State v. Cabrales
| Decision Date | 09 April 2008 |
| Docket Number | No. 2007-0595.,No. 2007-0651.,2007-0595.,2007-0651. |
| Citation | 2008 Ohio 1625,118 Ohio St.3d 54,886 N.E.2d 181 |
| Parties | The STATE of Ohio, Appellant, v. CABRALES, Appellee. The State of Ohio, Appellee, v. Cabrales, Appellant. |
| Court | Ohio Supreme Court |
APPEAL from the Court of Appeals for Hamilton County, No. C-050682, 2007-Ohio-857, in No. 2007-0651.
CERTIFIED by the Court of Appeals for Hamilton County, No. C-050682, 2007-Ohio-857, in No. 2007-0595.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellant and appellee state of Ohio.
Elizabeth E. Agar, Cincinnati, for appellee and appellant Fernando Cabrales.
{¶ 1} The issue before the court is whether possession of a controlled substance under R.C. 2925.11(A), trafficking in a controlled substance under R.C 2925.03(A)(1), and trafficking in a controlled substance under R.C. 2925.03(A)(2) are allied offenses of similar import under R.C. 2941.25 and therefore must merge. We hold that possession and trafficking under R.C. 2925.03(A)(2) are allied offenses of similar import under R.C. 2941.25(A) where both offenses involve the same substance, and in this case both offenses were committed with the same animus under R.C. 2941.25(B), and therefore, the offenses must merge. However, we hold that the remaining offenses are not allied offenses of similar import and therefore do not merge. Accordingly, we affirm the judgment of the court of appeals.
{¶ 2} Defendant, Fernando Cabrales, a California resident, hired James Longenecker and Sean Matthews to transport marijuana from California to Cincinnati, Ohio, for the purpose of selling it. Once the two entered Ohio, a Hamilton County deputy sheriff stopped Matthews and Longenecker because of Matthews's erratic driving. During the traffic stop, the deputy discovered the marijuana in their vehicle and arrested both men. Longenecker and Matthews implicated Cabrales, whom the state charged with possession of marijuana under R.C. 2925.11(A), trafficking in marijuana under R.C. 2925.03(A)(1), trafficking in marijuana under R.C. 2925.03(A)(2), and conspiracy. A jury convicted Cabrales on all four counts, and he was sentenced accordingly.
{¶ 3} On appeal, Cabrales argued that possession and the two counts of trafficking in marijuana were all allied offenses of similar import committed with the same animus, and therefore these offenses merged.
{¶ 4} The court of appeals held that possession of a controlled substance under R.C. 2925.11(A) () and trafficking in a controlled substance under R.C. 2925.03(A)(1) () are not allied offenses of similar import, because a person can possess a controlled substance without selling or offering to sell it and, conversely, a person can sell or offer to sell a controlled substance without possessing it by selling it through a middleman. State v. Cabrales, Hamilton App. No. C-050682, 2007-Ohio-857, 2007 WL 624995, ¶ 35.
{¶ 5} The court also held that trafficking in a controlled substance under R.C. 2925.03(A)(1) () and trafficking in a controlled substance under R.C. 2925.03(A)(2) () are not allied offenses of similar import, because "Cabrales needed a separate animus to commit each crime." Id. at ¶ 38.
{¶ 6} However, the court of appeals held that possession of a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(2) are allied offenses of similar import, reasoning that Id. at ¶ 36. Thus, the trial court could not sentence Cabrales for both offenses.
{¶ 7} The court of appeals certified that its holding conflicted with holdings from other appellate districts. We determined that a conflict existed with regard to the following question: "Are the offenses of trafficking in a controlled substance in violation of R.C. 2925.03(A)(2) and possession of a controlled substance in violation of R.C. 2925.11(A) allied offenses of similar import when the same controlled substance is involved in both offenses?" State v. Cabrales, 114 Ohio St.3d 1408, 2007-Ohio-2632, 867 N.E.2d 842. We also accepted proposition IV of Cabrales's appeal, in which he asserts that possession and the two counts of trafficking are all allied offenses of similar import. We sua sponte consolidated the two appeals. Together then, these two cases present the issue of whether possession under R.C. 2925.11(A), trafficking under R.C. 2925.03(A)(1), and trafficking under R.C. 2925.03(A)(2) are allied offenses of similar import.
{¶ 8} The state argues that the court of appeals' holding that possession under R.C. 2925.11(A) and trafficking under R.C. 2925.03(A)(2) are allied offenses ignored the abstract elements-comparison test set forth by this court in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699. The state asks the court to reverse the court of appeals, reaffirm that Rance requires courts to compare elements of offenses in the abstract, and hold that possession and trafficking are not allied offenses of similar import, because their elements do not exactly coincide.
{¶ 9} Cabrales argues that Rance's abstract elements-comparison test has created confusion among the appellate courts and produced illogical results. He argues that a less "formulaic comparison" of offenses under R.C. 2941.25(A) will produce a more logical result in determining whether offenses are allied or not.
{¶ 10} Although we affirm the judgment of the court of appeals and answer the certified question in the affirmative, we find it necessary to clarify Rance's test under R.C. 2941.25(A) in doing so.
{¶ 11} We begin our analysis by examining Ohio's multiple-count statute, R.C. 2941.25, which provides:
{¶ 12} "(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.
{¶ 13} "(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."
{¶ 14} This court has recognized that R.C. 2941.25 requires a two-step analysis. See Newark v. Vazirani (1990), 48 Ohio St.3d 81, 549 N.E.2d 520, syllabus; State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; State v. Mughni (1987), 33 Ohio St.3d 65, 67, 514 N.E.2d 870; State v. Talley (1985), 18 Ohio St.3d 152, 153, 18 OBR 210, 480 N.E.2d 439; State v. Logan (1979), 60 Ohio St.2d 126, 128, 14 O.O.3d 373, 397 N.E.2d 1345. (Emphasis sic.) State v. Blankenship, 38 Ohio St.3d at 117, 526 N.E.2d 816.
{¶ 15} In Rance, the court determined that Id., 85 Ohio St.3d at 636, 710 N.E.2d 699, quoting Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238.
{¶ 16} Courts have struggled applying Rance's abstract elements-comparison test. For example, the Second District Court of Appeals considered whether involuntary manslaughter and aggravated vehicular homicide are allied offenses of similar import when there is only one victim. State v. Hendrickson, Montgomery App. No. 19045, 2003-Ohio-611, 2003 WL 264339. Finding that it was compelled to apply Rance, the court compared the elements of the two offenses, and because the elements did not correspond to such a degree that commission of one crime will result in the commission of the other, they were not allied offenses. Id. at ¶ 25-26. Thus, the court held that Hendrickson could be sentenced for both involuntary manslaughter and aggravated vehicular homicide. Id. at ¶ 28. However, the court stated, Id. at ¶ 26; see also State v. Waldron (Sept. 1, 2000), Ashtabula App. No. 99-A-0031, 2000 WL 1257520, *5 (Christley, J., concurring) (...
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