[Cite as State v. Bridges, 2015-Ohio-4480.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                     No. 14AP-602
v.                                                  :           (C.P.C. No. 12CR-12-6437)

Tony Bridges, Jr.,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                     Rendered on October 29, 2015


                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for
                 appellee.

                 Yeura Venters, Public Defender, and Timothy E. Pierce, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, Tony Bridges, Jr. ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas sentencing him to five years of
community control pursuant to his plea of no contest to two counts of endangering children
and one count of felonious assault. Because we conclude that the trial court did not err by
denying appellant's motion to dismiss, we affirm.
        {¶ 2} On December 10, 2012, appellant was charged in the Franklin County
Municipal Court with one count of domestic violence, a first-degree misdemeanor in
violation of R.C. 2919.25(A), and one count of assault, a first-degree misdemeanor in
violation of R.C. 2903.13(A). The complaints alleged that, earlier the same day, appellant
struck the victim, his seven-year-old son, multiple times in the neck, chest, back, and arms
with a belt, resulting in dark bruises, welts, and broken skin. On December 19, 2012,
No. 14AP-602                                                                               2

appellant, represented by counsel, pled guilty to the charge of domestic violence, and the
municipal court dismissed the assault charge.
       {¶ 3} The following day, on December 20, 2012, the Franklin County Grand Jury
issued an indictment charging appellant with two counts of endangering children, both
second-degree felonies in violation of R.C. 2919.22, and one count of felonious assault, a
second-degree felony in violation of R.C. 2903.11 ("the felony indictment"). Each of the
charges in the felony indictment related to the harm appellant inflicted on his son during
the December 10, 2012, incident. Appellant moved to dismiss the felony indictment,
asserting that he could not be prosecuted for additional charges arising from the events of
December 10, 2012, because the state had not expressly reserved the right to bring further
charges as part of the plea agreement under which he pled guilty to domestic violence in
the municipal court. The state opposed the motion to dismiss, arguing that appellant failed
to establish that his guilty plea in the municipal court proceeding was pursuant to a
negotiated plea agreement and that, even if it was, the county prosecutor was not a party to
any plea agreement. Following a hearing on the motion to dismiss and supplemental
briefing from the parties, the trial court denied appellant's motion, concluding that there
was no negotiated plea agreement that would preclude future felony charges because the
municipal court prosecutor lacked authority to enter into such an agreement.
       {¶ 4} Appellant then entered a plea of no contest to the three charges in the felony
indictment. At the plea hearing, appellant asserted that he was entering the no-contest plea
for purposes of appealing the trial court's decision denying his motion to dismiss. The trial
court sentenced appellant to a five-year term of community control.
       {¶ 5} Appellant appeals from the trial court's decision, assigning two errors for this
court's review:
              Appellant's First Assignment of Error: The trial court
              erred in overruling Defendant-Appellant's motion to dismiss
              which violated his right to due process of law as memorialized
              in the Fifth and Fourteenth Amendments of the United States
              Constitution and Article I, Sections 1 and 16 of the Ohio
              Constitution.

              Appellant's Second Assignment of Error: The trial court
              committed plain error in violation of R.C. 2941.25 ("Multiple
              counts") and the Double Jeopardy Clauses of the Fifth and
              Fourteenth Amendments of the United States Constitution and
No. 14AP-602                                                                                 3

              Article I, Section 10 of the Ohio Constitution by failing to
              dismiss the subsequently-issued felony indictment against the
              Defendant-Appellant involving two counts of child
              endangering and one count of felonious assault after the State
              had previously elected to prosecute him for the allied offense of
              domestic violence in the Franklin County Municipal Court and
              secured his conviction and punishment there.

       {¶ 6} In his first assignment of error, appellant asserts that the trial court erred by
denying his motion to dismiss the felony indictment. Appellant argues that he entered into
a negotiated guilty plea in municipal court, which barred further prosecution for any
charges related to the same event. The trial court concluded that the municipal court
prosecutor lacked authority to enter a negotiated plea agreement providing that the
Franklin County prosecutor's office would not pursue charges against appellant and denied
the motion to dismiss.
       {¶ 7} We review de novo a trial court's ruling on a motion to dismiss criminal
charges. State v. Romage, 10th Dist. No. 11AP-822, 2012-Ohio-3381, ¶ 6, citing State v.
Walker, 10th Dist. No. 06AP-810, 2007-Ohio-4666, ¶ 9-10. See also State v. Wilson, 10th
Dist. No. 13AP-205, 2013-Ohio-4799, ¶ 4 ("We review a trial court's legal conclusions in
ruling on a pretrial motion to dismiss criminal charges de novo."). Under the de novo
standard, we afford no deference to the trial court's decision and conduct an independent
review of the record. Romage at ¶ 6.
       {¶ 8} The Supreme Court of Ohio has recognized that "[p]lea agreements are an
essential and necessary part of the administration of justice." State v. Carpenter, 68 Ohio
St.3d 59, 61 (1993). A plea bargain is, in effect, a contract, and principles of contract law
apply to the interpretation and enforcement of plea agreements. State v. Dye, 127 Ohio
St.3d 357, 2010-Ohio-5728, ¶ 21; State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 50.
However, "[b]ecause the defendant's constitutional rights are at stake in the plea process,
the concerns underlying a plea agreement differ from and go beyond those of commercial
contract law." Dye at ¶ 21, citing Carpenter at 61.
       {¶ 9} In Carpenter, the Supreme Court held that the state could not indict a
defendant for murder after the trial court accepted a negotiated guilty plea to a lesser
offense when the victim later died of injuries sustained in the crime, unless the state had
expressly reserved the right to file additional charges on the record at the time of the guilty
No. 14AP-602                                                                                 4

plea. Carpenter at syllabus. Subsequently, in Dye, the Supreme Court reiterated that, where
a defendant had entered into a negotiated guilty plea to the charge of aggravated vehicular
assault, the state could not later prosecute him for aggravated vehicular homicide following
the victim's death because the state had not expressly reserved the right to bring a homicide
charge if the victim died. Id. at ¶ 28. Appellant argues that, under the principles articulated
in Carpenter and subsequent decisions, his negotiated guilty plea in municipal court barred
the subsequent indictment from the Franklin County Grand Jury on felony charges arising
from the same incident.
       {¶ 10} The state asserts, in part, that appellant has failed to demonstrate that his
guilty plea in the municipal court proceeding was a negotiated guilty plea within the
meaning of Carpenter. In order to establish the existence of a negotiated guilty plea, the
record must demonstrate the existence of the elements of a contract. Dye at ¶ 23. The state
argues that the only material submitted to the trial court regarding the municipal court
proceeding was a transcript, which failed to clearly indicate dismissal of any charges. The
state notes that this court granted appellant's motion to supplement the record but argues
that this court should not consider the copies of the complaints and sentencing entry
provided under that motion because they were not part of the trial court's record. The state
also argues that, even if there was a negotiated guilty plea, the trial court correctly
concluded that the municipal court prosecutor lacked authority to enter into a plea
agreement that would be binding on the Franklin County prosecutor.
       {¶ 11} Assuming, without deciding, that appellant's plea in the municipal court was
a negotiated guilty plea, we conclude that, under the facts of this case, it did not bar the
subsequent felony indictment. The basis of the rule developed in Carpenter and subsequent
cases is that "effect must be given to the intention of the state and the defendant in their
plea bargain, and courts should enforce what they perceive to be the terms of the original
agreement." Dye at ¶ 22. Thus, a negotiated guilty plea " 'bars successive prosecutions
where the defendant would reasonably believe that his or her plea would bar further
prosecutions for any greater offense related to the same factual scenario.' " (Emphasis
added.) State v. Church, 10th Dist. No. 12AP-34, 2012-Ohio-5663, ¶ 8, quoting State v.
Edwards, 8th Dist. No. 94568, 2011-Ohio-95, ¶ 23, citing Dye. In this case, given the
circumstances surrounding appellant's guilty plea in the municipal court proceeding,
No. 14AP-602                                                                                   5

appellant has failed to demonstrate that it was reasonable for him to believe that his plea
would bar subsequent prosecution for greater offenses related to his actions.
       {¶ 12} In Carpenter, the defendant, Carpenter, committed a stabbing and was
indicted on one count of felonious assault. Following negotiations with the prosecution, in
January 1985, Carpenter entered a guilty plea to the lesser-included offense of attempted
felonious assault. At the time of the guilty plea, the prosecution was aware that the victim
was in a coma and would likely die, but the plea agreement did not refer to the possibility
of additional prosecution if the victim died. In March 1986, the victim died. Sometime after
September 1987, Carpenter was released from prison after serving a portion of his sentence
on the attempted felonious assault charge. In January 1988, Carpenter was charged with
the murder of the stabbing victim. He filed a motion to dismiss the indictment, arguing that
further prosecution was prohibited under the terms of his 1985 plea agreement. The trial
court granted that motion, and the court of appeals reversed. Carpenter at 60.
       {¶ 13} On appeal, the Supreme Court of Ohio affirmed the dismissal of the
indictment, holding that, if the state wished to reserve the right to bring further charges
against Carpenter in the event of the victim's death, it was required to make that reservation
a part of the record. Id. at 62. The court concluded that Carpenter had a "reasonable and
justified" expectation that, by pleading guilty, he was "terminating the incident and could
not be called on to account further on any charges regarding [the] incident" and that the
prosecutor was aware of this expectation. Id. See also Dye at ¶ 26 (holding that the
defendant had a reasonable expectation that guilty plea would preclude further prosecution
because both the defendant and the prosecution were aware of the severity of the victim's
injuries and the potential that the victim would die as a result of those injuries, but the state
failed to reserve the right to bring further charges if the victim died); State v. Harrison, 122
Ohio St.3d 512, 2009-Ohio-3547, ¶ 52-60 (holding that the defendant had a reasonable
expectation that guilty plea would preclude further prosecution because the defendant
signed a negotiated plea agreement on the same day the bill of information was filed,
agreeing to plead guilty to all counts set forth in bill of information, and because both the
prosecutor and the court that accepted the guilty plea had jurisdiction over all of the actual
and potential charges).
No. 14AP-602                                                                                6

       {¶ 14} By contrast, in State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, the
Supreme Court of Ohio held that the defendant, Zima, failed to show why her belief that a
guilty plea would prevent further prosecution was reasonable. Id. at ¶ 14. On July 3, 2001,
Zima struck an oncoming motorcycle with her car. On July 6, 2001, she was charged in the
Cleveland Municipal Court with driving under the influence, driving under suspension,
failure to yield, and failure to wear a seatbelt. Id. at ¶ 1. Later, on August 23, 2001, a
Cuyahoga County Grand Jury indicted Zima on charges of aggravated vehicular assault
based on driving under the influence, aggravated vehicular assault based on driving
recklessly, and driving under the influence. Id. On August 27, 2001, Zima entered a no-
contest plea in municipal court to the charge of driving under the influence, and the
prosecution dismissed the three remaining municipal court charges. At the time of her no-
contest plea, Zima was not aware of the indictment from the Cuyahoga County Grand Jury.
Id. at ¶ 2. After sentencing on the municipal court charges, Zima moved to dismiss the
indictment from the Cuyahoga County Grand Jury. The trial court granted Zima's motion
to dismiss. Id. at ¶ 3.
       {¶ 15} The Supreme Court of Ohio distinguished Zima's case from Carpenter,
noting that, when Zima pled guilty in the municipal court, she had already been indicted on
felony charges by the Cuyahoga County Grand Jury. Id. at ¶ 14. Importantly, the court
noted that "[n]either the municipal court nor the city prosecutor had the authority to
dismiss those pending felony charges." Id. While acknowledging that Zima was apparently
not aware of the felony indictments when she pled guilty, the court stated that a " 'defendant
should be aware that a plea taken before a municipal judge with limited criminal
jurisdiction might not dispose of the matter fully.' " (Internal citation omitted.) Id. The
Zima decision reasoned that, in Carpenter, the defendant's expectation that the guilty plea
would terminate further prosecution was "inherently justified because the prosecutor and
the court had jurisdiction over all the charges, both actual and potential, and because the
negotiated guilty plea included the dismissal of all pending charges." Zima at ¶ 12. "In the
absence of these or equivalent circumstances, however, it would be exceedingly difficult to
sustain a defendant's belief that no further charges will be brought or prosecuted." Id. See
also Cleveland v. Evans, 8th Dist. No. 100721, 2014-Ohio-4567, ¶ 35 (holding that the
defendant's belief that his guilty plea would dispose of all charges was not reasonable when
No. 14AP-602                                                                                  7

the defendant pled no contest to driving under a suspended license, but plea did not address
operating a vehicle while intoxicated charges, and when, at the time of the plea, a common
pleas case number had been assigned for operating a vehicle while intoxicated charges and
grand jury proceedings were pending); State v. Sims, 9th Dist. No. 22677, 2006-Ohio-2415,
¶ 24 (holding that the defendant's belief that her guilty plea to three misdemeanor charges
would prevent further prosecution on felony charges was not reasonable in part because "a
municipal court does not have jurisdiction over felony offenses * * *, and a city prosecutor
does not have the authority to handle the final disposition of felony cases").
       {¶ 16} In the present case, the transcript of the municipal court proceeding at which
appellant pled guilty indicates that appellant was aware of the potential for felony charges
due to the severity of the victim's injuries. In explaining the case to the court, the municipal
court prosecutor offered the following statement:
              MR. BENNINGTON: Your Honor, this case is set for pretrial
              today. This is also a case that is on track to be indicted as a
              felony due to the severity of the harm that was inflicted here. I
              do believe the defendant is pleading today to avoid that felony.
              It actually should have been indicted last week and something
              happened and it didn't get indicted. But I'm not prepared to
              dismiss, to go forward with the indictment, so we are making
              an offer of just maximum jail of 180 days in jail on this. I think
              it's appropriate given the severity of the injuries.

(Dec. 19, 2012 Municipal Ct. Tr. 2-3.) After a brief discussion of appellant's jail-time credit
and ability to pay fines or costs, the municipal court imposed a sentence of 180 days'
imprisonment, with 10 days of jail-time credit, and stated that "[appellant] is to continue
to do the 170 until somehow or other the indictment of the felony comes about." (Municipal
Ct. Tr. 3.) At the prompting of the municipal court prosecutor, the court then verified that
appellant intended to plead guilty, to which appellant responded "Yes, Your Honor, I'm
pleading guilty to it." (Municipal Ct. Tr. 4.)
       {¶ 17} Although the municipal court prosecutor stated that he believed appellant
was pleading guilty to avoid a felony charge, there was no indication that he made any
assurances to appellant that the guilty plea would preclude further prosecution. Moreover,
despite the prosecutor's unclear statement of "I'm not prepared to dismiss, to go forward
with the indictment," we note that, in imposing the sentence, the municipal court judge
indicated appellant was to serve his sentence until the indictment of the felony was issued.
No. 14AP-602                                                                                  8

(Municipal Ct. Tr. 4.) If appellant, who was represented by counsel at the municipal court
hearing, believed that his guilty plea would prevent further prosecution, the comments
from both the prosecutor and the judge should have placed him on notice that his belief
might be mistaken. At the very least, appellant or his counsel should have sought
clarification of the effect of the guilty plea. It is noteworthy that appellant did not formally
enter his guilty plea until after these statements by the prosecutor and the judge.
       {¶ 18} Appellant argues that his case is similar to this court's decision in Church,
which held that the defendant's guilty plea prohibited further prosecution. In Church, the
defendant, Church, was charged in municipal court on March 5, 2010, with one count of
possession of a controlled substance and one count of failure to use a crosswalk. Id. at ¶ 2.
On March 31, 2010, Church entered into a negotiated plea providing that he would plead
guilty to the crosswalk violation in exchange for dismissal of the drug possession charge.
Id. Subsequently, on May 12, 2010, Church was indicted in the Franklin County Court of
Common Pleas on one count of trafficking in marijuana. Id. at ¶ 3. The marijuana-
trafficking charge was based on the same incident that gave rise to the municipal court
proceeding. Id. at ¶ 15. He filed a motion to dismiss, arguing that the prosecution violated
the Double Jeopardy Clause. Id. at ¶ 3. The trial court denied the motion to dismiss, and
Church entered a no-contest plea. On appeal, this court held that, because the state did not
expressly reserve the right to bring future charges, Church's negotiated plea barred
prosecution on the subsequent indictment. The court concluded that Church "had a
reasonable expectation, based upon the negotiated plea agreement entered in the
municipal court, that he would not be subject to more serious drug charges arising out of
the incident." Id. at ¶ 17.
       {¶ 19} We conclude that there are several important distinctions between Church
and the present case. In Church, nearly six weeks passed between the guilty plea and the
subsequent indictment; whereas, in this case, the felony indictment was issued on
December 20, 2012, only one day after appellant entered his guilty plea in the municipal
court proceeding. Moreover, the Church decision does not suggest that there was any
discussion of possible felony charges at the municipal court plea hearing. By contrast, in
this case, the statements by the municipal court prosecutor and judge indicated that felony
proceedings were under consideration and, in fact, that the case was "on track" to lead to a
No. 14AP-602                                                                                                     9

felony indictment. As explained above, these comments signaled that felony prosecution
was possible and undermine appellant's claim that he believed his plea would preclude
further prosecution. This case is more analogous to the Zima decision where the defendant
could not reasonably rely on an implied representation that no further charges would result.
See Zima at ¶ 14.
        {¶ 20} Appellant has failed to articulate circumstances demonstrating why his
asserted belief that his guilty plea would prevent further prosecution was reasonable. Id.
Therefore, we conclude that the trial court did not err by denying appellant's motion to
dismiss, albeit for a different reason than the one articulated by the trial court. See
Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284 (1944) ("By repeated decisions
of this court it is the definitively established law of this state that where the judgment is
correct, a reviewing court is not authorized to reverse such judgment merely because
erroneous reasons were assigned as the basis thereof."); Newcomb v. Dredge, 105 Ohio
App. 417, 424 (2d Dist.1957) ("It is the duty of the reviewing court to affirm the judgment
if it can be supported on any theory, although a different theory from that of the trial
court."); Harrod v. Travelers Property Cas., 10th Dist. No. 02AP-1181, 2003-Ohio-7229, ¶
32 ("[W]e therefore affirm the judgment of the Franklin County Court of Common Pleas,
although we affirm for different reasons.").
        {¶ 21} Accordingly, we overrule appellant's first assignment of error.
        {¶ 22} Appellant asserts in his second assignment of error that the trial court
committed plain error by denying his motion to dismiss because the felony indictment
violated the Double Jeopardy Clause of the United States Constitution and Article I, Section
10 of the Ohio Constitution. Appellant argues that the charges in the felony indictment were
allied offenses of similar import to the domestic violence charge to which he pled guilty in
the municipal court proceeding.1 Appellant contends that, because the prohibition on
multiple punishments for allied offenses is derived from the protection against double
jeopardy, his subsequent prosecution for allied offenses violated the Double Jeopardy
Clause.


1 In his brief on appeal and reply brief, appellant argues for application of the allied-offenses test set forth in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. We note that, subsequent to appellant's filings, the
Supreme Court of Ohio issued State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, modifying the test for allied
offenses of similar import.
No. 14AP-602                                                                                10

       {¶ 23} The state claims that appellant waived this argument by failing to raise it in
the court below. However, under Crim.R. 52(B), "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." See State v. Toyloy, 10th Dist. No. 14AP-463, 2015-Ohio-1618, ¶ 19. "To constitute
plain error, the error must be obvious, on the record, palpable, and fundamental such that
it should have been apparent to the trial court without objection." State v. Gullick, 10th
Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3. Appellant appears to concede that he has waived
all but plain error with respect to this argument by asserting that the trial court committed
plain error in his statement of the second assignment of error. Therefore, we apply the
plain-error standard in our review of this issue.
       {¶ 24} The Double Jeopardy Clause of the United States Constitution provides that
no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."
United States Constitution, Amendment V. This protection applies to the states through the
Fourteenth Amendment to the United States Constitution. State v. Brown, 119 Ohio St.3d
447, 2008-Ohio-4569, ¶ 10. The Ohio Constitution similarly provides that "[n]o person
shall be twice put in jeopardy for the same offense." Ohio Constitution, Article I, Section 10.
Because the protection afforded by the two clauses is coextensive, our analysis will focus on
the Double Jeopardy Clause of the United States Constitution. See State v. Martello, 97
Ohio St.3d 398, 2002-Ohio-6661, ¶ 7 ("The protections afforded by the two Double
Jeopardy Clauses are coextensive.").
       {¶ 25} The Double Jeopardy Clause protects against (1) a second prosecution for the
same offense following acquittal, (2) a second prosecution for the same offense following
conviction, and (3) multiple punishments for the same offense. Brown at ¶ 10. Appellant is
correct that the General Assembly has codified the Double Jeopardy Clause protection
against multiple punishments through the allied-offenses statute. See State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, ¶ 12; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-
1, ¶ 23 ("R.C. 2941.25 codifies the protections of the Double Jepoardy Clause of the Fifth
Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution, which prohibits multiple punishments for the same offense."). However, this
case involves an issue of successive prosecution, rather than multiple punishments.
No. 14AP-602                                                                                                  11

        {¶ 26} The Supreme Court of Ohio has held that, in determining whether a
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, 284 U.S. 299 (1932). Zima at ¶ 18. See also State v. Volpe,
10th Dist. No. 06AP-1153, 2008-Ohio-1678, ¶ 64 ("Zima involved a case of successive
prosecutions, the permissibility of which is determined by the test articulated in
Blockburger."). Under the Blockburger test, the court considers the elements of the two
statutory provisions, "not upon the evidence proffered in a given case" to establish those
elements, and determines whether each offense contains an element not contained in the
other. Zima at ¶ 20. See also Ruff at ¶ 37 (French, J., concurring in judgment only) ("The
Blockburger rule, also known as a same-elements test, focuses on the statutory elements of
the offense and not the particular facts of the case or the proof offered to establish the
crimes." (Internal citations omitted.)). If not, the two offenses are considered the "same
offense" for purposes of the Double Jeopardy Clause, and successive prosecution is barred.
Zima at ¶ 20, citing United States v. Dixon, 509 U.S. 688, 696 (1993).2

2 In arguing against application of the Blockburger test, appellant cites to language from the United States
Supreme Court providing an exception to Blockburger in certain circumstances. (Appellant's Brief at 58-60,
citing State v. DeLong, 70 Ohio App.3d 402 (10th Dist.1990), which cited Grady v. Corbin, 495 U.S. 508, 516-
21 (1990)); (Reply Brief at 16-17, citing Brown v. Ohio, 432 U.S. 161 (1977)). This exception was most clearly
set forth in the Brown decision, wherein the court stated: "Even if two offenses are sufficiently different to
permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances
where the second prosecution requires the relitigation of factual issues already resolved by the first." Brown
at 166, fn. 6. This statement was based on the conclusion that the Double Jeopardy Clause incorporates
principles of collateral estoppel, preventing relitigation of previously decided factual issues. Id. The Supreme
Court of Ohio cited this exception in at least two decisions, State v. Thomas, 61 Ohio St.2d 254 (1990),
paragraph four of the syllabus, and State v. Tolbert, 60 Ohio St.3d 89, 91 (1991). Although some courts have
recently cited this exception (see, e.g., State v. Edwards, 8th Dist. No. 94568, 2011-Ohio-95, ¶ 19), a review of
subsequent decisions from the United States Supreme Court and the Supreme Court of Ohio casts doubt upon
its continued viability.
      In Grady, the United States Supreme Court held that the Double Jeopardy Clause "bars any subsequent
prosecution in which the government, to establish an essential element of an offense charged in that
prosecution, will prove conduct that constitutes an offense for which the defendant has already been
prosecuted." Grady at 521. The Grady decision expressly relied on Brown, and other earlier decisions, in
reaching this conclusion. Id. at 515-22. However, only three years later, the United States Supreme Court
decided United States v. Dixon, 509 U.S. 688 (1993), in which it expressly overruled Grady, holding that
"[t]he 'same-conduct' rule [Grady] announced is wholly inconsistent with earlier Supreme Court precedent
and with the clear common-law understanding of double jeopardy." Dixon at 704. Although the Dixon
decision did not expressly overrule the exception set forth in Brown, it referred to Brown's statement that the
Blockburger test was not the only standard for determining whether successive prosecutions were barred by
the Double Jeopardy Clause as "the purest dictum." Id. at 706. Similarly, in State v. Zima, 102 Ohio St.3d 61,
2004-Ohio-1807, the Supreme Court of Ohio rejected the appellant's argument that her second prosecution
was barred under the Double Jeopardy Clause despite passing the Blockburger test because it would prove
conduct that constituted an offense for which she was already prosecuted. The Supreme Court held that this
No. 14AP-602                                                                                                 12

        {¶ 27} In the municipal court proceeding, appellant was charged with and pled
guilty to domestic violence, in violation of R.C. 2919.25(A). That statute provides that "[n]o
person shall knowingly cause or attempt to cause physical harm to a family or household
member." R.C. 2919.25(A). The felony indictment charged appellant with two counts of
endangering children, in violation of R.C. 2919.22, and one count of felonious assault, in
violation of R.C. 2903.11. We will apply the Blockburger test to each charge in the felony
indictment to determine whether it constituted the "same offense" as the domestic violence
charge in the municipal court proceeding.
        {¶ 28} The statute defining the crime of endangering children offers several
alternate forms of committing the offense; therefore, we must consider the language of the
felony indictment to determine which portions of the statute appellant was charged with
violating. The first count of the felony indictment alleged that appellant recklessly abused
the victim, who was under the age of 18, resulting in serious physical harm to the victim.
Thus, the first count of the felony indictment appears to charge appellant with a violation
of R.C. 2919.22(B)(1), which provides that no person shall abuse a child less than 18 years
of age.3 The second count of the felony indictment set forth alternative allegations,
mirroring the statutory language set forth in R.C. 2919.22(B)(2) through (4).
        {¶ 29} Endangering children, as prohibited under R.C. 2919.22(B)(1) through (4),
requires that the victim be a child. By contrast, the crime of domestic violence in violation
of R.C. 2919.25(A) provides that the victim must be a "family or household member." The
statute defines certain individuals, both adults and children, who may be a "family or
household member," but requires that the individual must "resid[e] or [have] resided with
the offender." R.C. 2919.25(F)(1). There is no requirement that the victim of child
endangering must reside with the offender. Therefore, under the Blockburger test, the
endangering charges under the felony indictment were not the "same offense" as domestic

was effectively the "same conduct" test adopted in Grady and overruled in Dixon. Zima at ¶ 35. The Zima
decision applied the Blockburger test without considering the "even if" exception set forth in Brown and other
decisions.
      Because Dixon and Zima appear to reject the exception to the Blockburger test developed in Brown
and subsequent cases, this decision applies the Blockburger test, focusing strictly on the elements of the
crimes charged in each prosecution.
3 The Supreme Court of Ohio has held that the culpable mental state for the crime of endangering children is

recklessness. State v. Adams, 62 Ohio St.2d 151, 152-53 (1980) (holding that "[r]ecklessness * * * is sufficient
culpability to commit the offense [of endangering children]" because the statute does not specify any culpable
mental state and does not plainly indicate a purpose to impose strict liability).
No. 14AP-602                                                                                13

violence for double jeopardy purposes because each crime contains an element that the
other does not.
       {¶ 30} The third count of the felony indictment alleged that appellant knowingly
caused serious physical harm to the victim in violation of R.C. 2903.11. This language
mirrors the definition of felonious assault under R.C. 2903.11(A)(1), which provides that no
person shall knowingly cause serious physical harm to another or to another's unborn.
Under R.C. Title 29, "serious physical harm" is defined in various ways as a heightened form
of physical harm. Compare R.C. 2901.01(A)(5) (defining serious physical harm to persons)
with R.C. 2901.01(A)(3) (defining physical harm to persons). Domestic violence in violation
of R.C. 2919.25(A) prohibits causing or attempting physical harm, while felonious assault
in violation of R.C. 2903.11(A) prohibits causing serious physical harm. Moreover, as
explained above, domestic violence in violation of R.C. 2919.25(A) requires that the victim
be a family or household member, while felonious assault in violation of R.C. 2903.11(A)(1)
may involve any other person. Thus, under the Blockburger test, the felonious assault
charge was not the "same offense" as domestic violence for double jeopardy purposes.
       {¶ 31} Because the charges against appellant were not the same offenses for double
jeopardy purposes as the crime to which appellant pled guilty in the municipal court
proceeding, the trial court did not commit plain error by denying his motion to dismiss the
felony indictment.
       {¶ 32} Accordingly, we overrule appellant's second assignment of error.
       {¶ 33} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.
                  BRUNNER, J., concurs in judgment only, writing separately.
                        HORTON, J., concurs in judgment only.



BRUNNER, J., concurring in judgment only, writing separately.
       {¶ 34} I concur in the majority's result on the first assignment of error because I do
not believe the facts in this case support the notion that Bridges pled guilty as a result of a
negotiated plea such that he could have had a reasonable belief that his plea terminated the
incident. In addition, because the United States Supreme Court case law on double
No. 14AP-602                                                                                  14

jeopardy has unfortunately taken us in the direction we decide today, I must concur with
the majority's result on the second assignment of error based on United States v. Dixon,
509 U.S. 688 (1993). However, I write separately to register my dissatisfaction with the
result compelled by Dixon and to express my view that the cases cited by the majority would
not justify overruling Bridges' first assignment of error if the facts of this case had supported
the notion that Bridges had pled guilty as a result of a negotiated plea rather than what
could be characterized as a unilateral gambit by the defense.
First Assignment of Error:
       {¶ 35} Had Bridges pled guilty as a result of a negotiated plea, it would have been
proper for the common pleas court to grant his motion to dismiss. The state did not reserve
the right on the record to bring future charges as a result of the incident from which the
municipal charges and plea arose, and felony charges were not filed until after Bridges pled
guilty to domestic violence, and the municipal court dismissed the associated assault
charge. Whether the state was represented by the city attorney or the county prosecutor
and at which juncture is immaterial, since no representative of the state reserved the right
to bring further charges from the incident prosecuted.
       {¶ 36} Moreover, by the time felony charges were indicted, Bridges already had been
prosecuted and convicted. That the state missed the opportunity to indict Bridges for more
serious crimes cannot be remedied using State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-
1807, because it is significantly and factually different from this case.          Bridges was
prosecuted by the state before the municipal court for crimes that occurred in a single,
defined set of circumstances—he committed violence resulting in physical harm to his
seven-year-old son, striking him multiple times in the neck, chest, back, and arms with a
belt, resulting in dark bruises, welts, and broken skin.
       {¶ 37} In Zima, the defendant was prosecuted in Cleveland Municipal Court only for
driving under the influence, driving under suspension, failure to yield, and failure to wear
a seatbelt for a single activity that culminated in her striking with her car an oncoming
motorcycle. Later, she was charged with aggravated vehicular assault under circumstances
of driving under the influence and driving recklessly, and she was charged again with
driving under the influence. She pled no contest to the first driving under the influence
charge and was found guilty, the other municipal charges having been dismissed. When
No. 14AP-602                                                                                15

Zima pled guilty on municipal charges, she had already been indicted on the felony charges
by a grand jury and was presumably aware of those charges. Any argument that she had a
reasonable expectation that her plea terminated her culpability is implausible.
       {¶ 38} Bridges, however, was not indicted until the day after he pled guilty to
misdemeanor charges for the same single course of violence toward his son that he had
been prosecuted for the previous day. Accordingly, if the record showed that Bridges had
pled guilty as a result of a negotiation with the prosecutor, the holdings in State v.
Carpenter, 68 Ohio St.3d 59 (1993), and State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-
3547, ¶ 52-60, would be more appropriately applied to Bridges' situation, as opposed to the
holding in Zima. It would have been reasonable for Bridges to have an expectation that his
earlier guilty plea was terminating his culpability in the incident involving his son because,
unlike in Zima, Bridges' actions were indivisible. Zima could be prosecuted on one day for
particular driving infractions that did not involve direct injury to another and separately
for actual harm she caused to another when she not only drove recklessly and under the
influence, but hit a motorcycle doing so (except for the offense of driving under the
influence, of which she was previously found guilty).
Second Assignment of Error:
       {¶ 39} Despite the United States Supreme Court's decision in Dixon to repudiate the
"same conduct" test, I fail to see by any stretch of the imagination that the public could have
any confidence in the justice system in Franklin County when the State of Ohio, whether
represented by the Columbus City Attorney or the Franklin County Prosecutor, can with
our sanction prosecute appellant twice for the same crime. I believe the reasoning in Brown
v. Ohio, 432 U.S. 161 (1977), involving the double prosecution of joy riding and auto theft
by two municipalities for actions occurring over a nine-day period using the same vehicle
should still apply. In Brown, the United States Supreme Court stated:
              The question in this case is whether the Double Jeopardy
              Clause of the Fifth Amendment bars prosecution and
              punishment for the crime of stealing an automobile following
              prosecution and punishment for the lesser included offense of
              operating the same vehicle without the owner's consent.

Id. at 162. The Supreme Court stated:
No. 14AP-602                                                                               16

             As is invariably true of a greater and lesser included offense, the
             lesser offense[—]joyriding[—]requires no proof beyond that
             which is required for conviction of the greater[—]auto theft.
             The greater offense is therefore by definition the "same" for
             purposes of double jeopardy as any lesser offense included in
             it.

Id. at 168. Domestic violence involves knowingly causing physical harm or recklessly
causing serious physical harm to a family or household member. R.C. 2919.25. Child
endangering and felonious assault do not necessarily involve a family or household
member, but as indicted involve inflicting serious physical harm. R.C. 2919.22(B) and
2903.11. Both sets of charges, in municipal court, and in the common pleas court, relate to
the same incident and the same victim, Bridges' beating of his child.              While child
endangering involves a child as opposed to a family member, the status of the victim in
regard to the harm suffered did not change whether or not he was characterized as a family
member or as a child—he was still harmed.
      {¶ 40} The crux of crimes prosecuted—domestic violence, assault, child
endangering, and felonious assault—is physical harm or serious physical harm. Even if the
conviction in the municipal court was for the infliction of physical harm only, that would
necessarily be able to be proved in the common pleas court by finding Bridges guilty of
having inflicted serious physical harm based on child endangering or felonious assault.
      {¶ 41} Further, whether the more serious crime is prosecuted first or second is
immaterial under the United States Supreme Court's holding in Brown:
             "[W]here… a person has been tried and convicted for a crime
             which has various incidents included in it, he cannot be a
             second time tried for one of those incidents without being
             twice put in jeopardy for the same offence." [In re Nielsen, 131
             U.S. 176, 188 (1889).]

             Although in this formulation the conviction of the greater
             precedes the conviction of the lesser, the opinion makes it
             clear that the sequence is immaterial.

Brown at 168. Under Brown, double jeopardy attaches, and the second prosecution cannot
constitutionally commence.
No. 14AP-602                                                                               17

       {¶ 42} Finally, even if the second prosecution of Bridges could be taken to be for a
different part of the same day in which Bridges beat his son, the United States Supreme
Court in Brown stated that double jeopardy still attaches:
               The Double Jeopardy Clause is not such a fragile guarantee that
               prosecutors can avoid its limitations by the simple expedient of
               dividing a single crime into a series of temporal or spatial units.
               Cf. Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99,
               101, 87 L.Ed. 23 (1942). The applicable Ohio statutes, as written
               and as construed in this case, make the theft and operation of a
               single car a single offense. Although the Wickliffe and East
               Cleveland authorities may have had different perspectives on
               Brown's offense, it was still only one offense under Ohio law.
               Accordingly, the specification of different dates in the two
               charges on which Brown was convicted cannot alter the fact
               that he was placed twice in jeopardy for the same offense in
               violation of the Fifth and Fourteenth Amendments.

(Footnote deleted.) Id. at 169-70.
Conclusion:
       {¶ 43} The judgment of the trial court is troubling. Without Dixon, and based on
Brown, it is clear that Bridges was prosecuted twice for the same crime in violation of the
Double Jeopardy Clause of the Fifth Amendment. Although Dixon's strict insistence on
figuratively "lining up" the elements under an exact comparison test allows the crimes to
be artificially differentiated, in my view, common sense shows that, on these facts, these are
the same offenses by different names—the offenses here concerned the same course of
conduct against the same person and essentially the same harm. The second prosecution
of Bridges should be constitutionally impermissible double jeopardy in violation of the Fifth
and Fourteenth Amendments of the United States Constitution. In addition, had Bridges
pled guilty as a result of a negotiated plea, Carpenter and Harrison would apply, not Zima,
and Bridges would have had a justifiable and reasonable expectation that his plea
terminated the incident with the result that it would have violated due process to prosecute
him further.
