[Cite as State v. Lane, 2014-Ohio-562.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :          CASE NO. CA2013-05-074

                                                :               OPINION
    - vs -                                                       2/18/2014
                                                :

MARK ANTHONY LANE,                              :

        Defendant-Appellant.                    :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-10-1613



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Mark A. Lane, appeals his sentence in the Butler County

Court of Common Pleas for aggravated burglary and felonious assault. For the reasons

stated below, we affirm the decision of the trial court.

        {¶ 2} In the early morning hours of September 11, 2012, Lane broke a window at the

residence of his former girlfriend, Tammy Hays, and entered the structure without her

permission. Lane entered the residence with a firearm and intended to commit an assault or
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a felonious assault therein. During this time, Hays and another individual were present in the

home. After Lane had broken into the home, he shot Hays with the firearm.

       {¶ 3} On October 24, 2012, Lane was indicted on two counts of aggravated burglary

in violation of R.C. 2911.11(A)(1) and (2) and two counts of felonious assault in violation of

R.C. 2903.11(A)(1) and (2). All four counts also contained a firearm specification pursuant to

R.C. 2941.14. Subsequently, Lane pled guilty to one count of aggravated burglary in

violation of R.C. 2911.11(A)(2) and one count of felonious assault in violation of R.C.

2903.11(A)(2) as well as two specifications.

       {¶ 4} On April 12, 2013, the trial court held a sentencing hearing. At the hearing,

Lane argued the aggravated burglary and felonious assault convictions should be merged

because they were allied offenses of similar import. In mitigation, Lane stated that he and

Hays had recently ended their relationship and that he entered into her home to retrieve his

belongings that she refused to return to him. The court rejected Lane's allied offenses

argument and sentenced him for a period of six years in regards to the aggravated burglary

and a period of eight years for the felonious assault. Lane was also sentenced to one year

for each of the two firearm specifications. The trial court ordered the specification charges to

be served concurrently to each other, but ordered all other sentences to be consecutive,

totaling a 15-year sentence for Lane. The court also entered a judgment against Lane for the

costs of prosecution.

       {¶ 5} Lane now appeals, assigning three assignments of error:

       {¶ 6} Assignment of Error No. 1

       {¶ 7} IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL COURT

IN THE INSTANT CASE TO REFUSE TO MERGE THE CHARGE OF AGGRAVATED

BURGLARY WITH AGGRAVATED ASSAULT AS REQUIRED BY R.C. 2941.25 AT

SENTENCING.

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       {¶ 8} Lane argues that the trial court erred when it declined to merge the aggravated

burglary conviction with the felonious assault conviction as the offenses were committed with

the same conduct and same animus. First, Lane argues that both offenses were committed

with the same conduct because an element of his aggravated burglary conviction was that he

inflict physical harm on another. Therefore, the aggravated burglary offense was not

completed until he shot Hays and this act also constituted the felonious assault. Second,

Lane maintains both convictions were committed with the same animus because Lane's

purpose in committing the aggravated burglary was to feloniously assault Hays.

       {¶ 9} The Double Jeopardy Clause of the United States Constitution prohibits

multiple punishments for the same offense. To that end, the Ohio General Assembly

enacted R.C. 2941.25, Ohio's multiple-count statute, "which subjects 'allied offenses of

similar import' to the judicial concept of 'merger' at sentencing." State v. Highfield, 12th Dist.

Brown No. CA2013-05-007, 2014-Ohio-165, ¶ 6, citing State v. Grube, 4th Dist. Gallia No.

12CA7, 2013-Ohio-692, ¶ 45. Specifically, R.C. 2941.25 provides that:

              (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} The Ohio Supreme Court has set forth a test to determine whether offenses are

allied offenses of similar import pursuant to R.C. 2941.25. State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314. Pursuant to the Johnson test, courts must first determine "whether it

is possible to commit one offense and commit the other with the same conduct." (Emphasis

sic.) Johnson at ¶ 48. It is not necessary that the commission of one offense will always

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result in the commission of the other. Id. Rather, the question is simply whether it is possible

for both offenses to be committed by the same conduct. Id.

       {¶ 11} If it is possible to commit both offenses with the same conduct, courts must

next determine whether the offenses were in fact committed by the same conduct, that is, by

a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied

offenses of similar import and must be merged. Id. 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.

       {¶ 12} "Animus" is defined for purposes of R.C. 2941.25(B) as "'purpose' or 'more

properly, immediate motive.'" State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-

Ohio-885, ¶ 13, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979). "If the defendant

acted with the same purpose, intent, or motive in both instances, the animus is identical for

both offenses." Lewis at ¶ 13. Animus is often difficult to prove directly, but must be inferred

from the surrounding circumstances. State v. Lung, 12th Dist. Brown No. CA2012-03-004,

2012-Ohio-5352, ¶ 12.

       {¶ 13} An appellate court applies a de novo standard of review in reviewing a trial

court's R.C. 2941.25 merger determination. State v. Tannreuther, 12th Dist. Butler No.

CA2013-04-062, 2014-Ohio-74, ¶ 12, citing State v. Williams, 134 Ohio St.3d 482, 2012-

Ohio-5699, ¶ 28. "The 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."

Tannreuther at ¶ 12.

       {¶ 14} Lane pled guilty and was convicted of aggravated burglary in violation of R.C.

2911.11(A)(2), which provides in pertinent part,

               (A) 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

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             the structure * * * any criminal offense if any of the following
             apply:

             (2) The offender has a deadly weapon or dangerous ordnance
             on or about the offender's person or under the offender's control.

Lane was also convicted of felonious assault, in violation of R.C. 2903.11(A)(2) which

provides, "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to

another or to another's unborn by means of a deadly weapon or dangerous ordnance."

      {¶ 15} Lane's aggravated burglary and felonious assault convictions are not allied

offenses of similar import because the offenses were committed separately and with a

separate animus. Lane incorrectly states that he was convicted of aggravated burglary in

violation R.C. 2911.11(A)(1), which requires as an element of the offense that the offender

inflicts physical harm on another. Instead, Lane was convicted of aggravated burglary in

violation of R.C. 2911.11(A)(2), which requires only that he enter an occupied residence with

purpose to commit a criminal offense with a deadly weapon.

      {¶ 16} The aggravated burglary was committed when Lane forced his way into Hays'

residence by breaking a window with the intent to commit an assault while carrying a deadly

weapon. To commit aggravated burglary, one does not have to actually commit any criminal

offense; rather Lane simply had to trespass with the purpose to commit a criminal offense.

Therefore, once inside the residence, with the requisite intent and weapon, the aggravated

burglary was completed. The felonious assault did not occur until later when Lane had

entered the home and encountered Hays. It was only at this time, that Lane completed the

felonious assault offense, by shooting Hays in the leg, causing her physical harm.

Consequently, "[b]ecause one offense was completed before the other offense occurred, the

two offenses were committed separately for purposes of R.C. 2941.25(B) notwithstanding

their proximity in time and that one was committed in order to commit the other." State v.

DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635, ¶ 33, quoting State v. Turner, 2d

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Dist. Montgomery No. 24421, 2011-Ohio-6714. See State v. Ragland, 5th Dist. Stark No.

2010CA00023, 2011-Ohio-2245, ¶ 80.

       {¶ 17} Lane's first assignment of error is overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} IT WAS ERROR TO SENTENCE [LANE] TO CONSECUTIVE SENTENCES IN

THE INSTANT CASE.

       {¶ 20} Lane argues the trial court erred in imposing consecutive sentences because it

did not correctly follow the consecutive sentence criteria set forth in R.C. 2929.14. Lane

further asserts that in imposing the sentence the court did not consider the principles and

purposes of felony sentencing under R.C. 2929.11 and did not consider the seriousness and

recidivism factors under R.C. 2929.12. Specifically, Lane maintains that the offenses were

less serious because Hays provoked him when she refused to return his belongings.

       {¶ 21} The standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony

sentences. State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶

6.   Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony

sentencing decision, such as the case here, "[t]he appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing." However, as explicitly

stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion."

       {¶ 22} Rather, the appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

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A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-

5926, ¶ 10.

       {¶ 23} In making such a determination, it is "important to understand that the clear and

convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8,

quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 at ¶ 21. "It does not

say that the trial judge must have clear and convincing evidence to support its findings." Id.

Quite the contrary, "it is the court of appeals that must clearly and convincingly find that the

record does not support the court's findings." Id. Simply stated, the language in R.C.

2953.08(G)(2) establishes an "extremely deferential standard of review" for "the restriction is

on the appellate court, not the trial judge." Id.

       {¶ 24} Pursuant to R.C. 2929.14(C), in order to impose a consecutive sentence, the

trial court must engage in a three-step analysis and make certain findings before imposing

consecutive sentences pursuant to R.C. 2929.14(C)(4). State v. Dillon, 12th Dist. Madison

No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find that the consecutive

sentence is necessary to protect the public from future crime or to punish the offender. Id.

Second, the trial court must find that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public. Id.

Third, the trial court must find that one of the following applies:

              (a) The offender committed one or more of the multiple offenses
              while the offender was awaiting trial or sentencing, was under a
              sanction imposed pursuant to section 2929.16, 2929.17, or
              2929.18 of the Revised Code, or was under post-release control
              for a prior offense.

              (b) At least two of the multiple offenses were committed as part

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              of one or more courses of conduct, and the harm caused by two
              or more of the multiple offenses so committed was so great or
              unusual that no single prison term for any of the offenses
              committed as part of any of the courses of conduct adequately
              reflects the seriousness of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by the offender.

Id.; R.C. 2929.14(C)(4).

       {¶ 25} The trial court is not required to give reasons explaining these findings, nor is

the court required to recite any "magic" or "talismanic" words when imposing consecutive

sentences. State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 45.

However, it must be clear from the record that the trial court actually made the required

statutory findings. Id.

       {¶ 26} Prior to sentencing Lane to consecutive sentences, the trial court discussed the

seriousness of Lane's conduct. It stated that Lane "caused great physical harm to [Hays]"

and emotional suffering. At the time of the sentencing, Hays still was dealing with the

aftermath of the shooting because a bullet fragment remained lodged in her body. The court

also noted that Hays could have easily died from the assault because "it appears that [the

bullet] hit an artery, one of the main arteries, that she could [have] bled out." Additionally, the

court stated that it had reviewed Lane's record and that he has had "six prior convictions as

an adult," "two violent offenses," as a result of these convictions he has had nine parole

violations, he has an outstanding warrant in Kentucky, and he has previously been to prison.

       {¶ 27} In light of these facts, the court determined that Lane's sentences for

aggravated burglary, felonious assault, and one of his gun specifications charges should be

served consecutively. The court noted that in imposing the consecutive sentences it has

considered the principles and purposes of the sentencing statutes. Specifically, the court

stated:

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              The Court finds that the consecutive sentences are necessary to
              protect the public from future crime and is necessary to punish
              the offender.

              Further, this Court finds that the consecutive sentences are not
              disproportionate to the seriousness of the offender's conduct and
              to the danger the offender poses to the public.

              And also this Court finds that two - - the two offenses were
              committed as part of one or more course of conduct, and the
              harm caused by two or more of the offenses was so great and
              unusual that no single prison term can adequately reflect the
              seriousness of the offender's conduct. And also this Court finds
              that the offender's history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by this offender.

These findings were later memorialized in the trial court's sentencing entry.

       {¶ 28} From the trial court's statements at the sentencing hearing and the language

utilized in the sentencing entry, it is clear that the trial court properly complied with the

dictates of R.C. 2929.14(C)(4). See State v. Philpot, 12th Dist. Clermont No. CA2013-02-

009, 2013-Ohio-4534, ¶ 15. Therefore, the trial court did not err in imposing consecutive

sentences in this matter.

       {¶ 29} We also disagree with Lane's contention that his sentence was in error because

the trial court did not properly consider the principles and purposes of felony sentencing

under R.C. 2929.11 or weigh the seriousness and recidivism factors under R.C. 2929.12.

The sentencing entry specifically states that the trial court considered "the principles and

purposes of sentencing under [R.C.] 2929.11 and has balanced the seriousness and

recidivism factors of [R.C.] 2929.12." At the hearing, the court considered the serious nature

of the offenses, Lane's criminal history, and rejected Lane's explanation that his actions were

justified because Hays refused to return his belongings. The fact that the trial court chose to

weigh the various sentencing factors differently than how Lane would have weighed them is

not sufficient to establish an abuse of discretion. State v. Paul, 12th Dist. Fayette No.


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CA2011-10-026, 2012-Ohio-3205, ¶ 29. Therefore, because our standard of review is now a

higher, clear and convincing standard, the trial court certainly did not err by considering the

factors and purposes and principles of sentencing and placing its own emphasis on some of

those factors.

       {¶ 30} In light of the foregoing, we find that the trial court did not err in sentencing

Lane to an aggregate 15-year prison term for aggravated burglary, felonious assault, and two

firearm specifications. Lane's second assignment of error is overruled.

       {¶ 31} Assignment of Error No. 3:

       {¶ 32} IT WAS ERROR FOR THE TRIAL COURT TO NEGLECT TO ADVISE THE

DEFENDANT/APPELLANT WHEN COURT COSTS WERE IMPOSED, THAT THE COSTS

INCLUDED JURY FEES AND THAT FAILURE TO PAY SAID COSTS COULD RESULT IN

THE IMPOSITION OF COMMUNITY SERVICE TO PAY THE SAME AT THE RATE NOT TO

EXCEED 40 HOURS PER MONTH.

       {¶ 33} Lane contends that the trial court erred when it imposed court costs without

notifying him that failing to pay the costs may result in an order to perform community

service. Citing this court's decision in State v. Weathers, 12th Dist. Butler No. CA2012-02-

036, 2013-Ohio-1104, Lane maintains that due to this notification failure, the portion of the

trial court's judgment imposing court costs must be reversed and the cause must be

remanded for the proper imposition of court costs in accordance with R.C. 2947.23(A)(1).

       {¶ 34} In Weathers, this court found that under the version of R.C. 2947.23(A)(1) in

effect at the time of the defendant's sentencing, the trial court erred when it "imposed court

costs during the resentencing hearing but failed to advise [defendant] that court costs

included jury fees and that, should appellant fail to pay the costs, he could be ordered to

perform community service." Id. at ¶ 20. See State v. Smith, 131 Ohio St.3d 297, 2012-

Ohio-781, ¶ 10. Under these circumstances, the proper remedy is to "reverse that portion of

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the trial court's judgment imposing court costs, affirm the remainder of the trial court's

judgment, and remand the matter to the trial court for proper imposition of court costs in

accordance with R.C. 2947.23(A)(1)." Weathers at ¶ 25.

       {¶ 35} Since our decision in Weathers, R.C. 2947.23 has been modified to provide,

              (A)(1)(a) In all criminal cases * * * the judge or magistrate shall
              include in the sentence the costs of prosecution, including any
              costs under [R.C.] 2947.23, and render a judgment against the
              defendant for such costs. If the judge or magistrate imposes a
              community control sanction or other nonresidential sanction, the
              judge or magistrate, when imposing the sanction, shall notify the
              defendant of both of the following:

              (i) If the defendant fails to pay that judgment or fails to timely
              make payments towards that judgment under a payment
              schedule approved by the court, the court may order the
              defendant to perform community service * * *.

              (ii) If the court orders the defendant to perform the community
              service, the defendant will receive credit upon the judgment at
              the specified hourly credit rate per hour of community service
              performed, and each hour of community service performed will
              reduce the judgment by that amount.

(Emphasis added.)

       {¶ 36} The statute has also been amended regarding the effect of failing to notify a

defendant of the possibility of performing community service to pay these costs.

              The failure of a judge or magistrate to notify the defendant
              pursuant to division (A)(1)(a) of this section does not negate or
              limit the authority of the court to order the defendant to perform
              community service if the defendant fails to pay the judgment
              described in that division or to timely make payments toward that
              judgment under an approved payment plan.

R.C. 2947.23(A)(1)(b).

       {¶ 37} Lane was sentenced after R.C. 2947.23 was amended and therefore he is

under the current version of the statute. Lane's sentence included a prison term and court

costs. Because Lane was sentenced to a prison term rather than community control or any

other nonresidential sanction, the trial court was not required to notify Lane that he might be

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required to perform community service in lieu of paying court costs. See State v. Bailey, 1st

Dist. Hamilton Nos. C-130245 and C-130246, 2013-Ohio-5512, ¶ 6; State v. Accoriniti, 12th

Dist. Butler Nos. CA2012-10-205 and CA2012-11-221, 2013-Ohio-4429, fn 1. Additionally,

even if the trial court had sentenced Lane to a community control sanction and failed to notify

him that he could be ordered to perform community service in lieu of paying court costs, this

would not affect the ability of the court to require Lane to perform community service.

       {¶ 38} Lane's third assignment of error is overruled.

       {¶ 39} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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