Decided August 7, 1985.
Criminal law — Right of state to appeal any decision other than final verdict — R.C. 2945.67(A) — Directed verdict of acquittal is "final verdict."
O.Jur 3d Criminal Law § 1433.
1. In addition to those rulings in which the state is granted an appeal as of right pursuant to R.C. 2945.67(A) the state may, by leave of the appellate court, appeal any decision of a trial court in a criminal case which is adverse to the state except a final verdict.
2. 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.
APPEAL from the Court of Appeals for Auglaize County.
Defendants-appellees, Timothy S. Keeton, Edward L. Hawkins and Ernest L. Masters, were each indicted on one count of robbery in violation of R.C. 2911.02. The indictments arose from an alleged gambling scheme into which the defendants attempted to lure a truck driver. When the driver refused to participate, the defendants allegedly shoved him around and stole his money. They fled in an automobile driven by Masters. The victim reported that the defendants had stolen a roll of money containing four twenty-dollar bills and a fifty-dollar bill.
Patrolman Regula of the Wapakoneta Police Department responded to the call. The patrolman pursued the vehicle containing the three defendants. When he stopped the automobile he asked the defendants to get out, and upon searching them found a roll of four twenty-dollar bills in Keeton's pocket. The patrolman placed the roll of twenty-dollar bills into his own pocket and transported the defendants to the Wapakoneta Police Department for questioning. At the police department Regula removed additional sums of money from the defendants' pockets and placed them into separate bags.
As a result of the conflict in the testimony of Patrolman Regula at the preliminary hearing and at the trial concerning his custody of the money seized from the defendants, the trial court excluded from evidence State's Exhibits 1, 2 and 3, the bags containing the money seized from the defendants. At the close of the evidence the trial judge, on his own motion, directed a judgment of acquittal in each case pursuant to Crim. R. 29. The trial judge in his journal entries directing judgments of acquittal recited as a basis for the acquittals his determination "that the chain of evidence was not properly established and preserved, that evidence had been altered (namely four  rolled-up twenty dollar bills were not properly preserved in the same condition as found in the rolled-up position, which would have been probative under the circumstances and essential to support a conviction)."
The state in its motions for leave to appeal contended that the evidentiary rulings were erroneous because the problems in the chain of custody and handling of the physical evidence, as well as the testimony of witnesses, were related to the weight, and not the admissibility, of such evidence. The state, however, 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 pursuant to R.C. 2945.67(A). The Court of Appeals for Auglaize County denied the motions, finding it lacked jurisdiction to hear such appeals pursuant to State v. Lewis (1982), 4 Ohio App.3d 275.
The cause as consolidated is now before this court pursuant to the allowance of a motion for leave to appeal.
Frederick D. Pepple, prosecuting attorney, for appellant.
William E. Huber, for appellees.
R.C. 2945.67(A) states:
"A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter or [of] right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency 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 pursuant to sections 2953.21 to 2953.24 of the Revised Code, and 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 court of appeals denied leave to appeal, finding it lacked jurisdiction, citing State v. Lewis (1982), 4 Ohio App.3d 275. This court is aware that the double-jeopardy protections of the United States Constitution and the Ohio Constitution bar the retrial of the defendants. However, in addition to those rulings in which the state is granted an appeal as of right pursuant to R.C. 2945.67(A) the state may, by leave of the appellate court, appeal any decision of a trial court in a criminal case which is adverse to the state, except a final verdict.
See State v. Calhoun (1985), 18 Ohio St.3d 373, for a discussion of the double-jeopardy bar to retrial.
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.
However, the evidentiary rulings in this case, while they do not fall within the provisions of R.C. 2945.67(A) granting an appeal as of right, do fall within the language of "any other decision, except the final verdict * * *" in R.C. 2945.67(A) which permits an appeal to the court of appeals after leave has first been obtained.
The state in seeking "appeal by leave of the court to which the appeal is taken" under R.C. 2945.67(A) must follow the procedure outlined in State v. Wallace (1975), 43 Ohio St.2d 1 [72 O.O.2d 1]. This includes compliance with App. R. 5(A). Under these procedural guidelines the court of appeals in this cause must decide, upon remand, whether in its sound discretion the state should be granted leave to appeal the above-mentioned decision of the trial court.
Therefore, the judgments of the court of appeals are reversed and the cause is remanded to that court for further proceedings consistent with this opinion.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.