Being unable to concur in the majority opinion, I respectfully dissent.
The state does not seriously dispute that the offenses charged under counts seven and eight of the indictment against Oak Hill Professional Pharmacy and Bel Park Professional Pharmacy are identical in substance to those charged in the first six counts of the indictment against defendant individually. See Brown v. Ohio (1977), 432 U.S. 161, 166,97 S.Ct. 2221, 2225-2226, 53 L.Ed.2d 187, 194; Blockburger v.United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Nor does the state argue that because the "acquittal" of Oak Hill and Bel Park was not based on a "factual finding of innocence," it does not rise to the level of an actual acquittal for double jeopardy purposes. See State v. Malinovsky (1991), 60 Ohio St.3d 20,23, 573 N.E.2d 22, 23. Finally, I am willing to assume, without so deciding, that defendant is correct in arguing that for purposes of a double jeopardy analysis, the present case involves two prosecutions: the first ending with the acquittal of the pharmacies, and the second commencing with the denial of defendant's subsequent motion for acquittal. Nonetheless, defendant's double jeopardy argument fails because it is based on the erroneous assumption that counts seven and eight of the indictment, naming Oak Hill and Bel Park as defendants, were effective to charge defendant individually.
A sole proprietorship is neither an actual nor a legal entity, and any judgment rendered against such a nonentity isvoid. Patterson v. V M Auto Body (1992), 63 Ohio St.3d 573,589 N.E.2d 1306. Because counts seven and eight of the indictment were brought against sole proprietorships, any judgment resulting therefrom, whether a conviction or an acquittal, would be void. A void judgment does not bar a subsequent prosecution under the Double Jeopardy Clause, since a proceeding which must result in a void judgment never places the defendant in jeopardy. United States v. Ball (1896),163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300;State v. Yee (1989), 55 Ohio App.3d 88, 90,563 N.E.2d 54, 57. Defendant thus was never placed in jeopardy by the charges brought against his sole proprietorships, as he was never at risk to suffer an enforceable conviction or penalty as a result of those charges, and his prosecution on the same charges for which his sole proprietorships were previously acquitted did not violate the Double Jeopardy Clause.
The majority apparently suggests that defendant was at jeopardy under the counts charged against his pharmacies, at least until the trial court ruled that the pharmacies were not "organizations" under R.C. 2901.23(D). The majority, *Page 264 however, concludes that the sole proprietorships, as a matter of law, are not subject to liability as an organization. Thus, regardless of the state's indictment, or the trial court's ruling on the issue, a sole proprietorship is not and never was an "organization" subject to liability. As a result, any judgment on counts seven and eight against the sole proprietorships would be void under Patterson, would never place defendant in jeopardy, and thus would not bar prosecution of defendant individually under double jeopardy principles.
Accordingly, I would overrule defendant's double jeopardy arguments.