[Cite as Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695.]

WEBBER, APPELLANT, v. KELLY, WARDEN, APPELLEE. 

[Cite as Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695.]

To reverse a judgment of a trial court on the weight of the evidence when the 

judgment results from a trial by jury, all three judges on the court of 

appeals panel must concur — A party is not permitted to take advantage 

of an error that he himself invited — Court of appeals’ judgment 

dismissing habeas corpus petition affirmed.

(No. 2008-1426 ─ Submitted December 17, 2008 ─ Decided 

December 24, 2008.) 

APPEAL from the Court of Appeals for Trumbull County, 

No. 2008-T-0025, 2008-Ohio-3061. 

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Per Curiam.

{¶ 1} This is an appeal from a judgment dismissing a habeas corpus 

petition. Because the petition failed to state a viable habeas corpus claim, we 

affirm. 

Conviction and Appeal

{¶ 2} Following a jury trial, appellant, Danny J. Webber, was convicted 

of felonious assault, assault, and failure to comply with an order of a police 

officer and was sentenced to an aggregate term of 13 years in prison. On appeal, 

the court of appeals affirmed the convictions and sentence. State v. Webber (Aug. 

23, 2000), Medina App. No. CA3001-M, 2000 WL 1197025. In his appeal, 

Webber argued that his conviction was against the manifest weight of the 

evidence. Id. at *5. Although two of the three judges on the appellate panel 

agreed with Webber’s claim insofar as it related to his felonious-assault 

conviction, the court of appeals overruled Webber’s manifest-weight claim and 
SUPREME COURT OF OHIO

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affirmed the judgment of the trial court based on Section 3(B)(3), Article IV of 

the Ohio Constitution (prohibiting reversal of a jury verdict on weight of the 

evidence unless all three appellate judges agree). Id. at *5-7. We denied 

Webber’s subsequent motion for leave to file a delayed appeal from the court of 

appeals judgment. State v. Webber (2001), 91 Ohio St.3d 1512, 746 N.E.2d 614. 

Habeas Corpus Case

{¶ 3} In 2008, Webber filed a petition in the Court of Appeals for 

Trumbull County for a writ of habeas corpus to compel his release from prison. 

Webber claimed that the court of appeals in his previous appeal had erred and that 

only a majority of the panel was required to reverse his felonious-assault 

conviction based on insufficient evidence. Appellee, Trumbull Correctional 

Institution Warden Benny Kelly, filed a motion to dismiss for failure to state a 

claim upon which relief can be granted. The court of appeals granted the 

warden’s motion and dismissed the petition. 

Appeal

{¶ 4} In his appeal as of right, Webber asserts that the court of appeals 

erred in dismissing his petition. Webber claims that his petition stated a viable 

habeas corpus claim because there was insufficient evidence to support his 

conviction for felonious assault and that the court of appeals in his previous 

appeal erred in failing to treat his claim as a sufficiency-of-the-evidence claim and 

in failing to reverse his conviction for felonious assault when a majority of the 

appellate judges on the panel agreed with his assignment of error. 

{¶ 5} For the following reasons, the court of appeals did not err in 

dismissing Webber’s petition. 

{¶ 6} First, the court of appeals in Webber’s previous appeal correctly 

held that under Section 3(B)(3), Article IV of the Ohio Constitution, the court 

could not reverse Webber’s felonious-assault conviction on the weight of the 

evidence without the unanimous consent of all three judges on the panel. “To 
January Term, 2008 

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reverse a judgment of a trial court on the weight of the evidence, when the 

judgment results from a trial by jury, a unanimous concurrence of all three judges 

on the court of appeals panel reviewing the case is required.” State v. Thompkins

(1997), 78 Ohio St.3d 380, 678 N.E.2d 541, paragraph four of the syllabus; see 

also Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 

N.E.2d 1198, ¶ 2. 

{¶ 7} Second, notwithstanding Webber’s claims to the contrary, his 

assignment of error in his previous appeal expressly raised a manifest-weight-ofthe-evidence instead of a sufficiency-of-the-evidence claim. Webber, Medina 

App. No. CA3001-M, 2000 WL 1197025, at *5. Therefore, any error by the court 

of appeals in treating the claim as a manifest-weight claim was invited by 

Webber. “[A] party is not permitted to take advantage of an error that he himself 

invited or induced the court to make.” See Davis v. Wolfe (2001), 92 Ohio St.3d 

549, 552, 751 N.E.2d 1051. 

{¶ 8} Third, in general, “habeas corpus is not available to remedy claims 

concerning * * * the sufficiency of the evidence.” State ex rel. Tarr v. Williams, 

112 Ohio St.3d 51, 2006-Ohio-6368, 857 N.E.2d 1225, ¶ 4. 

{¶ 9} Finally, Webber had an adequate remedy by way of appeal to this 

court from any error committed by the court of appeals in his previous appeal. 

The mere fact that Webber’s attempt to appeal to this court failed when his 

motion for leave to file a delayed appeal was denied does not entitle him to the 

requested extraordinary relief in habeas corpus. Everett v. Eberlin, 114 Ohio 

St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190, ¶ 6. 

{¶ 10} Therefore, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

 MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

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SUPREME COURT OF OHIO

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 Danny J. Webber, pro se. 

 Nancy Hardin Rogers, Attorney General, and Diane Mallory, Assistant 

Attorney General, for appellee. 

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