State v. Blankenship

526 N.E.2d 816, 38 Ohio St. 3d 116, 1988 Ohio LEXIS 239

Opinions

Douglas, J.

While appellant raises other issues before this court, the conflict certified to us by the court of appeals involves only the question of whether the offenses of felonious assault and kidnapping are allied offenses of similar import under R.C. 2941.25. We decline to address appellant’s other issues and find that under the facts of the case before us the offenses of felonious assault and kidnapping are not allied offenses of similar import and, accordingly, we affirm the judgment of the court of appeals.

R.C. 2941.25 provides:

“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

“(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.”

This court has set forth a two-tiered test to determine whether two crimes with which a defendant is charged are allied offenses of similar import. 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. State v. Mughni (1987), 33 Ohio St. 3d 65, 67, 514 N.E. 2d 870, 872; State v. Talley (1985), 18 Ohio St. 3d 152, 153-154, 18 OBR 210, 211-212, 480 N.E. 2d 439, 441; State v. Mitchell (1983), 6 Ohio St. 3d 416, 418, 6 OBR 463, 464, 453 N.E. 2d 593, 594; State v. Logan (1979), 60 Ohio St. 2d 126, 128, 14 O.O. 3d 373, 374, 397 N.E. 2d 1345, 1348.

Accordingly, we first must compare the elements of the two offenses. In the case at bar, appellant was convicted of kidnapping, R.C. 2905.01(A), and felonious assault, R.C. 2903.11. R.C. 2905.01 provides:

“(A) No person, by force, threat, or deception, * * * shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * *

“(2) To facilitate the commission of any felony or flight thereafter[.]”

R.C. 2903.11 provides:

“(A) No person shall knowingly:

“(1) Cause serious physical harm to another[.]”

Kidnapping requires proof that a defendant (1) knowingly, (2) by force, (3) restrained another of his liberty. To establish the offense of felonious assault there must be proof that a defendant (1) knowingly (2) caused serious physical harm to another.

Comparing the elements of the two crimes, we do not find that the elements correspond to such a degree that the commission of kidnapping necessarily results in the commission of felonious assault. A . kidnapping may occur without a felonious assault. Likewise, a felonious assault may occur absent the existence of a kidnapping. A person may seriously injure another without restraining the victim of his or her liberty.

Applying the foregoing to the facts before us, the kidnapping occurred when the guard was rendered unconscious and then bound with a rope. The felonious assault (the guard’s being struck on the head) occurred after the kidnapping had taken place. Thus, the felonious assault cannot be said to be part of the kidnapping offense.

Therefore, on the specific facts of this case, we hold that the offenses of kidnapping, R.C. 2905.01(A)(2), and felonious assault, R.C. 2903.11(A)(1), are not allied offenses of similar import.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Locher, Holmes, Wright and H. Brown, JJ., concur. Whiteside, J., concurs separately- Alba L. Whiteside, J., of the Tenth Appellate District, sitting for Sweeney, J.