[Cite as State v. Stargell,
2021-Ohio-2057.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 28928
:
v. : Trial Court Case No. 2019-CR-2827
:
ROBERT STARGELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 18th day of June, 2021.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
Attorney for Defendant-Appellee
.............
WELBAUM, J.
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{¶ 1} Plaintiff-Appellant the State of Ohio appeals from a trial court order granting
Defendant-Appellee Robert Stargell’s motion to modify the jury’s verdict in his criminal
trial. According to the State, the trial court abused its discretion and erred in applying
Crim.R. 33(A)(4) when it modified the jury’s verdict from a conviction for felonious assault
to a conviction for assault. We agree.
{¶ 2} However, we conclude that the State is not entitled to pursue a discretionary
appeal under R.C. 2945.67(A), and that our prior allowance of the State’s appeal,
therefore, was improvidently granted. Specifically, the order modifying the verdict was a
final verdict from which the State may not appeal. Accordingly, the appeal will be
dismissed, and our prior decision giving the State leave to appeal will be vacated.
I. Facts and Course of Proceedings
{¶ 3} On September 19, 2019, an indictment was filed charging Stargell with the
following offenses: one count of felonious assault (deadly weapon), a second-degree
felony; one count of recklessly discharging a firearm on or near prohibited premises
(serious physical harm), a third-degree felony; one count of having weapons under
disability (prior drug conviction), a third-degree felony; one count of having weapons
under disability (prior offense of violence), a third-degree felony; and one count of
violation of a protection order, a first-degree misdemeanor. The felonious assault and
reckless discharge of a firearm counts also included firearm specifications.
{¶ 4} The charges arose from an incident that occurred on August 23, 2019, on
Gramont Avenue in Dayton, Ohio. Previously, in June 2019, Stargell and Jerita Pooler
had ended their romantic relationship. About two months later, Jerita began dating
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Robert West. At the time of the incident, Jerita, West, and Jerita’s son, C.H., were
staying at the home of Jerita’s stepmother, Irmela Pooler. Transcript of Proceedings
(Jury Trial) (“Tr.”), p. 33-35 and 116-117.
{¶ 5} After getting off work on August 23, 2019, Jerita was sitting outside with
Irmela, C.H., and West. At that time, Jerita saw a Facebook video that concerned her.
Stargell had posted the video and had called Jerita and West “bitches,” “clowns,” and
other names. Id. at p. 39-40. Subsequently, around 5:00 or 6:00 p.m., Stargell drove
by the house but did not stop. Id. at p. 54-55.
{¶ 6} Later in the evening, Jerita was sitting outside in her car, which was parked
in the driveway. It was dark outside. Jerita was sitting in the driver’s seat, West was in
the front passenger seat, and C.H. was in the back seat. Id. at p. 45, 46, 55-56, 60, and
71. At that time, Stargell approached in a different car, and someone else was driving.
When the car pulled up, Stargell had a mask over his face and pointed a gun at Jerita. It
looked like a white gun with a red light, like a laser light, but she did not see the handle.
Id. at p. 45, 56, and 59.
{¶ 7} The laser was pointed at Jerita, and she heard Stargell say, “No, not her.”
The car pulled down a little bit, to where West was sitting, and the laser was pointed at
West. Tr. at p. 58 and 60. The car then pulled further down the street. At that point,
Jerita got out of her car. West also got out of the car, to try and calm Jerita down. Id.
at p. 61. However, the keys were still in Jerita’s car, and C.H. took off in the car, following
the car in which Stargell was riding. Id. at p. 61.
{¶ 8} Jerita stood outside at first, and then ran into the house, shouting for her
stepmother to call the police. Id. at p. 61-62. Both Jerita and Irmela called 911. Id.
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Five or ten minutes later, C.H. returned and parked the car at a 45-degree angle in front
of the driveway. Id. at p. 47, 63, and 89. Two shots were then heard being fired in the
alley behind the house, but no one saw who fired the shots. Id. at p. 48-50, 67, 91, 92,
104, 105, and 122.
{¶ 9} At this point, Jerita was outside, standing in the grass by the front door, and
West was by Jerita’s car. Stargell emerged on foot from the alley, looked at Jerita, and
said, “I oughta shoot you, bitch.” Id. at p. 47, 65, and 92. He then said, “Where that
n****r at?” Id. at p. 65 and 91-92. Jerita told Stargell that he was “over there,” and
Stargell began chasing West around Jerita’s car. Id.
{¶ 10} When the chase began, West was at the driver’s door of the car. The
sunroof and all the car windows were down. Stargell walked up to the passenger side
of the car, with his gun cocked, and said, “Bitch, didn’t I tell you I was going to kill you.”
Tr. at p. 93-94. West ducked, and Stargell shot at him through the passenger window.
Id. at p. 95. According to both West and Jerita, C.H. was across the street videoing
everything when this happened. West insisted that the video showed the shooting. Id.
at p. 51, 65, 77, 95, 102, and 106. However, the video did not show any shooting. Id.
at p. 106-109. West was also unable to identify the color of the gun, although Jerita
testified that it was the same white gun she saw Stargell with earlier. Id. at p. 69 and
102.
{¶ 11} According to Jerita and West, after the first shot, Stargell chased West
around the car several times. During this process, the gun jammed, and Stargell then
left on foot. Id. at p. 48, 51, 65, 74, 95, and 96-97.
{¶ 12} Following the 911 calls, Dayton Police Officer Bryan Camden and other
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officers arrived at the scene. When Camden arrived, he saw two men (Stargell and C.H.)
in the middle of the street, yelling, screaming, and walking back and forth. They were
very angry. Id. at p. 135. After Camden separated the men, he spoke with Jerita, who
told him what had happened. Camden directed other officers to locations to look for
evidence. Id. at p. 137.
{¶ 13} While Camden spoke with Jerita, other officers were walking around,
checking for evidence. Three officers were looking for shell casings, but they did not find
any. No one found any physical evidence at the scene. Id. at p. 136 and 138-139. The
officers looked with flashlights in the driveway and in the shed and garage area, but found
nothing. Id. at p. 139. To Camden’s knowledge, no officers found bullet holes in Jerita’s
vehicle, on the house, or on a residence across the street. No bullet holes were found
anywhere in the vicinity. Id. at p. 141.
{¶ 14} That evening, Camden contacted his supervisor to ask for resources to use
in helping to find shell casings. The Bureau of Alcohol, Tobacco and Firearms (ATF) has
dogs that are trained to sniff out firearm-related materials, but a supervisor, rather than a
street officer, must ask for this assistance. However, the ATF never responded. Id. at
142-143.
{¶ 15} Stargell was indicted on September 19, 2019, for felonious assault and
other firearm-related violations and specifications. Following Stargell’s not guilty plea, a
jury trial was held on August 26 and 27, 2020. During the trial, the State presented the
testimony of Jerita, West, Irmela, and Officer Camden; the defense did not call any
witnesses. After hearing the testimony, the jury found Stargell guilty of felonious assault
and violating the protective order but found him not guilty of the rest of the charges,
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including all gun-related charges and the firearm specifications. Tr. at p. 201-202.
During a sidebar, the judge noted that the verdicts were inconsistent and allowed both
sides to reserve their objections or to file any motions they wished. Id. at p. 203-204.
The judge then discharged the jury. Id. at p. 204-205.
{¶ 16} On September 2, 2020, Stargell filed a motion for acquittal under Crim.R.
29(C) and, in the alternative, a motion under Crim.R. 33(A)(4) to modify the verdict of
felonious assault to assault. The court then set submission dates, including allowing the
State to file a memorandum in response no later than September 16, 2020. However,
the State did not file a response. Subsequently, on September 21, 2020, the court
granted the motion to modify the verdict and reduced the felonious assault conviction to
a conviction for assault, a first-degree misdemeanor. The court also set a sentencing
hearing for September 29, 2020.
{¶ 17} On September 30, 2020, the court filed a judgment entry sentencing Stargell
to 180 days in the Montgomery County Jail for assault, and 180 days in jail for violation
of the protective order, with the terms to be served consecutively. However, since
Stargell had already served 373 days in jail, the court concluded that the sentence had
been satisfied. See Termination Entry at p. 1, and Order Granting Motion to Modify
Verdict. On October 1, 2020, the State filed a notice of appeal from the judgment.
{¶ 18} The State then filed a motion with our court on October 1, 2020, asking for
leave to appeal pursuant to R.C. 2945.67(A) and App.R. 5(C). We granted the State’s
motion on December 3, 2020. See Decision & Entry (Dec. 3, 2020).
II. Discussion
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{¶ 19} The State’s sole assignment of error states:
The Trial Court Abused Its Discretion and Erred in Its Application of
Crim.R. 33(A)(4) When It Modified the Jury’s Verdict, Which Had Found
Stargell Guilty of Felonious Assault.
{¶ 20} Under this assignment of error, the State makes two main points. The first
is that the trial court erred because the jury verdicts were not legally inconsistent.
According to the State, the jury’s negative finding on the firearm specifications and other
charges did not invalidate the guilty verdict for felonious assault because inconsistency
in verdicts arises only when juries give inconsistent responses to the same count. In
addition, with respect to this argument, the State stresses that the not guilty finding on the
specification to felonious assault could not change the finding on the principal charge
because a specification is considered after and in addition to the finding of guilt on the
principal charge.
{¶ 21} The State’s second argument (also used in connection with its first
argument) is that the trial court twice overruled Stargell’s Crim.R. 29 motion for acquittal.
Because the review standards for new trial motions and Crim.R. 29 motions are the same,
the State argues that there is no legitimate reason why the same evidence was not
sufficient for purposes of overruling Stargell’s motion to modify the verdict.
{¶ 22} Before we address the State’s arguments, we must consider whether we
have jurisdiction over this appeal. This is an issue that we can raise on our own initiative.
Barton v. Barton, 2017-Ohio-980,
86 N.E.3d 937, ¶ 45 (2d Dist.); State v. Morris, 2d Dist.
Clark No. 07-CA-112,
2008-Ohio-4744, ¶ 17. Specifically, we would not have jurisdiction
to entertain the appeal if the trial court issued a final verdict. State v. Bunce, 10th Dist.
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Franklin No. 92AP-783, 1993 WL 55186, *1 (Mar. 2, 1993), citing State ex rel. Yates v.
Court of Appeals for Montgomery Cty.,
32 Ohio St.3d 30,
512 N.E.2d 343 (1987).
{¶ 23} In the case before us, the State moved for leave to appeal under R.C.
2945.67, which provides, in pertinent part, that:
(A) A prosecuting attorney, village solicitor, city director of law, or
the attorney general may appeal … by leave of the court to which the
appeal is taken any other decision, except the final verdict, of the trial court
in a criminal case or of the juvenile court in a delinquency case.
{¶ 24} The Supreme Court of Ohio has held that judgments of acquittal under both
Crim.R. 29(A) and (C) are final verdicts that the State may not appeal pursuant to R.C.
2945.67(A). See Yates at 32-33, and State v. Keeton, 18 Ohio St.3d 379,
481 N.E.2d
629 (1985). In Yates, the court rejected the State’s attempt to distinguish between these
two types of acquittals. In this regard, the court stressed that “[t]he judgment of acquittal
in the case sub judice, though entered after a jury verdict and upon the authority of
Crim.R. 29(C), was grounded upon insufficiency of evidence. It is a factual determination
of innocence and as much a final verdict as any judgment of acquittal granted pursuant
to Crim.R. 29(A).” (Footnote omitted.)
Id.
{¶ 25} The trial court’s decision in the case before us was not issued under Crim.R.
29, but was based on Crim.R. 33(A), which provides, in pertinent part, that:
A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
…
(4) That the verdict is not sustained by sufficient evidence or is
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contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified.
{¶ 26} In a recent decision, the Supreme Court of Ohio declined to “extend Yates
and hold that a Crim.R. 33(A)(4) new-trial order based on insufficient evidence is a ‘final
verdict’ under R.C. 2945.67(A) and thus cannot be appealed.” State v. Ramirez, 159
Ohio St.3d 426,
2020-Ohio-602,
151 N.E.3d 598, ¶ 20.
{¶ 27} In Ramirez, a jury found the defendant guilty of voluntary manslaughter.
Id. at ¶ 4. During trial, Ramirez twice moved for acquittal under Crim.R. 29(A), arguing
that there was a lack of evidence that he had acted “under the influence of sudden passion
or a sudden fit of rage” or that the victim had provoked his response. Id. at ¶ 5. The
trial court denied both motions, based on State v. Rhodes, 63 Ohio St.3d 613,
590 N.E.2d
261 (1992), which had said, “in dicta, that when a defendant is charged with voluntary
manslaughter and not murder, ‘neither party is required to establish either of the mitigating
circumstances.’ Instead, ‘the court presumes (to the benefit of the defendant) the
existence of one or both of the mitigating circumstances as a result of the prosecutor's
decision to try the defendant on the charge of voluntary manslaughter rather than murder.’
”
Id., quoting
Rhodes at 618.
{¶ 28} After the trial, Ramirez filed a motion for a new trial under Crim.R. 33(A)(4),
again arguing that there was “insufficient evidence of sudden passion and provocation.”
Id. at ¶ 6. This time, the trial court decided not to apply Rhodes and granted the motion
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for a new trial. Id. The State then appealed. Although the court of appeals initially
granted the State leave to appeal, it then refused to consider the appeal on its merits,
based on both double jeopardy and R.C. 2945.67(A). Id. at ¶ 7. Concerning R.C.
2945.67(A), the court of appeals “reasoned that an order granting a new trial based on
insufficient evidence was functionally an acquittal and hence, a final verdict that could not
be appealed.” Id.
{¶ 29} After the State again appealed, the Supreme Court of Ohio addressed both
double jeopardy and R.C. 2945.67(A). Regarding double jeopardy, the court rejected
the lower court’s conclusion that Ramirez could not be retried and that double jeopardy
protection barred the appeal. Ramirez, 159 Ohio St.3d 426,
2020-Ohio-602,
151 N.E.3d
598, at ¶ 15. Instead, the court held that “ ‘[i]f a court grants a motion to acquit after the
jury has convicted, there is no double jeopardy barrier to an appeal by the government
from the court's acquittal, because reversal would result in reinstatement of the jury
verdict of guilt, not a new trial.’ ”
Id., quoting Evans v. Michigan,
568 U.S. 313, 329,
133
S.Ct. 1069,
185 L.Ed.2d 124 (2013). Thus, the court of appeals could review the
sufficiency issue and could either reinstate the original jury verdict or impose a lesser-
included conviction.
Id.
{¶ 30} However, a different analysis applied in considering R.C. 2945.67(A),
because that statute “places independent limits on the state's ability to pursue a criminal
appeal.” Id. at ¶ 17. In this context, the Supreme Court of Ohio stated that “[t]he
determinative issue here is whether an order granting a motion for a new trial based on
insufficiency of the evidence is a final verdict.” (Emphasis sic.). Id. The court noted its
prior decisions in Keeton and Yates, and acknowledged Yates’s explicit rejection of “the
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idea that ‘final verdict’ should be understood as limited to cases where any relief on appeal
would be blocked by double-jeopardy principles – as would be the case with a pre-jury-
verdict Crim.R. 29(A) judgment of acquittal.” Id. at ¶ 19, citing Yates, 32 Ohio St.3d at
30,
512 N.E.2d 343.
{¶ 31} As noted, the court then declined to extend Yates to orders granting new
trials under Crim.R. 33. The court first reasoned that “a grant of a new trial is not a ‘final
verdict.’ ” Id. at ¶ 21. In this vein, the court elaborated that “[p]lainly, such an order is
not a verdict. And it certainly cannot be a ‘final verdict,’ because granting such a motion
contemplates further proceedings in the form of a new trial.” Id. In addition, the court
concluded that classifying a new trial order as a “final verdict” ignored the meaning of the
term when R.C. 2945.67 was enacted in 1973. Id. at ¶ 22-23.
{¶ 32} Specifically, “[t]he United States Supreme Court did not establish that the
double-jeopardy protection prohibited retrial after a new-trial order based on insufficient
evidence until its decision in Hudson in 1981.” Ramirez, 159 Ohio St.3d 426, 2020-Ohio-
602,
151 N.E.3d 598, at ¶ 23, citing Hudson v. Louisiana,
450 U.S. 40,
101 S.Ct. 970,
67
L.Ed.2d 30 (1981). The Supreme Court of Ohio therefore held that:
As it would have been understood at the time R.C. 2945.67 was
enacted, a Crim.R. 33(A)(4) new-trial order would have been followed by
what the plain language of the rule suggests - a new trial. Since an order
granting a motion for a new trial would have been followed by a new trial, it
would not have been final in any meaningful sense, and hence it would not
be a final verdict under R.C. 2945.67.
Ramirez at ¶ 24.
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{¶ 33} Notably, while Ramirez discussed the part of Crim.R. 33(A)(4) that lets trial
courts grant new trials when the verdict is not sustained by sufficient evidence, it did not
address the portion of the rule that permits a “trial court to modify the verdict or finding
accordingly, without granting or ordering a new trial ….” Ramirez also did not overrule
Yates or any of its prior authority.
{¶ 34} Under the reasoning in Yates, as well as Ramirez, the order here was
clearly a final verdict. The trial court’s decision stated that the jury’s finding of guilt on
the felonious assault charge was not supported by sufficient evidence. The court then
modified the verdict, sentenced Stargell, and filed a termination entry. Unlike the grant
of a new trial, the order modifying the verdict left nothing left to be done; no new trial
would have followed. And, like the post-jury acquittal in Yates, the trial court’s
modification of the verdict was authorized by the applicable criminal rule and was based
on sufficiency of the evidence. Yates, 32 Ohio St.3d at 32,
512 N.E.2d 343. Therefore,
Ramirez does not impact the result here.
{¶ 35} Ramirez was issued on February 25, 2020. To date, only two cases have
cited it, and neither has done so in any pertinent context. See State v. O'Connell, 2020-
Ohio-1369, 153 N.E.3d 771, ¶ 36 (1st Dist.) (citing a general statement in Ramirez about
double jeopardy), and State v. Keim, 11th Dist. Trumbull No. 2020-T-0050, 2021-Ohio-
793, ¶ 11 (finding the defendant’s citation of Ramirez irrelevant to a subject-matter
jurisdiction issue).
{¶ 36} We note that courts have allowed the State leave to appeal in some cases
that involved judgments of acquittal However, the issues in question have concerned
matters like “evidentiary rulings and rulings on issues of law, because those rulings fall
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within the language of ‘any other decision, except the final verdict,’ in R.C. 2945.67(A).”
State v. Pawelski, 178 Ohio App.3d 426,
2008-Ohio-5180,
898 N.E.2d 85, ¶ 11 (2d Dist.),
citing State v. Arnett,
22 Ohio St.3d 186,
489 N.E.2d 284 (1986), and State v. Bistricky,
51 Ohio St.3d 157,
555 N.E.2d 644 (1990). Nonetheless, courts have rejected the
State’s attempt to appeal where the State is simply appealing the final resolution of the
case, not the above types of issues. E.g., State v. Roddy, 8th Dist. Cuyahoga No. 88759,
2007-Ohio-4015, ¶ 13. Compare City of Blue Ash v. Price,
2018-Ohio-1062,
98 N.E.3d
345, ¶ 7 (1st Dist.) (allowing appeal where a city admitted it could not appeal the not guilty
finding concerning an ordinance violation, but wanted review of whether the ordinance
was constitutional).
{¶ 37} Our review of the State’s brief indicates the State is not raising any
evidentiary or substantive legal issues. Instead, the State simply asks that we vacate
the trial judge’s decision and reinstate the jury verdict. See Appellant’s Brief, p. 8. This
is because the State contends the jury verdict was based on sufficient evidence and
because it speculates that the jury may not have followed the trial court’s instructions.
Id.
{¶ 38} Accordingly, this appeal is not properly before us because the State cannot
appeal from the final verdict under R.C. 2945.67(A). As a result, the appeal must be
dismissed, and our prior decision allowing a discretionary appeal must be vacated.
III. Conclusion
{¶ 39} Because we lack jurisdiction over the appeal, the appeal is dismissed. In
addition, the decision of December 3, 2020, allowing the State’s appeal is vacated.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Adam J. Arnold
Hon. Mary Lynn Wiseman
