[Cite as State v. Hart, 2020-Ohio-1640.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
ANTHONY L. HART, II,                         :       Case No. 2019 CA 0086
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2016 CR 0691



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    April 21, 2020



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GARY BISHOP                                          DOMINIC L. MANGO
Prosecuting Attorney                                 Mango Law Office
Richland County, Ohio                                43 S. Franklin Street
                                                     Delaware, Ohio 43015
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0086                                                  2


Baldwin, J.

        {¶1}   Defendant-appellant Anthony L. Hart, II appeals his conviction and

sentence from the Richland County Court of Common Pleas. Plaintiff-appellee is the State

of Ohio.

                        STATEMENT OF THE FACTS AND CASE

        {¶2}   On December 9, 2016, the Richland County Grand Jury indicted appellant

on one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first

degree, one count of robbery in violation of R.C. 2911.02(A)(1), a felony of the second

degree, two counts of carrying a concealed weapon in violation of R.C. 2923.12(A)(2),

felonies of the fourth degree, and one count of having weapons while under disability in

violation of R.C. 2923.13(A)(2), a felony of the third degree. The indictment also contained

two firearm specifications. At his arraignment on July 12, 2018, appellant entered a plea

of not guilty to the charges.

        {¶3}   Subsequently, a jury trial commenced on August 19, 2019. At the trial, Kara

Ward testified that she had been employed at the Circle K convenience store on Lexington

Avenue in Richland County and was working on October 31, 2016. She testified that she

was cleaning the store a little after 9:00 p.m. and another woman named Tammie Marshall

was running the register when a man with a hood came inside. They asked him to remove

his hood because it was protocol and the man complied. Ward testified that when she

looked up, she saw the man had his gun pulled on Tammie and said ”Don’t call anybody.

The gun is cocked.” Trial Transcript at 60. The man took all of the available money which

was $150.00 in cash. A surveillance video of the incident, which was taken from the store,

was played at trial. Ward identified appellant at trial as the man from the video. She testified
Richland County, Case No. 2019 CA 0086                                                   3


that she saw appellant’s face during the incident and that the gun was never pointed at

her.

       {¶4}   Tammie Marshall testified that she was working the 2:00 to 10:00 p.m. shift

on October 31, 2016 and that appellant approached the counter where she was standing

and asked for cigarettes. When she turned around to ask appellant what kind of cigarettes

he wanted, he had a gun in his right hand and demanded money. Appellant told her that

the gun was cocked and to not try anything. Marshall testified that she was not going to

find out if the gun was loaded. She testified that approximately $40.00 was in her register

drawer. Marshall testified that appellant was a few feet away from her and that she could

see him. After appellant left, Kara Ward rushed to the front door and locked it.

       {¶5}   The surveillance footage of the robbery was circulated among local law

enforcement and one of them was able to identify appellant. Both Marshall and Ward

picked appellant out of photo lineups.

       {¶6}   Prior to trial, appellant had mailed an ex parte letter to the trial court, stating

that he wished to plead guilty on the condition that he receive a sentence of three years

concurrent time that would amount to only six months of additional prison time on top of

the sentence that he was serving at the time. The letter was signed by appellant and

included his social security number, date of birth, case number and trial date. It was

admitted over defense counsel’s’ objection.

       {¶7}   The jury, on August 21, 2019, found appellant guilty of all counts and

specifications except Count Three (carrying a concealed weapon). Defense counsel

argued that the aggravated robbery and robbery offenses were allied offenses of similar
Richland County, Case No. 2019 CA 0086                                               4


importuned R.C. 2941.25 and should merge. However, the trial court declined to merge

the offenses.

       {¶8}     The trial court, pursuant to a Sentencing Entry filed on August 26, 2019,

sentenced appellant to an aggregate prison sentence of 27 years. Appellant also was

ordered to pay restitution in the amount of $150.00.

       {¶9}     Appellant now raises the following assignments of error on appeal:

       {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR AND VIOLATED APPELLANT’S RIGHTS UNDER THE DUE

PROCESS AND PRIVILEGE AGAINST SELF-INCRIMINATION CLAUSES OF THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND OHIO CONSTITUTION ARTICLE I, SECTION 10 WHEN IT ADMITTED INTO

EVIDENCE THE EX PARTE LETTER TO THE COURT PURPORTEDLY WRITTEN BY

APPELLANT AND MAILED FROM THE RICHLAND COUNTY JAIL.”

       {¶11} “II. THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT FAILED TO

MERGE THE AGGRAVATED ROBBERY AND ROBBERY COUNTS WHICH ARE

ALLIED OFFENSE OF SIMILAR IMPORT AND THEREBY VIOLATED APPELLANT’S

RIGHTS    UNDER       THE    DOUBLE     JEOPARDY       DUE    PROCESS      AND       EQUAL

PROTECTION CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS AND

REVISED CODE SECTION 2941.25.”

       {¶12} “III. THE RECORD DOES NOT SUPPORT THAT THE TRIAL COURT

PROPERLY CONSIDERED R.C. [SECTION] 2929.11 AND R.C. [SECTION] 2929.12

BEFORE IMPOSING CONSECUTIVE AMD MAXIMUM SENTENCES AND REVEALS

THAT     THE     TRIAL    COURT      FAILED    TO      ENGAGE     IN   A   MEANINGFUL
Richland County, Case No. 2019 CA 0086                                                 5


PROPORTIONALITY ANALYSIS PRIOR TO IMPOSING 27 YEARS FOR NONVIOLENT,

FELONY      CONVICTIONS;        THUS,      THE     SENTENCE        WAS     CLEARLY         AND

CONVINCINGLY CONTRARY TO OHIO SENTENCING LAW.”

                                               I

        {¶13} Appellant, in his first assignment of error, argues that the trial court erred in

admitting into evidence, over objection, appellant’s ex parte letter. In the letter, appellant

said that he wished to plead guilty on the condition that he receive a sentence of three

years concurrent time that would amount to only six months of additional prison time on

top of the sentence that he was serving at the time.

        {¶14} Appellant argues, in part, that the letter was improperly authenticated and

therefore inadmissible. “[A] trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271,

569 N.E.2d 1056 (1991). An abuse of discretion is more than a mere error in judgment; it

is a “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio

State Med. Bd. 66 Ohio St.3d 619, 621, 1993-Ohio-122, 614 N.E.2d 748. When applying

an abuse of discretion standard, an appellate court may not substitute its judgment for that

of the trial court. Id. Absent an abuse of discretion resulting in material prejudice to the

defendant, a reviewing court should be reluctant to interfere with a trial court's decision in

this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

        {¶15} Generally, “[a] condition precedent to the admissibility of documents is that

documents must be authenticated or identified.” (Citations omitted.) State v. Wynn, 2nd

Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 74, citing In Re Adoption of H.M.F., 2nd
Richland County, Case No. 2019 CA 0086                                                      6


Dist. Montgomery No. 22805, 2009–Ohio–1947, ¶ 26. Authentication or identification “is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Evid.R. 901(A). The purpose behind authentication is to connect the

particular piece of evidence sought to be introduced to the facts in the case by giving some

indication the evidence is relevant and reliable. State v. Brown, 151 Ohio App.3d 36, 2002-

Ohio-5207, 783 N.E.2d 539, ¶ 35 (7th Dist.). The ultimate decision on the weight to be

given to that piece of evidence is left to the trier of fact. Id. “ ‘[A] letter may be authenticated

by evidence of its distinctive contents such as facts contained in the missive that only the

writer may know.’ ” Id., 2002–Ohio–5207 at ¶ 39, citing State v. Chamberlain, 8th Dist.

Cuyahoga No. 58949, 1991 WL 144181, *4 (July 25, 1991).

        {¶16} In the case sub judice, the letter was signed using appellant’s name, social

security number, date of birth, case number and upcoming trial date. It was mailed from

the Richland County Jail. We find, therefore, that the letter was properly authenticated. As

noted by the trial court, there was enough in the letter to “at least meet the identification

requirements to lay a foundation.” Trial Transcript at 84.

        {¶17} Appellant also argues that the letter was not admissible under 46(F) which

states, in relevant part, that “Statements or admissions of the defendant made at a bail

proceeding shall not be received as substantive evidence in the trial of the case.” With

respect to Crim.R. 46(F), we note that this rule is immaterial to the circumstances at hand

since, as noted by appellee, appellant, in such letter, does not discuss his bond.

        {¶18} Appellant also raises Evid.R, 408 and Evid.R. 410.

        {¶19} However, as noted by the court in State v. Gaines, 193 Ohio App. 3d 260,

270, 2011-Ohio-1475, ¶ 39, 951 N.E.2d 814, 821–22:
Richland County, Case No. 2019 CA 0086                                               7


               We decline to apply Evid.R. 408 to a criminal case on the basis of

       State ex rel. Celebrezze v. Howard (1991), 77 Ohio App.3d 387, 602 N.E.2d

       665. As the Tenth Appellate District aptly stated, “[t]he language employed

       by Evid.R. 408 tends to support the conclusion that it is meant to exclude

       conduct or statements in the compromise of civil actions only. The **822

       rule speaks in terms of disputed claims as opposed to alleged crimes or

       offenses. * * * When Evid.R. 408 is read in conjunction with Evid.R. 410, it

       becomes more apparent that Evid.R. 408 is intended purely in regard to

       compromises in civil actions. Evid.R. 410 excludes statements made during

       plea negotiations in any subsequent civil or criminal action. Evid.R. 410

       expressly applies to both civil and criminal actions, whereas Evid.R. 408

       includes no such expansive language.

       {¶20} Evid.R. 410 is similarly inapplicable. Ohio courts have held that Evid.R. 410

only applies to plea negotiations and where no plea is entered, as in the case of a grant of

immunity, then the exclusionary provisions of Evid.R. 410 do not apply. See State v. Dancy

(Dec. 17, 1981), Cuyahoga App. No. 59336, unreported, 1981 WL 4696. There was no

plea entered in this case.

       {¶21} Finally, appellant cites to Evid.R. 403(A) which provides that “Although

relevant, evidence is not admissible if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury”.

However, assuming, arguendo, that it was error to admit such letter, we find any such error

harmless in light of the overwhelming evidence of appellant’s guilty. Both victims identified

appellant as the man who robbed their store and picked him out of a photo lineup. The
Richland County, Case No. 2019 CA 0086                                              8


robbery was captured on a surveillance video. We find that the probative value of the letter

was not substantially outweighed by the danger of unfair prejudice to appellant.

       {¶22} Appellant’s first assignment of error is, therefore, overruled.

                                             II

       {¶23} Appellant, in his second assignment of error, contends that the trial court

erred in failing to merge the aggravated robbery and robbery counts and their

accompanying gun specifications into a single offense of aggravated robbery with a single

gun specification.

       {¶24} Prior to sentencing, defense counsel had argued that the two counts should

merged because the victim was Circle K and there was only one animus. Appellee had

argued that there were two victims namely, the two employees of Circle K.

       {¶25} R.C. 2941.25, Ohio's allied offense statute, provides:

       {¶26} (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.

       {¶27} (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 to each, the indictment or

information may contain counts for all such offenses, and the defendant may be convicted

of all of them.

       {¶28} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:
Richland County, Case No. 2019 CA 0086                                                9


       {¶29} 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.

       {¶30} 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.

       {¶31} 3. Under 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.

       {¶32} The Ruff court explained at paragraph 26:

              At its heart, the allied-offense analysis is dependent upon the facts

       of a case because R.C. 2941.25 focuses on the defendant's conduct. The

       evidence at trial or during a plea or sentencing hearing will reveal whether

       the offenses have similar import. When a defendant's conduct victimizes

       more than one person, the harm for each person is separate and distinct,

       and therefore, the defendant can be convicted of multiple counts. Also, a

       defendant's conduct that constitutes two or more offenses against a single

       victim can support multiple convictions if the harm that results from each

       offense is separate and identifiable from the harm of the other offense. We

       therefore hold that two or more offenses of dissimilar import exist within the

       meaning of R.C. 2941.25(B) when the defendant's conduct constitutes
Richland County, Case No. 2019 CA 0086                                              10


       offenses involving separate victims or if the harm that results from each

       offense is separate and identifiable.

       {¶33} “Separate convictions and sentences are permitted [under R.C. 2941 .25]

when a defendant's conduct results in multiple victims.” State v. Allen, 8th Dist. Cuyahoga

No. 97014, 2012–Ohio–1831, ¶ 59, citing State v. Skaggs, 2nd Dist. Clark No. 10–CA–26,

2010–Ohio–5390, ¶ 7.

       {¶34} In the case sub judice, there were two victims namely, Kara Ward and

Tammie Marshall, and different conduct. As noted by appellee, when appellant robbed

the circle K, he threatened the lives of both woman. Appellant threatened each victim with

a gun and took money from both of them. We find, therefore, that appellant’s convictions

do not merge even though the offenses were committed by a single transaction because

each was committed with a separate animus.

       {¶35} Appellant’s second assignment of error is, therefore, overruled.

                                               III

       {¶36} Appellant, in his third assignment of error, argues that the trial court erred

in sentencing him to consecutive and maximum sentences.

       {¶37} Pursuant to R.C. 2953.08(A)(1), appellant is entitled to appeal as of right

the maximum sentences imposed on his convictions. In accordance with R.C. 2953.08(C)

(1), appellant is granted leave to appeal his consecutive prison terms because the

sentence imposed exceeds the maximum term for a felony of the third degree.

       {¶38} Pursuant to R.C. 2953.08(G)(2), we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly find

that either the record does not support the sentencing court's findings under R.C.
Richland County, Case No. 2019 CA 0086                                                   11


2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise

contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049.

        {¶39} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

        {¶40} As noted by this court in State v. Taylor, 5th Dist. Richland No. 17CA29,

2017-Ohio-8996, ¶ 16:

               A trial court's imposition of a maximum prison term for a felony

        conviction is not contrary to law as long as the sentence is within the

        statutory range for the offense, and the court considers both the purposes

        and principles of felony sentencing set forth in R.C. 2929.11 and the

        seriousness and recidivism factors set forth [in] R.C. 2929.12. State v. Keith,

        8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16.

        {¶41} R.C. 2929.11 governs overriding purposes of felony sentencing. Under

R.C. 2929.11(A), a trial court shall be guided by the overriding purposes of felony

sentencing which are: (1) “to protect the public from future crime by the offender and

others,” (2) “to punish the offender,” and (3) “to promote the effective rehabilitation of the

offender using the minimum sanctions that the court determines accomplish those
Richland County, Case No. 2019 CA 0086                                                  12


purposes without imposing an unnecessary burden on state or local government

resources.”

        {¶42} R.C. 2929.12 governs factors to consider in felony sentencing in relation to

the seriousness of the offenses and the likelihood of recidivism. Subsection (B) states the

following in relevant part:

        {¶43} (B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender's conduct is more serious than conduct normally constituting

the offense:…

        {¶44} (2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

        {¶45} The trial court shall also consider in relevant part the offender's prior criminal

history and whether the offender shows any remorse. R.C. 2929.12(D).

        {¶46} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, syllabus. R.C. 2929.14(C)(4) states:

        {¶47} (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
Richland County, Case No. 2019 CA 0086                                               13


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:

        {¶48} (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.

        {¶49} (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.

        {¶50} (c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

        {¶51} During the sentencing hearing, the trial court noted that it had the

opportunity to sit through the trial and watch the video. The trial court also heard from

Tammie Marshall. There was a discussion that this was a violent offense, that a firearm

was used and that there we multiple victims. In addition, appellant was on probation at the

time of committing this offense for several burglaries committed in 2013 and had a 2011

conviction and had been the aggressor in some assaults while in jail. Appellee informed

the trial court that appellant had a history of criminal convictions and juvenile delinquency

and had multiple violent offense convictions in his past and did not express genuine

remorse.
Richland County, Case No. 2019 CA 0086                                                14


        {¶52} The trial court, in sentencing appellant, found that both victims had suffered

psychological harm and that it did not find any “less serious factors”. Sentencing Transcript

at 250. The trial court found that recidivism was likely and that appellant was on community

control when he committed the offenses in this case and had a long history of criminal

convictions including theft, burglary, and aggravated trespass. The trial court further noted

that the offenses in this case were the most serious that appellant had committed, that

appellant did not show remorse and denied committing the crime and that it was concerned

with protecting the public and punishing the offender.

        {¶53} The trial court, in sentencing appellant, stated, in relevant part as follows:

        {¶54} As to the counts, I’m going to find that consecutive sentences are necessary

in this case for some but not all of the counts, and I will discuss that further. The reason I

believe consecutive sentences are necessary in this case is to protect the public from

future crime, to punish the offender, not disproportionate to the seriousness of the conduct

or the danger posed to the public, and I have listed the reasons that - - for those, one of

which is when he committed this offense he was already on community control for a prior

offense. We talked about that. That was the 2011-CR-90. That was the two counts of

fourth-degree felony theft. These offenses were multiple offenses committed as part of

one course of criminal conduct, and the harm caused to the – by the multiple offenses was

so great or unusual that no single prison term adequately reflects the seriousness of the

conduct or the danger posed to the public.

        {¶55} Finally, we’ve gone over that this is not Mr. Hart’s first criminal conviction.

In fact, looking at just cases here in Richland County, this is his sixth felony case in

Richland County. So for that reason, I think it’s necessary – or his criminal history
Richland County, Case No. 2019 CA 0086                                               15


demonstrates that consecutive sentences are necessary to protect the public and punish

the offender.

       {¶56} As far as the sentences go, Count 1 will be ten years; Count 2, eight years;

Count 4, 18 months; Count 5, 36 months. Count 1, 2, and 5 will run consecutive and

consecutive to the six-year gun specification. Count 4, the CCW, will be run concurrent.

The total sentence in the case is 27 years in prison. That will be the sentence of the Court.

       {¶57} Sentencing Transcript at 258-259.

       {¶58} Based on the foregoing, upon review, we find the sentence imposed is not

clearly and convincingly contrary to law. The individual sentences are within the statutory

range, the trial court considered the R.C. 2929.11 and 2929.12 factors, and the record

supports the trial court's findings under R.C. 2929.14(C)(4).

       {¶59} Appellant’s third assignment of error is, therefore, overruled.
Richland County, Case No. 2019 CA 0086                                       16


        {¶60} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
