R. C. 2941.25 provides, as follows:
“(A) Where the same conduct by defendant can be construed to constitute two or more aided offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be cоn-victéd of only one.
“(B) Where the defendant’s 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, the indictment or information may contain counts for all such offenses, and thе defendant may be convicted of all of them.”
The issue raised by the state in this appeal is whether the offеnse of aggravated robbery, committed in violation of R. 0. 2911.01(A) (2), and the crime of aggravated burglary, a violation of R. 0. 2911.11(A)(3), constitute “allied offenses of similar import” within the meaning, of R. C. 2941.25(A), or whether these offenses are similar but, under the facts of this cause, were committed separately or with a. separate animus, within the contemplation of R. C. 2941 .- 25(B). If the crimes are of similar import, the defendant is entitled to have one conviction set aside. See State v. Osborne (1976),
The aggravated robbery statute, R. 0. 2911.01, provides, in relevant part, as follows:
“(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
*255 “ (2) Inflict, or attempt to inflict serious physical harm on another.”
The aggravated burglary statute, R. C. 2911.11 provides, in pertinent part, as follows:
“(A) No person, by force, stealth, or deception, shall trespass in аn occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured оr separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:
í Í # # *
“(3) The occuрied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.”
The defendant contends that because the aggravated robbery and burglary statutes are in the same chapter of the Revised Code and because! both incorporate theft offenses, they are necessarily ’'‘allied offenses of similar import.” In support of this contention the defendant argues essentially that which the Court of Appeals found, i. e., “to uphold appellant’s conviction and sentence on both charges would impose double punishment for one transaction carried out with а single intent. According to the evidence adduced at trial defendant’s entry into the Dorr residence and the infliсtion of harm to Mrs. Dorr occurred almost simultaneously, and both the entry and the force used against Mrs. Dorr had to be carried out for the same purpose — to commit a theft offense inside the home. On the facts of this case * * * it [isl impossible to separate the aggravated burglary from the aggravated robbery with reference either to the time committed or to the animus required. ” ■
We do not agree. Assuming, argvendo, that the defendant’s actions in this cause constitute “allied offenses of similar import” within the contemplation of R. C. 2941.25 (A), a conclusion certainly not deducible merely by the рroximity of the statutes in issue, R. C. 2941.25(B) nevertheless carves an exception to division (A) of the sam,e statute for cоnduct resulting, in “two or more offenses of
The robbery' and the burglary were committed separately. When the defendant fоrced the victims’ door open with intent to assault Mrs. .Dorr and take the victims’ property, intentions fairly attributable tо the defendant from the record, the burglary was completed. Whether an intended felony was committed is irrelevant to the burglary charge. (See Boyer v. Maxwell (1963),
Judgment reversed.
Notes
This court has considered the substantive content of R. C. 2941.25 in two prior decisions: State v. Donald (1979),