Opinion
Case No. 17CA1045
03-28-2018
STATE OF OHIO, Plaintiff-Appellant, v. GREGORY WRIGHT, Defendant-Appellee.
APPEARANCES: David Kelley, Adams County Prosecutor, and Ariana Bowles, Adams County Assistant Prosecutor, West Union, Ohio, for Appellant. Tyler E. Cantrell, Offices of Young & Caldwell, LLC, West Union, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
APPEARANCES:
David Kelley, Adams County Prosecutor, and Ariana Bowles, Adams County Assistant Prosecutor, West Union, Ohio, for Appellant. Tyler E. Cantrell, Offices of Young & Caldwell, LLC, West Union, Ohio, for Appellee. McFarland, J.
{¶1} The State of Ohio appeals the March 15, 2017 judgment entry of the Adams County Common Pleas Court which dismissed Counts I, III, and IV of an indictment against Appellee Gregory Wright. On appeal, the State asserts that the trial court erred by granting Appellee's motion to dismiss those counts against him based upon double jeopardy. Upon review, we find the State's argument has merit. For the reasons which follow, we reverse the judgment of the trial court and remand.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} This matter arises from a traffic stop on December 1, 2016 in Adams County, Ohio. On that date, Appellee was stopped by Detective Sam Purdin of the Adams County Sheriff's Department. Due to Purdin's belief that Appellee was operating his vehicle under the influence of a drug or drugs of abuse, Purdin requested a urine sample. Appellee was also searched and Purdin located one white pill. Appellee was charged with operating a vehicle while under the influence of alcohol or drug of abuse, a violation of R.C. 4511.19(A)(1)(a) (OVI), and a traffic lane violation, in Adams County Court case numbers TRC1602533A/B.
{¶3} Detective Purdin also filed a criminal complaint that Appellee knowingly possessed heroin, a violation of R.C. 2925.11(A), and a felony of the fifth degree. Appellee was scheduled for a preliminary hearing of the matter, Adams County Court case number CRA160580, on December 6, 2016. Appellee was provided court-appointed counsel. At the preliminary hearing, the court found probable cause to bind over Appellee's felony possession charge to the Adams County Grand Jury. In the Adams County Common Pleas Court, this case was originally designated case number CRI20160187.
{¶4} Later, the test of Appellee's urine sample obtained as a result of the December 1st traffic stop showed the presence of several additional illegal substances. On December 15, 2016, Appellee was charged in a four-count indictment for violations of R.C. 2925.11(A), all felonies of the fifth degree. The indictment specified as follows: (Count 1) aggravated possession of oxycodone; (Count 2) aggravated possession of acetaminophen/hydrocodone; (Count 3) aggravated possession of methamphetamine; and (Count 4) possession of heroin.
{¶5} On December 19, 2016, Appellee was arraigned in the Adams County Court of Common Pleas and entered pleas of not guilty to all counts. On December 20, 2016, Appellee's counsel as to the criminal indictment filed a notice of representation, jury demand, request for discovery, and request for bill of particulars. The matter was set for a pretrial hearing to be held January 13, 2017.
On December 21, 2016, the trial court filed a journal entry combining Adams County case numbers CRI20160186 and CRI201600187 and ordering the cases to proceed as one.
{¶6} On January 23, 2017, Appellee's OVI charge was amended to physical control of a vehicle while under the influence, a violation of R.C.4511.194. Appellee pleaded guilty to the amended charge in Adams County Court and was sentenced to a fine, costs, suspended jail sentence, and probation. The accompanying misdemeanor traffic charge was dismissed.
{¶7} Appellee filed a motion on January 30, 2017 in the Adams County Common Pleas Court to dismiss all counts contained in the indictment against him on the grounds of double jeopardy. On March 3, 2017, the common pleas court judge held an oral hearing on Appellee's motion to dismiss. The trial court found as follows:
"Prior to the hearing the Defendant, through counsel withdrew the motion to dismiss count II as the count's bill of particulars will be amended as the court deals with a pill and not substances within the body. * * * 1. The court hereby dismisses with prejudice Counts I, III, and IV of the indictment as they would subject the Defendant to double jeopardy."
{¶8} The trial court filed the judgment entry journalizing the decision on March 15, 2017. This timely appeal followed.
On June 28, 2016, the State filed a "motion to overturn dismissal of Defendant's charges and memorandum in support," asking this court to overturn the decision of the trial court dismissing the charges against Appellant on the grounds of double jeopardy. We filed a Magistrate's Order on July 6, 2017 striking the motion for failure to comply with App.R. 16. The State subsequently complied with the order.
ASSIGNMENT OF ERROR
"I. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION TO DISMISS ON COUNTS ONE, THREE, AND FOUR BASED ON DEFENDANT'S CLAIM OF DOUBLE JEOPARDY."
STANDARD OF REVIEW
{¶9} Pursuant to R.C. 2945.67(A), a "prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information * * *." Appellate courts review de novo the denial of a motion to dismiss an indictment on the grounds of double jeopardy, because it is a pure question of law. State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 13. See State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16, citing Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2nd Dist.1992).
LEGAL ANALYSIS
{¶10} "Where successive prosecutions are at stake, the double jeopardy guarantee serves 'a constitutional policy of finality for the defendant's benefit.' " Mutter, supra, at ¶ 14, quoting State v. Liberatore, 4 Ohio St.3d 13, 14, 445 N.E.2d 1116 (1983), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547 (1971). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." See Mutter, supra, at ¶ 15. Through the Fourteenth Amendment to the United States Constitution, this protection applies to individuals prosecuted by the state of Ohio. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 10, citing Benton v. Maryland, 395 U.S. 784, 786, 89 S.Ct. 2056 (1969). The Ohio Constitution provides, "No person shall be twice put in jeopardy for the same offense." Ohio Constitution, Article I, Section 10. The protections afforded by the Ohio and United States Constitution's Double Jeopardy Clauses are coextensive. State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996).
{¶11} The Double Jeopardy Clauses protect against three abuses: (1) "a second prosecution for the same offense after acquittal," (2) "a second prosecution for the same offense after conviction," and (3) "multiple punishments for the same offense." Mutter, supra, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989). Here, we are concerned with the protection against a second prosecution in common pleas court after Appellee's conviction in county court. Appellee asserts the State of Ohio is trying to punish him twice for possessing drugs through the presence in his urine. However, the precise question in this case is whether the State would violate the constitutional guarantee against double jeopardy if it prosecuted Appellee on the possession charges under R.C. 2929.11(A), after his conviction for physical control of a vehicle while under the influence.
{¶12} In Mutter, supra, at 17, the Supreme Court of Ohio noted its historical reliance on the Blockburger test to determine whether two prosecutions involve the same offense. "In determining whether an accused is being successively prosecuted for the 'same offense,' the court in State v. Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975), adopted the so-called 'same elements' test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 (1932), * * *." State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 421 (1975), at ¶ 18; see also State v. Delfino, 22 Ohio St.3d 270, 273, 490 N.E.2d 884 (1986). The Blockburger test applies "where the same act or transaction constitutes a violation of two distinct statutory provisions" and requires the reviewing court to evaluate the elements of each statutory provision to determine "whether each provision requires proof of a fact which the other does not." Blockburger at 304, 52 S.Ct. 180. " 'This test focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case.' " Zima at ¶ 20, quoting State v. Thomas, 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on other grounds, State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), syllabus.
{¶13} The United States Supreme Court has also summarized the Blockburger test as an inquiry that asks "whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Mutter, supra, quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849 (1993). If, under such test, the offenses have the same statutory elements or if one offense is a lesser included offense of the other, the subsequent prosecution is barred. State v. Goodman, 9th Dist. Medina No. 3220-M, 2002-Ohio-818, *3; Blockburger, 284 U.S. at 304. In the court's discussion of the Blockburger test in State v. Gonzales, 151 Ohio App.3d 160, 2002-Ohio-493, 783 N.E.2d 9037, (1st Dist.), ¶ 27, the appellate court observed: "This test focuses on the elements of the statutes used to prove the violations and not on the conduct of the defendant." See also State v. Moore, 110 Ohio App.3d at 652-653, 675 N.E.2d 13 (1st Dist.1996).
{¶14} Here the State argues applying the Blockburger test, it is obvious that the two offenses contain wholly separate and distinct elements. The State asserts while both charges against Appellee include an element relating to a drug of abuse/controlled substance, for the offense of physical control, the State must prove two additional elements: that the defendant was under the influence and that he was in control of a motor vehicle. By contrast, possession can be proven without a defendant being under the influence. The State concludes the two offenses can be easily separated by the elements to show that they are different crimes and different charges. Therefore, the charges here are not barred by double jeopardy.
{¶15} As a preliminary matter, we observe Appellee couches his argument on appeal in the context of a double jeopardy violation claim, yet it essentially is an evidentiary one that the possession charges stem only from the subsequent urine test results. Appellee points out his physical control conviction related to use and possession of drugs in his urine only. The December urine test, subsequent to the same December traffic stop, which was used to convict Appellee of physical control, was the only evidence of the three other drugs for which Appellee allegedly possessed and used. Appellee argues the State of Ohio is trying to punish him twice for the same act or conduct - possessing the drugs solely as a result of their presence his urine. (Emphasis added.) Appellee concludes the trial court correctly found that he was being subjected to double jeopardy and correctly granted his motion to dismiss.
{¶16} This court has held that "the fact that a person's urine contains cocaine metabolites does not, standing alone, constitute sufficient evidence that the person knowingly ingested the controlled substance." State v. Lowe, 86 Ohio App.3d 749, 621 N.E.2d 1244 (4th Dist.1993). While Appellee's urine test is some evidence of possession, and the State may have difficulty proving possession in the absence of additional evidence of intent or knowledge, the fact that the State filed possession charges based on the subsequently obtained urine test does not, as a general rule, violate double jeopardy protections.
{¶17} At the hearing on Appellee's motion to dismiss, the trial court questioned why the criminal and traffic cases were not filed together in common pleas court, which would have put Appellee on notice during his earlier plea negotiations. " 'An exception to the Blockburger test exists where the state is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.' " State v. Kimble, 123 Ohio Misc.2d 67789 N.E.2d 1195, 2003-Ohio-2779, *3; State v. Goodman, 9th Dist. No. 3220-M, 2002-Ohio-818, 2002 WL 274639, ¶ 18, quoting State v. Tolbert, 60 Ohio St.3d 89, 573 N.E.2d 617 (1991), paragraph two of the syllabus. The State remains free to charge a defendant with additional offenses arising out of the criminal transaction when these additional offenses were not encompassed by the charges in the initial case. State v. Poole, 127 Ohio St.3d 1209, 2010-Ohio-4988, 936 N.E.2d 501, ¶ 9; Tolbert, supra. It is not uncommon for additional charges to arise, dependent upon lab analysis not available to the State at the time of a traffic stop.
Here, the record demonstrates that at the time Appellee entered his plea in county court, he was well aware of the criminal indictment. Furthermore, the only evidence of plea negotiations is the county court's entry of conviction which indicates the "B" traffic charge was dismissed in exchange for Appellee's plea to the amended "A" charge. There is no evidence in the record to suggest Appellee relied on any promise that the State would not pursue the felony charges as an inducement to plead to the physical control in the county court.
For example, in the context of appeal of speedy trial issues, the "Second, Fourth, Ninth, Eleventh, and Twelfth District Courts of Appeals have all held that a subsequent indictment which was dependent upon a lab analysis that was not available to the state at the time of the original indictment starts the running of a new speedy trial clock." State v. Mohamed, 10th Dist. Franklin No. 08AP-960, 2009-Ohio-6658, ¶ 42. --------
{¶18} We begin our analysis by setting forth the elements of the offenses. Appellee pleaded guilty to physical control of a vehicle while under the influence, R.C. 4511.194(B)(1), a misdemeanor offense, which provides: "No person shall be in physical control of a vehicle * * * if, at the time of the physical control, * * * [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them." Appellee was subsequently charged with four felony violations of R.C. 2925.11(A), which provides: "No person shall knowingly obtain, possess, or use a controlled substance * * *."
{¶19} Applying Blockburger, while a person may knowingly obtain, possess or use a controlled substance during the act of being in physical control of a motor vehicle or while under the influence of alcohol or a drug of abuse, a person does not have to be in physical control of a motor vehicle and does not have to be under the influence of alcohol or a drug of abuse, to knowingly obtain, possess or use a controlled substance. A violation of R.C. 4511.194 requires proof of two additional elements: (1) that the conduct involved a motor vehicle; and (2) that the conduct involved being "under the influence." Therefore, the offenses are separate and distinct.
{¶20} Furthermore, possession of drugs requires proof of a culpable mental state. In State v Swiger, 9th Dist. Summit No. 26556, 2013-Ohio-3519, ¶ 16, an appeal involving an OVI conviction, the appellate court stated:
"This Court has recognized that 'a strict liability offense does not implicate a culpable mental state.' State v. Scott, 9th Dist. Summit No. 24149, 2008-Ohio-6439, ¶ 6. Strict liability is imposed in circumstances:The Swiger court discussed the legislative purpose behind the OVI statute, R.C. 4511.19(A)(1), which is to discourage anyone under the influence from operating a vehicle, as "[a] person under the influence of alcohol or any drug of abuse behind the wheel of a motor vehicle is [an] obvious hazard." Id., quoting State v. Cleary, 22 Ohio St.3d 198, 201, 490 N.E.2d 574, (1986), superseded on other grounds by statute. Swiger held "[T]he State need not prove mens rea to convict one who operates a vehicle while under the influence. Swiger, supra, quoting Akron v. Peoples, 9th Dist. Summit C.A. No. 25398, 2011-Ohio-579, at ¶ 10.
'where the purpose of [a] statute is to protect the victim[ ] regardless of the mental state of the defendant;*** where there exists a serious and substantial harm to the public from such conduct; * **where the offense belongs to the mala prohibita class of offenses which are not inherently wrong in and of themselves unless designated as wrong by the legislature * * *.' State v. Buehler Food Markets, Inc., 50 Ohio App.3d 29, 31 (9th Dist.1989)."
{¶21} It is reasonable to conclude that the purpose behind the physical control statute, similarly, is to protect victims and the public, and that mental state is irrelevant. The physical control statute does not set forth a culpable mental state. In State v. Trimble, 4th Dist. Pickaway No. 13CA8, 2013-Ohio-5094, Trimble argued that double jeopardy protection was violated when after being previously convicted of physical control, she was subsequently charged with aggravated vehicular assault. The offenses Appellee is alleged to have violated are distinct for the reason that possession of drugs also requires proof of a culpable mental state.
{¶22} Based on the foregoing, we find "physical control of a motor vehicle while under the influence" and "possession of drugs" constitute two separate and distinct statutory offenses. Because the two offenses are distinct from each other, double jeopardy does not apply to bar Appellee's successive prosecution for the possession charges in the common pleas court. Accordingly, we hereby sustain the State of Ohio's sole assignment of error and reverse the judgment of the trial court and further remand this case to the trial court.
JUDGMENT REVERSED AND CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and CAUSE REMANDED and costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellee to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellee to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J.: Concurs in Judgment Only.
Hoover, P.J.: Dissents.
For the Court,
BY: /s/_________
Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.