[Cite as State v. Shears, 2013-Ohio-1196.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                               :   APPEAL NO. C-120212
                                                 TRIAL NO. B-1102971
        Plaintiff-Appellee,                  :
                                                            O P I N I O N.
  vs.                                        :

RANDY SHEARS,                                :

     Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: March 29, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michella M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

       {¶1}    In four assignments of error, defendant-appellant Randy Shears

appeals his convictions for several crimes that arose from the robbery of two retail

stores and the murder of a Springfield Township man.             Because of errors that

occurred during sentencing, the cause must be remanded to the trial court for

correction of those errors. We affirm the trial court’s judgment in all other respects.

                        The Robbery of the Glenway Avenue
                                  Deals Store

       {¶2}    Jerry Williams was operating the cash register at the Glenway Avenue

Deals store on April 21, 2011, when Randy Shears entered. Shears approached Williams

from behind, grabbed him, and threw him to the floor. Shears stole $300 from the store

and fled. Another store employee, who knew Shears from the neighborhood, recognized

him from video footage of the attack and was able to identify Shears in a photo lineup.

Williams, who never saw Shears’s face, could not identify him.

                        Mahesh Banatwala Reported Missing

       {¶3}    Mahesh Banatwala was an older gentleman who lived alone in an

apartment in Colerain Township. Shears’s grandmother lived in the same complex, in a

building adjacent to Mr. Banatwala’s. On May 2, 2011, Mr. Banatwala’s estranged wife

called Springfield Township police because no one had seen or heard from Mr.

Banatwala. This was very unusual because he kept a regular schedule and made regular

contact with family members. A police officer was dispatched to the apartment, but he

saw nothing wrong.

       {¶4}    Two days later, a maintenance worker for the company that managed

the property was cutting the grass when he found Mr. Banatwala’s empty wallet. The




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worker attempted to return the wallet, but no one answered the door. The property

manager found a phone number for Mr. Banatwala’s wife and contacted her.

       {¶5}     Also during this time, neighbors began to complain about barking dogs

in the apartment. Since residents were not allowed to have dogs, the property manager

left a notice on Mr. Banatwala’s door informing him that they had to be removed. The

property manager never heard from Mr. Banatwala, which was unusual. Mr. Banatwala

had always promptly responded to prior notices left on his door.

       {¶6}     The property manager continued to attempt to reach Mr. Banatwala by

phone, but was never able to get through. After several attempts, he contacted the

phone company to find out if there was something wrong with the line. The phone

company representative told him that the phone was off the hook. At this point, the

property manager contacted the police.

       {¶7}     Springfield Township police officers responded and entered the

apartment. They found two dogs that clearly had been neglected for days. The officers

searched the apartment, but saw nothing that would suggest that a struggle had

occurred. An officer placed a note on the door asking Mr. Banatwala to contact him.

When the police received no contact, they issued a critical missing person alert.

                         The Robbery of the Colerain Avenue
                             Family Dollar Store and the
                                 Capture of Shears

       {¶8}     Four days after Mr. Banatwala was first reported missing, Shears

entered a Family Dollar store on Colerain Avenue. Shears placed a bag of potato chips

on the counter, but then left the store claiming to need more money. When he returned

to the store, Shears went behind the counter and told the employee to open the cash

register. Shears threatened to kill the employee if she did not comply. The employee felt

an object pressed against her that she believed was a gun. Since the employee could not

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open it, Shears took the entire cash box and left. The employee later identified Shears

from a photo lineup, and Shears’s fingerprint was found on the snack bag.

       {¶9}    After Shears left, he drove to Price Hill. While in Price Hill, he was

involved in a hit-skip accident. Witnesses to the accident who called the police gave the

license plate number. A computer check of the number indicated that the vehicle was

registered to Mr. Banatwala. When the Springfield Township police department learned

that Mr. Banatwala’s vehicle was being operated by someone who was clearly not Mr.

Banatwala, they joined the investigation.

       {¶10}   Since police learned that Shears had an aunt who lived in Price Hill, their

investigation focused on that address. Mr. Banatwala’s vehicle was found close to the

home, and officers from the different agencies watched the car from a distance and

waited for Shears to return. When he did, he was allowed to enter the vehicle and drive

a short distance before they stopped him. Shears leapt from the car and fled into the

woods. He was arrested a short time later and taken to the Springfield Township police

department.

       {¶11}   Mr. Banatwala’s vehicle was searched. Although it had been cleaned,

police found a large amount of blood in the trunk. Police also found the cash box from

the Family Dollar Store in the back seat.       A search of the apartment of Shears’s

girlfriend, Lashawna Bingham, revealed a computer later identified as belonging to Mr.

Banatwala.

                            The Interrogation of Shears,
                        His Confession, and the Discovery of
                               Mr. Banatwala’s Body

       {¶12}   Police began questioning Shears shortly after midnight on May 7, 2011.

He was informed of his Miranda rights, and he signed a form acknowledging that he

understood them. He claimed that he had purchased the car from a “crack head” for

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$300. He initially denied being involved in the robbery at the Family Dollar store, but

later claimed that he could not remember because he had been drinking to celebrate his

birthday. He claimed that he did not know that the car belonged to Mr. Banatwala, who

lived in the same apartment complex as his grandmother. He said that he had found the

computer in a box in the hallway, and that he thought someone had left it there and had

forgotten about it.

       {¶13}    While the interrogation lasted for over eight hours, it was punctuated by

several lengthy breaks during which Shears was allowed to sleep. One break alone lasted

for longer than 30 minutes, and many lasted 15 to 20 minutes. After each break, he

seemed refreshed and was able to continue the interrogation.          Investigators later

brought Bingham into the interrogation room, and she repeatedly asked Shears to tell

the truth.

       {¶14}    Eventually, Shears claimed that he was part of a group of individuals

who had robbed Mr. Banatwala. He claimed that they had gained entry by knocking on

the door and ducking under the peephole to trick him into opening the door. Shears

said he had been the driver, and that the others had struck Mr. Banatwala and rendered

him unconscious. The others had then put Mr. Banatwala in the back of the car—still

alive—and the group had driven to an apartment building on Westwood Northern

Boulevard, where he had been left in the parking lot. Investigators did not believe this

account, since the area was one in which Mr. Banatwala would likely have been

discovered. When they took Shears to the area and found nothing, Shears finally agreed

to lead them to the body. Mr. Banatwala’s body was found in a trunk in a garage of a

home that had belonged to Shears’s aunt. The vacant home’s current owner had placed

boards with screws sticking up around the doors to deter intruders. A broken piece from

one of the screws matched a piece imbedded in Shears’s shoe.


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       {¶15}    Shears was charged with the following relating to the robbery of the

Deals store: aggravated robbery in violation of R.C. 2911.01(A)(3) and robbery in

violation of R.C. 2911.02(A)(2). With regard to the robbery of the Family Dollar store,

Shears was charged with: aggravated robbery in violation of R.C. 2911.01(A)(1) with

specifications, robbery in violation of R.C. 2911.02(A)(2), and having a weapon while

under a disability in violation of R.C. 2923.13(A)(2). And relating to the murder of Mr.

Banatwala, Shears was charged with: aggravated murder in violation of R.C. 2903.01(B),

murder in violation of R.C. 2903.02(B), aggravated robbery in violation of R.C.

2911.01(A)(3), robbery in violation of R.C. 2911.02(A)(3), aggravated burglary in

violation of R.C. 2911.11(A)(1), burglary in violation of R.C. 2911.12(A)(1), kidnapping in

violation of R.C. 2905.01(B)(1), tampering with evidence in violation of R.C.

2921.12(A)(1), and gross abuse of a corpse in violation of R.C. 2927.01(B). The trial

court denied Shears’s motion to suppress that had attacked the propriety of his

interrogation and had sought to suppress the statements he made. After a trial to the

bench, Shears was found guilty of all charges and sentenced as appears of record.

                          Shears’s Interrogation was Proper

       {¶16}    In his first assignment of error, Shears claims that the trial court should

have suppressed the statements he made as a result of his interrogation. We disagree.

       {¶17}    In order to determine whether a pretrial statement is involuntary, a

court “should consider the totality of the circumstances, including the age, mentality,

and prior criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the existence

of threat or inducement.” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796

N.E.2d 506, ¶ 13, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),

paragraph two of the syllabus. An appellate court must determine whether the totality of


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the circumstances surrounding the confession indicates that a defendant’s “will was

overborne and his capacity for self-determination was critically impaired because of

coercive police conduct.” State v. Otte, 74 Ohio St.3d 555, 562, 660 N.E.2d 711 (1996);

State v. Dailey, 53 Ohio St.3d 88, 559 N.E.2d 459 (1990), paragraph two of the syllabus.

       {¶18}    Shears first argues that he did not voluntarily waive his Miranda rights

because he was impaired by drugs or alcohol. While Shears did state that he had been

drinking alcohol throughout the day prior to his arrest, the video recording of his

interrogation did not demonstrate any indication of intoxication or other impairment

such that he could not effectively participate in the questioning.       Throughout the

process, Shears appeared to be coherent, to understand what was happening, and was to

be able to participate to the level that he was willing to do so. Having independently

reviewed the video recording, we agree with this assessment of the trial court.

       {¶19}    Shears next argues that the nature of his interrogation demonstrated

that his will had been overborne and that his statements were involuntary. While the

length of the confession was significant, there are a number of factors that indicate that

the confession was voluntary. First, he was allowed to take several breaks, during which

he was allowed to sleep. He was given water when he said he was thirsty. He was

allowed to see his girlfriend when he asked for her, and was allowed to talk to her. At no

time were the officers rude, intimidating, or coercive. In fact, at no time during the

interrogation did any of the officers involved raise their voices. And while there were a

few different officers involved in the interrogation, at no time were there more than two

of them in the room. And for the vast majority of the time, the interrogation consisted of

only Shears and one officer. Finally, even when Shears “confessed,” the story he told the

police—the involvement of other individuals, the fact that he was only the driver and did

no harm to Mr. Banatwala—was tailored to minimize his culpability in the killing.


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       {¶20}    Finally, Shears claims in his brief that the statements he made while in

the police car locating Mr. Banatwala’s body were involuntary because “the Miranda

warnings initially provided were no longer effective during the subsequent

interrogations.” But in a recent case, the Ohio Supreme Court found no fault with a

subsequent interrogation that occurred more than 30 hours after the initial Miranda

warnings were issued. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d

865. In that case, the court noted that Powell had remained in continuous custody

during the period, the subsequent statements were “primarily a more detailed retelling

of the story he had already voluntarily told in his first statement, even though some new

information was provided,” and Powell was alert at the time. These factors were also

present in this case. While Shears might admittedly have been somewhat tired, the man

seen at the end of the video appeared sufficiently alert to render his statements

voluntary.

       {¶21}    In the end, it was not coercive police tactics that overbore Shears’s will,

but rather effective police work that resulted in the accumulation of an overwhelming

amount of evidence that, when presented to him, left him with no alternative but to

admit his involvement. We overrule his first assignment of error.

                          Calling Bingham as Court’s Witness

       {¶22}    In his second assignment of error, Shears claims that it was an abuse of

discretion for the trial court to call his girlfriend, Lashawna Bingham, as a court’s

witness pursuant to Evid.R. 614(A). That rule states that “the court may, on its own

motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-

examine witnesses thus called.” The purpose of Evid.R. 614 is to allow the fact-finder to

hear evidence that would be beneficial in the performance of its fact-finding




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responsibilities and ascertaining the truth of the matter. State v. Arnold, 189 Ohio

App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218 (2nd Dist.).

       {¶23}    The basis for Shears’s argument rests in the claim that the state did not

provide a sufficient basis to show that Bingham was hostile or had changed her

testimony, and that calling her as a court’s witness allowed the state to lead Bingham

with its questions—basically testifying for her. When the prosecutor asked the trial court

to call Bingham as a court’s witness, he said that she was “having difficulty remembering

things, it’s been traumatic.” He said that she “provided essential information to the

police about the identity of the person that committed the offense, and why it was done.”

       {¶24}    The decision whether to call individuals as witnesses of the court is left to

the “sound discretion” of the trial court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d

144 (1980). We find no abuse of discretion in this case. While the prosecutor asked

many leading questions, much of what Bingham said that was most damaging to

Shears’s case was not the result of leading questions. Additionally, with the significant

physical and other evidence against Shears, most of what Bingham contributed was

tertiary to the core factual substance of the state’s case.

       {¶25}    It is also important to note that this matter was not tried before a jury.

In a bench trial, a trial court is presumed to have considered only the relevant, material

and competent evidence. State v. Bays, 87 Ohio St.3d 15, 28, 716 N.E.2d 1126 (1999).

       {¶26}    In light of the above, we cannot say that calling Bingham as a court’s

witness was an abuse of discretion. While the number of leading questions for the

witness was significant, it was not overwhelming, nor was the substance of Bingham’s

testimony significant to the case overall. And since this was a bench trial, the possibility

of any impropriety is minimal. Shears’s second assignment of error is overruled.




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                             The Sufficiency and Weight of
                                     the Evidence

       {¶27}    In his third assignment of error, Shears claims that his convictions were

based upon insufficient evidence and contrary to the manifest weight of the evidence.

We disagree.

       {¶28}    To reverse a conviction for insufficient evidence, we must conclude that

no rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. By contrast, when reviewing the weight of the evidence,

we act as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997). We review the entire record, weigh the evidence, consider the credibility of

witnesses, and determine whether the trier of fact clearly lost its way and created a

manifest miscarriage of justice in finding the defendant guilty. Id.

       {¶29}    With regard to the Deals robbery, Shears claims that there was no

showing that he recklessly inflicted, or attempted to inflict, serious physical harm when

he committed the robbery. But Shears came up behind the clerk, picked him up, and

threw him to the floor. The trial court noted the viciousness with which Shears threw

him to the ground. It also noted that Shears did not consider what he was throwing the

victim onto when he did this. The victim landed partly on a box of merchandise on the

floor which, as it turned out, was not filled with hard items. Had it been, his injuries

would likely have been more significant.

       {¶30}    As it relates to the Family Dollar robbery, Shears claims that the state

failed to prove that he had an operable firearm when he committed the robbery. The

clerk whom he robbed testified that Shears had threatened to kill her if she did not

comply. She also testified that she felt something hard in Shears’s pocket that she

believed to be a gun. This court has held that a conviction for aggravated robbery with

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gun specifications can be supported by evidence that a defendant has informed a victim

that he has a gun and that he will shoot. State v. Obsaint, 1st Dist. No. C-060629, 2007-

Ohio-2661. As in Obsaint, the victim was not in a position to observe the weapon or any

movement that would indicate possession of a weapon because Shears was behind her.

Also as in Obsaint, Shears’s conduct and communication with the victim led the victim

to believe that he was armed. On this record, including the combination of the threat

and what the clerk felt in Shears’s pocket, the trial court had sufficient circumstantial

evidence before it to conclude that Shears was armed with an operable firearm when he

robbed the Family Dollar Store.

       {¶31}   Concerning the crimes arising from the death of Mr. Banatwala, Shears

argues generally that the state did not prove that he was involved in his disappearance

and death. Alternatively, he claims that there was no proof that he intended to kill Mr.

Banatwala. We disagree.

       {¶32}   Mr. Banatwala lived in the same apartment complex as Shears’s

grandmother. Shears was found with Mr. Banatwala’s car, a car that Shears claimed

that he had purchase from a “crack head” in a completely different part of town. Shears

had the keys to both Mr. Banatwala’s car and his apartment. Mr. Banatwala’s computer,

which had been in his apartment, was found in the home of Shears’s girlfriend. Shears’s

fingerprints were found in Mr. Banatwala’s apartment on the bedroom window under

which Mr. Banatwala’s empty wallet was later recovered. Mr. Banatwala’s body was

found in a home that had belonged to Shears’s aunt. A piece of broken screw found in

Shears’s shoe matched screws left by the property’s owner to deter break-ins. And, most

significantly, Shears was able was able to lead police to Mr. Banatwala’s body. Blood

evidence in the trunk was consistent with the theory that Mr. Banatwala was alive when

he was placed in the trunk. In fact, Shears told police that he believed that Mr.


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Banatwala was merely unconscious when he was placed there. And the severity of the

beating that Mr. Banatwala received supports the conclusion that his attacker wanted

him dead.

          {¶33}   Having considered the entire record, we conclude that Shears’s

convictions were based upon sufficient evidence and were not against the manifest

weight of the evidence. Therefore, we overrule his third assignment of error.

                                        Sentencing

          {¶34}   In his fourth assignment of error, Shears claims that the trial court made

several sentencing errors. We agree, in part.

          {¶35}   Shears was sentenced to ten years in prison for the aggravated robbery of

the Deals store; the trial court merged the related robbery count into that offense. He

was sentenced to ten years in prison for the aggravated robbery of the Family Dollar

store, with three years for the gun specification, and five years in prison for having a

weapon while under a disability. The trial court merged the related robbery count into

the aggravated robbery offense.       He was sentenced to life without parole for the

aggravated murder of Mr. Banatwala, ten years for aggravated robbery, ten years for

aggravated burglary, ten years for kidnapping, five years for tampering with evidence,

and one year for gross abuse of a corpse. The trial court merged the related robbery

count with the aggravated robbery conviction, and the burglary count with the

aggravated burglary conviction.      The trial court ordered Shears to serve all terms

consecutively. In total, Shears received a sentence of life without parole plus 64 years in

prison.

          {¶36}   Shears claims that the aggravated murder, aggravated robbery,

aggravated burglary, and kidnapping were all allied offenses of similar import. Under

R.C. 2941.25, a trial court may convict a defendant for two or more allied offenses if the


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offenses were committed with a separate animus as to each offense. State v. Anderson,

1st Dist. No. C-110029, 2012-Ohio-3347, 974 N.E.2d 1236, ¶ 15, citing State v.

Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892 (1984), and State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 51.

       {¶37}   This court reviews allied-offense issues by examining the evidence

adduced before the trial court, and if the evidence shows that the state relied upon the

same conduct to prove the offenses, and that the offenses were committed neither

separately nor with a separate animus as to each, then the defendant is afforded the

protections of R.C. 2941.25. The trial court errs if it imposes separate sentences for the

offenses. Anderson at ¶ 20; Johnson at ¶ 56.

       {¶38}   We begin with the aggravated murder conviction. In State v. Tibbs, this

court addressed the issue of the merger of aggravated murder and other offenses. We

held that “the offender’s conduct demonstrated a purpose—a specific intent—to kill

while, or in the course of, committing an aggravated robbery, we hold that the two

offenses were committed with a separate animus and thus were separately punishable

under R.C. 2941.25(B).” State v. Tibbs, 1st Dist. No. C-100378, 2011-Ohio-6716, ¶ 48.

In this case, the trial court noted that the beating that Mr. Banatwala received from

Shears was severe. It was much more severe than what was necessary to complete the

other offenses. This evidence established an intent to kill that is distinct from the

commission of the other crimes. See State v. Whipple, 1st Dist. No. C-110184, 2012-

Ohio-2938, ¶ 39 (when the conduct so exceeds the degree required to commit the one

offense, a separate animus is demonstrated as to a second offense).

       {¶39}   We next address the kidnapping. As the Ohio Supreme Court has noted,

the commission of aggravated robbery necessarily entails the restraint of the victim. See

State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). Where “the restraint is


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prolonged, the confinement is secretive, or the movement is so substantial as to

demonstrate a significance independent of the robbery, there exists a separate animus, a

separate ‘immediate motive,’ to support the kidnapping conviction.” State v. Chaffer, 1st

Dist. No. C-090602, 2010-Ohio-4471, ¶ 11, quoting Logan at syllabus.

       {¶40}   In this case, the evidence presented at trial indicated that Mr. Banatwala

was likely alive when he was placed in the car trunk by Shears. Clearly removing him

from the apartment at all was much more substantial than the restraint necessary to

commit the aggravated robbery in this case.

       {¶41}   Finally, we address the convictions for aggravated robbery and

aggravated burglary. The problem with these two separate convictions is that the

conduct that provides the aggravation for both counts is the same: the physical harm

that Shears caused to Mr. Banatwala in order to rob him. Since this was the same

conduct that was committed with the same animus, the two counts must merge.

       {¶42}   We note that the trial court found Shears guilty of burglary and robbery,

but merged those counts with their aggravated counterparts. On remand, he can be

convicted of the lesser version of the merged counts. In other words, Shears can be

convicted of robbery and aggravated burglary or of aggravated robbery and burglary.

But he cannot be convicted of both aggravated offenses.

       {¶43}   Shears also argues that he could not be separately convicted of gross

abuse of a corpse and tampering with evidence. We agree. The basis of both charges

was Shears’s conduct of placing Mr. Banatwala’s body in the trunk in the garage of the

vacant house. Therefore, there was not a separate animus that would allow the trial

court to sentence Shears for both offenses. See State v. Crisp, 4th Dist. No. 10CA3404,

2012-Ohio-1730, ¶ 38-39 (ordering the merger of a gross-abuse-of-a-corpse count and a

tampering-with-evidence count when both arose from the disposal of one body).


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       {¶44}   In addition to the above noted errors regarding merger, the trial court

erred when it sentenced Shears to five years in prison for having a weapon while under a

disability and tampering with evidence. These are felonies of the third degree and are

now subject to a maximum sentence of 36 months. The trial court also erred when it

ordered Shears to serve his sentences consecutively without making the findings

required by R.C. 2929.14(C)(4). The state has conceded error on these points.

       {¶45}   In sum, the trial court erred when it failed to merge either the aggravated

robbery conviction or the aggravated burglary conviction. On remand, the trial court is

free to sentence on the lesser offense of either robbery or burglary depending on which

aggravated offense the state elects. The trial court also erred when it failed to merge

gross abuse of a corpse with tampering with evidence.         The trial court must also

resentence Shears to no more than 36 months in prison for the two third-degree felonies

of having a weapon while under a disability and tampering with evidence. The trial

court also must comply with R.C. 2929.14(C)(4) in determining whether consecutive

sentences are proper in this case. The fourth assignment of error is sustained in part

and overruled in part.

                                      Conclusion

       {¶46}   For the above reasons, the decision of the trial court is affirmed in part,

the sentences are vacated in part, and this cause is remanded for resentencing in

accordance with the law and this opinion.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.

HILDEBRANDT, P.J., and HENDON, J,. concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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