COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71774 STATE OF OHIO : : Plaintiff-appellee : : -vs- : JOURNAL ENTRY AND : OPINION MICHAEL HARVEY : Defendant-appellant : DATE OF ANNOUNCEMENT OCTOBER 30, 1997 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-339453. JUDGMENT Reversed and remanded for re-sentencing. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs Jones, Esq. Jean M. Gallagher, Esq. Cuyahoga County Prosecutor Assistant Public Defender By: Erika Ritt, Esq. 1200 West Third Street, N.W. Assistant Prosecuting Attorney 100 Lakeside Place The Justice Center 1200 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113-1569 -2- ROCCO, J.: Defendant-appellant Michael T. Harvey appeals from his convictions after a jury trial for aggravated robbery with a firearm and a felony specification and theft with a violence specification. Appellant contends under the facts of this case these constitute allied offenses, therefore, it was improper for him to be convicted and sentenced for both crimes. This court agrees and accordingly reverses appellant's conviction for theft and remands this case for resentencing. Appellant's conviction stems from a series of incidents which occurred in one area of the city of Maple Heights in April and May 1996. On the night of April 2, 1996 Debra and Andrew Bremer were robbed at gunpoint after exiting a tavern on Broadway Avenue. Ms. Bremer's purse was taken during the robbery. The following morning, Maple Heights police officers received a call regarding a suspicious individual on a residential street near the tavern. Once there, the officers met a man, later identified as appellant, who explained he was going in the backyards on the street in order to locate his lost dog. Soon thereafter, Mrs. Bremer's purse was found in a yard on that street. On April 5, 1996 appellant was speaking with the detective investigating the robbery and volunteered the statement that while looking for his dog, he saw a purse on the ground; appellant further stated that he looked at the purse and may have touched it. -3- On May 8, 1996 a pizza shop received a call for a pizza to be delivered to Raymond Avenue, which was the street upon which appellant lived. When Michael Orlowski1 arrived at the address to deliver the pizza, he discovered it was a vacant house. At that point, Orlowski was robbed by a man holding a gun. The man escaped in Orlowski's automobile. On May 9, 1996, a man, later identified by several witnesses as appellant, entered the Gale's Garden Center store located on Lee Road, only a short distance from Raymond Avenue. Appellant apparently shopped for some time, then approached the cashier with numerous items. However, when the cashier requested payment for the merchandise, appellant produced a gun. Appellant placed the weapon against Fred Tonski, the store manager, and told the cashier to place money from the cash register into a bag. Appellant then fled the store on a bicycle. Shortly thereafter, appellant was apprehended by police officers after unsuccessfully hiding in a garage on a nearby residential street. Subsequently, appellant was indicted on seven counts as follows: 1) aggravated robbery of Fred Tonski, R.C 2911.01; 2) aggravated robbery of Debra Bremer, R.C 2911.01; 3) aggravated robbery of Andrew Bremer, R.C. 2911.01; 4) aggravated robbery of Michael Orlawski,2 R.C 2911.01; 5) theft from Gale's Garden Center of property of a value of over $300 but less than $5,000, R.C 1Although spelled, Orlawski in the indictment against appellant, at trial the victim testified his name was spelled Orlowski. 2See footnote 1. -4- 2913.02; 6) theft from Papa John's Pizza of property of a value of over $300 but less than $5,000; and 7) felonious assault, R.C 2903.11. The first four counts of the indictment contained a firearm specification, a violence specification, and an aggravated felony specification for a previous conviction for attempted robbery. Counts five and six contained two violence specifications; count seven contained a violence and an aggravated felony specification. Appellant's case proceeded to a jury trial. With this court's permissionthe parties to this appeal have stipulated to supplement the record to reflect that prior to trial appellant, through counsel, requested the specifications which concerned appellant's prior conviction be tried to the judge. After the presentation of the state's case-in-chief, the trial court dismissed count seven of the indictment. Ultimately, the jury found appellant guilty of only counts one and five, viz.,aggravated robbery of Fred Tonski with a firearm and a violence specification, and theft from Gale's Garden Center with a violence specification. The jury found appellant not guilty of the remaining charges. Thereafter, the trial judge was presented with evidence to demonstrate appellant's prior conviction. At the sentencing hearing, appellant requested the trial court to vacate his convictionfor theft pursuant to R.C 2941.25 and to sentence him on only the conviction for aggravated robbery. The trial court rejected appellant's request. Appellant was then sentenced on count -5- one to a term of three years actual incarceration for the firearm specification to be served prior to and consecutive with a term of fifteen to twenty-five years. On count five, appellant was sentenced to a term of three to five years to be served consecutively with the sentence imposed on count one. Appellant filed a timely appeal of his conviction. Originally, he presented the following three assignments of error: I. MR. HARVEY'S RIGHTS TO DUE PROCESS, INCLUDING A JURY TRIAL, WERE DENIED WHEN THERE WAS NO JURY VERDICT ON THE EXISTENCE OF THE SPECIFICATION TO SUPPORT A TERM OF ACTUAL INCARCERATION (R.C. 2941.142), NO REQUEST THAT THE COURT DETERMINE THE ISSUE, NO WAIVER OF THE RIGHT TO A JURY AND NO EVIDENCE OF THE PRIOR CONVICTION. II. WHEN MR. HARVEY WAS CONVICTED OF VIOLATIONS OF R.C 2911.01 AND R.C 2913.02, THE CONVICTION FOR A VIOLATION OF R.C 2913.02 IS IN VIOLATION OF R.C 2941.25 (ALLIED OFFENSES) AND A DENIAL OF MR. HARVEY'S RIGHTS TO PROTECTION FROM DOUBLE JEOPARDY GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. MR. HARVEY'S RIGHTS UNDER ART. I, SECT. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL ON FELONY THEFT WHEN THERE WAS INSUFFICIENT EVIDENCE THAT THE VALUE OF THE PROPERTY OR SERVICES TAKEN WAS AT LEAST THREE HUNDRED DOLLARS. As a result of the stipulation between the parties to supplement the record on appeal pursuant to App.R. 9(E), appellant has withdrawn his first assignment of error. Proceeding to appellant's second assignment of error, it must first be noted that in its appellate brief, the state concedes that -6- upon the facts of this case, appellant was improperly convicted of both aggravated robbery and theft. R.C 2941.25 provides: (A) When the same conduct by defendant can be construed to constitutetwo 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) When 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. Regarding this statute, the Ohio Supreme court has stated the following as the applicable analysis to be made upon review: Under R.C 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship [1988], 38 Ohio St.3d 116, 117, 526 N.E. 2d 816, 817, approved and followed.) Newark v. Vazirani (1990), 48 Ohio St.3d 81, syllabus. (Emphasis in original.) A review of the facts in this case reveals both tiers of the test are met. The elements of the offense of theft correspond with -7- those of aggravated robbery. State v. Parson (1983), 6 Ohio St.3d 442 at 446. Moreover, the crimes were not committed with a separate animus, but rather were part of the same plan, viz., to rob the store. See, e.g., State v. McGhee (1987), 37 Ohio App.3d 54; State v. Lang (1995), 102 Ohio App.3d 243; State v. Mergy (1995), 105 Ohio App.3d 646. The trial court stated as the basis for rejecting appellant's request made pursuant to R.C 2945.21 that there's (sic) two different victims here, viz., Fred Tonski and Gale's Garden Center. However, in considering a similar factual situation, the court in State v. Coffman (1984), 16 Ohio App.3d 200, stated as follows: *** Although money was taken from two individuals and from two separate purses, the thefts, in reality, constituted a single act with a singular intent because the monies were taken at the same time and from the same location in a continuous act. State v. Woods (1982), 8 Ohio App. 3d 56, at 60. *** The crime was stealing property from an unattended car. Multiple ownership of the property does not provide the basis for more than one animus, nor does the taking of multiple items of property. See State v. Fisher (1977), 52 Ohio App.2d 133, paragraph one of the syllabus. Id. at 203. Since the crimes for which appellant was convicted met the test set forth in Newark v. Vazirani, supra, pursuant to R.C 2945.21(A), appellant could be convicted of and sentenced for only one of them. See, e.g., State v. Kent (1980), 68 Ohio App.2d 151; State v. Fields (1994), 97 Ohio App.3d 337; cf., State v. Hendrix (June 13, 1991), Cuyahoga App. No. 58519, unreported. Therefore, the trial court erred in rejecting appellant's request to set aside the theft -8- conviction. State v. Lang, supra; State v. Mergy, supra; State v. Franklin(Dec. 16, 1982), Cuyahoga App. No. 44532, unreported; State v. Law (April 4, 1991), Cuyahoga App. No. 58326, unreported. Accordingly, appellant's second assignment of error is sustained. The disposition of appellant's second assignment of error renders his third assignment of error moot. App.R. 12(A)(1)(c). Appellant's conviction for violation of R.C 2913.02, theft, is vacated. This case is remanded for resentencing in accordance with this opinion. -9- It is ordered that appellant recover of appellee 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, P.J., AND ANN DYKE, J., CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supportingbrief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .