State v. Jackson
2012 Ohio 5619
Ohio Ct. App.2012Background
- Appellant Gerald F. Jackson, Jr. was charged with burglary in Ross County (Jan. 23, 2009 indictment).
- Trial evidence showed appellant on a mobile home premises, peering into windows, throwing a rock, and being found inside after police arrival.
- State’s theory relied on burglary and its elements, including the “likely to be present” resident element at the time.
- The trial court denied Crim.R. 29(A) motion for acquittal, and a jury instruction enabled a lesser-included offense of criminal trespass.
- The appellate court later reversed the burglary conviction for insufficiency and remanded, directing consideration of the lesser offense; on remand, the trial court convicted appellant of criminal trespass in 2011 and sentenced time served.
- Appellant appeals, arguing double jeopardy and Crim.R. 33-related issues regarding conviction of the lesser offense on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy bars remand conviction for lesser offense | Jackson argues remand crafted after insufficiency reversal bars lesser offense | Jackson asserts double jeopardy and need for new-trial procedures | Not barred; conviction of trespass permissible on remand |
| Authority to convict lesser offense on remand | Jackson claims no authority without Crim.R. 33(A)(4) motion | State argues appellate authority to modify verdict exists without new-trial motion | Appellate remand authorized conviction for criminal trespass without new-trial motion |
| Procedural basis for modifying verdict to lesser offense | Jackson contends rules require Crim.R. 33(A)(4) or new trial | Remand and statutory provisions permit modification of verdict to lesser offense | Rules authorize modification; remand permissible without new-trial if evidence supports lesser offense |
Key Cases Cited
- Burks v. United States, 437 U.S. 1 (U.S. 1978) (double jeopardy limits on retrial after insufficiency)
- Lockhart v. Nelson, 488 U.S. 33 (U.S. 1988) (Burks rationale applied to appellate insufficiency rulings)
- Rutledge v. United States, 517 U.S. 292 (U.S. 1996) (approved reversal-to-convict lesser offense framework)
- Allison v. United States, 409 F.2d 445 (D.C. Cir. 1969) (conditions for directing lesser offense on remand)
- State v. Butler, 11 Ohio St.2d 23 (1967) (authority to convict of lesser offense cited in Ohio)
- State v. Brewer, 121 Ohio St.3d 202 (2009) (coextensive double jeopardy protections)