State v. Fleischer

2023 Ohio 3597, 225 N.E.3d 1261

• Court: Ohio Court of Appeals
• Decided: September 29, 2023
• Docket: 22 MA 0061
• Status: Published

Opinion

[Cite as State v. Fleischer, 2023-Ohio-3597.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

DANIEL FLEISCHER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 22 MA 0061

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 21 CR 392

BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. Martin Yavorcik, 940 Windham Court, #7, Boardman, Ohio 44512, for Defendant- Appellant.

Dated: September 29, 2023 –2–

WAITE, J.

{¶1} Appellant Daniel Fleischer pleaded guilty in federal court to sexual

exploitation of children and receipt and distribution of visual depictions of minors engaged

in sexually explicit conduct. While he was a federal inmate, he was brought to Mahoning

County to stand trial for rape and gross sexual imposition. Appellant then alleged that the

Mahoning County prosecution violated his constitutional right against double jeopardy.

The dual sovereignty doctrine allows for separate prosecution of crimes in federal and

state court based on the same set of underlying facts. State v. Fletcher, 26 Ohio St.2d

221, 271 N.E.2d 567 (1971). Appellant is aware of this doctrine, but argues for the first

time on appeal that the doctrine should be overruled. Appellant cannot raise this

constitutional argument for the first time on appeal. In addition, we cannot simply

disregard current Ohio Supreme Court law. Appellant's assignment of error is overruled

and the judgment of the trial court is affirmed.

Case History and Facts

{¶2} On July 1, 2021, Appellant Daniel Fleischer was indicted in the Mahoning

County Court of Common Pleas on two counts of rape in violation of R.C. 2907.01(A)(1),

a felony one (with the victim alleged to be under ten years old), and five counts of gross

sexual imposition in violation of R.C. 2907.05(A)(4), felony three. A conviction on the

rape charges held the possibility of life in prison without parole. The crimes were alleged

to have occurred between September 6, 2010 and September 5, 2014. When the

indictment was issued, Appellant was a federal inmate. He was being held at FCI

Petersburg in Hopewell, Virginia. On August 30, 2021, the trial court issued a writ of

habeas corpus ad prosequendum to bring Appellant to Mahoning County for prosecution.

Case No. 22 MA 0061 –3–

{¶3} On March 31, 2022, Appellant filed a pretrial motion to dismiss based on

double jeopardy. Appellant alleged that he had been prosecuted in federal court for the

same conduct alleged in the Mahoning County indictment. Appellee responded that

Appellant was convicted in the United States District Court for the Northern District of

Ohio on one count of sexual exploitation of children, 18 U.S.C. 2251(a), and receipt and

distribution of visual depictions of minors engaged in sexually explicit conduct, 18 U.S.C.

2252(a)(2). Appellee argued that as the “dual sovereign” doctrine permits prosecution by

both the State of Ohio and the federal court system based on the same set of underlying

facts, Appellant’s motion should be denied.

{¶4} The trial court held a hearing on the motion on June 1, 2022. No evidence

was submitted at this hearing. The court overruled the motion to dismiss without comment

on June 3, 2022. This appeal followed on June 10, 2022. Appellant raises one

assignment of error on appeal.

ASSIGNMENT OF ERROR

THE COURT SHOULD OVERRULE THE "SEPARATE SOVEREIGNS"

EXCEPTION TO THE DOUBLE JEOPARDY CLAUSE.

{¶5} Appellant argues that he has already been prosecuted in federal court for

the conduct forming the basis of the charges in Mahoning County. He contends the state

somehow delayed his prosecution so that the federal conviction could become final, and

contends this delay also amounts to a violation of double jeopardy. Although Appellant

is aware that, under current law, federal and state courts can litigate criminal charges

based on the same underlying conduct without violating double jeopardy, he argues this

Case No. 22 MA 0061 –4–

law is not fair and should be overruled. Appellant concludes that the trial court should

have sustained his motion to dismiss on the grounds of double jeopardy.

{¶6} The denial of an interlocutory motion to dismiss on double jeopardy grounds

is a final, appealable order. State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6

N.E.3d 23.

{¶7} “Appellate courts apply a de novo standard of review when reviewing the

denial of a motion to dismiss an indictment on the grounds of double jeopardy.” State v.

Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.

{¶8} The Fifth Amendment to the United States Constitution states: “No person

shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.”

Similarly, Ohio's Constitution at Section 10 of Article I states: “No person shall be twice

put in jeopardy for the same offense.” The double jeopardy clause was made applicable

to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784,

89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Section 10, Article I of the Ohio Constitution

provides for the same protection pursuant to Ohio law, and the two double jeopardy

clauses have been held to be coextensive. State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284, ¶ 14.

{¶9} The Double Jeopardy Clause protects a criminal defendant from repeated

prosecutions for the same offense. State v. Loza, 71 Ohio St.3d 61, 71, 641 N.E.2d 1082

(1994), citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416

(1982). “The Double Jeopardy Clause protects against three abuses: (1) ‘a second

prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same

offense after conviction,’ and (3) ‘multiple punishments for the same offense.’ ” State v.

Case No. 22 MA 0061 –5–

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other

grounds; Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

{¶10} Appellant contends it is the second of these three abuses that has occurred

in this case. Appellant argues he was prosecuted in federal court for the same offenses

that were brought in the Mahoning County indictment. No evidence was presented as

part of his motion to dismiss in order to establish what took place in the federal

proceedings, however.

{¶11} Appellant is aware of the doctrine of dual sovereignty, allowing for separate

prosecution in state and federal courts based on the same underlying set of facts:

Our double jeopardy case law is complex, but at its core, the Clause means

that those acquitted or convicted of a particular “offence” cannot be tried a

second time for the same “offence.” But what does the Clause mean by an

“offence”?

We have long held that a crime under one sovereign's laws is not “the same

offence” as a crime under the laws of another sovereign. Under this “dual-

sovereignty” doctrine, a State may prosecute a defendant under state law

even if the Federal Government has prosecuted him for the same conduct

under a federal statute.

Gamble v. United States, -- U.S. --, 139 S.Ct. 1960, 1964, 204 L.Ed.2d 322 (2019).

Case No. 22 MA 0061 –6–

{¶12} This rule is also called the two-sovereignty rule. Bartkus v. People of State

of Ill., 359 U.S. 121, 134, 3 L.Ed.2d 684, 79 S.Ct. 676 (1959). Ohio has accepted the

ongoing validity of the dual sovereignty doctrine:

“Every citizen of the United States is also a citizen of a State or territory. He

may be said to owe allegiance to two sovereigns, and may be liable to

punishment for an infraction of the laws of either. The same act may be an

offence or transgression of the laws of both.”

“That either or both may (if they see fit) punish such an offender, cannot be

doubted. Yet it cannot be truly averred that the offender has been twice

punished for the same offence; but only that by one act he has committed

two offences, for each of which he is justly punishable.”

State v. Fletcher, 26 Ohio St.2d 221, 223–24, 271 N.E.2d 567 (1971), quoting Moore v.

People of State of Illinois, 55 U.S. 13, 20, 14 L.Ed. 306 (1852).

{¶13} We also recognize that in Ohio the dual sovereignty doctrine continues to

be valid law. State v. Nickelson, 7th Dist. No. 19 BE 0039, 2020-Ohio-1149, 152 N.E.3d

1288, ¶ 24; State v. Riddle, Mahoning Nos. 99 CA 147, 99 CA 178, 99 CA 204, 2001 WL

1647211 (Dec. 18, 2001).

{¶14} Despite his knowledge of the law in this regard, Appellant contends that it

was a double jeopardy violation to prosecute him in Mahoning County for conduct that

formed the basis of his guilty plea and sentence in the United States District Court for the

Northern District of Ohio. Appellant urges that the dual sovereignty doctrine should be

overruled. If it is overruled, he contends that the alleged criminal conduct in his state

Case No. 22 MA 0061 –7–

case was an element of his federal prosecution and therefore, he cannot be prosecuted

for this conduct a second time. Appellant does not elaborate on the specifics of how the

state and federal cases overlap to support his theory that double jeopardy has occurred.

{¶15} One of the federal charges, receipt and distribution of visual depictions of

minors engaged in sexually explicit conduct, 18 U.S.C. 2252(a)(2), provides:

(a) Any person who--

***

(2) knowingly receives, or distributes, any visual depiction using any means

or facility of interstate or foreign commerce or that has been mailed, or has

been shipped or transported in or affecting interstate or foreign commerce,

or which contains materials which have been mailed or so shipped or

transported, by any means including by computer, or knowingly reproduces

any visual depiction for distribution using any means or facility of interstate

or foreign commerce or in or affecting interstate or foreign commerce or

through the mails, if--

(A) the producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

Case No. 22 MA 0061 –8–

shall be punished as provided in subsection (b) of this section. (Emphasis

added.)

{¶16} Appellant’s federal charge, sexual exploitation of children, 18 U.S.C.

2251(a), provides:

(a) Any person who employs, uses, persuades, induces, entices, or

coerces any minor to engage in, or who has a minor assist any other person

to engage in, or who transports any minor in or affecting interstate or foreign

commerce, or in any Territory or Possession of the United States, with the

intent that such minor engage in, any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct or for the

purpose of transmitting a live visual depiction of such conduct, shall be

punished as provided under subsection (e), if such person knows or has

reason to know that such visual depiction will be transported or transmitted

using any means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce or mailed, if that visual depiction

was produced or transmitted using materials that have been mailed,

shipped, or transported in or affecting interstate or foreign commerce by any

means, including by computer, or if such visual depiction has actually been

transported or transmitted using any means or facility of interstate or foreign

commerce or in or affecting interstate or foreign commerce or mailed.

(Emphasis added.)

Case No. 22 MA 0061 –9–

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the

U.S. Supreme Court established that, in a double jeopardy analysis, there are two

offenses if each of the two statutory provisions requires proof of an additional fact that the

other does not. If so, there is no double jeopardy violation. The language of the federal

statutes prohibiting an intent to have a minor engage in sexually explicit conduct appears

to refer to the overlapping conduct Appellant believes amounts to double jeopardy and

prevents him from being prosecuted in Mahoning County. However, rape and gross

sexual imposition, under Ohio law, depend on much more than proof of “sexually explicit

conduct,” and therefore, there does not appear to be any obvious double jeopardy

concern between the federal and state prosecutions, here. Nevertheless, both parties in

this appeal have presumed that the federal and state prosecutions do appear to overlap

for double jeopardy purposes, and rely on principles outside of Blockburger to make their

arguments.

{¶17} Appellee points out two main reasons why Appellant's argument in this

matter fails. First, Appellant never argued at the trial court level that the dual sovereignty

doctrine should be overruled. Constitutional questions must be raised at the first available

opportunity or else they are waived on appeal. State v. Awan, 22 Ohio St.3d 120, 489

N.E.2d 277 (1986), at syllabus. “It is axiomatic that a plaintiff cannot change the theory

of his case and present new arguments for the first time on appeal.” Snyder v. Lawrence,

7th Dist. Carroll No. 19 CA 0938, 2020-Ohio-3358, ¶ 27.

{¶18} The state first raised the dual sovereignty doctrine in its April 29, 2022

response to Appellant's motion to dismiss. At the hearing on Appellant's motion to

Case No. 22 MA 0061 – 10 –

dismiss, the trial court made it clear that dual sovereignty applied and was determinative

of Appellant’s motion to dismiss:

THE COURT: But the thing that it sounds like you are ignoring is the Dual-

Sovereignty Doctrine that's been adopted by the Seventh District Court of

Appeals. Do you have a response to that?

[APPELLANT’S COUNSEL]: I do, Your Honor.

Referenced in my motion -- so if you look at -- even the Supreme Court of

Ohio, okay, in Thomas, State v Thomas, the general rule is that double

jeopardy bars multiple prosecutions arising out of the same conduct except

where the state is unable to proceed at the outset because the admitted

facts necessary to sustain the charges have not occurred.

THE COURT: Well, is that the case here? I mean --

[APPELLANT’S COUNSEL]: Yeah, they could have gone forward. I am

not necessarily saying that they don't have a right to necessarily make the

argument, but what I'm saying is they intentionally did not prosecute him for

no good reason, okay?

THE COURT: What difference does that make? I mean --

[APPELLANT’S COUNSEL]: Well, based on Thomas, Your Honor, if

there's no new facts that they are relying on and while they're waiting --

Case No. 22 MA 0061 – 11 –

THE COURT: Yeah, but doesn't that happen all the time? Isn't there an

understanding between the state law enforcement agencies and the federal

law enforcement agencies, certain cases are taken over either by the state

or by the federal government, but that doesn't preclude the state or the

federal government from proceeding on the same charge based out of the

same facts because of the Dual-Sovereignty Doctrine?

[APPELLANT’S COUNSEL]: Yeah. And I think what it comes down to is

an issue of fairness, Your Honor.

(6/1/22 Tr., pp. 5-7.)

{¶19} The Thomas case referred to at the motion hearing is State v. Thomas, 61

Ohio St.2d 254, 259, 400 N.E.2d 897, 902 (1980), overruled by State v. Crago, 53 Ohio

St.3d 243, 559 N.E.2d 1353 (1990). Although part of Thomas was overruled by Crago,

this portion has been restored to good law because Crago has since been overruled by

Anderson, supra, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. Unfortunately for

Appellant, Thomas does not assist his argument. The main issue in Thomas was whether

“a conviction for robbery prior to the death of the robbery victim bars a subsequent

prosecution of the defendant for involuntary manslaughter. We conclude that it does not.”

Thomas at 258. Thomas involved two charges filed only in state court, not a state charge

following a federal conviction. Thomas does not mention or implicate the dual sovereignty

doctrine.

{¶20} At the hearing on Appellant's motion to dismiss, counsel conceded the

validity of the dual sovereignty doctrine, merely concluding it did not seem “fair.” Appellant

Case No. 22 MA 0061 – 12 –

never raised the possibility the dual sovereignty doctrine should be overruled, and it was

not an issue that was litigated in any manner. For that reason, Appellant has waived the

issue on appeal.

{¶21} The second reason Appellee advanced that Appellant's argument must fail

is because the dual sovereignty doctrine continues to be good law according to the Ohio

Supreme Court. A court of appeals may not simply overlook that law. “It is axiomatic

that: ‘Decisions of a court of last resort are to be regarded as law and should be followed

by inferior courts, whatever the view of the latter may be as to their correctness, until they

have been reversed or overruled * * *.’ ” Krause v. State, 31 Ohio St.2d 132, 148, 285

N.E.2d 736 (1972) (Schneider, J., concurring).

{¶22} The record reflects there is no basis on which to dismiss Appellant’s rape

and gross sexual imposition charges in this case. Double jeopardy concerns are not

implicated, here. The trial court correctly overruled Appellant’s motion to dismiss, and

Appellant's assignment of error is overruled.

Conclusion

{¶23} Appellant pleaded guilty to two charges in federal court, and while in federal

custody was transported to Ohio to undergo prosecution for rape and gross sexual

imposition. Appellant argued that he could not be prosecuted for those crimes in Ohio

based on double jeopardy protections, because he had already been prosecuted for the

underlying conduct in federal court. Assuming arguendo that the same criminal conduct

formed the basis for both set of charges, the doctrine of dual sovereignty allows for

prosecution in both jurisdictions. Appellant's claim that the doctrine of dual sovereignty

should be overruled on constitutional grounds was not raised in the trial court and cannot

Case No. 22 MA 0061 – 13 –

be asserted for the first time on appeal. The Ohio Supreme Court continues to uphold

and rely on the doctrine of dual sovereignty, and we cannot reverse the holding of a

superior court. Appellant's sole assignment of error is overruled and the judgment of the

trial court is affirmed.

Robb, J. concurs.

D’Apolito, P.J. concurs.

Case No. 22 MA 0061 [Cite as State v. Fleischer, 2023-Ohio-3597.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignment of

error is overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.