[Cite as State v. Street, 2023-Ohio-4405.]

Atty. Jane M. Hanlin, Jefferson County Prosecutor, and Atty. George M. Sarap,

Assistant Prosecuting Attorney, for Plaintiff-Appellee and

Atty. Felice Harris, Harris Law Firm, LLC, for Defendant-Appellant.

Dated: December 5, 2023

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

JEFFERSON COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

STEPHEN V. STREET,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 22 JE 0025

Criminal Appeal from the

Court of Common Pleas of Jefferson County, Ohio

Case Nos. 21-CR-214, 22-CR-8

BEFORE:

David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Vacated.
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D’APOLITO, P.J.

{¶1} Appellant, Stephen V. Street, appeals the order of the Jefferson County 

Court of Common Pleas finding him not guilty by reason of insanity (“NGRI”) following a 

bench trial. “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense 

only if the person proves, in the manner specified in section 2901.05 of the Revised Code, 

that at the time of the commission of the offense, the person did not know, as a result of 

a severe mental disease or defect, the wrongfulness of the person’s acts.” R.C. 

2901.01(A)(14).

{¶2} Appellant advances four assignments of error. First, Appellant contends his 

waiver of jury trial was invalid, as there is no written waiver in the record and he did not 

personally waive his right in open court. Appellant further argues that the NGRI verdicts 

constitute acquittals and are voidable, rather than void, such that jeopardy has attached 

and he cannot be retried. Next, Appellant argues the trial court committed plain error as 

it did not conduct a proper R.C. 2945.40(B) civil commitment hearing. Third, Appellant 

asserts ineffective assistance of counsel because his trial counsel failed to seek a 

dismissal of the charges at the conclusion of the state’s case based on lack of venue and 

insufficient evidence. Finally, Appellant argues the trial court lacked jurisdiction to 

entertain the state’s March 13, 2023 motion for designation or modification of the record 

pursuant to App. R. 9(E).

{¶3} For the following reasons, the NGRI verdicts are vacated. Further, double 

jeopardy prohibits Appellant’s retrial on the charged counts.

FACTS AND PROCEDURAL HISTORY

{¶4} In 21 CR 214, Appellant was charged with five counts of aggravated arson

in violation of R.C. 2909.02(A)(1), felonies of the first degree; one count of aggravated 

arson in violation of R.C. 2909.02(A)(2), a felony of the second degree; one count of arson

in violation of R.C. 2909.03(A)(1), a misdemeanor of the first degree; and one count of 

criminal damaging or endangering in violation of R.C. 2909.06(A)(1), (B), a misdemeanor 

of the first degree. All counts relate to a single act of igniting a fire on the front porch of 
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a neighboring residence, in which five people – two adults and three children – were 

present. Appellant entered NGRI pleas to each count. 

{¶5} In 22 CR 008, Appellant was charged with one count of vandalism in 

violation of R.C. 2909.05(A), (E), a felony of the fifth degree, and one count of criminal 

damaging in violation of R.C. 2909.06(A)(1), (B), a misdemeanor of the second degree. 

Both counts relate to a single act of breaking the front windows of an occupied structure. 

Appellant entered both NGRI and not guilty pleas to each count. The cases were 

consolidated by the trial court.

{¶6} Each of the charges required the state to prove beyond a reasonable doubt 

that Appellant knowingly created a substantial risk of harm or knowingly caused physical 

harm: 

A person acts knowingly, regardless of purpose, when the person is aware 

that the person’s conduct will probably cause a certain result or will probably 

be of a certain nature. A person has knowledge of circumstances when the 

person is aware that such circumstances probably exist. When knowledge 

of the existence of a particular fact is an element of an offense, such 

knowledge is established if a person subjectively believes that there is a 

high probability of its existence and fails to make inquiry or acts with a 

conscious purpose to avoid learning the fact.

R.C. 2901.22(B).

{¶7} According to an evaluation performed on January 6, 2022 by Daniel Hrinko, 

Psy.D., a forensic psychologist, Appellant was competent to stand trial pursuant to R.C. 

2945.371(H)(3). Dr. Hrinko opined Appellant was “presently mentally ill,” however, 

“[Appellant’s] symptoms of severe mental illness, which can be debilitating at times, are 

relatively well managed through the use of psychotropic medications at this point.” 

(1/6/22 Report, p. 7.) In a report dated July 18, 2022, Jaime C. Adkins, Psy.D., ABPP, 

another forensic psychologist, reached the same conclusion. 

{¶8} With respect to the NGRI pleas, Dr. Hrinko issued a report dated February 

2, 2022. Appellant, who was in his early sixties on the day of the evaluation, was 
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diagnosed with bipolar disorder at the age of 17 and has a history of residential treatment 

in various psychiatric facilities throughout his life. Several months prior to the charged 

offenses, Appellant stopped taking his medications (Lithium and Zyprexa) due to a feeling 

of being overmedicated. The medications were prescribed in 2017. 

{¶9} Without medication, Appellant reported hallucinations, for instance, seeing 

deceased family members in trees. Appellant was hospitalized roughly five days prior to 

the alleged offenses, however he was inexplicably discharged despite reporting 

continuing hallucinations. According to Appellant, he is paranoid and overly suspicious 

when he is not medicated, which causes him to engage in impulsive conduct like 

smashing windows. 

{¶10} Appellant told Dr. Hrinko that he saw suspicious cars in his neighbor’s 

driveway during the week leading up to the charged conduct. Encouraged by a 

conversation with his deceased sister (both of his sisters are alive), Appellant filled a 

Mason jar with “2 cycle engine mix,” attached a piece of cloth on the top, and ignited it in 

order to create a “lantern effect” on his neighbor’s property. 

{¶11} Dr. Hrinko concluded in the February 2, 2022 report that Appellant did not 

know the wrongfulness of the acts charged in the indictments. In a report dated October 

9, 2022, Bob Stinson, Psy.D., reached the same conclusion. As a part of his evaluation, 

Dr. Stinson reviewed Dr. Hrinko’s report as well as a report prepared by Dr. Adkins on 

June 22, 2022, in which she concurred with Dr. Hrinko. 

{¶12} After resuming his medication following his arrest, Appellant’s mood 

stabilized. According to treatment notes from October 6, 2021, Appellant’s mental status 

was unremarkable with his thought process being logical, his perception within normal 

limits, and no evidence of delusions. 

{¶13} On October 27, 2021, while awaiting trial, Appellant was referred from the 

Jefferson County Jail to Appalachian Behavior Healthcare. Appellant had once again 

discontinued his medication and was suffering from visual and auditory hallucinations. 

Appellant believed his deceased wife had come back to life (he was never married) and 

he saw his sister’s dead body lying in his bed. The dosage of Appellant’s medication was 

increased and he returned to the jail roughly two weeks later.
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Case No. 22 JE 0025

{¶14} On April 5, 2022, counsel for Appellant filed an omnibus motion captioned, 

“Motion to Consolidate Cases/Wavier of Jury Trial/Motion for Second Opinion of Mental 

State/Waiver of Time” in 21 CR 214. “Branch Three” of the motion reads, in its entirety, 

“[t]he Defendant waives his right to a jury and requests the Court proceed to a bench trial 

in the above-captioned cases.” Appellant did not sign the motion.

{¶15} Appellee attached two pages of a transcript from a pre-trial hearing 

conducted on April 25, 2022 to its appellate brief. The transcript of the hearing is not in 

the record. At the hearing, the trial court requests an agreed trial date and defense 

counsel responds, “Your Honor, I think that when we – and, too, [I am] waiving a jury so 

I think – .” The trial court replies, “I know, but I’d still like to have a trial date.” A few 

moments later, defense counsel states, “[I am] waiving a jury.” The trial court responds, 

“Okay. That’s fine. I heard it all. I got it.” 

{¶16} On April 25, 2022, Appellant executed a written waiver of his right to a 

speedy trial. A scheduling order, which memorialized the consolidation of the cases and 

was issued that same day, reads, in relevant part, “Defendant waived his right to be tried 

by a Jury. A Bench Trial shall be conducted on Tuesday, July 19, 2022 at 9:00 A.M.”

{¶17} Roughly six months later, testimony and evidence were offered at 

Appellant’s competency hearing on October 13, 2022. At the hearing, the trial court 

accepted the testimony of Dr. Stinson and Julie Gomez, the Executive Director of the 

National Alliance on Mental Health, Greater Wheeling. Dr. Stinson testified that 

Appellant’s diagnoses included “Bipolar I and schizoaffective disorder bipolar (inaudible).” 

(10/13/22 Hrg. Tr., p. 11.) During his lifetime, Appellant had been institutionalized 

approximately sixteen times, in eleven different institutions, across five different states. 

Dr. Stinson opined “[i]f [Appellant] wants to remain stable, [it is] absolutely important he 

takes his medicine.” (Id. at p. 12.) Dr. Stinson further opined Appellant was not aware of 

the wrongfulness of the charged acts, as he was both manic and psychotic at the time 

they were committed. 

{¶18} In order to facilitate Appellant’s admission into the preferred treatment 

facility, Gomez testified she was working with Appellant’s family to secure placement for 

Appellant at a twenty-four-hour supervised group home/supportive living facility for 

individuals with mental health conditions, pending the administration of a tuberculosis test 
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Case No. 22 JE 0025

and physical on Appellant. Gomez explained that space was limited and that no bed 

would be available on the date of the commitment hearing without advanced preparation.

{¶19} Following the hearing, the trial court concluded Appellant was competent to 

stand trial, which is memorialized in a judgment entry issued the same day. Appellant 

does not challenge the trial court’s competency determination in this appeal.

{¶20} At the bench trial/commitment hearing conducted on October 26, 2022, the 

trial court inquired, “Was there a waiver of his right to trial by jury filed?” Defense counsel 

responded, “Yes, there was. We did do a waiver, your Honor.” The state confirmed, 

“That’s been done, yeah.” (10/26/22 Trial Tr., p. 45-46.) Although the omnibus motion 

contains a waiver of jury trial, it does not comport with the requirements of R.C. 2945.05. 

Further, Appellant did not waive his right to a jury trial in open court. 

{¶21} The trial court ultimately concluded Appellant committed the acts in question 

based on factual stipulations that were not made a part of the record until after the notice 

of appeal was filed. According to an affidavit of the deputy clerk, the stipulations were in 

the file but were not time-stamped or docketed. 

{¶22} The stipulations read, in their entirety:

The events herein all occurred in Jefferson County, Ohio.

The specifics of the Indictment as to times, locations, defendant and names 

of victims are incorporated herein.

On or about October 19, 2021, Stephen Street did knowingly start a fire at 

an occupied structure, to wit: the residence of Jason Elliot[t] located at the 

address indicated in the Indictment. The address was 1135 County Road 

41, Richmond, Ohio.

The fire was started and ignited on the porch of the occupied structure.

At the above time and place, the persons in and occupying the structure 

were as stated in the Indictment. The persons were Jason Elliot[t], Sarah 

Elliot[t], C.E., a minor, age 13 (D.O.B. 4-25-2008)[,] S.E., a minor, age 11 

(D.O.B. 4-15-2010)[,] and J.E., a minor, age 9 (D.O.B. 5-30-12).
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Case No. 22 JE 0025

The fire caused harm to the structure.

Stephen Street did knowingly by means of fire cause or create a substantial 

risk of, [sic] physical harm to the property of Jason C. Elliot[t].

On or about October 19, 2021, Stephen Street did knowingly cause serious 

physical harm to an occupied structure or any of its contents, to wit: 

property located at 8008 County Road 56, Toronto, Ohio. The damage was 

in excess of one thousand dollars ($1,000.00). The defendant broke 

windows and caused other damage to the structure. The structure was 

occupied by Michael Bernhart.

(2/14/23 Stipulations, p. 1.).

{¶23} At the commencement of the October 26, 2022 hearings, the following 

colloquy occurred:

PROSECUTOR: Your Honor, may I approach?

THE COURT: Yes.

PROSECUTOR: Stipulations.

DEFENSE COUNSEL: Absolutely.

PROSECUTOR: [Here are] our stipulations, your Honor --

THE COURT: All right. 

PROSECUTOR: -- signed by both parties (providing). * * * Okay. Your 

Honor, you have been given the stipulations. [That is] most of, you know, 

what [we are] here arguing about. Much of it has been stipulated to.

My opening [statement], generally, I -- you know, if [it is] a jury, [I will] read 

the Indictments at the same time. We stipulate --

DEFENSE COUNSEL: We would stipulate to the Indictments.
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Case No. 22 JE 0025

PROSECUTOR: -- to the Indictments on case 21-214 and 22-8, and I 

incorporate them into my opening statement.

THE COURT: All right.

PROSECUTOR: I [do not] want to get directed out.

As for evidence, Judge, we also have available the statement of [Appellant]. 

I have that on a memory stick, if the Court wants to review that, and we have 

some body cam[era]s.

(10/26/21 Hrg. Tr., p. 33-34.) Appellant’s statement and the body camera footage are not 

in the record.

{¶24} In turn, defense counsel stipulated to the psychological reports, including 

the competency reports and the results of the forensic examinations. Defense counsel 

acknowledged “three doctors have found that [Appellant] was not able to appreciate the 

wrongfulness of his conduct at the time the offenses were allegedly committed. I think we 

have stipulated to all the factual issues.” (Id., p. 35.) As a consequence, defense counsel 

argued “based on everything [the trial court has] in front of [it] right now, [the trial court] 

really [has] no other recourse than to find that [Appellant] was not able to appreciate the 

wrongfulness of his actions at the time of the offenses.” (Id., p. 37.) 

{¶25} With respect to the stipulations, the prosecutor observed:

Just so the Court is clear, your Honor, the stipulations cover everything in 

this case, okay, except one thing. They stipulated – just so you know where 

[we are] going – that [Appellant] did knowingly, by means of fire, create a 

substantial risk of physical harm to the property of Jason Elliott. Okay. No 

question he started the fire and everything, but they [did not] stipulate that 

him doing that created a substantial risk of serious physical harm to the 

people inside. [That is] what they [will not] stipulate to [sic].

So if they stipulate to that, then [it is] over. I mean, we just end the thing 

right now.
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Case No. 22 JE 0025

(Id., p. 38-39.) 

{¶26} The trial court responded, “[w]ell, [it is] over because he was insane at the 

time. * * * [That is] what makes it over.” Defense counsel agreed. (Id., p. 39.)

{¶27} Although the trial court expressed its opinion that no additional testimony 

was necessary based on the stipulations, the state offered the testimony of Jefferson 

County Sheriff’s Deputy Tyler Yoho. Defense counsel’s response to Deputy Yoho’s 

proposed testimony was “[I am] not disputing anything.” (Id., p. 39.) 

{¶28} Deputy Yoho was an investigating officer assigned to the Elliott case, as 

well as a professional-level firefighter with an instructor’s degree. When asked by the 

prosecutor if the fire on the porch created a substantial risk of “catching the house on 

fire,” he responded, “I believe it had the potential, yes.” (Id., p. 42.) The prosecutor asked, 

“[t]hen that being said, do you have an opinion as to whether it created a substantial risk 

of serious physical harm to the people in the house,” Deputy Yoho responded, “I believe 

it did for the residence. The people inside would also be at risk as well.” (Id.) 

{¶29} Next, the trial court viewed a video recording that was not specifically 

identified in the record. However, earlier in the hearing, the prosecutor expressed his 

intent to play a video recording of the porch fire, which the trial court deemed unnecessary 

due to the stipulations. Further, the trial court admitted photographs, which Deputy Yoho 

authenticated, accompanied by a stipulated laboratory report.

{¶30} The trial court delivered the following verdicts:

So based upon the stipulations, based upon the video and the testimony of 

the officer, I do find beyond a reasonable doubt that [Appellant] committed 

all of the acts set forth in the Indictments and that there was a substantial 

risk of serious physical harm to people, but I also find that he was insane at 

the time and that he did not understand or appreciate the wrongfulness of 

his conduct. 

So [he is] Not Guilty by Reason of Insanity, and now we have to have the 

hearing about what [we are] going to do about it.

(Id., p. 46.)
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Case No. 22 JE 0025

{¶31} Following the trial court’s NGRI verdicts, the trial court accepted additional 

testimony from Gomez, in which she provided an update regarding Appellant’s eligibility 

for admission to the preferred treatment facility. During the commitment hearing, Gomez 

reported that Appellant had fulfilled the admission requirements, and she had secured 

financing for the first three months of his commitment through the County until Appellant’s 

federal benefits became available. Appellant was transferred to the facility directly from 

the hearing. 

{¶32} The Order Finding Defendant Not Guilty by Reason of Insanity reads, in 

relevant part:

The parties stipulated to the findings and conclusions listed in the 

Competency Evaluations completed by Jaime C. Adkins, Psy.D., from the 

Forensic Diagnostic Center of District Nine, Inc., and Bob Stinson, Psy.D., 

from Stinson & Associates, Inc., all of which reached the same conclusion.

The parties stipulated to the contents of the reports and their submission 

into evidence. 

Based on the stipulations of the parties to the facts in the Indictment, the 

reports submitted into evidence and the testimony, the Court finds that the 

Defendant is Not Guilty based solely on a severe mental disease and he 

did not know the wrongfulness of the acts charged.

The Court enters Verdict and Judgment in this case and finds Defendant 

Not Guilty by Reason of Insanity. 

Defendant is ordered to undergo treatment and comply with any and all 

requirements for treatment by Mayle Homes, Inc. and shall be committed to 

Mayle Homes, Inc. for a period of eleven (11) years, subject to review, while 

undergoing treatment, rehabilitation, and education.
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Case No. 22 JE 0025

(10/27/2022 Order, p. 1.) According to a statement by the trial court at the hearing, the 

imposition of the eleven-year commitment was predicated upon the maximum prison 

sentence Appellant faced had he been convicted on all counts.1

{¶33} This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT VIOLATED [APPELLANT’S] CONSTITUTIONAL 

RIGHT TO TRIAL BY JURY AND PLAINLY ERRED IN PROCEEDING 

WITH A BENCH TRIAL WHERE [APPELLANT] DID NOT PERSONALLY 

WAIVE TRIAL BY JURY IN OPEN COURT OR OTHERWISE SIGN A 

WRITTEN JURY WAIVER, FILED IN THE CAUSE, AND MADE PART OF 

THE RECORD. 

{¶34} The Sixth Amendment to the United States Constitution and Section 10, 

Article I, of the Ohio Constitution provide criminal defendants with the right to a jury trial. 

In Ohio, five conditions must be met in order for a waiver of a defendant’s constitutional 

right to a jury trial to be effective:

The waiver must be (1) in writing, (2) signed by the defendant, (3) filed, (4) 

made part of the record, and (5) made in open court. See State v. Lomax, 

114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9.

State v. VanFossen, 2022-Ohio-4022, 199 N.E.3d 716, ¶ 15 (7th Dist.).

{¶35} The requirements for waiver of a jury trial in Ohio are addressed by both 

criminal rule and statute. “In serious offense cases the defendant before commencement 

of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by 

1 A person found not guilty by reason of insanity and committed pursuant to section 2945.40 of 

the Revised Code shall remain subject to the jurisdiction of the trial court pursuant to that 

commitment until the final termination of the commitment as described in R.C. 2945.401(J)(1). If 

the jurisdiction is terminated because of the final termination of the commitment resulting from the 

expiration of the maximum prison term or term of imprisonment described in division R.C. 

2945.401(J)(1)(b), the court or prosecutor may file an affidavit for the civil commitment of the 

defendant or person pursuant to Chapter 5122 or 5123 of the Revised Code. R.C. 2945.401(A).
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Case No. 22 JE 0025

jury.” Crim.R. 23(A). More specifically, R.C. 2945.05, captioned “Defendant may waive 

jury trial,” reads in its entirety:

In all criminal cases pending in courts of record in this state, the defendant 

may waive a trial by jury and be tried by the court without a jury. Such waiver 

by a defendant, shall be in writing, signed by the defendant, and filed in said 

cause and made a part of the record thereof. It shall be entitled in the court 

and cause, and in substance as follows: “I _________, defendant in the 

above cause, hereby voluntarily waive and relinquish my right to a trial by 

jury, and elect to be tried by a Judge of the Court in which the said cause 

may be pending. I fully understand that under the laws of this state, I have 

a constitutional right to a trial by jury.”

{¶36} The waiver of trial by jury must be made in open court after the defendant 

has been arraigned and has had opportunity to consult with counsel. However, the trial 

court need not engage in a lengthy colloquy with the defendant. For instance, in State v. 

Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d 905 (10th Dist.), the trial 

court stated to the defendant in open court, “it is my understanding that you have waived 

your right to a jury trial and would like to have the court decide this case,” and the 

defendant replied, “yes.” The Tenth District concluded that the foregoing exchange 

satisfied the minimum requirements of R.C. 2945.05 and Lomax. Id. at ¶ 13. The waiver 

may be withdrawn by the defendant at any time before the commencement of the trial.

{¶37} On April 5, 2022, Appellant filed an omnibus motion captioned, “Motion to 

Consolidate Cases/Wavier of Jury Trial/Motion for Second Opinion of Mental 

State/Waiver of Time” in 21 CR 214. “Branch Three” of the motion reads, in its entirety, 

“[t]he Defendant waives his right to a jury and requests the Court proceed to a bench trial 

in the above-captioned cases.” Appellant did not sign the motion.

{¶38} Appellee attached two pages of a transcript from a pre-trial hearing 

conducted on April 25, 2022 to its appellate brief. The transcript of the hearing is not in 

the record. At the hearing, the trial court requests an agreed trial date and defense 

counsel responds, “Your Honor, I think that when we – and, too, [I am] waiving a jury so 

I think – .” The trial court replies, “I know, but I’d still like to have a trial date.” A few 
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Case No. 22 JE 0025

moments later, defense counsel states, “[I am] waiving a jury.” The trial court responds, 

“Okay. That’s fine. I heard it all. I got it.” 

{¶39} On April 25, 2022, Appellant executed a written waiver of his right to a 

speedy trial. A scheduling order, which memorialized the consolidation of the cases and 

was issued that same day, reads, in relevant part, “Defendant waived his right to be tried 

by a Jury. A Bench Trial shall be conducted on Tuesday, July 19, 2022 at 9:00 A.M.”

{¶40} Roughly six months later, testimony and evidence was offered at the 

competency hearing held on October 13, 2022, and the trial court concluded Appellant 

was competent to stand trial that same day. At the bench trial on October 26, 2022, the 

trial court inquired, “Was there a waiver of his right to trial by jury filed?” Defense counsel 

responded, “Yes, there was. We did do a waiver, your Honor.” The state confirmed, 

“That’s been done, yeah.” (10/26/22 Trial Tr., p. 45-46.) 

{¶41} Although the omnibus motion contains a waiver of jury trial, it does not 

comport with the requirements of R.C. 2945.05. Most significantly, the motion is not 

signed by Appellant. Even if Appellant had signed the motion, his competency was not 

determined on April 5, 2022 when the motion was filed. Further, Appellant did not waive 

his right to a jury trial in open court. 

{¶42} “In a criminal case where the defendant elects to waive the right to trial by 

jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, 

filed in the criminal action and made part of the record thereof.” State v. Pless, 74 Ohio 

St.3d 333, 658 N.E.2d 766 (1996), paragraph one of the syllabus. “In the absence of 

strict compliance with R.C. 2945.05, a trial court lacks jurisdiction to try the defendant 

without a jury.” Id. However, Appellant must challenge the defective waiver on direct 

appeal. Id., paragraph two of the syllabus.

{¶43} The Ohio Supreme Court has consistently required strict compliance with 

the statutory requirements of R.C. 2945.05. In State v. Tate, 59 Ohio St.2d 50, 391 N.E.2d 

738 (1979), the Court made clear that “it must appear of record” that a defendant waived 

his right to a jury trial “in writing in the manner provided by R.C. 2945.05.” Id. at syllabus. 

{¶44} The Ohio Supreme Court again emphasized the need for strict compliance 

in State ex rel. Jackson v. Dallman, 70 Ohio St.3d 261, 638 N.E.2d 563 (1994), opining 

“[t]here must be strict compliance with R.C. 2945.05 for there to be a waiver of a right to 
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Case No. 22 JE 0025

a jury trial; where the record does not reflect strict compliance, the trial court is without 

jurisdiction to try the defendant without a jury.” Id. (granting writ of habeas corpus where 

uncertified written waiver was not filed and made a part of the record). 

{¶45} The following year, however, the Ohio Supreme Court appeared to move to 

a substantial compliance test, reversing the grant of a writ of habeas corpus where an 

executed written jury waiver was placed in the court file, but was not filed stamped and 

formally made a part of the record. In State ex rel. Larkins v. Baker, 73 Ohio St.3d 658, 

653 N.E.2d 701 (1995), the petitioner was convicted at a bench trial of aggravated murder, 

aggravated robbery, and attempted murder. The Larkins Court reasoned that the “failure 

to strictly comply with R.C. 2945.05 by not filing the executed written waiver was not the 

result of Larkins’s failure to properly waive his right to be tried by a jury and elect to be 

tried by the court. The evidence is uncontroverted that he did so. Instead, the failure to 

comply with R.C. 2945.05 was the result of an error on the part of the trial court to formally 

file the executed written waiver.” Id. at 661. The Ohio Supreme Court opined “the failure 

to strictly comply with R.C. 2945.05 under the circumstances here is neither a 

jurisdictional defect nor an error for which no adequate remedy at law exists. Larkin could 

have raised the error in his direct appeal.” (emphasis added) Id. at 660.

{¶46} However, the Ohio Supreme Court quickly returned to the strict compliance 

standard in Pless, supra. The Pless Court limited Larkins, stating “[a]lthough Larkins 

seemingly created an exception to the rule that failure to strictly comply with R.C. 2945.05 

deprives a court of jurisdiction to try a criminal defendant without a jury, the sole 

proposition for which Larkins stands is that a violation of R.C. 2945.05 is not the proper 

subject for habeas corpus relief.” Id. at 339 (emphasis in original). The second paragraph 

of the syllabus, which requires an invalid waiver claim to be raised on direct appeal, 

includes a parenthetical reference explaining the requirement “harmonize[s]” Pless with 

Larkins. That same year, on the authority of Pless, the Ohio Supreme Court reversed a 

conviction on direct appeal due to a failure to time-stamp the jury trial waiver form finding 

that the trial court did not have jurisdiction due to the invalid waiver. State v. Haught, 670 

N.E.2d 232, 1996-Ohio-353 (1996).

{¶47} Appellant correctly argues, and the state concedes, the waiver of jury trial 

in this case was invalid. Based on the second paragraph of the syllabus in Pless, 
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Case No. 22 JE 0025

Appellant further argues that the NGRI verdicts are voidable, not void, and therefore, 

double jeopardy prohibits retrial on all of the charges in the consolidated criminal cases.

{¶48} The void-sentence doctrine starts from the premise there are two types of 

sentencing errors: Errors that render the sentence void, and errors that render the 

sentence voidable. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 

248, ¶ 20. A defendant’s ability to challenge an entry at any time is the very essence of 

an entry being void, not voidable. Id. at ¶ 18. Where an entry is voidable, res judicata 

applies. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 

30.

{¶49} In Harper, the Ohio Supreme Court held “[a] sentence is void when a 

sentencing court lacks jurisdiction over the subject matter of the case or personal 

jurisdiction over the accused.” Harper at ¶ 42. In so holding, the Ohio Supreme Court 

provided the following explanation of subject matter jurisdiction:

Subject-matter jurisdiction refers to the constitutional or statutory power of 

a court to adjudicate a particular class or type of case. Pratts v. Hurley, 102 

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12, 34. “It is a 

‘condition precedent to the court’s ability to hear the case. If a court acts 

without jurisdiction, then any proclamation by that court is void.’ ” Id. at ¶ 11, 

quoting State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 

N.E.2d 1002 (1998). “A court’s subject-matter jurisdiction is determined 

without regard to the rights of the individual parties involved in a particular 

case.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 

21 N.E.3d 1040, ¶ 19. Rather, the focus is on whether the forum itself is 

competent to hear the controversy. See 18A Wright, Miller & Cooper, 

Federal Practice and Procedure, Section 4428, at 6 (3d Ed.2017) 

(“Jurisdictional analysis should be confined to the rules that actually allocate 

judicial authority among different courts”).

Article IV, Section 4(A) of the Ohio Constitution provides that “[t]here shall 

be a court of common pleas and such divisions thereof as may be 

established by law serving each county of the state,” and Article IV, Section 
– 16 –

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4(B) establishes that “[t]he courts of common pleas and divisions thereof 

shall have such original jurisdiction over all justiciable matters * * * as may 

be provided by law.” As we explained in State v. Aalim, “Article IV, Section 

4(B) of the Ohio Constitution grants exclusive authority to the General 

Assembly to allocate certain subject matters to the exclusive original 

jurisdiction of specified divisions of the courts of common pleas.” 150 Ohio 

St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 2.

The General Assembly exercised that power in enacting R.C. 2931.03, 

which provides that “[t]he court of common pleas has original jurisdiction of 

all crimes and offenses, except in cases of minor offenses the exclusive 

jurisdiction of which is vested in courts inferior to the court of common 

pleas.” Accordingly, “[j]urisdiction over all crimes and offenses is vested in 

the court of common pleas, general division, unless such jurisdiction 

specifically and exclusively is vested in other divisions of the court of 

common pleas or in the lower courts.” State ex rel. McMinn v. Whitfield, 27 

Ohio St.3d 4, 5, 500 N.E.2d 875 (1986). We have therefore recognized that 

pursuant to R.C. 2931.03, “a common pleas court has subject-matter 

jurisdiction over felony cases.” Smith v. Sheldon, 157 Ohio St.3d 1, 2019-

Ohio-1677, 131 N.E.3d 1, ¶ 8.

“ ‘Once a tribunal has jurisdiction over both the subject matter of an action 

and the parties to it, “* * * the right to hear and determine is perfect; and the 

decision of every question thereafter arising is but the exercise of the 

jurisdiction thus conferred * * *.” ’ ” (Ellipses added in Pizza.) Pratts, 102 

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, at ¶ 12, quoting State ex 

rel. Pizza v. Rayford, 62 Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), 

quoting Sheldon’s Lessee v. Newton, 3 Ohio St. 494, 499 (1854). And when 

a specific action is within a court’s subject-matter jurisdiction, any error in 

the exercise of that jurisdiction renders the court’s judgment voidable, not 

void. Id. at ¶ 12, 21. Generally, a voidable judgment may be set aside only 
– 17 –

Case No. 22 JE 0025

if successfully challenged on direct appeal. See State v. Payne, 114 Ohio 

St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.

Id. at ¶ 23-26.

{¶50} In Kuchta, supra, the Ohio Supreme Court recognized three types of 

jurisdiction, that is, jurisdiction over the subject matter, jurisdiction over the person, and 

jurisdiction over a particular case. Id. at ¶ 18. With respect to the third category, the Ohio 

Supreme Court observed:

A court’s jurisdiction over a particular case refers to the court’s authority to 

proceed or rule on a case that is within the court’s subject-matter 

jurisdiction. Pratts at ¶ 12. This latter jurisdictional category involves 

consideration of the rights of the parties. If a court possesses subjectmatter jurisdiction, any error in the invocation or exercise of jurisdiction over 

a particular case causes a judgment to be voidable rather than void. Id. at 

¶ 12.

Id. 

{¶51} The conclusion the NGRI verdicts are voidable, rather than void, is 

consistent with the Ohio Supreme Court’s holding in Pless that an invalid jury trial waiver 

may only be raised on direct appeal. Accordingly, we find the trial court failed to strictly 

comply with R.C. 2945.05, but the invalid waiver did not affect the trial court’s subject 

matter jurisdiction. The jury waiver relates to the rights of a party, not the trial court’s 

power to hear and resolve felony cases. As a consequence, the NGRI verdicts are 

voidable, not void. 

{¶52} Had the trial court entered guilty verdicts at the bench trial, the resolution of 

this appeal would be clear. The matter would be remanded for a jury trial. Had the trial 

court entered not guilty verdicts at the bench trial, no appeal would have been taken. 

However, the trial court entered NGRI verdicts, and as a consequence, we must 

determine whether NGRI verdicts, delivered by a court of competent jurisdiction and 

vacated due to an improper jury waiver, forecloses the state from retrying Appellant for 

the charges stated in the indictments. 
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Case No. 22 JE 0025

{¶53} The Fifth Amendment to the United States Constitution guarantees that no 

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” 

The Ohio Constitution contains a similarly-worded guarantee: “No person shall be twice 

put in jeopardy for the same offense.” Ohio Constitution, Article I, Section 10. In 

assessing whether a criminal defendant can be retried, the guiding principle is “[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.” 

Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

{¶54} Further, “[t]he constitutional protection against double jeopardy 

unequivocally prohibits a second trial following an acquittal.” State v. Hancock, 108 Ohio 

St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 139, quoting Arizona v. Washington, 434 

U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In Sanabria v. United States, 437 

U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), the Ohio Supreme Court observed:

That “ ‘(a) verdict of acquittal . . . (may) not be reviewed . . . without putting 

(the defendant) twice in jeopardy, and thereby violating the Constitution,’ ” 

has recently been described as “the most fundamental rule in the history of 

double jeopardy jurisprudence.” United States v. Martin Linen Supply Co., 

(Supra 430 U.S. at 571, 97 S.Ct. 1349), Quoting United States v. Ball, 163 

U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The fundamental nature 

of this rule is manifested by its explicit extension to situations where an 

acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. 

United States, (Supra, 369 U.S. at 143, 82 S.Ct. 671); See Green v. United 

States, (Supra 355 U.S. at 188, 78 S.Ct. 221). In Fong Foo the Court of 

Appeals held that the District Court had erred in various rulings and lacked 

power to direct a verdict of acquittal before the Government rested its case. 

We accepted the Court of Appeals’ holding that the District Court had erred, 

but nevertheless found that the Double Jeopardy Clause was “violated 

when the Court of Appeals set aside the judgment of acquittal and directed 

that petitioners be tried again for the same offense.” Ibid. Thus when a 

defendant has been acquitted at trial he may not be retried on the same 
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Case No. 22 JE 0025

offense, even if the legal rulings underlying the acquittal were erroneous. 

(Id. at 2178-79.)

Id. at 64.

{¶55} In City v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151, 

the Ohio Supreme Court discussed the expanding application of double jeopardy:

Historically, the common-law protection against double jeopardy applied 

only when a jury had rendered a verdict. See Smith v. Massachusetts, 543 

U.S. 462, 466, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). The protection has 

been extended, however, well beyond its common-law origins. See id. at 

467, 125 S.Ct. 1129; Crist v. Bretz, 437 U.S. 28, 34-35, 98 S.Ct. 2156, 57 

L.Ed.2d 24 (1978). The double-jeopardy principle now covers not only 

acquittals by a jury but also acquittals by a judge that are akin to a jury 

verdict. See Smith v. Massachusetts at 467, 125 S.Ct. 1129. Thus, a ruling 

by a trial judge that the evidence presented by the state is “insufficient to 

establish criminal liability for an offense” amounts to an acquittal and bars 

retrial. Evans v. Michigan, 568 U.S. 313, 318-319, 133 S.Ct. 1069, 185 

L.Ed.2d 124 (2013).

The protection has been extended further to prevent retrial after an 

appellate court determines that the evidence presented at trial was 

insufficient to convict. The “ordinar[y]” rule is that the double-jeopardy 

guarantee “does not prevent the government from retrying a defendant who 

succeeds in getting his first conviction set aside, through direct appeal or 

collateral attack, because of some error in the proceedings leading to 

conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 

265 (1988). But when an appellate court reverses for insufficiency of the 

evidence, the Double Jeopardy Clause bars retrial. Id. at 39, 109 S.Ct. 285; 

State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 18. 

The rationale is that “[b]ecause the Double Jeopardy Clause affords the 

defendant who obtains a judgment of acquittal at the trial level absolute 
– 20 –

Case No. 22 JE 0025

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.” (Emphasis sic.) 

Lockhart at 39, 109 S.Ct. 285.

In contrast, when an appellate court’s reversal is based on “trial error” – for 

example, an erroneous admission of evidence – the Double Jeopardy 

Clause does not bar retrial. Lockhart at 40, 109 S.Ct. 285; Brewer at ¶ 18. 

This is because, unlike a finding that the government failed to affirmatively 

prove its case, a reversal based on trial error simply means that the 

defendant “has been convicted through a judicial process which is defective 

in some fundamental respect.” Brewer at ¶ 18, quoting Lockhart at 40, 109 

S.Ct. 285.

Id. at ¶ 9-11.

{¶56} Relevant here, the United States Supreme Court has defined an acquittal 

to encompass any ruling that the prosecution’s proof is insufficient to establish criminal 

liability for an offense. See United States v. Scott, 437 U.S. 82, n. 11, 98 S.Ct. 2187, 57 

L.Ed.2d 65 (1978); Burks v. United States, 437 U.S. 1, 10, 98 S.Ct. 2141, 57 L.Ed.2d 1 

(1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 

L.Ed.2d 642 (1977). Therefore, an “acquittal” includes “a ruling by the court that the 

evidence is insufficient to convict,” a “factual finding [that] necessarily establish[es] the 

criminal defendant’s lack of criminal culpability,” and any other “rulin[g] which relate[s] to 

the ultimate question of guilt or innocence.” Scott, 437 U.S. at 91, 98, and n. 11, 98 S.Ct. 

2187 (internal quotation marks omitted). 

{¶57} “[T]he insanity defense goes to the very root of our criminal justice system 

and is founded on the broader principle that an insane person may not be held criminally 

responsible for his conduct.” State v. Curry, 45 Ohio St.3d 109, 112, 543 N.E.2d 1228 

(1989). “[O]ne, who does not know that his action is wrong * * * is not a proper subject for 

punishment.” Id., citing State v. Staten, 18 Ohio St.2d 13, 20, 247 N.E.2d 293 (1969), 

superseded by statute. 
– 21 –

Case No. 22 JE 0025

{¶58} While a NGRI verdict is an acknowledgment that an insanity acquittee 

cannot be held criminally liable for his actions, it is not, typically, followed by release, but 

instead by civil commitment to a mental health facility for treatment. Unlike criminal 

defendants who are confined for punishment, insanity aquittees are confined for treatment 

and safety.

{¶59} “Insanity is an affirmative defense that must be proven by a preponderance 

of the evidence.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, 

¶ 35; R.C. 2901.05(A) (“The burden of going forward with the evidence of an affirmative 

defense, and the burden of proof, by a preponderance of the evidence, for an affirmative 

defense other than self-defense, defense of another, or defense of the accused's 

residence * * * is upon the accused.”). “The accused must persuade the trier of fact that 

‘at the time of the commission of the offense, the [accused] did not know, as a result of a 

severe mental disease or defect, the wrongfulness of the [accused’s] acts.’ ” Hancock at 

¶ 35, quoting R.C. 2901.01(A)(14). “The weight to be given the evidence and the 

credibility of the witnesses concerning the establishment of the defense of insanity in a 

criminal proceeding are primarily for the trier of facts.” State v. Thomas, 70 Ohio St.2d 79, 

80, 434 N.E.2d 1356 (1982).

{¶60} With the foregoing case law in mind, we must determine whether an NGRI 

verdict constitutes a ruling by the trial court that the evidence is insufficient to convict, a 

factual finding that necessarily establishes the criminal defendant’s lack of criminal 

culpability, or any other ruling which relates to the ultimate question of guilt or innocence. 

See Scott, 437 U.S. at 91, 98, and n. 11, or whether Appellant has simply been convicted 

through a judicial process which is defective in some fundamental respect. See Brewer 

at ¶ 18, quoting Lockhart at 40, 109 S.Ct. 285.

{¶61} The mens rea element of each of the charged crimes here was “knowingly.” 

The Supreme Court of Ohio explained the interplay of mens rea and the insanity defense 

as follows:

“It is true, of course, that the existence of the required state of mind is to be 

determined subjectively in the sense that the issue must be resolved 

according to the particular circumstance of a given case. However, this fact 

may not be allowed to obscure the critical difference between the legal 
– 22 –

Case No. 22 JE 0025

concepts of mens rea and insanity. * * * The former refers to the existence 

in fact of a guilty mind; insanity, on the other hand, connotes a presumption 

that a particular individual lacks the capacity to possess such a state of 

mind. * * * The line between the sane and the insane for purposes of criminal 

adjudication is not drawn because for one group the actual existence of the 

necessary mental state (or lack thereof) can be determined with any greater 

certainty, but rather because those whom the law declares insane are 

demonstrably so aberrational in their psychiatric characteristics that we 

choose to make the assumption that they are incapable of possessing the 

specified state of mind.” 

State v. Wilcox, 70 Ohio St.2d 182, 191-192, 436 N.E.2d at 528-529 (quoting Bethea v. 

United States, 365 A.2d 64, 86-88 (D.C.App.1976)).

{¶62} No state or federal court has addressed the precise issue raised in the first 

assignment of error, that is, the application of double jeopardy to NGRI verdicts resulting 

from a bench trial conducted pursuant to an invalid jury waiver.2 However, McElrath v. 

State, 315 Ga. 126, 880 S.E.2d 518, cert. granted, 143 S.Ct. 2688, which is currently 

pending before the United States Supreme Court, provides some insight. 

{¶63} A jury found McElrath “guilty but mentally ill” as to felony murder (and 

aggravated assault), but “not guilty by reason of insanity” as to malice murder, in the brutal 

stabbing death of his mother. On appeal, the Georgia Supreme Court concluded the 

verdicts were repugnant, which rendered both verdicts void. As a consequence, the 

Georgia Supreme Court remanded both charges for retrial. 

{¶64} Following remand, McElrath argued double jeopardy prohibited retrial on 

the malice murder charge. On appeal, the Georgia Supreme Court concluded the 

repugnant verdicts failed to result in an event that terminated jeopardy, and thus, general 

principles of double jeopardy did not bar defendant’s retrial on the malice murder charge.

2

In State v. Janney, 55 Ohio App.2d 257, 380 N.E.2d 753 (1977), the Tenth District opined a 

finding of not guilty by reason of insanity is not a final judgment or order appealable to a Court of 

Appeals. Id. at syllabus. However, the opinion is predicated upon a prior version of R.C. 2945.39, 

which previously governed NGRI verdicts. The Janney Court found that the statutory language 

specifically limited an insane acquittee’s remedy to a writ of habeas corpus. 
– 23 –

Case No. 22 JE 0025

{¶65} In so holding, the Georgia Supreme Court reasoned:

The Fifth Amendment to the United States Constitution guarantees criminal 

defendants protection against double jeopardy. See U. S. Const. Amend. 

V. Likewise, the Georgia Constitution provides that “[n]o person shall be put 

in jeopardy of life or liberty more than once for the same offense except 

when a new trial has been granted after conviction or in case of mistrial.” 

Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII.3 The doctrine of double 

jeopardy encompasses both “procedural” and “substantive” aspects, the 

former barring multiple prosecutions for crimes arising from the same 

conduct, and the latter barring multiple punishments for such crimes. See 

Williams v. State, 307 Ga. 778, 779 (1), 838 S.E.2d 235 (2020). As the 

United States Supreme Court and this Court have previously noted, a 

fundamental principle of procedural double jeopardy is that a “verdict of 

acquittal is an absolute bar to a subsequent prosecution for the same 

offense.” Williams v. State, 288 Ga. 7, 8 (2), 700 S.E.2d 564 (2010) (citing 

Green v. United States, 355 U. S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 

(1957)). See also Bullington v. Missouri, 451 U. S. 430, 445 (IV), 101 S.Ct. 

1852, 68 L.Ed.2d 270 (1981); Burks v. United States, 437 U. S. 1, 16 (II), 

98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) 16 (II), 98 S.Ct. 2141, 57 L.Ed.2d 1 

(1978) (noting that “we necessarily afford absolute finality to a jury’s verdict 

of acquittal” (emphasis omitted)).

The bar against double jeopardy also encompasses the doctrine of 

collateral estoppel, which precludes the re-litigation of an ultimate fact issue 

that was determined by a valid and final judgment. See Giddens v. State, 

299 Ga. 109, 112-113 (2) (a), 786 S.E.2d 659 (2016). As the United States 

Supreme Court has explained,

3 Article I, Section 10 of the Ohio Constitution reads, in relevant part, “[n]o person shall be twice 

put in jeopardy for the same offense.”
– 24 –

Case No. 22 JE 0025

“[c]ollateral estoppel” is an awkward phrase, but it stands for an extremely 

important principle in our adversary system of justice. It means simply that 

when an issue of ultimate fact has once been determined by a valid and 

final judgment, that issue cannot again be litigated between the same 

parties in any future lawsuit.

(Emphasis supplied.) Ashe v. Swenson, 397 U. S. 436, 443, 90 S.Ct. 1189, 

25 L.Ed.2d 469 (1970). See also Roesser v. State, 294 Ga. 295, 296, 751 

S.E.2d 297 (2013) (“When there is ‘a critical issue of ultimate fact in all of 

the charges against [the defendant], a jury verdict that necessarily decided 

that issue in his favor protects him from prosecution for any charge for which 

that is an essential element.’ ”) (quoting Yeager v. United States, 557 U. S. 

110, 123 (II), 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).

Based on these principles, McElrath argues that the jury’s verdict of not 

guilty by reason of insanity as to the malice murder charge bars retrial as to 

that charge, as well as the other charges in the indictment. Under the 

general principles of double jeopardy and viewed in isolation, the jury’s 

purported verdict of not guilty by reason of insanity would appear to be an 

acquittal that precludes retrial, as not guilty verdicts are generally inviolate.

See Yeager, 557 U. S. at 122–123 (II), 129 S.Ct. 2360 (“Even if the verdict 

is based upon an egregiously erroneous foundation, its finality is 

unassailable.” (citation and punctuation omitted)); Richardson v. United 

States, 468 U. S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (“[T]he 

protection of the Double Jeopardy Clause by its terms applies only if there 

has been some event, such as an acquittal, which terminates the original 

jeopardy.”). Viewed in context alongside the verdict of guilty but mentally ill, 

however, the purported acquittal loses considerable steam. Because the 

verdicts were repugnant, both are rendered valueless. There is no way to 

decipher what factual finding or determination they represent, and McElrath 

cannot be said with any confidence to have been found not guilty based on 

insanity any more than it can be said that the jury made a finding of sanity 
– 25 –

Case No. 22 JE 0025

and guilt with regard to the same conduct. See McElrath, 308 Ga. at 111 (2) 

(c), 839 S.E.2d 573 (“Where a jury renders repugnant verdicts, both verdicts 

must be vacated and a new trial ordered for the same reasons applicable 

to mutually exclusive verdicts.”) (citing Dumas v. State, 266 Ga. 797, 471 

S.E.2d 508 (1996))). Thus, the repugnant verdicts failed to result in an event 

that terminated jeopardy, akin to a situation in which a mistrial is declared 

after a jury is unable to reach a verdict. Cf. Richardson, 468 U. S. at 325-

326, 104 S.Ct. 3081 (holding that a retrial following a hung jury generally 

does not violate the Double Jeopardy Clause because the jury’s failure to 

reach a verdict does not terminate the original jeopardy). Accordingly, the 

general principles of double jeopardy do not bar McElrath’s retrial on the 

malice murder charge.

But that does not end our analysis. McElrath has further argued that the 

doctrine of collateral estoppel, which is encompassed by the prohibition 

against double jeopardy, would also bar retrial. We disagree.

As detailed in Division 1 above, the verdicts returned by the jury were 

repugnant, and “any judgment and sentence entered on repugnant verdicts 

are void.” See State v. Owens, 312 Ga. 212, 216 (1) (a), 862 S.E.2d 125 

(2021) (“In considering whether verdicts were repugnant and thus void, we 

have held that no valid judgment may be entered on a void verdict.” 

(emphasis supplied; citations and punctuation omitted)). Simply stated, a 

repugnant verdict of the sort rendered in McElrath’s first trial is no verdict at 

all because it did not “represent[ ] a resolution, correct or not, of some or all 

of the factual elements of the offense charged.” United States v. Martin 

Linen Supply Co., 430 U. S. 564, 571 (II), 97 S.Ct. 1349, 51 L.Ed.2d 642 

(1977). And collateral estoppel only applies once there has been a valid and 

final judgment. See Ashe, 397 U. S. at 443, 90 S.Ct. 1189 (noting that a 

“valid and final judgment” is required before collateral estoppel bars retrial).

(Emphasis added) Id. at 128-131.
– 26 –

Case No. 22 JE 0025

{¶66} Although not directly on point, McElrath informs our decision on two key 

issues. First, the Georgia Supreme Court recognizes that a valid and final judgment of a 

trial court finding a defendant not guilty by reason of insanity is an acquittal, 

indistinguishable from a standard acquittal despite the fact that an insanity acquittee is 

subject to commitment for treatment and safety. McElrath further stands for the 

proposition that neither double jeopardy nor collateral estoppel applies to a void judgment. 

Accordingly, McElrath supports Appellant’s argument that the Order on the NGRI verdicts 

are valid and final judgments, which constitute acquittals prohibiting a new trial on the 

charges.

{¶67} The Supreme Court of Colorado reached a similar conclusion in People v. 

Serravo, 823 P.2d 128, 141 (Colo.1992). In that case, the Colorado Supreme Court 

reversed Serravo’s NGRI verdict based on an improper jury instruction, which advocated 

a subjective rather than objective definition of “right and wrong.” Based on a United States 

Supreme Court case holding that a reversal on appeal for insufficiency of the evidence 

prohibits retrial, Burks, supra, the Colorado Supreme Court concluded double jeopardy 

prohibited Serravo’s retrial:

Because Burks holds that an appellate determination of evidentiary 

insufficiency to sustain a verdict is an adjudication on the merits that bars 

retrial, it necessarily follows that the Double Jeopardy Clause of the United 

States Constitution prohibits retrial after a jury verdict of not guilty by reason 

of insanity. Such a verdict represents a judicial determination that, 

irrespective of any error in a trial court’s instructional rulings, the prosecution 

has failed to prove the defendant’s sanity beyond a reasonable doubt and 

that, consequently, the defendant lacked the mental capacity to commit the 

crime charged against him. See United States v. Scott, 437 U.S. 82, 97-98, 

98 S.Ct. 2187, 2197–98, 57 L.Ed.2d 65 (1978) (noting that, for purposes of 

Double Jeopardy Clause, post-jeopardy dismissal based on insufficiency of 

prosecution’s evidence relating to insanity defense, as distinguished from 

post-jeopardy dismissal based on preindictment delay, constitutes a finding 

of lack of criminal liability even though such finding results from erroneous 

evidentiary ruling or erroneous interpretation of governing legal principles). 
– 27 –

Case No. 22 JE 0025

Allowing a retrial on the issue of a defendant’s sanity after the jury has 

returned a verdict of not guilty by reason of insanity is nothing less than 

giving the state the impermissible “second bite at the apple.” Burks, 437 

U.S. at 17, 98 S.Ct. at 2149.

Id. at 141.

{¶68} In People v. Harrison, 366 Ill.App.3d 210, 851 N.E.2d 152 (2006), the Illinois 

Supreme Court held that an NGRI verdict is an acquittal. It is important to note that Illinois 

has express constitutional prohibitions against appeals of judgments of acquittals. 

Harrison was found not guilty by reason of insanity, but filed an appeal asserting 

ineffective assistance of counsel and insufficient evidence supporting the NGRI verdict. 

The Illinois Supreme Court dismissed Harrison’s appeal holding that his remedy was to 

raise a challenge to his confinement through the commitment statute. The Harrison Court 

opined:

An NGRI verdict, then, is equivalent to an acquittal. It is strictly a finding 

that the defendant is not guilty, in the same manner as any other acquittal 

which renders a defendant discharged from any liability as, for example, 

when a defendant receives a directed verdict, when a mistrial is declared 

and the defendant is not prosecuted again, or when a jury for whatever 

reason determines that the defendant should be absolved from any 

obligation related to the alleged crime. Merely because the reason behind 

a defendant’s release from responsibility is a successful claim of insanity 

should not produce a different outcome; after all, the effect is the same since 

the defendant has avoided liability. See, e.g., Adams, 35 Ill.App.3d at 814, 

343 N.E.2d 659 (a defendant acquitted due to insanity “is entitled to all the 

protection and constitutional rights as if acquitted on any other ground”). As 

such, it is imperative to note perhaps the most basic tenant of our federal

and state constitutions: a defendant who has been acquitted and declared 

not guilty may not be retried on the same offense and his verdict cannot be 

reviewed. See Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 
– 28 –

Case No. 22 JE 0025

2179, 57 L.Ed.2d 43, 54 (1978) (this is true even if the legal rulings 

underlying the acquittal were in error); United States v. Martin Linen Supply 

Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642, 651 (1977), 

relying on United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 

(1896); accord Crilly, 108 Ill.2d at 312-13, 91 Ill.Dec. 601, 483 N.E.2d 1236 

(discussing and applying these federal cases to our state); see also Ill. 

Const.1970, art. VI, § 6 (no appeal may be taken from judgment of 

acquittal). Therefore, because an NGRI verdict is an acquittal, we cannot 

review defendant’s cause here.

Id. at 215.

{¶69} Insofar as the Ohio Supreme Court in Wilcox, supra, opined that an insane 

acquitee is “incapable of possessing the specified [guilty] state of mind,” we conclude the 

trial court’s NGRI verdicts constitute a finding there was insufficient evidence to prove the 

mens rea element of the charged crimes. Our conclusion is consistent with United States 

Supreme Court precedent that an “acquittal” includes “a ruling by the court that the 

evidence is insufficient to convict,” a “factual finding [that] necessarily establish[es] the 

criminal defendant’s lack of criminal culpability,” and any other “rulin[g] which relate[s] to 

the ultimate question of guilt or innocence.” Scott, 437 U.S. at 91, 98, and n. 11, 98 S.Ct. 

2187 (internal quotation marks omitted). 

{¶70} Moreover, the fact that the NGRI verdicts resulted from a bench trial without 

a valid jury waiver does not constitute simple error permitting retrial. In Fong Foo, supra,

the Court of Appeals held the District Court had erred in various rulings and lacked power 

to direct a verdict of acquittal before the government rested its case. Nonetheless, the 

United States Supreme Court concluded that double jeopardy prohibited retrial. Like the 

district court in Fong Foo, the trial court in this case was a court of competent jurisdiction 

that entered verdicts of acquittal despite a lack of power due to the invalid jury waiver. 

Despite the error, the trial court concluded there was insufficient evidence to prove the 

mens rea elements of the charged crimes. Therefore, like Fong Foo, Appellant cannot 

be retried. 
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Case No. 22 JE 0025

{¶71} Accordingly, we find Appellant’s first assignment of error has merit. The 

NGRI verdicts are vacated as Appellant did not waive his right to a jury trial. Further, the 

Order entering the NGRI verdicts constitutes an acquittal, that is, a finding by the trial 

court there was insufficient evidence to prove the mens rea element of the charged 

crimes, as well as a factual finding that necessarily establishes the criminal defendant’s 

lack of criminal culpability. Therefore, jeopardy attached to the Order and double 

jeopardy prohibits Appellant’s retrial.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED 

[APPELLANT’S] STATE AND FEDERAL RIGHTS TO DUE PROCESS 

OF LAW IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR NO. 3

[APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE 

EFFECTIVE ASSISTANCE OF COUNSEL.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT LACKED JURISDICTION TO ENTERTAIN THE 

STATE’S MARCH 13, 2023 DESIGNATION OR MODIFICATION OF 

[THE] RECORD PURSUANT TO APP.R. 9(E).

{¶72} Because Appellant’s first assignment of error is meritorious, his remaining 

assignments of error are moot.
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CONCLUSION

{¶73} For the foregoing reasons, the NGRI verdicts are vacated. Further, double 

jeopardy prohibits Appellant’s retrial on the charged counts.

Robb, J., concurs.

Hanni, J., concurs.
[Cite as State v. Street, 2023-Ohio-4405.]

For the reasons stated in the Opinion rendered herein, the first assignment of 

error is sustained and it is the final judgment and order of this Court that the judgments

of the Court of Common Pleas of Jefferson County, Ohio, are vacated. Further, double 

jeopardy prohibits Appellant’s retrial on the charged counts. Costs to be taxed against 

the Appellee.

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.