COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72678 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION EVETTE FRANCE : : PER CURIAM Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 4, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-348,203 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor PATRICK J. McCARTHY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: VICKIE LYNN WARD Attorney at Law 1367 East Sixth Street, #400 Cleveland, Ohio 44114 PER CURIAM: 2 This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. The record reflects that a grand jury returned a two-count indictment against defendant-appellee, Evette France ( appellee ), charging her with two counts of assault, in violation of R.C. 2903.13. Each count included a peace officer specification. On May 12, 1997, appellee moved to dismiss the charges against her on the basis of double jeopardy. Specifically, appellee argued that she was charged with and pled guilty to disorderly conduct in Cleveland Municipal Court based on the same conduct giving rise to the charges for assault in the Cuyahoga County Court of Common Pleas. The trial court granted appellee's motion and dismissed the charges against her. The state timely appeals under R.C. 2945.67(A) and assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY WHERE A VIOLATION OF R.C. 2903.13 ASSAULT ON A POLICE OFFICER, REQUIRES PROOF OF AN ADDITIONAL FACT THAT IS NOT REQUIRED TO PROVE A VIOLATION OF MUNICIPAL ORDINANCE 605.03(A)(1), AGGRAVATED DISORDERLY CONDUCT. It is well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. United States v. Dixon (1993), 509 U.S. 688, 696 citing North Carolina v. Pearce (1969), 394 U.S. 711, 717; State v. Lovejoy (1997), 79 Ohio St.3d 440, 443. An offense and all its lesser 3 included offe requires proof of an additional fact which (1977), 432 U.S. 161, 166nses constitute Blockburger v. United States (1932), 284 U.S. 299, 304; State v. Tolbert (1991), 60 Ohio St.3d 89, 91. If proof of an additional fact is required in order to sustain a conviction for one of the offenses, then the accused may be prosecuted for both offenses without violating the protection afforded by the Double Jeopardy Clause. Id. Notwithstanding the above, we find it unnecessary to address the merits of the state's argument as evidence of appellee's municipal offense and its disposition in the municipal court are not part of the trial court record. The record reflects that during the hearing, appellee produced documents allegedly related to the municipal court charge as well as an entry disposing of that charge. This documentary material, however, was never admitted into evidence and, consequently, is not part of the record before this court.1 Based on the record we have before us, we find no evidence of double jeopardy and hereby reverse the ruling of the trial court granting appellee's motion to dismiss. 1We acknowledge that the state has attached a copy of the complaint filed in municipal court to its brief on appeal. This evidence, however, cannot be considered for the first time on appeal where it was not part of the record in the court below. See State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus. 4 The judgment of the Cuyahoga County Common Pleas Court is hereby reversed, and this cause is remanded for proceedings not inconsistent with this opinion. 5 It is ordered that appellant recover of appellee its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. __________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE __________________________________ TIMOTHY E. McMONAGLE, JUDGE __________________________________ LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .