State v. Moore ( 2024 )

[Cite as State v. Moore, 2024-Ohio-1736.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-23-25
PLAINTIFF-APPELLEE,
v.
GERRY MOORE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 22 CR 380
Judgment Affirmed
Date of Decision: May 6, 2024
APPEARANCES:
Karin L. Coble for Appellant
Kristin R. Palmer for Appellee
Michael J. Hendershot for Amicus Curiae,
Ohio Attorney General Dave Yost
Steven L. Taylor for Amicus Curiae,
Ohio Prosecuting Attorneys Association
Case No. 9-23-25
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Gerry L. Moore (“Moore”) appeals the judgment
of the Marion County Court of Common Pleas, arguing that the trial court erred by
denying his motion to dismiss the charges on double jeopardy grounds. For the
reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On August 9, 2017, Moore was indicted in Erie County, Ohio on one
count of retaliation in violation of R.C. 2921.05(B), a third-degree felony; one count
attempted aggravated murder in violation of R.C. 2903.01(A) and 2923.02(A), a
first-degree felony; and one count of conspiracy to commit aggravated murder in
violation of R.C. 2923.01(A)(1), a second-degree felony.
{¶3} The State alleged that, while he was incarcerated in Marion County,
Moore conspired to have his ex-wife, Diane, murdered. Moore purportedly offered
another inmate, Richard Kiser (“Kiser”), $50,000.00 to kill Diane after being
released from prison. After Moore continued discussing this matter for several
months, Kiser notified Diane’s attorney of Moore’s statements. Law enforcement
subsequently became involved and had Kiser speak with Moore while wearing a
recording device. During the conversation that followed, Moore reportedly gave
Kiser information about where Diane lived in Erie County; the bars she frequented;
and the vehicle she drove. Further, Moore purportedly told Kiser how he could
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poison Diane with a lethal dose of narcotics and frame Diane’s niece by planting
heroin in her car.
{¶4} After the charges were brought in Erie County, Moore filed an objection
to venue, arguing that Marion County was the proper venue for this case. In
response, the State asserted that the offense of retaliation was alleged to have
occurred in Erie County where Diane lived. The State then argued that the other
charges were part of a course of conduct that included the offense of retaliation.
The trial court denied Moore’s motion. At trial, Moore made a Crim.R. 29 motion
that challenged venue as improper. The trial court again rejected these arguments.
The jury then returned verdicts of guilty on all three charges against Moore.
{¶5} On direct appeal, Moore challenged his convictions for lack of proper
venue.1 State v. Moore, 6th Dist. Erie No. E-18-064, 2020-Ohio-6781, ¶ 23. The
Sixth District Court of Appeals concluded
that the conduct giving rise to the charge of retaliation was committed
in its entirety while appellant was confined in Marion County.
Moreover, the remaining charges in the indictment (attempted
aggravated murder and conspiracy) likewise took place entirely in
Marion County. Because none of the elements of any of the charged
offenses occurred in Erie County, as required to establish venue under
the relevant provisions of R.C. 2901.12, the state has failed to
establish venue beyond a reasonable doubt in this case.
1
In his appeal before the Sixth District, Moore challenged the trial court’s decision to deny his motion to
dismiss the indictment on venue grounds but did not address the trial court’s ruling on his Crim.R. 29 motion.
Moore, 2020-Ohio-6781, ¶ 16, 23, 46. The Sixth District concluded that the trial court did not err in denying
Moore’s motion to dismiss. Id. at ¶ 46. However, because Moore had made a Crim.R. 29 motion at trial, the
Sixth District proceeded to evaluate whether the State produced evidence to establish proper venue. Id. at ¶
46. See also Id. at ¶ 56, citing State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶
24.
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***
Were this case to have been tried in Marion County, where venue was
appropriate, appellant’s convictions for attempted aggravated murder
and conspiracy may have been upheld by the appellate court sitting in
that jurisdiction.
Id. at ¶ 55, 57. In addressing a separate assignment of error, the Sixth District also
concluded that the State failed to produce sufficient evidence to establish all of the
essential elements of the offense of retaliation. Id. at ¶ 36. As a result, the Sixth
District vacated all three of Moore’s convictions. Id. at ¶ 57.
{¶6} The Ohio Supreme Court then accepted a discretionary appeal of this
decision and affirmed the Sixth District’s conclusion that venue was improper in
Erie County. State v. Moore, 169 Ohio St.3d 18, 2022-Ohio-1460, 201 N.E.3d 834,
¶ 17. The Ohio Supreme Court then stated the following as to the issue of whether
Moore could be retried on these charges in the proper venue:
Amicus curiae Ohio Attorney General Dave Yost also asks us to
clarify that double-jeopardy protections do not preclude the state from
retrying Moore in a county in which venue is proper. See, e.g, United
States v. Petlechkov, 922 F.3d 762, 771 (6th Cir. 2019) (“A dismissal
on venue grounds does not qualify as an ‘acquittal’ for double
jeopardy purposes”). But because that issue neither was raised by the
parties below nor is a part of the proposition of law we accepted, we
must leave it for another day.
Id. at ¶ 26.
{¶7} On June 29, 2022, Moore was indicted in Marion County on one count
of conspiracy to commit aggravated murder in violation of R.C. 2923.01(A)(1), a
first-degree felony; one count of attempted aggravated murder in violation of R.C.
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2903.01(A) and R.C. 2923.02, a first-degree felony; one count of conspiracy to
commit kidnapping in violation of R.C. 2923.01(A)(1), a second-degree felony; and
one count of attempted kidnapping in violation of R.C. 2905.01(A)(3) and R.C.
2923.02, a second-degree felony. On February 17, 2023, Moore filed a motion to
dismiss the indictment on double jeopardy grounds. On March 22, 2023, the trial
court issued a decision denying this motion.
Assignment of Error
{¶8} Moore filed his notice of appeal on April 11, 2023. In this interlocutory
appeal, he raises the following assignment of error:
The trial court erred as a matter of law by denying Mr. Moore’s
motion to dismiss on grounds of Double Jeopardy and the
continued prosecution violates Article I, Section 10 of the Ohio
Constitution and R.C. 2941.25.
Moore argues that the vacatur of his convictions for improper venue means that the
two reindicted charges in this case are barred by constitutional and statutory double-
jeopardy protections.2
2
Moore was not charged with retaliation in Marion County after the Sixth District reversed his conviction
for retaliation over the State’s failure to prove an essential element of the offense in addition to the fact that
the charge was tried in an improper venue. Moore, 2020-Ohio-6781, ¶ 36, 57. He was reindicted on the
counts of conspiracy to commit aggravated murder and attempted aggravated murder. The prior convictions
that correspond to these two reindicted charges were vacated only over the issue of improper venue. Id. at ¶
57. The State also indicted Moore on the additional charges of conspiracy to commit kidnapping and
attempted kidnapping in Marion County. However, Moore does not challenge these additional charges,
stating that “neither of these counts are at issue in this appeal.” (Appellant’s Brief, 6). For this reason, we
will not address the additional charges in this opinion.
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Standard of Review
{¶9} “Appellate courts apply a de novo standard of review when reviewing
the denial of a motion to dismiss an indictment on the grounds of double jeopardy.”
State v. Rocubert, 3d Dist. Shelby No. 17-23-11, 2024-Ohio-395, ¶ 15, quoting State
v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20. Under the
this standard, the appellate court conducts an independent review of the record and
does not give deference to the trial court’s determination. State v. Mason, 2016-
Ohio-8400, 111 N.E.3d 432, ¶ 17 (3d Dist.).
Legal Standard
{¶10} “The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that no person shall ‘be subject for the same offence to
be twice put in jeopardy of life or limb.’” State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, ¶ 22. “Through the Fourteenth Amendment to the United
States Constitution, this protection applies to individuals prosecuted by the state of
Ohio.” State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928 82 N.E.3d 1141, ¶ 15.
Further, “Section 10, Article I of the Ohio Constitution also provides that ‘[n]o
person shall be twice put in jeopardy for the same offense.’” State v. Uskert, 85
Ohio St.3d 593, 594-595, 1999-Ohio-289, 709 N.E.2d 1200 (1999).
{¶11} In general, “[w]here the provisions are similar and no persuasive
reason for a differing interpretation is presented,” the Ohio Supreme Court “has
determined that protections afforded by Ohio’s Constitution are coextensive with
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those provided by the United States Constitution.” State v. Robinette, 80 Ohio St.3d
234, 238, 1997-Ohio-343, 685 N.E.2d 762 (1997). Consistent with this framework,
the Ohio Supreme Court has held that “[t]he protections afforded by the Ohio and
United States Constitutions’ Double Jeopardy Clauses are coextensive.” Mutter at
¶ 15. Thus, “the Ohio Constitution affords no greater double jeopardy protections
than the Fifth Amendment.” In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69
N.E.3d 646, ¶ 38.
{¶12} Under the Double Jeopardy Clauses, a retrial of the underlying charge
is not always barred after a conviction is reversed or vacated on appeal. State v.
Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 14. Rather, the
ability of the State to retry the charge depends upon the basis of the reversal. Id.“In general, if the reversal is based on an error that occurred at trial, a retrial is
appropriate.” Id. The rationale behind this rule is that a reversal over a procedural
or trial error “‘implies nothing with respect to the guilt or innocence of the
defendant,’ but is simply ‘a determination that [he or she] has been convicted
through a judicial process which is defective in some fundamental respect.’” Id.,quoting Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
For this reason, the “appellate remedy” for a
defective process is to remand the case to the trial court, usually for
retrial, because ‘the accused has a strong interest in obtaining a fair
readjudication of his guilt free from error, just as society maintains a
valid concern for insuring that the guilty are punished.’
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State v. Harris, 6th Dist. Erie No. E-04-034, 2007-Ohio-2397, ¶ 13, quoting Burks
v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Accordingly,
“the federal and Ohio Double Jeopardy Clauses generally are not offended when the
state retries a defendant after a conviction is reversed on appeal.” Anderson, supra,
at ¶ 33, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284,
at the syllabus.
{¶13} In contrast, “[t]he constitutional protection against double jeopardy
unequivocally prohibits a second trial following an acquittal.” State v. Hancock,
108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 139, quoting Arizona v.
Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). A
determination from a jury, a trial judge, or appellate court that “the evidence
presented by the state is ‘insufficient to establish criminal liability for an offense’
amounts to an acquittal * * *.” City of Girard v. Giordano, 155 Ohio St.3d 470,
2018-Ohio-5024, 122 N.E.3d 151, ¶ 9-10, quoting Evans v. Michigan, 568 U.S. 313,
318-319, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013). An acquittal has also been held
to “include[] ‘a ruling by the court that the evidence is insufficient to convict[]’ * *
* and any other ‘rulin[g] which relate[s] to the ultimate question of guilt or
innocence.’” State v. Street, 7th Dist. Jefferson No. 22 JE 0025, 2023-Ohio-4405,
230 N.E.3d 1229, ¶ 56, quoting United States v. Scott, 437 U.S. 82, 99, 98, and n.
11, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). See also Evans at 318-319.
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{¶14} The rationale behind the general rule barring a retrial after an acquittal
of the offense is simple: “if a conviction is reversed on appeal because ‘the state
fails to present sufficient evidence to prove every element of the crime,’ then the
state ‘should not get a second opportunity to do that which it failed to do the first
time.’” Anderson, supra, at ¶ 33, quoting State v. Lovejoy, 79 Ohio St.3d 440, 450,
1997-Ohio-371, 683 N.E.2d 1112 (1997).
{¶15} Further, “Article I, Section 10 of the Ohio Constitution affords the
accused the right to ‘a speedy public trial by an impartial jury of the county in which
the offense is alleged to have been committed.’” State v. Foreman, 166 Ohio St.3d
204, 2021-Ohio-3409, 184 N.E.3d 70, ¶ 12. Accordingly, the State must establish
venue “beyond a reasonable doubt before a conviction can be sustained.” State v.
Gonzalez, 188 Ohio App.3d 121, 2010-Ohio-982, 934 N.E.2d 948, ¶ 9 (3d Dist.).
However, “[v]enue is not a material element of any offense charged. The elements
of the offense charged and the venue of the matter are separate and distinct.” State
v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981).
Legal Analysis
{¶16} Within the last year, the United States Supreme Court decided the
question of “whether the [United States] Constitution permits the retrial of a
defendant following a trial in an improper venue and before a jury drawn from the
wrong district” in Smith v. United States, 599 U.S. 236, 241, 143 S.Ct. 1594, 216
L.Ed.2d 238 (2023). In that case, the defendant made a motion for acquittal, arguing
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that venue was improper for the theft of trade secrets charge against him. Id. at 240.
After the trial court denied this motion, the United States Court of Appeals for the
Eleventh Circuit reviewed this determination and concluded that venue was
improper on this charge. United States v. Smith, 22 F.4th 1236, 1244 (11th Cir.
2022). The Eleventh Circuit then rejected the defendant’s argument that double-
jeopardy protections would bar reprosecution of this offense in the proper venue and
vacated his conviction for theft of trade secrets. Id.{¶17} After reviewing the facts of the Smith case, the justices of the United
States Supreme Court unanimously held that the Double Jeopardy Clause does not
bar a retrial in a proper venue in such a situation. Smith, 599 U.S. 236, at 252. In
reaching this conclusion, the United States Supreme Court relied on “the general
rule that ‘[c]ulpability * * * is the touchstone’ for determining whether retrial is
permitted under the Double Jeopardy Clause.” Smith, 599 U.S. 236, at 253, quoting
Evans, supra, at 324. “When a trial terminates with a finding that the defendant’s
‘criminal culpability had not been established,’ retrial is prohibited.” Smith, 599
U.S. 236, at 253, quoting Burks, supra, at 10.
{¶18} In contrast, “retrial is permissible when a trial terminates ‘on a basis
unrelated to factual guilt or innocence of the offence of which [the defendant] is
accused.’” Smith, 599 U.S. 236, at 253, quoting Scott, supra, at 99. The United
States Supreme Court then concluded that, when a conviction is reversed for
improper venue, the “bottom-line question of ‘criminal culpability’” is not resolved
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* * *.” Smith, 599 U.S. 236, at 253, quoting Evans, supra, at 324. “Instead, such a
reversal is quintessentially a decision that ‘the Government’s case against [the
defendant] must fail even though it might satisfy the trier of fact that he was guilty
beyond a reasonable doubt.’” Smith, 599 U.S. 236, at 254, quoting Scott, supra, at
96. For this reason, a judicial determination that venue is improper does not bar a
retrial of the charges in the proper venue under the Double Jeopardy Clause of the
United States Constitution. Smith, 599 U.S. 236, at 252-253.
{¶19} Four years prior to the Smith decision, the United States Court of
Appeals for the Sixth Circuit reached the same conclusion in United States v.
Petlechkov, supra, and provided the following guidance about what constitutes an
acquittal that bars a retrial under the Double Jeopardy Clause:
An ‘acquittal’ is ‘any ruling that the prosecution’s proof is insufficient
to establish criminal liability for an offense.’ Evans, 568 U.S. at 318,
133 S.Ct. 1069. In contrast, procedural dismissals ‘unrelated to
factual guilt or innocence’ do not implicate double jeopardy concerns.
Id. at 319, 133 S.Ct. 1069. * * *
A dismissal on venue grounds does not qualify as an ‘acquittal’ for
double jeopardy purposes. Though venue is a factual issue that the
government must prove, it is not an element of the underlying criminal
offense.
Id. at 771, citing Wilkett v. United States, 655 F.2d 1007, 1011-1012 (10th Cir. 1981)
(holding that “[v]enue is wholly neutral; it is a question of procedure, more than
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anything else, and it does not either prove or disprove the guilt of the accused”).
See also Moore, 2022-Ohio-1460, at ¶ 26, citing Petlechkov at 771.3
{¶20} Turning to the case presently before us, the State is seeking to retry
Moore in Marion County on two charges that were previously brought to trial in
Erie County. Moore, 2020-Ohio-6781, ¶ 2, 57. At his trial in Erie County, Moore
made a Crim.R. 29 motion for acquittal, arguing venue was improper. After the trial
court denied his motion, the jury returned verdicts of guilty on the two charges on
which he was reindicted in Marion County. Id. at ¶ 20. As in Smith, the appellate
court concluded that venue was improper and then vacated Moore’s convictions. Id.
at ¶ 56-59. See Smith, 22 F.4th 1236, 1244.
{¶21} Further, the charges that Moore challenges on double-jeopardy
grounds in this appeal also have not been previously reversed over any purported
failure on the part of the State to establish Moore’s criminal culpability. Moore,
2020-Ohio-6781, at ¶ 57. Thus, under the United States Supreme Court’s reasoning
in Smith and the Sixth Circuit’s reasoning in Petlechkov, the double-jeopardy
protections of the United States Constitution do not prohibit a retrial of the two
charges that were brought against Moore in Marion County. Smith, 599 U.S. 236,
at 253-254; Petlechkov at 771.
3
The Ohio Supreme Court’s decision in Moore was decided roughly one year before the United States
Supreme Court’s decision in Smith. While considering the Sixth District’s resolution of Moore’s venue
challenge, the Ohio Supreme Court expressly declined to address whether double jeopardy barred a retrial as
this was not a proposition of law accepted for review. Moore, 2022-Ohio-1460, at ¶ 26. But in making this
determination, the Ohio Supreme Court directed attention to the Sixth Circuit’s decision in Petlechkov.
Moore, 2022-Ohio-1460, at ¶ 26, citing Petlechkov at 771.
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{¶22} In response to Smith, Moore asserts that we should hold that the Ohio
Constitution provides greater double-jeopardy protections than the United States
Constitution. However, the longstanding position of Ohio law is that the
constitutional protections of the federal and state Double Jeopardy Clauses are
coextensive. Anderson, supra, at ¶ 21 (The Ohio Supreme Court has “recognized
that these [double jeopardy] clauses are equivalent since at least 1893.”). The
rationale behind this position is not a mere desire for uniformity but is based on the
text and history of the Double Jeopardy Clauses of the United States and Ohio
Constitutions. See State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, 165 N.E.3d
1123, ¶ 27. As the Ohio Supreme Court has explained, “[t]he wording of the two
provisions is nearly identical, and Ohio’s provision was included in the first Ohio
Constitution, which was adopted about a decade after the ratification of the federal
Bill of Rights.” Id. at ¶ 27.
{¶23} Further, “[b]oth provisions are rooted in protections afforded by
English common law.” Giordano, supra, at ¶ 7. See also Hurley v. State, 6 Ohio
399, 402 (1834) (holding that constitutional double-jeopardy protections are “the
recognition of the common law principle on that subject”). Double-jeopardy
protections were “based upon ‘the three common-law pleas of autrefois acquit,
autrefois convict, and pardon,’ which ‘prevented the retrial of a person who had
previously been acquitted, convicted, or pardoned for the same offense.’”
Giordano, supra, at ¶ 7, quoting Scott, supra, at 87. However, “no common-law
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principle at the founding precluded retrial following a trial in an improper venue or
before an improper jury.” Smith, 599 U.S. 236, at 250.
{¶24} It is true that the Ohio Supreme Court is “not bound to walk in lockstep
with the federal courts.” Smith, 162 Ohio St.3d 353, at ¶ 28-29. However, the Ohio
Supreme Court has also stated the following:
We must be cautious and conservative when we are asked to expand
constitutional rights under the Ohio Constitution, particularly when
the provision in the Ohio Constitution is akin to a provision in the U.S.
Constitution that has been reasonably interpreted by the [United
States] Supreme Court.
State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 76.
Moore has not offered a reason based on the text or history of the Ohio Constitution
that would suggest that its double-jeopardy protections are not coextensive with
those contained in United States Constitution in this situation. See Smith, 162 Ohio
St.3d 353, at ¶ 27.
{¶25} Rather, Moore asserts that we should hold that the Ohio Constitution
provides greater double-jeopardy protections because of the Ohio Supreme Court’s
interpretation of R.C. 2945.67(A) in State v. Hampton, 134 Ohio St.3d 447, 2012-
Ohio-5688, 983 N.E.2d 324. R.C. 2945.67(A) reads, in its relevant part, as follows:
A prosecuting attorney * * * may appeal as a matter of right any
decision of a trial court in a criminal case * * * which decision grants
a motion to dismiss all or any part of an indictment, complaint, or
information, a motion to suppress evidence, or a motion for the return
of seized property or grants post conviction relief * * *, and may
appeal by leave of the court to which the appeal is taken any other
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decision, except the final verdict, of the trial court in a criminal case
* * *.
(Emphasis added.) In Hampton, an investigating detective learned in the middle of
the defendant’s trial in Franklin County that the charged offenses had actually
occurred in Fairfield County. Hampton at ¶ 5. After finding venue to be improper,
the trial court granted the defendant’s Crim.R. 29 motion rather than dismissing the
case or granting a mistrial. Id.{¶26} On appeal, the issue before the Ohio Supreme Court was whether the
State could appeal this decision under R.C. 2945.67 after the trial court had used a
Crim.R. 29 motion to address the improper venue of the trial. Hampton at ¶ 20.
The Ohio Supreme Court concluded that the trial court created a “final verdict”
within the meaning of R.C. 2945.67 by granting the Crim.R. 29 motion for improper
venue. Id. at ¶ 25. For this reason, the State was not statutorily authorized to appeal
the trial court’s decision as of right. Id. Moore raises two main arguments based
upon Hampton.
{¶27} First, Moore asserts that Hampton expands the double-jeopardy
protections of the Ohio Constitution beyond those guaranteed by the United States
Constitution. But the Ohio Supreme Court never made a determination based upon
the Double Jeopardy Clause of the Ohio Constitution in Hampton. Rather, Hampton
was a decision that interpreted R.C. 2945.67. See Hampton at ¶ 25. Over the years,
the Ohio Supreme Court has issued several decisions that have described the
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relationship between R.C. 2945.67 and the Double Jeopardy Clauses. In State ex
rel. Yates v. Court of Appeals for Montgomery County, the Ohio Supreme Court
stated that “R.C. 2945.67(A) prevents an appeal of any final verdict and is not tied
to the Double Jeopardy Clause.” (Emphasis sic.) Id. at 32 Ohio St.3d 30, 32, 512
N.E.2d 343 (1987). Yates also held that the issue of whether a Crim.R. 29(C) motion
was “a final verdict” under R.C. 2945.67 was “not one of double jeopardy * * *.”
Id.{¶28} In a subsequent decision, the Ohio Supreme Court held that R.C.
2945.67 “places independent limits on the state’s ability to pursue a criminal
appeal.” State v. Ramirez, 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, ¶
17. Since “double-jeopardy principles * * * do not prevent an appeal,” R.C. 2945.67
“afford[s] greater protection to criminal defendants than the Double Jeopardy
Clauses provide” with regard to the State’s ability to appeal an unfavorable final
verdict. State v. Ramirez, 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, ¶
17, 19, citing Yates at 32 (noting that, in contrast to the wording of the Federal
Criminal Appeals Act that existed at that time, R.C. 2945.67(A) does not bar appeals
only where double-jeopardy protections would prevent further prosecution). See
also State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, ¶ 15-16.
{¶29} These decisions do not suggest that the statutory constructions of R.C.
2945.67 define the extent of the protections that are provided by the Double
Jeopardy Clause of the Ohio Constitution in the manner suggested by Moore. Thus,
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the fact that a determination is a “final verdict” under R.C. 2945.67 does not
necessarily mean that the protections of the Double Jeopardy Clause of the Ohio
Constitution are triggered and bar a retrial of the charges.4
{¶30} But even if a trial court’s decision to grant a Crim.R. 29 motion for
improper venue creates a final verdict under R.C. 2945.67 that triggers the double-
jeopardy protections of the Ohio Constitution, Moore never received such a ruling
in this case. Rather, his Crim.R. 29 motion was denied by the trial court. Then, as
the Eleventh Circuit did in Smith, the Sixth District vacated Moore’s convictions on
appeal. Moore, 2022-Ohio-6781, at ¶ 59; Smith, 22 F.4th 1236, at 1246. Unlike the
defendant in Hampton, Moore—not the State—filed the direct appeal of his
convictions and has not identified the favorable ruling from his previous trial that
constitutes a final verdict within the meaning of R.C. 2945.67. Moore, 2022-Ohio-
6781, ¶ 1. Thus, Moore has not demonstrated the applicability of R.C. 2945.67 to
the facts of this case.
{¶31} Second, Moore asserts that the Ohio Supreme Court’s decision in
Hampton “holds the opposite” as the United States Supreme Court’s decision in
Smith. (Appellant’s Brief, 7). In support of this assertion, he points to the fact that
Hampton concluded that a Crim.R. 29 “motion for acquittal” was an appropriate
4
In State v. Honeycutt, 12th Dist. Warren No. CA2013 02 018, 2014-Ohio-352, ¶ 32-33, the Twelfth District
Court of Appeals relied on a broader interpretation of Hampton than we have in our analysis. However, the
Twelfth District did not have the benefit of the United States Supreme Court’s decision in Smith to guide its
understanding of Hampton.
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vehicle to address the issue of improper venue and that acquittals have been held to
trigger double-jeopardy protections. (Emphasis added.) Hampton, supra, at ¶ 5,
23, citing Crim.R. 29. Thus, Moore argues that Hampton should be read as saying
that a judicial determination of improper venue is an acquittal that triggers double-
jeopardy protections and, therefore, contradicts the holding in Smith.
{¶32} However, the fact that Hampton holds that a Crim.R. 29 motion is an
appropriate procedural vehicle in these circumstances does not bring these decisions
into conflict. In Smith, the United States Supreme Court addressed the effect that
granting a Rule 29 motion for improper venue has for the purposes of double
jeopardy and, in so doing, directly addressed the purported point of conflict
identified by Moore on appeal.5 Smith, 599 U.S. 236, at 253. The United States
Supreme Court explained that
[t]he reversal of a conviction based on a violation of the Venue or
Vicinage Clauses, even when styled as a ‘judgment of acquittal’ under
Rule 29, plainly does not resolve “the bottom-line question of
‘criminal culpability.’”
Id., quoting Evans, supra, at 324, fn. 6, quoting Burks, supra, at 10. In other words,
the fact that the procedural device is entitled a “motion to acquit” does not mean
that its use constitutes an acquittal of the offense for the purposes of double
jeopardy. Smith, 599 U.S. 236, at 254, citing United States v. Martin Linen Co., 430
5
Motions made under Federal Rule of Criminal Procedure 29 and Ohio Rule of Criminal Procedure 29(A)
are both entitled “motion[s] for judgment of acquittal.”
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U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (“[W]hat constitutes an
‘acquittal’ is not to be controlled by the form of the judge’s action”).
{¶33} “‘[C]ulpability * * * is the touchstone’ for determining whether retrial
is permitted under the Double Jeopardy Clause,” not the label of the motion used to
challenge venue. Smith, 599 U.S. 236, at 253, quoting Evans, supra, at 324. Thus,
for purposes of double jeopardy, an acquittal is “any ruling that the prosecution’s
proof is insufficient to establish criminal liability for an offense.” Petlechkov,
supra, at 771, quoting Evans, supra, at 318. See also Wayne R. LaFave, et al.,
Criminal Procedure, Section 25.3(a) (3d Ed. 2000) (“[A] trial court’s ruling that the
prosecution’s case-in-chief failed to establish venue, though framed as a judgment
of acquittal, does not preclude retrial because venue is an element ‘more procedural
than substantive’ which does not go to culpability.”).
{¶34} Both Hampton and Smith recognize that a motion for acquittal can be
used as a vehicle to challenge improper venue. Hampton, supra, at ¶ 23; Smith, 599
U.S. 236, at 253. However, only Smith explains the double-jeopardy implications
of a decision to grant a motion for acquittal for improper venue. The fact that
Hampton states a Crim.R. 29 motion is an appropriate procedural device to address
improper venue does not mean that its use decides the substantive issue of whether
the defendant is criminally liable. See also State v. Malinovsky, 60 Ohio St.3d 20,
24, 573 N.E.2d 22 (1991) (“In Scott, the United States Supreme Court held that
double jeopardy protection is not absolute until there is a dismissal or acquittal based
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upon a factual finding of innocence.”), citing Scott, supra, at 96-97. In the absence
of an alternative definition of an acquittal for double jeopardy purposes, we
conclude that Hampton does not contradict Smith in the manner alleged by Moore.
{¶35} In summary, Hampton interpreted R.C. 2967.45 to decide whether a
trial court’s decision to grant a Crim.R. 29 could be appealed under a statute rather
than whether charges could be retried under the Double Jeopardy Clauses.
Hampton, supra, at ¶ 25. In contrast, Smith interpreted the Double Jeopardy Clause
to decide the exact issue before us in this case: whether a judicial determination that
venue was improper barred retrial of those charges in a proper venue after the
convictions were vacated on appeal. Smith, 599 U.S. 236, at 252-253. As the
double-jeopardy protections of the Ohio Constitution and United States Constitution
have been held to be coextensive, we will follow Smith.
{¶36} In the facts of the case presently before us, neither jurors nor judges
have ever made a determination that the State failed to establish Moore’s criminal
culpability for the two charges that he challenges in this appeal. Smith, 599 U.S.
236, at 253, quoting Burks, supra, at 10. After his trial in Erie County, the jury
returned verdicts of guilty on all of the charges against him. Moore, 2020-Ohio-
6781, at ¶ 20. In his prior appeal, the Sixth District vacated his convictions of
conspiracy to commit aggravated murder and attempted aggravated murder for
improper venue but never determined that the State failed to prove any of the
essential elements of either of these offenses. Id. at ¶ 57. Thus, the judicial
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determination that the venue of Moore’s trial in Erie County was improper “d[id]
not trigger” constitutional double-jeopardy protections because this ruling did “not
adjudicate * * * [his] culpability.” Smith, 599 U.S. 236, at 254. Accordingly, the
Double Jeopardy Clauses of the United States Constitution and the Ohio
Constitution do not bar a retrial of the charges of conspiracy to commit aggravated
murder and attempted aggravated murder in Marion County.
{¶37} We turn now to Moore’s arguments based upon Ohio’s statutory
double-jeopardy protections. On appeal, he asserts that R.C. 2941.25 bars retrial of
these charges. Double-jeopardy protections guard “against three distinct wrongs:
‘(1) a second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple punishments for
the same offense.’” Giordano, supra, at ¶ 8, quoting State v. Gustafson, 76 Ohio
St.3d 425, 432, 1996-Ohio-299, 668 N.E.2d 435 (1996). “R.C. 2941.25 codifies the
double jeopardy protection against multiple punishments for the same offense.”
State v. Pope, 2017-Ohio-1308, 88 N.E.3d 584, ¶ 29 (2d Dist.).
{¶38} However, R.C. 2941.25 does not address claims that allege double
jeopardy prevents successive prosecutions. State v. Woodruff, 3d Dist. Logan No.
8-14-21, 2015-Ohio-1342, ¶ 9. See also State v. Zima, 102 Ohio St.3d 61, 2004-
Ohio-1807, 806 N.E.2d 542, fn. 3; Pope at ¶ 29. Moore has not explained how an
analysis under R.C. 2941.25 is applicable to the facts of this case or would bar a
retrial of these charges. Since Moore asserts that the charges in this case constitute
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an impermissible successive prosecution, we conclude that Moore’s arguments in
reference to R.C. 2941.25 are without merit.
{¶39} Finally, Moore argues that the implications of Yeager v. United States
required the trial court to hold an evidentiary hearing on his motion to dismiss in
this case. Id. at 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009). In Yeager,
a jury acquitted the defendant of multiple fraud charges but could not reach verdicts
on the insider trading charges. Id. at 115. The District Court declared a mistrial as
to the charges on which the jury remained hung. Id. The defendant was then
reindicted on several of the insider trading charges. Id. In a motion to dismiss, the
defendant
argued that the jury’s acquittals had necessarily decided that he did
not possess material, nonpublic information * * * [and that,] because
reprosecution for insider trading would require the Government to
prove that critical fact, the issue-preclusion component of the Double
Jeopardy Clause barred a second trial of that issue and mandated
dismissal of all of the insider trading counts.
Id. On appeal, the Fifth Circuit Court of Appeals concluded that, by entering
acquittals on the fraud charges, the jury must have decided that the defendant did
not have any insider information. Id. at 116, quoting United States v. Yeager, 521
F.3d 367, 377 (5th Cir. 2008). The Fifth Circuit then
acknowledged that this factual determination would normally
preclude the Government from retrying petitioner * * *.
The * * * [Fifth Circuit] was nevertheless persuaded that a truly
rational jury, having concluded that petitioner did not have any insider
information, would have acquitted him on the insider trading counts.
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* * * Considering ‘the hung counts along with the acquittals,’ the
court found it impossible ‘to decide with any certainty what the jury
necessarily determined.’
Yeager, 557 U.S. 110, at 116, quoting Yeager, 521 F.3d 367, at 378. The United
States Supreme Court reversed the Fifth Circuit and held the following:
[T]he consideration of hung counts has no place in the issue-
preclusion analysis. * * * To identify what a jury necessarily
determined at trial, courts should scrutinize a jury’s decisions, not its
failures to decide. * * * Thus, if the possession of insider information
was a critical issue of ultimate fact in all of the charges against
petitioner, a jury verdict that necessarily decided that issue in his favor
protects him from prosecution for any charge for which that is an
essential element.
Id. at 123. Noting that the District Court and the Fifth Circuit disagreed about “what
the jury necessarily decided in its acquittals,” the United States Supreme Court
stated that the Fifth Circuit could “revisit its factual analysis in light of the
Government’s arguments * * *” about whether “the jury necessarily resolved * * *
an issue of ultimate fact” in the defendant’s favor. Id. at 125-126.
{¶40} Based on Yeager, Moore asserts that a “jury’s findings of fact made
during the first trial must be considered when determining whether double jeopardy
applies to a second trial” and argues that “[t]he record contains no facts about the
first prosecution because no hearing was held.” (Appellant’s Brief, 9). However,
in Yeager, the jury failed to reach a verdict on a number of charges and returned
general verdicts of acquittal on other charges. For this reason, the District Court
and the Fifth Circuit had to conduct a factual analysis to determine whether the
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acquittals necessarily resolved a critical issue of ultimate fact in favor of the
defendant that would bar a retrial of the charges on which the jury failed to reach a
verdict. Yeager, 557 U.S. 110, at 116, 125-126.
{¶41} However, after his trial in Erie County, the jury returned verdicts of
guilty on all of the charges against Moore. Moore, 2020-Ohio-6781, ¶ 20. Thus,
the jury did not arguably resolve any critical issues of ultimate fact in Moore’s favor.
Accordingly, no factual analysis of the kind in Yeager was necessary to determine
whether a jury finding in Moore’s favor triggered the issue-preclusive effects of the
Double Jeopardy Clauses with regard to the charges brought in Marion County. In
other words, since the jury did not return a general verdict of acquittal, the trial court
did not need to examine the double jeopardy implications of a jury’s general verdict
of acquittal. For these reasons, we conclude that Moore’s arguments based on
Yeager do not establish that the trial court erred by failing to hold an evidentiary
hearing.
{¶42} In summary, after examining the evidence in the record and the
arguments raised on appeal, we conclude that the trial court did not err in denying
Moore’s motion to dismiss on double jeopardy grounds. A judicial determination
that venue is improper does not trigger the double jeopardy clauses and does not,
therefore, bar a retrial of the charges in the proper venue. Smith, 599 U.S. 236, at
252-254. Accordingly, his sole assignment of error is overruled.
Conclusion
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{¶43} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Marion County Court of Common Pleas is
affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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