[Cite as State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.]




            THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
        [Cite as State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.]
Criminal law — Allied offenses of similar import — R.C. 2941.25 — Conduct of
        accused to be considered — State v. Rance overruled — Felony murder,
        R.C. 2903.02(B), and child endangering, R.C. 2919.22(B)(1).
  (No. 2009-1481 — Submitted May 11, 2009 — Decided December 29, 2010.)
     CERTIFIED by the Court of Appeals for Hamilton County, Nos. C-080156
                            and C-080158, 2009-Ohio-2568.
                                 __________________
                               SYLLABUS OF THE COURT
1. When determining whether two offenses are allied offenses of similar import
        subject to merger under 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.)
                                 __________________
        BROWN, C.J.
                                    I. Certified Issue
        {¶ 1} The First District Court of Appeals certified the following issue
pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25:
“Are the elements of child endangering [set forth in R.C. 2919.22(B)(1)]
sufficiently similar to the elements of felony murder with child endangering as the
predicate offense that the commission of the murder logically and necessarily also
results in the commission of the child endangering?” (Bracketed material sic.)
        {¶ 2} We answer the certified question in the affirmative in this case and
reverse the judgment of the court of appeals.
                          II. Facts and Procedural Posture
                             SUPREME COURT OF OHIO




       {¶ 3} Fred Johnson, appellant, beat seven-year-old Milton Baker to
death. A jury found Johnson guilty of various crimes based upon his violence
against Milton. Two of those crimes are relevant to this appeal: felony murder
under R.C. 2903.02(B) (based upon the predicate offense of child endangering)
and child endangering under R.C. 2919.22(B)(1).
       {¶ 4} Johnson claims that the trial court should have merged the felony-
murder conviction and the child-endangering conviction under R.C. 2941.25 as
allied offenses. In Johnson’s direct appeal, the First District Court of Appeals
disagreed, reasoning that the felony-murder statute and the child-endangering
statute served different societal interests and therefore could not be considered
allied offenses.
       {¶ 5} The court of appeals recognized that its holding on this issue was
in conflict with a decision of the Fifth District Court of Appeals in State v. Mills,
Tuscarawas App. No. 2007 AP 07 0039, 2009-Ohio-1849. Mills was convicted of
felony murder under R.C. 2903.02(B) and child endangering under R.C.
2919.22(B)(1) for the death of a child in her custody during daycare. The Fifth
District Court of Appeals held that the offenses of felony murder and child
endangering were allied, reasoning that felony murder based upon the predicate
offense of child endangering was so aligned with the offense of child endangering
that one could not commit the murder without, at the same time, meeting the
elements of the child-endangering statute. 2009-Ohio-1849 at ¶ 229.
       {¶ 6} The court of appeals certified the conflict between its decision in
this case and the decision in Mills. We recognized the conflict. State v. Johnson,
123 Ohio St.3d 1405, 2009-Ohio-5031, 914 N.E.2d 203.
                                   III. Analysis
                                  A. Introduction
       {¶ 7} This case is yet another example “of how difficult our
jurisprudence on allied offenses has become.” State v. Williams, 124 Ohio St.3d




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381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 29 (Lanzinger, J., concurring in part and
dissenting in part). Once again, we are presented with two offenses and asked
whether they are allied offenses that merge according to R.C. 2941.25. Two
courts of appeals have examined the issue and reached different conclusions.
        {¶ 8} In 1999, when we decided State v. Rance (1999), 85 Ohio St.3d
632, 710 N.E.2d 699, we intended to create a test of ready application that would
produce clear, predictable results with regard to allied offenses.       Id. at 636.
Unfortunately, the standard announced in Rance has proven difficult to apply.
We take this opportunity to overrule Rance. In doing so, we return to the mandate
of R.C. 2941.25, which instructs courts to consider whether a defendant’s conduct
constituted two or more allied offenses of similar import. See Williams, 124 Ohio
St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, at ¶ 31-34 (Lanzinger, J., concurring
in part and dissenting in part).
        {¶ 9} We hold that Johnson’s two offenses were allied under R.C.
2941.25 because the same conduct constituted the commission of two offenses of
similar import under the facts of this case.
                    B. The history of the allied-offenses analysis
                 l. The law of allied offenses prior to State v. Rance
        {¶ 10} We laid the groundwork for analysis of allied offenses in State v.
Botta (1971), 27 Ohio St.2d 196, 56 O.O.2d 119, 271 N.E.2d 776. In Botta, we
explained that a jury could find that a defendant had committed multiple offenses
from a single occurrence when “all the essential elements of fact as to both
offenses had been proved.” Id. at 202. This preserved the integrity of the jury’s
fact-finding role. Id. at 204. But we held that as a matter of law, once the jury
returned its verdicts, the court could sentence only as to one offense and would
have to dismiss the other. Id. We held that a person could commit several
distinct and independent crimes “at the same time and in the same transaction,”




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yet when “in substance and effect but one offense has been committed,” the court
could sentence on only one offense and must dismiss the other. Id. at 202-203.
         {¶ 11} The reasoning of Botta was based upon the concept of “merger,”
described as “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.” Id. at 201.
         {¶ 12} In 1972, the General Assembly enacted R.C. 2941.25 in order to
guide courts in the determination of offenses subject to merger. State v. Logan
(1979), 60 Ohio St.2d 126, 131, 14 O.O.3d 373, 397 N.E.2d 1345 (“the statute has
attempted to codify the judicial doctrine * * * sometimes referred to as the
doctrine of merger, and other times as the doctrine of divisibility of offenses”
[footnotes omitted]).1
         {¶ 13} R.C. 2941.25 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.
         {¶ 15} “(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.”2


1. The statute does not use the term “merger” but instead refers to “allied offenses.” Over time,
the statutory term “allied offenses” has become the legal-vernacular shorthand for the types of
offenses subject to merger under R.C. 2941.25.

2. {¶ a} The Legislative Service Commission comments to this statute explain:
   {¶ b} “This section provides that when an accused’s conduct can be construed to amount to two
or more offenses of similar import, he may be charged with all such offenses but may be convicted
of only one. If his conduct constitutes two or more dissimilar offenses, or two or more offenses of




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         {¶ 16} R.C. 2941.25 has never been amended.
         {¶ 17} In 1976, we discussed the recently enacted R.C. 2941.25 in
Maumee v. Geiger (1976), 45 Ohio St.2d 238, 74 O.O.2d 380, 344 N.E.2d 133.
We explained that “[b]y the enactment of this section, the General Assembly
resolved the problems of common law procedure and practice in a practical and
realistic fashion, and in conformity with this court's decision in State v. Botta [27
Ohio St.2d 196, 56 O.O.2d 119, 271 N.E.2d 776].” Id. at 242. The purpose of
R.C. 2941.25, we noted, was to prevent “ ‘shotgun’ convictions.” Id., quoting the
Legislative Service Commission comments to R.C. 2941.25.
         {¶ 18} In 1979, we surveyed the cases applying R.C. 2941.25 and
developed a cohesive approach to analysis of allied offenses under that statute, an
approach that has been used (in modified form) up to today. Logan, 60 Ohio
St.2d at 128, 14 O.O.3d 373, 397 N.E.2d 1345. In interpreting R.C. 2941.25(A),
we held:
         {¶ 19} “[I]n order for two crimes to constitute allied offenses of similar
import, there must be a recognized similarity between the elements of the crimes
committed. The offenses and their elements must correspond to such a degree
that commission of the one offense will result in the commission of the other.


the same or similar kind but committed at different times or with a separate ‘ill will’ as to each,
then he may be charged with and convicted of all such offenses.
   {¶ c} “The basic thrust of the section is to prevent ‘shotgun’ convictions. For example, a thief
theoretically is guilty not only of theft but of receiving stolen goods, insofar as he receives, retains,
or disposes of the property he steals. Under this section, he may be charged with both offenses but
he may be convicted of only one, and the prosecution sooner or later must elect as to which
offense it wishes to pursue. On the other hand, a thief who commits theft on three separate
occasions or steals different property from three separate victims in the space, say, of 5 minutes,
can be charged with and convicted of all three thefts. In the first instance the same offense is
committed three different times, and in the second instance the same offense is committed against
three different victims, i.e. with a different animus as to each offense. Similarly, an armed robber
who holds up a bank and purposely kills two of the victims can be charged with and convicted of
one count of aggravated robbery and of two counts of aggravated murder. Robbery and murder
are dissimilar offenses, and each murder is necessarily committed with a separate animus, though
committed at the same time.” 1973 Legislative Service Commission comments to 1972
Am.Sub.H.B. No. 511.




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       {¶ 20} “In addition * * *, the defendant, in order to obtain the protection
of R.C. 2941.25(A), must show that the prosecution has relied upon the same
conduct to support both offenses charged.” Id.
       {¶ 21} We went on to examine the requirement of animus in R.C.
2941.25(B), concluding that “notwithstanding the fact that a defendant is charged
with two or more offenses of the same or similar kind he may be convicted of all
of them if he committed them separately, or if he possessed a separate ‘animus’ as
to each.” Id. at 129, 14 O.O.3d 373, 397 N.E.2d 1345.
       {¶ 22} Several years later, we summarized the then-familiar Logan two-
step approach to R.C. 2941.25 in State v. Blankenship (1988), 38 Ohio St.3d 116,
526 N.E.2d 816. “In the first step, the elements of the two crimes are compared.
If the elements of the offenses correspond to such a degree that the commission of
one crime will result in the commission of the other, the crimes are allied offenses
of similar import and the court must then proceed to the second step. In the
second step, the defendant's conduct is reviewed to determine whether the
defendant may be convicted of both offenses. If the court finds either that the
crimes were committed separately or that there was a separate animus for each
crime, the defendant may be convicted of both offenses.” Id. at 117.
       {¶ 23} The concurring opinion in Blankenship explained that in the first
step, a court determines “whether the nature of the elements of the offenses is
such that in some instances they may overlap, that is, that in certain instances,
both crimes may be committed by the same conduct,” and that the second step “is
based upon the conduct involved in a particular case, and the issue is whether in
fact both offenses were committed by the same conduct.” Id. at 119 (Whiteside,
J., concurring) (adding that the third step of the analysis concerned the
defendant’s animus).
       {¶ 24} In Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83, 549 N.E.2d
520, we performed the Blankenship allied-offenses analysis perfunctorily,




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focusing simply on whether the elements of the offenses overlapped based upon
the defendant’s conduct in that case. We were not compelled to compare the
elements of the offenses in the abstract, but instead simply held that “the elements
of these two crimes are so similar that the commission of one offense necessarily
results in the commission of the other offense as applied to the facts of this case.”
(Emphasis added.) Id. It is this analysis—the evaluation of separate offenses
based upon the facts of the case—that the court took issue with in State v. Rance,
85 Ohio St.3d at 637-638, 710 N.E.2d 699.
                                  2. State v. Rance
       {¶ 25} In State v. Rance, we took stock of the jurisprudence regarding the
analysis of allied offenses under R.C. 2941.25. We explained that a person may
be punished for multiple offenses arising from a single criminal act without
violating the Double Jeopardy Clauses of the United States and Ohio
Constitutions, so long as the General Assembly intended cumulative punishment.
Id., 85 Ohio St.3d at 635, 710 N.E.2d 699. The hazard, from a constitutional
standpoint, is that a court might impose a greater sentence than prescribed by the
legislature. Id. Thus, the lodestar for allied offenses is whether the “legislature
signals its intent to either prohibit or permit cumulative punishments for conduct
that may qualify as two crimes.” Id.
       {¶ 26} In Rance, we held that the General Assembly provided R.C.
2941.25 as a guide for courts to determine whether particular offenses were
intended to be allied. Id. at 635–636. The defendant is not placed in jeopardy
twice for the same offense so long as courts properly apply R.C. 2941.25 to
determine the intent of the General Assembly with regard to the merger of
offenses. Id.
       {¶ 27} We held that the applicable test was stated in Blankenship. Rance,
85 Ohio St.3d at 636, 710 N.E.2d 699. Yet we found that there was a problem
inherent in the Blankenship standard: it was unclear whether, under step one,



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courts “should contrast the statutory elements in the abstract or consider the
particular facts of the case.” Id. We determined that we should “settle this issue
for Ohio courts, and we believe[d] that comparison of the statutory elements in
the abstract is the more functional test, producing ‘clear legal lines capable of
application in particular cases.’ ”      Id., quoting Kumho Tire Co., Ltd. v.
Carmichael (1999), 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238. In so
holding we overruled the approach of Newark v. Vazirani, 48 Ohio St.3d 81, 549
N.E.2d 520, wherein the elements of offenses were evaluated on the facts of the
case to determine whether the crimes were allied. Rance at 638.
                 3. The allied-offenses analysis after State v. Rance
       {¶ 28} Cases following Rance have demonstrated both the difficulty in
applying the ethereal “in the abstract” analysis and the absurd results that would
result from strict adherence to it. In order to prevent injustice and to avoid absurd
results, the cases following Rance have suffered ad hoc revisions and work-
arounds to the Rance standard.
       {¶ 29} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181, ¶ 20, we acknowledged that “[d]espite trying to define a test ‘capable
of application in particular cases,’ Rance has produced inconsistent, unreasonable,
and, at times, absurd results.” We noted a few examples of the problems that
courts of appeals were having with the Rance analysis. For instance, the Fourth
District Court of Appeals had stated, “ ‘[W]e are aware of the practical result of
our conclusion: [the defendant] stands convicted of both creating a substantial risk
of physical harm and causing the death of [the victim] based on one occurrence. *
* * “[T]his result seems intuitively wrong, [but] the Supreme Court's holding in
Rance forces us to affirm.”‘ ” Id. at ¶ 19, quoting State v. Cox, Adams App. No.
02CA751, 2003-Ohio-1935, 2003 WL 1889479, quoting State v. Shinn (June 14,
2000), Washington App. Nos. 99CA29 and 99CA35, 2000 WL 781106.




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                                January Term, 2010




        {¶ 30} We explained the absurd result that would follow from a strict
application of Rance to Cabrales’s convictions. Id. at ¶ 24. Under such an
analysis, we would have been compelled to hold that possession of and trafficking
in the same controlled substance were not allied offenses, because the elements do
not align exactly, “even though common sense and logic tell us that in order to
prepare a controlled substance for shipping, ship it, transport it, deliver it, prepare
it for distribution, or distribute it, one must necessarily also possess it.” Id. We
went on to list several other cases in which we held that offenses were allied,
despite an inexact alignment of the elements, including theft and receiving stolen
property, kidnapping and rape, and aggravated robbery and kidnapping. Id. at ¶
25.
        {¶ 31} Ultimately, to avoid the attendant absurd consequences of a strict
application of the Rance standard, we held that the allied-offenses analysis “does
not require an exact alignment of elements” or “strict textual comparison.”
Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 26-27.
“Instead, if, in comparing the elements of the offenses in the abstract, 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.”
Id. at ¶ 26. Thus, we explicitly abandoned the rigid framework of an allied-
offenses analysis based upon exact alignment of the elements of a criminal
offense, yet we held that the offenses must be so similar that commission of one
would necessarily result in the commission of the other. Id.
        {¶ 32} Cabrales modified the Rance analysis; however, the Cabrales
standard failed to prevent the absurd results that obtained from comparing crimes
in the abstract.
        {¶ 33} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895
N.E.2d 149, we announced what Chief Justice Moyer later described as a
preemptive exception to the Rance/Cabrales analysis to prevent just such an



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absurd result. State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d
154, at ¶ 39 (Moyer, C.J., dissenting).
       {¶ 34} In Brown, the defendant stabbed her boyfriend once in the
abdomen. She was convicted of two forms of felonious assault, one for a use of
deadly weapon and one for causing serious bodily harm.              Deadly-weapon
felonious assault requires the use of a deadly weapon, but not serious bodily
harm, whereas the serious-physical-harm felonious-assault offense requires
serious physical harm, but no deadly weapon. R.C. 2903.12(A)(1) and (A)(2).
Thus, under the Cabrales/Rance analysis, Brown’s convictions would stand
because, in the abstract, the commission of one of type of felonious assault would
not necessarily result in the commission of the other. The absurdity is patent:
Brown could have been convicted for two felonious assaults for the same, single
stabbing under the Cabrales/Rance standard.
       {¶ 35} While acknowledging the Cabrales/Rance standard in Brown, we
declined to apply it. 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶
1. Instead, we formulated a preemptive exception that provided that if it was clear
that the General Assembly intended to protect the same societal interest in two
separate offenses, as in the case of the two sections of the felonious-assault
statute, the offenses were allied and should be merged for sentencing without
need for further analysis. Id. at ¶ 39–40. We held that courts need not perform
the R.C. 2941.25 analysis required by Rance/Cabrales “when the legislature's
intent is clear from the language of the statute.” Id. at ¶ 37.
       {¶ 36} This end-run around the existing allied-offenses analysis would not
be the last attempt at modifying the standard in order to prevent absurd results.
       {¶ 37} In State v. Winn, we again modified the allied-offenses analysis—
this time to do away with the requirement in Cabrales that the commission of one
crime would “necessarily” result in the commission of the other—by holding, as
Chief Justice Moyer characterized the holding in dissent, that it was enough if the




                                          10
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commission of one crime would “probably” result in the commission of the other.
121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶ 32–33 (Moyer, C.J.,
dissenting).
       {¶ 38} In Winn, we held that kidnapping and aggravated robbery were
allied offenses. Id. at ¶ 21. Although it was possible to advance hypothetical
examples under which an aggravated robbery would not also constitute a
kidnapping, the majority held that the elements of the offenses aligned because
“[i]t is difficult to see how the presence of a weapon that has been shown or used,
or whose possession has been made known to the victim during the commission
of a theft offense, does not also forcibly restrain the liberty of another.” Id. In
dissent, Chief Justice Moyer sharply criticized this holding. Id. at ¶ 33-34. The
chief justice argued that the majority had ignored Cabrales’s instruction that “ ‘if,
in comparing the elements of the offenses in the abstract, 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.’ (Emphasis
added.) Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 26.”
Id. at ¶ 27. The chief justice explained that the majority had changed the allied-
offenses standard again: “Instead of requiring that the commission of one offense
necessarily results in the commission of the other, the majority requires that the
commission of one offense probably results in the commission of the other. * * *
The unworkability of this standard is apparent. Trial courts will have little
guidance in determining when two offenses are similar enough that they should be
merged as allied offenses.” (Emphasis sic.) Id. at ¶ 33.
       {¶ 39} In State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911
N.E.2d 882, at ¶ 28-31, Justice Cupp wrote a concurring opinion echoing Chief
Justice Moyer’s concerns. Justice Cupp explained the difficulty with the allied-
offenses standard articulated by Winn: “Winn requires a subjective determination
about when hypothetical alternative ways of committing a crime are so unlikely to



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occur that they are improbable and, therefore, insufficient to defeat a conclusion
that the crimes are allied offenses under R.C. 2941.25.          * * * The Winn
approach—determining whether commission of one offense probably results in
commission of the other—requires a subjective determination about which
reasonable minds are likely to differ.” (Emphasis sic.) Id. at ¶ 30.
       {¶ 40} In summary, this court has gone to great efforts to salvage the
Rance standard. We have modified it and created exceptions to it in order to
avoid its attendant absurd results. However, our allied-offenses jurisprudence has
suffered as a consequence. Our cases currently (1) require that a trial court align
the elements of the offenses in the abstract—but not too exactly (Cabrales), (2)
permit trial courts to make subjective determinations about the probability that
two crimes will occur from the same conduct (Winn), (3) instruct trial courts to
determine preemptively the intent of the General Assembly outside the method
provided by R.C. 2941.25 (Brown), and (4) require that courts ignore the
commonsense mandate of the statute to determine whether the same conduct of
the defendant can be construed to constitute two or more offenses (Rance). The
current allied-offenses standard is so subjective and divorced from the language
of R.C. 2941.25 that it provides virtually no guidance to trial courts and requires
constant ad hoc review by this court.
                          C. State v. Rance is overruled
       {¶ 41} It is time to return our focus to the plain language and purposes of
the merger statute.
       {¶ 42} R.C. 2941.25 itself instructs us to look at the defendant’s conduct
when evaluating whether his offenses are allied. As Justice Lanzinger explained
in her dissenting opinion in Williams: “In spite of the * * * [statutory] language
emphasizing the importance of the defendant’s conduct, our current cases
analyzing allied offenses instruct us to jump immediately to the abstract
comparison of offenses charged without first considering the defendant's actual




                                         12
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conduct as established by the evidence.” Williams, 124 Ohio St.3d 381, 2010-
Ohio-147, 922 N.E.2d 937, at ¶ 34 (Lanzinger, J., dissenting).
       {¶ 43} We have consistently recognized that the purpose of R.C. 2941.25
is to prevent shotgun convictions, that is, multiple findings of guilt and
corresponding punishments heaped on a defendant for closely related offenses
arising from the same occurrence. Geiger, 45 Ohio St.2d at 242, 74 O.O.2d 380,
344 N.E.2d 133. This is a broad purpose and ought not to be watered down with
artificial and academic equivocation regarding the similarities of the crimes.
When “in substance and effect but one offense has been committed,” the
defendant may be convicted of only one offense. Botta, 27 Ohio St.2d at 203, 56
O.O.2d 119, 271 N.E.2d 776.
       {¶ 44} Given the purpose and language of R.C. 2941.25, and based on the
ongoing problems created by Rance, we hereby overrule Rance to the extent that
it calls for a comparison of statutory elements solely in the abstract under R.C.
2941.25. When determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.
       {¶ 45} In overruling Rance, we need not apply the test of Westfield v.
Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, because R.C.
2941.25 is a prophylactic statute that protects a criminal defendant’s rights under
the Double Jeopardy Clauses of the United States and Ohio Constitutions.
Because there is a constitutional protection underlying the proper application of
R.C. 2941.25, stare decisis does not compel us with the same force as it does in
other areas of the law. See, e.g., State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-
2424, 933 N.E.2d 753, ¶ 35-37.
          D. Prospective analysis of allied offenses under R.C. 2941.25
       {¶ 46} In determining whether two offenses should be merged, the intent
of the General Assembly is controlling. We determine the General Assembly’s



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intent by applying R.C. 2941.25, which expressly instructs courts to consider the
offenses at issue in light of the defendant’s conduct. We have long held that the
statute’s purpose is to prevent shotgun convictions, as explained in the statute’s
Legislative Service Commission comments. Geiger, 45 Ohio St.2d at 242, 74
O.O.2d 380, 344 N.E.2d 133. With these considerations in mind, we adopt the
following approach to determination of allied offenses.
       {¶ 47} Under R.C. 2941.25, the court must determine prior to sentencing
whether the offenses were committed by the same conduct. Thus, the court need
not perform any hypothetical or abstract comparison of the offenses at issue in
order to conclude that the offenses are subject to merger.
       {¶ 48} 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. Blankenship, 38 Ohio St.3d
at 119, 526 N.E.2d 816 (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 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.
       {¶ 49} If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.” Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,
dissenting).
       {¶ 50} If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.




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       {¶ 51} 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.
       {¶ 52} We recognize that this analysis may be sometimes difficult to
perform and may result in varying results for the same set of offenses in different
cases. But different results are permissible, given that the statute instructs courts
to examine a defendant’s conduct—an inherently subjective determination. Thus,
a scenario might arise as envisioned by the dissent in Winn, in which one court
finds that an aggravated robbery can be and was committed without also
committing a kidnapping, if, for instance, “a pickpocket points a gun at the
victim, but the victim does not know it, and therefore suffers no restraint of his
liberty,” while in another case, the court may determine that the commission of an
aggravated robbery in that case would also constitute a kidnapping, because “a
weapon that has been shown * * * during the commission of a theft offense * * *
forcibly restrain[ed] the liberty of another.” Winn, 121 Ohio St.3d 413, 2009-
Ohio-1059, 905 N.E.2d 154, at ¶ 29 (Moyer, C.J., dissenting) and at ¶ 21.
                            E. Application in This Case
       {¶ 53} Johnson was convicted of felony murder under R.C. 2903.02(B)
(based upon the predicate offense of child endangering) and child endangering
under R.C. 2919.22(B)(1), among other crimes. In this case, the crimes of felony
murder and child endangering are allied offenses.
       {¶ 54} The offenses were based upon the following conduct.             In the
incident at issue, Johnson was in a room alone with Milton while the boy’s
mother was in a different room watching television. The mother heard Johnson
yelling, heard a “thump” or “stomping,” and went to investigate. She found
Johnson yelling at Milton for mispronouncing a word while reading, and she
observed Johnson push Milton to the floor. The mother left the room. Shortly



                                         15
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thereafter, she heard another loud “thump” or “stomp.” When she went to the
room, she saw Milton shaking on the floor. Neighbors testified that they had
heard the boy crying and heard Johnson “whooping” the boy and yelling, “Do you
want pain? You want pain? I’ll give you pain!”
        {¶ 55} Milton’s death was a result of injuries sustained from blunt impact
to the head. Medical experts testified as to older injuries indicative of multiple
incidents of child abuse.
        {¶ 56} We agree with the court of appeals that the state relied upon the
same conduct to prove child endangering under R.C. 2919.22(B)(1) and felony
murder. Although there were arguably two separate incidents of abuse, separated
by time and brief intervention by Milton’s mother, the state obtained a conviction
for the first sequence of abuse under R.C. 2919.22(B)(3) for administering
excessive physical discipline. It was the second sequence of abuse for which the
state obtained a conviction under R.C. 2919.22(B)(1) for abuse that caused
serious physical harm. And the conviction for the second sequence of events
under R.C. 2919.22(B)(1) is the basis for the predicate offense of felony murder
under R.C. 2903.02(B).          Thus, the two offenses were based upon the same
conduct for purposes of R.C. 2941.25. 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. This beating was a discrete act that resulted in
the simultaneous commission of allied offenses, child abuse and felony murder.
        {¶ 57} Johnson’s beating of Milton constituted child abuse under R.C.
2919.22(B)(1).3 That child abuse formed the predicate offense for the felony




3. {¶ a} R.C. 2919.22(B)(1) provides:
   {¶ b} “(B) No person shall do any of the following to a child under eighteen years of age or a
mentally or physically handicapped child under twenty-one years of age:
   {¶ c} “(1) Abuse the child.”




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murder under R.C. 2903.02(B).4 The conduct that qualified as the commission of
child abuse resulted in Milton’s death, thereby qualifying as the commission of
felony murder.
                                       IV. Conclusion
        {¶ 58} For the foregoing reasons, we answer the certified issue in the
affirmative and reverse the judgment of the court of appeals.                     The case is
remanded to the trial court for further proceedings consistent with this opinion.
                                                                          Judgment reversed
                                                                        and cause remanded.
        PFEIFER and LUNDBERG STRATTON, JJ., concur.
        O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., concur in the
syllabus and judgment.
                                   __________________
        O’CONNOR, J., concurring in judgment.
        {¶ 59} I agree with the majority that the analysis set forth in State v.
Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, for determining whether two
or more offenses are allied offenses of similar import pursuant to R.C. 2941.25
has proven difficult to apply. I write separately because I do not believe that the
majority opinion clearly sets forth the appropriate considerations for determining
whether offenses arise out of the same conduct and should be merged pursuant to
R.C. 2941.25.
        {¶ 60} R.C. 2941.25 provides:
        {¶ 61} “(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or



4. {¶ a} R.C. 2903.02(B) provides:
   {¶ b} “No person shall cause the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the first or second
degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.”




                                               17
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information may contain counts for all such offenses, but the defendant may be
convicted of only one.
        {¶ 62} “(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.”
        {¶ 63} Much of the confusion is caused by the statutory terminology
“allied offenses of similar import.”    Thus, our analysis must begin with an
understanding of this term.
        {¶ 64} In practice, allied offenses of similar import are simply multiple
offenses that arise out of the same criminal conduct and are similar but not
identical in the significance of the criminal wrongs committed and the resulting
harm.   R.C. 2941.25 permits a defendant to be charged with, and tried for,
multiple offenses based on the same conduct but permits only one conviction
based on conduct that results in similar criminal wrongs that have similar
consequences.
        {¶ 65} Our decisions have described the two features of allied offenses of
similar import together, see, e.g., State v. Cabrales, 118 Ohio St.3d 54, 2008-
Ohio-1625, 886 N.E.2d 181, ¶ 30 (offenses are allied offenses of similar import if
commission of the first offense necessarily results in commission of the second).
But it may aid understanding to address the statutory terms “allied offenses” and
“of similar import” as separate components of the standard in R.C. 2941.25(A).
        {¶ 66} Under the later formulations of State v. Winn, 121 Ohio St.3d 413,
2009-Ohio-1059, 905 N.E.2d 154, and State v. Harris, 122 Ohio St.3d 373, 2009-
Ohio-3323, 911 N.E.2d 882, offenses are “allied” when their elements align to
such a degree that commission of one offense would probably result in the
commission of the other offense.




                                        18
                                January Term, 2010




       {¶ 67} Offenses are of “similar import” when the underlying conduct
involves similar criminal wrongs and similar resulting harm.
       {¶ 68} The question becomes how to determine whether offenses that
stem from the same conduct result in offenses of “similar import” within the
meaning of R.C. 2941.25. The significant amount of litigation regarding this
question since Rance was decided strongly suggests that instead of examining the
elements of the offense solely in the abstract, the analysis under R.C. 2941.25(A)
should also examine the defendant’s conduct in the context of determining
whether the offenses are of similar import. Rance, inasmuch as it requires a
comparison of the elements of the offenses solely in the abstract, should be
overruled. A defendant may be indicted for multiple offenses that arise out of the
same conduct, R.C. 2941.25(A), and the trier of fact may find the defendant guilty
of multiple offenses that arise out of the same conduct without running afoul of
R.C. 2941.25. The trial court does not consider a defendant’s merger argument
until the state has proven all of the elements of each offense beyond a reasonable
doubt. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
¶18, citing Ohio v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct. 2536, 81
L.Ed.2d 425, and quoting State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,
819 N.E.2d 1047, ¶ 135 (“In cases in which the imposition of multiple
punishments is at issue, R.C. 2941.25(A)’s mandate that a defendant may be
‘convicted’ of only one allied offense is a protection against multiple sentences
rather than multiple convictions. * * * Thus, to ensure that there are not improper
cumulative punishments for allied offenses, courts must be cognizant that R.C.
2941.25(A) requires that ‘the trial court effects the merger at sentencing’ ”).
       {¶ 69} Because the trial court does not consider a defendant’s merger
argument until after the trier of fact has determined that the defendant is guilty of
multiple offenses, the trial court’s consideration of whether there should be
merger is aided by a review of the evidence introduced at trial.



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       {¶ 70} At trial in this case, the state relied on the same evidence to
establish that Johnson’s conduct—severely beating Milton and causing his
death—violated both the child-endangering statute (R.C. 2919.22(B)(1)) and the
felony-murder statute (R.C. 2903.02(B)).         Although there may have been
alternative theories that the state considered in pursuing Johnson for endangering
and ultimately killing Milton, we are constrained by the record before us and the
legal arguments raised in the briefs. Based on that record and those arguments, I
am compelled to conclude that the convictions in this case arose from the same
conduct that involves similar criminal wrongs and similar resulting harm and,
accordingly, are allied offenses of similar import that must merge for the purpose
of sentencing pursuant to R.C. 2941.25(A).
       {¶ 71} Accordingly, I concur in the judgment of the majority to reverse
and remand for further consideration.
       PFEIFER and CUPP, JJ., concur in the foregoing opinion.
                               __________________
       O’DONNELL, J., separately concurring.
       {¶ 72} In this case, the court is presented with the opportunity to
reconsider our allied-offenses jurisprudence. I concur in the determination that
this court’s decision in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699,
should be overruled and agree with the majority that the court’s current test of
comparing the elements of offenses in the abstract when determining whether two
or more offenses are allied offenses of similar import has proven unworkable.
       {¶ 73} In accordance with the express language of R.C. 2941.25, the
conduct of a defendant should be considered in determining whether two or more
offenses constitute allied offenses of similar import.
       {¶ 74} R.C. 2941.25 provides:
       {¶ 75} “(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or




                                         20
                                January Term, 2010




information may contain counts for all such offenses, but the defendant may be
convicted of only one.
       {¶ 76} “(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.”
       {¶ 77} In State v. Rance, the court articulated a new test for determining
pursuant to R.C. 2941.25 whether two or more offenses are allied offenses of
similar import, which instructed courts to compare the statutory elements of the
offenses in the abstract, and modified our former analysis in Newark v. Vazirani
(1990), 48 Ohio St.3d 81, 83, 549 N.E.2d 520, in which we compared the
elements of the offense by reference to the particular facts alleged in the
indictment (“Given the facts of this case, we find that [the two crimes charged are
allied offenses of similar import]”).
       {¶ 78} Focusing on the elements of an offense in the abstract, without
considering the defendant’s conduct, has proven to be unworkable and has
resulted in widespread confusion in the legal community among practitioners and
members of the judiciary, spawning litigation to resolve this issue. That test fails
to comport with the express statutory language of R.C. 2941.25(A), which directs
courts to consider whether “the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import” (emphasis added), and
R.C. 2941.25(B), which directs courts to consider whether the defendant’s
conduct constitutes two or more offense of dissimilar import or whether his
conduct results in two or more offenses of the same or similar kind, committed
separately or with separate animus. Thus, the proper inquiry is not whether the
elements align in the abstract as stated in Rance but, rather, whether the
defendant’s conduct, i.e., the actions and behavior of the defendant, results in the



                                        21
                                 SUPREME COURT OF OHIO




commission of two or more offenses of similar or dissimilar import or two or
more offenses of the same or similar kind committed separately or with a separate
animus as to each. See Black’s Law Dictionary (9th Ed.2009) 336 (“conduct”
defined as “[p]ersonal behavior, whether by action or inaction”).
        {¶ 79} Consider the crimes of rape and kidnapping, for example. The
elements of each are different.           Rape, as defined in R.C. 2907.02(A)(2), is
committed when a defendant engages in sexual conduct with another and the
defendant purposefully compels the other person to submit by force or threat of
force. Kidnapping, as defined in R.C. 2905.01(A)(4), is committed when by
force, threat, or deception, or, in the case of a victim under the age of 13 or
mentally incompetent, by any means, a defendant removes another from the place
where the other person is found or restrains the liberty of the other with the
purpose to engage in sexual activity with the victim against the victim’s will.
        {¶ 80} Inevitably, every rapist necessarily kidnaps the victim, because the
conduct of engaging in sexual conduct by force results in a restraint of the
victim’s liberty. Thus, in those circumstances, the conduct of the defendant can
be construed to constitute two offenses — rape and kidnapping — and an
indictment may contain counts for each, but the defendant may be convicted of
only one.
        {¶ 81} In a different factual situation, however, if the state presented
evidence that a defendant lured a victim to his home by deception, for example,
and then raped that victim, an indictment may contain separate counts for the rape
and for the kidnapping. In this hypothetical, different conduct — the luring of the
victim by deception and the separate act of rape — results in two offenses being
committed separately; therefore, the indictments may contain counts for both
offenses and the defendant may be convicted of both.5 See, e.g., State v. Ware

5. Of course, it would be possible to indict on two counts of kidnapping, one for luring the victim
and one for the rape itself.




                                                22
                                     January Term, 2010




(1980), 63 Ohio St.2d 84, 17 O.O.3d 51, 406 N.E.2d 1112 (the defendant could be
convicted of both kidnapping and rape because he lured the victim to his home by
deception before raping her).
          {¶ 82} Thus, the one-size-fits-all Rance test directing an abstract
comparison of elements failed to consider factual differences in the manner of
commission of the offenses because it never factored the conduct of the actor and
never allowed two offenses to be allied in some cases but not allied in other
cases.6
          {¶ 83} For the reasons stated, I concur in the decision to reverse and
remand this matter for further consideration, and I concur in the syllabus.
          LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                                    __________________
          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
          Law Offices of Ravert J. Clark and Lindsey R. Gutierrez, for appellant.
          Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Franklin County Prosecuting Attorney.
          Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant
State Public Defender, urging reversal for amicus curiae Ohio Public Defender.


6. When the court decided State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29,
¶ 89, which involved whether kidnapping and rape were allied offenses of similar import, the court
concluded that the offenses were committed with the same animus and thus should have merged,
but the opinion never cited Rance. Appellate courts have since noted the absence of Rance and the
difficulty of its application. See In re Rashid, 163 Ohio App.3d 515, 2005-Ohio-4851, 839
N.E.2d 411, ¶ 24-25 (declining to apply Rance after State v. Adams and noting, at ¶ 33, that
“[u]nder the Rance analysis, [the defendant] could never successfully claim, regardless of the facts
of his case, that kidnapping and rape are allied offenses of similar import”); State v. Greathouse,
2d Dist. No. 21536, 2007-Ohio-2136, ¶ 38, 2007 WL 1297181 (after State v. Adams, “[c]ourts
have questioned whether Rance is still the correct method for deciding if crimes are allied
offenses”).




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