¶1dissenting.
¶2{¶ 27} In State v. Lovejoy (1997), 79 Ohio St.3d 440, 683 N.E.2d 1112, we held that the Double Jeopardy Clause bars retrial in a criminal case when a court of appeals reviews the evidence and determines that the properly admitted evidence is insufficient to support a conviction. Because the majority opinion improperly limits the holding of Lovejoy, I dissent.
¶3{¶ 28} The majority correctly explains the pertinent facts of Lovejoy. In that case, the trial court reopened the evidence, sua sponte, after the close of the case, in order to take judicial notice of a fact essential to the state’s case. Id. at 449, 683 N.E.2d 1112. The court of appeals held that the trial court had erred in reopening the evidence and that without the judicially noticed evidence, the *210remaining, properly admitted evidence was insufficient to support a conviction. Id. at 450, 683 N.E.2d 1112.
¶4{¶ 29} We held that double-jeopardy principles barred retrial, because retrial under such circumstances “is what the Double Jeopardy Clause was intended to prevent. If the state fails to present sufficient evidence to prove every element of the crime, it should not get a second opportunity to do that which it failed to do the first time.” Id. The court of appeals, when reviewing the evidence for sufficiency, was constrained to use only the evidence that was properly admitted; because this evidence was insufficient, principles of double jeopardy barred a new trial. Id.
¶5{¶ 30} The United States Supreme Court had already spoken on this issue by the time Lovejoywas decided. As the majority recognizes, the United States Supreme Court concluded that “where the evidence offered by the State and admitted by the trial court — whether erroneously or not — would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.” Lockhart v. Nelson (1988), 488 U.S. 33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265. Thus, the holdings of Lovejoyand Lockhartappear to offer conflicting holdings regarding whether evidence that was improperly admitted may be considered when reviewing a sufficiency-of-the-evidence claim.
¶6{¶ 31} Here, the second proposition that we accepted for review is whether “Ohio’s Double Jeopardy Clause forbids the retrial of a defendant when the State failed to present legally sufficient admissible evidence at the first trial to support a criminal conviction.” Ohio’s Double Jeopardy Clause, which is contained in Section 10, Article I of the Ohio Constitution, has historically been interpreted to offer the same protections as its federal counterpart, which is contained in the Fifth Amendment to the United States Constitution. State v. Gustafson (1996), 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (“Ohio courts have historically treated the protections afforded by the Double Jeopardy Clauses of the Ohio Constitution and the United States Constitution as coextensive”).
¶7{¶ 32} Yet Ohio’s Constitution is a document of independent force and significance. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163. And the rights of citizens under the Ohio Constitution are not to be lessened by the jurisprudence of related federal constitutional provisions. In the syllabus of Arnold, we held:
¶8{¶ 33} “The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill *211of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.” Id. at paragraph one of the syllabus.
¶9{¶ 34} In this instance, pursuant to Lovejoy, Ohio’s Double Jeopardy Clause would offer greater protection from multiple prosecutions than the federal clause by narrowing the circumstances under which a defendant may be retried when the state fails to prove its case during the first go-around. Although we have historically found Ohio’s Double Jeopardy Clause to be coextensive with its federal counterpart, Ohio’s clause is not limited by the federal clause.
¶10{¶ 35} The Lovejoymajority was well aware of Lockhartwhen Lovejoywas decided, yet it chose a different path. In fact, the dissent — which I joined— would have applied the Lockhartstandard. Lovejoy, 79 Ohio St.3d at 458-459, 683 N.E.2d 1112. In the dissenting opinion, Justice Cook explained that Lock-hart permits a reviewing court to examine all the evidence, even the evidence that was improperly admitted, when determining sufficiency. Id. at 459, 683 N.E.2d 1112. Under Lockhart, erroneous admission of evidence is a matter of “trial error,” which “has fundamentally different implications from a reversal based on evidentiary sufficiency. 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.” Lovejoy at 459, 683 N.E.2d 1112. Accordingly, under the United States Supreme Court’s double-jeopardy doctrine, a court considers all evidence — whether properly admitted or not — when evaluating for sufficiency, and retrial is permitted when that evidence is sufficient to support a conviction. Lockhart, 488 U.S. at 34,109 S.Ct. 285, 102 L.Ed.2d 265.
¶11{¶ 36} However, the majority in Lovejoydid not apply Lockhart. Thus, Lovejoyimplicitly holds that for double-jeopardy purposes, Lockhartis not controlling in Ohio. Indeed, Lovejoy’s holding on this issue is irreconcilably opposed to Lockhart; under Lovejoy, improperly admitted evidence cannot be considered when a court of appeals evaluates the sufficiency of the evidence. Lovejoy, 79 Ohio St.3d at 450, 683 N.E.2d 1112. Of course, such a result is entirely permissible under the principles of federalism.
¶12{¶ 37} The majority distinguishes the present case from the situation in Lovejoy, in which closing arguments had been made when the trial court reopened the case to take judicial notice of certain evidence. In Lovejoy, according to the majority, the state did not rely on the trial court’s erroneous admission of evidence, but instead failed to make its case with sufficient evidence prior to the trial court’s taking judicial notice of certain essential facts.
¶13{¶ 38} In the present case, the trial court’s error was in the admission of inadmissible hearsay evidence. According to the majority, in this case, the trial court’s erroneous ruling could have harmed the state, in that the state relied on that ruling to determine what evidence to present at trial. In other words, the *212state was satisfied that with the admission of this particular piece of testimony— later determined inadmissible hearsay — it had sufficiently established proof of the element of the offense charged and therefore did not need to introduce any extra evidence regarding that particular element of the offense. The state’s ability to rely on the trial court’s evidentiary rulings in such situations furthers the administration of justice by saving time in the preparation and trial of criminal matters, according to the majority. I need not address the efficacy of the underlying policy choices in this rationale, because I find the differentiation unpersuasive.
¶14{¶ 39} Before us is the question of which evidence is available to a court of appeals for review of the sufficiency of evidence: should evidence that was improperly admitted be included in the sufficiency calculus? It matters not who propounded the evidence and when; the error was the same. In Lovejoy, the trial court erred by sua sponte reopening the evidence after the close of the state’s case; in this case, the trial court erred by admitting inadmissible evidence. In both cases the improper evidence was requisite for conviction. And in both cases, the heart of the error was the erroneous admission of crucial evidence. Lovejoyshould control the issue before us.
¶15{¶ 40} For the foregoing reasons, I would reverse the decision of court of appeals, vacate Brewer’s conviction, and hold that Ohio’s Double Jeopardy Clause bars Brewer’s retrial. Accordingly, I dissent.