State v. Childs

• Decision Date: 31 May 2000
• Docket Number: No. 99-12.,99-12.
• Parties: THE STATE OF OHIO, APPELLANT, v. CHILDS, APPELLEE.
• Court: Ohio Supreme Court

88 Ohio St.3d 558

728 NE 2d 379

THE STATE OF OHIO, APPELLANT, v. CHILDS, APPELLEE.

No. 99-12.

Supreme Court of Ohio.

Submitted February 8, 2000.

Decided May 31, 2000.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Lynda K. Ashbery, Assistant Prosecuting Attorney, for appellant.

Charles A. Smiley, Jr., for appellee.

COOK, J.

At issue in this appeal is whether the appellate court properly reversed the convictions against Dineah Childs on the grounds of multiplicity of convictions, defectiveness of the indictment, and inadmissibility of the supporting evidence. For the reasons set forth below, we affirm the appellate court's decision as to Count 2, but reverse its disposition of Counts 14 and 15.

I. Multiplicity

In its first proposition of law, the state urges us to reverse the appellate court's merger of Counts 2, 14, and 15. Arguing that each count related to a distinct conspiratorial agreement, the state contends that neither federal law, R.C. 2941.25(A), nor 2923.01(F) requires these counts to be merged. Childs responds that these counts related to a single conspiratorial agreement and are therefore multiplicitous. In resolving this issue, we are mindful of the constitutional concern underlying multiplicity. It has been said that the vice of a multiplicitous indictment lies in the possibility of multiple punishments for a single offense in violation of the cumulative punishment branch of the Double Jeopardy Clause of the Fifth Amendment. See 1A Wright, Federal Practice & Procedure, Crim.3d (1999) 17, Section 142.

The Double Jeopardy Clause is not violated, however, where the legislature has evinced an intent to permit multiple punishments for a single offense. Thus, "[t]he real question is one of legislative intent, to be ascertained from all the data available." Id. at 17-20, Section 142. As the United States Supreme Court has clarified, "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542.

Our inquiry in cases such as this, therefore, is limited to whether the General Assembly intended to permit multiple punishments for the offenses at issue. In Ohio, the primary legislative statement on the multiplicity issue is found in R.C. 2941.25, concerning allied offenses of similar import. Known as Ohio's multicount statute, that provision asks essentially whether the offenses correspond to such a degree as to constitute the same offense.

R.C. 2941.25, however, is not the sole legislative declaration in Ohio on the multiplicity of indictments. Depending upon the offense at issue, that section must be read in concert with other legislative statements on the issue. R.C. 2923.01(F) is such a legislative statement. It sets forth an additional limitation upon multiple punishments in the context of conspiracy offenses. Thus, we review the conspiracy convictions against Childs in the context of both R.C. 2941.25 and 2923.01(F).

A. Counts 14 and 15: Conspiracy to Commit Aggravated Trafficking

R.C. 2941.25(A) provides: "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." This statute tests whether "the elements of the crimes `correspond to such a degree that the commission of one crime will result in the commission of the other'" in such instances. If so, the crimes are deemed offenses of similar import and may not be separately punished. State v. Rance (1999), 85 Ohio St.3d 632, 638, 710 N.E.2d 699, 705, quoting State v. Jones (1997), 78 Ohio St.3d 12, 13, 676 N.E.2d 80, 81. In applying this statute, "the statutorily defined elements of offenses that are claimed to be of similar import are compared in the abstract." (Emphasis deleted.) Rance, at paragraph one of the syllabus. Using this analysis, we conclude that the statutory elements of the offenses contained in Counts 14 and 15 do not correspond to the extent required to prohibit multiple punishments. Because the underlying offenses in each count differ—Count 14 involves former R.C. 2925.03(A)(2), while Count 15 involves former R.C. 2925.03(A)(7)—an element of each crime is unique to that particular violation. Consequently, these offenses are of dissimilar import and may be the subject of separate convictions, provided that they are not prohibited from such under the additional limitation for conspiracies contained in R.C. 2923.01(F).

R.C. 2923.01(F) prohibits multiple convictions for single conspiracies. That section provides: "A person who conspires to commit more than one offense is guilty of only one conspiracy, when the offenses are the object of the same agreement or continuous conspiratorial relationship."

Pursuant to this statute, analysis of whether conspiracy offenses are separately punishable under R.C. 2923.01(F) requires a determination as to (1) whether the offenses are the object of the same agreement, and (2) whether the offenses are part of a continuous conspiratorial relationship. If either circumstance exists, the offenses constitute one conspiracy and may not be separately punished.

The "single agreement" portion of R.C. 2923.01(F) analyzes whether the evidence supports the existence of one or multiple agreements. As explained by the United States Supreme Court in Braverman v. United States (1942), 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23, 28, where the evidence reveals one agreement, that "agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one."

State courts interpreting statutes nearly mirroring our own have employed a similar analysis. In Doolin v. State (Fla.App.1995), 650 So.2d 44, 45, the defendant was charged with two counts of conspiracy: conspiracy to kidnap to inflict bodily harm and conspiracy to commit aggravated battery. Holding that these offenses could not be separately punished, the court reasoned that they arose from one agreement. Specifically, no evidence established that the "conspiracy to kidnap to inflict bodily harm was terminated and a separate conspiracy to commit aggravated battery was thereafter agreed to by the co-conspirators." Id. Similarly, in Jones v. State (Okla.Crim.App.1998), 965 P.2d 385, 386, co-conspirators agreed to murder two individuals at the inception of their plan and the crime was therefore chargeable as only one conspiracy.

Here, the evidence supports the existence of separate agreements as to Counts 14 and 15. Unlike the situations described in Doolin and Jones, the audiotapes reveal a series of agreements, rather than one initial agreement to commit a particular series of offenses. In State's Exhibit 37, for instance, Childs conspired to sell four ounces of cocaine. Charged as Count 15, this conspiracy involved separate negotiations that culminated in a distinctly identifiable agreement for that particular sale. State's Exhibit 41 marked the beginning of a new agreement unrelated to the prior one. The conversation recorded there evidenced a conspiracy between Childs and Charles to sell drugs to Pauley. Notably, at no time in any of the prior tapes did the parties agree to or contemplate the future transactions that would be undertaken. Thus, each sale was brought about by an individual conspiratorial agreement.

Having concluded that multiple agreements existed, we must also, nevertheless, determine whether these agreements were part of an overall continuing conspiratorial relationship under the second part of R.C. 2923.01(F). Although we find scant judicial interpretation of this concept, we recognize the relevant inquiry to be the extent to which the conspiracy embraces a common and continuous goal.

In Commonwealth v. Davis (Pa.Super.1997), 704 A.2d 650, 654, where the overall objective of the conspiracy was to collect a drug debt, the conspirators could not be separately convicted for their multiple agreements to rob the victim by force and to beat him with such intensity as to cause his death. Concluding that the charges of conspiracy to rob and conspiracy to murder were multiplicitous, the court identified the "`essential feature of the existing conspiracy'" as a "`common plan or scheme to achieve a common, single, comprehensive goal.'" Id., quoting Commonwealth v. Troop (1990), 391 Pa.Super. 613, 623, 571 A.2d 1084, 1090. Similarly, in State v. Whiteside (Feb. 10, 1987), Franklin App. No. 86AP-325, unreported, 1987 WL 6532, distinct agreements to obtain guns over a period of time to be used during a planned gang shootout were considered part of the conspirators' overall goal, and therefore one conspiracy.

Where co-conspirators committed a series of robberies, however, the individual agreements to commit these robberies were not part of an overall, ongoing conspiracy. Commonwealth v. Troop, 391 Pa.Super. at 624-625, 571 A.2d at 1090. Rather, each robbery stemmed from a separate agreement to acquire money in order to purchase cocaine. Id. Consequently, the court allowed separate convictions for each offense.

We view the evidence in the instant case as supporting distinct conspiracies rather than subagreements toward a common overriding objective. Unlike the collection of the drug debt in Davis, these conspirators entered into discrete conspiratorial agreements, each with its own short-term goal. Accordingly, these crimes were permissibly charged as separate offenses under the continuous conspiratorial relationship prong of R.C. 2923.01(F).

Because Counts 14 and 15 satisfy each of the applicable statutory requirements for multiple convictions, we conclude that they are separate offenses for which separate convictions may be upheld.

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