A prosecutor may seek court permission to appeal a trial judge’s post-verdict judgment of acquittal of a criminal defendant, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court overturned a 1987 decision that found a judge’s acquittal after a jury found a defendant guilty is a “final verdict” that cannot be appealed. In reviewing a Cuyahoga County woman’s acquittal, the Court majority today found the term “final verdict” does not include a trial court order setting aside a jury’s guilty verdict.

Writing for the Court majority, Justice R. Patrick DeWine explained that R.C. 2945.67(A) governs when the state can appeal a trial court’s decision in criminal cases. That provision allows the state to appeal certain matters as of right while allowing any other decision of the trial court — except the “final verdict” — to be appealed by leave of court. A judge’s order setting aside a jury verdict is not a “final verdict” and thus may be appealed with leave, or permission, of the appeals court, he wrote.

“There can be little doubt that in ordinary usage, the word ‘verdict’ is most often associated with a jury’s resolution of the case based on its factual determinations,” Justice DeWine wrote.

The opinion also explained that allowing the prosecution to appeal an acquittal granted after a jury has convicted a defendant does not violate a defendant’s protection against double jeopardy. This is because a successful appeal by the prosecution will reinstate the jury’s verdict, not subject the defendant to a new trial, the court explained.

Justices Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion.

In an opinion concurring in part and dissenting in part, Chief Justice Sharon L. Kennedy wrote that she agreed with the majority that prosecutors do not have the right to automatically appeal a trial court’s judgment of acquittal. She added that the prosecution has no right to seek permission to appeal.

She emphasized that R.C. 2945.67(A) governs “trial court decisions,” and both juries and judges render verdicts. The determinations of juries and judges are treated by the law as functional equivalents, and a trial judge brings a case to a close with a final verdict.

“Based on the plain language or R.C. 2945.67(A), the term ‘final verdict’ refers to a decision of the trial court, not a jury verdict,” the chief justice wrote.

Justices Patrick F. Fischer and Jennifer Brunner joined Chief Justice Kennedy’s opinion.

Prosecution Seeks to Reinstate Guilty Verdict
In 2024, Diamond King was tried by a Cuyahoga County Common Pleas Court jury on charges of strangulation, domestic violence, and endangering children. After the prosecution presented its case, King’s defense attorney filed a motion for judgment of acquittal under Rule 29(A) of the Ohio Rules of Criminal Procedure. The rule allows a trial court to acquit the defendant “if the evidence is insufficient to sustain a conviction of such offense or offenses.”

The trial judge denied the motion, and King presented her defense. After both sides presented their cases, King again cited Rule 29(A) and asked the court to acquit her of the charges. The trial judge reserved the right to rule on King’s motion after the jury returned a verdict.

The jury found King guilty of two counts of endangering children and acquitted her on all the other charges. The next day, the trial judge granted her motion for a judgment of acquittal and set aside the jury’s verdict.

The prosecutor’s office appealed the decision to the Eighth District. It argued that it was entitled to an appeal of right, noting that under R.C. 2945.67(A), the law allows the prosecutor to automatically appeal any dismissal of all or any part of an indictment. The prosecutor argued the judge’s acquittal was the equivalent of dismissing the charges for which King was indicted.

In the alternative, the prosecutor requested leave to appeal. The prosecutor acknowledged that under the Supreme Court’s 1987 State ex rel. Yates v. Montgomery Cty. Court of Appeals decision and a previous Supreme Court decision, the Eighth District was obligated to reject the appeal because a judge’s order setting aside a jury verdict and entering a judgment of acquittal constituted a nonappealable “final verdict.” But the prosecutor explained the request for leave was filed with the aim of asking the Supreme Court to overturn its prior decisions.

The Eighth District then denied the appeal, citing Yates.

Supreme Court Analyzed Appeals of Orders Setting Aside Jury Verdicts and Entering Judgments of Acquittals
The Court examined the prosecutor’s right to appeal the trial court’s order setting aside the jury verdict based on the statute and the protections against double jeopardy guaranteed by the Ohio and U.S. Constitutions.

R.C. 2945.67(A) grants the state the right to appeal certain decisions by right and others by leave of court. It can directly appeal, for example, any decision by a trial court to dismiss all or part of an indictment, complaint, or information in a criminal case. The law allows prosecutors to ask an appeals court for leave to “appeal any other decision, except the final verdict, of a trial court in a criminal case.”

The Court first found that the state does not have an automatic right to appeal because a judgment of acquittal is not the equivalent of a dismissal. It then focused on whether the judgment of acquittal met the law’s definition of a “final verdict.”

The prosecutor argued the word “verdict” has long been understood to be a jury’s finding of guilt or innocence. King argued the term has a broader meaning, noting that the term “directed verdict” is sometimes used to refer to a trial court’s judgment of acquittal.

The opinion highlighted  that the plain language of Criminal Rule 29, adopted in 1973, distinguishes between “verdict” and “judgment of acquittal,” noting that a judge may grant a motion for acquittal “either before a jury returns a verdict, or after it returns a verdict of guilty, or after it is discharged without having returned a verdict.” If a guilty verdict is returned, the rule allows the court to “set aside the verdict” and enter a judgment of acquittal.

“This phraseology confirms that verdicts and judgments of acquittal are two different things,” the opinion stated.

As for the statute, the Court noted that state lawmakers adopted R.C. 2945.67(A) in 1978. The Court referenced dictionary definitions from that time and present-day dictionaries, which commonly associate “verdict” with a jury’s factual finding. The Court also cited laws dating back to the 1200s that have associated a “verdict” with the decision of a jury.

The Court stated that the Revised Code makes numerous references to “verdicts” being decisions by juries but found it “impossible to find any reference” to “verdict” in the statutes that uses the word to include a trial court’s override of a jury’s verdict.

The Court also pointed out that King’s argument about judges granting “directed verdicts” does not mean judges render verdicts. The term stems from common law rules that allowed a judge to direct the jury to return a not-guilty verdict when there was insufficient evidence to prove a case. Over time, courts have dropped the practice, and the term has instead become a shorthand to describe a Crim.R. 29 judgment of acquittal.

The Court concluded that Yates was wrongly decided because it had failed to recognize the common understanding of “verdict” as a decision made by a jury. The opinion noted that Yates was a 4-3 decision, with the Court sharply divided on whether prosecutors could appeal decisions to acquit a defendant after a jury’s finding of guilt.

Because the prosecutor can request permission to appeal a post-verdict judgment of acquittal, the Court reversed the Eighth District’s decision and remanded the case to the appeals court to consider the request to appeal the order setting aside the jury verdict and entering a judgment of  acquittal.

Prosecution Cannot Appeal Final Verdicts, Chief Justice Maintained
In her opinion concurring in part and dissenting in part, Chief Justice Kennedy noted that R.C. 2945.67(A)allows appeals from “any other decision, except the final verdict.” “[T]he final verdict” is an exception to “any other decision.” The question, she asked, is “Whose decision?” The law explains it is a decision “of the trial court.” So, “the final verdict” in the statute refers to a trial court’s decision, not a jury’s, her opinion stated.

“This is the only grammatical reading of the statute that makes sense, and all the dictionaries in the world cannot change that fact,” she wrote.

Both judges and juries can acquit defendants, and both render verdicts, the chief justice stated. Her opinion noted that a three-judge panel issues a verdict when it decides a death penalty case. Judges can also return verdicts in cases where defendants have waived their right to a jury trial and opted to be tried by a judge.

Reading the law to define a “final verdict” as being only a jury’s decision is not viable because a jury verdict alone is not a final order that can be appealed, the chief justice wrote, and double jeopardy also prohibits an appeal of a jury’s verdict to acquit a defendant. A jury’s verdict becomes final when a trial court issues a judgment, which incorporates the facts of the conviction and the sentence, the chief justice stated.

The question whether a trial court’s judgment of acquittal is a final verdict has been settled for more than 40 years, she noted, and the legislature has not chosen during that time to amend the law. She would affirm the Eighth District’s decision to dismiss the prosecution’s appeal.

2024-1608. State v. King, Slip Opinion No. 2026-Ohio-2656.

View oral argument video of this case.

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