In re K.S. ( 2011 )

[Cite as In re K.S., 2011-Ohio-4511.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96398
IN RE: K.S.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Juvenile Division of
Cuyahoga County Court of Common Pleas
Case No. DL 10117412
BEFORE: Blackmon, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio State Public Defender
By: Sheryl A. Trzaska
Ohio State Assistant Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Justin Seabury Gould
Assistant County Prosecutor
2210 Cedar Avenue, 3rd Floor
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant K.S.1 appeals the juvenile court’s judgment finding him
delinquent for committing one count of felonious assault with one-and
three-year firearm specifications. He assigns the following error for our review:
“[K.S.’s] adjudications for felonious assault and the
corresponding firearm specifications were against the
manifest weight of the evidence, in violation of [K.S.’s]
right to due process of law under the Fifth and Fourteenth
Amendments to the United States Constitution, and
Section 10, Article 1 of the Ohio Constitution.”
{¶ 2} Having reviewed the facts and relevant law, we affirm the trial
court’s decision. The apposite facts follow.
Facts
{¶ 3} On September 16, 2010, a crowd of teenagers were fighting in front
of the home of Edna Hamilton (“Edna”). Edna’s adult son, Wayne Hamilton
(“Wayne”), attempted to break up the fight and disperse the crowd. 14-year
old K.S. was part of the crowd as was his brother C.S. C.S. was pulling on
Wayne’s niece, so Wayne pulled C.S. off of her. Wayne claims he then fell on
top of C.S., slamming him to the ground.
{¶ 4} While Wayne was on the ground, another teenager hit him on the
back of the head with what felt like a pistol. Wayne got up and asked “who
the F hit me?” He was bleeding badly and went inside his mother’s home.
1
We refer to the non-adult parties in this case by their initials pursuant to this
court’s policy of not revealing the identity of juvenile defendants as well as other
non-adult parties.
He took off his T-shirt and held it to his head and returned outside to tell the
crowd to go home. He observed C.S. and K.S. talking and heard C.S. say
something about his earring. Then K.S. approached Wayne and said, “I don’t
know you big dude.” Wayne told K.S. to go home. He then felt something hit
him in the face below his right eye. After he was hit, he saw K.S. shoot his
gun three or four times in the air. The hit to his eye fractured his orbital
bone, requiring surgery.
{¶ 5} Wayne’s mother, Edna, also testified that Wayne fell on top of C.S.
She observed another teenager hit her son in the back of the head. She could
not see what was used. She stated that about ten minutes later, she observed
K.S. walking from the direction of his house. He shot a gun in the air twice
and asked, “Who wants some of me?” She then observed C.S. and K.S. talking
and heard C.S. state, “Who was that big nigger that slammed me on the
ground? He slammed me for no reason.” She also heard C.S. complain that
one of his earrings was broken.
{¶ 6} K.S. then approached Wayne and Edna heard him say, “Did you
jump my brother?” Wayne tried to explain that it was an accident. Edna
said K.S. appeared to walk away, but he then turned and said, “F you” and hit
her son just below his right eye with a black gun and ran from the scene.
{¶ 7} Officer Thelemon Powell responded to the radio broadcast that a
male was assaulted. When he got to the scene, there was a large crowd of
people, and EMS was attending to Wayne. Wayne told him he was trying to
break up the fight and was struck with a pistol. He was not able to provide
him with the name of his assailant but gave the officer a description. Other
people provided the officer with the assailant’s name and pointed to the house
where he lived. The officer proceeded to the home, but no one responded.
The officer retrieved three to five shell casings in the area around the home.
{¶ 8} In K.S.’s defense, P.P. testified that she, her mother, and K.S. were
all standing on the curb watching the fight. She did not see Wayne get hit
and did not see who shot the gun. When the shots were fired, she and her
mother ran away from the scene. K.S. stayed behind. P.P.’s mother advised
him to stay away from the fight.
{¶ 9} K.S.’s mother testified that she saw Wayne grab C.S. and slam him
to the ground. She did not see Wayne get assaulted. She stated that,
although the fight started in front of Edna’s home, the fight moved a few
houses down as it progressed. When she heard the shots fired, K.S. was not
with her. She stated that K.S. was arrested the next day at another fight.
{¶ 10} The trial court found K.S. to be delinquent and committed K.S. to
the Ohio Department of Youth Services for one year for the felonious assault
offense and one year for the firearm specifications, to be served consecutively,
and not to exceed his twenty-first birthday.
Manifest Weight of the Evidence
{¶ 11} In his sole assigned error, K.S. argues his conviction was against
the manifest weight of the evidence.
{¶ 12} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a
criminal manifest weight challenge, as follows:
“The criminal manifest-weight-of-the-evidence standard
was explained in State v. Thompkins (1997), 78 Ohio St.3d
380, 678 N.E.2d 541. In Thompkins, the court distinguished
between sufficiency of the evidence and manifest weight
of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of
adequacy as to whether the evidence is legally sufficient to
support a verdict as a matter of law, but weight of the
evidence addresses the evidence’s effect of inducing belief.
Id. at 386–387, 678 N.E.2d 541. In other words, a reviewing
court asks whose evidence is more persuasive—the state’s
or the defendant’s? We went on to hold that although there
may be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees
with the factfinder’s resolution of the conflicting
testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida
(1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.”
{¶ 13} An appellate court may not merely substitute its view for that of
the jury, but must find that “in resolving conflicts in the evidence, the jury
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
(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. Accordingly, reversal on
manifest weight grounds is reserved for “the exceptional case in which the
evidence weighs heavily against the conviction.” Id.{¶ 14} In the instant case, Edna Hamilton was the only person to testify
that she saw K.S. hit Wayne with the gun. K.S. argues her testimony is not
credible because it conflicts with Wayne’s and the defense witnesses’
testimony. We conclude the trial court did not lose its way in resolving the
alleged conflicting evidence.
{¶ 15} Although Wayne’s and Edna’s testimony differed regarding what
K.S. said to Wayne prior to hitting him, the substance of their testimony was
the same. That is, K.S. confronted Wayne for slamming his brother to the
ground. Both Wayne and Edna also testified that C.S. complained to K.S.
about his earring being broken. Wayne did not hear K.S. say “F you” prior to
K.S. hitting him with the gun; however, this is not surprising since Wayne’s
attention was elsewhere as he did not see K.S. hit him. Moreover, Edna
stated that it appeared that K.S. was going to walk away; therefore, it would
be reasonable for Wayne to have focused elsewhere believing the confrontation
was over.
{¶ 16} While Wayne’s and Edna’s testimony regarding when the
gunshots were fired also differed, both agreed that K.S. was not aiming at
anyone when he fired the shots. Wayne testified that K.S. fired the gun
several times in the air after he was hit, and Edna testified that K.S. fired the
gun before hitting Wayne. The fact that Wayne’s recollection of the timing
of the shooting differed from Edna’s is not critical to Edna’s credibility,
especially because Wayne was suffering from a head injury at the time.
{¶ 17} Moreover, the officer’s finding the shell casings near K.S.’s home
supports Edna’s testimony that K.S. shot his gun in the air several times while
walking from the direction of his home. K.S.’s mother also testified that
although the fight started in front of Edna’s house, it progressed down the
street, which would correlate with the shells being found further from Edna’s
house.
{¶ 18} K.S. also argues Edna’s and Wayne’s testimony is suspect given
the fact that his family had been fighting with their family for months;
however, there is nothing in the evidence to support this allegation. K.S.’s
mother testified that the fighting had been going on all summer, but she did
not clarify who was fighting.
{¶ 19} Finally, none of K.S.’s witnesses testified to observing the attack
on Wayne. Also, although they testified that K.S. was with them watching
the fight, once the shots were fired, no one could testify to where K.S. went.
P.P. testified that she and her mother fled after the shots, but that K.S. stayed
behind.
{¶ 20} Based on the evidence presented, we conclude the trial court did
not lose its way in resolving the conflicting evidence and concluding that K.S.
was delinquent. A defendant is not entitled to a reversal on manifest weight
grounds merely because inconsistent evidence was presented at trial. A jury,
as finder of fact, may believe all, part, or none of a witness’s testimony. State
v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096; State v. Hairston (1989),
63 Ohio App.3d 58, 577 N.E.2d 1144; State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d
548. The rationale is that the trier of fact is in the best position to take into
account inconsistencies, along with the witnesses’ manner and demeanor, and
determine whether the witnesses’ testimonies are credible. See Seasons Coal
Co. v. Cleveland (1994), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; State v. DeHass (1967), 10
Ohio St.2d 230, 231, 227 N.E.2d 212. Thus, the trial court could choose to believe
Wayne’s, Edna’s, and the defense witnesses’ testimony in whole or in part in
arriving at its verdict.
{¶ 21} The trial court obviously believed Edna’s version of events because
after the defense completed closing arguments, the trial court stated that,
although defense counsel argued no one positively identified K.S., Edna
testified that she saw K.S. hit Wayne. Accordingly, K.S.’s sole assigned error
is overruled.
{¶ 22} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
The finding of delinquency having been affirmed, any bail or stay of execution
pending appeal is terminated. Case remanded to the trial court for execution
of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR