[Cite as State v. Trimble, 2013-Ohio-5094.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA8 : vs. : : DECISION AND JUDGMENT TANDY L. TRIMBLE, : ENTRY : Defendant-Appellant. : Released: 11/12/13 _____________________________________________________________ APPEARANCES:
Robert H. Huffer, Esq., Huffer and Huffer Co., L.P.A., Circleville, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶ 1} Tandy Trimble appeals the decision of the Pickaway Court of
Common Pleas convicting her of vehicular assault, a fourth degree felony in
violation of R.C. 2903.08(A)(2)(b), after it denied her motion to dismiss the
indictment based upon double jeopardy grounds. On appeal, Appellant
contends that 1) the trial court erred by not dismissing the indictment for
vehicular assault as she had been previously charged with aggravated
vehicular assault, which was dismissed; and 2) the trial court imposed too
harsh a sentence. Because we conclude that the crimes of vehicular assault Pickaway App. No. 13CA8 2
and aggravated vehicular assault contain different elements thereby
eliminating any issue of double jeopardy, the trial court correctly denied
Appellant’s motion to dismiss the indictment. Thus, Appellant’s first
assignment of error is overruled. Further, in light of our conclusion that trial
court did not abuse its discretion in imposing sentence, we also overrule
Appellant’s second assignment of error. Accordingly, the decision issued by
the trial court is affirmed.
FACTS
{¶ 2} Appellant was involved in a motor vehicle accident on June 2,
2012, when the vehicle she was driving crossed the median and collided
with another vehicle, and also a motorcycle. Charges against Appellant filed
in the Circleville Municipal Court originally included two counts of OVI, in
violation of R.C. 4511.19(A)(1)(i) and R.C. 4511.19(A)(1)(a), filed as two
separate cases. These cases were disposed of after Appellant agreed to enter
a plea of no contest to a reduced charge of physical control, in violation of
R.C. 4511.194. Her sentence included a suspended ninety day jail sentence,
a drivers’ license suspension, a $500.00 fine and costs, and twelve months
probation.
{¶ 3} Before Appellant pled to the physical control charge, a second
complaint was filed in the municipal court charging Appellant with Pickaway App. No. 13CA8 3
aggravated vehicular assault, in violation of R.C. 2903.08(A)(1)(a), OVI, in
violation of R.C. 4511.19(A)(1)(j)(3), and divided highways, in violation of
R.C. 4511.35. As will be discussed more fully infra, these charges were
eventually dismissed by the municipal court, in part due to Appellant’s prior
plea of no contest to the physical control charge, and in part, for future
indictment.
{¶ 4} Then, in October of 2012, Appellant was indicted in the
Pickaway County Court of Common Pleas on one count of vehicular assault,
a fourth degree felony in violation R.C. 2903.08(A)(2)(b). Appellant filed a
motion to dismiss the indictment based upon double jeopardy grounds,
however, the motion was overruled by the trial court. As a result, Appellant
entered a plea of no contest to the charge. The trial court sentenced
Appellant, by entry dated April 4, 2013, to ninety days in jail, a $2000.00
fine and costs, a five-year license suspension and three years of community
control. It is from this decision that Appellant now brings her timely appeal,
assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY NOT DISMISSING THE INDICTMENT OF DEFENDANT-APPELLANT, TANDY L. TRIMBLE, FOR VEHICULAR ASSAULT, AS DEFENDANT- APPELLANT, TANDY L. TRIMBLE, HAD BEEN PREVIOUSLY CHARGED WITH AGGRAVATED VEHICULAR ASSAULT, Pickaway App. No. 13CA8 4
WHICH WAS DISMISSED PURSUANT TO STATE V. HICKS, 2012-OHIO-3831, FOURTH DISTRICT COURT OF APPEALS.
II. THE TRIAL COURT IMPOSED TOO HARSH A SENTENCE ON DEFENDANT-APPELLANT, TANDY L. TRIMBLE, WHICH THE FOURTH DISTRICT COURT OF APPEALS HAS AUTHORITY TO MODIFY.”
ASSIGNMENT OF ERROR I
{¶ 5} In her first assignment of error, Appellant contends that the trial
court erred by not dismissing the indictment for vehicular assault as there
had been a previous indictment brought against her for aggravated vehicular
assault, which was dismissed. We apply a de novo standard of review when
reviewing the denial of a motion to dismiss on double jeopardy grounds.
State v. Delacerda, 6th Dist. Wood No. WD-12-021, 2013-Ohio-3556, ¶ 7;
citing State v. Williams, 6th Dist. Wood No. WD-07-079, 2008-Ohio-2730, ¶
7.
{¶ 6} “The Double Jeopardy Clause of the United States Constitution
prohibits (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. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, ¶ 10. These double-jeopardy protections
apply to the states through the Fourteenth Amendment. State v. Tolbert, 60
Ohio St.3d 89, 90, 573 N.E.2d 617 (1991). In addition, Section 10, Article I Pickaway App. No. 13CA8 5
of the Ohio Constitution provides: “No person shall be twice put in jeopardy
for the same offense.”
{¶ 7} The Supreme Court of Ohio has explained as follows, with
respect to applying the test to determine whether the same elements exist for
purposes of double jeopardy, in State v. Zima, 102 Ohio St.3d 61, 2004-
Ohio-1807, 806 N.E.2d 542, ¶¶ 18-20:
“In determining whether an accused is being successively
prosecuted for the ‘same offense,’ the court in [State v. Best, 42
Ohio St.2d 530, 330 N.E.2d 421 (1975)] adopted the so-called
‘same elements’ test articulated in Blockburger v. United States
(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, and
held:
‘The applicable rule under the Fifth Amendment is that
where the same act 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 Pickaway App. No. 13CA8 6
exempt the defendant from prosecution and punishment under
the other.’ Best at paragraph three of the syllabus.
In State v. Thomas (1980), 61 Ohio St.2d 254, 259, 15
O.O.3d 262, 400 N.E.2d 897, overruled on other grounds in
State v. Crago (1990), 53 Ohio St.3d 243, 559 N.E.2d 1353,
syllabus, the court explained, ‘This test focuses upon the
elements of the two statutory provisions, not upon the evidence
proffered in a given case.’ Thus, as summarized in United
States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 125
L.Ed.2d 556, the Blockburger test ‘inquires whether each
offense contains an element not contained in the other; if not,
they are the “same offense” and double jeopardy bars additional
punishment and successive prosecution.’ ”
{¶ 8} Here, Appellant was convicted of vehicular assault, a fourth
degree felony in violation of R.C. 2903.08(A)(2)(b), which provides:
“(A) No person, while operating or participating in the
operation of a motor vehicle, motorcycle, snowmobile,
locomotive, watercraft, or aircraft, shall cause serious physical
harm to another person or another’s unborn in any of the
following ways: Pickaway App. No. 13CA8 7
***
(2) In one of the following ways:
(b) Recklessly.”
Prior to the indictment that is the subject of the current appeal, Appellant
was charged with aggravated vehicular assault, a third degree felony in
violation of R.C. 2903.08(A)(1)(a), which provides:
locomotive, watercraft, or aircraft, shall cause serious physical
following ways:
(1)(a) As the proximate result of committing a violation of
division (A) of section 4511.19 of the Revised Code or of a
substantially equivalent municipal ordinance[.]”
At the time Appellant was indicted for aggravated vehicular assault, she was
also charged with OVI, in violation of R.C. 4511.19(a)(1)(j)(3), as well as
divided roadways, in violation of R.C. 4511.35. Appellant filed a motion to
dismiss all of these charges based upon grounds of double jeopardy. A
review of the record indicates, however, that the OVI and divided roadway Pickaway App. No. 13CA8 8
charges were dismissed based upon Appellant’s “plea to companion case
12TRC04481,” in which Appellant pled guilty to a charge of physical
control that stemmed from the same set of facts from which both the
aggravated vehicular assault and vehicular assault charges stemmed.
Further, the record indicates that the prior charge of aggravated vehicular
assault was dismissed “for future indictment.”
{¶ 9} It was after Appellant’s plea to the physical control charge in
the municipal court, and also after the municipal court’s dismissal of the
OVI, divided roadways and aggravated vehicular assault charge that
Appellant was finally indicted in the common pleas court on vehicular
assault. After her indictment, Appellant once again filed a motion to dismiss
based upon double jeopardy grounds, claiming that because an earlier charge
of aggravated vehicular assault had been brought and dismissed in the
municipal court, the State was barred from prosecuting her again. On
appeal, Appellant concedes that vehicular assault and aggravated vehicular
assault contain different elements, but she argues that because vehicular
assault carries a lesser penalty it should not have been permitted to be
pursued by the State, citing this Court’s prior reasoning in State v. Jackson,
4th Dist. Ross No. 12CA3309, 2012-Ohio-5619. For the following reasons,
we disagree. Pickaway App. No. 13CA8 9
{¶ 10} In State v. Jackson, this Court upheld the defendant’s
conviction for the lesser included offense of trespass after his conviction for
burglary was reversed and remanded. Id. at ¶ 13. In reaching our decision,
we concluded that such a result was not barred by the double jeopardy
clause. Id. Further, because the facts and legal issues involved in Jackson
differ from those currently before us, we find no value in considering the
analysis set forth therein. Instead, we find the reasoning set forth by the
Supreme Court of Ohio in State v. Zima, supra, to be helpful in resolving the
issue presently before us.
{¶ 11} In Zima, the Court held that “[p]rinciples of double jeopardy
do not apply to bar successive prosecutions for the offense of driving under
the influence in violation of R.C. 4511.19(A) (or a substantially equivalent
municipal ordinance) and the offense of aggravated vehicular assault under
R.C. 2903.08(A)(2).” State v. Zima, at syllabus. In reaching this decision,
the Court explained that “the offense of driving under the influence is one of
two alternative elements of aggravated vehicular assault, the other being
reckless operation.” Id. at ¶ 32. In drawing a distinction between a R.C.
2903.08(A)(1) charge versus an (A)(2) charge, the Court noted the differing
elements, the first of which requires proof of alcohol or drug involvement,
and the second of which requires only proof of recklessness. Id. at ¶ 33. Pickaway App. No. 13CA8 10
{¶ 12} As set forth above, prior to Appellant being indicted on
vehicular assault in violation of R.C. 2903.08(A)(2)(b), which contains an
element of recklessness, she was formerly charged with aggravated
vehicular assault in violation of R.C. 2903.08(A)(1). These two offenses
clearly contain different elements and as such, Appellant’s subsequent
indictment for vehicular assault based upon recklessness was not barred by
the previously dismissed complaint charging her with aggravated vehicular
assault based upon a violation of R.C. 4511.19.
{¶ 13} This conclusion is further supported by our recent decision,
State v. Hicks, 4th Dist. Adams No. 11CA933, 2012-Ohio-3831. Although
we did not reach the merits of the double jeopardy argument raised in that
appeal, we did address an argument related to the trial court’s denial of the
state’s motion to amend the indictment, during trial, from charging Hicks
with aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) to
vehicular assault in violation of R.C. 2903.08(A)(2)(b). Id. In Hicks, we
concluded that the trial court correctly denied the state’s motion, as such an
amendment would have changed the identity of the crime. Id. at ¶ 20. In
reaching our decision, we reasoned as follows:
“* * * R.C. 2903.08(A)(1)(a) and (A)(2)(b) each require proof
of a different element the other subsection does not require. Pickaway App. No. 13CA8 11
R.C. 2903.08(A)(1)(a) requires proof that the defendant caused
serious physical harm to another as a proximate result of
violating the OVI statute. R.C. 2903.08(A)(2)(b) requires proof
that the defendant caused serious physical harm to another as a
result of reckless conduct. Therefore, the amendment also
would have changed the identity of the charged offense because
the alleged offense and proposed offense ‘contain different
elements requiring independent proof.’ State v. Fairbanks, 172
Ohio App.3d 766, 2007-Ohio-4117, 876 N.E.2d 1293, ¶ 19
(12th Dist.). See State v. Murray, 5th Dist. No. 01 CA 00108,
2002 WL 925264, *2 (May 3, 2002); In re C.A., 8th Dist. No.
93525, 2010-Ohio-3508, ¶ 15. See generally State v.
Hohenberger, 189 Ohio App.3d 346, 2010-Ohio-4053, 938
N.E.2d 419, ¶ 46 (6th Dist.) (holding that R.C.
2903.08(A)(2)(b) is not a lesser included offense of R.C.
2903.08(A)(1)(a)).” Hicks at ¶ 22.
Thus, utilizing the “same elements” test set forth in Blockburger and as
discussed in Zima, supra, because aggravated vehicular assault and vehicular
assault contain different elements, Appellant’s prosecution for vehicular
assault was not a successive prosecution and did not violate the double Pickaway App. No. 13CA8 12
jeopardy clause. As such, the trial court did not err in denying Appellant’s
motion to dismiss the indictment based upon double jeopardy grounds.
{¶ 14} We further note, although not critical to the outcome in light
of the conclusions already reached, that because the previous complaint
charging Appellant with aggravated vehicular assault was dismissed by the
trial court, jeopardy did not “attach.” State v. Larabee, 69 Ohio St.3d 357,
632 N.E.2d 511, syllabus (1994) (“[j]eopardy does not attach when a trial
court grants a motion to dismiss an indictment.”); see also State v. Baranski,
173 Ohio App.3d 410, 2007-Ohio-4072, 878 N.E.2d 1058, ¶ 8.
Accordingly, Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶ 15} In her second assignment of error, Appellant contends that the
trial court imposed too harsh of a sentence and asks this Court to modify it.
Thus, Appellant essentially contends that the trial court abused its discretion
when it sentenced her. The record indicates that Appellant pled no contest
to a fourth degree felony offense, and that she was sentenced to ninety days
in jail, a $2000.00 fine and costs, a five-year license suspension, and three
years of community control.
{¶ 16} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, the Supreme Court of Ohio announced the two-step analysis for Pickaway App. No. 13CA8 13
appellate review of felony sentences. First, we “must examine the sentencing
court's compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly
contrary to law.” Kalish at ¶ 4. If the sentence is not clearly and
convincingly contrary to law, we review it for an abuse of discretion. Id.
{¶ 17} Appellant does not argue that her vehicular assault sentence is
clearly and convincingly contrary to law. She cites no failure of the trial
court to comply with any “applicable rules and statutes,” nor do we see any
obvious violation of this requirement. Thus, we conclude her sentence is not
clearly and convincingly contrary to law.
{¶ 18} Next, we must determine whether the trial court abused its
discretion in sentencing Appellant. The term “abuse of discretion” implies
that the court's attitude is arbitrary, unreasonable, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Appellant claims
that the trial court’s sentence was “too harsh,” and that the trial court should
have taken into consideration the fact that Appellant was also sentenced in
the municipal court on a physical control conviction which stemmed from
the same facts and circumstances as the vehicular assault indictment.
{¶ 19} However, the municipal court’s sentencing of Appellant on a
misdemeanor traffic offense has no bearing on the common pleas court’s Pickaway App. No. 13CA8 14
sentencing of Appellant on a felony criminal offense. See State v. Strickler,
4th Dist. Washington No. 04CA28, 2006-Ohio-530, ¶ 27 (“[m]isdemeanor
traffic offenses are not the same offense as vehicular assault.”). Further,
R.C. 2929.14 provided the trial court with the option of imposing a prison
term of up to eighteen months for a fourth degree felony offense, however
the trial court elected not to impose a prison term and instead sentenced
Appellant to only ninety days in jail, which was within its discretion to do.
Next, with respect to Appellant’s five-year license suspension, R.C.
2903.08(C)(2) required that the trial court impose a “class four suspension of
the offender’s driver’s license * * * from the range specified in division
(A)(4) of section 4510.02 of the Revised Code.” R.C. 4510.02 provides for
a definite period of suspension for one to five years. Thus, Appellant’s five-
year license suspension, though a maximum term of suspension, was within
the permissible range.
{¶ 20} Finally, Appellant contends that the trial court abused its
discretion in imposing a fine of $2000.00 and three years of community
control. Contrary to Appellant’s argument, and as noted by the State in its
brief, R.C. 2929.15 through 2929.18 authorizes a range of sanctions other
than imposing a prison term and permits a trial court to choose a
combination of punishments, including community control and financial Pickaway App. No. 13CA8 15
sanctions. For instance, R.C. 2929.15(A)(1) provides that “[t]he duration of
all community control sanctions imposed upon an offender under this
division shall not exceed five years.” Thus, Appellant’s three-year term of
community control was with the permissible range. Further, R.C. 2929.18
governs the imposition of financial sanctions and provides in section
(A)(3)(d) that a fine for a fourth degree felony offense shall not exceed five
thousand dollars. Once again, Appellant’s two thousand dollar fine was
within the permissible range.
{¶ 21} In light of the foregoing, we cannot conclude that the trial
court abused its discretion in sentencing Appellant. As such, Appellant’s
second assignment of error is overruled. Having found no merit in either of
the assignments of error raised by Appellant, we affirm the decision and
sentence of the trial court.
JUDGMENT AFFIRMED. Pickaway App. No. 13CA8 16
Hoover, J., concurring:
{¶22} I concur in the judgment and opinion of the principal opinion
but wish to address appellant’s double jeopardy argument with respect to the
physical control charge.
{¶23} In addition to her two assignments of error, the appellant
presented the following issue for review:
Does the indictment of the Defendant-Appellant, Tandy L.
Trimble, for Vehicular Assault cause undue prejudice to said
Defendant-Appellant, who had previously been convicted and
sentenced for Physical Control of a motor vehicle while under
the influence and also faced the charge of Aggravated
Vehicular Assault F-3, which was dismissed on the grounds of
Double Jeopardy?
{¶24} Prior to being indicted on the vehicular assault charge, the
appellant had already been convicted of the physical control charge. The
vehicular assault charge and the physical control charge both arose out of the
same facts and circumstances as shown in the principal opinion's recitation
of the facts.
{¶25} The elements of physical control are stated in R.C. 4511.194 as
follows: Pickaway App. No. 13CA8 17
"(B) No person shall be in physical control of a vehicle, *** if, at the
time of the physical control, any of the following apply:
(1) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.
(2) The person's whole blood, blood serum or plasma, breath, or urine
contains at least the concentration of alcohol specified in division
(A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code.
(3) Except as provided in division (E) of this section, the person has a
concentration of a listed controlled substance or a listed metabolite of
a controlled substance in the person's whole blood, blood serum or
plasma, or urine that equals or exceeds the concentration specified in
division (A)(1)(j) of section 4511.19 of the Revised Code."
{¶26} The elements of the offense of vehicular assault are stated in
R.C. 2903.08(A)(2)(b) as follows:
(A) No person, while operating or participating in the operation of a
motor vehicle, * * * , shall cause serious physical harm to another
person or another's unborn in any of the following ways:
(1) * * *
(a) * * * Pickaway App. No. 13CA8 18
(b) Recklessly."
{¶27} The trial court in this case then compared the two offenses and
applied the "same elements" test articulated in Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 76 L.Ed. 306 (1932). The trial court found
that the Double Jeopardy Clause of the Fifth Amendment was not violated
based on the two separate charges.
{¶28} I agree with the trial court's analysis. The elements of physical
control and vehicular assault are distinct. Therefore, I do not believe that
appellant was subjected to undue prejudice as a result of being indicted for
vehicular assault when she had previously been convicted and sentenced for
physical control of a motor vehicle while under the influence. The principal
opinion aptly addresses all other arguments propounded by the appellant.
{¶29} Likewise, I would affirm the decision and sentence of the trial
court. Pickaway App. No. 13CA8 19
JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion. Hoover, J: Concurs in Judgment and Opinion with Concurring Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.