State v. MillerState v. Miller
Michele L. Berry, The Citadel, 114 East 8th Street, Cincinnati, Ohio 45202, for defendant-appellant
OPINION ON RECONSIDERATION
HENDRICKSON, J.
{¶1} This matter is before the court on a timely motion for reconsideration filed by appellant, David B. Miller, pursuant to
{¶2} The test for deciding a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious error in its decision, or raises an issue for consideration which was either not considered at all or was not fully considered by the court when it should have been. Grabill v. Worthington Industries, Inc. (1993), 91 Ohio App.3d 469, 471, quoting Columbus v. Hodge (1987), 37 Ohio App.3d 68, paragraph one of the syllabus. Because appellant calls to our attention an error in Miller I, we hereby grant his motion for reconsideration.
{¶3} In Miller I, we addressed facts relating to a physical altercation between appellant and alleged victims, Joshua Smith and Jeremy Bishop. As a result of the altercation, appellant was charged with one count of assault under Mason Cod. Ord. 537.03(a), providing: No person shall knowingly cause or attempt to cause physical harm to another or to another‘s unborn. During a bench trial, appellant moved for acquittal pursuant to
{¶4} On appeal, appellant argued, in pertinent part: (1) the trial court erred in overruling his
{¶5} It is well-established that a failure to renew a
{¶6} Upon further reflection and additional review of pertinent case law, we conclude these statements were a misstatement of law regarding
{¶7} In Rogers, the Ohio Supreme Court stated the following proposition of law pertaining to bench trials:
{¶8} The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant‘s plea of not guilty serves as a motion for judgment of acquittal and obviates the necessity of renewing a
{¶9} Thus, appellant was not required to renew his
{¶10} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MILLER‘S
{¶11} As appellant requests, this court will review the sufficiency of evidence presented during the state‘s case-in-chief. Appellant argues the trial court erred in denying his
{¶12} A motion for acquittal at the close of the state‘s case tests the sufficiency of the evidence. Pursuant to
{¶13} In its case-in-chief, the state presented the following circumstantial evidence tending to prove appellant assaulted the alleged victims, Joshua Smith and Jeremy Bishop. Abbey Meyer, the front-seat female occupant of the victims’ vehicle, testified that while driving on the highway, the intoxicated occupants of appellant‘s vehicle verbally harassed her and the female driver. Meyer further testified appellant
{¶14} I asked [appellant] about some markings and things that were on his arms and that‘s when we got to talking about the altercation that took place at the intersection. I said who got out of the car? [Appellant] said that he got out of the car and had gone back to the other. He said that he was involved in the fighting, but he said it was mutual combat. * * * I explained that it‘s pretty obvious to me what has happened here. All scratched up and you didn‘t get all scratched up sitting in the driver‘s seat of the car. And [appellant] admitted, yes, I did get out of my car and went back to the car that was behind us and that is when we began to fight.
{¶15} While the evidence against appellant is mainly circumstantial, viewing this evidence in a light most favorable to the state, we conclude a rational trier of fact could find the elements of assault were proved beyond a reasonable doubt. See State v. Barnett, Butler App. No. CA2008-03-069, 2009-Ohio-2196, ¶53 (A conviction based on circumstantial evidence is no less sound than one based on direct evidence[.]). Accordingly, we hold the trial court did not err in overruling appellant‘s
{¶16} Because the state presented sufficient evidence to support appellant‘s assault conviction, his first assignment of error is overruled. Accordingly, appellant‘s assault conviction is affirmed.
YOUNG, P.J., and POWELL, J., concur.