State v. Bickerstaff
| Decision Date | 01 July 1981 |
| Citation | 2 Ohio App.3d 153,440 N.E.2d 1376 |
| Parties | , 2 O.B.R. 168 The STATE of Ohio, Appellant, v. BICKERSTAFF, Appellee. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
Where two indictments against the defendant are consolidated for trial, and the defendant pleads guilty to one of the counts in one of the indictments and then argues that all of the counts in the other indictment are the same offense as the one to which she pled guilty, trial on those counts could not be considered double jeopardy as a second prosecution for the same offense, since there was only one prosecution and the defendant, by the plea of guilty, elected to sever a part of the prosecution.
Gregory W. Happ, Pros. Atty., for appellant.
James R. McIlvaine, Wadsworth, for appellee.
The state appeals the trial court's dismissal of three counts of aggravated robbery and three counts of aggravated murder committed during an aggravated robbery on the basis of double jeopardy because the court had accepted a plea of guilty to one count of grand theft which the defendant claims was the underlying theft offense on which the aggravated robbery was predicated. We reverse.
Teresa Bickerstaff, a seventeen year old, was indicted on November 10, 1980, for the aggravated murders by prior calculation and design of her mother and two younger brothers. She was also charged with the grand theft of her father's car and guns occurring at the same time on August 29, 1980.
On January 8, 1981, the state obtained additional indictments for three counts of aggravated murder:
" * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit aggravated robbery, in violation of Ohio Revised Code 2903.01."
And three more counts of aggravated robbery:
" * * * purposely and in attempting or committing a theft offense as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, upon Fred Bickerstaff, Sr. did have a deadly weapon or dangerous ordinance, to-wit: a gun, on or about his person or under his control, and/or in attempting or committing a theft offense, upon Fred Bickerstaff, Sr. as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, did inflict, or attempted to inflict serious physical harm on another, * * *."
Thereafter upon motion of the state, the trial court consolidated both indictments totaling ten counts for trial. On May 19, the case was called for trial. The defendant then withdrew her not guilty plea to the grand theft charge and entered a plea of guilty. The trial court proceeded to make inquiry of the defendant pursuant to Crim.R. 11 and accepted the plea. The defendant immediately produced a written motion to dismiss all six counts of the January 8 indictment (aggravated robbery and aggravated murder) on the basis of double jeopardy.
The defendant argued that all counts arose out of the same incident and that the grand theft is a lesser included offense of the aggravated robbery. She relied essentially on Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. The trial court sustained the motion and the state now appeals assigning the following errors.
For purposes of this opinion we will discuss the third assignment first, then merge the first and second into a further discussion. We summarily reject the fourth assignment as there is no showing that prosecutorial misconduct was involved or formed a basis for the trial court's ruling.
We wish to emphasize that we are not in any way deciding the question of whether grand theft is a lesser included offense of aggravated robbery and aggravated murder (felony) either for purpose of the double jeopardy clause or R.C. 2941.25 or the doctrine of lesser included offenses. We will decide those issues if and when they are properly presented to us after trial upon the merits.
Briefly the state's argument is that assuming this is a second prosecution, that double jeopardy does not attach since grand theft is not a lesser included offense of aggravated robbery or in turn aggravated murder. However, we do not feel that we reach that issue in this cause because of the manner the indictments are drawn.
The indictment for grand theft specifies the property stolen as the guns and...
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State v. Leonard Jenkins, 84-LW-4141
... ... principles apply here or whether defendant can prospectively ... waive uncertain future rights. One Ohio appellate court has ... ruled that such a claim is not legally cognizable in a ... comparable situation. See State v. Bickerstaff ... (1982), 2 Ohio App.3d 153, 155. But cf. State v ... Johnson (1983), 6 Ohio St.3d 430, cert. granted (Jan ... 23, 1984), 104 S.Ct ... The ... fact that other defendants have recently asserted similar ... claims suggests that this defendant ... ...
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State v. Bickerstaff
...that the guilty plea was merely a severance of a single prosecution and not a violation of double jeopardy. See State v. Bickerstaff (1981), 2 Ohio App.3d 153, 440 N.E.2d 1376. This court subsequently overruled appellant's motion for leave to On remand, the jury found appellant not guilty o......
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State v. Davis
... ... Inasmuch as only Eric Davis and Teresa Bickerstaff 1 survive to describe the events that transpired on the night of the tragedy unfolded in the record before us, we look to Davis' testimony at trial and to his taped statements for some background of the cause ... Davis testified that, having engaged in at least two telephone ... ...
- State v. Teresa Bickerstaff