[Cite as State v. Hargrove, 2014-Ohio-1919.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                 Plaintiff-Appellee,            :

v.                                              :                   No. 13AP-615
                                                                 (C.P.C. No. 12CR-2820)
John W. Hargrove,                               :
                                                            (REGULAR CALENDAR)
                 Defendant-Appellant.           :


                                         D E C I S I O N

                                       Rendered on May 6, 2014


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Todd W. Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

T. BRYANT, J.
        {¶ 1} Defendant-appellant, John W. Hargrove, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding appellant guilty of one count of theft, a violation of R.C.
2913.02(A)(3), a felony of the fifth degree, and one count of solicitation fraud, a violation
of R.C. 1716.14(A)(1), a felony of the fourth degree.
        {¶ 2} Both counts against appellant arise from his fund-raising activities on
behalf of a purported veteran's organization. Testimony at trial established that appellant
registered the trade name Ohio Veteran's Source with the Ohio Secretary of State, but
never registered the name as a charitable organization.            Appellant established three
checking accounts with Huntington Bank in the name of Ohio Veteran's Source. He then
engaged in telephone solicitations, mostly from individuals, and mostly procuring small
donations. Appellant told potential contributors that his plan for the organization was to
produce an informational newsletter to assist veterans in need of assistance to find
No. 13AP-615                                                                          2


housing, employment, or medical treatment. He then used the contributions for his own
purposes and never produced the planned newsletter, although appellant stated at trial
that he was only prevented from producing the newsletter by his intervening arrest. The
state presented evidence of multiple solicitations, including the in-court testimony of
contributing victims.
       {¶ 3} The trial court refused to merge the two convictions for purposes of
sentencing, and sentenced appellant to a 12-month term on the theft offense, and 18
months on the solicitation fraud offense.       Appellant stipulated that he had a prior
conviction in 2007 for a similar solicitation fraud offense.
       {¶ 4} Appellant brings the following two assignments of error on appeal:
              I. WHETHER OR NOT THE TRIAL COURT ERRED TO THE
              PREJUDICE OF APPELLANT BY IMPOSING SENTENCES
              FOR PROHIBITED ACTS AND PRACTICES AND THEFT AS
              THOSE OFFENSES WERE ALLIED OFFENSES OF SIMILAR
              IMPORT COMMITTED WITH A SINGLE ANIMUS. THE
              TRIAL COURT FURTHER ERRED TO THE PREJUDICE OF
              APPELLANT BY NOT DIRECTING THE STATE TO ELECT
              ON WHICH OFFENSE CONVICTION WOULD BE
              ENTERED AND SENTENCE PRONOUNCED.

              II. WHETHER OR NOT THE TRIAL COURT ERRED TO
              THE PREJUDICE OF APPELLANT BY IMPROPERLY
              SENTENCING HIM TO CONSECUTIVE TERMS OF
              INCARCERATION IN CONTRAVENTION OF OHIO'S
              SENTENCING STATUTES.

       {¶ 5} Appellant's first assignment of error addresses the trial court's refusal to
merge the two charged offenses as allied offenses of similar import committed with a
single animus. R.C. 2941.25 governs the treatment of such allied offenses:
              (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.
No. 13AP-615                                                                              3



In considering pursuant to the statute whether offenses are allied offenses of similar
import and subject to merger, "the question is whether it is possible to commit one
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
conduct of the defendant constituting the commission of one offense constitutes the
commission of the other, then the offenses are of similar import." State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, ¶ 48. If the 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.' " Id. at ¶ 49,
quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the offenses are
committed separately, or if the defendant has a separate animus for each offense, then the
offenses will not merge under R.C. 2941.25(B). Id. at ¶ 51. Conversely, if the offenses are
committed by the same conduct with a single animus, the offenses will merge. Id. at ¶ 50.
       {¶ 6} We note that the question of whether a violation of R.C. 1716.14 (prohibited
acts and practices in the course of charitable solicitations) and a related violation of R.C.
2913.02 (theft) constitute allied offenses of similar import appears to be a matter of first
impression before Ohio appellate courts, at least as a disputed issue assessed pursuant to
Johnson. This is because, in the only recent decision on point, the pre-Johnson case of
State v. DeLong, 2d. Dist. No. 20656, 2005-Ohio-1905, the court affirmed, without
discussion, the trial court’s failure to merge these two crimes. There is no indication that
the question was contested on appeal, and the case thus provides no guidance beyond its
bare holding.
       {¶ 7}    For the reasons given below, we conclude that these two offenses as
committed in the present case are not allied offenses because the offenses do not
"correspond to such a degree that conduct of the defendant constituting the commission
of one offense constitutes the commission of the other." Johnson at ¶ 48. We conclude, as
did the trial court, that the solicitation fraud in this case, which consisted of deceptive
promises and assurances made while engaging in telephone solicitation, constitutes a
sufficiently distinct act from the purposeful obtention of property belonging to others, i.e.,
the actual acceptance and subsequent misuse of contributed money even if the crimes are
otherwise enhanced by or founded upon the same misappropriated sums.
No. 13AP-615                                                                             4


       {¶ 8} In order to prove the charged theft offense, the state was held to prove that
appellant, with purpose to deprive the owner of property with a value between $1,000 and
$7,500, knowingly obtained or exerted control over the rightful owner’s property by
deception and during the course of criminal conduct. R.C. 2913.02; (R. 2.) In order to
prove the charged offense of solicitation fraud under R.C. 1716.14, the state was held to
show that appellant, while planning, conducting, or executing any solicitation of
contributions for a charitable organization, committed a deceptive act or practice, that the
value of the resulting contributions was more than $1,000 and less than $7,500, and that
appellant had previously been convicted of a violation of R.C. 1716.14. R.C. 1716.14(A)(1)
and 1716.99(B)(2)(b); (R. 2.)
       {¶ 9} Examining the elements of these crimes as they are defined in the statute,
and appellant’s actual conduct as required by Johnson, it is apparent that the offense of
solicitation fraud, unlike the offense of theft, does not require the intent to purposefully
deprive the owner of property. It only requires commission of a deceptive act while
soliciting contributions. It is possible to commit the theft offense without committing
prohibited acts and practices as defined by R.C. 1716.14, and conversely, it is possible to
commit theft without committing solicitation fraud during the course of charitable
solicitations.
       {¶ 10} Appellant particularly stresses in this appeal that the state presented no
evidence to separately substantiate the predicate threshold monetary amounts for each
crime — that is, he asserts that the state is using the same dollars twice. While this may be
true, it does not mandate a finding that the offenses must merge.
       {¶ 11} It is accurate that the degree of the theft offense and the solicitation fraud
offense are determined, respectively, by the value of the property stolen or the
contributions received. Theft of an amount under $1,000 would constitute only the first-
degree misdemeanor of petty theft rather than the fifth-degree felony charged here. R.C.
2913.02(B)(2). Receipt of contributions totaling less than $1,000 would support a fifth-
degree rather than fourth-degree felony for an offender with a prior solicitation fraud
conviction. R.C. 1716.99(B)(2). However, the overlapping of one element or enhancing
factor between two crimes, both in their statutory definition and the defendant’s conduct,
No. 13AP-615                                                                              5


does not mandate merger of the offenses where the other elements and conduct are
distinct. State v. West, 10th Dist. No. 11AP-548, 2013-Ohio-942, ¶ 22.
       {¶ 12} Because we find that the offenses as committed in the present case do not
constitute allied offenses of similar import, the trial court did not err in refusing to merge
the two convictions for sentencing. Appellant's first assignment of error is accordingly
overruled.
       {¶ 13} Appellant's second assignment of error asserts that the trial court erred
when it did not make the required findings under R.C. 2929.14(C) before sentencing him
to consecutive sentences in derogation of the presumption in favor of concurrent
sentences. The state concedes that, pursuant to our recent decisions in State v. Wilson,
10th Dist. No. 12AP-551, 2013-Ohio-1520, and State v. Bender, 10th Dist. No. 12AP-934,
2013-Ohio-2777, the trial court's failure to make the statutorily-required findings
constitutes plain error. We note that the state has fully argued and preserved for further
appeal the question of whether Bender and Wilson correctly state the law of Ohio on this
question. We further note that appellant in the present case did not object to the trial
court's failure to make the statutorily-required findings. In accordance with our recent
decisions, however, the record requires a reversal of the trial court's imposition of
consecutive sentences and a remand to the trial court for re-sentencing. Wilson at ¶ 22.
Appellant's second assignment of error is sustained.
       {¶ 14} In accordance with the foregoing, appellant's first assignment of error is
overruled and the second assignment of error is sustained. The matter is remanded to the
Franklin County Court of Common Pleas for re-sentencing in compliance with the
mandates of R.C. 2929.14(C).
                                          Judgment affirmed in part and reversed in part;
                                                                         cause remanded

                                  CONNOR, J., concurs.
                      KLATT, J., concurs in part and dissents in part

              T. BRYANT, J., retired, of the Third Appellate District,
              assigned to active duty under authority of the Ohio
              Constitution, Article IV, Section 6(C).
No. 13AP-615                                                                           6


KLATT, J., concurring in part and dissenting in part.
       {¶ 15} I agree with the majority opinion that the trial court erred when it imposed
consecutive sentences without making the findings required by R.C. 2929.14(C).
However, unlike the majority, I believe the trial court erred when it refused to merge the
solicitation fraud and theft convictions for purposes of sentencing.         Therefore, I
respectfully dissent from that portion of the majority opinion.
       {¶ 16} Pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, in
considering whether offenses are allied offenses of similar import and subject to merger,
"the question is whether it is possible to commit one 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." Id. at ¶ 48. If the 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.' " Id. at ¶ 49,
quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the offenses are
committed by the same conduct with a single animus, the offenses will merge. Id. at ¶ 50.
       {¶ 17} The majority correctly notes that the elements of the theft offense, R.C.
2913.02, and the elements of the solicitation fraud, R.C. 1716.14, are different. The
majority states that it is possible to commit the theft offense without committing the
solicitation fraud offense, and conversely, it is possible to commit theft without
committing solicitation fraud during the course of charitable solicitations. Because these
offenses have different elements, the majority concludes that these offenses do not merge.
       {¶ 18} The analysis employed by the majority conflicts with Johnson, wherein the
court expressly stated that "the question is whether it is possible to commit one 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." Id. at ¶ 48.
       {¶ 19} Here, solicitation fraud and theft can be committed with the same conduct.
I believe appellant committed these offenses by the same conduct with a single animus.
No. 13AP-615                                                                         7


Both convictions arose from appellant's telephone solicitations on behalf of a purported
veterans organization. Both convictions were premised upon the same misappropriated
funds. I see nothing in the record that would indicate that these offenses were not
committed with a single animus. For this reason, I believe these offenses should merge
for purposes of sentencing.   Because the majority reaches a contrary conclusion, I
respectfully dissent.
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