In Deciding Whether Convictions Should be Merged as 'Allied Offenses,' Is Court Limited to Theory of Crime Argued to Jury?

State of Ohio v. David T. Washington, Case no. 2012-1070

Ninth District Court of Appeals (Lorain County)

ISSUE: In a case where a criminal defendant has been found guilty by a jury of two different crimes arising from the same conduct, in determining whether those crimes should be merged into a single conviction for sentencing as "allied offenses of similar import," must the trial court base its analysis on the theory of the crimes that was presented to the jury at trial, or may the court consider an alternative theory advanced by the state at the time of sentencing?"