Another go-around on Rance
There were a couple of decisions from the Supreme Court last week that merit some discussion, and I'd promised you a discussion of the oral argument in State v. Winn, the latest case on allied offenses. We'll do the latter today, and the former tomorrow.
Well, what were you expecting here? Pictures of nekkid wimmin?
I've written any number of posts on allied offenses, the essence being that one would be hard-pressed to find an area of Ohio law that is more confused than this one, no mean feat considering the contenders for that award -- sentencing, sovereign immunity, stare decisis, to name but a few. As I mentioned in my latest jeremiad on the subject just three weeks ago, much of the problem stems from the logical underpinnings of the court's treatment of allied offenses, especially as embodied in its decision nine years ago in State v. Rance.
In Rance, the court had adopted an "abstract comparison" test to determine whether two offenses were allied: if it were theoretically possible to commit one without committing the other in the abstract (i.e., completely ignoring what had actually happened in the case), then they weren't allied, and the defendant could be punished for both. The entire basis for this is a dissenting opinion from Chief Justice Rehnquist in a US Supreme Court case, and there's nothing to indicate that the Chief Justice, God rest his soul, was having one of his better days when he authored it. The basic problem is that if you approach the issue in purely abstract terms, it is always theoretically possible to commit one offense without committing the other, because otherwise they wouldn't be separate offenses.
Winn presents the problem squarely: the defendant had broken into a house and forced the victim at gunpoint from the living room into the bedroom, then demanded money. Winn was convicted and sentenced for both kidnapping and aggravated robbery, but the 2nd District, on a plain error analysis, reversed. In doing so, the court relied upon the Ohio Supreme Court's statement in State v. Logan that kidnapping is "implicit" in every robbery, because robbery invariably involves some restraint.
The state's swinging for the fences in Winn, arguing that in every robbery, the defendant can also be convicted of kidnapping, because the elements are different in the abstract. Logan doesn't present an insurmountable hurdle to doing that: the "implicit" statement was dicta (Logan actually involved kidnapping/rape convictions).
So what's the court going to do? Here are the options, and how I handicap it:
Agree with the state. (Odds: 10-1). That would essentially eliminate the concept of allied offenses. That's a real tough sell.
Get rid of Rance. (7-1). There may be some momentum building for that. Justice Lindberg Stratton pointedly asked the prosecutor
"If they're really part and parcel of the same crime, what's the harm in treating them as the same crime? Prosecutors always want to punish every single thing separately, and sometimes that doesn't seem fair, doesn't seem right. And so the current status of the law that's been for many many years, is there one crime, and if there are very separate motivations, you can punish them separately. That seems like a much more inherently fair scheme."
That was certainly the law for the "many many years" before Rance came down. But as the court indicated in its decisions this past year in State v. Cabrales (discussed here) and just a few weeks back in State v. Brown (discussed here), it's willing to work around Rance, but doesn't have the will to overrule it. Besides, the test announced in Westfield Ins. v. Galatis for overruling precedent (discussed here) is exceedingly stringent; no decision has been overruled since Galatis came down in 2003. (Although if any case could meet that test -- the case was wrongly decided, it's unworkable or impractical, and overruling it wouldn't harm anyone who's relied on it -- Rance would.)
Modify/clarify Rance. (2-1). The court backed off Rance a bit in Cabrales, stating that Rance didn't require a strict comparison of the elements of the two crimes, without really explaining what that meant. The court could take another shot at explaining that here. The odds for the court doing that would be better if not for the unsettling notion that it really doesn't mean anything.
Punt the whole thing. (3-1). Given the range of options, don't be surprised if the court finds some way of avoiding Rance altogether, such as by finding that the movement of the victim here (from the living room to the bedroom) was sufficient to warrant a separate kidnapping conviction, which would meet the test for a dissimilar offense even under pre-Rance law. That would require some finesse: in Logan, the victim had been accosted in the street and forced into an alley and down some steps before being raped, and the court held that the kidnapping there merged with the rape. But don't rule it out. In fact, I'd rate the odds of an appeal dismissed for being improvidently allowed as no worse than any of the above possibilities.