[Cite as State v. Franklin, 2014-Ohio-4152.]
                           STATE OF OHIO, JEFFERSON COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )             CASE NO. 13 JE 32
V.                                               )
                                                 )                  OPINION
RAYMOND CORTEZ FRANKLIN,                         )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Jefferson County, Ohio
                                                 Case No. 13CR30

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Jane M. Hanlin
                                                 Prosecuting Attorney
                                                 16001 S.R. 7
                                                 Steubenville, Ohio 43952

For Defendant-Appellant                          Attorney R. Aaron Miller
                                                 P.O. Box 166
                                                 Wellsburg, West Virginia 26070




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                 Dated: September 17, 2014
[Cite as State v. Franklin, 2014-Ohio-4152.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Raymond Cortez Franklin, appeals from a
Jefferson County Common Pleas Court judgment convicting him of possession of
drugs following his no contest plea.
        {¶2}     On December 5, 2012, a Jefferson County Grand Jury indicted
appellant on one count of trafficking in drugs, a fourth-degree felony in violation of
R.C. 2925.03(A)(1)(C)(6)(b); and one count of possession of drugs, specifically
possession of heroin in an amount that equals or exceeds one gram but is less than
five grams, a fourth-degree felony in violation of R.C. 2925.11(A)(1)(C)(6)(b) (the first
indictment). Appellant eventually entered a guilty plea to the first indictment and the
trial court entered its judgment of sentence on February 14, 2013.
        {¶3}     On March 6, 2013, a Jefferson County Grand Jury indicted appellant on
one count of possession of drugs, specifically possession of heroin in an amount
greater than 10 grams but less than 50 grams, a second-degree felony in violation of
R.C. 2925.11(A)(C)(6)(d) (the second indictment). This is the charge at issue in the
present appeal.
        {¶4}     On July 10, 2013, appellant filed a Motion to Dismiss on the Basis of
Double Jeopardy or Collateral Estoppel. Appellant argued that the current charge
placed him twice in jeopardy for the same offense or act and asked that plaintiff-
appellee, the State of Ohio, be estopped from prosecuting him for an act which he
had already pleaded guilty to and was sentenced for.
        {¶5}     The trial court overruled appellant’s motion.   It found the following.
Appellant was arrested on October 23, 2012, and was apparently in possession of
two separate amounts of heroin. A 17-unit dose amount was immediately discovered
and appellant was charged with possessing that batch of heroin. It is alleged that
appellant also had on his person an additional 177 doses of heroin that were not
initially located. The state alleges that these 177 doses of heroin remained with
appellant as he was transported to the Jefferson County Jail.         The state further
contends that the heroin remained with appellant’s belongings, undetected, until the
police received a tip leading to its discovery on January 18, 2013. In the interim, on
                                                                                -2-


December 5, 2012, appellant was indicted for the original and separate 17 doses of
heroin. He entered a guilty plea to that indictment.
      {¶6}    The trial court went on to find that the first indictment alleged 17 doses
of heroin, which could not have possibly included the 177 doses alleged in the
second indictment. The court found these were separate offenses. The court noted
that had the indictments been reversed with the first indictment alleging 177 doses
and the second alleging 17 doses, there may have been a possibility that the 17
doses were included in the first 177 doses. But in this case the 17-dose indictment
came first and there was no chance that the 177 doses were included in that
indictment.
      {¶7}    Appellant subsequently entered a no contest plea to the second
indictment. The court entered findings that appellant was arrested on another drug
charge and had the drugs in this case hidden in his underwear when he was booked
into jail. Those drugs were later discovered after appellant bragged about it to a
cellmate. The offense for which appellant was jailed, leading to the discovery of the
drugs in this case, was Case Number 12-CR-211(C). The parties entered into an
agreed recommendation of sentence which the court followed.             The court then
sentenced appellant to two mandatory years in prison.
      {¶8}    Appellant filed a timely notice of appeal on September 20, 2013.
      {¶9}    Appellant raises two assignments of error, the first of which states:

      THE TRIAL COURT’S DECISION TO OVERRULE APPELLANT’S
      MOTION TO DISMISS WAS ERROR BECAUSE APPELLANT WAS
      TWICE PLACED IN JEOPARDY FOR THE SAME OFFENSE IN
      VIOLATION OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED
      BY      THE   FIFTH    AMENDMENT         TO      THE   UNITED     STATES
      CONSTITUTION AND SECTION 10, ARTICLE ONE OF THE OHIO
      CONSTITUTION.

      {¶10} Appellant argues the second indictment should have been dismissed.
                                                                               -3-


He notes that in both the first and second indictments, he was charged with
possession of heroin. He further notes both counts of possession were alleged to
have occurred at the same time and place. And he notes that the elements of the
offenses are identical except for the amounts of heroin involved, which he claims is
an element only for sentencing. Thus, appellant contends the state should have
been barred from prosecuting him on the second indictment due to his right against
double jeopardy.
       {¶11} The Double Jeopardy Clause of the United States Constitution bars
multiple prosecutions for the same offense. An appellate court reviews a trial court’s
denial of a motion to dismiss on double jeopardy grounds de novo. State v. Grimm,
5th Dist. No. 13-CA-25, 2014-Ohio-38, ¶12; State v. Trimble, 4th Dist. No. 13CA8,
2013-Ohio-5094, ¶5.
       {¶12} In determining whether two offenses are actually the same offense for
double jeopardy purposes, courts apply the test set out in State v. Best, 42 Ohio
St.2d 530, 330 N.E.2d 421 (1975). For double jeopardy to apply it must appear that:
(1) there was a former prosecution for the same offense; (2) the same person was in
jeopardy on the first prosecution; (3) the parties are identical; and (4) the particular
offense, on the prosecution of which the jeopardy attached, was such an offense as
to constitute a bar. Id. at 533.
       {¶13} The state offers State v. Wilder, 2d Dist. No. 20966, 2006-Ohio-1975,
as providing direct support of its position in this case. Wilder was arrested on April
26. At the time of her arrest, Wilder was in a car with two other individuals. She had
crack cocaine in her pocket. She was charged with, pleaded guilty to, and was
sentenced for possession of crack cocaine in an amount less than one gram. Wilder
was then indicted again, this time for possession of crack cocaine in an amount equal
to or in excess of 25 grams but less than 100 grams. The second indictment came
after Wilder testified at her co-defendant’s trial that the crack cocaine located in the
console of the car they were in belonged exclusively to her.      Wilder was tried and
convicted of possessing the second amount of cocaine. Prior to sentencing, she filed
                                                                               -4-


a motion to dismiss the charges alleging a violation of double jeopardy. The trial
court overruled her motion finding Wilder was charged with and convicted on two
separate charges. She appealed.
       {¶14} On appeal, the Second District found:

       We agree with the trial court that Wilder's possession of the 27 grams
       of cocaine was a separate and distinct offense from the possession of
       the one gram of cocaine retrieved from her pocket. Wilder had actual
       possession of the one gram of cocaine in her pocket. The State lacked
       evidence to establish Wilder's constructive possession of the distinct 27
       grams of cocaine retrieved from the console until she admitted at
       Hairston's trial that she alone purchased the 27 grams of cocaine
       earlier that day. Wilder's subsequent indictment and trial was not for the
       same offense that gave rise to her guilty plea. Each possession charge
       stemmed instead from distinct acts on the part of Wilder, thus her actual
       physical possession of one gram of cocaine in her pocket did not bar
       her prosecution for constructive possession of the 27 grams in the
       console. Because Wilder's offenses in the two cases were separate and
       distinct, with separate animus as to each, the trial court did not violate
       her constitutional right to avoid double jeopardy in overruling her motion
       for a new trial/dismissal.

Id. at ¶11. Thus, the Second District affirmed Wilder’s conviction.
       {¶15} Additionally, in State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461,
¶44, the court concluded the defendant could be sentenced for multiple offenses of
possession of cocaine and crack cocaine when police found separate quantities of
cocaine and crack cocaine in separate locations, the separate quantities were stored
in different types of containers, and the amount of each quantity of drugs differed
significantly from the other quantity of drugs.
       {¶16} In the present case, appellant’s second conviction is not barred by the
                                                                                -5-


Double Jeopardy Clause. Like the defendants in Wilder and Brown, appellant was
convicted of possessing two separate and distinct quantities of drugs.
       {¶17} The quantity that led to his first indictment and conviction was 17 unit
doses of heroin. Appellant was arrested and taken to jail based on this quantity of
heroin.   At the jail, appellant’s personal belongings were placed into storage.
Appellant entered a guilty plea to possession of heroin in an amount equal to or
greater than one gram but less than 5 grams.
       {¶18} After his guilty plea and sentence in the first case, appellant was
indicted for possessing an amount of heroin equal to or greater than 10 grams but
less than 50 grams.       This indictment stemmed from 177 unit doses of heroin
allegedly found hidden in appellant’s underwear that were with his personal
belongings in the jail storage. Police allegedly located this heroin after a tip from an
informant. The indictments in both cases allege appellant possessed the quantities
of heroin on October 23, 2012, the day of his initial arrest.
       {¶19} The two possession offenses with which appellant was charged dealt
with separate quantities of heroin. The first 17-dose quantity was found the day
appellant was arrested. This was the reason he was arrested. The second 177-dose
quantity was not found until months later and was found hidden in appellant’s
underwear. Thus, the two offenses with which appellant was charged arose from two
separate and distinct acts of possession. Therefore, the trial court properly overruled
appellant’s motion to dismiss.
       {¶20} Accordingly, appellant’s first assignment of error is without merit.
       {¶21} Appellant’s second assignment of error states:

       APPELLANT’S MOTION TO DISMISS WAS ERROR BECAUSE OF
       THE DOUBLE JEOPARDY CLAUSE’S ANCILLARY PRINCIPLE OF
       COLLATERAL ESTOPPEL, OR ISSUE PRECLUSION.

       {¶22} Here appellant argues he is entitled to the ancillary protection provided
by principles of collateral estoppel and issue preclusion. He contends the state is
                                                                                -6-


attempting to re-litigate the same facts that were present in the first indictment.
Appellant asserts: there was a final judgment in the first case; the issue in both
cases is the same, the possession of heroin; he admitted in the first case that the
allegation of possession of heroin was true; the issue was decided in the first case;
and there is privity between the parties in both cases. For these reasons, appellant
argues, collateral estoppel bars his prosecution in the second case.
       {¶23} The doctrine of collateral estoppel prevents the re-litigation of an
ultimate fact or issue once it has been determined by a final judgment. The Fifth
Amendment’s Double Jeopardy Clause incorporates the doctrine of collateral
estoppel in criminal proceedings. State v. Dorsey, 5th Dist. No. 11 CA 39, 2012-
Ohio-611, ¶32, citing Schiro v. Farley, 510 U.S. 222, 232, 114 S.Ct. 783 (1994); Ashe
v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189 (1970).
       {¶24} Pursuant to the doctrine of collateral estoppel, successive prosecutions
will be barred in some circumstances where the second prosecution requires re-
litigation of factual issues already resolved by the first prosecution. State v. Tolbert,
60 Ohio St.3d 89, 91, 573 N.E.2d 617 (1991), citing Brown v. Ohio, 432 U.S. 161,
166-167, 97 S.Ct. 2221, fn.6 (1977), and Grady v. Corbin, 495 U.S. 508, 110
S.Ct.2084 (1990). But “a mere overlap in proof between two prosecutions does not
establish a double jeopardy violation.” In re Burton, 160 Ohio App.3d 750, 2005-
Ohio-2210, 828 N.E.2d 719, ¶10, quoting United States v. Felix, 503 U.S. 378, 386,
112 S.Ct. 1377 (1992).
       {¶25} Here, the ultimate issue in the first case was whether appellant
possessed the 17 unit doses of heroin. The ultimate issue in the present case is
whether appellant possessed the 177 unit doses of heroin allegedly found in his
underwear. As the trial court pointed out, there is no way the 177 doses could have
been contained in the 17 doses. Appellant was charged with and convicted of two
separate acts of possession of heroin. Had the matter gone to trial in this case, there
would have been no need to re-litigate whether appellant possessed the 17 doses of
heroin. The trial court would have focused on whether appellant possessed the 177
                                                                            -7-


doses of heroin. Thus, the doctrine of collateral estoppel did not bar appellant’s
prosecution in this case.
      {¶26} Accordingly, appellant’s second assignment of error is without merit.
      {¶27} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
