Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-605525-A
ATTORNEYS FOR APPELLANT Marcus S. Sidoti Jordan & Sidoti,
L.L.P., Mary Catherine Corrigan
ATTORNEYS FOR APPELLEE Michael C. O'Malley, Mary McGrath,
Khalilah A. Lawson Assistant Prosecuting Attorneys
BEFORE: Celebrezze, J., S. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
Appellant, De' Andrew Smith,  appeals from his motion to
preclude the state from retrying him on charges of felonious
assault. Appellant claims principles of double jeopardy
preclude retrial for felonious assault after a jury found him
not guilty of that crime but could not reach a verdict on the
inferior offense of aggravated assault. After a thorough
review of the record and law, this court reverses and remands
for further proceedings consistent with this opinion.
Factual and Procedural History
Appellant, a student at Westlake High School, was involved in
a fight with another student in a restroom near the cafeteria
of the school. The fight was recorded by at least one other
student. The video shows appellant and the student exchanging
blows, and then appellant picks up the other student and
drops him on his head. This other student suffered
significant injuries and spent several days in the hospital.
Appellant and the other student involved in the fight were
suspended from school.
Appellant was indicted and charged with felonious assault, a
second-degree felony violation of R.C. 2903.11(A)(1); and
abduction, a third-degree felony violation of R.C.
2905.02(A)(2). A jury trial commenced on December 5, 2016.
Near the close of evidence, the state requested a jury
instruction for the inferior offense of aggravated assault,
which the court gave. At the close of the trial, the jury
returned a not-guilty verdict for the felonious assault
count. However, the jury could not reach a verdict for the
inferior offense of aggravated assault or the abduction
The court declared a mistrial and scheduled a new trial for
the charge of abduction only. In February 2017, the state
filed a motion seeking retrial of felonious assault and
abduction, and appellant orally moved to dismiss the
felonious assault count based on double jeopardy. The issue
was then briefed by the parties.
On April 10, 2017, the trial court granted the state's
motion, finding that principles of double jeopardy did not
preclude retrial. The court also found that the jury's
findings regarding felonious assault and aggravated assault
constituted an inconsistency that could result in retrial for
felonious assault. The trial court denied appellant's
motion to dismiss. Appellant filed the instant appeal from
this order, assigning two errors for review:
I. The trial court erred by finding that the appellant could
be re-tried on the count of felonious assault as well as on
the inferior offense instruction of aggravated assault.
II. The trial court erred in instructing the jury on the
inferior offense of aggravated assault.
Law and Analysis