State v. Sullivan, 2012 Ohio 4317

Sullivan, living with the victim’s mother, engaged the 14–15 year old victim in a sexualized scheme via an online contact purportedly with a Tokio Hotel member; the victim sent nude photos and Sullivan photographed her and arranged to have or transmit images.
A five-count indictment charged pandering obscenity (Count 1), pandering sexually oriented matter (Count 2), endangering a child (Count 3), and two counts of illegal use of a minor in nudity-oriented material (Counts 4 and 5).
The State’s theory: Counts 3–5 were based on a single photoshoot/session; Count 1 involved explicit sexual contact in a separate photo; Count 2 involved a video of the victim masturbating.
Sullivan moved for merger under R.C. 2941.25; the court analyzed whether Counts 3–5 (and with Count 1) were allied offenses of similar import and whether they should merge for sentencing.
The appellate court ultimately affirmed the trial court, holding no merger was required for Counts 1, 3, 4, and 5, and rejected ineffective-assistance claims related to merger.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Counts 3–5 are allied offenses or must merge.	Sullivan argues Counts 3–5 were taken from the same encounter and share animus.	Sullivan contends the acts were the same conduct with a single animus and should merge.	Counts 3–5 not merged; separate acts with distinct animus supported.
Whether Count 1 should merge with Counts 3–5.	Sullivan contends Count 1 and Counts 3–5 arose from the same conduct and should merge.	Sullivan argues the evidentiary and sexual context shows allied offenses.	Count 1 not merged with Counts 3–5.
Whether appellate counsel was ineffective for failing to raise merger arguments.	Sullivan claims ineffective assistance due to failure to challenge merger.	State contends no meritorious merger argument was available.	No ineffective assistance; merger arguments without merit.
General merger framework or governing standard applied by court.	Precedent required broader merger review.	Proper application of Johnson and related case law supports non-merger.	Court applied Johnson framework; no merger required.

State v. Johnson, 128 Ohio St.3d 153 (Ohio Supreme Court 2010) (defining allied offenses and the need to assess conduct before sentencing)
State v. Blanchard, 2009-Ohio-1357 (Ohio 8th Dist. 2009) (separate acts, even if quickly successive, may constitute separate offenses)
State v. Hines, 2010-Ohio-2118 (Ohio 8th Dist. 2009) (separate acts with varying poses/contexts may prevent merger)
State v. Stoffer, 2011-Ohio-5133 (Ohio 7th Dist. 2011) (photographs with different times/contexts may be separate offenses)
State v. Hale, 2012-Ohio-2662 (Ohio 2d Dist. 2012) (burden on defendant to show allied offenses)