[Cite as State v. Scott,
2024-Ohio-5849.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-23-013
E-23-014
Appellee E-23-015
v. Trial Court No. 2020 CR 0124
2021 CR 0024
Tierace Scott 2021 CR 0094
Appellant DECISION AND JUDGMENT
Decided: December 13, 2024
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Peter Galyardt, for appellant.
…
OSOWIK, J.
{¶ 1} In this consolidated appeal, appellant, Tierace Scott, appeals his sentences
and convictions entered by the Erie County Court of Common Pleas in case Nos. 2020-
CR-124, 2021-CR-24, and 2021-CR-94. For the reasons that follow, the trial court’s
judgment is affirmed in part and reversed in part. Because the offenses of disrupting
public services and tampering with evidence are allied offenses of similar import in case
No. 2021-CR-94, we reverse and vacate those convictions, and remand this case to the
trial in order that the State may elect on which charge to proceed.
Statement of the Case
{¶ 2} A police investigation by multiple law enforcement agencies -- which
involved surveillance of appellant; two warrant searches of a residence tied to appellant;
a consent search of a second residence where appellant was alleged to have lived at one
time; an interaction between undercover police officers and appellant while they arrested
appellant pursuant to an arrest warrant; and a warrant search of a third residence that was
tied to appellant -- led to charges filed in three separate cases: 2020-CR-124, 2021-CR-
24, and 2021-CR-94.
{¶ 3} In case No. 2020-CR-124, appellant was charged by indictment with eleven
counts, including one count of fifth-degree felony drug trafficking (cocaine), one count of
fifth-degree felony drug trafficking (fentanyl related compound), four counts of third-
degree felony having a weapon under disability, four counts of fourth-degree felony
receiving stolen property (firearm), and one count of first-degree misdemeanor receiving
stolen property (merchandise from JC Penney).
{¶ 4} The two counts for felony drug trafficking and the count for first-degree
misdemeanor receiving stolen property resulted from drugs and merchandise found
during the execution of two search warrants at 306 East Strub Road. The four counts for
having a weapon under a disability and the four counts of fourth-degree felony receiving
2.
stolen property resulted from four guns that were found during a consent search of 423
Jackson Street.
{¶ 5} Appellant was charged by indictment in case No. 2021-CR-24 with one
count of fourth-degree felony drug trafficking (heroin) and one count of fourth-degree
felony drug trafficking (fentanyl-related compound). Both counts were based on drugs
that were found on a man who, upon leaving 306 Market Street with appellant, attempted
to flee when undercover police came to arrest appellant pursuant to an arrest warrant. The
man alleged that he purchased the drugs from appellant.
{¶ 6} In case No. 2021-CR-94, appellant was charged by indictment with one
count of third-degree felony tampering with evidence, one count of fourth-degree felony
disrupting public services, and fifth-degree felony vandalism. All three charges stemmed
from appellant cutting off the ankle monitor that he was required to wear as a condition
of his bond for case Nos. 2020-CR-124 and 2021-CR-24.
{¶ 7} The three cases were joined and resulted in a single trial. The jury found
appellant guilty of all the charges, and the counts were merged for sentencing as follows.
In case No. 2020-CR-124, the two counts for drug trafficking were merged, the four
counts for having a weapon under disability were merged, and the four counts for felony
receiving stolen property were merged. In case No. 2021-CR-24, both counts for drug
trafficking were merged. And in case No. 2021-CR-94, none of the three counts relating
to the ankle monitor were merged.
3.
{¶ 8} In case No. 2020-CR-124, appellant was sentenced to serve three years in
prison for the merged counts of having a weapon under disability, one year for the
merged counts of fifth-degree felony drug trafficking, and eighteen months for the
merged counts of felony receiving stolen property. He was also sentenced to serve 180
days in jail for the single count of misdemeanor receiving stolen property.
{¶ 9} In case No. 2021-CR-24, appellant was sentenced to serve eighteen months
in prison for the merged counts of fourth-degree felony drug trafficking.
{¶ 10} And in case No. 2021-CR-94, appellant was sentenced to serve three years
in prison for tampering with evidence, one year for vandalism, and eighteen months for
disrupting public services.
{¶ 11} All but the one year that was imposed for vandalism and the eighteen
months that were imposed for disrupting public services were ordered to be served
consecutively, for an aggregate prison term of ten years.
{¶ 12} Appellant timely filed an appeal for each case, and this court consolidated
the three appellate cases into case No. E-23-013.
Statement of the Facts
Case No. 2020-CR-0124
1) 306 East Strub Road – Evidence of Drug Trafficking, Cocaine and Fentanyl-Related Compound
{¶ 13} On July 5, 2019, Detectives Rotuno and Alexander conducted surveillance
at 306 East Strub Road after receiving information about possible drug trafficking.
4.
Detective Rotuno testified that he learned from the Alert database that appellant and his
girlfriend, Qiana Kaczkas, resided at that location.
{¶ 14} Detective Rotuno observed Joshua Veliz, who he knew had multiple arrest
warrants, arrive at the East Strub residence. He then observed appellant, Beliz, and
Thomas Harston leave the residence in Veliz’s vehicle. Detectives Rotuno and Alexander
followed the vehicle and initiated a traffic stop. A search of Veliz’s vehicle uncovered a
number of items that Veliz admitted had been stolen from JC Penney as well as drug
paraphernalia, marijuana, and a spoon with residue – all of which Veliz admitted were
his.
{¶ 15} On July 12, 2019, Detective Rotuno returned to 306 East Strub Road to
execute a search warrant for stolen property. Detective Rotuno testified that the home
was in “heavy disarray” and that he considered it to be a “flophouse” used for criminal
activity. During the investigation, he learned that Dolanda Kaczka, the sister of
appellant’s girlfriend, was the primary tenant of the residence. Dolanda testified that her
sister and appellant had lived with her at the house on East Strub Road in 2019.
{¶ 16} Detective Rotuno noted that appellant had been associated with at least six
different addresses over a two or three-year period. Detective Rotuno testified that, based
on his training and experience, drug dealers often move between transient housing to
avoid detection.
{¶ 17} During the search of the East Strub residence, police seized evidence of
stolen air conditioners, a stolen Bluetooth soundbar, two stolen televisions, and a security
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sensor. Because police also uncovered items that suggested potential drug trafficking,
Detective Rotuno stopped the search and obtained a second search warrant to look for
items related to drug possession and trafficking. Related to the second search, police
uncovered a grinder with white powder residue in the kitchen and a box of sandwich bags
and plastic baggie containing a white powder substance in a backpack in Bedroom 1.
BCI tested the plastic baggie containing the white powder and determined that it weighed
approximately 59.98 grams but did not contain any controlled substances. Detective
Rotuno testified that the tested substance would be used as a cutting agent. BCI also
tested the residue found on the grinder and determined that it contained a trace amount of
cocaine and carfentanil, both controlled substances. Detective Rotuno and Officer Cook
testified that these items are associated with drug trafficking. Detective Rotuno also
testified that he believed appellant and Quana Kaczkas were using Bedroom 1 based on
mail and clothing that were found in that bedroom.
{¶ 18} During a phone call with Detective Rotuno in December 2019, appellant
stated that his wallet was in the same backpack in which the sandwich baggies and
cutting agent were found. That backpack was also found to contain mail with appellant’s
name on it.
2) 423 Jackson Street – Evidence of Stolen Firearms
{¶ 19} Following the searches of 306 East Strub Road, Detective Rotuno went to
423 Jackson Street -- which was the home of Sally Kaczka, the grandmother of
appellant’s girlfriend -- to continue his investigation of the stolen clothes. Sally Kaczka
6.
testified that appellant and Qiana Kaczka used to live with her at that address. With
Sally’s permission, Detective Rotuno and his partner, Detective Alexander, entered a
room that Sally identified as the room that appellant and Qiana had previously occupied.
The room was empty of furniture, but sitting in the middle of the room was a large bag
full of what Detective Rotuno suspected were stolen clothes. Sally asked the officers to
take the clothes, which she confirmed were stolen, as well as some guns that were located
in a space above the closet in the same bedroom. According to Sally, appellant had
brought the guns into the residence and put them into that space. The guns, four in total,
were wrapped up together in dirt-and-leaf covered plastic and cloth.
{¶ 20} Detective Rotuno had previously investigated the theft of multiple firearms
from Gary Castle’s house on Bogart Road in 2018. Detective Rotuno identified the
firearms that were discovered above the closet at Sally Kaczka’s residence at 423 Jackson
Street to be the same ones that were stolen from the Bogart Road residence. Those
firearms included: (1) a .30-06 semi-automatic rifle; (2) a Winchester .22 long rifle semi-
automatic; (3) a 410 shotgun; and (4) an antique Winchester pump action rimfire rifle.
{¶ 21} Robb Parthemore, the retired chief of police for the Perkins Police
Department, testified about his extensive experience and training with respect to firearms.
He testified that all four firearms in this case were in poor condition from being left out in
the elements but that their poor condition did not mean that they were inoperable.
Because the bore of each gun did not “look as good as it should,” Parthemore cleaned
them before testing them, for his own safety. To clean the bores, Parthemore treated them
7.
with Hoppes solvent, let them sit for a couple of days, and then swabbed them out.
Thereafter, he successfully test-fired -- and thereby found to be operable -- all of the guns
except the antique rifle, which he considered unsafe to load due to rust buildup that was
“gumming up” the tubular magazine.
{¶ 22} Parthemore testified that the “gunk” that was in the antique firearm did not
necessarily render it inoperable and that to enable it to fire one needed only to insert a
round directly into the chamber. Although Parthemore had considered inserting a round
into the chamber of the antique gun, he ultimately determined that such would be unsafe
because the particular cartridge that was required for the gun was of a type that could go
off in his hand if he pinched the edge of it incorrectly while trying to insert it. In light of
this safety concern, Parthemore performed a “functions check” on the gun, rather than a
test fire. From the results of his functions check, Parthemore determined, based on his
training and experience, that the antique gun, like the other three guns, was operable.
Case No. 2021-CR-0024
{¶ 23} On June 18, 2020, Sergeant Scheerer and Detective Sergeant Harvey
conducted surveillance on 306 Market Street after receiving information of a potential
drug transaction at the residence together with information that appellant, for whom they
had an arrest warrant, was staying there. Detective Sergeant Harvey observed Ronald
Geffeller exit a vehicle and enter the Market Street residence through the front door.
Shortly thereafter, Geffeller and appellant exited the residence together. Detective
Sergeant Harvey approached appellant, informed him of indictments against him, and
8.
took him into custody. During her search of appellant’s person, Detective Sergeant
Harvey removed three bundles of money totaling $3,099 from appellant’s pocket.
Detective Sergeant Harvey and Detective Rotuno both testified that, based on their
training and experience, the way the money was bundled and its denominations were
indicative of drug trafficking. Detective Rotuno also testified that one of the bundles
contained $850, which was an amount comparable to the price of two ounces of
narcotics. Appellant offered inconsistent information to Detective Sergeant Harvey about
the source of the money and its owner.
{¶ 24} While Detective Sergant Harvey was occupied with appellant, Geffeller
fled on foot and was pursued by Sergeant Scheerer. Sergeant Scheerer testified that he
observed Geffeller ripping open a plastic baggie and emptying a white powdery
substance, which he believed to be illegal narcotics. Sergeant Scheerer eventually
apprehended Geffeller and recovered the opened plastic baggie as well as another plastic
baggie that was in Geffeller’s pants pocket. BCI determined that the white substance in
one of those baggies weighed approximately 2.75 grams and contained heroin and
fentanyl, and that the residue in the other baggie also included heroin and fentanyl.
{¶ 25} On the following day, June 19, 2020, Sergeant Scheerer had another
encounter with Geffeller at the Sheriff’s Office, after Geffeller was released from jail.
Sergeant Scheerer testified that Geffeller told him that he had been at the Market Street
residence the previous day to purchase narcotics from appellant. Sergeant Scheerer also
had an opportunity to look at Geffeller’s cell phone, which included a text message
9.
conversation between Geffeller and “Streets.” Sergeant Scheerer and Officer Cook both
testified that based on prior interactions and information, they knew “Streets” to be
appellant. Appellant also identified himself as “Streets” in several jail phone calls after
his arrest. The contact information for “Streets” in Geffeller’s phone showed a number
that Sergeant Scheerer testified came back to appellant in the Alert database. Geffeller’s
phone showed an outgoing call to “Streets” at 1:34 p.m. on June 18, 2020 –
approximately 30 minutes before Geffeller was seen with appellant at the Market Street
residence. The text messages between Geffeller and appellant stated as follows:
Geffeller: I’m here.
Streets: U got the money for the 2
Geffeller: Bring 1 and a half just don’t leave me empty
Geffeller: U come
Geffeller: Home
Streets: Yea crib
Geffeller: I’ll bee out there
Geffeller: Have 2 more ready
{¶ 26} Also on June 19, 2020, Sergeant Scheerer and Detective Sergeant Harvey
returned to 306 Market Street to execute a search warrant. During the search, law
enforcement found utility bills in the name of appellant and Qiana Kaczka, a document
from Fireland’s Regional Medical Center in appellant’s name and listing his phone
number, a wallet containing appellant’s identification card, a digital scale with residue, a
10.
bookbag containing money, marijuana paraphernalia, and marijuana roaches. The digital
scale with residue and marijuana roaches were found in a bedroom that contained
paperwork with appellant’s name on it and male clothing in his size.
Case No. 2021-CR-0094
{¶ 27} Appellant was ordered by the court to wear an ankle monitor while on
house arrest as part of his bond conditions in case Nos. 2020-CR-124 and 2021-CR-24.
Oriana House is a community corrections agency that provides electronic monitoring
services to its customer, the Erie County Adult Probation Department. At the probation
department’s request, Oriana House affixed an electronic monitor to appellant’s ankle on
October 26, 2020. On January 27, 2021, appellant “generated a tamper alert.” After
twelve hours of unknown whereabouts, appellant was unsuccessfully terminated from the
program for tampering with his ankle monitor and violating the program rules.
{¶ 28} Oriana House Director Tiana Krause testified that Oriana House must pay
for the repair of any damaged equipment, and that having damaged equipment affects
Oriana House’s ability to operate its business, because damaged equipment cannot be
placed on another individual.
Sentencing
{¶ 29} As indicated above, in case No. 2020-CR-124, the two counts for drug
trafficking were merged, the four counts for having a weapon under disability were
merged, and the four counts for felony receiving stolen property were merged. And in
case No. 2021-CR-24, both counts for drug trafficking were merged.
11.
{¶ 30} In case No. 2021-CR-94, none of the three counts relating to the ankle
monitor were merged, despite defense counsel’s argument that they all should merge and
the State’s agreement that tampering with evidence and disrupting public services should
merge.
{¶ 31} The state requested that the court impose consecutive sentences, due to
appellant’s criminal history, his failure to respond favorably to probation, and his failure
to take responsibility for his actions.
{¶ 32} Prior to issuing appellant’s sentence, the trial court stated on the record that
it had taken into consideration R.C. 2929.11 sentencing guidelines and R.C. 2929.12
factors. The trial court recited appellant’s lengthy criminal history, and then specified
pursuant to R.C. 2929.14(C)(4)(a):
The Court finds … that you have a history of criminal
convictions, that a prison term of consecutive sentences is
necessary to protect the public from future crimes by you.
We’ve already talked about your past record and what
happened here and the danger that you pose to the public
being involved in the trafficking in fentanyl-related
compound, having weapons, and unpredictable behavior with
cutting the ankle bracelet.
The Court also finds that you were – have a history of
criminal conduct that demonstrates consecutive sentences are
necessary, that a single sentence would demean the
seriousness of this conduct, and that the multiple offenses
were committed as a course of criminal conduct and the harm
great, so great or unusual, no single prison terms would
satisfy the purpose and principles of sentencing.
{¶ 33} The trial court went on to sentence appellant as indicated above. That is, in
case No. 2020-CR-124, he was sentenced to serve three years in prison for the merged
12.
counts of having a weapon under disability, one year for the merged counts of fifth-
degree felony drug trafficking, and 18 months for the merged counts of felony receiving
stolen property. He was also sentenced to serve 180 days in jail for the single count of
misdemeanor receiving stolen property.
{¶ 34} In case No. 2021-CR-24, appellant was sentenced to serve 18 months in
prison for the merged counts of fourth-degree felony drug trafficking.
{¶ 35} And in case No. 2021-CR-94, appellant was sentenced to serve three years
in prison for tampering with evidence, one year for vandalism, and 18 months for
disrupting public services.
{¶ 36} As noted above, all but the one year that was imposed for vandalism and
the 18 months that were imposed for disrupting public services were ordered to be served
consecutively, for an aggregate prison term of ten years.
Assignments of Error
{¶ 37} On appeal, appellant asserts the following assignments of error:
I. Tierace Scott’s merged weapon under disability and merged felony receiving
stolen property findings of guilt are not supported by sufficient evidence, and
the trial court erred when it denied his Crim.R. 29 motion as to those charges.
II. The trial court erred and violated Tierace Scott’s constitutional rights to
confrontation when it admitted testimonial evidence absent the opportunity for
cross examination.
13.
III. Tierace Scott’s merged weapon under disability and merged felony receiving
stolen property findings of guilt are not supported by the manifest weight of
the evidence.
III. Tierace Scott’s trial counsel rendered ineffective assistance of counsel, in
violation of his constitutional rights.
IV. The trial court erred when it separately sentenced Tierace Scott for allied
offenses of similar import. [Tampering with evidence, disrupting public
services, and vandalism.]
V. The trial court committed plain error when it separately sentenced Tierace
Scott for allied offenses of similar import. [Weapon under disability and felony
receiving stolen property.]
VI. The trial court erred when it sentenced Tierace Scott to a consecutive sentence
that the record clearly and convincingly does not support.
Law and Analysis
Appellant’s convictions for having weapons under disability and receiving stolen
property were supported by the weight and sufficiency of the evidence.
{¶ 38} Appellant contends in his first assignment of error that there was
insufficient evidence to support his merged convictions for having weapons under
disability and for felony receiving stolen property in case No. 2020-CR-0124, because the
state failed to prove that: (1) the firearms involved “were operable or capable to be
readily rendered operable”; and (2) appellant knew or had reasonable cause to believe
that the firearms had been obtained through the commission of a theft offense. In his third
14.
assignment of error, appellant contends that his merged convictions for having weapons
under disability and felony receiving stolen property were against the manifest weight of
the evidence for the same reasons. Accordingly, we will address these assignments of
error together.
Standard of Review
{¶ 39} “In reviewing a record for sufficiency, ‘[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 the crime proven beyond a reasonable
doubt.’” State v. Jones, 2021-Ohio-2621, ¶ 66, quoting State v. Jenks,
61 Ohio St.3d 259
(1991), paragraph two of the syllabus.
{¶ 40} “In contrast, when reviewing a manifest weight claim,
‘[t]he 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., quoting State v. Lang,
2011-Ohio-4215, ¶ 220. (Additional citation omitted.)
{¶ 41} “[W]ith merged offenses, if there is sufficient evidence to support the
offense on which the state elected to have the defendant sentenced, the reviewing court
need not consider the sufficiency of the evidence or the manifest weight of the evidence
on the merged counts because any error would constitute harmless error.” State v. Cook,
15.
2024-Ohio-2966, ¶ 59 (5th Dist.), citing State v. Harris,
2024-Ohio-2709, ¶ 59 (8th
Dist.). In this case, because the counts for weapons under disability were merged into
Count 3 and the counts for receiving stolen property were merged into Count 7, we will
consider only those two counts in our evaluation of the sufficiency of the evidence and
the manifest weight of the evidence arguments. Both Count 3 and Count 7 related to the
.30-06 semi-automatic rifle.
The firearm was operable or could be readily rendered operable.
{¶ 42} R.C. 2923.13, having weapons under disability, prohibits a person from
acquiring, having, carrying or using a firearm under certain, enumerated, circumstances.
And R.C. 2913.51, which prohibits the receipt of stolen property, establishes that if the
property involved is a firearm or other dangerous ordnance, receiving stolen property is a
felony of the fourth degree. R.C. 2913.51(C).
{¶ 43} The Ohio Revised Code defines a “firearm” as follows:
(B)(1) “Firearm” means any deadly weapon capable of
expelling or propelling one or more projectiles by the action
of an explosive or combustible propellant. “Firearm” includes
an unloaded firearm, and any firearm that is inoperable but
that can readily be rendered operable.
(2) When determining whether a firearm is capable of
expelling or propelling one or more projectiles by the action
of an explosive or combustible propellant, the trier of fact
may rely upon circumstantial evidence, including, but not
limited to, the representations and actions of the individual
exercising control over the firearm.
R.C. 2923.11(B).
16.
{¶ 44} To establish the offense of having a weapon under disability, the State must
prove beyond a reasonable doubt that any gun that appellant had while under disability
was operable or was capable of being readily rendered operable. See State v. Elliott,
2022-Ohio-3778, ¶71 (3d Dist.) (finding that prosecution had to establish beyond a
reasonable doubt that any gun defendant had while under disability was operable or was
capable of being rendered operable).
‘The requirement that a gun be either operable or readily
capable of being rendered operable is meant to distinguish
irretrievably broken guns from guns that are either fully
functioning or temporarily non-functioning.’ State v.
Stubblefield, 2008-Ohio-5348, ¶ 9 (8th Dist.). A jammed gun
that is temporarily nonoperational is capable of being readily
rendered operable because the jam can be cleared.
State v. Maynard, 2023-Ohio-4619, ¶33 (1st Dist.); see also State v. Fluellen,
88 Ohio
App.3d 18, 24 (4th Dist. 1993) (where gun had “a half-inch dirt plug in the barrel” the
gun was temporarily inoperable but was readily made operable by cleaning the dirt plug
out of the barrel).
On the other hand, a gun with excessive rusting may be
inoperable. While the rust might be cleaned in such a way as
to render the gun operable, the removal of the rust might be
so time-consuming that the gun could not be said to be
capable of being readily operable. Ultimately, whether a gun
can be readily rendered operable is a question of fact. State v.
Thompkins, 1997-Ohio-52, paragraph one of the syllabus.
Stubblefield at ¶9. “‘In determining whether a firearm is operable, the trier of fact
examines the totality of the circumstances.’” State v. Robinson,
2020-Ohio-6978, ¶28
(6th Dist.), quoting State v. Johnson,
2016-Ohio-872, ¶ 8 (9th Dist.).
17.
{¶ 45} Here, Robb Parthemore testified that the .30-06 semi-automatic rifle was
operable. Although he stated that he cleaned the bore of the firearm before testing it, he
testified that he did so for his own safety, and not because it was inoperable in its current
condition.
{¶ 46} Parthemore successfully test fired the .30-06 semi-automatic rifle, and on
that basis determined it to be operable.
{¶ 47} Appellant contends that Parthemore’s testimony was insufficient because
Parthemore’s safety concerns for the weapon “went directly to operability, to wit:
[Parthemore’s concern that] the bullets (projectiles) would not expel or propel but instead
[would] create a risk of explosion.” Even if we were to accept this argument -- which
seems to go to the matter of the weight of the evidence, rather than sufficiency -- it does
not address or otherwise negate the suggestion that the weapon, with cleaning, was
readily capable of being rendered operable.
{¶ 48} Accordingly, we find that the record contains ample evidence from which a
rational trier of fact could conclude that the subject firearm was operable, or could readily
be rendered operable, and there is no evidence that the jury clearly lost its way in
convicting appellant of having a weapon while under disability and felony receiving
stolen property with respect to this firearm.
18.
Appellant knew or had reasonable cause to believe the firearm was stolen.
{¶ 49} R.C. 2913.51(A) prohibits a person from “receiv[ing], retain[ing], or
dispos[ing] of the property of another knowing or having reasonable cause to believe that
the property has been obtained through the commission of a theft offense.”
{¶ 50} Pursuant to R.C. 2901.22(B):
A person acts knowingly, regardless of purpose, when the
person is aware that the person's conduct will probably cause
a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when the person is
aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element
of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its
existence and fails to make inquiry or acts with a conscious
purpose to avoid learning the fact.
“‘[O]ne has ‘reasonable cause to believe’ property was
obtained through a theft offense when, after putting oneself in
the position of this defendant, with his knowledge, lack of
knowledge, and under the circumstances and conditions that
surrounded him at the time, the acts and words and all the
surrounding circumstances would have caused a person of
ordinary prudence and care to believe that the property had
been obtained through the commission of a theft offense.’”
State v. Johnson, 2020-Ohio-4077, ¶ 14 (10th Dist.), quoting State v. Skinner, 2008-Ohio-
6822, ¶ 12 (10th Dist.), quoting State v. Kirby, 2006–Ohio–5952, ¶ 11 (10th Dist.).
(Additional citation omitted.)
{¶ 51} “When determining whether a person acts knowingly, has knowledge of the
circumstances, has knowledge of a particular fact, or has reasonable cause to believe the
property was stolen, the trier of fact must determine the person’s state of mind from the
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totality of the circumstances surrounding the alleged crime.” Johnson at ¶ 15. “Absent an
admission by a defendant, whether there was reasonable cause for a defendant to know if
an item was stolen can only be shown by circumstantial evidence.” State v. Baldwin,
2020-Ohio-699, ¶ 35 (6th Dist.), citing State v. West,
2002-Ohio-2242, ¶ 843 (8th Dist.).
“It is well-established in Ohio that ‘[c]ircumstantial evidence and direct evidence
inherently possess the same probative value.”
Id., citing State v. Jenks,
61 Ohio St.3d 259
(1991), paragraph one of the syllabus.
{¶ 52} “Some factors that may be helpful in determining whether a defendant
knew or should have known that property has been obtained through the commission of a
theft offense include: ‘(a) the defendant’s unexplained possession of the merchandise, (b)
the nature of the merchandise, (c) the frequency with which such merchandise is stolen,
(d) the nature of the defendant’s commercial activities, and (e) the relatively limited time
between the thefts and the recovery of the merchandise.’” Id., citing State v. Davis,
49
Ohio App.3d 109, 112 (8th Dist. 1988).
{¶ 53} Here, appellant’s possession of the .30-06 semi-automatic rifle was never
affirmatively explained by any witness. At the time in question, appellant was under a
disability and unable to legally possess a firearm. In addition, there was testimony that
the firearm was in poor condition from being kept outside in the elements. Further
testimony established that appellant placed the gun -- which was wrapped together with
other guns in a trash bag -- into a cubbyhole above the closet at Sally Kaczka’s house.
When appellant moved out of Sally Kaczka’s house, he left only two things behind –
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stolen clothing and firearms, including the stolen .30-06 semi-automatic rifle. The jury
could reasonably conclude from these facts that appellant, knowing the firearm was
stolen, attempted to hide it and intentionally left it behind.
{¶ 54} The prosecution does not, as appellant claims, “demand on appeal” that
appellant provide an explanation for his possession of the stolen item. Instead, the State
merely points out that no explanation was ever provided.
{¶ 55} Appellant further claims that his secreting of the firearm was reasonably
attributed to the fact that he was prohibited from possessing firearms, and not because the
firearm was stolen. To the contrary, nothing about the evidence presented precludes a
determination that appellant hid the gun because it was stolen.
{¶ 56} Based on this evidence of appellant’s conduct, a rational trier of fact could
infer that appellant knew or had reasonable cause to believe that the firearm had been
stolen, and there is nothing to suggest that the jury clearly lost its way in convicting
appellant of felony receiving stolen property.
{¶ 57} For all of the foregoing reasons, appellant’s first and third assignments of
error are found not well-taken.
21.
The trial court did not violate appellant’s constitutional rights to confrontation
when it admitted photos of text messages between appellant and Ronald Geffeller.
{¶ 58} Appellant argues in his second assignment of error that the trial court erred
in violation of the Confrontation Clause by admitting photos of the text messages
between himself and Ronald Geffeller, without the opportunity to cross-examine
Geffeller.
Confrontation Clause
{¶ 59} A criminal defendant has the right to confront witnesses under both the
United States and Ohio constitutions. The Sixth Amendment to the United States
Constitution states: “In all criminal prosecutions, the accused shall enjoy the right … to
be confronted with the witnesses against him.” Likewise, Article I, Section 10 of the
Ohio Constitution states that “[i]n any trial, in any court, the party accused shall be
allowed … to meet the witnesses face to face.”
{¶ 60} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted in the statement.” Evid. R. 801(C). “[W]henever the state seeks to introduce
hearsay into evidence in a criminal proceeding, the court must determine not only
whether the evidence fits within an exception to the hearsay rule, but also whether the
introduction of such evidence offends an accused’s right to confront witnesses against
him.” State v. Boyce, 2024-Ohio-464, ¶9 (8th Dist.), citing State v. Kilbane, 2014-Ohio-
1228, ¶ 29 (8th Dist.).
22.
{¶ 61} The United States Supreme Court in Crawford v. Washington, 541 U.S. 36
(2004), held that the Confrontation Clause bars the admission of testimonial statements of
a witness who does not appear at trial unless he is unavailable to testify and the defendant
has had a prior opportunity for cross-examination.
Id. at 53-54. “It is the testimonial
character of the statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the Confrontation clause.”
Davis v. Washington,
547 U.S. 813, 821.
{¶ 62} “Although the Crawford Court did not specifically define the term
‘testimonial,’ it explained that hearsay statements are implicated by the Confrontation
Clause when they are ‘made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.’” Boyce
at ¶ 12, quoting
Crawford at 52. As examples of testimonial statements, the court listed
affidavits, custodial examinations, depositions, prior testimony, confessions, or similar
pretrial statements that declarants would reasonably expect to be used in a prosecution.
Crawford at 51-52.
{¶ 63} In Davis, the United States Supreme Court provided that whether a
statement is testimonial depends upon the “primary purpose” of the statement. Id. at 822;
see also State v. Siler, 2007-Ohio-5637, paragraph one of the syllabus; State v. Stevenson,
2023-Ohio-4853, ¶ 60 (6th Dist.). “Statements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
23.
emergency.”
Id. “If, however ‘the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later prosecution,’ then the statements are
testimonial.’”
Stevenson at ¶ 61, quoting State v. Ford,
2021-Ohio-3058, ¶ 22 (6th Dist.),
quoting Davis at ¶ 822.
{¶ 64} Appellant argues that the text messages between himself and Geffeller are
“quintessential testimonial evidence” because they were discovered and obtained during a
police interrogation. We disagree with this characterization of the evidence.
{¶ 65} The statements in the text messages -- although indeed revealed during
police questioning -- were originally made as part of a casual, private conversation
between appellant and Geffeller. They did not come within the purview of any of the
classes of testimonial statements mentioned in Crawford, and they were not made for the
purpose of establishing or proving some fact relevant to a later criminal prosecution.
Thus, they were not testimonial under Crawford or Davis, and their admission did not
violate appellant’s right of confrontation. See State v. Lang, 128 So.3d 330, 340 (La.App.
5 Cir. Oct. 9, 2013) (text messages made in casual, private conversations were not
testimonial); State v. Damper,
225 P.3d 1148 (Ariz.Ct.App.2010) (because content and
circumstances of text demonstrated that the individual did not send it for the purpose of
establishing or proving some fact, the message was non-testimonial); Rodriguez v. State,
273 P.3d 845 (Nev.2012) (text messages were neither hearsay nor testimonial).; U.S. v.
Thompson,
568 Fed.Appx. 812 (2014) (texts deemed not testimonial where author would
24.
never have sent his incriminating messages had he anticipated their future use in a court
of law).
{¶ 66} Not only were the text messages between appellant and Geffeller not
testimonial, they were also not hearsay, because they were (properly authenticated)
admissions by a party-opponent under Evid.R. 801(D)(2)(a). See State v. Fitts, 2020-
Ohio-1154, ¶ 32 (6th Dist.) (text messages from defendant to confidential informant were
not hearsay, because they were admissions by a party opponent under Evid.R.
801(D)(2)(1)); State v. Roseberry, 2011-Ohio-5921, ¶ 73 (8th Dist.) (photos of text
message that defendant sent from his cell phone were not hearsay; as long as they were
properly authenticated, they were the party’s own statements); see also State v. Shaw,
2013-Ohio-5292, ¶ 43 (7th Dist.) (photographs of text messages can be admissible as an
admission by a party-opponent under Evid.R. 801(D)(2)(a) if they are properly
authenticated); State v. Moorer,
2019-Ohio-1090, ¶ 64 (7th Dist.).
{¶ 67} Appellant’s objections to the contrary notwithstanding, the law is clear that
“[s]tatements that are not hearsay ‘do not implicate the Confrontation Clause.’” Fitts at ¶
30, quoting State v. Beasley, 2018-Ohio-493, ¶ 171. (Additional citation omitted.)
Moreover, multiple Ohio courts have concluded that “the Confrontation Clause is simply
inapplicable” where, as here, “the ‘witness’ is the accused himself.” State v. Lloyd, 2004-
Ohio-5813, ¶ 16 (2d Dist.); see also State v. Brown,
2010-Ohio-2460, ¶ 30 (8th Dist.);
State v. Hardison,
2007-Ohio-366, ¶ 16 (9th Dist.).
25.
{¶ 68} As the text messages in question were neither testimonial nor hearsay, their
admission into evidence did not violate the Confrontation Clause. Appellant’s second
assignment of error is therefore found not well-taken.
Appellant’s trial counsel was not constitutionally ineffective.
{¶ 69} Appellant argues in his fourth assignment of error that his trial counsel was
constitutionally ineffective. “In general, to prevail on a claim of ineffective assistance,
[an] appellant must show that counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial court cannot be relied upon as having produced a just
result.” State v. Birr, 2011-Ohio-796, ¶ 18 (6th Dist.), citing Strickland v. Washington,
466 U.S. 668, 692-693 (1984). Under this standard, appellant must satisfy a two-prong
test. “First, appellant must show that counsel’s representation fell below an objective
standard of reasonableness. Second, appellant must show a reasonable probability that,
but for counsel’s errors, the results of the proceeding would have been different.”
Birr at
¶ 18, citing
Strickland at 687-688. “Reasonable probability” is “probability sufficient to
undermine confidence in the outcome” of the proceedings.
Strickland at 694.
Weapons Under Disability and Prior Convictions
{¶ 70} Appellant first contends that his trial counsel was ineffective for allowing
the weapons under disability offenses to be tried to the jury. Pursuant to R.C.
2923.13(A)(3), the existence of appellant’s prior felony drug convictions was an essential
element of the weapons under disability offense. As a result, the jury was informed of
those offenses at trial. According to appellant, his trial counsel was ineffective for
26.
allowing the jury to hear about these convictions rather than trying the weapons under
disability offenses to the court.
{¶ 71} “It is ‘[a] recognized concern with trying a weapons under a disability
charge to the jury [] that, in a case where a defendant does not testify, the jury would
learn about a defendant’s prior conviction for the sole reason that the charge was tried
before them and not a judge.’” State v. Jones, 2011-Ohio-5966, ¶ 11 (2d Dist.), quoting
State v. Ingram,
2007-Ohio-7136, ¶ 77 (10th Dist.). However, “trying the charge to a jury
when the defendant does not testify is not per se unreasonable.” Id. at ¶ 11, citing
Ingram
at ¶ 77. Courts have classified counsel’s decision to try a weapons under disability charge
to the jury as trial strategy. State v. Feltha,
2017-Ohio-8640, ¶ 7 (1st Dist.); State v.
Boyde,
2013-Ohio-3795, ¶ 19 (10th Dist.); State v. Griffin,
2013-Ohio-416, ¶ 44 (9th
Dist.); Jones at ¶ 11;
Ingram at ¶ 76. Indeed, several courts have recognized that “trying
the charge to a jury may be reasonable strategy in light of the fact that ‘the chance of an
acquittal, or even a hung jury, is considerably greater when charges are tried to a jury,
rather than a judge.’” Jones at ¶ 11, quoting State v. Love,
2006-Ohio-1824, ¶ 49 (4th
Dist.).
{¶ 72} In addition, several courts have rejected similar ineffective assistance of
counsel claims after finding that “the right to waive jury trials belongs not to counsel but
to [the defendant] himself” and that “[i]n the absence of any evidence that [the defendant]
expressed a desire to waive his rights to a jury trial prior to trial [it cannot be concluded]
that counsel was ineffective for failing to assert a right which did not belong to him.”
27.
State v. Rogers, 2008-Ohio-2757, ¶ 82 (11th Dist.) (emphasis in original); see also State
v. Slaughter,
2014-Ohio-862, ¶ 56 (2d Dist.) As in those cases, there is nothing in the
record here indicating that appellant wanted to waive his right to a jury trial on the
weapons under disability charges prior to trial. Appellant has, therefore, failed to
demonstrate that counsel’s representation fell below an objective standard of
reasonableness.
{¶ 73} Appellant has also failed to explain how, in light of all of the other
evidence introduced at trial, the result of his trial could have been any different had the
weapons under disability charges been tried to the court, rather than the jury. There is
nothing in the record to indicate that the jury convicted appellant because it was
prejudiced against him after learning about his felony drug convictions. Rather, the
record demonstrates that the jury was not informed of the details of the offenses.
Furthermore, the trial court instructed the jury that the evidence regarding appellant’s
prior trafficking and possession convictions “was received because a prior conviction of
that type of offense is an element of the offenses of Having a Weapon While Under a
Disability … as charged in Case 2020-CR-124” and “[i]t was not received, and you may
not consider it, to prove the character of the Defendant in order to show he acted in
conformity or in accordance with that character.” This court presumes that the jury
followed those instructions. See State v. Garner, 74 Ohio St.3d 49, 59 (1995) (a jury is
presumed to follow instructions given it by a trial judge).
28.
Confrontation Objection
{¶ 74} Next, appellant contends that his trial counsel was ineffective for failing to
object to testimony by Sergeant Scheerer that Ronald Geffeller told him that Geffeller
went to 306 Market Street to purchase narcotics from appellant.
{¶ 75} “The ‘failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Liles, 2014-Ohio-259, ¶ 49 (3d Dist.), quoting
State v. Johnson,
2006-Ohio-6404, ¶ 139, citing State v. Holloway,
38 Ohio St.3d 239,
244 (1988). “To prevail on such a claim, a defendant must first show that there was a
substantial violation of any of defense counsel’s essential duties to his client and, second,
that he was materially prejudiced by counsel’s ineffectiveness.”
Holloway at 244, citing
State v. Lytle,
48 Ohio St.2d 391, 396-397 (1976) and Strickland,
466 U.S. 668 (1984).
{¶ 76} As discussed above, “[a]ccused parties have the right to confront witnesses
making testimonial statements pursuant to the Confrontation Clause of the Sixth
Amendment to the United States Constitution.” See State v. Stevenson, 2023-Ohio-4853,
¶ 59 (6th Dist.), citing State v. Ford.
2019-Ohio-4539, ¶ 214, citing Crawford,
541 U.S.
36 at 53-54. “Accordingly, the Sixth Amendment bars testimonial statements made by a
declarant not appearing at trial so that an accused may cross-examine that declarant.”
Id.
“[I]f the statements were given in response to a police interrogation, i.e., ‘knowingly
given in response to structured police questioning,’ then they are more likely to be
testimonial.’” Id. at ¶ 64, citing
Crawford at 53.
29.
{¶ 77} Here, Sergeant Scheerer testified that he had an interaction with Ronald
Geffeller on June 19, 2020, at the sheriff’s office after he was released from jail. Sergeant
Scheerer testified that he talked to Geffeller about why he had been at the Market Street
residence with appellant the previous day, and Geffeller stated that he went there to
purchase narcotics from appellant.
{¶ 78} Assuming that Geffeller’s statement was testimonial and that defense
counsel should have objected to Sergeant Scheerer’s testimony as violative of the
Confrontation Clause, we must still determine whether appellant has demonstrated that he
was prejudiced by this alleged failure.
{¶ 79} In this case, Geffeller’s phone showed an outgoing call to appellant
approximately 30 minutes before Sergeant Scheerer and Detective Sergeant Harvey
observed Geffeller with appellant at the Market Street residence. Geffeller’s phone also
included text messages between Geffeller and appellant setting up a sale of narcotics.
While surveilling the residence, Detective Sergeant Harvey observed Geffeller exit a
vehicle and enter 306 Market Street through the front door. Shortly thereafter, Geffeller
and appellant exited the residence. After taking appellant into custody, Detective
Sergeant Harvey searched appellant and found three bundles of money in his pocket
totaling $3,099. Detective Sergeant Harvey and Detective Rotuno both testified that,
based on their training and experience, the way the money was bundled and the
denominations were indicative of drug trafficking. Detective Rotuno further testified that
one of the bundles contained $850, which was comparable to the price of two ounces of
30.
narcotics and was consistent with the text messages between appellant and Geffeller.
Appellant also provided inconsistent information to law enforcement concerning the
source of the money. While appellant was being arrested, Geffeller fled on foot and
Sergeant Scheerer chased after him. Sergeant Scheerer testified that he observed Geffeller
ripping open a plastic baggie and emptying a white powdery substance. Sergeant
Scheerer eventually apprehended Geffeller and recovered the opened plastic baggie as
well as another plastic baggie in Geffeller’s pants pocket. BCI determined that the white
substance in one of those baggies weighed approximately 2.75 grams and included heroin
and fentanyl, and that the residue in the other baggie also included heroin and fentanyl.
Furthermore, the execution of a search warrant at the 306 Market Street residence
resulted in the seizure of utility bills in the name of appellant and Qiana Kaczka, a
document from Fireland’s Regional Medical Center in appellant’s name and listing his
phone number, a wallet with appellant’s identification card, a digital scale with residue, a
bookbag containing money, marijuana paraphernalia, and marijuana roaches. The digital
scale with residue and marijuana roaches were found in a bedroom that contained
paperwork with appellant’s name on it and male clothing in his approximate size.
Considering the totality of this evidence, we find that the State presented overwhelming
evidence to establish the fourth-degree felony drug trafficking charges in case No. 2021-
CR-24. Thus, any error relating to defense counsel’s failure to object to Sergeant
Scheerer’s testimony was harmless.
31.
{¶ 80} Because appellant has failed to show a reasonable probability that, but for
counsel’s failure to object to Sergeant Scheerer’s testimony, the result of the trial would
have been different, he is unable to satisfy the prejudice prong of the ineffective-
assistance-of-counsel test.
Merger
{¶ 81} Appellant also contends that his trial counsel was ineffective for not
moving the trial court to merge his convictions for weapons under disability and felony
receiving stolen property. This claim is without merit because, as explained below in
response to appellant’s sixth assignment of error, the weapons under disability and
receiving stolen property offenses were of dissimilar import.
{¶ 82} For all of the foregoing reasons, appellant’s fourth assignment of error is
found not well-taken.
The trial court erred when it separately sentenced appellant for tampering with
evidence and disrupting public services in case No. 2021-CR-94.
{¶ 83} In his fifth assignment of error, appellant contends that the trial court erred
by not merging his convictions for tampering with evidence, disrupting public services,
and vandalism in case No. 2021-CR-94.
{¶ 84} “R.C. 2941.25 prohibits multiple convictions for ‘allied offenses of similar
import’ arising from the same conduct.” State v. White, 2021-Ohio-335, ¶ 8 (6th Dist.).
“To determine whether multiple convictions constitute allied offenses, the court must
address three questions: (1) did the offenses involve either separate victims or ‘separate
and identifiable harm, (2) were the offenses committed separately, and (3) were the
32.
offenses committed with separate animus?’”
Id., quoting State v. Ruff,
2015-Ohio-995, ¶
25. “‘An affirmative answer to any of the above will permit separate convictions.’”
Id.,
quoting State v. Tellis,
2020-Ohio-6982, ¶ 74 (6th Dist.).
{¶ 85} Appellant was convicted of tampering with evidence in violation of R.C.
2921.12(A)(1), which provides that “[n]o person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted, shall … [a]lter,
destroy, conceal, or remove any record, document, or thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation.”
{¶ 86} Appellant was also convicted of vandalism in violation of R.C.
2909.05(B)(1)(b), which provides that “[n]o person shall knowingly cause physical harm
to property that is owned or possessed by another, when … [r]egardless of the value of
the property or the amount of damage done, the property or its equivalent is necessary in
order for its owner or possessor to engage in the owner’s or possessor’s profession,
business, trade, or occupation.”
{¶ 87} R.C. 2909.04 (A)(1), disrupting public services, provides that “[n]o person,
purposely by any means or knowingly by damaging or tampering with any property,
shall” interrupt or impair police service communications.”
{¶ 88} Here, the parties agree that the conduct for all three offenses was the same
– cutting off the court-ordered ankle monitor – and that the animus for the offenses was
the same – to avoid detection by the Erie County Probation Department and the court.
The parties also agree that the harm involved for tampering with the evidence and
33.
disrupting public services was the same and, thus, both parties agree those two offenses
should have merged at sentencing. Where the parties disagree is with respect to victim
identity and whether the harms for the offenses of tampering with evidence and
vandalism were the same.
{¶ 89} The State argues that the victims of the tampering with evidence offense
were the court and community at large, because by removing the ankle monitor, appellant
tampered with evidence that could otherwise be provided to the court and created a
heightened safety concern for the community. By contrast, the State argues, the victim of
the vandalism offense was Oriana House, which was the entity that performed the
monitoring via the ankle monitor that was rendered unusable when appellant cut the
strap.
{¶ 90} Appellant argues that Oriana House was “a victim of all three offenses in
two ways.” First, appellant states, Oriana House is part of the “community at large”
victim of each offense. And second, appellant contends that “it is Oriana House
Employees who do the monitoring via the ankle monitor that was damaged when
appellant cut the strap.” Appellant also argues that the vandalism offense has “Oriana
House’s business practice as an element and excludes economic harm from the calculus.”
Thus, appellant reasons, “[t]he fact that Oriana House may have endured economic harm
does not adequately differentiate it under these facts to allow for separately imposed
sentences.”
34.
{¶ 91} In this case, we are persuaded by the State’s argument. Here, we find that
the offenses of disrupting public services and tampering with the evidence are allied
offenses of similar import because the harms engendered by their commission similarly
impacted the public at large (to the extent that they affected the functioning of the
criminal justice system and, by extension, the safety of the community) and were not
separate and identifiable.
{¶ 92} The harm related to the offense of vandalism, on the other hand,
specifically and exclusively impacted Oriana House and its ability to conduct business.
While Oriana House may well be considered a victim of all three offenses, as appellant
suggests, it would be one of many victims of the disrupting public services and tampering
offenses, but the only victim of the vandalism offense, and the only victim whose
business was directly affected by appellant’s actions.
{¶ 93} Because we find that the offenses of disrupting public services and
tampering with evidence are allied offenses of similar import in this case, appellant’s fifth
assignment of error is found well-taken in part. We reverse and vacate the two
convictions for those two offenses, and remand this case to the trial in order that the State
may elect on which charge to proceed.
35.
The trial court did not err when it separately sentenced appellant for having
weapons under disability and felony receiving stolen property.
{¶ 94} In his sixth assignment of error, appellant contends that the trial court erred
by not merging the weapons under disability and felony receiving stolen property
offenses in case No. 2020-CR-0124.
{¶ 95} Where, as here, an allied-offense challenge is not properly preserved in the
trial court, we review the matter for plain error. See State v. Bailey, 2022-Ohio-4407, ¶ 7,
citing State v. Rogers,
2015-Ohio-2459, ¶ 28. “Under the plain-error doctrine,
intervention by a reviewing court is warranted only under exceptional circumstances to
prevent injustice.” Id., at ¶ 8, citing State v. Long,
53 Ohio St.2d 91 (1978), paragraph
three of the syllabus.
{¶ 96} Appellant was convicted of four counts of having weapons while under
disability, in violation of R.C. 2923.13(A)(3), which prohibits a person who “has been
convicted of any felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse” from knowingly acquiring, having,
carrying, or using any firearm or dangerous ordnance. Appellant was also convicted of
four counts of Receiving Stolen Property, in violation of R.C. 2913.51(A), which
prohibits a person from “receiv[ing], retain[ing], or dispos[ing] of the property of another
[in this case, firearms] knowing or having reasonable cause to believe that the property
has been obtained through commission of a theft offense.”
{¶ 97} It is undisputed that these offenses were committed through the same
conduct, i.e., by appellant taking possession of the firearms and placing them in Sally
36.
Kaczka’s closet. Merger was not appropriate, however, because the offenses were of
dissimilar import. The victims and harm resulting from having weapons under disability
and receiving stolen property were different. Gary Castle was the victim of appellant’s
receiving stolen property offenses, as he suffered the harm of losing his stolen firearms.
That harm was independent from the harm that resulted from appellant’s having weapons
under disability offenses, which resulted in an increased risk to the community that he
would use the firearms. See State v. Finnell, 2015-Ohio-4842, ¶ 70-75 (1st Dist.) (finding
that having weapons under disability and receiving stolen firearms offenses did not merge
because the “harm that resulted from the weapons offense was an increased risk that the
weapons would be used by [the defendant]” and “the harm that resulted from the receipt
of the stolen property offense involved the legal owner’s loss of the firearm).
{¶ 98} Arguing against this conclusion, appellant points to State v. Beverly, 2013-
Ohio-1365 (2d Dist.), wherein the Second District Court of Appeals concluded that
because the offenses of having a weapon while under disability and receiving stolen
property “were not committed each with a separate animus,” the trial court erred in
failing to merge them for sentencing purposes. Id. at 47. In that case, the court did not
conduct any analysis regarding the harm between the two offenses. Accordingly, we find
it to be of limited benefit as applied to the facts of this case.
{¶ 99} Next, appellant turns our attention to State v. Skapik, 2015-Ohio-4404 (2d
Dist.). In Skapik, the court distinguished Beverly and determined that merger of the
offenses of having weapons under disability and theft was inappropriate because, under
37.
the facts of that case, there was a separate animus for each charge. As indicated above,
that is not the case here. In addition, the court in Skapik, like the court in Beverly,
conducted no analysis regarding the harm between the subject offenses. Thus, like
Beverly, Skapik is of little use in our review of the case at hand.
{¶ 100} Appellant’s sixth assignment of error is, therefore, found not well-taken.
The record in this case does not clearly and convincingly fail to support the trial
court’s consecutive-sentence findings.
{¶ 101} In his seventh and final assignment of error, appellant contends that the
trial court erred in imposing consecutive sentences that were clearly and convincingly not
supported by the record.
{¶ 102} This court reviews felony sentencing challenges under R.C.
2953.08(G)(2). See State v. Kleinhans, 2023-Ohio-2621, ¶ 24 (6th Dist.). Pursuant to
R.C. 2953.08(G)(2), an appellate court “may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing.” See
id.
{¶ 103} The appellate court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division
(I) of section 2929.20 of the Revised Code, whichever, if
any, is relevant; or
(b) That the sentence is otherwise contrary to law.
Id. at ¶ 25, citing R.C. 2953.08(G)(2).
38.
{¶ 104} Appellant does not dispute that the trial court made the statutory findings
required under R.C. 2929.14(C)(4), which permits consecutive sentences as follows:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or
sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm
caused by two or more of the multiple offenses so
committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶ 105} In addressing the factors under R.C. 2929.14(C)(4), appellant challenges
the weight the trial court attributed to each of the factors rather than the absence of
supporting evidence for the trial court’s findings. He acknowledges his lengthy criminal
history and the fact that “there are aggravating factors connected to his conduct in three
39.
or more of the offenses for which he was being sentenced.” He also concedes that the
court found him to be without remorse for having committed the offenses for which he
was found guilty. But then he points out that none of the offenses for which he was
sentence were offenses of violence or sex offenses. He also notes that the “highest
felonies involved were third-degree-felony offenses – weapon under disability and
tampering with evidence.”
{¶ 106} Although appellant agrees that the findings are “supported by this record
for at least some consecutive impositions,” he also states that “some of the increases [in
the length of appellant’s sentence] through the consecutive impositions are clearly and
convincingly not supported by this record.”
{¶ 107} In making his argument, appellant urges this court to conduct a “multi-
leveled review of consecutively imposed prison terms for multiple felony offenses,”
wherein “each time a court aims to enhance the length of the prison sentence through a
consecutive imposition, the three findings required by R.C. 2929.14(C)(4) must be
evaluated anew to determine whether such an additional increase is clearly and
convincingly not supported by the record.” Appellant argues that this “recursive approach
gives full effect to all the plain language in both R.C. 2929.14(C)(4) and R.C.
2953.08(G)(2).”
{¶ 108} Recently, the Ohio Supreme Court addressed the proper review of
consecutive sentences under R.C. 2929.14(C)(4) in State v. Glover, 2024-Ohio-5195. The
Court reiterated that the trial court must engage in a three-step analysis before imposing a
40.
consecutive sentence under R.C. 2929.14(C)(4). Id. at ¶ 38. In addition, the court
addressed the standard for reversing a consecutive sentence, stating,
Nowhere does the appellate-review statute direct an appellate
court to consider the defendant’s aggregate sentence….
Id. at ¶ 43.
{¶ 109} The court further held:
The statute does not permit an appellate court to simply
substitute its view of an appropriate sentence for that of the
trial court. An appellate court’s inquiry is limited to a review
of the trial court’s R.C. 2929.14(C) findings. R.C.
2953.08(G)(2). Only when the court of appeals concludes that
the record clearly and convincingly does not support the trial
court’s findings or it clearly and convincingly finds that the
sentence is contrary to law is it permitted to modify the trial
court’s sentence. Id.
…
…. “‘[C]lear and convincing evidence’ is a degree of proof
that is greater than a preponderance of the evidence but less
than the beyond[-]a-reasonable-doubt standard used in
criminal cases. State v. Gwynne, 2023-Ohio-3851, ¶ 14 (lead
opinion). [Additonal citation omitted.]
Id. at ¶ 44, 46. In Glover, the court explained that the language of R.C. 2953.08(G)(2)
expresses the General Assembly’s intent that appellate courts employ a deferential
standard to the trial court’s consecutive-sentence findings and do not simply substitute
their judgment for that of a trial court. Id. at ¶ 46.
{¶ 110} Applying the appellate-review statute in this way, we find that the record
in this case does not clearly and convincingly fail to support the trial court’s consecutive-
sentence findings. To perform appellant’s “multi-leveled review” of his consecutively
41.
imposed prison terms would be outside our role in evaluating whether the trial court’s
sentencing findings clearly and convincingly were not supported by the record.
Appellant’s seventh assignment of error is, therefore, found not well-taken.
Conclusion
{¶ 111} The judgment of the Erie County Court of Common Pleas is affirmed in
part and reversed in part. Because appellant’s convictions for disrupting public services
and tampering with evidence are allied offenses of similar import, we reverse and vacate
those convictions, and remand this case to the trial in order that the State may elect on
which charge to proceed. Appellant and appellee are to divide the costs of appeal
pursuant to App.R. 24.
Judgment affirmed, in part, reversed,
in part, vacated, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
42.
