Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No.
0093662, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
J. DENNY, Atty. Reg. No. 0020430, and MICHAEL MILLS, Atty.
Reg. No. 0092133, Attorney for Defendant-Appellant
1} Defendant-appellant, Kenneth Pope, appeals from
the decision of the Montgomery County Court of Common Pleas
overruling his motion to dismiss an indictment charging him
with one count of improperly handling a firearm in a motor
vehicle while intoxicated. In support of his appeal, Pope
claims that his constitutional protection against successive
prosecutions under the Double Jeopardy Clause prevented the
State from prosecuting him for that offense because he had
already been charged and convicted for operating a vehicle
while under the influence of alcohol ("OVI") in a
different court for the same incident. Specifically, Pope
claims that the OVI offense is a lesser included offense and
allied offense of similar import to the improperly handling a
firearm charge. For the reasons outlined below, the judgment
of the trial court will be affirmed.
and Course of Proceedings
2} On April 6, 2016, Pope was involved in a
single-vehicle accident in Dayton, Ohio, when he drove into a
cement curb and disabled his vehicle. At the scene of the
accident, responding police officers discovered Pope sitting
in the driver's seat of his vehicle and detected the odor
of alcohol emanating from the vehicle. Pope admitted to the
officers that he had consumed alcohol that evening and
submitted to a breathalyzer test, which revealed his blood
alcohol level was over the legal limit. During the encounter,
Pope also admitted that he was in possession of a firearm.
The officers thereafter searched Pope's vehicle and
discovered a loaded firearm underneath the driver's seat.
3} As a result of that incident, Pope was arrested
and charged in the Dayton Municipal Court with misdemeanor
OVI and failure to control violations. In relation to the
same incident, Pope was subsequently indicted in the
Montgomery County Court of Common Pleas for improperly
handling a firearm in a motor vehicle while intoxicated in
violation of R.C. 2923.16(D)(1), a felony of the fifth
4} While the Montgomery County case was pending, on
June 10, 2016, Pope was convicted in the Dayton Municipal
Court for the OVI offense, a first-degree misdemeanor in
violation of R.C. 4511.19(A)(1)(a). Following that
conviction, on June 15, 2016, Pope filed a motion to dismiss
the Montgomery County indictment on grounds that his
constitutional protection against double jeopardy prohibited
the State from prosecuting him for improperly handling a
firearm in a motor vehicle while intoxicated. In support of
that claim, Pope alleged that his prior OVI conviction was a
lesser included offense and allied offense of similar import
to the improperly handling a firearm charge.
5} On July 5, 2016, the trial court issued a written
decision overruling Pope's motion to dismiss the
indictment. Following that decision, Pope entered a no
contest plea to the indicted charge, which the trial court
accepted. After finding Pope guilty, the trial court
sentenced Pope to community control sanctions not to exceed
6} Pope now appeals from his conviction, raising one
assignment of error for this court's review.
7} Pope's sole assignment of error is as
THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S
MOTION TO DISMISS.
8} Under his single assignment of error, Pope
contends that the trial court erred in overruling his motion
to dismiss the indictment charging him with improperly
handling a firearm in a motor vehicle while intoxicated. In
support of this claim, Pope maintains that his constitutional
protection against double jeopardy should have barred the
State from prosecuting him on the improperly handling a
firearm offense because he claims that his prior OVI
conviction in the Dayton Municipal Court is a lesser included
offense. Pope also claims that the double jeopardy protection
prohibits the State from prosecuting him for both the OVI and
improperly handling a firearm offenses because they are
allied offenses of similar import. We disagree with both of
of Review ...