The opinion
{¶ 16} I agree with the majority opinion except for its statement that "the weight of the evidence and the credibility of the witnesses is left to the trier of fact * * *." 1
{¶ 17} This statement is derived from an earlier case: State v. DeHass, (1967) 10 Ohio St.2d 230 . I must first note that the Ohio Supreme Court originally qualified the sentence with the word "primarily." Thus in DeHass the sentence read as follows: "In either a criminal or civil case the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." Id. at 231 (emphasis added).
{¶ 18} I also note that in State v. Lynch
(2003), 98 Ohio St.3d 514 at ¶ 89 , and again in the 2004 case of State v. Bryan, 101 Ohio St.3d 272 at ¶ 116, the Supreme Court of Ohio cited the DeHass statement in its analysis of sufficiency of the evidence, not manifest weight of the evidence.
{¶ 19} I further note that DeHass was a 1967 case and the appeal was on a "question of law." In the later case of State v. Thompkins (1997), 78 Ohio St.3d 380 , the Supreme Court of Ohio clearly specified that the reviewing court "weighs the evidence and all reasonable inferences, [and] considers the credibility of witnesses * * *." Id. at 387 . This same authority is similarly enunciated in the more recent case of State v. Issa (2001), 93 Ohio St.3d 49 .
{¶ 20} The authority of Ohio appellate courts to weigh evidence is derived from the Ohio Constitution, Art IV , § 3 (B)( 3 ). The deference accorded the trier of fact under the manifest weight of the evidence standard is quite different from what occurs under a sufficiency of the evidence test.
{¶ 21} In State v. Mattison (1985), 23 Ohio App. 3d 10 , 14 , this court "delineated the following factors as guidelines or considerations " for a reviewing court to take into account when weighing the evidence":
1. that a reviewing court is not required to accept as true the incredible;
2. whether evidence is uncontradicted;
3. whether a witness was impeached;
4. what was not proved;
5. the certainty of the evidence;
6. the reliability of the evidence;
7. whether a witness' testimony is self-serving;
8. whether the evidence is vague, uncertain, conflicting, or fragmentary.
{¶ 22} This list demonstrates the considerable extent to which matters are not "left" to the trial court under the manifest weight standard. The earlier statement from DeHass ,
however, much like a bad penny, keeps turning up in the context of a manifest weight test. I write only to clarify an important qualification ("primarily") and to emphasize DeHass should be limited to a review of sufficiency of the evidence.
1 The majority refers to State v. Wilson, infra, a case in which the trial and reviewing court relied considerably on a videotape which would have provided the reviewing court with an equal opportunity to judge credibility of witnesses.