Opinion

State v. Lewis

  • 192 Ohio App. 3d 153
  • 948 N.E.2d 487
Court
Ohio Court of Appeals
Filed
Jan 12, 2011
Status
Published
Author
Delaney
On the bench
Delaney, Edwards, Gwin
Cited by
8 cases
Authority
More cited than 14.6%

The opinion

Delaney, Judge,

concurring separately.

{¶ 59} I agree with the majority’s disposition of appellant’s assignments of error but disagree with the majority’s statement that “[a]ny claim of speculation concerning the risks associated with leaving a two-year-old child unattended” goes to the weight, not the admissibility, of the testimony. Majority opinion at ¶ 27.

{¶ 60} I would find that the issues of relevancy and speculation raised by appellant concerning Sergeant Baker’s and Amy Shenberger’s lay-opinion testimony goes to admissibility, not weight. Evidence that is not relevant is not admissible, Evid.R. 402, and if not wholly speculative, the weight to be given to the evidence is a matter for the trier of fact to determine. Reagans v. Mountainhigh Coach Works, Inc., 2nd Dist. No. 05CA12, 2006-Ohio-423 , 2006 WL 242602 , ¶ 47.

{¶ 61} Appellant adamantly contends that the testimony of Baker and Shenberger was rank speculation because the testimony was framed in terms of “possible” risks, as opposed to a “strong possibility” of risk of harm that may occur. However, each witness’s lay-opinion testimony was based upon firsthand knowledge. Rational inferences were then taken from these facts (i.e., the Walmart parking lot was an unsafe location based upon known criminal activity, the bitterly cold weather exposed the toddler to hypothermia, the half-eaten food posed a choking hazard to the toddler). Individually and collectively, each of these factors could have been found to pose a substantial risk to the toddler.

{¶ 62} Therefore, I concur with my colleagues that the appellant’s conviction is supported by the evidence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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