State v. Shoopman , 2011 Ohio 2340 ( 2011 )

[Cite as State v. Shoopman, 2011-Ohio-2340.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO, CASE NO. 14-10-17
PLAINTIFF-APPELLEE,
v.
JACKIE SHOOPMAN, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 10-CR-0005
Judgment Affirmed
Date of Decision: May 16, 2011
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-10-17
ROGERS, P.J.
{¶1} Defendant-Appellant, Jackie W. Shoopman, Jr., appeals from the
judgment of the Court of Common Pleas of Union County convicting him of
felonious assault and tampering with evidence. On appeal, Shoopman argues that
his conviction was against the manifest weight of the evidence. Based on the
following, we affirm the judgment of the trial court.
{¶2} In January 2010, the Union County Grand Jury indicted Shoopman on
Count One, felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the
second degree, and Count Two, tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree. The indictment arose from an incident
whereby Shoopman was involved in an altercation with the victim and then
discarded the knife that he used to stab the victim. Subsequently, Shoopman
entered a not guilty plea to the charges.
{¶3} In May 2010, the case proceeded to a jury trial. Lucas McClincy was
the State’s first witness. McClincy testified that he was at Little Tony’s Pizza
(“Little Tony’s”) in Union County on the night of February 21, 2009 and the early
morning of February 22, 2009. According to McClincy, Jay Neely (“Neely”) was
at Little Tony’s that night and had prevented a fight between two men. One man
involved in that confrontation then approached Neely; Neely and this individual
went to the back patio and fought. Neely then returned to the inside of Little
Tony’s when a man wearing a rebel hat and a tank top came into Little Tony’s and
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asked the bartender who Jay Neely was, where he was, and if he was the man who
got into a fight with his brother. McClincy identified the man wearing the rebel
hat and tank top as Defendant. McClincy continued to testify that Shoopman went
outside and sat in a car at the corner of the parking lot. About thirty minutes later
McClincy, noticing that Neely was gone, walked outside the door and saw that
Shoopman and Neely were facing each other and arguing, and then went toward
each other. McClincy testified that Shoopman struck Neely in his left shoulder;
that Neely went down to his knee, that Neely never threw a punch; that Neely
came back into Little Tony’s; and, that Shoopman was holding something in his
hand that looked like a knife. When Neely returned to Little Tony’s, McClincy
noticed Neely was bleeding and helped him address the wound, applying pressure
to keep it from bleeding. The police arrived shortly thereafter.
{¶4} On cross examination McClincy testified that he knew Neely because
he saw him once or twice a week for six weeks at Little Tony’s. He testified that
Neely had been drinking the night of February 21, 2009, but did not appear
intoxicated.
{¶5} Doctor Douglas Skura, an orthopedic surgeon, testified that he was
working the night of February 21, 2009 at Memorial Hospital of Union County;
and, that he assessed Neely’s injuries with Dr. Matthew Sanders. Dr. Skura
examined Neely, reviewed x-rays, and treated Neely with exploration and
irrigation of the stab wound, antibiotics, and pain medication. Dr. Skura testified
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that Neely said he had come out of a tavern where two brothers were waiting for
him; one brother punched him in the left temple and the other stabbed him in the
left shoulder with a long-bladed knife. Dr. Skura testified that Neely’s statements
were consistent with his injuries; that the wound was to the deltoid on the outer
cap of the left shoulder, measuring about an inch long and about two and a half
inches deep. Dr. Skura testified that this wound was quite deep, but since it did
not enter the lung or other vital structure, it did not require surgery. Dr. Skura
testified that the wound must have been caused by something sharp and at least
five centimeters long. When shown State’s Exhibit 4, the knife that was found at
the scene with Neely’s blood on it, Dr. Skura testified that it was consistent with
the type of instrument that could have caused Neely’s injury and was capable of
causing death.
{¶6} On redirect examination, Dr. Skura testified that it would have been
very difficult, if not impossible, that Neely’s wound could have been self-inflicted;
Neely was 5’6” and 240 pounds. These dimensions make it almost impossible to
reach across and inflict a two-and-a-half inch deep stab wound. On recross
examination Dr. Skura testified that he did not test whether Neely’s right arm was
able to reach across to his left side.
{¶7} Doctor Matthew Sanders, an emergency physician, testified that he
was working at the Union County Memorial Hospital on February 22, 2009. Dr.
Sanders examined Neely, who presented with a stab wound to his left shoulder.
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When Dr. Sanders saw State’s Exhibit 4, the knife with Neely’s blood on it, he
testified that it was consistent with what would cause the type of injury on Neely,
and that the knife could have caused death.
{¶8} Jay Neely testified that he arrived by himself at Little Tony’s on
February 21, 2009, around eight o’clock in the evening. A fight broke out
between a smaller guy and another man when Neely stepped in between them and
prevented the larger man from hurting the smaller man. The larger man then
started to yell and threaten Neely; Neely and the larger man went out to the back
patio and fought. Neely testified that after the fight, he went back inside; the
bartenders kicked out the other man. Neely testified that as he was leaving out of
the front door and walking to his vehicle, one of two men started yelling threats to
Neely. The man with whom Neely originally fought was slightly behind and to
the right of Neely, and the other man approached in front. Neely identified the
approaching man as Shoopman, who was wearing a tank top and a rebel hat. The
man on Neely’s right punched Neely in the head. When Neely looked up he saw
Shoopman hit him in the shoulder. Neely testified that people were shouting,
“Knife!” Neely looked at Shoopman’s right hand and saw a knife reflecting light
from the light pole. Neely felt something running down his left arm and saw
blood so he walked back into Little Tony’s. People inside Little Tony’s tended to
his wound. Neely testified that he had never seen Shoopman before; that he had
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seen Robert Gray (“Gray”) once or twice before; and, that no one else was
wearing a tank top and a rebel hat that night.
{¶9} On cross examination Neely testified that he arrived at Little Tony’s at
approximately 8:00 P.M. and left Little Tony’s at approximately 1:30 A.M., after
having consumed about six to seven beers. He testified that Gray struck him in the
head first. Neely also testified that he called the police department on the morning
of February 23, 2009, to inquire as to the progress of the investigation. Neely was
informed that the knife had not yet been found. He met the police at Little Tony’s
but by this time the police found the knife. Neely testified that he never saw the
entire knife until going back to Little Tony’s on February 23, 2009.
{¶10} Danielle Clevenger, a bartender at Little Tony’s, testified that she
was working at Little Tony’s on the night of February 21, 2009 and into the early
morning of February 22, 2009; that a fight broke out between Gray and another
man; that Neely tried to break up the fight; that Gray and Neely started fighting on
the back patio; that after the fight, Gray and Neely went back inside; and, that
Gray was disturbing everybody and being belligerent, so she asked Gray to leave.
Clevenger testified that Gray eventually left; that another man came into Little
Tony’s asking who Neely was; that this man was dressed in a tank top and rebel
hat; and, that she was apprehensive of him because he looked like someone who
fought. At the same time, someone saw Gray’s car in the parking lot again.
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{¶11} Clevenger testified that she went out of Little Tony’s, and that Neely
also went out of Little Tony’s. Clevenger approached the side of the building
when she saw Gray and the other man coming out of Gray’s car, heading toward
the front door. Clevenger testified that she tried to go back inside Little Tony’s to
call the police; that Gray tried to stop her from getting back into the building; that
Gray and she had an altercation; that she heard someone say that somebody in the
parking lot had a knife; that Gray then headed back to the parking lot; that she saw
the man who was dressed in the tank top and rebel hat with something in his hand;
and, that she saw Neely stagger backwards, come up, and run for Little Tony’s.
She then identified Shoopman as the man wearing the rebel hat and tank top, who
had something in his hand. Clevenger testified that Neely was bleeding
everywhere; and, that she spent about two hours cleaning up Neely’s blood.
Clevenger testified that she never saw Neely with a weapon; that after the
altercation both Gray and Shoopman ran to Gray’s car and were there when police
arrived; and, that the police arrived and placed Gray in handcuffs and later placed
Shoopman in handcuffs.
{¶12} On cross examination Clevenger testified that she saw two men exit
the car; that she and Gray had pushed and shoved each other when she tried to
reenter Little Tony’s; and, that there were several people in the parking lot. On
redirect examination, Clevenger testified that, as a result of her altercation with
Gray, her foot was shoved under the door so she was shoving him to get her foot
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free. She testified that there was a lot of shouting in the parking lot; that the man
in the parking lot with Neely had a knife; that Gray then took off toward the
parking lot; that she went inside and tended to Neely; and, that shortly thereafter
the police arrived. On recross examination Clevenger testified that she did not
include in her police report the fact that her foot was caught under the door or that
she had seen a knife.
{¶13} Michael Amsbaugh testified that he was at Little Tony’s on the night
of February 21, 2009 and the early morning of February 22, 2009. He testified
that he had stepped outside Little Tony’s and saw a man wearing a tank top
walking across the parking lot to the furthest corner of the parking lot to get in his
car. Before he got into the car he did an overhand motion like he was throwing
something. Amsbaugh testified that he told the police that it looked like the man
threw something across the road; that the man proceeded to get in the car; and, that
he told the police that the man they were looking for was sitting in the car in the
corner of the parking lot. Amsbaugh testified that he did not include in his written
report to the police that the man wearing the tank top appeared to have thrown
something across the road; and, that he did not know any of the individuals
involved in the altercation.
{¶14} On cross examination Amsbaugh testified that he was at Little
Tony’s the night of February 21, 2009 for his younger brother’s twenty-first
birthday party; that he did not remember what time he walked out of the Little
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Tony’s; that he told police officers it looked like the man threw a knife because it
was shining in the lights, like the blade of a knife; that he saw two other men in
the parking lot to his right – one who was stabbed and someone else; that the
person with the knife was walking alone toward his car; that it looked like the man
threw something across the road; that he then went back into Little Tony’s to
address the wound of the man who was stabbed; and, that he did not see the
confrontation in the parking lot.
{¶15} Sergeant Ron Nicol of the Marysville Division of Police testified that
he was working on the night of February 21 and 22, 2009; that he responded to a
call reporting a fight in Little Tony’s parking lot; that when he arrived Officer
John Murray was already on scene and had detained someone in the back of his
cruiser. Sergeant Nicol testified that he walked toward the building where a group
of people were “agitated and hollering” (Trial Transcript, p. 173); that they told
him there was a man inside bleeding because he had been stabbed; that the person
in the car in the corner of the parking lot was involved in the fight; that he went to
the vehicle and the man sitting in the car said he was waiting on his brother as he
was being detained; that he asked the man if he was involved; and, that the man
denied any involvement. Sergeant Nicol testified that he noticed a bat lying on the
floor next to the driver’s seat; that when he asked the man in the car about the bat,
the man responded they brought it for protection because there was trouble at
Little Tony’s. Sergeant Nicol identified the man in the car as Shoopman, who
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asked if he could get out and talk to Officer Murray. Sergeant Nicol then testified
that he continued his investigation by returning to the inside of Little Tony’s
where the witnesses told him that the man he was talking to was the guy that got in
the fight and stabbed Neely; the witnesses identified him as wearing a confederate
baseball cap; that no one else at Little Tony’s had a confederate cap on; that he
then told Officer Murray that that was the suspect and to detain him; and, that he
saw the individual who had been stabbed and took pictures of the wound at the
hospital.
{¶16} On cross examination Sergeant Nicol testified that he did not see any
blood on Shoopman upon his arrival to Little Tony’s.
{¶17} Officer Chris Diehl testified that he was working for the City of
Marysville from midnight until 8:00 A.M. on February 22, 2009; that he
responded to the call regarding the incident at Little Tony’s; that when he arrived
he saw Officer Murray had one man in the back of his cruiser and was talking to
another man who was wearing a tank top and a hat with a confederate flag on it;
that he searched Shoopman’s vehicle and the surrounding area for a knife; that
neither he nor the other officers located a knife that night, but that they did not
search the lot adjoining Little Tony’s; that he found a baseball bat and a box cutter
knife in the car in which Shoopman was sitting; that once he was back at the
police station he took Shoopman’s witness statement; that Shoopman wrote in the
witness statement that the knife was Neely’s; that Neely stabbed himself; that on
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the morning of February 23, 2009, he and Patrolman Murray went back to Little
Tony’s, and searched the front yard of the adjoining lot; that they found a knife;
and, that the knife’s handle had holes in it and was not flat which made it difficult
to search for prints.
{¶18} On cross examination Officer Diehl testified that Shoopman’s
witness statement did not say that Neely stabbed himself but rather, that Neely had
a knife; that he did not see any blood on Shoopman or in his car; that the knife
they did find was halfway opened in a V-shape; and, that he never attempted to get
fingerprints off of the knife.
{¶19} Officer Murray of the Marysville Police testified that he was on duty
the night of February 21 and 22, 2009; that he responded to the call at Little
Tony’s; that he was the first to respond; that when he arrived there was a large
group of people yelling and screaming in front of Little Tony’s; that a person was
standing near the blue vehicle parked in the corner of the parking lot; that another
person was walking in his direction; that people told him that the person who was
walking toward the vehicle was involved in a fight; that somebody had been
stabbed; that he took custody of Gray; that Gray was wearing blue jeans and a
hoodie; that the subject in the corner of the parking lot was wearing a tank top and
a baseball cap with a rebel flag; that the individual was the defendant; that
Shoopman told him that he was involved in a fight with Neely and that Neely had
a knife and attempted to use it on Shoopman, but in the process stabbed himself;
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that Shoopman believed someone took the knife back into Little Tony’s; that they
searched for a knife around the building and the surrounding area but did not find
one; and, that on the morning of February 23, 2009, they found the knife.
{¶20} On cross examination, Officer Murray testified that he looked briefly
inside Little Tony’s for the knife but did not find it; that he did not tape off the
scene; that he searched Shoopman but did not find any knives or blood on him;
that he did not find any blood in the car; that he did not attempt to get fingerprints
off of the knife because doing so would have been difficult as the knife had holes
in it and had been outside all night; and, that the reason he first arrested Gray was
because someone had said he was the one with the knife.
{¶21} The defense called its first witness, Matthew Cook. Cook testified
that he was working at Little Tony’s on the night in question as a server and
bartender; that there was a fight between Gray and Neely on the back patio that
night; that Gray’s brother came into Little Tony’s asking who the fight was
between; that he told the police that Gray’s brother was carrying a knife; that he
was wearing a hoodie with a baseball cap; that he called the police when he
realized there was a fight outside in front of the building; that Neely came back in
Little Tony’s and was bleeding badly; that about five to ten people were in the
parking lot; and, that three people were involved in the altercation.
{¶22} On cross examination, Cook testified that he did not actually see
anybody get stabbed; that in order to call the police he had to return back inside.
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On redirect examination, Cook testified that he told the police that the person with
the knife was wearing a blue hoodie and a camouflage baseball cap.
{¶23} Robert Gray testified that he was at Little Tony’s on the night of
February 21, 2009; that he had an altercation with Neely; that he left and returned
to get his brother because he heard his brother was there to see what had
happened; that when he returned, Neely came around, and Shoopman came
outside; that those two were talking but it did not seem confrontational; that the
police arrived; that his brother did not have a knife that night; that he did not have
any other altercation besides the initial one with Neely; that he was arrested and
then released; and, that Shoopman is left-handed.
{¶24} On cross examination Gray testified that he had been drinking; that
he never had words with a smaller individual; that no one tried to break up an
altercation between him and another individual; and, that he never fought with
Neely on Little Tony’s back patio, but that they went out there to talk. Gray then
recanted and testified that he actually did have an altercation with Neely out back;
that Clevenger and Cook broke it up; that Clevenger did not evict him from Little
Tony’s; that when he left the Little Tony’s he returned home but his brother was
not there; that he returned to Little Tony’s to check on his brother; that he did not
call his brother; that he could not remember how he knew that his brother had
gone to Little Tony’s; that Clevenger was wrong in her testimony that two people
got out of the car because Shoopman was already at Little Tony’s; that Shoopman
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does not drive; that he did not bring Shoopman to Little Tony’s; that Shoopman
must have found a ride to Little Tony’s; that he never saw an altercation between
Shoopman and Neely; that he did not prevent Clevenger from going back in Little
Tony’s to call the police; that he was only talking to Clevenger; and, that
Shoopman came out of Little Tony’s and walked past him. Gray also testified that
in his written statement to the police, that Clevenger was poking him in the chest
and face; and, that he and his brother headed back to his vehicle together.
{¶25} Jackie Shoopman testified that he asked a neighbor for a ride to Little
Tony’s on the night of February 21, 2009, because he received a phone call saying
that men were harassing Gray; that when he went to Little Tony’s to inquire about
the man harassing Gray; that he and Neely exchanged words; that he went to the
bathroom and when he came out Neely was gone; that Gray came back into Little
Tony’s; that he saw Clevenger slap, poke, and yell at Gray; that he went outside
and saw Neely come around the corner; that he walked past Gray to the middle of
the parking lot; that five to seven guys came around the corner with Neely; that
Neely had a knife; that he kicked the knife; that he fought with Neely; that another
guy had a knife and came near, swinging it; that he wrestled with the second guy
with a knife; that he heard sirens and everyone scattered; that he walked over to
Gray’s car; that everyone said that Gray stabbed somebody; that the police
arrested Gray; that another policeman questioned Shoopman and then searched the
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area; that the police released Gray; that he was taken to the police station where he
filled out a report; and, that the police then released him.
{¶26} On cross examination Shoopman testified that Gray’s neighbor gave
him a ride to Little Tony’s on February 22, 2009 at about 1:00 A.M.; that he was
wearing a gray tank top and a rebel hat; that he also had on a long-sleeved shirt but
that he took it off when he got out of Gray’s car because it restricts his movement
when he fights; that Neely threw the first punch; that Neely threw the knife at him
in a swinging motion; that he kicked the knife out of Neely’s hand; that Neely
continued to come at him; that they exchanged a couple of blows; and, that the
other man with the knife approached Neely and tried to swing. Shoopman also
testified that he said nothing to Sergeant Nicol when he questioned him about
what had happened; that although he claims he was the victim, he did not report
anything to the police; that he told the police he believed the knife went back into
Little Tony’s despite the fact that he kicked it out of Neely’s hand. Shoopman
also testified that he has had a prior assault conviction; that he had a domestic
violence charge that was dropped; that he was involved in power boxing and
martial arts; and, that he trains at home with a 100 pound punching bag.
{¶27} In rebuttal, State called Officer Murray who testified that when he
questioned Shoopman upon his arrest, Shoopman stated that Neely stabbed
himself; that Neely started the fight; that Neely had attacked Shoopman; that
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Shoopman never said anything about kicking the knife out of Neely’s hand; and,
that there was no indication of multiple attacks on Shoopman.
{¶28} Thereafter, the defense rested. The jury returned unanimous verdicts
finding Shoopman guilty of felonious assault and tampering with evidence.
Subsequently, the trial court sentenced Shoopman to a six-year prison term on
Count One, and a two year prison term on Count Two, to be served concurrently,
for a total of six-years in prison. The trial court also ordered Shoopman to pay
restitution and imposed post-release control of three-years commencing upon his
release from prison.
{¶29} It is from this judgment that Shoopman appeals, presenting the
following assignment of error for our review.
Assignment of Error No. I
THE JURY LOST ITS WAY WHEN REVIEWING THE
EVIDENCE, RESULTING IN VERDICTS THAT ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND MUST BE REVERSED.
{¶30} Shoopman argues that his convictions were against the manifest
weight of the evidence. Specifically, he contends that the prosecution has not met
its burden to show every element of felonious assault and tampering with evidence
beyond a reasonable doubt due to conflicting evidence and lack of direct evidence.
We disagree.
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{¶31} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-335, quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence
“weighs heavily against the conviction,” should an appellate court overturn the
trial court’s judgment. Id.{¶32} In the present case Shoopman argues that the prosecution did not
meet its burden due to two deficiencies, namely that: 1) there was a lack of direct
evidence to show that Shoopman committed the crimes as no knife or blood was
found on him, and that the knife was not found until twenty-four hours later in an
unsecured crime scene; and 2) there was conflicting evidence that calls every
element of both offenses into question.
{¶33} Felonious Assault
{¶34} Shoopman was indicted on one count of felonious assault under R.C.
2903.11(A)(2), which provides:
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(A) No person shall knowingly do either of the following . . . 2)
Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.
{¶35} It is a well-settled rule of law that direct evidence is not necessary for
the trier of fact to make a finding; circumstantial evidence has the same probative
value.
Direct evidence is “evidence that is based on personal knowledge
or observation and that, if true, proves a fact without inference
or presumption.” Black's Law Dictionary (8 Ed.2004) 596.
Circumstantial evidence is “evidence based on inference and not
on personal knowledge or observation.” Id. at 595. Additionally,
circumstantial evidence has been defined as “the proof of certain
facts and circumstances in a given case, from which the jury
may infer other connected facts which usually and reasonably
follow according to the common experience of mankind.” State v.
Duganitz (1991), 76 Ohio App.3d 363, 367, 601 N.E.2d 642, citing
Black's Law Dictionary (5 Ed.1979) 221.
Direct evidence of a fact is not a prerequisite for a trial court to
make a finding of that fact. See State v. Lott (1990), 51 Ohio St.3d
160, 167, 555 N.E.2d 293; Michalic v. Cleveland Tankers, Inc. .
(1960), 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20. In fact,
circumstantial evidence and direct evidence have the same
probative value, State v. Gillman, 3d Dist. No. 14-08-08, 2008-
Ohio-2606, ¶ 17, and “‘[c]ircumstantial evidence * * * may also
be more certain, satisfying and persuasive than direct
evidence.’” Lott, 51 Ohio St.3d at 167, 555 N.E.2d 293, quoting
Michalic, 364 U.S. at 330. Furthermore, “[w]hen the state relies
on circumstantial evidence to prove an essential element of the
offense charged, there is no need for such evidence to be
irreconcilable with any reasonable theory of innocence in order
to support a conviction.” State v. Williams, 73 Ohio St.3d 153,
165, 652 N.E.2d 721, 1995-Ohio-275 (internal citations omitted).
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State v. Fisher, 3d Dist. No. 02-10-09, 2010-Ohio-5192, ¶26, 27. Therefore, the
lack of direct evidence in this case does not warrant reversal. Several courts of
appeal have affirmed felonious assault cases when there was a lack of direct
evidence. See e.g., State v. Martin, 10th Dist. No. 10AP-295, 2010-Ohio-5968(affirming the conviction for felonious assault although no blood was found in the
apartment where bleeding occurred); State v. Berrien, 12th Dist. No. CA 2005-08-
18, 2006-Ohio-4563 (affirming the conviction for felonious assault although no
blood was found on defendant’s clothing when he was taken into custody and
defendant’s fingerprints were not found on the knife); State v. Talley, 7th Dist. No.
97 CA 72, 1998 WL 811347 (affirming conviction for felonious assault although
no blood or fingerprints were found on the knife); State v. Seymour (1996), 1st
Dist. No. C-960276, 1996 WL 733148 (affirming conviction for felonious assault
although no blood was found on defendant’s clothing).
{¶36} At trial, seven witnesses, including Shoopman himself, testified that
Shoopman was wearing a tank top and a rebel hat on the night in question. These
witnesses also testified that the man involved in the fight with Neely was wearing
a tank top and a rebel hat. Shoopman testified that he went to Little Tony’s to
inquire about the man who got into a fight with his brother and that he took off his
long-sleeved shirt as it restricts him if he is going to fight. Not one witness
testified that anyone else was wearing a tank top on February 21 and 22, 2009.
With the overwhelming amount of evidence that Shoopman had gone to Little
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Tony’s to look for Neely, and that Shoopman was identified as and admitted to
being the one in the fight with Neely, the manifest weight of the evidence showed
that Shoopman was looking for and fought with Neely.
{¶37} Further, the State clearly established that Neely experienced serious
physical harm caused by the knife the police found. Neely’s treating physicians
testified that his wound was a very deep, serious wound that could have caused
life-threatening injuries had it traveled in a different direction. The parties
stipulated that the knife recovered at the scene contained Neely’s blood. Both
expert-physicians testified that the knife in question could have caused Neely’s
wound and that a knife can cause death.
{¶38} There is, however, conflicting testimony regarding who stabbed
Neely. McClincy and Neely testified that, in the fight between Neely and
Shoopman, Shoopman threw the one and only blow; the blow to Neely’s left
shoulder. McClincy, Neely, and Clevenger testified that Neely then fell to the
ground and went immediately inside. Shoopman, however, testified that Neely
had a knife; that he kicked it out of Neely’s hand; that a third unknown person had
a knife and lunged into the tussle and stabbed Neely. There was also evidence that
Shoopman told the police that Neely stabbed himself.
{¶39} The inconsistencies between State’s case and Defendant’s case alone
do not entitle Defendant to a reversal on manifest weight grounds. State v. Raver,
10th Dist. No. 02AP-604, 2003-Ohio-958, ¶21. The trier of fact is in the best
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Case No. 14-10-17
position to take into account inconsistencies, along with the witnesses’ manner and
demeanor, and determine whether the witnesses’ testimony is credible. State v.
Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503. The trier of fact is free to
believe or disbelieve all or any of the testimony. State v. Jackson, 10th Dist. No.
01AP-973, 2002-Ohio-1257, ¶1. Although an appellate court must act as a
“thirteenth juror” when considering whether the manifest weight of the evidence
requires reversal, it must give great deference to the fact finder's determination of
the witnesses' credibility. State v. Covington, 10th Dist. No. 02AP-245, 2002-
Ohio-7037, ¶28. Here, the jury heard all of the evidence, weighed the witness’
credibility, and ultimately convicted Shoopman. The jury was clearly within its
province to weigh the testimony as it found appropriate; this is not the exceptional
case where the jury lost its way. Accordingly, we affirm the conviction for
felonious assault.
{¶40} Tampering with Evidence
{¶41} Shoopman was indicted on one count of tampering with evidence
under R.C. 2921.12(A)(1), which provides:
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following: (1) Alter, destroy,
conceal, or remove any record, document, or thing, with purpose
to impair its value or availability as evidence in such proceeding
or investigation
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{¶42} At trial, Amsbaugh testified that he saw a man in a tank top walk
towards the corner of the parking lot with something shiny in his hand that looked
like a knife. He saw this man make an overhand throwing motion toward the road.
He informed police officers to look across the road. The knife was later found in
the general area toward which the individual in the tank top was facing when he
made the throwing motion. No evidence contradicted this testimony. For the
reasons outlined above, the jury was in the best position to evaluate the evidence.
The guilty verdict was not against the manifest weight of the evidence. We,
therefore, affirm the conviction for tampering with evidence.
{¶43} Accordingly, we overrule Shoopman’s sole assignment of error.
{¶44} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jnc
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