         [Cite as State v. Phelps, 2011-Ohio-3144.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-100096
                                                          TRIAL NO. B-0900891
        Plaintiff-Appellee,                           :

  vs.                                                 :   D E C I S I O N.

THOMAS PHELPS,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed in Part, Sentences Vacated in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 29, 2011


Joseph T. Deters, Hamilton County Prosecutor, and Ronald W. Springman, Jr.,
Assistant Prosecutor, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




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




Per Curiam.

       {¶1}    Defendant-appellant Thomas Phelps left the Almost Home Bar after a

scuffle with an employee and returned shortly thereafter with a loaded gun that he

used to shoot and kill the employee. The bar’s surveillance system captured these

events. As a result, Phelps was later charged with and convicted of one count of

aggravated murder and two counts of having weapons under a disability. Despite

Phelps’s claim that the killing had been provoked, the jury found that he had acted

with prior calculation and design.

       {¶2}    For the reasons that follow, we affirm Phelps’s aggravated-murder

conviction and the findings of guilt with respect to the weapons offenses, but we

vacate his sentences for the weapons offenses and remand the case to the trial court

for resentencing on only one of those offenses.

                               Background Facts

       {¶3}    In the early morning hours on February 9, 2009, Corey Land was

working as a bouncer at the Almost Home Bar. At about 1:21:24 a.m., at the bar

owner James Tatum’s request, Land had gone to Phelps, who had been sitting at the

bar, and instructed him to take his feet off a barstool. This angered Phelps, who had

a heated conversation with Land before storming out of the bar. Phelps returned

immediately and physically attacked Land. The two scuffled on the ground, and

others in the bar intervened to separate the two. Phelps suffered a cut to his hand,

and he believed that Land had stabbed him with a knife.            But none of the

eyewitnesses testified that they had seen Land with a knife or another weapon. Two

eyewitnesses believed that Phelps had cut his hand on glass that was on the floor of




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                     OHIO FIRST DISTRICT COURT OF APPEALS



the bar, and one eyewitness believed that Phelps had cut his hand on the bar’s

bowling machine.

       {¶4}    After the scuffle, both Phelps and Land were angry. Phelps was asked

to leave, and at 1:25:40 a.m. he left the bar. As Phelps left, Land shouted, “I’m going

to kill him. * * * Did you see what I did to him?”

       {¶5}     Tatum decided to close the bar for the night and had the door locked.

Most patrons left the bar, except for two women who refused to leave until they

finished their drinks. Upon finishing, one of them unlocked the door. While they

exited at 1:29:56 a.m., Phelps swiftly reentered the bar, armed with a loaded pistol.

He immediately located Land, who was cleaning up behind the bar, and then

repeatedly fired at him. Phelps pursued Land as Land ran up and down the space

behind the bar in a futile attempt to avoid the gunfire. One of the bullets struck Land

in his back and killed him.

       {¶6}    Detective Robert Merkle of the Springdale Police Department

responded to the bar to investigate the shooting. He viewed the footage from the

night that had been captured by the bar’s GeoVision surveillance system. That

system included four video cameras and stored the surveillance on the bar’s

computer’s hard drive. Merkle saved to a CD and then to a DVD the video clips from

all four cameras that covered the approximately ten-minute period beginning shortly

before Land asked Phelps to remove his feet from the stool and ending with the

shooting. Merkle reviewed the earlier footage, but he did not observe in the footage

anything material to the investigation or potentially useful to Phelps, particularly in

light of the eyewitness statements and the footage of the actual altercations. The

system automatically recorded over the rest of the video clips in less than nine days.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



          {¶7}     The police did not recover a knife or a gun in the bar. But they did

recover on the floor of the bar a broken glass that contained traces of Phelps’s blood.

          {¶8}     The grand jury indicted Phelps on one count of aggravated murder

with prior calculation and design and two counts of having weapons under a

disability.      One of the weapons counts alleged that Phelps had a disability that

prevented him from having a gun based on a conviction for a felony offense of

violence;1 the other count alleged that the disability was due to a conviction for a

drug offense.2 The indictment also contained firearm specifications.

          {¶9}     Prior to trial, Phelps moved to suppress the preserved video clips on

the ground that Merkle’s failure to preserve the clips from the entire night had

violated his due-process rights. The trial court denied the motion to suppress, and

the preserved video clips were admitted at trial as state’s exhibit 66.      Further, at

Phelps’s request, the court instructed the jury on the offense of voluntary

manslaughter. The jury found Phelps guilty of aggravated murder with a firearm

specification and the weapons offenses. The trial court sentenced Phelps to life

imprisonment without parole for the aggravated murder, which was made

consecutive to a three-year term for the firearm specification and to two five-year

terms for having a weapon under a disability. This appeal followed.

                          Failure-to-Preserve-Evidence Claim

          {¶10}    In his sixth assignment of error, which we address first, Phelps

contends that Merkle violated his due-process rights by failing to preserve

surveillance clips from the earlier part of the night and that, as a result, the trial

court erred by not suppressing state’s exhibit 66, the surveillance clips that Merkle



1   R.C. 2923.13(A)(2).
2   R.C. 2923.13(A)(3).


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                       OHIO FIRST DISTRICT COURT OF APPEALS



had saved on a DVD. According to Phelps, the unpreserved clips may have shown

Land with a knife earlier in the night, and that fact could have bolstered his

provocation defense and led to an acquittal on the aggravated-murder charge and a

conviction on the reduced charge of voluntary manslaughter.

          {¶11}   In accordance with the Fourteenth Amendment’s Due Process

Clause’s requirement of “fundamental fairness” in criminal prosecutions, a

defendant must be afforded a meaningful opportunity to present a complete

defense.3 This bedrock principle has led to the development of case law in “ ‘the area

of constitutionally guaranteed access to evidence.’ ”4 The state violates a defendant’s

due-process rights when it fails to preserve “materially exculpatory”5                evidence,

regardless of whether the state has acted in good or bad faith.6

          {¶12}   But “fundamental fairness” does not “impos[e] on the police an

undifferentiated and absolute duty to retain and to preserve all material that might

be   of    conceivable    evidentiary    significance    in   a   particular    prosecution.”7

Consequently, the state’s failure to preserve “potentially useful evidence” does not

constitute a denial of due process of law unless a criminal defendant can show bad

faith on the part of the police.8         “Bad faith implies something more than bad

judgment or negligence; it imports a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive or ill will




3 California v. Trombetta (1984), 467 U.S. 479, 485, 104 S.Ct. 2528.
4 Id., quoting United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 867, 102 S.Ct. 3440; see,
also, Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333.
5 See Trombetta, 467 U.S. at 489 (holding that to meet the materially exculpatory standard,
“evidence must both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means”).
6 State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, at ¶10; State v. Myles,
1st Dist. No. C-050810, 2007-Ohio-3307, at ¶65.
7 Youngblood at 58.
8 State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, syllabus, following
Youngblood, supra.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



partaking of the nature of fraud. It also embraces actual intent to mislead or deceive

another.”9

        {¶13}    At the suppression hearing, Merkle testified that he had not observed

any footage in the unsaved portion that could have been useful to the defendant, and

that this conclusion was bolstered by the statements from the eyewitnesses. These

eyewitnesses had reported to the police at the scene that Land’s request for Phelps to

remove his foot from the barstool had instigated the chain of events that night.

Further, Merkle and the state were forthcoming by admitting that the footage had

existed.

        {¶14}    The trial court did not make factual findings when it overruled the

motion to suppress, but the record demonstrates that the trial court impliedly found

Merkle’s testimony credible.           Accepting this finding, which is supported by

competent, credible evidence,10 we find that the facts do not demonstrate that Merkle

failed to preserve materially exculpatory evidence or that he failed to preserve

potentially useful evidence in bad faith.

        {¶15}    Additionally, Phelps was able to argue to the jury that the footage

might have showed Land with a knife earlier in the night and that Merkle’s conduct

reflected a compromised investigation. And the trial court instructed the jury on the

offense of voluntary manslaughter even without evidence that Land had a knife

earlier in the night. Thus, Phelps was afforded a meaningful opportunity to present a

complete defense. Because Phelps has not demonstrated a due-process violation, the

record does not manifest any error by the trial court in denying Phelps’s motion to

suppress. Accordingly, we overrule the sixth assignment of error.


9 Benson, 2003-Ohio-1944, at ¶14 (internal quotations omitted), cited in State v. Acosta, 1st Dist.
No. C-020767-71, 2003-Ohio-6503, at ¶9.
10 See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



                                       Batson Claim

        {¶16}    We next address Phelps’s seventh assignment of error. Phelps, who is

an African-American, argues that the state used peremptory challenges to excuse

three prospective jurors because of their race, in violation of his equal-protection

rights under Batson v. Kentucky.11

        {¶17}    A Batson claim is adjudicated in three steps. If the opponent of the

peremptory challenge makes a prima facie case of racial discrimination, then the

proponent of the challenge must provide a racially neutral explanation for the

challenge.12 Finally, the trial court must determine based on all the circumstances

whether the opponent has proved purposeful discrimination.13                   A trial court’s

conclusion that the proponent did not possess a discriminatory intent will not be

reversed on appeal unless it is clearly erroneous.14

        {¶18}    During jury selection, the state questioned the prospective jurors and

exercised peremptory challenges to excuse jurors nine, eight, and eighteen, all

African-Americans. Phelps raised a Batson claim after each peremptory challenge.

        {¶19}    The prosecutor proffered that she had excused potential juror nine

because of her overall demeanor, as demonstrated by facial expressions and

boisterous responses, and potential juror eighteen because his overall demeanor and

short answers indicated a lack of rapport. The trial court found that these were race-

neutral reasons that were specifically supported by its own observations, and it

rejected a finding of purposeful discrimination.




11(1986), 476 U.S. 79, 106 S.Ct. 1712.
12 Id. at 96-98.
13 Id. at 98.
14 State v. Hernandez (1992), 63 Ohio St.3d 577, 583, 589 N.E.2d 1310, following Hernandez v.
New York (1991), 500 U.S. 352, 111 S.Ct. 1859; State v. Glenn, 1st Dist. No. C-090205, 2011-Ohio-
829, ¶19.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



          {¶20}    On this record, we cannot say that the trial court’s finding of no

discriminatory intent was clearly erroneous with respect to these two potential

jurors.

          {¶21}    The prosecutor proffered that she had excused potential juror eight

based on the potential juror’s family members’ involvement in the criminal justice

system, including a close cousin with a murder conviction and a brother who had

recently been convicted of drug and robbery offenses, and the potential juror’s

employment at a facility for troubled youths. The trial court found the state’s race-

neutral explanation supported by the record and also rejected a finding of purposeful

discrimination.

          {¶22}    Although we are unable to determine from the record before us,

which does not include the juror’s questionnaire, that this potential juror’s brother

had been convicted of a robbery offense, the record demonstrates that the state had

otherwise accurately summarized the potential juror’s family’s criminal history and

his place of employment.        Thus, we cannot say that the trial court’s finding of no

discriminatory intent was clearly erroneous.

          {¶23}    In sum, we are unable to find clear error in the trial court’s

determination that the state’s use of peremptory challenges to dismiss three African-

American potential jurors was not racially motivated. Because the record does not

manifest the error assigned, we overrule the seventh assignment of error.

                  Sufficiency- and Weight-of-the-Evidence Claims

          {¶24}    In his first, second, and third assignments of error, Phelps contends

that his aggravated-murder conviction was not supported by sufficient evidence and

was against the manifest weight of the evidence. Because Phelps was convicted of

aggravated murder under R.C. 2903.01(A), the state was required to establish that



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                       OHIO FIRST DISTRICT COURT OF APPEALS



Phelps had caused the death of Land and that he had done so purposefully and with

prior calculation and design.

        {¶25}    It was undisputed that Phelps caused Land’s death. And the evidence

supported a finding that Phelps acted with specific intent to kill15 where Phelps

repeatedly shot at Land with a firearm, an inherently dangerous instrumentality, the

use of which is likely to produce death.16

        {¶26}    Further, the evidence supported a finding of prior calculation and

design. Certainly, “[i]nstantaneous deliberation is not sufficient to constitute ‘prior

calculation and design.’ ”17 But “prior calculation and design can be found even when

the killer quickly conceived and executed the plan to kill within a few minutes.”18

Ultimately, such a finding is justified “[w]here evidence adduced at trial reveals the

presence of sufficient time and opportunity for the planning of an act of homicide to

constitute prior calculation, and the circumstances surrounding the homicide show a

scheme designed to implement the calculated decision to kill.”19

        {¶27}    In this case, there was evidence that Phelps had planned the homicide

after his scuffle with Land and that he carried out this plan after leaving the bar by

retrieving a loaded firearm, reentering the bar when the door became unlocked, and

firing at Land until he killed him.       Although less than five minutes expired during

Phelps’s absence from the bar, the amount of time and the degree of purpose




15 See R.C. 2901.22(A).
16  See State v. Byrd, 1st Dist. No. C-050490, 2007-Ohio-3787, ¶38, citing State v. Widner (1982),
69 Ohio St.2d 267, 270, 431 N.E.2d 1025. See, also, State v. Sullivan, 10th Dist. No. 07AP247,
2008-Ohio-391, ¶13 (holding that “[t]he act of pointing a firearm and firing it in the direction of
another human being is an act with death as a natural and probable consequence”).
17 State v. Cotton (1978), 56 Ohio St.2d 8, 381 N.E.2d 190, paragraph two of the syllabus.
18 State v. Coley, 93 Ohio St.3d 253, 264, 2001-Ohio-1340, 754 N.E.2d 1129, quoted in Byrd,
2007-Ohio-3787, at ¶48.
19 Cotton, supra, at paragraph three of the syllabus.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



amounted to more than “instantaneous deliberation,” as these factors demonstrated

“a scheme designed to implement the calculated decision to kill.”20

        {¶28}    The evidence showed that there was sufficient time, reflection, and

activity involved in Land’s murder to satisfy the elements of proof that Phelps had

killed him with prior calculation and design. Construing the evidence in a light most

favorable to the state, as we are required to do, we hold that any rational juror could

have found the essential elements of the crime beyond a reasonable doubt.21 Thus,

we conclude that Phelps’s aggravated-murder conviction was supported by sufficient

evidence.

        {¶29}    Phelps argues also that the jury lost its way by rejecting his defense

that he was provoked into using deadly force and was therefore guilty only of

voluntary manslaughter. But our review of the record fails to persuade us that the

trier of fact clearly lost its way and created a manifest miscarriage of justice in

rejecting his defense.22

        {¶30}    A person commits voluntary manslaughter when he knowingly causes

the death of another “while under the influence of sudden passion or in a sudden fit

of rage, either of which is brought on by serious provocation occasioned by the victim

that is reasonably sufficient to incite the person into using deadly force.”23

        {¶31}    While there was evidence that Land had cut Phelps’s hand during the

scuffle and had yelled as Phelps left the bar that he was going to kill him, the jury was

free to reject Phelps’s tenuous argument that he was legally provoked over four

minutes later when he reentered the bar with a loaded gun to find and to kill Land.


20 See id.
21 State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781.
22 See Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211; see, also, State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
23 R.C. 2903.03.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶32}    We note that the weight to be given the evidence and the credibility of the

witnesses were primarily for the trier of fact to determine.24 Accordingly, we overrule

the first, second, and third assignments of error.

                             Multiple-Punishment Claim

        {¶33}    In his fifth assignment of error, Phelps contends that the weapons-

under-disability offenses were allied offenses of similar import committed neither

separately nor with a separate animus as to each and, therefore, that sentencing him

for both offenses violated R.C. 2941.25, Ohio’s multiple-count statute. We agree.

        {¶34}    Under R.C. 2941.25, a trial court, in a single proceeding, may convict

and sentence a defendant for two or more offenses “ ‘having as their genesis the same

criminal conduct or transaction,’ ” if the offenses (1) were not allied offenses of

similar import, (2) were committed separately, or (3) were committed with a

separate animus as to each offense.25

        {¶35}    In State v. Johnson,26 the Ohio Supreme Court abandoned the abstract-

elements test of State v. Rance27 and held that “when 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.”28           All seven justices concurred in the syllabus

overruling Rance. Although the justices could not reach a majority opinion with regard

to the analysis that courts should use in determining whether two or more offenses are

allied offenses of similar import under R.C. 2941.25(A),29 they uniformly agreed that the



24  See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.
25 State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss
(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181; see, also, State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, at ¶51; State v. Blankenship (1988), 38 Ohio St.3d 116, 117,
526 N.E.2d 816.
26 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, cited in State v. Mackey, 1st Dist. No.
C-100311-14, 2011-Ohio-2529, at ¶16.
27 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699.
28 State v. Johnson, supra, syllabus.
29 Id. at ¶47-52 (Brown, C.J.); id. at ¶59-71 (O’Connor, J.); id. at ¶72-83 (O’Donnell, J.).




                                               11
                      OHIO FIRST DISTRICT COURT OF APPEALS



conduct of the accused must be considered.30 Therefore, when, as here, there has been

a trial, we look to the evidence adduced at trial, and if that evidence reveals that the state

relied upon the “same conduct” to prove the two offenses, and that the offenses were

committed neither separately nor with a separate animus as to each, then the defendant

is afforded the protections of R.C. 2941.25, and the trial court errs by imposing separate

sentences for the offenses.31

         {¶36}   Although Phelps was both a violent-crime and a drug-crime offender,

we do not consider this prior conduct for purposes of determining whether his two

violations of the weapons-under-a-disability statute were allied offenses of similar

import. Instead, we look at his conduct at the time of the R.C. 2923.13(A) violations.

The facts at trial reveal that the state relied on identical conduct—Phelps’s single act

of possession—to prove the violation of R.C. 2923.13(A)(2) and 2923.13(A)(3). Thus,

the offenses were allied offenses of similar import.32

         {¶37}   Further, the record shows that Phelps violated both statutes by one

act of possession and that he had the same animus for both violations. As there was

no evidence of separate conduct or separate animus, Phelps was entitled to the

protections of the multiple-count statute.        Accordingly, the trial court erred by

sentencing him for both offenses. As a result, we sustain Phelps’s fifth assignment of

error.

                            Excessive-Sentences Claim

         {¶38}   In his fourth assignment of error, Phelps contends that his sentences

are excessive. In light of our resolution of Phelps’s fifth assignment of error, only his



30 Id. at syllabus.
31R.C. 2941.25(A); see, also, R.C. 2941.25(B); Johnson, supra, at ¶56.
32 Compare State v. Render, 1st Dist. No. C-060382, 2007-Ohio-1606 (holding that two weapons-
under-disability charges based on the same weapon did not involve allied offenses under the
Rance test).


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                       OHIO FIRST DISTRICT COURT OF APPEALS



claim that the trial court erred in imposing a life sentence without the possibility of

parole for the aggravated murder and making it consecutive to the sentences for the

other offenses, including the three-year mandatory term for the firearm

specification, is properly before this court for review.

        {¶39}    We conduct a two-part review of Phelps’s sentence of imprisonment.33

First, we must determine whether the sentence was contrary to law.34 Then, if the

sentence was not contrary to law, we must review it to determine whether the trial

court abused its discretion in imposing it.35

        {¶40}    Here the sentences imposed were not contrary to law. The term of

imprisonment imposed for the aggravated murder, a special felony, was within the

range provided by statute.36 Further, the court was required by law to impose a

three-year consecutive term for the firearm specification.

        {¶41}    And although the court did not specifically state that it had

considered R.C. 2929.11 and 2929.12, we may presume that it did.37 Having presided

over Phelps’s trial, the trial court was well acquainted with the facts surrounding the

crimes. The court was also aware of Phelps’s prior criminal record. On the state of

this record, we cannot say that the trial court acted unreasonably, arbitrarily, or

unconscionably in imposing the sentences.

        {¶42}    Finally,   Phelps’s    suggestion    that    Ohio’s   former   consecutive-

sentencing statutory provisions have been revived has been unambiguously rejected.




33 See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
34 See id. at ¶14.
35 See id. at ¶17.
36 R.C. 2929.03(A); see, also, Kalish, supra, at ¶11-12.
37 See State v. Wilson, Slip Opinion No. 2011-Ohio-2669,¶31.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



As this court has consistently held, a trial court is not obligated to engage in judicial

fact-finding before imposing consecutive sentences.38

       {¶43}    After our review of Phelps’s sentences for these offenses, we conclude

that the assignment of error is meritless.          Accordingly, we overrule the fourth

assignment of error.

                                       Conclusion

       {¶44}     We affirm the judgment of the trial court convicting Phelps of

aggravated murder with a three-year firearm specification.              We also affirm the

judgment of the trial court finding that Phelps had committed the offenses of having

weapons under a disability under R.C. 2923.13(A)(2) and 2923.13(A)(3). But these

weapons offenses were based on identical conduct. Because the record demonstrates

that these offenses were allied offenses of similar import committed neither

separately nor with a separate animus as to each, Phelps may be sentenced for only

one. Thus, we vacate the separate sentences for these offenses and remand the case

to the trial court for resentencing on only one of the two offenses.39

                                                                     Judgment accordingly.

SUNDERMANN, P.J., HENDON and CUNNINGHAM, JJ.

Please Note:

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




38  State v. Love, 1st Dist. No. C-100563, 2011-Ohio-2224, ¶11, citing State v. Hodge, 128 Ohio
St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, paragraph three of the syllabus.
39 See State v. Wilson, supra, paragraph one of the syllabus.




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