Reading the tea leaves of State v. Washington
The Ohio Supreme Court's decision two weeks ago in State v. Washington was the first time the court's looked at the test it articulated three years ago in State v. Johnson for determining whether offenses were allied. Washington is noteworthy not for what it holds, but for what it says.
Let's get Washington out of the way first. He'd led police on a wild car chase, then bailed after the inevitable crash and ran into the woods, where the police finally tackled him. He was convicted of failure to comply and obstruction of justice, and at sentencing the State contended that there had been separate conduct - the failure to comply was the car chase, and the trek into the woods was obstruction of justice. The judge agreed, and gave him consecutive time, but the 9th District, in a split decision, reversed, holding that the State couldn't argue that distinction at sentencing since they hadn't made it at trial. That's an easy one: allied offenses is a sentencing issue, not a trial issue. The State isn't obligated to present evidence on the issue at trial. The End.
Let's take a closer look, though. We'll start with a...
Quick and dirty legal analysis. Determining whether two offenses are allied, and merge, is a two-step process, referred to as the "elements" prong and the "conduct" prong. The first step compares the elements of the two crimes. In its 1999 decision in State v. Rance, the court announced that the elements were to be compared in the abstract, without regard to the underlying facts. As the court recognized several years later, this led to illogical and unreasonable results, and after keeping Rance on life support for a few years, the court overruled Rance in Johnson.
So what was the new standard in Johnson? Other than overruling Rance, the court didn't agree on much else. The syllabus was unanimous, but outgoing Chief Justice Brown's opinion found only two other votes. The plurality's view was that, in examining the elements, the key consideration 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 two were allied, you then proceeded to the "conduct prong": did the defendant commit the offenses with the same act and same animus?
That was a big change, because courts hadn't had to deal with the conduct prong under Rance: if you managed to leap the hurdle of comparing the elements of crimes -- four years ago, the Supreme Court came within one vote of holding that one could be convicted of the separately punishable offense of kidnapping any time they robbed someone -- it was pretty much indisputable that he'd done it with the same conduct. Now, conduct is the focal issue.
So, what does a reading of the tea leaves in Washington add to this?
Johnson established a far more defendant-friendly standard than Rance, and you get the feeling that this essentially conservative court is not happy with that. French's opinion for a unanimous court asserts that the defendant has the burden of proving that the offenses are allied and should merge. That's huge; allocating the burden of proof is often outcome-determinative.
More tantalizing is French's treatment of Johnson, and especially its first prong. She gives an abbreviated history of the pre-Rance era, Rance, and Johnson, and then notes that "beyond the syllabus [overruling Rance], however, we were divided as to how to consider a defendant's conduct in the first prong's 'similar import' analysis."
So how does the court resolve that division? It doesn't. That's the last time the first prong is mentioned. French then launches into an exposition of how Johnson didn't change the second prong, and concludes by holding that the court of appeals was wrong in considering only the trial evidence in making its ruling.
There's some question as to whether the "division" in Johnson that French cites actually exists. O'Donnell's opinion opinions concurring only in the judgment doesn't indicate any dissatisfaction with any aspect of the plurality opinion; in fact, it doesn't even reference it. But let's assume that Johnson's first prong doesn't set forth a viable test, because it's only a plurality. A test is needed. We don't have Rance's "abstract elements" test anymore. If Johnson doesn't set forth the test, what does?
I'm not sure that's important. Remember where I said that conduct was now the focal issue? I think you could make a good argument that it's the only issue. Once you get away from the "abstract elements" analysis, the question is whether the defendant committed two crimes with the same act. Johnson's test, and the pre-Rance tests, focused the first prong on whether it was possible to commit two crimes with the same act. But if the defendant did commit the offenses with the same act, it follows that the offenses could be committed with the same conduct, and so if the second prong is satisfied, the first is, too. In short, the first prong is subsumed in the second.
What I do expect we'll see from the court -- and what we need -- is some guidance on what exactly constitutes the "same conduct." When someone breaks into a house and robs and beats the homeowner, is that just one continuous act -- burglary to robbery to felonious assault -- that can be considered allied offenses? Or does the burglary become complete, and thus a separate offense, when entry to the house is gained? That's where the real arguments are, and that's where I'd expect the court to pull in the reins a bit in future cases.