[Cite as State v. Lanier, 2019-Ohio-3568.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellant/
                 Cross-Appellee,                   :
                                                            Nos. 107547, 107548,
                                                            and 107604
                 v.                                :

TERRENCE LANIER, JR., ET AL.                       :

                 Defendants-Appellees/
                 Cross-Appellants.                 :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED, CROSS-APPEAL DISMISSED,
                           AND REMANDED
                 RELEASED AND JOURNALIZED: September 5, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                   Case Nos. CR-17-623176-A and CR-17-623176-B


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel T. Van, Brian D. Kraft, and Maxwell
                 Martin, Assistant Prosecuting Attorneys, for appellant
                 and cross-appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Erika B. Cunliffe and John T. Martin, Assistant Public
                 Defenders; Marein and Bradley, Steven L. Bradley and Cal
                 E. Cumpstone, for appellees and cross-appellants.
LARRY A. JONES, SR., J.:

               In this consolidated appeal, we are called on to consider the trial

court’s rulings on posttrial motions that were rendered after a jury trial. Plaintiff-

appellant the state of Ohio appeals the judgment granting the defendants-appellees

Terrance Lanier (“Lanier”) and Justin Robinson (“Robinson”) a new trial, and

defendants-appellees/cross-appellants appeal the denial of their motion for a post-

verdict judgment of acquittal.1 For the reasons that follow, we affirm the trial court’s

judgment granting the defendants’ motion for a new trial, and we dismiss the

defendants’ cross-appeal.

Procedural and Factual History

               In November 2017, Lanier and Robinson were charged with the

following crimes relative to a shooting that resulted in the death of Tyreese Neal

(“Neal”): Count 1, murder of Neal; Counts 2 and 3, felonious assault of Neal; Count

4, felonious assault of John Doe; and Count 5, discharge of a firearm on or near

prohibited premises. Count 6, which related solely to Robinson, was for having

weapons while under disability. Counts 1 through 5 contained one-, three-, and five-

year firearm specifications.

               The jury trial commenced in May 2018 (except for the having

weapons while under disability count against Robinson, which was tried to the




      1 Lanier filed the motion in the trial court and Robinson joined in the motion at the
hearing. Lanier filed the cross-appeal, and Robinson again joins in on Lanier’s argument.
bench). The following pertinent facts were adduced at trial. The victim, Neal, had

been driving a vehicle in Cleveland, and Lanier and Robinson were passengers in it.

As he was driving, Neal was shot in the head, on his left side, and later died from his

injuries.

               The Cleveland police processed the crime scene. The police found and

retrieved a Kel-Tech model PLR-16 5.56 mm semiautomatic firearm, a cell phone,

15 9 mm cartridge cases, eight .40-caliber cartridge cases, one .223-caliber cartridge

case, one damaged bullet, and two metal fragments. The firearm was swabbed for

DNA (the trigger was not swabbed, however). Analysis of the swab demonstrated

five sources of DNA on the weapon, two of which were Lanier’s and Robinson’s. The

state’s DNA expert testified that there was no way to determine when the

defendants’ DNA got on the weapon. He also testified that the presence of their DNA

did not mean that they fired the weapon.

               The vehicle was also processed. There were seven bullet defects to the

vehicle, and one damaged spent bullet was located inside the vehicle. The defects

on the vehicle suggested that the bullets had been fired into the vehicle, as opposed

to them being fired from inside the vehicle. Only one shot was identified as being

fired from the Kel-Tech weapon; according to the state’s expert, the weapon jammed

after one shot was fired.

               The state’s theory of the case was that Lanier and Robinson (along

with the victim, Neal) were complicit in a “shootout.” Specifically, the state believed

that an individual shot at the subject vehicle, and then Lanier or Robinson fired back
with the Kel-Tech weapon; Count 4 charged the defendants with felonious assault

of this John Doe shooter, and Count 5 was for shooting on or near prohibited

premises. Lanier and Robinson maintained that they were victims of this drive-by

shooting, however.

               After the presentation of the state’s case, the defense made a Crim.R.

29 motion for judgment of acquittal as to all counts. The trial court denied the

motion and the case was submitted to the jury. The jury returned not guilty verdicts

on the murder, felonious assault, and attendant firearm specifications. It found the

defendants guilty of a lesser included offense of Count 5, that is, discharging a

firearm upon or over a public highway, causing a substantial risk of physical harm

to another person or a substantial risk of serious physical harm to property; the jury

also found the defendants guilty of the one- and three-year firearm specifications,

but not guilty of the five-year drive-by shooting firearm specification.1 The court

found Robinson not guilty of Count 6, having weapons while under disability, stating

that it could not “find beyond a reasonable doubt that [Robinson] had carried or

used the firearm in question, that Kel-Tech weapon at the time of the offense.”

               Post-verdict, Lanier filed a motion for a new trial; Robinson joined in

the motion. Lanier also filed a motion for judgment of acquittal based on insufficient

evidence; Robinson joined in on that motion too. The trial court granted the motion

for a new trial, stating that it was doing so on the ground that the conviction was



1The original charge was discharging a firearm upon or over a public road/highway, causing

serious physical harm to Neal.
against the manifest weight of the evidence. The trial court denied the defendants’

motion for a judgment of acquittal.

Assignments of Error

State’s Appeal

      Assignment of Error I: The trial court erred in granting a new trial
      under a manifest weight of the evidence standard because Crim.R. 33
      does not authorize a court to grant a new trial on the basis that the
      conviction was against the manifest weight of the evidence.

      Assignment of Error II: Assuming that the trial court was authorized
      to grant a new trial under Crim.R. 33, the verdict was not contrary to
      law.

Defendants’ Cross-Appeal

      Cross-Assignment of Error I: The trial court erred when it failed to
      enter a post-verdict judgment of acquittal.

Law and Analysis

                 The defendants’ motion for a new trial was made under Crim.R.

33(A)(4), which provides that a new trial in a criminal case may be granted when a

“verdict is not sustained by sufficient evidence or is contrary to law.” Alternatively,

the defendants sought to have the trial court grant a new trial on the ground that the

verdict was against the manifest weight of the evidence. There is no provision in

Crim.R. 33 specifically allowing for a new trial based on manifest weight of the

evidence, but the defendants cited State v. Monroe, 8th Dist. Cuyahoga No. 92291,
2009-Ohio-4994, in which this court upheld the trial court’s judgment granting a

new trial on a manifest-weight-of-the-evidence ground.2

                In this appeal, the state contends that although Crim.R. 33 allows for

a new trial based on lack of sufficient evidence, it does not allow for one on the basis

of the manifest weight of the evidence, and that was the ground on which the trial

court here granted the new trial. The state further contends that the “contrary to

law” language contained in Crim.R. 33(A)(4) “implicates a legal question as opposed

to a factual determination,” and thus, does not support a new trial on a manifest-

weight-of-the-evidence basis. The state contends here that its concession in Monroe

was in error.

                Our review of the record demonstrates that the trial court inartfully

framed its rationale for granting the defendants’ motion for new trial. Specifically,

although the trial court stated that it was granting the motion on the ground that the

verdict was against the manifest weight of the evidence, it really granted the motion

because it found that the evidence was insufficient. The court reasoned as follows:

        [T]here was no evidence, direct evidence, or even circumstantial
       evidence * * * that would put the defendants in possession of the
       weapons that were fired or were firing in that direction. It was
       insufficient evidence, in the Court’s view, to support that jury’s verdict
       as to the lesser included offense simply because there was no evidence
       of the defendants actually shooting a weapon or who they were
       shooting the weapon at, even if they were shooting. So I’m going to * *
       * deny the motion for judgment of acquittal * * *, but I will grant the
       motion for a new trial * * *.”



       2In Monroe, the state conceded at oral argument that a verdict against the manifest

weight of the evidence is contrary to law. Id. at ¶ 29.
              In light of the above, the court’s rationale for granting a new trial was

that the evidence was insufficient, and we need not consider the state’s contention

that the court improperly granted the new trial on a manifest-weight-of-the-

evidence basis.

              In regard to the defendants’ cross-appeal, the denial of a motion for

an acquittal under Crim.R. 29(C) is not a final appealable order. State v. Abboud,

8th Dist. Cuyahoga Nos. 80318 and 80325, 2002-Ohio-4437, ¶ 8; State v. Mitchell,

4th Dist. Gallia No. 16CA12, 2016-Ohio-7674, ¶ 14; State v. Ross, 184 Ohio App.3d

174, 2009-Ohio-3561, 920 N.E.2d 162, ¶ 14 (9th Dist.); State v. Leece, 12th Dist.

Butler No. CA89-06-084, 1990 Ohio App. LEXIS 1557, 5 (Apr. 23, 1990), citing

Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

              In conclusion, the state’s appeal is not well taken, the defendants’

cross-appeal is dismissed, and the trial court’s judgment is affirmed. The case is

remanded to the trial court for a new trial on Count 5.

      It is ordered that costs herein taxed be equally divided.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH
SEPARATE OPINION


SEAN C. GALLAGHER, P.J., CONCURRING WITH SEPARATE OPINION:

               I fully concur with the majority’s decision to affirm. I write separately

solely to highlight the fact that the defendants’ argument — which asserts that the

finding of insufficient evidence under Crim.R. 33(A)(4) must result in an acquittal

as contemplated under Crim.R. 29(C) — would effectively nullify Crim.R. 33(A)(4)

altogether and is based on a claim that Crim.R. 33(A)(4) violates double jeopardy

constitutional principles. See, e.g., State v. Snowden, 11th Dist. Ashtabula No.

2008-A-0014, 2008-Ohio-6554, ¶ 25.            The defendants have not briefed the

constitutional implications of Crim.R. 33(A)(4), which authorizes the trial court to

grant a new trial based on a finding of insufficient evidence, and any such discussion

would be outside the scope of this appeal.

               In this regard, Crim.R. 33(A)(4) expressly authorizes a trial court to

grant a new trial based on insufficient evidence following the return of a guilty

verdict. Thus, it cannot be error for the trial court to act in the manner it did in this

case. If the defendants’ argument were to be accepted, no trial court would ever be
authorized to grant a new trial based on insufficient evidence; the result would

always be an acquittal.       However, it is noteworthy that Crim.R. 29(C) is

discretionary. A court “may” enter a judgment of acquittal based on insufficient

evidence. Although it would be tempting to read the word “may” in the mandatory

sense, the drafters were aware of the difference between “may” and “shall.” In fact,

Crim.R. 29(A) mandates that the trial court “shall” enter a judgment of acquittal if

the court finds that there is insufficient evidence after the close of either side’s case

in chief. The fact that the drafters shifted to a discretionary phrasing in Crim.R.

29(C) cannot be overlooked.

               There may be an answer to the overlap between Crim.R. 29(C) and

33(A)(4) forthcoming. In State v. Ramirez, 09/26/2018 Case Announcements,

2018-Ohio-3867, 108 N.E.3d 82, the Ohio Supreme Court accepted the following

question for review: Crim.R. 33(A)(4) should not be interpreted to provide a remedy

of a “final verdict” instead of a “new trial” because that interpretation requires the

conclusion that the remedy offered is unconstitutional and further precludes

appellate review of any remedy granted pursuant to that provision. In part, the case

hinges on interpreting Crim.R. 29(C) and 33(A)(4) because both rules provide for

review of insufficient evidence but disagree as to the remedy.

               Until the Ohio Supreme Court resolves the disparate remedies

afforded by the rules, courts should adhere to a plain reading of Crim.R. 33(A)(4) —

a trial court is authorized to grant a new trial based on insufficient evidence upon
the defendant’s express request. Regardless, I fully concur with the majority’s

decision.
