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Bud Lite is not beer
RICHARD WEINER
Legal Notebook
Published: May 31, 2012
Local beer snobs may have just found an ally in the 9th District Court of Appeals, which just ruled that Bud Lite, for purposes of judicial notice, is not beer.
The ruling that Bud Lite is not beer in State of Ohio v. Matthew Kareski (2012-Ohio-2173, Dec. May 16, 2012) is very limited. The unanimous appellate decision, written by Judge Donna J. Carr, overturned one of three of the counts that Kareski was found guilty of at trial, and sustained the other two.
Matthew Kareski bar tended at the Akron club, the Rubber City Grille, which is located inside LUX at 1 W. Exchange St. On August 19, 2010, an underage employee of the Ohio Department of Public Safety entered the bar and ordered a Bud Lite from Kareski. As a result of the transaction, Kareski was charged with selling beer to an underage person in violation of O.R.C. 4301.69(A).
One element of 4301.69(A) is the presence of an alcoholic beverage in the transaction—in this case, a beer.
“Beer,” as an element of the crime, is defined technically in in O.R.C. 4301.69(A), as “all beverages brewed or fermented wholly or in part from malt products and containing one-half of 1 percent or more, but not more than 12 percent, of alcohol by volume.”
At the trial, the state failed to produce the witness who was responsible for testing the contents of the bottle that Kareski had served to the minor. At the request of the prosecution, and over the objections of the defense, the trial judge determined through judicial notice that Bud Lite was, in fact, a beer that fit the statutory definition of such a beverage.
The appellate court disagreed with the judge’s determination—holding, in effect, that Bud Lite is not beer.
The appellate court found that the trial court had missed the boat on how to implement judicial notice in two ways.
The first, said the appellate court decision, was that, “regardless of the fact that the parties referred to beer in a general sense throughout the course of the trial, O.R.C. 4301.01(B)(2) defines the term with precision, and it was error for the trial court to take judicial notice that the definition––which is also an element of the offense––had been satisfied.
Although we would agree that it is generally known throughout the trial court’s territorial jurisdiction that Bud Lite is beer, within the common, everyday understanding of that term, we cannot agree that it is generally known whether it contains between one-half of 1 percent and 12 percent alcohol by volume. O.R.C. 4301.01(B)(2) requires just such precision.”
Some wags would say, of course, that Bud Lite has neither the alcoholic content, color or taste to distinguish it from any clear, non-alcoholic beverage like, say, carbonated water.
The appellate decision also scolds the trial judge in the second instance for failing to instruct the jury that it may consider or disregard any judicial notice of facts at trial as required by Evid.R.201(G).
The appellate court thus reversed Kareski’s conviction and ordered a new trial, ruling also that double jeopardy did not attach.
The appellate court was also asked to toss the conviction on the basis of insufficient evidence—that, if Bud Lite was not a beer, then there was no evidence that an intoxicating beverage had been sold.
Those were two separate issues, said the appellate court, which ruled against the bartender on this second issue, stating: “Whether judicial notice can be taken in the first instance and whether a conviction is based on insufficient evidence, however, are separate questions.”
Regarding the sufficiency of evidence at trial, proving that a beer was sold to a minor, the decision stated: “The state’s evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt…. In reviewing the evidence, we do not evaluate credibility, and we make all reasonable inferences in favor of the state.”
The appellate court, in following that logic, found that there was sufficient evidence within the rest of the trial to convict the defendant.
Further, the appellate court held that, “…when the state relies on an erroneous trial court ruling in the presentation of evidence and rests, having presented sufficient evidence to support a conviction, double jeopardy does not bar retrial.”
The case has been remanded to the lower court for a retrial—presumably, that trial will produce evidence that Bud Lite is, in fact, beer.