State v. Talley

480 N.E.2d 439, 18 Ohio St. 3d 152, 18 Ohio B. 210, 1985 Ohio LEXIS 405
CourtOhio Supreme Court
DecidedJuly 10, 1985
DocketNo. 84-1676
StatusPublished
Cited by44 cases

This text of 480 N.E.2d 439 (State v. Talley) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Talley, 480 N.E.2d 439, 18 Ohio St. 3d 152, 18 Ohio B. 210, 1985 Ohio LEXIS 405 (Ohio 1985).

Opinion

Douglas, J.

The issue presented is whether, under the facts of this case, the offenses of breaking and entering, grand theft, and possession of criminal tools are allied offenses of similar import, rendering sentencing following convictions on all three improper. This court holds that these offenses are not allied offenses of similar import and that sentencing on all three crimes was thus proper. Accordingly, the judgment of the court of appeals is hereby reversed.

R.C. 2941.25 provides as follows:

“(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, in State v. Mitchell (1983), 6 Ohio St. 3d 416, 418, employed a two-step analysis in determining whether two offenses are allied under R.C. 2941.25:

“In applying this statute, the courts have employed a two-step analysis described in State v. Logan (1979), 60 Ohio St. 2d 126 [14 O.O.3d 373], The first step requires a comparison of the elements with which the defendant is charged. Allied offenses of similar import are those offenses [154]*154whose elements correspond to such a degree that the commission of one offense will result in the commission of the other. Id. at 128. An illustration of this principle is rape, as defined by R.C. 2907.02(A)(1), and kidnapping, as defined by R.C. 2905.01(A)(4). A comparison of the elements of these two offenses reveals such a singularity of purpose and conduct that kidnapping may be said to be implicit within every forcible rape. State v. Price (1979), 60 Ohio St. 2d 136 [14 O.O.3d 379]; State v. Logan, supra; State v. Donald (1979), 57 Ohio St. 2d 73 [11 O.O.3d 242].
“In the event that the court finds the offenses being compared are allied offenses of similar import, it must proceed to the second step of analysis which is indicated under R.C. 2941.25(B). This level of inquiry involves a review of the defendant’s conduct for a determination as to whether the offenses were committed separately or with a separate animus as to each. If the offenses were so committed, the defendant may be convicted of them all.”1

Under Mitchell, then, the first step is to analyze the elements of each offense to determine if those elements correspond to such a degree that the commission of one offense will result in the commission of the other, i.e., to determine whether the offenses are allied offenses of a similar import.

R.C. 2911.13, breaking and entering, provides in part as follows:

“(A) No person[,] by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony.
“(B) No person shall trespass on the land or premises of another, with purpose to commit a felony.”

The elements of this crime, as spelled out in The Ohio Criminal Law Handbook (4 Ed. 1984) A-55, are as follows:

“Division (A):
“(1) With purpose to commit a theft offense or any felony therein
“(2) Trespass in unoccupied structure
“(3) By force, stealth, or deception
“(4) Venue[.]
“Division (B):
“(1) With'purpose to commit a felony
“(2) Trespass on land or premises of another
“(3) Venue[.]”
R.C. 2913.02, theft, provides, in pertinent part, as follows:
“(A) Np person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
“(1) Without the consent of the owner or person authorized to give consent;
[155]*155“(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
“(3) By deception;
“(4) ■ By threat.”

The Ohio Criminal Law Handbook at A-57 specifies the elements of theft as follows:

“(1) Knowingly obtain or exert control over property or services
“(2) With purpose to deprive the owner thereof
“(3) (a) Without consent of owner or person authorized to consent
“(or)
“(b) Beyond the scope of the express or implied consent of owner or person authorized to consent
“(or)
“(c) By deception
“(or)
“(d) By threat
“(4) Venue[.]”

And, R.C. 2923.24, possessing criminal tools, provides, in relevant part, as follows:

“(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally.
“(B) Each of the following constitutes prima-facie evidence of criminal purpose:
“(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating such dangerous ordnance, materials, or parts are intended for legitimate use;
“(2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use;
“(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use.”

The elements of this crime, as delineated in The Ohio Criminal Law Handbook at A-lll are:

“(1) Have possession or control of
“(2) Any substance, device, instrument, or article
“(3) With purpose to use it criminally
“(4) Venue[.]”

A comparison of the elements for each of these three crimes clearly indicates that they do not correspond to such a degree that the commission of one offense will result in the commission of the other. For example, the crime of breaking and entering necessarily involves a trespass into an unoccupied structure. This element is not essential to the commission of grand theft or possession of criminal tools.

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Cite This Page — Counsel Stack

Bluebook (online)
480 N.E.2d 439, 18 Ohio St. 3d 152, 18 Ohio B. 210, 1985 Ohio LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-talley-ohio-1985.