COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60615 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION GEORGE LAMPECK : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 21, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-256,004 JUDGMENT : AFFIRMED IN PART; : VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JESSLYN WILSON, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL MURMAN Attorney at Law 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, George Lampeck, timely appeals his con- viction of two counts of receiving stolen property (R.C. 2913.51) For the reasons set forth below, we affirm the conviction of appellant in part and vacate the conviction of appellant in part. The pertinent facts are as follows: On May 25, 1990, members of the Cleveland Police Department went to the appellant's residence at the YMCA at East 22nd Street and Prospect Avenue in Cleveland, Ohio to execute an arrest war- rant. While in the appellant's room, the officers observed, in plain view, articles identified and reported stolen from a male named Ed Kopp. The Cleveland police obtained a search warrant and executed the search of the appellant's room on the next day, May 26, 1990. The items recovered were the subject of the two- count indictment for receiving stolen property (R.C. 2913.51). Count I provides that on May 25, 1990, the appellant "did re- ceive, retain or dispose of checks the property of Ed Kopp." Count II provides that on May 26, 1990, the appellant "did receive, retain or dispose of checks, calculators, savings books, briefcases and tapes the property of Ed Kopp . . .." The counts of the indictment were considered as felonies of the fourth - 2 - degree since the property involved was an item listed in R.C. 2913.71. The appellant entered a plea of no contest to the indict- ments, and the trial court made a finding of guilty as to each count. The appellant was sentenced to six months for each count, to run con-currently with his sentences in Cases No. 240,204 and 247,946. Appellant now timely appeals, raising two assignments of error for our review. ASSIGNMENT OF ERROR NO. I APPELLANT WAS ERRONEOUSLY SENTENCED ON TWO FELONY COUNTS, WHERE THE CONDUCT INVOLVED IS EVIDENCE OF A SINGLE MISDEMEANOR. Appellant argues that the use of the word "checks" in the language of the counts of the indictment is not sufficient to advise the appellant that the property is an item listed in R.C. 2913.71. Therefore, appellant contends the indictments do not constitute fourth degree felonies, but are misdemeanors of the first degree. This argument is without merit. An indictment need not be in the exact language of the statute defining the offense so long as all the essential ele- ments of the crime are contained in language equivalent to that used in the sta-tute and the accused is advised in the indictment of the nature and cause of the accusation he is expected to meet. State v. Oliver (1972), 32 Ohio St. 2d 109; State v. Reyna (1985- ), 24 Ohio App. 3d 79. - 3 - The receiving stolen property statute (R.C. 2913.51) states that a violation of the statute is a misdemeanor of the first degree, but is a felony of the fourth degree if the property is any of the property listed in R.C. 2913.71. R.C. 2913.71(B) states that a violation of R.C. 2913.51 is a felony of the fourth degree, regardless of the value of the property involved, if the property is ". . . a printed form for a check or other negotiable instrument, which on its face identifies the drawer or maker for whose use it is designed or identifies the account on which it is to be drawn, and which has not been executed by the drawer or maker or on which the amount is blank; . . .." In the present case, we find that the use of the words "checks . . . of Ed Kopp" in the indictment sufficiently advised the appel-lant that the property was ". . . a printed form for a check or other negotiable instrument . . .," identifying the maker of the account as set forth in the language of R.C. 2913.7- 1(B). The word "check" is commonly used to describe a "written order directing a bank to pay money as therein stated." Web- ster's New International Dictionary (1986), p. 381. Furthermore, a review of the record demonstrates that the trial court ex- plained to the appellant that the offense was a felony of the fourth degree, and the appellant stated that he understood the nature of the charges against him. Accordingly, the trial court did not err in considering the counts of the indictment as felo- nies of the fourth degree. - 4 - Assignment of Error No. I is overruled. ASSIGNMENT OF ERROR NO. II APPELLANT WAS DENIED PROTECTION AGAINST DOU- BLE JEOPARDY CONTAINED IN THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND IN SECTION 10, ARTICLE I OF THE OHIO CONSTITU- TION, AS COUNTS ONE AND TWO OF RECEIVING STOLEN PROPERTY SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES. Appellant argues that the two counts of the indictment are allied offenses of similar import pursuant to R.C. 2941.25(A) and, therefore, appellant can only be convicted of one offense. This argument has merit. R.C. 2941.25(A) provides: 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. In the present case, both counts of the indictment involve the same conduct of receiving the identical stolen property. It is undisputed that the two counts are allied offenses of similar import. The trial court erred in finding appellant guilty of both charges and in sentencing appellant on both charges. Accordingly, we modify the judgment by vacating one count of appellant's conviction for receiving stolen property (R.C. 2913.- 51). Assignment of Error II is sustained. - 5 - The appellant's conviction and sentencing for receiving stolen property (R.C. 2913.51) under the first count of the indictment is vacated, and the appellant's conviction and sen- tencing for receiving stolen property (R.C. 2913.51) under the second count of the indictment is affirmed. - 6 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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. SPELLACY, J. BLACKMON, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .