[Cite as State v. Haller, 2012-Ohio-5233.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-11-34

        v.

RONALD HALLER,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2010 0350

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: November 13, 2012




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
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ROGERS, J.

       {¶1} Defendant-Appellant, Ronald Haller, appeals the judgment of the

Court of Common Pleas of Allen County finding him guilty of three counts of

complicity to commit aggravated burglary, three counts of complicity to commit

aggravated robbery, three counts of complicity to commit abduction, two counts of

complicity to commit burglary, two counts of complicity to commit grand theft,

and one count of receiving stolen property, and sentencing him to an aggregate

prison term of thirty-one years. On appeal, Haller contends that the verdict forms

for Counts X and XII were insufficient under R.C. 2945.75 to support his

convictions for second degree felonies; that the trial court erred when it did not

merge Counts XI, XII, and XV, and when it did not merge Counts XIII and XIV;

that the trial court erred by not declaring R.C. 2941.25 unconstitutional; that the

trial court erred in imposing multiple sentences for the same act in violation of

R.C. 2941.25; that the trial court erred in instructing the jury on complicity; that he

was denied effective assistance of counsel; and that the convictions were against

the manifest weight of the evidence. Based on the following, we affirm in part

and reverse in part the trial court’s judgment.

       {¶2} This matter stems from a series of burglaries that occurred at five

separate residences in Allen County between November 2008 and May 2010.

Each burglary was committed by an individual named Benny Woolwine

(“Woolwine”). The first burglary occurred on November 5, 2008 at a residence on

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Ottawa Road (“Ottawa Burglary”). The second burglary occurred on August 26,

2009 at a residence on Highland Lakes Drive (“Highland Burglary”). The first

two burglaries were committed when the residents were away and resulted in the

theft of guns and other items from the residences. The third burglary occurred on

December 14, 2009 at a residence on Amherst Road (“Amherst Burglary”). The

fourth burglary occurred on May 5, 2010 at a residence on Gomer Road (“Gomer

Burglary”).   The fifth burglary occurred on May 19, 2010 at a residence on

Kissing Hollow Drive (“Kissing Hollow Burglary”). The last three burglaries

were committed when someone other than an accomplice was present in the

residence. On each occasion, Woolwine held an individual at gunpoint, bound the

individual’s hands and feet, and proceeded to steal various items from the

residence. In July 2010, law enforcement arrested Woolwine in connection with

the foregoing burglaries. Eventually, Woolwine confessed that he committed the

burglaries and that Haller had aided and/or abetted him in each of the burglaries.

       {¶3} On October 14, 2010, the Allen County Grand Jury returned a fifteen

count indictment against Haller. As to the Amherst Burglary, Haller was charged

as follows: Count I, complicity to commit aggravated burglary in violation of R.C.

2911.11(A) and R.C. 2923.03(A)(2), a felony of the first degree with a firearm

specification under R.C. 2941.145(A); Count II, complicity to commit aggravated

robbery in violation of R.C. 2911.01(A)(1) and R.C. 2923.03(A)(2), a felony of

the first degree with a firearm specification under R.C. 2941.145(A); and, Count

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III, complicity to commit abduction in violation of R.C. 2905.02(A)(2) and R.C.

2923.03(A)(2), a felony of the third degree with a firearm specification under R.C.

2941.145(A).   As to the Gomer Burglary, Haller was charged as follows: Count

IV, complicity to commit aggravated burglary in violation of R.C. 2911.11(A) and

R.C. 2923.03(A)(2), a felony of the first degree with a firearm specification under

R.C. 2941.145(A); Count V, complicity to commit aggravated robbery in violation

of R.C. 2911.01(A)(1) and R.C. 2923.03(A)(2), a felony of the first degree with a

firearm specification under R.C. 2941.145(A) and a forfeiture specification under

R.C. 2981.02(A)(3) and R.C. 2941.1417; Count VI, complicity to commit

abduction in violation of R.C. 2905.02(A)(2) and R.C. 2923.03(A)(2), a felony of

the third degree with a firearm specification under R.C. 2941.145(A); Count VII,

complicity to commit kidnapping in violation of R.C. 2905.01(A)(2) and R.C.

2923.03(A)(2), a felony of the first degree with a firearm specification under R.C.

2941.145(A). As to the Kissing Hollow Burglary, Haller was charged as follows:

Count VIII, complicity to commit aggravated robbery in violation of R.C.

2911.01(A)(1) and R.C. 2923.03(A)(2), a felony of the first degree with a firearm

specification under R.C. 2941.145(A); Count IX, complicity to commit aggravated

burglary in violation of R.C. 2911.11(A) and R.C. 2923.03(A)(2), a felony of the

first degree with a firearm specification under R.C. 2941.145(A); and, Count X,

complicity to commit abduction in violation of R.C. 2905.02(A)(2) and R.C.

2923.03(A)(2), a felony of the third degree with a firearm specification under R.C.

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2941.145(A). As to the Ottawa Burglary, Haller was charged as follows: Count

XI, complicity to commit burglary in violation of R.C. 2911.12(A)(2) and R.C.

2923.03(A)(2), a felony of the second degree; and, Count XII, complicity to

commit grand theft in violation of R.C. 2913.02(A)(1) & (B)(4) and R.C.

2923.03(A)(2), a felony of the third degree. As to the Highland Burglary, Haller

was charged as follows: Count XIII, complicity to commit burglary in violation of

R.C. 2911.12(A)(2) and R.C. 2923.03(A)(2), a felony of the second degree; and,

Count XIV, complicity to commit grand theft in violation of R.C. 2913.02(A)(1)

& (B)(4) and R.C. 2923.03(A)(2), a felony of the third degree. Finally, Haller was

charged with Count XV, receiving stolen property in violation of R.C. 2913.51(A),

a felony of the fourth degree.

       {¶4} On October 18, 2010, Haller entered pleas of not guilty to all counts in

the indictment.

       {¶5} On April 11, 2011, the matter proceeded to a jury trial. Prior to trial,

the State dismissed Count VII.      On April 15, 2011, the jury returned guilty

verdicts on all remaining counts and specifications. On May 19, 2011, the matter

proceeded to sentencing. As to the Amherst Burglary, the trial court sentenced

Haller to a six-year prison term on Count I, a six-year prison term on Count II, and

a mandatory three-year prison term on the firearm specification, and ordered

Counts I and II be served concurrently to each other, but consecutively to the



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sentence imposed for the firearm specification.1 As to the Gomer Burglary, the

trial court sentenced Haller to a six-year prison term on Count IV, a six-year

prison term on Count V,2 and a mandatory three-year prison term on the firearm

specification, and ordered Counts IV and V be served concurrently to each other,

but consecutively to the sentence imposed for the firearm specification.3 As to the

Kissing Hollow Burglary, the trial court sentenced Haller to a six-year prison term

on Count VIII, a six-year prison term on Count IX, and a mandatory three-year

prison term on the firearm specification, and ordered Counts VIII and IX be served

concurrently to each other, but consecutively to the sentence imposed for the

firearm specification.4 As to the Ottawa Burglary, the trial court sentenced Haller

to a two-year prison term on Count XI and a two-year prison term on Count XII,

and ordered Counts XI and XII be served concurrently to each other. As to the

Highland Burglary, the trial court sentenced Haller to a two-year prison term on

Count XIII and a two-year prison term on Count XIV, and ordered Counts XIII

and XIV be served concurrently to each other. As for Count XV, the trial court

sentenced Haller to a one-year prison term to be served concurrently to Count XII.


1
  Prior to sentencing, the trial court determined that Count II, complicity to commit aggravated robbery, and
Count III, complicity to commit abduction, were allied offenses of similar import. The State elected to
pursue Count II for purposes of sentencing.
2
  As to the forfeiture specification associated with Count V, the jury found that Haller’s vehicle, a 2000
Chevrolet Suburban, was subject to forfeiture.
3
  Prior to sentencing, the trial court determined that Count V, complicity to commit aggravated robbery,
and Count VI, complicity to commit abduction, were allied offenses of similar import. The State elected to
pursue Count V for purposes of sentencing.
4
  Prior to sentencing, the trial court determined that Count VIII, complicity to commit aggravated robbery,
and Count X, complicity to commit abduction, were allied offenses of similar import. The State elected to
pursue Count VIII for purposes of sentencing.

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In sum, the Haller was sentenced to an aggregate prison term of thirty-one years.

The trial court further ordered Haller to pay restitution to the victims in an amount

totaling $15,155.00,5 and, after a forfeiture hearing, that his vehicle, a 2000

Chevrolet Suburban, be forfeited to the Allen County Commissioners.

        {¶6} It is from this judgment Haller appeals, presenting the following

assignments of error for our review.

                                  Assignment of Error No. I

        THE TRIAL COURT ERRED BY ENTERING A JUDGMENT
        OF CONVICTION AS TO COUNTS XI AND XII
        (BURGLARY) AS FELONIES OF THE SECOND DEGREE,
        AND SENTENCING ACCORDINGLY, AS THE VERDICT
        FORMS WERE SUFFICIENT AS TO EACH ONLY FOR THE
        LESSER OFFENSES OF BURGLARY, FELONIES OF THE
        FOURTH DEGREE.

                                 Assignment of Error No. II

        MR. HALLER WAS DEPRIVED OF HIS CONSTITUTIONAL
        RIGHTS TO TRIAL BY JURY, NOTICE, DUE PROCESS,
        AND PROOF BEYOND A REASONABLE DOUBT WHEN
        THE TRIAL COURT REFUSED TO MERGE COUNTS XI,
        XII, AND XV TOGETHER AND COUNTS XIII AND XIV
        TOGETHER AS ALLIED OFFENSES OF SIMILAR IMPORT.

                                 Assignment of Error No. III

        THE TRIAL COURT ERRED BY NOT DECLARING R.C.
        §2941.25 UNCONSTITUTIONAL  AND  VOID   FOR
        VAGUENESS, AS A RESULT OF WHICH THE TRIAL
        COURT SHOULD HAVE MERGED ALL ALLIED
        OFFENSES.


5
 The trial court ordered that Haller and Woolwine were jointly and severally responsible for the total
amount of the restitution.

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                          Assignment of Error No. IV

      THE TRIAL COURT ERRED BY IMPOSING MULTIPLE
      SENTENCES FOR THE SAME ACT, IN VIOLATION OF
      R.C. §2941.25 AND OF THE DOUBLE JEOPARDY CLAUSES
      OF THE UNITED STATES CONSTITUTION AND THE
      OHIO CONSTITUTION.

                          Assignment of Error No. V

      THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
      ON COMPLICITY.

                          Assignment of Error No. VI

      MR.   HALLER   WAS   DENIED    THE EFFECTIVE
      ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED
      TO OBJECT TO MISLEADING AND INCOMPLETE JURY
      INSTRUCTIONS AS TO COMPLICITY.

                         Assignment of Error No. VII

      THE CONVICTIONS WERE AGAINST THE MANIFEST
      WEIGHT OF THE EVIDENCE.

      {¶7} Due to the nature of Haller’s assignments of error, we elect to address

the assignments out of order and combine the assignments where appropriate.

                          Assignment of Error No. VII

      {¶8} In his seventh assignment of error, Haller contends that the jury’s

verdicts were against the manifest weight of the evidence. Specifically, Haller

argues that the evidence adduced at trial establishes that he was, at most, an

accessory after the fact, not an accomplice to the crimes committed by Woolwine.

We disagree.


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      {¶9} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, ¶ 119, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),

superseded by constitutional amendment on other grounds as stated by State v.

Smith, 80 Ohio St.3d 89 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist. 1983). Only in exceptional cases, where the evidence “weighs heavily

against the conviction,” should an appellate court overturn the trial court’s

judgment. Id.

      {¶10} Initially, we note that Haller’s contention challenging the manifest

weight of the evidence extends only to the issue of complicity. Haller does not

dispute the occurrence of the burglaries or the offenses that occurred in

conjunction with the burglaries. Accordingly, our analysis will focus on whether

the fact finder lost its way in determining whether Haller aided and/or abetted

Woolwine in committing the burglaries.

      {¶11} R.C. 2923.03, Ohio’s complicity statute, provides, in relevant part:

      (A) No person, acting with the kind of culpability required for the
      commission of an offense, shall do any of the following:


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       ***

       (2) Aid or abet another in committing the offense[.]

       {¶12} “To support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the principal

in the commission of the crime, and that the defendant shared the criminal intent

of the principal. Such intent may be inferred from the circumstances surrounding

the crime.” State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus.    In particular,

the defendant’s criminal intent may be inferred from his or her presence,

companionship, and conduct before and after the offense is committed. In re T.K.,

109 Ohio St.3d 512, 2006-Ohio-3056, ¶ 13, citing Johnson at 245. The elements

of aiding and abetting another in the commission of a crime may be demonstrated

by both direct and circumstantial evidence. In re Williams, 3d Dist. No. 9-10-64,

2011-Ohio-4338, ¶ 20, citing State v. Lett, 160 Ohio App.3d 46, 2005-Ohio-1308,

¶ 29 (8th Dist.).

       {¶13} According to the testimony adduced at trial, Woolwine, a convicted

felon, moved to Ohio in 2007. In May 2008, Woolwine moved to Lima to live

with a friend. Woolwine testified that prior to May 2008, he had never been to

Lima nor was he familiar with the areas surrounding Lima.            Shortly after

Woolwine arrived in Lima, there was a fire at a rental property that Haller oversaw

as landlord. When Haller responded to the fire, he met Woolwine at the property.

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Woolwine testified that Haller asked him whether he wanted to help repair the

damaged property, and he agreed. Haller testified that he liked Woolwine’s work

on the rental property and continued to give Woolwine construction projects.

Woolwine testified that he informed Haller of his criminal history shortly after he

met him, and that despite his criminal history Haller treated him very well and, as

a result, he looked up to Haller.

                                    Ottawa Burglary

       {¶14} Todd Lhamon (“Lhamon”) testified that he resided at the Ottawa

Road residence when it was burglarized on November 5, 2008. Lhamon testified

that prior to the burglary he owned and operated a business in Lima that sold all-

terrain vehicles, boats, jet skis, and lawn mowers. Lhamon testified that in 2002

he decided to sell his business and that Haller was interested in purchasing the

business. Lhamon explained that in order to purchase the business each of the

manufacturers that sold their products through the business had to approve the

sale. Lhamon testified that prior to closing his business Haller had visited his

Ottawa Road residence on several occasions to discuss the business. Lhamon

testified that despite Haller’s interest in the business one of the manufacturers did

not approve the sale, and, as a result, Haller could not purchase the business.

       {¶15} Woolwine testified that Haller informed him of his failed attempt to

purchase Lhamon’s business. Woolwine testified that he asked Haller “why don’t

you do something about it?” and that Haller replied that he could not do anything.

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Trial Tr., p. 149. Woolwine testified that in light of how Haller had treated him he

felt obligated to help Haller, so he offered to do something to Lhamon. Woolwine

testified that Haller showed him where Lhamon lived and informed him that he

would find guns in the residence. On November 5, 2008, Woolwine burglarized

Lhamon’s residence. Woolwine testified that he stole several guns, a crossbow, a

compound bow, several knives, a white Xbox video game console (“Xbox”), and

several video games and movies. Woolwine testified that immediately following

the burglary he called Haller informing him of the burglary and that he was

driving to his (Haller’s) residence. Woolwine testified that he left all of the stolen

items with Haller, except for the Xbox, which he kept for personal use. Woolwine

testified that he eventually gave the Xbox to Haller, because Haller wanted to give

it to his girlfriend, Elizabeth Rivera (“Rivera”).

       {¶16} Lhamon testified that several guns, a Foxfire crossbow, a compound

bow, some Gerber knives, a white Xbox, and several video games and movies

where stolen from his residence on November 5, 2008. At trial, Lhamon identified

State’s exhibit 43 as one of the guns stolen from his residence.

       {¶17} Rivera testified that she and Haller were in a relationship between

January 2009 and July 2010. Rivera testified that in February 2010, Haller asked

her to sell several items on eBay and that she listed the items as being sold from

her residence in Sidney, Ohio. Rivera testified that Haller gave her a Foxfire

crossbow, a compound bow, a Gerber knife, as well as other miscellaneous items

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to sell on eBay. Rivera testified that she sold the Foxfire crossbow, the compound

bow, and the Gerber knife and transferred the proceeds to Haller via a Paypal

account. Rivera also testified that in December 2009 Haller sold her a used Xbox

that he received from Woolwine.

       {¶18} Detective Mark Baker (“Detective Baker”), of the Allen County

Sheriff’s Office, testified that he arrested Haller. Detective Baker testified that a

subsequent inventory search of the vehicle Haller was driving at the time of his

arrest yielded a shotgun. At trial, Detective Baker identified State’s exhibit 43 as

the shotgun found in Haller’s vehicle.

       {¶19} Haller testified that he informed Woolwine of the failed attempt to

purchase Lhamon’s business, but never told Woolwine that he was angry with

Lhamon or that he wanted to get even with Lhamon. Haller testified that he never

asked Woolwine to burglarize Lhamon’s residence, nor was he aware that

Woolwine had committed the burglary until Woolwine’s arrest. Haller testified

that he bought the shotgun marked as State’s exhibit 43 from Woolwine, but had

no idea that Woolwine had stolen the shotgun from Lhamon’s residence. Haller

also testified that none of the items he asked Rivera to sell on eBay were from

Woolwine.




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                                Highland Burglary

       {¶20} David Smelcer (“Smelcer”) testified that he resided at the Highland

Lakes Drive residence when it was burglarized on August 26, 2009. Smelcer

testified that prior to the burglary he and Haller were close friends and worked

together for Colonial Insurance.    Smelcer testified that in 2005 he ended his

business and social relationship with Haller.

       {¶21} Woolwine testified that Haller informed him of how Smelcer, in his

opinion, “messed him out of [an] insurance” business.           Trial Tr., p. 157.

Woolwine testified that he burglarized Smelcer’s residence because, like Lhamon,

it was another individual who mistreated Haller. Woolwine testified that Haller

showed him where Smelcer lived and informed him that he would find guns in the

residence. Woolwine also testified that he knew Smelcer and his family were not

at the residence at the time of the burglary because Haller had informed him that

they were at the Allen County Fair.            Woolwine testified that immediately

following the burglary he called Haller to inform him of the burglary. In the same

call, Woolwine also informed Haller that he was taking the guns he stole from

Smelcer’s residence to his residence. Woolwine testified that Haller subsequently

came over to his residence and took the guns.

       {¶22} Haller testified that he informed Woolwine of his past business and

social relationship with Smelcer, but never told Woolwine that he was angry with

Smelcer or that he wanted to get even with Smelcer. Haller also testified that he

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never asked Woolwine to burglarize Smelcer’s residence, nor was he aware that

Woolwine had committed the burglary until Woolwine’s arrest.

                                 Amherst Burglary

       {¶23} Woolwine testified that he committed the Amherst Burglary because

he owed Haller money. Woolwine testified that Haller showed him the residence

on Amherst Road and informed him that he would find numerous guns in the

residence. Woolwine testified that as he was burglarizing the residence a service

man from a heating and cooling company entered the residence.          Woolwine

testified that he held the service man at gun point with a gun he received from

Haller. Woolwine testified that his girlfriend, Tammy Jones (“Jones”) picked him

up after the burglary and drove him home. Woolwine testified that he called

Haller informing him about the burglary, and that Haller came by his residence

and took several of the stolen items.

       {¶24} Paul Sell (“Sell”), a service man for a local heating and cooling

company, testified that he made a service call to the Amherst Road residence on

December 14, 2009. Sell testified that he arrived at the Amherst Road residence

between 8:00 a.m. and 8:15 a.m. Sell testified that upon entering the residence he

was confronted by a masked man wielding a gun. Sell testified that the man

bound his hands and feet and proceeded to ransack the residence. Sell testified

that the man ransacked the residence “for about a half an hour or 45 minutes * *

*.” Trial Tr., p. 278.

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      {¶25} Detective Baker testified that phone records introduced into evidence

revealed that Woolwine and Haller exchanged a series of calls on the day of the

Amherst Burglary. Specifically, Detective Baker testified that the phone records

revealed that Woolwine and Haller exchanged six calls between 10:18 a.m. and

10:27 a.m. on December 14, 2009.

      {¶26} Haller testified that he did not know anyone who resided at the

Amherst Road residence. Haller also testified that he never asked Woolwine to

burglarize the Amherst Road residence, nor was he aware that Woolwine had

committed the burglary until Woolwine’s arrest.

                                 Gomer Burglary

      {¶27} Like the Amherst Burglary, Woolwine testified that he committed

the Gomer Burglary because he owed Haller money.            Unlike the Amherst

Burglary, Woolwine learned of the Gomer Road residence when he overheard

“some guys talking about it at work.” Trial Tr., p. 170. Woolwine testified that

Haller knew he was going to burglarize the Gomer Road residence and that Haller

had arranged to pick him up after the burglary.      Woolwine testified that he

committed the burglary at approximately 11:00 a.m. Woolwine testified that after

he completed the burglary he stole the resident’s vehicle and called Haller.

Woolwine testified that he drove to a secluded location on a gravel road running

parallel to railroad tracks.   Woolwine testified that Haller had identified the

location prior to the burglary. Woolwine testified that Haller backed his silver

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Chevrolet Suburban (“Suburban”) down the gravel road to where he was waiting

and exchanged the stolen items.

       {¶28} Sherri Norris (“Norris”) testified that she lived and was present at the

Gomer Road residence when it was burglarized on May 5, 2010. Norris testified

that at approximately 10:45 a.m. she was preparing to leave her residence when

she was approached by a masked man wielding a gun. Norris testified that the

man proceeded to bind her hands and feet and ransack her residence. Norris

testified that at approximately 11:20 a.m., after the man had left, she freed herself

and sought help. Norris testified that the man stole her vehicle, a dark blue Ford

Explorer (“Explorer”).

       {¶29} Chad Roberts (“Roberts”), a railroad employee, testified that on May

5, 2010, he was working in the area where Woolwine testified to meeting Haller

following the Gomer Burglary. Roberts testified that between 11:30 a.m. and

12:00 p.m. he witnessed what appeared to be a dark blue or black Explorer driving

quickly down the gravel road.      Roberts testified that shortly after seeing the

Explorer he witnessed a large silver SUV backing down the gravel road. At trial,

Roberts identified State’s exhibit 31, a color picture of Haller’s Suburban, as the

SUV he saw backing down the gravel road on May 5, 2010.

       {¶30} Detective Baker testified that phone records introduced into evidence

revealed that Woolwine and Haller exchanged a series of calls on the day of the

Gomer Burglary. Specifically, Detective Baker testified that the phone records

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revealed that Woolwine and Haller exchanged calls at 8:01 a.m., 9:41 a.m., 11:16

a.m., and 11:35 a.m. on May 5, 2010.

        {¶31} Haller testified that he did not know anyone who resided at the

Gomer Road residence. Haller also testified that he never asked Woolwine to

burglarize the Gomer Road residence, nor was he aware that Woolwine had

committed the burglary until Woolwine’s arrest.

                             Kissing Hollow Burglary

        {¶32} Like the Amherst and Gomer burglaries, Woolwine testified that he

committed the Kissing Hollow Burglary because he owed Haller money.

Woolwine testified that Haller had pointed out several residences on Kissing

Hollow Drive, which “gave [him the] idea” to burglarize one of the residences.

Trial Tr., p. 181. Woolwine testified that the burglary occurred between 9:30 p.m.

and 10:00 p.m. Woolwine testified that after he left the Kissing Hollow residence

he called Haller and informed him that he just committed a burglary and needed a

ride.   Woolwine testified that he and Haller exchanged several phone calls

immediately following the burglary, during which they determined where and how

Haller was going to pick him up.

        {¶33} Carl Worsham (“Worsham”) testified that he lived and was present at

the Kissing Hollow residence when it was burglarized on May 19, 2010.

Worsham testified that he returned to his residence at approximate 9:30 p.m.

After parking in the garage, Worsham exited his vehicle and found a masked man

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wielding a gun. Worsham testified that the man proceeded to bind his hands and

feet and steal several items from his person and vehicle.

       {¶34} Detective Baker testified that phone records introduced into evidence

revealed that Woolwine and Haller exchanged a series of calls on the day of the

Kissing Hollow Burglary. Specifically, Detective Baker testified that the phone

records revealed that Woolwine and Haller exchanged six successive calls

between 9:19 p.m. and 10:37 p.m. on May 19, 2010.

       {¶35} Haller testified that he did not know anyone who resided at the

Kissing Hollow residence. Haller also testified that he never asked Woolwine to

burglarize the Kissing Hollow residence, nor was he aware that Woolwine had

committed the burglary until Woolwine’s arrest.

       {¶36} Upon considering the foregoing evidence, we find that Haller’s

convictions for complicity were not against the manifest weight of the evidence.

There was direct evidence, adduced through Woolwine’s testimony, that Haller

intended to and did aid and/or abet Woolwine in the commission of the Ottawa,

Highland, Amherst, Gomer, and Kissing Hollow burglaries.            In particular,

Woolwine’s testimony reveals that Haller aided and/or abetted Woolwine in

various ways for each of the burglaries.

       {¶37} With respect to the Ottawa burglary, Woolwine’s testimony reveals

that Haller showed him where Lhamon’s residence was located, which was

essential due to Woolwine’s unfamiliarity with the area, and informed him that

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Lhamon stored guns in his residence, which facilitated the resulting theft. With

respect to the Highland Burglary, Woolwine’s testimony reveals that Haller, who

was now aware of Woolwine’s willingness to commit criminal offenses on his

behalf, showed him where Smelcer’s residence was located, informed him that the

Smelcer’s would be away from their residence, which facilitated the burglary, and

informed him that Smelcer stored guns in his residence. With respect to the

Amherst Burglary, Woolwine’s testimony reveals that Haller showed him where

the residence was located, that the residence contained numerous guns, and gave

him the gun used during the burglary. With respect to the Gomer Burglary,

Woolwine’s testimony reveals that Haller had prior knowledge of the burglary and

arranged to pick Woolwine up at a pre-determined location following the burglary.

These actions could reasonably be construed as having both aided and abetted

Woolwine in the commission of the Gomer Burglary. With respect to the Kissing

Hollow Burglary, Woolwine’s testimony reveals that Haller had showed him

where the residence was located and arranged to pick him up after the burglary.

Other than Haller’s own testimony to the contrary, there was little to no evidence

contradicting Woolwine’s testimony.

       {¶38} In addition to Woolwine’s testimony, the State presented evidence

which, if believed, corroborated Woolwine’s testimony, and supports the

conclusion that Haller intended to and did aid and/or abet Woolwine in the

commission of all five burglaries. First, Haller’s girlfriend, Rivera, testified that in

                                         -20-
Case No. 1-11-34


February 2010 Haller asked her to sell a Foxfire crossbow, a compound bow, and

Gerber knife, which were the very items Woolwine testified to stealing and

Lhamon testified were missing after the burglary. In addition, Rivera testified that

Haller sold her a used Xbox that he received from Woolwine, an item which

Woolwine testified to stealing from Lhamon’s residence.           Second, Roberts’

testimony about the vehicles he saw driving down the gravel road on the day of

the Gomer Burglary corroborated Woolwine’s testimony, and identified Haller’s

vehicle as one of the vehicles he saw driving down the gravel road. Lastly,

Haller’s phone records corroborated Woolwine’s testimony that he and Haller

exchanged several phone calls following the Gomer, Amherst, and Kissing Hollow

burglaries. Considering the foregoing evidence in light of Woolwine’s testimony

and the lack of contradictory evidence, we find that Haller’s convictions for

complicity were not against the manifest weight of the evidence

       {¶39} Accordingly, we overrule Haller’s seventh assignment of error.

                        Assignments of Error Nos. V & VI

       {¶40} In his fifth and sixth assignments of error, Haller contends that the

trial court erred in instructing the jury on complicity, and that he was denied

effective assistance of counsel because his attorney did not object to the

complicity instruction given by the trial court. We disagree.

       {¶41} Initially, we note that Haller did not object to any of the jury

instructions.   In fact, defense counsel stated that he was “satisfied” with the

                                       -21-
Case No. 1-11-34


instructions. Trial Tr., p. 880. Crim.R. 30(A) provides, in relevant part, that “[o]n

appeal, a party may not assign as error the giving or the failure to give any

instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection.” Thus,

“[a]bsent plain error, the failure to object to improprieties in jury instructions, as

required by Crim.R. 30, is a waiver of the issue on appeal.” State v. Underwood, 3

Ohio St.3d 12, 13 (1983).

       {¶42} In order to have plain error under Crim.R. 52(B), there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27

(2002). Plain error is to be used “with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice.”               Id.

Accordingly, plain error exists only in the event that it can be said that “but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Biros,

78 Ohio St.3d 426, 431 (1997).

       {¶43} It is well established that a defendant is entitled to have the trial court

give complete and accurate jury instructions on all the issues raised by the

evidence. State v. Sneed, 63 Ohio St.3d 3, 9 (1992). When reviewing the trial

court’s charge, a “single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall charge.” State v. Price,

60 Ohio St.2d 136, 141 (1979), quoting Cupp v. Naughter, 414 U.S. 141, 146-147,

                                         -22-
Case No. 1-11-34


94 S.Ct. 396 (1973). Viewing the instructions in their totality, if the law is clearly

and fairly expressed, a reviewing court should not reverse a judgment based upon

an error in a portion of a charge. State v. Johnson, 3d Dist. No. 16-03-09, 2004-

Ohio-1513, ¶ 30, citing Margroff v. Cornwell Quality Tools, Inc., 81 Ohio App.3d

174, 177 (9th Dist. 1991). “Moreover, misstatements and ambiguity in a portion

of the instructions will not constitute reversible error unless the instructions are so

misleading that they prejudicially affect a substantial right of the complaining

party.” State v. Farr, 3d Dist. No. 13-06-16, 2007-Ohio-3136, ¶ 14, quoting

Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist. 1993).

       {¶44} The instruction defining complicity appeared within the context of

the instruction for Count I, aggravated burglary. The trial court’s instruction on

complicity reads as follows:

       COMPLICITY

       When two or more persons have a common purpose to commit a
       crime, and one does one first and a second performs another, those
       acting together are equally guilty of the crime.

       AID

       “Aid” means to help, assist or strengthen.

       ABET

       “Abet” means to encourage, counsel, incite or assist.

       If you find beyond a reasonable doubt that Ronald L. Haller
       knowingly aided, helped, assisted or encouraged another in the
       commission of Aggravated Burglary in Count 1, he is regarded as if

                                         -23-
Case No. 1-11-34


       he was the principal offender and is just as guilty as if he personally
       performed every act constituting Aggravated Burglary.

       NOTE: This instruction also applies to Counts 2, 3, 4, 5, 6, 8, 9, 10,
       11, 12, 13 and 14, in that the defendant is alleged to be in complicity
       with another in committing the specific offense.

       Likewise, in the Gun Specification, the “Complicity” definition
       applies as to not only Count 1, but Counts 2, 3, 4, 5, 6, 8, 9, and 10.

       Each count and where the Gun Specification applies are to be
       considered separately. (Docket No. 119).

In addition to the foregoing instruction, the instructions for Counts I through XIV

each stated that in order to find Haller guilty of complicity for the given offense,

the jury must find beyond a reasonable doubt that Haller acted with the kind of

culpability required for the commission of the given offenses, by aiding or

abetting another in committing the given offense.

       {¶45} Haller contends that the complicity instruction was flawed in four

respects: (1) the phrase “one does one first” rendered the instruction meaningless

and nonsensical; (2) the instruction did not contain the caveat that “mere

association with one who perpetrates an unlawful act does not render a person a

participant in the crime so long as his acts are innocent”; (3) the instruction did not

properly reflect the requirement that one must act with the kind of culpability

required for the commission of an offense to be guilty of complicity; and, (4) that

it was error to not instruct the jury that an accessory after the fact cannot be guilty

of complicity. We will address each argument in turn.


                                         -24-
Case No. 1-11-34


       {¶46} First, we are not persuaded by Haller’s argument that the phrase “one

does one first” rendered the instruction meaningless and nonsensical. “Reversible

error ordinarily cannot be predicated upon one paragraph, one sentence or one

phrase of the general charge.” (Emphasis added.) State v. Porter, 14 Ohio St.2d

10, 13 (1968). This is so because the alleged error must be viewed in the context

of the overall charge. Price, 60 Ohio St.2d at 141. Here, the phrase highlighted

by Haller is missing the word “act” or “part,” a fact the State concedes. See State

v. Bridge, 3d Dist. No. 1-06-30, 2007-Ohio-1764, ¶ 15. Certainly the instruction

should have read “when two or more persons have a common purpose to commit a

crime, and one does one part [or act] first and a second performs another, those

acting together are equally guilty of the crime.” Despite this omission, when

viewing the complicity instruction as a whole and in the context of the overall

charge, we find that this omission does not render the instruction meaningless or

nonsensical.

       {¶47} Next, we are not persuaded by Haller’s argument that it was

necessary to include the admonition that “mere association with one who

perpetrates an unlawful act does not render a person a participant in the crime so

long as his acts are innocent.” “In a criminal case, if requested special instructions

to the jury are correct, pertinent and timely presented, they must be included, at

least in substance, in the general charge.” Cincinnati v. Epperson, 20 Ohio St.2d

59 (1969), paragraph one of the syllabus, overruled in part on other grounds, State

                                        -25-
Case No. 1-11-34


v. Carter, 72 Ohio St.3d 545 (1995). While the foregoing admonition is an

accurate statement of law and is pertinent, we find nothing in the record to confirm

that Haller requested this instruction be given by the trial court.

        {¶48} Additionally, Haller does not cite any authority requiring that such an

admonition be expressly provided to the jury where the defendant is charged with

complicity. Reviewing the charge in its totality, we note that the complicity

instruction required a finding that Haller associated with Woolwine, the principal

offender, with a common purpose of committing the given offense. Clearly, the

complicity instruction, as a whole, requires that the defendant engage in some

active participation in the given offense before he can be found guilty of

complicity. Accordingly, we find that the trial court did not err by omitting the

foregoing admonition. See State v. Stubblefield, 8th Dist. No. 46436 (Sept. 29,

1983).6

        {¶49} Next, we are not persuaded by Haller’s argument that the complicity

instruction did not properly reflect the requirement that one must act with the kind

of culpability required for the commission of an offense to be guilty of complicity.

While the instruction defining complicity did not contain the requirement that one

must act with the kind of culpability required for the commission of an offense to

be guilty of complicity, review of the record reveals that the requirement was

included in Counts I through XIV. In particular, each of the instructions for
6
 We do note that the trial court properly gave the required instruction on the testimony of an accomplice.
R.C. 2923.03(D).

                                                  -26-
Case No. 1-11-34


Counts I through XIV indicated, in relevant part, that to find Haller guilty of the

charged offense the jury had to find beyond a reasonable doubt that Haller acted

with the kind of culpability required for the commission of the charged offense, by

aiding or abetting another in committing the charged offense. Given the inclusion

of these instructions for Counts I through XIV, we find Haller’s argument to be

without merit.

       {¶50} Finally, we are not persuaded by Haller’s argument that the trial

court erred when it did not include an instruction that an accessory after the fact

cannot be guilty of complicity. The Ohio Supreme Court has held that, if the trial

court properly instructs the jury on Ohio law pertaining to complicity, it is under

no obligation to also give an instruction on accessories after-the-fact. State v.

Carver, 30 Ohio St.2d 280, 290 (1972); State v. Boddie, 3d Dist. No. 1-2000-72

(Sept. 6, 2001). Based on our foregoing discussion and having considered the

complicity instruction in the context of the overall charge, we find that the trial

court properly instructed the jury on complicity, and therefore was under no

obligation to give an instruction on accessories after-the-fact.

       {¶51} Given the foregoing, we find that the errors alleged by Haller in

relation to the complicity instruction do not rise to the level of plain error.

       {¶52} Furthermore, we find that Haller was not denied effective assistance

of counsel. An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

                                          -27-
Case No. 1-11-34


and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of syllabus.           To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.       Id. at paragraph three of syllabus.    “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.    State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103 (1997).

         {¶53} Haller maintains that his counsel was ineffective because he failed to

object to the complicity instruction given by the trial court. Having found that the

trial court properly instructed the jury on complicity, we find that Haller was not

denied effective assistance of counsel.

         {¶54} Accordingly, we overrule Haller’s fifth and sixth assignments of

error.

                              Assignment of Error No. I

         {¶55} In his first assignment of error, Haller contends that his convictions

for Counts XI and XIII should be reduced from a second degree felony to a fourth




                                          -28-
Case No. 1-11-34


degree felony because the verdict forms for those counts do not comply with R.C.

2945.75(A)(2).7 We agree.

        R.C. 2945.75(A)(2) provides, in relevant part, as follows:

        (A) When the presence of one or more additional elements makes
        an offense one of more serious degree:

        ***

        (2) A guilty verdict shall state either the degree of the offense of
        which the offender is found guilty, or that such additional element or
        elements are present. Otherwise, a guilty verdict constitutes a finding
        of guilty of the least degree of the offense charged.

        {¶56} In State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, the Ohio

Supreme Court addressed R.C 2945.75(A)(2) and the language required in a

verdict form to support a conviction for the greater degree of an offense. In

Pelfrey, the defendant was charged with tampering with records in violation of

R.C. 2913.42, with an enhanced charge to a third degree felony for tampering with

government records pursuant to R.C. 2913.42(B)(4). The defendant was

subsequently convicted and sentenced on the third degree felony conviction. On

appeal, he argued that the jury verdict form and resulting judgment entry of

conviction were insufficient to support his conviction for a felony of the third

degree, because the verdict form and judgment entry did not state the degree of the

offense or contain a finding that government records were involved. Accordingly,


7
 Although Haller’s first assignment of error challenges the verdict form for Count XII, we note that based
on his arguments he is, in fact, challenging the verdict form for Count XIII. Consequently, we will address
his argument as it pertains to Counts XI and XIII.

                                                  -29-
Case No. 1-11-34


he argued that, pursuant to R.C. 2945.75(A)(2), his conviction should only be for

the lowest degree of the offense, a first degree misdemeanor. The appellate court

agreed and remanded the matter for the trial court to enter a judgment convicting

the defendant of a first degree misdemeanor.

       {¶57} In affirming the appellate court’s decision, the court stated, in

relevant part:

       In this case, Pelfrey’s offense of tampering with records would have
       constituted a misdemeanor under R.C. 2913.42(B)(2)(a) but for the
       additional element that the records at issue were government
       records, a circumstance that elevates the crime to a third-degree
       felony under R.C. 2913.42(B)(4). However, neither the verdict form
       nor the trial court’s verdict entry mentions the degree of Pelfrey’s
       offense; nor do they mention that the records involved were
       government records. The statute provides explicitly what must be
       done by the courts in this situation: the “guilty verdict constitutes a
       finding of guilty of the least degree of the offense charged.” R.C.
       2945.75(A)(2).

       Because the language of R.C. 2945.75(A)(2) is clear, this court will
       not excuse the failure to comply with the statute or uphold Pelfrey’s
       conviction based on additional circumstances such as those present
       in this case. The express requirement of the statute cannot be
       fulfilled by demonstrating additional circumstances, such as that the
       verdict incorporates the language of the indictment, or by presenting
       evidence to show the presence of the aggravated element at trial or
       the incorporation of the indictment into the verdict form, or by
       showing that the defendant failed to raise the issue of the inadequacy
       of the verdict form. We hold that pursuant to the clear language of
       R.C. 2945.75, a verdict form signed by a jury must include either the
       degree of the offense of which the defendant is convicted or a
       statement that an aggravating element has been found to justify
       convicting a defendant of a greater degree of a criminal offense.
       Pelfrey at ¶ 13-14.



                                        -30-
Case No. 1-11-34


       {¶58} Shortly after Pelfrey was decided, this court held that a third degree

felony conviction for intimidation of a crime victim or witness in violation of R.C.

2921.04(B) must be remanded for a first degree misdemeanor conviction under

R.C. 2921.04(A). Our basis for this holding was that the jury verdict form only

found the defendant guilty of intimidation “in manner and form as he stands

charged in the indictment,” and failed to include the degree of the offense, the

statutory section of the offense, or any finding of the aggravating factor elevating

the offense to a third degree felony. State v. Sessler, 3d Dist. No. 3-06-23, 2007-

Ohio-4931. In Sessler, the requirements of R.C. 2945.75 were not met and the

jury verdict form did not contain the degree of the offense or a finding of the

aggravating factor. Based on this and our strict interpretation of Pelfrey, we found

that, even though “Sessler was properly charged, the jury instructions specified the

correct offense and degree, and the verdict form incorporated by reference the

indictment[.]” the third degree felony conviction could not stand. Id. at ¶ 13.

Subsequently, the Ohio Supreme Court accepted Sessler for review, and affirmed

our implicit finding that Pelfrey was applicable to charging statutes containing

separate sub-parts with distinct offense levels. State v. Sessler, 119 Ohio St.3d 9,

2008-Ohio-3180.

       {¶59} Here, Haller was charged with complicity to commit burglary under

R.C. 2911.12(A)(2) and R.C. 2923.03(A)(2). The burglary statute provides, in

relevant part:

                                       -31-
Case No. 1-11-34


           (A) No person, by force, stealth, or deception, shall do any of the
           following:

           ***

           (2) Trespass in an occupied structure or in a separately secured or
           separately occupied portion of an occupied structure that is a
           permanent or temporary habitation of any person when any person
           other than an accomplice of the offender is present or likely to be
           present, with purpose to commit in the habitation any criminal
           offense;

           ***

           (4) Trespass in a permanent or temporary habitation of any person
           when any person other than an accomplice of the offender is present
           or likely to be present.

           ***

           (C) Whoever violates this section is guilty of burglary. A violation
           of division (A)(1) or (2) of this section is a felony of the second
           degree. A violation of division (A)(3) of this section is a felony of
           the third degree. A violation of division (A)(4) of this section is a
           felony of the fourth degree. R.C. 2911.12.8

           {¶60} Although Haller was indicted under section (A)(2) of R.C. 2911.12

and the jury was instructed under section (A)(2) of the same statute, we find, and

the State concedes, that the verdict forms for Counts XI and XIII are insufficient

to convict Haller of second degree felonies. See Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256, at ¶ 14. The verdict forms for Counts XI and XIII are identical

and read as follows:




8
    This version of R.C. 2911.12 was in existence at the time of Haller’s indictment and trial.

                                                      -32-
Case No. 1-11-34


        We, the jury, being duly impaneled and sworn, find the Defendant,
        Ronald L. Haller guilty of Complicity to Burglary. (Docket No. 114,
        116).

        {¶61} Clearly, the verdict form contains neither the degree of the offense

nor the aggravating elements of R.C. 2911.12(A)(2) as required by R.C.

2945.75(A)(2).         Consequently, the verdict forms for Counts XI and XIII are

insufficient to convict Haller of second degree felonies.9 Thus, we must remand

this matter to the trial court to enter a judgment convicting Haller of complicity to

commit burglary as a fourth degree felony, pursuant to R.C. 2911.12(A)(4), and to

impose sentences accordingly.

        {¶62} Accordingly, we sustain Haller’s first assignment of error.

                                   Assignment of Error No. III

        {¶63} In his third assignment of error, Haller contends that R.C. 2941.25 is

unconstitutionally vague. We disagree.

        {¶64} After careful review of the record, we note that Haller did not

challenge the constitutionality of R.C. 2941.25 before the trial court. This is

significant because “[f]ailure to raise at the trial court level the issue of the

constitutionality of a statute or its application, which issue is apparent at the time

of trial, constitutes a waiver of such issue and a deviation from this state’s orderly


9
  We note that this case was submitted to this court in March 2012. Since that time, the Ohio Supreme
Court has revisited the application of R.C. 2945.75(A)(2) in State v. Eafford, 132 Ohio St.3d 159, 2012-
Ohio-2224. Though the parties did not have the opportunity to brief the effect of Eafford on Haller’s first
assignment of error, we have considered Eafford and still find that the verdict forms for Counts XI and XIII
are insufficient to convict Haller of second degree felonies.

                                                   -33-
Case No. 1-11-34


procedure, and therefore need not be heard for the first time on appeal.” State v.

Awan, 22 Ohio St.3d 120 (1986), syllabus. It is, however, within the reviewing

court’s discretion to address the constitutional argument under a plain error

analysis or where the rights and interests involved may warrant review. In re

M.D., 38 Ohio St.3d 149 (1988), syllabus. Upon consideration, we decline to

exercise our discretion to review Haller’s constitutional challenge of R.C. 2941.25.

       {¶65} Accordingly, we overrule Haller’s third assignment of error.

                         Assignments of Error Nos. II & IV

       {¶66} In his second and fourth assignments of error, Haller contends that

the trial court erred when it did not merge Counts XI, XII, and XV together and

Counts XIII and XIV together, because the offenses are allied offenses of similar

import.    Haller also contends that the current process by which offenses are

determined to be allied violates his right to notice, his right to a trial, and the

requirement that the state prove his guilt beyond a reasonable doubt. We agree in

part and disagree in part.

       {¶67} Ohio’s statute concerning multiple counts, R.C. 2941.25, provides as

follows:

       (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

                                       -34-
Case No. 1-11-34


       more offenses of the same or similar kind committed separately or
       with a separate animus as to each, the indictment or information may
       contain counts for all such offenses, and the defendant may be
       convicted of all of them.

       {¶68} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court clarified the application of R.C. 2941.25. Specifically, the court

overruled State v. Rance, 85 Ohio St.3d 632 (1999), “to the extent that it calls for a

comparison of statutory elements solely in the abstract under R.C. 2941.25. [Now

w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” Johnson at ¶ 44.

       {¶69} Johnson describes the test for determining whether offenses are

allied as follows:

       In determining whether offenses are allied offenses of similar import
       under R.C. 2941.25(A), the [first] question is whether it is possible
       to commit one offense and commit the other offense with the same
       conduct, not whether it is possible to commit one without
       committing the other. * * * If the offenses correspond to such a
       degree that the conduct of the defendant constituting commission of
       one offense constitutes commission of the other, then the offenses
       are of similar import.

       If the multiple offenses can be committed by the same conduct, then
       the court must determine whether the offenses were committed by
       the same conduct, i.e., ‘a single act committed with a single state of
       mind.’

       If the answer to both questions is yes, then the offenses are allied
       offenses of similar import and will be merged. (Emphasis sic;
       Citations omitted.) Johnson at ¶ 48-50.


                                        -35-
Case No. 1-11-34


                            Counts XI, XII, and XV (Ottawa Burglary)

           {¶70} Haller contends that Counts XI, XII, and XV (complicity to burglary,

complicity to grand theft, and receiving stolen property, respectively) are allied

offenses of similar import. In support, Haller advances two alternative arguments,

which we will address in turn.

           {¶71} Before we address Haller’s arguments, we note that we will consider

whether burglary and grand theft are allied offenses, as opposed to the offenses for

which Haller was convicted, complicity to commit burglary and complicity to

commit grand theft.10 Pursuant to R.C. 2923.03(F), “[w]hoever violates [R.C.

2923.03] is guilty of complicity in the commission of an offense, and shall be

prosecuted and punished as if he were a principal offender.” Since an accomplice

is punished as if he or she were a principal offender, a court, when determining the

issue of merger, must necessarily consider the offenses the accomplice was found

to have aided and/or abetted. Here, Haller aided and/or abetted Woolwine, the

principal offender, in committing burglary and grand theft. Consequently, we will

consider whether burglary and grand theft are allied offenses. Bearing this in

mind, we turn our attention to Haller’s arguments.

           {¶72} First, Haller argues that based on the definition of trespass, a

burglary is completed when the person vacates the premises in which they

trespassed.         Consequently, Haller maintains that any crime that is committed


10
     Based on the parties’ arguments on appeal, they agree with the scope of our analysis.

                                                      -36-
Case No. 1-11-34


during the course of the burglary should merge with the burglary offense. We

disagree.

       {¶73} For purposes of burglary, trespass is defined as a violation of the

statute defining criminal trespassing. R.C. 2911.10. That statute, in relevant part,

provides that “[n]o person, without the privilege to do so, shall * * * [k]nowingly

enter or remain on the land or premises of another.” R.C. 2911.21(A)(1). Haller

contends that the phrase “remain on the land or premises” means that as long as

the trespasser remains on the land or premises he or she has not completed the

trespass, and therefore has not completed the burglary.

       {¶74} This is a novel yet incorrect interpretation of the statute defining

trespass.    First, Haller misinterprets the meaning of “remain on the land or

premises.”     Contrary to Haller’s interpretation of “remain on the land or

premises,” the term “remain” refers to those situations where an individual, who

initially has a privilege to enter onto another’s land or premises, knowingly

remains on the land or premises after the privilege has lapsed or has otherwise

been revoked. See City of Columbus v. Peoples, 10th Dist. No. 05AP-247, 2006-

Ohio-1718 (though defendant initially had a privilege to enter hospital’s premises,

he was found guilty of criminal trespass when he remained on the hospital’s

premises after the privilege to remain thereon was revoked by the hospital’s

employees). Second, and more importantly, Haller ignores the existence of the

word “or” between “enter” and “remain.” The presence of “or” is significant as it

                                       -37-
Case No. 1-11-34


indicates that a trespass can be completed in one of two ways; by entering or

remaining, without privilege to do so, on another’s land or premises. Accordingly,

the trespass element of burglary is satisfied when either the perpetrator, without a

privilege to do so, knowingly enters the victim’s premises, which occurred here,

or when the perpetrator, though initially having a privilege to enter the premises,

knowingly remains on the premises after that privilege has lapsed or been revoked.

See, e.g., State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 68 (burglary

was complete as soon as defendant entered the apartment by deception with the

intent to commit a theft offense). Given the foregoing, we find Haller’s first

argument to be without merit.

       {¶75} Notwithstanding his foregoing argument, Haller also cites several

cases in which other courts of appeal, applying Johnson, have determined that

burglary and theft are allied offenses of similar import. State v. Blackburn, 4th

Dist. No. 10CA46, 2011-Ohio-4624 (finding counts of burglary, theft, and

receiving stolen property were allied offenses because they were committed with

single act); State v. James, 5th Dist. No. 11 CAA 05 0045, 2012-Ohio-966

(finding counts of burglary and theft were allied offenses because they were

committed through the same course of conduct and single state of mind). Having

considered the holdings in the cases cited by Haller, we find the cases to be

distinguishable from the instant case.



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       {¶76} Without addressing the first step under Johnson, we find, under the

facts of this case, that the burglary and grand theft offenses associated with Counts

XI and XII, respectively, were committed by two separate acts.              Woolwine

testified that after the residents left the Ottawa Road residence he broke in and

proceeded to ransack the residence taking guns, archery equipment, knives, an

Xbox, and several video games and movies. According to Woolwine’s testimony,

the burglary was complete upon entering the residence. At this time, none of

Woolwine’s actions satisfied any of the elements of grand theft. It was not until

Woolwine exerted control over Lhamon’s guns, an act which undoubtedly

occurred apart from the unlawful entry into the residence, that Woolwine

committed grand theft. See State v. Crosby, 12th Dist. Nos. CA2010-10-081,

CA2011-02-013, 2011-Ohio-4907 (finding counts of burglary and grand theft

were not allied offenses because defendant committed burglary with a different act

and a separate animus from grand theft); see also State v. Sludder, 3d Dist. No. 1-

11-69, 2012-Ohio-4014, ¶ 14 (Breaking and entering and burglary are not allied

offenses), citing State v. Brewer, 3d Dist. No. 16-11-13, 2012-Ohio-3899, ¶ 45

(same). Given the foregoing, we find that Counts XI and XII were not committed

with the same conduct, i.e., a single act, and therefore are not allied offenses.

       {¶77} As for Count XV, receiving stolen property, we find, and the State

concedes, that Count XV merges with Count XII, grand theft. First, we find that it

is possible to commit theft and receiving stolen property with the same conduct.

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Second, upon review of the record, it appears that Counts XII and XV both relate

to Woolwine’s act of stealing guns from the Ottawa Road residence. Given the

foregoing, we find that Counts XII and XV are allied offenses.

       {¶78} Accordingly, we find that the trial court did not err when it

determined that Counts XI and XII were not allied offenses, but did err when it

determined that Counts XII and XV were not allied offenses.

                     Counts XIII and XIV (Highland Burglary)

       {¶79} Haller contends that Counts XIII and XIV (complicity to commit

burglary, complicity to commit grand theft) are allied offenses of similar import.

We disagree.

       {¶80} Again, without addressing the first step under Johnson, we find,

under the facts of this case, that the burglary and grand theft offenses associated

with Counts XIII and XIV, respectively, were committed by two separate acts, and

therefore are not allied offenses.

       {¶81} Accordingly, we find that the trial court did not err when it

determined that Counts XIII and XIV were not allied offenses.

                      Process of Determining Allied Offenses

       {¶82} Finally, Haller contends that the current process by which offenses

are determined to be allied violates his right to notice, his right to a trial, and the

requirement that he be proven guilty beyond a reasonable doubt. Specifically,

Haller contends that the State should be required to provide the defendant notice in

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cases where it intends to argue against the existence of allied offenses; that the fact

finder should determine whether the offenses at issue were committed with the

same conduct and animus; and, that the state must prove beyond a reasonable

doubt that the offenses alleged to be allied were not committed with the same

conduct and animus. As a result of Haller’s contention, he requests that we

remand this matter for a new trial and require the State “to prove separate animus

to a new jury.” Appellant’s Br., p. 15. We disagree.

       {¶83} Initially, we note that Haller cites no authority in support of his

contention. Notwithstanding a lack of supportive authority, we are not persuaded

by Haller’s argument.      The law is clear; the trial court, not the fact finder,

determines whether offenses are allied as this is a question of law, not an issue of

fact. Contrary to Haller’s assertion, we fail to see how this process prejudicially

affects, as he phrases it, his right to notice, his right to a trial, and the requirement

that he be proven guilty beyond a reasonable doubt. As a result, we find Haller’s

contention to be without merit.

       {¶84} Accordingly, we sustain in part and overrule in part Haller’s second

assignment of error, and overrule Haller’s fourth assignment of error.

       {¶85} Having found no error prejudicial to Haller herein, in the particulars

assigned and argued in the third, fourth, fifth, sixth, and seventh assignments of

error, but having found error prejudicial to Haller, in the particulars assigned and

argued in the first and second assignments of error, we affirm in part, and reverse

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in part, the judgment of the trial court, and remand for further proceedings

consistent with this opinion.

                                                 Judgment Affirmed in Part,
                                                      Reversed in Part and
                                                         Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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