What Williams decided -- and didn't
Two weeks ago, in State v. Williams, the Ohio Supreme Court tackled the issue of allied offenses for the first time since its landmark decision two years ago in State v. Johnson (discussed here). Johnson jettisoned test employed by State v. Rance, where the elements of the two offenses had to be compared in the abstract, without reference to the underlying facts. Instead, according to the plurality opinion, the focus was on the defendant's conduct: if the two offenses could've been committed with the same conduct, they were allied, and if they were committed with the same act, they merged.
While Johnson was a significant improvement over Rance, simply because Rance proved utterly unworkable, as I've mentioned before, Johnson left a number of questions unresolved. When I discussed the oral argument in Williams, I'd suggested the court might "use the opportunity to clarify Johnson," thus displaying my customary prescience, similar to my decision to forego the IPO in Google on the theory that it was just a "passing fad."
Well, not quite that bad. Williams did decide some things, and left some for another day. Let's look at what it did and didn't do.
Strictly speaking, Williams presented only a single issue: the standard of appellate review for a trial court's decision on whether offenses are allied and should merge. Williams had dragged his eight-year-old niece from behind a car to the garage and raped her. The trial judge had found that Williams' convictions for kidnapping and rape were separate offenses, but the 8th District held that they should have merged. The State took it to the Supremes, arguing that the 8th should've used abuse of discretion as the standard of review.
The court easily resolved that issue, holding 6-1 that the appropriate standard was de novo review. That's the correct result, for reasons I've mentioned before. The analysis here is similar to that for motions to suppress: the appellate court has to defer to the trial judge on issues of fact, but then makes its own application of the facts to the law. If the trial judge finds that a defendant agreed to allow the police to search his house, the appellate court will ordinarily be bound by that determination, but can still find that the consent wasn't voluntary, but was instead merely a "submission to a claim of lawful authority." (A classic case of this is the 8th's recent decision in State v. Clark, discussed here.) Similarly, whether Williams dragged the girl to the garage was a question of fact for the trial judge; whether that was sufficient to constitute a separate act from the rape was a question the appellate court could reviewde novo.
But Williams leaves two major issues unaddressed. The first is exactly what the test is for allied offenses. Williams begins its analysis of the case law by citing the court's 1988 decision in State v. Blankenship, which established the two-part test, and then cites Johnson's syllabus. But there's a subtle difference between the test in Blankenship and the one in Johnson. Here's Blankenship's first step:
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 of similar import and the court must then proceed to the second step.
It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct.
There's some daylight between saying that one crime wll result in the commission of the other, and that both crimes can be committed by the same conduct. In fact, that distinction was made by Justice Whiteside in Blankenship; the language from Johnson is a quotation from his concurring opinion in the earlier case. The problem here, of course, is that the language in Johnson is from the plurality opinion; four justices concurred only in judgment, with O'Connor writing that she did so because "I do not believe that the majority opinion clearly sets forth the appropriate considerations for determining whether offenses arise out of the same conduct and should be merged." As I mentioned when Johnson came down, this might have had more to do with personality; O'Connor had just defeated Brown, the author of the plurality opinion, in the election, and her opinion didn't indicate any specific areas of disagreement with Brown's approach. Nonetheless, Williams' citation only to the syllabus of Johnson, with no reference to the actual plurality opinion, is not helpful in clarifying the law.
Nor does Williams address one of the main complaints about the current state of allied offense law: when exactly are two offenses committed with the "same conduct"? Johnson offered an easy case: Johnson had beat his seven-year-old son to death, and it was clear that act constituted both child endangering and felony murder. But what of the robber who pistol-whips his victim into a coma: can he be convicted of both aggravated robbery and felonious assault? There have been cases where a court has held that breaking into a store after hours and stealing merchandise permit the B&E and theft charges to merge.
And what is perhaps most peculiar about Williams is that it afforded the perfect opportunity to address the latter issue. Was there really only one act in Williams? The trial court found that there were two, correctly noting that had the victim escaped once she was taken into the garage, there would still have been a kidnapping. This gets back to another earlier case, State v. Logan, a 1979 decision in which the court held that where the defendant had dragged the victim at knifepoint into an alley and raped her, the kidnapping and rape merged. Logan laid down a test for deciding whether the two offenses were allied, basically requiring that in order to avoid merger, the state had to show that the restraint was not merely incidental to the rape, but that there was some substantial movement or increase in the risk of harm.
And you could make a fairly good argument that under its own standards Logan was wrongly decided: obviously, the movement from the street to an alley was committed with the separate purpose of avoiding possible detection. It's hard to envision the current court coming to the same result. In fact, the final sentence of the opinion in Williams hints at as much:
Since the state demands reversal based only upon its assertion that the court below should have applied an abuse-of-discretion standard of review, we affirm the judgment of the court of appeals.
That might have been a missed opportunity for the state.