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State v. Smith

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEANDREW SMITH DEFENDANT-APPELLANT

          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

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Appellant, De' Andrew Smith, [1] 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.

         I. Factual and Procedural History

         {¶2} 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.

         {¶3} 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 count.

         {¶4} 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.

         {¶5} 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.

         II. Law and Analysis

         A. Final ...


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