Waiver and a 29(A) motion
So my buddy Paul tells me that his buddy Jaye tells him that you have to file a Rule 29(C) motion for acquittal if you want to argue insufficiency of the evidence on appeal.
Wow, do I know how to write a lede, or what?
Crim R 29 is a motion for acquittal. Rule 29(A) allows a defendant to ask the judge to throw out the State's case, or part of it, at the close of the State's case and at the close of all the evidence. Rule 29(C) provides for a post-verdict motion for acquittal. It's rarely done, and even more rarely granted.
I'd never seen anything like what Jay said, but a couple of days later I got an email from him, telling me to look up State v. Harris. Sure enough, there it is in Paragraph 11:
Where a case is tried to a jury, failure to renew the motion to acquit within the time period fixed by Crim.R. 29(C) constitutes a waiver of any errors which relate to or stem from the decision to overrule the motion. Thus, this failure constitutes waiver on any issue relating to the sufficiency of the evidence.
It cites four cases to support that proposition.
None of them have anything to do with Rule 29(C). The first says you don't have to renew a 29(A) motion at the close of all the evidence in a bench trial. The second says a defendant waived a sufficiency argument because he did not renew the 29(A) motion at the close the evidence. The third says that failure to renew the motion at the close of the evidence was cured by filing a 29(C) motion. The fourth is a civil case, and deals with the renewal of a motion for directed verdict at -- you guessed it -- the close of all the evidence.
Citing four cases for a proposition when the four cases don't have anything to do with your proposition is not exactly stellar legal scholarship. So, no, you don't need to file a 29(C) to preserve a sufficiency argument on appeal. You've preserved it as long as you make your Rule 29(A) motion at the close of all the evidence.
Well, no, you don't even have to do that. You don't have to renew the motion if the defense doesn't put on any evidence; a motion at the close of the State's case will suffice. And there are a bunch of cases, like this one and this one and this one, that say you don't need to make a 29(A) motion at all; a not guilty plea preserves the right to argue insufficiency on appeal. (As this case notes, there are two Supreme Court cases which seem to suggest this.)
And, as this case holds, even if the defense fails to make a 29(A) motion at all, that doesn't mean the insufficiency argument is waived, it just means that the argument is reviewed under a plain error standard. While that ordinarily presents a problem on appeal because of the requirement that the error result in a manifest injustice, convicting someone on legally insufficient evidence is pretty much the paradigmatic example of manifest injustice.
That's not to say that you shouldn't make the motion. As a wise man once said, "You never know." The judge might just grant the damned thing.
One motion you do need to renew is the motion to sever. I learned this the hard way. I had an appeal a while back where the defendant was charged in two separate cases: felonious assault in one, for trying to run over some people in a parking lot, and domestic violence in another, for beating up his girlfriend a month later. On the day of trial, the prosecutor announced that they'd try the felonious assault case first. Not so, said the judge, we'll try them together.
And so they did. I handled the appeal, and argued improper joinder. While the panel stated that it was "at a loss to see how the trial court could have found the offenses underlying these two indictments similar in character so as to justify their joinder," it affirmed, concluding that trial counsel's failure to renew the motion to sever at the close of the State's case and of all the evidence waived the argument. There are boatloads of cases to the same effect.
This didn't make any sense to me. The purpose of any objection -- and a renewal of a motion is the functional equivalent of that -- is to call the attention of the judge to a potential error, and allow her to correct it. But what's the point of renewing a motion to sever when the State rests? The whole purpose of the motion to sever is to keep the jury from hearing evidence on an unrelated matter. What's a trial court going to do at that juncture? Tell the jury to forget what it heard about the other case? The only remedy at that point is to grant a whole new trial.
I did some digging on this later on, and found that this appears to be one of those rules that courts always cite without ever giving any explanation of why it exists. In fact, if you trace it back far enough, you'll find that the earlier Ohio court decisions on this are based on Federal court decisions. But there's a hitch: most of those Federal decisions involve cases of severance of defendants, not charges.
That makes sense. If a judge determines at the close of the State's case that a defendant was improperly joined, she can dismiss that defendant and allow the trial to proceed against the remaining defendants.
Requiring the renewal of a motion to sever cases doesn't make sense. I'm sure if you're handling an appeal where the attorney didn't renew the motion, and cut and paste this post into your brief, appellate courts will see the light, and we'll have changed the law for the better.
Fight the Power.
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