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State v. Eubanks4/22/1999
ellant learned that his wife had been kissing and fondling another man which caused him to react violently over a short span of time. Appellant contends the evidence does not reflect that he acted with prior calculation and design in killing Lanita Eubanks.
When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. An appellate court will review the evidence to determine if the greater amount of credible evidence offered at trial supports one side of the issue rather than the other. State v. Thompkins (1997), 78 Ohio St.3d 380.
R.C. 2903.01(A) provides that:
No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.
Anyone violating this statute is guilty of aggravated murder. R.C. 2903.01(C). Prior calculation and design is not defined in the Revised Code. The phrase has been interpreted to require proof of more than the few moments of deliberation permitted in common-law interpretations of the former murder statute. A scheme is required which implements the calculated decision to kill. Instantaneous deliberation is not sufficient. State v. Cotton (1978), 56 Ohio St.2d 8. However, neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but momentary deliberation is insufficient. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196. Factors to consider when determining whether the circumstances surrounding a homicide show a scheme designed in furtherance of a calculated decision to kill include (1) whether the accused and the victim knew one another prior to the killing, and, if so, the nature of their relationship, (2) whether the accused gave any thought or preparation to the method or place of the killing, and (3) whether the events occurred over time or almost instantaneously. State v. Jenkins (1976), 48 Ohio App.2d 99, 102. Findings of prior calculation and design have been upheld in some short-lived emotional situations. No bright-line test is possible in determining whether prior calculation and design is present in a case. Each case turns on the particular facts and evidence presented at trial. State v. Taylor (1997), 78 Ohio St.3d 15.
Although appellant asserts the events unfolded rapidly and in response to discovering his wife had been with another man that day, adequate evidence was admitted at trial to support a finding of prior calculation and design. Appellant did not discover Lanita Eubanks' infidelity on the day of the murder. He knew of the situation for well over a week. Even if appellant had first learned of his wife's indiscretions that day, no spontaneous eruption of events occurred. After his wife's two statements to appellant, he left the living room and walked upstairs. There, appellant entered the bedroom, retrieved the rifle from underneath the dresser and removed the weapon from its case. Appellant retur
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