When two or more crimes by a defendant result in harm that is separate and identifiable, the offenses are of “dissimilar import,” and the defendant may be convicted of and sentenced for multiple offenses, the Ohio Supreme Court ruled today.

Courts must analyze the defendant’s conduct to decide whether one or more convictions may result, Justice Judith Ann Lanzinger wrote in the court’s majority opinion. Because offenses may be committed in varying ways and may have different import, no bright-line rule can be drawn, the court concluded.

To determine whether crimes are allied, Justice Lanzinger wrote that courts must ask whether the offenses were dissimilar in import or significance, whether they were committed separately, and whether they were committed with separate animus or motivation.

In this case, a man was convicted in Hamilton County for the rapes of three women and three associated aggravated burglaries, along with two other crimes. Today’s decision returns the case to the appeals court to decide in each of the events whether the aggravated burglary and the rape were of similar or dissimilar import.

Case History
Kenneth Ruff was convicted for three rapes and burglaries that took place on three dates in 2009. Ruff asked the trial court to merge the aggravated burglary counts into the corresponding rape counts. The trial court denied his request and sentenced him to prison for 40 years – 10 years for each rape and 5 years for each of the two other crimes. The court imposed an eight-year prison term for each burglary to be served concurrently with the other burglary counts and with the sentences for the other crimes.

Ruff appealed various issues to the First District Court of Appeals. One claim was that the robberies and rapes were allied offenses and should have been merged. The appellate court agreed that merging the offenses was appropriate, and the state appealed to the Ohio Supreme Court.

Court’s Analysis
Justice Lanzinger noted that state law provides that the same conduct can be punished separately if the conduct constitutes offenses of dissimilar import. Judges must decide whether a defendant’s criminal conduct can be seen as a single offense or more than one offense, she explained.

State law provides that the same conduct can be punished separately if the conduct constitutes offenses of dissimilar import. Judges must decide whether a defendant’s criminal conduct can be seen as a single offense or more than one offense.

State law provides that the same conduct can be punished separately if the conduct constitutes offenses of dissimilar import. Judges must decide whether a defendant’s criminal conduct can be seen as a single offense or more than one offense.

She added: “R.C. 2941.25(A) allows only a single conviction for conduct that constitutes ‘allied offenses of similar import.’ But under R.C. 2941.25(B), a defendant charged with multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.”

In State v. Johnson (2010), the Ohio Supreme Court determined that a defendant’s conduct, rather than the abstract elements of the crime, had to be considered when deciding whether offenses are allied. Justice Lanzinger reasoned that the Johnson ruling did not provide a complete analysis for deciding whether offenses should be merged because the decision did not consider that the defendant may be convicted of all offenses when the conduct constitutes two or more offenses of dissimilar import.

“[O]ffenses are not allied offenses of similar import if they are not alike in their significance and their resulting harm,” she wrote.

The court did not accept the state’s argument that an aggravated burglary can never be merged with a related rape conviction.

“At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct,” she continued. “The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.”

Concluding that the First District did not consider the import of the offenses in Ruff’s case, the court reversed the appeals court’s ruling and remanded the case to evaluate that factor.

Votes
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill. Justice Judith L. French concurred in the court’s judgment in a separate opinion.

Justice Paul E. Pfeifer dissented.

Concurring Opinion
Justice French agreed that the case should be sent back the appeals court to decide whether the crimes had similar import. However, she would adopt the similar-import standard expressed in a 1932 U.S. Supreme Court ruling, Blockburger v. United States, rather than the test the majority presented.

She explained that the Blockburger rule focuses on the crime’s statutory elements, not the case facts or the proof shown.

“By contrast, the majority’s similar-import test does not examine legislative intent,” Justice French wrote. “Instead, it collapses into a single analysis that considers conduct dispositive and looks to the number of victims (at least in cases with victims) and the significance of the resulting harm. R.C. 2941.25 already requires subjective inquiries into the offender’s conduct and animus. A court must also determine whether the offenses, as defined by the legislature, share a similar import.”

Dissent
In Justice Pfeifer’s view, the Johnson test is “perfectly valid” and should be applied in this case.

“Johnson is straightforward, simple, and in no need of the modification, enhancement, explanation, or tweaking that the majority opinion imposes,” he reasoned.

Evaluating the case under Johnson, Justice Pfeifer first determined that the crimes of aggravated burglary and rape can be committed with the same conduct. Next he reviewed whether the crimes in this case were committed by the same conduct.

In two of the rapes, Justice Pfeifer wrote, Ruff entered a building with the intent to commit a rape and raped each woman. “The aggravated burglaries and the rapes were part and parcel of the same conduct,” he concluded. “He ought, therefore, to be punished and punished severely for committing a rape, but he ought not, he cannot also, be punished for an aggravated burglary, which was incidental to the rape.”

However, in the third case, Ruff entered a building and first demanded money, then raped a woman, Justice Pfeifer explained. The justice concluded that the robbery and the rape were not part of the same conduct in this instance.

He would have returned the case to the trial court to sentence Ruff based on this application of Johnson to the case.

2013-1441. State v. Ruff, Slip Opinion No. 2015-Ohio-995.

View oral argument video of this case.

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