[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Ramirez, Slip Opinion No. 2020-Ohio-602.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                           SLIP OPINION NO. 2020-OHIO-602
            THE STATE OF OHIO, APPELLANT, v. RAMIREZ, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Ramirez, Slip Opinion No. 2020-Ohio-602.]
Crim.R. 33(A)(4)—Neither the double-jeopardy protection nor R.C. 2945.67
        prevents the state from appealing an order granting a new trial based on
        insufficient evidence.
   (No. 2018-0900—Submitted August 6, 2019—Decided February 25, 2020.)
       APPEAL from the Court of Appeals for Lucas County, No. L-17-1076,
                                      2018-Ohio-1870.
                                    _________________
        DEWINE, J.
        {¶ 1} A rule of criminal procedure, Crim.R. 33(A)(4), provides that a trial
court may order a new trial when a verdict is not sustained by sufficient evidence.
That rule, which was adopted some time ago, is in tension with the current
understanding of the double-jeopardy protection. As it is now understood, the
double-jeopardy protection prevents the state from retrying a defendant when a
                             SUPREME COURT OF OHIO




court has found that the evidence presented in an earlier trial was insufficient to
convict.
       {¶ 2} In the proceeding below, after the jury returned a guilty verdict, the
trial court granted the defendant’s motion for a new trial based on insufficient
evidence. The court of appeals initially granted the state leave to appeal that ruling,
but then later dismissed the appeal. It premised its dismissal on principles of double
jeopardy as well as its application of a statute, R.C. 2945.67, that delineates when
the state may appeal in a criminal case. The question in front of us is whether the
court of appeals was correct in dismissing the state’s appeal. We conclude that it
was not. The double-jeopardy protection does not prevent the state from appealing
the trial court’s order granting the motion for a new trial. It only prevents the state
from retrying the defendant in the event the state is unsuccessful on appeal. Nor,
as we will explain, does R.C. 2945.67 mandate dismissal of the state’s appeal.
Thus, we reverse the judgment of the court of appeals.
                                I. BACKGROUND
                          A. An altercation and a shooting
       {¶ 3} A jury found Ramiro Ramirez guilty of voluntary manslaughter for
shooting and killing Dale Delauter. The following facts were presented at the trial.
       {¶ 4} One night, Ramirez and two friends had congregated outside a
bowling alley near Ramirez’s car. Delauter lived across the street from the bowling
alley. That night, he and his girlfriend were outside, engaged in a drunken
argument. Apparently amused by the situation, one of Ramirez’s friends walked
toward the couple and started recording the quarrel on his cell phone. The situation
quickly escalated: heated words were exchanged, and Delauter hurled a racial slur
at the friend. Delauter went into his house; his girlfriend warned that he was getting
a gun. In response, Ramirez retrieved a pistol from his car and took cover behind
the vehicle. When Delauter emerged from his house with a shotgun, Ramirez fired
several shots, killing Delauter. There was conflicting testimony about whether




                                          2
                               January Term, 2020




Delauter was pointing the gun toward Ramirez and his friends or was holding it
down at his side. An unloaded shotgun was found near his body inside the house.
              B. A jury verdict followed by an order for a new trial
       {¶ 5} Ramirez was indicted for voluntary manslaughter in violation of R.C.
2903.03. That statute provides, “No person, while under the influence of sudden
passion or in a sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly cause the death of another * * *.”
After the state rested, Ramirez twice moved for a judgment of acquittal under
Crim.R. 29, on grounds that there was insufficient evidence that he was under the
influence of sudden passion or a sudden fit of rage or that Delauter had provoked
the response. See R.C. 2903.03. Relying upon our opinion in State v. Rhodes, the
trial court denied the motions. See 63 Ohio St.3d 613, 590 N.E.2d 261 (1992).
There, we said, albeit in dicta, that when a defendant is charged with voluntary
manslaughter and not murder, “neither party is required to establish either of the
mitigating circumstances.” Instead, “the court presumes (to the benefit of the
defendant) the existence of one or both of the mitigating circumstances as a result
of the prosecutor’s decision to try the defendant on the charge of voluntary
manslaughter rather than murder.” Id. at 618.
       {¶ 6} The jury found Ramirez guilty of voluntary manslaughter. Ramirez
then moved for a new trial under Crim.R. 33(A)(4). That provision provides:


       A new trial may be granted on motion of the defendant * * * [if] the
       verdict is not sustained by sufficient evidence or is contrary to law.
       If the evidence shows the defendant is not guilty of the degree of
       crime for which he was convicted, but guilty of a lesser crime
       included therein, the court may modify the verdict or finding




                                         3
                              SUPREME COURT OF OHIO




         accordingly, without granting or ordering a new trial, and shall pass
         sentence on such verdict or finding as modified.


Again, Ramirez argued that there was insufficient evidence of sudden passion and
provocation. This time the trial court appears to have had a change of heart, and
refused to apply the passage from Rhodes. Instead, the trial court concluded that
when the state brings a stand-alone charge for voluntary manslaughter, it has the
burden of proving passion and provocation. Explicitly invoking the sufficiency-of-
the-evidence standard, the trial court determined that after viewing the evidence in
the light most favorable to the prosecution, no rational trier of fact could have found
that the passion and provocation elements had been proved beyond a reasonable
doubt.
         {¶ 7} The state was granted leave to appeal, but then the court of appeals
refused to reach the merits of its arguments. The court held that after a finding of
insufficient evidence to sustain a conviction, double-jeopardy principles prevented
“any further proceedings, such as an appeal by the state or a retrial.” In addition, it
concluded that the order granting a new trial was not appealable under R.C.
2945.67. That provision allows the state, in criminal cases, to appeal certain trial-
court decisions as a matter of right and any other decision, “except the final
verdict,” by leave of court. The court of appeals reasoned that an order granting a
new trial based on insufficient evidence was functionally an acquittal, and hence, a
final verdict that could not be appealed.
         {¶ 8} As we explain, both conclusions were in error. Neither the double-
jeopardy protection nor R.C. 2945.67 prevents the state from appealing an order
granting a new trial based on insufficient evidence.




                                            4
                                 January Term, 2020




                                   II. ANALYSIS
         A. Double-jeopardy principles prevent retrial but not an appeal
        {¶ 9} The court of appeals was incorrect when it concluded that double-
jeopardy principles prevented the state from appealing the trial court’s order
granting a new trial. It is perfectly consistent with the Double Jeopardy Clauses of
the United States and Ohio Constitutions for the state to seek to have the trial court’s
order reversed on appeal and the jury verdict reinstated. To understand why, it is
helpful to take a step back and examine the double-jeopardy protection.
        {¶ 10} The Fifth Amendment to the United States Constitution guarantees
that no person shall “be subject for the same offence to be twice put in jeopardy of
life or limb.” The Ohio Constitution contains a similarly worded guarantee: “No
person shall be twice put in jeopardy for the same offense.” Ohio Constitution,
Article I, Section 10. We have generally proceeded on the assumption that these
provisions are coextensive. State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d
435 (1996). Because neither party argues otherwise, we have no occasion to revisit
that assumption today.
        {¶ 11} In assessing whether a criminal defendant can be retried, a guiding
principle is that “[t]he Double Jeopardy Clause forbids a second trial for the purpose
of affording the prosecution another opportunity to supply evidence which it failed
to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct.
2141, 57 L.Ed.2d 1 (1978). Thus, the Burks court held that when an appellate court
reverses a trial court’s judgment because it finds the evidence insufficient to sustain
a conviction, the defendant cannot be retried. But Burks did not explicitly address
the fact pattern presented here—when a trial court grants a motion for a new trial
based on insufficient evidence. That issue was squarely addressed a few years later,
in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The
Hudson court held that an insufficiency-of-the-evidence finding bars retrial, even
if that finding occurs in the context of a new-trial motion. Id. at 41-43.




                                           5
                                SUPREME COURT OF OHIO




       {¶ 12} The United States Supreme Court has explained that “any ruling that
the prosecution’s proof is insufficient to establish criminal liability for an offense”
is functionally an acquittal for purposes of double jeopardy and prevents retrial.
Evans v. Michigan, 568 U.S. 313, 318, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013).
Indeed, the principle that a finding of insufficient evidence bars retrial applies even
when the trial court’s ruling “was predicated upon a clear misunderstanding of what
facts the State needed to prove under State law.” Id. at 320. Thus, because the trial
court made an unequivocal finding that the evidence was insufficient to convict,
Ramirez cannot be retried.
       {¶ 13} The state protests that this means that Crim.R. 33(A)(4) doesn’t have
the legal effect that it purports to have. That’s true, but our rules have to give way
to the United States Constitution. And the explanation for the conflict is simple:
Crim.R. 33(A)(4) was adopted in 1973, so it predates the 1981 decision in Hudson
explaining that a new trial cannot occur after a trial court grants a new trial based
on insufficiency of the evidence. The criminal rule has not been updated to reflect
the current state of the law.
       {¶ 14} The state further argues that Ramirez waived his double-jeopardy
protection by moving for a new trial instead of for a postverdict judgment of
acquittal. But that argument has been explicitly rejected by the United States
Supreme Court. As that court explained, “it makes no difference that a defendant
has sought a new trial as one of his remedies, or even as the sole remedy. It cannot
be meaningfully said that a person ‘waives’ his right to a judgment of acquittal by
moving for a new trial.” Burks, 437 U.S. at 17, 98 S.Ct. 2141, 57 L.Ed.2d 1.
       {¶ 15} But the court of appeals did not hold only that Ramirez could not be
retried; it went further and held that the double-jeopardy protection barred an appeal
as well. That’s not right. As the United States Supreme Court has explained, “[i]f
a court grants a motion to acquit after the jury has convicted, there is no double
jeopardy barrier to an appeal by the government from the court’s acquittal, because




                                          6
                                  January Term, 2020




reversal would result in reinstatement of the jury verdict of guilt, not a new trial.”
Evans, 568 U.S. at 330, 133 S.Ct. 1069, 185 L.Ed.2d 124, fn. 9. For similar reasons,
an appellate court can impose a conviction for a lesser included offense after a jury
convicts the defendant of a greater offense. See Rutledge v. United States, 517 U.S.
292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996).
       {¶ 16} Thus, if a trial court acquits a defendant after a jury conviction, it
does not violate double-jeopardy principles for the appellate court to reinstate the
jury verdict or to impose a conviction for a lesser included offense. Applied here,
this means that the court of appeals was mistaken in concluding that double-
jeopardy principles precluded it from reviewing the trial court’s finding of
insufficient evidence. Because that finding occurred after a jury verdict, the court
of appeals could, consistent with double-jeopardy principles, reinstate the jury
verdict for voluntary manslaughter or put in place a conviction for any lesser
included offense of that crime.
       B. R.C. 2945.67 does not prevent the state from appealing an order
         granting a motion for a new trial based on insufficient evidence
       {¶ 17} So, although double-jeopardy principles prevent a retrial, they do not
prevent an appeal. But in dismissing the state’s appeal, the court of appeals did not
rely solely on double-jeopardy principles, it also looked to R.C. 2945.67, a
provision that places independent limits on the state’s ability to pursue a criminal
appeal. That provision provides:


               A prosecuting attorney * * * may appeal as a matter of right
       any decision of a trial court in a criminal case * * * which decision
       grants a motion to dismiss all or any part of an indictment,
       complaint, or information, [or] a motion to suppress evidence, * * *
       and may appeal by leave of the court to which the appeal is taken




                                          7
                                 SUPREME COURT OF OHIO




          any other decision, except the final verdict, of the trial court in a
          criminal case * * *.


(Emphasis added.) R.C. 2945.67(A). The determinative issue here is whether an
order granting a motion for a new trial based on insufficiency of the evidence is a
final verdict. As we explain, it is not, and thus, R.C. 2945.67 does not prevent an
appeal.
          {¶ 18} We have construed R.C. 2945.67 on a few prior occasions. In State
v. Keeton, we held that a Crim.R. 29(A) judgment of acquittal entered after the
close of evidence but before submission of the matter to a jury is a final verdict
within the meaning of R.C. 2945.67(A) and may not be appealed by the state. 18
Ohio St.3d 379, 381, 481 N.E.2d 629 (1985). The Keeton rule functionally tracks
double-jeopardy principles because when a judgment of acquittal is entered before
sending a matter to a jury there is no jury verdict to reinstate, and hence, the court
of appeals is powerless to provide relief to the state.
          {¶ 19} In a subsequent case, however, we held that a Crim.R. 29(C)
judgment of acquittal entered after the jury had returned its verdict was also a final
verdict that could not be appealed by the state. State ex rel. Yates v. Montgomery
Cty. Court of Appeals, 32 Ohio St.3d 30, 512 N.E.2d 343 (1987). The effect of
Yates was to afford greater protection to criminal defendants than the Double
Jeopardy Clauses provide. Without violating the Double Jeopardy Clauses, an
order granting a Crim.R. 29(C) motion after a jury’s guilty verdict could be
appealed by the state and the jury verdict could be reinstated. But Yates held that
such an appeal was precluded by R.C. 2945.67. Indeed, the Yates court explicitly
rejected the idea that “final verdict” should be understood as limited to cases where
any relief on appeal would be blocked by double-jeopardy principles—as would be
the case with a pre-jury-verdict Crim.R. 29(A) judgment of acquittal. Id. at 32.




                                           8
                                  January Term, 2020




         {¶ 20} Ramirez asks us to extend Yates and hold that a Crim.R. 33(A)(4)
new-trial order based on insufficient evidence is a “final verdict” under R.C.
2945.67(A) and thus cannot be appealed. For the following reasons, we refuse to
do so.
         {¶ 21} Let’s start with the obvious. On any common-sense understanding
of the term, a grant of a new trial is not a “final verdict.” Plainly, such an order is
not a verdict. And it certainly cannot be a “final verdict,” because granting such a
motion contemplates further proceedings in the form of a new trial. Unsurprisingly
then, we have suggested that, under R.C. 2945.67, the state may appeal a trial
court’s order granting a motion for a new trial. See State v. Matthews, 81 Ohio
St.3d 375, 691 N.E.2d 1041, (1998), syllabus.
         {¶ 22} Ramirez’s counter to this plain-language reading of the rule is to
argue that the order granting a new trial in this particular situation actually is a final
verdict because double-jeopardy principles prohibit the state from retrying him. In
addition to being linguistically nonsensical, such a reading ignores the
understanding of the term “final verdict” at the time R.C. 2945.67 became law.
         {¶ 23} In interpreting a statute, we look to its ordinary meaning at the time
of its enactment. New Prime, Inc. v. Oliveira, __ U.S. __, __, 139 S.Ct. 532, 539,
202 L.Ed.2d 536 (2019).          R.C. 2945.67 was enacted in November 1978.
Am.Sub.H.B. No. 1168, 137 Ohio Laws, Part II, 3895, 3897. Crim.R. 33(A)(4)
was adopted in 1973. 34 Ohio St.2d xix, lxxiv. The United States Supreme Court
did not establish that the double-jeopardy protection prohibited retrial after a new-
trial order based on insufficient evidence until its decision in Hudson in 1981. 450
U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30. Hence, if we apply the meaning of the
statute at the time it was enacted, Hudson should not cast doubt on the common-




                                            9
                                 SUPREME COURT OF OHIO




sense idea that an order granting a motion for a new trial based on insufficient
evidence is not a final verdict.1
        {¶ 24} As it would have been understood at the time R.C. 2945.67 was
enacted, a Crim.R. 33(A)(4) new-trial order would have been followed by what the
plain language of the rule suggests—a new trial. Since an order granting a motion
for a new trial would have been followed by a new trial, it would not have been
final in any meaningful sense, and hence it would not be a final verdict under R.C.
2945.67. Subsequent double-jeopardy jurisprudence doesn’t change this analysis.
What the rule contemplates is further proceedings in the form of a new trial, not a
final verdict. Thus, R.C. 2945.67 does not require dismissal of the state’s appeal.
                                      III. Conclusion
        {¶ 25} Because neither the double-jeopardy protection nor R.C. 2945.67
required dismissal of the state’s appeal, we reverse the judgment of the court of
appeals and remand the matter to the court of appeals for further proceedings
consistent with this opinion.
                                                                          Judgment reversed
                                                                        and cause remanded.
        O’CONNOR, C.J., and KENNEDY and DONNELLY, JJ., concur.
        FISCHER, J., concurs in judgment only, with an opinion joined by FRENCH,
J.
        DONNELLY, J., concurs, with an opinion.
        STEWART, J., concurs in judgment only.
                                    _________________




1. Nor does the United States Supreme Court’s June 1978 decision in Burks, 437 U.S. 1, 98 S.Ct.
2141, 57 L.Ed.2d 1, which articulated some of the principles that guided the court’s decision in
Hudson, help Ramirez. R.C. 2945.67 was enacted shortly after Burks was decided, but it passed the
House of Representatives in April 1978, Am.Sub.H.B. No. 1168, 137 Ohio House Journal 2874,
and could not have been informed by that decision.




                                               10
                                 January Term, 2020




        FISCHER, J., concurring in judgment only.
        {¶ 26} I respectfully concur in the judgment of the court. I write separately,
however, to highlight a problem with the Rules of Criminal Procedure that this case
exposes and to suggest that as the legal landscape changes, perhaps the rules should
too.
        {¶ 27} This case calls on us to interpret and apply R.C. 2945.67(A), which
provides that the state may, by leave of court, appeal certain decisions from the trial
court in criminal cases. Importantly, that same provision prevents the state from
appealing the “final verdict” of the trial court.
        {¶ 28} In the past, this court has held that an acquittal based on a judicial
finding of insufficient evidence is a “final verdict.” State v. Keeton, 18 Ohio St.3d
379, 481 N.E.2d 629 (1985), paragraph two of the syllabus; State ex. rel. Yates v.
Montgomery Cty. Court of Appeals, 32 Ohio St.3d 30, 512 N.E.2d 343 (1987),
syllabus. This court has also held that a trial court’s order granting a new trial in a
criminal case is one that the state may appeal pursuant to R.C. 2945.67(A). State
v. Matthews, 81 Ohio St.3d 375, 691 N.E.2d 1041 (1998), syllabus. The United
States Supreme Court, however, has instructed that it is the substance rather than
the form that controls what constitutes an acquittal. United States v. Martin Linen
Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). This means,
as the majority opinion in the present case correctly points out, that “ ‘any ruling
that the prosecution’s proof is insufficient to establish criminal liability’ ” may be
deemed the functional equivalent of an acquittal. (Emphasis added.) Majority
opinion at ¶ 12, quoting Evans v. Michigan, 568 U.S. 313, 318, 133 S.Ct. 1069, 185
L.Ed.2d 124 (2013).
        {¶ 29} Against this backdrop, there is a tension in our law. This tension is
not the result of any error or ambiguity in the text of R.C. 2945.67(A) but is due to
an anomaly in our own Rules of Criminal Procedure that gives defendants two
different procedural avenues for seeking relief when they believe that there is




                                           11
                             SUPREME COURT OF OHIO




insufficient evidence in their case. Pursuant to Crim.R. 29, a defendant may move
for an acquittal when he or she believes there is insufficient evidence to sustain a
conviction. Under Yates and Keeton, an order granting such a motion would count
as a final verdict under R.C. 2945.67(A) and could not be appealed by the state.
That same defendant could alternatively move for a new trial on that same basis
(insufficient evidence) via Crim.R. 33(A)(4).      Under Matthews and now our
decision in this case, a trial court’s order granting that motion would not amount to
a final verdict. This does not make sense.
        {¶ 30} When reviewing statutes, this court often reminds litigants that the
General Assembly is always free to change the law to address new developments
or policy concerns. See Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio
St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 34-35. We should heed our own
advice and, consistent with our authority under the Ohio Constitution, Article IV,
Section 5(B), change the rules to do away with this vestigial remainder in Crim.R.
33(A)(4).
        {¶ 31} For these reasons, I respectfully concur in judgment only.
        FRENCH, J., concurs in the foregoing opinion.
                               _________________
        DONNELLY, J., concurring.
        {¶ 32} I join the majority’s decision reversing the judgment of the court of
appeals and holding that neither the double-jeopardy protection nor R.C. 2945.67
prevents the state from appealing the order granting a new trial under Crim.R.
33(A)(4). I also agree that if the state loses its appeal, the double-jeopardy
protection prevents a new trial.
        {¶ 33} I write separately to point out that the majority expresses no opinion
on the correctness of the quoted dicta from State v. Rhodes, 63 Ohio St.3d 613, 590
N.E.2d 261 (1992). That may be an issue on remand, but it is not an issue before
us at this time.




                                         12
                                 January Term, 2020




                                 _________________
       Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J.
Majdalani, Assistant Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant
Public Defender, for appellee.
                                 _________________




                                         13
