State v. WashingtonState v. Washington
Dated: July 21, 2010
CARR, Judge.
{¶1} Appellant, Jimmie Washington, appeals his conviction out of the Summit County Court of Common Pleas. This Court affirms, in part, and reverses, in part.
I.
{¶2} On April 21, 2009, Washington was indicted on one count of aggravated robbery in violation of
{¶3} On July 6, 2009, Washington filed a motion to dismiss the indictment based on alleged defects in the indictment and because he was denied a preliminary hearing within ten days of his arrest. The trial court heard the arguments of counsel prior to trial, and then denied the motion to dismiss the indictment.
{¶5} At the conclusion of trial, the jury found Washington guilty of aggravated robbery and theft. The trial court sentenced Washington to four years in prison for aggravated robbery and to twelve months incarceration for theft, with those sentences to be served concurrently. Washington appealed, raising two assignments of error for review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE COURT PERMITTED THE STATE TO AMEND THE INDICTMENT PRIOR TO THE START OF TRIAL.”
{¶6} Washington argues that the trial court erred by allowing the State to amend the charge of grand theft, a felony of the fourth degree, to theft, a felony of the fifth degree. This Court disagrees.
{¶7} Washington was indicted on a charge of grand theft in violation of
“Whoever violates this section is guilty of theft. *** If the value of the property or services stolen is five hundred dollars or more and is less than five thousand dollars ***, a violation of this section is theft, a felony of the fifth degree. If the value of the property or services stolen is five thousand dollars or more and is less than one hundred thousand dollars, a violation of this section is grand theft, a felony of the fourth degree.”
{¶9} This Court recently stated that we read the high court‘s ruling in Davis “in concert with its rulings which have interpreted
{¶10}
“The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.”
“The defendant may be found not guilty of the offense charged but guilty of an attempt to commit it if such an attempt is an offense at law. When the indictment, information, or complaint charges an offense including degrees, or if lesser offenses are included within the offense charged, the defendant may be found not guilty of the degree charged but guilty of an inferior degree thereof, or of a lesser included offense.”
{¶12} In interpreting
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN SENTENCING APPELLANT ON BOTH THE ROBBERY AND THEFT COUNTS AS THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶13} Washington argues that the trial court erred by sentencing him for both aggravated robbery and theft. The State concedes error. This Court agrees.
{¶14}
“In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant‘s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.” (Emphasis omitted.) Id., citing State v. Mughni (1987), 33 Ohio St.3d 65, 67; State v. Talley (1985), 18 Ohio St.3d 152, 153-154; State v. Mitchell (1983), 6 Ohio St.3d 416, 418; State v. Logan (1979), 60 Ohio St.2d 126, 128.
Moreover,
“[i]n determining whether offenses are allied offenses of similar import under
R.C. 2945.25(A) , courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. 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 imports.” State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, paragraph one of the syllabus.
{¶15} Washington was convicted of aggravated robbery in violation of
III.
{¶17} Washington‘s first assignment of error is overruled. His second assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed, in part, reversed, in part, and the cause remanded for further proceedings consistent with this opinion.
Judgment affirmed, in part, reversed, in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to both parties equally.
DONNA J. CARR
FOR THE COURT
MOORE, J. CONCURS
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY
APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.