[Cite as State v. Lightner, 2010-Ohio-483.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 6-09-03 

 v. 

STEVEN LIGHTNER, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. 20082125 CRI 

Judgment Affirmed 

Date of Decision: February 16, 2010 

 

APPEARANCES: 

Scott B. Johnson for Appellant 

Bradford W. Bailey for Appellee 
Case No. 6-09-03 

-2-

SHAW, J. 

{¶1} Defendant-Appellant Steven Lightner, Jr. (“Lightner”) appeals from 

the February 9, 2009 Judgment Entry of the Court of Common Pleas of Hardin 

County, Ohio sentencing him to seven years and ten months in prison for one 

count of Burglary, in violation of R.C. 2911.12(A)(2), a felony of the second 

degree, three counts of Grand Theft of Checks, in violation of R.C. 2913.02(A)(1), 

felonies of the fifth degree, three counts of Receiving Stolen Property, in violation 

of R.C. 2913.51(A)(C), felonies of the fifth degree, and one count of Engaging in 

a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1), (B)(1), a felony 

of the first degree. 

{¶2} This matter stems from criminal conduct occurring on or about 

January 23, 2008, at the residence of Steven and Deb Sons, located at 613 East 

Pattison Street, Kenton, Ohio. The Sons were on vacation from the 16th or 17th of 

January until January 26, 2008. Upon returning home from vacation, the Sons 

discovered items missing from their home. 

{¶3} The thefts were reported when Patrolman Robert Vogel was called 

to the residence at 613 East Pattison on January 26, 2008. When Patrolman Vogel 

arrived at 613 East Pattison, the Sons reported that multiple items had been stolen 

from the home. The Sons reported that quite a few power tools were missing, 

valued at over one thousand dollars, at least four checks, and a television were 
Case No. 6-09-03 

-3-

missing. The stolen checks belonged to two different accounts. Two checks were 

from a Liberty Bank account and two checks were from a Home Savings and Loan 

account. 

{¶4} On January 27, 2008, the Sons filed a supplemental report with the 

police when they found some jewelry to also be missing, including diamond 

earrings. In total, over fifty-two hundred dollars worth of property was found 

missing. The Sons also found that damage had been done to their vehicles. A 

2006 Harley Davidson had been wrecked with damage totaling $3,628. Steven 

Sons testified that no one ever had permission to drive the motorcycle. 

{¶5} While the Sons were on vacation, Sadie Zachariah (“Zachariah”) and 

the Sons’ adult children were supposed to be watching the residence at 613 East 

Pattison. Steve Sons specifically testified at trial that no one else had permission 

to be in the home while they were gone. Zachariah testified that while she was 

watching the house, she had let some other people into the home. In fact, 

Zachariah testified that not only did she have people over while she was watching 

the house, but that they were there without her permission on at least one occasion. 

One of the people Zachariah invited to her home was John Byers (“Byers”). Byers 

testified that when he was in the Sons’ home, visiting Zachariah, Lightner, Jesse 

Lightner, Josh Keim, and others were also present in the home. Byers also 
Case No. 6-09-03 

-4-

testified that he was at the Sons’ residence on both January 23 and January 24, 

2008. 

{¶6} Byers testified that Sadie was having a party at the house, with 

people playing cards, using the Sons’ computer, and just hanging around. 

Zachariah testified that she did not see anyone steal any property while she was at 

the home, but that she was not always watching her guests. Additionally, at the 

time she was house-sitting, Zachariah was still in high school. One day she came 

back to the house and could tell that someone had been in the home because food 

was out and things appeared to be missing. Zachariah testified that she could not 

remember if she had locked the garage door on that day. 

{¶7} Byers testified that Lightner also asked him if he knew anyone who 

wanted to purchase a television, apparently referring to the Sons’ television. 

According to Byers, he and Josh Keim got into an argument with Steve Lightner 

concerning whether to “rob” the Sons’ home. Byers and Keim left after that 

discussion because they did not want to “rob” the home and Lightner was 

aggravated because they did not want to help Lightner move the items he wanted 

to steal. 

{¶8} On January 23, 2008, Lightner and Byers used checks stolen from 

the Sons at the Shell gas station in Kenton, Ohio. The checks were identified as 

belonging to the Sons based on the information on the check as well as the check 
Case No. 6-09-03 

-5-

number. One check was filled out and used by Lightner to purchase gas and 

cigarettes. Byers used the second check, also to purchase gasoline and cigarettes. 

{¶9} When questioned at trial, Byers testified that he got the check from 

Lightner who said that he got them from Zachariah. Byers further testified that 

Zachariah had told them that they could use the Sons’ vehicle to take Lightner to 

court in Findlay, Ohio, which explains the fact that Byers, Lightner, and 

Lightner’s brother, Jesse Lightner, put gas in one of their cars and an SUV 

belonging to the Sons with the stolen checks. Zachariah testified that she did not 

give Lightner the checks, and that he took the checks on his own. She also 

testified that she did not give them permission to drive the vehicle. 

{¶10} Derek Lowe, a clerk at the Shell gas station, testified that on 

February 7th or 8th of 2008, Lightner came into the gas station with a friend, Josh 

Morrisey, and attempted to purchase gas and cigarettes with a check. Lowe 

testified that he could not take the check because Lightner did not have 

identification that matched the information on the check. Although Lowe did not 

remember the name on the check, he remembered that it was a woman’s name on 

the check. Lowe also testified that Byers was not with Lightner on this occasion. 

{¶11} Jesse Lightner also found the keys to Steven Sons’ motorcycle, took 

it out for a drive, and subsequently wrecked it. 
Case No. 6-09-03 

-6-

{¶12} On July 8, 2008 Lightner was indicted on one count of Burglary, in 

violation of R.C. 2911.12(A)(2), a felony of the second degree; two counts of 

Grand Theft of a Motor Vehicle, in violation of R.C. 2913.02(A)(3),(B)(5), 

felonies of the fourth degree; one count of Theft, in violation of R.C. 

2913.02(A)(1),(B)(5), a felony of the fourth degree; eleven counts of Receiving 

Stolen Property, in violation of R.C. 2913.51(A),(C), felonies of the fifth degree; 

one count of Receiving Stolen Property a Motor Vehicle, in violation of 

R.C.2913.51(A),(C), a felony of the fourth degree; ten counts of Grand Theft of 

Checks, in violation of 2913.02(A)(1), felonies of the fifth degree; and one count 

of Engaging in a Pattern of Corrupt Activity, in violation of R.C. 

2923.32(A)(1),(B)(1), a felony of the first degree. 

{¶13} Lightner was arraigned on July 17, 2008, and pled not guilty to all of 

the charges contained in the indictment. On October 3, 2008, the State issued a 

bill of particulars. On January 16, 2009, the State moved to dismiss seven counts 

of Grand Theft of Checks and seven counts of Receiving Stolen Property. The 

trial court dismissed those counts on January 21, 2009. 

{¶14} A jury trial was held on February 3, 2009. The jury convicted 

Lightner of one count of Burglary, in violation of R.C. 2911.12(A)(2), a felony of 

the second degree, three counts of Grand Theft of Checks, in violation of R.C. 

2913.02(A)(1), felonies of the fifth degree, three counts of Receiving Stolen 
Case No. 6-09-03 

-7-

Property, in violation of R.C. 2913.51(A),(C), felonies of the fifth degree, and one 

count of Engaging in a Pattern of Corrupt Activity, in violation of R.C. 

2923.32(A)(1), (B)(1), a felony of the first degree. 

{¶15} Lightner was sentenced on February 9, 2009. At sentencing, the trial 

court determined that the counts of Grand Theft of Checks and Receiving Stolen 

Property were allied offenses. The State elected to proceed to sentencing on the 

counts of Grand Theft of Checks. The trial court sentenced Lightner to two years 

in prison for one count of Burglary, ten months in prison for each count of Grand 

Theft of Checks, and five years in prison for one count of Engaging in a Pattern of 

Corrupt Activity. The trial court ordered the ten month sentences for Grand Theft 

of Checks served concurrently to each other, but consecutive to the sentences for 

Burglary and Engaging in a Pattern of Corrupt Activity for a total prison sentence 

of seven years and ten months. 

{¶16} Lightner now appeals, asserting four assignments of error. 

ASSIGNMENT OF ERROR I

THE EVIDENCE ADDUCED AT THE TRIAL WAS 

INSUFFICIENT TO SUPPORT A CONVICTION FOR 

ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, 

BURGLARY, GRAND THEFT OF CHECKS(S), OR THE 

ALLIED OFFENCES [SIC] OF RECEIVING STOLEN 

PROPERTY. 

ASSIGNMENT OF ERROR II

THE CONVICTION ON THE RICO CHARGE WAS 

ERROREOUS [SIC] IN THAT IT VIOLATED THE 
Case No. 6-09-03 

-8-

APPELLANT’S CONSTITUTIONAL RIGHT AGAINST 

DOUBLE JEOPARDY. 

ASSIGNMENT OF ERROR III

THE TRIAL JUDGED [SIC] IN SENTENCING THE 

DEFENDANT ON THE RICO COUNT TO A PRISON TERM 

CONSECUTIVE TO A PRISON TERM IMPOSED FOR A 

PREVIOUS RICO CONVICTION WHICH WAS BASED ON 

THE SAME FACTS AND CIRCUMSTANCES AND SHOULD 

HAVE BEEN DEEMED AN ALLIED OFFENSE TO THE 

PRESENT CHARGE. 

ASSIGNMENT OF ERROR IV

THE DEFENDANT WAS NOT AFFORDED COMPETENT 

COUNSEL IN THAT THE COURT-APPOINTED COUNSEL 

FAILED TO PROTECT THE DEFENDANT’S 

CONSTITUTIONAL RIGHTS AGAINST DOUBLE 

JEOPARDY. 

First Assignment of Error 

{¶17} In his first assignment of error, Lightner argues that the evidence 

introduced at trial was insufficient to support his convictions. Reviewing a 

challenge to the sufficiency of the evidence, requires this Court to examine the 

evidence in the light most favorable to the prosecution. In State v. Jenks (1991), 61 

Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court set forth the sufficiency 

of the evidence test as follows: 

[A]n appellate court's function when reviewing the sufficiency of 

the evidence to support a criminal conviction is to examine the 

evidence admitted at trial and determine whether such evidence, 

if believed, would convince the average mind of the defendant's 

guilt beyond a reasonable doubt. The 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 
Case No. 6-09-03 

-9-

essential elements of the crime proven beyond a reasonable 

doubt. 

Jenks, 61 Ohio St.3d at 273. 

{¶18} Lightner was convicted of Burglary, Grand Theft of Checks, 

Receiving Stolen Property, and Engaging in a Pattern of Corrupt Activity. 

Burglary is defined by R.C. 2911.12(A)(2), in pertinent part, as follows: 

(A) No person, by force, stealth, or deception, shall do any of 

the following: 

(2) Trespass in an occupied structure or in a separately 

secured or separately occupied portion of an occupied structure 

that is a permanent or temporary habitation of any person when 

any person other than an accomplice of the offender is present 

or likely to be present, with purpose to commit in the habitation 

any criminal offense; 

{¶19} Although Lightner does not appear to contest the Burglary 

conviction, we choose to address it nevertheless. Zachariah testified that Lightner 

and his friends were in the house on approximately three separate occasions, and 

while they may have had permission to be in the house on at least one occasion, 

they never had permission to take anything from the house. Moreover, although 

Zachariah did not see anyone remove any property from the home, she testified 

that she was not always watching her guests and that on at least one occasion, they 

came over uninvited. 

{¶20} Zachariah testified that she returned from attending school one day 

and noticed that someone had been in the home. She noticed that food and 
Case No. 6-09-03 

-10-

beverage containers were present that were not there when she left for school that 

day. Furthermore, Zachariah then noticed that the Sons’ SUV had been taken out 

and now had a full gas tank. 

{¶21} Steve Sons testified as to what property was missing from the home, 

and Byers testified that Lightner had taken checks from the Sons. Therefore, we 

find that there was sufficient evidence to convince the jury that on at least one 

occasion Lightner trespassed, uninvited in the house with the purpose of 

committing a theft offense therein, and therefore committed Burglary. 

{¶22} Turning next to Lightner’s convictions for Grand Theft of Checks 

and Receiving Stolen property, found to be allied offenses by the trial court. 

Grand Theft of Checks is defined by R.C. 2913.02(A)(1), in pertinent part, as 

follows: 

(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: 

(1) Without the consent of the owner or person authorized to 

give consent 

{¶23} Receiving Stolen Property is defined by R.C. 2913.51(A),(C), in 

pertinent part, as follows: 

No person shall receive, retain, or dispose of property of another 

knowing or having reasonable cause to believe that the property 

has been obtained through commission of a theft offense. 
Case No. 6-09-03 

-11-

{¶24} Byers testified that on two instances he and Lightner took checks 

from the Sons to a gas station and purchased gas and cigarettes. Moreover, Byers 

was able to identify the exact checks used, which matched the checks missing 

from the Sons’ residence. Moreover, Detective Vogel testified that two other 

checks were missing, and Lowe testified that Lightner attempted to use another 

check that did not belong to him. 

{¶25} It is settled law in Ohio that “circumstantial and direct evidence 

inherently possess the same probative value.” Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492. Therefore, there was sufficient circumstantial evidence to believe 

that Lightner took a third check from the Sons’ residence. 

{¶26} Finally, Lightner argues that there was insufficient evidence 

introduced at trial to prove his conviction for Engaging in a Pattern of Corrupt 

Activity. Engaging in a Pattern of Corrupt Activity is defined by R.C. 

2923.32(A)(1), as follows: 

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

enterprise shall conduct or participate in, directly or indirectly, 

the affairs of the enterprise through a pattern of corrupt activity 

or the collection of an unlawful debt. 

R.C. 2923.31(C) defines “enterprise” as the following: 

* * * any individual, sole proprietorship, partnership, limited 

partnership, corporation, trust, union, government agency, or 

other legal entity, or any organization, association, or group of 

persons associated in fact although not a legal entity. 

‘Enterprise’ includes illicit as well as licit enterprises.
Case No. 6-09-03 

-12-

Finally, R.C. 2923.31(E) defines “pattern of corrupt activity” to mean: 

two or more incidents of corrupt activity, whether or not there 

has been a prior conviction, that are related to the affairs of the 

same enterprise, are not isolated, and are not so closely related 

to each other and connected in time and place that they 

constitute a single event. 

{¶27} R.C. 2923.32 defines “corrupt activity” as “engaging in, attempting 

to engage in, conspiring to engage in, or soliciting, coercing, or intimidating 

another person to engage in * * * conduct constituting” one of the predicate 

offenses listed in R.C. 2923.31(I)(2). See, State v. Adkins, 136 Ohio App.3d 765, 

737 N.E.2d 1021, 2000-Ohio-1656; State v. Schlosser (1997), 79 Ohio St.3d 329, 

335, 681 N.E.2d 911, 915-916. 

{¶28} Although the predicate acts in R.C. 2923.31 need not be supported 

by convictions, their occurrence must at least be proven beyond a reasonable 

doubt. See State v. Lightner, 3rd Dist. No. 6-08-11, 2009-Ohio-544; State v. Burkitt

(1993), 89 Ohio App.3d 214, 222-23, 624 N.E.2d 210. In addition, the State must 

set forth the requisite predicate acts in the indictment that it intends on using as the 

foundation for a R.C. 2923.32 offense. State v. Warden, 6th Dist. No. WD-03-065, 

2004-Ohio-6306, ¶ 48. This Court has previously stated that “where a defendant is 

required to defend himself against additional unindicted predicate offenses, he 

should be notified of such by identification of those charges within the 

indictment.” State v. Roberson, 3rd Dist. No. 5-02-45, 2003-Ohio-4627, ¶ 13, 
Case No. 6-09-03 

-13-

quoting State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801, 783 N.E.2d 591, ¶ 

23. 

{¶29} Lightner contends that the State failed to establish two instances of 

corrupt activity sufficient to support his conviction for Engaging in a Pattern of 

Corrupt Activity. In the indictment, the State offered the following to establish the 

pattern of corrupt activity: 

STEVEN LIGHTNER JR., from on or about May 4, 2003 

through on or about March 31, 2008, in Hardin County, Ohio, 

while employed by or associated with an enterprise did conduct 

or participate in, directly or indirectly, the affairs of the 

enterprise through a pattern of corrupt activity to-wit: 

§2911.12(A)(2) Burglary [F2]; §2913.02(A)(1),(B)(5), Grand 

Theft of a Motor Vehicle [F4]; §2913.02(A)(3),(B)(5), Grand 

Theft of a Motor Vehicle[F4]; §2913.02(A)(1),(B)(5), Theft[F4]; 

§2913.51(A),(C), Receiving Stolen Property[F5]; §2913.51(A),(C), 

Receiving Stolen Property[F5]; §2913.02(A)(1) Grand Theft of 

Check(s) [F5]; §2913.02(A)(1) Grand Theft of Check(s) [F5]; 

§2913.02(A)(1) Grand Theft of Check(s) [F5]; §2913.02(A)(1) 

Grand Theft of Check(s) [F5]; §2913.02(A)(1) Grand Theft of 

Check(s) [F5]; §2913.02(A)(1) Grand Theft of Check(s) [F5]; 

§2913.02(A)(1) Grand Theft of Check(s) [F5]; §2913.02(A)(1) 

Grand Theft of Check(s) [F5]; §2913.02(A)(1) Grand Theft of 

Check(s) [F5]; §2913.02(A)(1) Grand Theft of Check(s) [F5]; 

§2913.51(A),(C), Receiving Stolen Property[F5]; §2913.51(A),(C), 

Receiving Stolen Property[F5]; §2913.51(A),(C), Receiving Stolen 

Property[F5]; §2913.51(A),(C), Receiving Stolen Property[F5]; 

§2913.51(A),(C), Receiving Stolen Property[F5]; §2913.51(A),(C), 

Receiving Stolen Property[F5]; §2913.51(A),(C), Receiving Stolen 

Property[F5]; §2913.51(A),(C), Receiving Stolen Property[F5]; 

§2913.51(A),(C), Receiving Stolen Property[F5]; §2913.51(A),(C), 

Receiving Stolen Property[F5], and Receiving Stolen Property. 

Theft offenses in municipal courts of Ohio; thefts of Motor 

Scooter on or about May 4, 2003 and Receiving Stolen Property 

namely, ATV’s on or about March 2, 2007 through and including 
Case No. 6-09-03 

-14-

March 31, 2007; when the total value of the thefts, property, 

contraband, etc. exceeds five hundred dollars ($500.00); in 

violation of Ohio Revised Code §2923.32(A)(1),(B)(1), Engaging 

in a Pattern of Corrupt Activity[F1], a felony of the first degree. 

{¶30} Therefore, the following acts could have been used to prove the 

existence of two predicate acts of corrupt activity: Burglary, two instances of 

Grant Theft of a Motor Vehicle, one instance of Theft, one instance of Receiving 

Stolen Property; one instance of Receiving Stolen Property – a motor vehicle, ten 

instances of Grand Theft of Checks, ten instances of Receiving Stolen Property – 

checks, municipal court theft offenses, thefts of motor scooters in 2003, and thefts 

of ATV’s in 2007. 

{¶31} Prior to trial, the State dismissed seven of the counts of Receiving 

Stolen Property – checks and Grand Theft of Checks. Additionally, at trial, the 

State conceded that it had not proven the charges of Grand Theft of a Motor 

Vehicle and Receiving Stolen Property – a motor vehicle. Moreover, the jury 

found Lightner not guilty of the charges of Theft and Receiving Stolen Property 

that did not concern the checks. 

{¶32} However, viewing the evidence presented at trial, we find that the 

State successfully proved multiple predicate offenses. As previously discussed, 

sufficient evidence was introduced to prove the convictions for Burglary, Grand 

Theft of Checks, and the Receiving Stolen Property charges. Additionally, we are 

mindful that a single defendant need not commit the predicate offenses. Instead 
Case No. 6-09-03 

-15-

the State must prove that the enterprise engaged in corrupt activity, but it was not 

required that the State prove Lightner directed, controlled, or directly participated 

in the activity. The State need only prove that Lightner assisted the enterprise. 

See State v. Siferd, 151 Ohio App.3d 103, 783 N.E.2d 591, 2002-Ohio-6801. 

{¶33} Although the State conceded that Lightner had not committed the 

Grand Theft of Motor Vehicles, Byers testified that Jesse Lightner drove and 

wrecked Steve Sons’ motorcycle during the course of their visit in the home. 

Byers also testified that Lightner used the Sons’ SUV without their permission. 

{¶34} Testimony was given by Steve Sons as to the extent of belongings 

stolen from their home while the Sons were on vacation. The theft extended 

beyond the checks at issue in the present case. Jewelry, power tools, and a 

television were also taken from the home, and Byers testified that Lightner 

expressed interest in stealing the Sons’ television. Although the State was unable 

to prove that Lightner himself took those items, this Court notes that evidence was 

introduced at trial that would indicate those items were taken by Lightner, his 

brother Jesse, or their associates. 

{¶35} Therefore, the jury was free to consider the Burglary, the charges of 

Grand Theft of Checks, the Receiving Stolen Property charges, the unlawful use 

and damage to the motor vehicles, and the theft of the other items in the Sons’ 

home. Moreover, this Court is not convinced by Lightner’s argument that all of 
Case No. 6-09-03 

-16-

those occurrences were so closely related in time as to constitute a single incident. 

Testimony indicates that the conduct at issue in the present case occurred over the 

course of the Son’s vacation, lasting approximately a week. Reasonable minds 

could conclude that these events were not so closely related that they constituted a 

single incident, but instead were repeated incidents so related that they constituted 

a pattern of corrupt activity. See State v. Gasser (1993), 89 Ohio App.3d 544, 626 

N.E.2d 127. 

{¶36} Accordingly, we find that there was sufficient evidence to prove 

Lightner’s conviction for Engaging in a Pattern of Corrupt Activity based on the 

acts occurring during the Sons’ vacation alone. Accordingly, Lightner’s first 

assignment of error is overruled. 

Second and Third Assignments of Error 

{¶37} Lightner elected to brief his second and third assignments of error 

together. Accordingly, we elect to treat them as a single assignment of error. In 

his second and third assignments of error, Lightner argues that his conviction for 

Engaging in a Pattern of Corrupt Activity was barred by double jeopardy. In 

espousing this argument, Lightner assumes that the 2003 or 2007 incidents of theft 

of motor scooters or ATVs, which were used as predicate offenses for a previous 

conviction of Engaging in a Pattern of Corrupt Activity, were necessary predicate 

offenses for the Engaging in a Pattern of Corrupt Activity conviction in the present 
Case No. 6-09-03 

-17-

case. However, based on our disposition of Lightner’s previous assignment of 

error, finding that the Engaging in a Pattern of Corrupt Activity charge could be 

proven with predicate offenses based on conduct from only the January 2008 

incident involving the Sons’ home, we find it unnecessary to address the double 

jeopardy argument premised upon the predicate offenses from the prior conviction 

of Engaging in a Pattern of Corrupt Activity. Accordingly, these two assignments 

of error are overruled as moot. 

Fourth Assignment of Error 

{¶38} In his fourth assignment of error, Lightner argues that he received 

ineffective assistance of counsel at trial. An ineffective assistance of counsel 

claim requires proof that trial counsel’s performance fell below objective 

standards of reasonable representation and that the defendant was prejudiced as a 

result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two 

of the syllabus. To show that a defendant has been prejudiced by counsel’s 

deficient performance, the defendant must prove that there exists a reasonable 

probability that, but for counsel’s errors, the outcome at trial would have been 

different. State v. Bradley, 42 Ohio St.3d 136,at paragraph three of the syllabus. 

“Reasonable probability” is a probability sufficient to undermine confidence in the 

outcome of the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 
Case No. 6-09-03 

-18-

819 (superseded by constitutional amendment on other grounds as recognized by 

State v. Smith, 80 Ohio St.3d 89, 103, 684 N.E.2d 668, 1997-Ohio-355).

{¶39} Furthermore, the defendant must overcome the presumption that 

counsel provided competent representation and must show that counsel’s actions 

were not trial strategies prompted by reasonable professional judgment. 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See 

also, State v. Richardson, 3rd Dist. No. 13-06-21, 2007-Ohio-115, citing State v. 

Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. Tactical or 

strategic decisions, even if unsuccessful, generally do not constitute ineffective 

assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965, 1995-Ohio104. Additionally, the court must look to the totality of the circumstances and not 

isolated instances of an allegedly deficient performance. State v. Fritz, 3rd Dist. 

No. 13-06-39, 2007-Ohio-3138, ¶35, citing State v. Malone (Dec. 13, 1989), 2nd 

Dist. No. 10564, 1989 WL 150798. 

{¶40} Given this Court’s findings in Lightner’s first, second, and third 

assignments of error, we cannot find that counsel’s performance fell below an 

objective standards of reasonable representation. For example, even if we could 

assume that some double jeopardy bar existed and counsel had failed to object, our 

finding that Lightner’s conviction for Engaging in a Pattern of Corrupt activity 

was sustained by sufficient evidence from the facts of the present case, precludes a 
Case No. 6-09-03 

-19-

finding of ineffective assistance of counsel based on a failure to object. 

Accordingly, Lightner’s fourth assignment of error is overruled. 

{¶41} Based on the foregoing, the February 9, 2009 Judgment Entry of the 

Court of Common Pleas of Hardin County, Ohio is affirmed. 

Judgment Affirmed 

PRESTON, J., concurs. 

/jlr 

ROGERS, J., Concurring in Part and Dissenting in Part. 

{¶42} I concur with the majority’s analysis and disposition of Lightner’s 

fourth assignment of error; however, I respectfully dissent from the majority’s 

analysis and disposition of Lightner’s first assignment of error pertaining to his 

conviction for engaging in a pattern of corrupt activity and one of his convictions 

for grand theft of a check. Additionally, as I would sustain Lightner’s first 

assignment of error, I would find his second and third assignments of error to be 

moot and would not address them. 

{¶43} In his first assignment of error, Lightner argues, in part, that there 

was insufficient evidence to support his conviction for engaging in a pattern of 

corrupt activity. I agree that all of the offenses committed were so closely related 

in time as to constitute a single incident. The testimony at trial was unclear as to 

when the various offenses occurred over the course of the victims’ approximate 
Case No. 6-09-03 

-20-

one-week vacation, and the evidence does not preclude the possibility that all of 

the offenses took place in one day. In fact, other than his conviction for engaging 

in a pattern of corrupt activity, Lightner was only convicted of burglary and theft 

of checks1

, and the thefts apparently occurred during the burglary. 

{¶44} Additionally, I would find that the majority impermissibly stacked 

inference upon inference in finding sufficient evidence existed to convict Lightner 

for theft of the third check. Here, evidence was heard that the Sons reported that 

four checks were missing from their residence; that Lightner used one check stolen 

from the Sons to purchase gasoline and cigarettes; that Lightner’s friend, Byers, 

used a second check stolen from the Sons to purchase gasoline and cigarettes; and, 

that Lightner attempted to use a third check several weeks later to purchase 

gasoline and cigarettes, but that the clerk would not let him use the check because, 

although he could not remember the name on the check, it was a woman’s name 

and Lightner did not have identification that matched the information on the 

check. As this Court recently stated, “a trier of fact is allowed to make reasonable 

inference based on the evidence presented before him, [however] ‘[a] trier of fact 

may not rely on an inference based entirely upon another inference, unsupported 

by any additional fact or another inference from other facts.’” State v. Fields, 3d

 

1

 We note that Lightner was also found guilty of three counts of receiving stolen property; however, the 

trial court found those to be allied offenses with the three counts of theft of checks and the State elected to 

proceed to sentencing on the theft of checks convictions. 
Case No. 6-09-03 

-21-

Dist. No. 16-09-05, 2009-Ohio-5909, ¶23, quoting State v. Taylor, 7th Dist. No. 

98 JE 31, 2001-Ohio-3162. See, also, Hurt v. Charles J. Rogers Transp. Co.

(1955), 164 Ohio St. 329, 331-335. Here, I believe that the conclusion that 

Lightner stole a third check is an impermissible inference upon an inference when 

based solely upon evidence that four checks were missing from the Sons, that 

Lightner and his friend used two of the Sons’ checks, and that Lightner attempted 

to use another check several weeks later that was not identified as belonging to the 

Sons. 

/jlr