State v. Johnson, 2009–1481.

• Decision Date: 29 December 2010
• Docket Number: No. 2009–1481.,2009–1481.
• Citation: 128 Ohio St.3d 153,942 N.E.2d 1061
• Parties: The STATE of Ohio, Appellee,v.JOHNSON, Appellant.
• Court: Ohio Supreme Court

128 Ohio St.3d 153

942 N.E.2d 1061

2010 -Ohio- 6314

The STATE of Ohio, Appellee,

v.JOHNSON, Appellant.

No. 2009–1481.

Supreme Court of Ohio.

Submitted May 11, 2009.Decided Dec. 29, 2010.

Syllabus of the Court

When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered. ( State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R. Cummings, Assistant Prosecuting Attorney, for appellee.

Law Offices of Ravert J. Clark, Cincinnati and Lindsey R. Gutierrez, for appellant.Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecuting Attorney.Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant State Public Defender, urging reversal for amicus curiae Ohio Public Defender.

BROWN, C.J.

[Ohio St.3d 153] I. Certified Issue

{¶ 1} The First District Court of Appeals certified the following issue pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25: “Are the elements of child endangering

[set forth in

R.C. 2919.22(B)(1)] sufficiently similar to the elements of felony murder with child endangering as the predicate offense that the commission of the murder logically and necessarily also results in the commission of the child endangering?” (Bracketed material sic.)

{¶ 2} We answer the certified question in the affirmative in this case and reverse the judgment of the court of appeals.

[Ohio St.3d 154] II. Facts and Procedural Posture

{¶ 3} Fred Johnson, appellant, beat seven-year-old Milton Baker to death. A jury found Johnson guilty of various crimes based upon his violence against Milton. Two of those crimes are relevant to this appeal: felony murder under R.C. 2903.02(B) (based upon the predicate offense of child endangering) and child endangering under R.C. 2919.22(B)(1).

{¶ 4} Johnson claims that the trial court should have merged the felony-murder conviction and the child-endangering conviction under R.C. 2941.25 as allied offenses. In Johnson's direct appeal, the First District Court of Appeals disagreed, reasoning that the felony-murder statute and the child-endangering statute served different societal interests and therefore could not be considered allied offenses.

{¶ 5} The court of appeals recognized that its holding on this issue was in conflict with a decision of the Fifth District Court of Appeals in State v. Mills, Tuscarawas App. No. 2007 AP 07 0039, 2009-Ohio-1849, 2009 WL 1041441. Mills was convicted of felony murder under R.C. 2903.02(B) and child endangering under R.C. 2919.22(B)(1) for the death of a child in her custody during daycare. The Fifth District Court of Appeals held that the offenses of felony murder and child endangering were allied, reasoning that felony murder based upon the predicate offense of child endangering was so aligned with the offense of child endangering that one could not commit the murder without, at the same time, meeting the elements of the child-endangering statute. 2009-Ohio-1849, 2009 WL 1041441, at ¶ 229.

{¶ 6} The court of appeals certified the conflict between its decision in this case and the decision in Mills. We recognized the conflict. State v. Johnson, 123 Ohio St.3d 1405, 2009-Ohio-5031, 914 N.E.2d 203.

III. Analysis

A. Introduction

{¶ 7} This case is yet another example “of how difficult our jurisprudence on allied offenses has become.” State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 29 (Lanzinger, J., concurring in part and dissenting in part). Once again, we are presented with two offenses and asked whether they are allied offenses that merge according to R.C. 2941.25. Two courts of appeals have examined the issue and reached different conclusions.

{¶ 8} In 1999, when we decided State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, we intended to create a test of ready application that would produce clear, predictable results with regard to allied offenses. Id. at 636. Unfortunately, the standard announced in Rance has proven difficult to apply. We take this opportunity to overrule Rance. In doing so, we return to the mandate of R.C. 2941.25, which instructs courts to consider whether a defendant's conduct constituted[Ohio St.3d 155] two or more allied offenses of similar import. See Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, at ¶ 31–34 (Lanzinger, J., concurring in part and dissenting in part).

{¶ 9} We hold that Johnson's two offenses were allied under R.C. 2941.25 because the same conduct constituted the commission of two offenses of similar import under the facts of this case.

B. The history of the allied-offenses analysis

1. The law of allied offenses prior to State v. Rance

{¶ 10} We laid the groundwork for analysis of allied offenses in State v. Botta (1971), 27 Ohio St.2d 196, 56 O.O.2d 119, 271 N.E.2d 776. In Botta, we explained that a jury could find that a defendant had committed multiple offenses from a single occurrence when “all the essential elements of fact as to both offenses had been proved.” Id. at 202. This preserved the integrity of the jury's fact-finding role. Id. at 204. But we held that as a matter of law, once the jury returned its verdicts, the court could sentence only as to one offense and would have to dismiss the other. Id. We held that a person could commit several distinct and independent crimes “at the same time and in the same transaction,” yet when “in substance and effect but one offense has been committed,” the court could sentence on only one offense and must dismiss the other. Id. at 202–203.

{¶ 11} The reasoning of Botta was based upon the concept of “merger,” described as “the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.” Id. at 201.

{¶ 12} In 1972, the General Assembly enacted R.C. 2941.25 in order to guide courts in the determination of offenses subject to merger. State v. Logan (1979), 60 Ohio St.2d 126, 131, 14 O.O.3d 373, 397 N.E.2d 1345 (“the statute has attempted to codify the judicial doctrine * * * sometimes referred to as the doctrine of merger, and other times as the doctrine of divisibility of offenses” [footnotes omitted]).¹

{¶ 13} R.C. 2941.25 provides:

{¶ 14} “(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.

{¶ 15} “(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 [Ohio St.3d 156] 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.” ²

{¶ 16} R.C. 2941.25 has never been amended.

{¶ 17} In 1976, we discussed the recently enacted R.C. 2941.25 in Maumee v. Geiger (1976), 45 Ohio St.2d 238, 74 O.O.2d 380, 344 N.E.2d 133. We explained that “[b]y the enactment of this section, the General Assembly resolved the problems of common law procedure and practice in a practical and realistic fashion, and in conformity with this court's decision in State v. Botta

[27 Ohio St.2d 196, 56 O.O.2d 119, 271 N.E.2d 776]

.” Id. at 242. The purpose of R.C. 2941.25, we noted, was to prevent “ ‘shotgun’ convictions.” Id., quoting the Legislative Service Commission comments to R.C. 2941.25.

{¶ 18} In 1979, we surveyed the cases applying R.C. 2941.25 and developed a cohesive approach to analysis of allied offenses under that statute, an approach that has been used (in modified form) up to today. Logan, 60 Ohio St.2d at 128, 14 O.O.3d 373, 397 N.E.2d 1345. In interpreting R.C. 2941.25(A), we held:

{¶ 19} “[I]n order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other.

{¶ 20} “In addition * * *, the defendant, in order to obtain the protection of R.C. 2941.25(A), must show that the prosecution has relied upon the same conduct to support both offenses charged.” Id.

[Ohio St.3d 157] {¶ 21} We went on to examine the requirement of animus in R.C. 2941.25(B), concluding that “notwithstanding the fact that a defendant is charged with two or more offenses of the same or similar kind he may be convicted of all of them if he committed them separately, or if he possessed a separate ‘animus' as to each.” Id. at 129, 14 O.O.3d 373, 397 N.E.2d 1345.

{¶ 22} Several years later, we summarized the then-familiar Logan two-step approach to R.C. 2941.25 in State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 816. “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 may 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.” Id.

{¶ 23} The concurring opinion in Blankenship explained that in the first step, a court determines “whether the nature of the elements of the offenses is such that in some instances they may overlap, that is, that in certain instances, both crimes...