[Cite as State v. Mitchell, 2016-Ohio-7674.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY

State of Ohio,                                  :
                                                :
        Plaintiff-Appellee,                     :     Case No. 16CA12
                                                :
        v.                                      :
                                                :
Porter Mitchell,                                :     DECISION AND JUDGMENT ENTRY
                                                :
        Defendant-Appellant.                    :     RELEASED: 11/03/16
                                                :

______________________________________________________________________

HOOVER, J.

        {¶1}     Appellant Porter Mitchell filed an appeal from a trial court order denying

his motion for an acquittal under Crim.R. 29(C). Because the entry being appealed may

not be a final appealable order, we directed Mitchell to file a memorandum addressing

the jurisdictional issue. Mitchell responded and acknowledged the general rule that a

denial of a motion for acquittal is not a final appealable order, even when made after a

hung jury mistrial. However, he argues that he made his motion for acquittal after a “jury

misconduct” mistrial, not a “hung jury” mistrial. Mitchell argues that this distinction is

significant and that the trial court’s denial of his motion is a final, appealable order.

However, Mitchell cites no case law to support his argument. We find no such

distinction in the case law. An order denying a motion for an acquittal is not a final,

appealable order. We lack jurisdiction over this appeal and DISMISS it.

                                         Procedural Background

        {¶2}     Mitchell was charged with several counts of drug possession and having
Gallia App. No. 16CA12                                                                      2


weapons while under disability. The state presented its case and the jury deliberated for

approximately 11 hours. During the deliberations, the trial court dismissed the jury and

declared a mistrial. Although the reason for the mistrial is not in the record before us,

Mitchell states that the mistrial occurred because the jurors consulted law books and

jury instruction books instead of seeking answers from the judge. In its entry granting a

mistrial, the court stated that a second jury trial would be scheduled at a later date.

       {¶3}   Mitchell filed a motion for acquittal under Crim.R. 29(C). The trial court

denied it citing conflicting testimony between witnesses and finding that witnesses’

credibility was a determination for the jury. Mitchell appealed. We sua sponte raised the

question whether an order denying a motion for an acquittal under Crim.R. 29(C) is a

final, appealable order.

                                       Legal Analysis

       {¶4}   “The requirement of a final, appealable order is equally important in both

civil and criminal cases. ‘An appellate court can review only final orders, and without a

final order, an appellate court has no jurisdiction.’ ” State v. Anderson, 138 Ohio St.3d

264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 28, quoting Supportive Solutions, L.L.C. v.

Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d

490, ¶ 10.

       {¶5}   “R.C. 2953.02 authorizes appellate courts to review the judgment or final

order of a trial court in a criminal case.” Anderson at ¶ 29. Appellate courts apply R.C.

2505.02 and its definition of “final order” to determine whether the order issued by the

trial court in a criminal proceeding is a final, appealable order. Id.
Gallia App. No. 16CA12                                                                        3


       {¶6}   The question here is whether the denial of a motion to acquit under

Crim.R. 29(C) is a final, appealable order under R.C. 2505.02.

              The relevant provisions of R.C. 2505.02 provide:

       (B) An order is a final order that may be reviewed, affirmed, modified, or
       reversed, with or without retrial, when it is one of the following:

       (1) An order that affects a substantial right in an action that in effect determines
       the action and prevents a judgment;

       (2) An order that affects a substantial right made in a special proceeding or upon
       a summary application in an action after judgment;

                            *             *             *
        (4) An order that grants or denies a provisional remedy and to which both of the
       following apply:

       (a) The order in effect determines the action with respect to the provisional
       remedy and prevents a judgment in the action in favor of the appealing party with
       respect to the provisional remedy.

       (b) The appealing party would not be afforded a meaningful or effective remedy
       by an appeal following final judgment as to all proceedings, issues, claims, and
       parties in the action.

                            *              *             *

       {¶7}   An order denying a motion for an acquittal is not a final order under the

first provision of R.C. 2505.02(B)(1) because it does not determine the defendant’s guilt

or prevent a judgment.

       {¶8}   The order is not a final order under the second provision of R.C.

2505.02(B)(2) because it does not “affect a substantial right.” “Substantial right” is

defined in R.C. 2505.02(A) as “a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person to

enforce or protect.” Although a defendant has a substantial right to the protections
Gallia App. No. 16CA12                                                                          4


afforded under the rules of criminal procedure, in order to be a final order, the order

must be one that “affects” a substantial right. An order affects a substantial right only if,

in the absence of an immediate appeal, it forecloses appropriate relief in the future or

prejudices one of the parties involved. Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63,

616 N.E.2d 181 (1993). Here, the trial court’s denial of his motion for acquittal does not

foreclose appropriate relief in the future or prejudice Mitchell. He has appropriate relief

and may prevail in the future at a second trial. Because the order does not affect a

substantial right, we need not analyze whether it was made in a “special proceeding”.

       {¶9}   In State v. Alderman, 4th Dist. Athens No. CA1433, 1990 WL 253034

(Dec. 11, 1990) we held that a denial of a motion for acquittal is not a final, appealable

order even when made after a hung jury mistrial. Id at *4; see also State v. Leece, 12th

Dist. Butler No. CA89-06-084, 1990 WL 49993, *2 (Apr. 23, 1990)(“ the denial of a

motion to acquit on the basis of insufficient evidence is not a final appealable order”).

Alderman and Leece relied on federal cases that interpreted the federal statute

governing final orders and were decided before the 1998 amendments to R.C. 2505.02.

       {¶10} In 1998, the General Assembly amended R.C. 2505.02. 1998 Sub.H.B.

No. 394, 147 Ohio Laws, Part II, 3277, 3278. The prior language of R.C. 2505.02 “was

more restrictive concerning what constitutes a final, appealable order than the one

currently in effect.” State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d

711, ¶ 7. Among other changes, R.C. 2505.02(B)(4) now contains an expanded

definition of a “final order” and includes orders that grant or deny a “provisional remedy”

and otherwise satisfy certain specified criteria.
Gallia App. No. 16CA12                                                                          5


        {¶11} An order is a final, appealable order under R.C. 2505.02(B)(4) if (1) the

order grant or deny a provisional remedy as that term is defined in the statute, (2) the

order in effect determines the action with respect to the provisional remedy, and (3) the

appealing party would not be afforded a meaningful review of the decision if that party

had to wait for final judgment as to all proceedings in the action. Anderson, 138 Ohio

St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 42.

        {¶12} A “provisional remedy” for purposes of defining “final order” is “a

proceeding ancillary to an action.” R.C. 2505.02(A)(3). The term “ancillary proceedings”

is not defined in the statute and is given its plain, common, ordinary meaning. See R.C.

1.42.

        “[F]or purposes of R.C. 2505.02(A)(3)' s definition, ‘[a]n ancillary proceeding is
        one that is attendant upon or aids another proceeding.’ ” An ancillary proceeding
        is an “ancillary suit,” i.e., “[a]n action, either at law or in equity, that grows out of
        and is auxiliary to another suit and is filed to aid the primary suit, to enforce a
        prior judgment, or to impeach a prior decree.”

(Citations omitted.) Anderson at ¶ 47.

        {¶13} A motion for acquittal is not an ancillary proceeding. It does not “grow out

of” the primary suit, but is directly connected to the substantive issues at trial and has

everything to do with the prosecution’s case and the question of the defendant’s guilt.

Because a motion for acquittal is not an ancillary proceeding, we end our analysis and

need not consider the remaining two requirements in R.C. 2505.02(B)(4). State v.

Muncie, 90 Ohio St.3d 440, 446, 2001-Ohio-93, 746 N.E.2d 1092 (each part of the

three-part test must be satisfied under R.C. 2505.02(B)(4) for an order to be a final,

appealable order).
Gallia App. No. 16CA12                                                                          6


       {¶14} Since 1998, several other appellate districts have held that a denial of a

motion for acquittal is not a final appealable order. See State v. Ross, 184 Ohio App.3d

174, 2009-Ohio-3561, 920 N.E.2d 162, ¶ 14 (9th Dist.), quoting State v. Abboud, 8th

Dist. Cuyahoga Nos. 80318 and 80325, 2002-Ohio-4437, ¶ 8 (“ ‘The denial of a motion

for judgment of acquittal prior to final sentencing is an interlocutory order. Accordingly,

the trial court was permitted to “revisit” the order that denied [the defendant's] motion for

acquittal’ ”); see also State ex rel. DeWine v. Burge, 128 Ohio St.3d 1230, 2011-Ohio-

1755, 948 N.E.2d 954, ¶ 26 (Lanzinger, J., dissenting)(in dicta stating that trial court

orders on motions for acquittal are interlocutory).

       {¶15} Although Mitchell argues that an order denying a motion for acquittal after

the trial court declares a mistrial based on “jury misconduct” is different and should be

considered final, he cites no cases to support his argument. The facts in Ross, supra

are similar and Ross does not support Mitchell’s position. In Ross, supra, the trial court

declared a mistrial after the jury foreperson wrote the trial judge a note expressing

concerns about statements and actions of one of the jurors. Ross filed a timely motion

for acquittal and the trial court denied it. Later the trial court reconsidered the motion for

acquittal and granted it as to some charges but denied it as to others. The state

appealed arguing that the trial court could not reconsider its prior order denying the

acquittal. The Ninth District Court of Appeals found that the trial court's initial denial of

Ross's motion for acquittal was not a final judgment:

       It did not, “in effect[,] determine[ ] the action and prevent[ ] a judgment.” R.C.
       2505.02(B)(1). Nor did it fall within any of the other subparts of R.C. 2505.02(B).
       Rather, the trial court's initial denial of Ross's renewed motion for acquittal was
       an interlocutory order.
Gallia App. No. 16CA12                                                                         7



Ross at ¶ 12. The Ninth District then held that the trial court did not err in reconsidering

its decision on the acquittal motion. “[U]nless orders denying motions for acquittal are

different from other interlocutory orders, a trial court has authority to reconsider them.”

Id. at ¶ 17.

       {¶16} The state appealed to the Supreme Court of Ohio and the Court

addressed the narrow issue whether a trial court may reconsider a ruling denying a

timely filed Crim.R. 29(C) motion for acquittal and grant the motion based on a

defendant's renewed motion filed after the 14–day period in Crim.R. 29(C) has expired.

State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992. The Court held

that the trial court had erred in reconsidering its initial denial of Ross's motion for

acquittal, because the renewed motion was filed well outside the 14–day period

established by Crim.R. 29(C) for filing such motions. Id. at ¶ 49.

       {¶17} Notably in its decision, the Supreme Court of Ohio did not expressly

address, question, or criticize the Ninth District’s underlying holding that an order

denying a motion for an acquittal an interlocutory order. Instead, the Court appeared to

implicitly agree with the first part of the Ninth District’s holding that the order was

interlocutory, but found that despite its interlocutory nature, the trial could not reconsider

its prior order where the defendant filed a “renewed motion” for acquittal outside the

timeframe of Crim.R. 29(C). Id at ¶25-40; see also Id. at ¶ 53-56 (Brown, C.J.,

dissenting)(arguing that a trial court’s ability to reconsider an interlocutory order is not

divested simply because a party submits a supplemental filing). Implicit in both the
Gallia App. No. 16CA12                                                                      8


majority and the dissenting opinions is the underlying consensus that an order denying

a motion for acquittal is an interlocutory order – not a final, appealable order.

       {¶18} Because an order denying a motion for an acquittal is not a final,

appealable order under R.C. 2505.02, we lack jurisdiction to consider this appeal.

       {¶19} APPEAL DISMISSED.

       {¶20} The clerk shall serve a copy of this order on all counsel of record at their

last known addresses by ordinary mail. IT IS SO ORDERED.

Abele, J. and McFarland, J.: Concur.



                                                  FOR THE COURT


                                                  _____________________________
                                                  Marie Hoover
                                                  Judge
