[Cite as State v. Clark, 2011-Ohio-6030.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100693 TRIAL NO. B-0904410(B) Plaintiff-Appellee, : O P I N I O N. vs. :
JAYSHAWN CLARK, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 23, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Following a jury trial, defendant-appellant Jayshawn Clark appeals the
convictions and sentences imposed for the attempted murder of Derryan Holland,
with an accompanying firearm specification, and for having a weapon under
disability. Clark and co-defendant Fonta Whipple had had a long-running feud with
Holland over Holland’s sexual relationship with Whipple’s girlfriend. Whipple had
accused Holland of shooting him in the hand.
{¶2} On June 22, 2009, Clark and Whipple had obtained a ride from their
friend Ashlee King. The two had told King that they wished to visit Whipple’s father. But
while passing the Bad Boyz Car Wash in Lockland, Ohio, Whipple and Clark spotted
Holland and ordered King to stop the car. The two left the vehicle, crouched behind a
dumpster, and observed the scene in the car wash. While Clark stood watch in the
doorway, Whipple entered and fired at least ten shots with a 9-mm handgun at Holland,
severely injuring him.
{¶3} Returning to the car, Whipple joked that he had emptied the entire clip.
He laughed that someone should call an ambulance. Clark retorted that someone should
call the coroner. Whipple then called one of Holland’s friends and taunted him to go and
sit with Holland at the hospital. After ordering King to return them to Hartwell, the two
fled and were finally located together in a Kentucky motel room.
{¶4} At the urging of her mother, King described Clark’s and Whipple’s role in
the shooting to Lockland police officers. King testified before the grand jury and was to
have been the state’s key witness at an April 2010 trial. But after the jury trial had
commenced, King refused to testify, claiming that she was afraid for her life.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The state called King to the stand and she asserted her privilege against
self-incrimination. The trial court ultimately granted her immunity and ordered her to
testify. Nonetheless King, fearing retaliation from Whipple and Clark, would not testify.
The trial court found her in contempt of court and ordered her jailed. The trial court,
concluding that it could not know when or if King would testify, granted the state’s motion
for a mistrial. King ultimately spent 59 days in jail.
{¶6} Following a hearing, the trial court approved a retrial on the grounds of
manifest necessity. At the second jury trial, begun in September 2010, King testified fully.
At the close of the trial, the court charged the jury on complicity under R.C. 2923.03. It
instructed the jury that if it found Clark had aided and abetted Whipple in the commission
of the attack on Holland, it could find Clark guilty as if he were the principal offender.
{¶7} The jury found Clark guilty of each charged offense and specification. The
trial court ultimately imposed an aggregate sentence of 18 years of imprisonment.
{¶8} On appeal, Clark first asserts that the trial court erred in declaring a
mistrial after King refused to testify and in then permitting a second trial to commence.
Clark argues that the trial court violated his constitutional right to be free from successive
prosecution for the same offense. See North Carolina v. Pearce (1969), 395 U.S. 711, 89
S.Ct. 2072.
{¶9} There is no doubt that jeopardy had attached as the first jury had been
empaneled and sworn before the court had declared a mistrial. See Crist v. Bretz (1978),
437 U.S. 28, 98 S.Ct. 2156. But retrial before a second jury was not barred by the Double
Jeopardy Clause if there was either: (1) a manifest necessity for ordering a mistrial; or (2) a
situation where the ends of public justice would be defeated without the order of mistrial.
See State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900, citing Arizona v.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Washington (1978), 434 U.S. 497, 98 S.Ct. 824; see, also, State v. Douthard (June 29,
2001), 1st Dist. Nos. C-000354 and C-000355.
{¶10} Since the trial court was “in the best position to determine whether the
situation in [the] courtroom warrant[ed] the declaration of a mistrial,” the determination
of whether to grant a mistrial was consigned to the discretion of the trial court. State v.
Glover, 35 Ohio St.3d. at 19, 517 N.E.2d 900; see, also, State v. Brown, 100 Ohio St.3d 51,
2003-Ohio-5059, 796 N.E.2d 506, ¶42. To abuse this discretion, the court must have
acted unreasonably, arbitrarily, or unconscionably. See State v. Adams (1980), 62 Ohio
St.2d 151, 157, 404 N.E.2d 144. If the court’s exercise of its discretion, however, exhibited
a sound reasoning process that supported its decision, this court will not disturb that
determination. See AAAA Enterprises, Inc. v. River Place Community Urban Redev.
Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
{¶11} Here, King had been cooperating with the prosecution until she refused to
testify at trial. The trial court had granted King immunity from prosecution. It then held
her in contempt of court and ordered her incarceration, but still she refused to testify.
{¶12} Unlike the trial court in State v. Douthard, here, the court seriously
considered alternatives to declaring a mistrial, including employing King’s recorded police
statements or her grand jury testimony, or continuing the trial for a period of 30 days and
then recalling the jury. It entertained the arguments of counsel, including that of King’s
court-appointed attorney, as to the merits and drawbacks of each alternative and
thoroughly discussed each option with the parties.
{¶13} The trial court concluded that King was the key prosecution witness and
that her absence because of threats of violence created the manifest necessity for a mistrial
and subsequent retrial of Clark. See, e.g., State v. Lanier, 7th Dist. No. 06 MA 94, 2007-
4 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-3172; United States v. Khait (S.D.N.Y. 1986), 643 F.Supp. 605. Since the trial court’s
decision was supported by a sound reasoning process, the first assignment is overruled.
{¶14} In four interrelated assignments of error, Clark challenges the weight and
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Clark, 2011-Ohio-6030.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100693 TRIAL NO. B-0904410(B) Plaintiff-Appellee, : O P I N I O N. vs. :
JAYSHAWN CLARK, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 23, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Following a jury trial, defendant-appellant Jayshawn Clark appeals the
convictions and sentences imposed for the attempted murder of Derryan Holland,
with an accompanying firearm specification, and for having a weapon under
disability. Clark and co-defendant Fonta Whipple had had a long-running feud with
Holland over Holland’s sexual relationship with Whipple’s girlfriend. Whipple had
accused Holland of shooting him in the hand.
{¶2} On June 22, 2009, Clark and Whipple had obtained a ride from their
friend Ashlee King. The two had told King that they wished to visit Whipple’s father. But
while passing the Bad Boyz Car Wash in Lockland, Ohio, Whipple and Clark spotted
Holland and ordered King to stop the car. The two left the vehicle, crouched behind a
dumpster, and observed the scene in the car wash. While Clark stood watch in the
doorway, Whipple entered and fired at least ten shots with a 9-mm handgun at Holland,
severely injuring him.
{¶3} Returning to the car, Whipple joked that he had emptied the entire clip.
He laughed that someone should call an ambulance. Clark retorted that someone should
call the coroner. Whipple then called one of Holland’s friends and taunted him to go and
sit with Holland at the hospital. After ordering King to return them to Hartwell, the two
fled and were finally located together in a Kentucky motel room.
{¶4} At the urging of her mother, King described Clark’s and Whipple’s role in
the shooting to Lockland police officers. King testified before the grand jury and was to
have been the state’s key witness at an April 2010 trial. But after the jury trial had
commenced, King refused to testify, claiming that she was afraid for her life.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The state called King to the stand and she asserted her privilege against
self-incrimination. The trial court ultimately granted her immunity and ordered her to
testify. Nonetheless King, fearing retaliation from Whipple and Clark, would not testify.
The trial court found her in contempt of court and ordered her jailed. The trial court,
concluding that it could not know when or if King would testify, granted the state’s motion
for a mistrial. King ultimately spent 59 days in jail.
{¶6} Following a hearing, the trial court approved a retrial on the grounds of
manifest necessity. At the second jury trial, begun in September 2010, King testified fully.
At the close of the trial, the court charged the jury on complicity under R.C. 2923.03. It
instructed the jury that if it found Clark had aided and abetted Whipple in the commission
of the attack on Holland, it could find Clark guilty as if he were the principal offender.
{¶7} The jury found Clark guilty of each charged offense and specification. The
trial court ultimately imposed an aggregate sentence of 18 years of imprisonment.
{¶8} On appeal, Clark first asserts that the trial court erred in declaring a
mistrial after King refused to testify and in then permitting a second trial to commence.
Clark argues that the trial court violated his constitutional right to be free from successive
prosecution for the same offense. See North Carolina v. Pearce (1969), 395 U.S. 711, 89
S.Ct. 2072.
{¶9} There is no doubt that jeopardy had attached as the first jury had been
empaneled and sworn before the court had declared a mistrial. See Crist v. Bretz (1978),
437 U.S. 28, 98 S.Ct. 2156. But retrial before a second jury was not barred by the Double
Jeopardy Clause if there was either: (1) a manifest necessity for ordering a mistrial; or (2) a
situation where the ends of public justice would be defeated without the order of mistrial.
See State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900, citing Arizona v.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Washington (1978), 434 U.S. 497, 98 S.Ct. 824; see, also, State v. Douthard (June 29,
2001), 1st Dist. Nos. C-000354 and C-000355.
{¶10} Since the trial court was “in the best position to determine whether the
situation in [the] courtroom warrant[ed] the declaration of a mistrial,” the determination
of whether to grant a mistrial was consigned to the discretion of the trial court. State v.
Glover, 35 Ohio St.3d. at 19, 517 N.E.2d 900; see, also, State v. Brown, 100 Ohio St.3d 51,
2003-Ohio-5059, 796 N.E.2d 506, ¶42. To abuse this discretion, the court must have
acted unreasonably, arbitrarily, or unconscionably. See State v. Adams (1980), 62 Ohio
St.2d 151, 157, 404 N.E.2d 144. If the court’s exercise of its discretion, however, exhibited
a sound reasoning process that supported its decision, this court will not disturb that
determination. See AAAA Enterprises, Inc. v. River Place Community Urban Redev.
Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
{¶11} Here, King had been cooperating with the prosecution until she refused to
testify at trial. The trial court had granted King immunity from prosecution. It then held
her in contempt of court and ordered her incarceration, but still she refused to testify.
{¶12} Unlike the trial court in State v. Douthard, here, the court seriously
considered alternatives to declaring a mistrial, including employing King’s recorded police
statements or her grand jury testimony, or continuing the trial for a period of 30 days and
then recalling the jury. It entertained the arguments of counsel, including that of King’s
court-appointed attorney, as to the merits and drawbacks of each alternative and
thoroughly discussed each option with the parties.
{¶13} The trial court concluded that King was the key prosecution witness and
that her absence because of threats of violence created the manifest necessity for a mistrial
and subsequent retrial of Clark. See, e.g., State v. Lanier, 7th Dist. No. 06 MA 94, 2007-
4 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-3172; United States v. Khait (S.D.N.Y. 1986), 643 F.Supp. 605. Since the trial court’s
decision was supported by a sound reasoning process, the first assignment is overruled.
{¶14} In four interrelated assignments of error, Clark challenges the weight and
the sufficiency of the evidence adduced to support his convictions. Our review of the
entire record fails to persuade us that the jury, acting as the trier of fact, clearly lost its way
and created such a manifest miscarriage of justice that the convictions must be reversed
and a new trial ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,
678 N.E.2d 541. The state adduced ample evidence that Clark had actively supported,
assisted, and cooperated with Whipple in shooting Holland. Clark and Whipple had been
together before and during the attack and had been captured together afterward. Clark
had crouched behind the dumpster with Whipple moments before the attack and had
stood in the doorway watching the assault. Clark had joked with Whipple afterward.
{¶15} Since the weight to be given to the evidence in this case and the credibility
of the witnesses were for the trier of fact to determine, the jury was entitled to reject
Clark’s theory that he had merely accompanied Whipple to the car wash and had not
participated actively in the shooting. See R.C. 2923.03(A); see, also, State v. DeHass
(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The third
assignment of error is overruled.
{¶16} The record reflects substantial, credible evidence from which the trier of
fact could have reasonably concluded that all elements of the charged crimes had been
proved beyond a reasonable doubt, including that Clark had participated actively in
attempting to murder Holland. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791,
842 N.E.2d 996, ¶36. The second assignment of error is overruled.
{¶17} The trial court also properly denied Clark’s motions for judgments of
acquittal, as reasonable minds could have reached different conclusions as to whether
5 OHIO FIRST DISTRICT COURT OF APPEALS
each element of the crimes charged had been proved beyond a reasonable doubt. See
Crim.R. 29; see, also, State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184.
The fourth assignment of error is overruled.
{¶18} Moreover, in light of our disposition of Clark’s second and fourth
assignments of error, we conclude that the trial court did not abuse its discretion by
refusing to grant a new trial or to modify the verdict on grounds that insufficient evidence
was presented at trial. Under Crim.R. 33, a motion for a new trial is directed to the sound
discretion of the trial court, and the court’s decision shall not be reversed on appeal absent
an abuse of discretion. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54,
paragraph one of the syllabus. The relevant inquiry is the same as the inquiry for
sufficiency. See State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696,
¶89. Having already found sufficient evidence supporting Clark’s convictions for
attempted murder and having a weapon under disability, we overrule the sixth
assignment of error.
{¶19} Finally, Clark argues that the trial court erred in imposing an excessive
sentence. The trial court had imposed consecutive sentences for an 18-year aggregate
term of imprisonment: ten years for the attempted-murder offense, three years for the
firearm specification, and five years for the weapon-under-disability offense. The
sentences imposed were not contrary to law. See State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, ¶14. They were within the statutory range specified for the
offenses under R.C. 2929.14. See State v. Boggs, 1st Dist. No. C-050946, 2006-Ohio-
5899, ¶6. In light of the seriousness of the offenses, and Clark’s prior criminal record,
including felony convictions for burglary and cocaine trafficking, we cannot say that the
trial court abused its discretion in imposing sentence. See State v. Kalish at ¶17. The fifth
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Therefore, the trial court’s judgment is affirmed.
Judgment affirmed.
SUNDERMANN, P.J., and HENDON, J., concur.
Please Note: The court has recorded its own entry on the date of the release of this opinion.