State v. Tall

2023 Ohio 1853

• Court: Ohio Court of Appeals
• Decided: June 5, 2023
• Docket: 14-22-26
• Status: Published

Opinion

[Cite as State v. Tall, 2023-Ohio-1853.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-22-26

v.

BOUBACAR TALL, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2018-CR-0041

Judgment Affirmed

Date of Decision: June 5, 2023

APPEARANCES:

Alison Boggs for Appellant

Raymond Kelly Hamilton for Appellee Case No. 15-22-26

ZIMMERMAN, J.

{¶1} Defendant-appellant, Boubacar Tall (“Tall”), appeals the November 2,

2022 judgment entry of sentence of the Union County Court of Common Pleas. We

affirm.

{¶2} On March 1, 2018, the Union County Grand Jury indicted Tall on Count

One of passing bad checks in violation of R.C. 2913.11(B), (F), a fifth-degree

felony; Count Two of grand theft of a motor vehicle in violation of R.C.

2913.02(A)(3), (B)(5), a fourth-degree felony; and Count Three of forgery in

violation of R.C. 2913.31(A)(3), (C)(1)(b)(i), a fourth-degree felony. After he was

apprehended and returned to Union County, Tall appeared for arraignment on July

6, 2022 and entered pleas of not guilty to the counts in the indictment.

{¶3} On September 14, 2022, Tall withdrew his pleas of not guilty and

entered guilty pleas, under a negotiated-plea agreement, to the counts alleged in the

indictment. The trial court accepted Tall’s guilty pleas, found him guilty, and

ordered a pre-sentence investigation.

{¶4} On November 2, 2022, the trial court sentenced Tall to 11 months in

prison on Count One and to 17 months in prison on Counts Two and Three,

respectively. (Doc. No. 26). The trial court ordered Tall to serve the prison terms

consecutively for an aggregate sentence of 45 months in prison.

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{¶5} On December 1, 2022, Tall filed a notice of appeal. He raises one

assignment of error for our review.

Assignment of Error

The Trial Court Erred When it Failed to Merge His Convictions For Passing Bad Checks and Forgery With The Grand Theft of a Motor Vehicle As Allied Offenses of Similar Import.

{¶6} In his sole assignment of error, Tall argues that the trial court erred by

failing to merge his passing-bad-checks, forgery, and grand-theft-of-a-motor-

vehicle convictions. Specifically, Tall contends that his passing-bad-checks,

forgery, and grand-theft-of-a-motor-vehicle convictions are allied offenses of

similar import because “[t]here is no separate animus for each offense, it was

completed in one transaction and there was only one victim.” (Appellant’s Brief at

7-8).

Standard of Review

{¶7} Whether offenses are allied offenses of similar import is a question of

law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12,

2011-Ohio-5733, ¶ 15. “De novo review is independent, without deference to the

lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-

647, ¶ 27.

{¶8} However, a defendant’s failure to preserve the issue of merger at the

time of sentencing, forfeits all but plain error on review. State v. Bailey, ___ Ohio

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St.3d ___, 2022-Ohio-4407, ¶ 7. “Under Crim.R. 52, ‘[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.’” State v. Shockey, 9th Dist. Summit No. 29170, 2019-Ohio-

2417, ¶ 7, quoting Crim.R. 52(B). “Plain error exists only where there is a deviation

from a legal rule, that is obvious, and that affected the appellant’s substantial rights

to the extent that it affected the outcome of the trial.” Id. See also Bailey at ¶ 9

(“The elements of the plain-error doctrine are conjunctive: all three must apply to

justify an appellate court’s intervention.”). “We recognize plain error ‘“with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.”’” State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-

Ohio-3524, ¶ 83, quoting State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

Analysis

R.C. 2941.25, Ohio’s multiple-count statute, states:

(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.

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{¶9} The Supreme Court of Ohio directs us to apply a three-part test to

determine whether a defendant can be convicted of multiple offenses:

As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶ 12, quoting State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, ¶ 12 and Ruff at paragraphs one, two, and three

of the syllabus.

{¶10} “As explained in Ruff, offenses are of dissimilar import ‘when the

defendant’s conduct constitutes offenses involving separate victims or if the harm

that results from each offense is separate and identifiable.’” State v. Bailey, 1st Dist.

Hamilton No. C-140129, 2015-Ohio-2997, ¶ 77, quoting Ruff at paragraph two of

the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of

a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at

trial * * * will reveal whether the offenses have similar import.” Ruff at ¶ 26. “[A]

defendant’s conduct that constitutes two or more offenses against a single victim

can support multiple convictions if the harm that results from each offense is

separate and identifiable from the harm of the other offense.” Id.

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{¶11} “The term ‘animus’ means ‘“purpose or, more properly, immediate

motive.”’” State v. Ramey, 2d Dist. Clark No. 2014-CA-127, 2015-Ohio-5389, ¶

70, quoting State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶

40, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979). “‘Where an individual’s

immediate motive involves the commission of one offense, but in the course of

committing that crime he must * * * commit another, then he may well possess but

a single animus, and in that event may be convicted of only one crime.’” Id., quoting

Logan at 131.

{¶12} “‘Like all mental states, animus is often difficult to prove directly, but

must be inferred from the surrounding circumstances.’” Id. at ¶ 71, quoting Logan

at 131. “‘Thus the manner in which a defendant engages in a course of conduct may

indicate distinct purposes.’” Id., quoting State v. Whipple, 1st Dist. Hamilton No.

C-110184, 2012-Ohio-2938, ¶ 38. “‘Courts should consider what facts appear in

the record that “distinguish the circumstances or draw a line of distinction that

enables a trier of fact to reasonably conclude separate and distinct crimes were

committed.”’” Id., quoting Whipple at ¶ 38, quoting State v. Glenn, 8th Dist.

Cuyahoga No. 94425, 2012-Ohio-1530, ¶ 9.

{¶13} Tall was convicted of passing bad checks under R.C. 2913.11(B),

forgery under R.C. 2913.31(A)(3), and grand theft of a motor vehicle under R.C.

2913.02(A)(3). Passing bad checks is defined by R.C. 2913.11, which provides in

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its relevant part, that “[n]o person, with purpose to defraud, shall issue * * * a check

* * *, knowing that it will be dishonored * * * .” R.C. 2913.11(B). R.C. 2913.31

sets forth the offense of forgery and provides, in its relevant part, that “[n]o person,

with purpose to defraud * * * shall “[u]tter, or possess with purpose to utter, any

writing that the person knows to have been forged.” R.C. 2913.31(A)(3). Finally,

grand theft of a motor vehicle is codified under R.C. 2913.02, which provides, in its

relevant part that, “[n]o person, with purpose to deprive the owner of property * *

*, shall knowingly obtain * * * the property * * * [b]y deception.” R.C.

2913.02(A)(3).

{¶14} Under R.C. Chapter 2913, “‘[d]eception’ means knowingly deceiving

another or causing another to be deceived by any false or misleading representation,

by withholding information, by preventing another from acquiring information, or

by any other conduct, act, or omission that creates, confirms, or perpetuates a false

impression in another, including a false impression as to law, value, state of mind,

or other objective or subjective fact.” R.C. 2913.01(A). Likewise, “‘[d]efraud’

means” under R.C. Chapter 2913 “to knowingly obtain, by deception, some benefit

for oneself or another, or to knowingly cause, by deception, some detriment to

another.” R.C. 2913.01(B). Finally, “[d]eprive means” under R.C. Chapter 2913

to “[a]ccept, use, or appropriate * * * property * * * with purpose not to give proper

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consideration in return for the * * * property * * * and without reasonable

justification or excuse for not giving proper consideration.” R.C. 2913.01(C).

{¶15} “A person acts purposely when it is the person’s specific intention to

cause a certain result, or, when the gist of the offense is a prohibition against conduct

of a certain nature, regardless of what the offender intends to accomplish thereby, it

is the offender’s specific intention to engage in conduct of that nature.” R.C.

2901.22(A). Further, “[a] person acts knowingly, regardless of purpose, when the

person is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B).

{¶16} In this case, since Tall failed to object to the trial court’s failure to

consider whether his passing-bad-checks, forgery, and grand-theft-of-a-motor-

vehicle convictions are allied offenses of similar import, he forfeited all but plain

error on appeal. More importantly, based on our review of the record, we conclude

that Tall waived his allied-offenses argument.

{¶17} Here, the record reflects that Tall “intended to relinquish the

opportunity to argue that” the offenses are allied offenses of similar import by

pleading guilty. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 20.

Specifically, Tall stipulated in his negotiated-plea agreement that the offenses to

which he pleaded guilty are not allied offenses of similar import. That is, Tall

agreed that “each offense to which [he is] pleading guilty was done with a separate

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animus (criminal purpose) or as separate criminal conduct and that the harm that

resulted from each offense is separate and identifiable.” (Doc. No. 23). Further,

Tall agreed to “expressly waive the protection afforded to [him] under R.C. 2941.25

and [to] forfeit any claim that the[] crimes are allied offenses of similar import.”

(Emphasis added.) (Id.). Finally, Tall agreed that he understood “that as a result of

[his] waiver, that the court will impose a sentence on each count without any further

inquiry or determination as to whether the crimes that [he is] pleading guilty to

should merge for sentencing purposes” and “that if any of [his] offenses were to

merge for purposes of sentencing, the possible length of [his] sentence may be

reduced.” (Id.). Importantly, “[i]t is possible for an accused to expressly waive the

protection afforded by R.C. 2941.25, such as by ‘stipulating in the plea agreement

that the offenses were committed with separate animus.’” Rogers at ¶ 20, quoting

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 29.

{¶18} Moreover, even though the parties (nor the trial court) did not

explicitly address Tall’s stipulation during the plea proceedings, the balance of the

trial court’s Crim.R. 11 colloquy demonstrates that Tall’s guilty pleas were

knowing, intelligent, and voluntary. Critically, Tall indicated that he understood

that the sentence imposed by the trial court could be a “prison sentence of three and

a half years” “if you would add all [three sentences] together * * * .” (Sept. 14,

2022 Tr. at 8). Compare State v. Pagan, 10th Dist. Franklin No. 19AP-216, 2019-

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Ohio-4954, ¶ 24 (concluding that Pagan waived any argument that his offenses were

allied offenses of similar import because, in part, “the transcript of the plea colloquy

reflects that Mr. Pagan made his plea knowingly, voluntarily, and intelligently, and

that he understood that the sentence as imposed by the court could exceed even the

18-year upper end of the sentencing range”); State v. Thomas, 2d Dist. Champaign

No. 2015-CA-33, 2016-Ohio-5057, ¶ 14 (concluding that “in light of the trial court’s

advisements at the plea hearing, Thomas was, at the very least, indirectly made

aware of the fact that his offenses would not merge at sentencing”).

{¶19} As a result, since Tall stipulated that the offenses are not allied

offenses of similar import, the trial court was not obligated to determine whether

the offenses merged. See State v. Torres, 8th Dist. Cuyahoga No. 100106, 2014-

Ohio-1622, ¶ 11 (“Because the parties stipulated that the offenses were not allied

offenses, the trial court was not obligated under R.C. 2941.25 to determine whether

the offenses charged in Counts 1 through 38 and Count 60 were allied offenses.”).

Consequently, it was not error, let alone plain error, for the trial court to fail to merge

Tall’s passing-bad-checks, forgery, and grand-theft-of-a-motor-vehicle convictions.

{¶20} Tall’s assignment of error is overruled.

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{¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

MILLER, P.J. and WALDICK, J., concur.

/jlr

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