Case Summaries: Criminal - Domestic Violence Double Jeopardy Issues

Statutory Sanctions For Protection order Violation

A person who violates a R.C. 3113.31 protection order or consent agreement is subject to contempt action, or criminal prosecution under R.C. 2919.27, or both; but punishment for contempt must be credited against criminal punishment, and a criminal conviction precludes a contempt sanction arising out of same activity. R.C. 3113.31(L).

Keywords: double jeopardy

Date: 4/23/2002

Insufficient Evidence

Trial court had insufficient evidence to issue CPO to protect ex-wife from ex-husband because the ex-husbands actions in coming to her residence and "banging on the door" could not reasonably place wife in fear of domestic violence, especially since the parties visitation order provided for ex-husbands pick-up of their minor child at the ex-wifes residence on that day. Rush v. Rush, Case No. 74832 (Cuyahoga 11/18/99).

Keywords: danger, threat

Date: 4/23/2002

Double Jeopardy Only If Elements of Proof Identical

In a case that involved violation of a civil protection order in the District of Columbia, a divided United States Supreme Court decided that the double jeopardy bar does apply to contempt actions, but only if the contempt offense and the criminal offense require proof of identical elements.);  ("The Double Jeopardy Clause's protection attaches in nonsummary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the 'same elements' or "Blockburger" test. See, e.g., Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180. That test inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' within the Clause's meaning, and double jeopardy bars subsequent punishment or prosecution." (United States v. Dixon, et al., 509 U.S. 688, 689, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). The Supreme Court went on to address the issue of whether the same conduct may give rise to both contempt and criminal prosecutions. Overruling its prior decisions on this issue, the court stated that the mere fact that the same conduct would be proven in both the contempt and criminal cases does not invoke the Double Jeopardy Clause, as long as the elements of proof are not also the same for both cases.

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Date: 4/17/2002

Double Jeopardy Does Attach To A No Contest Plea Accepted By Court

Jeopardy attached at the time the trial court accepted the defendants no contest plea. A plea of no contest, once filed and accepted under the courts discretion, constitutes the attachment of jeopardy. Therefore, after the defendant pled no contest to the misdemeanor of domestic violence, the charge could not be raised to a felony charge upon receiving new information about previous domestic violence charges. State v. Goodman, Case No. 3220-M, 2002 Ohio App. LEXIS 802 (Medina 2/27/02).

Keywords: double jeopardy, danger, threat

Date: 4/17/2002

Double Jeopardy Barred

State and Federal Constitutions bar prosecution for criminal offense of violating protection order issued by domestic relations court, where domestic relations court previously issued suspended sentence after finding defendant in contempt for identical acts. The legislative prohibition against double punishment for same offense cannot overcome constitutional ban on double prosecution. State v. Vaneslow (1991), 61 Ohio Misc.2d 1 (Hamilton Co. Municipal). LAW REVIEW: "Ohio Revised Code Section 3113.31 and the Constitution: Ohio's Statutory Response to Domestic Violence and Its Double Jeopardy Infirmity," 19 U. Day. L. Rev. 317.

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Date: 4/17/2002

CPO Action Does Not Create Jeopardy

Defendant's motion to dismiss domestic violence charge, alleging that wife's unsuccessful petition for a civil protection order arising from the same incident operated to bar prosecution under doctrines of double jeopardy and collateral estoppel was denied by the trial court, which found that jeopardy does not attach in a civil action which is remedial, not punitive in nature. Collateral estoppel does not apply because parties are different in CPO and criminal domestic violence cases. Cleveland v. Hogan (Cleveland Municipal 1998), 92 Ohio Misc.2d 34.

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Date: 4/17/2002

Contra View, No Double Jeopardy

The Kentucky Supreme Court has held there is no double jeopardy violation in criminal prosecution following a criminal contempt conviction for violating a domestic violence order or restraining order in a divorce case, even though both proceedings arose from same incident. The court pointed out that in the contempt and criminal cases the parties are different, the statutes covering each case are different, and the elements required to prove each case are different. Kentucky v. Surge, Ky SupCt, Case No. 92-SC-287-DG, 8129/96, 22 FLR 1506. A New Mexico appeals court used the same reasoning to uphold a criminal prosecution for stalking and harassment after a contempt and jail sentence based on the same conduct. New Mexico v. Gonzales, NM CtApp, Case No. 16677, 4/4197, 23 FLR 1363. An Indiana appeals court reached the same conclusion on different grounds, finding that the Contempt sanction for violating a temporary restraining order was a suspended sentence designed to coerce compliance, and thus did not bar a subsequent criminal invasion of privacy charge stemming from same incident. Webster v. Indiana, Ind CtApp, Case No. 29 A02-9603-CR-1 78, 11/22/96, 23 FLR 1070. The Pennsylvania Superior Court upheld a burglary conviction arising from the same conduct at his estranged wife's home for which the defendant had been found guilty of indirect criminal contempt for violation of a protection order. The court noted the potential delay in criminal prosecution and said the domestic violence victim was entitled to the additional protection provided by an immediate contempt action. Pennsylvania v. Aikins, Case No. 00461 Pitt. 1991 (Pa Superior Ct 1/5/93).

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Date: 4/17/2002

Criminal and Contempt Actions Not Double Jeopardy

Prosecution for stalking after defendant had been convicted of misdemeanor contempt for violating a restraining order against stalking did not violate constitutional prohibition against double jeopardy. Contempt for violating restraining order creates a punishment enhancement, but does not define a crime, therefore doesn't count for double jeopardy analysis. People v. Kelley, 52 CA4th 568, 60 CR2d 653 (1997).

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Date: 4/17/2002

Law Review

See Mary Elizabeth Collins, "Mahoney v. Commonwealth: A Response to Domestic Violence," 29 New Eng. L. Rev. 981 (1995) (supporting the proposition that a combination of civil and criminal prosecution for domestic violence does not amount to double jeopardy).

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Date: 4/17/2002