third assigned error in Ohio

2016III. {¶49} In the third assigned error, Appellant maintains her convictions are against the manifest weight and sufficiency of the evidence. {¶50} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in 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 orde

2016III. {¶49} In the third assigned error, Appellant maintains her convictions are against the manifest weight and sufficiency of the evidence. {¶50} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in 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 orde

2014Manifest Weight of the Evidence {¶50} In the fourth assigned error, Johnson argues his convictions were against the manifest weight of the evidence, because the victim’s identification was unreliable. {¶51} In State v. Wilson, 113 Ohio St.3d 382 , 2007-Ohio-2202 , 865 N.E.2d 1264 , the Ohio Supreme Court recently addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins, 78 Ohio St.3d 380 , 1997 Ohio 52 , 678 N.E.2d 541 .

2014Manifest Weight of Evidence {¶35} In the third assigned error, Ellis argues his convictions were against the manifest weight of the evidence. {¶36} In State v. Wilson, 113 Ohio St.3d 382 , 2007-Ohio-2202 , 865 N.E.2d 1264 , the Ohio Supreme Court recently addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins, 78 Ohio St.3d 380 , 1997 Ohio 52 , 678 N.E.2d 541 .

2014Manifest Weight of the Evidence {¶50} In the fourth assigned error, Johnson argues his convictions were against the manifest weight of the evidence, because the victim’s identification was unreliable. {¶51} In State v. Wilson, 113 Ohio St.3d 382 , 2007-Ohio-2202 , 865 N.E.2d 1264 , the Ohio Supreme Court recently addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins, 78 Ohio St.3d 380 , 1997 Ohio 52 , 678 N.E.2d 541 .

2014Manifest Weight of Evidence {¶35} In the third assigned error, Ellis argues his convictions were against the manifest weight of the evidence. {¶36} In State v. Wilson, 113 Ohio St.3d 382 , 2007-Ohio-2202 , 865 N.E.2d 1264 , the Ohio Supreme Court recently addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins, 78 Ohio St.3d 380 , 1997 Ohio 52 , 678 N.E.2d 541 .

2014“When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at 387 , 678 N.E.2d 541 , citing Tibbs v. Florida, 457 U.S. 31, 42 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 (1982). {¶52} As discussed in the third assigned error, Johnson failed to demonstrate that the identification procedure was unduly suggestive.

2014“When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at 387 , 678 N.E.2d 541 , citing Tibbs v. Florida, 457 U.S. 31, 42 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 (1982). {¶52} As discussed in the third assigned error, Johnson failed to demonstrate that the identification procedure was unduly suggestive.

2014Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989).

2014Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989).

2018We do not find that this is the “‘exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins at 387 , quoting State v. Martin, 20 Ohio App.3d 172, 175 , 485 N.E.2d 717 (1st Dist.1983). {¶30} The third assigned error is overruled.

2018We do not find that this is the “‘exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins at 387 , quoting State v. Martin, 20 Ohio App.3d 172, 175 , 485 N.E.2d 717 (1st Dist.1983). {¶30} The third assigned error is overruled.

2012State v. Ford, 128 Ohio St.3d 398 , 2011-Ohio-765 , 945 N.E.2d 498 , ¶19 (“Penalties for a specification and its predicate offense do not merge under R.C. 2941.25”). {¶ 45} Accordingly, the third assigned error is well taken. {¶ 46} The fourth assigned error states: The trial court committed error in failing to specify whether the sentence on count six was to be served consecutively or concurrently. {¶ 47} Swiergosz attempts to base error on a verbal misstatement by the court during sentencing.

2012State v. Ford, 128 Ohio St.3d 398 , 2011-Ohio-765 , 945 N.E.2d 498 , ¶19 (“Penalties for a specification and its predicate offense do not merge under R.C. 2941.25”). {¶ 45} Accordingly, the third assigned error is well taken. {¶ 46} The fourth assigned error states: The trial court committed error in failing to specify whether the sentence on count six was to be served consecutively or concurrently. {¶ 47} Swiergosz attempts to base error on a verbal misstatement by the court during sentencing.

2022Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 66 .

2020Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 181 , 546 N.E.2d 206 (1989).

2020Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 181 , 546 N.E.2d 206 (1989).

2019Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12 . {¶54} The third assigned error is without merit.

2018Sentence {¶37} In the third assigned error, Strowder also argues that his sentence violates the constitutional prohibition against cruel and unusual punishment because it stems from his activities, as a juvenile, on a single night. {¶38} In Graham v. Florida, 560 U.S. 48 , 130 S.Ct. 2011 , 176 L.Ed.2d 825 (2010), the United States Supreme Court held that sentences of life imprisonment without parole for juvenile nonhomicide offenders constitutes cruel and unusual punishment, in light of the lack of maturity of juvenile offenders, the limited moral culpability of juvenile offenders who do not k

2018Sentence {¶37} In the third assigned error, Strowder also argues that his sentence violates the constitutional prohibition against cruel and unusual punishment because it stems from his activities, as a juvenile, on a single night. {¶38} In Graham v. Florida, 560 U.S. 48 , 130 S.Ct. 2011 , 176 L.Ed.2d 825 (2010), the United States Supreme Court held that sentences of life imprisonment without parole for juvenile nonhomicide offenders constitutes cruel and unusual punishment, in light of the lack of maturity of juvenile offenders, the limited moral culpability of juvenile offenders who do not k

2018Id. {¶57} The third assigned error is without merit, and the trial court’s judgment is affirmed.

2018Id. at 74 . {¶39} In State v. Moore, 149 Ohio St.3d 557 , 2016-Ohio-8288 , 76 N.E.3d 1127 , the Ohio Supreme Court held that Graham also prohibits the “functional equivalent” of life without parole for juvenile nonhomicide offenders and therefore prohibits aggregate term-of-years sentences for multiple nonhomicide convictions that exceed the defendant’s life expectancy.

2018Id. at 74 . {¶39} In State v. Moore, 149 Ohio St.3d 557 , 2016-Ohio-8288 , 76 N.E.3d 1127 , the Ohio Supreme Court held that Graham also prohibits the “functional equivalent” of life without parole for juvenile nonhomicide offenders and therefore prohibits aggregate term-of-years sentences for multiple nonhomicide convictions that exceed the defendant’s life expectancy.

2018Cuyahoga No. 103695, 2017-Ohio-11, ¶ 21 . {¶37} The third assigned error lacks merit. 2.

2017Batson Claim {¶ 30} In the third assigned error, Lewis asserts that the trial court erred in accepting the state's rationale for using a peremptory challenge to dismiss an African-American jury panel member. {¶ 31} In Batson v. Kentucky , 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the United States Supreme Court held that purposeful discrimination in the use of peremptory challenges to exclude members of a minority group violates the Equal Protection Clause of the United States Constitution.

2017Batson Claim {¶ 30} In the third assigned error, Lewis asserts that the trial court erred in accepting the state's rationale for using a peremptory challenge to dismiss an African-American jury panel member. {¶ 31} In Batson v. Kentucky , 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the United States Supreme Court held that purposeful discrimination in the use of peremptory challenges to exclude members of a minority group violates the Equal Protection Clause of the United States Constitution.

2017Assignment of Error No. III {¶ 22} In the third assigned error, appellant argues he received ineffective assistance of trial counsel where counsel failed to object to appellant’s bindover as unconstitutional, and failed to object to the lack of subject-matter jurisdiction in the common pleas court. {¶ 23} In evaluating ineffective assistance of counsel claims, the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71 , 341 N.E.2d 304 (1976), paragraph four of the syllabus; see also Strickland v. Wa

2017Assignment of Error No. III {¶ 22} In the third assigned error, appellant argues he received ineffective assistance of trial counsel where counsel failed to object to appellant’s bindover as unconstitutional, and failed to object to the lack of subject-matter jurisdiction in the common pleas court. {¶ 23} In evaluating ineffective assistance of counsel claims, the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71 , 341 N.E.2d 304 (1976), paragraph four of the syllabus; see also Strickland v. Wa

2017Cuyahoga No. 96986, 2012-Ohio-1345, ¶ 23 . {¶40} In accordance with the foregoing, this portion of the third assigned error is without merit. {¶41} The third assigned error is without merit. 4.

2014Our inquiry is guided by concern for “the fairness of the trial, not the culpability of the prosecutor.” Id., quoting Smith v. Phillips, 455 U.S. 209, 219 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). {¶59} Johnson first asserts that the prosecutor incorrectly stated that Detective Bellanca followed Cleveland Police Department protocol when presenting the photo arrays, despite Detective Bellanca’s failure to use the “folder system.” In our resolution of the third assigned error, we pointed out that R.C. 2933.83 does not require the use of the “folder system” but, rather, the “folder system” is one s

2014Our inquiry is guided by concern for “the fairness of the trial, not the culpability of the prosecutor.” Id., quoting Smith v. Phillips, 455 U.S. 209, 219 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). {¶59} Johnson first asserts that the prosecutor incorrectly stated that Detective Bellanca followed Cleveland Police Department protocol when presenting the photo arrays, despite Detective Bellanca’s failure to use the “folder system.” In our resolution of the third assigned error, we pointed out that R.C. 2933.83 does not require the use of the “folder system” but, rather, the “folder system” is one s

2014Dobson cites State v. Williams, 79 Ohio St.3d 459 , 1997-Ohio-79 , 683 N.E.2d 1126 , paragraph two of the syllabus, for the proposition that the state had to prove the essential elements of “cohabitation” namely: (1) sharing of familial or financial responsibilities, and (2) consortium.

2014Dobson cites State v. Williams, 79 Ohio St.3d 459 , 1997-Ohio-79 , 683 N.E.2d 1126 , paragraph two of the syllabus, for the proposition that the state had to prove the essential elements of “cohabitation” namely: (1) sharing of familial or financial responsibilities, and (2) consortium.

2014Dobson cites State v. Williams, 79 Ohio St.3d 459 , 1997-Ohio-79 , 683 N.E.2d 1126 , paragraph two of the syllabus, for the proposition that the state had to prove the essential elements of “cohabitation” namely: (1) sharing of familial or financial responsibilities, and (2) consortium.

2013Baiko v. Mays, 140 Ohio App.3d 1 , 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 , 506 N.E.2d 212 (1987); N.E.

2013Baiko v. Mays, 140 Ohio App.3d 1 , 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 , 506 N.E.2d 212 (1987); N.E.

2013Baiko v. Mays, 140 Ohio App.3d 1 , 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 , 506 N.E.2d 212 (1987); N.E.

2013Co., 2013-Ohio-5460 .] “THE TRIAL COURT ERRED IN FAILING TO FIND THAT CERTAIN ACTIONS TAKEN BY THE SUPPLIER INVOLVING THE CONTRACTS PRESENTED TO THE CONSUMER VIOLATE THE OHIO CONSUMER SALES PRACTICES ACT AND THE HOME SALES SOLICITATION ACT.” “I.

2013Baiko v. Mays, 140 Ohio App.3d 1 , 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 , 506 N.E.2d 212 (1987); N.E.

2012No. 96680, 2012-Ohio-266 , quoting State v. Apanovitch, 33 Ohio St.3d 19, 25 , 514 N.E.2d 394 (1987).

2012No. 96680, 2012-Ohio-266 , quoting State v. Apanovitch, 33 Ohio St.3d 19, 25 , 514 N.E.2d 394 (1987).

2012No. 96680, 2012-Ohio-266 , quoting State v. Apanovitch, 33 Ohio St.3d 19, 25 , 514 N.E.2d 394 (1987).