A Hamilton County man who shot and killed his ex-girlfriend’s boyfriend can be retried for aggravated murder, the Ohio Supreme Court ruled today, because an appeals court improperly invalidated the jury’s verdict by substituting its own opinion about what the evidence showed.

Earl Jones was convicted of aggravated murder, felony murder, and murder for killing Kevin Neri in 2016 in the driveway of the home Neri shared with Cyerra Prather. Prather and Jones had a child together, but their relationship ended in 2015. Jones shot Neri on a night that Jones was scheduled to pick up his child for a visit.

The First District Court of Appeals found several errors with the trial court’s conviction of Jones, and remanded the case for a new trial on the felony murder and murder charges. But the appeals court dismissed the aggravated murder charge, finding Jones did not act with the prior calculation and design alleged by Hamilton County prosecutors. A divided Supreme Court ruled that the First District improperly substituted the jury’s view of the evidence with its own and directed the trial court to consider the aggravated murder charge too.

In the Court’s lead opinion, Justice R. Patrick DeWine wrote that when an appeals court determines whether the evidence is sufficient to establish prior calculation and design, it must consider “whether the evidence, when viewed in the light most favorable to the prosecution, supports a finding that a defendant acted with advance reasoning and purpose to kill.” Justice DeWine stated the First District improperly conducted its own weighing of the evidence, rather than simply reviewing whether a reasonable jury could properly find Jones acted with prior calculation and design.

Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy joined Justice DeWine’s opinion. Justice Patrick F. Fischer concurred in judgment only.

In a dissenting opinion, Justice Michael P. Donnelly wrote the Court should have not reviewed the case and simply applied settled law to correct a “perceived error.” He stated the lead opinion does not provide clear guidance to Ohio courts and “raises more questions than it answers.” Justice Jennifer Brunner joined Justice Donnelly’s dissent.

Justice Melody J. Stewart stated she would dismiss the appeal as having been improvidently accepted.

Feud Turns Deadly
Jones and Neri disliked each other. Jones harassed Neri through text messages and social media. Neri took jabs at Jones, including taunting Jones by claiming to be a better father. The two men argued when Jones would go to Prather’s house to pick up or drop off their child, and more than once, neighbors reported the encounters to police.

The two men developed a habit of scheduling fistfights – typically at a time and location away from Prather’s home – but the two had not actually kept an appointment to fight.

On the night of the shooting, Jones had arranged to pick up his child from Prather. The two men agreed to meet and fight that same night at an intersection about six houses way from Prather’s home.

Jones drove to Prather’s home and parked in a no-parking zone immediately in front of the house. He grabbed a loaded gun, stuffed it in his pocket, and got out of the car, leaving the car engine running and the driver’s side car door open.

Neri was standing on the front porch, and the two men began walking toward each other. Neri took off his sweatshirt as he approached. Jones pulled the gun out of his pocket and shot Neri once. Neri tried to flee, but Jones fired two more shots as Neri was running.

Jones drove to the Hamilton County Sheriff’s Department and turned himself in. Neri was transported to a hospital where he died.

Portion of Conviction Overturned
Jones was indicted for aggravated murder, felony murder, murder, and carrying a concealed weapon. At his trial, he claimed he killed Neri in self-defense. The jury found Jones guilty on all charges.

Jones appealed his conviction to the First District, raising several issues, including that there was not enough evidence to convict him of aggravated murder. He maintained the prosecution did not prove at trial that he acted with prior calculation and design.

In a split decision, the First District found Jones purposely killed Neri, but did not engage in a “studied consideration of the method, means, or location of the killing.” The appeals court found Jones did not act with prior calculation and design because he planned to engage in a fistfight with Neri up the street later that night and did not expect Neri to be at the house at the time. The First District concluded it would defy logic to plan to kill Neri in front of the house with witnesses around and his child present.

Because the appeals court concluded there was insufficient evidence to convict Jones of aggravated murder, double jeopardy prevented him from being tried again on the charge. However, the appeals court ruled Jones could be charged with the other two murder counts, and affirmed the conviction of carrying a concealed weapon.

The prosecutors appealed the First District’s decision on the aggravated murder charge to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Appeals Court Reasoning
Justice DeWine explained the prosecution’s arguments can be distilled to the single question, “Did the state present evidence of prior calculation and design sufficient to support Jones’s conviction for aggravated murder under R.C. 2903.01(A)?”

In reviewing the sufficiency of the evidence, it is the role of the jury to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from the facts, the lead opinion stated. The role of the appeals court is limited, the Court wrote.

The appeals court does not examine whether the “evidence should be believed or assess the evidence’s credibility,” the lead opinion noted, but rather an appeals court determines “whether the evidence against a defendant, if believed, supports the conviction.”

The Court stated the appeals court’s role was to ask, “could a reasonable juror – believing the state’s evidence and drawing all reasonable inferences in the state’s favor – find beyond a reasonable doubt that Jones acted with advance reasoning to formulate a purpose to kill Neri?”

Actions Met Elements of Crime
The actions Jones took on the night of the shooting would allow a reasonable jury to conclude Jones acted with prior calculation and design, even if the evidence could also lead to other inferences, the opinion stated. Deciding what occurred is a question for the jury in this case, and it was not the role of the appellate court “to substitute its judgment for that of the factfinder,” the Court stated.

The Court agreed that simply possessing a gun was not enough to prove that Jones planned to use the gun to kill Neri. But the Court reasoned that the circumstances leading up to the shooting in this case, including Jones’s decision to “bring a loaded gun to a fistfight,” supported the jury’s finding that Jones had acted with prior calculation and design.

“In sum, the court of appeals conducted its own assessment of the evidence and drew the inferences it found most persuasive, rather than crediting the state’s evidence and drawing all reasonable inferences in the state’s favor,” the opinion stated. This was “an inappropriate basis to reverse Jones’s conviction for insufficient evidence.”

State Failed to Prove Essential Elements, Dissent Stated
In his dissent, Justice Donnelly noted that if the prosecution proves Jones killed Neri without justifiable cause, he should be punished. However, he wrote “even a giant spotlight shining on the evidence in the state’s favor fails to reveal” the prosecutors proved Jones acted with prior calculation and design.

The dissent stated the evidence does not prove Jones acted with “advanced reasoning” and questioned how the lead opinion squares the “inference of intent to use a firearm with the right to bear arms?”

The dissent noted the Court allowed the jury to infer from Jones’s carrying of a gun that he intended to kill Neri. He noted the county sheriff’s in 2020 issued nearly 170,000 licenses to carry concealed firearms.

“Does this mean that all those Ohioans who just last year received license to carry a firearm intend to use their firearm every time they lawfully carry a concealed weapon,” Justice Donnelly wrote.

2020-0368. State v. Jones, Slip Opinion No. 2021-Ohio-3311.

View oral argument video of this case.

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