State v. SimmondsState v. Simmonds
- Reporters:
- ,
- Before:
- Powell, Ringland, Hendrickson
POWELL, P.J.
{¶ 1} Defendant-appellant, Ronald Simmonds, appeals his conviction and sentence in the Clermont County Court of Common Pleas for breaking and entering, theft, and possession of criminal tools.
{¶ 2} On October 1, 2010, appellant trespassed onto the grounds of the Real Life Assembly of God Church in Batavia, Ohio, where he disassembled and detached an air
{¶ 3} As a result of this activity, appellant was indicted for one count of breaking and entering (
{¶ 4} During sentencing, the trial court merged the breaking and entering and theft charges, and the state elected to pursue the theft offense. The court refused appellant‘s request to merge the possession of criminal tools offense. Appellant was sentenced to consecutive 12-month prison terms for theft and possession of criminal tools, for an aggregate prison term of two years.
{¶ 5} Appellant timely appeals, raising three assignments of error for review. To facilitate discussion, we will address appellant‘s arguments out of order.
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES UPON RONALD SIMMONDS FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER
{¶ 9}
(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.
{¶ 10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme Court of Ohio established a new two-part test for determining whether offenses are allied offenses of similar import under
{¶ 11} If the multiple offenses can be committed with the same conduct, the court must then determine whether the offenses were in fact committed by a single act, or performed with a single state of mind. Johnson at ¶ 49.
{¶ 13} Applying Johnson, we first determine whether it is possible for theft and possession of criminal tools to be committed with the same conduct.
{¶ 14} Appellant was charged with theft in violation of former
{¶ 15} Appellant was also charged with possession of criminal tools in violation of
{¶ 16} The state concedes, and we agree, that it is possible to commit both offenses with the same conduct. Where, as here, a defendant uses tools to obtain control over property without the owner‘s consent, it is possible for the defendant to have committed both theft and possession of criminal tools. See Clay, 2011-Ohio-5086 at ¶ 23 (“[where] a defendant commits a theft by using an object to threaten the immediate use of force, it is possible for the defendant to have committed both robbery and possession of criminal tools“).
{¶ 17} We next determine whether, under the particular facts of this case, appellant committed these offenses with the same conduct, i.e., a “single act,” and with the same animus. Johnson, 2010-Ohio-6314 at ¶ 49. See also State v. Snyder, 12th Dist. No. CA2011-02-018, 2011-Ohio-6346, ¶ 21. We conclude these offenses were committed by the
{¶ 18} Count 3 of the indictment alleged that on October 1, 2010 in Clermont County, Ohio, appellant possessed a device or tool “with purpose to use it criminally * * * and the substance, device, instrument, or article involved in the offense was intended for use in the commission of a felony * * *.” Count 2 of the indictment alleged that on October 1, 2010 in Clermont County, “with purpose to deprive the owner of property or services, [appellant] did knowingly obtain or exert control” over items worth between $500 and $5,000, a fifth-degree felony under former
{¶ 19} It is undisputed that the tools used during the commission of the theft, namely, the drill, wrench, pipe and wire cutters, were also the subject of the possession of criminal tools charge. From this, it is evident the state prosecuted appellant for the possession of criminal tools based on his conduct in engaging in the theft. Thus, the remaining question is whether appellant committed the offenses of theft and possession of criminal tools with a “separate animus.” Johnson, 2010-Ohio-6314 at ¶ 49.
{¶ 20} Under
{¶ 21} Here, the facts alleged in the indictment and bill of particulars reveal that appellant approached the church with the intent to use the tools to steal the air conditioner. Specifically, with regard to the criminal tools charge, the bill of particulars states: “The defendant, on or about October 1, 2010, in Clermont County, Ohio, did possess or have under his control any device or instrument, with purpose to use it criminally[.] * * *
{¶ 22} Additionally, during closing argument, the state explained: “I told you that there was not going to be a doubt that * * * breaking and entering was committed; that a theft was committed; and that criminal tools were, in fact, utilized to commit these offenses.”
{¶ 23} Given these statements, along with the evidence before us, we find appellant acted with the same animus, i.e., the same purpose, intent, or motive, in committing the offenses of possession of criminal tools and theft, namely, to obtain the air conditioning unit from the church. See Snyder, 2011-Ohio-6346 at ¶ 32; State v. McClendon, 2nd Dist. No. 23558, 2011-Ohio-5067. See also State v. Humphrey, 4th Dist. No. 10CA3150, 2011-Ohio-5238, ¶ 20 (court was willing to find same animus in breaking and entering and possession of criminal tools - a walkie-talkie - if the record had shown defendant used the walkie-talkie during the break-in).
{¶ 24} Having answered both prongs of Johnson in the affirmative, we find that under the facts of this case, theft and possession of criminal tools are allied offenses of similar import that must be merged. See Johnson, 2010-Ohio-6314 at ¶ 51; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 26 (allied offenses of similar import must be merged at sentencing);
{¶ 26} Assignment of Error No. 1:
{¶ 27} THE TRIAL COURT VIOLATED RONALD SIMMONDS‘S CONSTITUTIONAL RIGHTS AND COMMITTED PLAIN ERROR WHEN IT ENTERED A CONVICTION AGAINST MR. SIMMONDS FOR A FIFTH-DEGREE FELONY OFFENSE AFTER IT FAILED TO PROVIDE THE JURY WITH A VERDICT FORM THAT IDENTIFIED THE DEGREE OF THE THEFT OFFENSE AS REQUIRED BY
{¶ 28} Appellant next argues that the offense level of his theft conviction must be reduced due to an error in the verdict form. The state concedes appellant‘s argument. We agree and sustain appellant‘s assignment of error.
{¶ 29}
(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.
{¶ 30} In State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, the Ohio Supreme Court held that pursuant to the clear language of the statute, “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.” Id. at ¶ 14.
{¶ 31} At the time of the offense, a former version of
{¶ 32} Appellant‘s first assignment of error is sustained.
{¶ 33} Assignment of Error No. 3:
{¶ 34} THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO IMPOSE COURT COSTS UNDER
{¶ 35} In his third and final assignment of error, appellant argues the trial court erred by imposing court costs in its sentencing entry without notifying him that it was imposing the costs during the sentencing hearing.
{¶ 36} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, the Ohio Supreme Court held that a trial court errs by imposing court costs in its sentencing entry when it did not impose those costs in open court at the sentencing hearing. Id. at ¶ 22. As a result of this error, the court found defendants are entitled to a remand for the limited purpose of allowing them to move the court for a waiver of payment of court costs. Id. at paragraph one of the
{¶ 37} Upon review of the transcript, it is clear the trial court did not impose court costs during the sentencing hearing. As a result, appellant suffered harm in that he was denied the opportunity to claim indigency and seek a waiver of those costs before the trial court. Id.;
{¶ 38} Appellant‘s third assignment of error is sustained.
{¶ 39} The trial court‘s judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion.
RINGLAND and HENDRICKSON, JJ., concur.