[Cite as State v. Hargrove, 2014-Ohio-1919.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

v. : No. 13AP-615 

 (C.P.C. No. 12CR-2820) 

John W. Hargrove, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on May 6, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, 

for appellee. 

Todd W. Barstow, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

T. BRYANT, J. 

{¶ 1} Defendant-appellant, John W. Hargrove, appeals from a judgment of 

conviction and sentence entered by the Franklin County Court of Common Pleas pursuant 

to jury verdicts finding appellant guilty of one count of theft, a violation of R.C. 

2913.02(A)(3), a felony of the fifth degree, and one count of solicitation fraud, a violation 

of R.C. 1716.14(A)(1), a felony of the fourth degree. 

{¶ 2} Both counts against appellant arise from his fund-raising activities on 

behalf of a purported veteran's organization. Testimony at trial established that appellant 

registered the trade name Ohio Veteran's Source with the Ohio Secretary of State, but 

never registered the name as a charitable organization. Appellant established three 

checking accounts with Huntington Bank in the name of Ohio Veteran's Source. He then 

engaged in telephone solicitations, mostly from individuals, and mostly procuring small 

donations. Appellant told potential contributors that his plan for the organization was to 

produce an informational newsletter to assist veterans in need of assistance to find 
No. 13AP-615 2 

housing, employment, or medical treatment. He then used the contributions for his own 

purposes and never produced the planned newsletter, although appellant stated at trial 

that he was only prevented from producing the newsletter by his intervening arrest. The 

state presented evidence of multiple solicitations, including the in-court testimony of 

contributing victims. 

{¶ 3} The trial court refused to merge the two convictions for purposes of 

sentencing, and sentenced appellant to a 12-month term on the theft offense, and 18 

months on the solicitation fraud offense. Appellant stipulated that he had a prior 

conviction in 2007 for a similar solicitation fraud offense. 

{¶ 4} Appellant brings the following two assignments of error on appeal: 

I. WHETHER OR NOT THE TRIAL COURT ERRED TO THE 

PREJUDICE OF APPELLANT BY IMPOSING SENTENCES 

FOR PROHIBITED ACTS AND PRACTICES AND THEFT AS 

THOSE OFFENSES WERE ALLIED OFFENSES OF SIMILAR 

IMPORT COMMITTED WITH A SINGLE ANIMUS. THE 

TRIAL COURT FURTHER ERRED TO THE PREJUDICE OF 

APPELLANT BY NOT DIRECTING THE STATE TO ELECT 

ON WHICH OFFENSE CONVICTION WOULD BE 

ENTERED AND SENTENCE PRONOUNCED. 

II. WHETHER OR NOT THE TRIAL COURT ERRED TO 

THE PREJUDICE OF APPELLANT BY IMPROPERLY 

SENTENCING HIM TO CONSECUTIVE TERMS OF 

INCARCERATION IN CONTRAVENTION OF OHIO'S 

SENTENCING STATUTES. 

{¶ 5} Appellant's first assignment of error addresses the trial court's refusal to 

merge the two charged offenses as allied offenses of similar import committed with a 

single animus. R.C. 2941.25 governs the treatment of such allied offenses: 

(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. 
No. 13AP-615 3 

In considering pursuant to the statute whether offenses are allied offenses of similar 

import and subject to merger, "the question is whether it is possible to commit one 

offense and commit the other with the same conduct, not whether it is possible to commit 

one without committing the other. * * * If the offenses correspond to such a degree that 

conduct of the defendant constituting the commission of one offense constitutes the 

commission of the other, then the offenses are of similar import." State v. Johnson, 128 

Ohio St.3d 153, 2010-Ohio-6314, ¶ 48. If the 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.' " Id. at ¶ 49, 

quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the offenses are 

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

offenses will not merge under R.C. 2941.25(B). Id. at ¶ 51. Conversely, if the offenses are 

committed by the same conduct with a single animus, the offenses will merge. Id. at ¶ 50. 

{¶ 6} We note that the question of whether a violation of R.C. 1716.14 (prohibited 

acts and practices in the course of charitable solicitations) and a related violation of R.C. 

2913.02 (theft) constitute allied offenses of similar import appears to be a matter of first 

impression before Ohio appellate courts, at least as a disputed issue assessed pursuant to 

Johnson. This is because, in the only recent decision on point, the pre-Johnson case of 

State v. DeLong, 2d. Dist. No. 20656, 2005-Ohio-1905, the court affirmed, without 

discussion, the trial court’s failure to merge these two crimes. There is no indication that 

the question was contested on appeal, and the case thus provides no guidance beyond its 

bare holding. 

{¶ 7} For the reasons given below, we conclude that these two offenses as 

committed in the present case are not allied offenses because the offenses do not 

"correspond to such a degree that conduct of the defendant constituting the commission 

of one offense constitutes the commission of the other." Johnson at ¶ 48. We conclude, as 

did the trial court, that the solicitation fraud in this case, which consisted of deceptive 

promises and assurances made while engaging in telephone solicitation, constitutes a 

sufficiently distinct act from the purposeful obtention of property belonging to others, i.e., 

the actual acceptance and subsequent misuse of contributed money even if the crimes are 

otherwise enhanced by or founded upon the same misappropriated sums. 
No. 13AP-615 4 

{¶ 8} In order to prove the charged theft offense, the state was held to prove that 

appellant, with purpose to deprive the owner of property with a value between $1,000 and 

$7,500, knowingly obtained or exerted control over the rightful owner’s property by 

deception and during the course of criminal conduct. R.C. 2913.02; (R. 2.) In order to 

prove the charged offense of solicitation fraud under R.C. 1716.14, the state was held to 

show that appellant, while planning, conducting, or executing any solicitation of 

contributions for a charitable organization, committed a deceptive act or practice, that the 

value of the resulting contributions was more than $1,000 and less than $7,500, and that 

appellant had previously been convicted of a violation of R.C. 1716.14. R.C. 1716.14(A)(1) 

and 1716.99(B)(2)(b); (R. 2.) 

{¶ 9} Examining the elements of these crimes as they are defined in the statute, 

and appellant’s actual conduct as required by Johnson, it is apparent that the offense of 

solicitation fraud, unlike the offense of theft, does not require the intent to purposefully 

deprive the owner of property. It only requires commission of a deceptive act while 

soliciting contributions. It is possible to commit the theft offense without committing 

prohibited acts and practices as defined by R.C. 1716.14, and conversely, it is possible to 

commit theft without committing solicitation fraud during the course of charitable 

solicitations. 

{¶ 10} Appellant particularly stresses in this appeal that the state presented no 

evidence to separately substantiate the predicate threshold monetary amounts for each 

crime — that is, he asserts that the state is using the same dollars twice. While this may be 

true, it does not mandate a finding that the offenses must merge. 

{¶ 11} It is accurate that the degree of the theft offense and the solicitation fraud 

offense are determined, respectively, by the value of the property stolen or the 

contributions received. Theft of an amount under $1,000 would constitute only the firstdegree misdemeanor of petty theft rather than the fifth-degree felony charged here. R.C. 

2913.02(B)(2). Receipt of contributions totaling less than $1,000 would support a fifthdegree rather than fourth-degree felony for an offender with a prior solicitation fraud 

conviction. R.C. 1716.99(B)(2). However, the overlapping of one element or enhancing 

factor between two crimes, both in their statutory definition and the defendant’s conduct, 
No. 13AP-615 5 

does not mandate merger of the offenses where the other elements and conduct are 

distinct. State v. West, 10th Dist. No. 11AP-548, 2013-Ohio-942, ¶ 22. 

{¶ 12} Because we find that the offenses as committed in the present case do not 

constitute allied offenses of similar import, the trial court did not err in refusing to merge 

the two convictions for sentencing. Appellant's first assignment of error is accordingly 

overruled. 

{¶ 13} Appellant's second assignment of error asserts that the trial court erred 

when it did not make the required findings under R.C. 2929.14(C) before sentencing him 

to consecutive sentences in derogation of the presumption in favor of concurrent 

sentences. The state concedes that, pursuant to our recent decisions in State v. Wilson, 

10th Dist. No. 12AP-551, 2013-Ohio-1520, and State v. Bender, 10th Dist. No. 12AP-934, 

2013-Ohio-2777, the trial court's failure to make the statutorily-required findings 

constitutes plain error. We note that the state has fully argued and preserved for further 

appeal the question of whether Bender and Wilson correctly state the law of Ohio on this 

question. We further note that appellant in the present case did not object to the trial 

court's failure to make the statutorily-required findings. In accordance with our recent 

decisions, however, the record requires a reversal of the trial court's imposition of 

consecutive sentences and a remand to the trial court for re-sentencing. Wilson at ¶ 22. 

Appellant's second assignment of error is sustained. 

{¶ 14} In accordance with the foregoing, appellant's first assignment of error is 

overruled and the second assignment of error is sustained. The matter is remanded to the 

Franklin County Court of Common Pleas for re-sentencing in compliance with the 

mandates of R.C. 2929.14(C). 

Judgment affirmed in part and reversed in part; 

cause remanded 

CONNOR, J., concurs. 

KLATT, J., concurs in part and dissents in part 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under authority of the Ohio 

Constitution, Article IV, Section 6(C). 
No. 13AP-615 6 

KLATT, J., concurring in part and dissenting in part. 

{¶ 15} I agree with the majority opinion that the trial court erred when it imposed 

consecutive sentences without making the findings required by R.C. 2929.14(C). 

However, unlike the majority, I believe the trial court erred when it refused to merge the 

solicitation fraud and theft convictions for purposes of sentencing. Therefore, I 

respectfully dissent from that portion of the majority opinion. 

{¶ 16} Pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, in 

considering whether offenses are allied offenses of similar import and subject to merger, 

"the question is whether it is possible to commit one offense and commit the other with 

the same conduct, not whether it is possible to commit one without committing the other. 

* * * 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." Id. at ¶ 48. If the 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.' " Id. at ¶ 49, 

quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the offenses are 

committed by the same conduct with a single animus, the offenses will merge. Id. at ¶ 50. 

{¶ 17} The majority correctly notes that the elements of the theft offense, R.C. 

2913.02, and the elements of the solicitation fraud, R.C. 1716.14, are different. The 

majority states that it is possible to commit the theft offense without committing the 

solicitation fraud offense, and conversely, it is possible to commit theft without 

committing solicitation fraud during the course of charitable solicitations. Because these 

offenses have different elements, the majority concludes that these offenses do not merge. 

{¶ 18} The analysis employed by the majority conflicts with Johnson, wherein the 

court expressly stated that "the question is whether it is possible to commit one offense 

and commit the other with the same conduct, not whether it is possible to commit one 

without committing the other. * * * 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." Id. at ¶ 48. 

{¶ 19} Here, solicitation fraud and theft can be committed with the same conduct. 

I believe appellant committed these offenses by the same conduct with a single animus. 
No. 13AP-615 7 

Both convictions arose from appellant's telephone solicitations on behalf of a purported 

veterans organization. Both convictions were premised upon the same misappropriated 

funds. I see nothing in the record that would indicate that these offenses were not 

committed with a single animus. For this reason, I believe these offenses should merge 

for purposes of sentencing. Because the majority reaches a contrary conclusion, I 

respectfully dissent. 

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