[Cite as State v. Brown, 2013-Ohio-854.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-12-33

        v.

JEFFREY E. BROWN,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2011 0479

                                      Judgment Affirmed

                            Date of Decision: March 11, 2013




APPEARANCES:

        Michael J. Short for Appellant

        Jana E. Emerick for Appellee
Case No. 1-12-33


ROGERS, J.

      {¶1} Defendant-Appellant, Jeffery Brown, appeals the judgment of the

Court of Common Pleas of Allen County convicting him of grand theft and having

weapons while under disability. On appeal, Brown contends that the trial court

erred when it ordered his sentences to be served consecutively to each other and to

his sentence imposed in a separate criminal matter arising in Putnam County.

Based on the following, we affirm the trial court’s judgment.

                             Putnam County Offense

      {¶2} Sometime between late October and early November 2011, a

residence in Putnam County was burglarized. Among the items stolen from the

residence was a Remington 870 shotgun. During the time of the burglary, Brown

lived in Allen County at a residence owned by Danny Crichfield. Sometime after

the burglary, Brown was arrested for an unrelated offense. After Brown’s arrest,

Crichfield discovered a Remington Model 870 shotgun in his residence, which did

not belong to him, and turned it over to the Allen County Sheriff’s Office. The

shotgun was eventually identified as the firearm stolen from the residence in

Putnam County.

      {¶3} On January 31, 2012, the Putnam County Grand Jury returned an

indictment charging Brown with burglary in violation of R.C. 2911.12(A)(3), a




                                        -2-
Case No. 1-12-33


felony of the third degree.1 On April 26, 2012, Brown entered a plea of guilty to

the sole count. Thereafter, the Putnam County Court of Common Pleas sentenced

Brown to a two-year prison term. See Change of Plea Hearing Tr., p. 20.

                                        Allen County Offense

           {¶4} Around the time Crichfield discovered the Remington Model 870

shotgun in his residence, he learned that his shotgun, a Remington Model 11, was

missing. While in custody for an unrelated offense, Brown admitted that he took

Crichfield’s shotgun without Crichfield’s knowledge or permission, and sold it to

a pawn broker. Brown further acknowledged that the Remington Model 870

shotgun that Crichfield found in his residence was obtained during a burglary

committed in Putnam County, and that he was involved in the burglary.

           {¶5} On December 15, 2011, the Allen County Grand Jury returned an

indictment against Brown charging him as follows: Count One, grand theft of a

firearm in violation of R.C. 2913.02(A)(1), (B)(4), a felony of the third degree;

Count Two, receiving stolen property in violation of R.C. 2913.51(A), a felony of

the fourth degree; Count Three, having weapons while under disability in violation

of R.C. 2923.13(A)(3), a felony of the third degree; and, Count Four, having

weapons while under disability in violation of R.C. 2923.13(A)(3), a felony of the

third degree. Brown entered pleas of not guilty to all counts in the indictment.



1
    The case number of the criminal matter in Putnam County is 2012 CR 12.

                                                   -3-
Case No. 1-12-33


        {¶6} On June 1, 2012, the matter proceeded to a change of plea hearing.

Pursuant to a written plea agreement, Brown entered pleas of guilty to Counts One

and Four, which the trial court accepted, and the State dismissed the remaining

counts.

        {¶7} On July 12, 2012, the matter proceeded to sentencing.                              Prior to

sentencing, the trial court addressed the issue of merger. Brown argued that Count

Four and the offense in Putnam County were allied offenses. Specifically, Brown

asserted that he committed the offense associated with Count Four during the

burglary in Putnam County. As such, Brown argued that Count Four and the

offense in Putnam County should be merged for purposes of sentencing. The trial

court disagreed, and did not merge the offenses. The trial court proceeded to

sentence Brown to 18 months in prison under Count One, and 12 months in prison

under Count Four. The trial court further ordered the sentences to be served

consecutively to each other and consecutively to the sentence imposed in Putnam

County.2

        {¶8} Brown timely appealed the trial court’s judgment, presenting the

following assignment of error for our review.




2
 In its judgment entry of sentencing, the trial court ordered that the sentences imposed for Counts One and
Four be served consecutively “TO THE PUTNAM COUNTY CASE WHERE INCARCERATION WAS
IMPOSED[,]” without specifying any case number or other identifying information. Judgment Entry, p. 3.

                                                   -4-
Case No. 1-12-33


                           Assignment of Error No. I

       THE TRIAL COURT ERRED WHEN IT SENTENCED THE
       DEFENDANT ON THE WEAPONS UNDER DISABILITY
       AND GRAND THEFT OF A FIREARM CHARGES AS THE
       CONVICTIONS AND SENTENCES WERE PRECLUDED BY
       DOUBLE JEOPARDY AND MERGER.

       {¶9} In his sole assignment of error, Brown contends that the State violated

his constitutional right against double jeopardy by subjecting him to successive

prosecutions for allied offenses of similar import. Specifically, Brown maintains

that his burglary conviction in Putnam County and the offenses associated with

Counts One and Four are allied offenses of similar import. As such, Brown argues

that the trial court erred when it ordered him to serve the sentences imposed for

Counts One and Four consecutively to each other and consecutively to the

sentence imposed in Putnam County. We disagree.

       {¶10} “The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Section 10, Article I of the Ohio Constitution protect the

accused from being put in jeopardy twice for the same offense. These provisions

protect an individual against successive punishments as well as successive

prosecutions for the same offense.” State v. Moore, 110 Ohio App.3d 649, 652

(1st Dist. 1996).

       {¶11} To determine whether Brown’s right against double jeopardy was

violated, we must examine his convictions in this matter and his conviction in


                                        -5-
Case No. 1-12-33


Putnam County. A situation similar to the one here occurred in State v. Clelland,

83 Ohio App.3d 474 (4th Dist.1992).            In Clelland, the court explained how

appellate courts should analyze successive prosecutions in separate jurisdictions

for potential violations of an individual’s right against double jeopardy as follows:

       When an offender, as part of a course of criminal conduct, commits
       offenses in different jurisdictions, he may be tried for all of those
       offenses in any jurisdiction in which one of those offenses occurred.
       R.C. 2901.12(H). In [State v. Urvan, 4 Ohio App.3d 151 (8th Dist.
       1982)], the Eighth District Court of Appeals held that once one
       jurisdiction takes action first, it preempts venue and jurisdiction for
       the whole matter, and jeopardy must attach as a result of the activity
       of the first actor. See, also, State v. DeLong (1990), 70 Ohio App.3d
       402, 591 N.E.2d 345. In reaching their holdings, the Urvan (theft
       and receiving stolen property) and DeLong (robbery and receiving
       stolen property) courts emphasized that the offenses [charged in
       different jurisdictions] were allied offenses of similar import
       pursuant to R.C. 2941.25. See, e.g., DeLong, supra, 70 Ohio App.3d
       at 405, 591 N.E.2d at 346, where the Tenth District Court of Appeals
       stated that “[a]ny possible question stemming from one jurisdiction’s
       failure to include another available charge in its prosecution is
       resolved by R.C. 2941.25, which requires an election between
       convictions for allied offenses when the state chooses to pursue
       both.” Pursuant to Urvan and DeLong, we must consider whether
       the offenses here are allied offenses of similar import pursuant to
       R.C. 2941.25. Clelland at 483-84. Accord State v. Barnett, 124
       Ohio App.3d 746 (2d Dist. 1998).

       {¶12} Accordingly, we must determine whether Brown’s offenses of grand

theft of a firearm, having weapons while under disability, and burglary are allied

offenses of similar import. State v. Morgan, 4th Dist. No. 12CA3305, 2012-Ohio-

3936, ¶ 10. If these offenses are allied offenses of similar import, Brown’s

convictions in this matter, and consequently the sentences imposed, violated his

                                         -6-
Case No. 1-12-33


right against double jeopardy provided for in the United States and Ohio

Constitutions. Id.

       {¶13} Ohio’s statute concerning multiple counts, R.C. 2941.25, provides as

follows:

       (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.

This statutory language “codifie[s] the judicial doctrine of merger” and

“prohibit[s] the ‘cumulative punishment of a defendant for the same criminal act

where his conduct can be construed to constitute two statutory offenses, when, in

substance and effect, only one offense has been committed.’” State v. Ware, 63

Ohio St.2d 84, 86 (1980), quoting State v. Roberts, 62 Ohio St.2d 170, 172-173

(1980).

       {¶14} The Ohio Supreme has articulated the following test to determine

whether offenses are allied:

       In determining whether offenses are allied offenses of similar import
       under R.C. 2941.25(A), the [first] question is whether it is possible
       to commit one offense and commit the other offense with the same
       conduct, not whether it is possible to commit one without

                                        -7-
Case No. 1-12-33


      committing the other. * * * If the offenses correspond to such a
      degree that the conduct of the defendant constituting commission of
      one offense constitutes commission of the other, then the offenses
      are of similar import.

      If the multiple offenses can be committed by the same conduct, then
      the court must determine whether the offenses were committed by
      the same conduct, i.e., ‘a single act committed with a single state of
      mind.’

      If the answer to both questions is yes, then the offenses are allied
      offenses of similar import and will be merged.

      Conversely, if the court determines that the commission of one
      offense will never result in the commission of the other, or if the
      offenses are committed separately, or if the defendant has separate
      animus for each offense, then, according to R.C. 2941.25(B), the
      offenses will not merge. (Emphasis sic; Citations omitted.) State v.
      Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 48-51.

An appellate court reviews a trial court’s determination concerning merger de

novo. State v. Williams, __ Ohio St.3d __, 2012-Ohio-5699, ¶ 28.

      {¶15} Before we address whether the offenses at issue are allied, we must

resolve some confusion pertaining to the facts associated with Counts One and

Four. On appeal, Brown’s argument suggests that Counts One and Four arise

from the same criminal event, the burglary in Putnam County.          The record,

however, reveals otherwise. Count One stems from the theft of a firearm from

Crichfield’s residence in Allen County. See Sentencing Hearing Tr., p. 22-24.

Count Four, on the other hand, stems from Brown’s possession of a firearm that

was stolen during the burglary in Putnam County. Id. at p. 5. Having resolved


                                       -8-
Case No. 1-12-33


this confusion, we will determine whether the trial court erred when it determined

that the burglary in Putnam County and Counts One and Four were not allied

offenses of similar import.

                       Count One – Grand Theft of a Firearm

       {¶16} Upon review, we find that Count One does not merge with Count

Four or the burglary in Putnam County. The record reveals that the firearm

associated with Count Four was different from the firearm associated with Count

One, and that the theft associated with Count One occurred separately from the

burglary in Putnam County. As such, we find that the burglary in Putnam County

and the offense associated with Count Four were committed separately and with

separate animus from the offense associated with Count One. Accordingly, the

trial court did not err when it failed to merge the sentence imposed for Count One

into the sentences imposed for Count Four or the burglary in Putnam County.

              Count Four – Having Weapons While Under Disability

       {¶17} Having determined that Counts One and Four are not allied offenses,

we are left to determine whether Count Four and the burglary in Putnam County

are allied offenses.

       {¶18} Upon review, we find that Count Four and the burglary in Putnam

County are not allied offenses. There is no dispute that the firearm associated with

Count Four was obtained during the Putnam County burglary. However, the


                                        -9-
Case No. 1-12-33


record contains little detail about the burglary itself. Despite the lack of a record,

we still find that Count Four and the burglary in Putnam County were not allied

offenses.   In particular, Brown’s continued possession of the firearm after

committing the burglary demonstrates a separate animus to commit the offense of

having weapons while under disability. See State v. Logan, 60 Ohio St.2d 126

(1979) (prolonged unlawful restraint of the victim can demonstrate separate

animus for an underlying offense, such as robbery, and kidnapping). Given the

foregoing, the trial court did not err when it failed to merge the sentence imposed

for Count Four into the sentence imposed for the burglary in Putnam County.

       {¶19} Having determined that none of the offenses at issue are allied, we

find that Brown’s right against double jeopardy was not violated when the trial

court ordered him to serve the sentences imposed for Counts One and Four

consecutively to each other and consecutively to the sentence imposed in Putnam

County.

       {¶20} Accordingly, we overrule Brown’s sole assignment of error.

       {¶21} Having found no error prejudicial to Brown herein, in the particulars

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

                                                                  Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr


                                        -10-
