State v. Bridges

[Cite as State v. Bridges, 2015-Ohio-4480.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 14AP-602

v. : (C.P.C. No. 12CR-12-6437)

Tony Bridges, Jr., : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on October 29, 2015

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for

appellee.

Yeura Venters, Public Defender, and Timothy E. Pierce, for

appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Tony Bridges, Jr. ("appellant"), appeals from a

judgment of the Franklin County Court of Common Pleas sentencing him to five years of

community control pursuant to his plea of no contest to two counts of endangering children

and one count of felonious assault. Because we conclude that the trial court did not err by

denying appellant's motion to dismiss, we affirm.

{¶ 2} On December 10, 2012, appellant was charged in the Franklin County

Municipal Court with one count of domestic violence, a first-degree misdemeanor in

violation of R.C. 2919.25(A), and one count of assault, a first-degree misdemeanor in

violation of R.C. 2903.13(A). The complaints alleged that, earlier the same day, appellant

struck the victim, his seven-year-old son, multiple times in the neck, chest, back, and arms

with a belt, resulting in dark bruises, welts, and broken skin. On December 19, 2012,

No. 14AP-602 2

appellant, represented by counsel, pled guilty to the charge of domestic violence, and the

municipal court dismissed the assault charge.

{¶ 3} The following day, on December 20, 2012, the Franklin County Grand Jury

issued an indictment charging appellant with two counts of endangering children, both

second-degree felonies in violation of R.C. 2919.22, and one count of felonious assault, a

second-degree felony in violation of R.C. 2903.11 ("the felony indictment"). Each of the

charges in the felony indictment related to the harm appellant inflicted on his son during

the December 10, 2012, incident. Appellant moved to dismiss the felony indictment,

asserting that he could not be prosecuted for additional charges arising from the events of

December 10, 2012, because the state had not expressly reserved the right to bring further

charges as part of the plea agreement under which he pled guilty to domestic violence in

the municipal court. The state opposed the motion to dismiss, arguing that appellant failed

to establish that his guilty plea in the municipal court proceeding was pursuant to a

negotiated plea agreement and that, even if it was, the county prosecutor was not a party to

any plea agreement. Following a hearing on the motion to dismiss and supplemental

briefing from the parties, the trial court denied appellant's motion, concluding that there

was no negotiated plea agreement that would preclude future felony charges because the

municipal court prosecutor lacked authority to enter into such an agreement.

{¶ 4} Appellant then entered a plea of no contest to the three charges in the felony

indictment. At the plea hearing, appellant asserted that he was entering the no-contest plea

for purposes of appealing the trial court's decision denying his motion to dismiss. The trial

court sentenced appellant to a five-year term of community control.

{¶ 5} Appellant appeals from the trial court's decision, assigning two errors for this

court's review:

Appellant's First Assignment of Error: The trial court

erred in overruling Defendant-Appellant's motion to dismiss

which violated his right to due process of law as memorialized

in the Fifth and Fourteenth Amendments of the United States

Constitution and Article I, Sections 1 and 16 of the Ohio

Constitution.

Appellant's Second Assignment of Error: The trial court

committed plain error in violation of R.C. 2941.25 ("Multiple

counts") and the Double Jeopardy Clauses of the Fifth and

Fourteenth Amendments of the United States Constitution and

No. 14AP-602 3

Article I, Section 10 of the Ohio Constitution by failing to

dismiss the subsequently-issued felony indictment against the

Defendant-Appellant involving two counts of child

endangering and one count of felonious assault after the State

had previously elected to prosecute him for the allied offense of

domestic violence in the Franklin County Municipal Court and

secured his conviction and punishment there.

{¶ 6} In his first assignment of error, appellant asserts that the trial court erred by

denying his motion to dismiss the felony indictment. Appellant argues that he entered into

a negotiated guilty plea in municipal court, which barred further prosecution for any

charges related to the same event. The trial court concluded that the municipal court

prosecutor lacked authority to enter a negotiated plea agreement providing that the

Franklin County prosecutor's office would not pursue charges against appellant and denied

the motion to dismiss.

{¶ 7} We review de novo a trial court's ruling on a motion to dismiss criminal

charges. State v. Romage, 10th Dist. No. 11AP-822, 2012-Ohio-3381, ¶ 6, citing State v.

Walker, 10th Dist. No. 06AP-810, 2007-Ohio-4666, ¶ 9-10. See also State v. Wilson, 10th

Dist. No. 13AP-205, 2013-Ohio-4799, ¶ 4 ("We review a trial court's legal conclusions in

ruling on a pretrial motion to dismiss criminal charges de novo."). Under the de novo

standard, we afford no deference to the trial court's decision and conduct an independent

review of the record. Romage at ¶ 6.

{¶ 8} The Supreme Court of Ohio has recognized that "[p]lea agreements are an

essential and necessary part of the administration of justice." State v. Carpenter, 68 Ohio

St.3d 59, 61 (1993). A plea bargain is, in effect, a contract, and principles of contract law

apply to the interpretation and enforcement of plea agreements. State v. Dye, 127 Ohio

St.3d 357, 2010-Ohio-5728, ¶ 21; State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 50.

However, "[b]ecause the defendant's constitutional rights are at stake in the plea process,

the concerns underlying a plea agreement differ from and go beyond those of commercial

contract law." Dye at ¶ 21, citing Carpenter at 61.

{¶ 9} In Carpenter, the Supreme Court held that the state could not indict a

defendant for murder after the trial court accepted a negotiated guilty plea to a lesser

offense when the victim later died of injuries sustained in the crime, unless the state had

expressly reserved the right to file additional charges on the record at the time of the guilty

No. 14AP-602 4

plea. Carpenter at syllabus. Subsequently, in Dye, the Supreme Court reiterated that, where

a defendant had entered into a negotiated guilty plea to the charge of aggravated vehicular

assault, the state could not later prosecute him for aggravated vehicular homicide following

the victim's death because the state had not expressly reserved the right to bring a homicide

charge if the victim died. Id. at ¶ 28. Appellant argues that, under the principles articulated

in Carpenter and subsequent decisions, his negotiated guilty plea in municipal court barred

the subsequent indictment from the Franklin County Grand Jury on felony charges arising

from the same incident.

{¶ 10} The state asserts, in part, that appellant has failed to demonstrate that his

guilty plea in the municipal court proceeding was a negotiated guilty plea within the

meaning of Carpenter. In order to establish the existence of a negotiated guilty plea, the

record must demonstrate the existence of the elements of a contract. Dye at ¶ 23. The state

argues that the only material submitted to the trial court regarding the municipal court

proceeding was a transcript, which failed to clearly indicate dismissal of any charges. The

state notes that this court granted appellant's motion to supplement the record but argues

that this court should not consider the copies of the complaints and sentencing entry

provided under that motion because they were not part of the trial court's record. The state

also argues that, even if there was a negotiated guilty plea, the trial court correctly

concluded that the municipal court prosecutor lacked authority to enter into a plea

agreement that would be binding on the Franklin County prosecutor.

{¶ 11} Assuming, without deciding, that appellant's plea in the municipal court was

a negotiated guilty plea, we conclude that, under the facts of this case, it did not bar the

subsequent felony indictment. The basis of the rule developed in Carpenter and subsequent

cases is that "effect must be given to the intention of the state and the defendant in their

plea bargain, and courts should enforce what they perceive to be the terms of the original

agreement." Dye at ¶ 22. Thus, a negotiated guilty plea " 'bars successive prosecutions

where the defendant would reasonably believe that his or her plea would bar further

prosecutions for any greater offense related to the same factual scenario.' " (Emphasis

added.) State v. Church, 10th Dist. No. 12AP-34, 2012-Ohio-5663, ¶ 8, quoting State v.

Edwards, 8th Dist. No. 94568, 2011-Ohio-95, ¶ 23, citing Dye. In this case, given the

circumstances surrounding appellant's guilty plea in the municipal court proceeding,

No. 14AP-602 5

appellant has failed to demonstrate that it was reasonable for him to believe that his plea

would bar subsequent prosecution for greater offenses related to his actions.

{¶ 12} In Carpenter, the defendant, Carpenter, committed a stabbing and was

indicted on one count of felonious assault. Following negotiations with the prosecution, in

January 1985, Carpenter entered a guilty plea to the lesser-included offense of attempted

felonious assault. At the time of the guilty plea, the prosecution was aware that the victim

was in a coma and would likely die, but the plea agreement did not refer to the possibility

of additional prosecution if the victim died. In March 1986, the victim died. Sometime after

September 1987, Carpenter was released from prison after serving a portion of his sentence

on the attempted felonious assault charge. In January 1988, Carpenter was charged with

the murder of the stabbing victim. He filed a motion to dismiss the indictment, arguing that

further prosecution was prohibited under the terms of his 1985 plea agreement. The trial

court granted that motion, and the court of appeals reversed. Carpenter at 60.

{¶ 13} On appeal, the Supreme Court of Ohio affirmed the dismissal of the

indictment, holding that, if the state wished to reserve the right to bring further charges

against Carpenter in the event of the victim's death, it was required to make that reservation

a part of the record. Id. at 62. The court concluded that Carpenter had a "reasonable and

justified" expectation that, by pleading guilty, he was "terminating the incident and could

not be called on to account further on any charges regarding [the] incident" and that the

prosecutor was aware of this expectation. Id. See also Dye at ¶ 26 (holding that the

defendant had a reasonable expectation that guilty plea would preclude further prosecution

because both the defendant and the prosecution were aware of the severity of the victim's

injuries and the potential that the victim would die as a result of those injuries, but the state

failed to reserve the right to bring further charges if the victim died); State v. Harrison, 122

Ohio St.3d 512, 2009-Ohio-3547, ¶ 52-60 (holding that the defendant had a reasonable

expectation that guilty plea would preclude further prosecution because the defendant

signed a negotiated plea agreement on the same day the bill of information was filed,

agreeing to plead guilty to all counts set forth in bill of information, and because both the

prosecutor and the court that accepted the guilty plea had jurisdiction over all of the actual

and potential charges).

No. 14AP-602 6

{¶ 14} By contrast, in State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, the

Supreme Court of Ohio held that the defendant, Zima, failed to show why her belief that a

guilty plea would prevent further prosecution was reasonable. Id. at ¶ 14. On July 3, 2001,

Zima struck an oncoming motorcycle with her car. On July 6, 2001, she was charged in the

Cleveland Municipal Court with driving under the influence, driving under suspension,

failure to yield, and failure to wear a seatbelt. Id. at ¶ 1. Later, on August 23, 2001, a

Cuyahoga County Grand Jury indicted Zima on charges of aggravated vehicular assault

based on driving under the influence, aggravated vehicular assault based on driving

recklessly, and driving under the influence. Id. On August 27, 2001, Zima entered a no-

contest plea in municipal court to the charge of driving under the influence, and the

prosecution dismissed the three remaining municipal court charges. At the time of her no-

contest plea, Zima was not aware of the indictment from the Cuyahoga County Grand Jury.

Id. at ¶ 2. After sentencing on the municipal court charges, Zima moved to dismiss the

indictment from the Cuyahoga County Grand Jury. The trial court granted Zima's motion

to dismiss. Id. at ¶ 3.

{¶ 15} The Supreme Court of Ohio distinguished Zima's case from Carpenter,

noting that, when Zima pled guilty in the municipal court, she had already been indicted on

felony charges by the Cuyahoga County Grand Jury. Id. at ¶ 14. Importantly, the court

noted that "[n]either the municipal court nor the city prosecutor had the authority to

dismiss those pending felony charges." Id. While acknowledging that Zima was apparently

not aware of the felony indictments when she pled guilty, the court stated that a " 'defendant

should be aware that a plea taken before a municipal judge with limited criminal

jurisdiction might not dispose of the matter fully.' " (Internal citation omitted.) Id. The

Zima decision reasoned that, in Carpenter, the defendant's expectation that the guilty plea

would terminate further prosecution was "inherently justified because the prosecutor and

the court had jurisdiction over all the charges, both actual and potential, and because the

negotiated guilty plea included the dismissal of all pending charges." Zima at ¶ 12. "In the

absence of these or equivalent circumstances, however, it would be exceedingly difficult to

sustain a defendant's belief that no further charges will be brought or prosecuted." Id. See

also Cleveland v. Evans, 8th Dist. No. 100721, 2014-Ohio-4567, ¶ 35 (holding that the

defendant's belief that his guilty plea would dispose of all charges was not reasonable when

No. 14AP-602 7

the defendant pled no contest to driving under a suspended license, but plea did not address

operating a vehicle while intoxicated charges, and when, at the time of the plea, a common

pleas case number had been assigned for operating a vehicle while intoxicated charges and

grand jury proceedings were pending); State v. Sims, 9th Dist. No. 22677, 2006-Ohio-2415,

¶ 24 (holding that the defendant's belief that her guilty plea to three misdemeanor charges

would prevent further prosecution on felony charges was not reasonable in part because "a

municipal court does not have jurisdiction over felony offenses * * *, and a city prosecutor

does not have the authority to handle the final disposition of felony cases").

{¶ 16} In the present case, the transcript of the municipal court proceeding at which

appellant pled guilty indicates that appellant was aware of the potential for felony charges

due to the severity of the victim's injuries. In explaining the case to the court, the municipal

court prosecutor offered the following statement:

MR. BENNINGTON: Your Honor, this case is set for pretrial

today. This is also a case that is on track to be indicted as a

felony due to the severity of the harm that was inflicted here. I

do believe the defendant is pleading today to avoid that felony.

It actually should have been indicted last week and something

happened and it didn't get indicted. But I'm not prepared to

dismiss, to go forward with the indictment, so we are making

an offer of just maximum jail of 180 days in jail on this. I think

it's appropriate given the severity of the injuries.

(Dec. 19, 2012 Municipal Ct. Tr. 2-3.) After a brief discussion of appellant's jail-time credit

and ability to pay fines or costs, the municipal court imposed a sentence of 180 days'

imprisonment, with 10 days of jail-time credit, and stated that "[appellant] is to continue

to do the 170 until somehow or other the indictment of the felony comes about." (Municipal

Ct. Tr. 3.) At the prompting of the municipal court prosecutor, the court then verified that

appellant intended to plead guilty, to which appellant responded "Yes, Your Honor, I'm

pleading guilty to it." (Municipal Ct. Tr. 4.)

{¶ 17} Although the municipal court prosecutor stated that he believed appellant

was pleading guilty to avoid a felony charge, there was no indication that he made any

assurances to appellant that the guilty plea would preclude further prosecution. Moreover,

despite the prosecutor's unclear statement of "I'm not prepared to dismiss, to go forward

with the indictment," we note that, in imposing the sentence, the municipal court judge

indicated appellant was to serve his sentence until the indictment of the felony was issued.

No. 14AP-602 8

(Municipal Ct. Tr. 4.) If appellant, who was represented by counsel at the municipal court

hearing, believed that his guilty plea would prevent further prosecution, the comments

from both the prosecutor and the judge should have placed him on notice that his belief

might be mistaken. At the very least, appellant or his counsel should have sought

clarification of the effect of the guilty plea. It is noteworthy that appellant did not formally

enter his guilty plea until after these statements by the prosecutor and the judge.

{¶ 18} Appellant argues that his case is similar to this court's decision in Church,

which held that the defendant's guilty plea prohibited further prosecution. In Church, the

defendant, Church, was charged in municipal court on March 5, 2010, with one count of

possession of a controlled substance and one count of failure to use a crosswalk. Id. at ¶ 2.

On March 31, 2010, Church entered into a negotiated plea providing that he would plead

guilty to the crosswalk violation in exchange for dismissal of the drug possession charge.

Id. Subsequently, on May 12, 2010, Church was indicted in the Franklin County Court of

Common Pleas on one count of trafficking in marijuana. Id. at ¶ 3. The marijuana-

trafficking charge was based on the same incident that gave rise to the municipal court

proceeding. Id. at ¶ 15. He filed a motion to dismiss, arguing that the prosecution violated

the Double Jeopardy Clause. Id. at ¶ 3. The trial court denied the motion to dismiss, and

Church entered a no-contest plea. On appeal, this court held that, because the state did not

expressly reserve the right to bring future charges, Church's negotiated plea barred

prosecution on the subsequent indictment. The court concluded that Church "had a

reasonable expectation, based upon the negotiated plea agreement entered in the

municipal court, that he would not be subject to more serious drug charges arising out of

the incident." Id. at ¶ 17.

{¶ 19} We conclude that there are several important distinctions between Church

and the present case. In Church, nearly six weeks passed between the guilty plea and the

subsequent indictment; whereas, in this case, the felony indictment was issued on

December 20, 2012, only one day after appellant entered his guilty plea in the municipal

court proceeding. Moreover, the Church decision does not suggest that there was any

discussion of possible felony charges at the municipal court plea hearing. By contrast, in

this case, the statements by the municipal court prosecutor and judge indicated that felony

proceedings were under consideration and, in fact, that the case was "on track" to lead to a

No. 14AP-602 9

felony indictment. As explained above, these comments signaled that felony prosecution

was possible and undermine appellant's claim that he believed his plea would preclude

further prosecution. This case is more analogous to the Zima decision where the defendant

could not reasonably rely on an implied representation that no further charges would result.

See Zima at ¶ 14.

{¶ 20} Appellant has failed to articulate circumstances demonstrating why his

asserted belief that his guilty plea would prevent further prosecution was reasonable. Id.

Therefore, we conclude that the trial court did not err by denying appellant's motion to

dismiss, albeit for a different reason than the one articulated by the trial court. See

Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284 (1944) ("By repeated decisions

of this court it is the definitively established law of this state that where the judgment is

correct, a reviewing court is not authorized to reverse such judgment merely because

erroneous reasons were assigned as the basis thereof."); Newcomb v. Dredge, 105 Ohio

App. 417, 424 (2d Dist.1957) ("It is the duty of the reviewing court to affirm the judgment

if it can be supported on any theory, although a different theory from that of the trial

court."); Harrod v. Travelers Property Cas., 10th Dist. No. 02AP-1181, 2003-Ohio-7229, ¶

32 ("[W]e therefore affirm the judgment of the Franklin County Court of Common Pleas,

although we affirm for different reasons.").

{¶ 21} Accordingly, we overrule appellant's first assignment of error.

{¶ 22} Appellant asserts in his second assignment of error that the trial court

committed plain error by denying his motion to dismiss because the felony indictment

violated the Double Jeopardy Clause of the United States Constitution and Article I, Section

10 of the Ohio Constitution. Appellant argues that the charges in the felony indictment were

allied offenses of similar import to the domestic violence charge to which he pled guilty in

the municipal court proceeding.1 Appellant contends that, because the prohibition on

multiple punishments for allied offenses is derived from the protection against double

jeopardy, his subsequent prosecution for allied offenses violated the Double Jeopardy

Clause.

1 In his brief on appeal and reply brief, appellant argues for application of the allied-offenses test set forth in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. We note that, subsequent to appellant's filings, the

Supreme Court of Ohio issued State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, modifying the test for allied

offenses of similar import.

No. 14AP-602 10

{¶ 23} The state claims that appellant waived this argument by failing to raise it in

the court below. However, under Crim.R. 52(B), "[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court." See State v. Toyloy, 10th Dist. No. 14AP-463, 2015-Ohio-1618, ¶ 19. "To constitute

plain error, the error must be obvious, on the record, palpable, and fundamental such that

it should have been apparent to the trial court without objection." State v. Gullick, 10th

Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3. Appellant appears to concede that he has waived

all but plain error with respect to this argument by asserting that the trial court committed

plain error in his statement of the second assignment of error. Therefore, we apply the

plain-error standard in our review of this issue.

{¶ 24} The Double Jeopardy Clause of the United States Constitution provides that

no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."

United States Constitution, Amendment V. This protection applies to the states through the

Fourteenth Amendment to the United States Constitution. State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, ¶ 10. The Ohio Constitution similarly provides that "[n]o person

shall be twice put in jeopardy for the same offense." Ohio Constitution, Article I, Section 10.

Because the protection afforded by the two clauses is coextensive, our analysis will focus on

the Double Jeopardy Clause of the United States Constitution. See State v. Martello, 97

Ohio St.3d 398, 2002-Ohio-6661, ¶ 7 ("The protections afforded by the two Double

Jeopardy Clauses are coextensive.").

{¶ 25} The Double Jeopardy Clause protects against (1) a second prosecution for the

same offense following acquittal, (2) a second prosecution for the same offense following

conviction, and (3) multiple punishments for the same offense. Brown at ¶ 10. Appellant is

correct that the General Assembly has codified the Double Jeopardy Clause protection

against multiple punishments through the allied-offenses statute. See State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, ¶ 12; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-

1, ¶ 23 ("R.C. 2941.25 codifies the protections of the Double Jepoardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article I of the Ohio

Constitution, which prohibits multiple punishments for the same offense."). However, this

case involves an issue of successive prosecution, rather than multiple punishments.

No. 14AP-602 11

{¶ 26} 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 (1932). Zima at ¶ 18. See also State v. Volpe,

10th Dist. No. 06AP-1153, 2008-Ohio-1678, ¶ 64 ("Zima involved a case of successive

prosecutions, the permissibility of which is determined by the test articulated in

Blockburger."). Under the Blockburger test, the court considers the elements of the two

statutory provisions, "not upon the evidence proffered in a given case" to establish those

elements, and determines whether each offense contains an element not contained in the

other. Zima at ¶ 20. See also Ruff at ¶ 37 (French, J., concurring in judgment only) ("The

Blockburger rule, also known as a same-elements test, focuses on the statutory elements of

the offense and not the particular facts of the case or the proof offered to establish the

crimes." (Internal citations omitted.)). If not, the two offenses are considered the "same

offense" for purposes of the Double Jeopardy Clause, and successive prosecution is barred.

Zima at ¶ 20, citing United States v. Dixon, 509 U.S. 688, 696 (1993).2

2 In arguing against application of the Blockburger test, appellant cites to language from the United States

Supreme Court providing an exception to Blockburger in certain circumstances. (Appellant's Brief at 58-60,

citing State v. DeLong, 70 Ohio App.3d 402 (10th Dist.1990), which cited Grady v. Corbin, 495 U.S. 508, 516-

21 (1990)); (Reply Brief at 16-17, citing Brown v. Ohio, 432 U.S. 161 (1977)). This exception was most clearly

set forth in the Brown decision, wherein the court stated: "Even if two offenses are sufficiently different to

permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances

where the second prosecution requires the relitigation of factual issues already resolved by the first." Brown

at 166, fn. 6. This statement was based on the conclusion that the Double Jeopardy Clause incorporates

principles of collateral estoppel, preventing relitigation of previously decided factual issues. Id. The Supreme

Court of Ohio cited this exception in at least two decisions, State v. Thomas, 61 Ohio St.2d 254 (1990),

paragraph four of the syllabus, and State v. Tolbert, 60 Ohio St.3d 89, 91 (1991). Although some courts have

recently cited this exception (see, e.g., State v. Edwards, 8th Dist. No. 94568, 2011-Ohio-95, ¶ 19), a review of

subsequent decisions from the United States Supreme Court and the Supreme Court of Ohio casts doubt upon

its continued viability.

In Grady, the United States Supreme Court held that the Double Jeopardy Clause "bars any subsequent

prosecution in which the government, to establish an essential element of an offense charged in that

prosecution, will prove conduct that constitutes an offense for which the defendant has already been

prosecuted." Grady at 521. The Grady decision expressly relied on Brown, and other earlier decisions, in

reaching this conclusion. Id. at 515-22. However, only three years later, the United States Supreme Court

decided United States v. Dixon, 509 U.S. 688 (1993), in which it expressly overruled Grady, holding that

"[t]he 'same-conduct' rule [Grady] announced is wholly inconsistent with earlier Supreme Court precedent

and with the clear common-law understanding of double jeopardy." Dixon at 704. Although the Dixon

decision did not expressly overrule the exception set forth in Brown, it referred to Brown's statement that the

Blockburger test was not the only standard for determining whether successive prosecutions were barred by

the Double Jeopardy Clause as "the purest dictum." Id. at 706. Similarly, in State v. Zima, 102 Ohio St.3d 61,

2004-Ohio-1807, the Supreme Court of Ohio rejected the appellant's argument that her second prosecution

was barred under the Double Jeopardy Clause despite passing the Blockburger test because it would prove

conduct that constituted an offense for which she was already prosecuted. The Supreme Court held that this

No. 14AP-602 12

{¶ 27} In the municipal court proceeding, appellant was charged with and pled

guilty to domestic violence, in violation of R.C. 2919.25(A). That statute provides that "[n]o

person shall knowingly cause or attempt to cause physical harm to a family or household

member." R.C. 2919.25(A). The felony indictment charged appellant with two counts of

endangering children, in violation of R.C. 2919.22, and one count of felonious assault, in

violation of R.C. 2903.11. We will apply the Blockburger test to each charge in the felony

indictment to determine whether it constituted the "same offense" as the domestic violence

charge in the municipal court proceeding.

{¶ 28} The statute defining the crime of endangering children offers several

alternate forms of committing the offense; therefore, we must consider the language of the

felony indictment to determine which portions of the statute appellant was charged with

violating. The first count of the felony indictment alleged that appellant recklessly abused

the victim, who was under the age of 18, resulting in serious physical harm to the victim.

Thus, the first count of the felony indictment appears to charge appellant with a violation

of R.C. 2919.22(B)(1), which provides that no person shall abuse a child less than 18 years

of age.3 The second count of the felony indictment set forth alternative allegations,

mirroring the statutory language set forth in R.C. 2919.22(B)(2) through (4).

{¶ 29} Endangering children, as prohibited under R.C. 2919.22(B)(1) through (4),

requires that the victim be a child. By contrast, the crime of domestic violence in violation

of R.C. 2919.25(A) provides that the victim must be a "family or household member." The

statute defines certain individuals, both adults and children, who may be a "family or

household member," but requires that the individual must "resid[e] or [have] resided with

the offender." R.C. 2919.25(F)(1). There is no requirement that the victim of child

endangering must reside with the offender. Therefore, under the Blockburger test, the

endangering charges under the felony indictment were not the "same offense" as domestic

was effectively the "same conduct" test adopted in Grady and overruled in Dixon. Zima at ¶ 35. The Zima

decision applied the Blockburger test without considering the "even if" exception set forth in Brown and other

decisions.

Because Dixon and Zima appear to reject the exception to the Blockburger test developed in Brown

and subsequent cases, this decision applies the Blockburger test, focusing strictly on the elements of the

crimes charged in each prosecution.

3 The Supreme Court of Ohio has held that the culpable mental state for the crime of endangering children is

recklessness. State v. Adams, 62 Ohio St.2d 151, 152-53 (1980) (holding that "[r]ecklessness * * * is sufficient

culpability to commit the offense [of endangering children]" because the statute does not specify any culpable

mental state and does not plainly indicate a purpose to impose strict liability).

No. 14AP-602 13

violence for double jeopardy purposes because each crime contains an element that the

other does not.

{¶ 30} The third count of the felony indictment alleged that appellant knowingly

caused serious physical harm to the victim in violation of R.C. 2903.11. This language

mirrors the definition of felonious assault under R.C. 2903.11(A)(1), which provides that no

person shall knowingly cause serious physical harm to another or to another's unborn.

Under R.C. Title 29, "serious physical harm" is defined in various ways as a heightened form

of physical harm. Compare R.C. 2901.01(A)(5) (defining serious physical harm to persons)

with R.C. 2901.01(A)(3) (defining physical harm to persons). Domestic violence in violation

of R.C. 2919.25(A) prohibits causing or attempting physical harm, while felonious assault

in violation of R.C. 2903.11(A) prohibits causing serious physical harm. Moreover, as

explained above, domestic violence in violation of R.C. 2919.25(A) requires that the victim

be a family or household member, while felonious assault in violation of R.C. 2903.11(A)(1)

may involve any other person. Thus, under the Blockburger test, the felonious assault

charge was not the "same offense" as domestic violence for double jeopardy purposes.

{¶ 31} Because the charges against appellant were not the same offenses for double

jeopardy purposes as the crime to which appellant pled guilty in the municipal court

proceeding, the trial court did not commit plain error by denying his motion to dismiss the

felony indictment.

{¶ 32} Accordingly, we overrule appellant's second assignment of error.

{¶ 33} For the foregoing reasons, we overrule appellant's two assignments of error

and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BRUNNER, J., concurs in judgment only, writing separately.

HORTON, J., concurs in judgment only.

BRUNNER, J., concurring in judgment only, writing separately.

{¶ 34} I concur in the majority's result on the first assignment of error because I do

not believe the facts in this case support the notion that Bridges pled guilty as a result of a

negotiated plea such that he could have had a reasonable belief that his plea terminated the

incident. In addition, because the United States Supreme Court case law on double

No. 14AP-602 14

jeopardy has unfortunately taken us in the direction we decide today, I must concur with

the majority's result on the second assignment of error based on United States v. Dixon,

509 U.S. 688 (1993). However, I write separately to register my dissatisfaction with the

result compelled by Dixon and to express my view that the cases cited by the majority would

not justify overruling Bridges' first assignment of error if the facts of this case had supported

the notion that Bridges had pled guilty as a result of a negotiated plea rather than what

could be characterized as a unilateral gambit by the defense.

First Assignment of Error:

{¶ 35} Had Bridges pled guilty as a result of a negotiated plea, it would have been

proper for the common pleas court to grant his motion to dismiss. The state did not reserve

the right on the record to bring future charges as a result of the incident from which the

municipal charges and plea arose, and felony charges were not filed until after Bridges pled

guilty to domestic violence, and the municipal court dismissed the associated assault

charge. Whether the state was represented by the city attorney or the county prosecutor

and at which juncture is immaterial, since no representative of the state reserved the right

to bring further charges from the incident prosecuted.

{¶ 36} Moreover, by the time felony charges were indicted, Bridges already had been

prosecuted and convicted. That the state missed the opportunity to indict Bridges for more

serious crimes cannot be remedied using State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-

1807, because it is significantly and factually different from this case. Bridges was

prosecuted by the state before the municipal court for crimes that occurred in a single,

defined set of circumstances—he committed violence resulting in physical harm to his

seven-year-old son, striking him multiple times in the neck, chest, back, and arms with a

belt, resulting in dark bruises, welts, and broken skin.

{¶ 37} In Zima, the defendant was prosecuted in Cleveland Municipal Court only for

driving under the influence, driving under suspension, failure to yield, and failure to wear

a seatbelt for a single activity that culminated in her striking with her car an oncoming

motorcycle. Later, she was charged with aggravated vehicular assault under circumstances

of driving under the influence and driving recklessly, and she was charged again with

driving under the influence. She pled no contest to the first driving under the influence

charge and was found guilty, the other municipal charges having been dismissed. When

No. 14AP-602 15

Zima pled guilty on municipal charges, she had already been indicted on the felony charges

by a grand jury and was presumably aware of those charges. Any argument that she had a

reasonable expectation that her plea terminated her culpability is implausible.

{¶ 38} Bridges, however, was not indicted until the day after he pled guilty to

misdemeanor charges for the same single course of violence toward his son that he had

been prosecuted for the previous day. Accordingly, if the record showed that Bridges had

pled guilty as a result of a negotiation with the prosecutor, the holdings in State v.

Carpenter, 68 Ohio St.3d 59 (1993), and State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-

3547, ¶ 52-60, would be more appropriately applied to Bridges' situation, as opposed to the

holding in Zima. It would have been reasonable for Bridges to have an expectation that his

earlier guilty plea was terminating his culpability in the incident involving his son because,

unlike in Zima, Bridges' actions were indivisible. Zima could be prosecuted on one day for

particular driving infractions that did not involve direct injury to another and separately

for actual harm she caused to another when she not only drove recklessly and under the

influence, but hit a motorcycle doing so (except for the offense of driving under the

influence, of which she was previously found guilty).

Second Assignment of Error:

{¶ 39} Despite the United States Supreme Court's decision in Dixon to repudiate the

"same conduct" test, I fail to see by any stretch of the imagination that the public could have

any confidence in the justice system in Franklin County when the State of Ohio, whether

represented by the Columbus City Attorney or the Franklin County Prosecutor, can with

our sanction prosecute appellant twice for the same crime. I believe the reasoning in Brown

v. Ohio, 432 U.S. 161 (1977), involving the double prosecution of joy riding and auto theft

by two municipalities for actions occurring over a nine-day period using the same vehicle

should still apply. In Brown, the United States Supreme Court stated:

The question in this case is whether the Double Jeopardy

Clause of the Fifth Amendment bars prosecution and

punishment for the crime of stealing an automobile following

prosecution and punishment for the lesser included offense of

operating the same vehicle without the owner's consent.

Id. at 162. The Supreme Court stated:

No. 14AP-602 16

As is invariably true of a greater and lesser included offense, the

lesser offense[—]joyriding[—]requires no proof beyond that

which is required for conviction of the greater[—]auto theft.

The greater offense is therefore by definition the "same" for

purposes of double jeopardy as any lesser offense included in

it.

Id. at 168. Domestic violence involves knowingly causing physical harm or recklessly

causing serious physical harm to a family or household member. R.C. 2919.25. Child

endangering and felonious assault do not necessarily involve a family or household

member, but as indicted involve inflicting serious physical harm. R.C. 2919.22(B) and

2903.11. Both sets of charges, in municipal court, and in the common pleas court, relate to

the same incident and the same victim, Bridges' beating of his child. While child

endangering involves a child as opposed to a family member, the status of the victim in

regard to the harm suffered did not change whether or not he was characterized as a family

member or as a child—he was still harmed.

{¶ 40} The crux of crimes prosecuted—domestic violence, assault, child

endangering, and felonious assault—is physical harm or serious physical harm. Even if the

conviction in the municipal court was for the infliction of physical harm only, that would

necessarily be able to be proved in the common pleas court by finding Bridges guilty of

having inflicted serious physical harm based on child endangering or felonious assault.

{¶ 41} Further, whether the more serious crime is prosecuted first or second is

immaterial under the United States Supreme Court's holding in Brown:

"[W]here… a person has been tried and convicted for a crime

which has various incidents included in it, he cannot be a

second time tried for one of those incidents without being

twice put in jeopardy for the same offence." [In re Nielsen, 131

U.S. 176, 188 (1889).]

Although in this formulation the conviction of the greater

precedes the conviction of the lesser, the opinion makes it

clear that the sequence is immaterial.

Brown at 168. Under Brown, double jeopardy attaches, and the second prosecution cannot

constitutionally commence.

No. 14AP-602 17

{¶ 42} Finally, even if the second prosecution of Bridges could be taken to be for a

different part of the same day in which Bridges beat his son, the United States Supreme

Court in Brown stated that double jeopardy still attaches:

The Double Jeopardy Clause is not such a fragile guarantee that

prosecutors can avoid its limitations by the simple expedient of

dividing a single crime into a series of temporal or spatial units.

Cf. Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99,

101, 87 L.Ed. 23 (1942). The applicable Ohio statutes, as written

and as construed in this case, make the theft and operation of a

single car a single offense. Although the Wickliffe and East

Cleveland authorities may have had different perspectives on

Brown's offense, it was still only one offense under Ohio law.

Accordingly, the specification of different dates in the two

charges on which Brown was convicted cannot alter the fact

that he was placed twice in jeopardy for the same offense in

violation of the Fifth and Fourteenth Amendments.

(Footnote deleted.) Id. at 169-70.

Conclusion:

{¶ 43} The judgment of the trial court is troubling. Without Dixon, and based on

Brown, it is clear that Bridges was prosecuted twice for the same crime in violation of the

Double Jeopardy Clause of the Fifth Amendment. Although Dixon's strict insistence on

figuratively "lining up" the elements under an exact comparison test allows the crimes to

be artificially differentiated, in my view, common sense shows that, on these facts, these are

the same offenses by different names—the offenses here concerned the same course of

conduct against the same person and essentially the same harm. The second prosecution

of Bridges should be constitutionally impermissible double jeopardy in violation of the Fifth

and Fourteenth Amendments of the United States Constitution. In addition, had Bridges

pled guilty as a result of a negotiated plea, Carpenter and Harrison would apply, not Zima,

and Bridges would have had a justifiable and reasonable expectation that his plea

terminated the incident with the result that it would have violated due process to prosecute

him further.