[Cite as State v. Lear, 2018-Ohio-1874.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-17-1261
Appellant Trial Court No. CRB-17-09141
v.
Rayqwaun Deurice Edward Lear DECISION AND JUDGMENT
Appellee Decided: May 11, 2018
*****
David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
MAYLE, P.J.
{¶ 1} Plaintiff-appellant, the city of Toledo, appeals the September 27, 2017
judgment of the Toledo Municipal Court, dismissing a misdemeanor charge of violation
of a protection order filed against defendant-appellee, Rayqwaun Deurice Edward Lear.
For the reasons that follow, we reverse the trial court judgment. I. Background
{¶ 2} On July 24, 2017, Rayqwaun Lear was charged in Toledo Municipal Court
with domestic violence, a violation of R.C. 2919.25; assault, a violation of R.C. 2903.13;
and violation of a protection order, a violation of R.C. 2919.27. All three offenses are
first-degree misdemeanors. It was discovered that Lear had a prior assault charge, so the
county prosecutor secured an indictment from the Lucas county grand jury on one count
of felony domestic violence, and the city dismissed the complaints for misdemeanor
assault and domestic violence. It intended, however, to proceed in municipal court on
the misdemeanor charge of violation of a protection order.
{¶ 3} On September 27, 2017, Lear appeared in the Toledo Municipal Court and
was prepared to enter a plea for violation of the protection order. The court, however,
believed that under Crim.R. 5(B)(1), it had been divested of jurisdiction to hear the
violation-of-protection-order charge because the domestic violence and assault charges
had been “bound over to Common Pleas Court” and all three charges arose from the same
facts and circumstances. Over the city’s objection, it dismissed the case, citing as
authority Crim.R. 5.1
{¶ 4} The city appealed and assigns a single assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN
DISMISSING THE CASE PURSUANT TO CRIMINAL RULE 5(B).
1 The journal entry in this case states that the court dismissed the case on Lear’s motion, but the hearing transcript shows that the court raised this issue itself. 2. II. Law and Analysis
{¶ 5} The trial court relied on Crim.R. 5(B)(1) in dismissing the violation-of-
protection-order charge against Lear. The city argues that Crim.R. 5(B)(1) is
procedurally inapplicable here because no preliminary hearing was held, nor was one
waived; rather, Lear was indicted on the felony domestic violence charge, and the city
dismissed the misdemeanor domestic violence and assault charges.
{¶ 6} Lear responds that all three misdemeanor charges arose from the same facts
and circumstances. He claims that he “was indicted and pleaded no contest to a felony
for arguably the same facts and circumstances as the facts and circumstances surrounding
the violation of the protection order.” As such, he argues, “there is an issue of double
jeopardy, because a person cannot be tried twice, or in two different courts, for the same
offense.” Lear also claims that the trial court had authority to dismiss the criminal
complaint under Crim.R. 48(B).
A. Crim.R. 5(B)(1).
{¶ 7} Crim.R. 5(B)(1) provides, in pertinent part, as follows:
In felony cases a defendant is entitled to a preliminary hearing unless
waived in writing. If the defendant waives preliminary hearing, the judge
or magistrate shall forthwith order the defendant bound over to the court of
common pleas. Except upon good cause shown, any misdemeanor, other
than a minor misdemeanor, arising from the same act or transaction
involving a felony shall be bound over or transferred with the felony case.
3. {¶ 8} The state argues that no preliminary hearing was held or waived in this case,
therefore, Crim.R. 5(B)(1) is inapplicable. This is necessarily true given that Lear was
charged with no felonies in municipal court; the assault and domestic violence charges
filed in municipal court were both misdemeanors. Without a felony charged in municipal
court, the misdemeanor charge could not be bound over to common pleas court under
Crim.R. 5(B)(1). See State v. Murray, 12th Dist. Clermont No. CA2016-01-005, 2016-
Ohio-7364, ¶ 10 (recognizing that while Crim.R. 5(B)(1) requires that misdemeanor
charges be bound over with related felony charges, “[t]he rule does not address the
situation * * * where the state files misdemeanor charges in municipal court and the
grand jury returns a separate indictment on related felony charges.”); State v. Parker,
2017-Ohio-1389, 89 N.E.3d 152, ¶ 14 (2d Dist.) (observing that where there is no felony
to bind over to the common pleas court, there is no mechanism for binding over
misdemeanors). Because Crim.R. 5(B)(1) is inapplicable, the municipal court erred in
relying on this rule to dismiss the misdemeanor charge against Lear.
B. Crim.R. 48.
{¶ 9} Lear urges that even if Crim.R. 5(B)(1) is inapplicable, under Crim.R. 48,
the trial court had discretion to dismiss the violation-of-protection-order charge. Crim.R.
48 provides that “[i]f the court over objection of the state dismisses an indictment,
information, or complaint, it shall state on the record its findings of fact and reasons for
the dismissal.” The Ohio Supreme Court has recognized that generally speaking, this
4. rule provides “authority for trial judges to dismiss criminal actions sua sponte.” State v.
Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996).2
{¶ 10} Ordinarily, we review a trial court’s decision to dismiss a criminal
complaint under an abuse-of-discretion standard. State v. Neeley, 9th Dist. Summit Nos.
26190, 26191, 2012-Ohio-4027, ¶ 7, citing Busch at 616. Where, however, the court’s
decision raises a question of law, we review de novo. Neeley at ¶ 8 (reviewing de novo
and reversing court’s dismissal of complaint based on its incorrect determination that the
Department of Public Safety lacked authority to bring charges).
{¶ 11} Here, the municipal court’s explanation for dismissing the case was that
“[p]ursuant to Criminal Rule 5 I don’t have jurisdiction.” We find that the trial court’s
explanation for exercising its discretion to dismiss the criminal complaint was based on
an incorrect interpretation of Crim.R. 5(B)(1). We, therefore, reject Lear’s argument that
the charge against him was properly dismissed under Crim.R. 48(B).
C. Double Jeopardy.
{¶ 12} Finally, Lear argues that he has already been convicted of a felony “for
arguably the same facts and circumstances surrounding the violation of the protection
2 But see R.C. 1901.20(A)(2) (“A judge of a municipal court does not have the authority to dismiss a criminal complaint, charge, information, or indictment solely at the request of the complaining witness and over the objection of the prosecuting attorney, village solicitor, city director of law, or other chief legal officer who is responsible for the prosecution of the case.”).
5. order.” He claims, therefore, that there is an issue of double jeopardy if he is held to
answer for both the felony domestic-violence and misdemeanor violation-of-protection-
order charges.
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[Cite as State v. Lear, 2018-Ohio-1874.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-17-1261
Appellant Trial Court No. CRB-17-09141
v.
Rayqwaun Deurice Edward Lear DECISION AND JUDGMENT
Appellee Decided: May 11, 2018
*****
David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
MAYLE, P.J.
{¶ 1} Plaintiff-appellant, the city of Toledo, appeals the September 27, 2017
judgment of the Toledo Municipal Court, dismissing a misdemeanor charge of violation
of a protection order filed against defendant-appellee, Rayqwaun Deurice Edward Lear.
For the reasons that follow, we reverse the trial court judgment. I. Background
{¶ 2} On July 24, 2017, Rayqwaun Lear was charged in Toledo Municipal Court
with domestic violence, a violation of R.C. 2919.25; assault, a violation of R.C. 2903.13;
and violation of a protection order, a violation of R.C. 2919.27. All three offenses are
first-degree misdemeanors. It was discovered that Lear had a prior assault charge, so the
county prosecutor secured an indictment from the Lucas county grand jury on one count
of felony domestic violence, and the city dismissed the complaints for misdemeanor
assault and domestic violence. It intended, however, to proceed in municipal court on
the misdemeanor charge of violation of a protection order.
{¶ 3} On September 27, 2017, Lear appeared in the Toledo Municipal Court and
was prepared to enter a plea for violation of the protection order. The court, however,
believed that under Crim.R. 5(B)(1), it had been divested of jurisdiction to hear the
violation-of-protection-order charge because the domestic violence and assault charges
had been “bound over to Common Pleas Court” and all three charges arose from the same
facts and circumstances. Over the city’s objection, it dismissed the case, citing as
authority Crim.R. 5.1
{¶ 4} The city appealed and assigns a single assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN
DISMISSING THE CASE PURSUANT TO CRIMINAL RULE 5(B).
1 The journal entry in this case states that the court dismissed the case on Lear’s motion, but the hearing transcript shows that the court raised this issue itself. 2. II. Law and Analysis
{¶ 5} The trial court relied on Crim.R. 5(B)(1) in dismissing the violation-of-
protection-order charge against Lear. The city argues that Crim.R. 5(B)(1) is
procedurally inapplicable here because no preliminary hearing was held, nor was one
waived; rather, Lear was indicted on the felony domestic violence charge, and the city
dismissed the misdemeanor domestic violence and assault charges.
{¶ 6} Lear responds that all three misdemeanor charges arose from the same facts
and circumstances. He claims that he “was indicted and pleaded no contest to a felony
for arguably the same facts and circumstances as the facts and circumstances surrounding
the violation of the protection order.” As such, he argues, “there is an issue of double
jeopardy, because a person cannot be tried twice, or in two different courts, for the same
offense.” Lear also claims that the trial court had authority to dismiss the criminal
complaint under Crim.R. 48(B).
A. Crim.R. 5(B)(1).
{¶ 7} Crim.R. 5(B)(1) provides, in pertinent part, as follows:
In felony cases a defendant is entitled to a preliminary hearing unless
waived in writing. If the defendant waives preliminary hearing, the judge
or magistrate shall forthwith order the defendant bound over to the court of
common pleas. Except upon good cause shown, any misdemeanor, other
than a minor misdemeanor, arising from the same act or transaction
involving a felony shall be bound over or transferred with the felony case.
3. {¶ 8} The state argues that no preliminary hearing was held or waived in this case,
therefore, Crim.R. 5(B)(1) is inapplicable. This is necessarily true given that Lear was
charged with no felonies in municipal court; the assault and domestic violence charges
filed in municipal court were both misdemeanors. Without a felony charged in municipal
court, the misdemeanor charge could not be bound over to common pleas court under
Crim.R. 5(B)(1). See State v. Murray, 12th Dist. Clermont No. CA2016-01-005, 2016-
Ohio-7364, ¶ 10 (recognizing that while Crim.R. 5(B)(1) requires that misdemeanor
charges be bound over with related felony charges, “[t]he rule does not address the
situation * * * where the state files misdemeanor charges in municipal court and the
grand jury returns a separate indictment on related felony charges.”); State v. Parker,
2017-Ohio-1389, 89 N.E.3d 152, ¶ 14 (2d Dist.) (observing that where there is no felony
to bind over to the common pleas court, there is no mechanism for binding over
misdemeanors). Because Crim.R. 5(B)(1) is inapplicable, the municipal court erred in
relying on this rule to dismiss the misdemeanor charge against Lear.
B. Crim.R. 48.
{¶ 9} Lear urges that even if Crim.R. 5(B)(1) is inapplicable, under Crim.R. 48,
the trial court had discretion to dismiss the violation-of-protection-order charge. Crim.R.
48 provides that “[i]f the court over objection of the state dismisses an indictment,
information, or complaint, it shall state on the record its findings of fact and reasons for
the dismissal.” The Ohio Supreme Court has recognized that generally speaking, this
4. rule provides “authority for trial judges to dismiss criminal actions sua sponte.” State v.
Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996).2
{¶ 10} Ordinarily, we review a trial court’s decision to dismiss a criminal
complaint under an abuse-of-discretion standard. State v. Neeley, 9th Dist. Summit Nos.
26190, 26191, 2012-Ohio-4027, ¶ 7, citing Busch at 616. Where, however, the court’s
decision raises a question of law, we review de novo. Neeley at ¶ 8 (reviewing de novo
and reversing court’s dismissal of complaint based on its incorrect determination that the
Department of Public Safety lacked authority to bring charges).
{¶ 11} Here, the municipal court’s explanation for dismissing the case was that
“[p]ursuant to Criminal Rule 5 I don’t have jurisdiction.” We find that the trial court’s
explanation for exercising its discretion to dismiss the criminal complaint was based on
an incorrect interpretation of Crim.R. 5(B)(1). We, therefore, reject Lear’s argument that
the charge against him was properly dismissed under Crim.R. 48(B).
C. Double Jeopardy.
{¶ 12} Finally, Lear argues that he has already been convicted of a felony “for
arguably the same facts and circumstances surrounding the violation of the protection
2 But see R.C. 1901.20(A)(2) (“A judge of a municipal court does not have the authority to dismiss a criminal complaint, charge, information, or indictment solely at the request of the complaining witness and over the objection of the prosecuting attorney, village solicitor, city director of law, or other chief legal officer who is responsible for the prosecution of the case.”).
5. order.” He claims, therefore, that there is an issue of double jeopardy if he is held to
answer for both the felony domestic-violence and misdemeanor violation-of-protection-
order charges.
{¶ 13} “The double-jeopardy protections of the United States Constitution’s Fifth
Amendment, which are applicable to the states under the Fourteenth Amendment, and
Article I, Section 10 of the Ohio Constitution prohibit multiple prosecutions for the same
offense.” State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 2.
The Ohio Supreme Court has adopted the “same elements” test articulated in Blockburger
v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 (1932), to determine
whether a defendant has been subjected to two prosecutions for the same offense. Mutter
at ¶ 17. This test requires the reviewing court to evaluate the elements of each statute to
determine “‘whether each provision requires proof of a fact which the other does not.’”
Id., quoting Blockburger at 304. The test focuses upon the elements of the offenses, not
the evidence proffered in the case. Id. If each offense contains an element not contained
in the other, double jeopardy does not bar successive prosecutions. Id.
{¶ 14} A conviction for felony domestic violence requires proof that the defendant
(1) either knowingly caused or attempted to cause physical harm to a family or household
member (R.C. 2919.25(A)), recklessly caused serious physical harm to a family or
household member (R.C. 2919.25(B)), or by threat of force, knowingly caused a family
or household member to believe that he would cause him or her imminent physical harm
(R.C. 2919.25(C)); and (2) previously has pleaded guilty to or been convicted of
domestic violence or a substantially similar offense involving a family or household
6. member (R.C. 2919.25(D)(3)). A conviction for violation of a protection order requires
proof that the defendant (1) was served with an order of protection, and (2) recklessly
violated its terms. R.C. 2919.27(A); State v. Schell, 9th Dist. Summit No. 28255, 2017-
Ohio-2641, ¶ 46.
{¶ 15} The protection order is not contained in the record, and it is not clear from
the record which provision of R.C. 2919.25 formed the basis for Lear’s domestic-
violence conviction. Nevertheless, R.C. 2919.25(A) and (C) require a mens rea element
not contained in R.C. 2919.27(A), and R.C. 2919.25(B) contains a “serious physical
harm” element not contained in R.C. 2919.27(A). Moreover, R.C. 2919.27(A) can be
violated without causing or threatening to cause harm to the victim. We conclude,
therefore, that the elements of felony domestic violence and violation of a protection
order are not the same, thus the protection against double jeopardy will not be violated by
successive prosecutions.
{¶ 16} Accordingly, we find the city’s sole assignment of error well-taken.
III. Conclusion
{¶ 17} The trial court erred in finding Crim.R. 5(B)(1) applicable to this case
because Lear was charged with no felonies in municipal court, thus there was no
mechanism for binding over the misdemeanor violation-of-protection order charge.
Because Crim.R. 5(B)(1) was inapplicable, the court could not properly rely on this
provision to dismiss the charge against Lear under Crim.R. 48. Finally, the protection
against double jeopardy will not be violated by successive prosecutions for felony
domestic violence and violation of a protection order.
7. {¶ 18} We, therefore, find the city’s sole assignment of error well-taken, and we
reverse the September 27, 2017 judgment of the Toledo Municipal Court. The case is
remanded to the trial court for proceedings consistent with this decision. Lear is ordered
to pay the costs of this appeal under App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.