State v. Frazier

• Decision Date: 06 June 1979
• Docket Number: No. 78-913,78-913
• Citation: 12 O.O.3d 263,389 N.E.2d 1118,58 Ohio St.2d 253
• Parties: , 12 O.O.3d 263 The STATE of Ohio, Appellant, v. FRAZIER, Appellee.
• Court: Ohio Supreme Court

Page 253

58 Ohio St.2d 253

389 N.E.2d 1118, 12 O.O.3d 263

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

No. 78-913.

Supreme Court of Ohio.

June 6, 1979.

Testimony was given at the trial of Jewell W. Frazier, defendant-appellee herein, that on May 12, 1977, two males, one of whom was subsequently identified as the defendant, came to the door of Mr. and Mrs. Gerald Dorr, ostensibly seeking employment cutting grass. After Mrs. Dorr informed the men that no such work was available, the two pushed their way into the house, knocking Mrs. Dorr to the floor in the process. Mrs. Dorr was then beaten by both men, sustaining injuries to her face, left eye and shoulder.

Mr. Dorr, who was suffering from a severe heart condition at the time, came to the top of the stairs from the upstairs bedroom during the attack upon his wife. One of the intruders apparently left Mrs. Dorr and ascended the stairs. Shortly thereafter Mr. Dorr was thrown down the steps, landing next to his wife. Medical testimony indicated that Mr. Dorr died at the scene of the incident from a heart attack.

Mrs. Dorr testified that the intruders assumed both she and her husband were dead, whereupon they searched the house. Among items allegedly stolen by the men were watches, jewelry, silverware, a revolver, credit cards and cash.

Defendant was arrested, tried, and convicted on all four counts in the indictment: aggravated robbery, aggravated burglary, felonious assault and involuntary manslaughter.

On appeal, the Court of Appeals reversed defendant's conviction for aggravated robbery on the basis that R.C. 2941.25(A) precludes conviction for both aggravated robbery and aggravated burglary.

This cause is before this court upon allowance of a motion for leave to appeal.

Anthony G. Pizza, Pros. Atty., and Jeffrey D. Swartz, Toledo, for appellant.

Robert E. DeMars, Toledo, for appellee.

PER CURIAM.

R.C. 2941.25 provides, as follows:

"(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.

"(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."

The issue raised by the state in this appeal is whether the offense of aggravated robbery, committed in violation of R.C. 2911.01(A)(2), and the crime of aggravated burglary, a violation of R.C. 2911.11(A)(3), constitute, "allied offenses of similar import" within the meaning of R.C. 2941.25(A), or whether these offenses are similar but, under the facts of this cause, were committed separately or with a separate animus, within the contemplation of R.C. 2941.25(B). If the crimes are of similar import, the defendant is entitled to have one conviction set aside. See State v. Osborne (1976), 49 Ohio St.2d 135, 359 N.E.2d 78. If not, or if the facts fall within the exception created by R.C. 2941.25(B), then both convictions must stand.

The aggravated robbery statute, R.C. 2911.01, provides, in relevant part, as follows:

"(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:

"(2) Inflict, or attempt to inflict serious physical harm on another."

The aggravated burglary statute, R.C. 2911.11 provides, in pertinent part, as follows:

"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:

"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present."

The defendant contends that because the aggravated robbery and burglary statutes are in the same chapter of the Revised Code and because both incorporate theft offenses, they are necessarily "allied offenses of similar import." In support of this contention the defendant argues essentially that which the Court of Appeals found, I. e., "to uphold appellant's conviction and sentence on both charges would impose double punishment for one transaction carried out with a single...