[Cite as State v. Stargell , 2021-Ohio-2057.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellant

v. ROBERT STARGELL Defendant-Appellee : : : : : : : : : : Appellate Case No. 28928 Trial Court Case No. 2019-CR-2827 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 18th day of June, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellant ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellee

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WELBAUM, J.-2- {¶ 1} Plaintiff-Appellant the State of Ohio appeals from a trial cour t order granting Defendant-Appellee Robert Stargell’s motion to modify the jury’ s verdict in his criminal trial. According to the State, the trial court abused its disc retion and erred in applying Crim.R. 33(A)(4) when it modified the jury’s verdict from a con viction for felonious assault to a conviction for assault. We agree. {¶ 2} However, we conclude that the State is not entitled to pursue a discretionary appeal under R.C. 2945.67(A), and that our prior allowance of t he State’s appeal, therefore, was improvidently granted. Specifically, the order modifying the verdict was a final verdict from which the State may not appeal. Accordingly , the appeal will be dismissed, and our prior decision giving the State leave to app eal will be vacated.

I. Facts and Course of Proceedings {¶ 3} On September 19, 2019, an indictment was filed charging Stargel l with the following offenses: one count of felonious assault (deadly weap on), a second-degree felony; one count of recklessly discharging a firearm on or nea r prohibited premises (serious physical harm), a third-degree felony; one count of ha ving weapons under disability (prior drug convicti on), a third-deg ree felony; one count of having weapons under disability (prior offense of violence), a third-degree fe lony; and one count of violation of a protection order, a first-degree misdemeanor. T he felonious assault and reckless discharge of a firearm counts also included firearm sp ecifications. {¶ 4} The charges arose from an incident that occurred on August 23, 2019, on Gramont Avenue in Dayton, Ohio. Previously, in June 2019, Star gell and Jerita Pooler had ended their romantic relationship. About two months later, Jerita began dating-3- Robert West. At the time of the incident, Jerita, West, and Je rita’s son, C.H., were staying at the home of Jerita’s stepmother, Irmela Pooler. Tra nscript of Proceedings (Jury Trial) (“Tr.”), p. 33-35 and 116-117. {¶ 5} After getting off work on August 23, 2019, Jerita was sitting o utside with Irmela, C.H., and West. At that time, Jerita saw a Facebook vi deo that concerned her. Stargell had posted the video and had called Jerita and West “b itches,” “clowns,” and other names. Id . at p. 39-40. Subsequently, around 5:00 or 6:00 p.m., Stargel l drove by the house but did not stop. Id . at p. 54-55. {¶ 6} Later in the evening, Jerita was sitting outside in her car, wh ich was parked in the driveway. It was dark outside. Jerita was sitting in t he driver’s seat, West was in the front passenger seat, and C.H. was in the back seat. Id . at p. 45, 46, 55-56, 60, and 71. At that time, Stargell approached in a different car, and someone else was driving. When the car pulle d up, Stargell had a mask over his face and p ointed a gun at Jerita. It looked like a white gun with a red light, like a laser light, b ut she did not see the handle.
Id . at p. 45, 56, and 59. {¶ 7} The laser was pointed at Jerita, and she heard Stargell say, “N o, not her.” The car pulled down a little bit, to where West was sitting, an d the laser was pointed at West. Tr. at p. 58 and 60. The car then pulled further down t he street. At that point, Jerita got out of her car. West also got out of the car, to tr y and calm Jerita down. Id

. at p. 61. However, the keys were still in Jerita’s car, and C. H. took off in the car, following the car in which Stargell was riding. Id . at p. 61. {¶ 8} Jerita stood outside at first, and then ran into the house, sho uting for her stepmother to call the police. Id . at p. 61-62. Both Jerita and Irmela called 911. Id.-4- Five or ten minutes later, C.H. returned and parked the car at a 45-degree angle in front of the driveway. Id . at p. 47, 63, and 89. Two shots were then heard being fired in the alley behind the house, but no one saw who fired the shots. Id . at p. 48-50, 67, 91, 92, 104, 105, and 122. {¶ 9} At this point, Jerita was outside, standing in the grass by the front door, and West was by Jerita’s car. Stargell emerged on foot from the al ley, looked at Jerita, and said, “I oughta shoot you, bitch.” Id . at p. 47, 65, and 92. He then said, “Where that n****r at?” Id . at p. 65 and 91-92. Jerita told Stargell that he was “over t here,” and Stargell began chasing West around Jerita’s car. Id

. {¶ 10} When the chas e began, West was at the driver’s door of the car. The sunroof and all the car windows were down. Stargell walked up to the passenger side of the car, with his gun cocked, and said, “Bitch, didn’t I tel l you I was going to kill you.” Tr. at p. 93-94. West ducked, and Stargell shot at him through the passenger window.
Id . at p. 95. According to both West and Jerita, C.H. was across the street videoing everything when this happened. West insisted that the video sh owed the shooting. Id

. at p. 51, 65, 77, 95, 102, and 106. However, the video did not show any shooting. Id

. at p. 106-109. West was also unable to identify the color of t he gun, although Jerita testified that it was the same white gun she saw Stargell with earlier. Id . at p. 69 and 102. {¶ 11} According to Jerita and West, after the first shot, Stargell ch ased West around the car several times. During this process, the gun jam med, and Stargell then left on foot. Id . at p. 48, 51, 65, 74, 95, and 96-97. {¶ 12} Following the 911 calls, Dayton Police Officer Bryan Camden and other-5- officers arrived at the scene. When Camden arrived, he saw two men (Stargell and C.H.) in the middle of the street, yelling, screaming, and walking ba ck and forth. They were
very angry. Id . at p. 135. After Camden separated the men, he spoke with Jer ita, who told him what had happened. Camden directed other officers to locations to look for evidence. Id . at p. 137. {¶ 13} While Camden spoke with Jerita, other officers were walking aro und, checking for evidence. Three officers were looking for shell c asings, but they did not find any. No one found any physical evidence at the scene. Id . at p. 136 and 138-139. The officers looked with flashlights in the driveway and in the she d and garage area, but found nothing. Id . at p. 139. To Camden’s knowledge, no officers found bullet h oles in Jerita’s vehicle, on the house, or on a residence across the street. No bullet holes were found anywhere in the vicinity. Id . at p. 141. {¶ 14} That evening, Camden contacted his supervisor to ask for resour ces to use in helping to find shell casings. The Bureau of Alcohol, Tobac co and Firearms (ATF) has dogs that are trained to sniff out firearm-related materials, b ut a supervisor, rather than a street officer, must ask for this assistance. However, the ATF never responded. Id . at 142-143. {¶ 15} Stargell was indicted on September 19, 2019, for felonious assa ult and other firearm-related violations and specifications. Following Stargell’s not guilty plea, a jury trial was held on August 26 and 27, 2020. During the tria l, the State presented the testimony of Jerita, West, Irmela, and Officer Camden; the defe nse did not call any witnesses. After hearing the testimony, the jury found Stargel l guilty of felonious assault and violating the protective order but found him not guilty of the rest of the charges,-6- including all gun-related charges and the firearm specification s. Tr. at p. 201-202. During a sidebar, the judge noted that the verdicts were incons istent and allowed both sides to reserve their objections or to file any motions they w ished. Id . at p. 203-204. The judge then discharged the jury. Id . at p. 204-205. {¶ 16} On September 2, 2020, Stargell filed a motion for acquittal und er Crim.R. 29(C) and, in the alternative, a motion under Crim.R. 33(A)(4) to modify the verdict of felonious assault to assault. The court then set submission da tes, including allowing the State to file a memorandum in response no later than September 16, 2020. However, the State did not file a response. Subsequently, on September 21, 2020, the court granted the motion to modify the verdict and reduced the feloni ous assault conviction to a conviction for assault, a first-degree misdemeanor. The cour t also set a sentencing hearing for September 29, 2020. {¶ 17} On September 30, 2020, the court filed a judgment entry sentenc ing Stargell to 180 days in the Montgomery County Jail for assault, and 180 days in jail for violation of the protective order, with the terms to be served consecutiv ely. However, since Stargell had already served 373 days in jail, the court conclud ed that the sentence had been satisfied. See Termination Entry at p. 1, and Order Granting Motion to Modify Verdict. On October 1, 2020, the State filed a notice of appea l from the judgment. {¶ 18} The State then filed a motion with our court on October 1, 2020 , asking for leave to appeal pursuant to R.C. 2945.67(A) and App.R. 5(C). W e granted the State’s motion on December 3, 2020. See Decision & Entry (Dec. 3, 2020).

II. Discussion-7- {¶ 19} The State’s sole assignment of error states: The Trial Court Abused Its Discretion and Erred in Its Applicat ion of Crim.R. 33(A)(4) When It Modified the Jury’s Verdict, Which Had Found Stargell Guilty of Felonious Assault. {¶ 20} Under this assignment of error, the State makes two main points . The first is that the trial court erred because the jury verdicts were no t legally inconsistent. According to the State, the jury’s negative finding on the fire arm specifications and other charges did not invalidate the guilty verdict for felonious ass ault because inconsistency in verdicts arises only when juries give inconsistent responses to the same count. In addition, with respect to this argument, the State stresses tha t the not guilty finding on the specification to felonious assault could not change the finding on the principal charge because a specification is considered after and in addition to the finding of guilt on the principal charge. {¶ 21} The State’s second argument (also used in connection with its f irst argument) is that the trial cour t twice overruled Stargell’s Cr im.R. 29 motion for acquittal. Because the review standards for new trial motions and Crim.R. 29 motions are the same, the State argues that there is no legitimate reason why the sam e evidence was not sufficient for purposes of overruling Stargell’s motion to modi fy the verdict. {¶ 22} Before we address the State’s arguments, we must consider wheth er we have jurisdiction over this appeal. This is an issue that we c an raise on our own initiative.
Barton v. Barton , 2017-Ohio-980, 86 N.E.3d 937, ¶ 45 (2d Dist.); State v. Morris , 2d Dist. Clark No. 07-CA-112, 2008-Ohio-4744, ¶ 17. Specifically, we wo uld not have jurisdiction to entertain the appeal if the trial court issued a final verdi ct. State v. Bunce , 10th Dist.-8- Franklin No. 92AP-783, 1993 WL 55186, *1 (Mar. 2, 1993), citing State ex rel. Yates v. Court of Appeals for Montgomery Cty. , 32 Ohio St.3d 30, 512 N.E.2d 343 (1987). {¶ 23} In the case before us, the State moved for leave to appeal unde r R.C. 2945.67, which provides, in pertinent part, that: (A) A prosecuting attorney, village solicitor, city director o f law, or the attorney general may appeal * * * by leave of the court to which the appeal is taken any other decision, except the final verdict, o f the trial court in a criminal case or of the juvenile court in a delinquency ca se. {¶ 24} The Supreme Court of Ohio has held that judgments of acquittal under both Crim.R. 29(A) and (C) are final verdicts that the State may not appeal pursuant to R.C. 2945.67(A). See Yates at 32-33, and State v. Keeton , 18 Ohio St.3d 379, 481 N.E.2d 629 (1985). In Yates , the court rejected the State’s attempt to distinguish between these two types of acquittals. In this regard, the court stressed th at “[t]he judgment of acquittal in the case sub judice , though entered after a jury verdict and upon the authority of Crim.R. 29(C), was grounded upon insufficiency of evidence. It is a factual determination of innocence and as much a final verdict as any judgment of acq uittal granted pursuant to Crim.R. 29(A).” (Footnote omitted.) Id

. {¶ 25} The trial court’s decision in the case before us was not issued under Crim.R. 29, but was based on Crim.R. 33(A), which provides, in pertinen t part, that: A new trial may be granted on motion of the defendant for any o f the following causes affecting materi ally his substantial rights: * * * (4) That the verdict is not sustained by sufficient evidence or is-9- contrary to law. If the evidence shows the defendant is not gu ilty of the degree of crime for which he was convicted, but guilty of a les ser degree thereof, or of a lesser crime included therein, the court may m odify the verdict or finding accordingly, without granting or ordering a new trial, and shall pass sentence on such verdict or finding as modified. {¶ 26} In a recent decision, the Supreme Court of Ohio declined to “ex tend Yates and hold that a Crim.R. 33(A)(4) new-trial order based on insuf ficient evidence is a ‘final verdict’ under R.C. 2945.67(A) and thus cannot be appealed.” State v. Ramirez , 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, ¶ 20. {¶ 27} In Ramirez , a jury found the defendant guilty of voluntary manslaughter.
Id . at ¶ 4. During trial, Ramirez twice moved for acquittal unde r Crim.R. 29(A), arguing that there was a lack of evidence that he had acted “under the influence of sudden passion or a sudden fit of rage” or that the victim had provoked his re sponse. Id . at ¶ 5. The trial court denied both motions, based on State v. Rhodes , 63 Ohio St.3d 613, 590 N.E.2d 261 (1992), which had said, “in dicta, that when a defendant is charged with voluntary manslaughter and not murder, ‘neither party is required to esta blish either of the mitigating circumstances.’ Instead, ‘the court presumes (to the benefit o f the defendant) the existence of one or both of the mitigating circumstances as a r esult of the prosecutor's decision to try the defendant on the charge of voluntary mansla ughter rather than murder.’ ” Id ., quoting Rhodes at 618. {¶ 28} After the trial, Ramirez filed a motion for a new trial under C rim.R. 33(A)(4), again arguing that there was “insufficient evidence of sudden p assion and provocation.”
Id . at ¶ 6. This time, the trial court decided not to apply Rhodes and granted the motion-10- for a new trial. Id . The State then appealed. Although the court of appeals init ially granted the State leave to appeal, it then refused to consider the appeal on its merits, based on both double jeopardy and R.C. 2945.67(A). Id . at ¶ 7. Concerning R.C. 2945.67(A), the court of appeals “reasoned that an order granti ng a new trial based on insufficient evidence was functionally an acquittal and hence, a final verdict that could not be appealed.” Id

. {¶ 29} After the State again appealed, the Supreme Court of Ohio addre ssed both double jeopardy and R.C. 2945.67(A). Regarding double jeopardy , the court rejected the lower court’s conclusion that Ramirez could not be retried and that double jeopardy protection barred the appeal. Ramirez , 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, at ¶ 15. Instead, the court held that “ ‘[i]f a court gra nts a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an a ppeal by the government from the court's acquittal, because reversal would result in re instatement of the jury verdict of guilt, not a new trial.’ ” Id ., quoting Evans v. Michigan , 568 U.S. 313, 329, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013). Thus, the court of appeals could review the sufficiency issue and could either reinstate the original jury verdict or impose a lesserincluded conviction. Id

. {¶ 30} However, a different analysis applied in considering R.C. 2945. 67(A), because that statute “places independent limits on the state's ability to pursue a criminal appeal.” Id . at ¶ 17. In this context, the Supreme Court of Ohio stated t hat “[t]he determinative issue here is whether an order granting a motion for a new trial based on insufficiency of the evidence is a final verdict .” (Emphasis sic.). Id . The court noted its prior decisions in Keeton and Yates , and acknowledged Yates’s explicit rejection of “the-11- idea that ‘final verdict’ should be understood as limited to ca ses where any relief on appeal would be blocked by double-jeopardy principles – as would be th e case with a pre-juryverdict Crim.R. 29(A) judgment of acquittal.” Id . at ¶ 19, citing Yates , 32 Ohio St.3d at 30, 512 N.E.2d 343. {¶ 31} As noted, the court then declined to extend Yates to orders granting new trials under Crim.R. 33. The court first reasoned that “a gran t of a new trial is not a ‘final verdict.’ ” Id . at ¶ 21. In this vein, the court elaborated that “[p]lainly, such an order is not a verdict. And it certainly cannot be a ‘final verdict,’ b ecause granting such a motion contemplates further proceedings in the form of a new trial.” Id . In addition, the court concluded that classifying a new trial order as a “final verdic t” ignored the meaning of the term when R.C. 2945.67 was enacted in 1973. Id . at ¶ 22-23. {¶ 32} Specifically, “[t]he United States Supreme Court did not establ ish that the double-jeopardy protection prohibited retrial after a new-trial order based on insufficient evidence until its decision in Hudson in 1981.” Ramirez, 159 Ohio St.3d 426, 2020-Ohio602, 151 N.E.3d 598, at ¶ 23, citing Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The Supreme Court of Ohio therefore held th at: As it would have been understood at the time R.C. 2945.67 was enacted, a Crim.R. 33(A)(4) new-trial order would have been fol lowed by what the plain language of the rule suggests - a new trial. Si nce an order granting a motion for a new trial would have been followed by a new trial, it would not have been final in any meaningful sense, and hence it would not be a final verdict under R.C. 2945.67.
Ramirez at ¶ 24.-12- {¶ 33} Notably, while Ramirez discussed the part of Crim.R. 33(A)(4) that lets trial courts grant new trials when the verdict is not sustained by su fficient evidence, it did not address the portion of the rule that permits a “trial court to modify the verdict or finding accordingly, without granting or ordering a new trial * * *.” Ramirez also did not overrule
Yates or any of its prior authority.

{¶ 34} Under the reasoning in Yates , as well as Ramirez , the order here was clearly a final verdict. The trial court’s decision stated tha t the jury’s finding of guilt on the felonious assault charge was not supported by sufficient ev idence. The court then modified the verdict, sentenced Stargell, and filed a terminati on entry. Unlike the grant of a new trial, the order modifying the verdict left nothing le ft to be done; no new trial would have followed. And, like the post-jury acquittal in Yates , the trial court’s modification of the verdict was authorized by the applicable cr iminal rule and was based on sufficiency of the evidence. Yates , 32 Ohio St.3d at 32, 512 N.E.2d 343. Therefore,
Ramirez does not impact the result here. {¶ 35} Ramirez was issued on February 25, 2020. To date, only two cases have cited it, and neither has done so in any pertinent context. See State v. O'Connell , 2020- Ohio-1369, 153 N.E.3d 771, ¶ 36 (1st Dist.) (citing a general s tatement in Ramirez about double jeopardy), and State v. Keim , 11th Dist. Trumbull No. 2020-T-0050, 2021-Ohio793, ¶ 11 (finding the defendant’s citation of Ramirez irrelevant to a subject-matter jurisdiction issue). {¶ 36} We note that courts have allowed the State leave to appeal in s ome cases that involved judgments of acquittal However, the issues in qu estion have concerned matters like “evidentiary rulings and rulings on issues of law, because those rulings fall-13- within the language of ‘any other decision, except the final ve rdict,’ in R.C. 2945.67(A).” State v. Pawelski , 178 Ohio App.3d 426, 2008-Ohio-5180, 898 N.E.2d 85, ¶ 11 (2d Dist.), citing State v. Arnett , 22 Ohio St.3d 186, 489 N.E.2d 284 (1986), and State v. Bistricky , 51 Ohio St.3d 157, 555 N.E.2d 644 (1990). Nonetheless, courts have rejected the State’s attempt to appeal where the State is simply appealing t he final resolution of the case, not the above types of issues. E.g., State v. Roddy , 8th Dist. Cuyahoga No. 88759, 2007-Ohio-4015, ¶ 13. Compare City of Blue Ash v. Price , 2018-Ohio-1062, 98 N.E.3d 345, ¶ 7 (1st Dist.) (allowing appeal where a city admitted it could not appeal the not guilty finding concerning an ordinance violation, but wanted review of whether the ordinance was constitutional). {¶ 37} Our review of the State’s brief indicates the State is not rais ing any evidentiary or substantive legal issues. Instead, the State si mply asks that we vacate the trial judge’s decision and reinstate the jury verdict. See Appellant’s Brief, p. 8. This is because the State contends the jury verdict was based on suf ficient evidence and because it speculates that the jury may not have followed the t rial court’s instructions.
Id

. {¶ 38} Accordingly, this appeal is not properly before us because the State cannot appeal from the final verdict under R.C. 2945.67(A). As a resu lt, the appeal must be dismissed, and our prior decision allowing a discretionary appe al must be vacated.

III. Conclusion {¶ 39} Because we lack jurisdiction over the appeal, the appeal is dis missed. In addition, the decision of December 3, 2020, allowing the State’ s appeal is vacated.-14-

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TUCKER, P.J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Adam J. Arnold Hon. Mary Lynn Wiseman