Allied Offenses of Similar Import


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Last updated 7/12/2016
For additional cases on whether or not particular offenses merge, see text on individual offenses.
R.C. 2941.25 -- Multiple counts.
In re A.G., 2016-Ohio-3306. Ohio Supreme Court rules that juveniles are entitled to the same constitutional double-jeopardy protections as adults, and juvenile courts must conduct the same double-jeopardy analysis in delinquency proceedings as others courts apply in adult criminal proceedings. The allied offense statute, R.C. 2941.25, which codifies double jeopardy protections, therefore applies in delinquency proceedings in juvenile court.
State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603—A conviction under R.C. 2923.32(A)(1), the Racketeer Influenced and Corrupt Organizations Act (RICO) does not merge with its predicate offenses for purposes of sentencing.
State v. Stevens, 139 Ohio St.3d 247, 2014-Ohio-1932, 11 N.E.3d 252--In order to obtain a conviction for engaging in a pattern of corrupt activity, R.C. 2923.31(I)(2)(c) and 2923.32(A) must be construed so that the stated threshold amount applies to each individual, and not to the enterprise as a whole.
State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314 – Syllabus: “When determining whether two offenses are allied offenses of similar import subject to merger pursuant to R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, overruled.)” Methodology for analysis set forth at ¶46-52. Court concludes that in this case the offenses of child endangerment and felony murder merged. ¶56: “We decline the invitation of the state to parse Johnson’s conduct into a blow-by-blow in order to sustain multiple convictions for the second beating.”
State v. Ruff, ___ Ohio St.3d ___, 2015-Ohio-995, ___ N.E.2d ___-- Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.
State v. Wilson, 129 Ohio St. 3d 214, 2011-Ohio-2669 – Defendant was convicted of aggravated robbery, felonious assault and kidnapping. The Eighth District held kidnapping merged with both felonious assault and aggravated robbery, but that aggravated robbery and felonious assault were not allied offenses of similar import. The issues before the Supreme Court were the nature of the resentencing hearing and the extent to which the defendant might obtain relief based upon biased statements of the original sentencing judge, which the Court of Appeals had not addressed. Syllabus: “(1) When a cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial court must hold a new sentencing hearing for the offenses that remain after the state selects which allied offense or offenses to pursue. (2) A defendant is not barred by res judicata from raising objections to issues that arise in a resentencing hearing, even if similar issues arose and were not objected to at the original sentencing hearing.” Remedy for claimed bias on the part of the trial judge would be seeking disqualification.
State v. Damron, 129 Ohio St. 3d 86, 2011-Ohio-2268 – In passing sentence the trial court believed State v. Rance forced merger of domestic violence and felonious assault counts because the victim was a family or household member, but instead of imposing a single sentence as required, imposed separate concurrent sentences. Reasoning is faulty so remanded for resentencing in light of State v. Johnson. Court had refused to accept for review the question whether the offenses are allied offenses of similar import.
State v. Craycraft, 193 Ohio App. 3d 594, 2011-Ohio-413 – On remand, post-Johnson, court concludes felonious assault, domestic violence, and F-3 child endangerment can all be committed with the same conduct. As to whether the offenses were committed by a single act with a single state of mind, the case was tried in such a manner that this cannot be determined. The prosecutor did not tie specific conduct by the defendant to the specific counts within the indictment, as this was not required in the Rance era.
Sate v. Lanier, 192 Ohio App. 3d 762, 2011-Ohio-898 – Counts of attempted murder, felonious assault based on infliction of serious physical harm, and felonious assault premised on the use of a firearm, may all be based on the same conduct, and merge when committed as a single act with a single state of mind. Offenses here merge even though multiple shots were fired.
State v. Barker, 191 Ohio App. 3d 293, 2010-Ohio-5744 – In a missing body case felonious assault and felony murder counts merge.
State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1 – Syllabus: “(1) When a sentence is imposed for multiple counts of offenses that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court. (2) A sentence is ‘authorized by law’ and is not appealable within the meaning or R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions.” State conceded that two of the offenses pled to were allied offenses of similar import. Court imposed concurrent sentences within the maximum set forth in the plea agreement. ¶27: Courts are under a duty to merge counts at sentencing. ¶29: Parties could have stipulated the offenses did not merge. ¶31: Reversible as plain error. Even though counts were concurrent, “a defendant is prejudiced by having more convictions than are authorized by law.”
State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2 – Syllabus: “(1) The state retains the right to elect which allied offense to pursue on sentencing remand to the court after appeal. (2) Upon finding reversible error in the imposition of multiple punishments for allied offenses, a court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it will pursue against the defendant. (3) Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing.” See dissent for discussion of the meaning of “conviction” and of a potential double jeopardy violation if the guilt finding of a merged charge is kept alive.
State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625 -- Paragraph one of the syllabus: "In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, if the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, clarified.)" As applied to the drug offenses at issue, possession, and trafficking based on sale or offer to sell, do not merge, because one may offer to sell without possession and one may possess without an intent to sell. Possession and trafficking premised on preparation for shipment, shipment, transport, delivery etc. do merge, since any of these alternatives requires possession. But trafficking premised on shipment, etc. and trafficking premised on sale or offer to sale do not merge, as the latter does not require actual possession. Also see State v. Fritz, 182 Ohio App. 3d 299, 2009-Ohio-2175; State v. Goodson, 192 Ohio App. 3d 246, 2011-Ohio-722, ¶34-39.
State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, ¶35-40. Both Blockburger and R.C. 2941.25, ―are rules of statutory construction designed to determine legislative intent. The opinion quotes from Justice Rhenquist‘s dissenting opinion in Whalen v. United States (1980), 445 U.S. 684, 714: "[B]y asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes." Addressing whether statutes set forth allied offenses, Ohio courts in the past had also considered the societal interests protected in determining whether separate punishments were intended. In Brown this analysis was dispositive. The aggravated assault statute provides alternative theories of culpability, both protecting the same societal interest - preventing physical harm to persons. Thus they are allied offenses of similar import and merge when the offenses result from a single act.
State v. Williams, 124 Ohio St. 3d 381, 2010-Ohio-147 – Syllabus: “(1) Felonious assault as defined in R.C. 2903.11(A)(1) is an allied offense of attempted murder as defined in R.C. 2903.02(B) and 2923.02. (2) Felonious assault as defined in R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02. (3) The state retains the right to elect which allied offense to pursue on sentencing on a remand to the trial court after appeal. State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2…paragraph one of the syllabus, followed.” Two shots were fired. One paralyzed the victim, the other missed. Pre-Johnson case. Majority leaves defendant with two convictions. Dissent would reverse Rance, look at the evidence, and leave him with one.
State v. Winn, 121 Ohio St. 3d 413, 2009-Ohio-1059 – Syllabus: "The crime of kidnapping, defined by R.C. 2501.01(A)(2), and the crime of aggravated robbery, defined by R.C. 2911.01(A)(1), are allied offenses of similar import pursuant to R.C. 2941.25." Strict textual comparison of elements is not required. Majority and dissenting justices split on how narrowly "necessarily" is to be interpreted when comparing elements.
State v. Harris, 122 Ohio St. 3d 373, 2009-Ohio-3323 – Syllabus: "(1) Robbery defined in R.C. 2911.02(A)(2) and aggravated robbery defined in R.C. 2911.01(A)(1) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim. (2) Felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim. (State v. Cotton, 120 Ohio St. 3d 321, 2008-Ohio-6249, 898 N.E. 2d 959, followed.)"
State v. Creech, 188 Ohio App. 3d 513, 2010-Ohio-2553 – After discussion of recent Supreme Court decisions on merger court concludes: (1) Illegal assembly or possession of chemicals for the manufacture of drugs and illegal manufacturing don’t merge. (2) With respect to multiple weapon under disability charges, counts involving simultaneous possession of several weapons at one location do merge. Counts based on an ammo box containing multiple weapons merge. Count based on rifle found elsewhere did not merge. (3) Weapon under disability and dangerous ordinance counts do not merge, though the dangerous ordinance counts merge with one another. Pre-Johnson case.
State v. Mosely, 178 Ohio App. 3d 631, 2008-Ohio-5483 – Allied offense of similar import analysis begins with comparison of the elements in accordance with Rance and Cabrales. Since this two-part test sometimes produces erroneous results, the court must then assess whether the legislature intended to permit cumulative sentencing by determining whether the legislature manifested an intention to serve two different interests in enacting the two statutes. State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, applied. As to the elements of domestic violence and kidnapping, the commission of one offense doesn‘t necessarily result in the commission of the other. Not are the societal interests protected by the two statutes the same.
State v. Palmer, 178 Ohio App. 3d 192, 2008-Ohio-4604 – In 2002 the First District affirmed the imposition of consecutive sentences for related counts of robbery and aggravated robbery, relying on State v. Rance. In the wake of Cabrales the court grants a motion for reconsideration though the time prescribed by rule has long passed, and rules that the counts merge.
State v. Marriott, 189 Ohio App. 3d 98, 2010-Ohio-3115 – Defendant was convicted of identically phrased counts of aggravated burglary, and given concurrent sentences. Two people were in the house and multiple items were taken. Majority holds the offenses merged. With respect to burglary, trespass is the basis for the charge, not harm or potential harm to persons. Additional factors only determine the potential penalty.
State v. Person, 174 Ohio App. 3d 287, 2007-Ohio-6869 – Defendant fired one shot towards two officers, wounding one and not injuring the other. Majority rejects merger claim.
State v. Lanier, 180 Ohio App. 3d 376, 2008-Ohio-6906 – Attempted murder and felonious assault premised on causing or attempting to cause physical harm by means of a deadly weapon are allied offenses of similar import. But felonious assault premised on serious physical harm and attempted murder are not. Compare State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, ¶88-93.
State v. Roberts, 180 Ohio App. 3d 666, 2009-Ohio-298 – Felonious assault and attempted murder were committed with a separate animus where the defendant began stabbing his girlfriend with a steak knife, but then changed to a kitchen knife .
State v. Lawrence, 180 Ohio App. 3d 468, 2009-Ohio-33 – Related counts of involuntary manslaughter ad aggravated vehicular assault do not merge where there are separate victims.
State v. Marshall, 175 Ohio App. 3d 488, 2008-Ohio-955, ¶76-83 – Murder and involuntary manslaughter merge as one is a lesser included offense to the other. Same applies to possession and trafficking in the same drug.
State v. Stevenson, 181 Ohio App. 3d 292, 2009-Ohio-901 – Complicity to commit robbery and receiving stolen property are not allied offenses of similar import.
State v. Barker, 183 Ohio App. 3d 414, 2009-Ohio-3511 – Felonious assault and aggravated burglary are not allied offenses of similar import.
State v. Parker, 183 Ohio App. 3d 431, 2009-Ohio-3667 – Breaking and entering and vandalism are not allied offenses of similar import.
State v. Lee, 190 Ohio App. 3d 581, 2010-Ohio-5672 – In a pre Johnson home invasion case the court concludes aggravated robbery and felonious counts were committed separately regardless of whether they were allied offenses of similar import. For one defendant, kidnapping and aggravated robbery counts did merge.
State v. Johnson, 195 Ohio App. 3d 59, 2011-Ohio-3143, ¶76-80 – Felonious assault and felony murder premised on that same assault merge.
State v. Afshari, 187 Ohio App. 3d 151, 2010-Ohio-325 – One count of RSP pertained to a wallet and a stereo. Second count involved a credit card. All were obtained in a single transaction or occurrence. Offenses merged. Rance era case. Began as an intervention in lieu of conviction case and merger was argued at the time the guilty pleas were entered. Ruling was deferred until the defendant was sentenced as a violator.
State v. Brown, 186 Ohio App. 3d 437, 2010-Ohio-324 – Separate possession counts were premised on seizure of .46 grams of cocaine in a hotel room and a video showing the defendant smoking crack earlier in the evening. Trial court erroneously imposed consecutive sentences. ¶12: “In this case we find that both counts of possession of cocaine were committed with a single animus: to smoke crack cocaine. On the night of August 1, 2008, appellant rented a motel room with a few friends, equipped wit crack cocaine, crack pipes, and an array of additional drug paraphernalia. There is no evidence to indicate that appellant planned to sell the remaining .46 grams of crack cocaine or to do anything other than continue to use it with his companions.” The defendant had to possess the unused portion at least momentarily before use.
State v. Cooper, 104 Ohio St. 3d 293, 2004-Ohio-6553 -- Syllabus: "(1) R.C. 2941.25(A) applies when the state obtains multiple convictions arising out of the same conduct of a defendant that can be construed to constitute two or more allied offenses of similar import.  (2) Where the state has not relied upon the same conduct of the defendant to support a conviction for the offense of involuntary manslaughter involving child endangering and a separate conviction for child endangering, the defendant may be convicted of both crimes and sentenced on each."  Defendant both shook the child and slammed him against a hard surface.  At ¶ 29: "Our decision does not alter our holding in Rance, because Rance is not implicated by the facts of this case.
State v. Kvasne, 168 Ohio App. 3d 167, 2006-Ohio-5235 -- Abduction is a lesser included offense to kidnapping. In determining what constitutes a lesser included offense some attention must be given to the facts of the case. Abstract comparison of the elements may allow "criminal defendants to walk away from their crimes." ¶59: "What has been bound together in law for centuries, therefore, should not be rent asunder by a too literal application of Deem and conflated by Rance."
In re Rashid, 163 Ohio App. 3d 515, 2005-Ohio-4851 -- ¶11-28 discuss Rance and other cases, concluding State v. Logan (1979), 60 Ohio St. 2d 126 again is the primary authority for merger of complicity to rape and kidnapping.  Defendant loses under either standard.  Under Rance it is impossible to kidnap without raping.  Under Logan the restraint and beating as a part of the game of "arrest" were not merely incidental and subjected the victim to a substantial risk of harm separate and apart form the rape.  Game involved teenage boys treating the supposed arrestee like Abner Louima.  Blended juvenile and adult sentence case.
State v. Yarborough, 104 Ohio St. 3d 1, 2004-Ohio-6087, ¶ 98-102 -- Citing State v. Rance (1999), 85 Ohio St. 3d 632, theft and RSP are allied offenses of similar import.  Reversed as plain error.
State v. Palmer, 148 Ohio App. 3d 246, 2002-Ohio-3536 -- Court affirms maximum consecutive sentences imposed for aggravated robbery and robbery counts based on the same conduct. Majority rejects claim that language in State v. Fears (1999), 86 Ohio St. 3d 329, negates the syllabus rule of State v. Rance (1999), 85 Ohio St. 3d 632. This overlooks the new position that both the syllabus and the body of an opinion may state the holding in a Supreme Court case. Dissent is sharply critical of Rance and calls on the Supreme Court to correct the bolix it has made of the related problems of allied offenses and lesser-included offenses. Also see State v. Hendrickson, Montgomery App. No. C.A. 19045, 2003-Ohio-611.
State v. Watson, 154 Ohio App. 3d 150, 2003-Ohio-4664 -- Robbery premised on the threat or use of immediate force is a lesser included offense to some, but not all, alternative theories of culpability for robbery premised on threat, infliction or threat of physical harm. Applying Whalen v. United States (1980), 445 U.S. 684 to preempt stricter Ohio views on lesser-included offenses and allied offenses of similar import, court applies analysis to individual theories of culpability. Result here is conclusion defendant was properly convicted of a lesser included offense, but same analysis might undermine Rance analysis concerning allied offenses of similar import.
State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, ¶24-38 -- Defendant claimed that acquittal on a crack possession charge at his first trial barred subsequent prosecution on any offense involving the same quantity of drug. Following Rance allied offense of similar import analysis, possession and trafficking are distinguishable under Blockburger. At ¶37: "Were it possible to sell or offer to sell without possessing the drug we would have a difficult time reconciling Rance with common sense. But the unique juxtaposition of the elements here gives us no problem."
State v. Howard, Hamilton App. No. C-020389, 2003-Ohio-1365 -- Defendant took money from a safe in a flower shop office and ran from the store pursued by three employees. Consecutive sentences for three counts of robbery reversed. Counts merged. There was not a separate act of force against each employee. Nor was there more than one animus.
State v. Murray, 156 Ohio App. 3d 219, 2004-Ohio-654 -- Defendant shot at a van containing four people, wounding two of them.  Though logic suggests four offenses, court affirms six - four for attempting to cause physical harm by a deadly weapon, two more for actually causing serious physical harm.
State v. Latson (1999), 133 Ohio App. 3d 475 -- Appellant pled guilty to related counts of aggravated robbery and kidnapping. Trial court committed plain error in not conducting a hearing to determine whether the offense constituted allied offenses of similar import. While State v. Comen stands for the proposition that an appellate court need not address a merger issue not called to the attention of the trial court, it does not preclude consideration of such issues.
State v. Douse (2000), 140 Ohio App. 3d 42 -- Defendant claimed multiple counts of illegal use of a minor in a nudity oriented performance were allied offenses of similar import. Motion to correct sentence filed the day after the sentencing hearing was sufficient to preserve the issue for appeal. Remanded for a hearing on the merits.
State v. Wilson (2001), 145 Ohio App. 3d 374 -- Plea was entered to receiving stolen property. Factual proffer indicated defendant was the actual thief. Conviction stands. While recognizing the general principal that a thief may not also be convicted of receiving, the remedy is through merger. Court did not err in accepting plea and finding the defendant guilty of receiving.
State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶48 -- Arson counts alleging risk of harm to different individuals do not merge. Also see State v. Jones (1985), 18 Ohio St. 3d 116, 117.
State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935 -- Applying State v. Rance, 85 Ohio St. 3d 632, 1999-Ohio-291, involuntary manslaughter and aggravated arson do not merge.
State v. Bybee (1999), 134 Ohio App. 3d 393 -- 188 dogs were found in deplorable condition in defendant's care. The six charges defendant was convicted of merged for the purposes of sentencing.
State v. Austin (2000), 138 Ohio App. 3d 547 -- Separate acts of touching amount to multiple offenses of the gross sexual imposition statute.
State v. Fenwick (2001), 91 Ohio St. 3d 1252 -- Court dismisses conflict case as improperly certified on the question whether it is plain error to impose concurrent sentences for merged offenses.
State v. Crowley, 151 Ohio App. 3d 249, 2002-Ohio-7366, ¶34 -- When a court has determined that counts merge, it is error to impose concurrent sentences as to each count.
State v. Harris, Franklin App. No. 02AP-977, 2003-Ohio-2414 -- Kidnapping and abduction don't merge as kidnapping may be accomplished entirely by deception. Thus, in the court's words, abduction is not a lesser-included offense. Logic is fuzzy, but reflects application of Rance.
State v. Allen, Cuyahoga App. No. 82618, 2003-Ohio-6908, ¶ 18-23 -- Because the offense of burglary is not defined in terms of conduct towards another person, multiple counts merge where they differ only as to the name of the resident.
State v. Church, 161 Ohio App. 3d 589, 2005-Ohio-2984 -- While holding to district precedent that attempted murder and felonious assault do not merge, even when there has been a single shot, two of three judges suggest the case should go to the Supreme Court as a certified conflict.
State v. Deters, 163 Ohio App. 3d 157, 2005-Ohio-4049 -- In a case where the facts suggest robbery counts did not merge, appellate court interposes invited error based on the defendant having pled guilty to two counts.  Trial counsel had argued merger.  Dubious holding since merger is an issue to be raised after determination of guilt or innocence.  Under R.C. 2941.25 the defendant may be brought to trial on allied offenses of similar import but conviction may be entered on only one.
State v. Taogaga, 165 Ohio App. 3d 775, 2006-Ohio-692 -- When a sentence has been vacated in its entirety, claims of merger are not barred by res judicata because they were not advanced in a previous appeal.
State v. Rance (1999), 85 Ohio St. 3d 632 -- Syllabus: "(1) Under an R.C. 2941.25(A) analysis, the statutorily defined elements of offenses that are claimed to be of similar import are compared in the abstract. (Newark v. Vazarini [1990], 48 Ohio St. 3d 81...overruled.) (2) Involuntary manslaughter and aggravated robbery are not allied offenses of similar import. (3) In Ohio it is unnecessary to resort to the Blockburger test in determining whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional provisions against double jeopardy. Instead, R.C. 2941.25's two-step test answers the constitutional and state statutory inquiries. The statute manifests the General Assembly's intent to permit, in appropriate cases, cumulative punishments for the same conduct..." Compare the analysis in State v. Norman (1999), 137 Ohio App. 3d 184, dissenting opinion at 204-206.
State v. Lang (1995), 102 Ohio App. 3d 243, 250-251 -- (1) The comparison of elements test for the purpose of determining whether crimes are allied offenses of similar import does not turn on whether each offense has what is technically a separate element as is done in applying the Blockburger elements test to double jeopardy claims. Instead, the commonality of elements is to be looked at in the context of the facts and circumstances to see if the same conduct is being punished. (2) For purposes of plain error analysis, even though sentences on counts which should have merged were concurrent, the error is prejudicial.
State v. Kent (1980), 68 Ohio App. 2d 151 -- (1) A person may be charged, tried and found guilty by a jury of multiple offenses arising from the same course of conduct, however, if the offenses are allied offenses of similar import, conviction and sentence may be entered on only one. Also see State v. Darga (1985), 30 Ohio App. 3d 54, 56. (2) When there has been a guilty plea to allied offenses of similar import, the court must conduct a hearing to determine whether the charges merge for purposes of conviction and sentence. Also see State v. Dunihue (1984), 20 Ohio App. 3d 210.
State v. Mangrum (1993), 86 Ohio App. 3d 156 -- When the court accepts a guilty plea to offenses which are allied offense of similar import, it must conduct a hearing to determine whether the offenses were committed separately or with a separate animus.
State v. Redman (1992), 81 Ohio App. 3d 821 -- The prosecutor and not the court elects on which of merged offenses the defendant will be sentenced. But see dissent.
State v. Osborne (1976), 49 Ohio St. 2d 135, 144 -- The state is not required to elect on which charge it wishes to proceed until jury has returned verdicts on both. Also see State v. Weind (1977), 50 Ohio St. 2d 224, 236; Maumee v. Geiger (1976), 45 Ohio St. 2d 238; Columbus v. Howard (June 2, 1977), Franklin Co. App. Nos. 77AP-109 and 110, unreported (1977 Opinions 1990).
State v. Urvan (1982), 4 Ohio App. 3d 151 -- Successful completion of a diversion program is the equivalent of serving a sentence or completing probation. If related charges would have merged if pursued initially, they may not be pursued upon completion of diversion.
State v. Comen (1990), 50 Ohio St. 3d 206, 211 -- Issue of merger must be raised in the trial court in order to preserve the issue for purposes of appeal. Also see State v. Deutsch (January 10, 1991), Franklin Co. App. No. 90AP-195, unreported (1991 Opinions 100). [Argue failure to do so amounts to ineffective assistance of counsel or plain error.]
State v. Gabor (1986), 33 Ohio App. 3d 122 -- Break in continuity of course of criminal conduct (OMVI - physical control) makes incidents separate and distinct criminal acts.
State v. Fields (1994), 97 Ohio App. 3d 337 -- Out of a single incident, defendants were convicted of the aggravated robbery of a fast food outlet and for robbery of the restaurant and an employee. (1) Offense with regard to the employee did not merge. (2) Robbery and aggravated robbery of the restaurant did merge. (3) Though the issue was not raised before the trial court, reversed as plain error. Error is prejudicial even though concurrent sentences had been imposed. (4) Plain error reversal moots ineffective assistance of counsel claim.
State v. Gregory (1993), 90 Ohio App. 3d 124 -- Defendant fired shots at a police cruiser he knew contained two officers. Held that he could be convicted and consecutively sentenced for two counts of felonious assault, as the offenses were committed separately. However, he could be sentenced to only one three year term of actual incarceration for firearm specifications, as the offenses arose from the same transaction.
State v. Williams (1996), 115 Ohio App. 3d 24, 35-37 -- Second officer was hit by a stray bullet in gun battle between defendant and another officer. Court entertains the possibility that attempted murder of the first officer and felonious assault upon the second could be allied offenses of similar import, the pivotal issue being whether the defendant was aware of the presence of other officers. Resolving this question against the defendant, court concludes there was a separate animus.
State v. Houston (1997), 122 Ohio App. 3d 334 -- Securities fraud under R.C. 1707.44(G) and making false representations in the sale of securities under R.C. 1707.44(B) are allied offenses of similar import.
State v. Delfino (1986), 22 Ohio St. 3d 270 -- Syllabus: "The simultaneous possession of different types of controlled substances can constitute multiple offenses under R.C. 2925.11." Note: Decision does not make it clear whether holding applies to different drugs on the same schedule. Also see State v. Hedelsky (1985), 28 Ohio App. 3d 78; State v. Bondurant (December 19, 1985), Franklin Co. App. No. 85AP-427, unreported (1985 Opinions 3690).

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