[Cite as State v. Lamp, 2013-Ohio-1219.]


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

STATE OF OHIO                                         C.A. No.      26602

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MARK EMERY LAMP                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   CR 12 06 1587

                                 DECISION AND JOURNAL ENTRY

Dated: March 29, 2013



        CARR, Judge.

        {¶1}    Appellant, the State of Ohio, appeals the judgment of the Summit County Court

of Common Pleas. This Court reverses.

                                                 I.

        {¶2}    Mark Lamp was arrested on May 18, 2012, and charged with a misdemeanor theft

offense. Subsequently, the Summit County Grand Jury returned an indictment charging Lamp

with one count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth

degree. On July 20, 2012, after pleading guilty to theft in municipal court, Lamp filed a motion

to dismiss the felony indictment on double jeopardy grounds. After a hearing, the trial court

issued a journal entry granting Lamp’s motion.

        {¶3}    On appeal, the State of Ohio raises one assignment of error.
                                                 2


                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING THE
       INDICTMENT.

       {¶4}    In its assignment of error, the State argues that the trial court erred in granting

Lamp’s motion to dismiss the indictment. This Court agrees.

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

shall * * * be subject for the same offense to be twice put in jeopardy of life and limb.”

Similarly, Section 10, Article I, Ohio Constitution provides, “No person shall be twice put in

jeopardy for the same offense.”

       {¶6}    Lamp argued in his motion that the indictment should be dismissed because the

State’s decision to charge him with breaking and entering violated the constitutional prohibition

against double jeopardy. In support of his motion to dismiss, however, Lamp relied on both

double jeopardy case law as well as case law dealing with whether two crimes constituted allied

offenses of similar import. A critical segment of Lamp’s analysis hinged on the Ohio Supreme

Court’s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, in which the

high court clarified the application of Ohio’s allied offenses statute, R.C. 2941.25, and overruled

State v. Rance, 85 Ohio St.3d 632 (1999), “to the extent that it calls for a comparison of statutory

elements solely in the abstract under R.C. 2941.25.”

       {¶7}    While Lamp relied on Johnson in support of his motion, we note that 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. In State v. Zima, 102

Ohio St.3d 61, 2004-Ohio-1807, ¶ 18, the Supreme Court held that determining whether an

accused is being successively prosecuted for the “same offense” requires courts to apply the
                                                 3


“same elements” test articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932),

which states, “The applicable rule under the Fifth Amendment 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.” (Internal citations and quotations omitted.)

       {¶8}    In Zima, the Supreme Court confronted a set a circumstances where a defendant

was charged with driving under the influence in violation of a Cleveland City Ordinance. The

Cuyahoga County Grand jury subsequently indicted the defendant on charges of aggravated

vehicular assault on the basis that she was driving under the influence, aggravated vehicular

assault on the basis that she was driving recklessly, and driving under the influence. Like this

case, the defendant in Zima entered into a plea agreement in municipal court on the misdemeanor

charge and then subsequently moved to dismiss the felony charges pending in common pleas

court on double jeopardy grounds. There, the Supreme Court emphasized that the test for

successive prosecutions outlined in Blockburger is separate from the allied offenses standard set

forth in R.C. 2941.25, stating that when a case “involves only the issues of successive

prosecutions, it is not controlled by R.C. 2941.25 or Rance.” Zima at ¶ 40, fn 3.

       {¶9}    At the hearing on Lamp’s motion, defense counsel did not focus on the double

jeopardy standard set forth in Blockburger.       Instead, defense counsel emphasized that the

Supreme Court’s decision in Johnson had “redefined [Ohio’s] understanding of allied offenses,”

and that under that standard, the indictment should be dismissed because theft and breaking and
                                                 4


entering were allied offenses of similar import. Defense counsel further noted that the authority

the State relied upon in opposition to the motion was of limited precedential value as those cases

were decided prior to the Johnson decision. The trial court then stated that it had “read and

studied” Johnson, and that the “key issue” is “whether it is possible for the same act to constitute

a violation of two statutes.” After further discussion of the Johnson standard and the facts of this

case, the trial court concluded that theft and breaking and entering were allied offenses, and that

Lamp’s motion to dismiss on double jeopardy grounds should be granted.

        {¶10} The trial court erred by applying the test set forth in Johnson to determine

whether the State’s decision to charge Lamp with breaking and entering violated the

constitutional prohibition against double jeopardy.      The Ohio Supreme Court’s decision in

Johnson, as well as its prior decision in Rance, dealt with determining whether two crimes were

allied offenses of similar import pursuant to R.C. 2941.25. As this case involved the question of

whether Lamp was being successively prosecuted for the same offense, the trial court should

have utilized the “same elements” test articulated in Blockburger. It follows that this case must

be remanded for the trial court to make the initial determination regarding whether, under the

standard set forth in Blockburger, the principles of double jeopardy bar successive prosecution in

this case.

        {¶11} The State’s assignment of error is sustained.

                                                III.

        {¶12} The State’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this decision.
                                                 5


                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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 Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

JEFFREY N. JAMES, Attorney at Law, for Appellee.
