SUPREME before the supreme court of ohio state of ohio-vs-plaintiff-appellant christopher anderson defendant-appellee case no.: 2012-1834 on appeal from case no. 11 ma 43 before the

BEFORE THE SUPREME COURT OF OHIO

STATE OF OHIO

-vs-

PLAINTIFF-APPELLANT

CHRISTOPHER ANDERSON

DEFENDANT-APPELLEE

CASE NO.: 2012-1834

ON APPEAL FROM CASE NO. 11 MA 43BEFORE THE COURT OF APPEALS FORTHE SEVENTH APPELLATE DISTRICT

APPELLANT-STATE OF OHIO'S MERIT BRIEF

PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR

RALPH M. RIVERA, 0082063ASSISTANT PROSECUTORCounsel of Record

OFFICE OF THE MAHONING COUNTYPROSECUTOR21 W. BOARDMAN ST., 6TH FL.YOUNGSTOWN, OH 44503PH: (330) 740-2330FX: (330) 740-2008n¢ains mahonin ĉ ountyoh.govrriveraa mahonin cgL ountyoh.gov

COUNSEL FOR PLAINTIFF-APPELLANT

APR 01 2013

JOHN B. JUHASZ, 0023777

7081 WEST BLVD., SUITE 4YOUNGSTOWN, OH 44512PH: (330) 758-7700FX: (330) 758-7757jbi iurisdocgyahoo. com

COUNSEL FOR DEFENDANT-APPELLEE

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REME COURT OF OHIO

CLERK OF COURTSUPREME COURT OF OHIO

Certificate of Service

I certify that a copy of the State of Ohio's Merit Brief was sent by Regular U.S.

Mail to John B. Juhasz, Esq., at 7081 West Blvd., Suite 4, Youngstown, OH 44512, on

March 29, 2013.

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R p . Rive 2063o ppeilant-State of Ohio

ii

Table of Contents

Page No.:

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE, FACTS, ANIi INTRODUCTION ........:...................1

LAW AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...9

Proposition of Law; ... ..................................................................9

A Trial Court's Denial of a Pre-Trial Motion to Dismiss Based upon aViolation of a Defendant's Right to Due Process and the ProhibitionAgainst Double Jeopardy Following a Hung Jury is Not a Final

Appealable Order Pursuant to R.C. 2505.02.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..3 5

APPENDIX Appx. Page:

Notice of Appeal to the Supreme Court of Ohio (October 29, 2012) .....................A

Judgment Entry (En Banc Decision), Seventh District Court of Appeals

(September 25, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . ....B

Judgment Entry (Granting En Banc Consideration), Seventh District Court of Appeals(December 13, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . ..............C

Judgment Entry (Denying Reconsideration), Seventh District Court of Appeals(October 4, 2011) .. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..D

Judgment Entry (Denying State's Motion to Dismiss), Seventh District Court ofAppeals (June 10, 2011) .........................................................................E

Judgment Entry (Denying Defendant's Motion to Dismiss), Court of Common Pleas

(February 15, 2011) . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...F

iii

Table of Authorities

CASES:

Abney v. United States, 431 U.S. 651 (1977) ................................................14, 30

Arizona v. Washington, 434 U.S. 497 (1978) ............:......................................33

Benton v. Maryland, 395 U.S. 784 (1969) .......................................................32

Bishop v. Dresser Industries, 134 Ohio App.3d 321 (3'd Dist. 1999) .........................23

Blueford v. Arkansas, 132 S.Ct. 2044 (2012) ...................................................34

City ofMentor v. Babul, 11th Dist. No. 98-L-244 (July 16, 1999) ........................23, 24

Cuervo v. Snell, lOth Dist. Nos. 99AP-1442, 99AP-1'443, 99AP-1458, 2000 WL 1376510(Sept. 26, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..26

Downum v. United States, 372 U.S. 734 (1963) ................................................33

Gibson-Myers & Assocs. v. Pearce, 9th Dist. No. 19358, 1999 WL 980562(Oct. 27, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...26

Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals

Guild of Ohio, 46 Ohio St.3d 147 (1989) ................ ..................................... .18

Harpster v. Ohio, 128 F.3d 322 (6th Cir., 1997) ................................................32

In re Olivia C., 371 Ill.App.3d 473 (4t1i Dist. 2007) ............................................31

McKane v. Durston, 153 U.S. 684 (1894) .......................................................32

Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc.,114 Ohio St.3d 82 (2007) ...................................................................................18

Paul v. People, 105 P.3d 628 (Colo. 2005) ......................................................31

People ex rel. Mosley v. Carey, 74 I11.2d 527 (1979) ..........................................31

Polikoff v. Adam (1993), 67 Ohio St.3d 100 (1993) ............................................20

Oregon v. Kennedy, 456 U.S. 667 (1982) ........................................................33

State ex rel. Downs v. Panioto, 107 Ohio St.3d 347 (2006) ...................................18

iv

State ex rel. Owens v. Campbell, 27 Ohio St.2d 264 (1971) ..................................13

State ex rel. White v. Junkin, 80 Ohio St.3d 335 (1997) ...............................16, 25, 35

State v. Anderson, 7th Dist. No. 03 MA 252, 2006 Ohio 4618 ..................1, 2, 3, 4, 5, 6

State v. Anderson, 7th Dist. No. 11 MA 43, 2012 Ohio 4390 .................................... . . . . . . . . . . ..... ... . ... ... ... ... .....1, b, 9, 12, 16, 17, 19, 20, 23, 24, 25, 26, 28, 30, 32, 33, 35

State v. Anderson, 112 Ohio St.3d 1443, 860 N.E.2d 767 ......................... ...........5

State v. Apodaca, 123 N.M. 372 (1997) .........................................................31

State v. Brown, 8th Dist. No. 84229, 2004 Ohio 5587 .....................................23, 24

State v. Chambliss, 128 Ohio St.3d 507 (2011) ......................................21, 22, 27

State v. Cook, 5h Dist. No. 07 CA 39, 2007 Ohio 6446 .......................................28

State v. Crago, 53 Ohio St. 3d 243 (1990) ..........................................................................................................1, 9, 10, 13, 14, 15, 16, 17, 18, 20, 24, 27, 28, 32

State v. Crago, 48 Ohio St.3d 708 (1990) ........................................................15

State v. Eberhardt, 56 Ohio App.2d 193 (8th Dist. 1978) ......................................10

State v. Hubbard, 135 Ohio App.3d 518 (7a' Dist. 1999)............1, 7, 8, 9, 10, 17, 24, 26

State v. Hunt, 47 Ohio St.2d 170 (1976) .........................................................10

State v. Jones, l lth Dist. No. 98-P-01 16, 1999 WL 33100648 (Jan. 29, 1999) ...............28

State v. Kuttie, 7th Dist. No. 01 CA 528, 2002 Ohio 1029 .....................................20

State v. Lebron, 7th Dist. No. 99 CA 35, 1999 WL 1124762 (Nov. 22, 1999) ..............28

State v. Lile, 42 Ohio App.2d 89 (7th Dist. 1974) ..........................................10, 28

State v. Muncie, 91 Ohio St.3d 440 (2001) ................................21, 22, 23, 24, 25, 26

State v. Murphy, 537 N.W.2d 492 (Minn. Ct. App. 1995) ................................31, 32

State v. Nemes, 963 A.2d 847 (N.J. Super. Ct. App. Div. 2008) ..............................31

State v. Roper, 9th Dist. No. 20836, 2002 Ohio 7321 ..........................................33

v

State v. Saadey, 7th Dist. No. 99 CO 49, 2000 WL 1114519 (June 30, 2000) .......... 24,25

State v. Tate, 179 Ohio App.3d 71 (2008) ..............................................17, 23, 24

State v. Thomas, 61 Ohio St.2d 254 (1980) .............................................13, 14, 20

State v. Upshaw, 110 Ohio St.3d 189 (2006) .................................22, 23, 25, 26, 27

Swearingen v. Waste Technologies Industries, 134 Ohio App.3d 702(7n' Dist. 1999) ............................. ..................................................24, 25

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) .......................................27

United States v. Perez, 22 U.S. 579 (1824) ..................... ..............................33

Wenzel v. Enright, 68 Ohio St.3d 63 (1993) .....................13, 16, 25, 26, 27, 28, 30, 31

West v. Commonwealth, 249 Va. 241 (1995) ....................................................31

Youngstown v. Ortiz, 153 Ohio App.3d 271 (7th Dist. 2003) ..............................10, 17

CONSTITUTIONAL PROVISIONS:

Ohio Constitution, Article IV, Section 3(B)(2) .................................................10

STATUTES:

Am.Sub.H.B. No. 394, 1998 Ohio Laws 148 ...................................................21

R.C. 2505.02 .....................10, 11, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 35

RULES:

App.R. 26(A)(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..7

S.Ct.Prac.R. 7.01(A)(6), formally S.Ct.Prac.R. 2.2(A)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....7

vi

Statement of the Case, Facts, and Introduction

Here, this Honorable Court is presented with the State's sole proposition of law:

A Trial Court's Denial of a Pre-Trial Motion to Dismiss Based upon a Violation of a

Defendant's Right to Due Process and the Prohibition Against Double Jeopardy

Following a Hung Jury is Not a Final Appealable Order Pursuant to R.C. 2505.02.

The Seventh District, sitting en banc, concluded (2-2) that a trial court's denial of

a defendant's motion to dismiss based upon his rights to Due Process and Double

Jeopardy following a hung jury is a final appealable order pursuant to R.C. 2505.02. See

State v. Anderson, 7a' Dist. No. 11 MA 43, 2012 Ohio 4390 (Appendix B.). This is an

obvious error that directly conflicts with this Honorable Court's decisions in State v.

Crago, 53 Ohio St. 3d 243 (1990), and the Seventh District's own decision in State v.

Hubbard, 135 Ohio App.3d 518 (7th Dist. 1999).

In 2003, Defendant-Appellee Christopher Anderson was convicted of Murder and

sentenced to fifteen years to life for killing 22-year-old Amber Zurcher, who was

strangled to death in her apartment on June 3, 2003. The Seventh District previously

summarized the facts that supported Defendant's initial conviction:

In June of 2003, Amber Zurcher was 22 years old, attendedYoungstown State University and was working as a waitress. Shealso had a four-year-old child. At approximately 11:00 p.m. onthe evening of June 2, 2003, Amber went to Chipper's Bar inYoungstown. (11/18/03 Tr., p. 472.) A number of her friends andacquaintances were there, including John Orosz, a friend whogrew up in the same home as Amber but was not actually relatedto her. John Orosz owned a pizza shop near Chipper's Bar, and hewent from the pizza shop to the bar a number of times in thecourse of the evening. The following people were also atChipper's Bar that night: Sandy Shingleton, a close friend ofAmber's; Lynn Sanisteven, sister of Sandy Shingleton; VivianCampati, a fairly recent acquaintance of Amber's; Anthony(Tony) Loibl, a friend from Amber's high school days; and Dino

1

Socciarelli, another friend of Amber's. [Defendant] was at the bar

as well.

After the bar closed, all the aforementioned people went toAmber's apartment, located at 1031 Compass West, inAustintown. (11/18/03 Tr., p. 565.) They continued drinking, andsome of them became extremely intoxicated during the evening.Some of the people were smoking marijuana. At approximately2:30 a.m., John Orosz, Lynn Sanisteven, and [Defendant] left theapartment to go to Orosz's pizza shop. (11/18/03 Tr., p. 405.)According to Orosz, the three of them made pizzas andsandwiches, delivered some pizzas to the west side ofYoungstown, and then returned to Amber's apartment. (11/18/03Tr., p. 405.) After this, various people began leaving the party.Dino and Vivian left first. (11/18/03 Tr., pp. 523-524.) Tony andLynn left together sometime later. At that point, Amber was in theapartment with John Orosz, Sandy Shingleton and [Defendant].Sandy was asleep in the bedroom while the other three sat andtalked in another room.

At approximately 3:50 a.m. the three remaining guests-JohnOrosz, Sandy Shingleton and [Defendant]-left Amber'sapartment. (11/18/03 Tr., p. 408.) Orosz gave Amber a hug,locked the door from the inside, closed the door, and checked tosee that it was locked. (11/18/03 Tr., p. 410.) Orosz testified thatAmber was fully clothed at the time he left. (11/18/03 Tr., p. 410.)Orosz, Shingleton and [Defendant] then left in [Defendant]'s car.[Defendant] drove the short distance to Orosz's pizza shop, anddropped off the two passengers. (11/18/03 Tr., p. 425.)[Defendant] drove away, and Orosz did not know his destination.(11/18/03 Tr., p. 425.)

Later that morning, Amber's mother (Diane Whiteman) wasconcerned that Amber had not picked up her son. Amber wasscheduled to pick up her son at 6:00 a.m. After a number ofunsuccessful attempts to reach her by phone, Ms. Whiteman wentto Amber's apartment. She obtained a key from the apartmentmanager, entered the apartment, and found her daughter dead,lying naked on the floor near the door. She immediately called thepolice. Later investigations did not find any signs of forced entryinto the apartment, and the apartment did not appear to have beenrobbed. (11/18/03 Tr., p. 569.)

There were ligature marks around Amber's neck consistentwith strangulation by a cord or wire. (11/18/03 Tr., p. 577.) The

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police were not able to identify what cord or wire was used to

strangle her.

Samples were taken from under Amber's fingernails and from abite wound in her left breast. [Defendant]'s DNA was identifiedin the fingernail sample, along with that of her son and anunidentified third person. Only [Defendant]'s DNA was found inthe breast wound.

On June 6, 2003, the day of Amber's funeral, a number of herfriends gathered at Chipper's Bar to reminisce. [Defendant]arrived and was wearing a jacket with long sleeves. When heremoved the jacket, witnesses noticed scratches on his hands andarms that were not there three nights earlier. John Oroszconfronted [Defendant] about the scratches. (11/18/03 Tr., p.416.) Orosz also contacted the police with this information.[Defendant] failed to show up at the police station to havepictures taken of the scratches or to discuss the DNA test results.(11/18/03 Tr., p. 613.)

On August 20, 2003, detectives executed a search warrant of[Defendant]'s home. An arrest warrant was issued soon afterward,but police could not locate [Defendant]. On August 22, 2003,based on an anonymous tip, [Defendant] was located and arrestedat the Super 8 Motel in Liberty Township, Trumbull County. Theroom was not registered in [Defendant]'s name.

On August 29, 2003, [Defendant] was indicted for the murderof Amber Zurcher pursuant to R.C. § 2903.02(A), (D).[Defendant] was found to be indigent, and counsel was appointed.Trial was set for May 27, 2003. On the day of trial, [Defendant]filed a motion to prevent the state from introducing evidence ofprior bad acts as set forth in Evid.R. 404. [Defendant] wished toprevent Donna Dripps from testifying about an incident in which[Defendant] allegedly choked her and bit her on one breast.[Defendant] also wished to prevent Bradley Windle, his probationofficer, from testifying. The trial judge sustained the motion toprohibit any evidence involving the Donna Dripps' incident;Bradley Windle was permitted to testify under certain restrictions.(5/27/03 Tr., pp. 334 ff.)

During the trial, witness Nichole Ripple made a reference tothe attack on Donna Dripps. (5/27/03 Tr., p. 374.) Ms. Rippletestified that: "[Amber] said, no, he's a freak. He tried to stranglehis ex-girlfriend." (5/27/03 Tr., p. 374.) Ms. Ripple's commentwas repeated on the evening news. The next day, the trial court

3

declared a mistrial based on the undue prejudice caused by Ms.Ripple's comment and by the media attention to it.

Retrial was scheduled for November 18, 2003. Prior to retrial,the state filed a motion in limine to allow Donna Dripps andBradley Windle to testify. (10/15/03 Motion in Limine.)[Defendant] did not respond to the motion. The motion was heardimmediately prior to retrial, and [Defendant]'s counsel indicatedthen that he had not received the motion. The court proceededwith the hearing, and [Defendant]'s counsel restated his earlierarguments concerning the unfounded nature of Donna Dripps'testimony. He also relied on the fact that the trial court haddeclared a mistrial based on the slightest mention of the incident.The trial court changed its position, though, and allowed DonnaDripps to testify. She described an incident on February 16, 2002,in which she was visiting her brother and his roommate, and inwhich [Defendant] was also present. (11/18/03 Tr., pp. 781-782.)She testified that at about 4:00-4:30 a.m., Donna's brother androommate went to bed upstairs and she was left alone in the roomwith [Defendant]. (11/18/03 Tr., p. 786.) She stated that[Defendant] kissed her, picked her up and carried her to abedroom, put his hands around her throat and choked her. Shetestified that he fondled and grabbed her, and bit her on the breast.(11/18/03 Tr., p. 788.) She noted that he did not attempt tounbutton or take off her pants. She recalled that the struggle lastedabout 20 minutes, after which [Defendant] rolled off of her andpassed out. (11/18/03 Tr., p. 791.)

During trial, a number of the people who had been at Amber'sapartment on the morning of the murder were called to testify,including Sandra Shingleton, Anthony Loibl, Vivian Campati, andDino Socciarelli. They testified about the events leading up to thetime of the murder, and they all identified [Defendant] as being atthe party at Amber's house. Orosz testified extensively as to thetiming of the events of that night. He indicated that he left with[Defendant] and Sandy Shingleton just before 4:00 a.m., and thatAmber was alive and well at that time.

Deputy Coroner Jesse Giles testified that the approximate timeof death was 4:00 a.m. Amber had multiple bruises on her body,and there was a distinct contusion on her left breast that appearedto be "more of a love bite or a hickey or a sucker bite." (11/18/03Tr., p. 740.) She also had a deep scalp contusion. All of theseoccurred fairly close to the time of death. There were ligaturemarks completely around her neck, indicating at least four loopsof some type of cord. The precise type of cord was not identified.

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The cause of death was determined to be asphyxia due to ligaturestrangulation. (11/18/03 Tr., p. 758.)

Melissa Zielaskiewicz, a forensic scientist at the Ohio Bureauof Criminal Identification and Investigation, testified that[Defendant]'s DNA was found in the test sample taken fromAmber's left breast. (11/18/03 Tr., p. 833.) No other person'sDNA was found in that sample. [Defendant]'s DNA was alsofound under Amber's left fingernails, along with a lesser amountof DNA from Amber's son and that of an unidentified thirdperson. (11/18/03 Tr., pp. 834-838.) There was no evidence offoreign DNA in the oral, vaginal, or rectal samples taken fromAmber. (11/18/03 Tr., p. 828.)

On November 26, 2003, the jury returned a guilty verdict onthe charge of murder. After a sentencing hearing, [Defendant] wassentenced to 15 years to life in prison. (12/4/03 J.E.).

State v. Anderson, 7th Dist. No. 03 MA 252, 2006 Ohio 4618, at ¶¶ 2-16. The Seventh

District, however, reversed Defendant's conviction after it concluded that testimony

regarding his other crimes and bad acts amounted to cumulative error. See id. at ¶ 128,

appeal not accepted, 112 Ohio St.3d 1443, 860 N.E.2d 767.

The testimony regarding Defendant's other crimes and bad acts was provided by

Donna Dripps (Defendant's previous victim four months earlier) and Bradley Windle

(Defendant's probation officer). See id. at ¶ 1.

During Defendant's first trial, the trial court excluded the introduction of evidence

that Defendant previously attacked and strangled Donna Dripps in a manner similar to

Amber Zurcher. See id. During trial, the trial judge declared a mistrial after a witness,

Nicole Ripple, mentioned the Donna Dripps incident through hearsay evidence.

At Defendant's second trial, the trial court allowed Donna Dripps herself to testify

about the prior incident, in which Appellant choked her and bit her breast, as he

subsequently did to Amber Zurcher. See id. at ¶ 19.

5

Bradley Windle (Defendant's probation officer) testified about a number of

probation violations that occurred immediately prior to and during Amber Zurcher's

murder investigation. See id.

Thus, following Defendant's conviction during his second trial, the Seventh

District concluded (2-1) that the trial court erred in allowing Donna Dripps and Bradley

Windle to testify, and their testimony regarding Defendant's other crimes and bad acts

amounted to cumulative error. See id. at ¶ 128.

Defendant's third trial began in December 2008, but resulted in a hung jury. See

Anderson, 2012 Ohio 4390, ¶ 6.

Defendant's fourth trial began in April 2010, but ended in a mistrial trial after one

of Defendant's trial counsel fell asleep during voir dire. The trial court declared a mistrial

after a potential juror commented on this fact in front of the entire venire. See id. at ¶ 7.

Defendant's fifth trial began in August 2010, but for the second time, ended in a

hung jury. See id. at ¶ 8.

On February 2, 2011, prior to Defendant's sixth trial, Defendant filed a Motion to

Dismiss Indictment and for Discharge, in which he argued that making him submit to a

sixth trial violated his right to Due Process and the prohibition against Double Jeopardy.

On February 15, 2011, the trial court denied Defendant's motion to dismiss.

(Appendix F.) Thereafter, Defendant filed a notice of appeal on March 17, 2011.

On March 28, 2011, the State filed a motion to dismiss Defendant's appeal based

upon this Court's opinion in Crago, and argued that the trial court's denial of his motion

to dismiss was not a final appealable order pursuant to R.C. 2505.02. On June 10, 2011,

the Seventh District, however, denied (2-1) the State's motion. (Appendix E.)

6

The State filed an Application for En Banc Consideration and Reconsideration on

June 20, 2011, because the Seventh District previously followed and applied Crago. In

Hubbard, the Seventh District held "the overruling of a motion to dismiss on the grounds

of double jeopardy is not an appealable order subject to immediate review." Hubbard,

135 Ohio App.3d at 522. This previous holding formed the basis of the State's

Application for En Banc Consideration.

The State's Application for Reconsideration was denied on October 4, 2011.

(Appendix D.)

The State's Application for En Banc Consideration was granted on December 13,

2011. (Appendix C.) Oral argument was held on February 2, 2012.

On September 25, 2012, sitting en banc, a majority of Seventh District judges

were unable to concur on whether or not the trial court's denial of Defendant's motion to

dismiss was a final appealable order. Thus, the original panel's decision in which the

Seventh District denied the State's motion to dismiss remained. See App.R. 26(A)(2)(d).

The Seventh District erroneously concluded that based upon "the applicable law

and limited to the very specific facts of this case where there have been multiple

mistrials," the trial court's denial of a motion to dismiss based upon a defendant's right to

due process and prohibition against double jeopardy is a final appealable order pursuant

to R.C. 2505.02. (Appendix E, ¶ 4.)

On October 29, 2012, the State filed its Notice of Appeal and Memorandum in

Support of Jurisdiction pursuant to S.Ct.Prac.R. 7.01(A)(6), formerly S.Ct.Prac.R.

2.2(A)(6). Defendant filed his response on November 26, 2012. On February 6, 2013, this

Honorable Court accepted jurisdiction of the State's appeal.

7

The State now responds with its Merit Brief and requests that this Honorable

Court Vacate the Seventh District's decision, and hold that the trial court's denial of a

motion to dismiss based upon a defendant's right to due process and prohibition against

double jeopardy is not a final appealable order pursuant to R.C. 2505.02.

8

Law and Argument

Proposition of Law: A Trial Court's Denial of a Pre-TrialMotion to Dismiss Based upon a Violation of a Defendant's Rights toDue Process and the Prohibition Against Double Jeopardy Followinga Hung Jury is Not a Final Appealable Order Pursuant to R.C.

2505.02.

As for the State of Ohio's sole proposition of law, the State contends that a trial

court's denial of a pre-trial motion to dismiss based upon a violation of a defendant's

rights to due process and the prohibition against double jeopardy following a hung jury is

not a final appealable order pursuant to R.C. 2505.02.

Here, the trial court denied Defendant's motion to dismiss in which he argued that

a sixth trial following a hung jury violated his right to due process and the prohibition

against double jeopardy. The Seventh District, sitting en banc, erroneously concluded (2-

2) that based upon "the applicable law and limited to the very specific facts of this case

where there have been multiple mistrials," the trial court's denial of Defendant's motion

to dismiss is a final appealable order pursuant to R.C. 2505.02. (Appendix E, ¶ 4.)

Therefore, the Seventh District's decision must be reversed, because the Seventh

District ignored this Honorable Court's clear precedent in Crago when it concluded that

the trial court's denial of Defendant's motion to dismiss following a hung jury and

declaration of a mistrial is a final appealable order pursuant to R.C. 2505.02.

As Judge Vukovich's dissenting opinion pointed out, "an appellate court cannot

violate Supreme Court precedent because the appellate court disagrees with that

precedent, especially in response to a defendant's claim that we should ignore the

Supreme Court's position because it is `absurd."' Anderson, 2012 Ohio 4390, at ¶ 50

9

(Vukovich, J., dissenting), citing Crago, 53 Ohio St.3d at 245. But that is exactly what

the Seventh District did.

A. IN CRIMINAL CASES, OHIOAPPELLATE COURTS ONLY ACQUIREJURISDICTION OVER THOSE TRIAL COURTORDERS THAT ARE FINAL AND APPEALABLEPURSUANT TO THE REOUIREMENTS IN R.C. 2505.02.

It is well settled that Ohio's appellate courts have subject matter jurisdiction over

lower courts' decisions only if those decisions are final orders or judgments. See Ohio

Constitution, Article IV, Section 3(B)(2). Thus, "[i]f an order is not final, then an

appellate court has no jurisdiction to review the matter and the appeal must be

dismissed." Youngstown v. Ortiz, 153 Ohio App.3d 271, 276 (7"' Dist. 2003), citing

Hubbard, 135 Ohio App.3d at 522.

In criminal cases, a trial court order is final and appealable only if the

requirements set forth in R.C. 2505.02 are met. Ortiz, 153 Ohio App.3d at 276, citing

Crago, 53 Ohio St.3d at 244. "Generally, the final appealable order in a criminal case is

the sentencing order." Ortiz, 153 Ohio App.3d at 276, citing State v. Hunt, 47 Ohio St.2d

170, 174 (1976).

Furthermore, the denial of a defendant's motion to dismiss in a criminal case is

generally not considered a final appealable order. See State v. Eberhardt, 56 Ohio App.2d

193, 197 (8' Dist. 1978), citing State v. Lile, 42 Ohio App.2d 89, 90 (7t1i Dist. 1974).

To satisfy R.C. 2505.02 in criminal cases, the trial court order must satisfy one of

the following requirements before an appellate court may acquire jurisdiction:

(1) An order that affects a substantial right in an action that ineffect determines the action and prevents a judgment;

10

(2) An order that affects a substantial right made in a specialproceeding or upon a summary application in an action after

judgment;

(3) An order that vacates or sets aside a judgment or grants a new

trial;

(4) An order that grants or denies a provisional remedy and towhich both of the following apply:

(a) The order in effect determines the action with respect to theprovisional remedy and prevents a judgment in the actionin favor of the appealing party with respect to the

provisional remedy.

(b) The appealing party would not be afforded a meaningful oreffective remedy by an appeal following final judgment asto all proceedings, issues, claims, and parties in the action.

(5) An order that determines that an action may or may not be

maintained as a class action;

(6) An order determining the constitutionality of any changes tothe Revised Code made by Am. Sub. S.B. 281 of the 124thgeneral assembly, including the amendment of sections1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02,2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24,2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and5111.018, and the enactment of sections 2305.113, 2323.41,2323.43, and 2323.55 of the Revised Code or any changesmade by Sub. S.B. 80 of the 125th general assembly, includingthe amendment of sections 2125.02, 2305.10, 2305.131,2315.18, 2315.19, and 2315.21 of the Revised Code;

(7) An order in an appropriation proceeding that may be appealedpursuant to division (B)(3) of section 163.09 of the Revised

Code.

R.C. 2505.02(B). Here, the issue is whether a trial court's denial of a defendant's pre-trial

motion to dismiss based upon a violation of his right to due process and the prohibition

against double jeopardy following a hung jury and declaration of a mistrial is a final and

appealable order pursuant to R.C. 2505.02.

11

THE DENIAL OF DEFENDANT'SPRE-TRIAL MOTION TO DISMISSBASED ON THE PROHIBITION AGAINSTDOUBLE JEOPARDY AND HIS RIGHT TODUE PROCESS FOLLOWING A HUNG JURY ANDDECLARATION OF A MISTRIAL IS NOT A FINALAPPEALABLE ORDER PURSUANT TO R.C. 2505.02.

Here, prior to Defendant's sixth trial (following one reversal and four mistrials),

Defendant filed a Motion to Dismiss Indictment and for Discharge, in which he argued

that making him submit to a sixth trial violated his right to Due Process and the

prohibition against Double Jeopardy. Defendant sought appellate review after the trial

court denied his motion.

The Seventh District, sitting en banc, concluded (2-2) that the trial court's denial

of Defendant's motion to dismiss based upon his rights to Due Process and Double

Jeopardy following a hung jury was a final appealable order pursuant to R.C. 2505.02.

See Anderson, 2012 Ohio 4390, at ¶ 28.

The Seventh District reasoned that Crago and Hubbard were distinguishable,

because they only addressed a double jeopardy argument rather than a double jeopardy

and a due process argument. See Anderson, 2012 Ohio 4390, at ¶ 13. The court also

stated that the facts were distinguishable, because Defendant raised this argument before

his sixth trial, while Crago and Hubbard both addressed a double jeopardy argument

after only one trial. See id. at ¶ 15.

In analyzing R.C. 2505.02, the Seventh District found that a motion to dismiss fell

into the category of provisional remedies. See id. at ¶ 24. The court then reasoned that

Defendant would be denied a meaningful appeal if he was unable to assert his argument

before his sixth trial. See id. at ¶ 24.

12

Thus, the Seventh District erroneously concluded that based upon "the applicable

law and limited to the very specific facts of this case where there have been multiple

mistrials," the trial court's denial of a motion to dismiss based upon a defendant's right to

due process and prohibition against double jeopardy is a final appealable order pursuant

to R.C. 2505.02. (Appendix E, ¶ 4.) This is an obvious error that directly conflicts with

this Honorable Court's decisions in Crago and Wenzel v. Enright, 68 Ohio St.3d 63

(1993).

a.) This Honorable Court's ClearPrecedent has Held that the Denialof a Defendant's Motion to Dismisson Double Jeopardy Grounds is Not a FinalAppealable Order, and the Proper Remedyfor Seeking Judicial Review is a Direct AppealAfter Trial Court Proceedings Have Concluded.

In 1980, this Court held that the trial court's denial of a motion to dismiss on

double jeopardy grounds was a final appealable order. State v. Thomas, 61 Ohio St.2d

254, 257-258 (1980), overruling State ex rel. Owens v. Campbell, 27 Ohio St.2d 264, 267

(1971).

This Court's opinion in Thomas effectively overruled its earlier decision in State

ex rel. Owens v. Campbell, in which this Court held that "[t]he extraordinary original

jurisdiction granted to an Ohio appellate court may be invoked to adjudicate the right of

an accused to the benefit of the doctrine of collateral estoppel, made applicable to the

state as being within the federal constitutional right against double jeopardy by Ashe v.

Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469." Owens, 7 Ohio St.2d at

syllabus.

13

In Thomas, the defendant was charged with an aggravated robbery that occurred

on October 18, 1977. See Thomas, 61 Ohio St.2d at 255. The Defendant pleaded guilty to

the lesser-included offense of robbery on January 25, 1978, and was sentenced on

February 13, 1978. See id. Thereafter, on April 17, 1978, the defendant was charged with

involuntary manslaughter after the victim died from injuries sustained during the robbery.

See id. The defendant filed a motion to dismiss based on double jeopardy grounds, but

the trial court denied the motion. See id.

The defendant appealed the trial court's denial, but the appellate court determined

that the trial court's denial was not a final appealable order. See id. This Court accepted

the defendant's discretionary appeal. See id.

In Thomas, this Court reasoned that the trial court's order affected a "substantial

right" (double jeopardy), and review before judgment was necessary to preserve this

right. See id. at 258, citing Abney v. United States, 431 U.S. 651, 660 (1977). This Court

then concluded that a defendant's motion to dismiss was a "special proceeding," because

"an erroneous decision on a double jeopardy claim cannot be effectively reviewed after

judgment within the second trial ** *." See Thomas, 61 Ohio St.2d at 258.

Thus, this Court held in Thomas that the denial of a pre-trial motion to dismiss

based upon double jeopardy grounds was a final appealable order pursuant to R.C.

2953.02 and 2505.02. See id.

This Court, however, overruled Thomas ten years later in Crago.

In Crago, a jury found the defendant guilty of aggravated robbery and

kidnapping. See Crago, 53 Ohio St. 3d at 243. The jury found the defendant not guilty of

aggravated murder that arose from the kidnapping, but instead found him guilty of

14

involuntary manslaughter. See id. The trial court, however, declared a mistrial after the

jury was unable to reach a verdict on the aggravated murder that arose from the

aggravated robbery. See id.

Before the defendant could be retried, he filed a motion to dismiss on double

jeopardy and collateral estoppel grounds. See id. at 243-244. The trial court denied his

motion and the defendant appealed. See id. at 244. The Tenth District affirmed the trial

court's denial based upon double jeopardy, but affirmed in-part the court's decision in

regards to collateral estoppel. See id. The Tenth District concluded that collateral estoppel

barred the retrial of aggravated murder that arose from the kidnapping. See id.

This Court accepted the defendant's discretionary appeal. See id. After briefing

and oral argument, this Court sua sponte ordered the parties to brief the following issue:

"[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.) Id., quoting State v. Crago, 48 Ohio St.3d 708 (1990).

In Crago, this Court recognized that a trial court's denial of a motion to dismiss

based upon double jeopardy grounds is not a final order, because it does not meet any of

three prongs set forth in R.C. 2505.02. See Crago, 53 Ohio St. 3d at 244. When Crago

was decided in 1990, R.C. 2505.02 read as follows:

An order that affects a substantial right in an action which in effectdetermines the action and prevents a judgment, an order thataffects a substantial right made in a special proceeding or upon asummary application in an action after judgment, or an order thatvacates or sets aside a judgment or grants a new trial is a finalorder that may be reviewed, affirmed, modified, or reversed, withor without retrial.

15

Id. at 244, fn. 2, quoting R.C. 2505.02. Thus, this Court specifically held that "[t]he

overruling of a motion to dismiss on the ground of double jeopardy is not a final

appealable order." Crago, at syllabus.

Here, the Seventh District was bound by this Court's decision in Crago, because

this Court has not overruled or modified it in anyway. To the contrary, in Wenzel v.

Enright, this Court reaffirmed Crago:

To avoid any further confusion on this issue, we now hold thatthe decision of a trial court denying a motion to dismiss on theground of double jeopardy is not a final appealable order, and isnot subject to judicial review through an action in habeas corpus orprohibition, or any other action or proceeding invoking the originaljurisdiction of an appellate court. We further hold that, in Ohio, theproper remedy for seeking judicial review of the denial of a motionto dismiss on the ground of double jeopardy is a direct appeal tothe court of appeals at the conclusion of the trial court proceedings.

Wenzel, 68 Ohio St.3d at 66-67; see also State ex Yel. White v. Junkin, 80 Ohio St.3d 335,

338 (1997) (concluding that a direct appeal is the appropriate avenue to challenge a pre-

trial denial of a motion to dismiss on double jeopardy grounds).

Therefore, the Seventh District ignored this Court's clear precedent that "[t]he

overruling of a motion to dismiss on the ground of double jeopardy is not a final

appealable order." Crago, at syllabus. And it remains that "the proper remedy for seeking

judicial review of the denial of a motion to dismiss on the ground of double jeopardy is a

direct appeal to the court of appeals at the conclusion of the trial court proceedings."

Wenzel, 68 Ohio st.3d at 66-67.

Furthermore, Defendant's due process argument is equally applicable to this

Court's precedent that dealt strictly with double jeopardy. As Judge Vukovich's

dissenting opinion pointed out, "[i]f the denial of a motion to dismiss on double jeopardy

16

and collateral estoppel grounds does not involve a substantial right that determines the

action and prevents a judgment, then neither does the denial of a motion to dismiss on

double jeopardy and due process grounds." Anderson, 2012 Ohio 4390, at ¶ 67

(Vukovich, J., dissenting), citing Crago, 53 Ohio St.3d at 244, fn. 2, Hubbard, 135 Ohio

App.3d at 522, and State v. Tate, 179 Ohio App.3d 71, 77-78 (2008) Accordingly, "there

is no reason to treat the labels for the motion differently for purposes of appealability."

Anderson, 2012 Ohio 4390, at ¶ 66 (Vukovich, J., dissenting).

b.) Pursuant to Crazo and Wenzel,a Defendant's Motion to Dismiss BasedUpon Due Process and Double JeopardyGrounds is Not a Final Appealable OrderPursuant to R.C. 2505.02, and the ProperRemedy for Seekin2 Judicial Review Remainsa Direct Appeal After a Defendant is Convicted.

As stated above, a trial court order must satisfy one of the following requirements

in R.C. 2505.02(B) before an appellate court may acquire jurisdiction. See Ortiz, 153

Ohio App.3d at 276, citing Crago, 53 Ohio St.3d at 244.

i.) R.C. 2505.02(B)(1).

First, an appellate court can acquire jurisdiction over "[a]n order that affects a

substantial right in an action that in effect determines the action and prevents a

judgment[.]" R.C. 2505.02(B)(1). "`Substantial right' means a right that the United States

Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure

entitles a person to enforce or protect." R.C. 2505.02(A)(1).

Here, there is no doubt that Defendant's rights to due process and the prohibition

against double jeopardy are "substantial rights" that both the U.S. and Ohio Constitutions

17

recognize. The question here is whether the trial court's denial of Defendant's motion to

dismiss "in effect determines the action and prevents a judgment[.]" R.C. 2505.02(B)(l).

To begin, this Court specifically concluded in Crago that the trial court's denial of

a motion to dismiss on, double jeopardy grounds did not involve a substantial right that

determined the action and prevented a judgment in the defendant's favor. See Crago, 53

Ohio St.3d at 244. This subsection has remained unaffected since Crago was decided;

thus, Crago remains controlling in regards to whether the trial court's denial determined

the action and prevented a judgment in favor of Defendant. See R.C. 2505.02(B)(1).

More recently, this Court has stated that "[f]or an order to determine the action

and prevent a judgment for the party appealing, it must dispose of the whole merits of the

cause or some separate and distinct branch thereof and leave nothing for the

determination of the court." Natl. City Commercial Capital Corp. v. AAAA at Your Serv.,

Inc., 114 Ohio St.3d 82, 83 (2007), quoting Hamilton Cty. Bd. of Mental Retardation &

Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 153

(1989), and citing State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, ¶ 20 (2006).

In accordance with Natl. City Commercial Capital Corp., the trial court's denial

of Defendant's motion to dismiss did not "dispose of the whole merits of the cause" and

"leave nothing for the determination of the court." Natl. City Commercial Capital Corp.,

114 Ohio St.3d at 83. Following the denial, the "whole merits" (whether Defendant

murdered Amber Zurcher) remained, which was to be answered by the trier of fact at

trial. Thus, the trial court's denial did not determine the action and prevent a judgment for

Defendant.

18

Furthermore, Defendant's due process argument is equally applicable to the

double jeopardy analysis, because both arguments (whether under due process or double

jeopardy) seek to avoid an additional trial. Accordingly, "there is no reason to treat the

labels for the motion differently for purposes of appealability." Anderson, 2012 Ohio

4390, at ¶ 66 (Vukovich, J., dissenting). Thus, the Seventh District did not acquire

jurisdiction merely because Defendant added a due process argument to his motion to

dismiss.

Finally, Defendant only argued that the Seventh District acquired jurisdiction

through R.C. 2505.02(B)(1) (Appellant's Reply to State's Motion to Dismiss Appeal,

April 5, 2011, at 1.); see Anderson, 2012 Ohio 4390, at ¶ 62 (Vukovich, J., dissenting).

Defendant did not address any other subsections in R.C. 2505.02(B).

Therefore, the Seventh District did not acquire jurisdiction through R.C.

2505.02(B)(1) over the trial court's denial of Defendant's motion to dismiss on due

process and double jeopardy grounds.

ii.) R.C. 2505.02(B)(2).

Second, an appellate court can acquire jurisdiction over "[a]n order that affects a

substantial right made in a special proceeding or upon a summary application in an action

after judgment[.]"R.C. 2505.02(B)(2).

Again, there is no doubt that Defendant's rights to due process and the prohibition

against double jeopardy are "substantial rights" that both the U.S. and Ohio Constitutions

recognize. The question here is whether the trial court's denial of Defendant's motion to

dismiss was "made in a special proceeding." R.C. 2505.02(B)(2).

19

Revised Code 2505.02(A)(2) defines "special proceedings" as "an action or

proceeding that is specially created by statute and that prior to 1853 was not denoted as

an action at law or a suit in equity." See also State v. Kuttie, 7th Dist. No. 01 CA 528,

2002 Ohio 1029, *1, citing Polikoffv. Adam ( 1993), 67 Ohio St.3d 100, 107 (1993), and

former R.C. 2505.02(A)(1).

In Thomas, this Court concluded that a proceeding on a defendant's motion to

dismiss for double jeopardy should be considered a special proceeding within R.C.

2505.02. See Thomas, 61 Ohio St.2d at 258. This Court, however, overruled Thomasin

Crago when it specifically concluded that the trial court's denial of a motion to dismiss

on double jeopardy grounds did not affect a substantial right made in a special

proceeding. See Crago, 53 Ohio St.3d at 244; Anderson, 2012 Ohio 4390, at ¶ 63

(Vukovich, J., dissenting). Thus, Crago remains controlling, because this subsection too

has remained unaffected since Crago was decided.

Again, Defendant's due process argument is equally applicable to the double

jeopardy analysis. See Anderson, 2012 Ohio 4390, at ¶¶ 66-67 (Vukovich, J., dissenting).

Furthermore, Defendant failed to set forth any argument before the Seventh

District that it acquired jurisdiction through R.C. 2505.02(B)(2), and the Seventh District

likewise did not find that it acquired jurisdiction through R.C. 2505.02(B)(2). See

Anderson, 2012 Ohio 4390, at ¶¶ 1-44.




20

iii.) R.C. 2505.02(B)(3).

Third, an appellate court can acquire jurisdiction over "[a]n order that vacates or

sets aside a judgment or grants a new trial[.]" R.C. 2505.02(B)(3).

Here, Defendant did not appeal an order that vacated a judgment or granted a new

trial.




iv.) R.C.2505.02(B)(4).

Fourth, an appellate court can acquire jurisdiction over "[a]n order that grants or

denies a provisional remedy" if that order "determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the appealing party

with respect to the provisional remedy[,]" and "[t]he appealing party would not be

afforded a meaningful or effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action." R.C. 2505.02(B)(4).

Here, Appellant did not contend that the court acquired jurisdiction through R.C.

2505.02(B)(4) before the Seventh District. The Seventh District, however, appeared to

have based its decision on this subsection.1

In State v. Muncie, this Court previously set forth a three-part test to determine

whether a decision granting or denying a provisional remedy is a final order:

(1) the order must either grant or deny relief sought in a certaintype of proceeding-a proceeding that the General Assembly calls

1 Revised Code 2505.02(B)(4) did not exist when Crago and Wenzel were decided, but

was later added when R.C. 2505.02 was amended in 1998 by Am.Sub.H.B. No. 394,

1998 Ohio Laws 148.

21

a "provisional remedy," (2) the order must both determine theaction with respect to the provisional remedy and prevent ajudgment in favor of the appealing party with respect to theprovisional remedy, and (3) the reviewing court must decide thatthe party appealing from the order would not be afforded ameaningful or effective remedy by an appeal following finaljudgment as to all proceedings, issues, claims, and parties in the

action.

State v. Chambliss, 128 Ohio St.3d 507, 509 (2011), quoting State v. Muncie, 91 Ohio

St.3d 440, 446 (2001); see R.C. 2505.02(B)(4).

A.) Provisional Remedy.

First, the trial court's denial of Defendant's motion to dismiss (whether it's based

upon double jeopardy or due process grounds) was not a provisional remedy.

Revised Code 2505.02(A)(3) defines a "provisional remedy" as "a proceeding

ancillary to an action, including, but not limited to, a proceeding for a preliminary

injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-

facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie

showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to

division (A)(3) of section 2307.93 of the Revised Code."

For example, this Court concluded in Muncie that an order for forced medication

was a provisional remedy, because "the involuntary administration of medication to an

accused person for the purpose of restoring that person's competency to face criminal

charges `aids' in the resolution of the criminal proceeding and is `attendant upon' that

proceeding." Muncie, 91 Ohio St.3d at 450.

Likewise in Upshaw, this Court concluded that an order finding a criminal

defendant incompetent to stand trial that compels treatment to restore his competency is a

22

provisional remedy, because it aids the criminal proceeding. See State v. Upshaw, 110

Ohio St.3d 189, 192-193 (2006).

Here, Defendant's motion to dismiss does not involve a provisional remedy,

because his motion to dismiss the indictment is not ancillary to the criminal action.

In Muncie, this Court adopted the defendants' broader definition of ancillary:

"[a]n ancillary proceeding is one that is attendant upon or aids another proceeding."

Muncie, 91 Ohio St.3d at 448, quoting Bishop v. Dresser Industries, 134 Ohio App.3d

321, 324 (3' Dist. 1999); see also R.C. 2505.02(A)(3).

For example, the Seventh District previously concluded that a defendant's motion

to dismiss his indictment was not ancillary to the criminal action, because it did not aid

the action and is not attendant upon the action. See Anderson, 2012 Ohio 4390, at ¶ 59

(Vukovich, J., dissenting), citing Tate, 179 Ohio App.3d 76 (concluding that a trial

court's denial of a defendant's motion for discharge under Criminal Rule 12(K) is not a

final appealable order), and State v. Brown, 8th Dist. No. 84229, 2004 Ohio 5587, ¶ 11

(concluding that the trial court's sua sponte dismissal of a criminal complaint pursuant to

Criminal Rule 48(B) without prejudice is not a final appealable order).

Further, the Eleventh District recognized that "a motion to dismiss is not

`provisional' in nature because the status quo may not be preserved depending on how

the trial court rules on the motion. For instance, if the trial court grants the motion to

dismiss, then the adjudication of the motion may be dispositive of the entire proceeding."

Anderson, 2012 Ohio 4390, at ¶ 60 (Vukovich, J., dissenting), City of Mentor v. Babul,

11 th Dist. No. 98-L-244 (July 16, 1999).

23

Unlike the order in Muncie, a defendant's pre-trial motion to dismiss (whether it's

based upon double jeopardy and/or due process) cannot be ancillary to the action,

because it seeks to terminate the entire criminal proceeding against the defendant rather

than aid the criminal action. Accordingly, Defendant's motion to dismiss his indictment

on double jeopardy and due process grounds does not involve a provisional remedy,

because it is not ancillary to the criminal action. See Anderson, 2012 Ohio 4390, at ¶ 61

(Vukovich, J., dissenting), citing Hubbard, 135 Ohio App.3d at 521, Tate, 179 Ohio

App.3d at 76, Brown, supra at ¶ 11, and Babul, supra.

Thus, Judge Vukovich's dissenting opinion properly concluded that the Seventh

District did not acquire jurisdiction over the trial court's denial of Defendant's motion to

dismiss pursuant to R.C. 2505.02(B)(4).

B.) Determine the Action and Preventa Judgment in Defendant's Favor.

Second, this Court previously concluded in Crago that the denial of a defendant's

motion to dismiss on double jeopardy and collateral estoppel grounds did not determine

the action and prevent a judgment for the appealing party. See Crago, 53 Ohio St.3d at

244. While R.C. 2505.02(B)(4)(a) did not exist when Crago was decided, its language

mirrors R.C. 2505.02(B)(1) that did exist.

For example, as stated above, this Court found in Muncie that an order for forced

medication determined the action:

The forced medication order issued by the trial court determinedthe action against Muncie with respect to Ross's petition for forcedmedication. The order definitively provided that the physicians atTwin Valley could administer medication to Muncie against hiswill in an effort to restore his competency to stand trial. The orderalso prevented a judgment in favor of Muncie with respect to theproceeding for forced medication, as it contained no provision

24

permitting Muncie to contest either the administration or dosageamounts of the drugs listed in Ross's letter.

Muncie, 91 Ohio St.3d at 450-451, citing Swearingen v. Waste Technologies Industries,

134 Ohio App.3d 702, 713 (7th Dist. 1999), and State v. Saadey, 7th Dist. No. 99 CO 49,

2000 WL 1114519 (June 30, 2000).

Likewise in Upshaw, the finding that the criminal defendant was incompetent to

stand trial required him to begin treatment in a lock-down facility. See Upshaw, 110 Ohio

St.3d at 193. This order determined the action, because a later reversal (assuming it was

erroneous) could not cure the deprivation of liberty during his period of commitment and

treatment. See id.

Unlike Muncie and Upshaw, the trial court's denial of Defendant's motion to

dismiss could be cured should an appellate court conclude that the trial court's order was

erroneous.

Thus, the trial court's denial of Defendant's motion to dismiss his indictment on

double jeopardy and due process grounds did not determine the action and prevent a

judgment for Defendant.

C.) Meaningful and Effective Remedy.

Third, this Court also previously concluded that a defendant has a meaningful and

effective remedy in the ordinary course of law to challenge a trial court's adverse

decision on a double jeopardy issue. See Anderson, 2012 Ohio 4390, at ¶ 55 (Vukovich,

J., dissenting), citing Wenzel, 68 Ohio St.3d at 66, and State ex rel. White, 80 Ohio St.3d

at 338.

"This division of the final order statute recognizes that, in spite of courts' interest

in avoiding piecemeal litigation, occasions may arise in which a party seeking to appeal

25

from an interlocutory order would have no adequate remedy from the effects of that order

on appeal from final judgment. In some instances, `[t]he proverbial bell cannot be unrung

and an appeal after final judgment on the merits will not rectify the damage' suffered by

the appealing party." Muncie, 91 Ohio St.3d at 451, quoting Gibson-Myers & Assocs. v.

Pearce, 9ffi Dist. No. 19358, 1999 WL 980562, at *2 (Oct. 27, 1999), and citing Cuervo v.

Snell, lOtl' Dist. Nos. 99AP-1442, 99AP-1443, 99AP-1458, 2000 WL 1376510 ( Sept. 26,

2000).

In Wenzel, this Court recognized that "there exists an adequate remedy in the

ordinary course of law to challenge an adverse ruling on the issue, to wit: an appeal to the

court of appeals at the conclusion of the trial court proceedings." Wenzel, 68 Ohio st.3d at

66.

In fact, the Seventh District likewise concluded in Hubbard that a meaningful and

effective remedy (by way of an appeal following conviction) exists: "Appellant in this

case would not be denied a meaningful or effective appeal on the issue of double

jeopardy, along with any other trial issue that may develop, should he be required to wait

until conviction and sentence before an appeal is taken. Moreover, appellant may still be

acquitted at trial, rendering the issue moot." Anderson, 2012 Ohio 4390, at ¶ 56

(Vukovich, J., dissenting), quoting Hubbard, 135 Ohio App.3d at 521.

Now compare Muncie, in which this Court concluded "that an incompetent

defendant subject to an order compelling the involuntary administration of psychotropic

medication would have no meaningful or effective remedy by an appeal following final

judgment[,]" because the person would be forced to endure the side effects of the

26

medications during the pendency of the proceedings. And any relief would come after

those medications were ingested. See Muncie, 91 Ohio St.3d at 452.

Likewise in Upshaw, this Court reasoned that the defendant would be denied a

meaningful appeal because the "mistake is uncorrectable," because the defendant would

have already been subjected to a period of commitment and forced medication. See

Upshaw, 110 Ohio St.3d at 193.

More recently in Chambliss, this Court concluded that the pre-trial removal of a

criminal defendant's retained counsel of choice would not be afforded a meaningful and

effective appeal following conviction. See Chambliss, 128 Ohio St.3d at 511 (addressing

only the third prong under R.C. 2505.02(B)(4)(b) after the state conceded the first two

prongs). This Court's conclusion stemmed from the U.S. Supreme Court's decision "that

the erroneous denial of the right to retained counsel of choice constitutes structural error,

which would mean that the court of appeals would automatically reverse the conviction."

(Emphasis sic.) Chambliss, 128 Ohio St.3d at 511, citing United States v. Gonzalez-

Lopez, 548 U.S. 140, 148 (2006).

In concluding that the removal of retained counsel of choice satisfied the third

prong, this Court reasoned that the choice of counsel has a direct effect on the trial's

outcome; and thus, could not be cured with a second trial. See Chambliss, 128 Ohio St.3d

at 510-511, citing Gonzalez-Lopez, 548 U.S. at 148-150.

Unlike Chambliss and Gonzalez-Lopez, the trial court's denial of Defendant's

pre-trial motion to dismiss on double jeopardy and/or due process grounds does not have

a direct effect on the trial proceedings like the removal of retained counsel. And unlike

Muncie and Upshaw, the error (if any at all) could be correctable during appellate review.

27

Furthermore, there are several other substantial rights that appellate review has

historically given criminal defendants a meaningful and effective review after conviction:

• Fourth Amendment right against Unreasonable Searches and Seizures. See

State v. Lebron, 7th Dist. No. 99 CA 35, 1999 WL 1124762 (Nov. 22, 1999)(concluding that the denial of the defendant's motion to suppress is not a finalappealable order); State v. Jones, 11ffi Dist. No. 98-P-0116, 1999 WL33100648, at *3 (Jan. 29, 1999) (stating that motions to suppress "can beeffectively examined and appropriate relief granted when the case isterminated by way of trial or by pleading to the charges while reservingappellate review of the denied motion to suppress evidence.").

• Fifth Amendment right against Double Jeopardy. See Crago, at syllabus;

Wenzel, at syllabus.

• Sixth Amendment right to a Speedy Trial. See State v. Cook, 5"' Dist. No. 07

CA 39, 2007 Ohio 6446, ¶ 15 (concluding that "in the absence of a directappeal from a conviction, the denial of a defendant's motion to dismiss onspeedy trial grounds is not a final appealable order."); Lile, 42 Ohio App.2d at

90 (the denial of the defendant's motion to dismiss for failure to bring him totrial within 90 days was not a final appealable order).

These examples demonstrate that appellate review after conviction affords defendants a

meaningful and effective review of their alleged constitutional violations.

Thus, a direct appeal to the court of appeals after conviction remains an adequate

remedy in the ordinary course of law to challenge an adverse ruling on a defendant's

motion to dismiss (regardless of whether it is based upon due process or double

jeopardy), because it affords defendants a meaningful and effective review. See

Anderson, 2012 Ohio 4390, at ¶ 56 (Vukovich, J., dissenting).

Simply put, the proverbial bell has yet to ring.




28

v.) R.C.2505.02(B)(5).

Fifth, an appellate court can acquire jurisdiction over "[a]n order that determines

that an action may or may not be maintained as a class action." R.C. 2505.02(B)(5).

Here, Defendant did not appeal an order that determined a class action.




vi.) R.C. 2505.02(B)(6).

Sixth, an appellate court can acquire jurisdiction over "[a]n order determining the

constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the

124th general assembly, * * * or any changes made by Sub. S.B. 80 of the 125th general

assembly, * * * [.]" R.C. 2505.02(B)(6).

Here, Defendant did not appeal an order that determined the constitutionality of

any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general

assembly or Sub. S.B. 80 of the 125th general assembly.




vii.) R.C. 2505.02(B)(7).

Seventh, an appellate court can acquire jurisdiction over "[a]n order in an

appropriation proceeding that may be appealed pursuant to division (B)(3) of section

163.09 of the Revised Code." R.C. 2505.02(B)(7).

Here, Defendant did not appeal an order from an appropriation proceeding.

29




c.) The U.S. Supreme Court'sOpinion in Abney Did Not Mandate,as a Matter of Federal ConstitutionalLaw, that a State Provide a Mechanismfor an Interlocutory Appeal from the Denial of aMotion to Dismiss on Double Jeopardy Grounds.

Judge DeGenaro's concurring opinion reasoned that this Court's decisions in

Crago and Wenzel are contrary to the U.S. Supreme Court's interpretation of the issue at

hand. See id. at ¶ 34 (DeGenaro, J., concurring), quoting Abney, 431 U.S. at 659-662.

Judge DeGenaro stated that this Court was "superficially dismissive" of Abney,

because this Court "failed to address the entire constitutional analysis of Abney" and

ignored the holdings in Benton and McKane[.]" See id. at ¶ 38 (DeGenaro, J.,

concurring). Essentially, Judge DeGenaro's concurring opinion reasoned that a

defendant's right against double jeopardy would be violated if he is subjected to a second

trial for the same offense, regardless of the circumstances that led to the second trial.

Thus, Judge DeGenaro concluded that a defendant must be afforded appellate review

before the State can proceed to the second trial. See id. at ¶¶ 41-44 (DeGenaro, J.,

concurring).

First, the U.S. Supreme Court clearly interpreted a federal statute in Abney when

it held "that pretrial orders rejecting claims of former jeopardy, such as that presently

before us, constitute `final decisions' and thus satisfy the jurisdictional prerequisites of

[28 U.S.C.] 1291." Abney, 431 U.S. at 662. This Court recognized the same in Wenzel:

"Abney does not mandate, as a matter of federal constitutional law, that a state provide a

30

mechanism for an interlocutory appeal from the denial of a motion to dismiss on grounds

of double jeopardy." Wenzel, 68 Ohio St.3d at 67, fn. 1.

Thus, if a defendant is to be afforded such review, it must be done through the

Revised Code or a specific Rule of Procedure. And because Ohio law does not provide

for such a mechanism, an Ohio state defendant does not have a right to an interlocutory

appeal of the denial of a motion to dismiss for double jeopardy and/or due process

grounds.

Second, several states have likewise concluded that Abney did not mandate, as a

matter of federal law, that a state provide a defendant with an interlocutory appeal from

the denial of a motion to dismiss on grounds of double jeopardy. See, e.g., West v.

Commonwealth, 249 Va. 241, 243 (1995); State v. Apodaca, 123 N.M. 372, 374-376

(1997) (concluding that a defendant may appeal a trial court's denial of a motion to

dismiss on double jeopardy grounds because of the state constitution, not Abney); People

ex rel. Mosley v. Carey, 74 I11.2d 527, 541 (1979), superseded by rule as stated in, In re

Olivia C., 371 I11.App.3d 473, 476 (4 th Dist. 2007) (rule of procedure allows a defendant

to appeal a trial court's denial of a motion to dismiss on double jeopardy grounds); State

v. Nemes, 963 A.2d 847, 847-848 (N.J. Super. Ct. App. Div. 2008) (concluding that

Abney was not binding on the states); Paul v. People, 105 P.3d 628, 632-633 (Colo.

2005) (concluding that a defendant does not have an appeal of right from trial court's

denial of a motion to dismiss on double jeopardy grounds, but review may be sought

through the court's adopted rules of procedure); State v. Murphy, 537 N.W.2d 492, 494-

495 (Minn. Ct. App. 1995) (concluding that Abney does not entitle a defendant to an

31

appeal of right from trial court's denial of a motion to dismiss on double jeopardy

grounds, but recognizing that a state rule of procedure allows for discretionary appeals).

Thus, like Wenzel, several states have concluded that the U.S. Supreme Court's

decision in Abney is not binding on the states because it addressed a specific federal

statute that allowed for such review. Accordingly, to obtain such review in Ohio, it must

be authorized either through the Revised Code or the applicable Rules of Procedure.

Third, Judge DeGenaro's reliance on U.S. Supreme Court cases is misplaced,

because neither of the cases she relied upon specifically addressed the issue of whether a

state defendant has a right to appeal the trial court's denial of a pre-trial motion to dismiss

on double jeopardy and/or due process grounds before his second trial. See Benton v.

Maryland, 395 U.S. 784 (1969) (holding that the Fifth Amendment's prohibition against

double jeopardy was applicable to the states through the Fourteenth Amendment);

McKane v. Durston, 153 U.S. 684 (1894) (addressing a state offender's right to bail

during the appellate process after conviction).

Furthermore, the Seventh District's reliance on the Sixth Circuit's decision in

Harpster v. Ohio was likewise misplaced, because the Sixth Circuit specifically

recognized that "under Ohio law, `the overruling of a motion to dismiss on the grounds of

double jeopardy is not a final appealable order."' (Emphasis sic.) Harpster v. Ohio, 128

F.3d 322, 326 (6t1i Cir., 1997), quoting Crago, 53 Ohio St. 3d at 244. Thus, the Sixth

Circuit's opinion in Harpster does not lend any support to Defendant's argument.

Here, it must remain that "[t]he overruling of a motion to dismiss on the ground of

double jeopardy is not a final appealable order." Crago, at syllabus. And Defendant's due

32

process argument is equally applicable to the double jeopardy analysis. See Anderson,

2012 Ohio 4390, at ¶¶ 66-67 (Vukovich, J., dissenting).

The Seventh District's prevailing opinion did nothing more than create an

exception to this Court's general rule that prohibits a criminal defendant from appealling

a denial of a motion to dismiss where there are multiple trials. See Anderson, 2012 Ohio

4390, at ¶ 28 ("In this case, appellant has already subject to preparing for five trials over

a seven-year period. * * * We believe that fundamental fairness and constitutional

protections provide appellant a right to appeal at this time the trial court's ruling on his

motion to dismiss/discharge.").

The Seventh District opinion clearly took into account the number of trials that

Defendant faced before he filed his motion to dismiss. As Judge Vukovich pointed out,

"[a]ppealability should not be based upon the number of prior cases and/or what type of

events resulted in mistrials. Such factors may be relevant to the eventual merit

determination, but they do not govern appealability." Anderson, 2012 Ohio 4390, at ¶ 52

(Vukovich, J., dissenting).

Here, there is no dispute that Defendant had not been placed in jeopardy by the

second hung jury, because it is well established that the Double Jeopardy Clause does not

bar a "retrial where there is a`manifest necessity' for declaring a mistrial." State v.

Roper, 9t1i Dist. No. 20836, 2002 Ohio 7321, ¶ 73, citing United States v. Perez, 22 U.S.

579, 580 (1824). And a "hung jury remains the prototypical example" of a manifest

necessity. Roper, supra at ¶ 73, quoting Oregon v. Kennedy, 456 U.S. 667, 672 (1982),

and citing Downum v. United States, 372 U.S. 734, 736 (1963); accord Arizona v.

Washington, 434 U.S. 497, 509 (1978).

33

Finally, Chief Justice John Roberts recently reminded us that "[t]he Double

Jeopardy Clause protects against being tried twice for the same offense. The Clause does

not, however, bar a second trial if the first ended in a mistrial." (Emphasis added.)

Blueford v. Arkansas, 132 S.Ct. 2044, 2048 (2012).

34

Conclusion

It remains "that the proper legal remedy is to raise any double jeopardy

contentions by a pretrial motion to dismiss and, if the motion is denied, to file a direct

appeal from the subsequent conviction." (Emphasis sic.) Anderson, 2012 Ohio 4390, at ¶

47 (Vukovich, J., dissenting), citing State ex rel. White, 80 Ohio St.3d at 338. And this

Court's "rationale behind Crago is just as applicable to his due process argument as it is

to his double jeopardy argument since both arguments revolve around the same principles

of general fairness" Anderson, 2012 Ohio 4390, at ¶ 65 (Vukovich, J., dissenting). Thus,

"there is no reason to treat the labels for the motion differently for purposes of

appealability." Anderson, 2012 Ohio 4390, at ¶ 66 (Vukovich, J., dissenting).

Therefore, this Honorable Court must Reverse the Seventh District's decision and

conclude that the denial of a pre-trial motion to dismiss on Double Jeopardy and/or Due

Process grounds is not a final appealable order pursuant to R.C. 2505.02.

Respectfully Submitted,

PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR BY:

1VI: RIV , 082063SECUTOR

of Record

Office of the Mahoning County Prosecutor21 W. Boardman St., 6th FloorYoungstown, OH 44503-1426PH: (330) 740-2330FX: (330) 740-2008pgainskmahoningcountyoh. govrrivera(a^mahoningcountyoh. govCounsel for Appellant-State of Ohio

35

APPENDIX - A

Notice of Appeal to the Supreme Court of OhioOctober 29, 2012

BEFORE THE SUPREME COURT OF OHIO

STATE OF OHIO CASE NO.: ^ .^8 04

PLAINTIFF-APPELLANT

-vs-

CHRISTOPHER ANDERSON

ON APPEAL FROM CASE NO. 11 MA 43BEFORE THE COURT OF APPEALS FORTHE SEVENTH APPELLATE DISTRICT

DEFENDANT-APPELLEE

APPELLANT-STATE OF OHIO'S NOTICE OF APPEAL

PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR

RALPH M. RIVERA, 0082063ASSISTANT PROSECUTORCounsel of Record

OFFICE OF THE MAHONING COUNTYPROSECUTOR21 W. BOARDMAN ST., 6TH FL.YOUNGSTOWN, OH 44503PH: (330) 740-2330FX: (330) 740-2008n ¢ains(a-),mahoningcountyoh. govrrivera0,mahonin ĉ ountVoh.gov

COUNSEL FOR PLAINTIFF-APPELLANT

JOHN B. JUHASZ, 0023777

7081 WEST BLVD., SUITE 4YOUNGSTOWN, OH 44512PH: (330) 758-7700FX: (330) 758-7757jbiiurisdocAyghoo. com

COUNSEL FOR DEFENDANT-APPELLEE

^0CT 2 9 2012

'.;^ (A)URlKbA .;UURI JF OHIO

Notice of Appeal of Appellant-State of Ohio

Appellant-State of Ohio hereby gives notice of appeal to the Supreme Court of

----____Ohio from the judgment of the Mahoning County Court of Appeals, Seventh Appellate

District, entered in State of Ohio v. Christopher Anderson, Case No. 11 MA 43, on

September 25, 2012, in which the Seventh District, sitting en bane, concluded (2-2) that

the trial court's denial of Defendant's motion to dismiss the indictment based upon his

right to Due Process and the prohibition against Double Jeopardy was a fmal appealable

order pursuant to R.C. 2505.02. See S.Ct.Prac.R. 2.2(A)(6).

Defendant's notice of appeal was filed in the Seventh District on March 17, 2011.

The State filed a motion to dismiss Defendant's appeal and argued that the trial court's

denial of his motion to dismiss was not a final appealable order pursuant to R.C. 2505.02.

The Seventh District (2-1) denied the State's motion on June 10, 2011.

The State filed an Application for En Banc Consideration and Reconsideration on

June 20, 2011. The State's Application for Reconsideration was denied on October 4,

2011.

The State's Application for En Banc Consideration was granted on December 13,

2011.

On September 25, 2012, sitting en banc, a majority of the judges in the Seventh

District were unable to concur on whether or not the trial court's denial of Defendant's

motion to dismiss was a final appealable order; therefore, the original panel's decision in

which the Seventh District denied the State's motion to dismiss Defendant's appeal

remained. State v. Anderson, 7th Dist. No. 11 MA 43, 2012 Ohio 4390.

2

This case raises a substantial constitutional question and is one of great public and

general interest.

Respectfully Submitted,

PAUL J. GAINS, 0020323MAHONING COUNTY PROSECUTOR BY:

RALP RIVE 63SISTANT PROSECUTOR

Counsel of Record

Office of the Mahoning County Prosecutor21 W. Boardman St., 6th Fl.Youngstown, OH 44503-1426PH: (330) 740-2330FX: (330) 740-2008p ag insAmahonin cg ountyoh.govrriveraa mahonin cg ountyoh. govCounsel for Appellant-State of Ohio

Certificate of Service

I certify that a copy of the State of Ohio's Notice of Appeal was sent by ordinaryU.S. mail to the following parties on October 26, 2012:

John B. Juhasz, Esq.7081 West Blvd., Suite 4Youngstown, OH 44512

Timothy Young, Esq.Ohio State Public DefenderOffice of the Ohio Public Defender250 E. Broad Street, Suite 1400Columbus, OH 43215

So Certified,

(Ralph M. , 20Couri ^or Appe ant-State of Ohio

3

APPENDIX - B

Judgment Entry (En Banc Decision, 2-2)Seventh District Court of Appeals

September 25, 2012

STATE OF OHIO, MAHONING COU

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO,

PLAINTIFF-APPELLEE,

V.

CHRISTOPHER L. ANDERSON,

SEP 2 5.2012

CASE NO. 11-MA-43

OPINIONS UPONEN BANC

CONSIDERATION

DEFENDANT-APPELLANT.

CHARACTER OF PROCEEDINGS:

APPEARANCES:For Plaintiff-Appellee

For Defendant-Appellant

JUDGES:

Hon. Gene DonofrioHon. Joseph J. VukovichHon. Cheryl L. WaiteHon. Mary DeGenaro

Criminal Appeal from Court of CommonPleas of Mahoning County, OhioCase No. 02CR854

In that a majority ofunable to concur, theoriginal panel shall26(A)(2)(d)

the judges aredecision of theremain. App.R.

Paul GainsProsecutorRalph RiveraAssistant Prosecutor21 West Boardman St., 6th FloorYoungstown, Ohio 44503

Attorney John Juhasz7081 West Boulevard, Suite 4Youngstown, Ohio 44512-4362

Dated: September 25, 2012

-1-

DONOFRIO, J.

{11} Defendant-appellant, Christopher Anderson, appeals from a Mahoning

County Common Pleas Court judgment denying his Motion to Dismiss Indictment and

for Discharge from the scheduled trial. Plaintiff-appellee, the State of Ohio, filed a

motion to dismiss this appeal alleging that the trial court's denial of appellant's motion

for discharge is not a final, appealable order. This court overruled the state's motion,

finding that in this particular situation where there have been multiple mistrials, the

order appealed is a final, appealable order as defined by R.C. 2505.02. The state

next requested that we sit en banc to hear the finality issue, arguing that our decision

was in conflict with one of our prior decisions. We granted the state's request and

held an en banc hearing to determine whether the denial of appellant's motion for

discharge was immediately appealable.

{12} We now proceed with a determination solely as to the appealability of

the trial court's judgment overruling appellant's motion to dismiss/discharge.

{13} Appellant has had five trials thus far.

{14} During the first trial, the trial court excluded certain other acts evidence,

which was then brought up by a state's witness. The trial court declared a mistrial

finding that no corrective instruction to the jury could overcome the weight of the

improper comment by the state's witness.

{¶5} During the second trial, the court allowed the other acts evidence and

also allowed evidence of appellant's probation violations. A jury found appellant

guilty in November 2003. On appeal, this court reversed the murder conviction

finding that the trial court erred in admitting thi.s evidence. State v. Anderson, 7th

Dist. No. 03-MA-252, 2006-Ohio-4618.

{16} Appellant's third trial was held in December 2008. This trial resulted in

a hung jury.

{17} Appellant's fourth trial began in April 2010. However, one of his

defense attorneys fell asleep during voir dire. Consequently, the court declared a

mistrial.

-2-

{¶8} Appellant's fifth trial was held in August 2010. For the second time, the

trial resulted in a hung jury.

{19} The trial court scheduled appellant for what would be his sixth trial.

Appellant then filed his Motion to Dismiss Indictment and for Discharge. Appellant

argued that to make him stand trial for a sixth time violated his due process rights

and his protection from double jeopardy. The trial court overruled appellant's motion

finding that double jeopardy does not bar a retrial for the same offense after reversal

or mistrial. Appellant filed a timely appeal from this decision.

{110} The state now alleges our decision that the order appealed from is a

final, appealable order is in conflict with the Ohio Supreme Court case State v.

Crago, 53 Ohio St.3d 243, 559 N.E.2d 1352 (1990) and our application of Crago's

holding in State v. Hubbard, 135 Ohio App.3d 518, 734 N.E.2d 874 (7th Dist. 1999).

{111} In Crago, 53 Ohio St.3d at the syllabus, the Court held: "The overruling

of a motion to dismiss on the ground of double jeopardy is not a final appealable

order." In so holding, the court reasoned: "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." Id. at 244.

{112} In Hubbard, we relied on Crago in holding that the overruling of a

motion to dismiss on Ihe grounds of double jeopardy is not an appealable order

subject to immediate review. Hubbard, 135 Ohio App.3d at 522.

{113} The present case is distinguishable from Crago and Hubbard. Both

Crago and Hubbard dealt solely with the issue of double jeopardy and did not

address a due process argument. Appellant, however, based his motion to

dismiss/discharge on two separate arguments: (1) a violation of double jeopardy

because of the harassment associated with multiple prosecutions; and (2) a violation

of due process because the trial process was no longer fair.

{114} Furthermore, the facts here are distinguishable. In Crago and Hubbard,

the defendants each had one trial which resulted in a mistrial. Before their second

trials, they each filed a motion to dismiss based on double jeopardy. In the present

-3-

case however, appellant has had two trials that resulted in hung juries, one trial

ending in a conviction that we reversed on appeal, one mistrial chargeable to the

state, and one mistrial chargeable to the defense.

{115} Had appellant raised only a double jeopardy argument in support of his

motion to dismiss/discharge and had he been subject to only one trial thus far, we

would agree that Crago and Hubbard control here. But appellant's due process

argument coupled with the unique facts of this case compel us to reach a different

conclusion.

{116} R.C. 2505.02(B) defines a final, appealable order:

{117} "(B) An order is a final order that may be reviewed, affirmed, modified,

or reversed, with or without retrial, when it is one of the following:

{118} "(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{119} "(2) An order that affects asubstantial right made in a special

-proceeding or upon a summary application in an action after judgment;

{¶20} "(3) An order that vacates or sets aside a judgment or grants a new

trial;

{¶21} "(4) An order that grants or denies a provisional remedy and to which

both of the following apply:

{122} "(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the appealing

party with respect to the provisional remedy.

{123} "(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims,

and parties in the action."

{124} R.C. 2505.02(A)(3) defines a "provisional remedy" as a "proceeding

ancillary to an action, including, but not limited to, a proceeding for a preliminary

injunction, attachment, discove^,r of privileged matter, or sLippression of evidence."

-4-

(Emphasis added.) An order denying a motion to dismiss/discharge would fall into

the category of provisional remedies.

{125} Furthermore, in this case, appellant would clearly be denied a

meaningful, effective appeal on the issue of due process if he is required to wait until

conviction before appealing. And-if _ appellant is denied an appeal now, he will be

prevented from obtaining a judgment in his favor with respect to his motion to

dismiss/discharge. Unlike other-appealable issues that arise prior to trial and during

trial, such as evidentiary rulings, the violation here occurs if appellant is required to

stand trial. The trial itself is the very thing appellant claims that due process prohibits

in this case.{126} The Due Process Clause of the United States Constitution provides:

"No State shall make or enforce any law which shall abridge the privileges and

immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws."

{127} Article I, Section 16 of the Ohio Constitution, states that every person

"shall have remedy by due course of law and shall have justice administered without

denial or delay." (Emphasis added.)

{128} In this case, appellant has already been subject to preparing for five

trials over a seven-year period. Should he proceed to a sixth trial, his entire trial

process will have taken close to nine years. We believe that fundamental fairness

and constitutional protections provide appellant a right to appeal at this time the trial

court's ruling on his motion to dismiss/discharge.

{129} We note that our ruling herein applies strictly to the appealability issue

as we have not yet reached the merits of this case.

{130} In that a majority of the judges of the appellate district are unable

Documents

SUPREME before the supreme court of ohio state of ohio-vs-plaintiff-appellant christopher anderson defendant-appellee case no.: 2012-1834 on appeal from case no. 11 ma 43 before the