[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.