Summary
In Harris, the Ohio Supreme Court held that where a conviction of grand theft in violation of R.C. 2913.02 does not require proof of any element not required to be proved for a conviction of robbery in violation of R.C. 2911.02, both are the same offense for purposes of double jeopardy.
Summary of this case from State v. ColquittOpinion
No. 78-1105
Decided June 6, 1979.
Criminal law — Sentence vacated, when — Double jeopardy — Multiple punishments for same offense.
Where a conviction of grand theft in violation of R.C. 2913.02 does not require proof of any element not required to be proved for a conviction of robbery in violation of R.C. 2911.02, both are the same offense for purposes of double jeopardy.
CERTIFIED by the Court of Appeals for Summit County.
On November 16, 1977, a man who acted as though he had a weapon in his pocket entered a 7-Eleven Store in Akron, and told the clerk that he wanted all the money in the cash register. The clerk thereupon proceeded to remove $36 in one dollar bills from the cash drawer, after which the robber grabbed the money from the clerk's hand and ran out of the store.
On the same night, the defendant, Dwight Harris, was arrested for the offense, and he was later indicted, tried by jury, and convicted in the Court of Common Pleas of Summit County of both robbery (R.C. 2911.02) and grand theft (R.C. 2913.02). Subsequently, Harris was sentenced to consecutive terms of from five to fifteen years on the robbery conviction and from two to five years on the grand theft conviction.
Although only $36 was taken, it is grand theft since Harris had previously been convicted for armed robbery.
The Court of Appeals affirmed the judgment of the trial court, and finding its judgment to be in conflict with a judgment of the Court of Appeals for Cuyahoga County in State v. Nelson (1977), 51 Ohio App.2d 31, certified the record of the case to this court for review and final determination.
Mr. Stephen M. Gabalac, prosecuting attorney, and Mr. Carl M. Layman III, for appellee.
Mr. Richard L. Aynes, for appellant.
At the outset, it appears that the statutory definition of robbery, when applied to the routine facts of this cause, is sufficiently comprehensive to embrace grand theft either as an allied offense of similar import (R.C. 2941.25) or as a lesser included offense (R.C. 2943.09). Nevertheless, the issue expressly certified to this court for determination has been framed by the Court of Appeals below as follows:
"* * * [W]hether robbery, R.C. 2911.02 and theft, R.C. 2913.02, arising out of a single incident, are the same offense for purposes of the double jeopardy clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution."
A comparative outline of the various elements of robbery and grand theft graphically illustrates that, under the circumstances herein, there is no element of grand theft which is not also an element of robbery. Furthermore, the same evidence proved both offenses, and this factual duplication brings into focus the test applied by this court in State v. Best (1975), 42 Ohio St.2d 530, wherein the court stated in paragraph three of the syllabus:
R.C. 2911.02, in pertinent part, provides:
"(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another."
R.C. 2913.01(K) reads, in pertinent part:
"`Theft offense' means any of the following:
"(1) A violation of section * * * 2911.02 * * * [or] 2913.02 * * * of the Revised Code;"
R.C. 2913.02, in pertinent part, reads:
"(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
"* * *
"(4) By threat.
"(B) Whoever violates this section is guilty of theft. * * * [I]f the offender has previously been convicted of a theft offense, then violation of this section is grand theft * * *."
"The applicable rule under the Fifth Amendment is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. ( Blockburger v. United States, 284 U.S. 299, and Duvall v. State, 111 Ohio St. 657, followed.)"
Since the grand theft conviction herein did not require proof of any element not required to be proved for the robbery conviction, both are the same offense for purposes of double jeopardy ( State v. Nelson, supra [ 51 Ohio App.2d 31]), and included within the various types of protection afforded by the double jeopardy clause is protection against multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717.
Hence, the judgment of the Court of Appeals is modified to vacate appellant's sentence of from two to five years on the grand theft conviction, and, as modified, it is hereby affirmed.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
KERNS, J., of the Second Appellate District, sitting for P. BROWN, J.