[Cite as State v. Trimble,

.]

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,

, 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,

, ¶ 7;

citing State v. Williams, 6th Dist. Wood No. WD-07-079,

.

{¶ 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,

,

,

. These double-jeopardy protections

apply to the states through the Fourteenth Amendment. State v. Tolbert,

,

(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,

, 2004-

Ohio-1807,

, ¶¶ 18-20:

“In determining whether an accused is being successively

prosecuted for the ‘same offense,’ the court in [State v. Best,

,

(1975)] adopted the so-called

‘same elements’ test articulated in Blockburger v. United States

(1932),

,

,

, 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),

,

,

, overruled on other grounds in

State v. Crago (1990),

,

,

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),

,

,

, 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:

“(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:

(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,

. 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.

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,

. 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).

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,

,

,

(12th Dist.). See State v. Murray, 5th Dist. No. 01 CA 00108,

, *2 (May 3, 2002); In re C.A., 8th Dist. No.

93525,

, ¶ 15. See generally State v.

Hohenberger,

,

,

(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

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,

,

, syllabus (1994) (“[j]eopardy does not attach when a trial

court grants a motion to dismiss an indictment.”); see also State v. Baranski,

,

,

.

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,

,

,

, 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,

,

(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,

(“[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) * * *

(2) In one of the following ways:

(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,

,

,

(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.