2003 Ohio 5778 | Ohio Ct. App. | 2003
{¶ 3} In his first and second assignments of error, Mr. Fetter challenges the adequacy of the evidence produced at trial. Specifically, Mr. Fetter avers that his conviction for involuntary manslaughter was based on insufficient evidence and was against the manifest weight of the evidence.1 Mr. Fetter's assignments of error lack merit.
{¶ 4} In order for a defendant to preserve the right to appeal the sufficiency of the evidence upon which his conviction is based, he must timely file a Crim.R. 29 motion for acquittal with the trial court. Statev. Liggins (Aug. 18, 1999), 9th Dist. No. 19362. See, also, State v. Roe
(1989),
{¶ 5} In the instant case, we find that Mr. Fetter moved for an acquittal that solely addressed the charge of having a weapon while under a disability. As Mr. Fetter failed to raise the motion in regard to the involuntary manslaughter charge, he has waived any error regarding the sufficiency of the evidence presented at trial and, consequently, he may not challenge the sufficiency of the evidence on appeal as to this charge.
{¶ 6} We now turn to Mr. Fetter's second assignment of error. "[A] manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, citing State v. Thompkins (1997),
"an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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. Otten (1986),
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
{¶ 7} Mr. Fetter was found guilty of involuntary manslaughter, in violation of R.C.
{¶ 8} Officer Thomas Webber and Officer Donald Hall testified that they responded to a call concerning a shooting that occurred on January 19, 2002. They further testified that when they arrived at the scene of the crime, they discovered Brannon Snyder ("Snyder"), the victim, lying on the ground. Officer Hall stated that he asked Snyder who had shot him, but that Snyder was unable to speak. Officer Hall noted that the injury appeared to be a shotgun wound; particularly, it appeared as though the load punctured Snyder's chest.
{¶ 9} Detective William Hofer testified that he investigated the shooting of Snyder. He indicated that he received a tip regarding the possible location of the weapon, and that he proceeded to that location. Detective Hofer stated that he discovered a Mossberg 12-gauge shotgun, and that in its chamber he recovered a "spent" 12-gauge shell and a live round. He further stated that he spoke with Mr. Fetter, and that Mr. Fetter initially asserted that he was not at the scene of the crime. Detective Hofer asserted that Mr. Fetter also denied shooting Snyder, but that Mr. Fetter admitted that he owned a shotgun. He explained that he spoke with Mr. Fetter on another occasion, and, during this second meeting, Mr. Fetter admitted that he had shot Snyder. Detective Hofer finally stated that Mr. Fetter acknowledged that he had been drinking on the day of the incident; specifically, he had drunk wine and ten beers.
{¶ 10} Officer Matthew Cruise testified that he participated in the investigation of the shooting. He further testified that a garbage can was discovered in the house where the shooting occurred, and that it was filled with beer cans.
{¶ 11} Wayne Lennox ("Lennox") testified that on January 19, 2002, Mr. Fetter had drunk beer. He further testified that later that day Kristi Wise ("Wise"), Mr. Fetter's daughter, and Snyder came to the house. Lennox asserted that Wise and Snyder eventually went upstairs. He indicated that Mr. Fetter started "messing around" with a shotgun, and that Mr. Fetter later said, "I'm gonna mess with [Snyder's] head[.]" He explained that Mr. Fetter then proceeded upstairs with the shotgun. Lennox further explained that he heard a loud "crack," and that Wise stated, "he shot him[.]" He testified that he went upstairs and saw Mr. Fetter holding the shotgun and Snyder lying on the floor in the fetal position.
{¶ 12} Dr. P.S. Sreenivasa Murthy, the Chief Deputy Coroner for Wayne County, testified that Snyder sustained a "very prominent shotgun wound[.]" Dr. Murthy explained that the load caused massive damage to his lungs and ruptured his heart. Dr. Murthy stated that Snyder died as a result of a massive hemorrhage.
{¶ 13} Following the State's witnesses, Mr. Fetter testified. Mr. Fetter stated that he did not know how much he had drunk on January 19, 2002; however, he did state that it was "too much." Mr. Fetter acknowledged that he was drunk, and further explained that the shooting occurred "`[c]ause [he is] a[n] idiot * * * stupid drunk[.]" Finally, Mr. Fetter admitted that he initially denied any involvement in the shooting when he spoke to the police; he did assert that he subsequently informed the police that he had been involved in the shooting.
{¶ 14} After a careful review of the record, we are unable to conclude that the trier of fact lost its way and created a manifest miscarriage of justice when convicting Mr. Fetter of involuntary manslaughter. Consequently, Mr. Fetter's conviction was not against themanifest weight of the evidence. Accordingly, Mr. Fetter's first and second assignments of error are overruled.
{¶ 15} In his third assignment of error, Mr. Fetter avers that the trial court erroneously sentenced him to the maximum term for the violation of having a weapon while under a disability without setting forth the requisite findings, pursuant to R.C.
{¶ 16} On July 3, 2002, the trial court sentenced Mr. Fetter to (1) a four-year term for involuntary manslaughter; (2) a consecutive three-year term for the firearm specification; and (3) a concurrent one-year term for having a weapon while under a disability. The trial court also granted Mr. Fetter a 56-day credit for time spent in custody. As the record does not indicate that his sentence had been stayed, we conclude that Mr. Fetter began serving his sentence. Accordingly, Mr. Fetter has served approximately 15 months of his seven-year sentence.
{¶ 17} An appellant who has completed his sentence may not challenge the length of the sentence imposed unless he also challenges the underlying conviction. State v. Beamon, 11th Dist. No. 2000-L-160,2001-Ohio-8712, citing State v. Blivens (Sept. 30, 1999), 11th Dist. No. 98-L-189. See State v. Barcomb, 8th Dist. No. 80196, 2002-Ohio-4435, at ¶ 8; State v. Moore, 7th Dist. No. 00AP0741, 2002-Ohio-5047; Statev. Howell, 5th Dist. No. 2001CA00346, 2002-Ohio-3947, at ¶ 18. If an appellant has failed to challenge the underlying conviction, the assigned error as to the length of the sentence is moot. Beamon, supra. SeeHowell at ¶ 18. The reason an appellant may not solely challenge the length of the sentence is that "[i]f an individual has already served his sentence, there is no collateral disability or loss of civil rights that can be remedied by a modification of the length of that sentence in the absence of a reversal of the underlying conviction." Id.
{¶ 18} In the instant case, Mr. Fetter was ordered to serve a one-year term for having a weapon while under a disability concurrently with the four-year term for involuntary manslaughter. Mr. Fetter has served approximately 15 months, which exceeds one year; accordingly, we conclude that Mr. Fetter has satisfied his sentence relating to his conviction for having a weapon while under a disability. We note that Mr. Fetter has not challenged the conviction for having a weapon while under a disability. As Mr. Fetter failed to challenge the underlying conviction, he is unable to raise as error the trial court's imposition of the maximum sentence. Consequently, this error is now rendered moot, and Mr. Fetter's third assignment of error is overruled. See Beamon, supra.
{¶ 19} In his fourth assignment of error, Mr. Fetter contends that he was denied effective assistance of counsel, in violation of the United States and Ohio Constitutions, due to his counsel's failure to move for an acquittal pursuant to Crim.R. 29 in regard to the involuntary manslaughter charge. Mr. Fetter's contention lacks merit.
{¶ 20} The United States Supreme Court enunciated a two-part test to determine whether counsel's assistance was ineffective as to justify a reversal of sentence or conviction. Strickland v. Washington (1984),
{¶ 21} Although "it is customary for defense counsel to make a motion for acquittal as a matter of course to test the sufficiency of the state's evidence, the failure to follow that course of action [does] not mean the performance of a defendant's trial counsel fell below a reasonable standard of representation." (Citation omitted.) State v.Scott, 6th Dist. No. S-02-026, 2003-Ohio-2797, at ¶ 21, citing Statev. Jenkins (Mar. 31, 1998), 6th Dist. No. L-97-1303. Despite this custom of raising a motion for acquittal, counsel is not required to raise meritless motions. See State v. Tibbetts (2001),
{¶ 22} Mr. Fetter asserts that his trial counsel should have moved for an acquittal pursuant to Crim.R. 29 on the grounds that the State failed to present sufficient evidence to sustain a conviction for involuntary manslaughter. In resolving Mr. Fetter's second assignment of error, we concluded that his conviction for involuntary manslaughter was not against the weight of the evidence. As "a determination that [a] conviction is supported by the weight of the evidence [is] dispositive of the issue of sufficiency," we find that a motion for acquittal based on insufficient evidence would have been meritless. (Emphasis omitted). SeeState v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462; State v.Murphy, 4th Dist. No. 03CA12, 2003-Ohio-4939, at ¶ 21. Accordingly, the failure of Mr. Fetter's trial counsel to move for acquittal pursuant to Crim.R. 29 did not constitute ineffective assistance of counsel. Consequently, Mr. Fetter's fourth assignment of error is overruled.
Judgment affirmed.
Slaby, P.J., Carr, J. Concur.
