State v. Kareski

[Cite as State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008.]

THE STATE OF OHIO, APPELLEE, v. KARESKI, APPELLANT.

[Cite as State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008.]

Criminal law—Evidence—Trial-court error in taking judicial notice of essential

fact—Appellate review—Effect of error on appellate court’s review of

sufficiency of evidence for purposes of determining whether retrial is

permissible under Double Jeopardy Clause—When erroneous judicial

notice fills gap created by prosecution’s failure to prove essential element,

judicially noticed fact may not be considered to determine whether

sufficient evidence exists to permit retrial.

(No. 2012-1242—Submitted April 24, 2013—Decided September 19, 2013.)

APPEAL from the Court of Appeals for Summit County, No. 25705,

2012-Ohio-2173.

____________________

PFEIFER, J.

{¶ 1} In this case, we address the implications of a trial court’s error in

taking judicial notice of a fact when that error results in the reversal of a

conviction. Specifically, we determine whether the fact that the court erroneously

judicially noticed can be considered as evidence by the appellate court in deciding

whether sufficient evidence exists such that retrial is permissible under the

Double Jeopardy Clauses of the Ohio and United States Constitutions. We hold

that the fact that was judicially noticed in error in this case should not have been

considered evidence as part of the appellate court’s sufficiency analysis.

Factual and Procedural Background

{¶ 2} A confidential informant and two Ohio Department of Public

Safety (“ODPS”) agents walk into a bar. The bar, the Rubber City Grille, is in

Akron, and defendant-appellant Matthew Kareski was bartending there on the

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evening of August 19, 2010. Mychael Kimbel, the confidential informant, was a

19-year-old employee of the ODPS.

{¶ 3} Kimbel approached the bar and asked Kareski for a Bud Light.

Kareski told Kimbel the price, grabbed a bottle of Bud Light, opened it, and

placed it before Kimbel. Kareski testified that he then noticed that Kimbel’s

hands did not have the stamp showing that he had provided proof of his age at the

door. He told Kimbel that he could not give him the beer until he showed proper

age identification. At that moment, Kimbel pretended that a call was coming in

on his cell phone. He passed the money to Kareski, said he would return with

identification, and walked away from the bar without the beer.

{¶ 4} Kareski was charged with violating R.C. 4301.69(A), which

prohibits the sale of beer to an underage person. R.C. 4301.01(B)(2) contains the

statutory definition of beer, defining it as “all beverages brewed or fermented

wholly or in part from malt products and containing one-half of one per cent or

more, but not more than twelve per cent, of alcohol by volume.”

{¶ 5} ODPS Agent Keenan Reese had watched the transaction and

retrieved the opened Bud Light as evidence. He sent a sample of the contents of

the bottle to a state lab to be analyzed, and a report was generated.

{¶ 6} At Kareski’s trial, however, the state had difficulty proving that

what Kareski had sold to Kimbel was, in fact, beer as defined by statute. The

particular bottle’s label itself did not disclose an alcohol content; a portion of the

label was covered or obscured by the state’s evidence label, but it is unclear

whether the bottle stated an alcohol content at all.

{¶ 7} Kareski objected to the admission of the lab report regarding the

contents of the bottle on the basis that no foundational witness testified as to its

contents and that the report was hearsay and not properly authenticated. The

court took the matter under advisement, and after some research, concluded, “I

don’t think the report comes in. I think that I can take judicial notice that beer is

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an intoxicating liquor.” After further discussion, the state asked, “Is the court

taking judicial notice that Bud Lite [sic] is beer?” The judge responded, “I’ll do

that, but it seems to me the argument is going to be was there any testimony about

what percentage of alcohol it contained.” When the jury returned, the judge stated

to the jury, “I will take judicial notice that Bud Light is in fact beer.” The state

then rested its case.

{¶ 8} The jury found Kareski guilty of a violation of R.C. 4301.69.

Kareski appealed, arguing that the trial court had erred in taking judicial notice

that Bud Light is beer pursuant to R.C. 4301.01(B)(2), that is, that it is a malt

product containing “one-half of one per cent or more, but not more than twelve

per cent, of alcohol by volume.” The Ninth District Court of Appeals agreed and

reversed the conviction. State v. Kareski, 9th Dist. Summit No. 25705, 2012-

Ohio-2173. The court held that the trial court should not have taken judicial

notice of an element of the crime Kareski was charged with; further, it held that

the court erred in taking judicial notice of a fact—the alcohol content by volume

of Bud Light—that was not something that was “generally known.” Evid.R.

201(B). The state did not appeal that decision.

{¶ 9} The issue before us is whether, given the trial court’s error, the

appellate court properly ordered a new trial. In particular, we must determine

whether the fact that the trial court judicially noticed in error should have been

considered as evidence in the appellate court’s determination of whether there

was sufficient evidence against Kareski to allow a retrial. Citing this court’s

holding in State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284,

the court of appeals held that although the taking of judicial notice of an element

of an offense was trial error, a reviewing court may consider the fact of which

judicial notice was taken when determining the sufficiency of the evidence

against the defendant. 2012-Ohio-2173, ¶ 12-13. Using this approach, the court

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found that the evidence was sufficient to sustain the conviction and that therefore

double jeopardy did not bar retrial.

{¶ 10} Kareski filed an application for reconsideration in the court of

appeals, requesting that the appellate court apply this court’s decision in State v.

Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), a case involving a trial

court’s error in taking judicial notice. Kareski argued that because the trial court

took judicial notice of an element of the offense in error, the absence of any

evidence on that element meant that retrial was barred by the Double Jeopardy

Clauses of the United States Constitution and the Ohio Constitution. The

appellate court denied Kareski’s motion for reconsideration.

{¶ 11} Kareski has appealed to this court, arguing that his case should not

have been remanded to the trial court for retrial. He alleges that the appellate

court erred in its determination of whether the state had offered sufficient

evidence to convict him at trial. Specifically, he argues that the appellate court

should not have included within its sufficiency consideration the information

regarding the alcohol content of Bud Light that the trial court had judicially

noticed in error.

{¶ 12} The cause is before this court upon the acceptance of a

discretionary appeal. State v. Kareski, 133 Ohio St.3d 1422, 2012-Ohio-4902, 976

N.E.2d 913.

Law and Analysis

{¶ 13} The issue before us is how an appellate court should treat a trial

court’s judicial-notice error when analyzing the sufficiency of the evidence to

determine whether the case should be remanded for retrial after reversal. Our

analysis hinges on whether this case is a Brewer case or a Lovejoy case.

{¶ 14} The Double Jeopardy Clauses of the Fifth Amendment to the

United States Constitution and Article I, Section 10 of the Ohio Constitution

protect criminal defendants against multiple prosecutions for the same offense.

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However, a retrial of a defendant after the reversal of a conviction does not

necessarily constitute a double-jeopardy violation. In general, if the reversal is

based on an error that occurred at trial, a retrial is appropriate. Lockhart v.

Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). If, on the other

hand, the appellate court’s reversal is based upon an insufficiency of the evidence,

a retrial violates double jeopardy. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct.

2141, 57 L.Ed.2d 1 (1978). The United States Supreme Court has explained the

distinction for double-jeopardy purposes between reversals based on insufficiency

of the evidence and those based upon trial errors:

While the former is in effect a finding “that the government has

failed to prove its case” against the defendant, the latter “implies

nothing with respect to the guilt or innocence of the defendant,”

but is simply “a determination that [he] has been convicted through

a judicial process which is defective in some fundamental respect.”

(Emphasis sic.) Lockhart at 40, quoting Burks at 15.

{¶ 15} In Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284,

this court considered the intersection of defective process and insufficient

evidence, that is, whether an appellate court should include in its sufficiency

determination evidence that had been admitted in error at trial. Brewer cited the

United States Supreme Court’s decision in Lockhart in holding that the wrongly

admitted evidence could still be relied upon by a reviewing court to determine the

sufficiency of the evidence:

As the United States Supreme Court held in Lockhart, we

hold that when evidence admitted at trial is sufficient to support a

conviction, but on appeal, some of that evidence is determined to

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have been improperly admitted, the Double Jeopardy Clauses of

the United States and Ohio Constitutions will not bar retrial.

Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265.

Brewer at ¶ 25.

{¶ 16} An important philosophical underpinning of Brewer is that the

state relies upon a trial court’s evidentiary rulings in the presentation of its case:

“If the evidence offered by the State is received after

challenge and is legally sufficient to establish the guilt of the

accused, the State is not obligated to go further and adduce

additional evidence that would be, for example, cumulative. Were

it otherwise, the State, to be secure, would have to assume every

ruling by the trial court on the evidence to be erroneous and

marshall and offer every bit of relevant and competent evidence.

The practical consequences of this would adversely affect the

administration of justice, if for no other reason, by the time which

would be required for preparation and trial of every case.” State v.

Wood (Mo.1980), 596 S.W.2d 394, 398-399; State v. Gray (1986),

200 Conn. 523, 538, 512 A.2d 217. Thus, retrial grants the state

“one full and fair opportunity” to present its evidence to the jury

free from error. See [Arizona v.] Washington, 434 U.S. [497,] 505,

98 S.Ct. 824, 54 L.Ed.2d 717 [1978].

Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at ¶ 19.

{¶ 17} Lockhart and Brewer both involved a trial court’s erroneous

admission of evidence offered by the state. The reversals in those cases therefore

were due to a fault in procedure rather than a lack of proof. In State v. Lovejoy,

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79 Ohio St.3d 440, 683 N.E.2d 1112, this court considered a case involving a trial

court’s error in taking judicial notice when the state had failed to offer admissible

evidence on an element of the crime. Lovejoy was charged with having a weapon

under disability, a charge that includes as a necessary element proof of a prior

conviction. The trial court in Lovejoy sua sponte reopened the evidence after

closing arguments to “take judicial notice of prior proceedings in an earlier case

to supply a crucial fact that the state had failed to prove,” i.e., the fact of a prior

conviction. Id. at 449. The appellate court held that the trial court had erred in

taking judicial notice, but ruled that the sufficiency of the evidence was moot in

light of its disposition of other issues in the appeal, and the state did not appeal

that holding. This court held that because judicial notice had been taken in error,

the court of appeals should have addressed the issue of the sufficiency of the

evidence, “review[ing] the remaining evidence to determine whether it was

sufficient to support a conviction.” Id. at 450. Thus, this court held that the

judicial notice of the prior conviction should not be considered by the appellate

court in its sufficiency evaluation.

{¶ 18} This court noted that despite the appellate court’s ruling that the

sufficiency issue was moot, that court had actually resolved the issue by

acknowledging that if the trial court had not taken judicial notice of the prior

conviction, the documents offered by the state were insufficient to prove that

Lovejoy was under a disability. Id. That being the case, this court held that the

appellate court’s remand for a retrial was improper:

Because the appellate court ruled on the judicial notice issue as it

did, the issue of the sufficiency of the evidence was not moot. In

fact, the sufficiency of the remaining evidence became the key

issue.

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* * * To simply remand the weapon under disability charge

for a retrial would give the state a “second bite at the apple” and a

chance to present evidence it failed to offer at the first trial. * * *

In this case, the Double Jeopardy Clause applies. In fact, this is

what the Double Jeopardy Clause was intended to prevent. If the

state fails to present sufficient evidence to prove every element of

the crime, it should not get a second opportunity to do that which it

failed to do the first time.

(Emphasis sic.) Id., 79 Ohio St.3d at 450, 683 N.E.2d 1112.

{¶ 19} This court’s decision in Lovejoy was consistent with the United

States Supreme Court’s decision in Burks v. United States, 437 U.S. 1, 98 S.Ct.

2141, 57 L.Ed.2d 1, in which the court held that “the Double Jeopardy Clause

precludes a second trial once the reviewing court has found the evidence legally

insufficient” and that “the only ‘just’ remedy available for that court is the

direction of a judgment of acquittal.” Id. at 18. As the court noted in Lockhart:

Burks was based on the view that an appellate court’s

reversal for insufficiency of the evidence is in effect a

determination that the government’s case against the defendant

was so lacking that the trial court should have entered a judgment

of acquittal, rather than submitting the case to the jury.

Lockhart, 488 U.S. at 39, 109 S.Ct. 285, 102 L.Ed.2d 265, citing Burks at 16-17.

{¶ 20} This court did not overrule Lovejoy in Brewer. Brewer

acknowledged that the trial court in Lovejoy took judicial notice of a prior

conviction because of a deficiency of proof offered by the state. 121 Ohio St.3d

202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 22. The trial court’s action exposed the

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state’s failure to prove its case. In Brewer, this court compared that case and

Lockhart to Lovejoy:

[T]his case and Lockhart involve a trial court’s erroneous

admission of evidence presented by the state during its case-in-

chief and the state’s reliance upon the erroneous evidentiary

rulings. In contrast, the facts presented in State v. Lovejoy, 79

Ohio St.3d 440, 683 N.E.2d 1112, differ dramatically from those

presented here and in Lockhart.

In Lovejoy, the state did not rely on an erroneous trial court

evidentiary ruling, but rather failed to meet its burden of proof to

present sufficient evidence to prove the defendant’s guilt beyond a

reasonable doubt. Recognizing the state’s failure, the trial court

sua sponte reopened the case to take judicial notice of [a fact] to

establish a missing element. * * * Thus, Lovejoy is factually

distinguishable from Lockhart and this case because in Lovejoy,

the state never relied on an erroneous evidentiary ruling in

deciding what evidence to present at trial. Instead, Lovejoy

involved the prosecution’s failure to meet the sufficiency-of-

evidence standard.

Brewer at ¶ 22.

{¶ 21} Is this case more akin to Lovejoy or Brewer? We find that it is

controlled by Lovejoy.

{¶ 22} As in Lovejoy, the trial court in this case judicially noticed a

factual element of the crime after the prosecution demonstrated an inability to

present evidence on that element. The prosecution in this case attempted to

submit a report on the testing of the contents of the bottle, but since the report

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lacked foundational testimony, the trial court did not allow it to be admitted as

evidence. The bottle itself was in the courtroom, but the witness who examined

the bottle on the stand was unable to discern any information on the particular

label regarding its alcohol content. The state then requested that the trial court

take judicial notice that the bottle contained beer as statutorily defined, and the

court complied. The state then rested its case.

{¶ 23} As in Lovejoy, the trial court filled a gap left by the state in proving

its case by taking judicial notice of an essential element and thereby committing

error. As in Lovejoy, the prosecution cannot claim to have relied on an

evidentiary ruling, because there was no ruling that the report or the bottle itself

was admissible on which to rely. As in Lovejoy, we cannot countenance allowing

the state to come to trial unprepared to prove its case only to be rescued by a trial

court taking judicial notice of an element the state has failed to prove, and

committing error in doing so.

{¶ 24} The court in Lockhart held that in conducting a sufficiency review,

a reviewing court must consider all the evidence admitted at trial, even

improperly admitted evidence: “[W]here the evidence offered by the State and

admitted by the trial court—whether erroneously or not—would have been

sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not

preclude retrial.” (Emphasis added.) Lockhart, 488 U.S. at 34, 109 S.Ct. 285,

102 L.Ed.2d 265.

{¶ 25} But here, the sole evidence offered by the state on the issue of the

alcohol content of the beer in question was never admitted. Instead, the trial court

saved the state’s case by taking judicial notice that the contents of the Bud Light

bottle met the statutory definition of “beer.” We thus find unavailing any claim

by the state that it relied on the trial court’s taking of judicial notice; Brewer’s

concern about forcing the state to offer cumulative evidence on every element

rings hollow when the state offered nothing that the trial court deemed admissible.

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{¶ 26} Therefore, we conclude that the appellate court erred when it relied

upon the trial court’s taking of judicial notice of the alcohol content of Bud Light

in its review of the sufficiency of the evidence against Kareski and when it

remanded the case for retrial. Since there was no evidence admitted on that

statutory element of the alcohol content of the substance sold by Kareski to the

informant, there was insufficient evidence for a conviction, and the Double

Jeopardy Clauses of the Ohio Constitution and the United States Constitution bar

a retrial. Accordingly, we vacate Kareski’s conviction.

Judgment reversed.

O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.

O’CONNOR, C.J., and LANZINGER, J., concur in judgment and concur

separately.

FRENCH, J., dissents.

____________________

LANZINGER, J., concurring in judgment only.

{¶ 27} I concur in the judgment. I would not, however, simply

distinguish, but would overrule State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-

593, 903 N.E.2d 284. In cases like this, it is not useful to ask whether retrial may

be allowed on grounds of trial error or whether retrial is prohibited by double

jeopardy on grounds of insufficiency of the evidence. After all, the state argues

that it relied on the court’s judicial notice under Evid.R. 201 that Bud Light is

beer. The state maintains that this ruling is “trial error” in the admission of

evidence. Under Brewer’s standard, all evidence, even that improperly admitted,

is considered when determining sufficiency of the evidence; therefore, retrial is

always possible.

{¶ 28} The Brewer majority had accepted the federal rule stated in

Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), that the

Double Jeopardy Clause does not bar retrial when all the evidence admitted by the

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trial court is sufficient to support a guilty verdict. Yet, as Chief Justice Moyer

pointed out in his dissent in Brewer,

We held [in State v. Lovejoy, 79 Ohio St.3d 440, 683

N.E.2d 1112 (1997)] that double-jeopardy principles barred retrial,

because retrial under such circumstances [when the trial court sua

sponte reopens the evidence to take judicial notice of a fact

essential to the state’s case] “is what the Double Jeopardy Clause

was intended to prevent. If the state fails to present sufficient

evidence to prove every element of the crime, it should not get a

second opportunity to do that which it failed to do the first time.”

Id. The court of appeals, when reviewing the evidence for

sufficiency, was constrained to use only the evidence that was

properly admitted; because this evidence was insufficient,

principles of double jeopardy barred a new trial. Id.

121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at ¶ 29 (Moyer, C.J.,

dissenting).

{¶ 29} This court’s holding in Lovejoy and the U.S. Supreme Court’s

holding in Lockhart thus were in conflict regarding whether evidence that was

improperly admitted may be considered when reviewing a sufficiency-of-the-

evidence claim. Chief Justice Moyer explained,

In this instance, pursuant to Lovejoy, Ohio’s Double

Jeopardy Clause would offer greater protection from multiple

prosecutions than the federal clause by narrowing the

circumstances under which a defendant may be retried when the

state fails to prove its case during the first go-around. Although

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we have historically found Ohio’s Double Jeopardy Clause to be

coextensive with its federal counterpart, Ohio’s clause is not

limited by the federal clause.

Id. at ¶ 34 (Moyer, C.J., dissenting). I agree. The state has one fair and full

opportunity to be put to its proof against a criminal defendant and should ensure

that it satisfies each element of the offense by proof beyond a reasonable doubt to

support a conviction. I would clarify the rule by holding that Brewer is no longer

good law. I concur in judgment reversing Kareski’s conviction.

O’CONNOR, C.J., concurs in the foregoing opinion.

____________________

FRENCH, J., dissenting.

{¶ 30} I respectfully dissent from the majority’s opinion, which I consider

to be a departure from settled double-jeopardy principles recognized by the

United States Supreme Court and adopted by this court in the context of the Ohio

Constitution. By equating a reversal for evidentiary trial error with an acquittal

for constitutionally insufficient evidence, the majority’s holding runs headlong

into a thicket of state and federal constitutional problems and will undoubtedly

cause uncertainty and confusion for appellate courts.

{¶ 31} The Fifth Amendment’s Double Jeopardy Clause bars retrial

following a reversal for insufficiency of the evidence, but not following a reversal

for “trial error,” such as the “incorrect receipt or rejection of evidence.” Burks v.

United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Unlike a

reversal for evidentiary trial error, a reversal for constitutionally insufficient

evidence is the equivalent of a trial court’s judgment of acquittal at the close of all

of the evidence. Id. at 16-17. Reversal for insufficiency represents a legal finding

that, after viewing the record evidence in a light most favorable to the

prosecution, no rational trier of fact could have found the essential elements of the

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crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 32} In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d

265 (1988), the United States Supreme Court explained which evidence an

appellate court must consider in a sufficiency analysis once it has determined that

the conviction should be reversed due to trial error in the admission of evidence.

Because a reversal for insufficiency of the evidence “should be treated no

differently than a trial court’s granting a judgment of acquittal at the close of all

the evidence,” the court held that an appellate court must consider “all of the

evidence admitted by the trial court,” whether or not the evidence was

erroneously admitted. Id. at 41. When the evidentiary insufficiency exists only

because of the appellate court’s initial conclusion that certain evidence was

admitted in error, the reversal is one based on trial error, and a reversal will not

bar retrial. Id. at 40. In State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903

N.E.2d 284, syllabus, this court explicitly “followed” Lockhart in the context of

the Ohio Constitution. See also State v. Yarbrough, 95 Ohio St.3d 227, 2002-

Ohio-2126, 767 N.E.2d 216, ¶ 80 (applying the “all evidence” rule established in

Lockhart).

{¶ 33} I am compelled, under the logic of Burks, Lockhart, and Brewer, to

view the reversal in this case as one based on trial error. The evidentiary

insufficiency existed only because the court of appeals concluded that the trial

court erred in taking judicial notice of an adjudicative fact, i.e., that Bud Light is

beer.1 See Lockhart at 40 (finding “trial error” when “the trial court erred in

admitting a particular piece of evidence, and without it there was insufficient

evidence to support a judgment of conviction”). With that judicially noticed fact,

there was sufficient evidence to support Kareski’s conviction: the remaining

1. The propriety of that conclusion is not before us in this appeal.

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evidence proved that Kareski, while bartending, served a bottle of “Bud Light

beer” to a 19-year-old. Accordingly, the court of appeals was correct to include

the judicially noticed fact in its sufficiency analysis.

{¶ 34} The majority acknowledges that the judicially noticed fact “saved

the state’s case,” majority opinion at ¶ 25, yet it concludes that the court of

appeals should have subtracted that fact from its sufficiency analysis. That is

precisely what Lockhart says not to do. A reviewing court must consider “all of

the evidence admitted by the trial court,” regardless of whether that evidence was

admitted erroneously. Lockhart, 488 U.S. at 41, 109 S.Ct. 285, 102 L.Ed.2d 265.

Reviewing the “same quantum of evidence” is what “make[s] the analogy

complete” between a reversal for insufficiency on the one hand, and the trial

court’s granting of an acquittal at the close of the evidence on the other. Id. at 42.

Reviewing the sufficiency of only some of the evidence would destroy that

analogy, and a finding of insufficiency would not equate to an acquittal for

double-jeopardy purposes.

{¶ 35} The majority relies on the “remaining evidence” standard, which

this court created, without supporting authority, in State v. Lovejoy, 79 Ohio St.3d

440, 450, 683 N.E.2d 1112 (1997). But we cannot apply such a standard for the

simple reason that it conflicts with the “all evidence” standard established in

Lockhart, which is a binding interpretation of the United States Constitution. Our

decision in Lovejoy did not rely on the Ohio Constitution to support a “remaining

evidence” standard. In fact, this court did not directly confront that question until

Brewer, in which we distinguished Lovejoy, but also expressly adopted the

Lockhart rule in the context of the Ohio Constitution. Id. at syllabus. While the

concurring opinion calls for an overruling of Brewer, which is no more than an

adoption of Lockhart, I believe that Brewer is the only case keeping Ohio on track

with the constitutional holdings in Burks and Lockhart. We have historically

treated the Ohio Double Jeopardy Clause as “coextensive” with its federal

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counterpart, State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996),

and I see no valid reason to depart from that practice in this case.

{¶ 36} Lockhart’s “all evidence” rule is logical, straightforward, and, as a

constitutional matter, mandatory. I would affirm the court of appeals’ judgment

following Lockhart and hold that a reversal for an improper judicial notice of fact

constitutes a reversal for trial error and that an appellate court must consider the

judicially noticed fact in its sufficiency-of-the-evidence analysis. Therefore, I

respectfully dissent.

____________________

Cheri B. Cunningham, Akron Director of Law, Michael J. Defibaugh,

Assistant Director of Law, and Gertrude Wilms, Akron Chief City Prosecutor, for

appellee.

Amer Cunningham Co., L.P.A., Jack Morrison Jr., Thomas R. Houlihan,

and Scott E. Mullaney, for appellant.

Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,

Assistant Prosecuting Attorney, urging affirmance for amicus curiae, Franklin

County Prosecuting Attorney Ron O’Brien.

________________________

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