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State v. Pope

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

STATE OF OHIO, Plaintiff-Appellee
v.
KENNETH POPE, Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-1095.

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          LARRY J. DENNY, Atty. Reg. No. 0020430, and MICHAEL MILLS, Atty. Reg. No. 0092133, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 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.

         Facts 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 degree.

         {¶ 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 five years.

         {¶ 6} Pope now appeals from his conviction, raising one assignment of error for this court's review.

         Assignment of Error

         {¶ 7} Pope's sole assignment of error is as follows:

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 Pope's arguments.

         Standard of Review ...


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