[Cite as State v. Matthews, 2011-Ohio-2067.]




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

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 23953
        Plaintiff-Appellant                       :
                                                  :     Trial Court Case No. 08-CR-137
v.                                                :
                                                  :
CURTIS MATTHEWS                                   :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellee                :
                                                  :
                                               ...........

                                               OPINION

                              Rendered on the 29th day of April, 2011.

                                               ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

KRISTINE E. COMUNALE, Atty. Reg. #0062037, Law Office of the Public Defender, 117
South Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellee

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

HALL, J.

        {¶ 1} The state appeals from a trial court’s order dismissing an indictment that

charged the defendant, Curtis Matthews, with the offense of tampering with records. The

trial court determined that the time specified in Ohio’s speedy-trial provisions within which

Matthews had to be brought to trial for this offense was expired. We agree. Also, the Fifth
                                                                                         2


Amendment’s Double Jeopardy Clause would not have precluded prosecuting Matthews for

this offense. We affirm.



                                                 I

       {¶ 2} Matthews was indicted on December 22, 2006, on one count of theft by

deception in violation of R.C. 2913.02(A)(3) in Montgomery County Common Pleas Court

Case No. 2006 CR 04674. The indictment in that case alleged that between November 1,

2005, and January 24, 2006, “CURTIS LAWREY, AKA: CURTIS MATTHEWS” obtained

by deception welfare benefits worth over $500. The charge stemmed from an investigation by

the Investigation and Recovery Unit of the Montgomery County Department of Job and

Family Services. The investigation revealed that, on November 1, 2005, Matthews applied for

food stamps under the name “Curtis Lawery” but failed to state that he was living with a

woman (the mother of his child) who herself was receiving food stamps and assistance. Then,

on November 14, 2005, Matthews applied for food stamps under the name “Curtis Matthews.”

On his application, Matthews stated that he was residing at an address other than, what was

determined to be, the address where he actually resided, and he again failed to state that he

was living with the mother of his child. Matthews pleaded guilty to this charge and was

convicted.

       {¶ 3} A little over a year later, on February 22, 2008, Matthews was indicted again.

This indictment charged him with one count of tampering with records in violation of R.C.

2913.45(A)(1). The indictment alleged that between July 1, 2004, and December 13, 2006,

“CURTIS LAMONT MATTHEWS, AKA: CURTIS LAWREY” falsified, destroyed,

removed, concealed, altered, defaced, or mutilated a writing, computer software, data, or
                                                                                                                                       3


record with a purpose to defraud or knowing that he was facilitating a fraud. The charge was

based on an investigation by the Ohio State Highway Patrol, which began in February 2007

after the Ohio Bureau of Workers’ Compensation reported to the Highway Patrol that it

suspected that Matthews had been issued two Ohio driver’s licenses. 1 The investigation

revealed that, about eight years before he was indicted, Matthews had already applied for, and

been issued, a driver’s license under the name “Curtis Lawrey” when he applied for, and was

issued, a second driver’s license under the name “Curtis Matthews.” He continually renewed

both licenses ever since. The time period in the indictment represented, at that time, the most

recent complete renewal period.2

         {¶ 4} On April 22, 2008, Matthews moved to dismiss the 2008 indictment. He

argued that the time specified in Ohio’s speedy-trial provisions within which the state had to

bring him to trial for this offense was expired. Matthews contended that the state knew in

2006 that he had two driver’s licenses and used them to commit the theft, so it was in 2006

that the speedy-trial clock began to run on the tampering-with-records charge. The time

specified in the speedy-trial provisions expired before he was charged in 2008. Matthews also

argued that prosecuting him for tampering with records, when he had already been convicted


            1
        On May 11, 2007, Matthews was indicted in Hamilton County, Ohio, on one
 count of workers’ compensation fraud. The indictment alleged that Matthews had
 fraudulently obtained workers’ compensation benefits. Matthews pleaded guilty to this
 charge and was convicted.
            2
              Four days after the February 2008 indictment was returned, Matthews applied for a state identification card. And, a few months
 later, he again separately renewed both licenses. He was indicted, in Case No. 2009 CR 02178, on August 25, 2009, for tampering with
 records. This charge related to application for the state identification card, not the driver’s licenses. On June 21, 2010, the trial court found
 that the defendant, by applying for the identification card, was guilty of violating R.C. 4507.50(A). According to the trial court, this statute
 forbids a person from applying for an identification card while possessing a valid driver’s license.
                                                                                               4


of theft, violated his Fifth Amendment right to be free from double jeopardy. For these two

reasons, Matthews argued, the 2008 indictment must be dismissed. In response, the state

conceded that in 2006 it was aware that Matthews had two driver’s licenses and used them to

commit the theft. But the state argued that tampering with records is a different offense. And it

argued that it did not know all the facts needed to charge the offense until the Ohio State

Highway Patrol completed its investigation in February 2008. The state also argued that theft

and tampering with records are not the same offense for double jeopardy purposes.

       {¶ 5} Although the state had requested a hearing, the trial court did not hold one.

Instead, based on the parties’ written arguments, the court sustained the motion to dismiss,

finding that the speedy-trial time for the tampering with records offense had expired. The

court did not address the double-jeopardy issue.

       {¶ 6} The state appealed to this court, and this court reversed. See State v. Matthews,

Montgomery App. No. CA 23051, 2009-Ohio-6694. That decision noted that the state’s

concession formed the basis of the trial court’s decision: “Relying on the State’s concession,

the trial court reasoned: ‘It is difficult for the Court to imagine how the original indictment for

theft might have been returned without determining that the Defendant had tampered with

government records to “facilitate or effectuate” the theft.’ The court found that, with respect to

the two driver’s licenses Defendant used to commit the 2006 theft offense, ‘the State had

knowledge that these “different persons” were one and the same person, which knowledge

formed the basis for its 2006 indictment.’” Id. at ¶5. Ultimately, we concluded that the trial

court erred by failing to conduct an evidentiary hearing–an error that precluded us from

reviewing the error assigned. We remanded for the court to hold a hearing.

       {¶ 7} At the evidentiary hearing, the defense submitted the discovery packet that the
                                                                                             5


State of Ohio provided to defendant’s counsel for the 2006 theft case. Contained therein were

copies of each of the defendant’s driver’s licenses and LEADS images of the defendant which

include the two separate photographs, each of the defendant, from the respective driver’s

licenses. Also included is the investigator’s report documenting an interview with the

defendant’s mother which confirmed that the defendant did not have a twin.

       {¶ 8} The only witness to testify at the evidentiary hearing was the Ohio State

Highway Patrol trooper who investigated the tampering charge. According to the trooper,

Matthews first applied for a second driver’s license in 2000. Since then, he has continually

renewed both licenses by filing renewal applications for both. The trooper said that the license

renewal on July 1, 2004, was the act that led to the 2008 tampering-with-records charge.

       {¶ 9} He said that his investigation involved acquisition of the applications for

renewal of the driver’s licenses, and unsuccessful attempts to interview the defendant who

could not be located.     As indicated, the State Patrol     investigation did not begin until

February 16, 2007, and ended when it referred the case to the Montgomery County Prosecutor

a year later, in February 2008.

       {¶ 10} On March 23, 2010, the trial court again sustained the motion to dismiss. The

court said in its written decision that the evidence presented at the hearing supported the facts

upon which its prior decision was based. The trial court did not address the double-jeopardy

issue. Instead, adopting the rationale of its prior decision, the court once again dismissed the

2008 indictment on speedy trial grounds.

       {¶ 11} The state once again appealed.
                                                                                           6


                                                   II

       {¶ 12} The state alleges in its sole assignment of error that the trial court erred by

sustaining Matthews’s motion to dismiss the indictment based on a violation of Ohio’s

speedy-trial provisions. Such an appeal presents us with a mixed question of fact and law. See

State v. Brown (1998), 131 Ohio App.3d 387, 391. In reviewing a mixed question, we must

defer to the trial court’s supported findings of fact but review the application of the law to

those facts de novo. See id. The state contends that the tampering charge initiated a new

speedy-trial time. The state also contends that the charge does not implicate the Fifth

Amendment’s Double Jeopardy Clause. We conclude that the Fifth Amendment does not

preclude the defendant’s Tampering prosecution, but that the trial court did not err in

dismissing the case on speedy trial grounds.



       I. The State knew the facts to pursue the Tampering-with-Records in 2006

       {¶ 13} In its previous opinion, this court stated:

       {¶ 14} “When charges filed in separate earlier and later criminal actions arise from the

same facts and the State knew of those facts when the earlier action was filed, the statute of

limitations applicable to the charges in the later action commences to run when the limitation

period commenced to run on the charges in the earlier action. State v. Adams (1989), 43 Ohio

St.3d 67; State v. Bonarrigo (1980), 62 Ohio St.2d 80. The rule does not apply when the

charges in the later action arise from different facts or the State did not know of those facts

when the earlier action was filed. State v. Baker, 78 Ohio St.3d 108, 1997-Ohio-229.

Additional crimes based on different facts should not be considered as arising from the same

sequence of events for the purpose of speedy trial computation. Id.
                                                                                             7


       {¶ 15} “It is undisputed that more than two hundred and seventy days had expired

when Defendant was indicted in Case No. 2008CR0137 since he had been indicted in Case

No. 2006CR4674. The State conceded in its memorandum contra Defendant’s motion to

dismiss that at the time the theft charges in Case No. 2006CR0137 were filed the State was

aware that Defendant ‘was using his two driver’s licenses to effectuate the theft.’ (Dkt. 14, p.

7). The State argues that the Baker exception nevertheless applies because the crime charged

in Case No. 2008CR0137 involves criminal conduct different from the criminal conduct

charged in Case No. 2006CA4674. We do not agree. The Baker exceptions are not concerned

with whether the charges in the prior and subsequent actions allege different grounds for

criminal liability. The question is whether in order to prove the charges in both cases the State

must prove a set of facts common to both charges, and whether the State knew of those facts

when the earlier action was filed.

       {¶ 16} “To prevail on his speedy trial motion, Defendant was required to show that the

State was aware in 2006 that Defendant had obtained a falsified driver’s license, not merely

that he used a falsified license to commit a theft....” State v. Matthews, Montgomery App.

No. CA 23051, 2009-Ohio-6694, ¶ 8-10.

       {¶ 17} On remand the trial court concluded that “The evidence adduced at the hearing

supported those facts upon which the Court based its October 28, 2008 decision, and neither

dispelled any of these facts nor supplied new facts such that the Court’s decision would be

otherwise....”   In the original October 28, 2008 decision, the trial court had effectively

concluded that the State of Ohio knew of the information necessary to pursue the Tampering

charge at the time it pursued the indictment for the Theft charge. On the specific facts of this

case, that conclusion is not unreasonable. The State of Ohio admitted it knew the defendant
                                                                                             8


had two driver’s licenses. The only additional facts it acquired from the State Patrol

investigation were the renewal applications for the respective driver’s licenses. That evidence

would perhaps be helpful for the prosecution. But, the defendant’s separate driver’s license

pictures from the State’s own database establishes that the defendant himself applied for and

acquired the two licenses at the times that his picture was taken. Therefore, the trial court’s

conclusion that the State was aware in 2006 that the defendant had obtained a falsified driver’s

license is supported by the record.



        II. The Double Jeopardy Clause Is Not Implicated

        {¶ 18} In his motion to dismiss, Matthews argued that the Double Jeopardy Clause

also required the trial court to dismiss the 2008 indictment. Matthews argued that, by charging

him with tampering with records, the indictment subjects him to a second prosecution for the

same offense. Matthew argued in the alternative that the state is collaterally estopped from

prosecuting him for this offense. Although the trial court did not address either argument, we

briefly will.

        {¶ 19} The Double Jeopardy Clause of the Fifth Amendment provides that no person

shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Ohio

Supreme Court has adopted the test established in Blockburger v. United States (1932), 284

U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, for determining whether a defendant is being

re-prosecuted for the “same offense”: “‘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
                                                                                             9


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.’” State v.

Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, at ¶19 (Emphasis added.), quoting State v. Best

(1975), 42 Ohio St.2d 530, at paragraph three of the syllabus.

       {¶ 20} In this case, we do not even get to the Blockburger test because the test’s

threshold condition is not satisfied. There is no act or transaction charged that violates both

the tampering-with-records provision and theft provision. Wrongfully obtaining food stamps

was the act that violated the theft provision. But the act that violated the

tampering-with-records     provision   was    wrongfully falsifying,     destroying,   removing,

concealing, altering, defacing, or mutilating a writing, computer software, data, or record. Not

only are these different acts but they were committed at different times.

       {¶ 21} “The Double Jeopardy Clause incorporates the doctrine of collateral estoppel,”

In re Burton, 160 Ohio App.3d 750, 2005-Ohio-2210, at ¶10, citing State v. Lovejoy (1997),

79 Ohio St.3d 440, 444, which Matthews argues applies here. “Collateral estoppel is the

doctrine that recognizes that a determination of facts litigated between two parties in a

proceeding is binding on those parties in all future proceedings.” State v. Duncan, 154 Ohio

App.3d 254, 2003-Ohio-4695, at ¶47, citing Lovejoy, at 443. It “means simply that when an

issue of ultimate fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson

(1970), 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469. The doctrine “generally applies in

the case of a previous acquittal.” Burton, at ¶10, citing Lovejoy, at 444 (saying that

“[c]ollateral estoppel generally refers to the acquittal prong of double jeopardy”).

       {¶ 22} It is not clear from Matthews’s brief what ultimate fact he believes has been
                                                                                          10


determined that would preclude the state from prosecuting him for tampering with records. If

Matthews means the fact that he unlawfully had two driver’s licenses, that fact, assuming that

it actually was determined, was determined in the state’s favor. Moreover, it would be a minor

fact in a tampering-with-records prosecution, since the state would not have to prove he

actually obtained anything. Finally, given that Matthews was convicted of theft, not acquitted,

it is unclear how the doctrine would apply to his advantage. Accordingly, had it not been that

we affirm the trial court’s decision to dismiss on speedy trial grounds, we would find that the

defendant’s separate argument that the Double Jeopardy Clause would prevent the defendant’s

prosecution for Tampering is not well taken.



                                                 III

       {¶ 23} The trial court’s order dismissing the 2008 indictment charging Matthews with

tampering with records is Affirmed.

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

GRADY, P.J., and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
R. Lynn Nothstine
Kristine E. Comunale
Hon. Gregory F. Singer
