State v. Blankenship
| Citation | 526 N.E.2d 816,38 Ohio St.3d 116 |
| Decision Date | 03 August 1988 |
| Docket Number | No. 87-1746,87-1746 |
| Parties | The STATE of Ohio, Appellee, v. BLANKENSHIP, Appellant. |
| Court | United States State Supreme Court of Ohio |
Keith A. Shearer, Pros. Atty., and Martin Frantz, Wooster, for appellee.
J. Dean Carro, Akron, for appellant.
While appellant raises other issues before this court, the conflict certified to us by the court of appeals involves only the question of whether the offenses of felonious assault and kidnapping are allied offenses of similar import under R.C. 2941.25. We decline to address appellant's other issues and find that under the facts of the case before us the offenses of felonious assault and kidnapping are not allied offenses of similar import and, accordingly, we affirm the judgment of the court of appeals.
R.C. 2941.25 provides:
This court has set forth a two-tiered test to determine whether two crimes with which a defendant is charged 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. 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, 397 N.E.2d 1345, 1348.
Accordingly, we first must compare the elements of the two offenses. In the case at bar, appellant was convicted of kidnapping, R.C. 2905.01(A) and felonious assault, R.C. 2903.11. R.C. 2905.01 provides:
R.C. 2903.11 provides:
Kidnapping requires proof that a defendant (1) knowingly, (2) by force, (3) restrained another of his liberty. To establish the offense of felonious assault there must be proof that a defendant (1) knowingly (2) caused serious physical harm to another.
Comparing the elements of the two crimes, we do not find that the elements correspond to such a degree that the commission of kidnapping necessarily results in the commission of felonious assault. A kidnapping may occur without a felonious assault. Likewise, a felonious assault may occur absent the existence of a kidnapping. A person may seriously injure another without restraining the victim of his or her liberty.
Applying the foregoing to the facts before us, the kidnapping occurred when the guard was rendered unconscious and then bound with a rope. The felonious assault (the guard's being struck on the head) occurred after the kidnapping had taken place. Thus, the felonious assault cannot be said to be part of the kidnapping offense.
Therefore, on the specific facts of this case, we hold that the offenses of kidnapping, R.C. 2905.01(A)(2), and felonious assault, R.C. 2903.11(A)(1), are not allied offenses of similar import.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
ALBA L. WHITESIDE, J., of the Tenth Appellate District, sitting for SWEENEY, J.
WHITESIDE, Judge of Court of Appeals, concurring.
Although I concur in the affirmance of the judgment of the court of appeals, I cannot concur in the opinion because it fails to resolve the certified issue.
Defendant-appellant contends that the offenses of kidnapping and felonious assault constitute allied offenses of similar import and, as such, his conviction of both is precluded by R.C. 2941.25, which provides that:
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...and [Ohio App.3d 70] defendant could be convicted and sentenced on both offenses. Cabrales at ¶ 14, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. {¶ 125} In Williams, the accused fired two shots at the victim. One shot struck the victim and instantly paralyzed ......
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State v. Anthony
...commit the other with the same conduct, not whether it is possible to commit one without committing the other. [State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988) ] (Whiteside, J., concurring) (“It is not necessary that both crimes are always committed by the same conduct b......
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...284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Logan, 60 Ohio St.2d 126, 128, 397 N.E.2d 1345 (1979); State v. Blankenship, 38 Ohio St.3d 116, 526 N.E.2d 816 (1988); State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999); State v. Fears, 86 Ohio St.3d 329, 715 N.E.2d 136 (1999)......
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State v. Howard, Case No. 2012-CA-00061
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