State v. Moore , 2012 Ohio 2935 ( 2012 )

[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