[Cite as State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974.]




              THE STATE OF OHIO, APPELLANT, v. EVANS, APPELLEE.
          [Cite as State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974.]
Criminal law — Lesser included offenses — Robbery — R.C. 2911.02(A)(2) and
        2911.01(A)(1).
     (No. 2008-0363 — Submitted January 21, 2009 — Decided July 7, 2009.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 89057,
                                     2008-Ohio-139.
                                  __________________
                               SYLLABUS OF THE COURT
1. Robbery as defined in R.C. 2911.02(A)(2) is a lesser included offense of
        aggravated robbery as defined in R.C. 2911.01(A)(1).
2. In determining whether an offense is a lesser included offense of another, a
        court shall consider whether one offense carries a greater penalty than the
        other, whether some element of the greater offense is not required to prove
        commission of the lesser offense, and whether the greater offense as
        statutorily defined cannot be committed without the lesser offense as
        statutorily defined also being committed. (State v. Deem (1988), 40 Ohio
        St.3d 205, 533 N.E. 2d 294, clarified.)
                                  __________________
        O’DONNELL, J.
        {¶ 1} In this matter, we are called upon to determine whether robbery is
a lesser included offense of aggravated robbery. In resolving that issue, it is
necessary to revisit the test for lesser included offenses set forth in State v. Deem
(1988), 40 Ohio St.3d 205, 533 N.E.2d 294.
        {¶ 2} On November 18, 2005, Catrice Stewart drove to the Collinwood
Village Food Mart on St. Clair Avenue at London Road, in Cleveland, Ohio.
                             SUPREME COURT OF OHIO




After she parked her car and began walking toward the store, Timothy Evans
approached her from behind, grabbed her purse, and yelled, “Give me this purse,
bitch,” and upon her resistance, he declared, “I’ve got a gun,” moving his hand as
if to reach for something. Stewart then replied, “Well, you know what? You’re
going to have to use it,” and began to kick and fight him. Although Evans
repeated several times that he had a gun, Stewart stated that she never saw it.
Observing the struggle, a nearby driver sounded her horn.         That noise and
Stewart’s resistance caused Evans to flee without Stewart’s purse.          Police
responded, but were unable to apprehend Evans that night.
        {¶ 3} About two months later, Stewart saw Evans walking down the
street and recognized him as the man who had tried to take her purse. She called
police, who arrested Evans. A Cuyahoga County grand jury indicted Evans on
one count of aggravated robbery in violation of R.C. 2911.01(A)(1), stating that
he “did, in attempting or committing a theft offense, as defined in Section 2913.01
of the Revised Code, or in fleeing immediately after the attempt or offense upon
Catrice Stewart have a deadly weapon to-wit: gun, on or about his person or
under his control and either displayed the weapon, brandished it, indicated that he
possessed it, or used it.”
        {¶ 4} Evans waived the right to a jury, and at the bench trial, the court
granted his Crim.R. 29 motion with respect to the aggravated robbery charge,
finding that the state had not presented sufficient evidence to prove that Evans
had a weapon on his person when he committed the offense; however, the court
found him guilty of robbery as a lesser included offense of aggravated robbery.
        {¶ 5} Evans appealed to the Eighth District Court of Appeals, arguing
that his conviction for the unindicted offense of robbery was unconstitutional
because robbery is not a lesser included offense of aggravated robbery. Applying
the test for lesser included offenses set forth in State v. Deem (1988), 40 Ohio
St.3d 205, 533 N.E.2d 294, the appellate court determined that robbery is not a




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lesser included offense of aggravated robbery, because robbery includes an
element that aggravated robbery does not – inflicting, attempting to inflict, or
threatening to inflict physical harm. Concluding that the facts necessary to support
this element of robbery were not presented to the grand jury, the court reversed
Evans’s robbery conviction as plain error.
         {¶ 6} We accepted the state’s discretionary appeal to consider whether
robbery is a lesser included offense of aggravated robbery and to clarify the
criteria for determining whether one offense is a lesser included offense of
another. For the reasons that follow, robbery as defined in R.C. 2911.02(A)(2) is
a lesser included offense of aggravated robbery as defined in R.C. 2911.01(A)(1),
and, having reviewed Deem, we modify the second part of the lesser included
offense analysis to delete the word “ever,” to clarify its application in future
cases.
                                  The Deem Test
         {¶ 7} Section 10, Article I of the Ohio Constitution provides that “no
person shall be held to answer for a capital, or otherwise infamous, crime, unless
on presentment or indictment of a grand jury * * *.” We have long recognized
that “[t]his provision guarantees the accused that the essential facts constituting
the offense for which he is tried will be found in the indictment of the grand jury.”
State v. Headley (1983), 6 Ohio St.3d 475, 478, 6 OBR 526, 453 N.E.2d 716,
citing Harris v. State (1932), 125 Ohio St. 257, 181 N.E. 104. An indictment will
satisfy this constitutional requirement if it, “ ‘first, contains the elements of the
offense charged and fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal or conviction in bar of
future prosecutions for the same offense.’ ” State v. Childs (2000), 88 Ohio St.3d
558, 565, 728 N.E.2d 379, quoting Hamling v. United States (1974), 418 U.S. 87,
117, 94 S.Ct. 2887, 41 L.Ed.2d 590.




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                             SUPREME COURT OF OHIO




       {¶ 8} We also recognize, however, that R.C. 2945.74 provides that a
criminal defendant may be found guilty of a lesser included offense even though
the lesser offense was not separately charged in the indictment. Lesser included
offenses need not be separately charged in an indictment, because when an
indictment charges a greater offense, it “ ‘necessarily and simultaneously charges
the defendant with lesser included offenses as well.’ ” State v. Smith, 121 Ohio
St.3d 409, 2009-Ohio-787, 905 N.E.2d 151, ¶ 14, quoting State v. Lytle (1990), 49
Ohio St.3d 154, 157, 551 N.E.2d 950. Thus, a conviction for a lesser included
offense does not deprive an offender of his constitutional right to presentment or
indictment by the grand jury, because by indicting the offender for the greater
offense, the jury has necessarily considered each of the essential elements of the
lesser offense.
       {¶ 9} In Deem, this court established a three-part test for courts to use to
determine whether one offense is a lesser included offense of another, stating:
“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.” Deem, 40 Ohio St.3d 205, 533 N.E.2d
294, at paragraph three of the syllabus. We clarified the Deem test in State v.
Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595, and held that when
a statute sets forth mutually exclusive ways of committing the greater offense
(e.g., where one element of the offense can be satisfied by proving either that the
defendant actually committed another offense or attempted to commit it), a court
is required to apply the second part of the Deem test separately to each alternate
method of committing the greater offense.          Smith, at paragraph one of the
syllabus. Following that clarification, we determined that the crime of theft –
depriving an owner of property without consent – was a lesser included offense of




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robbery – causing harm to another while attempting, committing, or fleeing after a
theft offense. Id. at ¶ 29. There, because the trial court had found that the state
had not proven the harm element beyond a reasonable doubt but had found that all
elements of theft had been proven beyond a reasonable doubt, we determined that
Smith’s conviction for the lesser included offense of theft was proper. Id. at ¶ 5,
30.
       {¶ 10} In the instant case, we observe that the first part of the Deem test
requires a review of penalties, and we note that aggravated robbery carries a
greater penalty than robbery; next, pursuant to the third part of the Deem test, we
examine the elements of the offenses and note that aggravated robbery as defined
in R.C. 2911.01(A)(1) contains an element – possession of a deadly weapon – that
robbery does not. Thus, our analysis here focuses again on the troublesome
second part of the Deem test, which requires that “the greater offense cannot, as
statutorily defined, ever be committed without the lesser offense, as statutorily
defined, also being committed.” (Emphasis added.) Deem, at paragraph three of
the syllabus.
       {¶ 11} The state contends that the strict comparison of elements required
by the second part of the Deem test has produced incongruous and illogical results
that fail to hold criminal defendants accountable for crimes in the absence of
specific indictments for each related offense. The state urges us to modify the
second part of the Deem test to permit courts to consider the particular facts and
circumstances of each case in determining whether one offense is a lesser
included offense of another, or to consider whether “the offenses are so similar
that the commission of one offense will necessarily result in commission of the
other,” as we have done in our analogous test for allied offenses of similar import.
See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181,
paragraph one of the syllabus.




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                             SUPREME COURT OF OHIO




       {¶ 12} On the other hand, Evans contends that adoption of the state’s fact-
based approach will impinge upon a criminal defendant’s constitutional right to a
grand jury indictment, permitting convictions for offenses that were either
considered and rejected or never even contemplated by the grand jury. He asserts
that the state’s proposed test would create uncertainty for prosecutors, defendants,
and the courts by making it impossible to predict, before trial, what lesser
included offenses would be at issue. In addition, Evans argues that because we
have previously held that robbery is not a lesser included offense of aggravated
robbery, applying a contrary ruling would violate his due process rights.
       {¶ 13} We have consistently held that in applying Deem to lesser included
offenses, “ ‘ “ ‘the evidence presented in a particular case is irrelevant to the
determination of whether an offense, as statutorily defined, is necessarily included
in a greater offense.’ ’’ ’ ” Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884
N.E.2d 595, ¶ 9, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-
2072, 865 N.E.2d 859, ¶ 11, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 26,
759 N.E.2d 1240, quoting State v. Kidder, 32 Ohio St.3d 279, 282, 513 N.E.2d
311; see also State v. Koss (1990), 49 Ohio St.3d 213, 218-219, 551 N.E.2d 970.
Indeed, in Barnes, we rejected the state’s request that we consider the specific
facts of the case in determining whether felonious assault with a deadly weapon
was a lesser included offense of attempted murder. Barnes, 94 Ohio St.3d at 26.
But we note that the facts of a case are relevant in determining whether a court
should instruct the jury on a lesser included offense. Specifically, we have stated
that after the three parts of the Deem test are met, “[i]f the evidence is such that a
jury could reasonably find the defendant not guilty of the charged offense, but
could convict the defendant of the lesser included offense, then the judge should
instruct the jury on the lesser included offense.” Shaker Hts. v. Mosely at ¶ 11,
citing State v. Shane (1992), 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272. See
also State v. Thomas, 40 Ohio St.3d at 216, 533 N.E.2d 286; Kidder, 32 Ohio




                                          6
                                 January Term, 2009




St.3d at 282-283, 513 N.E.2d 311. Based upon the foregoing, we decline the
state’s invitation to abandon our precedent in this regard.
        Robbery as a Lesser Included Offense of Aggravated Robbery
        {¶ 14} The second step of the Deem test requires a court to examine the
statutory elements of the two offenses. Here, we consider whether aggravated
robbery as defined in R.C. 2911.01(A)(1) can ever be committed without also
committing robbery as defined in R.C. 2911.02(A)(2).
        {¶ 15} R.C. 2911.01(A)(1) defines one way to commit the crime of
aggravated robbery:
        {¶ 16} “(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
the attempt or offense, shall do any of the following:
        {¶ 17} “(1) Have a deadly weapon on or about the offender’s person or
under the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it.”
        {¶ 18} R.C. 2911.02(A)(2) defines one way to commit the crime of
robbery:
        {¶ 19} “(A) No person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall do any of the following:
        {¶ 20} “* * *
        {¶ 21} “(2) Inflict, attempt to inflict, or threaten to inflict physical harm
on another.”
        {¶ 22} Thus, in determining whether robbery is a lesser included offense
of aggravated robbery, we are called on to consider whether displaying,
brandishing, indicating possession, or using a deadly weapon in the attempted
commission of a theft offense is also a threat to inflict physical harm as defined in
R.C. 2911.02(A)(2). While these elements are not identically phrased, we have
recognized: “This test is not a word game to be performed by rote by matching




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the words chosen by the legislature to define criminal offenses. Some offenses,
such as aggravated murder and murder, lend themselves to such a simple
matching test; others do not. * * * We would also note that the elements of the
offenses are ‘matched’ only in part (iii) of the test to determine if ‘some element’
of the greater offense is not found in the lesser offense. The proper overall focus
is on the nature and circumstances of the offenses as defined, rather than on the
precise words used to define them.” State v. Thomas, 40 Ohio St.3d 213 at 216-
217, 533 N.E.2d 286. Thus, the test does not require identical language to define
the two offenses, but focuses upon whether the words used in the statute defining
the greater offense will put the offender on notice that an indictment for that
offense could also result in the prosecution of the lesser included offense.
       {¶ 23} Robbery as defined in the instant case requires the state to prove a
threat to inflict physical harm. R.C. 2911.02(A)(2). However, “the threat of
physical harm need not be explicit; rather, an implied threat of physical harm is
sufficient to support a conviction under R.C. 2911.02(A)(2).” State v. Harris,
Franklin App. No. 07-AP137, 2008-Ohio-27, at ¶ 14; State v. Exum, Franklin
App. No. 05AP-894, 2007-Ohio-2648, at ¶ 31; State v. Ellis, Franklin App. No.
05AP-800, 2006-Ohio-4231, at ¶ 7.         One cannot display, brandish, indicate
possession of, or use a deadly weapon in the context of committing a theft offense
without conveying an implied threat to inflict physical harm. It is the very act of
displaying, brandishing, indicating possession, or using the weapon that
constitutes the threat to inflict harm because it intimidates the victim into
complying with the command to relinquish property without consent.
       {¶ 24} Despite making the statement to Stewart “I have a gun” as he tried
to take her purse, Evans now argues that a person can indicate possession of a
deadly weapon without implying a threat to inflict physical harm, for example, by
purchasing a hunting knife in a hardware or sporting goods store as he
simultaneously shoplifts a bag of nails by placing them in his pocket. This




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argument is not well taken. In State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-
1059, 905 N.E.2d 154, ¶ 24, we rejected similarly implausible examples advanced
in the context of an allied offense analysis, stating that they “lapse into the strict
textual comparison” that this court has previously rejected. Having previously
rejected such strict textual comparison in the context of the Deem lesser included
offense analysis, emphasizing that a court should focus “on the nature and
circumstances of the offenses as defined, rather than on the precise words used to
define them,” we now reject the implausible scenario advanced by Evans in this
case. Thomas, 40 Ohio St.3d at 217, 533 N.E.2d 286.
       {¶ 25} Moreover, to ensure that such implausible scenarios will not derail
a proper lesser included offense analysis, we further clarify the second part of the
Deem test to delete the word “ever.” This clarification does not modify the Deem
test, but rather eliminates the implausible scenarios advanced by parties to suggest
the remote possibility that one offense could conceivably be committed without
the other also being committed. Deem requires a comparison of the elements of
the respective offenses in the abstract to determine whether one element is the
functional equivalent of the other. If so, and if the other parts of the test are met,
one offense is a lesser included offense of the other.
       {¶ 26} Thus, in determining whether an offense is a lesser included
offense of another, a court shall consider whether one offense carries a greater
penalty than the other, whether some element of the greater offense is not required
to prove commission of the lesser offense, and whether the greater offense as
statutorily defined cannot be committed without the lesser offense as statutorily
defined also being committed.
       {¶ 27} As this clarification of Deem relates to the offenses of aggravated
robbery and robbery as defined in this case, to establish aggravated robbery, the
state carries the burden to prove that Evans had a deadly weapon and indicated his
possession of it; and to establish robbery, the state must prove a threat to inflict




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physical harm on the victim.       Indicating possession of a deadly weapon
constitutes an implied threat to inflict physical harm because it intimidates a
victim and is designed to compel relinquishment of property without consent.
Therefore, an element-to-element comparison reveals an equivalence between
indicating possession of a deadly weapon in order to compel compliance with a
demand for property and an implied threat to inflict physical harm.         Thus,
aggravated robbery as statutorily defined in this case cannot be committed
without also committing the offense of robbery. Accordingly, robbery as defined
in R.C. 2911.02(A)(2) is a lesser included offense of aggravated robbery as
defined in R.C. 2911.01(A)(1).
       {¶ 28} In State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, __ N.E.2d
__, we held that aggravated robbery and robbery are allied offenses of similar
import; we now conclude that robbery is a lesser included offense of aggravated
robbery. These holdings are neither inconsistent nor mutually exclusive. Other
courts have considered whether two offenses can be both allied offenses of similar
import and lesser included offenses.
       {¶ 29} In State v. Harris (1979), 58 Ohio St.2d 257, 258, 12 O.O.3d 265,
389 N.E.2d 1121, we noted that “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).” Because the
grand theft conviction did not require proof of any element not also required to
prove the robbery conviction, we held that they were the same offense for
purposes of double jeopardy and vacated the defendant’s grand theft conviction.
       {¶ 30} In State v. Johnson (1983), 6 Ohio St.3d 420, 424, 6 OBR 466, 453
N.E.2d 595, we held that involuntary manslaughter and murder are allied offenses
of similar import, and in State v. Thomas, 40 Ohio St.3d at 215, 533 N.E.2d 286,
that involuntary manslaughter is also a lesser included offense of murder. More




                                       10
                                January Term, 2009




recently, in State v. Hooper, Columbiana App. No. 03 CO 30, 2005-Ohio-7084,
at ¶ 16, the Seventh District Court of Appeals stated, “Appellant is correct that
gross sexual imposition (R.C. § 2907.05) is both a lesser included offense and an
allied offense of similar import of rape (R.C. § 2907.02).” Id., citing State v.
Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, and State v. Abi-Sarkis
(1988), 41 Ohio App.3d 333, 336, 535 N.E.2d 745. The court did not express any
concern with one of the offenses being a lesser included offense and both offenses
being allied offenses to each other.       However, the court rejected Hooper’s
argument that he could not be separately punished for gross sexual imposition
simply because it is an allied offense to or a lesser included offense of rape,
because “[t]here is no statutory or constitutional prohibition against imposing
separate punishments for allied offenses or lesser included offenses if they are
committed independently or with a separate animus.” Id. at ¶ 19, citing R.C.
2941.25(B), and State v. Gopp, 154 Ohio App.3d 385, 2003-Ohio-4908, 797
N.E.2d 531, ¶ 8.
       {¶ 31} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181, paragraph one of the syllabus, we explained that there need not be an
“exact alignment” of the elements for two offenses to be allied offenses but that
“if, in comparing the elements of the offenses in the abstract, the offenses are so
similar that the commission of one offense will necessarily result in commission
of the other, then the offenses are allied offenses of similar import.” This allied
offenses test corresponds to step two of the Deem test which, as clarified, states
“whether the greater offense as statutorily defined cannot be committed without
the lesser offense also being committed.” Thus, application of the Cabrales test
for allied offenses and the Deem test for lesser included offenses suggests that a
lesser included offense will always be an allied offense, although an allied offense
may not necessarily be a lesser included offense, because a lesser included
offense must also satisfy the first and third steps of Deem.




                                         11
                             SUPREME COURT OF OHIO




          {¶ 32} We also reject Evans’s contention that our application of this
holding to his case will deprive him of a constitutional right to due process. The
United States Supreme Court has held that a judicial alteration of criminal law
violates the principle of fair warning and must not be given retroactive effect only
when it is “ ‘unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue.’ ” Rogers v. Tennessee (2001), 532 U.S.
451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697, quoting Hall, General Principles of
Criminal Law (2d Ed.1960), 61.
          {¶ 33} Despite this assertion by Evans, our decision in State v.
Merriweather (1980), 64 Ohio St.2d 57, 18 O.O.3d 259, 413 N.E.2d 790, holding
that robbery was not a lesser included offense of aggravated robbery under an
earlier version of R.C. 2911.01(A)(1), does not render our holding today either
unexpected or indefensible by reference to law expressed prior to the commission
of Evans’s offense. Merriweather involved a different statute that required the
state to prove only that the offender had a deadly weapon or dangerous ordnance
on or about his person or under his control while attempting or committing a theft
offense. 1972 Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1922. In contrast,
the current version requires the state to prove that the offender possessed a deadly
weapon or dangerous ordnance and that he either displayed it, brandished it,
indicated that he possessed it, or used it in attempting or committing a theft
offense. Therefore, Merriweather does not apply here. Furthermore, we adopted
the Deem test for lesser included offenses, which forms the basis for our decision
today, in 1988 – well before Evans’s 2005 offense. Therefore, applying our
holding to Evans does not violate due process. We reverse the judgment of the
court of appeals and reinstate this conviction.
                                                                Judgment reversed.
          MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, and LANZINGER, JJ.,
concur.




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                               January Term, 2009




       PFEIFER, J., concurs in judgment.
       CUPP, J., concurs in judgment and the first paragraph of the syllabus.
                             __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew
E. Meyer, Assistant Prosecuting Attorney, for appellant.
       Robert L. Tobik, Cuyahoga County Public Defender, and David M. King
and John T. Martin, Assistant Public Defenders, for appellee.
                             __________________




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