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Another look at the Deem test

Timothy Evans ran into some bad luck on November 18, 2005.  His simple purse-grab outside a store in Cleveland was foiled because the woman just held the purse tighter.  He told her he had a gun, but it didn't have the desired effect; "Well, you know what? You're going to have to use it," the victim replied.  When another customer saw the fracas and sounded the alarm as the two fought, Evans took off.

His luck got worse when he got caught two months later and indicted for aggravated robbery.  It improved when the judge, after a bench trial, acquitted him of the aggravated robbery, finding he didn't have a gun, but convicted him of simple robbery, on the theory that he committed robbery by threat of physical harm.

And Evans hit the jackpot a year ago when the 8th District vacated his conviction, holding that robbery wasn't a lesser included offense of aggravated robbery.

The Ohio Supreme Court held oral argument in the case two weeks ago, and whether Evans' luck holds out is up in the air.  Twenty years ago, in State v. Deem, the court laid down the test for whether an offense is a lesser included of another:  it carries a lesser penalty, you can't ever commit the greater offense without committing the lesser, and the greater offense has some additional element that's not contained in the lesser.  The test hasn't had a smooth ride;  last year's Supreme Court decision in State v. Smith (discussed here) resulted in the determination that theft was a lesser offense of robbery, although the court had earlier concluded that theft wasn't a lesser included offense of aggravated robbery.

The sometimes questionable results parallel what's occurred in allied offense analysis, for much the same reason:  under both, the elements of the two offenses are compared in the abstract, without consideration of the particular facts.  That's what the 8th District hung its hat on:   while aggravated robbery under the (A)(1) section requires proof that the defendant brandished or otherwise indicated he had a gun, robbery under the (A)(2) section requires that he "inflict, attempt to inflict, or threaten to inflict physical harm on another."  The 8th held that since "threaten harm" isn't one of the elements of aggravated robbery, robbery isn't a lesser offense of that crime.

It's arguable that that's not the right result under Deems, and involves the application of the wrong test for lesser included offenses.  There are actually two interests protected by the concept of lesser offenses.  One is the defendant's rights to grand jury indictment and notice of the charges against him:  if he's convicted of something that really isn't a lesser offense, he's being convicted of something that he wasn't charged with and didn't reasonably know about.  The other is his right against double jeopardy:  if he pleads or is convicted of one offense, regardless of whether it's the greater or lesser, it should bar his conviction of the other.

Back in 1931, the US Supreme Court layed down the Blockburger test for the double jeopardy aspect of lesser offenses.  That involved a comparison of the elements in each -- if each had an element that the other did not, neither was a lesser offense.  That test has been consistently applied in Ohio to determine the double jeopardy issue.

But while there's language in numerous court decisions saying that Deems is based on Blockburger, there's a noticeable difference between the two:  while Blockburger requires you to determine whether each offense has an element that the other does not, Deems only looks at whether the greater offense can ever be committed without committing the lesser.  In Evans, the appellate court determined that there were ways of committing the lesser offense without committing the greater:  you could threaten somebody without having a gun.  While that's relevant under Blockburger, it's not under Deems.

The State did a good job of pressing that issue, and understandably so:  it's hard to see how anybody could indicate he had a gun, let alone brandish or display it, without that constituting a threat of harm.  That offers the court the easiest way out in Evans:  they could simply hold that, even under a strict reading of Deems, robbery with threat of force is always a lesser included offense of aggravated robbery involving a gun.

The best alternative might be to modify Deems so as to allow the trial court to consider the actual evidence, especially since the trial court does have to do that in deciding whether to give the charge.  Just because theft is a lesser offense of robbery doesn't mean you're entitled to a charge-down on theft in every robbery case:  the judge has to decide whether there's any reasonable interpretation of the evidence by which the jury could conclude that you were guilty of theft but not robbery.  So with Deems  as it stands now, you have the anomalous situation that the judge can't consider the evidence in deciding whether one offense is a lesser included of another, but has to consider the evidence in deciding whether to charge on it.

But, as with Rance, modification requires overcoming a substantial amount of inertia.  I think the court will take the easier way out and just conclude that even under Deems, Timothy Evans got more lucky breaks than he deserved.

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