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2007-0268. State v. Smith, Slip Opinion No. 2008-Ohio-1260.
Hamilton App. No. C-060077, 2006-Ohio-6980. Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1260.pdf
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(March 26, 2008) In a decision announced today, the Supreme Court of Ohio resolved conflicting rulings by state appellate courts by holding that the crime of theft, as defined in R.C. 2913.02 is a “lesser included offense” of the crime of robbery, as defined in R.C. 2911.02.
In a 6-1 decision authored by Justice Terrence O’Donnell, the Court offered guidance to the state’s trial and appeals courts in how to apply a specific test established in a 1988 Supreme Court of Ohio decision, State v. Deem, when making future determinations about whether a defendant’s crime is or is not a lesser included offense of a more serious crime that can be committed in alternative, mutually exclusive ways.
The case involved Danielle Smith of Cincinnati, who was indicted on a second-degree felony count of robbery for participating in a shoplifting scheme in which she allegedly used physical force while attempting to flee from a store security guard who had apprehended and detained her. At the conclusion of Smith’s bench trial in the Hamilton County Court of Common Pleas, the judge found that the state had not proved all elements of the charge of robbery, but had proved the elements of theft. Determining that the crime of theft is a “lesser included offense” of the robbery offense for which she was indicted, the judge convicted Smith of a fifth-degree felony count of theft and sentenced her to an 11-month prison term with credit for time she had already spent in jail.
On review, the 1st District Court of Appeals upheld the ruling of the trial court.
Smith appealed, asking the Supreme Court to reverse the rulings of the trial and appellate courts and vacate her conviction on the basis that 5th degree felony theft can not be a lesser included offense of robbery because it is possible to commit robbery by using or threatening to use force either in actually stealing or in attempting to steal the property of another, while the statutory offense of theft always requires proof that property actually was taken.
In today’s decision, which affirmed the rulings of the trial and appellate courts, Justice O’Donnell wrote: “The three-part test we set forth in Deem provides: ‘An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.’”
He noted, however, that applying the Deem test to Smith’s case required supplemental analysis because Deem did not involve a statutory offense, like robbery, that can be committed in either of two alternative ways that are mutually exclusive.
“We therefore modify the analysis required by Deem to address statutes like robbery, in which one element of the offense can be satisfied by proving either that the defendant actually committed another offense or attempted to commit it. This analysis looks at each alternative separately,” wrote Justice O’Donnell ... “Accordingly, when applying the second part of the Deem test in cases involving statutes phrased in the alternative, such as the robbery statute, a court must consider each alternative method of committing the greater offense when deciding whether ‘the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed.’”
Applying that test to the alternative ways in which robbery can be committed, Justice O’Donnell wrote: “Because robbery may be committed by either committing a theft or attempting to commit a theft, there are two possible ways to commit the offense: robbery by theft or robbery by attempted theft. If these two alternatives are essentially treated as separate offenses, then fifth-degree felony theft is a lesser included offense of robbery as statutorily defined in the alternative of robbery by theft, because it would be impossible to ever commit a robbery by theft without also committing a theft. Accordingly, theft, as defined in R.C. 2913.02, is a lesser included offense of robbery, as defined in R.C. 2911.02. Thus, based on our holding that theft is a lesser included offense of robbery, the trial court properly convicted Smith of the lesser included offense of theft.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
In a dissenting opinion, Justice Paul E. Pfeifer wrote: “The majority, by its own admission, essentially creates two new crimes in Ohio’s criminal code – robbery by theft and robbery by attempted theft. Must prosecutors respond to this court’s decision by indicting defendants for either robbery by theft or robbery by attempted theft? Will they indict for both to cover their bases? If so, that is rather ironic: we would not even be hearing this case had the prosecutor in this case simply indicted the defendant for both theft and robbery. To correct that mistake in this inconsequential case, the majority has had to ignore this court’s own precedent, rely on other, semi-relevant precedent that this court has already rejected, meddle with the Deem test, which has been in place for nearly 20 years, and rewrite a criminal statute. The Queen of Hearts would be proud.”
Contacts
Michaela Stagnaro, 513.241.0500, for Danielle Smith.
Judith A. Lapp, 513.946.3009, for the State of Ohio and Hamilton County prosecutor’s office.