The Ohio Supreme Court has reversed a conviction for selling beer to an underage person. The court held that a trial court cannot take judicial notice of a fact that is an essential element of an offense.
The case is State v. Kareski, Slip Opinion No. 2013-Ohio-4008.]
In this case, a confidential informant and two undercover agents entered a bar where the defendant was bartending. The informant, who was 19, approached the bar and asked the defendant for a Bud Light. The defendant testified that he noticed that the informant did not have the stamp showing that he had provided proof of his age at the door. He told the informant that he could not give him the beer until he showed proper age identification. The informant pretended to take a cell phone call, passed money to the defendant, and walked away from the bar without the beer.
The defendant was charged with the sale of beer to an underage person. An agent retrieved the opened Bud Light as evidence and sent a sample of the contents of the bottle to a state lab to be analyzed. At the trial, however, the state had difficulty proving that the beer was, in fact, in the can. The court explained: “The particular bottle’s label itself did not disclose an alcohol content; a portion of the label was covered or obscured by the state’s evidence label, but it is unclear whether the bottle stated an alcohol content at all.”
The judge, after objection from the defendant took judicial notice that “Bud Light is in fact beer.”
This was an error. An appeals court held that it is improper for a court to take judicial notice of an element of the crime charged. Moreover, the alcohol content by volume of Bud Light was not something that was “generally known” and, therefore, could be the subject of judicial notice.
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, protect criminal defendants against multiple prosecutions for the same offense. If the government has failed to prove every element of its case at a first trial, generally the defendant may not be retried for the same offense.
In this case, had the trial judge not taken judicial notice that Bud Light was beer, the evidence offered by the state was insufficient to prove the case against the defendant.
The prosecution in this case attempted to submit a report on the testing of the contents of the bottle, but since the report lacked foundational testimony, the trial court did not allow it to be admitted as evidence. The bottle itself was in the courtroom, but the witness who examined the bottle on the stand was unable to discern any information on the particular label regarding its alcohol content. The state then requested that the trial court take judicial notice that the bottle contained beer as statutorily defined, and the court complied. The state then rested its case. . . . the trial court filled a gap left by the state in proving its case by taking judicial notice of an essential element and thereby committing error.
In ordering the case dismissed, the Ohio Supreme Court concluded, “we cannot countenance allowing the state to come to trial unprepared to prove its case only to be rescued by a trial court taking judicial notice of an element the state has failed to prove, and committing error in doing so.”