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Appellate panel remands safecracking case for resentencing
ANNIE YAMSON
Special to the Legal News
Published: May 24, 2013
In a recent decision, the 12th District Court of Appeals ruled to remand a Clermont County Court of Common Pleas case for resentencing based on a defendant’s claim that his charges should have been merged.
Walter Richardson’s conviction stemmed from events that took place on Jan. 31, 2011, when Jermaine Carlock arrived at his home after work and found two intruders inside. One of the men, Eric Lewis, was in the kitchen.
Carlock testified that he heard another man in an upstairs bedroom making a lot of noise and “ransacking the place.”
Lewis fled from the scene in a car and Carlock got in his vehicle and followed while he called police. Ultimately, Lewis crashed his vehicle and was arrested.
According to case summary, police found a safe that belonged to Carlock in the backseat of Lewis’ car. The safe was unopened and there were no signs of attempts to force it open.
Police investigated the robbery at Carlock’s home and found Carlock’s dogs had been beaten, the house ransacked and other property stolen. However, they did not find the second suspect.
Richardson was arrested after a police investigation determined he had played a role in the burglary of Carlock’s home as well as several other burglaries.
Footprints in the snow outside of Carlock’s property matched a pair of Richardson’s shoes.
On Feb. 9, 2011, Richardson was indicted on three counts of burglary, one count of theft, two counts of grand theft and one count of safecracking.
He was found guilty of all but one count of burglary and sentenced to a prison term of 16 years and nine months.
Richardson appealed and argued that the trial court erred when it refused to merge his convictions for grand theft and safecracking. He claimed that the two were allied offenses.
The Ohio Revised code prohibits the imposition of multiple punishments for the same criminal conduct.
It states, “Where the same conduct by the 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.”
Presiding Judge Robert Hendrickson wrote on behalf of the three-judge appellate panel that the court was required to determined whether it was possible to commit both offenses with the same conduct.
“It is not necessary that the commission of one offense will always result in the commission of the other,” wrote Hendrickson. “Rather, the question is whether it is possible for both offenses to be committed by the same conduct.”
The appellate panel found that it was possible to commit safecracking and grand theft with the same conduct.
Hendrickson stated that a defendant who tampers with a safe also exerts control over the safe’s contents with the purpose to deprive the owner of his or her property.
“We also find that appellant committed these offenses with the same conduct and with the same animus,” wrote Hendrickson. “It is apparent from the facts alleged in the indictment and the bill of particulars that appellant did not commit these offenses separately or with a separate state of mind.”
The appellate panel determined that the underlying conduct for both offenses was based on the single act of removing the safe from the home.
They held that, had Richardson opened the safe, the offenses in that case would not merge.
However, “there was no evidence that the appellant had particular knowledge of valuables inside the safe” and police found no signs of forced entry.
Richardson also argued that, because there was no evidence that he attempted to open the safe, his conviction for safecracking was against the manifest weight of the evidence.
“We find that appellant’s conduct in removing the safe from Carlock’s home to Lewis’ car constitutes ‘tampering’ for purposes of safecracking,” Hendrickson stated.
The panel held that the Ohio Revised Code expressly allows for “tampering” to constitute safecracking.
Therefore, the court of appeals affirmed the judgment of the trial court regarding the sufficiency of the evidence for Richardson’s safecracking conviction.
However, the case was remanded for resentencing in order for the state to decide which allied offense to pursue and to allow for the merger of the offenses for sentencing.
Judges Stephen Powell and Robin Piper concurred.
The case is cited State v. Richardson, 2013-Ohio-1953.
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