[Cite as State v. Schall, 2024-Ohio-1896.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 113070 v. :
MATHEW SCHALL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 16, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679199-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carley Berman, Assistant Prosecuting Attorney, for appellee.
Patrick S. Lavelle, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant, Mathew Schall, appeals his conviction for
having weapons while under disability. He contends that the doctrine of res judicata barred his conviction after a jury acquitted him of other related offenses that
involved possession of a firearm. For the reasons that follow, we affirm.
Factual Background and Procedural History
On April 11, 2023, a Cuyahoga County Grand Jury indicted Schall on
12 counts: five counts of felonious assault in violation of R.C. 2903.11(A)(2) with
one- and three-year firearm specifications (Counts 1-5), two counts of improperly
discharging a firearm into a habitation in violation of R.C. 2923.161(A)(1) with one-
and three-year firearm specifications (Counts 6 and 7), two counts of criminal
damaging or endangering in violation of R.C. 2909.06(A)(1) (Counts 8 and 9), two
counts of discharge of a firearm on or near prohibited premises in violation of R.C.
2923.162(A)(2) (Counts 10 and 11) and having weapons while under disability in
violation of R.C. 2923.13(A)(2) (Count 12). The charges related to an incident that
occurred on or about October 3, 2021 in which Schall allegedly fired numerous
gunshots near the homes of Amanda Comer and Nancy Reid, causing damage to
Comer’s car, garage and home and damage to Reid’s home.
On July 11, 2023, the case proceeded to trial. Schall waived a jury trial
on the having weapons while under disability charge. The remaining charges were
tried to a jury.
At trial, the state presented testimony from four witnesses: victim
Comer, K.S. (the daughter of Comer’s partner, C.L. Schall (“C.L.”)) and two police
officers. Comer testified that sometime between 1:00 a.m. and 3:00 a.m. on
October 3, 2021, she and C.L. were watching television when they heard “a whole bunch” of gunshots “close” to their home — i.e., the downstairs unit of a duplex on
West 97th Street in Cleveland. The gunfire lasted for approximately ten minutes.
Two of C.L.’s children and C.L.’s brother and his wife were also in the home at the
time of the shooting. Comer testified that when she went outside the next morning,
she discovered that “everything” in the detached garage was “destroyed” and that
her car, a white Ford Edge, was “full of bullets.” She then called the police. She later
discovered that her house, “by the back door,” and her neighbor’s house had also
been “hit.” Comer stated that gunfire “happens all the time” in her neighborhood,
but that this was the first time her property had been hit.
On October 2, 2021, the day before the shooting, Comer had had an
altercation with her upstairs neighbor, Barbara McCree. Comer stated that McCree
had been screaming, cursing and yelling at her, threatening to “jump her” and told
her, “[W]ait until tonight, b**tch.” Comer indicated that she initially told police she
believed McCree could have been responsible for the shooting because, at that time,
she did not know who else could have been involved.
Comer stated that approximately two or three weeks after the
shooting, Schall, who is C.L.’s nephew, admitted that he had been involved and
apologized to her and C.L. for the shooting. Comer testified:
[Schall] was over and he was in the garage and he was just saying random things like repeatedly over and over again and in between different mumblings he‘[d] say, I’m sorry, quote, I shot your sh*t up. He said that six to seven times that night. Comer stated that she believed Schall because she had known him for
over 20 years and “he’s not known to say something if he didn’t do it.” She indicated
that she immediately called the detective who was investigating the incident to
report Schall’s statement but that they “played phone tag” for a while. Comer
testified that she had previously seen Schall with firearms and that she did not think
she had ever seen him “without one.”
K.S. testified that, on the night of the incident, she woke up when she
heard “a whole bunch of gunshots.” She indicated that she had heard gunshots in
her neighborhood before but that these were “closer.” She did not otherwise know
anything about the shooting.
Cleveland police officer Thomas Bowser was one of the responding
officers. He testified that, when he arrived at the scene, he observed multiple bullet
holes in the car, in items in the garage and in the back of the garage. He also
observed one bullet hole in the back of Comer’s house and one bullet hole in the side
of Reid’s house. He indicated that the shots had been fired from a park behind
Comer’s garage. Bowser stated that he and/or his partner spoke with Comer,
McCree, Reid and a witness across the street who heard McCree’s threats to Comer
the day before the shooting. The officers also located and collected spent shell
casings in the park behind Comer’s home. Bowser stated that the police
department’s scientific investigation unit was called out to photograph the scene and
that the vehicle was later towed and “processed.” Cleveland police detective Richard Rospierski was assigned to
investigate the incident. He testified that, after reviewing the police report, he went
to the scene where he met with Comer and observed the damage to her home and
the garage. He indicated that Comer mentioned that she “gotten into a verbal
altercation with her neighbor” the day before the shooting but that McCree was not
a “named suspect” because Comer had not seen McCree shoot at the home and no
one else had identified McCree as the shooter. Rospierski stated that he attempted
to contact McCree several times during his investigation but was unsuccessful. He
indicated that he did not obtain statements from anyone else in Comer’s or McCree’s
homes at the time of the October 3, 2021 incident and did not speak with the
responding officers or the neighbor who overheard McCree’s threats to Comer.
Rospierski stated that there was no known video footage of the
incident “where you would be able to identify somebody positively” and that no
fingerprint or DNA analysis was performed on the spent shell casings or bullet
fragments recovered from the scene.
Rospierski testified that Comer contacted him a couple weeks after
the incident and informed him that Schall was responsible for the shooting because
he had apologized to Comer, saying, “I’m sorry I shot your sh*t up,” “six to seven
times.” Rospierski stated that the apparent motive for the shooting was that Schall
had loaned C.L. $80 which he had not repaid.
Rospierski testified that he attempted to contact Schall but was not
successful. He researched Schall’s presence on social media and testified that he found a 2019 Facebook posting, purportedly from Schall, that included a
photograph of Schall holding a Glock 43.
Rospierski testified that no gun was recovered from Schall or the
scene and that Comer’s statement that Schall had apologized and the unrelated
Facebook posting was the only information he had obtained through his
investigation that allegedly connected Schall to the shooting.
In addition to the witness testimony, the state introduced into
evidence photographs of the vehicle and the scene, screenshots of certain of Schall’s
postings on Facebook, a screenshot from one of the responding officer’s body
cameras depicting McCree and an envelope of shell casings recovered from the
scene. The parties stipulated to the admissibility of a judgment entry reflecting
Schall’s prior conviction for attempted felonious assault in Cuyahoga C.P. No. CR-
08-516256 in April 2009.
After the state rested, Schall made a motion to dismiss the case
pursuant to Crim.R. 29. The trial court denied the motion. The defense rested
without presenting any witness testimony.
The jury found Schall not guilty on Counts 1-11. The trial court found
Schall guilty on Count 12, the having weapons while under disability charge. The
trial court explained the basis for its guilty verdict as follows:
As we all know, this defendant tried Count 12 having weapons under disability in violation of 2923.13(A)(2) to the Bench. This court finds the defendant guilty of that count. I believe the testimony of Amanda Comer. And one witness, in fact, can result in a guilty verdict. The evidence was that he shot — that he confessed to shooting up the house, and the car, and the garage, and there was no evidence to the contrary. So the Court renders a finding of guilt as to Count 12.
At the sentencing hearing, the trial court further explained:
So the Court wishes to state that I understand the jury’s verdict completely. But in terms of Count 12, it was the Court’s duty to weigh the credibility of the witnesses in this case, and I found Amanda Comer’s testimony to be quite believable. I think it was extremely difficult for her to appear in court and testify against the nephew of her partner. She did indicate to the State and the State placed upon the record that she had safety concerns and was scared of the victim. And indeed one witness can be enough to sustain [a] conviction, if the trier of fact believes that all elements of the offense have been established beyond a reasonable doubt.
There was, of course, the stipulation that this defendant was under a disability. He actually had multiple disabilities, because of his rather lengthy criminal record. So the Court made the finding as to guilt in Count 12, based upon the evidence. * * *
Now, although he was acquitted of the first 11 counts, he was convicted because of the statement Ms. Comer placed upon the record that Mathew Schall, sometime after the shooting, appeared at her home either high, drunk, or intoxicated. I think she said he hadn’t slept in days, and made a statement repeatedly, “I’m sorry that I shot up your shit.”
That is testimony that is believed by the Court.
So the defendant himself, through an admission to a witness, places himself at the scene of a shooting where [shots] were fired.
The trial court sentenced Schall to 36 months in prison and imposed
one-to-three years of postrelease control. Schall appealed, raising the following sole
assignment of error for review:
The doctrine of res judicata bars appellant’s conviction involving the possession of a firearm while under disability. Law and Analysis
Schall argues that the trial court erred as a matter of law by convicting
him of having weapons while under disability based on the same evidence the jury
used to acquit him of crimes involving the possession and use of a firearm.1 Schall
contends that when the jury acquitted him of felonious assault, improperly
discharging a firearm into a habitation and discharge of a firearm on or near
prohibited premises, “it implicitly made a determination in regards to Appellant’s
possession of a gun” — i.e., that Schall had not possessed a gun — and that, based
on the doctrine of res judicata/collateral estoppel, the trial court was required “to
accept the [jury’s] conclusion as it pertained to the possession of the gun” and was
precluded from finding that Schall knowingly possessed a firearm when it rendered
its verdict on the having weapons while under disability charge. Schall asserts that
the trial court was “not at liberty to reevaluate the credibility of a trial witness and
reach a different result on the issues” and that “the doctrine of res judicata barred
the trial court from disregarding the jury determination that there was not sufficient
evidence to reach a conclusion that [Schall] possessed a firearm.” He requests that
his conviction for having weapons while under disability be vacated and the case
against him dismissed.
In support of his argument, Schall cites the Second District’s decision
in State v. Hay, 169 Ohio App.3d 59, 2006-Ohio-5126, 861 N.E.2d 893 (2d Dist.),
1 Schall does not challenge his conviction for having weapons while under disability
based on the sufficiency or manifest weight of the evidence. and the Tenth District’s decisions in State v. Cordle, 10th Dist. Franklin No. 84AP-
484, 1985 Ohio App. LEXIS 5446 (Jan. 8, 1985), State v. Armstrong, 10th Dist.
Franklin No. 90AP-690, 1991 Ohio App. LEXIS 3407 (July 16, 1991), and State v.
Capaniro, 10th Dist. Franklin No. 94APC09-1377, 1995 Ohio App. LEXIS 1064
(Mar. 21, 1995). These cases are not persuasive.
In Hay, the trial court dismissed Count 1 of the indictment at the
conclusion of the state’s case after determining, as a matter of law, that there was
insufficient evidence that the defendant had furnished alcohol to a person identified
as W.F. Id. at ¶ 4. However, the trial court permitted two other counts to go to the
jury that were also predicated upon the defendant furnishing alcohol to W.F. Id. at
¶ 2-4, 11. The defendant was convicted on the other two counts. Id. at ¶ 4. On
appeal, the defendant argued that once the trial court concluded that the evidence
was insufficient to prove that the defendant had furnished alcohol to W.F. and
dismissed Count 1, it should have also dismissed Counts 2 and 3. Id. at ¶ 11. The
Second District agreed. It held that “[a]fter finding that the evidence was
insufficient as a matter of law to demonstrate that [the defendant] had furnished
alcohol to W.F.” and dismissing Count 1, “the doctrine of res judicata precluded the
court from allowing the remaining two counts * * * to be premised on those same
set of facts” and “required the trial court to dismiss [C]ounts 2 and 3.” Id. at ¶ 11,
26-28.
Here, there was no finding by the trial court that the evidence was
insufficient to support any of the charges at issue. In Cordle, 1985 Ohio App. LEXIS 5446, the parties had stipulated
that the defendant did not have a valid license, so the sole issue to be decided by the
jury when considering a charge of operating a motor vehicle without an operator’s
license was whether the defendant had actually operated the motor vehicle. Id. at 1.
The jury acquitted the defendant on that charge; however, the trial court found the
defendant guilty of operating a motor vehicle without reasonable control. Id. at 1-2.
In reversing the trial court’s conviction, the Tenth District stated:
[W]here a single issue is sent to the jury, and this issue negates an element of the offense simultaneously tried to the court, the trial judge must defer to the finding of the jury on that issue so as to preserve that issue for jury trial and to preclude a later judgment contrary to the jury verdict. The effect of this holding would prevent inconsistent verdicts, a principle of res judicata, and promote integrity in the jury system. Furthermore, trying the offenses simultaneously provides for judicial economy since the underlying facts arise from the same transaction and preserves the right to a jury trial on issues in offenses where such a right exist.
Id. at 6.
The court indicated that “unique circumstances” were present in that
case because “the only issue tried to the jury on the no operator’s charge was whether
[the defendant] ‘operated the motor vehicle,’” that issue was “also an element of the
offense tried to the court” and “the identical conduct forms the basis for both
offenses.” Id. at 5. The court noted however, that “[i]t is only where the issue is
identical in both cases tried to the court and jury that the judge must defer to the
jury’s verdict.” Id. at 6-7. In Armstrong, 1991 Ohio App. LEXIS 3407, and Capaniro, 1995 Ohio
App. LEXIS 1064, the Tenth District followed Cordle. In Armstrong, a charge of
vehicular homicide was submitted to the jury, which found the defendant not guilty,
and a charge of improper lane change was tried to the bench, which found the
defendant guilty. Id. at 2. Determining that “the entirety of the conduct for which
appellant was tried on these two charges was the same,” i.e., that “the violation of
R.C. 4511.33 was the basis for the charge under R.C. 2903.07,” the Tenth District
held that Cordle applied, i.e., “‘where a single issue is sent to the jury, and this issue
negates an element of the offense simultaneously tried to the court, the trial judge
must defer to the finding of the jury on that issue.’” Id. at 4-5, quoting Cordle at 6.
The Tenth District reversed the defendant’s conviction on the improper lane change
charge and entered a judgment of acquittal. Id. at 5.
In Capaniro, 1995 Ohio App. LEXIS 1064, the jury found the
defendant not guilty of operating a motor vehicle under the influence of alcohol and
operating a motor vehicle while under a court-ordered suspension and the trial court
found the defendant guilty of failing to maintain an assured clear distance. Id. at 1-
2. The parties had stipulated that the defendant’s driver’s license was under
suspension, so, in the court’s view, the only “essential issue” to be determined by the
jury was whether the defendant was the operator of the vehicle. Id. at 3. In reaching
its decision, the trial court acknowledged that the jury, by its not guilty verdict, had
found that the defendant had not been driving the vehicle but, nevertheless, entered
a guilty verdict on the failure to maintain an assured clear distance charge, stating that it found that the defendant’s witnesses were either “not credible or were biased
in favor of [the defendant] based on years of friendship.” Id. at 2.
On appeal, the Tenth District reversed the defendant’s conviction for
failure to maintain an assured clear distance, stating that “[b]y its finding of not
guilty, the jury found [the defendant] was not the driver of the vehicle” and “the trial
judge must defer to that finding.” Id. at 3-4. The state, however, had not filed an
appellate brief in that case and the court noted that, pursuant to App.R. 18(C), it
could “accept the appellant’s statement of the facts and issues as correct and reverse
the judgment if appellant’s brief reasonably appears to sustain such action.” Id. at
3. The Tenth District reversed the trial court’s judgment and remanded the case
with instructions that the trial court enter a judgment of acquittal. Id. at 4.
Even assuming these cases are still good law,2 this case is different.
This is not a case in which “a single issue” was sent to the jury that “negated an
element” of the offense tried by the trial court. See, e.g., State v. Lett, 160 Ohio
App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158, ¶ 39-46 (8th Dist.) (distinguishing
Cordle and rejecting defendant’s argument that he was denied due process when the
trial court found him guilty of having a weapon while under disability after the jury
had “expressly found on all counts that he did not possess a firearm,” noting that the
“firearm specification charges involve different elements and the conviction of one
does not preclude the conviction of the other”).
2 See, e.g., State v. Douthitt, 10th Dist. Franklin No. 18AP-547, 2019-Ohio-2528,
¶ 10-11; State v. Smith, 10th Dist. Franklin No. 14AP-33, 2014-Ohio-5443, ¶ 19-27; State v. Webb, 10th Dist. Franklin No. 10AP-289, 2010-Ohio-6122, ¶ 56-63. To obtain a conviction for felonious assault in violation of R.C.
2903.11(A)(2), the state needed to prove, beyond a reasonable doubt, that Schall
knowingly caused or attempted to cause physical harm to another or to another’s
unborn by means of a deadly weapon or dangerous ordnance, i.e., a firearm. To
obtain a conviction for improperly discharging a firearm into a habitation in
violation of R.C. 2923.161(A)(1), the state needed to prove, beyond a reasonable
doubt, that Schall, without privilege to do so, knowingly discharged a firearm at or
into an occupied structure that is a permanent or temporary habitation of any
individual. To obtain a conviction for discharge of a firearm on or near prohibited
premises in violation of R.C. 2923.162(A)(2), the state needed to prove, beyond a
reasonable doubt, that Schall “discharge[d] a firearm on a lawn, park, pleasure
ground, orchard, or other ground appurtenant to a schoolhouse, church, or
inhabited dwelling, the property of another, or a charitable institution.” R.C.
2923.13(A)(2) provides, in relevant part: “Unless relieved from disability under
operation of law or legal process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if * * * [t]he person * * * has been convicted
of any felony offense of violence[.]”
The charges at issue are all separate offenses, each requiring proof
beyond a reasonable doubt of a different set of elements. Although the jury could
have acquitted Schall on the charges of felonious assault, improperly discharging a
firearm into a habitation and discharge of a firearm on or near prohibited premises
if it found that Schall did not “possess a firearm,” as Schall argues, the jury could have also acquitted Schall on these offenses because it concluded that the state had
failed to meet its burden of proof as to one or more of the other elements of each of
those offenses. See, e.g., State v. Brown, 8th Dist. Cuyahoga No. 89754, 2008-Ohio-
1722, ¶ 26-29 (jury’s acquittal on charges of attempted murder and felonious assault
were not inconsistent with trial court’s determination of guilt on having a weapon
while under disability because the offenses are “separate charges, each requiring
proof beyond a reasonable doubt on a different set of elements”); State v. White, 8th
Dist. Cuyahoga No. 90839, 2008-Ohio-6152, ¶ 14 (“The distinction between the
charged offenses is that having a weapon under disability only requires a showing
that [the defendant] possessed a firearm, not that [the defendant] actually
discharged the firearm. If the jury did find [the defendant] not guilty of felonious
assault because it did not believe there was proof beyond a reasonable doubt to show
that he fired his firearm, that finding would not be inconsistent with proof that he
actually possessed the firearm. One can possess a firearm without firing it and, in
fact, need not be in actual physical contact with the firearm as long as the firearm is
readily at hand.”).
This court has previously considered — and rejected — arguments like
those made by Schall several times.
Under the doctrine of res judicata, “‘a valid, final judgment rendered
upon the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject to the previous action.’” State v.
Martin, 8th Dist. Cuyahoga No. 110576, 2021-Ohio-4213, ¶ 8, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). Collateral estoppel
is
“the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. Collateral estoppel ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’”
(Emphasis deleted.) State v. Eason, 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 56 (8th
Dist.), quoting State v. Lovejoy, 79 Ohio St.3d 440, 443, 683 N.E.2d 1112 (1997),
quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
In Eason, the defendant was charged with drug trafficking, drug
possession, possessing criminal tools, carrying concealed weapons, improperly
handling firearms in a motor vehicle and having weapons while under disability. Id.
at ¶ 8. The having weapons while under disability charge was tried to the bench, and
the jury considered the remaining charges against the defendant. Id. at ¶ 10. The
jury acquitted the defendant on the counts it considered, but the trial court found
the defendant guilty of having weapons while under disability. Id. The defendant
appealed, arguing, among other things, that his conviction for having weapons while
under disability was barred by collateral estoppel and was inconsistent with the
jury’s verdict. Id. at ¶ 1, 11, 51. Although it found that the jury and the trial court
had rendered inconsistent verdicts, i.e., the jury determined that the defendant did
not knowingly carry, have or transport the firearm for the purposes of the charges
of carrying concealed weapons and improperly handling firearms in a motor vehicle and the trial court determined that the defendant did knowingly acquire, have, carry
or use “the same firearm” for the purposes of the having weapons while under
disability charge, this court affirmed the defendant’s conviction for having weapons
while under disability, explaining as follows:
Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. * * * The instant matter neither involves successive prosecutions nor future proceedings. * * * [T]he jury’s acquittal did not preclude the trial court’s verdict finding appellant guilty of having weapons while under disability. * * *
The inconsistent verdicts did not pertain to the same count, but rather to separate and distinct counts in the indictment. * * * Each count of a multi-count indictment is deemed distinct and independent of all other counts, and thus inconsistent verdicts on different counts do not justify overturning a verdict of guilt. * * * Consistency between verdicts on several counts of a criminal indictment is unnecessary, and where the defendant is convicted on one or some counts and acquitted on others the conviction will generally be upheld, irrespective of its rational incompatibility with the acquittal. * * *
[T]he inconsistency between the jury’s and the trial court's verdicts does not require reversal of appellant’s conviction for having weapons while under disability. * * * Appellant’s conviction for having weapons while under disability did not violate his protections against double jeopardy and was not precluded by the doctrine of collateral estoppel.
(Emphasis deleted.) Id. at ¶ 56-57, 60, 67-70.
In State v. Callahan, 8th Dist. Cuyahoga No. 106445, 2018-Ohio-
3590, the jury acquitted the defendant of charges of aggravated murder, murder,
attempted murder, felonious assault, discharge of a firearm on or near prohibited premises and improperly discharging a firearm at or into a habitation3 but the trial
court found the defendant guilty of two charges of having weapons while under
disability. Id. at ¶ 2, 17, 19. The defendant argued that his convictions for having
weapons while under disability were barred by the doctrine of collateral estoppel
because the jury acquitted him of all the weapons-related charges, so there was no
evidence upon which the trial court could have found he illegally possessed a
firearm. Id. at ¶ 19.
This court disagreed and held that the alleged inconsistency between
the trial court’s and the jury’s verdicts did not require reversal of the defendant’s
convictions for having weapons while under disability. Id. at ¶ 30. Citing Eason,
this court reasoned that “‘“double jeopardy and collateral estoppel do not apply
where the inconsistency in the responses arise out of inconsistent responses to
different counts, not out of inconsistent responses to the same count”’” and affirmed
the trial court. Id. at ¶ 27, 30, 32, quoting Eason at ¶ 68, quoting Lovejoy, 79 Ohio
St.3d 440, 683 N.E.2d 1112, at paragraph two of the syllabus. See also State v.
O’Malley, 8th Dist. Cuyahoga No. 2021-Ohio-2038, ¶ 32-35 (collateral estoppel did
not bar trial court’s guilty verdict for having weapons while under disability
following jury’s acquittal for grand theft of firearm); State v. Rice, 8th Dist.
Cuyahoga No. 109712, 2021-Ohio-1882, ¶ 34 (rejecting defendant’s argument that
inconsistency between trial court’s guilty verdict on having weapons while under
3 The jury found the defendant guilty of receiving stolen property but acquitted him of the attendant firearm specifications. Id. at ¶ 17. disability charge and jury’s determination that defendant was “not complicit in the
commission of underlying offenses” of murder, attempted murder, felonious
assault, aggravated robbery, robbery, grand theft and kidnapping required reversal
of conviction for having weapons while under disability); State v. Stevens, 8th Dist.
No. 103516, 2016-Ohio-4699, ¶ 18-20 (rejecting defendant’s argument that jury’s
finding that defendant was not guilty of aggravated robbery, felonious assault and
the accompanying firearm specifications “factually precluded” the trial court from
convicting the defendant on having weapon while under disability charge because
“the jury concluded he did not have a weapon”); Brown, 2008-Ohio-1722, at ¶ 25-
29 (rejecting argument that conviction on bench-tried having weapon while under
disability charge was precluded by jury’s acquittal on attempted murder and
felonious assault charges, noting that “[i]n contrast with civil cases, consistency
between verdicts on several counts of a criminal indictment is unnecessary and,
where the defendant is convicted on one or some counts and acquitted on others,
the conviction will generally be upheld, irrespective of its rational incompatibility
with the acquittal”), citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018
(10th Dist.); State v. Hudson, 2017-Ohio-645, 85 N.E.3d 371, ¶ 17 (7th Dist.)
(“During a single prosecution for multiple offenses, a court is not prohibited from
finding a defendant guilty of having a weapon while under disability after a jury finds
him not guilty of certain offenses during which he was said to have possessed a
gun.”); State v. Douthitt, 10th Dist. Franklin No. 18AP-547, 2019-Ohio-2528, ¶ 10-
11 (“[U]nder our well established precedents, the trial court in its capacity as the independent finder of fact on the gun count was not constrained by the jury’s
determinations on the murder counts,” i.e., defendant’s contention that “‘the jury
verdicts of acquittal precluded his conviction for having a weapon while under
disability is not well-taken.’”), quoting State v. Smith, 10th Dist. Franklin No. 14AP-
33, 2014-Ohio-5443, ¶ 19-27 (affirming conviction on having weapons while under
disability charge tried to the bench despite jury verdicts of not guilty on aggravated
burglary, aggravated robbery and kidnapping charges); State v. Webb, 10th Dist.
Franklin No. 10AP-289, 2010-Ohio-6122, ¶ 56-63 (rejecting defendant’s double
jeopardy/collateral estoppel arguments that jury’s inability to reach a verdict on
improper handling count was inconsistent with trial court’s guilty verdict on charge
of having weapon while under disability).
This case involved a single proceeding, with different charges heard
by different factfinders, at Schall’s request. Based on the foregoing, Schall’s
conviction for having weapons while under disability was not barred by res judicata
or collateral estoppel. We overrule Schall’s assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s conviction having been affirmed, any bail pending appeal is
terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR