State ex rel. Yates v. Court of Appeals for Montgomery County

• Decision Date: 12 August 1987
• Docket Number: No. 86-743,86-743
• Citation: 512 N.E.2d 343,32 Ohio St.3d 30
• Parties: The STATE, ex rel. YATES, v. COURT OF APPEALS FOR MONTGOMERY COUNTY.
• Court: Ohio Supreme Court

Page 30

32 Ohio St.3d 30

512 N.E.2d 343

The STATE, ex rel. YATES, v. COURT OF APPEALS FOR MONTGOMERY COUNTY.

No. 86-743.

Supreme Court of Ohio.

August 12, 1987.

Syllabus by the Court

A judgment of acquittal by the trial judge, based upon 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. (State v. Keeton [1985], 18 Ohio St.3d 379, 18 OBR 434, 481 N.E.2d 629, approved and followed.)

IN PROHIBITION.

The relator, Robert R. Yates, charged with carrying a concealed weapon in violation of R.C. 2923.12(A), was found guilty by a jury in the Montgomery County Court of Common Pleas on June 5, 1985. Yates then filed a motion for judgment of acquittal pursuant to Crim.R. 29(C). On June 11, 1985, the trial court granted the motion on the grounds of (1) insufficient evidence of guilt and (2) refusal to grant Yates' request to waive a jury.

The state filed a motion for leave to appeal the judgment of acquittal, asserting R.C. 2945.67(A) as its authority. On November 19, respondent, the Montgomery County Court of Appeals, granted the motion.

On May 13, 1986, relator commenced the present action in prohibition, seeking to prevent the court of appeals from exercising jurisdiction. Respondent answered, saying that relator failed to state a claim upon which relief could be granted.

Kurt R. Portmann, County Public Defender, and Paul M. Courtney, Dayton, for relator.

Anthony J. Celebrezze, Jr., Atty. Gen., and David E. Northrop, Columbus, for respondent.

HERBERT R. BROWN, Justice.

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, 98 S.Ct. 2187, 57 L.Ed.2d 65; United States v. Wilson (1975), 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232.

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, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975)." Scott, supra, 437 U.S. at 85, 98 S.Ct. at 2191. 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 granted 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 appealable 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., and LOCHER and WRIGHT, JJ., concur.

SWEENEY, HOLMES and DOUGLAS, JJ., dissent.

HOLMES, Justice, dissenting.

By providing protections to criminal defendants far in excess of the Constitution's double jeopardy provision, the majority here has placed trial court error beyond rational appellate overview. The majority opinion significantly limits the power of the prosecution to thrash out purely legal issues which has traditionally been accomplished by allowing the prosecution to appeal, by leave of court. I, therefore, dissent.

The United States Supreme Court has, on a number of occasions, reviewed situations "on all fours" with the case sub judice. In United States v. Kopp (1976), 429 U.S. 121, 97 S.Ct. 400, 50 L.Ed.2d 336, the defendant was found guilty after trial to the court. Following the trial, but prior to sentencing, the trial court dismissed the indictment. The issue upon appeal was whether, in fact, the prosecution could appeal the case. The United States Supreme Court, in a unanimous opinion, stated the following:

"In United States v. Wilson, 420 U.S. 332 [95 S.Ct. 1013, 43 L.Ed.2d 232] (1975), we held that double jeopardy would not bar a * * * [prosecution] appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the dismissal of the indictment here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial." (Emphasis added.) Id. at 122, 97 S.Ct. at 401.

In United States v. Morrison (1976), 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1, the defendant was found guilty by the trial court. After the finding, but prior to sentencing, the trial court reconsidered its previous denial of a motion to suppress evidence and thereby overturned its own finding. The issue upon appeal, as in the case here, was...