[Cite as State v. Smith, 2013-Ohio-2650.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

 : 

-vs- : 

 : 

RALPH L. SMITH : Case No. 13-CA-9 

 : 

 : 

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County 

Court of Common Pleas, Case No. 

12CR00450 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: June 21, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JUSTIN RADIC STEPHEN T. WOLFE 

Assistant Prosecuting Attorney Christopher M. Cooper Co., LPA 

20 S. Second Street 3055 Cleveland Avenue 

Newark, Ohio 43055 Columbus, OH 43224 
Licking County, Case No. 13-CA-9 2 

Baldwin, J.

{¶1} Appellant Ralph L. Smith appeals a judgment of the Licking County 

Common Pleas Court convicting him of breaking and entering (R.C. 2911.13 (A)) and 

vandalism (R.C. 2909.05 (B)(1)(a)) upon a plea of guilty, and sentencing him to three 

years community control, with a sentence of ten months incarceration on each count to 

be served consecutively if he violates the terms of community control. 

STATEMENT OF FACTS AND CASE

{¶2} On August 20, 2012, appellant broke into the Faith United Methodist 

Church, looking for money to steal. Appellant damaged several pieces of property in 

the church, including a large door. 

{¶3} Appellant was indicted by the Licking County Grand Jury on August 31, 

2012, with one count of breaking and entering and one count of vandalism. Appellant 

appeared before the Licking County Common Pleas Court on January 25, 2013, and 

pled guilty to both charges. Appellant argued that the offenses should merge for 

purposes of sentencing. The court rejected his argument and sentenced him to three 

years community control, ordered him to pay $1,000.00 in restitution, and in the event 

appellant violates the terms of his community control he is to serve ten months 

incarceration consecutively on each count. 

{¶4} Appellant assigns a single error on appeal: 

{¶5} THE CHARGES WERE ALLIED OFFENSES OF SIMILAR IMPORT THAT 

SHOULD HAVE MERGED FOR PURPOSES OF SENTENCING. 

{¶6} R.C. 2941.25 provides: 
Licking County, Case No. 13-CA-9 3 

{¶7} “(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. 

{¶8} “(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.” 

{¶9} In State v. Johnson, the Ohio Supreme Court modified the test for 

determining whether offenses are allied offenses of similar import. 128 Ohio St.3d 

1405, 2010–Ohio–6314. The Court directed us to look at the elements of the offenses 

in question and determine whether or not it is possible to commit one offense and 

commit the other with the same conduct. If the answer to such question is in the 

affirmative, the court must then determine whether or not the offenses were committed 

by the same conduct. If the answer to the above two questions is yes, then the 

offenses are allied offenses of similar import and will be merged. If, however, the court 

determines that commission of one offense will never result in the commission of the 

other, or if there is a separate animus for each offense, then the offenses will not 

merge according to Johnson, supra. 

{¶10} In the instant case, appellant pled guilty to the charges. As a result, the 

record is mostly devoid of facts underlying the offenses. During the change of plea 

hearing, the prosecutor presented the facts as follows: 
Licking County, Case No. 13-CA-9 4 

{¶11} “On August 20th, 2012, the Defendant broke into the Faith United 

Methodist Church, located at 261 East Main Street, in Licking County, Ohio. The 

purpose of breaking in was to find money to steal. 

{¶12} “During this break-in, the Defendant damaged several pieces of property, 

including one large door. The total value to fix the damages was $4,325. This property 

was used by Faith United Methodist Church in their profession, business, trade or 

occupation.” Tr. 10. 

{¶13} Without presenting a specific argument concerning the facts, appellant 

argued that the offense should merge: 

{¶14} “Given that these crimes occurred at the same time, same course of 

conduct, I would submit to the Court that they were allied offenses of similar import and 

should merge upon sentencing.” Tr. 15. 

{¶15} The State responded: 

{¶16} “Your Honor, the State would submit that these are not allied offenses of 

similar import. The breaking and entering is a theft-related offense, broke in, that’s 

committed at the time he entered with purpose. When he’s in there and he’s committing 

additional offenses that aren’t related necessarily to the theft, I don’t believe they 

merge.” Tr. 17. 

{¶17} Appellant argues that the only property that was damaged, giving rise to 

the vandalism charge, was the door appellant damaged breaking into the church. The 

State argues that the damage giving rise to the vandalism charged occurred after 

appellant was inside the church building. The record does not clearly demonstrate either 

version of the facts. 
Licking County, Case No. 13-CA-9 5 

{¶18} In State v. Rogers, 8th Dist. Nos. Nos. 98292, 98584, 98585, 98586, 

98587, 98588, 98589, 98590, 2013-Ohio-1027, ¶9, the Eighth District Court of Appeals 

held: 

{¶19} “By their very nature, guilty plea proceedings are necessarily devoid of 

facts to prove the underlying offenses. If a defendant who pleads guilty wishes to make 

an allied offenses argument at sentencing, that defendant has the responsibility in the 

first instance to ensure that the record contains facts to support that argument. If the 

defendant fails to do so, any argument on appeal is waived.” 

{¶20} We agree with the reasoning of the Eighth District. In the instant case, 

appellant made an allied offense argument at sentencing, but did not place facts in the 

record to support his argument. Accordingly, the assignment of error is overruled. 

{¶21} The judgment of the Licking County Common Pleas Court is affirmed. 

By: Baldwin, J. 

Gwin, P. J. and 

Farmer, J. concur. 

 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER 

CRB/rad
[Cite as State v. Smith, 2013-Ohio-2650.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff -Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RALPH L. SMITH : 

 : 

 Defendant - Appellant : CASE NO. 13-CA-9 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs 

assessed to the appellant. 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER