State v. JacksonState v. Jackson
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and sentence. The trial court found Gerald F. Jackson, Jr., defendant below and appellant herein, guilty of criminal trespass, in violation of
{¶ 2} Appellant assigns the following error for review:
“THE TRIAL COURT ERRED IN CONVICTING GERALD JACKSON, JR. FOR THE OFFENSE OF CRIMINAL TRESPASS AS THIS CONVICTION IS VIOLATIVE OF BOTH THE DOUBLE
JEOPARDY CLAUSE AND CRIMINAL RULE 33.”1
{¶ 3} On January 23, 2009, the Ross County Grand Jury returned an indictment that charged appellant with burglary, in violation of
{¶ 4} At appellant‘s trial, Lisa Gildon testified that on January 10, 2009, she heard a noise and looked outside. She saw someone, later identified as the appellant, across the street on the porch of Michael Stimmer‘s mobile home. Gildon observed appellant look into the windows and throw a rock through one of the windows. As appellant attempted to enter the home through the broken window, Gildon called 911. Shortly thereafter, three Chillicothe police officers arrived at the premises and found appellant inside the mobile home.
{¶ 5} Stimmer, the mobile home resident, testified that during January 2009, he spent most of his time staying at his parents’ home, rather than his mobile home. His testimony also established that (1) he had no intention of being present at the mobile home on the night of January 10, 2009, (2) he did not recall the last time he was at the mobile home, and (3) he did not know when he would return to the mobile home.
{¶ 6} Appellant subsequently filed a
{¶ 7} After the parties finished presenting evidence, the trial court instructed the jury regarding the offense of burglary and the lesser included offense of criminal trespass. The court provided the jury with the following definition of “trespass,” an element of burglary: “The offense of trespass is committed when a defendant without privilege to do so knowingly enters on or remains on the land or premises of another.” The court instructed the jury that if it determined that the state failed to prove all of the essential elements of burglary, it then would determine if the state proved all of the essential elements of the lesser included offense of criminal trespass. The court instructed the jury:
“Before you can find the defendant guilty of criminal trespass * * * you must find beyond a reasonable doubt that * * * [appellant], without privilege to do so did knowingly enter or remain on the premises of another.”
{¶ 8} The jury later found appellant guilty of burglary. Appellant appealed his conviction and argued that the trial court erroneously denied his
{¶ 9} On December 21, 2011, the trial court found appellant guilty of criminal trespass, in violation of
{¶ 10} In his sole assignment of error, appellant argues that the trial court‘s judgment convicting him of criminal trespass violates double jeopardy principles and
{¶ 11} The Double Jeopardy Clause of the
“‘Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.’ Tibbs v. Florida (1982), 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652. Therefore, ‘“[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.“’ State v. Calhoun (1985), 18 Ohio St.3d 373, 376, 18 OBR 429, 481 N.E.2d 624, quoting Burks v. United States (1978), 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1.”
{¶ 12} In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the court held that when an appellate court reverses a defendant‘s conviction on the sole ground that the evidence was insufficient to sustain the jury‘s verdict, the Double Jeopardy Clause bars a retrial on the same charge. Id. at 18. Accord Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290 (1988). The Lockhart court explained the rationale of Burks as follows:
”Burks was based on the view that an appellate court‘s reversal for insufficiency of the evidence is in effect a determination that the government‘s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Burks, 437 U.S., at 16-17, 98 S.Ct., at 2149-2150. Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal. Id., at 10-11, 16, 98 S.Ct., at 2146-2147, 2149. The fact that the determination of entitlement to a judgment of acquittal is made by the appellate court rather than the trial court should not, we thought, affect its double jeopardy consequences; to hold otherwise ‘would create a purely arbitrary distinction’ between defendants based on the hierarchical level at which the determination was made. Id., at 11, 98 S.Ct., at 2147.”
{¶ 14} Additionally, our reversal for insufficiency of the evidence was, in effect, a determination that the state‘s burglary case was so lacking that the trial court should have entered a judgment of acquittal and not submitted it to the jury. Burks, 437 U.S. at 16-17. Our reversal indicated no such thing with respect to the lesser included offense of criminal trespass. Had the trial court entered a judgment of acquittal regarding the burglary charge, the state still could have requested the court to submit the lesser included offense to the jury. As it stands, the jury was instructed regarding the lesser included offense of criminal trespass, but because it found appellant guilty of burglary, it did not explicitly consider whether he was guilty only of the lesser included
{¶ 15} Appellant next argues that even if his conviction does not violate double jeopardy principles, the trial court lacked authority to convict him of a lesser included offense. Appellant asserts that our remand was not sufficient to vest the trial court with authority to convict him of a lesser included offense and proposes that the court would have such authority only if he filed a new trial motion under
{¶ 16} In Rutledge v. United States, 517 U.S. 292, 305-306, 11 S.Ct. 1241, 134 L.Ed.2d 419, we note that the court expressly approved of the practice whereby an appellate court reverses a conviction on grounds affecting only the greater offense and directs the entry of judgment for a lesser included offense. The Rutledge court endorsed the approach that the court adopted in Allison v. United States, 409 F.2d 445 (C.A.D.C. 1969). Rutledge, 517 U.S. at 305, fn.15, and 306. In Allison, the court set forth the circumstances that must exist in order to justify an
{¶ 17} In the case sub judice, we believe that all four circumstances exist: (1) we determined that the evidence adduced at appellant‘s trial failed to support an essential element of his burglary conviction; (2) the burglary conviction necessarily entailed a finding that appellant committed criminal trespass and the evidence the state presented at trial sufficiently demonstrates that appellant committed criminal trespass; (3) criminal trespass is a lesser included offense of burglary; and (4) appellant has not established how he is unduly prejudiced. We certainly recognize that appellant‘s conviction of a lesser included offense obviously causes him some prejudice (in the sense that but for our remand, he would not be convicted of any offense), but appellant has not demonstrated how this prejudice is undue.
{¶ 18} Moreover, we observe that both
A new trial, after a verdict of conviction, may be granted on the application of the defendant for any of the following causes affecting materially his substantial rights: * * * *
(D) That the verdict is not sustained by sufficient evidence or is contrary to law; but 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 pass sentence on such verdict or finding as modified, provided that this power extends to any court to which the cause may be taken on appeal;
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 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;
{¶ 19} While both rules purport to require the defendant to request a new trial before a court may modify a verdict, neither states that it is the exclusive means by which a trial court may modify a verdict. Moreover,
{¶ 20} Accordingly, based upon the foregoing reasons, we overrule appellant‘s assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, J.: Concurs in Judgment & Opinion
Kline, J.: Concurs in Judgment Only
For the Court
BY: ____________________
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Topics and Issues
Notes
“No person, by force, stealth, or deception, shall * * * [t]respass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.”
The 2011 amendment redesignated this section