[Cite as State v. Jefferson, 2013-Ohio-5248.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99589



                                       STATE OF OHIO
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                                    DAVID JEFFERSON
                                                          DEFENDANT-APPELLEE




                                                JUDGMENT:
                                                 DISMISSED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-526072

        BEFORE: Boyle, P.J., E.A. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                           November 27, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Adam M. Chaloupka
        Gregory Mussman
        T. Allan Regas
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
MARY J. BOYLE, P.J.:

       {¶1} Plaintiff-appellant, state of Ohio, appeals from the trial court’s judgment

granting the motion to discharge filed by defendant-appellee, David Jefferson.      The state

argues that the trial court erred in granting Jefferson’s motion. We must first determine,

however, if the state can appeal the trial court’s judgment as a matter of right.   If not, we

have no jurisdiction to address the state’s appeal. In determining the answer to this

question, we must examine the facts and procedural history of the case.

       {¶2} On June 20, 2009, Jefferson shot and killed 21-year-old Trenton Austin in

an alley near East 33rd Street and Cedar Avenue in Cleveland, Ohio.         Three days later,

Jefferson turned himself into police, took responsibility for the killing, and claimed he

acted in self-defense.

       {¶3} On June 26, 2009, the Cuyahoga County Grand Jury indicted Jefferson on

one count of aggravated murder with one- and three-year firearm specifications.

Jefferson pleaded not guilty at his arraignment, numerous pretrials followed, and the

matter proceeded to trial.   The jury was unable to reach a verdict, however, and the trial

court declared a mistrial.   On July 25, 2011, a new trial commenced.

       {¶4} Over Jefferson’s objection, the trial court instructed the jury on the

inferior-degree offense of voluntary manslaughter.        The jury acquitted Jefferson of

murder, but found him guilty of voluntary manslaughter and the firearm specifications.

The trial court sentenced Jefferson to an aggregate of seven years in prison, four years for
voluntary manslaughter and three years for the firearm specification.

       {¶5} Jefferson appealed. This court sustained Jefferson’s third assignment of

error regarding the trial court charging the jury on the inferior-degree offense of voluntary

manslaughter.     State v. Jefferson, 8th Dist. Cuyahoga No. 97331, 2012-Ohio-2387,

discretionary appeal not allowed, 133 Ohio St.3d 1423, 2012-Ohio-4902, 976 N.E.2d

914, ¶ 32.       We explained that “an instruction on voluntary manslaughter and

self-defense is erroneous because the two legal theories are incompatible.” Id. at ¶ 26,

citing State v. Williamson, 8th Dist. Cuyahoga No. 95732, 2011-Ohio-4095. We further

noted that “[v]oluntary manslaughter requires that the defendant be under the influence of

sudden passion or a fit of rage, while self-defense requires the defendant to be in fear for

his own personal safety.”    Id., citing State v. Harris, 129 Ohio App.3d 527, 534-535,

718 N.E.2d 488 (10th Dist.1998). We found that:

       the record is devoid of any evidence that Jefferson acted out of sudden
       passion or rage. Quite the contrary, Jefferson maintained that he feared for
       his life because [the victim] shocked him with the stun gun. To
       underscore that he feared for his safety, Jefferson offered the testimony of
       retired police officer Jim Simone, who testified that an officer’s biggest fear
       when confronted with a stun gun is that the assailant will use the officer’s
       service revolver against him or her.

Id. at ¶ 27.   We reversed Jefferson’s conviction and remanded for a new trial. Id. at ¶

32.

       {¶6} Upon remand, Jefferson moved to dismiss his case, but later amended his

motion to a motion to discharge. After a hearing on Jefferson’s motion, the trial court

granted it and discharged the case.     The trial court found that because Jefferson was
acquitted of murder, and this court found that the jury should not have been instructed on

voluntary manslaughter, there were no pending charges to be tried.      The state appealed

as of matter of right from this judgment.

                                        Jurisdiction

       {¶7} Article IV, Section 3(B)(2), of the Ohio Constitution establishes that courts

of appeals “shall have such jurisdiction as may be provided by law to review and affirm,

modify, or reverse judgments or final orders of the courts of record inferior to the courts

of appeals within the district.”    (Emphasis added.)      The Ohio Supreme Court has

interpreted this constitutional provision to mean that “the state has no absolute right of

appeal in a criminal matter unless specifically granted such right by statute.” State v.

Fisher, 35 Ohio St.3d 22, 24, 517 N.E.2d 911 (1988).

       {¶8} Although R.C. 2505.03 generally provides that every final order or

judgment may be reviewed on appeal, R.C. 2945.67(A) specifically governs appeals by

the state in criminal proceedings. This statute provides in pertinent part:

       A prosecuting attorney * * * may appeal as a matter of right any decision of
       a trial court in a criminal case, * * * which decision grants [1.] a motion to
       dismiss all or any part of an indictment, complaint, or information, [2.] a
       motion to suppress evidence, or [3.] a motion for the return of seized
       property or [4.] grants post conviction relief * * *, and may appeal by
       leave of the court to which the appeal is taken any other decision, except the
       final verdict, of the trial court in a criminal case[.]

(Emphasis added.)

       {¶9} The state argues that this case is exactly on point with State v. Christian,

184 Ohio App.3d 1, 2009-Ohio-4811, 919 N.E.2d 271 (7th Dist.), discretionary appeal
not allowed, 124 Ohio St.3d 1492, 2010-Ohio-670, 922 N.E.2d 227. The state maintains

that this court should come to the same conclusion as the court in Christian, namely, that

“the granting of a motion to discharge upon remand [is] the functional equivalent of a

partial dismissal of the indictment,” and therefore the state can appeal as a matter of right.

 While we agree with the state that the Seventh District reached that conclusion, we find

the facts in Christian to be distinguishable from the facts in the present case.

       {¶10} In Christian, the defendant was charged with felonious assault. The trial

court instructed the jury on felonious assault and complicity to commit felonious assault.

The jury found Christian not guilty of felonious assault, but “unable to decide” on the

complicity count. Subsequently, the trial court in Christian discharged the case because

“there was nothing on paper reflecting any remaining charges.” Id. at ¶ 9.

       {¶11} The state appealed the trial court’s decision to discharge Christian’s case.

The state argued that “since there is no need to indict on complicity in order to instruct on

it, a hung jury on a complicity verdict and an acquittal on the principal verdict does not

mean that there is no remaining charging document.” Id.        at ¶ 19.

       {¶12} Christian moved to dismiss the appeal, arguing that the state could not

appeal the trial court’s decision under R.C. 2945.67(A) because the trial court discharged

his case due to the fact that he was acquitted of all indicted charges.

       {¶13} The Seventh District pointed out that

       The jurisdictional issue here is intertwined with * * * the merit issues.
       That is, the state urges that the hung complicity charges still existed and
       appellee should thus have been retried on the original indictment. If we
       agree, then the trial court’s discharge of the defendant constituted the
       dismissal of part of the indictment, allowing the state to appeal as a matter
       of right. If the complicity charges did not still exist under the original
       indictment, then the court’s discharge of the defendant was not the
       dismissal of an indictment and could not be appealed without leave of court.
        Thus, we proceed to address the state’s merit arguments.

Id. at ¶ 16.

        {¶14} The Seventh District ultimately agreed with the state and reversed the trial
court’s decision to discharge Christian’s case, holding that “[b]ecause the [trial] court
instructed on complicity and because the jury hung on complicity, the indictment still
exists and still states charges of complicity.” Id. at ¶ 33. The court reasoned 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 verdict means that, if retrial is otherwise permissible, the
       state can proceed on the same indictment and reindictment is not necessary.
        Because the court instructed on complicity and because the jury hung on
       complicity, the indictment still exists and still states charges of complicity.

(Citations omitted.) Id. at ¶ 33.

       {¶15} Thus, the Seventh District concluded that

       the trial court’s decision to discharge the defendant constituted the dismissal
       of part of the indictment, which the state can appeal as of right. Since
       complicity is inherent in every indictment and since this jury was instructed
       on but then deadlocked on complicity, a charging document did still exist.

Id. at ¶ 3.    The Seventh District reversed the judgment of the trial court and “remanded

for further proceedings on complicity to commit felonious assault.” Id.

       {¶16} We agree with the Seventh District that the jurisdictional issue is

inextricably “intertwined with * * * the merit issues.” Id. at ¶ 16.     In the present case,

however, Jefferson was found not guilty of murder and guilty of voluntary manslaughter;

the jury was not hung on the voluntary manslaughter charge. Subsequently, on appeal,
this court held that the trial court should not have charged the jury on voluntary

manslaughter because “the record [was] devoid of any evidence that Jefferson acted out

of sudden passion or rage.”     Jefferson, 8th Dist. Cuyahoga No. 97331, 2012-Ohio-2387,

discretionary appeal not allowed, 133 Ohio St.3d 1423, 2012-Ohio-4902, 976 N.E.2d 91,

 at ¶ 7.   Not only was there no evidence that Jefferson “acted out of sudden passion or

rage,” but Jefferson argued — and testified — that he acted in self-defense.             We

explained that the two legal theories, self-defense and acting out of “sudden passion or

rage,” are incompatible. Id. at ¶ 26.        Thus, upon remand, there were no remaining

charges against Jefferson.    Accordingly, the trial court’s discharge in this case was not

the functional equivalent of granting a motion to dismiss the indictment or partial

indictment.   Therefore, the state could not appeal as a matter of right.

       {¶17} In sum, because the trial court’s granting of Jefferson motion to discharge is

not one of the matters a state may appeal as of a matter of right, and the state did not seek

leave to appeal, this court does not have jurisdiction to address the state’s appeal.    See

State ex rel. Steffen v. Judges of the Court of Appeals for the First Appellate Dist., 126

Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906 (“[B]ecause the state’s appeal in [the]

underlying criminal case did not constitute an appeal as a matter of right under R.C.

2945.67(A) and did not comply with the requirements of App.R. 5 so as to qualify as a

proper appeal by leave of court, the court of appeals judges patently and unambiguously

lack jurisdiction over the state’s appeal[.]”).

       {¶18} Accordingly, the state’s appeal is dismissed.
      It is ordered that appellee recover of appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
