[Cite as State v. Thaler, 2020-Ohio-827.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case Nos. 28402 & 28403
                                                  :
 v.                                               :   Trial Court Case Nos. 2017-CR-3796
                                                  :   & 2018-CR-2522
 DION EARL THALER                                 :
                                                  :   (Criminal Appeal from
          Defendant-Appellant                     :   Common Pleas Court)
                                                  :

                                             ...........

                                            OPINION

                              Rendered on the 6th day of March, 2020.

                                             ...........

MATHIAS H. HECK JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite
830, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

HALL, J.
                                                                                         -2-


       {¶ 1} Dion Earl Thaler appeals from his conviction following a bench trial in two

consolidated cases on charges of having a weapon while under disability (with a three-

year firearm specification), vandalism (with a three-year firearm specification), and felony

domestic violence.

       {¶ 2} Thaler advances four assignments of error. First, he contends the trial court

erred in applying a three-year firearm specification to the offense of having a weapon

while under disability where there was no evidence that he displayed, brandished,

indicated that he possessed, or used the firearm to facilitate the offense. Second, he

claims the trial court erred in applying a three-year firearm specification to his vandalism

conviction for the same reason. Third, he asserts that the trial court erred in finding him

guilty of having a weapon while under disability because the State presented legally

insufficient evidence to prove operability of the weapon he possessed. Fourth, he

challenges the trial court’s imposition of a consecutive sentence.1

       {¶ 3} The charges against Thaler involved allegations that he had assaulted his

girlfriend and later, while armed with a handgun, had damaged a business she owned.

The primary witness at trial was Thaler’s girlfriend, A.D. She testified that she met Thaler

and started dating him in May 2017. (Tr. at 38.) They immediately became romantically

involved. For a short time, they met and spent nights at hotels because A.D. was not

ready to bring him to her home. Within a week or so, however, Thaler brought his

belongings to A.D.’s house and began spending the night there. (Id. at 39-41.) Within a


1 Thaler filed his initial appellant’s brief on August 21, 2019 under only Montgomery C.A.
No. 28402. He then filed an “amended” appellate brief on December 10, 2019 under
Montgomery C.A. Nos. 28402 and 28403 in recognition of the appeals being
consolidated. The inclusion of both appellate case numbers is the only change in the
amended brief.
                                                                                         -3-


few weeks, Thaler began working as a cook at a restaurant A.D. owned. He began living

with her every day and riding to work with her. (Id. at 45.)

       {¶ 4} Toward the end of July, the couple’s relationship became “very strained.” (Id.)

Thaler began spending some time at an elderly lady’s house a block away from A.D., but

he still was working at the restaurant. (Id. at 59.) On August 10, 2017, Thaler called A.D.

and asked her to pick him up because he had been in a bar fight. (Id. at 60-61.) A.D.

agreed and took him to his mother’s house. When Thaler’s mother refused to let him stay,

A.D. took him with her to another bar, the Whisky Barn. She went inside to pay an

outstanding bar tab while Thaler waited in her car. (Id. at 62.) Thaler eventually came

inside the bar and began cursing at A.D. and telling her to “come out.” He proceeded to

take her keys, punch her in the mouth, and leave in her car. (Id. at 63.) A.D. got someone

else to drive her home, but she could not get inside because Thaler had her keys. (Id.)

She then learned that her car and keys were in Thaler’s sister’s driveway. A.D. got a ride

there, retrieved her car, and went home. (Id. at 64.)

       {¶ 5} Later that night, A.D. was asleep in bed when she awoke to find Thaler

beating her. He was punching her in the face, head, and chest with a closed fist. (Id. at

65-66.) A.D. told Thaler that she loved him to get him to stop. He subsequently stopped

the beating and told her to lay down with him. (Id.) The following morning, A.D. went

outside and got in her car while Thaler was still in bed. She drove to the hospital

emergency room. (Id. at 67.) Once there, A.D. lied about the identity of her attacker,

claiming that she did not know the person who had broken into her house and assaulted

her. She did not identify Thaler as the person who beat her because she was afraid, and

he had texted her and told her not to say anything. (Id.) A.D. spent three days in the
                                                                                           -4-


hospital as a result of her injuries. (Id. at 71.) After her discharge, she stayed in a hotel

for a while because Thaler had kicked her house door in and she did not feel safe there.

(Id. at 73.)

       {¶ 6} One week after the assault, A.D. encountered Thaler at her restaurant. She

arrived to find him inside. He was drunk, belligerent, and “talking crazy.” (Id. at 74-75.)

She exited and told Thaler from the doorway that he needed to leave. She then sat in her

vehicle and watched him walking back and forth to her office. He eventually left out the

back door, and A.D. locked up and left. (Id. at 75.) Thaler appeared at A.D.’s house later

that night, and a brief altercation occurred involving him slamming her arm in a door

before leaving. (Id. at 78-79). The following morning, A.D. went to work and discovered

that her office computer and the restaurant’s two restrooms had been vandalized. (Id. at

79-83.) She reviewed video from multiple surveillance cameras showing that Thaler had

caused the damage to the computer. The video also showed him going in and out of the

restrooms. Finally, the video showed Thaler carrying a handgun that A.D. recognized as

one she had kept in the restaurant. A.D. testified that it was the same gun she had seen

Thaler fire in the air on the Fourth of July. (Id. at 90.) She testified that the video showed

Thaler in the restaurant when she had been talking to him from the doorway and when

she was watching him from her car. (Id. at 91.) The surveillance video was played at trial.

(State’s Exhibit 6.)

       {¶ 7} Following an incident with Thaler at a gas station on August 24, 2017, A.D.

contacted the police and identified him as the person who had assaulted her in her home.

(Id. at 97-99.) Sometime after Thaler’s arrest in September 2017, A.D. felt safe enough

to go to the police department and give a full account of the assault and the subsequent
                                                                                          -5-


vandalism. (Id. at 99-100.)

       {¶ 8} The only other witness at trial was Ereika Howard, who served as Thaler’s

parole officer at the time of the events at issue. Howard testified that Thaler got out of

prison in February 2017 after serving time for attempted aggravated burglary and that she

became his parole officer in May or June 2017. (Id. at 138-139.) On cross examination,

Howard testified about seeing a picture of Thaler with a gun on his cell phone. (Id. at 140.)

She saw the picture on or around July 24, 2017, and she subsequently imposed a

requirement “that he should have no toy guns, ammo, BB guns, et cetera and to delete

all play gun pictures[.]” (Id. at 147-148.) On redirect examination, Howard testified that

she did not talk to A.D. about the gun in the picture. Howard also testified that she did not

know whether the gun in the picture actually was a toy gun. (Id. at 149.)

       {¶ 9} Based on the evidence presented, the trial court found Thaler guilty of third-

degree-felony domestic violence in Montgomery C.P. No. 2017-CR-3796. It found him

guilty of having a weapon while under disability, a third-degree felony, and vandalism

(business property of $1,000 or more), a fifth-degree felony, both with three-year firearm

specifications, in Montgomery C.P. No. 2018-CR-2522.2

       {¶ 10} At sentencing, the trial court merged the firearm specifications in the

weapon-under-disability and vandalism case and imposed a single three-year prison

term. It imposed concurrent 12-month prison sentences for having a weapon while under

disability and vandalism. The trial court ordered the three-year sentence on the firearm

specification and the 12-month term on the underlying offenses to be served



2The trial court found Thaler not guilty of a second charge of vandalism (damage to
business regardless of value).
                                                                                          -6-


consecutively. The result was an aggregate four-year sentence in that case. The trial

court also awarded A.D. restitution of $1,600. In the domestic-violence case, the trial court

imposed a three-year prison term, which it ordered to be served consecutive to the

aggregate four-year sentence in the other case.

       {¶ 11} In his first two assignments of error, Thaler challenges the trial court’s

determination that the three-year firearm specifications accompanying the weapon-

under-disability and vandalism charges had been proven. Even if he had a firearm in his

possession or control, he challenges the legal sufficiency of the evidence to establish that

he displayed the firearm, brandished it, indicated that he possessed it, or used it to

facilitate either offense, as required by R.C. 2941.145(A).

       {¶ 12} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d

Dist. 2000). “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 13} With the foregoing standards in mind, we find Thaler’s argument to be

persuasive. The firearm specifications accompanying the weapon-under-disability and

vandalism charges involved him having a handgun with him when he damaged A.D.’s
                                                                                         -7-


restaurant. Surveillance video from inside the restaurant shows the gun lying on an office

desk next to A.D.’s computer when Thaler smashed the computer. He later picked up the

gun and took it with him as he moved into the main part of the restaurant. A.D. testified

that Thaler previously had taken the gun from the restaurant and that he carried it “all the

time.” (Tr. at 50-52.) Therefore, as the State argues, it is reasonable to infer that Thaler

brought the weapon into the restaurant, placed it on the desk, picked it up, and took it

with him when he left. (The gun was not found at the scene and never was recovered).

       {¶ 14} A three-year firearm specification requires proof “that the offender had a

firearm on or about the offender’s person or under the offender’s control while committing

the offense and displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145(A); see also

R.C. 2929.14(B)(1)(a)(ii). Here the video supports a finding that Thaler had a firearm on

his person or under his control inside the restaurant. The issue raised by his assignment

of error is whether he also did one of the other things the statute requires.

       {¶ 15} We conclude that Thaler did not “brandish” the gun. The word “brandish” in

the statute means “ ‘to waive or flourish (something, especially a weapon) as a threat or

in anger or excitement.’ ” State v. Myrick, 2d Dist. Montgomery No. 23843, 2011-Ohio-

244, ¶ 85, quoting Oxford English Dictionary Online, http://oxforddictionaries.com. When

the incident occurred, A.D. initially was near the front door of the restaurant. (Tr. at 75,

91, 125.) She then went to her car and waited for Thaler to leave. A.D. never saw the gun

at the scene. (Id. at 75.) And the video does not depict Thaler waiving it around in the

empty restaurant. Based on these facts, we conclude that he did not brandish the weapon.

He also did not indicate to anyone that he possessed the gun at the time of his offenses.
                                                                                         -8-


Nor did he “use” the gun “to facilitate” the offenses, which means to make them easier to

commit. Id.

       {¶ 16} On appeal, the State maintains that Thaler “displayed” the handgun inside

the restaurant while committing his offenses. The State reasons that he did so by

apparently placing the weapon on the desk when damaging the computer. 3 This

argument ascribes a meaning to the word “display” that is contrary to the intent of the

statute. In Myrick, this court recognized that the additional three-year prison term imposed

for displaying, brandishing, indicating possession of, or using a firearm is intended to

punish conduct that increases the risk of harm or other consequences associated with a

criminal offense. Id. at ¶ 84-85.

       {¶ 17} This court defined “display” in Myrick for purposes of the firearm

specification to mean to “make a prominent exhibition of (something) in a place where it

can be easily seen: [i.e.,] the palace used to display a series of Flemish tapestries.”

(Emphasis sic.) Id at ¶ 85. This court then held that the defendant did not “display” a

handgun, within the meaning of the firearm-specification statute, when he tossed it over

a fence as a police officer approached. This was so because the act of tossing the weapon

over the fence was not a type of “risk-increasing” conduct involving the weapon.

       {¶ 18} We reach the same conclusion here. We are unpersuaded that Thaler

“displayed” the handgun, within the meaning of the statute, when he placed it on a table

in the restaurant’s unoccupied office. Thaler was alone in the empty restaurant at the


3 The portion of the surveillance video we have does not actually show Thaler placing the
gun on the desktop next to the computer. After he smashes the computer, however, he
does return to the office and retrieve the gun, which he carries into another part of the
restaurant. And A.D. testified that Thaler previously had taken the gun from the restaurant
and that he carried it all the time.
                                                                                          -9-


time. (Tr. at 75, 91, 125.) The weapon could not easily have been seen by anyone at that

time because no one was there. Moreover, the act of placing the weapon on the table,

and subsequently picking it back up, did not constitute a “prominent exhibition” of the

weapon in the empty building. Finally, Thaler’s act of placing the gun on the table did not

increase the risk of harm to anyone or make any other undesirable consequences more

likely. For these reasons, we hold that Thaler did not “display” the handgun, as required

for a three-year firearm specification conviction.

       {¶ 19} We note, however, that R.C. 2941.141(A) creates a one-year firearm

specification requiring only proof “that the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the offense.” The

difference between this specification and the three-year specification is that the one-year

variety does not require proof that the offender displayed, brandished, indicated

possession of, or used the firearm. In Myrick, we reversed and remanded for the trial court

to sentence the defendant on the one-year specification after finding that his act of tossing

a gun over a fence did not constitute displaying, brandishing, indicating possession of, or

using the weapon. Myrick at ¶ 86. This is the proper disposition in Thaler’s case.

       {¶ 20} In finding the three-year firearm specifications proven, the trial court

determined that Thaler (1) had a firearm on or about his person or under his control while

committing his offenses and (2) that he displayed, brandished, indicated possession of,

or used the weapon. We have found legally insufficient evidence to prove the second

part. The surveillance video establishes beyond a reasonable doubt, however, that Thaler

did have a firearm on or about his person or under his control inside the restaurant.

Therefore, we see no error in the trial court’s first determination, which supports a
                                                                                         -10-


conviction on the lesser, one-year firearm specification under R.C. 2941.141(A).4 Myrick

at ¶ 86; see also State v. Holmes, 181 Ohio App.3d 397, 2009-Ohio-1241, 909 N.E.2d

163, ¶ 25 (8th Dist.) (“[I]n the absence of evidence that defendant did ‘display the weapon,

brandish it, indicate that [she possessed] it, or use it,’ there is insufficient evidence to

support the three-year firearm specification, and defendant must be resentenced only on

the one-year firearm specification under R.C. 2941.141.”). The first two assignments of

error are sustained.

       {¶ 21} In his third assignment of error, Thaler challenges the legal sufficiency of

the evidence to support his conviction for having a weapon while under disability.

Specifically, he contends the State presented legally insufficient evidence to prove that

the handgun at issue was operable or readily could have been made operable at the time

of the offense.

       {¶ 22} To obtain a conviction for having a weapon while under disability, the State

must prove beyond a reasonable doubt that the defendant knowingly acquired, carried,

or used a firearm. State v. Priest, 2d Dist. Montgomery No. 24225, 2011-Ohio-4694, ¶ 41.

Here the surveillance video establishes that Thaler carried the handgun around inside the

restaurant. His “operability” argument goes to whether the handgun qualified as a


4 To impose a one-year mandatory prison term on an offender for a firearm specification,
the indictment must specify “that the offender had a firearm on or about the offender’s
person or under the offender’s control while committing the offense.” R.C. 2941.141(A).
Here the indictment included this language, while including additional language that
Thaler “displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or used it to facilitate the offense,” as required for the three-year
specification in R.C. 2941.145(A). Because the indictment included the language required
for a one-year firearm specification, the trial court made the finding required for a one-
year specification, and the evidence supports that finding, we see no reason why we
cannot remand for sentencing on a one-year firearm specification, which is analogous to
a “lesser included” offense.
                                                                                              -11-


“firearm.” Under R.C. 2923.11(B)(1), a “firearm” includes a gun that is operable or that

readily can be made operable. “Thus, under R.C. 2923.11, for an individual to be found

guilty of a firearm disability charge or firearm specification, the state must prove beyond

a reasonable doubt that the firearm was operable or could readily have been rendered

operable at the time of the offense.” Id. at ¶ 51. Operability may be inferred from all of the

relevant facts and circumstances. Id. at ¶ 52-53; see also R.C. 2923.11(B)(2) (“When

determining whether a firearm is capable of expelling or propelling one or more projectiles

by the action of an explosive or combustible propellant, the trier of fact may rely upon

circumstantial evidence, including, but not limited to, the representations and actions of

the individual exercising control over the firearm.”).

       {¶ 23} Here the record contains ample evidence to support a finding that the gun

Thaler had in the restaurant was operable. A.D. testified that she had kept the gun in her

restaurant “for safety.” (Tr. at 50.) She stated that Thaler took the gun from the restaurant

and started carrying it “[a]ll the time.” (Id. at 51-52.) A.D. recalled Thaler firing the gun into

the air during a Fourth of July celebration. (Id.) Thaler subsequently carried the same gun

in the restaurant when he vandalized the office computer. (Id. at 89-90.) In our view, these

facts collectively support an inference, beyond a reasonable doubt, that the gun Thaler

had in the restaurant with him on August 17, 2017 was operable, making it a “firearm” for

purposes of his conviction for having a weapon while under disability. The record certainly

contains legally sufficient evidence to support such a finding.

       {¶ 24} In opposition to our conclusion, Thaler cites testimony from A.D. about an

incident that had occurred a week earlier on August 10, 2017. That was the night she

picked Thaler up after a bar fight and drove him to his mother’s house. The following
                                                                                       -12-


exchange occurred between the prosecutor and A.D. when she testified about that night

at trial:

               Q. Did you go pick him up?

               A. I did.

               Q. And where did you take him?

               A. To his mom’s house. And—to his mom’s house. And I knew that

        they didn’t want him there. She wouldn’t let him in, I think, because his

        brother that he had gotten in a fight with was there. And he was angry

        because he wanted his gun and she gave the gun to him but had taken

        parts out of it or something so that he couldn’t shoot.

               Q. When you say “the gun,” is that the gun that you testified about

        earlier?

               A. Yes.

               [DEFENSE COUNSEL]: I am going to object on the basis for her—

        did she say she saw—she heard—I don’t know how she would know.

               THE COURT: Sustained.

(Tr. at 61-62.)

        {¶ 25} Thaler contends this testimony about his mother removing parts form “the

gun” on August 10, 2017 negates any reasonable inference that the weapon was

operable a week later on August 17, 2017 when he vandalized the restaurant. We

disagree for at least three reasons. First, we read the foregoing exchange as including an

objection to A.D.’s testimony about Thaler’s mother removing parts from the gun and the

trial court sustaining the objection. If so, then that testimony was not admitted, and the
                                                                                           -13-


record contains no evidence that the gun Thaler had in the restaurant was inoperable.

Second, Thaler argues that his attorney’s objection challenged A.D.’s testimony

identifying which gun his mother had modified, not her testimony about his mother

modifying a gun. But if this is true, then the testimony about Thaler’s mother removing

parts from a non-specified gun is irrelevant. If the trial court sustained an objection to A.D.

identifying which gun Thaler’s mother had modified, then the record contains no evidence

to support a finding that the gun she modified was the gun in the restaurant. Third, even

if we assume, arguendo, that on August 10, 2017 Thaler’s mother modified the gun he

carried in the restaurant on August 17, 2017, he had one week to get the parts back from

her and to make the gun operable again. A trier of fact reasonably might infer operability

from the fact that Thaler had the gun with him in the restaurant when he committed an

act of vandalism. Any argument to the contrary would go to the weight of the evidence,

not its legal sufficiency (which is the basis for Thaler’s assignment of error).

       {¶ 26} Viewing the evidence in a light most favorable to the prosecution, we believe

a rational trier of fact could find beyond a reasonable doubt that the handgun Thaler had

with him in the restaurant on August 17, 2017 was operable. The third assignment of error

is overruled.

       {¶ 27} In his fourth assignment of error, Thaler challenges the consecutive

sentences he received. His entire argument is as follows:

                Mr. Thaler argues that since the firearms specifications and the

       Having Weapons Under Disability charges were not proven, the court erred

       when it premised, in part, its justification for consecutive sentences upon

       the conviction of Having Weapons Under Disability and the firearm
                                                                                         -14-


       specifications. From that, Mr. Thaler argues that, in the event the conviction

       for Having Weapons Under Disability, and the firearms specification[s] are

       reversed, the Trial Court, during resentencing, must exclude any

       consideration of those offenses when determining the length of any

       sentences for any other convictions.

(Appellant’s brief at 14-15.)

       {¶ 28} Upon review, we are unpersuaded by Thaler’s argument. In our analysis

above, the only error we found involved the imposition of a three-year prison term for the

firearm specifications. We concluded that the lesser, one-year specification was

applicable. This modification has no impact on the other aspects of Thaler’s sentence,

which involved convictions for having a weapon while under disability, vandalism, and

domestic violence.

       {¶ 29} At sentencing, the trial court started by noting “that Mr. Thaler does have an

extensive criminal history, these constituting his seventh and eighth felony convictions,

and with the domestic violence charge being, one, offense of violence with there being

other domestic violence felony charges on his history.” (Tr. at 204). The trial court then

imposed concurrent 12-month prison terms for having a weapon while under disability

and vandalism in Montgomery C.P. No. 2018-CR-2522. The trial court imposed a three-

year prison term for domestic violence in Montgomery C.P. No. 2017-CR-3796. It ordered

the sentences in the two cases to be served consecutively, resulting in an aggregate four-

year sentence on the substantive offenses. (The trial court also merged the two firearm

specifications and imposed a three-year sentence, which by law was required to be

served consecutively.)
                                                                                        -15-


       {¶ 30} In support of requiring the 12-month sentence in Montgomery C.P. No.

2018-CR-2522 and the three-year sentence in Montgomery C.P. No. 2017-CR-3796 to

be served consecutively, the trial court made the following findings under R.C.

2929.14(C)(4):

              * * * [R]unning the consecutive sentences as between the two cases,

       the Court does make the finding that the consecutive service is necessary

       to protect the public from future crime or to punish the offender. The

       consecutive sentences are not disproportionate to the seriousness of the

       offender’s conduct and to the danger that he poses to the public.

              The offender committed one or more of the multiple offenses while

       he was awaiting trial or sentencing or was under a sanction imposed

       pursuant to Revised Code 2929.16, 17, 18 or was on PRC.

              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

       and the offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by Mr. Thaler.

(Tr. at 205-206.)

       {¶ 31} None of the foregoing findings are impacted by our determination that

Thaler is subject to a one-year sentence for the firearm specifications rather than a three-
                                                                                        -16-


year sentence. Nothing in our analysis of the firearm-specification issue affects the trial

court’s determination that (partially) consecutive sentences are warranted for the

substantive offenses in the two cases. The fourth assignment of error is overruled.

       {¶ 32} Having sustained Thaler’s first two assignments of error challenging his

three-year sentence for the merged firearm specifications, the three-year firearm

specification convictions are reversed. The matter is remanded for the trial court to

impose a one-year firearm-specification sentence, as provided in R.C. 2941.141(A). See

Myrick at ¶ 88. In all other respects, the trial court’s judgment is affirmed.

                                      .............



FROELICH, J. and WELBAUM, J., concur.


Copies sent to:

Mathias H. Heck Jr.
Andrew T. French
Christopher C. Green
Hon. Mary L. Wiseman
