[Cite as State v. Wong, 2016-Ohio-96.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.    27486

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
GLENN WONG                                          COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2013 03 0667

                                 DECISION AND JOURNAL ENTRY

Dated: January 13, 2016



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant, Glenn Wong, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}     On the morning of February 24, 2013, Wong stabbed his wife of eleven years,

Tami Wong, 103 times while their two young children watched. The older child called 911, and

multiple officers responded to the family’s home. Upon their arrival, the officers found Wong

lying on top of Tami on the floor of their master bedroom. Both Wong and Tami were covered

in blood, and the police found two knives nearby. Paramedics attempted to treat Tami, but she

ultimately passed away as a result of her extensive injuries. Before she died, Tami told the

paramedics that Wong had attacked her while she was in bed. Wong also spoke to the police and

admitted that he had stabbed his wife. According to Wong, he believed that Tami was having an

affair and was going to divorce him.
                                                    2


        {¶3}    A grand jury indicted Wong on one count of aggravated murder with prior

calculation and design, one count of aggravated felony murder, and one count each of murder,

kidnapping, felonious assault, and domestic violence. Wong filed a notice of his intent to raise

an insanity defense, and three separate sanity evaluations occurred. Two of the evaluators

concluded that Wong was legally sane at the time he allegedly committed the foregoing crimes.

The third evaluator, Dr. John Fabian, concluded that Wong suffered from a delusional disorder at

the time of the alleged offenses, but could not definitively conclude that, due to the disorder,

Wong did not know the wrongfulness of his acts. Accordingly, the State filed a motion in

limine, seeking to preclude Dr. Fabian from testifying as an expert in support of Wong’s insanity

defense. The trial court held a hearing on the State’s motion and ultimately granted it. Because

Wong lacked expert testimony to support an insanity defense, the court precluded him from

presenting that defense at trial.

        {¶4}    A jury found Wong guilty on all counts. The court then determined that all of

Wong’s counts were allied offenses of similar import. Pursuant to the State’s election, the court

merged each of Wong’s separate counts with his aggravated murder count and sentenced him to

life in prison without the possibility of parole.

        {¶5}    Wong now appeals from his convictions and raises four assignments of error for

our review. For ease of analysis, we consolidate two of the assignments of error.

                                                    II.

                                    ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PRECLUDED
        THE TESTIMONY AND REPORT OF DEFENSE EXPERT REGARDING MR.
        WONG’S SANITY IN VIOLATION OF THE DUE PROCESS CLAUSE OF
        THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
        SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
                                                 3


                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
       ERROR WHEN IT PRECLUDED THE TESTIMONY AND REPORT OF
       DEFENSE EXPERT REGARDING MR. WONG’S SANITY RIGHT TO
       PRESENT A DEFENSE CLAUSE OF THE 6TH AMENDMENT TO THE U.S.
       CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO
       CONSTITUTION.

       {¶6}    In his first and second assignments of error, Wong argues that the trial court erred

by not allowing Dr. Fabian to testify in support of his insanity defense. Specifically, he argues

that the court abused its discretion when it precluded Dr. Fabian’s testimony and, in doing so,

deprived him of his right to present a defense. We disagree.

       {¶7}    “The admission or exclusion of expert testimony lies in the sound discretion of

the trial court and will, therefore, not be overturned absent an abuse of that discretion.” State v.

Bekelesky, 9th Dist. Summit No. 24976, 2010-Ohio-2198, ¶ 6. An abuse of discretion is more

than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶8}    The plea of not guilty by reason of insanity “is an affirmative defense that must be

proven by a preponderance of the evidence.” State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-

166, ¶ 17. “The burden of going forward with the evidence of an affirmative defense, and the

burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the

accused.” R.C. 2901.05(A). “A person is ‘not guilty by reason of insanity’ relative to a charge

of an offense only if the person proves, * * * that at the time of the commission of the offense,

the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the

person’s acts.” R.C. 2901.01(A)(14).
                                                 4


       {¶9}    Wong sought to support his insanity plea strictly with the testimony of Dr. John

Fabian. Dr. Fabian conducted a psychological evaluation of Wong and submitted his report to

the court in October 2013. At the hearing on the State’s motion to exclude his testimony, Dr.

Fabian opined within a reasonable degree of psychological certainty that Wong was suffering

from a mental disease or defect at the time he allegedly attacked his wife. Dr. Fabian specified

that Wong had developed a “jealous and persecutory paranoid type” delusional disorder,

stemming from his belief that his wife was having an affair. He could not opine within a

reasonable degree of psychological certainty, however, that the delusional disorder had caused

Wong not to know the wrongfulness of his actions. He explained that Wong’s actions, standing

alone, were strong indicators that he did not know the wrongfulness of his actions when he

attacked his wife. In reaching his conclusion, however, Dr. Fabian testified that he also had to

consider the statements that Wong had made during his evaluation. Dr. Fabian testified that, in

several of those statements, Wong “stated essentially * * * that he was aware of the illegality of

his offenses now and at the time.” Because he was required to base Wong’s assessment on both

his actions and the statements he gave while being evaluated, Dr. Fabian was unable to conclude

that Wong, as a result of his delusional disorder, did not know the wrongfulness of his actions at

the time he committed them.

       {¶10} The trial court noted that, to prove insanity, Wong had to show both (1) that he

suffered from a severe mental disease or defect, and (2) that, as a result of the disease or defect,

he did not know the wrongfulness of his actions at the time he committed them. The court

excluded Dr. Fabian’s testimony on the basis that it did not satisfy the second prong. The court

noted that Dr. Fabian was the only witness that Wong had tendered in support of his insanity plea

and that expert testimony was a threshold requirement to pleading insanity. Because Wong did
                                                  5


not have an expert who was willing to testify that he was legally insane when he attacked his

wife, the court did not allow him to pursue an insanity defense at trial.

       {¶11} Having reviewed the record, we cannot conclude that the trial court abused its

discretion by excluding Dr. Fabian’s testimony. Dr. Fabian readily admitted that he could not

conclude, within a reasonable degree of psychological certainty, that Wong’s delusional disorder

caused him not to know the wrongfulness of his actions. He would not opine that Wong was

legally insane when he attacked his wife, so, at best, his testimony would have been that Wong

was suffering from a mental illness. Diminished capacity, however, is not a recognized defense

in Ohio. State v. Wilcox, 70 Ohio St.2d 182 (1982), paragraph one of the syllabus. “[A]

defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show

that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to

form the specific mental state required for a particular crime or degree of crime.” State v.

Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 69, quoting State v. Cooey, 46 Ohio St.3d 20, 26

(1989). In the absence of other evidence that Wong was legally insane at the time he attacked

his wife, Dr. Fabian’s testimony simply suggested that Wong suffered from a diminished

capacity during the timeframe relevant to this appeal. Thus, Wong’s use of his testimony “would

have had a strong tendency to confuse the issues.” Taylor at ¶ 70. Because Dr. Fabian would

not testify that Wong was legally insane and his testimony was the only evidence upon which

Wong relied in support of his insanity defense, the trial court did not abuse its discretion when it

precluded him from testifying.

       {¶12} Wong also argues that, by not allowing Dr. Fabian to testify, the court deprived

him of his right to present a defense. Yet, “[d]ue process requires only ‘that criminal defendants

be afforded a meaningful opportunity to present a complete defense.’” State v. Hale, 119 Ohio
                                               6


St.3d 118, 2008-Ohio-3426, ¶ 46, quoting California v. Trombetta, 467 U.S. 479, 485 (1984).

“[T]he accused does not have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence.” Hale at ¶ 46, quoting

Taylor v. Illinois, 484 U.S. 400, 410 (1988). Wong never challenged the trial court’s ruling that

he was required to present expert evidence in order to pursue an insanity defense. His only

argument was that Dr. Fabian should have been allowed to testify as an expert. As noted,

however, Dr. Fabian’s testimony would have been confusing to the jury and would have

improperly suggested that Wong had a diminished capacity at the time he attacked his wife. See

State v. Partin, 9th Dist. Summit No. 19819, 2000 WL 960959, *1-2 (July 12, 2000); State v.

McDaniel, 9th Dist. Summit No. 18805, 1998 WL 887184, *3-5 (Dec. 16, 1998). Because his

testimony was inadmissible, the trial court did not offend Wong’s due process rights by

excluding it. See Hale at ¶ 46. Wong’s first and second assignments of error are overruled.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
       STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT
       EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST MR. [WONG]
       IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶13} In his third assignment of error, Wong argues that his convictions for aggravated

murder, aggravated felony murder, and kidnapping are based on insufficient evidence.

Specifically, he argues that there was insufficient evidence that he (1) acted with prior

calculation and design, (2) acted knowingly, or (3) restrained Tami’s liberty. We do not agree

that Wong’s three convictions are based on insufficient evidence.
                                                7


       {¶14} “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679, 2012-Ohio-901, ¶ 7.

       {¶15} R.C. 2903.01(A) defines the offense of aggravated murder by prior calculation

and design. It provides, in relevant part, that “[n]o person shall purposely, and with prior

calculation and design, cause the death of another * * *.” R.C. 2903.01(A). “Regarding prior

calculation and design, the Ohio Supreme Court has held that there is no bright-line test * * *.”

State v. Thomas, 9th Dist. Summit No. 27405, 2015-Ohio-2377, ¶ 12, citing State v. Taylor, 78

Ohio St.3d 15, 20 (1997). Instead, “courts consider the totality of the circumstances in each case

* * *.” State v. Guerra, 9th Dist. Lorain No. 12CA010188, 2013-Ohio-5367, ¶ 6. Relevant

circumstances include: (1) whether “the accused and victim [knew] each other, and if so,

[whether their] relationship [was] strained”; (2) whether the accused gave “thought or

preparation to choosing the murder weapon or murder site”; and (3) whether “the act [was]

drawn out or an almost instantaneous eruption of events.” (Internal quotations and citations

omitted.) Taylor at 19. A jury may find prior calculation and design “based on the protracted

nature of [a] murder.” State v. Allen, 73 Ohio St.3d 626, 632 (1995).
                                                  8


         {¶16} R.C. 2903.01(B) defines the offense of aggravated felony murder. It provides, in

relevant part, that “[n]o person shall purposely cause the death of another * * * while committing

or attempting to commit * * * kidnapping * * *.” R.C. 2903.01(B). As it pertains to this appeal,

the kidnapping statute provides that “[n]o person, by force, threat, or deception, * * * shall * * *

restrain the liberty of the other person, for any of the following purposes: * * * to inflict serious

physical harm on the victim * * *.” R.C. 2905.01(A)(3). “A person acts purposely when it is his

specific intention to cause a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is

his specific intention to engage in conduct of that nature.” Former R.C. 2901.22(A).

         {¶17} Officer Jeremy Vecchio testified that Wong came to the Twinsburg Police

Department on February 9, 2013. While there, Wong inquired about hiring a private investigator

to follow his wife because he thought she was having an affair. Officer Vecchio asked Wong

whether any physical altercations had taken place between him and his wife, but Wong denied

that there had been any.        Consequently, Officer Vecchio advised Wong that the police

department could not help him and suggested that he consult an attorney. Although Officer

Vecchio also suggested to Wong that it might be better to leave the marital residence and avoid a

future confrontation, Wong stated that he “was going to stay and try to work it out with his

wife.”

         {¶18}   Fifteen days later, the Twinsburg Police Department received a 911 call in which

the caller, Wong’s daughter, stated that her father was “murdering [her] mom.” S.W., who was

11 years old at the time of trial, testified that she and her brother were watching television in

their family room while their parents were talking in their bedroom. At some point, Wong

emerged from the first-floor master bedroom, walked into the kitchen, and then returned to the
                                                 9


master bedroom. Shortly thereafter, S.W. heard her mom scream “call 911” and hurried to the

master bedroom to retrieve the cordless phone. She testified that she observed her father on top

of her mother, but that she did not see any blood. While S.W. was on the phone with 911, her

younger brother also came to the door of master bedroom and watched his parents. M.W., who

was nine years old at the time of trial, testified that he saw both of his parents on the floor with

his father on top of his mother. Although neither of the children testified that they saw their

father with a knife, the State also introduced into evidence the 911 call that S.W. made. During

the 911 call, both children screamed that Wong had a knife, and M.W. could be heard screaming

that Wong was “sticking it into her.”

       {¶19} As a result of S.W.’s 911 call, numerous officers were dispatched to the Wong

residence. Officer Patrick Quinn testified that the 911 call came in at 7:06 a.m. and officers

arrived on scene at 7:11 a.m. Upon their arrival, S.W. and M.W. ran out of the house from the

front door. Officer Quinn testified that, after entrusting the children to another officer, he and

three of his fellow officers entered the home.        All four officers testified that they heard

screaming or moaning coming from somewhere inside the house. They followed the sounds to

the master bedroom where they found Tami lying on the floor with Wong lying on top of her.

Officer Brian Steele testified that Tami was face down on the floor and slightly on her left side.

Meanwhile, Wong was on her right side, had his arms around her, and had one of his legs draped

over her legs. Officer Steele testified that he and his colleagues immediately began shouting at

Wong to move off of Tami. Wong slowly slid off of Tami, and the officers were able to

handcuff him. Several of the officers then walked him out to the dining room table and sat him

down so that the paramedics could attend to Tami. Officer Steele testified that Wong was
                                                 10


covered in blood and had numerous cuts on his fingers, but did not appear to be excited and

obeyed all of their commands without incident.

       {¶20} Commander Stephen Bosso was the first emergency medical technician to arrive

at the Wong residence. He testified that, after he assigned a crew to aid Tami, he approached

Wong and asked if he was hurt. Wong denied that he had been hurt or stabbed, and Commander

Bosso confirmed that they only found some lacerations on Wong’s fingers. According to

Commander Bosso, Wong looked directly at him when he answered his questions and appeared

to be lucid. John Knaus, one of the other medics who responded, likewise testified that Wong

appeared calm while receiving treatment at the scene.

       {¶21} The police initially took Wong back to the police station before transporting him

to a local hospital to address the cuts on his hand. Officer Daniel Biada testified that Wong

appeared stoic while at the station and did not display any real emotion. He accompanied Wong

to the hospital and testified that, when the first nurse to attend to Wong asked him what brought

him to the hospital, Wong replied that he “stabbed [his] wife about 7 a.m. this morning.” Wong

likewise admitted that he stabbed his wife when Detective James Scarl came to the hospital and

read him his Miranda rights. Detective Scarl testified that Wong gave straightforward answers

to his questions. According to Detective Scarl, Wong had a worried look on his face during their

conversation, but did not appear to be excited or agitated.

       {¶22} When the police responded to the Wong residence, Tami was still alive. Officer

Eric Sawyer testified that he tried to help Tami while waiting for the paramedics. He stated that

Tami was awake, but was “drenched in blood” and was having difficulty breathing. When he

asked her what had happened, Tami stated that she was in bed when her husband started stabbing

her.
                                                11


       {¶23} Kevin Rott, one of the paramedics who responded to the scene, testified that Tami

was alert and responsive when he first arrived. He stated that Tami had an overwhelming

number of injuries and was struggling to breathe. Although her voice was faint, Tami spoke to

Rott and repeatedly indicated that she “was hurting all over.” When he asked her what had

happened, Tami stated, “I don’t know. He just started to stab me.” Rott testified that Tami went

into full cardiac arrest while being transported to the hospital. Shortly thereafter, she was

pronounced dead.

       {¶24} Daniel Winterich, a special agent/supervisor at the Bureau of Criminal

Investigation, testified that he was dispatched to the Wong residence approximately three hours

after the stabbing to assist with the investigation. Winterich specialized in blood spatter analysis

and examined the bloodstain patterns that he observed in the master bedroom. Additionally, he

documented the layout of the house and dimensions of the rooms. Winterich described the

Wongs’ master bedroom as consisting of the bedroom itself and an attached master bathroom

that contained a sink, bathtub, shower, and a separate water closet with a toilet. He testified that

he discovered blood stains and transfer patterns on the bed in the master bedroom, on the carpet

in that room and leading into the master bathroom, on the doorway and walls leading into the

bathroom, on the walls by the shower, and on the doorknob and walls of the water closet.

Winterich also testified that there were two steak knives in the Wongs’ master bedroom; one in

the bed itself and one on the floor next to the bed. Winterich inspected the Wongs’ kitchen and

determined that two of their steak knives were missing from the butcher block on the counter.

He testified that it was 39 feet one way from the front of the Wongs’ bed to the butcher block in

the kitchen.
                                                12


       {¶25} Dr. George Sterbenz, the Chief Deputy Medical Examiner for the Summit County

Medical Examiner’s Office, performed Tami’s autopsy.            Dr. Sterbenz testified that Tami

sustained at least 103 sharp force injuries. Specifically, she sustained 25 of those injuries to her

head and neck, 19 to her torso, and 59 to her extremities. Dr. Sterbenz testified that there were

30 penetrating injuries to Tami’s hands and wrists alone and that those injuries were consistent

with defensive wounds one would receive from trying to fend off an attacker. Although Tami

received several injuries that could have been fatal by themselves if inflicted earlier on in the

attack, Dr. Sterbenz opined that Tami actually died as a result of blood loss. He testified that

Tami died because “[s]he just lost so much blood over a long period of time from very many stab

wounds.”

       {¶26} Wong argues that his aggravated murder conviction is based on insufficient

evidence because there was no evidence of prior calculation and design. He argues that the

stabbing was “a spur of the moment act,” and not the result of any planning on his part. Yet, a

jury may find prior calculation and design “based on the protracted nature of [a] murder.” Allen,

73 Ohio St.3d at 632. The jury heard evidence that Wong stabbed Tami at least 103 times and

that she died as a result of the enormous amount of blood she lost over an extended period of

time. The jury could have concluded that Wong had time to consider his actions during the

course of the murder and could have stopped stabbing Tami prior to killing her. See id.; State v.

Mount, 9th Dist. Summit No. 26941, 2014-Ohio-5334, ¶ 31 (“[A]s to the element of prior

calculation, * * * Mr. Mount had sufficient time and opportunity to contemplate his actions

during the course of the murder, and could have chosen to stop the strangulation prior to killing

[the victim].”). Moreover, the jury could have concluded that Wong had more than “a few

fleeting moments of deliberation” before stabbing Tami. State v. Hairston, 9th Dist. Lorain No.
                                                13


05CA008768, 2006-Ohio-4925, ¶ 80. The jurors heard testimony that Wong walked 78 feet

roundtrip to retrieve two knives from the kitchen before walking back to the bedroom to stab

Tami. They also heard testimony that his and Tami’s marital relationship was strained because

Wong believed that Tami was having an affair. See Taylor, 78 Ohio St.3d at 19-20. Indeed,

only 15 days before the stabbing Wong went so far as to inquire at the police station about hiring

a private investigator. Viewing all the evidence in a light most favorable to the State, we cannot

conclude that the State failed to meet its burden of production on the element of prior calculation

and design. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. Thus, we reject

Wong’s argument that his aggravated murder conviction is based on insufficient evidence.

       {¶27} Next, Wong argues that there is insufficient evidence to support his conviction for

aggravated felony murder because the State did not prove all the elements of kidnapping, the

predicate offense for that charge. According to Wong, his kidnapping charge required the State

to prove the he acted knowingly and that he restrained Tami’s liberty. He argues that the

evidence tended to show that he acted irrationally, not knowingly. Additionally, he argues that

there was no evidence of restraint because, to the contrary, the blood patterns throughout the

master bedroom and bathroom showed that Tami “was clearly moving about” while he was

attacking her.

       {¶28} Wong’s kidnapping charge did not require the State to prove that he acted

knowingly. The subsection of the kidnapping statute under which he was charged required the

State to prove that he, by force, threat, or deception, restrained Tami’s liberty for the purpose of

inflicting serious physical harm on her. See R.C. 2905.01(A)(3). As noted above, there was

evidence that he walked 78 feet to obtain two knives before stabbing Tami 103 times. The attack

was long and brutal, and Tami suffered an extensive amount of defensive wounds, evidencing
                                                 14


that she tried to fend off Wong for some time while he continued to stab her. Viewing the

evidence in a light most favorable to the State, a rational trier of fact could have concluded that

Wong acted with the specific intention of causing Tami serious physical harm. See Former R.C.

2901.22(A); Jenks at paragraph two of the syllabus. Thus, we do not agree that the State failed

to prove mens rea for purposes of the kidnapping statute.

       {¶29} We also firmly reject the notion that Tami’s unsuccessful attempts to move away

from Wong as he was stabbing her 103 times amounted to evidence that he was not restraining

her liberty. The fact that Tami may have managed to make it into the master bathroom at some

point amidst the savage knife blows that she was enduring does not mean that she was free to

move about. The jury reasonably could have concluded that, by stabbing Tami 103 time, Wong

restrained her liberty. See Jenks at paragraph two of the syllabus. Accordingly, his argument

that his aggravated felony murder conviction is based on insufficient evidence lacks merit.

Wong’s third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       MR. WONG’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF
       THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
       SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶30} In his fourth assignment of error, Wong argues that his convictions for aggravated

murder and kidnapping are against the manifest weight of the evidence. Because Wong has

failed to set forth a weight argument, we reject his fourth assignment of error.

       {¶31} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387.

       In determining whether a criminal 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
                                                 15


       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, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387. Accord Otten at 340.

       {¶32} Although Wong has asserted a manifest weight argument in his captioned

assignment of error, he has not developed such an argument in the body of his brief. His brief

merely asserts that the jury lost its way because “evidence was lacking.” Yet, an assertion that

evidence is lacking sounds in sufficiency rather than weight. See State v. Poland, 9th Dist.

Medina No. 14CA0003-M, 2014-Ohio-5737, ¶ 23-24.                   Wong has not challenged the

persuasiveness of any of the State’s evidence and has not otherwise attempted to explain how the

jury allegedly lost its way. We have already determined that Wong’s aggravated murder and

kidnapping convictions are based on sufficient evidence. “Because [he] has not developed an

argument to support his manifest weight challenge, we decline to conduct a manifest weight

analysis.” State v. Shannon, 9th Dist. Lorain No. 13CA010517, 2015-Ohio-438, ¶ 25, quoting

State v. Auerswald, 9th Dist. Medina No. 11CA0053-M, 2013-Ohio-742, ¶ 50. Accordingly,

Wong’s fourth assignment of error is overruled.
                                                16


                                                III.

       {¶33} Wong’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.
                                          17


APPEARANCES:

LEE A. SCHAFFER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
