finding no lesser included offense where defendant held up a store thus committing aggravated robbery, then shot the store clerk in a struggle thus committing felonious assault
How later courts described this case
- finding no lesser included offense where defendant held up a store thus committing aggravated robbery, then shot the store clerk in a struggle thus committing felonious assault
- aggravated robbery and felonious assault not allied offenses
Written by the judges who cited it.
The opinion
Per Curiam.
The only issue in this case is whether R.C. 2941.25, Ohio’s multiple-count statute, bars Preston’s conviction and sentencing for the crime of felonious assault under the facts of this case.
In State v. Barnes (1981), 68 Ohio St. 2d 13, 14 [ 22 O.O.3d 126 ], we stated: “We are mindful that this court in many recent cases, in varying situations, has made a thorough and extensive analysis of the multiple-counts statute, R.C. 2941.25. Another exhaustive exploration, distinguishing or considering the applicability of earlier precedents of this court, would not be judicially fruitful.” This statement is as true today as it was in 1981.
In determining whether the crimes of aggravated robbery and felonious assault are allied offenses of similar import, we must analyze the elements of each offense to determine if those elements “* * * correspond to such a degree that the commission of one offense will [automatically] result in the commission of the other. * * *” See State v. Talley (1985), 18 Ohio St. 3d 152 , syllabus.
Upon review of the record, we find that the commission of the aggravated robbery did not automatically result in the commission of the *66 felonious assault. Preston came into the market and committed aggravated robbery. Jones then knocked the gun from Preston’s hand and a struggle ensued. Preston retrieved his gun and committed a second crime, felonious assault, by pointing the gun at Jones and shooting him.
The judgment of the court of appeals is reversed to the extent it overruled Preston’s conviction and sentencing for felonious assault. It is affirmed in all other respects.
Judgment accordingly.
Celebrezze, C.J., Sweeney, Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur.