MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CRAIG A. THOMPSON

Transcription

1 IN THE SUPREME COURT OF OHIO. s^' _...^.n STATE OF OHIO V. Appellee * On Appeal from the Montgomery County Court ^ of Appeals, Second Appellate District ^ CRAIG A. THOMPSON Appellant. ^ * Court of Appeals Case No. CA MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CRAIG A. THOMPSON THOMAS A. HANSEN ( ) (COUNSEL OF RECORD) 130 W. Second Street, Suite 1900 Dayton, Ohio Phone: (937) Fax: (937) thansen@dblhcklaw.com COUNSEL FOR APPELLANT, CRAIG A. THOMPSON MATHIAS H. HECK, JR. Montgomery County Prosecutor CARLEY J. INGRAM ( ) (COUNSEL OF RECORD) Assistant Montgomery County Prosecutor 301 W. Third Street Dayton, OH Phone: (937) Fax: (937) ingram@mcohio.org., ^ r..._:'^s'^..^<;.. sl.<< `_x.;:ff?s ;% COUNSEL FOR APPELLEE, STATE OF OHIO JAN CLERK OF COURT REME C URT OF ȮHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE P^ OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS... 2, 3 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I : Proposition of Law No. II : CONCLUSION CERTIFICATE OF SERVICE APPENDIX Attachments Opinion of the Montgomery County Court of Appeals (December 19, 2014)... Exhibit A Judgment Entry of the Montgomery County Court of Appeals (December 19, 2014)... Exhibit B Ohio Rules of Appellate Procedure Rule 30 A by Clerk of Courts (December 19, 2014)... Exhibit C

3 Cases: TABLE OF AUTHORITIES Carsey v. United States, 129 U.S. App. D.C. 205, 392 F.2d 810 (D.C. Cir. 1967) Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)....5,6 In re D.R., 7th Dist. N 12 MA 16, 2012 Ohio 5341, 2012 Ohio App. LEXIS Jones v. Hogg, 732 F.2d,53 (6{" Cir. 1984) Moore v. Dempse, 261 U,S. 86 ( 1923) Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)... 5 State v. Anderson, 138 Ohio St.3d 264, 2014 Ohio 542, N.E.2d, 2014 Ohio LEXIS ,2,7 State v. Busch, 76 Ohio St. 3d 613 ( 1996)... 9 State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio State v. Witt, 572 S.W.2d 913, 1978 Tenn. LEM 662, 4 A.L.R.4th 1266 (Tenn. 1978)... 5 Swisher v. Brady, 438 U.S. 204, 57 L.Ed.2d 705, 98 S.Ct, 2699 (1978)... 4 United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)...6 United States v. Dinitz, 424 U.S. 600, 47 L.Ed.2d 267, 96 S.Ct 1075 ( 1976)....4,5 United States v. Ingram, 412 F. Supp. 384 (D. D.C. 1976)...8, 9 11

4 United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion) United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)... 6 Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949) Constitutions: OHIO CONST., art. I, ,9 OHIO CONST., art.!, ,5 U.S. CONST., amend. V... 1,5 U.S. CONST. amend. XIV...:... 1,5 Ohio Revised Code: Section (A)(1) Section (A)(2)... 2 Ohio Criminal Rules: Criminal Rule 48(E3)... 9 iii

5 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents two critical issues for all persons in Ohio who are charged by the criminal process which subjects all criminal defendants to an actual jury trial of their peers. The result of which is a mistrial declared by the Court due to a deadlocked jury. This case also involves a felony. This is now a question as to a retrial because it violates Appellant's right to due process of law and the Double Jeopardy clause both guaranteed by the U.S. Constitution and the Ohio Constitution. The U.S. CONST., amend. V provides in pertinent part; "No person shall be... subject for the same offense to be twice put in jeopardy of life or limb..." The double jeopardy clause of the Fifth Amendment was applied to state action Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 797 (1969). Thus this guarantee is part of the Due Process protected against encroachment by the government by U.S. CONST., amend. XIV. OHIO CONST., art. I, 10 provides in pertinent part: "No person shall be twice put in jeopardy for the same offense." This case is of unsounding magnitude because the Ohio Supreme Court in State v. Anderson 2014 Ohio 542 (2/19/2014) decided that criminal defendants can now bring a double jeopardy claim to the Court of Appeals after the trial judge overrules the dismissal of the indictment. This is a first and a fore runner of new law that the U.S. Constitution and the Ohio Constitution provides. Now this Court must take the next step that a first re-trial of a deadlocked jury, without any fault of the defendant, without any new evidence or new witnesses from the State of Ohio amounts to double jeopardy and Appellant's right of due process of law guaranteed by the U.S. Constitution and the Ohio Constitution. 1

6 State v. Anderson, supra which this Court sent back to the Mahoning County Seventh Appellate District is still pending in that Appeals Court and the two (2) main issues are the same issues in this case at bar, double jeopardy and due process grounds on re-trial. STATEMENT OF THE CASE In Case No CR-377/2 the Defendant-Appellant, Craig A. Thompson, was indicted on one count complicity to commit burglary (felony 2nd degree) in violation of Section (A)(1) of the Ohio Revised Code, contrary to the form of the statute in violation of Section (A)(2) of the Ohio Revised Code. This offense was alleged to have taken place between the dates of February 3, 2013 to February 4, 2013 in Harrison townshin Mnntnnmarv (`n, rn+ii rlhin Defendant-Appellant entered a plea of not guilty to the charge and a jury trial was held in the Montgomery County Common Pleas Court on April 7, 2014 before Judge Barbara P. Gorman and lasted approximately four (4) days with the jury receiving the case on April 11, After many hours of deliberation, the jury reported that it was deadlocked and would not be able to render a decision other than a deadlocked decision. The Court asked the Foreman if a decision could be reached and he answered no. The jury was discharged and the Court filed on April 18, 2014 a Verdict Entry - Deadlocked Jury. On April 21, 2014, the court filed an Amended Verdict Entry- Deadlocked Jury. The Defendant-Appellant was continued on his $50, cash bond. On June 12, 2014, Defendant-Appellant filed his "Motion To Dismiss Defendant's Indictment on the Issues of Double Jeopardy and Denial of Due Process." On June 17, 2014 the Court filed its Decision overruling Defendant-Appellant's motion and on June 18, 2014 Defendant-Appellant filed his Notice of appeal to the Second District Court of Appeals. On December 19, 2014 the Second District Court of Appeals affirmed the trial court's decision. 2

7 STATEMENT OF THE FACTS FACTS The Appellant was indicted on March 5, 2013 as a co-defendant for the charge of Complicity to Commit Burglary, an F2 felony, on or about February 3, 2013 to February 4, The Appellant was officially arrested on February 4, 2014 around 6:00 a.m. after being custody for approximately 6 hours and held on a $100, cash bond. On February 12, 2014 Defendant's bond was reduced to $50, cash bond. There have been a number of pre-trial hearings including a preliminary hearing, motion to suppress evidence, change of Judge's due to a recusal by Judge Singer and then assignment to Judge Gorman. days. The Appellant, Mr. Thompson, went on trial on April 7, 2014 which lasted four (4) The prosecution had testify all witnesses who were associated with the alleged offense. These included the victim whose house co-defendant, Bradley Burns, broke into and duct taped the victim, the woman who stayed in the victim's home, who was dating Craig Thompson, Appellant. The crimes were committed by Bradley Burns who eventually plead to both counts of his indictment and found guilty by the Court but before sentencing changed his story and agreed to testify under a "proffer" and "plea agreement" against Appellant. Bradley Burns did testify against Appellant, Craig Thompson at the trial. Other witnesses for the state included Detective Saunders, multiple Montgomery County Sheriff Deputies, evidence crew technicians and the State introduced numbers of items of evidence, which none tied Mr. Thompson to the crimes that Bradley Burns had confessed to, burglary and abduction committed by Bradley Burns. After all this testimony and evidence was presented and the jury received the case, the jury came back deadlocked with seven (7) not guilty and five (5) guilty. The foreman advised Attorney Hansen that the vote would have been nine (9) not guilty and three (3) guilty had a defense witness not used the word "slave". 3

8 Regardless, the jury was deadlocked on April 11, 2014 reporting to the Court that having considered the case for a considerable length of time, they were unable to reach a verdict. The Court, after careful consideration of a lack of probability of the jury reaching a verdict, accepted that conclusion and finds that there is no probability of the jury agreeing. The jury was discharged and the Amended Verdict Entry Deadlocked Jury was filed and journalized on April 21, This is where the issues of Double Jeopardy and Denial of Due Process come into the case of Appellant Thompson. The State has no new evidence nor any new witnesses. All the testimony and evidence would be the same and double jeopardy would attach on a re-trial of a majority vote for Defendant from a deadlocked jury. The harm of a double jeopardy violation is the second trial, the retrial. If the State is allowed to retry, one, two, three or more times eventually the Defendant will be convicted, albeit innocent. It's going to take a strong Court to see the unjustice that is being done circumventing the issue of double jeopardy and denial of due process. Appellant Thompson should not have to keep "running the gauntlet.' ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: Does the Protection Against Double Jeopardy, U.S. CONST., amend, V and XIV and OHIO CONST., art. I, 10 preclude the State from engaging in oppressive practices which subject an accused to repeated prosecutions in an attempt to gain a criminal conviction? As shown oppressive practices which subject a accused to repeated prosecutions in an attempt to gain a criminal conviction violate the Constitution. See, Swisher v. Brady, 4378 U.S. 204, , 57 L.Ed2d 705, 98 S.Ct (1978); United States v. Dinitz, 424 U.S. 600, 611, 47 L.Ed.2d 267, 96 S.Ct (1976). Such oppressive practices vioiate the principles of fair play and substantial justice 4

9 associated with our constitutional criminal justice system and greatly increase the risk that innocent individuals will be found guilty. See, Carsey v. United States, 129 U.S. App. D.C. 205,392 F.2d 810, (D.C. Cir. 1967); Jones v. Hogg, 732 F.2d 53 (6t' Cir. 1984), citing State v. Witt, 572 S.W.2d, at 917. U.S. CONST., amend. V provides in pertinent part; "No person shall be... subject for the same offence to be twice put in jeopardy of life or limb..." The double jeopardy clause of the Fifth Amendment was applied to state action in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Thus, this guarantee is part of the Due Process protected against encroachment by the government by U.S. CONST., amend. XIV. OHIO CONST., art. I, 10 provides in pertinent part: "No person shall be twice put in jeopardy for the same offense." The Double Jeopardy Clause accords the accused the 'valued right to have his trial completed by a particular tribunal." See, Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). This Appellant has had one "particular" panel. When a defendant requests a mistrial, retrying him for the same offenses generally does not violate Double Jeopardy because "the defendant himself has elected to terminate the proceedings against him:" See, Oregon v. Kennedy, 456 U.S. 667, 672,102 S.Ct. 2083, 72 L.Ed.2d-4;16 (1982), citing United States v. Dinitz, 424 U.S. 600, , 96 S.Ct. 10,75, 47 L.Ed.2d 267 (1976). Appellant did not request a mistrial. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); provides insight into the function of the Double Jeopardy Clause. The Clause's underlying idea is that: The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty. Id., at (Emphasis added.) Rightly conceived, the Clause protects two values, both of which are imperiled by the government's "repeated attempts to convict an 5

10 individual for an alleged offense" and both of which arise from the fact that the government has more "resources and power" than an individual defendant. The first value is the defendant's "finality" interest.' Repeated attempts to convict an individual compel a defendant to live, as Appellant Craig Thompson has done, for 2 years, "in a continuing state of anxiety and insecurity." Once accused of a crime, a defendant "must suffer the anxiety of not knowing whether he will be found criminally liable and whether he will have to suffer a prison term." Without double jeopardy protection, a defendant's ability to conduct his life would be hampered by the fear of what has occurred here: renewed and continued exposure to the "embarrassment, expense and ordeal" of trial. Green, 355 U.S., at 187. To this extent, the Clause should protect the accused's interest in "repose' or his interest in being able, once and for all, to conclude "his confrontation with society." United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion). The second value that the Clause can serve is to prevent the government from "enhancing the possibility that even though innocent, a defendant may be found guilty." Green v. United States, 355 U.S., at 188. Repeated trials create "an unacceptably high risk that the Government, with its superior resources, would wear down a defendant." See, United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The 'wearing down" phenomenon interest arises from the imbalance in resources between the defense and the prosecution, one that is so great that a defendant will not receive a fair trial if subject to repeated attempts at prosecution. See, Hodge, supra, and Schulhofer, supra. Put another way, the Double Jeopardy Clause protects a person from "the harassment traditionally associated with multiple prosecutions." See, United States v. Wilson, 420 U.S. 332, 352, 95 S.Ct. 1013,43 L.Ed.2d 232 (1975). The Clause ; reflects the reality that because of the government's "resources and power," each intrusion into a person's life in the form of a criminal accusation harasses that person. Therefore, the Clause limits the number of prosecutions that the state can bring, insuring a minimum interference with individual liberty. The harm of a double jeopardy violation is the second trial. The United States Supreme Court is clear about the harm that the Double 6

11 Jeopardy Clause seeks to avoid. In the current case, the harm is not simply an unjust conviction-it is the trial itself, it's the second trial. As the Court explained: [The] protections [of the Double Jeopardy Clause] would be lost if the accused were forced to "run the gauntlet" a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. (Emphasis added.) Abney v. United States, 431 U.S. 651, (1977). Accordingly, retrial is the harm Mr. Thompson has the right to avoid. Now through State of Ohio v. Anderson, 2014 Ohio 542 ( ) defendants can now bring a double jeopardy claim to the Court of appeals after the trial judge overrules the dismissal of the indictment. This is a first and a fore runner of new law that the Constitution provides. As Justice Lanzinger noted, a defendant whose first trial was in 2005 had to go through three trials before she finally received double jeopardy relief-in State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 42 (Lanzinger, J., concurring). Immediate appeals can further the prompt administration of justice by timely resolving double jeopardy claims. An appeal after conviction cannot remedy the harm the double jeopardy clause is intended prevent- "running the gauntlet." Compare id. with Abney, 431 U.S. at 661. The Appellant should not be forced to "run the gauntlet" a second time when the State of Ohio has no new evidence, no new witnesses with all evidence and witnesses being produced at the first trial and which resulted in a deadlocked jury, the indictment should and must be dismissed by this Court. It is not just the conviction itself that the Double Jeopardy Clause seeks to guard against, but the actual "jeopardy" of having "run the gauntlet" more than once. It is the risk, anxiety, expense, and repeated exposure to being "worn down" by the government that violates the Double Jeopardy Clause due process clause. 7

12 Proposition of Law No. II: Do U.S. CONST., amend. XIV and OHIO CONST., art. I, 10, 2, and 16 prohibit the State from making repeated attempts to convict a person, by simply wearing him down when there is no new evidence of guilt? Citizens of Ohio enjoy the protections, under the Ohio and United States Constitutions, inter alia, of due process, equal protecting the right to defend themselves, and the right to have justice administered without denial or delay. Read together, citizens who have been indicted have a right to be put on trial in a process that is fair. Judge Gesell's holding in United States v. Ingram, 412 F. Supp. 384 (D. D.C. 1976) is particularly apt here: Apparently the Government, always a hard loser, simply wishes to keep pressing so long as juries disagree in the hope that a conviction eventually wlll result. Appellate courts have approved this process of attrition under different circumstances. See United States v. Castel/anos, 478 F.2d 749 (2d Cir. 1973); United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied sub nom. Grunberger v;. United States, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 ( 1972); United States v. Dooling, 406 F.2d 192 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744; 23 L.Ed.2d 224 (1969). Here is a man in Jail now more than seven months primarily because of an offense which the Government is unable to convince a jury he committed. If another trial takes place there is every reason to believe the jury will again be divided or will acquit. There is great deference shown jury determinations that result in conviction, and the same attitude should prevail when, as here, members of a jury disagree so conclusively when not even faced with conflicts in the proof. Under the circumstances of this case the verdicts themselves indicate a reasonable doubt in the minds of a substantial majority of the jury members who have heard the evidence.... The judgment of the Court or the prosecutor as to the weight of the evidence is, under these circumstances, not to outbalance the obvious. Id., at (Emphasis added.) When it is evident that the likely result of a second attempt to convict a man is a hung jury, and the State has no new evidence, continued prosecution, in a simple attempt to beat down the Defendant, violates the provisions cited above. The State was afforded a full opportunity to complete the presentation of its evidence. Mr. Thompson argued that with no new evidence, the State could not continue to force him to prepare for, and to run the gauntlet of, another trial. 8

13 As Mr. Thompson argued to the trial judge, the government's continuing attempts to force Thompson to run the gauntlet again, have placed him in a position where he cannot effectively defend his liberty, Thompson told the trial judge that he is worn down, His family is worn down. His lawyer is worn down. See, OHIO CONST., art. I, 1." See, Motion to Dismiss. III As shown below, the Due Process Clause is meant in part to limit the power of government to act when that action would be oppressive or unfair. Moore v. Dempse, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), held that, even when there is no "state action," the Due Process Clause demands measures by the judiciary to correct an unfairness that cannot be overlooked. Trial courts have the inherent authority to terminate a prosecution following hung jury. Ohio has recognized the authority of a trial judge to dismiss a case in the interests of justice. See, State v. Busch, 76 Ohio St.3d 613, 615, 1996 Ohio 82, 669 N.E.2d 1125, where the defendant was charged with domestic violence and assault. On a number of occasions the victim indicated that she wanted the charges dismissed. Though it had reservations, the trial court dismissed the charges over the government's objection, saying it did not want to stand in the way of defendant and victim working out their problems. The State appealed, and the court of appeals held that the trial court lacked the authority to dismiss the charges over the objection of the prosecution. However, the appellate court found its judgment in conflict with another appellate court, and certified a conflict to the Ohio supreme Court. The Supreme Court said that the trial court could dismiss the case and that indeed OHIO CRIM. R. 48(B) recognized the procedure for doing so. A case that has many similarities with this one was dismissed years ago by Judge Gerhard Gesell. That case, quoted above, is United States v. Ingram, 412 F. Supp. 384, 385 (D.D.C. 1976). There, the court dismissed the prosecution as a matter of "fair play." Ingram involved dismissal of an indictment where no new evidence was anticipated. 412 F. Supp., at

14 CONCLUSION This case, as presently before this Court, presents a relatively straight forward question. Does the U.S. Constitution and Ohio Constitution prohibit the government (State of Ohio) from repeated efforts/trials to convict the Appellant simply as an exercise of prosecutorial power. Let's face reality of all the criminal cases in Montgomery County and the counties of this 2nd District Court of appeals there are one (1) or two (2) hung juries per year. 99.9% of all criminal cases are found guilty and/or plead guilty, be it the initial charge or a reduced change. It is this.01% of cases that this Court needs to protect their constitutional rights. The Constitution says "no person shall be twice put in jeopardy for the same offense". The Defendant-Appellant should not be put in jeopardy twice and the decision of the trial judge denying Craig Thompson-Appellant's motion to dismiss must be reversed by this court for justice. Respectfully submitted, THOMAS A. HANSEN ( ) Attorney for Defendant-Appellant 130 W. Second Street, Suite 1900 Dayton, Ohio (937)

15 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served upon Carley J. Ingram, APA, Attorney for the State of Ohio, Plaintiff-Appellee, Montgomery County Prosecutor"s Office, P. O. Box 972, 301 W. Third Street, Dayton, OH 45422, by ordinary U.S. Mail on January _;L6, THOMAS A. HANSEN ( ) Attorney for Defendant-Appellant 11

16 EXHIBIT A IN THE COURT OF APPEALS OF OHIO MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appe(iee Appellate Case No V. CRAIG A. THOMPSON Defendant-Appellant Trial Court Case No. 13-CR-377/2 (Criminal Appeal from Common Pleas Court) OPINION Rendered on the 19th day of December, MATHIAS.H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. # , Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio Attorney for Plaintiff-Appellee THOMAS A. HANSEN, Atty. Reg. # , 130 VVest Second Street, Suite 1900, Dayton, Ohio Attorney for Defendant-Appeilant FAIN, J. { [} Defendant-appellant Craig Thompson appeals from an order of the Montgomery County Court of Common Pleas overruling his motion to dismiss his indictment following a mistrial due to a deadlocked jury. Thompson contends that the trial THE COURT OF APPEALS OF OHIO

17 court erred because retrial violates both his right to due process of law and the Double Jeopardy clause. { 2} We conclude that jeopardy did not attach in this case. Therefore, the trial court did not err in overruling Thompson's motion to dismiss. Thompson has presented nothing to support his claim that his due process rights were violated. Accordingly, the order of the trial court from which this appeal is taken is Affirmed. -2- I. The Course of Proceedings ( 3) In March 2013, Thompson was indicted on a charge of Complicity to Commit Burglary, in violation of R.C (A)(1). A jury trial conducted in April 2014 resulted in a mistrial after the jury reported that it was deadlocked. The matter was set to be retried on June 23, { 4} On June 12, 2014, Thompson filed a"motion to Dismiss Defendant's Indictment on the Issues of Double Jeopardy and Denial of Due Process." In his motion, he argued that he was entitled to file an appeal of his Double Jeopardy claim (presumably, if the trial court were to overrule his motion, which it did) prior to retrial. In support, he cited State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, in which the Supreme Court of Ohio held that "an order denying a motion to dismiss on double-jeopardy grounds is a final, appealable order." Id., 61. The motion also discussed the general,11 interests served by the Double Jeopardy clause. Other than stating that a defendant is harmed by having to go through a second trial and face a possible "unjust conviction," the motion did not address any specific Double Jeopardy violations as applied to Thompson The trial court set the matter for hearing. At the hearing, the following colloquy took place: THE COURT OF APPEALS OF OHIC2

18 -3- THE COURT: My question with your motion, my issue with the way you're proceeding is * * * you have not indicated a reason why a trial that results in a hung jury is one, without more, where jeopardy attaches. * * * I asked you last week when you brought this up - I understand Anderson. I fully accept it. It makes sense to me. If you are bringing up a double jeopardy issue that you should stop the trial. If the parties choose to appeal, you should stop the trial and go to the Court of Appeals to see if the second trial is warranted. My problem is there is not one, I think, sentence in this that indicates why you believe double jeopardy attaches in this instance. You talk, in general, about double jeopardy and that's why I asked if there was anything further. I know of no case law and I have, you know, I've been on the bench 26 years. I've probably tried over that time, it doesn't happen all the time, but I have tried over that time I would say between six and ten cases where there was a hung jury and the case was tried again. The fact that a motion to dismiss, if overruled, allows an appeal, that still does not indicate to me upon what basis that motion to dismiss for double jeopardy is based. And so, other than this, have you found any case law that indicates that a trial to a jury, where there is a deadlocked jury, somehow attaches double jeopardy to the case. And that's what I'm looking for. *** 'I'HE COURT OF APPEALS OF OHIO

19 -4- And one further thing. The Anderson case, I believe, went out if its way to indicate it was a procedural motion and that it was nothing on the merits. That is the procedurai, the whole thing about the Anderson case is the procedural issue that if a motion to dismiss is filed for double jeopardy grounds and the Court overrules it, you have a right to an immediate appeal. MR. HANSEN: The problem with, I did research double jeopardy: * * * And what keeps coming up, because we didn't have this new Ohio Supreme Court case [Anderson], is the fact that they're appealing after conviction. If there's an acquittal, there's no appeal, period. But they're appealing after conviction and the Supreme Court and the U.S. Supreme Court says that is not a remedy, at all, to appeal after a conviction. You have to get it before the second trial starts. THE COURT: But there has to be a legitimate reason. And, again, I asked. I know you can take an appeal if I overrule this. I understand that. But what is the underlying basis to say that jeopardy attached in this case? MR. HANSEN: Because the jury came back deadlocked and the State presented all their evidence, all their witnesses. There has been no new evidence presented to me, no new witnesses presented to me. The majority of that deadlocked jury was for the defendant. And if the case be known, I can tell you that it's seven-five. But there was discussion in the jury room and it would've been nine-three for acquittal had the word "slave" not been used during the defense, one of the defense witness' testimony. THE COURT OF APPEALS OF OHIO

20 -5- THE COURT: Okay. You're going way beyond anything that's appropriate here to bring up what is discussed in the jury room for whatever basis. The point is it was a seven-five decision which is as close to 50 percent as you can get, six-six, seven-five. The fact, by itself, that there was a hung jury again there have been numerous cases where there has been a hung jury and the issue of double jeopardy does not come up, not because Anderson wasn't available but because there was not- is there a case s mewhere that says when there is a hung jury, jeopardy attaches? That's what I'm asking you. MR. HANSEN: Well, I cited Harpster v. Ohio which is a federal case, on page 4 of my motion, that goes to the issue. And the State tried to stay the state court proceedings to permit litigation of his double jeopardy claim before his second trial. THE COURT: Fine. And what was his double jeopardy claim in that case? MR. HANSEN: Because of the Constitution of the United States - THE COURT: I understand that, factually. What was the double jeopardy issue? MR. HANSEN: I don't have the factual aspect of that case in front of me. THE COURT: Okay. All right. Based upon the motions and the law submitted, the Court overrules and denies the motion to dismiss. THE COURT OF APPEALS OF OHIO

21 { 5} Following the denial of the motion, Thompson appealed. The State filed a motion to accelerate the appeal, which we granted. -6- It. Double Jeopardy Does Not Bar Retrial After a Hung Jury { 6} Thompson's First Assignment of Error states: THE TRiAL JUDGE ERRED IN NOT DISMISSING THE INDICTMENT AS CONTINUED PROSECUTION VIOLATES DOUBLE JEOPARDY. { 7} Thompson contends that jeopardy attached when the trial ended in a deadlocked jury. He argues that his right to finality, to be tried by one particular panel, and to avoid having to "run the gauntlet" a second time, implicates his right to be free from double jeopardy. He further argues that simply having to go through a second trial constitutes harm. He admits case law holds that jeopardy does not attach when there is a manifest necessity for the declaration of a mistrial. However, he appears to argue that a deadlocked jury does not necessitate the declaration of a mistrial. Finally, he appears to argue that double jeopardy attached because he did not request a mistrial. { 8} "It is well-established that the' Double Jeopardy Clause protects against successive prosecutions for the same offense." State v. Whiteside, 10th Dist. Franklin No. 08AP-602, 2009-Ohio-1893, 15. However, "the Double Jeopardy Clause only applies `if there has been some event, such as an acquittal, which terminates original jeopardy.' " State v. Griffin, 2d Dist. Montgomery No.21578, 2007-Ohio-2099, 10, quoting Richardson v. U.S., 468 U.S. 317,104 S.Ct. 3081, 82 L.E.2d 242 (1984). "[A] trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to THE COURT OF APPEALS OF OHIO

22 resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree." Richardson, at 326, accord Griffin, at T 10. In otherwords, "courts have consistently held that a retrial following a mistrial because of a deadlocked jury does not violate double jeopardy principles." Whiteside, at 15. { 9} In the trial court, Thompson cited both Anderson, supra, and f-farpster v. State of Ohio, 128 F.3d 322 (6th Cir. 1997), as support for his claim that retrial is barred. The Anderson court did state that "retrial itself is one of the harms at issue in double-jeopardy cases" and "[t]hat harm cannot be remedied by a subsequent acquittal in the trial court or by the reversal of any conviction through appeal after trial." Id. at 57. However, that statement does not mean that the mere specter of retrial is enough to trigger the Double Jeopardy Clause. Indeed, a review of Anderson shows that the Supreme Court of Ohio was addressing only the issue of whether a denial of a motion to dismiss on double jeopardy grounds is a final appealable order. The court did not address the merits of the defendant's underlying double-jeopardy claim. It merely held that when there is a doublejeopardy issue, the defendant has a right to appeal the denial of a motion to dismiss before retrial. This case does not support Thompson's argument that double jeopardy, applies in his case to bar a retrial after a hung jury mistrial. { 10) In Harpster, the State moved for a mistrial, which was granted, following what -7- it perceived to be prejudicial testimony elicited by defense counsel. Id., at 325. Upon appeal, the reviewing court found that the mistrial was unnecessary because a"simple corrective instruction would have sufficiently protected against jury bias." Id., at 330. { 11) We find Harpster inapplicable, because Thompson has not alleged, and there is no evidence of, prosecutorial misconduct or bad faith act on the part of the State THE COURT OF APPEALS OF OHIO

23 !I resufting in an unnecessary mistrial. There is no evidence that Thompson objected to the declaration of a mistrial, that there was any argument regarding the necessity thereof, or that the trial court erred by declaring a mistrial. There is no allegation that the evidence presented by the State was insufficient to support a conviction, and in the absence of any evidence to the contrary, we presume that the trial court correctly permitted the case to go to the jury. { 12} Thompson has not made any allegation, or demonstrated any evidence, to support his claim that a retrial is prohibited by the Double Jeopardy Clause. The First Assignment of Error is overruled. -8- Ill. Even if it Could Be the Basis for an Appeal Before Judgment, Thompson Has Not Set Forth Any Facts to Support his Claim that his Due Process Rights Were Violated { 13} Thompson's Second Assignment of Error provides as follows: THE TRIAL COURT ERRED IN FAILING TO GRANTAPPELLANT'S MOTION TO DISMISS BASED UPON DUE PROCESS GROUNDS. { 14} Thompson contends that the indictment should have been dismissed because a retrial violates his right to Due Process. As noted by the State, Thompson presented no argument to the trial court, either in his motion or at the hearing, regarding the issue of Due Process. { 15} In his brief to this court, Thompson claims that due process prohibits retrial because the likely result from a retrial will be another hung jury, since the State has no new evidence or witnesses to present. In support, he cites U.S. v. Ingram, 412 F.Supp. 384 THE COURT OF APPEALS OF OHIO

24 (D.C. Dist. 1976). In that case, the defendant was tried and acquitted by a jury. Id., at The trial court then dismissed the indictment, without objection by the state. fd. The state later asked for a reconsideration of the dismissal, which was denied by the trial court. Id. We find fngram inapplicable; Thompson has not been acquitted by a jury, and Bngram does not discuss due process in the context of a properly declared mistrial. { 16) In any event, we find no abuse of Thompson's due process rights. This is not a case in which there is any evidence that the State is abusing its power by attempting to re-try the case, nor is it a situation in which Thompson has been retried numerous times. { 171 Finally, even if this record presented an issue concerning Due Process, we are not prepared to expand Anderson's holding that the overruling of a motion to dismiss on Double Jeopardy grounds may be appealed before judgment, to the overruling of motions to dismiss based upon othergrounds, which could lead to piecemeal appeals and protracted litigation. { 18) The Second Assignment of Error is overruled. IV. Conclusion { 19} Both of Thompson's assignments of error having been overruled, the order of the trial court from which this appeal is taken is Affirmed. DONOVAN, J., and WELBAUM, J., concur Copies mailed to: Mathias H. Heck, Jr. Carley J. Ingram Thomas A. Hansen Hon. Barbara P. Gorman THE COURT OF APPEALS OF OHIO

25 BBHIBIT B IN THE COURT OF APPEALS OF OHIO MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee V. CRAIG A. THOMPSON Defendant-Appellant Appellate Case No Trial Court Case No. 13-CR-377/2 (Criminal Appeal from Common Pleas Court) FINAL ENTRY Pursuant to the opinion of this court rendered on the 19th day of December, 2014, the order of the trial court from which this appeal is taken is Affirmed. Costs to be paid as stated in App.R. 24. Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. MIKE FAIN, Judge THE COURT OF APPEALS OF OHIO

26 _2_ ::n a-t,, ^---^ MARY. DO OlfAN, Judge JEFFREY M. WELBAUM, Judge Copies maided to: Mathias H. Heck, Jr. Carley J. Ingram Montgomery County Prosecutor's Office 301 W. Third Street Dayton, OH Thomas Hansen 130 W. Second Street Suite 1900 Dayton, OH Hon. Barbara P. Gorman Montgomery County Common Pleas Court 41 N. Perry Street Dayton, OH THE COURT OF APPEALS OF OHIO

27 EXHIBIT C ^ _ '.... ^.. CLERK OF THE COURT OF ApPEL'3.I,S,MOl\TGOIVIPRY COUNTY OHIO STATE OF OHIO PRIMARY VS. CASE NUMBER: CA DATE: PECElVIBER CRAIG A THOMPSON SECONDARY Ohio Rules of Appellate Procedure Rule 30A TO: MATHIAS H HECK JR CARLEY J INGRAM THOMAS A HANSEN Pursuant to Appellate Rule 30A, you are hereby notified that a Final Judgment Entry has been filed with the Clerk of the Court of Appeals on Sincerely, GREGORY A. BRUSH Clerk Prepared by H. FEDON, Deputy Clerk of Courts