FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2017-05-1814
M. KILLE, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
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.
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
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.
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
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.
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.
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).
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 ...