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State v. Slone6/30/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, Arnold Slone, appeals from the judgment of the Wadsworth Municipal Court. We affirm.
{ } Mr. Slone was charged with driving under the influence , in violation of R.C. 4511.19(A)(1). Mr. Slone pled not guilty to the charge, and the matter proceeded to trial.
{ } A jury found Mr. Slone guilty of the charge. The municipal court sentenced him accordingly. This appeal followed.
{ } Mr. Slone timely appealed, asserting one assignment of error for review.
ASSIGNMENT OF ERROR
"The evidence at trial was insufficient to support [Defendant's] conviction and that conviction was against the manifest weight of the evidence."
{ } In his sole assignment of error, Mr. Slone asserts that his conviction for driving under the influence was not supported by sufficient evidence and was against the manifest weight of the evidence.
{ } We observe, that, contrary to his assertion on appeal, Mr. Slone failed to renew his Crim.R. 29 motion for acquittal after presenting his defense. A defendant waives any error "in the overruling of the motion for judgment of acquittal by failing to renew her motion at the close of all the evidence" unless the case is tried to the bench. State v. Turner (Aug. 23, 2000), 9th Dist. No. 19751, at 3, citing Dayton v. Rogers (1979), 60 Ohio St.2d 162, 163. If a defendant fails to renew his motion for acquittal, he waives his right to rely upon the ruling on such motion, thereby failing to preserve the issue for appeal. Turner, at 3, citing State v. Childress (June 29, 1988), 9th Dist. No. 4320, at 3. Furthermore, "a defendant may not challenge the sufficiency of the evidence on appeal unless he moved for acquittal at trial." Turner, at 3-4, quoting State v. Liggins (Aug. 18, 1999), 9th Dist. No. 19362, at 3; State v. Roe (1989), 41 Ohio St.3d 18, 25.
{ } Mr. Slone not only failed to renew his Crim.R. 29 motion for acquittal after presenting his defense, but also did not move for a judgment of acquittal under Crim.R. 29(C) after the jury returned a guilty verdict. Since Mr. Slone waived any objection under Crim.R. 29 to the sufficiency of the evidence, he may not challenge the sufficiency of the evidence on appeal. See Turner, at 4.
{ } Thus, we proceed to determine solely whether Mr. Slone's conviction for driving under the influence is against the manifest weight of the evidence. When a defendant asserts his 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 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), 33 Ohio App.3d 339, 340.
This discretionary power should only be invoked in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
{ } Mr. Slone argues that the jury could not have found that he was operating the vehicle under the influence of alcohol. We note that in DUI prosecutions, the state is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. State v. Zentner, 9th Dist. No. 02CA0040, 2003-Ohio-2352, at , citing State v. Holland (Dec. 17, 1999), 11th Dist. No. 98-P-0066. "To prove impaired dri
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