State v. Moore
2012 Ohio 2935
Ohio Ct. App.2012Background
- Moore was charged in Feb 2009 with six counts (drug possession/trafficking, weapons, and possessing criminal tools) and related forfeiture specs; Count 7 pertained to possessing criminal tools and Count 6 related to Parker.
- At trial, Moore was convicted on all counts and sentenced to a 13-year term; the journal entry stated Moore waived appellate rights.
- This court initially dismissed Moore’s 2009 appeal due to the waiver of appellate rights shown in the sentencing entry.
- In 2010 Moore moved to vacate his sentence, arguing failure to impose the mandatory fine under R.C. 2925.11(E) and 2929.18(B) and lack of an indigency affidavit; the trial court denied.
- On remand, this court in Moore I vacated part of the sentence and remanded for resentencing, ruling the fine should have been imposed if no indigency affidavit existed.
- On remand Moore filed a Crim.R. 29(C) motion for acquittal; the trial court denied; Moore appealed contending renumbering of counts violated due process and Moore was not charged for Count 6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Renumbering counts violated due process rights | Moore argues Count 6 (Parker’s) applies to him due to renumbering and lack of proper indictment. | Moore contends he was convicted only of Count 7; renumbering created error and he should be acquitted of Count 6. | Renumbering not error; conviction valid. |
| Res judicata bar prevents review of this theory | Moore could not raise this issue previously and is barred by res judicata. | State asserts the issue was or could have been raised on direct appeal. | Barred by res judicata. |
| Crim.R. 29(C) timeliness of motion for acquittal | Moore sought acquittal long after the 14-day window. | State argues untimeliness prevents relief. | Motion untimely. |
Key Cases Cited
- State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata and waivable issues on appeal)
- State v. Saxon, 109 Ohio St.3d 176 (2006) (issues not raised on direct appeal are barred by res judicata)
- State v. Boyd, 2004-Ohio-368 (2004) (renumbering of verdict forms not reversible error)
- Gooden v. Bradshaw, 2011-Ohio-5300 (2011) (verdict form numbering guidance; avoids jury confusion)
- State v. Moore, 2011-Ohio-4246 (2011) (earlier appeal on waiver and sentencing issues; remand guidance)