State v. Lamp , 2013 Ohio 1219 ( 2013 )

[Cite as State v. Lamp, 2013-Ohio-1219.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26602
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARK EMERY LAMP COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CR 12 06 1587
DECISION AND JOURNAL ENTRY
Dated: March 29, 2013
CARR, Judge.
{¶1} Appellant, the State of Ohio, appeals the judgment of the Summit County Court
of Common Pleas. This Court reverses.
I.
{¶2} Mark Lamp was arrested on May 18, 2012, and charged with a misdemeanor theft
offense. Subsequently, the Summit County Grand Jury returned an indictment charging Lamp
with one count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth
degree. On July 20, 2012, after pleading guilty to theft in municipal court, Lamp filed a motion
to dismiss the felony indictment on double jeopardy grounds. After a hearing, the trial court
issued a journal entry granting Lamp’s motion.
{¶3} On appeal, the State of Ohio raises one assignment of error.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING THE
INDICTMENT.
{¶4} In its assignment of error, the State argues that the trial court erred in granting
Lamp’s motion to dismiss the indictment. This Court agrees.
{¶5} The Fifth Amendment to the United States Constitution provides that “[n]o person
shall * * * be subject for the same offense to be twice put in jeopardy of life and limb.”
Similarly, Section 10, Article I, Ohio Constitution provides, “No person shall be twice put in
jeopardy for the same offense.”
{¶6} Lamp argued in his motion that the indictment should be dismissed because the
State’s decision to charge him with breaking and entering violated the constitutional prohibition
against double jeopardy. In support of his motion to dismiss, however, Lamp relied on both
double jeopardy case law as well as case law dealing with whether two crimes constituted allied
offenses of similar import. A critical segment of Lamp’s analysis hinged on the Ohio Supreme
Court’s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, in which the
high court clarified the application of Ohio’s allied offenses statute, R.C. 2941.25, and overruled
State v. Rance, 85 Ohio St.3d 632 (1999), “to the extent that it calls for a comparison of statutory
elements solely in the abstract under R.C. 2941.25.”
{¶7} While Lamp relied on Johnson in support of his motion, we note that the standard
for determining whether a successive prosecution violates the double jeopardy clause is separate
and distinct from the allied offenses standard set forth in R.C. 2941.25. In State v. Zima, 102
Ohio St.3d 61, 2004-Ohio-1807, ¶ 18, the Supreme Court held that determining whether an
accused is being successively prosecuted for the “same offense” requires courts to apply the
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“same elements” test articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932),
which states, “The applicable rule under the Fifth Amendment is that, where the same act or
transaction constitutes a violation of two distinct statutory provisions, 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 acquittal or
conviction under either statute does not exempt the defendant from prosecution and punishment
under the other.” (Internal citations and quotations omitted.)
{¶8} In Zima, the Supreme Court confronted a set a circumstances where a defendant
was charged with driving under the influence in violation of a Cleveland City Ordinance. The
Cuyahoga County Grand jury subsequently indicted the defendant on charges of aggravated
vehicular assault on the basis that she was driving under the influence, aggravated vehicular
assault on the basis that she was driving recklessly, and driving under the influence. Like this
case, the defendant in Zima entered into a plea agreement in municipal court on the misdemeanor
charge and then subsequently moved to dismiss the felony charges pending in common pleas
court on double jeopardy grounds. There, the Supreme Court emphasized that the test for
successive prosecutions outlined in Blockburger is separate from the allied offenses standard set
forth in R.C. 2941.25, stating that when a case “involves only the issues of successive
prosecutions, it is not controlled by R.C. 2941.25 or Rance.” Zima at ¶ 40, fn 3.
{¶9} At the hearing on Lamp’s motion, defense counsel did not focus on the double
jeopardy standard set forth in Blockburger. Instead, defense counsel emphasized that the
Supreme Court’s decision in Johnson had “redefined [Ohio’s] understanding of allied offenses,”
and that under that standard, the indictment should be dismissed because theft and breaking and
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entering were allied offenses of similar import. Defense counsel further noted that the authority
the State relied upon in opposition to the motion was of limited precedential value as those cases
were decided prior to the Johnson decision. The trial court then stated that it had “read and
studied” Johnson, and that the “key issue” is “whether it is possible for the same act to constitute
a violation of two statutes.” After further discussion of the Johnson standard and the facts of this
case, the trial court concluded that theft and breaking and entering were allied offenses, and that
Lamp’s motion to dismiss on double jeopardy grounds should be granted.
{¶10} The trial court erred by applying the test set forth in Johnson to determine
whether the State’s decision to charge Lamp with breaking and entering violated the
constitutional prohibition against double jeopardy. The Ohio Supreme Court’s decision in
Johnson, as well as its prior decision in Rance, dealt with determining whether two crimes were
allied offenses of similar import pursuant to R.C. 2941.25. As this case involved the question of
whether Lamp was being successively prosecuted for the same offense, the trial court should
have utilized the “same elements” test articulated in Blockburger. It follows that this case must
be remanded for the trial court to make the initial determination regarding whether, under the
standard set forth in Blockburger, the principles of double jeopardy bar successive prosecution in
this case.
{¶11} The State’s assignment of error is sustained.
III.
{¶12} The State’s assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is reversed and the cause remanded for further proceedings consistent
with this decision.
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Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.
JEFFREY N. JAMES, Attorney at Law, for Appellee.