Medina County Courthouse

Wednesday, February 02, 2011

Trial Court Order Acquitting Ross on Rape Count, Death Specification Was Nonappealable 'Final Verdict'

State v. Ross, Slip Opinion No. 2010-Ohio-6282.
Summit App. No. 21906, 184 Ohio App.3d 174, 2009-Ohio-3561. Cause remanded to the trial court for further proceedings.
Pfeifer, Lundberg Stratton, Connor, O'Donnell, and Cupp, JJ., concur.
Brown, C.J., dissents.
Lanzinger, J., dissents and would dismiss the appeal as having been improvidently accepted.
John A. Connor, J., of the Tenth Appellate District, sitting for O'Connor, J.

(Dec. 28, 2010) The Supreme Court of Ohio ruled today that a 2003 order of the Summit County Court of Common Pleas acquitting Akron murder defendant Denny Ross on a charge of rape and a death penalty specification based on rape was a “final verdict” on those counts that the state is barred from appealing under R.C. 2945.67(A).

Although finding that the trial court committed procedural error when it agreed to reconsider a previously denied motion by Ross for acquittal on the rape-related counts, the Court held that the trial court did not act without jurisdiction, and therefore its acquittal order, correct or incorrect, was not subject to appeal by the state.

In a 5-2 decision authored by Justice Robert R. Cupp, the Court ordered that Ross’ case be returned to the common pleas court for further proceedings on other charges pending against him that were not affected by today’s ruling.

Ross was charged with kidnapping, rape, aggravated murder and several lesser charges in the 1999 death of Hannah Hill. The indictment, as supplemented, alleged two aggravating circumstances — committing murder during a rape and committing murder during a kidnapping — making Ross eligible for the death penalty. During Ross’ trial, the trial court dismissed the kidnapping charge and the related death penalty specification. At the close of all evidence, Ross moved for acquittal on the remaining charges under Crim.R. 29(A), but that motion was denied. Before the jury trial concluded, the trial judge granted a mistrial because of juror misconduct. The jury was discharged on Oct. 28, 2000.

Under Ohio Criminal Rule 29(C), when a criminal prosecution ends in a mistrial and the defendant files a motion for a judgment of acquittal within 14 days after the jury is dismissed, a trial court may enter a judgment of acquittal on one or more of the charges for which the defendant was indicted if the judge finds that the state’s evidence is insufficient to sustain a conviction for that offense.

Within 14 days of the trial court’s discharge of the jury, Ross renewed his motion for acquittal under Crim.R. 29(C) on the remaining charges. A replacement judge was appointed, and he conducted a hearing on Ross’ post-trial motions. The judge issued an order barring a retrial of Ross on the aggravated murder and rape charges on grounds that there had not been a manifest necessity for the mistrial, so a second prosecution would unconstitutionally subject him to double jeopardy. Because that order rendered Ross’ motions under Crim.R. 29(C) moot, the trial court did not rule on them at that time. The state appealed. The 9th District Court of Appeals reversed the order barring Ross’ retrial on double jeopardy grounds, and remanded the case to the trial court for consideration of the Crim. R. 29(C) motions it had not addressed earlier.

In September 2003, three years after Ross’ original motion for a judgment of acquittal under Crim.R. 29(C) was filed, the judge issued a summary journal entry without analysis denying that motion. Nearly two months later, Ross’ attorneys filed supplemental pleadings seeking reconsideration of the judge’s ruling. In December 2003, after considering those supplemental pleadings, the trial judge reversed his earlier ruling and entered a judgment of acquittal on the rape charge and the death penalty specification based on rape, but denied acquittal on the remaining charges. The state initiated an appeal of the trial court’s order, but before that appeal was considered, Ross instituted habeas corpus proceedings in federal court regarding the propriety of the mistrial, and the state’s appeal in state court of the reconsideration of the acquittal was delayed for several years.

After the federal appellate court rejected Ross’s double-jeopardy claims in his habeas petition, the Ninth District Court of Appeals considered the state’s appeal of the trial court order granting reconsideration of Ross’ motion for acquittal on the rape-related counts. The court of appeals rejected the state’s arguments that the trial court’s initial denial of Ross’s motion for acquittal under Crim.R. 29(C) was a “final judgment,” and that the trial court acted without jurisdiction in agreeing to “reconsider” and belatedly grant that motion three years after the time limit for making such motions had expired. Instead, the court of appeals held that the September 2003 ruling denying Ross’ motion for acquittal was an interlocutory order that could be reconsidered and granted at the trial court’s discretion. The state appealed from that decision, and the Supreme Court agreed to review the case.

Writing for the majority in today’s decision, Justice Cupp first noted that R.C. 2945.67(A) grants prosecutors the right to appeal rulings in criminal cases in which a trial court grants a defense motion to dismiss all or part of an indictment, suppress evidence, return seized property or grant postconviction relief; and allows the state to seek leave of a court of appeals to appeal “any other decision, except the final verdictof the trial court in a criminal case.”

He pointed out, however, that under the Supreme Court of Ohio’s decisions in State v. Keeton (1985) and State ex rel. Yates v. Court of Appeals (1987), “a judgment of acquittal entered by the trial court pursuant to Crim.R. 29(C) is a final verdict within the meaning of R.C. 2945.67 and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute.”

Although Keeton and Yates preclude the state from appealing the trial court’s order granting Ross acquittal on the rape-related counts, Justice Cupp wrote that the Court could still review the legal issue underlying the state’s appeal, which was whether, after denying a defendant’s timely motion for acquittal under Crim.R. 29(C), and after the expiration of the 14-day period after jury dismissal within which such motions may be made, a trial court may later permit the defendant to renew and offer supplemental arguments on behalf of his original motion for acquittal.

In answering that question, Justice Cupp wrote: “While Crim.R. 29(C) does not expressly preclude reconsideration of an initial denial of a motion for acquittal, it provides a specific, limited (14-day) time frame within which to make a motion for acquittal after the jury is discharged or to renew an acquittal motion previously made during the trial. In conjunction with Crim.R. 45(B), Crim.R. 29(C) provides for enlargement of the 14-day time period specified in the rule for a post-trial motion for acquittal only when the trial court—acting within that 14-day period—grants a specific extension of that time period for making such a motion. No specific extension of time was made by the trial court in this case within the 14-day time period.”

“The strict time limitations in Crim.R. 29 and 45(B) convince us that the rules do not permit a defendant to file, outside Crim.R. 29(C)’s limited time frame, a motion to renew a previously denied motion for acquittal. ... [W]e hold that the trial court erred in granting reconsideration of its initial denial of Ross’s Crim.R. 29(C) motion for acquittal based on Ross’s renewed motion filed outside the rule’s time limit. Ross’ supplemental memorandum in support of his renewed motion for acquittal, filed over three years after the jury had been dismissed in his first trial, was a new motion for acquittal filed well outside the 14-day-after-jury-dismissal time limitation in Rule 29(C) for such motions. The motion should have been denied for untimeliness under Crim.R. 29(C). Accordingly, the court of appeals erred to the extent that it concluded that the trial court properly reconsidered Ross’s renewed motion for acquittal filed outside the 14-day time limitation of Crim.R. 29(C).”

“Consistent with (State v.) Bistricky, ... we have answered the substantive legal question presented in the state’s proposition of law. However, pursuant to Bistricky and Yates, we do not disturb the trial judge’s acquittal order because that order — as distinct from the substantive legal rulings underlying it — is not appealable under R.C. 2945.67(A). Because the trial court granted Ross an acquittal only on some of the charges remaining against him, we remand this case to the trial court for further proceedings not inconsistent with this opinion.

Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Terrence O’Donnell and Judge John A. Connor of the 10th District Court of Appeals, who sat in place of Justice Maureen O’Connor.

Chief Justice Eric Brown entered a dissenting opinion stating that the court of appeals ruling should be affirmed. “(T)he court of appeals correctly recognized that the trial court’s initial denial of a timely filed Crim.R. 29(C) motion (motion for acquittal after verdict or discharge of jury) was an interlocutory order and that the trial court had inherent authority to subsequently reconsider that denial and grant the motion at any time before final judgment,” he wrote. In Chief Justice Brown’s view the majority’s decision “unnecessarily opens the door to future attacks on a trial court’s inherent authority to control its own docket and correct its own interlocutory mistakes in criminal cases.”

Justice Judith Ann Lanzinger dissented separately, stating that she would dismiss the appeal as having been improvidently granted.

Matthew E. Meyer, 216.443.7800, for the state and Summit County Prosecutor's Office (as Special Prosecutor).

Lawrence Whitney, 330.253.7171, for Denny Ross.

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