[Cite as State v. Beverly , 2013-Ohio-1365.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2011 CA 64

v. : T.C. NO. 11CR258A JORDAN BEVERLY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 5th day of April, 2013.

. . . . . . . . . . LISA M. FANNIN, Atty. Reg. No. 0082337, Assist ant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro, Ohio 45066 Attorney for Defendant-Appellant

. . . . . . . . . . FAIN, P.J. {¶ 1} Defendant-appellant Jordan Beverly appeals from his conviction and sentence for one count of Engaging in a Pattern of CorruptActivity, in violation of R.C. 2923.32(A)(1), a2 felony of the first degree; eight counts of Bu rglary, in violation of R.C. 2911.12(A)(3), all felonies of the third degree; five counts of R eceiving Stolen Property, in violation of R.C. 2913.51, all felonies of the fourth de gree; one count of Receiving Stol en Property, in violation of R.C. 2913.51, a felony of the fifth degree; one count of Attempted Burglary, in violation of R.C. 2923.02 and 2911.12(A)(1), a felony of the third degr ee; one count of Attempted Burglary, in violation of R.C. 2923.02 and 2911.12(A)(3), a felony of the fourth degree; two counts of Fleeing and Eluding, in violation of R.C. 2921.331(B), a fe lony of the third degree; and one count of Having Weapons While Under Disability, in vi olation of R.C. 2923.13, a felony of the third degree. {¶ 2} Beverly contends that th e trial court erred in overru ling his motion to suppress incriminating statements he made to police, because those statements were not knowing and voluntary. He contends that the evidence in th e record is insufficient to support his conviction for Engaging in a Pattern of Corrupt Activity, because there was insufficient proof of the existence of an enterprise. Beverly also contends that his sentence of 661⁄2 years constitutes an abuse of discretion. Finally, Be verly contends that his convi ctions for Receiving Stolen Property and for Having Weapons While Unde r a Disability should have been merged. {¶ 3} We conclude that the tria l court did not err when it overruled Beverly’s motion to suppress, because the record establishes that hi s incriminating statements were made knowingly, intelligently, and voluntarily. We agree with Beverly that there is insufficient evidence in this record to prove the enterprise element of Engaging in a Pattern of Corrupt Activity. We agree with Beverly that his sentence of 661⁄2 years cons titutes an abuse of discretion. We also agree with Beverly that the trial c ourt erred when it failed to merg e his convictions for Receiving3 Stolen Property and for Having a Weapon While Under a Disability. Accordingly, Beverly’s conviction and sentence for Engaging in a Pattern of Corrupt Activity is Reversed and Vacated; the sentence imposed by the trial court is Reversed; and this cause is Remanded for merger of the Receiving Stolen Property and Having a Weapon While Under a Disability convictions and for re-sentencing.

I. The Course of Proceedings {¶ 4} Beverly was originally indicted in February 2011. In April, Beverly was re-indicted in a 25-count indictme nt. Both indictments concerned a series of thefts and burglaries that occurred in and around Clark County, Ohio, in late 2010 and early 2011. It was alleged that Beverly committed most, if not all, of the offe nses with his co-defendant, Brandon Imber. {¶ 5} Beverly moved to suppress statements he made to police officers after he was arrested and taken into custody. After a hear ing on the motion, the trial court overruled it. {¶ 6} Beverly’s jury trial lasted eight days . Beverly was convicted on one count of Engaging in a Pattern of Corrupt Activity; eigh t counts of Burglary; six counts of Receiving Stolen Property; two counts of Attempted Burglary; two counts of Fleeing and Eluding; and one count of Having Weapons While Under a Disability. The trial c ourt merged the two counts of Fleeing and Eluding, and sentenced Beverly to an aggregate prison term of 661⁄2 years. {¶ 7} From his conviction and se ntence, Beverly appeals.

II. Beverly’s Waiver of his Miranda Rights, and His Subsequent Statements, W ere Knowing and Voluntary[Cite as State v. Beverly , 2013-Ohio-1365.] {¶ 8} Beverly’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION TO SUPPRESS. {¶ 9} Beverly contends that the trial cour t erred when it overruled his motion to suppress statements he made to police during a custodial interrogation af ter he was arrested. Specifically, Beverly argues that the interviewing officer used physical threats and offers of leniency to coerce his statements. Accordingly, Beverly asserts that the waiver of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not knowing, intelligent, and voluntary. {¶ 10} In deciding a motion to suppress, “the tria l court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.” State v. Hopfer , 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham , 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must accept the trial court’s findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, citing State v. Retherford , 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate court must then de termine, as a matter of law and without deference to the trial court’s legal conclusion, wh ether the applicable lega l standard is satisfied. Id

. {¶ 11} The Fifth Amendment provides that “[n] o person *** shall be compelled in any criminal case to be a witness against himself.” “The Fifth Amendment privilege against compulsory self-incrimination ‘protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.’” Hiibel v. Sixth Judicial Di st. Ct. of Nev., Humbolt Cty. , 542 U.S. 177, 124 S.Ct. 2451,5 159 L.Ed.2d 292 (2004) (quoting Kastigar v. United States , 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)); Ohio v. Reiner , 532 U.S. 17, 20, 121 S.Ct. 1252, 149 L.E.2d 158 (2001). The Sixth Amendment to the United States Constitution provides that an individual has a right to the assistance of counsel for his defense in all criminal prosecutions . This right attaches only at the initiation of adversar ial criminal proceedings. United States v. Davis , 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); State v. Williams , 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446. Nevertheless, the United States S upreme Court has held th at “a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins.”
Davis , 512 U.S. at 457, citing Miranda v. Arizona , supra . {¶ 12} When a suspect waives his right to counsel after Miranda warnings have been given, law enforcement officers are free to ques tion him. However, once a suspect requests counsel, the police must cease th eir interrogation until an attorney has been provided or the suspect himself rein itiates conversation. Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Davis , 512 U.S. at 458. {¶ 13} Whether a suspect has invoked his right to counsel is an objective inquiry. Id

. A request for an attorney must be clear and una mbiguous, to the extent that a reasonable police officer in the circumstances woul d understand the statement to be an invocation of the right to counsel. Davis , 512 U.S. at 459; see State v. Murphy , 91 Ohio St.3d 516, 520, 2000-Ohio-112, 747 N.E.2d 765. {¶ 14} Beverly was first interviewed by Detec tive James Hollopeter at about ten p.m. Throughout the brief interview, Beverly appeared lethargic and sluggish. At the beginning of6 the interview, Detective Hollopeter informed Beverly of his Miranda rights. During Detective Hollopeter’s recitation of his constitutional rights, Beverly unequivocally stated that he wanted to be represented by an attorney. At that poi nt, Detective Hollopeter ended the interview. Although Beverly contends that Detective Hollope ter forced him to his feet and slammed him against the wall in the interview room, the audiovisual recording of the interview does not depict these actions. The recording does support Beverl y’s claim that Detective Hollopeter orally threatened him, saying “you [Beverly] are not go ing down for a couple of years. You’re going down for a couple of decades.” Beverly acknowledges that three days later, he asked to speak with Detective Hollopeter regarding his arrest, through a jail deputy, Matthew Kerns. {¶ 15} At the second interview, three days late r, Detective Hollopeter began by asking Beverly if he remembered invoking his right to counsel at the first interview. Beverly stated that he was “pretty messed up,” and that he did not even re member speaking with Detective Hollopeter in the first interview or invoking hi s right to counsel. Beverly then informed Detective Hollopeter that he wanted to discuss his role in the crimes for which he was arrested and taken into custody. Detec tive Hollopeter read Beverly his Miranda rights. Detective Hollopeter then asked Beverly to read the rights waiver out loud, in order to make sure that he understood the contents of the form. Beverly indi cated that he understood his rights. Detective Hollopeter also informed Beverly that he had ju st spoken with the prosecutor assigned to the case. According to Detective Hollopeter, the prosecutor stated that “life will be better” for whomever confesses first, be it Beverly or his co-defendant, Imbe r. Thereafter, Beverly waived his rights and made a number of incriminating statements regarding his role in the burglaries and thefts for which he was charged.7 {¶ 16} A defendant’s statement to police is voluntary absent evidence that his will was overborne and his capacity for se lf-determination was critically impaired due to coercive police conduct. Colorado v. Spring , 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); State v.
Otte , 74 Ohio St.3d 555, 562, 1996-Ohio-108, 660 N.E.2d 711. “In deciding whether a defendant’s confession is involunt arily induced, the court should c onsider the totality of the circumstances, including the age, mentality, and prior crimin al experience of the accused; the length, intensity, and fre quency of interrogation; the existe nce of physical deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), at paragraph two of th e syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). See also , State v. Brewer , 48 Ohio St.3d 50, 58, 549 N.E.2d 491 (1990); State v. Marks , 2d Dist. Montgomery No. 19629, 2003-Ohio-4205. The State has the burden to show by a preponderance of the evidence that a defendant’s confession was voluntarily given. State v. Melchior , 56 Ohio St.2d 15, 381 N.E.2d 195 (1978). A police officer’s “[p]romises that a defe ndant’s cooperation woul d be considered in the disposition of the case, or that a confession would be helpful, doe s not invalidate an othe rwise legal confession.” State v. Loza , 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994) , overruled on other grounds, citing Edwards , 49 Ohio St.2d at 40-41. {¶ 17} Upon review, we conclude that Beverl y’s statements to Detective Hollopeter were not induced by unlawful promises of lenien cy that would render his statements involuntary. Although Detective Hollopeter to ld Beverly “life will be better, ” the detective did not promise Beverly that he would receive a more lenient sentence. Furthermore, Detective Hollopeter did not indicate to Beverly that he had any contro l over the sentence he would receive, if Beverly8 cooperated. We conclude that De tective Hollopeter’s statements to Beverly during both the first and second interviews did not re nder Beverly’s confession involunt ary. The record portrays a knowing and intelligent waiver of Miranda as well. {¶ 18} Beverly’s First Assignment of Error is overruled.

III. The State Failed to Pr ove the “Enterp rise” Element of Engaging in a Pattern of Corrupt Activity {¶ 19} Beverly’s Second Assignment of Error is as follows:
THE JURY’S VERDICT AS TO COUNT I – ENGAGING IN A PATTERN OF CORRUPT ACTIVITY SHOULD BE REVERSED AS IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 20} Beverly argues that his conviction for En gaging in a Pattern of Corrupt Activity is against the manifest weight of the evidence. Specifically, Beverly asserts that the State failed to prove the “enterprise” element of the offense, which requires that there be an ongoing organization, with associates, that functions as a continuing unit with a structure separate and apart from the pattern of corrupt activity. State v. Franklin , 2d Dist. Montgomery Nos. 24011, 24012, 2011-Ohio-6802, citing United States v. Turkette , 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981). {¶ 21} Although Beverly frames his Second A ssignment of Error in terms of a manifest-weight analysis, he actually argues that the evidence in the record is insufficient to support his conviction for Engaging in a Pattern of Corrupt Activity. {¶ 22} “A challenge to the sufficiency of th e evidence differs from a challenge to the9 manifest weight of the evidence.” State v. McKnight , 107 Ohio St.3d 101,112, 2005-Ohio-6046, 837 N.E.2d 315. “In reviewing a claim of insuffici ent evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury verd ict is against the manifest weight of the evidence involves a different test. ‘The court, reviewin g 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 th at the conviction must be reve rsed and a new trial ordered. The discretionary power to grant a new trial s hould be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id

. {¶ 23} Engaging in a Pattern of Corrupt activity , is proscribed by R.C. 2923.32(A)(1), as follows: (A)(1) No person employed by, or asso ciated with, any enterprise shall conduct or participate in, direc tly or indirectly, the affair s of the enterprise through a pattern of corrupt activity or th e collection of an unlawful debt. {¶ 24} An “enterprise” includes 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. R.C. 2923.31(C). {¶ 25} In United States v. Turkette , 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), the United States S upreme Court held that:10 In order to secure a conviction unde r RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity , for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing orga nization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. {¶ 26} We have joined other Ohio courts of appeals in concluding that R.C. 2923.32 (the Ohio RICO Act) is pattern ed after the Federal RICO Act, Section 1962, Title 18, U.S.Code. Franklin , 2011-Ohio-6802. Using the language in Turkette as a guide, in order to establish the existence of an “enterprise” under Ohio’s RICO Act, there must be some evidence of: (1) an ongoing organization, formal or informal; (2) with associates that function as a continuing unit; and (3) with a structure separate and apart, or distinct, from the pattern of corrupt activity. Id .; United States v. Turkette , 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).11 [We have] applied Turkette's evaluation of the existence of an “enterprise” in determining if the defendant's conviction for engaging in a pa ttern of corrupt activity was established by sufficient evidence. See State v. Humphrey , Clark App. No. 02CA0025, 2003–Ohio–2825, ¶ 34; State v. Humphrey , Clark App. No.2002 CA 30, 2003–Ohio–3401, ¶ 41(separate appeal s involving cousins and co -defendants involved in the same criminal “enterprise”); and State v. Fritz , 178 Ohio App.3d 65, 2008–Ohio–4389. In fact, in the latter Humphrey decision, we specifically cited Turkette , noting that the evidence indicated the existence of an ongoing organization that functioned as a continuing unit. 2003–Ohio–3401, at ¶ 41. Subsequently, in Fritz , we cited [ State v. ] Owen , [2d Dist. Miami No. 98 CA 17, 1999 WL 76826 (February 19, 1999),] and noted that we had previously “ ‘reso lved cases questioning the existence of an enterprise under the corrupt activity stat ute without reference to the federal requirements.’ ” 2008–Ohio–4389, at ¶ 48. Despite ha ving made this statement, we did use the federal requirements in Fritz , when we held that the evidence established the existence of an enterprise, because it showed that the defendants had associated in an ongoing organization with a decision-maker and supplier, and a se ller, and had also functioned as a continuing unit. Id . at ¶ 51. State v. Franklin , at ¶ 94. {¶ 27} Expanding upon its holding in Turkette , the United State Supreme Court in Boyle v. United States , 556 U.S. 938,129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), separated its inquiry into three parts: whether the association must have a structure; whether the structure must be “ascertainable”; and whether the st ructure must go beyond what is inherent in the pattern of racketeering activity in which its members engage. Id . at 2244. The Court first concluded that12 an association must have at least three structur al features: “a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purposes.” Id . Next, the Court held that th e word “ascertainable” was redundant and potentially misleading, because each element of any crime must be “ascertainable” in order for the jury to find that the element has been proven beyond a reasonable doubt. Id

. {¶ 28} “Regarding the last part of the inquiry, the Supreme Court reiterated its holding
in Turkette that ‘the existence of an enterprise is a separate element that must be proved.’ Id

. The Court stressed, as it had in Turkette , that ‘the existence of an enterprise is an element distinct from the pattern of racketeering activity and pr oof of one does not nece ssarily establish the other.’ ” Id . at 2245, quoting Turkette , 452 U.S. at 583. Franklin , 2011-Ohio-6802, at ¶ 97.

{¶ 29} In Franklin , we concluded that “[w]e have never specifically rejected the application of federal la w, and, in fact, have both impliedly a nd expressly applie d federal law to Ohio RICO cases when deciding questi ons of sufficiency of the evidence.” Id . at ¶ 105. Applying the definition of “enterprise” outlined in Turkette and Boyle , namely “an ongoing organization with associates that function as a c ontinuing unit with a stru cture separate and apart from the pattern of corrupt activity,” we conclude that the evidence in the record before us is insufficient to prove the “enterprise” element of engaging in a pattern of corrupt activity. {¶ 30} The evidence in the record establishes that Beverly and Imber were acting in concert when they engaged in the crime spree lead ing to these charges. But there is no evidence in the record that Beverly and Imber were involved in any type of ongoing organization, functioning as a continuing unit, with a structur e separate and apart from the pattern of corrupt13 activity. At best, the evidence establishes that Beverly and Imber’s actions were disorganized and chaotic in the commission of the burglaries a nd thefts. Accordingly, Beverly’s conviction for Engaging in a Pattern of Corrupt Activity is not supported by sufficient evidence. His additional contention that the conviction is agai nst the manifest weight of the evidence is therefore moot. {¶ 31} We also note that the trial court erred when it failed to instruct the jury properly regarding the “enterprise” element of engaging in a pattern of corrupt activity. The charge read to the jury only contained the stat utory definition of “enterprise,” wh ich is insufficient as a matter of law. “The definitions outlined in Turkette and Boyle are pertinent, and state the law correctly.” Franklin , 2011-Ohio-6802, at ¶ 106. Thus, the tr ial court erred wh en it failed to instruct the jury on “enterprise” using the definition contained in Turkette and Boyle. {¶ 32} Beverly’s Second Assignment of Error is sustained.

IV. Beverly’s Convictions for Receiving Stolen Property and for Having

a Weapon While Under a Disabilit y Should Have Merged, Since Both Offenses Were Consummated by the Same Act – Possession of a Gun, and Were Animated by the Same Animus – His Desire to Possess a Gun {¶ 33} Beverly’s Third Assignment of Error is as follows:
THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS 17 AND 18 OF DEFENDANT’S CONVICTION AS THOSE COUNTS CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT. {¶ 34} Beverly contends that th e trial court erred when it failed to merge Counts 17 and14 18, which were the Receiving Stolen Property and Having a Weapon While Under a Disability offenses. R.C. 2941.25, concerning allied offenses of similar import, provides: (A) Where the same conduct by defenda nt 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 cons titutes two or more offenses of dissimilar import, or where hi s conduct results in two or more offenses of the same or similar kind committed separately or with a se parate animus as to each, the indictment or information may contai n counts for all such offenses, and the defendant may be convict ed of all of them. {¶ 35} In State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Supreme Court of Ohio revisited the analysis courts should use in determining whether offenses are allied offenses of similar import. Johnson overruled State v. Rance , 85 Ohio St.3d 632, 710 N.E.2d 699 (1999) “to the extent that it calls for a comparison of statutory elements solely in the abstract under R.C. 2941.25.” Johnson at ¶44. Now, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id

. {¶ 36} Johnson states that “the intent of the General Assembly is controlling.” Id . at ¶46. “We determine the Genera l Assembly’s intent by appl ying R.C. 2941.25, which expressly instructs courts to consider the offenses at issue in light of the defendant’s conduct.” Id . The trial court must determine prior to sentencing whether the offenses were committed by the same15 conduct. The trial court is no l onger required to perform hypotheti cal or abstract comparisons of the offenses at issue in order to conclude that the offenses are subject to merger. Id . at ¶47 “In determining whether offenses are allied offe nses of similar import under R.C. 2941.25(A), 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 constitu ting commission of one offense constitutes commission of the other, then the offenses are of similar import.” Id . at ¶48. (Emphasis in original, and internal citation omitted). {¶ 37} “If the multiple offenses can be committe d by the same conduct, then the court must determine whether the offe nses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id . at ¶49 (citation omitted). “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id . at ¶50. “Conversely, if the c ourt determines that the co mmission 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, accord ing to R.C. 2941.25(B), the offenses will not merge.” Id . at ¶51. (Emphasis in original.) {¶ 38} Beverly’s conduct in taking possession of the firearm completed both offenses. To be sure, each offense has additional elements. The Receiving Stolen Property offense has the additional element of “knowing or having reasonable cause to be lieve that the property [was] obtained through the commission of a theft offe nse.” R.C. 2913.51(A). The Having a Weapon While Under a Disability offense has the additi onal element that the offender must be under indictment or have been convict ed of a felony offense of viol ence. R.C. 2923.14(A)(2). Under16 State v. Rance, supra, these would not be allied offenses, because each contains an element not contained by the other. {¶ 39} State v. Johnson, supra, overruled Rance , with its elements-of-the-offense based analysis, replacing it with an analysis based on the defenda nt’s conduct. In Johnson , the Supreme Court recognized that the allied-offenses statute sets forth the defendant’s conduct as the basis for analysis, not the elements of the offenses. State v. Johnson , at ¶ 44. Here, Beverly’s conduct in taking possession of the firearm cons ummated his commission of both offenses. {¶ 40} The next step of the analysis is to determine whether Beverly committed the two offenses with a separate animus as to each. R. C. 2941.25(B). We conclude that he did not. {¶ 41} The Supreme Court of Ohio has interpreted the term “animus” to mean “purpose or, more properly, immediate motive.” State v. Logan , 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979); see also, e.g., State v. Smith , 7th Dist. Mahoning No. 11 MA 120, 2013-Ohio-756, ¶ 89; State v. Harding , 3d Dist. Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 14; State v. Cowan , 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 37; State v. LaPrairie , 2d Dist. Greene No. 2010-CA-09, 2011-Ohio-2184, ¶ 41. “Like all mental states, animus is often difficult to prove directly, but must be inferred from the surrounding circumstances. * * * Where an individual’s immediate motive involves the commission of one o ffense, but in the course of committing that crime he must, A priori, commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime ” Logan at 131. “If the defendant acted with the same purpose, intent, or motive in both instances , the animus is identical for both offenses.”
State v. Lewis , 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.17 {¶ 42} The evidence established that Beverly came into possession of a gun; the gun was stolen, and Beverly was not allowed to possess it due to a legal disability. However, there is nothing to suggest that Beverly possessed the gun w ith distinct motives both to have a stolen gun and to have one while under di sability; he simply wanted to possess a gun. The offenses occurred simultaneously and, based upon the evid ence in the record, one offense did not temporally precede or extend beyond the other. Compare State v. Brown , 3d Dist. Allen No. 1-12-33, 2013-Ohio-854, ¶ 18 (defendant’s posse ssion of firearm after committing burglary demonstrated separate animus for ha ving weapon while under disability); State v. Young , 2d Dist. Montgomery No. 23642, 2011-Ohio-747 (having a weapon while under disability, carrying a concealed weapon, and illegal possession of a firear m in a liquor permit premises did not merge, where defendant acquired the weapon prior to concealing it, and then later brought it into a liquor establishment); State v. Bray , 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, ¶ 23 (same). {¶ 43} The circumstances here are analogous to those in State v. Fairfield , 8th Dist. Cuyahoga No. 97466, 2012-Ohio-5060, in which a defe ndant was charged with multiple counts of Possession of a Dangerous Or dnance, Possession of Criminal Tools, and Receiving Stolen Property, among other charges. These charges arose from the defendant’s possession of shock tubes, detonation cords, blasting caps, and an actua tor, all of which were explosive devices that had been stolen from the United States governme nt while the defendant was in the Army. The trial court merged “the category of offenses for the items that were the same. For instance, the court merged all of the count s for possession of a dangerous ordnance regarding the four detonation cords. However, the court then also sentenced Fairfield for possession of criminal tools and receiving stolen property regarding the same cords.” Id . at ¶ 26.18 {¶ 44} On appeal, the Eighth District Court of Appeals held that the defendant’s offenses of Possession of Criminal Tools, Posse ssion of a Dangerous Ordnance, and Receiving Stolen Property were allied offenses of similar import. The court noted that, under Johnson , “[o]ur focus is now whether it is possible for th e offenses to be committe d by the same conduct.” Id. The court concluded that defendant’s “receivi ng the stolen property in the instant case, results in him also unlawfully possessing a dangerous ordnance and possessing a criminal tool.” Id. The court then concluded that the defenda nt had not acted with a separate animus in committing each offens e. The court stated: “Here, ther e is no indication that Fairfield was acquiring the materials for separa te purposes, or had a separate intent or motive in having the materials. Therefore, the offenses were all committed with the same animus.” Id . at 28. The court concluded that, “under the facts of this case, po ssession of a dangerous ordnance, possession of criminal tools, and receiving stolen property are a llied offenses of similar import that must be merged.” 1 Id . at ¶ 29.

1 The State appealed and asked the Supreme Court of Ohio to review whether Possession of a Dangerous Ordnance and Receiving Stolen Property were allied offenses of similar import. The Supreme Court declined to accept jurisdiction. State v. Fairfield , S.Ct. No. 2012-2103, 2013-Ohio-902 (March 13, 2013). {¶ 45} In this case, Beverly possessed a stolen gun while he was unde r a legal disability from doing so. His immediate motive was to posse ss a gun. There is no indication that Beverly had multiple purposes that would distinguish his having a weapon while under disability from receiving stolen property. The facts that this particular gun was stolen and that Beverly was under disability when he got the gun simply resu lted in the State’s ability to charge him with multiple offenses as a result of Beverly’s possession of the gun; it did not create a separate animus.19 {¶ 46} Because the two offenses were not co mmitted each with a separate animus, the trial court erred when it failed to merge them for sentencing purposes. Beverly’s Third Assignment of Error is sustained.

V. The 661⁄2-year Sentence Imposed in this Case Constitutes an Abuse of Discretion {¶ 47} Beverly’s Fourth and Fifth assi gnments of error are as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE OF 66 1⁄2 YEARS ON THE DEFENDANT. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE UPON THE DEFENDANT THAT WAS NOT CONSISTENT WITH SENTENCES FOR SIMILAR CRIMES COMMITTED BY SIMILAR OFFENDERS. {¶ 48} In his Fourth Assignment of Error, Beve rly contends that th e trial court abused its discretion when it sentenced him to 661⁄2 years in prison. In his Fifth Assignment of Error, Beverly contends that the trial court’s imposition of an aggregate sentence of 661⁄2 years is error, because his co-defendant, Imber, received a signif icantly shorter sentence for essentially the same conduct. 2 {¶ 49} In State v. Barker, 2d Dist. Montgomery No. 22779, 2009-Ohio-3511, at ¶ 36-37, we stated: “ ‘The trial court has full discretion to impose any sentence within the

2 After pleading guilty to ten fourth-degree felony offenses, the trial court sentenced Imber to thirteen and one-half years in prison.20 authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum, consecutive, or more than the minimum

sentences. State v. Foster , 109 Ohio St.3d 1, * * * 2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial court must consider the statutory policies that apply to every felony offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis , 109 Ohio St.3d 54, * * * 2006-Ohio-855, at ¶ 37.’ ” State v. Ulrich , 2d Dist. Montgomery No. 23737, 2011-Ohio-758, at ¶ 20-21. “[E]ven if th ere is no specific mention of [R.C. 2929.11 and R.C. 2929.12], ‘it is presumed that the trial court gave proper consideration to those statutes.’ ” State v. Hall , 2d Dist. Clark No. 10-CA-23, 2011-Ohio-635, ¶ 51. {¶ 50} “ ‘When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to find whether the se ntence is contrary to law. State v. Kalish , 120 Ohio St.3d 23, * * * , 2008-Ohio-4912. If the sentence is not clearly and convincingly contrary to law, the trial court’s decision in im posing the term of imprisonment must be reviewed under an abuse of discretion standard. Id.’ ” State v. Ulrich , 2d Dist. Montgomery No. 23737, 2011-Ohio-758, at ¶ 22. Beverl y’s sentence is not contrary to law. We therefore review his sentence unde r an abuse-of-discretion standard. {¶ 51} Since at least 1940, innumerable Ohio cas es have stated that an abuse of discretion “means more than an error of law or judgment,” which incorrectly implies that a trial court may commit an error of law without abusing its discretion. State v. Bowles, 2d Dist.21 Montgomery No. 23037, 2010-Ohio-278, ¶ 15, citation omitted. To the contrary, “[n]o court – not a trial court, not an appellate court, nor even a supreme cour t – has the authority, within its discretion, to commit an error of law.” Id . at ¶ 26. The abuse-of-discretion standard is more accurately defined as “ ‘[a]n appellate court’s standa rd for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’ ” Id . at ¶ 18, quoting Black’s Law Dictionary, Eighth Edition (2004), at 11. {¶ 52} Upon sentencing Beverly, the trial cour t stated the following as its apparent rationale for imposing th e sentence it ordered: By my calculations, all of your crimes, there is [sic] fifteen distinct victims and that doesn’t even include households that are occupied by more than one
person. Nor does it include the law enforcement officers whose health and safety and lives you put at risk while you were fleeing; nor does that include the women and children in these homes that you burgl arized that no longer have a sense of security in their own homes. Nor does that take into considera tion probably the hundreds maybe even thousands of hours of time a nd effort spent by our local law enforcement agencies, tracking down all the property that you stol e from people, organizing it, trying to return it to the rightful owners. The Court is going to order that Counts 1, 9, 10, 12, 13, 14, 15, 18, 21, 22, 23, 24, [and] 25 run consecutively to one another. The Court is going to order that Counts 2, 3, 5, 11, 16, 17, and 19 run22 consecutively to one another but concurrent with the prev ious list of counts that I mentioned.
* * * The aggregate sentence by my calculations will be sixty-six and one-half years (66 1⁄2 years) in the Ohio State Penitentiary. {¶ 53} A pre-sentence investigation report was not prepared in this case. At sentencing, the State informed the trial court on the record of Beverly’s criminal record, dating back to when he was thirteen years old. The State also noted that at the time of his arrest and indictment in this case, Beverly was under indictment in a separate case for manufacturing drugs. {¶ 54} In outlining the reasons for the sentence it imposed, the trial court did not mention Beverly’s prior criminal history. Instea d, the trial court noted the number of households victimized, the number of people whose personal property was stolen or damaged, and the loss of a sense of security by his victims, which was compromised as a result of Beverly’s crimes. While these considerations were proper, the trial court also sought to justify Beverly’s lengthy sentence by noting that law enfo rcement officers put in “hundreds[ ,] maybe even thousands[,] of hours of time and effort” spent by law enforcemen t agencies in investigating and tracking down all of the property stolen, organizing it, and trying to return said property to its rightful owners. We conclude that the amount of police work involved should not ha ve formed a basis to increase Beverly’s sentence. The police officers, det ectives, and other law enforcement officials involved were performing their respective jobs conducting the investigation, cataloguing, and retrieving the items stolen by Beverly and Imber. {¶ 55} Fortunately, none of the victims suffe red any physical injury. Although the23 anger, fear, and disturbances experienced by the victims may properly be considered, there is nothing in the record to suggest that these psychological injuries were qualitatively greater than those predictably experienced by any victim of a burglary, or that the victims are unlikely to overcome these effects within a reasonable period of time. We also note that the lack of a pre-sentence investigation report in a case of this nature makes it harder to fashion a sentence consistent with the statutory sentencing factors and guidelines found in R.C. 2929.11 and 2929.12. {¶ 56} We do not seek to minimize the criminality of Beverly’s actions and the wrong done to his victims. Neve rtheless, treating this case as if these crimes were the most serious forms of the offenses, and treating Beverly as if he were the most depraved of offenders, is not supported by the evidence in the record. The imposition of the 661⁄2-year sentence in this case deprecates the validity of similar harsh sentences in those cases that truly merit them. As Justice Lanzinger has written, “[i]t is a rare victim who does not consider the crime committed by an offender to be undeserving of a maximum penalty. * * * It will ta ke a courageous judge not to ‘max and stack’ every senten ce in multiple-count cases.” State v. Hairston , 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, at ¶31 (Lanzinger, J., concurring). {¶ 57} Finally, Beverly argues that his co-def endant, Imber, who plead guilty, received a more lenient sentence. Specifically, Imber entered guilty pleas to ten fourth-degree felony offenses and received an aggregat e sentence of thirteen and one-half years in prison, less than a quarter of the sentence Beverly received. State v. Imber , 2d Dist. Clark No. 11 CA 0063, 2012-Ohio-372. Although there is no information in the record to indicat e whether Imber had a prior record, the evidence in the record established that Imber was equally culpable with Beverly24 regarding the charged offenses. On this r ecord, a disparity of over 50 years suggests the appearance of a trial tax, whereby one reason fo r Beverly’s much harsher sentence was that he exercised his right to a jury trial. {¶ 58} We conclude that although Beverly’s sentence is not contrary to law, the evidence in the record does not justify the lengthy sentence imposed herein. Accordingly, we conclude that the trial court abused its discretion when it imposed a sentence of 661⁄2 years in this

case. {¶ 59} Beverly’s Fourth Assignment of Error is sustained; his Fifth Assignment of Error is overruled as moot.

VI. Conclusion {¶ 60} Beverly’s First Assignment of Error having been overruled; his Second, Third and Fourth assignments of error ha ving been sustained; and his Fi fth Assignment of Error having been overruled as moot, his c onviction and sentence for Engaging in a Pattern of Corrupt Activity is Reversed and Vacated; his sentence is Reversed; and this cause is Remanded for the merger of the Receiving Stolen Property a nd Having a Weapon While Under a Disability convictions and for re-sentencing.

. . . . . . . . . . FROELICH, J., concurs. DONOVAN, J., concurring in part and dissenting in part: {¶ 61} I disagree solely with the majority’s resolution of the third assignment of error regarding merger of the Receiving Stolen Property and Having a Weapon While Under a25 Disability offenses. Beverly acquired the legal disability that prevents him from possessing a firearm long before he came into possession of this stolen gun. The Weapons Under Disability statute punishes Beverly for his own past conduct as well as his current conduct. {¶ 62} Furthermore, the gravamen of the receiving stolen property charge is the acquisition of a stolen gun which necessitates a me ns rea distinct from ac quiring of a gun while under legal disability. Non-merger in this case would not run afoul of the General Assembly’s intent under R.C. 2923.13 to protect the general pub lic from “bad risks” such as Beverly from having a weapon. Nor would it offend the purpose of R.C. 2941.25 to prevent shotgun convictions.

. . . . . . . . . . Copies mailed to: Lisa M. Fannin Marshall G. Lachman Hon. Douglas M. Rastatter
Case Name: State of Ohio v. Jordan Beverly Case No.: Clark App. No. 2011 CA 64 Panel: Fain, Donovan, Froelich Author: Mike Fain Summary: