[Cite as State v. Jones, 2012-Ohio-920.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96901

STATE OF OHIO

PLAINTIFF-APPELLANT 

vs. 

DEMETRIUS JONES

DEFENDANT-APPELLEE 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-524453 

BEFORE: Cooney, J., Jones, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: March 8, 2012 
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ATTORNEYS FOR APPELLANT

William D. Mason 

Cuyahoga County Prosecutor 

By: Matthew E. Meyer 

Assistant County Prosecutor 

8th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

David L. Doughten 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

James J. McDonnell 

75 Public Square 

Suite 700 

Cleveland, Ohio 44113-2001 
3

COLLEEN CONWAY COONEY, J.: 

{¶1} Plaintiff-appellant, the state of Ohio (“the State”), appeals the trial court’s 

granting a motion for a new trial filed by defendant-appellee, Demetrius Jones (“Jones”), 

after a jury rendered two seemingly inconsistent verdicts. We find merit to the appeal 

and reverse. 

{¶2} Jones was charged 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 homicide of his girlfriend’s one-year-old baby. 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 2903.04(A)(9) of the 

Revised Code.” The felonious assault count alleged that Jones “did knowingly cause 

serious physical harm to [C.G.].” 

{¶3} In its charge, the court instructed the jury on separate counts as follows: 

Consider the counts separately. Okay. The charges set forth in each count 

in the indictment constitute a separate and distinct matter. You must 

consider each count and the evidence applicable to each count separately. 

And you must state your finding as to each count uninfluenced by your 

verdict as to the other count. The defendant may be found guilty or not 

guilty of any one or all of the offenses charged. 

* * * 

You can consider — when you think about the multiple counts, it’s possible 

you could have differing verdicts. Do you understand? That comes from 

me. That’s the law. That’s what that whole consider the counts separately 

instruction is about. 
4

{¶4} The jury returned a guilty verdict on the murder count, but not guilty on the 

felonious assault count. Jones moved for acquittal and/or for a new trial. He argued 

that the acquittal on the felonious assault count is inconsistent with a guilty verdict on the 

murder count because felonious assault is an element of the murder count. The court 

granted the motion, and this appeal followed. 

{¶5} In its sole assignment of error, the State argues the trial court abused its 

discretion in granting Jones a new trial because Ohio law precludes a finding of 

inconsistency between a jury’s verdicts for multiple counts within the same indictment. 

We agree. 

{¶6} A trial court’s decision granting a motion for new trial will not be reversed on 

appeal absent an abuse of that discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 

N.E.2d 54 (1990), paragraph one of the syllabus. To find an abuse of discretion, we 

must find that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶7} Ever since the United States Supreme Court decided the seminal case of 

United States v. Dunn, 284 U.S. 390, 52 S.Ct. 189 (1932), Ohio courts have held that “a 

verdict that convicts a defendant of one crime and acquits him of another, when the first 

crime requires proof of the second, may not be disturbed merely because the two findings 

are irreconcilable.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 
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995, ¶ 81. See also State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 

1047; State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978). 

{¶8} In Dunn, Justice Holmes announced that “[c]onsistency in the verdict is not 

necessary.” Dunn at 393. The Supreme Court upheld Dunn’s conviction of “maintaining 

a common nuisance by keeping for sale at a specified place intoxicating liquor,” even 

though that conviction was inconsistent with his acquittals on charges for unlawful 

possession and unlawful sale of liquor. Id. at 391-394. The Dunn Court explained that 

lenity is an appropriate jury power, and while a verdict may result from compromise or 

mistake on the part of the jury, a judge should not upset the verdict by speculation into 

such matters. Id. at 394. The Dunn Court concluded that the acquittal resulted from the 

jury’s lenity, and therefore, the jury’s verdict did not necessarily “‘show that they were 

not convinced of the defendant’s guilt.”’ Id. at 393, quoting U.S. v. Steckler, 7 F.2d 59, 60 

(2d Cir. 1925). 

{¶9} “‘[I]nconsistent verdicts — even verdicts that acquit on a predicate offense 

while convicting on the compound offense — should not necessarily be interpreted as a 

windfall for the Government at the defendant’s expense.’” Gardner at ¶ 81, quoting U.S. 

v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). “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.” State v. Woodson, 24 Ohio App.3d 143, 
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144, 493 N.E.2d 1018 (10th Dist.1985), citing Powell at 65. When the defendant 

receives the benefit of an acquittal on one count, it is not unjust to require the defendant 

to accept the jury’s conviction on the second related count. Powell at 69. In reaffirming 

the rule established in Dunn and rejecting the defendant’s argument, the Powell court 

explained: 

[T]he possibility that the inconsistent verdicts may favor the criminal 

defendant as well as the Government militates against review of such 

convictions at the defendant’s behest. This possibility is a premise of 

Dunn’s alternative rationale — that such inconsistencies often are a product 

of jury lenity. Thus Dunn has been explained by both courts and 

commentators as a recognition of the jury’s historical function, in criminal 

trials, to check against arbitrary or oppressive exercises of power by the 

executive branch. 

 * * * 

We also reject, as imprudent and unworkable, a rule that would allow 

criminal defendants to challenge inconsistent verdicts on the ground that in 

their case the verdict was not the product of lenity, but of some error 

worked against them. Such an individualized assessment of the reason for 

inconsistency would be based either on pure speculation, or would require 

inquiries into the jury’s deliberations that courts generally will not 

undertake. 

* * * 

Second, respondent’s argument that an acquittal on a predicate offense 

necessitates a finding of insufficient evidence on a compound felony count 

simply misunderstands the nature of the inconsistent verdict problem. 

Whether presented as an insufficiency evidence argument, or as an 

argument that the acquittal on the predicate offense should collaterally estop 

the Government on the compound offense, the argument necessarily 

assumes that the acquittal on the predicate offense was proper — the one 

the jury “really meant.” This, of course, is not necessarily correct; all we 

know is that the verdicts are inconsistent. The Government could just as 
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easily — and erroneously — argue that since the jury convicted on the 

compound offense the evidence on the predicate offense must have been 

sufficient. Powell at 66-67. 

{¶10} Furthermore, the Fifth Amendment prohibition against double jeopardy 

prevents the government from objecting to any such acquittal. Green v. U.S., 355 U.S. 

184, 188 (1957), citing U.S. v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 

(1896) (noting that the government cannot appeal an acquittal even if it appears 

erroneous). It would be unfair for the defendant to have the right to appeal an 

inconsistent verdict when it suits him, when the government may not. Moreover, the 

Powell court observed that defendants receive adequate protection against jury 

irrationality or error by a sufficiency of the evidence review at the trial and appellate 

levels. Powell at 68. 

{¶11} The jury found Jones guilty of Count 1, which states 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.” By finding 

Jones guilty of Count 1, the jury had to have found that Jones killed the victim by 

committing a felonious assault upon him. The felonious assault element is included in 

the count itself. The fact that the jury acquitted Jones of Count 2, which alleged 

felonious assault alone, is not necessarily inconsistent. The court instructed the jury to 

consider the counts separately. Once the jury found Jones guilty of murder, which 
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included the felonious assault, the second count of felonious assault could have been 

viewed as redundant. 

{¶12} The sole assignment of error is sustained. 

{¶13} Accordingly, we reverse the trial court’s judgment granting Jones a new 

trial and order the trial court to reinstate his murder conviction. 

It is ordered that appellant recover of said appellee 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 common 

pleas court to carry this judgment into execution. 

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

the Rules of Appellate Procedure. 

______________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

LARRY A. JONES, SR., P.J., and 

SEAN C. GALLAGHER, J., CONCUR