State v. Ballard
2013 Ohio 373
Ohio Ct. App.2013Background
- Ballard was indicted for breaking and entering, petty theft, vandalism, and possession of criminal tools.
- Ballard moved to suppress statements made to police; suppression hearing held.
- Officer Cicero testified about Nov. 8, 2011, when Ballard was seen at a vacant school with radiator pieces.
- During arrest, Ballard was found with a flashlight, a wrench, and copper wiring.
- Trial court sentenced Ballard to eight months on B&E, vandalism, and tools counts and six months on petty theft, all concurrent.
- Court considers whether offenses are allied offenses under R.C. 2941.25 using Johnson's two-part framework and related case law, and reverses for allied offenses hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the offenses are allied offenses of similar import requiring merger | Ballard argues the counts arose from a single act and should merge | Ballard contends the offenses were not merged due to separate elements/animus | Partial reversal; error to not merge all applicable counts; remand for allied-offenses hearing |
| Whether counsel was ineffective for failing to object to non-merger | Ballard asserts counsel should have pursued merger | Counsel argued for merger; court rejected ineffectiveness claim | Overruled; no ineffective-assistance finding |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (establishes Johnson two-part test for allied offenses under R.C. 2941.25)
- State v. Sludder, 2012-Ohio-4014 (3d Dist.) (holds offenses not allied when one cannot be committed with the other by same conduct)
- State v. Turner, 2011-Ohio-6714 (2d Dist.) (discusses separateness of acts for allied-offenses analysis)
- State v. Simmonds, 2012-Ohio-1479 (12th Dist.) (supports merger where tools used during theft during same conduct)