City of Newark v. Vazirani

• Decision Date: 31 January 1990
• Docket Number: No. 88-1750,88-1750
• Parties: CITY OF NEWARK, Appellee, v. VAZIRANI, Appellant.
• Court: Ohio Supreme Court

Page 81

48 Ohio St.3d 81

549 N.E.2d 520

CITY OF NEWARK, Appellee, v. VAZIRANI, Appellant.

No. 88-1750.

Supreme Court of Ohio.

Submitted Nov. 15, 1989.

Decided Jan. 31, 1990.

Syllabus by the Court

Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. 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 proceed 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. (State v. Blankenship [1988], 38 Ohio St.3d 116, 117, 526 N.E.2d 816, 817, approved and followed.)

In late July 1987, Patrolman Robert Hill of the Newark Police Department observed several minors consuming beer in the parking lot behind a discount store. Hill approached these minors, had them pour their beer out onto the ground, and offered two of them, John Jason Cooperider and Brian Faine, the choice of having their parents informed of their activities or cooperating with Officer Hill in conducting a "controlled buy" of beer at Jay's Beer Dock. This was the establishment where the boys' beer had been purchased.

On August 4, 1987, Hill met again with John Cooperider and Brian Faine at a local restaurant. Hill supplied John with $20 and asked him to attempt to purchase beer from Jay's Beer Dock. John either left his Ohio driver's license at his car in the restaurant parking lot or had the license in a gym bag in the friend's car he was driving when making the purchase.

John purchased a six-pack of beer, which he turned over to Hill. Hill then returned to the drive-through, warned the attendant, S.M. Vazirani, defendant herein, that Hill would be seeking charges for the sale, and gave the defendant the Miranda warnings.

The chief of bio-chemistry and toxicology at the Ohio Department of Health tested the beer in accordance with statutory procedures for determining alcoholic content of a beverage and determined that the beverage possessed the minimum statutory alcohol content necessary to be classified as beer. Defendant was then charged with violating both Newark Codified Ordinances Section 612.02 (sale of beer to a person under legal age) and Newark Codified Ordinances Section 636.125(2) (acting in a way tending to cause a child to become an unruly child or a delinquent child).

Defendant was subsequently convicted of both of these offenses. The Court of Appeals for Licking County affirmed both convictions. That court found these two offenses are not allied offenses of similar import, since it believed that the elements of these two offenses are not so closely related that the commission of one will result in the commission of the other.

The cause is now before this court upon the allowance of a motion to certify the record.

Michael F. Higgins, Asst. Director of Law, for appellee.

John A. Connor II Co., L.P.A., and John A. Connor II, for appellant.

WRIGHT, Justice.

Appellant Vazirani's third proposition of law presents us with the narrow but recurring question of whether a municipality may obtain two convictions for crimes arising out of the same act and circumstances. Specifically, appellant asks us whether selling beer to a person under age nineteen as defined under Newark Codified Ordinances Section 612.02, and acting in a way tending to cause unruliness or delinquency in a child, under Newark Codified Ordinances Section 636.125(2), are "allied offenses of similar import" as defined by R.C. 2941.25(A). Given the facts of this case we find that they are, and that appellant may be convicted of only one of the offenses charged.

R.C. 2941.25 sets the parameters for when the state may obtain convictions for two or more allied crimes of similar import. R.C. 2941.25(A) generally bars the state from obtaining convictions for allied offenses of similar import:

"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."

R.C. 2941.25(B) sets forth the only exceptions to this bar, allowing conviction for allied offenses of similar import when the defendant's " * * * conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each * * *."

We have dealt with the issue of allied offenses of similar import on numerous occasions and have " * * * set forth a two-tiered test to determine whether two crimes with which a defendant is charged are allied offenses of similar import * * *." State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816, 817. In State v. Blankenship, Justice Douglas stated:

"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 proceed 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. State v. Mughni (1987), 33 Ohio St.3d 65, 67, 514 N.E.2d 870, 872; State v. Talley (1985), 18 Ohio St.3d 152, 153-154, 18 OBR 210, 211-212, 480 N.E.2d 439, 441; State v. Mitchell (1983), 6 Ohio St.3d 416, 418, 6 OBR 463, 464, 453 N.E.2d 593, 594; State v. Logan (1979), 60 Ohio St.2d 126, 128, 14 O.O.3d 373, 374, ...