[Cite as State v. Pigge, 2010-Ohio-6541.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 09CA3136 

 : 

 vs. : Released: December 21, 2010

 : 

CASEY L. PIGGE, : DECISION AND JUDGMENT 

 : ENTRY 

Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Peter Galyardt, Columbus, Ohio, for Appellant. 

Michael M. Ater, Ross County Prosecuting Attorney, Chillicothe, Ohio, for 

Appellee. 

_____________________________________________________________ 

McFarland, P.J.: 

{¶1} Defendant-Appellant, Casey Pigge, appeals the Ross County 

Court of Common Pleas’ judgment that found him guilty of the following 

criminal offenses: (1) two counts of aggravated murder, in violation of R.C. 

2903.01(A); (2) aggravated robbery, in violation of R.C. 2911.01(A)(1); (3) 

aggravated burglary, in violation of R.C. 2911.11; (5) aggravated arson, in 

violation of R.C. 2909.02; (6) burglary, in violation of R.C. 2911.12(A)(2); 

and (7) tampering with evidence, in violation of R.C. 2921.12. He asserts 

that the trial court improperly accepted his guilty plea because he did not 
Ross App. No. 09CA3136 2

knowingly, intelligently, and voluntarily decide to plead guilty. Specifically, 

appellant contends that the trial court failed to adequately explain his 

constitutional right to compulsory process so that he could make a knowing, 

intelligent, and voluntary decision to plead guilty. The plea hearing 

transcript plainly shows that the trial court strictly complied with Crim.R. 

11(C)(2)(c) both by using the literal terms of the rule and by explaining 

appellant’s right to compulsory process in a reasonably intelligible manner. 

Therefore, we disagree with appellant that the trial court did not adequately 

explain his compulsory process right. Accordingly, the trial court did not 

erroneously determine that appellant entered a knowing, voluntary, and 

intelligent plea. 

{¶2} Appellant additionally argues that the trial court wrongly 

sentenced him for both aggravated arson and tampering with evidence. He 

contends that the two offenses constitute allied offenses of similar import 

and, thus, that he may be sentenced for only one of those offenses. Because 

the two offenses do not correspond to such a degree that the commission of 

one necessarily results in the commission of the other, the two offenses are 

not allied offenses of similar import. Consequently, the trial court did not 

improperly sentence appellant for these two offenses. 
Ross App. No. 09CA3136 3

{¶3} Accordingly, we overrule appellant’s two assignments of error 

and affirm the trial court’s judgment. 

I. 

FACTS 

{¶4} On September 5, 2008, appellant violently murdered Rhonda 

Summer. As the prosecutor recited: “[Appellant] pulled out a knife and at 

least five times he ripped it across [Summer’s] throat. It caused at least eight 

inch lacerations, severed her carotid artery and jugular veins. He then sat on 

the couch and watched her die. He went upstairs to wash the blood off of 

himself. He went downstairs to stole [sic] some of her money then set the 

house on fire.”1

 

{¶5} On September 12, 2008, the Ross County Grand Jury returned an 

indictment that charged appellant with: (1) two counts of aggravated 

murder, in violation of R.C. 2903.01(A), with death penalty specifications; 

(2) aggravated robbery, in violation of R.C. 2911.01(A)(1); (3) aggravated 

burglary, in violation of R.C. 2911.11; (4) aggravated arson, in violation of 

R.C. 2909.02; (5) burglary, in violation of R.C. 2911.12(A)(2); (6) 

tampering with evidence, in violation of R.C. 2921.12; and (7) gross abuse 

of a corpse, in violation of R.C. 2927.01. 
Ross App. No. 09CA3136 4

{¶6} On August 25, 2009, at a pre-trial hearing, the state requested the 

court to dismiss the death penalty specifications due to the state’s expert’s 

opinion that appellant suffers from mental retardation. Apparently, the 

dismissal of the death penalty specifications prompted appellant to decide to 

engage in plea negotiations with the state, which ultimately resulted in his 

decision to plead guilty. 

{¶7} On October 27, 2009, the court held a change of plea hearing and 

engaged in a Crim.R. 11(C) colloquy with appellant. One of the first 

questions the court asked appellant was whether he has “any sort of mental 

or physical disability.” Appellant responded that he did not. Appellant 

stated that he understood why he was present at the hearing, and the court 

then explained the rights appellant would waive by pleading guilty: 

 “ * * * You have the right to a speedy and public trial by 

trial [sic] or if you choose, by a judge[;] by pleading guilty you 

are giving up that right. Do you understand that? 

 [Appellant]: Yes your honor. 

 The Court: [Appellant], all twelve jurors, if it is a jury 

trial, or the judge if it is a trial to court, must be convinced that 

the state has proved each and every element of the charges 

against you beyond a reasonable doubt before you can be 

convicted of those charges. By pleading guilty you are giving 

up that right. Do you understand that? 

 [Appellant]: Yes your honor. 

 The Court: * * * You have the right not to be forced to 

testify at trial in these cases. That means that you can not [sic] 

 1

 Because this appeal originates from a guilty plea, the record contains little explanation of the facts 

constituting the crimes. We have used the state’s recitation of the crime as stated in the sentencing hearing 

transcript. 
Ross App. No. 09CA3136 5

be called to the witness stand if you do not wish to go; your 

decision not to testify can not [sic] be used against you[;] in fact 

if it’s a jury trial and you ask me to I have to instruct the jury 

the can not [sic] consider your decision not to testify for any 

purpose. By pleading guilty you are giving up that right. Do 

you understand that? 

 [Appellant]: Yes your honor. 

 The Court: You also have the right to confront any 

witnesses the state of Ohio might have against you at trial. That 

means you have the right to be here in court when those 

witnesses testify; you have the right for your attorneys to ask 

questions of those witnesses on cross-examination. By 

pleading guilty you are giving up that right. Do you understand 

that? 

 [Appellant]: Yes your honor. 

 The Court: You also have the right to a compulsory 

process. That means you have the right to have subpoena’s 

[sic] issued for any witness that you want to appear on your 

behalf in court. B[y] pleading guilty you are giving up that 

right. Do you understand that? 

 [Appellant]: Yes your honor. 

 * * * *.” 

{¶8} The court asked appellant if he reviewed the guilty plea petition 

with his attorneys. He stated that he had and indicated that he understood it. 

Appellant further stated that he had signed the plea form. With respect to 

appellant’s right to compulsory process, the form advised appellant that he 

has “the right to use the power and process of the Court to compel the 

production of any evidence, including the attendance of any witnesses in my 

favor.” 

{¶9} The court asked: “Do you have any questions about anything we 

have just been over in these matters that I can answer for you? Please don’t 
Ross App. No. 09CA3136 6

hesitate to ask if you have a question.” Appellant stated that he did not have 

any questions. The court further asked the prosecutor and appellant’s 

attorneys whether they had “anything with regards to the plea[].” Both 

stated that they did not. The court then determined “that [appellant] 

understands all of his rights as set forth in [Crim.R. 11(C)], he has been 

advised of his constitutional rights, stated in open court[,] that he understood 

and waived those rights. The court finds that [appellant’s] guilty pleas in 

both these cases were made knowingly, voluntarily, intelligently and [of 

appellant]’s own free will.” 

{¶10} On November 16, 2009, the court sentenced appellant. The 

court observed that: (1) the two counts of aggravated murder merged and 

that the state elected to proceed to sentencing on the first count; and (2) 

counts four (aggravated burglary) and six (burglary) merged with count 

three (aggravated robbery). The court then sentenced appellant to: (1) life 

with parole eligibility after thirty years for the aggravated murder offense; 

(2) six years for the aggravated robbery offense; (3) six years for the 

aggravated arson offense; and (4) two years for the tampering with evidence 

offense. The court ordered that appellant serve the aggravated murder and 

aggravated robbery sentences consecutively and that he serve the aggravated 
Ross App. No. 09CA3136 7

arson and tampering with evidence offenses concurrently with the 

aggravated robbery and aggravated murder offenses. 

II. 

ASSIGNMENTS OF ERROR 

{¶11} Appellant timely appealed the trial court’s judgment and raises 

two assignments of error. 

First Assignment of Error: 

 

Mr. Pigge was deprived of his right to due process under the 

Fourteenth Amendment to the United States Constitution and 

Section 10, Article I of the Ohio Constitution when the trial 

court accepted an unknowing, unintelligent, and involuntary 

guilty plea. 

Second Assignment of Error 

The trial court erred when it convicted Mr. Pigge of both 

aggravated arson under R.C. 2909.02(A)(2), and tampering 

with evidence under R.C. 2921.12(A)(1), as those offenses are 

allied offenses of similar import, and the record is silent as to 

whether the offenses were committed with a separate animus. 

III. 

GUILTY PLEA 

 {¶12} In his first assignment of error, appellant argues that the trial 

court erred by accepting his guilty plea when he did not knowingly, 

intelligently, and voluntarily enter it. In particular, appellant contends that 
Ross App. No. 09CA3136 8

he did not knowingly, intelligently, and voluntarily enter his guilty plea 

because the trial court did not adequately explain his right to compulsory 

process in a manner that was reasonably intelligible to appellant, a mentally 

retarded individual. Appellant essentially argues that because he is mentally 

retarded, the trial court possessed a heightened duty to define his right to 

compulsory process in terms that a mentally retarded individual could 

understand. Appellant contends that his plea is invalid because the “court 

failed to adequately advise him that he had the right to compulsory process, 

which meant that the trial court would use its power to compel any defense 

witnesses to appear and testify in court, and that [appellant] did not have to 

secure his own witnesses.” Appellant asserts that “the trial court should 

have further explained that [appellant]’s witnesses would not be permitted to 

ignore the subpoena, as the power to subpoena them would be coming from 

the court, and that [appellant] did not have to secure such witnesses on his 

own.” Appellant contends that he “could not have understood the nuanced 

legal meanings of ‘compulsory process’ and ‘subpoenas’” and that the court 

should have informed him that it “would use its power to secure 

[appellant]’s witnesses, and if necessary, force them to testify on his behalf.” 

{¶13} The ultimate inquiry when reviewing a trial court’s acceptance 

of a guilty plea is whether the defendant entered the plea in a knowing, 
Ross App. No. 09CA3136 9

intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176, 

2008-Ohio-5200, 897 N.E.2d 621, at ¶7, citing State v. Engle (1996), 74 

Ohio St.3d 525, 527, 660 N.E.2d 450. A defendant enters a plea in a 

knowing, intelligent, and voluntary manner when the trial court fully advises 

the defendant of all the constitutional and procedural protections set forth in 

Crim.R. 11(C) that a guilty plea waives. See State v. Clark, 119 Ohio St.3d 

239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶25, citing Engle, 74 Ohio St.3d at 

527; State v. Eckler, Adams App. No. 09CA878, 2009-Ohio-7064, at ¶48. 

Thus, when a court reviews a trial court’s acceptance of a guilty plea, it must 

independently review the record to ensure that the trial court followed the 

dictates of Crim.R. 11(C). See State v. Kelley (1991), 57 Ohio St.3d 127, 

128, 566 N.E.2d 658 (“When a trial court or appellate court is reviewing a 

plea submitted by a defendant, its focus should be on whether the dictates of 

Crim.R. 11(C) have been followed.”); Eckler at ¶48 (noting that standard of 

review is de novo); State v. Hamilton, Hocking App. No. 05CA4, 2005-

Ohio-5450, at ¶9; see, also, State v. Gilmore, Cuyahoga App. Nos. 92106, 

92107, 92108, and 92109, 2009-Ohio-4230, at ¶12. 

{¶14} Crim.R. 11(C)(2) (a)-(c) sets forth the process a trial court must 

follow before accepting a guilty plea. The rule prohibits a trial court from 

accepting a guilty plea unless the court personally addresses the defendant 
Ross App. No. 09CA3136 10

and (1) determines “that the defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty 

involved, and if applicable, that the defendant is not eligible for probation or 

for the imposition of community control sanctions at the sentencing 

hearing:” (2) informs “the defendant of and determin[es] that the defendant 

understands the effect of the plea of guilty or no contest, and that the court, 

upon acceptance of the plea, may proceed with judgment and sentence”; and 

(3) informs “the defendant and determin[es] that the defendant understands 

that by the plea the defendant is waiving the rights to jury trial, to confront 

witnesses against him or her, to have compulsory process for obtaining 

witnesses in the defendant’s favor, and to require the state to prove the 

defendant’s guilt beyond a reasonable doubt at a trial at which the defendant 

cannot be compelled to testify against himself or herself.” 

{¶15} When a trial court engages in a plea colloquy with the 

defendant, it must strictly comply with Crim.R. 11(C)(2)(c), which sets forth 

the constitutional rights a guilty plea waives. Thus, the trial court must 

explain to the defendant, either literally or in a reasonably intelligible 

manner, that a guilty plea waives (1) the right to a jury trial, (2) the right to 

confront one’s accusers, (3) the right to compulsory process to obtain 

witnesses, (4) the right to require the state to prove guilt beyond a reasonable 
Ross App. No. 09CA3136 11

doubt, and (5) the privilege against compulsory self-incrimination. Veney at 

syllabus and ¶¶18, 27 (stating that trial court must literally comply with 

Crim.R. 11(C)(2)(c), but its failure to do so will not invalidate a plea when 

the trial court adequately conveys the information to the defendant in a 

reasonably intelligible manner). Failure to do so renders the plea invalid. 

Id. at syllabus. 

{¶16} “The best way to ensure that pleas are entered knowingly and 

voluntarily is to simply follow the requirements of Crim.R. 11 when 

deciding whether to accept a plea * * *.” Clark at ¶29; see, also, State v. 

Ballard (1981), 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (stating that “the 

best method of informing a defendant of his constitutional rights is to use the 

language contained in Crim.R. 11(C), stopping after each right and asking 

the defendant whether he understands the right and knows that he is waiving 

it by pleading guilty”). Thus, “’[l]iteral compliance with Crim.R. 11, in all 

respects, remains preferable to inexact plea hearing recitations.’” Clark at 

¶29, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 

N.E.2d 51, at ¶19, fn.2. However, “a rote recitation of Crim.R. 11(C) is not 

required, and failure to use the exact language of the rule is not fatal to the 

plea.” Ballard, 66 Ohio St.2d at 480. Instead, the trial court need only 

“explain[] or refer[]” to the Crim.R. 11(C) protections “in a manner 
Ross App. No. 09CA3136 12

reasonably intelligible to that defendant.” Id.; see, also, Veney at ¶27 

(stating that “a trial court can still convey the requisite information on 

constitutional rights to the defendant even when the court does not provide a 

word-for-word recitation of the criminal rule, so long as the trial court 

actually explains the rights to the defendant”). Thus, a reviewing court 

should not invalidate a plea merely because a trial court did not engage in a 

“formalistic litany of constitutional rights.” Ballard, 66 Ohio St.2d at 480. 

{¶17} A trial court “may not relieve itself of the requirement of 

Crim.R. 11(C) by exacting comments or answers by defense counsel as to 

the defendant’s knowledge of his rights.” Id. at 481. However, a reviewing 

court may consider “such a colloquy * * * in the totality of the matter.” 2 Id. 

Thus, if the record shows that the trial court ascertained that defense counsel 

advised the defendant of his rights, a reviewing court may consider this as a 

factor in determining whether the totality of the circumstances supports the 

 

2

 The Supreme Court of Ohio has never explicitly overruled or limited this aspect of Ballard. However, we 

observe that subsequent cases seem to have limited any “totality of the circumstances” inquiry only when 

determining if the trial court substantially complied with Crim.R. 11(C)’s non-constitutional provisions. 

See, e.g., Veney. Moreover, Veney distinguished Ballard and stated that “the court cannot simply rely on 

other sources to convey these rights to the defendant” and that it would not “‘presume a waiver of these * * 

* important [constitutional] rights from a silent record.’” Id at ¶29, quoting Boykin v. Alabama (1969), 395 

U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. It is not clear whether this statement is intended to be a 

repudiation of the Ballard totality of the circumstances approach as it pertains to the constitutional rights 

outlined in Crim.R. 11(C)(2)(c), or whether this statement simply means that it will not allow “other 

sources” to substitute for the court’s duty to convey the information when the court completely fails to 

convey the information. Unlike Ballard, Veney involved a situation where the trial court completely failed 

to mention a certain right. In contrast, in Ballard the court explained the constitutional rights, just not in 

the exact terms of Crim.R. 11(C). Veney does not seem to reject any idea that a court may look to “other 

sources” as additional evidence that a court adequately advised a defendant of his constitutional rights. 

Thus, although the continuing validity of this proposition from Ballard may be in question, we do not 

believe that it has clearly been invalidated such that we are unjustified in following it. 
Ross App. No. 09CA3136 13

trial court’s finding that the defendant knowingly, intelligently, and 

voluntarily entered the plea. Id. (noting that “the record shows that the trial 

judge initially ascertained from the defense counsel that the defendant had 

been advised of his rights”); see, also, State v. McKenna, Trumbull App. No. 

2009-T-0034, 2009-Ohio-6154, at ¶67; State v. DeArmond (1995), 108 Ohio 

App.3d 239, 245, 670 N.E.2d 531, quoting Riggins v. McMackin (C.A.6, 

1991), 935 F.2d 790, 795 (construing Ohio Crim.R. 11), and citing North 

Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, fn.3 

(stating that inquiry into whether the trial court properly advised a defendant 

of the constitutional rights “is not limited solely to the information provided 

to the defendant by the trial court. We examine the totality of the 

circumstances surrounding the plea. ‘A defendant may learn of information 

not relayed to him by the trial court from other sources, such as his 

attorney’”); State v. Diaz (June 2, 1993), Lorain App. No. 92CA5499. 

{¶18} In State v. Saaty (Mar. 4, 1997), Franklin App. No. 96APA06-

777, the court applied this principle and concluded that although a defense 

counsel’s representation that counsel advised the defendant of his rights may 

constitute additional evidence that the court explained the right in a manner 

reasonably intelligible to the defendant, it cannot substitute for the court’s 
Ross App. No. 09CA3136 14

compliance with the rule when the court utterly fails to mention one of the 

constitutional rights. The court stated: 

“* * * [W]hile defense counsel advised the trial court he 

read aloud the plea forms to defendant and in his opinion 

defendant understood them, counsel’s actions cannot excuse the 

trial court’s failure to specifically inform defendant he was 

waiving his right to a jury trial. In response to questioning from 

the trial court, defense counsel in Ballard stated he had 

explained to defendant his constitutional rights, and he believed 

defendant understood them. The Ballard court considered 

defense counsel’s representations as additional proof that the 

trial court had meaningfully informed defendant of his right to a 

jury trial, stating, ‘[a]lthough the trial court may not relieve 

itself of the requirement of Crim.R. 11(C) by exacting 

comments or answers by defense counsel as to the defendant’s 

knowledge of his rights, such a colloquy may be looked to in 

the totality of the matter.’ Ballard, supra, at 481. 

Thus, where the trial court makes only an indirect or 

‘glancing’ reference to a constitutional right, a defense 

counsel’s representation that he informed a defendant of his 

constitutional rights can be ‘looked to in the totality of the 

matter’ in determining whether the trial court explained or 

referred to a constitutional right in a manner reasonably 

intelligible to that defendant. However, where the trial court 

has completely omitted mentioning a right specified in Boykin

and Ballard, defendant’s counsel’s representation is not 

sufficient; defendant’s plea is invalid and must be vacated. See 

[State v.] Sturm[ (1981), 66 Ohio St.2d 483, 422 N.E.2d 853]. 

Here, the trial court did not refer to the right to a jury trial in 

any manner. As Ballard dictates, the trial court’s exacting 

comments or answers from defendant’s attorney did not relieve 

it from the mandate of Crim.R. 11(C). Id.” 

 

{¶19} With the foregoing principles in mind, we turn to appellant’s 

specific argument—that the trial court failed to adequately advise him of his 

constitutional right to compulsory process. We recently considered the 
Ross App. No. 09CA3136 15

adequacy of a trial court’s explanation of the defendant’s right to 

compulsory process in State v. McDaniel, Vinton App. No. 09CA677, 2010-

Ohio-5215. In McDaniel, the trial court explained the defendant’s right to 

compulsory process as follows: “you’re waiving your right to bring in your 

own witnesses to subpoena those witnesses if necessary, to come in as a part 

of your defense. Do you understand you are waiving that right?” Id. at ¶16. 

The defendant asserted that the trial court’s explanation “did not sufficiently 

inform him that he could compel witnesses to testify.” Id. at ¶17. We 

disagreed. We observed that other Ohio courts have found similar 

statements sufficient to explain a defendant’s right to compulsory process. 

Id., citing State v. Ward, Montgomery App. No. 21044, 2006-Ohio-832, at 

¶12 (court’s statement that the defendant was giving up his right to have his 

own witnesses come and testify was “adequate, if less than ideal” when 

informing him of compulsory process right); State v. Anderson (1995), 108 

Ohio App.3d 5, 11-12, 669 N.E.2d 865 (finding that “[y]ou are giving up 

your right to call witnesses on your own behalf” informed the defendant of 

compulsory process right in a reasonably intelligible manner); State v. 

Thomas, Franklin App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding that 

“right to have your witnesses, should you have any, subpoenaed to the 
Ross App. No. 09CA3136 16

courtroom” informed the defendant of compulsory process right in a 

reasonably intelligible manner). 

{¶20} We further observed that some Ohio courts “have required the 

trial court to specifically inform the defendant of the power to compel the 

attendance of witnesses.” Id. at ¶18, citing State v. Gardner, Lorain App. 

No. 08CA009520, 2009-Ohio-6505, at ¶9 (court failed to reasonably apprise 

defendant of compulsory process right because it did not inform him that he 

could use the court’s subpoena power to compel witnesses’ attendance); 

State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, at ¶17 (stating 

that trial court “clearly informed” defendant of compulsory process right by 

stating that defendant had a right to subpoena witnesses); State v. Wilson,

Cuyahoga App. No. 82770, 2004-Ohio-499, at ¶16 (“The trial court must 

inform a defendant that it has the power to force, compel, subpoena, or 

otherwise cause a witness to appear and testify on the defendant’s behalf. 

Otherwise, the logical import of the court’s notice is that the defendant could 

present such witnesses as he could only secure through his own efforts.”)

(emphasis sic); see, also, State v. Rosenberg, Cuyahoga App. No. 84457, 

2005-Ohio-101, at ¶14 (stating that “strict compliance with Crim.R. 11(C) 

requires the trial court to inform the defendant that witnesses could be 

‘forced,’ ‘subpoenaed,’ ‘compelled,’ ‘summoned,’ or ‘required’ to appear” 
Ross App. No. 09CA3136 17

and that “[m]erely advising a defendant that he has ‘the right to bring in 

witnesses to this courtroom to testify for your defense’ is insufficient to 

apprise a defendant of this constitutional right to compulsory process”); 

State v. Cummings, Cuyahoga App. No. 83759, 2004-Ohio-4470 (holding 

that informing defendant he had a right to “call witnesses” did not 

sufficiently advise him of compulsory process right). 

{¶21} We declined to specifically adopt either view, but instead, 

determined that “even under the more restrictive cases, the trial court’s 

statement is satisfactory because the statement indicates that [the defendant] 

could have had the court issue subpoenas to ensure the presence of 

witnesses. The gist of the trial court’s statement was that [the defendant] 

had the right to subpoena witnesses to testify at any potential trial. We find 

that this would reasonably apprise an individual of the nature of his 

constitutional right to compulsory process.” Id. at ¶19. 

{¶22} In the case at bar, the trial court’s statement adequately advised 

appellant of his right to compulsory process by using the literal language of 

the rule and by explaining the term in reasonably intelligible terms. The trial 

court explained to appellant that he has “the right to a compulsory process. 

That means you have the right to have subpoena’s [sic] issued for any 

witness that you want to appear on your behalf in court.” The trial court’s 
Ross App. No. 09CA3136 18

statement that appellant has “the right to a compulsory process” mirrors the 

language used in Crim.R. 11(C)(2)(c) and as such, constitutes literal, and 

hence strict, compliance with the rule. See State v. Senich, Cuyahoga App. 

No. 82581, 2003-Ohio-5082, at ¶31, citing State v. Strawther (1978), 56 

Ohio St.2d 298, 383 N.E.2d 900 (stating that use of term “compulsory 

process” sufficient to explain the right). We therefore reject appellant’s 

assertion that the trial court did not strictly comply with Crim.R. 

11(C)(2)(c). 

{¶23} Not only did the court literally comply with the rule, it went a 

step further and explained the compulsory process right in terms that were at 

least reasonably intelligible to appellant. While slight nuances exist between 

the trial court’s statement in the case at bar and the trial court’s statement in 

McDaniel, both statements advised that pleading guilty waives the right to 

have subpoenas issued. We agree with those cases holding that a trial 

court’s statement to the effect that a guilty plea waives the right to subpoena 

witnesses sufficiently advises a defendant in a reasonably intelligible manner 

of his compulsory process right. See State v. Moulton, Cuyahoga App. No. 

93726, 2010-Ohio-4484, at ¶12 (concluding that trial court “clearly 

informed” defendant of compulsory process right by stating that defendant 

had a right to “subpoena and call witnesses”); State v. Thomas, Franklin 
Ross App. No. 09CA3136 19

App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding trial court’s statement 

that defendant had the “right to have your witnesses, should you have any, 

subpoenaed to the courtroom” sufficient explained compulsory process 

right); State v. Moorefield (Oct. 8, 1999), Champaign App. No. 99CA4 

(stating that trial court’s explanation that defendant’s plea would waive his 

“right to make witnesses attend and testify” explained compulsory process 

right “in a functional sense” so as to be “fully sufficient to make [it] 

reasonably intelligible” to defendant); State v. Lelux (Mar. 4, 1997), Franklin 

App. No. 96APA08-1018 (noting that term “subpoena” is so frequently used 

that its meaning is commonly known and understood by laypeople and 

holding that trial court’s explanation of compulsory process right as “the 

right to subpoena witnesses for the trial” reasonably informed defendant of 

his constitutional right). 

{¶24} Moreover, when the court asked appellant whether he 

understood that pleading guilty waives his right to compulsory process, i.e., 

the right to have subpoenas issued, appellant stated that he did. Although 

determining what a defendant subjectively understands is not an exact 

science, “if the defendant receives the proper information, then [a court] can 

ordinarily assume that [the defendant] understands that information.” State 

v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. We already 
Ross App. No. 09CA3136 20

determined that the trial court relayed accurate information. The court both 

literally complied with the rule and further explained the phrase 

“compulsory process” in a reasonably intelligible manner. Thus, we may 

assume that appellant understood that information. Nothing in the record 

affirmatively suggests that he did not understand. At no point during the 

plea hearing did he indicate, in any manner, any sort of confusion over the 

meaning of any of the court’s statements or the rights he waived by pleading 

guilty. Rather, every time the court asked him if he understood, appellant 

indicated that he did. Had appellant not understood what the court meant by 

use of the terms “compulsory process” and “subpoena,” he should have so 

advised the court when asked. 

{¶25} As additional evidence that the trial court adequately advised 

appellant of his compulsory process right, we point out that appellant stated 

that he had reviewed the plea petition with his attorneys. See Ballard

(approving the idea that a court may look to defense counsel’s 

representations as additional evidence that defendant understood Crim.R. 

11(C)(2)(c) rights). The plea petition recited that appellant understood that 

he has the constitutional right “to use the power and process of the Court to 

compel the production of any evidence, including the attendance of any 

witnesses in my favor.” This is the precise language that appellant asserts 
Ross App. No. 09CA3136 21

the court should have used during the plea hearing to explain his compulsory 

process right. We do not believe that the trial court was required to repeat 

this exact phraseology at the plea hearing. Rather, the trial court used the 

exact language set forth in Crim.R. 11(C) and informed appellant of his 

subpoena right. Both statements sufficiently advised him of his compulsory 

process right. The plea petition further defines that right, but there is no 

requirement that the court use that definition during the plea hearing. 

Instead, the plea petition may be used as additional evidence that the 

defendant understood what the court meant by the terms “compulsory 

process” and “subpoena.” See Ballard, supra. 

{¶26} To the extent appellant argues that the trial court possessed 

some heightened duty to further define the concept of compulsory process, a 

term not commonly understood by a layperson,3

 we note that at least one 

other court has rejected this exact argument. See State v. Mundy (Oct. 18, 

1996), Greene App. No. 96CA1. In Mundy, the defendant asserted that he 

could not have entered his plea in a knowing and voluntary manner because 

the phrase “compulsory process” is not known to the average layperson. In 

 

3

 As a general proposition, we do not disagree with appellant’s suggestion that a trial court should consider 

defining legal terms of art that may be unknown to a layperson or a person with mental retardation. 

However, the Ohio Supreme Court has never stated that when the court strictly and literally complies with 

the rule, it must also define the constitutional terms used in Crim.R. 11(C)(2)(c). Moreover, we are 

unwilling to inject such a requirement into what is already an apparently much-litigated area of the law. 

Rather, once a trial court explains the constitutional rights, either strictly or in terms reasonably intelligible 
Ross App. No. 09CA3136 22

rejecting the defendant’s argument, the court first observed that the trial 

court used the language of Crim.R. 11(C) when advising the defendant of 

the rights he waived by pleading guilty. The court then observed that 

although “the trial court might have gone beyond the language of Rule 11 in 

explaining the right of compulsory process for obtaining favorable 

witnesses, it was not required to do so and, from our review of the record, 

there is nothing to suggest that [the defendant] did not mean what he said 

when he responded affirmatively to the court’s question as to whether he 

understood he was giving up his right to compulsory process for obtaining 

favorable witnesses.” The court additionally noted that the defendant signed 

a petition to enter a guilty plea in the presence of his attorney and that in the 

petition, the defendant “acknowledged that he had a right, if he stood upon 

his plea of not guilty and went to trial, ‘to compulsory process for obtaining 

witnesses in my favor.’” 

{¶27} The case at bar is quite similar to Mundy. In both cases, the 

courts used the language set forth in Crim.R. 11(C). In both cases, the 

courts asked whether the defendant (in Mundy) and appellant (in the case 

sub judice) understood the compulsory process right and both parties 

indicated that they did. In neither case did either party indicate a failure to 

 

to the defendant, it possesses no further duty to define those rights, unless the defendant expresses 

confusion or misunderstanding. 
Ross App. No. 09CA3136 23

understand this right. Furthermore, in both cases, the plea petitions recited 

and explained the compulsory process right and both parties acknowledged 

that they understood that right. Under these circumstances, we can only 

conclude that appellant meant what he said. There is nothing in the record to 

suggest that appellant, despite his mental retardation, did not understand his 

right to compulsory process. 

{¶28} Moreover, to the extent appellant’s argument might be 

construed as asserting that he was not competent to enter a guilty plea,4

 we 

disagree. Without question, the conviction of a defendant who is not 

competent to enter a plea violates due process of law. See State v. Skatzes, 

104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶155, citing Drope 

v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103, and 

State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433. However, in 

the absence of evidence to the contrary, a criminal defendant is rebuttably 

presumed competent to enter a guilty plea. See R.C. 2945.37(G); State v. 

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶45. A 

finding of incompetency is not automatic simply because a defendant is 

labeled mentally retarded. See Id. at ¶48, quoting Atkins v. Virginia (2002), 

 

4

 Appellant argues, in not so many words, that his mental retardation rendered him unable to understand the 

terms “compulsory process” and “subpoena.” An assertion that a defendant lacks the ability to understand 

the proceedings, or a concept, is an assertion that the defendant is not competent. See Godinez, infra, 509 

U.S. 401 fn.12 (“The focus of a competency inquiry is the defendant’s mental capacity; the question is 
Ross App. No. 09CA3136 24

536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (stating that 

“’[m]entally retarded persons frequently * * * are competent to stand 

trial’”); State v. Hall (Feb. 25, 2000) Jackson App. No. 99CA847, citing 

State v. Barnhart (Sept. 24, 1997), Washington App. No. 96CA32. Rather, a 

court will presume that the defendant is competent, unless the defendant 

shows that the defendant is unable to understand the proceedings or to assist 

in the defense. Were at ¶45. “The test for determining whether a defendant 

is competent to stand trial [or to plead guilty] is ‘”’whether [the defendant] 

has sufficient present ability to consult with his lawyer with a reasonable 

degree of rational understanding—and whether he has a rational as well as a 

factual understanding of the proceedings against him.’”’” Id., quoting State 

v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, quoting Dusky v. 

United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824; see, 

also, Godinez v. Moran (1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 

321. A trial court possesses no need to sua sponte inquire into a defendant’s 

competency unless the record contains “’sufficient indicia of incompetence,’ 

such that an inquiry * * * is necessary to ensure the defendant’s right to a 

fair trial.” Berry, 72 Ohio St.3d at 359, quoting Drope, 420 U.S. at 175; see, 

 

whether he has the ability to understand the proceedings”) (emphasis sic). Thus, one might state that to be 

presumed competent is to be presumed competent to understand the Crim.R. 11(C) rights. 
Ross App. No. 09CA3136 25

also, State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, 

at ¶65. 

{¶29} In the case at bar, we believe that the record demonstrates that 

appellant was competent to plead guilty and that the record does not contain 

sufficient indicia of incompetence to have required the court to ascertain, sua 

sponte, appellant’s competency. Throughout the plea proceedings, appellant 

clearly answered all of the court’s questions and indicated his understanding 

of all the information that the court relayed. When the court asked appellant 

whether he suffered from any mental disability, appellant responded that he 

did not. Although the record contains evidence that appellant has been 

identified as mentally retarded since he was a young child, mental 

retardation alone does not constitute a sufficient indicia of incompetency to 

require a trial court to sua sponte conduct a competency inquiry.5

 See State 

v. Beck, Hamilton App. Nos. C-020432, C-020449, and C-030062, 2003-

Ohio-5838, at ¶12 (citations omitted). As the United States Supreme Court 

has recognized, a mentally retarded individual may be competent to enter a 

guilty plea. See Atkins, supra; see, also, Were at ¶48. The Court has 

 

5

 Given the nature of the charges, it may have been preferable for the trial court in the case sub judice to 

hold a competency hearing. However, a competency hearing was not constitutionally required. See State 

v. Bock (1986), 28 Ohio St.3d 108, 109, 502 N.E.2d 1016 (stating that “the right to a hearing on the issue of 

incompetency rises to constitutional proportions only when the record contains sufficient indicia of 

incompetency * * * such that a formal inquiry into defendant’s competency is necessary to protect his right 

to a fair trial”). It is not reversible error for a trial court to fail to hold a competency hearing when the issue 

is not raised prior to trial and when the record fails to show sufficient indicia of incompetency. See State v. 
Ross App. No. 09CA3136 26

identified no presumption that a mentally retarded individual is presumed 

incompetent. In fact, the proper procedure is that all criminal defendants are 

presumed competent and the burden rests with the defendant to prove 

incompetency. See R.C. 2945.37(G); Were at ¶45. 

{¶30} We reiterate that in the case at bar, nothing in the record raises 

sufficient indicia of incompetency to suggest that appellant was not 

competent to enter a guilty plea. As such, appellant was competent to 

understand the plea proceeding, including his right to compulsory process, 

and to speak up if he did not. If appellant did not understand what the court 

meant by the words “compulsory process” and “subpoena,” he should have 

said so. Instead, he affirmatively indicated that he understood. Unless a 

defendant indicates in some way that he is confused or does not understand 

the meaning of “compulsory process” or “subpoena,” we do not believe that 

a trial court possesses an independent duty to engage in a lengthy 

dissertation of the meaning of the court’s subpoena power and the 

constitutional right to compulsory process—even when the defendant is 

mentally retarded. Furthermore, appellant informed the court that he did not 

suffer from any mental disability, that he understood everything the court 

stated, and that he had reviewed the plea petition with his attorneys. 

 

Eley (1996), 77 Ohio St.3d 174, 183-184, 672 N.E.2d 640; Bock at paragraph one of the syllabus; State v. 

Borchers (1995), 101 Ohio App.3d 157, 159, 655 N.E.2d 225; see, also, Hall, supra. 
Ross App. No. 09CA3136 27

{¶31} We find the case at bar similar to State v. Bennett (July 18, 

1991), Montgomery App. No. 12208. In Bennett, the defendant asserted that 

he did not understand the effect of his plea when he could not “adequately 

read or write” and when “his mental capacity is quite diminished, even to the 

point of having been labeled ‘mentally retarded’ while in school.” The court 

rejected the defendant’s argument, explaining that the defendant “failed to 

point out how these matters, if true, impaired his ability to understand the 

effect of his plea. A criminal defendant may very well understand the effect 

of his plea, after proper explanation, even though he is subject to those 

limitations.” The court further observed that the trial court asked the 

defendant “several times” whether he understood, and each time, appellant 

responded that he did. 

{¶32} Similarly, in the case sub judice, the record does not support 

any finding that appellant’s status as a mentally retarded individual 

precluded him from understanding the consequences of his guilty plea, 

including that he would waive his right to compulsory process. We 

emphasize, again, that appellant never gave any indication that he failed to 

comprehend the proceedings or what the court meant by the terms 

“compulsory process” and “subpoena.” Had he done so, then the trial court 

should have inquired further and possibly further explained the concepts. In 
Ross App. No. 09CA3136 28

the absence of some confusion on appellant’s part, the trial court possessed 

no independent duty to further define those terms. 

{¶33} Furthermore, allowing a defendant to state in open court that he 

understood a Crim.R. 11(C) right, but then argue on appeal that he did not, 

would contravene the general principle that guilty pleas should be final. See 

Ballard, 66 Ohio St.2d at 479 (stating that in accepting a guilty plea, a court 

must protect “the interest of finality”). As the United States Supreme Court 

explained in United States v. Timmreck (1979), 441 U.S. 780, 784, 99 S.Ct. 

2085, 60 L.Ed.2d 634: 

“‘Every inroad on the concept of finality undermines 

confidence in the integrity of our procedures; and, by increasing 

the volume of judicial work, inevitably delays and impairs the 

orderly administration of justice. The impact is greatest when 

new grounds for setting aside guilty pleas are approved because 

the vast majority of criminal convictions result from such pleas. 

Moreover, the concern that unfair procedures may have resulted 

in the conviction of an innocent defendant is only rarely raised 

by a petition to set aside a guilty plea.’” 

Id., quoting United States v. Smith (C.A.7, 1971), 440 F.2d 521, 528-529 

(Stevens, J., dissenting); see, also, Hill v. Lockhart (1985), 474 U.S. 52, 58, 

106 S.Ct. 366, 88 L.Ed.2d 203. Because “[a] plea of guilty is a complete 

admission of guilt,” State v. Stumpf (1987), 32 Ohio St.3d 95, 104, 512 

N.E.2d 598, “absent some assertion that a conviction is inherently erroneous, 

courts should be reluctant to disturb the finality of convictions based on 
Ross App. No. 09CA3136 29

guilty pleas.” State v. Graves (July 7, 1993), Medina App. No. 2203. In the 

case at bar, there is nothing so inherently erroneous regarding appellant’s 

guilty plea that we should tip the scales of justice in order to invalidate 

appellant’s plea. 

{¶34} Accordingly, based upon the foregoing reasons, we overrule 

appellant’s first assignment of error. 

IV. 

ALLIED OFFENSES OF SIMILAR IMPORT 

{¶35} In his second assignment of error, appellant argues that the trial 

court erred by convicting him of aggravated arson and tampering with 

evidence when those two offenses constitute allied offenses of similar 

import. He contends that the commission of aggravated arson necessarily 

results in commission of tampering with evidence. 

A. 

WAIVER ISSUES 

{¶36} Before considering the merits of appellant’s assignments of 

error, we address the state’s arguments that (1) appellant waived any alleged 

error by failing to object at the sentencing hearing, and (2) he cannot appeal 

the sentence because he received the sentence for which he negotiated. We 

reject both of the state’s arguments. 
Ross App. No. 09CA3136 30

1. 

PLAIN ERROR 

{¶37} When a defendant fails to object to the imposition of multiple 

sentences for allied offenses of similar import, we may recognize the error if 

it constitutes plain error. It is well settled that we may notice plain errors or 

defects affecting substantial rights, despite an appellant's failure to bring 

them to the attention of the trial court. Crim.R. 52(B). Plain error exists 

when the error is plain or obvious and when the error “affect[s] ‘substantial 

rights.’” The error affects substantial rights when “‘but for the error, the 

outcome of the trial [proceeding] clearly would have been otherwise.’” 

State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, 868 N.E.2d 1018, 

at ¶11, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 

1240. We take notice of plain error with the utmost of caution, under 

exceptional circumstances, and only to prevent a manifest miscarriage of 

justice. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 

995, at ¶78; State v. Patterson, Washington App. No. 05CA16, 2006-Ohio1902, at ¶14. A reviewing court should consider noticing plain error only if 

the error “‘“seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.”’” Barnes, 94 Ohio St.3d at 27, quoting United States 

v. Olano (1993), 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508, 
Ross App. No. 09CA3136 31

quoting in turn United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 

391, 80 L.Ed. 555. We have previously recognized that plain error exists 

when a defendant is convicted of multiple offenses that constitute allied 

offenses of similar import. See State v. Shaw, Scioto App. No. 07CA3190, 

2008-Ohio-5910, at ¶16. In the case at bar, we do not believe that plain 

error exists. 

2. 

EFFECT OF NEGOTIATED SENTENCE ON APPEALABILITY OF 

ALLIED OFFENSE ISSUE 

{¶38} A criminal defendant has the right to appeal the issue of allied 

offenses under R.C. 2941.25, even if the defendant entered into a plea 

bargain and even if the sentence was an agreed sentence under R .C. 

2953.08(D). State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 

N.E.2d 923, paragraph one of the syllabus. Underwood further held that a 

trial court is prohibited from imposing individual sentences for “counts that 

constitute allied offenses of similar import.” Underwood at ¶26. 

{¶39} Based upon the clear holding of Underwood, we reject the 

state’s argument that appellant is prohibited from appealing the multiple 

sentences for allied offenses when the sentence resulted from a plea 

negotiation. 

B. 
Ross App. No. 09CA3136 32

ALLIED OFFENSE ANALYSIS 

{¶40} R.C. 2941.25 sets forth the statutory analysis for determining 

whether offenses constitute allied offenses of similar import: 

(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 

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. 

{¶41} The Supreme Court of Ohio has interpreted R.C. 2941.25 to 

involve a two-step analysis: 

“’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 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.’” 

 

State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at 

¶10, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 

N.E.2d 816; see, also, State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 
Ross App. No. 09CA3136 33

905 N.E.2d 154; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 

N.E.2d 181, at ¶14. 

{¶42} To determine whether offenses are allied offenses of similar 

import under R.C. 2941.25(A), courts must “compare the elements of 

offenses in the abstract, i.e., without considering the evidence in the case.” 

Cabrales at ¶27; see, also, Harris at ¶12. The elements need not, however, 

be identical for the offenses to constitute allied offenses of similar import. 

Winn at ¶12. The key word is “similar,” not “identical.” Winn at ¶12; see, 

also, Harris at ¶16 (stating that the offenses need not exactly align to 

constitute allied offenses). Offenses constitute allied offenses of similar 

import if, “‘in comparing the elements of the offenses in the abstract, the 

offenses are so similar that the commission of one offense will necessarily 

result in commission of the other.’”6 Winn at ¶12, quoting Cabrales at ¶26. 

 6

 We point out what appears to us to be somewhat of an anomaly in some of the Supreme Court of 

Ohio’s explanation of the allied offense analysis. On at least two occasions, the Court has stated that it 

applies the “same analysis to determine whether two aggravating circumstances merge as it utilizes to 

decide whether two offenses are allied offenses of the same import.” State v. Franklin, 97 Ohio St.3d 1, 

2002-Ohio-5304, 776 N.E.2d 26, at ¶51; see, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 197, 473 

N.E.2d 264, fn.27 (stating that in concluding that death penalty specifications should have merged, court 

was “guided by principles espoused in considering the doctrine of merger under R.C. 2941.25”). The court 

has stated that in determining whether death penalty specifications should merge, the inquiry is “whether 

the specifications at issue ‘ar[o]se from the same act or indivisible course of conduct,’ and were thus, in 

fact, duplicative.” State v. Garner (1995), 74 Ohio St.3d 49, 53, 656 N.E.2d 623. Whether two offenses 

“arose from an indivisible course of conduct” seems to us to be an entirely different question than whether 

a comparison of the elements in the abstract leads to a conclusion that the commission of one offense 

necessarily results in the other. Thus, we are confused by the court’s statement in Franklin that the two 

tests are one and the same. We choose, therefore, to follow the Supreme Court of Ohio’s more recent 

pronouncements regarding R.C. 2941.25 and to apply the more recently-outlined analysis. Perhaps a more 

accurate statement would be that the two analyses are similar in respect to the application of the second part 

of the allied offense test, i.e., whether the offenses were committed with a separate animus. 
Ross App. No. 09CA3136 34

{¶43} As the foregoing analysis directs, we being by comparing the 

elements of the two offenses in the case at bar, aggravated arson and 

tampering with evidence, in the abstract. 

{¶44} The aggravated arson statute, R.C. 2909.02, provides: 

(A) No person, by means of fire or explosion, shall 

knowingly do any of the following: 

(1) Create a substantial risk of serious physical harm to 

any person other than the offender; 

(2) Cause physical harm to any occupied structure; 

* * * * 

The tampering with evidence statute, R.C. 2921.12, provides: 

(A) No person, knowing that an official proceeding or 

investigation is in progress, or is about to be or likely to be 

instituted, shall do any of the following: 

(1) Alter, destroy, conceal, or remove any record, 

document, or thing, with purpose to impair its value or 

availability as evidence in such proceeding or investigation 

{¶45} When we compare the elements of these two offenses in the 

abstract, we do not find that they correspond to such a degree that 

commission of the one necessarily results in the commission of the other. 

The elements we must compare are (1) fire or explosion, (2) knowingly, (3) 

(a) create substantial risk of serious physical harm, or (b) cause physical 

harm to occupied structure (aggravated arson); and (1) knowing, (2) official 

proceeding or investigation, (3) alter, destroy, conceal, remove, (4) purpose 

to impair, (5) value or availability as evidence (tampering with evidence). 

One can commit the offense of tampering with evidence without necessarily 
Ross App. No. 09CA3136 35

committing aggravated arson. Tampering with evidence does not require a 

fire or explosion. Furthermore, one can commit the offense of aggravated 

arson without necessarily tampering with evidence. One can knowingly 

create a substantial risk of serious physical harm or cause physical harm to 

an occupied structure by means of fire or explosion without necessarily 

altering, destroying, concealing, or removing with the purpose to impair the 

value of an item or its availability as evidence. An aggravated arson does 

not necessarily result in the commission of tampering with evidence. Cf. 

State v. Kelly, Franklin App. No. 02AP-195, 2002-Ohio-5797, at ¶32 

(concluding that aggravated arson and felonious assault do not constitute 

allied offenses because “felonious assault need not be committed by fire or 

explosion” and “aggravated arson necessarily is committed with fire or an 

explosive and does not [necessarily] require that the offender cause or 

attempt to cause harm to any person”); State v. Brown, Montgomery App. 

No. 18643, 2002-Ohio-277 (holding that felony murder and aggravated 

arson were not allied offenses even though aggravated arson caused the 

victim’s death, because “[a]ggravated arson can be committed without a 

killing, and felony murder can be committed by means of a first or second 

degree felony other than [by fire or explosion]”). 
Ross App. No. 09CA3136 36

{¶46} Appellant nevertheless asserts that we should follow the court’s 

analysis in State v. Moore (Oct. 21, 1987), Hamilton App. No. C-860814, 

and conclude that aggravated arson and tampering with evidence constitute 

allied offenses of similar import. We do not find Moore directly apposite 

and decline to follow it. 

{¶47} In Moore, the court determined that arson (not aggravated) and 

tampering with evidence constitute allied offenses. The court found that the 

commission of arson will result in the commission of tampering with 

evidence. At the time Moore was decided, the arson statute, R.C. 2909.03 

stated: “(A) No person, by means of fire or explosion, shall knowingly: (1) 

Cause, or create a substantial risk of, physical harm to any property of 

another without his consent.” The tampering with evidence statute stated: 

“(A) No person, knowing that an official proceeding or investigation is in 

progress, or is about to be or is likely to be instituted, shall do any of the 

following: (1) Alter, destroy, conceal or remove any record, document, or 

thing, with purpose to impair its value or availability as evidence in such 

proceeding or investigation.” The court stated that both statutes require a 

“knowing” state of mind and prohibit the destruction of property. The court 

determined that “[t]he use of fire to destroy potential evidence will result in 

the commission of both arson and tampering.” 
Ross App. No. 09CA3136 37

{¶48} In the case at bar, the aggravated arson statute reads differently 

than the arson statute considered in Moore. The aggravated arson statute, 

unlike the arson statute in Moore, does not involve physical harm to “any 

property,” but rather, it involves either (1) a substantial risk of serious 

physical harm to any person other than the offender, or (2) physical harm to 

any occupied structure. Thus, the aggravated arson statute is more specific 

than the arson statute and requires more than just damage to “any property.” 

Thus, we find Moore distinguishable and, therefore, decline to follow it. 

{¶49} Because we determined that the commission of aggravated 

arson does not necessarily result in the commission of tampering with 

evidence, or vice versa, we have no need to consider whether appellant 

committed the offenses separately or with the same animus. 

{¶50} Accordingly, based upon the foregoing reasons, we overrule 

appellant’s second assignment of error and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 

Kline, J., concurring. 

{¶51} I concur in judgment and opinion. I write separately to explain 

how I distinguish State v. Moore (Oct. 21, 1987), Hamilton App. No. C860814, which the appellant relies on in his argument that the offenses of 
Ross App. No. 09CA3136 38

aggravated arson and tampering with evidence constitute allied offenses of 

similar import. See Second Assignment of Error. 

{¶52} Moore relies on the assumption that arson involves an attempt 

to destroy property with fire or explosion. And since arson involves an 

attempt to destroy property, it is an allied offense to tampering because 

tampering also prohibits the destruction of property where the malefactor 

knows that the property is likely to be evidence in an official investigation. 

Id. at ¶46-49. 

{¶53} In my view, the Moore analysis fails because the use of fire or 

explosion does not destroy evidence related to arson. That is, even if the 

property is entirely consumed, the resulting ashes are, in fact, evidence of 

arson. The fire may or may not consume evidence of another crime or other 

evidence related to arson but the fire does not necessarily destroy evidence 

of arson because the use of fire is an element of arson. Therefore, an 

offender may commit the crime of aggravated arson without necessarily 

committing the crime of tampering with evidence. It is, of course, easy to 

see that an individual may tamper with evidence without committing arson. 

Therefore these offenses “are not allied offenses because the commission of 

one will not automatically result in commission of the other.” State v. 

Rance, 85 Ohio St.3d 632, 639, 1999-Ohio-291, citing State v. Preston
Ross App. No. 09CA3136 39

(1986), 23 Ohio St.3d 64, 65. Accordingly, for the above reason, I also 

reject Moore and agree that the offenses of aggravated arson and tampering 

with evidence do not constitute allied offenses of similar import. 
Ross App. No. 09CA3136 40

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant 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 Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Harsha, J.: Concurs in Judgment and Opinion. 

Kline, J.: Concurs in Judgment and Opinion with Opinion. 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland 

 Presiding 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.