State v. Winters , 2013 Ohio 2722 ( 2013 )

[Cite as State v. Winters, 2013-Ohio-2722.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-120543
C-120544
Plaintiff-Appellee, : TRIAL NOS. B-1000393
B-1203109
vs. :
O P I N I O N.
JASON WINTERS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: June 28, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswall, Jr., for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Presiding Judge.
{¶1} Defendant-appellant Jason Winters was convicted of five counts of
theft, seven counts of forgery, and one count of misuse of credit cards. Winters now
appeals, raising two assignments of error. For the following reasons, we vacate his
sentences in part and remand for resentencing. In all other respects, we affirm the
judgment of the trial court.
Background
{¶2} In a 13-count indictment, the state alleged that Winters repeatedly stole
money from an elderly women for whom he had been providing home care. The
indictment contains several parts: Count 1 addresses the theft of the checks and debit
cards on May 17, 2011, and Count 8 also addresses the theft of personal property on that
date; Counts 2 through 4 address the forgery of three checks, and Count 5 addresses the
theft of money resulting from the forgery of those checks; Count 6 addresses the
unauthorized use of a credit card, and Count 7 addresses the theft of money resulting
from that credit card misuse; and Counts 9 through 12 address the forgery of four
additional checks, and Count 13 addresses the theft of money resulting from the forgery
of those checks.
{¶3} Pursuant to a plea agreement, Winters admitted to violating community
control requirements in an unrelated case and pleaded guilty to counts 1, 2, 5, 6, 7, 8, 9,
and 13. At the sentencing hearing, Winters received a separate sentence for each of
those counts.
Merger
{¶4} In his first assignment of error, Winters argues that the trial court erred
by imposing convictions and consecutive sentences for Counts 1 and 8, and Counts 6
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and 7 under Ohio’s multiple-count statute, R.C. 2941.25. Under R.C. 2941.25, “a
sentence may be imposed for only one of multiple offenses if the record shows that the
state relied upon the same conduct to prove the offenses, and that the offenses were
committed neither separately nor with a separate animus as to each.” State v. Campbell,
2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.).
{¶5} When applying R.C. 2941.25, this court must “consider the statutory
elements of each offense in the context of the defendant’s conduct.” State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 20. In this case, Counts 1 and
8 charged Winters with theft, as defined by R.C. 2913.02(A). The record reflects that on
May 17, 2011, Winters stole the woman’s credit card and checks, and used them at
several banks. Count 1 related to the theft of her checks and credit cards. Count 8 also
alleged theft, but only of general personal property. Since the record indicates that only
checks and credit cards were taken, the two counts can only refer to the same theft.
Thus, Winters committed Counts 1 and 8 together with the same conduct on the same
date.
{¶6} As to his argument regarding Counts 6 and 7, Winters was convicted of
misuse of credit cards, as defined by R.C. 2913.21(B)(2), and another count of theft.
Between October 8, 2011, and February 13, 2012, Winters used the woman’s credit cards
to charge $610.97. Count 6 refers to the misuse of her credit card for that amount, and
Count 7 refers to the same amount as the object of the theft charge. Both counts relate
to the same time frame, and the bill of particulars uses exactly the same language to
describe each offense. Thus, Winters committed Counts 6 and 7 together with the same
conduct on the same dates.
{¶7} We next examine whether the offenses were each committed with a
separate animus. “The Ohio Supreme Court interprets the term ‘animus’ to mean
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‘purpose or, more properly, immediate motive,’ and infers animus from the surrounding
circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting
State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). Although animus is
often difficult to prove directly, “the manner in which a defendant engages in a course of
conduct may indicate distinct purposes.” State v. Whipple, 2012-Ohio-2938, 972 N.E.2d
1141, ¶ 38 (1st Dist.).
{¶8} In this case, the record reflects that Winters’s immediate motive was to
steal from his victim by means of the checks and debit cards he took. When he stole the
checks and credit cards, which were the personal property of the victim, he committed
the offenses alleged in Counts 1 and 8 with the same animus. Likewise, when he
misused the victim’s credit cards, and stole money from the victim as a result of that
misuse, he committed the offenses alleged in Counts 6 and 7 with the same animus.
{¶9} Having determined that the offenses were committed with the same
conduct and not separately, we hold that Counts 1 and 8 should have been merged under
R.C. 2941.25, and that Counts 6 and 7 should have been merged under R.C. 2941.25.
Accordingly, the first assignment of error is sustained.
Sentencing
{¶10} In his second assignment of error, Winters argues that the trial court
erred by imposing a sentence that is not supported by the findings in the record.
Specifically, Winters argues that the trial court failed to consider his remorse in light of
his counsel’s and his own remarks about his remorse during the sentencing hearing.
{¶11} Appellate review of a criminal sentence requires a two-step approach.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. First, the trial
court must comply with all applicable rules and statutes in imposing a sentence that is
not clearly and convincingly contrary to law. Id. The trial court’s decision is then
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reviewed under an abuse-of-discretion standard. Id. Unless something in the record
reflects otherwise, trial courts are presumed to have followed the purposes and
principals of sentencing.
{¶12} In this case, Winters repeatedly stole from an elderly woman for whom
he had been providing home care. He essentially deprived her of her life savings while
she was hospitalized. Further, Winters committed these crimes while on community
control for an unrelated offense. Finally, the court noted that Winters showed a lack of
remorse, despite his later comments, and showed no desire to change his criminal
habits. The fact that the trial court did not believe that Winters was remorseful is not
grounds to overturn his sentence. Therefore, Winters failed to establish that the trial
court’s sentence was unreasonable, arbitrary, or unconscionable. We overrule his
second assignment of error.
Conclusion
{¶13} Having determined that the trial court erred in imposing separate
sentences for Counts 1 and 8, and Counts 6 and 7, we vacate those sentences and
remand this cause for resentencing pursuant to the state’s election. See State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of
the syllabus. In all other respects, we affirm the judgment of the trial court.
Judgment affirmed in part, sentences vacated in part, and cause remanded.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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