[Cite as State v. Morgan, 2012-Ohio-3936.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 12CA3305
:
v. :
: DECISION AND
RICHARD L. MORGAN, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: August 24, 2012
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Jeremy J. Masters, Ohio State
Assistant Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecutor, and Richard W. Clagg, Ross County
Assistant Prosecutor, Chillicothe, Ohio, for Appellee.
Kline, J.:
{¶1} Richard L. Morgan (hereinafter “Morgan”) appeals the judgment of the
Ross County Court of Common Pleas, which convicted him of complicity to aggravated
robbery. On appeal, Morgan contends that the state violated his double-jeopardy rights
by subjecting him to successive prosecutions for allied offenses of similar import. The
record, however, does not contain any evidence related to Morgan’s previous conviction
for receiving stolen property. Therefore, we cannot find that receiving stolen property
and complicity to aggravated robbery were committed by the same conduct. And
because we cannot find that Morgan’s offenses are allied offenses of similar import, we
must affirm the judgment of the trial court.
Ross App. No. 12CA3305 2
I.
{¶2} On June 26, 2010, Morgan and an accomplice were involved in a bank
robbery in Ross County. Eventually, Morgan was apprehended in Athens County,
where he was prosecuted for receiving stolen property.
{¶3} On October 29, 2010, a Ross County Grand Jury indicted Morgan for
complicity to aggravated robbery. According to Morgan, his participation in the June 26,
2010 bank robbery prompted both (1) the prosecution in Athens County and (2) the
prosecution in Ross County.
{¶4} On April 5, 2011, Morgan filed a motion to dismiss the complicity-to-
aggravated-robbery charge. Morgan claimed that, on February 8, 2011, he pled guilty
to receiving stolen property “in the Athens County Court of Common Pleas, Athens,
Ohio, Case Number 10 CR 0287.” Motion to Dismiss at 2. Morgan also claimed the
following:
The Receiving Stolen Property offense stems from the
Defendant’s possession of the money allegedly stolen from
the bank robbery which is the subject of the [complicity-to-
aggravated-robbery] offense. [And b]ecause the two counts
are * * * allied offenses of similar import, * * * it is respectfully
suggested that the Defendant has once been in jeopardy
and that [the complicity-to-aggravated-robbery count] is
therefore barred under the Fifth Amendment of the U.S.
Constitution. Id.
Ross App. No. 12CA3305 3
{¶5} The trial court overruled Morgan’s motion to dismiss the complicity-to-
aggravated-robbery charge. And after Morgan pled no contest, the trial court sentenced
him to three years in prison.
{¶6} Morgan appeals and asserts the following assignment of error: “The trial
court erred when it held that Richard Morgan’s conviction for aggravated robbery did not
violate double jeopardy principles as a successive prosecution for an allied offen[s]e of
similar import. Fifth and Fourteenth Amendments to the United States Constitution;
Section 10, Article I of the Ohio Constitution; R.C. 2941.25. (July 29, 2011 Transcript
pp. 1-4; December 12, 2011 Decision, pp. 1-6; December 12, 2011 Judgment Entry, pp.
1-2).”
II.
{¶7} In his sole assignment of error, Morgan contends that the state violated
his double-jeopardy rights by subjecting him to successive prosecutions for allied
offenses of similar import. Essentially, Morgan argues that he should not have been
convicted of aggravated robbery in Ross County because he had already been
convicted of receiving stolen property in Athens County.
{¶8} “The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution protect the accused
from being put in jeopardy twice for the same offense. These provisions protect an
individual against successive punishments as well as successive prosecutions for the
same offense.” State v. Moore, 110 Ohio App.3d 649, 652, 675 N.E.2d 13 (1st.
Dist.1996).
Ross App. No. 12CA3305 4
{¶9} To determine whether Morgan’s double-jeopardy rights were violated, we
must examine his convictions in two different counties. We faced a similar situation in
State v. Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276 (4th Dist.1992). Thus, in
Clelland, we described how appellate courts should analyze successive-prosecutions-
in-separate-jurisdictions for potential double-jeopardy violations.
When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, he may be tried
for all of those offenses in any jurisdiction in which one of
those offenses occurred. R.C. 2901.12(H). In [State v.
Urvan, 4 Ohio App.3d 151, 446 N.E.2d 1161 (8th
Dist.1982)], the Eighth District Court of Appeals held that
once one jurisdiction takes action first, it preempts venue
and jurisdiction for the whole matter, and jeopardy must
attach as a result of the activity of the first actor. See, also,
State v. DeLong (1990), 70 Ohio App.3d 402, 591 N.E.2d
345. In reaching their holdings, the Urvan (theft and
receiving stolen property) and DeLong (robbery and
receiving stolen property) courts emphasized that the
offenses [charged in different jurisdictions] were allied
offenses of similar import pursuant to R.C. 2941.25. See,
e.g., DeLong, supra, 70 Ohio App.3d at 405, 591 N.E.2d at
346, where the Tenth District Court of Appeals stated that
“[a]ny possible question stemming from one jurisdiction’s
Ross App. No. 12CA3305 5
failure to include another available charge in its prosecution
is resolved by R.C. 2941.25, which requires an election
between convictions for allied offenses when the state
chooses to pursue both.” Pursuant to Urvan and DeLong,
we must consider whether the offenses here are allied
offenses of similar import pursuant to R.C. 2941.25.
Clelland at 483-484.
{¶10} Accordingly, in the present case, we must determine whether Morgan’s
convictions for receiving stolen property and complicity to aggravated robbery are allied
offenses of similar import. If they are, the conviction in Ross County violated Morgan’s
rights under the Double Jeopardy Clauses of the United States and Ohio Constitutions.
{¶11} 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). However,
[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).
Ross App. No. 12CA3305 6
This statutory language “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, 63 Ohio St.2d 84, 86, 406 N.E.2d
1112 (1980), quoting State v. Roberts, 62 Ohio St.2d 170, 172-173, 405 N.E.2d 247
(1980).
{¶12} The Supreme Court of Ohio recently articulated a new test for determining
whether merger is appropriate. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, ¶ 44.
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. [State v.] Blankenship, 38
Ohio St.3d [116,] 119, 526 N.E.2d 816 [(1988)] (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]). * * *
If the multiple offenses can be committed by the same
conduct, then the court must determine whether the offenses
Ross App. No. 12CA3305 7
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, 895 N.E.2d 149, at ¶ 50
(Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses
are allied offenses of similar import and will be merged.
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.
(Emphasis sic.) Johnson at ¶ 48-51.
{¶13} To determine whether Morgan’s convictions are allied offenses of similar
import, we must examine the evidence in the record before us. See, e.g., State v.
Vance, 10th Dist., No. 11AP-755, 2012-Ohio-2594, ¶ 14; State v. Diggle, 3d Dist. No. 2-
11-19, 2012-Ohio-1583, ¶ 17; State v. Fairman, 2d. Dist. No. 24299, 2011-Ohio-6489, ¶
67-68. But here, the record contains no evidence of the conduct that resulted in
Morgan’s receiving-stolen-property conviction -- no statements from Morgan, no
testimony from witnesses, no documents from the case in Athens County, nothing.
Simply put, the present case contains absolutely no evidence related to Athens County
Case Number 10 CR 0287. In several court filings, Morgan’s trial counsel made
arguments related to Morgan’s receiving-stolen-property conviction, but “[a]rguments of
counsel are not evidence.” Thornton v. Conrad, 194 Ohio App.3d 34, 2011-Ohio-3590,
Ross App. No. 12CA3305 8
954 N.E.2d 666, ¶ 18 (8th Dist.), quoting Reynolds v. Hazelberg, 6th Dist. No. E-98-082,
1999 WL 587627, *3 (Aug. 6, 1999). See also Ramos v. Khawli, 181 Ohio App.3d 176,
2009-Ohio-798, 908 N.E.2d 495, ¶ 82 (7th Dist.) (In a summary-judgment context,
“statements of counsel in a motion are arguments but are not evidence that a court can
rely upon to find a genuine issue of material fact.”). Furthermore, the record is
contradictory as to whether Morgan was even convicted in Athens County Case
Number 10 CR 0287. During Morgan’s arraignment, the assistant prosecutor stated the
following: “[U]p until yesterday, [Morgan was] being held on felony charges in Athens
County. I think that case was dismissed due to speedy trial problems, based upon
conversations we’ve had with the prosecutor’s office down there.” November 16, 2010
Transcript at 1. Therefore, the record does not even conclusively demonstrate that
Morgan was convicted of receiving stolen property.
{¶14} Because there is no evidence related to Morgan’s receiving-stolen-
property conviction, we cannot find that receiving stolen property and complicity to
aggravated robbery were committed by the same conduct. See State v. Humphrey, 4th
Dist. No. 10CA3150, 2011-Ohio-5238, ¶ 18-23; State v. Savage, 7th Dist. No. 08-MA-
54, 2009-Ohio-7011, ¶ 31 (“Appellant cannot demonstrate that the aggravated robbery
and kidnapping crimes for which he was convicted were not committed with a separate
animus, because there is no evidence on the record of the facts and circumstances
surrounding his crimes.”). Therefore, Morgan cannot meet both prongs of the allied-
offenses-of-similar-import test. See Johnson at ¶ 50.
Ross App. No. 12CA3305 9
{¶15} In Humphrey, as in the present case, there was a lack of evidence to
support the appellant’s allied-offenses-of-similar-import claim. And based on that lack
of evidence, we held the following:
[The appellant] 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).
Humphrey at ¶ 21. We apply this reasoning to the present case. Here, Morgan did not
provide an adequate record to resolve his claim that the state violated his double-
jeopardy rights by subjecting him to successive prosecutions for allied offenses of
similar import. Therefore, we must affirm the judgment of the trial court.
{¶16} Accordingly, we overrule Morgan’s assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 12CA3305 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds that 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.
Abele, P.J. and Harsha, J.: Concur in Judgment & 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.
State v. Morgan
Combined Opinion