State Of Ohio v. Ross
| Citation | 2010 Ohio 6282 |
| Decision Date | 28 December 2010 |
| Docket Number | No. 2009-1619,2009-1619 |
| Parties | State of Ohio, Appellant v. Ross, Appellee. |
| Court | United States State Supreme Court of Ohio |
Criminal procedure — Crim.R. 29(C) — Crim.R. 29 and 45(B) do not permit a defendant to file a motion to renew an already denied motion for acquittal outside the Crim.R. 29(C) time frame — Cause remanded.
Appeal from the Court of Appeals for Summit County,
No. 21906, 184 Ohio App.3d 174, 2009-Ohio-3561.
{¶ 1} This appeal presents the issue of whether a trial court, having denied a timely filed Crim.R. 29(C) motion for acquittal, may reconsider its ruling and grant the motion based on the defendant's renewed motion filed after the 14-day time period in Crim.R. 29(C) has expired.
{¶ 2} In this case, the trial court denied appellee Denny Ross's timely filed motion for acquittal pursuant to Crim.R. 29(C). However, well after the expiration of the time period for making a motion for acquittal under Crim.R. 29(C), Ross filed a supplemental memorandum urging the trial court to grant him an acquittal. The trial court then purported to grant what it characterized as Ross's motion for reconsideration of the court's previous order denying Ross's motion for acquittal. The state appealed, contending that the court of common pleas lacks jurisdiction to grant an untimely Crim.R. 29(C) motion for acquittal because Crim.R. 45(B) bars any action not expressly provided for by Crim.R. 29(C), and any order purporting to grant acquittal outside the confines of Crim.R. 29(C) is void and unenforceable. The court of appeals affirmed. State v. Ross, 184 Ohio App.3d 174, 2009-Ohio-3561, 920 N.E.2d 162, ¶ 25. We granted review. State v. Ross, 124 Ohio St.3d 1472, 2009-Ohio-3561, 921 N.E.2d 244.
{¶ 3} In 1999, a Summit County grand jury indicted Denny Ross for the kidnapping, rape, murder, and aggravated murder of Hanna Hill and for tampering with evidence and abuse of a corpse. 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. See R.C. 2929.04(A)(7). During Ross's trial, the court granted in part Ross's motion for acquittal under Crim.R. 29(A), ordering dismissal of the kidnapping charge and the related death-penalty specification. At the close of all evidence, Ross again moved for acquittal on the remaining charges under Crim.R. 29(A), but that motion was denied.
{¶ 4} Before the jury trial concluded, the trial judge granted a mistrial because of juror misconduct. The jury was discharged on October 28, 2000. The trial court then discovered that the jury had filled out some of the verdict forms (with regard to the charges of aggravated murder, murder, and rape), but the court did not accept those verdicts because the jury already had been discharged.
{¶ 5} 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 of aggravated murder, murder, rape, tampering with evidence, and abuse of a corpse. He also filed a motion to perfect the verdicts of acquittal and a motion to dismiss the case on double-jeopardy grounds. A different judge was appointed to preside over the case after the recusal of Judge Bond, the original trial judge. The new trial judge granted the motion to dismiss on double-jeopardy grounds and declined to rule on the other motions, including the Crim.R. 29(C) motion for acquittal. On direct appeal of the trial court's double-jeopardy ruling, the court of appeals reversed and remanded the case for retrial. State v. Ross, 9th Dist. No. 20980, 2002-Ohio-7317, 2002 WL 31890088.1
{¶ 6} On September 10, 2003, after the court of appeals' decision and before the federal courts' final resolution of Ross's separate challenge to the mistrial in federal habeas proceedings, the common pleas court in a one-page order denied Ross's motions for acquittal and to perfect the jury verdicts and scheduled the case for trial on November 17, 2003.
{¶ 7} On September 12, 2003, almost three years after the jury had been discharged after the mistrial, Ross filed a document entitled "defendant'ssupplemental memorandum in support of his motion to perfect the three unanimous verdicts of acquittal."2 On October 3, 2003, the trial court issued an order to grant the state additional time to respond to Ross's September 12, 2003 filing and to permit oral argument and a hearing on the merits of Ross's motion to perfect verdicts. In its October 3, 2003 entry, the trial court characterized Ross's September 12, 2003 filing as a motion to reconsider its order of September 10, 2003. A week later, the trial court then issued an order granting Ross's motion to continue the trial and setting a scheduling conference for October 15, 2003.
{¶ 8} On November 6, 2003, Ross filed a supplemental memorandum in support of his renewed motion for judgment of acquittal pursuant to Crim.R. 29. This was the first time after the September 10, 2003 order denying his motion for acquittal that Ross sought to renew his acquittal motion. In this filing, Ross urged dismissal of the rape charge and the aggravating circumstance of killing the victim in the course of committing a rape and requested the court to consider the state's recent posttrial advisement to Ross pursuant to Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, casting doubt on some of the state's expert testimony at trial regarding the apparent bite marks found on the victim.
{¶ 9} The trial court held a hearing on Ross's motions, including his renewed motion for acquittal, on November 12, 2003. At that hearing, and in a written response to Ross's renewed motion, the state objected to the trial court's consideration of Ross's renewed motion filed well after the 14-day deadline for such motions in Crim.R. 29(C). On November 26, 2003, Ross then filed a second supplemental memorandum in support of his renewed motion for acquittal pursuant to Crim.R. 29. The trial court issued a written opinion purporting to'reconsider its previous denial of Ross's motion for acquittal and granting Ross an acquittal of the rape charge and the related death-penalty specification.
{¶ 10} The state filed both an appeal as of right and a motion for leave to appeal. In the motion, the state sought leave to appeal the judgment entry "granting Defendant's Motion to Reconsider the court's Previous Denial of Defendant's Criminal Rule 29 Motion for Judgment of Acquittal, and specifically granting the Defendant Judgment of Acquittal of the offense of Rape and the Death Specification." (Emphasis sic.) The court of appeals, in a brief order, granted without discussion the state's motion for leave to appeal under R.C. 2945.67(A).
{¶ 11} 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 order reconsidering denial of Ross's acquittal motion. The court of appeals held that the trial court's initial denial of Ross's motion for acquittal under Crim.R. 29(C) was not a final judgment under R.C. 2505.02(B), and that as an interlocutory order, it could be reconsidered and granted. Ross, 184 Ohio App.3d 174, 2009-Ohio-3561, 920 N.E.2d 162, ¶ 12, 17, 25. The state appealed from that decision, and we granted review. Ross, 124 Ohio St.3d 1472, 2010-Ohio-354, 921 N.E.2d 244. The state asserts the following proposition of law: "The court of common pleas lacks jurisdiction to grant an untimely Crim.R. 29(C) motion for acquittal because Crim.R. 45(B) bars 'any action' not expressly provided for by Crim.R. 29(C), and any order purporting to grant acquittal outside the confines of Crim.R. 29(C) is void and unenforceable."
{¶ 12} This appeal requires us to determine whether a trial court may reconsider a timely made, but previously denied, motion for acquittal pursuant to Crim.R. 29(C), if the defendant, after the 14-day deadline in that rule, renews the motion. Before we discuss that question, we address whether the state's appeal ofthe trial court's order reconsidering its denial of Ross's motion for acquittal was proper under R.C. 2945.67(A), which addresses state appeals in criminal cases.
{¶ 13} The first question presented in this appeal is whether the trial court's order purporting to reconsider and grant Ross an acquittal on the rape charge and related death-penalty specification is an order from which the state may appeal pursuant to R.C. 2945.67(A). The state contends that the trial court lacked jurisdiction to enter an acquittal, so it was not a "final verdict" that R.C. 2945.67(A) prohibits the state from appealing. R.C. 2945.67(A) provides:
{¶ 14} "A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case'" (Emphasis added.)
{¶ 15} In addition to the orders that the statute specifies are appealable as of right, R.C. 2945.67(A) allows the state, by leave of court, to appeal "any other decision" in a criminal case "except the final verdict." In State v. Keeton (1985), 18 Ohio St.3d 379, 18 OBR 434, 481 N.E.2d 629, paragraph two of the syllabus, this court concluded that a "directed verdict of acquittal by the trial judge in a criminal case is a 'final verdict' within the meaning of R.C. 2945.67(A) which is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute."
{¶ 16} In State ex rel. Yates v....
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