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Allied and lesser offenses

Last week, the Ohio Supreme Court took another look at the question of when offenses should be merged and when judges should charge on lesser included offenses, and actually clarified both.  If you read that and felt that you'd been transported to a parallel universe in which Ohio law actually makes sense, well...

The first case, State v. Evans, involved lesser included offenses, and I'd written about it after the oral argument (post here).  In a nutshell, Evans had been charged with aggravated robbery (with a gun), and after a bench trial had been convicted of robbery (threatening physical harm).  The 8th District tossed it, finding that under the Deem test, robbery wasn't a lesser offense of aggravated robbery, since an element of robbery was a threat of harm, and aggravated robbery didn't include that element.

As I'd mentioned at the time, the 8th used the wrong test:  while it correctly held that robbery could be committed without using a gun (you can threaten somebody without a gun), the actual test requires a determination of whether the greater offense can ever be committed without committing the lesser, i.e., can aggravated robbery be committed without also committing a robbery?  Evans'  attempts to create a hypothetical whereby this could happen were creative, to say the least:  a person in a hardware store buys a hunting knife while shoplifting a bag of nails, thereby indicating he possesses a weapon while commiting a theft offense, but not making a threat of harm.   (Since this was out of the Cuyahoga County PD's office, I'll have to check with my buddy John Martin to see how many beers were necessary to produce this scenario.  I'm putting the over/under at 9.)

The court wasn't impressed, either, rejecting an approach which would "lapse into strict textual comparison" of the elements.  It modified the second part of the Deem test -- whether the greater offense as statutorily defined can ever be committed without committing the lesser offense -- by taking out the word ever, and called it a day.

State v. Harris, the other case that came down last week, involved the related subject of allied offenses.  I'd blogged about the oral argument on that as well; it featured a prosecutor who'd beseeched the court to overrule State v. Rance, the 1999 case which established that the test for determining whether two offenses were allied, and therefore merged, involved a comparison of the elements in the abstractRance is probably the most vilified current decision in Ohio law; in fact, it's hard to think of what's in second place.

Harris had robbed three people, and his co-defendant had shot at two of them.  That netted him six robbery convictions (three for deadly weapon, three for harm), and five for felonious assault (three for deadly weapon, two for causing serious physical harm.)  The case begins with a recitation of Rance's "evolution," or, more accurately, the court's increasingly desperate attempts to retreat from the decision without going to the trouble of overruling it.  State v. Cabrales (discussed here) was the first milepost on that retreat, with the court's pronouncement that the abstract comparison of the elements need not be "strict."

Needless to say, "not strict" isn't the clearest of standards, and the court has spent the past year since Cabrales clarifying exactly what it means.  The big move in that direction came in State v. Winn (discussed here) in which the court, 4-3, held that kidnapping and robbery were allied offenses, over the apoplectic dissent that the majority was rewriting the Cabrales test:

[i]nstead of requiring that the commission of one offense necessarily results in the commission of the other, the majority requires that the commission of one offense probably results in the commission of the other.

(And while I criticized the defense scenario that one could commit aggravate robbery without committing robbery, that was no less strained than the dissent's hypothetical as to how one could commit robbery without also committing kidnapping:  "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 court in Harris follows Winn, finding that aggravated robbery and robbery, and the two forms of felonious assault, "are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim."  Actually, all seven justices agree on this, with the only dissent coming as to whether a remand is necessary to determine whether the assaults were committed with the same animus.  Two justices, Cupp and O'Connor, reluctantly concur in the opinion, on the basis that Winn is now the law and they're obligated to follow it based on stare decisis.  Interestingly, Chief Justice Moyer, one of the dissenters in Winn, does not join in that concurring opinion.

So what's it all mean?  Given the two decisions, it seems that the Supreme Court is moving to the point where what actually happened in a crime, rather than what could theoretically be imaginable, is going to determine whether offenses are allied or chargeable as lesser includeds.  For those who value clarity in the law, that can only be a good sign.

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