Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
AND SUFFICIENCY OF THE EVIDENCE
Criminal Procedure, Rules of/Criminal Rule 29.
Rule 29 acquittal
Weight versus sufficiency
Defenses; Affirmative defenses
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."
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
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.
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.
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
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.
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.
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
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
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
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
(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.
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.
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.
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.
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
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
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.
(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
, 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
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
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.
Return to top of page
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,
State v. Casto, 4th Dist. No. 01CA25,
State v. Carter, 64 Ohio St. 3d 218,
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
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.
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,
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
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 , 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,
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."
Return to top of page
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.
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.
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], Article IV of the Ohio
Constitution, applied. Brittain v. Indus. Comm. , 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], 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
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
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
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.
Return to top of page
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
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.
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.
Return to top of page
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
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.
Return to top of page