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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

WEIGHT AND SUFFICIENCY OF THE EVIDENCE (106)

Also see Criminal Procedure, Rules of/Criminal Rule 29.

 

In general

Rule 29 acquittal

Weight versus sufficiency

Defenses; Affirmative defenses

Civil cases

Criminal Rule 29 -- Motion for acquittal based on the sufficiency of the evidence.

Article IV, Sec. 3(B)(3) -- "No judgment resulting from a jury trial shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause."

In general

State v. Troisi, 124 Ohio St. 3d 404, 2010-Ohio-275, ¶7: “In deciding whether the evidence presented at a trial was sufficient to support a criminal conviction, a court must ‘“determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.”’ In re Washington (1998), 81 Ohio St. 3d 337, 339…quoting State v. Jenks (1991), 61 Ohio St. 3d 259…paragraph two of the syllabus. The evidence is viewed in the light most favorable to the prosecution, and a reviewing court will not infringe upon the province of the jury by reweighing the evidence. Id. If the evidence is found to be insufficient to prove every element beyond a reasonable doubt, the Double Jeopardy Clauses of the United States and Ohio Constitutions bar retrial. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593…¶15. In contrast, when sufficient evidence has been introduced at trial to convict, ‘but on appeal some of that evidence is determined to have been improperly admitted,’ retrial is not barred. Id. At ¶25.”

State v. Clay, 187 Ohio App. 3d 633, 2010-Ohio-2720, ¶69-71 – Viewing the evidence in the light most favorable to the prosecution means that when conflicting inferences may be drawn from the evidence, the reviewing court will presume the matter was resolved in favor of the prosecution. Assessing whether any rational trier of the facts could find the essential elements proven beyond a reasonable doubt is calculated to protect against those rare instances where a jury, though properly instructed, has done so.

State v Murray, 186 Ohio App. 3d 185, 2009-Ohio-6174, ¶19 – “Because the parties chose to stipulate the facts instead of presenting testimony, the trial court was unable to assess witness credibility and was bound by the facts contained in the stipulation. “A stipulation, once entered into, filed and accepted by the court, is binding upon the parties and is a fact deemed adjudicated for purposes of determining the remaining issues in that case. A party who has agreed to a stipulation cannot unilaterally retract or withdraw it.” State v. McCullough, Putnam App. No. 12-07-09, 2008-Ohio-3055, ¶20.” Otherwise suspicious circumstances were neutralized by the terms of the stipulation, tying the hands of the trial and appellate courts in a case where a man died after falling over an 11-foot wall. The defendant was charged with tampering with evidence because the moved the man, while still alive, back to his truck. Issue was whether the stipulation allowed a finding against the defendant on the question of his knowledge an official investigation was likely to occur.

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶131 – Pursuant to R.C. 2953.02 the Supreme Court may overturn a capital conviction as being against the manifest weight of the evidence only of the crime was committed after January 1, 1995. Statute is followed and review is limited to sufficiency. Case had previously been reversed, retried, and affirmed by the court of appeals.

State v. Vanni, 182 Ohio App. 3d 505, 2009-Ohio-2295, ¶14-15 – Though a case is reversed based on erroneous disposition of a motion to suppress evidence, the reviewing court must further determine the sufficiency of the evidence. If the conviction is not adequately supported, retrial is barred.

State v. Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-4148 – Defendant was a passenger in a pickup truck owned by a third party. The truck was stopped for equipment violations, and eventually materials related to the manufacture of methamphetamine were discovered in the bed and the cab. The defendant appeared nervous, though this might be attributed to reasons other than guilty knowledge. When asked what was in the back of the truck he said, "It ain‘t mine." Evidence was insufficient to establish constructive possession. Material was not in plain view to an occupant of the vehicle, and knowledge such materials were related to meth manufacture could not be imputed to the defendant. Brief argued that the court‘s denial of a prosecution request for an instruction on constructive possession meant that was not a viable theory of culpability upon appellate review, citing United Sates v. Booker (2005), 543 U.S. 220, 230. Claim sidestepped by finding the instruction given reached constructive possession.

State v. Holmes, 181 Ohio App. 3d 397, 2009-Ohio-1241 – Upon appellate review of the sufficiency of the evidence, the reviewing court may find the evidence supports conviction on a lesser included offense or firearm specification. Defendant and her cousin were waiting outside a KFC with a gun to commit a robbery. Evidence did not support aggravated robbery conviction, because the element of brandishing, display, use or indication of possession had not yet been committed. Furthermore, the evidence supported a one-year firearm specification, but not a three-year spec.

State v. Hurst, 181 Ohio App. 3d 454, 2009-Ohio-983 – Injured employee was placed on light duty at the office. In five days 14,000 pictures landed on a new computer‘s temporary Internet cache folder, leading to kiddie porn charges. The defendant testified he had meager computer skills and described crawling under a table to unplug the computer when screens full of images rapidly downloaded. As to the sufficiency of proof on the mens rea element of recklessness in relation to possession, at ¶65-99, the court does not hold the state to merely proving presence of prohibited images in the cache. Defendant loses because of the search terms he used and file names associated with his computer activity – "amazing preteens, elite preteens, family incest tree," etc.

State v. Burnside, 186 Ohio App. 3d 733, 2010-Ohio-1235 – A jury waiver colloquy took place in chambers and was transcribed. The form was signed and filed. In the courtroom the judge said there had been a waiver and defense counsel stated, “Defense is ready.” Waiver was ineffective as it was not made in open curt. Open court means in the courtroom with the judge on the bench and with proceedings open to the public.

McDaniel v. Brown (2010), 130 S.Ct. 668 – Federal courts granted habeas relief from conviction in state court on the basis of Jackson v. Virginia review. Primary basis was a report prepared eleven years after conviction asserting the testimony of the state’s DNA expert was flawed because of the “Prosecutor’s fallacy” which confuses the statistical likelihood a trait will be carried and the unlikelihood the accused is innocent. Supreme Court reverses. (1) Defendant now concedes a subsequently prepared report is not properly received when the issue is jury error. (2) State concedes the prosecutor’s fallacy occurred. (3) Attempt to convert claim to one based on Manson v. Braithwaite fails because it was not argued in the lower courts.

Cavazos v. Smith (2011), 132 S.Ct. 2 – Under Jackson a reviewing court may reverse based on insufficiency only when no reasonable trier of fact could have agreed with the jury. In federal habeas, when the court disagrees with the verdict, it may not grant relief unless the state court’s decision was objectively unreasonable.

State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, ¶36 -- In reviewing a record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."

State v. McKee 91 Ohio St. 3d 293, 2001-Ohio-41 -- (1) At p. 294 when conviction rests solely on challenged testimony, plain error analysis is appropriate. (2) At p. 298 -- "When evidence of an element of the crime charged is deemed insufficient on appeal, the conviction must be reversed."

In re York (2001), 142 Ohio App. 3d 524 -- Thirteen year old took gun from father's sock drawer and showed it to friends. Though the clip was removed, a chambered round was fired, killing a 10-year old friend. Evidence did not establish a purposeful killing, but did support conviction for involuntary manslaughter premised on aggravated menacing. Opinion discusses an appellate court's authority to enter conviction on a lesser included offense.

In re Burton S. (1999), 136 Ohio App. 3d 386 -- Polygraph results favoring the defense were admitted by stipulation, but were discounted by magistrate who found they were inadmissible without giving the parties an opportunity to respond. Reversed.

State v. Morrison (September 20, 2001), Franklin Co. App. No. 01AP-66, 2001-Ohio-8851 -- The criminal standard for appellate review of weight and sufficiency, as set forth in State v. Thompkins 78 Ohio St. 3d 380, 1997-Ohio-52, applies in sexual predator cases.

In re A.C.T., 158 Ohio App. 3d 473, 2004-Ohio-4935, ¶7 -- "The standard of review for an appeal based on sufficiency of the evidence in juvenile delinquency matters is the same as in a criminal prosecution."Citing In re Winship (1970), 397 U.S. 358 and In re Watson (1989), 47 Ohio St. 3d 86, 92.

State v. Johnson 93 Ohio St. 3d 240, 2001-Ohio-1336 -- An aider and abettor must share the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime. Gang member was part of the three car caravan searching for a member of a rival gang they planned to kill in revenge.

State v. Blackburn, Trumbull App. No. 2002-T-0052, 2003-Ohio-605 -- Where a prior conviction served to elevate the degree of the offense, defense counsel only stipulated that the defendant had pled no contest to a prior charge. The judge mistakenly instructed the jury that the parties had stipulated the prior conviction. Majority concludes that the prior conviction element had not been proven, but noting defense counsel's repeated failure to correct the court's misunderstanding, didn't want retrial to be barred by double jeopardy, as would be the result of a reversal based on insufficient evidence. To avoid this, the error is characterized as error in an evidentiary ruling by the judge, invited by defense counsel. Thus charge can be retried. Dissent finds inaction amounted to a stipulation of the prior conviction and would affirm.

State v. Stackhouse, Portage App. No. 2002-P-0057 -- (1) In a prosecution for sale of tobacco to a minor, it was not necessary to test the content of an unopened pack of commercial cigarettes to determine the actual presence of a tobacco product. (2) It is not against public policy to use a minor to purchase cigarettes as a part of an investigation. R.C. 2151.87(E)(2) specifically permits such engagement.

State v. Coe, 153 Ohio App. 3d 44, 2003-Ohio-2732 -- A Rule 29 motion for acquittal is not a prerequisite for challenging the weight and sufficiency of the evidence on appeal.

State v. Sims, 169 Ohio App. 3d 579, 2006-Ohio-6285, ¶22 -- "...(A) defendant does not waive a sufficiency claim by failing to raise it in the trial court. The defendant's "not guilty" plea preserves the right to object to the sufficiency of the evidence because the prosecution must prove each element of the offense beyond a reasonable doubt." Citing State v. Jones (2001), 91 Ohio St. 3d 335, 346 and State v. Carter (1992), 64 Ohio St. 3d 218, 223.

State v. Johnson, 155 Ohio App. 3d 417, 2003-Ohio-6523 -- Convictions were not against the manifest weight of the evidence where the jury chose to credit the victim's initial report to the police over her recantantation at trial.

State v. Stewart, Montgomery App. No. 19971, 2004-Ohio-3103 -- Prosecutor made no proffer of facts following a no contest plea.  The defendant's statement did not include admissions covering the elements of menacing. Remedy for conviction on insufficient evidence is discharge.

In re Amos, Crawford App. No. 3-04-07, 2004-Ohio-7037 -- Issues were proof of corpus delicti and whether conduct of a nine-year old was criminal.  At ¶17: "The State's failure to present any admissible or probative evidence to corroborate K.A.'s statement that he engaged in a sexual act with the victim is compounded by our concerns regarding the characterization of the nature of the sexual act between these two children.  Therefore, after reviewing the record and weighing the evidence in this case, we must conclude that the weight of the evidence does not support the trial court's adjudication on the charge of gross sexual imposition"

State v. Warren, 168 Ohio App. 3d 288, 2006-Ohio-4104, ¶20 -- "However we are constrained to agree that the victim's testimony that appellant inserted his penis inside her vagina 'eight, nine times' and that he inserted his finger into her vagina 'a good 11 or 12 times' is not sufficient to support appellant's convictions of additional charges of rape and gross sexual imposition. '[W]e cannot accept the numerical estimate which is unconnected to individual, distinguishable incidents.' State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, ¶88. Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626."

In re Winship (1970), 397 U.S. 358, 364 -- The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Jackson v. Virginia (1979), 443 U.S. 307 -- The issue is not whether there was any evidence, but rather, whether when viewed in the light most favorable to the prosecution a rational trier of the fact could have found the essential elements of the crime established beyond a reasonable doubt.

State v. Scott (1983), 8 Ohio App. 3d 1, 5 -- "The state is required to prove all the elements of the crime beyond a reasonable doubt, including those elements relating to the corpus delicti. State v. Nutter (1970), 22 Ohio St. 2d 116. The corpus delicti of a crime is 'the body or the substance of the crime, included in which are usually two elements: the act and the criminal agency of the act.' State v. Black (1978), 54 Ohio St. 2d 304, 307."

State v. Windner (1982), 69 Ohio St. 2d 267, 269 -- "(T)he mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor." Also see State v. Weber (1997), 124 Ohio App. 3d 451, 463.

Smith v. State (1931), 41 Ohio App. 64, 68 -- The failure to object to the illegal acts of another does not render one criminally liable.

State v. Sims (1983), 10 Ohio App. 3d 56, 59 -- The defendant must be proven to have taken a role in the offense and not to have merely witnessed it being committed or to have acquiesced to its being committed. Also see State v. Starr (1970), 24 Ohio App. 2d 56, 58; Smith v. State (1931), 41 Ohio App. 64, 67-68; Goins v. State, 46 Ohio St. 457.

State v. Goodin (1978), 56 Ohio St. 2d 438, 442 -- Evidence must attain a high degree of probative force and certainty in order to support a conviction. "Neither a trial court nor an appellate court may abdicate its responsibility to enter a judgment of acquittal when the evidence is legally insufficient to sustain a conviction." Also see State v. Urbaytis (1951), 156 Ohio St. 271, paragraph four of the syllabus; State v. Petro (1947), 148 Ohio T. 473; State v. Murphy (1964), 176 Ohio St. 385.

State v. Assad (1992), 83 Ohio App. 3d 114, 117 -- "The court must review the entire record, weigh the evidence and all reasonable inferences, and consider witness credibility."

State v. Jenks (1991), 61 Ohio St. 3d 259 -- Paragraph two of the syllabus: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)"

State v. Eley (1978), 56 Ohio St. 2d 169 -- Syllabus: "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." Also see State v. Martin (1955), 164 Ohio St. 54; State v. Sage (1987), 31 Ohio St. 3d 173; State v. Eskridge (1988), 38 Ohio St. 3d 56.

State v. Coppock (1995), 103 Ohio App. 3d 405, 411 -- "We must defer to the trial court's findings of fact if they are supported by some competent , credible evidence...In addition, we are 'guided by a presumption that the findings of a trial court are correct'...and unless the record is devoid of competent credible, we will find no abuse of discretion. Moreover, when we weigh the court's legal determinations, 'we will indulge all reasonable presumptions consistent with the record in favor of [the] lower court.'" (Citations omitted.) Also see State v. Armstrong (1995), 103 Ohio App. 3d 416, 420.

State v. White (1968), 15 Ohio St. 2d 146, 151 -- "We indulge in the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears in the record to the contrary." Followed: State v. Post (1987), 32 Ohio St. 3d 380, 384. Also see State v. Astley (1987), 36 Ohio App. 3d 247.

State v. Thompson (1995), 103 Ohio App. 3d 498, 502 -- "The trial court assumes the role of fact finder in a hearing on a motion to suppress evidence. State v. Lewis (1994), 78 Ohio App. 3d 518, 521...A reviewing court will not disturb the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, a reviewing court determines as a matter of law whether they meet the appropriate legal standard. State v. Retherford (1994), 93 Ohio App. 3d 586, 592..." Also see State v. Woods (1996), 113 Ohio App. 3d 240.

State v. Wernet (1996), 108 Ohio App. 3d 737, 745 -- "There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant in applying a harmless error analysis. Relatively minor trial errors are harmless as long as there is overwhelming evidence of guilt from other sources."

Chiarella v. United States (1980), 445 U.S. 222, 235-237 -- In determining whether the evidence supports conviction, must refer to theories of culpability presented to the jury in the instructions, and not an alternative theory arrived at after the fact.

Mayfield Heights v. Riddle (1995), 108 Ohio App. 3d 337, 342 -- "A criminal conviction should not arise from and unsubstantiated belief."

In re Bacorn (1996), 116 Ohio App. 3d 489 -- Though the court's findings may have been supported by the evidence as a whole, they were not supported by the specific expert testimony referred to. Appellate court will not second guess why trial court did not rely on other evidence.

State v. Rogers (1996), 110 Ohio App. 3d 106 -- The prosecution may not appeal a not guilty verdict as being against the weight of the evidence.

State v. Hartley (1988), 51 Ohio App. 3d 47 -- Ohio law does not provide for a motion to dismiss on the basis of a lack of probable cause.

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Rule 29 acquittal

State v. Smith, 176 Ohio App. 3d 119, 2008-Ohio-1682 – Defendant convicted of CCW was one of four passengers in a car where a gun was found under the driver‘s seat. All officer saw was slight movement by the two rear seat passengers, one of whom was the defendant. State‘s case rested on the testimony of a front seat passenger, which was exculpatory, though he was impeached using his prior statement to the police. Since this could not be received as substantive proof of guilt, the trial court erroneously overruled the defendant‘s Rule 29 motion.

New Middleton v. Yeager, Mahoning App. No. 03 MA 104, 2004-Ohio-1549 -- The failure to move for acquittal at trial does not waive an appellant's right to raise a sufficiency of the evidence claim on appeal.  Citing State v. Jones, 91 Ohio St. 3d 335, 346, 2001-Ohio-57; State v. Casto, 4th Dist. No. 01CA25, 2002-Ohio-6255; State v. Carter, 64 Ohio St. 3d 218, 1992-Ohio-127.

Akron v. Molyneaux (2001), 144 Ohio App. 3d 421, 430-431 -- To preserve the issue for appeal, a Rule 29 motion must be renewed at the close of all the evidence. Furthermore, "Since defendant waived any objection under Crim. R. 29 to the sufficiency of the evidence adduced at trial, we conclude that he may not challenge the sufficiency of the evidence on appeal."

State v. Bullitt, 166 Ohio App. 3d 365, 2006-Ohio-2304 -- Conviction was not supported by the evidence where there was no testimony as to analysis of the purported cocaine.  Though different grounds were offered in support of the Rule 29 motion, reversed as plain error.

State v. Hancock, Hamilton App. No. C-030459, 2004-Ohio-1492 -- After the prosecuting witness testified that she was struck accidentally, the prosecutor was properly allowed to impeach using prior inconsistent statements.  Since those statements did not meet any exception to the hearsay rule, they could not be received as substantive evidence of guilt.  Regardless of which version of the facts was more believable, the conviction was not supported by the evidence.  Defendant discharged. Trial judge also criticized for intimidation of the prosecuting witness.  Also see State v. Parsons, Wood App. No. WD-03-051, 2004-Ohio-2216.

State v. Bridgeman (1978), 55 Ohio St. 2d 261 -- Syllabus: "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt."

State v. Brown (1982), 7 Ohio App. 3d 113, 117 -- "...(I)t is only where reasonable minds could not fail to find reasonable doubt that a motion for judgment of acquittal under Crim. R. 29(A) should be granted."

State v. Parks (1990), 56 Ohio App. 3d 8 -- Headnote: "A criminal defendant may present evidence in his defense without waiving his right to claim that the trial court erred by denying his Crim. R. 29 motion for acquittal made at the close of the state's evidence. (State v. Parks [1982], 7 Ohio App. 3d 276...,overruled.) Also see Dayton v. Rogers (1979), 60 Ohio St. 2d 162; State v. Brown (1993), 90 Ohio App. 3d 674, 685.

State v. Norwood (1977), 6 Ohio Ops. 3d 413 -- A court may grant a judgment of acquittal pursuant to Crim. R. 29(C) after the jury has been unable to reach a verdict.

Columbus v. Grant (1981), 1 Ohio App. 3d 96 -- At the close of the evidence, at which time the court is permitted to reserve judgment on a Rule 29(B) motion for acquittal [it may not do so under Rule 29(A) at the close of the state's case], the court did not abuse its discretion in allowing the prosecution to reopen its case and supply evidence on a missing element. Opinion is somewhat apologetic in tone and appears incorrect.

State v. Bazzy (1993), 86 Ohio App. 3d 546, 548 -- "The denial of a motion for judgment of acquittal may not be the basis for a reversal on appeal if, from the evidence presented in the state's case, viewed in a light most favorable to the state, reasonable minds can reach different conclusions as to whether each material element of an offense has been proved beyond a reasonable doubt."

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Weight versus sufficiency

State v. Dykas, 185 Ohio App. 3d 763, 2010-Ohio-359, ¶11: “While the test for sufficiency requires the appellate court to determine whether the state has met its burden of production at trial, the test for manifest weight requires the appellate court to determine whether the state has met its burden of persuasion.” [Citing State v. Thompkins, (1997), 78 Ohio St. 3d 380, 390.]

State v. Emerson, 192 Ohio App. 3d 446, 2011-Ohio-593 -- ¶29: “Sufficiency of the evidence is subjected to a standard different from manifest weight of the evidence. Section 3(B)(3), Article IV of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court ‘has the authority and duty to weigh the evidence and to determine whether the findings of * * * the trier of the facts were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial.’ State ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, 345.”

State v. Freitag, 185 Ohio App. 3d 580, 2009-Ohio-6370 – Court previously found the evidence supported a speeding conviction though radar results were inadmissible. Apparently it remanded for consideration of properly admitted evidence. Court deferred addressing manifest weight assignment of error. Sufficiency finding remains the law of the case, though the court now finds estimate of speed from noise was bogus. Reversal is achieved through the manifest weight claim.

State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837 -- In a capital case the prosecutor's file was sealed for purposes of appellate review. It was found to include statements casting suspicion elsewhere which should have been furnished in discovery. Combined with an ineffective assistance of counsel claim relating to the competence of a key witness, confidence in the verdicts and death sentence was so undermined that a new trial is ordered. While the reversal is based on trial error, language in ¶38 logically applies to weight review.

State v. Bowshier, 167 Ohio App. 3d 87, 2006-Ohio-2822 -- Intimidation conviction was supported by sufficient evidence but was against the manifest weight of the evidence. Defendant's verbal abuse and threats following arrest could be inferred to be a knowing attempt to hinder, influence or intimidate the officer, but could also be inferred to be the product of frustration and rage at being arrested. In assessing weight there is a distinction between weighing credibility, better left to the trier of fact, and weighing competing inferences, and how persuasive each is.

State v. Prade (2000), 139 Ohio App. 3d 676, 696 -- Reversal based on sufficiency "is reserved for the exceptional case where the evidence weighs heavily in favor of the defendant." Because sufficiency is necessary to take a case to the jury, reversal based on weight necessarily means the evidence was sufficient.

State v. Keith (1999), 136 Ohio App. 3d 116 -- From its review of the testimony and the trial court's written decision majority concludes the trial court "clearly lost its way in weighing the evidence" and remands for a new trial on that basis. Third judge would reverse on sufficiency as well, characterizing the prosecution as an "overuse of the criminal law." Also see State v. Weaver, Montgomery App. No. 20549, 2004-Ohio-5986 where court concludes "hard evidence trumps credibility."

State v. Darling (2000), 139 Ohio App. 3d 610, 612 -- When the facts have been stipulated sufficiency may be challenged, but weight and credibility may not.

State v. Macias, Darke App. No. 1562, 2003-Ohio-1565 -- Though the appearance of a object, and the manner in which it was used, may mean conviction on a firearm specification was supported by sufficient evidence, references to a fake gun lead to conclusion conviction was against the manifest weight of the evidence.

Gahanna v. Cameron, Franklin App. No. 02AP-255, 2002-Ohio-6959, ¶ 17 -- By providing a partial transcript not including the testimony of a witness and other portions of proceedings, appellant left the appellate court unable to fully weigh the evidence, which requires a review of the entire record.

State v. Pulaski, 154 Ohio App. 3d 301, 2003-Ohio-4847 -- Three women went out drinking. One fell and suffered a head injury. The defendant remembered being behind the wheel when they set out for the hospital, and initially believed she had been driving at the time of a serious accident. But a reconstruction expert testified she could not have been behind the wheel since the woman with the head injury was pinned in that location. Trial judge erred by not assigning weight to the expert's testimony. Conviction also reversed as being against the weight of the evidence.

State v. Frost, 164 Ohio App. 3d 61, 2005-Ohio-5510 -- Though there was ample evidence to support conviction for aggravated robbery, the court did not present the appropriate theory of culpability to the jury in instructions. Because the fault lay in trial error, and the prosecutor had apparently sought the required aiding and abetting instruction, the court finds double jeopardy does not bar retrial. Note that the state had not filed a cross-appeal.

State v. Thompkins (1997), 78 Ohio St. 3d 380 -- Opinion extensively discusses the distinctions between weight and sufficiency, holding in paragraphs two through four of the syllabus: "(2) The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. (3) To reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary. (Section 3[B][3], Article IV of the Ohio Constitution, applied. Brittain v. Indus. Comm. [1917], 95 Ohio St. 391, 115 N.E. 110, overruled.) (4) To reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required. Section 3[B][3], Article IV of the Ohio Constitution, construed and applied.) Also see State v. Weber (1997), 124 Ohio App. 3d 451, 458-467; State v. Stallings (2000), 89 Ohio St. 3d 280, 289.

Tibbs v. Florida (1982), 457 U.S. 31 -- Double jeopardy bars retrial when a case is reversed because the evidence is insufficient, but not when reversal is because conviction is against the manifest weight of the evidence.

State v. Williams (1990), 67 Ohio App. 3d 677 -- A court may find a verdict against the weight of the evidence even though the evidence may have been sufficient to sustain the verdict.

State v. Getsy (1998), 84 Ohio St. 3d 180, 193 -- As to manifest weight: "This inquiry requires an examination of the entire record and a determination of whether the evidence produced attains the high degree of probative force and certainty required for a criminal conviction."

State v. Eley (1996), 77 Ohio St. 3d 174, 184 -- "...(T)his court lacks the constitutional power to consider and pass upon the weight of the evidence." Court did determine that the evidence was sufficient.

State v. Clark (1995), 101 Ohio App. 3d 389. 407-409 -- "In Ohio, reversal of a jury verdict as against the manifest weight of the evidence is an extraordinary remedy which requires the concurrence of all three appeals court judges hearing the case. *** (T)he following factors are guidelines to be taken into account by a reviewing court: (1) awareness that even a reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary." For other cases listing factors to be considered see State v. Jordan (1992), 73 Ohio App. 3d 524, 538-539; State v. Mattison (1985), 23 Ohio App. 3d 10.

State v. Sorrels (1991), 71 Ohio App. 3d 162, 163 -- An appellate court is to review the record to determine whether the trier of fact clearly "lost its way." An appellate court is to consider whether evidence is reasonably credible or fundamentally incredible, reliable or unreliable, certain or uncertain, contradicted or uncontradicted, and whether testimony was effectively impeached. Also see State v. Martin (1983), 20 Ohio App. 3d 173, 175; State v. Phelps (1991), 75 Ohio App. 3d 573.

State v. Otten (1993), 83 Ohio App. 3d 339, 340 -- "In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."

State v. Legg (1993), 89 Ohio App. 3d 184, 187 -- The discretionary power to reverse a conviction as against the manifest weight of the evidence "should be invoked only in extraordinary circumstances when the evidence weighs heavily in favor of the defendant."

State v. Conley (December 16, 1993), Franklin Co. App. No. 93AP-387, unreported (1993 Opinions 5437, 5438-5439) -- "When the manifest weight of the evidence is the issue, the evidence is not construed most strongly in favor of the state. Instead, the appellate court must engage in a limited weighing of the evidence to determine whether there is sufficient competent, credible evidence to permit reasonable minds to find guilt beyond a reasonable doubt." Also see State v. Ransome (December 8, 1994), Franklin Co. App. No. 94APA06-936, unreported (1994 Opinions 5636).

In re Carter (1997), 123 Ohio App. 3d 532, 542 -- (1) Reversal leading to a new trial moots an assignment of error challenging the weight of the evidence, but not one challenging sufficiency. (2) Though Jenks does not address whether sufficiency is to be determined by looking only at properly admitted evidence, this is the common practice.

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Defenses; Affirmative defenses

State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶33-38 -- Appellate review with respect to affirmative defenses is limited to manifest weight. Sufficiency review is based on due process. Proof supportive of an affirmative defense, here insanity, does not detract from proof beyond a reasonable doubt of acts constituting the charged offense, here capital murder.

State v. Roberts (2000), 139 Ohio App. 3d 757 -- Because sufficiency focuses on the quantum of proof offered by the state, and self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged, weight of the evidence and not sufficiency is the focus of appellate review in a self-defense case. (Argument contra is that the ultimate issue in determining sufficiency is whether a reasonable trier of fact could be convinced of guilt based on the evidence presented, since proof of self-defense on occasion may be beyond dispute.)

State v. Holmes, Franklin App. No. 03AP-787 -- Defendant's unrebutted evidence in support of the affirmative defense of inability to pay the full support order leads to reversal on a manifest weight claim, though the state's evidence is deemed legally sufficient.

Dayton v. Clark, Montgomery App. No. 19672, 2004-Ohio-162 -- Undercover officer approached defendant who was in his car, on a cell phone, with the windows up. Ultimately defendant said he would go home and return with the stated fee for oral sex, but instead went to another location where he was arrested. Majority finds the judge at a bench trail could reject the defendant's claims of entrapment and that he was only joking. Dissenting judge notes entrapment as an affirmative defense only had to be proven by a preponderance of the evidence, and would reverse.

State v. Brown (1983), 5 Ohio St. 3d 133 -- Where the evidence of insanity is overwhelming and uncontroverted a contrary jury verdict must be reversed. Also see State v. Conn (1982), 13 Ohio App. 3d 389.

Burks v. United States (1977), 437 U.S. 1 -- If an appellate court has found the evidence established insanity as a matter of law, the remedy is entry of the appropriate verdict, not retrial.

State v. Thomas (1982), 70 Ohio St. 2d 79, 80 -- "...(I)nsanity is an issue for the jury to decide. Consequently, the jury may give more weight to lay witnesses than to experts if it so chooses. If there is sufficient evidence to support the jury's findings, it is not the reviewing court's place to interfere. The weight to be given the evidence and the credibility of the witnesses concerning the establishment of the defense of insanity in a criminal proceeding are primarily for the trier of the facts." Compare State v. Brown (1983), 5 Ohio St. 3d 133 -- Where the evidence of insanity is overwhelming and uncontroverted a contrary jury verdict must be reversed. Also see State v. Conn (1982), 13 Ohio App. 3d 251.

State v. Copeland (April 13, 1993), Franklin Co. App. No. 92AP-1486, unreported (1993 Opinions 1423) -- A claim that a conviction is against the weight of the evidence, based on the strength of the affirmative defense of self-defense, must fail if there is substantial evidence in the record to support the jury's conclusion that the defendant failed to prove one or more of the elements of self-defense. At p. 1427: "While defendant's subjective state of mind state of mind is highly relevant...the objective conduct of the victim must be considered as well." Also see State v. Caldwell (1992), 79 Ohio App. 3d 667, 679-680.

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Civil cases

In re Savchuk Children, 180 Ohio App. 3d 349, 2008-Ohio-6877, ¶28 – "In juvenile proceedings, we apply the criminal standard for reviewing manifest-weight challenges…Under this standard, when reviewing a claim that a judgment was against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts, the tried of fact clearly lost its way and created such a manifest miscarriage of justice that a new trial must be ordered."

In re A.W., 195 Ohio App. 3d 379, 2011-Ohio-4490, ¶8 -- In determining whether an adjudication of a child as abused, neglected or dependent is against the manifest weight of the evidence, the reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way, and created such a manifest miscarriage of justice that the adjudication must be reversed. Citing In re M.H., 9th Dist. No. 09CA0028, 2009-Ohio-6911, ¶14, quoting State v. Thompkins (1997), 78 Ohio St. 3d 380, 387.

In re Washington (2001), 143 Ohio App. 3d 576, 579 -- "When evaluating whether a judgment is against the manifest weight of the evidence in a civil context, the standard of review is the same as that in a criminal context."

C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 -- Standard for appellate review in civil cases is whether there is some competent, credible evidence going to all the essential elements of the case.

Reed v. Key-Chrysler Plymouth (1998), 125 Ohio App. 3d 437, 440-441 -- The C.E. Morris standard of review is identical to the criminal standard for review of sufficiency, and does not acknowledge the distinction between weight and sufficiency State v. Thompkins recognized in criminal cases: "Nevertheless, the statutory and constitutional authorities that recognize appellate jurisdiction to review matters of weight of evidence do not support drawing a distinction between civil and criminal cases."

State ex rel. Miller v. Private Dancer (1992), 83 Ohio App. 3d 27, 32 -- Civil case standards: "When reviewing a trial court decision to determine whether it is against the manifest weight of the evidence, a court of appeals is guided by the presumption that the findings of the trial court were correct...Further, a reviewing court should not reverse a decision simply because it holds a different opinion concerning the evidence submitted to the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on the credibility of witnesses and the evidence is not." Also see Sessions Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77.

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