[Cite as State v. Morgan, 2012-Ohio-3936.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY


STATE OF OHIO,                                    :
                                                  :
             Plaintiff-Appellee,                  :         Case No: 12CA3305
                                                  :
             v.                                   :
                                                  :         DECISION AND
RICHARD L. MORGAN,                                :         JUDGMENT ENTRY
                                                  :
             Defendant-Appellant.                 :         Filed: August 24, 2012



                                             APPEARANCES:

Timothy Young, Ohio State Public Defender, and Jeremy J. Masters, Ohio State
Assistant Public Defender, Columbus, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecutor, and Richard W. Clagg, Ross County
Assistant Prosecutor, Chillicothe, Ohio, for Appellee.


Kline, J.:

        {¶1}      Richard L. Morgan (hereinafter “Morgan”) appeals the judgment of the

Ross County Court of Common Pleas, which convicted him of complicity to aggravated

robbery. On appeal, Morgan contends that the state violated his double-jeopardy rights

by subjecting him to successive prosecutions for allied offenses of similar import. The

record, however, does not contain any evidence related to Morgan’s previous conviction

for receiving stolen property. Therefore, we cannot find that receiving stolen property

and complicity to aggravated robbery were committed by the same conduct. And

because we cannot find that Morgan’s offenses are allied offenses of similar import, we

must affirm the judgment of the trial court.
Ross App. No. 12CA3305                                                                2


                                               I.

       {¶2}   On June 26, 2010, Morgan and an accomplice were involved in a bank

robbery in Ross County. Eventually, Morgan was apprehended in Athens County,

where he was prosecuted for receiving stolen property.

       {¶3}   On October 29, 2010, a Ross County Grand Jury indicted Morgan for

complicity to aggravated robbery. According to Morgan, his participation in the June 26,

2010 bank robbery prompted both (1) the prosecution in Athens County and (2) the

prosecution in Ross County.

       {¶4}   On April 5, 2011, Morgan filed a motion to dismiss the complicity-to-

aggravated-robbery charge. Morgan claimed that, on February 8, 2011, he pled guilty

to receiving stolen property “in the Athens County Court of Common Pleas, Athens,

Ohio, Case Number 10 CR 0287.” Motion to Dismiss at 2. Morgan also claimed the

following:

              The Receiving Stolen Property offense stems from the

              Defendant’s possession of the money allegedly stolen from

              the bank robbery which is the subject of the [complicity-to-

              aggravated-robbery] offense. [And b]ecause the two counts

              are * * * allied offenses of similar import, * * * it is respectfully

              suggested that the Defendant has once been in jeopardy

              and that [the complicity-to-aggravated-robbery count] is

              therefore barred under the Fifth Amendment of the U.S.

              Constitution. Id.
Ross App. No. 12CA3305                                                              3


         {¶5}   The trial court overruled Morgan’s motion to dismiss the complicity-to-

aggravated-robbery charge. And after Morgan pled no contest, the trial court sentenced

him to three years in prison.

         {¶6}   Morgan appeals and asserts the following assignment of error: “The trial

court erred when it held that Richard Morgan’s conviction for aggravated robbery did not

violate double jeopardy principles as a successive prosecution for an allied offen[s]e of

similar import. Fifth and Fourteenth Amendments to the United States Constitution;

Section 10, Article I of the Ohio Constitution; R.C. 2941.25. (July 29, 2011 Transcript

pp. 1-4; December 12, 2011 Decision, pp. 1-6; December 12, 2011 Judgment Entry, pp.

1-2).”

                                              II.

         {¶7}   In his sole assignment of error, Morgan contends that the state violated

his double-jeopardy rights by subjecting him to successive prosecutions for allied

offenses of similar import. Essentially, Morgan argues that he should not have been

convicted of aggravated robbery in Ross County because he had already been

convicted of receiving stolen property in Athens County.

         {¶8}   “The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Section 10, Article I of the Ohio Constitution protect the accused

from being put in jeopardy twice for the same offense. These provisions protect an

individual against successive punishments as well as successive prosecutions for the

same offense.” State v. Moore, 110 Ohio App.3d 649, 652, 675 N.E.2d 13 (1st.

Dist.1996).
Ross App. No. 12CA3305                                                            4


       {¶9}   To determine whether Morgan’s double-jeopardy rights were violated, we

must examine his convictions in two different counties. We faced a similar situation in

State v. Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276 (4th Dist.1992). Thus, in

Clelland, we described how appellate courts should analyze successive-prosecutions-

in-separate-jurisdictions for potential double-jeopardy violations.

              When an offender, as part of a course of criminal conduct,

              commits offenses in different jurisdictions, he may be tried

              for all of those offenses in any jurisdiction in which one of

              those offenses occurred. R.C. 2901.12(H). In [State v.

              Urvan, 4 Ohio App.3d 151, 446 N.E.2d 1161 (8th

              Dist.1982)], the Eighth District Court of Appeals held that

              once one jurisdiction takes action first, it preempts venue

              and jurisdiction for the whole matter, and jeopardy must

              attach as a result of the activity of the first actor. See, also,

              State v. DeLong (1990), 70 Ohio App.3d 402, 591 N.E.2d

              345. In reaching their holdings, the Urvan (theft and

              receiving stolen property) and DeLong (robbery and

              receiving stolen property) courts emphasized that the

              offenses [charged in different jurisdictions] were allied

              offenses of similar import pursuant to R.C. 2941.25. See,

              e.g., DeLong, supra, 70 Ohio App.3d at 405, 591 N.E.2d at

              346, where the Tenth District Court of Appeals stated that

              “[a]ny possible question stemming from one jurisdiction’s
Ross App. No. 12CA3305                                                             5


              failure to include another available charge in its prosecution

              is resolved by R.C. 2941.25, which requires an election

              between convictions for allied offenses when the state

              chooses to pursue both.” Pursuant to Urvan and DeLong,

              we must consider whether the offenses here are allied

              offenses of similar import pursuant to R.C. 2941.25.

Clelland at 483-484.

       {¶10} Accordingly, in the present case, we must determine whether Morgan’s

convictions for receiving stolen property and complicity to aggravated robbery are allied

offenses of similar import. If they are, the conviction in Ross County violated Morgan’s

rights under the Double Jeopardy Clauses of the United States and Ohio Constitutions.

       {¶11} Under Ohio law, “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.” R.C. 2941.25(A). However,

              [w]here 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.

              R.C. 2941.25(B).
Ross App. No. 12CA3305                                                              6


This statutory language “codifie[s] the judicial doctrine of merger” and “prohibit[s] the

‘cumulative punishment of a defendant for the same criminal act where his conduct can

be construed to constitute two statutory offenses, when, in substance and effect, only

one offense has been committed.’” State v. Ware, 63 Ohio St.2d 84, 86, 406 N.E.2d

1112 (1980), quoting State v. Roberts, 62 Ohio St.2d 170, 172-173, 405 N.E.2d 247

(1980).

       {¶12} The Supreme Court of Ohio recently articulated a new test for determining

whether merger is appropriate. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061, ¶ 44.

              In determining whether offenses are allied offenses of similar

              import under R.C. 2941.25(A), the question is whether it is

              possible to commit one offense and commit the other with

              the same conduct, not whether it is possible to commit one

              without committing the other. [State v.] Blankenship, 38

              Ohio St.3d [116,] 119, 526 N.E.2d 816 [(1988)] (Whiteside,

              J., concurring) (“It is not necessary that both crimes are

              always committed by the same conduct but, rather, it is

              sufficient if both offenses can be committed by the same

              conduct. It is a matter of possibility, rather than certainty,

              that the same conduct will constitute commission of both

              offenses.” [Emphasis sic]). * * *

                 If the multiple offenses can be committed by the same

              conduct, then the court must determine whether the offenses
Ross App. No. 12CA3305                                                             7


             were committed by the same conduct, i.e., “a single act,

             committed with a single state of mind.” [State v.] Brown, 119

             Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50

             (Lanzinger, J., dissenting).

                 If the answer to both questions is yes, then the offenses

             are allied offenses of similar import and will be merged.

                 Conversely, if the court determines that the commission

             of one offense will never result in the commission of the

             other, or if the offenses are committed separately, or if the

             defendant has separate animus for each offense, then,

             according to R.C. 2941.25(B), the offenses will not merge.

             (Emphasis sic.) Johnson at ¶ 48-51.

      {¶13} To determine whether Morgan’s convictions are allied offenses of similar

import, we must examine the evidence in the record before us. See, e.g., State v.

Vance, 10th Dist., No. 11AP-755, 2012-Ohio-2594, ¶ 14; State v. Diggle, 3d Dist. No. 2-

11-19, 2012-Ohio-1583, ¶ 17; State v. Fairman, 2d. Dist. No. 24299, 2011-Ohio-6489, ¶

67-68. But here, the record contains no evidence of the conduct that resulted in

Morgan’s receiving-stolen-property conviction -- no statements from Morgan, no

testimony from witnesses, no documents from the case in Athens County, nothing.

Simply put, the present case contains absolutely no evidence related to Athens County

Case Number 10 CR 0287. In several court filings, Morgan’s trial counsel made

arguments related to Morgan’s receiving-stolen-property conviction, but “[a]rguments of

counsel are not evidence.” Thornton v. Conrad, 194 Ohio App.3d 34, 2011-Ohio-3590,
Ross App. No. 12CA3305                                                              8


954 N.E.2d 666, ¶ 18 (8th Dist.), quoting Reynolds v. Hazelberg, 6th Dist. No. E-98-082,

1999 WL 587627, *3 (Aug. 6, 1999). See also Ramos v. Khawli, 181 Ohio App.3d 176,

2009-Ohio-798, 908 N.E.2d 495, ¶ 82 (7th Dist.) (In a summary-judgment context,

“statements of counsel in a motion are arguments but are not evidence that a court can

rely upon to find a genuine issue of material fact.”). Furthermore, the record is

contradictory as to whether Morgan was even convicted in Athens County Case

Number 10 CR 0287. During Morgan’s arraignment, the assistant prosecutor stated the

following: “[U]p until yesterday, [Morgan was] being held on felony charges in Athens

County. I think that case was dismissed due to speedy trial problems, based upon

conversations we’ve had with the prosecutor’s office down there.” November 16, 2010

Transcript at 1. Therefore, the record does not even conclusively demonstrate that

Morgan was convicted of receiving stolen property.

       {¶14} Because there is no evidence related to Morgan’s receiving-stolen-

property conviction, we cannot find that receiving stolen property and complicity to

aggravated robbery were committed by the same conduct. See State v. Humphrey, 4th

Dist. No. 10CA3150, 2011-Ohio-5238, ¶ 18-23; State v. Savage, 7th Dist. No. 08-MA-

54, 2009-Ohio-7011, ¶ 31 (“Appellant cannot demonstrate that the aggravated robbery

and kidnapping crimes for which he was convicted were not committed with a separate

animus, because there is no evidence on the record of the facts and circumstances

surrounding his crimes.”). Therefore, Morgan cannot meet both prongs of the allied-

offenses-of-similar-import test. See Johnson at ¶ 50.
Ross App. No. 12CA3305                                                           9


       {¶15} In Humphrey, as in the present case, there was a lack of evidence to

support the appellant’s allied-offenses-of-similar-import claim. And based on that lack

of evidence, we held the following:

              [The appellant] had the duty of creating a record to support

              his allied-offenses-of-similar-import claim. “The parties

              involved in a case must be cognizant that, in addition to

              presenting their case at the trial level, they are creating a

              record for later review. It is imperative that attorneys protect

              the rights of their clients by ensuring that trial proceedings

              are adequately recorded and preserved for appeal.” State v.

              Gray (1993), 85 Ohio App.3d 165, 169. “When appellant

              does not supply an adequate record, we must affirm the trial

              court’s decision.” State v. Ellenburg (July 9, 1998), Pike

              App. No. 97CA597 (citation omitted).

Humphrey at ¶ 21. We apply this reasoning to the present case. Here, Morgan did not

provide an adequate record to resolve his claim that the state violated his double-

jeopardy rights by subjecting him to successive prosecutions for allied offenses of

similar import. Therefore, we must affirm the judgment of the trial court.

       {¶16} Accordingly, we overrule Morgan’s assignment of error and affirm the trial

court’s judgment.

                                                                  JUDGMENT AFFIRMED.
Ross App. No. 12CA3305                                                             10


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

      The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and Harsha, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
