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Lesser included offenses

The facts in State v. Smith are pretty clear.  Smith and a friend were shoplifting, with the help of the friend's children, and when the security guard intervened and things started going south, Smith got a bit porky, knocking over a table and biting the security guard before she was finally subdued.  That got her charged with robbery, or "aggravated shoplifting" as it's known in the trade:  using force while committing or attempting to commit a theft offense.  Smith wound up with a sympathetic judge who, after a bench trial, convicted her only of felony theft.  But having caught one break, Smith tried to get another.

She appealed, claiming that theft is not a lesser included offense of robbery, so she really was entitled to discharge.  She based her argument on the test that the Ohio Supreme Court established in 1988, in State v. Deem, for determining whether one offense was a lesser-included offense of another:

(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

Smith's argument honed in on the second part of the test, arguing that robbery could indeed be committed without the lesser offense of theft being committed, too.  How?  Look back at the definition:  robbery can arise when the defendant merely attempts to commit a theft, while theft requires the completed crime.  Thus, theoretically, robbery could be committed without a theft also being committed, taking theft out of the lesser-included-offense status.

From this point on, things get weird.  Back in 2000, the Supreme Court in State v. Carter had bought the exact same argument with regard to aggravated robbery and theft.  Carter was a death penalty case also involving an aggravated robbery charge, and the defendant argued he was entitled to a charge on the lesser-included offense of theft.  The Court said no, pretty much using the same language that Smith would echo eight years later:

The issue becomes whether aggravated robbery, as statutorily defined above, can ever be committed without theft, as statutorily defined above, also being committed. We answer that question in the affirmative because aggravated robbery can be committed in the course of an "attempted theft."  Theft requires the accused to actually obtain or exert control over the property or services of another; attempted theft does not.

So, the court of appeals in Smith cites Carter to reverse the conviction, right?  Nope; it doesn't even mention Carter, but instead cites a 1983 Supreme Court case -- which was decided four years before Deem -- in which the Court held that theft was a lesser included offense of robbery.

Well, then, certainly the Supreme Court set things right and reversed Smith's conviction on the basis of Carter, right?  Nope; the Court instead decided to modify the second part of the Deem test:

when applying the second part of the Deem test in cases involving statutes phrased in the alternative, such as the robbery statute, a court must consider each alternative method of committing the greater offense when deciding whether "the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed." Therefore, in determining whether an offense is a lesser included offense of another when a statute sets forth mutually exclusive ways of committing the greater offense, a court is required to apply the second part of the test established in Deem. . . to each alternative method of committing the greater offense.

What that lacks in clarity, it certainly makes up for in redundancy.  The short version is that because robbery can be committed in alternate ways, the appropriate alternate is compared to the lesser offense:  since robbery while committing a theft can never be committed without also committing a theft, and robbery while committing an attempted theft can never be committed without also committing an attempted theft, both theft and attempted theft are lesser included offenses of robbery.

Of course, it's impossible to square that result with the outcome in Carter, so the Supreme Court overruled Carter, right?  Nope; while the Court at least mentioned Carter, it made little attempt to distinguish it and none to overrule it.  As Justice Pfeiffer acidly notes in his dissent:

Does the majority overrule Carter? No -- it is more important to the majority to perpetuate the folly of Westfield Ins. Co. v. Galatis, and its almost-always-inapplicable set of factors for overruling precedent than it is to set forth a coherent jurisprudence.

Just a month ago, I'd commented on the problem with Galatis and the test it enunciated for determining whether a prior decision should be overruled.  Both Pfeiffer and Justice Lanzinger are now on record as saying that Galatis' formulation is far too stringent, and that the result is that instead of overruling bad or inconsistent decisions, the Court ignores them, leading to a hodge-podge of conflicting results.  Pfeiffer again:

Thus, the law in Ohio now says that theft is a lesser included offense of robbery but that theft is not a lesser included offense of aggravated robbery. Welcome to Wonderland.

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