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

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellee 

 v. 

DAVID T. WASHINGTON 

 Appellant 

C.A. No. 11CA010015 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 09CR078387 

DECISION AND JOURNAL ENTRY

Dated: May 14, 2012 

 

WHITMORE, Presiding Judge. 

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

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

I 

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

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

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

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

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

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

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

Johnson in the first instance, this Court reversed Washington’s sentence and remanded the matter 
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so that the trial court could consider whether any of his offenses were allied offenses of similar 

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

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

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

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

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

charge. The court ordered the sentences to run consecutively. 

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

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

II 

Assignment of Error Number One

THE TRIAL COURT ERRED IN IMPOSING SENTENCES FOR BOTH 

FAILURE TO COMPLY, AND OBSTRUCTING OFFICIAL BUSINESS, 

WHICH ARE ALLIED OFFENSES OF SIMILAR IMPORT. 

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

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

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

(A) Where the same conduct by defendant can be construed to constitute two or 

more allied offenses of similar import, the indictment or information may contain 

counts for all such offenses, but the defendant may be convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar 

import, or where his conduct results in two or more offenses of the same or 

similar kind committed separately or with a separate animus as to each, the 

indictment or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them. 

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

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

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

 

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

2941.25(B). 

{¶7} “When determining whether two offenses are allied offenses of similar import 

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Johnson, 

128 Ohio St.3d 153, 2010-Ohio-6314, at syllabus. The statutory elements of each offense are not 

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

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

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

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

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

¶ 78 (O’Donnell, J., concurring). 

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

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

conduct. Id. at ¶ 47. One does so by asking “whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one without

committing the other.” (Emphasis sic.) Id. at ¶ 48. Second, one must ask whether the offenses 

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

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

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

¶ 50. 

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

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

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

 

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

¶ 64. Offenses are “‘allied’ when their elements align to such a degree that commission of one 

offense would probably result in the commission of the other offense.” Id. at ¶ 66. They are of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

not far from where he left the car. Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

obstructing official business count, the prosecutor stated: 
6 

 

Obstructing official business has to do, it’s very [] similar to the assault on a 

police officer, both counts of that is when [Washington] ran he imperiled not only 

the officers’ lives, and you will see as Officer [Larry] Miller is pursuing to catch 

up to this chase, the people in front of him necessitated him slamming on his 

brakes, dodging other people on the road, so not only was Officer Miller and the 

other officers in danger, but so were other people like you that were out there 

driving eastbound on I-90 on February 26th of this year. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

concurring). 

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

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

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

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

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

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

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

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

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

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

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

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

animus. 
8 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Assignment of Error Number Two

THE VERDICT FOR OBSTRUCTING OFFICIAL BUSINESS IS AGAINST 

THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF MR. 

WASHINGTON’S RIGHTS UNDER THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE 

CONSTITUTION. 

Assignment of Error Number Three

THE VERDICT FOR OBSTRUCTING OFFICIAL BUSINESS IS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR. 

WASHINGTON’S RIGHTS UNDER THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE 

CONSTITUTION. 

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

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

manifest weight of the evidence. 

Under the doctrine of res judicata, a final judgment of conviction bars a convicted 

defendant who was represented by counsel from raising and litigating in any 

proceeding except an appeal from that judgment, any defense or any claimed lack 

of due process that was raised or could have been raised by the defendant at the 

trial, which resulted in that judgment of conviction, or on an appeal from that 

judgment. 

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

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

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

been, litigated on direct appeal.’” State v. McShepard, 9th Dist. No. 11CA010000, 2011-Ohio6752, ¶ 13, quoting State v. Widman, 9th Dist. No. 00CA007681, 2001 WL 519493, *1 (May 16, 

2001). 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

assignments of error are overruled. 

III 

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

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

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

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

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

consistent with the foregoing opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 
11 

 

 There were reasonable grounds for this appeal. 

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

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

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

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

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

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

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

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

 Costs taxed equally to both parties. 

 

 BETH WHITMORE 

 FOR THE COURT 

BELFANCE, J. 

CONCURS.

CARR, J. 

CONCURRING IN PART, AND DISSENTING IN PART.

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

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

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

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

 

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

recognized and articulated the appropriate test as follows: 

In Johnson at ¶ 44, the Ohio Supreme Court held that in determining whether two 

offenses are allied offenses of similar import, “the conduct of the accused must be 

considered.” The court must first determine “whether it is possible to commit one 

offense and commit the other with the same conduct,” and, if so, then “the court 

must determine whether the offenses were committed by the same conduct, i.e. ‘a 

single act, committed with a single state of mind.’” Id. at ¶ 48, 49, quoting State 

v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J. concurring). 

If the same conduct constituted both offenses, then they must be merged. 

Johnson at ¶ 50. Failure to merge allied offenses of similar import constitutes 

plain error, and prejudice exists even where a defendant’s sentences are to run 

concurrently because “a defendant is prejudiced by having more convictions that 

are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 

31. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

irrespective of any argument or even agreement of the parties. 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

APPEARANCES:

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

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

Attorney, for Appellee.