[Cite as State v. Teaque, 2018-Ohio-3997.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 106469



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                            TAMARA AYERS TEAQUE
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-17-618115-A

        BEFORE:           McCormack, P.J., E.T. Gallagher, J., and Boyle, J.

        RELEASED AND JOURNALIZED: September 27, 2018
[Cite as State v. Teaque, 2018-Ohio-3997.]
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Ste. 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Carl Mazzone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
[Cite as State v. Teaque, 2018-Ohio-3997.]
TIM McCORMACK, P.J.:

        {¶1}     Defendant-appellant Tamara Ayers Teaque appeals from her sentence on

four counts of receiving stolen property (“RSP”), arguing in six assignments of error that

Teaque’s offenses should have merged for sentencing; she received ineffective assistance

of counsel at sentencing; the imposition of consecutive sentences was contrary to law; the

sentence is not supported by the record; the trial court lacked authority to impose sentence

after pronouncement; and the trial court violated Teaque’s due process when it increased

her sentence.      For the reasons below, we find merit to Teaque’s first assignment of error

and therefore reverse the trial court.

        {¶2} On July 10, 2017, Teaque was charged with four counts of RSP. Counts 1

through 3 of the indictment alleged that Teaque “did receive, retain, or dispose of a

shotgun, [Serial Nos. J204576-32, A828460, and HHRF, respectively], the property of

Lalescia Hicks, knowing or having reasonable cause to believe that the property had been

obtained through commission of a theft offense * * *.” Count 4 varied only in its

identification of a rifle as the property of Lalescia Hicks.     All four counts alleged that

the offense occurred “on or about March 15, 2017.”        Additionally, the bill of particulars

for each count provided that Teaque “did receive, retain, or dispose of” the firearms on

the same date and at the same location.

        {¶3} On September 13, 2017, the court held a plea hearing, where the prosecutor

placed the following on the record:
      The victim in this case is * * * Lalescia Hicks. Miss Hicks had several
      guns that she kept in her home. At some point the guns were stolen from
      her home, along with about a thousand dollars worth of ammunition.

      On the day alleged in the indictment, on or about March 15th, it is believed

      that the Defendant did come and offer to bring the guns back to Miss Hicks.

        These were acquaintances for approximately 18 years.     The story that the

      Defendant gave the police is that she was driving down the street and saw a

      guy waving one of the rifles on the street and that she recognized that rifle

      as one belonging to Miss Hicks. So she purchased those guns back for

      $150 and then tried to bring them back to the * * * victim, at which point

      the victim did contact the police to say that she had gotten these guns back

      from, in fact, the Defendant here, and she was charged with the receiving

      stolen property counts.

Teaque entered a no contest plea to all counts as charged, and the court found her guilty,

ordered a presentence investigation report (“PSI”), and scheduled the matter for

sentencing.

      {¶4} At sentencing, Teaque explained to the court how she came to possess

Hicks’s guns:

      You know, I saw the victim’s daughter and she was crying to me and for
      years I tried to help her with her addiction. She showed me she had her
      mother’s guns, you know, and she swore to me she was going to treatment
      the next day.
      And that’s where I made two mistakes. I got the shotguns and took them
      back to her mother. But when I took them back to her mother, I wasn’t
      honest with her where I got the guns from.

      And I want to apologize for not telling you that I got the guns from your
      daughter, whether you believe it or not, you know.

      And then I lied to her and I told her that I got the guns from a guy with a
      Squirt shirt, and then I suggested that I paid $150 for them, and for that I’m
      very sorry. But I did not have anything to do with this crime. I just took
      them back to her and lied. And I apologize also for lying to the police.

      {¶5} The court then heard from defense counsel, the prosecutor, and the victim.

The court engaged the victim in a discussion regarding the victim’s understanding of

what occurred. Reading from the PSI, the court stated:

      According to the defendant, she and her oldest son were waiting on his

      father’s street.   They saw the victim’s daughter in the back seat of a car.

      She called the defendant over to the car.     The defendant stated [that] the

      daughter was filthy and she was high. * * * When the defendant looked into

      the car, she saw the victim’s old rifles.   The defendant reportedly told the

      victim’s daughter that she was taking the rifles back to the victim. * * * She

      then placed the rifles in her trunk and called the victim.

      {¶6} After further speaking with the victim, the court imposed a sentence of 18

months imprisonment, on each count, to be served concurrently.        Upon receiving her

sentence, Teaque shouted, “You bitch!”     The record is not clear to whom the comment

was directed.   After the outburst, however, the court directed the deputies to “bring her
back,” and it promptly changed Teaque’s sentence to be consecutively served, which

ultimately resulted in a prison term of 72 months.

       {¶7} In her first assignment of error, Teaque contends that the trial court erred in

failing to merge her convictions.        Teaque argues that her convictions for the

simultaneous receipt of four stolen firearms belonging to the same victim were allied

offenses of similar import.    She did not, however, raise the issue of merger at her

sentencing.

       {¶8} R.C. 2941.25, the allied offenses statute, codifies the constitutional right

against double jeopardy, thus prohibiting multiple punishments for the same offense.

State v. Robinson, 8th Dist. Cuyahoga No. 99917, 2014-Ohio-2973, ¶ 53, citing State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute

provides when multiple punishments can and cannot be imposed:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

R.C. 2941.25; State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12.

       {¶9} In Ruff, the Ohio Supreme Court explained that when a defendant’s conduct

constitutes a single offense, the defendant may only be convicted and sentenced for that
offense.   Id. at ¶ 24.   However, when the conduct “supports more than one offense, the

court must determine whether the offenses merge or whether the defendant may be

convicted of separate offenses.” Id.

       {¶10} To make this determination, the trial court must necessarily consider the

defendant’s conduct, specifically considering “how were the offenses committed.” Id. at

¶ 25. In making this determination, the court must evaluate the defendant’s conduct, his

or her animus, and the import of the offenses:

       As a practical matter, when determining whether offenses are allied

       offenses of similar import within the meaning of R.C. 2941.25, courts must

       ask three questions when defendant’s conduct supports multiple offenses:

       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus

       or motivation?

Id. at ¶ 31.   If the answer is “yes” to any of the above, the defendant may be convicted of

all of the offenses separately. Id.

       {¶11} The court in Ruff continued to explain that

       [w]hen a defendant’s conduct victimizes more than one person, the harm for
       each person is separate and distinct, and therefore, the defendant can be
       convicted of multiple counts. Also, a defendant’s conduct that constitutes
       two or more offenses against a single victim can support multiple
       convictions if the harm that results from each offense is separate and
       identifiable from the harm of the other offense.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26; State v. Black,

2016-Ohio-383, 58 N.E.3d 561, ¶ 12 (8th Dist.).

       {¶12} Where a defendant fails to raise an objection regarding the nonmerger of

alleged allied offenses of similar import, any error associated with the failure to merge is

waived, with the exception of plain error.        State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860.       To demonstrate plain error regarding the failure to

merge alleged allied offenses, “an accused has the burden to demonstrate a reasonable

probability that the convictions are for allied offenses of similar import committed with

the same conduct and without a separate animus.” Id. at ¶ 3. Absent that showing,

“the accused cannot demonstrate that the trial court’s failure to inquire whether the

convictions merge for purposes of sentencing was plain error.” Id.
[Cite as State v. Teaque, 2018-Ohio-3997.]
        {¶13} Here, Teaque pleaded no contest to four counts of receiving stolen property

in violation of R.C. 2913.51(A), which provides that “[n]o person shall receive, retain, or

dispose of property of another knowing or having reasonable cause to believe that the

property has been obtained through commission of a theft offense.”               The items Teaque

“received, retained, or disposed of” are all firearms — identified in the indictment as

three shotguns and one rifle — and they belonged to the same victim. Regardless of the

version of events presented, the record demonstrates that the four firearms were obtained

simultaneously in a single transaction or event and they were delivered to the victim at the

same time and at the same location.             Nothing in the record indicates Teaque acquired the

firearms in separate transactions.           And the record contains repeated references to “guns”

acquired, making no effort to separately identify or distinguish the firearms.              The harm

suffered by the victim in one count is not separate, identifiable from the harm in the

remaining counts.         Thus, the offenses were committed with the same conduct, the

offenses had a similar import, and Teaque acted with a single animus or purpose.

        {¶14} Accordingly, Teaque’s convictions for “receiv[ing], retain[ing], or

dispos[ing] of” multiple firearms simultaneously, where there is no separate, identifiable

harm, should have merged for sentencing purposes.                We therefore find the trial court

erred in sentencing Teaque separately for each RSP conviction.                      Teaque’s first

assignment of error is sustained.            The remaining assignments of error are moot.

        {¶15} Judgment reversed and remanded for resentencing, with instructions for the

state to elect upon which count to proceed in sentencing.
       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


__________________________________________
TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR
