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When Trial Court’s Improper Judicial Notice Is Only Evidence That Proves State’s Case, Double Jeopardy Bars a Retrial

Close-up image of beer

Trial court judge’s determination that “Bud Light is in fact beer” should not have been considered by appeals court when deciding whether a retrial was allowed, the Ohio Supreme Court ruled today in State v. Kareski.

Close-up image of beer

Trial court judge’s determination that “Bud Light is in fact beer” should not have been considered by appeals court when deciding whether a retrial was allowed, the Ohio Supreme Court ruled today in State v. Kareski.

The Supreme Court of Ohio ruled today that, when determining whether a retrial was prohibited by double jeopardy protections, an appellate court should not have considered a fact erroneously admitted through judicial notice during trial.

The opinion, authored by Justice Paul E. Pfeifer, overturns a ruling by the Ninth District Court of Appeals and vacates the conviction of an Akron bartender who was tried for selling beer to an underage informant.

In August 2010, the informant, 19-year-old Mychael Kimbel, ordered a Bud Light from the bartender, Matthew Kareski, who told Kimbel the price, opened the beer, and placed it in front of him. Another undercover agent from the Ohio Department of Public Safety cited Kareski and retrieved the open bottle as evidence, sending it to a state lab to be analyzed.

During trial, Kareski’s attorneys objected when the state tried to have the undercover agent, rather than the state lab’s technician, testify about the report analyzing the contents of the bottle. They argued the report was hearsay and not properly authenticated. The trial judge excluded the lab report from evidence because the technician wasn’t available to testify. However, the court took judicial notice that “Bud Light is in fact beer,” and advised the jury to accept that the Bud Light sold by Kareski fell within the legal definition of an alcoholic beverage.

Kareski was found guilty and appealed to the Ninth District, arguing that the trial court’s judicial notice about the beer’s alcohol content was an error. The court of appeals agreed, reversed the conviction, and ordered a new trial. It determined that the trial court shouldn’t have taken judicial notice of an element of the crime Kareski was charged with or of the beer’s alcohol content, which was not something generally known. Citing the Ohio Supreme Court’s ruling in State v. Brewer (2009), the appeals court stated it could consider evidence that was wrongly admitted to determine whether there was sufficient evidence to allow a retrial. Holding that the evidence was sufficient with the trial court’s judicially noticed fact that Bud Light is beer, the appellate court found that Kareski could be retried without violating double jeopardy. Kareski appealed to the Supreme Court.

To determine whether a retrial violates the U.S. and Ohio Constitutions’ prohibitions against double jeopardy (being tried twice for the same crime), the Ohio Supreme Court in its ruling today explained different types of reversals, as defined in the U.S. Supreme Court case Lockhart v. Nelson (1988). When a reversal is made based on a trial error, it “‘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.’” With trial errors, a retrial is allowed. However, a reversal based on insufficient evidence means “‘that the government has failed to prove its case.’” When there is insufficient evidence, a retrial would violate double jeopardy, the court stated.

This case, Justice Pfeifer wrote, turns on which Ohio Supreme Court decision – State v. Lovejoy (1997) or State v. Brewer (2009) – controls. In Lovejoy, a trial court reopened a case after closing arguments to enter, as part of a judicial notice, the fact that the defendant had a prior conviction, which was a critical element the state hadn’t proved. The Ohio Supreme Court held that the earlier conviction, which was wrongly admitted, shouldn’t have been considered when evaluating the sufficiency of the evidence; rather, the appeals court needed to review the other remaining evidence to determine whether that evidence was enough to support a conviction. In Brewer, the Supreme Court found that a reviewing court could rely on evidence admitted erroneously to decide whether the evidence at trial was sufficient for a conviction and would then allow a retrial.

Justice Pfeifer wrote in today’s decision: “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. The trial court’s action exposed the state’s failure to prove its case.”

“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,” he wrote.

“[H]ere, the sole evidence offered by the state on the issue of the alcohol content of the beer in question was never admitted.” Justice Pfeifer continued. “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 ….”

“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,” he wrote. “[W]e 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.”

“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,” Justice Pfeifer concluded.

The court’s majority opinion was joined by Justices Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill. Justice Judith Ann Lanzinger concurred in the judgment only in an opinion joined by Chief Justice Maureen O’Connor.

In the concurrence, Justice Lanzinger wrote that she would overrule rather than distinguish Brewer. She quoted former Chief Justice Thomas J. Moyer’s dissent in Brewer:

We held [in State v. Lovejoy] 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.”

She agreed and stated that “[t]he 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.” She would clarify the rule by holding that Brewer is no longer good law.

Justice Judith L. French dissented. She wrote in her opinion: “I am compelled, under the logic of Burks [v. U.S. (1978)], 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. With that judicially noticed fact, there was sufficient evidence to support Kareski’s conviction: the remaining 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. … The majority acknowledges that the judicially noticed fact ‘saved the state’s case,’ 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.”

She continued: “The majority relies on the ‘remaining evidence’ standard, which this court created, without supporting authority, in State v. Lovejoy. 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. … 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. … 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.”

2012-1242. State of Ohio v. Matthew Kareski, Slip Opinion No. 2013-Ohio-4008.

Video clip View oral argument video of this case.

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