State ex rel. Yates v. Court of Appeals

512 N.E.2d 343, 32 Ohio St. 3d 30, 1987 Ohio LEXIS 343

• Court: Ohio Supreme Court
• Decided: August 12, 1987
• Docket: No. 86-743
• Status: Published

Opinions

Herbert R. Brown, J.

The central issue is whether the judgment of acquittal, entered by the trial court pursuant to Crim. R. 29(C), is a final verdict within the meaning of R.C. 2945.67. For the reasons which follow, we hold that it is and that, consequently, the state could not appeal therefrom. We further hold that the writ of prohibition should be granted to prevent the court of appeals from exercising jurisdiction.

I

R.C. 2945.67, in pertinent part, provides:

“(A) A prosecuting attorney, village solicitor, city director of law, or the attorney general * * * may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case.” (Emphasis added.)

The respondent granted the state’s motion for leave to appeal on the basis that judgments of acquittal granted pursuant to Crim. R. 29(C)¹ are not final verdicts. Respondent argues that R.C. 2945.67(A) was written broadly and designed to prevent a criminal defendant from being placed in double jeopardy. Here, a reversal of the trial court’s judgment of acquittal would reinstate the jury verdict of guilty and, therefore, respondent states, there would be no violation of relator’s guarantee against double jeopardy.

Respondent urges us to follow holdings by the United States Supreme Court to the effect that the constitutional Double Jeopardy Clause does not bar a government appeal where the successful prosecution of the appeal would not require a new trial. United States v. Scott (1978), 437 U.S. 82; United States v. Wilson (1975), 420 U.S. 332.

Respondent’s argument is not persuasive. R.C. 2945.67(A) has no analogous federal counterpart. The federal Criminal Appeals Act, Section 3731, Title 18, U.S. Code, provides, in pertinent part:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” (Emphasis added.)

The issue under Ohio law is not one of double jeopardy but rather whether a judgment of acquittal pursuant to Crim. R. 29(C) is a final verdict. This distinction was recognized by Justice Rehnquist in Scott, supra, who noted that in 1971 Congress adopted a new Criminal Appeals Act which shifted the focus from issues of statutory construction to issues involving the meaning and scope of the Double Jeopardy Clause. The court’s opinion in Scott acknowledges:

“In our first encounter with the new statute, we concluded that ‘Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.’ United States v. Wilson, 420 U.S. 332, 337 (1975).” Scott, supra, at 85, The Ohio Legislature has not taken that step.

In State v. Keeton (1985), 18 Ohio St. 3d 379, 18 OBR 434, 481 N.E. 2d 629, this court had occasion to consider a judgment of acquittal gránted pursuant to Crim. R. 29(A). We held, at paragraph two of the syllabus:

“A directed verdict of acquittal by the trial judge in a criminal case is a ‘final verdict’ within the meaning of R.C. 2945.67(A) which is not ap-pealable by the state as a matter of right or by leave to appeal pursuant to that statute.”

Respondent would distinguish Keeton on the ground that acquittal pursuant to Crim. R. 29(A) leads to double jeopardy whereas acquittal pursuant to Crim. R. 29(C) does not. However, as noted, R.C. 2945.67(A) prevents an appeal of any final verdict and is not tied to the Double Jeopardy Clause. Moreover, our opinion in Keeton draws no distinction between Rules 29(A) and 29(C).

Respondent makes the unpersuasive argument that a judgment of acquittal under Rule 29(A) is a final verdict but a judgment of acquittal under Rule 29(C) is not, even if both are grounded on a determination by the trial judge that the state produced insufficient evidence to convict. We reject such an incongruous result. The judgment of acquittal in the case sub judice, though entered after a jury verdict and upon the authority of Crim. R. 29(C), was grounded upon insufficiency of evidence.² It is a factual determination of innocence and as much a final verdict as any judgment of acquittal granted pursuant to Crim. R. 29(A).

Accordingly, we hold that a judgment of acquittal by a trial judge pursuant to Crim. R. 29(C) is a final verdict within the meaning of R.C. 2945.67(A), and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute.

II

We now consider whether a writ of prohibition should be allowed. This court has consistently held that in order for a writ of prohibition to issue, a relator must establish: (1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists. Manrow v. Court of Common Pleas of Lucas Cty. (1985), 20 Ohio St. 3d 37, 20 OBR 285, 485 N.E. 2d 713; State, ex rel. Corrigan, v. Griffin (1984), 14 Ohio St. 3d 26, 14 OBR 328, 470 N.E. 2d 894. A writ of prohibition cannot serve as a substitute for an appeal. Manrow, supra; State, ex rel. Ruffin, v. Court of Common Pleas (1976), 46 Ohio St. 2d 58, 75 O.O. 2d 142, 346 N.E. 2d 325.

However, where an inferior court is without jurisdiction to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court. State, ex rel. Johnson, v. Perry County Court (1986), 25 Ohio St. 3d 53, 58, 25 OBR 77, 81, 495 N.E. 2d 16, 21; State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St. 2d 326, 329, 59 O.O. 2d 387, 388, 285 N.E. 2d 22, 24. See, also, State, ex rel. Tempero, v. Colopy (1962), 173 Ohio St. 122, 123, 18 O.O. 2d 366, 367, 180 N.E. 2d 273, 274; and State, ex rel. Gelman, v. Common Pleas Court (1961), 172 Ohio St. 70, 72, 15 O.O. 2d 131, 132, 173 N.E. 2d 343, 344.

For the reasons discussed in this opinion, the writ of prohibition is allowed.

Writ allowed.

Moyer, C.J., Locher and Wright, JJ., concur. Sweeney, Holmes and Douglas, JJ., dissent.

1 Crim. R. 29(A) provides:

“Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.”

Crim R. 29(C) provides:

“Motion after verdict or discharge of jury. If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. It shall not be a prerequisite to the making of such motion that a similar motion has been made prior to the submission of the case to the jury.”

2 The significance of a factual insufficiency in the state’s case was recognized by this court in State v. Calhoun (1985), 18 Ohio St. 3d 373, 376, 18 OBR 429, 432, 481 N.E. 2d 624, 626, wherein Justice Douglas wrote:

“* * * This court fully recognizes that the termination on such a ground would be tantamount to an acquittal and would operate as a bar to any further prosecution. * * *”