State v. Evans

• Decision Date: 07 July 2009
• Docket Number: No. 2008-0363.,2008-0363.
• Citation: 2009 Ohio 2974,911 N.E.2d 889,122 Ohio St.3d 381
• Parties: The STATE of Ohio, Appellant, v. EVANS, Appellee.
• Court: Ohio Supreme Court

911 N.E.2d 889

122 Ohio St.3d 381

2009-Ohio-2974

The STATE of Ohio, Appellant, v. EVANS, Appellee.

No. 2008-0363.

Supreme Court of Ohio.

Submitted January 21, 2009.

Decided July 7, 2009.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew E. Meyer, Assistant Prosecuting Attorney, for appellant.

Robert L. Tobik, Cuyahoga County Public Defender, and David M. King and John T. Martin, Assistant Public Defenders, for appellee.

O'DONNELL, J.

{¶ 1} In this matter, we are called upon to determine whether robbery is a lesser included offense of aggravated robbery. In resolving that issue, it is necessary to revisit the test for lesser included offenses set forth in State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294.

{¶ 2} On November 18, 2005, Catrice Stewart drove to the Collinwood Village Food Mart on St. Clair Avenue at London Road, in Cleveland, Ohio. After she parked her car and began walking toward the store, Timothy Evans approached her from behind, grabbed her purse, and yelled, "Give me this purse, bitch," and upon her resistance, he declared, "I've got a gun," moving his hand as if to reach for something. Stewart then replied, "Well, you know what? You're going to have to use it," and began to kick and fight him. Although Evans repeated several times that he had a gun, Stewart stated that she never saw it. Observing the struggle, a nearby driver sounded her horn. That noise and Stewart's resistance caused Evans to flee without Stewart's purse. Police responded, but were unable to apprehend Evans that night.

{¶ 3} About two months later, Stewart saw Evans walking down the street and recognized him as the man who had tried to take her purse. She called police, who arrested Evans. A Cuyahoga County grand jury indicted Evans on one count of aggravated robbery in violation of R.C. 2911.01(A)(1), stating that he "did, in attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon Catrice Stewart have a deadly weapon to-wit: gun, on or about his person or under his control and either displayed the weapon, brandished it, indicated that he possessed it, or used it."

{¶ 4} Evans waived the right to a jury and at the bench trial, the court granted his Crim.R. 29 motion with respect to the aggravated robbery charge, finding that the state had not presented sufficient evidence to prove that Evans had a weapon on his person when he committed the offense; however, the court found him guilty of robbery as a lesser included offense of aggravated robbery.

{¶ 5} Evans appealed to the Eighth District Court of Appeals, arguing that his conviction for the unindicted offense of robbery was unconstitutional because robbery is not a lesser included offense of aggravated robbery. Applying the test for lesser included offenses set forth in State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, the appellate court determined that 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.

{¶ 6} We accepted the state's discretionary appeal to consider whether robbery is a lesser included offense of aggravated robbery and to clarify the criteria for determining whether one offense is a lesser included offense of another. For the reasons that follow, 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), and, having reviewed Deem, we modify the second part of the lesser included offense analysis to delete the word "ever," to clarify its application in future cases.

The Deem Test

{¶ 7} Section 10, Article I of the Ohio Constitution provides that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury * * *." We have long recognized that "[t]his provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury." State v. Headley (1983), 6 Ohio St.3d 475, 478, 6 OBR 526, 453 N.E.2d 716, citing Harris v. State (1932), 125 Ohio St. 257, 181 N.E. 104. An indictment will satisfy this constitutional requirement if it, "`first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" State v. Childs (2000), 88 Ohio St.3d 558, 565, 728 N.E.2d 379, quoting Hamling v. United States (1974), 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590.

{¶ 8} We also recognize, however, 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.'" State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, 905 N.E.2d 151, ¶ 14, quoting State v. Lytle (1990), 49 Ohio St.3d 154, 157, 551 N.E.2d 950. 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.

{¶ 9} 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." Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, at paragraph three of the syllabus. We clarified the Deem test in State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595, and held that when a statute sets forth mutually exclusive ways of committing the greater offense (e.g., where one element of the offense can be satisfied by proving either that the defendant actually committed another offense or attempted to commit it) a court is required to apply the second part of the Deem test separately to each alternate method of committing the greater offense. Smith, at paragraph one of the syllabus. Following that clarification, we determined that the crime of theft — depriving an owner of property without consent — was a lesser included offense of robbery — causing harm to another while attempting, committing, or fleeing after a theft offense. Id. at ¶ 29. There, because the trial court had found that the state had not proven the harm element beyond a reasonable doubt but had found that all elements of theft had been proven beyond a reasonable doubt, we determined that Smith's conviction for the lesser included offense of theft was proper. Id. at ¶ 5, 30.

{¶ 10} In the instant case, 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 again on the troublesome second part of the Deem test, which requires that "the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed." (Emphasis added.) Deem, at paragraph three of the syllabus.

{¶ 11} The state contends that the strict comparison of elements required by the second part of the Deem test has produced incongruous and illogical results that fail to hold criminal defendants accountable for crimes in the absence of specific indictments for each related offense. The state urges us to modify the second part of the Deem test to permit courts to consider the particular facts and circumstances of each case in determining whether one offense is a lesser included offense of another, or to consider whether "the offenses are so similar that the commission of one offense will necessarily result in commission of the other," as we have done in our analogous test for allied offenses of similar import. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph one of the syllabus.

{¶ 12} On the other hand, Evans contends that adoption of the state's fact-based approach will impinge upon a criminal defendant's constitutional right to a grand jury indictment, permitting convictions for offenses that were either considered and rejected or never even contemplated by the grand jury. He asserts that the state's proposed test would create uncertainty for prosecutors, defendants, and the courts by making it impossible to predict, before trial, what lesser included offenses would be at issue. In addition, Evans argues that because we have previously held that robbery is not a lesser included offense of aggravated robbery, applying a contrary ruling would violate his due process rights.

{¶ 13} We have consistently held that in applying Deem to lesser included offenses, "`"`the evidence presented in a particular case is irrelevant to the determination of whether an offense, as...