THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
No. 2009-1481
Supreme Court of Ohio
December 29, 2010
128 Ohio St.3d 153, 2010-Ohio-6314
BROWN, C.J.
Submitted May 11, 2009
Brindza, McIntyre & Seed, L.L.P., David H. Seed, and Jennifer A. Hoehnen, for appellee Akron City School District Board of Education.
[Cite as State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.]
(No. 2009-1481—Submitted May 11, 2009—Decided December 29, 2010.)
BROWN, C.J.
I. Certified Issue
{¶1} The First District Court of Appeals certified the following issue pursuant to
{¶2} We answer the certified question in the affirmative in this case and reverse the judgment of the court of appeals.
{¶3} Fred Johnson, appellant, beat seven-year-old Milton Baker to death. A jury found Johnson guilty of various crimes based upon his violence against Milton. Two of those crimes are relevant to this appeal: felony murder under
{¶4} Johnson claims that the trial court should have merged the felony-murder conviction and the child-endangering conviction under
{¶5} The court of appeals recognized that its holding on this issue was in conflict with a decision of the Fifth District Court of Appeals in State v. Mills, Tuscarawas App. No. 2007 AP 07 0039, 2009-Ohio-1849, 2009 WL 1041441. Mills was convicted of felony murder under
{¶6} The court of appeals certified the conflict between its decision in this case and the decision in Mills. We recognized the conflict. State v. Johnson, 123 Ohio St.3d 1405, 2009-Ohio-5031, 914 N.E.2d 203.
III. Analysis
A. Introduction
{¶7} This case is yet another example “of how difficult our jurisprudence on allied offenses has become.” State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 29 (Lanzinger, J., concurring in part and dissenting in part). Once again, we are presented with two offenses and asked whether they are allied offenses that merge according to
{¶8} In 1999, when we decided State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, we intended to create a test of ready application that would produce clear, predictable results with regard to allied offenses. Id. at 636. Unfortunately, the standard announced in Rance has proven difficult to apply. We take this opportunity to overrule Rance. In doing so, we return to the mandate of
{¶9} We hold that Johnson‘s two offenses were allied under
B. The history of the allied-offenses analysis
1. The law of allied offenses prior to State v. Rance
{¶10} We laid the groundwork for analysis of allied offenses in State v. Botta (1971), 27 Ohio St.2d 196, 56 O.O.2d 119, 271 N.E.2d 776. In Botta, we explained that a jury could find that a defendant had committed multiple offenses from a single occurrence when “all the essential elements of fact as to both offenses had been proved.” Id. at 202. This preserved the integrity of the jury‘s fact-finding role. Id. at 204. But we held that as a matter of law, once the jury returned its verdicts, the court could sentence only as to one offense and would have to dismiss the other. Id. We held that a person could commit several distinct and independent crimes “at the same time and in the same transaction,” yet when “in substance and effect but one offense has been committed,” the court could sentence on only one offense and must dismiss the other. Id. at 202-203.
{¶11} The reasoning of Botta was based upon the concept of “merger,” described as “the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.” Id. at 201.
{¶12} In 1972, the General Assembly enacted
{¶13}
{¶14} “(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 contain counts for all such offenses, but the defendant may be convicted of only one.
{¶15} “(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
{¶16}
{¶17} In 1976, we discussed the recently enacted
{¶18} In 1979, we surveyed the cases applying
{¶19} “[I]n order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other.
{¶20} “In addition * * *, the defendant, in order to obtain the protection of
{¶22} Several years later, we summarized the then-familiar Logan two-step approach to
{¶23} The concurring opinion in Blankenship explained that in the first step, a court determines “whether the nature of the elements of the offenses is such that in some instances they may overlap, that is, that in certain instances, both crimes may be committed by the same conduct,” and that the second step “is based upon the conduct involved in a particular case, and the issue is whether in fact both offenses were committed by the same conduct.” Id. at 119 (Whiteside, J., concurring) (adding that the third step of the analysis concerned the defendant‘s animus).
{¶24} In Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83, 549 N.E.2d 520, we performed the Blankenship allied-offenses analysis perfunctorily, focusing simply on whether the elements of the offenses overlapped based upon the defendant‘s conduct in that case. We were not compelled to compare the elements of the offenses in the abstract, but instead simply held that “the elements of these two crimes are so similar that the commission of one offense necessarily results in the commission of the other as applied to the facts of this case.” (Emphasis added.) Id. It is this analysis—the evaluation of separate offenses based upon the facts of the case—that the court took issue with in State v. Rance, 85 Ohio St.3d at 637-638.
2. State v. Rance
{¶25} In State v. Rance, we took stock of the jurisprudence regarding the analysis of allied offenses under
{¶26} In Rance, we held that the General Assembly provided
{¶27} We held that the applicable test was stated in Blankenship. Rance, 85 Ohio St.3d at 636. Yet we found that there was a problem inherent in the Blankenship standard: it was unclear whether, under step one, courts “should contrast the statutory elements in the abstract or consider the particular facts of the case.” Id. We determined that we should “settle this issue for Ohio courts, and we believe[d] that comparison of the statutory elements in the abstract is the more functional test, producing ‘clear legal lines capable of application in particular cases.‘” Id., quoting Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238. In so holding we overruled the approach of Newark v. Vazirani, 48 Ohio St.3d 81, 549 N.E.2d 520, wherein the elements of offenses were evaluated on the facts of the case to determine whether the crimes were allied. Rance at 638.
3. The allied-offenses analysis after State v. Rance
{¶28} Cases following Rance have demonstrated both the difficulty in applying the ethereal “in the abstract” analysis and the absurd results that would result from strict adherence to it. In order to prevent injustice and to avoid absurd results, the cases following Rance have suffered ad hoc revisions and workarounds to the Rance standard.
{¶29} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 20, we acknowledged that “[d]espite trying to define a test ‘capable of application in particular cases,’ Rance has produced inconsistent, unreasonable, and, at times, absurd results.” We noted a few examples of the problems that courts of appeals were having with the Rance analysis. For instance, the Fourth District Court of Appeals had stated, “‘[W]e are aware of the practical result of our conclusion: [the defendant] stands convicted of both creating a substantial risk of physical harm and causing the death of [the victim] based on one occurrence. * * * “[T]his result seems intuitively wrong, [but] the Supreme Court‘s holding in Rance forces us to affirm.“‘” Id. at ¶ 19, quoting State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935, 2003 WL 1889479, quoting State v. Shinn (June 14, 2000), Washington App. Nos. 99CA29 and 99CA35, 2000 WL 781106.
{¶31} Ultimately, to avoid the attendant absurd consequences of a strict application of the Rance standard, we held that the allied-offenses analysis “does not require an exact alignment of elements” or “strict textual comparison.” Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶ 26-27. “Instead, 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.” Id. at ¶ 26. Thus, we explicitly abandoned the rigid framework of an allied-offenses analysis based upon exact alignment of the elements of a criminal offense, yet we held that the offenses must be so similar that commission of one would necessarily result in the commission of the other. Id.
{¶32} Cabrales modified the Rance analysis; however, the Cabrales standard failed to prevent the absurd results that obtained from comparing crimes in the abstract.
{¶33} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, we announced what Chief Justice Moyer later described as a preemptive exception to the Rance/Cabrales analysis to prevent just such an absurd result. State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶ 39 (Moyer, C.J., dissenting).
{¶34} In Brown, the defendant stabbed her boyfriend once in the abdomen. She was convicted of two forms of felonious assault, one for a use of deadly weapon and one for causing serious bodily harm. Deadly-weapon felonious assault requires the use of a deadly weapon, but not serious bodily harm, whereas the serious-physical-harm felonious-assault offense requires serious physical harm, but no deadly weapon.
{¶35} While acknowledging the Cabrales/Rance standard in Brown, we declined to apply it. 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 1Id. at ¶ 39-40R.C. 2941.25 analysis required by Rance/Cabrales “when the legislature‘s intent is clear from the language of the statute.” Id. at ¶ 37.
{¶36} This end-run around the existing allied-offenses analysis would not be the last attempt at modifying the standard in order to prevent absurd results.
{¶37} In State v. Winn, we again modified the allied-offenses analysis—this time to do away with the requirement in Cabrales that the commission of one crime would “necessarily” result in the commission of the other—by holding, as Chief Justice Moyer characterized the holding in dissent, that it was enough if the commission of one crime would “probably” result in the commission of the other. 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶ 32-33 (Moyer, C.J., dissenting).
{¶38} In Winn, we held that kidnapping and aggravated robbery were allied offenses. Id. at ¶ 21. Although it was possible to advance hypothetical examples under which an aggravated robbery would not also constitute a kidnapping, the majority held that the elements of the offenses aligned because “[i]t is difficult to see how the presence of a weapon that has been shown or used, or whose possession has been made known to the victim during the commission of a theft offense, does not also forcibly restrain the liberty of another.” Id. In dissent, Chief Justice Moyer sharply criticized this holding. Id. at ¶ 33-34. The chief justice argued that the majority had ignored Cabrales‘s instruction 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.) Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 26.” Id. at ¶ 27. The chief justice explained that the majority had changed the allied-offenses standard again: “Instead of requiring that the commission of one offense necessarily results in the commission of the other, the majority requires that the commission of one offense probably results in the commission of the other. * * * The unworkability of this standard is apparent. Trial courts will have little guidance in determining when two offenses are similar enough that they should be merged as allied offenses.” (Emphasis sic.) Id. at ¶ 33.
{¶40} In summary, this court has gone to great efforts to salvage the Rance standard. We have modified it and created exceptions to it in order to avoid its attendant absurd results. However, our allied-offenses jurisprudence has suffered as a consequence. Our cases currently (1) require that a trial court align the elements of the offenses in the abstract—but not too exactly (Cabrales), (2) permit trial courts to make subjective determinations about the probability that two crimes will occur from the same conduct (Winn), (3) instruct trial courts to determine preemptively the intent of the General Assembly outside the method provided by
C. State v. Rance is overruled
{¶41} It is time to return our focus to the plain language and purposes of the merger statute.
{¶42}
{¶43} We have consistently recognized that the purpose of
{¶44} Given the purpose and language of
{¶45} In overruling Rance, we need not apply the test of Westfield v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, because
D. Prospective analysis of allied offenses under R.C. 2941.25
{¶46} In determining whether two offenses should be merged, the intent of the General Assembly is controlling. We determine the General Assembly‘s intent by applying
{¶47} Under {¶48} In determining whether offenses are allied offenses of similar import under {¶49} If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting). {¶50} If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. {¶51} Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to {¶52} We recognize that this analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases. But different results are permissible, given that the statute instructs courts to examine a defendant‘s conduct—an inherently subjective determination. Thus, a scenario might arise as envisioned by the dissent in Winn, in which one court finds that an aggravated robbery can be and was committed without also committing a kidnapping, if, for instance, “a pickpocket points a gun at the victim, but the victim does not know it, and therefore suffers no restraint of his liberty,” while in another case, the court may determine that the commission of an aggravated robbery in that case would also constitute a kidnapping, because “a weapon that has been shown * * * during the commission of a theft offense * * * forcibly restrain[ed] the liberty of another.” Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶ 29 (Moyer, C.J., dissenting) and at ¶ 21. {¶53} Johnson was convicted of felony murder under {¶54} The offenses were based upon the following conduct. In the incident at issue, Johnson was in a room alone with Milton while the boy‘s mother was in a different room watching television. The mother heard Johnson yelling, heard a “thump” or “stomping,” and went to investigate. She found Johnson yelling at Milton for mispronouncing a word while reading, and she observed Johnson push Milton to the floor. The mother left the room. Shortly thereafter, she heard another loud “thump” or “stomp.” When she went to the room, she saw Milton shaking on the floor. Neighbors testified that they had heard the boy crying and {¶55} Milton‘s death was a result of injuries sustained from blunt impact to the head. Medical experts testified as to older injuries indicative of multiple incidents of child abuse. {¶56} We agree with the court of appeals that the state relied upon the same conduct to prove child endangering under {¶57} Johnson‘s beating of Milton constituted child abuse under {¶58} For the foregoing reasons, we answer the certified issue in the affirmative and reverse the judgment of the court of appeals. The case is remanded to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur in the syllabus and judgment. O‘CONNOR, J., concurring in judgment. {¶59} I agree with the majority that the analysis set forth in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, for determining whether two or more offenses are allied offenses of similar import pursuant to {¶60} {¶61} “(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 contain counts for all such offenses, but the defendant may be convicted of only one. {¶62} “(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.” {¶63} Much of the confusion is caused by the statutory terminology “allied offenses of similar import.” Thus, our analysis must begin with an understanding of this term. {¶64} In practice, allied offenses of similar import are simply multiple offenses that arise out of the same criminal conduct and are similar but not identical in the significance of the criminal wrongs committed and the resulting harm. {¶65} Our decisions have described the two features of allied offenses of similar import together, see, e.g., State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 30 (offenses are allied offenses of similar import if commission of the first offense necessarily results in commission of the second). But it may aid understanding to address the statutory terms “allied offenses” and “of similar import” as separate components of the standard in {¶67} Offenses are of “similar import” when the underlying conduct involves similar criminal wrongs and similar resulting harm. {¶68} The question becomes how to determine whether offenses that stem from the same conduct result in offenses of “similar import” within the meaning of {¶69} Because the trial court does not consider a defendant‘s merger argument until after the trier of fact has determined that the defendant is guilty of multiple offenses, the trial court‘s consideration of whether there should be merger is aided by a review of the evidence introduced at trial. {¶70} At trial in this case, the state relied on the same evidence to establish that Johnson‘s conduct—severely beating Milton and causing his death—violated both the child-endangering statute ( {¶71} Accordingly, I concur in the judgment of the majority to reverse and remand for further consideration. PFEIFER and CUPP, JJ., concur in the foregoing opinion. O‘DONNELL, J., concurring separately. {¶72} In this case, the court is presented with the opportunity to reconsider our allied-offenses jurisprudence. I concur in the determination that this court‘s decision in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, should be overruled and agree with the majority that the court‘s current test of comparing the elements of offenses in the abstract when determining whether two or more offenses are allied offenses of similar import has proven unworkable. {¶73} In accordance with the express language of {¶74} {¶75} “(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 contain counts for all such offenses, but the defendant may be convicted of only one. {¶76} “(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.” {¶77} In State v. Rance, the court articulated a new test for determining pursuant to {¶78} Focusing on the elements of an offense in the abstract, without considering the defendant‘s conduct, has proven to be unworkable and has {¶79} Consider the crimes of rape and kidnapping, for example. The elements of the two crimes are different. Rape, as defined in {¶80} Inevitably, every rapist necessarily kidnaps the victim, because the conduct of engaging in sexual conduct by force results in a restraint of the victim‘s liberty. Thus, in those circumstances, the conduct of the defendant can be construed to constitute two offenses—rape and kidnapping—and an indictment may contain counts for each, but the defendant may be convicted of only one. {¶81} In a different factual situation, however, if the state presented evidence that a defendant lured a victim to his home by deception, for example, and then raped that victim, an indictment may contain separate counts for the rape and for the kidnapping. In this hypothetical, different conduct—the luring of the victim by deception and the separate act of rape—results in two offenses being committed separately; therefore, the indictments may contain counts for both offenses and the defendant may be convicted of both.5 See, e.g., State v. Ware (1980), 63 Ohio St.2d 84, 17 O.O.3d 51, 406 N.E.2d 1112 (the defendant could be {¶82} Thus, the one-size-fits-all Rance test directing an abstract comparison of elements failed to consider factual differences in the manner of commission of the offenses because it never factored the conduct of the actor and never allowed two offenses to be allied in some cases but not allied in other cases.6 {¶83} For the reasons stated, I concur in the decision to reverse and remand this matter for further consideration, and I concur in the syllabus. LUNDBERG STRATTON, J., concurs in the foregoing opinion. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R. Cummings, Assistant Prosecuting Attorney, for appellee. Law Offices of Ravert J. Clark and Lindsey R. Gutierrez, for appellant. Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecuting Attorney. Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.E. Application in This Case
IV. Conclusion