[Cite as State v. Sutton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 102300 and 102302

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

AMY SUTTON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-582703-A and CR-14-582808-B

BEFORE: E.A. Gallagher, J., Keough, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: October 1, 2015 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Timsi Pathak Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} Defendant-appellant Amy Sutton appeals her convictions for kidnapping,

aggravated robbery, felonious assault, burglary and grand theft in the Cuyahoga County

Court of Common Pleas. Sutton argues that her trial counsel erred in failing to object to

the joinder of certain offenses for trial, that her convictions were not supported by

sufficient evidence and were against the manifest weight of the evidence, that the trial

court failed to make required findings at sentencing and that the trial court failed to merge

certain offenses as allied offenses. For the following reasons, we affirm and remand.

{¶2} On February 24, 2014 Sutton was indicted in CR-14-582808-B for burglary

and grand theft. On March 3, 2014 Sutton was indicted in CR-14-582703-A for

kidnapping, two counts of aggravated robbery, two counts of felonious assault all with

firearm specifications and having weapons while under disability. The state filed a

motion to consolidate the two cases for trial. Sutton’s attorney did not file a brief in

opposition to joinder or otherwise object and the cases were tried together before a jury.

{¶3} The following facts were elicited at trial: On February 7, 2014, Ryan

Swanson found an advertisement for escort services placed on a website called

“backpage.com” by Sutton, which included photos of Sutton and her phone number.

Swanson contacted Sutton via text message and made arrangements to meet for an hour

or a half-an-hour sexual encounter for which Swanson was to pay Sutton $100. At the

time, Sutton and her boyfriend, Earl Banks, were residing at the home of Donald Tanks,

Jr. Sutton instructed Swanson to come to Tanks’ home at 4067 East 68th Street in Cleveland and text her to be let in when he arrived.

{¶4} When Swanson arrived at the home, Sutton let him in the rear door and led

him through a kitchen and into a bedroom. Sutton shut the bedroom door behind them

and asked for the money. Swanson testified that he placed $100 in an envelope on a

dresser and began to undress. Sutton counted the money before beginning to undress as

well. Swanson was completely nude and Sutton was in the process of disrobing when

Swanson heard a “kick” from outside the room. Swanson testified that the bedroom

doorjamb cracked and Earl Banks entered the room. Swanson reached for a handgun

which was in his discarded pants. A struggle ensued between Banks and Swanson over

control of the gun. The two began wrestling and the fight spilled out of the bedroom

and into the kitchen.

{¶5} Donald Tanks testified that he was sleeping in a front bedroom of the

residence when he woke to “a lot of noise” and found Swanson, whom he did not know,

completely naked and wrestling for control of a gun on the kitchen floor with Banks,

whom Tanks knew as Sutton’s boyfriend, and Sutton, who was watching the struggle.

At Banks’ instruction, Tanks struck Swanson over the head with a chair because he did

not understand what was happening and was scared. Tanks testified that the wrestling

between Banks and Swanson continued until the gun discharged during the struggle and

Swanson was shot in the right thigh. In contrast, Swanson testified that Banks gained

control of the gun and shot him twice from a distance of ten feet. The medical testimony

did not support Swanson’s claim that he was shot twice. Swanson also testified that he was pistol whipped in the head by Banks, a fact that was not part of Tanks’ account of the

fight.

{¶6} Tanks testified that after Swanson was shot, Banks gained control of the gun

and threatened to shoot Swanson in the head before Tanks dissuaded him. Tanks pushed

Swanson out of the home and, in response to his pleading, ordered Sutton to give him his

car keys. Sutton threw Swanson’s car keys outside and left the home with Banks, who

was carrying Swanson’s gun in a towel.

{¶7} Swanson, still nude and bleeding from a gunshot wound to his thigh, drove

from the home in his car and shortly thereafter flagged down a passing police cruiser

driven by Cleveland Police Sergeant Bryan Moore. Swanson told Moore that he had

been shot and robbed at a gas station at 71st Street and Harvard. However, a police

investigation quickly revealed this story to be a fabrication. Swanson admitted that he

initially lied to police about the source of his gunshot wound because he did not want his

grandmother to learn that he had solicited a prostitute.

{¶8} Neighbors called the police after hearing the gunshot and Tanks remained at

the home to provide his account of the encounter. Tanks called Sutton and demanded

that she return to the home to speak with police. Sutton told police that she met

Swanson on backpage.com and that they had agreed for him to come over and pay her

$100 for adult dances and talk. Sutton alleged that when Swanson arrived, he took his

clothes off but did not have the agreed upon money and instead pulled out a gun and tried

to rob or rape her at gunpoint. According to Sutton, at that point Banks entered the room and the fight began. She claimed that she did not see the gun go off. Sutton

provided police with the name of Dwayne Wilson as her boyfriend.

{¶9} Michael Levine testified that five days later, in the early morning hours of

February 12, Sutton and Banks, whom he knew through a mutual friend, were at a home

he was renting from his grandmother at 4492 Jewett Avenue in Cleveland. Levine

testified that he handles the renting of the units at 4492 Jewett Avenue and Sutton and

Banks had expressed an interest in renting the home. Levine anticipated introducing

Sutton and Banks to his grandmother and allowed them to spend the night at the home.

{¶10} Levine left the keys to a white Chevy Impala with the license plate “GBW

2832” that his mother had entrusted to him on a TV stand and slept upstairs while Sutton

and Banks slept on the ground level. When he woke the next morning the keys and the

car, which had been parked in the front yard, were gone. He called and sent text

messages to the phone number he had for Sutton and was strung along with promises on

February 12 and 13 that the car would be returned. When it was not, he reported the car

stolen to police.

{¶11} Although Levine testified that he had previously allowed Sutton and Banks

to use his mother’s car in exchange for drugs, he did not give Sutton or Banks permission

to the use the vehicle on February 12, 2014. Levine testified that, had he known that

Sutton and Banks intended to steal his car, he would not have allowed them to spend the

night at his home.

{¶12} Cleveland Police Detective Phillmore Evans testified that he interviewed Sutton at the Fourth District Precinct on February 12, 2014. Sutton told Evans that on

February 7, 2014 she invited Dwayne Wilson to spend the night with her after Swanson

was late to their arranged rendezvous and she no longer believed Swanson was coming to

her home. However, Swanson did appear and when Wilson arrived shortly thereafter he

found Swanson attempting to rape her at gunpoint. Sutton claimed that after the

shooting occurred she left the home separately from Wilson.

{¶13} After the interview concluded and Sutton left the precinct, Kenneth Allen, a

Cleveland police patrol officer spotted a white Chevy Impala with the license plate GBW

2832 in the driveway at 3464 West 73rd Street in Cleveland. Banks was arrested at the

scene in possession of the car’s keys. Banks told Allen that he had just come from the

Fourth District Precinct where he had dropped off a female friend. While police

remained on scene with Banks in the back of a squad car, Sutton appeared and asked to

retrieve her cell phone from the Impala. Sutton was arrested and returned for a second

interview with Evans where she admitted that Dwayne Wilson’s real name was Earl

Banks and that he was the individual involved in the shooting of Ryan Swanson. Sutton

further admitted that she lied to Evans about Banks’ whereabouts and the fact that he had

dropped her off at the precinct earlier in the day.

{¶14} At the conclusion of trial, in CR-14-582703-A the jury found Sutton guilty

of kidnapping, one count of aggravated robbery and two counts of felonious assault and

not guilty of all firearm specifications. The jury found Sutton not guilty of the

remaining charges. In CR-14-582808-B the jury found Sutton guilty of burglary and grand theft.

{¶15} In CR-14-582703-A the trial court merged Sutton’s kidnapping and

aggravated robbery offenses as allied offenses and Sutton’s two felonious assaults as

allied offenses. The state elected to proceed to sentencing on the aggravated robbery

charge and the felonious assault charge, which was in violation of R.C. 2903.11(A)(1).

Sutton was sentenced to an 11-year prison term for aggravated robbery and a five-year

prison term for felonious assault. The trial court ordered Sutton’s sentences in

CR-14-582703-A to be served consecutively for a cumulative prison sentence of 16 years.

{¶16} In CR-14-582808-B the trial court imposed an eight-year prison term for

burglary and a six-month prison term for grand theft. The two terms were ordered to be

served concurrently.

{¶17} In her first assignment of error, Sutton argues that her trial counsel was

ineffective for failing to oppose the joinder of her indictments in CR-14-582703-A and

CR-14-582808-B for purposes of trial. We find no merit to this argument.

{¶18} In order to establish a claim of ineffective assistance of counsel, a defendant

must demonstrate that (1) the performance of defense counsel was seriously flawed and

deficient, and (2) the result of defendant’s trial or legal proceeding would have been

different had defense counsel provided proper representation. Strickland v. Washington,

,

,

(1984).

{¶19} Sutton argues that the joinder of the two indictments for trial was

inappropriate because the incidents were not relevant to each other and their joinder raised the danger that the jury would convict her solely because it assumed that she had a

propensity to commit criminal acts.

{¶20} Under Crim.R. 8(A), which governs the joinder of offenses, two or more

offenses may be charged together if the offenses “are of the same or similar character, * *

* or are based on two or more acts or transactions connected together or constituting parts

of a common scheme or plan, or are part of a course of criminal conduct.” Similarly,

Crim.R. 13 provides that a trial court may order two or more indictments or informations,

or both, to be tried together, “if the offenses or the defendants could have been joined in a

single indictment or information.”

{¶21} The law favors joining multiple offenses in a single trial if the requirements

of Crim.R. 8(A) are satisfied. State v. Ferrell, 8th Dist. Cuyahoga No. 100659,

. If it appears, however, that the defendant would be prejudiced

by the joinder, a trial court may grant a severance. Crim.R. 14; State v. Diar,

,

,

. The defendant bears the burden of

proving prejudice. State v. Brinkley,

,

,

, ¶ 29.

{¶22} The state may rebut a defendant’s claim of prejudicial joinder in two ways:

(1) by showing that, if in separate trials, the state could introduce evidence of the joined

offenses as “other acts” under Evid.R. 404(B), which is known as the “other acts” test; or

(2) by showing that the evidence of each crime joined at trial is simple and direct, which

is known as the “joinder test.” State v. Lott,

,

(1990). “A trier of fact is believed capable of segregating the proof on multiple charges

when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th Dist.

Cuyahoga No. 101223,

, citing State v. Torres,

,

(1981). Joinder is therefore not prejudicial when the

evidence is direct and uncomplicated and can reasonably be separated as to each offense.

{¶23} If the state can meet the requirements of the “joinder test,” it need not meet

the requirements of the stricter “other acts” test. State v. Franklin,

,

(1991). A defendant is therefore not prejudiced by joinder when

simple and direct evidence exists, regardless of the admissibility of evidence of other

crimes under Evid.R. 404(B).

{¶24} This court reviews a trial court’s decision on joinder for an abuse of

discretion. State v. Grimes, 8th Dist. Cuyahoga No. 94827,

, citing

State v. Segines, 8th Dist. Cuyahoga No. 89915,

.

{¶25} In this instance, the incidents charged in the two indictments were connected

temporally and factually as described above. Furthermore, the evidence presented by the

state with regard to each offense was simple and direct. There is no indication in the

record that the jury confused the evidence as to the different counts or that the jury was

influenced by the cumulative effect of the joinder. In fact, the jury’s not guilty verdicts

on several of the charges demonstrated the jury’s ability to apply the evidence separately

to each offense. State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899,

, ¶ 69. Joinder was, therefore, not prejudicial.

{¶26} Sutton’s first assignment of error is overruled.

{¶27} In Sutton’s second assignment of error she argues that the evidence was

insufficient as a matter of law to support a finding beyond a reasonable doubt that

appellant was guilty of kidnapping, aggravated robbery and felonious assault in

CR-14-582703-A and burglary and grand theft in CR-14-582808-B.

{¶28} This court has said that, in evaluating a sufficiency of the evidence

argument, courts are to assess not whether the state’s evidence is to be believed but

whether, if believed, the evidence against a defendant would support a conviction. State v.

Givan, 8th Dist. Cuyahoga No. 94609,

, ¶ 13, citing State v. Thompkins,

,

(1997). The relevant inquiry then is whether,

after viewing 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.

{¶29} Sutton’s convictions were based on accomplice liability, which is governed

by R.C. 2923.03, the pertinent parts of which state as follows:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall * * * (2) Aid or abet another in committing the offense * * *.

***

(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. {¶30} In CR-14-582703-A Sutton was convicted of kidnapping in violation of

R.C. 2905.01(A)(2), aggravated robbery in violation of R.C. 2911.01(A)(3) and two

counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2). The kidnapping

statute provides:

(A) No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, by any means, shall

remove another from the place where the other person is found or restrain

the liberty of the other person, for any of the following purposes:

***

(2) To facilitate the commission of any felony or flight thereafter; ***

R.C. 2905.01(A)(2).

{¶31} Sutton argues that there was no evidence that Swanson’s liberty was

restrained in this case. This court has previously defined the element of “restrain the

liberty of the other person” to mean “to limit one’s freedom of movement in any fashion

for any period of time.” State v. Wright, 8th Dist. Cuyahoga No. 92344,

,

¶ 23-24, quoting State v. Wingfield, 8th Dist. Cuyahoga No. 69229,

(Mar. 7, 1996). See also State v. Walker, 9th Dist. Medina No. 2750-M,

(Sept. 2, 1998) (restraint of liberty does not require prolonged

detainment); State v. Messineo, 5th Dist. Athens Nos. 1488 and 1493,

(Jan. 6,1993) (grabbing victim’s arm and shaking her constituted restraint). R.C. 2901.01(A)(1) defines “force” as meaning any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.

{¶32} We find that the state offered sufficient evidence of Swanson’s liberty being

restrained. Swanson testified that he did not voluntarily move into the kitchen during

the struggle with Banks and, while he was on the ground in the kitchen, he was not free to

get up and leave because Banks was between himself and the exit. We reject Sutton’s

argument that the state offered insufficient evidence to support a kidnapping charge.

{¶33} With respect to Sutton’s convictions for aggravated robbery and felonious

assault, Sutton argues that she was not complicit in the actions of Banks because she did

not intend for Swanson to get hurt.

To support a conviction for complicity by aiding and abetting pursuant to

R.C. 2923.03(A)(2), the evidence must show that the defendant supported,

assisted, encouraged, cooperated with, advised, or incited the principal in

the commission of the crime, and that the defendant shared the criminal

intent of the principal. Such intent may be inferred from the circumstances

surrounding the crime.”

State v. Johnson,

,

,

, syllabus.

{¶34} “Participation in criminal intent may be inferred from presence,

companionship and conduct before and after the offense is committed.” Id. at 245,

quoting State v. Pruett,

,

(4th Dist. 1971). “It is a

fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.” State v. Conway,

,

,

, ¶ 143, quoting State v. Johnson,

,

(1978). An accused need not foresee the precise consequences of his

conduct. State v. Spates, 8th Dist. Cuyahoga No. 100933,

, ¶ 54, citing

State v. Smith, 4th Dist. Ross No. 06CA2893,

. “To be actionable it

is only necessary that the result is within the natural and logical scope of risk created by

the conduct.”

This presumption is rebuttable and the matter is one ultimately for the

trier of fact. State v. Lacavera, 8th Dist. Cuyahoga No. 96242,

,

citing State v. Wright, 2d Dist. Montgomery No. CA 6394,

(Sept. 30, 1980).

{¶35} In this instance, the state introduced a combination of direct and

circumstantial evidence to demonstrate that Sutton lured Swanson to her home for the

alleged purpose of engaging in sex for hire but with the true purpose of robbing him by

force. That Swanson might suffer serious physical harm as a result of this plan was

entirely foreseeable. Sutton’s argument that she was not complicit in the actions of

Banks because she did not intend for Swanson to be harmed is without merit.

{¶36} In CR-14-582808 Sutton was convicted of burglary in violation of R.C.

2911.12(A)(1) and grand theft in violation of R.C. 2913.02(A)(1). In regard to the

burglary charge, Sutton argues that the state failed to offer sufficient evidence that she

committed a burglary by deception because Levine invited Sutton and Banks to stay the

night in the home. We disagree. R.C. 2911.12(A)(1) defines burglary as follows: (A) No person, by force, stealth, or deception, shall do any of the following:

(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense; * * *.

R.C. 2911.12(A)(1).

{¶37} R.C. 2911.10 clarifies that the trespass element of burglary refers to a

violation of R.C. 2911.21 which defines criminal trespass. R.C. 2911.21 further

explains that it is no defense to a trespass charge that the offender was authorized to enter

or remain on the premises when such authorization was secured by deception. R.C.

2911.21(C). Therefore, Sutton’s argument fails because the state presented sufficient

evidence that Levine may have been motivated to allow Sutton and Banks to spend the

night in his home by a fabricated expression of interest in renting the property when in

truth they intended to steal his car keys.

{¶38} We next examine Sutton’s argument that the state failed to present

sufficient evidence to support her conviction for grand theft of a motor vehicle. The

elements of grand theft of a motor vehicle are stated in R.C. 2913.02(A)(1) as follows:

(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

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

R.C. 2913.02(A)(1). {¶39} Sutton argues that the state failed to present sufficient evidence that she and

Banks exerted control over Levine’s car without his consent. This argument is without

merit because Levine testified that Sutton and Banks did not have permission to use the

vehicle at the time of the offense on February 12, 2014.

{¶40} Sutton’s second assignment of error overruled.

{¶41} In Sutton’s third assignment of error she argues that her convictions for

kidnapping, aggravated robbery and felonious assault in CR-14-582703-A and burglary

and grand theft in CR-14-582808-B were against the manifest weight of the evidence.

{¶42} A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial. State v.

Whitsett, 8th Dist. Cuyahoga No. 101182,

, citing State v.

Thompkins,

,

,

; State v. Bowden, 8th

Dist. Cuyahoga No. 92266,

, ¶ 13. Because it is a broader review, a

reviewing court may determine that a judgment of a trial court is sustained by sufficient

evidence, but nevertheless conclude that the judgment is against the weight of the

evidence.

{¶43} “When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may

disagree ‘with the factfinder’s resolution of conflicting testimony.’” Thompkins at 387,

quoting Tibbs v. Florida,

,

,

(1982). The

reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

Thompkins at 387, citing State v. Martin,

,

(1st

Dist. 1983). In conducting such a review, this court remains mindful that the credibility of

witnesses and the weight of the evidence are matters primarily for the trier of fact to

assess. State v. DeHass,

,

(1967), paragraphs one and

two of the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional

case in which the evidence weighs heavily against the conviction.” Thompkins at 387,

quoting

{¶44} As to CR-14-582703-A, Sutton argues that the jury lost it way in believing

the testimony of Swanson over her own version of the events the night of February 7,

2014, which were presented to the jury by the way of recorded statements provided to

police by Sutton and Banks. Sutton correctly points out that Swanson is not the most

credible witness. Swanson admitted to lying to police about the cause and situs of his

injuries to avoid implicating himself in a prostitution scheme. Furthermore, Swanson’s

account of the altercation between himself and Banks contains what appear to be

embellishments. First, Swanson claimed that Banks broke through the bedroom door

when he confronted Swanson, damaging the doorjamb in the process. There was no

physical evidence to support this allegation.

{¶45} Furthermore, Swanson claimed that Banks first shot him from a distance of ten feet and then, when Swanson struggled to his feet, Banks shot him a second time.

Swanson had gunshot wounds to his thigh on opposite sides and physical evidence and

testimony from the treating physician established that a single bullet had traveled through

and through Swanson’s thigh and no bullets remained in his leg. Additionally, police

recovered a single shell casing from the kitchen.

{¶46} Despite an imperfect accounting of the incident from the victim, Sutton’s

version of events can hardly be given greater credibility. Sutton admitted to arranging

for Swanson to come to her home for sexual conduct for hire but claimed that as time

passed she no longer believed he would arrive and then invited Banks to spend the night

with her. She claimed that Banks had no knowledge of her prostitution activities but

was not troubled by the fact that when Swanson arrived to engage her services, Banks

was also on his way to visit her. Sutton did not call Banks to forestall his arrival despite

the appearance of Swanson. Sutton was unable to explain to police how the apparently

blissfully ignorant Banks could have believed that she gave “massages” at 3 a.m. in the

morning. Furthermore, it is uncontroverted that Sutton lied to police during her initial

interview about her connection to Banks and knowledge of his whereabouts.

{¶47} On these facts we cannot say that the jury clearly lost its way and created a

manifest miscarriage of justice when it chose to believe Swanson over Sutton.

{¶48} In CR-14-582808-B, Sutton again argues that the victim, Mr. Levine, lacked

credibility because he admitted to marijuana and crack cocaine use. Sutton argues that

Levine lied at trial and that he had given Sutton and Banks permission to use his car in exchange for drugs and only reported the car stolen when they were slow to return it.

Levine’s credibility was a matter for the jury to assess and we are not persuaded by

Sutton’s arguments.

{¶49} However, this writer would find Sutton’s conviction for burglary to be

against the manifest weight of the evidence. Weighing all the evidence and reasonable

inferences, considering the credibility of the witnesses involved in the burglary offense

and conflicts in the evidence, this writer believes that the jury lost its way in finding

Sutton guilty of burglary. The state’s theory on the burglary charge is that Sutton and

Banks gained access to Levine’s home the morning of February 12, 2014, by way of a

deception relating to their interest in renting the property when, in truth, their purpose was

to steal Levine’s car keys. This writer believes that the evidence supports this

conclusion. In my opinion, the evidence reveals the theft of the car to be a crime of

opportunity rather than a burglary.

{¶50} Although he attempted to downplay his drug usage, Levine eventually

admitted that Sutton provided him with crack cocaine during the day of February 11,

2014 and that he smoked crack and marijuana that day along with Sutton and Banks.

Levine went upstairs to sleep at 1:30 a.m. on February 12th and as to Sutton and Banks

spending the night, testified as follows:

Question: You let them stay at your house to test the place out?

Answer: They needed a place to stay. They weren’t sleeping anywhere but on the street, from what I was told.

{¶51} Although there may have been some discussion of renting the property, in my opinion, the manifest weight of the evidence suggests that Sutton and Banks were at

Levine’s home into the early morning hours of February 12, 2014, for the purpose of

smoking crack and marijuana with him and, when Levine retired for the night, he allowed

them to stay because they had nowhere else to go. Thus, in my opinion, the theft of

Levine’s car was not the product of deception but rather an independent crime of

convenience while they were lawfully in his home.

{¶52} In short, the writer believes that Sutton and Banks did not gain permission to

enter or remain in Levine’s home the morning of February 12th by deception and,

therefore, did not commit a trespass of the property. Although the state introduced some

scintilla of evidence to survive a sufficiency challenge on this issue, I would find Sutton’s

conviction for burglary to be against the manifest weight of the evidence.

{¶53} However, because there is not unanimity on this issue, the burglary

conviction is affirmed. Reversing a conviction on the manifest weight of the evidence

requires the unanimous concurrence of all three appellate judges. State v. Thompkins,

,

,

, at paragraph four of the syllabus, citing

Section 3(B)(3), Article IV of the Ohio Constitution (noting that the power of the court of

appeals is limited in order to preserve the jury’s role with respect to issues surrounding

the credibility of witnesses).

{¶54} Sutton’s third assignment of error is overruled.

{¶55} In Sutton’s fourth assignment of error she claims that the trial court erred

when it failed to merge as allied offenses of similar import Counts 3 and 5 in CR-14-582703-A and Counts 1 and 2 in CR-14-582808-B.

{¶56} R.C. 2941.25(A) allows only a single conviction for conduct that constitutes

“allied offenses of similar import.” But under R.C. 2941.25(B), a defendant charged with

multiple offenses may be convicted of all the offenses if any one of the following is true:

(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the

offenses were committed separately, or (3) the conduct shows that the offenses were

committed with separate animus. State v. Ruff,

,

,

, citing State v. Moss,

,

(1982).

{¶57} In Ruff the Ohio Supreme Court recently clarified the test a trial court and a

reviewing court must employ in determining whether offenses are allied offenses that

merge into a single conviction, stating:

When the defendant’s conduct constitutes a single offense, the defendant

may be convicted and punished only for that offense. When the conduct

supports more than one offense, however, a court must conduct an analysis

of allied offenses of similar import to determine whether the offenses merge

or whether the defendant may be convicted of separate offenses. R.C.

2941.25(B).

A trial court and the reviewing court on appeal when considering whether

there are allied offenses that merge into a single conviction under R.C.

2941.25(A) must first take into account the conduct of the defendant. In

other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses (1) the offenses are dissimilar in import or

significance — in other words, each offense caused separate, identifiable

harm; (2) the offenses were committed separately, and (3) the offenses were

committed with separate animus or motivation.

At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

Id. at ¶ 24-26.

{¶58} In CR-14-582703-A Sutton argues that her aggravated robbery and

felonious assault convictions should have been merged as allied offenses. Although

Sutton requested the merger of all offenses in CR-14-582703-A, the trial court merged

only the aggravated robbery with the kidnapping and the two felonious assaults with each

other.

{¶59} Sutton was convicted of aggravated robbery in violation of R.C.

2911.01(A)(3) which provides:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:

(3) Inflict, or attempt to inflict, serious physical harm on another.

{¶60} In this case, the felonious assault and the aggravated robbery were

committed with the same conduct. The facts reveal that Swanson was shot once in the

leg during the struggle with Banks. Both the aggravated robbery and merged felonious

charge required the state to establish the element of serious physical harm. The serious

physical harm element in both counts references the same gun-related injuries suffered by

Swanson. Therefore, we cannot say that the two offenses were committed with separate

conduct or resulted in separate, identifiable harms such that the offenses were of

dissimilar import.

{¶61} The sole remaining question is whether the offenses were committed with a

separate animus. This court in State v. Bailey, 8th Dist. Cuyahoga No. 100993,

, stated:

However, the issue of whether two offenses are allied depends not only on

whether the two crimes were committed in the same act, but also with a

single state of mind. The Ohio Supreme Court has defined the term

“animus” to mean “purpose or, more properly, immediate motive.” State v.

Logan,

,

(1979). Because animus is

often difficult to prove directly, it may be inferred from the surrounding

circumstances. When “an individual’s immediate motive involves the

commission of one offense, 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.”

Thus, when determining whether two offenses were committed with a separate animus, the court must consider (1) whether the first offense was merely incidental to the second offense or whether the defendant’s conduct in the first offense demonstrated a significance independent of the second, and (2) whether the defendant’s conduct in the first offense subjected the victim to a substantial increase in the risk of harm apart from that involved in the second offense. State v. Shields, 1st Dist. Hamilton No. C-100362,

, ¶ 17.

at ¶ 34 and 35.

{¶62} In this instance, we cannot say that the trial court erred in refusing to merge

the offenses because the record contains evidence that establishes the crimes were

committed with separate animus. This court has previously held that where a defendant

uses greater force than necessary to complete aggravated robbery, he shows a separate

animus. Bailey, ¶ 37. Swanson testified that during the course of his struggle with

Banks, Banks obtained control of the gun and, from a standing position at a distance of

ten feet, Banks shot Swanson, who remained on the ground. Banks, in control of the

gun and standing ten feet from Swanson, naked and on the ground, possessed a separate

animus when he shot Swanson as opposed to his animus in committing the aggravated

robbery. The shooting was not necessary to complete the robbery at that point. Id. at ¶

38. Therefore, the felonious assault was not merely incidental to the aggravated robbery

and the convictions do not merge.

{¶63} In CR-14-582808-B Sutton argues that her burglary and grand theft

convictions should have been merged as allied offenses. We disagree because the record reflects that the offenses were committed with separate conduct.

{¶64} Sutton’s burglary was accomplished when she and Banks used deception to

obtain Levine’s consent to remain in the home throughout the night with the intention to

commit a theft offense. State v. Richardson, 8th Dist. Cuyahoga No. 100115,

; State v. Smith, 8th Dist. Cuyahoga No. 95243,

. Only at some later, unknown point during the night, after the trespass by deception

had been accomplished and Levine had retired for the night did Sutton and Banks steal

the keys to Levine’s car. Therefore, the two offenses were committed with separate

conduct and do not merge as allied offenses of similar import. Id.; State v. Smith, 8th

Dist. Cuyahoga No. 100641,

.

{¶65} Sutton’s fourth assignment of error is overruled.

{¶66} Sutton argues in her fifth assignment of error that the trial court erred by

imposing the maximum consecutive sentence and failing to make the required findings

under R.C. 2929.11 and 2929.12.

{¶67} We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). Under R.C. 2953.08(G)(2), an appellate court may increase, reduce or

modify a challenged felony sentence or may vacate the sentence and remand the matter to

the sentencing court for resentencing if it “clearly and convincingly finds” that the

sentence is “contrary to law.” R.C. 2953.08(G)(2).

{¶68} A sentence is contrary to law if the trial court fails to consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State v. Carrington, 8th Dist. Cuyahoga No. 100918,

, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511,

.

{¶69} Sutton argues that the trial court failed to consider the purposes and

principles of sentencing under R.C. 2929.11 or the seriousness and recidivism factors

listed in R.C. 2929.12 when it imposed the maximum sentence for the aggravated robbery

and burglary offenses and ordered the aggravated robbery sentence to be served

consecutively to Sutton’s sentence for felonious assault. Sutton further argues that the

trial court erred in failing to give a specific analysis as to its consideration of the factors

in R.C. 2929.12.

{¶70} R.C. 2929.11 provides that a sentence imposed for a felony shall be

reasonably calculated to achieve two “overriding purposes” of felony sentencing: (1) “to

protect the public from future crime by the offender and others” and (2) “to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A), (B). R.C. 2929.11(A) states that “[t]o achieve these

purposes, the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.” R.C. 2929.11(B)

further requires that the sentence imposed be “commensurate with and not demeaning to

the seriousness of the offender’s conduct and its impact upon the victim” and “consistent with sentences imposed for similar crimes committed by similar offenders.”

{¶71} R.C. 2929.12 grants discretion to the trial court to determine the most

effective way to comply with the purposes and principles set forth in R.C. 2929.11 when

imposing a sentence. However, in exercising this discretion, the court must consider a

non-exhaustive list of factors relating to the seriousness of the offender’s conduct and the

likelihood of recidivism and may, in addition, consider any other factors relevant to

achieving these purposes and principles of sentencing.

{¶72} Although there is a mandatory duty to “consider” the relevant statutory

factors under R.C. 2929.11 and 2929.12, the sentencing court is not required to engage in

any factual findings under R.C. 2929.11 or 2929.12. State v. Bement, 8th Dist. Cuyahoga

No. 99914,

; State v. Combs, 8th Dist. Cuyahoga No. 99852,

. While trial courts must carefully consider the statutes that apply to

every felony case, it is not necessary for the trial court to articulate its consideration of

each individual factor as long as it is evident from the record that the principles of

sentencing were considered. State v. Roberts, 8th Dist. Cuyahoga No. 89236,

. This court has found that a trial court’s statement in its sentencing

journal entry that it considered the required statutory factors, without more, is sufficient to

fulfill a trial court’s obligations under R.C. 2929.11 and 2929.12. State v. Clayton, 8th

Dist. Cuyahoga No. 99700,

.

{¶73} Sutton’s argument that the trial court failed to consider the relevant statutory

factors under R.C. 2929.11 and 2929.12 is without merit. Aside from the trial court’s notation in the sentencing entry that it “considered all required factors of law” including,

specifically, R.C. 2929.11, the record in this case reflects that the trial court did, in fact,

consider both R.C. 2929.11 and 2929.12 when sentencing Sutton. Both Sutton and her

counsel had an opportunity to address the trial court prior to sentencing and make

arguments in mitigation. The trial court obtained a presentence investigation report for

Sutton and noted Sutton’s drug abuse and significant criminal history. Sutton’s

argument that the trial court failed to consider R.C. 2929.11 and 2929.12 is without merit.

{¶74} Aside from her assertion that the trial court failed to consider R.C. 2929.11

and 2929.12, Sutton presents no argument regarding the trial court’s imposition of

consecutive sentences in light of the above facts. Regarding the imposition of the

maximum sentence for aggravated robbery, there is no statutory requirement for findings

in order to impose such a sentence, and a trial court has the discretion to impose a prison

sentence within the statutory range. “Trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum * * * sentences.” State v. Foster,

,

,

, paragraph seven of the syllabus. Because the trial

court sentenced Sutton within the statutory range, there was no error with the imposition

of a maximum sentence.

{¶75} Sutton’s fifth assignment of error is overruled.

{¶76} Sua sponte, we note the trial court failed to incorporate its consecutive

sentences findings in the sentencing journal entries as required under State v. Bonnell,

,

,

, syllabus. A trial court’s failure to

incorporate statutory findings made under R.C. 2929.14(C)(4) in the sentencing journal

entry after properly making those findings at the sentencing hearing is a “clerical

mistake” that may be corrected by the court through a nunc pro tunc entry “to reflect what

actually occurred in open court.” Id. at ¶ 29. It “does not render the sentence contrary to

law.” Id. We further note that as to CR-14-582703-A the trial court’s January 12, 2015

journal entry titled, “sentencing entry dated 11-20-2014 is corrected” is incomplete as to

Count 1 of the indictment and must be corrected.

{¶77} The judgment of the trial court is affirmed and case remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and SEAN C. GALLAGHER, J., CONCUR