¶1dissenting. The state’s ability to appeal as of right was nonexistent until the General Assembly saw fit to enact R.C. 2945.67. Furthermore, Crim. R. 12(J) is an exception to the general rule prohibiting appeals by the state in criminal prosecutions; thus, it must be strictly construed. The sole “purpose of Crim. R. 12(J) is to allow the state a review of the adverse ruling of a trial court on a motion for the return of seized property, or on a motion to suppress evidence, where the granting of the motion has so debilitated the vitality of the state’s case that any reasonably effective prosecution has been destroyed … (Emphasis sic.) State v. Caltrider (1975), 43 Ohio St. 2d 157, 72 O.O. 2d 88, 331 N.E. 2d 710, at paragraph two of the syllabus. In spite of the clear legislative intent, the majority today has extended by judicial fiat the parameters within which the state may appeal as of right pursuant to R.C. 2945.67 and Crim. R. 12(J).
¶2Reliance on State v. Davidson (1985), 17 Ohio St. 3d 132, 17 OBR 277, 477 N.E. 2d 1141, is misplaced. Admittedly, Davidsondealt with the state’s right of appeal in situations beyond motions to suppress. However, the basis was the fact that at times a motion is called a motion in limine when in actuality it is a motion to suppress. Davidson, supra,simply promotes a reasonable interpretation of R.C. 2945.67 and Crim. R. 12(J) in order to *25ensure fairness and avoid a miscarriage of justice.
¶3The state is not totally without ability to appeal other matters, excluding the final verdict, since the General Assembly has provided the state with the ability to appeal by leave of court in R.C. 2945.67. However, today’s holding appears to clothe the state with even broader rights of appeal than those envisioned by the legislature.
¶4While the state endeavored to force the appellee to file a pretrial motion regarding the conversations at issue, none was filed. Hence the state is attempting to appeal a purely adverse evidentiary ruling. It would appear that the state was trying to establish the conspiracy by means of the disputed evidence itself. The trial court ruled that no foundation for a conspiracy was laid by the prosecution. In fact, the trial court made it clear that it would reconsider its ruling if the state presented some independent evidence of the conspiracy. Thus, it becomes quite clear that this was an interlocutory ruling and cannot under any circumstances be appealed.
¶5Not only is this case distinguishable from Davidson, supra,but it is also distinguishable from our recent opinion in State v. Fraternal Order of Eagles Aerie 0337 Buckeye (1991), 58 Ohio St. 3d 166, 569 N.E. 2d 478. The defendants in both Davidsonand F.O.E. Buckeye had filed a pretrial motion. In the present case, no pretrial motion of any kind was filed by appellee. Today’s holding will result in allowing the state an appeal as of right from every adverse evidentiary ruling during the course of trial without any pretrial or mid-trial motion being filed. Immeasurable delays in the prosecution of cases will inevitably result. Indeed, today’s holding implies that trial courts need someone to review all of their routine evidentiary rulings in order that a fair trial may occur. We have always placed great discretion in the trial court to determine what evidence is and is not admissible during the course of a trial. State v. Sage (1987), 31 Ohio St. 3d 173, 31 OBR 375, 510 N.E. 2d 343. A better solution to the problem presented by this case would be to permit the prosecution to file a pretrial motion for an evidentiary ruling. The state would then be in a position to properly prepare and present its case knowing what evidence would and would not be admissible. Additionally, the delays of the appeal process would be avoided. The state, however, still would not be able to appeal any interlocutory rulings which are subject to change during the course of the trial.
¶6After a thorough consideration of R.C. 2945.67 and Crim. R. 12(J), it is beyond comprehension how the state can be afforded an appeal as of right from a purely evidentiary ruling — one which does not involve the seizure of property or an adverse ruling on a motion to suppress evidence. The ruling at issue is totally interlocutory since it could have been changed by the trial court if the prosecution had laid the proper foundation for the existence of a conspiracy.
¶7In conclusion, I also disagree with the majority’s holding as to double jeopardy. However, the foregoing enlargement of the state’s right of appeal as to evidentiary rulings is so strained that I will not comment further on double jeopardy for fear of giving the slightest hint of credibility to the majority’s holding. I would affirm the court of appeals.