2023 Ohio 940
Ohio Ct. App.2023Background:
- On Sept. 3, 2021 Grandview Heights charged B.S.H. with criminal damaging after an alleged vehicle collision with victim K.H.'s parked car; case transferred to Franklin Cty. Municipal Court.
- K.H. (victim) filed a pretrial motion asserting her right under Marsy’s Law (Ohio Const. Art. I, §10a), R.C. 2930.09, and Evid.R. 615 to be present for all proceedings.
- At a hearing immediately before trial the court denied K.H.'s request, finding K.H. and B.S.H. were in an ongoing neighbor dispute and that K.H.'s presence could taint testimony and prejudice B.S.H.'s right to a fair trial.
- The case proceeded to a bench trial on Feb. 28, 2022; the court acquitted B.S.H. of criminal damaging and dismissed the charge.
- K.H. appealed the denial of her motion to be present; the appellate court held the appeal moot because double jeopardy bars retrial and there was no available remedy.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying the victim’s statutory and constitutional right to be present at trial | K.H.: Marsy’s Law, R.C. 2930.09, and Evid.R. 615 guarantee the victim’s right to be present for all proceedings; the court needed particularized findings before exclusion | B.S.H.: Victim’s presence would prejudice defendant and deprive her of a fair trial (risk of tainted testimony) | Court: Even assuming error, appeal is moot because B.S.H. was acquitted; double jeopardy bars retrial, so no effective remedy—appeal dismissed for lack of jurisdiction |
Key Cases Cited
- State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167 (2020-Ohio-5452) (interpreting Section 10a’s petition/remedy language and appellate review scope)
- State v. Jackson, 107 Ohio St.3d 53 (2005-Ohio-5981) (trial court has discretion to exclude a victim if necessary to protect defendant’s fair-trial rights)
- Bravo-Fernandez v. United States, 580 U.S. 5 (2016) (Double Jeopardy protects against a second prosecution after acquittal)
- Ashe v. Swenson, 397 U.S. 436 (1970) (Double Jeopardy protects an acquitted person from retrial)
- Spencer v. Kemna, 523 U.S. 1 (1998) (framework for "capable of repetition, yet evading review" mootness exception)
- State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229 (2000) (application of the repetition-evading-review exception)
- M.R. v. Niesen, 167 Ohio St.3d 404 (2022-Ohio-1130) (same-party requirement for the "capable of repetition" mootness exception)
- In re A.G., 148 Ohio St.3d 118 (2016-Ohio-3306) (recognizing double jeopardy protections under Ohio law)