¶1In his first assignment of error, Norman contends that the trial court should have merged the offenses of aggravated robbery and robbery for sentence as they are allied offenses of similar import. Under our former analysis employed in State v. Fields (1994), 97 Ohio App.3d 337, 646 N.E.2d 866, and State v. Lang (1995), 102 Ohio App.3d 243, 656 N.E.2d 1358, the offenses would be allied offenses of similar import. Both cases, however, employed the test promulgated in Newark v. Vazirani (1990) 48 Ohio St.3d 81,549 N.E.2d 520, which the Supreme Court has expressly overruled in State v. Rance (1999), 85 Ohio St.3d 632,710 N.E.2d 699. After Rance, the analysis in Fields and Lang is no longer the test for allied offenses of similar import.
¶2Rather, a strict comparison-of-the-statutory-elements test is now used to determine if cumulative punishments for two offenses in one trial violate double jeopardy. This test consists solely of a textual analysis of the statutory provisions to determine whether the elements of the charged offenses "correspond to such a degree that the commission of one crime will result in the commission of the other." Rance, supra, at 638, 710 N.E.2d at 704, quotingState v. Jones (1997), 78 Ohio St.3d 12, 14, 676 N.E.2d 80, 81. *203
¶3As the supreme court emphasized repeatedly in Rance, the comparison-of-the-statutory-elements test is performed in theabstract, with the focus solely on the statutory elements of the offenses, without reference to the facts of the particular case. If the elements of the offenses do not correspond to the necessary degree — that is, if each contains a separate element — "the offenses are of dissimilar import and the court's inquiry ends — the multiple convictions are permitted." Id. at 636, 710 N.E.2d at 699.
¶4The linchpin of the Rance test is the observation that the General Assembly may prescribe cumulative punishments for specific offenses that would have constituted the same offenses underBlockburger. The courtconcluded that R.C. 2941.25, the general codification of the test for allied offenses of similar import, "is a clear indication of the General Assembly's intent to permit cumulative sentencing for the commission of certain offenses."Id. at 636, 710 N.E.2d at 703.
¶5Here, as charged in the indictment, aggravated robbery requires proof that while committing a theft offense, the offender had a deadly weapon and brandished it. See R.C. 2911.01(A) (1). Robbery, as stated in the indictment, requires proof that while committing a theft offense, the offender threatened or attempted to inflict physical harm on another. See R.C. 2911.02(A) (2). After aligning the statutory elements of each offense in the abstract, we are convinced that each offense requires proof of an element that the other does not. Robbery requires proof of the threat of physical harm; aggravated robbery requires proof of brandishing a deadly weapon. An element of aggravated robbery, brandishing the weapon, is not required to prove the commission of robbery; conversely, a threat of physical harm is not required to prove aggravated robbery. We held exactly this in State v.Hendley (Aug. 4, 1999), Hamilton App. No. C-980687, unreported. As an intermediate appellate court, until the Ohio Supreme Court tells us otherwise, we must apply the clearly defined test for cumulative punishments in Rance, no matter if we disapprove of the result reached.
¶6As to Norman's contention that brandishing a deadly weapon "encompasses" the threat to inflict physical harm, the Ohio Supreme Court could not have been more definite in its mandate to compare the elements "in the abstract," and not "in light of the particular facts in the case." Rance, supra, at 636,710 N.E.2d at 699. In this respect, we have been admonished not to "usurp the legislative function by amending" R.C. 2911.01(A) (1) to read that one can commit aggravated robbery by threat to inflict physical harm. See State v. Meriweather (1980), 64 Ohio St.2d 57, 59,413 N.E.2d 790, *204 791. In Fields, this court observed that aggravated robbery and robbery would not be allied offenses of similar import "where the defendant was charged with aggravated robbery with a deadly weapon (R.C. 2911.01[A](1)) and robbery with force (R.C.2911.02)." Fields, supra, at 346, 646 N.E.2d at 872, fn. 6.
¶7Therefore, with respect to the issue of allied offenses, strictly on the basis of Rance, the trial court's multiple sentences must be affirmed.
¶8Hildebrandt, P.J., concurs.