[Cite as State v. Calhoun, 2014-Ohio-3662.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              FAYETTE COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :      CASE NO. CA2013-05-014

                                                    :           OPINION
   - vs -                                                        8/25/2014
                                                    :

JASON R. CALHOUN,                                   :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. 13 CRI 00039



Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington
C.H., Ohio 43160, for plaintiff-appellee

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
defendant-appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Jason R. Calhoun, appeals the judgment of the Fayette

County Common Pleas Court convicting him of multiple offenses, including burglary, theft,

breaking and entering and two counts of misuse of credit cards, for which he was sentenced

to a total of ten years in prison. For the reasons that follow, we affirm the judgment of the

trial court.
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      {¶ 2} On January 3, 2013, appellant broke into the home of Jane Dill, who was 92

years old, sometime after she had fallen asleep around 10:00 p.m. that night. He stole credit

cards from her purse and several large-scale electronics. Dill's kitchen window was later

discovered broken. One of Dill's neighbors, Paul E. Newberry, who owns a nearby vacant

home that been put up for sale, discovered that a dining room window in the home had been

broken, one of the screens on the porch had been cut, and a few screens on the back of the

house were out of place, but nothing was taken from the home. Carl Smith, whose mother,

Irene Smith, is in a nursing home but still owns property in the same neighborhood, noticed a

screen out of place on his mother's home and that a window had been "knocked out in the

house." Carl also found splatters of blood all around his mother's house and saw that

someone had gone through a jewelry box that was in the house, opening its drawers and

upending its contents, and had left other personal effects out of place.

      {¶ 3} At approximately 12:30 a.m. on January 4, 2013, a Murphy USA gas station

clerk, Kaley Dunham, sold two cartons of cigarettes to a man who was later determined to be

appellant. Appellant paid for the cigarettes with a credit card that belonged to Jane Dill.

Appellant initially signed his name "Jason Calhoun" on the credit card transaction slip.

However, he requested the credit card slip back, scratched out his signature, "Jason

Calhoun," and then scribbled something illegible under his scratched-out signature. Dunham

saw appellant leave with two women in a taxi.

      {¶ 4} Shortly thereafter, appellant and the two women entered a WalMart that was

near the Murphy USA gas station. A WalMart night-time cashier, Alexandria Harter, saw

appellant and the two women use a credit card to make a "test purchase" of three Pepsis to

"clear the card to see if it would work." Harter observed appellant and the two women as

they looked through the store. At one point, they came up to Harter and asked for help in the

jewelry department, and Harter sent one of her fellow employees to help them. Appellant
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and the two women went to the electronics department, and then walked up to the checkout

register, with a Galaxy tablet, several different pieces of jewelry and three cell phones.

Harter rang up the items that appellant and the two women sought to purchase, which totaled

approximately $1,600. Appellant handed Harter a credit card to pay the $1,600 bill. Harter

took the credit cart and charged the $1,600 bill to it, using the store's computerized checkout

register, and $1,600 was debited to the credit card. At the same time, however, the

computerized checkout register prompted Harter to check the customer's I.D. When Harter

asked appellant to see the credit card and his I.D., she noticed that the name on the credit

card was "Jane Dill" while the name on appellant's I.D. was "Jason Calhoun." Harter then

summoned the store's manager, Alana Bryant.

       {¶ 5} When Bryant came to the checkout register, appellant explained to her that the

credit card belonged to his mother and that he had permission to use it to buy Christmas

presents for himself and his friends who were with him. Bryant told appellant that he could

not use the credit card because the name on the I.D. he provided did not match the name on

the credit card. Bryant made appellant take the items to the store's service desk. She

escorted him and the two women with him to the store's customer service area to ring back

the items. When they got there, Bryant refunded all the money to the credit card that had

been debited to it as a result of appellant's use of it. After refunding the money to the credit

card, Bryant stepped into the store's cash office and called the police. Appellant and the two

women left the store, with appellant taking the credit card with him. Harter heard appellant

and the two women say as they left, "hurry, run, hurry[.]" After the three had "dart[ed] off,"

one of them came back inside and told Harter that they were trying to get a taxi. Eventually,

a taxi came and the three got into it and left the store.

       {¶ 6} Officer Jeff Heinz was dispatched to the WalMart in response to Bryant's call.

When he arrived there five minutes later, he noticed a taxi that was just pulling out. Officer

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Heinz flagged down the taxi driver to get him to stop, which he did. The taxi driver told

Officer Heinz that he had just picked up the three individuals seated in his taxi from WalMart.

Officer Heinz spoke to all three of the passengers, including appellant. Appellant first told

Officer Heinz that his name was "Kyler Willis," but appellant was unable to provide his social

security number. One of the two females with appellant in the taxi eventually told Officer

Heinz who appellant actually was, and appellant himself eventually admitted who he was.

Officer Heinz found two Fifth Third credit cards, one blue and the other gold, lying on the

passenger-side floorboard of the taxi.     Both credit cards bore Jane Dill's name. Officer

Heinz found two cartons of cigarettes in the backseat in the passenger area and another

carton of cigarettes and a pack of Newports that were in the front of the vehicle. Officer

Heinz noticed that appellant had an injury to his hand that was bleeding through its

bandages.

       {¶ 7} Appellant was indicted in Case No. 13CRI00039 on ten counts involving the

events that occurred at the Murphy USA gas station and WalMart on or about January 4,

2013. The charges included four counts of forgery in violation of R.C. 2913.31(A)(1) and

2913.31(A)(3), with all four counts being fifth-degree felonies (Counts One, Two, Three and

Four); two counts of receiving stolen property in violation of R.C. 2913.02(A)(3), both fifth-

degree felonies (Counts Six and Seven); two counts of misuse of credit card in violation of

R.C. 2913.21(B)(2), with a specification that the victim was an elderly person in violation of

R.C. 2913.21(D)(4), both fourth-degree felonies (Counts Eight and Nine); and one count of

theft in violation of R.C. 2913.02(A)(3), a first-degree misdemeanor (Count Ten).

       {¶ 8} Appellant was indicted in Case No. 13CRI00040 on five counts involving the

break-ins that occurred at the houses of Dill, Newberry and Irene Smith on or about January

3, 2013. The charges included burglary in violation of R.C. 2911.12(A)(1), a second-degree

felony (Count One); theft in violation of R.C. 2913.02(A)(1), a fifth-degree felony (Count Two);

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two counts of breaking and entering in violation of R.C. 2911.13(A), both fifth-degree felonies

(Counts Three and Four); and possession of criminal tools in violation of R.C. 2923.24(A), a

fifth-degree felony (Count Five), with a specification that the device or instrument was

intended for use in the commission of a felony.

         {¶ 9} Appellant was tried by jury simultaneously on Case Nos. 13CRI00039 and

13CRI00040. The state presented the testimony of several law enforcement officers involved

in the case and the employees of Murphy USA gas station and WalMart who testified to the

facts related above. The state presented photos of shoe prints at the crime scene and

appellant's shoes, which were collected at the time of his arrest. The state also presented

testimony from a forensic expert who testified that appellant's shoes had tread impressions

consistent with those found at one of the homes that had been burglarized and a DNA expert

who testified that appellant's blood DNA was consistent with blood found on a rock and a

jewelry box at one of those same homes.

         {¶ 10} At the close of evidence, the state dismissed Counts Five (attempted theft) and

Ten (theft) in Case No. 13CRI00039, and in that same case, the trial court joined Counts Six

and Seven (each count for receiving stolen property) into a single count, Count Six. The jury

convicted appellant in Case No. 13CRI00039 of four counts of forgery (Counts One, Two,

Three and Four); receiving stolen property (Count Six); both counts of misuse of credit cards

(Counts Eight and Nine) and the elderly-victim specifications attached to those two counts.

The jury acquitted appellant in Case No. 13CRI00040 of one count of breaking and entering

(Count Three) and possession of criminal tools (Count Five), but convicted him of burglary

(Count One), theft (Count Two) and the remaining count of breaking and entering (Count

Four).

         {¶ 11} At appellant's sentencing hearing, the trial court determined, as to Case No.

13CRI00039, that appellant's convictions on Counts One (forgery), Two (forgery) and Eight
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(misuse of credit cards) were allied offenses of similar import and that appellant's convictions

on Counts Three (forgery), Four (forgery) and Nine (misuse of credit cards) were allied

offenses of similar import. The state elected to proceed on Count Eight (misuse of credit

cards at WalMart) and Count Nine (misuse of credit cards at Murphy USA gas station). The

trial court sentenced appellant to 12 months in prison on each count of misuse of credit cards

and ordered him to serve those two 12-month prison terms concurrently. The trial court

merged appellant's conviction on Count Six (receiving stolen property) with his conviction on

Count Two (theft) in Case No. 13CRI00040, after finding that those offenses were allied

offenses of similar import, and the state elected to proceed on appellant's theft conviction in

Count Two.

       {¶ 12} In Case No. 13CRI00040, the trial court sentenced appellant to eight years in

prison for his conviction on Count One (burglary), 12 months in prison for his conviction on

Count Two (theft) and 12 months in prison for his conviction on Count Four (breaking and

entering), and ordered him to serve each of those sentences consecutively, giving him a ten-

year prison sentence for his convictions in that case. The trial court then ordered appellant to

serve his ten-year prison sentence in Case No. 13CRI00040 concurrently with his 12-month

prison sentence in Case No. 13CRI00039, giving him an aggregate ten-year prison sentence

for his convictions in both cases.

       {¶ 13} Appellant now appeals, assigning the following as error:

       {¶ 14} Assignment of Error No. 1:

       {¶ 15} THE COURT ABUSED ITS DISCRETION BY NOT PERMITTING A

CONTINUANCE FOR THE DEFENDANT TO BRING FORTH WITNESSES TO TESTIFY IN

HIS BEHALF.

       {¶ 16} Assignment of Error No. 2:

       {¶ 17} THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO CONVICT THE
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DEFENDANT COUNT EIGHT, MISUSE OF A CREDIT CARD. [sic]

        {¶ 18} Assignment of Error No. 3:

        {¶ 19} THE COURT ERRED BY OVERRULING THE DEFENDANT'S MOTION FOR

RULE 29 DIRECTED VERDICT OF ACQUITTAL AS TO COUNTS THREE, FOUR AND

NINE.

        {¶ 20} Assignment of Error No. 4:

        {¶ 21} THE COURT COMMITTED REVERSIBLE ERROR BY SENTENCING THE

DEFENDANT TO MAXIMUM, CONSECUTIVE SENTENCES IN CASE NO. 13CR100040.

        {¶ 22} In his first assignment of error, appellant argues the trial court erred by denying

his request on the morning of trial for a continuance to subpoena witnesses on his behalf,

because the trial court did not inquire as to the length of delay being sought by him to procure

his witnesses, he previously had not sought a continuance, the state would not have been

unduly inconvenienced by the continuance even though the state's witnesses may have been

inconvenienced, and he had limited access to his attorney due to his incarceration. This

argument lacks merit.

        {¶ 23} A trial court has broad discretion in deciding whether or not to grant a

continuance, and its decision will not be overturned unless it amounts to an abuse of

discretion, i.e., it is unconscionable, arbitrary or unreasonable. State v. Grant, 67 Ohio St.3d

465, 479 (1993). The trial court may consider all relevant factors, including the reasons for,

and the length, of the continuance requested; whether any prior continuance was granted in

the case; inconvenience to the parties; and whether the defendant contributed to the reasons

for the requested continuance. Id.

        {¶ 24} Here, the trial court did not abuse its discretion by denying appellant's motion

for a continuance since it was made on the morning of trial and the two cases on which

appellant was being tried had been pending for approximately two months, one of appellant's
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victims was 92 years old, appellant's attorney previously represented to the trial court that

there was no further reciprocal discovery needed, and appellant failed to proffer the names of

the witnesses whose testimony he sought to present and explain how they would assist his

defense.

       {¶ 25} Therefore, appellant's first assignment of error is overruled.

       {¶ 26} In his second assignment of error, appellant argues the state failed to present

sufficient evidence to convict him of Count Eight in Case No. 13CRI00039, which charged

him with misuse of credit cards at WalMart. The charge arose from appellant's use of a

stolen credit card at WalMart to purchase electronics and jewelry worth $1,600. Appellant

contends that since the computerized checkout register at WalMart would not complete the

transaction in the absence of a valid I.D. check and the transaction was voided and the

charges were refunded to the cardholder, no property was "obtained" by him before leaving

the store, and therefore, the state failed to prove the elements of the offense of misuse of

credit card.

       {¶ 27} Initially, appellant failed to file a timely Crim.R. 29 motion for acquittal on Count

Eight. The Ohio Supreme Court has held that if a criminal defendant fails to file a timely

Crim.R. 29 motion for acquittal, the defendant waives, for purposes of appeal, all but plain

error regarding the sufficiency of the evidence. State v. Roe, 41 Ohio St.3d 18, 25 (1989),

and Dayton v. Rogers, 60 Ohio St.2d 162, 163 (1979). However, the court has stated in two

more recent cases that a failure to file a timely Crim.R. 29(A) motion during a jury trial does

not waive an argument regarding the sufficiency of the evidence since the defendant's "not

guilty" plea preserves his right to challenge the sufficiency of the evidence on appeal. State

v. Jones, 91 Ohio St.3d 335, 346 (2001); State v. Carter, 64 Ohio St.3d 218, 223 (1992).

       {¶ 28} "An alleged error is plain error only if it is 'obvious,' and 'but for the error, the

outcome of the trial clearly would have been otherwise.'" State v. Blake, 12th Dist. Butler No.
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CA2011-07-130, 2012-Ohio-3124, ¶ 25, quoting State v. Jackson, 12th Dist. Fayette No.

CA2011-01-001, 2011-Ohio-5593, ¶ 13, citing State v. Perez, 124 Ohio St.3d 122, 2009-

Ohio-6179, ¶ 181. It has been held that "because 'a conviction based on legally insufficient

evidence constitutes a denial of due process,' State v. Thompkins (1997), 78 Ohio St.3d 380,

386-387, a conviction based upon insufficient evidence would almost always amount to plain

error." State v. Coe, 153 Ohio App. 3d 44, 49, 2003-Ohio-2732 (4th Dist.2003).

       {¶ 29} R.C. 2913.21 defines the offense of misuse of credit cards, in pertinent part, as

follows:

              (B) No person, with purpose to defraud, shall do any of the
              following:

              ***

              (2) Obtain property or services by the use of a credit card, in one
              or more transactions, knowing or having reasonable cause to
              believe that the card has expired or been revoked, or was
              obtained, is retained, or is being used in violation of law[.]

       {¶ 30} R.C. Chapter 2913 does not define the word "obtain." Therefore, the word

must "be read in context and construed according to the rules of grammar and common

usage." R.C. 1.42. "Obtain" is commonly defined as meaning "to gain or attain possession

or disposal of [usually] by some planned action or method[.]"          Webster's Third New

International Dictionary (1993) 1559.

       {¶ 31} Here, the credit card appellant used at WalMart went through the store's

computerized checkout register. The charges for the merchandise that appellant brought to

the register to purchase were debited to the credit card. Once the store's employees

discovered that the name on appellant's I.D. did not match the name on the credit card, they

voided appellant's $1,600 purchase and refunded to the credit card the $1,600 that had been

debited to it. Under these facts, we conclude that at the very moment the funds were debited

to the stolen credit card, appellant, "with purpose to defraud" "obtained[ed] property" "by the
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use of a credit card," "knowing or having reasonable cause to believe that the card * * * was

obtained, is retained, or is being used in violation of law[.]" Our conclusion is not changed by

the fact that the store's computerized checkout register prompted the store's employees to

check the customer's I.D., which in turn led them to prohibit appellant from leaving the store

with the merchandise, because by the time the store's employees checked appellant's I.D.,

he already had completed the offense of misuse of credit cards as defined in R.C.

2913.21(B)(2).

       {¶ 32} Therefore, appellant's second assignment of error is overruled.

       {¶ 33} In his third assignment of error, appellant argues the state failed to present

sufficient evidence to prove that he was the perpetrator of the offenses committed at Murphy

USA gas station that formed the basis of Count Three (forgery without consent), Count Four

(forgery by uttering) and Count Nine (misuse of credit card) in Case No. 13CRI00039.

Appellant points out that the state failed to have the cashier at Murphy USA gas station

identify him as the person who entered the store, purchased the cigarettes, used the credit

card or signed the transaction slip and that the cashier had lots of customers and thus

probably could not remember this particular transaction.             We find this argument

unpersuasive.

       {¶ 34} The identification of a perpetrator can be established by circumstantial

evidence. State v. Saunders, 12th Dist. Fayette No. CA2012-Ohio-006, 2013-Ohio-2052,

¶44. Here, even though the state did not have the cashier at Murphy USA gas station

identify appellant at trial as the person who used Jane Dill's credit card to purchase the two

cartons of cigarettes, there was ample circumstantial evidence that appellant was in fact the

person who did so. State's Exhibit 12 shows a receipt from Murphy USA gas station that has

appellant's name "Jason Calhoun" scratched out, and underneath it, has an illegible scribble.

The cashier noted that the individual who signed the name "Jason Calhoun" was seen
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leaving the store in a taxi cab. Appellant was in the vicinity of the Murphy USA gas station

shortly after the cigarette purchase, the cashier and the manager at WalMart saw appellant

enter a taxi cab, and shortly thereafter, appellant was apprehended in a taxi cab nearby.

There were two cartons of cigarettes found in the taxi cab that matched the ones sold that

night at Murphy USA gas station to the man who signed his name "Jason Calhoun," then

scratched out that signature and replaced it with a scribble.

       {¶ 35} In light of the foregoing, appellant's third assignment of error is overruled.

       {¶ 36} In his fourth assignment of error, appellant argues the trial court failed to make

the requisite findings under R.C. 2929.14(C)(4) before imposing consecutive sentences on

him in Case No. 13CRI00040 for his convictions for burglary, theft, and breaking and

entering, for which he received prison sentences of eight years, 12 months, and 12 months,

respectively, to be served consecutively. He asserts that the trial court failed to find that (1)

"consecutive sentences are not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public[,]" (2) he "was on some sort of community

control sanction at the time these offenses were committed[,]" (3) he "committed one or more

of the multiple offenses while he awaiting [sic] trial or sentencing" and (4) "at least two of the

multiple offenses were committed as part of one or more courses of conduct." However,

appellant misreads R.C. 2929.14(C)(4).

       {¶ 37} "The presumption in Ohio is that sentencing is to run concurrent, unless the trial

court makes the required findings for imposing consecutive sentences set forth in R.C.

2929.14(C)(4)." State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 17.

       {¶ 38} R.C. 2929.14(C)(4) provides:

              (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
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              sentences are not 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:

              (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.

              (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.

              (c) The offender's history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by the offender.

       {¶ 39} In order to impose a consecutive sentence on an offender, the sentencing court

initially must find that the consecutive sentence is necessary to protect the public from future

crime or to punish the offender and that the consecutive sentence is not disproportionate to

the seriousness of the offender's conduct and to the danger the offender poses to the public.

Nia, 2014-Ohio-2527 at ¶18. If the sentencing court makes these findings, it then must find

that one of the three circumstances set forth in R.C. 2929.14(C)(4)(a)-(c) exists. Id.

       {¶ 40} Here, the trial court found that "consecutive sentences are necessary to protect

the public and to punish the defendant, the emphasis being on protection of the public" and

that "a single term does not adequately reflect the seriousness of [the offender's, i.e.,

appellant's] conduct."    These findings demonstrate that the trial court satisfied R.C.

2929.14(C)(4)'s requirements that before imposing consecutive sentences on an offender,

the court must find that "the consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are not disproportionate to

the seriousness of the offender's conduct and to the danger the offender poses to the


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public[.]"

       {¶ 41} The trial court also stated that the harm caused by appellant was to an elderly

person and that appellant's "criminal history shows that consecutive terms are necessary to

protect the public." This finding fulfills R.C. 2929.14(C)(4)'s requirement that the trial court

find that one of the three criteria listed in R.C. 2929.14(C)(4)(a)-(c) exists. Specifically, the

trial court's finding that appellant caused harm to an elderly person and that his criminal

history demonstrates that consecutive sentences are necessary to protect the public shows

that the trial court found that "the offender's history of criminal conduct demonstrates that

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

R.C. 2929.14(C)(4)(c).

       {¶ 42} Accordingly, appellant's fourth assignment of error is overruled.

       {¶ 43} Judgment affirmed.


       RINGLAND, P.J., and S. POWELL, J., concur.




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