[Cite as State v. Williams, 2012-Ohio-5344.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                  )   CASE NO. 10 MA 136
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )   OPINION
                                               )
ANTHONY D. WILLIAMS                            )
                                               )
        DEFENDANT-APPELLANT                    )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 10 CR 475

JUDGMENT:                                          Affirmed in part. Sentence Vacated.
                                                   Remanded for Resentencing.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Rhys B. Cartwright-Jones
                                                   42 N. Phelps Street
                                                   Youngstown, Ohio 44503-1130

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: November 14, 2012
[Cite as State v. Williams, 2012-Ohio-5344.]
WAITE, P.J.


                                               Summary

        {¶1}     On April 26, 2010, Appellant Anthony D. Williams was being held in the

Mahoning County Justice Center when the sprinkler head in his cell was broken. At

the time of the damage, Appellant was alone in the cell. As a result of the breakage,

seventy-two cells and the adjacent common areas were without fire protection,

disrupting law enforcement and emergency services for the duration of the clean up

and repair of the breakage. Appellant was charged with and convicted of vandalizing

government property and disrupting government services as a result of the damage

to the sprinkler head and system.              Appellant argues that he received ineffective

assistance of counsel at trial, that his convictions were against the weight of the

evidence, and that he was convicted of allied offenses which should merge for

sentencing purposes. While Appellant’s first and second assignments of error are

without merit and are overruled, the record is inconclusive with regard to Appellant’s

third assignment of error. Thus, we vacate Appellant’s sentence and remand the

matter for a hearing on the issue of possible merger and for resentencing.

                                                Facts

        {¶2}     On April 26, 2010, Appellant, Anthony D. Williams, was being held at

the Mahoning County Justice Center. Appellant, who had previously served a federal

prison term, appears to have been awaiting a federal hearing or sentencing due to a

gun violation which also violated the terms of his release. On the day of the incident

Appellant, who was anticipating a meeting with his attorney, had a verbal altercation

with a corrections officer.         This resulted in Appellant’s removal from the general
                                                                                       -2-

population areas of the jail and his introduction into O-Pod. O-pod is a disciplinary

section of the jail where those being held are placed in individual cells and prevented

from interacting with one another and with the rest of the jail population.

       {¶3}   According to the testimony of Deputy Hyshaw, who was in charge of O-

pod on April 26, 2010, Appellant was taken to cell 28 in O-pod while in restraints.

Once Appellant was placed in his cell and the transporting deputy believed he was

calm, his restraints were removed, and he was left alone in the cell. After Appellant’s

restraints were removed he began shouting, and punching and kicking the door. At

this point Deputy Hyshaw was observing the O-pod from the booth. Shortly after the

punching and kicking began, the fire alarm went off and water began pouring from

under the door of the cell Appellant occupied.            (Tr. Vol. II, pp. 183, 191.)

Maintenance was called. The water spread throughout O-pod, into the deputy booth,

and down to the pod below.

       {¶4}   The source of the water was the jail sprinkler system. Water gushed

into the cell because the sprinkler head had been broken away from the wall. Two

pieces of the head were later retrieved from the cell. One smaller piece was found to

be completely detached from the wall. The second, larger portion of the head had to

be removed for repair. (Tr. Vol. II, p. 187.) All testifying jail employees, both deputies

and maintenance, testified that they had never known a head to break

spontaneously, but that inmates did periodically break them off of the wall. It is

unclear exactly how Appellant may have broken the sprinkler head in this instance;

other inmates had used sheets to pull them off or hit them with a shoe. Appellant

had a blanket in the cell with him, was clothed, and appears to have damaged his
                                                                                      -3-

hands while he was in the cell. (Tr. Vol. II, pp. 193, 251.) The deputy in charge of

the pod did not actually see Appellant break the sprinkler and could not testify as to

whether he used the blanket to pull off the head. Appellant was removed from O-pod

after the incident and placed in a cell where the sprinkler head is out of reach.

       {¶5}   Photographs were taken to document the breakage and the flooding of

O-pod. Through the window of the door on cell 28, a photograph was taken of

Appellant with his hands in the air in front of him, and water on the floor of the cell.

(The photo was described during testimony, but does not appear in the record

transmitted on appeal).    Deputy Hyshaw testified that this photograph was taken

before the door to cell 28 was opened after Appellant broke the sprinkler head. The

deputy confirmed on rebuttal that between the time the sprinkler broke and the

picture was taken he did not physically interact with Appellant in any way. (Tr. Vol. II,

p. 271.) In order to fix the sprinkler head in cell 28 and stop the leak, the fire

suppression system had to be shut off for the entire pod as well as the pod below.

While repairs were completed, seventy-two cells were without fire protection.

       {¶6}   Appellant does not dispute the events leading up to his placement in O-

pod cell 28. However, Appellant maintains that he was still wearing restraints when

he was placed in the cell. Appellant claims that once he was placed in the cell, the

deputy asked him if he would like to have the restraints removed. Appellant claims

that he told the deputy to leave the restraints on and the deputy complied with his

wishes. According to Appellant, after he was placed in the cell and chose to remain

in restraints, he and the other individuals in the pod were talking through their doors

and everyone in the pod became agitated. Appellant maintains that he never struck
                                                                                     -4-

the walls or door of his cell and did not break the sprinkler head. He says that his

hand was injured when he was incarcerated in 2002, and that the old injury is still

visible, and was not the result of striking anything in his cell on April 26, 2010.

Appellant maintains that the photograph depicting him in the cell with his hands free

and in front of him was taken after the deputies responding to the flooding removed

his restraints and told him to hold his hands in front of him so that they could check

his hands for injuries. According to Appellant he did not break the sprinkler head, the

system broke on its own while he was alone and handcuffed by choice in his cell.

       {¶7}   Another inmate, also held in O-pod at the time, testified on behalf of

Appellant. The inmate testified that Appellant was wearing handcuffs behind his

back when he entered O-pod and that after Appellant was placed in his cell in O-pod

the sprinkler, which the witness could hear, went off. The inmate explained that he

was in his own cell and could not see inside Appellant’s cell; that he did not know

whether Appellant’s restraints were removed once he entered his cell; and that he

also did not recall the amount of time that passed between Appellant entering his cell

and the sprinkler going off.

       {¶8}   Captain John Beshara, the officer in charge of the jail, reviewed the

investigative report prepared by the deputy on duty when the incident occurred. He

also interviewed Appellant the day after the incident.      When the captain asked

Appellant about the incident Appellant reportedly responded “I’m a federal inmate.

You can’t charge me. I don’t care about your charges * * *.” (Tr. Vol. II, p. 171.)

According to Captain Beshara, Appellant was obviously upset that he was being held

in the county jail when he was a federal inmate. (Tr. Vol. II, p. 170.) The captain also
                                                                                        -5-

explained that although there is a video surveillance system that captures the

common areas of the jail, there is no video taken of the interior of the inmates’ cells.

For this reason, according to the captain, only the still photographs taken by the

responding deputy were offered in evidence. (Tr. Vol. II, pp. 174-176.) The captain

also testified that it was jail policy to transport inmates to O-pod in handcuffs, both for

the safety of the transport staff and to allow the prisoner to “keep face with the other

inmates.” (Tr. Vol. II, p. 263.) According to the captain, although a log was kept each

day, entries in the log book would not reflect whether an inmate was cuffed or when

cuffs were removed because it is “something that happens so often that it wouldn’t

make sense to make a record * * *.” (Tr. Vol. II, p. 267.)

       {¶9}   Appellant was indicted on one count of vandalism and one count of

disrupting public services. Trial commenced on August 10, 2010 and concluded on

August 11, 2010. The jury returned a guilty verdict on both counts in the indictment

on August 11, 2010.       The court polled the jury and the verdict was confirmed.

Defense counsel’s motion for dismissal notwithstanding the verdict was denied.

Appellant’s post-verdict motions for acquittal and new trial were overruled. The court

proceeded immediately to the sentencing hearing and the prosecution requested

maximum consecutive sentences. Appellant spoke on his own behalf and renewed

his demands that he be held in a federal facility. On April 12, 2010 the trial court

sentenced Appellant to one year in jail and costs of prosecution on count one,

vandalism, and one and a half years in jail and costs on count two, disrupting public

services, to be served consecutively. No motion was made to merge Appellant’s

convictions for sentencing purposes in the record. No discussion of merger occurred
                                                                                      -6-

during the sentencing hearing. After trial and sentencing the trial court granted trial

counsel’s motion to withdraw, found Appellant indigent, and appointed new counsel

for purposes of appeal. Appellant filed a timely appeal.

                                    Argument and Law

                             ASSIGNMENT OF ERROR NO. 1

          Counsel rendered ineffective assistance on behalf of Mr. Williams in

          violation of the 6th and 14th Amendments to the United States’

          Constitution.

          {¶10} Appellant argues in support of his first assignment of error that defense

counsel’s decision not to object to the prosecution witness’s characterization of O-

pod as a disciplinary portion of the jail, and to the testimony of maintenance staff as

to the origin of the damage to the sprinkler head, both amounted to ineffective

assistance of counsel. Appellant fails to demonstrate that trial counsel’s performance

was deficient and further fails to demonstrate prejudice as a result of these alleged

errors.

          {¶11} To prevail on a claim of ineffective assistance of counsel, Appellant

must show not only that counsel's performance was deficient, but also that he was

prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674, (1984) see also State v. Williams, 99 Ohio St.3d 493, 2003-

Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance falling

below an objective standard of reasonable representation.            “Prejudice,” in this

context, means a reasonable probability that but for counsel's errors the result of the
                                                                                     -7-

proceeding would have been different. Strickland at 687-688, 694. Moreover, in

evaluating the performance of counsel, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.”    Id. at 690-691.    Each of the alleged

deficiencies will be evaluated under the two-pronged Strickland test.

      {¶12} Appellant argues that it was inappropriate to allow jail staff to explain

the function of O-pod within the jail. Captain Beshara explained that O-pod was used

to place inmates in solitary confinement: a solo cell with a 23 and 1 schedule, which

means the individual is held alone in a cell, not visible to other inmates for 23 hours

of the day and allowed a single hour alone outside the cell but still separate from

other inmates. According to the captain’s testimony, “if we have inmates that can’t

get along in general population or who are causing problems with the staff or other

inmates, they ultimately get transferred to O-Pod, called the disciplinary range.” (Tr.

Vol. II, pp. 164-165.) Ohio Rule of Evidence 404(A) generally prohibits “[e]vidence of

a person’s character or a trait of character” when such evidence is used for “the

purpose of proving action in conformity therewith on a particular occasion.” Evid.R.

404(A). Similarly, Evid.R. 404(B) prohibits the use of “other crimes, wrongs or acts”

when used to “prove the character of a person in order to show action in conformity

therewith.” However, the rule allows the use of such evidence for “other purposes,”

including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.”
                                                                                    -8-

      {¶13} In this instance, the testimony of Captain Beshara and Deputy Hyshaw

was used to establish that Appellant was placed in a cell alone, out of the view of

others, which created the opportunity for the vandalism he was charged with to occur

unobserved. The fact that Appellant was removed to this location as a result of

acting out over his frequently expressed displeasure at being held in a county rather

than a federal facility further establishes motive and intent. None of the testimony

identified by Appellant in support of his argument was used to suggest that Appellant,

a federal felon being held for hearing on a violation of the terms of his probation,

must have broken the sprinkler because he was a discipline problem. Rather, it was

used to explain the circumstances under which he was being held and how those

circumstances created the opportunity for Appellant to damage the sprinkler system

while unobserved. No specific bad act was described and no similar behavior was

offered. The testimony in question does not amount to a violation of Evid.R. 404(A)

or (B), because no prohibited bad act testimony was offered, and the circumstances

under which Appellant was being held were directly related to his motive and

opportunity. Based on the record here, there is nothing to indicate that an objection

was merited to the trial court or that if an objection was made it would have been

sustained.   Counsel’s decision not to object was not error and did not prejudice

Appellant on this issue.

       {¶14} Appellant also argues that counsel should have objected to the

prosecutor’s request that Mr. Matasy, the employee in charge of repair and

maintenance at the justice center who responded to the incident in O-pod and

performed the necessary repairs on April 26, 2010, testify as to his opinion of how the
                                                                                     -9-

breakage occurred. Appellant claims that the witness should not have been allowed

to render an opinion on the cause of the breakage without having been qualified as

an expert on the subject. According to Appellant, this testimony was in violation of

Evid.R. 701, which limits the testimony of lay witnesses to statements “in the form of

opinions or inferences” which are “(1) rationally based on the perception of the

witness and (2) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.”

       {¶15} The witness’s testimony established that he was responsible for

maintenance and repairs in the jail; that he had fourteen and a half years of

experience in the facility; and that he had worked at the facility in that capacity from

the time the facility was built. He explained how the sprinkler system worked and

testified “[t]o the best of [his] knowledge” that the sprinkler heads were made of

“brass and stainless steel and they’re institutional grade.” (Tr. Vol. II, p. 196.) He

described the process necessary to repair the sprinkler system and testified that he

had replaced many sprinkler heads damaged by inmates but had never known one of

the sprinkler heads to spontaneously break. He personally performed the repair on

cell 28 and identified the two pieces of the broken sprinkler he retrieved on April 26,

2010. In response to the prosecutor’s questions, he opined that this sprinkler head,

like all the others he had repaired, was broken by a person and did not

spontaneously break in the manner the defense suggested. The witness was then

cross-examined as to how he knew that the sprinkler head was broken, and he

responded that he knew it was broken because when he entered the cell, it was

found in pieces. He then admitted in response to questioning that he did not “retrace
                                                                                   -10-

how specifically it was broken” and that he “[had] no idea how it became broken.”

(Tr. Vol. II, p. 205.)

       {¶16} The record reflects that this witness offered no specific opinion as to

how the sprinkler head “became broken,” but instead testified as to his first-hand

experience of how the system works, the historical absence of spontaneous

breakage, and the ability of a person, if he or she chose, to break the head with

concentrated effort. He also discussed the logistics of repair. There is nothing in this

testimony that suggests “metallurgical or hydrological knowledge” was necessary or

that the witness was asked to give what would amount to expert testimony.

(Appellant’s Brf., p. 8.) The fact that the witness was unable to offer conclusive

testimony as to how the head became broken was more than adequately established

by cross-examination resulting in the statement: “How it became broken I do not

know.” (Tr. Vol. II, p. 205.) The witness’s testimony was given on precisely those

matters that are “rationally based on the perception of the witness” and expressly

allowed by Evid.R. 701. Where the prosecution sought a conclusion that was beyond

the witness’s direct knowledge, it was placed in the proper context by cross-

examination.      Trial counsel’s performance during the examination and cross-

examination of the witness was not deficient and did not prejudice Appellant.

       {¶17} Appellant argues that he was prejudiced by this testimony because

there was nothing in the record to demonstrate Appellant had the physical

wherewithal to destroy the sprinkler head. This is a mischaracterization. Various

witnesses for the prosecution testified that they had, in the past, witnessed similar

damage to the system by other inmates’ use of sheets or shoes.            According to
                                                                                -11-

Deputy Hyshaw, Appellant was not restrained in his cell, which contained a mattress

and a blanket. Nothing in the record suggests that Appellant was not fully clothed

and in possession of his shoes. There is also testimony that suggests Appellant’s

hands showed evidence of physical damage after this incident, which resulted in a

complaint from his counsel who visited him that day soon after the incident occurred,

and a medical examination took place as a result of counsel’s complaints. According

to the testimony in the record, Appellant appears to have been alone in his cell,

unrestrained and in possession of the types of materials other inmates had used to

break the jail’s sprinkler heads. According to the testimony of both sides, when

Appellant was placed in the cell, the sprinkler was intact and unbroken. Appellant

has failed to demonstrate any error, and even if he could show error he has failed to

show that there may be prejudice resulting from the alleged error. Appellant’s first

assignment of error is without merit and is overruled.

                          ASSIGNMENT OF ERROR NO. 2

      The jury returned a verdict against the manifest weight of the evidence

      in violation of the 6th and 14th Amendments of the United States’

      Constitution.

      {¶18} Appellant argues that the state did not produce enough credible

evidence to establish that Appellant was the individual who damaged the sprinkler

system.

      {¶19} When determining whether a criminal judgment is against the manifest

weight of the evidence, this Court acts as a “thirteenth juror” to determine whether
                                                                                  -12-

“the jury clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1983).       The verdict is not against the weight of the

evidence when there is evidence which, if believed, will convince the average person

of the accused’s guilt beyond a reasonable doubt. State v. Eley, 56 Ohio St.2d 169,

172, 383 N.E.2d 132 (1978).

      {¶20} “A verdict that is supported by sufficient evidence may still be against

the manifest weight of the evidence.        ‘Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support

one side of the issue rather than the other. It indicates clearly to the jury that the

party having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them. Weight is not a question

of mathematics, but depends on its effect in inducing belief.” ’     (Emphasis sic.)”

(Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-

3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of fact to determine.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.

      {¶21} The jury in this instance was faced with two explanations of an incident

that had no direct witnesses. Both the prosecution and the defense agree that the

sprinkler head in O-pod cell 28 broke on April 26, 2010 while Appellant was alone in
                                                                                   -13-

the cell.   Various witnesses for the prosecution testified that Appellant was not

restrained in the cell, that he had objects in the cell he could use to damage the

system, and that in their collective 25 years of experience these sprinkler heads do

not spontaneously break. Appellant testified that the sprinkler head spontaneously

broke while he was alone and restrained in the cell.       A witness for the defense

testified that he was unable to see into the cell, but that Appellant entered the pod in

restraints, and was placed in the cell before the sprinkler broke. The jury was faced

with directly conflicting testimony and chose, as is its role, to believe the

prosecution’s version. Probative evidence of the elements of each count appears in

the record. There is nothing here to suggest that the jury may have lost its way.

Appellant’s second assignment of error is without merit and is overruled.

                          ASSIGNMENT OF ERROR NO. 3

       The court erred in ordering that Mr. Williams [sic] sentences be served

       consecutively in violation of the double jeopardy clause of the 5th

       Amendment and violation of the 14th Amendment of the United States’

       Constitution.

       {¶22} Appellant argues that his convictions for damaging government

property and disruption of public services are allied offenses that arise out of the

same operative facts and that his consecutive sentences in this case amount to

double jeopardy.

       {¶23} “Allied offenses of similar import” are defined by R.C. 2941.25 (not

2941.45 as identified by Appellant), which provides:
                                                                                    -14-

      (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 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.

      {¶24} Although the statute has remained unchanged by the legislature since

its passage in 1972 (effective January 1, 1974), Ohio jurisprudence interpreting and

applying the statute has undergone several changes. Our analysis has shifted from

an evaluation that considers the facts of the individual case, to an objective analysis

of the elements of the crimes without reference to the specific conduct concerned,

and has recently returned to a fact-driven analysis. State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061.

      {¶25} The Ohio Supreme Court’s most recent determination, State v.

Johnson, includes a plurality opinion and two separate concurrences.          While all

seven justices concur in both the syllabus and the judgment, only three justices are

united in the plurality opinion. This has created some divergence of interpretation in

applying Johnson.
                                                                                    -15-

       {¶26} Every appellate district in Ohio except the First has applied the plurality

version of Johnson in making a determination whether offenses are allied. State v.

Gilbert, 7th Dist. No. 08 MA 206, 2012-Ohio-1165, ¶26. The two-step test for allied

offenses advanced in the plurality opinion requires the trial or reviewing court to first

determine if the “offenses are allied offenses of similar import.” Johnson, supra, ¶48.

The court begins this inquiry by asking “whether the offenses were committed by the

same conduct” and “whether it is possible to commit one offense and commit the

other with the same conduct” but not “whether it is possible to commit one without

committing the other.” (Emphasis sic.) Id. at ¶47-48. According to the plurality, if the

answer to both questions is yes, the “offenses correspond to such a degree that the

conduct of the defendant constituting commission of one offense constitutes

commission of the other, then the offenses are of similar import.” Id. at ¶48. If, on

the other hand, “the court determines that the commission of one offense will never

result in the commission of the other,” then the offenses are not allied and do not

merge. (Emphasis sic.) Id. at ¶51.

       {¶27} If the court identifies offenses of similar import, it must then consider

whether the offenses were committed separately, or if the defendant has separate

animus for each offense. Id. at ¶51. If the offenses were committed separately, or if

there was separate animus for each, they remain separate for sentencing purposes.

Id.   Under the plurality’s formulation of the rule, if under any circumstances the

commission of one crime will result in the commission of the other then the offenses

are allied and merge, unless the crimes were committed separately or with separate

animus. Under the plurality’s test, the only way a court could find that the offenses
                                                                                    -16-

do not have similar import is if the court determines that it is impossible for the

commission of one offense to result in the commission of the other.

      {¶28} The facts presented in the matter presently before us appear to reflect a

single course of conduct that resulted in two separate charges for different criminal

wrongs and their resulting harm. Appellant broke the sprinkler head in the cell where

he was being held. Breaking the sprinkler was vandalism. The result of this damage,

disabling the sprinkler system in the adjoining cells and a significant portion of the

building, constitutes a disruption of the ability of law enforcement and emergency

services to respond to a fire in the building. This disruption placed Appellant and the

other inmates as well as prison staff at risk of serious physical harm.             This

combination of conduct and resulting charges highlights the dilemma in trying to

apply the test set forth in Johnson. If we look at this case only in the abstract, the

facts would suggest that the charges should merge. However, since the statutes are

designed to address different harms, and it is not at all clear what harm Appellant

intended, here, the offenses may not be allied.

      {¶29} Appellant was charged with one count of vandalism in violation of R.C.

2909.05(B)(2)(E), which provides:

      No person shall knowingly cause serious physical harm to property that

      is owned, leased, or controlled by a governmental entity. * * * Whoever

      violates this section is guilty of vandalism * * * vandalism is a felony of

      the fifth degree.
                                                                                    -17-

Appellant does not dispute that the sprinkler head was owned, leased or controlled

by the government, or that the destruction of the head was an act of vandalism.

      {¶30} Appellant was also charged with violating R.C. 2909.04(A)(3)(C), which

provides:

      No person, purposely by any means or knowingly by damaging or

      tampering with any property, shall * * * [s]ubstantially impair the ability

      of law enforcement officers, firefighters, rescue personnel, emergency

      medical services personnel, or emergency facility personnel to respond

      to an emergency or to protect and preserve any person or property from

      serious physical harm * * * [w]hoever violates this section is guilty of

      disrupting public services, a felony of the fourth degree.

      {¶31} Appellant alleges that the two offenses are allied and should merge for

the purposes of sentencing. According to Appellant, under the statutory definitions of

each offense, an offender could not vandalize public property without tampering with

public property and one could not vandalize public property without disrupting

government services. Appellee does not specifically address Appellant’s argument

concerning an overlap in the statutory definitions and instead argues that there was

separate animus for each offense.

      {¶32} Appellant’s argument overstates the correspondence between the two

statutes which are intended to address specific and different public harms, defacing

or damaging government property as opposed to disrupting or preventing law

enforcement and emergency services personnel from carrying out their duties. The
                                                                                      -18-

statutes are formulated with clear, and diverging, purposes.         One is intended to

maintain the integrity of all government property, broadly. The other is intended to

ensure the delivery of law enforcement, fire, medical, and other emergency services,

without interruption.   Given the difference between the conduct each statute is

designed to address, it seems clear that in the majority of cases a violation of one

would not involve a violation of the other. Examples of potential violations include

prank calls to 9-1-1, failure to yield to emergency vehicles, spray painting government

buildings, or stealing or defacing signage. While a false 9-1-1 call and failure to yield

may, in fact, result in interruptions of government services in some cases, the

vandalism of spray painting or defacing property would not usually interrupt these

services.   In the case before us, both violations arose from one set of facts.

However, the issue in this instance appears to depend on Appellant’s reason for

breaking the sprinkler head or what he knew or should have known would happen

once he inflicted the damage.

       {¶33} In opposition to Appellant’s assertion that the offenses are allied, the

state focuses on the separate animus portion of the rule rather than any overlap in

the statutes.   Appellee argues that Appellant could have vandalized government

property without disrupting government services, but instead chose to vandalize his

cell in a manner that disrupted services, and concludes that this choice is evidence

that he had two separate purposes. According to Appellee the fact that a single act

served both purposes does not negate separate animus and “Appellant’s clear

intention of breaking the sprinkler head completely off the wall demonstrated his

intent to interrupt or impair public services within the county jail.” (Appellee’s Brf., p.
                                                                                       -19-

22.) While the state is correct to focus on separate animus, the state suggests an

inference that appears to reach too far beyond the evidence as it currently appears in

the record.

       {¶34} However,     it   is   true   that   Appellant   repeatedly   expressed    his

dissatisfaction that he was being held in a county facility.       It is equally true that

Appellant had experience in federal, state and county facilities. It is certainly possible

that Appellant was aware that removing the sprinkler head would result in a shut

down of the cell block. It is equally possible that Appellant thought that if he caused

enough damage that he would be removed from the facility. He may simply have

desired to force his removal from that particular cell. Unfortunately, the trial court in

this instance did not have an opportunity to consider merger and flush out the issue

of animus. There is too little information in the record to determine whether the two

offenses were genuinely committed as a single act, or if, in fact, separate animus

exists in the commission of these two crimes.

       {¶35} Because the trial court did not have the opportunity at sentencing to

consider whether Appellant’s convictions were allied offenses and due to the

absence of necessary information in the record that would allow us to make this

determination, Appellant’s sentence is vacated and the matter remanded to the trial

court for a hearing on allied offenses, and for resentencing.
                                                                                     -20-

                                       Conclusion

       {¶36} The record shows that the conduct of trial counsel was not deficient.

Appellant failed to identify any prejudicial error resulting from the alleged deficiencies

in trial counsel’s conduct.   Appellant’s convictions were supported by competent,

credible, evidence which, if believed, supports a guilty verdict. However, it is unclear

from this record whether the two offenses were allied offenses of similar import and

should merge for sentencing purposes. For these reasons, Appellant’s sentence is

vacated and the matter remanded for a hearing on the merger issue and

resentencing.


Donofrio, J., concurs.

DeGenaro, J., concurs.
