State v. Baer

• Decision Date: 15 July 1981
• Docket Number: No. 80-417,80-417
• Citation: 423 N.E.2d 432,67 Ohio St.2d 220
• Parties: , 21 O.O.3d 138 The STATE of Ohio, Appellee, v. BAER, Appellant.
• Court: Ohio Supreme Court

Page 220

67 Ohio St.2d 220

423 N.E.2d 432, 21 O.O.3d 138

The STATE of Ohio, Appellee, v. BAER, Appellant.

No. 80-417.

Supreme Court of Ohio.

July 15, 1981.

Syllabus by the Court

Where it is charged in separate counts that the defendant, with purpose to commit theft, knowingly entered, forced an entrance into, tampered with, or inserted any part of an instrument into any coin machine, in violation of R.C. 2911.32, and that upon entry, theft of money or property contained therein was consummated by the defendant, in violation of R.C. 2913.02, the offenses together constitute "allied offenses of similar import" as to which the defendant may be indicted for both offenses but convicted of only one. (R.C. 2941.25(A) applied; State v. Roberts, 62 Ohio St.2d 170, 403 N.E.2d 971, approved and followed; State v. Frazier, 58 Ohio St.2d 253, 389 N.E.2d 1118, distinguished.)

James Michael Baer, defendant-appellant herein, was indicted by the Franklin County Grand Jury as charged in five counts. In essence, insofar as here pertinent, the amended indictment charged as follows:

Counts one and two separately charged "theft," in violation of R.C. 2913.02, from two Pepsi-Cola coin-operated vending machines, separately located in Red Roof Inn.

Counts four and five separately charged "tamper(ing) with" the same coin machines on the same date "with purpose to commit theft," in violation of R.C. 2911.32.

Count three charged that on the same day, defendant, "in violation of section 2923.24, of the Ohio Revised Code, did possess or have under his control a substance, device, instrument, or article, to wit: vending machine keys, with purpose to use them criminally." Keys which fit the locks on the coin machines were found on the defendant. The Pepsi-Cola coin-operated vending machines were opened without any damage to them and the defendant had taken money from the machines.

Defendant entered a plea of "not guilty" to each of the five counts. Following trial, the jury returned verdicts separately finding defendant "guilty" as charged on each of the five counts; and in each of the verdicts returned upon counts one, two, four and five also found the defendant to have been previously convicted of a theft offense. Thus, convictions of the offenses charged in counts one, two, three, four and five, each constituted felonies of the fourth degree.

Judgment of conviction was entered upon each of the five verdicts. The defendant was sentenced to "be imprisoned * * * for a minimum term of two years and maximum of five years as to each of the Five Counts. Counts 1, 2 and 3 to be served concurrently with each other. Counts 4 and 5 (for tampering with purpose to commit theft) to be served concurrently with each other, but consecutive to Counts 1, 2 and 3."

On appeal, the Court of Appeals affirmed each of the five convictions and sentences, upon finding that: "There was sufficiently different conduct of defendant involved in the theft to permit his conviction of both offenses (i.e. (1) tampering with coin machines, with purpose to commit theft and (2) theft) pursuant to R.C. 2945.25(B) as construed by State v. Frazier (1979), 58 Ohio St.2d 253 (389 N.E.2d 1118)."

The cause is now before this court pursuant to allowance of a motion for leave to appeal "on Proposition of Law No. 2 only," which, as set forth in defendant-appellant's second assignment of error before the Court of Appeals, reads: "2) The Defendant was improperly convicted of crimes of similar import. Defendant's alleged act of 'tampering with' the machine and 'theft' therefrom was never shown to involve a separate and distinguishable animus."

Michael Miller, Pros. Atty. and Alan C. Travis, Asst. Pros. Atty., for appellee.

J. Tullis Rogers and Harry Reinhart, Columbus, for appellant.

RUTHERFORD, Justice.

As set forth in appellant's brief before this court, it is appellant's claim that:

"Ohio Revised Code Section 2941.25(A), the multiple count provision, has been violated when a defendant is convicted of two allied offenses of similar import: tampering with coin machines, Revised Code Section 2911.32, and theft, Revised Code Section 2913.02."

R.C. 2911.32, tampering with coin machines, in pertinent part, reads:

"(A) No person, with purpose to commit theft or to defraud, shall knowingly enter, force an entrance into, tamper with, or insert any part of an instrument into any coin machine." (Emphasis added.)

R.C. 2913.02, theft, in pertinent part, reads:

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

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

R.C. 2941.25, multiple counts, effective January 1, 1974, reads:

"(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.

"(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." (Emphasis added.)

Under the provisions of R.C. 2941.25(A) or (B), no error arises as a result of the multiple charges contained in the separate counts of the indictment, and no objection was made to the court's instructions to the jury or to the verdict forms, which permitted the jury to return verdicts finding the defendant "guilty" as charged in each of the five counts of the indictment.

Numerous cases involving R.C. 2941.25 have come before this court since its effective date of January 1, 1974. ¹

In State v. Price (1979), 60 Ohio St.2d 136, at 143, 398 N.E.2d 772, the force used by defendant to engage the victim in sexual conduct was found indistinguishable from the force by which the victim was restrained of her liberty, as required under the rape statute. It was held that:

" * * * the rape and the kidnapping herein were neither committed separately nor with a separate animus as to each. The force by which appellant removed Christa from the car to behind a nearby bush to engage in sexual conduct, as required under the rape statute, is indistinguishable from the force by which appellant restrained Christa of her liberty, as required under the kidnapping statute. In addition, there was no act of asportation distinct from the rape either in time or the function."

Accordingly, under R.C. 2941.25, the rape conviction was affirmed but the kidnapping conviction was reversed.

In State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, guidelines establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each, pursuant to R.C. 2941.25(B), are set forth in the syllabus. ²

In State v. Ware (1980), 63 Ohio St.2d 84, at 86, 406 N.E.2d 1112, it is stated:

"It is clear * * * that the question of separate animus is not the sole focus of our inquiry in cases of this nature."

Kidnapping, in violation of R.C. 2905.01, may be by force or deception. Rape, in violation of R.C. 2907.02, may be by force or threat of force.

At page 87, 406 N.E.2d 1112, upon the facts, it is further stated:

" * * * (W)e conclude that there was an act of asportation by deception which constituted kidnapping, and which was significantly independent from the asportation incidental to the rape itself * * * " (Emphasis added.)

The kidnapping was the result of deception used by defendant, without force, the victim having accepted appellant's invitation to accompany him to his home to permit her to use the phone at his residence; to which they walked part way and hitchhiked a ride part way. After they arrived, appellant laughed and stated that he did not have a telephone and began for the first time making physical advances toward the victim, following which by force he carried the victim to a bedroom and by force committed rape. Convictions of both kidnapping, by deception, and rape, by force, were affirmed; the two crimes being found to have been committed separately, kidnapping by deception and rape by force.

In State v. Roberts (1980), 62 Ohio St.2d 170, 403 N.E.2d 971, the syllabus reads:

"Where a defendant is charged with the possession for sale of a narcotic drug in violation of R.C. 3719.20(A), and with the sale of a narcotic drug in violation of R.C. 3719.20(B), and the facts demonstrate that both charges are based upon a single sale and involve the same parties and the same type and quantity of drugs, and it is not proven that the defendant possessed a quantity of any type of narcotic drug in excess of the amount sold, the defendant may be indicted for both offenses but may be convicted of only one. R.C. 2941.25(A) applied." (Emphasis added.)

In Maumee v. Geiger (1976), 45 Ohio St.2d 238, 244, 344 N.E.2d 133, the holding is that: "Although receiving is technically not an included offense of theft, it is, under R.C. 2941.25, 'an allied offense of similar import.' An accused may be tried for both but may be convicted and sentenced for only one. The choice is given to the prosecution to pursue one offense or the other, and it is plainly the intent of the General Assembly that the election may be of either offense." See, also, State v. Osborne (1976), 49 Ohio St.2d 135, 144, 359 N.E.2d 78, where it is stated:

"The prosecution in this instance was justified in submitting both premeditated murder and felony murder counts to the jury. The statute prohibits a conviction of both, not the submission to the jury of both. See Maumee v. Geiger, supra.

"Although the jury did find appellant guilty on both counts, the trial court set aside one of the aggravated murder counts and sentenced appellant on only the one count, thus complying...