[Cite as State v. Baker, 2019-Ohio-2722.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                            NAHDIA S. BAKER,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 MA 0027


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2013 CR 380 (E)

                                          BEFORE:
                   Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee

 Atty. Walter T. Madison, The Malone Building, Suite 201, 209 S. Main Street, Akron,
 Ohio 44308, for Defendant-Appellant.

                                            Dated: June 28, 2019


 WAITE, P.J.
                                                                                          –2–



       {¶1}   Appellant Nahdia S. Baker appeals a February 9, 2018 Mahoning County

Court of Common Pleas judgment entry denying her motion to dismiss criminal charges

based on double jeopardy and issue preclusion arguments. Appellant argues that since

the jury acquitted her of all charges as the principal offender, the state cannot retry her

on the same charges under a complicity theory. For the reasons that follow, Appellant’s

arguments are without merit and the judgment of the trial court is affirmed.

                              Factual and Procedural History

       {¶1}   On May 21, 2015, Appellant was indicted on: one count of aggravated

arson, a felony of the second degree in violation of R.C. 2902.02(A)(2), (B)(1)(3); one

count of arson, a felony of the fourth degree in violation of R.C. 2909.03(A)(1),

(B)(1)(2)(b); two counts of discharging a firearm at or into a habitation, a felony of the

second degree in violation of R.C. 2923.161(A)(1), (C); three counts of attempted murder,

a felony of the first degree in violation of R.C. 2923.02(A) and R.C. 2903.02(A), (D); three

counts of felonious assault, a felony of the second degree in violation of R.C.

2903.11(A)(2), (D); and engaging in a pattern of corrupt activity, a felony of the first degree

in violation of R.C. 2923.32(A)(1), (B).

       {¶2}   The charges arose from crimes that occurred in furtherance of a drug

distribution organization. Appellant was indicted along with her codefendants: DeWaylyn

Colvin, Michael L. Austin, Jr., Hakeem D. Henderson, Vincent D. Moorer, and Melvin E.

Johnson. Colvin pleaded guilty and did not appeal his convictions. We upheld the

convictions of Austin, Henderson, Moorer, and Johnson. See State v. Austin, 7th Dist.

Mahoning No. 16 MA 0068, 2019-Ohio-1185; State v. Henderson, 2018-Ohio-5124, --

N.E.3d -- (7th Dist.); State v. Moorer, 7th Dist. Mahoning No. 17 MA 0054, 2019-Ohio-



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1090; State v. Johnson, 7th Dist. Mahoning No. 17 MA 0050, 2019-Ohio-1089.

Appellant’s trial was severed from her codefendants’ trials.

      {¶3}   On October 2, 2017, Appellant’s jury trial commenced. On October 12,

2017, Appellant was found not guilty of:       aggravated arson, complicity to commit

aggravated arson, arson, two counts of discharging a firearm at or into habitation, three

counts of attempted murder, two counts of complicity to commit attempted murder, three

counts of felonious assault, and two counts of complicity to commit felonious assault.

      {¶4}   The jury could not reach a verdict on: complicity to commit arson, two

counts of complicity to improperly discharge a firearm at or into a habitation, two counts

of discharging a firearm at or into habitation, complicity to commit attempted murder,

complicity to commit felonious assault, and engaging in a pattern of corrupt activity. The

trial court deemed a mistrial as to these charges.

      {¶5}   The state refiled the latter charges, on which the court had granted mistrial.

Appellant filed multiple motions to dismiss these charges. The trial court most recently

denied Appellant’s February 9, 2018 motion to dismiss. It is from this judgment entry that

Appellant timely appeals.

                               ASSIGNMENT OF ERROR


      THE TRIAL COURT ERRED WHEN IT DID NOT FIND THAT THE ISSUE

      PRECLUSION COMPONENT OF THE DOUBLE JEOPARDY CLAUSE

      BARRED A SECOND CONTEST OF AN ISSUE OF FACT OR LAW

      RAISED AND NECESSARILY RESOLVED BY A PRIOR JUDGMENT.




Case No. 18 MA 0027
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       {¶6}   Appellant contends that the state’s entire case rested on a complicity theory

based on her role as an aider and abetter rather than as a principal offender. Additionally,

Appellant argues that R.C. 2923.03 (complicity) does not distinguish between a complicit

defendant and a principal offender. Based on this, Appellant urges that the state’s refiling

of the charges at issue subjects her to double jeopardy.

       {¶7}   In response, the state argues that double jeopardy does not attach when

the jury determines that the defendant was not the principal offender, but does not reach

a verdict as to the defendant’s complicity. The state cites to State v. Christian, 184 Ohio

App.3d 1, 2009-Ohio-4811, 919 N.E.2d 271 (7th Dist.) and Christian v. Wellington, 739

F.3d 294 (6th Cir.2014) in support of its argument.

       {¶8}   “The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants

against multiple prosecutions for the same offense.” State v. Brewer, 121 Ohio St.3d 202,

2009-Ohio-593, 903 N.E.2d 284, ¶ 14. Appellate courts apply a de novo standard when

reviewing the denial of a motion to dismiss an indictment on the grounds of double

jeopardy. State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.

“The state is entitled to retry a defendant when a trial court has declared a mistrial after

the jury failed to reach a verdict.” Anderson, supra, at ¶ 32, citing Richardson v. United

States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); State v. Lovejoy, 79

Ohio St.3d 440, 445-446, 683 N.E.2d 1112 (1997).

       {¶9}   A defendant may be convicted under a complicity theory even where the

indictment charges the defendant as a principal offender and does not refer to complicity.




Case No. 18 MA 0027
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Christian, supra, at ¶ 31, citing State v. Herring, 94 Ohio St.3d 246, 251, 762 N.E.2d 940

(2002).

       {¶10} There are two lines of cases presented by the parties. In her brief, Appellant

cites to Ashe v. Swanson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). At oral

argument, Appellant focused on Bravo v. Fernandez, 137 S.Ct. 352, 196 L.Ed.2d 242

(2016) and Yeager v. U.S., 129 S.Ct. 2360, 557 U.S. 110, 174 L.Ed.2d 78 (2009). In

response, the state offers Christian, supra and Wellington, supra.

       {¶11} In Ashe, the appellant was charged for his role in a robbery committed

against several victims at a poker game.         The appellant was acquitted based on

insufficient evidence that he was one of the band of robbers. The state later filed robbery

charges against the appellant regarding a separate victim of the same robbery. The

appellant filed a motion to dismiss the charges. The Ashe Court explained that the

question was not whether the appellant could be tried for separate offenses related to the

incident. Id. at 446. At issue was a determination whether the appellant could be retried

for robbery against a second victim after the jury decided there was insufficient evidence

that he was involved in the robbery at all. The Ashe Court found that the issue of the

perpetrator’s identity had been determined in Appellant’s favor by the jury, thus the state

could not retry the same issue: the appellant’s alleged identity as one of the robbers of a

different victim in the same robbery. In other words, since the jury found that the appellant

was not involved in the robbery in the first victim’s case, he cannot later be found to be

involved in the very same robbery in the second victim’s case.

       {¶12} In Yeager, the appellant faced several insider trading charges. In one trial,

he was acquitted after the jury decided there was insufficient evidence presented to show




Case No. 18 MA 0027
                                                                                          –6–


that he possessed material, nonpublic information. The Yeager Court held that the

appellant could not be retried later on a different charge involving the same factual issue

of whether he possessed material, nonpublic information. Id. at 118-119. The Yeager

Court held that the appellant could not be recharged on the new insider trading charges

because the jury had already decided that he did not possess insider information. Id. at

120-121.

       {¶13} In Bravo, the United States Supreme Court held that issue preclusion bars

retrial only where an issue of law or fact was necessarily resolved in a prior judgment. Id.

at 357. The Court also clarified that “ ‘[t]he burden is on the defendant to demonstrate

that the issue whose relitigation he seeks to foreclose was actually decided’ by a prior

jury’s verdict of acquittal.” Id. at 359, citing Schiro v. Farley, 510 U.S. 222, 233, 114 S.Ct.

783, 127 L.Ed.2d 47 (1994). Bravo is factually distinguishable from the instant matter, as

it involved an appellant who was convicted of bribery but acquitted of two related offenses.

On appeal, the conviction was overturned. The issue facing the Supreme Court was

whether the government was barred from retrying the appellant on the vacated bribery

charge. The Court held that the government was not barred from retrying the appellant

for bribery, but could not introduce evidence of, or retry, the counts for which the appellant

was acquitted. Id. at 366.

       {¶14} Importantly, none of these cases address the issue of whether an appellant

can be retried under a complicity theory if a jury decides the appellant was not the

principal offender.   The issue is addressed, however, in cases raised by the state,

Christian and Wellington.




Case No. 18 MA 0027
                                                                                        –7–


       {¶15} In Christian, the appellant was acquitted of felonious assault. The jury was

unable to reach a verdict as to the offense of complicity to commit felonious assault.

Accordingly, we held that:


       Since complicity can be charged in terms of the principal offense and since

       the jury can find a defendant guilty on either theory if it was instructed as

       such, an acquittal as to being the principal offender but a hung jury on the

       complicity charge means that, if retrial is otherwise permissible, the state

       can proceed on the same indictment and reindictment is not necessary.


Id. at ¶ 33; R.C. 2923.03(F); Herring, supra, at 251.

       {¶16} In Wellington, the Sixth Circuit reviewed the facts of Christian under a

collateral estoppel theory. The Wellington Court rejected an interpretation of Ashe (relied

on by Appellant) that retrial under a complicity theory after an appellant is acquitted as a

principal offender requires relitigation of a factual issue already determined by a jury. The

Wellington Court emphasized that convicting an appellant of felonious assault involves

proof that the person caused or attempted to cause physical harm to another, whereas a

complicity conviction requires only proof that the appellant aided and abetted another

person who committed the offense. Thus, the jury could find in a new trial that while the

state failed to prove an element of an offense as the principal offender, the state did prove

all elements of complicity.

       {¶17} The Wellington Court distinguished Ashe because Ashe involved the state’s

attempt to retry the same elements of the case, but apply them to separate victims.




Case No. 18 MA 0027
                                                                                          –8–


Wellington and the instant case involve the issue of whether the state can retry Appellant

under a complicity theory when the jury found her not guilty as a principal offender.

       {¶18} The instant case is analogous to Christian and Wellington. The state is not

attempting to retry an element already decided by the jury. The state is not seeking to

prove that Appellant was the perpetrator of the offenses. Instead, it seeks to prove that

she aided or abetted another in committing these offenses. Appellant’s request for

dismissal of the charges relies on the fact that the jury decided Appellant was not the

perpetrator, however, this is irrelevant under a complicity theory. No issue preclusion is

involved in retrial of this matter. It is possible that Appellant aided or abetted the offender

without being present at the time the offenses were committed, and/or without taking

direct physical action in their commission. Importantly, the Christian/Wellington cases do

not conflict with Ashe and its progeny. Rather, the two lines of cases co-exist because

they involve separate issues.

       {¶19} Appellant has failed to file transcripts in this matter. Thus, we cannot

determine whether the trial court properly instructed the jury on the complicity charges

involved in Appellant’s mistrial. In the absence of a transcript, we presume there was

regularity of the proceedings in the trial court. State v. Dumas, 7th Dist. Mahoning No.

06 MA 36, 2008-Ohio-872, ¶ 14, citing State v. Johnson, 9th Dist. Lorain No.

02CA008193, 2003-Ohio-6814, ¶ 9.

       {¶20} As retrial under a complicity theory in this matter on the charges that result

in a mistrial does not involve relitigation of a fact or issue of law already determined by a

jury, Appellant’s sole assignment of error is without merit and is overruled.

                                         Conclusion




Case No. 18 MA 0027
                                                                                     –9–


      {¶21} Appellant argues that the state cannot try her under a complicity theory after

the jury found her not guilty as the principal offender.      For the reasons provided,

Appellant’s arguments are without merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, J., concurs.




Case No. 18 MA 0027
[Cite as State v. Baker, 2019-Ohio-2722.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
