stating in the syllabus that "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal"
How later courts described this case
- stating in the syllabus that "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal"
- holding that defendant’s failure to raise the constitutionality of a statute at the trial court level waived such issue on appeal
- stating that “[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact”
- stating that an appellate court may not substitute its own judgment for that of the finder of fact when dealing with credibility
Written by the judges who cited it.
Later courts went against this
Limited by In re M.D., 38 Ohio St. 3d 149 (1988)
22 Ohio St.3d 120, 122 (1986), limited by, In re M.D., 38 Ohio St.3d 149
The opinion
Celebrezze, C.J.,
concurring. I concur in today’s result as well as the essence of the majority’s reasoning. I fear, however, that the syllabus could be read to imply that a challenge to the constitutionality of a criminal statute, raised for the first time on appeal, need not ever be considered by a reviewing court. Obviously, such a broad construction would not comport with Crim. R. 52(B) or past judicial pronouncements. E.g., Columbus v. Rogers (1975), 41 Ohio St. 2d 161, 162-163 [ 70 O.O.2d 308 ].
Accordingly, I would have added the following caveat to the end of the syllabus paragraph in the case sub judice: “* * * unless the statute in question is obviously invalid and would change the outcome of the trial in which case the reviewing court may apply the plain error exception in order to prevent a manifest miscarriage of justice.” Accord State v. Craft (1977), 52 Ohio App. 2d 1, 7 [ 6 O.O.3d 1 ], See, also, Evid. R. 103(D).
It must be recognized that while we are rejecting the proposition advanced by the appellate court in Lakewood v. All Structures, Inc. (1983), 13 Ohio App. 3d 115 , which held at 116 that “* * * a claim of unconstitutionality of legislation is never waived,” neither are we adopting a position at the other extreme that a constitutional issue first raised on appeal must never be considered.
Wright, J., concurs in the foregoing concurring opinion.