[Cite as State v. Rocubert, 2024-Ohio-395.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

SHELBY COUNTY

STATE OF OHIO,

CASE NO. 17-23-11

 PLAINTIFF-APPELLEE,

 v.

DAYREN ROCUBERT, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court

Trial Court No. 23CR000033

Judgment Affirmed

Date of Decision: February 5, 2024

APPEARANCES:

Christopher R. Bucio for Appellant

Timothy S. Sell for Appellee
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WALDICK, J.

{¶1} Defendant-appellant, Dayren Rocubert (“Rocubert”), appeals the July 

14, 2023 judgment of the Shelby County Court of Common Pleas denying 

Rocubert’s motion to dismiss on the grounds of double jeopardy. For the reasons 

set forth below, we affirm.

Factual and Procedural Background

{¶2} This case stems from a December 24, 2022 traffic crash on Interstate 75 

in Shelby County, which resulted in four persons and an unborn child being 

killed. Rocubert is alleged to have been operating the motor vehicle that caused the 

deaths of the victims.

{¶3} On December 28, 2022, a complaint was filed in the Sidney Municipal 

Court, charging Rocubert with five misdemeanor counts of what the parties to that 

case apparently believed to be the crime of Vehicular Homicide.1 On January 30, 

2023, Rocubert entered a negotiated plea of no contest in that case. Specifically, 

Rocubert pled no contest to the first count of the complaint and, in exchange, the 

prosecution dismissed the remaining four counts. The trial court accepted the no 

contest plea, Rocubert waived reading of the facts, and the trial court entered a 

finding of guilt as to that count. On October 3, 2023, Rocubert was sentenced in the 

Sidney Municipal Court case to 180 days in jail.

1As will be discussed below, it is actually unclear whether Rocubert was charged with Vehicular Homicide 

or with Vehicular Manslaughter in the municipal court case.
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{¶4} On February 16, 2023, after Rocubert had entered his no contest plea to 

the misdemeanor charge and been found guilty on that count in municipal court, the 

Shelby County Grand Jury returned an indictment against Rocubert in the instant 

case, charging him with five counts of Aggravated Vehicular Homicide, each count 

a second-degree felony in violation of R.C. 2903.06(A)(1)(a).

{¶5} On February 22, 2023, an arraignment was held and Rocubert pled not 

guilty to all charges in the indictment.

{¶6} On March 27, 2023, Rocubert filed a motion to dismiss the indictment 

on the basis of double jeopardy, asserting that prosecution on the felony counts in 

the indictment was precluded as a result of the negotiated plea he had entered in 

municipal court.

{¶7} On May 26, 2023, an evidentiary hearing was held on the motion to 

dismiss. At the hearing, the parties entered two stipulated exhibits into 

evidence: Joint Exhibit I, being certain records from the Sidney Municipal Court 

case, and Joint Exhibit II, the indictment in this case. 

{¶8} At that hearing, David Busick, the law director for the City of Sidney, 

was called as a witness by Rocubert. Busick testified that on January 30, 2023, a 

pretrial was held in the municipal court case. At that time, Busick was aware that 

the Ohio State Highway Patrol had obtained a sample of Rocubert’s blood on the 

day of the crash, and the blood had been sent to the state crime lab to be tested for 

the presence of alcohol or drugs. As of the January 30, 2023 pretrial in municipal 
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court, the lab results were still pending, a fact which Busick discussed with 

Rocubert’s counsel. Busick and Rocubert’s counsel also discussed whether they 

should wait until the lab results were back before resolving the case, and Busick 

acknowledged that he had pushed for a change of plea at the January 30th 

pretrial. Busick testified that he had wanted to resolve the case because there were 

approximately 30 members of the victims’ family present at the pretrial, and he 

hoped to accommodate the family by reaching a resolution. Busick testified that 

defense counsel had asked at that time what would happen if Rocubert pled guilty 

and then the lab results were unfavorable to him. Busick testified that he believed 

he told defense counsel at least three times that double jeopardy would not attach 

because a felony offense would be a separate offense. Busick acknowledged that 

he told defense counsel that the troopers had not smelled alcohol when interacting 

with Rocubert after the crash, that the weather may have been a factor, and that 

Busick did not anticipate that the lab results would come back positive. After that 

information was shared with defense counsel at the January 30th pretrial, Busick 

and Rocubert’s counsel worked out a negotiated plea arrangement as reflected by 

the documents contained in Joint Exhibit I. That plea arrangement included 

dismissal of Counts B, C, D, and E of the misdemeanor complaint in exchange for 

Rocubert’s plea to Count A. Busick testified that nowhere on the plea form did it

indicate that the dismissal of the four counts was without prejudice. On crossexamination by the state, Busick testified that his office with the City of Sidney is 
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separate and independent from the office of the county prosecutor in Shelby County, 

that Busick makes his own decisions relating to the cases he handles, and that no 

discussion was had with the Shelby County Prosecutor prior to resolving the 

misdemeanor charges with the negotiated plea. Busick also clarified that it was 

probably urine, not blood, that had been taken from Rocubert for testing. Busick 

confirmed that, at the time the negotiated plea was entered in municipal court, the 

results of the testing were still pending.

{¶9} Sergeant Jordan Monnin of the Ohio State Highway Patrol was also 

called as a witness by the defense at the hearing on Rocubert’s motion to 

dismiss. Monnin testified that he was present at the January 30, 2023 pretrial at 

Sidney Municipal Court, although he was not with the law director and defense 

counsel for most of the discussions about the case. Monnin agreed that he had let 

Law Director Busick know that there had been no obvious indicators at the time of 

the crash that Rocubert was extremely intoxicated but that, at the time of the pretrial, 

Monnin had also mentioned that the lab results were anticipated in a matter of 

hours. Finally, Monnin testified on cross-examination that he specifically heard 

Busick telling defense counsel at the January 30th pretrial that if the urine came 

back positive for drugs, additional charges could be brought.

{¶10} The last witness called by the defense at the motion hearing was Cory 

Suchland, a probation officer with the Sidney Municipal Court. Suchland testified, 
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without elaborating on the details, that he had spoken to Rocubert’s counsel when 

preparing to interview Rocubert for the presentence investigation.

{¶11} On July 14, 2023, the trial court filed a judgment entry denying the 

motion to dismiss.

{¶12} On July 26, 2023, Rocubert filed this appeal, in which he raises one 

assignment of error for our review.

Assignment of Error

[Rocubert’s] fifth amendment [sic] right protection [sic] against 

double jeopardy were [sic] violated as a result of the Indictment 

filed against him in the Shelby County Common Pleas Court, 

under Case No. 23CR000033, after pleading in the Sidney 

Municipal Court to a lesser included charge contained in the 

indictment.

Analysis

{¶13} In the sole assignment of error, Rocubert asserts that the trial court 

erred in failing to grant Rocubert’s motion to dismiss the indictment pending against 

him. Rocubert argues that prosecuting him on the indictment, which charges five 

felony counts of Aggravated Vehicular Homicide, subjects him to double 

jeopardy. Rocubert’s claim is based on the fact that he was previously charged with 

five misdemeanor counts of what he terms Vehicular Homicide, stemming from the 

same incident and relating to the same five victims, and that he then entered a 

negotiated plea of no contest to, and was found guilty of, one of those counts in 

exchange for a dismissal of the other four misdemeanor charges.
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{¶14} The Fifth Amendment to the United States Constitution provides that 

no person shall “be subject for the same offence to be twice put in jeopardy of life 

or limb.” That constitutional guarantee prohibits three distinct scenarios: “(1) a 

second prosecution for the same offense after acquittal, (2) a second prosecution for 

the same offense after conviction, and (3) multiple punishments for the same 

offense.” State v. Gustafson, 76 Ohio St.3d 425, 668 N.E.2d 435 (1996), citing 

United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), 

citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969). 

{¶15} “Appellate courts apply a de novo standard of review when reviewing 

the denial of a motion to dismiss an indictment on the grounds of double jeopardy.” 

State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, ¶ 20.

{¶16} In this case, we shall first address Rocubert’s double jeopardy claim 

with regard to the four misdemeanor charges that were dismissed as part of the 

negotiated plea that he entered in Sidney Municipal Court.

{¶17} As an initial matter, we note that the portions of the municipal court 

record included in the record on appeal, including the written plea agreement, the 

transcript of the plea hearing, and the judgment entry memorializing the no contest 

plea to the first count in the complaint and dismissing the four remaining counts, are 

silent as to whether the dismissal of the four counts was with or without 

prejudice. However, several of Ohio’s appellate districts have held that “when a 
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judgment dismissing a criminal complaint fails to specify that a dismissal is with 

prejudice, it is to be presumed that the dismissal was intended to be without 

prejudice.” State v. Hunter, 197 Ohio App.3d 689, 694, 2012-Ohio-189, citing State 

v. Rodriguez, 2d Dist. Darke No. 1722, 2008-Ohio-3377, ¶ 15; State v. Brown, 8th 

Dist. Cuyahoga No. 84229, 2004-Ohio-5587, ¶ 8. Based upon that presumption, we 

treat the January 30, 2023 Sidney Municipal Court judgment as dismissing the four 

counts (Counts B, C, D, and E) without prejudice.

{¶18} Because the dismissal of Counts B, C, D, and E in the misdemeanor 

complaint was without prejudice, we find that State v. Soto, 158 Ohio St.3d 44, 

2019-Ohio-4430, is dispositive of Rocubert’s double jeopardy claims relating to the 

crimes charged in those four counts. In Soto, the Supreme Court of Ohio held that 

the dismissal of a criminal charge pursuant to a negotiated plea agreement does not 

bar further prosecution for the conduct at issue in the dismissed offense. Id. In so 

holding, the Ohio Supreme Court noted that “[i]t is axiomatic that when a charge is 

dismissed before jeopardy attaches, the double-jeopardy protections do not prevent 

subsequent prosecution for the dismissed charge.” Id., at ¶ 16. “For charges to 

which the defendant did not plead guilty, jeopardy does not attach until a jury is 

empaneled or, in a bench trial, when the judge starts taking evidence.” Id., citing 

State v. Gustafson, supra, at 435. See, also, C.K. v. State, 145 Ohio St.3d 322, 2015-

Ohio-3421, ¶ 15. Put another way, “an accused must suffer jeopardy before he can 
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suffer double jeopardy.” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 

43 L.Ed.2d 265 (1975). 

{¶19} For those reasons, and on the basis of the authority cited, we find 

Rocubert’s double jeopardy claim as to the crimes at issue in the four dismissed 

misdemeanor counts to be without merit.

{¶20} We now turn our attention to Rocubert’s double jeopardy argument 

regarding the conduct at issue in the misdemeanor charge to which he pled no 

contest, and on which he was convicted and sentenced, in Sidney Municipal Court. 

{¶21} At the outset, we note that while Rocubert was prosecuted in 

municipal court by the City of Sidney and the subsequent indictment in the common 

pleas court was brought by the county prosecutor’s office in the name of the State 

of Ohio, that does not affect the claim of double jeopardy. State v. Zima, 102 Ohio 

St.3d 61, 2004-Ohio-1807, ¶ 17, citing State v. Best, 42 Ohio St.2d 530, 533, 330 

N.E.2d 421 (1975). “[T]he state and the city are parts of a single sovereignty, and 

double jeopardy stands as a bar to a prosecution by one, after an accused has been 

in jeopardy for the same offense in a prosecution by the other.” Best at 533, citing 

Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

{¶22} As the question here is whether prosecution on the indicted charge of 

Aggravated Vehicular Homicide would violate the prohibition against double 

jeopardy after Rocubert was convicted of a similar misdemeanor offense stemming 

from the same incident and relating to the same victim, we apply the “same 
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elements” test set forth by the United States Supreme Court in Blockburger v. 

United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

{¶23} As explained by the Supreme Court of Ohio in State v. Mutter, 150 

Ohio St.3d 429, 2017-Ohio-2928, at ¶ 17:

The Blockburger test applies “where the same act or transaction 

constitutes a violation of two distinct statutory provisions” and 

requires the reviewing court to evaluate the elements of each statutory 

provision to determine “whether each provision requires proof of a 

fact which the other does not.” Blockburger at 304, 52 S.Ct. 180. 

“‘This test focuses upon the elements of the two statutory provisions, 

not upon the evidence proffered in a given case.’” Zima [102 Ohio 

St.3d 61, 2004-Ohio-1807] at ¶ 20, quoting State v. Thomas, 61 Ohio 

St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on other 

grounds, State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), 

syllabus. The United States Supreme Court has summarized 

the Blockburger test as an inquiry that asks “whether each offense 

contains an element not contained in the other; if not, they are the 

‘same offence’ and double jeopardy bars additional punishment and 

successive prosecution.” United States v. Dixon, 509 U.S. 688, 696, 

113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

{¶24} In the felony indictment in this case, Rocubert is charged in each count 

with Aggravated Vehicular Homicide in violation of R.C. 2903.06(A)(1)(a), which 

provides, in relevant part:

No person, while operating or participating in the operation of a motor 

vehicle * * * shall cause the death of another or the unlawful 

termination of another’s pregnancy * * * [a]s the proximate result of 

committing a violation of division (A) of section 4511.19 of the 

Revised Code or of a substantially equivalent municipal ordinance[.]

{¶25} As to the subsection of R.C. 2903.06, the statute with which Rocubert 

was charged with violating and convicted of in municipal court, the portions of the 
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municipal court record before us reflect conflicting information. The allegations 

contained in the body of each count of that complaint are that Rocubert, while 

operating a motor vehicle, caused the death of another or the unlawful termination 

of another’s pregnancy as the proximate result of committing a violation of a section 

contained in Title XLV of the Ohio Revised Code that is a minor misdemeanor. 

Such an allegation charges the crime of Vehicular Manslaughter, a second-degree 

misdemeanor in violation of R.C. 2903.06(A)(4). However, notwithstanding the 

charging language in each count of the misdemeanor complaint, the complaint then 

states that Rocubert is being charged in each count with Vehicular Homicide, a firstdegree misdemeanor in violation of R.C. 2903.06(A)(3). The rest of the municipal 

court record included in the appellate record here, including the written plea 

agreement, the transcript of the plea hearing, and the judgment entry memorializing 

the no contest plea to the first count of the complaint and dismissing the four 

remaining counts, reflects that counsel for both parties and the municipal court judge 

all apparently believed that Rocubert was charged with Vehicular Homicide in 

violation of R.C. 2903.06(A)(3), and that he was convicted of, and then sentenced 

for, a violation of that subsection, regardless of the charging language in the 

complaint setting forth the elements of a related, but different, crime. 

{¶26} As the validity of Rocubert’s conviction and sentence in the Sidney 

Municipal Court is not before us in this appeal, we decline to make a determination 

as to which crime he was actually charged with and convicted of in the misdemeanor 
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case. Rather, for purposes of analyzing Rocubert’s double jeopardy claim as to the 

charge contained in Count A of the misdemeanor complaint, and to which he pled 

no contest, we opt to apply the Blockberger test to both of the subsections of R.C. 

2903.06 that are implicated in the misdemeanor complaint, being R.C. 

2903.06(A)(3) and R.C. 2903.06(A)(4).

R.C. 2903.06(A)(3) provides, in relevant part:

No person, while operating or participating in the operation of a motor 

vehicle * * * shall cause the death of another or the unlawful 

termination of another’s pregnancy in any of the following ways:

(a) [n]egligently;

(b) [a]s the proximate result of committing, while operating or 

participating in the operation of a motor vehicle or motorcycle in a 

construction zone, a speeding offense, provided that this division 

applies only if the person whose death is caused or whose pregnancy 

is unlawfully terminated is in the construction zone at the time of the 

offender's commission of the speeding offense in the construction 

zone and does not apply as described in division (F) of this section.

R.C. 2903.06(A)(4) provides, in relevant part:

No person, while operating or participating in the operation of a motor 

vehicle * * * shall cause the death of another or the unlawful 

termination of another’s pregnancy * * * [a]s the proximate result of 

committing a violation of any provision of any section contained in 

Title XLV of the Revised Code that is a minor misdemeanor or of a 

municipal ordinance that, regardless of the penalty set by ordinance 

for the violation, is substantially equivalent to any provision of any 

section contained in Title XLV of the Revised Code that is a minor 

misdemeanor.

{¶27} As required by the Blockburger test, upon comparing the elements of 

R.C. 2903.06(A)(3) or the elements of R.C. 2903.06(A)(4) to the elements of R.C. 
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2903.06(A)(1)(a), supra, we conclude that the felony-level Aggravated Vehicular 

Homicide with which Rocubert is indicted does not constitute the same offense as 

either the Vehicular Homicide or the Vehicular Manslaughter referenced in the 

misdemeanor complaint because, in all instances, the felony offense contains an 

element not found in the misdemeanor charge and the misdemeanor charge contains 

an element not found in the felony charge. As the indicted offense at issue is not 

the same offense as any of the misdemeanor offenses at issue, the double-jeopardy 

protections of the Fifth Amendment do not bar prosecution on the indictment in this 

case with regard to the charge to which Rocubert pled no contest in Sidney 

Municipal Court.

{¶28} Accordingly, for the reasons stated, Rocubert’s assignment of error is 

overruled.

Conclusion

{¶29} Having found no error prejudicial to the defendant-appellant, Dayren 

Rocubert, in the particulars assigned and argued, the judgment of the Shelby County 

Court of Common Pleas is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and MILLER, J., concur.

/hls