IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 11 CR 489

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO STATE OF OHIO, : Plaintiff, : Case No. 11 CR 489 v. : Judge Berens CLARENCE MULLINS, : ENTRY Overruling Defendant s Motion to Dismiss Defendant. : This matter is before the Court upon Defendant s Motion to Dismiss for Double Jeopardy, filed November 4, The Court held an evidentiary hearing in this matter on December 5, The parties thereafter filed post-hearing briefs, which the Court has considered. For the reasons that follow, Defendant s motion is OVERRULED. STATEMENT OF THE CASE On October 28, 2011, Defendant was indicted by the Fairfield County Grand Jury for one count of Breaking and Entering, in violation of R.C (A), a felony of the fifth degree. The indictment alleges that Defendant trespassed in a storage unit of a Sam s Club in Reynoldsburg, Fairfield County, Ohio on July 25, In addition, on October 11, 2011 Defendant entered a guilty plea to a misdemeanor complaint in the Franklin County Municipal Court to an amended charge of Attempted Receiving Stolen Property. That misdemeanor complaint stated that on July 25th, 2011, Defendant sold used car batteries in Columbus, Franklin County, Ohio that were stolen from Sam s Club. Defendant moved to dismiss the indictment, asserting that it violated his rights under the Fifth Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution, both of which guarantee that no person will be put in jeopardy twice for the same 1

2 offense. Defendant argues that the indictment violates his right to be free of double jeopardy because it is a successive attempt to prosecute him for a single course of conduct. LAW AND ANALYSIS Defendant is protected from double jeopardy under the Ohio Constitution and the United States Constitution. The Fifth Amendment to the United States Constitution states, [n]o person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb. Section 10, Article I of the Ohio Constitution states, [n]o person shall be twice put in jeopardy for the same offense. Therefore, the question put before the Court by Defendant s motion is whether the indictment in this case sets forth the same offense as the misdemeanor complaint to which Defendant entered a plea of guilty prior to indictment. The Court finds that the decisions of the Ohio Supreme Court are instructive on this question, particularly State v. Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975) and State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542. In both of those cases, the Supreme Court was faced with a situation in which a person faced charges on behalf of a city and on behalf of the State of Ohio arising from the same course of conduct. In Zima, the defendant moved to dismiss a felony indictment for aggravated vehicular assault where she had previously entered a plea of no-contest and been convicted of a misdemeanor offense for driving under the influence arising out of the same events. Zima at 1 3. The Supreme Court explained that double jeopardy protections apply in such a case because the misdemeanor and felony charges were brought by the same sovereign (the State of Ohio and a political subdivision thereof). The Supreme Court further explained that the appropriate standard for determining whether a successive prosecution for the same course of conduct is the same elements test set forth in Blockaburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 (1932). Zima at 19. 2

3 As set forth in Best and Zima: [W]here the same 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. Zima at 19, quoting Best, 42 Ohio St.2d 530, paragraph three of the syllabus. The Supreme Court has stated that the same elements test focuses upon the elements of the two statutory provision, not upon the evidence proffered in a given case. Zima at 20, quoting State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353, syllabus. Therefore, in determining whether Defendant has been placed in jeopardy a second time for the same offense, the Court must compare the two statutory provisions at issue in the two cases. In the Franklin County Municipal Court case, Defendant entered a plea of guilty to Attempted Receiving Stolen Property. The offense of Receiving Stolen Property is set forth in R.C The elements of that offense are (1) receiving, retaining, or disposing of (2) property of another (3) with knowledge or reasonable cause to believe (4) the property was obtained by a theft offense. In the indictment presented to this Court, Defendant is charged with Breaking and Entering, which is set forth in R.C (A). The elements of that offense are (1) trespass in an unoccupied structure (2) by force, stealth, or deception (3) with purpose to commit a theft offense or a felony therein. Comparing the two provisions, the Court finds that each requires proof of an element the 3

4 other does not. The offense of Receiving Stolen Property requires proof that property received, retained, or disposed of by the defendant belonged to another and the offense of Breaking and Entering does not. The offense of Breaking and Entering requires proof that the defendant trespassed in an unoccupied structure and the offense of Receiving Stolen Property does not. Therefore, under the test set forth by the United States Supreme Court in Blockaburger and adopted by the Ohio Supreme Court in Bestand Zima, Receiving Stolen Property and Breaking and Entering are not the same offense for purposes of double jeopardy analysis. Defendant has argued that the Court should follow the analysis from Rashad v. Burt, 108 F.3d 677 (6th Cir. 1997). Rashad was a habeas corpus petition in which the court was faced with a situation where the petitioner was tried and convicted for possession with intent to distribute cocaine seized from his basement and was subsequently tried and convicted for possession with intent to distribute cocaine seized from his vehicle during the search of his basement. The Sixth Circuit held that the Blockaburger same elements test was not controlling over a case in which the second prosecution was based on the same fact situation as the first. The Rashad court held that successive prosecutions based on the same fact situation are barred by double jeopardy if the separate charges could have been joined and no significant additional fact was required in the second prosecution. Rashad at 680. The court did not consider the different locations of the cocaine significant because the two collections of drugs were not separated by time, location, or intended purpose so as to suggest the commission of two separate offenses. Id. Even were the Court to adopt the statement of law set forth in Rashad, the Court finds that the indictment in this case would not be an impermissible successive prosecution. Although the separate charges could have been joined and tried in this Court under R.C (H)(3) because the State alleges that Defendant trespassed in the unoccupied structure at Sam s Club in 4

5 Fairfield County with the intent to steal used car batteries (Breaking and Entering) and then sold those stolen car batteries in Franklin County (Receiving Stolen Property), the Court finds there are significant additional facts required in the second prosecution. Specifically, Defendant was charged in the misdemeanor case with receiving, retaining, or disposing of stolen property with knowledge or reasonable cause to believe the property was stolen, but under the indictment, the State must prove much more. Instead of simply proving that Defendant possessed stolen property, the charge in the indictment requires that Defendant travelled to Sam s Club and entered upon its property by force, stealth, or deception and had the intent to commit a theft offense or felony offense when he did so. That is far different from the situation in Rashad, where the prosecution brought a second case against the petitioner by simply dividing up the cocaine recovered in the search of his home based on whether it was hidden in the basement or in the vehicle. Therefore, the Court OVERRULES Defendant s motion to dismiss the indictment. IT IS SO ORDERED. Judge Richard E. Berens Copies to: Fairfield County Prosecuting Attorney Attn: Darcy Cook, Courthouse mailbox Defense Counsel Thomas Elwing, Courthouse mailbox Filed January 25,