[Cite as State v. Bridgeman, 2011-Ohio-2680.]




           IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :            C.A. CASE NO. 2010 CA 16

v.                                                         :            T.C. NO.   08CR81

ADAM BRIDGEMAN                                             :            (Criminal appeal from
                                                                        Common Pleas Court)
        Defendant-Appellant                      :

                                                           :

                                                ..........

                                           OPINION

                         Rendered on the             3rd       day of      June     , 2011.

                                                ..........

NICK A. SELVAGGIO, Atty. Reg. No. 0055607, 200 N. Main Street, Prosecuting Attorney,
Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

ANDREA G. OSTROWSKI, Atty. Reg. No. 0075318, 25 E. Central Avenue, Suite 4,
Springboro, Ohio 45066
       Attorney for Defendant-Appellant

                                                ..........

FROELICH, J.

        {¶ 1} Adam Bridgeman was convicted after a jury trial in the Champaign County

Court of Common Pleas of aggravated robbery, aggravated burglary, and grand theft in an

amount of $5,000 or more but less than $100,000, arising out of the robbery of the
                                                                                                                              2

Christiansburg branch of the First Central National Bank on December 17, 2007.1 Each

count contained a firearm specification.                      The trial court sentenced Bridgeman to an

aggregate term of thirteen years in prison and ordered him to pay restitution in the amount of

$8,218.

         {¶ 2} Bridgeman appeals from his convictions. He claims that the trial court erred

in not allowing him to try on the boots allegedly worn by the perpetrator, that the trial court

should have granted his Crim.R. 29 motion for a judgment of acquittal, and that his

convictions are against the manifest weight of the evidence. For the following reasons,

Bridgeman’s convictions will be affirmed. However, because the court failed to merge

allied offenses of similar import, Bridgeman’s sentence will be reversed and the matter will

be remanded for resentencing.

                                                                    I

         {¶ 3} We begin with Bridgeman’s second assignment of error, which states:

         {¶ 4} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

CRIMINAL RULE 29 MOTION BECAUSE THERE WAS INSUFFICIENT EVIDENCE

TO SUPPORT THE CHARGES.”

         {¶ 5} Bridgeman claims that the trial court should have granted his Crim.R. 29

motion, because the State failed to present sufficient evidence of venue or that Bridgeman

was the perpetrator.

         {¶ 6} A sufficiency of the evidence argument challenges whether the State has


             1
               This was Bridgeman’s second trial. Bridgeman was originally convicted by a jury on June 24, 2008. On appeal, we
   reversed his convictions due to an erroneous evidentiary ruling and remanded the case to the trial court. State v. Bridgeman,
   Champaign App. No. 2008 CA 19, 2009-Ohio-4578.
                                                                                            3

presented adequate evidence on each element of the offense to allow the case to go to the

jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380,

386, 1997-Ohio-52. The proper test to apply to such an inquiry is the one set forth in

paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259: “An appellate

court’s function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such evidence,

if believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.”

       {¶ 7} Although venue is not a material element of an offense, it is a fact that must

be proved beyond a reasonable doubt, unless it is waived by the defendant. State v. Headley

(1983), 6 Ohio St.3d 475, 477; State v. Draggo (1981), 65 Ohio St.2d 88, 90. “The Ohio

Constitution establishes the right of the accused to have a ‘trial by an impartial jury of the

county in which the offense is alleged to have been committed.’ Section 10, Article I, Ohio

Constitution. R.C. 2901.12 guarantees that right by requiring that a criminal trial shall be

held in a court with subject matter jurisdiction in the ‘territory of which the offense or any

element thereof was committed.’ Crim.R. 18 provides that the venue of a case shall be that

as set by law.”    (Internal citations omitted) State v. Gonzalez, 188 Ohio App.3d 121,

2010-Ohio-982, ¶4.

       {¶ 8} The State need not establish venue with direct evidence. Headley, 6 Ohio

St.3d at 477.     Rather, venue may be established by the totality of the facts and
                                                                                            4

circumstances of the offense. Id.

       {¶ 9} Bridgeman did not challenge venue before the trial court, and he cannot raise

that issue for the first time on appeal. E.g., State v. Cornwell, Pickaway App. No. 10CA7,

2011-Ohio-1220, ¶5; State v. Mills, Williams App. No. WM-09-014, 2010-Ohio-4705, ¶23;

State v. Wheat, Franklin App. No. 05AP-30, 2005-Ohio-6958, ¶10.         “However, failure to

prove venue is a defect affecting a substantial right and is subject to review under the plain

error doctrine.” Cornwell at ¶5. “Plain error is to be used ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v.

Dixon, 152 Ohio App.3d 760, 2003-Ohio-2550, ¶21, quoting State v. Long (1978), 53 Ohio

St.2d 91, paragraph three of the syllabus.

       {¶ 10} At trial, the State presented substantial evidence that the robbery of the

Christiansburg branch of the First Central National Bank occurred within Champaign

County. State’s Exhibit 30 was a map of the southwestern portion of Champaign County,

the northwestern portion of Clark County, and eastern Miami County. The Village of

Christiansburg is located in Champaign County, close to the intersection of those three

counties.

       {¶ 11} Several witnesses placed the Christiansburg branch within the territorial

limits of the Village of Christiansburg. Gary Glaser, a driver for Mike Sells Potato Chips,

testified that he drove to the Christiansburg General Store in downtown Christiansburg. He

indicated that the bank was “probably about a block away [from the store] on the other side

of the main intersection.” Deputy Nathan Aycock of the Champaign County Sheriff’s

Office testified that the bank was located at the main intersection of the Village of
                                                                                            5

Christiansburg. Sgt. Aaron Brown of the Champaign County Sheriff’s Office, the lead

investigator, stated that he went to the front of the bank “on South Main Street” and he

secured the scene by partially blocking the intersection of Main and Pike Streets; Brown

explained that Pike Street is the name of State Route 55 within the Village of Christiansburg.

       {¶ 12} Although no one expressly testified that the bank was located in Champaign

County, the State’s evidence established that the bank was located at the intersection of

Main and Pike Streets in the Village of Christiansburg, which is within Champaign County.

We find no error, plain or otherwise, in the venue of this case.

       {¶ 13} Turning to the identity of the bank robber, we find that the State presented

sufficient evidence that Bridgeman was the perpetrator of the bank robbery. According to

the State’s evidence, at approximately 1:20 p.m. on December 17, 2007, a man entered the

Christiansburg branch of the First Central National Bank, approached a teller, pointed a gun

at her, and demanded that she “put the fucking money into the bag.” The man gave the

teller plastic bags from Wal-Mart in which to place the money. As the teller filled the bag

with money from her station, Branch Manager Doug Mosbarger, who was covering the

drive-thru station while another employee was eating lunch, came to the front of the bank.

The robber told Mosbarger to get on the floor. Mosbarger was then ordered to get up and

get the money from the drive-thru station. Mosbarger returned from the drive-thru station,

carrying money in his hands; he placed the money in a plastic bag. The man left the bank

with one plastic bag containing $8,218. (In the process of the robbery, another bag of

money fell to the floor behind the teller station and was not retrieved by the robber.) The

plastic bag taken by the robber included “bait money” (i.e., the serial numbers of the bills
                                                                                            6

had been recorded), a dye pack, and a $1 bill that set off the bank’s alarm.

       {¶ 14} Although the bank employees provided varying descriptions of the robber’s

build and clothing, a surveillance videotape of the robbery revealed that the perpetrator wore

a black ski mask with holes for the eyes and mouth, black gloves, a black coat, baggy dark

khaki pants, and brown boots. Approximately an hour after the robbery, law enforcement

officers recovered a black ski mask, a black coat, two black gloves and two brown boots

from the grassy areas along the east and west sides of Alcony Conover Road between State

Route 55 and Green Road in Miami County; that location was a few miles away from

Christiansburg. That same afternoon, William Davis, a resident of 4040 Alcony Conover

Road (between Green Road and Troy Urbana Road) found a pair of pants in his front yard;

he contacted the Champaign County Sheriff’s Office, which collected the pants from him.

Sgt. Brown, who had reviewed the surveillance tape, testified that the clothing was the same

as those shown on the surveillance tape.

       {¶ 15} Several days after the robbery, the dye pack placed with the money by the

bank employees, as well as a DVD and an empty pack of cigarettes, was located outside of a

residence on Peters Avenue in Troy. That residence was located in the “same geographical

area of the city of Troy” as Bridgeman’s residence; Sgt. Brown stated: “If you would divide

the city of Troy into four quadrants they were in the same quadrant.”

       {¶ 16} The items of clothing and the boots were sent to the Ohio Bureau of Criminal

Identification and Investigation (“BCI”) for DNA testing. BCI selected the ski mask and a

glove to test. The ski mask contained DNA from an unknown male, as well as two peaks

from a different unknown source. The glove contained a major DNA contributor and a
                                                                                          7

minor contributor; the major contributor was the same unknown male that was found on the

ski mask. Bridgeman was later identified as the unknown male for the ski mask and the

major contributor for the glove.

       {¶ 17} Sgt. Brown later interviewed Bridgeman regarding the bank robbery.

Bridgeman denied any knowledge of a robbery. However, Bridgeman told Brown that he

would never hold a gun to someone’s face; Brown testified that only law enforcement

officers and the perpetrator would know that the teller had been threatened with a gun.

Brown further testified that he told Bridgeman that clothing matching the description of the

perpetrator had been found scattered along Alcony Conover Road. Bridgeman responded,

“You have a ski mask,” even though Brown had not told Bridgeman or the media that the

perpetrator had worn a ski mask. Bridgeman told Brown that he could not have committed

the crime because he was at the Miami County Jail. Brown subsequently spoke to Miami

County and learned that Bridgeman was not incarcerated on December 17.

       {¶ 18} Construing the evidence in the light most favorable to the State, a reasonable

jury could have found, beyond a reasonable doubt, that Bridgeman was the perpetrator of the

bank robbery. Bridgeman’s DNA was located on clothing that appeared to have been worn

by the perpetrator. The dye pack from the robbery was located in the general area of

Bridgeman’s residence, and Bridgeman made statements to Sgt. Brown that indicated

knowledge of the crime beyond the information known by the general public. There was

sufficient evidence to support Bridgeman’s conviction.

       {¶ 19} The second assignment of error is overruled.

                                                II
                                                                                           8

       {¶ 20} Bridgeman’s first assignment of error states:

       {¶ 21} “THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW THE

DEFENDANT TO PERFORM A DEMONSTRATION USING THE STATE’S EXHIBIT.”

       {¶ 22} At trial, Bridgeman asserted that the boots found along Alcony Conover Road

would not fit him, because the boots were size 9½, whereas he wears shoes that are size 10½

or 11. Bridgeman requested permission to try on the boots during his case-in-chief. The

State opposed the motion, arguing that “there will be no way to maintain the integrity of the

boots for possible evidentiary value should this ever be tried [again] ***[;] I don’t believe

that the boot could properly be protected from Defendant’s contamination of it.” The State

asserted that Bridgeman’s testimony as to his shoe size would be sufficient, that the boots’

physical condition may have changed over time (particularly considering they were wet from

snow when they were found along Alcony Conover Road approximately one hour after the

robbery), and that the State might be confronted with having to ask for a continuance in

order to secure the testimony of a podiatrist to explain the manner in which a person’s foot

size might change. The trial court denied Bridgeman’s request to try on the boots.

       {¶ 23} Bridgeman argues that the trial court abused its discretion when it precluded

him from offering relevant evidence (i.e., a demonstration that the boots were too small)

without exploring methods of eliminating possible contamination, such as providing

Bridgeman a sterile sock or having Bridgeman wear gloves.

       {¶ 24} Relevant evidence is generally admissible whereas irrelevant evidence is not.

Evid.R. 402. “Relevant evidence” is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable
                                                                                            9

or less probable than it would be without the evidence.” Evid.R. 401. Relevant evidence

is not admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury. Evid.R. 402; Evid.R.

403(A).

       {¶ 25} The admission or exclusion of evidence is left to the sound discretion of the

trial court and will not be disturbed on appeal absent an abuse of that discretion. State v.

Sage (1987), 31 Ohio St.3d 173. An abuse of discretion implies an arbitrary, unreasonable,

unconscionable attitude on the part of the trial court. State v. Hancock, 108 Ohio St.3d 57,

2006-Ohio-160, ¶130.

       {¶ 26} Whether Bridgeman’s foot was too large for the boot allegedly worn by the

perpetrator was certainly relevant to whether Bridgeman committed the bank robbery.

Were this court to review the issue de novo, we would find Bridgeman’s request to try on the

boot reasonable.   The State had possession of the boots since they were recovered in

December 2007, and it had previously tried Bridgeman on these charges using the DNA

evidence from the ski mask and glove, but had not specifically requested to have the boots

tested for DNA. We see no reason why precautions could not have been taken to prevent

the possible transfer of Bridgeman’s DNA to the boot should the State (or Bridgeman) desire

the boots to be tested in the future. Although this entire issue probably could have been

addressed by a motion in limine, we do not find the State’s generalized concerns about the

need to obtain rebuttal witnesses to be so significant as to warrant the denial of Bridgeman’s

request.

       {¶ 27} Nevertheless, upon reviewing the entirety of the trial transcript, we find any
                                                                                            10

abuse of discretion in the trial court’s decision to be harmless. Bridgeman and two other

individuals testified regarding his shoe size. Bridgeman stated that he did not recognize the

boots found along Alcony Conover Road (which were size 9½) and that he normally wore

size 11 shoes. Patrick Novotney and Steven Nott both testified that they saw Bridgeman

wear size 10 shoes at the Tri-County Regional Jail and that they were too small for him.

Nott stated that he traded his size 11 loafers for Bridgeman’s size 10 loafers, and the size 11

shoes fit Bridgeman. Through this evidence, the jury heard testimony that the boots

recovered by the Champaign County Sheriff’s Office could not have fit Bridgeman.

Moreover, there is the possibility that the boots’ condition was affected by their exposure to

the snow, and the jury might have had difficulty seeing how far Bridgeman’s foot could

comfortably extend into the boot. We find no prejudicial error in the court’s denial of

Bridgeman’s request to try on the boots. See, e.g., State v. Ashley (C.A.5, 2010), 370

Fed.Appx. 520 (denial of defendant’s request to try on clothes was harmless error); State v.

Hutchinson (La.App. 2002), 817 So.2d 500, 508.

       {¶ 28} The first assignment of error is overruled.

                                                  III

       {¶ 29} Bridgeman’s third assignment of error states:

       {¶ 30} “APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

       {¶ 31} In his third assignment of error, Bridgeman claims that his convictions are

against the manifest weight of the evidence.

       {¶ 32} “[A] weight of the evidence argument challenges the believability of the
                                                                                            11

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, Montgomery App. No. 22581, 2009-Ohio-525,

¶12. When evaluating whether a conviction is contrary to the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175;

State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶44.

       {¶ 33} Because the trier of fact sees and hears the witnesses at trial, we must defer to

the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. However, we

may determine which of several competing inferences suggested by the evidence should be

preferred. Id.

       {¶ 34} The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.

       {¶ 35} Bridgeman argues that “[t]his is a case of generic clothing, more than one

DNA present, widely different eye witness accounts and no fingerprints.” He emphasizes

that eyewitnesses gave different descriptions of the robber’s physical characteristics and

those characteristics did not match him.      For example, Glaser, the Mike Sells driver,
                                                                                             12

testified that he saw a man in attire similar to the robber’s around 11:00 or 11:30 a.m. on the

day of the robbery; Glaser said the man in a ski mask had brown eyes. The bank teller also

testified that the robber had brown eyes. Bridgeman has green eyes. Glaser stated that the

black coat was made out of a “wool-type material”; the teller stated that the coat was like a

Carhartt coat, which implies a heavy denim material. At trial, the teller recalled that the

coat was brown. The coat recovered by the police was black fleece.

       {¶ 36} Bridgeman further emphasizes that the ski mask and glove each had DNA

from a second individual, and there was no way to determine if Bridgeman was the last

person to wear them. The State presented evidence that a suspicious small S-10 truck was

near the bank at the time of the robbery; Bridgeman did not own such a truck, and no truck

matching that description was located.

       {¶ 37} At trial, Bridgeman testified that he was at his home in Troy until 1:00 p.m.

on December 17, 2007, which he mistakenly believed was a Saturday, because he did not

work that day. (December 17, 2007 was a Monday.) He stated that he left his house

around 1:00 p.m. to go to his parents’ home in Covington, Ohio, which was about 30-45

minutes away. Bridgeman indicated that he spoke with Sgt. Brown in March 2008, and

mistakenly told the officer that he had been in jail at the time of the robbery; Bridgeman later

realized that he had been released on December 10, 2007. Bridgeman further testified that

his girlfriend had a party at his residence while he was in jail in late November or early

December 2007 and that several items “came up missing,” including his radio, several pieces

of clothing, his work jacket, a ski mask and gloves. Bridgeman stated that the gloves and

ski mask that were missing were similar to the ones recovered by the State. Bridgeman
                                                                                          13

testified the he did not recognize the pants or the boots found by the police, and he did not

own those colors of pants and boots.

       {¶ 38} Bridgeman acknowledged that he had spoken with Sgt. Brown in March

2008. He stated that he had told Brown that he (Bridgeman) was not violent and would not

point a gun at anyone, but he denied saying that he would not point a gun at another person’s

face. Bridgeman agreed that he had mentioned a ski mask to Brown, but testified that

Brown had mentioned the ski mask to him first.

       {¶ 39} Bridgeman denied ever owning a gun, owning a pickup truck, having been in

Christiansburg in 2007, and knowing the location of the bank. Bridgeman claimed that he

did not commit the offenses.

       {¶ 40} The State’s case against Bridgeman was not overwhelming. Nonetheless, we

cannot say that the jury’s verdicts were against the manifest weight of the evidence. Upon

review of the record as a whole, the jury could have reasonably believed that the clothing

located along Alcony Conover Road approximately one hour after the robbery was worn by

the perpetrator.   Although the bank employees’ descriptions of the robber varied, the

clothing found on the nearby road was consistent with the clothing seen on the surveillance

video. Bridgeman’s DNA was the major contributor to the DNA profile found on the ski

mask and glove.

       {¶ 41} Although the bank teller and Glaser testified that the man in the ski mask had

brown eyes, the jury could have elected not to give weight to that testimony, particularly

considering the inconsistent descriptions given of the robber. Likewise, the jury could have

elected to believe that Bridgeman had worn the boots that were found along Alcony Conover
                                                                                                                                  14

Road, despite his testimony and the testimony of Nott and Novotney that he wore larger

shoes. In addition, the dye pack was located at a residence on Peters Street in Troy, which

Bridgeman testified was a couple of blocks from his house.

         {¶ 42} Bridgeman’s convictions were not against the manifest weight of the

evidence.2

         {¶ 43} The third assignment of error is overruled.

                                                                     IV

         {¶ 44} Although Bridgeman has not argued on appeal that his convictions should

have been merged as allied offenses of similar import, we sua sponte take notice of this

error. See State v. Jones, Montgomery App. No. 23926, 2011-Ohio-1984, ¶4 (noticing the

potential error of failing to merge allied offenses of similar import).

         {¶ 45} The record in this case does not include a transcript of the sentencing hearing,

but the judgment entry makes clear that the trial court imposed concurrent sentences of ten

years, ten years, and 18 months for the aggravated robbery, the aggravated burglary, and the

grand theft charges, respectively. Those sentences were to run consecutive to the three-year

mandatory sentence for the firearm specification in Count One (aggravated robbery), for an

aggregate sentence of 13 years. The court did not impose additional terms for the firearm

specifications in Counts Two and Three.

         {¶ 46} We have previously held that a trial court’s failure to merge allied offenses of

similar import constitutes plain error.                      State v. Coffey, Miami App. No. 2006 CA 6,


             2
              Although we base our disposition of the third assignment of error on the evidence presented at the second trial, we also
   concluded in Bridgeman’s prior appeal that his convictions were not against the manifest weight of the evidence. Bridgeman at
   ¶67-76.
                                                                                           15

2007-Ohio-21, ¶14. See, also, State v. Puckett (March 27, 1998), Greene App. No. 97 CA

43. Furthermore, the Ohio Supreme Court has held that “R.C. 2941.25(A) clearly provides

that there may be only one conviction for allied offenses of similar import. Because a

defendant may be convicted of only one offense for such conduct, the defendant may be

sentenced for only one offense. Allied offenses of similar import are to be merged at

sentencing. *** Thus, a trial court is prohibited from imposing individual sentences for

counts that constitute allied offenses of similar import.” (Emphasis in original; internal

citations omitted) State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶26.

       {¶ 47} Revised Code 2941.25, Ohio’s multiple count statute, provides:

       {¶ 48} “(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.

       {¶ 49} “(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.”

       {¶ 50} “R.C. 2941.25 codifies the double jeopardy protections in the federal and

Ohio constitutions, which prohibit courts from imposing cumulative or multiple

punishments for the same criminal conduct unless the legislature has expressed an intent to

impose them.      R.C. 2941.25 expresses the legislature’s intent to prohibit multiple

convictions for offenses which are allied offenses of similar import per paragraph (A) of that
                                                                                            16

section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker, 183 Ohio

App.3d 414, 2009-Ohio-3511, ¶22, citing State v. Rance, 85 Ohio St.3d 632,

1999-Ohio-291, overruled on other grounds by State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314.

       {¶ 51} Subsequent to sentencing in this case, the Ohio Supreme Court clarified the

process by which courts determine whether offenses are allied offenses of similar import.

Johnson, supra.    The Johnson court overruled Rance “to the extent that it calls for a

comparison of statutory elements solely in the abstract under R.C. 2941.25.” Johnson at ¶44.

 Now, “[w]hen 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.” Id.

       {¶ 52} Johnson states that “the intent of the General Assembly is controlling.” Id. at

¶46.   “We determine the General Assembly’s intent by applying R.C. 2941.25, which

expressly instructs courts to consider the offenses at issue in light of the defendant’s

conduct.” Id. The trial court must determine prior to sentencing whether the offenses were

committed by the same conduct. The court no longer must perform any hypothetical or

abstract comparison of the offenses at issue in order to conclude that the offenses are subject

to merger. Id. at ¶47 “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. 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.” Id. at ¶48 (internal citation omitted).
                                                                                           17

       {¶ 53} “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.’” Id. at ¶49 (citation omitted). “If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

will be merged.” Id. at ¶50. “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.” Id. at ¶51.

       {¶ 54} Under the facts of this case, it is apparent that the charges of aggravated

robbery, aggravated burglary, and grand theft are allied offenses of similar import. The

grand theft charge was based on the theft of $8,218; Bridgeman was not accused of stealing

anything beyond the money from the bank. The aggravated robbery charge arose from

Bridgeman’s use of a deadly weapon in committing the grand theft. Bridgeman committed

aggravated burglary by trespassing at the bank, by force and with a deadly weapon, while

bank employees were present and with the purpose to commit grand theft and/or aggravated

robbery. In short, all of the charges stem from Bridgeman’s conduct of entering the bank to

conduct a robbery, threatening the employees with a firearm, demanding money, and leaving

the bank with $8,218. Bridgeman committed multiple offenses through a single course of

conduct and with a single state of mind. Therefore, the three counts should have been

merged prior to sentencing.

       {¶ 55} Where two or more offenses must be merged as allied offenses of similar

import, the prosecutor must elect which offense it will pursue. State v. Harris, 122 Ohio
                                                                                                18

St.3d 373, 2009-Ohio-3323, ¶21-23. “If, upon appeal, a court of appeals finds reversible

error in the imposition of multiple punishments for allied offenses, the court must reverse

the judgment of conviction and remand for a new sentencing hearing at which the state must

elect which allied offense it will pursue against the defendant.” State v. Whitfield, 124 Ohio

St.3d 319, 2010-Ohio-2, ¶25. The Supreme Court has provided additional guidance to the

trial court, as follows:

        {¶ 56} “On remand, the trial court should fulfill its duty in merging the offenses for

purposes of sentencing, but remain cognizant that R.C. 2941.25(A)’s mandate that a

‘defendant may be convicted of only one’ allied offense is a proscription against sentencing

a defendant for more than one allied offense. Nothing in the plain language of the statute or

in its legislative history suggests that the General Assembly intended to interfere with a

determination by a jury or judge that a defendant is guilty of allied offenses. As the state

asserts, by enacting R.C. 2941.25(A), the General Assembly condemned multiple sentences

for allied offenses, not the determinations that the defendant was guilty of allied offenses.

        {¶ 57} “Because R.C. 2941.25(A) protects a defendant only from being punished for

allied offenses, the determination of the defendant’s guilt for committing allied offenses

remains intact, both before and after the merger of allied offenses for sentencing. Thus, the

trial court should not vacate or dismiss the guilt determination.”         (Footnote omitted.)

Whitfield at ¶26-27.

                                                   V

        {¶ 58} Bridgeman’s convictions will be affirmed. Bridgeman’s sentence will be

reversed, and the matter will be remanded for resentencing.
                                                 19

                                    ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Nick A. Selvaggio
Andrea G. Ostrowski
Hon. Roger B. Wilson
