Merger of Allied Offenses can save the day.

In 2010, the Ohio Supreme Court revisited the definition and application of the allied offenses concept. In State v. Johnson, 2010-Ohio-6314, the Court reviewed the prior law from State v. Rance (1999), 85 Ohio St.3d 632, and concluded that the Rance standard was unworkable. The concept of "allied offenses of similar import" has its origins in the concept of merger and is codified in R.C. 2941.25. Do not underestimate its importance as the concept is designed to protect against a Double Jeopardy violation where a person is sentenced twice for what is in essence the same offense.

The Court went on to expressly overrule Rance. Impressively, the Court explained that the broad purpose of the allied offenses concept "ought not be watered down with artificial and academic equivocation regarding the similarities of the crimes. When 'in substance and effect but one offense has been committed,' the defendant may be convicted of only one offense." Id. para. 43. With that, here is precisely the test adopted by the Court:

[T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., Aa single act, committed with a single state of mind.@ * * *

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

In addition to looking at the elements of the charges themselves, applying this Johnson test to the indicted offenses is critical to any defense preparation or plea negotiations.  If you fail to apply this test during plea negotiations, you and your client may accept a fools bargain.  Moreover, if you are planning a trial strategy, you may legitimately design a defense that leaves the Court with the conclusion that it is duty bound to merge any guilty counts. 

Although Johnson was a 2010 case, most courts of appeals have looked at it a few times.  Watch carefully in that your allied offenses analysis can fail if there is strong contextual evidence supporting a separate animus for each charge.  Black's Law defines animus as generally intention, design, or will and the Ohio Supreme Court has interpreted animus "to mean >purpose or, more properly, immediate motive,= and infers animus from the surrounding circumstances.@ State v. Shields, 2011BOhioB1912, & 16, quoting State v. Logan (1979), 60 Ohio St.2d 126, 131.  Animus is just a terrible term to use in the criminal context as the whole of criminal law and the underlying offenses themselves speak to intend and purpose.  There really is no remarkable case law providing any real guidance on the animus aspect of the analysis although it has been described as "[w]here an individual's immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori, [sic] commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.@ State v. Beverly, 2013‑Ohio‑1365.