State v. Empe, 90333 (7-31-2008)

2008 Ohio 3803

Opinions

JOURNAL ENTRY AND OPINION {¶ 1} This is a discretionary appeal from a judgment of the Cuyahoga County Court of Common Pleas, for which leave was granted pursuant to R.C. 2945.67(A). Appellant, the state of Ohio, wished to appeal the trial court's refusal to certify one of the state's witnesses as an "expert" witness.

{¶ 2} R.C. 2945.67(A) provides that the state may appeal as a matter of right a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, a motion for the return of seized property, or a motion granting postconviction relief. All other appeals are by leave at the discretion of the court of appeals except, of course, that the state may not appeal a final verdict. State v. Matthews (1998), 81 Ohio St.3d 375, 377-378.

{¶ 3} In this case, although the trial court's Crim. R. 29 judgment of acquittal was a final verdict and, thus, not appealable and not subject to being reversed, we initially granted leave to appeal the issue involving the expert witness certification. However, after oral argument and upon further examination of the record, we now conclude that a decision on that issue would be purely advisory and an improper exercise of judicial authority. Consequently, we conclude that leave was improvidently granted. We therefore dismiss this appeal.

It is ordered that defendant-appellee recover of plaintiff-appellant his costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

ANN DYKE, J., CONCURS

PATRICIA ANN BLACKMON, P.J., DISSENTS WITH SEPARATE OPINION