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holding that "where the provisions are allied offenses of similar import, then the prosecution may charge on and try both, but the defendant may be sentenced upon his or her conviction for only one of the offenses"
Summary of this case from STATE v. HIKEOpinion
No. 89-812
Submitted April 11, 1990 —
Decided June 27, 1990.
Criminal law — Statutory construction — R.C. 2903.04(B) is a general provision while R.C. 2903.06 and 2903.07 are special provisions — Determining prosecutor's ability to charge on general and special provisions under R.C. 1.51 — Prosecution may charge only on the special provision, when.
O.Jur 3d Criminal Law §§ 1793, 1795.
1. R.C. 2903.04(B), which pertains to the commission of a misdemeanor that proximately causes the death of another, is a general provision. R.C. 2903.06 and 2903.07, which pertain to recklessly or negligently causing the death of another while operating a specified vehicle, are special provisions.
O.Jur 3d Statutes §§ 128, 129, 130.
2. Where it is clear that a general provision of the Criminal Code applies coextensively with a special provision, R.C. 1.51 allows a prosecutor to charge on both.
3. Where it is clear that a special provision prevails over a general provision or the Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a prosecutor may charge only on the special provision.
CERTIFIED by the Court of Appeals for Warren County, No. CA88-07-054.
On August 4, 1987, defendant-appellee Scott Chippendale went to Palmer David Whitt's home with Mark Scott. The three decided to go swimming in the Little Miami River, at Caesar's Creek, with two other friends, Joel Moreland and Todd Morris. On the way to Caesar's Creek the group stopped to buy a case (twenty-four) and a six-pack of beer. Chippendale drove the group to a parking spot where he left his 1980 white and blue Dodge pickup truck. They walked down together to Caesar's Creek, arriving at about 2:30 p.m. Chippendale testified at trial that he consumed four or five beers and also worked on a swing pulley system while at Caesar's Creek.
At approximately 4:30 or 5:00 p.m. it began raining, so the boys returned to Chippendale's parked pickup truck. At approximately 6:00 p.m., the boys left the parking area in Chippendale's truck. The party eventually approached the intersection of U.S. Route 42 and Middletown Road, driving westbound on Middletown Road. Chippendale was unable to stop in time to prevent his truck from going through a stop sign into this intersection, and striking a northbound light blue 1983 Toyota Corolla that contained Hobert Baker and Winifred Baker, his wife who was seven months pregnant. As a result of this collision, Mrs. Baker was thrown approximately twenty-five to thirty feet from the Toyota. She died as a result of her injuries. The baby was delivered successfully on that day.
Sergeant Douglas Keiter of the State Highway Patrol arrived on the scene, spoke with Chippendale, and detected the odor of alcohol on him. When Keiter asked Chippendale how much Chippendale had had to drink, Chippendale initially answered, "Nothing," then amended his answer to, "Well, three to four beers earlier."
Keiter also testified that Middletown Road east of the intersection was in generally good condition for a country road and that he did not detect any oil on that section of roadway. Keiter also commented on a "faint grinding type of a pavement scratching" on the westbound lane of Middletown Road, running in the intersection, into the northbound lane of U.S. Route 42, indicating recent braking action.
Soon after the accident Chippendale was taken to Middletown Hospital where he was given his rights and then questioned by Trooper Dennis Gorski of the State Highway Patrol. Chippendale submitted to a blood-alcohol test at approximately 8:30 p.m.; the results indicated Chippendale's blood-alcohol level at the time of testing was .11 percent. Toxicologist Leonard J. Porter testified that the two-hour delay between the accident and the time the sample was taken could only have decreased the amount of alcohol in Chippendale's bloodstream. Porter also stated that at the time of the accident Chippendale's blood-alcohol percentage would have been .03 higher. Lieutenant Blaine Keckley of the State Highway Patrol crime laboratory declared that a lack of refrigeration during the transit of the sample could have caused a drop in the amount of alcohol in the blood sample if the container had not been tightly sealed.
On September 14, 1987, Chippendale was indicted for one count of involuntary manslaughter, a third degree aggravated felony, R.C. 2903.04(B), and one count of aggravated vehicular homicide, a fourth degree felony, R.C. 2903.06. A jury trial was held on May 16 and 17, 1988, after which Chippendale was convicted of involuntary manslaughter and vehicular homicide, R.C. 2903.07, a lesser-included offense of aggravated vehicular homicide. Chippendale was sentenced on June 28, 1988 for involuntary manslaughter and received two to ten years in the Ohio State Reformatory, which was suspended on the condition that he go through five years' probation, be incarcerated for six months in the Warren County Jail, and have his driving privileges suspended for five years.
Aggravated vehicular homicide is now an aggravated felony of the third degree, the same as involuntary manslaughter under R.C. 2903.04(B).
Chippendale appealed his conviction for involuntary manslaughter and his sentence to the Court of Appeals for Warren County, which reversed the conviction and sentence based upon our decision in State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818. The court of appeals stated that the specific statutory provisions of aggravated vehicular homicide, R.C. 2903.06, and vehicular homicide, R.C. 2903.07, must prevail over the more general provision of involuntary manslaughter, R.C. 2903.04. That court so held because it believed R.C. 1.51 (entitled "Special or local provision prevails over general; exception") clearly mandated that special provisions under these circumstances must prevail over a general provision when an irreconcilable conflict arises between these provisions. The court remanded for sentencing on the vehicular homicide conviction, since Chippendale had not appealed that conviction.
Finding its decision to be in conflict with the decision of the Court of Appeals for Clark County in State v. Davis (1983), 13 Ohio App.3d 265, 13 OBR 329, 469 N.E.2d 83, the court of appeals certified the record of the case to this court for review and final determination.
Timothy A. Oliver, prosecuting attorney, and Carolyn A. Benninghoff, for appellant.
Ruppert, Bronson, Chicarelli Smith Co., L.P.A., and James D. Ruppert, for appellee.
Gregory A. White, urging reversal for amicus curiae, Ohio Prosecuting Attorneys Association.
This case presents the question of whether the state may charge and try a defendant for both involuntary manslaughter under a general provision, and aggravated vehicular homicide under a special provision. We answer this question in the affirmative, as the manifest legislative intent is that the two statutes be enforced coextensively. We therefore reinstate the decision and sentence of the Court of Common Pleas of Warren County.
I
It is a well-established principle of statutory construction that specific statutory provisions prevail over conflicting general statutes. Volpe, supra, at 193, 527 N.E.2d at 820. In recognition of this principle, the General Assembly enacted R.C. 1.51, which deals with the proper application of general and special or local provisions, and reads:
"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail."
Thus, it is critical in the first instance to determine whether the statutes upon which the prosecution seeks to proceed are general, special or local. If the statutes are general and do not involve the same or similar offenses, then R.C. 1.51 is inapplicable.
However, if one of the statutes is general and one specific and they involve the same or similar offenses, we must then ask whether the offenses constitute allied offenses of similar import. to be allied offenses, "* * * the elements of the offenses [must] correspond to such a degree that the commission of one crime will result in the commission of the other * * *." Newark v. Vazirani (1990), 48 Ohio St.3d 81, 549 N.E.2d 520, syllabus. If we are treating allied offenses, then, according to R.C. 2941.25(A), "the indictment or information may contain counts for all such offenses, but the defendant may be convicted of [that is, sentenced on] only one." There is only one exception to this rule: "* * * If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of [that is, sentenced on] both offenses." Vazirani, supra, at the syllabus; R.C. 2941.25(B). Indeed, statutes falling under this single exception would be outside the purview of R.C. 1.51, as we are viewing several offenses with different time frames or separate animuses.
To summarize, R.C. 1.51 comes into play only when a general and a special provision constitute allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime. When this is the case, we must proceed with our analysis of R.C. 1.51.
Where it is clear that a general provision of the Criminal Code applies coextensively with a special provision, R.C. 1.51 allows a prosecutor to charge on both. Conversely, where it is clear that a special provision prevails over a general provision or the Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a prosecutor may charge only on the special provision. The only exception in the statute is where "* * * the general provision is the later provision and the manifest intent is that the general provision prevail." Thus, unless the legislature enacts or amends the general provision later in time and manifests its intent to have the general provision apply coextensively with the special provision, the special provision must be the only provision applied to the defendant.
II
Having laid out the proper framework to analyze general and special provisions, we turn to Chippendale's specific situation. Chippendale, as stated, was charged with involuntary manslaughter, R.C. 2903.04(B), and with aggravated vehicular homicide, R.C. 2903.06.
R.C. 2903.04(B), which pertains to the commission of a misdemeanor that proximately causes the death of another, is a general provision. On the other hand, R.C. 2903.06 and 2903.07, which pertain to recklessly or negligently causing the death of another while operating a specified vehicle, are special provisions. It is clear that the general provision, R.C. 2903.04(B), and the special provision, R.C. 2903.06(B), both deal with the same course of conduct.
R.C. 2903.04(B) states:
"No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor."
R.C. 2903.06 states:
"No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall recklessly cause the death of another."
Therefore we must proceed to the second step in our analysis and determine whether R.C. 2903.04(B) and 2903.06 are allied offenses of similar import. In State v. Davis (1983), 13 Ohio App.3d 265, 270, 13 OBR 329, 334, 469 N.E.2d 83, 88, the Court of Appeals for Clark County dealt with this question and applied our holdings on facts quite similar to the facts in this case. The court in Davis said:
"In the present matter the conduct involved was that of the defendant immediately prior to the collision. R.C. 2903.06, aggravated vehicular homicide, requires the reckless operation of a motor vehicle resulting in the death of another. Consequently, the defendant must be recklessly operating his vehicle, which is of itself a misdemeanor. Thus, a violation of R.C. 2903.06 will of necessity result in the violation of R.C. 2903.04(B), involuntary manslaughter. Consequently we conclude the two crimes are of similar import."
We agree and next ask whether the allied offenses with which Chippendale was charged were committed separately in time or with a separate animus for each offense under R.C. 2941.25(B). It is beyond dispute that the offenses with which Chippendale was charged occurred at one moment in time, the moment the accident occurred. Indeed the jury found that Chippendale was at that moment operating a motor vehicle negligently and that such conduct was the proximate cause of the death of Mrs. Baker, whose fatal injuries occurred at that moment. It is also clear that Chippendale had only one intent or animus during this rapid series of events.
Since the offenses for which Chippendale was charged are allied offenses that occurred in one series of events and with one animus, we must now determine the effect of R.C. 1.51 on the general and special provisions with which Chippendale was charged. As we stated earlier, where a general and a special provision cover the same conduct, the legislature may expressly mandate that such provisions are to run coextensively. Volpe, supra; R.C. 1.51. In fact, the legislative history of R.C. 2903.04 manifests such an intent. Before amendment, the section of the House Bill that dealt with involuntary manslaughter, then R.C. 2903.05(B), specifically excluded aggravated vehicular homicide and vehicular homicide from constituting offenses under that section. Sub. H.B. No. 511, 109th General Assembly (1972), quoted in Goldsmith, Involuntary Manslaughter: Review and Commentary on Ohio Law (1979), 40 Ohio St. L.J. 569, 573, footnote 31. As the court in State v. Davis, supra, at 269, 13 OBR at 333, 469 N.E.2d at 88, noted, the legislature, in enacting the final version of the involuntary manslaughter section, at R.C. 2903.04, removed this vehicular exemption. The court in Davis was quite correct in stating that the legislature declined to take advantage of this perfect opportunity to exclude vehicular deaths from the ambit of R.C. 2903.04. Id. at 270, 13 OBR at 334, 469 N.E.2d at 88. We now hold that the court in Davis and those courts adopting its position were correct in declaring that the legislature clearly intended "* * * to permit a charge of manslaughter against persons involved in vehicular fatalities despite the more specific provisions for aggravated vehicular and vehicular homicide." Id.
Therefore the court of appeals in this case erred when it rejected the reasoning of the court of appeals in Davis and of those courts adopting the Davis court's reasoning. The court of appeals further erred when it failed to properly apply our decision in State v. Volpe, supra. These errors led the court of appeals to incorrectly reverse Chippendale's conviction and sentence on involuntary manslaughter.
Clearly, Chippendale's case involves a manifest legislative intent to have the general and special provisions at issue applied coextensively. Conversely, Volpe, supra, involved the legislature's manifesting an intent to have a special provision (prohibiting possession and control of a gambling device, R.C. 2915.02[A][5]), prevail over a general provision (prohibiting possession and control of criminal tools, R.C. 2923.24).
It is true that in Volpe, supra, at 193, 527 N.E.2d at 820, we said that where two different statutes "* * * provide for different penalties for the same conduct, they cannot be construed to give effect to both." This is a correct statement of the law when the legislature has expressed its intent that a special provision prevail over a general one, as was the case in Volpe, supra. Additionally, we now hold that where the legislative intent is manifest that general and special provisions be applied coextensively and where the provisions are allied offenses of similar import, then the prosecution may charge on and try both, but the defendant may be sentenced upon his or her conviction for only one of the offenses.
We note finally that this holding is consistent with United States Supreme Court pronouncements in this area. That court, in United States v. Batchelder (1979), 442 U.S. 114, dealt with several federal statutes and penalties, each prohibiting a previously convicted felon from receiving a firearm that had traveled in interstate commerce. The court stated:
"* * * [T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. * * *" Id. at 125.
The court of appeals erred in holding that the legislature expressed an intent to have the offense of aggravated vehicular homicide prevail over the offense of involuntary manslaughter. Thus, we find that under R.C. 2941.25, the prosecution properly charged Chippendale under both of these offenses and the trial court properly sentenced Chippendale on only one of these offenses, albeit on the offense carrying a greater penalty.
The decision of the court of appeals is reversed and the decision and sentence of the court of common pleas are reinstated.
Judgment reversed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS and RESNICK, JJ., concur.
H. BROWN, J., dissents.
The majority opinion correctly notes that "'a violation of R.C. 2903.06 [aggravated vehicular homicide] will of necessity result in a violation of R.C. 2903.04(B), involuntary manslaughter.'" However, it fails to note that violation of R.C. 2903.07, vehicular homicide, produces the same result. R.C. 2903.07(A) provides:
"No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall negligently cause the death of another." (Emphasis added.)
The negligent operation of a motor vehicle will almost always be a misdemeanor. See, e.g., Stout v. Ellinger (1951), 154 Ohio St. 418, 43 O.O. 346, 96 N.E.2d 249 (failure to obey a stop sign in violation of predecessor to R.C. 4511.43 is negligence per se). Therefore, where a person causes the death of another by negligently operating a motor vehicle, he will be guilty of both involuntary manslaughter, R.C. 2903.04, and vehicular homicide, R.C. 2903.07.
In enacting the vehicular homicide statutes, the General Assembly made a clear distinction between reckless and negligent conduct. R.C. 2903.06, which requires a mens rea of recklessness, was a fourth degree felony; while R.C. 2903.07, which requires only negligence, was (and is) a first degree misdemeanor. Yet, under the majority's interpretation, both kinds of conduct may, at the prosecutor's option, be converted to a third degree felony by charging the offender under R.C. 2903.04(B). Thus, the majority has written the legislature's distinction out of the law. Our duty is to harmonize the law, not to rewrite it.
The distinction between aggravated vehicular homicide and vehicular homicide is critical in the instant case, since appellee was found not guilty of aggravated vehicular homicide, but guilty of vehicular homicide as a lesser-included offense. Thus, the majority has wiped out the finding in defendant's favor by a jury.
Accordingly, I would affirm the judgment of the court below.