STATE OF OHIO, PLAINTIFF-APPELLEE, v. THOMAS J. WOODRUFF, DEFENDANT-APPELLANT.
CASE NO. 8-14-21
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
April 6, 2015
[Cite as State v. Woodruff, 2015-Ohio-1342.]
Appeal from Logan County Common Pleas Court Trial Court No. CR-14-05-0103 Judgment Affirmed
Marc S. Triplett for Appellant
Sarah J. Warren for Appellee
{¶1} Defendant-Appellant, Thomas Woodruff, appeals the judgment of the Court of Common Pleas of Logan County overruling his motion to dismiss count two of the State‘s indictment. On appeal, Woodruff argues that the trial court erred in overruling his motion because his double jeopardy rights were violated and the offenses of vehicular assault and operating a vehicle under the influence are allied offenses of similar import. For the reasons that follow, we affirm the trial court‘s judgment.
{¶2} On December 18, 2013, Woodruff pled no contest, and was found guilty, of operating a vehicle while intoxicated, in violation of
{¶3} Woodruff filed a motion to dismiss count one of the indictment on August 22, 2014. In his motion, Woodruff argued that count one of the indictment was based upon the same incident and facts as the OVI charge he pled no contest
{¶4} The trial court denied Woodruff‘s second motion to dismiss on September 15, 2014. Specifically, the court found that the State‘s prosecution of the OVI charge did not prevent the State from prosecuting Woodruff for vehicular assault, even if they arose from the same set of facts.
{¶5} Woodruff timely appealed this judgment, presenting the following assignment of error for our review.
Assignment of Error
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION TO DISMISS COUNT TWO OF THE INDICTMENT.
{¶6} In his sole assignment of error, Woodruff argues that the trial court erred when it denied his second motion to dismiss because double jeopardy precludes the State from prosecuting him for vehicular assault. We disagree.
{¶7} This court will review a trial court‘s decision to grant or deny a motion to dismiss under a de novo standard of review. State v. Hicks, 3d Dist. Union Nos. 14-07-26, 14-07-31, 2008-Ohio-3600, ¶ 17, citing State v. Collins, 12th Dist. Clermont No. CA2007-01-010, 2007-Ohio-5392, ¶ 7, citing State v. Benton, 136 Ohio App.3d 801, 805 (6th Dist.2000). “The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution protect the accused from being put in jeopardy twice for the same offense. These provisions protect an individual against successive punishments as well as successive prosecutions for the same offense.” State v. Moore, 110 Ohio App.3d 649, 652 (1st Dist.1996).
{¶8} In determining whether an accused is being successively prosecuted for the “same offense,” the Ohio Supreme Court has adopted the so called “same elements” test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932). State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶ 18, citing State v. Best, 42 Ohio St.2d 530 (1975), paragraph three of the syllabus. Under Blockburger, “the Double Jeopardy Clause * * * prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute ‘requires proof of a fact which the other does not.’ ” State v. Tolbert, 60 Ohio St.3d 89, 90 (1991), quoting Blockburger at 304. “This test focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case.” State v. Thomas, 61 Ohio St.2d 254, 259 (1980), overruled on other grounds in State v. Crago, 53 Ohio St.3d 243 (1990).
{¶10} We find that the facts of this case are almost identical to the facts in Zima. In that case, the appellant operated her vehicle left of center and collided with an oncoming motorcyclist. Zima at ¶ 1. She was charged with driving under the influence in violation of Cleveland Codified Ordinance 433.02(a)(1), entered into a plea agreement with the City of Cleveland, and was found guilty of driving under the influence. Id. at ¶ 1-2. Zima was then indicted by the Cuyahoga County
{¶11} Here, Woodruff was convicted of violating
{¶12} The Ohio Supreme Court noted that ” ‘[r]ecklessness can occur without alcohol or drug involvement, and operating a motor vehicle while [under the influence] can occur without resulting physical injury.’ ” Id. at ¶ 33, quoting State v. Hyman, 10th Dist. Franklin No. 93AP-530, 1993 WL 387267, *2 (Sept. 28, 1993). Therefore, it held that “the principles of double jeopardy do not apply to bar successive prosecutions for the offense of driving under the influence in
{¶13} To avoid this result, Woodruff argues that the State will “submit the evidence at trial that he was driving impaired to prove he was operating the vehicle in a reckless manner.” (Appellant‘s Br., p. 7). However, the appellant in Zima made the same argument, which the Court found to be meritless. Specifically, the Court stated:
We find Zima‘s assertions to be unsupported. Blockburger requires a comparison of elements, not evidence.
R.C. 2903.08(A)(2) does not make driving under the influence and failure to yield necessary elements of recklessly causing serious physical harm. Indeed, the statute lists driving under the influence and recklessness as distinct predicate offenses. In reality, Zima is proposing that even though her subsequent prosecution for aggravated vehicular assault underR.C. 2903.08(A)(2) would pass the Blockburger test, that prosecution is nevertheless barred because the state will prove conduct that constitutes an offense for which she has already been prosecuted. This, however, is in substance a feature of the now-defunct “same conduct” test, which was adopted by the high court in Grady v. Corbin (1990), 495 U.S. 508, 510, 110 S.Ct. 2084, 109 L.Ed.2d 548, but then overruled in Dixon, supra, 509 U.S. at 711–712, 113 S.Ct. 2849, 125 L.Ed.2d 556.In any event, there is nothing in the record to indicate that the state will have to rely on the components of the lesser offenses that were charged in the municipal proceedings in order to prove recklessness. Even under an evidentiary or conduct-related analysis, the mere possibility that the state may seek to rely on the ingredients of these lesser offenses to prove recklessness under
R.C. 2903.08(A)(2) is not sufficient to bar the latter prosecution. See Illinois v. Vitale (1980), 447 U.S. 410, 419–420, 100 S.Ct. 2260, 65 L.Ed.2d 228. See, also, Dixon, 509 U.S. at 707, 113 S.Ct. 2849, 125 L.Ed.2d 556 (limiting Vitale).
(Footnote omitted.) Id. at ¶ 35-36.
{¶14} The State maintains, as the prosecution similarly did in Zima, that it will be able to prove recklessness by evidence other than the fact that Woodruff was driving impaired. Specifically, the State alleges that Woodruff was operating his motor vehicle in a way where he could not see over his dashboard and also asserts that he drove his vehicle knowing his brakes were not working properly.
{¶15} While Woodruff cites to Zima in his briefs, he does not explain how Zima is distinguishable or why it should not be followed in this case. We find that Zima controls the disposition of this matter and that Woodruff‘s arguments are meritless.
{¶16} Accordingly, we overrule Woodruff‘s sole assignment of error.
{¶17} Having found no error prejudicial to Woodruff in the particulars assigned and argued, we affirm the trial court‘s judgment.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr