stating that "the proper disposition of matters involving allied offenses of similar import committed with a single animus is to merge the crimes into a single conviction" and instructing the trial court to merge the two convictions and allow the State to choose which conviction would remain for the purpose of sentencing
How later courts described this case
- stating that "the proper disposition of matters involving allied offenses of similar import committed with a single animus is to merge the crimes into a single conviction" and instructing the trial court to merge the two convictions and allow the State to choose which conviction would remain for the purpose of sentencing
- holding that R.C. 2903.12(A)(1) and (2) — two subdivisions of aggravated assault — are allied offenses because “[t]hese subdivisions set forth two different forms of the same offense, in each of which the legislature manifested its intent to serve the same interest— preventing physical harm to persons”
- “subdivisions (1) and (2) set forth two means of committing the offense”
- “these two alternate theories of aggravated assault”
Written by the judges who cited it.
The opinion
Lanzinger, J.,
concurring in judgment only.
{¶ 45} I disagree with the majority’s conclusion that the aggravated-assault violations of R.C. 2903.12(A)(1) and (A)(2) are allied offenses of similar import under R.C. 2941.25 because “the General Assembly did not intend [such violations] to be separately punishable when the offenses result from a single act undertaken with a single animus.” Majority opinion at ¶ 40. This statement is unnecessary and confusing in light of our most recent decision on allied offenses, State v. Cabrales, 118 Ohio St.3d 54 , 2008-Ohio-1625 , 886 N.E.2d 181 .
{¶ 46} This court clarified in Cóbrales that “[i]n determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.” Id. at paragraph one of the syllabus. The majority now asks whether the *457 General Assembly intended to serve the same “societal” interest in enacting the compared statutes and whether their violations were designed to be “separately punishable.” These questions are irrelevant, for R.C. 2941.25 shows that it does not apply to the circumstances before us. R.C. 2941.25 provides:
William D. Mason, Cuyahoga County Prosecuting Attorney, and Pamela Bolton, Assistant Prosecuting Attorney, for appellant and cross-appellee.
{¶ 47} “(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.
{¶ 48} “(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.” (Emphasis added.)
{¶ 49} The court of appeals in Brown’s case refused to engage in an analysis of allied offenses under R.C. 2945.25 because it concluded that such an analysis “is implicated only in a situation where the conduct by a defendant could be construed to constitute two or more offenses.” State v. Brown, Cuyahoga App. No. 87651, 2006-Ohio-6267 , 2006 WL 3446238 , ¶ 50. The court held that Brown’s two convictions for aggravated assault should have been merged into a single count for a very simple reason — Brown had committed only one act of assault. Id. at ¶ 51.
{¶ 50} I agree with the court of appeals that the problem of allied offenses is obviated when the defendant’s conduct involves a single act with a single animus, and the offenses charged are different forms of the same crime. In this situation, Brown’s conduct — stabbing Johnson once — could not be construed to constitute two or more offenses. The state indicted her on two separate counts that specified alternative means of committing the alleged act of aggravated assault (knowingly causing serious physical harm to Johnson, R.C. 2903.12(A)(1), and knowingly causing or attempting to cause physical harm to Johnson by means of a deadly weapon or ordnance, R.C. 2903.12(A)(2)). Both counts in the indictment related to a single act, committed with a single state of mind, and the single offense of aggravated assault.
{¶ 51} Brown could be convicted and sentenced on a single offense. I would adopt the reasoning of the court of appeals and therefore concur in judgment only.
Pfeifer, J., concurs in the foregoing opinion.
Robert L. Tobik, Cuyahoga County Public Defender, and David King and John T. Martin, Assistant Public Defenders, for appellee and cross-appellant.