State v. Thompson , 2013 Ohio 2647 ( 2013 )

[Cite as State v. Thompson, 2013-Ohio-2647.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130053
TRIAL NO. B-1204220
Plaintiff-Appellee, :
vs. : O P I N I O N.
MATT THOMPSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 26, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Matt Thompson pleaded no contest to burglary
and was sentenced to two years in prison after the trial court overruled his motion to
dismiss the indictment against him on double-jeopardy grounds. Thompson appeals
the trial court’s decision denying his motion to dismiss, and because we reiterate that
successive-prosecution cases are controlled by Blockburger, and not by R.C. 2941.25,
we affirm.
{¶2} On January 25, 2012, the state of Ohio filed a criminal complaint
against Thompson, charging him with receiving stolen property under R.C. 2913.51,
specifically a Vizio television belonging to the victim, C.W., which had been stolen
from C.W.’s home that same day. On June 21, 2012, Thompson and a codefendant
were indicted for burglary under R.C. 2911.12(A)(2), a second-degree felony, in the
Hamilton County Court of Common Pleas for entering by force into C.W.’s home and
stealing two televisions and a cellular phone, according to the bill of particulars.
Thompson pleaded no contest to misdemeanor receiving stolen property in the
Hamilton County Municipal Court in October 2012, and was sentenced to 30 days in
jail.
{¶3} Within days of his no-contest plea in municipal court, Thompson filed
a motion to dismiss the indictment against him for burglary on double-jeopardy
grounds. Thompson specifically argued that because the receiving-stolen-property
and burglary offenses were allied offenses of similar import subject to merger,
Thompson’s prosecution for burglary violated his double-jeopardy rights. The trial
court overruled Thompson’s motion, determining that Thompson’s conduct in
retaining stolen property was separate from the conduct required to prove burglary.
2
OHIO FIRST DISTRICT COURT OF APPEALS
Thompson subsequently pleaded no contest to the burglary charge and was
sentenced to two years in the department of corrections. This appeal ensued.
{¶4} In a sole assignment of error, Thompson contends that the trial court
erred by denying his motion to dismiss. Thompson argues that his burglary
prosecution violated his double-jeopardy rights because he had already been
convicted of receiving stolen property under R.C. 2913.51 in municipal court, and
that the burglary and receiving-stolen-property offenses were allied offenses of
similar import that must be merged under R.C. 2941.25. We review a trial court’s
decision on a motion to dismiss an indictment de novo. State v. Battease, 1st Dist.
Nos. C-050837 and C-050838, 2006-Ohio-6617, ¶ 14.
{¶5} This court has held that successive-prosecution cases, such as this, are
controlled by Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.
306 (1932), and not by R.C. 2941.25. See Univ. of Cincinnati v. Tuttle, 1st Dist. No.
C-080357, 2009-Ohio-4493, ¶ 12, citing State v. Zima, 102 Ohio St.3d 61, 2004-
Ohio-1807, 806 N.E.2d 542. 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.” (Internal quotations and citations omitted). State v. Tolbert, 60 Ohio St.3d 89,
573 N.E.2d 617 (1991), paragraph one of the syllabus.
{¶6} In Tuttle, the University of Cincinnati (“UC”) had obtained a
permanent injunction against the defendant, prohibiting the defendant from being
on UC’s property. The defendant was later found on UC’s property on two occasions,
and, as a result, was convicted in the Hamilton County Municipal Court of
trespassing. The defendant was subsequently prosecuted in the common pleas court
3
OHIO FIRST DISTRICT COURT OF APPEALS
for indirect criminal contempt for violating the permanent injunction. The
defendant filed a motion to dismiss the contempt charges on the basis that the
contempt prosecution violated his double-jeopardy rights because the contempt
charges were premised on the same conduct as the trespassing convictions. Tuttle at
¶ 12. This court affirmed the trial court’s decision overruling the defendant’s motion
by applying the “same elements” test from Blockburger and explicitly rejecting an
application of R.C. 2941.25. Id. at ¶ 12-13.
{¶7} We conclude that our decision in Tuttle remains unchanged by the
Supreme Court’s interpretation of R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061. See State v. Lamp, 9th Dist. No. 26602,
2013-Ohio-1219, ¶ 7 (recognizing that successive-prosecution cases under the Fifth
Amendment are controlled by Blockburger and not R.C. 2941.25 and Johnson).
{¶8} Applying the Blockburger test to the instant case, burglary requires
proof that a defendant trespassed, an element not required by the receiving-stolen-
property statute; therefore, Thompson’s double-jeopardy rights were not violated by
his prosecution for burglary. See R.C. 2911.12(A)(2) and 2913.51. The trial court did
not err in overruling Thompson’s motion to dismiss the indictment for burglary.
{¶9} We overrule Thompson’s assignment of error. The judgment of the
trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
4