      [Cite as State v. Kottner, 2013-Ohio-2159.]

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



   STATE OF OHIO,                                   :   APPEAL NO. C-120350
                                                        TRIAL NO. B-1003804
            Plaintiff-Appellee,                     :

      vs.                                           :
                                                            O P I N I O N.
   DANIEL KOTTNER,                                  :

        Defendant-Appellant.                        :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 29, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                           OHIO FIRST DISTRICT COURT OF APPEALS



S YLVIA S IEVE H ENDON , Presiding Judge.

       {¶1}   Following a bench trial, defendant-appellant Daniel Kottner was convicted of

eight counts of burglary, one count of attempted burglary, and two counts of receiving

stolen property. The trial court sentenced him to an aggregate prison term of 20 years. We

affirm the trial court’s judgment.


                                         The Background


       {¶2}   Police from Hamilton and Butler counties were investigating a series of

burglaries that had occurred in March and April 2010.

       {¶3}   On April 5, 2010, at about 5:20 p.m., Blue Ash resident Elisabeth Feiler was

driving home when she passed a black car with two occupants leaving her street. Mrs. Feiler

described the street as being “dead-end” and “narrow,” with only five houses on it. She said

that the car was “like an Acura, a black, older car.” She waved at the passing car because she

thought at first that it was her neighbor. Mrs. Feiler did not think anything of it until she

arrived at her house to find some of her jewelry on the front steps and the interior of the

home ransacked.     A flat-screen television, a videogame system, cash, and most of her

jewelry had been stolen.

       {¶4}   A man who lived one street away from Mrs. Feiler told police that on the same

day, he had seen a white man on his neighbor’s porch, walking around and talking on a

cellular telephone. At the same time, a black man in a black Honda Acura slowly drove past

the neighbor’s house, six to eight times. At one point, the black man got out of the car

briefly to speak to the white man.

       {¶5}   Several weeks later, on April 23, 2010, a homeowner in the Springfield

Township area reported that she had arrived home to see a small black car parked in front of

her house, a white man on her porch, and a black man looking over the backyard fence.

After the men drove away in the car, she called the police and gave them the car’s license-



                                                 2
                           OHIO FIRST DISTRICT COURT OF APPEALS



plate number. She later identified the men from photographs. The black man was Terry

Simpson; the white man was Kottner.

       {¶6}    The black car was a Honda Acura registered to Simpson’s girlfriend. Police

set up surveillance on the car while it was parked at Kottner’s apartment complex. They saw

Kottner and Simpson arrive in Kottner’s Ford Escape and move a television from Kottner’s

car to Simpson’s girlfriend’s car. When the two drove off, both cars were stopped by police

and Simpson and Kottner were arrested, shortly after noon.

       {¶7}    Police recovered stolen property from Simpson’s home and his girlfriend’s

car, and from Kottner’s home and car. In Kottner’s car, police found a handwritten note

entitled, “Daniel’s Plan,” on which was written, “#1 Get Clean, via Jailin’[;] #2 Tie up loose-

ends[;] #3    Turn myself in, ending wanted status in Montgomery County, possible in

Fairfield also[.]"

       {¶8}    When Kottner was arrested, a Springfield Township police officer verbally

informed him of his Miranda rights. Just before 2:oo p.m., Kottner was taken to the

Springfield Township police department where the officer again advised him of his rights.

Kottner signed a rights-waiver form and was interviewed by detectives.

       {¶9}    Then an officer from Butler County drove Kottner and a Springfield Township

detective to several locations throughout Hamilton and Butler counties so that Kottner

could identify multiple homes that he and Simpson had burglarized. The car ride lasted just

over an hour. During the drive with the officers, when Kottner said he was feeling bad and

that food would help him to feel better, the officers purchased food and drink for him.

Kottner was then taken to the Butler County jail.

       {¶10} At about 9:00 p.m. that evening, a detective from Forest Park, Ohio, went to
the jail to interview him. The interview was videotaped.

       {¶11} A few days later, detectives from Blue Ash, and Montgomery, Ohio,
interviewed Kottner at the same jail, after they had advised him of his Miranda rights and

he had again executed a rights-waiver form.


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                          OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} Kottner was charged with 10 counts of burglary as a felony of the second
degree, in violation of R.C. 2911.12(A)(2); one count of attempted burglary, in violation of

R.C. 2923.02(A); and two counts of receiving stolen property, in violation of R.C.

2913.51(A).

       {¶13} The trial court denied Kottner’s motion to suppress his statements to police,
and the case proceeded to a bench trial. At trial, Kottner denied having participated in any

burglaries with Simpson. He claimed that the police had coerced him to make statements.

       {¶14} Kottner was convicted of eight of the ten counts of burglary, and the trial
court acquitted him of the remaining two counts. The trial court amended three of the eight

burglary counts to felonies of the third degree. The court also convicted him of attempted

burglary and of two counts of receiving stolen property.

       {¶15} Kottner now appeals. He argues that the trial court erred (1) by overruling his
motion to suppress evidence; (2) by allowing the state to introduce hearsay statements; (3)

by convicting him despite the lack of evidence against him; and (4) by improperly

sentencing him.


                                     The Motion to Suppress


       {¶16} In his first assignment of error, Kottner argues that the trial court erred by
overruling his motion to suppress the statements that he had made to police. He contends

that: (1) his statements were not voluntarily made; (2) the Miranda warnings were stale by

the time his second interview had occurred; (3) he had requested counsel; and (4) the police

had made improper inducements to get him to confess.

       {¶17} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An

appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence. Id. Accepting those facts as true, the appellate court must



                                                 4
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then independently determine, without deference to the trial court’s conclusion, whether

the facts satisfy the applicable legal standard. Id.


                                          A. Voluntariness


       {¶18} First, Kottner contends that he did not voluntarily waive his rights before he
made statements to police on the day he was arrested. Moreover, he claims that he was

under the influence of drugs, and that when he made statements to the Forest Park detective

that evening, he was exhausted from having been in custody for much of the day.

       {¶19} The voluntariness of a suspect’s waiver and statements are both measured by
a totality-of-the-circumstances test. State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640

(1996). Evidence of coercion or overreaching by the police is necessary for a finding of

involuntariness.   State v. Hill, 64 Ohio St.3d 313, 318, 595 N.E.2d 884 (1992), citing

Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

       {¶20}    The record reveals that Kottner had been advised of his rights two times and

he had executed a rights-waiver form before being taken to the Butler County jail.

According to police, he did not appear to be under the influence of drugs or alcohol, and he

appeared to understand his rights. Kottner indicated that he was college-educated and

responded appropriately to their questions. At no time did he request counsel or indicate an

unwillingness to speak with police.

       {¶21} With respect to Kottner’s claim that he had been under the influence of drugs,
the trial court commented that it had reviewed the videotaped recording of the Forest Park

detective’s interview.   The court noted that Kottner was “very lucid in that, very well

oriented, didn’t request a lawyer.” Moreover, the court found that Kottner “did not appear

under the influence of alcohol or drugs. He clearly understood what he was doing. He was

able to discuss with the interviewer intelligently and make the points that he wanted to

make. * * * [H]e clearly understood what he was doing. He clearly understood his [r]ights.”



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                           OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Our review of the record convinces us that the trial court properly concluded
that Kottner’s waiver and statements were voluntary. Kottner’s signing of a written waiver

form is strong evidence that his waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261,

527 N.E.2d 844 (1988). Although the interviews on the day of his arrest took place over

several hours, Kottner was not deprived of amenities or breaks. He was provided with food

and drink, and there was no evidence of coercive conduct by police. We conclude that the

trial court’s findings that Kottner had knowingly and voluntarily waived his rights and had

voluntarily made statements were supported by competent, credible evidence.                See

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.


                                 B. The Warnings Were Not Stale


       {¶23} Next, Kottner contends that the Miranda warnings he had received at the
time of his arrest were “no longer effective” when he made statements to the Forest Park

detective at the Butler County jail later that evening. However, police do not need to re-

administer Miranda warnings to a suspect before each subsequent interrogation when a

relatively short period of time has elapsed since the initial warnings. State v. Powell, 132

Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 119; State v. Treesh, 90 Ohio St.3d 460,

470, 739 N.E.2d 749 (2001); Wyrick v. Fields, 459 U.S. 42, 48-49, 103 S.Ct. 394, 74 L.Ed.2d

214 (1982).

       {¶24} When deciding whether initial warnings remain effective for later
interrogations, courts look at the totality of the circumstances. Powell at ¶ 119, citing State

v. Roberts, 32 Ohio St.3d 225, 232, 513 N.E.2d 720 (1987).          Courts are instructed to

consider:     (1) the length of time between the initial warnings and the subsequent

interrogation; (2) whether the warnings and the subsequent interrogation were given in

different places; (3) whether the warnings given and the subsequent interrogation were

conducted by different officers; (4) the extent to which statements given in the subsequent



                                                  6
                           OHIO FIRST DISTRICT COURT OF APPEALS



interrogation differed from previous statements; and (5) the apparent intellectual and

emotional state of the suspect. Roberts at 232, quoting State v. McZorn, 288 N.C. 417, 434,

219 S.E.2d 201 (1975). The purpose of the test is to “determine whether the initial warnings

have become so stale and remote that there is a substantial possibility that the individual

was unaware of his constitutional rights at the time of the subsequent interrogation.” State

v. Grissom, 1st Dist. No. C-100542, 2011-Ohio-1796, ¶ 13, citing McZorn at 434.

       {¶25} In Powell, the Supreme Court found that initial Miranda warnings were not
stale even though more than 30 hours had elapsed between the warnings and the suspect’s

subsequent interview. The court pointed out that the suspect had remained in continuous

custody since the warnings had been given, that both interviews had been conducted by the

same officer at the same location, that the suspect’s later statement essentially recounted

what he had already said in his earlier statement, and that the suspect was “mentally alert”

at the time he gave the later statement.

       {¶26} In this case, Kottner remained in continual police custody from the time of his
arrest in Springfield Township to the time of his interview at the Butler County jail. That

interview occurred within seven hours of Kottner’s signing the waiver-of-rights form at the

Springfield Township police department.        That interview “was part of a series of

discussions” that Kottner had with police about burglaries in the area. See State v. Brewer,

48 Ohio St.3d 50, 60, 549 N.E.2d 491 (1990) (statement admitted that was made one day

after the suspect was advised of his Miranda rights by a different police department). In

addition, the videotaped recording of his interview reveals that Kottner was mentally alert,

attentive, and lucid during the interview. The record yields no indication that the Miranda

warnings were no longer fresh in Kottner’s mind or that he was unwilling to speak with the

detective.

       {¶27} Given the totality of the circumstances, we conclude that the initial Miranda
warnings provided to Kottner by the Springfield Township police officers in the afternoon




                                                7
                           OHIO FIRST DISTRICT COURT OF APPEALS



were not stale when Kottner made statements to the Forest Park detective that evening at

the Butler County jail. So no new warnings were required.


                                   C. No Request for Counsel


       {¶28} Next, Kottner argues that his statements to the detectives from Blue Ash and
Montgomery several days after his arrest were obtained in violation of his Miranda rights.

He contends that questioning should have ceased when he “made reference to speaking to

counsel.”

       {¶29} Once a suspect clearly and unambiguously invokes his right to counsel, police
must immediately cease questioning. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). If a suspect’s reference to an attorney is ambiguous or equivocal “in

that a reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel,” police do not need to stop their questioning.

Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

       {¶30} The Ohio Supreme Court has held that the following statements were not
unequivocal or unambiguous requests for counsel: “[Aren’t] I supposed to have a lawyer

present,” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 19; “I

think I need a lawyer,” State v. Henness, 79 Ohio St.3d 53, 62, 679 N.E.2d 686 (1997); and

“when I talk to my lawyer,” State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d

362, ¶ 95.

       {¶31} Similarly, we have concluded that the following statements were not
unequivocal requests for counsel: “I can get a lawyer,” State v. Newman, 1st Dist. No. C-

090735, 2010-Ohio-4180; “I would prefer a lawyer but I want to talk to you now,” State v.

Carr, 1st Dist. No. C-090109, 2010-Ohio-2764; a request to speak to a district attorney to

obtain a “deal,” State v. Long, 1st Dist. Nos. C-090248 and C-090249, 2010-Ohio-1062; and




                                                 8
                           OHIO FIRST DISTRICT COURT OF APPEALS



a request to call a person whom the suspect failed to identify as an attorney, State v. Bell, 1st

Dist. Nos. C-050537 and C-050539, 2007-Ohio-310.

       {¶32} In this case, after being advised of his rights by the Blue Ash detective,
Kottner signed a rights-waiver form and indicated his willingness to speak. During the

interview, the detective asked Kottner if the police had recovered any property during the

search of his home, and Kottner answered, “I don’t know. I haven’t talked to any lawyer or

anything yet.” Kottner told the detective that he understood that “[the detective’s] position

in this is primarily to recover property. * * * I would, honestly, I mean, in my position now I

would love to help you with that as much as I can. * * * Unfortunately, I haven’t talked to a

lawyer yet.” Under the precedent cited above, these passing references to counsel did not

amount to an unequivocal or unambiguous request for counsel.


                              D. No Improper Inducements by Police


       {¶33} Finally, Kottner claims that the Blue Ash detective made improper
inducements in order to obtain a statement from him.

       {¶34} The detective told Kottner, “You’re going to face criminal charges no matter
what. * * * [Y]ou got to realize that.” And he said that he could tell the prosecutor that

Kottner had been helpful in the recovery of the property he had stolen, or that Kottner had

been remorseful. He stated that he could ask the prosecutor to reduce the level of the

felony, or that he could make “recommendations for probation or whatever it is.” He told

Kottner, “I will go to bat for you. Okay. You are going to get charged. * * * With the three

burglaries from me. * * * I’m not going to press for any kind of maximum time. * * * Because

of your cooperation.” He also said, “I’ll go to bat for you with the prosecutor. * * * I’m not

going to guarantee that you won’t get any time.”

       {¶35} The detective indicated his own willingness to attest to Kottner’s cooperation,
but made no guarantees about Kottner’s potential sentence. “Promises that a defendant’s



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                           OHIO FIRST DISTRICT COURT OF APPEALS



cooperation would be considered in the disposition of the case, or that a confession would

be helpful, do not invalidate an otherwise legal confession.” State v. Loza, 71 Ohio St.3d 61,

67, 641 N.E.2d 1082 (1994); State v. Carovillano, 1st Dist. Nos. C-060658 and C-060659,

2007-Ohio-5459. Consequently, the detective’s statements did not constitute improper

inducement so as to affect the voluntariness of Kottner’s statements.

       {¶36} Accordingly, we hold that the trial court properly denied Kottner’s motion to
suppress his statements. We overrule the first assignment of error.


                                     The Admission of Hearsay


       {¶37} In his second assignment of error, Kottner argues that the trial court erred by
allowing the state to introduce hearsay statements made by one of the burglary victims, Yuji

Hongu, who did not testify at trial. However, we find that the admission of his statements,

even if erroneous, was harmless because the content of the statements was corroborated by

admissible and overwhelming evidence of Kottner’s guilt of the Hongu burglary, as we

discuss below in the disposition of his third assignment of error. See Crim.R. 52(A); State v.

Williams, 38 Ohio St.3d 346, 349-350, 528 N.E.3d 910 (1988). We overrule the second

assignment of error.


                                       Weight and Sufficiency


       {¶38} In his third assignment of error, Kottner challenges the weight and sufficiency
of the evidence upon which his convictions were based.

       {¶39} Kottner was convicted of three counts of burglary in violation of R.C.
2911.12(A)(3), felonies of the third degree. For those counts, the trier of fact had to find that

he had trespassed in an occupied structure by force, stealth, or deception with the purpose

to commit in the structure any criminal offense. And Kottner was convicted of five counts of

burglary in violation of R.C. 2911.12(A)(2), felonies of the second degree. For those counts,



                                                  10
                            OHIO FIRST DISTRICT COURT OF APPEALS



the state was required to prove the additional element that the structure was a person’s

“habitation” and that the offense occurred “when any person other than an accomplice of

the offender is present or likely to be present.” In addition, Kottner was convicted of an

attempted burglary.


                             A. No Testimony by the Property Owner


       {¶40} Kottner specifically contends that the state failed to prove that he had
committed the third-degree burglary of the residence of Yuji Hongu, where the victim did

not testify at trial. We disagree.

       {¶41} A Blue Ash police sergeant testified that on April 5, 2010, he was dispatched
to an apartment in response to a 911 call about a break-in. On his arrival, the sergeant saw

that the apartment door was splintered and its lock mechanism was broken apart. He noted

a footprint on the door where it appeared that the door had been kicked open. A window

screen had been cut out of a locked window. The officer saw evidence that a person resided

in the apartment, including furnishings, numerous personal belongings, and mail.

       {¶42} Blue Ash police detective James Kelley, the investigator assigned to the
Hongu break-in, interviewed Kottner a month later, on May 3, 2010. Kottner admitted that

he and Simpson had stolen golf clubs from the apartment. He said that the day after the

Hongu burglary, he and Simpson had sold the clubs at Play It Again Sports. Kottner said he

had presented his own identification and had been paid by a check.

       {¶43} The day after his interview with Kottner, Detective Kelley interviewed Joshua
Snow who worked at Play It Again Sports. Mr. Snow produced a sales receipt dated April 6,

2010, for two sets of golf clubs, showing a photocopy of Kottner’s driver’s license. And he

identified Simpson from a photographic lineup as the man who had accompanied Kottner.

According to Detective Kelley, only a single golf club remained at the store from the two sets

of stolen clubs, and that club was returned to Mr. Hongu.



                                                 11
                              OHIO FIRST DISTRICT COURT OF APPEALS



       {¶44} From this evidence, the trier of fact could reasonably infer that Kottner and
Simpson had trespassed in Mr. Hongu’s residence by force or stealth and that they had

stolen his golf clubs.


                                       B. Likely To Be Present


       {¶45} Kottner argues that, with respect to the second-degree burglary of the
residence of Jeanne Gerdes, the state failed to prove that anyone was likely to be present

when the offense occurred.

       {¶46} In order to prove that someone was “likely to be present,” the state must
adduce specific evidence concerning the habits of the residents or others who have access to

the premises to demonstrate the likelihood of a person’s presence. See State v. Grier, 1st

Dist. No. C-110240, 2012-Ohio-330, ¶ 5; In re Meatchem, 1st Dist. No. C-050291, 2006-

Ohio-4128, ¶ 16.         “A person is likely to be present when a consideration of all the

circumstances would seem to justify a logical expectation that a person could be present.”

Id., citing State v. Green, 18 Ohio App.3d 69, 72, 480 N.E.2d 1128 (10th Dist.1984).

       {¶47} Merely showing that people lived in a residence is insufficient. See State v.
Fowler, 4 Ohio St.3d 16, 18-19, 445 N.E.2d 1119 (1983). The Supreme Court has held that

the “likely to be present” element was satisfied where there was evidence that a home was

regularly inhabited, the residents had been in and out on the day of the offense, and the

home had been burglarized when the residents were temporarily absent. State v. Kilby, 50

Ohio St.2d 21, 361 N.E.2d 1336 (1977), paragraph one of the syllabus. Moreover, evidence

that residents were home on the day of the crime, that two of them occasionally worked at

different locations, and that they were not always home at the same time has been held

sufficient to prove the “likely to be present” element. Fowler at 19.

       {¶48} In this case, Jeanne Gerdes testified that on April 9, 2010, she had locked her
home when she left in the morning. When she returned to her home at 6:00 p.m., she



                                                  12
                            OHIO FIRST DISTRICT COURT OF APPEALS



discovered that her door was unlocked and that her home had been broken into. Ms.

Gerdes said that her typical work day was from 8:00 a.m. to 5:00 p.m., but her job enabled

her to “come and go.” So on occasion, she returned to her home during the daytime.

Sometimes she had to stay at home when she was sick. A few days before the burglary, she

had used vacation time to stay at home. From this evidence, the trier of fact was free to

infer that Ms. Gerdes was likely to be present at the time of the burglary.


                                      C. Attempted Burglary


       {¶49} Kottner also argues that the state presented insufficient evidence that he had
committed an attempted burglary of the Sheafer residence. To prove an attempt, the state

was required to show that Kottner had knowingly “engage[d] in conduct that, if successful,

would constitute or result in the offense.” R.C. 2923.02(A). Criminal attempt occurs when

an offender “purposely does or omits to do anything which is an act or omission constituting

a substantial step in a course of conduct planned to culminate in his commission of the

crime.” State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the

syllabus, overruled on other grounds, State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1140

(1977). A “substantial step” requires conduct that is “strongly corroborative of the actor’s

criminal purpose.” Id.; State v. Andrews, 171 Ohio App.3d 332, 2007-Ohio-2013, 870

N.E.2d 775, ¶ 78 (1st Dist.).

       {¶50} The substantial-step standard focuses on the “overt acts of the defendant
which convincingly demonstrate a firm purpose to commit a crime, while allowing police

intervention * * * in order to prevent the crime when the criminal attempt becomes

apparent.” Woods at 132; State v. Ojile, 1st Dist. Nos. C-110677 and C-110678, 2012-Ohio-

6015, ¶ 51.

       {¶51} In this case, Mrs. Sheafer testified that on April 23, 2010, just before noon,
she was driving home from picking up her son at preschool. As she approached her home,



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                           OHIO FIRST DISTRICT COURT OF APPEALS



she saw a white man, later identified as Kottner, standing on her front porch. Kottner was

looking in her window while he was apparently ringing the doorbell. A small black car was

parked in front of the house. When Mrs. Sheafer pulled into her driveway, she saw a black

man standing in her side yard looking over the back fence. She got out of her car and asked

him what he was doing. The man replied that he had not been looking over her fence. He

claimed that he had been looking at the landscaping for the house next door that was for

sale.

        {¶52} At that point, Kottner approached Mrs. Sheafer and asked if anything unusual
was going on with the home next door that was for sale. He asked her that several times.

She told him that there was nothing unusual and that he should call the realtor listed on the

sale sign if he had any questions about the house. But Kottner kept asking her if anything

unusual was going on. Mrs. Sheafer found the men’s behavior to be suspicious. As they

drove away in the black car, she wrote down its license plate number and called police.

        {¶53} In his statement to the Forest Park detective, Kottner said that he and
Simpson would pick houses at random to burglarize. In the middle of the day, they would

typically park their car, “and kind of sit around for a minute and get a feel for what’s going

on.” They would check a house to see if anybody was home. If anybody was home, they

would pretend to be interested in a neighboring house that was for sale or pretend that they

were simply at the wrong house.

        {¶54} Kottner admitted to the Blue Ash detective that he and Simpson had selected
the Shaefer home because it was a:

        [r]eal new [expletive], real nice house. * * * I remember picking this house

        because there was a house for sale right next to it. And I’m thinking, okay,

        you know, that gives me an excuse to [hang] around and ask questions about

        the house and not, you know, draw so much attention.

        Well, we’re checking out the house next door, and this lady comes up while

        Terry is looking over the [expletive] fence in the back, and I’m at the front


                                                 14
                           OHIO FIRST DISTRICT COURT OF APPEALS



       door, and she immediately sees him and starts tripping out on him, like, what

       the [expletive].

       So, I started doing what I can to ask questions about next door. But the lady

       kind of knew, you know, you could tell from her reaction, [expletive], she

       knew, you know.

       {¶55} Kottner and Simpson had taken substantial steps in a course of conduct that
would culminate in a burglary of the Sheafer home. They operated during the daytime and

parked on the street. They had specifically targeted the home because it fit their preference

for a nice home with a nearby house for sale. As soon as they were confronted, they

commenced their plan to feign interest in the house next door that was for sale. Although

the two were stopped before they were able to enter the house, their trespass on the

premises to more closely examine the house was certainly in furtherance of a burglary

offense. Their actions and Kottner’s statements to police evinced a clear purpose to commit

the crime. This was sufficient evidence that Kottner had committed an attempted burglary.

       {¶56} With respect to the remaining offenses, we conclude that they were based
upon sufficient evidence and they were not against the manifest weight of the evidence.

Although Kottner denied or minimized his involvement in the offenses, the trial court was in

the best position to determine if his testimony was credible. See State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Following our review of

the record, we have no doubt that a rational trier of fact, viewing the evidence in a light most

favorable to the state, could have found that the state had proved beyond a reasonable doubt

that Kottner had committed the offenses. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. Therefore, the evidence presented was legally

sufficient to support his convictions. Moreover, this is not an “exceptional case in which the

evidence weighs heavily against the conviction.” See State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). We overrule the third assignment of error.




                                                  15
                           OHIO FIRST DISTRICT COURT OF APPEALS



                                            Sentencing


       {¶57} In his fourth assignment of error, Kottner argues that the trial court erred by
improperly sentencing him.


                                        A. Allied Offenses


       {¶58} First, Kottner contends that the trial court erred by sentencing him separately
for two receiving-stolen-property offenses in addition to the burglary offenses in Counts 8

and 10 of the indictment because they were allied offenses. However, where, as here, the

state presented evidence that Kottner had retained and had pawned stolen property that

was separate and apart from the property associated with the burglary offenses in Counts 8

and 10 of the indictment, Kottner was properly convicted of both of the receiving-stolen-

property offenses. See R.C. 2941.25(B); see also State v. Jillson, 1st Dist. No. C-100340,

2012-Ohio-1034, ¶ 12, citing State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892

(1984); State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 51.


                                   B. Consecutive Sentences


       {¶59} Kottner also argues that his sentences were contrary to law because the trial
court erred by failing to make the necessary statutory findings before it imposed consecutive

sentences. This is simply not the case. The trial court fully complied with the requirements

of R.C. 2929.14(C). The court completed a felony-sentencing-findings worksheet on which

it noted that consecutive terms were necessary to protect the public and were not

disproportionate to the seriousness of Kottner’s conduct.       See R.C. 2929.14(C)(4).    In

addition, the court found that the harm caused by Kottner’s offenses was so great that no

single prison term for any offense would adequately reflect the seriousness of his conduct,

and that Kottner’s criminal history demonstrated a need to protect the public. See R.C.

2929.14(C)(4)(b) and (c). In addition, the trial court’s statutory findings are well supported


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by the record. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶

14; State v. Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 20.


                                   C. Imposition of Prison Terms


       {¶60} Finally, Kottner argues that the trial court improperly imposed prison terms
for the receiving-stolen-property offenses, which were fifth-degree felonies.             However,

Kottner was simultaneously being sentenced for multiple second- and third-degree felonies,

and he had previously served a prison term for burglary. Therefore, the trial court properly

imposed prison terms for the fifth-degree felonies. See R.C. 2929.13(B). We overrule the

fourth assignment of error and affirm the judgment of the trial court.

                                                                              Judgment affirmed.



CUNNINGHAM and DEWINE, JJ., concur.



Please note:

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




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