[Cite as State v. Frazier, 2014-Ohio-3025.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

STATE OF OHIO, : Case No. 13CA5 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

STEPHEN E. FRAZIER, : 

 : RELEASED: 6/30/2014 

 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio State Public Defender, and Terrence K. Scott, Ohio State 

Assistant Public Defender, Columbus, Ohio, for appellant. 

Justin Lovett, Jackson County Prosecuting Attorney, and Pat Story, Jackson County 

Assistant Prosecuting Attorney, Jackson, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Stephen Frazier set fire to a camper occupied by his mother and stepfather. Frazier argues his convictions for two counts of aggravated arson are allied 

offenses of similar import that he committed with the same animus, so the trial court 

should have merged his convictions at sentencing. The state concedes Frazier is 

correct and we agree. Because it is possible to commit R.C. 2909.02(A)(1) and (A)(2) 

with the same conduct, the offenses are of similar import. And, the record shows 

Frazier committed the offenses as part of a single act with the same animus. Thus, his 

convictions for aggravated arson are allied offenses of similar import and the trial court 

erred by failing to merge them. 

I. FACTS 
Jackson App. No. 13CA5 2

{¶2} This case stems from a fire that damaged the camper where Sandra and 

Jimmie Russell were temporarily living. On the night in question Frazier went to his 

mother and step-father’s camper and started the fire with their propane tank. The fire 

spread to the body of the camper while the Russells were still inside, but fortunately, 

Jimmie Russell was able to put out the fire and no one was injured. The Jackson 

County Grand Jury returned a two-count indictment against Frazier, charging him with 

one count of aggravated arson in violation of R.C. 2909.02(A)(1), a first-degree felony, 

and one count of aggravated arson in violation of R.C. 2909.02(A)(2), a second-degree 

felony. Frazier pleaded not guilty and following a trial, the jury convicted him of both 

counts. 

{¶3} At the sentencing hearing, the trial court found that Frazier’s convictions 

were allied offenses and the state agreed. Nevertheless, in its sentencing entry the 

court imposed a sentence of eight years incarceration on each count, to be served 

concurrently. This appeal followed. 

II. ASSIGNMENT OF ERROR 

{¶4} Frazier raises one assignment of error for our review: 

1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED 

SEPARATE SENTENCES UPON STEPHEN E. FRAZIER FOR 

OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT 

COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND 

SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES 

UNDER R.C. 2941.25. 

III. STANDARD OF REVIEW 
Jackson App. No. 13CA5 3

{¶5} We review a trial court’s determination of whether offenses should merge 

pursuant to R.C. 2941.25 de novo.1

 State v. Williams, 134 Ohio St.3d 482, 2012-Ohio5699, 983 N.E.2d 1245, ¶ 12, 28; State v. Love, 4th Dist. Hocking No. 13CA16, 2014-

Ohio-1603, ¶ 17. Accordingly we must independently determine, without deference to 

the trial court’s conclusion, whether R.C. 2941.25 allows multiple convictions under the 

facts in this case. Williams at ¶ 25-26. 

IV. LAW AND ANALYSIS 

{¶6} “R.C. 2941.25 ‘codifies the protections of the Double Jeopardy Clause of 

the Fifth Amendment to the United States Constitution and Section 10, Article I of the 

Ohio Constitution, which prohibits multiple punishments for the same offense.’” 

Williams at ¶ 13, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 

N.E.2d 923, ¶ 23. “At the heart of R.C. 2941.25 is the judicial doctrine of merger; 

merger is ‘the penal philosophy that a major crime often includes as inherent therein the 

component elements of other crimes and that these component elements, in legal 

effect, are merged in the major crime.’” Williams at ¶ 13, quoting State v. Botta, 27 Ohio 

St.2d 196, 201, 271 N.E.2d 776 (1971). 

{¶7} R.C. 2941.25 provides: 

(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 

 

1

 In spite of the appellant’s framing the issue in terms of plain error, we do not apply that analysis because 

the trial court indicated at the sentencing hearing the crimes were allied offenses of similar import and 

mentioned only a single sentence. 
Jackson App. No. 13CA5 4

as to each, the indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 

{¶8} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy 

Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing. 

Thus, when the issue of allied offenses is before the court, the question is not whether a 

particular sentence is justified, but whether the defendant may be sentenced upon all 

the offenses.’” Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, at ¶ 

15, quoting Underwood at ¶ 27. 

{¶9} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 

1061, the Supreme Court of Ohio established a new two-step test for merger and held 

that “R.C. 2941.25(A) requires the sentencing court to first determine ‘whether it is 

possible to commit one offense and commit the other with the same conduct.’” 

(Emphasis sic.) State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 

8, quoting Johnson at ¶ 48. “If the defendant’s conduct constituting commission of one 

offense constitutes commission of the other, then the offenses are of similar import, and 

the court must then decide whether the offenses were committed with a single state of 

mind, i.e., a single animus.” Miranda at ¶ 8, citing Johnson at ¶ 48-49. “If so, the 

offenses are allied offenses of similar import that must be merged, and the defendant 

can be punished for only one.” Miranda at ¶ 8, citing Johnson at ¶ 50. 

{¶10} “Alternatively, if it is not possible to commit the offenses with the same 

conduct, or if the offenses were committed separately or with a separate animus, then 

the court may sentence the defendant for all the offenses at issue.” Miranda at ¶ 9, 

citing Johnson at ¶ 51. 
Jackson App. No. 13CA5 5

{¶11} Here, the state candidly concedes that Frazier’s convictions for 

aggravated arson in violation of R.C. 2909.02(A)(1) and (A)(2) are allied offenses of 

similar import committed with a single animus that the trial court should have merged at 

sentencing. We agree. 

{¶12} R.C. 2909.02(A) provides in relevant part: 

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 * * *. 

{¶13} As demonstrated by the facts of this case, R.C. 2909.02(A)(1) and (A)(2) 

“are clearly offenses that may be committed by the same conduct * * *.” State v. Alcala, 

6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 39. One could knowingly start a 

fire that caused physical harm to an occupied structure, while creating a substantial risk 

of serious harm to the same occupants. Thus, Frazier’s offenses are of similar import. 

See id. In addition, it is apparent from the Russells’ testimony at trial that Frazier 

committed the offenses with a single animus. 

{¶14} Sandra Russell testified that she saw Frazier “standin’ by our little fence 

for our dogs. And he said it again, ‘Come out and talk to me.” And I picked up the 

phone and called 911. * * * And while I was on the phone * * * I heard him say, ‘I’ll burn 

this house and kill you both (unintelligible).’ (Crying) Ten seconds later the end of our 

camper lit up in orange flames. He had set fire to the gas tank at the end of the 

camper.” 

{¶15} Jimmie Russell also testified that he “heard [Frazier] hollerin’ to come out 

and talk to him. So, we started to get up and he said it again. I looked out and seen 
Jackson App. No. 13CA5 6

him standin’ there, and he got a lighter in his hand lighted. [Sandra] went and called 

911, and I was putting my clothes on. Next thing I knowed the whole front of our 

camper went up in flames.” He further testified that after Frazier “said he wanted to talk 

to us twice, he said ‘I’ll burn you both up and be done with it, and kill you both.’” 

{¶16} Based on the record, it is clear Frazier ignited the camper as part of single 

act with the same animus for both crimes, i.e. to harm its occupants.2 Consequently, 

Frazier’s convictions for aggravated arson are allied offenses of similar import and the 

trial court erred by failing to merge them at sentencing. Alcala, 6th Dist. Sandusky No. 

S-11-026, 2012-Ohio-4318, at ¶ 39 (finding defendant’s convictions for aggravated 

arson in violation of R.C. 2909.02(A)(1) and (A)(2) were allied offenses of similar import 

that should have merged for sentencing where he threw single incendiary device at an 

occupied home). Compare with State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-

Ohio-921, ¶ 46-48 (finding R.C. 2909.02(A)(1) and (A)(2) were not allied offenses of 

similar import because defendant committed one offense against a person and one 

offense against an occupied structure). 

{¶17} And even though the trial court ordered Frazier to serve his sentences 

concurrently, “a defendant is prejudiced by having more convictions than are authorized 

by law.” Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 31. 

V. CONCLUSION 

{¶18} Accordingly, we sustain Frazier’s sole assignment of error, reverse his 

convictions and remand for a new sentencing hearing at which the state must elect 

which of the allied offenses it will pursue for sentencing. State v. Whitfield, 124 Ohio 

 

2

 This appeal does not address whether a person who ignites an occupied structure containing two or 

more people can be convicted and sentenced on counts for each person. 
Jackson App. No. 13CA5 7

St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25; State v. Carsey, 4th Dist. Athens Nos. 

12CA37, 12CA38, 2013-Ohio-4482, ¶ 16. 

JUDGMENT REVERSED AND 

CAUSE REMANDED. 
Jackson App. No. 13CA5 8

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS 

REMANDED. Appellee shall pay the costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Jackson 

County Court of Common Pleas 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. 

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, 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.