[Cite as State v. Washington, 2014-Ohio-1876.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 11CA010015
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DAVID T. WASHINGTON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CR078387
DECISION AND JOURNAL ENTRY
Dated: May 5, 2014
WHITMORE, Presiding Judge.
{¶1} This case is before us on remand from the Ohio Supreme Court. This Court
affirms.
I
{¶2} This Court recounted the facts underlying this matter in State v. Washington
(“Washington I”), 9th Dist. Lorain Nos. 10CA009767 & 10CA009768, 2011-Ohio-1149, and
State v. Washington (“Washington II”), 9th Dist. Lorain No. 11CA010015, 2012-Ohio-2117.
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).
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. 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. The police apprehended Washington in a ditch in the woods not far from where he left the car. 2
(Internal citations omitted.) Washington II at ¶ 11. 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
so that the trial court could consider whether his failure to comply and obstructing official
business offenses were allied offenses of similar import under the new law set forth in Johnson.
Washington I 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. Washington then appealed from
the trial court’s judgment.
{¶4} In Washington II, this Court held that the trial court erred by sentencing
Washington on both his failure to comply and obstructing official business counts, as the two
were allied offenses of similar import. Washington II at ¶ 5-18. We held that the State “relied
upon the same evidence” to prove both offenses and “in no way differentiated between the two”
at trial. Id. at ¶ 17. Specifically, at trial, the State focused solely on the car chase. Id. at ¶ 13.
At the resentencing hearing, however, the State shifted to arguing 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.” Id. at ¶ 14. We
rejected the State’s new theory and held that: 3
[a]lternative 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.
Id. at ¶ 16. Thus, we remanded the matter to the trial court for the State to elect which allied
offense it wished to pursue on resentencing. Id. at ¶ 18.
{¶5} The State appealed this Court’s decision to the Ohio Supreme Court, and the
Supreme Court accepted review. In State v. Washington (“Washington III”), 137 Ohio St.3d
427, 2013-Ohio-4982, the Supreme Court reversed this Court’s decision and held that
[w]hen deciding whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire record, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with a separate animus.
Washington III at syllabus. The Supreme Court remanded the matter to this Court for us to
consider the entire record, including the information the State presented at the resentencing
hearing. Id. at ¶ 23-24. Per the order of this Court, both Washington and the State also filed
supplemental briefs on the allied offense issue.
{¶6} The appeal is now before us on remand from the Supreme Court.
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.
{¶7} In his first assignment of error, Washington argues that the trial court erred by
sentencing him on allied offenses of similar import. We disagree.
{¶8} “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, 4
which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, ¶ 23. That 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. An appellate court applies “a de novo standard of review in reviewing a trial
court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-
5699, ¶ 28.
{¶9} Two or more offenses may result in multiple convictions if: (1) they are offenses
of dissimilar import; (2) they are separately committed; or (3) the defendant possesses a separate
animus as to each. Washington III, 137 Ohio St.3d 427, 2013-Ohio-4982, at ¶ 12. The first step
of the analysis requires a court to consider the import of the offenses (i.e., whether they are of
similar or dissimilar import). Id. at ¶ 13. The import analysis entails more than an abstract
review of the elements of the offenses involved. Id. at ¶ 16, citing Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314. In undertaking the import analysis, “the conduct of the accused must be
considered.” Washington III at ¶ 15, quoting Johnson at syllabus. See also Johnson at ¶ 48
(“[T]he question is whether it is possible to commit one offense and commit the other with the
same conduct * * *.”).
{¶10} The second step of the analysis requires a court to consider whether the offenses
at issue “were committed separately or with a separate animus.” Washington III at ¶ 13. See
also Johnson at ¶ 49 (“If the multiple offenses can be committed by the same conduct, then the 5
court must determine whether the offenses were committed by the same conduct * * *.”). In
applying the second step of the analysis, “a court must review the entire record, including
arguments and information presented at the sentencing hearing.” Washington III at ¶ 24. “If the
offenses were committed by the same conduct and with a single animus, the offenses merge.”
Id. at ¶ 13. The defendant bears the burden of establishing his entitlement to the protection,
provided by R.C. 2941.25. Id. at ¶ 18.
{¶11} R.C. 2921.331(B) provides that “[n]o 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.” Whoever commits the foregoing offense is
guilty of failure to comply with an order or signal of a police officer. R.C. 2921.331(C)(1).
{¶12} R.C. 2921.31(A) 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.” Whoever commits the
foregoing offense is guilty of obstructing official business. R.C. 2921.31(B). Obstructing
official business is a fifth-degree felony if the crime “creates a risk of physical harm to any
person.” Id.
{¶13} As previously noted, Washington’s convictions arose as a result of a high-speed
car chase that ultimately led to a foot chase after the police successfully deflated the tires of the
car Washington had stolen. In his supplemental brief, Washington argues that his conduct while
inside the car must serve as the basis for both of his offenses because, given the State’s argument
at trial, it is evident that “[t]he foot chase played no role in the jury’s determination of guilt.”
The State responds that the law of the case doctrine applies in this matter and this Court may not 6
deviate from the Supreme Court’s dictate in Washington III, regarding the State’s argument at
trial. At this point, we must pause to discuss the application of the law of the case doctrine in
this matter.
{¶14} In Washington III, the Supreme Court wrote:
At trial, the state never argued that the car chase was the basis for both the failure- to-comply and obstructing-official-business offenses. The state presented evidence of both the car chase and the foot chase, and it repeatedly referred to both chases during opening statement and closing argument. In fact, the foot chase could not have established the failure-to-comply offense, because that offense requires proof that the defendant was “operat[ing] a motor vehicle.” R.C. 2921.331(B). At best, it is unclear whether the state relied on the foot chase to support the obstructing-official-business count. It cannot be said that the state’s argument at trial was inconsistent with its argument at the resentencing hearing.
Washington III, 137 Ohio St.3d 427, 2013-Ohio-4982, at ¶ 22. There is no question that the law
of the case doctrine generally would bind this Court to accept the foregoing determination. See
Nolan v. Nolan, 11 Ohio St.3d 1 (1984), syllabus (“Absent extraordinary circumstances, * * * an
inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in
the same case.”). The doctrine, however, ceases to apply in instances where “extraordinary
circumstances” exist. Id.
{¶15} After the Supreme Court’s remand, this Court received the record in this matter
from the clerk of courts. The record this Court received contained three trial transcripts, all three
of which had stickers bearing the Supreme Court case number assigned to State v. Washington
and a receipt date of November 5, 2012. Two of the three transcripts, however, were transcripts
from a different trial. Specifically, those two transcripts were transcripts from the trial of
Douglas Rivers, Washington’s separately indicted and separately tried co-defendant. See State v.
Rivers, 9th Dist. Lorain No. 10CA009772, 2011-Ohio-2447. The only transcript from
Washington’s trial was the second volume of the transcript. This Court contacted the clerk of 7
courts and located the first and third volumes of Washington’s trial transcripts. Neither
transcript bears the Supreme Court’s sticker. Therefore, it appears the complete transcript from
Washington’s trial may not have been before the Supreme Court when it issued Washington III.
{¶16} This Court is mindful of the law of the case doctrine. Its application in this
instance, however, must be tempered, given the unique circumstances that exist. This Court, in
keeping with the law set forth in Washington III, will “review the entire record, including
arguments and information presented at the sentencing hearing, to determine whether the
offenses were committed separately or with a separate animus.” Washington III at syllabus. Yet,
in doing so, this Court will consider the record anew.
{¶17} Washington’s failure to comply and obstructing convictions could be committed
with the same conduct if both arose from the high-speed car chase on which he led the police.
See id. at ¶ 13-15 (import analysis defined). At the resentencing hearing on the allied offense
issue, it was Washington’s burden to establish that he was entitled to the protection of the allied
offense statute. The State argued that the high-speed car chase formed the basis of Washington’s
failure to comply count while the foot chase that occurred once he ran from the car formed the
basis of the obstructing official business count. Under that scenario, the two crimes could not be
committed with the same conduct. See id. Specifically, the foot chase could not serve as the
basis for the failure to comply count because that count “require[d] proof that the defendant was
‘operat[ing] a motor vehicle.’” Id. at ¶ 22, quoting R.C. 2921.331(B). Moreover, under that
scenario, the two crimes were separately committed. See Washington III at ¶ 13 (“The second
prong [of an allied offense analysis] looks to the defendant’s conduct and requires a
determination whether the offenses were committed separately * * *.”). See also Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, at ¶ 49. The conduct supporting the failure to comply count 8
ended once the police successfully deflated the tires on the stolen car and Washington was forced
to stop driving it.
{¶18} At that point, Washington could have surrendered. Instead, he chose to exit the
car and flee on foot, causing several officers to follow him into a wooded area and pull him from
his hiding place. Obstruction of official business only requires “a risk of physical harm to any
person,” so there was no need for specific testimony at trial regarding physical harm to any
person during the foot chase. (Emphasis added.) R.C. 2921.31(B). The evidence in the record
supports the conclusion that the officers who chased Washington through the woods faced at
least a risk of harm, given that, prior to the foot chase, he had knocked a woman to the ground,
stolen her car, and led the police on an extremely dangerous car chase. See State v. Woodson,
9th Dist. Wayne No. 07CA0044, 2008-Ohio-1469, ¶ 27-28.1 The foot chase Washington
initiated constituted separate conduct that could serve as the basis for his obstructing count.
Washington has not shown that the State in fact relied upon the same conduct to support both of
his charged offenses. See Washington III at ¶ 18 (defendant bears the burden of demonstrating
his entitlement to the protection provided by R.C. 2941.25). Likewise, he has not shown that the
State bound itself to a particular theory of the evidence at trial. See id. at ¶ 19 (“[T]he state’s
theory at trial may, in some cases, definitively support a finding that the offenses at issue arose
from the same conduct.”).
{¶19} During opening statement, the prosecutor stated:
[T]he felonious assault on a police officer has to do with [Washington] driving the vehicle directly at the officer in an attempt to hit him.
He then later stated:
1 Notably, Washington did not challenge the sufficiency of either his failure to comply or his obstructing official business convictions on direct appeal. 9
Assault on a police officer. Receiving stolen property and obstructing official business. Obstructing official business has to do, it’s very same similar to the assault on a police officer, both counts of that is when the defendant ran he imperiled not only the officers’ lives, and you will see as Officer 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.
(Emphasis added.) The State never connected the foot chase to the charge of obstruction in
opening statement. Nevertheless, the State referenced the foot chase in both its opening and
closing and evidence of the foot chase was presented at trial. Moreover, the State did not
connect any of the evidence to any particular charge in closing argument. Compare State v.
Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, ¶ 100. The record does not support
Washington’s argument that the State clearly articulated a theory of the case at trial that was
inconsistent with its theory at his resentencing. See Washington III at ¶ 19.
{¶20} The trial court did not err by concluding that Washington could be sentenced on
both his obstructing official business and failure to comply counts. Washington’s first
assignment of error is overruled.
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. 10
{¶21} Washington’s previous appeal before this Court also included sufficiency and
weight challenges to his conviction for obstructing official business. See Washington II, 2012-
Ohio-2117, at ¶ 19-20. This Court determined that his sufficiency and weight arguments were
barred by the doctrine of res judicata because he failed to raise them in his first direct appeal. Id.
Although the Supreme Court reversed this Court’s judgment when it issued Washington III, its
reversal pertained strictly to the allied offense issue. This Court, therefore, need not revisit
Washington’s sufficiency and manifest weight assignments of error. We adhere to our prior
determination with regard to those assignments of error.
III
{¶22} Washington’s first assignment of error is overruled. This Court adheres to its
previous judgment with regard to his remaining assignments of error. The judgment of the
Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
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 11
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 to Appellant.
BETH WHITMORE FOR THE COURT
BELFANCE, J. CONCURS.
CARR, J. CONCURRING IN JUDGMENT ONLY.
{¶23} I concur in the majority’s opinion that the trial court did not err in sentencing
Washington on both obstructing official business and failure to comply. I write separately,
however, to emphasize that the Ohio Supreme Court recognized that the State’s theory of its case
at trial is not binding or relevant to the issue of merger at sentencing. The high court clarified
that, notwithstanding divided opinions within State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, no justice subscribed to the belief that the sentencing court must limit its determination
regarding merger to the State’s theory of its case at trial. State v. Washington, 137 Ohio St.3d
427, 2013-Ohio-4982, ¶ 17. In fact, after emphasizing that the burden of demonstrating that he is
entitled to the statutory protection against multiple punishments for a single criminal act rests
with the defendant, the Washington court implicitly concluded that the State cannot be bound by
its theory during trial for purposes of sentencing. Id. at ¶ 18-21 (recognizing the inequity in
binding the State as “[i]t would be equally unfair to bind a defendant to the theories presented at
trial without allowing the defendant to present merger arguments at sentencing.”). The high 12
court acknowledges that the State’s theory at trial may indeed coincide with its arguments
regarding merger at sentencing. Id. at ¶ 19. I agree. On the other hand, it may not. In any
event, the State is not constrained at sentencing by its theory at trial.
{¶24} Accordingly, it is irrelevant that, as the majority notes in paragraph 18,
Washington “has not shown that the State bound itself to a particular theory of the evidence at
trial.” Washington, 2013-Ohio-4982, clarifies that the defendant can never make such a
showing. Thus, while I concur in the majority’s resolution of the first assignment of error, I
believe that any discussion of the State’s theory of its case at trial is not relevant to the
determination of whether offenses merge for purposes of sentencing.
APPEARANCES:
PAUL A. GRIFFIN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.