[Cite as State v. C.C. , 2019-Ohio-4881.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO Appellant

v. C.C. Appellee C.A. No. 29278

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 18 CRB 10052
DECISION AND JOURNAL ENTRY Dated: November 27, 2019

CALLAHAN, Presiding Judge. {¶1} Appellant, the State of Ohio, app eals an order that granted C.C .’s motion for acquittal after opening statements. This Court sustains the St ate’s assignment of error, but must affirm the judgment.
I. {¶2} C.C. was charged with violating a protection order in violation of R.C. 2919.27. Before trial commenced, he filed a motion in limine asking the trial court to exc lude the ex parte protection order at issue, argui ng that a protection order had not issued after a full hearing and the records of the underlying case had been expunged. The Stat e maintained that C.C. committed the acts at issue while t he ex parte protection order was in effect. {¶3} After opening statements, C.C. moved for a judgment of acquitta l, arguing that the State could not present sufficient evidence to obtain a con viction for violating the ex parte order. The trial court grante d the motion and dismissed the ch arge. The State m oved for leave to2 appeal two issues under App.R. 5( C): whether the trial court er red when it determined that the ex parte protection order had been expunged and whether the trial court erred in granting C.C.’s motion for acquittal after opening statements. This Court gran ted leave to appeal with respect to the second issue only pursuant to State v. Bistricky , 51 Ohio St.3d 157 (1990), syllabus.
II. ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANTAPPELLANT’S CRIM.R. 29 MOTION. {¶4} In its sole assignment of error, the State maintains that the t rial court erred by considering C.C.’s motion for acquittal because the motion was premature under the Ohio Rules of Criminal Procedure and, even if permitted, because the motio n was not based on the content of the opening statement, but on a premature assessment of the evidence that would be adduced at trial. This Court agrees. {¶5} Crim.R. 29(A) provides for a motion for acquittal based on the sufficiency of the evidence in support of the State ’s case. The Rule provides: Motion for Judgment of Acquittal . The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the in dictment, information, or complaint, if the evidence is insufficient to s ustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case. A motion that tests the suffici ency of the evidence “cannot pro perly be made until, at the earliest, the conclusion of the state’s cas e in chief and pursuant to a C rim.R. 29(A) motion.” State v.
Hitsman , 9th Dist. Medina No. 18CA0015- M, 2018-Ohio-5315, ¶ 16, citing State v. Kolat , 11th Dist. Lake No. 2001-L-117, 2002-Ohio-4699, ¶ 16, citing State v. Abercrombie , 12th Dist. Clermont No. CA2001–06–057, 2002-Ohio-2414, ¶ 18. In contrast, a defendant may move for a3 judgment of acquittal after opening statements based on the Sta te’s own admission of fact that the defendant did not c ommit the offense: Where, in a criminal proceeding, the state’s statement of its c ase indicates that the accused was charged with the offense for which he is being trie d and there is no admission of fact showing that no offense was committed or that the accused was not guilty of the offense charged, a motion by the accused for judgment on such statement should be overruled. State v. Karcher , 155 Ohio St. 253 (1951), paragr aph one of the syllabus. A mo tion to dismiss under Karcher , therefore, does not ask the trial court to evaluate the suffi ciency of the anticipated evidence. {¶6} C.C.’s attorney did not move for a judgment of acquittal based on the State’s own admissions of fact in its opening statement under Karcher , but on an evaluation of t he anticipated evidence at trial. As such, the motion was a premature motion under Crim.R. 29(A), and the trial court erred by permitting the mo tion. The State’s assignment o f error is sustained on this basis. Nonetheless, the trial court has entered a judgment of acquitta l, and this Court has no choice but to affirm the judgmen t in favor of C.C. See Bistricky , 51 Ohio St.3d at 159.
III. {¶7} The State’s assignment of error is sustained, but this Court mu st affirm the judgment of the Akron Municipal Court. Judgment affirmed.

There were reasonable grounds for this appeal.4 We order that a special manda te issue out of this Court, direc ting the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. No costs to be taxed.

LYNNE S. CALL AHAN FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: EVE V. BELFANCE, Director of Law , and BRIAN D. BREMER, Assistan t Director of Law, for Appellant. SUSAN MANOFSKY, Attorney at Law, for Appellee.