State v. Mughni, 87-25

• Decision Date: 04 November 1987
• Docket Number: No. 87-25,87-25
• Citation: 33 Ohio St.3d 65,514 N.E.2d 870
• Parties: The STATE of Ohio, Appellee, v. MUGHNI, Appellant.
• Court: Ohio Supreme Court

Page 65

33 Ohio St.3d 65

514 N.E.2d 870

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

No. 87-25.

Supreme Court of Ohio.

Nov. 4, 1987.

Syllabus by the Court

The offenses of knowingly selling or offering to sell a controlled substance, as proscribed by R.C. 2925.03(A)(1), and knowingly selling or offering to sell a counterfeit controlled substance, in violation of R.C. 2925.37(B), are not allied offenses of similar import. (R.C. 2941.25, applied.)

In the early morning hours of May 25, 1984, defendant-appellant, Fazl Mughni, encountered an undercover police officer in the vicinity of Clark and Vine Streets in Cincinnati, Ohio. Appellant approached the officer and agreed to sell him three tablets which appellant described as "perks," a street name for Percodan, a controlled substance. The officer paid for the tablets with marked bills. Shortly thereafter, appellant was arrested and taken into custody. At the station, appellant told officers that analysis of the tablets would show that they were not Percodan. Subsequent examination did in fact reveal that the tablets were not Percodan, but were another, non-controlled substance.

Appellant was indicted on one count of drug trafficking in violation of R.C. 2925.03(A) and one count of selling or offering to sell a counterfeit controlled substance in contravention of R.C. 2925.37. Both counts contained an allegation that appellant had previously been convicted of a felony drug abuse offense, which conviction serves to enhance the degree of each of the instant offenses.

The case was tried to the court without a jury. At the close of the evidence, counsel for appellant requested that the court require the prosecutor to make an election between the two counts, on the basis that they are allied offenses of similar import committed with a single animus. The trial court overruled the motion, and appellant was convicted on both counts. The court sentenced appellant to five to fifteen years' imprisonment on count one, and two years on count two, to be served concurrently.

The court of appeals affirmed, rejecting appellant's argument that the two offenses were allied offenses of similar import and that appellant could not, therefore, be convicted of both. The court reasoned that the elements of each offense in this case did not correspond to such a degree that the commission of one offense would necessarily result in the commission of the other. Hence, the offenses are not allied offenses of similar import, and the convictions on both counts were proper.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Arthur M. Ney, Jr., Pros. Atty., and L. Susan Laker, Cincinnati, for appellee.

Randall M. Dana, Public Defender, and Wendie A. Gerus, Columbus, for appellant.

DOUGLAS, Justice.

The instant appeal poses to this court a single question: Are the offenses of which appellant was convicted allied offenses of similar import, such that appellant's conviction of both counts was improper under R.C. 2941.25(A)? We answer this question in the negative.

R.C. 2941.25 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."

Appellant was convicted of two offenses. The first was a violation of R.C. 2925.03(A), which provides:

"(A) No person shall knowingly do any of the following:

"(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount as defined in section 2925.01 of the Revised Code * * *." ¹

The second was a violation of R.C.

2925.37, which states in pertinent part:

"(B) No person shall knowingly make, sell, offer to sell, or deliver any substance that he knows is a counterfeit controlled substance." ²

In determining whether two offenses are allied under R.C. 2941.25, this court has employed a two-step analysis. The first step requires a comparison of the elements with which the defendant is charged, for the purpose of discovering whether the elements of both offenses correspond to such a degree that the commission of one offense will result in commission of the other. If so, they are allied offenses of similar import. If the court so finds, it must proceed to the second step, which involves a review of the defendant's conduct to determine whether the offenses were committed separately or with a separate animus as to each. If so, the defendant may be convicted of both. State v. Talley (1985), 18 Ohio St.3d 152, 18 OBR 210, 480 N.E.2d 439. See, also, State v. Mitchell (1983), 6 Ohio St.3d 416, 6 OBR 463, 453 N.E.2d 593; State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345. The defendant bears the burden of establishing his entitlement to the protection, provided by R.C. 2941.25, against multiple punishments for a single criminal act. Logan, supra, at 128-129, 14 O.O.3d at 374-375, 397 N.E.2d at 1348.

Thus, our first task is to compare the elements of the offenses with which appellant was charged. The first count, under R.C. 2925.03(A)(1), charged that appellant " * * * knowingly did sell or offer to sell a * * * controlled substance * * * to-wit; Percodan * * *." Appellant was also charged, under R.C. 2925.37, with " * * * knowingly * * * sell[ing] or offer[ing] to sell an unknown substance purported to be a * * * controlled substance, to-wit; Percodan * * *, knowing the same to be a counterfeit controlled substance * * *." Our comparison of these offenses and their elements leads us to conclude that they do not correspond "to such a degree that [the] commission of the one...