Allied and predicate offenses
Angela Moulton had a pretty good gig going, even if not a particularly creative one. She stole people's mail, applied for credit cards in their name, and used the bogus cards to purchase over $14,000 worth of luxury items. That resulted in an 80-count indictment, to which she pled no contest and was sentenced to 10 years in prison. Last week, in State v. Moulton, the 8th District rejected her contention that she could only be sentenced on one count.
One count? How'd she come up with that?
The first count of Moulton's indictment alleged engaging in corrupt activities. That's Ohio's counterpart to the Federal RICO statute, which targets criminal enterprises. Basically, the offense is committed when an "enterprise" -- two or more people --engages in a pattern of crimes. The other 79 counts in Moulton's indictment pertained to those crimes; in legal parlance, they're the "predicate offenses" to the corrupt activities count. Moulton's argument was simple: since she could not have committed the corrupt activities offense without committing the predicate offenses, the latter merged into the former to create a single count for which she could be sentenced.
That's not as farfetched as it might seem. It was based largely on the Supreme Court's decision last year in State v. Williams (discussed here), which held that felonious assault and attempted murder merged, because one couldn't commit attempted murder without also committing a felonious assault.
Oddly enough, Williams was the one decision that the Moulton court didn't mention in its sojourn through allied offense jurisprudence. The old favorites, Rance and Cabrales, were there, and there were also cameos by State v. Brown and State v. Winn. In Brown (discussed here), the Supreme Court had decided that the two forms of aggravated assault -- one for using a deadly weapon, and one for causing serious physical harm -- merged, because the legislative intent was to prevent physical harm to persons; even though various forms of accomplishing that were set forth in the statute, the intent was to impose only a single punishment for that.
Brown prompted a flurry of cases in which the lower courts attempted to divine what "societal interest" the legislature had sought to protect in passing a particular statute; indeed, many decided that Brown had created a new test for allied offenses:
By asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes.
This led the 8th District to conclude in State v. Mosley that the Brown court "illuminated that the [Rance] two-tiered test is merely a tool, not a requirement, used to determine the legislature’s intentions regarding whether to permit cumulative sentencing.” The hooplah dissipated when the court came out with Winn(discussed here), deciding by a single vote that kidnapping merged with aggravated robbery, but with nary a word about "societal interests."
The conclusion in Winn was actually based upon pre-Rance law, that two offenses merge if it's impossible to commit one without committing the other. (Here, since aggravated robbery involved some restraint of the victim, one couldn't commit that crime without also committing kidnapping.) Williams seemed the logical extension of that, but with a twist: while all the other allied offense cases involved two offenses which were different, but on an equal plane, Williams involved predicate offenses, at least in regard to the second count of attempted murder, the so-called "felony murder": killing someone while in the commission of a crime of violence. You can't commit felony murder without committing the underlying felony, so the argument goes, and so the two merge.
That was Moulton's argument as well: she couldn't have been convicted of engaging in a pattern of corrupt activity without committing the crimes that formed the pattern, and thus the predicate crimes merged into the corrupt activity count. The court rejected it, relying on Brown's "societal interest" test: the interest in protecting records the integrity of records (most of the underlying charges against Moulton were tampering with records) was distinct from the interest in protecting society against organized criminal activity, and so a person could be punished for both.
I don't have much problem with the result. I think there's some merit to the predicate-offense-merger theory; I think you can make a valid argument, as the court did in Winn, that felony murder and the underlying offense merge. The problem with Moulton's argument in this case is the sheer number of predicate offenses. In Winn, there was only one predicate offense, and you could make the argument that the legislature might have intended for felonious assault, or some other violent felony, to be subsumed into the murder charge. Murder is punishable by 15 to life, while felonious assault is a second degree felony, punishable by 2 to 8 years; the argument thus might be that the legislature believed that the substantially greater punishment for a "successful" felonious assault warranted disregarding the punishment for the underlying offense. That's a much harder sell in Moulton's case. Her argument boils down to the contention that once you engage in a pattern of corrupt activity, it doesn't matter how many offenses you commit; in Moulton's view, her penalty would've been capped at 8 years, the maximum for a corrupt activities charge (it's ten years if any of the underlying offenses are first degree felonies), regardless of whether she'd committed 8, 80, or 800 predicate offenses.
Still, the predicate offense merger theory has some legs. Williams gives some support to it, and the upcoming decision in State v. Johnson might give some more. Johnson involves the question of whether a conviction for felony murder where the underlying crime is child endangering merges with the child endangering count. The 1st District, relying on Brown, had held that the two statutes protected different "societal interests," and thus didn't merge. My take on the oral argument (discussed here) is that the Supreme Court's going to come to a contrary conclusion.
Not that that's going to do Angela Moulton any good.
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