[Cite as State v. Toth, 2017-Ohio-5481.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      16CA0086-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
WILLIAM TOTH                                          COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   16CR0358

                                  DECISION AND JOURNAL ENTRY

Dated: June 26, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, William Toth, appeals from his conviction for possession of cocaine in

the Medina County Court of Common Pleas. We affirm.

                                                 I.

        {¶2}     Two Brunswick Hills police officers responded to a call regarding a domestic

dispute in May of 2016. A female had called 911 and said that she was in a domestic violence

altercation with Mr. Toth. She told the 911 dispatcher that Mr. Toth was using narcotics and had

now locked himself in a closet. When the officers arrived, Mr. Toth met one of them at the front

door. The officer took Mr. Toth outside and patted him down for officer safety. The officer

entered the residence and saw a glass smoking device containing burnt residue on a table in plain

view. The smoking device was later tested at the Ohio Bureau of Criminal Identification and

Investigation and revealed trace amounts of cocaine.
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       {¶3}    Mr. Toth was charged in Medina Municipal Court with illegal use or possession

of drug paraphernalia, a misdemeanor of the fourth degree. He pled no contest and was found

guilty. He was also charged in the Medina Court of Common Pleas with possession of cocaine, a

felony of the fifth degree. He filed a motion to dismiss his felony charge based on double

jeopardy grounds. The trial court held a hearing on the matter and denied the motion.

       {¶4}    Mr. Toth now appeals from the trial court’s denial of his motion to dismiss and

raises two assignments of error for this Court’s review.

                                                II.

                              ASSIGNMENT OF ERROR ONE

           DOUBLE JEOPARDY BARS THE STATE OF OHIO FROM
           PROSECUTING APPELLANT FIRST FOR THE POSSESSION OF DRUG
           PARAPHERNALIA FOR POSSESSING A GLASS SMOKING DEVICE
           AND SECOND[] FOR THE POSSESSION OF [] DRUGS FOR THE
           TRACE AMOUNTS OF DRUGS FOUND ON THE SAME GLASS
           SMOKING DEVICE.

       {¶5}    In his first assignment of error, Mr. Toth argues that the trial court erred in

denying his motion to dismiss because prosecution in common pleas court for possession of

cocaine violates his protection against double jeopardy when he has already pled no contest and

been found guilty of illegal use or possession of drug paraphernalia in municipal court, when

both of the offenses arose out of the same incident and the same evidence. We disagree.

       {¶6}    “[A]n order denying a motion to dismiss on double-jeopardy grounds is a final,

appealable order.” State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, ¶ 61. “We apply a de

novo standard of review when reviewing the denial of a motion to dismiss an indictment on the

grounds of double jeopardy.” State v. Hartman, 9th Dist. Medina No. 15CA0090-M, 2017-

Ohio-1089, ¶ 9.
                                                3


       {¶7}    The Fifth Amendment to the United States Constitution provides that “[n]o person

shall * * * be subject for the same offence to be twice put in jeopardy of life or limb * * *.” The

Fifth Amendment has been made applicable to the states through the Fourteenth Amendment.

Benton v. Maryland, 395 U.S. 784, 787 (1969). Article I, Section 10, of the Ohio Constitution

also contains a Double Jeopardy Clause which states, “[n]o person shall be twice put in jeopardy

for the same offense.” “The Double Jeopardy clause embraces the belief that the State should

not be permitted to make repeated attempts to convict an individual for an alleged offense,

thereby subjecting him to embarrassment, expenses, and a continuous state of anxiety and

insecurity.” State v. Armstrong, 9th Dist. Medina No. 03CA0064-M, 2004-Ohio-726, ¶ 13.

       {¶8}    “[D]etermining whether an accused is being successively prosecuted for the ‘same

offense’ requires courts to apply the ‘same elements’ test articulated in Blockburger v. United

States, 284 U.S. 299, 304 (1932) * * *.” State v. Lamp, 9th Dist. Summit No. 26602, 2013-Ohio-

1219, ¶ 7, citing State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶ 18. In Blockburger, the

United States Supreme Court stated:

       The applicable rule 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 exempt
       the defendant from prosecution and punishment under the other.

Blockburger at 304. “‘This test focuses upon the elements of the two statutory provisions, not

upon the evidence proffered in a given case.’” Zima at ¶ 20, quoting State v. Thomas, 61 Ohio

St.2d 254, 259 (1980). Thus, the Blockburger test “‘inquires whether each offense contains an

element not contained in the other; if not, they are the “same offence” and double jeopardy bars
                                                 4


additional punishment and successive prosecution.’” Zima at ¶ 20, quoting United States v.

Dixon, 509 U.S. 688, 696 (1993).

       {¶9}    Defense counsel called the two police officers to testify at the motion hearing.

Her questions on direct examination focused on the fact that two charges in two different courts

stemmed from a single smoking device containing cocaine residue. In closing, counsel argued

that Mr. Toth should not be punished for the same offense under two different statutes. She

argued that a person cannot possess a drug without having some paraphernalia item such as a

box, baggie, or smoking device, and further claimed that the same smoking device served as

evidence in both of Mr. Toth’s charges.

       {¶10} Defense counsel also relied on State v. Ruff at the hearing to argue that the trial

court should look at the conduct, the animus, and the import of the crimes to determine whether

or not there should be a merger and whether double jeopardy would allow two separate

punishments for the same act. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one

of the syllabus (holding that courts must evaluate the conduct, the animus, and the import in

determining whether offenses are allied offenses of similar import). However, “the standard for

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

distinct from the allied offenses standard * * *.” Lamp at ¶ 7. Mr. Toth’s double jeopardy

argument here hinges on whether he was successively prosecuted for the same offense, not

whether the two crimes are allied offenses of similar import. See id. at ¶ 10. Therefore, the

Blockburger test is controlling here, not the holding in Ruff. See id.

       {¶11} This Court has addressed the issue of double jeopardy and successive

prosecutions involving the illegal use or possession of drug paraphernalia and possession of

drugs statutes previously in State v. Mullenix, 9th Dist. Summit No. 16229, 1993 WL 347179
                                                 5


(Sept. 15, 1993). In Mullenix, the appellant was arrested for possessing a crack pipe and pled

guilty to possession of drug paraphernalia under R.C. 2925.14. Id. at *1. After she entered her

guilty plea, the police tested the residue in the pipe and determined it to be cocaine. Id. The

appellant was then charged with drug abuse under R.C. 2925.11. Id. She filed a motion to

dismiss on double jeopardy grounds, which was denied by the trial court. Id. She pled no

contest, was found guilty, and appealed. Id. We rejected the appellant’s reliance on the “same-

conduct” test in Grady, followed the United States Supreme Court’s decision in Dixon instead,

and stated, “It is no longer of any consequence to this analysis that appellant’s possession of both

the crack pipe and the cocaine residue found therein may have arisen out of the same course of

conduct.” Id. at *1-2; See Grady v. Corbin, 495 U.S. 508 (1990), overruled Dixon, 509 U.S.

688. Because each offense contained an element that the other did not, we stated that the

offenses “cannot be considered the ‘same offense’ for constitutional double jeopardy purposes”

and affirmed the judgment of the trial court. Mullenix at *2.

       {¶12} In the case sub judice, Mr. Toth was charged with illegal use or possession of

drug paraphernalia under R.C. 2925.14(C)(1), which states no person shall knowingly use, or

possess with purpose to use, drug paraphernalia. He was also charged with possession of

cocaine under R.C. 2925.11(A), which states no person shall knowingly obtain, possess, or use

cocaine.

       {¶13} Both R.C. 2925.14(C)(1) and R.C. 2925.11(A) contain an element that the other

does not.    See Mullenix at *2.      R.C. 2925.14(C)(1) requires use or possession of drug

paraphernalia, but possession of cocaine is not required. See id. Conversely, R.C. 2925.11(A)

requires possession of cocaine, but use or possession of drug paraphernalia is not required. See

id. Therefore, under the Blockburger “same-elements” test, offenses under R.C. 2925.14(C)(1)
                                                6


and R.C. 2925.11(A) cannot be considered the “same offense” for constitutional double jeopardy

purposes. See id.

       {¶14} We conclude that the trial court correctly denied Mr. Toth’s motion to dismiss.

       {¶15} Mr. Toth’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE
       EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL’S
       FAILURE TO EFFECTIVELY ADVOCATE FOR DISMISSAL BASED ON
       DOUBLE JEOPARDY, COMPULSORY CLAIM, PUBLIC POLICY, OR
       OTHER ARGUMENT PRESENTED IN THIS APPELLATE BRIEF OR TO
       ADEQUATELY PRESERVE OR PROTECT THE RECORD TO SUPPORT
       [THE] SAME ARGUMENTS.

       {¶16} In his second assignment of error, Mr. Toth argues that should this Court find any

errors in his trial counsel’s performance for failure to preserve the record for purposes of appeal

or failure to make the appropriate double jeopardy arguments, any such deficiencies would

constitute ineffective assistance of counsel. As we have addressed Mr. Toth’s double jeopardy

argument in our resolution of his first assignment of error, his second assignment of error is

rendered moot. See App.R. 12(A)(1)(c).

                                               III.

       {¶17} Mr. Toth’s first assignment of error is overruled. His second assignment of error

is moot. The judgment of the Medina County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
