State v. Clay ( 1983 )

I concur in the conclusion that the judgment of the trial court should be affirmed in this case, but for different reasons.

The purpose of R.C. 2945.71 is a speedy trial, not necessarily a speedy charge in every conceivable situation. The state should not be absolutely foreclosed from bringing a charge of a crime of separate animus even if it stems from the same factual occurrence. The same factual occurrence approach results in an expanded application of R.C. 2945.71. The general statute of limitations adequately serves due process in this regard. Therefore, the ends of justice would be better served here if the test in a multiple crime occurrence would turn on a rationale of separate animus, rather than on which or what charge or charges were filed first, by whom and where they were brought, and whether they were of felony or misdemeanor character resulting from the same factual happenings.

Another salient reason to reinforce this logic is that the state might not have developed the evidence to a sufficient stage to file a given charge, even if it stems from the same factual basis, when it involves a completely different offense. Experience suggests that this occurrence is made more probable in a situation involving an offense of dissimilar import.

In this case, the result would be the same whether the approach in People v. Parker (1978), 59 Ill. App.3d 302, 375 N.E.2d 465, or a separate animus test would apply. This occurs because of the rationale expressed by the Ohio Supreme Court in its syllabus inState v. Donald (1979), 57 Ohio St.2d 73 [11 O.O.3d 242]:

"Kidnapping, as defined by R.C. 2905.01(A)(4), is an `offense of similar import' to rape, as defined by R.C. 2907.02(A)(1), for purposes of application of R.C. 2941.25(A)."

No issue has been raised here that the alleged abduction and sexual crimes were committed separately.

Further, under the principles for the determination of a lesser and included offense, abduction is a lesser included offense of kidnapping, when the determining criteria are applied: first, severity of penalty, Barber v. State (1884), 39 Ohio St. 669; second, comparison of the elements of the offenses, State v.Hreno (1954), 162 Ohio St. 193 [55 O.O. 97]; third, that the lesser offense be of the same general character as the offense charged, State v. Kuchmak (1953), 159 Ohio St. 363 [50 O.O. 327]; and fourth, that the evidence in the given case supports the application of the lesser offense, State v. Nolton (1969),19 Ohio St.2d 133 [48 O.O.2d 119], and State v. Eaton (1969),19 Ohio St.2d 145 [48 O.O.2d 188].

Thus, the holding of State v. Donald, supra, would also apply to the charge of abduction here as a lesser offense, which in essence then is an offense of similar import or animus for these purposes.

This approach is consistent with the conclusion reached by the Ohio Supreme Court in State v. Ladd (1978), 56 Ohio St.2d 197 [10 O.O.3d 363].

For these reasons, I would affirm the judgment of the trial court.