The latest on allied offenses
This week, anyway. Back in October, I'd reviewed the oral argument in State v. Winn, the latest effort in the seeming Sisyphean task of articulating a coherent standard for determining allied offenses, the lack of which I've addressed ad nauseam (sample here). The court handed down its decision yesterday, so it's time to sift through the entrails.
Winn had broken into into the victim's home, and forced her at gunpoint from the living room to the bedroom. That earned him a conviction of both kidnapping and aggravated robbery, but the 2nd District had vacated the former, deciding that it merged with the robbery. So everybody trundled off to the Supreme Court for the latest go-round on this subject.
Although the court had previously held in dicta that kidnapping is implicit in every aggravated robbery -- holding a gun on a victim to perpetrate the robbery also restrains the victim of his freedom -- the State argued that the subsequent decision in Rance changed that. Allied offense analysis necessarily requires the comparison of the two offenses; as those who've faithfully read my jeremiads on the subject know, Rance mandated that the comparison of the elements be made in the abstract, without regard to the facts of the particular case.
After some obligatory gestures toward Rance, the Winn majority noted that the court's decision last year in State v. Cabrales "clarified" that Rance shouldn't be read as requiring a "strict textual comparison" of the elements, then proceeded to analysis of the statutes here:
It is difficult to see how the presence of a weapon that has been shown or used, or whose possession has been made known to the victim during the commission of a theft offense, does not also forcibly restrain the liberty of another. These two offenses are so similar that the commission of one offense will necessarily result in commission of the other.
Back when I'd previewed the case, I'd mentioned that the State was going for broke and arguing that under the Rance test, the two offenses never merged, because it was possible to commit robbery without committing kidnapping, and vice versa. (As the opinion points out, the State could've argued, but didn't, that the movement of the victim from one room to another was sufficient to create a separate animus for the kidnapping.) I'd indicated that was a long shot, but it turned out a closer call than I'd figured: three judges -- Moyer, O'Connor, and Cupp -- bought into it. In other words, we were one vote away from every person charged with aggravated robbery being subject to a conviction -- and consecutive sentence -- for kidnapping as well.
The minority's chief gripe was that the majority was eschewing Rance's rigidly formulaic approach, which required determination of whether one offense necessarily resulted in commission of the other, for the less demanding approach of whether one offense probably results in the other. After postulating several scenarios under which one could conceivably commit aggravated robbery without kidnapping -- e.g., "a pickpocket points a gun at the victim, but the victim does not know he is a victim of theft, and therefore suffers no restraint of his liberty" -- the dissent complained that the new standard will be "unworkable" and will leave trial courts "little guidance in determining when two offenses are similar enough that they should be merged as allied offenses."
Those who live in Rance houses shouldn't throw unworkable stones; even the court in Cabrales conceded that Rance had led to "absurd" results, and the morass that is currently Ohio's allied offenses jurisprudence led one prosecutor a few months ago to plead with the court to toss out rance and go back to the law as it was twenty years ago. The majority's strained hypotheticals bring to mind Public Defender John Martin's statement at that same oral argument that the discussion of allied offenses anymore seems to consist of debates over "how many felonies can dance on the head of a pin."
That case, State v. Harris, is still pending decision. I wouldn't bet on it being the stake that's driven into Rance's heart, but the Winn decision made the odds on that happening a bit better.