State v. Leach

[Cite as State v. Leach, 195 Ohio App.3d 433, 2011-Ohio-4745.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

THE STATE OF OHIO,

Appellee,

v.

LEACH,

Appellant.

JUDGES:
Hon. Sheila G. Farmer, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.

Case No. 11 CAA 02 0009

OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR I 07 0348

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 16, 2011
APPEARANCES:

Carole Hamilton O’Brien, Delaware County Prosecuting Attorney, and
Douglas Dumolt, Assistant Prosecuting Attorney, for appellee.

William T. Cramer, for appellant.

WISE, Judge.

{¶ 1} Defendant-appellant, Gregory S. Leach, appeals his conviction and

sentence entered in the Delaware County Common Pleas Court, following a jury trial.

{¶ 2} Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 3} In July 2007, Leach was hired as a retail sales representative by Rex

Gore, the owner of Black Wing Shooting Center. Black Wing Shooting Center is a full-

service, federally licensed firearms dealer and shooting range.

{¶ 4} Black Wing used a point-of-sale system to track its sales and inventory. In

October 2008, Gore directed Robin Salvo, the manager and computer technician for

Black Wing, to implement the security features that they had previously not been using.

These new security features allowed Gore to run audit reports on his point-of-sale

system, making it possible for him to track the activities of each username registered on

the system.

{¶ 5} Upon studying the audit reports, Gore noticed a number of irregular

transactions, including transactions where items had been taken out of the electronic

inventory without authorization. Gore then directed Salvo to determine who had been

altering the inventory numbers. Upon further investigation, Salvo discovered that the
inconsistent inventory transactions had been done under multiple usernames and that

appellant had been working when each of the transactions occurred. Salvo also

discovered that many of the same items that were missing from Black Wing's inventory

had been posted for sale on various web sites by appellant. Further, appellant had

removed a large gun safe from Black Wing's inventory and arranged to have it delivered

to his father's house.

{¶ 6} Gore also noticed a number of voided sales of concealed-carry classes,

which are courses that are required in order to obtain a concealed-weapons permit.

Depending upon when the customer registered, these classes would cost either $150 or

$175. If these classes are later voided, it would create an overage in the register

system. Gore noticed, however, that each of the voided class transactions was either

immediately preceded or followed by a deposit to a layaway account for a rifle under the

name of Stephen Leach, appellant's father. In total, there were seven deposits to the

layaway account, five of which were closely associated with voided concealed-carry

class transactions. Appellant did make two deposits with his debit card towards the

layaway account, amounting to a total of $262.50. The retail price of the rifle was over

$1,000. The entire remaining balance was removed by deposits associated with voided

concealed-carry classes, and each of these transactions was processed under

appellant's username. Once the final deposit from the voided transaction had been

made, appellant removed the rifle from Black Wing and gave it to his father. Gore

stated that he had never reported the rifle as stolen and had never reported a theft of

the firearm to the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives,
because he knew the location of the rifle and appellant’s father had already informed

him that he was going to return it.

{¶ 7} Appellant was accused of a number of improprieties while working at

Black Wing, including the unauthorized removal of various gun accessories and a

Remington rifle from the Black Wing establishment. In all, a total of $17,476 in items

was found to have been “backed out” of inventory, including a couple of high-value

scopes for black guns and a parts kit for a gun.

{¶ 8} As a result of the above actions, appellant Gregory S. Leach was charged

with one count of theft by deception of a firearm from a federally licensed firearms

dealer in violation of R.C. 2913.02(A)(3), one count of theft by deception of a firearm in

violation of 2913.02(A)(3), one count of theft beyond the scope of consent of

merchandise worth more than $5,000 but less than $100,000 in violation of 2913(A)(2),

and one count of tampering with records resulting in a loss of more than $5,000 but less

than $100,000 in violation of 2913.42(A)(1).

{¶ 9} On December 14, 2010, a jury trial commenced in this matter. During the

trial, the charge for theft by deception of a firearm was dropped.

{¶ 10} At trial, the jury heard testimony from Rex Gore, the owner of Black Wing,

Ronald Messick, Shirley Turrill, Robin Salvo, Judy Stadtlander, John Richardson, and

Andrew Loeffler, all employees of Black Wing Shooting Center, Todd Casey, a customer

of Black Wing, and Steven Leach, appellant’s father.

{¶ 11} Ronald Messick, the retail manager for Black Wing, testified that during

the period in question, the retail staff all shared an office. Messick and the other

manager each had his own desk and computer in the office, and there was a third
computer for the retail sale staff to use for paperwork. He testified that during the time

in question, the employees did not always remember to log out after they were done

using the computer and that that practice was not strictly enforced. Messick recalled

that he often saw appellant bring a backpack and a rifle bag or a large duffle bag for

carrying rifles, ammunition, and equipment case to work with him.1 Messick stated that

he thought nothing of it, assuming that appellant was bringing in his personal weapons

to shoot at the range after work or to show to people.

{¶ 12} Shirley Turrill, a salesperson with Black Wing, testified that in April 2009,

she had signed up a doctor from Delaware for a concealed-carry class. The doctor had

paid $175 in cash. Turrill logged the doctor's name into the class log book and noted a

cash payment. She then gave the doctor a receipt and put a duplicate receipt in the

back of the class log book. Turrill stated that later on, she went back to the log book

and noticed that the receipt was missing. . She went to a co-worker, Judy Stadtlander,

and they checked the computer and found that the transaction had been voided under

Turrill's log-in code. Turrill denied that she had voided the transaction and testified that

this could not occur by accident because it required multiple steps. Turrill testified that

the doctor never cancelled the class through her, and he eventually took the class as

originally scheduled.

{¶ 13} Judy Stadtlander similarly testified about the discovery of a voided

concealed-carry-class purchase.

{¶ 14} A Black Wing customer named Todd Casey testified that he had

purchased a number of rifle scopes directly from appellant. Casey testified that when he

began looking at tactical rifles at Black Wing, he was directed toward appellant because
1
At that time, Black Wing did not have a policy of checking employees' bags.
those were his specialty. On one occasion when Casey was looking at scopes,

appellant asked whether he was looking to buy. Casey commented that he had to sell

some of his guns before he could afford scopes. Appellant responded that he had some

extra scopes that he had picked up over time when opportunities arose to buy them at

reduced prices. Appellant was looking to sell some scopes and said that Casey could

look at them and maybe bring in some of his guns to see about getting rid of them.

When Casey was in the store again, appellant informed him that he had the scopes with

him and pulled out a bag with four scopes in it. Although a couple of them were in

boxes, Casey understood that appellant had used them for a short period of time, but

decided he did not want them. Appellant told Casey that he could take them to the back

of the store to look them over. Casey looked them over and told appellant that he was

not sure; he would have to see what he had to mount them on. Appellant told him to

just take them home, give them a try, and get back to him about them. Casey took them

home and reviewed his own collection to see what he could get rid of. He eventually

came back to appellant with a trade for a couple of weapons and some parts. Appellant

agreed, and Casey brought the guns to the store. Appellant told Casey that trading

guns in the store was frowned upon so he directed Casey to just toss them in the trunk

of his car which was parked outside, and they would call it even.

{¶ 15} When presented with a list of items that disappeared from Black Wing,

Casey identified several of them as items that appellant claimed to have in his

collection. Casey also mentioned trading a gun bag for a knife. Casey also indicated

that on a couple of occasions, he called to ask appellant to hold back new items for him,
but appellant said they were not allowed to do that and that instead he would buy the

items himself, and then Casey would pay appellant directly.

{¶ 16} The jury also heard testimony from appellant’s father, Steven Leach, who

testified that he had been a regular customer at Black Wing for a number of years. He

stated that in 2008, he received two guns as Christmas presents from appellant. One

was a handgun, and another was a Remington 700 rifle. Steven testified that at some

point after appellant resigned, he had a conversation with John from Black Wing

concerning those guns and whether appellant had ever paid for them. During that

conversation, Steven also disclosed that appellant had had a Browning gun safe

delivered to his house.

{¶ 17} At the conclusion of the trial, the jury entered a verdict of guilty on all

counts.

{¶ 18} On January 24, 2011, the trial court sentenced appellant to the minimum

sentence on each count: three years for theft by deception of a firearm from a federally

licensed firearms dealer, six months for theft beyond the scope of consent of

merchandise, and six months for tampering with records. The trial court ordered the

sentences to be served consecutively, for an aggregate sentence of four years. The

trial court also ordered restitution in the amount of $23,295.66.

{¶ 19} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶ 20} “I. Defendant's due process rights under the state and federal constitutions

were violated because there was insufficient evidence to support a verdict of guilty of
theft of a firearm where the prosecution merely alleged that defendant used stolen

money to purchase the firearm through a fully and properly documented transaction.

{¶ 21} “II. Defendants [sic] rights to due process and protections from double

jeopardy under the state and federal constitutions were violated when the trial court

failed to merge the convictions for theft and tampering with evidence under R.C.

2941.25.

{¶ 22} “III. Defendant's rights to due process under the state and federal

constitutions were violated when the trial court imposed consecutive sentences on

counts three and four based on the mistaken belief that consecutive sentences were

required.”

I

{¶ 23} In his first assignment of error, appellant argues that there was insufficient

evidence to support a conviction on R.C. 2913.02(A)(3). We disagree.

{¶ 24} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (“sufficiency is the test of

adequacy”); State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. The

standard of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560; Jenks at 273.
 {¶ 25} In this case, appellant is challenging his conviction for theft of a firearm in

violation of R.C. 2913.02, which provides:

{¶ 26} “(A) No person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services in any of the

following ways:

{¶ 27} “ * * *

{¶ 28} “(3) By deception[.]”

{¶ 29} Appellant argues that the state failed to prove any deception, asserting

that the actual purchase of the firearm was properly documented. Appellant further

argues that the alleged deception of fraudulently canceling the concealed-carry class

registrations resulted in a theft of money and not the theft of a firearm. Additionally,

appellant argues that the actual amount of money stolen was only approximately

$1,000, which would only have been classified as a fifth-degree felony rather than the

first-degree felony status assigned for theft of a firearm from a federally licensed firearm

dealer.

{¶ 30} Deception is defined in R.C. 2913.01(A):

{¶ 31} “(A) ‘Deception’ means knowingly deceiving another or causing another to

be deceived by any false or misleading representation, by withholding information, by

preventing another from acquiring information, or by any other conduct, act, or omission

that creates, confirms, or perpetuates a false impression in another, including a false

impression as to law, value, state of mind, or other objective or subjective fact.”

{¶ 32} Upon review, we find that appellant’s actions fall squarely within the

definition of deception. The deceptive scheme hatched by appellant in this case was for
the purpose of making it appear that he had paid for the firearms so that he could

remove them from Blackwing. His scheme prevented Blackwing from “acquiring

information” and learning that he was removing the firearm from the store without having

first paid for it in full.

{¶ 33} Further, we find that no cash was actually stolen or removed from the

store. Instead, appellant voided transactions and followed those voided transactions

with bogus deposits to the firearm he had on a lay-away plan.

{¶ 34} Based on the foregoing, we find appellant’s assignment of error not well

taken, and weoverrule it.

II

{¶ 35} In his second assignment of error, appellant argues that the trial court

erred in not merging appellant’s convictions for theft and tampering with evidence. We

disagree.

{¶ 36} R.C. 2941.25 governs multiple counts and states the following:

{¶ 37} “(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.

{¶ 38} “(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.”
 {¶ 39} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, the

Supreme Court of Ohio held the following:

{¶ 40} “When 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. (State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)”

{¶ 41} Johnson explained:

{¶ 42} “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. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (‘It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses’ [Emphasis sic]). 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.

{¶ 43} “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.’ Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

{¶ 44} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.
 {¶ 45} “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 ¶ 48-51.

{¶ 46} In the instant case, appellant was convicted of one count of theft of a

firearm pursuant to R.C. 2913.02(A)(3) and one count of tampering with records

pursuant to R.C. 2913.42(A)(1), which provide:

{¶ 47} R.C. 2913.02, Theft; aggravated theft

{¶ 48} “(A) No person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services in any of the

following ways:

{¶ 49} “* * *

{¶ 50} “(3) By deception; * * *”

{¶ 51} R.C. 2913.42, Tampering with records

{¶ 52} “(A) No person, knowing the person has no privilege to do so, and with

purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the

following:

{¶ 53} “(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any

writing, computer software, data, or record[.]”

{¶ 54} As specifically noted in Johnson, it is appellant's “conduct” that must be

examined in determining separate animus. Therefore, the issue post-Johnson is

whether the offenses were committed by the same conduct i.e., “ ‘a single act,

committed with a single state of mind.’ ” Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, at ¶ 49, citing State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–4569, ¶ 50

(Lanzinger, J., dissenting).

{¶ 55} With regard to the first prong of the analysis under Johnson, it is

undisputed that it is possible for both counts to be committed with the same act. We will

therefore focus our analysis on the second prong: whether, under the facts of this case,

the offenses were actually committed separately or with a separate animus.

{¶ 56} The animus for the tampering-with-records charge occurred when

appellant manipulated Blackwing’s sales records to show canceled class registrations

followed by deposits made to appellant’s lay-away account.

{¶ 57} The conduct, or animus, for the theft-of-a-firearm-by-deception charge

occurred when appellant physically removed the firearm from the Blackwing premises.

{¶ 58} We therefore find that appellant committed separate and distinct crimes

for which he had a separate animus. Accordingly, the trial court did not err in not

merging the sentences for these counts.

{¶ 59} Appellant’s second assignment of error is overruled.

III

{¶ 60} In his third assignment of error, appellant argues that the trial court erred

in interpreting the theft statute to require the sentences on all counts to be served

consecutively. We disagree.

{¶ 61} Appellant argues that the trial court ordered the sentences on all his

counts to be served consecutively only because it believed it did not have the discretion

to run them concurrently.
 {¶ 62} We have reviewed the trial court’s sentencing entry and the transcript of

the sentencing hearing and find appellant’s arguments unpersuasive.

{¶ 63} At the sentencing hearing, the trial court made the following statements:

{¶ 64} “Mr. Leach, on December 15th, 2010, was found guilty by a jury of theft of

a firearm from a Federally Licensed Firearm Dealer, Count 1. Count 3, theft, felony of

the fourth degree. And Count 4, tampering with records, felony of the fourth degree. And

at that time was referred for a presentence report. And the Court has received that,

reviewed that, considered the principles and purposes of the sentencing. Also took into

consideration the factors, But, in this case, there isn’t much discretion the Court has

since there’s a mandatory prison term, which must be served consecutively to the other

counts.

{¶ 65} “Under 2913(B), you did hold a position of trust and that position related

to the offense, obligated you to prevent the offense or bring others committing any into

justice. It’s certainly in your position to facilitate the offense.

{¶ 66} “The Court also considers recidivism factors related to your history of

criminal convictions. The Court finds you show no remorse for the offense. And I didn’t

find anything indicating recidivism unlikely.

{¶ 67} “Serious factors, again, separate serious, you had knowledge, you held a

position of trust, the offense related to that. Your profession facilitated the offense, the

relation to the victim facilitated the offense. Basically, those all fall under one factor.

{¶ 68} “I don’t find anything indicating it’s less serious than a normal offense.

{¶ 69} “Are you amenable to Community Control, probably you're amenable to

Community Control. But, based on the principles and purposes of sentencing, which is
to punish you, and in doing that keep you from doing something like this again, and to

serve as an example to others, the Court finds that a prison term is necessary here.

And would, therefore, impose three years in prison on Count 1, which is the minimum

prison term. Six months on Count 3, six months on Count 4. All to be served

consecutively.

{¶ 70} “Again, they're all minimum terms, and they're required to be served

consecutively under R.C. § 2913.02(B)(2).”

{¶ 71} Similarly, the trial court, in its sentencing entry, stated:

{¶ 72} “The Court has considered the record, oral statements, any victim impact

statement, and the Pre-sentence Report, the principles and purposes of sentencing

under RC. 2929.11, the seriousness and recidivism factors under RC. 2929.12, and the

need for deterrence, incapacitation, rehabilitation, and restitution.

{¶ 73} “* * *

{¶ 74} “The sentences are Ordered to be served consecutively to one another.”

{¶ 75} Based on the foregoing, we find that the trial court was aware that it had

discretion with regard to Count 2 and Count 4 and that it used its discretion in this

matter to order the sentences to be served consecutively.

{¶ 76} Appellant’s third assignment of error is overruled.

{¶ 77} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Delaware County, Ohio, is affirmed.

Judgment affirmed.

Farmer, P. J., and Edwards, J., concur.