[Cite as State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323.]




             THE STATE OF OHIO, APPELLEE, v. HARRIS, APPELLANT.
          [Cite as State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323.]
Criminal law — Allied offenses — R.C. 2941.25(A) — Robbery defined in R.C.
        2911.02(A)(2) and aggravated robbery defined in R.C. 2911.01(A)(1) are
        allied offenses — Felonious assault under R.C. 2903.11(A)(1) and
        felonious assault under R.C. 2903.11(A)(2) are allied offenses.
    (No. 2007-1812 — Submitted January 13, 2009 — Decided July 7, 2009.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-060587.
                                  __________________
                                SYLLABUS OF THE COURT
1. Robbery defined in R.C. 2911.02(A)(2) and aggravated robbery defined in R.C.
        2911.01(A)(1) are allied offenses of similar import, and therefore a
        defendant cannot be convicted of both offenses when both are committed
        with the same animus against the same victim.
2. Felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined
        in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a
        defendant cannot be convicted of both offenses when both are committed
        with the same animus against the same victim. (State v. Cotton, 120 Ohio
        St.3d 321, 2008-Ohio-6249, 898 N.E.2d 959, followed.)
                                  __________________
        LUNDBERG STRATTON, J.
                                      I. Introduction
        {¶ 1} There are two issues before the court. The first is whether robbery
under R.C. 2911.02(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) are
allied offenses of similar import. We are asked the same question with regard to
felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C.
                            SUPREME COURT OF OHIO




2903.11(A)(2). In both instances, we hold that the offenses are allied offenses of
similar import, and therefore a defendant cannot be convicted of both offenses
when both are committed with the same animus against the same victim. In this
case, we hold that appellant, Cornelius Harris, was convicted on and sentenced for
several counts of robbery and aggravated robbery and several counts of felonious
assault that should have merged because the crimes were committed with the
same animus against the same victim. Accordingly, we reverse the judgment of
the court of appeals.
                                    II. Facts
       {¶ 2} James Lawrence, Dwight Lawrence, and Demon Meatchem were
smoking marijuana and playing dominos at James Lawrence’s apartment.
Evander Kelly, a friend of the Lawrence brothers, and Harris decided to stop by
James’s apartment. Kelly spoke to the dominos players while Harris went to the
bathroom. When Harris returned from the bathroom, he was holding a gun.
Harris struck Dwight Lawrence in the back of the head with the gun and ordered
him, his brother James, and Meatchem to lie face down on the bed while he stole
their money, cell phones, videos, and compact disks.
       {¶ 3} Fearing that he was going to be shot, Meatchem charged Harris
and knocked the gun out of his hands. Kelly picked up the gun and fired four
rounds. The first round was aimed at James Lawrence, but it missed. The next
three rounds were aimed at Meatchem and Dwight Lawrence, who were
struggling with Harris. Two of the rounds struck Meatchem, and one struck
Dwight Lawrence. Harris and Kelly then fled the apartment.
       {¶ 4} A grand jury indicted Harris on three counts of aggravated robbery
in violation of R.C. 2911.01(A)(1), three counts of robbery in violation of R.C.
2911.02(A)(2), three counts of felonious assault in violation of R.C.
2903.11(A)(2), and two counts of felonious assault in violation of R.C.
2903.11(A)(1). All counts contained firearm specifications as well.




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          {¶ 5} A jury found Harris guilty on all counts and all specifications. The
court imposed prison terms for each offense and ordered that they be served
consecutively. The court of appeals affirmed the judgment of the trial court.
          {¶ 6} We accepted Harris’s discretionary appeal, in which he asserts that
aggravated robbery and robbery are allied offenses of similar import and that a
defendant cannot be convicted on both offenses if the charges originate from the
same conduct. Harris also asserts that a defendant may not be convicted of two
counts of felonious assault charged pursuant to R.C. 2903.11(A)(1) and
2903.11(A)(2) if both charges arise from the same conduct toward the same
victim.
                                    III. Analysis
                                   A. R.C. 2941.25
          {¶ 7} Ohio’s multiple-count statute, R.C. 2941.25, provides:
          {¶ 8} “(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.
          {¶ 9} “(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.”
          {¶ 10} This court has interpreted R.C. 2941.25 to involve a two-step
analysis. “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




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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.”            (Emphasis sic.) State v.
Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
       {¶ 11} In State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699,
paragraph one of the syllabus, we held that “[u]nder an R.C. 2941.25(A) analysis,
the statutorily defined elements of offenses that are claimed to be of similar
import are compared in the abstract.” (Emphasis sic.) We determined that, as
opposed to considering elements within the context of the facts of each case,
comparing the elements in the abstract “is the more functional test, producing
‘clear legal lines capable of application in particular cases.’ ” Id. at 636, quoting
Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 148, 119 S.Ct. 1167,
143 L.Ed.2d 238.
       {¶ 12} However, some courts interpreted Rance to require a strict textual
comparison of the elements of the compared offenses under R.C. 2941.25(A).
State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 21.
We concluded that that interpretation “conflicts with legislative intent and causes
inconsistent and absurd results.” Id. at ¶ 27. Thus, in Cabrales we clarified
Rance and held that “in determining whether offenses are allied offenses of
similar import under R.C. 2941.25(A), Rance requires courts to compare the
elements of offenses in the abstract, i.e., without considering the evidence in the
case, but does not require an exact alignment of elements.” Id.
       {¶ 13} Accordingly, in Cabrales we held that even though the elements of
possession of a controlled substance under R.C. 2925.11(A) and trafficking in a
controlled substance under R.C. 2925.03(A)(2) (“knowingly * * * [p]repare for
shipment, ship, transport, deliver, prepare for distribution, or distribute a
controlled substance”) did not exactly align, the crimes were, nevertheless, allied
offenses of similar import because trafficking in a controlled substance




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necessarily results in possession of the same controlled substance. Cabrales, 118
Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 30.
        {¶ 14} Having reviewed Cabrales’s clarification of Rance, we now
examine the offenses at issue in this case.
                        B. Robbery and Aggravated Robbery
        {¶ 15} Each count of robbery herein was charged under R.C.
2911.02(A)(2), which provides that no person, in attempting to commit or
committing a theft offense, or fleeing immediately thereafter, shall “[i]nflict,
attempt to inflict, or threaten to inflict physical harm on another.” Each count of
aggravated robbery was charged under R.C. 2911.01(A)(1), which provides that
no person, in attempting to commit or committing a theft offense, or in fleeing
immediately thereafter, shall “[h]ave 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.”
        {¶ 16} In State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d
154, we applied Cabrales to determine whether kidnapping defined in R.C.
2905.01(A)(2)and aggravated robbery defined in R.C. 2911.01(A)(1) were allied
offenses of similar import.      In comparing these offenses, we explained, “In
essence, the elements to be compared in the abstract are the restraint, by force,
threat, or deception, of the liberty of another to ‘facilitate the commission of any
felony’ (kidnapping, R.C. 2905.01(A)(2)) and having ‘a deadly weapon on or
about the offender's person or under the offender's control and either display[ing]
the weapon, brandish[ing] it, indicat[ing] that the offender possesses it, or us[ing]
it’ in attempting to commit or committing a theft offense (aggravated robbery,
R.C. 2911.01(A)(1)). It is difficult to see how the presence of a weapon that has
been shown or used, or whose possession has been made known to the victim
during the commission of a theft offense, does not also forcibly restrain the liberty
of another.” Id. at ¶ 21. Thus, we held that even though the elements of these




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offenses do not exactly align, they are “ ‘so similar that the commission of one
offense will necessarily result in commission of the other.’ Cabrales, 118 Ohio
St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph one of the syllabus.” Id.
        {¶ 17} Similar reasoning applies when comparing robbery and aggravated
robbery. The possession of a deadly weapon, used, shown, brandished, or made
known to the victim during a theft or flight from a theft also constitutes a threat to
inflict physical harm on that victim. Thus, robbery defined in R.C. 2911.02(A)(2)
and aggravated robbery defined in R.C. 2911.01(A)(1) are so similar that the
commission of one offense will result in commission of the other. Accordingly,
we hold that robbery defined in R.C. 2911.02(A)(2) and aggravated robbery
defined in R.C. 2911.01(A)(1) are allied offenses of similar import, and therefore
a defendant cannot be convicted of both offenses when both are committed with
the same animus against the same victim.
                 C. Felonious Assault: R.C. 2903.11 (A)(1) and (A)(2)
        {¶ 18} In State v. Cotton (June 20, 2007), Hamilton App. No. C-060264,
the defendant stabbed one victim, three times. He was convicted of felonious
assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2).
The trial court imposed sentences for both convictions. The court of appeals
affirmed.
        {¶ 19} We reversed the judgment of the court of appeals in Cotton on the
authority of State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
149,1 holding that felonious assaults in violation of R.C. 2903.11(A)(1) and (2)
are allied offenses of similar import under R.C. 2941.25(A). State v. Cotton, 120
Ohio St.3d 321, 2008-Ohio-6249, 898 N.E.2d 959.




1. In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 40, we held that
“aggravated assault[s] in violation of R.C. 2903.12(A)(1) and (A)(2) are allied offenses of similar
import.”




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       {¶ 20} On the authority of Cotton, we affirm that convictions for
felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in
R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a
defendant cannot be convicted of both offenses when both are committed with the
same animus against the same victim.
                                     D. Merger
       {¶ 21} Two allied offenses of similar import must be merged into a single
conviction. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶
42. In merging two allied offenses of similar import, we have held: “An accused
may be tried for both but may be convicted and sentenced for only one. The
choice is given to the prosecution to pursue one offense or the other, and it is
plainly the intent of the General Assembly that the election may be of either
offense.” (Emphasis added.) Maumee v. Geiger (1976), 45 Ohio St.2d 238, 244,
74 O.O.2d 380, 344 N.E.2d 133.
       {¶ 22} A final judgment of conviction occurs when the judgment contains
“(1) the guilty plea, the jury verdict, or the finding of the court upon which the
conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry
on the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, 893 N.E.2d 163, syllabus.
       {¶ 23} In light of Baker, we hold that Geiger requires the prosecution to
elect which offense it will pursue after a finding of guilt but prior to sentencing.
                                   IV. Conclusion
       {¶ 24} Harris was convicted on three counts of robbery and three counts
of aggravated robbery against Dwight Lawrence, James Lawrence, and Demon
Meatchem. Because all six offenses were committed simultaneously, we hold
that all were committed with the same animus. Thus, the six convictions for
robbery and aggravated robbery must be merged into a total of three convictions




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for robbery or aggravated robbery against the three victims, to be determined by
the state on remand.
           {¶ 25} Harris was also convicted on one count of felonious assault under
R.C. 2903.11(A)(1) and one count of felonious assault under R.C. 2903.11(A)(2)
for his actions against Dwight Lawrence. During the robbery, Harris struck
Dwight Lawrence with the gun. Later, Kelly shot Dwight Lawrence one time. It
is unclear from the record and the jury instructions whether the state charged
Harris with striking Dwight Lawrence with the gun as part of the robbery, or
whether the striking with the gun and later shooting were separately charged as
assaults. We remand this cause to the trial court to determine this issue and
whether the assaults, if separately charged, were committed with the same
animus.
           {¶ 26} Finally, Harris was convicted on two counts of felonious assault
under R.C. 2903.11(A)(1) and (A)(2), for two gunshot wounds inflicted on
Meatchem. Under the facts in this case, we hold that both assault offenses were
committed with the same animus. Therefore, Harris’s convictions for felonious
assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2)
must be merged to one conviction, to be determined by the state on remand.
           {¶ 27} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court for proceedings consistent with our opinion.
                                                                Judgment reversed
                                                              and cause remanded.
           O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
           MOYER, C.J., and PFEIFER and LANZINGER, JJ., concur in part and dissent
in part.
                                   __________________
           CUPP, J., concurring.




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       {¶ 28} I continue to have serious concern with the majority’s reliance
upon State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154. I
joined the dissent in Winn because I believed that the majority’s gloss on State v.
Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, was likely to
generate increased confusion among the trial and appellate courts on the issue of
when offenses are allied offenses of similar import under R.C. 2941.25.
       {¶ 29} The dissent in Winn pointed out that applying the Cabrales test
still required 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.’ (Emphasis added.)” State v. Winn at ¶ 27 (Moyer, C.J., dissenting),
quoting State v. Cabrales at ¶ 26. As the Chief Justice’s dissent noted, the Winn
majority opinion amounted to “a rewriting of the Cabrales test,” and “[i]nstead of
requiring that the commission of one offense necessarily results in the
commission of the other, the [Winn opinion] requires that the commission of one
offense probably results in the commission of the other.” (Emphasis sic.) State v.
Winn at ¶ 32, 33. Winn, in my view, introduced an element of probability into an
already difficult-to-apply test involving a reasoned search for hypotheticals.
       {¶ 30} While the Cabrales test looked to the language of the statutes at
issue to determine whether commission of one offense necessarily resulted in
commission of the other offense, Winn requires a subjective determination about
when hypothetical alternative ways of committing a crime are so unlikely to occur
that they are improbable and, therefore, insufficient to defeat a conclusion that the
crimes are allied offenses under R.C. 2941.25. See State v. Winn, 121 Ohio St.3d
413, 2009-Ohio-1059, 905 N.E.2d 154, ¶ 24 (“We would be hard pressed to find
any offenses allied if we had to find that there is no conceivable situation in which
one crime can be committed without the other”). The Winn approach—
determining whether commission of one offense probably results in commission




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of the other—requires a subjective determination about which reasonable minds
are likely to differ.
        {¶ 31} In this case, comparing the elements of the aggravated robbery and
robbery statutes at issue, committing aggravated robbery under R.C.
2911.01(A)(1) will not necessarily result in commission of robbery under R.C.
2911.02(A)(2). This is similar to Winn, in which there were several ways in which
an aggravated robbery could be committed without a kidnapping also being
committed, as the dissent in that case noted. Id. at ¶ 29 (Moyer, C.J., dissenting).
        {¶ 32} Because Winn garnered the support of a majority of this court for
its holding, it is now the controlling law on this issue. Only case-by-case
experience, as courts attempt to apply the decision in Winn, will determine
whether it was a wise decision. But until experience sheds its guiding light, I am
bound by the principle of stare decisis. Therefore, I reluctantly concur.
        O’CONNOR, J., concurs in the foregoing opinion.
                               __________________
        LANZINGER, J., concurring in part and dissenting in part.
        {¶ 33} I agree with the majority that robbery under R.C. 2911.02(A)(2)
and aggravated robbery under R.C. 2911.01(A)(1) are allied offenses of similar
import, and that felonious assault under R.C. 2903.11(A)(1) and felonious assault
under R.C. 2903.11(A)(2) are allied offenses of similar import. I also agree that
the six convictions for robbery and aggravated robbery must be merged to a total
of three convictions for robbery or aggravated robbery, and that the two counts of
felonious assault involving Meatchem must be merged into one for sentencing
purposes.
        {¶ 34} I dissent from the majority’s conclusion that the case must be
remanded to the trial court for a determination of whether the state charged Harris
with striking Dwight Lawrence with the gun as part of the robbery or whether the




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striking with the gun and the later shooting of Dwight Lawrence were separately
charged as assaults.
       {¶ 35} The majority asserts that it is unclear from the record and jury
instructions whether the state charged Harris with felonious assault resulting from
his striking of Dwight Lawrence. To the contrary, in the state’s closing argument
at trial, it sought convictions for felonious assault only for the shootings. The
state mentioned Harris’s act of striking Dwight Lawrence in the head only in the
context of the charges of aggravated robbery. Later in the closing argument, the
state transitioned into a discussion of the charges of felonious assault, stating,
“Moving down to the felonious assaults, that’s where the shootings come in.”
The state asserted that each shot that was fired and hit a victim was sufficient to
support convictions for felonious assault under both R.C. 2903.11(A)(1) and
2903.11(A)(2). Clearly, then, the state sought to charge Harris with felonious
assaults arising only out of the gunshots.
       {¶ 36} For these reasons, I concur in the syllabus of the court and the
majority’s conclusions concerning the merger of the robbery and aggravated
robbery counts and the merger of the two counts of felonious assault involving
Meatchem. I dissent to the extent that the majority does not merge the two counts
of felonious assault involving Dwight Lawrence.
       MOYER, C.J., and PFEIFER, J., concur in the foregoing opinion.
                               __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and James
Michael Keeling, Assistant Prosecuting Attorney, for appellee.
       Theresa G. Haire, Assistant Public Defender, for appellant.
       Robert L. Tobik, Cuyahoga County Public Defender, and Jon T. Martin
and Cullen Sweeney, Assistant Public Defenders, urging reversal for amicus
curiae, Cuyahoga County Public Defender.
                            ______________________




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