THE STATE OF OHIO, APPELLEE, v. HARRIS, APPELLANT.
No. 2007-1812
Supreme Court of Ohio
Submitted January 13, 2009—Decided July 7, 2009.
122 Ohio St.3d 373, 2009-Ohio-3323
I. Introduction
{¶ 1} There are two issues before the court. The first is whether robbery under
II. Facts
{¶ 2} James Lawrence, Dwight Lawrence, and Demon Meatchem were smoking marijuana and playing dominos at James Lawrence‘s apartment. Evander Kelly, a friend of the Lawrence brothers, and Harris decided to stop by James‘s apartment. Kelly spoke to the dominos players while Harris went to the bathroom. When Harris returned from the bathroom, he was holding a gun. Harris struck Dwight Lawrence in the back of the head with the gun and ordered him, his brother James, and Meatchem to lie face down on the bed while he stole their money, cell phones, videos, and compact disks.
{¶ 3} Fearing that he was going to be shot, Meatchem charged Harris and knocked the gun out of his hands. Kelly picked up the gun and fired four rounds. The first round was aimed at James Lawrence, but it missed. The next three rounds were aimed at Meatchem and Dwight Lawrence, who were struggling with Harris. Two of the rounds struck Meatchem, and one struck Dwight Lawrence. Harris and Kelly then fled the apartment.
{¶ 4} A grand jury indicted Harris on three counts of aggravated robbery in violation of
{¶ 5} A jury found Harris guilty on all counts and all specifications. The court imposed prison terms for each offense and ordered that they be served consecutively. The court of appeals affirmed the judgment of the trial court.
{¶ 6} We accepted Harris‘s discretionary appeal, in which he asserts that aggravated robbery and robbery are allied offenses of similar import and that a defendant cannot be convicted of both offenses if the charges originate from the same conduct. Harris also asserts that a defendant may not be convicted of two counts of felonious assault charged pursuant to
III. Analysis
A. R.C. 2941.25
{¶ 7} Ohio‘s multiple-count statute,
{¶ 8} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may
{¶ 9} “(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 the defendant may be convicted of all of them.”
{¶ 10} This court has interpreted
{¶ 11} In State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, paragraph one of the syllabus, we held that “[u]nder an
{¶ 12} However, some courts interpreted Rance to require a strict textual comparison of the elements of the compared offenses under
{¶ 13} Accordingly, in Cabrales we held that even though the elements of possession of a controlled substance under
{¶ 14} Having reviewed Cabrales‘s clarification of Rance, we now examine the offenses at issue in this case.
B. Robbery and Aggravated Robbery
{¶ 15} Each count of robbery herein was charged under
{¶ 16} In State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, we applied Cabrales to determine whether kidnapping defined in
{¶ 17} Similar reasoning applies when comparing robbery and aggravated robbery. The possession of a deadly weapon, used, shown, brandished, or made known to the victim during a theft or flight from a theft also constitutes a threat to inflict physical harm on that victim. Thus, robbery defined in
C. Felonious Assault: R.C. 2903.11(A)(1) and (A)(2)
{¶ 18} In State v. Cotton (June 20, 2007), Hamilton App. No. C-060264, the defendant stabbed one victim, three times. He was convicted of felonious assault under
{¶ 19} We reversed the judgment of the court of appeals in Cotton on the authority of State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149,1 holding that felonious assaults in violation of
{¶ 20} On the authority of Cotton, we affirm that convictions for felonious assault defined in
D. Merger
{¶ 21} Two allied offenses of similar import must be merged into a single conviction. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 42. In merging two allied offenses of similar import, we have held: “An accused may be tried for both but may be convicted and sentenced for only one. The choice is given to the prosecution to pursue one offense or the other, and it is plainly the intent of the General Assembly that the election may be of either offense.” (Emphasis added.) Maumee v. Geiger (1976), 45 Ohio St.2d 238, 244, 74 O.O.2d 380, 344 N.E.2d 133.
{¶ 22} A final judgment of conviction occurs when the judgment contains “(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus.
{¶ 23} In light of Baker, we hold that Geiger requires the prosecution to elect which offense it will pursue after a finding of guilt but prior to sentencing.
{¶ 24} Harris was convicted on three counts of robbery and three counts of aggravated robbery against Dwight Lawrence, James Lawrence, and Demon Meatchem. Because all six offenses were committed simultaneously, we hold that all were committed with the same animus. Thus, the six convictions for robbery and aggravated robbery must be merged into a total of three convictions for robbery or aggravated robbery against the three victims, to be determined by the state on remand.
{¶ 25} Harris was also convicted on one count of felonious assault under
{¶ 26} Finally, Harris was convicted on two counts of felonious assault under
{¶ 27} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for proceedings consistent with our opinion.
Judgment reversed and cause remanded.
O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
MOYER, C.J., and PFEIFER and LANZINGER, JJ., concur in part and dissent in part.
CUPP, J., concurring.
{¶ 28} I continue to have serious concern with the majority‘s reliance upon State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154. I joined the dissent in Winn because I believed that the majority‘s gloss on State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, was likely to generate
{¶ 29} The dissent in Winn pointed out that applying the Cabrales test still required that “‘if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ (Emphasis added.)” State v. Winn at ¶ 27 (Moyer, C.J., dissenting), quoting State v. Cabrales at ¶ 26. As the Chief Justice‘s dissent noted, the Winn majority opinion amounted to “a rewriting of the Cabrales test,” and “[i]nstead of requiring that the commission of one offense necessarily results in the commission of the other, the [Winn opinion] requires that the commission of one offense probably results in the commission of the other.” (Emphasis sic.) State v. Winn at ¶ 32, 33. Winn, in my view, introduced an element of probability into an already difficult-to-apply test involving a reasoned search for hypotheticals.
{¶ 30} While the Cabrales test looked to the language of the statutes at issue to determine whether commission of one offense necessarily resulted in commission of the other offense, Winn requires a subjective determination about when hypothetical alternative ways of committing a crime are so unlikely to occur that they are improbable and, therefore, insufficient to defeat a conclusion that the crimes are allied offenses under
{¶ 31} In this case, comparing the elements of the aggravated robbery and robbery statutes at issue, committing aggravated robbery under
{¶ 32} Because Winn garnered the support of a majority of this court for its holding, it is now the controlling law on this issue. Only case-by-case experience, as courts attempt to apply the decision in Winn, will determine whether it was a wise decision. But until experience sheds its guiding light, I am bound by the principle of stare decisis. Therefore, I reluctantly concur.
O‘CONNOR, J., concurs in the foregoing opinion.
{¶ 33} I agree with the majority that robbery under
{¶ 34} I dissent from the majority‘s conclusion that the case must be remanded to the trial court for a determination of whether the state charged Harris with striking Dwight Lawrence with the gun as part of the robbery or whether the striking with the gun and the later shooting of Dwight Lawrence were separately charged as assaults.
{¶ 35} The majority asserts that it is unclear from the record and jury instructions whether the state charged Harris with felonious assault resulting from his striking of Dwight Lawrence. To the contrary, in the state‘s closing argument at trial, it sought convictions for felonious assault only for the shootings. The state mentioned Harris‘s act of striking Dwight Lawrence in the head only in the context of the charges of aggravated robbery. Later in the closing argument, the state transitioned into a discussion of the charges of felonious assault, stating, “Moving down to the felonious assaults, that‘s where the shootings come in.” The state asserted that each shot that was fired and hit a victim was sufficient to support convictions for felonious assault under both
{¶ 36} For these reasons, I concur in the syllabus of the court and the majority‘s conclusions concerning the merger of the robbery and aggravated robbery counts and the merger of the two counts of felonious assault involving Meatchem. I dissent to the extent that the majority does not merge the two counts of felonious assault involving Dwight Lawrence.
MOYER, C.J., and PFEIFER, J., concur in the foregoing opinion.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael Keeling, Assistant Prosecuting Attorney, for appellee.
Theresa G. Haire, Assistant Public Defender, for appellant.