[Cite as State v. Frazier, 2014-Ohio-3025.]


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

STATE OF OHIO,                                      :    Case No. 13CA5
                                                    :
        Plaintiff-Appellee,                         :
                                                    :    DECISION AND
        v.                                          :    JUDGMENT ENTRY
                                                    :
STEPHEN E. FRAZIER,                                 :
                                                    :    RELEASED: 6/30/2014

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Terrence K. Scott, Ohio State
Assistant Public Defender, Columbus, Ohio, for appellant.

Justin Lovett, Jackson County Prosecuting Attorney, and Pat Story, Jackson County
Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Stephen Frazier set fire to a camper occupied by his mother and step-

father. Frazier argues his convictions for two counts of aggravated arson are allied

offenses of similar import that he committed with the same animus, so the trial court

should have merged his convictions at sentencing. The state concedes Frazier is

correct and we agree. Because it is possible to commit R.C. 2909.02(A)(1) and (A)(2)

with the same conduct, the offenses are of similar import. And, the record shows

Frazier committed the offenses as part of a single act with the same animus. Thus, his

convictions for aggravated arson are allied offenses of similar import and the trial court

erred by failing to merge them.

                                              I. FACTS
Jackson App. No. 13CA5                                                                      2

       {¶2}   This case stems from a fire that damaged the camper where Sandra and

Jimmie Russell were temporarily living. On the night in question Frazier went to his

mother and step-father’s camper and started the fire with their propane tank. The fire

spread to the body of the camper while the Russells were still inside, but fortunately,

Jimmie Russell was able to put out the fire and no one was injured. The Jackson

County Grand Jury returned a two-count indictment against Frazier, charging him with

one count of aggravated arson in violation of R.C. 2909.02(A)(1), a first-degree felony,

and one count of aggravated arson in violation of R.C. 2909.02(A)(2), a second-degree

felony. Frazier pleaded not guilty and following a trial, the jury convicted him of both

counts.

       {¶3}   At the sentencing hearing, the trial court found that Frazier’s convictions

were allied offenses and the state agreed. Nevertheless, in its sentencing entry the

court imposed a sentence of eight years incarceration on each count, to be served

concurrently. This appeal followed.

                              II. ASSIGNMENT OF ERROR

       {¶4}   Frazier raises one assignment of error for our review:

       1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED
       SEPARATE SENTENCES UPON STEPHEN E. FRAZIER FOR
       OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT
       COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND
       SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES
       UNDER R.C. 2941.25.

                               III. STANDARD OF REVIEW
Jackson App. No. 13CA5                                                                                      3

        {¶5}    We review a trial court’s determination of whether offenses should merge

pursuant to R.C. 2941.25 de novo.1 State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-

5699, 983 N.E.2d 1245, ¶ 12, 28; State v. Love, 4th Dist. Hocking No. 13CA16, 2014-

Ohio-1603, ¶ 17. Accordingly we must independently determine, without deference to

the trial court’s conclusion, whether R.C. 2941.25 allows multiple convictions under the

facts in this case. Williams at ¶ 25-26.

                                       IV. LAW AND ANALYSIS

        {¶6}    “R.C. 2941.25 ‘codifies the protections of the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution and Section 10, Article I of the

Ohio Constitution, which prohibits multiple punishments for the same offense.’”

Williams at ¶ 13, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 23. “At the heart of R.C. 2941.25 is the judicial doctrine of merger;

merger is ‘the penal philosophy that a major crime often includes as inherent therein the

component elements of other crimes and that these component elements, in legal

effect, are merged in the major crime.’” Williams at ¶ 13, quoting State v. Botta, 27 Ohio

St.2d 196, 201, 271 N.E.2d 776 (1971).

        {¶7}    R.C. 2941.25 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


1
  In spite of the appellant’s framing the issue in terms of plain error, we do not apply that analysis because
the trial court indicated at the sentencing hearing the crimes were allied offenses of similar import and
mentioned only a single sentence.
Jackson App. No. 13CA5                                                                     4

       as to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶8}   “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy

Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing.

Thus, when the issue of allied offenses is before the court, the question is not whether a

particular sentence is justified, but whether the defendant may be sentenced upon all

the offenses.’” Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, at ¶

15, quoting Underwood at ¶ 27.

       {¶9}   In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Supreme Court of Ohio established a new two-step test for merger and held

that “R.C. 2941.25(A) requires the sentencing court to first determine ‘whether it is

possible to commit one offense and commit the other with the same conduct.’”

(Emphasis sic.) State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶

8, quoting Johnson at ¶ 48. “If the defendant’s conduct constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import, and

the court must then decide whether the offenses were committed with a single state of

mind, i.e., a single animus.” Miranda at ¶ 8, citing Johnson at ¶ 48-49. “If so, the

offenses are allied offenses of similar import that must be merged, and the defendant

can be punished for only one.” Miranda at ¶ 8, citing Johnson at ¶ 50.

       {¶10} “Alternatively, if it is not possible to commit the offenses with the same

conduct, or if the offenses were committed separately or with a separate animus, then

the court may sentence the defendant for all the offenses at issue.” Miranda at ¶ 9,

citing Johnson at ¶ 51.
Jackson App. No. 13CA5                                                                       5

       {¶11} Here, the state candidly concedes that Frazier’s convictions for

aggravated arson in violation of R.C. 2909.02(A)(1) and (A)(2) are allied offenses of

similar import committed with a single animus that the trial court should have merged at

sentencing. We agree.

       {¶12} R.C. 2909.02(A) provides in relevant part:

       No person, by means of fire or explosion, shall knowingly do any of the following:

       (1) Create a substantial risk of serious physical harm to any person other
       than the offender;

       (2) Cause physical harm to any occupied structure * * *.

       {¶13} As demonstrated by the facts of this case, R.C. 2909.02(A)(1) and (A)(2)

“are clearly offenses that may be committed by the same conduct * * *.” State v. Alcala,

6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 39. One could knowingly start a

fire that caused physical harm to an occupied structure, while creating a substantial risk

of serious harm to the same occupants. Thus, Frazier’s offenses are of similar import.

See id. In addition, it is apparent from the Russells’ testimony at trial that Frazier

committed the offenses with a single animus.

       {¶14} Sandra Russell testified that she saw Frazier “standin’ by our little fence

for our dogs. And he said it again, ‘Come out and talk to me.” And I picked up the

phone and called 911. * * * And while I was on the phone * * * I heard him say, ‘I’ll burn

this house and kill you both (unintelligible).’ (Crying) Ten seconds later the end of our

camper lit up in orange flames. He had set fire to the gas tank at the end of the

camper.”

       {¶15} Jimmie Russell also testified that he “heard [Frazier] hollerin’ to come out

and talk to him. So, we started to get up and he said it again. I looked out and seen
Jackson App. No. 13CA5                                                                               6

him standin’ there, and he got a lighter in his hand lighted. [Sandra] went and called

911, and I was putting my clothes on. Next thing I knowed the whole front of our

camper went up in flames.” He further testified that after Frazier “said he wanted to talk

to us twice, he said ‘I’ll burn you both up and be done with it, and kill you both.’”

       {¶16} Based on the record, it is clear Frazier ignited the camper as part of single

act with the same animus for both crimes, i.e. to harm its occupants.2 Consequently,

Frazier’s convictions for aggravated arson are allied offenses of similar import and the

trial court erred by failing to merge them at sentencing. Alcala, 6th Dist. Sandusky No.

S-11-026, 2012-Ohio-4318, at ¶ 39 (finding defendant’s convictions for aggravated

arson in violation of R.C. 2909.02(A)(1) and (A)(2) were allied offenses of similar import

that should have merged for sentencing where he threw single incendiary device at an

occupied home). Compare with State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-

Ohio-921, ¶ 46-48 (finding R.C. 2909.02(A)(1) and (A)(2) were not allied offenses of

similar import because defendant committed one offense against a person and one

offense against an occupied structure).

       {¶17} And even though the trial court ordered Frazier to serve his sentences

concurrently, “a defendant is prejudiced by having more convictions than are authorized

by law.” Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 31.

                                        V. CONCLUSION

       {¶18} Accordingly, we sustain Frazier’s sole assignment of error, reverse his

convictions and remand for a new sentencing hearing at which the state must elect

which of the allied offenses it will pursue for sentencing. State v. Whitfield, 124 Ohio


2
 This appeal does not address whether a person who ignites an occupied structure containing two or
more people can be convicted and sentenced on counts for each person.
Jackson App. No. 13CA5                                                                 7

St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25; State v. Carsey, 4th Dist. Athens Nos.

12CA37, 12CA38, 2013-Ohio-4482, ¶ 16.

                                                        JUDGMENT REVERSED AND
                                                              CAUSE REMANDED.
Jackson App. No. 13CA5                                                                        8

                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

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

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

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

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, 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.
