Allied offenses: what standard of review?
On the night of June 22, 2009, Jason Williams decided to get his creep on. His eight-year-old niece had taken him behind her grandmother's car to show him a bumper sticker. He pulled up her skirt and underwear, put his mouth on her "private," then pulled her by the arm into the garage and raped her. That led to Williams' conviction for two counts of rape, three counts of gross sexual imposition, and one count of kidnapping with a sexual motivation specification.
Now, you make the call: were the kidnapping and rapes allied offenses? The trial judge concluded that they weren't, but a year ago, in State v. Williams, the 8th District came to a contrary conclusion. So on Wednesday everybody got together for the oral argument before the Ohio Supreme Court to figure out who was right.
Now, if you're a faithful reader of this blog, you're saying, "Gosh, Russ, you've been telling us for years that the Supreme Court's not in the business of error correction. What was the hook the State used to get the case accepted?" (You might also be saying, "Gosh, Russ, is this your latest literary conceit? To fashion imagined conversations with your readers?") You'd be right (on both counts, sadly): yes, the State couldn't get in the door simply by asserting that the 8th District screwed up. After all, there's no question that rape and kidnapping are allied offenses, which means that the only question is whether they were committed with separate conduct. Maybe the 8th got that question right, maybe it got it wrong, but the Supreme Court's response to this would ordinarily be, why is this our problem?
So if you can't argue result, argue process. The standard of review is often outcome-determinative on appeal, and if you're defending the result a trial court came to, you want to shoot for the most deferential standard of review, abuse of discretion. And that's what the State did: it contended that the 8th District should have applied an abuse of discretion standard to the lower court's decision that the offenses didn't merge.
It's a decent argument, at first blush. Allied offense analysis is a two-step process: you first determine whether the offenses are indeed allied (whether it is possible to commit both offenses with the same conduct), and then determine whether they were committed with the same conduct and animus. The prosecutor argued a simple division of labor: the appeals court, under a de novo standard, decides whether the offenses ar allied, and the trial court decides whether they were committed with separate conduct or a separate animus.
There are problems with the argument, though. First, the abuse of discretion standard is generally used in those areas in which trial courts have traditionally been accorded a great deal of leeway -- sentencing, management of a trial, and in situations where the lower court can take advantage of its superior opportunity to determine credibility -- while de novo review is preferred for legal issues. Whether Williams dragged the little girl between the houses was a fact for the trial court to determine; whether that was sufficient to constitute separate conduct for kidnapping is a legal issue. That's basically the way things work on appeals from motions to suppress: the appellate will defer to trial court's factual findings unless they're clearly erroneous, but will do its own application of the law to the facts.
The second problem is how application of the abuse of discretion standard would impact the development of the law on allied offenses. In the vast majority of cases on that subject in the past thirty years, few courts have even declared what standard of review they're using, primarily because they didn't need to. Allied offense law, especially under Rance but even before that, was almost exclusively a legal question: were the elements of the two crimes sufficiently similar to constitute allied offenses? The court's 2010 decision in State v. Johnson (discussed here) changed all that. The "possible to commit" formulation in the first step makes the list of potentially allied offenses virtually limitless, and so the result depends almost exclusively on the second step. Using abuse of discretion for review in that step would result in decentralization of allied offense law, with trial, not appellate, courts establishing the boundaries of what constitutes separate conduct or animus.
Perhaps for that reason, most of the judge's questions during oral argument in Williams were focused not on the standard of review, but on whether the kidnapping was distinct conduct from the rapes. Defense counsel might have simply argued that this takes us back to result, not process, and relied upon the fact that the court isn't in the business of correcting error. As many defense attorneys have found, however, the court has a tendency in those situations to figure, "Hey, we're not here to correct errors, but as long as we're all here, let's correct some error."
In this respect, the prosecutor ran into several more problems. First, the kidnapping count contained a sexual motivation specification, which is what the 8th District had hung its hat on in deciding that the kidnapping and rapes involved the same conduct. That's really not a valid argument: had Williams thrown the girl into the trunk of his car, driven across town, and held her in an apartment overnight while he raped her, no one would argue that this wasn't sufficient separate conduct to support a charge of kidnapping with sexual motivation. But that brings us to problem number two: separate conduct in the context of rape and kidnapping has required some substantial removal or heightened threat of harm. Back in 1979, in State v. Logan, the Supreme Court held that forcing someone at knifepoint into an alley and raping her didn't constitute separate conduct, so it's hard to see how Williams' acts can be distinguished from that.
So what's the court going to do? This is the first time they've looked at allied offenses since Johnson, and don't be surprised if they skip past the standard of review issue and use the opportunity to clarify Johnson. Back when I discussed the 8th District's decision in Williams (here), I'd mentioned the "thoughtful concurring opinion" (the adjective probably signifying a fawning, and ultimately futile, attempt to curry favor with the court), which noted that Johnson provided no specific test for determining whether there was separate conduct or animus. Since that's now the key focus of allied offense analysis, the court might decide to provide one.