Allied offenses after Johnson
It may have seemed like a good idea at the time. Well, probably not. There's frequent mention in the case law about the connection between drug dealers and guns, but Boller, Osman, and Abdi weren't exactly students of the law. Boller was a common thug, and the other two were 16-year-olds from Columbus, visiting some buddies in Athens County and looking for a thrill. So a thrill it would be: they'd rob a drug dealer.
The plan was tactically sound: Boller was to remain at the roadway, providing cover with a rifle, while the other two approached the trailer. When the dealer opened the door, Osman pulled a gun, but things went all to hell in a hurry. Turns out the dealer was expecting them, as were several of his friends. Osman and Abdi scampered down the driveway as gunfire erupted from the trailer. They were unharmed, but Donnie Putnam wasn't so lucky. He'd picked that particular time to drive up to buy some drugs. He saw the two boys at the door at the trailer as he pulled up, and got out to see what was happening. A bullet fired by someone in the trailer hit him in the chest, mortally wounding him.
Boller and the others were quickly caught. They were separately tried for aggravated robbery and felony murder, which makes you guilty of a homicide if somebody dies as a result of your commission of another felony, in this case, the robbery. Each was convicted, and given maxium consecutive sentences of 28 years to life.
I was retained to handle the appeal. Normally, I'm not one for throwing a lot of assignments out there, but this time I did: nine in all. Two weeks ago, in State v. Abdi, the 4th District gave short shrift to eight of them, but reversed on the first, holding that aggravated robbery and felony murder were allied offenses, and remanding the case for determination by the trial court of whether they were committed with a separate animus.
To a large extent, the result was dictated by the Supreme Court's decision last December in State v. Johnson. The defendant in Johnson had beaten his seven-year-old son to death; the issue was whether the resulting convictions for felony murder and child endangering were allied offenses. Under the test the Supreme Court had followed since its 1999 decision in State v. Rance, they wouldn't be: Rance's first step called for the elements of the offenses to be compared in the abstract, without reference to the underlying facts. One can commit felony murder without committing child endangerment, and vice versa. The End.
The problems with the Rance test eventually made it unmanageable, and the Supreme Court discarded it in Johnson, opting instead for a test which focused on the defendant's conduct. Former Chief Justice Brown's opinion lays out the test:
In determining whether offenses are allied offenses of similar import, the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.
If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., 'a single act, committed with a single state of mind.'
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
The first problem is that Brown's opinion garnered the concurrence of only two other justices. O'Connor concurred only in the judgment, although it appears her quarrel with the lead opinion was its clarity, not its substance, for she arrives at the same place:
At trial in this case, the state relied on the same evidence to establish that Johnson's conduct - severely beating Milton and causing his death - violated both the child-endangering statute and the felony-murder statute. . . I am compelled to conclude that the convictions in this case arose from the same conduct that involves similar criminal wrongs and similar resulting harm and, accordingly, are allied offenses of similar import that must merge for the purpose of sentencing.
The bottom line is that the only four justices who analyzed the precise factual question concluded that the offenses merge when they arise from the same conduct.
That was an easy argument to make in Johnson: the beating which resulted in child endangerment is indistinguishable from the beating which resulted in the boy's death. While the State had to prove the additional fact that the defendant's commission of the underlying offense had resulted in death in order to obtain the conviction for felony murder, it had to prove no additional conduct by the defendant: proof of the act sufficient to constitute the predicate offense was also sufficient to prove the superior offense.
One is tempted to argue that Abdi presents a different scenario: there is no similar linkage between the robbery and Putnam's death. The child's death in Johnson was a natural progression in the offenses, an elevation from the predicate offense to the greater. The death in Abdi does not at first blush present that sort of natural progression.
But that's because analysis is still distorted by Rance and even, to a degree, pre-Rance cases; we still tend to focus on the elements, to think in terms of whether the two offenses are truly separate crimes. But Johnson dispenses with that, and focuses solely on conduct: did the defendant, by his conduct, commit separate crimes? And here the Abdi court gets it exactly right. The only conduct of Abdi was the commission of the aggravated robbery. The fact that Putnam was killed makes Abdi legally culpable of felony murder as well, but he engaged in no additional act or conduct, beyond the commission of the robbery, which caused that death. (In fact, the prosecution told the jury numerous times during the trial that they didn't have to prove that Abdi was the one who shot Putnam, or that he fired a gun, or that he even had a gun. Indeed, the State subsequently indicted someone else for Putnam's death and obtained a plea in that case.)
As Bluto promised in Animal House, though, this isn't over until it's over: I've talked to the prosecutor, who's been gentlemanly and reasonable throughout the case, and he tells me that the Forces of Darkness -- that is, the Ohio Prosecutor's Association and the Attorney General's office -- are up in arms about the decision, and so an appeal is coming. We'll see what happens, but I think the 4th District did a good job of getting the Johnson analysis exactly right.
Then again, I'm not exactly an unbiased observer, am I?