PUNISH ONCE, PUNISH TWICE:
OHIO’S INCONSISTENT INTERPRETATION OF ITS MULTIPLE COUNTS STATUTE
RICHARD R. PARSONS∗
It is a recognized goal of criminal law that a convicted defendant’s punishment be proportionate to the crime committed.1Ohio’s multiple counts statute, section 2941.25 of the Ohio Revised Code, represents the General Assembly’s attempt to ensure that Ohio’s criminal justice system honors that goal of proportionality. Unfortunately, the Ohio Supreme Court’s case law interpreting that statute has varied widely, leaving both practitioners and judges to wade through the morass that is Ohio’s multiple counts jurisprudence. It is unlikely that the even the court’s laudable but unsatisfying recent effort2to turn this morass into a wonderland of legal clarity will be successful.
The confusing area of Ohio’s multiple counts jurisprudence can be better understood through a concrete example. Consider a defendant who was found guilty and convicted of the crime of child endangering following the death of his son.3Because the child endangering misdemeanor resulted in the unintentional death of another, the defendant was found guilty and convicted of involuntary manslaughter.4
Copyright © 2008, Richard R. Parsons.
∗ Capital University Law School, J.D. 2007. B.A., Carleton College. In fond memory of Professor Max Kravitz. I feel exceedingly fortunate that to have had the opportunity to benefit from his tutelage and even more fortunate to have had the opportunity to simply know him. I would also like to thank Paula Brown for her useful comments on this Article in Max’s absence.
1See, e.g., Ohio Rev. Code § 2929.11(B) (LexisNexis 2006) (providing that the sentence imposed should be “commensurate with and not demeaning to the seriousness of the offender’s conduct”); 18 U.S.C. § 3553(a)(2)(A) (2006) (stating that the sentence should “provide just punishment for the offense”).
2State v. Cabrales, 886 N.E.2d 181 (Ohio 2008).
3See, e.g., OHIO REV. CODE ANN. § 2919.22(A) (LexisNexis 2006). The section reads, in part: “No person, who is the parent . . . of a child under eighteen years of age . . . shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” Id.
4See, e.g., OHIO REV. CODE ANN. § 2903.04(B) (LexisNexis 2006). The section reads, in part: “No person shall cause the death of another . . . as a proximate result of the offender’s committing or attempting to commit a misdemeanor of any degree . . . .” Id.
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Under a proper interpretation of the multiple counts statute, while the two guilty verdicts may stand, the two convictions cannot.5Instead, the defendant can only be convicted of either the unintentional killing of his son or the child endangering charge because child endangering is an “allied offense”6of involuntary manslaughter. To establish the involuntary manslaughter charge, the state must prove that the defendant caused the death of another as a result of committing the child endangering.7
Therefore, the state must prove every element of the child endangering offense to establish guilt for involuntary manslaughter. Thus, if convicted of both charges, the defendant is being punished twice for the child endangering charge, even if he is only being punished once for causing his son’s death.
The multiple counts statute, however, mandates that a defendant cannot be convicted of more than one “allied offense.” Unfortunately, exactly what constitutes an allied offense under Ohio law is anything but clear.8Indeed, over the last three decades, the Ohio Supreme Court’s multiple counts jurisprudence might even be described as schizophrenic.
At first, in State v. Logan,9the court provided a test where the elements of the offenses charged were to be compared to determine if the commission of one crime would necessarily result in the commission of the other.10If the commission of one offense resulted in the commission of the other, the offenses were merged, and the defendant could only be convicted of one.11The court’s opinions in the late 1970s and early 1980s suggested that this inquiry required a court to compare the elements of the offenses charged as applied to the facts of the particular case.12Under this analysis, our hypothetical defendant could not be convicted of both the
5OHIO REV. CODE ANN. § 2941.25(A) (LexisNexis 2006). Nowhere does the multiple counts statute prohibit a jury from finding a defendant guilty of multiple “allied offenses.” Id. Instead, the statute prohibits multiple convictions for such offenses. Id.
In addition, the sentence the defendant receives is irrelevant to the multiple counts inquiry. Thus, even if a defendant receives concurrent sentences for two “allied offense” convictions, he will have been twice convicted for the same conduct in violation of the statute. Id.
6OHIO REV. CODE ANN. § 2941.25(A) (LexisNexis 2006).
7See, e.g., OHIO REV. CODE ANN. § 2903.04(B) (LexisNexis 2006).
8See infra Sections II & IV.
9397 N.E.2d 1345 (Ohio 1979).
10Id. at 1348.
11Id. at 1349.
12Id. at 1348; see also State v. Donald, 386 N.E.2d 1341 (Ohio 1979).
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child endangering and involuntary manslaughter charges because, as applied to the facts of his case, the child endangering charge was a necessary element of the involuntary manslaughter charge. That is, the prosecution would have to prove all of the elements of child endangering to prove the involuntary manslaughter charge.
However, later opinions in the 1980s and the early 1990s adopted a more restrictive approach to multiple counts analysis, suggesting that the Logan inquiry required a court to compare the elements of the offenses charged in the abstract.13Under this approach, our defendant could be convicted of both charges because the child endangering charge is not a necessary element of the involuntary manslaughter charge.14Rather, the involuntary manslaughter charge requires proof only of the commission of a misdemeanor that resulted in the death of another.15Child endangering is but one of many misdemeanors that a prosecutor could prove, in the abstract, to demonstrate culpability for involuntary manslaughter.16Still, the court did not consistently adhere to one approach or the other, as demonstrated by its sporadic return to the fact-based inquiry during the 1990s.17This inconsistency led to disharmony among Ohio’s appellate courts.18
If these two approaches to Ohio’s multiple counts statute were not enough, additional opinions of the court conflated federal double jeopardy analysis and multiple counts analysis, leaving the impression that section 2945.41’s protection is coextensive with double jeopardy’s protections.19
Yet other opinions of the court used a transactional approach to determine whether two offenses should merge.20Under this approach, a defendant could only be convicted for one offense that arises out of a discrete unit of
14Bickerstaff, 461 N.E.2d at 896.
15OHIO REV. CODE. ANN. § 2903.04(B) (LexisNexis 2006).
16OHIO REV. CODE ANN. § 2919.22(E)(2)(a) (LexisNexis 2006).
18See Rance, 710 N.E.2d at 704 (citing numerous cases to demonstrate the disharmony among the appellate courts).
20See, e.g., State v. Roberts, 405 N.E.2d 247 (Ohio 1980).
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conduct.21Perhaps, then, the most apt term to describe the Ohio’s Supreme Court’s multiple counts jurisprudence is “accordion-like.”
In State v. Rance, though, the court purported to reconcile its confusing precedent by deciding once and for all that the elements of offenses should be compared in the abstract to determine whether the offenses merge.22
However, Ohio Supreme Court cases subsequent to Rance, such as State v. Fears, analyzed the application of section 2941.25 without reference to Rance.23Thus, lower courts were left to deal with the same state of confusing precedent as existed before Rance.24
Recognizing that Rance had led to “inconsistent, unreasonable, and, at times, absurd results,” the Ohio Supreme Court recently handed down the decision in State v. Cabrales25to attempt to rectify confusion left behind in Rance’s wake.26While Cabrales, might have clarified one problem caused by Rance,27the opinion nevertheless continues to adhere to the Rance test, thereby failing to properly effectuate the legislative intent behind the enactment of section 2945.21. Therefore, further refinement of Ohio’s multiple counts jurisprudence remains necessary.
The resolution of the issues surrounding the proper application of Ohio’s multiple counts statute is paramount, given that individual liberty and freedom are at stake every time a court interprets the strictures of section 2941.25. Indeed, statutes similar to section 2941.25 have been enacted in other states because legislatures are “cognizant of the fact that the sovereign has demonstrated a tendency to over-indict and...