[Cite as State v. Gamble , 2022

- Ohio

- 2964.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY

STATE OF OHIO
, Plaintiff

- Appellant
,

v.
JOHN E. GAMBLE
, Defendant

- Appellee

.

O P I N I O N A N D J U D G M E N T E N T R Y

Case No. 2021

- CO

- 00006

Criminal Appeal from the Municipal Court of Columbiana Co unty, Ohio

Case No. 20CRB000796

BEFORE: Thomas R. W right
, Cynthia Wes t cott Rice
, Mary Jane Trapp, Judges.

JUDGMENT: R eversed; remanded[Cite as State v. Gamble , 2022

- Ohio

- 2964.]

Atty. Dave Yost , Ohio Attorney General, Atty. Benjamin M. Flowers , Solicitor General, Atty. John Rockenbach , Deputy Solicitor General, Atty. Daniel M. Kasaris , Assistant Attorney General, 30 East Broad Street, 17th Floor
, Columbus, Ohio 43215, for Plaintiff

Appellant, and
Atty. Ronald D. Yarwood
, DeGenova and Yarwood Ltd.
, 42 North Phelps Street
, Youngstown, O hio 44503
, and Atty. John B. Juhasz
, 7081 West Boulevard, Suite No. 4 Youngstown, O hio 44512
, for Defendant

- Appellee

.
Dated: August 25, 2022

WRIGHT , J.
{¶1} Appellant, the state of Ohio, appeals the judgment dismissing the criminal complaint filed against appellee, John E. Gamble. We reverse and remand

. {¶2} In 2020, a criminal complaint was filed against Gamble alleg ing that during his campaign as a candidate for the office of Columbiana County Prosecutor in 2020, Gamble solicited and aided classified civil servants to pose with him for a campaign
ad vertisement that was posted on Facebook . The complaint charg ed Gamble with fo ur counts of complicity in violation of R.C. 2923.03(A)( 1 )

- (2) for soliciting and aiding others
to violate the Little Hatch Act. See R.C. 124.57. Thereafter, Gamble moved to dismiss the complaint. After hearing arguments on the matter, the trial court g ranted the motion. {¶3} In its sole assign ed error, the state maintains:

THE TRIAL COURT ERRED IN GRANTING JOHN GAMBLE ’ S MOTION TO DISMISS THE CRIMINAL COMPLAINT.
{¶4} Although not referenced in the judgment entry
, Crim

. R

. 12( C) governs pretrial motions. This rule provides that “[p] rior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue

. ” “Crim.R. 12 permits a court to consider evidence beyond
the face of [the charging instrument] when ruling on a pretrial motion to dismiss [the charging instrument] if the matter is capable of determination without trial of the general
issue.” State v. Bra dy , 119 Ohio St.3d 375, 2008

- Ohio

- 4493, 894 N.E.2d 671, ¶ 3; see also State v. Gaines , 193 Ohio App.3d 260, 2011

- Ohio

- 1475, 951 N.E.2d 814, ¶ 16 (12th– 3

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- 00006 Dist.) (“ The Ohio Rules of Criminal Procedure do not provide for the equivalent of a civil
motion for sum mary judgment.” ). {¶5} The four charges alleged violations of R.C. 2923.03(A)( 1)

- (2), which provides
, “N o person, acting with the kind of culpability required for the commission of an offense, shall * * * [s]olicit or procure another to commit the offense ” or “ [a]id or abet another in committing the offense [

. ] ” The alleged underlying offense s here pertain to the Little Hatch Act, which , in relevant part, prohibits an “ officer or employee in the classified service of the state, the several counties, cities, or city school districts of the state, or the civil service townships of the state ” from “ tak [ing] part in politics other than to vote as the officer or employee plea ses and to express freely political opinions. ” R.C. 124.57(A). In Heidtman v. Shaker Heights , 163 Ohio St. 109, 56 O.O. 171, 126 N.E.2d 138 (1955), the Supreme Court of Ohio addressed the prohibition of “tak[ing] part in politics” as set forth
in the pr edecessor to R.C. 124.57 and held that the phrase must be read in its narrower, partisan context , to wit: “‘political affairs in a party sense; the administration of public affairs or the conduct of political matters so as to carry elections and secure pub lic office; party intrigues; political wirepulling; trickery.’” Heidtman at 118

- 119
, quoting Funk & Wagnalls New Standard Dictionary (1952 ). The Ohio Administrative Code provides guidelines concerning conduct regulated by the Little Hatch Act. See Ohio Adm.Code
123:1

- 46

- 02

. 1

1. “ (A) The purpose of this rule is to provide appointing authorities, personnel officers, and others with guidelines concerning political activity. Employees in the classified service of the state are prohibited by section 124.57 of the Revised Code from engaging in political activity. * * *(B) Exam ples of permissible activities for employees in the classified service include, but are not limited to the following: (1) Registration and voting; (2) Expression of opinions, either oral or written; (3) Voluntary financial contributions to political candid ates or organizations; (4) Circulation of nonpartisan petitions, petitions that do not identify with any particular party, or petitions stating views on legislation; (5) Attendance at political rallies; (6) Signing nominating petitions in support of indivi duals; (7) Display of political materials in the employee ’ s home or on the employee ’ s property; (8) Wearing political badges or buttons, or the display of political stickers on private vehicles; and (9) Serving as a precinct election official under section 3501.22 of the Revised Code. (C) The following activities are prohibited to employees in the classified service: (1) Candidacy for public office in a partisan election; (2) Candidacy for public office in a nonpartisan general election if the nomination to candidacy was obtained in a partisan primary or through the circulation of nominating petitions identified with a political party; (3) Filing of petitions meeting statutory requirements for partisan candidacy to elective office; (4) Circulation of officia l nominating petitions for any candidate participating in a partisan election; (5) Service in an elected or appointed office in any partisan political organization; (6) Acceptance of a party

- sponsored appointment to any office normally filled by partisan e lection; (7) Campaigning by writing for publications, by distributing political material, or by writing or making speeches on behalf of a candidate for partisan elective– 4

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- 00006 {¶6} Here, evidence was not presented on the issues raised in the motion to dismiss, and the hearing on the motion consisted of oral argument only. After hearing
, the trial court dismissed the complaint

. T he parties have diffe ring interpretations of the dismissal entry . Therefore, we reproduce the relevant paragraphs below, with lettering added for purposes of discussion

. 2 A fter quoting the Little Hatch Act, the entry provides :

[A] The Defendant ’ s contention is that the application of this statute under the unique facts and circumstances of this case would amount to a violation of the Defendant ’ s rights guaranteed by both the US Constitution in amendments I and XIV and the Ohio Constitution in Article I sections 2, 11, 16 and 20. Defendant does not contend, nor can this Court find herein that the above Statute is Unconstitutional on its face. However
, the Defendant does challenge this Statute as it is applied to him and these facts and circumstances which is disputed by the State of Ohio.
[B] More specifically, the Defendant (and any uncharged principal) enjoys a Constitutionally protected right to freedom of speech and of free association. ORC 124.57 speaks specifically to covered State actors of their right “ to expre ss freely political opinions ”

. In order for the State of Ohio to restric t/ infringe on these individual freedoms, they must show a Compelling State Interest to do so. The State ’ s Interest does not rise to that level herein. Therefore, this prosecution
mu st fail as a matter of law.
[C] Part of the Defendant ’ s challenge to the ORC section above is that by its very terms, it is applicable to employees

“ in the classified service ” , of which clearly this Defendant is not.
[ D ] Another issue is whether this Defendant may be properly charged with complicity when no principal actor has been

office, when such activities are directed toward party success; (8) Solicitation, eith er directly or indirectly, of any assessment, contribution or subscription, either monetary or in

- kind, for any political party or political candidate; (9) Solicitation of the sale, or actual sale, of political party tickets; (10) Partisan activities at th e election polls, such as solicitation of votes for other than nonpartisan candidates and nonpartisan issues; (11) Service as witness or challenger for any party or partisan committee; (12) Participation in political caucuses of a partisan nature; and (13) Participation in a political action committee which supports partisan activity.”

2. A copy of the entirety of the trial court’s judgment entry is attached.– 5

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charged with the underlying offense. The Court finds that the prosecution doesn ’ t fail on thes e grounds.
[E] However, the gravamen of this point is whether a criminal prosecution involving Complicity may be maintained where the underlying crime [ ] (charged or not) does not exist? The Court finds the answer to be no. However, is there an actual
u nderlying crime alleged here? In order to sustain this prosecution, the State of Ohio must show that the Defendant assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime and must have shared the criminal in tent of the principal. The State can not sustain their burden in this prosecution because this Defendant is in the UNCLASSIFIED service not the CLASSIFIED service as required by ORC 124.57. Because he can not be prosecuted under these circumstances under O RC 124.57, this prosecution must fail as a matter of law.
{¶7} Accordingly, the trial court b egin s in paragraph A by summariz ing Gamble’s claim that the Little Hatch Act is unconstitutional as applied to him

. {¶8} However, the parties then read paragraph B as a h olding of the court, although they disagree as to the import of the holding. T he state reads th is paragraph as holding that the Little Hatch Act is unconstitutional as applied to Gamble

. However,
Gamble appears to interpret th is paragraph as determining that the c onstitutional right to freely express political opinions is embedded in the Little Hatch Act, and
, because of this
, the state was required to demonstrate a compelling reason to restrict these rights to
establish commissio n of the underlying offense

. {¶9} However, we do not reach the merits of either party’s i nterpret ation of paragraph B , as it does not announce the trial court’s ruling or reasoning on the issues. The paragraph begins with the phrase “more specifically,” which would refer to the
discussion immediately prior
, wherein the trial court recounted Gamble’s challenges. Thus, paragraph B appears to be continuing the recitation of Gamble’s argument s . The court makes no indication in paragraph B that it has shifted from recitation of argument to reasoning or finding of the court. Accordingly, a s there is no further reference in the decision to the First Amendment, the trial court did not reach the issue . Instead, the court dismissed the complaint on other grounds. See In re J.M. , 7th Dist. Jefferson No. 09 JE 21, 2010

- Ohio

- 2700, ¶ 65, citing State v. Talty , 103 Ohio St.3d 177, 814 N.E.2d 1201,– 6

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- 00006 2004

- Ohio

- 4888, ¶ 9. (“The Ohio Supreme Court has cautioned that constitutional questions should not be answered unless it is absolutely necessary; if a case can be decided without addressing the constitutional issue, the constitutional issues should not be ruled on.”). We decline to review, in the first instance, the merits of the constitutional arguments, includin g the effect of inclusion of First Amendment protections in the Little
Hatch Act. See Carney v. Shockley , 2014

- Ohio

- 5830, 26 N.E.3d 1217, ¶ 48 (7th Dist.) (discussing impropriety of appellate court deciding summary judgment issue that the trial
court had not reached). {¶10} Next, with respect to paragraphs C and D, neither party disputes the
statements contained therein. However, the state maintains that the trial court’s reliance on Gamble being in the unclassified service indicates that the trial court misund erstood the nature of the charges . Specifically, the state repeatedly references that Gamble was not charged directly with violation of the Little Hatch Act, but instead with complicity. There is no dispute that Gamble was charged with complicity, and ou r reading of the entry does not indicate that the trial court misunderstood the nature of the charges. {¶11} However, w ith respect to paragraph E
, it is unclear what the trial court intended by questioning whether the underlying offense “exist [s] ” and whether there was “an actual underlying crime alleged [.] ” T he re is no dispute that the Little Hatch Act
constituted the alleged underlying offense in the complaint, which t rack ed the relevant portions of the statutory language regarding complicity and the Little Hatch Act in each
count

. {¶12} Gamble appear s to construe the questions posed in paragraph E as the trial court questioning whether the underlying offense was proven. Gamble maintains that the trial judge afforded the state the opportunity “to prove” violation of the Little Hatch Act by holding a hearing on Gamble’s motion, “but at that hearing, the state offered no evidence, no witnesses, no exhibits.” {¶13} The state argues that it was not yet required to prove w hether the pri ncipals
violated the Little Hatch Act and whether Gamble was complicit in such a violation. We agree. Such issues are the general issue s for trial on this matter and not appropriately decided by way of a pretrial motion to dismiss

. See Gaines , 2011

- Ohio

- 1475, at ¶ 21 (where trial court “did not simply determine whether the indictments alleged an offense”– 7

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- 00006 but “engaged in a pretrial determination of the general iss ue of the case” dismissal was not proper under Crim.R. 12(C)). {¶14} T he essence of the trial court’s ruling is contained in the remainder of paragraph E. The trial court conclude d that because Gamble could not be directly charged for violation of the Little Hatch Act (because he was not a classified employee) 3

, he likewise could not be charged as complicit in such a violation. However, we are unable
to locate support for the latter determination. One requirement of complicity is acting “ with
the kind of culpability required for the commission of an offense .” However, the statute does not require the accomplice be subject to prosecution for direct commission of the offense to sustain a complicity charge. See R.C. 2923.03. {¶15} Accordingly, the state’s assign ed error has merit. The judgment of the trial
court is reversed
, and the matter is remanded for further proceedings consistent with this opinion. We express no opinion as to the parties’ arguments relative to the First
Amendment , as , to the extent such a rguments were presented to the trial court, th ey remain to be decided by the trial court in the first instance.

3. The state maintains that it could have charged Gamble directly with violating the Little Hatch Act
u nder a provision of the statute that pertains to all persons, regardless of whether they are classified civil servants. However, as this was not the manner in which Gamble was charged here, we do not further address this issue.– 8

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- 00006 For the reasons stated in the Opinion rendered herein, the assignment of error is sustained
, and it is the final judgment and order of this Court that the judgment of the Municipal Court of Columbiana County, Ohio, is reversed. We hereby remand this matter to the trial court for further proceedings according to law and consistent with this Court ’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure . It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

JUDGE THOMAS R. WRIGHT , ELEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT

JUDGE CYNTHIA WESTCOTT RICE , ELEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT

JUDGE MARY JANE TRAPP , ELEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT

NOTICE TO COUNSEL

This document constitutes a final judgment entry

.– 9

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