dissenting. Because I believe that the Double Jeopardy Clause should have barred Lovejoy’s retrial for felony murder, I respectfully dissent.
Unlike the defendants in the cases cited by the majority to support its position, Lovejoy did not seek to overturn a conviction on the grounds that the jury reached an inconsistent acquittal verdict in the same trial. Instead, Lovejoy asserted that double jeopardy barred a second trial before a second jury after his acquittal on a lesser included offense of the mistried count.
The cases cited by the majority demonstrate that the Double Jeopardy Clause is aimed at protecting defendants against multiple prosecutions for the same offense and safeguards a defendant’s valued right to have his trial completed by a *451particular tribunal. Yet the majority concludes that cases involving inconsistent jury verdicts reached in a single trial control this case.
The majority is undoubtedly correct that the several counts of an indictment are not interdependent and follow different tracks during the course of a trial. Both this court and the United States Supreme Court consistently have reached that conclusion. See, e.g., Dunn v. United States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356; Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566. That line of authority, however, does not answer the question presented here (i.e., whether Lovejoy’s acquittal on the charge of murder prevents his retrial for felony murder — a count on which the first jury hung).3 Enforcement of inconsistent verdicts in a single trial does not implicate the constitutional concerns present where the state obtains a conviction following successive prosecutions. See Nesbitt v. Hopkins (C.A.8, 1996), 86 F.3d 118, 121.
Similarly, the issue presented in this case is not resolved by Richardson v. United States (1984), 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242. Richardson did not involve an analysis of whether a jury verdict of acquittal that accompanies the declaration of a mistrial after jury deadlock on a related count may bar reprosecution under the Double Jeopardy Clause of the United States Constitution. The Richardson court simply resolved that judicial declaration of a mistrial in response to a jury’s failure to reach a verdict is not an event that, by itself, terminates jeopardy so as to trigger the protections embodied in the Double Jeopardy Clause. Id. at 326,104 S.Ct. at 3086, 82 L.Ed.2d at 251. In so holding, however, the Richardson court acknowledged that events such as an acquittal, or an appellate court’s finding of insufficient evidence to convict, act to terminate jeopardy. Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251.
Having explained why the cases cited by the majority do not mandate its conclusion, I next consider the arguments and authority presented by the parties. Additionally, because of the nature of this case, it is necessary to expand our constitutional analysis to include not only the protections embodied in the collateral estoppel (issue preclusion) prong of the Double Jeopardy Clause, but the concomitant protections present in its “same-offense” preclusion prong, as determined under the test enunciated in Blockburger v. United States (1932), 284 *452U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. Compare State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E.2d 541.
Applicability of Collateral Estoppel
The state’s preliminary argument for reversal of the appellate court’s decision focuses on dicta found in the United States Supreme Court’s opinion in Ohio v. Johnson (1984), 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425, 434, fn. 9, implying that the protections implicit in the doctrine of collateral estoppel are applicable only where the state prosecutes factually linked charges seriatim. The state argues that the court’s statement in Johnson supports the distinction between cases of government overreaching — where a defendant is purposefully subjected to successive prosecutions that allegedly arise out of the same facts— and retrial of a defendant on grounds of manifest necessity occasioned by a jury’s inability to arrive at a verdict. The state concedes that the doctrine of collateral estoppel is applicable to prevent the former scenario, but argues that the doctrine is inapplicable to the latter, as the concerns underlying the collateral estoppel doctrine are not present.
Lovejoy relies on this court’s decision in State v. Liberatore (1983), 4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116, and federal circuit court authority to demonstrate that the state’s interpretation of the Johnson footnote is erroneous.
While, at first blush, the Johnson footnote appears to be directed to the situation presented in this case, closer analysis reveals that it is not. The Johnson court reviewed a case where a criminal defendant entered guilty pleas to lesser included offenses of the crimes charged, which the court accepted over the state’s objection. The defendant then attempted to use his convictions on the guilty pleas as a sword to strike down the state’s attempt to prosecute him on the other crimes for which he was indictéd.
Johnson involved prosecution following conviction without trial. In contrast, the state subjected Lovejoy to two trials — an initial trial and a later trial on the counts on which the first jury had been unable to agree on a verdict. In a literal sense, trial after a hung jury mistrial represents reprosecution of the defendant— seriatim prosecution. Jeffers v. United States (1977), 432 U.S. 137, 152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168, 181. Accordingly, the collateral estoppel branch of the double jeopardy doctrine, which relates solely to prosecutions following an acquittal verdict, while wholly inapplicable to the Johnson facts, remains potentially applicable in the present case.
In Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the court recognized that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel. In defining the rule of collateral estoppel, the Ashe court stated: “[W]hen an issue of ultimate fact has once been determined by a valid *453and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. As a component of the Double Jeopardy Clause, collateral estoppel “protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Id. at 445-446, 90 S.Ct. at 1195, 25 L.Ed.2d at 476-477. The rule dictates that once a tribunal has decided an issue of ultimate fact in the defendant’s favor, a second jury may not reach a directly contrary conclusion in a later trial. Dowling v. United States (1990), 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717.
Courts analyzing the issue presently under consideration have consistently held collateral estoppel applicable as a mandate of the federal Constitution’s Double Jeopardy Clause. See, e.g., United States v. Shenberg (C.A.11, 1996), 89 F.3d 1461, 1479; United States v. McLaurin (C.A.9, 1995), 57 F.3d 823, 826; United States v. Bailin (C.A.7, 1992), 977 F.2d 270, 275-276; United States v. Frazier (C.A.6, 1989), 880 F.2d 878, 883; State v. Crate (1996), 141 N.H. 489, 686 A.2d 318; Ferrell v. State (1990), 318 Md. 235, 248-256, 567 A.2d 937, 944-948. In reaching that conclusion, those courts have recognized that “ ‘[allowing a second jury to reconsider the very issue upon which the' defendant has prevailed serves no valuable function. To the contrary, it implicates concerns about the injustice of exposing a defendant to repeated risks of conviction for the same conduct, and to the ordeal of multiple trials, that lie at the heart of the double jeopardy clause.’ ” Bailin, supra, at 277, quoting United States v. Mespoulede (C.A.2, 1979), 597 F.2d 329, 336-337. I would approve Liberatore, supra, as this court’s acknowledgment that the doctrine of collateral estoppel is applicable to bar retrial of mistried counts in criminal cases involving partial verdicts of acquittal.4
Defendant’s Burden of Establishing a Factual Predicate
A determination that the doctrine of collateral estoppel is potentially applicable to bar retrial of mistried counts, however, does not end the inquiry. Instead, it is proper next to review the appellate court’s decision to determine whether it correctly concluded that the bar attaches in this case. In making that determination, a court must “ ‘examine the record of the prior proceeding, taking into *454account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-476, quoting Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions (1960), 74 Harv.L.Rev. 1, 38-39. It is the defendant’s burden “to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States (1990), 493 U.S. 342, 350, 110 S.Ct. 668, 673, 107 L.Ed.2d 708, 719. The court has termed this burden a “factual predicate for the application of the doctrine.” Schiro v. Farley (1994), 510 U.S. 222, 232, 114 S.Ct. 783, 790, 127 L.Ed.2d 47, 58.
Upon review of the record, I am unconvinced that Lovejoy carried his burden of establishing the factual predicate. The court of appeals determined that the jury’s verdict acquitting Lovejoy of murder was grounded on either of two conclusions — (1) that Lovejoy was not a participant in the crime, or (2) that Lovejoy did not act with purpose in causing Curry’s death (the element of purpose is common to murder and felony-murder aggravated murder). Review of the evidence at trial, the charge to the jury, and Ohio law, however, does not compel that conclusion.
The state’s evidence did not implicate Lovejoy as the principal offender in Curry’s murder. Instead, the state sought to impose criminal responsibility on Lovejoy as an aider and abettor. The state tried the defendant on two separate counts of aggravated murder. The first count charged that Lovejoy purposely caused Curry’s death with prior calculation and design. In connection with the first count, the court also charged the jury on lesser included offenses of murder and involuntary manslaughter. The second count charged Lovejoy with aggravated murder for purposely causing Curry’s death in connection with the commission of a felony. Under the second count, the court instructed the jury on lesser included offenses of murder and involuntary manslaughter, as it had done in connection with count one.
In attempting to prove that Lovejoy intended Curry’s death, the state relied heavily on Lovejoy’s participation in the aggravated robbery. According to the state, Lovejoy’s motive to kill Curry resulted from commission of the robbery — to avoid retribution. Moreover, the bulk of the state’s evidence on the prior-calculation-and-design murder charge relied on inferences from the manner in which the robbery was allegedly committed. The state produced scant evidence apart from Lovejoy’s alleged participation in the robbery that would have demonstrated that Lovejoy and Stepherson (the principal offender in the murder) devised a plan to kill Curry.
The court charged the jury as follows:
*455“When a person has engaged in a common design with another to commit aggravated robbery by force or violence or in a manner likely to produce death, it may be inferred that such person intended to cause the death of any other person who is killed during the commission of the offense. That inference, however, is not conclusive, but it may be considered in determining intent.”
The jury charge is a correct statement of Ohio law. R.C. 2903.01(D); State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph one of the syllabus. For the inference to be made, however, the jury was first required to determine that Lovejoy engaged in a common design with an accomplice to commit the robbery. Because the jury was unable to agree on a verdict as to count two and its lesser included offenses and count three (the aggravated robbery charge itself), it is plausible that the jury considered itself restrained from considering evidence related to the robbery in connection with count one.
Without the benefit of inferences drawn from commission of the robbery, the jury was left with the scantiest of evidence upon which to base Lovejoy’s purpose. This may be why the jury returned acquittal verdicts on all of the charges related to the prior-calculation-and-design count — because, aside from proof of the robbery, which was an element of the felony-murder charge, there was little independent evidence upon which a jury could ground a finding of purpose to kill. Given this scenario, the jury’s acquittal on the charges related to the prior-calculation-and-design murder count does not equal a decision favorable to Lovejoy on the issues of purpose or identity regarding the felony-murder charge.
Finally, considering the court’s instructions, the jury determinations do not clearly establish a finding in Lovejoy’s favor on the issue of purpose or identity. Instead they reveal only inconsistency.
Regarding the felony-murder count, the jury was charged, “If you find that the State failed to prove beyond a reasonable doubt that the defendant purposely caused the death of Nathan Curry, you will find the defendant not guilty of aggravated murder and not guilty of murder * * The court also generally charged the jury, “If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.” Here, if we were to assume the jury unanimously determined the issue of identity or purpose to kill in Lovejoy’s favor in connection with his acquittal of murder at the first trial, the jury would have also been required to enter an acquittal on the felony-murder charge and its lesser included offense of murder. Compare United States v. Aguilar-Aranceta (C.A.1, 1992), 957 F.2d 18. Instead, the jury failed to agree on any verdict regarding count two.
In sum, the jury verdict did not necessarily depend on a finding that Lovejoy was not a participant in the crime or that Lovejoy lacked purpose to cause *456Curry’s death. Accordingly, I would conclude that Lovejoy has not carried his burden of establishing a finding in his favor on either issue.
Acquittal on “Same Offense” as an Act Terminating Jeopardy
One final issue requires analysis — should Lovejoy’s acquittal of murder in connection with count one (prior-calculation-and-design murder) bar a second trial after a hung jury mistrial on count two (felony-murder) under the Blockburger test? In Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309, the court stated that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two or only one, is whether each provision requires proof of a fact which the other does not.”
Other courts, relying on Richardson, have reasoned that jeopardy continues on any count resulting in a hung jury mistrial and a defendant’s only protection against a second trial resides in the collateral estoppel doctrine.5 It is my belief *457that this conclusion results from a reading of Richardson that is unduly formalistic, resulting in a strained attempt by courts to reason that collateral estoppel applies outside of jeopardy concepts.
As a prerequisite to application of the double jeopardy doctrine, Richardson requires only the occurrence of “some event” terminating the original jeopardy. Richardson, 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The Richardson court referred to an acquittal as being such an event, but never stated whether an acquittal on one count may terminate jeopardy as to another.
In Price v. Georgia (1970), 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300, 305, the court recognized an implied acquittal (where a jury returns a conviction on a lesser included offense when given a choice between a lesser and greater offense) as an event that terminates jeopardy. Conceptually, a jury’s silence regarding a greater offense in the implied-acquittal context is different from a court’s declaration of a mistrial for the jury’s inability to reach a verdict. In the implied-acquittal scenario, we may assume that the jury considered and rejected conviction of the greater offense. In the hung-jury-mistrial scenario, that inference is foreclosed. Nevertheless, the Price court’s recognition of an implied acquittal as an event that terminates jeopardy argues against an overly formalistic reading of Richardson, by demonstrating that an acquittal on one charge may terminate jeopardy as to another.
The Richardson court, citing Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, also recognized that a judicial declaration of insufficient evidence to convict is an event that terminates jeopardy. Richardson, 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The Burks court held that an unreversed appellate ruling that the government had failed to introduce sufficient evidence at a first trial terminated the defendant’s jeopardy, because that ruling constituted a decision that the government had failed to prove its case. Burks, 437 U.S. at 10-11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9.
In determining whether jeopardy terminates after a trial resulting in a partial verdict and a hung jury mistrial, a rigid, mechanistic rule that the defendant always remains in continuing jeopardy regarding those counts for which the court declared a mistrial is inappropriate. See Illinois v. Somerville (1973), 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 432. Instead, an acquittal verdict should terminate jeopardy not only as to the charge for which it is returned, but also as to any charge that would require the state to prove the acquitted charge as a subcomponent. The acquittal demonstrates a resolution, correct or not, that *458the state has failed to prove the elements of that offense after one full and fair opportunity to do so. To that decision, the Double Jeopardy Clause affords finality. Dowling, supra, 493 U.S. at 355, 110 S.Ct. at 676, 107 L.Ed.2d at 722 (Brennan, J., dissenting); Fong Foo v. United States (1962), 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629, 631.
It would be repugnant to the principles of double jeopardy to subject a defendant to a second trial on a compound offense that required him to defend against that same charge (as a subcomponent of a compound offense) for which he formerly received a verdict of acquittal {e.g., felony-murder trial after acquittal of the underlying felony). The same concern arises where a defendant is retried on a greater offense after a hung jury mistrial, where the original jury acquitted the defendant of a lesser included offense {e.g., prior-calculation-and-design murder trial after acquittal of murder). In contrast, where a jury acquits on a compound offense but is hung on the predicate offense, the same concerns are not present on the retrial of the predicate offense — the state will not again seek to prove that the defendant committed an offense upon which he was formerly acquitted {e.g., hung jury on the underlying felony and acquittal of felony-murder aggravated murder). The same is true where a defendant is retried on a lesser included offense after a hung jury mistrial, where a jury formerly acquitted the defendant of the greater offense {e.g., hung jury on murder and acquittal of prior-calculation-and-design aggravated murder).
In this case the jury acquitted Lovejoy of murder under R.C. 2903.02 in connection with count one. As stated in the Legislative Service Commission’s comment to R.C. 2903.02, “the offense can be a lesser included offense to both forms of aggravated murder.” In fact, in this case, the court gave an identical charge of murder as a lesser included offense under both counts. Both counts involved the same victim, the same conduct, and the same proof. There is no legal basis under which the murder charges under counts one and two may be distinguished.
Because, at the second trial, to gain a conviction on the felony-murder charge the state was required to prove every element of the formerly acquitted murder charge, the Double Jeopardy Clause prohibited Lovejoy’s retrial for aggravated murder. The prior acquittal terminated Lovejoy’s jeopardy on the mistried aggravated murder charge, and Blockburger may be applied to bar the second trial.
Issue on Cross-Appeal
Consistent with Lockhart v. Nelson (1988), 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265, the appellate court’s ruling that the trial court erred in taking judicial notice of Lovejoy’s prior conviction does not bar Lovejoy’s retrial on the *459charge of having a weapon while under a disability, despite any claim that, absent judicial notice, the state’s evidence was insufficient to support a conviction.
The test announced in Lockhart looks to all the evidence actually admitted to determine sufficiency for purposes of the double jeopardy doctrine. Id. at 40, 109 S.Ct. at 290-291, 102 L.Ed.2d at 273. That the court admitted evidence erroneously goes only to ordinary issues of trial error and has fundamentally different implications from a reversal based on evidentiary insufficiency. Trial error does not imply guilt or innocence of the defendant, but is a determination that the defendant has been convicted through a defective process. Id. Accordingly, the appellate court acted correctly in remanding the case for a new trial after determining that the trial court erred in its use of judicial notice.
Conclusion
In accordance with the above analysis, I would affirm the judgment of the appellate court.
Moyer, C.J., and Pfeifer, J., concur in the foregoing dissenting opinion.. In reaffirming the Dunn rule, the Supreme Court specifically noted that Dunn’s statements regarding res judicata, if not incorrect at the time, are no longer acceptable in light of more recent cases analyzing collateral estoppel. United States v. Powell (1984), 469 U.S. 57, 64, 105 S.Ct. 471, 476, 83 L.Ed.2d 461, 468. Nonetheless, the Powell court found the Dunn rule rests on sound rationale independent of its erroneous reliance on theories of res judicata. Accordingly, the Dunn rule is of limited value where, as here, multiple prosecutions invoke double jeopardy concerns not present in the Dunn scenario of inconsistent verdicts.
. The majority’s attempt to distinguish State v. Liberatore (1983), 4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116, fails. Liberatore was, in fact, indicted on separate counts of aggravated arson and aggravated murder. Aggravated arson served as the predicate felony for the aggravated murder charge. Nevertheless, both statutory offenses were charged as separate counts in the indictment. This was also the ease in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, where the court allowed conviction of the compound offense to stand despite acquittal in the same trial on a separate count containing its predicate offense.
Moreover, federal authority does not support the majority’s distinction. In United States v. Powell (1984), 469 U.S. 57, 67-68, 105 S.Ct. 471, 478, 83 L.Ed.2d 461, 470, the court declined to carve out an exception to the Dunn rule where “the jury acquits a defendant of a predicate felony, but convicts on the compound felony.”
. Demonstrative of this trend is the Seventh Circuit Court of Appeals’ decision in United States v. Bailin (C.A.7, 1992), 977 F.2d 270, 275-276, which has been either expressly adopted or cited with approval by many state and federal courts. See, e.g., United States v. Shenberg (C.A.11, 1996), 89 F.3d 1461, 1479.
The Bailin court cited Richardson for the proposition that the defendant therein remained in continuing jeopardy regarding counts for which a jury was unable to reach a verdict, resulting in the court’s declaration of a mistrial. Despite finding continuing jeopardy, the Bailin court held that collateral estoppel was applicable, apparently analyzing collateral estoppel as a concept independent of jeopardy concerns.
In Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the court held that collateral estoppel is embodied in the Fifth Amendment’s guarantee against double jeopardy and, therefore, is applicable to the states through the Fourteenth Amendment. Id. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476. As a matter of federal constitutional law, collateral estoppel is derivative of the Double Jeopardy Clause, and therefore its protections should attach only after jeopardy has terminated. I find no authority in Supreme Court precedent that would impose concepts of collateral estoppel embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution upon the states outside that clause’s application.
The Bailin court reasoned that “collateral estoppel is applicable in criminal cases only when double jeopardy is not.” (Emphasis sic.) It supports this statement by postulating that if collateral estoppel were to operate only in the double jeopardy sphere, Ashe would be overruled and collateral estoppel would become a nullity. Bailin, supra, 977 F.2d at 275.
I believe an acquittal terminates jeopardy not only on the count for which the defendant received an acquittal verdict, but also as to separate offenses that share common issues of ultimate fact necessarily determined in a defendant’s favor as subsumed in an acquittal verdict, as determined under the Ashe test. Ashe embodies the Supreme Court’s recognition that, for purposes of double jeopardy, there is no constitutional distinction between reprosecuting a criminal defendant on the same count for which he received an acquittal verdict and reprosecuting a criminal defendant on a separate offense involving a common issue of ultimate fact that was decided in the defendant’s favor at an earlier trial. Ashe, 397 U.S. at 446, 90 S.Ct. at 1196, 25 L.Ed.2d at 477.
“[A]n acquittal ‘represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ (Emphasis added.)” Justices of Boston Mun. Court v. Lydon (1984), 466 U.S. 294, 309, 104 S.Ct. 1805, 1814, 80 L.Ed.2d 311, 325, quoting United States v. Martin Linen *457Supply Co. (1977), 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642, 651. The guarantee against double jeopardy extends to protect “the accused from attempts to relitigate the facts underlying a prior acquittal.” Brown v. Ohio (1977), 432 U.S. 161, 165-166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194.