Ohio Supreme Court on "allied offenses"/"lesser included offenses"

The Ohio Supreme Court released two decisions Tuesday, between the two of which reasoned that while a defendant cannot be convicted with two "allied offenses of similar import," he could be charged with a "lesser included offense" for which he had not been indicted.

In State v. Harris, 2007-1812, the Court held that "the crime of robbery, as defined in R.C. 2911.02(A)(2), and aggravated robbery, as defined in R.C. 2911.01(A)(1), were 'allied offenses of similar import' and therefore a defendant could not be convicted of both offenses when both were committed with the same animus (wrongful purpose) against the same victim, and that felonious assault as defined in R.C. 2903.11(A)(1) and felonious assault as defined in R.C. 2903.11(A)(2) were also allied offenses of similar import, and therefore a defendant couldn't be convicted of both of those offenses when both are committed with the same animus against the same victim." The reasoning in both instances being Ohio's multiple-count statute, ORC §2941.25. Justice Evelyn Lundberg Stratton cited that language, which provides: "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." [ Court Summary ]

Justice Stratton, in writing the majority opinion, cited the Court's 2008 decision in State v. Cabrales, in which it clarified its 1999 holding in State v. Rance with regard to how courts should determine whether two criminal charges against a defendant are "allied offenses" that must be combined into a single conviction. "(I)n Cabrales," Justice Stratton wrote, "we held that even though the elements of possession of a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(2) ('knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance') did not exactly align, the crimes were, nevertheless, allied offenses of similar import because trafficking in a controlled substance necessarily results in possession of the same controlled substance."

"With regard to Harris' separate convictions for felonious assault, Justice Stratton cited a 2008 decision in which the Supreme Court addressed the same legal question. "In State v. Cotton," she wrote "the defendant stabbed one victim, three times. He was convicted of felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2). The trial court imposed sentences for both convictions. The court of appeals affirmed. We reversed the judgment of the court of appeals in Cotton on the authority of State v. Brown (2008) holding that felonious assaults in violation of R.C. 2903.11(A)(1) and (2) are allied offenses of similar import under R.C. 2941.25(A). ... On the authority of Cotton, we affirm that convictions for felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim."


The Court's unanimous decision in State v. Evans, 2008-0363, the Court clarified its 1988 ruling in State v. Deem by stating that, in determining whether an offense is a lesser included offense of another, a court must consider (1) whether one offense carries a greater penalty than the other; (2) whether some element of the greater offense is not required to prove commission of the lesser offense; and (3) whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed. [ Court Summary ]

Here, writing for the Court, Justice O’Donnell noted that R.C. 2945.74 provides that a criminal defendant may be found guilty of a lesser included offense even though the lesser offense was not separately charged in the indictment. "Lesser included offenses need not be separately charged in an indictment, because when an indictment charges a greater offense, it 'necessarily and simultaneously charges the defendant with lesser included offenses as well,'" wrote Justice O’Donnell. "Thus, a conviction for a lesser included offense does not deprive an offender of his constitutional right to presentment or indictment by the grand jury, because by indicting the offender for the greater offense, the jury has necessarily considered each of the essential elements of the lesser offense."