Another look at Ruff
This is my 2,040th post on this blog since I started it in May of 2006, and sometimes I think about half of them have been about the law on allied offenses. You can get the gist of them, minus the snark, by reading the 8th District's decision last week in State v. Anthony.
Anthony got into an argument with a friend, who became an ex-friend when Anthony stabbed him four times and he died. Anthony wound up pleading to involuntary manslaughter and felonious assault. At the plea hearing, his lawyer said the offenses merged, but the prosecutor indicated no agreement on that. The judge said the offenses "certainly appeared" to be allied offenses, but changed his mind by the time of sentencing: he gave Anthony eleven years on the involuntary manslaughter and two on the felonious assault, and ran them consecutively.
This should be an easy one. In its 2010 decision in State v. Johnson, the Supreme Court was presented with a fairly similar situation: Johnson had beaten his son to death, which resulted in convictions for felony murder - causing death as a proximate result of committing another felony -- and child endangering, the latter offense providing the "felony" for the former. The Supreme Court held that the two merged, as the opinion explained, because they were committed with the same conduct.
But it wasn't a majority opinion. While all seven justices agreed in the syllabus that "when determining whether two offenses are allied offenses of similar import, the conduct of the accused must be considered" - which is pretty much self-evident, since that's exactly what the statute, RC 2941.25, says - only two signed on for momentary Chief Justice Eric Brown's opinion detailing how the defendant's conduct was pretty much the be-all and end-all for allied offense analysis.
And that should pretty much be the end of it. But it's not, because there have been several Supreme Court decisions since Johnson, and two in particular bear upon the resolution of Anthony.
The first is State v. Miranda, which presented the question of whether a conviction under Ohio's Corrupt Practices Act merged with the two predicate acts required for conviction of the OCPA count. The court decided that they didn't, and rightly so: as the majority, the legislature clearly intended to punish both. (How "clear" that was is, well, unclear; as I pointed out at the time, you don't find anything in the statute to that effect, but the majority opinion cites a bunch of other cases where courts said the majority clearly intended that, so that's good enough for government work.)
But three judges concurred only in judgment, and Justice Lanzberger's opinion for the three focused not on the question of whether the offenses were of similar import, but whether they were of dissimilar import. That's a question she echoed in writing the majority opinion in State v. Ruff, the court's latest pronouncement on allied offenses.
There's some basis for that. The (A) section of the statute says that 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." But what does "dissimilar import" mean? In Ruff, the court concluded that it meant whether "the harm that results from each offense is separate and identifiable."
When I discussed Ruff, I criticized it for not "offering a clue as to how anyone is supposed to make that determination," a failure made all the more troublesome by the court's decision not to determine it in Ruff's case, but to kick the whole thing back to the 1st District. (Why the court chose this route, when it had all the facts the 1st District did, is a mystery.) The Anthony majority notes that "it would have been helpful" had the Supreme Court provided more guidance, then essentially dispenses with the whole issue, deciding that Ruff really "directs that '[r]ather than compare the elements of two offenses to determine whether they are allied offenses of similar import,' we must 'focus on [Anthony's] conduct.'"
I think that's a rather strained interpretation of Ruff, but the result the majority comes to - that the offenses merge here - is probably the correct one, at least in keeping with Johnson. There's really no distinction between the two cases on the facts: if Johnson's child endangering should have merged with the felony murder, it's hard to see why Anthony's felonious assault shouldn't merge with the involuntary manslaughter - both were committed with the same conduct.
But Anthony's a relatively easy case involving a predicate offense. What happens when you get the Ruff situation, where there are two separate offenses, like rape and burglary? Or if the predicate offense isn't so inextricably linked to the higher crime, like aggravated robbery and felony murder? In the latter situation, the 8th has tended to frame the analysis in terms of whether the force used to commit the murder was in excess of that necessary to complete the robbery. The dissent in Anthony points out the same problem I've noted with that: the force will always be in excess. You don't need to kill somebody to rob them.
The Anthony dissent also makes an interesting argument, contending that involuntary manslaughter (or felony murder) is not a conduct-based crime, but a result-based crime "solely dependent upon the commission of a separate predicate offense." The distinction is an analytic one; I haven't seen any case law supporting it. But the dissent is on-point in characterizing the problem here: if the courts are going to follow the "excess force" line, the predicate offense is never going to merge, and if they follow the conduct-based line, the predicate offense is always going to merge.
How this winds up is anybody's case, but Anthony clearly demonstrates that Ruff, rather than clarifying allied offense law, probably muddied it up further.