STATE OF OHIO v. ANTHONY L. DIXON
C.A. CASE NO. 24281
T.C. NO. 2009 CR 4134/3
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
October 14, 2011
2011-Ohio-5290
(Criminal appeal from Common Pleas Court)
RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
O P I N I O N
FROELICH, J.
{¶ 1} After the Montgomery County Common Pleas Court overruled his motion to dismiss his indictment on doublе jeopardy grounds, Anthony L. Dixon pled no contest to aggravated possession of drugs, in violation of
{¶ 2} Dixon appeals from his conviction, challenging the trial court‘s denial of his motion to dismiss. For the following reasons, the trial court‘s judgment will be affirmed.
I
{¶ 3} The sole witness at the hearing on Dixon‘s motion to dismiss was Douglas Kowalski, a narcоtics detective with the Kettering Police Department. Kowalski‘s testimony established the following facts.
{¶ 4} On November 11, 2009, Kowalski and other Kettering police officers executed a search warrant at 1732 Renee Drive, Apartment 103. When Kowalski entered, he smelled an overwhelming odor of burnt marijuana inside the apartment, and he observed pills, marijuana, and “other various items of contraband” scattered throughout the apartment. A marijuana pipe, rolling papers, pills and a plate were lоcated in the living room. A variety of pills, a digital scale with cocaine and marijuana residue, two snorting straws and a plate were located on the dining room table. A drug in powder form, divided into five lines, and one of the straws were on the dining room platе. The officers tested the powder for cocaine and heroin with negative results. The substance was sent to the laboratory and subsequently identified as oxycodone, a Schedule II drug.1
{¶ 6} Later that night, Dixon and the other adults were taken to the Kettering jail. The following day, Dixon was charged with misdemeanor possession of drugs under
{¶ 7} On November 19, 2009, Dixon pled guilty in the Kettering Municipal Court to the misdеmeanor drug possession charge; in exchange, the drug
{¶ 8} It appears to be undisputed that Dixon entered his guilty plea in the municipal court before the рowder was identified as oxycodone. It is unclear, however, whether the identity of the powder was known prior to the December 18, 2009 sentencing.
{¶ 9} In January 2010, Dixon was indicted for possession of oxycodone, in violation of
{¶ 10} Dixon moved to dismiss the indictment on double jeopardy grounds. Dixon argued that he had already been convicted and sentenced for drug possession and possession of drug paraphernalia arising out of the events on November 11, 2009. After a hearing, the trial court overruled the motion with respect to the possession of oxycodone charge and the portion of the possession of drug paraphеrnalia charge based on the plate. The court dismissed the portion of the possession of drug paraphernalia charge based on the straw because that
{¶ 11} As stated above, Dixon subsequently pled no contest to aggravated drug possession (Schedule I or II) and he was sentenced accordingly. Dixon appeals from his conviction.
II
{¶ 12} In his sole assignment of error, Dixon claims that the trial court erred in denying his motion to dismiss on double jeopardy grounds. He argues that the State was not permitted to charge him with felony drug offenses after he had already been prosecuted in municipal court on the same charges based on the same incident.
{¶ 13} The Double Jeopardy Clause of the
{¶ 14} The prohibition against double jeopardy has three distinct aspects. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656. Dixon‘s argument focuses on the prohibition against successive prosecutions and
{¶ 15} The State responds that this situation is governed by State v. Delfino (1986), 22 Ohio St.3d 270, and that double jeopardy did not bar the felony charges. In Delfino, a mirror with a trace amount of cocaine on it, a razor blade, two straws, and a metal pipe with a small amount of marijuana were seized from the defendant‘s car at the time of his arrest. He subsequently pled guilty in municipal court tо drug abuse arising out of the possession of marijuana in violation of
{¶ 16} On appeal, the Ohio Supreme Court first noted that the rule of “separate sovereigns” did not apply where the first prosecution was brought in the municipal court and the second prosecution was brought in the common pleas сourt. Id. at 273. As long as the prosecutions were for the same offense, the subsequent prosecution in the common pleas court would be barred by double jeopardy. Id. The court concluded, however, that the simultaneous possession of
{¶ 17} The parties dispute whether Dixon or the State bore the burden of proof on Dixon‘s motion to dismiss the indictment on double jeоpardy grounds. Although we find little guidance among Ohio courts, one appellate district has held that the burden of proof is on the defendant. See State v. Busby, Summit App. No. 21229, 2003-Ohio-3361, ¶7. Courts of other states and federal courts are divided on the issue. Compare, for example, State v. Mullenix, 73 S.W.3d 32, 34 (Mo.App. 2002)(“Becаuse double jeopardy is an affirmative defense, it is the defendant‘s burden to prove that double jeopardy applies.“) with U.S. v. Mendoza (N.D.Cal.,2005), 390 F.Supp.2d 925, 929 (recognizing a shifting burden, with the burden of proof remaining with the defendant), and with United States v. DelVecchio (2d Cir. 1986), 800 F.2d 21, 22 (stating that, where a non-frivolous double jeopardy claim is made, the prosecution bears the burden to prove by a preponderance of the evidence that double jeopardy does not apply). Assuming, for sake of argument, that the State bore the burden to establish that no double jeopardy viоlation exists in this case, the State has met that burden.
{¶ 18} According to Kowalski‘s testimony, there were multiple drugs – including various prescription pills – present in the apartment where Dixon was arrested. Dixon claims that the municipal court charges were based solely on his admission to possessing a plate and the straw and the drug in powder form that were on the plate. However, the misdemeanor possession of drug paraphernalia charge, which was dismissed as part of the municipal court plea, сharged Dixon with possession of a marijuana smoking pipe, a digital scale, snorting straw and rolling papers, which were beyond the scope of Dixon‘s admission. The misdemeanor drug possession charge also could have been based on the non-рowder prescription pills that were located in the apartment; Kowalski testified that the misdemeanor drug possession charge was, in fact, based on the pills that were lying around the apartment.
{¶ 19} As stated above, the criminal complaint for drug possession that was filed in the municipal court did not specify the “scheduled prescription medication” that formed the basis for the misdemeanor drug possession charge. Dixon has not offered a transcript of the plea hearing, an affidavit from him оr his counsel in the
{¶ 20} Because Dixon‘s conviction for drug possession in the municipal court could have been based on pills other than oxycodone and the record does not establish that his plea in municipal court was intended to encompass the oxycodone, the trial court did not err in concluding that the prosecution for aggravated drug possession in common pleas court was not a second prosecution for the same offense to which Dixon pled guilty in municipal court.
{¶ 21} Dixon‘s assignment of error is overruled.
III
{¶ 22} The trial court‘s judgment will be affirmed.
FROELICH, J.
DONOVAN, J. and HALL, J., concur.
Richard A. Nystrom
Hon. Steven K. Dankof