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State v. Burgan

Court of Appeals of Ohio, Ninth District, Summit

July 24, 2019

STATE OF OHIO Appellee
v.
TROY L. BURGAN Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2017-05-1814

          ANGELA M. KILLE, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          HENSAL, JUDGE

         {¶1} Troy Burgan appeals a judgment of the Summit County Court of Common Pleas that denied his motion to dismiss complaint. For the following reasons, this Court affirms.

         I.

         {¶2} According to Mr. Burgan's wife and her boyfriend, they were sleeping at Wife's home during the early morning hours of April 30, 2017, when Mr. Burgan came to the front door. After talking to Wife, Mr. Burgan allegedly forced his way into the house and went upstairs to where the boyfriend was sleeping. Mr. Burgan allegedly attacked the boyfriend but was fended off. He went downstairs to grab a knife from the kitchen and returned to the bedroom where he allegedly stabbed the boyfriend in the back of one of his shoulders. The knife broke, so Mr. Burgan retrieved another knife from the kitchen. The boyfriend had moved to the other bedroom in an attempt to hide, but Mr. Burgan allegedly pushed his way into the room and cut the boyfriend in the other shoulder. By then, Wife's sister had called the police, so Mr. Burgan left.

         {¶3} The Grand Jury indicted Mr. Burgan on one count of aggravated burglary and two counts of felonious assault. One of the felonious-assault counts alleged that Mr. Burgan caused serious physical harm to the boyfriend. The other alleged that he caused or attempted to cause harm to the boyfriend by use of a deadly weapon. At trial, the jury acquitted Mr. Burgan of the aggravated burglary count and the felonious assault count involving a deadly weapon. It could not reach a verdict as to the other felonious assault count. When the State attempted to re-try Mr. Burgan on that count, he moved to dismiss the complaint, arguing that it would violate the guarantee against double jeopardy because the remaining count was barred under the doctrine of collateral estoppel. Following a hearing, the trial court denied Mr. Burgan's motion. Mr. Burgan has appealed, assigning as error that the trial court incorrectly denied his motion to dismiss.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO DISMISS AS HE WAS ACQUITTED OF FELONIOUS ASSAULT UNDER ORC §2903.11(A)(1) AND THEREFORE, PER THE DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS, HE CANNOT BE TRIED A SECOND TIME FOR FELONIOUS ASSAULT UNDER ORC §2903.11(A)(2).

         {¶4} Mr. Burgan argues that both felonious assault charges arose out of the same conduct. He also argues that a jury has already determined that he did not use a knife to injure Wife's boyfriend. Mr. Burgan argues that, because the State's only theory of how he caused serious physical harm to the boyfriend was by use of a knife, it would not be possible for the State to retry him without involving a knife, which it is estopped from doing.

         {¶5} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, provides: "nor shall any person be subject for the same offence or be twice put in jeopardy of life or limb[.]" Benton v. Maryland, 395 U.S. 784, 787 (1969). "Section 10, Article I of the Ohio Constitution contains a similar prohibition, which is coextensive with the federal constitutional protection." State v. Turner, 9th Dist. Summit No. 27532, 2015-Ohio-996, ¶ 7. "The [Double Jeopardy Clause] provides protection from a second prosecution for the same offense after an acquittal, protection against a second prosecution after a conviction and protection against multiple punishments for the same offense." (Alteration sic.) Id., quoting State v. Resor, 6th Dist. Huron No. H-08-028, 2010-Ohio-397, ¶ 11.

         {¶6} Although the Double Jeopardy Clause does not ordinarily bar a retrial following a hung jury, it does incorporate the doctrine of collateral estoppel. Richardson v. United States, 468 U.S. 317, 324 (1984); State v. Lovejoy, 79 Ohio St.3d 440, 443-444 (1997). "[If] an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). Collateral estoppel in the criminal context bars "the state * * * from relitigating an issue decided in the defendant's favor by a valid and final judgment." (Alteration sic.) State v. Haggard, 9th Dist. Lorain No. 98CA007154, 1999 WL 812937, *2 (Oct. 6, 1999), quoting State v. Zanders, 121 Ohio App.3d 131, 134 (9th Dist.1997); see Lovejoy at 443-444. "Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." Brown v. Ohio, 432 U.S. 161, 166-167 (1977). fn. 6. Nevertheless, "a mere overlap in proof between two prosecutions does not establish a double jeopardy violation." In re Burton, 160 Ohio App.3d 750, 2005-Ohio-2210, ¶ 10 (1st Dist), quoting United States v. Felix, 503 U.S. 378, 386 (1992).

         {¶7} The United States Supreme Court has held that, if a defendant has been acquitted in a prior proceeding, courts must "examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Yeager v. United States,557 U.S. 110, 120 (2009), quoting Ashe at 444. "The defendant bears the burden of showing 'that the issue whose relitigation ...


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