Finding the granting of leave to appeal inappropriate, I must respectfully dissent.
First, if the appeal be from the granting of a motion to suppress, R.C. 2945.67(A) confers an appeal as of right, making a motion for leave to appeal both unnecessary and inappropriate. If that be the case, the appeal should be dismissed for failure of appellant to comply with the mandatory procedural requirements of Crim. R. 12(J).
However, this does not appear to be an appeal from a motion to suppress but, instead, one from a ruling upon admissibility of evidence, the notice of appeal referring to a holding that "a chemical test * * * is inadmissible without expert testimony." Crim. R. 12(J) would not be applicable, but the "order" would not be appealable until *Page 447 final judgment was entered. The very basis the majority gives for ignoring Crim. R. 12(J) mandates dismissal of this appeal, the majority noting "the trial court entered judgment for defendant." R.C. 2945.67(A) expressly provides there can be no appeal from "the final verdict" in a criminal case. Here, the trial court upon the evidence adduced found defendant not guilty. There can be no appeal by the prosecution from a factual determination of not guilty in a criminal case, no matter the extent or nature of claimed error since the defendant has been in jeopardy, and no further proceedings in the trial court are possible upon the charges. See the fourth paragraph of the syllabus of Euclid v.Heaton (1968), 15 Ohio St. 2d 65 [44 O.O.2d 50]. Any decision herein would be advisory only since, having been acquitted, defendant cannot be retried upon the charges even if there be error in the exclusion of evidence at the "trial" as contended by the prosecutor.
Accordingly, I would overrule the motion for leave to appeal and dismiss any appeal as of right.