by David Kim

The Supreme Court of Ohio held that a post-verdict judgment of acquittal entered by a trial court under Crim.R. 29(B) is not “the final verdict” excepted from R.C. 2945.67(A) and that the State may therefore appeal it by leave of the court of appeals, though not as of right. The Court overruled State ex rel. Yates v. Montgomery Cty. Court of Appeals, 512 N.E.2d 343 (Ohio 1987), reasoning that juries render verdicts while judges render judgments and that no double-jeopardy bar attaches to an appeal from an acquittal entered after a jury has convicted. It affirmed in part and reversed in part.

Background

Diamond King was tried before a jury on charges of strangulation, domestic violence, and endangering children. The trial court denied King’s Crim.R. 29(A) motion for a judgment of acquittal at the close of the State’s case and reserved decision under Crim.R. 29(B) when she renewed the motion after presenting her own case. The jury convicted King on two counts of endangering children and acquitted her on the remaining charges. The next day, the trial court granted the reserved motion and set aside the verdicts.

The State appealed as of right to the Eighth District Court of Appeals, contending that a judgment of acquittal was “a functional equivalent to a dismissal” appealable as of right under R.C. 2945.67(A). In the alternative, it moved for leave to appeal, acknowledging that Yates and State v. Keeton, 481 N.E.2d 629 (Ohio 1985), required dismissal but seeking to have both overruled. The Eighth District denied leave on the authority of Yates and dismissed the appeal as of right, holding that the State “does not have an appeal of right to appeal the final verdict.”

Analysis

The Court began its analysis with the text of the rule and the statute. Crim.R. 29(B) permits a trial court to reserve decision on a motion for judgment of acquittal and rule after the jury returns a guilty verdict, at which point it may “set aside the verdict and enter judgment of acquittal.” Crim.R. 29(C). R.C. 2945.67(A), enacted five years after the Court adopted Crim.R. 29, allows the State to appeal as of right from four enumerated categories of orders and to appeal by leave “any other decision, except the final verdict, of the trial court in a criminal case.”

The Court observed that the rule treats a verdict and a judgment of acquittal as two different things. A judge acting under Crim.R. 29(C) enters no verdict but sets the jury’s verdict aside and enters a judgment. Dictionaries current when the legislature acted and Ohio’s Criminal Code use the term “verdict” the same way, and the Court stated that “it has always been juries who pronounce verdicts.”

The Court recognized that a judge sitting as fact-finder is sometimes said to render a verdict, State v. Ruppert, 375 N.E.2d 1250 (Ohio 1978), but determined that the more accurate and prevalent understanding is otherwise. State v. Lester, 958 N.E.2d 142 (Ohio 2011); Boedker v. Warren E. Richards Co., 176 N.E. 660 (Ohio 1931). It was unpersuaded by King’s reliance on the phrase “directed verdict of acquittal,” which historically described a direction to the jury.

The Court then examined the statute’s structure, which qualifies a broad grant of discretionary appeal with a narrow exception. Such an exception is read narrowly “in order to preserve the primary operation of the provision.” Comm’r of Internal Revenue v. Clark, 489 U.S. 726 (1989). Construing “final verdict” to reach what is not a verdict would allow the exception to consume the grant, the Court stated.

Absence of Double-Jeopardy Bar

The Court next addressed the constitutional limits on State appeals. The Fifth Amendment and Article I, Section 10 of the Ohio Constitution each forbid placing a person twice in jeopardy for the same offense. The state Supreme Court has generally assumed that the two protections are coextensive. Because neither party argued otherwise, the Court declined to revisit that assumption. State v. Ramirez, 151 N.E.3d 598 (Ohio 2020). The protection against reprosecution after an acquittal, once limited to jury verdicts, now applies to any judicial ruling that the prosecution’s proof is legally insufficient. Smith v. Massachusetts, 543 U.S. 462 (2005); Evans v. Michigan, 568 U.S. 313 (2013).

Thus, the doctrine forecloses a State appeal seeking reversal of an acquittal entered before the jury returns a verdict when success would require a retrial, because another trial would place the defendant in jeopardy a second time, the Court explained. In contrast, when the judgment of acquittal follows a guilty verdict, double jeopardy does not bar an appeal because reversal would result in reinstatement of the jury’s guilty verdict, not a new trial. Evans; Ramirez.

Overruling of Yates

The Court treated Keeton’s syllabus statement equating a directed verdict of acquittal with a final verdict as seemingly, or at least arguably, dicta because the State had not appealed the judgments of acquittal and the statement was unnecessary to the disposition. Yates converted that statement into an express holding while offering little analysis, never engaging the text of Crim.R. 29 or the ordinary meaning of “verdict,” and was decided four to three over two dissenting opinions. The Court rejected King’s legislative-inaction argument, explaining that such arguments merit little weight. Alexander v. Sandoval, 532 U.S. 275 (2001); Oliver v. Kaiser Community Health Found., 449 N.E.2d 438 (Ohio 1983).

The Court acknowledged that adherence to precedent promotes stability and predictability, Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256 (Ohio 2003), but stated that stare decisis was never meant to produce a “petrifying rigidity.” Clark v. Southview Hosp. & Family Health Ctr., 628 N.E.2d 46 (Ohio 1994). It stated that Yates “completely failed to engage with the operative texts.” The Court also noted that Yates had been decided “by the narrowest of margins” over strong dissents, a circumstance relevant to whether precedent should be overruled. Payne v. Tennessee, 501 U.S. 808 (1991).

Yates had also proved difficult to apply and had confused the lower courts. The Supreme Court had recently overruled a decision that, following Yates, treated a venue-based judgment of acquittal as a nonappealable final verdict. State v. Musarra, 272 N.E.3d 1196 (Ohio 2025). It had likewise held a post-verdict order granting a new trial appealable, Ramirez, though double jeopardy bars neither appeal. Because discretionary appeals lie from substantive-law rulings that result in a judgment of acquittal so long as the judgment itself is not appealed, a court of appeals could conclude that an acquittal “was erroneous and contrary to law” yet lack authority to reinstate the jury’s verdict. State v. Bistricky, 555 N.E.2d 644 (Ohio 1990); State v. McElroy, 2023-Ohio-1609 (9th Dist.).

The Court found no reliance interests weighing against overruling. Stare decisis concerns are at their apex in property and contract cases, where people order their affairs around settled rules. Payne v. Tennessee, 501 U.S. 808 (1991). In contrast, procedural rules do not “serve as a guide to lawful behavior,” the Court stated. State v. Silverman, 906 N.E.2d 427 (Ohio 2009); United States v. Gaudin, 515 U.S. 506 (1995). Overruling Yates would not disturb prior judgments setting aside verdicts for which the time to appeal has elapsed, according to the Court. Going forward, the State may seek leave to challenge a post-verdict acquittal and to have the jury’s verdict reinstated. In contrast, adherence to Yates “ensures that at least in some cases the guilty will walk free despite a valid conviction,” the Court stated.

No Appeal as of Right

The Court rejected the State’s remaining contention that a post-verdict judgment of acquittal is appealable as of right, since the Criminal Rules distinguish a pretrial motion to dismiss, Crim.R. 12(J), from a motion for judgment of acquittal, Crim.R. 29(B), and R.C. 2945.67(A) makes the grant of only the former appealable as of right. Such a judgment falls instead among the decisions appealable by leave, and the Court instructed the Eighth District to determine on remand whether leave should be granted.

Conclusion

Accordingly, the Court reversed the Eighth District’s judgment denying the State’s motion for leave to appeal and remanded for that court to consider the motion and affirmed its judgment dismissing the State’s appeal as of right. See: State v. King, 2026 Ohio LEXIS 1478 (2026).  

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