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When Sum of Trial Evidence Found Sufficient to Support Conviction, Defendant May be Retried

2007-1755.  State v. Brewer, Slip Opinion No. 2009-Ohio-593.
Cuyahoga App. No. 87701, 2007-Ohio-4291.  Judgment affirmed and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Moyer, C.J., and Lanzinger, J., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-593.pdf

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(Feb. 18, 2009) In a 5-2 decision announced today, the Supreme Court of Ohio held that, when the evidence admitted at trial is sufficient to support a defendant’s conviction, but on appeal, some of that evidence is determined to have been improperly admitted, the Double Jeopardy Clauses of the United States and Ohio Constitutions do not bar retrial of the defendant. The Court’s majority opinion was authored by Justice Terrence O’Donnell.

Samuel Brewer of Cleveland was charged with multiple offenses arising from his alleged sexual contact with two minors. He was convicted by a jury on a single count of gross sexual imposition. Brewer appealed his conviction to the Eighth District Court of Appeals, asserting that (1) the trial judge had violated his fair trial rights by allowing the state to introduce inadmissible hearsay evidence that prejudiced the jury against him; and (2) the admissible evidence presented against him at trial was not legally sufficient to support his conviction for gross sexual imposition, and he should therefore be acquitted rather than being tried a second time.

The Eighth District ruled that the trial court had erred by allowing the prosecutor to introduce prejudicial hearsay evidence and remanded the case for a new trial, dismissing Brewer’s challenge to the sufficiency of the remaining evidence as moot. Brewer appealed the dismissal of his sufficiency claim to the Supreme Court, which reversed and remanded the case to the Eighth District with instructions to hear and decide the sufficiency issue. The Eighth District subsequently reviewed all of the evidence presented at Brewer’s trial – including the hearsay testimony that it had earlier held inadmissible – and ruled that the totality of the trial evidence including the hearsay testimony was sufficient to support Brewer’s conviction, and he was therefore subject to retrial.

Brewer sought reconsideration of that ruling, arguing that a 1997 Supreme Court of Ohio decision, State v. Lovejoy, required that when a criminal defendant appeals the sufficiency of the evidence presented at trial to support his conviction, and a court of appeals finds that some of the trial evidence should have been excluded, the appellate court must exclude the inadmissible evidence from its review and base its sufficiency ruling solely on the admissible evidence presented at trial. The 8th District denied Brewer’s motion for reconsideration. Brewer sought and was granted Supreme Court review of the Eighth District’s ruling.

Writing for the majority in today’s decision, Justice O’Donnell distinguished Brewer’s case from the facts presented to the Court in Lovejoy. He noted that in Lovejoy the appellate court found that the trial court had, on its own initiative and after the parties had concluded their arguments, added information to the trial record supporting a necessary element of the defendant’s crime when that element had not been proved by the state during its case in chief.  Thus, Justice O’Donnell wrote, when the crucial evidence improperly added to the record after the state had closed its case was excluded, it was clear the state had received a full and fair chance to make its case and had failed to present evidence sufficient to support a conviction.

In contrast to the facts of Lovejoy, Justice O’Donnell wrote,  the situation presented by the current case is analogous to Lockhart v. Nelson, decided by the U.S. Supreme Court in 1988. In Lockhart, as in this case, he noted, the state proffered evidence at trial that was challenged at that time by the defendant, held admissible by the trial court, but later excluded as inadmissible upon appellate review. In order to avoid interminable trials and introduction of redundant and duplicative evidence, Justice O’Donnell wrote, the state must rely on the presumptive correctness of the trial court’s evidentiary rulings to determine when it has presented sufficient evidence to establish each element of a charged crime. 

“In Lockhart ...,”Justice O’Donnell wrote, “the court considered ‘whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction.’ ... It held that ‘where 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.’”

“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 have been improperly admitted, the Double Jeopardy Clauses of the United States and Ohio Constitutions will not bar retrial. ... For the foregoing reasons, the Double Jeopardy Clauses of the United States and Ohio Constitutions do not bar Brewer’s being retried for gross sexual imposition, because the evidence admitted at trial was sufficient to support his conviction. And although the appellate court determined that the trial court had erroneously admitted some of that evidence, the state was entitled to rely upon the trial court’s evidentiary ruling in deciding how to present its case on that charge. Accordingly, we affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.”

Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a dissenting opinion that was joined by Justice Judith Ann Lanzinger. The Chief Justice wrote that in his view the Supreme Court of Ohio’s 1997 holding in Lovejoy, decided several years after the U.S. Supreme Court’s Lockhart decision, represented a conscious choice by this Court to extend greater protection to Ohioans under the double jeopardy provision of the Ohio Constitution than the U.S. Supreme Court found under the federal constitution in Lockhart.

“The Lovejoy majority was well aware of Lockhart when Lovejoy was decided, yet it chose a different path,” wrote Chief Justice Moyer. ... “In Lovejoy,the trial court erred by sua sponte reopening the evidence after the close of the state’s case; in this case, the trial court erred by admitting inadmissible evidence. In both cases the improper evidence was a requisite for conviction. And in both cases, the heart of the error was the erroneous admission of crucial evidence. Lovejoy shouldcontrol the issue before us. For the foregoing reasons, I would reverse the decision of the court of appeals, vacate Brewer’s conviction, and hold that Ohio’s Double Jeopardy Clause bars Brewer’s retrial.” 

Cullen Sweeney, 216.443.3660, for Samuel Brewer.

Jon W. Oebker, 216.443.8146, for the state and Cuyahoga County prosecutor’s office.