DocketNumber: Nos. 2007-0595 and 2007-0651
Citation Numbers: 118 Ohio St. 3d 54, 886 N.E.2d 181
Judges: Connor, Cupp, Donnell, Fain, Lanzinger, Moyer, Pfeifer, Second, Stratton
Filed Date: 4/9/2008
Status: Precedential
Modified Date: 10/18/2024
I. Introduction
{¶ 1} The issue before the court is whether possession of a controlled substance under R.C. 2925.11(A), trafficking in a controlled substance under R.C.
II. Facts
{¶ 2} Defendant, Fernando Cabrales, a California resident, hired James Longe-necker and Sean Matthews to transport marijuana from California to Cincinnati, Ohio, for the purpose of selling it. Once the two entered Ohio, a Hamilton County deputy sheriff stopped Matthews and Longenecker because of Matthews’s erratic driving. During the traffic stop, the deputy discovered the marijuana in their vehicle and arrested both men. Longenecker and Matthews implicated Cabrales, whom the state charged with possession of marijuana under R.C. 2925.11(A), trafficking in marijuana under R.C. 2925.03(A)(1), trafficking in marijuana under R.C. 2925.03(A)(2), and conspiracy. A jury convicted Cabrales on all four counts, and he was sentenced accordingly.
{¶ 3} On appeal, Cabrales argued that possession and the two counts of trafficking in marijuana were all allied offenses of similar import committed with the same animus, and therefore these offenses merged.
{¶ 4} The court of appeals held that possession of a controlled substance under R.C. 2925.11(A) (“knowingly obtain, possess, or use a controlled substance”) and trafficking in a controlled substance under R.C. 2925.03(A)(1) (“knowingly * * * [s]ell or offer to sell a controlled substance”) are not allied offenses of similar import, because a person can possess a controlled substance without selling or offering to sell it and, conversely, a person can sell or offer to sell a controlled substance without possessing it by selling it through a middleman. State v. Cabrales, Hamilton App. No. C-050682, 2007-Ohio-857, 2007 WL 624995, ¶ 35.
{¶ 5} The court also held that trafficking in a controlled substance under R.C. 2925.03(A)(1) (“[s]ell or offer to sell a controlled substance”) and trafficking in a controlled substance under R.C. 2925.03(A)(2) (“knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance”) are not allied offenses of similar import, because “Cabrales needed a separate animus to commit each crime.” Id. at ¶ 38.
{¶ 6} However, the court of appeals held that possession of a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under
{¶ 7} The court of appeals certified that its holding conflicted with holdings from other appellate districts. We determined that a conflict existed with regard to the following question: “Are the offenses of trafficking in a controlled substance in violation of R.C. 2925.03(A)(2) and possession of a controlled substance in violation of R.C. 2925.11(A) allied offenses of similar import when the same controlled substance is involved in both offenses?” State v. Cabrales, 114 Ohio St.3d 1408, 2007-Ohio-2632, 867 N.E.2d 842. We also accepted proposition TV of Cabrales’s appeal, in which he asserts that possession and the two counts of trafficking are all allied offenses of similar import. We sua sponte consolidated the two appeals. Together then, these two cases present the issue of whether possession under R.C. 2925.11(A), trafficking under R.C. 2925.03(A)(1), and trafficking under R.C. 2925.03(A)(2) are allied offenses of similar import.
{¶ 8} The state argues that the court of appeals’ holding that possession under R.C. 2925.11(A) and trafficking under R.C. 2925.03(A)(2) are allied offenses ignored the abstract elements-comparison test set forth by this court in State v. Ranee (1999), 85 Ohio St.3d 632, 710 N.E.2d 699. The state asks the court to reverse the court of appeals, reaffirm that Ranee requires courts to compare elements of offenses in the abstract, and hold that possession and trafficking are not allied offenses of similar import, because their elements do not exactly coincide.
{¶ 9} Cabrales argues that Raneés abstract elements-comparison test has created confusion among the appellate courts and produced illogical results. He argues that a less “formulaic comparison” of offenses under R.C. 2941.25(A) will produce a more logical result in determining whether offenses are allied or not.
{¶ 10} Although we affirm the judgment of the court of appeals and answer the certified question in the affirmative, we find it necessary to clarify Raneés test under R.C. 2941.25(A) in doing so.
III. Analysis
A. Ohio’s Multiple-Count Statute
{¶ 11} We begin our analysis by examining Ohio’s multiple-count statute, R.C. 2941.25, which provides:
{¶ 13} “(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.”
{¶ 14} This court has recognized that R.C. 2941.25 requires a two-step analysis. See Newark v. Vazirani (1990), 48 Ohio St.3d 81, 549 N.E.2d 520, syllabus; State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; State v. Mughni (1987), 33 Ohio St.3d 65, 67, 514 N.E.2d 870; State v. Talley (1985), 18 Ohio St.3d 152, 153, 18 OBR 210, 480 N.E.2d 439; State v. Logan (1979), 60 Ohio St.2d 126, 128, 14 O.O.3d 373, 397 N.E.2d 1345. “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. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.” (Emphasis sic.) State v. Blankenship, 38 Ohio St.3d at 117, 526 N.E.2d 816.
{¶ 15} In Ranee, the court determined that “[a] problem inherent in the application of the test for similar/dissimilar import is whether the court should contrast the statutory elements in the abstract or consider the particular facts of the case. We think it useful to settle this issue for Ohio courts, and we believe that comparison of the statutory elements in the abstract is the more functional test, producing ‘clear legal lines capable of application in particular cases.’ ” Id., 85 Ohio St.3d at 636, 710 N.E.2d 699, quoting Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238.
B. Ranee Has Caused Confusion and Unreasonable Results
{¶ 16} Courts have struggled applying Ranee’s abstract elements-comparison test. For example, the Second District Court of Appeals considered whether involuntary manslaughter and aggravated vehicular homicide are allied offenses of similar import when there is only one victim. State v. Hendrickson, Montgomery App. No. 19045, 2003-Ohio-611, 2003 WL 264339. Finding that it was compelled to apply Ranee, the court compared the elements of the two offenses, and because the elements did not correspond to such a degree that commission of
{¶ 17} The First District Court of Appeals, interpreting Ranee to require a “strict textual comparison” of the elements under R.C. 2941.25(A), held that aggravated robbery and robbery were not allied offenses of similar import. State v. Palmer, 148 Ohio App.3d 246, 2002-Ohio-3536, 772 N.E.2d 726, ¶ 8-10. The court stated, “While we may not consider the Ranee test to be the best approach for determining when charged offenses are allied offenses, because it fails to consider the individual facts of a case, as some courts have done when applying the Blockburger
{¶ 18} The Tenth District Court of Appeals considered whether kidnapping and aggravated robbery were allied offenses in State v. Savage, Franklin App. No. 02AP-202, 2002-Ohio-6837, 2002 WL 31771245. In deciding the issue, the court eschewed Ranee’s abstract analysis. Instead, the court held that aggravated robbery and kidnapping were allied pursuant to our decision in State v. Fears (1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136, in which we recognized that unless there is a separate animus, commission of robbery necessarily results in commission of a kidnapping (i.e., commission of one offense results in the commission of the other), and therefore they are allied offenses of similar import under R.C. 2941.25(A).
{¶ 19} The Fourth District Court of Appeals considered whether involuntary manslaughter and aggravated arson were allied offenses of similar import in State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935, 2003 WL 1889479. The court applied Ranee and held that involuntary manslaughter and aggravated arson were not allied offenses of similar import, because “[t]hese statutes are dissimilar in at least two distinct respects.” Id. at ¶ 10. But the court went on to
{¶20} Despite trying to define a test “capable of application in particular cases,” Ranee has produced inconsistent, unreasonable, and, at times, absurd results. Courts must avoid statutory interpretations that create absurd or unreasonable results. State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658. When possible, courts should also avoid interpretations that create confusion or uncertainty. See Crawford Cty. Bd. of Commrs. v. Gibson (1924), 110 Ohio St. 290, 298-299, 144 N.E. 117.
C. Ranee Has Been Misinterpreted
{¶ 21} Consistent with the view of numerous Ohio appellate districts, the state argues that Ranee “requires a strict textual comparison” of elements under R.C. 2941.25(A). See, e.g., State v. Palmer (2002), 148 Ohio App.3d 246, 772 N.E.2d 726, ¶ 8-10 (in determining whether two or more offenses are allied offenses of similar import under R.C. 2941.25(A), Ranee requires a “strict textual comparison” of the offenses and only where the offenses exactly overlap are they allied offenses of similar import). We disagree.
{¶ 22} Ranee affirmed that the test under R.C. 2941.25(A) is “[i]f the elements of the crimes ‘ “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.” ’ ” Rance, 85 Ohio St.3d at 636, 710 N.E.2d 699, quoting Blankenship, 38 Ohio St.3d at 117, 526 N.E.2d 816, quoting State v. Jones (1997), 78 Ohio St.3d 12,13-14, 676 N.E.2d 80. Ranee then required that the elements be compared in the abstract, i.e., without consideration of the evidence in a particular case. Id. However, nowhere does Ranee mandate that the elements of compared offenses must exactly align for the offenses to be allied offenses of similar import under R.C. 2941.25(A). To interpret Ranee as requiring a strict textual comparison would mean that only where all the elements of the compared offenses coincide exactly will the offenses be considered allied offenses of similar import under R.C. 2941.25(A). Other than identical offenses, we cannot envision any two offenses whose elements align exactly
{¶ 24} Were we to apply Ranee as requiring a strict textual comparison as urged by the state, we would be compelled to reverse the appellate court’s holding that possession and trafficking under R.C. 2925.03(A)(2) of the same controlled substance are allied offenses of similar import, because the elements of these offenses do not coincide exactly, even though common sense and logic tell us that in order to prepare a controlled substance for shipping, ship it, transport it, deliver it, prepare it for distribution, or distribute it, one must necessarily also possess it. See R.C. 2925.01(K) (“ ‘Possess’ or ‘possession’ means having control over a thing or substance”).
{¶ 25} Even after Ranee, this court has recognized that certain offenses are allied offenses of similar import even though their elements do not align exactly. See State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 99, 101 (citing Ranee, and holding that theft and receiving stolen property are allied offenses); State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 89-95 (kidnapping and rape are allied offenses); State v. Fears, 86 Ohio St.3d at 344, 715 N.E.2d 136 (aggravated robbery and kidnapping are allied offenses). In these cases, we did not overrule or modify Ranee, but we did not apply a strict textual comparison in determining whether the offenses were allied under R.C. 2941.25(A). For example, the elements of theft and the elements of receiving stolen property differ, and therefore under a strict textual comparison test they could not be allied offenses of similar import under R.C. 2941.25(A). However, comparing these two offenses in Yarbrough, we found that they were allied,
{¶ 26} Thus, we have already implicitly recognized that Ranee does not require a strict textual comparison under R.C. 2941.25(A). Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.
{¶ 27} It is clear that interpreting Ranee to require a strict textual comparison under R.C. 2941.25(A) conflicts with legislative intent and causes inconsistent and absurd results. Accordingly, we clarify that in determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), Ranee requires courts to compare the elements of offenses in the abstract, i.e., without considering the evidence in the case, but does not require an exact alignment of elements.
IV. Applying Ranee in This Case
{¶ 28} We must now apply our holding and determine whether Cabrales’s convictions for possession of and trafficking in marijuana must merge as allied offenses of similar import committed with the same animus under R.C. 2941.25.
A. Possession and Trafficking (R.C. 2925.03(A)(1))
{¶29} We begin by comparing the elements of possessing a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(1). To be guilty of possession under R.C. 2925.11(A), the offender must “knowingly obtain, possess, or use a controlled substance.” To be guilty of trafficking under R.C. 2925.03(A)(1), the offender must knowingly sell or offer to sell a controlled substance. Trafficking under R.C. 2925.03(A)(1) requires an intent to sell, but the offender need not possess the controlled substance in order to offer to sell it. Conversely, possession requires no intent to sell. Therefore, possession under R.C. 2925.11(A) and trafficking under R.C. 2925.03(A)(1) are not allied offenses of similar import, because commission of one offense does not necessarily result in the commission of the other.
B. Possession and Trafficking (R.C. 2925.03(A)(2))
{¶ 30} We now compare the elements of possessing a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(2). To be guilty of possession under R.C. 2925.11(A), the offender must “knowingly obtain, possess, or use a controlled substance.” To be guilty of trafficking under R.C. 2925.03(A)(2), the offender must knowingly prepare for
{¶ 31} Next we proceed to the second step of the analysis, in which we must determine whether Cabrales committed these offenses with a separate animus under R.C. 2941.25(B). Clearly, Cabrales trafficked in and possessed the marijuana with a single animus: to sell it. Therefore, he cannot be convicted of both offenses.
C. Trafficking (R.C. 2925.03(A)(1)) and Trafficking (R.C. 2925.03(A)(2))
{¶ 32} Finally, we compare the elements of trafficking under R.C. 2925.03(A)(1) and trafficking under R.C. 2925.03(A)(2). To be guilty of trafficking under R.C. 2925.03(A)(1), the offender must sell or offer to sell a controlled substance. This subsection requires that the offender intends to sell the controlled substance. To be guilty of trafficking under R.C. 2925.03(A)(2), the offender must knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, knowing, or having reason to know, that the substance is intended for sale by the offender or another person. This subsection merely requires that the offender must know that the substance is intended for sale, but the sale can be made by a person other than the offender. Thus, an offender could commit trafficking under R.C. 2925.03(A)(2) and not necessarily commit trafficking under R.C. 2925.03(A)(1), because the offender merely knows that the controlled substance is intended for sale, as opposed to actually offering it for sale or selling it personally. Conversely, one could sell or offer to sell a controlled substance without ever undertaking many of the actions that constitute trafficking under R.C. 2925.03(A)(2), i.e., preparing for shipping or shipping the controlled substance. Therefore, committing trafficking under one of these provisions will not necessarily result in committing trafficking under the other provision.
{¶ 33} Thus, trafficking in a controlled substance under R.C. 2925.03(A)(1) and trafficking in a controlled substance under R.C. 2925.03(A)(2) are not allied offenses of similar import. Therefore, Cabrales can be convicted of both offenses.
{¶ 34} Accordingly, we answer the certified question in the affirmative and affirm the judgment of the court of appeals.
Judgment affirmed.
. Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.
. Such an interpretation is incongruous because the state is already prohibited from punishing a defendant for identical, duplicate offenses pursuant to the Double Jeopardy Clause. See State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 16 (“The Fifth Amendment to the
. Merger is “the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.” Maumee v. Geiger (1976), 45 Ohio St.2d 238, 243-244, 74 O.O.2d 380, 344 N.E.2d 133.