Opinion
29038
05-06-2021
STATE OF OHIO Plaintiff-Appellant v. MICHAEL J. BAKER Defendant-Appellee
Andrew French Attorney for Appellee, State of Ohio Michael Brush Michael Miller Attorneys for Appellee, Michael Baker
Criminal Appeal from Common Pleas Court Trial Court Case No. 2019 CR 01766
Andrew French
Attorney for Appellee, State of Ohio
Michael Brush
Michael Miller
Attorneys for Appellee, Michael Baker
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} The State of Ohio filed a notice of appeal from the January 27, 2021 "Judgment of Acquittal" issued by the trial court in the criminal case against Michael J. Baker. The State also filed a motion for leave to appeal, which begins:
The State of Ohio asks this Court to grant leave to appeal the trial court's decision granting Michael Baker's Crim.R. 29(A) motion for acquittal at the close of the State's case-in-chief, which was announced in open court on January 27, 2021, and journalized by entry filed later that day. The authority for the State's appeal is found in R.C. 2945.67(A) and App.R. 5(C), and the grounds are set out in the accompanying memorandum.
The State's memorandum also says that it "seeks leave to appeal the trial court's decision to grant Michael Baker's motion for acquittal under Crim. R. 29(A)." The State contends that the trial court used an improper legal standard for deciding the motion, arguing that had the court actually viewed the evidence in the light most favorable to the State, it would have found the evidence sufficient for a conviction on the gross sexual imposition charge.
{¶ 2} The State has a limited right to appeal four kinds of orders as a matter of right. R.C. 2945.67(A). This case is not an appeal of right. The State may also seek a discretionary appeal under R.C. 2945.67(A), which allows a prosecutor to "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." (Emphasis added.) "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 ex rel. Yates v. Court of Appeals for Montgomery Cty., 32 Ohio St.3d 30, 512 N.E.2d 343 (1987), syllabus. The same is true for a Crim.R. 29(A) acquittal. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 14-17. In discretionary appeals, "[b]ecause reviewing courts are generally prohibited from issuing opinions when there is no case or controversy, appellate courts should exercise caution to accept appeals of this nature only when the issues raised are likely to be repeated in other cases." Katz, Martin & Macke, Baldwin's Ohio Practice, Section 80:23 (3d Ed.2020), citing State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, ¶ 32 and State v. Bistricky, 51 Ohio St.3d 157, 158-159, 555 N.E.2d 644 (1990).
{¶ 3} Because the State designated the January 27, 2021 "Judgment of Acquittal" as the order on appeal, and specifically asked for leave to appeal "the trial court's decision to grant Michael Baker's motion for acquittal under Crim.R. 29(A)," we issued a show cause order to the State. See Ross at ¶ 21, ¶ 51 (not reviewing or disturbing an acquittal order where "[t]he state did not expressly disavow an appeal of the judgment of acquittal itself [but] included the trial court's order 'granting the Defendant Judgment of Acquittal' within the description of its appeal"). We noted in our show cause order that certain evidentiary/legal rulings underlying an acquittal may be appealed, and ordered the State to show why its appeal was permitted under the statute prohibiting the State from appealing a final verdict. R.C. 2945.67(A). Michael Baker independently opposed the State's motion for leave on the same grounds.
{¶ 4} The State's response to the show cause order frames the issue in terms of a legal issue concerning the applicable standard for a Crim.R. 29(A) motion. The State argues:
In its appeal here, the State seeks leave to appeal what it contends was the trial court's failure to apply the correct legal standard to Baker's motion for acquittal. In particular, the State seeks to appeal the trial court's failure, when considering Baker's motion, to construe the evidence in the light most favorable to the prosecution, i.e. a sufficiency-of-the-evidence review, as the law requires. See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978). As established by Appendix B to the State's February 25, 2021 motion for leave to appeal, rather than considering Baker's motion for acquittal under the proper sufficiency-of-the-evidence standard, the trial court chose to weigh the evidence in its mind and draw inferences from the evidence that it believed were reasonable. In other words, the trial court applied a standard of review akin to a consideration of the manifest weight of the evidence, which is clearly contrary to law.
What the State seeks leave to appeal, therefore, is the trial court's application of the wrong legal standard to its review of a Crim.R. 29 motion for acquittal; it does not seek to appeal the final verdict.
State's SCO Response, p.2. Upon consideration, this court disagrees with the State's characterization of the issue.
{¶ 5} As noted above, the State may not appeal the "final verdict" in a criminal case. R.C. 2945.67(A). The Supreme Court of Ohio has held that discrete evidentiary and legal issues underlying a final verdict may nonetheless be appealed. For example, in 1985, in State v. Keeton, 18 Ohio St.3d 379, 481 N.E.2d 629, the Supreme Court held that the State could appeal the evidentiary rulings underlying an acquittal. In Keeton, the State sought an appeal of the trial court's determination that the chain of custody in the case had not been properly established and that the physical evidence had been altered, which led to the acquittal. The Court noted that the State "did not appeal the judgments of acquittal, but sought only to appeal the alleged erroneous ruling of law underlying the trial court's judgments of acquittal." Id. at 380. It held that "the evidentiary rulings * * * fall within the language of 'any other decision, except the final verdict * * *' in R.C. 2945.67(A)" that the State may seek leave to appeal. Id. at 381.
{¶ 6} Similarly, in State v. Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284 (1986), the Supreme Court confirmed that the State could seek to appeal the trial court's decision on the admissibility of evidence - in that case the testimony of doctors concerning the defendant's mental state when he shot the victim - despite an acquittal.
{¶ 7} In Bistricky, the Supreme Court extended this rationale to legal determinations, holding that "[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." Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644, syllabus.
{¶ 8} The discrete legal issue in Bistricky concerned defendants' argument that they were statutorily immune from prosecution, a proposition with which the trial court agreed when it granted their Crim.R. 29 motion. The Supreme Court held, based on Keeton and Arnett, that legal conclusions underlying an acquittal could be appealed by leave of court:
The question here is whether the court of appeals may consider an appeal by the state of a substantive issue or "legal conclusion" made in a criminal proceeding. We see no distinction between permitting the state to appeal evidentiary rulings and the state's ability to file an appeal from a ruling on an issue of law made by the trial court. We therefore hold that a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed.Bistricky at 159-160.
{¶ 9} Therefore, under this line of cases, the State may appeal the evidentiary rulings that underlie an acquittal and on which an acquittal is based, pursuant to Keeton and Arnett. Likewise, the State may appeal substantive legal rulings that underlie an acquittal and on which an acquittal is based, pursuant to Bistricky. However, an appeal of the actual decision to acquit, i.e., the trial court's determination that there is insufficient evidence to sustain a conviction on the charged offense under Crim.R. 29(A), is prohibited under R.C. 2945.67(A). See Chillicothe v. Lunsford, 2015-Ohio-4779, 49 N.E.3d 852, ¶ 21 (4th Dist.) (distinguishing between the court of appeals' ability to hear the State's challenge to an underlying legal issue, and the ultimate decision on the Crim.R. 29 motion, finding the latter beyond the scope of a proper State's appeal); Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, at ¶ 51 (reviewing the underlying legal issue but not "disturbing] the trial judge's acquittal order because that order - as distinct from the substantive legal rulings underlying it - is not appealable under R.C. 2945.67(A)").
{¶ 10} Here, the trial court's determination that there was insufficient evidence to sustain a conviction is outside the State's ability to appeal. Lunsford at ¶ 21, citing Hampton at ¶ 16. The question is whether there is a discrete substantive legal ruling behind that determination that the State can seek to appeal.
{¶ 11} Some examples of discrete legal issues that have been appealed include: "the trial court's ruling that the state must prove a 'nexus' between the drug ingested and the impairment in order to establish a violation of R.C. 4511.19(A)(1)(a), which prohibits the operation of a vehicle when under the influence of a drug of abuse" (Lunsford at ¶ 6); "whether certain questioning of the complaining witness violated the rape shield statute" (State v. Pooler, 2d Dist. Montgomery No. 28619, 2021-Ohio-607, ¶ 1); "the trial court's decision to instruct the jury regarding the fallibility of human memory" (State v. Rac, 2019-Ohio-893, 124 N.E.3d 878, ¶ 1 (2d Dist.)); and "the trial courts issuance of a jury instruction regarding a detective's non-compliance with R.C. 2933.83, which sets forth procedures for conducting live or photo 'lineups' of suspects" (State v. Gardner, 2d Dist. Greene No. 2020-CA-17, 2021-Ohio-868, ¶ 4).
{¶ 12} This case does not present the same type of discrete legal argument. Rather, the State's arguments here are analogous to those made in State ex rel. Ramirez-Ortiz v. Twelfth Dist Court of Appeals, 151 Ohio St.3d 46, 2017-Ohio-7816, 85 N.E.3d 725. There, the defendant moved for acquittal under Crim.R. 29(A), and the trial court granted the motion. "In announcing the ruling, the court commented that the state's witnesses lacked credibility. Reminded by the prosecutor that Crim.R. 29(A) required the court to construe the evidence in the state's favor, the court indicated that it had done so. The court then ordered the entry of a judgment of acquittal under Crim.R. 29(A) on the grounds that the evidence was insufficient to sustain a conviction as a matter of law." Id. at ¶ 4. The State appealed, and the Court of Appeals granted it leave to do so. Id. at ¶ 5. "According to the Twelfth District, the trial court went beyond considering the sufficiency of the evidence when it acquitted Ramirez-Ortiz and instead made an independent legal ruling based on its assessment of the credibility of the witnesses, as evinced by the trial court's comments that the testimony of the prosecution witnesses was 'not believable.'" Id. at ¶ 10.
{¶ 13} A prohibition complaint was then filed with the Supreme Court of Ohio, which granted a peremptory writ. The Twelfth District, the respondent in that case, asserted that the appeal fell within Bistricky's rule permitting the appeal of substantive legal rulings. The Supreme Court disagreed, holding that "the appellate court's argument misconstrues the reasoning of decisions like Bistricky":
According to the Twelfth District, the state seeks "to appeal the trial court's underlying assessment of state witnesses (and the standard of review it applied)." But the correctness of the trial court's credibility assessments does not present an independent legal issue; asking the appellate court to review
the trial court's credibility determinations is exactly the same thing as asking the appellate court to review and reverse the judgment of acquittal.
Alternatively, the Twelfth District asserts that it must review the standard that the trial court used in granting the Crim.R. 29(A) motion. But there is no dispute over what standard was applicable. In its judgment entry, the trial court correctly framed its decision granting the Crim.R. 29(A) motion as based on its determination that "the evidence is insufficient to sustain a conviction as a matter of law." What is in dispute is whether the trial court actually applied that standard or merely paid lip service to it, but that question is not a legal issue capable of repetition, because it is tied to the specific facts of this case.Id. at ¶ 12-13. The Court emphasized that "the state can appeal a discrete legal issue when the question is capable of repetition yet evading review (by virtue of the acquittal)." Id. at ¶ 11. "However, to the extent that the appeal subjected] the defendant to postacquittal factfinding, such an appeal would have no proper purpose." Id. (internal citations and quotations omitted).
{¶ 14} The State's argument here is similar:
[T]he State seeks leave to appeal what it contends was the trial court's failure to apply the correct legal standard to Baker's motion for acquittal. In particular, the State seeks to appeal the trial court's failure, when considering Baker's motion, to construe the evidence in the light most favorable to the prosecution, i.e. a sufficiency-of-the-evidence review, as the law requires. * * * As established by Appendix B to the State's February 25, 2021 motion for leave to appeal, rather than considering Baker's motion for acquittal under the proper sufficiency-of-the-evidence standard, the trial court chose to weigh the evidence in its mind and draw inferences from the evidence that it believed were reasonable. In other words, the trial court applied a standard of review akin to a consideration of the manifest weight of the evidence, which is clearly contrary to law.
State's SCO Response, p.2.
{¶ 15} The referenced Appendix B to the State's motion is an excerpt of the transcript. There, the trial court agreed with defense counsel's argument that there was insufficient evidence in the gross sexual imposition case to show that the defendant acted with the purpose of sexually arousing:
THE COURT: So I will tell you that the Court has also focused on this aspect of the case because I do think this is the aspect of the case. I don't think that there's much question about identity. I don't think there's much question about where it happened. We certainly know that the alleged victim is 13 years or younger. However, the issue does come down to purpose.
So the purpose -- determining the purpose after the fact, that doesn't tell me what the purpose was before the fact. So the Court has
to look at the testimony and the way the Court's testimony -- saw the testimony, the Court -- it almost appeared to this Court as if the defendant was embarrassed that he got aroused by this activity. That's how it came across to me from the testimony.
So to this Court, when looking at the evidence in the light most favorable to the State of Ohio as best I could using my judgment, I find that the case has not been made by the State of Ohio. I grant the Rule 29. Case is dismissed.
MS. SMEARCHECK: Your Honor, may I just point to one specific section in the interview before we dismiss this case?
THE COURT: I've already dismissed it so you can do that at whatever method you have post trial. I've considered everything I need to consider and I'm considering it in the light most favorable to the State and I am dismissing this case per Rule 29.
Transcript, p. 8-9.
{¶ 16} The question before this court is whether the State has articulated a discrete legal issue underlying the acquittal that is capable of repetition yet evading review, or whether the State's request is actually a request to review the acquittal itself. We conclude that, as in Ramirez-Ortiz, the State's request here does not present a discrete, independent legal issue that can be appealed. The State's argument that the trial court did not actually apply the proper standard but "merely paid lip service to it * * * is not a legal issue capable of repetition, because it is tied to the specific facts of this case." Ramirez-Ortiz, 151 Ohio St.3d 46, 2017-Ohio-7816, 85 N.E.3d 725, ¶ 13. We conclude that the State cannot appeal the decision to acquit or the issue framed in its response to the show cause order as a matter of law. Our show cause order is therefore NOT SATISFIED. This matter, Montgomery Appellate Case No. 29038, is DISMISSED.
{¶ 17} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge, JEFFREY M WELBAUM, Judge
Donovan, J, concurs
{¶ 18} I agree that the State cannot appeal the issue raised herein as a matter of law. For the sake of completeness and in the event of further review, I write separately to note that if the State could properly appeal this issue, I would overrule the motion for leave to appeal.