¶1concurring in judgment.
¶2{¶ 59} I agree with the majority that the analysis set forth in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, for determining whether two or more offenses are allied offenses of similar import pursuant to R.C. 2941.25 has proven difficult to apply. I write separately because I do not believe that the majority opinion clearly sets forth the appropriate considerations for determining whether offenses arise out of the same conduct and should be merged pursuant to R.C. 2941.25.
¶3{¶ 60} R.C. 2941.25 provides:
{¶ 61} “(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.
{¶ 62} “(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.”
¶4{¶ 63} Much of the confusion is caused by the statutory terminology “allied offenses of similar import.” Thus, our analysis must begin with an understanding of this term.
¶5{¶ 64} In practice, allied offenses of similar import are simply multiple offenses that arise out of the same criminal conduct and are similar but not identical in the significance of the criminal wrongs committed and the resulting harm. R.C. 2941.25 permits a defendant to be charged with, and tried for, multiple offenses based on the same conduct but permits only one conviction based on conduct that results in similar criminal wrongs that have similar consequences.
¶6{¶ 65} Our decisions have described the two features of allied offenses of similar import together, see, e.g., State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 30 (offenses are allied offenses of similar import if commission of the first offense necessarily results in commission of the second). But it may aid understanding to address the statutory terms “allied offenses” and “of similar import” as separate components of the standard in R.C. 2941.25(A).
¶7*166{¶ 66} Under the later formulations of State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, and State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, offenses are “allied” when their elements align to such a degree that commission of one offense would probably result in the commission of the other offense.
¶8{¶ 67} Offenses are of “similar import” when the underlying conduct involves similar criminal wrongs and similar resulting harm.
¶9{¶ 68} The question becomes how to determine whether offenses that stem from the same conduct result in offenses of “similar import” within the meaning of R.C. 2941.25. The significant amount of litigation regarding this question since Ranee was decided strongly suggests that instead of examining the elements of the offense solely in the abstract, the analysis under R.C. 2941.25(A) should also examine the defendant’s conduct in the context of determining whether the offenses are of similar import. Ranee, inasmuch as it requires a comparison of the elements of the offenses solely in the abstract, should be overruled. A defendant may be indicted for multiple offenses that arise out of the same conduct, R.C. 2941.25(A), and the trier of fact may find the defendant guilty of multiple offenses that arise out of the same conduct without running afoul of R.C. 2941.25. The trial court does not consider a defendant’s merger argument until the state has proven all of the elements of each offense beyond a reasonable doubt. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 18, citing Ohio v. Johnson (1984), 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425, and quoting State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135 (“In cases in which the imposition of multiple punishments is at issue, R.C. 2941.25(A)’s mandate that a defendant may be ‘convicted’ of only one allied offense is a protection against multiple sentences rather than multiple convictions. … Thus, to ensure that there are not improper cumulative punishments for allied offenses, courts must be cognizant that R.C. 2941.25(A) requires that ‘the trial court effects the merger at sentencing’ ”).
¶10{¶ 69} Because the trial court does not consider a defendant’s merger argument until after the trier of fact has determined that the defendant is guilty of multiple offenses, the trial court’s consideration of whether there should be merger is aided by a review of the evidence introduced at trial.
¶11{¶ 70} At trial in this case, the state relied on the same evidence to establish that Johnson’s conduct — severely beating Milton and causing his death — violated both the child-endangering statute (R.C. 2919.22(B)(1)) and the felony-murder statute (R.C. 2903.02(B)). Although there may have been alternative theories that the state considered in pursuing Johnson for endangering and ultimately killing Milton, we are constrained by the record before us and the legal arguments raised in the briefs. Based on that record and those arguments, I am *167compelled to conclude that the convictions in this case arose from the same conduct that involves similar criminal wrongs and similar resulting harm and, accordingly, are allied offenses of similar import that must merge for the purpose of sentencing pursuant to R.C. 2941.25(A).
¶12{¶ 71} Accordingly, I concur in the judgment of the majority to reverse and remand for further consideration.
¶13concurring separately.
¶14{¶ 72} In this case, the court is presented with the opportunity to reconsider our allied-offenses jurisprudence. I concur in the determination that this court’s decision in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, should be overruled and agree with the majority that the court’s current test of comparing the elements of offenses in the abstract when determining whether two or more offenses are allied offenses of similar import has proven unworkable.
¶15{¶ 73} In accordance with the express language of R.C. 2941.25, the conduct of a defendant should be considered in determining whether two or more offenses constitute allied offenses of similar import.
¶16{¶ 74} R.C. 2941.25 provides:
{¶ 75} “(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.
{¶ 76} “(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.”
¶17{¶ 77} In State v. Rance, the court articulated a new test for determining pursuant to R.C. 2941.25 whether two or more offenses are allied offenses of similar import, which instructed courts to compare the statutory elements of the offenses in the abstract, and modified our former analysis in Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83, 549 N.E.2d 520, in which we compared the elements of the offense by reference to the particular facts alleged in the indictment (“Given the facts of this case, we find that [the two crimes charged are allied offenses of similar import]”).
¶18{¶ 78} Focusing on the elements of an offense in the abstract, without considering the defendant’s conduct, has proven to be unworkable and has *168resulted in widespread confusion in the legal community among practitioners and members of the judiciary, spawning litigation to resolve this issue. That test fails to comport with the express statutory language of R.C. 2941.25(A), which directs courts to consider whether “the same conduct by defendant can be construed to constitute two or more allied offenses of similar import” (emphasis added), and R.C. 2941.25(B), which directs courts to consider whether the defendant’s conduct constitutes two or more offense of dissimilar import or whether his conduct results in two or more offenses of the same or similar kind, committed separately or with separate animus. Thus, the proper inquiry is not whether the elements align in the abstract as stated in Ranee but, rather, whether the defendant’s conduct, i.e., the actions and behavior of the defendant, results in the commission of two or more offenses of similar or dissimilar import or two or more offenses of the same or similar kind committed separately or with a separate animus as to each. See Black’s Law Dictionary (9th Ed.2009) 336 (“conduct” defined as “[pjersonal behavior, whether by action or inaction”).
¶19{¶ 79} Consider the crimes of rape and kidnapping, for example. The elements of the two crimes are different. Rape, as defined in R.C. 2907.02(A)(2), is committed when a defendant engages in sexual conduct with another and the defendant purposefully compels the other person to submit by force or threat of force. Kidnapping, as defined in R.C. 2905.01(A)(4), is committed when by force, threat, or deception, or, in the case of a victim under the age of 13 or mentally incompetent, by any means, a defendant removes another from the place where the other person is found or restrains the liberty of the other with the purpose to engage in sexual activity with the victim against the victim’s will.
¶20{¶ 80} Inevitably, every rapist necessarily kidnaps the victim, because the conduct of engaging in sexual conduct by force results in a restraint of the victim’s liberty. Thus, in those circumstances, the conduct of the defendant can be construed to constitute two offenses — rape and kidnapping — and an indictment may contain counts for each, but the defendant may be convicted of only one.
¶21{¶ 81} In a different factual situation, however, if the state presented evidence that a defendant lured a victim to his home by deception, for example, and then raped that victim, an indictment may contain separate counts for the rape and for the kidnapping. In this hypothetical, different conduct — the luring of the victim by deception and the separate act of rape — results in two offenses being committed separately; therefore, the indictments may contain counts for both offenses and the defendant may be convicted of both.
¶22{¶ 82} Thus, the one-size-fits-all Ranee test directing an abstract comparison of elements failed to consider factual differences in the manner of commission of the offenses because it never factored the conduct of the actor and never allowed two offenses to be allied in some cases but not allied in other cases.
¶23{¶ 83} For the reasons stated, I concur in the decision to reverse and remand this matter for further consideration, and I concur in the syllabus.
¶24. Of course, it would be possible to indict on two counts of kidnapping, one for luring the victim and one for the rape itself.
¶25. When the court decided State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 89, which involved whether kidnapping and rape were allied offenses of similar import, the court concluded that the offenses were committed with the same animus and thus should have merged, but the opinion never cited Ranee. Appellate courts have since noted the absence of Ranee and the difficulty of its application. See In re Rashid, 163 Ohio App.3d 515, 2005-Ohio-4851, 839 N.E.2d 411, ¶ 24-25 (declining to apply Ranee after State v. Adams and noting, at ¶ 33, that “[u]nder the Ranee analysis, [the defendant] could never successfully claim, regardless of the facts of his case, that kidnapping and rape are allied offenses of similar import”); State v. Greathouse, 2d Dist. No. 21536, 2007-Ohio-2136, 2007 WL 1297181, ¶ 38 (after State v. Adams, “Mounts have questioned whether Ranee is still the correct method for deciding if crimes are allied offenses”).