[Cite as State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699.]




           THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
        [Cite as State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699.]
Criminal law—R.C. 2941.25—Merger of allied offenses—Standard of review—De
      novo.
  (No. 2011-0619—Submitted March 21, 2012—Decided December 6, 2012.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 94616, 2011-Ohio-0925.
                                   _________________
        PFEIFER, J.
        {¶ 1} The issue we address in this case is whether an appellate court
should apply a de novo or an abuse-of-discretion standard when reviewing a trial
court’s determination of whether a defendant’s offenses should merge pursuant to
R.C. 2941.25. We hold that a reviewing court should review the trial court’s R.C.
2941.25 determination de novo.
                          Factual and Procedural Background
        {¶ 2} The alleged victim in this case, J.W., was the eight-year-old niece of
defendant-appellee, Jason Williams. On June 22, 2009, Williams and his niece
were among a group of people gathered at the home of the victim’s grandmother.
J.W. stayed outside to play with bubbles after the other children—her sister,
brother, and two cousins—had gone inside the house. J.W. testified that she and
the defendant went behind her grandmother’s car so she could show him a
bumper sticker. While they were behind her grandmother’s car, Williams told
J.W. to sit down on his lap; he pulled down the front of her skirt and her “unders”
and put his mouth on her “private.”
        {¶ 3} She testified that Williams then took her by the hand and “took me
between the two houses”—her grandmother’s house and a neighbor’s house, that
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Williams was pulling her arm and she could not get away, and that she did not
want to go between the houses with him. J.W. stated that when they got between
the houses, Williams picked her up, put her on the ground and, while both were
fully clothed, “put his private part on mine” and was “bouncing” on top of her.
J.W. then heard her aunt Ja’Dean calling for her and told the defendant that she
had to go. When the defendant got up, J.W. ran to her aunt, who was on the
porch.       She told her aunt, mother, and grandmother what had happened.
Eventually, police officers and medical personnel interviewed her.
         {¶ 4} Williams was indicted on six counts. Counts One and Two charged
him with forcible rape of a child in violation of R.C. 2907.02(A)(1)(b), for the
digital and oral penetration of the victim’s vagina, respectively; Counts Three,
Four, and Five charged him with gross sexual imposition under R.C.
2907.05(A)(4) for the acts of kissing the victim’s neck, rubbing his penis on her,
and placing his hand on her thigh and genital area. Count Six charged Williams
with kidnapping, consisting of the unlawful restraint of J.W.’s liberty to facilitate
the sexual assaults.
         {¶ 5} The rape and the kidnapping charges included sexually-violent-
predator specifications. The kidnapping charge also included a sexual-motivation
specification. Williams elected to have the sexual-predator specifications tried to
the court.
         {¶ 6} The jury convicted Williams on all six counts. The trial court
dismissed the sexual-motivation specification as “legally irrelevant” and found
Williams not guilty of the sexual-predator specifications after a separate hearing.
         {¶ 7} Prior to imposing sentence, the trial court considered whether Ohio’s
multiple-count statute, R.C. 2941.25, required a merger of offenses. The court
found that neither the two rapes nor the three separate acts of gross sexual
imposition merged. With regard to the kidnapping and rape charges, the trial
court stated:




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       [C]learly the pressing of his body on top of this little girl so she
       can’t move is a kidnapping, and that’s clearly a merger situation.
       But I want to talk about the kidnapping in the sense that we heard
       evidence about it which was that he took her arm and pulled her
       along and got her behind the garage. I believe under the multiple
       count statute, this is separate conduct because, let's face it, had he
       done that and got her behind the garage and then she got away, we
       would still have a kidnapping.
               And I think it's fair to say this falls into his conduct
       constituting two or more offenses of dissimilar import, as between
       the rapes and the kidnapping, and there is the fact that this conduct
       was committed separately. First he escorted and kidnapped her,
       and secondly, he raped her.
               And he had a separate animus as to each kind of conduct,
       as between the rape and the kidnapping, there’s a separate animus.
       So I don't think there is a merger there.


       {¶ 8} The trial court sentenced Williams to 25 years to life in prison,
consisting of 25 years for each rape count, five years for each sexual-imposition
count, and ten years for the kidnapping count, all to run concurrently.
       {¶ 9} Williams appealed to the Eighth District Court of Appeals. The
court affirmed all the findings of guilt but reversed the trial court’s judgment
regarding the merger of the kidnapping and rape offenses. The appellate court
held that the convictions for rape and kidnapping were allied offenses of similar
import that should have merged at sentencing:




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       [A]ppellant maintains that the kidnaping conviction should have
       been merged as an allied offense. The State maintains that this also
       constituted a separate act with a distinct animus. However, we find
       the same conduct supports appellant's rape and kidnaping
       conviction.    The indictment alleged that the kidnaping was
       sexually motivated and therefore appellant's animus for the
       kidnaping and rape was the same or, stated differently, the rape
       and kidnaping were a single act, committed with a single state of
       mind. Accordingly, the fourteenth assignment of error is sustained
       in part and this matter must be remanded to the trial court for
       further proceedings concerning the allied offenses.


State v. Williams, 8th Dist. No. 94616, 2011-Ohio-925, ¶ 61.
       {¶ 10} The state appealed to this court, raising a single proposition of law:
“A trial court’s determination that offenses should not merge pursuant to R.C.
2941.25 should be affirmed absent an abuse of discretion.”
       {¶ 11} The cause is before this court upon the acceptance of a
discretionary appeal. State v. Williams, 129 Ohio St.3d 1474, 2011-Ohio-4751,
953 N.E.2d 841.
                                  Law and Analysis
       {¶ 12} The state contends that an appellate court should affirm, absent an
abuse of discretion, a trial court’s determination of whether offenses should merge
pursuant to R.C. 2941.25. The court below employed a de novo review of the
trial court’s determination.    We conclude that a de novo review of an R.C.
2941.25 determination is appropriate.
                                    R.C. 2941.25
       {¶ 13} R.C. 2941.25 “codifies the protections of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution and Section 10,




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Article I of the Ohio Constitution, which prohibits multiple punishments for the
same offense.” 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.” State v. Botta, 27 Ohio
St.2d 196, 201, 271 N.E.2d 776 (1971).
       {¶ 14} The statute provides:


               (A) Where the same conduct by defendant can be construed
       to constitute two or more allied offenses of similar import, the
       indictment or information may contain counts for all such offenses,
       but the defendant may be convicted of only one.
               (B) Where the defendant’s conduct constitutes two or more
       offenses of dissimilar import, or where his conduct results in two
       or more offenses of the same or similar kind committed separately
       or with a separate animus as to each, the indictment or information
       may contain counts for all such offenses, and the defendant may be
       convicted of all of them.


       {¶ 15} 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.” Underwood at ¶ 27.
                             From Rance to Johnson
       {¶ 16} The method for courts to employ in determining whether two
crimes constitute allied offenses of similar import has evolved; in the most recent




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case to address the issue, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
942 N.E.2d 1061, this court instituted an analysis more dependent on the conduct
of the defendant than the analysis it had instructed courts to employ in earlier
cases. It is largely because of this increased reliance upon the facts of particular
cases that the state argues that appellate courts should employ an abuse-of-
discretion standard in reviewing trial courts’ R.C. 2941.25 determinations.
       {¶ 17} This court established a two-part test for analyzing allied-offense
issues in State v. Blankenship, 38 Ohio St.3d 116, 117, 526 N.E.2d 816 (1988):


       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 can 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.


(Emphasis sic.)
       {¶ 18} It is in regard to the first element of that test—the comparison of
the elements of the two offenses—that there was confusion among courts about
the role the facts of the particular case played in the analysis. This court set out to
resolve that issue in State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999);
the solution was an analysis that compared the statutory language of the two
offenses in a vacuum to determine whether one necessarily included the elements
of the other:




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               A problem inherent in the application of the test for
        similar/dissimilar import is whether the court should contrast the
        statutory elements in the abstract or consider the particular facts of
        the case. We think it useful to settle this issue for Ohio courts, and
        we believe that comparison of the statutory elements in the abstract
        is the more functional test, producing “clear legal lines capable of
        application in particular cases.” Kumho Tire Co., Ltd. v.
        Carmichael (1999), 526 U.S. [137, 148], 119 S.Ct. 1167, 1174,
        143 L.Ed.2d 238, 250.


Id. at 636.
        {¶ 19} Within a decade, this court realized that Rance had not resolved the
uneven application of the allied-offenses test or the confusion surrounding it:
“Despite trying to define a test ‘capable of application in particular cases,’ Rance
has produced inconsistent, unreasonable, and, at times, absurd results.” State v.
Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 20.               In
Cabrales, this court attempted to clarify Rance but clung to the abstract
comparison of elements while attempting to institute a less-rigid test:


               It is clear that interpreting Rance to require a strict textual
        comparison under R.C. 2941.25(A) conflicts with legislative intent
        and causes inconsistent and absurd results.        Accordingly, we
        clarify that in determining whether offenses are allied offenses of
        similar import under R.C. 2941.25(A), Rance requires courts to
        compare the elements of offenses in the abstract, i.e., without
        considering the evidence in the case, but does not require an exact
        alignment of elements.




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Id. at ¶ 26-27.
        {¶ 20} Two years later, in Johnson, this court abandoned the abstract
analysis entirely, overruled Rance, and held, “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.” Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. Thus, this court held that
in making an allied-offenses determination, a court should not employ an abstract
analysis, but instead should consider the statutory elements of each offense in the
context of the defendant’s conduct.
                   The Effect of Johnson on Appellate Review
        {¶ 21} This renewed emphasis on the defendant’s conduct in an R.C.
2941.25(A) analysis—whether offenses are allied offenses of similar import—
does not make that analysis a pure question of fact requiring deference to the trial
court. The consideration of a defendant’s conduct in an R.C. 2941.25 analysis is
nothing new—the defendant’s specific conduct has always been a part of an R.C.
2941.25(B) determination as to whether the offenses were committed separately
or committed with a separate animus. The second part of the Blankenship test
requires a consideration of factors specific to an individual’s conduct.
        {¶ 22} In State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979),
paragraph five of the syllabus, this court held that “[a] rape conviction, pursuant
to R.C. 2907.02(A)(1), and a kidnapping conviction, pursuant to R.C.
2905.01(A)(4), are allied offenses of similar import within the meaning of R.C.
2941.25(A), and cannot be punished multiply when they are neither committed
separately nor with a separate animus as to each within the meaning of R.C.
2941.25(B).” Despite the state’s urging that Johnson should change how
appellate courts review trial courts’ determinations, whether kidnapping and rape
are allied offenses—the first part of the Blankenship test—was not part of the trial




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court’s analysis in this case. The trial court’s decision in this case was based upon
whether Williams’s acts occurred separately or had a separate animus. That is,
the trial court made its determination based upon the second Blankenship factor,
while Johnson concerns the first Blankenship factor.
       {¶ 23} This court’s jurisprudence regarding the allied offenses of rape and
kidnapping illustrates that a determination that addresses the specific conduct of
the defendant does not give rise to an abuse-of-discretion standard for reviewing
courts. In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus,
this court established guidelines to determine whether kidnapping and rape are
committed with a separate animus so as to permit separate punishment under R.C.
2941.25(B):


               (a) Where the restraint or movement of the victim is merely
       incidental to a separate underlying crime, there exists no separate
       animus sufficient to sustain separate convictions; however, where
       the restraint is prolonged, the confinement is secretive, or the
       movement is substantial so as to demonstrate a significance
       independent of the other offense, there exists a separate animus as
       to each offense sufficient to support separate convictions;
               (b) Where the asportation or restraint of the victim subjects
       the victim to a substantial increase in risk of harm separate and
       apart from that involved in the underlying crime, there exists a
       separate animus as to each offense sufficient to support separate
       convictions.


       {¶ 24} In cases like Logan, State v. Ware, 63 Ohio St.2d 84, 406 N.E.2d
1112 (1980), and State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817
N.E.2d 29, this court applied the law set forth in Logan and Price to the facts of




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individual cases to determine whether R.C. 2941.25 applied but never reviewed
the trial court’s decision using an abuse-of-discretion standard.
       {¶ 25} Appellate courts apply the law to the facts of individual cases to
make a legal determination as to whether R.C. 2941.25 allows multiple
convictions. That facts are involved in the analysis does not make the issue a
question of fact deserving of deference to a trial court:


       [A] review of the evidence is more often than not vital to the
       resolution of a question of law. But the fact that a question of law
       involves a consideration of the facts or the evidence does not turn
       it into a question of fact. Nor does that consideration involve the
       court in weighing the evidence or passing upon its credibility.


O'Day v. Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (1972).
       {¶ 26} As in cases involving review of motions to suppress, “the appellate
court must * * * independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal standard.” State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In cases like
this, it is the jury making factual determinations, and the reviewing court owes
deference to those determinations, but it owes no deference to the trial court’s
application of the law to those facts.
       {¶ 27} Finally, de novo appellate review produces a more consistent
jurisprudence. As the United States Supreme Court said of de novo review of
probable-cause and reasonable-suspicion determinations in cases involving
warrantless searches, a “sweeping deference” would lead to “varied results [that]
would be inconsistent with the idea of a unitary system of law.” Ornelas v.
United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
Moreover, “legal rules * * * acquire content only through application.




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Independent review is therefore necessary if appellate courts are to maintain
control of, and to clarify, * * * legal principles.” Id. This court’s endeavor to
provide clarity in the area of R.C. 2941.25 determinations is a continuing one.
                                       Conclusion
        {¶ 28} An appellate court should apply a de novo standard of review in
reviewing a trial court’s R.C. 2941.25 merger determination. The court below
employed that standard. Since the state demands reversal based only upon its
assertion that the court below should have applied an abuse-of-discretion standard
of review, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
        O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
        O’DONNELL, J., dissents.
                                    ________________
        O’DONNELL, J., dissenting.
        {¶ 29} In my view, the determination of whether two offenses are allied
offenses of similar import is a mixed question of law and fact and is made by the
trial judge at sentencing. Hence, the statement of the majority that “[i]n cases like
this, it is the jury making factual determinations, and the reviewing court owes
deference to those determinations, but it owes no deference to the trial court’s
application of the law to those facts,” majority opinion at ¶ 26, confuses the work
of a jury with that of the court.
        {¶ 30} First of all, the jury is not involved in an allied-offense
determination.    The majority then compounds the error by leaping to the
conclusion that “[a]n appellate court should apply a de novo standard of review in
reviewing a trial court’s R.C. 2941.25 merger determination.” Majority opinion
at ¶ 28. However, because it is a mixed question of law and fact, an appellate
court reviews the legal conclusion of whether the offenses are allied using a de




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novo standard, but because the trial judge is the fact-finder, the trial court’s
determinations as to the facts are not reviewable de novo. In fact, the appellate
court should defer to the factual findings of the trial court, provided they are
supported by some competent, credible evidence. See State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
       {¶ 31} Accordingly, I respectfully dissent.
                               ________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen
Sobieski, Assistant Prosecuting Attorney, for appellant.
       Jonathan N. Garver, for appellee.
                           _______________________




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