State v. Alsup, 957 N.E.2d 864

Alsup, a homeless man, struck Floyd Drummond in the head with a rock multiple times, killing him; Larry Hudson, Jr. observed the act and later saw Alsup throw the rock into a river.
Alsup was charged with two counts of Murder (purposeful and felony murder), two counts of Felonious Assault (deadly weapon and serious physical harm), and one count of Tampering with Evidence.
After a jury trial, Alsup was found guilty on all counts; the State elected to merge the purposeful Murder into felony Murder and the serious-physical-harm Felonious Assault into the deadly-weapon Felonious Assault.
Alsup was sentenced to 15 years to life for Murder, 6 years for Felonious Assault, and 3 years for Tampering with Evidence, all to be served consecutively (total 24 years to life).
Alsup appeals, challenging the merger of concurrent offenses and the convictions for Murder and Felonious Assault as allied offenses of similar import.
The appellate court, following remand and after State v. Johnson, sustains Alsup’s sole assignment of error and reverses the judgment to require the State to elect merge and for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Murder and Felonious Assault may be convicted and sentenced separately when the acts constitute allied offenses.	Alsup argues the two convictions are allied offenses of similar import and must be merged.	Alsup contends the acts were not two separate offenses with distinct animus and thus should merge.	Yes; the convictions must be merged (no multiple conviction for allied offenses).

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (overruled abstract elements test; focuses on defendant’s conduct and allied-offense analysis)
State v. Rance, 85 Ohio St.3d 632 (1999-Ohio-632) (abstraction-based elements test overruled; allied offenses require unitary conduct analysis)