¶1concurring in part and dissenting in part.
¶2I agree that the conviction must be reversed, but I am not persuaded by the majority’s reasons for ordering a new trial.
¶3*562There is no doubt that when the state’s evidence against a defendant does not suffice to allow a conviction, the defendant is entitled to a judgment of acquittal, and that he then may not again be put on trial for the same offense. ORS 136.445 specifically provides:
"In any criminal action the defendant may, after close of the state’s evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense.”
¶4It also is agreed that the same result follows when the insufficiency of the evidence to support a verdict against the defendant is decided on appeal. An appellate finding that the evidence is insufficient for conviction is equivalent to holding that defendant’s motion for acquittal should have been granted, which bars a new trial.
¶5These rules carry out the constitutional prohibition against putting any person in jeopardy twice for the same offense. Or Const art I, § 12, U S Const amend V. Although the issue here is once again presented as one of federal law, citing opposing projections by different courts of the United States Supreme Court’s eventual view under the fifth amendment, all we know on that score is that the federal question is undecided. Greene v. Massey, 437 US 19, 26 n. 9, 98 S Ct 2151, 57 L Ed 2d 15 (1978). We are, however, responsible for correctly analyzing the law of Oregon.
¶6Sufficient evidence for conviction of course means sufficient evidence properly admitted at the trial. A trial court in ruling on a motion for a judgment of acquittal under ORS 136.445, supra, obviously will not count against a defendant evidence that the court has excluded. Nor can the trial court consider evidence which the court concludes was erroneously admitted over defendant’s objection. Upon reaching this conclusion, the court necessarily must disregard that evidence in deciding whether the remaining evidence suffices to support a conviction.
¶7Why should not the same rule govern when an appellate court decides whether a motion for a judgment of acquittal should have been granted?
¶8*563The majority distinguishes between reversal for "trial errors,” which calls for a new trial, and reversal for insufficient evidence, which calls for acquittal and bars another prosecution. The distinction makes sense in the usual situation in which, irrespective of the error, there is sufficient evidence to support a conviction. But in cases like the present, in which the conviction depends on evidence that the trial court should have excluded from consideration in ruling on the motion for judgment of acquittal, it simply begs the question to characterize defendant’s appeal as based on procedural error, i.e. the admission of inadmissible evidence, rather than on substance, i.e. the right to an acquittal for lack of sufficient proper evidence of guilt.
¶9Defendant’s claim is not so easily dismissed by such a conclusory characterization. This may perhaps best be illustrated by paraphrasing a hypothetical defendant’s contentions. His position vis-a-vis the state may be summarized as follows:
I am not guilty of this charge, and you do not have enough evidence even to take the case to the jury. The key items on which you rely are not legal evidence at all and must be excluded from consideration. Even if you disagree, you had better anticipate that I am right, for I shall certainly move for a judgment of acquittal if you have nothing more, and I am entitled not to be prosecuted again on a new set of evidence.
¶10Similarly, vis-a-vis the trial court, such a defendant’s position from the outset is that the state is seeking to prosecute him upon statements or exhibits that are not legal evidence, that the court is bound to exclude these items from consideration, and that he will be entitled to a final and conclusive judgment of acquittal unless the state introduces other, legally admissible evidence sufficient to support a contrary verdict beyond a reasonable doubt.
¶11These are substantive contentions. They go to the heart of the principle that the state is limited to one and only one prosecution to prove a person guilty of a single offense. The motion for judgment of acquittal is an assertion that the state’s evidence, as a matter of law, falls short of the legally required proof. Of course, if the court has previously admitted inadmissible evidence over defendant’s objection, the motion amounts to a reassertion that *564this evidence cannot properly be counted in ruling on the motion for judgment of acquittal. Of course, also, the asserted error in admitting the evidence is necessarily assigned on appeal as a predicate for the erroneous denial of a judgment of acquittal. But that does not turn the defendant’s appeal on the substantive ground of insufficient evidence, which bars a second trial, into a mere claim of a procedural error in the trial, which calls for correct retrial.
¶12The majority does not address the issue as one of legal principle but rather as if it were a mere pragmatic choice between alternative trial procedures. According to the majority, if the prosecution could not rely on the trial court’s ruling admitting the prosecution’s evidence over objection, it would be placed in a "dilemma.” The alleged dilemma is whether to put on additional evidence "to prove the same fact.” This will sometimes lengthen the trial, which is "time consuming and expensive.” It is even said to "harass the defendant” by introducing more evidence of his guilt than might be needed, which is said (not without irony, in my view) to contravene the policy of the double jeopardy clauses.
¶13I would have thought that the policy of the guarantee against double jeopardy, and of the Oregon statutes that were written to carry it out, is to make the state put on in a single trial whatever evidence it has that a person whom it charges with a crime has in fact committed that crime. If the evidence is insufficient, the prosecution does not get a second try. That is a central principle of the guarantee.
¶14While I do not agree that constitutional principles are properly measured by their advantages or disadvantages for judicial administration, I also see no advantage in piecemeal trials on challenged evidence, followed by an appeal and a retrial -to see whether the prosecution has additional evidence in reserve, as compared with placing before the court in the first trial sufficient evidence so that the appellate court can determine that even without the improperly admitted evidence a conviction upon a second trial could be sustained. There is no "dilemma.” The prosecution need not make an "unreasonable assumption” that the trial court erred in admitting evidence, as the majority says.
¶15*565Particularly in the common situation of pretrial hearings on the admissibility of challenged evidence, there is no persuasive reason to allow the state a second try to prove its case by legally competent evidence. The prosecution knows what gaps in its case will entitle the defendant to a judgment of acquittal if his objections prove to be valid. The prosecution either has unobjectionable evidence of the same element to be proved or it does not. If it does, I doubt that many prosecutors omit such additional evidence unless they are absolutely sure of their legal ground. Whether the prosecution does have additional, unobjectionable evidence or whether it does not, in either event there is no reason to put the defendant (and the judicial system) to the trouble and expense of an appeal and the needless burdens and risks of a second trial, by which time perhaps the defendant may no longer have available all the defense witnesses or testimony presented at the first trial. In short, if in a criminal trial there is alternative evidence to fill the gap in the prosecution’s case asserted by the defendant, there is no justification for holding it back.
¶16Perhaps it is sometimes more convenient to do just that, and to bring out the additional evidence for the first time on a second trial if the original evidence is held to have been wrongly admitted. But the object of the guarantee against double jeopardy is not convenience, nor is it concerned about the prosecution’s "right to rely” on trial court rulings. If this court decides that the law does not permit retrials when the exclusion of wrongly admitted evidence leaves insufficient evidence to support a verdict, then prosecutors will have no reason for such "reliance.” What ORS 136.455 and the double jeopardy clauses assure every person is that if the prosecution does not introduce sufficient legally proper evidence of his guilt to sustain a verdict, he is entitled to a judgment of acquittal and freedom from another prosecution for the same offense.
¶17Accordingly I would not remand this case for a second trial.