Allied offenses update
Further evidence was offered in the past few weeks that the 8th District is having an awful time deciding how allied offenses work. In fact, one could make a pretty good argument that in the last month, they've yet to get a case right on this issue.
Back on August 14, in State v. Carter (which I discussed here), they upheld convictions of two counts of felonious assault -- one for deadly weapon and one for serious physical harm -- based on a single assault with a pair of scissors.
A week later, in State v. Hines, they decided that someone firing a single gunshot at somebody else could be convicted of both attempted murder and felonious assault. Last week they went the other way, ruling in State v. Stribling that possession of drugs and sale of drugs merged, if both charges involved the same drugs. That last result, unfortunately, runs directly contrary to the Supreme Court's decision in State v. Cabrales (discussed here), which held that possession and preparation for distribution and sale were allied offenses, but possession and sale weren't.
Of course, none of this makes sense, and won't, until the Supreme Court clears up the mess it made of allied offenses in State v. Rance. Cabrales took a step in that direction, acknowledging that Rance had led to "absurd" results, but, while modifying Rance's "abstract comparison" of the elements test, didn't do what it should done: get rid of the "abstract" part of the test, and look at whether it makes sense to impose two punishments for a particular crime under the particular circumstances presented. Shooting at somebody is one crime, stabbing somebody is one crime, and either possessing drugs or possessing drugs to sell them is one crime.
The Supreme Court made another run at allied offenses the other day in State v. Brown, an appeal from another 8th District case. There, Brown had been convicted of two counts of aggravated assault -- one under the serious physical harm section and one under the deadly weapon section. The appellate court had reversed, holding that the allied offenses analysis applied only where the defendant's conduct possibly constituted two or more offenses. Here, it didn't; there was only one assault.
The Supreme Court unanimously affirmed, although Justice O'Donnell's opinion conceded that, under Rance, the two offenses were dissimilar, since it was possible to commit each offense without committing the other. (I.e., you can cause someone serious physical harm without using a deadly weapon, and you can use a deadly weapon without causing serious physical harm.)
So how'd they wind up concluding that the two convictions should be merged? By deciding that the entire test for allied offenses isn't necessary "when the legislature's intent is clear from the language of the statute." The law on allied offenses stems from double jeopardy concerns -- you can't be punished twice for the same conduct -- and the way that's boiled down is that the central consideration is whether the legislature intended to impose cumulative punishments. The court looked at the overall legislative scheme of assault crimes and decided the legislature had intended only one punishment for aggravated assault, regardless of how it was committed.
Justices Lanziger and Pfeifer concurred in the judgment, arguing that the discussion of legislative intent was wholly unnecessary; according to Lanziger's opinion, "the problem of allied offenses is obviated when the defendant's conduct involves a single act with a single animus, and the offenses charged are different forms of the same crime."
That's a fairly sensible solution to the question raised in Brown, but it ignores the fact that the real problem with Ohio's allied offenses jurisprudence is its shaky underpinnings. The allied offenses concept implicates the Double Jeopardy Clause's prohibition against multiple punishments for the same offense. Ohio's law on the subject relies heavily on two US Supreme Court decisions. The first is Missouri v. Hunter, in which the Court held that it wasn't a violation of the Double Jeopardy Clause to impose multiple punishments for a crime if that's what the legislature had clearly intended. The second is Whalen v. US, where in his dissent Justice Rehnquist argued for the "abstract comparison" test the Ohio Supreme Court adopted in Rance.
But a dissent serves as a questionable basis for a theory, and the court's application of Hunter is also of arguable merit. Hunter was convicted of armed criminal action and robbery, and the legislature had clearly stated that the penalties the former action were to be applied in addition to any underlying crime; there was no question of legislative intent.
On the other hand, there's absolutely nothing to indicate that the Ohio legislature intended to allow someone who sold drugs to be punished not only for selling them, but for possessing the drugs he sold. In short, the court's turned the test on its head: the court assumes that the legislature intended double punishment unless it appears clear that they did not.
Before Rance, allied offense analysis under Ohio law properly focused on the acts and the animus. Where the defendant drove the victim to another place and raped her, obviously there were separate acts of kidnapping and sexual assault. What's more, it made sense to punish both: kidnapping creates an additional harm to the victim. Since Rance, as even the Supreme Court acknowledged in Cabrales, courts have come to "inconsistent, unreasonable, and, at times, absurd results" in determining whether offenses were allied.
Cabrales didn't clean this up, and neither does Brown. The best thing to do would be to overrule Rance, and go back to looking at legislative intent, and using a common-sense application of the element comparison test; as Justice Whiteside put it in his concurring opinion in State v. Blankenship,
In determining whether the two offenses are allied offenses of similar import, a comparison of the elements of the two offenses must be made. However, in making this comparison, it is not a comparison as to whether one offense cannot possibly be committed without committing the other, but rather whether the nature of the elements of the offenses is such that in some instances they may overlap, that is, that in certain instances, both crimes may be committed by the same conduct. It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct.
That was how allied offenses were determined before Rance, and nobody was complaining about "unreasonable" or "absurd" results back then. Rance was a bad decision, and it's time to put that puppy to sleep.