[Cite as State v. Congrove, 2012-Ohio-1159.]

COURT OF APPEALS 

 MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Patricia A. Delaney , P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Julie A. Edwards, J. 

-vs- : 

 : Case No. 11-CA-5 

SHERRI CONGROVE : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of 

Common Pleas, Case No. 2010CR0137 

 

JUDGMENT: AFFIRMED IN PART; REVERSED AND 

REMANDED IN PART 

DATE OF JUDGMENT ENTRY: March 8, 2012 

APPEARANCES: 

For Appellant: For Appellee: 

 

DAVID H. BIRCH CHARLES HOWLAND 

2 West Winter MORROW COUNTY PROSECUTOR 

Delaware, OH 43015 

 JOCELYN STEFANCIN 

 60 East High Street 

 Mt. Gilead, OH 43338 

 
[Cite as State v. Congrove, 2012-Ohio-1159.]

Delaney, J. 

{¶1} Defendant-Appellant Sherri Congrove appeals from the March 23, 2011 

judgment entry of the Morrow County Court of Common Pleas sentencing her upon 

her conviction of one count of complicity to burglary and one count of theft. 

Facts and Procedural History

{¶2} This case arose on November 23, 2009, when a group home for 

developmentally disabled persons located at 324 Pine Drive, Mount Gilead, was 

burglarized. Items stolen included a television, a Nintendo Wii gaming system and 

several games, a tote bag, and a Dewalt miter saw; the total value of these items was 

approximately $1,200. 

{¶3} Investigators ultimately determined that Travis Bunnell and Michael 

Champ broke into the Pine Drive group home and stole the items. This burglary was 

one of a string of break-ins throughout Mt. Gilead in November 2009. 

{¶4} At the time of this burglary, Bunnell and his girlfriend Jessica Spriggs 

lived with Appellant. Both Spriggs and Bunnell admitted to using heroin and to taking 

part in multiple burglaries for money to support their habits. Appellant, Spriggs, and 

Bunnell were all friends of Michael Champ. 

{¶5} The burglary investigation indicated that Appellant picked up Bunnell and 

Champ after the group home burglary and gave them a ride back to her house. 

Appellant was charged by indictment with one count of complicity to burglary, R.C. 

2911.12(A)(3), a felony of the third degree and one count of theft, R.C. 2913.02, a 

felony of the fifth degree. 
Morrow County, Case No. 11-CA-5 3 

{¶6} At trial, the State’s witnesses consisted of Spriggs and Bunnell; Capt. 

Kenneth Underwood, the officer who took the initial report on the Pine Drive burglary; 

Ptl. Mark Meftah, who took the initial report on a burglary on North Cherry Street, Mt. 

Gilead; Sgt. Thomas Cronnewitt, who took a report on two additional burglaries in Mt. 

Gilead (Baker Street and East Cedar), and Terri Smith, the group home administrator 

who provided the value of items stolen from the residence. 

{¶7} Meftah testified over objection from the defense about an unrelated 

burglary on November 23, subsequent to the burglary Appellant was charged with. He 

noted that the burglary at the Kenneth Williams residence at 222 North Cherry Street 

included, among other items, loose change. This loose change became key evidence 

in tying Appellant to knowledge of the burglary scheme. 

{¶8} Sgt. Thomas Cronnewitt testified about two burglary reports he took, 

including one at 201 East Cedar Street in which two of the items stolen included 

firearms: a silver Cobra Derringer 9-millimeter and an H & R 32-caliber revolver. 

These items also eventually connected to Appellant’s taped statement in which she 

admitted knowledge of the burglaries and knew that Bunnell had stolen a firearm. 

{¶9} The State’s final evidence consisted of the audiotape of Appellant’s 

interview with Officer Foley, who solved the string of burglaries. Foley did not testify 

at trial. The defense objected to admission of the audiotape because Appellant made 

several references to her own criminal history. The trial court overruled the objection, 

offered to give a limiting instruction, and the tape was played. 

{¶10} In the recorded statement to investigators, Appellant was Mirandized. 

She denied involvement in any of the burglaries, including the Pine Drive group home, 
Morrow County, Case No. 11-CA-5 4 

but she did admit to giving Bunnell a ride. (T. 4.) Appellant also revealed knowledge 

of the burglaries in general. She stated that Spriggs would text message Bunnell that 

a house was a potential location for a break-in, and then Spriggs would wait outside 

and text Bunnell while he was inside the house if police were nearby. Appellant 

admitted to taking a bag of loose change to a bank to cash in for Spriggs and Bunnell. 

Appellant knew that Bunnell was attempting to sell a firearm, and that Spriggs made 

arrangements to sell a television to someone. Appellant also stated that she saw 

Spriggs with a Wii console with cords coming out of it. 

{¶11} In denying her involvement, Appellant raised the topic of her own 

criminal history, stating that she has been to the penitentiary three times and “can’t do 

any more time.” 

{¶12} The trial court instructed the jury to disregard any references to 

Appellant’s prior criminal record in the audiotape. 

{¶13} Appellant did not testify at trial. 

{¶14} The jury found Appellant guilty as charged. At sentencing, the trial court 

mentioned that the two offenses were crimes of similar import, but sentenced 

Appellant on both. She received a sentence of four years on count one to be served 

concurrently with eleven months on count two, with the prison term suspended on the 

condition that appellant completes a community control sanction. 

{¶15} Appellant appeals from the judgment entry of conviction and sentence. 

{¶16} Appellant raises two Assignments of Error: 
Morrow County, Case No. 11-CA-5 5 

{¶17} “I. THE TRIAL COURT ERRED BY FINDING THAT COUNT ONE, 

BURGLARY, AND COUNT TWO, THEFT, DO NOT MERGE FOR PURPOSES OF 

SENTENCING.” 

{¶18} “II. THE TRIAL COURT ERRED BY ALLOWING THE 

PROSECUTION, OVER OBJECTION, TO ATTACK THE APPELLANT’S 

CHARACTER ALLEGING PRIOR CRIMINAL CONVICTIONS AND IMPRISONMENT 

IN THE STATES [SIC] CASE IN CHIEF.” 

I. 

{¶19} In her first assignment of error, Appellant argues that Count I, complicity 

to burglary, should have merged with Count II, theft, for purposes of sentencing. We 

agree. 

{¶20} We begin our analysis with the statute addressing allied offenses of 

similar import and the impact on sentencing. R.C. 2941.25 states: 

(A) Where the same conduct by defendant can be construed to constitute two 

or more allied offenses of similar import, the indictment or information may 

contain counts for all such offenses, but the defendant may be convicted of only 

one. 

(B) Where the defendant's conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses of the 

same or similar kind committed separately or with a separate animus as to 

each, the indictment or information may contain counts for all such offenses, 

and the defendant may be convicted of all of them. 
Morrow County, Case No. 11-CA-5 6 

{¶21} The Ohio Supreme Court held in State v. Whitfield that upon guilty 

verdicts on allied offenses, the State must elect which of the offenses it chooses to 

proceed to sentencing on; the court must accept the State’s choice and merge the 

crimes into a single offense for the purpose of sentencing. 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 122, ¶24. 

{¶22} In this case, Appellant was charged by indictment with one count of 

complicity1

 to burglary pursuant to R.C. 2911.12(A)(3), which states: “No person, by 

force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a 

separately secured or separately occupied portion of an occupied structure, with 

purpose to commit in the structure or separately secured or separately occupied 

portion of the structure any criminal offense.” 

{¶23} Appellant was also charged with one count of theft pursuant to R.C. 

2913.02: 

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; 

(2) Beyond the scope of the express or implied consent of the owner or person 

authorized to give consent; 

(3) By deception; 

(4) By threat; 

(5) By intimidation. 
Morrow County, Case No. 11-CA-5 7 

{¶24} In State v. Johnson, the Ohio Supreme Court modified the test for 

determining whether two offenses are allied offenses of similar import. 128 Ohio St.3d 

1405, 2010-Ohio-6314, 942 N.E.2d 1061. The question is whether the crimes 

represent a single act and a single state of mind: 

If the offenses correspond to such a degree that the conduct of the defendant 

constituting commission of one offense constitutes commission of the other, 

then the offenses are of similar import. If the multiple offenses can be 

committed by the same conduct, then the court must determine whether the 

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

with a single state of mind.” (Citation omitted.) If the answer to both questions 

is yes, then the offenses are allied offenses of similar import and will be 

merged. Conversely, if the court determines that the commission of one 

offense will never result in the commission of the other, or if the offenses are 

committed separately, or if the defendant has separate animus for each 

offense, then, according to R.C. 2941.25(B), the offenses will not merge. Id.,

163. 

{¶25} Johnson clarifies Ohio’s allied-offense jurisprudence because it instructs 

us not to compare the statutory elements of two offenses in the abstract but rather to 

consider, subjectively, the specific conduct of the accused. See, Johnson, 128 Ohio 

St.3d at 162. The Ohio Supreme Court has recognized that application of Johnson

“may be sometimes difficult to perform and may result in varying results for the same 

 1

 “ A charge of complicity may be stated in terms of this section, or in terms of the 
Morrow County, Case No. 11-CA-5 8 

set of offenses in different cases,” but such a result is permissible because the 

analysis is premised upon the subjective conduct of the defendant. Id., 163. 

{¶26} We find that Appellant’s act of picking up and driving the principal 

offenders after the burglary constitutes a single act with a single state of mind. We 

note that there was not a request for a bill of particulars setting up the specific nature 

of Appellant’s conduct pursuant to Crim.R. 7(E), but the indictment establishes that 

Appellant was charged solely in connection with the Pine Drive group home burglary. 

The evidence showed that in the aftermath of this burglary, she picked up Bunnell and 

Champ and gave them a ride back to her house. 

{¶27} Applying Johnson to the facts of this case, we find that it was possible to 

commit complicity to burglary and theft with the same conduct for purposes of R.C. 

2941.25. We further find that this act was accomplished with a single state of mind. 

{¶28} During sentencing, the trial court noted that the offenses of complicity to 

burglary and theft “are crimes of similar import,” but this was not reflected in the 

resulting sentence or evident from the trial court’s sentencing judgment entry. 

Appellant was sentenced to concurrent (suspended) terms of 4 years on the complicity 

and 11 months on the theft count. A trial court speaks through its journal entries. 

State v. Lehman, 5th Dist. No. 01CA12, 2001 WL 1673729 (Dec. 12, 2001), *3, citing 

State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903 (1994). 

{¶29} Accordingly, we find the conduct that qualified as the complicity to 

burglary also qualified as the theft, therefore the offenses are allied, and Appellant’s 

first assignment of error is sustained. 

 

principal offense.” R.C. 2923.03(F). 
Morrow County, Case No. 11-CA-5 9 

II. 

{¶30} In her second assignment of error, appellant argues that the trial court 

erred in admitting the audiotape of her statement to investigators, in which she 

admitted to having a prior criminal history and “three prison numbers.” We disagree. 

{¶31} The decision to admit or exclude relevant evidence is within the sound 

discretion of the trial court and will not be disturbed absent an abuse of discretion. 

See, State v. Combs, 62 Ohio St.3d 278, 581 N.E.2d 1071(1991); State v. Sage, 31 

Ohio St.3d 173, 510 N.E.2d 343 (1987). An abuse of discretion implies more than an 

error of law or judgment; instead, the term suggests that the trial court acted in an 

unreasonable, arbitrary, or unconscionable manner. See, State v. Xie, 62 Ohio St.3d 

521, 584 N.E.2d 715 (1992); State v. Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167 

(1991). In addition, when applying the abuse-of-discretion standard, a reviewing court 

may not substitute its judgment for that of the trial court. In re Jane Doe I, 57 Ohio 

St.3d 135, 138, 566 N.E.2d 1181 (1991). 

{¶32} Appellant argues that the admission of the portions of the taped interview 

in which she comments upon her own criminal history violates Evid.R. 404(B), which 

states: “Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that he acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

{¶33} In her taped statement, Appellant admitted to giving Bunnell a ride, 

admitted knowledge of the burglaries and the system by which they were carried out, 
Morrow County, Case No. 11-CA-5 10 

and tangentially mentioned her own criminal history. Appellant objected to admission 

of the statement only on the basis of the criminal history. We find that admission of 

the references by Appellant to her own criminal history, in the context of the entire 

interview and of the entire trial, is not reversible error. Harmless errors are to be 

disregarded and the erroneous admission of evidence is not reversible unless it 

affects a substantial right that prejudices the defendant. See, Crim.R. 52(A); Evid.R. 

103(A); State v. Brown, 65 Ohio St.3d 483, 485, 605 N.E.2d 46 (1992). 

{¶34} Furthermore, the trial court instructed the jury to disregard any reference 

to appellant’s prior criminal record in the audiotape. It must be presumed that the jury 

followed this instruction. State v. Ahmed, 103 Ohio St.3d 27, 42, 813 N.E.2d 637 

(2004). 

{¶35} Upon review of the record we find any error would be harmless beyond a 

reasonable doubt. There is substantial evidence upon which the jury based its verdict, 

including her admissions. Appellant’s reference to her own criminal history did not 

prejudice her beyond a reasonable doubt. 
Morrow County, Case No. 11-CA-5 11 

{¶36} The judgment of the Morrow County Court of Common Pleas is affirmed 

in part, reversed in part, and the case is remanded for further proceedings in 

accordance with this opinion. 

By: Delaney, P.J. 

Farmer, J. and 

Edwards, J. concur. 

HON. PATRICIA A. DELANEY 

HON. SHEILA G. FARMER 

HON. JULIE A. EDWARDS 

 
[Cite as State v. Congrove, 2012-Ohio-1159.]

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

 : 

SHERRI CONGROVE : 

 : Case No. 11-CA-5 

 Defendant-Appellant : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Morrow County Court of Common Pleas is affirmed in part, reversed in part, and 

remanded to the trial court for further proceedings in accord with this opinion. Costs to 

be split equally between the parties. 

 

HON. PATRICIA A. DELANEY 

HON. SHEILA G. FARMER 

HON. JULIE A. EDWARDS