Court Rules Crime of Robbery is ‘Lesser Included Offense’ of Aggravated Robbery
2008-0363. State v. Evans, Slip Opinion No. 2009-Ohio-2974.
Cuyahoga App. No. 89057, 2008-Ohio-139. Judgment reversed and conviction reinstated.
Moyer, C.J., Lundberg Stratton, O’Connor, O’Donnell, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment.
Cupp, J., concurs in judgment and paragraph one of the syllabus.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2974.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), is a “lesser included offense” of the crime of aggravated robbery, as defined it R.C. 2911.01(A)(1).
In a 7-0 decision authored by Justice Terrence O’Donnell, the Court clarified its 1988 ruling in State v. Deem by stating that, in determining whether an offense is a lesser included offense of another, a court must consider (1) whether one offense carries a greater penalty than the other; (2) whether some element of the greater offense is not required to prove commission of the lesser offense; and (3) whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.
Timothy Evans of Cleveland was indicted by a grand jury on a charge of aggravated robbery for an incident in which he attempted to steal the purse of a woman after telling her that he had a gun. The grand jury indicted Evans for violating the aggravated robbery statute, R.C. 2911.01(A)(1), which requires the state to show that Evans was “in possession or control of a deadly weapon” and either “displayed, brandished, indicated he possessed, or used” that weapon in committing or attempting to commit a theft offense. The grand jury did not consider or make findings that Evans had committed the separate offense of robbery as defined in R.C. 2911.02(A)(2), which requires that a defendant did “inflict, attempt to inflict or threaten to inflict physical harm on another” while committing or attempting to commit a theft offense.
At trial, the victim testified that she had not seen a gun at the time of the attack, although Evans had repeatedly claimed to possess one while struggling with her to steal her purse. The trial court granted Evans’ motion to dismiss the aggravated robbery charge based on its finding that the state had not proved the required element that he was actually in possession or control of a deadly weapon at the time of the attempted theft. The court ruled, however, that the state had proved that Evans had committed the crime of robbery. Finding that robbery is a “lesser included offense” of aggravated robbery, and that the state was therefore not required to obtain a separate indictment for robbery, the court convicted and sentenced Evans for robbery.
Evans appealed, arguing that robbery is not a lesser included offense of aggravated robbery and the trial court had violated his due process rights by convicting him of a crime for which he had not been indicted. On review, the 8th District Court of Appeals held that, under a test established in a 1988 Supreme Court of Ohio decision, State v. Deem, robbery is not a lesser included offense of aggravated robbery because robbery includes an element that aggravated robbery does not – inflicting, attempting to inflict, or threatening to inflict physical harm. Concluding that the facts necessary to support this element of robbery were not presented to the grand jury, the court reversed Evans’s robbery conviction as plain error.
The state sought and was granted Supreme Court review of the 8th District’s decision.
In today’s decision, a unanimous Supreme Court reversed the ruling of the 8th District, reinstated Evans’ robbery conviction, and clarified one portion of the Deem test for determining when one crime constitutes a lesser included offense of another.
Writing for the Court, Justice O’Donnell noted that R.C. 2945.74 provides that a criminal defendant may be found guilty of a lesser included offense even though the lesser offense was not separately charged in the indictment. “Lesser included offenses need not be separately charged in an indictment, because when an indictment charges a greater offense, it ‘necessarily and simultaneously charges the defendant with lesser included offenses as well,’” wrote Justice O’Donnell. “Thus, a conviction for a lesser included offense does not deprive an offender of his constitutional right to presentment or indictment by the grand jury, because by indicting the offender for the greater offense, the jury has necessarily considered each of the essential elements of the lesser offense.”
“In Deem, this court established a three-part test for courts to use to determine whether one offense is a lesser included offense of another, stating: ‘An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.’” In this case, he wrote: “we observe that the first part of the Deem test requires a review of penalties, and we note that aggravated robbery carries a greater penalty than robbery; next, pursuant to the third part of the Deem test we examine the elements of the offenses and note that aggravated robbery as defined in R.C. 2911.01(A)(1) contains an element – possession of a deadly weapon – that robbery does not. Thus, our analysis here focuses ... on the troublesome second part of the Deem test, which as stated requires that ‘the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed.’ (Emphasis added.) ... Here, we consider whether aggravated robbery as defined in R.C. 2911.01(A)(1) can ever be committed without also committing robbery as defined in R.C. 2911.02(A)(2).”
“Evans argues that a person can indicate possession of a deadly weapon without implying a threat to inflict physical harm by purchasing a hunting knife in a hardware or sporting goods store as he simultaneously shoplifts a bag of nails that he has placed in his pocket. This argument is not well taken. ... Having previously rejected such strict textual comparison in the context of the Deem lesser included offense analysis, emphasizing that a court should focus ‘on the nature and circumstances of the offenses as defined, rather than on the precise words used to define them,’ we now reject the implausible scenario advanced by Evans in this case. Moreover, to ensure that such implausible scenarios will not derail a proper lesser included offense analysis, we further clarify the second part of the Deem test to delete the word ‘ever.’”
Justice O’Donnell concluded: “This clarification does not modify the Deem test, but rather eliminates the implausible scenarios advanced by parties to suggest the remote possibility that one offense could conceivably be committed without the other also being committed. Deem requires a comparison of the elements of the respective offenses in the abstract to determine whether one element is the functional equivalent of the other. If so, and if the other parts of the test are met, one offense is a lesser included offense of the other.”
“As this clarification of Deem relates to the offenses of aggravated robbery and robbery as defined in this case, to establish aggravated robbery, the state carries the burden to prove that Evans had a deadly weapon and indicated his possession of it; and to establish robbery, the state must prove a threat to inflict physical harm on the victim. Indicating possession of a deadly weapon constitutes an implied threat to inflict physical harm because it intimidates a victim and is designed to compel relinquishment of property without consent. Therefore, an element to element comparison reveals an equivalence between indicating possession of a deadly weapon in order to compel compliance with a demand for property and an implied threat to inflict physical harm. Thus, aggravated robbery as statutorily defined in this case cannot be committed without also committing the offense of robbery. Accordingly, robbery as defined in R.C. 2911.02(A)(2) is a lesser included offense of aggravated robbery as defined in R.C. 2911.01(A)(1).”
Contacts
Matthew E. Meyer, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.
David M. King, 216.443.3667, for Timothy Evans.