[Cite as State v. Foster, 2019-Ohio-2584.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                      No. 19AP-112
v.                                                 :               (C.P.C. No. 06CR-6880)

William A. Foster,                                 :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                       Rendered on June 27, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: William A. Foster, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, William A. Foster, appeals from a decision of the
Franklin County Court of Common Pleas entered on January 29, 2019, summarily denying
Foster's motion to vacate his murder conviction and sentence as void ab initio. As a result
of Foster's 2007 direct appeal we modified the jury verdict finding Foster guilty of
aggravated murder so as to find him guilty of the lesser-included offense of murder, having
found insufficient evidence of prior calculation and design. State v. Foster, 10th Dist. No.
07AP-419, 2007-Ohio-6279 ("Foster I"). In this decision, we find that the trial court acted
within its proper authority following our remand in Foster I, when it resentenced Foster for
the offense of murder. Thus, we overrule Foster's sole assignment of error.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 11, 2006, a Franklin County Grand Jury indicted Foster for
aggravated murder with a firearm specification and possession of a weapon while under
No. 19AP-112                                                                             2


disability. (Sept. 11, 2006 Indictment.) Foster pled "not guilty" and, in 2007, the court held
a trial. (Apr. 25, 2007 Jgmt. Entry at 1.) The jury found Foster guilty of aggravated murder,
and the trial judge found him guilty of the weapon under disability offense. (Apr. 25, 2007
Jury Verdict Form; Apr. 25, 2007 Bench Verdict Form.) The trial court sentenced him to
20 years to life for aggravated murder, with an additional consecutive 3 years for the
firearm specification and 3 concurrent years for the weapon under disability offense.
(Apr. 25, 2007 Jgmt. Entry at 1.) Foster appealed. (May 17, 2007 Notice of Appeal.)
       {¶ 3} In a decision issued on November 27, 2007, this Court affirmed in part and
reversed in part. Foster I. Among other issues, we reviewed the evidence presented at trial
and found that there was sufficient evidence to show that Foster fatally shot an unarmed
man immediately following an argument at a crack house. Id. at ¶ 7-43. Yet because "acting
on the spur of the moment or after momentary consideration of the purpose to cause death
is not sufficient" proof of "prior calculation and design," we found that element of
aggravated murder not sufficiently proved at trial. Id. at ¶ 35-42. However, since the
remaining elements of aggravated murder were proved, we found that the prosecution had
sufficiently proved that Foster committed the lesser-included offense of murder. Id. at ¶ 43-
44. We then vacated the judgment with respect to the aggravated murder charge and
remanded the case for resentencing on the lesser-included offense of murder with a firearm
specification. Id. at ¶ 51.
       {¶ 4} On remand for resentencing, the trial court sentenced Foster to 15 years to
life for murder and consecutively sentenced him to prison for 3 years for the firearm
specification while concurrently sentencing him to 3 years for the weapon under disability
offense. (Jan. 29, 2008 Jgmt. Entry at 2.) Foster did not directly appeal again.
       {¶ 5} On January 8, 2009, Foster filed what amounted to a postconviction petition
in which he sought to argue that the prosecution had knowingly presented false testimony
from a jailhouse informant and had failed to timely disclose prior inconsistent statements
of another witness. (Jan. 8, 2009 Petition in passim.) The trial court denied the petition
as untimely and this Court affirmed. (Feb. 19, 2009 Decision & Entry.) State v. Foster, 10th
Dist. No. 09AP-227, 2009-Ohio-5202 ("Foster II").
       {¶ 6} Ten years later, on January 8, 2019, Foster filed a motion to vacate the
judgment against him as "void ab initio for want of subject-matter jurisdiction." (Jan. 8,
No. 19AP-112                                                                             3


2019 Mot. to Vacate.) In that motion, he argued that we had no authority to modify the
verdict (as we did in Foster I), that no jury ever found him guilty of murder, and that
therefore, the trial court lacked legal authority to sentence him for that crime. The State
opposed the motion arguing, among other things, that this Court did have the power to
reduce Foster's conviction to a lesser-included offense and that the trial court had no choice
but to follow our decision when we remanded for resentencing. (Jan. 16, 2019 Memo. in
Opp. at 2, 4.) See also Foster I at ¶ 7-43, 51. Approximately two weeks later, without stating
reasons for the denial, the trial court denied Foster's motion to vacate. (Jan. 29, 2019
Decision & Entry.)
       {¶ 7} Foster now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 8} Foster asserts a single assignment of error for review:
                THE TRIAL COURT VIOLATED THE DEFENDANTS
                RIGHTS AFFORDED TO THE APPELLANT UNDER THE
                OHIO CONSTITUTION ARTICLE I §§§'s 2, 10, AND 16 AND
                THE 5TH, 6TH, AND 14TH AMENDMENTS RIGHTS UNDER
                THE & UNITED STATES CONSTITUTIONS.

(Sic passim.)
III. DISCUSSION
       {¶ 9} Foster summarizes his argument as follows:
                Appellant was never found guilty of the lesser[-]included
                offense of murder by the jury * * *. Thus, this Honorable Court
                lacked the authority to modify the verdict and order
                resentencing on that modification.

(Foster's Brief at 2.) Foster reasons that because we found the evidence of aggravated
murder was insufficient and he was never convicted of murder by a jury, our decision was
wrong, the trial court's resentencing was void, and the proper remedy is now for him to be
released. Id. at 11. This argument does not succeed, either procedurally or substantively.
       {¶ 10} The trial court was without authority to overrule our determination and
disregard our instructions as to how to proceed. Nolan v. Nolan, 11 Ohio St.3d 1, 3-4 (1984).
The trial court therefore lacked jurisdiction to engage in the analysis sought by Foster's
motion to vacate. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 20. And it was
No. 19AP-112                                                                                             4


not in a position to consider a decade-delayed appeal in any event. See S.Ct.Prac.R. 7.01;
App.R. 26(A).
        {¶ 11} Even had there been jurisdiction, we note that this Court has authority to
modify judgments. App.R. 12(A)(1)(a). Specifically, when a court (including an appellate
court) finds that an element of a greater offense on which a defendant has been convicted
was not sufficiently proved but that the elements of a lesser-included offense were
sufficiently proved, the court is empowered to modify the verdict accordingly. Crim.R.
33(A)(4)1; State v. Reed, 65 Ohio St.2d 117, 123-25, 123, fn. 1 (1981) (modifying "aggravated
murder" to "murder" where, among other issues, "prior calculation and design" were
insufficiently proven).
        {¶ 12} This is because "[l]esser included offenses need not be separately charged in
an indictment[;] when an indictment charges a greater offense, it necessarily and
simultaneously charges the defendant with lesser included offenses as well." (Quotation
marks omitted.) State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 8, quoting State v.
Smith, 121 Ohio St.3d 409, 2009-Ohio-787, ¶ 14; State v. Lytle, 49 Ohio St.3d 154, 157
(1990). This same modification also does not offend Foster's Sixth Amendment right to
trial by jury because, by definition, a lesser-included offense is generally committed when
the greater offense is committed. Evans at paragraph two of the syllabus; State v. Deanda,
136 Ohio St.3d 18, 2013-Ohio-1722, ¶ 6.
        {¶ 13} The definition of murder includes this language: "No person shall purposely
cause the death of another." R.C. 2903.02(A). The definition of aggravated murder is the
same, except that it includes an additional element: "No person shall purposely, and with
prior calculation and design, cause the death of another." (Emphasis added.) R.C.
2903.01(A). Even though the jury erred in finding that Foster acted with prior calculation
and design (see Foster I at ¶ 35-42), its verdict still established that Foster "purposely * * *
cause[d] the death of another." R.C. 2903.01(A); R.C. 2903.02(A). This was what the jury
needed to find for Foster to be guilty of murder. The trial court properly resentenced Foster
for a conviction of murder.
        {¶ 14} Foster's sole assignment of error is overruled.

1 The State cites R.C. 2945.79(D) for this proposition. (State's Brief at 8.) But Reed noted that Crim.R.

33(A)(4) superseded R.C. 2945.79(D). Reed at 123, fn. 1; see also State v. Guy, 10th Dist. No. 17AP-322, 2018-
Ohio-4836, ¶ 64, fn. 1.
No. 19AP-112                                                                            5


IV. CONCLUSION
       {¶ 15} Appellate rules imbue this Court with the authority to modify the verdict of
aggravated murder to a lesser-included offense of murder. Because a jury finding of
aggravated murder includes a finding of murder and because we only invalidated the jury's
finding of "prior calculation and design," the trial court had legal authority to resentence
Foster for the offense of murder. Because the trial court's January 29, 2019 judgment entry
is not void, voidable, or otherwise in error, and because the trial court further lacks
jurisdiction to do as Foster requests and made no prejudicial error in denying his motion,
we affirm the judgment of the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                       BEATTY BLUNT and NELSON, JJ., concur.
