[Cite as State v. Jones, 2012-Ohio-920.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96901



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLANT

                                                 vs.

                                   DEMETRIUS JONES
                                               DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-524453

        BEFORE:           Cooney, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: March 8, 2012
                              2

ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

By: Matthew E. Meyer
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

James J. McDonnell
75 Public Square
Suite 700
Cleveland, Ohio 44113-2001
                                           3

COLLEEN CONWAY COONEY, J.:

      {¶1} Plaintiff-appellant, the state of Ohio (“the State”), appeals the trial court’s

granting a motion for a new trial filed by defendant-appellee, Demetrius Jones (“Jones”),

after a jury rendered two seemingly inconsistent verdicts. We find merit to the appeal

and reverse.

      {¶2} Jones was charged with one count of murder in violation of R.C.

2903.02(B), and one count of felonious assault in violation of R.C. 2903.11(A)(1). The

charges arose from the homicide of his girlfriend’s one-year-old baby. The murder count

alleged that Jones “did cause the death of [C.G.], as a proximate result of the offender

committing or attempting to commit an offense of violence that is a felony of the first or

second degree, to wit: Felonious Assault, in violation of Section 2903.04(A)(9) of the

Revised Code.” The felonious assault count alleged that Jones “did knowingly cause

serious physical harm to [C.G.].”

      {¶3} In its charge, the court instructed the jury on separate counts as follows:

      Consider the counts separately. Okay. The charges set forth in each count
      in the indictment constitute a separate and distinct matter. You must
      consider each count and the evidence applicable to each count separately.
      And you must state your finding as to each count uninfluenced by your
      verdict as to the other count. The defendant may be found guilty or not
      guilty of any one or all of the offenses charged.

      * * *
      You can consider — when you think about the multiple counts, it’s possible
      you could have differing verdicts. Do you understand? That comes from
      me. That’s the law. That’s what that whole consider the counts separately
      instruction is about.
                                            4


       {¶4} The jury returned a guilty verdict on the murder count, but not guilty on the

felonious assault count. Jones moved for acquittal and/or for a new trial. He argued

that the acquittal on the felonious assault count is inconsistent with a guilty verdict on the

murder count because felonious assault is an element of the murder count. The court

granted the motion, and this appeal followed.

       {¶5} In its sole assignment of error, the State argues the trial court abused its

discretion in granting Jones a new trial because Ohio law precludes a finding of

inconsistency between a jury’s verdicts for multiple counts within the same indictment.

We agree.

       {¶6} A trial court’s decision granting a motion for new trial will not be reversed on

appeal absent an abuse of that discretion. State v. Schiebel, 55 Ohio St.3d 71, 564

N.E.2d 54 (1990), paragraph one of the syllabus. To find an abuse of discretion, we

must find that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶7} Ever since the United States Supreme Court decided the seminal case of

United States v. Dunn, 284 U.S. 390, 52 S.Ct. 189 (1932), Ohio courts have held that “a

verdict that convicts a defendant of one crime and acquits him of another, when the first

crime requires proof of the second, may not be disturbed merely because the two findings

are irreconcilable.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d
                                            5

995, ¶ 81. See also State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d

1047; State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978).

       {¶8} In Dunn, Justice Holmes announced that “[c]onsistency in the verdict is not

necessary.” Dunn at 393. The Supreme Court upheld Dunn’s conviction of “maintaining

a common nuisance by keeping for sale at a specified place intoxicating liquor,” even

though that conviction was inconsistent with his acquittals on charges for unlawful

possession and unlawful sale of liquor. Id. at 391-394. The Dunn Court explained that

lenity is an appropriate jury power, and while a verdict may result from compromise or

mistake on the part of the jury, a judge should not upset the verdict by speculation into

such matters. Id. at 394. The Dunn Court concluded that the acquittal resulted from the

jury’s lenity, and therefore, the jury’s verdict did not necessarily “‘show that they were

not convinced of the defendant’s guilt.”’ Id. at 393, quoting U.S. v. Steckler, 7 F.2d 59, 60

(2d Cir. 1925).

       {¶9} “‘[I]nconsistent verdicts — even verdicts that acquit on a predicate offense

while convicting on the compound offense — should not necessarily be interpreted as a

windfall for the Government at the defendant’s expense.’” Gardner at ¶ 81, quoting U.S.

v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). “It is equally

possible that the jury, convinced of guilt, properly reached its conclusion on the

compound offense, and then through mistake, compromise or lenity, arrived at an

inconsistent conclusion on the lesser offense.” State v. Woodson, 24 Ohio App.3d 143,
                                            6

144, 493 N.E.2d 1018 (10th Dist.1985), citing Powell at 65. When the defendant

receives the benefit of an acquittal on one count, it is not unjust to require the defendant

to accept the jury’s conviction on the second related count. Powell at 69. In reaffirming

the rule established in Dunn and rejecting the defendant’s argument, the Powell court

explained:

       [T]he possibility that the inconsistent verdicts may favor the criminal
       defendant as well as the Government militates against review of such
       convictions at the defendant’s behest. This possibility is a premise of
       Dunn’s alternative rationale — that such inconsistencies often are a product
       of jury lenity. Thus Dunn has been explained by both courts and
       commentators as a recognition of the jury’s historical function, in criminal
       trials, to check against arbitrary or oppressive exercises of power by the
       executive branch.

        ***

       We also reject, as imprudent and unworkable, a rule that would allow
       criminal defendants to challenge inconsistent verdicts on the ground that in
       their case the verdict was not the product of lenity, but of some error
       worked against them. Such an individualized assessment of the reason for
       inconsistency would be based either on pure speculation, or would require
       inquiries into the jury’s deliberations that courts generally will not
       undertake.

       ***

       Second, respondent’s argument that an acquittal on a predicate offense
       necessitates a finding of insufficient evidence on a compound felony count
       simply misunderstands the nature of the inconsistent verdict problem.
       Whether presented as an insufficiency evidence argument, or as an
       argument that the acquittal on the predicate offense should collaterally estop
       the Government on the compound offense, the argument necessarily
       assumes that the acquittal on the predicate offense was proper — the one
       the jury “really meant.” This, of course, is not necessarily correct; all we
       know is that the verdicts are inconsistent. The Government could just as
                                           7

       easily — and erroneously — argue that since the jury convicted on the
       compound offense the evidence on the predicate offense must have been
       sufficient. Powell at 66-67.

       {¶10} Furthermore, the Fifth Amendment prohibition against double jeopardy

prevents the government from objecting to any such acquittal. Green v. U.S., 355 U.S.

184, 188 (1957), citing U.S. v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300

(1896) (noting that the government cannot appeal an acquittal even if it appears

erroneous).   It would be unfair for the defendant to have the right to appeal an

inconsistent verdict when it suits him, when the government may not. Moreover, the

Powell court observed that defendants receive adequate protection against jury

irrationality or error by a sufficiency of the evidence review at the trial and appellate

levels. Powell at 68.

       {¶11} The jury found Jones guilty of Count 1, which states that Jones “did cause

the death of [C.G.], as a proximate result of the offender committing or attempting to

commit an offense of violence that is a felony of the first or second degree, to wit:

Felonious Assault, in violation of Section 2903.02 of the Revised Code.” By finding

Jones guilty of Count 1, the jury had to have found that Jones killed the victim by

committing a felonious assault upon him. The felonious assault element is included in

the count itself.   The fact that the jury acquitted Jones of Count 2, which alleged

felonious assault alone, is not necessarily inconsistent. The court instructed the jury to

consider the counts separately. Once the jury found Jones guilty of murder, which
                                             8

included the felonious assault, the second count of felonious assault could have been

viewed as redundant.

       {¶12} The sole assignment of error is sustained.

       {¶13} Accordingly, we reverse the trial court’s judgment granting Jones a new

trial and order the trial court to reinstate his murder conviction.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

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

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
