holding that "kidnapping may be said to be implicit within every forcible rape"Summary of this case from State v. Walton
Decided August 31, 1983.
Criminal law — Aggravated burglary and theft not allied offenses of similar import under R.C. 2941.25(A).
O.Jur 3d Criminal Law § 1055.
The elements of aggravated burglary, R.C. 2911.11(A), and theft, R.C. 2913.02(A), do not correspond to such a degree as to constitute allied offenses of similar import under R.C. 2941.25(A).
APPEAL from the Court of Appeals for Hamilton County.
On January 20, 1981, appellant, Gregory Mitchell, was indicted on two counts of aggravated burglary, violations of R.C. 2911.11, and two counts of theft, violations of R.C. 2913.02.
The evidence adduced at trial indicated that on December 11, 1980, at approximately 2:00 p.m., Fred D. Jones returned to his residence on Forest Park Drive in Cincinnati and discovered that it had been broken into. His and his wife's possessions were strewn about the home and several items were found to be missing including a mink coat, costume jewelry and a sock containing coins. Investigating officers also discovered a champagne bottle out of place and dusted it for fingerprints.
On December 19, 1980, at approximately 12:15 p.m., a Cincinnati police officer responded to a call on Lafayette Drive in Cincinnati, which had reported two suspicious black males with the hood of their car raised in front of the residence of Dr. Saul Benison. As the officer approached the scene, he heard two men running through the woods behind the Benison home. The officer signaled for assistance and one suspect, Kenneth George, was apprehended. The other suspect successfully fled the scene.
The Benison home had been broken into and ransacked. Among the items taken were a color television set, stereo speakers and a stereo receiver. A metal candy box inside the home was dusted for fingerprints.
The automobile abandoned in front of the house was towed to the police station and traced to the appellant. After obtaining a warrant to search the vehicle, police officers discovered that the trunk contained the items belonging to Dr. Benison.
On December 20, 1980, a Cincinnati police officer observed the appellant placing something into the trunk of an automobile. The officer found the car was registered to Mitchell and requested permission to search it. Appellant consented and the officer discovered the aforementioned items reported missing from the Jones' household. Appellant was placed under arrest and fingerprinted. His prints matched up with those lifted at both the Jones and Benison residences.
Appellant denied all involvement in either of the two incidents. It was his testimony that he had loaned his automobile to Kenneth George on the date of the Benison break-in. He further stated that the mink coat belonging to Mrs. Jones was innocently acquired by his cousin in a pool game and that appellant had won the jewelry in another pool game.
The jury found appellant guilty of all four counts. He was sentenced to serve consecutive terms of seven to twenty-five years on each count of aggravated burglary and concurrent sentences of one to five years on each remaining charge. Upon appeal, all convictions were affirmed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Ms. Janna L. Heltman, for appellee.
Mr. Robert R. Hastings, Jr., for appellant.
In a challenge predicated upon R.C. 2941.25, appellant contends that aggravated burglary and theft are allied offenses of similar import and that an accused may not be convicted of both where they arise out of a single incident. On this basis, appellant urges this court to set aside his two convictions for theft.
The authority relied upon by appellant, R.C. 2941.25, is Ohio's codification of the judicial doctrine of merger. State v. Thomas (1980), 61 Ohio St.2d 254 [15 O.O.3d 262]. That statute 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."
In applying this statute, the courts have employed a two-step analysis described in State v. Logan (1979), 60 Ohio St.2d 126 [14 O.O.3d 373]. 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 [14 O.O.3d 379]; State v. Logan, supra; State v. Donald (1979), 57 Ohio St.2d 73 [11 O.O.3d 242].
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.
In the case at hand, appellant was indicted for the offenses of aggravated burglary and theft. "Aggravated burglary" is defined in R.C. 2911.11 which provides in relevant part:
"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:
"(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
"(2) The offender has a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;
"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present."
"Theft" was defined in R.C. 2913.02 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."
It is apparent that these two offenses do have some common elements in that aggravated burglary may, as in this case, involve the purpose to commit a theft offense. It is noteworthy, however, that completion of the theft offense is not necessary and that the purpose to commit any felony will suffice to supply the requisite intent.
The most telling distinction, however, is the one expressed by the General Assembly in its definition of these two offenses. R.C. 2913.02 is geared toward prohibiting the nonconsensual taking of property by whatever means. Conversely, as is indicated by the Committee Comment to R.C. 2911.11, the main factor delineating the various species of breaking and entering is the relative risk of harm to persons. Aggravated burglary is classified as the most serious of these offenses precisely because it carries the greatest potential threat that an individual might be harmed. Unlike the offense of theft, it involves inflicting or attempting or threatening to inflict harm on another, the use of a deadly weapon or dangerous ordnance, or the intrusion into a permanent or temporary habitation of a person at a time in which any person is present or likely to be present.
In light of these facts, it is quite clear that the General Assembly intended to distinguish aggravated burglary and theft and make them separately punishable. Accordingly, we find that the elements of aggravated burglary, R.C. 2911.11(A), and theft, R.C. 2913.02(A), do not correspond to such a degree as to constitute allied offenses of similar import under R.C. 2941.25(A).
Based upon the foregoing, the judgment of the court of appeals is affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.