[Cite as State v. Shepherd, 2012-Ohio-736.]




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

STATE OF OHIO                                    :
                                                 :     Appellate Case No. 24656
        Plaintiff-Appellee                       :
                                                 :     Trial Court Case No. 2011-CR-936/3
v.                                               :
                                                 :
WILLIAM R. SHEPHERD                              :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
        Defendant-Appellant               :
                                                 :
                                              ...........

                                              OPINION

                            Rendered on the 24th day of February, 2012.

                                              ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GARY C. SCHAENGOLD, Atty. Reg. #0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
      Attorney for Defendant-Appellant

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

HALL, J.

                {¶ 1} William R. Shepherd appeals from his conviction and sentence

following a guilty plea to fifth-degree felony charges of breaking-and-entering and vandalism.

                {¶ 2} In his sole assignment of error, Shepherd contends the trial court erred
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in imposing separate sentences for the two crimes where they were allied offenses of similar

import.

                 {¶ 3} The record reflects that Shepherd and two companions were arrested

while breaking into the C&D Drive-Thru to steal cigarettes. After his arrest, Shepherd entered

guilty pleas to the charges set forth above. Prior to sentencing, he raised an allied-offense

argument under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. To

resolve the issue, the parties stipulated to the facts in an offense report. After reviewing the

report, the trial court held that breaking-and-entering and vandalism were not allied offenses of

similar import in this case. The trial court imposed concurrent, five-year terms of community

control and other sanctions. This appeal followed.

                 {¶ 4} The only issue before us is whether the trial court erred in rejecting

Shepherd’s allied-offense argument. In Johnson, the Ohio Supreme Court announced a new

test for determining when offenses are allied offenses of similar import that must be merged

pursuant to R.C. 2941.25. Johnson held: “When 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. It explained:

                 Under R.C. 2941.25, the court must determine prior to sentencing

          whether the offenses were committed by the same conduct. Thus, the court

          need not perform any hypothetical or abstract comparison of the offenses at

          issue in order to conclude that the offenses are subject to merger.

                 In determining whether offenses are allied offenses of similar import

          under R.C. 2941.25(A), the question is whether it is possible to commit one
                                                                                           3


       offense and commit the other 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.

                 Conversely, if the court determines that the commission of one offense

       will never result in the commission of the other, or 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 ¶47-51 (citations and quotations omitted).

                 {¶ 5} In the present case, Shepherd was convicted of breaking-and-entering in

violation of R.C. 2911.13(A), which prohibits trespassing by force in an unoccupied structure

with the purpose to commit a theft offense. He also was convicted of vandalism in violation of

R.C. 2909.05(B)(1)(A), which prohibits causing physical harm to another’s property where

the property is used in the owner’s business and where the value of the property, or the amount

of the harm, exceeds the requisite dollar amount. At the time of Shepherd’s offense the dollar

amount was $500.
                                                                                              4


               {¶ 6} Shepherd argues that his breaking-and-entering and vandalism

convictions both involved the same conduct committed with single state of mind. In particular,

he claims both convictions were based on his act of prying open an exterior door and breaking

the glass of an interior door for the purpose of stealing cigarettes. As a result, he contends the

trial court should have merged the two offenses.

               {¶ 7} Upon review, we are unpersuaded by Shepherd’s argument. We do not

dispute that his breaking-and-entering conviction was based on his forcible entry into the

business by prying open an exterior door and breaking the glass of an interior door. If the

vandalism conviction was based on the damage to these doors, we would be inclined to agree

with Shepherd that the two offenses involved the same conduct. But the record contains

evidence of physical harm to property inside the business beyond the damage to the doors.

               {¶ 8} The stipulated offense report indicates that a rear office inside the

business had been ransacked, computers had been knocked over, and a metal screwdriver had

been wedged into a cash register. In light of this evidence, the record supports a finding that

the breaking-and-entering offense was complete when Shepherd forcibly trespassed by

breaking through two doors with the intent to steal something. The record further supports a

finding that the vandalism offense involved separate conduct, namely damaging physical

property after entering the business. Cf. State v. Turner, 2d Dist. Montgomery App. No.

24421, 2011-Ohio-6714, ¶24 (“In this case, when Defendant, armed with a shotgun, forced his

way into Gulley’s apartment, intending to steal drugs and money from Gulley, the aggravated

burglary offense was complete. * * * When Defendant, once inside, thereafter held Gulley at

gunpoint while demanding drugs and money and stealing Gulley’s television, a new, separate
                                                                                          5


crime, aggravated robbery, arose, which was committed separately from the completed

aggravated burglary offense. * * * 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.”).

               {¶ 9} Although the stipulated offense report does not indicate the dollar value

of the property at issue, Shepherd pled guilty to violating R.C. 2909.05(B)(1)(A) and “[a]

criminal defendant has the burden of establishing his entitlement to merger of offenses

pursuant to the allied-offense statute.” State v. Wesseling, 1st Dist. Hamilton App. No.

C-110193, 2011-Ohio-5882, ¶11, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d

870 (1987). On the record before us, Shepherd failed to satisfy that burden. As a result, the

trial court did not err in rejecting his allied-offense argument.

               {¶ 10} The assignment of error is overruled, and the judgment of the

Montgomery County Common Pleas Court is affirmed.

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

FAIN and DONOVAN, JJ., concur.



Copies mailed to:

Mathias H. Heck
R. Lynn Nothstine
Gary C. Schaengold
Hon. Frances E. McGee
