewis‘s car constitutes “tampering” for purposеs of safecracking. Appellant‘s act in moving the safe from Carlock‘s home to Lewis’ car meets both the definitions under Black‘s Law Dictionary and
{15} Lastly, we disagree with appellant‘s argument that our decision in State v. Crosby, 12th Dist. Nos. CA2010-10-081, CA2011-02-013, 2011-Ohio-4907, limits safecracking to only “entering” a safe. First, we note that this interpretation is obviously incorrect as
{16} Appellant‘s first assignment of error is overruled.
{17} Assignment of Error No. 2:
{18} THE TRIAL COURT ERRED IN IMPOSING SENTENCE[S] FOR MULTIPLE OFFENSES, WHICH OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT.
{19} Appellant argues the trial court erred in refusing to merge his convictions for grand theft and safecracking, as these are allied оffenses of similar import subject to merger
{20}
(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.
{21} The Ohio Supreme Court established a new two-part test for determining whether offenses are allied offenses of similar import under
{22} If it is possible to cоmmit both offenses with the same conduct, the court must next determine whether the offenses were in fact committed by a single act, performed with a single state of mind. Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If so, the offenses are allied offenses of similar import and must be merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶ 51. “Animus” is defined for
{23} We employ the Johnson analysis to determine whether grand theft and safecracking are allied offenses of similar import under
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.
(B)(4) If the property stolen is a firearm or dangerous ordnance, a violation of this section is grand theft.1
{24} We find that it is possible to commit the offenses of safecracking and grand theft with the same conduct. A defendant who tampers with a safe, such as removing a safe from the owner‘s house, is also exerting control over the safe‘s contents. Additionally, it is possible that a defendant who is tampering with the safe is doing this without the consent of the owner, with the purpose to deprive the owner of his or her property.
{25} We also find that appellant committed these offenses with the same conduct and with the same animus. It is apparent from the facts alleged in the indictment and the bill of particulars that appellant did not commit these offenses separately or with a separate state
{26} The state argues that our decision in Crosby, 12th Dist. Nos. CA2010-10-081, CA2011-02-013, 2011-Ohio-4907, requires that grand theft and safecracking do not merge. In Crosby, this court found that grand theft and safecracking were not allied offenses where the defendant broke into a safe and stole the firearms located therein. Id. at ¶ 21. However, Crosby is distinguishable in that the defendant in Crosby actually entered into the safe and took the firearms from the safe. Id. at ¶ 2. In this case, appellant‘s only conduct in “tampering” with the safe wаs removing it from the home. While appellant may have expected to find valuables inside, there was no evidence that appellant had particular knowledge of valuables inside the safe. Therefore, while the defendant in Crosby completed safecracking and grand theft with separate conduct and a separate animus, the facts in this case show that the offenses were committed by a single act with a single purpose. The Supreme Court acknowledged that the results of the allied offenses analysis will vary on a case-by-case basis and while two crimes in one case may merge, the same crimes in another may not. State v. Edwards, 11th Dist. No. 2012-L-034, 2013-Ohio-1290, ¶ 62, citing Johnson at ¶ 52.
{27} Therefore, the judgment is affirmed regarding the sufficiency of the evidence for appellant‘s safecracking conviction. The judgment of the trial court sentencing appellant on
{28} Judgment affirmed in part, and reversed only to the extent the sentence is vacated, and the matter is remanded for sentencing.
S. POWELL and PIPER, JJ., concur.