[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 County, Ohio

Case No. 20CRB000796

BEFORE:

Thomas R. Wright, Cynthia Westcott Rice, Mary Jane Trapp, Judges.

JUDGMENT:

Reversed; 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 PlaintiffAppellant, and

Atty. Ronald D. Yarwood, DeGenova and Yarwood Ltd., 42 North Phelps Street, 

Youngstown, Ohio 44503, and Atty. John B. Juhasz, 7081 West Boulevard, Suite No. 4 

Youngstown, Ohio 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 alleging 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 

advertisement that was posted on Facebook. The complaint charged Gamble with four 

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 granted the motion.

{¶3} In its sole assigned 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. Brady, 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 
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Dist.) (“The Ohio Rules of Criminal Procedure do not provide for the equivalent of a civil 

motion for summary judgment.”). 

{¶5} The four charges alleged violations of R.C. 2923.03(A)(1)-(2), which 

provides, “No 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 offenses 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 pleases 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 predecessor 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 public 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) 

Examples 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 candidates 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 individuals; (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 official 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 election; (7) Campaigning by writing for publications, by distributing 

political material, or by writing or making speeches on behalf of a candidate for partisan elective 
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{¶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. The parties have differing interpretations of the 

dismissal entry. Therefore, we reproduce the relevant paragraphs below, with lettering 

added for purposes of discussion.

2

 After 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 express 

freely political opinions”. In order for the State of Ohio to 

restrict/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 

must 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, either 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 the 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.
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charged with the underlying offense. The Court finds that the 

prosecution doesn’t fail on these 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 

underlying 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 intent 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 ORC 124.57, this 

prosecution must fail as a matter of law.

{¶7} Accordingly, the trial court begins in paragraph A by summarizing Gamble’s 

claim that the Little Hatch Act is unconstitutional as applied to him. 

{¶8} However, the parties then read paragraph B as a holding of the court, 

although they disagree as to the import of the holding. The state reads this paragraph as 

holding that the Little Hatch Act is unconstitutional as applied to Gamble. However, 

Gamble appears to interpret this paragraph as determining that the constitutional 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 commission of the underlying offense.

{¶9} However, we do not reach the merits of either party’s interpretation 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 arguments. The 

court makes no indication in paragraph B that it has shifted from recitation of argument to 

reasoning or finding of the court. Accordingly, as 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, 
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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, including 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 misunderstood 

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 our reading of the entry 

does not indicate that the trial court misunderstood the nature of the charges.

{¶11} However, with 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[.]” There is no dispute that the Little Hatch Act

constituted the alleged underlying offense in the complaint, which tracked the relevant 

portions of the statutory language regarding complicity and the Little Hatch Act in each 

count.

{¶12} Gamble appears 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 whether the principals 

violated the Little Hatch Act and whether Gamble was complicit in such a violation. We 

agree. Such issues are the general issues 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” 
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but “engaged in a pretrial determination of the general issue of the case” dismissal was 

not proper under Crim.R. 12(C)). 

{¶14} The essence of the trial court’s ruling is contained in the remainder of 

paragraph E. The trial court concluded 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 assigned 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 arguments were presented to the trial court, they

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 

under 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. 
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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.
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