State v. Beverly

[Cite as State v. Beverly, 2013-Ohio-1365.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 64

v. : T.C. NO. 11CR258A

JORDAN BEVERLY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :

:
..........
OPINION
Rendered on the 5th day of April, 2013.
..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia
Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,
Ohio 45066
Attorney for Defendant-Appellant

..........

FAIN, P.J.

{¶ 1} Defendant-appellant Jordan Beverly appeals from his conviction and sentence for

one count of Engaging in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1), a
 2

felony of the first degree; eight counts of Burglary, in violation of R.C. 2911.12(A)(3), all

felonies of the third degree; five counts of Receiving Stolen Property, in violation of R.C.

2913.51, all felonies of the fourth degree; one count of Receiving Stolen Property, in violation of

R.C. 2913.51, a felony of the fifth degree; one count of Attempted Burglary, in violation of R.C.

2923.02 and 2911.12(A)(1), a felony of the third degree; one count of Attempted Burglary, in

violation of R.C. 2923.02 and 2911.12(A)(3), a felony of the fourth degree; two counts of Fleeing

and Eluding, in violation of R.C. 2921.331(B), a felony of the third degree; and one count of

Having Weapons While Under Disability, in violation of R.C. 2923.13, a felony of the third

degree.

{¶ 2} Beverly contends that the trial court erred in overruling his motion to suppress

incriminating statements he made to police, because those statements were not knowing and

voluntary. He contends that the evidence in the record is insufficient to support his conviction

for Engaging in a Pattern of Corrupt Activity, because there was insufficient proof of the

existence of an enterprise. Beverly also contends that his sentence of 66½ years constitutes an

abuse of discretion. Finally, Beverly contends that his convictions for Receiving Stolen

Property and for Having Weapons While Under a Disability should have been merged.

{¶ 3} We conclude that the trial court did not err when it overruled Beverly’s motion to

suppress, because the record establishes that his incriminating statements were made knowingly,

intelligently, and voluntarily. We agree with Beverly that there is insufficient evidence in this

record to prove the enterprise element of Engaging in a Pattern of Corrupt Activity. We agree

with Beverly that his sentence of 66½ years constitutes an abuse of discretion. We also agree

with Beverly that the trial court erred when it failed to merge his convictions for Receiving
 3

Stolen Property and for Having a Weapon While Under a Disability. Accordingly, Beverly’s

conviction and sentence for Engaging in a Pattern of Corrupt Activity is Reversed and Vacated;

the sentence imposed by the trial court is Reversed; and this cause is Remanded for merger of the

Receiving Stolen Property and Having a Weapon While Under a Disability convictions and for

re-sentencing.

I. The Course of Proceedings

{¶ 4} Beverly was originally indicted in February 2011. In April, Beverly was

re-indicted in a 25-count indictment. Both indictments concerned a series of thefts and burglaries

that occurred in and around Clark County, Ohio, in late 2010 and early 2011. It was alleged that

Beverly committed most, if not all, of the offenses with his co-defendant, Brandon Imber.

{¶ 5} Beverly moved to suppress statements he made to police officers after he was

arrested and taken into custody. After a hearing on the motion, the trial court overruled it.

{¶ 6} Beverly’s jury trial lasted eight days. Beverly was convicted on one count of

Engaging in a Pattern of Corrupt Activity; eight counts of Burglary; six counts of Receiving

Stolen Property; two counts of Attempted Burglary; two counts of Fleeing and Eluding; and one

count of Having Weapons While Under a Disability. The trial court merged the two counts of

Fleeing and Eluding, and sentenced Beverly to an aggregate prison term of 66½ years.

{¶ 7} From his conviction and sentence, Beverly appeals.

II. Beverly’s Waiver of his Miranda Rights, and His

Subsequent Statements, Were Knowing and Voluntary
[Cite as State v. Beverly, 2013-Ohio-1365.]
{¶ 8} Beverly’s First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S

MOTION TO SUPPRESS.

{¶ 9} Beverly contends that the trial court erred when it overruled his motion to

suppress statements he made to police during a custodial interrogation after he was arrested.

Specifically, Beverly argues that the interviewing officer used physical threats and offers of

leniency to coerce his statements. Accordingly, Beverly asserts that the waiver of his rights

under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not

knowing, intelligent, and voluntary.

{¶ 10} In deciding a motion to suppress, “the trial court assumes the role of trier of facts

and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.”

State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v.

Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must

accept the trial court’s findings of fact if they are supported by competent, credible evidence in

the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, citing State v.

Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true,

the appellate court must then determine, as a matter of law and without deference to the trial

court’s legal conclusion, whether the applicable legal standard is satisfied. Id.

{¶ 11} The Fifth Amendment provides that “[n]o person *** shall be compelled in any

criminal case to be a witness against himself.” “The Fifth Amendment privilege against

compulsory self-incrimination ‘protects against any disclosures that the witness reasonably

believes could be used in a criminal prosecution or could lead to other evidence that might be so

used.’” Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humbolt Cty., 542 U.S. 177, 124 S.Ct. 2451,
 5

159 L.Ed.2d 292 (2004) (quoting Kastigar v. United States, 406 U.S. 441, 445, 92 S.Ct. 1653, 32

L.Ed.2d 212 (1972)); Ohio v. Reiner, 532 U.S. 17, 20, 121 S.Ct. 1252, 149 L.E.2d 158 (2001).

The Sixth Amendment to the United States Constitution provides that an individual has a right to

the assistance of counsel for his defense in all criminal prosecutions. This right attaches only at

the initiation of adversarial criminal proceedings. United States v. Davis, 512 U.S. 452, 456-57,

114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164,

793 N.E.2d 446. Nevertheless, the United States Supreme Court has held that “a suspect subject

to custodial interrogation has the right to consult with an attorney and to have counsel present

during questioning, and that the police must explain this right to him before questioning begins.”

Davis, 512 U.S. at 457, citing Miranda v. Arizona, supra.

{¶ 12} When a suspect waives his right to counsel after Miranda warnings have been

given, law enforcement officers are free to question him. However, once a suspect requests

counsel, the police must cease their interrogation until an attorney has been provided or the

suspect himself reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981); Davis, 512 U.S. at 458.

{¶ 13} Whether a suspect has invoked his right to counsel is an objective inquiry. Id.

A request for an attorney must be clear and unambiguous, to the extent that a reasonable police

officer in the circumstances would understand the statement to be an invocation of the right to

counsel. Davis, 512 U.S. at 459; see State v. Murphy, 91 Ohio St.3d 516, 520, 2000-Ohio-112,

747 N.E.2d 765.

{¶ 14} Beverly was first interviewed by Detective James Hollopeter at about ten p.m.

Throughout the brief interview, Beverly appeared lethargic and sluggish. At the beginning of
 6

the interview, Detective Hollopeter informed Beverly of his Miranda rights. During Detective

Hollopeter’s recitation of his constitutional rights, Beverly unequivocally stated that he wanted to

be represented by an attorney. At that point, Detective Hollopeter ended the interview.

Although Beverly contends that Detective Hollopeter forced him to his feet and slammed him

against the wall in the interview room, the audiovisual recording of the interview does not depict

these actions. The recording does support Beverly’s claim that Detective Hollopeter orally

threatened him, saying “you [Beverly] are not going down for a couple of years. You’re going

down for a couple of decades.” Beverly acknowledges that three days later, he asked to speak

with Detective Hollopeter regarding his arrest, through a jail deputy, Matthew Kerns.

{¶ 15} At the second interview, three days later, Detective Hollopeter began by asking

Beverly if he remembered invoking his right to counsel at the first interview. Beverly stated that

he was “pretty messed up,” and that he did not even remember speaking with Detective

Hollopeter in the first interview or invoking his right to counsel. Beverly then informed

Detective Hollopeter that he wanted to discuss his role in the crimes for which he was arrested

and taken into custody. Detective Hollopeter read Beverly his Miranda rights. Detective

Hollopeter then asked Beverly to read the rights waiver out loud, in order to make sure that he

understood the contents of the form. Beverly indicated that he understood his rights. Detective

Hollopeter also informed Beverly that he had just spoken with the prosecutor assigned to the

case. According to Detective Hollopeter, the prosecutor stated that “life will be better” for

whomever confesses first, be it Beverly or his co-defendant, Imber. Thereafter, Beverly waived

his rights and made a number of incriminating statements regarding his role in the burglaries and

thefts for which he was charged.
 7

{¶ 16} A defendant’s statement to police is voluntary absent evidence that his will was

overborne and his capacity for self-determination was critically impaired due to coercive police

conduct. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); State v.

Otte, 74 Ohio St.3d 555, 562, 1996-Ohio-108, 660 N.E.2d 711. “In deciding whether a

defendant’s confession is involuntarily induced, the court should consider the totality of the

circumstances, including the age, mentality, and prior criminal experience of the accused; the

length, intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31,

358 N.E.2d 1051 (1976), at paragraph two of the syllabus, overruled on other grounds, 438 U.S.

911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). See also, State v. Brewer, 48 Ohio St.3d 50, 58,

549 N.E.2d 491 (1990); State v. Marks, 2d Dist. Montgomery No. 19629, 2003-Ohio-4205. The

State has the burden to show by a preponderance of the evidence that a defendant’s confession

was voluntarily given. State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978). A police

officer’s “[p]romises that a defendant’s cooperation would be considered in the disposition of the

case, or that a confession would be helpful, does not invalidate an otherwise legal confession.”

State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994), overruled on other grounds, citing

Edwards, 49 Ohio St.2d at 40-41.

{¶ 17} Upon review, we conclude that Beverly’s statements to Detective Hollopeter

were not induced by unlawful promises of leniency that would render his statements involuntary.

Although Detective Hollopeter told Beverly “life will be better,” the detective did not promise

Beverly that he would receive a more lenient sentence. Furthermore, Detective Hollopeter did

not indicate to Beverly that he had any control over the sentence he would receive, if Beverly
 8

cooperated. We conclude that Detective Hollopeter’s statements to Beverly during both the first

and second interviews did not render Beverly’s confession involuntary. The record portrays a

knowing and intelligent waiver of Miranda as well.

{¶ 18} Beverly’s First Assignment of Error is overruled.

III. The State Failed to Prove the “Enterprise” Element

of Engaging in a Pattern of Corrupt Activity

{¶ 19} Beverly’s Second Assignment of Error is as follows:

THE JURY’S VERDICT AS TO COUNT I – ENGAGING IN A PATTERN OF

CORRUPT ACTIVITY SHOULD BE REVERSED AS IT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 20} Beverly argues that his conviction for Engaging in a Pattern of Corrupt Activity

is against the manifest weight of the evidence. Specifically, Beverly asserts that the State failed

to prove the “enterprise” element of the offense, which requires that there be an ongoing

organization, with associates, that functions as a continuing unit with a structure separate and

apart from the pattern of corrupt activity. State v. Franklin, 2d Dist. Montgomery Nos. 24011,

24012, 2011-Ohio-6802, citing United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524,

2528-29, 69 L.Ed.2d 246 (1981).

{¶ 21} Although Beverly frames his Second Assignment of Error in terms of a

manifest-weight analysis, he actually argues that the evidence in the record is insufficient to

support his conviction for Engaging in a Pattern of Corrupt Activity.

{¶ 22} “A challenge to the sufficiency of the evidence differs from a challenge to the
 9

manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112, 2005-Ohio-6046,

837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a reasonable

doubt.’ (Internal citations omitted). A claim that a jury verdict is against the manifest weight

of the evidence involves a different test. ‘The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

The discretionary power to grant a new trial should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction.’” Id.

{¶ 23} Engaging in a Pattern of Corrupt activity, is proscribed by R.C. 2923.32(A)(1), as

follows:

(A)(1) No person employed by, or associated with, any enterprise shall

conduct or participate in, directly or indirectly, the affairs of the enterprise through

a pattern of corrupt activity or the collection of an unlawful debt.

{¶ 24} An “enterprise” includes any individual, sole proprietorship, partnership, limited

partnership, corporation, trust, union, government agency, or other legal entity, or any

organization, association, or group of persons associated in fact although not a legal entity.

“Enterprise” includes illicit as well as licit enterprises. R.C. 2923.31(C).

{¶ 25} In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69

L.Ed.2d 246 (1981), the United States Supreme Court held that:
 10

In order to secure a conviction under RICO, the Government must prove

both the existence of an “enterprise” and the connected “pattern of racketeering

activity.” The enterprise is an entity, for present purposes a group of persons

associated together for a common purpose of engaging in a course of conduct. The

pattern of racketeering activity is, on the other hand, a series of criminal acts as

defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is

proved by evidence of an ongoing organization, formal or informal, and by

evidence that the various associates function as a continuing unit. The latter is

proved by evidence of the requisite number of acts of racketeering committed by

the participants in the enterprise. While the proof used to establish these separate

elements may in particular cases coalesce, proof of one does not necessarily

establish the other. The “enterprise” is not the “pattern of racketeering activity”;

it is an entity separate and apart from the pattern of activity in which it engages.

The existence of an enterprise at all times remains a separate element which must

be proved by the Government.

{¶ 26} We have joined other Ohio courts of appeals in concluding that R.C. 2923.32

(the Ohio RICO Act) is patterned after the Federal RICO Act, Section 1962, Title 18, U.S.Code.

Franklin, 2011-Ohio-6802. Using the language in Turkette as a guide, in order to establish the

existence of an “enterprise” under Ohio’s RICO Act, there must be some evidence of: (1) an

ongoing organization, formal or informal; (2) with associates that function as a continuing unit;

and (3) with a structure separate and apart, or distinct, from the pattern of corrupt activity. Id.;

United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).
 11

[We have] applied Turkette's evaluation of the existence of an “enterprise” in

determining if the defendant's conviction for engaging in a pattern of corrupt activity was

established by sufficient evidence. See State v. Humphrey, Clark App. No. 02CA0025,

2003–Ohio–2825, ¶ 34; State v. Humphrey, Clark App. No.2002 CA 30,

2003–Ohio–3401, ¶ 41(separate appeals involving cousins and co-defendants involved in

the same criminal “enterprise”); and State v. Fritz, 178 Ohio App.3d 65,

2008–Ohio–4389. In fact, in the latter Humphrey decision, we specifically cited

Turkette, noting that the evidence indicated the existence of an ongoing organization that

functioned as a continuing unit. 2003–Ohio–3401, at ¶ 41. Subsequently, in Fritz, we

cited [State v.] Owen, [2d Dist. Miami No. 98 CA 17, 1999 WL 76826 (February 19,

1999),] and noted that we had previously “ ‘resolved cases questioning the existence of an

enterprise under the corrupt activity statute without reference to the federal

requirements.’ ” 2008–Ohio–4389, at ¶ 48. Despite having made this statement, we did

use the federal requirements in Fritz, when we held that the evidence established the

existence of an enterprise, because it showed that the defendants had associated in an

ongoing organization with a decision-maker and supplier, and a seller, and had also

functioned as a continuing unit. Id. at ¶ 51. State v. Franklin, at ¶ 94.

{¶ 27} Expanding upon its holding in Turkette, the United State Supreme Court in Boyle

v. United States, 556 U.S. 938,129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), separated its inquiry

into three parts: whether the association must have a structure; whether the structure must be

“ascertainable”; and whether the structure must go beyond what is inherent in the pattern of

racketeering activity in which its members engage. Id. at 2244. The Court first concluded that
 12

an association must have at least three structural features: “a purpose, relationships among those

associated with the enterprise, and longevity sufficient to permit these associates to pursue the

enterprise’s purposes.” Id. Next, the Court held that the word “ascertainable” was redundant

and potentially misleading, because each element of any crime must be “ascertainable” in order

for the jury to find that the element has been proven beyond a reasonable doubt. Id.

{¶ 28} “Regarding the last part of the inquiry, the Supreme Court reiterated its holding

in Turkette that ‘the existence of an enterprise is a separate element that must be proved.’ Id.

The Court stressed, as it had in Turkette, that ‘the existence of an enterprise is an element distinct

from the pattern of racketeering activity and proof of one does not necessarily establish the

other.’ ” Id. at 2245, quoting Turkette, 452 U.S. at 583. Franklin, 2011-Ohio-6802, at ¶ 97.

{¶ 29} In Franklin, we concluded that “[w]e have never specifically rejected the

application of federal law, and, in fact, have both impliedly and expressly applied federal law to

Ohio RICO cases when deciding questions of sufficiency of the evidence.” Id. at ¶ 105.

Applying the definition of “enterprise” outlined in Turkette and Boyle, namely “an ongoing

organization with associates that function as a continuing unit with a structure separate and apart

from the pattern of corrupt activity,” we conclude that the evidence in the record before us is

insufficient to prove the “enterprise” element of engaging in a pattern of corrupt activity.

{¶ 30} The evidence in the record establishes that Beverly and Imber were acting in

concert when they engaged in the crime spree leading to these charges. But there is no evidence

in the record that Beverly and Imber were involved in any type of ongoing organization,

functioning as a continuing unit, with a structure separate and apart from the pattern of corrupt
 13

activity. At best, the evidence establishes that Beverly and Imber’s actions were disorganized

and chaotic in the commission of the burglaries and thefts. Accordingly, Beverly’s conviction

for Engaging in a Pattern of Corrupt Activity is not supported by sufficient evidence. His

additional contention that the conviction is against the manifest weight of the evidence is

therefore moot.

{¶ 31} We also note that the trial court erred when it failed to instruct the jury properly

regarding the “enterprise” element of engaging in a pattern of corrupt activity. The charge read

to the jury only contained the statutory definition of “enterprise,” which is insufficient as a matter

of law. “The definitions outlined in Turkette and Boyle are pertinent, and state the law

correctly.” Franklin, 2011-Ohio-6802, at ¶ 106. Thus, the trial court erred when it failed to

instruct the jury on “enterprise” using the definition contained in Turkette and Boyle.

{¶ 32} Beverly’s Second Assignment of Error is sustained.

IV. Beverly’s Convictions for Receiving Stolen Property and for Having

a Weapon While Under a Disability Should Have Merged, Since Both

Offenses Were Consummated by the Same Act – Possession of a Gun,

and Were Animated by the Same Animus – His Desire to Possess a Gun

{¶ 33} Beverly’s Third Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS 17 AND 18

OF DEFENDANT’S CONVICTION AS THOSE COUNTS CONSTITUTE ALLIED

OFFENSES OF SIMILAR IMPORT.

{¶ 34} Beverly contends that the trial court erred when it failed to merge Counts 17 and
 14

18, which were the Receiving Stolen Property and Having a Weapon While Under a Disability

offenses. R.C. 2941.25, concerning allied offenses of similar import, provides:

(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.

{¶ 35} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the

Supreme Court of Ohio revisited the analysis courts should use in determining whether offenses

are allied offenses of similar import. Johnson overruled State v. Rance, 85 Ohio St.3d 632, 710

N.E.2d 699 (1999) “to the extent that it calls for a comparison of statutory elements solely in the

abstract under R.C. 2941.25.” Johnson at ¶44. Now, “[w]hen determining whether two offenses

are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.” Id.

{¶ 36} Johnson states that “the intent of the General Assembly is controlling.” Id. at

¶46. “We determine the General Assembly’s intent by applying R.C. 2941.25, which expressly

instructs courts to consider the offenses at issue in light of the defendant’s conduct.” Id. The

trial court must determine prior to sentencing whether the offenses were committed by the same
 15

conduct. The trial court is no longer required to perform hypothetical or abstract comparisons of

the offenses at issue in order to conclude that the offenses are subject to merger. Id. at ¶47 “In

determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the

question is whether it is possible to commit one offense and commit the other with the same

conduct, not whether it is possible to commit one without 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.” Id. at ¶48.

(Emphasis in original, and internal citation omitted).

{¶ 37} “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.’” Id. at ¶49 (citation omitted). “If the answer to both

questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id. at

¶50. “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.” Id. at ¶51. (Emphasis in original.)

{¶ 38} Beverly’s conduct in taking possession of the firearm completed both offenses.

To be sure, each offense has additional elements. The Receiving Stolen Property offense has the

additional element of “knowing or having reasonable cause to believe that the property [was]

obtained through the commission of a theft offense.” R.C. 2913.51(A). The Having a Weapon

While Under a Disability offense has the additional element that the offender must be under

indictment or have been convicted of a felony offense of violence. R.C. 2923.14(A)(2). Under
 16

State v. Rance, supra, these would not be allied offenses, because each contains an element not

contained by the other.

{¶ 39} State v. Johnson, supra, overruled Rance, with its elements-of-the-offense based

analysis, replacing it with an analysis based on the defendant’s conduct. In Johnson, the

Supreme Court recognized that the allied-offenses statute sets forth the defendant’s conduct as

the basis for analysis, not the elements of the offenses. State v. Johnson, at ¶ 44. Here,

Beverly’s conduct in taking possession of the firearm consummated his commission of both

offenses.

{¶ 40} The next step of the analysis is to determine whether Beverly committed the two

offenses with a separate animus as to each. R.C. 2941.25(B). We conclude that he did not.

{¶ 41} The Supreme Court of Ohio has interpreted the term “animus” to mean “purpose

or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d

1345 (1979); see also, e.g., State v. Smith, 7th Dist. Mahoning No. 11 MA 120, 2013-Ohio-756,

¶ 89; State v. Harding, 3d Dist. Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 14; State v. Cowan, 8th

Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 37; State v. LaPrairie, 2d Dist. Greene No.

2010-CA-09, 2011-Ohio-2184, ¶ 41. “Like all mental states, animus is often difficult to prove

directly, but must be inferred from the surrounding circumstances. * * * Where an individual’s

immediate motive involves the commission of one offense, but in the course of committing that

crime he must, A priori, commit another, then he may well possess but a single animus, and in

that event may be convicted of only one crime ” Logan at 131. “If the defendant acted with the

same purpose, intent, or motive in both instances, the animus is identical for both offenses.”

State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.
 17

{¶ 42} The evidence established that Beverly came into possession of a gun; the gun

was stolen, and Beverly was not allowed to possess it due to a legal disability. However, there is

nothing to suggest that Beverly possessed the gun with distinct motives both to have a stolen gun

and to have one while under disability; he simply wanted to possess a gun. The offenses

occurred simultaneously and, based upon the evidence in the record, one offense did not

temporally precede or extend beyond the other. Compare State v. Brown, 3d Dist. Allen No.

1-12-33, 2013-Ohio-854, ¶ 18 (defendant’s possession of firearm after committing burglary

demonstrated separate animus for having weapon while under disability); State v. Young, 2d Dist.

Montgomery No. 23642, 2011-Ohio-747 (having a weapon while under disability, carrying a

concealed weapon, and illegal possession of a firearm in a liquor permit premises did not merge,

where defendant acquired the weapon prior to concealing it, and then later brought it into a liquor

establishment); State v. Bray, 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, ¶ 23 (same).

{¶ 43} The circumstances here are analogous to those in State v. Fairfield, 8th Dist.

Cuyahoga No. 97466, 2012-Ohio-5060, in which a defendant was charged with multiple counts

of Possession of a Dangerous Ordnance, Possession of Criminal Tools, and Receiving Stolen

Property, among other charges. These charges arose from the defendant’s possession of shock

tubes, detonation cords, blasting caps, and an actuator, all of which were explosive devices that

had been stolen from the United States government while the defendant was in the Army. The

trial court merged “the category of offenses for the items that were the same. For instance, the

court merged all of the counts for possession of a dangerous ordnance regarding the four

detonation cords. However, the court then also sentenced Fairfield for possession of criminal

tools and receiving stolen property regarding the same cords.” Id. at ¶ 26.
 18

{¶ 44} On appeal, the Eighth District Court of Appeals held that the defendant’s

offenses of Possession of Criminal Tools, Possession of a Dangerous Ordnance, and Receiving

Stolen Property were allied offenses of similar import. The court noted that, under Johnson,

“[o]ur focus is now whether it is possible for the offenses to be committed by the same conduct.”

Id. The court concluded that defendant’s “receiving the stolen property in the instant case,

results in him also unlawfully possessing a dangerous ordnance and possessing a criminal tool.”

Id. The court then concluded that the defendant had not acted with a separate animus in

committing each offense. The court stated: “Here, there is no indication that Fairfield was

acquiring the materials for separate purposes, or had a separate intent or motive in having the

materials. Therefore, the offenses were all committed with the same animus.” Id. at 28. The

court concluded that, “under the facts of this case, possession of a dangerous ordnance,

possession of criminal tools, and receiving stolen property are allied offenses of similar import

that must be merged.”1 Id. at ¶ 29.

{¶ 45} In this case, Beverly possessed a stolen gun while he was under a legal disability

from doing so. His immediate motive was to possess a gun. There is no indication that Beverly

had multiple purposes that would distinguish his having a weapon while under disability from

receiving stolen property. The facts that this particular gun was stolen and that Beverly was

under disability when he got the gun simply resulted in the State’s ability to charge him with

multiple offenses as a result of Beverly’s possession of the gun; it did not create a separate

animus.

1
The State appealed and asked the Supreme Court of Ohio to review whether Possession of a Dangerous Ordnance
and Receiving Stolen Property were allied offenses of similar import. The Supreme Court declined to accept jurisdiction. State
v. Fairfield, S.Ct. No. 2012-2103, 2013-Ohio-902 (March 13, 2013).
 19

{¶ 46} Because the two offenses were not committed each with a separate animus, the

trial court erred when it failed to merge them for sentencing purposes. Beverly’s Third

Assignment of Error is sustained.

V. The 66½-year Sentence Imposed in this Case

Constitutes an Abuse of Discretion

{¶ 47} Beverly’s Fourth and Fifth assignments of error are as follows:

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A

SENTENCE OF 66 ½ YEARS ON THE DEFENDANT.

THE TRIAL COURT ERRED IN IMPOSING A SENTENCE UPON THE

DEFENDANT THAT WAS NOT CONSISTENT WITH SENTENCES FOR SIMILAR

CRIMES COMMITTED BY SIMILAR OFFENDERS.

{¶ 48} In his Fourth Assignment of Error, Beverly contends that the trial court abused

its discretion when it sentenced him to 66½ years in prison. In his Fifth Assignment of Error,

Beverly contends that the trial court’s imposition of an aggregate sentence of 66½ years is error,

because his co-defendant, Imber, received a significantly shorter sentence for essentially the same

conduct.2

{¶ 49} In State v. Barker, 2d Dist. Montgomery No. 22779, 2009-Ohio-3511, at ¶ 36-37,

we stated:

“ ‘The trial court has full discretion to impose any sentence within the

2
After pleading guilty to ten fourth-degree felony offenses, the trial court
sentenced Imber to thirteen and one-half years in prison.
 20

authorized statutory range, and the court is not required to make any findings or

give its reasons for imposing maximum, consecutive, or more than the minimum

sentences. State v. Foster, 109 Ohio St.3d 1, * * * 2006-Ohio-856, at paragraph

7 of the syllabus. Nevertheless, in exercising its discretion the trial court must

consider the statutory policies that apply to every felony offense, including those

set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, * * *

2006-Ohio-855, at ¶ 37.’ ” State v. Ulrich, 2d Dist. Montgomery No. 23737,

2011-Ohio-758, at ¶ 20-21. “[E]ven if there is no specific mention of [R.C.

2929.11 and R.C. 2929.12], ‘it is presumed that the trial court gave proper

consideration to those statutes.’ ” State v. Hall, 2d Dist. Clark No. 10-CA-23,

2011-Ohio-635, ¶ 51.

{¶ 50} “ ‘When reviewing felony sentences, an appellate court must first determine

whether the sentencing court complied with all applicable rules and statutes in imposing the

sentence, including R.C. 2929.11 and 2929.12, in order to find whether the sentence is contrary

to law. State v. Kalish, 120 Ohio St.3d 23, * * * , 2008-Ohio-4912. If the sentence is not clearly

and convincingly contrary to law, the trial court’s decision in imposing the term of imprisonment

must be reviewed under an abuse of discretion standard. Id.’ ” State v. Ulrich, 2d Dist.

Montgomery No. 23737, 2011-Ohio-758, at ¶ 22. Beverly’s sentence is not contrary to law.

We therefore review his sentence under an abuse-of-discretion standard.

{¶ 51} Since at least 1940, innumerable Ohio cases have stated that an abuse of

discretion “means more than an error of law or judgment,” which incorrectly implies that a trial

court may commit an error of law without abusing its discretion. State v. Bowles, 2d Dist.
 21

Montgomery No. 23037, 2010-Ohio-278, ¶ 15, citation omitted. To the contrary, “[n]o court –

not a trial court, not an appellate court, nor even a supreme court – has the authority, within its

discretion, to commit an error of law.” Id. at ¶ 26. The abuse-of-discretion standard is more

accurately defined as “ ‘[a]n appellate court’s standard for reviewing a decision that is asserted to

be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’ ” Id. at ¶ 18, quoting

Black’s Law Dictionary, Eighth Edition (2004), at 11.

{¶ 52} Upon sentencing Beverly, the trial court stated the following as its apparent

rationale for imposing the sentence it ordered:

By my calculations, all of your crimes, there is [sic] fifteen distinct victims

and that doesn’t even include households that are occupied by more than one

person.

Nor does it include the law enforcement officers whose health and safety

and lives you put at risk while you were fleeing; nor does that include the women

and children in these homes that you burglarized that no longer have a sense of

security in their own homes.

Nor does that take into consideration probably the hundreds maybe even

thousands of hours of time and effort spent by our local law enforcement agencies,

tracking down all the property that you stole from people, organizing it, trying to

return it to the rightful owners.

The Court is going to order that Counts 1, 9, 10, 12, 13, 14, 15, 18, 21, 22,

23, 24, [and] 25 run consecutively to one another.

The Court is going to order that Counts 2, 3, 5, 11, 16, 17, and 19 run
 22

consecutively to one another but concurrent with the previous list of counts that I

mentioned.

***

The aggregate sentence by my calculations will be sixty-six and one-half

years (66 ½ years) in the Ohio State Penitentiary.

{¶ 53} A pre-sentence investigation report was not prepared in this case. At sentencing,

the State informed the trial court on the record of Beverly’s criminal record, dating back to

when he was thirteen years old. The State also noted that at the time of his arrest and indictment

in this case, Beverly was under indictment in a separate case for manufacturing drugs.

{¶ 54} In outlining the reasons for the sentence it imposed, the trial court did not

mention Beverly’s prior criminal history. Instead, the trial court noted the number of households

victimized, the number of people whose personal property was stolen or damaged, and the loss of

a sense of security by his victims, which was compromised as a result of Beverly’s crimes.

While these considerations were proper, the trial court also sought to justify Beverly’s lengthy

sentence by noting that law enforcement officers put in “hundreds[,] maybe even thousands[,] of

hours of time and effort” spent by law enforcement agencies in investigating and tracking down

all of the property stolen, organizing it, and trying to return said property to its rightful owners.

We conclude that the amount of police work involved should not have formed a basis to increase

Beverly’s sentence. The police officers, detectives, and other law enforcement officials

involved were performing their respective jobs conducting the investigation, cataloguing, and

retrieving the items stolen by Beverly and Imber.

{¶ 55} Fortunately, none of the victims suffered any physical injury. Although the
 23

anger, fear, and disturbances experienced by the victims may properly be considered, there is

nothing in the record to suggest that these psychological injuries were qualitatively greater than

those predictably experienced by any victim of a burglary, or that the victims are unlikely to

overcome these effects within a reasonable period of time. We also note that the lack of a

pre-sentence investigation report in a case of this nature makes it harder to fashion a sentence

consistent with the statutory sentencing factors and guidelines found in R.C. 2929.11 and

2929.12.

{¶ 56} We do not seek to minimize the criminality of Beverly’s actions and the wrong

done to his victims. Nevertheless, treating this case as if these crimes were the most serious

forms of the offenses, and treating Beverly as if he were the most depraved of offenders, is not

supported by the evidence in the record. The imposition of the 66½-year sentence in this case

deprecates the validity of similar harsh sentences in those cases that truly merit them. As

Justice Lanzinger has written, “[i]t is a rare victim who does not consider the crime committed by

an offender to be undeserving of a maximum penalty. * * * It will take a courageous judge not to

‘max and stack’ every sentence in multiple-count cases.” State v. Hairston, 118 Ohio St.3d 289,

2008-Ohio-2338, 888 N.E.2d 1073, at ¶31 (Lanzinger, J., concurring).

{¶ 57} Finally, Beverly argues that his co-defendant, Imber, who plead guilty, received a

more lenient sentence. Specifically, Imber entered guilty pleas to ten fourth-degree felony

offenses and received an aggregate sentence of thirteen and one-half years in prison, less than a

quarter of the sentence Beverly received. State v. Imber, 2d Dist. Clark No. 11 CA 0063,

2012-Ohio-372. Although there is no information in the record to indicate whether Imber had a

prior record, the evidence in the record established that Imber was equally culpable with Beverly
 24

regarding the charged offenses. On this record, a disparity of over 50 years suggests the

appearance of a trial tax, whereby one reason for Beverly’s much harsher sentence was that he

exercised his right to a jury trial.

{¶ 58} We conclude that although Beverly’s sentence is not contrary to law, the

evidence in the record does not justify the lengthy sentence imposed herein. Accordingly, we

conclude that the trial court abused its discretion when it imposed a sentence of 66½ years in this

case.

{¶ 59} Beverly’s Fourth Assignment of Error is sustained; his Fifth Assignment of Error

is overruled as moot.

VI. Conclusion

{¶ 60} Beverly’s First Assignment of Error having been overruled; his Second, Third

and Fourth assignments of error having been sustained; and his Fifth Assignment of Error having

been overruled as moot, his conviction and sentence for Engaging in a Pattern of Corrupt

Activity is Reversed and Vacated; his sentence is Reversed; and this cause is Remanded for the

merger of the Receiving Stolen Property and Having a Weapon While Under a Disability

convictions and for re-sentencing.

..........

FROELICH, J., concurs.

DONOVAN, J., concurring in part and dissenting in part:

{¶ 61} I disagree solely with the majority’s resolution of the third assignment of error

regarding merger of the Receiving Stolen Property and Having a Weapon While Under a
 25

Disability offenses. Beverly acquired the legal disability that prevents him from possessing a

firearm long before he came into possession of this stolen gun. The Weapons Under Disability

statute punishes Beverly for his own past conduct as well as his current conduct.

{¶ 62} Furthermore, the gravamen of the receiving stolen property charge is the

acquisition of a stolen gun which necessitates a mens rea distinct from acquiring of a gun while

under legal disability. Non-merger in this case would not run afoul of the General Assembly’s

intent under R.C. 2923.13 to protect the general public from “bad risks” such as Beverly from

having a weapon. Nor would it offend the purpose of R.C. 2941.25 to prevent shotgun

convictions.

..........

Copies mailed to:

Lisa M. Fannin
Marshall G. Lachman
Hon. Douglas M. Rastatter

Case Name: State of Ohio v. Jordan Beverly
Case No.: Clark App. No. 2011 CA 64
Panel: Fain, Donovan, Froelich
Author: Mike Fain
Summary: