State v. Dicks

2012 Ohio 2621

Opinion

[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/ John W. Wise _____________________ HON. JOHN W. WISE