State v. Merriweather
| Decision Date | 03 December 1980 |
| Docket Number | No. 80-260,80-260 |
| Citation | 64 Ohio St.2d 57,18 O.O.3d 259,413 N.E.2d 790 |
| Parties | , 18 O.O.3d 259 The STATE of Ohio, Appellant, v. MERRIWEATHER, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The crime of robbery under R.C. 2911.02 is not a lesser-included offense of the crime of aggravated robbery under R.C. 2911.01(A)(1).
On January 19, 1979, a grand jury indicted Danny R. Merriweather, a. k. a. Abdullah Allah, the defendant herein, solely for aggravated robbery under R.C. 2911.01(A)(1). In the ensuing jury trial, the court instructed the jury on aggravated robbery under R.C. 2911.01(A)(1) and, over defense counsel's objection, on robbery under R.C. 2911.02. The jury found defendant guilty of robbery, and judgment was entered accordingly.
On appeal, the Court of Appeals reversed, ruling that the trial court erred in instructing the jury on robbery under R.C. 2911.02 for the reason that robbery under R.C. 2911.02 is not a lesser-included offense of aggravated robbery under R.C. 2911.01(A)(1).
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Joseph R. Grunda, Pros. Atty., and Michael J. Scherach, Asst. Pros. Atty., for appellant.
Savoy, Serazin & Deehy Co., L.P.A., and F. Scott Serazin, Elyria, for appellee.
The issue presented herein is whether the crime of robbery under R.C. 2911.02 is a lesser-included offense of the crime of aggravated robbery under R.C. 2911.01(A)(1).
There is no dispute that the indictment only included a charge for aggravated robbery under R.C. 2911.01(A)(1). 1 Thus, the trial court was correct in instructing the jury on robbery only if robbery is a lesser-included offense of aggravated robbery under R.C. 2911.01(A)(1), 2 i. e., only if robbery consists entirely of some but not all elements of aggravated robbery under R.C. 2911.01(A)(1). See State v. Hreno (1954), 162 Ohio St. 193, 122 N.E.2d 681, paragraph two of the syllabus.
In pertinent part, R.C. 2911.01 defines aggravated robbery as follows:
In pertinent part, R.C. 2911.02 defines robbery as follows:
"(A) No person, in attempting or committing a theft offense * * * shall use or threaten the immediate use of force against another."
The Court of Appeals ruled that robbery is not a lesser-included offense of aggravated robbery under R.C. 2911.01(A)(1) because the "use or threaten(ed) * * * immediate use of force against another," which is an element of robbery, is not an element of aggravated robbery under R.C. 2911.01(A)(1). Accord State v. Washington (1978), 56 Ohio App.2d 129, 140, 381 N.E.2d 1142.
The state herein counters that robbery is a lesser-included offense because the "deadly weapon element" of aggravated robbery under R.C. 2911.01(A)(1), i. e., "hav(ing) a deadly weapon or dangerous ordnance * * * on or about his person or under his control," necessarily embraces "use or threaten(ed) * * * immediate use of force against another." In support of this contention, the state argues that "force" within the meaning of the robbery statute should be given a broad interpretation. See R.C. 2901.01(A). Further, the state argues that the General Assembly intended robbery to be a lesser-included offense as evidenced by the Legislative Service Commission Note to R.C. 2911.02.
The state's argument is without merit. This court is bound by the language of criminal provisions, not unofficial Legislative Service Commission Notes. Additionally, this court is required to construe such criminal provisions "strictly * * * against the state, and liberally * * * in favor of the accused." R.C. 2901.04(A). Accord Harrison v. Ohio (1925), 112 Ohio St. 429, 147 N.E. 650; State ex rel. Moore Oil Co., v. Dauben (1919), 99 Ohio St. 406, 124 N.E. 232.
Irrespective of how broadly "force" is defined under the robbery statute, it remains that an accused can be convicted of aggravated robbery under R.C. 2911.01(A)(1) without having used or threatened to use any force, as long as the accused merely possesses a deadly weapon or dangerous ordnance during the commission of a theft. Thus, since aggravated robbery under R.C. 2911.01(A)(1) does not include an element concerning the use or threatened use of force, robbery under R.C. 2911.02, which does include such an element, is not a lesser-included offense.
The General Assembly has codified R.C. 2911.02 and 2911.01(A)(1) as separate and distinct offenses. Indeed, if we were to conclude instead that robbery under R.C. 2911.02 is a lesser-included offense of aggravated robbery under R.C. 2911.01(A)(1), we would in effect be usurping the legislative function by amending R.C. 2911.01(A)(1) to include "use or threaten(ed) * * * immediate use of force against another" as an additional element. 3 We of course refuse to do so.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
McBRIDE, J., of the Second Appellate District, sitting for PAUL W. BROWN, J.
I concur in the opinion of the majority herein based upon the following reasoning.
We must start, first, with the basic statutory requirement of R.C. 2901.04(A) that, "Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
Second, an indictment need not be in the exact language of the statute defining the offense, so long as all the essential elements of the crime are contained in language equivalent to that used in the statute, and the accused is advised in the indictment of the nature and cause of the accusation he is expected to meet. State v. Oliver (1972), 32 Ohio St.2d 109, 290 N.E.2d 828.
Here, the specific section of law set forth in the indictment was R.C. 2911.01(A)(1), which charged that the defendant, in committing or attempting to commit a theft offense, had a handgun "on or about his person, or under his control." Thus, the issue for this court is whether the possession of a deadly weapon constitutes the use or threatened use of force which is one of the elements of robbery under R.C. 2911.02. If...
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...statutes must be construed strictly against the state and liberally in favor of the accused. R.C. 2901.04(A); State v. Merriweather (1980), 64 Ohio St.2d 57, 413 N.E.2d 790 . A similar principle was adopted for ambiguous federal statutes in Bell v. United States (1955), 349 U.S. 81, at 84, ......
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... ... only one. R.C. 2941.25(A) ... When ... it is a close question, the legislature has directed that ... statutes are to be construed mist strongly in favor of the ... accused. R.C. 2901.04. See State v. Merriweather ... (1980), 64 Ohio St.2d 57; State v. Gray (1992), 62 ... Ohio App.3d 514. In State v. Warner (1990), ... 55 Ohio St.3d 31, the Ohio Supreme Court said that liberal ... construction was not an obstinate rule which overrides common ... sense, but that the ... ...
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