[Cite as State v. Brewer, 2012-Ohio-3899.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-11-13
v.
WILLIAM JOSEPH BREWER, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 11-CR-0035
Judgment Affirmed
Date of Decision: August 27, 2012
APPEARANCES:
Howard A. Elliott for Appellant
Jonathan K. Miller for Appellee
Case No. 16-11-13
PRESTON, J.
{¶1} Defendant-appellant, William Joseph Brewer, Jr., appeals the
Wyandot County Court of Common Pleas’ judgment entry of conviction and
sentence. For the reasons that follow, we affirm.
{¶2} On June 15, 2011, the Wyandot County Grand Jury indicted Brewer
on Count One of breaking and entering in violation of R.C. 2911.13(A), a fifth
degree felony; Count Two of theft in violation of R.C. 2913.02(A)(1), a fifth
degree felony; and Count Three of possessing criminal tools in violation of R.C.
2923.24(A), a fifth degree felony. (Doc. No. 1).
{¶3} On June, 16, 2011, Brewer entered pleas of not guilty at arraignment.
(Doc. No. 7). On June 21, 2011, Brewer filed a written plea of not guilty. (Doc.
No. 8).
{¶4} A jury trial was scheduled for July 28, 2011; however, on July 5,
2011, Brewer, through counsel, filed a motion for a continuance and explicitly
waived his speedy trial rights. (Doc. Nos. 11-12). The trial court granted the
motion and continued the trial to October 18-19, 2011. (Doc. No. 13).
{¶5} On August 23, 2011, Brewer, pro se, filed a motion to dismiss the
indictment for an alleged violation of his speedy trial rights. (Doc. No. 27).
Brewer alleged that he gave his attorney consent to continue the trial but only until
August 19, 2011, prior to the expiration of his speedy trial time. (Id.).
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{¶6} On August 31, 2011, the trial court held a hearing on Brewer’s motion
to dismiss. (Doc. No. 31). During the hearing, the trial court granted Brewer’s
attorney permission to withdraw as counsel, and, thereafter, denied the motion to
dismiss based upon counsel’s previously filed motion for continuance. (Id.).
{¶7} On September 21, 2011, the trial court appointed Brewer another
attorney after Brewer failed to retain private counsel. (Doc. No. 37). On that same
day, the newly-appointed attorney filed a motion for a continuance of the trial.
(Doc. No. 39). The trial court granted the motion the next day and rescheduled
trial for October 19-20, 2011. (Doc. No. 40).
{¶8} On October 12, 2011, Brewer filed a motion to withdraw appointed
counsel citing a complete breakdown in the attorney-client relationship. (Doc. No.
73). The trial court held a hearing and denied the motion that same day, but the
trial court granted a continuance for Brewer to prepare for trial with his attorney.
(Doc. No. 77).
{¶9} On November 7, 2011, the trial court granted the State’s motion to
amend Count Two of the indictment to replace “$500.00” with “$1,000.00” and
replace “$5,000.00” with “$7,500.00” for purposes of the value of the items
stolen. (Doc. No. 99).
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{¶10} The matter proceeded to jury trial on November 9-10, 2011. The
jury found Brewer guilty on all three counts. (Doc. Nos. 101-103). On November
15, 2011, the trial court entered a judgment entry of conviction. (Doc. No. 107).
{¶11} On November 16, 2011, the trial court sentenced Brewer to 11
months on each count. (Doc. No. 108). Since Brewer was on post-release control
when he committed the offenses, the trial court terminated Brewer’s post-release
control and imposed a 12-month sentence for his violation of post-release control.
(Id.). The trial court ordered that the terms imposed on Counts One, Two, and
Three, as well as the term imposed for the violation of Brewer’s post-release
control, be served consecutively for an aggregate sentence of 45 months. (Id.).
{¶12} On November 23, 2011, Brewer filed a notice of appeal. (Doc. No.
112). Brewer now appeals raising five assignments of error for our review. We
will combine Brewer’s first and fifth assignments of error for discussion.
Assignment of Error No. 1
The appellant was denied effective assistance of counsel by
virtue of the failure of trial counsel to review key components of
evidence with the appellant in advance of trial such that the
confidence of the outcome and the ability of the appellant to
make an informed decision was undermined and eviscerated.
Assignment of Error No. 5
The appellant’s speedy trial rights derived under Ohio Revised
Code §2945.71 were violated when counsel for the appellant
inadvertently and contrary to the appellant’s express authority,
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filed with the Court a waiver of speedy trial rights and as such
provided ineffective assistance of counsel to the appellant.
{¶13} In his first assignment of error, Brewer argues that he was denied
effective assistance of trial counsel because trial counsel failed to show him the
surveillance video of the crime scene. Specifically, Brewer argues that, had he
seen the surveillance video which showed his vehicle at the crime scene, he may
have taken a plea deal. In his fifth assignment of error, Brewer argues that his first
appointed trial counsel was ineffective for filing the July 5, 2011 continuance
motion thereby waiving his speedy trial rights.
{¶14} A defendant asserting a claim of ineffective assistance of counsel
must establish that counsel’s performance was deficient or unreasonable under the
circumstances, and counsel’s deficient performance prejudiced him. State v. Kole,
92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). Prejudice results when “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142
(1989), citing Strickland at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
{¶15} In order to show counsel’s conduct was deficient or unreasonable,
the defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
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prompted by reasonable professional judgment. Strickland at 687. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).
Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. Bradley at 141-142, citing State v. Lytle, 48
Ohio St.2d 391, 396 (1976).
{¶16} The State first provided Brewer with discovery on June 28, 2011 and
supplemental discovery on July 19, 2011. (Doc. Nos. 10, 14). During the August
31, 2011 hearing prior to trial, Brewer’s first attorney, Shane M. Leuthold,
indicated that he had spent 2½ hours going over discovery items with Brewer,
including DVDs. (Aug, 31, 2011 Tr. at 6-7). Brewer did not contradict this
statement at the hearing. (Id.). During the October 11, 2011 motion hearing, after
Leuthold withdrew from the case, the State represented to the trial court that it
“took great pains to make arrangements with Mr. Leuthold at the jail and Mr.
Brewer to show the surveillance video from the store.” (Oct. 11, 2011 Tr. at 5-7).
Brewer’s newly appointed counsel, Randy Hoffman, confirmed that the State had
previously supplied Leuthold a copy of the surveillance video. (Id. at 6). At the
October 24, 2011 hearing, Hoffman represented to the trial court that he met with
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Brewer for “a little over two hours,” and that counsel “watched the video a couple
times.” (Oct. 24, 2011 Tr. at 8). At sentencing, Hoffman indicated that “[i]t was
his understanding that a flash drive was brought from the prosecutor’s office to
have [Brewer] see it.” (Nov. 16, 2011 Tr. at 7). Brewer admitted that “the
prosecutor sent an assistant over there with a copy of the flash drive and set us up
with a computer from the prosecutor’s office”; though, Brewer alleged that the
video he saw was not the same video that was played during the trial. (Id. at 8-9).
{¶17} Based upon the foregoing, we conclude that the record demonstrates
that Brewer was provided an opportunity to watch the surveillance video prior to
trial contrary to his bald assertions otherwise. Therefore, the record fails to
demonstrate that counsel was deficient for failing to show him the evidence
against him prior to trial. Furthermore, Brewer has failed to demonstrate prejudice
in this case beyond merely speculating that he might have entered into a plea
agreement.
{¶18} Brewer’s argument that trial counsel was ineffective for seeking a
continuance of the trial also lacks merit. The record indicates that Leuthold
requested to continue Brewer’s trial because Leuthold had three previously
scheduled jury trials for the same day. (Doc. No. 12); (Feb. 2, 2012 Tr. at 4).
Consequently, the continuance request was necessary if Leuthold was to continue
his representation of Brewer. Aside from that, whether to request a continuance,
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and thereby waiving a defendant’s speedy trial time, is a matter of trial strategy
and not ineffective assistance, even when the continuance is filed without the
defendant’s consent. State v. Mitchell, 10th Dist. No. 10AP-756, 2011-Ohio-3818,
¶ 53, citing State v. Hill, 10th Dist. No. 09AP-398, 2010-Ohio-1687, ¶ 13. Brewer
has failed to demonstrate how he was prejudiced by the continuance and the
waiver of his speedy trial rights as well.
{¶19} Brewer’s first and fifth assignments of error are, therefore, overruled.
Assignment of Error No. 2
The evidence of the property taken as a result of the theft offense
was not presented with sufficient clarity and precision in order
for the trier of fact to ascertain beyond a reasonable doubt a
sufficient quantity and value of property to establish the
threshold of a felony offense, that of an amount over $1,000.00,
in that taxes were included in the value of the property and no
adjustment was made to separate out that issue from the value of
the goods in question.
{¶20} In his second assignment of error, Brewer argues that the State failed
to submit evidence demonstrating that the value of the stolen cigarettes was over
$1,000. Additionally, Brewer argues that the testimony concerning the value of
the stolen cigarettes inappropriately included taxes contrary to the rule in State v.
Adams, 39 Ohio St.3d 186 (1988), syllabus.
{¶21} When reviewing the sufficiency of the evidence, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
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the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259
(1981), paragraph two of the syllabus.
{¶22} Brewer was convicted of theft in violation of R.C. 2913.02(A)(1),
which provides, in pertinent part, “[n]o person, with purpose to deprive the owner
of property * * * shall knowingly obtain or exert control over * * * the property *
* * [w]ithout the consent of the owner or person authorized to give consent * * *.”
If the value of the property stolen is $1,000 or more but less than $7,500 hundred,
the theft offense is a fifth degree felony. R.C. 2913.02(B)(2).
{¶23} At trial, the store owner, Unmesh Brahmbhatt, and the store
manager, Terri Born, both testified that, based upon the inventory records before
and after the crime, 137 cartons of cigarettes were stolen. (Nov. 9-10, 2011 Tr. at
162, 298). Born further testified that she watched the surveillance video and
discovered that the suspect used an empty trash can to load and carry cartons of
cigarettes from the store. (Id. at 156, 161). Born testified that she attempted to
duplicate the manner in which the suspect stole the cigarettes and determined that
“over fifty cartons” could be loosely loaded into a trash can. (Id. at 156).
Brahmbhatt brought a trash can from the convenience store with 50 cartons of
cigarettes to the trial court for the jury to observe. (Id. at 298-301). The trash can
was less than half-full, according to Brahmbhatt. (Id. at 301). Born provided a list
of the different brands of cigarettes stolen and their price per carton, which was
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admitted into evidence at trial. (Id. at 157); (State’s Ex. 16). Virginia Slims, the
most expensive carton of cigarettes, were $53.83/carton; Pyramid, the least
expensive carton of cigarettes, were $34.35/carton. (Nov. 9-10, 2011 Tr. at 158);
(State’s Ex. 16).
{¶24} Construing this evidence in a light most favorable to the State, the
record contains evidence from which a rational trier of fact could conclude that the
value of the property Brewer stole exceeded $1,000. The value of 137 cartons of
Virginia Slims, the most expensive cigarettes, is $7,374.71. Even taking the
evidence in a light most favorable to Brewer, the value of 50 cartons of Pyramid
cigarettes, the least amount of the cheapest brand of cigarettes, is $1,717.50—well
over the $1,000 felony threshold.
{¶25} Brewer next argues that the price of the cigarettes inappropriately
included taxes contrary to the rule in State v. Adams, 39 Ohio St.3d 186. The Ohio
Supreme Court in Adams held that “Ohio sales tax shall not be included in the
determination under R.C. 2913.61(D)(2) of the replacement cost of stolen personal
effects and household goods.” 39 Ohio St.3d 186, syllabus (emphasis added).
The Court concluded that Ohio sales tax should not be included for purposes of
computing the value of stolen property, because Ohio sales tax is subject to
multiple exemptions, i.e., churches, non-profits, the State, and its political
subdivisions, and thus, not automatically added to every sale of personal goods. Id.
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at 187. The Court reasoned that it was conceivable that a defendant who stole an
item from a person/entity subject to Ohio sales tax could be convicted of a felony;
whereas, a defendant who stole the same item from a tax-exempt person/entity
could only be convicted of a misdemeanor. Id. at 188. The Court concluded that
such an unequal application of R.C. 2913.51 violates the “uniform operation”
requirement of Section 26, Article II of the Ohio Constitution. Id. at 187-188.
{¶26} Adams has no application here. Brewer is not alleging that Ohio
sales tax was included for purposes of calculating the value of the cigarettes he
stole. Rather, Brewer is alleging that the value of the cartons of cigarettes should
not have included the excise tax levied under R.C. 5743.02. The excise tax levied
under R.C. 5743.02 is not subject to multiple exemptions like Ohio sales tax and is
not subject to the same “uniform operation” violation identified in Adams.
{¶27} Brewer’s second assignment of error is, therefore, overruled.
Assignment of Error No. 3
Whether the evidence and facts surrounding the Appellant’s
prior conviction admitted under Evidence Rule 404(B) to show
the identity of the Appellant did not have sufficient unique
details which could be matched to the offense charged in order
to establish the Appellant’s identity in the offense charged and
improperly served to attack the Appellants [sic] character.
{¶28} In his third assignment of error, Brewer argues that the trial court
abused its discretion by allowing evidence at trial of his prior breaking and
entering conviction under Evid.R. 404(B) to establish his identity.
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{¶29} “‘The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.’” State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, ¶ 74, quoting State v. Sage, 31 Ohio St.3d 173 (1987), paragraph
two of the syllabus. An abuse of discretion is more than an error of judgment;
rather, it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Adams, 62 Ohio St.2d at 157.
{¶30} “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.”
Evid.R. 404(B). However, it may be admissible for proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Id.
{¶31} “‘Other acts’ may be introduced to establish the identity of a
perpetrator by showing that he has committed similar crimes and that a distinct,
identifiable scheme, plan, or system was used in the commission of the charged
offense.’” State v. Lowe, 69 Ohio St.3d 527, 531 (1994), quoting State v. Smith,
49 Ohio St.3d 137, 141 (1990). While it is unnecessary that the other acts be the
same or similar crime as the defendant is presently charged, the “the other-acts
evidence must be related to and share common features with the crime in
question” demonstrating a modus operandi, or “behavior fingerprint,” identifiable
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with the defendant. Lowe, 69 Ohio St.3d at 531, citing State v. Jamison, 49 Ohio
St.3d 182 (1990), syllabus; State v. Hutton, 53 Ohio St.3d 36, 40 (1990).
{¶32} In the present case, Brewer was convicted for breaking and entering
the convenience store at a Shell gas station by smashing the front glass door of the
store around 2:42 a.m. on May 16, 2011. (Nov. 9-10, 2011 Tr. at 111, 172).
Brewer used an empty trash can from the gas station to load and carry 137 cartons
of cigarettes from the store to the trunk of his vehicle. (Id. at 156, 161-162, 173,
192, 298). During the commission of the offense, Brewer covered his face with a
mask and used gloves to cover his hands. (Id. at 116, 119, 161, 173, 190-195).
Carey Police Officer Collins pursued Brewer as he was leaving the crime scene,
but, after Brewer drove out of Collin’s line of sight, Brewer drove his vehicle off
the road 300 yards into a muddy field. (Id. at 111-112, 126, 129, 197). Brewer’s
vehicle was later found abandoned in the field, only about six-tenths of a mile
from the convenience store. (Id. at 107, 126, 146, 168, 204). Law enforcement did
not find any cartons of cigarettes in Brewer’s vehicle but did find a piece of glass
similar to the broken glass found at the crime scene. (Id. at 126-127, 201, 207).
{¶33} During the trial, Findlay Police Officer Shawn Nungester testified
that, in February 2008, Brewer was apprehended after breaking and entering into a
gas station convenience store around 4:00 a.m. (Id. at 215-220). Nungester
testified that, during the commission of the February 2008 offense, Brewer wore a
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mask and gloves; Brewer gained entrance to the store by breaking the glass front
door of the store; and, Brewer carried and loaded cartons of cigarettes from the
store into the trunk of his car using a trash can. (Id.). Brewer was apprehended
when he drove his vehicle into a muddy field and became stuck while trying to
evade law enforcement’s pursuit. (Id. at 217).
{¶34} Based upon the foregoing, we cannot conclude that the trial court
abused its discretion by allowing Officer Nungester’s testimony concerning
Brewer’s 2008 breaking and entering conviction. To commit both offenses,
Brewer broke a glass door to gain entrance to a gas station convenience store
where he used a trash can he found on the scene to load and carry cartons of
cigarettes to his vehicle. Brewer also drove his vehicle into a field to escape law
enforcement and abandoned his vehicle while attempting to evade the police in
both cases. Consequently, Officer’s Nungester’s testimony was offered to
demonstrate a “unique, identifiable plan of criminal activity” to establish Brewer’s
identity under Evid.R. 404(B); and therefore, the trial court did not abuse its
discretion by admitting the other acts testimony. Jamison, syllabus.
{¶35} Brewer’s third assignment of error is, therefore, overruled.
Assignment of Error No. 4
Whether the conviction of the Appellant, for companion
charges of breaking and entering, theft, and criminal tools
given the fact that they arose out of a single transaction and
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with a single animus must have been merged as allied offenses
of similar import for purposes of sentencing.
{¶36} In his fourth assignment of error, Brewer argues that the trial court
erred by failing to merge all of his offenses under R.C. 2941.25 and State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
{¶37} Whether offenses are allied offenses of similar import presents a
question of law we review de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-
Ohio-5733, ¶ 15. R.C. 2941.25, Ohio’s multiple-count statute, provides in
relevant part:
(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, * * * and the defendant may be
convicted of all of them.
{¶38} Whether offenses are allied offenses under R.C. 2941.25 is a two-
part inquiry. Johnson, 2010-Ohio-6314, at ¶ 47-51. First, the court must
determine “whether it is possible to commit one offense and commit the other with
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the same conduct, not whether it is possible to commit the one without committing
the other.” Id. at ¶ 48, citing State v. Blankenship, 38 Ohio St.3d 116, 119 (1988).
This first inquiry does not require the court to engage in hypothetical or abstract
comparison of the offenses at issue. Id. at ¶ 47. Rather, “[i]f 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.
{¶39} If the court answers the first inquiry in the affirmative; then second,
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,
citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J.,
dissenting).
{¶40} If the court answers both the first and second questions affirmatively,
then the offenses are allied offenses of similar import and will be merged. Id. at ¶
50.
{¶41} However, “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 the offenses will not merge. Id. at ¶ 51, citing R.C. 2941.25(B).
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{¶42} As used in R.C. 2941.25(B), “animus” means “purpose or, more
properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131 (1979).
{¶43} Brewer was convicted of breaking and entering under R.C.
2911.13(A); theft under R.C. 2913.02(A)(1); and possessing criminal tools under
R.C. 2923.24(A). To be convicted of breaking and entering, the State was
required to prove that Brewer, “by force, stealth, or deception,” trespassed in an
unoccupied structure “with purpose to commit therein any theft offense * * * or
any felony.” R.C. 2911.13(A). To be convicted of theft, the State was required to
prove that Brewer, “with purpose to deprive the owner of property,” “knowingly
obtain[ed] or exert[ed] control” over the property “[w]ithout the consent of the
owner or person authorized to give consent.” R.C. 2913.02(A)(1). To be
convicted of possession of criminal tools, the State had to prove that Brewer
possessed or had under his control “any substance, device, instrument, or article,
with purpose to use it criminally.” R.C. 2923.24(A).
{¶44} Count Three of the indictment alleged that Brewer possessed the
following criminal tools: a mask, gloves, and “glass-breaking tool.” (Doc. No. 1).
The record contains no bill of particulars. During closing argument, however, the
State argued that Brewer “wore a mask and gloves to conceal his identity, to
prevent any fingerprints being left behind or DNA.” (Nov. 9-10, 2011 Tr. at 366).
The State further argued that Brewer’s criminal purpose for possessing the mask
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and gloves was to “facilitate the crime of breaking and entering to help conceal his
identity.” (Id. at 370). The State also stated that part of Brewer’s modus operandi
was to use a mask and gloves to conceal his identity. (Id. at 374).
Theft and Breaking & Entering
{¶45} Examining the elements of theft in violation of R.C. 2913.02(A)(1)
and breaking and entering in violation of R.C. 2911.13(A), we agree with the
Court of Appeals for the Twelfth District that these offenses cannot be committed
with the same conduct, and therefore, are not allied offenses under R.C.
2941.25(A). State v. Ayers, 12th Dist. Nos. CA2010-12-119, CA2010-12-120,
2011-Ohio-4719, ¶ 34, citing Johnson, 2010-Ohio-6314, at ¶ 51. While it may
have been necessary for Brewer to break into the convenience store to steal the
cartons of cigarettes, the conduct required to commit one of the offenses will never
result in the commission of the other; and therefore, the trial court did not err by
failing to merge these offenses. Id.
Theft and Possession of Criminal Tools
{¶46} It is possible to commit a theft and possess criminal tools with the
same conduct. Johnson, 2010-Ohio-6314, at ¶ 48. For example, when a defendant
uses a drill, pipe cutter, wire cutter, and a wrench to disassemble, detach, and steal
an air conditioning unit from a building, he has committed a theft offense while, at
the same time, possessing criminal tools. State v. Simmonds, 12th Dist. No.
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CA2011-05-038, 2012-Ohio-1479. To reach this conclusion, the Court in
Simmonds noted that it was undisputed that the defendant used the tools during the
commission of the theft, and, after reviewing the bill of particulars and the State’s
closing arguments, it was clear that the State prosecuted the defendant for the
possession of criminal tools based upon his conduct in engaging in the theft. Id. at
¶ 19-23. Consequently, the Court determined that the defendant acted with the
same animus possessing the criminal tools as the theft offense, i.e. to steal the air
conditioning unit from the building; and therefore, the offenses were allied
offenses. Id. at ¶ 23.
{¶47} Next, we must determine whether Brewer possessed the criminal
tools with a separate purpose or motive (animus) from the theft offense. Johnson,
2010-Ohio-6314, at ¶ 51, citing R.C. 2941.25(B); Logan, 60 Ohio St.2d at 131
(“animus” means “purpose or, more properly, immediate motive.”). Simmonds is
instructive on that question. The defendant in Simmonds used the criminal tools to
disassemble and detach the air conditioning unit from the building so he could
exert control over the air conditioning unit to deprive the church of its property,
i.e. to commit the theft offense. During closing arguments, the State argued
Brewer’s immediate motive or purpose for using the mask and gloves, however,
was to conceal his identity and prevent his subsequent apprehension. (Nov. 9-10,
2011 Tr. at 366, 370, 374). Concealing one’s identity and preventing one’s
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subsequent apprehension are distinct and separate purposes or motives (animus)
from committing the theft offense, itself. See State v. Johnson, 1st Dist. No. C-
970180, * 3, Fn. 14 (May 1, 1998) (refusing to get medical treatment for child
victim in order to conceal the crime is a separate animus for endangering children
conviction); State v. Cudgel, 10th Dist. No. 99AP-532, *9 (Mar. 9, 2000) (same);
State v. Siller, 8th Dist. No. 75139, *4 (Oct. 25, 2000) (beating victim to the point
she would not be able to identify the defendant or assist in his apprehension is a
separate animus for attempted murder conviction); State v. White, 135 Ohio
App.3d 481, 490 (dragging a victim from an open place to a concealed place for
cover during a rape constitutes a separate animus for kidnapping conviction).
Therefore, since Brewer possessed the criminal tools in this case with an animus
separate from the theft offense, the trial court did not err by failing to merge the
possession of criminal tools conviction with Brewer’s theft conviction.
Breaking & Entering and Possession of Criminal Tools
{¶48} It is possible to commit the offenses of breaking and entering and
possession of criminal tools with the same conduct and the same animus; for
example, when a defendant uses a crowbar to break into a business to steal metal
for scrap. State v. VanValkenburg, 5th Dist. No. 11-CA-91, 2012-Ohio-1213.
However this case is distinguishable from VanValkenburg because Brewer’s
possession of criminal tools conviction is supported by a separate animus. Brewer
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was not only indicted for possession of criminal tools because he used the “glass-
breaking tool” to gain entrance into the convenience store, but also because he
used the mask and gloves to conceal his identity and to prevent his subsequent
apprehension. (Doc. No. 1). In fact, the State did not even mention Brewer’s use
of the “glass-breaking tool” during closing argument, but instead, focused upon
Brewer’s use of the mask and gloves for the aforementioned purposes. (Nov. 9-10,
2011 Tr. at 366, 370, 374). Brewer’s motive or purpose (animus) of concealing
his identity and preventing his subsequent apprehension was separate and distinct
from his motive or purpose (animus) of breaking and entering. Therefore, the trial
court did not err by failing to merge Brewer’s criminal tools conviction with his
breaking and entering conviction.
{¶49} Brewer’s fourth assignment of error is, therefore, overruled.
{¶50} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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