State v. Johnson

Decision Date31 August 1983
Docket NumberNo. 82-657,82-657
Citation453 N.E.2d 595,6 OBR 466,6 Ohio St.3d 420
Parties, 6 O.B.R. 466 The STATE of Ohio, Appellant, v. JOHNSON, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. Aggravated robbery, as defined by R.C. 2911.01, is an "allied offense of similar import" to theft, as defined by R.C. 2913.02. (R.C. 2941.25[A], applied.)

2. The offenses of murder, R.C. 2903.02, and involuntary manslaughter, R.C. 2903.04, share the common element of causing the death of another and are distinguishable only by the offender's mental state. The prohibition against double jeopardy requires that in any one killing, the offender may be convicted of one or the other of the offenses but not both.

On February 13, 1979, appellee, Kenneth M. Johnson, was indicted by the Lake County Grand Jury for one count each of the offenses of murder, R.C. 2903.02(A), involuntary manslaughter, R.C. 2903.04(B), aggravated robbery, R.C. 2911.01(A)(1), and grand theft, R.C. 2913.02(A)(1). All four charges stemmed from an incident occurring on January 25, 1979, in which Thomas D. Hill was shot to death and several items of personal property were taken from his apartment.

At his arraignment conducted on October 9, 1980, appellee attempted to enter a plea of guilty as to the charges of involuntary manslaughter and theft and not guilty as to the remaining charges. After a series of hearings and, over the objections of the state, the trial court accepted this plea on November 26, 1980. The court thereafter sentenced appellee to serve three to ten years on the involuntary manslaughter count and two to five years on the theft count.

Subsequently, appellee filed a motion to dismiss the charges remaining against him on the basis that his constitutional protection against being placed twice in jeopardy for the same offense would be violated if he were to be tried on the counts of murder and aggravated robbery. Upon consideration, the trial court found this argument to be well-taken and granted the motion to dismiss.

The court of appeals affirmed and the cause is now before this court upon the allowance of a motion for leave to appeal.

John E. Shoop, Prosecuting Atty., Judson J. Hawkins, Gregory C. Sasse and Robert W. LaForce, Painesville, for appellant.

Purola & Savage and Albert L. Purola, Willoughby, for appellee.


The Double Jeopardy Clause is contained in the Fifth Amendment to the United States Constitution which provides, in part, " * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This prohibition has been held to be applicable to the states by operation of the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707. Moreover, the Ohio Constitution contains a similar protection in Section 10, Article I which states, " * * * [n]o person shall be twice put in jeopardy for the same offense."

It is established that there are three protections offered by the Double Jeopardy Clause to the criminal defendant: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.

It is the state's position that the second of those protections was improperly invoked and applied in this case. In support of this position, the state advances a two-pronged argument. First, it maintains that the offenses of murder and involuntary manslaughter and the offenses of aggravated robbery and theft are not the same for double jeopardy purposes. Second, citing the cases of Jeffers v. United States (1977), 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, and United States v. Goldman (C.A.3, 1965), 352 F.2d 263, it asserts that the appellee was not subjected to multiple prosecutions in that he was properly charged with all four offenses in a single indictment and that he chose to artificially bifurcate the proceedings by pleading guilty to some of the offenses and not guilty to the others. In summary, the state asserts that a criminal defendant charged with multiple crimes should not be permitted to manipulate the timing of the proceedings in such a manner as to avoid prosecution for the more serious charges by pleading guilty to the lesser offenses and then claiming a double jeopardy bar as to the others.

The state's position rests upon the argument that the essential issue in this case is one of timing. Accordingly, it maintains that were it not for the trial court's erroneous acceptance of a partial guilty plea over prosecutorial objections, the case would have proceeded to trial and the appellee could have been convicted of all four counts of the indictment.

Upon careful consideration of the record below as well as the applicable statutory and case law, we find this position to be untenable. We agree with the appellant that this case does not involve successive prosecutions such as to warrant the application of the collateral estoppel principles set forth in Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and its progeny. Rather, this case concerns the third double jeopardy protection prohibiting multiple punishments for the same offense. In reviewing and applying this protection, it is our conclusion that the appellee could not have been convicted of all the charges against him regardless of the timing of the trial court's acceptance of his pleas.

Where an accused is charged with more than one statutory violation and the double jeopardy prohibition against multiple punishments for the same offense is invoked, the standard test to be applied in determining whether the offenses are sufficiently distinguishable is the one enunciated in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306:

" * * * The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. * * * "

This test stresses the commonality of the elements of the offenses charged and generally forbids cumulative punishments for both a greater and a lesser included offense. Brown v. Ohio (1977), 432 U.S. 161, 164-166, 97 S.Ct. 2221, 2224-26, 53 L.Ed.2d 187. It is noteworthy, however, that the two offenses need not be identical in constituent elements or in actual proof in order to be the same for double jeopardy purposes. Id. at 164, 97 S.Ct. at 2224.

The General Assembly has further effectuated the principles contained in the Double Jeopardy Clause by means of R.C. 2941.25, the multiple count statute. State v. Thomas (1980), 61 Ohio St.2d 254, 259-260, 400 N.E.2d 897 . This statute provides:

"(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."

As in Blockburger, this statute involves comparing the elements of the various statutory offenses with which the defendant is charged. Allied offenses of similar import are those offenses which have elements corresponding to such a degree that the commission of one offense will result in the commission of the other. State v. Logan (1979), 60 Ohio St.2d 126, 128, 397 N.E.2d 1345 . Where the offenses are allied, the defendant may not be convicted of them all unless they were committed separately or with a separate animus as to each. R.C. 2941.25(B).

In this case, the appellee was charged with both aggravated robbery and theft. "Aggravated robbery" was defined in R.C. 2911.01 as follows 1:

"(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:

"(1) Have a deadly weapon or dangerous ordinance as defined in section 2923.11 of the Revised Code on or about his person or under his control "(2) Inflict, or attempt to inflict serious physical harm on another.

"(B) Whoever violates this section is guilty of aggravated robbery, a felony of the first degree."

"Theft" was defined in R.C. 2913.02:

"(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:

"(1) Without the consent of the owner or person authorized to give consent;

"(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

"(3) By deception;

"(4) By threat.

"(B) Whoever violates this section is guilty of theft. * * * "

This court has previously held that where theft does not require the proof of any element not required to be proved for the offense of robbery as defined in R.C. 2911.02, 2 they are the same offense for double jeopardy purposes. State v. Harris (1979), 58 Ohio St.2d 257, 389 N.E.2d 1121 . We believe that the same reasoning applies in the case of theft and aggravated robbery.

The Committee Comment to R.C. 2911.01 indicates that theft is the basic element of robbery with the principle difference between the offenses being that robbery involves an element of actual or threatened personal harm to the victim. The seriousness of the robbery is determined by the degree of actual or potential harm with aggravated robbery involving...

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