An appeals court must reconsider a request by the Hamilton County Prosecutor’s Office to appeal the granting of a new trial to a man convicted of a murder that occurred more than 30 years ago, the Supreme Court of Ohio ruled today.

In a 5-2 decision, the Supreme Court directed the First District Court of Appeals to reconsider the prosecutor’s request to appeal a 2022 decision granting Elwood Jones a new trial for the 1994 murder of Rhoda Nathan. The prosecutor argued that the First District used the wrong standard when considering the request and committed reversable error.

Writing for the Court majority, Chief Justice Sharon L. Kennedy stated that when a prosecutor seeks leave to file an appeal, the state must show only the probability that errors it claimed the trial court made had occurred. The state does not have to prove it would actually succeed in reversing the trial court’s decision to be granted the right to present its appeal, the chief justice wrote.

Justices R. Patrick DeWine, Daniel R. Hawkins, and Megan E. Shanahan joined the chief justice’s opinion. Second District Court of Appeals Judge Michael Tucker, sitting for Justice Joseph T. Deters, also joined the opinion.

In a dissenting opinion, Justice Patrick F. Fischer stated the Ohio Rules of Appellate Procedure do not set a standard instructing the appeals court on how it must assess a prosecutor’s appeal in a criminal case. The First District had the discretion to deny the appeal, and did not abuse its discretion when it did.

Justice Jennifer Brunner joined Justice Fischer’s opinion.

Disputed Evidence Leads to Grant of New Trial
A Hamilton County Common Pleas Court jury found Jones guilty of aggravated felony murder, aggravated burglary, and aggravated robbery. He was sentenced to death.

Evidence at the trial included proof that Nathan’s one-of-a-kind pendant was missing and that one like it had been found by police in a toolbox in Jones’ vehicle. Also, Jones suffered a hand injury on the day of Nathan’s death, and that wound became infected with Eikenella corrodens, a bacterial infection that can occur with a fist-to-mouth injury. One of Nathan’s teeth had been knocked out during the assault.

Between 1996 and 2010, Jones tried several times to overturn his conviction in state and federal courts.

In 2019, Jones sought permission, or “leave,” to file a motion for a new trial based on claims of newly discovered evidence and prosecutorial misconduct. The trial court granted his request, Jones filed his motion, and the trial court conducted a hearing to determine whether a new trial should occur.

At the hearing, Jones presented evidence that the prosecutor withheld a tip about an alternate suspect and that the state was aware that Nathan’s pendant was not one of a kind. He also submitted proof that Nathan tested positive for Hepatitis B, so that if his hand injury had been caused by contact with Nathan’s mouth, he would be infected by Hepatitis B, which he is not.

In addition, Jones provided an expert who contradicted the trial testimony that the only way Jones could have gotten Eikenella corrodens in his hand was by punching someone in the mouth. The expert testified that Jones could have gotten the bacteria in his wound by putting his own mouth on it.

In 2022, the trial court granted Jones a new trial. It ruled that the state had failed to provide Jones with material evidence, which is a violation of the U.S. Supreme Court’s 1963 Brady v. Maryland decision. And the court found that the testimony regarding the bacterial infection was newly discovered scientific evidence, which also warranted a new trial.

In a criminal case, state law gives a prosecutor the right to appeal certain decisions of a trial court. For everything else, the law allows the prosecutor to seek permission, through leave of the court of appeals, to challenge trial court decisions other than a final verdict.

The prosecutor requested leave to appeal the decision granting Jones a new trial, arguing that the trial court committed two errors in allowing a new trial. First, the prosecutor said that it was wrong to rule that failure to disclose the tip of an alternative suspect violated the Brady rule. Second, the prosecutor claimed that the trial court erroneously allowed Jones to make arguments about withholding evidence that federal courts had already determined are not Brady violations.

The First District denied the request. It noted that the prosecutor’s motion only attacked the trial court’s finding that the state wrongly suppressed evidence and committed Brady violations. However, according to the court of appeals, the request did not challenge the trial judge’s ruling to grant a new trial based on the newly discovered scientific evidence regarding the source of the wound infection. Because the prosecutor did not raise all of these claims, the First District held that the appeal would be futile and the order granting a new trial would still be upheld even if an appeal were allowed.

The prosecutor asked the appeals court to reconsider its decision and maintained that its second argument about claims rejected by the federal courts included claims about the infection. The First District denied the reconsideration request, and the prosecutor appealed to the Supreme Court.

Supreme Court Analyzed Appeal Request Standard
Rule 5(C) of the appellate rules establishes the procedure to file a motion for leave to appeal, Chief Justice Kennedy explained. The rule requires a prosecutor to state “the errors that [it] claims occurred in the proceedings of the trial court.” It also requires the motion to be accompanied by affidavits or parts of the trial court record that “show the probability that the errors claimed did in fact occur.”

The prosecutor argued that the First District required more than necessary to allow it to present its appeal. The opinion noted that, according to Rule 5(C), the state must only “claim” that an error occurred, and a “claim” is an assertion that might not end up being true.

“The State just has to ‘claim’ that errors occurred during the trial-court proceedings, regardless of whether it will ultimately succeed if leave to appeal is granted,” the opinion stated.

The rule also requires the state to establish “the probability” that the claimed errors occurred. The Court stated that the rule uses “the probability,” which is different than “a probability.” “A probability” is similar to the preponderance of evidence standard, which means that something is more likely than not to be true. “The probability” can be lower, the opinion noted.

“An example is the probability of rain in the forecast, such as being 40 percent,” the opinion stated.

The probability can be lower than a preponderance of the evidence, so the state’s burden to seek leave to appeal is “not an onerous one,” the Court wrote.

The Court stated that the rules give appellate courts the discretion to grant leave to appeal; however, a court cannot disregard the law when making a decision. In rejecting the request to appeal, the First District did not address whether the state had shown the probability that the errors it claimed did occur.

Because the First District did not use the correct standard in determining whether errors occurred at the trial court level, the appeals court abused its discretion, the Court concluded. The Court remanded the case to the First District to apply the correct standard when deciding whether or not to consider the prosecutor’s appeal.

No Rule Violated, Dissent Maintained
In his dissent, Justice Fischer wrote that the First District did not make an error and did not abuse its discretion when denying the prosecutor’s appeal request. He wrote the requirements in Rule 5(C) set the minimum standards of information that must be filed for an appeals court to consider granting leave.

“The rule says nothing about how the court of appeals must evaluate the State’s motion for leave to appeal,” he wrote.

He noted the majority opinion found that failing to appeal on the grounds of newly discovered evidence did not matter at this stage of the proceedings. The majority’s reason was that the state did not have to prove it would succeed in reversing the trial court’s decision to be entitled to an appeal.

“And that is true – the State did not need to provide in its motion for leave to appeal that the claimed errors occurred – but it still needed to appeal all the grounds for the trial court’s decision. Otherwise, its appeal would be futile,” he wrote.

The appeals court has the discretion to deny leave for an appeal that would be futile, the dissent concluded.

2023-0772. State v. Jones, Slip Opinion No. 2025-Ohio-5389.

View oral argument video of this case.

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