State v. Talley

• Decision Date: 10 July 1985
• Docket Number: No. 84-1676,84-1676
• Citation: 480 N.E.2d 439,18 OBR 210,18 Ohio St.3d 152
• Parties: , 18 O.B.R. 210 The STATE of Ohio, Appellant, v. TALLEY, Appellee.
• Court: Ohio Supreme Court

Page 152

18 Ohio St.3d 152

480 N.E.2d 439, 18 O.B.R. 210

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

No. 84-1676.

Supreme Court of Ohio.

July 10, 1985.

Syllabus by the Court

Pursuant to R.C. 2941.25, the offenses of breaking and entering, grand theft, and possessing criminal tools are not allied offenses of similar import inasmuch as these offenses have elements which do not correspond to such a degree that the commission of one offense will result in the commission of the other. Accordingly, inquiry into whether the crimes were committed with separate animus as to each is unnecessary. (State v. Mitchell [1983], 6 Ohio St.3d 416, 453 N.E.2d 593, followed.)

Tyrone Talley, appellee herein, was indicted on January 25, 1983 on a three-count indictment, charging violations of R.C. 2911.13 (breaking and entering), R.C. 2913.02 (grand theft), and R.C. 2923.24 (possessing criminal tools). A jury trial commenced on January 4, 1984.

During the trial, Charles Easton testified that on December 15, 1982, while looking out the window of his office, he saw two males hoisting another male into a slightly elevated window of a house he owned which was presently unoccupied. Easton further testified that he saw the other two then enter through the side door, and he immediately called police. While waiting for the police to arrive, Easton stated that he observed a hot water tank and a toilet being carried from the premises.

Police officer James Kurka testified that he saw appellee run from the house and enter the front passenger seat of a car parked next to the house. Kurka further testified that he covered Patrolman Watson as Watson opened the car door and that he (Kurka) observed appellee lying on the front seat. Appellee was then searched, handcuffed and placed in a police cruiser.

Officer Dale Watson corroborated Kurka's testimony and also testified that in conducting an inventory search of the car, he (Watson) found copper tubing and an air vent which he testified he believed came from the house.

A jury found appellee guilty on all three counts. Appellee was sentenced to consecutive terms of two to five years on each conviction.

Appellee appealed, asserting that "[i]t was prejudicial error for the trial court to fail to find that, on the instant facts, the offenses of breaking and entering, grand theft, and possession of criminal tools were not allied offenses of similar import." In a split decision, the court of appeals found appellee's argument to be well-taken, and it vacated the sentences and reversed the convictions for breaking and entering and possessing criminal tools. The court let stand the conviction and sentence for grand theft. Relying on the holding in State v. Baer (1981), 67 Ohio St.2d 220, 423 N.E.2d 432 , the court reasoned as follows: "* * * [Appellee] consummated a theft after breaking and entering into a residence. Even though the elements are distinguishable, * * * [appellee] acted with a single purpose of committing a theft. * * * [U]nder the facts of this case, * * * the offenses of breaking and entering and grand theft are allied." The court also concluded that the offenses of grand theft and possessing criminal tools are allied: "[t]he theft and the possession of criminal tools have a nexus in time, objective and animus."

Judge Parrino, in dissent, stressed that the respective crimes charged herein had distinguishable elements and purposes and, as such, they were not allied offenses.

This cause is now before the court pursuant to a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Richard Wiegand, Cleveland, for appellant.

William T. Doyle and Kenneth Callahan, Cleveland, for appellee.

DOUGLAS, Justice.

The issue presented is whether, under the facts of this case, the offenses of breaking and entering, grand theft, and possession of criminal tools are allied offenses of similar import, rendering sentencing following convictions on all three improper. This court holds that these offenses are not allied offenses of similar import and that sentencing on all three crimes was thus proper. Accordingly, the judgment of the court of appeals is hereby reversed.

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."

This court, in State v. Mitchell (1983), 6 Ohio St.3d 416, 418, 453 N.E.2d 593, employed a two-step analysis in determining whether two offenses are allied under R.C. 2941.25:

"In applying this statute, the courts have employed a two-step analysis described in State v. Logan (1979), 60 Ohio St.2d 126 . The first step requires a comparison of the elements with which the defendant is charged. Allied offenses of similar import are those offenses whose elements correspond to such a degree that the commission of one offense will result in the commission of the other. Id. at 128 . An illustration of this principle is rape, as defined by R.C. 2907.02(A)(1), and kidnapping, as defined by R.C. 2905.01(A)(4). A comparison of the elements of these two offenses reveals such a singularity of purpose and conduct that kidnapping may be said to be implicit within every forcible rape. State v. Price (1979), 60 Ohio St.2d 136 ; State v. Logan, supra; State v. Donald (1979), 57 Ohio St.2d 73 .

"In the event that the court finds the offenses being compared are allied offenses of similar import, it must proceed to the second step of analysis which is indicated under R.C. 2941.25(B). This level of inquiry involves a review of the defendant's conduct for a determination as to whether the offenses were committed separately or with a separate animus as to each. If the offenses were so committed, the defendant may be convicted of them all." ¹

Under Mitchell, then, the first step is to analyze the elements of each offense to determine if those elements correspond to such a degree that the commission of one offense will result in the commission of the other, i.e., to determine whether the offenses are allied offenses of a similar import.

R.C. 2911.13, breaking and entering, provides in part as follows:

"(A) No person[,] by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony.

"(B) No person shall trespass on the land or premises of another, with purpose to commit a felony."

The elements of this crime, as spelled out in The Ohio Criminal Law Handbook (4 Ed.1984) A-55, are as follows:

"Division (A):

"(1) With purpose to commit a theft offense or any felony therein

"(2) Trespass in unoccupied structure

"(3) By force, stealth, or deception

"(4) Venue[.]

"Division (B):

"(1) With purpose to commit a felony

"(2) Trespass on land or premises of another

"(3) Venue[.]"

R.C. 2913.02, theft, provides, in pertinent part, as follows:

"(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."

The Ohio Criminal Law Handbook at A-57 specifies the elements of theft as follows:

"(1) Knowingly obtain or exert control over property or services

"(2) With purpose to deprive the owner thereof

"(3)(a) Without consent of owner or person authorized to consent

"(or )

"(b) Beyond the scope of the express or implied consent of owner or person authorized to consent

"(or )

"(c) By deception

"(or )

"(d) By threat

"(4) Venue[.]"

And, R.C....