         [Cite as State v. Clark, 2011-Ohio-6030.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-100693
                                                         TRIAL NO. B-0904410(B)
        Plaintiff-Appellee,                          :
                                                         O P I N I O N.
  vs.                                                :

JAYSHAWN CLARK,                                      :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 23, 2011




Joseph T. Deters, Hamilton County Prosecuting Attorney and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS




CUNNINGHAM, Judge.

       {¶1}    Following a jury trial, defendant-appellant Jayshawn Clark appeals the

convictions and sentences imposed for the attempted murder of Derryan Holland,

with an accompanying firearm specification, and for having a weapon under

disability. Clark and co-defendant Fonta Whipple had had a long-running feud with

Holland over Holland’s sexual relationship with Whipple’s girlfriend. Whipple had

accused Holland of shooting him in the hand.

       {¶2}    On June 22, 2009, Clark and Whipple had obtained a ride from their

friend Ashlee King. The two had told King that they wished to visit Whipple’s father. But

while passing the Bad Boyz Car Wash in Lockland, Ohio, Whipple and Clark spotted

Holland and ordered King to stop the car. The two left the vehicle, crouched behind a

dumpster, and observed the scene in the car wash. While Clark stood watch in the

doorway, Whipple entered and fired at least ten shots with a 9-mm handgun at Holland,

severely injuring him.

       {¶3}    Returning to the car, Whipple joked that he had emptied the entire clip.

He laughed that someone should call an ambulance. Clark retorted that someone should

call the coroner. Whipple then called one of Holland’s friends and taunted him to go and

sit with Holland at the hospital. After ordering King to return them to Hartwell, the two

fled and were finally located together in a Kentucky motel room.

       {¶4}    At the urging of her mother, King described Clark’s and Whipple’s role in

the shooting to Lockland police officers. King testified before the grand jury and was to

have been the state’s key witness at an April 2010 trial. But after the jury trial had

commenced, King refused to testify, claiming that she was afraid for her life.



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        {¶5}    The state called King to the stand and she asserted her privilege against

self-incrimination. The trial court ultimately granted her immunity and ordered her to

testify. Nonetheless King, fearing retaliation from Whipple and Clark, would not testify.

The trial court found her in contempt of court and ordered her jailed. The trial court,

concluding that it could not know when or if King would testify, granted the state’s motion

for a mistrial. King ultimately spent 59 days in jail.

        {¶6}    Following a hearing, the trial court approved a retrial on the grounds of

manifest necessity. At the second jury trial, begun in September 2010, King testified fully.

At the close of the trial, the court charged the jury on complicity under R.C. 2923.03. It

instructed the jury that if it found Clark had aided and abetted Whipple in the commission

of the attack on Holland, it could find Clark guilty as if he were the principal offender.

        {¶7}    The jury found Clark guilty of each charged offense and specification. The

trial court ultimately imposed an aggregate sentence of 18 years of imprisonment.

        {¶8}    On appeal, Clark first asserts that the trial court erred in declaring a

mistrial after King refused to testify and in then permitting a second trial to commence.

Clark argues that the trial court violated his constitutional right to be free from successive

prosecution for the same offense. See North Carolina v. Pearce (1969), 395 U.S. 711, 89

S.Ct. 2072.

        {¶9}    There is no doubt that jeopardy had attached as the first jury had been

empaneled and sworn before the court had declared a mistrial. See Crist v. Bretz (1978),

437 U.S. 28, 98 S.Ct. 2156. But retrial before a second jury was not barred by the Double

Jeopardy Clause if there was either: (1) a manifest necessity for ordering a mistrial; or (2) a

situation where the ends of public justice would be defeated without the order of mistrial.

See State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900, citing Arizona v.




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Washington (1978), 434 U.S. 497, 98 S.Ct. 824; see, also, State v. Douthard (June 29,

2001), 1st Dist. Nos. C-000354 and C-000355.

       {¶10} Since the trial court was “in the best position to determine whether the

situation in [the] courtroom warrant[ed] the declaration of a mistrial,” the determination

of whether to grant a mistrial was consigned to the discretion of the trial court. State v.

Glover, 35 Ohio St.3d. at 19, 517 N.E.2d 900; see, also, State v. Brown, 100 Ohio St.3d 51,

2003-Ohio-5059, 796 N.E.2d 506, ¶42. To abuse this discretion, the court must have

acted unreasonably, arbitrarily, or unconscionably. See State v. Adams (1980), 62 Ohio

St.2d 151, 157, 404 N.E.2d 144. If the court’s exercise of its discretion, however, exhibited

a sound reasoning process that supported its decision, this court will not disturb that

determination. See AAAA Enterprises, Inc. v. River Place Community Urban Redev.

Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.

       {¶11} Here, King had been cooperating with the prosecution until she refused to

testify at trial. The trial court had granted King immunity from prosecution. It then held

her in contempt of court and ordered her incarceration, but still she refused to testify.

       {¶12} Unlike the trial court in State v. Douthard, here, the court seriously

considered alternatives to declaring a mistrial, including employing King’s recorded police

statements or her grand jury testimony, or continuing the trial for a period of 30 days and

then recalling the jury. It entertained the arguments of counsel, including that of King’s

court-appointed attorney, as to the merits and drawbacks of each alternative and

thoroughly discussed each option with the parties.

       {¶13} The trial court concluded that King was the key prosecution witness and

that her absence because of threats of violence created the manifest necessity for a mistrial

and subsequent retrial of Clark. See, e.g., State v. Lanier, 7th Dist. No. 06 MA 94, 2007-




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                          OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-3172; United States v. Khait (S.D.N.Y. 1986), 643 F.Supp. 605. Since the trial court’s

decision was supported by a sound reasoning process, the first assignment is overruled.

        {¶14} In four interrelated assignments of error, Clark challenges the weight and

the sufficiency of the evidence adduced to support his convictions. Our review of the

entire record fails to persuade us that the jury, acting as the trier of fact, clearly lost its way

and created such a manifest miscarriage of justice that the convictions must be reversed

and a new trial ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,

678 N.E.2d 541.     The state adduced ample evidence that Clark had actively supported,

assisted, and cooperated with Whipple in shooting Holland. Clark and Whipple had been

together before and during the attack and had been captured together afterward. Clark

had crouched behind the dumpster with Whipple moments before the attack and had

stood in the doorway watching the assault. Clark had joked with Whipple afterward.

        {¶15} Since the weight to be given to the evidence in this case and the credibility

of the witnesses were for the trier of fact to determine, the jury was entitled to reject

Clark’s theory that he had merely accompanied Whipple to the car wash and had not

participated actively in the shooting. See R.C. 2923.03(A); see, also, State v. DeHass

(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The third

assignment of error is overruled.

        {¶16} The record reflects substantial, credible evidence from which the trier of

fact could have reasonably concluded that all elements of the charged crimes had been

proved beyond a reasonable doubt, including that Clark had participated actively in

attempting to murder Holland. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791,

842 N.E.2d 996, ¶36. The second assignment of error is overruled.

        {¶17} The trial court also properly denied Clark’s motions for judgments of

acquittal, as reasonable minds could have reached different conclusions as to whether




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each element of the crimes charged had been proved beyond a reasonable doubt. See

Crim.R. 29; see, also, State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184.

The fourth assignment of error is overruled.

       {¶18} Moreover, in light of our disposition of Clark’s second and fourth

assignments of error, we conclude that the trial court did not abuse its discretion by

refusing to grant a new trial or to modify the verdict on grounds that insufficient evidence

was presented at trial. Under Crim.R. 33, a motion for a new trial is directed to the sound

discretion of the trial court, and the court’s decision shall not be reversed on appeal absent

an abuse of discretion. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54,

paragraph one of the syllabus.       The relevant inquiry is the same as the inquiry for

sufficiency. See State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696,

¶89.   Having already found sufficient evidence supporting Clark’s convictions for

attempted murder and having a weapon under disability, we overrule the sixth

assignment of error.

       {¶19} Finally, Clark argues that the trial court erred in imposing an excessive

sentence. The trial court had imposed consecutive sentences for an 18-year aggregate

term of imprisonment: ten years for the attempted-murder offense, three years for the

firearm specification, and five years for the weapon-under-disability offense.           The

sentences imposed were not contrary to law. See State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, ¶14. They were within the statutory range specified for the

offenses under R.C. 2929.14. See State v. Boggs, 1st Dist. No. C-050946, 2006-Ohio-

5899, ¶6. In light of the seriousness of the offenses, and Clark’s prior criminal record,

including felony convictions for burglary and cocaine trafficking, we cannot say that the

trial court abused its discretion in imposing sentence. See State v. Kalish at ¶17. The fifth

assignment of error is overruled.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} Therefore, the trial court’s judgment is affirmed.

                                                                       Judgment affirmed.

SUNDERMANN, P.J., and HENDON, J., concur.

Please Note:
       The court has recorded its own entry on the date of the release of this opinion.




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