State v. Glagola11/10/2003
entally unfair as a result of defense counsel's failure to request a jury instruction on negligent homicide or the defense of accident.
Appellant's Second Assignment of Error is overruled.
III.
Appellant contends, in her Third Assignment of Error, that her conviction for reckless homicide, with a gun specification, is against the manifest weight and sufficiency of the evidence. We disagree.
On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenkins (1991), 61 Ohio St.3d 259. On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins (1997), 78 Ohio St.3d 380. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. It is based upon this standard that we review appellant's Third Assignment of Error.
In this assignment of error, appellant contends the jury's verdict is against the manifest weight and sufficiency of the evidence because based upon the evidence, the jury should have accepted her version of how the shooting occurred. We have reviewed the record of this matter and conclude the jury's verdict is not against the manifest weight or sufficiency of the evidence.
The following evidence, in the record, supports this conclusion. First, although appellant denied arguing with Benna, Ryan Glagola and Steven Cox both testified that they observed appellant and Benna verbally fighting on the day of the shooting. Tr. Vol. II at 24, 63, 65, 66, 72, 73, 167, 168, 170. Second Michael Short, a criminalist at the Stark County Crime Lab, testified that Benna was at least four and one-half feet from the barrel of the gun when it fired because of the lack of gunshot residue on his clothing. Id. at 142-143, 146, 150-151. Finally, although present in the room when the shooting occurred, Ryan Glagola's version of how the shooting occurred differed from that of appellant's. Ryan explained that appellant went to hand the gun to Benna and she stopped and pulled back to determine whether it was loaded. As she was pulling back, Benna pulled on the other end of the gun and it fired. Id. at 172-173.
The above evidence is legally sufficient to prove that appellant was reckless in her handling of the gun and therefore, is sufficient to support appellant's conviction for reckless homicide.
Appellant's manifest weight argument challenges the jury's decision not to believe appellant's claim that the gun fired as she flipped it while handing it to Benna. Again, the evidence in the record, which includes Michael Short's testimony, Ryan Glagola's testimony and appellant's own statements and behavior supports the conclusion that the shooting did not occur at stated by appellant. The jury did not lose its way in resolving conflicts in the evidence.
Appellant's Third Assignment of Error is overruled.
For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and Edwards, J., concur.
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