[Cite as State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268.] 

THE STATE OF OHIO, APPELLANT, v. DAMRON, APPELLEE. 

[Cite as State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268.] 

Criminal law — Allied offenses — Correction of sentencing errors. 

(No. 2010-0937 — Submitted March 22, 2011 — Decided May 18, 2011.) 

APPEAL from the Court of Appeals for Franklin County, No. 09AP-807, 

2010-Ohio-1821. 

__________________ 

 O’CONNOR, C.J. 

{¶ 1} Because the judgment entry of the sentencing court shows that the 

court applied erroneous legal reasoning, we remand this case to the trial court for 

resentencing, as required by State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 

922 N.E.2d 182, and application of our recent decision, State v. Johnson, 128 

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. 

Factual Background 

{¶ 2} On June 27, 2008, a grand jury returned an indictment against 

Jeremy Damron that charged one count of felonious assault, two counts of 

domestic violence, and one count of rape. The state alleged that Damron 

committed the offenses on or about June 21, 2008, against the mother of two of 

his children. 

{¶ 3} On May 5, 2009, Damron entered a guilty plea to felonious assault 

and to one count of domestic violence. In exchange, the state requested that the 

trial court enter a nolle prosequi to the remaining two counts. During the plea 

hearing, Damron was informed of the applicable statutory maximum penalties: 

eight years’ imprisonment for felonious assault and five years’ imprisonment for 

domestic violence. 

{¶ 4} Before the sentencing hearing, each party submitted a sentencing 

memorandum. In its sentencing memorandum, the state cited State v. Rance
SUPREME COURT OF OHIO

2 

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which has since been overruled by 

Johnson, and argued for the imposition of consecutive sentences. In so doing, the 

state argued that the elements of the two offenses do not correspond to such a 

degree that the commission of one offense would necessarily result in the 

commission of the other offense. It further argued that Damron committed the 

offenses with a separate animus. It argued that in one incident, Damron beat the 

victim with his fists and dragged her around the room and, in another incident, 

broke off the blades of the ceiling fan and beat the victim with the blades. The 

state further argued that the beating with the fan blades also represented an 

escalation in the violence that contributed to the serious physical harm suffered by 

the victim. 

{¶ 5} In his sentencing memorandum, Damron cited State v. Harris, 122 

Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, which relied on Rance, and 

argued that the offenses must be merged as allied offenses. Damron conceded 

that the elements of the offenses are not the same but argued that the offenses are 

allied because he could not have committed felonious assault on this particular 

victim (who was a family or household member) without also committing 

domestic violence. He further argued, without elaborating, that the offenses were 

committed with one animus against one victim. 

{¶ 6} On July 27, 2009, the trial court held a sentencing hearing. At the 

hearing, the state addressed Damron’s sentencing memorandum and urged the 

court to hold that as a matter of law, felonious assault and domestic violence are 

not allied offenses. In so arguing, the state pointed out that felonious assault as 

charged requires proof of serious physical harm but domestic violence does not, 

that domestic violence requires that the victim be a household or family member 

but felonious assault does not, and that domestic violence as charged requires 

proof of two prior domestic-violence convictions but felonious assault does not. 
January Term, 2011 

3 

The state did not argue the animus issue at the hearing, as it did in its 

memorandum. 

{¶ 7} At the hearing, Damron reiterated his position that under Harris, 

the offenses must merge. Specifically, he argued that his commission of felonious 

assault necessarily resulted in his commission of domestic violence. He further 

argued that the attack involved “one date, one place,” as well as “one animus, one 

victim.” 

{¶ 8} After informing Damron that this was the worst instance of 

domestic violence and felonious assault he had ever seen, the sentencing judge 

imposed the statutory maximum sentences of eight years’ imprisonment for 

felonious assault and five years’ imprisonment for domestic violence. The judge 

then explained that pursuant to Harris, the counts “need[ed]” to merge. He 

further stated, “I feel I have no alternative but to run them concurrent. That’s 

pursuant to the State v. Harris,” and “I would have found, if I did not think that 

Harris dictated that, that those would run consecutive to each other.” 

{¶ 9} The judgment entry in this case reflected that Damron was found 

guilty on both charges and sentenced to eight years and five years to be served 

concurrently, “pursuant to State v. Harris.” 

{¶ 10} The state appealed to the Tenth District and asserted one 

assignment of error: “The trial court erred by purporting to merge the defendant’s 

convictions for felonious assault and domestic violence.” The Tenth District 

refused to reach the issue because, although the trial court had concluded that it 

was required to merge the convictions, it did not do so. 2010-Ohio-1821 at ¶ 10. 

The court of appeals overruled the state’s assignment of error. It noted that rather 

than merge the convictions, the trial court imposed separate sentences on each 

count but ordered the sentences to be served concurrently. Id. The court of 

appeals further noted, “Even if we were to conclude that the court’s decision to 

impose concurrent sentences had been based on faulty reasoning, the fact remains 
SUPREME COURT OF OHIO

4 

that the court’s order that the sentences be served concurrently resulted in a 

sentence authorized by the statutes governing sentencing.” Id. at ¶ 11. 

{¶ 11} We granted discretionary review over the state’s appeal to address 

two propositions of law: (1) “Even when the sentence falls within the permitted 

statutory range, the sentence is contrary to law if the court fails to consider the 

mandatory provisions in R.C. Chapter 2929, or if the court relies on an erroneous 

legal determination that removes a sentencing option from its consideration”; and 

(2) “When a court imposes concurrent prison terms under the mistaken belief that 

it is merging two allied offenses of similar import, sentencing error occurs, and 

that error can be corrected on appeal.” This court declined to review a third 

proposition of law on the substantive issue of whether felonious assault and 

domestic violence are allied offenses. State v. Damron, 126 Ohio St.3d 1544, 

2010-Ohio-3855, 932 N.E.2d 338.

{¶ 12} Because the sentencing entry itself reflects the court’s error in 

reasoning, the sentences must be vacated and this case remanded to the trial court 

for resentencing. 

Analysis 

{¶ 13} By imposing the sentences concurrently “pursuant to State v.

Harris,” the judgment entry reflected the sentencing judge’s misapprehension of 

the law on allied offenses. “Where the same conduct by [the] defendant can be 

construed to constitute two or more allied offenses of similar import, the 

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

defendant may be convicted of only one.” R.C. 2941.25(A). 

{¶ 14} In its judgment entry, the trial court relied on Harris, presuming 

that the case necessarily required merger of the felonious-assault and domesticviolence counts. In Harris, we addressed two issues: first, whether robbery under 

R.C. 2911.02(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) are allied 

offenses of similar import; and, second, whether felonious assault under R.C. 
January Term, 2011 

5 

2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2) are allied offenses 

of similar import. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, 

at paragraphs one and two of the syllabus. We held that robbery and aggravated 

robbery are allied offenses and that felonious assault under (A)(1) and felonious 

assault under (A)(2) are allied offenses when those offenses are committed with 

the same animus against the same victim. Id. 

{¶ 15} In so holding, we surveyed the allied-offenses case law. Id. at ¶ 7-

14. We recognized that historically, we had interpreted Ohio’s multiple-count 

statute, R.C. 2941.25, as involving a two-step analysis. Id. at ¶ 10, quoting State 

v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. “ ‘In the first 

step, the elements of the two crimes are compared. * * * In the second step, the 

defendant’s conduct is reviewed * * *.’ ” Id. We then acknowledged that in 

Rance, we modified the test by holding that courts should examine the elements in 

the abstract to determine whether the offenses are allied offenses. Id. at ¶ 11. 

{¶ 16} We next explained that at one time, our holding in Rance was 

interpreted by some courts as requiring a strict textual comparison of the 

elements. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at ¶ 12. 

We noted that that interpretation conflicted with legislative intent and caused 

inconsistent and, at times, absurd results. Id. Accordingly, we had refined the 

allied-offenses test in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 

N.E.2d 181, and held that “ ‘in determining whether offenses are allied offenses 

of similar import under R.C. 2941.25(A), Rance requires courts to compare the 

elements of offenses in the abstract, i.e., without considering the evidence in the 

case, but does not require an exact alignment of elements.’ ” Harris at ¶ 12, 

quoting Cabrales at ¶ 27. 

{¶ 17} In Damron’s case, the sentencing court relied on Harris, which 

relied on Rance. Harris at ¶ 14. Even so, Harris never stood for the proposition 

that the offenses of felonious assault and domestic violence must merge as a 
SUPREME COURT OF OHIO

6 

matter of law. In addition, in the sentencing entry, the trial court failed to 

properly merge the convictions. When a defendant has been found guilty of 

offenses that are allied offenses, R.C. 2941.25 prohibits the imposition of multiple 

sentences. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 12. 

Therefore, a trial court must merge the crimes into a single conviction and impose 

a sentence that is appropriate for the offense chosen for sentencing. State v. 

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 41-43. In this 

case, the sentencing court found Damron guilty of both offenses and sentenced 

him on both. The imposition of concurrent sentences is not the equivalent of 

merging allied offenses. As we explained in Whitfield, for purposes of R.C. 

2941.25, a “conviction” is the combination of a guilt determination and a sentence 

or penalty. Whitfield at ¶ 12. As the record stands, Damron has been convicted of 

both felonious assault and domestic violence. 

Conclusion 

{¶ 18} In this case, the trial court issued a sentencing entry that 

erroneously relied upon Harris. Because of this and other significant procedural 

defects unique to this case, we vacate the sentence and remand for proper 

sentencing, including application of State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061, syllabus. 

Judgment vacated 

and cause remanded. 

 PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

__________________ 

 Ron O’Brien, Franklin County Prosecuting Attorney, and John H. Cousins 

IV, Assistant Prosecuting Attorney, for appellant. 

Keith O’Korn, for appellee. 

______________________