State v. Holloway , 129 Ohio App. 3d 790 ( 1998 )

I agree that the judgment must be reversed and the cause remanded for a new trial because the trial court granted the state an additional peremptory challenge. However, I write separately because I do not believe that our disposition of the third assignment of error renders the fourth assignment of error moot.

An issue is moot when a determination can have no practical effect on the existing controversy. Here, a determination that the evidence was insufficient would, in effect, be an acquittal and would bar retrial of the defendant. Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey (1978), 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15. Moreover, a reversal on the basis of insufficiency means that the state's case is so lacking that it should not have even been submitted to the jury. Burks, supra, at 16, 98 S.Ct. at 2150,57 L.Ed.2d at 12-13. Therefore, if we were to find that the evidence was insufficient to establish that appellant killed Frank Roilton, or that he was the principal offender in a robbery resulting in the death of Frank Roilton, retrial would be barred by the Double Jeopardy Clauses of the Ohio and United States Constitutions.State v. Thompkins (1997), 78 Ohio St.3d 380, 387-388,678 N.E.2d 541, 546-548.

Nevertheless, the circumstantial evidence against' appellant was strong and clearly sufficient to support the guilty verdicts beyond a reasonable doubt. Therefore, I would sustain the third assignment of error, overrule the fourth assignment of error, and overrule the remaining assignments of error as moot.