[Cite as State v. High, 2017-Ohio-1242.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-

CHRISTOPHER HIGH                                   Case No. 2016CA00095


        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2016CR0090


JUDGMENT:                                      Affirmed, in part; Vacated, in part;
                                               and Remanded

DATE OF JUDGMENT ENTRY:                         March 31, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               AARON KOVALCHIK
Prosecuting Attorney,                          116 Cleveland Ave. N.W.
Stark County, Ohio                             808 Courtyard Centre
                                               Canton, Ohio 44702
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00095                                                       2

Hoffman, J.

       {¶1}      Defendant-appellant Christopher High appeals his convictions and

sentence entered by the Stark County Court of Common Pleas on one count of

aggravated robbery, one count of aggravated burglary, and one count of felonious

assault. Each count carried an attendant firearm specification. Plaintiff-appellee is the

state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}      On December 9, 2012, Rockford Estep was at his residence located at 127

12th Street N.W., Massillon, Ohio. Estep maintains he looked outside his window and

noticed a dark colored van. He then observed Appellant at his window with a bag of

marijuana. Estep recognized Appellant from previous marijuana purchases, and invited

him into his house. Estep observed an all black Ford van outside, which van he had seen

Appellant drive on other occasions.

       {¶3}      Upon entering the home, Appellant requested Estep let his dogs outside.

When Estep turned to do so, he saw two masked men running into his home.1 Appellant

then hit Estep with a firearm and demanded money. Estep estimated he was hit with the

gun about ten times, and got “hit pretty good with it.” Estep gave Appellant $700.00 he

had in his pocket.

       {¶4}      The other two men continued to rummage and steal items from Estep’s

home, during which time Appellant held a gun to the back of Estep’s head. A home alarm

was triggered. Appellant told Estep to turn off the alarm. While Estep went to turn off the




1
 Estep testified at trial Appellant did not have a mask on during the altercation, but the
other two men wore masks.
Stark County, Case No. 2016CA00095                                                         3


alarm, he ran out the back door, jumping a fence, sustaining injury. While running, Estep

shouted to “call 911.”

       {¶5}   A neighbor heard Estep shouting to call 911, and further observed the dark

colored van. He wrote down the van’s license plate number, and called 911.

   {¶6}       Jim Nixon of the Canton Police Department responded to the call, observing

the van pulling out of a drive-thru. He verified the license plate number of the van, and

initiated a stop. The van did not pull over, and entered the jurisdiction of the North Canton

Police Department.

       {¶7}   Sergeant Ronald Mizner of the North Canton Police Department located the

abandoned van, impounding it and then conducting an inventory search of the same. The

owner of the van was identified as Pasha Smalls. Inside the van an invoice for repairs

was found with both Smalls and Appellant’s name as payors.

       {¶8}   Sgt. Mizner then interviewed Estep at the hospital, where Estep related he

knew Appellant as “Big C” or “Chris” as he purchased marijuana from him in the past.

Estep described Appellant’s physical appearance.

       {¶9}   The Stark County Grand Jury indicted Appellant on one count of aggravated

robbery, in violation of R.C. 2911.01(A)(1) and/or (3), with a firearm specification, in

violation of R.C. 2941.145; one count of aggravated burglary, in violation of R.C.

2911.11(A)(1) and/or (2), with a firearm specification, in violation of R.C. 2941.145; and

one count of felonious assault, in violation of R.C. 2903.11(A)(1), with a firearm

specification, in violation of R.C. 2941.145.

       {¶10} The matter proceeded to a jury trial on March 29, 2016. The jury found

Appellant guilty on all counts. The trial court sentenced Appellant as follows:
Stark County, Case No. 2016CA00095                                                         4


       {¶11} Count One, Aggravated Robbery: Six years

       {¶12} Count Two, Aggravated Burglary: Six years, concurrent with the sentence

imposed on Count One.

       {¶13} Count Three, Felonious Assault: Four years, consecutive to the sentence

imposed on Counts One and Two.

       {¶14} Each gun specification carried a three year term of incarceration. The trial

court merged the sentences on all three firearm specifications, imposing the three years

consecutive to the sentences already imposed on the other three counts.

       {¶15} The trial court’s total sentence imposed amounted to thirteen years.

       {¶16} Appellant appeals, assigning as error,



              I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

       WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

              II. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO

       SERVE CONSECUTIVE SENTNECES [SIC].

              III. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE

       APPELLANT’S CONVICTIONS AS ALLIED OFFENSES.



                                                 I.

       {¶17} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
Stark County, Case No. 2016CA00095                                                        5


created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶18} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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 the crime

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

paragraph two of the syllabus (1991).

       {¶19} Appellant was convicted of aggravated robbery, in violation of R.C.

2911.01(A)(1) and/or (3), which reads,



              (A) No person, in attempting or committing a theft offense, as defined

       in section 2913.01 of the Revised Code, or in fleeing immediately after the

       attempt or offense, shall do any of the following:

              (1) Have a deadly weapon on or about the offender's person or under

       the offender's control and either display the weapon, brandish it, indicate

       that the offender possesses it, or use it;

              ***

              (3) Inflict, or attempt to inflict, serious physical harm on another.



       {¶20} Appellant was further convicted of aggravated burglary, in violation of R.C.

2911.11(A)(1) and/or (2), which reads,
Stark County, Case No. 2016CA00095                                                      6


             (A) No person, by force, stealth, or deception, shall trespass in an

      occupied structure or in a separately secured or separately occupied portion

      of an occupied structure, when another person other than an accomplice of

      the offender is present, with purpose to commit in the structure or in the

      separately secured or separately occupied portion of the structure any

      criminal offense, if any of the following apply:

             (1) The offender inflicts, or attempts or threatens to inflict physical

      harm on another;

             (2) The offender has a deadly weapon or dangerous ordnance on or

      about the offender's person or under the offender's control.



      {¶21} Finally, Appellant was convicted of felonious assault, in violation of R.C.

2903.11(A)(1) and/or (2),



             (A) No person shall knowingly do either of the following:

             (1) Cause serious physical harm to another or to another's unborn;

             (2) Cause or attempt to cause physical harm to another or to

      another's unborn by means of a deadly weapon or dangerous ordnance.



      {¶22} Appellant approached Estep’s residence presenting himself at the window,

indicating he had a bag of marijuana. Estep had previously purchased marijuana from

Appellant. Estep answered the door, Appellant entered the residence, and asked Estep

to leave his dogs outside. Estep noticed a blacked out, dark color Ford van outside, which
Stark County, Case No. 2016CA00095                                                             7


he had previously observed Appellant driving. Estep observed two masked men in his

home, at which point Appellant struck him with a firearm. The men ransacked the home

and Appellant demanded money from Estep at gun point. Estep gave Appellant $700.00

he had on his person. When the home alarm was activated, Appellant told Estep to turn

it off, at which point Estep utilized the opportunity to escape. A neighbor called law

enforcement and provided the license plate number of the vehicle. Later, a receipt was

found in the abandoned van with Appellant’s name as the payor. Estep then provided a

physical description of Appellant to law enforcement.

       {¶23} Viewing the evidence in a light most favorable to the prosecution, we find

the record demonstrates sufficient evidence for a reasonable jury to find Appellant

committed the offenses for which he was convicted. The weight of the evidence and the

credibility of the witnesses are left to the discretion of the trier of fact. We find Appellant’s

convictions are not against the manifest weight of nor based on insufficient evidence.

       {¶24} The first assignment of error is overruled.

                                                   II.

       {¶25} In the second assignment of error, Appellant argues the trial court erred in

imposing consecutive sentences. Specifically, Appellant asserts the trial court failed to

make the findings required by R.C. 2929.14(C) prior to imposing consecutive sentences.

       {¶26} In State v. Marcum, 146 Ohio St.3d 516, 59 N.E.3d 1231, 2016-Ohio-1002,

the Ohio Supreme Court held an appellate court must review a felony sentence using the

standard set forth in R.C. 2953.08, and will no longer apply the abuse of discretion

standard set forth in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912.
Stark County, Case No. 2016CA00095                                                      8


       {¶27} A trial court may overcome the statutory presumption in favor of concurrent

sentences for most felony offenses by making the statutory, enumerated findings set forth

in RC. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3349. The findings

must be set forth in both the judgment entry of sentence and at the sentencing hearing.

Id. The trial court is not obligated to state reasons for its findings. Id.

       {¶28} R.C. 2929.14(C) reads,



              (4) If multiple prison terms are imposed on an offender for convictions

       of multiple offenses, the court may require the offender to serve the prison

       terms consecutively if the court finds that the consecutive service is

       necessary to protect the public from future crime or to punish the offender

       and that consecutive sentences are not disproportionate to the seriousness

       of the offender's conduct and to the danger the offender poses to the public,

       and if the court also finds any of the following:

              (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of

       the multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender's conduct.
Stark County, Case No. 2016CA00095                                                       9


            (c) The offender's history of criminal conduct demonstrates that

     consecutive sentences are necessary to protect the public from future crime

     by the offender.



     {¶29} At the sentencing hearing the trial court stated,



            * * * To, to violate and to intrude into the sanctity of one’s home is, is

     a cardinal offense. To compound that to have a firearm on your person

     when you did that and to brutally, brutally assault another individual as was

     evidenced by the photographs sufficient of an assault that you caused an

     individual to panic, run out of their home result in a broken arm and a

     puncture wound to their leg is really troubling to the Court.

            The fact that you’ve got prior involvement with the law, other judges

     have seen fit to send you to an institution on two separate occasions, and

     yet you find yourself still wheeling and dealing in marijuana, by your own

     testimony someone else who were [sic] doing business with would have

     been using the van that you were using, by your own testimony, and that,

     that – so you’re hanging out with these people. I don’t find your testimony

     to be credible nor did the jury, and as such it’s going to be the order of this

     Court as follows: * * *

     Tr. at 41-42.
Stark County, Case No. 2016CA00095                                                     10


      {¶30} The trial court sentenced Appellant to six years on the charge of aggravated

burglary, three years on the specification, to run consecutive to the six year period. Six

years on the charge of aggravated robbery, with three years on the specification.

      {¶31} The trial court imposed a four year term on the felonious assault count, to

be served consecutive to counts one and two, which run concurrent to each other. The

trial court imposed three years on the firearm specification. The trial court summarized

the sentence at hearing,



             By my mathematics what that adds up to is a six-year term on Counts

      One and Two, a four-year term on Count Three and three-year firearm

      specification for a total period of thirteen years of incarceration.

      Tr. at 43.



      {¶32} The trial court’s April 11, 2016 Judgment Entry merges the sentences

imposed on the firearm specifications. However, the judgment entry does not make

findings relative to consecutive sentencing. The trial court ordered,



             IT IS FURTHER ORDERED that the defendant shall serve the

      sentences for Aggravated Burglary, 1 Ct. [R.C. 2911.11(A)(1) and/or (A)(2)]

      (F1) (with Firearm Specification) and Felonious Assault, 1 Ct. [R.C.

      2903.11(A)(1) and or (2)] (F2) (with Firearm Specification) consecutively,

      but concurrent with the sentence for Aggravated Robbery, 1 Ct. [R.C.
Stark County, Case No. 2016CA00095                                                       11


       2911.01(A)(1) and/or (A)(3)] (F1) (with Firearm Specification), for a total

       sentence of thirteen (13) years.



       {¶33} Upon review of the trial court’s imposition of sentence at the hearing and in

the April 11, 2016 sentencing entry, we find the trial court failed to make the statutorily

required findings pursuant to R.C. 2929.14(C)(4).

       {¶34} The second assignment of error is sustained, and the matter is remanded

to the trial court for resentencing.

                                                III.

       {¶35} In the third assignment of error, Appellant maintains the trial court failed to

find the charges herein allied offenses of similar import.

       {¶36} R.C. 2941.25, Multiple counts, states:



              (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.
Stark County, Case No. 2016CA00095                                                    12

      {¶37} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the

Ohio Supreme Court revised its allied-offense jurisprudence,



             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

      involving separate victims or if the harm that results from each offense is

      separate and identifiable.



      {¶38} The Court further explained,



             A trial court and the reviewing court on appeal when considering

      whether there are allied offenses that merge into a single conviction under

      R.C. 2941.25(A) must first take into account the conduct of the defendant.

      In other words, how were the offenses committed? If any of the following is

      true, the offenses cannot merge and the defendant may be convicted and

      sentenced for multiple offenses: (1) the offenses are dissimilar in import or

      significance—in other words, each offense caused separate, identifiable

      harm, (2) the offenses were committed separately, and (3) the offenses

      were committed with separate animus or motivation.

             ***
Stark County, Case No. 2016CA00095                                                        13


             An affirmative answer to any of the above will permit separate

      convictions. The conduct, the animus, and the import must all be

      considered.



      {¶39} As set forth in our analysis and disposition of Appellant’s first assigned error,

Appellant was convicted of one count of aggravated robbery, in violation of R.C.

2911.01(A)(1) and/or (3); one count of aggravated burglary, in violation of R.C.

2911.11(A)(1) and/or (2); and one count of felonious assault, in violation of R.C.

2903.11(A)(1) and/or (2).



      {¶40} We find Appellant gained access to the home by deception. Appellant

showed Estep a bag of marijuana for sale in order to gain access to the home, but his

actual purpose was to commit a theft offense. Once inside, Appellant struck the victim

with the firearm causing injury. Appellant further demanded and took the victim’s money,

thereby committing the theft offense.2

      {¶41} We find the offense of aggravated burglary was committed at the time

Appellant entered the home with a firearm, deceptively indicating he was there for the

purpose of selling marijuana. Appellant then separately committed the offense of

aggravated robbery when he repeatedly struck Estep with the firearm, demanding and

taking money from Estep at gun point. The intent to commit any criminal offense while

trespassing constitutes the commission of the burglary and no criminal offense actually



2
 We concede Appellant’s motive for both the aggravated burglary and aggravated
robbery counts was the same and the offenses were committed as a continuous course
of conduct.
Stark County, Case No. 2016CA00095                                                       14

needs to be committed to support the burglary charge. State v. Lewis, 5th Dist. Richland

No. 15CA106, 2016-Ohio-7002, citing State v. Huhn, 5th Dist. Perry No. 15-CA-00006,

2015-Ohio-4929.     “Even if the criminal offense is actually committed, the burglary was

already completed and the subsequent crimes were then committed with separate

conduct.” Id. The harm resulting from an aggravated burglary is “separate and identifiable”

in relation to an aggravated robbery that follows once inside a victim's home. Id. We find

the trial court did not err in imposing separate consecutive sentences for the offenses of

aggravated burglary and aggravated robbery.

       {¶42} As to the charge of felonious assault, the Bill of Particulars in this matter

states Appellant knowingly caused serious physical harm to Estep and/or caused or

attempted to cause physical harm to Estep by means of a deadly weapon when he and

his two accomplices brandished guns and forced their way into the home. The Bill of

Particulars then states, “Appellant displayed the firearm, pistolwhipped Estep (causing an

abrasion to his left elbow) and stole money and a cell phone from him. Estep also suffered

a broken arm as a result of attempting to escape the attack.” Bill of Particulars, 3/8/16.

       {¶43} We find the conviction for felonious assault should merge with Appellant’s

conviction for aggravated robbery. The harm caused by the offenses is not separate and

identifiable, and the felonious assault was committed during the commission of the

aggravated robbery.3




3
 We do find Estep’s injury while fleeing supports an independent charge of felonious
assault which would warrant a finding the felonious assault is not an allied offense with
aggravated robbery under the facts presented in this case.
Stark County, Case No. 2016CA00095                                                    15


      {¶44} Appellant’s third assignment of error is sustained, in part, and overruled in

part. Appellant’s sentence is vacated and the matter is remanded to the trial court for

further proceedings in accordance with the law and this Opinion.

By: Hoffman, J.

Gwin, P.J. and

Wise, John, J. concur
