[Cite as State v. Thompson, 2013-Ohio-2647.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :   APPEAL NO. C-130053
                                                   TRIAL NO. B-1204220
         Plaintiff-Appellee,                   :

   vs.                                         :      O P I N I O N.

MATT THOMPSON,                                 :

         Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 26, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


        {¶1}   Defendant-appellant Matt Thompson pleaded no contest to burglary

and was sentenced to two years in prison after the trial court overruled his motion to

dismiss the indictment against him on double-jeopardy grounds. Thompson appeals

the trial court’s decision denying his motion to dismiss, and because we reiterate that

successive-prosecution cases are controlled by Blockburger, and not by R.C. 2941.25,

we affirm.

        {¶2}   On January 25, 2012, the state of Ohio filed a criminal complaint

against Thompson, charging him with receiving stolen property under R.C. 2913.51,

specifically a Vizio television belonging to the victim, C.W., which had been stolen

from C.W.’s home that same day. On June 21, 2012, Thompson and a codefendant

were indicted for burglary under R.C. 2911.12(A)(2), a second-degree felony, in the

Hamilton County Court of Common Pleas for entering by force into C.W.’s home and

stealing two televisions and a cellular phone, according to the bill of particulars.

Thompson pleaded no contest to misdemeanor receiving stolen property in the

Hamilton County Municipal Court in October 2012, and was sentenced to 30 days in

jail.

        {¶3}   Within days of his no-contest plea in municipal court, Thompson filed

a motion to dismiss the indictment against him for burglary on double-jeopardy

grounds. Thompson specifically argued that because the receiving-stolen-property

and burglary offenses were allied offenses of similar import subject to merger,

Thompson’s prosecution for burglary violated his double-jeopardy rights. The trial

court overruled Thompson’s motion, determining that Thompson’s conduct in

retaining stolen property was separate from the conduct required to prove burglary.

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                   OHIO FIRST DISTRICT COURT OF APPEALS



Thompson subsequently pleaded no contest to the burglary charge and was

sentenced to two years in the department of corrections. This appeal ensued.

       {¶4}   In a sole assignment of error, Thompson contends that the trial court

erred by denying his motion to dismiss.        Thompson argues that his burglary

prosecution violated his double-jeopardy rights because he had already been

convicted of receiving stolen property under R.C. 2913.51 in municipal court, and

that the burglary and receiving-stolen-property offenses were allied offenses of

similar import that must be merged under R.C. 2941.25. We review a trial court’s

decision on a motion to dismiss an indictment de novo. State v. Battease, 1st Dist.

Nos. C-050837 and C-050838, 2006-Ohio-6617, ¶ 14.

       {¶5}   This court has held that successive-prosecution cases, such as this, are

controlled by Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.

306 (1932), and not by R.C. 2941.25. See Univ. of Cincinnati v. Tuttle, 1st Dist. No.

C-080357, 2009-Ohio-4493, ¶ 12, citing State v. Zima, 102 Ohio St.3d 61, 2004-

Ohio-1807, 806 N.E.2d 542. Under Blockburger, “the Double Jeopardy Clause * * *

prohibits successive prosecutions for the same criminal act or transaction under two

criminal statutes unless each statute requires proof of a fact which the other does

not.” (Internal quotations and citations omitted). State v. Tolbert, 60 Ohio St.3d 89,

573 N.E.2d 617 (1991), paragraph one of the syllabus.

       {¶6}   In Tuttle, the University of Cincinnati (“UC”) had obtained a

permanent injunction against the defendant, prohibiting the defendant from being

on UC’s property. The defendant was later found on UC’s property on two occasions,

and, as a result, was convicted in the Hamilton County Municipal Court of

trespassing. The defendant was subsequently prosecuted in the common pleas court

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                     OHIO FIRST DISTRICT COURT OF APPEALS



for indirect criminal contempt for violating the permanent injunction.                 The

defendant filed a motion to dismiss the contempt charges on the basis that the

contempt prosecution violated his double-jeopardy rights because the contempt

charges were premised on the same conduct as the trespassing convictions. Tuttle at

¶ 12. This court affirmed the trial court’s decision overruling the defendant’s motion

by applying the “same elements” test from Blockburger and explicitly rejecting an

application of R.C. 2941.25. Id. at ¶ 12-13.

        {¶7}    We conclude that our decision in Tuttle remains unchanged by the

Supreme Court’s interpretation of R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061. See State v. Lamp, 9th Dist. No. 26602,

2013-Ohio-1219, ¶ 7 (recognizing that successive-prosecution cases under the Fifth

Amendment are controlled by Blockburger and not R.C. 2941.25 and Johnson).

        {¶8}    Applying the Blockburger test to the instant case, burglary requires

proof that a defendant trespassed, an element not required by the receiving-stolen-

property statute; therefore, Thompson’s double-jeopardy rights were not violated by

his prosecution for burglary. See R.C. 2911.12(A)(2) and 2913.51. The trial court did

not err in overruling Thompson’s motion to dismiss the indictment for burglary.

        {¶9}    We overrule Thompson’s assignment of error. The judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.

HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.



Please note:
        The court has recorded its own entry on the date of the release of this opinion.


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