[Cite as State v. Brewer, 2012-Ohio-3899.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-11-13

        v.

WILLIAM JOSEPH BREWER, JR.,                               OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 11-CR-0035

                                      Judgment Affirmed

                            Date of Decision:   August 27, 2012




APPEARANCES:

        Howard A. Elliott for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-11-13


PRESTON, J.

       {¶1} Defendant-appellant, William Joseph Brewer, Jr., appeals the

Wyandot County Court of Common Pleas’ judgment entry of conviction and

sentence. For the reasons that follow, we affirm.

       {¶2} On June 15, 2011, the Wyandot County Grand Jury indicted Brewer

on Count One of breaking and entering in violation of R.C. 2911.13(A), a fifth

degree felony; Count Two of theft in violation of R.C. 2913.02(A)(1), a fifth

degree felony; and Count Three of possessing criminal tools in violation of R.C.

2923.24(A), a fifth degree felony. (Doc. No. 1).

       {¶3} On June, 16, 2011, Brewer entered pleas of not guilty at arraignment.

(Doc. No. 7). On June 21, 2011, Brewer filed a written plea of not guilty. (Doc.

No. 8).

       {¶4} A jury trial was scheduled for July 28, 2011; however, on July 5,

2011, Brewer, through counsel, filed a motion for a continuance and explicitly

waived his speedy trial rights. (Doc. Nos. 11-12). The trial court granted the

motion and continued the trial to October 18-19, 2011. (Doc. No. 13).

       {¶5} On August 23, 2011, Brewer, pro se, filed a motion to dismiss the

indictment for an alleged violation of his speedy trial rights. (Doc. No. 27).

Brewer alleged that he gave his attorney consent to continue the trial but only until

August 19, 2011, prior to the expiration of his speedy trial time. (Id.).


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       {¶6} On August 31, 2011, the trial court held a hearing on Brewer’s motion

to dismiss. (Doc. No. 31). During the hearing, the trial court granted Brewer’s

attorney permission to withdraw as counsel, and, thereafter, denied the motion to

dismiss based upon counsel’s previously filed motion for continuance. (Id.).

       {¶7} On September 21, 2011, the trial court appointed Brewer another

attorney after Brewer failed to retain private counsel. (Doc. No. 37). On that same

day, the newly-appointed attorney filed a motion for a continuance of the trial.

(Doc. No. 39). The trial court granted the motion the next day and rescheduled

trial for October 19-20, 2011. (Doc. No. 40).

       {¶8} On October 12, 2011, Brewer filed a motion to withdraw appointed

counsel citing a complete breakdown in the attorney-client relationship. (Doc. No.

73). The trial court held a hearing and denied the motion that same day, but the

trial court granted a continuance for Brewer to prepare for trial with his attorney.

(Doc. No. 77).

       {¶9} On November 7, 2011, the trial court granted the State’s motion to

amend Count Two of the indictment to replace “$500.00” with “$1,000.00” and

replace “$5,000.00” with “$7,500.00” for purposes of the value of the items

stolen. (Doc. No. 99).




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       {¶10} The matter proceeded to jury trial on November 9-10, 2011. The

jury found Brewer guilty on all three counts. (Doc. Nos. 101-103). On November

15, 2011, the trial court entered a judgment entry of conviction. (Doc. No. 107).

       {¶11} On November 16, 2011, the trial court sentenced Brewer to 11

months on each count. (Doc. No. 108). Since Brewer was on post-release control

when he committed the offenses, the trial court terminated Brewer’s post-release

control and imposed a 12-month sentence for his violation of post-release control.

(Id.). The trial court ordered that the terms imposed on Counts One, Two, and

Three, as well as the term imposed for the violation of Brewer’s post-release

control, be served consecutively for an aggregate sentence of 45 months. (Id.).

       {¶12} On November 23, 2011, Brewer filed a notice of appeal. (Doc. No.

112). Brewer now appeals raising five assignments of error for our review. We

will combine Brewer’s first and fifth assignments of error for discussion.

                           Assignment of Error No. 1

       The appellant was denied effective assistance of counsel by
       virtue of the failure of trial counsel to review key components of
       evidence with the appellant in advance of trial such that the
       confidence of the outcome and the ability of the appellant to
       make an informed decision was undermined and eviscerated.

                           Assignment of Error No. 5

       The appellant’s speedy trial rights derived under Ohio Revised
       Code §2945.71 were violated when counsel for the appellant
       inadvertently and contrary to the appellant’s express authority,


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       filed with the Court a waiver of speedy trial rights and as such
       provided ineffective assistance of counsel to the appellant.

       {¶13} In his first assignment of error, Brewer argues that he was denied

effective assistance of trial counsel because trial counsel failed to show him the

surveillance video of the crime scene. Specifically, Brewer argues that, had he

seen the surveillance video which showed his vehicle at the crime scene, he may

have taken a plea deal. In his fifth assignment of error, Brewer argues that his first

appointed trial counsel was ineffective for filing the July 5, 2011 continuance

motion thereby waiving his speedy trial rights.

       {¶14} A defendant asserting a claim of ineffective assistance of counsel

must establish that counsel’s performance was deficient or unreasonable under the

circumstances, and counsel’s deficient performance prejudiced him. State v. Kole,

92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984).       Prejudice results when “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142

(1989), citing Strickland at 694.      “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

       {¶15} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

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prompted by reasonable professional judgment. Strickland at 687. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. Bradley at 141-142, citing State v. Lytle, 48

Ohio St.2d 391, 396 (1976).

       {¶16} The State first provided Brewer with discovery on June 28, 2011 and

supplemental discovery on July 19, 2011. (Doc. Nos. 10, 14). During the August

31, 2011 hearing prior to trial, Brewer’s first attorney, Shane M. Leuthold,

indicated that he had spent 2½ hours going over discovery items with Brewer,

including DVDs. (Aug, 31, 2011 Tr. at 6-7). Brewer did not contradict this

statement at the hearing. (Id.). During the October 11, 2011 motion hearing, after

Leuthold withdrew from the case, the State represented to the trial court that it

“took great pains to make arrangements with Mr. Leuthold at the jail and Mr.

Brewer to show the surveillance video from the store.” (Oct. 11, 2011 Tr. at 5-7).

Brewer’s newly appointed counsel, Randy Hoffman, confirmed that the State had

previously supplied Leuthold a copy of the surveillance video. (Id. at 6). At the

October 24, 2011 hearing, Hoffman represented to the trial court that he met with


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Brewer for “a little over two hours,” and that counsel “watched the video a couple

times.” (Oct. 24, 2011 Tr. at 8). At sentencing, Hoffman indicated that “[i]t was

his understanding that a flash drive was brought from the prosecutor’s office to

have [Brewer] see it.” (Nov. 16, 2011 Tr. at 7).        Brewer admitted that “the

prosecutor sent an assistant over there with a copy of the flash drive and set us up

with a computer from the prosecutor’s office”; though, Brewer alleged that the

video he saw was not the same video that was played during the trial. (Id. at 8-9).

       {¶17} Based upon the foregoing, we conclude that the record demonstrates

that Brewer was provided an opportunity to watch the surveillance video prior to

trial contrary to his bald assertions otherwise. Therefore, the record fails to

demonstrate that counsel was deficient for failing to show him the evidence

against him prior to trial. Furthermore, Brewer has failed to demonstrate prejudice

in this case beyond merely speculating that he might have entered into a plea

agreement.

       {¶18} Brewer’s argument that trial counsel was ineffective for seeking a

continuance of the trial also lacks merit.     The record indicates that Leuthold

requested to continue Brewer’s trial because Leuthold had three previously

scheduled jury trials for the same day. (Doc. No. 12); (Feb. 2, 2012 Tr. at 4).

Consequently, the continuance request was necessary if Leuthold was to continue

his representation of Brewer. Aside from that, whether to request a continuance,


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and thereby waiving a defendant’s speedy trial time, is a matter of trial strategy

and not ineffective assistance, even when the continuance is filed without the

defendant’s consent. State v. Mitchell, 10th Dist. No. 10AP-756, 2011-Ohio-3818,

¶ 53, citing State v. Hill, 10th Dist. No. 09AP-398, 2010-Ohio-1687, ¶ 13. Brewer

has failed to demonstrate how he was prejudiced by the continuance and the

waiver of his speedy trial rights as well.

       {¶19} Brewer’s first and fifth assignments of error are, therefore, overruled.

                            Assignment of Error No. 2

       The evidence of the property taken as a result of the theft offense
       was not presented with sufficient clarity and precision in order
       for the trier of fact to ascertain beyond a reasonable doubt a
       sufficient quantity and value of property to establish the
       threshold of a felony offense, that of an amount over $1,000.00,
       in that taxes were included in the value of the property and no
       adjustment was made to separate out that issue from the value of
       the goods in question.

       {¶20} In his second assignment of error, Brewer argues that the State failed

to submit evidence demonstrating that the value of the stolen cigarettes was over

$1,000. Additionally, Brewer argues that the testimony concerning the value of

the stolen cigarettes inappropriately included taxes contrary to the rule in State v.

Adams, 39 Ohio St.3d 186 (1988), syllabus.

       {¶21} When reviewing the sufficiency of the evidence, “[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

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the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259

(1981), paragraph two of the syllabus.

       {¶22} Brewer was convicted of theft in violation of R.C. 2913.02(A)(1),

which provides, in pertinent part, “[n]o person, with purpose to deprive the owner

of property * * * shall knowingly obtain or exert control over * * * the property *

* * [w]ithout the consent of the owner or person authorized to give consent * * *.”

If the value of the property stolen is $1,000 or more but less than $7,500 hundred,

the theft offense is a fifth degree felony. R.C. 2913.02(B)(2).

       {¶23} At trial, the store owner, Unmesh Brahmbhatt, and the store

manager, Terri Born, both testified that, based upon the inventory records before

and after the crime, 137 cartons of cigarettes were stolen. (Nov. 9-10, 2011 Tr. at

162, 298). Born further testified that she watched the surveillance video and

discovered that the suspect used an empty trash can to load and carry cartons of

cigarettes from the store. (Id. at 156, 161). Born testified that she attempted to

duplicate the manner in which the suspect stole the cigarettes and determined that

“over fifty cartons” could be loosely loaded into a trash can. (Id. at 156).

Brahmbhatt brought a trash can from the convenience store with 50 cartons of

cigarettes to the trial court for the jury to observe. (Id. at 298-301). The trash can

was less than half-full, according to Brahmbhatt. (Id. at 301). Born provided a list

of the different brands of cigarettes stolen and their price per carton, which was


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admitted into evidence at trial. (Id. at 157); (State’s Ex. 16). Virginia Slims, the

most expensive carton of cigarettes, were $53.83/carton; Pyramid, the least

expensive carton of cigarettes, were $34.35/carton. (Nov. 9-10, 2011 Tr. at 158);

(State’s Ex. 16).

       {¶24} Construing this evidence in a light most favorable to the State, the

record contains evidence from which a rational trier of fact could conclude that the

value of the property Brewer stole exceeded $1,000. The value of 137 cartons of

Virginia Slims, the most expensive cigarettes, is $7,374.71. Even taking the

evidence in a light most favorable to Brewer, the value of 50 cartons of Pyramid

cigarettes, the least amount of the cheapest brand of cigarettes, is $1,717.50—well

over the $1,000 felony threshold.

       {¶25} Brewer next argues that the price of the cigarettes inappropriately

included taxes contrary to the rule in State v. Adams, 39 Ohio St.3d 186. The Ohio

Supreme Court in Adams held that “Ohio sales tax shall not be included in the

determination under R.C. 2913.61(D)(2) of the replacement cost of stolen personal

effects and household goods.” 39 Ohio St.3d 186, syllabus (emphasis added).

The Court concluded that Ohio sales tax should not be included for purposes of

computing the value of stolen property, because Ohio sales tax is subject to

multiple exemptions, i.e., churches, non-profits, the State, and its political

subdivisions, and thus, not automatically added to every sale of personal goods. Id.


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at 187. The Court reasoned that it was conceivable that a defendant who stole an

item from a person/entity subject to Ohio sales tax could be convicted of a felony;

whereas, a defendant who stole the same item from a tax-exempt person/entity

could only be convicted of a misdemeanor. Id. at 188. The Court concluded that

such an unequal application of R.C. 2913.51 violates the “uniform operation”

requirement of Section 26, Article II of the Ohio Constitution. Id. at 187-188.

       {¶26} Adams has no application here. Brewer is not alleging that Ohio

sales tax was included for purposes of calculating the value of the cigarettes he

stole. Rather, Brewer is alleging that the value of the cartons of cigarettes should

not have included the excise tax levied under R.C. 5743.02. The excise tax levied

under R.C. 5743.02 is not subject to multiple exemptions like Ohio sales tax and is

not subject to the same “uniform operation” violation identified in Adams.

       {¶27} Brewer’s second assignment of error is, therefore, overruled.

                           Assignment of Error No. 3

       Whether the evidence and facts surrounding the Appellant’s
       prior conviction admitted under Evidence Rule 404(B) to show
       the identity of the Appellant did not have sufficient unique
       details which could be matched to the offense charged in order
       to establish the Appellant’s identity in the offense charged and
       improperly served to attack the Appellants [sic] character.

       {¶28} In his third assignment of error, Brewer argues that the trial court

abused its discretion by allowing evidence at trial of his prior breaking and

entering conviction under Evid.R. 404(B) to establish his identity.

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      {¶29} “‘The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.’” State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, ¶ 74, quoting State v. Sage, 31 Ohio St.3d 173 (1987), paragraph

two of the syllabus. An abuse of discretion is more than an error of judgment;

rather, it implies that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Adams, 62 Ohio St.2d at 157.

      {¶30} “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.”

Evid.R. 404(B). However, it may be admissible for proof of motive, opportunity,

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

Id.

      {¶31} “‘Other acts’ may be introduced to establish the identity of a

perpetrator by showing that he has committed similar crimes and that a distinct,

identifiable scheme, plan, or system was used in the commission of the charged

offense.’” State v. Lowe, 69 Ohio St.3d 527, 531 (1994), quoting State v. Smith,

49 Ohio St.3d 137, 141 (1990). While it is unnecessary that the other acts be the

same or similar crime as the defendant is presently charged, the “the other-acts

evidence must be related to and share common features with the crime in

question” demonstrating a modus operandi, or “behavior fingerprint,” identifiable




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with the defendant. Lowe, 69 Ohio St.3d at 531, citing State v. Jamison, 49 Ohio

St.3d 182 (1990), syllabus; State v. Hutton, 53 Ohio St.3d 36, 40 (1990).

       {¶32} In the present case, Brewer was convicted for breaking and entering

the convenience store at a Shell gas station by smashing the front glass door of the

store around 2:42 a.m. on May 16, 2011. (Nov. 9-10, 2011 Tr. at 111, 172).

Brewer used an empty trash can from the gas station to load and carry 137 cartons

of cigarettes from the store to the trunk of his vehicle. (Id. at 156, 161-162, 173,

192, 298). During the commission of the offense, Brewer covered his face with a

mask and used gloves to cover his hands. (Id. at 116, 119, 161, 173, 190-195).

Carey Police Officer Collins pursued Brewer as he was leaving the crime scene,

but, after Brewer drove out of Collin’s line of sight, Brewer drove his vehicle off

the road 300 yards into a muddy field. (Id. at 111-112, 126, 129, 197). Brewer’s

vehicle was later found abandoned in the field, only about six-tenths of a mile

from the convenience store. (Id. at 107, 126, 146, 168, 204). Law enforcement did

not find any cartons of cigarettes in Brewer’s vehicle but did find a piece of glass

similar to the broken glass found at the crime scene. (Id. at 126-127, 201, 207).

       {¶33} During the trial, Findlay Police Officer Shawn Nungester testified

that, in February 2008, Brewer was apprehended after breaking and entering into a

gas station convenience store around 4:00 a.m. (Id. at 215-220).            Nungester

testified that, during the commission of the February 2008 offense, Brewer wore a


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mask and gloves; Brewer gained entrance to the store by breaking the glass front

door of the store; and, Brewer carried and loaded cartons of cigarettes from the

store into the trunk of his car using a trash can. (Id.). Brewer was apprehended

when he drove his vehicle into a muddy field and became stuck while trying to

evade law enforcement’s pursuit. (Id. at 217).

       {¶34} Based upon the foregoing, we cannot conclude that the trial court

abused its discretion by allowing Officer Nungester’s testimony concerning

Brewer’s 2008 breaking and entering conviction.        To commit both offenses,

Brewer broke a glass door to gain entrance to a gas station convenience store

where he used a trash can he found on the scene to load and carry cartons of

cigarettes to his vehicle. Brewer also drove his vehicle into a field to escape law

enforcement and abandoned his vehicle while attempting to evade the police in

both cases.    Consequently, Officer’s Nungester’s testimony was offered to

demonstrate a “unique, identifiable plan of criminal activity” to establish Brewer’s

identity under Evid.R. 404(B); and therefore, the trial court did not abuse its

discretion by admitting the other acts testimony. Jamison, syllabus.

       {¶35} Brewer’s third assignment of error is, therefore, overruled.

                          Assignment of Error No. 4

       Whether the conviction of the Appellant, for companion
       charges of breaking and entering, theft, and criminal tools
       given the fact that they arose out of a single transaction and


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       with a single animus must have been merged as allied offenses
       of similar import for purposes of sentencing.

       {¶36} In his fourth assignment of error, Brewer argues that the trial court

erred by failing to merge all of his offenses under R.C. 2941.25 and State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

       {¶37} Whether offenses are allied offenses of similar import presents a

question of law we review de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-

Ohio-5733, ¶ 15.      R.C. 2941.25, Ohio’s multiple-count statute, provides in

relevant part:

       (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, * * * and the defendant may be

       convicted of all of them.

       {¶38} Whether offenses are allied offenses under R.C. 2941.25 is a two-

part inquiry. Johnson, 2010-Ohio-6314, at ¶ 47-51.         First, the court must

determine “whether it is possible to commit one offense and commit the other with

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the same conduct, not whether it is possible to commit the one without committing

the other.” Id. at ¶ 48, citing State v. Blankenship, 38 Ohio St.3d 116, 119 (1988).

This first inquiry does not require the court to engage in hypothetical or abstract

comparison of the offenses at issue. Id. at ¶ 47.        Rather, “[i]f 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.

       {¶39} If the court answers the first inquiry in the affirmative; then second,

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,

citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J.,

dissenting).

       {¶40} If the court answers both the first and second questions affirmatively,

then the offenses are allied offenses of similar import and will be merged. Id. at ¶

50.

       {¶41} However, “if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each offense,”

then the offenses will not merge. Id. at ¶ 51, citing R.C. 2941.25(B).




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      {¶42} As used in R.C. 2941.25(B), “animus” means “purpose or, more

properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131 (1979).

      {¶43} Brewer was convicted of breaking and entering under R.C.

2911.13(A); theft under R.C. 2913.02(A)(1); and possessing criminal tools under

R.C. 2923.24(A).    To be convicted of breaking and entering, the State was

required to prove that Brewer, “by force, stealth, or deception,” trespassed in an

unoccupied structure “with purpose to commit therein any theft offense * * * or

any felony.” R.C. 2911.13(A). To be convicted of theft, the State was required to

prove that Brewer, “with purpose to deprive the owner of property,” “knowingly

obtain[ed] or exert[ed] control” over the property “[w]ithout the consent of the

owner or person authorized to give consent.” R.C. 2913.02(A)(1).           To be

convicted of possession of criminal tools, the State had to prove that Brewer

possessed or had under his control “any substance, device, instrument, or article,

with purpose to use it criminally.” R.C. 2923.24(A).

      {¶44} Count Three of the indictment alleged that Brewer possessed the

following criminal tools: a mask, gloves, and “glass-breaking tool.” (Doc. No. 1).

The record contains no bill of particulars. During closing argument, however, the

State argued that Brewer “wore a mask and gloves to conceal his identity, to

prevent any fingerprints being left behind or DNA.” (Nov. 9-10, 2011 Tr. at 366).

The State further argued that Brewer’s criminal purpose for possessing the mask


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and gloves was to “facilitate the crime of breaking and entering to help conceal his

identity.” (Id. at 370). The State also stated that part of Brewer’s modus operandi

was to use a mask and gloves to conceal his identity. (Id. at 374).

                          Theft and Breaking & Entering

       {¶45} Examining the elements of theft in violation of R.C. 2913.02(A)(1)

and breaking and entering in violation of R.C. 2911.13(A), we agree with the

Court of Appeals for the Twelfth District that these offenses cannot be committed

with the same conduct, and therefore, are not allied offenses under R.C.

2941.25(A). State v. Ayers, 12th Dist. Nos. CA2010-12-119, CA2010-12-120,

2011-Ohio-4719, ¶ 34, citing Johnson, 2010-Ohio-6314, at ¶ 51. While it may

have been necessary for Brewer to break into the convenience store to steal the

cartons of cigarettes, the conduct required to commit one of the offenses will never

result in the commission of the other; and therefore, the trial court did not err by

failing to merge these offenses. Id.

                     Theft and Possession of Criminal Tools

       {¶46} It is possible to commit a theft and possess criminal tools with the

same conduct. Johnson, 2010-Ohio-6314, at ¶ 48. For example, when a defendant

uses a drill, pipe cutter, wire cutter, and a wrench to disassemble, detach, and steal

an air conditioning unit from a building, he has committed a theft offense while, at

the same time, possessing criminal tools. State v. Simmonds, 12th Dist. No.


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CA2011-05-038, 2012-Ohio-1479.          To reach this conclusion, the Court in

Simmonds noted that it was undisputed that the defendant used the tools during the

commission of the theft, and, after reviewing the bill of particulars and the State’s

closing arguments, it was clear that the State prosecuted the defendant for the

possession of criminal tools based upon his conduct in engaging in the theft. Id. at

¶ 19-23. Consequently, the Court determined that the defendant acted with the

same animus possessing the criminal tools as the theft offense, i.e. to steal the air

conditioning unit from the building; and therefore, the offenses were allied

offenses. Id. at ¶ 23.

       {¶47} Next, we must determine whether Brewer possessed the criminal

tools with a separate purpose or motive (animus) from the theft offense. Johnson,

2010-Ohio-6314, at ¶ 51, citing R.C. 2941.25(B); Logan, 60 Ohio St.2d at 131

(“animus” means “purpose or, more properly, immediate motive.”). Simmonds is

instructive on that question. The defendant in Simmonds used the criminal tools to

disassemble and detach the air conditioning unit from the building so he could

exert control over the air conditioning unit to deprive the church of its property,

i.e. to commit the theft offense. During closing arguments, the State argued

Brewer’s immediate motive or purpose for using the mask and gloves, however,

was to conceal his identity and prevent his subsequent apprehension. (Nov. 9-10,

2011 Tr. at 366, 370, 374).      Concealing one’s identity and preventing one’s


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subsequent apprehension are distinct and separate purposes or motives (animus)

from committing the theft offense, itself. See State v. Johnson, 1st Dist. No. C-

970180, * 3, Fn. 14 (May 1, 1998) (refusing to get medical treatment for child

victim in order to conceal the crime is a separate animus for endangering children

conviction); State v. Cudgel, 10th Dist. No. 99AP-532, *9 (Mar. 9, 2000) (same);

State v. Siller, 8th Dist. No. 75139, *4 (Oct. 25, 2000) (beating victim to the point

she would not be able to identify the defendant or assist in his apprehension is a

separate animus for attempted murder conviction); State v. White, 135 Ohio

App.3d 481, 490 (dragging a victim from an open place to a concealed place for

cover during a rape constitutes a separate animus for kidnapping conviction).

Therefore, since Brewer possessed the criminal tools in this case with an animus

separate from the theft offense, the trial court did not err by failing to merge the

possession of criminal tools conviction with Brewer’s theft conviction.

             Breaking & Entering and Possession of Criminal Tools

       {¶48} It is possible to commit the offenses of breaking and entering and

possession of criminal tools with the same conduct and the same animus; for

example, when a defendant uses a crowbar to break into a business to steal metal

for scrap. State v. VanValkenburg, 5th Dist. No. 11-CA-91, 2012-Ohio-1213.

However this case is distinguishable from VanValkenburg because Brewer’s

possession of criminal tools conviction is supported by a separate animus. Brewer


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was not only indicted for possession of criminal tools because he used the “glass-

breaking tool” to gain entrance into the convenience store, but also because he

used the mask and gloves to conceal his identity and to prevent his subsequent

apprehension. (Doc. No. 1). In fact, the State did not even mention Brewer’s use

of the “glass-breaking tool” during closing argument, but instead, focused upon

Brewer’s use of the mask and gloves for the aforementioned purposes. (Nov. 9-10,

2011 Tr. at 366, 370, 374). Brewer’s motive or purpose (animus) of concealing

his identity and preventing his subsequent apprehension was separate and distinct

from his motive or purpose (animus) of breaking and entering. Therefore, the trial

court did not err by failing to merge Brewer’s criminal tools conviction with his

breaking and entering conviction.

       {¶49} Brewer’s fourth assignment of error is, therefore, overruled.

       {¶50} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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