COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73437 STATE OF OHIO : ACCELERATED DOCKET : JOURNAL ENTRY Plaintiff-Appellant : AND : OPINION -vs- : : PER CURIAM JERRY COLEGROVE Defendant-Appellee : DATE OF ANNOUNCEMENT : JULY 16, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-351205 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Deborah Naiman, Esq. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: Mark Witt, Esq. 6209 Barton Road North Olmsted, Ohio 44070-3856 PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Local App.R. 25, the record from the Cuyahoga County Court of Common Pleas, oral argument and briefs of -2- counsel. The state of Ohio, plaintiff-appellant, assigns two errors for review. This court, finding error, reverses the trial court's decision and remands for further proceedings. On April 30, 1997, defendant-appellee, Jerry Colegrove, pulled up next to two girls under the age of 13 years in his automobile. He told the girls he would give them $2.00 if they would do a favor for him. He then backed his vehicle into a driveway. The girls followed the vehicle and walked to the passenger window. Defendant- appellee leaned over and handed one of the girls two one dollars bills. At this time, one of the girls saw defendant-appellee was naked from the waist down and was masturbating. Both girls ran from the vehicle and reported the incident to school officials and gave full descriptions of defendant-appellee and his vehicle. On May 1, 1997, defendant-appellee was arrested and charged with public indecency and pled guilty to said offense in the Cleveland Municipal Court. Subsequently, the Cuyahoga County Grand Jury indicted defendant-appellee on two counts of kidnapping in violation of R.C. 2905.01 (with repeat violent offender, sexual motivation, and sexually violent predator specifications) and two counts of disseminating matter harmful to juveniles in violation of R.C. 2907.31. Upon motion, the trial court dismissed the indictments citing defendant's right to be free from double jeopardy. The State of Ohio timely appeals. Plaintiff-appellant states as its first assignment of error: I. A TRIAL COURT COMMITS REVERSIBLE ERROR WHEN IT IMPROPERLY DISMISSES AN INDICTMENT ON THE GROUNDS OF DOUBLE JEOPARDY WHEN IN FACT THE PENDING CHARGE AND THE -3- CHARGE TO WHICH DEFENDANT HAS PREVIOUSLY PLED GUILTY EACH CONTAIN ELEMENTS NOT CONTAINED IN THE OTHER. Plaintiff-appellant argues the trial court erred in dismissing the charges of disseminating based upon double jeopardy. More specifically, the trial court held that the indictments charging disseminatingmatter harmful to juveniles were based upon the same facts and circumstances upon which defendant-appellee was previously convicted of public indecency. We disagree. It is well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. State v. Lovejoy (1997), 79 Ohio St.3d 440, 443. As stated by the United States Supreme Court in United States v. Dixon (1993), 509 U.S. 688, 695-696: The Double Jeopardy Clause, ***, provides no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This protection applies both to successive punishments and to successive prosecutions for the same criminal offense ***. In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is being punished or tried cannot survive the same elements test, the double jeopardy bar applies ***. The same- elements test, sometimes referred to as the Blockburger test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecution. In this case, the trial court determined that disseminating matter harmful to children was barred by double jeopardy since that charge stemmed from the same set of facts upon which defendant was previously found guilty of public indecency. However, that is not the standard which is to be applied. Rather than looking at the -4- conduct of the accused, this court must review the elements of the crime for which he/she is being charged. Disseminating matter harmful to children is described in R.C. 2907.31 which states in pertinent part: (A) No person, with knowledge of its character or content, shall recklessly do any of the following: (1) Sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile any material or performance that is obscene or harmful to juveniles. Public indecency is described in R.C. 2907.09 which states in pertinent part: (A) No person shall recklessly do any of the following, under circumstances in which his or her conduct is likely to be viewed by and affront others, not members of his or her household: (1) Expose his or her private parts, or engage in masturbation. We agree with plaintiff-appellant in that these crimes contain certain elements not required of the other. Clearly, public indecency requires an act by the offender directed at an individual not a member of the offenders household. Whether or not the victim is a member of the offenders household is irrelevant to a charge of dissemination matter harmful to children. Moreover, to violate R.C. 2907.31, the victim must be a juvenile. This is not an element necessary for a violation of public indecency. Finally, we note that a review of the Committee Comments for each of the statutes demonstrates the different character/nature of each crime. For all of these reasons, we find the trial court erred in dismissing the indictment charging disseminating harmful matter to -5- a juvenile. Plaintiff-appellant's first assignment of error is well taken. Plaintiff-appellant states as its second assignment of error: II. R.C. 2905.01, KIDNAPPING, DOES NOT REQUIRE THAT THE STATE PROVE AN UNDERLYING FELONY OCCURRED, ONLY THAT THE OFFENDER HAD PURPOSE TO COMMIT THAT UNDERLYING FELONY, AND A TRIAL COURT COMMITS REVERSIBLE ERROR WHEN IT BASES ITS DISMISSAL OF KIDNAPPING BASED ON THE ARGUMENT THAT THE STATE MUST PROVE THAT THE UNDERLYING FELONY OCCURRED. Plaintiff-appellant argues the trial court erred in dismissing the indictments charging kidnapping based on double jeopardy. The trial court held a required element that needs to be proven is that defendant facilitated the commission of a felony. Since the charges of disseminating matter harmful to a juvenile had been dismissed, the trial court reasoned the indictments must be dismissed. For the following reasons, we disagree with the trial court's reasoning. The indictment, which charged defendant with kidnapping in violation of R.C. 2905.01, states in pertinent part that defendant: *** by deception or by any (sic) means, did remove a child under the age of 13, to-wit, Kristina Russo, d.o.b. September 26, 1985, from the place where she was found for the purpose of facilitating the commission of a felony and/or for the purpose of engaging in sexual activity as defined in Ohio Revised Code Section 2907.01, with her against her will. Pursuant to the indictment and the clear language of R.C. 2905.01, kidnapping, in this case, only requires the purpose to commit a felony or to engage in sexual activity. Whether or not the felony or sexual activity actually took place is irrelevant to the charge. Moreover, we agree with plaintiff-appellant that this -6- issue is anal the purpose to commit a theft and/or theftogous to the bu offense. In such a case, the commission of a theft is irrelevant. It is only that the defendant had the purpose to commit the theft. See State v. Cook (July 1, 1993), Cuyahoga App. No. 62981, unreported; State v. McDougal (Dec. 18, 1997), Cuyahoga App. No. 71276. For these reasons, the trial court erred in dismissing the indictments charging defendant-appellee of kidnapping.1 Plaintiff- appellant's second assignment of error is well taken. Reversed and remanded. 1We wish to stress that the conclusion reached today has no bearing on the merits of the state's case and was reached solely upon a double jeopardy analysis. -7- 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 Common Pleas Court 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE MICHAEL J. CORRIGAN, 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 .