State v. Dicks , 2012 Ohio 2621 ( 2012 )

[Cite as State v. Dicks, 2012-Ohio-2621.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2011-0059
DAVID T. DICKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2011-0112
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH FREDERICK A. SEALOVER
Assistant Prosecuting Attorney 45 N. Fourth Street
27 North Fifth Street P.O. Box 2910
Zanesville, Ohio 43701 Zanesville, Ohio 43702-2910
Muskingum County, Case No. CT2011-0059 2
Hoffman, J.
{¶1} Defendant-appellant David T. Dicks appeals the October 4, 2011
Judgment Entry entered by the Muskingum County Court of Common Pleas which
granted the Plaintiff-appellee state of Ohio’s Motion to Amend the Indictment.
STATEMENT OF THE CASE1
{¶2} Appellant was indicted on 20 counts of gross sexual imposition, violations
of R.C. 2907.05(A)(4), all involving the same victim. The case proceeded to trial by jury.
{¶3} At the close of the state’s case, Appellant moved for acquittal pursuant to
Crim. R. 29, arguing although the evidence may have been sufficient to support a
certain nature of the charged offense, it was not sufficient to support the nature of the
offense as charged in the Indictment.
{¶4} In response, the state moved to amend the Indictment to include
additional language which comported to the evidence adduced at trial and denied
Appellant’s motion for acquittal. Appellant then requested the jury be discharged
pursuant to Crim. R. 7D. Via Judgment Entry filed October 4, 2011, that request was
granted and the jury was ordered dismissed without prejudice with a new trial to be
scheduled.
{¶5} It is from that judgment entry Appellant prosecutes this appeal, assigning
as error:
{¶6} “I. THE TRIAL COURT ERRED IN PERMITTING THE STATE OF OHIO
TO AMEND ITS INDICTMENT AND DENYING THE DEFENDANT’S MOTION FOR
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Muskingum County, Case No. CT2011-0059 3
ACQUITTAL FOLLOWING THE CONCLUSION OF THE STATE OF OHIO’S CASE IN
CHIEF AT TRIAL.”
{¶7} Because Appellant is awaiting a new trial and has yet to be found guilty
and/or sentenced, we find no final appealable order exists under R.C. 2505.02. As
such, this Court is without jurisdiction and orders Appellant’s appeal dismissed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE
Muskingum County, Case No. CT2011-0059 4
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DAVID T. DICKS :
:
Defendant-Appellant : Case No. CT2011-0059
For the reason stated in our accompanying Opinion, this appeal is ordered
dismissed. Costs assessed to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE