[Cite as State v. Pope,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27231 : v. : Trial Court Case No. 2016-CR-1095 : KENNETH POPE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 7th day of April, 2017.

...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LARRY J. DENNY, Atty. Reg. No. 0020430, and MICHAEL MILLS, Atty. Reg. No. 0092133, 371 West First Street, Second Floor, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Kenneth Pope, appeals from the decision of the

Montgomery County Court of Common Pleas overruling his motion to dismiss an

indictment charging him with one count of improperly handling a firearm in a motor vehicle

while intoxicated. In support of his appeal, Pope claims that his constitutional protection

against successive prosecutions under the Double Jeopardy Clause prevented the State

from prosecuting him for that offense because he had already been charged and

convicted for operating a vehicle while under the influence of alcohol (“OVI”) in a different

court for the same incident. Specifically, Pope claims that the OVI offense is a lesser

included offense and allied offense of similar import to the improperly handling a firearm

charge. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On April 6, 2016, Pope was involved in a single-vehicle accident in Dayton,

Ohio, when he drove into a cement curb and disabled his vehicle. At the scene of the

accident, responding police officers discovered Pope sitting in the driver’s seat of his

vehicle and detected the odor of alcohol emanating from the vehicle. Pope admitted to

the officers that he had consumed alcohol that evening and submitted to a breathalyzer

test, which revealed his blood alcohol level was over the legal limit. During the

encounter, Pope also admitted that he was in possession of a firearm. The officers

thereafter searched Pope’s vehicle and discovered a loaded firearm underneath the

driver’s seat.

{¶ 3} As a result of that incident, Pope was arrested and charged in the Dayton -3-

Municipal Court with misdemeanor OVI and failure to control violations. In relation to the

same incident, Pope was subsequently indicted in the Montgomery County Court of

Common Pleas for improperly handling a firearm in a motor vehicle while intoxicated in

violation of R.C. 2923.16(D)(1), a felony of the fifth degree.

{¶ 4} While the Montgomery County case was pending, on June 10, 2016, Pope

was convicted in the Dayton Municipal Court for the OVI offense, a first-degree

misdemeanor in violation of R.C. 4511.19(A)(1)(a). Following that conviction, on June

15, 2016, Pope filed a motion to dismiss the Montgomery County indictment on grounds

that his constitutional protection against double jeopardy prohibited the State from

prosecuting him for improperly handling a firearm in a motor vehicle while intoxicated. In

support of that claim, Pope alleged that his prior OVI conviction was a lesser included

offense and allied offense of similar import to the improperly handling a firearm charge.

{¶ 5} On July 5, 2016, the trial court issued a written decision overruling Pope’s

motion to dismiss the indictment. Following that decision, Pope entered a no contest

plea to the indicted charge, which the trial court accepted. After finding Pope guilty, the

trial court sentenced Pope to community control sanctions not to exceed five years.

{¶ 6} Pope now appeals from his conviction, raising one assignment of error for

this court’s review.

Assignment of Error

{¶ 7} Pope’s sole assignment of error is as follows:

THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO DISMISS. -4-

{¶ 8} Under his single assignment of error, Pope contends that the trial court erred

in overruling his motion to dismiss the indictment charging him with improperly handling

a firearm in a motor vehicle while intoxicated. In support of this claim, Pope maintains

that his constitutional protection against double jeopardy should have barred the State

from prosecuting him on the improperly handling a firearm offense because he claims

that his prior OVI conviction in the Dayton Municipal Court is a lesser included offense.

Pope also claims that the double jeopardy protection prohibits the State from prosecuting

him for both the OVI and improperly handling a firearm offenses because they are allied

offenses of similar import. We disagree with both of Pope’s arguments.

Standard of Review and Double Jeopardy

{¶ 9} “We conduct a de novo review of a denial of a motion to dismiss an indictment

on the grounds of double jeopardy.” (Citations omitted.) State v. Gunnell, 2d Dist. Clark

No. 09-CA-0013,

, ¶ 54.

{¶ 10} “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.

Ruff,

,

,

, quoting North Carolina v.

Pearce,

,

,

(1969), overruled on other

grounds, Alabama v. Smith,

,

,

(1989). In

this case, Pope’s assignment of error only implicates the double jeopardy protection

against successive prosecutions for the same offense following a conviction.

{¶ 11} The Supreme Court of Ohio has held that in determining whether a -5-

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,

,

,

(1932). State v.

Zima,

,

,

. Accord State v.

Matthews, 2d Dist. Montgomery No. 23953,

. Under Blockburger,

“ ‘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 exempt the

defendant from prosecution and punishment under the other.’ ”

, quoting

State v. Best,

,

(1975), paragraph three of the syllabus.

{¶ 12} Therefore, the test in Blockburger focuses upon the elements of the two

statutory provisions, not upon the evidence proffered in a given case, and determines

whether each offense contains an element not contained in the other. Id. at ¶ 20. If

there is no such element, the offenses are considered to be the same offense and

“ ‘double jeopardy bars additional punishment and successive prosecution.’ ” Id., quoting

United States v. Dixon,

,

,

(1993).

Lesser Included Offenses

{¶ 13} As previously noted, Pope claims that the double jeopardy protection

against successive prosecutions prohibits the State from prosecuting him for the

improperly handling a firearm offense on grounds that his prior OVI is a lesser included

offense to that charge. -6-

{¶ 14} It is well established that the test in Blockburger “applies to bar successive

prosecutions for greater and lesser included offenses[.]” Zima,

, 2004-

Ohio-1807,

. Accord State v. Jordan, 10th Dist. Franklin Nos.

14AP-978, 14AP-979,

. See also State v. Morton, 2d Dist.

Montgomery No. 20358,

(“the successive prosecution branch of the

Double Jeopardy Clause ‘prohibits the state from trying a defendant for a greater offense

after a conviction of a lesser included offense’ and from twice trying a defendant for the

same offense”), quoting State v. Bickerstaff,

,

(1984);

State v. Sturgell, 2d Dist. Darke No. 1751,

, ¶ 10 (a “[c]onviction on a

lesser included offense generally bars subsequent prosecution for a greater offense”),

quoting Brown v. Ohio,

,

,

(1977).

{¶ 15} “An offense may be a lesser included offense of another if (i) the offense

carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily

defined, * * * be committed without the lesser offense, as statutorily defined, also being

committed; and (iii) some element of the greater offense is not required to prove the

commission of the lesser offense.” (Citation omitted.) State v. Deem,

,

(1988), paragraph three of the syllabus, as modified by State v.

Evans,

,

,

(deleting the word

“ever” in the second part of the test announced in Deem). Accord State v. Frazier, 2d

Dist. Montgomery Nos. 26495, 26496,

.

{¶ 16} In applying the foregoing test in Deem, Pope contends that his

misdemeanor OVI in violation of R.C. 4511.19(A)(1)(a) is a lesser included offense to a

felony violation of R.C. 2923.16(D)(1) because the OVI offense carries a lesser penalty, -7-

is always committed when an individual violates R.C. 2923.16(D)(1), and does not include

the element of having a firearm. We, however, disagree with Pope’s claim that the OVI

offense is always committed when an individual violates R.C. 2923.16(D)(1).

{¶ 17} To violate R.C. 2923.16(D)(1), an individual must “knowingly transport or

have a loaded handgun in a motor vehicle” when “at the time of that transportation or

possession” the individual “is under the influence of alcohol, a drug of abuse, or a

combination of them.” (Emphasis added.) Therefore, an individual can violate R.C.

2923.16(D)(1) simply by having/possessing a loaded firearm in a motor vehicle while

intoxicated; movement of the vehicle is not required.

{¶ 18} In contrast, to commit an OVI offense in violation of R.C. 4511.19(A)(1)(a),

an individual must “operate any vehicle, streetcar, or trackless trolley within this state”

when “at the time of the operation” the individual “is under the influence of alcohol, a drug

of abuse, or a combination of them.” (Emphasis added.) The term “operate” is

statutorily defined as “to cause or have caused movement of a vehicle, streetcar, or

trackless trolley.” R.C. 4511.01(HHH).

{¶ 19} Because the plain language of R.C. 2923.16(D)(1) does not necessitate

movement of the vehicle, the improperly handling a firearm offense at issue can be

committed without committing an OVI offense in violation of R.C. 4511.19(A)(1)(a), which

requires the offender “to cause or have caused movement of a vehicle.”

{¶ 20} Pope nevertheless claims that since he drove his vehicle, only the

“transport” element in R.C. 2923.16(D)(1) applies to him, and thus advocates for this court

to interpret R.C. 2923.16(D)(1) in a manner that creates two separate classes of

offenders: (1) drivers who transport a loaded firearm; and (2) passengers who merely -8-

have/possess a loaded firearm. Pope further argues that the “transport” element in R.C.

2923.16(D)(1) is synonymous with the “operate” element in R.C. 4511.19(A)(1)(a). As a

result, he claims he could not have committed a violation of R.C. 2923.16(D)(1) without

also committing an OVI offense in violation of R.C. 4511.19(A)(1)(a).

{¶ 21} Pope does not, however, cite any authority supporting his proposition that

the “transport” element in R.C. 2923.16(D)(1) applies solely to drivers and the

“possession” element to passengers. The plain language of R.C. 2923.16(D)(1) does

not support such an interpretation, as the statute does not distinguish between drivers

and passengers. Rather, the statute simply states that “[n]o person shall knowingly

transport or have a loaded handgun in a motor vehicle * * * [.]” (Emphasis added.) R.C.

2923.16(D)(1). See also State v. Dodson, 10th Dist. Franklin No. 10AP-603, 2011-Ohio-

1092 (an appellant seated in the driver’s compartment of his vehicle was found to have

violated R.C. 2923.16 for “possessing” a firearm that was discovered underneath the

driver’s seat).

{¶ 22} We also disagree with Pope’s claim that the terms “transport” and “operate”

are interchangeable. “Where the legislature uses different terms between statutes, it

should be presumed that the legislature intended different meanings.” State v. Pittman,

,

, ¶ 21 (3d Dist.), citing State ex rel. Fink v. Registrar,

Ohio Bur. of Motor Vehicles, 12th Dist. Butler No. CA98-02-021,

, *2 at

fn. 2 (Sept. 14, 1998), citing Metro. Securities Co. v. Warren State Bank,

,

(1927). See also State v. Herbert,

,

(1976) (“the use of different language [in statutes] gives rise to a presumption that

different meanings were intended”); Farmer v. Berry,

,

, -9-

¶ 15 (8th Dist.) (“we will ‘presume[ ] that different results were intended’ when the General

Assembly ‘used certain language in the one instance and wholly different language in the

other’ ”), quoting Metro Securities Co. at 76.

{¶ 23} Although not defined by statute, the term “transport” is generally defined as

“to carry or convey (a thing) from one place to another.” Black’s Law Dictionary (10th

Ed. 2014). That definition is different from the statutory definition of “operate.” Unlike

the definition of “operate,” the definition of “transport” does not necessitate causing the

movement of a motor vehicle. The fact that the legislature chose to use these different

words in each statute implies that it did not mean for them to be used interchangeably as

Pope claims.

{¶ 24} In support of his interchangeability argument, Pope cites to Columbus v.

Freeman,

,

,

(10th Dist.) for the

proposition that a passenger can be convicted for OVI, thus implying that one can be

convicted of the offense without necessarily causing movement of a vehicle. The

passenger in Freeman, however, was convicted of operating a vehicle under suspension

and reckless operation because he grabbed the steering wheel during a fight with the

driver and caused the vehicle to crash into a ditch. Id. at ¶ 1-2. The court in Freeman

analyzed the definition of “operate” in R.C. 4511.01(HHH) and applied it to the reckless

operation charge and held that the “definition can encompass a person in the vehicle

whose conduct causes movement of the vehicle by grabbing the steering wheel.” Id. at

¶ 17. Because the passenger was found to have operated the vehicle within the meaning

of R.C. 4511.01(HHH), Freeman does not stand for the proposition that Pope attempts to

establish. -10-

{¶ 25} In this court’s view, Pope violated R.C. 2923.16(D)(1) and committed the

improperly handling a firearm offense the moment he entered his vehicle (which he knew

contained a loaded firearm under the driver’s seat) while under the influence of alcohol.

His actions satisfy the “possession” element of R.C. 2923.16(D)(1), as “possession can

be either actual or constructive” and “ ‘[a] person has possession when he knows that he

has the object on or about his (person) (property) or (places it where it is accessible to

his use or direction) and he has the ability to direct or control its use.’ ” State v.

Hancovsky,

,

, ¶ 73-74 (11th Dist.), citing State v.

Campbell, 11th Dist. Ashtabula No. 2014-A-0005,

, ¶ 23 and quoting

Ohio Jury Instructions, CR Section 417.21(3). Had Pope been stopped by the police

before having the chance to operate his vehicle, he would have still satisfied all elements

of R.C. 2923.16(D)(1), but would not have satisfied all the elements for OVI under R.C.

4511.19(A)(1)(a). In other words, he could have committed the greater offense of

improperly handling a firearm in a motor vehicle while intoxicated without also committing

the OVI offense.

{¶ 26} Therefore, under the test announced in Deem,

,

, Pope’s conviction for OVI is not a lesser included offense. As a result, the

double jeopardy protection against successive prosecutions did not prohibit the State

from prosecuting Pope for the improperly handling a firearm offense after he was

convicted of the OVI offense.

{¶ 27} For the foregoing reasons, Pope’s lesser-included-offense claim is

overruled. -11-

Allied Offenses

{¶ 28} Pope also contends that pursuant to Ohio’s allied offense statute, R.C.

2941.25, his conviction for OVI in the Dayton Municipal Court and the improperly handling

a firearm offense in this case are allied offenses of similar import. Based on that

conclusion, Pope claims that the State was prohibited from prosecuting him on the

improperly handling a firearm offense after he was convicted for the OVI, as he believes

it constituted a successive prosecution in violation of the Double Jeopardy Clause.

{¶ 29} Initially, we note that R.C. 2941.25 codifies the double jeopardy protection

against multiple punishments for the same offense. State v. Underwood,

,

,

, ¶ 23. Multiple courts, including the Supreme Court

of Ohio, have found that R.C. 2941.25 is inapplicable to double jeopardy claims involving

the protection against successive prosecutions on grounds that successive prosecution

cases are controlled by the Blockburger test. See, e.g., Zima,

, 2004-

Ohio-1807,

(“since the present case involves only the issue of

successive prosecutions, it is not controlled by R.C. 2941.25”); State v. Bridges, 10th Dist.

Franklin No. 14AP-602,

(applying the Blockburger test as

opposed to R.C. 2941.25 after noting that the appeal concerned the issue of successive

prosecutions rather than multiple punishments); State v. Workman, 4th Dist. Athens No.

14CA25,

, ¶ 13 (“[t]he R.C. 2941.25 multiple count statute and allied

offense analysis do not apply when examining a double jeopardy claim based upon a

successive prosecution”); State v. Woodruff, 3d Dist. Logan No. 8-14-21, 2015-Ohio-

1342, ¶ 9 (“R.C. 2941.25 and Johnson are inapplicable as the present case involves

successive prosecutions in separate trials rather than cumulative punishments”); State v. -12-

Thompson, 1st Dist. Hamilton No. C-130053,

(“successive-

prosecution cases are controlled by Blockburger, and not by R.C. 2941.25”); State v.

Lamp, 9th Dist. Summit No. 26602,

(“the standard for determining

whether a successive prosecution violates the double jeopardy clause is separate and

distinct from the allied offenses standard set forth in R.C. 2941.25”); Univ. of Cincinnati v.

Tuttle, 1st Dist. Hamilton No. C-080357,

, ¶ 12 (“[b]ecause this case

concerns only the issue of successive prosecution, it is not controlled by R.C. 2941.25”).

{¶ 30} However, even if we did apply R.C. 2941.25 to the instant case, Pope’s

allied offense argument still fails. R.C. 2941.25 provides that:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 31} “ ‘[W]hen determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above will permit -13-

separate convictions. The conduct, the animus, and the import must all be considered.’ ”

State v. Earley,

,

,

, ¶ 12, quoting Ruff,

,

,

.

{¶ 32} As to the question of import and significance, “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” (Emphasis added.) Ruff at ¶ 23.

{¶ 33} In Earley, the Supreme Court of Ohio concluded that felony aggravated

vehicular assault under R.C. 2903.08(A)(1)(a) and a misdemeanor OVI under R.C.

4511.19(A)(1)(a) were offenses of dissimilar import and significance based, in part, on

the difference in the resulting harm. Specifically, the court stated that:

[A]ggravated vehicular assault necessarily involves causing serious

physical harm to another person. A first-degree-misdemeanor violation of

R.C. 4511.19(A)(1)(a), on the other hand, occurs any time an individual

drives under the influence of alcohol or drugs, and one who does so

commits this offense regardless of any subsequent consequences that

occur due to the impaired driver’s actions. There is a legitimate justification

for criminalizing each of these offenses separately, and R.C. 2941.25

permits separate convictions for both pursuant to the test set forth in Ruff.

Id. at ¶ 15.

{¶ 34} In this case, the resulting harm from Pope’s OVI conviction is the risk of

danger he posed to himself, others, or property through operating his vehicle while

intoxicated. In other words, the harm flows from him operating the vehicle in an -14-

intoxicated state. On the other hand, the offense of improperly handling a firearm in a

motor vehicle while intoxicated involves the separate danger of Pope causing harm to

himself, others, or property with a firearm while inside a motor vehicle. For that offense,

the resulting harm flows from Pope possessing/transporting a firearm in an intoxicated

state, not simply from operating a vehicle. As previously noted, it is immaterial whether

Pope operated the vehicle for purposes of the improperly handling a firearm offense, as

the resulting harm is the increased risk that Pope would use the firearm inside his car

while intoxicated.

{¶ 35} While public safety is admittedly a concern for both offenses, the firearm

component of the improper handling statute renders the harm associated with it unique

from the harm associated with a conviction for OVI. Therefore, the resulting harm is

separate and identifiable for each offense and warrants separate criminalization. In light

of this, we conclude that the offenses at issue were dissimilar in significance and import

under the test in Ruff and are not allied offenses of similar import.

{¶ 36} For the foregoing reasons, Pope’s allied-offense claim is overruled.

{¶ 37} Because all of Pope’s claims lack merit, his single assignment of error is

overruled.

Conclusion

{¶ 38} Having overruled Pope’s sole assignment of error, the judgment of the trial

court is affirmed.

.............

HALL, P.J. and TUCKER, J., concur. -15-

Copies mailed to:

Mathias H. Heck, Jr. Michael J. Scarpelli Larry J. Denny Michael Mills Hon. Mary Katherine Huffman