State v. Kareski, 137 Ohio St. 3d 92

On Aug. 19, 2010, bartender Matthew Kareski served a Bud Light to a 19-year-old confidential informant; ODPS agents recovered the opened bottle.
The State could not properly admit a lab report or foundational testimony proving the bottle’s alcohol content; the label did not clearly show alcohol percentage.
The trial court judicially noticed that Bud Light is "beer" as defined by R.C. 4301.01(B)(2) and instructed the jury accordingly; the jury convicted Kareski under R.C. 4301.69(A).
The Ninth District reversed, holding the trial court erred in taking judicial notice of an element of the offense (alcohol-content percentage) and treated that error as requiring reversal.
The court of appeals nevertheless concluded that the judicially noticed fact could be treated as evidence for sufficiency review (following State v. Brewer) and ordered retrial; Kareski appealed to the Ohio Supreme Court.
The Ohio Supreme Court held the judicially noticed fact (taken in error to supply a missing element) should not be considered in a sufficiency review; because no admissible evidence supported the alcohol-content element, retrial is barred by double jeopardy and conviction vacated.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court’s judicial-notice error may be counted as evidence on appellate sufficiency review to permit retrial	State: judicially noticed fact was "admitted" by the court and, under Lockhart/Brewer, appellate courts must consider all evidence admitted at trial	Kareski: judicially noticed fact was taken to supply an element the State failed to prove and so cannot be treated as evidence for sufficiency; retrial would violate double jeopardy	The court held the judicially noticed fact (taken in error to supply a missing element) must not be considered; there was insufficient evidence and double jeopardy bars retrial

Lockhart v. Nelson, 488 U.S. 33 (federal rule that reviewing courts consider all evidence admitted at trial, even if erroneously admitted)
Burks v. United States, 437 U.S. 1 (reversal for insufficiency bars retrial; such reversal is equivalent to acquittal)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review: whether any rational trier of fact could find guilt beyond reasonable doubt)
State v. Brewer, 121 Ohio St.3d 202 (2009) (adopted Lockhart for Ohio: erroneously admitted evidence may be considered on sufficiency review)
State v. Lovejoy, 79 Ohio St.3d 440 (1997) (trial court’s sua sponte judicial notice of a missing element is not to be counted in sufficiency review; retrial barred)