The opinion
[This opinion has been published in Ohio Official Reports at 79 Ohio St.3d 440.]
THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. LOVEJOY,
APPELLEE AND CROSS-APPELLANT.
[Cite as State v. Lovejoy, 1997-Ohio-371.]
Criminal law—Indictments—Several counts of multi-count indictment are not
interdependent—Inconsistency in verdict arises, when—Applicability of
double jeopardy and collateral estoppel.
1. The several counts of an indictment containing more than one count are not
interdependent and an inconsistency in a verdict does not arise out of
inconsistent responses to different counts, but only arises out of inconsistent
responses to the same count. (Browning v. State [1929], 120 Ohio St. 62,
165 N.E. 566; State v. Adams [1978], 53 Ohio St.2d 223, 7 O.O.3d 393,
374 N.E.2d 137, paragraph two of the syllabus, vacated on other grounds
[1978], 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103; State v. Brown [1984],
12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889; and State v. Hicks [1989],
43 Ohio St.3d 72, 538 N.E.2d 1030, approved and followed.)
2. When a jury finds a defendant not guilty as to some counts and is hung on other
counts, double jeopardy and collateral estoppel do not apply where the
inconsistency in the responses arises out of inconsistent responses to
different counts, not out of inconsistent responses to the same count.
(No. 96-686—Submitted April 16, 1997—Decided September 24 , 1997.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No.
95APA07-849.
___________________
{¶ 1} On August 16, 1993, Christa L. Curry and her husband, Nathan Curry,
were at their apartment, which they shared with Nathan’s brother, Neil Curry.
Christa and Nathan were planning to go to a softball game. Christa was upstairs
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getting ready, and Nathan was downstairs with their twin daughters. Christa heard
someone kicking on the back door. Nathan yelled upstairs and asked Christa if she
was making the noise. She told him that she was not. She heard Nathan say, “Hold
up a minute,” or “Wait a minute,” and then she heard two gunshots.
{¶ 2} As Christa came downstairs, she saw her husband fall to the floor. An
armed man approached her and stuck a gun in the side of her face and then in the
back of her head and forced her to lie down on the floor. The first armed man told
a second man to enter the apartment. As the second man proceeded upstairs to the
front bedroom, he tripped over Christa as she lay on the floor. Christa heard a loud
noise from upstairs. Shortly thereafter, the second man came downstairs, and both
men left the apartment and fled in a car.
{¶ 3} Both Nathan Curry (the victim) and Neil Curry were marijuana
dealers. At the time of the murder, the victim, Nathan Curry, had seven pounds of
marijuana in the apartment, while his brother, Neil, had four pounds of marijuana
in the apartment.
{¶ 4} Within twenty minutes of the first police dispatch, the police
apprehended the defendant-appellee and cross-appellant, Mark E. Lovejoy, and
Darrell Stepherson in the vicinity. Their car had been abandoned, and several
neighbors had reported seeing two young black men jumping fences and hiding in
the bushes around houses in the neighborhood. One neighbor saw the men discard
two guns under a bush. The guns were retrieved, and tests showed that one of those
guns was the murder weapon. When arrested, the appellee had in his possession a
black bag containing marijuana, which was later identified by Neil Curry as his four
pounds of marijuana that had been taken from Nathan Curry’s residence.
{¶ 5} A Franklin County Grand Jury indicted appellee on five counts
relating to the August 16, 1993 murder of Nathan Curry. The indictment included
charges of aggravated murder with prior calculation and design in violation of R.C.
2903.01(A), aggravated murder committed during the course of a felony, i.e., an
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aggravated robbery in violation of R.C. 2903.01(B), aggravated robbery in
violation of R.C. 2911.01, kidnapping in violation of R.C. 2905.01, and having a
weapon under a disability in violation of R.C. 2923.13(A)(2). The aggravated
murder with prior calculation and design and felony murder charges each included
two death penalty specifications. The first was that the appellee committed the
offense of aggravated murder for the purpose of escaping detection, apprehension,
trial, or punishment for another offense committed by the appellee, namely
aggravated robbery, in violation of R.C. 2929.04(A)(3). The second specification
was that the offense was committed while the appellee was fleeing immediately
after committing aggravated robbery and the appellee was either the principal
offender in the commission of the aggravated murder or, if not the principal
offender, committed the aggravated murder with prior calculation and design, in
violation of R.C. 2929.04(A)(7). Further, the charge of having a weapon while
under a disability contained a specification in accordance with R.C. 2941.143,
alleging that the appellee made an actual threat of physical harm to Christa Curry
with a deadly weapon. In addition, all charges contained a firearm specification in
accordance with R.C. 2941.141.
{¶ 6} On November 19, 1994, the first jury acquitted the appellee of
aggravated murder with prior calculation and design and its lesser included offenses
of murder and involuntary manslaughter. However, the jury was unable to reach a
verdict on the felony murder, aggravated robbery, or kidnapping charges.
Subsequently, the court declared a mistrial on those counts. The charge of carrying
a firearm while under disability was tried to the bench, and the court found the
appellee guilty but decided to postpone sentencing until the other three counts were
retried.
{¶ 7} After the trial court declared a mistrial, the appellee moved the trial
court to dismiss the felony murder charge on which the jury had hung and to enter
a judgment of acquittal on grounds of double jeopardy and collateral estoppel. The
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court denied the appellee’s motion. In a second trial, the state retried the appellee
on the remaining charges, including the felony murder charge based on the
aggravated robbery, and obtained convictions for each.
{¶ 8} The Franklin County Court of Appeals reversed the appellee’s felony
murder conviction, holding that the appellee’s acquittal of aggravated murder with
prior calculation and design and its lesser included offenses of murder and
involuntary manslaughter in his first trial barred his subsequent prosecution on the
felony murder charge. The appellate court based its conclusion on collateral
estoppel, determining that the jury had decided in the appellee’s favor in the first
trial either of the common issues of his identity as a participant in these crimes or
his purpose to kill. The appellate court also remanded the weapons under disability
charge for a retrial.
{¶ 9} The cause is now before this court pursuant to the allowance of a
discretionary appeal and cross-appeal.
__________________
Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Joyce S.
Anderson, Assistant Prosecuting Attorney, for appellant and cross-appellee.
Dennis C. Belli, for appellee and cross-appellant.
__________________
LUNDBERG STRATTON, J.
{¶ 10} The issue presented to us in this case is whether the doctrines of
double jeopardy and collateral estoppel apply when a jury finds a defendant not
guilty as to some counts and is hung as to other counts. We find that these doctrines
do not apply where the inconsistency in the responses arises out of inconsistent
responses to different counts, not out of inconsistent responses to the same count.
In such cases, we further find the prosecution is entitled to retry the hung-jury
counts provided that other criteria, such as sufficiency of the evidence, are met to
allow retrial.
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{¶ 11} A review of the purpose and history of double jeopardy and
collateral estoppel is useful in resolving this issue. Double jeopardy was
established by the Fifth Amendment to the Constitution of the United States, which
states: “No person shall * * * be subject for the same offence to be twice put in
jeopardy of life or limb * * *.” The Fifth Amendment has been made applicable to
the states through the Fourteenth Amendment.
{¶ 12} It is well established that the Double Jeopardy Clause protects
against successive prosecutions for the same offense. United States v. Dixon
(1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556, 567. It protects
a person who has been acquitted from having to run the gauntlet a second time.
Ashe v. Swenson (1970), 397 U.S. 436, 445-446, 90 S.Ct. 1189, 1195, 25 L.Ed. 2d
469, 476-477. As stated in Green v. United States (1957), 355 U.S. 184, 187-188,
78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204:
“The underlying idea [embodied in the Double Jeopardy Clause], one that
is deeply ingrained in at least the Anglo-American system of jurisprudence, is that
the State with all its resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state
of anxiety and insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.”
{¶ 13} In addition to its primary function of safeguarding against
governmental overreaching (see Justices of Boston Mun. Court v. Lydon [1984],
466 U.S. 294, 307, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 324), the double jeopardy
guarantee protects a defendant’s “‘valued right to have his trial completed by a
particular tribunal.’” Crist v. Bretz (1978), 437 U.S. 28, 36, 98 S.Ct. 2156, 2161,
57 L.Ed.2d 24, 31, quoting Wade v. Hunter (1949), 330 U.S. 684, 689, 69 S.Ct.
834, 837, 93 L.Ed. 974, 978. Once a tribunal has decided an issue of ultimate fact
in the defendant’s favor, the double jeopardy doctrine also precludes a second jury
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from ever considering that same or identical issue in a later trial. Dowling v. United
States (1990), 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717.
{¶ 14} Collateral estoppel is the doctrine that recognizes that a
determination of facts litigated between two parties in a proceeding is binding on
those parties in all future proceedings. Collateral estoppel “means simply that when
an issue of ultimate fact has once been determined by a valid and final judgment,
that issue cannot again be litigated between the same parties in any future lawsuit.
Although first developed in civil litigation, collateral estoppel has been an
established rule of federal criminal law at least since this Court’s decision more
than 50 years ago in United States v. Oppenheimer (1916), 242 U.S. 85 [37 S.Ct.
68, 61 L.Ed. 161].” Ashe, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at
475. Collateral estoppel generally refers to the acquittal prong of double jeopardy.
{¶ 15} However, the United States Supreme Court has held that double
jeopardy does not apply to cases involving inconsistent verdicts and, by
implication, hung juries. In Dunn v. United States (1932), 284 U.S. 390, 393, 52
S.Ct. 189, 190, 76 L.Ed. 356, 358-359, the United States Supreme Court found that
consistency in a verdict was not required and that where offenses were separately
charged in counts of a single indictment, even though the evidence was the same in
support of each, an acquittal on one count could not be pleaded as res judicata as
to the other. The court found that the sanctity of the jury verdict should be
preserved and could not be upset by speculation or inquiry into such matters to
resolve the inconsistency. The court stated: “‘The most that can be said in such
cases is that the verdict shows that either in the acquittal or the conviction the jury
did not speak their real conclusions, but that does not show that they were not
convinced of the defendant’s guilt. We interpret the acquittal as no more than their
assumption of a power which they had no right to exercise, but to which they were
disposed through lenity.’” Id., quoting Steckler v. United States (C.A.2, 1925), 7
F.2d 59, 60.
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{¶ 16} This principle of law was further affirmed in United States v. Powell
(1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461, where a defendant was charged
with using the telephone to facilitate crimes of conspiracy and drug possession,
crimes that were alleged in the indictment separately from the telephone solicitation
charge, a compound indictment. In that case, a jury found the defendant not guilty
of possession or conspiracy, but guilty of telephone solicitation to distribute
cocaine. Even though possession and conspiracy were predicate felonies, the
United States Supreme Court still held that the inconsistent verdicts could not be
overturned. The court refused to weaken the Dunn rule, finding that “a criminal
defendant already is afforded sufficient protection against jury irrationality or error
by the independent review of the sufficiency of the evidence undertaken by the trial
and appellate courts.” Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. The court
rejected attempts by the lower courts of appeals to carve out exceptions to the Dunn
case, and rejected defendant’s argument that the principles of res judicata or
collateral estoppel should apply to verdicts rendered by a single jury where the jury
acquitted the defendant of the predicate felony. The court held: “We believe that
the Dunn rule rests on a sound rationale that is independent of its theories of res
judicata, and that it therefore survives an attack based upon its presently erroneous
reliance on such theories.” Id. at 64, 105 S.Ct. at 476, 83 L.Ed.2d at 468.
{¶ 17} The court analyzed why inconsistent verdicts may work against the
government as well as the defendant, and thus should not be used to grant the
defendant a windfall when one cannot know the basis of the jury’s conclusions.
The court therefore decided that the jury verdicts must be accepted as they stand.
To do otherwise is too speculative. The court concluded: “We also reject, as
imprudent and unworkable, a rule that would allow criminal defendants to
challenge inconsistent verdicts on the ground that in their case the verdict was not
the product of lenity, but of some error that worked against them. Such an
individualized assessment of the reason for the inconsistency would be based either
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on pure speculation, or would require inquiries into the jury’s deliberations that
courts generally will not undertake. * * * But with few exceptions, * * * once the
jury has heard the evidence and the case has been submitted, the litigants must
accept the jury’s collective judgment. Courts have always resisted inquiring into a
jury’s thought processes * * *; through this deference the jury brings to the criminal
process, in addition to the collective judgment of the community, an element of
needed finality.” Id. at 66-67, 105 S.Ct. at 477-478, 83 L.Ed.2d at 469-470.
{¶ 18} The United States Supreme Court has applied the same principles to
hung juries. In Richardson v. United States (1984), 468 U.S. 317, 104 S.Ct. 3081,
82 L.Ed.2d 242, the court reiterated its determination that neither a jury’s failure to
reach a verdict nor a trial court’s declaration of a mistrial following a hung jury is
an event that terminates jeopardy so as to bar a second trial on the mistried charges.
Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court explained the logic
behind this conclusion as follows:
“‘The double-jeopardy provision of the Fifth Amendment, however, does
not mean that every time a defendant is put to trial before a competent tribunal he
is entitled to go free if the trial fails to end in a final judgment. Such a rule would
create an insuperable obstacle to the administration of justice in many cases in
which there is no semblance of the type of oppressive practices at which the double-
jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise
during a trial making its completion impossible, such as the failure of a jury to agree
on a verdict. In such event the purpose of law to protect society from those guilty
of crimes frequently would be frustrated by denying courts power to put the
defendant to trial again. * * * What has been said is enough to show that a
defendant’s valued right to have his trial completed by a particular tribunal must in
some instances be subordinated to the public’s interest in fair trials designed to end
in just judgments.’” Id., 468 U.S. at 324-325, 104 S.Ct. at 3085-3086, 82 L.Ed.2d
8
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at 250, quoting Wade v. Hunter (1949), 336 U.S. 684, 688-689, 69 S.Ct 834, 836-
837, 93 L.Ed. 974, 978.
{¶ 19} The Richardson court reasoned that double jeopardy does not bar
retrial on mistried counts unless there is some event that terminates the original
jeopardy. Id., 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court
specifically held that mistrial following a hung jury was not such an event.
{¶ 20} Having established that nothing in the federal Constitution bars a
retrial after a hung jury, we now turn our attention to our own pronouncements on
this issue. The issue of inconsistent verdicts in response to different counts was
addressed in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d
137, vacated on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103.
The court, in approving and following Browning v. State (1929), 120 Ohio St. 62,
165 N.E. 566, stated, at paragraph two of the syllabus:
“The several counts of an indictment containing more than one count are
not interdependent and an inconsistency in a verdict does not arise out of
inconsistent responses to different counts, but only arises out of inconsistent
responses to the same count. (Browning v. State, 120 Ohio St. 62 [165 N.E. 566],
approved and followed.)”
{¶ 21} That proposition was reaffirmed in State v. Brown (1984), 12 Ohio
St.3d 147, 12 OBR 186, 465 N.E.2d 889, and most recently approved and followed
in State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, 1037.
{¶ 22} In Brown, the defendant was indicted on three counts of rape, one
count of gross sexual imposition, one count of kidnapping, and one count of
robbery. The jury found the defendant not guilty by reason of insanity as to two
counts of rape and guilty as to the remaining counts in the indictment. Clearly that
fact pattern involved common issues to all counts. The defendant argued that the
jury could not consistently find the defendant sane as to some actions and insane as
to others.
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{¶ 23} Noting that the defendant did not contend that an inconsistency
existed within a single count, the court found that the testimony in the case was that
the defendant’s “borderline personality” could fade “in and out of sanity.” Id. at
149, 12 OBR at 188, 465 N.E.2d at 892. The court held that the finding that the
defendant was insane as to two of the rape charges but sane as to the remaining
charges did not require reversal of the convictions.
{¶ 24} Turning to the fact pattern involved in this case, this case clearly fits
within the parameters of Brown. The defense argues that because the defendant
was found not guilty of a lesser included offense in Count One, that finding is res
judicata or collateral estoppel as to Count Two. However, a basic understanding
of how a case is sent to the jury and how the counts are presented to the jury is key
to understanding why the Brown holding is still good law.
{¶ 25} The jury in this case was instructed that the case involved two
counts. Count One charged the appellee with aggravated murder with prior
calculation and design. Count Two charged the appellee with felony murder based
on aggravated robbery. The lesser included offenses tracked each separate count
and were not dependent on each other.
{¶ 26} In instructing the jury and reviewing the verdict forms on the track
involving Count One, aggravated murder with prior calculation and design, the
judge instructed the jury to first consider aggravated murder by prior calculation
and design.
{¶ 27} The court then instructed on the lesser included charge of murder to
Count One:
“If you find the State failed to prove the element of prior calculation and
design in the charge of aggravated murder, you may consider the lesser offense of
murder as to Count 1.” (Emphasis added.)
{¶ 28} The court later read the related verdict form to the jury as follows:
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“We the jury being duly impaneled upon our oaths and the law and evidence
in this case, and having found the defendant Mark E. Lovejoy not guilty of
aggravated murder as he is charged in Count 1 of the indictment, do further find the
defendant guilty of murder.”
{¶ 29} The court next instructed on the second lesser included charge to
Count One:
“If you find that the State failed to prove purpose beyond a reasonable doubt
that the defendant purposely caused the death of Nathan Curry, you must find the
defendant not guilty of aggravated murder and not guilty of murder as to Count 1.
You may then consider involuntary manslaughter.” (Emphasis added.)
{¶ 30} The court later read the related verdict form to the jury as follows:
“We the jury being duly impaneled and upon our oaths and law and
evidence in this case, and having found the defendant Mark E. Lovejoy not guilty
of aggravated murder, and not guilty of murder as he is charged in Count One of
the indictment, do further find the defendant guilty of involuntary manslaughter.”
{¶ 31} Count Two, felony murder based on the aggravated robbery, had a
similar track:
“The defendant is charged with aggravated murder in Count 2 of the
indictment. Before you can find the defendant guilty in Count 2, you must find
beyond a reasonable doubt that on or about the 16th day of August, 1993, in
Franklin County, Ohio the defendant purposely caused the death of Nathan Curry
while the defendant was committing or attempting to commit or fleeing
immediately after committing or attempting to commit aggravated robbery.”
{¶ 32} The jury was asked to consider lesser included offenses of murder
and involuntary manslaughter to the Count Two track, premised on aggravated
robbery. The jury instructions and verdict forms paralleled the format of Count
One.
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{¶ 33} The jury, in closing arguments, jury instructions and verdict forms,
was advised that it had two tracks to consider, Count One, premised on aggravated
murder with prior calculation and design and the two lesser included offenses based
on Count One, and Count Two, felony murder while committing an aggravated
robbery with its two lesser included offenses.
{¶ 34} The lesser included offenses merely flowed from the original. The
jury was not charged with only one set of lesser included offenses that could apply
to either aggravated murder with prior calculation and design or felony murder
based on the robbery. They were given two different sets of lesser included offense
verdict forms. To find that collateral estoppel applies because the wording of the
lesser included offenses of “murder” was the same in each count is to ignore the
simple realities of the way the case went to the jury.
{¶ 35} Once the jury decided that prior calculation and design was not
proven by the state, it could be considered logical for the jury to acquit the
defendant of all charges in the track of Count One as the flow of the verdict forms
guided them in that direction. The jury consistently hung on all charged offenses
in the track of Count Two, which involved the issue of robbery and its lesser
included offenses. However, speculation as to why the jury failed to reach a verdict
on the felony murder count only demonstrates the difficulty with trying to analyze
a jury’s decision. The Dunn court’s pronouncement that it is best to just “accept
the jury’s collective judgment” so as to preserve the sanctity of the jury process is
still sound public policy. Powell, 469 U.S. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at
470.
{¶ 36} This fact pattern is clearly distinguishable from State v. Liberatore
(1983), 4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116. In Liberatore, the victim
was killed by a bomb placed in the car next to his, which was detonated by remote
control. The defendant was charged with aggravated arson and aggravated murder
with the aggravated arson as the predicate felony. The jury acquitted the defendant
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of aggravated arson and hung on the aggravated murder charge. The court found
that since aggravated arson was the predicate crime for the aggravated murder, a
judgment of acquittal on the aggravated arson foreclosed retrial of the defendant on
aggravated murder. Id. at 15, 4 OBR at 13, 445 N.E.2d at 1118.1
{¶ 37} In this case, had the jury acquitted the appellee of the robbery, and
hung on Count Two, felony murder based on the aggravated robbery (an
inconsistent verdict within a count), Liberatore would clearly apply and double
jeopardy would attach. Robbery was the underlying predicate for Count Two.2
However, Liberatore did not have two distinct tracks as in this case. Murder, as a
lesser included offense of each count, is not the same as a predicate felony for an
aggravated murder conviction. Thus, there is no need to reach the issues raised in
Liberatore because Liberatore involved inconsistencies within the same count, an
entirely different issue from that involved in this fact pattern.
{¶ 38} In conclusion, we see no reason to distinguish the fact pattern in this
case from that in Brown. Browning, Adams, Brown, and Hicks remain good law
and resolve the issues in this case. Therefore, we hold that when a jury finds a
defendant not guilty as to some counts and is hung on other counts, double jeopardy
and collateral estoppel do not apply where the inconsistency in the responses arises
out of inconsistent responses to different counts, not out of inconsistent responses
to the same count.
CROSS-APPEAL
{¶ 39} The appellate court held that the appellee had to be retried on the
charge of having a weapon under disability because it was error for the trial court
1. Justice Holmes dissented, arguing that since the defendant was not accused of placing the bomb
himself, but rather was accused of being part of the organized crime murder scheme, the jury could
have found the defendant not guilty of aggravated arson, but still guilty of being part of the
conspiracy that directed the murder. Id. at 15-16, 4 OBR at 13-14, 445 N.E.2d at 1118-1119.
2. The Liberatore decision is, however, contrary to the United States Supreme Court’s holding in
Dunn, which did not reverse a conviction even though the defendant was found not guilty of the
predicate offense.
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to reopen the evidence sua sponte after closing arguments and take judicial notice
of prior proceedings in an earlier case to supply a crucial fact that the state had
failed to prove. The state did not appeal the appellate court’s ruling on the judicial
notice issue. However, the appellate court further found that in light of its
resolution of the appellee’s first two assignments of error, the appellee’s third
assignment of error which challenged the sufficiency of the evidence was moot and
remanded the case to the trial court for a retrial on that charge. The appellee
challenges that remand and argues that once the erroneous evidence was omitted,
the court of appeals was obligated to review the remaining evidence and pass on its
sufficiency.
{¶ 40} App.R. 12(A)(1) provides:
“On an undismissed appeal from a trial court, a court of appeals shall do all
of the following:
“* * *
“(c) Unless an assignment of error is made moot by a ruling on another
assignment of error, decide each assignment of error and give reasons in writing for
its decision.”
{¶ 41} Because the appellate court ruled on the judicial notice issue as it
did, the issue of the sufficiency of the evidence was not moot. In fact, the
sufficiency of the remaining evidence then became the key issue. To simply remand
the weapon under disability charge for a retrial would give the state a “second bite
at the apple” and a chance to present evidence it failed to offer at the first trial.
After determining that the evidence of the conviction was erroneously considered
by the trial judge, the appellate court should have reviewed the remaining evidence
to determine whether it was sufficient to support a conviction.
{¶ 42} While the court of appeals found that the assignment of error
regarding sufficiency of the evidence was moot, we find that the court did in fact
pass on this issue when it stated at page 18 of the opinion, “If the court had not
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taken judicial notice of this critical fact, the documents offered by the state were
insufficient to prove that appellant was under a disability.” Therefore, because that
assignment of error was resolved, the decision to remand was improper. In this
case, the Double Jeopardy Clause applies. In fact, this is what the Double Jeopardy
Clause was intended to prevent. If the state fails to present sufficient evidence to
prove every element of the crime, it should not get a second opportunity to do that
which it failed to do the first time. Therefore, the charge of having a weapon while
under disability is dismissed.
{¶ 43} Accordingly, we reverse the judgment of the court of appeals and
reinstate the judgment of the trial court as to the felony murder, aggravated robbery,
and kidnapping convictions. Further, we dismiss the charge of having a weapon
under disability.
Judgment reversed
and cause dismissed in part.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
MOYER, C.J., PFEIFER and COOK, JJ., dissent.
___________________
COOK, J., dissenting.
{¶ 44} Because I believe that the Double Jeopardy Clause should have
barred Lovejoy’s retrial for felony murder, I respectfully dissent.
{¶ 45} Unlike the defendants in the cases cited by the majority to support
its position, Lovejoy did not seek to overturn a conviction on the grounds that the
jury reached an inconsistent acquittal verdict in the same trial. Instead, Lovejoy
asserted that double jeopardy barred a second trial before a second jury after his
acquittal on a lesser included offense of the mistried count.
{¶ 46} The cases cited by the majority demonstrate that the Double
Jeopardy Clause is aimed at protecting defendants against multiple prosecutions for
the same offense and safeguards a defendant’s valued right to have his trial
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completed by a particular tribunal. Yet the majority concludes that cases involving
inconsistent jury verdicts reached in a single trial control this case.
{¶ 47} The majority is undoubtedly correct that the several counts of an
indictment are not interdependent and follow different tracks during the course of
a trial. Both this court and the United States Supreme Court consistently have
reached that conclusion. See, e.g., Dunn v. United States (1932), 284 U.S. 390, 52
S.Ct. 189, 76 L.Ed. 356; Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566.
That line of authority, however, does not answer the question presented here (i.e.,
whether Lovejoy’s acquittal on the charge of murder prevents his retrial for felony
murder — a count on which the first jury hung).3 Enforcement of inconsistent
verdicts in a single trial does not implicate the constitutional concerns present
where the state obtains a conviction following successive prosecutions. See Nesbitt
v. Hopkins (C.A.8, 1996), 86 F.3d 118, 121.
{¶ 48} Similarly, the issue presented in this case is not resolved by
Richardson v. United States (1984), 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242.
Richardson did not involve an analysis of whether a jury verdict of acquittal that
accompanies the declaration of a mistrial after jury deadlock on a related count may
bar reprosecution under the Double Jeopardy Clause of the United States
Constitution. The Richardson court simply resolved that judicial declaration of a
mistrial in response to a jury’s failure to reach a verdict is not an event that, by
itself, terminates jeopardy so as to trigger the protections embodied in the Double
Jeopardy Clause. Id. at 326, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. In so holding,
however, the Richardson court acknowledged that events such as an acquittal, or
3. In reaffirming the Dunn rule, the Supreme Court specifically noted that Dunn’s statements
regarding res judicata, if not incorrect at the time, are no longer acceptable in light of more recent
cases analyzing collateral estoppel. United States v. Powell (1984), 469 U.S. 57, 64, 105 S.Ct. 471,
476, 83 L.Ed.2d 461, 468. Nonetheless, the Powell court found the Dunn rule rests on sound
rationale independent of its erroneous reliance on theories of res judicata. Accordingly, the Dunn
rule is of limited value where, as here, multiple prosecutions invoke double jeopardy concerns not
present in the Dunn scenario of inconsistent verdicts.
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January Term, 1997
an appellate court’s finding of insufficient evidence to convict, act to terminate
jeopardy. Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251.
{¶ 49} Having explained why the cases cited by the majority do not
mandate its conclusion, I next consider the arguments and authority presented by
the parties. Additionally, because of the nature of this case, it is necessary to expand
our constitutional analysis to include not only the protections embodied in the
collateral estoppel (issue preclusion) prong of the Double Jeopardy Clause, but the
concomitant protections present in its “same-offense” preclusion prong, as
determined under the test enunciated in Blockburger v. United States (1932), 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. Compare State v. Broughton
(1991), 62 Ohio St.3d 253, 581 N.E.2d 541.
Applicability of Collateral Estoppel
{¶ 50} The state’s preliminary argument for reversal of the appellate court’s
decision focuses on dicta found in the United States Supreme Court’s opinion in
Ohio v. Johnson (1984), 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425,
434, fn. 9, implying that the protections implicit in the doctrine of collateral
estoppel are applicable only where the state prosecutes factually linked charges
seriatim. The state argues that the court’s statement in Johnson supports the
distinction between cases of government overreaching—where a defendant is
purposefully subjected to successive prosecutions that allegedly arise out of the
same facts—and retrial of a defendant on grounds of manifest necessity occasioned
by a jury’s inability to arrive at a verdict. The state concedes that the doctrine of
collateral estoppel is applicable to prevent the former scenario, but argues that the
doctrine is inapplicable to the latter, as the concerns underlying the collateral
estoppel doctrine are not present.
{¶ 51} Lovejoy relies on this court’s decision in State v. Liberatore (1983),
4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116, and federal circuit court authority to
demonstrate that the state’s interpretation of the Johnson footnote is erroneous.
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{¶ 52} While, at first blush, the Johnson footnote appears to be directed to
the situation presented in this case, closer analysis reveals that it is not. The
Johnson court reviewed a case where a criminal defendant entered guilty pleas to
lesser included offenses of the crimes charged, which the court accepted over the
state’s objection. The defendant then attempted to use his convictions on the guilty
pleas as a sword to strike down the state’s attempt to prosecute him on the other
crimes for which he was indicted.
{¶ 53} Johnson involved prosecution following conviction without trial. In
contrast, the state subjected Lovejoy to two trials—an initial trial and a later trial
on the counts on which the first jury had been unable to agree on a verdict. In a
literal sense, trial after a hung jury mistrial represents reprosecution of the
defendant—seriatim prosecution. Jeffers v. United States (1977), 432 U.S. 137,
152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168, 181. Accordingly, the collateral estoppel
branch of the double jeopardy doctrine, which relates solely to prosecutions
following an acquittal verdict, while wholly inapplicable to the Johnson facts,
remains potentially applicable in the present case.
{¶ 54} In Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d
469, the court recognized that the Double Jeopardy Clause incorporates the doctrine
of collateral estoppel. In defining the rule of collateral estoppel, the Ashe court
stated: “[W]hen an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the same parties in any
future lawsuit.” Id. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. As a component
of the Double Jeopardy Clause, collateral estoppel “protects a man who has been
acquitted from having to ‘run the gantlet’ a second time.” Id. at 445-446, 90 S.Ct.
at 1195, 25 L.Ed.2d at 476-477. The rule dictates that once a tribunal has decided
an issue of ultimate fact in the defendant’s favor, a second jury may not reach a
directly contrary conclusion in a later trial. Dowling v. United States (1990), 493
U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717.
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January Term, 1997
{¶ 55} Courts analyzing the issue presently under consideration have
consistently held collateral estoppel applicable as a mandate of the federal
Constitution’s Double Jeopardy Clause. See, e.g., United States v. Shenberg
(C.A.11, 1996), 89 F.3d 1461, 1479; United States v. McLaurin (C.A.9, 1995), 57
F.3d 823, 826; United States v. Bailin (C.A.7, 1992), 977 F.2d 270, 275-276; United
States v. Frazier (C.A.6, 1989), 880 F.2d 878, 883; State v. Crate (1996), 141 N.H.
489, 686 A.2d 318; Ferrell v. State (1990), 318 Md. 235, 248-256, 567 A.2d 937,
944-948. In reaching that conclusion, those courts have recognized that
“‘[a]llowing a second jury to reconsider the very issue upon which the defendant
has prevailed serves no valuable function. To the contrary, it implicates concerns
about the injustice of exposing a defendant to repeated risks of conviction for the
same conduct, and to the ordeal of multiple trials, that lie at the heart of the double
jeopardy clause.’” Bailin, supra, at 277, quoting United States v. Mespoulede
(C.A.2, 1979), 597 F.2d 329, 336-337. I would approve Liberatore, supra, as this
court’s acknowledgment that the doctrine of collateral estoppel is applicable to bar
retrial of mistried counts in criminal cases involving partial verdicts of acquittal.4
Defendant’s Burden of Establishing a Factual Predicate
{¶ 56} A determination that the doctrine of collateral estoppel is potentially
applicable to bar retrial of mistried counts, however, does not end the inquiry.
Instead, it is proper next to review the appellate court’s decision to determine
4. The majority’s attempt to distinguish State v. Liberatore (1983), 4 Ohio St.3d 13, 4 OBR 11, 445
N.E.2d 1116, fails. Liberatore was, in fact, indicted on separate counts of aggravated arson and
aggravated murder. Aggravated arson served as the predicate felony for the aggravated murder
charge. Nevertheless, both statutory offenses were charged as separate counts in the indictment.
This was also the case in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137,
where the court allowed conviction of the compound offense to stand despite acquittal in the same
trial on a separate count containing its predicate offense.
Moreover, federal authority does not support the majority’s distinction. In United States
v. Powell (1984), 469 U.S. 57, 67-68, 105 S.Ct. 471, 478, 83 L.Ed.2d 461, 470, the court declined
to carve out an exception to the Dunn rule where “the jury acquits a defendant of a predicate felony,
but convicts on the compound felony.”
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SUPREME COURT OF OHIO
whether it correctly concluded that the bar attaches in this case. In making that
determination, a court must “‘examine the record of the prior proceeding, taking
into account the pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from consideration.’” Ashe, 397
U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-476, quoting Mayers &
Yarborough, Bis Vexari: New Trials and Successive Prosecutions (1960), 74
Harv.L.Rev. 1, 38-39. It is the defendant’s burden “to demonstrate that the issue
whose relitigation he seeks to foreclose was actually decided in the first
proceeding.” Dowling v. United States (1990), 493 U.S. 342, 350, 110 S.Ct. 668,
673, 107 L.Ed.2d 708, 719. The court has termed this burden a “factual predicate
for the application of the doctrine.” Schiro v. Farley (1994), 510 U.S. 222, 232,
114 S.Ct. 783, 790, 127 L.Ed.2d 47, 58.
{¶ 57} Upon review of the record, I am unconvinced that Lovejoy carried
his burden of establishing the factual predicate. The court of appeals determined
that the jury’s verdict acquitting Lovejoy of murder was grounded on either of two
conclusions—(1) that Lovejoy was not a participant in the crime, or (2) that
Lovejoy did not act with purpose in causing Curry’s death (the element of purpose
is common to murder and felony-murder aggravated murder). Review of the
evidence at trial, the charge to the jury, and Ohio law, however, does not compel
that conclusion.
{¶ 58} The state’s evidence did not implicate Lovejoy as the principal
offender in Curry’s murder. Instead, the state sought to impose criminal
responsibility on Lovejoy as an aider and abettor. The state tried the defendant on
two separate counts of aggravated murder. The first count charged that Lovejoy
purposely caused Curry’s death with prior calculation and design. In connection
with the first count, the court also charged the jury on lesser included offenses of
murder and involuntary manslaughter. The second count charged Lovejoy with
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January Term, 1997
aggravated murder for purposely causing Curry’s death in connection with the
commission of a felony. Under the second count, the court instructed the jury on
lesser included offenses of murder and involuntary manslaughter, as it had done in
connection with count one.
{¶ 59} In attempting to prove that Lovejoy intended Curry’s death, the state
relied heavily on Lovejoy’s participation in the aggravated robbery. According to
the state, Lovejoy’s motive to kill Curry resulted from commission of the robbery—
to avoid retribution. Moreover, the bulk of the state’s evidence on the prior-
calculation-and-design murder charge relied on inferences from the manner in
which the robbery was allegedly committed. The state produced scant evidence
apart from Lovejoy’s alleged participation in the robbery that would have
demonstrated that Lovejoy and Stepherson (the principal offender in the murder)
devised a plan to kill Curry.
{¶ 60} The court charged the jury as follows:
“When a person has engaged in a common design with another to commit
aggravated robbery by force or violence or in a manner likely to produce death, it
may be inferred that such person intended to cause the death of any other person
who is killed during the commission of the offense. That inference, however, is not
conclusive, but it may be considered in determining intent.”
{¶ 61} The jury charge is a correct statement of Ohio law. R.C. 2903.01(D);
State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph one of the
syllabus. For the inference to be made, however, the jury was first required to
determine that Lovejoy engaged in a common design with an accomplice to commit
the robbery. Because the jury was unable to agree on a verdict as to count two and
its lesser included offenses and count three (the aggravated robbery charge itself),
it is plausible that the jury considered itself restrained from considering evidence
related to the robbery in connection with count one.
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{¶ 62} Without the benefit of inferences drawn from commission of the
robbery, the jury was left with the scantiest of evidence upon which to base
Lovejoy’s purpose. This may be why the jury returned acquittal verdicts on all of
the charges related to the prior-calculation-and-design count—because, aside from
proof of the robbery, which was an element of the felony-murder charge, there was
little independent evidence upon which a jury could ground a finding of purpose to
kill. Given this scenario, the jury’s acquittal on the charges related to the prior-
calculation-and-design murder count does not equal a decision favorable to
Lovejoy on the issues of purpose or identity regarding the felony-murder charge.
{¶ 63} Finally, considering the court’s instructions, the jury determinations
do not clearly establish a finding in Lovejoy’s favor on the issue of purpose or
identity. Instead they reveal only inconsistency.
{¶ 64} Regarding the felony-murder count, the jury was charged, “If you
find that the State failed to prove beyond a reasonable doubt that the defendant
purposely caused the death of Nathan Curry, you will find the defendant not guilty
of aggravated murder and not guilty of murder * * *.” The court also generally
charged the jury, “If you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crime, you must find the defendant
not guilty.” Here, if we were to assume the jury unanimously determined the issue
of identity or purpose to kill in Lovejoy’s favor in connection with his acquittal of
murder at the first trial, the jury would have also been required to enter an acquittal
on the felony-murder charge and its lesser included offense of murder. Compare
United States v. Aguilar-Aranceta (C.A.1, 1992), 957 F.2d 18. Instead, the jury
failed to agree on any verdict regarding count two.
{¶ 65} In sum, the jury verdict did not necessarily depend on a finding that
Lovejoy was not a participant in the crime or that Lovejoy lacked purpose to cause
Curry’s death. Accordingly, I would conclude that Lovejoy has not carried his
burden of establishing a finding in his favor on either issue.
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January Term, 1997
Acquittal on “Same Offense” as an Act Terminating Jeopardy
{¶ 66} One final issue requires analysis—should Lovejoy’s acquittal of
murder in connection with count one (prior-calculation-and-design murder) bar a
second trial after a hung jury mistrial on count two (felony-murder) under the
Blockburger test? In Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at
309, the court stated that “where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two or only one, is whether each provision requires proof of a fact which the
other does not.”
{¶ 67} Other courts, relying on Richardson, have reasoned that jeopardy
continues on any count resulting in a hung jury mistrial and a defendant’s only
protection against a second trial resides in the collateral estoppel doctrine.5 It is my
5. Demonstrative of this trend is the Seventh Circuit Court of Appeals’ decision in United States v.
Bailin (C.A.7, 1992), 977 F.2d 270, 275-276, which has been either expressly adopted or cited with
approval by many state and federal courts. See, e.g., United States v. Shenberg (C.A.11, 1996), 89
F.3d 1461, 1479.
The Bailin court cited Richardson for the proposition that the defendant therein remained
in continuing jeopardy regarding counts for which a jury was unable to reach a verdict, resulting in
the court’s declaration of a mistrial. Despite finding continuing jeopardy, the Bailin court held that
collateral estoppel was applicable, apparently analyzing collateral estoppel as a concept independent
of jeopardy concerns.
In Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the court held
that collateral estoppel is embodied in the Fifth Amendment’s guarantee against double jeopardy
and, therefore, is applicable to the states through the Fourteenth Amendment. Id. at 445, 90 S.Ct. at
1195, 25 L.Ed.2d at 476. As a matter of federal constitutional law, collateral estoppel is derivative
of the Double Jeopardy Clause, and therefore its protections should attach only after jeopardy has
terminated. I find no authority in Supreme Court precedent that would impose concepts of collateral
estoppel embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution upon the states outside of that clause’s application.
The Bailin court reasoned that “collateral estoppel is applicable in criminal cases only when
double jeopardy is not.” (Emphasis sic.) It supports this statement by postulating that if collateral
estoppel were to operate only in the double jeopardy sphere, Ashe would be overruled and collateral
estoppel would become a nullity. Bailin, supra, 977 F.2d at 275.
I believe an acquittal terminates jeopardy not only on the count for which the defendant
received an acquittal verdict, but also as to separate offenses that share common issues of ultimate
fact necessarily determined in a defendant’s favor as subsumed in an acquittal verdict, as determined
under the Ashe test. Ashe embodies the Supreme Court’s recognition that, for purposes of double
jeopardy, there is no constitutional distinction between reprosecuting a criminal defendant on the
same count for which he received an acquittal verdict and reprosecuting a criminal defendant on a
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belief that this conclusion results from a reading of Richardson that is unduly
formalistic, resulting in a strained attempt by courts to reason that collateral
estoppel applies outside of jeopardy concepts.
{¶ 68} As a prerequisite to application of the double jeopardy doctrine,
Richardson requires only the occurrence of “some event” terminating the original
jeopardy. Richardson, 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The
Richardson court referred to an acquittal as being such an event, but never stated
whether an acquittal on one count may terminate jeopardy as to another.
{¶ 69} In Price v. Georgia (1970), 398 U.S. 323, 329, 90 S.Ct. 1757, 1761,
26 L.Ed.2d 300, 305, the court recognized an implied acquittal (where a jury returns
a conviction on a lesser included offense when given a choice between a lesser and
greater offense) as an event that terminates jeopardy. Conceptually, a jury’s silence
regarding a greater offense in the implied-acquittal context is different from a
court’s declaration of a mistrial for the jury’s inability to reach a verdict. In the
implied-acquittal scenario, we may assume that the jury considered and rejected
conviction of the greater offense. In the hung-jury-mistrial scenario, that inference
is foreclosed. Nevertheless, the Price court’s recognition of an implied acquittal as
an event that terminates jeopardy argues against an overly formalistic reading of
Richardson, by demonstrating that an acquittal on one charge may terminate
jeopardy as to another.
{¶ 70} The Richardson court, citing Burks v. United States (1978), 437 U.S.
1, 98 S.Ct. 2141, 57 L.Ed.2d 1, also recognized that a judicial declaration of
separate offense involving a common issue of ultimate fact that was decided in the defendant’s favor
at an earlier trial. Ashe, 397 U.S. at 446, 90 S.Ct. at 1196, 25 L.Ed.2d at 477.
“[A]n acquittal ‘represents a resolution, correct or not, of some or all of the factual elements
of the offense charged.’ (Emphasis added.)” Justices of Boston Mun. Court v. Lydon (1984), 466
U.S. 294, 309, 104 S.Ct. 1805, 1814, 80 L.Ed.2d 311, 325, quoting United States v. Martin Linen
Supply Co. (1977), 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642, 651. The guarantee
against double jeopardy extends to protect “the accused from attempts to relitigate the facts
underlying a prior acquittal.” Brown v. Ohio (1977), 432 U.S. 161, 165-166, 97 S.Ct. 2221, 2225,
53 L.Ed.2d 187, 194.
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January Term, 1997
insufficient evidence to convict is an event that terminates jeopardy. Richardson,
468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The Burks court held that
an unreversed appellate ruling that the government had failed to introduce sufficient
evidence at a first trial terminated the defendant’s jeopardy, because that ruling
constituted a decision that the government had failed to prove its case. Burks, 437
U.S. at 10-11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9.
{¶ 71} In determining whether jeopardy terminates after a trial resulting in
a partial verdict and a hung jury mistrial, a rigid, mechanistic rule that the defendant
always remains in continuing jeopardy regarding those counts for which the court
declared a mistrial is inappropriate. See Illinois v. Somerville (1973), 410 U.S. 458,
467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 432. Instead, an acquittal verdict should
terminate jeopardy not only as to the charge for which it is returned, but also as to
any charge that would require the state to prove the acquitted charge as a
subcomponent. The acquittal demonstrates a resolution, correct or not, that the
state has failed to prove the elements of that offense after one full and fair
opportunity to do so. To that decision, the Double Jeopardy Clause affords finality.
Dowling, supra, 493 U.S. at 355, 110 S.Ct. at 676, 107 L.Ed.2d at 722 (Brennan,
J., dissenting); Fong Foo v. United States (1962), 369 U.S. 141, 143, 82 S.Ct. 671,
672, 7 L.Ed.2d 629, 631.
{¶ 72} It would be repugnant to the principles of double jeopardy to subject
a defendant to a second trial on a compound offense that required him to defend
against that same charge (as a subcomponent of a compound offense) for which he
formerly received a verdict of acquittal (e.g., felony-murder trial after acquittal of
the underlying felony). The same concern arises where a defendant is retried on a
greater offense after a hung jury mistrial, where the original jury acquitted the
defendant of a lesser included offense (e.g., prior-calculation-and-design murder
trial after acquittal of murder). In contrast, where a jury acquits on a compound
offense but is hung on the predicate offense, the same concerns are not present on
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SUPREME COURT OF OHIO
the retrial of the predicate offense—the state will not again seek to prove that the
defendant committed an offense upon which he was formerly acquitted (e.g., hung
jury on the underlying felony and acquittal of felony-murder aggravated murder).
The same is true where a defendant is retried on a lesser included offense after a
hung jury mistrial, where a jury formerly acquitted the defendant of the greater
offense (e.g., hung jury on murder and acquittal of prior-calculation-and-design
aggravated murder).
{¶ 73} In this case the jury acquitted Lovejoy of murder under R.C. 2903.02
in connection with count one. As stated in the Legislative Service Commission’s
comment to R.C. 2903.02, “the offense can be a lesser included offense to both
forms of aggravated murder.” In fact, in this case, the court gave an identical charge
of murder as a lesser included offense under both counts. Both counts involved the
same victim, the same conduct, and the same proof. There is no legal basis under
which the murder charges under counts one and two may be distinguished.
{¶ 74} Because, at the second trial, to gain a conviction on the felony-
murder charge the state was required to prove every element of the formerly
acquitted murder charge, the Double Jeopardy Clause prohibited Lovejoy’s retrial
for aggravated murder. The prior acquittal terminated Lovejoy’s jeopardy on the
mistried aggravated murder charge, and Blockburger may be applied to bar the
second trial.
Issue on Cross-Appeal
{¶ 75} Consistent with Lockhart v. Nelson (1988), 488 U.S. 33, 109 S.Ct.
285, 102 L.Ed.2d 265, the appellate court’s ruling that the trial court erred in taking
judicial notice of Lovejoy’s prior conviction does not bar Lovejoy’s retrial on the
charge of having a weapon while under a disability, despite any claim that, absent
judicial notice, the state’s evidence was insufficient to support a conviction.
{¶ 76} The test announced in Lockhart looks to all the evidence actually
admitted to determine sufficiency for purposes of the double jeopardy doctrine. Id.
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January Term, 1997
at 40, 109 S.Ct. at 290-291, 102 L.Ed.2d at 273. That the court admitted evidence
erroneously goes only to ordinary issues of trial error and has fundamentally
different implications from a reversal based on evidentiary insufficiency. Trial
error does not imply guilt or innocence of the defendant, but is a determination that
the defendant has been convicted through a defective process. Id. Accordingly, the
appellate court acted correctly in remanding the case for a new trial after
determining that the trial court erred in its use of judicial notice.
Conclusion
{¶ 77} In accordance with the above analysis, I would affirm the judgment
of the appellate court.
MOYER, C.J., and PFEIFER, J., concur in the foregoing dissenting opinion.
___________________
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