[Cite as State v. Toms, 2017-Ohio-1576.]
                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,               :
                                                                        No. 16AP-562
v.                                                :                  (C.P.C. No. 15CR-6332)

Robin W. Toms,                                    :                (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                           D E C I S I O N

                                      Rendered on April 27, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee. Argued: Sheryl L. Prichard.

                 On brief: Yeura R. Venters, Public Defender, and John W.
                 Keeling, for appellant. Argued: John W. Keeling.


                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Robin W. Toms, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas. For the following
reasons, we reverse that judgment and remand the matter for resentencing.
I. Factual and Procedural Background

        {¶ 2} On December 23, 2015, a Franklin County Grand Jury indicted appellant
with counts of aggravated arson in violation of R.C. 2909.02, arson in violation of
R.C. 2909.03, vandalism in violation of R.C. 2909.05, and breaking and entering in
violation of R.C. 2911.13. The indictment arose from a fire that appellant started after he
broke into a warehouse in Columbus, Ohio. The fire destroyed the building and caused
significant financial loss. (June 30, 2016 Sentencing Hearing Tr. at 3-4.) Appellant
No. 16AP-562                                                                                              2

entered a not guilty plea to the charges but later withdrew that plea and entered guilty
pleas to counts of arson, vandalism, and breaking and entering.
        {¶ 3} At his sentencing hearing, appellant requested the trial court to merge his
convictions for arson and vandalism for purposes of sentencing. The trial court denied
the request, noting that the warehouse owner wrote in his victim's impact statement that
the appellant "tried to disable the sprinkler system by shutting off valves to it." Id. at 9.
The trial court concluded that such conduct supported the vandalism offense and was
separate and distinct from the conduct supporting the arson offense. Ultimately, the trial
court sentenced appellant to a total of three years in prison.
II. The Appeal

        {¶ 4} Appellant appeals and assigns the following error:
                The trial court erred when it sentenced the defendant, over
                objection, to separate, consecutive sentences on the vandalism
                and arson charges when these offenses were allied offenses of
                similar import and the defendant could only be sentenced on
                one.

    A. Merger of Offenses for Sentencing

        {¶ 5} Appellant argues that the trial court erred by not merging his arson and
vandalism offenses for purposes of sentencing. We agree.
        {¶ 6} R.C. 2941.25, Ohio's multiple count statute, provides:
                (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.

        {¶ 7} R.C. 2941.25(A) allows only a single conviction1 for conduct that constitutes
"allied offenses of similar import." But under R.C. 2941.25(B), a defendant charged with

1 A "conviction" consists of a guilty verdict and the imposition of a sentence or penalty, and therefore the
mandate in R.C. 2941.25(A) that a defendant may be convicted of only one allied offense is a protection
against multiple sentences rather than multiple convictions. State v. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, ¶ 12, 18.
No. 16AP-562                                                                             3

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. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 13.
In Ruff, the Supreme Court of Ohio set forth a test for determining whether offenses
merge under the statute:
               [W]hen 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.

Id. at ¶ 31.
       {¶ 8} At its heart, the allied-offense analysis is dependent upon the facts of the
case because R.C. 2941.25 focuses on the defendant's conduct. Thus, when considering
whether there are allied offenses that merge into a single conviction under R.C.
2941.25(A), courts must first take into account the conduct of the defendant. In other
words, how were the offenses committed? Ruff at ¶ 25-26.
       {¶ 9} We review a trial court's merger determination de novo. State v. Rivera,
10th Dist. No. 12AP-691, 2014-Ohio-842, ¶ 12, citing State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, ¶ 1.
   B. The Merger Analysis

       {¶ 10} The trial court concluded that separate conduct supported the vandalism
and arson offenses and, therefore, they did not merge for sentencing. The conduct the
trial court relied on to support the arson offense was simple and separate: appellant
started fires inside the warehouse. This conduct easily satisfies the elements of arson in
violation of R.C. 2909.03(A)(1), which prohibits any person, by means of fire or explosion,
from knowingly causing or creating a substantial risk of physical harm to any property of
another without the other person's consent.
       {¶ 11} To support the vandalism offense, the trial court noted that appellant tried
to disable the sprinkler system by shutting off valves to the system. Admittedly, this
No. 16AP-562                                                                                          4

conduct is separate from the act of starting fires. This conduct, however, does not support
the offense of vandalism in this case. As charged in this case, vandalism in violation of
R.C. 2909.05(B)(1)(a) prohibits any person from knowingly causing physical harm to
property that is owned or possessed by another, when the property is used by its owner or
possessor in the owner's or possessor's profession, business, trade, or occupation, and the
value of the property or the amount of physical harm involved is one thousand dollars or
more. Appellant's attempt to turn off the sprinkler system by shutting off its valves is not
conduct that can support this offense. That conduct, by itself, did not cause any physical
harm to the property.
        {¶ 12} The only possible conduct that could satisfy the charged offense of
vandalism in this case is setting the fire that destroyed the building. That conduct, which
is the same conduct supporting the arson offense, is the only conduct that caused one
thousand dollars or more of physical harm to the property.2 It is clear that the conduct
underlying the arson and vandalism offenses was the same: setting fires that destroyed
the warehouse.       Therefore, the offenses must merge for purposes of sentencing, as
appellant did not commit the offenses by separate conduct. State v. Love, 3d Dist. No. 9-
13-09, 2014-Ohio-437, ¶ 41-42 (trial court erred by not merging arson and vandalism
counts arising from fire started by defendant that engulfed the building). Accordingly, the
trial court erred by not merging the arson and vandalism offenses for purposes of
sentencing.
III. Conclusion

        {¶ 13} Because the trial court erred in not merging appellant's arson and
vandalism offenses, we sustain appellant's lone assignment of error and reverse the trial
court's judgment. Accordingly, we remand the matter for resentencing and for the state to
elect whether appellant is to be sentenced for his arson or vandalism offense.
                                       Judgment reversed; cause remanded with instructions.
                             BRUNNER and HORTON, JJ., concur.




2 Tellingly, the indictment in this case also alleged that appellant's act of vandalism caused more than
$150,000 of harm, an allegation that increased the severity of the vandalism offense to a felony of the
third degree from a felony of the fifth degree. R.C. 2909.05(E). This amount of damage could only have
been caused by the fire which destroyed the warehouse, not the act of attempting to turn off a sprinkler
system.
