An Ohio appeals court should have ordered a new trial for a Cuyahoga County woman charged with assaulting a police officer rather than reduce her conviction to a lesser offense, the Ohio Supreme Court ruled today.

A  Supreme Court majority reversed the disorderly conduct conviction imposed on Sharon Fips by the Eighth District Court of Appeals, after it determined that her assault conviction was “against the manifest weight of the evidence .” Writing for the Court, Justice Patrick F. Fischer stated the long-standing rule in Ohio is that once an appeals court finds a conviction is not supported by the manifest weight of the evidence, the only remedy is a new trial.

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, and Michael P. Donnelly joined Justice Fischer’s opinion. Justice Melody J. Stewart did not participate in the case. As an Eighth District judge at the time, Justice Stewart was on the three-judge panel considering Fips’ case. Tenth District Court of Appeals Judge Lisa L. Sadler sat in for Justice Stewart and joined the majority opinion.

Justice Sharon L. Kennedy concurred in judgment only.

Lower Court Divided on Conviction
Fips was charged in 2016 with assaulting a peace officer, a violation of R.C. 2903.13(A) and R.C. 2903.13(C)(5). She opted for a bench trial, and the judge convicted her of the crime.

Fips appealed to the Eighth District, arguing her conviction was against the manifest weight of the evidence. Rather than order a new trial, the appellate court, in a 2-1 decision, modified the trial court’s judgment and convicted Fips of the lesser included offense of disorderly conduct, a violation of R.C. 2917.11(A)(1). In a dissenting opinion, then-Judge Stewart maintained that reversal of a conviction as being against the manifest weight of the evidence requires a new trial

The Cuyahoga County Prosecutor’s Office requested an en banc review of the decision by all 12 members of the Eight District. The judges were evenly split on the issue.

The prosecutor appealed to the Supreme Court, which agreed to consider the case.

Precedent Favors New Trial
Justice Fischer wrote that deciding this case was made easy by the fact the Court has at least 65 years of precedent suggesting the appropriate remedy was granting Fips a new trial. He noted the Court’s 1955 State v. Robinson decision found that a court of appeals has no power to modify a verdict or finding of guilty that is against the manifest weight of the evidence. The appeals court’s only power is to order a new trial, the Court ruled in Robinson.

The opinion cited Ohio Supreme Court decisions from 1957, 1997, and 2012, which ruled a new trial is required when an appeals court finds the verdict was against the manifest weight of the evidence.

“It is still the rule today,” the opinion stated.

The Court remanded the case to the Cuyahoga County Common Pleas Court for a new trial.

2018-1778. State v. Fips, Slip Opinion No. 2020-Ohio-1449.

View oral argument video of this case.

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