Making sense of allied offenses
A man flees the police, hitting speeds of 100 mph, before losing control of the car and slamming into a tree. He walks away unscathed, but his four passengers aren't as lucky: they're all killed. How do four dead passengers wind up as eight convictions of aggravated vehicular homicide?
The 1st District tried to provide an answer to that question last week in State v. Hundley, but succeeded mainly in demonstrating the absurdity of Ohio law on allied offenses of similar import. "Allied offenses of similar import" is lawyer language for the simple idea, embodied in the Double Jeopardy clause, that you shouldn't be punished twice for what is essentially the same crime.
For example, take a rape case. Rape invariably requires some restraint of the victim, and it's typical for the state to indict a defendant for both rape and kidnapping. That's exactly the situation the Supreme Court faced back in 1979 in State v. Logan: the defendant had accosted the victim, forced her at knifepoint into an alley and down a flight of stairs, and raped her. The Court held that the "kidnapping" was merely incidental to the rape -- the movement was slight, the restraint no longer than necessary to accomplish the rape, and there was no additional threat to the victim occasioned by the kidnapping. The court concluded that there was no separate "animus" for the kidnapping, and thus it merged into the rape. The court reached a similar result 11 years later in Newark v. Vazirani, holding that convictions for selling beer to a minor and for causing a child's unruliness merged, because under the facts of the case the commission of one offense would necessarily result in the commission of the other.
But nine years later, in State v. Rance, the court overruled Newark, deciding that while the test involved a comparison of the elements of the two crimes, the test had to be performed in the abstract; in other words, the test was whether one crime could ever be committed without committing the other.
The absurdity of this should be apparent: of course it's possible to commit one crime without committing the other, because otherwise they wouldn't be separate crimes. And that absurdity is highlighted by what happened in Hundley last week. The defendant was charged with aggravated vehicular homicide under two separate divisions of the statute: driving recklessly, and driving while intoxicated. The court concluded that, in the abstract, it was possible to drive recklessly without being drunk, and thus eight counts of homicide for four dead bodies was permissible.
Rance has been heavily criticized, even by appellate courts, in terms uncommonly vituperative for judges of an inferior court. (One opinion observed that Rance "might not be good law, but it is the law.") Apparently, even the Supreme Court isn't thrilled with Rance, because just three years ago, in State v. Adams, it declared that convictions for rape and kidnapping should've merged, because there was no separate animus for the kidnapping. The decision referred specifically to State v. Logan, and applied the same analysis, despite the fact that in Rance the court expressly overruled Logan. The Adams decision never mentions Rance or uses its test of comparing the elements of the two offenses in the abstract. In fact, there are a number of appellate courts that have concluded that Adams overruled Rance.
It didn't, but it should. The Supreme Court really needs to take another look at this, and hopefully consign Rance to the dustbin. It doesn't make sense, and it leads to results that are simply bizarre. As the dissent in Hundley put it,
Four people were killed by Hundley's criminal conduct. Nowhere this side of Oz can that amount to eight counts of homicide.... Cases such as this -- which defy logic -- cause normal people to wonder at the machinations of the law.