[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.




                                                  14
                                 January Term, 2013




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



                                           15
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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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