STATE OF OHIO v. KENNETH POPE
Appellate Case No. 27231
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 7, 2017
2017-Ohio-1308
Trial Court Case No. 2016-CR-1095 (Criminal Appeal from Common Pleas Court)
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LARRY J. DENNY, Atty. Reg. No. 0020430, and MICHAEL MILLS, Atty. Reg. No. 0092133, 371 West First Street, Second Floor, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
Rendered on the 7th day of April, 2017.
{¶ 1} Defendant-appellant, Kenneth Pope, appeals from the decision of the Montgomery County Court of Common Pleas overruling his motion to dismiss an indictment charging him with one count of improperly handling a firearm in a motor vehicle while intoxicated. In support of his appeal, Pope claims that his constitutional protection against successive prosecutions under the Double Jeopardy Clause prevented the State from prosecuting him for that offense because he had already been charged and convicted for operating a vehicle while under the influence of alcohol (“OVI“) in a different court for the same incident. Specifically, Pope claims that the OVI offense is a lesser included offense and allied offense of similar import to the improperly handling a firearm charge. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On April 6, 2016, Pope was involved in a single-vehicle accident in Dayton, Ohio, when he drove into a cement curb and disabled his vehicle. At the scene of the accident, responding police officers discovered Pope sitting in the driver‘s seat of his vehicle and detected the odor of alcohol emanating from the vehicle. Pope admitted to the officers that he had consumed alcohol that evening and submitted to a breathalyzer test, which revealed his blood alcohol level was over the legal limit. During the encounter, Pope also admitted that he was in possession of a firearm. The officers thereafter searched Pope‘s vehicle and discovered a loaded firearm underneath the driver‘s seat.
{¶ 3} As a result of that incident, Pope was arrested and charged in the Dayton Municipal Court with misdemeanor OVI and failure to control violations. In relation to the same incident, Pope was subsequently indicted in the Montgomery County Court of Common Pleas for improperly handling a firearm in a motor vehicle while intoxicated in violation of
{¶ 4} While the Montgomery County case was pending, on June 10, 2016, Pope was convicted in the Dayton Municipal Court for the OVI offense, a first-degree misdemeanor in violation of
{¶ 5} On July 5, 2016, the trial court issued a written decision overruling Pope‘s motion to dismiss the indictment. Following that decision, Pope entered a no contest plea to the indicted charge, which the trial court accepted. After finding Pope guilty, the trial court sentenced Pope to community control sanctions not to exceed five years.
{¶ 6} Pope now appeals from his conviction, raising one assignment of error for this court‘s review.
Assignment of Error
{¶ 7} Pope‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT‘S MOTION TO DISMISS.
{¶ 8} Under his single assignment of error, Pope contends that the trial court erred in overruling his motion to dismiss the indictment charging him with improperly handling a firearm in a motor vehicle while intoxicated. In support of this claim, Pope maintains that his constitutional protection against double jeopardy should have barred the State from prosecuting him on the improperly handling a firearm offense because he claims that his prior OVI conviction in the Dayton Municipal Court is a lesser included offense. Pope also claims that the double jeopardy protection prohibits the State from prosecuting him for both the OVI and improperly handling a firearm offenses because they are allied offenses of similar import. We disagree with both of Pope‘s arguments.
Standard of Review and Double Jeopardy
{¶ 9} “We conduct a de novo review of a denial of a motion to dismiss an indictment on the grounds of double jeopardy.” (Citations omitted.) State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 54.
{¶ 10} “The Double Jeopardy Clause protects 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.‘” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). In this case, Pope‘s assignment of error only implicates the double jeopardy protection against successive prosecutions for the same offense following a conviction.
{¶ 11} The Supreme Court of Ohio has held that in determining whether a defendant is being successively prosecuted for the same offense within the meaning of the Double Jeopardy Clause, a court must apply the “same elements” test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 18. Accord State v. Matthews, 2d Dist. Montgomery No. 23953, 2011-Ohio-2067, ¶ 19. Under Blockburger, “the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an
{¶ 12} Therefore, the test in Blockburger focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case, and determines whether each offense contains an element not contained in the other. Id. at ¶ 20. If there is no such element, the offenses are considered to be the same offense and ” ‘double jeopardy bars additional punishment and successive prosecution.‘” Id., quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
Lesser Included Offenses
{¶ 13} As previously noted, Pope claims that the double jeopardy protection against successive prosecutions prohibits the State from prosecuting him for the improperly handling a firearm offense on grounds that his prior OVI is a lesser included offense to that charge.
{¶ 14} It is well established that the test in Blockburger “applies to bar successive prosecutions for greater and lesser included offenses[.]” Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542 at ¶ 41. Accord State v. Jordan, 10th Dist. Franklin Nos. 14AP-978, 14AP-979, 2015-Ohio-4457, ¶ 15. See also State v. Morton, 2d Dist. Montgomery No. 20358, 2005-Ohio-308, ¶ 8 (“the successive prosecution branch of the Double Jeopardy Clause ‘prohibits the state from trying a defendant for a greater offense after a conviction of a lesser included offense’ and from twice trying a defendant for the same offense“), quoting State v. Bickerstaff, 10 Ohio St.3d 62, 64, 461 N.E.2d 892 (1984); State v. Sturgell, 2d Dist. Darke No. 1751, 2009-Ohio-5628, ¶ 10 (a “[c]onviction on a lesser included offense generally bars subsequent prosecution for a greater offense“), quoting Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
{¶ 15} “An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, * * * be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.” (Citation omitted.) State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the syllabus, as modified by State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 25 (deleting the word “ever” in the second part of the test announced in Deem). Accord State v. Frazier, 2d Dist. Montgomery Nos. 26495, 26496, 2016-Ohio-727, ¶ 57.
{¶ 16} In applying the foregoing test in Deem, Pope contends that his misdemeanor OVI in violation of
{¶ 17} To violate
{¶ 18} In contrast, to commit an OVI offense in violation of
{¶ 19} Because the plain language of
{¶ 20} Pope nevertheless claims that since he drove his vehicle, only the “transport” element in
{¶ 21} Pope does not, however, cite any authority supporting his proposition that the “transport” element in
{¶ 22} We also disagree with Pope‘s claim that the terms “transport” and “operate” are interchangeable. “Where the legislature uses different terms between statutes, it should be presumed that the legislature intended different meanings.” State v. Pittman, 2014-Ohio-5001, 21 N.E.3d 1118, ¶ 21 (3d Dist.), citing State ex rel. Fink v. Registrar, Ohio Bur. of Motor Vehicles, 12th Dist. Butler No. CA98-02-021, 1998 WL 634707, *2 at fn. 2 (Sept. 14, 1998), citing Metro. Securities Co. v. Warren State Bank, 117 Ohio St. 69, 76, 158 N.E. 81 (1927). See also State v. Herbert, 49 Ohio St.2d 88, 113, 358 N.E.2d 1090 (1976) (“the use of different language [in statutes] gives rise to a presumption that different meanings were intended“); Farmer v. Berry, 2012-Ohio-4940, 981 N.E.2d 929, ¶ 15 (8th Dist.) (“we will ‘presume[ ] that different results were intended’ when the General Assembly ‘used certain language in the one instance and wholly different language in the other’ “), quoting Metro Securities Co. at 76.
{¶ 23} Although not defined by statute, the term “transport” is generally defined as “to carry or convey (a thing) from one place to another.” Black‘s Law Dictionary
{¶ 24} In support of his interchangeability argument, Pope cites to Columbus v. Freeman, 181 Ohio App.3d 320, 2009-Ohio-1046, 908 N.E.2d 1026 (10th Dist.) for the proposition that a passenger can be convicted for OVI, thus implying that one can be convicted of the offense without necessarily causing movement of a vehicle. The passenger in Freeman, however, was convicted of operating a vehicle under suspension and reckless operation because he grabbed the steering wheel during a fight with the driver and caused the vehicle to crash into a ditch. Id. at ¶ 1-2. The court in Freeman analyzed the definition of “operate” in
{¶ 25} In this court‘s view, Pope violated
{¶ 26} Therefore, under the test announced in Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, Pope‘s conviction for OVI is not a lesser included offense. As a result, the double jeopardy protection against successive prosecutions did not prohibit the State from prosecuting Pope for the improperly handling a firearm offense after he was convicted of the OVI offense.
{¶ 27} For the foregoing reasons, Pope‘s lesser-included-offense claim is overruled.
Allied Offenses
{¶ 28} Pope also contends that pursuant to Ohio‘s allied offense statute,
{¶ 30} However, even if we did apply
(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.
(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.
{¶ 31} “[W]hen determining whether offenses are allied offenses of similar import within the meaning of
{¶ 32} As to the question of import and significance, “two or more offenses of dissimilar import exist within the
{¶ 33} In Earley, the Supreme Court of Ohio concluded that felony aggravated vehicular assault under
[A]ggravated vehicular assault necessarily involves causing serious physical harm to another person. A first-degree-misdemeanor violation of
R.C. 4511.19(A)(1)(a) , on the other hand, occurs any time an individual drives under the influence of alcohol or drugs, and one who does so commits this offense regardless of any subsequent consequences that occur due to the impaired driver‘s actions. There is a legitimate justification for criminalizing each of these offenses separately, andR.C. 2941.25 permits separate convictions for both pursuant to the test set forth in Ruff.
Id. at ¶ 15.
{¶ 34} In this case, the resulting harm from Pope‘s OVI conviction is the risk of danger he posed to himself, others, or property through operating his vehicle while intoxicated. In other words, the harm flows from him operating the vehicle in an intoxicated state. On the other hand, the offense of improperly handling a firearm in a motor vehicle while intoxicated involves the separate danger of Pope causing harm to himself, others, or property with a firearm while inside a motor vehicle. For that offense, the resulting harm flows from Pope possessing/transporting a firearm in an intoxicated state, not simply from operating a vehicle. As previously noted, it is immaterial whether Pope operated the vehicle for purposes of the improperly handling a firearm offense, as the resulting harm is the increased risk that Pope would use the firearm inside his car while intoxicated.
{¶ 35} While public safety is admittedly a concern for both offenses, the firearm component of the improper handling statute renders the harm associated with it unique from the harm associated with a conviction for OVI. Therefore, the resulting harm is separate and identifiable for each offense and warrants separate criminalization. In light of this, we conclude that the offenses at issue were dissimilar in significance and import under the test in Ruff and are not allied offenses of similar import.
{¶ 36} For the foregoing reasons, Pope‘s allied-offense claim is overruled.
{¶ 37} Because all of Pope‘s claims lack merit, his single assignment of error is overruled.
Conclusion
{¶ 38} Having overruled Pope‘s sole assignment of error, the judgment of the trial court is affirmed.
HALL, P.J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
Larry J. Denny
Michael Mills
Hon. Mary Katherine Huffman