Robbery and Aggravated Robbery, Armed and Unarmed Assault Are ‘Allied Offenses’ That Must be Consolidated
2007-1812. State v. Harris, Slip Opinion No. 2009-Ohio-3323.
Hamilton App. No. C-060587. Judgment reversed and cause remanded to the trial court.
Lundberg Stratton, O’Connor, O’Donnell, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-3323.pdf 
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(July 7, 2009) The Supreme Court of Ohio ruled today that the crime of robbery, as defined in R.C. 2911.02(A)(2), and aggravated robbery, as defined in R.C. 2911.01(A)(1), are “allied offenses of similar import” and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus (wrongful purpose) against the same victim.
In a majority decision authored by Justice Evelyn Lundberg Stratton, the Court also held that felonious assault as defined in R.C. 2903.11(A)(1) and felonious assault as defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim.
Cornelius Harris of Cincinnati was charged with three counts of robbery, three counts of aggravated robbery and five counts of felonious assault under two different sections of the assault statute. All of the counts were based on an incident in which Harris and a co-defendant robbed three victims at gunpoint, and the co-defendant subsequently shot two of the robbery victims when they attempted to overpower him and Harris.
Harris was found guilty on all of the charged counts. The trial court imposed separate sentences for all three robbery counts, all three aggravated robbery counts, all of the assault counts and a firearm specification, and ordered that all sentences be served consecutively. Harris appealed, arguing that the robbery and aggravated robbery counts were “allied offenses of similar import” that the trial court was required to merge into a single conviction for each victim who was robbed. He also challenged the validity of his separate convictions and sentences for two different forms of felonious assault based on the same actions, arguing that those counts also should have been merged. The 1st District Court of Appeals affirmed the judgment and sentence of the trial court in August 2007.
Harris sought and was granted Supreme Court review of the 1st District’s ruling.
Writing for the Court in today’s decision, Justice Stratton cited language in Ohio’s multiple-count statute, R.C. 2941.25, providing that: “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.” She cited a 2008 decision, State v. Cabrales, in which the Supreme Court clarified its 1999 holding in State v. Rance with regard to how courts should determine whether two criminal charges against a defendant are “allied offenses” that must be combined into a single conviction.
Justice Stratton wrote: “(I)n Cabrales we held that even though the elements of possession of a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(2) (‘knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance’) did not exactly align, the crimes were, nevertheless, allied offenses of similar import because trafficking in a controlled substance necessarily results in possession of the same controlled substance. Having reviewed Cabrales’s clarification of Rance, we now examine the offenses at issue in this case.”
“Each count of robbery herein was charged under R.C. 2911.02(A)(2), which provides that no person, in attempting or committing a theft offense, or fleeing immediately thereafter, shall ‘[i]nflict, attempt to inflict, or threaten to inflict physical harm on another.’ Each count of aggravated robbery was charged under R.C. 2911.01(A)(1), which provides that no person, in attempting or committing a theft offense, or in fleeing immediately thereafter, shall ‘[h]ave 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.’ ... 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 R.C. 2911.02(A)(2) and aggravated robbery defined in R.C. 2911.01(A)(1) are so similar that the commission of one offense will result in commission of the other. Accordingly, we hold that robbery defined in R.C. 2911.02(A)(2) and aggravated robbery defined in R.C. 2911.01(A)(1) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim.”
With regard to Harris’ separate convictions for felonious assault, Justice Stratton cited a 2007 decision in which the Supreme Court addressed the same legal question. “In State v. Cotton,” she wrote “the defendant stabbed one victim, three times. He was convicted of felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2). The trial court imposed sentences for both convictions. The court of appeals affirmed. We reversed the judgment of the court of appeals in Cotton on the authority of State v. Brown (2008) holding that felonious assaults in violation of R.C. 2903.11(A)(1) and (2) are allied offenses of similar import under R.C. 2941.25(A). ... On the authority of Cotton, we affirm that convictions for felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim.”
Applying that analysis to Harris’ case, Justice Stratton wrote that his six separate convictions for aggravated robbery and robbery against the three victims “must be merged to a total of three convictions for robbery or aggravated robbery against the three victims, to be determined by the state on remand. Harris was also convicted on one count of felonious assault under R.C. 2903.11(A)(1) and one count of felonious assault under R.C. 2903.11(A)(2) for his actions against Dwight Lawrence. During the robbery, Harris struck Dwight Lawrence with the gun. Later, (his co-defendant) shot Dwight Lawrence one time. It is unclear from the record and the jury instructions 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 later shooting were separately charged as assaults. We remand this cause to the trial court to determine this issue and whether the assaults, if separately charged, were committed with the same animus. Finally, Harris was convicted on two counts of felonious assault under R.C. 2903.11(A)(1) and (A)(2), for two gunshot wounds inflicted on Meatchem. Under the facts in this case, we hold that both assault offenses were committed with the same animus. Therefore, Harris’s convictions for felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2) must be merged to one conviction, to be determined by the state on remand.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor and Terrence O’Donnell.
Justice Robert R. Cupp entered a separate concurring opinion indicating that he had “serious concern” about the Court’s application of Cabrales as interpreted in a 2009 decision, State v. Winn. He wrote: “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 R.C. 2941.25.”
“The Winn approach – determining whether commission of one offense probably results in commission of the other – requires a subjective determination about which reasonable minds are likely to differ,” wrote Justice Cupp. “Because Winn garnered 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 such experience sheds its guiding light, I am bound by the principle of stare decisis. Therefore, I reluctantly concur.”
Justice Judith Ann Lanzinger entered a separate opinion, joined by Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer, in which she concurred with the majority’s holdings that the robbery and aggravated robbery charges and separate felonious assault charges against Harris were allied offenses that must be merged for conviction and sentencing. Justice Lanzinger dissented, however, from the majority’s remand of two of the assault charges to the trial court for additional proceedings.
She wrote that in the state’s closing argument at trial: “(I)t 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 R.C. 2903.11(A)(1) and 2903.11(A)(2). Clearly, then, the state sought to charge Harris with felonious assaults arising only out of the gunshots. 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.”
Contacts
Theresa G. Haire, 614.466.5394, for Cornelius Harris.
James M. Keeling, 513. 946.3178, for the state and Hamilton County prosecutor’s office.