[Cite as State ex rel. Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405,
2010-Ohio-2430.]




 THE STATE EX REL. STEFFEN v. JUDGES OF THE COURT OF APPEALS FOR THE
                             FIRST APPELLATE DISTRICT.
     [Cite as State ex rel. Steffen v. Court of Appeals, First Appellate Dist.,
                        126 Ohio St.3d 405, 2010-Ohio-2430.]
Prohibition — Appellate jurisdiction — R.C. 2945.67(A) — Court of appeals
        lacks jurisdiction to hear state’s appeal because state did not seek leave to
        appeal — Writ granted.
      (No. 2009-2166 — Submitted April 20, 2010 — Decided June 3, 2010.)
                                     IN PROHIBITION.
                                  __________________
        Per Curiam.
        {¶ 1} This is an action for a writ of prohibition to prevent court of
appeals judges from proceeding in the state’s appeal from the decision of a trial
court granting a motion for a new trial in a capital case. Because the court of
appeals patently and unambiguously lacks jurisdiction to proceed in the appeal
because it was not filed pursuant to R.C. 2945.67(A) and App.R. 5(C), we grant
the requested extraordinary relief.
                                           Facts
        {¶ 2} In 1982, relator, David J. Steffen, was indicted for aggravated
murder with capital specifications, rape, and aggravated burglary.                       The
aggravated-murder charge was based on the intentional killing of Karen Range
while committing or attempting to commit rape. After a jury found him guilty of
all counts and recommended the death penalty, the trial court sentenced Steffen to
death for the aggravated-murder conviction and to consecutive prison terms of
seven to 25 years on his remaining convictions for rape and aggravated burglary.
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The court of appeals affirmed the convictions and sentence. State v. Steffen (Dec.
11, 1985), Hamilton App. No. C-830445, 1985 WL 4301, *18.
       {¶ 3} This court affirmed the judgment of the court of appeals. State v.
Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383. We emphasized
that Steffen’s denial of the rape charge indicated lack of cooperation with law
enforcement and that the evidence “leads to a compelling conclusion that a rape
had occurred and that [Steffen] was the perpetrator.” Id. at 118, fn. 11.
       {¶ 4} Steffen subsequently filed a petition in a federal district court for a
writ of habeas corpus. During the pendency of the federal case, the Bureau of
Criminal Identification and Investigation (“BCI”) conducted DNA testing of the
vaginal-swab specimen taken during the victim’s autopsy. DNA testing had not
been available when Steffen was prosecuted. The test results eliminated him as
the depositor of the semen. The federal district court then ordered the case
returned to the common pleas court so that Steffen could exhaust his available
state remedy for consideration of the DNA test results.
       {¶ 5} In August 2006, Steffen filed a motion for leave to file a delayed
motion for a new trial pursuant to Crim.R. 33 based on the newly discovered
DNA test results. The state filed a response joining in Steffen’s request for leave,
and after the common pleas court granted him permission, Steffen filed his
delayed motion for a new trial. Additional DNA testing by an outside laboratory
confirmed BCI’s results. The DNA on the victim’s swab specimen was later
matched to the DNA of a former Hamilton County Coroner’s Office employee,
who confessed to abusing the victim’s corpse between the time of its arrival at the
county morgue and the autopsy.
       {¶ 6} On February 17, 2009, the court of common pleas reduced
Steffen’s rape conviction to attempted rape at the state’s request. The court also
denied Steffen’s motion for a new guilt-phase trial, but granted his request for a
new penalty-phase trial. The court stated that it was granting the new penalty-




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phase trial “[b]ecause the jury, the trial court, and the appellate courts all based
their recommendations and conclusions as to the death penalty on a finding that
[Steffen] raped the victim and was lying when he said he did not.”
          {¶ 7} The next day, the state filed a notice of appeal from “the February
17, 2009 decision of the trial court in which the trial court granted Steffen a New
Trial as to the penalty phase of his capital murder case.” The state’s notice of
appeal was not accompanied by a motion for leave to appeal the trial court’s
ruling.
          {¶ 8} On March 16, 2009, the common pleas court filed a journal entry,
which specified as follows:
          {¶ 9} “For reasons set forth in [the court’s] February 17, 2009 decision,
the amended motion for a new trial is DENIED as to the guilt phase proceedings,
the verdict for Count Two of the indictment is MODIFIED from rape to attempted
rape, and the amended motion for a new trial is GRANTED as to the penalty
phase of the proceedings.
          {¶ 10} “It is therefore ORDERED that Defendant David Steffen’s
conviction as to Count Two of the Indictment be reduced from rape to attempted
rape [R.C. 2921.03 as applied to R.C. 2907.02], a felony of the second degree;
and it is further
          {¶ 11} “ORDERED that the previously imposed sentence of death as to
Count One of the Indictment, Aggravated Murder with Capital Specifications, and
the previously imposed indefinite terms of imprisonment for Count Two, Rape be
VACATED, and it is further
          {¶ 12} “ORDERED that this case be scheduled for a new sentencing
hearing.” (Capitalization sic.)
          {¶ 13} Steffen filed a notice of cross-appeal from the portion of the
decision denying his request for a new jury trial on the issue of guilt. Later, he
filed a motion in the Court of Appeals for Hamilton County to dismiss the state’s



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appeal for lack of jurisdiction because the state failed to file a motion for leave to
appeal the trial court’s ruling concurrently with its notice of appeal. On June 5,
2009, the state filed both a memorandum opposing the motion to dismiss and a
delayed motion for leave to appeal. The court of appeals denied Steffen’s motion
to dismiss the state’s appeal because it “was taken as a matter of right under R.C.
2945.67(A).” The court also denied as moot the state’s motion for leave to
appeal. After the court of appeals denied Steffen’s application for reconsideration
of the decision denying his dismissal motion, the state filed its merit brief.
          {¶ 14} On December 1, 2009, Steffen filed this action for a writ of
prohibition to prevent respondents, the judges of the court of appeals, from
proceeding on the state’s appeal.      The judges filed a motion to dismiss the
complaint, and Steffen filed a memorandum in opposition.             We granted an
alternative writ and issued a schedule for the submission of evidence and briefs.
State ex rel. Steffen v. Court of Appeals, First Appellate Dist., 124 Ohio St.3d
1471, 2010-Ohio-354, 921 N.E.2d 244.
          {¶ 15} This cause is now before the court for our consideration of the
merits.
                                   Legal Analysis
                                 Prohibition Claim
          {¶ 16} To be entitled to the requested writ of prohibition, Steffen must
establish that (1) the court of appeals judges are about to exercise judicial power,
(2) the exercise of that power is unauthorized by law, and (3) denying the writ
will result in injury for which no other adequate remedy exists in the ordinary
course of law. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-
4986, 915 N.E.2d 633, ¶ 25. It is uncontroverted that the court of appeals judges
have exercised and are continuing to exercise judicial power in the underlying
criminal case by denying Steffen’s motion to dismiss the state’s appeal and by
proceeding in the appeal.




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                                 January Term, 2010




        {¶ 17} For the remaining requirements, “[i]f a lower court patently and
unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will
issue to prevent any future unauthorized exercise of jurisdiction and to correct the
results of prior jurisdictionally unauthorized actions.” State ex rel. Mayer v.
Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12.                    The
dispositive issue is thus whether the court of appeals judges patently and
unambiguously lack jurisdiction over the state’s pending appeal.
                   Patent and Unambiguous Lack of Jurisdiction
        {¶ 18} Section 3(B)(2), Article IV 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.)
We have 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 (1988), 35 Ohio St.3d 22, 24, 517 N.E.2d 911.
        {¶ 19} The state’s right to appeal in criminal cases is governed by R.C.
2945.67(A), which provides:
        {¶ 20} “A prosecuting attorney * * * may appeal as a matter of right any
decision of a trial court in a criminal case * * * which decision grants a motion to
dismiss all or any part of an indictment, complaint, or information, a motion to
suppress evidence, or a motion for the return of seized property or grants post
conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code,
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 * * *.”
        {¶ 21} As we recently observed, “[w]hile 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 and juvenile delinquency
proceedings. It provides that the state may appeal as of right an order that (1)



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grants a motion to dismiss all or any part of an indictment, complaint, or
information, (2) grants a motion to suppress evidence, (3) grants a motion for the
return of seized property, and (4) grants postconviction relief. It further provides
that with the exception of final verdicts, the state may appeal any other decision in
a criminal or juvenile delinquency proceeding by leave of the appellate court.”
(Emphasis sic.) In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d
629, ¶ 30.
       {¶ 22} The court of appeals judges ruled that the court has jurisdiction
over the state’s appeal because the appeal is a matter of right under R.C.
2945.67(A). The judges claim that the statute authorizes the state’s appeal as a
matter of right without requiring the state to request leave to appeal because the
decision being appealed included the trial court’s modification of Steffen’s rape
conviction to attempted rape, which the judges claim constitutes a dismissal of the
indicted rape charge.
       {¶ 23} We need not determine whether the trial court’s modification of
Steffen’s rape conviction to attempted rape constituted a dismissal in part of the
indictment, however, because the state did not appeal from that decision. In fact,
the state itself had requested the reduction of the rape conviction to attempted
rape that the court ordered.
       {¶ 24} Instead, as the plain language of the state’s February 18, 2009
notice of appeal establishes, the state appealed from the common pleas court’s
decision to grant Steffen a new penalty-phase trial in his capital murder case.
“Pursuant to R.C. 2505.02 and 2505.03(A), a trial court’s order granting the
defendant a new trial in a criminal case is a final appealable order which the state
may appeal by leave of court.” State v. Matthews (1998), 81 Ohio St.3d 375, 691
N.E.2d 1041, syllabus. In Matthews, we held that “the state may appeal from [an
order granting a defendant a new trial in a criminal case] only by leave of the
court to which the appeal is taken, pursuant to R.C. 2945.67(A).” Id. at 378.




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                                January Term, 2010




       {¶ 25} Notably, the primary case cited by the state in support of its claim
that the trial court’s decision to grant a new penalty-phase trial was appealable as
a matter of right involved the state’s appeal from the decisions claimed to be
dismissals of the indictment or the functional equivalent thereof. See State v.
Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, syllabus (state may
appeal as a matter of right from dismissal of an indictment regardless of whether
the dismissal is with or without prejudice). Similar cases are limited to the state’s
appeals from decisions that either dismiss an indictment or are the functional
equivalent of a dismissal of an indictment. See In re S.J., 106 Ohio St.3d 11,
2005-Ohio-3215, 829 N.E.2d 1207, ¶ 13 (trial judge’s sua sponte dismissal of
murder charge constituted final, appealable order subject to state’s appeal as a
matter of right because the dismissal was equivalent to granting a motion to
dismiss the indictment); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897
N.E.2d 629, syllabus (state has appeal as a matter of right from an order denying a
motion for mandatory bindover because it is the functional equivalent of a
dismissal of an indictment).
       {¶ 26} This precedent is distinguishable from the case at bar, where the
state is manifestly not appealing from the dismissal of an indictment or its
functional equivalent. And we are forbidden to add a nonexistent provision to the
plain language of R.C. 2945.67(A). See State ex rel. Lorain v. Stewart, 119 Ohio
St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 36 (court cannot add language to
statute); State v. Hughes (1999), 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (“In
construing a statute, we may not add or delete words”).
       {¶ 27} Therefore, the state could not appeal the decision of the common
pleas court granting Steffen a new penalty-phase trial as a matter of right. It was
required to timely seek leave to appeal. “A motion for leave to appeal by the state
in a criminal case shall be governed by the procedural requirements of App.R. 5
and the time requirements of App.R. 4(B).” State v. Wallace (1975), 43 Ohio



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St.2d 1, 72 O.O.2d 1, 330 N.E.2d 697, syllabus. App.R. 5(C) provides, “When
leave is sought by the prosecution from the court of appeals to appeal a judgment
or order of the trial court, a motion for leave to appeal shall be filed with the court
of appeals within thirty days from the entry of the judgment and order sought to
be appealed * * *. Concurrently with the filing of the motion, the movant shall
file with the clerk of the trial court a notice of appeal in the form prescribed by
App.R. 3 and file a copy of the notice of appeal in the court of appeals.”
       {¶ 28} The state filed a motion for leave to appeal, but the motion was not
filed within 30 days of the March 16 entry being appealed, and it was not filed
concurrently with the state’s notice of appeal. Because the state did not comply
with the requirements of App.R. 5, the court of appeals patently and
unambiguously lacked jurisdiction over the state’s appeal. See generally State v.
Mitchell, Lucas App. No. L-03-1270, 2004-Ohio-2460, ¶ 11-12; see also State v.
Tate, 179 Ohio App.3d 71, 2008-Ohio-5686, 900 N.E.2d 1018, ¶ 51.
       {¶ 29} Moreover, even if the court were to consider the state’s irrelevant
argument regarding the common pleas court’s modification of Steffen’s rape
conviction to attempted rape, the state would still not prevail.
       {¶ 30} In construing R.C. 2945.67(A), “our paramount concern is the
legislative intent” of its enactment. State ex rel. Steele v. Morrissey, 103 Ohio
St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. To discern this intent, “[w]e
consider the statutory language in context, construing words and phrases in
accordance with rules of grammar and common usage.” State Farm Mut. Auto.
Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 25.
“Dismiss” means to “terminate (an action or claim) without further hearing, esp.
before the trial of the issues involved.” Black’s Law Dictionary (9th Ed.2009)
537. The trial court did not grant a motion to dismiss the rape charge in the
indictment. There was no motion to dismiss the charge or the indictment.




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       {¶ 31} Nevertheless, the judges rely on our holding in Craig, 116 Ohio
St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, to claim that the trial court’s
modification of the jury verdict convicting Steffen of rape to reduce his
conviction to attempted rape constituted a dismissal of the rape charge from the
indictment, which authorized the state’s appeal as a matter of right under R.C.
2945.67(A). In In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207,
we held that a court’s dismissal of a murder charge on its own motion was the
equivalent of a “ ‘decision grant[ing] a motion to dismiss’ ” under R.C.
2945.67(A) so as to permit the state’s appeal as of right from the dismissal. Id. at
¶ 13. In Craig, syllabus, and ¶ 15-16, we relied on S.J. to hold that “[p]ursuant to
R.C. 2945.67(A), the state may appeal the dismissal of an indictment whether the
dismissal is with or without prejudice.” Finally, in A.J.S., 120 Ohio St.3d 185,
2008-Ohio-5307, 897 N.E.2d 629, ¶ 33, we held that the state could appeal as a
matter of right from a juvenile court’s denial of a motion for a bindover of the
case to the common pleas court to try the juvenile delinquent as an adult because
it was the “functional equivalent of the dismissal of an indictment”:
       {¶ 32} “Here, however, the juvenile court did not dismiss any charge or
indictment; it merely denied the motion to transfer. In doing so, however, it
prevented the state from seeking a criminal indictment to try A.J.S. as an adult.
Because a juvenile court order denying a motion for mandatory bindover
terminates the state’s ability to secure an indictment for the acts charged, its
denial of a mandatory transfer is the functional equivalent of the dismissal of an
indictment. Thus, the state properly appealed as of right.” Id.
       {¶ 33} Craig, which is cited by the judges, and S.J. do not support the
state’s claimed appeal as a matter of right in the underlying criminal case because
the trial court did not dismiss the rape charge or indictment either sua sponte or on
motion of a party.




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        {¶ 34} Furthermore, the trial court’s modification of the jury verdict to
reduce Steffen’s rape conviction to a conviction for attempted rape – following
trial and after the introduction of newly discovered evidence – is not the
“functional equivalent” of a dismissal of the rape charge pursuant to A.J.S. Id. at
¶ 33.   A motion to dismiss an indictment tests the legal sufficiency of the
indictment, regardless of the quality or quantity of the evidence that may be
introduced by either the state or the defendant. See, e.g., State v. Certain, 180
Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d 1259, ¶ 4; State v. Preztak, 181
Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 12. These motions are
generally raised prior to trial. See Crim.R. 12(C)(2), requiring defenses and
objections based on defects in the indictment to be raised before trial.         By
contrast, the trial court’s modification of a jury verdict is normally based on
evidence that is introduced at trial. See Crim.R. 33(A)(4); State ex rel. Shearer v.
Wertz (1977), 50 Ohio St.2d 348, 350, 4 O.O.3d 483, 364 N.E.2d 36 (“the record
relates the verdict modification to the evidence in the case before respondent, as
required by Crim.R. 33(A)(4)”). Here, the modification is even further removed
from the pretrial process usually associated with motions to dismiss an indictment
or charges therein because it is based on newly discovered evidence – DNA test
results and another’s confession clearing Steffen of the rape – long after the trial
of this case had concluded. The trial court’s modification of the jury verdict did
not, as did the trial court’s denial of the bindover in A.J.S., 120 Ohio St.3d 185,
2008-Ohio-5307, 897 N.E.2d 629, at ¶ 33, “prevent[] the state from seeking a
criminal indictment” against Steffen. In fact, the criminal indictment against
Steffen had already been returned.       Therefore, the trial court’s action was
manifestly neither a dismissal of the rape charge in the indictment nor its
functional equivalent so as to permit the state to prosecute an appeal as a matter of
right from the trial court’s decision.
                                     Conclusion




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          {¶ 35} Therefore, because the state’s appeal in Steffen’s 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 and should have granted
Steffen’s motion to dismiss it. “Where jurisdiction is patently and unambiguously
lacking, relators need not establish the lack of an adequate remedy at law because
the availability of alternate remedies like appeal would be immaterial.” State ex
rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-
2637, 889 N.E.2d 500, ¶ 15. Steffen has established his entitlement to the
requested writ of prohibition to prevent the court of appeals judges from
proceeding to consider the state’s pending appeal from the common pleas court’s
decision granting a new penalty-phase trial in the underlying criminal case. Thus,
we grant a writ of prohibition to prevent the court of appeals judges from
proceeding on the state’s pending appeal and to compel them to dismiss the
state’s appeal.
                                                                    Writ granted.
          PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and CUPP, JJ.,
concur.
          LANZINGER, J., concurs in judgment only.
          BROWN, C.J., not participating.
                                __________________
          LANZINGER, J., concurring in judgment only.
          {¶ 36} The court of appeals contends that it does not patently and
unambiguously lack jurisdiction over the state’s appeal because the state has a
right to appeal the trial court’s modification of the rape count to attempted rape
pursuant to R.C. 2945.67(A). However, the state requested this change and would




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have no right to appeal the “dismissal” of the rape count under the invited-error
doctrine. See State v. Bey (1999), 85 Ohio St.3d 487, 493-494, 709 N.E.2d 484.
       {¶ 37} In any event, the state’s appeal does not concern the amendment of
the rape count, but rather the decision to grant a new trial as to the penalty phase
of the proceedings. This court has previously held that a decision granting a new
trial in a criminal case is a final appealable order that the state may appeal by
leave of court. State v. Matthews (1998), 81 Ohio St.3d 375, 691 N.E.2d 1041,
syllabus. Because the state did not seek leave to appeal, the court of appeals
patently and unambiguously lacks jurisdiction to hear the state’s appeal.          I
therefore concur in the judgment to grant the writ of prohibition.
                               __________________
       Dennis C. Belli; and Timothy Young, State Public Defender, and Randall
L. Porter, Assistant Public Defender, for relator.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for respondents.
                            ______________________




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