Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Criminal Rule 29 -- Motion for Acquittal
 
State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617 – A Rule 29 motion at the close of the state’s care is not required to preserve sufficiency of the evidence as an issue on appeal.
 
State v. Simmons, 189 Ohio App. 3d 532, 2010-Ohio-3412 – When there is no evidence in the record that criminal activity occurred within the time span specified in an individual count of an indictment, the court must sustain a motion for acquittal.
 
State v. Ross, 184 Ohio App. 3d 174, 2009-Ohio-3561 – Mistrial was declared in a homicide case based on concerns about one of the jurors. It was later learned the jury had already signed not guilty verdicts on aggravated murder, murder and rape counts, though not on the remaining charges in the indictment. After years of appellate litigation the visiting judge handling the case in the trial court reconsidered his denial of a post-verdict Rule 29 motion and dismissed the rape count and the related capital specification. The court of appeals finds that though reconsideration of final orders is not permitted, this was an interlocutory order. Borrowing from Civil Rule 54(B) via Crim. R. 57(B), reconsideration of interlocutory orders is allowed. But see State v. Ross, 128 Ohio St 3d 283, 2010-Ohio-6282.
 
State v. Ross, 128 Ohio St 3d 283, 2010-Ohio-6282 – The Rule 29(C) acquittal in State v. Ross, 184 Ohio App. 3d 174, 2009-Ohio-3561 stands but only after convoluted reasoning. (1) The state may not appeal a judgment of acquittal, though an appellate court may address an underlying legal issue. (2) The state sought to get around this ban by arguing the fourteen day time limit for filing a post-verdict motion for acquittal was jurisdictional. The court rejects this claim, characterizing the fourteen day limit in Crim. R. 29(C) as a “rigid claim-processing rule.” (3) The court rejects the “interlocutory order” analysis adopted by the Court of Appeals. Crim. R. 45 allows no additional time for filing 29(C) motions. Reconsideration is not provided for.
 
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.
 
Smith v. Massachusetts (2005), 125 S.Ct. 1129 -- Judge granted motion for acquittal on one count at the close of the state's case, then at the end of the trial submitted that count to the jury. Ruling on the motion qualified as acquittal for jeopardy purposes. State law did no treat that ruling as open to reconsideration.
 
State v. Litreal, 170 Ohio App. 3d 670, 2006-Ohio-5416 -- It was a denial of due process for the magistrate to find the defendant guilty of speeding after overruling a Rule 29 motion without allowing the opportunity to present evidence. Plain error reversal because of technical issues.
 
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. Goffee, 161 Ohio App. 3d 199, 2005-Ohio-2596, ¶26-30 -- Error, if any, was invited where the judge overruled a Rule 29 motion with the jury present. Counsel should have made the motion at the bench and had the opportunity to do so.
 
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.
 
State v. Guidulgi, Hamilton App. No. 030568, 2004-Ohio-2871, ¶14 -- "...(T)his court follows the rule that a defendant who presents evidence and testifies in his defense waives his right to challenge the sufficiency of the evidence at the close of the state's case." But the opinion notes other districts do not.
 
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." Also see State v. Edwards, Marion App. No. 0-9-03-63, 2004-Ohio-4015.
 
State v. Fisher, 148 Ohio App. 3d 126, 2002-Ohio-3026, ¶15-16 -- To preserve the issue for appeal, a Rule 29 motion must be renewed at the close of all of the evidence, if a defense is put on. It is not necessary to further move for acquittal pursuant to Crim. R. 29(C) following the verdict.
 
State v. Singleton, (February 26, 2002), Franklin Co. App. No. 01AP-632 -- Reversal where a Rule 29 motion was granted following opening statements because venue was concluded not to lie in Franklin County. Retrial is not barred since double jeopardy does not attach until the court begins to hear evidence.
 
State v. Brooks, Montgomery App. No. C.A. 19152, 2002-Ohio-5527 -- A subsequent guilty plea waives any error in the overruling of a Crim. R. 29 motion for acquittal at the close of the state's case.
 
State v. Salaam, Hamilton App. No. C-020324, 2003-Ohio-1021 -- Court sustained Rule 29 motion insofar as state failed to prove offense took place within 1000 feet of a school, but allowed state to reopen its case after an officer measured the actual distance over the lunch break. No error found as the court had not yet journalized its ruling on the Rule 29 motion.
 
Price v. Vincent (2003), 123 S.Ct. 1848 -- Michigan trial court appeared to agree with the defense that the case should go to the jury only on a lesser included offense, but changed its mind and instructed on the greater offense. A "directed verdict" was never journalized. State appellate court found double jeopardy did not attach. Sixth Circuit reversed. Applying AEDPA standard, the Supreme Court reverses, concluding that for purposes of federal habeas review, the state court decision was not contrary to or an unreasonable interpretation of the Supreme Court's clearly established precedents.
 
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." Also see State v. Black (1978), 54 Ohio St. 2d 304, 308; 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. 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."
 
Cincinnati v. Robben (1982), 8 Ohio App. 3d 203 -- Headnote 1: "A trial court shall not overrule a motion for acquittal made pursuant to Crim. R. 29(A) when, viewing the evidence in a light most favorable to the government, a reasonable mind could not fairly find each element of the offense charged beyond a reasonable doubt." Also see State v. Fyffe (1990), 67 Ohio App. 3d 608, 613; State v. Wolfe (1988), 51 Ohio App. 2d 215 (No proof of second predicate act in racketeering prosecution).
 
State v. Fyffe (1988), 51 Ohio App. 3d 215 -- When reviewing a ruling on a Crim. R. 29(A) motion for a judgment of acquittal, the appellate court construes the evidence in a light most favorable to the state.
 
State v. Scott (1983), 8 Ohio App. 3d 1, 2-3 -- A motion for acquittal may be made following the prosecutor's opening statement.
 
State v. Denis (1996), 112 Ohio App. 3d 397 -- It was ineffective assistance of counsel to fail to raise a meritorious motion to dismiss at the close of the state's case or at the conclusion of the trial.
 
State v. Parks (1990), 56 Ohio App. 3d 8 -- A defendant does not waive his right to appeal an adverse ruling on a Rule 29 motion by proceeding to present evidence in his defense. Previous holding to the contrary in State v. Parks (1982), 7 Ohio App. 3d 276 was based on the holding in a civil case which the Ohio Supreme Court has now overruled. See Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St. 3d 71. Other cases setting forth the old rule which are no longer viable: State v. Whitmeyer (1984), 20 Ohio App. 3d 279; State v. Collins (1977), 60 Ohio App. 2d 116; State v. Deboe (1977), 62 Ohio App. 2d 192; State v. Kirally (1977), 56 Ohio App. 2d 77.
 
State v. Brown (11th Dist. 1993), 90 Ohio App. 3d 674, 685 -- A defendant does not waive error in the overruling of a Rule 29 motion for acquittal by proceeding to introduce evidence in his or her defense. Compare State v. Miley (4th Dist. 1996), 114 Ohio App. 3d 738 which cites Dayton v. Rogers (1979), 60 Ohio St. 2d 162 for the proposition that error is waived if the defendant presents evidence, then fails to renew the motion at the close of the evidence. But Miley was found to have preserved the issue by renewing the motion after the verdict, pursuant to Rule 29(C).
 
State v. Keeton (1985), 18 Ohio St. 3d 379 -- The state may not appeal the granting of a Rule 29 motion for acquittal. Also see State, ex rel. Yates, v. Court of Appeals for Montgomery County (1987), 32 Ohio St. 3d 30.
 
State v. Crosby (1993), 92 Ohio App. 3d 455, 460 -- Crim. R. 29(C) by its language applies only to jury trials. Question whether Crim. R. 29(A) might be used following verdict in a bench trial.
 
State v. Briscoe (1992), 84 Ohio App. 3d 569, 572 -- "Since the trial court's announcement of its inclination to grant the motion for acquittal was not a signed, final order and because no additional evidence was presented by the state, the trial court did not commit any error."
 
State v. Johnson (1988), 61 Ohio App. 3d 693, 696-700 -- Where the prosecutor has proceeded to trial on counts of aggravated robbery predicated on the use of a deadly weapon, it is error to reduce the offense to plain robbery at the time a Rule 29 motion for acquittal is made as robbery is not a lesser included offense to aggravated robbery premised on the use of a deadly weapon. Note that reduction would be proper if trial proceeded only on claim defendant inflicted or attempted to inflict serious physical harm. See State v. Merriweather (1980), 64 Ohio St. 2d 57; State v. Washington (1983), 8 Ohio App. 3d 314.
 
State v. Black (1991), 75 Ohio App. 3d 667, 672 -- Motion for acquittal should have been sustained where complaint failed to allege a criminal offense. Instead of alleging sexual contact or sexual conduct alleged "sexual relations." Prosecutor never sought amendment.
 
State v. Worsencroft (1995), 100 Ohio App. 3d 255 -- Pharmacist and pharmacies he operated as a sole proprietorship were indicted in separate accounts for the same acts. After Rule 29 motion for acquittal was granted as to the pharmacies, continued trial and conviction of the pharmacist constituted double jeopardy. Dissent maintains sole proprietorship was not properly the subject of prosecution and those counts were a nullity. Therefore, jeopardy was not a bar as it might have been were they a business entity legally indistinguishable from the defendant.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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