State v. Bistricky, 89-708

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MOYER
• Citation: 555 N.E.2d 644,51 Ohio St.3d 157
• Parties: The STATE of Ohio, Appellant, v. BISTRICKY et al., Appellees.
• Docket Number: No. 89-708,89-708
• Decision Date: 30 May 1990

Page 157

51 Ohio St.3d 157 555 N.E.2d 644 The STATE of Ohio, Appellant,
v.
BISTRICKY et al., Appellees. No. 89-708. Supreme Court of Ohio. Submitted April 10, 1990.
Decided May 30, 1990. Syllabus by the Court

A court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to review substantive law rulings made in a criminal case which result in a judgment of acquittal so long as the judgment itself is not appealed.

In April 1988, the Cuyahoga County Prosecutor filed an indictment against five Cleveland police officers charging that they "unlawfully and purposely did sell or offer to sell a controlled substance, to-wit: Cocaine, a Schedule II drug, being an amount equal to or exceeding three times the bulk amount," in violation of R.C. 2925.03(A)(7). Defendants waived a trial by jury and the matter was tried by a judge of the Court of Common Pleas of Cuyahoga County.

[555 N.E.2d 645] The state's case urged that the defendants aided, abetted, assisted and protected the sale of cocaine by Arthur Feckner. After presentation of the state's case, the defendants moved for acquittal pursuant to Crim.R. 29. Defendants argued, inter alia, that

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they were immune from prosecution under R.C. 3719.14(B), and that pursuant to the requirements of Crim.R. 29, there was insufficient evidence to sustain a conviction.

The trial court ruled that the exemption in R.C. 3719.14 is not an affirmative defense; found that as a matter of law defendants were entitled to the benefit of the privileges defined in R.C. 2901.01 and 3719.14; and construed the exemption in R.C. 3719.14 to "include sale and delivery of drugs." The trial court entered a verdict in favor of all defendants.

In support of its motion for leave to appeal, the state raised two contentions: (1) that the trial court erred in its determination that as a matter of law the exemption contained in R.C. 3719.14 is not an affirmative defense; and (2) the trial court erred in expanding the plain language of R.C. 3719.14(B) to include "sale and delivery of drugs." The state conceded that the principles of double jeopardy prohibited the retrial of the defendants, but asserted that pursuant to R.C. 2945.67(A), the court of appeals may consider rulings made by the trial court other than the verdict of acquittal. The court of appeals dismissed the appeal, stating that the "[m]otion by appellant for leave to appeal is denied. Without evaluating the trial court's analysis, we lack authority to review the challenged ruling. * * * [Citations omitted.]"

The cause is before this court upon the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Jack H. Hudson, Cleveland, for appellant.

Weston, Hurd, Fallon, Paisley & Howley and Thomas C. Buford, Cleveland, for intervenor trial court.

Nick Tomino, Director of Law, and Gary R. Williams, Cleveland, urging reversal for amicus curiae, City of Cleveland.

Patrick A. D'Angelo, Cleveland, urging affirmance for amicus curiae, Cleveland Police Patrolmen's Ass'n.

Paul L. Cox, urging affirmance for amicus curiae, Fraternal Order of Police of Ohio, Inc.

Chattman, Garfield, Friedlander & Paul and Douglas J. Paul, Cleveland, urging affirmance for amicus curiae, Fraternal Order of Police, Cleveland Lodge No. 8.

MOYER, Chief Justice.

The state raises three issues. Two concern the substantive law questions resulting from the trial court's rulings, and one challenges the conclusion of the court of appeals that it has no authority to review the trial court's rulings. Because the court of appeals did not render an opinion or judgment on either of the substantive...