[Cite as State v. Washington, 2012-Ohio-2117.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                        C.A. No.      11CA010015

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DAVID T. WASHINGTON                                  COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   09CR078387

                                 DECISION AND JOURNAL ENTRY

Dated: May 14, 2012



        WHITMORE, Presiding Judge.

        {¶1}    Defendant-Appellant, David Washington, appeals from his convictions in the

Lorain County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                 I

        {¶2}    This Court recounted the facts underlying this matter in State v. Washington, 9th

Dist. Nos. 10CA009767 & 10CA009768, 2011-Ohio-1149. Relevant to this appeal, a jury found

Washington guilty of failure to comply, in violation of R.C. 2921.331(B), and obstructing

official business, in violation of R.C. 2921.31(A).       The trial court originally sentenced

Washington on both counts, as well as other counts, and Washington appealed. After the trial

court sentenced Washington, but before this Court determined his appeal, the Ohio Supreme

Court released State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Rather than apply

Johnson in the first instance, this Court reversed Washington’s sentence and remanded the matter
                                                2


so that the trial court could consider whether any of his offenses were allied offenses of similar

import under the new law set forth in Johnson. Washington at ¶ 22-28.

       {¶3}    The trial court held a resentencing hearing on May 12, 2011, at which the court

found that Washington could be convicted of both failure to comply and obstructing official

business. On May 18, 2011, the court issued a new sentencing entry, sentencing Washington to

five years on his failure to comply charge and one year on his obstructing official business

charge. The court ordered the sentences to run consecutively.

       {¶4}    Washington now appeals from his convictions and raises three assignments of

error for our review. For ease of analysis, we consolidate two of the assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED IN IMPOSING SENTENCES FOR BOTH
       FAILURE TO COMPLY, AND OBSTRUCTING OFFICIAL BUSINESS,
       WHICH ARE ALLIED OFFENSES OF SIMILAR IMPORT.

       {¶5}    In his first assignment of error, Washington argues that the trial court erred by

sentencing him to allied offenses of similar import. We agree.

       {¶6}    Ohio’s allied offense statute provides as follows:

       (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.

R.C. 2941.25. Thus, two or more offenses arising from the same conduct and similar import

only may result in one conviction. R.C. 2941.25(A). Two or more offenses may result in

multiple convictions, however, if: (1) they are offenses of dissimilar import; (2) they are
                                                 3


separately committed; or (3) the defendant possesses a separate animus as to each.             R.C.

2941.25(B).

        {¶7}   “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, at syllabus. The statutory elements of each offense are not

to be compared in the abstract, severed from the particular facts underlying the offenses. Id.,

overruling State v. Rance, 85 Ohio St.3d 632 (1999), syllabus (requiring textual comparison of

elements in the abstract before a defendant’s conduct will be considered). Instead, all of the

justices of the Ohio Supreme Court have agreed that the conduct of the accused must be the

starting point in any allied offense analysis. Johnson at ¶ 47-48; ¶ 64 (O’Connor, J., concurring);

¶ 78 (O’Donnell, J., concurring).

        {¶8}   In his plurality opinion, Chief Justice Brown set forth a two-part test. Id. at ¶ 47-

49. First, one must determine whether the offenses at issue could be committed by the same

conduct. Id. at ¶ 47. One does so by asking “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.” (Emphasis sic.) Id. at ¶ 48. Second, one must ask whether the offenses

actually were committed by the same conduct, “i.e., ‘a single act, committed with a single state

of mind.’” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50

(Lanzinger, J., dissenting). If the answer to both inquiries is yes, the offenses will merge. Id. at

¶ 50.

        {¶9}   In her concurring opinion, Justice O’Connor focused on the meaning of the phrase

“allied offenses of similar import.” Johnson at ¶ 63-64 (O’Connor, J., concurring). She defined

that phrase as “multiple offenses that arise out of the same criminal conduct and are similar but
                                                 4


not identical in the significance of the criminal wrongs committed and the resulting harm.” Id. at

¶ 64. 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.” Id. at ¶ 66. They are of

“‘similar import’ when the underlying conduct involves similar criminal wrongs and similar

resulting harm.” Id. at ¶ 67. Justice O’Connor specified that, in making its allied offense

determination, a trial court must be guided by a review of the evidence introduced at trial and

constrained by the theories and legal arguments set forth by the State. Id. at ¶ 69-70.

       {¶10} While they differed in their analyses, all seven of the justices in Johnson also

agreed that the offenses at issue in Johnson were allied offenses of similar import. Johnson at ¶

56-57; ¶ 70-71 (O’Connor, J., concurring); ¶ 83 (O’Donnell, J., concurring). The facts in

Johnson were as follows. Johnson beat a seven-year-old victim while the victim’s mother was in

a different room. Upon hearing a loud “thump” or “stomping,” the mother investigated and

found Johnson pushing her son to the floor. Id. at ¶ 54. The mother left the room, but returned

shortly thereafter when she heard another loud “thump” or “stomp.” Id. At that point, the

mother observed her son shaking on the floor. Id. Her son died as a result of head injuries, and

the State prosecuted Johnson for child endangering and felony murder, with child endangering as

the predicate offense. Chief Justice Brown concluded that the State only pursued the second

beating as the basis for both the child endangering charge and the felony murder charge and that

the beating was “a discrete act that resulted in the simultaneous commission of allied offenses.”

Id. at ¶ 56. Justice O’Connor agreed that the State relied upon the same evidence to establish

that Johnson’s conduct violated the two separate statutes at issue. Id. at ¶ 70 (O’Connor, J.,

concurring). She noted that, while alternate theories may have existed, the record evinced that
                                                  5


the State did not pursue them. Id. Accordingly, she too, determined that the offenses were allied

offenses of similar import that had to merge for purposes of sentencing. Id.

       {¶11} Washington’s convictions arose as a result of his leading police on a high-speed

pursuit after stealing a car from a Midway Mall patron. Washington, 2011-Ohio-1149, at ¶ 2.

The high-speed chase encompassed several miles of Interstate 90 as well as several side streets

when Washington finally exited the highway. After two of the car’s tires deflated and he could

no longer drive it, Washington finally stopped the car, jumped out, and led the police on a foot

chase through a wooded area. Id. The police apprehended Washington in a ditch in the woods

not far from where he left the car. Id.

       {¶12} As previously noted, the State prosecuted Washington for both failure to comply

and obstructing official business. The subsection of the failure to comply statute with which the

State charged Washington reads as follows: “No person shall operate a motor vehicle so as

willfully to elude or flee a police officer after receiving a visible or audible signal from a police

officer to bring the person’s motor vehicle to a stop.” R.C. 2921.331(B). The obstructing

official business statute provides that “[n]o person, without privilege to do so and with purpose

to prevent, obstruct, or delay the performance by a public official of any authorized act within

the public official’s official capacity, shall do any act that hampers or impedes a public official in

the performance of the public official’s lawful duties.” R.C. 2921.31(A).

       {¶13} The State did not supply Washington with a bill or particulars, but set forth its

theory of the charges at trial. In opening statement, the prosecutor described Washington’s

failure to comply count as stemming from his failure to stop his vehicle and his attempt to

accelerate and escape when Officer Joe Novosielski activated his lights and siren. As to the

obstructing official business count, the prosecutor stated:
                                                 6


       Obstructing official business has to do, it’s very [] similar to the assault on a
       police officer, both counts of that is when [Washington] ran he imperiled not only
       the officers’ lives, and you will see as Officer [Larry] Miller is pursuing to catch
       up to this chase, the people in front of him necessitated him slamming on his
       brakes, dodging other people on the road, so not only was Officer Miller and the
       other officers in danger, but so were other people like you that were out there
       driving eastbound on I-90 on February 26th of this year.

The prosecutor did not focus on any particular counts in his closing argument. He did once again

emphasize, however, the fact that Washington endangered the lives of officers and other people

by engaging in a high speed chase rather than stopping the car he was driving.

       {¶14} At the resentencing hearing following this Court’s remand to apply Johnson, the

State argued that Washington’s failure to comply count arose from the high speed chase while

his obstructing official business count arose from his decision to engage in a foot chase with

officers after stopping the car. The State averred that the two counts amounted to two separate

acts of conduct committed with a separate animus. The trial court accepted the State’s rationale

and determined that Washington’s offenses were not allied because: (1) the crime of failing to

comply contains different elements than the crime of obstructing official business; (2)

Washington’s flight into the woods constituted a new course of conduct that created a “different

set of risks * * * to the public”; and (3) the foot chase presented officers with “unique dangers”

that the State did not have to “present any special testimony about.”

       {¶15} The trial court’s reasoning here does not comport with Johnson. A statutory

analysis distinguishing the elements of the two counts at issue was not an appropriate focus, as

that analysis would harken back to the rationale embraced in Rance. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, at syllabus, overruling Rance, 85 Ohio St.3d 632. And while risk to the

public could conceivably sound in an import analysis, in which one must consider the

defendant’s state of mind, Johnson at ¶ 49, and whether “similar resulting harm occurred,”
                                                7


Johnson at ¶ 67 (O’Connor, J., concurring), risk must not simply be couched in terms of different

societal interests that the legislature intended certain statutes to protect. See Johnson at ¶ 35

(criticizing the analysis the majority employed in State v. Brown); State v. Brown, 119 Ohio

St.3d 447, 2008-Ohio-4569, ¶ 36-37 (exempting from application the general allied offense

analysis when the legislature intended that different “societal interests [be] protected by the

relevant statutes”). The focus of the analysis must be on the particular conduct of the specific

defendant at issue. Johnson at syllabus. Moreover, the analysis must be driven by the record

and the evidence/theories the State actually introduced, not retrospective hypothecating about

what charges a defendant’s conduct could have supported. Id. at ¶ 56-57; ¶ 69-70 (O’Connor, J.,

concurring).

       {¶16} The State’s theory at trial was that the high-speed car chase in which Washington

engaged formed the basis for both his failure to comply and obstructing official business charges.

The trial court permitted the State to argue at the resentencing that the subsequent foot chase

could support the latter charge. The court did so, in part, because the State did not have the

benefit of Johnson at the time the case was tried and “things might have been framed and argued

a bit differently, given the Johnson case.” Yet, the parties in Johnson did not have the benefit of

Johnson either. Alternative theories that the State might have pursued, but did not, cannot form

the basis for the State’s argument at resentencing. Instead, the allied offense analysis must

derive from the evidence introduced at trial, the record, and the legal arguments actually raised.

Johnson at ¶ 56; ¶ 69-70 (O’Connor, J., concurring). At no point before resentencing for the

application of Johnson did the State raise the argument that Washington’s flight from the police

on foot amounted to a separate act of conduct for which Washington possessed a separate

animus.
                                                8


       {¶17} The evidence here was that Washington fled from the police and continued to flee

until he was apprehended. His flight from the police amounted to a continuous course of

conduct, beginning on the highway and ending in the woods. The State relied upon the same

evidence to prove both Washington’s failure to comply and obstructing official business charges.

As such, the State in no way differentiated between the two.            The record reflects that

Washington’s failure to comply count and his obstructing official business count were not: (1) of

dissimilar import; (2) committed separately; or (3) committed with a separate animus. See R.C.

2941.25(B). Washington acted with one specific goal in mind: to evade the police. It was

possible to commit both failure to comply and obstructing official business with the same

conduct, and the evidence was that Washington actually committed both offenses with the same

state of mind. Johnson at ¶ 48-49. His offenses arose from the same conduct, involved similar

criminal wrongs, and resulted in similar harm. Id. at ¶ 70 (O’Connor, J., concurring).        The

conclusion, therefore, must be that his offenses are allied offenses of similar import that must

merge. See State v. Congrove, 5th Dist. No. 11-CA-5, 2012-Ohio-1159, ¶ 26-29 (concluding that

offenses were allied under Johnson because the evidence showed that the charges arose from the

same conduct and the defendant acted with a single state of mind).

       {¶18} The trial court erred by determining that Washington could be separately

convicted of both failure to comply and obstructing official business.        Washington’s first

assignment of error is sustained on this basis. “[T]he matter is remanded for resentencing, at

which point the State can elect which allied offense it will pursue against Washington, consistent

with the Supreme Court’s directive in State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,

paragraph one of the syllabus.” Washington, 2011-Ohio-1149, at ¶ 22.
                                                 9


                                 Assignment of Error Number Two

         THE VERDICT FOR OBSTRUCTING OFFICIAL BUSINESS IS AGAINST
         THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF MR.
         WASHINGTON’S RIGHTS UNDER THE FIFTH, SIXTH AND
         FOURTEENTH    AMENDMENTS      TO   THE    UNITED   STATES
         CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE
         CONSTITUTION.

                                Assignment of Error Number Three

         THE VERDICT FOR OBSTRUCTING OFFICIAL BUSINESS IS AGAINST
         THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR.
         WASHINGTON’S RIGHTS UNDER THE FIFTH, SIXTH AND
         FOURTEENTH    AMENDMENTS      TO   THE    UNITED   STATES
         CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE
         CONSTITUTION.

         {¶19} In his second and third assignments of error, Washington argues that his

conviction for obstructing official business is based on insufficient evidence and is against the

manifest weight of the evidence.

         Under the doctrine of res judicata, a final judgment of conviction bars a convicted
         defendant who was represented by counsel from raising and litigating in any
         proceeding except an appeal from that judgment, any defense or any claimed lack
         of due process that was raised or could have been raised by the defendant at the
         trial, which resulted in that judgment of conviction, or on an appeal from that
         judgment.

State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “This Court has

recognized that, by the plain language of Perry, ‘the doctrine of res judicata is directed at

procedurally barring convicted defendants from relitigating matters which were, or could have

been, litigated on direct appeal.’” State v. McShepard, 9th Dist. No. 11CA010000, 2011-Ohio-

6752, ¶ 13, quoting State v. Widman, 9th Dist. No. 00CA007681, 2001 WL 519493, *1 (May 16,

2001).

         {¶20} Washington previously had a direct appeal in this matter. In that direct appeal,

this Court rejected a manifest weight challenge to one of Washington’s other convictions.
                                                10


Washington, 2011-Ohio-1149, at ¶ 6-19. We only remanded Washington’s case for resentencing

due to the allied offense issue. Id. at ¶ 22-29. Having had the benefit of a prior direct appeal

during which additional matters could have been litigated, Washington cannot now challenge

another conviction on the bases of sufficiency and weight. Perry at paragraph nine of the

syllabus. His arguments are barred by res judicata. State v. Kerns, 9th Dist. No. 11CA0051-M,

2011-Ohio-6788, ¶ 8 (concluding, after first having remanded the matter for resentencing due to

an invalid post-release control notification, that res judicata barred challenge to sex offender’s

classification); State v. Washington, 9th Dist. No. 25784, 2011-Ohio-6600, ¶ 11-12 (concluding,

after having remanded the matter for resentencing on the issue of allied offenses, that res judicata

barred challenge to verdict forms); State v. Wooden, 9th Dist. No. 25607, 2011-Ohio-4942, ¶ 10-

12 (concluding, after direct appeal and a resentencing for post-release control, that res judicata

barred challenge to the sufficiency of the defendant’s indictment). As such, his second and third

assignments of error are overruled.

                                                III

       {¶21} Washington’s first assignment of error is sustained, and his remaining

assignments of error are overruled. The sentences on Washington’s failure to comply and

obstructing official business counts are reversed, and the matter is remanded to the trial court for

the State to elect which allied offense it will pursue. The judgment of the Lorain County Court

of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings

consistent with the foregoing opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, J.
CONCURS.

CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶22} I agree with the majority’s resolution of the second and third assignments of error.

       {¶23} I respectfully dissent in regard to the majority’s resolution of Washington’s first

assignment of error. Applying the test enunciated in State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, I would conclude that Washington’s convictions for failure to comply and
                                                 12


obstructing official business were not allied offenses of similar import. This Court has already

recognized and articulated the appropriate test as follows:

       In Johnson at ¶ 44, the Ohio Supreme Court held that in determining whether two
       offenses are allied offenses of similar import, “the conduct of the accused must be
       considered.” The court must first determine “whether it is possible to commit one
       offense and commit the other with the same conduct,” and, if so, 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.’” Id. at ¶ 48, 49, quoting State
       v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J. concurring).
       If the same conduct constituted both offenses, then they must be merged.
       Johnson at ¶ 50. Failure to merge allied offenses of similar import constitutes
       plain error, and prejudice exists even where a defendant’s sentences are to run
       concurrently because “a defendant is prejudiced by having more convictions that
       are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶
       31.

State v. Ross, 9th Dist. No. 25778, 2012-Ohio-1389, ¶ 23.

       {¶24} In enunciating its test from Johnson, the majority quotes extensively from Justice

O’Connor’s concurring opinion, which is not controlling. Moreover, this analysis places an

additional and onerous burden on the State where one does not exist. The State maintains the

burden of proving every element of every charged offense beyond a reasonable doubt. However,

after conviction, the duty to merge allied offenses of similar import for purposes of sentencing

lies with the trial court, even in the face of an unlawful joint recommendation by the parties.

Underwood at ¶ 26.      Accordingly, I believe the majority misconstrues the test enunciated in

Johnson when it relies heavily on Justice O’Connor’s concurring opinion and misconstrues it to

shift the burden to the State to neatly frame at the time of trial all issues which arise, if at all,

only at a sentencing. The State’s theory of the case, enunciated during opening statement and

closing argument, does not constrain the trier of fact to finding a criminal defendant guilty solely

on the basis of that theory where the application of the law to the evidence supports a finding of

guilt beyond a reasonable doubt on the charged offenses. It is the application of the law to the
                                                 13


evidence, and not the proffered theory of the case, which forms the basis for the verdict. Where

the State has obtained a conviction, it should then be free to put forth at sentencing its argument

against merger. Until sentencing, the issue of merger is not ripe. Therefore, I would not limit

the analysis of the merger of offenses to only those theories espoused by the State during trial.

In fact, limiting the consideration to the State’s (and/or defendant’s, for that matter) theory of the

case and any argument made at either the trial or sentencing is inherently improper because the

trial court has no authority to impose a sentence contrary to law. Instead, the trial court must

independently apply the Johnson test to determine whether the merger of offenses is required

irrespective of any argument or even agreement of the parties.

       {¶25} I would rely on the clear and concise recitation of the Johnson test we recognized

in Ross, supra. Applying that test to the evidence in the instant case, I would conclude that

Washington’s offenses were not allied offenses of similar import. Washington’s conviction for

failure to comply was based on evidence that he continued to operate a car after receiving a

signal from police to stop. He ultimately stopped the car only after the police punctured two of

his tires. After stopping the car, however, he exited the vehicle and fled on foot to prevent the

police from performing official lawful duties, in this case investigating a reported theft of a car.

I believe, under the facts of this case, that Washington’s refusal to stop the car and his flight on

foot constituted two distinct acts. He would have known that remaining in the disabled vehicle

would have enabled the police to question him about the theft. His flight on foot was a separate

act performed with the intent to prevent the police from both discovering his role in the theft and

arresting him. To determine otherwise would simply encourage criminals to take any actions

necessary to evade the police without fear of repercussions beyond those arising out of the
                                                 14


original criminal act. Because I would conclude that Washington’s convictions were not allied

offenses of similar import, I would overrule his first assignment of error.


APPEARANCES:

PAUL A. GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
