State v. Tolbert

• Decision Date: 05 June 1991
• Docket Number: No. 90-666,90-666
• Parties: The STATE of Ohio, Appellant, v. TOLBERT, Appellee.
• Court: Ohio Supreme Court

Page 89

60 Ohio St.3d 89

573 N.E.2d 617

The STATE of Ohio, Appellant, v. TOLBERT, Appellee.

No. 90-666.

Supreme Court of Ohio.

Submitted Feb. 12, 1991.

Decided June 5, 1991.

Syllabus by the Court

1. To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment, a court must first apply the Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, the subsequent prosecution is barred. (Grady v. Corbin [1990], 495 U.S. 508, ----, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548, 561; Brown v. Ohio [1977], 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 applied and followed; State v. Thomas [1980], 61 Ohio St.2d 254, 261, 15 O.O.3d 262, 266, 400 N.E.2d 897, 903, explained and followed.)

2. An exception to the Blockburger test exists where the state is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. (Grady v. Corbin [1990], 495 U.S. 508, ----, 110 S.Ct. 2084, 2090, fn. 7, 109 L.Ed.2d 548, 561; Brown v. Ohio [1977], 432 U.S. 161, 169, fn. 7, 97 S.Ct. 2221, 2227, fn. 7, 53 L.Ed.2d 187; Ashe v. Swenson [1970], 397 U.S. 436, 453, fn. 7, 90 S.Ct. 1189, 1194, fn. 7, 25 L.Ed.2d 469 [Brennan, J., concurring]; Diaz v. United States [1912], 223 U.S. 442, 448-449, 32 S.Ct. 250, 251, 56 L.Ed.2d 500, applied and followed; State v. Thomas [1980], 61 Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph five of the syllabus, explained and followed.)

At about 9:20 a.m. on November 8, 1988, defendant-appellee Randy Tolbert assaulted the victim, Gail Renee Ochs. Following the assault, Ochs gave a statement to Police Sergeant Mark Hildebrand of the Cincinnati Police Department. Based on the information obtained from Ochs and an eyewitness to the assault, Hildebrand arrested Tolbert for assault. Then Ochs caused charges to be filed against Tolbert for misdemeanor assault, although neither Ochs nor Hildebrand knew at that time the full extent of Ochs's injuries. After Ochs signed the charges against Tolbert, on that same morning, she was transported to Christ Hospital for diagnosis and treatment of her injuries arising from the assault.

On November 9, 1988, Tolbert entered a plea of no contest to the misdemeanor assault in a municipal court proceeding. ¹ Subsequently, on the same day Tolbert entered his plea, Hildebrand was informed by an assistant police chief that Ochs had suffered injuries more severe than those that would characterize a simple assault. Hildebrand then attempted to verify the information by contacting Ochs's place of employment. Pursuant to the information he had obtained, Hildebrand attempted to amend the charges against Tolbert. Thereafter, Hildebrand signed a charge against Tolbert for felonious assault.

Tolbert was indicted on the charge of felonious assault by the Hamilton County Grand Jury on December 21, 1988. On January 19, 1989, Tolbert filed a motion to dismiss on the basis of the state's violation of his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. On March 3, 1989, the trial court granted Tolbert's motion to dismiss.

The state appealed and the judgment was affirmed on double jeopardy grounds.

The cause is before this court upon the allowance of a motion for leave to appeal.

Arthur M. Ney, Jr., Pros. Atty., and David L. Prem, Cincinnati, for appellant.

Sand & Stidham and Chuck R. Stidham, Cincinnati, for appellee.

HOLMES, Justice.

The single issue presented is whether Tolbert's conviction on the lesser included offense prevents the state from later prosecuting him on the greater offense because of the protection against double jeopardy of the Fifth Amendment to the United States Constitution. For the reasons that follow, we answer such query in the negative.

In Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, the United States Supreme Court held that the Fifth Amendment guarantee against double jeopardy ² is enforceable against the states through the Fourteenth Amendment to the United States Constitution. Therefore, we must review United States Supreme Court precedent, along with our own, to determine whether Tolbert may be prosecuted on the felonious assault charge.

The United States Supreme Court in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 recognized that the Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute "requires proof of a fact which the other does not." ³ Furthermore, in Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, the Supreme Court held that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he or she has already been acquitted or convicted on the lesser included offense. ⁴ It should be noted that the Blockburger test is not the exclusive means by which the protection against double jeopardy is deemed to apply to particular offenses. "Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires relitigation of factual issues already resolved by the first." Id. at 166-167, fn. 6, 97 S.Ct. at 2226; Grady v. Corbin (1990), 495 U.S. 508, ----, 110 S.Ct. 2084, 2092, 109 L.Ed.2d 548, 563. For example, in Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, where the defendant was acquitted on a charge of robbing one of the participants in a poker game, and the verdict was based on doubt that the accused was present at the robbery, the Supreme Court held that "principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims." Brown, supra, 432 U.S. at 167, fn. 6, 97 S.Ct. at 2226, fn. 6.

In deciding whether the state was precluded from charging a defendant with involuntary manslaughter of a robbery victim subsequent to the defendant's conviction for the robbery, this court in State v. Thomas (1980), 61 Ohio St.2d 254, 261, 15 O.O.3d 262, 266, 400 N.E.2d 897, 903, set forth a two-part double jeopardy inquiry:

" * * * One is whether the offenses of robbery and involuntary manslaughter are distinguishable under the Blockburger standard; i.e., do[es] each of the crimes of robbery and involuntary manslaughter require proof of a fact which the other does not?

"Two, there being a less serious offense for which the defendant has been previously tried, is the state prohibited from relitigating the factual issues already resolved in the prior trial, or do the facts of this case present an exception to the general rule prohibiting multiple prosecutions?"

The exception referred to in Thomas, supra, originated in Diaz v. United States (1912), 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, where the Supreme Court recognized an exception to a double jeopardy statute by holding that a defendant's conviction of assault and battery did not prevent a subsequent prosecution for homicide after the death of the victim. The Supreme Court, in Brown v. Ohio, supra, found the constitutional exception to "exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Id., 432 U.S. at 169, fn. 7, 97 S.Ct. at 2227, fn. 7; accord Grady v. Corbin, supra, 495 U.S. at ----, 110 S.Ct. at 2090, fn. 7, 109 L.Ed.2d at 561; Ashe v. Swenson, supra, 397 U.S. at 453, fn. 7, 90 S.Ct. at 1194, fn. 7 (Brennan, J., concurring) ("where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the 'same transaction' rule should be made to permit a separate prosecution.").

In the case sub judice, the first inquiry is whether the offenses of misdemeanor assault and felonious assault are distinguishable under the Blockburger standard (do both require proof of a fact which the other does not?). The offense of misdemeanor (or simple) assault is a violation of R.C. 2903.13, which provided ⁵:

"(A) No person shall knowingly cause or attempt to cause physical harm to another.

"(B) No person shall recklessly cause serious physical harm to another.

"(C) Whoever violates this section is guilty of assault, a misdemeanor of the first degree. * * * " H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1902.

The offense of felonious assault (as charged in this case) is a violation of R.C. 2903.11, which specifies:

"(A) No person shall knowingly:

"(1) Cause serious physical harm to another[.]

" * * *

"(B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. * * * "

It is conceded by the parties that misdemeanor assault is a lesser included offense of felonious assault. Thus, the greater offense, felonious assault, is by definition the same for purposes of double jeopardy as the lesser included offense, misdemeanor assault. See Brown v. Ohio, supra, 432 U.S. at 168, 97 S.Ct. at 2226. Consequently, the two offenses are indistinguishable under the Blockburger standard.

Although the two offenses are the same for purposes of double jeopardy, we must still determine whether the facts in this instance invoke the exception to the general rule. As we stated in Thomas, supra, 61 Ohio St.2d at 261, 15 O.O.3d at 266-267, 400 N.E.2d at 903, this "second query depends upon the circumstances existing at the time of the first trial. [And] [t]he reviewing court...