[Cite as State v. Moore, 2012-Ohio-2935.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97775



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                 ROBERT MOORE, III
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-521078

        BEFORE: Kilbane, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                    June 28, 2012
APPELLANT

Robert Moore III, pro se
Inmate No. 572-298
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

          {¶1} Defendant-appellant, Robert Moore, III (“Moore”), pro se, appeals from the

trial court’s judgment denying his motion for acquittal pursuant to Crim.R. 29(C).

Finding no merit to the appeal, we affirm.

          {¶2} In February 2009, Moore was charged in a multi-count indictment with

several codefendants. Counts 1 and 4 charged him with drug possession, and each count

carried a one-year firearm specification and multiple forfeiture specifications. Counts 2

and 5 charged him with drug trafficking, and each count carried a one-year firearm

specification and carried multiple forfeiture specifications. Count 3 charged him with

carrying a concealed weapon and carried a forfeiture specification. Count 7 charged him

with possessing criminal tools and carried multiple forfeiture specifications.

          {¶3} The matter proceeded to a jury trial, at which he was found guilty of all

counts and specifications. The trial court sentenced Moore to an agreed sentence of 13

years in prison. The trial court’s journal entry stated that, as part of the agreed-upon

sentence, Moore had waived his appellate rights.

          {¶4} Moore filed an appeal in September 2009, which this court dismissed

because the trial court’s sentencing entry indicated that Moore had waived his appellate

rights.

          {¶5} In September 2010, Moore filed a “motion to vacate and void sentence.”

Moore argued that his sentence was void because the trial court had not imposed the
mandatory fine required by R.C. 2925.11(E) and 2929.18(B), and counsel had never filed

the affidavit of indigency that would have allowed Moore to avoid the fine. Moore

contended that his sentence should be vacated in its entirety, and the trial court should

resentence him de novo and restore his appellate rights. The trial court denied Moore’s

motion.

       {¶6} Moore then appealed to this court in State v. Moore, 8th Dist. Nos. 96111

and 96112, 2011-Ohio-4246 (“Moore I”). On appeal, Moore argued that,

       although defense counsel asserted at sentencing that [he] had signed an
       affidavit of indigency and counsel would file a motion to waive the
       mandatory fine, he never signed such an affidavit and no affidavit of
       indigency was ever filed with the court. Therefore, Moore contends that
       the trial court was required to impose the mandatory fine under R.C.
       2925.11(E) and 2929.18(B)(1), and the trial court’s failure to follow the
       statutory requirements renders his entire sentence void. Id. at ¶ 11.

       {¶7} We vacated Moore’s sentence in part and remanded for resentencing

consistent with R.C. 2929.18(B)(1), finding when the trial court waived the mandatory

fine, the trial court

       relied on defense counsel’s assurance that he would file an affidavit of
       indigency. Nevertheless, no such affidavit was filed prior to entry of the
       trial court’s sentencing decision, and therefore, under R.C. 2929.18(B)(1),
       the trial court was required to impose the statutorily mandated fine.
       Because it did not do so, that part of Moore’s sentence waiving the
       mandatory fine is void. Id. at ¶ 18.1

       1We  note that the State filed a motion to certify a conflict with respect to this
court’s decision in Moore I. We certified the following conflict and the Ohio
Supreme Court has accepted review: “whether a trial court’s failure to impose the
statutorily mandated fine required by R.C. 2925.11(E) and 2929.18(B)(1) when no
affidavit of indigency is filed with the clerk of court prior to the filing of the trial
court’s journal entry of sentencing renders that part of the sentence waiving the
fine void.” The matter is currently pending before the Ohio Supreme Court in
      {¶8} On remand, Moore filed a motion for acquittal pursuant to Crim.R. 29(C).

The trial court denied the motion, finding that the “jury verdict forms were renumbered

not to prejudice [Moore]. [Moore] was found guilty without [error.]”

      {¶9} Moore then filed a “motion for acquittal,” asking the trial court to acquit

him of Count 6, possession of criminal tools. Moore argued that codefendant Michael

Parker (“Parker”) was indicted for this offense, and thus, he could not be found guilty of

this offense. The State filed a brief in opposition and the trial court denied Moore’s

motion.

      {¶10} It is from this order that Moore now appeals, raising the following single

assignment of error for review.

                              ASSIGNMENT OF ERROR

      The trial court erred to the prejudice of [Moore] by violating and depriving
      him of both due process rights thus guaranteed to him by the Fourteenth
      Amendment to the United States Constitution and Article One, Section
      Sixteen of the Ohio Constitution, when the trial court failed to grant
      [Moore’s] Crim.R. 29 motion for acquittal as to the offense to wit:
      possessing criminal tools as contained in the verdict form [Count 6,] when
      appellant was not charged by indictment for the offense of possessing
      criminal tools as found in [Count 6] of the indictment and the record does
      not contain any announcement that counts in the indictment were
      renumbered.

      {¶11} In the instant case, Moore was charged with the following six counts:

Counts 1 and 4 charged him with drug possession, Counts 2 and 5 charged him with drug

trafficking, Count 3 charged him with carrying a concealed weapon, and Count 7 charged


State v. Moore, 2011-Ohio-1664.
him with possessing criminal tools. Count 6 of the indictment applied to codefendant

Parker. At trial, the court renumbered Count 7 (possessing criminal tools) as Count 6 on

the jury verdict forms.

       {¶12} Moore argues the trial court erred by renumbering the charges because his

judgment of conviction states he was found guilty of possessing criminal tools as charged

in Count 7 of the indictment. As a result, he contends that he was never convicted of

Count 7 and he should be acquitted of Count 6 because it applies to Parker.

       {¶13} Moore’s argument, however, is barred by the doctrine of res judicata.

Under the doctrine of res judicata, a final judgment of conviction bars the convicted

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial that resulted in that judgment of conviction or on

an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967). It is well established that “any issue that could have been raised on direct appeal

and was not is res judicata and not subject to review in subsequent proceedings.” State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio1245, 846 N.E.2d 824, ¶ 16.

       {¶14} Here, Moore brought an appeal from his conviction and sentence in Moore

I. In that appeal, he failed to raise the argument he now presents. The proper avenue

for Moore would have been in his earlier appeal. Therefore, we find the sole assignment

of error to be barred by res judicata.
      {¶15} Moreover, even if we were to consider Moore’s argument, his Crim.R.

29(C) motion is untimely. Crim.R. 29(C) provides:

      If a jury returns a verdict of guilty * * *, a motion for judgment of acquittal
      may be made or renewed within fourteen days after the jury is discharged or
      within such further time as the court may fix during the fourteen day period.
       If a verdict of guilty is returned, the court may on such motion set aside the
      verdict and enter judgment of acquittal.

(Emphasis added.)

      {¶16} In the instant case, the jury returned its verdict on July 9, 2009. Moore filed

his motion more than two years later on November 15, 2011.

      {¶17} Furthermore, the renumbering of Count 7 in the jury verdict forms was not

error. See State v. Boyd, 8th Dist. Nos. 82921, 82922, 82923, 2004-Ohio-368, ¶ 28;

Gooden v. Bradshaw, 5th Dist. No. 11CA55, 2011-Ohio-5300. To avoid confusion in

the minds of the jury, the trial court renumbered the charges pertaining to Moore in the

jury verdict forms. It is clear in the instant case that Moore was convicted for the crimes

with which he was charged in the indictment.

      {¶18} Thus, Moore’s sole assignment of error is overruled.

      {¶19} Judgment is affirmed.

      It is ordered that appellee recover from appellant 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. The trial court’s denial of defendant’s

motion for acquittal having been affirmed, any bail pending appeal is terminated.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
