Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Allied offenses and "societal" interests

There's not too much question that Fred Johnson is a bad guy:  when giving a reading lesson to his girlfriend's seven-year-old son, he took umbrage that the boy couldn't pronounce "family," and beat him to death.  He was acquitted of the aggravated murder charge, but was convicted of felonious assault, two counts of felony murder, and three counts of child endangering.

And that's where the fun started.  One count of felony murder was based on the felonious assault, the other on one of the child endangering counts.  The trial judge merged the felonious assault and the one murder count, but sentenced him on each of the felony murder counts, albeit concurrently.  But he didn't merge the felony murder and the underlying child endangering count, and ordered all three of the latter counts to be served consecutively.  The 1st District concluded correctly that the two felony murders should have merged, and that the two child endangering counts which didn't underly the felony murder count didn't.  But it also held that the felony murder based on child endangering didn't merge with the underlying count of child endangering, and that's why everybody got together before the Supreme Court a couple of weeks ago to argue it out.

As the argument unfolded, the problem seemed to be the court's language in State v. BrownIn Brown (discussed here), the court reviewed an 8th District decision upholding separate convictions for aggravated assault, one under the "causing serious physical harm" subsection and the other under the "deadly weapon" subsection.  The court reversed, holding that resort to the two-tiered test for allied offenses espoused in State v. Rance and its prodigy is unnecessary "when the legislature's intent is clear from the language of the statute," and here it was:  while the statute defined two different forms of the offense, as the 1st District put it in Johnson, quoting Brown, "in each. . . the legislature manifested its intent to serve the same [societal] interest--preventing physical harm to persons.'"  The 1st then concluded that the felony murder and child endangering statutes each "protect different societal interests," and decided they didn't merge.  And, as both lawyers pointed out last week, this isn't an anomaly:  a number of other appellate courts have used the "societal interest" test in refusing to merge offenses.

But there's some sleight of hand at play here.  Notice that the "societal" part of the Brown test is the appellate courts' creation; Brown doesn't use that term.  It's one thing to say that a particular statute -- aggravated assault, in Brown's instance -- evinces a legislative intent to address a singular interest:  crimes which involve the actuality or threat of physical harm more serious than that occasioned by simple assault, when the actor is provoked.  It's another thing to conjure up a whole scheme of "societal" interests supposedly protected by the entire swath of criminal statutes.

The prosecutor began his presentation by suggesting that the debate centered over competing interests:  on the one hand holding the defendant accountable for the crimes he had committed, and on the other developing a "bright line" test to make the allied offense analysis more manageable.  The theory might be correct, but in this case it's really a Hobson's choice, because Rance is anything but a bright line; as the court admitted in State v. Cabrales, Rance has led to "inconsistent, unreasonable, and, at times, absurd results."  The court still clings to the belief that Cabrales' "clarification" of Rance staunched the bleeding, but it doesn't:  replacing a "compare the elements in the abstract and see if they match" with "compare the elements in the abstract and see if they match, but they don't have to match exactly" isn't terribly instructive. 

The prosecutor was on more solid ground when he noted that the allied offense statute itself begins with the phrase, "when the defendant's conduct," thus evincing the intent that conduct be the touchstone of the analysis.  As did his colleague a year ago in the oral argument in State v. Harris (discussed here), he urged the court to abandon Rance and go back to the test laid out in Newark v. Vazirani, in which a judge would compare the offenses to see if one necessarily resulted in the commission of the other under the facts of the case.

Whether four votes can be cobbled together to overrule Rance is another matter.  Don't misunderstand, I don't think there's any likelihood of Johnson being affirmed; not even the prosecutor mounted much defense of the decision.  But there are a number of ways to reverse Johnson without overruling Rance, the most likely of which is some clarification of Brown, probably in holding that whatever "interest" test it articulated, societal or otherwise, that's only addressed when you're dealing with different subsections of the same offense.

And so the impending decision in Johnson will produce a clarification of Brown, which clarified Cabrales, which clarified Rance.  And in a year or two we'll have a clarification of Johnson.  Johnson's lawyer, who was apparently making her first argument before the Supreme Court, and did a fine job of it, told the court that in preparation she'd watched a number of other arguments and that "it seems like you have a number of these [allied offense] cases."  Yes, and it must have seemed to Custer at the Little Bighorn that there were a helluva lot of Indians, too.


Recent Entries

  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it
  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives