[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ramirez-Ortiz v. Twelfth Dist. Court of Appeals, Slip Opinion No. 2017-Ohio-7816.]




                                           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. 2017-OHIO-7816
     THE STATE EX REL. RAMIREZ-ORTIZ v. TWELFTH DISTRICT COURT OF
                                          APPEALS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Ramirez-Ortiz v. Twelfth Dist. Court of Appeals,
                          Slip Opinion No. 2017-Ohio-7816.]
Prohibition—Respondent appellate court patently and unambiguously lacks
        jurisdiction to review trial court’s credibility determinations—Writ
        granted.
    (No. 2016-1730—Submitted June 6, 2017—Decided September 27, 2017.)
                                      IN PROHIBITION.
                                    ________________
        Per Curiam.
        {¶ 1} In this original action, relator, Efranin Ramirez-Ortiz, seeks a writ of
prohibition to bar respondent Twelfth District Court of Appeals from hearing the
state’s appeal of his Crim.R. 29(A) acquittal. The appellate court has filed a motion
to dismiss, and Ramirez-Ortiz has asked for leave to amend his complaint. We
                             SUPREME COURT OF OHIO




hereby grant the motion for leave to amend, deny the motion to dismiss, and grant
a peremptory writ of prohibition.
                                    Background
        {¶ 2} In his complaint, Ramirez-Ortiz makes the following factual
allegations, which do not appear to be in dispute.
        {¶ 3} Ramirez-Ortiz was indicted in Butler County on two counts of
aggravated burglary and two counts of felonious assault. The case was tried to a
jury.
        {¶ 4} After the state presented its evidence, Ramirez-Ortiz moved for a
judgment of acquittal under Crim.R. 29(A). The trial court granted the motion as
to all counts. 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.
        {¶ 5} The state filed a notice of appeal in the Twelfth District Court of
Appeals, along with a motion for leave to appeal. Ramirez-Ortiz opposed the
motion for leave and filed a motion to dismiss the appeal for lack of jurisdiction.
The appellate court granted the motion for leave to appeal without explicitly
mentioning the motion to dismiss.
        {¶ 6} Ramirez-Ortiz then commenced this action for a writ of prohibition to
prevent the court of appeals from hearing the state’s appeal. The appellate court
filed a motion to dismiss, which Ramirez-Ortiz has opposed.
                                      Analysis
        {¶ 7} For the requested writ of prohibition to issue, Ramirez-Ortiz must
show that the Twelfth District is about to exercise judicial power, that it lacks
authority to exercise that power, and that denying the writ would result in injury for




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                                     January Term, 2017




which no adequate remedy exists in the ordinary course of the law. State ex rel.
Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13.
However, if the Twelfth District patently and unambiguously lacks jurisdiction,
then Ramirez-Ortiz need not establish the third prong, the lack of an adequate
remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d
368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
                          First argument in the motion to dismiss
         {¶ 8} The Twelfth District argues that it is not sui juris1 and therefore cannot
be sued. But Ramirez-Ortiz has filed an unopposed motion for leave to amend his
complaint to name all five judges of the Twelfth District, as well as the magistrate,
as respondents. We grant the motion, thereby mooting the first argument asserted
in the Twelfth District’s motion to dismiss.
                        Second argument in the motion to dismiss
         {¶ 9} The state is not permitted to appeal a final verdict in a criminal case,
R.C. 2945.67(A), including a judgment of acquittal under Crim.R. 29. State v.
Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 12. However,
the state is permitted to seek leave to appeal “ ‘any other decision,’ ” such as
evidentiary rulings. State v. Keeton, 18 Ohio St.3d 379, 381, 481 N.E.2d 629
(1985), quoting R.C. 2945.67(A). In State v. Bistricky, for example, the trial court
made preliminary rulings regarding the scope of an immunity statute and the burden
of proof relating thereto and then granted the defendants’ motion for a judgment of
acquittal based on the statutory immunity. 51 Ohio St.3d 157, 555 N.E.2d 644
(1990). This court held that the state could pursue a discretionary appeal of
“substantive law rulings * * * which result in a judgment of acquittal so long as the
judgment itself is not appealed.” Id. at syllabus.



1
 “Sui juris” means “[o]f his own right; possessing full social and civil rights; not under any legal
disability, or the power of another, or guardianship.” Black’s Law Dictionary 1434 (6th Ed.1990).




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                              SUPREME COURT OF OHIO




        {¶ 10} In its second argument for dismissal, the court of appeals contends
that it does not patently and unambiguously lack jurisdiction because, as in Keeton
and Bistricky, the state is not appealing the trial court’s judgment per se but, rather,
“the trial court’s substantive legal ruling that led to the judgment of acquittal.”
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.”
        {¶ 11} The appellate court’s argument misconstrues the reasoning of
decisions like Bistricky. As we explained in State v. Ross, the state can appeal a
discrete legal issue when the question is capable of repetition yet evading review
(by virtue of the acquittal). 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992,
¶ 33. However, to the extent that the appeal “ ‘subject[ed] the defendant to
postacquittal factfinding,’ ” such an appeal would have “ ‘no proper purpose.’ ” Id.
at ¶ 32, quoting Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 90
L.Ed.2d 116 (1986). So in Ross, the state was permitted to appeal the trial court’s
legal ruling that it had jurisdiction to grant an untimely Crim.R. 29(C) motion for a
judgment of acquittal by treating it as a motion for reconsideration, but the court of
appeals could not disturb the acquittal itself. Id. at ¶ 32-34, 51.
       {¶ 12} 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.
       {¶ 13} 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




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                                  January Term, 2017




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.
        {¶ 14} Because the Twelfth District has failed to show that it has
jurisdiction to hear the state’s appeal, we deny the motion to dismiss.
                               The question of remedy
        {¶ 15} In an original action before this court, once the respondent’s time to
answer or move for dismissal has elapsed, our rules provide for four possible
judgments: the court may (1) dismiss the complaint, (2) issue an alternative writ,
thereby requiring the parties to submit evidence and additional briefing, (3) issue a
peremptory writ of mandamus or prohibition, or (4) deny the writ outright.
S.Ct.Prac.R. 12.04(C). Summary disposition is generally not proper in a mandamus
action, when the underlying facts establishing the legal duty and/or the right to
relief are in dispute or have not been admitted. State ex rel. Temke v. Outcalt, 49
Ohio St.2d 189, 191, 360 N.E.2d 701 (1977).
        {¶ 16} However, this prohibition case presents a pure question of law. Our
decision does not depend on the resolution of factual disputes, and therefore
additional briefing by the parties is unnecessary.
        {¶ 17} For this reason, pursuant to S.Ct.Prac.R. 12.04(C), we hereby grant
a peremptory writ of prohibition barring the Twelfth District Court of Appeals from
hearing the state’s appeal in State v. Ramirez-Ortiz, No. CA2016-09-0179.
                                                              Motion to dismiss denied,
                                                               motion for leave granted,
                                                                       and writ granted.




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                            SUPREME COURT OF OHIO




       O’CONNOR, C.J., and KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE,
JJ., concur.
       O’DONNELL, J., dissents.
                              _________________
       Repper, Pagan, Cook, Ltd., and Christopher J. Pagan, for relator.
       Michael DeWine, Attorney General, and Sarah E. Pierce and Zachery P.
Keller, Assistant Attorneys General, for respondents.
                              _________________




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