[Cite as State v. Humphrey, 2011-Ohio-5238.]


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


STATE OF OHIO,                                  :
                                                :
             Plaintiff-Appellee,                :         Case No: 10CA3150
                                                :
             v.                                 :
                                                :         DECISION AND
JEFFREY HUMPHREY,                               :         JUDGMENT ENTRY
                                                :
             Defendant-Appellant.               :         Filed: October 7, 2011



                                           APPEARANCES:

Eric W. Brehm, Brehm & Associates, Columbus, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.1


Kline, J.:

{¶1}         This case is on remand from the Supreme Court of Ohio.2 We affirmed

Jeffrey Humphrey’s convictions in State v. Humphrey, Ross App. No. 10CA3150, 2010-

Ohio-5950. The Supreme Court of Ohio accepted Humphrey’s discretionary appeal and

held the following: “The portion of the judgment of the court of appeals addressing

appellant’s second assignment of error below is vacated on the authority of State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314[,] and the cause is remanded to the

court of appeals for application of our decision in State v. Johnson.” State v. Humphrey,

128 Ohio St.3d 397, 2011-Ohio-1426, at ¶2. Therefore, we must apply Johnson and

1
  When this appeal was filed, Michael Ater was the Ross County Prosecuting Attorney.
2
  Neither Humphrey nor the state filed additional briefs after the Supreme Court of Ohio
remanded this case.
Ross App. No. 10CA3150                                                                 2


address whether Humphrey’s convictions for complicity to breaking and entering and

possession of criminal tools are allied offenses of similar import. However, because the

record does not contain enough evidence of Humphrey’s actual conduct, we must

overrule Humphrey’s assignment of error and affirm the judgment of the trial court.

                                            I.

{¶2}      To resolve Humphrey’s allied-offenses-of-similar-import claim, we must

examine his conduct while committing (1) complicity to breaking and entering and (2)

possession of criminal tools. Unfortunately, the record does not contain much evidence

of Humphrey’s actual conduct. We will, however, discuss the pertinent facts that we

could uncover. (For a more detailed procedural history, see Humphrey, 2010-Ohio-

5950, at ¶3-9.)

{¶3}      Humphrey drove an accomplice to Scioto Farm Supply “to do a B&E.”

Humphrey’s July 13, 2009 Statement to the Police. The accomplice broke into the

building while Humphrey remained in the car. Soon thereafter, an alarm sounded, and

Humphrey’s accomplice ran from the building. Humphrey then picked up his

accomplice and drove away from the crime scene.

{¶4}      The police stopped Humphrey’s car a short time later. After being pulled

over, Humphrey threw a walkie-talkie out the car window. The police soon recovered

the walkie-talkie, and Humphrey was apparently charged with possession of criminal

tools based on his possession of that walkie-talkie.

{¶5}      Humphrey’s accomplice threw a crowbar out the car window. There is no

evidence that Humphrey’s accomplice also had a walkie-talkie.
Ross App. No. 10CA3150                                                                      3


{¶6}       Humphrey gave the following statement to the police: “I Jeff Humphrey took

[my accomplice] to Scioto Farm Supply to do a B&E. I dropped him off & he brook [sic]

in & the alarm went off. He ran out of the building & I picked him up & the [police] pulled

us over.

{¶7}       “I Jeff Humphrey threw the radio out the window & [my accomplice] threw the

crowbar out the window.” Humphrey’s July 13, 2009 Statement to the Police.

{¶8}       Humphrey was charged with (1) complicity to breaking and entering, (2)

possession of criminal tools, and (3) tampering with evidence. Later, Humphrey filed a

motion to suppress the statement he gave to the police. After the trial court denied this

motion, Humphrey pled no contest to all three charges.

{¶9}       During Humphrey’s change-of-plea hearing, the trial court did not recount the

specific facts of Humphrey’s crimes. Instead, the trial court described each crime by

referencing the statutory language for each offense. At the same hearing, Humphrey’s

attorney argued that, in this case, breaking and entering and possession of criminal

tools should be considered allied offenses of similar import. The trial court, however,

disagreed and sentenced Humphrey to (1) twelve months in prison for complicity to

breaking and entering and (2) twelve months in prison for possession of criminal tools.

Humphrey will serve these two sentences concurrently to his five-year prison sentence

for tampering with evidence.

{¶10}      In Humphrey, 2010-Ohio-5950, we applied what was then the controlling law

and found that breaking and entering and possession of criminal tools are not allied

offenses of similar import. Humphrey appealed to the Supreme Court of Ohio, which
Ross App. No. 10CA3150                                                                     4


vacated the portion of our judgment addressing Humphrey’s second assignment of

error.

{¶11}     On remand, we must apply Johnson to the following assignment of error:

“THE TRIAL COURT DID ERR BY FAILING TO MERGE ALLIED OFFENSES OF

SIMILAR IMPORT. (T.p., p. 22)[.]”

                                            II.

{¶12}     Humphrey contends that the trial court should have merged his convictions

for complicity to breaking and entering and possession of criminal tools.

{¶13}     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). But “[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). This statute “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 (1980), 63 Ohio St.2d 84, 86, quoting State v. Roberts (1980), 62 Ohio St.2d

170, 172-73.

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

whether merger is appropriate. See Johnson at ¶44. “In determining whether offenses
Ross App. No. 10CA3150                                                                       5


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[,] (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]). * * *

{¶15}     “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.’ [State v.] Brown, 119 Ohio St.3d

447, 2008-Ohio-4569[,] at ¶50 (Lanzinger, J., dissenting).

{¶16}     “If the answer to both questions is yes, then the offenses are allied offenses

of similar import and will be merged.

{¶17}     “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.” Johnson at ¶48-51 (emphasis sic).

{¶18}     The Supreme Court of Ohio has instructed this court to apply Johnson to the

present case. See Humphrey, 2011-Ohio-1426, at ¶2. First, we find that complicity to

breaking and entering and possession of criminal tools can be committed by the same

conduct. Therefore, we must examine Humphrey’s conduct while he committed these

crimes. But here, there is not enough evidence in the record for us to determine
Ross App. No. 10CA3150                                                                      6


whether (1) complicity to breaking and entering and (2) possession of criminal tools

were committed by the same conduct. As a result, we must overrule Humphrey’s

assignment of error.

{¶19}     From the record below, we can discern that Humphrey was convicted of

possession of criminal tools based on his possession of the walkie-talkie. We can also

discern that Humphrey threw the walkie-talkie out the car window after being stopped by

the police. But there is no evidence as to how Humphrey used the walkie-talkie -- or

whether he used it at all -- during the break in at Scioto Farm Supply. It is reasonable to

infer that Humphrey might have used the walkie-talkie to communicate with his

accomplice during the break in. But, there is no evidence that Humphrey’s accomplice

also had a walkie-talkie. In fact, Humphrey’s statement to the police mentions only that

his accomplice threw a crowbar out the car window. Humphrey’s statement contains no

mention of a second walkie-talkie. Furthermore, when addressing the court, neither

Humphrey nor his attorney mentioned any walkie-talkie use related to the break in.

Thus, even though it is reasonable to infer that Humphrey used the walkie-talkie during

the break in, no additional evidence supports this inference.

{¶20}     If Humphrey had used the walkie-talkie during the commission of the break in,

we would be inclined to find that his breaking-and-entering and possession-of-criminal-

tools convictions are allied offenses of similar import. Clearly, Humphrey would have

committed those two offenses as a single act with a single state of mind. But under the

Johnson test, we must evaluate Humphrey’s actual conduct. Unfortunately, all we know

is that Humphrey possessed a walkie-talkie and tried to get rid of it after being stopped

by the police. This is not enough evidence to tie Humphrey’s possession-of-criminal-
Ross App. No. 10CA3150                                                                         7


tools conduct to his breaking-and-entering conduct. And we cannot vacate Humphrey’s

convictions based on a reasonable inference -- especially when we could also

reasonably infer that Humphrey used the walkie-talkie for some other criminal purpose.

{¶21}      At the trial court level, Humphrey 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). Because we do not have an adequate

record to evaluate Humphrey’s conduct, we must affirm his breaking-and-entering and

possession-of-criminal-tools convictions.

{¶22}      We recognize that this result may seem somewhat unfair. After all, the trial

court proceedings took place before Johnson changed the allied-offenses-of-similar-

import test. And under the old test, “‘courts [were] required to compare the elements of

offenses in the abstract without considering the evidence in the case[.]’” State v.

Murphy, Scioto App. No. 09CA3311, 2010-Ohio-5031, at ¶88, quoting State v.

Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, at ¶31. But even under the old test, trial

courts had to examine whether crimes were committed with a separate animus. See

State v. Rance, 85 Ohio St.3d 632, 638-39, 1999-Ohio-291. Therefore, even under

Rance, trial courts had to examine a defendant’s conduct before merging allied offenses

of similar import.
Ross App. No. 10CA3150                                                                       8


{¶23}     Finally, the Supreme Court of Ohio has instructed this court to apply Johnson,

and we “must take the record as [we] find[] it[.]” State ex rel. Faber v. Jones (1960), 95

Ohio St. 357, 362. At the trial court level, Humphrey’s attorney seemingly advanced an

allied-offenses-of-similar-import argument based on Humphrey’s actual conduct. As the

trial court judge noted, Humphrey’s attorney “appear[ed] to be arguing the specific facts

of this case.” Change of Plea and Disposition Transcript at 22. Because Humphrey’s

attorney advanced an argument based on Humphrey’s actual conduct, Humphrey’s

attorney should have ensured that the record contained enough evidence for adequate

appellate review.

{¶24}     Accordingly, for the foregoing reasons, we overrule Humphrey’s assignment

of error and affirm the judgment of the trial court.

                                                                JUDGMENT AFFIRMED.
Ross App. No. 10CA3150                                                                     9


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs
herein taxed.

      The Court finds 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.


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