Looking at the elements in allied offenses
The police respond to a call of a burglary in progress, and, when they arrive at the scene, see a van parked next to a dumpster. The van's crammed with a snow blower and a wood chipper, both of which were taken from a nearby store. They arrest the owner of the van, and few months later, he pleads guilty to breaking and entering, theft, and possession of criminal tools. Are the three crimes allied offenses?
The defendant robs the victim at gunpoint, then walks away. The victim runs after him, only to have the defendant turn around and fire a shot at him. Are the defendant's subsequent convictions for attempted murder and aggravated robbery allied offenses?
Now let's change the facts around just a bit. Here, the victim is confronted at gunpoint, but instead of surrendering his valuables, he takes off running. The defendant runs after him, firing several shots at him. Are the offenses of attempted murder and aggravated robbery allied in that scenario?
A couple of weeks back, I gently chided an 8th District judge -- well, let's hope he thought it was gentle -- for a concurring opinion in which he raised questions about the application of State v. Johnson, the Supreme Court's decision last year overruling State v. Rance and articulating a new test for determining whether offenses are allied. He'd suggested that Johnson had caused some confusion among the lower courts, and that some clarification was in order, specifically with regard to whether the offenses had been committed by the same conduct.
I haven't seen that confusion, but I'm beginning to come around to the view that judges are struggling with exactly how to apply Johnson. There are two major reasons for that. First, Rance was around for a long time -- 12 years -- and judges got used to applying it; a sizable segment of the common pleas and appellate benches never operated under anything besides Rance. (A quick and dirty count shows that up here in Cuyahoga County, 18 of the 34 common pleas judges, and 9 of the 12 appellate judges, came to the bench after Rance was decided.) Second, there's a tendency to think that Johnson simply restored the status quo ante. And arguably, that's not the case.
Allied offense analysis under Ohio law has always been a two-step process: the first required a comparison of the two crimes to see if they were allied, and the second a focus on the defendant's actions to see whether he'd committed the crimes with a separate animus. The lead pre-Rance case was Newark v. Vazirani, where the defendant had selling beer for a minor, and had been convicted of both that offense and tending to cause unruliness or delinquency in a child. The element of selling the beer in the first offense satisfied the element of causing unruliness, so the court found that the elements matched up sufficiently, and since the offenses were committed with the same conduct, the two merged. Rance, of course, required the elements to be compared in the abstract, without reference to the underlying facts.
But Johnson didn't roll the clock back to Vazirani. The latter case had held that "if the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses." (My emphasis.) Johnson, though, drawing from Justice Whiteside's concurring opinion in State v. Blankenship, holds that "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." (That emphasis is the court's.)
It might seem that's only a slight shift, but it's a major one. Notice that Vazirani talks about the "elements" of the two offenses. That word appears nowhere in Johnson's formulation: the defendant's conduct is the focus. What's more, that's also the focus of the second step of the analysis. Johnson, in simplified form, asks two questions: could the defendant have committed both crimes with the same conduct, and did he?
Before Rance, conduct was usually the sticking point, and it still is a problem. Are we talking about conduct as a "course of conduct," and if so, when does it end? A defendant breaks into a house, forces the owner into a bedroom, robs him, kills him, and then drags his body out in the back yard and stuffs it into a wood chipper. (But enough about the screenplay I'm working on...). Is that all one continuous course of conduct, such that his convictions for burglary, kidnapping, robbery, murder, and desecration of a corpse should merge?
That might be a bit far-fetched, but the 2nd District's decision in State v. Patel last week shows the difficulties of analysis. There, the owner of a business snuck up on a female employee while she was in the bathroom, locked the bathroom door, then grabbed her and put his hand down her pants. He argued that his convictions for abduction and gross sexual imposition should have merged. The State argued they're separate -- the abduction was completed when the defendant locked the bathroom door, and his fondling of the employee was a different act, so the offenses shouldn't merge. The 2nd District bought the defendant's argument, but the State's position was hardly untenable. Wasn't locking the bathroom door a discrete step which could have earned a separate conviction, as opposed to a scenario where the defendant simply walked up behind the employee in the breakroom and grabbed her? The scenario mentioned at the top of this post is also a 2nd District decision, State v. Adams, which they remanded back for a determination of whether the offenses were allied, finding that the evidence in the record -- the appeal came on a plea -- wasn't sufficient to decide that. But think about it for a minute: under that scenario, how would the trial court make that decision? What factors would it use in concluding "these offenses were committed with the same conduct" as opposed to "these offenses were committed with different conduct"?
The second scenario -- the victim pursing the robber, and getting shot at -- also comes from an actual case, the 8th District's decision last week in State v. Orr. The 8th rejected the contention that the two offenses should have merged, finding that the aggravated robbery was concluded before the defendant shot the victim. This raises the question presented in the third scenario: would they have merged if Orr shot the victim during the course of the robbery?
There's an argument to be made that Johnson's focus on conduct has blurred the first step of the analysis: examination of the elements. It's not unreasonable to suggest that we have different crimes for a reason. The legislature may have enacted the aggravated burglary statute because it found that people armed with a weapon breaking into other's people's houses was a serious offense, and enacted the aggravated robbery statute because it believed that robbing people at gunpoint was also a serious offense, and just because you broke into someone's house and then robbed them at gunpoint didn't mean that one or the other was a freebie. Especially if the legislature believed that robbing people after breaking into their houses posed more of a danger to society, and merited more punishment, than simply robbing them at gunpoint on the street. On the other hand, maybe that's not a reasonable argument. Legislative intent is the touchstone for analysis when deciding allied offense issues (specifically, did the legislature intend the imposition of multiple punishments), and the fact that both aggravated burglary and aggravated robbery have similar elements -- infliction of harm, or possession of a deadly weapon -- might indicate that they didn't in this scenario.
As I wrote a couple of weeks ago, some clarification of Johnson is going to be necessary down the road, but the time really isn't ripe yet for that. Seeing how the lower courts work through the issue over the next couple years will probably present a much better picture to the Supreme Court of what kind of clarification is necessary.