[Cite as State v. Dicks, 2012-Ohio-2621.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. CT2011-0059
DAVID T. DICKS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2011-0112


JUDGMENT:                                      Dismissed


DATE OF JUDGMENT ENTRY:                         June 11, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RONALD L. WELCH                                FREDERICK A. SEALOVER
Assistant Prosecuting Attorney                 45 N. Fourth Street
27 North Fifth Street                          P.O. Box 2910
Zanesville, Ohio 43701                         Zanesville, Ohio 43702-2910
Muskingum County, Case No. CT2011-0059                                                   2

Hoffman, J.


         {¶1}   Defendant-appellant David T. Dicks appeals the October 4, 2011

Judgment Entry entered by the Muskingum County Court of Common Pleas which

granted the Plaintiff-appellee state of Ohio’s Motion to Amend the Indictment.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant was indicted on 20 counts of gross sexual imposition, violations

of R.C. 2907.05(A)(4), all involving the same victim. The case proceeded to trial by jury.

         {¶3}   At the close of the state’s case, Appellant moved for acquittal pursuant to

Crim. R. 29, arguing although the evidence may have been sufficient to support a

certain nature of the charged offense, it was not sufficient to support the nature of the

offense as charged in the Indictment.

         {¶4}   In response, the state moved to amend the Indictment to include

additional language which comported to the evidence adduced at trial and denied

Appellant’s motion for acquittal.       Appellant then requested the jury be discharged

pursuant to Crim. R. 7D. Via Judgment Entry filed October 4, 2011, that request was

granted and the jury was ordered dismissed without prejudice with a new trial to be

scheduled.

         {¶5}   It is from that judgment entry Appellant prosecutes this appeal, assigning

as error:

         {¶6}   “I. THE TRIAL COURT ERRED IN PERMITTING THE STATE OF OHIO

TO AMEND ITS INDICTMENT AND DENYING THE DEFENDANT’S MOTION FOR




1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Muskingum County, Case No. CT2011-0059                                              3


ACQUITTAL FOLLOWING THE CONCLUSION OF THE STATE OF OHIO’S CASE IN

CHIEF AT TRIAL.”

      {¶7}   Because Appellant is awaiting a new trial and has yet to be found guilty

and/or sentenced, we find no final appealable order exists under R.C. 2505.02. As

such, this Court is without jurisdiction and orders Appellant’s appeal dismissed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE
Muskingum County, Case No. CT2011-0059                                          4


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
DAVID T. DICKS                            :
                                          :
       Defendant-Appellant                :        Case No. CT2011-0059


       For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs assessed to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
