THE STATE OF OHIO, CROSS-APPELLANT, v. WINN, CROSS-APPELLEE.
No. 2007-1842
Supreme Court of Ohio
Submitted September 30, 2008—Decided March 17, 2009.
121 Ohio St.3d 413, 2009-Ohio-1059
{1124} Therefore, upon reconsideration of this case, I would hold that theft is a lesser included offensе of robbery but that unless the charging document alleges the additional element of the value of the property stolen, the theft conviction may be for only the least level of the offense, that being a misdemeanor of the first degree.
PFEIFER, J., concurs in the foregoing opinion.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellee.
Michaela M. Stagnaro, for appellant.
LANZINGER, J.
{1 1} This appeal asks us to once again determine whether two seрarate crimes are considered allied offenses of similar import pursuant to
II
{1 2} Defendant, Davon Winn, with two accomplices, entered the apartment of the victim of his crimes using a pry bar. One of the men entered brandishing a gun, which he pointed at the victim while ordering her to return to her bedroom. The man had her lie on the bed and cover her face with a pillow. He pushed the gun against her head through the pillow and demanded money. The apartment was ransacked until the police arrived.
{1 3} A neighbor called the police after he heard banging on the victim‘s apartment door and, through his peephole, saw the men prying open the door. Realizing the police had arrived, the three men hid their two guns, gloves, a mask, and the pry bar in the apartment. When police ordered the men out of the apartment, Winn‘s two accomplices complied, but he stayed behind until the police entered the apartment to arrest him.
{1 4} Winn was convicted by jury of aggravated robbery, aggravated burglary, and kidnapping, with each including a firearm specification, and three counts of tampering with evidence. The trial court sentenced him to ten years in prison, which included separate seven-year sentences for the aggravated robbery and kidnapping convictions, to be served concurrently. Upon Winn‘s appeal of his convictions and sentence, the court of appeals held that kidnapping and aggravated robbery are allied offenses of similar import and that the convictions must be merged. State v. Winn, 173 Ohio App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, 1 34. The court therefore vacated the separate sentence on the kidnapping convictiоn. Id. at 1 35.
{1 5} We accepted the discretionary cross-appeal of the cross-appellant, state of Ohio, on two propositions of law: (1) “Any inquiry into the appropriateness of cumulative punishments imposed for multiple offenses under Ohio‘s multiple count statute must end when the statutory elements of the offenses, compared in the abstract, do not correspond to such a degree that the commission of оne offense will necessarily result in the commission of the other” and (2) “Ohio‘s multiple count statute offers no protection from cumulative punishments for aggravated robbery and kidnapping because they are not allied offenses of
III
{1 6} As the court discussed in State v. Rance (1999), 85 Ohio St.3d 632, 635, 710 N.E.2d 699, whether cumulative punishments for two separate offenses stemming from the same conduct violate the Double Jeopardy Clause is determined by the legislative intent found in
{1 7}
{1 8} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment оr information may contain counts for all such offenses, but the defendant may be convicted of only one.
{1 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.”
{1 10} We have said that the application of this statute involves a two-tiered analysis. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, 1 18, citing State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, 1 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 proceеd 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 sic.) Id. at 1 19, quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. The state‘s propositions of law do not challenge the appellate court‘s determination that Winn did not have a separate animus for the kidnapping and aggravated robbery, so we need not address that issue.
{1 11} In Rance, 85 Ohio St.3d at 637-638, 710 N.E.2d 699, we held that the first step for determining whether two offenses are allied offenses of similar
{1 12} We rejected a “strict textual comparison” and stated, “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 1 26. Cabrales explained that elements need not be identical for offenses to be аllied.
{1 13} Turning to the elements of the offenses involved in this case, we note that
{1 14} “(A) No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
{1 15} “* * *”
{1 16} “(2) To facilitate the commission of any felony or flight thereafter.”
{1 17}
{1 18} “(A) No person, in attempting or committing a theft offense, as defined in
{1 19} “(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.”
{1 20} “* * *”
{1 21} In essence, the elements to be compared in the abstract are the restraint, by force, threat, or deception, of the liberty of another to “facilitate the commission of any felony” (kidnapping,
{1 22} Holding that kidnapping and aggravated robbery are allied offensеs is also in keeping with 30 years of precedent. State v. Logan (1979), 60 Ohio St.2d 126, 130, 14 O.O.3d 373, 397 N.E.2d 1345, has been considered authority for the proposition that kidnapping and robbery are allied offenses of similar import. State v. Jenkins (1984), 15 Ohio St.3d 164, 198, 15 OBR 311, 473 N.E.2d 264, fn. 29 (pre-Rance case, citing Logan for proposition that “implicit within every robbery (and aggravated robbery) is a kidnapping“); State v. Fears (1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136 (kidnapping specification merges with aggravated-robbery specification unless the offenses were committed with a separate animus); State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, 1 204, citing Jenkins, 15 Ohio St.3d at 198, 15 OBR 311, 473 N.E.2d 264, fn. 29 (“kidnapping is implicit within every aggravated robbery“); Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at 1 18, 25.
{1 23} In Logan, this court concluded: “It is clear from the plain language of the statute that no movement is required to constitute the offense of kidnapping; restraint of the victim by force, threat, or deception is sufficient. Thus, implicit within every forcible rape (
{1 24} Nor are we persuaded by the state‘s purse-snatcher or shoplifter scenarios. These examples lapse into the strict textual comparison that this court rejected in Cabrales. We would be hard pressed to find any offenses allied if we had to find that there is no conceivable situation in which one crime can be committed without the other.
IV
{1 25} When analyzed in the abstract, the crime of kidnapping, defined by
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, and O‘DONNELL, JJ., concur.
MOYER, C.J., and O‘CONNOR and CUPP, JJ., dissent.
MOYER, C.J., dissenting.
{1 26} Because I believe the majority improperly applies the jurisprudence we have developed for determining whether two offenses are allied offenses of similar import, I respectfully dissent. After accurately laying out the test we have developed in State v. Rance (1999), 85 Ohio St.3d 632, 636, 710 N.E.2d 699, and State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, the majority misapрlies the test to create an unworkable standard.
II
{1 27} The test for determining allied offenses, as announced in Cabrales and restated by the majority, is “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, 1 26. It is apparent that committing a kidnapрing does not necessarily result in an aggravated robbery, because the act of kidnapping can be committed without attempting to commit or committing a theft offense, as required for aggravated robbery. The reverse question is more complicated—whether one can commit an aggravated robbery without necessarily committing a kidnapping.
{1 28} The assertion that in committing a robbery one must restrain the liberty of the victim long enough to perform the theft, thereby committing the offense of kidnapping, may seem reasonable, but it is not always the case.
{1 29} There are a number of instances in which an aggravated robbery can be committed without a kidnapping being committed: e.g. (1) a pickpocket points a gun at the victim, but the victim does not know it, and therefore suffers no restraint of his liberty, (2) a purse-snatcher, with a gun in hand, simply grabs the purse and runs without restricting the victim‘s freedom, and (3) altering the facts of this case, the defendant and his accomplices enter the apartment while the victim is still sleeping, and the gunman merely points the gun at the victim in case she awakes as the others ransack the apartment. These hypothetical but likely examples demonstrate that one does not necessarily commit a kidnapping when committing an aggravated robbery.
{1 30} The majority, in reaching the opposite conclusion, merely restates the pertinent elements of kidnapping and aggravated robbery and then concludes that “[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
{1 31} The majority seems to acknowledge that there are circumstances in which an aggravated robbery can be committed without a kidnapping by citing the state‘s examples of the purse-snatcher and the shoplifter. The examples are quickly dismissed, however, as “laps[ing] into the strict textual comparison that this court rejected in Cabrales.” Majority opinion at 1 24. This is a misreading of Cabrales. The strict textual-comparison method that we rejected is just what its name implies, a comparison of the statutory text of two offenses, which are deemed to be allied only if the text is found to be identical. We noted that “[o]ther than identical offenses, we cannot envision any two offenses whose elements align exactly.” (Emphasis sic.) Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at 1 22. In that case, we also provided the example of the allied offenses of theft and receiving stolen property. See id. at 1 25, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. A strict textual comparison would find the elements not to be identical, and therefore the crimes not to be allied offenses. Id. But one cannot logically commit theft without also receiving stolen prоperty, so the commission of one offense necessarily results in commission of the other, making them allied offenses of similar import. Id. This is not the case for kidnapping and aggravated robbery, as the previous examples illustrate.
{1 32} The majority‘s dismissal of the state‘s examples ultimately amounts to a rewriting of the Cabrales test, which draws its effect from the word “necessarily.” Id. at paragraph one of the syllabus. “Necessarily” is defined as “1) by or of necessity; as a matter of compulsion or requirement; 2) as a necessary, logical, or inevitable result.” Random House Dictionary (2d Ed.1987) 1283. If there are evident examples of how aggravated robbery can be committed without a kidnapping, then the former does not inevitably result in the latter.
{1 33} 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. According to this new standard, if the commission of one offense is, to some uncertain degree, likely to also result in the commission of another offense, then the two are considered allied offenses of similar import. 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.
{1 34} If a court determines that thеre are situations in which offense A can be committed without committing offense B, it will then have to determine how
III
{1 35} The majority claims that “[w]e would be hard pressed to find any offenses allied if we had to find that there is no conceivable situation in which one crime can be committed without the other.” Majority opinion at 1 24. I disagree. While this test, which I believe is the proper formulation of the Cabrales test, may restrict allied offenses to more limited circumstances than the majority would prefer, it does not reduce the set of allied offenses to nil. Our precedent proves this statement to be true.
{1 36} First, as noted above, Cabrales cites the example of Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, in which we held that theft and receiving stolen property are allied offenses. Second, in State v. Donald (1979), 57 Ohio St.2d 73, 74-75, 11 O.O.3d 242, 386 N.E.2d 1341, we held that kidnapping, under
{1 37} Finally, in Cabrales itself, we held that “trafficking in a controlled substance under
{1 38} In all of these three cases, the pairs of crimes involved are allied offenses of similar import because it is logically impossible to commit one without committing the other; “there is no conceivable situation in which оne crime can be committed without the other.” Majority opinion at 1 24. Any concern the
{1 39} I concede that there is a legitimate concern that this strict interpretation of the Cabrales test could lead to absurd results in some cases. This concern is why we developed the preemptive exception in State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at 1 37, holding that resort to the twо-tiered test developed in Rance and the subsequent opinions is unnecessary “when the legislature‘s intent is clear from the language of the statute.” In Brown, this conclusion led us to hold that separate convictions for aggravated assault under two different subdivisions of the same statute violated
{1 40} The Brown exception does not, however, decide the issue before us because the intent of the General Assembly is not clear from the language of the statutes. In this case, we are presented with two different offenses under different statutory sections. The kidnapping statute serves the interest of protecting the physical liberty of persons, while the aggravated-robbery statute protects personal property. We must therefore apply the two-tiered analysis.
IV
{1 41} Finally, the majority also argues that 30 years of precedent favors a holding that kidnapping and aggravated robbery are allied offenses. Thе cases cited by the majority do not control our decision. The primary authority cited, State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, is not persuasive. First, Logan was decided in 1979, 20 years before we established the two-tiered analysis for allied offenses in Rance, 85 Ohio St.3d 632, 710 N.E.2d 699. Second, the court‘s discussion of robbery and kidnapping was dicta in the opinion because the facts of the case involved the offenses of rape and kidnapping, and the statements in the opinion regarding robbery and kidnapping werе made in the context of the court‘s analysis of animus. Logan, 60 Ohio St.2d at 131-132, 14 O.O.3d 373, 397 N.E.2d 1345. The court did not engage in an abstract analysis of the actual elements of each offense, as we have since expressly required in Rance and Cabrales. See Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at paragraph one of the syllabus; Rance, 85 Ohio St.3d at 637-638, 710 N.E.2d 699.
{1 42} The other cases cited by the majority also are not controlling. Our opinions in State v. Jenkins (1984), 15 Ohio St.3d 164, 198, 15 OBR 311, 473 N.E.2d 264, fn. 29; State v. Fears (1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136;
{1 43} Because our precedent does not firmly decide the issue before us, we cannot rely on it for authority.
V
{1 44} I would reverse the judgment of the court of appeals and hold that kidnapping and aggravated robbery are not allied offenses of similar import, because aggravated robbery can be committed without necessarily committing kidnapping.
O‘CONNOR and CUPP, JJ., concur in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Jill R. Sink, Assistant Prosecuting Attorney, for cross-appellant.
Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant Public Defender, for cross-appellee.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Todd A. Nist, Assistant Solicitor, urging reversal for amicus curiae Attorney General of Ohio.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, urging affirmance for amicus curiae Cuyahoga County Public Defender.