[Cite as State v. Jones, 2013-Ohio-572.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98209

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DEMETRIUS JONES

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-524453 

 BEFORE: Blackmon, J., Celebrezze, P.J., and Kilbane, J. 

 RELEASED AND JOURNALIZED: February 21, 2013
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ATTORNEY FOR APPELLANT 

Rufus Sims 

75 Public Square 

Suite 1111 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mark J. Mahoney 

Katherine Mullin 

Assistant County Prosecutors 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
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PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Demetrius Jones (“Jones”) appeals his conviction for murder and 

assigns the following error for our review: 

I. Where a defendant is convicted of murder pursuant to R.C. 

2903.02(B), and felonious assault is both the key element of the offense 

and the predicate, the conviction must be overturned where the jury 

acquitted the defendant of the separate charge of felonious assault.

{¶2} Having reviewed the record and pertinent law we affirm Jones’s conviction. 

 The apposite facts follow. 

Facts

{¶3} The Cuyahoga County Grand Jury charged Jones with one count of murder 

in violation of R.C. 2903.02(B), and one count of felonious assault in violation of R.C. 

2903.11(A)(1). The charges arose from the murder of his girlfriend’s one-year-old baby 

who was left in Jones’s care. 

{¶4} The murder count alleged that Jones “did cause the death of [C.G.], as a 

proximate result of the offender committing or attempting to commit an offense of 

violence that is a felony of the first or second degree, to wit: felonious assault, in 

violation of Section 2903.02 of the Revised Code.” The felonious assault count alleged 

that Jones “did knowingly cause serious physical harm to [C.G.].” The jury returned a 

guilty verdict on the murder count, but not guilty on the felonious assault count. Jones 

moved for an acquittal and/or new trial. He argued that the acquittal on the felonious 

assault count was inconsistent with the verdict on the murder count because felonious 
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assault is an element of the murder count. The trial court granted the motion, and the 

state appealed. 

{¶5} This court in State v. Jones, 8th Dist. No. 96901, 2012-Ohio-920, reversed 

the trial court’s granting of the motion. Relying on well established precedent, we held 

that “‘a verdict that convicts a defendant of one crime but acquits him of another, even 

when the first crime requires proof of the second, may not be disturbed merely because 

the two findings are irreconcilable.’” Id. at ¶ 7, quoting U.S. v. Powell, 469 U.S. 57, 

65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). We explained, “it is equally possible that the 

jury, convinced of guilt, properly reached its conclusion on the compound offense, and 

then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the 

lesser offense.” Jones at ¶ 9. 

{¶6} On remand, the trial court reinstated the conviction and sentenced Jones to 

15 years to life. 

Res Judicata

{¶7} In his assigned error, Jones contends that his conviction was against the 

manifest weight of the evidence because the jury found him not guilty of the separate 

offense of felonious assault; therefore, he contends he did not have the mens rea 

necessary to commit the felony-murder offense that was predicated on felonious assault. 

{¶8} We conclude that res judicata prevents Jones from raising these arguments. 

This court has already held that his conviction for murder could stand in spite of the fact 

the jury found him not guilty of felonious assault. Jones is attempting to appeal our prior 
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decision by filing another appeal because he is attempting to reargue that a defendant 

cannot be found guilty of felony-murder and not guilty of a separate charge for the 

predicate offense. The law of the case doctrine precludes us from altering our prior 

decision. The law of the case doctrine provides that the decision of a reviewing court in 

a case remains the law of the case on the legal questions involved for all subsequent 

proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio 

St.3d 1, 3, 462 N.E.2d 410 (1984); State v. Frazier, 8th Dist. No. 95814, 

2011-Ohio-2927. 

{¶9} Additionally, res judicata also prevents our review of Jones’s argument. 

“Where an argument could have been raised on an initial appeal, res judicata dictates that 

it is inappropriate to consider that same argument on a second appeal following remand.” 

State v. D'Ambrosio, 73 Ohio St.3d 141, 143, 1995-Ohio-129, 652 N.E.2d 710. Accord

State v. Gillard, 78 Ohio St.3d 548, 549, 1997-Ohio-183, 679 N.E.2d 276 (on appeal after 

remand, “new issues” are barred by res judicata). He could have filed a cross-appeal in 

the first appeal in order to preserve his arguments, but failed to do so. Gillard, 78 Ohio 

St.3d at 549 (because the appellant failed to raise these issues in his cross-appeal when 

his conviction was affirmed, his arguments are barred by res judicata.) Accordingly, 

Jones’s sole assigned error is overruled. 

{¶10} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 
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It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. The defendant’s conviction having been affirmed, any bail pending appeal is 

terminated. Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

MARY EILEEN KILBANE, J., CONCUR