In its petition for rehearing, the state disagrees with that part of our original opinion that reverses and dismisses this case. Instead, it suggests we should reverse and remand for retrial on the charge of possession of drug paraphernalia. We agree.
In our earlier opinion, we agreed with the state that the trial court erred in excluding the state’s proffered expert testimony indicating the chrome metal tubing with wire-type mesh possessed by appellant was drug paraphernalia. We further said that such evidentiary error by the trial court did not mean that a jury conviction can be affirmed on appeal by our consideration of matters which the jury did not hear. Of course, we were correct in this observation. However, we further cited and relied on language in Webster v. Duckworth, 767 F.2d 1206 (7th Cir. 1985), wherein that court stated that where a trial court erroneously excludes prosecution evidence, retrial is barred. The Webster court then mistakenly summarized the rule to be that a defendant could not be retried after his conviction was reversed due to the state’s failure to produce evidence sufficient to sustain a verdict of guilty beyond a reasonable doubt and that the insufficiency of the evidence, whether or not caused by an erroneous trial court ruling, was the constitutional equivalent of an acquittal.
The Webster court later amended its opinion deleting the language summarized above. In doing so, the court acknowledged that, under Burks v. United States, 437 U.S. 1 (1978), a defendant may be retried when the government offered sufficient evidence only to have the court erroneously exclude an essential portion. Webster, 767 F.2d at 1215. Stated in other terms, the Burks rule is that the double jeopardy clause prohibits retrial when a conviction is reversed for insufficient evidence as opposed to trial error. Burks, 437 U.S. at 14.
In the present case, insufficiency of the evidence does not exist. Instead, the state offered expert evidence, erroneously excluded by the trial court, which bore on the issue of whether the chrome tube found on Crutchfield was drug paraphernalia and therefore intended for use to inhale controlled substances. Even though the trial court excluded such evidence, it still permitted the possession of drug paraphernalia charge to go to the jury which returned a conviction on the charge. In other words, the trial court never entered an acquittal because of its erroneous ruling nor did the jury acquit Crutchfield because the evidence was excluded. Thus, this case is unlike the case of Sanabria v. United States, 437 U.S. 54 (1977), upon which the dissenting opinion relies. See also United States v. Jenkins, 420 U.S. 358 (1975).
In sum, with the above expert testimony, the trial evidence was sufficient to support Crutchfield’s conviction for possession of drug paraphernalia. See Lockhart v. Nelson, 488 U.S. 33, 41 (1988); Palmer v. Grammer, 863 F.2d 588 (8th Cir. 1988); cf. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987); see also Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81,147 (1979). Under the Burks rationale, the state is entitled to present its proof. Thus, we reverse and remand this case for retrial on the charge of possession of drug paraphernalia. In all other respects, our earlier opinion is reconfirmed.
Dudley, J., dissents.