[Cite as State v. Jones, 2013-Ohio-572.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98209



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   DEMETRIUS JONES
                                                        DEFENDANT-APPELLANT


                                           JUDGMENT:
                                            AFFIRMED


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

               BEFORE:           Blackmon, J., Celebrezze, P.J., and Kilbane, J.

              RELEASED AND JOURNALIZED:                     February 21, 2013
                               2




ATTORNEY FOR APPELLANT

Rufus Sims
75 Public Square
Suite 1111
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Katherine Mullin
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                              3
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Demetrius Jones (“Jones”) appeals his conviction for murder and

assigns the following error for our review:

       I. Where a defendant is convicted of murder pursuant to R.C.
       2903.02(B), and felonious assault is both the key element of the offense
       and the predicate, the conviction must be overturned where the jury
       acquitted the defendant of the separate charge of felonious assault.

       {¶2} Having reviewed the record and pertinent law we affirm Jones’s conviction.

 The apposite facts follow.

                                          Facts

       {¶3} The Cuyahoga County Grand Jury charged Jones 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 murder of his girlfriend’s one-year-old baby

who was left in Jones’s care.

       {¶4} 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 2903.02 of the Revised Code.” The felonious assault count alleged

that Jones “did knowingly cause serious physical harm to [C.G.].”   The jury returned a

guilty verdict on the murder count, but not guilty on the felonious assault count. Jones

moved for an acquittal and/or new trial. He argued that the acquittal on the felonious

assault count was inconsistent with the verdict on the murder count because felonious
                                           4
assault is an element of the murder count. The trial court granted the motion, and the

state appealed.

       {¶5} This court in State v. Jones, 8th Dist. No. 96901, 2012-Ohio-920, reversed

the trial court’s granting of the motion. Relying on well established precedent, we held

that “‘a verdict that convicts a defendant of one crime but acquits him of another, even

when the first crime requires proof of the second, may not be disturbed merely because

the two findings are irreconcilable.’” Id. at ¶ 7, quoting U.S. v. Powell, 469 U.S. 57,

65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). We explained, “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.” Jones at ¶ 9.

       {¶6} On remand, the trial court reinstated the conviction and sentenced Jones to

15 years to life.

                                      Res Judicata

       {¶7} In his assigned error, Jones contends that his conviction was against the

manifest weight of the evidence because the jury found him not guilty of the separate

offense of felonious assault; therefore, he contends he did not have the mens rea

necessary to commit the felony-murder offense that was predicated on felonious assault.

       {¶8} We conclude that res judicata prevents Jones from raising these arguments.

This court has already held that his conviction for murder could stand in spite of the fact

the jury found him not guilty of felonious assault. Jones is attempting to appeal our prior
                                             5
decision by filing another appeal because he is attempting to reargue that a defendant

cannot be found guilty of felony-murder and not guilty of a separate charge for the

predicate offense. The law of the case doctrine precludes us from altering our prior

decision. The law of the case doctrine provides that the decision of a reviewing court in

a case remains the law of the case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio

St.3d 1, 3, 462 N.E.2d 410 (1984); State v. Frazier, 8th Dist. No. 95814,

2011-Ohio-2927.

       {¶9} Additionally, res judicata also prevents our review of Jones’s argument.

“Where an argument could have been raised on an initial appeal, res judicata dictates that

it is inappropriate to consider that same argument on a second appeal following remand.”

State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 1995-Ohio-129, 652 N.E.2d 710. Accord

State v. Gillard, 78 Ohio St.3d 548, 549, 1997-Ohio-183, 679 N.E.2d 276 (on appeal after

remand, “new issues” are barred by res judicata). He could have filed a cross-appeal in

the first appeal in order to preserve his arguments, but failed to do so. Gillard, 78 Ohio

St.3d at 549 (because the appellant failed to raise these issues in his cross-appeal when

his conviction was affirmed, his arguments are barred by res judicata.) Accordingly,

Jones’s sole assigned error is overruled.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.
                                           6
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

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

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
