[Cite as State v. Lewis,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, J. Plaintiff-Appellee Hon. Sheila G. Farmer, P. J. Hon. William B. Hoffman, J. -vs- Case No. 15 CA 106 CHRISTOPHER LEWIS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 15 CR 619

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: September 26, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE RANDALL E. FRY PROSECUTING ATTORNEY 10 West Newson Place DANIEL M. ROGERS Mansfield, Ohio 44902 ASSISTANT PROSECUTOR 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 15 CA 106 2

Wise, J.

{¶1} Defendant-Appellant Christopher Lewis appeals from his convictions, in the

Court of Common Pleas, Richland County, on multiple felony counts, including

aggravated robbery and kidnapping. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows:

{¶2} On April 29, 2015, at about 5:00 AM, appellant was driven by an accomplice

to a residence in Bellville, Ohio. Using the ruse of needing water for the car’s radiator,

appellant and his accomplice forcibly entered the home and proceeded to repeatedly

assault the owner, 57-year-old Richard Pritchard, restrain him with duct tape, and steal

a number of items from the residence, including firearms, ammunition, antique coins, two

televisions, and a credit card. Pritchard initially tried to defend himself and his home by

reaching for his loaded pistol, but appellant wrested it from his control. Appellant further

repeatedly kicked at appellant’s German Shepherd, Dusty, when she tried to defend

Pritchard. Appellant and his accomplice eventually departed with the stolen items,

leaving Pritchard on the couch, bound and blindfolded with duct tape. Fortunately,

Pritchard’s friend Tom Schwartz discovered him at about 7:15 AM.

{¶3} On August 11, 2015, the Richland County Grand Jury indicted appellant on

twenty-one criminal counts based on the aforesaid events. Most of the counts utilized

“aiding and abetting” language.

{¶4} Count 1 of said indictment charged appellant with felonious assault, a

second-degree felony (R.C. 2903.11(A)(1)). Count 2 charged appellant with aggravated

burglary, a first-degree felony (R.C. 2911.11(A)(1)). Count 3 charged appellant with

aggravated robbery, a first-degree felony (R.C. 2911.01(A)(1)). Count 4 charged Richland County, Case No. 15 CA 106 3

appellant with kidnapping, a first-degree felony (R.C. 2905.01(A)(2)). Counts 5 through

18 each charged appellant with grand theft, third-degree felonies (R.C. 2913.02(A)(1)

and (B)(4)). Counts 19 and 20 both charged appellant with theft, each a fifth-degree

felony (R.C. 2913.02(A)(1)). Count 21 charged appellant with illegal possession of drug

abuse instruments, a second-degree misdemeanor (R.C. 2925.12(A)).

{¶5} In addition, Counts 1-4 all included firearm specifications pursuant to R.C.

2941.145.

{¶6} Appellant was arraigned on August 18, 2015, at which time he pled not

guilty to all counts and specifications.

{¶7} Following at least two continuances at the request of appellant, the matter

came on for a jury trial on October 29, 2015. After the State presented its case, appellant

presented testimony from himself and one other defense witness.

{¶8} On November 3, 2015, the jury found appellant guilty on all counts and

specifications.

{¶9} On November 10, 2015, following a separate sentencing hearing, the trial

court sentenced appellant to prison terms of five years on Count 1 (felonious assault),

ten years on Count 2 (aggravated burglary), nine years on Count 3 (aggravated robbery),

nine years on Count 4 (kidnapping), three years on merged Count 5 (grand theft, with

Count 5 merged with the remaining counts of grand theft on 6 through 16), six months

each on Counts 19 and 20 (theft, felonies of the fifth degree), one month on Count 21

(possession of drug abuse instruments), and three years on the firearm specification

attached to Counts 1 through 4. Counts 17 and 18 were designated “not tried.” The court

ordered the sentences on Counts 1 and 2 and the combined firearm specification would Richland County, Case No. 15 CA 106 4

be served consecutively to each other and concurrently with the sentences on the

remaining counts, for a total prison term of eighteen years. The court also imposed five

years of mandatory post-release control.

{¶10} On November 13, 2015, the trial court issued an order granting appellant

149 days of jail time credit.

{¶11} On December 8, 2015, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶12} “I. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT

SEPARATELY FOR ALLIED OFFENSES OF SIMILAR IMPORT.

{¶13} “II. THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF A

WITNESS OVER THE OBJECTION OF THE APPELLANT'S COUNSEL.”

I.

{¶14} In his First Assignment of Error, appellant argues, based on a theory of

allied offenses of similar import, that the trial court erred in not merging all of his

sentences into one. We agree in part and disagree in part.

{¶15} R.C. 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson,

2nd Dist. Montgomery No. 24430, 2012–Ohio–2335, ¶ 133, citing State v. Johnson,

, 2010–Ohio–6314, ¶ 45. Appellate review of an allied offense question

is de novo. State v. Williams,

, 2012–Ohio–5699, ¶ 12.

{¶16} R.C. 2941.25 states as follows: Richland County, Case No. 15 CA 106 5

{¶17} “(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.

{¶18} “(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.”

{¶19} For approximately the first decade of this century, law interpreting R.C.

2941.25 was based on State v. Rance,

, 1999–Ohio–291, wherein

the Ohio Supreme Court had held that offenses are of similar import if the offenses

“correspond to such a degree that the commission of one crime will result in the

commission of the other.”

The Rance court further held that courts should compare

the statutory elements in the abstract.

{¶20} In 2010, the Ohio Supreme Court, in State v.

specifically

overruled the 1999 Rance decision. The Court held: “When 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.”

at the syllabus.

{¶21} Recently, however, the Ohio Supreme Court indicated that “more recent

decisions of this court have rendered the analysis of the Johnson lead opinion largely

obsolete.” State v. Earley,

,

, ¶ 11. We now

apply a three-part test under R.C. 2941.25 to determine whether a defendant can be

convicted of multiple offenses: “(1) Were the offenses dissimilar in import or significance? Richland County, Case No. 15 CA 106 6

(2) Were they committed separately? and (3) Were they committed with separate animus

or motivation? An affirmative answer to any of the above will permit separate convictions.

The conduct, the animus, and the import must all be considered.” Id. at ¶ 12, citing State

v. Ruff,

, 2015–Ohio–995, ¶ 31. We also note in Ruff, the Court further

developed the analytical framework for courts to apply regarding the concept of “import,”

holding in part as follows: “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.” Ruff, at paragraph two of the syllabus.

{¶22} We finally note the Supreme Court of Ohio has also stated that “[t]he

imposition of concurrent sentences is not the equivalent of merging allied offenses.”

State v. Damron,

, 2011–Ohio–2268, ¶ 17.

{¶23} We thus proceed to an allied offense analysis of the offenses at issue in the

case sub judice.1

Theft and Grand Theft with Aggravated Robbery / Aggravated Burglary

{¶24} As noted in our earlier recitations, the trial court merged the counts of grand

theft together (Counts 5 through 16), while the two F-5 theft counts (Counts 19 and 20)

were made concurrent. Appellant presently urges that these theft and grand theft counts

should additionally have been merged with his aggravated robbery and/or aggravated

burglary counts.

1 We will herein direct our analysis to the points specifically raised in appellant’s brief. See State v. Trammell, 5th Dist. Stark No. 2015 CA 00151,

, citing Sisson v. Ohio Department of Human Services, 9th Dist. Medina No. 2949–M,

. Richland County, Case No. 15 CA 106 7

{¶25} In regard to aggravated robbery, we note appellant was convicted of

violating R.C. 2911.01(A)(1), which states in pertinent part that “[n]o person, in

attempting or committing a theft offense or in fleeing immediately after the attempt or

offense, shall *** [h]ave a deadly weapon on or about the offender's person or under the

offender's control. * * *” Appellant's theft convictions were all based on R.C.

2913.02(A)(1), which states that “[n]o person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or

services * * * [w]ithout the consent of the owner or person authorized to give consent.”

{¶26} We have previously held, under a Johnson analysis, that a sentencing court

should have merged a defendant’s robbery and theft convictions, where both offenses

stemmed from appellant's shoplifting of the same items. See State v. Jones, 5th Dist.

Licking No. 10 CA 50,

. We find no grounds to herein deviate from

such rationale, even under a Ruff analysis. For example, in State v. Skapik, 2nd Dist.

Champaign No. 2015-CA-5,

, a defendant had stolen several items from

a law enforcement officer’s personal vehicle. The Second District Court held: “In our

view, this conduct constituted a single offense committed with a single animus resulting

in a single harm against a single victim. This is not a case involving multiple theft offenses

committed separately. Nor does it involve a single act of theft committed against multiple

victims. Consistent with Ruff, supra, we conclude that Skapik may be convicted and

sentenced for only one theft offense in connection with the items he stole from the deputy

sheriff's vehicle.” Id. at ¶ 13.

{¶27} Thus, we presently find Ruff does not require that we herein treat the theft

of separate items from the same situs as separate and identifiable offenses, and under Richland County, Case No. 15 CA 106 8

the circumstances of the case sub judice, the merged grand theft offenses should have

again been merged with the count of aggravated robbery occurring during the home

invasion, even assuming arguendo that appellant’s original primary goal was to just steal

drugs from Pritchard. In so holding, we additionally conclude the two F-5 theft counts

(Counts 19 and 20) should likewise be part of said merger.

{¶28} However, we reach a different conclusion in regard to aggravated burglary,

in light of the recent case of State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-

1543. In that case, the Eighth District recognized that “*** it is the intent to commit any

criminal offense while trespassing that constitutes the commission of the burglary crime”

and that “*** no criminal offense actually needs to be committed to support the burglary

charge.” Id. at ¶ 5 (internal citations omitted). The court then determined, citing a Fifth

District opinion: “Even if the criminal offense is actually committed, the burglary was

already completed and the subsequent crimes were then committed with separate

conduct.” Id., citing State v. Huhn, 5th Dist. Perry No. 15–CA–00006, 2015–Ohio–4929,

¶ 22. Accordingly, we find no merit in the case sub judice in appellant’s argument that

the merged theft offenses should have been merged with the count of aggravated

burglary.

Aggravated Robbery with Aggravated Burglary

{¶29} Appellant next urges that his aggravated robbery and aggravated burglary

counts should have been merged.

{¶30} We have recognized that “[a] citizen has an assurance of personal security

in one's home, an assurance that has become part of our constitutional tradition. ***

Thus, the aggravated burglary statute recognizes that an armed robbery occurring within Richland County, Case No. 15 CA 106 9

the sanctity of one's home deserves to be treated more severely than a robbery that

occurs on a street corner.” State v. Howard, 5th Dist. Stark No. 2012CA00061, 2013-

Ohio-2884, ¶ 58, in part citing Minnesota v. Carter,

,

,

(1978). We went on to determine in Howard that the defendant’s act of

entering the basement of an apartment was separate and distinct from the subsequent

aggravated robbery that took place inside, explaining that “[t]he crime of aggravated

burglary was completed when the perpetrators broke the window and entered into the

basement of the residence with purpose to commit a theft offense.” Id. at ¶ 60.

{¶31} Upon review, we find our reasoning on this point in Howard has since been

fully buttressed by the Ohio Supreme Court’s subsequent holding in Ruff. Thus, we hold

that the harm that results from an aggravated burglary is indeed “separate and

identifiable” in relation to an aggravated robbery that follows inside a victim’s home.

Kidnapping with Aggravated Robbery / Aggravated Burglary

{¶32} Appellant next maintains that his kidnapping count should have been

merged with his aggravated robbery and/or aggravated burglary counts.

{¶33} Appellant was convicted of kidnapping under R.C. 2905.01(A)(2), which

states that "[n]o person, by force, threat, or deception, shall *** restrain the liberty of

(another) person *** to facilitate the commission of any felony or flight thereafter."

{¶34} Upon review, we concur with the State’s assessment in response that

appellant completed the offense of kidnapping when he and his accomplice bound

Pritchard's hands, feet, and eyes with duct tape for the purpose of stealing from him. See

Tr. at 148, 149, 308-310. Thus, we find appellant's restraint of the victim via binding was Richland County, Case No. 15 CA 106 10

an act separate and distinct from the acts needed to complete the offenses of aggravated

robbery and aggravated burglary, and merger is not warranted in this regard.

Felonious Assault with Aggravated Robbery / Aggravated Burglary

{¶35} Appellant lastly contends his felonious assault conviction should have been

merged with his aggravated robbery and/or aggravated burglary counts.

{¶36} In regard to aggravated robbery, we again note that appellant in this

instance was convicted of violating R.C. 2911.01(A)(1), which states that “[n]o person,

in attempting or committing a theft offense or in fleeing immediately after the attempt or

offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under

the offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it.” Clearly, a person could conceivably violate R.C.

2911.01(A)(1) without ever actually utilizing or engaging his or her deadly weapon. In the

present case, appellant did in fact put the gun to the victim’s head, and further beat him

repeatedly with his fists. But these additional acts went beyond the act of aggravated

robbery, as that offense occurred as soon as appellant took control of the gun from

appellant as a means to steal from him. As such, we find a separate and identifiable

harm to the victim from the felonious assault versus the aggravated robbery. Ruff, supra.

{¶37} In regard to aggravated burglary, a similar result is warranted, as appellant

committed the crime of aggravated burglary the instant he and his accomplice forced

their way into Pritchard’s home, and the subsequent violent acts against Pritchard were

a separate form of harm. Therefore, merger would have been improper in this context. Richland County, Case No. 15 CA 106 11

Conclusion

{¶38} Appellant's First Assignment of Error is therefore overruled in part and

sustained in part, to the extent that all of the grand theft and theft counts should have

been merged for sentencing, and that said grand theft and theft counts should further

have been merged with the count of aggravated robbery.

II.

{¶39} In his Second Assignment of Error, appellant contends the trial court erred

in admitting certain testimony from a second Ohio BCI scientist. We disagree.

{¶40} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987),

,

. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

Our task is to look at the totality of the circumstances in the case sub judice, and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman, 5th Dist. Stark No.

1999CA00027,

.

{¶41} In Ohio, opinion and expert testimony is generally governed by Article VII of

the Rules of Evidence. Furthermore, Crim.R. 16(K) states as follows: “An expert witness

for either side shall prepare a written report summarizing the expert witness's testimony,

findings, analysis, conclusions, or opinion, and shall include a summary of the expert's

qualifications. The written report and summary of qualifications shall be subject to

disclosure under this rule no later than twenty-one days prior to trial, which period may

be modified by the court for good cause shown, which does not prejudice any other party. Richland County, Case No. 15 CA 106 12

Failure to disclose the written report to opposing counsel shall preclude the expert's

testimony at trial.” (Emphasis added).

{¶42} In the case sub judice, the State presented evidence in the form of DNA

analysis of duct tape pieces and a plastic container cap secured at the crime scene. In

this vein, the State first called Stacy Violi, a forensic scientist for BCI, who was qualified

as an expert witness without objection. Tr. at 196. Violi testified that she was the analyst

assigned to the case at hand, and that she had “interpreted DNA profiles and wrote

reports.” Tr. at 200. At the end of the first day of the trial, after several more witnesses

had testified, the trial court conducted a sidebar with the attorneys, outside the jurors’

presence. Tr. at 258-262. At that time, the trial court expressed some reservations on

the issue of the proof of chain of custody, stating as follows to the prosecutor: “It seems

to me that part of the chain of custody is whoever made the swab. So that’s what I’m

telling you. You can either come up with some law that convinces me to the contrary, or

that person is going to have to be there if [defense counsel] is insisting on an intact chain

of custody.” Tr. at 260.

{¶43} Therefore, the next day, the State called Brittany Farinochi, also a BCI

forensic scientist, over appellant’s objections. Farinochi, who was not on the State’s

witness list, testified inter alia that she had performed the DNA testing prior to passing

the items on to Ms. Violi. See Tr. at 292-296.

{¶44} As an initial matter, we note appellant’s objection to Farinochi was

technically based on her absence from the witness list, not that Crim.R. 16(K) was at

issue. See Tr. at 290. Nonetheless, we recognize that in demonstrating a chain of

custody, “[t]he proponent of the evidence need not offer conclusive evidence as a Richland County, Case No. 15 CA 106 13

foundation but must offer sufficient evidence to allow the question as to authenticity or

genuineness to reach the jury.” State v. Harold, 11th Dist. Portage No. 2014-P-0012,

, ¶ 37, citing State v. Ewing, 9th Dist. Lorain No. 97CA006944,

. Accordingly, upon review, we find the State had no reasonable cause to believe

prior to trial that Farinochi's testimony would be necessary to establish chain of custody.

Furthermore, we find appellant suffered no prejudice as a result of her testimony, as the

State would have sufficiently established its chain of custody regardless of her testimony,

and any issues with chain of custody would have only impacted the weight of the DNA

evidence, not its admissibility. See Harold, supra; State v. Semedo, 5th Dist. Stark No.

2006 CA 00108,

.

{¶45} Upon review, we conclude the allowance of Farinochi’s testimony absent a

timely Crim.R. 16(K) formal report was harmless beyond a reasonable doubt, and the

trial court did not abuse its discretion in permitting her testimony.

{¶46} Appellant's Second Assignment of Error is therefore overruled. Richland County, Case No. 15 CA 106 14

{¶47} For the foregoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is hereby affirmed in part, reversed in part, and remanded for

purposes of merger for sentencing.

By: Wise, J.

Farmer, P. J., concurs.

Hoffman, J., concurs separately.

JWW/d 0825 Richland County, Case No. 15 CA 106 15

Hoffman, J., concurring

{¶48} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error.

{¶49} I further concur in the majority’s disposition of Appellant’s second

assignment of error.

{¶50} I find the majority’s citation to State v.

although accurate,

unnecessary and potentially misleading. Sage involved the admission or exclusion of

relevant evidence. There is no dispute in the case sub judice Farinochi’s testimony was

relevant to establishing the chain of custody.

{¶51} Although Appellant has argued in his brief Farinochi’s testimony was

erroneously admitted under Crim.R. 16(K), such argument is misplaced. The record

demonstrates Appellant specifically agreed to Farinochi’s qualification as an expert and

Farinochi did not prepare a report. Tr. at 292. Farinochi was only involved in the

collection of the DNA sample, not its testing or analysis. As noted by the majority,

Appellant’s only stated objection was Farinochi was not on the state’s witness list. See

Crim.R. 16(I).

{¶52} The appropriate sanction to be imposed for a discovery violation is left to

the discretion of the trial court. See Crim.R. 16(L). State v. Opp, 3rd Dist. 13-13-33, 2014-

Ohio-1138.

{¶53} Given it was the trial court who raised, sua sponte, its concern over the

chain of custody, I agree with the majority the trial court did not abuse its discretion in

allowing Farinochi to testify. I note Appellant did not seek a continuance and Farinochi’s

appearance as a witness was not a surprise since the trial court raised the issue the day Richland County, Case No. 15 CA 106 16

before she appeared to testify and Appellant was aware the testimony concerned the

collection of the DNA swab.

{¶54} Having so found, I find any analysis of prejudice unnecessary.2

2I find the majority’s application of a “harmless beyond a reasonable doubt” analysis overly restrictive. Such standard clearly applies to analysis of the effect of constitutional errors and, pursuant to State v. Morris, (2014)

,

, the erroneous admission of evidence. I would not apply it to violations of non-constitutional procedural errors.