THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
No. 2008-2037
Supreme Court of Ohio
Submitted September 16, 2009—Decided January 27, 2010.
[Cite as State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147.]
O‘DONNELL, J.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Robert Kenneth James, Assistant Solicitor, urging reversal for amicus curiae Attorney General of Ohio.
{¶2} The issue presented on this appeal is whether felonious assault and attempted murder are allied offenses of similar import. We hold that (1) felonious assault as defined in
Facts and Procedural History
{¶3} On July 8, 2006, Kevin Williams and his friend Duce drove to a dice game on Gainsboro Avenue in East Cleveland. Williams joined in the game, but began to argue with Bralynn Randall about who owed the other money. As they continued to argue, McKinney and his girlfriend pulled into the driveway of her grandmother‘s house, noticed the dice game, and overheard the argument. Randall told McKinney that the argument was nothing, and McKinney then decided to join the game.
{¶4} Shortly after McKinney arrived, the argument between Williams and Randall escalated. Williams pulled a gun and fired two shots. As McKinney ran, a bullet struck him from behind, fractured his fifth thoracic vertebra, and instantly paralyzed him.
{¶5} While recuperating at his home in September 2006, McKinney viewed a photo array compiled by the East Cleveland Police Department and identified Kevin Williams as the shooter. As a result, a Cuyahoga County grand jury indicted Williams on two counts of felonious assault, two counts of attempted murder with firearm specifications, and one count of having a weapon while under disability.
{¶6} Following trial, a jury returned guilty verdicts on all counts. The court imposed concurrent sentences of six years for each felonious assault, consecutive to a three-year term for the gun specifications. It also imposed concurrent
{¶7} On appeal to the Eighth District Court of Appeals, Williams contended that his convictions on two counts of felonious assault and two counts of attempted murder arose from the same conduct and therefore constituted allied offenses of similar import so that he could be convicted of and sentenced for only one count of attempted murder.
{¶8} The appellate court ruled that felonious assault as charged in count two of the indictment, knowingly causing or attempting to cause physical harm by means of a deadly weapon, should have merged with the attempted-murder charge in count four of the indictment, attempted murder as a proximate result of committing or attempting to commit an offense of violence. State v. Williams, Cuyahoga App. No. 89726, 2008-Ohio-5149, 2008 WL 4447716, ¶ 37.
{¶9} The state moved for reconsideration, asserting that because felonious assault as defined in
{¶10} The appellate court concluded that the specific intent to kill, inferred from Williams‘s use of a weapon, subsumed his intent to cause serious physical harm to McKinney. State v. Williams, Cuyahoga App. No. 89726, 2008-Ohio-5286, 2008 WL 4531946 at ¶ 33. Therefore, it ruled that “the separate counts of felonious assault as conceptually grouped by the state are offenses of similar import to the separate charges of attempted murder.” Id. The court then determined that Williams committed the attempted murders and felonious assaults with a single “purpose, intent and motive,” id. at ¶ 38, and it ruled that the two felonious-assault counts merged into the two attempted-murder counts. Id. After comparing the elements of murder as defined by
{¶11} The state appealed, and this court agreed to consider whether the two counts of felonious assault are allied offenses of the two counts of attempted murder. The state submitted the following proposition of law for our review: “R.C. § 2923.02/2903.02, Attempted Murder, is not an allied offense of similar
{¶12} Our analysis of allied offenses originates in the prohibition against cumulative punishments embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution. United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487, citing North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656. However, both this court and the Supreme Court of the United States have recognized that the Double Jeopardy Clause does not entirely prevent sentencing courts from imposing multiple punishments for the same offense, but rather ” ‘prevent[s] the sentencing court from prescribing greater punishment than the legislature intended.’ ” State v. Rance (1999), 85 Ohio St.3d 632, 635, 710 N.E.2d 699, quoting Missouri v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535, and citing State v. Moss (1982), 69 Ohio St.2d 515, 518, 23 O.O.3d 447, 433 N.E.2d 181. Thus, in determining whether offenses are allied offenses of similar import, a sentencing court determines whether the legislature intended to permit the imposition of multiple punishments for conduct that constitutes multiple criminal offenses.
{¶13} Ohio‘s multiple-count statute,
{¶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 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.”
{¶16} A two-step analysis is required to determine whether two crimes are allied offenses of similar import. See, e.g., State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; Rance, 85 Ohio St.3d at 636, 710 N.E.2d 699. Recently, in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, we stated: “In determining whether offenses are allied offenses of similar import under
{¶17} The state contends that the appellate court considered the specific facts of the case rather than analyzing the elements of the offenses in the abstract. A proper application of Cabrales, it argues, would reveal that neither statutory definition of felonious assault is an allied offense of attempted murder. Further, the state argues that even if these offenses are allied offenses, they remain separately punishable because Williams did not commit them with a single act or animus.
{¶18} Williams contends not only that the two felonious assault counts merge but also that the two attempted-murder counts merge. He maintains that he can be convicted of only one count of attempted murder in violation of
{¶19} Alternatively, Williams urges us to reconsider our allied-offense analysis, suggesting that if the statutory elements of multiple offenses can be satisfied by the same conduct, we should hold that those offenses are allied offenses of similar import. Such an analysis would create an irrebuttable presumption that the legislature intended an offender to receive a single punishment when a prohibited act constitutes more than one offense. We do not presume that intent, and we reject this position.
{¶20} Our analysis of this case requires us to apply Cabrales. In our application of that test to this case, we recognize that the indictment charged Williams with two counts of attempted murder and two counts of felonious assault arising out of two separate gunshots he fired at McKinney. Counts two and three correlate to the bullet that did not strike McKinney and charge Williams with knowingly attempting to cause physical harm to McKinney and engaging in conduct that, if successful, would result in purposely causing the death of another. Counts one and four correlate to the bullet that paralyzed McKinney and charge Williams with causing physical harm to another by means of a deadly weapon and engaging in conduct that, if successful, would result in causing the death of another as a proximate result of committing or attempting to commit felonious assault.
Allied Offenses
{¶22} Cabrales requires a comparison of the elements of the offense in the abstract, without considering the evidence in the case, but does not require an exact alignment of those elements.
{¶23} In order to commit the offense of attempted murder as defined in
{¶24} The next step in the Cabrales analysis requires a determination of whether the offenses were committed separately or with a separate animus. Williams knowingly engaged in conduct that, if successful, would have resulted in the death of another as a proximate result of committing felonious assault. He did so by knowingly firing a gun at McKinney and paralyzing him with one bullet. Thus, he committed the offenses of attempted murder and felonious assault with a single act and animus. Accordingly, while he may be found guilty of both offenses, he may be sentenced for only one. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 17.
{¶25} In order to commit the offense of attempted murder as defined in
{¶26} Considering these elements in the abstract, although they do not align exactly, when Williams attempted to cause harm by means of a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death of the victim. Here, felonious assault as defined by
{¶27} Next we must determine whether Williams committed these offenses separately or with a separate animus. Williams knowingly engaged in conduct that, if successful, would have purposely caused the death of another by knowing-
Conclusion
{¶28} Based upon the foregoing, felonious assault as defined in
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON and O‘CONNOR, JJ., concur.
CUPP, J., concurs in judgment only.
LANZINGER, J., concurs in part and dissents in part.
PFEIFER, J., dissents.
LANZINGER, J., concurring in part and dissenting in part.
{¶29} This convoluted case is an example of how difficult our jurisprudence on allied offenses has become. Simply stated, the jury heard evidence that Williams fired two shots in succession and that one bullet struck and paralyzed the victim, LayShawn McKinney. Williams was found guilty of all offenses for which he was indicted: two counts of felonious assault, two counts of attempted murder with firearm specifications, and one count of having a weapon while under disability. Williams was sentenced to a total prison term of 20 years.
{¶30} As is explained in the majority opinion, this court agreed to consider whether the two counts of felonious assault are allied offenses of the two counts of attempted murder. In other words, are the offenses of attempting to purposely cause the death of another pursuant to
{¶31} The General Assembly has expressed its intent to permit multiple punishments for the same conduct under certain circumstances.
{¶32} “(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.
{¶33} “(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.” (Emphasis added.)
{¶34} In spite of the foregoing language emphasizing the importance of the defendant‘s conduct, our current cases analyzing allied offenses instruct us to jump immediately to the abstract comparison of offenses charged without first considering the defendant‘s actual conduct as established by the evidence. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181; State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154; and State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882.
{¶35} This “abstract comparison” of offenses identifies offenses as allied offenses of similar import “if * * * the offenses are so similar that the commission of one offense will necessarily result in commission of the other.” Cabrales at paragraph one of the syllabus. Whether the commission of one offense necessarily resulted in commission of the other is best resolved when the actual evidence adduced at trial is allowed to be considered. I realize that in Cabrales this court “clarified” the test set forth in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, but I would go further to frankly reverse Rance. For omitting consideration of the evidence at trial is contrary to the statute, which states that the defendant‘s conduct must be considered in comparing the offenses: Did the commission of the one offense in this case necessarily result in the commission of the other? If so, the offenses are allied and of similar import.
{¶36} A defendant can be convicted and sentenced on more than one offense if the evidence shows that the defendant‘s conduct satisfies the elements of two or more disparate offenses. But if the conduct satisfies elements of offenses of similar import, then a defendant can be convicted and sentenced on only one, unless they were committed with separate intent.
{¶38} I would affirm the court of appeals’ holdings that Williams committed the attempted murders and felonious assaults with a single “purpose, intent and motive,” 2008-Ohio-5286, ¶ 38, and that the two counts of attempted murder and two counts of felonious assault should be merged into a single count for sentencing. Furthermore I agree that this case should be remanded to the trial court for the state to elect which of the four allied offenses Williams will be sentenced on, but I would limit the election to a single crime.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski, Assistant Prosecuting Attorney, for appellant.
Robert L. Tobik, Cuyahoga County Public Defender, and Robert M. Ingersoll, Assistant Public Defender, for appellee.