Court Overrules Prior Decisions Requiring Abstract Comparison of Crime Elements
State v. Johnson, Slip Opinion No. 2010-Ohio-6314.
Hamilton App. Nos. C-080156 and C-080158, 2009-Ohio-2568. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer and Lundberg Stratton, JJ., concur.
O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur in the syllabus and judgment.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6314.pdf
(Dec. 29, 2010) In a decision overruling its 1999 holding in State v. Rance, the Supreme Court of Ohio held today that when determining whether two criminal offenses arising out the same conduct are “allied offenses of similar import” that must be merged for sentencing, the state’s trial courts must consider the conduct of the accused in each case, and not merely compare the elements of the two crimes in the abstract.
Applying that holding, the Court ruled that under the facts of a Hamilton County case, separate convictions imposed against Fred Johnson of Cincinnati for child endangering and felony murder predicated on child endangering were allied offenses that should have been merged into a single conviction subject to a single sentence.
The Court’s lead opinion, written by Chief Justice Eric Brown, reversed a decision of the 1st District Court of Appeals.
Under Ohio’s “allied offenses” statute, R.C. 2941.25, and prior court decisions interpreting that statute, when a defendant is charged with two different crimes arising from the same conduct and is found guilty on both counts, the court must determine whether the crimes are “allied offenses of similar import.” If the crimes are found to be “allied offenses,” the court must merge them into a single conviction and impose a single sentence.
In this case, Fred Johnson of Cincinnati was charged with the beating death of seven-year-old Milton Baker. Among multiple counts in his indictment, Johnson was charged with child endangering under R.C. 2919.22(B)(1) and felony murder during the commission of child endangering under R.C. 2903.02(B).
The trial court found Johnson guilty of both offenses, and imposed a separate sentence for each count. Johnson appealed, arguing that child endangering and felony murder premised on child endangering are allied offenses under R.C. 2941.25 and therefore should have been merged for sentencing. The 1st District Court of Appeals affirmed the judgment of the trial court, holding that the two offenses at issue in Johnson’s case are not allied offenses subject to merger. The 1st District subsequently certified that its ruling on was in conflict with a decision of the 5th District Court of Appeals, State v. Mills (2009), holding that the same two crimes addressed in Johnson’s case are allied offenses subject to merger. The Supreme Court agreed to review the case in order to resolve the conflict between appellate districts.
In today’s lead opinion, Chief Justice Brown wrote “In 1972, the General Assembly enacted R.C. 2941.25, in order to guide courts in the determination of offenses subject to merger. … R.C. 2941.25 provides: ‘(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. (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.’”
In State v. Logan (1979), Chief Justice Brown noted, the Court set forth what he characterized as a “cohesive standard” for trial courts to apply in determining whether multiple crimes are subject to merger as allied offenses. Quoting Logan, he wrote: “In interpreting R.C. 2941.25(A), we held: ‘[I]n order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other. In addition … the defendant, in order to obtain the protection of R.C. 2941.25(A), must show that the prosecution has relied upon the same conduct to support both offenses charged.’”
“Several years later, we summarized the then-familiar Logan two-step approach to R.C. 2941.25 in State v. Blankenship (1988), … ‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant may be convicted of both offenses.’”
In State v. Rance (1999), Chief Justice Brown said the Court tried to clear up confusion about whether, in comparing the elements of two crimes, trial courts “‘should contrast the statutory elements in the abstract or consider the particular facts of the case.’ We determined that we should ‘settle this issue for Ohio courts, and we believe[d] that comparison of the statutory elements in the abstract is the more functional test, producing “clear legal lines capable of application in particular cases.”’”
Looking back at a line of decisions in which the Court has attempted to apply the Rance “abstract comparison of the elements” test over the past 11 years, the Chief Justice cited multiple cases in which that standard has had to be modified, reinterpreted and limited by exceptions in order to avoid absurd results.
As a recent example, he cited the Court’s 2008 decision in State v. Brown. In Brown, he wrote, “the defendant stabbed her boyfriend once in the abdomen. She was convicted of two forms of felonious assault, one for a use of deadly weapon and one for causing serious bodily harm. Deadly-weapon felonious assault requires the use of a deadly weapon, but not serious bodily harm, whereas the serious-physical-harm felonious-assault offense requires serious physical harm, but no deadly weapon. … Thus, under the Cabrales/Rance analysis, Brown’s convictions would stand because, in the abstract, the commission of one of type of felonious assault would not necessarily result in the commission of the other. The absurdity is patent: Brown could have been convicted for two felonious assaults for the same, single stabbing under the Cabrales/Rance standard.”
As a result of the Court’s need to repeatedly reinterpret and create exceptions to the Rance “abstract comparison of the elements” test, the Chief Justice wrote, “(t)he current allied-offenses standard is so subjective and divorced from the language of R.C. 2941.25 that it provides virtually no guidance to trial courts and requires constant ad hoc review by this court. It is time to return our focus to the plain language and purposes of the merger statute.”
“R.C. 2941.25 itself instructs us to look at the defendant’s conduct when evaluating whether his offenses are allied. … We have consistently recognized that the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is, multiple findings of guilt and corresponding punishments heaped on a defendant for closely related offenses arising from the same occurrence. … This is a broad purpose and ought not to be watered down with artificial and academic equivocation regarding the similarities of the crimes. … Given the purpose and language of R.C. 2941.25, and based on the ongoing problems created by Rance, we hereby overrule Rance to the extent that it calls for a comparison of statutory elements solely in the abstract under R.C. 2941.25. When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.”
As guidance to trial courts in future cases where merger of multiple counts for sentencing is at issue, the Chief Justice wrote: “Under R.C. 2941.25, the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. … If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’”
“If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.”
Applying that standard to the facts of Johnson’s case, Justice Brown wrote: “In this case the crimes of felony murder and child endangering are allied offenses ... Johnson’s beating of Milton constituted child abuse under R.C. 2919.22(B)(1). That child abuse formed the predicate offense for the felony murder under R.C. 2903.02(B). The conduct that qualified as the commission of child abuse resulted in Milton’s death, thereby qualifying as the commission of felony murder.”
Justices Paul E. Pfeifer and Evelyn Lundberg Stratton joined Chief Justice Brown’s opinion in its entirety. Justices Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in the Court’s judgment reversing the decision of the 1st District, and in the syllabus holding overruling Rance.
Justice O’Connor entered a separate opinion concurring in judgment but stating her belief that the lead opinion did not set forth the appropriate considerations for trial courts to apply in making future determinations about whether separate offenses should be merged. She wrote: “Much of the confusion is caused by the statutory terminology ‘allied offenses of similar import.’ … Our decisions have described the two features of allied offenses of similar import together. … 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).”
“Under the later formulations of State v. Winn … and State v. Harris … (both decided in 2009), 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. Offenses are of ‘similar import’ when the underlying conduct involves similar criminal wrongs and similar resulting harm. 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 Rance 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. … 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.”
“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 compelled 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).” Justice O’Connor’s opinion was joined by Justices Pfeifer and Cupp.
Justice Terrence O’Donnell entered a separate opinion concurring with the Court’s judgment and syllabus holding, but emphasizing that in his view the express language of R.C. 2941.25 requires that the “conduct of the defendant” should be considered in determining whether two or more offenses arising from the same occurrence constitute allied offenses of similar import.
Justice O’Donnell wrote: “(T)he proper inquiry is not whether the elements align in the abstract as stated in Rance 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.” Justice O’Donnell’s opinion was joined by Justice Stratton.
Contacts
Philip R. Cummings, 513.946.3012, for the state and Hamilton County Prosecutor's Office.
Lindsey R. Gutierrez, 513.587.2887, for Fred Johnson.
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