Court Rules Kidnapping and Aggravated Robbery Are ‘Allied Offenses’ That Must Be Merged for Sentencing
2007-1842. State v. Winn, Slip Opinion No. 2009-Ohio-1059.
Montgomery App. No. 21710, 173 Ohio App.3d 202, 2007-Ohio-4327. Judgment affirmed.
Pfeifer, Lundberg Stratton, O'Donnell, and Lanzinger, JJ., concur.
Moyer, C.J., and O'Connor and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1059.pdf 
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(March 17, 2009) In a decision announced today, the Supreme Court of Ohio held that, because the use of a deadly weapon in the commission of a robbery constitutes the use of “force or threat” to “restrain the liberty” of the robbery victim(s), when a criminal defendant is found guilty of both kidnapping and aggravated robbery arising from the same incident, the two charges must be merged into a single conviction subject to a single sentence.
The Court’s 4-3 decision, authored by Justice Judith Ann Lanzinger, affirmed a ruling by the 2nd District Court of Appeals.
Ohio’s “multiple-count” statute, R.C. 2941.25, requires that when a defendant is charged with “allied offenses of similar import” based on the same conduct, and both crimes were committed with the same animus (unlawful purpose), if a trial court finds that the defendant committed both crimes, the court must merge the charges into a single conviction and impose a single sentence based on that conviction.
In this case, Davon Winn of Dayton was charged with kidnapping, aggravated robbery and several other offenses based on his involvement in a January 2006 home-invasion incident. Winn and two co-defendants broke into the apartment of an acquaintance to steal what they believed was a cache of drugs and/or money hidden there. They unexpectedly encountered the acquaintance’s grandmother, with whom he lived. The defendants confronted the grandmother at gunpoint, forced her to go to her bedroom and lay on the bed with a pillow over her head, and demanded that she tell them where the money was hidden. While Winn and his accomplices were still in the apartment, police, who had been summoned by a neighbor, arrived and arrested them. Winn was convicted and sentenced on separate counts of kidnapping, aggravated robbery and aggravated burglary, all with firearm specifications.
Winn appealed, asserting among other claims that the trial court erred when it failed to merge the kidnapping and aggravated robbery counts into a single conviction and sentence, because those two crimes are “allied offenses of similar import” and were committed with the same animus. Citing a 1978 decision of the Supreme Court of Ohio, State v. Logan, the 2nd District Court of Appeals agreed with Winn’s argument that the offense of kidnapping is implicit in the commission of an aggravated robbery. The court of appeals remanded the case to the trial court with a directive that the two charges be merged into a single conviction and that Winn be resentenced accordingly. Attorneys for the Montgomery County prosecutor’s office, supported by an amicus curiae (friend of the court) brief filed by the Ohio Attorney General’s office, sought and were granted Supreme Court review of the 2nd District’s ruling.
Writing for the majority in today’s decision, Justice Lanzinger noted that prior court decisions have established a two-part test that must be applied in determining whether two crimes are “allied offenses of similar import.” Quoting from this Court’s 2008 decisions in State v. Brown and State v. Cabrales, Justice Lanzinger wrote: “‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant’s conduct is reviewed to determine whether the defendant can be convicted of both offenses. ... ’”
Because the state did not challenge the appellate court’s determination that Winn did not commit the crimes with separate animus, she explained, the only issue to be decided in this case is whether the statutory elements of those two offenses are such that committing one crime results in the commission of the other.
Justice Lanzinger observed that the state law defining the offense of kidnapping (R.C. 2905.01) states that no person “by force, threat or deception ... shall remove another from the place where the other person is found or restrain the liberty of the other person ... to facilitate the commission of any felony or flight thereafter.” She then compared those elements to the statutory definition of aggravated robbery in R.C. 2911.01, which states that no person “in attempting or committing a theft offense” shall “(h)ave a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.”
“It is difficult to see how the presence of a weapon that has been shown or used, or whose possession has been made known to the victim during the commission of a theft offense, does not also forcibly restrain the liberty of another,” wrote Justice Lanzinger. “These two offenses are ‘so similar that the commission of one offense will necessarily result in commission of the other.’ They meet the test for allied offenses as it was refined by Cabrales.”
While acknowledging the state’s suggestion of possible situations in which a person committing or attempting to commit a robbery could display or indicate possession of a weapon without “restraining the liberty” of his victim, Justice Lanzinger rejected the argument that those hypothetical scenarios are a sufficient basis to find that kidnapping and aggravated robbery are not “allied offense” subject to merger. “These examples lapse into the strict textual comparison (of statutory elements) that this court rejected in Cabrales,”wrote Justice Lanzinger. “We would be hard pressed to find any offenses allied if we had to find that there is no conceivable situation in which one crime can be committed without the other.”
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Terrence O’Donnell.
Chief Justice Thomas J. Moyer entered a dissenting opinion, joined by Justices Maureen O’Connor and Robert R. Cupp, in which he disagreed with the majority’s conclusion that the possible scenarios suggested by the state were insufficient to disqualify kidnapping and aggravated robbery as allied offenses that must be merged for sentencing.
“There are a number of instances in which an aggravated robbery can be committed without a kidnapping being committed,” wrote the Chief Justice. “ (1) a pickpocket points a gun at the victim, but the victim does not know he is a victim of theft, and therefore suffers no restraint of his liberty; (2) a purse-snatcher, with a gun in hand, simply grabs the purse and runs without restricting the victim’s freedom; and, (3) altering the facts of this case, the defendant and his accomplices enter the apartment while the victim is still sleeping, and the gunman merely points the gun at the victim in case she awakes as the others ransack the apartment. These hypothetical but likely examples demonstrate that one does not necessarily commit a kidnapping when committing an aggravated robbery. ... I would reverse the judgment of the court of appeals and hold that kidnapping and aggravated robbery are not allied offenses of similar import because aggravated robbery can be committed without necessarily committing kidnapping.”Contacts
Jill R. Sink, 937.225.5757, for the state and Montgomery County prosecutor’s office.
Jeremy J. Masters, 614.466.5394, for Davon Winn.