[Cite as State v. Campbell, 2019-Ohio-1174.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                      Court of Appeals No. WD-18-035

        Appellee                                   Trial Court No. 2016CR0125

v.

Misty Campbell                                     DECISION AND JUDGMENT

        Appellant                                  Decided: March 29, 2019

                                               *****

        Paul A. Dobson, Wood County Prosecuting Attorney, David E.
        Romaker Jr. and David T. Harold, Assistant Prosecuting Attorneys,
        for appellee.

        Lawrence J. Whitney, for appellant.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Misty Campbell, appeals from the May 21, 2018 judgment of the

Wood County Court of Common Pleas, which denied appellant’s motion to dismiss

Count 2 of the indictment following an acquittal on Count 1. For the reasons which

follow, we affirm. On appeal, appellant asserts the following single assignment of error:

                 THE TRIAL COURT’S FAILURE TO DISMISS COUNT 2 OF

        THE INDICTMENT, CARRYING A CONCEALED WEAPON, BEFORE
       PRETRIAL, AFTER GRANTING APPELLANT’S MOTION FOR

       JUDGMENT OF ACQUITTAL IN COUNT 1, IMPROPER HANDLING

       OF A FIREARM IN A MOTOR VEHICLE, AND DISCHARGING THE

       HUNG JURY IN THE FIRST TRIAL, VIOLATED APPELLANT’S

       RIGHTS AS PROTECTED BY THE DOUBLE JEOPARDY CLAUSE OF

       THE UNITED STATES CONSTITUTION AND SECTION 10, ART. 1

       OF THE OHIO CONSTITUTION IN THAT SUCH ACTION PUTS

       APPELLANT IN JEOPARDY OF CONVICTION FOR A CRIME FOR

       WHICH SHE HAS BEEN ACQUITTED.

       {¶ 2} While the transcript from the first trial is not part of the record on appeal, the

parties assert the following general facts. The police stopped a car for a speeding

violation. Appellant, a back seat passenger, was sitting next to a backpack containing

women’s clothing and a concealed, operable, and unloaded gun and ammunition.

       {¶ 3} On May 19, 2015, appellant was indicted in a multi-count indictment

alleging two counts: Count 1, a violation of R.C. 2923.16(B) and (I), improperly

handling firearms in a motor vehicle, and Count 2, a violation of R.C. 2923.12(A)(2) and

(F)(1), carrying a concealed weapon. The case proceeded to a jury trial.

       {¶ 4} After presentation of the state’s evidence, appellant moved for a judgment of

acquittal. The trial court granted the motion as to Count 1, but denied the motion as to

Count 2. The jury was unable to reach a unanimous verdict as to Count 2 and the trial

court declared a mistrial and rescheduled the case for retrial as to Count 2.




2.
       {¶ 5} Prior to the retrial of Count 2, appellant moved to dismiss the charge on the

grounds that retrial violated her constitutional right against double jeopardy. She argued

the two counts alleged offenses which are allied offense of similar import and, because

she had been acquitted of Count 1, she could not be tried on Count 2. In a May 21, 2018

judgment, the trial court denied the motion and appellant appeals from that judgment.

       {¶ 6} On appeal, appellant argues in her sole assignment of error that the two

offenses in the indictment are allied offenses of similar import and, therefore, the double

jeopardy clause bars prosecution of the carrying a concealed weapon charge.

       {¶ 7} The appellate court reviews the denial of a motion to dismiss an indictment

on the ground of double jeopardy de novo. State v. Mutter, 150 Ohio St.3d 429, 2017-

Ohio-2928, 82 N.E.2d 1141, ¶ 13. The Double Jeopardy Clauses of both the Fifth

Amendment to the United States Constitution, applied to the states through the

Fourteenth Amendment, and Article I, Section 10, of the Ohio Constitution prohibit a

person, for the same offense, from being “twice put in jeopardy of life or limb.” Fifth

Amendment. The federal and Ohio constitutional protections are coextensive. State v.

Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14.

       {¶ 8} The prohibition against placing someone in double jeopardy applies to three

abuses: “(1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second

prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for the

same offense.’” Mutter at ¶ 15, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89




3.
S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490

U.S. 794, 802, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

      {¶ 9} R.C. 2941.25 codifies the protection against the third abuse established by

the Ohio Constitution. The statute expresses the intent of the General Assembly to

establish “when multiple punishments can be imposed” for multiple convictions of allied

offenses of similar import. In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d

646, ¶ 11, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

¶ 12. However, in the case before us, R.C. 2941.25 is not applicable because appellant

was acquitted of the first charge and is being prosecuted only on the second charge. State

v. Ladson, 8th Dist. Cuyahoga No. 104642, 2017-Ohio-7715, ¶ 24 (the statute applies to

“multiple offenses within a single indictment or information, * * * not * * * successive

indictments).

      {¶ 10} Instead, to determine if a second prosecution following an acquittal violates

the Double Jeopardy Clause, a court must determine if a second prosecution involves the

same offense by applying the test developed in Blockburger v. United States, 284 U.S.

299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Mutter, 150 Ohio St.3d 429, 2017-

Ohio-2928, ¶ 17. The Blockburger test questions whether each offense “requires proof of

a fact which the other does not (citation omitted).” Blockburger at 304. The focus is

upon “‘whether each offense contains an element not contained in the other; if not, they

are the ‘same offence’ and double jeopardy bars additional punishment and successive

prosecution.’” Mutter, quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct.




4.
2849, 125 L.Ed.2d 556 (1993). Furthermore, to bar a second prosecution, “it’s not

enough that ‘a substantial overlap [exists] in the proof offered to establish the crimes.’”

Currier v. Virginia, ___U.S.___, 138 S.Ct. 2144, 2153, 201 L.Ed.2d 650 (2018), quoting

Iannelli v. United States, 420 U.S. 770, 785, fn. 17, 95 S.Ct. 1284, 43 L. Ed.2d 616

(1975). This test addresses whether the second prosecution involves the same act and

crime. Currier.

       {¶ 11} There are exceptions to the Blockburger rule for subsequent prosecutions

for greater and lesser included offenses, Mutter at ¶ 18, but none have been asserted in

this case.

       {¶ 12} The offense of improper handling of a firearm in a motor vehicle, R.C.

2923.16(B), requires the state to prove appellant “knowingly transport[ed] or [had] a

loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the

operator or any passenger without leaving the vehicle.” The offense of charge of

carrying a concealed weapon, R.C. 2923.12(A)(2), requires the state prove appellant

“knowingly carr[ied] or [had], concealed on [her] person or concealed ready at hand,

* * * [a] handgun other than a dangerous ordnance.”

       {¶ 13} Upon a comparison of the elements of each offense, we conclude that it is

possible to violate R.C. 2923.12 without also violating R.C. 2923.16. R.C. 2923.12

requires only that there be a concealed handgun while R.C. 2923.16 requires an

accessible, loaded firearm be located in a motor vehicle, but does not require that the

firearm be concealed. Compare State v. Johnson, 2d Dist. Montgomery No. 25773,




5.
2014-Ohio-2815, ¶ 29 (the court rejected the defense that the defendant could not

conform his conduct to one statute without violating the other because R.C. 2923.12 and

2923.16 are not in conflict with one another); State v. Mellinger, 4th Dist. Athens No.

1264, 1986 Ohio App. LEXIS 6157, *5-9 (Mar. 20, 1986) (appellant's conduct violated

both R.C. 2923.12 and 2923.16 because these “two code sections were passed and

amended simultaneously * * * and the manifest legislative intent is that R.C. 2923.12

should apply to all concealed weapons, despite the fact that the same conduct may also

violate one or more of the provisions of R.C. 2923.16”).

       {¶ 14} Therefore, we find these offenses are separate offenses and a second

prosecution of the carrying a concealed weapon did not violate the Double Jeopardy

Clause. Accord State v. Baker, 12th Dist. Warren No. CA96-12-123, 1997 Ohio App.

LEXIS 3656, *13 (Aug. 18, 1997) (separate prosecution of the charges of improper

handling of firearms in a motor vehicle, using weapons while intoxicated, and carrying a

concealed weapon did not violate the Double Jeopardy Clause because each offense

required proof of an element that the other offenses did not). Appellant’s sole assignment

of error is found not well-taken.

       {¶ 15} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Wood County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                      Judgment affirmed.




6.
                                                               State v. Campbell
                                                               C.A. No. WD-18-035




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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