441 N.E.2d 1126 | Ohio Ct. App. | 1981
Defendant appeals from the refusal of the trial court to dismiss the indictment against him on the grounds of double jeopardy. (The court's entry refusing dismissal was a final appealable order. State v. Thomas [1980],
Mary Swart and Alma Ferguson accepted a ride from a stranger, a white male adult, to go from Yeatman's Cove in Cincinnati back to Kentucky. He drove them south on I-75 across the river to the Buttermilk Pike interchange in Kentucky, where he allowed Alma Ferguson to leave the vehicle but forcibly prevented Mary Swart from leaving. He drove north back across the Ohio River and raped Mary Swart in a secluded spot in Ohio. He then transported her back to Kentucky where he let her go.
Defendant Brown was identified by Mary Swart as the perpetrator. He was indicted for kidnapping in Kentucky and for rape in Ohio. Defendant maintains that he was wrongfully identified, that he was not the offender and that he was elsewhere on the night in question. The Kentucky charges of kidnapping were tried first, and the defendant did not contest the forcible transportation or the rape, but asserted the defense of alibi. Our review of the record of the kidnapping trial confirms the defendant's claim that the only issue in controversy was the identity of the perpetrator. The Kentucky jury returned a general verdict of not guilty. Thereafter defendant filed in this Ohio case his motion to dismiss the rape charge, which was denied.
Defendant's claim of error fails for several reasons. The constitutional guarantee against double jeopardy protects persons against successive trials for the same offense. Under Ohio law there were two separate and distinct offenses. Kidnapping under K.R.S 509.040(1)(B) is unlawfully restraining another person with intent to accomplish or to advance the commission of a felony (rape), very similar to the Ohio definition found in R.C.
Moreover, the laws of two different states were violated, and the dual sovereignty theory comes into play; that is, successive prosecutions are constitutionally valid when the same acts violate the laws of two separate and distinct jurisdictions. It is clear that the dual sovereignty theory allows successive prosecutions as between federal and state violations (Abbate v.United States [1959],
Brown contends that the doctrine of collateral estoppel precludes the relitigation in Ohio of the issue of identity as established in the Kentucky trial in his favor. As stated inAshe v. Swenson (1970),
Judgment affirmed.
DOAN and KLUSMEIER, JJ., concur.