While I agree with the majority's conclusion that the court erred by granting a dismissal of the charge, I respectfully dissent from the majority's conclusion that retrial is precluded by the principle of double jeopardy.
As noted by the majority, the analysis of this issue was addressed in State v. Calhoun (1985), 18 Ohio St. 3d 373. However, in relying upon Calhoun, supra, the majority concluded that the trial judge had made a factual finding that the state's evidence was insufficient to establish a basis for the offense. I disagree. It appears, upon a closer analysis of the trial court's undertaking here, that on the contrary, the trial judge made an erroneous conclusion of law which would not preclude a retrial on the merits. This was adopted in United States v. Scott (1978), 437 U.S. 82 and endorsed in Calhoun. Calhoun, supra, at 375.
Specifically, appellee was charged with child stealing in violation of R.C. 2905.04. It provides in pertinent part, "(A) No person, by any means and with purpose to withhold a minor from the legal custody of his parent, guardian, or custodian, shall remove the minor from the place where he is found."
During opening statement, the prosecutor proffered that the state would present evidence that the divorce decree awarded custody to the mother of the two minor boys, and that the decree was silent as to visitation rights of the father. The state was prepared to show that the father went to the babysitter's house and departed with both boys without permission of the mother.
Appellee moved for a dismissal because "there is no court order that [appellee] has violated."
The court noted:
"[T]he charge that will be before the jury, the charge speaks about the defendant withholding the child fiom the legal custody of the parent. And, as I read the Oh. Jur. instruction in 505.04(a)4, the definition of legal custody which says, quote, '[l]egal custody means control over the child under authority of law,' end quote. The Court is concerned about the application of that instruction and that portion of the charge to the facts of this case, and you've made reference now in your opening statement and now in your arguments to the Court concerning an order of custody of May of 1988 which of course preceded the date of this event and you've also alluded that to the Court that there is a written document known as a separation agreement which the parties have, which apparently from the opening statement^ was the basis for this, this charge, and it's the feeling of the Court that a privately executed separation agreement which was not adopted as any part of the court order would not be the proper basis for a charge under this section of the law."
The prosecutor offered the divorce decree which awarded exclusive custody to the mother, and the extrajudicial visitation agreement into evidence. Both were admitted without objection by appellee.
The court then concluded:
"[Biased on what I have heard so far in the opening statement and now what's been presented to the Court, it's my belief that, and my finding, that we would not expect the evidence to change during the course of the trial or to improve as to what we see now. And it seems clear to the Court that, given that fact situation, that the State would not carry its burden and prove the defendant guilty by proof beyond a reasonable doubt of this particular charge, and therefore I'm going to grant the motion of the defendant to dismiss the charge, and I'll do that at the State's cost, unfortunately."
From this dialogue, it appears to this jurist that the trial court has made an incorrect appli*505cation of law regarding the determination of legal custody based upon the opening statement and has not made any factual conclusion which would act as a bar to retrial based upon the principles of double jeopardy. The trial judge correctly discounted the visitation agreement as not having any "legal" effect in determining "legal custody." However, based upon his colloquy in the record, it appears to this writer that he also excluded the divorce decree and custody award in making his determination that appellee had not withheld the minor from the legal custody of his parent, in this cause, the mother. This document awarded sole custody of the boys to the mother, and the appellee could not legally remove either boy from the place where he was found without being subjected to criminal prose cution for child stealing.
For these reasons, I respectfully dissent finding that retrial is not precluded by the principles of double jeopardy as announced in Calhoun, supra.