State v. Crago

• Decision Date: 12 September 1990
• Docket Number: No. 88-2000,88-2000
• Citation: 53 Ohio St.3d 243,559 N.E.2d 1353
• Parties: The STATE of Ohio, Appellee, v. CRAGO, Appellant.
• Court: Ohio Supreme Court

Page 243

53 Ohio St.3d 243

559 N.E.2d 1353

The STATE of Ohio, Appellee, v. CRAGO, Appellant.

No. 88-2000.

Supreme Court of Ohio.

Submitted Dec. 13, 1989 and July 31, 1990.

Decided Sept. 12, 1990.

Syllabus by the Court

The overruling of a motion to dismiss on the ground of double jeopardy is not a final appealable order. (R.C. 2505.02, construed and applied; State v. Thomas [1980], 61 Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph one of the syllabus, overruled.)

As set forth by the court of appeals, the facts of this case are that Martin Crago, appellant, shot Edward Murray in Franklin County on January 17, 1986. Murray was an employee of Snap-on-Tool, Inc. Apparently, appellant and an accomplice arranged to meet Murray for the purpose of robbing him and Murray was shot twice by appellant during the course of that meeting. Appellant then drove Murray to Pickaway County in Murray's company van, whereupon appellant removed tools from the van. Appellant then drove Murray, who was at this point seriously wounded, to a rural location where appellant abandoned Murray and the van.

On January 18, 1986, the van and Murray were located. Murray was still alive but later than day he succumbed to his wounds. On January 21, 1986, appellant was arrested. Appellant, on two separate occasions, admitted to authorities that he had killed Murray.

On January 24, 1986, appellant was indicted (on three separate counts) for the aggravated murder of Murray. Count One alleged that appellant purposefully murdered Murray with prior calculation and design, but this count was subsequently dismissed. Count Two charged appellant with the purposeful killing of Murray during the commission of an aggravated robbery with, inter alia, aggravated robbery and kidnapping specifications. Count Three charged appellant with the purposeful killing of Murray during the course of a kidnapping with, inter alia, aggravated robbery and kidnapping specifications. Appellant was also indicted, in Counts Four and Five, for aggravated robbery and kidnapping, respectively.

At trial, appellant, through his counsel, admitted he robbed, kidnapped and killed Murray, but maintained that the prosecution could not prove that he acted purposely in causing the death. The jury returned its verdicts finding appellant guilty of the aggravated robbery and kidnapping counts. The jury, however, found appellant not guilty of aggravated murder arising from the kidnapping, but guilty of the lesser included offense of involuntary manslaughter. As to the aggravated murder charge arising from the aggravated robbery, the court declared a mistrial when the jury was unable to reach a verdict.

Subsequently, the single count of aggravated murder which resulted in a mistrial was set for retrial and appellant, through counsel, moved the court to dismiss the charge on the bases of double jeopardy and collateral estoppel. Appellant's motion was overruled. Appellant appealed the denial of his motion to dismiss to the court of appeals which affirmed the trial court on the issue of double jeopardy and also affirmed, but only in part, the trial court's determination on the issue of collateral estoppel. In doing so, the court of appeals, in reversing the trial court in part, remanded the cause for retrial with instructions that the kidnapping specification be stricken from the remaining count of aggravated murder since the jury had determined that issue in appellant's favor.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Michael Miller, Pros. Atty., and Alan C. Travis, for appellee.

Bodiker & Holland, David H. Bodiker and Allen V. Adair, for appellant.

DOUGLAS, Justice.

In this appeal, appellant challenges the efforts of the state of Ohio to retry him on the remaining and undecided count of aggravated murder arising from the aggravated robbery. Appellant contends that retrial is prohibited for two reasons, both of which involve the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. ¹

Following briefing and oral argument in this court regarding appellant's challenge to retrial, we requested that the parties to this appeal brief the following issue for our consideration:

"[W]hether denial of a motion to dismiss a charge on the basis of double jeopardy is a final appealable order in accordance with the criteria set forth in R.C. 2505.02." (Emphasis sic.) State v. Crago (1990), 48 Ohio St.3d 708, 550 N.E.2d 480.

Upon consideration of this question, we find that the overruling of a motion to dismiss on the ground of double jeopardy is not a final appealable order.

R.C. 2505.03(A) states, in relevant part, that: "[e]very final order * * * may be reviewed on appeal * * *." (Emphasis added.)

R.C. 2505.02 ² defines what types of orders are "final." The denial of a motion to dismiss a charge on the basis of double jeopardy does not meet, for purposes of being a final order, any one of the three prongs of R.C. 2505.02 as set forth therein. Therefore, the denial of a motion to dismiss on the basis of double jeopardy is not a final order which may immediately be reviewed upon appeal.

R.C. 2953.02 provides that, in a criminal case, the court of...