 [Cite as State v. Boysel, 2014-Ohio-1272.]

                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 STEVEN S. BOYSEL, JR.

         Defendant-Appellant


 Appellate Case No.        2013-CA-78

 Trial Court Case Nos. 2012-CR-0738/
                                2013-CR-0066


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 28th day of March, 2014.

                                              ...........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, 4th Floor, P.O. Box 1608, Springfield, Ohio 45501
       Attorney for Plaintiff-Appellee

PATRICK D. WALSH, Atty. Reg. No. 0085482, P.O. Box 543, Springboro, Ohio 45066
     Attorney for Defendant-Appellant

                                              .............

WELBAUM, J.

                  {¶ 1}     In this case, we are asked to decide whether the trial court erred when it
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sentenced Appellant, Steven S. Boysel, Jr. According to Boysel, the trial court prejudicially

erred by failing to follow all applicable rules and regulations for sentencing, and by refusing to

merge the sentences. Boysel also contends that the trial court abused its discretion in imposing

sentence.

       {¶ 2}     We conclude that the trial court did not either commit error or abuse its

discretion in sentencing Boysel. Accordingly, the judgment of the trial court will be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 3}     On October 13, 2012, Steven Boysel was apprehended by a Wal-Mart employee

for shoplifting shaving razors from the store, which was located in Springfield, Ohio. When

authorities searched Boysel, they discovered that he was in possession of a concealed .25 caliber

Phoenix Arms handgun. At the time, Boysel was under a disability for a prior felony drug

trafficking conviction. The officers also discovered that Boysel was in possession of less than

one gram of heroin.

       {¶ 4}     On October 29, 2012, the Clark County Grand Jury indicted Boysel on eleven

counts, including various felony drug charges, and on charges of Carrying a Concealed Weapon,

Having a Weapon Under Disability, and Receiving Stolen Property. The indictment was filed in

Clark County Common Pleas Court Case No. 12-CR-0738. Subsequently, on January 28, 2013,

Boysel was indicted for Robbery (while possessing a deadly weapon), with a firearm

specification.   That indictment was filed in Clark County Common Pleas Court Case No.

13-CR-0066.

       {¶ 5}     The trial court consolidated the cases on August 5, 2013. Boysel then accepted
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a negotiated plea of guilty to the one count of Robbery, R.C. 2911.02(A)(1), (Felony 2), and the

one-year firearm specification, R.C. 2941.141, in Case No. 13-CR-0066. He also entered a plea

of guilty to one count of Having a Weapon Under Disability, R.C. 2923.13(A)(3), (Felony 3), and

Possession of Heroin, R.C. 2925.11(A), (Felony 5), in Case No. 12-CR-0738. As a result of the

plea, the other charges in both cases were dismissed. The guilty plea exposed Boysel to a

potential prison sentence of 13 years. Prior to sentencing Boysel, the trial court ordered a

pre-sentence investigation.

       {¶ 6}     On August 28, 2013, the trial court held a sentencing hearing. The Court noted

that Boysel was under community control supervision at the time of the offense for a prior felony

conviction.    Boysel also had a history of criminal convictions, and he had not responded

favorably to sanctions previously imposed for criminal convictions. Furthermore, while on

community control, Boysel had absconded to another state and had avoided supervision. The

court additionally commented that, based upon Boysel’s statements, Boysel had no genuine

remorse for committing the offenses. Finally, the court noted that Boysel scored high on the

Ohio Risk Assessment Survey. See August 28, 2013 Sentencing Hearing Tr., p. 9.

       {¶ 7}     After making these remarks, the trial court sentenced Boysel to an aggregate

seven-year prison sentence: three years for the Weapons Under Disability conviction, one year

for the Possession of Heroin conviction, six years for the Robbery conviction, and one year for

the firearm specification. The court ordered that all sentences be served concurrently, except the

mandatory consecutive sentence for the firearm specification. Sentencing Tr., pp. 9-11.

                     I. FIRST and SECOND ASSIGNMENTS OF ERROR

       {¶ 8}     Boysel’s First Assignment of Error states that:
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                The trial court failed to follow all applicable rules and regulations

       regarding the felony sentencing of Mr. Boysel.

       {¶ 9}      Boysel’s Second Assignment of Error states that:

                The trial court abused its discretion in the sentencing of Mr. Boysel.

       {¶ 10}     For purposes of convenience, we will consider these two interrelated

assignments of error together. As an initial matter, we note that the standard for reviewing

criminal sentences is explained in State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575,

25576, 2013-Ohio-5759, as follows:

                In order to be consistent with the approach of other Ohio appellate districts

       that have already considered this issue in light of H.B. No. 86, we will no longer

       apply the two-part test in Kalish when reviewing felony sentences controlled by

       H.B. 86. From now on we will use the standard of review set forth in R.C.

       2953.08(G)(2).

                R.C. 2953.08(G)(2) states that “[t]he appellate court may increase, reduce,

       or otherwise modify a sentence that is appealed * * * or may vacate the sentence

       and remand the matter to the sentencing court for resentencing.” The statute also

       explicitly states that “[t]he appellate court's standard for review is not whether the

       sentencing court abused its discretion.” Instead, the appellate court may take any

       action authorized under R.C. 2953.08(G)(2) if the appellate court “clearly and

       convincingly” finds either of the following:

                (a) That 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
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       2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any,

       is relevant;

                (b)   That   the   sentence   is   otherwise    contrary   to     law.   R.C.

       2953.08(G)(2)(a)-(b).

                It is important to note “that the clear and convincing standard used by R.C.

       2953.08(G)(2) is written in the negative. It does not say that the trial judge must

       have clear and convincing evidence to support its findings. Instead, it is the court

       of appeals that must clearly and convincingly find that the record does not support

       the court's findings.” [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453 [ (8th

       Dist.) ], at ¶ 21. “In other words, the restriction is on the appellate court, not the

       trial judge. This is an extremely deferential standard of review.” Rodeffer at ¶

       29-31, discussing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

       N.E.2d 124.

       {¶ 11}     “Furthermore, ‘[a]lthough Kalish no longer provides the framework for

reviewing felony sentences, it does provide * * * adequate guidance for determining whether a

sentence is clearly and convincingly contrary to law.’ * * * According to Kalish, a sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after expressly

stating that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11,

as well as the factors in R.C. 2929.12.” (Citations omitted). Rodeffer at ¶ 32.

       {¶ 12}     As was noted above, the trial court expressed its reasons for the sentences

imposed. The court also stated in its journal entry that it had considered the principles and

purposes of sentencing under R.C. 2929.11, and had balanced the seriousness and recidivism
                                                                                           6


factors under R.C. 2929.12. In addition, the sentences were within the statutory range.

       {¶ 13}    The trial court is not required to state on the record the statutory factors it

considered before sentencing. State v. Shively, 2d Dist. Clark No. 07-CA-74, 2008-Ohio-3716, ¶

6. Unless the record shows that the court failed to consider the factors, or that the sentence is

“strikingly inconsistent” with the factors, the court is presumed to have considered the statutory

factors if the sentence is within the statutory range. (Citations omitted.) State v. Rutherford, 2d

Dist. Champaign No. 08-CA-11, 2009-Ohio-2071, ¶ 34. Furthermore, if the record is silent

regarding the principles and purposes of sentencing, “we generally presume that the trial court

complied with its duty to consider the factors set forth in R.C. 2929.11 and R.C. 2929.12.”

(Citations omitted.) State v. Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 28.

       {¶ 14}    In the case before us, the trial court ordered all the sentences to be served

concurrently, except the mandatory consecutive sentence that applied to the one-year firearm

specification. We do not clearly and convincingly find that the record fails to support the court's

findings or that the sentence is otherwise contrary to law. Additionally, even if Rodeffer failed

to apply, we would find no abuse of discretion or other error warranting reversal. Accordingly,

we overrule Boysel’s first and second assignments of error.

                            III. THIRD ASSIGNMENT OF ERROR

       {¶ 15}    Boysel’s third assignment of error states that:

                The trial court erred in violation of R.C.2941.25 in failing to find the

       offenses for which Mr. Boysel was convicted as allied offenses and in failing to

       merge the sentences of Mr. Boysel.

       {¶ 16}    Recently, we outlined the applicable law on this subject when we stated that:
                                                                                      7


        In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Supreme Court of Ohio held that “[w]hen determining whether two

offenses are allied offenses of similar import subject to merger under R.C.

2941.25, the conduct of the accused must be considered.”              Id. at syllabus

[overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999)]. In

Johnson, the Supreme Court of Ohio also outlined a two-part framework for

evaluating merger issues.

        The first consideration “is whether it is possible to commit one offense and

commit the other with the same conduct * * *.” (Citation omitted. Emphasis in

original.) Id. at ¶ 48. “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.” Id.

        If the first prong is satisfied, the nest consideration is “whether the offense

were committed by the same conduct, i.e., ‘a single act, committed with a single

state of mind.’ ”    Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). However,

“if the offenses are committed separately, or if the defendant has separate animus

for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.”

 Id. at ¶ 51.

        The Supreme Court of Ohio has interpreted the term “animus” to mean

“purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d

126, 131, 397 N.E.2d 1345 (1979) * * * . “Like all mental states, animus is often
                                                                                          8


       difficult to prove directly, but must be inferred from the surrounding

       circumstances. * * * Where an individual’s immediate motive involves the

       commission of one offense, but in the course of committing that crime he must, A

       priori, commit another, then he may well possess but a single animus, and in that

       event may be convicted of only one crime.” Logan at 131. “If the defendant

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

       identical for both offenses.”       State v. Lewis, 12th Dist. Clinton No.

       CA2008-10-045, 2012-Ohio-885, ¶ 13.

State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 37-40.

       {¶ 17}   In applying the Johnson test to the case before us, we find that it is possible to

commit both offenses at issue with the same conduct. Next, we are required to determine

whether the offenses were committed by the same conduct, with a single state of mind, rather

than committed separately or with a separate animus for each offense.

       {¶ 18} In this regard, we note that Boysel possessed the firearm when he was

apprehended in the store. The record is devoid of any evidence as to when Boysel acquired the

firearm. In the absence of any affirmative evidence to the contrary, we may infer that Boysel

possessed the firearm when he entered Wal-Mart. In a similar situation we noted that:

       * * * “[T]he defendant bears the burden to prove entitlement to merger.”      State

       v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134, citing State

       v. Thomas, 10th Dist. Franklin No. 10AP-557, 2011-Ohio-1191, ¶ 16. Here, [the

       defendant] failed to meet his burden of proof, as there is nothing in the record

       demonstrating that the felonious assault and weapons under disability offenses
                                                                                              9


       were committed with the same animus as in [State v. Fairman, 2d Dist.

       Montgomery No. 24299, 2011-Ohio-6489].               Without any evidence to the

       contrary, we conclude that Grissom’s choice to possess a gun while under

       disability was separate and distinct from his choice to fire the gun at Sammons.

       Accordingly, the offenses are not allied offenses of similar import subject to

       merger under R.C. 2941.25.

Grissom at ¶ 44.

       {¶ 19}      In a related context, the Eighth District Court of Appeals has stressed that “the

‘animus of having a weapon under disability is making a conscious choice to possess a weapon.

[The defendant] necessarily acquired the guns sometime prior to committing the other crimes.

The fact that he then used the weapons to commit the other crimes does not absolve [the

defendant] of the criminal liability that arises solely from his decision to illegally possess the

weapons.’ ” State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 19, quoting

State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 39. (Other citation omitted.)

 See, also, State v. Brown, 3rd Dist. Allen No. 1-12-33, 2013-Ohio-854, ¶ 18 (continued

possession of a firearm after commission of a crime demonstrates a separate animus).

       {¶ 20}      Boysel’s intention to possess the firearm occurred prior to his entering the store.

 He then committed robbery by shoplifting the razors inside the store. We have held that when

one offense is completed prior to the completion of another offense during the defendant’s course

of conduct, those offenses are separate acts. State v. Mooty, 2d Dist. Montgomery No. 25669,

2014-Ohio-733, ¶ 49, 51, 55, 58, 64, and 66. (Endangering Children, Complicity to Felonious

Assault, and Permitting Child Abuse offenses “were committed separately and with a separate
                                                                                        10


animus as to each”).        See, also, State v. Turner, 2d Dist. Montgomery No. 24421,

2011-Ohio-6714, ¶ 24 (Burglary and Robbery were committed separately).            In Turner, the

offender committed the burglary upon forcing his way into the victims’ home, and committed

robbery when he beat and robbed the occupants. In this regard, we stated that:

        Because one offense was complete 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.

Turner at ¶ 24.

        {¶ 21}    The crime of Having a Weapon Under Disability was completed prior to the

time Boysel entered the store. Accordingly, we find that Boysel committed the two crimes with

different animuses.

        {¶ 22}    Based on the preceding discussion, Boysel’s third assignment of error is

overruled.



                                         IV. Conclusion

        {¶ 23}    All of Boysel’s assignments of error having been overruled, the judgment of the

trial court is affirmed.




                                         .............
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HALL, J., concurs.

FROELICH, P.J., concurs in judgment only.

       Given my concurring opinion in Rodeffer, I concur in judgment only.




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Lisa M. Fannin
Patrick D. Walsh
Hon. Richard J. O’Neill
