The Supreme Court clarifies allied offenses
Kenneth Ruff was charged with aggravated burglary and the rape of three women. DNA evidence foreclosed the contention that he wasn't the one who did it, leaving him with only the argument that the sex had been consensual. That was a tough sell, given that the three women were a 74-year-old, one living in a group home because of mental illness, and a diabetic who used a wheelchair because her feet had to be amputated due to the disease. His trial resulted in the inevitable conviction, and the judge ran each of the rape charges consecutive to the aggravated burglary, for a total of 40 years.
The 1st District vacated the sentence and sent it back, finding that the aggravated burglary and the rapes were allied offenses: the aggravated burglary was indicted under the "causing serious physical harm" subsection, and that wasn't complete until the rapes had occurred, so the two offenses were committed by the same conduct. The Supreme Court decided this would be a good opportunity to clarify the "same conduct" test it announced in 2010 in State v. Johnson, and yesterday, in State v. Ruff, it did just that.
If only.
The opinion begins by tracing the evolution of Ohio's allied offenses law, a journey beginning with Ohio's statute, RC 2941.25, which has never been amended since its passage in 1974. The early cases held that if the elements of the two offenses were similar, and the facts showed the same conduct was used to commit both, they were allied and would be merged for sentencing. The journey detoured into the wilderness with the 1999 decision in State v. Rance, which held that in comparing the elements, the actual facts were ignored: regardless of what the defendant did, if an abstract comparison of the elements showed it was possible to commit both offenses separately, then they weren't allied.
As the discerning reader will note, this is pretty dumb. Of course it is possible to commit two separate offenses, because that's why they're separate offenses. The court acknowledged that Rance had resulted in "inconsistent, unreasonable, and, at times, absurd results" in a 2008 decision, but, like a legal version of Weekend at Bernie's, dragged Rance's rotting corpse around for another two years before finally jettisoning it in State v. Johnson, which returned the focus to the defendant's conduct.
So here we are now, with the State arguing that the court has to consider whether the offenses are of the same "family"; aggravated burglary and rape aren't, the state contends, because the first is a crime against property, and the second a crime against the person. Ruff's position is the same as the 1st District's.
So which one does the court choose? Neither, deciding instead that Johnson was incomplete because it failed to address the question of when the offenses were of dissimilar import.
How's that? Go back to the statute. The (A) section says a person can't be convicted of both offenses if they're of similar import, and the (B) section says that the person can be convicted of both if his conduct "constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each."
But saying that crimes aren't similar if they're dissimilar is a tautology. Nor is the court's observation that "when a defendant's conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts" very helpful; it's long been recognized that separate victims creates a separate animus, and the defendant can be punished for each.
Here's the money quote:
A defendant's conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
From this, the court analyzes the two offenses in the context of the facts of the case, determines that the harm from each offense is separate and identifiable, and creates a bright-line rule that burglary and rape -- or robbery or felonious assault or murder or whatever -- are dissimilar offenses.
If only.
In fact, the court never answers the question, declining "to create an absolute rule," and kicks it back to the 1st District "to consider whether the import of the aggravated burglary and the import of the rape were similar or dissimilar in each of the three separate events." It then does nothing more than restate the statute:
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation?
The opinion concludes that "this analysis may be sometimes difficult to perform." Yeah, there's that...
The basic problem with Ruff is that it introduces a new factor into the allied offense calculus -- whether "the harm that results from each offense is separate and identifiable" -- without offering a clue as to how anyone's supposed to make that determination. Obviously, you could make the argument that the harm of two offenses is always separate and identifiable; again, that's why they're separate offenses.
Johnson raised some problems, too, sparked largely by the fact that it was only a plurality opinion. It's been a lot easier in its application than Rance ever was, though, and any clarification that it needed certainly wasn't provided by Ruff.