State v. Ralph

2022 Ohio 167

• Court: Ohio Court of Appeals
• Decided: January 24, 2022
• Docket: 2021-A-0044
• Status: Published

Opinion

[Cite as State v. Ralph, 2022-Ohio-167.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2021-A-0044

Plaintiff-Appellant, Criminal Appeal from the -v- County Court, Western District

JOHN A. RALPH, Trial Court No. 2020 CRB 00444 Defendant-Appellee.

MEMORANDUM OPINION

Decided: January 24, 2022 Judgment: Appeal dismissed

Colleen Mary O’Toole, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellant).

Thomas J. Simon, 1105 Bridge Street, P.O. Box 3048, Ashtabula, OH 44053 (For Defendant-Appellee).

THOMAS R. WRIGHT, P.J.

{¶1} On December 17, 2021, appellant, the state of Ohio, filed a notice of appeal

and motion for leave to appeal from a November 18, 2021 entry of the Ashtabula County

Court, Western Division, which granted appellee, John A. Ralph’s, Crim.R. 29(A) motion

for acquittal at the conclusion of trial.

{¶2} No response opposing the motion for leave has been filed.

{¶3} R.C. 2945.67 governs when a prosecutor may appeal: {¶4} “A prosecuting attorney * * * may appeal as a matter of right any decision of

a trial court in a criminal case * * * which decision grants a motion to dismiss all or any

part of an indictment, complaint, or information, a motion to suppress evidence, or a

motion for the return of seized property, or grants post conviction relief * * *, and may

appeal by leave of court to which the appeal is taken any other decision, except the final

verdict, of the trial court in a criminal case * * *. ”

{¶5} In the present appeal, the first question that arises is whether the state may

appeal the November 18, 2021 judgment as a matter of right or whether leave must first

be obtained under the statute. The Supreme Court of Ohio has held that a judgment of

acquittal is not appealable by the state as a matter of right or by leave of court. State v.

Keeton, 18 Ohio St.3d 379 (1985); State ex rel. Yates v. Court of Appeals for Montgomery

County, 32 Ohio St.3d 30 (1987). See also, State v. Mayfield, 8th Dist. No. 81924, 2003-

Ohio-2312.

{¶6} Further, in State ex rel. Ramirez-Ortiz v. Twelfth District Court of Appeals,

151 Ohio St.3d 46, 2017-Ohio-7816, the Supreme Court of Ohio held that the state is

permitted to appeal “a discrete legal issue when the question is capable of repetition” but

not misapplication of the law because that is tied to the specific facts of the case and

would serve no proper purpose. Nothing in the court’s entry before us, nor in the state’s

motion, shows that the trial court misstated the law. The issue is one of misapplication

and is therefore not appealable.

{¶7} Since this appeal is predicated upon the final verdict of acquittal in favor of

appellee, which is not appealable by the state, this court is without jurisdiction. Therefore,

Case No. 2021-A-0044 appellant’s motion for leave to appeal is overruled, and the appeal is hereby sua sponte

dismissed.

{¶8} Appeal dismissed

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2021-A-0044