[Cite as State v. Fannin, 2011-Ohio-3211.]


                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   William B. Hoffman, P.J.
                                              :   Julie A. Edwards, J.
                         Plaintiff-Appellee   :   Patricia A. Delaney, J.
                                              :
-vs-                                          :   Case No. 10CAA030028
                                              :
                                              :
TOBIAS D. FANNIN                              :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Delaware
                                                   County Court of Common Pleas Case
                                                   No. 08-CR-I-09-0461

JUDGMENT:                                          Affirmed In Part and Reversed and
                                                   Remanded In Part

DATE OF JUDGMENT ENTRY:                            June 22, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DAVID YOST                                         WILLIAM T. CRAMER
Delaware County Prosecuting Attorney               470 Olde Worthington Road, Ste. 200
Delaware County, Ohio                              Westerville, Ohio 43082


BY: BRENDAN INSCHO
Assistant Prosecuting Attorney
140 North Sandusky Street
Delaware, Ohio 43015
[Cite as State v. Fannin, 2011-Ohio-3211.]


Edwards, J.

        {¶1}     Appellant, Tobias Fannin, appeals a judgment of the Delaware County

Common Pleas Court convicting him of seven counts of burglary (R.C. 2911.12(A)(3)),

seven counts of theft (R.C. 2913.02(A)(1)), and ten counts of receiving stolen property

(R.C. 2913.51). Appellee is the State of Ohio.

                                   STATEMENT OF FACTS AND CASE

        {¶2}     On July 26, 2008, a daytime burglary occurred at the residence of the

Rigney family in Delaware, Ohio, while the Rigneys were at a picnic. There were no

signs of forced entry; however, the Rigneys’ daughter admitted to possibly leaving the

front door unlocked. The only room in the house that appeared to be untouched was

the bedroom of the Rigneys’ teenage son. Bedroom dressers were emptied on the floor

and desk drawers in their home office had been gone through. Three laptop computers,

an X-box game system, two televisions and several DVDs were taken from the house.

        {¶3}     A daytime burglary occurred at the home of Alice Walter in Delaware on

July 27, 2008.        Ms. Walter went to the grocery store around 11 am, and when she

returned an hour later she discovered that a glass panel in a side door of her home had

been broken with a brick. Drawers were pulled out and emptied on the floor throughout

the house and a 32-inch flat screen TV, digital camera, telephone and jewelry were

missing.

        {¶4}     On the same day, a burglary took place at the Wolford home in Delaware.

A French door was kicked open to gain access to the home. A desktop computer, two

laptop computers, a digital video camera, a Playstation 2 game system with 40 games,
Delaware County App. Case No. 10CAA030028                                             3


and 50-60 DVD’s were stolen. A small fire safe was broken open using a dumbbell and

the papers were scattered.

      {¶5}   Gail Hoskins returned to her home on August 2, 2008, to discover

someone had gained access to her home by breaking a window on the back side of the

house. Cabinet doors were opened and items scattered on the floor. An entertainment

center was pulled off the wall. The Hoskins home was missing a 42 inch plasma screen

television, a DVR recorder, a DVD burner, a DVD player, a stereo receiver and

speakers, remote controls, a ring, suitcases, and a professional camera.

      {¶6}   On August 4, 2008, the Tracewell residence was broken into while the

homeowners were at work. The home was entered through a first floor window in the

rear of the house. The window was not fully closed and the perpetrator pushed in the

screen to gain access to the home. Dozens of DVDs and CDs were missing from the

home, including CDs that were unique concert recordings. The perpetrators also stole

gym bags, credit cards, an I-pad, a laptop, a digital camera and docking station, and a

jar full of pennies. A neighbor reported to police that he saw a heavy-set bald man with

a bushy goatee ring the Tracewells’ doorbell, then walk around to the back of the house.

      {¶7}   The same day a burglary occurred at the home of the Rosenbaums.          A

pane of glass in the back door was broken to gain entry to the home. From the home

the burglar stole CDs, DVDs, jewelry, luggage, a flat screen TV, a laptop computer, a

new I-Pod, a digital camera and a bank debit card. A 1993 Mazda RX-7 automobile

was stolen from the garage.

      {¶8}   On August 6, 2008, the home of Judge David Cain was broken into while

the Cains were on vacation. The Cains’ daughter stopped to check on the house and
Delaware County App. Case No. 10CAA030028                                            4


discovered that a window panel had been broken by a concrete rabbit. A briefcase,

jewelry, $600.00 in cash and a credit card were stolen from the home.

      {¶9}   When the Rosenbaums called to cancel their credit card, they discovered

it had already been used at a Kroger grocery store in Franklin County, a Speedway gas

station in Delaware, and a Kroger store in Delaware. Security videos showed a person

resembling appellant using the card at all three locations and showed the same person

getting gas in what appeared to be the Rosenbaums’ green Mazda. The Cains’ credit

card had also been used at a Kroger grocery and at a Get-Go gas station in Delaware.

Security videos showed a person who looked like appellant using the card and putting

gas in a red Ford Ranger pickup truck.

      {¶10} The clerk at the Kroger in Delaware was able to pick appellant from a

photo lineup. She remembered appellant because he attempted to purchase a large

number of items at the U-scan line, which the clerk was monitoring. Appellant’s credit

card was initially rejected.   Appellant then left the store and the clerk returned his

groceries to the shelves. Appellant returned a second time and had the clerk continue

to void items from his bill until it was down to an amount he could pay for in cash. In

addition, the Tracewells’ neighbor identified a photograph of appellant as the man he

saw at their home on the day of the burglary.

      {¶11} Police investigation centered in on the Cash To Go pawnshop in

Columbus. Pawn tickets signed by appellant listed property stolen from the Cain and

Rosbenbaum residences, and the Rosenbaums’ green Mazda was abandoned outside

the pawnshop.
Delaware County App. Case No. 10CAA030028                                                5


      {¶12} Police in Delaware received a call concerning an unwanted person in a

residence at 566 Jefferson Dr., within a short distance of three of the burglaries. Officer

Aaron Chance Kuck responded to the call and spoke with Jessica Gladden. The person

Jessica wanted removed from her home was appellant, but appellant had left before

police arrived.   Officer Kuck noted a number of high-end electronic items in the

residence, some matching the descriptions of property stolen in the rash of burglaries.

Eventually police were able to trace pieces of property stolen from the Rigney, Walter

and Wolford residences to Gladden’s home.

      {¶13} Appellant was apprehended in the morning of August 13, 2008, attempting

to break into a home near the Cain and Hoskins residences. However, the owner was

home, and when she saw appellant taking her mail, she confronted him. She called the

police and appellant was apprehended a short distance away.

      {¶14} Following his arrest, appellant was in jail with Romero Bing. Appellant told

Bing that he had burglarized several houses, including a judge’s house. He told Bing he

would knock on the door to see if anyone was home, and if not, he would force entry.

He told Bing he took televisions and jewelry. He admitted to taking a small green

Honda or Nissan and leaving it in a pawnshop parking lot because police were nearby.

He also told Bing he sold some of the goods to a pawn shop and gave some to his

girlfriend, who he had been living with. Appellant also described how he changed his

appearance by growing out his hair.

      {¶15} Appellant was indicted by the Delaware County Grand Jury with seven

counts of burglary (R.C. 2911.12(A)(3)), seven counts of theft (R.C. 2913.02(A)(1)), and
Delaware County App. Case No. 10CAA030028                                                 6


ten counts of receiving stolen property (R.C. 2913.51). The case proceeded to jury trial

in the Delaware County Common Pleas Court.

         {¶16} At trial, Jessica Gladden testified that appellant lived with her for about a

month and a half in the summer of 2008. He would bring computers, televisions and

other items home. He told Gladden that he took the items. He used her red pickup

truck because he was unemployed. Although Gladden knew the items were stolen,

Gladden paid appellant $300.00 for a Dell laptop and her aunt paid him $200.00 for a

flat screen television. Appellant told Gladden he took some of the items to a man

named “Roger” in Toledo.        Roger would then send appellant money orders for the

items.

         {¶17} Appellant was convicted on all charges.         He was sentenced to an

aggregate prison term of 36 years, four months. He assigns five errors on appeal:

         {¶18} “I. APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE

ASSISTANCE         OF    COUNSEL       UNDER       THE    SIXTH     AND     FOURTEENTH

AMENDMENTS, AND SECTION 10, ARTICLE I, OHIO CONSTITUTION BECAUSE

TRIAL COUNSEL FAILED TO CHALLENGE THE JOINDER OF THE UNRELATED

BURGLARY CHARGES.

         {¶19} “II. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTION

TO USE APPELLANT’S SUBSEQUENT ATTEMPTED BURGLARY CONVICTION AS

PROOF OF IDENTITY UNDER EVID.R. 404(B).

         {¶20} “III. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION

TO ELICIT PREJUDICIAL EVIDENCE THAT THE VICTIM OF THE ATTEMPTED

BURGLARY WAS A SICK, ELDERLY WOMAN, WHO WAS NERVOUS AND SCARED.
Delaware County App. Case No. 10CAA030028                                             7


       {¶21} “IV. APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE

ASSISTANCE        OF    COUNSEL      UNDER        THE   SIXTH    AND     FOURTEENTH

AMENDMENTS, AND SECTION 10, ARTICLE I, OHIO CONSTITUTION BECAUSE

TRIAL COUNSEL NEEDLESSLY ELICITED TESTIMONY THAT APPELLANT HAD

THREATENED TO KILL A WITNESS, HER HUSBAND, AND HER CHILDREN.

       {¶22} “V. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO DUE

PROCESS AND PROTECTION FROM DOUBLE JEOPARDY UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS AND SECTIONS 10 & 16, ARTICLE I, OHIO

CONSTITUTION WHEN IT IMPOSED SENTENCE FOR THE ALLIED OFFENSES OF

THEFT AND RECEIVING STOLEN PROPERTY IN REGARD TO THE SAME

PROPERTY.”

                                              I

       {¶23} In his first assignment of error, appellant argues counsel was ineffective

for failing to move to sever.

       {¶24} A properly licensed attorney is presumed competent. State v. Hamblin

(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.    Strickland v. Washington (1984),

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136. In other words, appellant must show that counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.
Delaware County App. Case No. 10CAA030028                                               8


       {¶25} Ohio Criminal Rule 8 (A) governs joinder of offenses, and provides:

       {¶26} “Two or more offenses may be charged in the same indictment,

information or complaint in a separate count for each offense if the offenses charged,

whether felonies or misdemeanors or both, are of the same or similar character, or are

based on the same act or transaction, or are based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan, or are part of a

course of criminal conduct.”

       {¶27} Criminal Rule 14 governs relief from prejudicial joinder, and states:

       {¶28} “If it appears that a defendant or the state is prejudiced by a joinder of

offenses or of defendants in an indictment, information, or complaint, or by such joinder

for trial together of indictments, informations or complaints, the court shall order an

election or separate trial of counts, grant a severance of defendants, or provide such

other relief as justice requires. In ruling on a motion by a defendant for severance, the

court shall order the prosecuting attorney to deliver to the court for inspection pursuant

to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the

state intends to introduce in evidence at the trial.”

       {¶29} Joinder is liberally permitted to conserve judicial resources, reduce the

chance of incongruous results in successive trials, and diminish inconvenience to the

witnesses. State v. Schaim (1992), 65 Ohio St.3d 51. Joinder of offenses solely

because they are of the same or similar character creates a greater risk of prejudice to

the defendant, while the benefits from consolidation are reduced because “unrelated

offenses normally involve different times, separate locations, and distinct sets of

witnesses and victims.” Id. When a defendant claims he or she was prejudiced by the
Delaware County App. Case No. 10CAA030028                                                 9


joinder of multiple offenses, the court must determine (1) whether evidence of the other

crimes would be admissible even if the counts were severed; and (2) if not, whether the

evidence of each crime is simple and distinct. Schaim, supra, at 59. The defendant

bears the burden of proving prejudice and that the trial court abused its discretion in

denying severance. Id.

       {¶30} Appellant argues that he was prejudiced by joinder of the offenses

because the evidence was stronger on the counts related to the Cains and

Rosenbaums than on the counts related to the other victims.

       {¶31} Appellant does not argue on appeal that any of the convictions were

against the manifest weight or sufficiency of the evidence. The evidence related to each

victim was simple and distinct and presented in a way to ensure that the jury understood

the separate victims and charges. Prior to opening statements, the court gave the jury

a “cheat sheet” which listed the names of the property owners, their addresses, and the

counts that related to each victim. Tr. 16. In opening statement, the State explained to

the jury that there were seven different victims who would testify about responding to

the scene, the condition they found their homes in and the layout of their homes. Tr. 41.

The prosecutor explained that there would then be a second set of witnesses who

would talk about the investigation and how the State could tie the crimes to the

appellant. Tr. 41-42. Id. The prosecutor stated, “Yes, there are a number of charges,

but if you all listen closely and if we just follow each of the witnesses it is really not a

terribly complicated case.” Tr. 41.

       {¶32} The state then presented the testimony of each of the victims. Each victim

was followed by the testimony of the officer who responded to that crime scene.
Delaware County App. Case No. 10CAA030028                                                10


Following the presentation of the victims’ testimony, the testimony of the investigating

officers and others who could connect appellant to the crimes was presented. Finally,

the court instructed the jury that each of the charges set forth in the indictment

constitutes a separate and distinct matter, and the jury must consider each charge and

the evidence applicable to each charge separately. Tr. 950-51. The judge further

explained that the jury’s finding as to each charge must be uninfluenced by their verdict

on the other charges. Tr. 951.

       {¶33} Appellant has not demonstrated that counsel was ineffective for failing to

move to sever, as a severance motion could properly have been overruled by the trial

court. The first assignment of error is overruled.

                                                II

       {¶34} In his second assignment of error, appellant argues that the court erred in

admitting evidence of his attempted burglary on August 13, 2008, as proof of identity.

       {¶35} Officer Christopher Ruh testified that Mrs. Shirkey called the police to

report that a man had attempted to break into her home. She saw the man grab a piece

of mail out of her box and put it in his pocket. She told him to stop and put the mail

back. The man began walking down the street, where he was apprehended by Ruh.

Mrs. Shirkey identified appellant after police apprehended him.

       {¶36} The trial court gave a limiting instruction regarding the use of evidence

concerning the commission of a crime other than the offenses with which appellant was

charged, both before the testimony was presented and in the court’s final instructions.

Tr. 669, 882. The jury was instructed to consider the evidence only for the purpose of
Delaware County App. Case No. 10CAA030028                                              11


deciding whether it proves identity and not to prove appellant’s character or to show that

he acted in conformity with that character. Id.

      {¶37} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343. Any error in the admission of evidence must be analyzed under an abuse of

discretion standard of review. “The term ‘abuse of discretion’ implies that the court's

attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio

St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

      {¶38} Evid. R. 404(B) provides:

      {¶39} “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

      {¶40} Because Evid.R. 404(B) codifies an exception to the common law with

respect to evidence of other acts of wrongdoing, it must be construed against

admissibility, and the standard for determining admissibility of such evidence is strict.

See State v. Broom (1988), 40 Ohio St.3d 277, 281-282, 533 N.E.2d 682, citing State v.

Burson (1974), 38 Ohio St.2d 157, 158-159, 67 O.O.2d 174, 175, 311 N.E.2d 526, 528;

State v. DeMarco (1987), 31 Ohio St.3d 191, 194, 31 OBR 390, 392, 509 N.E.2d 1256,

1259. Neither the rule nor the statute contains the words “like” or “similar.” Id. at 282.

The rule and statute contemplate acts which may or may not be similar to the crime at

issue. Id. If the other act does in fact “tend to show” by substantial proof any of the
Delaware County App. Case No. 10CAA030028                                             12


things enumerated, including identity, then evidence of the other act may be admissible.

Id.

       {¶41} In the instant case, the evidence did not tend to show identity by

substantial proof. The attempted burglary bore a general resemblance to the charged

offenses only in that the crime occurred during the daytime and in the same

geographical area as some of the other burglaries. In the attempted burglary, appellant

was confronted when he took a piece of the victim’s mail, and he then left the residence.

In all the other burglaries, the homes were entered, electronic items were taken, and

belongings and papers were scattered throughout the house. We therefore find the

court erred in admitting this evidence under Evid. R. 404(B). However, we find any

error in its admission to be harmless.

       {¶42} Crim. R. 52(A) defines harmless error:

       {¶43} “Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.”

       {¶44} The test for determining whether the admission of inflammatory or

otherwise erroneous evidence is harmless requires the reviewing court to look at the

whole record, leaving out the disputed evidence, and then to decide whether there is

other substantial evidence to support the guilty verdict. State v. Riffle, Muskingum App.

No. 2007-0013, 2007-Ohio-5299 at ¶ 36-37 (Citing State v. Davis (1975), 44 Ohio

App.2d 335, 347, 338 N.E.2d 793).

       {¶45} In the instant case, the evidence concerning the attempted burglary

involved one witness over the course of a long trial. Evidence had been produced

concerning each of the other burglaries, the items taken, the course of the investigation
Delaware County App. Case No. 10CAA030028                                            13


leading to appellant, the items taken from Gladden’s apartment and linked back to the

victims, appellant’s admission to Gladden that he took the items and sold them through

a man named Roger in Toledo, appellant’s admissions in prison to Romero Bing,

appellant’s signature on pawn tickets in Columbus, and the surveillance videos showing

appellant using the credit cards taken from the Rosenbaum and Cain residences.

      {¶46} The second assignment of error is overruled.

                                              III

      {¶47} In his third assignment of error, appellant argues that the characterization

of the victim of appellant’s attempted robbery as an elderly woman who was nervous

and scared should have been excluded under Evid. R. 403(A), as its probative value

was outweighed by the danger of unfair prejudice.

      {¶48} The following colloquy occurred during the questioning of Officer Ruh:

      {¶49} “Q. Okay. Can you tell us what the homeowner, what was her demeanor

like when you arrived on the scene?

      {¶50} “A. She was - -

      {¶51} “MR. JONES: Objection.

      {¶52} “THE COURT: Overruled.

      {¶53} “MR. JONES: Relevance.

      {¶54} “THE COURT: You can go ahead and answer the question, Officer.

      {¶55} “THE WITNESS: She was nervous. She was scared. She hasn’t - - she’s

been sick so she was afraid, too, at the same time.

      {¶56} “Q. Is this an older lady?

      {¶57} “A. Yes.” Tr. 676.
Delaware County App. Case No. 10CAA030028                                              14


       {¶58} Evid. R. 403(A) provides:

       {¶59} “(A) Exclusion mandatory. Although relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.”

       {¶60} In assignment of error two, we found harmless error in admission of

evidence concerning the attempted burglary. Because we have found the court erred in

admitting this other acts evidence on the issue of identity, the court likewise erred in

admitting this evidence concerning the victim’s demeanor. However, we find any error

is harmless. The comments concerning the victim’s demeanor were short and of minor

consequence over the course of a long trial. She was not a victim in any of the cases

being tried, and there was no evidence that appellant knew that she was elderly and

sick and preyed on her because of her condition. Any error in admitting the description

of the victim’s mental and physical state was harmless.

       {¶61} The third assignment of error is overruled.

                                                IV

       {¶62} In the fourth assignment of error, appellant argues counsel was ineffective

for eliciting testimony from Jessica Gladden that appellant had threatened to kill her in

the past.

       {¶63} A properly licensed attorney is presumed competent. State v. Hamblin

(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.      Strickland v. Washington (1984),
Delaware County App. Case No. 10CAA030028                                             15

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136. In other words, appellant must show that counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶64} Jessica Gladden testified on direct examination that appellant attempted

to contact her around 10 times the night before her trial testimony, calling every 3-4

minutes. Tr. 182. She testified that she had previously changed her phone number

because appellant would not stop calling her. Tr. 183.

       {¶65} Counsel for appellant then elicited the following testimony from Gladden

on cross-examination:

       {¶66} “Q. You claimed on direct that Mr. Fannin threatened your life, didn’t you?

       {¶67} “A. Yes, sir.

       {¶68} “Q. And he made those threats, according to you, he made those threats

back in 2008; correct?

       {¶69} “A. 2009.

       {¶70} “Q. You told the detectives that he threatened your life back in 2008?

       {¶71} “A. When he told me that if I told on him that he would get me, is what I

told the cops.

       {¶72} “Q. You told them that back in 2008, didn’t you?

       {¶73} “A. Yeah. Summer of 2009 he found out I was pregnant, he told me that

he would kill me, my kids and he would kill my husband.
Delaware County App. Case No. 10CAA030028                                                16


       {¶74} “Q. You also told the detectives that he threatened your child’s life back in

2008, didn’t you? You told the detectives you had a voice mail of him making those

threats?

       {¶75} “A. Yes, sir.

       {¶76} “Q. You never gave them the voice mail?

       {¶77} “A. I gave them my phone when they asked for it.

       {¶78} “Q. But at the time he made those threats you never called the police

either, did you?

       {¶79} “A. No. I was scared to.

       {¶80} “Q. You never had him charged with anything as a result of that?

       {¶81} “A. No. I was afraid to.

       {¶82} “Q. So, you wasn’t (sic) afraid for your life, you were afraid for your child’s

life; correct?

       {¶83} “A. Yes.

       {¶84} “Q. You had a mountain of stolen property in your apartment; correct?

       {¶85} “A. Yes.

       {¶86} “Q. You never found it appropriate to go to the police with these facts?

       {¶87} “A. I was afraid to go to the police.” Tr. 201-202.

       {¶88} While counsel’s motivation for eliciting this evidence is unclear, it appears

counsel was attempting to demonstrate that Jessica Gladden was of questionable

character. Counsel also questioned appellant regarding her romantic entanglements

with other men while her husband was serving in the military, and her own involvement

with the stolen merchandise found in her apartment. Counsel may have been trying to
Delaware County App. Case No. 10CAA030028                                            17


undermine Gladden’s credibility by showing to the jury a woman who didn’t go to police

or sever the relationship with appellant when he threatened her child’s life, who

accepted a mountain of stolen goods in her residence and who cheated on a husband

serving in the military. Appellant has not demonstrated that counsel’s performance fell

below a standard of reasonable representation.

      {¶89} Appellant has not demonstrated a reasonable probability of a change in

the outcome had counsel not questioned Gladden regarding threats appellant made

against her and her family. While Gladden was a key witness in that she testified that

appellant admitted to taking the items found in her apartment, police were able to link

items found in the apartment to various burglaries under investigation.      The State

presented evidence that appellant admitted to burglarizing houses to Romero Bing,

giving specific details as to how and when he broke into homes. The state produced

evidence of appellant’s signature on pawn tickets in Columbus, and the surveillance

videos showed appellant using the credit cards taken from the Rosenbaum and Cain

residences. Appellant has not demonstrated a reasonable probability of a change in the

outcome had counsel not pursued this line of questioning with Gladden.

      {¶90} The fourth assignment of error is overruled.

                                              V

      {¶91} In his fifth assignment of error, appellant argues that the court erred in

sentencing him for both receiving stolen property and theft regarding the same property.

We agree.

      {¶92} R.C. 2941.25 provides:
Delaware County App. Case No. 10CAA030028                                             18


       {¶93} “(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.

       {¶94} “(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.”

       {¶95} In State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999-Ohio

291, the Ohio Supreme Court held that offenses are of similar import if the offenses

“correspond to such a degree that the commission of one crime will result in the

commission of the other.” Id. The Rance court further held that courts should compare

the statutory elements in the abstract. Id.

       {¶96} In further clarifying Rance, the Court, in State v. Cabrales, 118 Ohio St.3d

54, 886 N.E.2d 181, 2008-Ohio-1625, syllabus, instructed as follows:

       {¶97} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”
Delaware County App. Case No. 10CAA030028                                              19

       {¶98} According to Cabrales, the sentencing court, if it has initially determined

that two crimes are allied offenses of similar import, then proceeds to the second part of

the two-tiered test and determines whether the two crimes were committed separately

or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v. Blankenship (1988),

38 Ohio St.3d 116, 117, 526 N.E.2d 816.

       {¶99} This Court has referred to the Cabrales test as a “common sense

approach.” State v. Varney, Perry App. No. 08-CA-3, 2009-Ohio-207, ¶ 23. In State v.

Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182, 2010-Ohio-2 and State v. Williams, 124

Ohio St.3d 381, 922 N.E.2d 937, 2010-Ohio-147, the Ohio Supreme Court upheld its

Cabrales rationale in this arena.

       {¶100} In December of 2010, the Ohio Supreme Court expressly overruled Rance

to the extent that Rance calls for a comparison of statutory elements solely in the

abstract under R.C. 2941.25.        State v. Johnson, 2010-Ohio-6314, ¶44. 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.

       {¶101} Appellant was convicted of seven counts of theft as defined by R.C.

2913.02(A):

       {¶102} “(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:

       {¶103} “(1) Without the consent of the owner or person authorized to give

consent;”

       {¶104} R.C. 2913.51(A) defines receiving stolen property:
Delaware County App. Case No. 10CAA030028                                              20


       {¶105} “(A) No person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been obtained

through commission of a theft offense.”

       {¶106} This Court has previously found theft and receiving stolen property to be

allied offenses of similar import where the same property is the subject of both offenses:

       {¶107} “Under a Cabrales analysis, we find a defendant who steals an item will,

however briefly, also receive and retain the item, and may likely eventually dispose of it

as well. Whether the defendant keeps the item or not, his or her actions stem from the

original intent to benefit from taking another's property.” State v. Slager, Delaware App.

No. No. 08 CAA 11 0067, 2010-Ohio-1797, ¶20.

       {¶108} We similarly find under a Johnson analysis that considering appellant’s

conduct in this case, the offenses of receiving stolen property and theft were allied

offenses. Each of the charges of receiving stolen property related to an item or items of

property charged in the theft offenses.       Having stolen the items, appellant also

“received” the items within the definition of R.C. 2913.51.

       {¶109} The State argues that any error is cured because the court sentenced

appellant to concurrent terms of incarceration on each of the theft and receiving stolen

property counts; therefore, appellant is not prejudiced by the failure to merge the

convictions. However, the Ohio Supreme Court held in State v. Whitfield, 124 Ohio

St.3d 319, 922 N.E.2d 122, 2010-Ohio-2, that upon guilty verdicts on allied offenses, the

State must elect which of the offenses it chooses to seek sentencing for, and the court

must accept the state’s choice and merge the crimes into a single offense for purposes

of sentencing. Id. at ¶24. Therefore, appellant could not be sentenced separately on
Delaware County App. Case No. 10CAA030028                                               21


each count of theft and each count of receiving stolen property. Rather, the State is

required to elect on which offense it desires to seek sentencing.

       {¶110} Appellant's fifth assignment of error is sustained, and the matter is

remanded for the trial court to review merger of the offenses for sentencing regarding

Counts 1, 2, 4, 5, 7, 8, 10, 12, 14, 15, 17, 18, 19, 20, 22, 23, and 24, as provided by the

Ohio Supreme Court in Whitfield, supra.

       {¶111} The judgment of the Delaware County Common Pleas Court is reversed

and remanded for resentencing on the convictions for seven counts of theft and ten

counts of receiving stolen property. In all other respects, the judgment is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Delaney, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/r0216
[Cite as State v. Fannin, 2011-Ohio-3211.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
TOBIAS D. FANNIN                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 10CAA030028




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed in part, and

reversed and remanded in part. Costs assessed 50% to appellee and 50% to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
