[Cite as State v. Winters, 2013-Ohio-2722.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :    APPEAL NOS. C-120543
                                                               C-120544
        Plaintiff-Appellee,                   :    TRIAL NOS. B-1000393
                                                              B-1203109
  vs.                                         :
                                                   O P I N I O N.
JASON WINTERS,                                :

     Defendant-Appellant.                     :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: June 28, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswall, Jr., for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


D INKELACKER , Presiding Judge.

       {¶1}     Defendant-appellant Jason Winters was convicted of five counts of

theft, seven counts of forgery, and one count of misuse of credit cards. Winters now

appeals, raising two assignments of error. For the following reasons, we vacate his

sentences in part and remand for resentencing. In all other respects, we affirm the

judgment of the trial court.

                                      Background

       {¶2}     In a 13-count indictment, the state alleged that Winters repeatedly stole

money from an elderly women for whom he had been providing home care. The

indictment contains several parts: Count 1 addresses the theft of the checks and debit

cards on May 17, 2011, and Count 8 also addresses the theft of personal property on that

date; Counts 2 through 4 address the forgery of three checks, and Count 5 addresses the

theft of money resulting from the forgery of those checks; Count 6 addresses the

unauthorized use of a credit card, and Count 7 addresses the theft of money resulting

from that credit card misuse; and Counts 9 through 12 address the forgery of four

additional checks, and Count 13 addresses the theft of money resulting from the forgery

of those checks.

       {¶3}     Pursuant to a plea agreement, Winters admitted to violating community

control requirements in an unrelated case and pleaded guilty to counts 1, 2, 5, 6, 7, 8, 9,

and 13. At the sentencing hearing, Winters received a separate sentence for each of

those counts.

                                         Merger

       {¶4}     In his first assignment of error, Winters argues that the trial court erred

by imposing convictions and consecutive sentences for Counts 1 and 8, and Counts 6



                                            2
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


and 7 under Ohio’s multiple-count statute, R.C. 2941.25.        Under R.C. 2941.25, “a

sentence may be imposed for only one of multiple offenses if the record shows that the

state relied upon the same conduct to prove the offenses, and that the offenses were

committed neither separately nor with a separate animus as to each.” State v. Campbell,

2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.).

        {¶5}   When applying R.C. 2941.25, this court must “consider the statutory

elements of each offense in the context of the defendant’s conduct.” State v. Williams,

134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 20. In this case, Counts 1 and

8 charged Winters with theft, as defined by R.C. 2913.02(A). The record reflects that on

May 17, 2011, Winters stole the woman’s credit card and checks, and used them at

several banks. Count 1 related to the theft of her checks and credit cards. Count 8 also

alleged theft, but only of general personal property. Since the record indicates that only

checks and credit cards were taken, the two counts can only refer to the same theft.

Thus, Winters committed Counts 1 and 8 together with the same conduct on the same

date.

        {¶6}   As to his argument regarding Counts 6 and 7, Winters was convicted of

misuse of credit cards, as defined by R.C. 2913.21(B)(2), and another count of theft.

Between October 8, 2011, and February 13, 2012, Winters used the woman’s credit cards

to charge $610.97. Count 6 refers to the misuse of her credit card for that amount, and

Count 7 refers to the same amount as the object of the theft charge. Both counts relate

to the same time frame, and the bill of particulars uses exactly the same language to

describe each offense. Thus, Winters committed Counts 6 and 7 together with the same

conduct on the same dates.

        {¶7}   We next examine whether the offenses were each committed with a

separate animus. “The Ohio Supreme Court interprets the term ‘animus’ to mean


                                            3
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS


‘purpose or, more properly, immediate motive,’ and infers animus from the surrounding

circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting

State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). Although animus is

often difficult to prove directly, “the manner in which a defendant engages in a course of

conduct may indicate distinct purposes.” State v. Whipple, 2012-Ohio-2938, 972 N.E.2d

1141, ¶ 38 (1st Dist.).

        {¶8}     In this case, the record reflects that Winters’s immediate motive was to

steal from his victim by means of the checks and debit cards he took. When he stole the

checks and credit cards, which were the personal property of the victim, he committed

the offenses alleged in Counts 1 and 8 with the same animus. Likewise, when he

misused the victim’s credit cards, and stole money from the victim as a result of that

misuse, he committed the offenses alleged in Counts 6 and 7 with the same animus.

        {¶9}     Having determined that the offenses were committed with the same

conduct and not separately, we hold that Counts 1 and 8 should have been merged under

R.C. 2941.25, and that Counts 6 and 7 should have been merged under R.C. 2941.25.

Accordingly, the first assignment of error is sustained.

                                       Sentencing

        {¶10}    In his second assignment of error, Winters argues that the trial court

erred by imposing a sentence that is not supported by the findings in the record.

Specifically, Winters argues that the trial court failed to consider his remorse in light of

his counsel’s and his own remarks about his remorse during the sentencing hearing.

        {¶11}    Appellate review of a criminal sentence requires a two-step approach.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. First, the trial

court must comply with all applicable rules and statutes in imposing a sentence that is

not clearly and convincingly contrary to law. Id. The trial court’s decision is then


                                             4
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


reviewed under an abuse-of-discretion standard. Id. Unless something in the record

reflects otherwise, trial courts are presumed to have followed the purposes and

principals of sentencing.

       {¶12}    In this case, Winters repeatedly stole from an elderly woman for whom

he had been providing home care. He essentially deprived her of her life savings while

she was hospitalized. Further, Winters committed these crimes while on community

control for an unrelated offense. Finally, the court noted that Winters showed a lack of

remorse, despite his later comments, and showed no desire to change his criminal

habits. The fact that the trial court did not believe that Winters was remorseful is not

grounds to overturn his sentence. Therefore, Winters failed to establish that the trial

court’s sentence was unreasonable, arbitrary, or unconscionable.           We overrule his

second assignment of error.

                                       Conclusion

       {¶13}    Having determined that the trial court erred in imposing separate

sentences for Counts 1 and 8, and Counts 6 and 7, we vacate those sentences and

remand this cause for resentencing pursuant to the state’s election.              See State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of

the syllabus. In all other respects, we affirm the judgment of the trial court.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.



FISCHER and DEWINE, JJ., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                              5
