[Cite as State v. Calhoun, 2014-Ohio-3662.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

FAYETTE COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-05-014 

 

 : O P I N I O N

 - vs - 8/25/2014 

 : 

JASON R. CALHOUN, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS 

Case No. 13 CRI 00039 

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington 

C.H., Ohio 43160, for plaintiff-appellee 

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for 

defendant-appellant 

 HENDRICKSON, J. 

{¶ 1} Defendant-appellant, Jason R. Calhoun, appeals the judgment of the Fayette 

County Common Pleas Court convicting him of multiple offenses, including burglary, theft, 

breaking and entering and two counts of misuse of credit cards, for which he was sentenced 

to a total of ten years in prison. For the reasons that follow, we affirm the judgment of the 

trial court. 
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{¶ 2} On January 3, 2013, appellant broke into the home of Jane Dill, who was 92 

years old, sometime after she had fallen asleep around 10:00 p.m. that night. He stole credit 

cards from her purse and several large-scale electronics. Dill's kitchen window was later 

discovered broken. One of Dill's neighbors, Paul E. Newberry, who owns a nearby vacant 

home that been put up for sale, discovered that a dining room window in the home had been 

broken, one of the screens on the porch had been cut, and a few screens on the back of the 

house were out of place, but nothing was taken from the home. Carl Smith, whose mother, 

Irene Smith, is in a nursing home but still owns property in the same neighborhood, noticed a 

screen out of place on his mother's home and that a window had been "knocked out in the 

house." Carl also found splatters of blood all around his mother's house and saw that 

someone had gone through a jewelry box that was in the house, opening its drawers and 

upending its contents, and had left other personal effects out of place. 

{¶ 3} At approximately 12:30 a.m. on January 4, 2013, a Murphy USA gas station 

clerk, Kaley Dunham, sold two cartons of cigarettes to a man who was later determined to be 

appellant. Appellant paid for the cigarettes with a credit card that belonged to Jane Dill. 

Appellant initially signed his name "Jason Calhoun" on the credit card transaction slip. 

However, he requested the credit card slip back, scratched out his signature, "Jason 

Calhoun," and then scribbled something illegible under his scratched-out signature. Dunham 

saw appellant leave with two women in a taxi. 

{¶ 4} Shortly thereafter, appellant and the two women entered a WalMart that was 

near the Murphy USA gas station. A WalMart night-time cashier, Alexandria Harter, saw 

appellant and the two women use a credit card to make a "test purchase" of three Pepsis to 

"clear the card to see if it would work." Harter observed appellant and the two women as 

they looked through the store. At one point, they came up to Harter and asked for help in the 

jewelry department, and Harter sent one of her fellow employees to help them. Appellant 
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and the two women went to the electronics department, and then walked up to the checkout 

register, with a Galaxy tablet, several different pieces of jewelry and three cell phones. 

Harter rang up the items that appellant and the two women sought to purchase, which totaled 

approximately $1,600. Appellant handed Harter a credit card to pay the $1,600 bill. Harter 

took the credit cart and charged the $1,600 bill to it, using the store's computerized checkout 

register, and $1,600 was debited to the credit card. At the same time, however, the 

computerized checkout register prompted Harter to check the customer's I.D. When Harter 

asked appellant to see the credit card and his I.D., she noticed that the name on the credit 

card was "Jane Dill" while the name on appellant's I.D. was "Jason Calhoun." Harter then 

summoned the store's manager, Alana Bryant. 

{¶ 5} When Bryant came to the checkout register, appellant explained to her that the 

credit card belonged to his mother and that he had permission to use it to buy Christmas 

presents for himself and his friends who were with him. Bryant told appellant that he could 

not use the credit card because the name on the I.D. he provided did not match the name on 

the credit card. Bryant made appellant take the items to the store's service desk. She 

escorted him and the two women with him to the store's customer service area to ring back 

the items. When they got there, Bryant refunded all the money to the credit card that had 

been debited to it as a result of appellant's use of it. After refunding the money to the credit 

card, Bryant stepped into the store's cash office and called the police. Appellant and the two 

women left the store, with appellant taking the credit card with him. Harter heard appellant 

and the two women say as they left, "hurry, run, hurry[.]" After the three had "dart[ed] off," 

one of them came back inside and told Harter that they were trying to get a taxi. Eventually, 

a taxi came and the three got into it and left the store. 

{¶ 6} Officer Jeff Heinz was dispatched to the WalMart in response to Bryant's call. 

When he arrived there five minutes later, he noticed a taxi that was just pulling out. Officer 
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Heinz flagged down the taxi driver to get him to stop, which he did. The taxi driver told 

Officer Heinz that he had just picked up the three individuals seated in his taxi from WalMart. 

Officer Heinz spoke to all three of the passengers, including appellant. Appellant first told 

Officer Heinz that his name was "Kyler Willis," but appellant was unable to provide his social 

security number. One of the two females with appellant in the taxi eventually told Officer 

Heinz who appellant actually was, and appellant himself eventually admitted who he was. 

Officer Heinz found two Fifth Third credit cards, one blue and the other gold, lying on the 

passenger-side floorboard of the taxi. Both credit cards bore Jane Dill's name. Officer 

Heinz found two cartons of cigarettes in the backseat in the passenger area and another 

carton of cigarettes and a pack of Newports that were in the front of the vehicle. Officer 

Heinz noticed that appellant had an injury to his hand that was bleeding through its 

bandages. 

{¶ 7} Appellant was indicted in Case No. 13CRI00039 on ten counts involving the 

events that occurred at the Murphy USA gas station and WalMart on or about January 4, 

2013. The charges included four counts of forgery in violation of R.C. 2913.31(A)(1) and 

2913.31(A)(3), with all four counts being fifth-degree felonies (Counts One, Two, Three and 

Four); two counts of receiving stolen property in violation of R.C. 2913.02(A)(3), both fifthdegree felonies (Counts Six and Seven); two counts of misuse of credit card in violation of 

R.C. 2913.21(B)(2), with a specification that the victim was an elderly person in violation of 

R.C. 2913.21(D)(4), both fourth-degree felonies (Counts Eight and Nine); and one count of 

theft in violation of R.C. 2913.02(A)(3), a first-degree misdemeanor (Count Ten). 

{¶ 8} Appellant was indicted in Case No. 13CRI00040 on five counts involving the 

break-ins that occurred at the houses of Dill, Newberry and Irene Smith on or about January 

3, 2013. The charges included burglary in violation of R.C. 2911.12(A)(1), a second-degree 

felony (Count One); theft in violation of R.C. 2913.02(A)(1), a fifth-degree felony (Count Two); 
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two counts of breaking and entering in violation of R.C. 2911.13(A), both fifth-degree felonies 

(Counts Three and Four); and possession of criminal tools in violation of R.C. 2923.24(A), a 

fifth-degree felony (Count Five), with a specification that the device or instrument was 

intended for use in the commission of a felony. 

{¶ 9} Appellant was tried by jury simultaneously on Case Nos. 13CRI00039 and 

13CRI00040. The state presented the testimony of several law enforcement officers involved 

in the case and the employees of Murphy USA gas station and WalMart who testified to the 

facts related above. The state presented photos of shoe prints at the crime scene and 

appellant's shoes, which were collected at the time of his arrest. The state also presented 

testimony from a forensic expert who testified that appellant's shoes had tread impressions 

consistent with those found at one of the homes that had been burglarized and a DNA expert 

who testified that appellant's blood DNA was consistent with blood found on a rock and a 

jewelry box at one of those same homes. 

{¶ 10} At the close of evidence, the state dismissed Counts Five (attempted theft) and 

Ten (theft) in Case No. 13CRI00039, and in that same case, the trial court joined Counts Six 

and Seven (each count for receiving stolen property) into a single count, Count Six. The jury 

convicted appellant in Case No. 13CRI00039 of four counts of forgery (Counts One, Two, 

Three and Four); receiving stolen property (Count Six); both counts of misuse of credit cards 

(Counts Eight and Nine) and the elderly-victim specifications attached to those two counts. 

The jury acquitted appellant in Case No. 13CRI00040 of one count of breaking and entering 

(Count Three) and possession of criminal tools (Count Five), but convicted him of burglary 

(Count One), theft (Count Two) and the remaining count of breaking and entering (Count 

Four). 

{¶ 11} At appellant's sentencing hearing, the trial court determined, as to Case No. 

13CRI00039, that appellant's convictions on Counts One (forgery), Two (forgery) and Eight 
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(misuse of credit cards) were allied offenses of similar import and that appellant's convictions 

on Counts Three (forgery), Four (forgery) and Nine (misuse of credit cards) were allied 

offenses of similar import. The state elected to proceed on Count Eight (misuse of credit 

cards at WalMart) and Count Nine (misuse of credit cards at Murphy USA gas station). The 

trial court sentenced appellant to 12 months in prison on each count of misuse of credit cards 

and ordered him to serve those two 12-month prison terms concurrently. The trial court 

merged appellant's conviction on Count Six (receiving stolen property) with his conviction on 

Count Two (theft) in Case No. 13CRI00040, after finding that those offenses were allied 

offenses of similar import, and the state elected to proceed on appellant's theft conviction in 

Count Two. 

{¶ 12} In Case No. 13CRI00040, the trial court sentenced appellant to eight years in 

prison for his conviction on Count One (burglary), 12 months in prison for his conviction on 

Count Two (theft) and 12 months in prison for his conviction on Count Four (breaking and 

entering), and ordered him to serve each of those sentences consecutively, giving him a tenyear prison sentence for his convictions in that case. The trial court then ordered appellant to 

serve his ten-year prison sentence in Case No. 13CRI00040 concurrently with his 12-month 

prison sentence in Case No. 13CRI00039, giving him an aggregate ten-year prison sentence 

for his convictions in both cases. 

{¶ 13} Appellant now appeals, assigning the following as error: 

{¶ 14} Assignment of Error No. 1: 

{¶ 15} THE COURT ABUSED ITS DISCRETION BY NOT PERMITTING A 

CONTINUANCE FOR THE DEFENDANT TO BRING FORTH WITNESSES TO TESTIFY IN 

HIS BEHALF. 

{¶ 16} Assignment of Error No. 2: 

{¶ 17} THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO CONVICT THE 
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DEFENDANT COUNT EIGHT, MISUSE OF A CREDIT CARD. [sic] 

{¶ 18} Assignment of Error No. 3: 

{¶ 19} THE COURT ERRED BY OVERRULING THE DEFENDANT'S MOTION FOR 

RULE 29 DIRECTED VERDICT OF ACQUITTAL AS TO COUNTS THREE, FOUR AND 

NINE. 

{¶ 20} Assignment of Error No. 4: 

{¶ 21} THE COURT COMMITTED REVERSIBLE ERROR BY SENTENCING THE 

DEFENDANT TO MAXIMUM, CONSECUTIVE SENTENCES IN CASE NO. 13CR100040. 

{¶ 22} In his first assignment of error, appellant argues the trial court erred by denying 

his request on the morning of trial for a continuance to subpoena witnesses on his behalf, 

because the trial court did not inquire as to the length of delay being sought by him to procure 

his witnesses, he previously had not sought a continuance, the state would not have been 

unduly inconvenienced by the continuance even though the state's witnesses may have been 

inconvenienced, and he had limited access to his attorney due to his incarceration. This 

argument lacks merit. 

{¶ 23} A trial court has broad discretion in deciding whether or not to grant a 

continuance, and its decision will not be overturned unless it amounts to an abuse of 

discretion, i.e., it is unconscionable, arbitrary or unreasonable. State v. Grant, 67 Ohio St.3d 

465, 479 (1993). The trial court may consider all relevant factors, including the reasons for, 

and the length, of the continuance requested; whether any prior continuance was granted in 

the case; inconvenience to the parties; and whether the defendant contributed to the reasons 

for the requested continuance. Id. 

{¶ 24} Here, the trial court did not abuse its discretion by denying appellant's motion 

for a continuance since it was made on the morning of trial and the two cases on which 

appellant was being tried had been pending for approximately two months, one of appellant's 
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victims was 92 years old, appellant's attorney previously represented to the trial court that 

there was no further reciprocal discovery needed, and appellant failed to proffer the names of 

the witnesses whose testimony he sought to present and explain how they would assist his 

defense. 

{¶ 25} Therefore, appellant's first assignment of error is overruled. 

{¶ 26} In his second assignment of error, appellant argues the state failed to present 

sufficient evidence to convict him of Count Eight in Case No. 13CRI00039, which charged 

him with misuse of credit cards at WalMart. The charge arose from appellant's use of a 

stolen credit card at WalMart to purchase electronics and jewelry worth $1,600. Appellant 

contends that since the computerized checkout register at WalMart would not complete the 

transaction in the absence of a valid I.D. check and the transaction was voided and the 

charges were refunded to the cardholder, no property was "obtained" by him before leaving 

the store, and therefore, the state failed to prove the elements of the offense of misuse of 

credit card. 

{¶ 27} Initially, appellant failed to file a timely Crim.R. 29 motion for acquittal on Count 

Eight. The Ohio Supreme Court has held that if a criminal defendant fails to file a timely 

Crim.R. 29 motion for acquittal, the defendant waives, for purposes of appeal, all but plain 

error regarding the sufficiency of the evidence. State v. Roe, 41 Ohio St.3d 18, 25 (1989), 

and Dayton v. Rogers, 60 Ohio St.2d 162, 163 (1979). However, the court has stated in two 

more recent cases that a failure to file a timely Crim.R. 29(A) motion during a jury trial does 

not waive an argument regarding the sufficiency of the evidence since the defendant's "not 

guilty" plea preserves his right to challenge the sufficiency of the evidence on appeal. State 

v. Jones, 91 Ohio St.3d 335, 346 (2001); State v. Carter, 64 Ohio St.3d 218, 223 (1992). 

{¶ 28} "An alleged error is plain error only if it is 'obvious,' and 'but for the error, the 

outcome of the trial clearly would have been otherwise.'" State v. Blake, 12th Dist. Butler No. 
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CA2011-07-130, 2012-Ohio-3124, ¶ 25, quoting State v. Jackson, 12th Dist. Fayette No. 

CA2011-01-001, 2011-Ohio-5593, ¶ 13, citing State v. Perez, 124 Ohio St.3d 122, 2009-

Ohio-6179, ¶ 181. It has been held that "because 'a conviction based on legally insufficient 

evidence constitutes a denial of due process,' State v. Thompkins (1997), 78 Ohio St.3d 380, 

386-387, a conviction based upon insufficient evidence would almost always amount to plain 

error." State v. Coe, 153 Ohio App. 3d 44, 49, 2003-Ohio-2732 (4th Dist.2003). 

{¶ 29} R.C. 2913.21 defines the offense of misuse of credit cards, in pertinent part, as 

follows: 

(B) No person, with purpose to defraud, shall do any of the 

following: 

* * * 

(2) Obtain property or services by the use of a credit card, in one 

or more transactions, knowing or having reasonable cause to 

believe that the card has expired or been revoked, or was 

obtained, is retained, or is being used in violation of law[.] 

{¶ 30} R.C. Chapter 2913 does not define the word "obtain." Therefore, the word 

must "be read in context and construed according to the rules of grammar and common 

usage." R.C. 1.42. "Obtain" is commonly defined as meaning "to gain or attain possession 

or disposal of [usually] by some planned action or method[.]" Webster's Third New 

International Dictionary (1993) 1559. 

{¶ 31} Here, the credit card appellant used at WalMart went through the store's 

computerized checkout register. The charges for the merchandise that appellant brought to 

the register to purchase were debited to the credit card. Once the store's employees 

discovered that the name on appellant's I.D. did not match the name on the credit card, they 

voided appellant's $1,600 purchase and refunded to the credit card the $1,600 that had been 

debited to it. Under these facts, we conclude that at the very moment the funds were debited 

to the stolen credit card, appellant, "with purpose to defraud" "obtained[ed] property" "by the 
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use of a credit card," "knowing or having reasonable cause to believe that the card * * * was 

obtained, is retained, or is being used in violation of law[.]" Our conclusion is not changed by 

the fact that the store's computerized checkout register prompted the store's employees to 

check the customer's I.D., which in turn led them to prohibit appellant from leaving the store 

with the merchandise, because by the time the store's employees checked appellant's I.D., 

he already had completed the offense of misuse of credit cards as defined in R.C. 

2913.21(B)(2). 

{¶ 32} Therefore, appellant's second assignment of error is overruled. 

{¶ 33} In his third assignment of error, appellant argues the state failed to present 

sufficient evidence to prove that he was the perpetrator of the offenses committed at Murphy 

USA gas station that formed the basis of Count Three (forgery without consent), Count Four 

(forgery by uttering) and Count Nine (misuse of credit card) in Case No. 13CRI00039. 

Appellant points out that the state failed to have the cashier at Murphy USA gas station 

identify him as the person who entered the store, purchased the cigarettes, used the credit 

card or signed the transaction slip and that the cashier had lots of customers and thus 

probably could not remember this particular transaction. We find this argument 

unpersuasive. 

{¶ 34} The identification of a perpetrator can be established by circumstantial 

evidence. State v. Saunders, 12th Dist. Fayette No. CA2012-Ohio-006, 2013-Ohio-2052, 

¶44. Here, even though the state did not have the cashier at Murphy USA gas station 

identify appellant at trial as the person who used Jane Dill's credit card to purchase the two 

cartons of cigarettes, there was ample circumstantial evidence that appellant was in fact the 

person who did so. State's Exhibit 12 shows a receipt from Murphy USA gas station that has 

appellant's name "Jason Calhoun" scratched out, and underneath it, has an illegible scribble. 

The cashier noted that the individual who signed the name "Jason Calhoun" was seen 
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leaving the store in a taxi cab. Appellant was in the vicinity of the Murphy USA gas station 

shortly after the cigarette purchase, the cashier and the manager at WalMart saw appellant 

enter a taxi cab, and shortly thereafter, appellant was apprehended in a taxi cab nearby. 

There were two cartons of cigarettes found in the taxi cab that matched the ones sold that 

night at Murphy USA gas station to the man who signed his name "Jason Calhoun," then 

scratched out that signature and replaced it with a scribble. 

{¶ 35} In light of the foregoing, appellant's third assignment of error is overruled. 

{¶ 36} In his fourth assignment of error, appellant argues the trial court failed to make 

the requisite findings under R.C. 2929.14(C)(4) before imposing consecutive sentences on 

him in Case No. 13CRI00040 for his convictions for burglary, theft, and breaking and 

entering, for which he received prison sentences of eight years, 12 months, and 12 months, 

respectively, to be served consecutively. He asserts that the trial court failed to find that (1) 

"consecutive sentences are not disproportionate to the seriousness of the offender's conduct 

and to the danger the offender poses to the public[,]" (2) he "was on some sort of community 

control sanction at the time these offenses were committed[,]" (3) he "committed one or more 

of the multiple offenses while he awaiting [sic] trial or sentencing" and (4) "at least two of the 

multiple offenses were committed as part of one or more courses of conduct." However, 

appellant misreads R.C. 2929.14(C)(4). 

{¶ 37} "The presumption in Ohio is that sentencing is to run concurrent, unless the trial 

court makes the required findings for imposing consecutive sentences set forth in R.C. 

2929.14(C)(4)." State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 17. 

{¶ 38} R.C. 2929.14(C)(4) provides: 

(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 
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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. 

{¶ 39} In order to impose a consecutive sentence on an offender, the sentencing court 

initially must find that the consecutive sentence is necessary to protect the public from future 

crime or to punish the offender and that the consecutive sentence is not disproportionate to 

the seriousness of the offender's conduct and to the danger the offender poses to the public. 

Nia, 2014-Ohio-2527 at ¶18. If the sentencing court makes these findings, it then must find 

that one of the three circumstances set forth in R.C. 2929.14(C)(4)(a)-(c) exists. Id. 

{¶ 40} Here, the trial court found that "consecutive sentences are necessary to protect 

the public and to punish the defendant, the emphasis being on protection of the public" and 

that "a single term does not adequately reflect the seriousness of [the offender's, i.e., 

appellant's] conduct." These findings demonstrate that the trial court satisfied R.C. 

2929.14(C)(4)'s requirements that before imposing consecutive sentences on an offender, 

the court must find 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 
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public[.]" 

{¶ 41} The trial court also stated that the harm caused by appellant was to an elderly 

person and that appellant's "criminal history shows that consecutive terms are necessary to 

protect the public." This finding fulfills R.C. 2929.14(C)(4)'s requirement that the trial court 

find that one of the three criteria listed in R.C. 2929.14(C)(4)(a)-(c) exists. Specifically, the 

trial court's finding that appellant caused harm to an elderly person and that his criminal 

history demonstrates that consecutive sentences are necessary to protect the public shows 

that the trial court found that "the offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime by the offender." 

 R.C. 2929.14(C)(4)(c). 

{¶ 42} Accordingly, appellant's fourth assignment of error is overruled. 

{¶ 43} Judgment affirmed. 

RINGLAND, P.J., and S. POWELL, J., concur.