[Cite as State v. Stuward, 2017-Ohio-2918.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-16-29

        v.

PATRICIA STUWARD,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 16-CR-0019

                                      Judgment Affirmed

                              Date of Decision: May 22, 2017



APPEARANCES:

        James A. Davey for Appellant

        Stephanie J. Reed for Appellee
Case No. 13-16-29


ZIMMERMAN, J.

       {¶1} Defendant-Appellant Patricia Stuward (“Stuward”) appeals her

September 14, 2016 convictions from the Seneca Court of Common Pleas of one

count of theft from an elderly person, one count of attempted theft from an elderly

person, and one count of telecommunications fraud, all felonies of the third degree.

Stuward alleges that the trial court erred by failing to merge the telecommunications

fraud conviction with her theft from an elderly person and attempted theft from an

elderly person convictions. For the reasons that follow, we affirm.

                         Facts and Statement of the Case

       {¶2} On November 24th, 2015, Ms. Veda Joyce Kidd (“Ms. Kidd”), then

74 years old, began communicating with a person whom Ms. Kidd believed was

General Gary Patten (“General Patten”) via Facebook Messenger. During the

course of their exchanges, approximately two to three times a day, Ms. Kidd was

led to believe that General Patten was in love with her and they were going to get

married. General Patten also told Ms. Kidd that he was going to receive $800,000

from the United Nations because he cleared a drug ring in Syria. General Patten

informed Ms. Kidd that he would send her the money if she provided him with her

full name, address, phone number, and date of birth. General Patten also informed

Ms. Kidd that the money he was to receive would be sent to her home.




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       {¶3} In January of 2016, Ms. Kidd was contacted by Stuward, identifying

herself as “Fatima,” who indicated that she represented the agent assigned to deliver

General Patten’s “two packages of money” to Ms. Kidd. Stuward informed Ms.

Kidd that she was going to have the packages delivered to Ms. Kidd’s home, but

needed $16,000 to “clear the packages at the port.” Stuward was in phone contact

with Ms. Kidd daily and arranged to visit Ms. Kidd’s home to personally pick up

the $16,000 port fee. Based on Stuward’s demands, Ms. Kidd cashed in her

annuities to pay the requested “fees.”

       {¶4} On January 8, 2016, Stuward, still under the guise of Fatima, went to

Ms. Kidd’s home along with Sampson Cojolo (“Cojolo”) to pick up Ms. Kidd’s

money. Ms. Kidd delivered the $16,000 to Stuward and Cojolo as directed.

Thereafter, Stuward and Cojolo told Ms. Kidd they were leaving to pick up her

money at the port. Approximately three hours later Stuward and Cojolo returned to

Ms. Kidd’s home with a safe containing paper that would turn into money when

sprayed with a special solution. However, Stuward and Cojolo did not have enough

solution to process all of the paper in the safe and requested that Ms. Kidd give them

more money to obtain more solution.

       {¶5} Ms. Kidd agreed to pay Stuward and Cojolo $45,000 for the additional

solution and applied for a home equity loan. However, after applying for the loan

Ms. Kidd became suspicious of the request and contacted the police.


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       {¶6} The Fostoria Police Department advised Ms. Kidd to stay in contact

with Stuward. Stuward continued to phone Ms. Kidd regularly to determine if she

had the extra money. Stuward eventually requested Ms. Kidd to obtain more than

$45,000. In response, Ms. Kidd informed Stuward that she could get $53,000 by

January 22, 2016. On January 21, 2016 Stuward contacted Ms. Kidd to confirm she

would pick up the $53,000 the following day. After more phone calls by Stuward

to Ms. Kidd, Stuward and Cojolo went to Ms. Kidd’s residence on January 22, 2016,

where they were arrested by law enforcement upon their arrival.

                                 Procedural History

       {¶7} On February 17, 2016 Stuward was indicted on three different counts

by the Seneca County Grand Jury: Count One, Theft from an Elderly Person, in

violation of R.C. 2913.02(A)(3), (B)(3), a felony of the third degree; Count Two,

Attempted Theft from an Elderly Person, in violation of R.C. 2923.02(A), (E)(1)

and R.C. 2913.02(A)(3),(B)(3), a felony of the third degree; and Count Three,

Telecommunications Fraud, in violation of R.C. 2913.05(A),(C), a felony of the

third degree. The case proceeded to a jury trial on September 13, 2016 and on

September 14, 2016, Stuward was found guilty of all three charges. On October 25,

2016 the trial court sentenced Stuward to eighteen (18) months in prison on each of

the three counts, ordering all counts to be served consecutive to each other for a total




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term of imprisonment of fifty-four (54) months. Stuward now appeals, and presents

one assignment of error for our review:

                      ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED WHEN IT SENTENCED
      APPELLANT TO CONSECUTIVE SENTENCES ON EACH OF
      THE THREE COUNTS OF WHICH SHE WAS FOUND
      GUILTY BECAUSE COUNT THREE WAS AN ALLIED
      OFFENSE OF SIMILAR IMPORT THAT MERGED WITH
      COUNTS ONE AND TWO.

      {¶8} On appeal, Stuward challenges the trial court’s imposition of eighteen

(18) months imprisonment for Count Three, alleging that Count Three should have

merged with Counts One and Two as allied offenses of similar import. Specifically,

Stuward contends that the phone communication with Ms. Kidd was an inseparable

part of the theft offenses because without phone communication no arrangements

would have been made for the commission of the theft offenses. We disagree.

                               Standard of Review

      {¶9} “‘A defendant bears the burden of proving that the offenses for which

he has been convicted and sentenced constitute allied offenses of similar import.’”

State v. Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 7, quoting

State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 18,

citing State v. Luong, 12th Dist. Butler No. CA2011-06-110, 2012-Ohio-4520, ¶ 46.

Additionally, a reviewing court may look to the information contained in the record

to make its allied offense determination. Id. An appellate court then reviews de

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novo the question of whether offenses are allied offenses of similar import. State v.

Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 93 (3rd Dist.), citing State v. Stall, 3rd

Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3rd Dist.

Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36.

                  R.C. 2941.25, Allied Offenses of Similar Import

       Ohio’s multiple-count statute, codified in R.C. 2941.25, 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.

       {¶10} In State v. Ruff, the Supreme Court promulgated the following three-

part test for determining whether offenses merged: “[u]nder R.C. 2941.25(B), a

defendant whose conduct supports multiple offenses may be convicted of all the

offenses if any one of the following is true: (1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with separate

animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (2015),




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paragraph three of the syllabus. An affirmative answer to any of the preceding

questions will permit separate convictions. Id. at ¶ 31.

                                       Analysis

       {¶11} Stuward was convicted of Theft from an Elderly Person, in violation

of R.C. 2913.02(A)(3), (B)(3), which provides, in part:

       No person, with purpose to deprive the owner of property or services,
       shall knowingly obtain or exert control over either the property or
       services in any of the following ways: by deception. * * * [I]f the
       victim of the offense is an elderly person, * * * a violation of this
       section is theft from a person in a protected class * * *. If the value of
       the property or services stolen is seven thousand five hundred dollars
       or more and is less than thirty-seven thousand five hundred dollars,
       theft from a person in a protected class is a felony of the third degree.

R.C. 2913.02(A)(3),(B)(3). Stuward was also convicted of Attempted Theft from

an Elderly Person, in violation of R.C. 2923.02(A),(E)(1), and R.C.

2913.02(A)(3),(B)(3), which provides, in part:

       No person, purposely or knowingly, and when purpose or knowledge
       is sufficient culpability for the commission of an offense, shall engage
       in conduct that, if successful, would constitute or result in the offense.
       Whoever violates this section is guilty of an attempt to commit an
       offense. No person, with purpose to deprive the owner of property or
       services, shall knowingly obtain or exert control over either the
       property or services in any of the following ways: by deception. * *
       * [I]f the victim of the offense is an elderly person, * * * a violation
       of this section is theft from a person in a protected class * * *. If the
       value of the property or services stolen is seven thousand five hundred
       dollars or more and is less than thirty-seven thousand five hundred
       dollars, theft from a person in a protected class is a felony of the third
       degree.

R.C. 2923.02(A),(E)(1) and R.C. 2913.02(A)(3),(B)(3).

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       {¶12} Stuward does not allege that these two convictions should merge,

because each count refers to a different date and a different theft attempt. However,

Stuward contends that her conviction for Telecommunications Fraud should merge

with both the theft and the attempted theft charges.

       {¶13} Stuward was convicted of Telecommunications Fraud, in violation of

R.C. 2913.05(A),(C). That statute provides, in part: 

       No person, having devised a scheme to defraud, shall knowingly
       disseminate, transmit, or cause to be disseminated or transmitted by
       means of a wire, radio, satellite, telecommunication,
       telecommunications device, or telecommunications service any
       writing, data, sign, signal, picture, sound, or image with purpose to
       execute or otherwise further the scheme to defraud. Whoever violates
       this section is guilty of telecommunications fraud. * * * If the value
       of the benefit obtained by the offender or of the detriment to the victim
       of the fraud is seven thousand five hundred dollars or more but less
       than one hundred fifty thousand dollars, telecommunications fraud is
       a felony of the third degree.

R.C. 2913.05(A),(C). Stuward contends that this conviction should have merged

with her two other convictions, because she could not have committed the theft and

attempted theft without violating the telecommunications fraud statute.

       {¶14} Because an affirmative answer to any of the Ruff factors will permit

separate convictions, we choose to address the second Ruff question first.

       {¶15} In regards to the second question posed by the Ruff test, whether the

conduct shows that the offenses were committed separately, we answer this part of

the Ruff test in the affirmative. The evidence demonstrates that Stuward contacted


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Ms. Kidd many times by phone prior to the January 8, 2016 theft and many more

times before the foiled theft on January 22, 2016.

       {¶16} While Stuward’s constant telephone contact with Ms. Kidd furthered

her overall scheme to scam Ms. Kidd, we find Stuward’s act of using the telephone

was separate from each theft count. Specifically, and as to the second theft count,

Stuward did not use the telephone to put that scheme into motion; such was done by

Stuward in person to Ms. Kidd, when she asked Ms. Kidd for $45,000 to obtain

more solution to change the blank paper in to money. Hence, it is clear that

Stuward’s use of the phone was a necessary and constant diversion to keep Ms. Kidd

from becoming overly suspicious. Consistent with the decision by our sister

appellate court in State v. Russell, the telecommunications fraud count does not

merge with either the theft or the attempted theft counts herein. State v. Russell, 6th

Dist. Lucas Nos. L-15-1002, L-15-1003, 2015-Ohio-2802, ¶ 16.

       {¶17} With an affirmative answer to the second Ruff factor, we decline to

address the first and third Ruff factors at this time.

       {¶18} Accordingly, Stuward’s sole assignment of error is hereby overruled.

       {¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J, concur.
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